Ranjit Kumar Sarangi vs State Of Odisha & Others
2023 Latest Caselaw 4871 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                   WPC (OAC ) NO.188 of 2016
       In the matter of an application under Section 19
            of the Administrative Tribunals' Act, 1985.
                            ..................

      Ranjit Kumar Sarangi                      ....            Petitioner


                                   -versus-


      State of Odisha & Others                  ....        Opposite Parties


               For Petitioner               :M/s. B. Dash, Advocate

               For Opp. Parties             :M/s. Y.S.P. Babu, A.G.A.
                                             M/s. A.R. Mohanty, Adv.
                                             (for Opp. Party No.4)
                                             M/s. A.C. Panda, Adv.
                                             (for Opp. Party No.5)

      PRESENT:

      THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
     ---------------------------------------------------------------------------------------
     Date of Hearing: 04.04.2023 and Date of Judgment: 02.05.2022
     --------------------------------------------------------------------------------------

Biraja Prasanna Satapathy, J.

The present Writ Petition has been filed challenging the

selection of Opp. Party Nos.4 to 6 and with a further prayer

to select the Petitioner for the post of Excise Constable.

2. It is the case of the Petitioner that Odisha Subordinate

Staff Selection Commission (in short, <the Commission=) vide // 2 //

Notification dated 15.09.2014 invited applications to fill up

256 posts of Excise Constable. Subsequently, after making

certain corrections, the Commission again issued another

notification on dated 25.10.2014 under Annexure-1 to fill up

256 posts of Excise Constable. Pursuant to the aforesaid

Notification under Annexure-1, the Petitioner duly

participated in the selection process and though was found

eligible for selection, but because of the selection of Opp.

Party No.4 as against UR vacancy, even though he made his

application as a reserved category candidate, the Petitioner

was deprived from the purview of selection. It is also case of

the Petitioner that even though Petitioner and Respondent

Nos.5 & 6 secured similar mark, but the Petitioner taking

into account his seniority in age, should have been preferred

as against Respondent No.5 and 6. Making all such

allegation, the present Writ Petition was filed challenging the

selection of Opp. Party Nos.4 to 6 with a prayer to direct the

Opp. Parties to select the applicant as Excise Constable.

3. Mr. B. Dash, learned counsel appearing for the

Petitioner contended that pursuant to the advertisement

issued by the Commission on 25.10.2014 under Annexure-1,

the Petitioner made his application as an UR candidate and

// 3 //

the Opp. Party No.4 made his application as a reserved

category candidate having belong to S.T category.

3.1. It is contended that in the advertisement issued under

Annexure-1, the prescribed height for UR category was 168

cm. and for S.T candidate, it was 163 cm. Opp. Party No.4

since was not having the prescribed height of 168 cm., he

made his application as a reserved category candidate and

after availing the benefit of relaxation in his height, he was

allowed to take part in the physical standard test. It is

contended that since Opp. Party No.4 availed the benefit of

relaxation in height as a reserved category candidate and

accordingly participated in the selection process, he should

not have been selected as against vacancies meant for UR

category. Because of such selection and appointment of

Opp. Party No.4 as against UR vacancy, the Petitioner was

deprived from the purview of selection.

3.2. It is also contended that even though the Petitioner and

the Opp.Party Nos.5 & 6 secured similar percentage of mark,

but the Commission recommended the name of Opp. Party

Nos.5 & 6 ignoring the claim of the Petitioner. It is

contended that as provided under Rule 14 (IV ) of the Orissa

Subordinate Staff Selection Commission (District Cadre)

Rules, 2012, if two or more candidates obtain equal marks

// 4 //

in the aggregate, the order of merit shall be determined in

accordance with the marks secured by such candidate in

their respective academic career and if the mark thus

secured are also equal, then merit shall be decided according

to their seniority in age.

