DUSMANTA KUMAR BEHERA Vs. REGISTRAR, ORISSA HIGH COURT
LAWS(ORI)-2020-4-8
HIGH COURT OF ORISSA
Decided on April 29,2020

Dusmanta Kumar Behera Appellant
VERSUS
Registrar, Orissa High Court Respondents

JUDGEMENT

S. K. Sahoo, J. - (1.) The petitioner Dusmanta Kumar Behera has filed this writ application with a prayer to direct the learned District Judge, Malkangiri (opposite party no.2) to issue order of appointment in his favour against unreserved category for the post of Junior Typist.
(2.) The case of the petitioner, in short, is that the opposite party no.2 issued an advertisement on 13.09.2017 to fill up three posts of Junior Typists, one reserved for Scheduled Caste (men) category; one reserved for SEBC (men) category and another was kept as unreserved category. In pursuance of such advertisement, the petitioner applied for that post under SEBC category. He participated in the selection process and performed well and the merit list of all the successful candidates (both general and reserved categories) for those three posts according to the descending order secured was published in which the name of the petitioner was reflected at serial no.2. It is the further case of the petitioner that in the category wise merit list of successful candidates for the post of Junior Typists, two names found place in Scheduled Caste category, seven names in SEBC category and four names against unreserved category. As per such merit list in SEBC category, the name of one Bivisan Sahu found place above all the seven candidates and name of the petitioner found place at number 2. Bivisan Sahu was overage but he got relaxation by virtue of SEBC quota and occupied the post which was reserved for SEBC category. It is the case of the petitioner that even though he belonged to SEBC category but since in the merit list of all the successful candidates (both general and reserved categories), his name finds place above all the candidates belonging to unreserved category, he should have been selected against such unreserved category. It is the further case of the petitioner that that the person who secures higher marks has to be considered against unreserved category. The petitioner secured more marks and in the merit list, his name found place at serial no.2 and only because he belonged to SEBC category, he was not issued with an order of appointment, on the other hand the opposite party no.3 Abinash Mohapatra whose name found place at serial no.3 in such merit list and who belonged to unreserved category was issued with an order of appointment. According to the petitioner, he belonged to SEBC category and secured more marks but the order of appointment was issued in favour of the opposite party no.3 who was directed to appear before the Registrar of the opposite party no.2 with the original documents and to give undertaking, which is not legally correct. It is the further case of the petitioner that similar advertisement was issued by the learned District Judge, Kendrapara where three posts of Typists were advertised to be filled up and there the SEBC candidates those who have secured more marks have been selected under the unreserved category. According to the petitioner, the opposite party no.2 has illegally taken a decision to debar the petitioner from appointment even though he secured more marks only because of the fact that he belonged to SEBC category and only one post was reserved for SEBC category which was given to Bivisan Sahu. The action of the opposite parties in not selecting the petitioner against unreserved category even though he secured more marks than the opposite party no.3 is illegal and arbitrary.
(3.) While controverting the averments made in the writ petition, the opposite party no.2 in the counter affidavit has stated that the appointment order was issued in favour of Shri Bivisan Sahu (SEBC Candidate) for the post of Junior Typist basing on the basis of sub-rule (5) of Rule 7 of the Odisha District and Subordinate Courts' Non-Judicial Staff Services (Method of Recruitment and Conditions of Service) Rules, 2008 (hereafter '2008 Rules'). Similarly in accordance with the provisions of 2008 Rules, appointment order was issued in favour of the opposite party no.3 from the separate merit list for unreserved category candidate according to the descending order of total marks secured. Since only one post was vacant for SEBC Category, the petitioner was not issued with the appointment order as he had secured second position in merit list for SEBC category. It is further stated that the appointment process made by the District Judge, Kendrapara is not binding as the appointment of Group 'C' employees including Junior Typists under Malkangiri Judgeship was made in accordance with the prescribed Rules and moreover the contentions in regard to equality suffers from the vice of negative equality.;


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