Orissa High Court
Akshaya Kumar Swain vs State Of Odisha And Others on 5 January, 2017
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.19250 of 2012
In the matter of application under Articles 226 and 227 of the
Constitution of India.
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Akshaya Kumar Swain ...... Petitioners.
- Versus-
State of Odisha and Others ...... Opposite Parties.
Counsel for Petitioner : M/s. M. S. Panda, M. Panda and S. R.
Nayak.
Counsel for Opp.Parties : Addl. Government Advocate.
PRESENT:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
&
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment : 05.01.2017
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S. N. Prasad, J.This petitioner / applicant being aggrieved with the order dtd.26.7.2012 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.3037(c) of 2010 has filed this writ petition whereby and where under the relief sought for by him for a direction upon the respondents to give 27% of reservation to the candidates belonging to S.E.B.C. category, as provided in Orissa Reservation of Posts and Services (for Socially and Educationally Backward Class) Act, 2008 (for short „the Act‟) in respect of post of Sub-Inspector of Police, Sergeant of Police and Deputy Subedar and accordingly modify the selection list dtd.30.7.2010, as also for a direction to 2 the respondents to give 5 years relaxation of age limit to the applicant in respect of the post of Sub-Inspector of Police and Deputy Subedar and to reconsider the case of the applicant against the said post by declaring him eligible to be considered for the same, has been rejected.
2. The brief fact of the case is that the applicant belongs to Socially and Educationally Backward Class (in short S.E.B.C). The Orissa Staff Selection Commission issued an advertisement in the daily newspaper "The Samaj" dtd.26.12.2008 (Annexure-2) inviting applications for combined competitive examination for recruitment for Group-C post in the Orissa Police Service, Orissa Prisons Service and Orissa Fire Service-2009. Pursuant to such advertisement, the applicant applied for the post of Sub-Inspector of Police, Sergeant of Police, Deputy Subedar and Assistant Jailor. The applicant came out successful in the preliminary test and was called to undergo physical test. He also qualified in the physical test and was issued with an admission letter permitting him to take part in the written examination to be held on 20 th September, 2009. The applicant sat in the written examination and was duly selected. He received a call letter dtd.31.5.2010 asking him to appear in the viva voice test-cum-psychological test in the Commission‟s Office on 31.7.2010 at 9.30 A.M. The respondents gave effect to the provisions of the Act by providing 27% reservation to S.E.B.C. candidates for the post of Asst. Jailor and Fire Service, but such reservation was limited to 11.25% only for the post of Sub-Inspector of Police, Sergeant of Police and Deputy Subedar, thus, the policy of reservation adopted by the respondents for the post of Sub-Inspector 3 of Police, Sergeant of Police and Deputy Subedar is in contravention of Sec.3 of the Act.
The grievance of the applicant is that the respondents should have also permitted 27% reservation for the post. Further, the advertisement permitted age relaxation by 3 years only for S.E.B.C. candidates, whereas Sec.6(a) of the Act provides for age relaxation by 5 years.
It is the case of the applicant that if the respondents had permitted age relaxation by 5 years the applicant would have been eligible to compete for the post of Sub-Inspector of Police and Deputy Subedar and as such the applicant has prayed for allowing 27% reservation and 5 years of age relaxation to S.E.B.C. candidates and to reconsider his eligibility accordingly.
3. While on the other hand the case of the opposite parties is that the Odisha Administrative Tribunal in an order passed in O.A. No.1854 (C) of 2008 directed to limit reservation to 50% and in compliance to the said order reservation for the candidates belonging to S.E.B.C. category was reduced from 27% to 11.25%. Since there was a conflict between the decision of the Tribunal and the Provisions of the Act, a clarification was sought for from the Government and the Government took the decision that as an interim measure 15.75% of the vacancies to be filled up by direct recruitment in each recruitment year, should be kept vacant and the balance 11.25% of the vacancies should be filled up by candidates belonging to S.E.B.C. category. The reduction of upper age limit was allowed keeping in view the decision of the Tribunal in O.A. No.821(C) of 2009.
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The Orissa Staff Selection Commission has filed a separate counter affidavit, pleaded therein that it was mentioned in the advertisement that number of vacancy and reservation position is subject to change as per reservation policy and the rule prevalent at the time of short listing and for publication of results. While undertaking recruitment process in the combined police examination, no information was received by the Commission from other authorities for alteration of the vacancies or reservation position. The Act was published by the Law Department Notification dtd.7.2.2009 and the advertisement had been issued much prior to that date, since the Act came into force after the advertisement, the legality of the advertisement cannot be questioned on the basis of the provisions of the Act.
