The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) No.182 of 2019 In the matter of an application under Section 19 of the Administrative Tribunal Act, 1985. ……………… Pradeepta Kumar Samal …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner : Mr. B.S. Rayaguru For Opp. Parties Intervenor-petitioner & State Counsel. Mr. S.K. Das, Advocate for : PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------- Date of Hearing:24.04.2023 and Date of Order:10.05.2023 -------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. I.A. No.1127 of 2022 in W.P.C(OAC) No.182 of 2019 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Even though the matter is listed today for orders, but on the consent of the learned counsels appearing // 2 // for the parties, the matter was finally heard and
Decision
disposed of. 3. Heard Mr. B.S. Rayaguru, learned counsel for the Petitioner and Mr. S.K. Das, learned counsel appearing for Intervenor-petitioner and learned Addl. Govt. Advocate for the State. 4. The Petitioner has filed the present Writ Petition seeking quashing of the notice dated 07.12.2018 and notice dated 11.01.2019 so issued by the Opposite Party No.2 under Annexures-4 and 5, as well as the selection procedure so undertaken for recruitment to the post of Public Prosecutor pursuant to Advertisement No.05 of 2016-17. The petitioner also prays to declare the action of the Opposite Party No.2- Commission in debarring the petitioner to appear in the viva-voce test for the said post as illegal. 5. Learned counsel for the petitioner contended that pursuant to the advertisement issued by the Odisha Public Service Commission in short <Commission= vide Advertisement No.05 of 2016-17 under Annexure-1, the petitioner made his application for the post of Public Page 2 of 12 // 3 // Prosecutor. It is contended that even though the application of the petitioner was duly accepted and he was allowed to take part in the written examination held on 11.08.2018 and 12.08.2018 but the Commission while publishing list of 31 candidates provisionally selected to take the viva-voce test vide notice dated 07.12.2018 under Annexure-4 did not allow the petitioner to take the Viva-voce test. Subsequently after conducting the viva- voce test, the Commission issued the notice dated 11.01.2019 recommending 12 nos. of candidates, who have qualified the selection for the post of Public Prosecutor under Annexure-5. The Petitioner being deprived from the purview of such selection as well as challenging the illegal conduct of the recruitment test, is before this Court in the present Writ Petition. 5.1. It is also contended that even though the petitioner in the written test secured 180 marks in total, but candidates securing less mark than the petitioner, were called to appear the viva-voce test. It is also contended that candidates who secured 180 marks were called to take the viva voice test, whereas Page 3 of 12 // 4 // the petitioner was debarred to take the test because of the illegal action of the Opposite Party No.2. 5.2. Learned counsel for the Petitioner further contended that the petitioner is an A.P.P. attached to the Court of learned S.D.J.M., Bhadrak since 2015 and because of his experience and knowledge as well as his performance in the written examination, he was required to be called to the viva voice test vide notice dated 07.12.2018 under Annexure-4. But, because of the illegal exclusion of his name from the list, so published by the Commission under Annexure-4, he was not allowed to take part in the viva voice test and consequentially he was also deprived from the purview of selection while Opposite Party No.2 recommended the selected candidates vide notice dated 11.01.2019 under Annexure-5. 5.3. It is also contended that while calling the candidates for the viva voice test, the Commission also did not follow the ratio of 1:3 as indicated in the advertisement under Annexure-1 and as against 12 posts so advertised the Commission only called 31 candidates to take the viva voice test vide Annexure-4. Page 4 of 12 // 5 // It is also contended that even though in the advertisement out of the 12 posts meant for UR category, 4 posts are reserved for women candidates, Opposite Party No.2 should have called 12 numbers of women candidates to take the viva-voce test. Making all such submissions, learned counsel for the Petitioner contended that the selection process so conducted by the Opposite Party No.2 in terms of Annexure-1 having been vitiated, the said process of selection is not only illegal but also the consequential selection of 12 candidates, so issued vide notification dated 11.01.2019 under Annexure-5. 6. Learned counsel appearing for the Commission on the other hand contended that pursuant to the Advertisement issued under Annexure-1, the petitioner made his application and the same after being accepted, he was allowed to take part in the written examination which was held on 11.08.2018 and 12.08.2018. The commission taking into account the performance of the candidates in the written test, short listed the candidates to be called for the viva voice test and called 31 candidates to take the viva voice test vide Page 5 of 12 // 6 // notification dated 07.12.2018 under Annexure-4. The Commission conducted the viva voice test on 27.12.2018 and 28.12.2018 and the final select list was published on 11.01.2019 under Annexure-5. 