Umakanta Chhotaray Vs State of Orissa

1. Instant writ petition is filed by the petitioner challenging the validity of the impugned order dated 11^th November, 2019 as at Annexure-8 and to direct the opposite parties to appoint him as an Assistant Driver having participated in the selection process and to release all service and consequential benefits in his favour upon such appointment on the grounds inter alia that the decision of opposite party No.2 is not legally tenable, hence, liable to be interfered with and set aside.

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2. Bereft of unnecessary details, the facts of the case are that an advertisement was published by opposite party No.3 to fill up 437 posts of Assistant Driver stipulating therein the eligibility criteria. A copy of the advertisement is at

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Annexure-1, referring to which, it is pleaded by the petitioner that he being an SEBC category candidate applied to be considered for appointment as Assistant Driver and although found to be meritorious, some of the candidates of the UR category securing less marks were selected with the merit list finally published as per Annexure-2. It is further claimed by the petitioner that information under the RTI Act was applied to him and it was furnished vide Annexure-3 and with such information received, it is alleged that on the face of record, illegality has been committed denying him the appointment, inasmuch as, the select list could not have been prepared in the manner contemplated. It is further claimed that the SEBC candidates secured more marks than the candidates of UR category but have not been selected, since, the petitioner secured 46.5 marks higher than the cutoff mark for the UR candidates. Against such selection and merit list prepared and as the petitioner was not successful, the same has been questioned.

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3. In fact, the advertisement to fill up the posts of Assistant Driver in Odisha Police Motor Transport was published in the year 2013 and the result was declared on 17^th November, 2013 but, some of the Home Guard candidates filed O.A. No.3931(C) of 2013 in the Odisha Administrative Tribunal with a plea of 10% horizontal reservation having not been applied and while implementing the order dated 7^th May, 2014 passed therein, number of candidates earlier selected were terminated from service in the year 2015 on the ground

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that they had availed age and fee relaxation. Thereafter, O.A. No.4308(C) of 2014 was filed and disposed of with the select list being quashed followed by a direction to redraw the same. In compliance of the directions issued in the said O.A., a revised select list was published on 8^th April, 2016, wherein, 71 candidates were included with 55 candidates being delisted. According to the petitioner, even after redrawal of the revised select list, some of the candidates, who secured less marks than him were allowed to continue but he was not, despite a representation to opposite party No.2, who rejected it on the ground that the marks scored by him to be less than the cut-off mark for SEBC candidates.

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4. The additional claim is that the selection process has not been accomplished in accordance with law. In fact, according to the petitioner, relaxation of age and fee are no relaxation as held by the Apex Court in Jitendra Kumar Singh and another Vrs. State of U.P. and others (2010) 3 SCC 119 , wherein, it has been observed that despite such relaxation, a reserved category candidate shall have to be considered against the posts earmarked for the unreserved and hence, eligible for open competition and in one of such cases, where a candidate of UR category secured less marks following a decision in W.P.(C) No.4101 of 2019, it has been confirmed by the Apex Court in SLP No.21074 of 2019 dismissing it on 5^th June, 2020, whereafter, he again filed W.P.(C) No.20783 of 2022 disposed of on 29^th September, 2022 with a direction to appoint him and was

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finally appointed on 17^th November, 2022 and in another case, a similar direction has been issued in W.P.(C) No.9439 of 2024 by order dated 25^th September, 2024 at Annexure-7. Under the above circumstances, the petitioner demands that he should have been selected and hence, the decision by order at Annexure-8 of opposite party No.2 is required to be interfered with in the interest of justice.

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5. On the contrary, opposite party Nos.1 to 3 opposed the plea of the petitioner and filed the counter affidavit stating therein that the petitioner secured 46.5 marks less than the cut-off mark for SEBC category. It is also pleaded that after completion of selection, a select list of 397 candidates was published, out of which, 38 posts for ST category and 2 posts of UR category remained vacant due to nonavailability of suitable candidates. According to the counter, in view of the order in O.A. No.3931(C) of 2013, a fresh merit list was prepared to provide 10% horizontal reservation meant for the Home Guards and accordingly, 44 candidates were selected and some of the candidates earlier included in the list had to be disengaged and discharged from service. It is stated that the revised list was once again directed to be freshly drawn following the order in O.A. No.4308(C) of 2014 as per the ratio decided in Jitendra Kumar Singh (supra) and therein, the petitioner could not find a place as he secured 46.5 marks against the cut-off mark of 48 for SEBC category and 49 marks for UR candidates. A copy of the select list as at Annexure-A/3

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(series) is referred to by the opposite parties to plead that there has been no illegality committed by opposite party No.2 in rejecting the representation of the petitioner as per Annexure-C/3 (the same as Annexure-8). In reply to the same, rejoinder affidavit is filed by the petitioner reiterating the facts already pleaded with the claim that age relaxation is not a bar and a candidate of any reserved category is to be considered for selection in open competition. The plea is predominantly based on a claim that the petitioner, since secured more marks than some UR category candidates, who have been absorbed following the Court’s orders, he being similarly situated, could have been considered for appointment.

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6. Heard Ms. Pattnaik, learned counsel for the petitioner and Ms. Dash, learned ASC for the State.