3.3. Placing reliance on the said Rules, learned counsel for

the Petitioner contended that the Petitioner and Opp. Party

Nos.5 & 6 since secured similar mark, taking into account

the age of the Petitioner, he should have been preferred as

against Opp. Party Nos.5 & 6. It is accordingly contended

that since the Opp. Party-Commission did not follow the

relevant recruitment Rules and the decision Governing the

field with regard to extension of benefit of reserved category

candidate as against UR vacancies after availing any

relaxation, the selection of Opp. Party Nos.4,5 & 6 is not

sustainable in the eye of law and requires interference of this

Court.

4. Mr. Y.S.P. Babu, learned A.G.A on the other hand made

his submission basing on the stand taken in the counter

affidavit, so filed by Opp. Party Nos.2 & 3.

4.1. It is contended that the Petitioner having belong to UR

category and taking into account the marks secured by him,

he was included in the select list in the UR category with 191

// 5 //

rank in the common merit list, 181 rank in the State rank

and 9th position in the district rank. It is contended that

since the private Opp. Party No.4 secured 49 marks which is

higher than the present petitioner, he was selected and

appointed as against UR vacancy and no illegality was

committed by the Commission in recommending his name

and consequential appointment of the said Opp. Party No.4

as against UR vacancy.

4.2. With regard to the allegation made against Opp. Party

Nos.5 & 6, it is contended that even though the Petitioner

and Opp. Party Nos.5 & 6 scored similar mark, but taking

into account their academic career, i.e. the marks secured in

the H.S.C examination, they were placed at Sl. Nos.7 & 8 in

the district merit list and the Petitioner at Sl. No.9.

Accordingly, it is contended that taking into account the

mark secured in the H.S.C examination and as provided

under the 2012 Rules, Opp. Party Nos.5 & 6 were placed

above the Petitioner in the merit list. It is accordingly

contended that no illegality has been committed by the

Commission in recommending the names of Opp. Party Nos.5

& 6 for their appointment.

5. To the aforesaid submission of learned A.G.A, Mr. B.

Dash, learned counsel appearing for the Petitioner contended

// 6 //

that the Home Department issued a clarification on

15.12.006 under Annexure-7 holding therein that in the

process of recruitment of Constable and Sepoys, weightage

given to S.C & S.T candidates should not be taken up while

filling up the vacancies in UR category and that the

relaxation of age etc. admissible to the candidates belong to

S.C & S.T will continue to be available to them even when

they were considered for General (UR) category of post.

However, the aforesaid clarification issued by the Home Deptt

on 15.12.2006 under Annexure-7, was challenged before the

Tribunal in O.A. No.1815(C ) of 2008. The Tribunal vide a

common order passed on 13.09.2007 was pleased to quash

the clarification so issued on 15.12.2006 under Annexure-7.

The said order was also confirmed by this Court vide its

order dated 15.12.2011 in W.P.(C ) No.20249 of 2009 and

batch. It is also contended that the order passed by this

Court on 15.12.2011 was also confirmed by the Hon'ble Apex

Court in Special Leave to Appeal No.1979-1981 of 2013 vide

order dated 14.01.2016. It is accordingly contended that in

view of the quashing of the clarification so issued by the

Home Deptt. On 15.12.2006 under Annexure-7, the stand

taken by the Opp. Parties with regard to extension of the

benefit in favour of Opp. Party No.4 as against UR vacancy

// 7 //

after allowing him the benefit of relaxation of height is not

sustainable.

5.1. Mr. Dash, learned counsel also relied on a decision

of the Hon'ble Apex Court in the case of Niravkumar

Dilipbhai Makwana Vs Gujarat Public Service

Commission and Others, reported in (2019) 7 SCC 383.

