Orissa High Court
Parsuram Padhi vs District Judge Cum Chairman District ... on 30 January, 2017
Author: B.K. Nayak
Bench: B.K. Nayak
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No. 20236 OF 2013
An application under Articles 226 and 227 of the Constitution of India.
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Parsuram Padhi ........ Petitioner
-Versus-
District Judge-cum-Chairman,
District Recruitment Committee, Balasore
and another
......... Opp. parties
For Petitioner : M/s. M. K. Khuntia, G.R. Sethi,
J. K. Digal, B.K. Pattnaik & S. Nanda
For Opp. Parties : Mr. Bibhu Prasad Tripathy,
Addl. Government Advocate
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P R E S E N T :-
THE HONOURABLE MR. JUSTICE B.K. NAYAK
AND
THE HONOURABLE DR. JUSTICE D.P. CHOUDHURY
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Date of Argument-30.11.2016: Date of Judgment-30.01.2017
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DR. D.P. CHOUDHURY, J. This writ petition has been filed challenging
the advertisement made vide Annexure-5 with regard to the
recruitment of Salaried Amin and for consequential relief.
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FACTS :
2. Short of unnecessary details the case of the petitioner is
that the petitioner having passed +2 Upasastri and Survey Training
Certificate applied for the post of Salaried Amin in pursuance of the
advertisement made by opposite party No.2 on 11.5.2012. Be it
stated, the advertisement was purportedly made for filling up of one
post of Salaried Amin under un-reserved category. The petitioner in
the recruitment test got succeeded amongst three successful
candidates. His name was placed at Sl. No.2 whereas one Sanjib
Kumar Barik finds his name at Sl. No.1. Since there was one vacancy,
the said post was filled up by Shri Barik by appointing him on
16.4.2013.
3. It is averred, inter alia, that before completion of one year
from the date of first appointment, the opposite parties made
advertisement on 7.5.2013 (Annexure-5) to fill up another single post
of Salaried Amin showing the same under reserved category (S.T.) in
violation of the Orissa District and Sub-ordinate Courts Non-Judicial
Staff Service (Method of Recruitment and Conditions of Service) Rules,
2008 (hereinafter called "the Rules, 2008").
4. It is stated that the advertisement made in 2013 should
have been made for the post of un-reserved category because the post
fell vacant due to superannuation of Shri Salil Kumar Dash who
belongs to un-reserved category. So, the petitioner is challenging the
advertisement which was made before completion of one year from
the date of first appointment keeping the said vacancy for the
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candidate of reserved category although such post was required to be
filled up due to superannuation of Shri Salil Kumar Dash, a member of
the un-reserved category. Hence, the petitioner prays to quash the
advertisement made under Annexure-5 with regard to Salaried Amin
and to direct the opposite parties to appoint him as Salaried Amin
against the existing vacancy.
5. Per contra, the opposite parties filed counter affidavit and
additional affidavit refuting the allegation made in the writ petition. It
is admitted by the opposite parties that there was advertisement in
2012 to fill up the post of one Salaried Amin under unreserved
category and the candidate who topped the merit list was given
appointment. The opposite parties in the additional affidavit stated
that as per 80 point Model Roster due to retirement of one Nidhiram
Behera a single post of Salaried Amin was to be filled up for the S.T.
category in 2012 but by mistake the advertisement was made for
filling up of the vacancy under unreserved category. Since the
advertisement was made for unreserved category and one Sanjib
Kumar Barik who belongs to unreserved category and topped the merit
list, was appointed.
6. It is further stated that in the next recruitment year 2013,
in order to rectify the mistake, the vacancy was advertised for S.T.
category following the provisions of ORV Act and Rules by carrying
forward the S.T. vacancy to 2013 because as per the roster point the
vacancy for S.T. category was to be filled up in 2012. Be it stated that
the advertisement in 2013 being made observing the Rules, 2008 read
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with the ORV Act and Rules, the advertisement vide Annexure-5 was
legal and proper.
