Orissa High Court
Afr Ladu Kishor Patro vs State Of Odisha And Others on 13 July, 2021
ORISSA HIGH COURT: CUTTACK
WPC(OAC) NO. 3502 OF 2013
In the matter of an application under Articles 226 and
227 of the Constitution of India.
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AFR Ladu Kishor Patro ...... Petitioner
-Versus-
State of Odisha and others ..... Opp. Parties
For Petitioner : M/s. G.M. Rath, S.S. Padhy,
A.P. Rath, S. Jena & R. Pati
Advocates
For Opp. Parties : Mr. M. Balabantray,
Addl. Standing Counsel
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
DECIDED ON :: 13.07.2021
DR. B.R. SARANGI, J. The petitioner, by means of this writ
petition, seeks direction to the opposite parties for
issuance of order of appointment in his favour in the
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post of Excise constable, pursuant to the proceeding of
District Selection Committee constituted for recruitment
of Excise constables of Berhampur Excise District in
accordance with physical standard test and written test
held on 15.11.2011 to 16.11.2011 and 11.12.2011 in
Annexure-1.
2. The factual matrix of the case, in hand, is
that the Government of Odisha in Excise Department,
vide notification no. 2650/Estt. dated 08.06.2011,
issued an advertisement, which was published in print
media i.e. daily newspaper "The Samaj" on 09.09.2011
inviting applications from eligible candidates for
recruitment of ten nos. of Excise constables in
Berhampur Excise District under different categories,
which reads as follows:
"Category of Post Male Female = Total
ST 1 1 = 2
SC 1 1 = 2
SEBC 2 1 = 3
UR 2 1 = 3
___________________________________________________
Total :- 6 4 = 10"
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The petitioner, who belonged to Socially Educationally
Backward Class (SEBC) category, having requisite
qualification applied for the said post. In pursuance of
the above advertisement, all total 301 (three hundred
one) applications were received from different categories
of candidates. After scrutiny, 246 applicants were
qualified for physical standard test held on 16th and 17th
November 2011. The details of category-wise candidate
selected for physical standard test is as follows:
ST SC SEBC UR Total
Man 16 Man 53 Man 106 Man 58 233
Women 1 Women 5 Women 6 Women 1 13
Total 17 Total 58 Total 112 Total 59 246
Out of the above 246 applicants, only 164 candidates
(153 male and 11 female) had appeared in the physical
standard test on 16th and 17th November, 2011. As
against 164 candidates appeared in the physical test,
only 18 candidates were qualified, including 2 women
candidates, for written test for the post of Excise
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constable. The category-wise candidates is as follows:
ST SC SEBC UR Total
1 5 including one 8 4 including one 18
women women
The written test was conducted on 11.12.2011 at
Chhatrapur, where all the 18 candidates appeared. The
merit list of the candidates was worked out which is
furnished below:
Sl. No. Name Category of Candidates
Unreserved Category
1 Sri Sabyasachi Mishra UR
2 Gobionda Behera S.C.
3 Pabitra Mohanty U.R.
4 Ganesh Kumar Panigrahi U.R.
5. Sandhya Rani Gauda U.R. (W)
S.E.B.C. Category
1 Kanhu Charan Pradhan SEBC
2 Sisirkanta Nayak SEBC
3 G. Krishna Rao SEBC
4. Ladu Kishor Patra SEBC
5. Niranjan Nayak SEBC
S.C. Category
1 Damburu Prasad Behera SC
2 Nakula Behera SC
3 Padmabati Sethi SC (W)
S.T. Category
1 Rupendra Kumar Rout ST
In view of the list prepared as mentioned above, no
women candidate could qualify in SEBC category.
Therefore, the post reserved for women in SEBC category
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was decided to be filled up from the SEBC Male
candidate as per the merit list.
