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2017 DIGILAW 638 (ORI)

Subhashree Jena v. State of Odisha

2017-06-29

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S. N. Prasad, J. 1. In these two writ petitions common prayer has been made and as such the same are being disposed of by this common order. 2. The orders passed by the Odisha Administrative Tribunal in O.A. No.2478(C) of 2013 dtd.29.1.2014 is under challenge whereby and where under the Tribunal has quashed the selection list dtd.17.7.2013 directing the authority to prepare a fresh select list limiting the reservation to 50% and appointment of the selected candidate be made on that basis. 3. The fact of the case is that in terms of advertisement published in the year 2012-13 for recruitment to the post of Assistant Engineer (Electrical) Class-II, Group-B service the applicants have submitted their applications, got qualified, their names have been incorporated in the select list, but before issuance of appointment letter, The Orissa Reservation of Posts and Services (for Socially and Educationally Backward Classes) Act, 2008 (herein after referred to as ‘the Act, 2008) has been challenged by some of the candidates before the Tribunal challenging the virus of the Act whereby and where under the extent of reservation has been exceeded to 50%, the Tribunal, vide its order dtd.12.12.2013 passed in O.A. No.1417 of 2012, has declared the Act, 2008 as ultra-virus and accordingly directed the authorities to modify the advertisement and initiate the selection process afresh. The Tribunal, in these original applications, have passed the order relying upon the order passed by it on 12.12.2013 in O.A. No.1417 of 2012 holding the select list dtd.17.7.2013 as illegal since the list has been prepared providing more than 50% reservation and accordingly directed to prepare a fresh select list, limiting the reservation to 50% and the appointment of selected candidates be made on that basis. 4. Learned Sr. 4. Learned Sr. Counsels representing the applicants/petitioners herein have vehemently argued that the order passed by the Tribunal in the original application is illegal for the reason that at the time when the advertisement was issued, the Act, 2008 having been notified on 7.2.2009 was in vogue, as such the entire selection process since been initiated on the basis of the prevalent rule, even if it has been quashed by a court of law, there cannot be any change in the situation on the basis of the principle that once the selection process starts, the rule prevalent on the date of initiation of the recruitment process will be followed till the recruitment process is concluded. According to them, here in the instant case, the selection process has been started on the day when the advertisement was issued, i.e. on 2.8.2012 and thereafter the names of the petitioners have been incorporated in the merit list before the judgment having been pronounced by the Odisha Administrative Tribunal in O.A. No.1417 of 2012 which was pronounced on 12.12.2013, since their names have been incorporated in the select list prior to the order having been passed by the Tribunal, hence not giving them appointment is totally unjustified decision of the Tribunal and on this ground alone the order of the Tribunal directing to prepare a fresh list is fit to be set aside. They further submit that the process has been directed to be proceeded as would be evident from the resolution dtd.24.6.2014 and the other direction of the government wherein it has been said that the process may proceed as per the advertisement and it is on the decision of the State Government the process of selection has proceeded but when the order has been passed by the Tribunal, they have not been appointed. According to them there is no laches on their part, hence they cannot be victimized by not issuing the appointment letters. Learned Sr. counsels have further submitted that even on the date the petitioners can be appointed since there is vacancy, as would be evident from the affidavit filed on behalf of the opposite party stating therein that there are 9 vacancies waiting for the out come of these writ petitions. 5. While on the other hand, learned Advocate General, by vehemently arguing the case, has opposed the prayer made on behalf of the learned Sr. 5. While on the other hand, learned Advocate General, by vehemently arguing the case, has opposed the prayer made on behalf of the learned Sr. Counsels appearing for the petitioners. He submits that when the virus of the Act, 2008 was under challenge, which has been said to be illegal by the court of law, as such any action taken in terms of the invalid law cannot be validated. He further submits that the Tribunal has passed the order relying its own order passed in O.A. No.1417 of 2012, disposed of on 12.12.2013. 6. We have heard learned counsels for the parties and perused the documents available on record. We thought it proper to discuss background of the case before judicially scrutinizing the order passed by the Tribunal. The state of Odisha has come out with an Act in the year 2008 by virtue of notification dtd.7.2.2009 extending the limit of reservation for the members of S.E.B.C. category from 11.25% to 27%. The Act, 2008 has been challenged by the aggrieved party before the Orissa Administrative Tribunal, one of it is O.A. No.1417 of 2012. The said original application has been listed before this court along with these writ petitions and we, after having heard the parties at length and considering the judicial pronouncement of Hon’ble Apex Court in the case of Indra Sawhney etc. Vrs. Union of India and Others, etc., reported in AIR 1993 Supreme Court 477 and M. Nagaraj & Ors. Vrs. Union of India & Ors., reported in AIR 2007 SC 71 and also taking into consideration the affidavit of the State Government that no data has been collected making the exception to exceed the extent of reservation from 50%, have approved the order passed by the Tribunal wherein the decision of the Government to extend the benefit of reservation from 11.25% to 27% has been held to be illegal, since it has exceeded to 50% limit taking together the reservation of SC and ST category. 7. The whole issue involved in this case is as to whether the petitioners of these writ petitions can be given appointment on the basis of the provision which has been declared as illegal? 7. The whole issue involved in this case is as to whether the petitioners of these writ petitions can be given appointment on the basis of the provision which has been declared as illegal? It is not in dispute that the process of recruitment once started, will depend upon the prevalent rule, i.e. the rule prevalent at the time when the advertisement is issued, but simultaneously it is also settled position of law that if any Act has been declared to be ultra-virus, it will be said to be redundant from the date of its issuance. We, on the basis of this principle, are of the view that the petitioners cannot be given appointment on the basis of a law which has been declared to be ultra-virus by a court of law. However, learned Sr. Counsels representing the petitioners have relied upon the judgment rendered in the case of Ranu Hazarika and Others Vrs. State of Assam and Others, reported in (2011) 4 SCC 798 , putting reliance upon para 13 it has been submitted that the recruitment process is to be concluded on the date of advertisement, there is no dispute about this settled principle, but the fact of the case upon which reliance has been placed is totally different to that of the instant case as because in the said case the amendment has been brought about requirement of educational qualification for selection of teachers and the said amendment has been quashed by the court of law and in that pretext it has been said that the qualification which was prevalent at the time of issuance of advertisement, the recruitment process is to be concluded, but here in the instant case the fact of the case is entirely different since it is the question of encroaching upon the seats of members of other category and the principle as has already been decided by the Hon’ble Supreme Court, hence in view of the principle laid down under Article 141 of the constitution of India if any decision is taken by the State, the same is binding upon the parties being the rule of the land and since it has been struck down by the court of law, as such the process initiated in pursuance to the instant rule in the light of the advertisement in question will be said to be illegal. In the light of the facts stated above, we are of the considered view that the Tribunal has not erred in passing the order, accordingly we decline to interfere with the same. However, since the state has come out with a specific stand in the affidavit regarding the position of vacancies, as would be evident from the affidavit filed on behalf of the state at paragraph 8 & 9, we remit the matter before the State Government to take decision in accordance with Law for fulfilling the vacancies as has been referred in the affidavit within stipulated period, preferably within six weeks from the date of receipt of copy of this order. With these observations and directions both the writ petitions stand disposed of.