Orissa High Court
Ranjit Kumar Sarangi vs State Of Odisha & Others .... Opposite ... on 6 February, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC (OAC ) NO.188 of 2016
In the matter of an application under Section 19
of the Administrative Tribunals' Act, 1985.
..................
Ranjit Kumar Sarangi .... Petitioner
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner :M/s. B. Dash, Advocate
For Opp. Parties :M/s. M.K. Balabantaray, A.G.A.
M/s. A.R. Mohanty, Adv.
(for Opp. Party No.4)
M/s. A.C. Panda, Adv.
(for Opp. Party No.5)
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 06.02.2024 and Date of Judgment: 06.02.2024
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Biraja Prasanna Satapathy, J.
On the oral prayer made by Mr. B. Dash, learned counsel for the Petitioner, he is permitted to implead Commissioner, Excise, Odisha as Opp. Party No. 8 in Court today.
The present Writ Petition has been filed challenging the selection of Opp. Party Nos.4 to 6 and with a further prayer to select the Petitioner for the post of Excise Constable.
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2. It is the case of the Petitioner that Odisha Subordinate Staff Selection Commission (in short, "the Commission") vide Notification dated 15.09.2014 invited applications to fill up 256 posts of Excise Constable. Subsequently, after making certain corrections, the Commission again issued another notification on dated 25.10.2014 under Annexure-1 to fill up 256 posts of Excise Constable. Pursuant to the aforesaid Notification under Annexure-1, the Petitioner duly participated in the selection process and though was found eligible for selection, but because of the selection of Opp. Party No.4 as against UR vacancy, even though he made his application as a reserved category candidate, the Petitioner was deprived from the purview of selection. It is also case of the Petitioner that even though Petitioner and Respondent Nos.5 & 6 secured similar mark, but the Petitioner taking into account his seniority in age, should have been preferred as against Respondent No.5 and 6. Making all such allegation, the present Writ Petition was filed challenging the selection of Opp. Party Nos.4 to 6 with a prayer to direct the Opp. Parties to select the applicant as Excise Constable.
3. Mr. B. Dash, learned counsel appearing for the Petitioner contended that pursuant to the advertisement issued by the Commission on 25.10.2014 under Annexure-1, Page 2 of 13 // 3 // the Petitioner made his application as an UR candidate and the Opp. Party No.4 made his application as a reserved category candidate having belong to S.T category. 3.1. It is contended that in the advertisement issued under Annexure-1, the prescribed height for UR category was 168 cm. and for S.T candidate, it was 163 cm. Opp. Party No.4 since was not having the prescribed height of 168 cm., he made his application as a reserved category candidate and after availing the benefit of relaxation in his height, he was allowed to take part in the physical standard test. It is contended that since Opp. Party No.4 availed the benefit of relaxation in height as a reserved category candidate and accordingly participated in the selection process, he should not have been selected as against vacancies meant for UR category. Because of such selection and appointment of Opp. Party No.4 as against UR vacancy, the Petitioner was deprived from the purview of selection.
3.2. It is also contended that even though the Petitioner and the Opp. Party Nos.5 & 6 secured similar percentage of mark, but the Commission recommended the name of Opp. Party Nos.5 & 6 ignoring the claim of the Petitioner. It is contended that as provided under Rule 14 (IV ) of the Orissa Subordinate Staff Selection Commission (District Cadre) Page 3 of 13 // 4 // Rules, 2012, if two or more candidates obtain equal marks in the aggregate, the order of merit shall be determined in accordance with the marks secured by such candidate in their respective academic career and if the mark thus secured are also equal, then merit shall be decided according to their seniority in age.
3.3. Placing reliance on the said Rules, learned counsel for the Petitioner contended that the Petitioner and Opp. Party Nos.5 & 6 since secured similar mark, taking into account the age of the Petitioner, he should have been preferred as against Opp. Party Nos.5 & 6. It is accordingly contended that since the Opp. Party-Commission did not follow the relevant recruitment Rules and the decision Governing the field with regard to extension of benefit of reserved category candidate as against UR vacancies after availing any relaxation, the selection of Opp. Party Nos.4, 5 & 6 is not sustainable in the eye of law and requires interference of this Court.
4. Mr. M.K. Balabantaray, learned A.G.A on the other hand made his submission basing on the stand taken in the counter affidavit, so filed by Opp. Party Nos.2 & 3. 4.1. It is contended that the Petitioner having belong to UR category and taking into account the marks secured by him, Page 4 of 13 // 5 // he was included in the select list in the UR category with 191 rank in the common merit list, 181 rank in the State rank and 9th position in the district rank. It is contended that since the private Opp. Party No.4 secured 49 marks which is higher than the present petitioner, he was selected and appointed as against UR vacancy and no illegality was committed by the Commission in recommending his name and consequential appointment of the said Opp. Party No.4 as against UR vacancy.
4.2. With regard to the allegation made against Opp. Party Nos.5 & 6, it is contended that even though the Petitioner and Opp. Party Nos.5 & 6 scored similar mark, but taking into account their academic career, i.e. the marks secured in the H.S.C examination, they were placed at Sl. Nos.7 & 8 in the district merit list and the Petitioner at Sl. No.9. Accordingly, it is contended that taking into account the mark secured in the H.S.C examination and as provided under the 2012 Rules, Opp. Party Nos.5 & 6 were placed above the Petitioner in the merit list. It is accordingly contended that no illegality has been committed by the Commission in recommending the names of Opp. Party Nos.5 & 6 for their appointment.
