Pradeepta Kumar Samal vs State Of Odisha & Others
2023 Latest Caselaw 5589 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                    WPC(OAC) No.182 of 2019

 In the matter of an application under Section 19 of the
 Administrative Tribunal Act, 1985.

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

 Pradeepta Kumar Samal                      ....                     Petitioner

                                     -versus-

 State of Odisha & Others                   ....             Opposite Parties


          For Petitioner         :      Mr. B.S. Rayaguru

     For Opp. Parties    :     Mr. S.K. Das, Advocate for
                   Intervenor-petitioner & State Counsel.

PRESENT:


     THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY

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   Date of Hearing:24.04.2023 and Date of Order:10.05.2023
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   Biraja Prasanna Satapathy, J.

I.A. No.1127 of 2022 in W.P.C(OAC) No.182 of 2019

1. This matter is taken up through Hybrid

Arrangement (Virtual/Physical) Mode.

2. Even though the matter is listed today for orders,

but on the consent of the learned counsels appearing // 2 //

for the parties, the matter was finally heard and

disposed of.

3. Heard Mr. B.S. Rayaguru, learned counsel for the

Petitioner and Mr. S.K. Das, learned counsel appearing

for Intervenor-petitioner and learned Addl. Govt.

Advocate for the State.

4. The Petitioner has filed the present Writ Petition

seeking quashing of the notice dated 07.12.2018 and

notice dated 11.01.2019 so issued by the Opposite

Party No.2 under Annexures-4 and 5, as well as the

selection procedure so undertaken for recruitment to

the post of Public Prosecutor pursuant to

Advertisement No.05 of 2016-17. The petitioner also

prays to declare the action of the Opposite Party No.2-

Commission in debarring the petitioner to appear in

the viva-voce test for the said post as illegal.

5. Learned counsel for the petitioner contended that

pursuant to the advertisement issued by the Odisha

Public Service Commission in short <Commission= vide

Advertisement No.05 of 2016-17 under Annexure-1, the

petitioner made his application for the post of Public

// 3 //

Prosecutor. It is contended that even though the

application of the petitioner was duly accepted and he

was allowed to take part in the written examination

held on 11.08.2018 and 12.08.2018 but the

Commission while publishing list of 31 candidates

provisionally selected to take the viva-voce test vide

notice dated 07.12.2018 under Annexure-4 did not

allow the petitioner to take the Viva-voce test.

Subsequently after conducting the viva- voce test, the

Commission issued the notice dated 11.01.2019

recommending 12 nos. of candidates, who have

qualified the selection for the post of Public Prosecutor

under Annexure-5. The Petitioner being deprived from

the purview of such selection as well as challenging the

illegal conduct of the recruitment test, is before this

Court in the present Writ Petition.

5.1. It is also contended that even though the

petitioner in the written test secured 180 marks in

total, but candidates securing less mark than the

petitioner, were called to appear the viva-voce test. It is

also contended that candidates who secured 180

marks were called to take the viva voice test, whereas

// 4 //

the petitioner was debarred to take the test because of

the illegal action of the Opposite Party No.2.

5.2. Learned counsel for the Petitioner further

contended that the petitioner is an A.P.P. attached to

the Court of learned S.D.J.M., Bhadrak since 2015 and

because of his experience and knowledge as well as his

performance in the written examination, he was

required to be called to the viva voice test vide notice

dated 07.12.2018 under Annexure-4. But, because of

the illegal exclusion of his name from the list, so

published by the Commission under Annexure-4, he

was not allowed to take part in the viva voice test and

consequentially he was also deprived from the purview

of selection while Opposite Party No.2 recommended

the selected candidates vide notice dated 11.01.2019

under Annexure-5.

5.3. It is also contended that while calling the

candidates for the viva voice test, the Commission also

did not follow the ratio of 1:3 as indicated in the

advertisement under Annexure-1 and as against 12

posts so advertised the Commission only called 31

candidates to take the viva voice test vide Annexure-4.

// 5 //

It is also contended that even though in the

advertisement out of the 12 posts meant for UR

category, 4 posts are reserved for women candidates,

Opposite Party No.2 should have called 12 numbers of

women candidates to take the viva-voce test. Making all

such submissions, learned counsel for the Petitioner

contended that the selection process so conducted by

the Opposite Party No.2 in terms of Annexure-1 having

been vitiated, the said process of selection is not only

illegal but also the consequential selection of 12

candidates, so issued vide notification dated

11.01.2019 under Annexure-5.

6. Learned counsel appearing for the Commission on

the other hand contended that pursuant to the

Advertisement issued under Annexure-1, the petitioner

made his application and the same after being

accepted, he was allowed to take part in the written

examination which was held on 11.08.2018 and

12.08.2018. The commission taking into account the

performance of the candidates in the written test, short

listed the candidates to be called for the viva voice test

and called 31 candidates to take the viva voice test vide

// 6 //

notification dated 07.12.2018 under Annexure-4. The

Commission conducted the viva voice test on

27.12.2018 and 28.12.2018 and the final select list

was published on 11.01.2019 under Annexure-5.

