Orissa High Court

Afr Dr. Deepak Kumar Samal & vs State Of Odisha & Anr on 22 December, 2021

                  ORISSA HIGH COURT: CUTTACK


                       W.P.(C) NO. 38690 OF 2021

        In the matter of an application under Articles 226 and
        227 of the Constitution of India.
                              ---------------

AFR    Dr. Deepak Kumar Samal &
       Ors.                                       .....      Petitioners


                                      -Versus-

        State of Odisha & Anr.                   .....     Opp. Parties


           For Petitioners :     M/s. A. Mishra & Mr. R.K. Jena,
                                 Advocates

          For Opp. Parties :     Mr. B.P. Tripathy,
                                 Addl. Govt. Advocate
                                 (O.P. 1)

        P R E S E N T:

           THE HONOURABLE DR. JUSTICE B.R.SARANGI

                         DECIDED ON :: 22.12.2021



DR. B.R. SARANGI, J.       The petitioners, who are 173 number un-

reserved category doctors, have filed this writ petition seeking

direction to opposite party no.1 to de-reserve the carried

forward reserved SC & ST posts of Medical Officers (Asst.

// 2 //

Surgeon) in Group-A (Junior Branch) of Odisha Medical and

Health Services cadre, which are not being filled up even for

consecutive three recruitment years, as per section 7 of ORV

Act, 1975, and they further seek direction to the opposite parties

to keep in abeyance the selection process pursuant to

advertisement no.17 of 2021-22 in Annexure-6 issued by

opposite party no.2 till opposite party no.1 makes such de-

reservation.

2. The facts of the case, in brief, are that Odisha

Public Service Commission (OPSC) issued advertisement

No.18 of 2015-16 for recruitment of 372 posts of Medical

Officers (Assistant Surgeons) in Group-A of the Odisha

Medical & Health Services Cadre under the Health and Family

Welfare Department, which included 186 posts for unreserved

category, 60 posts for SC category and 84 posts for ST

category. Pursuant to selection, OPSC recommended the names

of 186 candidates from unreserved category, 60 candidates from

SC category and 75 candidates from ST category for // 3 //

appointment. Therefore, 9 posts from ST category remained

unfilled.

2.1. Similarly, OPSC issued advertisement No.07 of

2016-17 for recruitment of 808 posts of Medical Officers

(Assistant Surgeons) in Group-A (Junior Branch) of the Odisha

Medical & Health Services Cadre under the Health and Family

Welfare Department, wherein 404 posts were for unreserved

category, 131 posts were for SC category and 182 posts were

for ST category. Pursuant to selection, OPSC recommended the

names of 404 candidates from urreserved category, 40

candidates from SC category and 739 posts from ST category

and therefore, 91 posts from SC category and 143 posts from

ST category remained unfilled.

2.2. Further, OPSC vide advertisement no.12 of 2017-18

advertised 2173 posts of Medical Officers (Assistant Surgeons)

in Group-A (Junior Branch) of the Odisha Medical & Health

Services Cadre under Health and Family Welfare Department

where 1062 posts were for unreserved category, 445 posts were // 4 //

for Scheduled Caste category and 666 posts were for ST

category, but OPSC recommended the names of 447 unreserved

category candidates, 22 SC candidates and 14 ST candidates for

appointment and 423 posts from SC category and 652 posts

from ST category remained vacant.

2.3. Thereafter, OPSC vide Advertisement no.18 of

2018-19 advertised 1950 posts of Medical Officers (Assistant

Surgeons) in Group-A (Junior Branch) of the Odisha Medical &

Health Services Cadre under Health and Family Welfare

Department wherein 838 posts were for unreserved category,

435 posts were for SC category and 677 posts were for ST

category. After the selection process was over, OPSC

recommended the names of 838 unreserved candidates, 41 SC

candidates and 59 ST candidates for appointment and 394 posts

from SC category and 818 posts from ST category could not be

filled up due to non-availability of candidates in the respective

categories.

// 5 //

2.4. Then, OPSC vide advertisement no.13 of 2019-20

advertised 3278 posts of Medical Officers (Assistant Surgeons)

in Group-A (Junior Branch) of the Odisha Medical & Health

Services Cadre under Health and Family Welfare Department

wherein 1358 posts were for unreserved category, 709 posts

were for SC category and 1075 posts were for ST category.

