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2021 DIGILAW 307 (ORI)

AFR Ladu Kishor Patro v. State Of Odisha

2021-07-13

B.R.SARANGI

body2021
JUDGMENT B.R. Sarangi, J. - The petitioner, by means of this writ petition, seeks direction to the opposite parties for issuance of order of appointment in his favour in the post of Excise constable, pursuant to the proceeding of District Selection Committee constituted for recruitment of Excise constables of Berhampur Excise District in accordance with physical standard test and written test held on 15.11.2011 to 16.11.2011 and 11.12.2011 in Annexure-1. 2. The factual matrix of the case, in hand, is that the Government of Odisha in Excise Department, vide notification no. 2650/Estt. dated 08.06.2011, issued an advertisement, which was published in print media i.e. daily newspaper "The Samaj" on 09.09.2011 inviting applications from eligible candidates for recruitment of ten nos. of Excise constables in Berhampur Excise District under different categories, which reads as follows: "Category of Post Male Female = Total ST 1 1 = 2 SC 1 1 = 2 SEBC 2 1 = 3 UR 2 1 = 3 Total :- 6 4 = 10" The petitioner, who belonged to Socially Educationally Backward Class (SEBC) category, having requisite qualification applied for the said post. In pursuance of the above advertisement, all total 301 (three hundred one) applications were received from different categories of candidates. After scrutiny, 246 applicants were qualified for physical standard test held on 16th and 17th November 2011. The details of category-wise candidate selected for physical standard test is as follows: ST SC SEBC UR Total Man 16 Man 53 Man 106 Man 58 233 Women 1 Women 5 Women 6 Women 1 13 Total 17 Total 58 Total 112 Total 59 246 Out of the above 246 applicants, only 164 candidates (153 male and 11 female) had appeared in the physical standard test on 16th and 17th November, 2011. As against 164 candidates appeared in the physical test, only 18 candidates were qualified, including 2 women candidates, for written test for the post of Excise constable. The category-wise candidates is as follows: ST SC SEBC UR Total 1 5 including one women 8 4 including one women 18 The written test was conducted on 11.12.2011 at Chhatrapur, where all the 18 candidates appeared. The merit list of the candidates was worked out which is furnished below: Sl. No. Name Category of Candidates Unreserved Category 1 Sri Sabyasachi Mishra UR 2 Gobionda Behera S.C. 3 Pabitra Mohanty U.R. 4 Ganesh Kumar Panigrahi U.R. 5. The merit list of the candidates was worked out which is furnished below: Sl. No. Name Category of Candidates Unreserved Category 1 Sri Sabyasachi Mishra UR 2 Gobionda Behera S.C. 3 Pabitra Mohanty U.R. 4 Ganesh Kumar Panigrahi U.R. 5. Sandhya Rani Gauda U.R. (W) S.E.B.C. Category 1 Kanhu Charan Pradhan SEBC 2 Sisirkanta Nayak SEBC 3 G. Krishna Rao SEBC 4. Ladu Kishor Patra SEBC 5. Niranjan Nayak SEBC S.C. Category 1 Damburu Prasad Behera SC 2 Nakula Behera SC 3 Padmabati Sethi SC (W) S.T. Category 1 Rupendra Kumar Rout ST In view of the list prepared as mentioned above, no women candidate could qualify in SEBC category. Therefore, the post reserved for women in SEBC category was decided to be filled up from the SEBC Male candidate as per the merit list. 2.1 At the time of recruitment one candidate named Suresh Bhuyan from ST category filed W.P.(C) No. 32409 of 2011 before this Court challenging the physical tests, wherein this Court passed an interim order that the result of the interview shall be subject to the result of the writ application. On the basis of the selection of the District Selection Committee of the Excise constables held on 15.11.2011, the Excise Commissioner, Odisha, Cuttack approved the proceeding of the District Selection Committee and communicated vide his memo No. 4905 dated 24.08.2012 for appointment of the following candidates as Excise constable. Sl. No. Name of the Candidate Category 1 Sri Sabyasachi Mishra UR 2 Gobionda Behera S.C. 3 Kanhu Charan Pradhan SEBC 4 Damburu Prasad Behera SC 5 Sisirkantga Nayak SEBC 6 Sandhyarani Gouda UR (Women) 7 G. Krishna Rao SEBC (Against SEBC Women Category 8 Padmabati Sethi SC(W) As no suitable ST women candidate was available, the post from ST women category was kept vacant. Similarly, as Suresh Bhuyan had filed writ petition, the said post had also not been filled up as per the order of Excise Commissioner, Odisha, Cuttack. Accordingly, appointment orders were issued to the above 8 candidates, vide letter no. 1191 dated 04.09.2011. 2.2 Out of the above 8 candidates, only one candidate named Kanhu Charan Pradhan from SEBC category did not join as Excise constable. He neither joined nor intimated to the authority about his inability to join in the said post and, as such, one post from SEBC male category remained vacant. 1191 dated 04.09.2011. 2.2 Out of the above 8 candidates, only one candidate named Kanhu Charan Pradhan from SEBC category did not join as Excise constable. He neither joined nor intimated to the authority about his inability to join in the said post and, as such, one post from SEBC male category remained vacant. Since none had joined from SEBC male category, as Kanhu Charan Pradhan, who stood first in the merit list, did not choose to join, that post remained vacant. Thereby, the petitioner claimed that appointment letter should be given in his favour, so that he can join in the said post of SEBC category, which is lying vacant, as his name had been figured at serial no. 4 in the list of SEBC category. The same having not been acceded to, the petitioner approached the Orissa Administrative Tribunal in O.A. No. 3502(C) of 2013 and on abolition of the said tribunal, the said original application has been transferred to this Court and registered as above. 