2.1 At the time of recruitment one candidate
named Suresh Bhuyan from ST category filed W.P.(C)
No. 32409 of 2011 before this Court challenging the
physical tests, wherein this Court passed an interim
order that the result of the interview shall be subject to
the result of the writ application. On the basis of the
selection of the District Selection Committee of the
Excise constables held on 15.11.2011, the Excise
Commissioner, Odisha, Cuttack approved the proceeding
of the District Selection Committee and communicated
vide his memo No. 4905 dated 24.08.2012 for
appointment of the following candidates as Excise
constable.
Sl. Name of the Candidate Category
No.
1 Sri Sabyasachi Mishra UR
2 Gobionda Behera S.C.
3 Kanhu Charan Pradhan SEBC
4 Damburu Prasad Behera SC
5 Sisirkantga Nayak SEBC
6 Sandhyarani Gouda UR (Women)
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7 G. Krishna Rao SEBC
(Against SEBC
Women Category
8 Padmabati Sethi SC(W)
As no suitable ST women candidate was available, the
post from ST women category was kept vacant. Similarly,
as Suresh Bhuyan had filed writ petition, the said post
had also not been filled up as per the order of Excise
Commissioner, Odisha, Cuttack. Accordingly,
appointment orders were issued to the above 8
candidates, vide letter no. 1191 dated 04.09.2011.
2.2 Out of the above 8 candidates, only one
candidate named Kanhu Charan Pradhan from SEBC
category did not join as Excise constable. He neither
joined nor intimated to the authority about his inability
to join in the said post and, as such, one post from
SEBC male category remained vacant. Since none had
joined from SEBC male category, as Kanhu Charan
Pradhan, who stood first in the merit list, did not choose
to join, that post remained vacant. Thereby, the
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petitioner claimed that appointment letter should be
given in his favour, so that he can join in the said post of
SEBC category, which is lying vacant, as his name had
been figured at serial no. 4 in the list of SEBC category.
The same having not been acceded to, the petitioner
approached the Orissa Administrative Tribunal in O.A.
No. 3502(C) of 2013 and on abolition of the said
tribunal, the said original application has been
transferred to this Court and registered as above.
3. Mr. G.M. Rath, learned counsel for the
petitioner contended that admittedly, as per the
advertisement, three posts of Excise constable from the
SEBC category were to be filled up, out of which two
male and one female. Since no female candidate of SEBC
category qualified, as per the proceeding of the District
Selection Committee, the post reserved for the female
candidate of the SEBC category was suggested to be
filled up by male candidate of the corresponding
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category. Thereby, appointment letter was issued in
favour of G. Krishna Rao, who stood at serial no.3 of the
SEBC category, against de-reserved post of SEBC female
candidate. Thereafter, one Kanhu Charan Pradhan, who
stood first in the merit list of the SEBC category, did not
join in spite of repeated intimation. Thereby, one post
remained vacant in SEBC male category. The petitioner,
being at serial no.4 in the merit list, said post which is
lying vacant should be filled up by appointing him.
Against non-issuance of appointment letter to the
petitioner, he has filed this writ petition and, as such, it
is contended that the action of the authority in denying
appointment to the petitioner is arbitrary, unreasonable
and contrary to the provisions of law, which violates
Article-14 and 16 of the Constitution of India.
4. Per contra, Mr. M. Balabantaray, learned
Addl. Standing Counsel for the State contended that the
opposite parties have no obligation to allow the petitioner
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to join against the vacant post of SEBC male category,
which is lying due to non-joining of Kanhu Charan
Pradhan, who stood first in the merit list of SEBC
category. Thereby, he claims that the writ petition
should be dismissed because no right is accrued in
favour of the petitioner. Merely the name of the
petitioner finds place in the select list, he cannot claim
that he should be given appointment against the vacant
post of SEBC category.
5. This Court heard Mr. G.M. Rath, learned
counsel for the petitioner and Mr. M. Balabantaray,
learned Addl. Standing Counsel for the State through
virtual mode, and perused the record. Pleadings having
been exchanged between the parties and with the
consent of the learned counsels, this writ petition is
being disposed of finally at the stage of admission.
