Orissa High Court
Ashok Kumar Behera vs State Of Odisha And Others on 21 October, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.25721 of 2013
(An application under Article 226 and 227 of the Constitution of India)
----------
Ashok Kumar Behera ...... Petitioner
Versus
State of Odisha and Others ...... Opp. Parties
Advocate(s) appeared in this case :-
For Petitioner : Mr. G.A.R. Dora, Sr. Advocate
For Opp. Parties : Mr. M.S. Sahoo, AGA
Mr. G.R. Sethi, Advocate for O.P.4
CORAM : THE CHIEF JUSTICE
JUSTICE B.P. ROUTRAY
JUDGMENT
21st October, 2021
B.P. Routray,J.
1. Challenging the orders dated 21st August, 2013, 11th September, 2013
and 25th September, 2013 of the learned Odisha Administrative Tribunal
in O.A. No.2382(C) of 2012 and the consequential order discharging the
Petitioner from service, the present writ petition has been filed.
2. The Petitioner was Respondent No.5 before the Tribunal and present
Opposite Party No.4 was the Applicant.
3. The dispute relates to appointment to the post of Constable against
posts reserved for Home Guards in Jagatsinghpur district for the
recruitment year 2011. On 1st April, 2011 the advertisement was
published for recruitment to 86 vacant posts of Constables for
Jagatsinghpur district. Both the Petitioner and Opposite Party No.4 were
working as Home Guards on the date of advertisement and belong to
SEBC category. They applied and participated in the recruitment
process. The recruitment to the post of Constables is governed by the
Odisha Police Service (Method of Recruitment and Conditions of
Service of Constables) order, 2010. 10% of the total vacancies are to be
filled up from Home Guards. Upon completion of the selection process,
Petitioner secured 43.25 marks and Opposite Party No.4 secured 40.25
marks in total and as such, appointment order was issued in favour of
Petitioner on 17th November, 2011 and he joined as a Constable.
Opposite Party No.4 challenged the selection of the Petitioner before the
OAT by contending that, additional 4 marks given to the Petitioner
towards educational achievement is illegal as he is not entitled for the
same. State through the Superintendent of Police (SP), Jagatsinghpur
conceded to the said contention of Opposite Party No.4 and stated that by
mistake excess 4 marks has been given to the Petitioner which is the
basis for his securing more marks than Opposite Party No.4 to get the
appointment. It was further admitted that in subsequent scrutiny this
mistake came to notice of the authorities that 4 marks has been wrongly
awarded to the Petitioner in excess and if the same would be deducted,
his total marks comes to 39.25. It was also admitted that Opposite Party
No.4 secured 40.25 marks. Accordingly, the Tribunal in its order dated
25th September, 2013 directed to recalculate the marks of the Petitioner
and in case Opposite Party No.4 is found to have secured more marks
than the Petitioner, then to issue appointment order in his favour.
Pursuant to said order of the Tribunal, Petitioner was discharged from
service with effect from 31st October, 2013 and Opposite Party No.4 was
given appointment as Constable. This is the subject matter of challenge
in the present writ petition.
4. Mr. Dora, learned Senior Counsel appearing for the Petitioner
submitted that 10% of the total vacancy comes to 8.6 which may be
rounded up to 9. So, 9 posts of Constables from Home Guards were to be
filled up. But in the present case only 6 posts of Constables from Home
Guards have been filled up and 3 more posts on this count has been
lapsed due to wrong calculation by the authorities. Therefore, even to
give appointment to Opposite Party No. 4, the services of Petitioner was
not required to be terminated and he can be adjusted in one of those 3
other posts due for Home Guard quota against SEBC vacancy. The
affidavits dated 12th August, 2016, 30th August, 2016 and 10th November,
2016 of the SP, Jagatsinghpur are referred to by Mr. Dora in this regard.
5. Mr. Sahoo, learned Additional Government Advocate, without
disputing the factual position, submitted that even if 3 more posts are to
be counted towards Home Guard quota, still the Petitioner is not entitled
to be appointed as no post would fall in that SEBC category in the
benefit of the Petitioner to get an appointment.
6. The only order dated 25th September, 2013 amongst three such orders
of the tribunal under challenge, is relevant. Other two orders dated 21st
August, 2013 and 11th September, 2013 have apparently merged with
order dated 25th September, 2013. Needless to mention that the first order
dated 21st August, 2013 was recalled by order dated 11th September,
2013 in MP No.1303(C) of 2013 and then final order dated 25th
September, 2013 was passed.
