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2014 DIGILAW 69 (ORI)

Angelika Patnaik v. State of Orissa

2014-01-29

B.K.DASH, S.N.DASH

body2014
ORDER : Dr. S.N. DASH, MEMBER (ADMN.) The applicant, who is an applicant for the post of Asst. Engineer (Electrical), has filed this O.A. on 01.08.2013 with a prayer to quash the Select List prepared by the OPSC, i.e. Respondent No. 2 on 17.07.2013 (Annexure-4) and direct Respondent No. 2 to redraw the select list by including the applicant against the UR vacancy or in the alternative to direct Respondent No. 2 to restrict the select list by selecting 19 persons belonging to the reserved category candidates and the rest 19 by the UR candidates. 2. Heard Mr. J. Sengupta, learned counsel for the applicant, Mr. H.K. Panigrahi, learned Addl. Standing Counsel, Mr. S.B. Jena, learned counsel appearing for OPSC and Mr. D.R. Pattanaik, learned counsel for private Respondent Nos. 3 to 13. 3. Succinctly stated, an advertisement (Annexure-1) was issued by the Odisha Public Service Commission for recruitment of Assistant Engineer (Electrical) in Class-II (Group) of Odisha Engineering Service under Department of Energy. The vacancy position along with reservation thereof is : Category No. of posts (i) U.R. 09 (03-Women) (ii) Scheduled Caste 03 (01-Women) (iii) Scheduled Tribe 11 (04-Women) (iv) S.E.B.C. 15 (05-Women) Total- 38 (13-Women) Out of the vacancies mentioned above, one post is reserved for Ex-Service man, one post is reserved for Sports person and one post is reserved for physically Handicapped (partially deaf with suitable aid). The candidates belonging to P.H./Ex-Service men/Sports person when selected as per reservation provided for them, shall be adjusted against the categories to which they belong. In case of non-availability of eligible/ suitable Women candidate (s) belonging to the respective category, the unfilled vacancies of that category shall be filled up by eligible/suitable Male Candidate (s) of the same category. The exchange of reservation between SC & ST will not be considered. So far as educational qualification is concerned, a candidate must hold a Degree in Electrical Engineering from an Indian University or (b) be an Associated Member of the Institution of Engineers Electrical (India) or (c) hold a degree as enumerated in the Appendix-I of the advertisement. So far as the age is concerned, a candidate must be under 32 years and above 21 years of. age on the 1st. August 2011, i.e. he/she must have been born not earlier than 2nd August 1979 and not later than 1st August, 1990. So far as the age is concerned, a candidate must be under 32 years and above 21 years of. age on the 1st. August 2011, i.e. he/she must have been born not earlier than 2nd August 1979 and not later than 1st August, 1990. The upper age limit is relaxable by five years for candidates belonging to the categories of Scheduled Castes, Scheduled Tribes, Socially & Educationally Backward Classes, Women, Ex-Servicemen and by ten years for physically Handicapped candidates. Upper age limit is fully relaxed in favour of Junior Engineers, who have subsequently acquired prescribed qualification as provided under para-3 of the Advertisement by the closing date of receipt of application. Provided that, in case a candidate who comes under more than one category mentioned above, he/she will be eligible for only one age relaxation benefit, which shall be considered most beneficial to him/her. So, far as the method of selection is concerned (a) the selection of candidates for recruitment to the post shall be made on the basis of career assessment, written examination and Viva Voce Test. (b) The Commission will shortlist the candidates to be called for viva voce test to a reasonable number taking into consideration the marks secured in the written examination above the cut off point to be fixed by the Commission together with the evaluation of their academic career. 4. Learned counsel for the applicant submitted that Respondent No. 2 on receipt of the applications from the candidates adopted the short listing procedure on the basis of career evaluation. Accordingly, the applicant was issued with the intimation letter (Annexure-2) to appear the written test, which was scheduled to be held on 17.03.2013 and the applicant appeared at the written test on the scheduled date. As per performance of the candidates in the written test as well the career evolution, a list was published by the OPSC allowing the candidates to appear at the interview. Accordingly, a call letter (Annexure-3) was issued to the applicant to appear at the interview on 01.07.2013 with all testimonials in original for verification. The applicant did well in the interview with a hope that her name will be figured in the select list of successful candidates. Accordingly, a call letter (Annexure-3) was issued to the applicant to appear at the interview on 01.07.2013 with all testimonials in original for verification. The applicant did well in the interview with a hope that her name will be figured in the select list of successful candidates. But surprisingly she found that her name has not been included in the select list (Annexure-4) prepared by Respondent No. 2 and in her place the name of another woman belonging to SEBC category has been included. Learned counsel for the applicant submitted that as per the settled position of law, against an UR vacancy, a meritorious candidate can be selected irrespective of the cast, sex he/she belongs to. But out of first 06 posts, since 01 women i.e. Biswabandita Biswal was selected, another two from the UR (W) are to be selected. Without doing so, Respondent No. 2 had selected one Padmaja Giri, who belongs to SEBC (W) category against the UR (W) vacancy thereby depriving the applicant from being selected. Furthermore, the advertisement is in violation of the settled principles of law as the reservation for SEBC, SC, ST exceeds the ceiling limit of 50%. Being aggrieved the applicant has filed this O.A. with the above reliefs. 5. Learned Addl. Standing Counsel on the basis of the averments made in the counter submitted that the total cadre strength of Asst. Engineer (Electrical) is 88. As per Rule 7 of the Orissa Service of Engineer's Rules, 1941, 59 post, i.e. 67% of the total strength are to be filled up by direct recruitment though OPSC and rest 29 posts i.e. 33 % of the total strength are to be filled up by way of promotion from the rank of Junior Engineers (Electrical). 