After the selection process was over, OPSC recommended the

names of 1107 candidates from UR category, 82 candidates

from SC category and 56 candidates from ST category and

therefore 627 posts from SC category and 1019 posts from ST

category remained vacant.

2.5. Thereafter, OPSC vide advertisement no.9 of 2020-

21 advertised 2452 posts of Medical Officers (Assistant

Surgeons) in Group-A (Junior Branch) of the Odisha Medical &

Health Services Cadre under Health and Family Welfare

Department where 633 posts were for unreserved category, 653

posts were for SC category and 1042 posts were for ST

category. Pursuant to selection made, OPSC recommended the

names of 633 candidates from unreserved category, 52 // 6 //

candidates from SC category and 35 candidates from ST

category for appointment and in this process, 601 posts from SC

category and 1007 posts from ST category remained vacant.

2.6. Subsequently, OPSC vide advertisement no.17 of

2021-22 advertised 1586 posts of Medical Officers (Assistant

Surgeons) in Group-A (Junior Branch) of the Odisha Medical &

Health Services Cadre under the Health and Family Welfare

Department on special drive, where 585 posts were for SC

category and 1001 posts were for ST category. Pursuant to said

advertisement, only 154 candidates applied for, out of which

132 candidates were called for document verification after

which the candidature of 47 candidates were cancelled for

different reasons and finally out of 1586 posts advertised, only

81 candidates were selected and their names were

recommended for appointment. Hence this application.

3. Mr. A. Mishra, learned counsel for the petitioners

contended that as per Section-7 of Orissa Reservation of

Vacancies in Posts and Services (for Scheduled Castes & // 7 //

Scheduled Tribes) Act, 1975, in any case of direct recruitment,

if in any recruitment year, the number of candidates either

belonging to Scheduled Castes or Scheduled Tribes is less than

the number of posts reserved for them or such candidates are

not available even after making special recruitment drive, those

posts are to be left unfilled for a maximum period of three

subsequent recruitment years, if candidates belonging to

reserved category are not available during such period and,

thereafter, if such posts still remain unfilled, those posts shall be

filled up by candidates belonging to unreserved category after

de-reserving in the prescribed manner. It is also contended that

even though the Government have been taking the plea that

there is dearth of doctors in the State of Odisha, for which they

have introduced 2 years post PG mandatory services for the

doctors, who get admitted in any government medical college in

the State, and in the process are not allowing them to go for

higher studies as well as to work anywhere as per their choice

after completion of PG, but, as is evident from the present case,

the Government have allowed huge number of posts to remain // 8 //

vacant instead of filling up of the same by de-reserving the

posts by complying Section 7 of ORV Act, 1975. It is further

contended that in the interest of justice, equity and fair play, if

the Government will take necessary steps for de-reservation of

posts meant for the SC & ST candidates, which are lying vacant

for years together, the dearth of doctors in the State will be

mitigated partially. It is further contended that there are 1505

posts of Medical Officers lying vacant due to non-availability of

SC & ST candidates. Though the candidates like the petitioners

are interested to work in the said posts remaining within the

State after completion of their MBBS course, the Government

have not taken any steps to allow them to work and always

taken a plea that there is dearth of doctors in the State. Thereby,

it is contended that the interest of justice would be best served if

the posts reserved for the SC & ST category candidates, which

are not been filled up for more than three consecutive

recruitment years, are filled up by the unreserved category

candidates by complying the provisions of Section 7 of the

ORV Act, 1975. It is further contended that starting from // 9 //

advertisement no.18 of 2015-16 till date, the reserve vacancies

available for SC & ST categories candidates have not been

filled up. Since those vacancies are being carried forward to

next recruitment year or in the next advertisement right from the

year 2015-16, without de-reserving the said posts, the same is in

violation of Section 7 of the ORV Act, 1975.

4. Mr. B.P. Tripathy, learned Additional Government

Advocate contended that the petitioners, who claim for de-

reservation of SC & ST posts, cannot seek issuance of writ of

mandamus therefor. As such, no writ of mandamus can be

issued at their instance for de-reservation of posts by this Court.