7. The facts of the case that Opposite Party No.4 secured 40.25 marks
and Petitioner secured 39.25 marks and has been mistakenly added 4
more marks, which he is not entitled to, is not disputed by any of the
parties in course of hearing. Thus, it is fairly clear that Opposite Party
No.4 secured more marks than the Petitioner and the initial order of
appointment issued in favour of the Petitioner was a mistake. Therefore,
no infirmity is found in the order of the learned Tribunal dated 25 th
September, 2013. Moreover, the Tribunal has never directed for
termination of the Petitioner. When the admitted fact remains that
Opposite Party No.4 secured more marks than the Petitioner, he is
certainly entitled for selection and appointment being more meritorious
than the Petitioner. Therefore, the order of appointment issued in favour
of Opposite Party No.4 cannot be termed as illegal also.
8. In regard to the alternative contention of the Petitioner that 10% of
total vacancies of the posts against Home Guard quota comes to 9 and
three such post out of the same has not been filled by Home Guards, it is
admitted by the State - Opposite Parties that only 6 posts from Home
Guards have been filled up against the total vacancies. Here the question
arises that, whether the Petitioner being an SEBC candidate could be
appointed in any such posts meant for Home Guards?
9. As per the contention of Mr. Dora, the authorities made faulty
calculation and in the process 3 posts of Constables meant for Home
Guards have lapsed. The calculation of counting posts under different
categories has been stated by the SP in its affidavit dated 30 th August and
10th November, 2016. Paragraphs 2, 3 and 4 of the affidavit dated 10 th
November, 2016 are reproduced below:-
"2. That, as on 1.10.2011, the breakup of the 341 posts of
constables in the District of Jagatsinghpur is given below:-
UR(M) - 167 200
UR(W) - 33
SEBC(W) - 8
- 7
ST(W)
SC(M) - 59 75
SC(W) - 16
Total 341
3. That among the 86 appointments made in the year 2011,
the following is the detailed breakup of the candidates:-
UR(M) - 20 30
UR(W) - 10
SEBC(W) - 7
- 6
ST(W)
SC(M) - 9 14
SC(W) - 5
Total 86
4. That as indicated in Annexure-A/3 of earlier affidavits
dated 12.08.2016, 2 Home Guards under UR, 2 Home
Guards under SEBC and 01 Home Guard under SC category
were appointed. Due to non-availability of ST Home Guard
candidates, the post was filled up from other ST category
candidates."
10. It is further mentioned in the affidavit dated 30th August, 2016 that,
11.25% reservation for SEBC candidates comes to 48 posts, whereas 47
persons belonging to SEBC category were under employment in the year
2011. It is again mentioned that in the year 2011, total 427 posts of civil
constables were available in Jagatsinghpur district, out of which 86 posts
were vacant and accordingly the recruitment process was undertaken and
all such vacancies were filled up including 23 numbers of SEBC
candidates.
11. It is thus understood from the facts mentioned in the affidavits of SP,
Jagatsinghpur that all 23 vacancies in SEBC category of the relevant
recruitment year have been filled up. In the vacancy created by
termination of the Petitioner, Opposite party No.4 was appointed. So, no
miscalculation is there on the total count of posts for SEBC category.
Taking 23 posts for SEBC category, 10% of the same comes to 2.3 and
rounded to 2. As revealed by the affidavits of the SP, Jagatsinghpur, two
posts meant for Home Guards in SEBC category have been filled up in
the recruitment process. So no further vacancy can be counted in the
SEBC category meant for Home Guards to adjust the Petitioner as per
the contention of Mr. Dora. Thus no ground is seen for issuance of any
direction to favour the Petitioner for his appointment. The contention of
the learned Senior Counsel in this regard seems without merit.
12. As seen from the affidavit dated 30th August, 2016, only 47 persons
are manning against 48 posts fall due for SEBC category in
Jagatsinghpur district for the year 2011, and as per submission of Mr.
Dora the Petitioner could be adjusted in the remaining one such post in
SEBC category. It is also submitted that 11 posts of Constables in SEBC
category are still vacant as on 16th August, 2021 due to promotion and
retirement and the Petitioner may be suitably adjusted in one such post.
We are not inclined to issue any such directions for adjustment of the
Petitioner which is required to be filled up in a due process of selection.
13. Accordingly, the writ petition is dismissed.
14. It is however open for the State - Opposite Parties to consider the
case of the Petitioner for his adjustment in any one such post, if they
deem fit, uninfluenced by any observation of this Court made in the
present case.
(B.P.Routray)
Judge
(Dr. S. Muralidhar)
Chief Justice
M.K. Panda, Sr. Steno
