Ramakanta Sing Vs State of Odisha

Signature Not Verified

Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, C utta ck Date: 25-Dec-2024 18:50:37

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) Nos. 10197, 10195, 10196, 10403, 10404, 10406, 10407, 10409, 10411, 10413 and 10414 of 2022

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(An application under Articles 226 & 227 of the Constitution of India)

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In W.P.(C) No.10197 of 2022 Jash Kumar Pradhan & Ors. .…… Petitioners -Versus- State of Odisha & Ors. ……. Opposite Parties In W.P.(C) No.10195 of 2022 Sumanta Kumar Naik & Ors. .…… Petitioners -Versus- State of Odisha & Ors. ……. Opposite Parties In W.P.(C) No.10196 of 2022 Ramakanta Sing & Anr. .…… Petitioners -Versus- State of Odisha & Ors. ……. Opposite Parties In W.P.(C) No.10403 of 2022 Umakanta Baral & Ors. .…… Petitioners -Versus- State of Odisha & Ors. ……. Opposite Parties In W.P.(C) No.10404 of 2022 Biswajit Rout & Ors. .…… Petitioners -Versus- State of Odisha & Ors. ……. Opposite Parties

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W.P.(C) No. 10197 of 2022 and batch Page 1 of 10

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Signature Not Verified

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Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, C utta ck Date: 25-Dec-2024 18:50:37

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*In W.P.(C) No.10406 of 2022* Soumya Ranjan Mahapatra & Ors. .… Petitioners
-Versus-
State of Odisha & Ors. ……. Opposite Parties
*In W.P.(C) No.10407 of 2022* Ajit Kumar Sahu & Ors. .… Petitioners
-Versus-
State of Odisha & Ors. ……. Opposite Parties
*In W.P.(C) No.10409 of 2022*
Bikash Nayak & Ors. .…… Petitioners
-Versus-
State of Odisha & Ors. ……. Opposite Parties
*In W.P.(C) No.10411 of 2022* Ashwini Thapa & Ors. .…… Petitioners
-Versus-
State of Odisha & Ors. ……. Opposite Parties
*In W.P.(C) No.10413 of 2022* Sishir Kumar Pal & Ors. .…… Petitioners
-Versus-
State of Odisha & Ors. ……. Opposite Parties
*In W.P.(C) No.10414 of 2022* Alok Ranjan Behera .…… Petitioners
-Versus-
State of Odisha & Ors. ……. Opposite Parties

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Signature Not Verified

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Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, C utta ck Date: 25-Dec-2024 18:50:37

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Advocate(s) appeared in this case:-

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For Petitioners : Mr. A.N. Das, Advocate For Opposite Parties : Ms. B.L.Tripathy, ASC

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CORAM : JUSTICE B.P. ROUTRAY

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JUDGMENT 5^th December 2024

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B.P. Routray,J.

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Heard Mr. A.N. Das, learned counsel for the Petitioners and Ms. B.L. Tripathy, learned ASC for StateOpposite Parties.

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All the writ petitions, being filed for similar relief challenging the common impugned order, are heard together and disposed of by this common judgment.

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The common case of all the Petitioners is that they all appointed as SEBC candidates to the post of Constable/ Sepoy pursuant to the Advertisement dated 28^th April 2011 in a due process of selection. Consequent upon their selection they joined in the regular post of Constable/Sepoy on such respective dates in the year 2011.

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Subsequently, the percentage for reservation made in the advertisement was challenged by some candidates to fix the same within the limit of 50% and the Tribunal in its order dated 4^th September 2013 at Annexure-A/2 has disposed of the O.A.

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Signature Not Verified

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Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, C utta ck Date: 25-Dec-2024 18:50:37

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fixing limit of reservation not beyond 50%. However, it was held that;

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“In view of the above, we are not inclined to entertain the prayer of the Applicants relating to quashing of Section 3 of the Odisha Reservation of Posts and Services (For Socially and Educationally Backward Classes) Act, 2008 for the present at this stage, even though it is liable to be quashed keeping in view the decisions of the Hon’ble Supreme Court discussed as above.