Page 5 of 13
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5. To the aforesaid submission of learned A.G.A, Mr. B. Dash, learned counsel appearing for the Petitioner contended that the Home Department issued a clarification on 15.12.006 under Annexure-7 holding therein that in the process of recruitment of Constable and Sepoys, weightage given to S.C & S.T candidates should not be taken up while filling up the vacancies in UR category and that the relaxation of age etc. admissible to the candidates belong to S.C & S.T will continue to be available to them even when they were considered for General (UR) category of post. However, the aforesaid clarification issued by the Home Deptt on 15.12.2006 under Annexure-7, was challenged before the Tribunal in O.A. No.1815(C ) of 2008. The Tribunal vide a common order passed on 13.09.2007 was pleased to quash the clarification so issued on 15.12.2006 under Annexure-7. The said order was also confirmed by this Court vide its order dated 15.12.2011 in W.P.(C ) No.20249 of 2009 and batch. It is also contended that the order passed by this Court on 15.12.2011 was also confirmed by the Hon'ble Apex Court in Special Leave to Appeal No.1979-1981 of 2013 vide order dated 14.01.2016. It is accordingly contended that in view of the quashing of the clarification so issued by the Home Deptt. On 15.12.2006 under Annexure-7, the stand Page 6 of 13 // 7 // taken by the Opp. Parties with regard to extension of the benefit in favour of Opp. Party No.4 as against UR vacancy after allowing him the benefit of relaxation of height is not sustainable.
5.1. Mr. Dash, learned counsel also relied on a decision of the Hon'ble Apex Court in the case of Niravkumar Dilipbhai Makwana Vs Gujarat Public Service Commission and Others, reported in (2019) 7 SCC 383. The Hon'ble Apex Court in paragraphs 21 to 24, 27 & 30 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 Page 7 of 13 // 8 // 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 considered only against his/her reserved post. Such 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 subsection (1)."
xxx 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 Page 8 of 13 // 9 // 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 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."
It is accordingly contended that since the Opp. Party No.4 availed the benefit of relaxation of height as a reserve category candidate, he should not have been considered as against UR vacancy and his selection as such is not sustainable in the eye of law.
6. Mr. Ashish Ranjan Mohanty, learned counsel appearing for Opp. Party No.4 on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Page 9 of 13 // 10 // Opp. Party No.4. It is contended that even though the Opp. Party No.4 availed the benefit of relaxation of height having belong to Scheduled Tribe category, but since the Opp. Party No.4 secured more mark than the Petitioner, he has been rightly selected as against UR category. It is also contended that since the Petitioner after being selected, is continuing since 2015, he will be seriously prejudiced, if his selection is set aside in any manner for no fault of his own.
7. Learned counsel appearing for Opp. Party No.5 also made his submission basing on the stand taken in the counter affidavit.
It is contended that even though the Petitioner and Opp. Party No.5 secured the same mark, but as provided under the 2012 Rules, Opp. Party No.5 having secured more mark in the HSC examination, he was rightly selected and no illegality has been committed.
8. I have heard Mr. B. Dash, learned counsel appearing for the Petitioner, Mr. M.K. Balabantaray, learned Additional Govt. Advocate appearing for the State-Opp. Parties, Mr. A.R. Mohanty, learned counsel for Opp. Party No.4 and Mr. Ramesh Chandra Panda, learned counsel appearing for Opp. Party No.5.
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// 11 // On the consent of the learned counsel appearing for the Parties with due exchange of the pleadings, the matter was heard at the stage of admission and disposed of by the present order.
9. Having heard learned counsel for the parties and after going through the materials available on record, it is found that pursuant to the advertisement issued under Annexure- 1, the Petitioner as well as Opp. Party No.4 to 6 made their applications for the Post of Excise Constable. As provided in the advertisement under Annexure-1, under Para 7-A the prescribed height for UR category was 168 cm and the prescribed height for S.C & S.T candidate (men) was 163 cm. Since Opp. Party No.4 was not having the required height, he availed the benefit of relaxation of height having belonged to S.T candidate and accordingly qualified in the physical test and subsequently participated in the selection process. Since Opp. Party No.4 was allowed the benefit of relaxation of height and accordingly he participated in the selection process, in view of the decision of the Hon'ble Apex Court reported in the case of Niravkumar Dilipbhai Makwana, as cited (supra), Opp. Party No.4 should not have been selected as against UR vacancies. The plea taken by the Petitioner regarding availability of relaxation in height by Opp. Party Page 11 of 13 // 12 // No.4 has not been disputed either by the State-Opp. Parties or by the Opp. Party No.4 while filing their respective counters.
9.1. In view of such non-denial on the part of Opp. Party No.4 as well as the State-Opp. Parties, it is an admitted fact that Opp. Party No.4 participated in the selection process by availing the benefit of relaxation of height. Therefore, placing reliance on the Hon'ble Apex Court in the case of Niravkumar Dilipbhai Makwana, as cited (supra), he should not have been selected as against UR vacancy. Therefore, this Court is inclined to interfere with the selection of Opp. Party No.4 only and finds no illegality or irregularity with the selection of Opp. Party Nos.5 & 6. While interfering with the matter, this Court quash the selection of Opp. Party No.4 and direct the Opp. Party Nos.3 and 8 to select and provide appointment to the Petitioner as Excise Constable taking into account his position in the district wise merit list. Such action shall be initiated and completed within a period of two months from the date of receipt of this order.
9.2. However, while parting with the case and taking into account the fact that Opp. Party No.4 has completed Page 12 of 13 // 13 // more than 7 years of service after being appointed by the Opp. Parties, Opp. Party No. 8 may consider his continuance as against any available vacancy, if it is so permissible in the eye of law.
The Writ Petition is accordingly disposed of with the aforesaid observation and direction.
(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 6th February, 2024/Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Feb-2024 19:55:54 Page 13 of 13