Orissa High Court
Litu Behera & Another vs State Of Odisha & Others .... Opp. ... on 4 September, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) NO. 24636 OF 2024
In the matter of an application under Articles 226 & 227 of
the Constitution of India
Litu Behera & Another .... Petitioners
-Versus-
State of Odisha & others .... Opp. Parties
Advocates appeared in this case:
For Petitioners : M/s. S. Mallik, P.C. Das, M. Mallik
and S. Mallick, Advocates
For Opp. Parties: Mr. J. K. Ray,
Addl. Standing Counsel [OP Nos.1 & 2]
M/s P.K. Mahapatra, S.C. Dev Dash, S.
Samal & R.P. Das, Advocates
[OP Nos.3 to 5 & 7]
M/s J.R. Dash, A. Pattajoshi & K.L.
Dash, Advocates [OP Nos.6, 8 & 9]
CORAM:
THE HON'BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD
JUDGMENT
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Date of hearing: 03.09.2025 :: Date of judgment: 04.09.2025
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PER DIXIT KRISHNA SHRIPAD,J.
Two Lecturers in Mechanical Engineering in Odisha Technical
Education & Training Service (OTE&TS) Cadre (Group-B), both
belonging to Scheduled Caste, have presented this petition with the
following two prayers:
"I) Quash the impugned order vide Notification dtd. 12.8.2024 under
annexure-5 promoting of the juniors/ opposite parties Nos.3 to 9 to the
rank of Lecturer Stage-II Mechanical Engineering ignoring the
seniority of the petitioners.
II) Direct/order that the petitioners shall be promoted to the rank/post
of Lecturer Stage-II Mechanical Engineering w.e.f. 12.8.2024 the date
of promotion of juniors/ opposite parties Nos.3 to 9 with all
consequential service and monetary benefits."(sic)
2. After service of notice, the official OPs appear through the learned
AGA and the private OPs are represented by their advocates. Counter
affidavit is also filed resisting the petition, which other OPs, who have
not filed one, have adopted. Learned AGA and the counsel representing
the private OPs resist the petition making submission in justification of
the impugned orders, essential contending that there is no error apparent
on the face of the record, petitioners having been initially appointed not
on their merits, but on their social status. Counsel appearing for private
parties very strenuously contended that whatever relief may be granted to
the petitioners, but it should not upset the appeal cart of their clients, be it
in relation to their promotion or their ranking in the Gradation List.
3. Having heard learned counsel for the parties and having perused
the petition papers, this Court is inclined to grant indulgence in the matter
as under and for the following reasons.
3.1. Petitioners inter alia, along with private OPs herein, were in the
fray of the very same recruitment vide Advertisement No.13 of 2017-18
issued by Odisha Public Service Commission. Petitioners figured at Sl.
Nos.12 & 13 in the final select list dated 31.10.2018, whereas all the
private OPs figured down below, as is reflected in OPSC Notice No.7966
dated 31.10.2018 at Annexure-1. It is true that petitioners staked their
claim for appointment under reserved category, since admittedly they
belong to Scheduled Caste. It is obvious that they figured above the
private OPs not because of their social status, but their comparative
merits in the entry level examination. On the basis of final select list they
came to be appointed as Lecturers, with M.Tech. degree vide Notification
No.5850/SDTE dated 28.12.2018, as it happened with the private OPs
also.
3.2. Petitioners were denied promotion to the next higher level, whereas
private OPs, who are obviously junior to them, have been promoted vide
Notification dated 12.08.2024, though they were entitled to, in terms of
Odisha Government Polytechnics Teachers' Service (Methods of
Recruitment & Conditions of Service) Rules, 2024, which does not
exclude the general norm of "Seniority-cum-Merit" for the purpose. In
fact, in the final Gradation List of Lecturers Stage-I, dated 29.06.2024
petitioners figured at Sl. Nos.36 & 37, whereas all private OPs figure
immediately below them. There is absolutely no reasons or rhyme for not
considering the case of petitioners, who are apparently seniors to the
private OPs, and that they were fully entitled to such consideration, even
if they had secured initial appointment under the reserved category or
because of their comparative higher merits. It hardly needs to be stated
that merely because a reserved category candidate is given initial
appointment under the unreserved category, he does not cease to be a
candidate belonging to reserved quota and therefore, whatever is due
under the policy of reservation, rightly belongs to him.
3.3. The Apex Court in R.K. Sabharwal v. State of Punjab, (1995) 2
SCC 745 observed at para-5 as under:
"When a percentage of reservation is fixed in respect of a
particular cadre and the roster indicates the reserve points, it
has to be taken that the posts shown at the reserve points are
to be filled from amongst the members of reserve categories
and the candidates belonging to the general category are not
entitled to be considered for the reserve posts. On the other
hand, the reserve category candidates can compete for the
non-reserve posts and in the event of their appointment to the
said posts their number cannot be added and taken into
consideration for working out the percentage of reservation.
Article 16(4) of the Constitution of India permits the State
Government to make any provision for the reservation of
appointments or posts in favour of any backward class of
citizen which, in the opinion of the State is not adequately
represented in the Services under the State."
The Odisha Civil Services (Criteria for Promotion) Rules, 1992, as
amended vide Notification dated 12.10.2022, reads as under:
"3-A Notwithstanding anything contained in the relevant
recruitment rules, where the promotion is to be considered as
per the post based reservation (by way of replacement
theory), the separate zone of consideration shall be
applicable:
Provided that the Scheduled Caste or Scheduled Tribe
candidates appointed on their own merit either by direct
recruitment or by promotion and placed above the
unreserved candidates in the merit list shall be considered
and adjusted against the unreserved vacancies and such
candidates are not to be counted within the percentage
earmarked for reservation of their category."
A Coordinate Bench of this Court in WP(C) No.12516 of 2020 between
Lalit Kumar Nayak v. State of Orissa & Others disposed of on
24.07.2024, having examined all aspects of the matter, has accorded relief
to a reserved category candidate, in a substantially similar fact matrix.
3.4. Learned counsel for the petitioner has graciously filed a memo
dated 03.09.2025, which reads as under:
"The petitioners are restricting to the Prayer No.II and not
pressing the Prayer No.I." (sic)
On that basis, the promotion granted to private OPs herein can be saved,
is true. However, the same cannot be read as giving up the seniority of the
petitioners, once they are to be promoted with effect from the date their
immediate juniors have been given promotion. An argument to the
contrary amounts to illegally depriving the benefit of reservation that has
been enacted in terms Article 16 of the Constitution of India. Even
otherwise, a meritorious candidate cannot be prejudiced merely because
he belongs to reserved category. The very object of reservation is to
achieve affirmative equality in the matter of public employment.
In the above circumstances, this petition succeeds. A Writ of
Mandamus issues to the official OPs to consider candidature of the
petitioners for promotion and grant such promotion with retrospective
effect sans monetary benefits from the date their immediate juniors have
been promoted to the next higher level and further to place them in the
higher ranking qua the said private OPs. All this to be accomplished
within an outer limit of eight (8) weeks.
Costs reluctantly made easy.
Web copy of this judgment to be acted upon by all concerned.
Dixit Krishna Shripad
Judge
Orissa High Court, Cuttack
The 4th September, 2025/GDS
Designation: JOINT REGISTRAR-CUM-PRINCIPAL
Location: HIGH COURT OF ORISSA : CUTTACK
Date: 04-Sep-2025 18:20:25