3. Mr. G.M. Rath, learned counsel for the petitioner contended that admittedly, as per the advertisement, three posts of Excise constable from the SEBC category were to be filled up, out of which two male and one female. Since no female candidate of SEBC category qualified, as per the proceeding of the District Selection Committee, the post reserved for the female candidate of the SEBC category was suggested to be filled up by male candidate of the corresponding category. Thereby, appointment letter was issued in favour of G. Krishna Rao, who stood at serial no.3 of the SEBC category, against de-reserved post of SEBC female candidate. Thereafter, one Kanhu Charan Pradhan, who stood first in the merit list of the SEBC category, did not join in spite of repeated intimation. Thereby, one post remained vacant in SEBC male category. The petitioner, being at serial no.4 in the merit list, said post which is lying vacant should be filled up by appointing him. Against non-issuance of appointment letter to the petitioner, he has filed this writ petition and, as such, it is contended that the action of the authority in denying appointment to the petitioner is arbitrary, unreasonable and contrary to the provisions of law, which violates Article-14 and 16 of the Constitution of India. 4. Per contra, Mr. M. Balabantaray, learned Addl. Against non-issuance of appointment letter to the petitioner, he has filed this writ petition and, as such, it is contended that the action of the authority in denying appointment to the petitioner is arbitrary, unreasonable and contrary to the provisions of law, which violates Article-14 and 16 of the Constitution of India. 4. Per contra, Mr. M. Balabantaray, learned Addl. Standing Counsel for the State contended that the opposite parties have no obligation to allow the petitioner to join against the vacant post of SEBC male category, which is lying due to non-joining of Kanhu Charan Pradhan, who stood first in the merit list of SEBC category. Thereby, he claims that the writ petition should be dismissed because no right is accrued in favour of the petitioner. Merely the name of the petitioner finds place in the select list, he cannot claim that he should be given appointment against the vacant post of SEBC category. 5. This Court heard Mr. G.M. Rath, learned counsel for the petitioner and Mr. M. Balabantaray, learned Addl. Standing Counsel for the State through virtual mode, and perused the record. Pleadings having been exchanged between the parties and with the consent of the learned counsels, this writ petition is being disposed of finally at the stage of admission. 6. On the basis of the factual matrix delineated above, the advertisement dated 09.09.2011 was issued for filling up of 10 posts of excise constable. Out of the same, three posts were reserved for SCBC category, out of which 2 for male and 1 for female. As per the proceedings of the District Selection Committee for recruitment of excise constable for Berhampur Excise District held on 15.11.2011 to 16.11.2011 and 11.12.2011, it was suggested that since no female candidate could qualify in SCBC category, the post reserved for female to be filled up by the male candidate of the corresponding category. Accordingly, the final select list, which was published pursuant to the written test conducted on 11.12.2011, all total 18 candidates had appeared and out of them 5 candidates belonging to SCBC category were qualified. Accordingly, a panel of select list belonging to SEBC category was published. One Kanhu Charan Pradhan stood first in the merit list belonging to SCBC male category, whereas petitioner stood 4th in the merit list. Accordingly, a panel of select list belonging to SEBC category was published. One Kanhu Charan Pradhan stood first in the merit list belonging to SCBC male category, whereas petitioner stood 4th in the merit list. Kanhu Charan Pradhan did not join in spite of repeated intimation, nor submitted willingness or unwillingness to join in the post. So, appointment letter was issued in favour of Sisirkanta Nayak, whose name finds place at serial no.2 as against SCBC male candidate post. One G.C. Rao, whose name finds place at serial no.3, was issued with appointment letter against SCBC women category pursuant to proceeding of the department. Thereby, one SCBC male category post is still lying vacant. 7. The petitioner has pleaded in para 6.4 of the writ petition as follows:- "6.4. That after issuance of the said office order under Annexure-2 the applicant came to know that his name does not find place in the said office order for which the applicant made a representation to the respondent no.3 stating therein that our of 5 successful candidates the applicant stands 4th place in the merit list in S.E.B.C. category. One Sri Kanhu Charan Pradhan who has qualified in the first place but did not join the post of Excise constable as he has joined in O.S.A.P. as constable. The candidate in serial no. 2 has joined and the woman candidate at serial no.3 has also joined against reserved post of woken in SEBC category. Since the candidate at serial no.1 did not join, hence the vacancy in men category has remained as such. Therefore, the applicant requested to deploy him as Excise constable in the vacant place since he has a right to seek absorption. The true copy of the said representation is annexed hereto as ANNEXURE3." The opposite parties no.1 and 3 also filed counter affidavit, in para-4 whereof it has been pleaded as follows:- "4. That in reply to the averment in Para-6(4) of the O.A. it is humbly submitted that as per the approval order of Excise Commissioner, Odisha, Cuttack vide their letter No. 4905 dated 24.08.2012 all the 8 (eight) candidates were