Orissa High Court
Afr Jayashree Dhal vs State Of Odisha & Others on 20 September, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC (OAC) No. 4369 of 2010
An application under Articles 226 & 227 of Constitution of
India.
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AFR Jayashree Dhal ...... Petitioner
-Versus-
State of Odisha & others ....... Opp. Parties
Advocate(s) appeared in this case:-
_______________________________________________________
For Petitioner : M/s. J.K. Rath, Sr. Advocate
with Mr. D.N. Rath, Advocate
For Opp. Parties : Mr. P. Bharadwaj,
Addl. Standing Counsel
Mr. S.B. Jena, Advocate
[ for O.P. Nos.2 & 3- OPSC]
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
20th September, 2022
SASHIKANTA MISHRA, J.
Pursuant to an advertisement issued by Odisha
Public Service Commission (OPSC) on 19.08.2006 for
conduct of Odisha Civil Services Examination, 2006 for
recruitment to different posts/services in Category -I and II
of Odisha Civil Services, the petitioner submitted her
application. Having qualified in the preliminary test, the
petitioner was called upon to appear in the main
examination held from 22.07.2009 to 20.08.2009. The
petitioner claims to have been successful in the main
written examination. She was called upon to attend
Personality Test (Viva Voce). The final merit list of
successful candidates was published but the petitioner's
name did not appear therein. The petitioner sought for
information from the OPSC on 29.05.2010 to furnish the
category-wise details pertaining to cut off marks for
Unreserved (UR) and SEBC category and the marks
secured by the last UR and SEBC successful candidates.
The said request was however turned down by the OPSC. It
is stated that the petitioner is a woman category and is
therefore entitled to be considered within the 33.33%
reservation for women. The number of posts advertised was
380 but 378 persons were declared successful. According
to the petitioner, 50% of the total advertised posts being
190, 63 posts were required to be reserved for women
being to the extent of 33.33%. It is also stated that
originally the percentage of reservation for a SEBC
candidate was 27% but in view of certain litigations and
order passed by this Court the said quota was reduced to
11.2%. According to the petitioner, 21 posts thus reserved
for SEBC ought to have been added in the UR category in
which event the posts reserved for women category would
have been increased from 63 to 69. On such facts, the
petitioner approached erstwhile the Odisha Administrative
Tribunal seeking the following relief:
"In view of the facts mention in paragraph-6 above,
the applicant prays for the following relief(s).
Under the above circumstances, it is
therefore, humbly prayed that this Hon'ble
Tribunal be graciously pleased to direct the
opposite party no.2 to recommend the names of the
petitioner to the opposite party no.1 under
unreserved women category since there is no
proper representation in the said category. The
petitioner has qualified both in the main written
examination and as well as the personality test
and to the best of the information/knowledge of the
petitioner, the petitioner's position comes within the
said merit list.
And this Hon'ble Tribunal be pleased to
direct the opposite parties to divert the left out 21
posts, which were kept for SEBC pertaining to the
said recruitment examination, to the General
category as per the decision made by this Hon'ble
Tribunal and as well as by this Hon'ble High Court
that for SEBC category, the reservation fixed to
11.25 % and the excess reservation made for SEBC
was diverted from un-reserved category post."
The said Original Application has since been transferred to
this Court and registered as the instant Writ Petition.
2. Counter affidavit has been filed by opposite
party no.1, wherein it is stated that 33.33% reservation for
women out of 190 UR category comes to about 62. Out of
such 62 posts, some SC, ST, SEBC/OBC candidates were
selected by OPSC and given appointment in view of the
principle that UR vacancies are open to all categories of
candidates.
3. Counter affidavit has been filed by OPSC
(opposite parties No. 2 and 3). It is specifically stated in the
counter that the name of the applicant (petitioner) was not
recommended by the Commission in the selection list sent
to the Government due to her lower position in the final
merit list. Referring to the Government Circulars dated
23.07.1997 and 15.03.1999, it is stated that the UR
vacancies are open to all category of candidates.
Accordingly, the Commission, recommended names of
suitable candidates against UR vacancies (including
Women) in view of their respective merit. The allegation
that less number of women candidates under UR category
were recommended was specifically denied as false.
4. The petitioner filed a rejoinder to the counter
affidavits filed by opposite party No.1 and opposite parties
Nos.2 and 3. The allegation made in the writ petition
regarding reduction of the percentage of posts of general
category (UR posts) being allotted to SEBC category, was
reiterated. It was stated that this resulted in exceeding the
50% limit of reservation. It is further stated that the
Government Circulars referred to in the counter affidavits
are not applicable to the case of the petitioner and that
33.33% quota is required to be maintained for all
categories. Referring to the counter filed by the State that
62 posts were reserved for women, it is stated that the
number ought to have been 63, which therefore implies
that one less candidate was recommended.
5. The State filed a counter reply to the rejoinder
filed by the petitioner specifically denying the allegation
that less number of women candidates under UR category
were recommended and that reserved category candidates
were given place under the said quota.
