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2017 DIGILAW 512 (ORI)

State of Odisha v. Asish Kumar Mohapatra

2017-05-03

S.N.PRASAD, S.PANDA

body2017
JUDGMENT : S.N. Prasad, J. This writ petition is under Article 226 and 227 of the Constitution of India whereby and where under the order passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack dated 02.12.2014 passed in O.A. No. 3424 (C) of 2013 has been assailed by the State of Orissa through its functionaries as the Tribunal while allowing the Original Application has directed the opposite parties, the petitioners herein to appoint him, if he is otherwise found suitable for appointment. 2. The brief fact of the case is that the opposite party, applicant has applied for the post of Fireman Driver under SEBC category in pursuance to the advertisement published in the Oriya Daily newspaper the Samaj dated 30.12.2012 for recruitment of 319 posts of Fireman Driver in Orissa Fire Service organization. He had appeared in the test and secured 37.5 marks which even though is less than the qualifying mark to be selected as Fireman Driver under SEBC category, but not selected while the other candidate who has also an applicant under the SEBC category even though has secured 37 marks has been selected and engaged, he having no option has approached to the Tribunal for redressal of his grievance, the Tribunal has passed the order with a direction to appoint him, if he is found to be otherwise eligible. The State of Orissa and its functionaries being aggrieved with the said order is before this court by way of the instant writ petition assailing the said order on the ground that the Tribunal has erred in passing the order by directing to appoint the applicant under the unreserved category without considering the fact that he is not fit to be considered under the unreserved category candidates since he is over aged being at the age of 29 years while as per the condition of advertisement, candidature of the candidate to be considered under the unreserved category has been mentioned as per which the age should not be more than 25 years. But without appreciating this aspect of the matter, the Tribunal only on taking into consideration the marks which is higher than the other candidate belonging to SEBC category has directed the authorities to appoint him. But without appreciating this aspect of the matter, the Tribunal only on taking into consideration the marks which is higher than the other candidate belonging to SEBC category has directed the authorities to appoint him. But while doing so, the Tribunal fails to consider that other candidate who has got engagement under SEBC category has got his engagement under the unreserved category candidate being at par with the candidates belonging to unreserved category and he was found to be eligible in all respect to be considered under the unreserved category. 3. Learned counsel representing the opposite party/ applicant while opposing the submission of the learned counsel representing the petitioners, state of Orissa, has submitted that the Tribunal has not erred in passing the order, rather the Tribunal has passed the order taking into consideration the fact that the other candidate who also belongs to SEBC category and even though he has got lesser marks than him, directed the authorities to engage him under the unreserved category, as such there is no error in the said order. Hence submission has been made to dismiss the writ petition. 4. We have heard learned counsel for the parties and perused the documents available on record. The fact which is not in dispute in this case is that applications have been invited in terms of the notification dated 17.01.2012 which has been published also in the daily newspaper, inviting applications for appointment to the post of Fireman Driver. The eligibility criteria so far as age is concerned, the stipulation has been made therein that, be not less than 18 years of age and not more than 25 years of age on the 1st day of January of the year in which the advertisement was issued, provided that the upper age limit in respect of reserved categories of candidates (under rule) shall be relaxed in accordance with the provisions of the Act, Rules, Orders or instructions for the time being in force. As per the Orissa Reservation of Vacancies Act, the relaxation of the age of the reserved category candidates is to be provided for the period of 5 years. In view of the provision of relaxation of age of the Orissa Reservation of Vacancies Act, a candidate belonging to reserved category can make his application up to the age of 30 years. 5. In view of the provision of relaxation of age of the Orissa Reservation of Vacancies Act, a candidate belonging to reserved category can make his application up to the age of 30 years. 5. The petitioner as well as the opposite party no.4 before the Tribunal, both belongs to SEBC category, have made their applications for consideration of their candidature to be appointed as Fireman Driver. The respondent No. 4 before the Tribunal (who is not arrayed as a party in the writ petition) has made his application under the SEBC category and has got marks to the extent of 37. It is also not in dispute that under the unreserved category, the last selected candidate has obtained 36.5 marks. It is also not in dispute that the respondent no.4 before the Tribunal was well within the age group of 18 to 25 years since he was aged about 24 years on the date of making his application in terms of the advertisement in question, as such his candidature has been considered by the authorities under the unreserved category, in view of the settled proposition that if a reserved category candidate will get marks at par with the unreserved category candidate, his candidature would be considered under the unreserved category candidate, making room for the other members of the reserved category candidates, accordingly he has been appointed by the authorities. Reference may be made to judgment of Hon’ble Apex Court rendered in the case of Ritesh R. Sah Vs. Dr. Y.L. Yamul and Others reported in (1996) 3 SCC 253 wherein at paragraph 17 it has been held as thus:- “In view of the legal position enunciated by this Court in the aforesaid cases the conclusion is irresistible that a student who is entitled to be admitted on the basis of merit though belonging to a reserved category cannot be considered to be admitted against seats reserved for reserved