issued appointment letter vide this office letter no. 1191 dated 04.09.2011. That in reply to the averment in Para-6(4) of the O.A. it is humbly submitted that as per the approval order of Excise Commissioner, Odisha, Cuttack vide their letter No. 4905 dated 24.08.2012 all the 8 (eight) candidates were issued appointment letter vide this office letter no. 1191 dated 04.09.2011. But one candidate Sri Kanhu Charan Pradhan from SEBC category did not join in service and also not intimated the reason of his non joining in spite of repeated issue of letters to him thereby the vacancy has not been filled up till date. It is not a fact that Sri Pradhan has joined in OSAP as no report has been received from him so far in this office." The pleadings available on record itself clearly indicate that the post of excise constable, so far as SCBC male category is concerned, is still lying vacant and that has not been filled up till the counter affidavit was filed by the State. While entertaining the O.A., the State Administrative Tribunal, vide order dated 10.10.2013, passed an interim order to the following effect:- "As regards prayer for interim orders, appointment of S.E.B.C. candidates at Annexure-2 shall be subject to out-come of this O.A. and the select list shall not be deemed to have lapsed till disposal of this O.A." Thereby, the select list, which was prepared for filling up of the post of excise constable, so far as it relates to SCBC candidates, will not lapse and thereby there exist a vacancy, as has been admitted in the counter affidavit filed by the State. Consequentially, since petitioner's name finds place at serial no.4 in the merit list, he is entitled to be appointed as a constable in excise in Berhampur Excise District. 8. In Rakhi Ray v. High Court of Delhi, (2010) 2 SCC 637 : AIR 2010 SC 932 , the apex Court held that the process of selection begins with the issuance of advertisement and ends with the filling up of notified vacancies. 9. In A.P. Public Service Commission, Hyderabad v. B. Sarat Chandra, (1990) 2 SCC 669 , the apex Court held that the process consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment. 10. 9. In A.P. Public Service Commission, Hyderabad v. B. Sarat Chandra, (1990) 2 SCC 669 , the apex Court held that the process consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment. 10. In view of the above judgments, the process of selection having been concluded and select list having been prepared, the same has also been given effect to by issuing appointment letters in favour of the selected candidates, but, so far as SCBC category is concerned, since the candidate who stood first, namely, Kanhu Charan Pradhan did not join, one post of SCBC male category is still lying vacant as per the counter affidavit filed by the State, and the petitioner being stood at serial no.4 in the list, he should have been given appointment letter, as he is otherwise qualified and eligible to be appointed so as against number of post advertised by the authority for appointment of candidates belonging to SEBC category. 11. In Shankarsan Dash v. Union of India, (1991) 3 SCC 47 : AIR 1991 SC 1612 , the apex Court held as follows:- "It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted." 12. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted." 12. In East Coast Railway v. Mahadev Appa Rao, (2010) 7 SCC 678 : AIR 2010 SC 2794 , the apex Court held that though a candidate who has passed an examination or whose name appears in the select list does not have an indefeasible right to be appointed, yet appointment cannot be denied arbitrarily, nor can the selection test be cancelled without giving proper justification. Further, Court can give appropriate directions when a decision is found to be arbitrary. 13. It is well settled principle of law laid down by the apex Court that the empanelment of the candidate in the select list confers no right on the candidate to appointment on account of being so empanelled. At the best it is a condition of eligibility for the purpose of appointment and by itself does not amount to selection nor does it create a vested right to be appointed unless the service rules provide to the contrary. 14. There is no dispute on the principles, as set forth by the apex Court, but deviation can be made in view of the Constitution Bench judgment in S.C. Das and East Coast Railway mentioned supra and applying the said judgments to the present case, admittedly if the advertisement indicates three posts to be filled up from SCBC category, out of which two belonged to male and one belonged to female and, as such, one male and one female category has been filled up by de-reserving the same, then balance one post appearing for the SCBC male category candidate is to be filled up and pursuant to the interim order passed by the tribunal the validity of the list is deemed to be continuing, thereby, the petitioner being placed at serial no.4 in the merit list, he is entitled to be appointed as excise constable pursuant to the advertisement issued and the denial of such appointment to the petitioner, without assigning any reason thereof, is arbitrary, unreasonable and contrary to the provisions of law. 15. 15. In the above premises, this Court directs the opposite parties to issue order of appointment in favour of the petitioner as constable excise against the vacant post of SCBC male category in Berhampur Excise District as expeditiously as possible, preferably within a period of three months from the date of communication of this judgment. 16. The writ is petition is thus allowed. No order as to costs. 17. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the judgment available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No. 4798 dated 15th April, 2021.