Orissa High Court
Afr Deepak Kumar Nayak vs State Of Odisha & Others ....... Opp. ... on 4 March, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 6765 of 2018
Application under Articles 226 & 227 of Constitution of India.
---------------
AFR Deepak Kumar Nayak ...... Petitioner
- Versus -
State of Odisha & Others ....... Opp. Parties
Advocate(s) appeared in this case:-
________________________________________________________
For Petitioner : M/s. Sachidananda Sahoo & P.R. Bhuyan,
Advocates
For Opp. Parties : Mr. S.N. Pattnaik,
Addl. Government Advocate
M/s. A.K. Maharana, Balaram Panda,
K. Beura & B.K. Mahalik, Advocates
(O.P. Nos.5, 8, 9, 12 & 13)
_________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
th
4 March, 2025
SASHIKANTA MISHRA, J. The petitioner has filed this writ
application with the following prayer.
"The petitioner, therefore, prays that this Hon'ble
Court may graciously be pleased to admit the writ
application, issue rule NISI to the opposite parties to
show cause as to :
(i) Why the provisional merit list for the post of
Sikshya Sahayak, 2016-17 for category; SEBC,
Post: Category-II- Arts of Nabarangpur District
under Annexure-14 and its' approval as final
merit list and any consequential action thereon
shall not be declared as bad and illegal;
AND
(ii) Why the opposite parties shall not be
directed to draw the final merit list afresh
ignoring the provisional merit list vide
Annexure-14 in respect of category: SEBC, Post:
Category II-Arts of Nabarangpur District strictly
in accordance with guidelines vide annexure-2,
by incorporating the name of Petitioner within
stipulated period;
AND
And if the Opp.Parties do not show cause or show
insufficient cause, then rule be made absolute by
issuing appropriate writ/writs, direction/directions
and any other order/orders as deemed fit and proper
may be passed.
And for this act of kindness the petitioner shall as
in duty bound ever pray."
2. Bereft of unnecessary facts, the case of the petitioner
is that vide letter dated 26.12.2016, the Commissioner-cum-
Secretary, Government in School and Mass Education
Department informed the State Project Director, OPEPA
regarding the decision of the Government to engage 14087
numbers of Sikshya Sahayaks during the year 2016-17 as also
the guidelines for selection. The petitioner applied against
Category-2 Teacher in Arts with his social category being
SEBC. He opted for Nabarangpur district as his first
preference. In the data sheet for engagement of Sikshya
Sahayaks hosted in the OPEPA website, the petitioner's name
was reflected at serial No.315 with total marks at 189.4254.
Pursuant to notification issued by the District Project
Coordinator(DPC), Nabarangpur on 18.01.2018, the petitioner
appeared along with his original documents for verification,
which was done. An eligible list of candidates, whose
certificates were verified, was published. However, in the
provisional merit list published in respect of Nabarangpur
district, the name of the petitioner did not appear. On
09.03.2018, objections were invited against the said list by the
State Project Director, OPEPA. The petitioner submitted a
representation on 13.03.2018 before the DPC, Nabarangpur
specifically stating that applicants securing less marks than
him had been included in the provisional list. Again, on
21.03.2018, a provisional list was published but the name of
the petitioner was not included. On the contrary, persons, who
had not opted Nabrangpur as their first preference district,
were included in the list belonging to different categories. In so
far as SEBC is concerned, out of 10 vacancies, 3 were reserved
for women and 7 for men. 3 women candidates were enlisted at
serial No. 1, 2 & 3. Serial Nos.4 and 5 were SEBC (Sports
Persons Men) category. Serial No.6 was SEBC (PH) category and
serial Nos. 7 to 9, despite not opting Nabarangpur as their first
preference district, were included as PH(VI), PH(OH) and PH(HI)
respectively. Furthermore, a candidate at serial No. 10, despite
opting for Nabarangpur as 5th preference district, was also
enlisted. The petitioner, despite securing more marks was not
enlisted. It is his further case that had the list of SEBC Men
opting Nabarangpur as first preference district been prepared,
his position would have been at serial No.4. Moreover, PH
candidates were adjusted in the category of SEBC illegally. On
28.03.2018, final merit list was published.
3. The stand of the State opposite parties is that the
petitioner had applied under +3 Arts B.Ed by opting
Nabarangpur as his first preference district. He was placed in
the eligible list with total percentage of 189.4254 marks. A
meeting was conducted at the Government level on 15.03.2018
consisting of Deputy Director, Secondary Education; Deputy
Director, Elementary Education; Special Secretary to
Government, S & ME Department; Deputy Secretary to
Government, SC & ST Development Department; Deputy
Director (Admn.) OPEPA; and Sr. Technical Director, NIC,
Bhubaneswar, wherein certain decisions were taken. As per the
said decision, the post and category wise provisional merit list
of candidates in respect of Nabarangpur district was published.
