Prangya Paramita Harichandan vs Orissa University Of Agriculture
2023 Latest Caselaw 1830 Ori

                IN THE HIGH COURT OF ORISSA AT CUTTACK

                           W.P.(C) No.14758 OF 2015

          (An application under Articles 226 and 227 of the Constitution
          of India)

            Prangya Paramita Harichandan ...                          Petitioner

                                          -versus-

            Orissa University of Agriculture
            and Technology & others          ... Opposite Parties


            Advocates appeared in the case through hybrid mode:

               For Petitioner                    : Ms.Soma Pattnaik,
                                                   Advocate
                                          -versus-

               For Opposite Party
               Nos.1 & 2                            : Mr.S.C.Rath,
                                                      Advocate

                For Opposite Party
                No.3                                 : Mr. Ashutosh Mishra,
                                                         Advocate
                For Opp.Party No.4                    : None
            ---------------------------------------------------------------------------
                CORAM:

                            JUSTICE SASHIKANTA MISHRA

                          JUDGMENT

28.2.2023.

Sashikanta Mishra,J. The Petitioner has filed this Writ Petition

with the following prayer;

"Under the facts and circumstances stated above this Hon'ble Court may be graciously pleased to issue RULE NISI calling upon the Opp.Parties as to why;

(i) The appointment of Opp.Party Nos.3 and 4 shall not be quashed as illegal,

(ii)The petitioner shall not given appointment in the post of Assistant Professor, Animal Reproduction Gynecology with effect from 5.8.2015 with all consequential benefits;

(iii)The entire selection process shall not be quashed being made without following the reservation of law."

2. Pursuant to an advertisement issued on 18th

November, 2014 by the Orissa University of Agriculture

and Technology (OUAT) for appointment to various

posts, the Petitioner applied for the post of Asst.

Professor, Animal Re-production Gynecology as

S.E.B.C. category candidate. As per the advertisement,

four posts were advertised with the following breakup;

U.R.= 1+1(W) = 2 S.E.B.C.= 1(W) S.T. = 1(W)

3. The Petitioner was called upon to attend the meeting

of the Standing Selection Committee on 20th July, 2015

along with her testimonials. She attended the said

meeting and fared well. On 5th August, 2015 the result

was published, but her name did not find place. On

the contrary, she found that two male persons were

selected under the U.R. category even though one of

the posts belonging to such category was reserved for

woman. According to the Petitioner, the Opposite

Party-authorities followed a wrong procedure by not

preparing the select list of all candidates on merit basis

at the first instance. As result, Dr. Basanti Jena, who

secured 37 marks could have been adjusted against

unreserved vacancy for woman and in such event the

Petitioner could have been adjusted against the only

vacancy available for S.E.B.C.(W) category. Thus,

challenging the selection as above, the Petitioner has

approached this Court with the prayer as mentioned

above.

4. A Counter Affidavit has been filed on behalf of

Opposite Party Nos.1 and 2 wherein the facts relating

to advertisement, number of vacancies etc. have been

admitted. The claim of the Petitioner has, however,

been refuted by stating that the selection of candidates

was made in order of merit in respect of unreserved

and reserved categories as per total marks secured by

them in the interview. The Opposite Parties have filled

up the posts first in merit for S.E.B.C.(W) category

candidate and then Unreserved candidates.

The Petitioner filed a rejoinder stating that the

method adopted by the Opposite Party-authorities is

entirely wrong inasmuch as they should have first

prepared the merit list of all candidates and thereafter

applied the horizontal reservation of women.

5. The person placed at Sl. No.2 of the list and

selected as Unreserved candidate (Opposite Party No.3)

has also filed a counter. He has referred to the

provision in the advertisement that in the event of non-

availability or availability of insufficient number of

women candidates belonging to any particular

community, the vacancies shall be filled up by the

male candidates of that community. Since in the

instant case, there were no women candidates in the

Unreserved category, the male candidate, who was

next placed on the merit list, was appointed. The

Petitioner cannot claim double benefit of reservation,

i.e. both as S.E.B.C. candidate and woman candidate.

6. The person selected and placed at Sl. No.1 of the

merit list (Opposite Party No.4) has also filed a counter

affidavit. He has mainly stated that there being no

prayer made by the Petitioner against him, his

impletion as a party to the Writ Petition is entirely

misconceived and unnecessary. On merit, it is

contended that the Petitioner claims appointment

entirely on misconception and erroneous

understanding of the process of selection and

therefore, is not entitled to any relief.

