Dismissed

Susanta Ku.Sethi v. State of Orissa

Orissa HC3 Sept 2021WA/86/2018

Case brief

AI extract

What is this about?

This court dismissed a writ appeal challenging the selection of candidates for contractual Sikshya Sashayak posts, holding that the Odisha Reservation of Vacancies Act excludes such posts from its application.

What did the court decide?

Writ appeal dismissed with no order as to costs.

What the court decided

Susanta Ku.Sethi Vs State of Orissa — Writ and Judicial Review | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.A. No.86 of 2018

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Shri Susanta Kumar Sethi and …. Appellants others

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Mr. Sameer Kumar Das, Advocate

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-versus-

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…. State of Odisha and others Respondents Mr. Sandip Parida with Mr. D.R. Mohapatra, Senior Standing Counsels for School and Mass Education Department Ms. Pami Rath, Advocate for Respondent Nos.11, 16, 21,22, 23 and 25

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CORAM: THE CHIEF JUSTICE JUSTICE B.P. ROUTRAY

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JUDGMENT
03.09.2021

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Dr. S. Muralidhar, C.J.

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This writ appeal is directed against a judgment dated 16^th January 2017 passed by the learned Single Judge dismissing W.P.(C) No.4008 of 2011 filed by the present Appellants questioning the selection of Respondent Nos.6 to 25 as Sikshya Sashayaks (SS) pursuant to a selection process.

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The background facts are that on 14^th October 2006, an advertisement for filling up the contractual posts of SS was issued by the Director, OPEPA (Respondent No.3). Clause-6 of the said advertisement stated that the Odisha Reservation of Vacancies Act, 1975 (ORV Act) would apply. The reservation

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W.A. No.86 of 2018 Page 1 of 16

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for Scheduled Castes (SC) was 16.25%, for Scheduled Tribes (ST) 22.5%, for Socially and Economically Backward Classes (SEBC) 27% and for the General category 34.25%.

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The SS were to be paid an honorarium of Rs.2000/- per month. Of the total posts vacant, 70% were to be filled up by matric and +2 C.T. candidates and the rest 30% with the B.Ed. candidates. The candidates were to be selected on the basis of the eligibility according to the marks secured in the matric and C.T. exams as well as the B.A. and B.Ed. exams. No interviews were to be held for the purpose.

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1109 posts for Puri District were advertised. Of these, 103 posts were allotted to the Delang Block of Puri District. Of the 1109 posts meant for Puri District, 247 posts i.e. 22.5% were reserved for ST category. In terms of the merit list published on 23^rd December 2006 only 10 ST candidates were available leaving 237 ST vacancies unfilled.

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It should be noted that the post of contractual SS is neither a Group-C nor a Group-D post. However, it is not in dispute that SSs after completing a few years could become a Junior Teacher and thereafter be absorbed in the Class-III post of Primary School Teacher.

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The Collector-cum-CEO, Zilla Parishad, Puri wrote a letter to the Joint Secretary to Government, School & Mass Education

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W.A. No.86 of 2018 Page 2 of 16

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Department (S & ME Department) on 13^th August 2007 requesting that the 237 vacancies reserved for ST candidates be de-reserved so that they could be filled up by other category of candidates who already applied. The District Project Coordinator, SSA, Puri on 19^th January 2008 submitted the details of the vacancies to the Additional Secretary, S & ME Department. Inter alia , it was pointed out that of the 1109 posts, 245 were lying vacant. Of these 237 were due to non-availability of ST candidates.

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On 1^st May 2008, the Additional Secretary to Government, S & ME Department wrote to the Collector-cum-CEO, Zilla Parishad, Puri and Nayagarh stating that the process of selection for the engagement of SS pursuant to 2006 advertisement was already over and therefore, the ineligible candidates "shall have to apply afresh against the future advertisement for engagement". Accordingly, he stated in the said letter that "question of dereservation of ST posts to engage the ineligible candidates, does not arise at this stage."

