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Judgment
Dr. S.K. Panigrahi, J.
The Petitioner through this Writ Petition has challenged the illegal advertisement issued by the Opp. Party No.4 for the post of Driver on the ground that the said advertisement is not only contrary to the reservation policy meant for different categories of post, but also contrary to the Apex Court’s judgment relating to eligibility criteria to drive light motor vehicle and heavy motor vehicle.
I. FACTUAL MATRIX OF THE CASE:
The brief fact of the case is that:
(i) The Petitioner No.1 has passed +2 Arts. The Petitioner No.2 has passed graduation and Petitioner No.3 has passed HSC. The Petitioner No.1 to 3 belongs to SEBC Category. Similarly, Petitioners No.4 and 5 have passed +2 Arts and HSC respectively. The Petitioners No.4 and 5 belongs to un-reserved category. The petitioners have also registered their name in the Employment Exchange. All the petitioners have valid driving licence to drive light motor vehicle.
(ii) It is submitted here that the advertisement has been published by the Opp. Party No.4 to fill up the posts of Driver on contractual basis in the Police Motor Transport, Odisha. The short advertisement was issued by the Selection Board, Odisha Police, Cuttack in the Daily "SAMBAD" dated 7th March 2020. In the said advertisement it is mentioned that “uploaded the advertisement from the website of Selection Board, Odisha Police, Cuttack”.
(iii) The last date of submission of application form was 28.03.2020. Furthermore, in the said advertisement it is mentioned that the date of physical test was likely to be commenced on 30.03.2020. However, due to outbreak of Corona Virus (COVID-19) the selection process has not been conducted as per the schedule dates given in the advertisement.
(iv) It is submitted here that the Selection Board, Odisha Police, Cuttack has issued the aforesaid advertisement for filling up the 231 number of posts of Driver. It is pertinent to mention here that out of 231 vacancies, 67 vacancies are reserved for un-reserved category, 27 vacancies are reserved for SC and 137 posts are reserved for ST category.
(v) Petitioner Nos.1 to 3 belong to SEBC Category. Out of 231 posts there is no reservation for SEBC Category. It is pertinent to mention here that the policy of reservation was for the social, economic and educational advancement of the people belonging to the Scheduled Castes and the Scheduled Tribes and for Socially and Educationally Backward Classes for appointments in posts and services under the State have been implemented in the State of Orissa by the Orissa Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 in case of Scheduled Castes and Scheduled Tribes and by Resolution No.25455/TW dated 10.09.1993, as modified from time to time, in case of Backward Class Citizens.
(vi) The Govt. of Odisha, in the erstwhile welfare department in Resolution No.35758-75-94-N dated 08.12.1994 had enhanced the percentage of reservation in Civil Posts and services for socially and educationally Backward 'Classes in the initial recruitment from 11.25% to 27% as there are peculiar features in the social, economic and physical infrastructure of Odisha. However, Section-3 of the Orissa Reservation of Post and Services (For Socially and Educationally Back Ward Classes) Act, 2008 prescribes that 27%(twenty-seven percent) posts and services under the State, shall be reserved in case of direct recruitment for Socially and educationally Back Ward Classes subject to exclusion of creamy layer.
(vii) The fixation of reservation of 27% (twenty-seven percent) posts for SEBC was challenged by some of the candidates before the State Administrative Tribunal. The State Administrative Tribunal quashed the fixation of 27% of reservation for SEBC and the same was upheld by this Court. However, the aforesaid matter of reservation is pending before the Apex Court. The State Govt. has issued the clarification from time to time for percentage of reservation of SEBC Category in case of direct recruitment during the pendency of writ application before the High Court as well as Apex Court. However, State Govt. has fixed SEBC Category 11.25% in case of direct recruitment to the posts and services under the states as an interim measure till finalization of special leave petition filed before the Hon'ble Supreme Court.
(viii) Out of 231 vacancies in the post of driver, approximately 26 posts are required to be reserved for SEBC Category in terms of the reservation of 11.25% as per the aforesaid resolution and the subsequent clarification of the State Govt. under Annexure-4Series but in the advertisement there is no post reserved for SEBC Category. As a result of which the Petitioner No.1 to 3 who are eligible in all respect for the post of driver are unable to apply in terms of the advertisement as there is no post reserved for SEBC Category.
