[Cites 17, Cited by 0]
Orissa High Court
(In The Matters Of Applications Under ... vs Union Of India & Others .... Opposite ... on 17 December, 2025
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 02-Jan-2025 17:46:50
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.459 of 2016 and batch of Writ Petitions
(In W.P.(C) No.459 of 2016)
(In the matters of applications under Articles 226 and 227 of the
Constitution of India, 1950).
Chinmaya Pasayat & Ors. .... Petitioner(s)
-versus-
Union of India & Others .... Opposite Party (s)
Advocates appeared in the case through Hybrid Mode:
For Petitioner(s) : Mr. Biswajeet Nayak, Adv.
Ms. Deepali Mahapatra, Adv.
Mr. L. N. Patel, Adv.
Mr. Biswabihari Mohanty, Adv.
Mr. Sohan Mishra, Adv.
Mr.S. K. Nanda, Adv.
Mr. S. K. Ojha, Adv.
Mr. D.P. Dhalsamant, Adv.
Mr. P. K. Panda, Adv.
For Opposite Party (s) : Mr. K.M. Nataraj, Ld. Addl. Solicitor
General of India
along with Mr. Somyajit Pani,
Mr. S. D. Das, Sr. Adv.
Along with associates
Mr. B. S. Raiguru, CGC
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-25.09.2024
DATE OF JUDGMENT:-17.12.2024
W.P.(C) No.459 of 2016 along with WP(C) Nos.22914 of
2015, 22915 of 2015, 23061 of 2015, 23063 of 2015, 568 of
2016, 6592 of 2016, 15241 of 2016 and 18652 of 2016
Page 1 of 16
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 02-Jan-2025 17:46:50
Dr. S.K. Panigrahi, J.
1. Since common question of facts and law are involved in all the above-
mentioned Writ Petitions, the same were heard together and are being
disposed of by this common judgment. However, this Court felt it
apposite to deal with the W.P.(C) No.459 of 2016 as the leading case for
proper adjudication of all these cases.
2. In W.P.(C) No.459 of 2016, the petitioners are challenging the selection
process to the post of Security Guard T&S Grade G of Mahanadi
Coalfields Limited.
I. FACTUAL MATRIX OF THE CASE:
3. The brief facts of the case are as follows:
(i) A notice of employment for the position of Security Guard T&S Grade
G was issued by Mahanadi Coalfields Limited vide an advertisement
dated 19.02.2014, for 303 vacancies. Of these, 158 posts were allocated to
the General category, while 145 posts were reserved, in accordance with
the State Quota outlined in the Office Memorandum dated 05.07.2005
and the guidelines issued on 29.01.2023 by the Department of Personnel
and Training, with the reservation as follows: 16% for Scheduled Castes
(SC), 22% for Scheduled Tribes (ST), and 12% for Other Backward
Classes (OBC). Therefore, the seats reserved were as follows: 33 posts
for Scheduled Castes (SC), 66 posts for Scheduled Tribes (ST), and 36
posts for Other Backward Classes (OBC).
(ii) Advertisements for the Security Guard T&S Grade G post were also
published in different newspapers, dated 19.02.2014, with a note that
reservation for SC, ST, OBC, Physically Handicapped, and Ex-
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Location: ORISSA HIGH COURT, CUTTACK
Date: 02-Jan-2025 17:46:50
Servicemen would apply as per the rules and guidelines of the
Government of India.
(iii) The eligibility criteria for the post were fixed as Indian nationals who
are Ex-Army/Ex-BSF personnel, NCC/A certificate holders, or
Sportsman of All India repute, with Matriculation or an equivalent
qualification from a recognized Board.
(iv) A written test was conducted, followed by an interview, and a select list
was published.
(v) The petitioners, who are NCC/A certificate holders and met the
eligibility criteria, qualified the written test but did not find their names
on the select list after the interview.
(vi) The select list contained a 'Note No. 2,' which stated that reservation for
Ex-Servicemen had been applied in accordance with the Government of
India guidelines and purportedly included a 24.5% reservation.
