Another vs Unknown
2021 Latest Caselaw 3782 Ori

W.P.(C) Nos.21132 of 2018 and 25418 of 2019

17. 18.03.2021 1. Heard Mr. R.K. Rout, learned counsel for the Petitioners and Mr. M.S. Sahoo, learned Additional Government Advocate for the State- Opposite Parties.

2. Both these writ petitions raise similar issues and are being disposed of by this common order.

3. W.P.(C) No.21132 of 2018 is by 23 Petitioners who applied for the post of Junior Typists and Junior Stenographers in different judgeships of the District courts in Orissa pursuant to an advertisement issued by the different judgeships (Opposite Party Nos.2 to 18) on 4th September, 2018. The grievance of these Petitioners is that on account of Rule 7(2) of the Orissa District and Civil Courts Non-Judicial Staff Services (Methods of Recruitment and Conditions of Services) Rules, 2008 ('2008 Rules'), the Petitioners have been debarred from participating in the written test. According to the Petitioners each of them has acquired the necessary qualification and certificates of training as Typists and Stenographers from the recognized institutions and they could not have been denied the opportunity of taking the written test only because they did not fall within the zone of persons permitted to take written test on an application of the Rule 7(2) of the 2008 Rules. Accordingly, they question of validity of the said rule and seek its striking down.

4. In this petition while directing notice to issue on 19th December, 2018, this Court directed that appointments of Junior Typists and Junior Stenographers pursuant to the impugned advertisement would be subject to the result of the writ petition.

5. In response to the notice issued in the writ petition, counter affidavits have been filed by most of the district courts by the common plea is that the Rule 7(2) has been strictly complied with.

6. While the first writ petition was pending, a fresh advertisement was issued on 31st August, 2019 by the various district judgeships inviting applications for the post of Junior Clerk-cum-Copyists, Junior Typists and Junior Stenographers of Grade-III. Four Petitioners claiming to have applied for the said posts filed the second writ petition W.P.(C) No.25418 of 2019 again questioning the validity of the Rule 7(2) of the 2008 Rules. In this petition no notice was issued and interim relief was also not granted by this Court. It was directed to be taken up with W.P.(C) No.21132 of 2018.

7. This Court heard the submissions of Mr. R.K. Rout, learned counsel for the Petitioners and Mr. M.S. Sahoo, learned Additional Government Advocate for the State-Opposite Parties.

8. Mr. Rout's contention was two-fold. He submitted that there was no justification in a first level screening of the applicants on the

basis of the total percentage of marks in HSC examination and +2 examination or the equivalent examination and then limiting the number of candidates to be invited for the written test up to 20 times of the actual vacancies, from such 'career merit list'. This according to him eliminated a large number of qualified applicants, including the Petitioners, from taking the written test and this was arbitrary and irrational. According to him there were no similar restrictions in the Rules governing the appointments of the staff of the High Court.

8. Mr. Rout further submitted that with different district judgeships issuing similar advertisements and holding simultaneous recruitments, the same persons could apply for the different judgeships and those within the "career merit list" would deprive others from even being able to take the written examination in other judgeships. This added to the unreasonableness and arbitrariness of Rule 7(2) of the 2008 Rules.

9. Mr. Sahoo appearing on behalf of the Opposite Parties submitted that there was no legality in short-listing candidates in the ratio 1:20 as provided under Rule 7(2) of the 2008 Rules. In the matter of public employment, there was bound to be far more applicants than the number of vacancies and therefore some screening method to limit the number of people taking the written test cannot be termed arbitrary and unreasonable.

10. The above submissions have been considered. At the outset, the Court notices that the recruitment process in all the judgeships for both years 2018 and 2019 are already complete and the successful candidates have joined their respective posts. While there was no interim order was passed for the 2019 recruitment, the appointments in the year 2018 are subject to outcome of the W.P.(C) No.21132 of 2018.

11. Rule 7 (2) of the 2008 Rules read as under:

"Manner of Selection of Candidates- (1) After receipt of applications for recruitment examination career merit lists for general and reserved categories according to the descending order of total of percentage of marks in H.S.C. Examination and +2 examination or their equivalent examinations shall be prepared.

(2) From each category of career merit list, candidates upto 20 times of actual vacancy in each category shall be called to appear at the written test.

(3) Considering the marks secured in the written test one merit list for general candidates and separate merit list for each of the reserved categories shall be prepared and candidates upto ten times of vacancy in each category shall be called for viva voce test.

