State of Orissa vs Kumari Haripriya Dash and Others

This Writ Petition has been filed by the State of Orissa in the year 1999 challenging the Judgment and order passed by the Orissa administrative Tribunal, Cuttack Bench, Cuttack dated 14.12.1998 in Original Application No. 1737 (C) of 1998, though by the said Judgment, which is under challenge, several Original Applications were disposed of. After this writ petition was filed, a Division Bench of this Court granted an interim Order dated 27.07.2000 to the effect at pending disposal of the writ application, operation of the impugned order passed by the Tribunal shall remain stayed and if any appointment is made during the pendency of the writ application, the same shall be subject to its result. Thereafter, several applications for interventions were filed and those were allowed. Two Division Benches of this Court refused to take up this matter and the matter went out of list.

Heard Learned Counsel for the parties.

The impugned Judgment of the Tribunal is not concerned with the question of promotion but the same is concerned with the question of initial appointment on the basis of a select list prepared by the Orissa Public Service Commission (hereinafter referred to as "the O.P.S.C"). The said select list was prepared after conducting the combined recruitment examination for appointment to Orissa Civil Services. The challenge in the Original Application was mostly confined to the question of reservation. It may be noted that the Judgment of the Tribunal in respect of the other O.As, which has been separately dealt by the Tribunal with, has not been challenged and the Tribunal''s Judgment so far as other original Applications is concerned has become final against the State. The grievance in this Original Application was confined only to one lady candidate, namely, Kumari Haripriya Dash, the applicant Original Application No. 737 (C) of 1998.

The Tribunal after considering the ratio in the case of Indra Sawhney etc. etc Vs. Union of India and others, etc. etc., held that all the 377 candidates included in the select list published by the Commission shall be appointed subject to verification of the allegation about certain candidates furnishing false certificates. The Tribunal also directed that immediate action be taken for the medical examination of those, who had not-been asked to appear before the Medical Board when it met. The Tribunal made it clear that reservation cannot exceed 50% of the total posts in view of the ratio of the Indra Sawhney case. In paragraph 16 of the Judgment, the Tribunal held that in the select list of 377 candidates all the 144 General Candidates have to be appointed. Coming to the said finding, the Tribunalhas quoted sub-paragraph 4 of Paragraph-700 of Indra Sawhney etc. etc Vs. Union of India and others, etc. etc., That is the concluding paragraph of Indra Sawhney case. The Tribunal also made it clear that by no stretch of imagination can Orissa be treated as a far-flung and remote area nor can, the people of the State be stated to be out of the mainstream of national life. We have no hesitation to agree with the aforesaid conclusion of the Tribunal. The Learned Counsel for the State also is not in a position to differ with the said conclusion of the Tribunal.

Learned Counsel for the State (Petitioner herein) has, however, drawn attention of this Court to the latest Judgment of the Supreme Court in the case of M. Nagaraj and Others Vs. Union of India (UOI) and Others, . In paragraph 123, which is one of the concluding paragraphs, the Learned Judges-in M. Nagaraj''s case (supra) held that even if the State, as compelling reasons, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50 % or obliterate the creamy layer or extend the reservation indefinitely. Though in Nagaraj''s case the validity of the 77th, 81th, 82nd and 85th constitutional amendments were challenged, Constitution bench of the Supreme Court affirmed all the Constitutional amendments and has reiterated the ratio of Indra Sawhney (supra). That being the settled position of law as on today, we see no illegality in the Judgment of the Tribunal. Learned Counsel has also produced before us a Resolution of Government of Orissa in ST & SC Development Department dated 15.03.2007, which is also to the same effect. The relevant portion of the said resolution is set out herein below:

Hon''ble Supreme Court in case of M. Nagaraj and Ors. v. Union of India and Ors. in their Judgment delivered on 19.10.2006 have upheld the validity of 77th, 81st, 82nd an 85th Constitutional Amendments and have made it clear that the reservation cannot exceed 50 % ceiling in any circumstances

In that view of the matter, we affirm the Judgment of the Tribunal and dismiss the Writ Petition.

The Interim order is vacated accordingly.

In view of dismissal of the Writ Petition, all the ending Misc. Cases also stand dismissed.