The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK AFR W.P.(C) No.30857 of 2022 Jitendra Kumar Sahoo …. Petitioner Mr. Adyasidhi Mishra, Advocate -Versus- State of Odisha &others Opposite Parties …. Ms. Biswabara Dash, ASC Mr. S. N. Patnaik, Advocate (OSSC) Mr. L.Dash(1), Advocate (O.P.No.3) CORAM: JUSTICE R.K. PATTANAIK DATE OF HEARING: 30.06.2025 DATE OF JUDGMENT:13.10.2025 1. The present writ petition is at the behest of the petitioner assailing the impugned decision by order dated 9th September, 2022 as at Annexure-9 of opposite party No.2 and the selection and appointment of opposite party No.3 and further to direct the opposite parties to include him in the select list in SEBC category with an appointment order issued in his favour for the post of the Block Social Security Officer (BSSO) within a stipulated period on the grounds inter alia that such decision of the authority concerned is erroneous and legally untenable and hence, liable to be interfered with and set at naught. Page 1 of 11 2. In fact, the representation of the petitioner was rejected by opposite party No.2 vide Annexure-9. As per the pleading on record, opposite party No.2 had published an advertisement to fill up 151 posts of BSSO on contractual basis. The advertisement was published on 1st November, 2017. Although, as per the advertisement, 151 vacancies were advertised but in so far as SEBC category is concerned, only five posts were reserved, whereas, according to the reservation rules, 11.25% of the total posts should have been earmarked for SEBC candidates and hence, there has been a violation in applying the same. It is further claimed that two of the Ex-Servicemen (ESM) candidates, who secured less marks than the petitioner were selected against SEBC reserved category. The claim of the petitioner is that the said two ESM candidates availed reservation when law does not permit a candidate to avail both vertical and horizontal reservations at one time. The petitioner further pleaded that as he secured more marks than opposite party No.3 and one Saroj Kanta Choudhury of SEBC category, he should have been selected on merit but instead opposite party No.2 misinterpreting the reservation rules selected them and therefore, such selection is not sustainable in the eye of law and violative of Article(s) 14 and 16 of the Constitution of India, 1950. 3. The undisputed facts are that the advertisement for the recruitment in question was published on 1st November, 2017 by opposite party No.2 and it was in respect of the posts advertised for the vacancies with following break ups, Page 2 of 11 such as, UR-85, SEBC-5, SC-28 and ST-33. As per the said advertisement at Annexure-1, six vacancies were reserved for Persons with Disabilities (PwDs), six for ESM and two to be filled up from among the Sports Person (SP). The petitioner applied for the post of BSSO as SEBC unreserved candidate and cleared the Preliminary Examination, Mains and finally, the Computer Skill Test and was called for certificate verification as per the notification i.e. Annexure-3 dated 6th December, 2021. The provisional select list was published on 31st December, 2021 by a notification at Annexure-4 releasing the names of 151 candidates and the last selection mark for ESM was 128, whereas, for SEBC non-reserved, it was 151 and the name of the petitioner did not find a mention therein. 4. The petitioner since was not selected, information under the RTI Act was obtained and it was provided as per Annexure-6. According to the petitioner, according to the information shared with him, he scored 150 marks and ESM candidates secured 128 marks. Subsequent to such information received, the petitioner submitted a representation i.e. Annexure-7 to opposite party No.2 and as no decision was taken thereon, he filed W.P.(C) No.11556 of 2022, which was disposed of on 29th July, 2022 with a direction to consider it within a stipulated period. Upon receiving the Court’s order at Annexure-8, opposite party No.2 with a decision vide Annexure-9 rejected the representation with a conclusion that the petitioner secured less marks than the other three non-ESM candidates of the Page 3 of 11 SEBC category, hence, he could not be selected. Against such decision of opposite party No.2, plea of the petitioner is that opposite party No.3 and the other candidate selected belong to SEBC category but as ESM, both could not have been allowed availing vertical and horizontal reservations simultaneously. The other plea is that fewer vacancies were reserved for SEBC category as it should have been 11.25 % of the total posts advertised and therefore, the reservation rules have not been adhered to. 5. In reply, opposite party No.1 filed counter affidavit stating therein that the reservation law has been rightly applied without any deviation and in so far as the plea of the petitioner regarding less number of posts against SEBC category was advertised is concerned, the same is out rightly misconceived, inasmuch as, the principles of reservation relate to the vacancies identified in juxtaposition to the cadre strength and it shall have to be in terms of the law enunciated by the Apex Court in R.K. Sabharwal and others