Orissa High Court
Utkalika Nayak vs District Judge on 15 November, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.437 of 2021
Utkalika Nayak ...... Petitioner
Mr. D.N. Rath, P.K. Rout
& A.K. Saa, Advocates
- versus -
District Judge, Khurda and Others ...... Opposite Parties
Mr. P.K. Muduli, AGA
CORAM:
THE CHIEF JUSTICE
JUSTICE A. K. MOHAPATRA
ORDER
15.11.2021
Order No.
Dr. S. Muralidhar, CJ.
08. 1. The present writ petition has been filed for a direction to the
District Judge, Khurda (Opposite Party No.1) and Registrar, Civil
Courts, Khurda (Opposite Party No.2) to recast the Selection List
and declare the Petitioner as the selected candidate for the post of
Junior Typist, keeping in view her position in the combined merit
list drawn pursuant to the advertisement dated 29th June, 2019.
2. The District Judge, Khurda published an advertisement dated
29th June, 2019 for filling up of different posts of Jr. Clerk-cum-
Copyist, Stenographer (Grade-III) and Junior Typists. Pursuant
thereto, the Petitioner applied for the post of Junior Typist. Seven
vacancies were earmarked for the post of Junior Typist. Of these, 4
were for the unreserved (UR) category, 1 for Scheduled Caste
(SC), 1 for Scheduled Tribe (ST) and 1 for the Socially and
Educationally Backward Class (SEBC) categories.
3. The Petitioner states that she submitted an application
mentioning her category as SEBC. In the combined merit list of
candidates, the Petitioner's name was at Serial No.5. Thereafter a
separate merit list for UR and reserved category candidates was
prepared and published. The Petitioner noticed that those at Sl.
Nos.1 and 2 in the combined merit list belonged to the SEBC
category and those at Serial Nos.3, 4, 6 and 7 to the UR category.
The Petitioner's name, as already noted, was at Serial No.5 and she
belonged to the SEBC category.
4. Opposite Party No.2, i.e. the Registrar, Civil Courts, Khurda
published a Select List, in which the candidates at Serial Nos.3, 4,
6 and 7 in the combined merit list were shown as selected Junior
Typists belonging to the UR category. The candidate who was
placed at Serial No.1 of the combined merit list was selected as
Junior Typist belonging to the SEBC category.
5. The grievance of the Petitioner is that, in terms of the settled
legal position, the candidates at Serial Nos.1 and 2 ought to have
been taken against the UR vacancies along with those at Serial
Nos.3 and 4. In such event the Petitioner, belonging to the SEBC
category at Serial No.5 of the combined merit list, would have
been highest in merit in the SEBC category and would have been
selected for the single vacancy reserved for that category.
6. This Court while issuing notice in the present petition, on 7th
January, 2021, directed that all actions taken in the meantime
pursuant to the Select List in question shall be subject to the result
of the writ petition. It requires to be mentioned here that the
candidates at serial numbers 3 and 4 who have been impleaded as
Opposite Party Nos.3 and 4 in the present writ petition, have not,
despite service of notice, entered appearance.
7. At the hearing on 7th October, 2021, learned counsel for the
Petitioner informed this Court that, two of the vacancies in the post
of Junior Typist are still unfilled. Mr. P.K. Muduli, learned AGA
then sought time to file an affidavit to that effect.
8. The stand of the Opposite Parties 1 and 2, in the counter
affidavit filed by them, is that the separate merit list for general
reserved category were prepared in terms of Rule 7(5) of the Orissa
District and Subordinate Courts Non-Judicial Staff Services
(Method of Recruitment and Conditions of Service Rule-2008 as
amended in 2010), which reads thus :
"7. 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 up
to 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 up to ten times of vacancy in each
category shall be called for computer science test
(practical), short-hand and type-writing test, as the case
may be, and the candidates selected in such practical
test shall be called for viva-voce test.
(4) On the basis of marks secured in the written test,
practical test as provided in sub-rule (3) and the viva-
voce test, a merit list of all the 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 up the vacancy."
9. It is therefore sought to be contended that, the above Rules were
strictly complied with, and therefore no interference is called for.
Reliance is also placed on the judgment of this Court in Dusmanta
Ku. Behera v. Registrar, Orissa High Court (judgment dated 29th
April, 2020 in W.P.(C) No.14746 of 2018).
10. Reference is also made on the Notification dated 15th March,
1999 of the Welfare Department, where, while dealing with the
question as to "whether the unreserved vacancies are reserved for a
specified class of candidates", the answer given was that:
"the unreserved vacancies are not reserved for any
general, S.C., S.T., O.B.C. or other specified class of
candidates. This has to be filled up strictly on the
basis of the 'select list' prepared by the Board of
Selection or the Departmental Promotion
Committee, following the relevant recruitment
rules."
11. Mr. Muduli nevertheless agreed that there are two unfilled
vacancies against the post of Junior Typist even as of date, and that
the Petitioner could be accommodated against one of the vacancies
if so ordered by this Court.