21 Asst. Engineers (Electrical) appointed by direct recruitment though OPSC are continuing. The remaining 38 posts (59-21) are required to be filled up by direct recruitment. Learned Addl. Standing Counsel, further submitted that as per clarification issued by the Welfare Department vide their letter dated 15.03.1999 (Annexure-C/1 to the counter) it has been clarified that the un-reserved vacancies are not reserved for any General, SC, ST, OBC or other specified classes of the candidate and this has to be filled up strictly on the basis of the Select List prepared by the Board of Selection. The selection list has been prepared by the OPSC taking into account all regulation in force, framed by the Govt. So, there is no irregularity or illegality in the select list. The O.A. is liable to be dismissed being devoid of merit. 6. Mr. Jena, learned counsel appearing for the Respondent No. 2/OPSC submitted that on the basis of requisition, recruitment Rules, draft Advertisement and clarification received from Govt., the Odisha Public Service Commission hap issued advertisement No. 2 of 2012/13 for recruitment to the post of Asst. Engineers (Electrical) in Class-II (Group-B) of Odisha Engineering Service under Department of Energy. In response to the said advertisement, the applicant had submitted her application in the office of the Commission and she attended the interview after being qualified in the written examination. Since as per letter dated 15.03.1999 of Welfare Department the un-reserved vacancies are not reserved for any General, SC, ST, OBC or other specified classes of candidates and this has to be filled up strictly on the basis of the Select List prepared by the selection board, the selection list has been prepared taking into account all rules and regulations in force, framed by the Govt. In comparison to other, the applicant being UR (W) has not been selected due to lower rank in the merit list. The Commission has acted legally in discharging its responsibility and no wrong has been committed in conducting the recruitment process for recruitment to the post of Asst. Engineer (Electrical). In view of the above, the OA is liable to be dismissed. 7. Learned counsel for private Respondent Nos. 3 to 13 submitted that the private Respondents have been duly selected by the OPSC vide Notice dated 17.07.2013 and are yet to get their orders of appointment. If the O.A. is allowed, the selected candidates were deprived of their bread and butter and will be highly prejudiced. 8. After hearing learned counsel for both sides, we note that as per advertisement at Annexure-1, the applicant, a Woman candidate belonging to UR category, has challenged the select list prepared by the OPSC at Annexure-4. The ground for challenge is reserving more than 50% vacancies for reserved category candidates, namely, out of 38 vacancies, 29 vacancies have been reserved for SC, ST and SEBC candidates and only nine vacancies have been reserved for UR category, out of which three are reserved for women candidates. The ground for challenge is reserving more than 50% vacancies for reserved category candidates, namely, out of 38 vacancies, 29 vacancies have been reserved for SC, ST and SEBC candidates and only nine vacancies have been reserved for UR category, out of which three are reserved for women candidates. Learned counsel for the applicant submitted that one SEBC (W) candidate namely Padmaja Giri has been selected against a UR vacancy, which should have been given to the applicant. Learned counsel for Respondent No. 2/OPSC submitted that the select list has been prepared based on the rules and regulations in force and unreserved category has not been reserved for any category and is to be filled up strictly on the basis of merit list in order of merit. The applicant has secured lower marks and there were two other women candidates, who have secured more marks than the applicant, yet they are not in the select list. As far as contention of the applicant of reserving more than 50% vacancies for reserved category candidates is concerted, we note that the applicant having submitted herself to the terms and conditions of advertisement, cannot question the same after becoming unsuccessful in the examination. But in this case, a point of law has been raised as to whether the advertisement fixing more than 50% reservation is legally valid after a nine judge constitution Bench of Hon'ble Supreme Court of India in the case of Indra Sawhaney v. Union of India, 1992 Supp. (3) SCC 217, AIR 1993 SC 477 have laid down the law that not more than 50% of vacancies can be reserved for reserved category of candidates. This automatically limits the number of candidates to be selected in SEBC category to 11.25% since reservation for SC and ST categories is 16.25% and 22.50% respectively. As per Odisha Reservation of Posts and Services (Socially and Educationally Backward Classes) Act, 2008 (hereinafter called as "SEBC Act"), which came into force on 07.02.2009 the reservation for SEBC categories has been fixed at 27% thus increasing the total reservation to 67.75%, more than 50% limit fixed by the Hon'ble Apex Court. This Act has already been struck down by order dated 12.12.2013 of this Tribunal in O.A. No. 1417/2012. In umpteen number of cases, this Tribunal issued orders to State Respondents to restrict reservation in recruitment to 50% of posts. This Act has already been struck down by order dated 12.12.2013 of this Tribunal in O.A. No. 1417/2012. In umpteen number of cases, this Tribunal issued orders to State Respondents to restrict reservation in recruitment to 50% of posts. In fact because of this, OPSC has sought clarifications from Department of Energy, Government of Odisha in this case as at Annexure-A/2 dated 20.01.2012, but based on the minutes of meeting held by Chief Secretary on 04.02.2012 (Annexure-B to counter of Respondent No. 1) on the ground that the SEBC Act has not been challenged, the recruitment process was continued. But the said Act has been challenged and has been declared ultra vires the Constitution of India. 9. In view of above the select list dated 17.07.2013 (Annexure-4) providing more than 50% reservation is quashed and the Respondent Nos. 1 and 2 are directed to prepare a fresh select list, limiting the reservation to 50% and appointments of selected candidates be made on that basis. The interim order dated 01.08.2013 of this Tribunal is vacated. The O.A. is accordingly disposed of. Since the O.A. is disposed of M.P. No. 1486/2013 is disposed of accordingly. B.K. DASH, MEMBER (JUDL.) I agree. O.A. disposed of.