Orissa High Court
Dr. Archana Kanungo vs State Of Orissa on 15 May, 2024
ORISSA HIGH COURT : CUTTACK
W.A. No.587 of 2024
In the matter of an Appeal under Article 4 of
the Orissa High Court Order, 1948
read with
Clause 10 of the Letters Patent constituting
the High Court of Judicature at Patna
and
Rule 6 of Chapter-III and Rule 2 of Chapter-VIII
of the Rules of the High Court of Orissa, 1948
***
1. Dr. Archana Kanungo
Aged about 43 years
Daughter of Late Bhubananda Kanungo
Retired Government Officer
Chakeisiani, Mancheswar
Bhubaneswar. ... Appellant
(Petitioner in
the Writ Petition).
-VERSUS-
1. State of Orissa
represented through
the Principal Secretary to Government
Higher Education Department, Odisha
At: Lok Seva Bhawan, Bhubaneswar
District: Khurda.
2. Chief Secretary
Government of Odisha
Lok Seva Bhawan, Bhubaneswar-1.
3. Secretary to Government
General Administration and
Public Grievance Department, Odisha
At: Lok Seva Bhawan, Bhubaneswar
District: Khurda.
W.A. No.587 of 2024 Page 1 of 92
4. Secretary, Sports and Youth Affairs
Government of Odisha
At: Kalinga Stadium Building
Bhubaneswar, District: Khurda.
5. Chairman
Odisha Public Service Commission
Cuttack. ... Respondents
(Opposite parties in
the Writ Petition).
Counsel appeared for the parties in the writ appeal:
For the Appellant : Dr. Archana Kanungo (In Person)
For the Respondents : Mr. Manoj Kumar Khuntia,
Additional Government Advocate
P R E S E N T:
HONOURABLE CHIEF JUSTICE
MR. CHAKRADHARI SHARAN SINGH
AND
HONOURABLE
MR. JUSTICE MURAHARI SRI RAMAN
Dates of Hearing : 15.04.2024 and 16.04.2024
::
Date of Judgment : 15.05.2024
JUDGMENT
MURAHARI SRI RAMAN, J.--
THE CHALLENGE:
This intra-Court appeal invoking provisions of Article 4 of the Orissa High Court Order, 1948 read with Clause 10 of the Letters Patent constituting the High Court of Judicature at Patna and Rule 6 of Chapter-III and Rule 2 of Chapter-VIII of the High Court of Orissa, 1948, is W.A. No.587 of 2024 Page 2 of 92 directed against the Judgment dated 13.03.2024 rendered by the learned Single Judge in W.P.(C) No.7280 of 2023, whereby the appellant-writ petitioner craves for following relief(s):
―It is, therefore, prayed that this Hon'ble Court may graciously be pleased to issue notice to the opposite parties calling upon them to fail to show cause as to why the contempt order dated 13.12.2022 issued by the Honourable High Court shall not be complied being passed in gross disregard to the earlier order passed by this Hon'ble Court passed in W.P.(C) No.17348 of 2022/272 of 2022 dated 27.11.2022.
A further direction to be issued to the opposite parties to extend the benefit of direct recruitment under sportsperson Resolution No.GAD-SC-RES-0012-2022 taking into reservation principles under State Civil Services to the petitioner and Sports and Youth Services Department as per ―outcome budget 2019-2022‖ Resolution is Annexured, as well as judgment of this Hon'ble Court passed to State of Orissa Vrs. Dr. Archana Kanungo in W.P.(C) No.17348 of 2022/272 of 2022 dated 27.12.2022 and provide all the benefits to the petitioners as due with effect from the date of appointment to other selected candidates for the post of Asst. Professor Sociology or Professor Sociology in different State Universities and benefits respectively within a date to be fixed by this Hon'ble Court. Or else Petitioner/Appellant shall suffer irreparable loss and injury which cannot be compensated by any means. So without proper finding and without proper finding and without proper adjudication the Writ petition 7280 of 2023 disposed of by the Honourable Single Judge of Odisha High Court dated 13.03.2024 is impropriety, unjust and unconstitutional as such the order dated 13.03.2024 is liable to be set-aside.
Therefore, it is most humbly prayed that this Honourable High Court may graciously be pleased to admit the appeal, call for record, issue notice to opposite parties the order of Honourable High Court dated 13.03.2024 be set-aside.
W.A. No.587 of 2024 Page 3 of 92It is, therefore prayed that this Honourable Court may graciously be pleased to pass an order that the ―Petitioner get direct appointment for the post of Assistant Professor Sociology, Universities Advertisement-08, 21 post as meritorious sportsperson under one 1 post reserved from one year as stay for petitioner/Appellant which is reserved for sportsperson reservation principle by GA and PG and Sports and Youth Services, Government of Odisha Resolution.
And/or may pass any other order/orders, direction/directions as this Hon'ble Court may deem fit/proper.
And for this act of kindness, the Petitioner shall as in duty bound ever pray.‖ FACTS OF THE CASE:
2. As adumbrated in the writ appeal, Dr. Archana Kanungo, appellant-writ petitioner, claims to be National Level Sportsperson in "Taekwondo" having identity card issued by the Director of Sports and Youth Affairs (State of Odisha), assailed non-selection for the post of Assistant Professor in Sociology discipline in response to the Advertisement No.8 of 2020-21, dated 08.02.2021 in the category of "Sportsperson" before this Court in W.P.(C) No.17348 of 2022, which came to be disposed of on 16.09.2022 with the following Order:
―1. This matter is taken up through hybrid mode.
2. Heard.
3. In this Writ Petition, the petitioner assails the non-
availability of benefit of reservation of posts under sports quota for the posts of Assistant Professors in Sociology and other disciplines in different State Public Universities of Government of Odisha for W.A. No.587 of 2024 Page 4 of 92 which process of recruitment has been initiated by the Opposite Party No.3/Odisha Public Service Commission (OPSC) and seeks a direction from this Court to the Opposite Parties to extend the facility of reservation of posts under the sports quota to deserving sportsmen/women candidates like her in the Sociology and other disciplines.
4. This Court appreciates the concern raised by the petitioner but in the absence of any provision in the Advertisement or any policy framework this Court cannot direct the Opposite party to create such posts. If the petitioner so desires, she can approach the concern Department for redressal of her grievance.
5. Accordingly, this Writ Petition is disposed of .‖ 2.1. In pursuance thereof, the appellant filed representation.
However, seeking review of said Order dated 16.09.2022 in W.P.(C) No.17348 of 2022, a petition being RVWPET No.272 of 2022, was filed, which got disposed of with the following observation vide Order dated 27.10.2022:
―***
4. It is apparent that the Petitioner has filed this RVWPET to review the aforesaid order with a direction to the Odisha Public Service Commission to provide reservation of posts for Sports Person in the bona fide interest of justice though the Opposite Party No.3 is only a recruiting agency and is not empowered to frame any policy for creation of reservation for Sports Person. The said order passed by this Court earlier cannot be found fault. However, paragraph 4 of the said order dated 16.09.2022 W.A. No.587 of 2024 Page 5 of 92 passed in W.P.(C) No.17348 of 2022 is suitably modified by adding a sentence at the end ―On such event, the representation of the Petitioner shall be disposed of by the authority taking into account the provisions under the Orissa Civil Services (Reservation of Vacancies for Women in Public Services) Rules, 1994 within a period of three weeks from the date of production/submission of a copy of this order along with a copy of the RVWPET‖. Rest part of the aforesaid order shall remain unaltered.
5. The RVWPET is, accordingly, disposed of.‖ 2.2. Alleging violation of aforesaid Order dated 16.09.2022 in W.P.(C) No.17348 of 2022, as stood modified by virtue of Order dated 27.10.2022 passed in RVWPET No.272 of 2022, the appellant came up before this Court by way of contempt petition, being CONTC No.7220 of 2022, which stands disposed of with the following Order on 13.12.2022:
― This matter is taken up through hybrid mode.
2. Heard the petitioner Dr. Archana Kanungo appearing in person and Mr. A.K. Mishra, learned Addl. Government Advocate appearing for the State opposite parties.
3. It is contended that the order dated 27.10.2022 passed by this Court in RVWPET No. 272 of 2022 has not yet been complied with. Let the opposite parties comply with the same, if not already complied with in the meantime, within a period of two weeks from the date of communication/ production of copy of this order.W.A. No.587 of 2024 Page 6 of 92
4. The contempt proceeding is accordingly disposed of.‖ 2.3. In compliance of direction issued by this Court vide Order dated 16.09.2022 in W.P.(C) No.17348 of 2022, as stood modified by virtue of Order dated 27.10.2022 passed in RVWPET No.272 of 2022, the claim of the appellant was rejected vide Order dated 20.12.2022 passed by the Government of Odisha in Department of Higher Education. For ready reference, said Order is reproduced hereunder:
―Government of Odisha Department of Higher Education *** Order No.HE-UE-PG-0012-2022--52489/HE., Dated 20.12.2022.
(1) The petitioner, Dr. Archana Kanungo, an applicant for the post of Assistant Professor in Sociology pursuant to Advt. No.08 of 2020-2021, had filed the writ petition bearing W.P.(C) No.17348/2022 assailing the non-availability of benefit of reservation of posts under sports quota for the posts of Assistant Professors in Sociology and other disciplines in different State Public Universities of Government of Odisha for which process of recruitment has been initiated by the Opposite Party No.3/Odisha Public Service Commission (OPSC) and seeks a direction from this Court to the Opposite Parties to extend the facility of reservation of posts under the sports quota to deserving sportsmen/ W.A. No.587 of 2024 Page 7 of 92 women candidates like her in Sociology and other disciplines.
(2) The Hon'ble High Court was pleased to dispose of the said writ petition by their Order No.02 dated 16.09.2022 with the following observation:
‗This Court appreciates the concern raised by the petitioner but in the absence of any provision in the Advertisement or any policy framework this Court cannot direct the Opposite Party to create such posts. If the petitioner so desires, she can approach the concern Department for redressal of her grievance.' (3) Further, the petitioner has filed RVWPET No.272 of 2022 to review the order dated 16.09.2022 passed in W.P.(C) No.17348/2022.
(4) The Hon'ble High Court was pleased to dispose of the said Review Petition by their Order No.01 dated 27.10.2022 with the following observation.
―On such event, the representation of the petitioner shall be disposed of by the authority taking into account the provisions under the Orissa Civil Services (Reservation of Vacancies for Women in Public Services) Rules, 1994 within a period of three weeks from the date of production/submission of a copy of this order.‖ The representation/grievance petition of the petitioner has been carefully examined keeping in view the requisition sent to OPSC and report received from OPSC on the grievance petition. The following points came to light.
W.A. No.587 of 2024 Page 8 of 92(i) The post of Assistant Professor in a State Public University is a Group-‗A' equivalent post and no vacancy has been earmarked for the candidates under the ―Sports Person‖ category.
(ii) The provision of reservation as laid down under the Orissa Civil Services (Reservation of Vacancies for Women in Public Services) Rules, 1994 has been followed in the selection process.
(iii) The Petitioner could not secure cut off marks in the interview and as a result, the petitioner could not be selected in the recruitment process made by the OPSC.
(5) In view of the above, the claim of the petitioner in the present writ petition merits no consideration and is, therefore, rejected. All concerned be intimated accordingly.
This complies the order of the Hon'ble Orissa High Court dated 16.09.2022 in W.P.(C) No.17348 of 2022 and dated 27.10.2022 in RVWPET No.272 of 2022.
Sd/-
Principal Secretary to Government.‖ 2.4. With a prayer to quash aforesaid Order dated 20.12.2022 of the Government of Odisha, the appellant- writ petitioner approached this Court by way of filing petition on 10.03.2023. The following are the prayers made in said writ application, being registered as W.P.(C) No.7280 of 2023:
W.A. No.587 of 2024 Page 9 of 92―It is, therefore, prayed that the Hon'ble Court be graciously pleased to allow the following prayer(s):
(i) The Hon'ble Court be pleased to admit & allow the writ petition,
(ii) The Hon'ble Court be pleased to quash the impugned Order dated 20.12.2022 under Annexure-
12,
(iii) The Hon'ble Court be pleased to direct the opposite parties for selecting/appointing the petitioner in the post of Assistant Professor of Sociology against the quota meant for Woman so also sportsperson in view of the G.A. & P.G. Department Resolutions under Annexure-13 & 14 in the matter of recruitment pursuant to Advertisement No.08/2020-21, dated 08.02.2021 keeping in view of her academic so also sports background with all consequential service benefits within a time bound period by further declaring the actions of the opposite party Nos.1 & 3 as illegal, unconstitutional and erroneous one for the interest of justice.
(iv) The Hon'ble Court be pleased to pass any other Writ(s), Direction(s), Order(s) as this Hon'ble Court may be deemed fit and proper.
And for this act of kindness, the petitioner shall as in duty bound ever pray.‖ 2.5. Vide Order dated 29.01.2024 the learned Single Judge while taking up the matter in W.P.(C) No.7280 of 2023, observed thus:
― This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.W.A. No.587 of 2024 Page 10 of 92
2. Heard learned counsel appearing for the Opposite Parties.
3. Petitioner contended that though in the advertisement there was no indication with regard to fixation of any cut-off mark to be secured by a candidates in the interview, but by taking a plea that Petitioner did not secure the cut-off mark so fixed in the interview, her name was not recommended by the Odisha Public Service Commission while recommending the names of eligible candidate as against the post of Asst.
