Orissa High Court
State Of Odisha And Others vs Amar Chhatoi on 29 June, 2017
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) Nos.7504, 3453 and 1593 of 2014
In the matter of application under Articles 226 and 227 of the Constitution
of India.
---------
State of Odisha & Others (in W.P.(C) No.7504 of 2014)
Shradhanjali Jena (in W.P.(C) No.1593 of 2014)
Subhashree Jena (in W.P.(C) No.3453 of 2014)
...... Petitioners.
- Versus-
Amar Chhatoi (in W.P.(C) No.7504 of 2014)
State of Odisha & Others (in W.P.(C) No.1593 & 3453 of
2014)
...... Opposite Parties.
Counsel for Petitioners : Mr. S.P. Mishra, Advocate General of
Odisha and Mr. M. S. Sahoo, Additional
Government Advocate (in W.P.(C) No.7504 of
2014)
M/s. P. K. Pandit, A. Behera, K. Mohanty
and S. Das (in W.P.(C) No.1593 of 2014).
M/s.Budhadev Routray, Sr. Advocate, D.
Routray, R. P. Dalai, K. Mohanty, S. K.
Samal, S. P. Nath, S. Rout and S. D.
Routray. M/s. Umesh Chandra Pattnaik, S.
D. Mishra, S. Patnaik and M. R. Sahoo (in
W.P.(C) No.3453 of 2014)
Counsel for Opp.Parties : M/s. P. K. Sinha, A. Chhatoi & P. K. Parida.
M/s. S. C. Samantaray, U. K. Sahoo, S.
Patnaik, N.K. Deo. M/s. P.K. Mohanty (Sr.
Advocate), D. N. Mohapatra, Smt. J.
Mohanty, P. K. Nayak, S. N. Das and A. Das.
M/s. Biswajit Nayak, B. R. Sahu and S.
Samal (in W.P.(C) No.7504 of 2014)
M/s. P. K. Mohanty, Sr. Advocate, D. N.
Mohapatra, J. Mohanty, P. K. Nayak, K. S.
Dash and A. Das (in W.P.(C) No.3453 of
2014)
2
Mr. S.P. Mishra, Advocate General of Odisha
and Mr. M. S. Sahoo, Additional
Government Advocate (in W.P.(C)
No.1593 of 2014)
PRESENT:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
&
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment : 29.06.2017
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S. N. Prasad, J.In these three writ petitions common prayer has been made and as such the same are being disposed of by this common order.
2. These writ petitions have been preferred by the State of Odisha against the order passed by Odisha Administrative Tribunal, Bhubaneswar dtd.12.12.2013 in O.A. No.1417 of 2012 whereby and where under the notification issued by the State Government on 7.2.2009 reserving 27% of the post and services under the State in case of direct recruitment for Socially and Educationally Backward Classes (in short SEBC) leading to exceeding the extent of reservation to 50% ceiling, has been said to be ultra-virus and accordingly directed the State Authorities to modify the advertisement at Annexure-1 to the extent that reservation of post shall not exceed ceiling limit of 50% in total in respect of S.T., S.C. and S.E.B.C. categories of candidates as has been laid down by the Hon'ble Supreme Court.
3. The fact leading to institution of the original application before the Tribunal is that the applicant being a general category candidate and an aspirant for the post of Assistant Section Officer in the Odisha Secretariat has filed original 3 application praying therein for issuance of direction to the respondents to modify the advertisement No.8 of 2012-13 for recruitment to the post of Asst. Section Officer of the Governor's Secretariat and State Secretariat to the extent that reservation cannot exceed ceiling limit of 50% as laid down by Hon'ble Supreme Court, further prayer has been made for a declaration that any advertisement for public employment exceeding 50% ceiling limit of caste based reservation is illegal and to quash the Orissa Reservation of Posts and Services (Socially and Educationally Backward Classes) Act, 2008 (herein after referred to as 'the Act, 2008), fixing 27% reservation for S.E.B.C. category of posts and services under the State since is contrary to the law laid down by Hon'ble Supreme Court in the case of Indra Sawhney etc. Vrs. Union of India and Others, etc., reported in AIR 1993 Supreme Court 477.
The applicant has demonstrated before the Tribunal showing the vacancy position along with reservation thereof as has been given herein below:-
1. Odisha Governor Secretariat Service Category No. of vacancies UR 01 SEBC 03 (1-W) ST 05 (2-W) SC 02 (1-W) TOTAL 11 (4-W)
2. Odisha Secretariat Service Category No. of vacancies UR 190 (63-W) SEBC 216 (72-W) ST 317 (106-W) SC 077 (26-W) TOTAL 800 (267-W) 4 Out of 11 posts of Asst. Section Officer advertised for Odisha Governor Secretariat Service, only 1 post has been meant for unreserved category candidates, as such more than 90% of posts have been shown reserved.
