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2017 DIGILAW 246 (ORI)

State of Odisha v. Lilibala Rout

2017-03-08

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S. N. PRASAD, J. 1. This writ petition under Articles 226 and 227 of the Constitution of India having been filed by the State of Odisha and its functionaries has challenged the order dated 31.8.2016 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A.No.1078(C) of 2010 whereby and where under while allowing the original application directed the respondent no.2, Principal Chief Conservator of Forest, Odisha to issue appointment order in favour of the applicant, sole opposite party, as Forest Guard against the earmarked vacancy of SEBC(W) category in terms of the advertisement under Anenxure-1 to the original application. 2. Brief facts of the case is that one advertisement was published on 28.2.2006 by the Forest Department in the daily local “The Sambad” inviting applications for the posts of Forest Guard. In the advertisement for the Athagarh Division, 9 posts of Forest Guard was advertised including two posts for SEBC(man) and one post for SEBC ( woman). The sole opposite party belongs to SEBC category took part in the selection process. The authority without publishing select list gave appointment to two candidates for the post of Forest Guard to undergo training course, few aspirants including the opposite party had approached the Tribunal by filing original application being O.A.No.1260(C) of 2007 which was disposed of vide order dated 11.5.2007 with a direction to the petitioners to publish final selection list. Pursuant to the said order, selection list was published vide order dated 7.8.2007. The opposite party was intimated with a select list vide memo no.4260 dated 10.8.2007 in which she was placed at serial no.9 as a SEBC(W) candidate. After publication of select list dated 7.8.2007 three more persons were sent for undergoing training to be appointed as Forest Guard, when the name of the opposite party did not figure to be sent for training course, she approached the Tribunal vide O.A.No.1846(C) of 2008 which was disposed of vide order dated 17.9.2008 with a direction to the petitioners-State authorities to consider the case of the opposite party and pass appropriate order within a stipulated period. The petitioners-State authorities have rejected case of the opposite party on the ground that as only 50% of the vacancies were to be filled up by the process of direct recruitment, the opposite party being stood at sl.no.9 of the select list, had not been issued appointment order. 3. The petitioners-State authorities have rejected case of the opposite party on the ground that as only 50% of the vacancies were to be filled up by the process of direct recruitment, the opposite party being stood at sl.no.9 of the select list, had not been issued appointment order. 3. Case of the opposite party is that appointment to the post of Forest Guard is to be made in pursuance of the Orissa Subordinate Forest Service (Method of Recruitment and Condition of Service of Forest Guard) Rules, 1998 (hereinafter referred to as Rule, 1998) which provides that by direct recruitment 75% of total vacancies through competent examination shall be filled up from open market. According to the opposite party, she was selected in direct recruitment by the selection board for the post of Forest Guard, 5 persons already selected, had undergone training to be appointed as Forest Guard vide order dated 20.6.2008 and 3.1.2009, but in view of the fact that the opposite party was to be selected against the vacancy which is earmarked as SEBC(W) category in terms of the advertisement, she has not been selected, hence woman category in the SEBC category has remained unrepresented. The candidate namely Smt. Ritanjali Ganthia at sl.no.3 in the merit list shown as SEBC category was appointed under Unreserved (UR) category according to her merit position. It has been submitted that law is sell settled that every category should be properly represented in the cadre and the principles of horizontal reservation to provide representative to female category in a particular category has not been taken into consideration by the authority concerned. 4. While on the other hand, case of the petitioners is that since vacancy position of Forest Guard as on 8.1.2006 was 17 in numbers, 50% vacancy of the posts i.e. 9 posts of Forest Guard for direct recruitment was published as per the Government instruction dated 21.6.2006 and accordingly 9 posts of Forest Guard were advertised and in the meantime 3 SEBC (man) and two SEBC (woman) candidates have been selected but since name of the opposite party is at sl.no.9 and the candidates up to sl.no.5 have been selected as Forest Guard, hence the opposite party could not have been selected because of paucity of vacancy. Reverting to the stand of the petitioners, the opposite party has submitted that while the rejecting case of the opposite party the Principal Chief Conservator of Forests has also rejected claim of one Madhusudan Pradhan for his appointment on contractual Forest Guard in Athagarh Forest Division but he has been appointed in terms of the order passed by the Tribunal in O.A.No.3169 of 2008 but the case of the opposite party has not yet been considered even in spite of the order having been passed by the Tribunal in her favour. 