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On 3^rd July 2008, the Additional Secretary to Government, S & ME Department in a letter addressed to the Collector-cum-CEO, Zilla Parishad, Puri stated that the S & ME Department had consulted the ST & SC Development Department. It was also advised by the ST & SC Development Department that adequate numbers of qualified ST and SC candidates may be identified and given training. Since the appointments were going to be

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purely on temporary basis, "whenever ST and SC candidates will be available, they could be inducted in the posts." Accordingly, the Collector was requested to "take appropriate steps as per the Government." This advice was repeated by a subsequent letter dated 8^th July 2008 where it was stated that "the eligible candidates out of the panel/select list of 2006 can be considered for engagement as Sikshya Sahayaks (SSs) against the respective ST back-log vacancies of both the districts of Nayagarh and Puri."

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On 28^th July 2008, the District Project Coordinator, SSA, Puri wrote to the Additional Secretary to Government, S & ME Department seeking clarification whether "the back-log of ST vacancies shall be filled up only by the eligible candidates out of general category or other reserved categories as per ORV Act." The Additional Secretary responded on 31^st July 2008 stating that the eligible candidates out of the panel/select list of 2006 can be considered for engagement as SSs "in order of merit against the respective S.T. back-log vacancies in the District of Puri."

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The Deputy Secretary to Government in S & ME Department on 14^th November 2008 wrote to the Collector-cum-CEO, Zilla Parishad, Puri stating that steps would be taken to fill up the balance 81 vacancies of posts of SS after obtaining an undertaking from the selected candidates that their engagement was purely on a temporary basis till such time "ST & SC candidates are available for induction in the post" and that they

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W.A. No.86 of 2018 Page 4 of 16

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would not claim any future engagement consequent upon their disengagement.

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The Minister in the ST & SC Development, Minorities & Backward Classes Welfare Department, Government of Odisha in a letter urged the Principal Secretary to Government in S & ME Department that the General candidates who had been appointed as SS against the ST vacancies "should immediately be replaced by the SC candidates."

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In terms of the earlier instructions and clarifications issued by the S & ME Department, the DPC, SSA, Puri engaged 235 candidates out of the merit list prepared in the year 2006 in two phases. In the first phase 156 candidates were engaged and in the second phase 81 candidates were engaged “solely on the basis of merits”. Further, out of the 235 candidates so engaged, 136 belonged to General category, 19 belonged to the SEBC category and 9 to the SC category. It was made clear at the time of engagement of the candidates that they were being engaged on temporary basis and would be disengaged while eligible ST candidates became available. In the above selection process, Respondent Nos.11, 16, 21, 22, 23 and 25 got appointed as SS.

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The present Appellants, all of who belong to the SC category, filed W.P.(C) No.19973 of 2009 before this Court without making the selected candidates as parties. The prayer in the said writ petition was for all the available vacancies of STs to be filled

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up by the SCs. The said writ petition was dismissed as withdrawn by this Court on 10^th May, 2010.

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Meanwhile another writ petition i.e. W.P.(C) No.14698 of 2010 was filed by the SC candidates which was disposed of by this Court with a direction to the Collector-cum-CEO, Puri to examine their representation and pass a reasoned order.

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Pursuant thereto, on 28^th October 2010, the Collector, Puri passed a detailed reasoned order rejecting the request of the present Appellants that the backlog of ST vacancies should be filled up in terms of the ORV Act, only by the SCs. The Collector, inter alia , noted that his predecessor (Collector, Puri) had on 22^nd October 2009 passed an order that the Petitioner before him deserves to be inducted for engagement as SS and that the Petitioner should file a fresh representation before the Departmental Promotion Committee (DPC), SSA, Puri.

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Pursuant to the above order of the Collector, Puri, the matter went before the District Selection Committee (DSC) which found that the said order of the Collector failed to account for the letter dated 31^st July 2008 of the S & ME Department in which it was clarified that the eligible candidates can be considered for engagement as SS “in order of merit against the respective ST backlog vacancies in the District.”

