[Cites 1, Cited by 0]
Orissa High Court
State Of Odisha vs B. Abakash on 25 March, 2026
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No.1099 of 2025
In the matter an Appeal under Section 10 of the Letter Patent of the
Patna High Court, read with Article-4 of the Orissa High Court
Order, 1948.
....
State of Odisha, represented through its
Commissioner-Cum-Secretary to Government
of Odisha, Energy Department.
... Appellant
-Versus-
1. B. Abakash ... Respondent
2. Principal Secretary to Government of
Odisha, General Administration Department.
3. Secretary, Odisha Public Service Proforma
Commission, Cuttack ... Respondents
Advocates Appeared in this case:
For Appellant - Mr. S.B. Mohanty, AGA.
For Respondents - Mr.Biswabihari Mohanty
Advocate for R.1 on caveat.
....
CORAM
HON'BLE MR. JUSTICE KRISHNA SHRIPAD DIXIT
HON'BLE MR. JUSTICE CHITTARANJAN DASH
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Date of Hearing & Judgment : 25.03.2026
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PER KRISHNA S. DIXIT, J.
This Intra Court Appeal by the State essentially lays challenge to a
learned Single Judge's order dated 21.01.2025, whereby WPC(OA) No.
3285/2018 filed by Respondent-employee herein, having been favoured,
relief has been according to him in the following terms:
"7.4 Therefore, the ground on which Petitioner's claim has been rejected
vide the impugned order dt.30.07.2018 under Annexure-11 as per the
considered view of this Court is not sustainable in the eye of law.
Therefore, this Court is inclined to quash the said order and while
quashing the same directs Opp. Party No.1 to provide appointment to the
Petitioner as against the vacancies caused due to non joining of the
candidate placed as Sl. Nos. 2 & 4 with due adjustment of the candidates
placed at Sl. Nos.7 & 9 against those two vacancies and appointing the
Petitioner as against the vacancy caused on such adjustment of the
candidates, placed at SI. NO.7 & 9 in SEBC category.
7.5 This Court accordingly Opp. Party No.1 to provide appointment to the
Petitioner within a period of four (4) weeks from the date of receipt of this
order. But such order of appointment shall be prospective in nature and
Petitioner will not claim any benefit of seniority vis-à-vis the candidates
appointed in terms of Annexure-5 or appointment of the candidate placed
at Sl. No.13, who was appointed vide order dt.03.03.2017. Petitioner is
directed to file an undertaking that he will not claim any seniority after
being provided with the appointment in terms of the present order at the
time of his joining."
2. Learned AGA appearing for the Appellant-State vehemently argues
that the impugned order is in violation of the 50% ceiling limit to the reserved
posts; secondly, the said order speaks of re-arrangement of the ranking of
candidates to the prejudice of those who are already in the employment
having been engaged in the SEBC category; and lastly, that it is a settled
position of law where mere inclusion in Select List does not ensure
appointment to the post unless a comparatively merit deficient candidate in
the same category has been appointment against the post in question, and the
Respondent-employee figures below the appointed candidates. So contending
he seeks indulgence of this Court in the matter.
3. Learned Counsel for Respondent-employee appearing on caveat,
vehemently makes submissions in justification of the impugned order of the
learned Single Judge. He places before us certain rulings of the Apex Court,
contending that the impugned order is structured on the principles laid down
by the Apex Court and therefore, the same is inexplicable. So contending he
seeks dismissal of this appeal. He submits that, his client's Appeal needs to be
favoured by granting him the benefit of impugned order by quashing the last
paragraph which reads as under:
"7.5 This Court accordingly Opp. Party No.1 to provide appointment to
the Petitioner within a period of four (4) weeks from the date of receipt of
this order. But such order of appointment shall be prospective in nature
and Petitioner will not claim any benefit of seniority vis-à-vis the
candidates appointed in terms of Annexure-5 or appointment of the
candidate placed at Sl. No.13, who was appointed vide order
dt.03.03.2017. Petitioner is directed to file an undertaking that he will not
claim any seniority after being provided with the appointment in terms of
the present order at the time of his joining."
He submits that learned Single Judge is not justified in denying the benefit of
seniority and asking his client to file an undertaking to forego the same.
Learned AGA retorts that, this portion of the order is a product of exercise of
discretion in the fitness of things.
4. Having heard learned counsel for the parties and having perused the
Appeal papers, we decline indulgence in the Appeal with some observations
as under and for the following reasons:
4.1. Pursuant to the selection process initiated vide Advertisement
No.02/2012-13, the Orissa Public Service Commission on 17.07.2013
recommended 38 candidates in several categories. In the said
recommendation, name of Respondent-employee figures at No.14 and that of
Susil Kumar Meher figured at Sl. No.13 in SEBC category. Challenging the
recommendation, one Anjelina Pattanaik approached the Tribunal by filing
OA No.2478 (C) of 2013, which came to be allowed vide order dated
29.01.2014 directing preparation of a fresh Select List confining reservation
to 50% of the vacancies. This order was challenged by the Respondent-
employee along with others by filing WP(C) Nos.3454 & 2907 of 2014.