Professor in the discipline of Sociology.
4. It is also contended that though as against UR vacancies, five posts were reserved for UR (Women), but the Commission did not recommend five UR (Women) candidates, while recommending the names of eligible candidates.
4.1. Learned Addl. Government Advocate for the State as well as learned counsel for the Commission are directed to file an affidavit as to whether any cut-off mark was fixed prior to conducting the interview and whether five UR (Women) candidates were recommended in terms of the advertisement issued under Annexure-1. Such an affidavit be filed before the next date positively.
5. As requested, list this matter on 9th February, 2024.‖ 2.6. Consequent upon said direction, affidavit being filed, the learned Single Judge has passed the following Order on 09.02.2024:
― This matter is taken up through Hybrid Mode.W.A. No.587 of 2024 Page 11 of 92
2. Addl. Affidavit filed by Mr. Mohanty, learned Sr. Counsel pursuant to the order passed by this Court on 29.01.2024 be kept in record.
3. Copy of the affidavit is also served on the Petitioner in Court today.
4. As requested by Ms. Kanungo, list this matter on 15th February, 2024.‖ 2.7. On the adjourned date, i.e., 15.02.2024, the following Order has been passed:
―1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
2. It is contended that reply has been filed by the Petitioner to the additional affidavit filed on behalf of Opp. Party No. 3 on 13th February, 2024. Copy of the same is also served on learned Sr. Counsel appearing for Opp. Party No. 3.
3. Office is directed to tag the same to the case record and list this matter on 21st February, 2024.‖ 2.8. On 21.01.2024, final hearing being undertaken, the learned Single Judge of this Court vide Judgment dated 13.03.2024 disposed of W.P.(C) No.7280 of 2023, finding no illegality or irregularity in the Order dated 20.12.2022 passed by the Government of Odisha and, accordingly the writ petition came to be dismissed.
2.9. Said Judgment dated 13.03.2024 is the subject-matter of challenge before this Court in the instant writ appeal.
HEARING OF THE WRIT APPEAL:
W.A. No.587 of 2024 Page 12 of 923. This matter was on board on 15.04.2024 under the heading "Fresh Admission". This Court heard Dr. Archana Kanungo, who appeared in-person and sought to argue her own case before this Court. As short point is involved in the present matter as to whether impropriety can be imputed to the Judgment dated 13.03.2024 of the learned Single Judge upholding Order dated 20.12.2022 passed by the Government of Odisha in Department of Higher Education rejecting the claim of the appellant-writ petitioner seeking to appoint her in the post of Assistant Professor in Sociology in view of her being shortlisted after participation in response to Advertisement No.08 of 2020-21, dated 08.02.2021 in consideration of reservation under the category of "Woman" candidate by taking into consideration further reservation under "Sportsperson" sub-category with reference to Resolution No. GAD-SC-RES-0007-2014--
33044/Gen, dated 11th December, 2014 of the Government of Odisha in General Administration Department read with Principles to be followed on vertical and horizontal reservation during filling up of various State Civil Services posts as clarified vide Letter No. GAD-SC-RES-0012-2020-- 1955/Gen, dated 19th January, 2021, and this Court being apprised of the fact that the pleadings have already been completed before the writ Court and no further material is required to be placed for consideration of issue raised herein, on W.A. No.587 of 2024 Page 13 of 92 concession of both the sides, the hearing of writ appeal has been taken up. After conclusion of hearing on 15.04.2024, on request of the appellant, the matter is directed to be placed on 16.04.2024 for submission of "written note of arguments". Accordingly, written note of arguments is furnished to the Court on 16.04.2024 and the Court heard further arguments advanced by the appellant. After conclusion of arguments, reserved the matter for pronouncement of Judgment on a later date.
ARGUMENTS ADVANCED BEFORE THIS COURT:
4. Dr. Archana Kanungo, the appellant-writ petitioner, appearing in-person and seeking to argue her cause, made valiant attempt to persuade the case on merit by demonstrating that the approach of the learned Single Judge in rendering the Judgment dated 13.03.2024 in W.P.(C) No.7280 of 2023, by sustaining the view of the Government of Odisha in Higher Education Department vide Order dated 20.12.2022, is not only erroneous appreciation of facts and but also illegal.
4.1. On self-evaluation she has claimed in the rejoinder affidavit filed in the writ proceeding as follows:
―The petitioner has challenged the non-selection of her candidature being a National Sportsperson recognised by Government of Odisha bearing PPSAN No.00078767 having scored 102 API Score as per the UGC Guideline followed by Table 3A Annexure herewith Advertisement W.A. No.587 of 2024 Page 14 of 92 No.08 of 2020-21 OPSC, Assistant Professor, Sociology for State Universities.‖ 4.2. She has, hence, claimed by way of the written note of arguments dated 16.04.2024 before this Court that being a meritorious outstanding Sportsperson and having valid sports identity card to claim 1% reservation under the "Sports quota" and having highest Academic Performance Indicator Score (API), she was shortlisted and selected for the post of Assistant Professor in Development Studies and Sociology twice under exceptional category. She participated in the interview twice in competitive examinations, but to no avail in securing the desired job, which post fell in Group-A category.
4.3. It is pointed out by Dr. Archana Kanungo through written note of arguments that the impugned Order of the Government of Odisha before the writ Court involved three grounds for rejection of her claim, viz.:
i. there is no provision of reservation for sportsperson for Group-A post under "Sports" category;
ii. the Odisha Civil Services (Reservation of Vacancies for Women in Public Services) Rules, 1994 has been followed in the recruitment process;W.A. No.587 of 2024 Page 15 of 92
iii. the petitioner has no locus standi in assailing process of selection having low cut-off mark in the interview.
4.4. It is contended by the appellant that these three grounds are baseless because there is provision for reservation not only in the Constitution of India as well as the Government of Odisha vide Resolution dated 11th December, 2014 of the General Administration Department pertaining to "Reservation of Vacancies for Sportsmen in Group-A (Junior Branch) Services/Posts under the State Government" as clarified by Letter dated 19th January, 2021 laying down "Principles to be followed on Vertical and Horizontal Reservation during filling up of various State Civil Services and Posts".
4.5. Resolution dated 11th December, 2014 and Clarification dated 19th January, 2021 are extracted hereunder:
―GAD-SC-RES-0007-2014--33044/Gen Government of Odisha General Administration Department *** RESOLUTION Bhubaneswar, dated 8th December 2014 Subject: Reservation of vacancies for sportsmen in Group (JB) services/posts under the State Government.
General Administration Department Resolution No.24808/ Gen, Dated. 18.11.1985 provides for reservation of W.A. No.587 of 2024 Page 16 of 92 vacancies for sportsmen in Class-II, Class-III (presently Group-B, Group-C) Services/posts and in class-IV (presently Group-D) posts under the State Government, since earlier direct recruitment was being made only against Class-II, Class-III and Class-IV (i.e. Group-B, C, & D) civil posts and Services. Subsequently, status of some of the services/posts such as Odisha Administrative Service, Odisha Finance Service, Odisha Medical & Health Service, Odisha Engineering Service etc., have been upgraded. Thus direct recruitment in the entry grade of these services/posts are being made in Group-A (JB).
Government, therefore, after careful consideration have been pleased to extend the benefits of reservation for sportsmen enumerated in General Administration Department Resolution No.24808/Gen, Dated. 18.11.1985 in case of direct recruitment to Group A (JB) services/posts.
ORDER: Ordered that the Resolution be published in the extraordinary issue of the Odisha Gazette. Ordered also that copies of the Resolution be forwarded to all Departments of Government/all Heads of Departments/all Collectors/Registrar, Odisha High Court/Registrar, Odisha Administrative Tribunall/ Special Secretary, Odisha Public Service Commission/Secretary, Odisha Staff Selection Commission/Secretary, Odisha Sub-ordinate Staff Selection Commission, Bhubaneswar.
By Order of the Governor Sd/-
Special Secretary to Government *** W.A. No.587 of 2024 Page 17 of 92 ―Government of Odisha General Administration and Public Grievance Department No. GAD-SC-RES-0012-2020-1955 Gen., Dated, the 19th January, 2021 From Sanjeev Chopra, IAS Additional Chief Secretary to Government.
To All Departments of Government/ All Heads of Department/ All Collectors Sub.: Principles to be followed on Vertical and Horizontal reservation during filling up of various State Civil Services and Posts Clarification thereon.
Clarifications are very often sought for from G.A. & P.G. Department regarding the principles to be followed while filling up posts in State Civil Services and Posts as per vertical and horizontal reservation.
In order to fill up vacancies arising in different Civil Services and Civil Posts under the State Government of Odisha both vertical reservation and horizontal reservations are being followed. Hon'ble Supreme Court, in their judgment dated 18.07.2007 passed in Appeal (Civil) Petition No. 3132 of 2007, filed by Rajesh Kumar Daria Vrs. Rajasthan Public Service Commission and others, have observed various aspects in the matter of horizontal and vertical reservation. The copy of the orders s enclosed for ready reference.
W.A. No.587 of 2024 Page 18 of 92In order to fill up the vacancies as per the principles prescribed for reservation (both vertical and horizontal), the following instructions may be followed.
1. Types of reservation.--
There are two types of reservations, which may, for the sake of convenience, be referred to as ‗vertical reservations' and ‗horizontal reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and SEBC are termed as vertical reservations whereas reservations in favour of Women, Physically Handicapped, Ex-Servicemen, Sports persons are termed as horizontal reservations. The horizontal reservation are either ‗compartmental horizontal reservation' or ‗overall horizontal reservation'.
For example, in overall horizontal reservation, the reservation for women will be 1/3rd of total vacancies including all categories 1.c. SC/ST/SEBC and this number will not vary. However, in compartmentalized horizontal reservation, 1/3rd post will be reserved for women in all categories l.e. for individual category of SC/ST/SEBC. In this process, the total posts filled up by women may be more than 1/3 of the post filled up.
Illustration.--
If 100 posts are to be filled up, then as per overall horizontal reservation, 1/3rd posts (i.e. 33) are required to be filled up for women. In the process, the percentage of women may not be satisfied in respect of individual category, but in compartmental horizontal reservation, 1/3rd post for women are to W.A. No.587 of 2024 Page 19 of 92 be reserved in each category le. UR (w)-17, SEBC (w)-4, SC (w)-5, ST (w)-B. Hence, the total number of posts required to be filed up for women in compartmentalized horizontal reservation may be more than 1/3rd of total vacancy.
This system of compartmentalized horizontal reservation is being followed for filling up Civil Service and Civil posts in Odisha.
2. Nature of reservation.--
Reservations in favour of SC, ST and SEBC are ‗vertical reservations' and reservations in favour of physically handicapped, women etc. are ‗horizontal reservations'. Where a vertical reservation is made in favour of a particular category, the candidates belonging to such category may compete for non- reserved posts and if they are appointed to the non- reserved posts on their own merit, their numbers will not be counted against the quota reserved for the respective reserved categories.
For Example, if the number of SC candidates, who on their own merit get selected against open competition vacancies, the entire reservation quota shall remain available for SC Category candidates, in addition to those selected under open competition category. [Vide Indra Sawhney (Supra), R.K. Sabharwal Vrs. State of Punjab (1995 (2) SCC 745), Union of India Vrs. Virpal Singh Chauvan (1995 (6) SCC 684 and Ritesh R. Sah Vrs. Dr. Y.L. Yamul (1996 (3) SCC 253)].
3. Process of Selection.--
W.A. No.587 of 2024 Page 20 of 92 The proper and correct course is to first select the open competition quota (which is not less than 50%) on the basis of merit;
Then, select each of the vertical reservation quotas, i.e., SC, ST and SEBC.
In the next step, find out how many candidates belonging to special reservations (horizontal) have been selected on the above basis. Having done so:
a. If the quota fixed for horizontal reservations is already satisfied, no further question of selection arises.
b. If it is not so satisfied, the requisite number of horizontal reservation candidates shall have to be taken and adjusted/accommodated against their respective vertical reservation categories by deleting the corresponding number of candidates therefrom.
c. The process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations wherever required. In such a case, the reservation in favour of horizontal categories, overall, may be satisfied or may not be satisfied.
Illustration.--
Suppose 80 (eighty) posts are to be filled up by direct recruitment. Out of this, as per vertical reservation, ST quota (22.5%) will be 18 (including 6 women), SC quota (16.25%) will be 13 (including 4 W.A. No.587 of 2024 Page 21 of 92 women), SEBC quota (11.25%) will be 9 (Including 3 women) and UR quota will be 40 (including 13 women). This reservation quota for each individual category, starting with UR category, will be filled up first on merit. ST/SC/SEBC candidates selected on merit under UR category will not be counted against vertical reservation meant for ST/SC/SEBC.
Then the horizontal reservation for each category (horizontal) will be taken up in the manner as illustrated under ‗Reservation for Women' below. If in the process, required number of Ex-Servicemen (2 against 3%), PwD (3 against 4%) and Sports persons (1) against 1%) are represented, then there will be no need to make further reservation for them. However in case of short fall, the required number of candidates shall have to be taken from the merit by making adjustment (male/female) in the respective vertical reservation. For example, if there is shortfall of one PWD in the vertical reservation in all the categories, then the PWD appearing first in the merit list shall be selected and will be placed in the respective category (male/female) to which he/she belongs and necessary adjustments will be made in the select list.