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W.A. No.86 of 2018 Page 6 of 16

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The Collector, by his order dated 28^th October 2010, rejected the claim of the present Appellants that in terms of the ORV Act they alone were eligible to be considered for filling up the backlog of ST vacancies. The Collector observed as under:

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“6. As the appointments were made purely on the basis of merit from among the candidates in the merit list for the year 2006 on the basis of the instructions of Govt. as mentioned above, I find no irregularity in engagement of candidates belonging to SC, SEBC and General Category on temporary basis against the ST backlog vacancies. The claim of the petitioners for engagement against ST vacancies does not merit consideration as their names did not find place in the 235 candidates selected as per merit. At the same time the SC candidates who were there in the merit list could be selected and engaged.

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Govt in SC & ST Development Department vide their Letter No.11124 dt.15.3.2007 has communicated all Collectors the decision of the Hon’ble Supreme Court of India vide their Judgment dated 9.10.2006 in the case of M. Nagraj and others. Hon’ble Supreme Court has observed in their order that in case of non availability of a particular class of candidate the same cannot be de-reserved to be filled up by other categories of candidates In other wards exchange of reservation between ST & SC will not be permissible.

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In view of the said orders of the Hon’ble Supreme Court filling up of ST backlog vacancies by SC candidates on exchange cannot be done.

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Hence, the claim of the petitioners merits no consideration.”

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W.A. No.86 of 2018 Page 7 of 16

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Challenging the above order as well as the orders dated 31^st July 2008 and 14^th November 2008 of the Government, the Appellants filed W.P.(C) No.4008 of 2011.

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In the said writ petition initially the selected candidates were not made parties. A review petition was filed by them which came to be dismissed on 10^th May 2013. Thereafter, the order dated 31^st August 2012 of the learned Single Judge and the order dated 10^th May 2013 rejecting the review petition were challenged in writ appeal i.e. W.A. No.237 of 2014. A Division Bench of this Court allowed the appeal, set aside the order of the learned Single Judge and remanded the writ petition for a fresh hearing after making the affected persons parties. Thereupon, the cause title of the W.P.(C) No.4008 of 2011 was amended impleading the present Respondent Nos.6 to 25 as Opposite Party Nos.6 to 25. The said writ petition was adjudicated afresh.

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By the impugned judgment dated 16^th January 2018, the learned Single Judge of this Court dismissed W.P.(C) No.4008 of 2011 as well as W.P.(C) No.19415 of 2017 filed by Adhikari Behera and others. The learned Single Judge found that by the time the writ petition had been filed, the Opposite Parties 6 to 25 therein had already been regularized. That was not challenged by the Appellants. Relying on the decisions of the Supreme Court in Vijendra Kumar Verma v. Public Service Commission, Uttarakhand (2011) 1 SCC 150 and Pradeep Kumar Rai v.

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W.A. No.86 of 2018 Page 8 of 16

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Denesh Kumar Pandey (2015) 2 SCC 493 it was held that once having participated in the process the unsuccessful candidate could not challenge the result. Here the unsuccessful candidates decided to challenge the interview only thereafter and that was impermissible in law. Accordingly, writ petition was dismissed.

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This Court has heard the submissions of Mr. Sameer Kumar Das, learned counsel for the Appellants; Mr. Sandip Parida with Mr. D.R. Mohapatra, learned Senior Standing Counsels for the S & ME Department and Ms. Pami Rath, learned counsel appearing for Respondent Nos.11, 16, 21 to 23 and 25.

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Mr. Das, learned counsel for the Appellants submitted that Section 6 of the ORV Act which recognizes the principle of ‘exchange’ vis-à-vis the vacancies and posts reserved for the SC and ST candidates should apply in the present case as well. According to him, the unfilled 237 vacancies in the posts reserved for ST candidates ought to be filled up only by the SC candidates.

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One of the main planks of the argument of Mr. Das, learned counsel for the Appellants, was the resolution dated 31^st May 2006 of the S & ME Department purportedly made under Article 243G of the Constitution of India.