The Hon'ble Apex Court in paragraphs 21 to 24, 27 & 30 has

held as follows:

21. In the advertisement published by the GPSC inviting applications from the eligible candidates for the post of ACF (Class II) and RFO (Class II) dated 01.03.2010, upper age limit relaxation was granted to the candidates belonging to SC/ST and SEBC category. It was also specifically stated in the advertisement that if any candidate belonging to reserved category who applies in the open category, such candidate would not get the benefit of age relaxation. Such age relaxation was granted in pursuance to Rule 8 of Rules of 1967.

"8. Condition as to prescribed qualifications:

                1) xxxx
                2) Where the prescribed            qualification

include a qualification as to age limit the appointing authority may relax the age limit in favour of candidates belonging to the Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Class and in favour of candidate who are women to the following extent, that is to say:

(a) in the case of a service or post in a subordinate service or of a State Service in respect of which the prescribed age limit does not exceed forty years, the age limit may be relaxed to the extent of five years.

(b) in the case of service or post in the State Service in respect of which prescribed age limit exceeds forty years, the age limit may be relaxed to the extent of maximum five years, so as to provide that upper age limit for entry in the service does not exceed forty five years."

22. Article 16(4) of the Constitution is an enabling provision empowering the State to make any provision or

// 8 //

reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the service under the State. It is purely a matter of discretion of the State Government to formulate a policy for concession, exemption, preference or relaxation either conditionally or unconditionally in favour of the backward classes of citizens. The reservation being the enabling provision, the manner and the extent to which reservation is provided has to be spelled out from the orders issued by the Government from time to time.

23. In the instant case, State Government has framed policy for the grant of reservation in favour of SC/ST and OBC by the Circulars dated 21.01.2000 and 23.07.2004. The State Government has clarified that when a relaxed standard is applied in selecting a candidate for SC/ST, SEBC category in the age limit, experience, qualification, permitting number of chances in the written examination etc., then candidate of such category selected in the said manner, shall have to be considered only against his/her reserved post. Such a candidate would be deemed as unavailable for consideration against unreserved post.

24. Now, let us consider the judgment in Jitendra Kumar Singh (supra). In this case, this Court was considering the interpretation of Subsection (6) of Section 3 of U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (for short "1994 Act") and the Government Instructions dated 25.03.1994. Sub section (6) of Section 3 of this Act provided for reservation in favour of Scheduled Castes, Scheduled Tribes and other Backward Classes which is as under:

"3. (6) If a person belonging to any categories mentioned in subsection (1) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under subsection (1)."

xxx xxx xxx xxx

27. In Deepa, the appellant had applied for the post of Laboratory Assistant Grade II in Export Inspection Council of India functioning under the Ministry of Commerce and Industry, Government of India under OBC category by availing age relaxation. The Department of Personnel and Training had issued proceedings O.M. dated 22.05.1989 laying down the stipulation to be followed by various Ministries/Departments for

// 9 //

recruitment to various posts under the Central Government and the reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes candidates. Paragraph 3 of the said O.M. is as under:

"3. In this connection, it is clarified that only such SC/ST/OBC candidates who are selected on the same standards as applied to general candidates shall not be adjusted against reserved vacancies."

xxx xxx xxx xxx

30. Taking into consideration the above circular, this Court held that the ratio of the judgment in Jitendra Kumar Singh (supra) has to be read in the context of statutory provisions and the GO dated 25.03.1994 and the said observation cannot be applied in a case where the Government Orders are to the converse effect. It was held as under:

"32. We are of the view that the judgment of this Court in Jitendra Kumar Singh which was based on statutory scheme and the Circular dated 2531994 has to be confined to scheme which was under consideration, statutory scheme and intention of the State Government as indicated from the said scheme cannot be extended to a State where the State circulars are to the contrary especially when there is no challenge before us to the converse scheme as delineated by the Circular dated 24.6.2008."

It is accordingly contended that since the Opp. Party

No.4 availed the benefit of relaxation of height as a reserve

category candidate, he should not have been considered as

against UR vacancy and his selection as such is not

sustainable in the eye of law.