(vii) Aggrieved by the provision of reservation to Ex-Servicemen, which was
allegedly contrary to the advertisement dated 19.02.2014 and resulted in
the total reservation exceeding 50%, the petitioners have approached
this Court in the present writ petition.
II. SUBMISSIONS ON BEHALF OF THE PETITIONERS:
4. Learned counsel for the Petitioners earnestly made the following
submissions in support of his contentions:
(i) The petitioners submitted that the reservation for Ex-Servicemen
granted by Mahanadi Coalfields Limited was unlawful, as the
employment notice dated 19.02.2014 did not specify any such
reservation. While the notice explicitly outlined reservations for
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candidates belonging to SC, ST, and OBC categories, no provision was
made for Ex-Servicemen. The recruitment process must strictly adhere
to the terms of the advertisement, and any deviation therefrom would
render the process impermissible.
(ii) The petitioners submitted that it is a settled position of law that the total
reservation should not exceed 50% of the total vacancies, as laid down
in Indira Sawhney v. Union of India.1 By including the Ex-Servicemen
reservation, the total reservation exceeded the 50% ceiling, amounting
to 74.5%, with 16% for SC, 22% for ST, 12% for OBC, and 24.5% for Ex-
Servicemen.
(iii) The petitioners contended that if any reservation for Ex-Servicemen was
to be provided, it ought to have been in the form of horizontal
reservation, in line with the guidelines issued by the Government of
India. Instead of being allocated horizontally across the SC, ST, and
OBC categories, the Ex-Servicemen were adjusted solely within the
General category. This misapplication resulted in a substantial
reduction in the number of General category posts available for other
eligible candidates.
(iv) Mahanadi Coalfields Limited had misapplied the principle of horizontal
reservation in the recruitment process. Moreover, the claim made by the
respondents that the selected Ex-Servicemen candidates had not availed
of any age relaxation was factually incorrect. Out of the 74 candidates
selected under the 24.5% horizontal reservation for Ex-Servicemen, 50
candidates had availed of age relaxation. Nevertheless, all these
(2000) 1 SCC 168
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candidates were adjusted solely within the General category, which
constituted a clear misapplication of the horizontal reservation policy.
(v) The petitioners submitted that Mahanadi Coalfields Limited
inconsistently applied reservation policies by following the State
Government's reservation policy for SC, ST, and OBC categories while
simultaneously adhering to the Central Government's policy for Ex-
Servicemen. The petitioners contended that the Ex-Servicemen
reservation should have been limited to 3% under the State policy.
However, the respondents allocated 24.5% in line with the Central
policy, thereby adopting inconsistent standards and aggravating the
violation.
(vi) The petitioners further submitted that the recruitment process, which
began in 2014, had caused significant delays, resulting in undue
hardship. Having qualified the written test and interview, they had
been awaiting consideration for their appointments. The petitioners
contended that their case should be sympathetically considered as a
person's right should not be extinguished due to the efflux of time.
III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:
5. The Learned Counsel for the Opposite Parties earnestly made the
following submissions in support of his contentions:
(i) The advertisements published in various newspapers on 19.02.2014
included a provision for 24.5% reservation for Ex-Servicemen, in
accordance with the Ministry of Defence circular dated 04.06.2014. The
petitioners, having been aware of this reservation, participated in the
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Location: ORISSA HIGH COURT, CUTTACK
Date: 02-Jan-2025 17:46:50
selection process and, therefore, are precluded from challenging its
validity at this stage.
(ii) The petitioners' contentions regarding the omission of details of
reservation cannot be sustained, and the entire recruitment process of
2015 cannot be vitiated on this basis alone, as the omission is
inconsequential. To buttress this argument, reliance was placed on the
Supreme Court's observations in University of Cochin v. N.S.
Kanjoonjamma & Ors2, where it was expressed that omission to
mention that it was a special recruitment for reserved posts in the
advertisement is inconsequential.