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In terms of Clause-7 of the aforementioned resolution dated 31^st May 2006 “the ORV Act and other principles of reservation

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W.A. No.86 of 2018 Page 9 of 16

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as prescribed by Government from time to time shall be followed. Up to 33 1/3% posts will be reserved for women candidates.” Mr. Das, learned counsel for the Appellants has pressed on Clause-4.2 of the resolution which reads as under:

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“4.2 Selection shall be made only on merit i.e. on the basis of percentage of marks secured in Matriculation/+2 and C.T. examination for C.T. candidates and B.A./B.Sc/B.Com examination and B.Ed. examination for B.Ed. candidates. In case two or more candidates secure the same marks the candidate older by age and if ages are same, the candidates passing matriculation examination earlier will be placed above the other in the select list. In case C.T./B.Ed. trained candidates are not available under SC and ST categories, untrained matriculate/+2 candidates of that category can only be engaged. But against SC and ST quota, non-SC/ST candidates shall not be engaged.”

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Mr. Das accordingly contended that notwithstanding the provisions of the ORV Act in terms of Clause-4.2 of the Resolution, non-SC candidates could not have been appointed against the unfilled vacancies earmarked for the STs.

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Ms. Pami Rath, learned counsel appearing for Respondent Nos.11, 16, 21 to 23 and 25, on the other hand, pointed out that the challenge to the appointment of Respondent Nos.6 to 25 was made belatedly by the present Appellants, i.e. ten months after their appointment and more than one and half years of the State’s decision. Two writ petitions had been filed on the same issue i.e. W.P.(C) No.19973 of 2009 which was withdrawn on 10^th May

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W.A. No.86 of 2018 Page 10 of 16

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2010 and W.P.(C) No.14698 of 2010 which was disposed of 27^th September 2010 with a direction to consider the representation of the present Appellants. Thereafter, the third writ petition i.e. W.P.(C) No.4008 of 2011 was filed challenging the rejection of the representation.

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Ms. Rath pointed out that Respondent Nos.6 to 25 are no longer in contractual posts. They all have been appointed as Junior Teachers by 17^th February 2012 and in the year 2017, they were further promoted as Primary School Teacher, which is a Class-III post. At no point in time, was there a break in their service.

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Ms. Rath pointed out that on the other hand the vacancies which were originally filled up by Respondent No.6 to 25 have again fallen vacant and there was no stay against their being offered for appointment through a fresh advertisement. The subsequent development of Respondent Nos.6 to 25 being absorbed as Junior Teachers and Primary School Teachers have also not been challenged. She placed reliance on the decision of the Supreme Court in Shiv Dass v. Union of India (2007) 9 SCC 274 ; State of Maharashtra v. Digambar (1995) 4 SCC 683 and State of M.P. v. Nandlal Jaiswal (1986) 4 SCC 566 to urge that the claim of the Appellants was already belated and therefore had to fail on that short ground.

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W.A. No.86 of 2018 Page 11 of 16

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The Court would like to begin the discussion of the above submissions by referring to the ORV Act. The preamble of the Act explains that its purpose is to provide adequate representation for SCs and STs in posts and services under the State. Section 2 (b), (c) and (g) of the ORV Act which are relevant for the purpose read as under:

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Definitions :– In this Act, unless the context otherwise requires :–

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xxx xxx xxx

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(b) " recruitment year " means the calendar year during which recruitment is actually made];

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(c) " reservation " means reservation of vacancies in Posts and Services for the Scheduled Castes and the Scheduled Tribes;

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xxx xxx xxx

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(g) " State " includes the Government and the Legislature of the State of Odisha and all [local or other authorities] within the State or under the control of the State Government;”

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Section 3 makes it clear that the Act will apply to all appointments to the posts and services under the State. Section 3 of the ORV Act lists out the posts to which the ORV Act will not apply. What is relevant here is that under Section 3 (d) the ORV Act will not apply to posts “filled up on the basis of any contract.” Admittedly, the post of SS is a contractual post and therefore, the ORV Act does not apply to it.