4. Reservation for Women.--
In order to implement reservation for women, the proper procedure is first to fill up the quota for SC/ST in order of merit and then find out the number of candidates among them who belong to the horizontal reservation group of ‗SC-Women or ST- Women'. If the number of women in such list is equal to or more than the number of horizontal reservation quota, then there is no need for further selection towards the horizontal reservation quota. Only if W.A. No.587 of 2024 Page 22 of 92 there is any shortfall, the requisite number of SC/ST women shall have to be taken by deleting the corresponding number of male candidates from the bottom of the list. To this extent, horizontal reservation differs from vertical reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women.
Illustration.--
If 19 posts are reserved for SCs (of which the quota for women is six), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains six SC women candidates, then there is no need to disturb the list by including any further SC women candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next four SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of male candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain six women SC candidates. But if the list of 19 SC candidates contains more than six women candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess women candidate on the ground that ‗SC-women' have been selected in excess of the prescribed internal quota of six.
5. Reservation for Ex-Servicemen.--
The Odisha Ex-Servicemen (Recruitment to State Civil Services and Posts) Rules, 1985 prescribes that W.A. No.587 of 2024 Page 23 of 92 3 (three) per cent of the vacancies arising in a year in each of the categories of Class II and Class III Posts and Services or Class IV posts to be filled by direct recruitment shall be reserved for Ex- Servicemen. To fill up these reserved vacancies, the principles followed in horizontal reservation shall be followed.
6. Reservation for Persons with Disability.--
Government have prescribed reservation of not less than 4% in case of direct recruitment to Gr. A, B, C, and D posts for Persons with Disabilities (PwD) out of which one per cent reservation shall be earmarked for women with disability. These reservations will be filled up following the principles of horizontal reservation. The women quota in this category will be counted while computing the women reservation in the relevant category in the vertical reservation.
7. Reservation for Sportspersons.--
As prescribed in Resolution No. 24808., dtd. 18.11.1985 and Resolution No. 33044, dtd. 11.12.2014, one per cent of vacancies arising in a year in each of the categories of Group-A, Group-B, Group-C and Group-D posts filled up by direct recruitment shall be reserved for the Sportspersons. Principles of horizontal reservation shall be followed to fill up these reserved vacancies.
In case a SC/ST/SEBC Sportsperson is selected on merit, this will count towards the reservation.
8. Non-availability of required candidates.--
W.A. No.587 of 2024 Page 24 of 92In case required number of candidates in horizontal reservations are not available (either not applied or not qualified), the following steps may be taken:
a. In case of Women, if in any year, the vacancies reserved for women in a particular category remains unfilled, the unfilled vacancies shall be filled up by suitable male candidates of the same category. In such a case, if suitable male candidates are not available in that category the vacancy shall be kept unfilled. To be more specific, if reservation is for woman SC and no woman or man in SC category is available, the vacancy cannot be filled up by the candidates of any other category.
b. In case of Ex-Servicemen, if the vacancies reserved for the EX-Servicemen in a particular year are not filled up due to non-availability of suitable candidate, the backlog reserved vacancies for Ex-Servicemen shall be carried forward to the subsequent year/years of recruitment.
c. In case of PwD, if the vacancies reserved for the PwDs in a particular year are not filled up due to non-availability of suitable candidate, the backlog reserved vacancies for PwDs shall be carried forward to the subsequent year/years of recruitment.
It is, therefore, requested that above instructions may be kept in view by the Appointing Authorities while considering selection for filling up of horizontal reservation of different categories in various State Civil Services and Posts.W.A. No.587 of 2024 Page 25 of 92
The sub-ordinate offices under their control may be intimated accordingly.
Sd/-
19.01.2021 Additional Chief Secretary to Government‖ 4.6. Laying emphasis on the aforesaid Resolution as clarified subsequently, Dr. Kanungo urged that this Court may consider that she being eligible for the post of Assistant Professor of Sociology is entitled to claim horizontal reservation out of the five posts reserved for women in terms of Advertisement No.08 of 2020-21, dated 08.02.2021. She has taken this Court to Annexure-I appended to said Advertisement. Relevant portions of said Advertisement and Annexure appended thereto are extracted hereunder:
―Odisha Public Service Commission Advertisement No.08 of 2020-2021 Recruitment to the Posts of Assistant Professors in Different State Public Universities under the Administrative Control of the Higher Education Department ***
2. Vacancy Position.--
The vacancies subject wise, university wise including reservation status and PwD reservation are indicated in Annexure-I, II & III respectively of this advertisement as per requisition submitted by the Higher Education W.A. No.587 of 2024 Page 26 of 92 Department on Dt. 27.11.2020, after consolidating requisition of individual universities.
***
6. Method of Selection.--
The appointments and conditions of service are to be guided by the provisions laid down under the statutes as applicable to the State Public Universities.
There shall be shortlisting of candidates for each subject as per UGC Guideline. The Commission has decided that five times the number of vacancies shall be shortlisted for interview when the number of vacancies is more than two. For subjects where there are only one or two vacancies, ten candidates shall be shortlisted for interview.
The academic score as specified in Appendix-II (Table 3A) for Universities of UGC Regulation, 2018 shall be considered for shortlisting of candidates for interview and on selection shall be based only on performance in interview.
The Commission shall be competent to determine the manner of conduct of the proceedings and to take all decisions required for selection of Assistant Professors to the Universities consistent with the provisions of the Act and Regulations prescribed in this behalf by the Universities Grants Commission.
Commission shall prepare a list of candidates in order to merit on the basis of performance in the interview which shall be equal to the number of advertised vacancies.
The list recommended by the Commission shall remain valid for a period of one year from the date of recommendation by the Commission.
*** W.A. No.587 of 2024 Page 27 of 92 Annexure-I Total Consolidated Subject-wise Vacancy Position in the rank of Assistant Professor in State Public Universities.
Sl. Subject Vacancies with Total
No. Reservation Category
1-43 * * *
44. Sociology ST 2
SC 2
SEBC 2
Unreserved 9 (5W)
Total 15 (5W)
45-56 * * *‖
4.7. It is submitted by the appellant that as against the post of Assistant Professor in discipline "Sociology", out of fifteen vacant posts advertised, nine posts were kept for unreserved (UR) category and out of those nine posts, five posts were meant for UR (Women) candidates. It is alleged that the Odisha Public Service Commission ("OPSC") recommended Women candidates belonging to reserved category as against vacancies of UR (Women) category. Therefore, it is argued that since the OPSC did not follow the method of selection in right perspective as specified in Paragraph 6 of the Advertisement dated 08.02.2021 and the UGC Regulation, 2018, the non- recommendation of the name of the appellant for appointment as against UR (Women) vacancy in the discipline of Sociology is not tenable. She went on to argue further by amplifying that since no cut-off mark was fixed for assessing performance in the interview, the W.A. No.587 of 2024 Page 28 of 92 OPSC could not take stand that the appellant failed to secure cut-off mark and, therefore, there was no justification for the OPSC not to recommend her name for the post of Assistant Professor of Sociology. The Order dated 20.12.2022 of the Government of Odisha having not considered such aspects while disposing of the representation of the appellant pursuant to direction of this Court, it is, strenuously urged by Dr. Archana Kanungo to set aside the Judgment dated 13.03.2024 of the learned Single Judge of this Court.
4.8. It is submitted by Dr. Archana Kanungo that out of fifteen posts advertised for the post of Assistant Professor of Sociology, twelve names were recommended by the OPSC and as a result of which three posts remained vacant. By virtue of interim Order dated 22.03.2023 passed in W.P.(C) No.7280 of 2023 that "As an interim measure, it is directed that one post of Assistant Professor of Sociology pursuant to Advertisement under Annexure-1 shall not be filled up, if the same has not been filled up in the meantime", one post has been kept vacant. Since her API score was the highest, she was shortlisted and called for the interview. Though she participated in said interview and did well, her name was not recommended for appointment to the said post. It is the bone of contention of Dr. Kanungo that she, being Sportsperson having valid Identity card, W.A. No.587 of 2024 Page 29 of 92 should have been given opportunity to join in the service of University.
4.9. It is alleged that certain candidates who did not participate along with her in the process of verification of documents and did not participate in the process of recruitment pertaining to Advertisement No.08 of 2020- 21, but having participated in response to Advertisement pertaining to 2021-22 were declared successful. Hence it is pleaded that as against them, the appellant, being Sportsperson having valid identity card, has been treated with discrimination. She has sought to argue that even though the said candidates did not participate in terms of Advertisement No.08 of 2020-21, their recommendation by the OPSC is illegal and irregular. Therefore, serious prejudice is caused to her. To buttress her contention she has placed reliance on the decisions rendered by a learned Single Judge of this Court in the case of Dr. Priyaranjan Maral Vrs. State of Odisha, W.P.(C) No.39640 of 2021, vide Judgment dated 11.07.2022 and Judgment dated 29.07.2021 of learned Single Judge of the Andhra Pradesh High Court delivered in the case of J. Venkat Balaji Vrs. State of Andhra Pradesh, 2021 SCC OnLine AP 2168 = (2021) 5 ALD 233.
5. This Court takes note of presence of Sri Manoj Kumar Khuntia, learned Additional Government Advocate who W.A. No.587 of 2024 Page 30 of 92 took part in the hearing of the present case. But for what has been reflected by the learned Single Judge in the Judgment dated 13.03.2024, and material available on the record relating to writ proceeding, he has nothing more to add.
THE WRIT PETITION AND THE JUDGMENT DATED 13.03.2024 OF THE LEARNED SINGLE JUDGE:
6. The learned Single Judge after elaborate discussion by taking note of contentions and submissions made by the appellant, who appeared in-person and argued the matter before him, came to dismiss the writ petition.
6.1. On perusal of record relating to writ proceeding, it is ascertained from the counter affidavit dated 19.04.2023 filed by the Additional Secretary in the Office of the Odisha Public Service Commission, Cuttack that as per requisition received from the Government of Odisha in Higher Education Department there was no specification regarding reservation under "Sportsperson" category for recruitment of Assistant Professor in different State Public Universities relating to Advertisement No.08 of 2020-21.
6.2. It transpires from said affidavit that "there was no reservation for the post provided for Sportsperson for recruitment to the post of Assistant Professor, Sociology"
pursuant to aforesaid advertisement and that the appellant-writ petitioner was found "not suitable by the W.A. No.587 of 2024 Page 31 of 92 Interview Board". It is affirmed by the OPSC in the said counter affidavit as follows:
―That, by and large the selection is based on the performance of the candidate in the interview in which the Board comprising Experts assess the domain knowledge, pedagogic skill and quality of publications etc., of a candidate and recommend their suitability or otherwise for the post.‖ 6.3. The stance taken on behalf of the OPSC has been recorded by the learned Single Judge at paragraph 4 of the impugned Judgment, which reads as follows:
―It is contended that in terms of the guideline prescribed in Para 6 of the advertisement, taking into account the academic score secured by the Petitioner, she was shortlisted for the purpose of interview and was called to attend the interview vide notice issued on 16.04.2022 under Annexure-7. In the notice issued under Annexure-7 it was indicated that Pedagogy skill is part of the interview and the candidates have to come prepared to present a topic of their choice within 8 to 10 minutes before the Interview Board and the Board shall be provided by the Commission for the purpose.‖ 6.4. The position qua the appellant has been made clear before the writ Court by the Senior Advocate appearing for the OPSC that whereas the appellant secured 15 marks out of 100 marks, the last candidate in the category of "UR (Women)" so selected and was recommended vide Notice dated 23.05.2022 secured 51 marks. Therefore, objection ought not to have been W.A. No.587 of 2024 Page 32 of 92 raised by the appellant alleging illegality or irregularity committed by the OPSC in not recommending the name of the present appellant against vacancy meant to be filled up by candidate of "unreserved (Women)" category.
6.5. It is seriously disputed before the writ Court by the OPSC to justify its action by contending that in the Advertisement No.08 of 2020-21, nothing is specified as regards reservation in the category of "Women-
Sportsperson" and it is strongly objected to that the appellant after participating in the selection process cannot turn around and take a stand that non- specification of such reservation in the Advertisement dated 08.02.2021 posed discriminatory treatment as against those whose names were sponsored by the OPSC.