12. Mr. D.N. Rath, learned counsel for the Petitioner placed
reliance on the judgment dated 18th December, 2020 in M.A.
No.2641 of 2019 of the Supreme Court in S.L.P. (Civil) No.23223
of 2018 and W.P.(C) No.237 of 2020 (Saurav Yadav v. State of
Uttar Pradesh and the judgment dated 5th March, 2021 of the
Supreme Court in Civil Appeal Nos.3745-3754 of 2020 (The State
of Tamil Nadu v. K. Shobana).
13. In State of Tamil Nadu v. K. Shobana (supra), the Supreme
Court referred to a large number of judgments including Indra
Sawhney v. Union of India (1992) Supp. (3) SCC 217; R.K.
Sabharwal v. State of Punjab (1995) 2 SCC 745; Union of India v.
Virpal Singh Chauhan (1995) 6 SCC 684; Anil Kumar Gupta v.
State of U.P. (1995) 5 SCC 173 and Saurav Yadav v. State of Uttar
Pradesh (supra). In State of Tamil Nadu v. K. Shobana (supra),
the Supreme Court referred to with approval to the judgment of the
Madras High Court in K.R. Shanthi v. Secretary to Government,
Education Department, Chennai (2012) 7 MLJ 241, where
following the modalities for filling up the vacancies earmarked for
various categories was laid down:
"First Step :
(i) As against the number of vacancies identified for open quota,
irrespective of caste, sex, physically challenged, etc.,
everyone should be allowed to compete based on merits.
(ii) The meritorious candidates should be first selected as against
the above vacancies under open quota.
Second Step:
(iii) After completing the first step, moving on to the vertical
reservation categories, selection has to be made for each
category from amongst the remaining candidates belonging
to the particular reserved category (vertical) based on merits.
Third Step:
(iv) After completing the second step, horizontal reservation
which cuts across the vertical reservation has to be verified as
to whether the required number of candidates who are
otherwise entitled to be appointed under the horizontal
reservation have been selected under the vertical reservation.
(v) On such verification, if it is found that sufficient number of
candidates to satisfy the special reservation (horizontal
reservation) have not been selected, then required
corresponding number of special reservation candidates shall
have to be taken and adjusted/accommodated as against
social reservation categories by deleting the corresponding
number of candidates therefrom.
(vi) Even while filling up the vacancies in the vertical
reservation, if sufficient number of candidates falling under
the horizontal reservation have been appointed, then there
will be no more appointment exclusively under the horizontal
reservation.
Caution:
(vii) At any rate, the candidates who were selected as against a
post under open quota shall not be adjusted against the
reserved quota under vertical reservations."
14 In State of Tamil Nadu v. K. Shobana (supra), the Supreme
Court reiterated the earlier decision in Saurav Yadav v. State of
Uttar Pradesh (supra) and summarized the steps as under:
"The steps are clear in their terms: in the given facts of the
case, application of those principles or steps would imply:
a) The general merit list to be first filled in;
b) The backlog vacancies of the particular reserved category
to be thereafter filled in first; and
c) The remaining reserved vacancies for the current year to
be filled thereafter.
15. Interestingly, in State of Tamil Nadu v. K. Shobana (supra), it
was argued that the vacancies would have to be filled up only in
terms of Section 27(f) of the Tamil Nadu Government Servants
(Conditions of Service) Rules, 2016, and is explained as under:
"The principle that such of the reservation category
candidates who make it on their own merit have to
be adjusted against the general category candidates
has not been in doubt or argued in view of the catena
of judgments cited aforesaid. In our view, Section
27(f) of the Act cannot be read in a manner, apart
from any other reason, to negate this very principle."
16. In other words, whatever the statutory rules governing the issue,
it would have to give way to the settled legal position as explained
in a large number of decisions of the Supreme Court of India,
judgments referred to hereinabove.
17. The long and short of the above discussion, as far as the present
case is concerned, is that there is merit in the contention of the
learned counsel for the Petitioner that where the candidates
belonging to the SEBC category were found to have been at Serial
Nos.1 and 2 of the Combined Merit List, they could not be taken to
exhaust the SEBC category but should have been appointed against
vacancies in under the UR category. In that event, the Petitioner
who has the highest merit in the SEBC category, should have been
offered the appointment against the single vacancy in the post of
Junior Typist reserved for that category.
18. Considering that there are two unfilled vacancies in the post of
Junior Typist, a direction is issued to the Opposite Parties 1 and 2 to
immediately issue a letter of appointment to the Petitioner and place
her in the SEBC category in the order of merit above Opposite
Parties 3 and 4. The necessary orders be issued not later than two
weeks from today.
19. It is further clarified that, for the purpose of seniority and other
incidental service benefits, the Petitioner's appointment date shall
be notionally reckoned from the same date of appointment of
Opposite Parties 3 and 4, but she will not be entitled to any arrears
of salary.
20. The writ petition is disposed of in the above terms.
21. An urgent certified copy of the order be granted as per the rules.
(Dr. S. Muralidhar)
Chief Justice
(A. K. Mohapatra)
Judge
S.K. Parida
