Orissa High Court
Paritosh Tripathy vs State Of Odisha And Another on 18 August, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P. (C) No. 24508 of 2021
Paritosh Tripathy ..... Petitioner
Mr. L. Sarangi, Advocate
Vs.
State of Odisha and another ..... Opposite parties
Mr. S.K. Pattnaik, Sr. Advocate
along with Mr. P.K. Pattnaik, Adv.
CORAM:
DR. JUSTICE B.R. SARANGI
ORDER
18.08.2021
Order No. This matter is taken up by hybrid mode.
2. Heard Mr. L. Sarangi, learned counsel for the petitioner
and Mr. S.K. Pattnaik, Sr. Counsel appearing along with Mr. P.K.
Pattnaik, learned counsel for the opposite parties.
3. The petitioner has filed this writ petition seeking to
quash the notice dated 12.08.2021 issued by the authority under
Annexure-12, by which a select list of 58 candidates has been
published.
4. Mr. L. Sarangi, learned counsel for the petitioner argued
with vehemence contending that an advertisement was issued by the
authority in Annexure-1, and so far as the post of Junior Accountant
(Accounts Assistant)/Auditor is concerned, total nos. of 58
vacancies have been indicated in the advertisement itself, out of
which unreserved-25, and reserved category such as, SC, ST and
SEBC are 8, 15 and 10 respectively. Thereby, the reservation
exceeds more than 50%, which is contrary to the judgment of the
apex Court. It is further contended that though the petitioner was
called upon to produce the documents for verification, after being
successful in written and viva-voce test, but his name did not find
place in the select list. Therefore, the petitioner has approached this
Court by filing the present writ petition challenging the
advertisement, as the reservation exceeds more than 50%.
5. Mr. S.K. Pattnaik, learned Sr. Counsel appearing along
with Mr. P.K. Pattnaik, learned counsel for the opposite parties
raised preliminary objection stating inter alia that the writ petition is
not maintainable, in view of the fact that the petitioner has
challenged the select list of 58 candidates pursuant to notice dated
12.08.2021 under Annexure-12 and, as such, the selected candidates
have not been made as parties to the writ petition. It is further
contended that the petitioner, having participated in the process of
selection and having not successful, at his instance, the challenge
made to the reservation itself, cannot sustain. It is further contended
that the advertisement issued under Annexure-1 includes the
backlog vacancies of previous year and, thereby, as per Article 16
(4B) of the Constitution of India, 50% reservation of unreserved
category is not applicable. Consequentially, he seeks for dismissal of
the writ petition.
6. Having heard learned counsel for the parties and after
going through the records, admittedly an advertisement was issued
by the opposite parties for filling up of the vacancies of 58 posts of
Junior Accountant (Accounts Assistant)/Auditor, out of which, 25
posts are reserved for UR category, whereas for reserved category,
such as, SC, ST and SEBC, they have been allotted 8, 15 and 10
respectively in toto 33 posts and, more so, the reserved category post
exceeds more than 50%. But an argument is advanced that those
vacancies were of the previous year and carried forwarded to this
year, as per the provisions contained under Article 16 (4B) of the
Constitution of India, therefore 50% reservation principle, so far as
UR category is concerned, is not applicable to the present case.
Further, the contention raised by learned Senior Counsel appearing
for the opposite parties with regard to the fact that the petitioner
having challenged the select list of 58 candidates under Annexure-12
and, as such, they have not been impleaded as parties to writ
petition, on that count also, the writ petition suffers from non-joinder
of proper parties and is liable to be dismissed. The last but not least,
it is contended by learned Sr. Counsel appearing for the opposite
parties that knowing fully well the advertisement issued by the
authority under Annexure-1, the petitioner having participated in the
process of selection and not come out successful, the writ petition, at
his behest, cannot sustain. Reliance has also been placed on the
judgment of the apex Court in the case of State of Tamil Nadu and
others v. K. Shobana, AIR 2021 SC 1267, wherein the apex Court
held that backlog vacancies have to be filled in first and the current
vacancies to be filled in thereafter. In that view of the matter, if the
vacancies have been carried forwarded and on that basis, it exceeds
50% quota, it cannot be said that illegality has been committed by
the authority concerned. As such, to substantiate the contention,
reliance has also been placed by the learned Sr. Counsel for the
opposite parties for recruitment of different posts in the Corporation,
vide letter dated 10.01.2020, by which it has been indicated how the
posts have been determined by taking into consideration the
previous year backlog vacancies to the current year. Thereby, in
view of the provisions contained under Article 16 (4B) of the
Constitution of India, the reservation so far as 50% for unreserved
category is concerned, is not applicable to the present case.
7. This Court has not disputed the law laid down by the
apex Court in the case of Indira Sawhney Vs. Union of India, 1992
(Suppl) 3, SCC 217, that reservation should not exceed 50%, which
was also been confirmed in catena of judgments. But fact remains,
reserved vacancies of a particular recruitment year should not
exceed 50% and, as such, when backlog vacancies of previous year
would be taken into consideration, in that case, the reservation
policy of 50% may not be applicable.
8. In such view of the matter, this Court does not find any
merit in this writ petition and the same is thus dismissed.
Ashok (DR. B.R. SARANGI)
JUDGE
