Orissa High Court
Dusmanta Kumar Behera vs Registrar on 29 April, 2020
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No. 14746 of 2018
An application under Articles 226 and 227 of the Constitution of
India.
----------------------
Dusmanta Kumar Behera ......... Petitioner
-Versus-
Registrar, Orissa High
Court and others ......... Opp. Parties
For Petitioner: - Mr. Shashi Bhusan Jena
Satyajit Behera
Abhijit Mishra, Sebati Soren
For Opp. Parties: - Mr. Mruganka Sekhar Sahoo
Addl. Govt. Advocate
-----------------------
P R E S E N T:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
AND
THE HONOURABLE MR. JUSTICE S.K. SAHOO
....................................................................................................................................
Date of Judgment: 29.04.2020
....................................................................................................................................
S.K. Sahoo, J. The petitioner Dusmanta Kumar Behera has filed this
writ application with a prayer to direct the learned District Judge,
Malkangiri (opposite party no.2) to issue order of appointment in
2
his favour against unreserved category for the post of Junior
Typist.
2. The case of the petitioner, in short, is that the
opposite party no.2 issued an advertisement on 13.09.2017 to
fill up three posts of Junior Typists, one reserved for Scheduled
Caste (men) category; one reserved for SEBC (men) category
and another was kept as unreserved category. In pursuance of
such advertisement, the petitioner applied for that post under
SEBC category. He participated in the selection process and
performed well and the merit list of all the successful candidates
(both general and reserved categories) for those three posts
according to the descending order secured was published in
which the name of the petitioner was reflected at serial no.2.
It is the further case of the petitioner that in the
category wise merit list of successful candidates for the post of
Junior Typists, two names found place in Scheduled Caste
category, seven names in SEBC category and four names against
unreserved category. As per such merit list in SEBC category,
the name of one Bivisan Sahu found place above all the seven
candidates and name of the petitioner found place at number 2.
Bivisan Sahu was overage but he got relaxation by virtue of
SEBC quota and occupied the post which was reserved for SEBC
3
category. It is the case of the petitioner that even though he
belonged to SEBC category but since in the merit list of all the
successful candidates (both general and reserved categories), his
name finds place above all the candidates belonging to
unreserved category, he should have been selected against such
unreserved category.
It is the further case of the petitioner that that the
person who secures higher marks has to be considered against
unreserved category. The petitioner secured more marks and in
the merit list, his name found place at serial no.2 and only
because he belonged to SEBC category, he was not issued with
an order of appointment, on the other hand the opposite party
no.3 Abinash Mohapatra whose name found place at serial no.3
in such merit list and who belonged to unreserved category was
issued with an order of appointment.
According to the petitioner, he belonged to SEBC
category and secured more marks but the order of appointment
was issued in favour of the opposite party no.3 who was directed
to appear before the Registrar of the opposite party no.2 with
the original documents and to give undertaking, which is not
legally correct.
4
It is the further case of the petitioner that similar
advertisement was issued by the learned District Judge,
Kendrapara where three posts of Typists were advertised to be
filled up and there the SEBC candidates those who have secured
more marks have been selected under the unreserved category.
According to the petitioner, the opposite party no.2
has illegally taken a decision to debar the petitioner from
appointment even though he secured more marks only because
of the fact that he belonged to SEBC category and only one post
was reserved for SEBC category which was given to Bivisan
Sahu. The action of the opposite parties in not selecting the
petitioner against unreserved category even though he secured
more marks than the opposite party no.3 is illegal and arbitrary.
3. While controverting the averments made in the writ
petition, the opposite party no.2 in the counter affidavit has
stated that the appointment order was issued in favour of Shri
Bivisan Sahu (SEBC Candidate) for the post of Junior Typist
basing on the basis of sub-rule (5) of Rule 7 of the Odisha
District and Subordinate Courts' Non-Judicial Staff Services
(Method of Recruitment and Conditions of Service) Rules, 2008
(hereafter '2008 Rules'). Similarly in accordance with the
provisions of 2008 Rules, appointment order was issued in
5
favour of the opposite party no.3 from the separate merit list for
unreserved category candidate according to the descending
order of total marks secured. Since only one post was vacant for
SEBC Category, the petitioner was not issued with the
appointment order as he had secured second position in merit
list for SEBC category. It is further stated that the appointment
process made by the District Judge, Kendrapara is not binding as
the appointment of Group 'C' employees including Junior Typists
under Malkangiri Judgeship was made in accordance with the
prescribed Rules and moreover the contentions in regard to
equality suffers from the vice of negative equality.