6. On the basis of the factual matrix
delineated above, the advertisement dated 09.09.2011
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was issued for filling up of 10 posts of excise constable.
Out of the same, three posts were reserved for SCBC
category, out of which 2 for male and 1 for female. As
per the proceedings of the District Selection Committee
for recruitment of excise constable for Berhampur Excise
District held on 15.11.2011 to 16.11.2011 and
11.12.2011, it was suggested that since no female
candidate could qualify in SCBC category, the post
reserved for female to be filled up by the male candidate
of the corresponding category. Accordingly, the final
select list, which was published pursuant to the written
test conducted on 11.12.2011, all total 18 candidates
had appeared and out of them 5 candidates belonging to
SCBC category were qualified. Accordingly, a panel of
select list belonging to SEBC category was published.
One Kanhu Charan Pradhan stood first in the merit list
belonging to SCBC male category, whereas petitioner
stood 4th in the merit list. Kanhu Charan Pradhan did
not join in spite of repeated intimation, nor submitted
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willingness or unwillingness to join in the post. So,
appointment letter was issued in favour of Sisirkanta
Nayak, whose name finds place at serial no.2 as against
SCBC male candidate post. One G.C. Rao, whose name
finds place at serial no.3, was issued with appointment
letter against SCBC women category pursuant to
proceeding of the department. Thereby, one SCBC male
category post is still lying vacant.
7. The petitioner has pleaded in para 6.4 of
the writ petition as follows:-
"6.4. That after issuance of the said office order
under Annexure-2 the applicant came to know
that his name does not find place in the said
office order for which the applicant made a
representation to the respondent no.3 stating
therein that our of 5 successful candidates the
applicant stands 4th place in the merit list in
S.E.B.C. category. One Sri Kanhu Charan
Pradhan who has qualified in the first place but
did not join the post of Excise constable as he
has joined in O.S.A.P. as constable. The
candidate in serial no. 2 has joined and the
woman candidate at serial no.3 has also joined
against reserved post of woken in SEBC
category. Since the candidate at serial no.1 did
not join, hence the vacancy in men category has
remained as such. Therefore, the applicant
requested to deploy him as Excise constable in
the vacant place since he has a right to seek
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absorption. The true copy of the said
representation is annexed hereto as ANNEXURE-
3."
The opposite parties no.1 and 3 also filed counter
affidavit, in para-4 whereof it has been pleaded as
follows:-
"4. That in reply to the averment in Para-6(4) of
the O.A. it is humbly submitted that as per the
approval order of Excise Commissioner, Odisha,
Cuttack vide their letter No. 4905 dated
24.08.2012 all the 8 (eight) candidates were
issued appointment letter vide this office letter no.
1191 dated 04.09.2011. But one candidate Sri
Kanhu Charan Pradhan from SEBC category did
not join in service and also not intimated the
reason of his non joining in spite of repeated issue
of letters to him thereby the vacancy has not been
filled up till date. It is not a fact that Sri Pradhan
has joined in OSAP as no report has been
received from him so far in this office."
The pleadings available on record itself clearly
indicate that the post of excise constable, so far as SCBC
male category is concerned, is still lying vacant and that
has not been filled up till the counter affidavit was filed
by the State. While entertaining the O.A., the State
Administrative Tribunal, vide order dated 10.10.2013,
passed an interim order to the following effect:-
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"As regards prayer for interim orders,
appointment of S.E.B.C. candidates at Annexure-
2 shall be subject to out-come of this O.A. and the
select list shall not be deemed to have lapsed till
disposal of this O.A."
Thereby, the select list, which was prepared for filling up
of the post of excise constable, so far as it relates to
SCBC candidates, will not lapse and thereby there exist a
vacancy, as has been admitted in the counter affidavit
filed by the State. Consequentially, since petitioner's
name finds place at serial no.4 in the merit list, he is
entitled to be appointed as a constable in excise in
Berhampur Excise District.