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However, for the subsequent advertisement inviting applications for appointment as against any civil post under the State authorities, if any, the respondent authorities shall do well to ensure that reservation point does not exceed 50% of posts advertised until the impugned SEBC Act is included in the 9^th Schedule of the Constitution as has been directed earlier, to avoid future complications and it need not be said that in case any advertisement is issued exceeding 50% reservation that will be treated as violative of the settled principle of law and against the mandates of the Constitution of India, as such shall be treated as non-est in the eye of law and accordingly shall also be liable to be quashed.”

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Said order of the Tribunal was challenged before this Court and this Court in its order dated 19^th January 2018 at Annexure-B/2 confirmed the order of the Tribunal keeping the reservation of posts within the ceiling of 50%. Then Review Petitions 48, 49, 50 and 51 of 2018 were filed and the order passed therein is as follows:-

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Signature Not Verified

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Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, C utta ck Date: 25-Dec-2024 18:50:37

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“Heard learned counsel for the review petitioners and learned Additional Government Advocate.

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These applications have been filed by the petitioners to recall/review the common order dated 19^th January 2018 passed by this Court in W.P.(C) Nos. 28493, 28501, 28553 of 2013 and 25221 of 2017 wherein inadvertently it was reflected that the impugned order of the Tribunal keeping reservation of posts within the ceiling limit of 50% (S.T.22.5%, S.C.-16.25%, S.E.B.C.-11.25%) is upheld. However, the Tribunal has not reflected the reservation of posts within the ceiling limit of 50%. Accordingly, that part of the order need be modified.

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Considering the above, since it is an inadvertent error crept into the order dated 19.01.2018, the order of the Tribunal dated 04.09.2013 is modified to the extent that the reservation of posts shall not exceed the ceiling limit of 50% (S.T.-22.5%, S.C.-16.25%, S.E.B.C.-11.25%) and merit list shall be prepared by the opposite parties accordingly and consequential steps be taken. The entire exercise shall be completed within a period of three months.

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With the aforesaid quoted order all the review petitions were disposed of.”

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Referring to the aforesaid orders, the selection list of the candidates for the posts of Constables/Sepoys were redrawn on 1^st /2^nd December 2020 by the authorities and all such Petitioners were treated as surplus. Subsequently on 30^th March 2022, 304 number of temporary posts (Ex-Cadre) in the rank of Constable/Sepoy in different districts were created to adjust such

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Signature Not Verified

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Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, C utta ck Date: 25-Dec-2024 18:50:37

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candidates, who were found surplus as per the redrawn select list, including present Petitioners. Thereafter, a further order dated 2^nd April 2022 was passed by the I.G. of Odisha Police treating all those Constables in Ex-Cadre posts without any promotional benefits. Said order dated 2^nd April 2022 is reproduced herein:-

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Sub:- Implementation of Order dated 19.01.2018 of the Hon’ble High Court passed in W.P.(C) No.28501 of 2018 and Order dated 02.05.2018 passed in RVWPET No.48, 49, 50, 51/2018, in the matter of Illias Ahmed Khan & Others-VrsState of Odisha & Others.

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In inviting a reference to the above notes subject, copies of Home Department Office Order No.10400, dated 30.03.2022 and No.10405, dated 30.03.2022 are sent herewith for information and necessary action.

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As per Office Order No.10400, dated 30.03.2022, the existing Constables/Sepoys of your District/Battalion whose names appear in the Office Order No.10400, dated 30.03.2022 shall be declared as “Ex-Cadre” from the date of issuing respective Commissionerate/District/Battalion Order. They will continue int he temporary post created for them as Ex-Cadre Constable/Sepoy till their date(s) of superannuation. They shall be allowed financial benefit in lieu of RACP/MACP benefit, if they are otherwise eligible for such benefit.

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Necessary Commissionerate/District/Battalion Order (s) for Ex-Cadre posts shall be issued on 04.04.2022 positively. Copies of orders may be sent to this Hdqrs. for reference and record.

