ORI5." i .11f:1[NISTR. 4lIVE TRIBc/\.

' tL
'f 'TT4CA.
uor.'hle .Iuvricc N.Pr!]sty
Chairman.
Horr'Llc Dr, S.l'I.Dash,
vlember (Admn.)
L) O.A.Nn. 2158 (C)l2U12
2) O.A.No.42SD (C)170 i 2

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
its Secretary Bhubanesw ar.
1. Nibas Chan.i. i Rouiray.
~ (~h{JJl;Jr~rji P"i "(~'~Grsjni

represented

(hi ""t;, "

.; Bidyutprava Narh
C'. Rohit Klima!' Dehur,
; Bibckananda

Pan

:', Dipak KUlI,a: pattauar.;

Q, Sandcep
Parija
l \l. Sabita I: aJ"Jena
11, Labanyaba.i
Sahoo.

: Respondents,
PPEARb J:_~-::E&.:.
For the applicant

For the State lespondents:

Mrs P lbtL
Advocate.
Mr. R.KDash

Govt, Advocate,

I ;

~.:.\ \ : ',
I.
I

',.

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For private Respondents.

Mis B.B,Mohanty
A.Das, R.N.Mishra
Advocates.

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O.A.No.4250 ( C)/2012
Ashis Kumar Jena

Applicant.
-Versus:1. Orissa Staff Selection Commission, Bhubaneswar,
Respondent
APPEARANCES:
Mr,M.K.Khuntia,
For the applicant:
Advocate.
For the Respondent:

Mr. R.K.Dash
Govt. Advocate.

Date of hearing : 14.05.2014

-: ORDE

Date of order

I.

r: . Cr..<.
.J

LL

R :-

Dr. :),N.D,.sl., i\knd.kj'

the O.As are heard analogously,

(Admn.j.-

Since both

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.9144Vf\\

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

21

d4

dated
dated

1994) read with section-J of the Odisha Reservation

if Po ts and Services
Backward

Classes

For Socially

Act,2008

as

and Educationally
ultra-vires

and

unconstitutional.

And the number or posts reserved for SC,S

& 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 unreserved 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.

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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

counsel

for

the

Mrs.P.Rath,

M.K.Khuntia,

applicants

In

the

learned
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

2158 (C)/20I2 is that an advertisement

in a.A.No.

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%

27.00 %

(iii) SEBC -

Learned counsel for the applicant further submitted that in

the instant case, the advertisement
given

reservation

provisions
struck

beyond

at Annexure-I

50% on the basis

down

unconstitutional,

or

quashed,
consequent

being

ultra

correction

has

of the

stated above and ~nless the provisions

vires
m

are
and
the

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'

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

matter

another

stood

thus,

posts. While the

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

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

is

of

the

that

applicant

pursuant

advertisement dated 15.11.2012 (Annexure-I)

to

in

the

for the post

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

Common Cadre Auditor (CCA), the applicant appeared
the preliminary
After

being

examination

examination

declared

was held on 13.11.20 II.

successful

he appeared

the

in

main

the

preliminary

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
selection

granted interim order to the effect that

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
held

i-i July

published.

dl

>

2()12,

(',)IlCCr Ice

dare

till

Learned counsel

1h iugh \\ riuen
tile

result

has

test \\ a,;
been

nOI

.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
and in violation

of the result is illegal, arbitrary

of the fundamental

rights. Thus the

applicant has filed the present O.A. with the above reliefs.
Before goi ng into the merits of the case, it be

5.
that

stated

M.P.No.609

during

pendency

of

the

above

O.As

(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
"

,
,

'~

intervener/respondent
.

to finalise the selection in pursuance

7.

to ,'the :~ertisement
,

as against

the total

advertised

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/
parties submitted that 0.A.No.2158
filed by the applicant

Opp.

