ORI5." i .11f:1[NISTR. 4 lIVE TRIBc/\.' tL• 'f 'TT4CA.

uor.'hle .Iuvricc N.Pr!]styChairman.

Horr'Llc Dr, S.l'I.Dash,vlember (Admn.)

L) O.A.Nn. 2158 (C)l2U122) O.A.No.42SD (C)170 i2

O.A.No.2158j..QGOI2

Sumanta Kumar xatpathy Applicant.-\' l:rsus:-

State of (;dish" represented through Commissioner,l._~IT' ·<\el ..:-rp1("jT !),t~; ;.,\i~·~.·dD ·i·'~rti~~n1.

2 \ idisha Stan :::'dection Commission represented (hi ""t;, "

its Secretary Bhubanesw ar.1. Nibas Chan.i. i Rouiray.~ (~h{JJl;Jr~rji P"i "(~'~Grsjni.; Bidyutprava NarhC'. Rohit Klima!' Dehur,; Bibckananda Pan a:', Dipak KUlI,a: pattauar.;

Q, Sandcep Parijal \l. Sabita I: aJ"Jena11, Labanyaba.i Sahoo.

: Respondents,A PPEARb J:_~-::E&.:.For the applicant Mrs P lbtL

Advocate.

For the State lespondents: Mr. R.KDashGovt, Advocate,

I ;

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2

I.I / ~',.

.,' I For private Respondents.

.-.:--: ~, r,

Mis B.B,MohantyA.Das, R.N.Mishra

Advocates." '

I '.O.A.No.4250 ( C)/2012

Ashis Kumar Jena Applicant.-Versus:-

1. Orissa Staff Selection Commission, Bhubaneswar,Respondent

APPEARANCES:For the applicant: Mr,M.K.Khuntia,

Advocate.

For the Respondent: Mr. R.K.DashGovt. Advocate.

Date of hearing : 14.05.2014 Date of order I. r: . Cr..<. LL.J -

-: ORDE R :-

Dr. :),N.D,.sl., i\knd.kj' (Admn.j.- Since both

the O.As are heard analogously, a common order is

passed.

O.A.No.2158 (C)/2012

This O.A. has been tiled by the applicant on

16.07.2012 with the following prayers'

i) To quash Annexure-4 and the result of the

preliminary examination dated 2804.20] 2 conducted in

pursuance to Annexure-I.

And declare and quash Annexure-5 & 6 i.e,

Schedule vf Odisha Reservation of Vacancies at Posts for

Schedule Castes and Schedule Tribes Rules, 1976 and the

1rih,,1 Welfare Department order No.9144·Vf\\ dated

Bhubaneswar, the 15'h March, 1994 (O.G.E. N0.4'9, dated

21 d4 1994) read with section-J of the Odisha Reservation

if Po ts and Services For Socially and Educationally

Backward Classes Act,2008 as ultra-vires and

unconstitutional.

And the number or posts reserved for SC,S r& SEBC be quashed and the opposite parties he directed

to follow the 50% reservation policy and thus enhancing

the number of posts for unreserved category under each

category i.e. Local Fund Auditor-LFA be increased to 11,

Local Fund Auditor (GP)- AGP be increased to 9 and

':ommon Cadre Auditor-Cf.A. be increased to 26.

And further direct that after the number of

posts reserved and the number of posts available for un-

reserved posts is changed, a fresh list of candidates

qualified in preliminary examination be published taking

30 times the number of posts in each category separately

for all the three services advertised.

And further direct that the marks of all the

candidates be also declared for both preliminary, main and

/iva voce irrespective of the fact that they have qualified!

passed in the concerned examination or not.

And further direct that the answer sheet be

provided to the candidates on proper application.

4

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~)"-,, "(~ O.A.No.4250 (C)/2012

\ ~_. This a.A. has been filed by the applicant on

l/ti2012 with a prayer for a direction to the respondent

to~~ublish the result of the written examination for the post

otLFNLFA (GP)/CCA held on 22.07.2012.