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Signature Not Verified

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Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, C utta ck Date: 25-Dec-2024 18:50:37

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As per Office Order No.10405, dated 30.03.2022, the newly selected candidates of your District/Battalion whose names appear in the Office Order No.10405, dated 30.03.2022 shall be appointed in the rank of Constable/Sepoy. They may be allowed “Notional Joining” from the date of appointment of their immediate juniors as noted against each at Colum-4 of the above mentioned Office Order. No arrear shall be paid during the Notional period. Their “Notional Joining” shall be done against supernumerary posts created for them in the above mentioned Office Order. After actual joining of the candidates, the supernumerary posts so created shall be abolished automatically.

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The newly selected candidates shall be appointed on 15.04.2022 positively on regular basis observing normal procedure of appointment subject to satisfactory verification of their original certificates and Character & Antecedents.

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The copies of CO/DO/BO may be sent to this Hdqrs. along with status of joining of each of the newly selected candidate.

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This issue with approval of DGP.

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It is submitted on behalf of the Petitioners that they were duly selected pursuant to the advertisement issued under Annexure-1 and they were never parties in the proceedings before the Tribunal challenging the extent of reservation. Such orders passed by the Tribunal as well as by this Court earlier were behind their back and as such they being not heard with reasons cannot be replaced in Ex-Cadre posts affecting their conditions of service.

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Signature Not Verified

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Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, C utta ck Date: 25-Dec-2024 18:50:37

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Ms.Tripathy, learned ASC submits on the other hand that the select list pursuant to the advertisement under Annexure1 being redrawn under such compelling circumstances and pursuant to direction of this Court, no option was left with the authority than to exclude these surplus candidates from the select list. Rather, taking a sympathetic view all such surplus candidates are taken in Ex-Cadre posts in order to accommodate them. Therefore, no illegality has been committed on the part of the Opposite parties to treat such candidates as Ex-Cadre and there is no illegality in the impugned orders.

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It is true that the principle has been well-settled that no order of Court should affect any party without giving an opportunity of hearing to him. In such cases where the parties are seriously affected by the order of the Court they must be arrayed as parties to the lis either in person or in representative capacity. In Prabodh Verma v. Dal. Chand, AIR 1985 SC 167 , Hon’ble Supreme Court has observed that, “ A High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High Court ought to dismiss the petition for non- joinder of necessary parties. ”

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Signature Not Verified

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Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, C utta ck Date: 25-Dec-2024 18:50:37

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(also see Rasbihari Panda v. State of Odisha, AIR 1969 SC 1081, Cumbum Roadways v. Somu Transport Ltd., AIR 1966 SC 1366 ).

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Some other similarly situated Constables/Sepoys had earlier approached this Court in W.P.(C) No.38406 of 2020 and batch, where this Court has directed as follows:-

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“In view of the aforesaid analysis of law as well as the factual position involved in the present writ application, this Court is of the considered view that the impugned orders under Annexures-4 & 5 recasting the selection list which was not communicated to the petitioner although the action was taken pursuant the said recasted selection list is hereby quashed. Further, the impugned orders Annexures-5 and 6 dated 01.12.2020 and 02.12.2020 respectively are also hereby quashed. The matter is remanded back to the authority-opposite party No.2 i.e. DG & IG of Police, Odisha, Cuttack to look into the matter, and take a decision in accordance with law without being influenced by any other factor. The petitioner is directed to approach the opposite party No.2 along with a certified copy of this order within three weeks. Accordingly, the writ petition stands allowed. However, there shall be no order s to cost, let, a fresh decision be taken within two months from the date of communication of this order.”

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It is submitted by Mr.Das, learned counsel for the Petitioner that in the meantime, all such Petitioners in the aforesaid writ petitions have been taken to regular establishment and granted with consequential service benefits as well.

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Signature Not Verified

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Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, C utta ck Date: 25-Dec-2024 18:50:37

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Thus, considering the submissions that similarly situated persons along with present Petitioners have been granted the benefits of regular appointment along with consequential service benefits, present writ petitions are disposed of by quashing impugned orders under Annexures-3 & 4 with direction to the Opposite Parties to take a decision in accordance with law, without being influenced by any other factor except the fact that the Petitioners were appointed in due process of selection to a regular post, within a period of three months from the date of receipt of certified copy of this order.

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(B.P. Routray) Judge

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Sangram,Sr.Steno

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Ramakanta Sing v. State of Odisha

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Ramakanta Sing v. State of Odisha

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