(C)12012 has been

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

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

pursuance

of the

advertisement

advertised

vacancy

as per the break up of vacancies

notified

thereof,

intervener!

as against

in

respondents

the total

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
struck

beyond 50% and unless the provisions

down

or

unconstitutional,
advertisement

quashed,

being

consequent.

are

ultra

vrres

and

correction

In

the

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

since the applicant, pursuant to the advertisement

by

the

Odisha

Staff

Selection

Commission

that
issued
dated

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

had applied

and

red tor

IPPL,

1:1C

PIt::> in question

advertised and accepung the tams and conditions of the

anc

ertisernent

challenge

the

(l

-"r

SaI! <!

finalization

ot select list. he cannot

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

intervener/respondents

counsel

for

the

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
examination

on

15.1 1.20 I0 and

was published

result

of

on 28.04.2012.

preliminary
The main

examination was conducted on 22.07.2012. The applicant

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

t.

11

.'

years after the advertisement

~ \

~L..,., _,;

and hence is barred by

!

limitation as per section 21 of Administrative

Act 1985 and hence not maintainable.

;~;:.

Tribunals-i

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,
percentage

of reservation

not to exceed

20.02.2013. Since the Advertisement

so far as
50%

after

in the instant case

was published on 15.1 1.20 I0, 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

that the applicant

was a successful

candidate

-.,..

.!

-:

ubmitted
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
reservation

of India, due to more than 50%

being provided

for reserved

violation of ratio of judgment of Honble

M.Nagraj

categories

in

Apex Court in

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,

categories

but

no

appointment

to

reserved

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

ultravires

that

Act

has

been

Learned

averments

made

submitted

Go vt.
in

the

Advocate

written

by

notes

come

of necessary
out

successful

parties,

in this

O.A.

under

which

the vacancies

party.

Panchayati

party, although
Department.
nOD- joind
Hon'ble

Hence,

High

Yrs. Mangal

Court

Charan

CL T 31. Moreover,
Preliminary
conditions
same

Prakash
others

AIR

vrs. Bindo
O.A

Dandasena
since

of judgment
Shukla

Kumar

Public Interest

made

been

Staff

held

by

and others

appeared

( 1984)
in the

he has submitted

to terms

and

and cannot

challenge

the

of Hon'ble

Apex

Kumar

Court

Shukla

in
and

& other

of India

and others AIR 2008 SC 05.

Litigation

as

due to

and others Yol.56

the applicant

is the Finance

Dandasena

Vrs. Akhitesh

by limitation.

Orissa

been

as has

1996 SC 10-B and Union

is barred

Iribunal.

in Indrajeet

of Advertisement

Kumar

is not made

authority

parties

Examination,

in view

has

Department,

the O.A. is not maintainable

If necessary

by issue of any

of LF A exist,

Raj Department

who

examination,

the Finance

the requisitioning

arguments

i.e. candidates,

in preliminary

Moreover,

of

since it is hit

whose legal rights are going to be affected

orders

virtue

of

that the O.A. is not maintainable,

by non-joinder

declared

now,

and is a piece of dead legislation

13.

have

SEBC

Again the

The O.A. has been filed a a

.md cannot
election

be entertained
Cornrmssion

by the
IS

examinauot

conducting

with issue of

body and

lienee

since those

uffers from the

OJ\.

.nis-joinder of parties.

(.!

4.

not concerned

-servation raised in this O.A.

are policy matters and hence the

deficiency

I~

From the above, we note that the applicant

has not actually impleaded parties, who will be affected by

any order made on this application,
candidates

at

Preliminary

i.e. the successful

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

maintainable

and

l;mitation.

the

same

IS

'.0

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
17.

SCC ( L & S) 289)

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
judgments

of Hori'ble Apex Court in a catena of

and we find no reason to interfere with the

same. State Respondents

limiting the reservation

may issue appointment

orders

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

Since both the O.1\s are

disposed of
d ~.$ros.:J o{

""

Ps

are accordingiy disposed of

Send copies

Sd Dr.:-, .' lh-:h

''''h;nlher.

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