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W.A. No.86 of 2018 Page 12 of 16

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Section 6 of the ORV Act talks of the exchange of reservation between SCs and STs and reads as under;

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“6. Exchange of reservation between the Scheduled Castes and Scheduled Tribes :– The reserved vacancies in appointments shall be exchanged between the Scheduled Castes and Scheduled Tribes in the event of non-availability of candidates from the respective communities, but the vacancies reserved for a particular community shall continue to be reserved for that community only for two recruitment years and if candidates are not available for appointment in particular reserved vacancies in the third year, the vacancy so filled by exchange shall be treated as reserved for the candidates of that particular community who are actually appointed: Provided that nothing in this section shall apply to reserved vacancies in appointments in respect of Class III and Class IV Posts and Services.”

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The proviso to Section 6 therefore makes it clear that the above principle of exchange of reservation between SCs and STs will not apply to “Class-III and Class-IV posts and services.” Admittedly, SS post being a contractual post, Section 3(d) makes it clear that the ORV Act will not apply. Even where an SS is subsequently appointed as a Junior Teacher and then a Primary School Teacher, which is a Class-III post, the exchange principle under Section 6 of the ORV Act would not apply.

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Turning to Section 19, it says that the provisions of the ORV Act shall have effect notwithstanding anything to the contrary in any other law or “in any rule, order or resolution made by the State Government.” Therefore, even if Clause-4.2 of the

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W.A. No.86 of 2018 Page 13 of 16

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resolution of the State Government dated 31^st May 2006 mandates that non-SC/ST candidates cannot fill up the vacancies in the posts earmarked for the SCs and STs, that resolution is subject to the ORV Act.

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Turning now to the Clause-6 of the advertisement which makes the ORV Act applicable, this again cannot be read as an amendment to either Section 3 or Section 6 of the ORV Act. On the other hand, it actually makes the ORV Act as it is applicable in toto to the selection to the posts of SS. Section 19 of the ORV Act begins with a non-obstante provision, making it clear that the ORV Act will override the resolution dated 31^st May, 2006 of the Government of Odisha.

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The sum total of the above discussion is that the ORV Act as it stands does not apply to the post of SS which is what the present appeal is concerned about.

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With the ORV Act itself making it clear that it will not apply to the recruitment for the post of SS, the question of applying Section 6 of the ORV Act and thereby insisting that the unfilled vacancies of STs should be filled up by SCs alone and nobody else, cannot be sustained in law. It was rightly rejected by the learned Single Judge.

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It is significant that the S & ME Department has clarified that the filling up of the vacancies took place on the basis of merit. As

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W.A. No.86 of 2018 Page 14 of 16

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a result, the vacancies were filled up by the candidates belong to General category, SEBC and SC all in the order of merit. There was no illegality attaching to this manner of filling up the unfilled vacancies earmarked for ST. Particularly, since the ORV Act does not apply and it prevails over the resolution dated 31^st May 2006 of the State Government.

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On the aspect of delay and laches, while it has been urged by Ms. Pami Rath, learned counsel that there was an inordinate delay in the Appellants challenging the appointment of Respondent Nos.6 to 25, and that itself would have constituted a ground for rejection of the writ petition of the present Appellants, the Court would like to observe that what goes against the present Appellants is not so much as delay, as the failure to obtain any interim order restraining the appointments of Respondent Nos.6 to 25 or their further absorption as Junior Teacher and then Primary School Teacher. This failure to challenge the subsequent developments has made it impossible for the reliefs prayed for to be granted in favour of the present Appellants. In any event in law, they could not have claimed as a matter of right that they alone should be occupying the unfilled vacancies of the ST quota.

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For all of the aforementioned reasons, the Court concurs with the view of the learned Single Judge and finds that no ground has been made out for interference in the impugned judgment. The

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writ appeal is accordingly dismissed, but in the circumstances with no order as to costs.

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Urgent certified copy of this order be granted as per rules.

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(Dr. S. Muralidhar) Chief Justice

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S.K. Guin

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( B.P. Routray )
Judge

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W.A. No.86 of 2018 Page 16 of 16

Susanta Ku.Sethi v. State of Orissa

Case brief

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What the court decided

Susanta Ku.Sethi v. State of Orissa

Case brief

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