6. Heard Mr. J.K. Rath, learned Senior Council
appearing along with Mr. D.N. Rath, learned counsel for
the petitioner, Mr. P. Bharadwaj, learned Addl. Standing
Counsel for the State and Mr. S.B. Jena, learned counsel
appearing for OPSC.
7. According to learned Senior Counsel, Mr.
Rath, the calculation of number of women candidates
under the 33.33% quota is wrong, inasmuch as the total
posts under UR category being 190, 63 posts were required
to be earmarked for women. The petitioner being a woman
stakes her claim under this category. However the OPSC
wrongly considered women candidates from other
categories particularly from SCBC in the UR category,
which is completely illegal. It is further contended by Mr.
Rath that only 45 women candidates were recommended
for appointment in place of 63. It is further submitted that
out of 380 posts, 378 persons were recommended leaving
two posts vacant. Further, out of the said 378 candidates
recommended, two candidates did not join and five
candidates could not produce the required testimonials. As
such, 371 candidates ultimately joined the service leaving
nine vacancies.
8. Mr. P. Bhardwaj, on the other hand, has
argued that the State has acted upon the
recommendations made by the OPSC because the same
was found to be in consonance with its requisition as also
the settled position of law governing reservations for
different categories including women. It is further
submitted that a candidate, irrespective of the category to
which she belongs can compete under the UR category on
merit and therefore, it is wrong on the part of the petitioner
to say that other category candidates could not have been
considered under the UR category.
9. Mr. S.B. Jena appearing for the OPSC while
adopting the arguments made by Mr. Bhardwaj has further
contended that 63 women candidates were required to be
appointed under UR category. As per the settled position of
law, UR category is open to all candidates on the basis of
their respective merits. In the instant case, considering the
relative merit of the candidates, including all categories, it
is found that out of 190 candidates required to be
recommended under the UR category, 63 were women,
which fulfilled the 33.33% criteria. Though some
SC/ST/SEBC candidates may have been so recommended
yet the same was on the basis of their higher merit and
therefore, no illegality whatsoever was committed.
10. After hearing learned counsel for the parties at
length, this Court is of the view that the lis lies within a
narrow compass, firstly, whether 33.33% of posts was
reserved for women candidates in the UR category and
secondly, whether the petitioner was eligible to be
recommended for appointment.
11. Before proceeding to answer the
aforementioned points, it would be profitable to briefly refer
to the settled position of law with regard to reservation.
12. In Indra Sahwney vs. Union of India,
reported in 1992 Supp (3) SCC 217, the Supreme Court
observed as follows:
".....There are two types of reservations, which
may, for the sake of convenience, be referred to as
'vertical reservations' and 'horizontal reservations'.
The reservations in favour of Scheduled Castes,
Scheduled Tribes and other backward classes
under Article 16(4) may be called vertical
reservations whereas reservations in favour of
physically handicapped under clause 1 of Article
16 can be referred to as horizontal reservations.
Horizontal reservations cut across the vertical
reservations - what is called interlocking
reservations....."
In Rajesh Kumar Daria vs. Rajasthan
Public Service Commission, reported in (2007) 8 SCC
785, the Supreme Court has said that Article 16(4) relates
to social reservation whereas Article 15(3) providing for
reservation for women in respect of employment is a
special reservation and also explained the principles of
implementation of such reservations in the following
manner:
1. Where a vertical reservation is made in favour of
a Backward Class, the candidates in this category
may compete for open or general category.
2. If they are appointed on merit in the general
category their number will not be counted against
the backward class category and, as such, it
cannot be considered that the vertical reservations
have been filled up to the extent candidates of this
category have migrated to the open category on
merit.
3. This means that the entire vertical reservation
remains intact and unaffected and will be
available in addition to those selected in general
category competition
4. However, the above principles applicable to
vertical reservation will not apply to horizontal
(special) reservation.
5. Where a special reservation for women is
provided within the vertical (social) reservation the
following method of implementation is to be
followed:
a. First, the quota of vertical reservation is to be
filled up in order of merit.
b. Second, the remaining number of candidates
among the vertical reservation (e.g., Schedule
Caste women) has to be determined.
c. Third, if the number of such Schedule Caste
women in the vertical reservation is equal to
or more than the horizontal reservation for
inter-alia women under Article 15(3) often
referred to as special reservation then there
is no need for further selection to the special
reservation quota.
d. If, however, there is any shortfall, the
requisite number of Schedule Caste women
shall have to be taken by deleting the
corresponding number of candidates
belonging to Schedule Castes.
It was pointed out that "women selected on merit within
the vertical reservation quota will be counted against the
horizontal reservation for women."
In case of Ramesh Ram vs. Union of India,
reported in (2010) 7 SCC 234, the Apex Court held that a
policy of the State to fill up unfilled horizontal reservation
by the candidates for vertical reservation cannot be faulted.