Similarly out of 800 posts of Asst. Section Officer advertised for Odisha Secretariat service, only 190 posts are meant for unreserved category candidates, as such more than 66% of posts of Asst. Section Officer in the secretariat service are meant for reserved category candidates. As per law laid down by Hon'ble Supreme Court in the case of Indra Sawhney (supra), reservation in public employment cannot exceed 50% limit.
4. The learned counsel representing the appellant has submitted that the Odisha Public Service Commission published another advertisement in 'The Samaj' dtd.13.12.2011 for recruitment of Asst. Agriculture Officer in Group-B services and in the said advertisement the Government followed 50% ceiling limit meticulously and reserved 11.25% vacancies for S.E.B.C. while on the other hand, in the impugned advertisement, benefit of 27% of reservation has been extended in favour of S.E.B.C. category which is unconstitutional and against the settled principle of law as has been laid down by Hon'ble Apex Court.
It has further been contended that the State Government has also issued a circular dtd.15.3.2007 in which it has categorically been stated that the extent of reservation cannot exceed the ceiling limit of 50%.
Learned counsel representing the appellant / opposite party has submitted that the Tribunal, after taking into consideration the ratio laid down by Hon'ble Apex Court in the case of Indra Sawhney (supra) and M. Nagaraj & Ors. 5 Vrs. Union of India & Ors., reported in AIR 2007 SC 71 and other judicial pronouncements, came to conclusion that the Act, 2008 is ultra-virus and accordingly directed to modify the advertisement, as such there is no infirmity in the same, hence it may not be interfered with.
5. The State of Odisha, being aggrieved with the order passed by the Tribunal is before this court by way of the instant writ petitions challenging the order passed by the Tribunal on the ground that actually the post which has been advertised is not exceeding to the 50% ceiling limit but the Tribunal has not appreciated this aspect of the matter.
Learned Advocate General appearing for the State of Odisha has vehemently argued out the case by assailing the order of the Tribunal on the ground that the Tribunal ought not to have passed the order quashing the entire notification dtd.7.2.2009, rather the part of the notification carrying out the 27% reservation to be given to the members of the S.E.B.C. category should have been quashed, but instead of doing so, the entire notification has been quashed which is per se illegal.
He further submits that the Tribunal has not taken into consideration the fact that the State of Odisha has collected the date relating to efficiency, backwardness and inadequacy in representation as provided under Article 16(4) of the Constitution and taking into consideration this aspect of the matter, the Act, 2008 has been notified by virtue of notification dtd.7.2.2009, as such it cannot be said that the Act, 2008 is contrary to the ratio laid down by the Hon'ble Apex Court in the case of Indra Sawhney and M. Nagaraj (supra). 6
He submits that the Tribunal ought to have been taken into consideration the statistical data which has been brought before it by way of affidavit showing the inadequacy in representation of the members of the S.E.B.C. category which led the State Government to increase the extent of reservation to that category of employees leading to exceeding of the ceiling limit of 50% reservation which the State has got the authority to do in view of the constitutional mandate and in view of the authoritative pronouncement of Hon'ble Apex Court rendered in the case of Indra Sawhney and M. Nagaraj (supra)
6. Learned counsel appearing for opposite party - applicant, rebutting the argument advanced on behalf of learned Advocate General, has submitted that the State has not filed any affidavit to the effect that the data has been collected showing inadequacy of representation or backwardness of the members of S.E.B.C. category, rather specific statement has been made in the additional affidavit filed by the State that no data is available so far as S.E.B.C. is concerned regarding their inadequacy in representation, etc. and as such on this ground alone the whole argument advanced on behalf of State by learned Advocate General is not sustainable, in absence of data, it cannot be said that the ratio laid down by the Hon'ble Apex Court in the case of Indra Sawhney and M. Nagaraj (supra) has been followed, taking into consideration this aspect of the matter, the Tribunal has rightly passed the order quashing the Act, 2008 issued by virtue of notification dtd.7.2.2009.