(iii) Mahanadi Coalfields Limited, being a Central Public Sector
Undertaking (CPSU)/ has adhered to the Central Government's policy
regarding Ex-Servicemen reservation. The state policy for the
reservation of SC (16%), ST (22%), and OBC (12%) was applied as per
the Office Memorandum dated 05.07.2005 by the Government of India.
(iv) The petitioners failed to meet the basic cutoff criteria for consideration
for employment. The cutoff marks for the last candidate in different
categories were stated as follows: UR: 42.5, OBC: 37.5, SC: 34.5, ST: 24.5,
and ESM-Gen: 31.5. The petitioners have scored significantly less than
the cut off marks and therefore do not fall within the zone of
consideration. Therefore, their claims lack merit.
IV. COURT'S REASONING AND ANALYSIS:
6. Heard Learned Counsels for the parties and perused the documents
placed before this Court.
(1997)4 SCC426
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Location: ORISSA HIGH COURT, CUTTACK
Date: 02-Jan-2025 17:46:50
7. The central issue that demands determination in the present case is
whether the 24.5% horizontal reservation for Ex-Servicemen, as
mandated by the Ministry of Defence Circular dated 04.06.2014, has
been correctly implemented in the recruitment process for the post of
Security Guard T&S Grade G by Mahanadi Coalfields Limited.
8. Before delving into the specific application of the Ex-Servicemen
reservation, it is imperative to first examine the underlying principle of
horizontal reservation and its intended implementation. In Indra
Sawhney (supra),the Supreme Court, drawing a distinction between
horizontal and vertical reservations, provided a comprehensive
exposition of the concept. It is clarified that horizontal reservations
intersect with vertical reservations, forming an interlocking framework.
Crucially, they do not affect the total percentage allocated to vertical
reservations. The relevant paragraph is produced hereinbelow:
"812. ... There are two types of reservations, which may,
for the sake of convenience/ be referred to as 'vertical
reservations' and 'horizontal reservations'. The reservations
in favour of Scheduled Castes, Scheduled Tribes and other
backward classes [under Article 16(4)] may be called
vertical reservations whereas reservations in favour of
physically handicapped [under clause (1) of Article 16] can
be referred to as horizontal reservations. Horizontal
reservations cut across the vertical reservations -- what is
called interlocking reservations. To be more precise, suppose
3% of the vacancies are reserved in favour of physically
handicapped persons; this would be a reservation relatable
to clause (1) of Article 16. The persons selected against this
quota will be placed in the appropriate category; if he
belongs to SC category he will be placed in that quota by
making necessary adjustments; similarly, if he belongs to
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Location: ORISSA HIGH COURT, CUTTACK
Date: 02-Jan-2025 17:46:50
open competition (OC) category, he will be placed in that
category by making necessary adjustments. Even after
providing for these horizontal reservations, the percentage of
reservations in favour of backward class of citizens remains
-- and should remain -- the same. This is how these
reservations are worked out in several States and there is no
reason not to continue that procedure."
9. The provision under the Ministry of Defence Circular dated 04.06.2014,
mandating a 24.5% reservation for Ex-Servicemen, is of a special nature
and fundamentally distinct from social reservations typically allocated
to Scheduled Castes, Scheduled Tribes, and Other Backward Classes.
Unlike social reservations, which seek to address historical injustices
and disadvantages suffered by certain groups, the Ex-Servicemen
reservation is specifically designed to honor and benefit those who have
served in the armed forces. It is, therefore, a horizontal reservation,
cutting across the vertical categories of General, SC, ST, and OBC,
ensuring that Ex-Servicemen receive equitable opportunities within
each of these categories without disturbing the overall structure of
vertical reservations.
10. The Supreme Court, in Anil Kumar Gupta v. State of Uttar Pradesh3
had provided a detailed procedure for the application of horizontal and
vertical reservations in recruitment processes as hereinunder:
"18. ...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
1995 (5) SCC 173
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Location: ORISSA HIGH COURT, CUTTACK
Date: 02-Jan-2025 17:46:50
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 therefrom. (If, however,
it is a case of compartmentalised 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.)..."