In support of his contentions, he has relied upon the judgment

of the apex Court in State of Punjab & Ors v. G.S. Gill and

another, (1997) 6 SCC 129.

5. This Court heard Mr. A. Mishra, learned counsel

for the petitioners and Mr. B.P. Tripathy, learned counsel

appearing for the opposite parties-State. In view of urgency

involved, with the consent of learned counsel for the parties, the // 10 //

writ petition is being disposed of finally at the stage of fresh

admission.

6. In compliance of the order dated 09.12.2021, Mr.

A. Mishra, learned counsel for the petitioners prepared a chart

indicating how many posts meant for reserved category are

lying vacant after three successive recruitment years, due to

non-availability of SC & ST candidates, and are to be de-

reserved for unreserved category candidates. In compliance

thereof, learned counsel for the petitioners has filed an affidavit

on 15.12.2021, paragraph-4 whereof reads as follows:

"4. That details of post of Medical Officers (Assistant Surgeons) in Group - A(Junior Branch) of the Odisha Medical & Health Services Cadre under Health and Family Welfare Department advertised from 2015 till date along with number of posts filled up by SC and ST categories are mentioned below :-

1. Advertisement no-18 of 2015-16

Total number of ST posts remained unfilled = 09.

2. Advertisement no-07 of 2016-17.

// 11 //

3. Advertisement no- 12 of 2017 - 18.

       Total number of posts advertised:                 2173




Total number of SC posts remained unfilled =                    423
Total number of ST posts remained unfilled =                    652

4.     Advertisement no- 18 of 2018 - 19.
Total number of posts advertised:                1950




Total number of SC posts remained unfilled =        394
Total number of ST posts remained unfilled =          618

5.     Advertisement no- 13 of 2019 - 20.
Total number of posts advertised:                3278

Reserved posts for ST category.                  1075


Total number of SC posts remained unfilled =            627
Total number of ST posts remained unfilled =            1019

6.     Advertisement no- 9 of 2020 - 21.
Total number of posts advertised:                2452

Reserved posts for ST category.                  1042


Total number of SC posts remained unfilled =            601
Total number of ST posts remained unfilled =            1007

7.     Advertisement no- 11 of 2021 - 22.
Total number of posts advertised:                 1586

Reserved posts for ST category.                   1001
Total No of Candidates selected from

Total number of SC & ST posts remained unfilled =      1505

8.    Advertisement no- 17 of 2021 - 22.
                                    // 12 //




     Total number of posts advertised:                      1871

It is submitted that selection pertaining to advertisement no-17 of 2021- 22 has not yet over."

7. It appears that the petitioners, who are 173 number

un-reserved category doctors, have approached this Court

claiming employment under the State authority, pursuant to

advertisement issued under Annexure-6 bearing advertisement

no.17 of 2021-22 for recruitment to the post of Medical Officers

(Assistant Surgeon) in Group-A (Junior Branch) of the Odisha

Medical & Health Services Cadre under Health & Family

Welfare Department. The number of posts advertised is 1871,

out of which for SC category 576 (192-w) posts and for ST

category 985 (323-w) posts are available to be filled up by

following recruitment process. The posts meant for reserved

category are not being filled up with effect from 2015-16 till

date. More so, in every year vacancies available for SC & ST

category are being carried forward to next recruitment year and

in the meantime seven recruitments have already been

conducted, but the posts meant for SC & ST have not been // 13 //

filled up. In compliance of the provisions contained in Sections-

6 and 7 of the ORV Act, 1975 the posts have to be de-reserved,

if the said posts are not filled up for three consecutive

recruitment years. Sections 6 and 7 of the ORV Act, 1975,

which are relevant for an effective adjudication of this case, are

quoted hereunder:-

"6. Exchange of reservation between the Scheduled Castes and Scheduled Tribes:-The reserved vacancies in appointments shall be exchanged between the Scheduled Castes and Scheduled Tribes in the event of non-availability of candidates from the respective communities, but the vacancies reserved for a particular community shall continue to be reserved for that community only for two recruitment years and if candidates are not available for appointment in particular reserved vacancies in the third year, the vacancy so filled by exchange shall be treated as reserved for the candidates of that particular community who are actually appointed.