13. Approving the view taken in Rajesh Kumar
Daria (supra) the Supreme Court in the case of Saurav
Yadav v. State of U.P., AIR 2021 SC 233: (2021) 4 SCC
542 held that the first rule that applies to filling horizontal
reservation quotas is one of adjustment i.e. examining
whether on merit any of the horizontal categories are
adjusted in the merit list in the open category, and then, in
the quota for such horizontal category within the particular
specified/social reservation. The long settled principle that
mobility ("migration") from the reserved (specified category)
to the unreserved (open category) slot is possible, is based
on meritorious performance.
Coming to the present case, it is undisputed
that the petitioner belongs to the Unreserved Category and
therefore she has to compete on merit under such category
alone including the special reservation for women namely
33.33%.
14. In course of hearing, being directed by this
Court, the OPSC has filed two further affidavits. In the first
affidavit sworn on 11.05.2022 by the Additional Secretary
of OPSC a detailed breakup of the category wise vacancies
and number of candidates recommended has been given.
Originally, the vacancy position was notified as follows:
Category Vacancy
UR 124 (41-W)
S.E.B.C. 104 (33-W)
SC 60(17-W)
ST 92(32-W)
Total 380 (123-W)
However, because of various orders passed by the Odisha
Administrative Tribunal, the percentage of reservation for
SEBC category was reduced from 27% to 11.25% and
accordingly, the vacancy position was worked out as
follows:
Category Vacancy
Out of 380 vacancies, the Commission recommended a
total of 378 candidates including 126 women, the breakup
of which is as follows;
No. of
Category Vacancy Candidates
recommended
UR 190 100 (34-W)
S.E.B.C. 42 122 (41-W)
SC 62 70 (22-W)
ST 86 86 (29-W)
Total 380 378 (126-W)
As it appears, as against the original vacancy position of
respective categories, particularly, SEBC and SC, some
excess candidates have been appointed. In the SEBC
category 80 candidates in excess have been appointed but
they are said to come under the UR category by virtue of
their merit. Similarly, 8 candidates belonging to SC
category were recommended in excess and clubbed in UR
category because of their higher position in merit.
Ultimately, the candidates and women candidates
recommended from each category are as follows:
Women
Category Vacancy candidates
recommended
Thus, if the tables quoted above are analyzed, it would be
evident that out of 190 candidates recommended, 80 from
SEBC category and 8 from SC category were so
recommended on the basis of their own merit and
therefore, rightly included in the UR category. The
remaining 102 candidates were of UR category. Out of such
190 candidates, 63 candidates were women, from whom 41
women were from SEBC category and 22 women were from
SC category. It is submitted on affidavit by the OPSC that
all the 63 women candidates were recommended under the
UR category by virtue of their merit. This Court finds no
reason to doubt the affidavit filed by the Additional
Secretary of the OPSC.
As directed, learned counsel for the OPSC has
also produced the concerned file relating to recruitment of
OCS (2006) (File No. LE-I-2010/11, Volume-III). The
proceeding of the Selection Board for recruitment to
Odisha Civil Services (2006) is contained at pages 112, 111
and 110. A category-wise break up of successful
candidates is available at page -109 of the said file. Apart
from the figures referred to hereinbefore, it mentions that
34 women candidates belonging to UR category were also
selected in the said category over and above 22 women
candidates under SC category, 29 under ST category and
41 under SEBC category.
15. In view of the settled position of law relating to
the horizontal and vertical reservations, this Court finds no
infirmity much less any illegality in the recommendations
made by the OPSC of women candidates under different
categories. This answers the first point framed for
determination.
16. Coming to the second point, given the fact
situation narrated in the preceding paragraphs, it is
evident that the petitioner being an UR category candidate,
would have been eligible for recommendation had her
performance being equal to or more than the last person
selected in UR category. As is also seen, 34 candidates
were selected under UR category. Being directed again, the
OPSC filed another affidavit sworn by the Additional
Secretary on 01.08.2022, wherein it is stated under
Paragraph-4 as follows:
"That on verification of merit list of Odisha Civil
Service 2006 it is found that the last candidate of
UR (W) selection in Odisha Civil Service 2006 is
Madhusmita Mohapatra Roll No. 134629 and on
verification of tabulation sheet it is seen that
Madhusmita Mohapatra has Secured 1186 marks
(1016 marks in main written examination plus 170
marks in viva-voce test) and as regards to the
petitioner's position in final list, it is submitted that
the petitioner's Roll number is 116447 and her
position is 286 and the marks secured is 1144
(974 in main written examination plus 170 marks
in viva-voce test)."
17. This Court finds no reason to disbelieve the
sworn affidavit by the Additional Secretary of OPSC nor
any material is forthcoming from the side of the petitioner
to dispute the correctness of the averments made therein.
It is therefore evident that the petitioner not having
secured the required marks for being recommended, no
relief can be granted to her in the instant writ petition.
18. For the foregoing reasons therefore, the writ
petition is found to be devoid of merit and is therefore,
dismissed. There shall be no other as to costs.
.................................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack,
The 20th September, 2022/ A.K. Rana, P.A.
