Gagan Bihari Patra vs D.G. & I.G. Of Police
2023 Latest Caselaw 12467 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                   W.P.(C) (OA) No.2933 of 2013

An application under Section 19 of the State Administrative
Tribunal's Act, 1985.
                           ..................

    Gagan Bihari Patra                        ....                     Petitioner

                                      -versus-

    D.G. & I.G. of Police, Odisha             ....            Opposite Parties
    & Others


            For Petitioner        :       M/s. M.K. Khuntia, G.R.
                                          Sethi & J.K. Digal.


            For Opp. Parties :            M/s.D.K.Mohanty,
                                          Addl. Standing Counsel.

   PRESENT:


      THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY


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       Date of Hearing: 13.01.2023 and Date of Order: 31.01.2023
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     Biraja Prasanna Satapathy, J.

1. The present Writ Petition has been filed inter alia with

the following prayer:-

"i. To quash the selection and consequential appointment of Respondent No.4.

ii. To direct the respondents to select the respondent No.5 as constable under UR category instead of SC category.

iii. To direct the respondents to appoint the applicant as constable of GRP Rourkela

iv. To direct the respondents to grant all financial and consequential benefits from the order of appointment and grant all consequential benefits from the date when others have got appointment.

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v. And pass such other order/orders as may be deemed fit and proper for the interest of justice".

2. The factual matrix giving rise to filing of the present

case is that pursuant to the advertisement issued by the

Chairman, State Selection Board, Orissa Police, Cuttack to

fill up 1303 posts in different districts including GRP,

Rourkela, the Petitioner with having the qualification made

his application for the post of Constable in GRP, Rourkela.

As provided in the advertisement issued under Annexure-1,

a candidate making his application as on 01.01.2013

should have attained the age of 18 years and should not be

above 23 years. The said upper age limit of 23 years is

relaxable by five years for SC, ST and SEBC candidates and

all candidates belonging to women category.

2.1. It is also provided that the upper age limit is relaxable

up to 30 years in respect of home guards and up to 43

years in respect of Group-D employees working under the

Police Department. The Petitioner while belong to SC

category made his application and in the select list

published under Annexure-1, three candidates in SC

category, four candidates in ST category and two

candidates in SEBC category and eight candidates in UR

category were selected. Even though the Petitioner secured

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31.75 marks but he was not selected whereas the Opposite

Party No.4 with having 31 marks were selected and

appointed. Since the Petitioner even though secured more

marks than the Opposite Party No.4, was not selected and

appointed, he approached the Tribunal in O.A

No.2933/2013. The Tribunal while issuing notice of the

matter vide order dated 24.10.2013 passed the following

interim order:-

"xxx xxx xxx

So far as interim prayer is concerned, keeping in view of the fact that in the meantime respondent Nos.4 and 5, who have secured less marks than the applicant have already been favoured with appointment orders it need not be said that in case the applicant succeeds in t his case, those who have been appointees securing less mark than the applicant, shall have to leave the place for the applicant to enter into the service.

However, pendency of the O.A shall not be a bar for the respondent authorities to issue appointment order in favour of the applicant if he is otherwise found suitable person securing more marks than the private respondent Nos.4 & 5".

3. It is the main contention of the learned counsel for

the Petitioner that pursuant to the advertisement issued

under Annexure-1, the Petitioner having belong to SC

category made his application as against the vacancies

reflected in respect of GRP, Rourkela and in the selection

process, the Petitioner was awarded 24 marks towards

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physical efficiency and physical measurement and 7.75

marks in the written test. The Petitioner in total secured

31.75 marks. However, it is contended that in respect of

vacancies available in GRP, Rourkela while three

candidates were selected in SC category, four candidates

was selected in ST category and two candidates in SEBC

category and eight candidates under UR category. Even

though the Opposite Party No.4 had secured 31 marks, but

he was selected as against UR vacancy ignoring the claim of

the Petitioner.

3.1. It is contended that while Opposite Party No.4 was

selected in UR category having secured 31 marks, but the

Opposite Party No.5 though secured 31.75 marks, but he

was selected under SC category.