2. Heard Mrs.P.Rath, M.K.Khuntia, learned

.; . ~.;; ~f <, ':_ •

counsel for the applicants In the respective

a.As and Mr. B.B.Mohnnty, Mr. R.N.Mishra (1), learned

counsel appearing for the private respondents, so also Mr.

R.K.Dash, learned Govt. Advocate.

3. The grievance of the applicant in a.A.No.

2158 (C)/20I2 is that an advertisement was published in

local newspaper "The Samaj' on 15.11.2010 (Annexure-I)

by Respondent No.2/ Orissa Staff Selection Commission

inviting applications for the posts of Local Fund Auditor

(LFA), Local Fund Auditor (G.P.) and Common Cadre

Auditor (CCA). Pursuant to the said advertisement the

applicant being a graduate appeared in the preliminary

examination on 13.11.201], result of which was published

by Respondent No.2 on 29.03.2012 vide notification dated

29.03.2012 (Annexure-2), which was not in conformity.

with the advertisement, since in the meanwhile the

Respondents have withdrew Annexure-Z by a Notification

dated 02.04.2012 (Annexure-3) on the ground that certain

mistakes and faults have been detected in preparing

Annexure-2. Learned counsel for the applicant submitted

, ' ,~:;;~:' '.. ,that the 50% reservation policy a$; lard{ down~;ts:v·.th('

Hon 'ble Supreme Court has not beep; :fob<hvea'-"a~d the

entire examination and the recruitmC:'n'I'haVe~een made ~n

violation of 50% reservation policy. As~~r,Sy~tion-4 (2)

of Odisha Reservation of Vacancies of Posts Eqr Schedule

Castes and Schedule Tribes Act 1975 read with Rule-3 of

Odisha Reservation of Vacancies of Posts For Scheduled

Castes and Schedule Tribes Rules 1976 and read with the

Tribal Welfare Department order No.91444/ TW, dated

15,03,1994 and as per Odisha Reservation of Posts and

Services for Socially and Educationally Backward Classes

Act, 2008, following percentage of reservation has been

prescribed.

(i) Scheduled Caste - 16,75%

(ii) Scheduled Tribes - 22.50%

(iii) SEBC - 27.00 %

Learned counsel for the applicant further submitted that in

the instant case, the advertisement at Annexure-I has

given reservation beyond 50% on the basis of the

provisions stated above and ~nless the provisions are

struck down or quashed, being ultra vires and

unconstitutional, consequent correction m

advertisement cannot be made. Respondent No.2 prepared

a list of persons provisionally qualified for appearing in

the main written examination. The said list was a common

list for all the three posts advertised, r.e, (Local Fund'

"'" . -' /''-, <:.\' .''.

the

6

Auditor (LFA), Local Fund Auditor (GP) and AGP and

Common Cadre Auditor (CCA). There was no separate

list' for all the three posts indicating the reserved and

unreserved categories under different posts. While the

matter stood thus, another preliminary result was

published vide notification dated 28.04.2012 (Annexure-4)

violating the 50% reservation principle as laid down by the

Hon'ble Supreme Court and now the Respondents are

going to conduct the main examination. Finding no other

alternative the applicant has filed this O.A. seeking for the

above reliefs.

4. The grievance of the applicant in

O.A.No.4250(C)/2012 is that pursuant to the

advertisement dated 15.11.2012 (Annexure-I) for the post

of Local Fund Auditor (LFAI Local Fund Auditor (G.P.)/

Common Cadre Auditor (CCA), the applicant appeared

the preliminary examination was held on 13.11.20 II.