5. We have heard learned counsel for the parties and perused the documents available on record. 6. Admitted position in this case is that an advertisement has been published for appointment of Forest Guards in Athagarh Forest Division basing upon the 80 Point Model Roster in pursuance to the Rule, 1998. Rule 4 of the Rule, 1998 stipulates as follows: “Method of Recruitment- Recruitment to the posts of Forest Guard in Group-C service shall be made by the Selection Board: (i) by way of redeployment of surplus Group-D employees of State Government and State Public Sector Undertakings to the extent of 75% of the vacancies, having prescribed physical fitness for the post; and in case of non-availability of such employees by direct recruitment through competitive examination from open market. (ii) by promotion to the extent of twenty five percent from the rank of Group-D employee of the Division.” It is evident from Rule 4 of Rule 1998, 25% of total vacancies of the Forest Guards shall be filled up by way of promotion and 75% by way of direct recruitment, but the authorities have come out with an executive instruction dated 21.6.2006 making therein the provision to fill up 50% of the total vacancies of Forest Guards by way of direct recruitment and 50% by way of promotion. 7. The advertisement contains details of the vacancies for Athagarh Forest Division, total number of vacancies reflected in the advertisement is 19, containing therein one vacancy for SEBC(W) to which we are concerned in the instant writ petition. 7. The advertisement contains details of the vacancies for Athagarh Forest Division, total number of vacancies reflected in the advertisement is 19, containing therein one vacancy for SEBC(W) to which we are concerned in the instant writ petition. As per rule the total number of vacancies advertised in the advertisement will be filled up, thus 75% of vacancies advertised should have been filled up by way of direct recruitment and rest by way of promotion, but the authorities have initiated the entire selection process on the basis of the executive instruction dated 21.6.2006 which provides for filling up of the vacancies in the equal ratio of 50% by way of direct recruitment and rest 50% by way of promotion. 8. Law is well settled that if the statute contains a specific provision having been enshrined taking force of the statute, the same will be applicable over and above any executive instruction, settled proposition is that executive instruction cannot override rule, reference in this regard may be made to the judgment rendered by the Apex Court n the case of Public Service Commission, Uttaranchal v. Jaqgdish Chandra Singh Bora, reported in (2014) 8 SCC 644 . The applicant/opposite party has not been selected and the plea taken by the petitioners that since her name is at serial no.9 in the merit list and only the candidates whose names are up to serial no.5 have been selected but this contention is negated by the Tribunal and we are also in agreement with the finding for the reasons: (i) The opposite party participated in the selection process for consideration of her candidature in SEBC(W) category for which one post has been earmarked and advertised against which this writ application has been filed. One another SEBC female candidate had participated but she on her own merit has been selected and engaged under the unreserved category making room for woman category under SEBC quota. One another SEBC female candidate had participated but she on her own merit has been selected and engaged under the unreserved category making room for woman category under SEBC quota. It is settled that where a special reservation for women is provided within the social reservation which is horizontal reservation and the Hon’ble Apex Court while deciding the issue in the case of Rajesh Kumar Daria vs. Rajasthan Public Service Commission and others, reported in AIR 2007 SC 3127 and Public Service Commission, Uttaranchal v. Mamta Bisht & others, reported in AIR 2010 SC 2613 has laid down the proposition by observing therein that “Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for scheduled castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of 'Scheduled Castes-Women'. If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of scheduled caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women. Applying the said proposition the authorities have come out with the advertisement for one post of SEBC(W) quota but admitted position is that two women candidates for the SEBC category have been declared successful, one Ritanjali Ganthia and another is the opposite party. Ritanjali Ganthia having been secured marks at par with the candidate of the unreserved category, has been selected and engaged under unreserved category, and the post of SEBC(W) category has remained vacant. Ritanjali Ganthia having been secured marks at par with the candidate of the unreserved category, has been selected and engaged under unreserved category, and the post of SEBC(W) category has remained vacant. The opposite party claims that she is the right candidate to be selected and engaged against SEBC(W) category but