4. Rejoinder to the counter affidavit was filed on behalf
of the petitioner stating, inter alia, that the opposite party no.2
has not conducted the selection as per law and it is a clear case
of violation of principle decided by the Hon'ble Supreme Court as
well as circular issued by the Welfare Department to all the
departments of the State Government and with the oblique
motive, the opposite party no.2 has debarred the meritorious
candidate like the petitioner and appointed the opposite party
no.3. It is stated that from the merit list for the post of Junior
Typist of Judgeship of Sambalpur District for the same year,
Scheduled Tribe candidate has been adjusted against unreserved
6
category since he secured more marks than other unreserved
category candidates.
5. While issuing notice to the opposite parties on
13.08.2018, this Court as an interim measure directed that the
appointment, if any, to the post of Junior Typist, shall be subject
to result of the writ application.
6. Mr. Shashi Bhusan Jena, learned counsel appearing
for the petitioner emphatically contended that the petitioner
belonged to SEBC category but he had secured more marks than
the opposite party no.3 and was placed above the opposite party
no.3 in the merit list of all the successful candidates which was
meant for both general and reserved categories. Even though
the only post reserved for SEBC (men) category was given to
one Bivisan Sahu who belonged to SEBC category as his name
found place above all the candidates in the merit list but in the
same merit list, the name of the petitioner finds place above all
the candidates belonging to unreserved category and therefore,
he should have been selected against such unreserved category.
According to Mr. Jena, this is a glaring case of arbitrary selection
whereby the petitioner securing more marks than unreserved
category candidates has been deprived of getting an order of
appointment. He relied upon a circular dated 15.03.1999 issued
7
by the Welfare Department to all the departments of the State
Government which relates to clarification regarding the
participation of reserved categories candidates against the
unreserved vacancies.
7. Mr. Mruganka Sekhar Sahoo, learned Addl. Govt.
Advocate on the other hand contended that as per sub-rule (1) of
Rule 7 of 2008 Rules, after receipt of applications for recruitment
examination, career merit lists for general and reserved
categories candidates according to the descending order of total
of percentage of marks in H.S.C. examination and +2
examination were prepared. Thereafter considering the marks
secured in the written test, one merit list for general candidates
and separate merit list for each of the reserved categories were
prepared and candidates in each category were called for
practical test and the candidates selected in such practical test
were called for viva voce test as per sub-rule (3) of Rule 7 of
2008 Rules. Finally, in accordance with the provisions of sub-rule
(4) of Rule 7 of 2008 Rules, on the basis of marks secured in the
written test, practical test and viva voce test, a merit list of all
candidates (both general and reserved categories) was prepared
and thereafter separate merit lists for general and reserved
categories were prepared according to the descending order of
8
total marks and with due regard to sub-rule (5) of Rule 7 of
2008 Rules, according to the descending order of total marks of
each category mentioned in sub-rule (4), not only Bivisan Sahu
but also opposite party no.3 who were in the top of the category
wise merit list of SEBC and Unreserved respectively were
selected for filing of the vacancy. He argued that since the only
post vacant for SEBC Category was filled up by Bivisan Sahu,
there was no scope for the petitioner who secured second
position in merit list for SEBC category for getting selected. The
name of the opposite party no.3 found place in top in the
category wise merit list for unreserved category and accordingly
one post for such category was given to him and hence, there is
no irregularity in the selection of candidates for the post of
Junior Typists. Learned counsel for the State relied upon the
decision rendered by a nine Judge Bench of the Hon'ble Supreme
Court in the case of Indra Sawhney -Vrs.- Union of India
reported in A.I.R. 1993 S.C. 477 so also in the case of
Pradeep Singh Dehal -Vrs.- State of Himachal Pradesh
reported in 2019 (9) Supreme Court Cases 276.
8. We have carefully considered the submissions
advanced by the learned counsel for the parties and perused the
9
documents available on record. We find the following undisputed
factual aspects from the entire scenario of the case:
(i) An advertisement was issued by the opposite
party no.2 on 13.09.2017 to fill up three posts of
Junior Typists i.e. one reserved for Scheduled Caste
(men) category, one reserved for SEBC (men)
category and another was kept as unreserved
category;
(ii) The petitioner applied under SEBC category and
he participated in the selection process and as per
the merit list of successful candidates (both general
and reserved categories) for that post, the name of
the petitioner found place at serial no.2;
(iii) The name of one Bivisan Sahu who applied
under SEBC category found place above all the
candidates in the merit list referred to under (ii) and
also in the category wise merit list of SEBC and he
was selected for the post reserved for SEBC
category;
(iv) The opposite party no.3 Abinash Mohapatra
whose name found place at serial no.3 as per the
aforesaid merit list referred to under (ii) but at serial
10
no.1 in the category wise merit list of unreserved
category was issued with an order of appointment;
(v) The petitioner's place though was above the
opposite party no.3 in the merit list, but he was not
selected as the only post reserved for SEBC (men)
category went in favour of Bivisan Sahu.