6.1. It is contended that in the advertisement issued under Annexure-1 all the post were kept unreserved and out of 12 nos. of vacancies, 4 posts were for UR (women). But the petitioner though was not coming within the age group, as provided under Clause-3 of the advertisement, but made his application by availing the benefit of age relaxation having belong to SEBC(M) category. It is contended that since the petitioner availed the benefit of age relaxation as a reserve candidate and no post was reserved for SEBC Category in the advertisement issued under Annexure-1, petitioner was not found eligible and accordingly he was not called to take the viva-voce test, while issuing notice under Annexure-4. It is accordingly contended that no illegality has been committed by the Commission with regard to the conduct of the recruitment in terms of Annexure-1. It is also contended that the petitioner after having participated Page 6 of 12 // 7 // in the selection process in terms of Annexure-1, he cannot challenge the process of selection after becoming unsuccessful. Ms. Mohanty, learned counsel appearing for the Commission, in support of her aforesaid submission relied on the decision of this Court reported in 2010 (Supp II) OLR 437. This Court in Paragraph 12 of the judgment has held as follows: this writ challenging <12. Additionally, it is seen that the petitioner has applied to be selected in the second advertisement also. Now after being unsuccessful in her attempt to get selected, the petitioner has filed the petition advertisement dated 09.07.2007. In Dhananjay Malik and others v. State of Uttaranchal and others, (2008) 4 SCC 171=2009 AIR SCW 3265; the Apex Court held that when the petitioner took a chance by appearing in the selection process and only after themselves as successful candidates, they cannot challenge the In other words, when the selection process. petitioner has applied for being selected and took part in the selection process without any demur, she cannot later on challenge the issuance of the is estopped and second advertisement. She precluded the said selection process.= they did not find the questioning 7. Mr. S.K. Das, learned counsel for the Intervenor-petitioner on the other hand made his submission taking into account the stand taken in his I.A. No.1127 of 2022. It is contended that even though the intervenor-petitioner- Brundaban Nayak-Opp. Party No.3 was placed at Serial No.9 of Page 7 of 12 // 8 // the final select list under Annexure-5 and out of the 12 selected candidates, 11 candidates have been provided with appointment, because of the interim order passed by the Tribunal on 28.01.2019, Opposite Party No.1 is not providing appointment to the intervenor-petitioner. It is also contended by the learned counsel appearing for the Intervenor- petitioner that since in the advertisement under Annexure-1, no post was reserved SEBC category and the petitioner availed the benefit of age relaxation while making his application and commission accordingly allowed him to take part in the recruitment process, in view of the recent decision of the apex Court in the case of Niravkumar Dillipbhai Makwana Vs. Gujarat Public Service Commission and Others, reported in (2019) 7 SCC 383, the petitioner is not entitled to get the benefit of appointment as against UR vacancy. It is accordingly contended that in view of the decision as cited supra, the petitioner having availed the benefit of age relaxation as a reserved category candidate, he cannot get the benefit of Page 8 of 12 // 9 // appointment as against the UR vacancy. Hon’ble Apex Court in paragraphs 21 to 24, 27 & 30 in the case of Niravkumar Dillipbhai Makwana, as cited (supra) has held as follows: 21. In the advertisement published by the GPSC inviting applications from the eligible candidates for the post of ACF (Class II) and RFO (Class II) dated 01.03.2010, upper age limit relaxation was granted to the candidates belonging to SC/ST and SEBC category. It was also specifically stated in the advertisement that if any candidate belonging to reserved category who applies in the open category, such candidate would not get the benefit of age relaxation. Such age relaxation was granted in pursuance to Rule 8 of Rules of 1967. "8. Condition as to prescribed qualifications: 1) xxxx 2) Where the prescribed qualification include a qualification as to age limit the appointing authority may relax the age limit in favour of candidates belonging to the Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Class and in favour of candidate who are women to the following extent, that is to say: (a) in the case of a service or post in a subordinate service or of a State Service in respect of which the prescribed age limit does not exceed forty years, the age limit may be relaxed to the extent of five years. (b) in the case of service or post in the State Service in respect of which prescribed age limit exceeds forty years, the age limit may be relaxed to the extent of maximum five years, so as to provide that upper age limit for entry in the service does not exceed forty five years." 