(ix) The Opp. Parties have issued advertisement where in there is no reservation of SEBC Category. Apart from that only 29% of posts (67 post) have been advertised for the un-reserved category. It is well settled in law that more than 50% (percent) posts cannot be reserved out of the total advertised posts. In the instant cases around 71% (percent) posts are reserved for SC & ST Categories which is around 164 posts. More particularly, out of 231 vacancies more than 50% vacancies are reserved for SC & ST Categories of posts. As a result of which un-reserved candidates like the Petitioners will face difficulties to be selected as the number of posts have been reduced in un-reserved category and also they will be deprived of getting the post/job as the selection have been restricted in respect of the un-reserved category. Such actions of Opp. Parties are clear violation of the reservation policy and the law laid down by the Apex Court.
II. COURT’S REASONING AND ANALYSIS:
The Selection Board for recruitment of drivers in PMT, Odisha Police has published an indicative advertisement online (web advertisement) as well as in Odia and English Newspapers for filling up 231 vacancies in the rank of driver in PMT, Odisha Police on 07.03.2020. Prior to publication of advertisement the District Welfare Officer, Cuttack has been requested to furnish the category wise break up of 231 vacant posts of driver vide PMT Letter No.106/PMT- RO, dated 07.01.2020.
In response to the said letter the District Welfare Officer, Cuttack has submitted the category wise break up of 231 posts of drivers vide Letter No.556/WEL, dated 28.02.2020. According to the category wise break up submitted by the District Welfare Officer, Cuttack, the indicative advertisement was published in Odia and English Newspapers and electronics media in respect of the vacancies available. In the indicative advertisement, the applicants were directed to submit LMV or Heavy Motor Vehicle Driving License.
Moreover, the educational qualification for the post of Driver is H.S.C or equivalent and having valid Driving License. Higher educational qualification will not be given any special preference. It is mentioned in the indicative advertisement that candidates having valid L.M.V/ Heavy Motor Vehicle Driving License are eligible to apply for the post of Driver.
The last date of submission of application form was 28.03.2020 and it was mentioned in the indicative advertisement published in Odia Dailies "Samad", "Samayä", "Prameya" and English daily "The Times of India" dated 07.03.2020 that the Physical Efficiency Test is likely to be conducted w.e.f. 30.03.2020. But, due to worldwide outbreak of CORONA pandemic COVID- 19, the Physical Efficiency Test could not be conducted on 30.03.2020 to maintain social distancing.
The category wise break up for 231 posts was prepared by District Welfare Officer, Cuttack vide Letter No. 556/WEL, Dt. 28.02.2020 under Annexure-B/3. It is mentioned in the above said letter that, "the category wise break up has been calculated keeping in view of total cadre strength and men in position". The category wise break up submitted by the District Welfare Officer, Cuttack was exactly published in the indicative advertisement without any change.
Out of 231 advertised posts for recruitment of driver in Odisha Police Motor Transport, 67 posts are meant for U.R. category, 137 posts are meant for S.T. category, 27 posts are meant for S.C. category and no post for SEBC category. Since there is excess of candidates under SEBC category than the sanctioned strength, hence there would not be any recruitment under this category which would otherwise violates the ORV Act. It is pertinent to mention here that as per guideline of Apex Court of India, the reservation of posts should not exceed to 50% posts: Hence the reservations for SEBC candidates are confined to 11.25%.
Additionally, the total Cadre strength of driver in Odisha Police is 1438 and the Cadre strength of driver in SEBC category 162 and present strength 434 with excess of 272 in the category. Hence no post is lying vacant in SEBC category according to total Cadre strength. Furthermore, selection process has already been completed. It is submitted that the petitioner No.1 has not applied for the post in question in terms of the advertisement under Annexure-3 Series. So far as the petitioner Nos.2 & 3 are concerned, though they have applied for the post in question and have participated in the selection process, but they were disqualified in the midst of the selection process. The petitioner No.2 was disqualified as he did not qualify in the running and the petitioner No.3 was disqualified as he did not qualify in the written test. Similarly, the Petitioner Nos.4 & 5 though participated in the selection process, but the mark secured by them was less than the cut off mark as fixed by the Selection Board.
In view of the above, the Petitioners have been disqualified on different grounds mentioned above. They participated in the selection process and when they got disqualified they started raising the issue of reservation. The State Government seems to have confined the reservation to the prescribed percentage as per the guidelines of the Apex Court. Hence, after participating in the selection process, the Petitioners cannot raise these issues. Accordingly, this Court does not find any merit in entertaining the Writ Petition and it is completely devoid of any merit, hence, deserves to be dismissed.
With respect to the aforesaid discussion, this Court is not inclined to entertain the prayer of the Petitioners. Accordingly, this Writ Petition is dismissed.
Interim order, if any, passed earlier stands vacated.
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