Pursuant to the interim order made, a fresh Select List was prepared by the
Commission recommending 29 candidates in various categories and this was
followed by appointment orders dated 27.02.2015. Out of these 29 persons,
those placed from Sl. Nos. 1 to 12 got the benefit of appointment in UR/SEBC
category. Candidates placed at Sl. Nos.2,3,4, 5 & 10 in the Select List were
from the UR category though they belonged to SEBC. Candidates placed at
Sl. Nos.7,9,11 & 12 were selected under SEBC category.
4.2. That W.P(C ) Nos.3454 & 2907 of 2014 came to be disposed off vide
judgment dated 29.06.2017 by confirming Tribunal's order with certain
observations inter alia in relation to the vacancies that eventually remained
unfilled on account of selected candidates not joining the posts, despite
issuance of appointment order. These candidates were at Sl. Nos.1,2 & 4 in
the Select List. The candidate at Sl. No.2 though belonged to SEBC category,
was appointed as against the vacancy meant for UR category, taking into
account his ranking in the Merit List. Similarly, candidate placed at Sl. No.4
too. Due to non-joining of the candidate belonging to SEBC category at Sl.
No.12, the SEBC candidate at Sl. No.13, was adjusted to the said slot.
Learned Single Judge is right in making the following observations at
paragraph 7.3 of the impugned order:
"7.3. As further found from the pleadings, due to non-joining of the
candidate appointed at Sl. No.12 who belongs to SEBC category,
candidate placed at Sl. No.13 and belonging to SEBC category was
adjusted. The stand taken by the opp. Parties while rejecting the
petitioner's claim that due appointment of the person placed at Sl. No.13
against the vacancy caused due to non-joining of candidates at observing
that since SEBC candidates placed at Sl. Nos. 2 & 4 were appointed as
against UR vacancies, on account of their ranking in the Merit List though
belong to SEBC category, taking into account the position of the employee
in the Merit List at Sl. No.14 and the Position off the candidates placed at
Sl. Nos. 7 & 9 both of whom belong to SEBC category, Sl.Nos.7 & 9
should have been adjusted against the vacancies caused at Sl. Nos.2 and 4.
After such adjustment of the candidates placed at Sl. Nos. 7 & and 9,
employee should have been appointed as against one of the vacancies
caused at Sl. Nos.7 & 9."
4.3. Learned Counsel for Respondent-employee is right in placing reliance
on Apex Court decision in R.K. Sabharwal v. State of Punjab, AIR 1995 SC
1371 wherein relevant para 4 reads as under:
"4. 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... As mentioned above the roster point which is
reserved for a backward class has to be filled by way of
appointment/promotion of the member of the said class. No general
category candidate can be appointed against a slot in the roster which is
reserved for the backward class. The fact that considerable number of
members of a backward class have been appointed/promoted against
general seats in the State Services may be a relevant factor for the State
Government to review the question of continuing reservation for the said
class but so long as the instructions/Rules providing certain percentage of
reservations for the backward classes are operative the same have to be
followed. Despite any number of appointees/promotees belonging to the
backward classes against the general category posts the given percentage
has to be provided in addition..."
The above view is reiterated in BSNL v. Sandeep Choudhary, (2022) 11
SCC 779.
4.4. Learned Single Judge at paragraph 7.5 of the impugned order,
made the appointment of the Respondent-employee to be prospective in
nature, thereby denying the benefit of entire seniority as against those
who have already been employed pursuant to the fresh Select List. We
agree with the submission of learned counsel that a wholesale denial of
seniority, in the fitness of the facts, is not justified, especially when the
employee has been made to fight the legal battle over and over again, no
fault being attributable to him. That being said, the equity weighs with
him halfway through. Some adjustment of competing claims has to be
worked out. In our considered view, though the employee cannot get the
back wages, the seniority for half the period of notional service has to be
accorded to him, provided he files the undertaking foregoing the rest
within four weeks. Otherwise, that benefit also, he stands to lose. In view
of this observation, the Writ Appeal stated to have been filed by the first
Respondent-employee, which is yet to be numbered, can be disposed off
by the Roster Bench.
In the above circumstances and with the above observations,
this Appeal is disposed off. The order of the learned Single Judge,
as modified by this judgment vide paragraph No. 4.6 supra, shall be
implemented within an outer limit of six weeks. Costs made easy.
Web copy of judgment to be acted upon by all concerned.
(Krishna Shripad Dixit)
Judge
(Chittaranjan Dash)
Judge
Orissa High Court, Cuttack
The25th day of March, 2026/Prasant
Signed by: PRASANT KUMAR SAHOO