In the backdrop of the submission advanced on behalf of the parties, the Tribunal has decided the issue against the applicant which is under challenge in this writ petition.
4. We have heard the learned counsels for the parties and gone through the materials available on record.
We have gathered from the rival submissions advanced on behalf of the parties on the basis of pleading made in the affidavit and the order impugned that the sole question revolves round for its adjudication in the instant writ petition as to whether the ceiling of 50% reservation can go beyond the ceiling limit of 50%?
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We have thought it proper in order to answer the issue to refer the statutory provision as well as the authoritative pronouncement of the Hon‟ble Apex Court in this regard, relevant statute for the purpose of the issue involved in this case is the Orissa Reservation of Posts and Services (for Socially and Educationally Backward Class) Act, 2008, which has been enacted upon by the State of Orissa to provide reservation of posts and services under the State for Socially and Educationally Backward Classes and for matters connected therewith or identical thereto. Section 3 of the said Act provides reservation to the extent of 27% of the posts and service under the State in case of direct recruitment, for Socially and Educationally Backward Classes subject to the exclusion of creamy layer.
Provided that if a candidate belonging to the Socially and Educationally Backward Class is selected on his own merit while competing with others and secures an appointment, his appointment as such shall be shown against the post left unreserved and his appointment as such shall not be added to any post reserved for the Socially and Educationally Backward Classes and shall not be taken into consideration for working out the percentage of reservation meant for the Socially and Educationally Backward Classes. The Act has come into force w.e.f.07.02.2009.
The sole grievance raised by the petitioner in the instant case is that they be given benefit of reservation to the extent of 27% as per the Act, 2008 which came into force on 7th February, 2009 on the ground that the benefit of reservation to the extent of 27% has been given in a matter of appointment for the post of Assistant Jailor and Station Officer (Fire Service) 6 and as such the applicant is entitled to get the similar treatment for the purpose of getting the benefit of reservation to the extent of 27%.
We have gathered from the Act, 2008 that the State of Orissa has enhanced the percentage of reservation in some posts and services for Socially and Educationally Backward Classed in initial recruitment from 11.25% to 27% as there are peculiar features in the social, economic and physical infrastructure of Orissa to make out special case in terms of the judgment of the Hon‟ble Supreme Court in the case of Indra Sawhney Vrs. Union of India, reported in AIR 1993 SC-477, for providing reservation beyond the limit of 50% in posts and services under the State, but however the said decision has been struck down by the Odisha Administrative Tribunal in O.A. No.1737(C)/98 in the case of Harapriya Dash Vrs. State of Orissa whereby and where under the Tribunal vide its order dtd.14.12.1998 declared that reservation cannot exceed 50% and that the said Resolution dated the 8th December, 1994 is contrary to the principles of law decided by the Hon‟ble Apex Court in Indra Sawhney case (supra) on the ground that by no stretch of imagination, can Orissa be treated as far-flung and remote area and the people of this State out of mainstream of national life. The State of Orissa preferred a writ petition against the said order of the Orissa Administrative Tribunal before the High Court of Orissa, which dismissed the writ petition by judgment and order dated the 17th April, 2007 by taking into consideration the judgment of the Hon‟ble Supreme Court in case of M. Nagraj and others Vrs. Union of India, reported in 2006 (8) S.C.C. 212, the State against the judgment preferred a Special Leave Petition before the Supreme Court and the Hon‟ble 7 Supreme Court had also dismissed the Special Leave Petition and as such taking recourse of the provision of clause (4) of Article 16 of the Constitution which enables the State to make any provision for the 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 services under the State and the State Government thereafter have taken a policy decision that the posts and services under the State shall be reserved for the Socially and Educationally Backward Classes to the extent of 27% in initial recruitment.
It is in the backdrop of this situation the Act, 2008 has came into existence w.e.f.07.02.2009, basis upon which the petitioner has made a prayer before the Tribunal to extend the benefit of reservation to the extent of 27% in the matter of direct recruitment.
5. We after going through the provision of the Act and the judgments pronounced by the Hon‟ble Apex court in the case of Indra Sawhney Vrs. Union of India (supra) wherein the Constitution Bench of Hon‟ble Supreme Court has been pleased to hold that the limit of reservation will not exceed 50%, but however, in the said judgment it has also been indicated that in the interest of backward class of citizens, the state cannot reserve all the appointments under the State or even a majority of them. The doctrine of equality of opportunity in clause-1 of Art.16 is to be reconciled in favour of backward classes under clause 4 of Art.16 in such a manner that the latter while serving the clause of backward classes shall not unreasonably encroach upon the field of equality.