the authorities on one pretext or the other has not selected her leading her to file series of litigations and when the Tribunal has directed to take decision in O.A.No.3109 of 2008 directing the Principal Chief Conservator of Forest, the Principal Chief Conservator of Forests vide office order No.333 dated 17.3.2010 has taken decision rejecting claim of the opposite party on the ground that the selected candidates from sl. Nos. 1 to 5 have been engaged, the opposite party having been at serial no.9, has not been selected. The Principal Conservator of Forests has also rejected grievance of one Madhusudan Pradhan vide order dated 17.3.2010 against which he approached before the Tribunal. Against the order dated 17.3.2010 the opposite party approached the Tribunal in O.A. No.1078(C) of 2010 which is subject matter of this writ petition. Principle is settled that whatever has been advertised in the advertisement the same must be in consonance with the Recruitment Rules, otherwise it will be said to be dehors the rule. In view of Rule 1998, 75% vacancies advertised will have to be filled up by way of direct recruitment but the authorities relying upon the executive instruction dated 21.6.2006 has reflected vacancies to be filled up through direct recruitment up to 50%, which according to us, is not correct. The decision rendered is contrary to the settled proposition that executive instruction cannot override the statutory provision and in that situation the authorities ought to have filled up 75% of the total vacancy through direct recruitment and if that would have been done, the opposite party must have been selected since in that situation the number of posts equal to 75% of total vacancies would have come to 12 and the opposite party being at sl.no.9, but it is due to wrong decision of the authorities, the opposite party could not have been selected. (ii) The opposite party is claiming that she be selected under woman quota in SEBC category in view of the provision of horizontal reservation on the principle that reservation of a particular class cannot be ignored. (ii) The opposite party is claiming that she be selected under woman quota in SEBC category in view of the provision of horizontal reservation on the principle that reservation of a particular class cannot be ignored. We, on the basis of the principles laid down by the Hon’ble Apex Court in the case of Rajesh Kumar Daria vs. Rajasthan Public Service Commission and others(supra), are of the considered view that the authorities have come out with specific reservation regarding one post earmarked for the SEBC(W) quota, it should have been filled up from amongst women belonging to SEBC category. In the instant case, Ritanjali Ganthia, woman candidate belonging to SEBC category had been selected and engaged on the ground of her marks against unreserved category, hence she cannot be said to be selected against the post earmarked for the SEBC(W) category and in that circumstances it can well be said that the post against SEBC(W) category has remained vacant having SEBC(W) candidate not being represented. (iii) The State has taken stand that five vacancies have been filled up in view of 50% earmarked for the direct recruitment, hence the opposite party being at serial no.9 could not have been selected but the said reason is also contrary to the facts. Mr. Madhusudan Pradhan, being aggrieved with the selection process, has also approached the Tribunal in O.A.No.3169(C) of 2008, however, his case for appointment has been rejected by the order passed by the Principal Chief Conservator of Forest, but subsequently he has been appointed, as has been stated by learned counsel for the opposite party by way of filing an affidavit stating therein that Madhusudan Pradhan has got appointment order pursuant to O.A.No.1229(C) of 2010 dated 3.5.2016, learned counsel for the State has not disputed this aspect of the matter since this Court has directed the learned Additional Government Advocate to seek instruction vide order dated 21.2.2017 and on instruction he has admitted the stand of the opposite party. Thus the contention raised that appointment has been made according to the vacancies position up to sl.no.5 is not correct. The facts remains that quota of SEBC(W) has not been filled up and reservation of SEBC(W) category remained unrepresented. Thus the contention raised that appointment has been made according to the vacancies position up to sl.no.5 is not correct. The facts remains that quota of SEBC(W) has not been filled up and reservation of SEBC(W) category remained unrepresented. Furthermore, since the entire selection process is based upon executive instruction dated 21.6.2006 restricting appointment up to the extent of 50% only, which is contrary to the statutory rule as contained in Rule 4 of the Rule 1998, is not permissible, but we are not making comment on the same since it is not the issue before us. 9. We, on close scrutiny of the order passed by the Tribunal, have found that the Tribunal after taking into consideration all these aspects of the matter has passed well reasoned order, as such according to our considered view, we decline to interfere with the order impugned. In the result, the writ petition is dismissed being devoid of merit.