Provided that nothing in this section shall apply to reserved vacancies in appointments in respect of Class III and Class IV Posts and Services.

7. Carry forward of reservation and de-reservation:- If, in any recruitment year, the number of candidates either from Scheduled castes or Scheduled Tribes is less than the number of vacancies reserved for them even after exchange of reservation between the Scheduled Castes and Scheduled Tribes the remaining vacancies may be filled up by general candidates after de-reserving the vacancies in the prescribed manner, but the vacancies so de-reserved may be carried forward to subsequent three years of recruitment:

Provided that in the years following the recruitment year the normal reserved vacancies together with the vacancies carried forward shall not exceed fifty percent of the total number of vacancies of the year in which recruitment is made and the excess over fifty per cent of the reserved vacancies shall be carried forward to subsequent years of recruitment.

// 14 //

Provided further that the provisions of this section shall not apply to the reserved vacancies to be filled up by promotion on the basis of selection where such promotion is to be made-

(a) from class III posts to Class II posts;

     (b)    within Class II posts;
     (c)    from Class II posts, to Class I posts, and
     (d)    from posts in the lowest rung to class I]

Provided also that nothing in the Section shall apply to the vacancies reserved in respect of Class III and Class IV posts. II candidates are not available for filling up such reserved vacancies these remaining vacancies shall be filled up by holding fresh recruitment only from candidates belonging to the Scheduled Castes or the Scheduled Tribes, as the case may be, and sub-section (5) of Section 9 shall not apply to such vacancies."

8. On perusal of the aforementioned provisions, it is

made clear that if. in any recruitment year, the number of

candidates either from Scheduled Castes or Scheduled Tribes is

less than the number of vacancies reserved for them even after

exchange of reservation between the Scheduled Castes and

Scheduled Tribes, the remaining vacancies may be filled up by

general candidates after de-reserving the vacancies in the

prescribed manner, but the vacancies so de-reserved may be

carried forward to subsequent three years of recruitment. It is

stated that for the recruitment year 2021-22, such principles

have not been followed by de-serving the posts.

// 15 //

9. In G.S. Gill (supra), the apex Court held as follows:

"Carry-forward rule is constitutionally permissible. It is an extension of the principle of providing facility and opportunity to secure adequacy of the representation to SCs and STs mandated by Article 335. It should be carried forward for three years. Even in the post when the vacancy as per roster was available, but candidates were not available, same could be carried forward for three years. However, in each recruitment year, the carry-forward rule cannot exceed 50% of the vacancies. That question however does not arise in a situation where there is a single post/cadre.

Xxx xxx xxx

"Whether or not reserved vacancies should be dereserved, is a matter falling primarily within the administrative discretion of the Government. There is no right in general candidates to seek filling up of the vacancies belonging to the reserved category and to insist on dereservation of reserved vacancies so long as it is possible in law to fill up the reserved vacancies. Carried-forward (unfilled) vacancies reserved for SCs and STs should be filled up only by the reserved candidates and general candidates have no right to seek direction for dereservation thereof for filling up of the same by general candidates. In the instant case, Government issued orders to carry forward for two years. The direction or mandamus to dereserve the solitary post was clearly unconstitutional because no mandamus could be issued to disobey the law or prohibit the authorities from discharging the functions. It would, be therefore, manifestly illegal to seek a mandamus or direction; nor would the court be justified to issue such mandamus or direction to the appropriate Government to dereserve vacancy."

10. In view of such position, this Court is of the

considered view that it is not justified to issue writ of

mandamus or direction to the appropriate Government to

deserve the posts. Rather it is the complete domain of the // 16 //

authority to look into the grievance of the petitioners and pass

appropriate order in accordance with law. Therefore, the State

authority shall act in consonance of the provisions contained in

Sections 6 and 7 of the ORV Act, 1975 and in terms of the law

laid down by the apex Court in G.S. Gill (supra) as

expeditiously as possible so that unreserved categories

applicants can get the benefits as due and admissible in

accordance with law.