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2014 DIGILAW 164 (ORI)

ARUN MISHRA v. STATE ODISHA

2014-03-10

B.N.MAHAPATRA, I.MAHANTY

body2014
ORDER 1. Heard Mr. Routray, learned counsel for the petitioner and Mr. Sahoo, learned Additional Standing Counsel for the State. In the present writ application, the petitioner has sought to challenge the order dated 03.09.2010 dismissing the O.A. No. 687 of 2008 by the learned Member (Admn.) Orissa Administrative Tribunal, Bhubaneswar. 2. Mr. Routray, learned counsel for the petitioner contends that the petitioner had appeared at the examination conducted for the post of S.I. of Police by the State of Odisha and the advertisement dated 27.08.2002 has indicated 254 vacancies in addition to 31 vacancies advertised earlier on 31.07.2002. The petitioner had appeared in the written examination, but his name has not been found place in the list of short listed candidates published on 11.06.2004 for psychological test. Therefore, he approached the Tribunal in O.A. No. 683 of 2004 which was dismissed on 02.04.2007 devoid of any credible information. 3. After obtaining all the information, the petitioner has filed subsequent O.A. No. 1321 of 2007 which was disposed of at the time of admission on 13.09.2007 with direction to the respondents to consider that O.A. as representation of the petitioner. In compliance of the said direction, the representation of the petitioner was taken up and came to be rejected on 29.05.2008 by the said authorities under Annexure-3. Once again challenging the said rejection of representation, O.A. No. 687 of 2008 came to be filed and against dismissal of the same, the present writ application has come to be filed. 4. Mr. Routray, learned counsel for the petitioner asserts that the petitioner belongs to the general unreserved category and his first contention is against accommodating of all Ex-Servicemen in the general unreserved category for whom 3% have been reserved itself in the said category. His contention is that 3% of reservation for Ex-Servicemen ought to have been made in Horizontal manner from each category of candidates. In this respect he placed reliance on the judgment of the Hon'ble Supreme Court in the case of Indra Sawhney Vs. Union of India (UOI) and Others, . His contention is that 3% of reservation for Ex-Servicemen ought to have been made in Horizontal manner from each category of candidates. In this respect he placed reliance on the judgment of the Hon'ble Supreme Court in the case of Indra Sawhney Vs. Union of India (UOI) and Others, . Apart from the aforesaid contention, learned counsel for the petitioner further asserts that the total reservation made in the present case as would be indicated in the advertisement under Annexure-1 series was much beyond 50% of the total vacancies and, therefore, opposed to the judgment of the Hon'ble Supreme Court both in the case of Indra Sawhney (supra) and in the case of M. Nagaraj and Others Vs. Union of India (UOI) and Others, . 5. Mr. Sahoo, the learned Additional Standing Counsel for the State, on the other hand, contends that while the plea of the petitioner insofar as "horizontal reservation" of 3% for Ex-Servicemen is correct, that Horizontal reservation is distinguished from vertical reservation as laid down by the Hon'ble Supreme Court in the case of Indra Sawhney(supra). In the case at hand, all the applicants under the category of Ex-Servicemen who had qualified happen to be from the "unreserved" category. Therefore, even applying the principle of horizontal reservation as laid down in the judgment of the Hon'ble Supreme Court cited hereinabove to the facts of the present case, no objection can be entertained to the fact that 3% reservation for Ex-Servicemen had to be worked out from the general unreserved category because, there was no other successful candidates from the "Ex-Servicemen" category for the purpose of appointment in any other category. In this respect, reliance was placed on Para-812 of the judgment in the case of Indra Sawhney(supra) wherein quota came to be held as follows: ...... To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary arrangements...... 6. The persons selected against this quota will be placed in the appropriate category; if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary arrangements...... 6. In view of the above ratio, learned Additional Standing Counsel for the State contends that since all the successful candidates of Ex-Servicemen category belonged to the "general unreserved" category, they have been adjusted in the said category as mandated by the Hon'ble Apex Court and, therefore, objection of the petitioner to the aforesaid appointment cannot be sustained. The aforesaid contention of the State is further supported by a resolution of the Government of Orissa in the General Administration Department Resolution No. 748-SC-2R/1-31/96-Gen. dated 10th January, 1997 and in particular, para-3 thereof which is quoted below: 3. The Government have been pleased to decide that the reservation for the ex-servicemen, physically handicapped persons and sports person need not be reflected in the Model roster. Such person, when selected as per the reservation provided for them, shall claim the vacancies reserved for the categories to which they may belong to which means that the ex-servicemen physically handicapped persons/sports person, if belonging to Scheduled Castes will claim the vacancy reserved for Scheduled Castes; belonging to Scheduled Tribe will claim the vacancy reserved for the Scheduled Tribes and so on. Thus the ex-servicemen/physically handicapped persons, sports person, who do not belong to either of the reserved categories (i.e. S.C./S.T/SEBC) would claim the unreserved vacancies. 7. Mr. Routray, learned counsel appearing for the petitioner placing reliance on the judgment of the Hon'ble Supreme Court in the case of M. Nagraj and others (supra) seeks to challenge the rejection of the petitioner's representation under Annexure-3 in which allegation regarding reservation beyond 50% came to be rejected in the following manner. (iii) The principle of 50% reservation as per pronouncement of the orders dated 19.10.2006 passed by the Apex Court in M. Nagarj & other cases not have a retrospective force. The applicant was-:a candidate for the post of S.I. of Police long before the pronouncement of the orders of the Apex Court mentioned supra. Hence his case cannot be governed by the orders of the Apex Court mentioned above. 8. The applicant was-:a candidate for the post of S.I. of Police long before the pronouncement of the orders of the Apex Court mentioned supra. Hence his case cannot be governed by the orders of the Apex Court mentioned above. 8. Learned counsel for the petitioner submits that while it is a fact that the judgment of the Hon'ble Apex Court in the case of M. Nagraj and others (supra) would not have retrospective force, yet to limit 50% of the reservation, principles had been laid down by nine Benches judgment of the Hon'ble Supreme Court in the case of Indra Sawhney (supra). 9. In view of the above, we are of the considered view that, we do not need to take any time in considering the aforesaid contentions on essentially two grounds. The first being that the petitioner was aware of the extent of reservation which was indicated in the advertisement under Annexure-1 series to the writ petition. The advertisement clearly indicated the number of vacancy of the seats for each category. The said advertisement was published on 27.08.2002 and earlier on 31.07.2002. The petitioner was not only aware of the said fact, but also applied against the said advertisement and after waiting the results thereof and only after learning of his failure in the examination has come to challenge the same on various grounds, including that the reservation exceeding 50%. Therefore, we are in agreement with the submission of the learned Additional Standing Counsel for the State to the fact that, this plea on behalf of the petitioner has to be termed as one raised by a classic "fence sitter" as determined by the Hon'ble apex Court. After having participated in the recruitment process pursuant to Annexure-1 series and having failed, such a person cannot be permitted in law to turn around and question the very terms and conditions of such advertisements in which he had applied/participated. 10. Accordingly, we find no justifiable ground to quash the order dated 03.09.2010 passed by the Tribunal in O.A. No. 687 of 2008 and we, therefore, affirm the same although for additional reasons as indicated hereinabove. With the aforesaid observations, the writ petition stands dismissed. Final Result : Dismissed