After being declared successful in the preliminary

examination he appeared the main examination on

22.07.2012. Learned counsel for the applicant submitted

that in the meantime, some candidates had approached this

Tribunal in fixation of reservation policy. In some cases

this Tribunal granted interim order to the effect that

selection process may continue, select list may be

publ ished and appointment be made, but no appointment

order should be issued beyond 50% .so far as SC/ST and

SEBC candidates dl > (',)IlCCr Ice 1h iugh \\ riuen test \\ a,;

held i-i July 2()12, till dare tile result has nOI been

published. Learned counsel .or the applicant further

submitted that when the order of the Tribunal is clear and

specific, non-publication of the -esult on the ground of

pendency of the O.A .. is completely non-application of

mind. Though there is a fair chance of success of the

applicant in the written test, due to inaction of the

respondent the applicant is deprived of the appointment.

Since in none of the cases the selection process has been

stayed, non-publication of the result is illegal, arbitrary

and in violation of the fundamental rights. Thus the

applicant has filed the present O.A. with the above reliefs.

5. Before goi ng into the merits of the case, it be

stated that during pendency of the above O.As

M.P.No.609 (C)120 J 4 has been filed by the interveners/

Opp.parties with a prayer to direct the Office~registry to

list the matter at an early date (before vacation) instead of

listing the same on the date fixed, since the matter relates

to appointment/recruitment of LF AlCCAILF A ( G.P)-

2010 and if the matter will not be jaken up before summer

vacation, the interveners and other selected persons will be

highly prejudiced.

6. M.P.NoAII (C)/2014 has also been filed by the

interveners/ Opp.parties with a prayer to vacate/modify the

interim order by granting leave to the

8

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intervener/respondent to finalise the selection in pursuance. 7.

to ·,'the :~ertisement as against the total advertised, I

vacancy a,s per the break up of vacancies notified thereof,-or else the intervener/ respondent will be strongly

prejudiced.

Learned counsel for the intervener/ Opp.

parties submitted that 0.A.No.2158 (C)12012 has been

filed by the applicant challenging the advertisement

published in the Daily Samaj dated 15.11.2010 on the

ground that the said advertisement is in violation of the

Principles of reservation, as has been prescribed under

ORV Act and ORSPS EEBC Act 2009. Moreover, the

applicant has prayed for a declaration and to quash the

percentage of reservation prescribed under ORV Act and

ORPS SEBC Act 2008. On 08.08.2012 an interim order

has been passed by this Tribunal to the effect that so far as

the interim prayer is concerned the selection process may

continue, select list be published and appointment to be

made, but no order of appointment be issued beyond 50%

so far as SC, ST and SEBC are concerned. Learned

counsel further submitted that in the selection process the

written test and viva-voce test were held on the basis of

the result of preliminary test published on 29.03.2012,

which has been impugned in this O.A. The result of the

written test was published on the basis of the examination

held on 22.07.2012. Since the intervener/respondent

9

No.1 1was found selected in the written test, she was

allowed to appear in viva-voce test held on ,21.08.2013.

Therefore, the intervener is a selected candidate. Unless

the interim order is vacated/ modified by granting leave to

the intervener/respondent to finalise the selection in

pursuance of the advertisement as against the total

advertised vacancy as per the break up of vacancies

notified thereof, intervener! respondents shall suffer

irreparable loss.

8_ Learned counsel for the applicants submitted

that the reserved quota operating in the State of Odisha

exceeds 50% and it is thus against the law of the land and

in no circumstances the extent of reservation can exceed

50%. Since in the instant case. the advertisement has given

reservation beyond 50% and unless the provisions are

struck down or quashed, being ultra vrres and

unconstitutional, consequent. correction In the

advertisement cannot be made. Furthermore, the Opp.

parties have violated 50% reservation principle laid down

by the Hon'ble Supreme Court on the basis of provisions,

which are otherwise violati • of the constitutional

mandate.