9. The question that now crops up for consideration is
whether any illegality has been committed in selecting the
opposite party no.3 Abinash Mohapatra for the post of Junior
Typist whose name found place at serial no.3 as per the merit
list of successful candidates (both general and reserved
categories) for the said post in preference to the petitioner
whose name was at serial no.2 in the said merit list and whether
the name of the petitioner could have been considered against
unreserved category.
At this stage, it would be profitable to refer to the
relevant sub-rules of Rule 7 of 2008 Rules which are extracted
herein below:
7. Manner of Selection of Candidates--(1) After
receipt of applications for recruitment examination,
career merit lists for general and reserved categories
according to the descending order of total of
percentage of marks in H.S.C. examination and +2
11
examination or their equivalent examinations shall be
prepared.
(2) From each category of career merit list,
candidates upto 20 times of actual vacancy in each
category shall be called to appear at the written test.
(3) Considering the marks secured in the written
test, one merit list for general candidates and
separate merit list for each of the reserved categories
shall be prepared and candidates up to ten times of
vacancy in each category shall be called for computer
science test (practical), short hand and type writing
test, as the case may be, and the candidates selected
in such practical selected in test shall be called for
viva voce test.
(4) On the basis of marks secured in the written
test, practical test as provided in sub-rule (3) and the
viva voce test, a merit list of all the candidates (both
general and reserved categories) shall be prepared
and thereafter separate merit lists for general and
reserved categories shall be prepared according to
the descending order of total marks.
(5) Candidates according to the descending order
of total marks of each category mentioned in sub-
rule (4) shall be selected for filling of the vacancy.
Thus on a careful scrutiny of the aforesaid sub-rules
of Rule 7, it appears that at first career merit lists are to be
prepared separately for the general and for each of the reserved
12
categories taking into account total of percentage of marks in
H.S.C. examination and +2 examination or the equivalent
examinations according to the descending order. On the basis of
career merit list, candidates in each category are to be called to
appear at the written test as provided in sub-rule (2). After the
written test is conducted, considering the marks secured in such
written test, one merit list for general candidates and separate
merit lists for each of the reserved categories shall be prepared.
On the basis of marks secured in such written test, candidates in
each category are to be called to face the practical test as
provided in sub-rule (3). The candidates selected in such
practical test shall be called for viva voce test. After viva voce
test, on the basis of marks secured in the written test, practical
test and viva voce test, a merit list of all the candidates (both
general and reserved categories) shall be prepared. Then
separate merit lists for general and for each of the reserved
categories shall be prepared according to the descending order
of total marks and from that separate merit lists, candidates for
each category as per the descending order shall be selected for
filling of the vacancy.
10. It is not in dispute that the petitioner, Bivisan Sahu
and some others applied under SEBC category and they
13
participated in the selection process and as per the merit list of
successful candidates (both general and reserved categories) for
that posts of Junior Typists, the name of Bivisan Sahu found
place at serial no.1 and that of the petitioner found place at
serial no.2. Similarly when category wise merit list of the SEBC
category was prepared as provided in sub-rule (4) of Rule 7,
names of seven persons found in it but the position of Bivisan
Sahu and that of the petitioner remained unchanged. Bivisan
Sahu was overage but getting relaxation by virtue of SEBC
quota, he was selected for the only post which was reserved for
SEBC category. Thus no more post under SEBC category was
available for the petitioner.
In the case of Indra Sawhney (supra), the Hon'ble
Supreme Court has held as follows:
"..... It may well happen that some members
belonging to, say Scheduled Castes get selected
in the open competition field on the basis of
their own merit; they will not be counted against
the quota reserved for Scheduled Castes; they
will be treated as open competition candidates."
Following the decision rendered in the case of Indra
Sawhney (supra), the Hon'ble Supreme Court in the case of
Pradeep Singh Dehal (supra) held as follows:
14
"14.....Every person is a general category
candidate. The benefit of reservation is
conferred to Scheduled Castes, Scheduled Tribes
and OBC category candidates or such other
category as is permissible under law. It is a
consistent view of this Court starting
from Indra Sawhney (supra) that if a reserved
category candidate is in merit, he will occupy a
general category seat...."