7. Heard Ms. Soma Pattnaik, learned counsel

appearing for the Petitioner, Mr. S.C. Rath, learned

counsel appearing for Opposite Party Nos.1 and 2 and

Mr. Ashutosh Mishra, learned counsel, appearing for

the Opposite Party No.3.

8. Ms. Pattnaik has argued that the methodology

adopted by the Opposite Party-authorities is entirely

erroneous and contrary to the principles of vertical and

horizontal reservations laid down by the Apex Court.

Referring to the observations of the Apex Court in the

case of Rajesh Kumar Daria v. Rajasthan Public

Service Commission and others; reported in (2007) 8

Supreme Court Cases 785, she has argued that the

Opposite Party-authorities ought to have prepared a

merit list of all candidates and thereafter applied the

principle of reservation as per the social reservation

quotas. Had such an exercise been done, Dr. Basanti

Jena, who is placed at Sl. No.3 of the merit list, could

have been adjusted against the U.R. (W) category post.

Instead, the Opposite Party-authorities have appointed

a male person against the category reserved for women

for U.R. candidates. It is further submitted by Ms.

Pattnaik that in such event, the Petitioner being the

only S.E.B.C.(W) candidate left, could have been

appointed against such quota.

9. Mr. S.C.Rath, learned counsel appearing for OUAT,

has referred to the relevant clause of the

advertisement, which states that in the event of non-

availability of women candidates or insufficient

number of women candidates, the male candidates

belonging to the particular community may be

appointed. In the instant case, Dr. Basanti Jena being

a S.E.B.C. (W) candidate was rightly selected for the

said category while there were no women candidates in

the U.R. category for which the next available male

candidate was given appointment.

10. Mr. Ashutosh Mishra, learned counsel appearing

for Opposite Party No.3, also supports the argument

made by Mr. Rath and adds that the Petitioner's claim

is entirely based on misconception and wrong

understanding of the principle to be followed in the

matter of application of horizontal reservations.

11. Having considered the rival contentions as noted

above, this Court feels that the moot question involved

is the correctness of the methodology adopted by the

Opposite Party-authorities. In this regard, it would be

proper to first refer to the advertisement (copy enclosed

as Annexure-1) whereby four vacant posts of Asst.

Professor, Animal Re-production Gynecology were

advertised. The category wise breakup of the said

vacancies was as follows;

U.R.= 1+1(W) = 2 S.E.B.C.= 1(W) S.T. = 1(W)

12. From the merit list enclosed as Annexure-B series

to the Counter Affidavit filed by Opposite Party Nos.1

and 2, it is seen that the candidates were placed in the

following order;

General category

Sl.No. Name of the Candidates Total mark secured out of

Biswal

S.E.B.C. (W) Category Sl.No. Name of the Candidates Total mark secured out of

1 Dr.(Mrs.) Basanti Jena 37

2 Dr. Prangya Parimita 35 Harichandan S.T.(W) Category

Sl.No. Name of the Total mark Candidates secured out of

1 No candidates available

13. According to Ms. Pattnaik, Dr. Basanti Jena

should have been adjusted against the against the

U.R.(W) vacancy instead of selecting Dr. S.S. Biswal

against such post. She has relied upon the decision of

the Apex Court in the case of Rajesh Kumar Daria

(supra). Upon a careful reading of the decision of the

Apex Court in the said case, this Court is unable to

accept the contentions advanced by Ms. Pattnaik for

the reasons indicated hereinafter.

14. In the case of Rajesh Kumar Daria (supra), the

Apex Court referred to the following observation made

by it in the case of Anil Kumar Gupta v. State of

U.P.; reported in 1995 (5) SCC 173;

" The proper and correct course is to first fill up the OC quota (50%) on the basis of merit; then fill up each of the social

reservation quotas i.e. SC, ST and BC; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied-in case it is an overall horizontal reservation-no further question arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates there from. If, however, it is a case of compartmentalized horizontal reservation, then the process of verification and adjustment/ accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen per cent in favour of special categories, overall, may be satisfied or may not be satisfied."