Vrs. State of Punjab and others (1995) 2 SCC 745. It is further pleaded therein that applying 11.25% reservation to SEBC category, in view of the sanctioned posts at 39 with an occupancy position of 34, the rest 5 vacancies, since were to be filled up, had been advertised and therefore, the claim of the petitioner that it should have been more as against 151 posts is totally misplaced and hence, the demand for selection on any such plea advanced is devoid of merit. Page 4 of 11 6. Opposite party No.2 filed a separate counter and pleaded that the petitioner has secured 150 marks, whereas, the last candidate selected under the SEBC category scored 151 marks and hence, he could not be selected. It is also pleaded that the reservation has been correctly applied in respect of the special category candidates and out of five vacancies for SEBC, two were filled up by ESM candidates and remaining three by non-reserved candidates and the same is according to the instructions issued by the GA & PG Department, Government of Odisha as per Annexure-A of the counter. A rejoinder affidavit is filed by the petitioner to the above but additionally advancing a plea that less number of candidates were called for document verification, hence, therefore, the decision on the part of opposite party No.1 is also erroneous in that regard. Referring to the instructions of the Government issued to all the Heads of the Department and others dated 19th January, 2021 at Annexure-10 (same as Annexure-A), it is lastly pleaded that the principles to be followed vis-(cid:224)-vis vertical and horizontal reservations to fill up the civil posts have not been followed. 7. Opposite party No.3 also filed a counter and it is pleaded that any such plea of the petitioner with respect to the percentage of SEBC category posts advertised not to be in
Legal Reasoning
terms of the reservation rules cannot be challenged at a belated stage especially after him having participated in the selection process without any objection. It is also pleaded that opposite party No.2 rightly by following the reservation rules selected opposite party No.3 to the post of BSSO as an Page 5 of 11 ESM candidate belonging to SEBC category and therefore, the claim of the petitioner shall have to be rejected.
Legal Reasoning
8. Heard Mr. Mishra, learned counsel for the petitioner, Ms. Dash, learned ASC for the State, Mr. Patnaik, learned counsel for opposite party No.2 and Mr. Dash(1), learned counsel for opposite party No.3. 9. The advertisement was for the posts of BSSO in respect of 151 vacancies. On the one hand, it is claimed by the petitioner that there is far less number of posts advertised for SEBC category as it should have been 11.25% of the total posts to be filled up, whereas, on the other hand, it is denied by the State and opposite party Nos.2 and 3. The other claim of the petitioner is that he secured more marks than the ESM candidates of SEBC category, who could not have been allowed to avail vertical and horizontal reservations at one and the same time. 10. As per Anexure-10, the State Government released the instructions to follow the principles of reservations at the time of filling up vacancies arising in different civil services and posts keeping in view the judgment of the Apex Court in Rajesh Kumar Daria Vrs. Rajasthan Public Service Commission and others dated 18th July, 2007 in Appeal (Civil) Petition No.3132 of 2007. The selection applying reservations and the manner, in which, it shall have to be accomplished has been discussed with illustrations in Annexure-10 indicating therein that the first selection should be for the open competition quota on the basis of Page 6 of 11 merit; then to select each of the vertical reservation quotas i.e. for SC, ST and SEBC; and the next step would be to find out how many candidates belonging to special reservations (horizontal) have been selected by such means and if the quota fixed for horizontal reservation is satisfied, no further question of selection would arise; if it is not, the requisite number of horizontal reservation candidates shall have to be adjusted/accommodated as against respective vertical reservation categories by deleting the corresponding number of candidates therefrom; and the process of verification and adjustment/accommodation in the manner stated should be applied separately to each of the vertical reservation, wherever required and it may so happen that the reservation in favour of horizontal categories over all may or may not be satisfied. It is also mentioned therein that the Odisha Ex-Servicemen (Recruitment to State Civil Services and Posts) Rules, 1985 since prescribes 3% of vacancies arising in a year in each of the categories of Class-II and Class-III posts and services or Class-IV posts to be filled up by direct recruitment reserved for the ESM candidates, it shall be applied by following the principles of horizontal reservation. 11. In the case of the petitioner, he belongs to SEBC category and admittedly, a non-ESM candidate. As per Annexure-6, the petitioner secured 150 marks. It is also revealed that the last candidate of SEBC category scored 151 marks and therefore, the petitioner was not selected.
