Deepak Kumar Nayak vs State Of Odisha & Others Vs

Sashikanta Mishra, J

The petitioner has filed this writ application with the following prayer.

“The petitioner, therefore, prays that this Hon’ble Court may graciously be pleased to admit the writ application, issue rule NISI to the opposite parties to show cause as to :

(i) Why the provisional merit list for the post of Sikshya Sahayak, 2016-17 for category; SEBC, Post: Category-II- Arts of Nabarangpur District under Annexure-14 and its’ approval as final merit list and any consequential action thereon shall not be declared as bad and illegal;

AND

(ii) Why the opposite parties shall not be directed to draw the final merit list afresh ignoring the provisional merit list vide Annexure-14 in respect of category: SEBC, Post: Category II-Arts of Nabarangpur District strictly in accordance with guidelines vide annexure-2, by incorporating the name of Petitioner within stipulated period;

AND

And if the Opp.Parties do not show cause or show insufficient cause, then rule be made absolute by issuing appropriate writ/writs, direction/directions and any other order/orders as deemed fit and proper may be passed.

And for this act of kindness the petitioner shall as in duty bound ever pray.”

Bereft of unnecessary facts, the case of the petitioner is that vide letter dated 26.12.2016, the Commissioner-cum-Secretary, Government in School and Mass Education Department informed the State Project Director, OPEPA regarding the decision of the Government to engage 14087 numbers of Sikshya Sahayaks during the year 2016-17 as also the guidelines for selection. The petitioner applied against Category-2 Teacher in Arts with his social category being SEBC. He opted for Nabarangpur district as his first preference. In the data sheet for engagement of Sikshya Sahayaks hosted in the OPEPA website, the petitioner’s name was reflected at serial No.315 with total marks at 189.4254. Pursuant to notification issued by the District Project Coordinator(DPC), Nabarangpur on 18.01.2018, the petitioner appeared along with his original documents for verification, which was done. An eligible list of candidates, whose certificates were verified, was published. However, in the provisional merit list published in respect of Nabarangpur district, the name of the petitioner did not appear. On 09.03.2018, objections were invited against the said list by the State Project Director, OPEPA. The petitioner submitted a representation on 13.03.2018 before the DPC, Nabarangpur specifically stating that applicants securing less marks than him had been included in the provisional list. Again, on 21.03.2018, a provisional list was published but the name of the petitioner was not included. On the contrary, persons, who had not opted Nabrangpur as their first preference district, were included in the list belonging to different categories. In so far as SEBC is concerned, out of 10 vacancies, 3 were reserved for women and 7 for men. 3 women candidates were enlisted at serial No. 1, 2 & 3. Serial Nos.4 and 5 were SEBC (Sports Persons Men) category. Serial No.6 was SEBC (PH) category and serial Nos. 7 to 9, despite not opting Nabarangpur as their first preference district, were included as PH(VI), PH(OH) and PH(HI) respectively. Furthermore, a candidate at serial No. 10, despite opting for Nabarangpur as 5th preference district, was also enlisted. The petitioner, despite securing more marks was not enlisted. It is his further case that had the list of SEBC Men opting Nabarangpur as first preference district been prepared, his position would have been at serial No.4. Moreover, PH candidates were adjusted in the category of SEBC illegally. On 28.03.2018, final merit list was published.

The stand of the State opposite parties is that the petitioner had applied under +3 Arts B.Ed by opting Nabarangpur as his first preference district. He was placed in the eligible list with total percentage of 189.4254 marks. A meeting was conducted at the Government level on 15.03.2018 consisting of Deputy Director, Secondary Education; Deputy Director, Elementary Education; Special Secretary to Government, S & ME Department; Deputy Secretary to Government, SC & ST Development Department; Deputy Director (Admn.) OPEPA; and Sr. Technical Director, NIC, Bhubaneswar, wherein certain decisions were taken. As per the said decision, the post and category wise provisional merit list of candidates in respect of Nabarangpur district was published. The petitioner having availed age relaxation of five years under SEBC category could have been considered only for that category. As regards the candidates under SEBC category as per the merit list, it is stated that candidates at serial Nos. 4 & 5 had availed sports person quota and placed under SEBC category; serial Nos. 6 to 10 had availed PH quota and were placed in SEBC category to satisfy the PH reservation quota. It is further stated that such adjustment was made in line with the provisions of the Right of Persons with Disability Act, 2016 (in short “2016 Act”), which came into force from 19.04.2017 providing for 4% reservation for persons with disability. Further, 14087 posts advertised include some unfilled vacancies of 2014-15. Two posts under sports +3 Arts B.Ed. category remained unfilled during 2014-15, which were filled up during 2016-17. Out of 124 posts meant for category-2 Arts for Nabrangpur District, 10 were reserved for SEBC category, out of which 3 were reserved for women, 5 for PH candidates and 2 for sports persons. A merit list was prepared accordingly.