Learned counsel has further submitted that from bare perusal of the vacancy position as has been advertised, it is evident that the posts have been reserved exceeding 50% limit, as such the advertisement is not in consonance with 7 the constitutional mandate, moreover, the State Government has got no authority to come out with the reservation policy reserving the extent of reservation to the particular category of employees by which the limit of reservation may exceed, if the limit of reservation is exceeding, it will hit the constitutional mandate as well as the judgment pronounced by Hon'ble Apex Court which is binding upon the parties in view of provision as contained in Article 141 of the Constitution of India.
7. We have heard the learned counsels for the parties and perused the documents available on record.
The fact which is not in dispute is that the State of Odisha has come out with a notification on 7th February, 2009 by way of Orissa Act 6 of 2009 known as Orissa Reservation of Post and Services (for Socially and Educationally Backward Classes) Act, 2008, an act to provide for reservation of posts and services under the State for S.E.B.C. and for matters connected therewith or incidental therewith.
The Act has got its approval by the Legislature of the State of Odisha in the 59th year of Republic of India and it has been declared that this Act may be called the Orissa Reservation of Posts and Services (for Socially and Educationally Backward Classes) Act, 2008 which will extend to the whole of the State of Odisha wherein the provision has been made U/s.3 that there shall be reserved 27 per centum of the posts and services under the State, in case of direct recruitment, for Socially and Educationally Back Classes subject to the exclusion of creamy layer. 8
We have gone through the notification dtd.7.2.2009 wherein the background for enacting upon the Act, 2008 has been referred wherein it has been stated that the Government of Odisha, the erstwhile Welfare Department in Resolution no.35758-75-94-N, dtd.8.12.1994 had enhanced the percentage of reservation in Civil posts and services for SEBC in the initial recruitment from 11.25% to 27% as there are peculiar features in the social, economic and physical infrastructure of Orissa to make out a special case in terms of the judgment of the Hon'ble Supreme Court in Indra Sawhney's case for providing reservation beyond limit of 50% in posts and services under the State.
The resolution dtd.8th December, 1994 has been challenged before the Orissa Administrative Tribunal in O.A. No.1737(C)/1998 by one Harapriya Dash Vrs. State of Orissa wherein the Tribunal has passed the order declaring that the reservation cannot exceed 50%; and that the said resolution is contrary to the principles of law decided by Hon'ble Apex Court in the case of Indra Sawhney 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 Government preferred writ petition against the said order of Odisha Administrative Tribunal before this court which was dismissed vide order dtd.17th April, 2007 by taking into consideration the judgment of Hon'ble Supreme Court in the case of M. Nagaraj and others Vrs. Union of India (supra).
The judgment rendered by this court has been assailed by the State Government by preferring Special Leave Petition before the Hon'ble Apex Court and the Hon'ble Apex Court has dismissed the Special Leave Petition. 9
It is evident from this background that the Government of Odisha has taken endeavour to enhance the extent of reservation for S.E.B.C. category from 11.25% to 27% and the said decision having been quashed by the Tribunal which attained its finality by the Hon'ble Supreme Court, thereafter the State has presented a bill before the Legislature to enhance the extent of reservation to the members of S.E.B.C. category from 11.25% to 27%, accordingly the Legislature has approved it to be known as the Orissa Reservation of Posts and Services (for Socially and Educationally Backward Classes) Act, 2008.
The State of Odisha has come out with several advertisements to fill up the posts in different departments / establishment, one of the advertisements is the subject matter of the instant writ petition wherein the advertisement has been published for fulfilling the post in the Governor Secretariat as well as State Secretariat Service on the basis of the extent of reservation given to the members of S.E.B.C. category to the extent of 27%. The said advertisement has been challenged by the applicant / opposite party before the Tribunal assailing the Act, 2008 on the ground that there is no compelling situation to enhance the extent of reservation from 50%. The Orissa Reservation of Vacancy Act, 1975 provides reservation of 38.75% in state service providing for ST and SC to the extent of 22.5% and 16.25% respectively coming together to 38.75% and the members of SEBC category has been provided 11.25% reservation coming total of 50% but after enhancement of reservation from 11.25% to 27% for SEBC, total percentage of reservation in Orissa has reached at 65.75% which is contrary to the constitutional mandate as well as the authoritative pronouncement of Hon'ble Apex Court.
10
8. Before judicially scrutinizing the order passed by the Tribunal, it would be proper to make reference of the judgment rendered by Hon'ble Apex Court in the case of M. R. Balaji and Others Vrs. State of Mysore, reported in AIR 1963 SC 649, a Constitution Bench of Hon'ble Apex Court has rejected the argument that in the absence of limitation contained in Article 15(4) no limitation can be prescribed by the Court on the extent of reservation. It is observed that a provision under Article 15(4) being a special provision must be within reasonable limit.