Decision
The representation as per Annexure-7 was disposed of and Page 7 of 11 rejected by opposite party No.2 in order to adjust/accommodate opposite party No.3 and the other candidate against horizontal reservation. In fact, the only ground upon which the case of the petitioner was rejected is on the premise that two of the ESM candidates of SEBC category had to be accommodated and hence, the petitioner, who scored less marks than the last candidate of non- reserved SEBC candidate, could not be selected. On a reading of Annexure-10, it is understood that the reservation rules when applied, in absence of requisite number of horizontal reservation candidates, such numbers in respective vertical reservation categories are to be deleted thereby excluding the corresponding number of non- reserved candidates from the select list. In the case at hand, if such an exercise has been undertaken, the Court would be having no hesitation to conclude that two of the ESM candidates were to be picked up, even though, they scored less marks than the petitioner and adjusted/accommodated for having availed horizontal reservation. Since the petitioner scored marks less that the last SEBC non-reserved candidate and when, it is not demonstrated that any ESM candidate could qualify on merit without availing horizontal reservation, the Court shall have to confirm the decision of opposite party No.2. 12. As to the demand of more number of posts to have been advertised for SEBC category candidates, the Court is in agreement with opposite party No.1 as it has to be in consonance with the decision of the Apex Court in R.K. Page 8 of 11 Sabharwal (supra), wherein, it has been held and observed that the expressions ‘posts’ and ‘vacancies’ often used in the Executive instructions providing for reservations are rather problematical; the word ‘post’ means an appointment, job, office, employment; a position to which a person is appointed is to the ‘post’, whereas, ‘vacancy’ relates to an unoccupied post or office; the plain meaning of the two expressions makes it clear that there must be a post in existence to enable the ‘vacancy’ to occur. It has been held therein that the cadre strength is always measured by the number of posts comprising the cadre and the right to be considered for appointment can only be claimed in respect of a post in a cadre and accordingly, the percentage of reservation has to be worked out in relation to the number of posts which form such cadre strength and hence, the concept of ‘vacancy’ has no relevance vis-a-vis percentage of reservation. 13. As per the counter affidavit of opposite party No.1, the sanctioned posts for SEBC category stands at 39, which is 11.25% of the total strength of the cadre and at the relevant point of time, when the advertisement was published, the occupancy position was 34 and therefore, the vacant posts were five only, for which, the recruitment was held. In fact, the vacancies are to be filled up according to roster and rightly, therefore, in the considered view of the Court, for the vacant posts in existence by that time, the advertisement was published. If the roster is not followed and against the total posts advertised, reservation of 11.25% is applied, it Page 9 of 11 would cause imbalance between the reserved and general categories in the cadre. In R.K. Sabharwal (supra), the said aspect was examined and it has been observed therein that if the roster is permitted to operate till the total posts in a cadre are absorbed and thereafter, the vacancies falling in the cadre are filled up by the same category of persons, whose retirement etc. caused the vacancies to arise, then the balance vis-a-vis reserved and general categories shall always be maintained. Thus, the Court is of the conclusion that against 151 vacancies, the petitioner cannot claim more number of posts for SEBC category with a plea that the reservation of 11.25% has not been applied. Such reservation is made applicable as against the cadre strength and on a roster point basis and therefore, the recruitment held in respect of vacant posts are to be considered taking into account the occupancy position. Therefore, the plea of the petitioner demanding more number of posts to have been earmarked for SEBC category candidates as against the stand of opposite party No.1 besides the other plea as to non-availability of horizontal reservation alongside vertical reservation must have to fail for the reasons discussed herein before. The other contention advanced about less number of candidates called for document verification, hence, the exercise is faulty, as according to the Court, even assuming it to be correct, the same would not have changed the position or in any way improved the case of the petitioner and therefore, the further conclusion is that such plea is of no relevance. Page 10 of 11 14. Hence, it is ordered. 15. In the result, the writ petition stands dismissed. Balaram (R.K. Pattanaik) Judge Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 15-Oct-2025 19:24:21 Page 11 of 11