The petitioner having availed age relaxation of five years under
SEBC category could have been considered only for that
category. As regards the candidates under SEBC category as
per the merit list, it is stated that candidates at serial Nos. 4 &
5 had availed sports person quota and placed under SEBC
category; serial Nos. 6 to 10 had availed PH quota and were
placed in SEBC category to satisfy the PH reservation quota. It
is further stated that such adjustment was made in line with
the provisions of the Right of Persons with Disability Act, 2016
(in short "2016 Act"), which came into force from 19.04.2017
providing for 4% reservation for persons with disability.
Further, 14087 posts advertised include some unfilled
vacancies of 2014-15. Two posts under sports +3 Arts B.Ed.
category remained unfilled during 2014-15, which were filled
up during 2016-17. Out of 124 posts meant for category-2 Arts
for Nabrangpur District, 10 were reserved for SEBC category,
out of which 3 were reserved for women, 5 for PH candidates
and 2 for sports persons. A merit list was prepared accordingly.
4. Heard Mr. S.N. Sahoo, learned counsel for the
petitioner and Mr. S.N. Pattnaik, learned Addl. Government
Advocate for the State. Be it noted that though the private
opposite parties (opposite party Nos. 5 to 13) were represented
by counsel, yet there was no appearance from their side during
hearing, despite grant of repeated opportunities.
5. Mr. Sahoo would argue that the opposite party
authorities have not followed the dictum of Supreme Court
while preparing the merit list and have wrongly applied the
principle of horizontal reservation. As per the law laid down in
Rajesh Kumar Daria vs. Rajasthan Public Service
Commission and others1 and Saurav Yadav and others vs.
State of Uttar Pradesh and others2 (2021) 4 SCC 452, the
authorities ought to have prepared the list by applying vertical
reservation on merit and thereafter applied horizontal
reservation according to appropriate social category. According
(2007) 8 SCC 785
(2021) 4 SCC 542
to Mr. Sahoo, the authorities have further committed illegality
in selecting two candidates under sports persons category
instead of one as per the resolution dated 18.11.1985 and
11.12.2014. Further, the candidate at serial No. 9 never joined.
In so far as candidates at serial Nos. 7 to 10 are concerned,
they never preferred Nabarangpur as their first preference
district. Mr. Sahoo emphatically argues that the select list is
also wrong for the reason that the authorities have applied the
provisions of 2016 Act even though the same came into force
on 19.04.2017. In so far as reservation of PH candidates is
concerned, the 1995 Act is applicable providing for 3%
reservation, which includes 1% for women. Thus, the total
vacancy being 124, 2 PH candidates (men) and 1 PH candidate
(women) should have been selected. Instead, the authorities
have included 5 PH candidates, which is completely illegal.
6. Per contra, Mr. S.N. Pattnaik would argue that admittedly
14087 vacancies were advertised, which includes the leftover
vacancies of the previous recruitment process, i.e. 2014-15. A
total no. of 989 vacancies were notified for Nabarangpur, out of
which 124 were meant for category -II Arts (+3 B.Ed. Arts). Of
the said posts, 10 including 3 women were reserved for SEBC.
Since in the previous recruitment process 2 vacancies
belonging to sports persons were carried over, the candidates at
serial No. 4 & 5, who belong to the said quota with SEBC as
their social category, were included. Similarly, the candidates
at serial No. 6 to 10 were included but under the PH quota.
Though the petitioner secured higher marks than some of the
said candidates, he could not have been included in the list as
the unfilled quota of sports persons and PH candidates had to
be filled.
7. Though much has been pleaded and argued, the basic
dispute boils down to the correctness of the methodology
adopted by the opposite party authorities in preparing the
merit list. The basic facts are not disputed inasmuch as the
advertisement was published on 26.12.2016, wherein 14087
vacancies were notified including 989 vacancies for
Nabarangpur. In so far as category-II is concerned, 124
vacancies were notified for Nabrangpur. The State has provided
the breakup of said 124 vacancies in its pleadings in the
following manner, which are not disputed.
Category Vacancies
UR 48 (15-W)
SEBC 10 (3-W)
SC 14 (5-W)
ST 52 (18-W)
__________________________________________
Total 124 (41-W)
So, in so far as SEBC is concerned, the total vacancies were 10
including 3 women. In the merit list, serial Nos.1 to 3 were
women candidates and thus, the women quota was satisfied. It
has been stated that the unfilled vacancies of the sports quota
as well as PH quota being 2 and 5 respectively for the previous
recruitment year i.e. 2014-15 were carried forward. This
averment in the pleadings and assertion by the State Counsel
during hearing does not find support from the advertisement or
the resolution dated 26.12.2016 or the corrigenda issued on
30.11.2017 and 01.12.2017. The resolution dated 26.12.2016
simply mentions that the Government had approved
engagement of 14087 Sikshya Sahayaks during 2016-17. The
district-wise and category wise breakup of the vacancies issued
by the Government vide letter dated 17.01.2017 also does not
mention anything about the vacancies of the previous year
being carried forward. Therefore, it is difficult to accept that the
total posts approved for being filled up i.e., 14087 included
some unfilled vacancies of the year 2014-15, a fact stated for
the first time in the counter filed in this Court.