6. Mr. Ashish Ranjan Mohanty, learned counsel appearing

for Opp. Party No.4 on the other hand made his submission

basing on the stand taken in the counter affidavit so filed by

Opp. Party No.4. It is contended that even though the Opp.

Party No.4 availed the benefit of relaxation of height having

// 10 //

belong to Scheduled Tribe category, but since the Opp. Party

No.4 secured more mark than the Petitioner, he has been

rightly selected as against UR category. It is also contended

that since the Petitioner after being selected, is continuing

since 2015, he will be seriously prejudiced, if his selection is

set aside in any manner for no fault of his own.

7. Learned counsel appearing for Opp. Party No.5 also

made his submission basing on the stand taken in the

counter affidavit.

It is contended that even though the Petitioner and

Opp. Party No.5 secured the same mark, but as provided

under the 2012 Rules, Opp. Party No.5 having secured more

mark in the HSC examination, he was rightly selected and no

illegality has been committed.

8. I have heard Mr. B. Dash, learned counsel appearing for

the Petitioner, Mr. Y.S.P. Baby, learned Additional Govt.

Advocate appearing for the State-Opp. Parties, Mr. A.R.

Mohanty, learned counsel for Opp. Party No.4 and Mr.

Ramesh Chandra Panda, learned counsel appearing for Opp.

Party No.5.

On the consent of the learned counsel appearing for the

Parties with due exchange of the pleadings, the matter was

// 11 //

heard at the stage of admission and disposed of by the

present order.

9. Having heard learned counsel for the parties and after

going through the materials available on record, it is found

that pursuant to the advertisement issued under Annexure-

1, the Petitioner as well as Opp. Party No.4 to 6 made their

applications for the Post of Excise Constable. As provided in

the advertisement under Annexure-1, under Para 7-A the

prescribed height for UR category was 168 cm and the

prescribed height for S.C & S.T candidate (men) was 163 cm.

Since Opp. Party No.4 was not having the required height, he

availed the benefit of relaxation of height having belong to

S.T candidate and accordingly qualified in the physical test

and subsequently participated in the selection process. Since

Opp. Party No.4 was allowed the benefit of relaxation of

height and accordingly he participated in the selection

process, in view of the decision of the Hon'ble Apex Court

reported in the case of Niravkumar Dilipbhai Makwana, as

cited (supra), Opp. Party No.4 should not have been selected

as against UR vacancies. The plea taken by the Petitioner

regarding availability of relaxation in height by Opp. Party

No.4 has not been disputed either by the State-Opp. Parties

// 12 //

or by the Opp. Party No.4 while filing their respective

counters.

9.1. In view of such non-denial on the part of Opp. Party

No.4 as well as the State-Opp. Parties, it is an admitted

fact that Opp. Party No.4 participated in the selection

process by availing the benefit of relaxation of height.

Therefore, placing reliance on the Hon'ble Apex Court in

the case of Niravkumar Dilipbhai Makwana, as cited

(supra), he should not have been selected as against UR

vacancy. Therefore, this Court is inclined to interfere with

the selection of Opp. Party No.4 only and finds no illegality

or irregularity with the selection of Opp. Party Nos.5 & 6.

While interfering with the matter, this Court quash the

selection of Opp. Party No.4 and direct the Opp. Party

Nos.1 and 3 to select and provide appointment to the

Petitioner as excise constable taking into account his

position in the district wise merit list. Such action shall be

initiated and completed within a period of two months from

the date of receipt of this order.

9.2. However, while parting with the case and taking

into account the fact that Opp. Party No.4 has completed

more than 7 years of service after being appointed by the

// 13 //

Opp. Parties, Opp. Party No.1 may consider his

continuance as against any available vacancy, if it is so

permissible in the eye of law.

The Writ Petition is accordingly disposed of with the

aforesaid observation and direction.

(Biraja Prasanna Satapathy) Judge

Orissa High Court, Cuttack Dated the 2nd May, 2023/sangita