Heard Mr. S.N. Sahoo, learned counsel for the petitioner and Mr. S.N. Pattnaik, learned Addl. Government Advocate for the State. Be it noted that though the private opposite parties (opposite party Nos. 5 to 13) were represented by counsel, yet there was no appearance from their side during hearing, despite grant of repeated opportunities.

Mr. Sahoo would argue that the opposite party authorities have not followed the dictum of Supreme Court while preparing the merit list and have wrongly applied the principle of horizontal reservation. As per the law laid down in Rajesh Kumar Daria vs. Rajasthan Public Service Commission and others (2007) 8 SCC 785 and Saurav Yadav and others vs. State of Uttar Pradesh and others (2021) 4 SCC 542, (2021) 4 SCC 452, the authorities ought to have prepared the list by applying vertical reservation on merit and thereafter applied horizontal reservation according to appropriate social category. According to Mr. Sahoo, the authorities have further committed illegality in selecting two candidates under sports persons category instead of one as per the resolution dated 18.11.1985 and 11.12.2014. Further, the candidate at serial No. 9 never joined. In so far as candidates at serial Nos. 7 to 10 are concerned, they never preferred Nabarangpur as their first preference district. Mr. Sahoo emphatically argues that the select list is also wrong for the reason that the authorities have applied the provisions of 2016 Act even though the same came into force on 19.04.2017. In so far as reservation of PH candidates is concerned, the 1995 Act is applicable providing for 3% reservation, which includes 1% for women. Thus, the total vacancy being 124, 2 PH candidates (men) and 1 PH candidate (women) should have been selected. Instead, the authorities have included 5 PH candidates, which is completely illegal.

Per contra, Mr. S.N. Pattnaik would argue that admittedly 14087 vacancies were advertised, which includes the leftover vacancies of the previous recruitment process, i.e. 2014-15. A total no. of 989 vacancies were notified for Nabarangpur, out of which 124 were meant for category –II Arts (+3 B.Ed. Arts). Of the said posts, 10 including 3 women were reserved for SEBC. Since in the previous recruitment process 2 vacancies belonging to sports persons were carried over, the candidates at serial No. 4 & 5, who belong to the said quota with SEBC as their social category, were included. Similarly, the candidates at serial No. 6 to 10 were included but under the PH quota. Though the petitioner secured higher marks than some of the said candidates, he could not have been included in the list as the unfilled quota of sports persons and PH candidates had to be filled.

Though much has been pleaded and argued, the basic dispute boils down to the correctness of the methodology adopted by the opposite party authorities in preparing the merit list. The basic facts are not disputed inasmuch as the advertisement was published on 26.12.2016, wherein 14087 vacancies were notified including 989 vacancies for Nabarangpur. In so far as category–II is concerned, 124 vacancies were notified for Nabrangpur. The State has provided the breakup of said 124 vacancies in its pleadings in the following manner, which are not disputed.

Category                                              Vacancies

UR                                                       48 (15-W)

SEBC                                                   10 (3-W)

SC                                                        14 (5-W)

ST                                                        52 (18-W)

__________________________________________

Total                                                    124 (41-W)

So, in so far as SEBC is concerned, the total vacancies were 10 including 3 women. In the merit list, serial Nos.1 to 3 were women candidates and thus, the women quota was satisfied. It has been stated that the unfilled vacancies of the sports quota as well as PH quota being 2 and 5 respectively for the previous recruitment year i.e. 2014-15 were carried forward. This averment in the pleadings and assertion by the State Counsel during hearing does not find support from the advertisement or the resolution dated 26.12.2016 or the corrigenda issued on 30.11.2017 and 01.12.2017. The resolution dated 26.12.2016 simply mentions that the Government had approved engagement of 14087 Sikshya Sahayaks during 2016-17. The district-wise and category wise breakup of the vacancies issued by the Government vide letter dated 17.01.2017 also does not mention anything about the vacancies of the previous year being carried forward. Therefore, it is difficult to accept that the total posts approved for being filled up i.e., 14087 included some unfilled vacancies of the year 2014-15, a fact stated for the first time in the counter filed in this Court.