6.6. Having regard to the ratio laid down in Madras Institute of Development Studies Vrs. K. Sivasubramaniyan, (2016) 1 SCC 454 and the decision of this Court in the case of Kunilata Dutta Vrs. State of Odisha, 2010 (Supp.-II) OLR 437, the learned Single Judge came to the conclusion as follows:
―9.3. It is also found that in the advertisement issued under Annexure-1, no reservation was provided for Sportsperson. Since the Petitioner knowing fully well that no reservation is there for Sportsperson and participated in the selection process, after becoming unsuccessful, she cannot take a plea that such W.A. No.587 of 2024 Page 33 of 92 reservation was not provided, in view of the decision of the Hon'ble Apex Court in the case of Madras Institute of Development Studies and the order passed by this Court in the case of Kunilata Dutta. Not only that since in terms of Para 6 the selection after short listing of the candidate is only to be made basing on the performance in the interview and in the interview the Petitioner has only secured 15 marks and has been placed at Sl. No. 59 of the merit list in the discipline ‗Sociology', no illegality or irregularity can also be found with regard to non- recommendation of the Petitioner. No direction can also be issued directing the Commission to recommend the name of the Petitioner as against the three (3) unfilled vacancies as those vacancies are against reserved categories and process of selection has since been completed.‖ 6.7. Touching upon the merit of the matter in consideration of rival contentions and arguments advanced by the counsel for respective parties with particular reference to "Method of Selection" envisaged in Paragraph 6 of Advertisement No.08 of 2020-21, dated 08.02.2021, it has also been observed by the learned Single Judge as follows:
―9.1. As found from the same, for shortlisting of candidates to be called for interview the academic score as specified in Appendix-II (Table-3-A) for Universities of UGC Regulation 2018 shall be considered and selection shall be based only on the performance in the interview. Since the Petitioner secured the required academic score, she was shortlisted and called for the interview vide notice W.A. No.587 of 2024 Page 34 of 92 issued under Annexure-7. In terms of Para 6 of the advertisement the selection was made basing on the performance in the interview and as found from the record, Petitioner has scored only 15 marks out of 100 marks in the interview and the last such recommended candidate in UR (Women) category has secured 51 marks. Petitioner's position in the merit list also stands at Sl. No. 59, as against 15 vacancies so advertised in the discipline Sociology.
9.2. In view of such analysis and the marks secured by the Petitioner in the interview, which is the sole basis of selecting and recommending a candidate, this Court finds no illegality or irregularity with the action of the Commission in not recommending her name for appointment as against the discipline Sociology in UR (Women) category.‖ ANALYSIS AND DISCUSSIONS:
7. This Court, having taken cognizance of Method of Selection as outlined in paragraph 6 of the Advertisement No.08 of 2020-21, dated 08.02.2021, observes the perception ascribed by the learned Single Judge as just and proper.
7.1. It is abundantly clear from minute reading of said method that though API score is relevant for shortlisting candidates for attending interview, the selection is to be made based "only on performance in interview". The use of the word "only" in the expression "selection shall be based only on performance in interview" has significance.W.A. No.587 of 2024 Page 35 of 92
7.2. The meaning of the word "only" has been given in Webster's Universal College Dictionary, 1997 Edition as:
―adv. 1. Without others or anything further; alone; solely; exclusively: This information is for your eyes only. 2. no more than; merely; just: only on weekends; If it were only true! 3. as recently as: / read that article only yesterday.
4. in the final outcome or decision: That will only make matters worse. -adj. 5. being the single one or the relatively few of the kind; lone; sole: the only seat left. 6.
having no sibling or no sibling of the same sex: an only child. -conj. 7. but (introducing a single restriction, restraining circumstance, or the like): I would have gone, only you objected. 8. Older Use. except: but: Only for him you would not be here. -Idiom. 9. only too, very; extremely.‖ 7.3. The Hon'ble Supreme Court of India in Hari Ram Vrs.
Babu Gokul Prasad, (1991) Supp.2 SCC 608 = AIR 1991 SC 427 suggested the understanding of "only" in statutory provision in the following manner:
―The word ‗only' in explanation (iii) is significant. It postulates that entire land should have been used for the purposes enumerated.‖ 7.4. Thus, the presence of the word "only" in Paragraph 6 of the Advertisement dated 08.02.2021 unambiguously leads to show that the performance in the interview is the sole factor for declaring a candidate successful. In other words, it may be stated that the shortlisted candidate as per the academic score in terms of Appendix-II (Table 3A) for universities of UGC W.A. No.587 of 2024 Page 36 of 92 Regulation, 2018 would be selected based on performance in the interview.
8. This apart, paragraph 8 of the Advertisement No. 08 of 2020-21, dated 08.02.2021 dealing with "other conditions" inter alia provided:
―(c) This Advertisement should not be construed as binding on the University to make appointment;
***
(g) Mere empanelment in the selection list shall not confer any right for appointment unless the University is satisfied after making such enquiry as may be deemed necessary that the candidate is suitable in all respect for appointment to the service.‖
8.1. The learned Single Judge has meticulously examined the factors leading to rejection of claim of the appellant and upheld the said Order dated 20.12.2022 of the Government of Odisha in Higher Education Department, having found no illegality and irregularity.
9. With the eyes wide open, the appellant offered her candidature and participated in the recruitment process being well acquainted with the terms and conditions contained in the Advertisement dated 08.02.2021. As is apparent from Advertisement five posts in the "unreserved" category are carved out for women and no reservation is provided specifically for Sportsperson (Women) in the said category.
W.A. No.587 of 2024 Page 37 of 929.1. Therefore, after participation in the recruitment process and being aware of the outcome of such process, the appellant has no occasion to challenge the terms of Advertisement by taking aid of Resolution dated 11.12.2014 read with Clarification dated 19.01.2021 of the Government of Odisha in General Administration and Public Grievance Department.
9.2. The Supreme Court in the case of Madras Institute of Development Studies Vrs. K. Sivasubramaniyan, (2016) 1 SCC 454 had the occasion to deal with a question as to whether a person who consciously takes part in the process of selection can turn around and question the method of selection. In the said case holding that such question is no longer res integra, it has been observed as follows:
―15. In G. Sarana Vrs. University of Lucknow, (1976) 3 SCC 585, a similar question came up for consideration before a three-Judge Bench of this Court where the fact was that the petitioner had applied to the post of Professor of Anthropology in the University of Lucknow. After having appeared before the Selection Committee but on his failure to get appointed, the petitioner rushed to the High Court pleading bias against him of the three experts in the Selection Committee consisting of five members. He also alleged doubt in the constitution of the Committee. Rejecting the contention, the Court held: (SCC p. 591, para 15) W.A. No.587 of 2024 Page 38 of 92 ‗15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee. This view gains strength from a decision of this Court in Manak Lal Vrs. Prem Chand Singhvi, AIR 1957 SC 425 wherein more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting: (AIR p. 432, para 9) ‗9. *** It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point.'
16. In Madan Lal Vrs. State of J&K, (1995) 3 SCC 486, similar view has been reiterated by the Bench which held that: (SCC p. 493, para 9) ‗9. Before dealing with this contention, we must keep in view the salient fact that the petitioners W.A. No.587 of 2024 Page 39 of 92 as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus, the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In Om Prakash Shukla Vrs. Akhilesh Kumar Shukla, 1986 Supp SCC 285 it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.'
17. In Manish Kumar Shahi Vrs. State of Bihar, (2010) 12 SCC 576, this Court reiterated the principle laid W.A. No.587 of 2024 Page 40 of 92 down in the earlier judgments and observed: (SCC p.
584, para 16) ‗16. We also agree with the High Court [Manish Kumar Shahi Vrs. State of Bihar, 2008 SCC OnLine Pat 321 : (2009) 1 AIR Jhar R 1015] that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition.'
18. In Ramesh Chandra Shah Vrs. Anil Joshi, (2013) 11 SCC 309, recently a Bench of this Court following the earlier decisions held as under: (SCC p. 320, para 24) ‗24. In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge [Anil Joshi Vrs. State of W.A. No.587 of 2024 Page 41 of 92 Uttarakhand, 2012 SCC OnLine Utt 521] and the Division Bench [Ravi Shankar Joshi Vrs. Anil Joshi, 2012 SCC OnLine Utt 766] of the High Court committed grave error by entertaining the grievance made by the respondents.' ***‖ 9.3. In Ashok Kumar Vrs. State of Bihar, (2017) 4 SCC 357 it has been laid down that:
―13. The law on the subject has been crystallised in several decisions of this Court. In Chandra Prakash Tiwari Vrs. Shakuntala Shukla, (2002) 6 SCC 127, this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. In Union of India Vrs. S. Vinodh Kumar, (2007) 8 SCC 100, this Court held that: (SCC p. 107, para 18) ‗18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. (See Munindra Kumar Vrs. Rajiv Govil, (1991) 3 SCC 368 and Rashmi Mishra Vrs. M.P. Public Service Commission, (2006) 12 SCC 724.)'
14. The same view was reiterated in Amlan Jyoti Borooah, (2009) 3 SCC 227, wherein it was held to W.A. No.587 of 2024 Page 42 of 92 be well settled that the candidates who have taken part in a selection process knowing fully well the procedure laid down therein are not entitled to question it upon being declared to be unsuccessful.
***
16. In Vijendra Kumar Verma Vrs. Public Service Commission, (2011) 1 SCC 150, candidates who had participated in the selection process were aware that they were required to possess certain specific qualifications in computer operations. The appellants had appeared in the selection process and after participating in the interview sought to challenge the selection process as being without jurisdiction. This was held to be impermissible.
17. In Ramesh Chandra Shah Vrs. Anil Joshi, (2013) 11 SCC 309 candidates who were competing for the post of Physiotherapist in the State of Uttarakhand participated in a written examination held in pursuance of an advertisement. This Court held that if they had cleared the test, the respondents would not have raised any objection to the selection process or to the methodology adopted. Having taken a chance of selection, it was held that the respondents were disentitled to seek relief under Article 226 and would be deemed to have waived their right to challenge the advertisement or the procedure of selection. This Court held that: (SCC p. 318, para 18) ‗18. It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome.' W.A. No.587 of 2024 Page 43 of 92
18. In Chandigarh Admn. Vrs. Jasmine Kaur, (2014) 10 SCC 521, it was held that a candidate who takes a calculated risk or chance by subjecting himself or herself to the selection process cannot turn around and complain that the process of selection was unfair after knowing of his or her non-selection. In Pradeep Kumar Rai Vrs. Dinesh Kumar Pandey, (2015) 11 SCC 493, this Court held that: (SCC p. 500, para 17) ‗17. Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the appellants did not challenge it at that time. This, it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted.' ***‖ 9.4. The learned Single Judge has also referred to a Judgment of co-ordinate Bench of this Court rendered in the case of Kunilata Dutta Vrs. State of Odisha, 2010 SCC OnLine Ori 244 = 109 (2010) CLT 675 in order to fortify the stand that after participation consciously, the unsuccessful participant thereafter cannot be permitted W.A. No.587 of 2024 Page 44 of 92 to turn around to avail relief on the specious plea that the Advertisement was defective. This Court had observed in the said case as follows:
―21. Additionally, it is seen that the Petitioner has applied to be selected in the second advertisement also. Now after being unsuccessful in her attempt to get selected, the Petitioner has filed this Writ Petition challenging the advertisement dated 09.07.2007. In Dhananjay Malik Vrs. State of Uttaranchal, (2008) 4 SCC 171 = 2009 AIR SCW 3265; the Apex Court held that when the Petitioner took a chance by appearing in the selection process and only after they did not find themselves as successful candidates, they cannot challenge the selection process. In other words, when the Petitioner has applied for being selected & took part in the selection process without any demur, she cannot later on challenge the issuance of the second advertisement, She is estopped and precluded the questioning the said selection process.‖ 9.5. This Court in Krishna Kumar Rout Vrs. Collector, Balasore, W.P.(C) No.82 of 2013, vide Order dated 23.03.2021, held as follows:
―Considering the contentions raised by learned counsel for the parties and after going through the records, admittedly pursuant to advertisement issued, the petitioner applied for the post of M.I.S.-cum-Planning Coordinator, SSA, Balasore and participated in the process of selection. He has also given an undertaking to the effect that he will have no objection to the selection list and expressed her willingness to participate in the Functional Computer Literacy Test for the aforesaid post W.A. No.587 of 2024 Page 45 of 92 and shall abide by the terms and conditions of the examination and accept the result finalized by the examiner. After furnishing the undertaking, the petitioner participated in the said test and having secured less percentage of marks, she has not been selected. Therefore, once he participated in the process of selection and became unsuccessful, he cannot turn around and challenge the same, which is not permissible in view of law laid down by the apex Court in Om Prakash Vrs. Akhilesh Kumar, AIR 1986 SC 1043; Union of India Vrs. S. Vinodh Kumar, AIR 2008 SC 5 and K.H. Siraj Vrs. High Court of Kerala, 2006 SC 2339.‖
10. Considering the matter on a different angle, it is but prudent to observe that mere selection of candidate would not entail indefeasible right to claim appointment to the post applied for.