8. Be that as it may. It has been stated that out of 10
SEBC vacancies 3 being reserved for women, 7 vacancies
remained, out of which 2 were reserved for sports persons and
5 for PH category. In so far as the sports quota is concerned, it
has not been disputed that as per the relevant Government
resolutions dated 18.11.1985 and 11.12.2014, 1% of the
vacancies is to be filled up. This makes the sports quota as one.
Though it is stated that two persons were selected to meet the
leftover quota of 2014-15, in view of the finding of this Court
that there is no evidence to show that any such vacancies were
carried forward, it is difficult to accept the stand of the State as
above. That apart, it is stated that 5 PH vacancies were
reserved, which includes the leftover quota. Again, no details
have been put forward, such as what was the actual number of
vacancies carried forward from the previous recruitment year
and what was the vacancy of the current year. That apart, it is
stated that as per the provisions of the 2016 Act, 4% of the
vacancies is to be reserved for PH candidates. At this juncture
it would be profitable to refer to the 2016 Act, which admittedly
came into force on 19.04.2017. As per Section 34 of the said
Act, the minimum percentage of reservation for PH candidates
is to be 4. Significantly the advertisement was issued on
26.12.2016 when the 1995 Act was in force. Section 33 of the
1995 provides for minimum reservation of 3% for PH
candidates. Even the notification dated 26.12.2016 provides
under Clause-2(ii) that "in case of PH candidates, provisions
contained in the Persons With Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act,
1995 and GA department instructions thereof shall be followed.
Thus, the resolution itself makes it clear that 1995 Act is to
apply. The resolution dated 05.09.2017 issued by the Social
Security & Empowerment of Persons with Disabilities
Department relating to reservation and other concessions for
the persons with disabilities can only be relevant to cases
where the 2016 Act is applicable. This Court fails to
understand as to how the 2016 Act would apply when the
advertisement itself was published prior to coming into force of
the said Act and more importantly, specified that the 1995 Act
would apply. It is trite that law prevailing as on the date of
advertisement is to be applied.
9. In the case of Tej Prakash Pathak & Ors. vs.
Rajasthan High Court and Others3 the Supreme Court held
that once the recruitment process has commenced, the State
cannot tinker with the rules of the game. So, on the face of the
mandate of 1995 Act being to provide 3% reservation for PH
candidates, the authorities could not have gone beyond it by
citing the 2016 Rules, which was inapplicable as the
recruitment process had commenced before coming into force
of the later Act. Thus, 3% out of 10 i.e., only 3 candidates
belonging to PH could have been selected.
10. To sum up, this Court finds that there was no
justified reason to include 2 persons from the sports quota and
5 persons from PH quota in the list. Of them, 1 sports person
and 2 PH candidates must be held to have been included in
excess of the permissible limit. Reference to the provisional
merit list would show that the petitioner having secured
(Civil Appeal No. 2634 of 2013), dated 20.03.2013.
189.4254% marks had secured more marks than all the
candidates. Therefore, as rightly contended by Mr. Sahoo, he
ought to have been placed at least at Sl. No.4 i.e. below 3
women candidates. If 1 sport person and 3 PH candidates are
accounted for, it would mean, the candidate at serial No.4
under sport persons quota would be included while the
candidate at serial No.5 of the said quota would have to be
excluded. Similarly, the candidates at serial Nos. 6, 7 & 8
would be included while the candidates at serial No. 9 & 10
would be excluded. Thus, there would have been three places
available to be filled up. It is stated at the bar that the
candidate at Serial No. 9, Naresh Kumar Kand did not join. So
if the petitioner is placed at serial No.5 none of the private
opposite parties would be affected.
11. Thus, from what has been narrated hereinbefore it is
clear that the petitioner has made out a good case for
interference by this Court. However, there being one place
available to be filled up in which the petitioner can be
comfortably included, this Court does not find any reason to
declare the final merit list as bad and illegal as prayed for by
the petitioner more so as the persons held to have been
appointed in excess of the permissible limit have rendered
service to the State for quite some time now. This Court would
rather direct the authorities concerned to modify the merit list
to place the petitioner at the appropriate place and to issue
order of engagement accordingly without any further delay.
Necessary order in this regard shall be passed within two
months from the date of production of certified copy of this
order by the petitioner.
.................................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack.
The 4th March, 2025/ A.K. Rana, P.A.
Designation: Personal Assistant
Location: High Court of Orissa, Cuttack
Date: 06-Mar-2025 11:07:54