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7. Admittedly, the advertisement as per Annexure-1 was published to fill up the posts of Assistant Driver. Since, 10% horizontal reservation was not applied, the select list was quashed by an order in O.A. No.3931(C) of 2014 and a revised one was prepared. Once again, the said list was questioned by some candidates, who were removed from service and at last, pursuant to the order in O.A. No.4314 (C) of 2014 and batch of cases, the Odisha Administrative Tribunal set aside the termination orders and directed their reinstatement in service and also to prepare a fresh merit list following the principles decided in Jitendra Kumar Singh (supra). A re-revised select list was finally prepared on 8^th

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April, 2016 and therein, 71 candidates were included with 55 candidates stood excluded. The aforesaid lists are at Annexures-4 and 5. Initially leading to the revision of the selection and once again the select list being redrawn, there has been inclusion and exclusion of candidates therefrom and in the meanwhile, the petitioner approached opposite party No.2 with a representation i.e. Annexure-6 but as earlier stated, it was not disposed of and hence, he had to file O.A. No.1470(C) of 2019 with an order therein dated 26^th July, 2019 as at Annexure-7 passed, whereafter, it led to the passing of the rejection order i.e. Annexure-8 on the premise that the marks secured by him is less than the cutoff mark fixed for SEBC and also UR category.

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8. The revised list was prepared and it was followed by a final list pursuant to the order in O.A. No.4314(C) of 2014 and batch of cases by following the decisions of the Apex Court in Jitendra Kumar Singh (supra) and R.K. Sabharwal and others Vrs. State of Punjab and others (1995) 2 SCC 745 and therein, the petitioner did not find place and as per Annexure-8, it was for the reason that he scored less marks than the cut-off mark pegged at for SEBC and UR category candidates. The question is, whether, any illegality has been committed by opposite party No.2, while dealing with the representation of the petitioner consequent to the order in O.A. No.1470(C) of 2019?

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9. Law is well settled that vertical and horizontal reservations are to be applied in the manner the law

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prescribes. The selection with such reservations is to be carried out in the following manner, such as, first of all, an open merit list is to be prepared in respect of each category and thereafter, to find out as to how many candidates belonging to the special reservations (horizontal) to have been selected and if the number is less, then such number of horizontal reservation candidates as per the quota are to be adjusted/accommodated against respective vertical reservation by deleting the corresponding number of nonreserved candidates therefrom. If the quota fixed for the horizontal reservation is already satisfied, no further question of selection would arise. If such an exercise is not undertaken, it would be in deviation of the reservation rules. It is also a settled law that if a reserved category candidate is selected on merit against UR vacancies, the entire reservation quota shall remain available for such reserved candidates in addition to the candidates selected under the open competition as has been held by the Apex Court in Indra Sawhney and others Vrs. Union of India and others 1992 Supp (3) SCC 217 ; R.K. Sabharwal (supra); Union of India Vrs. Veerpal Singh Chowhan (1995) 6 SCC 684 ; and reiterated in Ritesh R. Sah Vrs. Dr. Y.L Yamul and others (1996) 3 SCC 253 .

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10. The moot question is, whether, any error has been committed by opposite party No.2 in the preparation of the re-revised select list? According to the petitioner, the selection is not in accordance with law as he scored more

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marks but left out from the select list and some of the candidates with less marks secured are still in service. The primary ground of challenge is with a plea that the petitioner was to be included in the select list as he was initially found to have scored more marks than some of the UR category candidates. But, the fact remains, the original select was set aside leading to the preparation of a revised one. Not only that, the said list was further revised and redrawn. With the aforesaid development having taken place, the Court is to examine, whether, any such plea of the petitioner demanding selection still survive?

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11. The objection of the opposite parties is that the petitioner could not have been picked up as he secured less mark and below the cut-off marks of SEBC and UR category candidates. The original list was revised since horizontal reservation was not applied. Such list had to be redrawn as some of the candidates claiming age relaxation were not selected despite having scored more marks than the UR category candidates and confined to the respective reserved categories. Such an exercise at last resulted in the preparation of the final select list and under such circumstances, the Court is of the humble view that the petitioner’s plea is no more acceptable as he was found to have secured less marks and below the cut-off mark fixed for SEBC and UR candidates. A candidate may be picked up provided he is found suitable either as a candidate selected through open competition or against the reserved

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vacancies. Admittedly, the petitioner could not qualify with the select list revised for the reason that he scored 46.5 marks, whereas, the cut-off marks for SCBC & UR categories stood at 48 and 49 respectively. It is not that the petitioner demands selection availing any horizontal reservation. In that case, the petitioner had to compete against the UR category candidates in open competition or else at least, was to secure marks more than the cut-off fixed for the SEBC category. Since, the petitioner failed in both despite a request as per Annexure-6 and order of the learned Tribunal in O.A. No.1470(C) of 2019 to consider the plea, the Court is of the conclusion that opposite party No.2 did not commit any error or illegality, while complying the directions issued therein as per Annexure-7 with a decision at last vide Annexure-8. In other words, the impugned decision of opposite party No.2 having rejected the representation of the petitioner by order dated 11^th November, 2019 as at Annexure-8 does not suffer from any infirmity as there has been revision of the select list complying the reservation rules and keeping in view the principles enunciated by the Apex Court in the case laws referred to herein before. That apart, nothing is shown on record to demonstrate any such non-compliance. Furthermore, continuation of some other candidates claimed to be similarly situated like the petitioner is found to be under the circumstances narrated as made to reveal from the State’s response on record, hence, it cannot be a ground to demand equal treatment.

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12. Accordingly, it is ordered.

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13. In the result, the writ petition stands dismissed.

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(R.K. Pattanaik) Judge

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Balaram

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Signature Not Verified