10.1. The principle regarding selection of candidate has been well established in service jurisprudence; suffice it to quote the following lines from Manoj Manu Vrs. Union of India, (2013) 10 SCR 8:
―14. It is, thus, manifest that though a person whose name is included in the select list, does not acquire any right to be appointed. The Government may decide not to fill up all the vacancies for valid reasons. Such a decision on the part of the Government not to fill up the required/advertised vacancies should not be arbitrary or unreasonable but must be based on sound, rational and conscious application of mind. Once, it is found that the decision of the Government is based on some valid reason, the Court would not W.A. No.587 of 2024 Page 46 of 92 issue any Mandamus to Government to fill up the vacancies.‖ 10.2. In Shankarsan Dash Vrs. Union of India, (1991) 3 SCC 47, a Constitution Bench of the Supreme Court held that:
―7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana Vrs. Subash Chander Marwaha, (1974) 3 SCC 220, Neelima Shangla Vrs. State of Haryana, (1986) 4 SCC 268, or Jatindra Kumar Vrs. State of Punjab, (1985) 1 SCC 122.‖ 10.3. In a Judgment reported as S.S. Balu Vrs. State of Kerala, (2009) 2 SCC 479, it was held that:W.A. No.587 of 2024 Page 47 of 92
―12. There is another aspect of the matter which cannot also be lost sight of. A person does not acquire a legal right to be appointed only because his name appears in the select list. (See Pitta Naveen Kumar Vrs. Raja Narasaiah Zangiti, (2006) 10 SCC 261. The State as an employer has a right to fill up all the posts or not to fill them up. Unless a discrimination is made in regard to the filling up of the vacancies or an arbitrariness is committed, the candidate concerned will have no legal right for obtaining a writ of or in the nature of mandamus. See Batiarani Gramiya Bank Vrs. Pallab Kumar, (2004) 9 SCC 100.‖ 10.4. In Pitta Naveen Kumar Vrs. Raja Narasaiah Zangiti, (2006) 10 SCC 261, it was held as follows:
―32. *** A candidate does not have any legal right to be appointed. He in terms of Article 16 of the Constitution of India has only a right to be considered therefor. Consideration of the case of an individual candidate although ordinarily is required to be made in terms of the extant rules but strict adherence thereto would be necessary in a case where the rules operate only to the disadvantage of the candidates concerned and not otherwise.‖ 10.5. In another Judgment reported in Kulwinder Pal Singh Vrs. State of Punjab, (2016) 6 SCC 532, it was held as under:
―10. It is fairly well settled that merely because the name of a candidate finds place in the select list, it would not give him indefeasible right to get an appointment as well. The name of a candidate may appear in the W.A. No.587 of 2024 Page 48 of 92 merit list but he has no indefeasible right to an appointment vide Food Corporation of India Vrs. Bhanu Lodh, (2005) 3 SCC 618, All India SC & ST Employees' Association Vrs. A. Arthur Jeen, (2001) 6 SCC 380 and UPSC Vrs. Gaurav Dwivedi, (1999) 5 SCC 180.
11. This Court again in State of Orissa Vrs. Rajkishore Nanda (2010) 6 SCC 777, held as under:
‗14. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate.
***
16. A select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required.' ***‖
11. Dr. Archana Kanungo, the appellant, referring to the Judgment dated 11.07.2022 rendered by learned Single Judge of this Court in the case of Dr. Priyaranjan Maral and Others Vrs. State of Odisha and Others, W.P.(C) No.39640 of 2021, submitted that the Advertisement No.08 of 2020-21 is tainted by bias as this Court in the said case held that Dr. B. Rangaiah, Professor of Psychology and Dr. Indramani Lal Singh, Professor of W.A. No.587 of 2024 Page 49 of 92 Psychology being part of the Interview Board had nexus with candidates appearing for the post of Assistant Professor of Psychology in response to Advertisement No.08 of 2020-21.
11.1. Taking aid of the Judgment rendered by the learned Single Judge in the case of Dr. Priyaranjan Maral (supra) is thoroughly misconceived and misdirected inasmuch as the post involved therein was Assistant Professor of "Psychology" and it has been held in the said case at paragraph 23 that, "In the present case, the possibility of bias on the part of Dr. B. Rangaiah and Dr. Indramani Lal Singh as against the other candidates in the fray and leaning in favour of the candidates having a direct nexus with them, loans (sic. looms) large."
11.2. The factual matrix of said case is quite distinguishable from the instant case. Nonetheless, such a fact that the Board constituted for the purpose of conducting interview of candidates called for in connection with the post of Assistant Professor of Sociology is tainted with bias and members of the Board had nexus with any named candidate has not been pleaded with material particulars by the appellant in the instant case. Rather, the appellant got fairness in consideration of merit and the Interview Board being experts in the field, their decision cannot be lightly brushed aside.W.A. No.587 of 2024 Page 50 of 92
11.3. In National Institute of Mental Health and Neuro Sciences Vrs. Dr. K. Kalyana Raman, 1992 Supp. (2) SCC 481 it has been held as follows:
―7. We will first consider the second point. In the first place, it must be noted that the function of the Selection Committee is neither judicial nor adjudicatory. It is purely administrative. The High Court seems to be in error in stating that the Selection Committee ought to have given some reasons for preferring Dr. Gauri Devi as against the other candidate. The selection has been made by the assessment of relative merits of rival candidates determined in the course of the interview of candidates possessing the required eligibility. There is no rule or regulation brought to our notice requiring the Selection Committee to record reasons. In the absence of any such legal requirement the selection made without recording reasons cannot be found fault with. The High Court in support of its reasoning has however, referred to the decision of this Court in Union of India Vrs. Mohan Lal Capoor, (1973) 2 SCC 836 = (1974) 1 SCR 797. That decision proceeded on a statutory requirement. Regulation 5(5) which was considered in that case required the Selection Committee to record its reasons for superseding a senior member in the State Civil Service. The decision in Capoor case, (1973) 2 SCC 836 = (1974) 1 SCR 797 was rendered on September 26, 1973. In June 1977, Regulation 5(5) was amended deleting the requirement of recording reasons for the supersession of senior officers of the State Civil Services. The Capoor case, (1973) 2 SCC 836 = (1974) 1 SCR 797 cannot, therefore, be W.A. No.587 of 2024 Page 51 of 92 construed as an authority for the proposition that there should be reason formulation for administrative decision. Administrative authority is under no legal obligation to record reasons in support of its decision. Indeed, even the principles of natural justice do not require an administrative authority or a Selection Committee or an examiner to record reasons for the selection or non-selection of a person in the absence of statutory requirement. This principle has been stated by this Court in R.S. Dass Vrs. Union of India, 1986 Supp SCC 617, in which Capoor Case, (1973) 2 SCC 836 = (1974) 1 SCR 797 was also distinguished.
8. As to the first point we may state at the outset that giving of reasons for decision is different from, and in principle distinct from, the requirements of procedural fairness. The procedural fairness is the main requirement in the administrative action. The ‗fairness' or ‗fair procedure' in the administrative action ought to be observed. The Selection Committee cannot be an exception to this principle. It must take a decision reasonably without being guided by extraneous or irrelevant consideration. But there is nothing on record to suggest that the Selection Committee did anything to the contrary. The High Court however, observed, that Dr. Kalyana Raman did not receive a fair and reasonable consideration by the Selection Committee. The inference in this regard has been drawn by the High Court from the statement of objections dated February 18, 1980 filed on behalf of the Selection Committee. It appears that the Selection Committee took the stand that Dr. Kalyana Raman did not satisfy the minimum requirement of experience and was not eligible for selection. The High Court went on to state that it W.A. No.587 of 2024 Page 52 of 92 was somewhat extraordinary for the Selection Committee after calling him for the interview and selecting him for the post by placing him second, to have stated that he did not satisfy the minimum qualifications prescribed for eligibility. According to the High Court the stand taken by the Selection Committee raises serious doubts as to whether the deliberations of the Selection Committee were such as to inspire confidence and reassurance as to the related equality and justness of an effective consideration of this case. It is true that selection of the petitioner and the stand taken by the Selection Committee before the High Court that he was not eligible at all, are, indeed, antithetical and cannot co-exist. But the fact remains that the case of Dr. Kalyana Raman was considered and he was placed second in the panel of names. It is not shown that the selection was arbitrary or whimsical or the Selection Committee did not act fairly towards Dr Kalyana Raman. The fact that he was placed second in the panel, itself indicates that there was proper consideration of his case and he has been treated fairly. It should not be lost sight of that the Selection Committee consisted of experts in the subject for selection. They were men of high status and also of unquestionable impartiality. The Court should be slow to interfere with their opinion.‖ 11.4. It is a settled position of law that when a Selection Committee recommends the selection of a person, the same cannot be presumed to have been done in an erroneous or mechanical manner in the absence of any allegation of favouritism or bias. That a presumption arises as regards the correctness of the decision of a W.A. No.587 of 2024 Page 53 of 92 Selection Committee and the party who makes the allegation of bias or favouritism is required to prove the same. Thus, in the absence of mala fides against the members, selection by a Selection Committee cannot be doubted. Reliance can be had on Union of India Vrs. Bikash Kuanar, (2006) 8 SCC 192; Sadananda Halo Vrs. Momtaz Ali Sheikh, (2008) 4 SCC 619; University of Mysore Vrs. C.D. Govinda Rao, (1964) 4 SCR 575.
11.5. At this juncture it may be pertinent to reiterate that the learned Single Judge has returned a finding of fact that "In terms of Para 6 of the Advertisement the selection was made basing on the performance in the interview and as found from the record, petitioner has scored only 15 marks out of 100 marks in the interview and the last such recommended candidate in UR (Women) category has secured 51 marks. Petitioner's position in the merit list also stands at Serial No.59, as against 15 vacancies so advertised in the discipline Sociology."
11.6. In the similar fashion the decision of the Andhra Pradesh High Court rendered in the case of J. Venkat Balaji Vrs. State of Andhra Pradesh, 2021 SCC OnLine AP 2168 = (2021) 5 ALD 233 is distinguishable on facts and has no similitude with the present case. In the said case before the Andhra Pradesh High Court, the issue for consideration was "the stipulation in Form-1 is that he (Sportsperson, who played competitive tennis at a W.A. No.587 of 2024 Page 54 of 92 certain level) should have represented the country in an International tournament is the bone of contention". In the present case, nevertheless, the Advertisement at Paragraph 6 clearly stipulated that "selection shall be based only on performance in interview".
11.7. Visiting the web-portal of Andhra Pradesh High Court it could be ascertained that the Andhra Pradesh Public Service Commission carried said matter in J. Balaji (supra) in appeal, being Writ Appeal No.762 of 2021, which came to be disposed of by passing following Order on 13.12.2021:
―This writ appeal is preferred against the order dated 29.07.2021 passed by the learned single Judge in W.P.No.11057 of 2021.
In the course of hearing, Mr. R.V. Mallikarjuna Rao, learned standing counsel for the appellant, seeks permission of the Court to withdraw the writ appeal with liberty to the appellant to file a fresh appeal if the occasion so warrants after the selection process is completed.
Mr. Y. Balaji, learned counsel for respondent No.1/writ petitioner, has no objection.‖ 11.8. From the aforesaid order in writ appeal, it is unambiguous that the writ petition in J. Venkat Balaji (supra) was filed before the selection process was completed. On the contrary, in the present case the appellant, after being found unsuccessful for the post of W.A. No.587 of 2024 Page 55 of 92 Assistant Professor of Sociology in connection with Advertisement dated 08.02.2021 as a result of performance in the interview and she was aware of being placed at Serial No.59 of the select list, preferred the writ petition.
11.9. This Court wishes to have regard to the dicta of the Supreme Court in Padma Sundara Rao Vrs. State of Tamil Nadu, (2002) 3 SCC 533, wherein it has been observed that the ratio of a judgment has to be read in the context of the facts of the case and even a single fact can make a difference. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.
11.10. Referring to Bharat Petroleum Corporation Ltd. Vrs.
N.R. Vairamani, (2004) 8 SCC 579; Sarva Shramik Sanghatana (KV), Mumbai Vrs. State of Maharashtra, (2008) 1 SCC 494; and Bhuwalka Steel Industries Limited Vrs. Bombay Iron & Steel Labour Board, (2010) 2 SCC 273, it has been succinctly laid down in Union of India W.A. No.587 of 2024 Page 56 of 92 Vrs. Arulmozhi Iniarasu, [2011] 9 SCR 1 = (2011) 7 SCC 397 that, observations of Courts are neither to be read as Euclid's theorems nor as provisions of Statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Disposal of cases by blindly placing reliance on a decision is not proper because one additional or different fact may make a world of difference between conclusions in two cases.
11.11. Except saying that referred cases in Dr. Priyaranjan Maral (supra) and J. Venkat Balaji (supra) are applicable to the case of the appellant, Dr. Archana Kanungo has not demonstrated before this Court as to the similarity in facts.
11.12. In such view of the matter and having regard to the well-settled principle of interpretation, the point raised by the appellant, stemming on aforesaid decisions in Priyaranjan Maral (supra) and J. Venkat Balaji (supra), being devoid of identicality in fact-situation, is dispelled.
12. A feeble attempt has been made to question the veracity of sponsoring names of certain other candidates for appointment in the post of Assistant Professor of Sociology, who have allegedly not participated in the process of document verification/screening and to countenance her submission that there was illegality and irregularity committed by the Interview Board. She W.A. No.587 of 2024 Page 57 of 92 further went on to argue that such factor poses discrimination.
12.1. Without any specific averment neither in the writ petition nor the writ appeal, such a plea cannot be taken up for adjudication at this stage. Such plea by introducing fresh material like copy of Notice No.2723-- (IR-49-21-22) (DR-V)/PSC, dated 17.03.2022 by way of written note of arguments, in the humble opinion of this Court, is not tenable.
12.2. This Court in Arun Kumar Guru Vrs. Orissa Forest Development Corporation Ltd., 91 (2001) CLT 693 (Ori) held that rejoinder is not for raising a fresh plea which was not raised in the writ petition. It is basically to explain something which may become necessary in view of the averments made in the counter-affidavit which may be something not arising from any averment made in the writ petition. If new facts are to be brought on record or a relief other than what was originally claimed, is to be included, then the proper course is to amend the writ petition and not go on filing rejoinder after rejoinder.
