JUDGMENT N. PRUSTY, CHAIRMAN, J. The applicant, who had applied for the post of Junior Lecturer in the discipline of Education pursuant to the advertisement No. 6 dated 1991-92 (Annexure-1) and whose name finds place at serial No. 23 as Scheduled Caste candidate in the select list (Annexure-4), had filed this O.A. on 22.12.1992 with a prayer for direction to the respondents to recruit the applicant for appointment as per the Selection List published under Annexure-4. 2. Heard Mr. J. Mohanty, learned counsel for the applicant, Mr. R.K. Dash, learned Government Advocate and Mr. S.B. Jena, learned counsel appearing on behalf of the OPSC. 3. Mr. Mohanty, learned counsel submitted that the applicant, who belongs to Scheduled Caste, having 1st Class Master's degree in Education and an M. Phill degree, had applied for engagement in the post of Junior Lecturer in the discipline of Education in Class-II of O.E.S. (Higher Secondary) for Government Higher Secondary Schools in Odisha, in pursuance to the advertisement No. 6 of 1991-92 issued by the O.P.S.C. inviting applications in the prescribed form from the eligible candidates for engagement of 218 posts of Junior Lecturers in different disciplines (Annexure-1). In the said advertisement out of 24 vacancies in the discipline of Education, 4 posts for S.C., 6 posts for S.T. and one post for physically handicapped were reserved. The applicant was called to appear in the written test and viva voce. Thereafter the O.P.S.C. published list of 24 candidates in order of merit for recruitment to the posts of Junior Lecturer in Education. (Annexure-4) and in the said select list the applicant's name finds place at serial No. 23 as Scheduled Caste candidate. Only one S.T. candidate at SI. No. 15 in the select list was selected as against 6 posts reserved for ST category. Even though 4 posts were reserved for SC candidates, 9 candidates including 5 candidates belonging to SC category in lieu of 5 ST candidates were selected due to non-availability of ST candidates. Even though there is a clear term in note to para 4 of the advertisement (Annexure-1) to the effect that in case of non-availability of suitable S.T. candidates, the posts may be filled up by suitable S.C. candidates and vice versa on exchange basis as per rule. Even though there is a clear term in note to para 4 of the advertisement (Annexure-1) to the effect that in case of non-availability of suitable S.T. candidates, the posts may be filled up by suitable S.C. candidates and vice versa on exchange basis as per rule. In case of non-availability of suitable P.H. candidates, the posts reserved for them may be filled up by general conditions, the cases of 5 candidates including the applicant have not been considered for their appointment as against 5 S.T. vacancies on exchange basis as per rule. Hence the case. 4. Mr. R.K. Dash, learned Government Advocate, on the basis of averments made in the counter, submitted that 24 vacancies were notified to OPSC for selection of suitable candidates for the post of Junior Lecturer in Education. As against the requirement of 4 S.C. candidates 6 S.T. candidates and one physically Handicapped Candidate, OPSC have recommended 9 S.C. candidates, one S.T. candidate and one physically Handicapped candidate. As required number of suitable S.C. candidates were not available, O.P.S.C. recommended 5 S.T. candidates in lieu of 5 ST candidates assuming that the S.C. candidates could be appointed against posts reserved for S.T. candidates on exchanges basis. Since as per provision of Section 9 of the Orissa Reservation of Vacancies in posts and Services (for SC and ST) Act, 1975 such exchange principle is not admissible in initial appointment, as such the cases of 5 S.C. candidates recommended by OPSC in lieu of 5 ST candidates could not be taken into consideration by Government for appointment as Junior Lecturer in Education. In order to fill up the vacancies reserved for S.T. candidates in this subject, OPSC have already been requested to make a special recruitment as required under the Act. Exchange would be permissible only if required numbers of candidates are not available from the concerned reserved categories through this special recruitment. The candidate at SI. No. 24 in the merit list is a physically Handicapped candidate recommended by OPSC against the single reserved vacancy for this category of candidates as per 100 point roster of O.R.V. Act. As such he has been appointed as Junior Lecturer in Education. Since the applicant secured 23rd position in the select list and he was recommended by OPSC in lieu of S.T. candidate, he has not been appointed. As such he has been appointed as Junior Lecturer in Education. Since the applicant secured 23rd position in the select list and he was recommended by OPSC in lieu of S.T. candidate, he has not been appointed. As such, the relief as has been sought for by the applicant in this O.A. is liable to be rejected. 5. A Two-Member Bench of this Tribunal vide order dated 11.3.1996 in O.A. 397/1993 had initially decided the similar matter relating to exchange principle to the effect that : "3. Having perused the Original Application, the counter affidavits and the O.R.V. Act, we are unable to agree with the stand taken by the Government. In the course of hearing learned Standing Counsel, referring to Section 9 of the O.R.V. Act argued that exchange can be resorted to only after conducting a special recruitment for the category for which the required number of candidates were not available for initial appointment. We have referred to Section 6 and 9 of the Act. Section 6 which incorporates the principles of exchange between Scheduled Castes and Scheduled Tribe, stipulates that the reserved vacancies for appointment shall be exchanged between the Scheduled Caste and Scheduled Tribes in the event of non-availability of