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2017 DIGILAW 1058 (ORI)

Dharmaraj Mohapatra v. State of Odisha

2017-09-14

SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S. N. PRASAD, J. 1. Since common issues are involved in all the writ petitions, they are being heard together and disposed of by this common judgment. The relief sought for in these writ petitions is to complete the process of selection of Sikshya Sahayaks in respect of Bargarh and Padampur education districts under B.A. B.Ed. category and issuing engagement order in favour of the petitioners. 2. The grievance of the petitioners, who belong to Unreserved as well as S.E.B.C. Category, is that the selection process has been initiated, but the authorities have encroached upon the vacancies, which ought to have been filled-up from the category to which they belong. It has been submitted that the quota of reservation is not to exceed 50%, but the authorities, in complete violation of the constitutional mandate, has exceeded the vacancies beyond 50% and thereby encroached upon the seats of one or the other category thereby the petitioners have been deprived from their engagement as Sikshya Sahayak. 3. Learned counsel for the petitioners submits that the vacancies are available and this Court, after taking into consideration the factual aspects of this case, has passed an interim order directing the opposite parties no.1 and 2 to keep four posts vacant of Sikshya Sahayak under the concerned education district. However, it has been submitted that in W.P.(C) No.14290 of 2013, no interim order is there. He further submits that since there is vacancy, as has been admitted by the State-opposite parties in the counter affidavit and as such, considering the interim order passed by this Court, they can be engaged. He also further submits that the State-opposite parties are admitting the fact that the select list is valid up-to 9.11.2013 and prior to that the writ petition has been filed as also the interim order was passed, hence they can be engaged. So far as the issue related to W.P.(C) No.14290 of 2013 is concerned, submission has been made that although there is no interim order in this case, but since the authorities are admitting the fact that the list is valid up-to 9.11.2013 and the writ petition has been filed within the subsistence period of the validity of the select list, i.e., 28.6.2013 and the vacancies are available, hence the petitioner in this case may be directed to be engaged. It is also evident from the record that the authorities are not disputing the fact that merely correspondence for enhancing the validity period of select list which also does suggest that the authorities are not disputing the factual aspect, as has been raised by the petitioners. Learned counsel for the petitioners submits that there is no fault on the part of the petitioners and it is due to the illegal decision of the authorities, which is contrary to the constitutional mandate, they have been deprived from being engaged. 4. Learned Standing Counsel appearing for the School & Mass Education Department has not objected the factual aspect as stated hereinabove, but however, he has been submitted that as on date the select list is not valid and as such, they cannot be directed to be engaged by the authorities. In this regard, he has relied upon the judgment rendered in the case of Subrat Kumar Behera v. Indian Oil Corporation Ltd. and others, reported in 2107 SCC OnLine Ori 92 wherein ratio has been laid down that merely the name having been found in the select list, confers no right upon the candidates and as such, in this case also the name of the petitioners find place in the select list, it does not mean that as a matter of right, they can be selected. 5. Heard the learned counsel for the parties and perused the documents available on record. 6. The factual aspect, which is not in dispute, is that in pursuance of an advertisement, the petitioners in all these writ petitions have participated in the process, after conclusion of the selection process, a select list has prepared on 9.11.2012, in which, the name of the petitioners find mentioned just below the last selected candidates under the respective category. The petitioners have not been selected. They approached to this Court by way of these writ petitions questioning the selection process on the ground of not following the extent of reservation as has been mandated by the constitution, which contains the provision that the extent of reservation cannot be exceeded to 50%. 7. This writ petition mainly contains the ground that since the constitution Bench of Hon’ble the Supreme Court in the case of Indra Sawhney etc. etc. v. Union of India and others, etc. 7. This writ petition mainly contains the ground that since the constitution Bench of Hon’ble the Supreme Court in the case of Indra Sawhney etc. etc. v. Union of India and others, etc. etc., reported in AIR 1993 SC 477 and catena of decisions have passed thereafter, the ratio is that the extent of reservation cannot be exceed to 50% and in view of the provision of Article 141 of the Constitution of India, the pronouncement of Hon’ble the Supreme Court will prevail, but the authorities, by giving go by to the constitutional mandate, encroached upon the quota of respective categories. 8. It has been informed to the Court that the State of Odisha has came out with the Orissa Reservation of Posts and Services (For Socially and Educationally Backward Classes) Act, 2008 (in short “the Act, 2008”) wherein the provision has been made to provide reservation to the members of the S.E.B.C. Category to the extent of 27% leading to exceeding the extent of reservation from more than 50% and in view thereof, the selection has been made. It has also been informed to the Court that the vires of the Act, 2008 has been challenged before the State Administrative Tribunal on the ground that the Act is contrary to the constitutional mandate of restricting extent of reservation up-to 50% and the Tribunal has struck down the statutory provision. It has also been informed that the order passed by the Tribunal has been affirmed by the Division Bench of this Court by order passed under its writ jurisdiction. 9. Learned Standing Counsel appearing for School & Mass Education Department submits that on the date when the selection was made, the Act, 2008 was invoked and the said selection was made. Hence, there is no illegality. This argument cannot be accepted for the reason that under the provision of Article 141 of the Constitution of India when there is constitutional mandate not to exceed the extent of reservation from 50% subject to some exception, but the State Government has come out with the provision of the Act, 2008 enhancing the benefit of the reservation to the extent of 27%, which ultimately has been struck down by the Tribunal and has also been affirmed by this Court. There is no dispute about the fact that if any selection has been made on the basis of statute and when the very statute has been struck down by the court of law, hence the selection process will become nullity in the eye of law. This Court is not going on the issue of legality and propriety of the appointment already made, since that issue is not for consideration here. But it is admitted case of the petitioners that the vacancies are available. Hence, the matter needs consideration by the Collector of the district. 10. So far as the judgment relied upon by the learned Standing Counsel appearing for the School and Mass Education Department, there is no dispute about the fact that merely the name having in the select list, does not confer any right upon a candidate for engagement, but it is equally settled that judgment is to be seen in the facts and circumstances of the case. The fact leading to the said case is regarding the claim of the petitioner for engagement merely on the ground that his name was in the panel, but here the fact is quite different, since here the petitioners have been deprived from engagement due to the wrong provisions enacted by the State, which subsequently, have been quashed by the court of law. It cannot be disputed that if the selection would have been made in accordance with the constitutional mandate, the select list would have been otherwise. In view thereof, the judgment relied on by the State-opposite parties is not applicable. 11. With the aforesaid observation, the matter is remitted back to the Collector-cum-Chief Executive Officer, Zilla Parishad, Sarba Sikhya Abiyan, Baragarh to take fresh decision in accordance with law. It is made clear that the Collector will take decision strictly in accordance with the constitutional mandate as discussed above. It is further made clear that the cases of the petitioners be considered while passing final order strictly on the principle to maintain the principle of quota. It is made clear that the Collector will take decision strictly in accordance with the constitutional mandate as discussed above. It is further made clear that the cases of the petitioners be considered while passing final order strictly on the principle to maintain the principle of quota. The Collector in course of taking decision will follow the principle of quota with respect to the petitioners who belong to S.E.B.C. Category and if it is found that the S.E.B.C. candidate has already occupied seats excess to the quota, his case is also to be considered in the light of limit of reservation as mandated, so that the illegality in selection process may not be perpetuated. With this observations and directions, these writ petitions are disposed of.