Orissa High Court
Raghunath Mishra vs State Of Odisha And Others on 12 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No.1088 of 2022
Raghunath Mishra .... Appellant
Mr. Sidheswar Mallik, Advocate
-versus-
State of Odisha and others .... Respondents
Mr. Manoj Kumar Khuntia, Additional Government Advocate
CORAM:
THE CHIEF JUSTICE
JUSTICE G. SATAPATHY
ORDER
12.04.2023
Order No.
Dr. S. Muralidhar, CJ.
04. 1. The challenge in the present appeal is to a judgment dated 14th
July, 2022 passed by the learned Single Judge allowing W.P.(C)
No.10925 of 2014 filed by Respondent No.4 and accepting his plea
that the rejection of his candidature for the post of Multipurpose
Health Worker (MHW) (Male) under the NVBDCP Project in the
district of Keonjhar was erroneous. By the impugned judgment, a
mandamus has been issued to the State Government to consider the
claim of the Respondent No.4 for appointment as MHW(Male)
under the Physically Handicapped (PH) category within a period of
four months from the date of the copy of the order.
2. The present Appellant was Opposite Party No.4 in the
aforementioned writ petition. His appointment as MHW(Male) was
challenged by the Respondent No.4 herein first by a representation
made by Respondent No.4 to the authorities, which stood rejected
on 29th January, 2014. Thereafter, W.P.(C) No.10925 of 2014 was
filed in this Court. Since there was no interim order staying the
appointment of the present Appellant, he has continued as such till
the passing of the impugned judgment on 14th July, 2022 and even
thereafter during the pendency of the present appeal.
3. At the outset, it must be observed that at the hearing of this
appeal on 7th December, 2022, this Court had required the learned
Additional Government Advocate (AGA) to seek instruction
regarding the availability of any vacancy in the post of MHW under
the PH category for adjustment of the present Appellant. The case
was further adjourned on 4th January, 2023 and 27th February, 2023
for that purpose.
4. Today, Mr. Manoj Kumar Khuntia, learned AGA, informs the
Court that there is in fact no vacancy in the post of MHW available
against which the Appellant could be adjusted.
5. The facts in brief are that both Respondent No.4 and the present
Appellant applied in the prescribed format for the above post of
MHW(Male) pursuant to the advertisement issued by the Chief
District Medical Officer (CDMO), Keonjhar. While the application
form contained columns that provided for name, father's name,
address etc., it only provided in column 7 details to be given of
'Caste'. There was no separate column for the applicant to indicate
whether he/she belongs to the PH category.
6. As it transpired while the present Appellant indicated in column
7, which pertained to, 'Caste', that he belongs to the PH category,
Respondent No.4, who was also a PH person did not indicate that
fact. Respondent No.4 mentioned therein that he belongs to the
unreserved (UR) category. Nevertheless, Respondent No.4 also
enclosed with his application, his disability certificate. It is not in
dispute that the percentage of disability of Respondent No.4 is
greater than the disability percentage of the Appellant.
Academically, also Respondent No.4 had secured higher marks in
the Diploma in Pharmacy, which was an essential qualification for
the post.
7. The CDMO considered the case of Respondent No.4 only in
terms of his UR category and not in the category of PH. The
appointment was given to the present Appellant in the PH category.
This was challenged by Respondent No.4.
8. The learned Single Judge has, after analyzing in great detail the
facts of the entire case, come to the conclusion that the rejection of
the candidature of Respondent No.4 without considering his
disability was arbitrary, particularly since there was no provision
made in the application form for Respondent No.4 to indicate, in
the application form itself, that he belongs to the PH category. After
making a comparative assessment of the candidature of both the
Appellant and Respondent No.4, the learned Single Judge found
that in terms of disability percentage, it was 45% in the case of
Respondent No.4 as compared to 40% of the present Appellant.
Even in terms of marks secured in the Diploma in Pharmacy, it was
61.88% for Respondent No.4 compared to the Appellant's 60.24%.
9. This Court has heard the submissions of learned counsel for the
parties and has also examined the documents placed on record apart
from the impugned order of the learned Single Judge. The
reservation for the PH category was no doubt mentioned that the
advertisement which set out the proforma of the application form.
Admittedly, there was no column in the application form for an
applicant to indicate whether he or she belongs to the PH category.
Consequently, Respondent No.4 could not be faulted for not
mentioning the application form itself that he belongs to the PH
category. The fact remains that he did enclose his disability
certificate with his application form. Therefore, the CDMO could
not plead ignorance of the fact that Respondent No.4 belonged to
the PH category and could rightfully claim to be considered under
that category. The PH reservation is a horizontal reservation that
cuts across all categories. In other words, merely because
Respondent No.4 belongs to the UR category, his claim to be
considered in the PH category would not be precluded.
10. Given the fact that Respondent No.4 has a higher degree of
disability and has also secured more marks in the Diploma, which
was pre-requisite for being considered for appointment to the post
of MHW, the Court is unable to find any error having been
committed by the learned Single Judge in accepting the candidature
of Respondent No.4 over that of the present Appellant and issuing
the impugned directions. No ground is made out for interference the
impugned order of the learned Single Judge.
11. At this juncture, learned counsel for the Appellant submitted
that he has definite information available which would show that
there are vacancies in the Department against which the Appellant
could be accommodated. It is clarified that this judgment will not
preclude the Appellant from representing to the CDMO, Keonjhar
for accommodation in any other vacancy that may be available.
Such representation when made will be considered on its own
merits. This will not however, come in the way of the impugned
judgment of the learned Single Judge being implemented by the
CDMO in letter and spirit. If not already done, the judgment of the
Single Judge should be implemented not later than four weeks from
today.
12. The writ appeal is dismissed with the above observations.
(Dr. S. Muralidhar)
Chief Justice
(G. Satapathy)
Judge
Priyajit