candidates from the respective community, 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 for that particular community who are actually appointed. Section 9(4) states that if the required number of Scheduled Castes and Scheduled Tribe candidates are not available for filling up the reserved vacancies, a fresh recruitment may be made only from candidates belonging to the Scheduled Castes or the Scheduled Tribes as the case may be for filling up the remaining reserved vacancies. Section 9(4) has clubbed together the vacancies for Scheduled Caste and Scheduled Tribe into one group, namely "reserved vacancies" and stipulates that if sufficient number of Scheduled Caste and Scheduled Tribe candidates are not available for filling up the reserved vacancies, then a fresh recruitment has to be made only for Scheduled Caste or Scheduled Tribe as the case may be for filling up the remaining reserved vacancies. Such a situation has not arisen in the instant case since Scheduled Caste candidates were available for filling up the vacancies meant for Scheduled Tribe also. Hence the principle of exchange between Scheduled Caste and Scheduled Tribe incorporated in Section 6 should have been applied in this case. 4. Secondly, the advertisement issued by the Public Service Commission also clearly mentions that if sufficient number of S.C. or S.T. Candidates are not available, the reserved vacancies would be filled up on exchange basis. The advertisement in question must have been finalized with the concurrence of the State Government as is the practice and then published in the leading dailies, which too must have come to the notice of the Respondents. There is nothing in the Govt. counter to indicate that they objected to the enabling clause incorporated in that advertisement. Thereafter, it is not open for them to take a different stand now. 5. Accordingly, we direct that in conformity with the note under the reservation clause of the advertisement issued by the Public Service Commission, the applicants should be appointed against the left over vacancies earmarked for Scheduled Tribe candidates for which Scheduled Tribe candidates were not available in the selection conducted by the Public Service Commission. The three posts which had been kept vacant by virtue of the interim order dtd. 15.3.1993 shall now be filled up by giving appointment to the applicants. However, the subsequent Two-Member Bench while deciding the present O.A. took a view that "Section 9 of the O.R.V. Act is applicable in this case which specifically provides for initial recruitment" and disagreed with the earlier finding of the Tribunal given by a two-Member Bench in O.A. 397/1993 and directed that the case record along with O.A. 397/1997 be placed before the Hon'ble Chairman for appropriate orders. 6. The Hon'ble Chairman had directed to put up this matter before a larger Bench consisting of Hon'ble Mr. J.M. Patnaik, Member (Judicial), Hon'ble Mr. A. Pattanayak, Member (Admn.) and Hon'ble Dr. D.K. Sahu, Member (Judl.). 7. 6. The Hon'ble Chairman had directed to put up this matter before a larger Bench consisting of Hon'ble Mr. J.M. Patnaik, Member (Judicial), Hon'ble Mr. A. Pattanayak, Member (Admn.) and Hon'ble Dr. D.K. Sahu, Member (Judl.). 7. When this matter was taken up on 15.11.2011, the larger Bench observed that : "The matter has been referred to the larger Bench to decide on the following points of law as two Division Benches of this Tribunal have differed in their views regarding applicability of Section 6 and Section 9 of the ORV in Posts and Services (for SC & ST) Act, 1975 in their judgment in O.A. 397/93 and 919 (c)/92. It has been decided in O.A. 397/93 that Section 9 of the ORV Act should be read with Section 6 of the ORV Act and even in the initial recruitment and exchange of the posts shall permissible between SC & ST candidates without going through the procedure of undertaking the special recruitment drive as prescribed in Section 9 of the ORV in Posts and Services (for SC/ST) Act before exchange of posts. However, in O.A. 919(c)/92 it has been held by another Division Bench of this Tribunal that such exchange is not permissible in initial recruitment and that such exchange of posts between SC and ST categories can only take place after observing the procedure prescribed in Section 9 of the ORV in Posts and Services (for SC and ST) Act, 1975 i.e. special drive to fill up these reserved category posts and thereafter only principle of exchange of posts between SC and ST candidates in initial recruitment shall be applicable. As these are two different judgments in the same matter in two cases filed in connection with the same recruitment test, it is necessary for this Tribunal now to decide on the issue of applicability of Section 6 of the ORV in Posts and Services (for SC/ST Act, 1975 in the matter of initial recruitment and settle if the exchange principle between SC and ST shall be applicable before resorting to the procedure prescribed in Section 9 of the said Act i.e. undertaking a special recruitment drive before appointing personnel by exchanging vacancies between SC and ST candidates. This reference be circulated among the learned counsel for the applicant and the learned Govt. This reference be circulated among the learned counsel for the applicant and the learned Govt. Advocate sufficiently ahead before this Bench sits next, so that they are able to contribute effectively during hearing of this case." 8. Thereafter this matter was listed on 16.8.2013 before this larger Bench consisting Hon'ble Chairman, Mr. A. Pattanayak, Member (Admn.) and Hon'ble Mr. M.P. Mishra, Member (Judl.). 