22. Article 16(4) of the Constitution is an enabling provision empowering the State to make any provision or reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the service under the State. It is purely a matter of discretion of the State Government to formulate a policy for concession, exemption, preference or relaxation either conditionally or unconditionally in favour of the backward classes of citizens. The reservation being the enabling provision, the manner and the extent to which reservation is provided has to be spelled out from the orders issued by the Government from time to time. 23. In the instant case, State Government has framed policy for the grant of reservation in favour of SC/ST and OBC by the Circulars dated 21.01.2000 and 23.07.2004. The State Government has clarified that when a relaxed standard is applied in selecting a candidate for SC/ST, SEBC category in the age limit, experience, qualification, permitting number of chances in the written examination etc., then candidate of such category selected in the said manner, shall have to be reserved post. Such considered only against his/her Page 9 of 12 // 10 // a candidate would be deemed as unavailable for consideration against unreserved post. 24. Now, let us consider the judgment in Jitendra Kumar Singh (supra). In this case, this Court was considering the interpretation of Subsection (6) of Section 3 of U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (for short "1994 Act") and the Government Instructions dated 25.03.1994. Sub section (6) of Section 3 of this Act provided for reservation in favour of Scheduled Castes, Scheduled Tribes and other Backward Classes which is as under: "3. (6) If a person belonging to any categories mentioned in subsection (1) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under sub- section (1)." xxx xxx xxx 27. In Deepa, the appellant had applied for the post of Laboratory Assistant Grade II in Export Inspection Council of India functioning under the Ministry of Commerce and Industry, Government of India under OBC category by availing age relaxation. The Department of Personnel and Training had issued proceedings O.M. dated 22.05.1989 laying down the stipulation to be followed by various Ministries/Departments for recruitment to various posts under the Central Government and the reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes candidates. Paragraph 3 of the said O.M. is as under: "3. In this connection, it is clarified that only such SC/ST/OBC candidates who are selected on the same standards as applied to general candidates shall not be adjusted against reserved vacancies." xxx xxx xxx 30. Taking into consideration the above circular, this Court held that the ratio of the judgment in Jitendra Kumar Singh (supra) has to be read in the context of statutory provisions and the GO dated 25.03.1994 and the said observation cannot be applied in a case where the Government Orders are to the converse effect. It was held as under: "32. We are of the view that the judgment of this Court in Jitendra Kumar Singh which was based on statutory scheme and the Circular dated 2531994 has to be confined to scheme which was under consideration, statutory scheme and intention of the State Government as indicated from the said scheme cannot be extended to a State where the State circulars are to the contrary especially when there is no challenge before us to the converse scheme as delineated by the Circular dated 24.6.2008." 08. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that by the time the petitioner made his application in terms of Annexure-1, he was not Page 10 of 12 // 11 // coming within the age group as provided under Clause- 3 of the advertisement. The application of the petitioner was entertained after allowing him age relaxation as per Government rules and the petitioner having belong to SEBC category. Since the petitioner availed the benefit of age relaxation and participated in the recruitment process as a SEBC candidate, the petitioner cannot claim the benefit of appointment as against UR vacancies. Since in the advertisement under Annexure-1 all the vacancies were meant for UR category, this Court finds no illegality or irregularity with regard to the action of the Commission in not selecting the petitioner as against the UR vacancy. It is also the view of this Court that once the petitioner participated in the selection process, after becoming unsuccessful he cannot challenge the process of selection in view of the decision of this Court as cited supra. 8.1. Hence, in any view of the matter, the claim of the petitioner is not sustainable and accordingly this Court is not inclined to entertain the prayer of the petitioner. Since this court is not entertaining the prayer of the Page 11 of 12 // 12 // Petitioner and is of the view that the Petitioner after availing the benefit of age relaxation as a reserve category candidate cannot claim for his appointment as against UR vacancy, all the selected candidates impleaded as Opp. Party Nos. 3 to 12 having been selected and appointed as UR candidates, this Court is inclined to dispose of the Writ Petition at this stage. While dismissing the Writ Petition, this Court vacates the interim order so passed on 28.01.2019. 09. The Writ Petition is accordingly dismissed. Orissa High Court, Cuttack Dated the 10th of May, 2023/Basudev (Biraja Prasanna Satapathy) Judge BASUDEV SWAIN Digitally signed by BASUDEV SWAIN Date: 2023.05.11 11:43:05 +05'30' Page 12 of 12