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In the case of Trilok Nath Titu Vrs. State of Jammu and Kashmir, reported in AIR 1967 SC 1283 wherein it has been held by the Hon‟ble Apex Court that where the percentage of reservation is not reasonable, having regard to employment opportunities of the general public to the cadre of service in question, the population of the entire State, the extent of their backwardness and the like, the interference by the Court against unreasonable reservation is called for.
The Hon‟ble Apex court has further been pleased to hold in the case of R. K. Sabharwal and Others Vrs. State of Punjab and Others, reported in (1995) 2 SCC 745 by its Constitution Bench and provided the measure so that the limit of 50% reservation may not exceed and for that purpose the proposition has been laid down for making a roster indicating reserved points, required by the Government instruction to be implemented in the form of running account from year to year, it has further been held that the percentage of reservation has to be worked out in relation to the number of posts which form the cadre strength. The concept of vacancy has no relevance in operating the percentage of reservation. This principle has been evolved so that the ceiling limit of reservation may not go beyond 50%.
The Hon‟ble Apex Court yet in another judgment rendered in the case of Post Graduate Institute of Medical Education and Research, Chandigarh Vrs. Faculty Association and Others, reported in (1998) 4 SCC 1, wherein the subject matter was as to whether in a single cadre post, reservation for SCs, STs and OBCs can be applied either directly or through the roster in which vacancies are rotated amongst general category and 9 reserved category candidates, the Hon‟ble Apex court holding therein has stated that where such a single post in the cadre is there, it cannot be reserved, otherwise it will create 100% reservation of such post whenever such reservation is to be implemented.
It has further been held that Articles 14, 15 and 16 including Art.16(4) 16(4-A) must be applied in such a manner that balance is struck in the matter of appointments by creating reasonable opportunities for reserved classes and also for other members of the community who do not belong to reserved classes.
It has been observed that the doctrine of equality of opportunity under Article 16(1) is to be reconciled with concessions in favour of backward classes under Article 16 (4) in such a manner the latter while serving the cause of backward classes, shall not unreasonably encroach upon the field of equality.
The concept of upper limit of 50% of reservation has again fell for consideration before Hon‟ble Apex court in the case of M. Nagraj Vrs. Union of India in which the 85th Constitutional amendment was under scrutiny. The Union Government in order to come out from the ratio laid down by Hon‟ble Apex Court in the case of Ajit Singh and Others Vrs. State of Punjab and Othres, reported in (1996) 2 SCC 715, Ajit Singh-II and Others Vrs. State of Punjab and Others, reported in (1999) 7 SCC 209, Ajit Singh-3 Vrs. State of Punjab, reported in (2000) (I) SCC 430 and Virpal Singh Chauhan etc. Vrs. Union of India and Others, reported in 1995 6 SCC 684 wherein the catch up 10 theory was laid down in the matter of promotion given to a reserved category candidate promoted on the basis of reservation earlier than his senior general category candidates in the feeder grade, but the moment the senior general category candidates in the feeder cadre will get promotion to the higher grade he will catch up the seniority of the feeder grade, in order to come out from this , the Constitution has been amended by inserting a clause under Article 16 (4-A) by inserting a word "consequential", meaning thereby the reserved category candidate once granted promotion to the higher grade, they will retain their seniority for all the time to come. This Constitutional amendment was challenged in the case of M. Nagraj and Others (supra) and Hon‟ble Apex Court while dealing with the issue has endorsed the 85 th Amendment but with certain modifications which is as follows:-
"121. The impugned constitutional amendments by which Articles 16(4A) and 16(4B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub- classification between OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney5 , the concept of post-based Roster with in-built concept of replacement as held in R.K. Sabharwal. The Hon‟ble Apex court in the case of M. Nagraj (supra) has further held at paragraph 122 that the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirement without which the structure of equality of opportunity in Article 16 would collapse. 11
In paragraph 123 it has further been held that the main issue concerns "the extent of reservation". In this regard the State concerned will have to show in each case the existence of compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation.
The provision of 85th amendment has been made as enabling provision. "The State is not bound to make reservation for SCs/ STs in the matter of promotion; however, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely."
Hon‟ble Apex court in paragraph 124 has uphold the constitutional validity of the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty-Fifth Amendment) Act, 2001 with the above conditions.
In paragraph 125 it has been held that the individual enactments of appropriate States and that question will be gone into in individual writ 12 petition by the appropriate bench in accordance with law laid in the case of M. Nagrajan.