SUBMISSIONS
7. Mr. Khuntia, learned counsel for the petitioner submits that
the advertisement for filling up of the single post under unreserved
category being made by the opposite parties is clear violation of the
Recruitment Rules, 2008 and ORV Act and Rules. He further submits
that without waiting for one year to be lapsed from the date of first
appointment, the advertisement for filling up of the single post under
S.T. category during 2013 is a gross violation of Rules, 2008. It is
contended that in view of the clear admission by the opposite parties
that the 2102 advertisement was made in violation of the ORV Act and
Rules to fill up the post of Salaried Amin during 2012 and in order to
correct the mistake again another advertisement was made within one
year in 2013, is clear indication of invalid and incorrect advertisement
made in the year 2013 to fill up the single vacancy from the S.T.
category. According to him, had there been the roster point being
followed in the subsequent year to fill up the post of un-reserved
category which falls due to retirement of Shri Salil Kumar Dash on
18.2.2013, the petitioner could have applied for the post being the
member of the un-reserved category. Since the advertisement made
vide Annexure-5 is violative of the Rules, 2008 and the ORV Act and
Rules, the same is liable to be quashed and the petitioner should be
appointed as he was selected in 2012 for the post of Salaried Amin.
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8. Mr. Tripathy, learned Additional Government Advocate
submits that as per 80 point model roster, the vacancy advertised in
2012 was to be filled up by the S.T. candidate, but due to inadvertence
and misconception, the advertisement was made in 2012 to fill up the
post of Salaried Amin under the unreserved category, the reserved
vacancy was carried forward to the next year and rightly advertised in
2013 to fill up the same from the S.T. category. He also submits that
the irregularity made in the year 2012 has been rectified in 2013 but
at any rate the petitioner having been placed at Sl. No.2 in the select
list of 2012 and there being no vacancy for unreserved category, the
petitioner has no right to challenge the advertisement made in 2013.
In this regard, Section 7 of the Orissa Reservation of Vacancies in Post
and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 is
extracted below:-
"7. If, in any recruitment year, the number of
candidates either from Scheduled Castes or Scheduled Tribes
is less than the number of vacancies reserved for them even
after exchange of reservation between the Scheduled Castes
and Scheduled Tribes, the remaining vacancies may be filled
up by general candidates after dereserving the vacancies in
the prescribed manner but the vacancies so dereserved may
be carried forward to subsequent three years of recruitment:
Provided that in the years following the recruitment
year the normal reserved vacancies together with the
vacancies carried forward shall not exceed fifty per cent of
the total number of vacancies of the year in which
recruitment is made and the excess over fifty per cent of the
reserved vacancies shall be carried forward to subsequent
years of recruitment:
xx xx xx xx"
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Mr. Tripathy, learned Additional Government Advocate
further submits that the petitioner being not a candidate in pursuance
of the advertisement made during the year, 2013, has no locus standi
to file this case for his appointment during the year 2013. So, he
submits to dismiss the writ petition.
9. POINTS FOR DETERMINATION
(i) Whether the advertisement made in 2013 vide Annexure-5 is legal
and proper to fill up the single post of Salaried Amin under S.T.
category?
DISCUSSION
10. It is the admitted fact that on 11.5.2012, an advertisement
was made by the District Judge, Balasore to fill up a single vacancy
under un-reserved category and the petitioner, in pursuance of the
said advertisement, applied and got selected but was placed in the
second position for which the first person in the merit list was
appointed in that year. It is also not in dispute that on 7.5.2013 vide
Annexure-5, there was an advertisement to fill up a single post of
Salarid Amin from Scheduled Tribe category and the petitioner, being a
member of unreserved category, did not apply for such post.
11. Considering the submissions and pleadings and after going
through the register of Roster placed before us, it appears that the
single vacancy that was to be filled up in 2012 was meant for reserved
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(S.T.) category but by mistake advertisement was made under
unreserved category. Therefore, as per the stand taken by the
opposite parties, the reserved vacancies could not have been left
unfilled and the mistake perpetuated, and that as soon as the next
vacancy occurred, though on retirement of an unreserved employee,
the said vacancy was advertised for reserved (S.T.) category in order
to rectify the mistake.
12. The Hon'ble Supreme Court of India, in the case of Indra
Sawheny -V- Union of India; AIR 1993 SC 477, has held that the
number of vacancies to be filled up on the basis of reservation in a
year including the carry forward reservation which should in no case
exceeds ceiling limit of 50%. But in the case of M. Nagaraj & Others
-V- Union Of India & Others; (2006) 8 SCC 212, the Hon'ble
Supreme Court has held that Article 16(4-B) lifts the 50% cap on
carry-over vacancies (backlog vacancies).
13. Relying on the decision in the case of T.Devadasan -V-
Union of India: AIR 1964 SC 179, the Hon'ble Supreme Court in
the case of Arati Ray Choudhury -V- Union of India & others;
AIR 1974 SC 532 have observed as under:
"xx xx xx xx
and that is directly relevant for our purpose, if
there be only one vacancy to be filled in a given
year of recruitment, it has to be treated as
unreserved irrespective of whether it occurs in the
model roster at a reserved point. The appointment
then is not open to the charge that the
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reservation exceeds 50% for, if the very first
vacancy in the first year of recruitment is in
practice treated as reserved vacancy, the system
may be open to the objection that the reservation
not only exceeds 50% but is in fact cent per cent.