11. In the context of the application of both horizontal and vertical
reservation, the Supreme Court in Saurav Yadav v. State of Uttar
Pradesh4 clarified that a person belonging to an intersection of vertical-
horizontal reserved categories who secures sufficient merit to qualify
without relying on the vertical reservation would be considered as
qualifying in the general (open competition) category. Such a candidate
cannot be excluded from the horizontal quota in the general category, as
their merit qualifies them independently of the vertical reservation.
12. In the same vein, in Rajesh Kumar Daria v. Rajasthan Public Service
Commission5, the Supreme Court observed:
"9. ...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
(2021) 4 SCC 542
(2007) 8 SCC 785
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Date: 02-Jan-2025 17:46:50
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."
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Location: ORISSA HIGH COURT, CUTTACK
Date: 02-Jan-2025 17:46:50
13. Upon reviewing the facts and materials on record, it is observed that the
Ex-Servicemen candidates in the present recruitment for the posts of
Security Guard T&S Grade G have been placed in the General category
vacancies within the select list.
14. Horizontal reservations are intended to "cut across" vertical
reservations. Proper implementation requires accommodating Ex-
Servicemen within their respective vertical categories (General, SC, ST,
OBC) without disturbing the overarching reservation structure.
15. The correct approach for application of such reservation would be: first,
filling the Open Competition quota (50%) based on merit; second, filling
the social reservation quotas (SC, ST, and OBC); and third, identifying
how many candidates under Ex-servicemen category have already been
selected. If the horizontal reservation quota is met through these
selections no further action is needed. However, if it remains
unfulfilled, the required number of Ex-servicemen category candidates
must be adjusted within their respective social reservation categories by
replacing an equivalent number of candidates.
16. The adjustment of 31 Ex-Servicemen candidates from OBC-NCL, SC,
and ST categories into the General category contravenes the provisions
of the Ex-Servicemen (Re-employment in Central Civil Services and
Posts) Rules, 1979. Rule 3 of the Ex-Servicemen (Re-employment in
Central Civil Services and Posts) Rules, 1979 mandates that Ex-
Servicemen selected for vacancies reserved for SC, ST, or OBC must be
adjusted within those categories. If no vacancies are available, such
candidates must be adjusted in the next available reserved vacancy.
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Here, horizontal reservation has been erroneously applied vertically,
with all such candidates placed exclusively in General category
vacancies.
17. In the present case, the reservation scheme is one of overall horizontal
reservation, not compartmentalized horizontal reservation, thereby
eliminating the need for separate application within each vertical
category. The overall horizontal reservation criteria must be adhered to,
ensuring that all Ex-Servicemen are appropriately accommodated
within their respective vertical categories without disturbing the
overarching reservation structure.
18. While it is acknowledged that Ex-Servicemen, if qualifying on merit,
may be placed in the General category, this is not the situation in the
present case. The cut-off for 'ESM-General' candidates have been set at
31.5, significantly lower than the General category cut-off of 42.5. This
disparity undermines the claim of merit-based placement and
highlights the incorrect application of vertical reservation principles.
19. Although the recruitment process took place in 2015 and a considerable
amount of time has elapsed, and while this Court is not inclined to
revisit whether all the petitioners have met the cut-off, the improper
application of horizontal reservation cannot be disregarded.
20. It is well established that the rules of recruitment cannot be altered
midway, unless explicitly permitted by the applicable rules or the
advertisement. In cases where such a change is permitted, it must
comply with the requirements of Article 14 and satisfy the test of non-
arbitrariness. Any alteration in the recruitment process must be made in
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Location: ORISSA HIGH COURT, CUTTACK
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a manner that does not disadvantage any candidate or create an
unequal playing field.
21. Additionally, it is essential to recognize that the recruitment process for
the position of Security Guard T&S Grade G took place in 2015, and a
substantial amount of time has since passed. The selected candidates
have been actively serving in these roles for a considerable period.