9. Learned Govt. Advocate submitted that

since the applicant, pursuant to the advertisement issued

by the Odisha Staff Selection Commission dated

15.11.20 I0 for filling up the posts of LF A and LF A. (GP)

had applied and IPPL, red tor 1:1C PIt::> in question

advertised and accepung the tams and conditions of the

ertisernent anc (l -"r finalization ot select list. he cannot

challenge the SaI! <! t urthermore , once candidate

appeared in the exarnir anon accepting the conditions ot

the advertisement. without protest, he cannot subsequently

challenge the said advertisement or the ment list/select list

prepared on the basis of the said advertisement. So far as

the allegation of the applicant as regards reservation policy

is concerned, the same has been followed in view of

settled decision of the Hori'ble Supreme Court. Therefore,

the prayer of the applicant is misconceived and liable to be

rejected.

10. Learned counsel for the

intervener/respondents have made submissions stating that

the applicant in O.A. 0.2158 (C)//2012 has accepted the

terms and conditions when he appeared at the preliminary

examination and hence he is estopped from challenging

such terms and conditions after surrendering to such terms

and conditions as per the judgment in University of

Cochin Vrs. W.S. Kanjoonjamma and others (AIR 1997

SC 2083). He also submits that the advertisement was

published on 15.1 1.20 I0 and result of preliminary

examination was published on 28.04.2012. The main

examination was conducted on 22.07.2012. The applicant

filed this O.A. on 16.07.2012, more than one and half

11t. ~ \ \ ~L..,., _,; -.,..

.' -»: .!

years after the advertisement and hence is barred by! • I •. ;~;:.

limitation as per section 21 of Administrative Tribunals-i

Act 1985 and hence not maintainable. Moreover, the

applicant has impleaded only Panchayati Raj- Department

and Orissa Staff Selection Commission as respondents.

Although the vires of the OR V Act and SEBC Act has

been challenged, the concerned Departments of Govt. i.e.

the Law Department, SC and ST Development

Department and G.A.Department have not been impleaded

as necessary parties. Moreover, the selected candidates of

the Preliminary Examination have also not been impleaded

as parties. Hence, the O.A. is not maintainable for non-

joinder of necessary parties.

11. Learned counsel for Respondent Nos.9 and

10, through written notes of submission avers that in the

judgment of this Tribunal in O.A.No.2165(C)120 12 dated

20.02.2013 in Lokanath Routh Vrs. State of Orissa, the

Tribunal placed restriction on advertisements, so far as

percentage of reservation not to exceed 50% after

20.02.2013. Since the Advertisement in the instant case

was published on 15.1 1.20I0, the law governing the field

on the date of advertisement will govern the field of

selection. The quashing of SEBC Act by this Tribunal on

12.12.2013 can have prospective effect only.