category.” The Hon’ble Apex Court in the case of Post Graduate Institute of Medical Education & Research, Chandigarh and Others Vs. K.L. Narasimhan and another reported in (1997) 6 SCC 283 at paragraph-5 held as follows:- “xx xx xx It is settled law that if a Dalit or Tribe candidate gets selected for admission to a course or appointment to a post on the basis of merit as general candidate, he should not be treated as reserved candidate. K.L. Narasimhan and another reported in (1997) 6 SCC 283 at paragraph-5 held as follows:- “xx xx xx It is settled law that if a Dalit or Tribe candidate gets selected for admission to a course or appointment to a post on the basis of merit as general candidate, he should not be treated as reserved candidate. Only one who does get admission or appointment by virtue of relaxation of eligibility criteria should be treated as reserved candidate.” Further the Hon’ble Apex Court in the case of Union of India & another Vs. Satya Prakash & others reported in JT 2006 (4) SC 524 at paragraph-19 observed as follows:- “In other words, while a reserved category candidate recommended by the Commission without resorting to the relaxed standard will have the option of preference from the reserved category recommended by the Commission by resorting to relaxed standard, but while computing the quota/percentage of reservation he/she will be deemed to have been allotted seat as an open category candidate (i.e. on merit) and not as a reserved category candidate recommended by the Commission by resorting to relaxed standard.” However the judgment cited above pertains to admission in Medical College but we are taking the ratio decided there in this regard. The opposite party applicant since was 29 years of age as on the date of consideration of his candidature, his case was considered under the SEBC category, but he since has got 37.5 marks and the last selected candidate under the SEBC category was 42, hence his candidature was not considered to be selected under the SEBC category. 6. The grievance of the opposite party applicant that when both the respondent no.4 before the Tribunal and he himself had made their applications for consideration of their candidature under the SEBC category, not engaging him even though he has secured higher mark than that of the respondent no.4 before the Tribunal is a colorable exercise and hence he has approached to the Tribunal for redressal of his grievance, the Tribunal, accepting his plea, has passed the order directing the authorities to consider his candidature under the unreserved category and directed them to appoint him and if required to remove respondent no.4 before the Tribunal. 7. The State of Orissa being aggrieved with the said order is before this Court. We have examined the factual aspect vis-à-vis the legal propositions. 7. The State of Orissa being aggrieved with the said order is before this Court. We have examined the factual aspect vis-à-vis the legal propositions. It is not in dispute that a candidate belonging to unreserved category, if got marks higher than or equal to the unreserved category candidate, his candidature is to be considered under the unreserved category candidate making room for the other category candidates for their selection. The State authority, following the said proposition and on examination of the factual aspects, has considered the candidature of respondent No.4 before the Tribunal since he has got 37 marks while the cut off mark of unreserved category was 36.5 marks and was well within the eligibility conditions in all respect including the age since he was about 24 years of age on the date of making the application and thereafter he was appointed. 8. The grievance of the petitioner that since he has got 37.5 marks while the candidates who have been selected belonging to the same category has secured 37 marks, he has to be appointed, but his contention cannot be accepted and is not sustainable in the eye of law, reason being that for being appointed or for being considered, a candidate has to be eligible in all respect as per the recruitment rules or the terms and conditions of the advertisement. The admitted position is that for consideration of the candidature of a candidate of unreserved category, the particular candidate is to be in the age group of 18 to 25 years, and if his candidature is to be considered under the reserved category, 5 years relaxation is to be given for such candidates. The case of the opposite party applicant has been considered under the SEBC category, since he was at the age of about 29 years on the date of making application, but he has obtained less marks than that of the last selected candidate under SEBC category and as such he has not been found suitable in comparison to others and hence not selected and engaged. So far as the grievance that his candidature ought to have been considered under the unreserved category, but that cannot be done reason being that he was more than the maximum age of 25 years as on the date of consideration of his candidature, since he was at the age of 29 years. So far as the grievance that his candidature ought to have been considered under the unreserved category, but that cannot be done reason being that he was more than the maximum age of 25 years as on the date of consideration of his candidature, since he was at the age of 29 years. Hence the authorities rightly have not considered his candidature under the unreserved category candidates, hence not selected him and according to us the decision of authorities is in consonance with the settled proposition as has been settled in the judgments referred above. 9. Learned Tribunal without looking into this aspect of the matter has passed the order with a direction to appoint him to give him parity with other candidate belonging to the same category, but while doing so, he failed to consider that the opposite party applicant was not at all eligible to be considered under the unreserved category being age barred as per the terms and conditions of the age provided in the advertisement. In view of the above we are of the considered view that the Tribunal has lost its sight in adjudicating the issue by not taking into consideration the factual aspects as stated hereinabove and the settled legal proposition. In view thereof, we are of the considered view that the order passed by the Tribunal is not sustainable, in the result the same is set aside. The writ petition stands allowed.