Consequently, any remedial action at this juncture must account for the
established tenure of these appointees. Therefore, alternative
arrangements should be made to address any irregularity in the
recruitment process in a manner that rectifies the situation without
causing undue prejudice to the positions of those appointed pursuant to
the original advertisement.
22. In Ran Vijay Singh v. State of U.P.,6 the Supreme Court addressed a
case involving multiple evaluations due to an erroneous answer key,
which led to the preparation of three sets of results. Recognizing that
candidates would suffer regardless of whether the original results or the
third set were adopted, the Court chose a middle path. It declared the
third set of results while safeguarding the positions of candidates
appointed under the original declaration, even if they were
unsuccessful as per the third set. To accommodate the newly selected
candidates, the Court directed the creation of supernumerary posts.
23. In the same vein, in Rajesh Kumar v. State of Bihar,7 the Supreme
Court extended protection to candidates already working who did not
(2018) 2 SCC 357
(2013) 4 SCC 690
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Date: 02-Jan-2025 17:46:50
qualify after re-evaluation, observing that they should not be ousted
from service but should instead be placed at the bottom of the list of
selected candidates. The Court expressed:
"21. ...It goes without saying that the appellants were
innocent parties who have not, in any manner, contributed
to the preparation of the erroneous key or the distorted
result. There is no mention of any fraud or malpractice
against the appellants who have served the State for nearly
seven years now. In the circumstances, while inter se merit
position may be relevant for the appellants, the ouster of the
latter need not be an inevitable and inexorable consequence
of such a re-evaluation. The re-evaluation process may
additionally benefit those who have lost the hope of an
appointment on the basis of a wrong key applied for
evaluating the answer scripts. Such of those candidates as
may be ultimately found to be entitled to issue of
appointment letters on the basis of their merit shall benefit
by such re-evaluation and shall pick up their appointments
on that basis according to their inter se position on the merit
list."
24. In Khunjamayum Bimoti Devi v. State of Manipur & Others,8 the
Supreme Court upheld the Manipur High Court's decision which
annulled the selection of 242 OBC candidates for Primary Teacher posts
due to the retrospective application of reservations. However,
acknowledging the hardship faced by teachers who had already served
for over 13 years, the Court left the decision regarding their retention to
the discretion of the Manipur government.
25. Consequently, this Court is of the considered view that it would not be
judicious or equitable to direct the removal of candidates who were
2024 INSC 733
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Location: ORISSA HIGH COURT, CUTTACK
Date: 02-Jan-2025 17:46:50
erroneously extended the benefit of the 'vertical' application of the ex-
servicemen quota. The Court recognizes that such an order may
disproportionately affect individuals who relied in good faith on the
administrative interpretation of the quota, potentially causing
irreparable harm to their professional and personal stability.
Furthermore, the principle of non-retroactivity in administrative
corrections supports refraining from penalizing candidates for errors
not attributable to them. Hence, any corrective action should aim to
address future processes without unduly prejudicing those who have
already been integrated into the system under a bona fide
misunderstanding of policy.
V. CONCLUSION:
26. Based on the aforementioned analysis of both factual and legal aspects,
it is hereby directed that the candidature of the petitioners shall be
reconsidered in a fresh recruitment exercise.
27. The said process shall be conducted without displacing or jeopardizing
the appointments of ex-servicemen who were erroneously appointed by
the Opposite Party against these posts. Such appointments of the ex-
servicemen shall be regularized by creating supernumerary posts. The
petitioners, upon their appointment pursuant to this order, shall be
accorded seniority over those ex-servicemen occupying the
supernumerary posts.
28. The entire exercise shall be completed expeditiously and in accordance
with rules of recruitment.
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 02-Jan-2025 17:46:50
29. Accordingly, all the above-mentioned Writ Petitions are allowed.
30. Interim order, if any, passed earlier, in any of the Writ Petitions, stands
vacated.
(Dr. S.K. Panigrahi)
Judge
Orissa High Court, Cuttack,
Dated the 17th December, 2024/