12.3. When a point, which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the W.A. No.587 of 2024 Page 58 of 92 counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. There is a distinction between a hearing under the Code of Civil Procedure, 1908 and a writ petition or a counter affidavit. While in a pleading, i.e., a plaint or written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. Reference may be had to Bharat Singh Vrs. State of Haryana, AIR 1988 SC 2181.
12.4. In Steel Authority of India Ltd. Vrs. State of Orissa, O.J.C. Nos. 675 & 4568 of 1996, this Court vide Order dated 19.01.2009 made it clear that writ petition must contain all necessary pleadings disclosing all facts and the rights in favour of the petitioner. It must disclose as to when and how the cause of action had arisen and any action or order passed by the opposite parties which has created any hindrance to the rights of the petitioner. If the aforesaid particulars are not disclosed the Court should not entertain the writ petition.
12.5. It may not be inapposite to have reference to W.P.(C) No. 36916 of 2022, wherein the instant appellant has approached this Court with a prayer to direct the W.A. No.587 of 2024 Page 59 of 92 opposite parties for selecting the candidate (Dr. Archana Kanungo) in the post of Assistant Professor (Stage-I) in the Discipline of Sociology under Sportsperson Category and thereby to consider her candidature as a direct recruit in the post of Assistant Professor (Stage-I) in the discipline of Sociology under Sportsperson Category as per Advertisement No. 14 of 2021-2022. The learned Single Judge disposed of said writ petition vide Judgment dated 24th November, 2023 by observing thus:
―Law is well-settled that persons likely to be vitally affected by the judgment/order of the Court are necessary parties and therefore, no order can be passed in their absence. Reference may be had to the decision of the Supreme Court in the case of Prabodh Verma Vrs. State of U.P., reported in (1984) 4 SCC 251, paragraph-28 of which being relevant is quoted hereinbelow:
‗28. The real question before us, therefore, is the correctness of the decision of the High Court in the Sangh case, 1979 AllLJ 178. Before we address ourselves to this question, we would like to point out that the writ petition filed by the Sangh suffered from two serious, though not incurable, defects. The first defect was that of non-joinder of necessary parties. The only respondents to the Sangh's petition were the State of Uttar Pradesh and its concerned officers. Those who were vitally concerned, namely, the reserve pool teachers, were not made parties-- not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents. The matter, therefore, came to be decided in their absence. A High Court ought not to W.A. No.587 of 2024 Page 60 of 92 decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh's writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary parties.' Since the number of posts notified is fixed (6 UR posts) granting relief to the petitioner claimed would entail quashing the selection of at least one selected candidate which cannot be validly done in his/her absence.‖ 12.6. Aforesaid Judgment of learned Single Judge in W.P.(C) No. 36916 of 2022 was carried in intra-Court appeal being W.A. No. 2999 of 2023. The Division Bench of this Court (where one of us, Shri Chakradhari Sharan Singh, CJ, is the author of the Judgment) while dismissing said writ appeal, observed as follows:
―12. It is a fact not in dispute that the appellant had applied against the post of Assistant Professor in Sociology. She belongs to UR category and claimed horizontal reservation against 1% of the posts reserved for the sportspersons. There were 12 posts in unreserved category of Assistant Professor in Sociology. All the 12 UR posts have already been filled up. Without disturbing someone, who has been W.A. No.587 of 2024 Page 61 of 92 appointed against the aforesaid 12 unreserved posts, relief as sought by the appellant could not have been granted to her. We concur with the view taken by the learned Single Judge relying on the Supreme Court's decision in case of Prabodh Verma (supra) [Prabodh Verma Vrs. State of U.P., reported in (1984) 4 SCC 251] that the writ petition deserved to be dismissed on the ground of non-joinder of necessary party alone. The Supreme Court's decision in case of Prabodh Verma (supra) has been consistently followed in subsequent decisions.
Illustratively, in case of All India SC & ST Employees' Association and another Vrs. A. Arthur Jeen and others, reported in (2001) 6 SCC 380, the Supreme Court has held in paragraph-13 as under:
―13. Although the candidates included in the panel showing their provisional selection do not get vested right to appointment, they will be surely interested in protecting and defending the select list. It is an admitted position that before the Tribunal the successful candidates whose names were included in the panel of selection were not made parties. The argument of the learned counsel that since the names and particulars of the successful candidates included in the panel were not given, they could not be made parties, has no force. The applicants before the Tribunal could have made efforts to get the particulars; at least they ought to have impleaded some of the successful candidates, maybe, in a representative capacity; if the large number of candidates were there and if there was any difficulty in service of notices on them, they could have taken appropriate steps to serve them by any W.A. No.587 of 2024 Page 62 of 92 one of the modes permissible in law with the leave of the Tribunal. This Court in Prabodh Verma Vrs. State of U.P., (1984) 4 SCC 251 = 1984 SCC (L&S) 704 has held that in writ petitions filed against the State questioning the validity of recruitment of a large number of persons in service could not be proceeded with to hear and take decision adverse to those affected persons without getting them or their representatives impleaded as parties. In para 50 of the said judgment, summarizing the conclusions this Court in regard to impleading of the respondents has stated that: (SCC pp.
288-89) ‗A High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High Court ought to dismiss the petition for non- joinder of necessary parties.'
13. In case of Ranjan Kumar and others Vrs. State of Bihar and others reported in (2014) 16 SCC 187, the Supreme Court has taken note of various precedents while holding that as the appointees were not impleaded, writ petition was defective and no relief could have been granted. The paragraps-4 to 13 of the said decision in case of Ranjan Kumar (supra) are being reproduced hereinbelow:
W.A. No.587 of 2024 Page 63 of 92‗4. On a perusal of the orders impugned, we find that only 40 persons were made respondents before the High Court and hardly a few appointees filed applications for intervention. It is well settled in law that no adverse order can be passed against persons who were not made parties to the litigation. In this context, we may refer with profit to the authority in Prabodh Verma Vrs. State of U.P., (1984) 4 SCC 251 = 1984 SCC (L&S) 704, wherein a three-Judge Bench was dealing with the constitutional validity of two Uttar Pradesh Ordinances which had been struck down by the Division Bench of the Allahabad High Court on the ground that the provisions therein were violative of Articles
14 and 16(1) of the Constitution of India. In that context, a question arose whether the termination of the services of the appellants and the petitioners therein as secondary school teachers and intermediate college lecturers following upon the High Court judgment was valid without making the said appointees as parties. The learned Judges observed that the writ petition filed by the Sangh suffered from two serious, though not incurable, defects; the core defect was that of non-joinder of necessary parties, for respondents to the Sangh's petition were the State of Uttar Pradesh and its officers concerned and those who were vitally concerned, namely, the reserve pool teachers, were not made parties-- not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents. Thereafter the Court ruled thus: (Prabodh Verma Vrs.
W.A. No.587 of 2024 Page 64 of 92State of U.P., (1984) 4 SCC 251 = 1984 SCC (L&S) 704, SCC pp. 273-74, para 28) ‗28. *** The matter, therefore, came to be decided in their absence. A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh's writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary parties.'
5. In the case at hand neither was any rule nor any regulation challenged. In fact, we have been apprised that at the time of selection and appointment there was no rule or regulation. A procedure used to be adopted by the administrative instructions. That apart, it was not a large body of appointees but only 182 appointees. Quite apart from that the persons who were impleaded, were not treated to be in the representative capacity. In this regard, it is profitable to refer to some authorities.
W.A. No.587 of 2024 Page 65 of 926. In Indu Shekhar Singh Vrs. State of U.P., (2006) 8 SCC 129 = 2006 SCC (L&S) 1916 it has been held thus: (SCC p. 151, para 56) ‗56. There is another aspect of the matter. The appellants herein were not joined as parties in the writ petition filed by the respondents. In their absence, the High Court could not have determined the question of inter se seniority.'
7. In Rashmi Mishra Vrs. M.P. Public Service Commission, (2006) 12 SCC 724 = (2007) 2 SCC (L&S) 345, after referring to Prabodh Verma Vrs. State of U.P., (1984) 4 SCC 251 = 1984 SCC (L&S) 704 and Indu Shekhar Singh Vrs. State of U.P., (2006) 8 SCC 129 = 2006 SCC (L&S) 1916, the Court took note of the fact that when no steps had been taken in terms of Order 1 Rule 8 of the Code of Civil Procedure or the principles analogous thereto all the seventeen selected candidates were necessary parties in the writ petition. It was further observed that the number of selected candidates was not many and there was no difficulty for the appellant to implead them as parties in the proceeding. Ultimately, the Court held that when all the selected candidates were not impleaded as parties to the writ petition, no relief could be granted to the appellant therein.
8. In Tridip Kumar Dingal Vrs. State of W.B., (2009) 1 SCC 768 = (2009) 2 SCC (L&S) 119, this Court approved the view expressed by the tribunal which had opined that for absence of selected and appointed candidates and W.A. No.587 of 2024 Page 66 of 92 without affording an opportunity of hearing to them, the selection could not be set aside.
9. In Public Service Commission Vrs. Mamta Bisht, (2010) 12 SCC 204 = (2011) 1 SCC (L&S) 208 this Court, while dealing with the concept of necessary parties and the effect of non- implementation of such a party in the matter when the selection process is assailed, observed thus: (SCC pp. 207-08, para 9) ‗9. *** in Udit Narain Singh Malpaharia Vrs.
Board of Revenue, AIR 1963 SC 786, wherein the Court has explained the distinction between necessary party, proper party and pro forma party and further held that if a person who is likely to suffer from the order of the court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter called ‗Code of Civil Procedure') provides that non- joinder of necessary party be fatal.
Undoubtedly, provisions of the Code of Civil Procedure are not applicable in writ jurisdiction by virtue of the provision of Section 141 of the Code of Civil Procedure but the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh Vrs. State of Gujarat, AIR 1965 SC 1153, Babubhai Muljibhai Patel Vrs.
Nandlal Khodidas Barot, (1974) 2 SCC 706 and Sarguja Transport Service Vrs.
W.A. No.587 of 2024 Page 67 of 92STAT, (1987) 1 SCC 5 = 1987 SCC (Cri)
19)'
10. In J.S. Yadav Vrs. State of U.P., (2011) 6 SCC 570 = (2011) 2 SCC (L&S) 140, it has been held that: (SCC p. 583, para 31) ‗31. No order can be passed behind the back of a person adversely affecting him and such an order, if passed, is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of natural justice.' It was further held that: (SCC p. 583, para 31) ‗31. *** The litigant has to ensure that the necessary party is before the court, be it a plaintiff or a defendant, otherwise the proceedings will have to fail. In service jurisprudence if an unsuccessful candidate challenges the selection process, he is bound to implead at least some of the successful candidates in representative capacity.'
11. In Vijay Kumar Kaul Vrs. Union of India, (2012) 7 SCC 610 = (2012) 2 SCC (L&S) 491 it has been ruled thus: (SCC p. 619, para 36) ‗36. Another aspect needs to be highlighted.
Neither before the Tribunal nor before the High Court, Parveen Kumar and others were arrayed as parties. There is no dispute over the factum that they are senior to the appellants and have been conferred the benefit of promotion to the higher posts. In their absence, if any W.A. No.587 of 2024 Page 68 of 92 direction is issued for fixation of seniority, that is likely to jeopardise their interest. When they have not been impleaded as parties such a relief is difficult to grant.'
12. Recently in State of Rajasthan Vrs. Ucchab Lal Chhanwal, (2014) 1 SCC 144 = (2014) 1 SCC (L&S) 34, it has been opined that: (SCC p. 149, para 14) ‗14. *** Despite the indefatigable effort, we are not persuaded to accept the aforesaid proponent, for once the respondents are promoted, the juniors who have been promoted earlier would become juniors in the promotional cadre, and they being not arrayed as parties in the lis, an adverse order cannot be passed against them as that would go against the basic tenet of the principles of natural justice.'
13. In view of the aforesaid enunciation of law, we are disposed to think that in such a case when all the appointees were not impleaded, the writ petition was defective and hence, no relief could have been granted to the writ petitioners.'
14. Similar view has been expressed in cases of Sanjay Prakash and others Vrs. Union of India and others, reported in (2021) 9 SCC 79 and Poonam Vrs. State of Uttar Pradesh and others, reported in (2016) 2 SCC 779.
15. Considering the judicial pronouncements as noted above, in our opinion, the learned Single Judge has rightly declined to entertain the appellant's writ W.A. No.587 of 2024 Page 69 of 92 petition for non-joinder of necessary parties, despite opportunity having been given to her to implead some of the appointed persons, even in their representative capacity.‖ 12.7. Under the aforesaid perspective, analysing the present matter, it would transpire that Dr. Archana Kanungo having not put forth proper pleading and impleaded necessary and proper parties to the proceeding, this Court is not inclined to entertain this writ appeal.
13. This Court on scrutiny of copy of "Application Form filled in for the Post of Assistant Professor in University, 2020"
(Annexure-3 enclosed to the writ petition) finds that in the column "Category applied", the appellant has mentioned "UNRESERVED (UR (W))". There is nothing on record to suggest that at any point of time the appellant had applied for consideration of reservation under Sportsperson category. Moreover, in the Advertisement being No.08 of 2020-21, dated 08.02.2021, there is no specification with respect to reservation in the category of "Sportsperson" nor is there any mention about reservation in respect of said category, viz., Women- Sportsperson.
