Afr vs Rojalin Mohapatra
2022 Latest Caselaw 2485 Ori

                    ORISSA HIGH COURT: CUTTACK

                          W.P.(C) NO. 13120 OF 2018

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

AFR State of Odisha and others ..... Petitioners

-Versus-

         Rojalin Mohapatra                     .....       Opp. Party

            For Petitioners     :   Mr. S. Jena, Standing Counsel,
                                    S&ME Department.

            For Opp. Party      :   M/s. K.K. Rout, S.K. Rout, A.K.
                                    Dalai, J. Naik and (Ms.) Azra
                                    Jamal, Advocates.

         P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HON'BLE MISS JUSTICE SAVITRI RATHO

Date of hearing & judgment: 09.05.2022

DR. B.R. SARANGI, J. The State of Odisha and its functionaries

have filed this writ petition seeking to quash the order

dated 21.07.2017 passed by the Odisha Administrative

Tribunal, Bhubaneswar Bench, Bhubaneswar in O.A. No.

2728 of 2013, by which the tribunal has directed them to

call the applicant-opposite party for certificate/

documents verification and, if she is otherwise found

eligible and suitable, to give her appointment against

unfilled post in SEBC category, and that in event she is

appointed, to count her appointment w.e.f. the date the

other persons have been appointed, maintaining her

seniority below them, and to extend her the notional

financial benefits.

2. The factual matrix of the case, in brief, is that an

advertisement was issued for the post of contract teacher

in TGT (CBZ), pursuant to which opposite party no.1

submitted her application under SEBC (W) category.

Though her position in the merit list was at sl. no. 39 and

at sl. no. 1 in SEBC category, yet she was not called for

the certificate verification. As such benefit was illegally

denied to her, she approached the tribunal.

2.1 To the stand taken by opposite party no.1

before the tribunal, a counter affidavit was filed by the

present petitioners, stating inter alia that all total 64

posts of contract teacher in the discipline of TGT (CBZ

were advertised, out of which 8 posts were meant for

SEBC including one SEBC (W). As per the merit list

prepared, in SEBC category 8 candidates were placed

above opposite party no.1, for which she could not be

selected. The last candidate in SEBC category had

secured 197.254% of marks, whereas opposite party no.1

had secured 196.157% of marks. In the 1st phase of

selection, out of 8 SEBC candidates, 4 joined and in the

second phase 4 candidates were selected where the name

of opposite party no.1 did not find place, as she had

secured less mark than the last candidate selected. As

such, the name of opposite party no.1 did not come

within the zone of consideration, for which her grievance

merits no consideration.

2.2 To the counter affidavit filed by the petitioners,

a rejoinder affidavit was filed by opposite party no.1

before the tribunal stating inter alia that had the

reservation policy been followed properly, then two posts

would have been reserved for SEBC (W) category; which is

33.1/3% of the total vacancies, and in such situation

opposite party no.1 should have been selected. As per the

merit list prepared, 7(seven) candidates were selected who

were at Sl. Nos. 5, 8, 9, 14, 16, 18 and 31 and, as such,

the 8th post was kept vacant. Since no woman candidate

was selected, opposite party no.1 being the next in the

select list, ought to have been selected for the said post.

One Subash Chandra Sahu, whose position in the merit

list was at sl. no.44, was selected, though he had secured

194.555% of marks. However, he was shown to have

secured 197.555% of marks, which was by way of

manipulation/ tampering of his mark, therefore selection

of Subash Chandra Sahu was illegal. When only seven

SEBC candidates were selected, the claim of opposite

party no.1 for selection could not have been denied. As

opposite party no.1 was claiming for selection against

reserved vacancy for women category under SEBC quota,

non- consideration of the case of opposite party no.1

was illegal, unreasonable and contrary to the provisions

of law.

2.3 The tribunal, after due adjudication, passed

the following order:-

"Thus, as admittedly one post in SEBC category is still available, the right is accrued to the applicant for consideration of her candidature against the said post and accordingly, the respondent authorities are directed to consider to call the applicant for certificate/ documents verification and if she is otherwise found eligible and suitable for appointment, she may be given appointment against the unfilled up post in SEBC category. While considering the claim of the applicant, persons who have secured more marks than the applicant in the said category, should not be ignored. In the event the applicant is appointed, her appointment should be counted with effect from the date the other persons have been appointed, mainlining her seniority below them and notional financial benefits should be extended to her. The entire exercise be completed within a period of three months from the date of receipt of copy of this order."

But the State authorities, instead of complying the order

of the tribunal, as extracted above, chose to file this writ

petition.

3. Mr. S. Jena, learned Standing Counsel for

School & Mass Education Department appearing for the

State-petitioners vehemently contended that since the last

person in the merit list belonging to SEBC category had

secured 197.254% of marks, whereas opposite party no.1

had secured 196.157% of marks, thereby she was not

selected. But, it is contended that 7 candidates, out of 8

vacancies meant for SEBC category, were given

appointment and, as such, one post was lying vacant

belonging to SEBC category. It is further contended that

as against SEBC (W) category no candidate was selected,

therefore, the said post remained vacant.

Consequentially, it is contended that the tribunal has

committed gross error apparent on the face of the record

by issuing direction to give appointment to opposite party

no.1 against the unfilled post of SEBC category. As a

result, it is contended that the order of the tribunal

cannot sustain in the eye of law and the same is liable to

be set aside.