Be that as it may. It has been stated that out of 10 SEBC vacancies 3 being reserved for women, 7 vacancies remained, out of which 2 were reserved for sports persons and 5 for PH category. In so far as the sports quota is concerned, it has not been disputed that as per the relevant Government resolutions dated 18.11.1985 and 11.12.2014, 1% of the vacancies is to be filled up. This makes the sports quota as one. Though it is stated that two persons were selected to meet the leftover quota of 2014-15, in view of the finding of this Court that there is no evidence to show that any such vacancies were carried forward, it is difficult to accept the stand of the State as above. That apart, it is stated that 5 PH vacancies were reserved, which includes the leftover quota. Again, no details have been put forward, such as what was the actual number of vacancies carried forward from the previous recruitment year and what was the vacancy of the current year. That apart, it is stated that as per the provisions of the 2016 Act, 4% of the vacancies is to be reserved for PH candidates. At this juncture it would be profitable to refer to the 2016 Act, which admittedly came into force on 19.04.2017. As per Section 34 of the said Act, the minimum percentage of reservation for PH candidates is to be 4. Significantly the advertisement was issued on 26.12.2016 when the 1995 Act was in force. Section 33 of the 1995 provides for minimum reservation of 3% for PH candidates. Even the notification dated 26.12.2016 provides under Clause-2(ii) that “in case of PH candidates, provisions contained in the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and GA department instructions thereof shall be followed. Thus, the resolution itself makes it clear that 1995 Act is to apply. The resolution dated 05.09.2017 issued by the Social Security & Empowerment of Persons with Disabilities Department relating to reservation and other concessions for the persons with disabilities can only be relevant to cases where the 2016 Act is applicable. This Court fails to understand as to how the 2016 Act would apply when the advertisement itself was published prior to coming into force of the said Act and more importantly, specified that the 1995 Act would apply. It is trite that law prevailing as on the date of advertisement is to be applied.

In the case of Tej Prakash Pathak & Ors. vs. Rajasthan High Court and Others (Civil Appeal No. 2634 of 2013), dated 20.03.2013 the Supreme Court held that once the recruitment process has commenced, the State cannot tinker with the rules of the game. So, on the face of the mandate of 1995 Act being to provide 3% reservation for PH candidates, the authorities could not have gone beyond it by citing the 2016 Rules, which was inapplicable as the recruitment process had commenced before coming into force of the later Act. Thus, 3% out of 10 i.e., only 3 candidates belonging to PH could have been selected.

To sum up, this Court finds that there was no justified reason to include 2 persons from the sports quota and 5 persons from PH quota in the list. Of them, 1 sports person and 2 PH candidates must be held to have been included in excess of the permissible limit. Reference to the provisional merit list would show that the petitioner having secured 189.4254% marks had secured more marks than all the candidates. Therefore, as rightly contended by Mr. Sahoo, he ought to have been placed at least at Sl. No.4 i.e. below 3 women candidates. If 1 sport person and 3 PH candidates are accounted for, it would mean, the candidate at serial No.4 under sport persons quota would be included while the candidate at serial No.5 of the said quota would have to be excluded. Similarly, the candidates at serial Nos. 6, 7 & 8 would be included while the candidates at serial No. 9 & 10 would be excluded. Thus, there would have been three places available to be filled up. It is stated at the bar that the candidate at Serial No. 9, Naresh Kumar Kand did not join. So if the petitioner is placed at serial No.5 none of the private opposite parties would be affected.

Thus, from what has been narrated hereinbefore it is clear that the petitioner has made out a good case for interference by this Court. However, there being one place available to be filled up in which the petitioner can be comfortably included, this Court does not find any reason to declare the final merit list as bad and illegal as prayed for by the petitioner more so as the persons held to have been appointed in excess of the permissible limit have rendered service to the State for quite some time now. This Court would rather direct the authorities concerned to modify the merit list to place the petitioner at the appropriate place and to issue order of engagement accordingly without any further delay. Necessary order in this regard shall be passed within two months from the date of production of certified copy of this order by the petitioner.

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