13.1. Legal position regarding the intersection between the Vertical (social) and Horizontal (special) reservations and the steps for filling up of vacancies having regard to such horizontal and vertical reservations has been candidly dealt with by the Hon'ble Supreme Court of W.A. No.587 of 2024 Page 70 of 92 India in the case of Saurav Yadav Vrs. State of Uttar Pradesh, (2020) 11 SCR 281. It is set at rest that the candidates of the reserved categories can be selected under the unreserved category if they qualify the merit list and their selection will not be counted under their reserved category. The groups considered under the reserved categories cannot be excluded from the available seats for the open category or general category, just because they belong to the reserved category. If they qualify the merit they can be appointed under the open category. The opportunities to the public employment and selection of candidates must be purely based on merit, be it under the social or special reservation. The women of all the categories are entitled to be considered under the open category or general category. The open category is not a quota, but available to all women and men alike. The horizontal reservations are not carved on the stones and they are premised on their overlaps. They are actually the interlocking reservations. If a person belonging to an inter-section of the vertical-horizontal reserved category had secured scores high enough to qualify without the vertical reservation, the person would be counted as qualifying, and cannot be excluded from the horizontal quota in the general category. In the said reported case, it has been succinctly laid down as:
―33. However, if the horizontal reservation for women is to be taken as ―compartmentalised‖, as we are W.A. No.587 of 2024 Page 71 of 92 concerned in the present matter and the instant illustration, the appropriate steps must comprise of following:
33.1. Since the shortfall for women is of four seats in Open/General Category, last four male candidates, namely, those at Serial Nos. 46, 47, 48 and 49 initially allocated to Open/General Category, will have to be displaced. The candidate at Serial No. 50, being a woman, cannot be displaced.
33.2. The male candidates at Serial Nos. 46 and 47 being from Open/General Category, after such displacement will be completely out of reckoning as they cannot go to any reserved category.
33.3. The candidates at Serial Nos. 48 and 49 being more meritorious than the candidates originally placed in the vertical column of reservation for Scheduled Castes, must go back to their own vertical column.
This will cause resultant displacement of two candidates in that vertical column of reservation. The 20th candidate, whose overall merit position is at Serial No. 86, though a female, but being in excess of quota for Scheduled Castes female and a male candidate immediately above the 19th candidate will thus get displaced.
33.4. If we go by the second view, the female candidates at Serial Nos. 52, 64, 87 and 88 must be accommodated against Open General Category seats whereas the candidate at Serial No. 86, though more meritorious than those at Serial Nos. 87 and 88, must be left without any seat.
33.5. On the other hand, if we go by the first view, the claim of reserved category candidates if they are W.A. No.587 of 2024 Page 72 of 92 more meritorious, has to be considered, in which case the candidate at Serial No. 86 will be required to be accommodated. Resultantly, the candidate at Serial No. 88 must give way.
33.6. There can be various such permutations and combinations and in a given case, the female candidates concerned from reserved category in the waiting list for their respective vertical columns of reservation, may be more meritorious than the female candidates in the waiting list for Open/General category seats. The instant illustration is given to highlight the situation that can possibly emerge if the second view is adopted.
***
35. The observations in para 18 in Anil Kumar Gupta Vrs. State of U.P., (1995) 5 SCC 173 contemplated a situation where if ―special reservation candidates‖ entitled to horizontal reservation are to be adjusted in a vertical column meant for ―social reservation‖, the corresponding number of candidates from such ―social reservation category‖ ought to be deleted. It did not postulate that at the stage of making ―special or horizontal reservation‖ a candidate belonging to any of the ―social reservation categories‖ cannot be considered in Open/General Category. It is true that if the consideration for accommodation at horizontal reservation stage is only with regard to the vertical reservation concerned or social reservation category, the candidates belonging to that category alone must be considered. For example, if horizontal reservation is to be applied with regard to any of the categories of Scheduled Castes, Scheduled Tribes or Other Backward Classes, only those candidates answering that description alone can be considered W.A. No.587 of 2024 Page 73 of 92 at the stage of horizontal reservation. But it is completely different thing to say that if at the stage of horizontal reservation, accommodation is to be considered against Open/General seats, the candidates coming from any of the reserved categories who are more meritorious must be sidelined. That was never the intent of the observations sought to be relied upon in support of the second view.
***
38. The second view is thus neither based on any authoritative pronouncement by this Court nor does it lead to a situation where the merit is given precedence. Subject to any permissible reservations i.e. either social (vertical) or special (horizontal), opportunities to public employment and selection of candidates must purely be based on merit. Any selection which results in candidates getting selected against Open/General category with less merit than the other available candidates will certainly be opposed to principles of equality. There can be special dispensation when it comes to candidates being considered against seats or quota meant for reserved categories and in theory it is possible that a more meritorious candidate coming from Open/General category may not get selected. But the converse can never be true and will be opposed to the very basic principles which have all the while been accepted by this Court. Any view or process of interpretation which will lead to incongruity as highlighted earlier, must be rejected.‖ 13.2. In Saurav Yadav (supra) the Hon'ble Supreme Court approved the following view of different High Courts:
W.A. No.587 of 2024 Page 74 of 92―20. *** D) In Tamannaben Ashokbhai Desai vs. Shital Amrutlal Nishar, R/LPA No.1910 of 2019 in R/Special Civil Application No.18968 of 2018 etc. decided on 05.08.2020, the High Court of Gujarat considered the decisions on the point including some of those rendered by the High Courts of Rajasthan, Bombay and Uttarakhand as stated above and observed as under:
‗45. The above referred case law can be better explained by way of the following illustration based on the factual position obtaining in the present case.
46. There are 115 posts of Police Inspector (unarmed), out of which 55 posts are reserved for the SC, ST and SEBC and remaining 60 posts for open/general category. Out of the said posts, 33% are reserved for women under each category, meaning thereby, out of 60 posts in the open category, 20 posts are reserved for women. Thus, the first step would be that of preparing the entire list on the basis of merit and out of the same, selecting first 60 candidates, irrespective of their caste and sex, in open category. The second step would be then of evaluating as to whether 20 women, irrespective of their caste, are there within those 60 candidates, so as to meet with the requirement of horizontal reservation. If 20 women are already there, then there is no need to select any more woman in that category, but if not, then in the third step, the remaining number of women have to be included on the basis of the merit from the aforesaid list, W.A. No.587 of 2024 Page 75 of 92 irrespective of their caste, 29 R/LPA No.1910 of 2019 in R/Special Civil Application No.18968 of 2018 etc. decided on 05.08.2020 41 while deleting the corresponding number of male candidates from the bottom of the list of first 60 candidates. Thereafter, identical exercise is required to be undertaken for implementing vertical reservation, followed by horizontal reservation, with respect to the posts belonging to the SEBC, SC and ST categories.
***
49. It is pertinent to note that Rule 2(d) seeks to carve out a fourth category of posts, not being posts reserved in favour of the Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes. In other words, this fourth category is nothing but an Open category of posts, excluding the posts reserved in favour of the above referred classes i.e. the posts reserved for women in open category would be over and above the posts reserved for women in SC, ST and SEBC quota, as referred to in Rule 2(a), 2(b) and 2(c) of the said Rules. Thus, all the meritorious candidates, whether belonging to the reserved category or unreserved category, will be covered by the category, irrespective of their caste, community or tribe where merit alone will be taken into account, while implementing vertical reservation as well as horizontal reservation within the same. It may be noted that by virtue of the Gujarat Civil Services (Reservation of Posts for Women) (Amendment) Rules, 2014, the requirement of reservation in W.A. No.587 of 2024 Page 76 of 92 favour of women came to be enhanced from 30% to 33%.
50. In view of the aforesaid discussion, we have no hesitation in arriving to the conclusion that the Government Resolution dated 01.08.2018 of the GAD deserves to be quashed and set aside, and is hereby quashed and set aside.
The High Court then laid down:
56. For the future guidance of the State Government, we would like to explain the proper and correct method of implementing horizontal reservation for women in a more lucid manner.
―PROPER AND CORRECT METHOD OF
IMPLEMETING HORIZONTAL RESERVATION
FOR WOMEN.
No. of posts available
for recruitment. ..... 100
Social Reservation quota (49%)
Open Competition (OC) ..... 51
Scheduled Caste (SC ) .....12
Scheduled Tribe (ST) .....17
Socially and Educationally
Backward Classes (SEBC) .....20
Horizontal Reservation for Women
(33% in each of the above categories)
OC .....17
W.A. No.587 of 2024 Page 77 of 92
SC ....04
ST ....06
SEBC ....07
Step 1: Draw up a list of at least 100 candidates
(usually a list of more than 100 candidates is prepared so that there is no shortfall of appointees when some candidates don't join after offer) qualified to be selected in the order of merit. This list will contain the candidates belonging to all the aforesaid categories.
Step 2: From the aforesaid Step 1 List, draw up a list of the first 51 candidates to fill up the OC quota (51) on the basis of merit. This list of 51 candidates may include the candidates belonging to SC, ST and SEBC.
Step 3: Do a check for horizontal reservation in OC quota. In the Step 2 List of OC category, if there are 17 women (category does not matter), women's quota of 33% is fulfilled. Nothing more is to be done. If there is a shortfall of women (say, only 10 women are available in the Step 2 List of OC category), 7 more women have to be added. The way to do this is to, first, delete the last 7 male candidates of the Step 2 List. Thereafter, go 43 down the Step 1 List after item no. 51, and pick the first 7 women (category does not matter). As soon as 7 such women from Step 1 List are found, they are to be brought up and added to the Step 2 List to make up for the shortfall of 7 women. Now, the 33% quota for OC women is fulfilled. List of OC W.A. No.587 of 2024 Page 78 of 92 category is to be locked. Step 2 List list becomes final.
Step 4: Move over to SCs. From the Step 1 List, after item no. 51, draw up a list of 12 SC candidates (male or female). These 12 would also include all male SC candidates who got deleted from the Step 2 List to make up for the shortfall of women.
Step 5: Do a check for horizontal reservation in the Step 4 List of SCs. If there are 4 SC women, the quota of 33% is complete. Nothing more is to be done. If there is a shortfall of SC women (say, only 2 women are available), 2 more women have to be added. The way to do this is to, first, delete the last 2 male SC candidates of the Step 4 List and then to go down the Step 1 List after item no. 51, and pick the first 2 SC women. As soon as 2 such SC women in Step 1 List are found, they are to be brought up and added to the Step 4 List of SCs to make up for the shortfall of SC women. Now, the 33% quota for SC women is fulfilled. List of SCs is to be locked. Step 4 List becomes final. If 2 SC women cannot be found till the last number in the Step 1 List, these 2 vacancies are to be filled up by SC men. If in case, SC men are also wanting, the social reservation quota of SC is to be carried forward to the next recruitment unless there is a rule which permits conversion of SC quota to OC.
Step 6: Repeat steps 4 and 5 for preparing list of STs.
W.A. No.587 of 2024 Page 79 of 92Step 7: Repeat steps 4 and 5 for preparing list of SEBCs.
57. The State Government as well as the GPSC shall, for all times to come, bear in mind that the effect of horizontal reservation, being provided under each category, is that it 44 is only women, who belong to the Other Backward Classes, who can compete for the posts reserved for Other Backward Classes (Women) and not women who belong to the Scheduled Castes, the Scheduled Tribes and the unreserved category. Likewise, it is only women belonging to the Scheduled Castes and the Scheduled Tribes who can compete for the posts horizontally reserved in favour of Scheduled Castes (Women) and Scheduled Tribes (Women). A woman, not belonging to the reserved category (OBC, SC and ST), is not entitled to compete for posts reserved in favour of Other Backward Classes (Women), Scheduled Castes (Women) and Scheduled Tribes (Women).