(emphasis supplied)

In Paragraph-9 of the said judgment, the Apex Court held as under;

"9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are "vertical reservations". Special reservations in favour of physically handicapped, women, etc., under Articles 16(1) or 15(3) are "horizontal reservations". Where a vertical reservation is made in favour of a Backward Class under Article 16(4),

the candidates belonging to such Backward Class, may compete for non- reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. (Vide Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] , R.K. Sabharwal v. State of Punjab [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] , Union of India v. Virpal Singh Chauhan [(1995) 6 SCC 684 :

1996 SCC (L&S) 1 : (1995) 31 ATC 813] and Ritesh R. Sah v. Dr. Y.L.

Yamul [(1996) 3 SCC 253].) But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of "Scheduled Caste women". If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the

special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women. Let us illustrate by an example:

If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC woman candidates, then there is no need to disturb the list by including any further SC woman candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four woman SC candidates. (But if the list of 19 SC candidates contains more than four woman candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess woman candidates on the ground that "SC women" have been selected in excess of the prescribed internal quota of four.)"

(Emphasis supplied)

15. Thus, it is evident that the principle of mobility

as applicable in case of social (vertical) reservations

are not applicable to special (horizontal) reservation.

This implies that the special reservations like women

etc. have to be confined to their respective social

categories. Of course, the procedure to be followed is-

first, a merit list is to be drawn up of all candidates

irrespective of their categories in the order of merit.

The next step would be to fill up the social reservation

quota i.e. S.C., S.T., SEBC etc. It is after this stage

that the adjustment of special category candidates

like women have to be considered against each social

category to see whether the requirement of having a

particular number of special category candidates in

each social reservation category is fulfilled. If it is

found that in a particular category there is a short fall

of women candidates, then the requisite number of

such candidates shall have to be taken and

adjusted/accommodated against their respective

social reservation categories. It has been argued that

Dr. Basanti Jena having secured 37 marks should

have been placed at Sl. No.2 in the merit list. This is

entirely fallacious inasmuch as on merit Dr.

S.S.Biswal is found to have secured more marks than

her i.e., 38.

16. Coming to the horizontal reservation, it is seen

that there is no woman candidate available under the

U.R. category. The principle that Ms. Pattnaik has

harped upon is applied in case of vertical reservation

but not for horizontal reservation. For instance, while

preparing a common merit list, if it is found that a

reserved category candidate has earned his place by

dint of his own merit rather than reservation, then he

is to be treated as U.R. candidate without deleting his

quota from the category to which he belongs.

However, as emphasized by the Apex Court in the

case of Rajesh Kumar Daria (supra), this principle

does not apply to horizontal reservations inasmuch as

the specially reserved candidates are to be

adjusted/accommodated only against the category to

which they belong.

17. Coming to the facts of the case again, it is seen

that Dr. S.S.Biswal secured more marks than Dr.

Basanti Jena. The advertisement provides that in case

of non-availability of women candidates of a

particular quota, the same shall be filled up by a

male candidate. If the contention of Ms.Pattnaik is

accepted, it would imply not giving appointment to

Dr. S.S.Biswal, who is more meritorious than Dr.

Basanti Jena in terms of marks secured. The

Petitioner has based her case entirely on the

supposition that Dr.Basanti Jena should have been

adjusted against U.R. category. For the reasons

indicated, this Court is unable to accept such

argument. This Court finds that Dr. Basanti Jena has

been rightly accommodated under S.E.B.C(W)

category. The above would be clear from the

illustrations cited by the Apex Court in the case of

Rajesh Kumar Daria (supra), under Paragraph-9

which is already quoted hereinbefore.

If the Petitioner's case is accepted, it would

imply that the authorities were bound to appoint a

woman candidate belonging to any category, if there

was a shortfall in the U.R. category.

18. The point of view put forth by the Petitioner

would have been acceptable had Dr.Basanti Jena

been a U.R. candidate. In such situation, despite

scoring less marks than Dr. S.S.Biswal she could

have been accommodated against the vacancy of 1

(W) U.R. quota, but Dr. Basanti Jena had applied as

a S.E.B.C. candidate and therefore, she can only be

considered, in so far as horizontal reservation is

concerned against S.E.B.C. category and not any

other category.

19. From a conspectus of the analysis of the

discussions made hereinbefore, this Court finds

nothing wrong in the methodology adopted by the

Opposite Party-authorities in filling up the post of

Asst. Professor, Animal Re-production Gynecology, so

as to be persuaded to interfere therewith.

20. In the result, the Writ Petition is found devoid of

any merit and is therefore, dismissed. No order as to

costs.

.................................. Sashikanta Mishra, Judge

Ashok Kumar Behera