It is evident from the authoritative pronounced as discussed above that the limit of reservation cannot go beyond 50%, but since to that effect the Constitutional amendment has been brought by way of 81 st amendment Act, 2000 whereby and where under the provision under Article 16 (4-B) has been inserted which also restrain the ceiling limit of 50% reservation on total number of vacancy of that year. For ready reference Article 16(4-B) is quoted below:-
"Art.16(4-B). Unfilled reserved vacancies may be considered as a separate class.- This clause authorizes the State to consider the unfilled reserved vacancies as a separate class which shall not be considered together with the vacancies of the year in which they are being filled up to determine the ceiling of 50% of the total vacancies of that year.
Providing for such reservation beyond 50% would be violative of Article 16(4-B)."
It is settled that the Constitution will prevail over any statutory provision either formulated by the Centre or the State unless the Constitution is amended to that effect and if any provision is inconsistent with the Constitutional provision, the same will be said to be illegal.
Further it is also not in dispute that the State or the Union has been conferred with power by the Hon‟ble Apex Court while endorsing the 81st constitutional amendment Act and the 85th constitutional amendment Act for providing the benefit of accelerated seniority or exceeding the ceiling limit of 50%, but subject to the rider as has been put under paragraph 121 of the judgment rendered in the case of M. Nagraj (supra).
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We after going through the Act, 2008 do not find that the parameter fixed under paragraph 121 of the judgment has been followed or not, since in this regard nothing has been referred in the Act.
Since this issue is not before us as to whether before enactment of the Act, 2008 the State Government has taken effective steps in terms of the parameter fixed by Hon‟ble Apex Court in paragraph 121 of the judgment in the case of M. Nagraj (supra) and even the Act, 2008 is not questioned, hence we are not going into the legality and propriety of the Act, 2008 in the instant case, but the fact remains that before exceeding the limit of reservation from 50%, the State or the Union is supposed to follow the parameter fixed under paragraph 121 of the judgment rendered in the case of M. Nagraj (supra).
6. So far as the grievance of the petitioner that he is entitled to get the benefit of 27% which has been denied by the Tribunal since the reservation has gone beyond limit of 50% taking together the benefit of reservation given to the ST category to the extent of 22.5% and 16.25% for SC category, the quota comes to 67% which is against the Supreme Court guideline and as such the plea of the applicant is being rejected.
Further also on the ground that the benefit of reservation to the SEBC category to the extent of 27% as per the Act, 2008 has came into effect on 7.2.2009 while the advertisement had been published on 18.12.2008, the last date of receipt of application was fixed to 3.2.2009, hence the provision of the Act, 2008 cannot be given effect to the advertisement which has been 14 published prior to enactment of the Act, i.e. prior to 7.2.2009, since there is no stipulation in the Act, 2008 that it would be given its retrospective application.
Further it is settled that once the selection process starts the rule prevalent on the date of the advertisement will be applicable on the settled proposition as has been settled by Hon‟ble Apex Court and in catena of decision of Hon‟ble High Courts that once the game starts the rules of game cannot be changed. In this regard reference may be made to the judgments rendered by Hon‟ble Apex Court in the cases of Sonia Vrs. Oriental Insurance Company ltd. and Others, reported in (2007) 10 SCC 627, K. Manjusree, etc. Vrs. State of Andhra Pradesh and Another, reported in AIR 2008 SC 1470 and Bishnu Biswas and Others Vrs. Union of India and Others, reported in (2014) 5 SCC 774.
The Tribunal, after taking into consideration these aspects of the matter, has declined to grant relief in favour of the applicant on the ground that the candidates belonging to other department have been given benefit to the extent of 27% of reservation to the category of S.E.B.C., but merely on account of the fact that one category has been given benefit of reservation contrary to the rule of land as per the various judgments pronounced by Hon‟ble Apex court as referred herein above, it cannot be applied with respect to others, on the simple principle that from any illegality no right of equality can be derived, in this regard reference may be made to the paragraph 8 of the judgment rendered by Hon‟ble Apex Court in the case of Basawaraj and Another Vrs. Special Land Acquisition Officer, reported in (2013) 14 SCC 81 15 and paragraph 15 of the judgment rendered by Hon‟ble Apex Court in the case of Chaman Lal Vrs. State of Punjab and Others, reported in AIR 2014 SC 3640.
Taking into consideration these aspects of the matter as discussed above, we are of the considered vide that the Tribunal is not in error in passing the order, in the result the writ petition stand dismissed.
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S.N.Prasad, J. Sanju Panda, J. Orissa High Court, Cuttack, Dated the 5th January, 2017/mkp