But, if "on this account", that is to say, if on
account of the requirement that the first vacancy
must in practice be treated as unreserved even if
it occurs in the model roster at a reserved point,
"a reserved point is treated as unreserved" the
reservation can be carried forward to not more
than two subsequent years of recruitment.
xx xx xx xx"
14. The Hon'ble Supreme Court, in the case of Malkhan Singh
-V- Union of India and others; (1997) 2 SCC 39, following the
decisions in the aforesaid cases, have observed that where only one
vacancy occurs in the initial recruitment year and the corresponding
roster point happens to be for a Scheduled Caste or Scheduled Tribe, it
should be treated as unreserved and filled up accordingly and the
reservation should be carried forward to subsequent three recruitment
years.
15. In the aforesaid cases, a single vacancy arose at roster
point which has been reserved for a reserved category candidate but it
was filled up by an unreserved category candidate and subsequently it
was carried forward to next two years. Similarly, the footnote of the
Orissa Reservation of Vacancies in Posts and Services (for Scheduled
Castes and Scheduled Tribes) Rules, 1976 speaks in the following
manner:-
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"NOTE-If there are only two vacancies to be filled in a
particular year, not more than one may be treated as
reserved. If there be only one vacancy, in a particular year
which falls on a reserved point in the roaster, it will be treated
as unreserved in the first instance and filled accordingly but
the reservation shall be carried forward to subsequent
year(s). In the subsequent year(s) the reservation shall be
applied by treating the vacancy arising in that year as
reserved even though there might by only a single vacancy in
that subsequent year(s)."
Thus, the aforesaid provision is on the line of the
Constitution Bench judgment of the Hon'ble Apex Court in Arati Ray
Choudhury (Supra).
16. Relying upon the aforesaid decisions and provisions of law,
we are of the view that in the instant case, when the single post
advertised during the year 2012 was actually meant for the Scheduled
Tribe, but the same was filled up by unreserved category, such
reserved category was carried forward to next three years. Since there
is single vacancy again in 2013, such reservation vacancy being
carried forward from previous year, is advertized to fill up the same in
the year 2013 even if as per roster point, vacancy was to be filled up
by unreserved category. In no case, a post of reserved category can be
compromised, but at least it can be carried forward to the next year to
be filled up keeping in view the jurisprudence of the reservation. The
rule of reservation being constitutionally tested and valid has to be
always kept in view so as to observe the Constitutional Mandate as
postulated by the Constitution.
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17. In view of the aforesaid analysis, we are of the view that
the post having been carried forward to 2013 under reserved vacancy,
cannot be said to be faulted with even if the opposite parties submit
that the advertisement in 2012 was made inadvertently. On the other
hand, the advertisement made in 2013 to fill up a single post of S.T.
for Salaried Amin is correct, valid and proper. The issue is answered
accordingly.
CONCLUSION
18. Bereft of the above discussion, there is another submission
of the learned counsel for the petitioner to the effect that as per the
Orissa District and Sub-ordinate Courts' Non-Judicial Staff Services
(Method of Recruitment and Conditions of Service) Rules, 2008, the
previous year vacancy has to be valid for one year after which the next
year vacancy would be advertized. In the instant case, the single
vacancy advertised to be filled up during 2012 and has been filled up
by a candidate at Serial No.1 of the select list. The petitioner, being at
Serial No.2, has no locus standi to challenge the same. Similarly, when
the advertisement of 2012 is found not illegal and the petitioner is not
a successful candidate to be issued with letter of appointment, the
challenge by him to the second advertisement in 2013 for reserved
category post is untenable. On the other hand, the petitioner claims
that the second advertisement is illegal because he was deprived of
from making application for the post which was advertized for the
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reserved category. We have already observed in the above paragraphs
that the carry forward of single reserved vacancy to the next year and
make advertisement of the same is valid and legal for which the
submission of the learned counsel for the petitioner that the petitioner
is deprived of from making application in 2013 is indefensible.
The writ petition being devoid of merit stands dismissed.
..................................
Dr. D.P. Choudhury, J
B.K. Nayak, J.I agree.
.................................. B.K. Nayak, J Orissa High Court, Cuttack Dated the 30th January, 2017/ JM 12