The Hon'ble Apex Court has taken contrary view in the case of State of Kerala and Another Vrs. N. M. Thomas and Others, reported in 1976 2 SCC 310 wherein it has been held that the State, in order to secure adequate representation for the members of S.E.B.C. category, may exceed the extent of reservation to more than 50%.
The issue fell for consideration before the Constitution Bench of the Hon'ble Supreme Court in the case of Indra Sawhney Vrs. Union of India (supra) wherein the Constitution Bench of Hon'ble Apex Court, by its majority view, has approved the view taken in the case of M. R. Balaji and Others Vrs. State of Mysore (supra) and disapproved the view of the Hon'ble Apex Court taken in the case of N. M. Thomas and Others (supra) by laying down the proposition that the extent of reservation shall not exceed to 50% of the appointments of posts, baring certain extra- ordinary situation taking together with reservation in favour of S.C. and S.T. The extra-ordinary situation has been noted down in the said judgment as has been observed in paragraph 94(a) which is being reflected herein below:- 11
"94A. xxxxxxxxxxx It needs no emphasis to say that the principle aim of Articles 14 and 16 is equality and equality of opportunity and that clause (4) of Article 16 is but a means of achieving the very same objective. Clause (4) is a special provision - though not an exception to clause (1). Both the provisions have to be harmonized keeping in mind the fact that both are but the restatements of the principle of equality enshrined in Article
14. The provision under Article 16(4) - conceived in the interest of certain sections of society - should be balanced against the guarantee of equality enshrined in clause (1) of Article 16 which is a guarantee held out to every citizen and to the entire society. It is relevant to point out that Dr. Ambedkar himself contemplated reservation being "confined to a minority of seats" (see his speech in Constituent Assembly, set out in para 28). No other member of the Constituent Assembly suggested otherwise. It is thus, clear that reservation of a majority of seats was never envisaged by the founding fathers. Nor are we satisfied that the present context requires us to depart from that concept.
From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in clause (4) of Article 16 should not exceed 50%.
While 50% shall be the rule, it is necessary not to put out of consideration certain extra-ordinary situations inherent in the great diversity of this country and the people. It might happen that in farflung and remote areas the population inhabiting those areas might, on account of their being out of the main stream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.
In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. 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."
The extent of reservation again fell for consideration before the Hon'ble Apex Court in the case of R.K. Sabharwal and Others Vrs. State of Punjab and Others, reported in (1995) 2 SCC 745 and dealing with the situation of appointment or promotion so that the reservation may not exceed to the extent of 50%, the Hon'ble Apex Court has come out with the principle to follow the reservation post-based and not vacancy-based and the roster system has been directed to be followed in the matter of public employment so that the extent of reservation may not exceed to 50% limit taking into account to the total cadre 12 strength of post, so that the principle laid down by the Constitution to maintain equality which is the intent of Art.16 of the Constitution of India as balance is to be maintained.
The Union Government has come out with an amendment by way of 85th Constitutional Amendment incorporating the principle of accelerated seniority by giving benefit of seniority consequently and accordingly the Art.16(4)(a) has been incorporated in the Constitution.
The virus of the constitutional amendment fell for consideration before the Hon'ble Apex Court in the case of M. Nagaraj Vrs. Union of India (supra) wherein the Hon'ble Apex Court has taken into consideration the law laid down in the case of Indra Sawhney with respect to the proposition laid down therein the rule of 50% ceiling limit for entire BC as a class apart vis-à-vis GC.
It is evident from these judicial pronouncement that the extent of reservation has been directed to be limited to the extent of 50% subject to certain exceptional circumstances and the said exceptional circumstances is inadequate representation of the member of S.E.B.C. category.
We have already referred herein above that the State of Orissa has come out with a resolution on 8th December 1994 enhancing the extent of reservation of the members of S.E.B.C. category from 11.25% to 27% and the said resolution of the State Government has been quashed by the Tribunal having been attained its finality by the Hon'ble Supreme Court and thereafter this notification has been brought before the Legislature to give the shape of the statute. 13
9. The case has been argued out by the learned Advocate General at length by putting reliance upon various affidavits, but in course of argument, in spite of the query made by the court as to whether the exercise to collect data has been taken by the State Government before enacting the Act, 2008 since the decision which has been taken by the State Government by way of resolution dtd.8th December, 1994 has already been struck down taking into consideration the law laid down by Hon'ble Apex Court in the case of Indra Sawhney and M. Nagaraj (supra) but learned Advocate General has not brought anything from the affidavit that the State of Odisha has collected date / statistics to justify its action to enact the statute, i.e. the Act, 2008 since it has been quashed by the court of law on earlier occasion, as such again on the basis of the prevailing situation on the date when the resolution dtd.8th December, 1994 has been brought, the same cannot be said to be justifiable action on the part of the State.