58. The converse, however, is not true. All women, irrespective of whether they belong, or do not belong, to the reserved category are entitled to compete for posts earmarked in favour of women under the General Category. There is no reservation for posts in the General Category, and horizontal reservation in favour of women in the General Category is available to be filled up from amongst all women irrespective of their caste status. The posts, reserved in favour of General Category (Women), are available for all women from the W.A. No.587 of 2024 Page 80 of 92 State of Gujarat, and that would include women belonging to the reserved categories such as OBCs, SCs and STs, and women who do not. Holding otherwise, would result in surreptitious introduction of reservation in favour of those who do not belong to the socially and educationally backward classes, and a disguised attempt at communal reservation has been frowned upon by the Supreme Court in The State of Madras Vrs. Sm. Champakam Dorairajan and another : AIR 1951 SC 226.' ***
36. Finally, we must say that the steps indicated by the High Court of Gujarat in para 56 of its judgment in Tamannaben Ashokbhai Desai29 contemplate the correct and appropriate procedure for considering and giving effect to both vertical and horizontal reservations. The illustration 63 given by us deals with only one possible dimension. There could be multiple such possibilities. Even going by the present illustration, the first female candidate allocated in the vertical column for Scheduled Tribes may have secured higher position than the candidate at Serial No.64. In that event said candidate must be shifted from the category of Scheduled Tribes to Open / General category causing a resultant vacancy in the vertical column of Scheduled Tribes. Such vacancy must then enure to the benefit of the candidate in the Waiting List for Scheduled Tribes - Female. The steps indicated by Gujarat High Court will take care of every such possibility. It is true that the exercise of laying down a procedure must necessarily be left to the concerned authorities W.A. No.587 of 2024 Page 81 of 92 but we may observe that one set out in said judgment will certainly satisfy all claims and will not lead to any incongruity as highlighted by us in the preceding paragraphs.‖ 13.3. This intra-Court appeal as has already been remarked is directed against Judgment dated 13.03.2024 of the learned Single Judge of this Court, wherewith subject matter of challenge was Order dated 20.12.2022 of the Government of Odisha in Department of Higher Education. In response to the prayer made by the appellant for a direction to the opposite parties to consider selection and/or appointment in the post of Assistant Professor in the discipline "Sociology" with reference to Resolution dated 11th December, 2014 read with Clarification dated 19.01.2021 of the General Administration Department, it is clear stance of the opponents that, i. Pursuant to requisition submitted by the Higher Education Department, the Odisha Public Service Commission has floated Advertisement No.08 of 2020-21 for recruitment to the posts of Assistant Professors in different State Public Universities under the administrative control of the Higher Education Department. In the said requisition, the reservation principles laid in the Odisha Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 W.A. No.587 of 2024 Page 82 of 92 and the Odisha Civil Services (Reservation of Vacancies for Women in Public Services) Rules, 1994 have been taken into consideration.
ii. The post of Assistant Professor in a State Public University is a Group-A equivalent post and no vacancy has been earmarked for the candidates under the "Sportsperson" category. The appellant has offered her candidature for the said post being conscious of available reservation in the categories of ST-2, SC-2, SEBC-2 and UR-9 (5W), having 15 vacancies in toto.
iii. The appellant was found unsuitable in the interview being placed at Serial No.59 in the select list having secured only 15 marks out of 100 marks. The OPSC has reported that the appellant could not secure cut-off marks in the interview and as a result of which she was not selected in the recruitment process.
iv. It is the stand of the OPSC before the writ Court that out of fifteen vacancies notified in the Advertisement, after twelve names being sponsored, there remained three vacancies which are against reserved category, viz., SEBC, ST and SC. The appellant having filled up application form under unreserved category, and having not secured requisite marks on account of performance in the W.A. No.587 of 2024 Page 83 of 92 interview, she cannot be said to be eligible for the post of Assistant Professor in the discipline "Sociology".
13.4. By way of written note of arguments, Dr. Archana Kanungo has raised objection against fixation of cut-off marks and submitted that in the Advertisement dated 08.02.2021 no cut-off mark was prescribed. Notwithstanding that the appellant has been stated to have secured 15 marks out of 100 marks vide paragraph 7.1 of the Judgment dated 13.03.2024 of the learned Single Judge, the same could not disqualify the appellant from being considered for the post of Assistant Professor in Sociology.
13.5. At this stage reference to paragraph 7 of the Additional counter affidavit dated 09.02.2024 of the OPSC is relevant:
―That, it is relevant to submit that the fixation of any cut- off mark in advance for the purpose of short listing candidates by the recruiting authority like the OPSC is not necessary to be notified in the advertisement. The minimum threshold, which is the minimum cut-off mark is fixed, so as to select most meritorious candidates in order to maintain their best possible future academic contribution. Such provisions has also been provided and disclosed particularly under Sub-Para 5 of Para-6 (Method of Selection) in the Advertisement vide Annexure-1 of the Writ Petition, which is within the competency of the Commission, for short-listing of the candidates for interview and the selection shall be based only on the W.A. No.587 of 2024 Page 84 of 92 performance in the interview and academic score. The outstanding performance demonstrated in academic qualification as reflected in the certificates is not the only basis of selection, unless the performance in the interview is found satisfactory up to a particular standard in comparison with other candidates facing interview.‖ 13.6. Such stand does find support from Jharkhand Public Service Commission Vrs. Manoj Kumar Gupta, (2019) 18 SCR 984, wherein it has been observed as follows:
―7. As far as the finding of the High Court that the rules of the game were changed after the selection process had started, we are of the considered view that this is not the case as far as the present case is concerned. There were no minimum marks provided for Paper III in the advertisement. This could be done by the moderation committee even at a later stage. This is not a change brought about but an additional aspect brought in while determining the merit of the candidates who are found fit to be eligible for consideration for appointment of Lecturers.‖ 13.7. In Union of India Vrs. S. Vinodh Kumar, (2007) 8 SCC 100 it has been stated as follows:
―13. Even assuming that the appellants should have filled up the unfilled vacancies meant for the reserved category candidates by the general candidates, but then for the said purpose, the general candidates were required to fulfill the eligibility clause including the cut-off marks fixed therefor. Respondents admittedly did not do so. The High Court, in our opinion, committed a serious error W.A. No.587 of 2024 Page 85 of 92 in directing the appellants to lower the cut-off marks. The cut-off mark 20 was fixed for the Scheduled Caste and Schedule Tribe candidates. The same was not meant to be applied to the general category candidates. The jurisdiction of the appellants to fix different cut-off marks for different category of candidates has never been questioned and in that view of the matter only because the Railway Board had issued a circular as far back as in the year 1976 to fill up the vacancies by unreserved candidates in the event the reserved category of candidates was not available therefor, in our opinion, the same would not mean that irrespective of the qualification and performance of general category candidates they were entitled to be appointed.
14. It is now a well-settled principle of law that even wait-listed candidates have no legal right to be appointed. [See Ashwani Kumar Singh Vrs. U.P. Public Service Commission and Others, (2003) 11 SCC 584 and State of Rajasthan Vrs. Jagdish Chopra, 2007 (10) SCALE 470.
15. It was for the appellant to decide as to whether the posts were to be dereserved or carried forwarded. [See Rajasthan Public Service Commission and Another etc. Vrs. Harish Kumar Purohit and Others etc. (2003) 5 SCC 480].‖ 13.8. Under the above circumstance, the learned Single Judge appears to have committed no error apparent on the face of the record.
SCOPE OF INTERFERENCE WITH THE JUDGMENT OF THE LEARNED SINGLE JUDGE IN WRIT APPEAL:
W.A. No.587 of 2024 Page 86 of 9214. This Court, in the aforesaid emerging factual matrix, does not feel expedient to delve into the matter in detail any further to upset the Judgment of the learned Single Judge delivered in exercise of extraordinary jurisdiction under Article 226/227 of the Constitution of India by dismissing the writ petition. It is not appropriate to re- appreciate evidence and substitute different view than what has been expressed by the learned Single Judge, while sitting in this jurisdiction of intra-Court appeal under Article 4 of the Orissa High Court Order, 1948 read with Clause 10 of the Letters Patent constituting the High Court of Judicature at Patna and Rule 6 of Chapter-III and Rule 2 of Chapter-VIII of the Rules of the High Court of Orissa, 1948 for consideration.
14.1. The Hon'ble Supreme Court of India in the case of N. Ramachandra Reddy Vrs. State of Telengana, (2019) 11 SCR 792 delineated the scope of intra-Court appeals by making following observation:
―43. Further, in the case of Management of Narendra & Company Pvt. Ltd. Vrs. Workmen of Narendra & Company, (2016) 3 SCC 340, while considering the scope of the intra-Court appeal, this Court has held that, unless Appellate Bench concludes that findings of the learned Single Judge are perverse, it shall not disturb the same.‖ 14.2. In Management of Narendra & Company Pvt. Ltd. Vrs.
Workmen of Narendra & Company, (2016) 3 SCC 340 it has been observed as follows:
W.A. No.587 of 2024 Page 87 of 92―Be that as it may, in an intra-Court appeal, on a finding of fact, unless the appellate Bench reaches a conclusion that the finding of the Single Bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by the Single Judge, unless both sides agree for a fairer approach on relief.‖ 14.3. In Wander Ltd. Vrs. Antox India (P) Ltd., 1990 Supp. SCC 727 following is the observation:
―14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's W.A. No.587 of 2024 Page 88 of 92 exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. Vrs. Pothan Joseph, (1960) 3 SCR 713 = AIR 1960 SC 1156: (SCR 721) ―*** These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. Vrs. Jhanaton,1942 AC 130:
‗*** the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case'. ***‖ 14.4. In Anindita Mohanty Vrs. The Senior Regional Manager, H.P. Co. Ltd., Bhubaneswar, 2020 (II) ILR-CUT 398 this Court had the occasion to examine the scope of intra-
Court appeal and observed as follows:
―*** Let us first examine the power of the Division Bench while entertaining a Letters Patent appeal against the judgment/order of the Single Judge. This writ appeal has been nomenclatured as an application under Article 4 of the Orissa High Court Order, 1948 read with clause 10 of the Letters Patent Act, 1992. Letters Patent of the Patna High Court has been made applicable to this Court by virtue of Orissa High Court Order, 1948. Letters Patent Appeal is an intra-Court appeal where under the Letters Patent Bench, sitting as a Court of Correction, corrects its own orders in exercise of the same jurisdiction as vested in the Single Bench. (Ref: (1996) 3 Supreme Court Cases 52, Baddula Lakshmaiah Vrs. Shri Anjaneya Swami Temple). The Division Bench in Letters Patent Appeal should not disturb the finding of fact arrived at by the learned Single Judge of the Court unless it is shown to be W.A. No.587 of 2024 Page 89 of 92 based on no evidence, perverse, palpably unreasonable or inconsistent with any particular position in law. This scope of interference is within a narrow compass. Appellate jurisdiction under Letters Patent is really a corrective jurisdiction and it is used rarely only to correct errors, if any made.
In the case of B. Venkatamuni Vrs. C.J. Ayodhya Ram Singh reported in (2006) 13 Supreme Court Cases 449, it is held that in an intra-Court appeal, the Division Bench undoubtedly may be entitled to reappraise both questions of fact and law, but entertainment of a letters patent appeal is discretionary and normally the Division Bench would not, unless there exist cogent reasons, differ from a finding of fact arrived at by the Single Judge. Even a Court of first appeal which is the final Court of appeal on fact may have to exercise some amount of restraint. Similar view was taken in the case of Umabai Vrs. Nilkanth Dhondiba Chavan reported in (2005) 6 Supreme Court Cases 243. In the case of Commissioner of Income Tax Vrs. Karnataka Planters Coffee Curing Work Private Limited reported in (2016) 9 Supreme Court Cases 538, it is held that the jurisdiction of the Division Bench in a writ appeal is primarily one of adjudication of questions of law. Findings of fact recorded concurrently by the authorities under the Act concerned (Income Tax Act) and also in the first round of the writ proceedings by the learned Single Judge are not to be lightly disturbed. Thus a writ appeal is an appeal on principle where the legality and validity of the judgment and/or order of the Single Judge is tested and it can be set aside only when there is a patent error on the face of the record or the judgment is against established or settled principle of law. If two views are possible and a view, which is reasonable and logical, has been adopted by a Single Judge, the other view, howsoever appealing may be to the Division Bench;W.A. No.587 of 2024 Page 90 of 92
it is the view adopted by the Single Judge, which would, normally be allowed to prevail. If the discretion has been exercised by the Single Judge in good faith and after giving due weight to relevant matters and without being swayed away by irrelevant matters and if two views are possible on the question, then also the Division Bench in writ appeal should not interfere, even though it would have exercised its discretion in a different manner, were the case come initially before it. The exercise of discretion by the Single Judge should manifestly be wrong which would then give scope of interference to the Division Bench.‖ 14.5. This Court is, therefore, of the considered opinion that the present writ appeal does not warrant interference in the decision of the learned Single Judge in the teeth of aforesaid enunciation of law.
CONCLUSION:
15. In view of above discussion on the facts as also the proposition of law, the learned Single Judge, having elaborately discussed the factual matrix with well- reasoned Judgment taking into account enunciation of well-settled principles by the Courts, the decision rendered in W.P.(C) No.7280 of 2023 vide Judgment dated 13.03.2024, cannot be faulted with so as to warrant interference in exercise of powers under Article 4 of the Orissa High Court Order, 1948 read with Clause 10 of the Letters Patent constituting the High Court of Judicature at Patna and Rule 6 of Chapter-III and Rule 2 W.A. No.587 of 2024 Page 91 of 92 of Chapter-VIII of the Rules of the High Court of Orissa, 1948.
16. The learned Single Judge, therefore, has rightly declined to allow the writ petition filed at the behest of the appellant. Keeping abreast of the scope of intra-Court appeal as propounded by the Hon'ble Supreme Court as well as this Court, for the reasons stated in the foregoing paragraphs, no infirmity in the decision of the learned Single Judge vide Judgment dated 13.03.2024 is perceived and, therefore, this Court declines to show indulgence in this writ appeal.
17. In fine, this writ appeal, being sans merit, stands dismissed, but in the circumstances, there shall be no order as to costs.
(MURAHARI SRI RAMAN) JUDGE CHAKRADHARI SHARAN SINGH, CJ.-- I agree.
(CHAKRADHARI SHARAN SINGH) CHIEF JUSTICE Signature Not Verified Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-May-2024 18:20:32 Orissa High Court, Cuttack The 15th May, 2024//Aswini/MRS/Laxmikant W.A. No.587 of 2024 Page 92 of 92