4. Ms. Azra Jamal, learned counsel appearing on

behalf of Mr. Kshirod Kumar Rout, learned counsel for

opposite party no.1 contended that opposite party no.1

belongs to SEBC (W) category and, as such, as has been

stated by learned Standing Counsel for the School &

Mass Education Department, the said post was lying

vacant. Therefore, opposite party no.1 had a right to be

considered for appointment against reserved category

post meant for SEBC (W). As a consequence thereof, non-

consideration of the case of opposite party no.1 for such

appointment, violates the reservation policy of the State.

4.1 It has also been brought to our notice that this

Court, while entertaining the instant writ petition, on

20.12.2018, passed the following order:-

"Heard learned counsel for the State- petitioners.

On perusal of the order dated 21.07.2017, passed by the learned Odisha Administrative Tribunal, Bhubaneswar Bench, Bhubaneswar, in O.A. No.2728 of 2013, it is seen that a direction was given to the petitioners herein to complete the entire exercise within a period of three months from the date of receipt of the order. It appears that without complying the said order, the petitioners have approached this Court on 24.07.2018, i.e. almost after one year.

In that view of the matter, the petitioners are directed to first implement the order passed by the learned Tribunal which shall be subject to the result of the writ petition. Thereafter the matter will be heard. The matter to come up on 24.1.2019."

In compliance thereof, opposite party no.1 was issued

with appointment order on 05.02.2019, which is subject

to outcome of the writ petition. It is contended that if

opposite party no.1 has already got employment against

reserved vacancy meant for SEBC (W), on 05.02.2019,

and is continuing against the said post, now if any

contrary view is taken, the same will cause prejudice to

opposite party no.1. Thereby, she contended that the writ

petition filed by the State-functionaries should be

dismissed.

5. This Court heard Mr. S.Jena, learned Standing

Counsel for the School & Mass Education Department

appearing for the State-petitioners and Ms. A. Jamal,

learned counsel appearing on behalf of Mr. Kshirod

Kumar Rout, learned counsel for opposite party no.1 by

hybrid mode, and perused the record. On the basis of the

materials available on record, the matter is being

disposed of finally at the stage of admission, with the

consent of learned counsel for both the parties.

6. There is no dispute with regard to the fact that

an advertisement was issued for appointment to the post

of contract teachers in TGT (CBZ). Pursuant to such

advertisement, opposite party no.1 submitted her

application under SEBC (W) category. Though her

position in the merit list was at sl. no.39 and at sl. no. 1

in SEBC category, she was not called for certificate

verification. Therefore, she approached the tribunal and

by order on 21.07.2017 the tribunal directed to give her

appointment, which is the subject matter of challenge in

the present writ petition.

7. As a matter of fact, the last candidate in SEBC

category had secured 197.254% of marks, whereas

opposite party no.1 had secured 196.157% of marks.

Therefore, she could not be selected. But fact remains,

out of 8 posts meant for SEBC category, 7 candidates

were appointed. No candidate from SEBC (W) category

was given appointment, even though 8th post belonging to

SEBC category was vacant. As such, since opposite party

no.1 was belonging to SEBC (W) category and if one post

belonging to SEBC category was lying vacant, irrespective

of the fact that she had secured less mark than the last

person selected under SEBC category, she should not

have been disentitled to get the appointment under the

reserved category of SEBC (W).

8. It is of relevance to note, since one post of

SEBC (W) was lying vacant, this Court, vide order dated

20.12.2018, directed the petitioner to first implement the

order of the tribunal subject to the result of the writ

petition. The said interim order has been implemented by

the petitioners, vide order dated 05.02.2019, by giving

appointment to opposite party no.1, who is now

continuing in service.

9. In State of Bihar v. The Secretariat Assistant

Successful Examinees' Union, (1994) 1 SCC 126, the

apex Court held that it is now well settled by a series of

decisions of the Supreme Court that the empanelment of

the candidate in the select list does not confer any 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.

Such view has been followed in the cases of

Syndicate Bank v. Shankar Paul, (1997) 6 SCC 584;

Vinodan v. University of Calicut, (2002) 4 SCC 726;

and State of U.P. v. Om Prakash, (2006) 6 SCC 474.

10. In the case of Shankarsan Das v. Union of

India, (1991) 3 SCC 47, the apex Court held as follows:-

"A Constitution Bench of this Court was examining whether candidates declared successful in a selection process acquire an indefeasible right to get appointed amongst available vacancies. The contention that they do acquire such a right was repealed in the following words. "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"."

In view of the aforesaid judgments of the apex Court,

though opposite party no.1 was selected following due

process of selection, but she does not acquire any right to

be appointed automatically. As per such decisions, a

person whose name appears in the select list does not

acquire indefeasible right for appointment. The

empanelment at best is a condition of eligibility for

appointment and does not by itself vest a right to be

appointed.

11. There is no dispute with regard to the settled

position of law, referred to above, but the facts and

circumstances of the present case reveal that though

name of opposite party no.1, who was a SEBC (W)

candidate, was placed in the select list and one vacancy

under the said category was withheld by the petitioners,

she has got a right to be considered for appointment

under reserved quota meant for SEBC (W). In such

circumstance, the ratio decided in the above noted case

cannot come to the aid of the petitioners. Therefore,

considering the above aspects, the tribunal directed the

petitioners to give her appointment and by virtue of the

interim order passed by this Court, she has already been

given appointment. Now, at this stage, nothing more

remains to be adjudicated by this Court. Thereby, while

upholding the impugned order of the tribunal, the interim

order passed by this Court is made absolute.

12. There is thus no merit in this writ petition,

which is accordingly dismissed. There shall be no order

as to costs.

..................................

                                           DR. B.R. SARANGI,
                                                JUDGE


SAVITRI RATHO, J.       I agree.

.................................. SAVITRI RATHO, JUDGE

Orissa High Court, Cuttack The 9th May, 2022, Arun/GDS