It is not in dispute that the State Government has got no power to enhance the extent of reservation from more than 50% but subject to the exceptional circumstances. We are of the considered opinion at this juncture that the government has taken the same decision way back in the month of December, 1994 by bringing resolution on 8th December, 1994 by enhancing the extent of reservation from 11.25% to 27%, the said decision has been said to be illegal putting reliance upon the judgment rendered in the case of Indra Sawhney and M. Nagaraj (supra) as such any action taken again by the State Government can only be said to be justified one if the exercise is in terms of the judgment passed by Hon'ble Apex Court in the case of Indra Sawhney and M. Nagaraj (supra) would 14 have been taken, but learned Advocate General has very fairly submitted that no such action has been taken by the State.
10. Learned Advocate General, has relied upon an affidavit filed by one Suryamani Lenka working as Under Secretary to Government, Home Department, sworn on 16th August, 2014, putting reliance upon the said affidavit, it has been submitted that an expert committee report was submitted by justice Ram Nandan Prasad Committee in which the process of providing reservation to S.E.B.C. category in the state has been analyzed, basis upon which the resolution No.35758 dtd.8.12.1994 has been issued providing for 27% reservation. He further submits from the said affidavit that the data has been collected for the communities, as such it cannot be said that the decision of the government by bringing Act, 2008 is illegal.
We have gone through the affidavit and from its perusal it is evident that the specific statement has been made at paragraph 13 of the affidavit that state-wise date on SEBCs is not available, for better appreciation the statement made at paragraph 13 is being reflected herein below:-
"13. That caste based on census of 1931, it is indicated that SEBCs constitute 52% of the total population of India. However, state-wise date on SEBC is not available. Mandal Commission accepted the above date while recommending reservation for SEBC category in Government of India posts and services. The Justice Naba Kumar Das, Commission set-up in Odisha on 3.2.1991 also gave recommendation for reservation in respect of SEBC category in the State on 28.6.1993. In erstwhile Welfare Department Resolution No.35758 dtd.8.12.1994, the State Government have enhanced the percentage of reservation from 11.25% to 27% for SEBCs in view of the fact that SEBCs constitute on the basis of all India average of about 52% of the State's total population. Even National Sample Survey's report 1999-2000 shows 36% as National average on OBC (32% after excluding Muslim Minorities). National family Health statistics puts the proportion of non-Muslim OBCs as 29.8% (Reservation in India-Wikpedia the free encyclopaedia)."15
We have gathered from this affidavit that the State's main reliance is upon Justice Ram Nandan Prasad Committee report but the recommendation of that committee cannot be taken into consideration since it has already been taken into consideration by the earlier round of litigation, i.e at the time of judicial scrutiny of resolution No.35758 dtd.8.12.1994 which has been quashed by the court of law and also attained its finality, the affidavit is the repetition of the action of the State Government basis upon which the resolution dtd.8.12.1994 has been issued.
It is further evident from para 13 that no data has been collected so far S.E.B.C. category is concerned. Hence according to our considered view, the State has not taken any endeavour after the resolution dtd.8.12.1994 has been quashed and on the basis of the same data which has already been quashed by the court of law again the Act, 2008 has been legislated, hence the same cannot be said to be justified decision of the State Government.
11. The Tribunal, after taking note of the judicial pronouncements of Hon'ble Apex Court in the case of Indra Sawhney and M. Nagaraj (supra) and other authoritative pronouncement, has came to conclusion that the decision of the State Government is not in accordance with law, accordingly struck down the legislation, i.e. the Act, 2008 and directed the State authority to modify the advertisement.
12. In view of the discussion having been made by us herein above and after going through the material available on record including the order passed by the Tribunal we are of the considered view that the order passed by the Tribunal 16 needs no interference by this court sitting under Art.227 of the constitution of India, since there is no error apparent on the face of record and also there is no perversity, rather the decision is based upon the prevalent rule of land.
Accordingly, all the writ petitions stand dismissed.
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S.N.Prasad, J. Sanju Panda, J. Orissa High Court, Cuttack, Dated the 29th June, 2017/Manas