3.2. It is also contended that the selection process is

governed as per the provision contained under the Orissa

Police Service (Methods of Recruitment and Conditions of

Services) Order, 2010. As provided under Rule-11 of the

said order, it is provided as under:-

"11. Select List:1) On completion of the recruitment test, the Board shall draw up a select list of the successful candidates in order of merit, category-wise for each District separately as per the advertisement. The select list shall be prepared in decreasing order of aggregate marks in accordance with the vacancies in

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which the total persons shall not exceed the number of vacancies advertised.

2.The selection list shall be prepared in the format as decided by the Board.

3. The persons getting the higher aggregated marks shall be placed higher in the select list.

4. If the aggregated marks obtained by two or more persons are equal, the person older in age shall be placed above the other in the select list.

5. If the date of birth is also the same, the candidate securing higher marks in Physical Efficiency Test, shall be placed above the other in the select List.

6. If the marks in Physical Efficiency Test are also same, the candidate securing higher marks I n written test shall be placed above the other in the select list.

7. There shall be no reserve or Waiting list"

3.3. It is contended that the selection process was never

undertaken as provided under Rule-11 of the 2010 order

and because of such illegality committed by the selection

committee, the Petitioner was deprived from the purview of

selection. Had the Opposite Party No.5 having secured

31.75 marks would have been selected in U.R category, the

Petitioner would have been selected in SC category having

secured the next higher mark in that category. Not only

that Opposite Party No.4 though secured only 31 marks in

comparison to 31.75 marks secured by the Petitioner, but

the Petitioner was not considered for his selection and his

name was not reflected in the select list published under

Annexure-2.

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3.4. It is contended that in view of the decision of the

Hon'ble Apex Court in the case of Jitendra Kumar Singh

and another vs. State of Uttar Pradesh and others;

reported in (2010) 3 SCC 119, the action of the Opposite

Parties is not selecting and appointing the Petitioner is not

sustainable in the eye of law.

Learned counsel for the Petitioner also relied on

another decision of the Hon'ble Apex Court in the case of

Pradeep Singh Dehal v. State of Himachal Pradesh and

others; reported in (2019) 9 SCC 276. While in the case

of Pradeep Singh Dehal, it is the view of the Hon'ble Apex

Court that every person is first a general category candidate

and if a reserved category candidate qualifies on merit, he

will occupy general category seat. Similarly in the case

Jitendra Kumar Singh, Hon'ble Apex Court held that the

question of concession given to reserved category

candidates and whether the same is a bar for their

consideration for selection on merit. The Hon'ble Apex

Court in the said reported judgment has observed as

follows:-

"In view of the aforesaid facts, were are of the considered opinion that the submissions of the appellants that relaxation in fee or age would deprive the candidates belonging to the reserved category of

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an opportunity to compete against the general category candidates is without any found. It is to be noticed that the reserved category candidates have not been given any advantage in the selection process. All the candidates had to appear in the same written test and face the same interview. It is therefore quite apparent that the concession in fee and age relaxation only enable certain candidates belonging to the reserved category to fall within the zone of consideration. The concession in age did not in any manner tilt the balance in favour of the reserved category candidates, in the preparation of final merit/select list".

3.5. Accordingly, learned counsel for the Petitioner

contended that in view of the decision of the Hon'ble Apex

Court in the case of Pradeep Singh Dehal and Jitender

Kumar Singh, the non-selection and appointment of the

petitioner is illegal and the same is liable for interference of

this Court.

4. Mr. D.K. Mohanty, learned Addl. Standing Counsel for

the State on the other hand made his submission basing on

the stand taken in the counter affidavit filed by Opposite

Party Nos.1 to 3. It is contended that pursuant to

Annexure-1, the recruitment was held from 25.07.2013 to

29.07.2013 by observing all the formalities to fill up 17

vacancies in GRP, Rourkela. After completion of the

recruitment procedure, the merit list of 17 candidates was

published on 22.01.2013 in which the three candidates

belonging to SC category were selected. Since the Petitioner

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secured 31.75 marks, he was not selected in SC category as

all the three selected candidates in the said category had

secured more than 31.75 marks. The Opposite Party No.4

though had secured 31 marks but he was selected as

against eight vacancies in UR category.