8. In Rakhi Ray v. High Court of Delhi
(2010) 2 SCC 637 : AIR 2010 SC 932, the apex Court
held that the process of selection begins with the
issuance of advertisement and ends with the filling up of
notified vacancies.
9. In A.P. Public Service Commission,
Hyderabad v. B. Sarat Chandra, (1990) 2 SCC 669,
the apex Court held that the process consists of various
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steps like inviting applications, scrutiny of applications,
rejection of defective applications or elimination of
ineligible candidates, conducting examinations, calling
for interview or viva voce and preparation of list of
successful candidates for appointment.
10. In view of the above judgments, the
process of selection having been concluded and select list
having been prepared, the same has also been given
effect to by issuing appointment letters in favour of the
selected candidates, but, so far as SCBC category is
concerned, since the candidate who stood first, namely,
Kanhu Charan Pradhan did not join, one post of SCBC
male category is still lying vacant as per the counter
affidavit filed by the State, and the petitioner being stood
at serial no.4 in the list, he should have been given
appointment letter, as he is otherwise qualified and
eligible to be appointed so as against number of post
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advertised by the authority for appointment of
candidates belonging to SEBC category.
11. In Shankarsan Dash v. Union of India
(1991) 3 SCC 47 : AIR 1991 SC 1612, the apex Court
held as follows:-
"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."
12. In East Coast Railway v. Mahadev
Appa Rao, (2010) 7 SCC 678: AIR 2010 SC 2794, the
apex Court held that though a candidate who has passed
an examination or whose name appears in the select list
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does not have an indefeasible right to be appointed, yet
appointment cannot be denied arbitrarily, nor can the
selection test be cancelled without giving proper
justification. Further, Court can give appropriate
directions when a decision is found to be arbitrary.
13. It is well settled principle of law laid
down by the apex Court that the empanelment of the
candidate in the select list confers no right on the
candidate to appointment on account of being so
empanelled. At the best it is a condition of eligibility for
the purpose of appointment and by itself does not
amount to selection nor does it create a vested right to be
appointed unless the service rules provide to the
contrary.
14. There is no dispute on the principles, as
set forth by the apex Court, but deviation can be made in
view of the Constitution Bench judgment in S.C. Das
and East Coast Railway mentioned supra and applying
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the said judgments to the present case, admittedly if the
advertisement indicates three posts to be filled up from
SCBC category, out of which two belonged to male and
one belonged to female and, as such, one male and one
female category has been filled up by de-reserving the
same, then balance one post appearing for the SCBC
male category candidate is to be filled up and pursuant
to the interim order passed by the tribunal the validity of
the list is deemed to be continuing, thereby, the
petitioner being placed at serial no.4 in the merit list, he
is entitled to be appointed as excise constable pursuant
to the advertisement issued and the denial of such
appointment to the petitioner, without assigning any
reason thereof, is arbitrary, unreasonable and contrary
to the provisions of law.
15. In the above premises, this Court directs
the opposite parties to issue order of appointment in
favour of the petitioner as constable excise against the
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vacant post of SCBC male category in Berhampur Excise
District as expeditiously as possible, preferably within a
period of three months from the date of communication
of this judgment.
16. The writ is petition is thus allowed. No
order as to costs.
As the restrictions due to resurgence of
COVID-19 situation are continuing, learned counsel for
the parties may utilize a printout of the judgment
available in the High Court's website, at par with certified
copy, subject to attestation by the concerned advocate, in
the manner prescribed vide Court's Notice No.4587,
dated 25th March, 2020 as modified by Court's Notice
No. 4798 dated 15th April, 2021.
...............................
DR. B.R. SARANGI,
JUDGE
Orissa High Court, Cuttack
The 13th July, 2021, Ajaya/GDS
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