9. Mr. R.K. Dash, learned Govt. Advocate filed written note of submission on behalf of the respondents in stating that at the initial stage of recruitment if a particular reserved category candidate is not available to be filled up against the existing vacancies, a fresh advertisement will be issued for filling up the said particular reserved category vacancies in the subsequent advertisement if the said vacancies under that particular reserved category will not be filled up, then the same will be filed up by general category candidate in accordance with the procedure provided in Section 6 and 7 of the O.R.V. Act, 1975. As such at the initial recruitment test the decision of the OPSC exchanging the posts meant for ST reserved category to SC reserved category was not in accordance with the provisions of the ORV Act, 1975. 10. The reference in this O.A. is relating to the applicability of Section 6 of the ORV in Posts and Services (for SC/ST) Act, 1975 in the matter of initial recruitment and settle if the exchange principle between SC and ST shall be applicable before resorting to the procedure prescribed in Section 9 of the said Act i.e. undertaking a special recruitment drive before appointing personnel by exchanging vacancies between SC and ST candidate. 11. Sections 6 and 9 of the O.R.V. Act read as follows : "6. Exchange of reservation between Scheduled Castes and Scheduled Tribes : The reserved vacancies for appointment shall be exchanged between the Scheduled Caste 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 for that particular community who are actually appointed. "9. "9. Manner of initial recruitment- (1) For recruitment through Exchange, in the requisition sent to the Exchange the number of vacancies reserved for Scheduled Castes and Scheduled Tribes shall be specified against the total number of vacancies. (2) For recruitment made through the Orissa Public Service Commission or any selection Board on the basis of competitive examination or interview, the advertisement shall specify the number of vacancies reserved for Scheduled Castes and Scheduled Tribes against the total number of vacancies. (3) In the case of direct recruitment otherwise than by written examination in respect of reserved vacancies in such non-technical and quasi technical posts in Class-III and Class-IV, as may be notified by the State Government, the best among the available Scheduled Caste and Scheduled Tribe candidates may be selected, provided they possess the minimum qualification required for the post or service. (4) If the required number of Scheduled Caste and Scheduled Tribe candidates are not available for filling up the reserved vacancies a fresh recruitment may be made only from candidates belong to the Scheduled Caste and Scheduled Tribe as the case may be, for filling up the remaining reserved vacancies. (5) If after holding such fresh recruitment candidates belonging to the Scheduled Caste and Scheduled Tripe are still not available or if the number of such candidates is less than the number of reserved vacancies, the vacancies which remain unfilled shall be filled up by general candidates in accordance with the procedure laid down in Section 6 and 7." As it appears 24 vacancies, were notified to OPSC for selection of suitable candidates for the post of Junior Lecturer in Education, out of which 6 vacancies were meant for S.T. candidates, 4 vacancies for S.C. candidates and one for physically handicapped candidates. But O.P.S.C. recommended 5 S.C. candidates in lieu of 5 S.T. candidates since only one S.T. candidate was selected as against 6 vacancies reserved for S.T. Such recommendation of the OPSC under Annexure-4 was not accepted by the Government and the Government requested the OPSC to make a special recruitment as required under the ORV Act. Accordingly the OPSC has also published advertisement No. 15 of 1992-93 for filling up those 5 posts reserved for S.T. candidates in the discipline of Education (Copy enclosed to M.P. 543/1993 filed by the applicant). Accordingly the OPSC has also published advertisement No. 15 of 1992-93 for filling up those 5 posts reserved for S.T. candidates in the discipline of Education (Copy enclosed to M.P. 543/1993 filed by the applicant). Since there is no specific requisition sent by the Government to the O.P.S.C. to the effect that "in case of non-availability of suitable S.T. candidates, the posts may be filled up by suitable S.C. candidates and vice versa on exchange basis as per rule. In case of non-availability of suitable P.H. candidates, the posts reserved for them may be filled up by general conditions", the O.P.S.C. had no authority to insert the said condition in the advertisement. 12. Considering the submissions made by the learned counsel for the respective parties and after going through the orders of the Tribunal in O.A. No. 397/1993 and the present O.A. 919(c)/1992, so also keeping in view the provisions of the O.R.V. Act (supra), we are of the considered view, exchange of posts between SC and ST categories can be done only after observing the procedure prescribed in Section 9 of the ORV in Posts and Services (for SC and ST) Act, 1975, i.e. special drive to fill up these reserved category posts and thereafter only principle of exchange of posts between SC and ST candidates in initial recruitment shall be applicable and as such we disagree with the finding of the first Division Bench that principle of exchange between Scheduled Caste and Scheduled Tribe can be applied before resorting to the procedure prescribed in Section 9 of the said Act i.e. undertaking a special recruitment drive before appointing personnel by exchanging vacancies between SC and ST candidates. Furthermore in the present case the OPSC had already issued advertisement to fill up those unfilled 5 vacancies reserved for Scheduled Tribe candidates. 13. In view of the above, the reference is accordingly answered. The matter be placed before the concerned Bench next week positively. M.P. MISRA, MEMBER (JUDL.) I agree. A. PATTANAYAK, MEMBER (ADMN.) I agree. Reference answered.