6.1. It is contended that in the advertisement issued

under Annexure-1 all the post were kept unreserved

and out of 12 nos. of vacancies, 4 posts were for UR

(women). But the petitioner though was not coming

within the age group, as provided under Clause-3 of

the advertisement, but made his application by availing

the benefit of age relaxation having belong to SEBC(M)

category. It is contended that since the petitioner

availed the benefit of age relaxation as a reserve

candidate and no post was reserved for SEBC Category

in the advertisement issued under Annexure-1,

petitioner was not found eligible and accordingly he

was not called to take the viva-voce test, while issuing

notice under Annexure-4. It is accordingly contended

that no illegality has been committed by the

Commission with regard to the conduct of the

recruitment in terms of Annexure-1. It is also

contended that the petitioner after having participated

// 7 //

in the selection process in terms of Annexure-1, he

cannot challenge the process of selection after

becoming unsuccessful. Ms. Mohanty, learned counsel

appearing for the Commission, in support of her

aforesaid submission relied on the decision of this

Court reported in 2010 (Supp II) OLR 437. This Court

in Paragraph 12 of the judgment has held as follows:

<12. Additionally, it is seen that the petitioner has applied to be selected in the second advertisement also. Now after being unsuccessful in her attempt to get selected, the petitioner has filed this writ petition challenging the advertisement dated 09.07.2007. In Dhananjay Malik and others v. State of Uttaranchal and others, (2008) 4 SCC 171=2009 AIR SCW 3265; the Apex Court held that when the petitioner took a chance by appearing in the selection process and only after they did not find themselves as successful candidates, they cannot challenge the selection process. In other words, when the petitioner has applied for being selected and took part in the selection process without any demur, she cannot later on challenge the issuance of the second advertisement. She is estopped and precluded the questioning the said selection process.=

7. Mr. S.K. Das, learned counsel for the

Intervenor-petitioner on the other hand made his

submission taking into account the stand taken in

his I.A. No.1127 of 2022. It is contended that even

though the intervenor-petitioner- Brundaban

Nayak-Opp. Party No.3 was placed at Serial No.9 of

// 8 //

the final select list under Annexure-5 and out of the

12 selected candidates, 11 candidates have been

provided with appointment, because of the interim

order passed by the Tribunal on 28.01.2019,

Opposite Party No.1 is not providing appointment to

the intervenor-petitioner. It is also contended by the

learned counsel appearing for the Intervenor-

petitioner that since in the advertisement under

Annexure-1, no post was reserved SEBC category

and the petitioner availed the benefit of age

relaxation while making his application and

commission accordingly allowed him to take part in

the recruitment process, in view of the recent

decision of the apex Court in the case of

Niravkumar Dillipbhai Makwana Vs. Gujarat

Public Service Commission and Others, reported

in (2019) 7 SCC 383, the petitioner is not entitled

to get the benefit of appointment as against UR

vacancy. It is accordingly contended that in view of

the decision as cited supra, the petitioner having

availed the benefit of age relaxation as a reserved

category candidate, he cannot get the benefit of

// 9 //

appointment as against the UR vacancy. Hon'ble

Apex Court in paragraphs 21 to 24, 27 & 30 in the

case of Niravkumar Dillipbhai Makwana, as cited

(supra) 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 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

// 10 //

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 sub- section (1)."

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 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

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."

08. Having heard learned counsel for the parties and

after going through the materials available on record,

this Court finds that by the time the petitioner made

his application in terms of Annexure-1, he was not

// 11 //

coming within the age group as provided under Clause-

3 of the advertisement. The application of the petitioner

was entertained after allowing him age relaxation as

per Government rules and the petitioner having belong

to SEBC category. Since the petitioner availed the

benefit of age relaxation and participated in the

recruitment process as a SEBC candidate, the

petitioner cannot claim the benefit of appointment as

against UR vacancies. Since in the advertisement

under Annexure-1 all the vacancies were meant for UR

category, this Court finds no illegality or irregularity

with regard to the action of the Commission in not

selecting the petitioner as against the UR vacancy. It is

also the view of this Court that once the petitioner

participated in the selection process, after becoming

unsuccessful he cannot challenge the process of

selection in view of the decision of this Court as cited

supra.

8.1. Hence, in any view of the matter, the claim of the

petitioner is not sustainable and accordingly this Court

is not inclined to entertain the prayer of the petitioner.

Since this court is not entertaining the prayer of the

// 12 //

Petitioner and is of the view that the Petitioner after

availing the benefit of age relaxation as a reserve

category candidate cannot claim for his appointment as

against UR vacancy, all the selected candidates

impleaded as Opp. Party Nos. 3 to 12 having been

selected and appointed as UR candidates, this Court is

inclined to dispose of the Writ Petition at this stage.

While dismissing the Writ Petition, this Court

vacates the interim order so passed on 28.01.2019.

09. The Writ Petition is accordingly dismissed.

(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 10th of May, 2023/Basudev

BASUDEV Digitally signed by BASUDEV SWAIN

SWAIN Date: 2023.05.11 11:43:05 +05'30'