Even though Bivisan Sahu was in the top of the merit
list of successful candidates (both general and reserved
categories) for the posts of Junior Typists so also in the category
wise merit list of the SEBC category but he did not get selected
in the open competition field on the basis of his own merit but
getting relaxation as provided under SEBC quota and therefore,
he cannot be treated as open competition candidate. Once he
takes away the only post reserved for the SEBC category, no
more post under SEBC category was available for the petitioner.
The rest of the persons left out in the SEBC category merit list
cannot be considered under unreserved category as for that
category, a separate merit list as per sub-rule (4) of Rule 7 has
been prepared and the only post kept unreserved has to go to
one of the candidates of that list according to the descending
order. Rule 7 is clear and there are no ambiguities in it to require
15
departure from the Rule of literal construction. In Hiralal
Rattanlal -Vrs.- Sales Tax Officer reported in ( 1973 ) 1
Supreme Court Cases 216, the Hon'ble Supreme Court
observed as follows:
"22.....In construing a statutory provision, the
first and foremost rule of construction is the
literary construction. All that we have to see at
the very outset is what does that provision say?
If the provision is unambiguous and if from the
provision, the legislative intent is clear, we need
not call into aid the other rules of construction of
statutes. The other rules of construction are
called into aid only when the legislative intent is
not clear."
We are of the humble view that if the left out persons
in the SEBC category merit list are considered under unreserved
category, the persons whose names find place in the merit list of
unreserved category will be seriously prejudiced and it would
affect them as they compete strictly on the basis of the merit.
Moreover, there would be no purpose in preparing such list
under unreserved category. There is a purpose behind
preparation of separate merit list for each of the reserved
categories so also a separate list for the unreserved. One
candidate in one of the reserved categories cannot encroach
16
upon the other category merely because he was not selected on
the basis of merit list prepared for his own category.
In the case of Satyabrata Sahoo and Ors. -Vrs.-
State of Orissa reported in (2012) 8 Supreme Court Cases
203, when the appellants, who have appeared in the entrance
examination for Postgraduate (Medical) Selection, 2012, Odisha
challenged the validity of Clause 11.2 of the prospectus for
selection of candidates for postgraduate (medical) courses in the
government medical colleges of Odisha for the academic year
2012, as violative of Article 14 of the Constitution of India, the
Hon'ble Court held that there can be no encroachment from one
category to another and candidates of in-service category cannot
encroach upon the open category, so also vice versa. While
allowing the appeal and setting aside the judgment of the
Division Bench as well as learned Single Judge of this Court, the
Hon'ble Court directed the State of Odisha, the Medical Council
of India and the respondents 1 to 4 therein to take urgent steps
to rearrange the merit list and to fill up the seats of the direct
category, excluding in-service candidates who got admission in
the open category on the strength of weightage.
17
The notification of the Welfare Department dated
15.03.1999 annexed to the rejoinder affidavit filed by the
petitioner dealt with the question, "whether the unreserved
vacancies are reserved for a specified class of candidates" and
the answer was given that, "the unreserved vacancies are not
reserved for any general, S.C., S.T., O.B.C. or other specified
class of candidates. This has to be filled up strictly on the basis
of the 'select list' prepared by the Board of selection or the
Departmental Promotion Committee, following the relevant
recruitment rules".
Since the select list prepared in the present case is
category wise merit list of successful candidates following Rule 7
of 2008 Rules and the selection of the opposite party no.3 for the
post of Junior Typist from the unreserved category is on the
basis of his top position in such category, we find no infirmity or
irregularity in the same. The prayer of the petitioner to issue
order of appointment in his favour against unreserved category
is totally misconceived.
The grounds taken by the petitioner that in two of
the districts i.e. Kendrapara and Sambalpur, in the similar posts
of Junior Typists, reserved category candidates securing more
18
marks have been adjusted against unreserved category are not
sufficient to grant relief to the petitioner as it suffers from the
vice of negative equality as averred in the counter affidavit.
Article 14 of the Constitution does not envisage a negative
equality. It does not countenance repetition of a wrong action to
bring both wrongs at par. Since the happenings of those two
districts in the matter of selection of Junior Typists are not
challenged before us now, we refrain to make any observation in
that respect.
11. In view of the foregoing discussions, we find no merit
in the writ petition which is accordingly dismissed. The interim
order dated 13.08.2018 stands vacated. No costs.
........................
S.K. Sahoo, J.
S. Panda, J. I agree.
........................
S. Panda, J.
Orissa High Court, Cuttack The 29th April 2020/Pravakar/Sisir