12. Learned counsel for the applicant ubmitted

that the applicant was a successful candidate in the

I~

prelirnmary examination and he filed it before the \\ ritten

exa: unation was held. .lthough the applicant is estopped

from claiming legal ri<?,htsfor surrendering to terms and

conditions of advertisement, since the Fundamental Rights

of the applicant gets violated in terms of Articles -14 to 16

of the Constitution of India, due to more than 50%

reservation being provided for reserved categories in

violation of ratio of judgment of Honble Apex Court in

M.Nagraj case 2006 (8) SCC 212. As per ratio of

judgments of Hon'ble Apex Court as per para-28 and 29

of AIR 1986 SC 180, Para-\4 and 29 of AIR 1959 SC 149,

a petitioner cannot be thrown out on the ground of waiver

or estoppel or havir.g giv n 'J!) right by participation when

violation of Fundamental Right is involved. In the interim

order of this Tribunal dated 08.08.2012 this Tribunal has

ordered that the selection process may continue and select

list be published, but no appointment to reserved

categories be made beyond 50%. Due to quashing of

SEBC Act, no appointment by reservation can be given to

SEBC candidates. As far as the SEBC Act has been

quashed by this Tribunal in its order dated 12.12.2013, it

will have retrospective effect from the date of inception of

the Act itself to prevent settled issues being unsettled,

prospective effect is given to the same. In this case, in

view of interim order of the Tribunal dated 08.08.2012,

the issue has not yet been settled and the same has to be

~~~------------~~~-------------.

13

settled considering that SEBC Act has been declared

ultravires and is a piece of dead legislation now,

13. Learned Go vt. Advocate by virtue of

averments made in the written notes of arguments

submitted that the O.A. is not maintainable, since it is hit

by non-joinder of necessary parties, i.e. candidates, who

have come out successful in preliminary examination,

whose legal rights are going to be affected by issue of any

orders in this O.A. Moreover, the Finance Department,

under which the vacancies of LF A exist, is not made a

party. Panchayati Raj Department has been made as 3

party, although the requisitioning authority is the Finance

Department. Hence, the O.A. is not maintainable due to

nOD- joind r If necessary parties as has been held by

Hon'ble High Court in Indrajeet Dandasena and others

Yrs. Mangal Charan Dandasena and others Yol.56 ( 1984)

CL T 31. Moreover, since the applicant appeared in the

Preliminary Examination, he has submitted to terms and

conditions of Advertisement and cannot challenge the

same in view of judgment of Hon'ble Apex Court in

Prakash Kumar Shukla Vrs. Akhitesh Kumar Shukla and

others AIR 1996 SC 10-B and Union of India & other

vrs. Bindo Kumar and others AIR 2008 SC 05. Again the

O.A is barred by limitation. The O.A. has been filed a a

Public Interest Litigation .md cannot be entertained by the

Iribunal. Orissa Staff election Cornrmssion IS a

examinauot conducting body and lienee I~ not concerned

with issue of -servation raised in this O.A. since those

are policy matters and hence the OJ\. uffers from the

deficiency (.! .nis-joinder of parties.

J 4. From the above, we note that the applicant

has not actually impleaded parties, who will be affected by

any order made on this application, i.e. the successful

candidates at Preliminary Examination. Finance

Department and Law Department and as such suffers from

non-joinder of necessary parties.

15. Since this O.A. No. 2158 (C)/20! 2 filed by

the applicant suffers from deficiencies like non-joinder of

necessary parties and l;mitation. the same IS '.0·

maintainable in the eye of law and hence we are not

inclined to entertain the same.

16. Although the applicant has claimed that he

has surrendered legal rights by taking the preliminary

examination in terms of advertisement, in the O.A., he is

concerned with fundamental rights and not legal rights in

this O.A. Since the Orissa Reservation of Posts & Services

(Socially & Economically Backward Classes) Act,2008

has been declared as ultra vires under Article-I-i & 16 of

the Constitution of India in this Tribunal order dated

12. I2.20 13 in O.A No. 141712012 and this has effect from

the inception of the Act itself, prospectively being

considered only for not unsettling settled matters and as

15

far as the current case is concerned, it is yet to be settled,

the order dated 12.12.2013 is squarely applicable to this

case. We note that interim order has been \issued consistent

with r'iis and in consonance with the settled position. of. . ( -,

law as indicated by Hori'ble Apex Court ill a large number

of cases starting with Indra Sawhney case (AIR 1993

Supreme Court 477), M.Nagraj case (AIR 2007 SC 71)

and ratio of judgment of our Hon 'ble High Court of Orissa

in OlC 10599 of 1999 (State of Orissa Vrs. Kumari~Haripriya Dash). This has been reiterated by I-!on'ble

Apex Court in U.P Power Corporation Ltd. Vrs. V.RaJesh

Kumar «2012)2 SCC ( L & S) 289)

17. In view of this, we find that the interim order

dated 08.08.20 J 2 :->;1' been issued keeping in view of the

ratio of judgment of Hori'ble Apex Court in a catena of

judgments and we find no reason to interfere with the

same. State Respondents may issue appointment orders

limiting the reservation for SC,ST and SFBC to -0%

(S.C.16.25%, S.T.22.5%, SEBe 11.25%).

18. Both the O.As are accordingly disposed of

Since both the O.1\s are d ~.$ros.:Jo{ "" Ps

are accordingiy disposed of

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