(4) On the basis of marks secured in the written test and the viva voce test, a merit list of all candidates (both general and reserved categories) shall be prepared and thereafter separate merit lists for general and reserved categories shall be prepared according to the descending order of total marks.

(5) Candidates according to the descending order of total marks of each category mentioned in sub-rule (4) shall be selected for filling of the vacancy.

(6) The select list in respect of posts advertised shall remain valid for a period of one year from the date of first appointment from such list.

(7) There shall be a Recruitment Cell for each district to be constituted by the respective District and Sessions Judges for the purpose of collecting information continuously as to the vacancies arising upon retirement, promotion or resignation. The Cell shall assist the District Recruitment Committee and Process applications received for the posts and short list them as per the provisions of these rules.

(8) The recruitment shall take place every year well in advance before the vacancies arise."

12. The Opposite Parties have explained the background to the said Rules as follows:

"The recommendations of the Ist National Judicial Pay Commission (Hon'ble Shetty Commission) constituted for the employment and service conditions of non- judicial staff in subordinate Courts were accepted by the Hon'ble Supreme Court of India and accordingly in their judgment dated 15.07.08 passed in W.P.(C) No.1022 of 1989 (All India Judges Association and Another vs. Union of India and Others), all States were directed to implement the said recommendations of the Hon'ble Shetty Commission. Accordingly, the Government of Odisha passed Resolution on 10.10.2008 to implement the recommendations of the Hon'ble Shetty Commission and therefore, prepared draft Rules which were forwarded to the Hon'ble High Court of Orissa for views. The Hon'ble High Court vide letter No.8317, dated 30.09.2008 were pleased to

approve the said draft with some modifications. Accordingly, the draft Rules were revised and placed before the Cabinet for approval. After obtaining due approval of the Cabinet, the Government in Law Department have placed the Rules before the Hon'ble Governor for approval and after receipt of such approval, the Rules were notified on 30.12.2008."

13. Reference has also been made to the relevant portion of the recommendation of the Hon'ble Shetty Commission which read as under:

"xxx xxx xxx Having considered the above views and for reasons stated in Chapter-VI, and also to ensure transparency, we make the following recommendations:

(i) There shall be a District Recruitment Committee for each District consisting of:

(a) Principal District & Sessions Judge-Chairman

(b) Senior-mostAddl.District & Sessions Judge-Member

(c) Civil Judge(Sr. Div.)/CJM/CMM- Member.

(ii) This recruitment Committee shall make recruitment to all categories of posts, excluding the posts for which High Court is the Appointing Authority.

(iii) Recruitment Cell:

There shall be a Recruitment Cell established in each District Court for the purpose of collecting information continuously as to the vacancies arising upon retirement or promotion or resignation. This Cell shall assist the Recruitment Committee and process the applications received for the posts and short-list them as per the

guidelines of the Recruitment Committee. The Cell shall be provided with adequate staff. (Emphasis supplied)."

14. What Rule 7 (2) does is to introduce a screening mechanism where only those applicants who figure in the 'career merit list', prepared on the basis of the marks obtained in the school examination, falling within the zone of candidates comprising 20 times the actual vacancy in each category, are called for the written test. No doubt it restricts the number of applicants who will be called for the written test. However, given the huge pressure on the institution in conducting the recruitment exercise, with far too many applicants for a handful of vacancies, it is practically not feasible to expect that the written test will be held for all applicants. It is possible that some institutions need not consider it necessary to limit the number of candidates who will be called to take the written test but it is not entirely possible, given the very large number of applicants for the limited posts on offer in some of the institutions, that there is a need to have a screening mechanism to limit the number of candidates taking the written test. Conducting a written test for say 10,000 candidates instead of one lakh candidates would make a huge difference in terms of the time and the resources involved in conducting such an exercise. Further, since Rule 7 (2) of the 2008 Rules uniformly applies to all applicants it cannot be said to be arbitrary or irrational.

15. Further, there cannot be any legitimate expectation in any applicant that in a recruitment process governed by the 2008 Rules

they will be permitted to sit for the written examination irrespective of their performance in the school examination. No comparison can be drawn with the corresponding rules for recruitment of staff in the High Court. As already mentioned, it is for each institution to decide which is the best course to be adopted given the pressure on public employment and the large number of applicants for the few vacancies on offer.

16. For the aforementioned reasons, the Court is not persuaded to interfere. The challenge to validity of Rule 7(2) of the 2008 Rules is hereby negatived. The writ petitions are dismissed but in the circumstances, with no order as to costs.

(Dr. S. Muralidhar) Chief Justice

(K.R. Mohapatra) Judge

KC Bisoi