4.1. It is contended that since the Petitioner made his

application as a SC category candidate and was extended

with the benefit of age relaxation, the claim of the Petitioner

that he should have been considered as against UR

vacancies is not legally sustainable.

4.2. Mr. Mohanty, learned Addl. Standing Counsel on the

aforesaid issue relied on the decision of the Hon'ble Apex

Court reported in the case of Nirav Kumar Dilipbhai

Makwana v. Gujarat Public Service Commission and

Others reported in (2019) 7 SCC 383. Hon'ble Apex Court

in Paragraphs- 22 to 24, 27, 30 & 34 of the aforesaid

reported decision has held as follows:-

"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

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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 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 Sub−section (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 sub−section (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 (supra), 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:

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"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 25−3−1994 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."

Xxx xxx xxx

34. There is also no merit in the submission of the learned counsel for the appellant that relaxation in age at the initial qualifying stage would not fall foul of the circulars dated 29.01.2000 and 23.07.2004. The distinction sought to be drawn between the preliminary and final examination is totally misconceived. It is evident from the advertisement that a person who avails of an age relaxation at the initial stage will necessarily avail of the same relaxation even at the final stage. We are of the view that the age relaxation granted to the candidates belonging to SC/ST and SEBC category in the instant case is an incident of reservation under Article 16(4) of the Constitution of India".

4.3. Accordingly, it is contended that since the Petitioner

availed the benefit of age relaxation and was allowed to take

part in the selection process as a SC candidates, the

Petitioner is not eligible and entitled for his selection in UR

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category. It is also contended that the decision relied on by

the learned counsel appearing for the Petitioner no more

hold the field, in view of the subsequent decision of the

Hon'ble Apex Court reported in the case of Nirav Kumar

Dilipbhai Makwana as cited (supra).

5. I have heard Mr. G.R. Sethi, learned counsel for the

Petitioner and Mr. D. K. Mohanty, learned Addl. Standing

Counsel for the State. On the consent of the learned

counsel appearing for both the Parties, the matter was

taken up for final disposal at the stage of admission and

disposed of by the present order.

6. Having heard learned counsel for the Parties and

taking into account the materials available on record, this

Court finds that the Petitioner pursuant to the

advertisement issued under Annexure-1 made his

application in respect of vacancies available in GRP,

Rourkela. In terms of the advertisement, though the

Petitioner had crossed the upper age limit, but having

belong to SC category, he availed the benefit of age

relaxation and accordingly participated in the selection

process. The selection process under Annexure-1 was

initiated in terms of the provision contained under Orissa

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Police Service (Methods of Recruitment and Conditions of

Services) Order, 2010. Out of the total vacancies in GRP,

Rourkela, eight posts were filled up in UR category, three

posts in SC category, four posts in ST category and 2

candidates in SEBC category. Since in SC category all the

three selected candidates secured more marks than the

Petitioner, the Petitioner could not be selected under the

said category.

6.1. The claim of the Petitioner that since the Petitioner

has secured more marks than the last candidate selected in

UR category i.e. Opposite Party No.4, the Petitioner should

have been selected in view of the decision of the Hon'ble

Apex Court in the case of Pradeep Singh Dehal and

Jitender Kumar Singh as cited (supra), but the said view

is no more res-integra, in view of the subsequent decision of

the Hon'ble Apex Court reported in case of Nirav Kumar

Dilipbhai Makwana v. Gujarat Public Service

Commission and Others.

6.2. Since the Petitioner has admittedly availed the benefit

of age relaxation while taking part in the selection process

as SC category candidate, in view of the subsequent

decision in Nirav Kumar Dilipbhai Makwana, the

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Petitioner cannot claim the benefit of selection as against

UR vacancies after availing the benefit of age relaxation as

a SC category candidates. Therefore, this Court finds no

illegality or irregularity in the selection process so

undertaken by the Opposite Party Nos.1 to 3. Hence, this

Court is not inclined to entertain the prayer as made in the

Writ Petition and the Writ Petition is accordingly dismissed.

(Biraja Prasanna Satapathy) Judge

Orissa High Court, Cuttack Dated the 31st of January, 2023/ (Subrat)

Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Oct-2023 18:00:34