B.P. Das, J.
1. These three Writ Petitions arise out of a common Judgment dated 02.09.2008 passed by the Orissa Administrative Tribunal in O.A. Nos. 1046 (C), 1467 (C), 843(C) and 1630 (C) of 2008. The same were, therefore, heard together and are being disposed of by this Judgment.
2. The case of the Petitioners in W.P.(C) Nos. 3981 and 2992 of 2009 is that the Orissa Public Service Commission, (hereinafter 'OPSC') made an advertisement being No. 8 of 2006-07 dated 19.08.2006 for admission to the Orissa Civil Services Examination, 2006 for recruitment to the posts and services coming under the Orissa Civil Services (Category I and II) and the said examination was to be conducted as per the Orissa Civil Service (Combined Competitive Recruitment Examination) Rules, 1991. The said advertisement was originally for 289 posts, which was subsequently increased to 401 by corrigendum dated 06.10.2006. Thereafter the number was reduced to 380, vide notification dated 03.11.2006. Another corrigendum dated 19.02.2007 making certain variation in the reservation for ex-servicemen candidates was issued without changing the number of posts, i.e. 380.
3. As per the aforesaid advertisement, a Preliminary Examination was to be conducted for the purpose of screening of the candidates. On the basis of the marks obtained in the Preliminary Examination, the candidates were to appear in the Main Examination at the ratio of 12 times the number of vacancies to be filled up. Thus as against 380 posts to be filled up, after Preliminary Examination 4560 candidates qualified in that examination were to be called for the Main Examination and their names were to be published by the OPSC.
However, after the Preliminary Examination, the OPSC published the results of 3730 candidates to be admitted to the Main Examination instead of publishing the results of required number of 4560 candidates as against the last notified vacancy of 380 posts. The reduction in the number of candidates to be admitted to the Main Examination, as understood by the Petitioners, was due to issuance of the Resolution dated 17.01.2008 by the Government of Orissa in Minorities and Backward Classes Welfare Department curtailing the number of 380 vacancies due to reservation of 15.75% thereof vacancies for Socially and Educationally Backward Classes (in short. 'SEBC) candidates. It is stated that at that point of time, the Cabinet had already taken a decision on 29.12.2007 to introduce a bill in order to protect the reservation of SEBC to the extent of 27% for subsequent inclusion in the Ninth Schedule to the Constitution.
4. The aforesaid Resolution of the State Govt. dated 17.01.2008 was challenged before the Orissa Administrative Tribunal as by reserving 15.75% vacancies for SEBC, the total number of reserved vacancies exceeded 50% of the vacancies. The Tribunal by an interim Order Dated 15.05.2008 directed the OPSC to publish 15.75% of the results in favour of unreserved categories and directed to defer the Main Examination at least for three months so that all the eligible candidates could appear in the Main Examination. The OPSC challenged the said Order Dated 15.05.2008 of the Tribunal before this Court in W.P.(C) No. 7608 of 2008 and this Court on 23.05.2008 passed the following orders:
There shall be stay, of operation of the impugned orders under Annexure-1 to both the Writ Petitions subject to the following condition:
(1) The examination as proposed to be held by the Petitioner on 27.05.2008 shall be held, but subsequent to the holding of the examination, no further steps shall be taken for declaring the result.
It is made clear that it has been accepted by the Learned Counsel for all the parties that in the event the Tribunal ultimately holds the examination conducted to be illegal or the assigned Bench after reopening of the Court modifies this order in any form, the said order shall be subject to such modification or final order passed by the Tribunal. It is further made clear that in the event, the Tribunal finally decided the case in favour of the Petitioners before it and holds that the examination conducted is illegal and not in accordance with the Judgment on the Apex Court, the candidates, who will be appearing in the examination on 27.5.2008, shall have to appear afresh if a fresh examination is held. This order shall be notified in the notice board of the Orissa Public Service Commission and in each centre, where the examination is to be held for the knowledge of the examinees.
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5. The aforesaid Order Dated 23.05.2008 of this Court was challenged before the Apex Court, but the Apex Court declined to interfere with the same, as stated. The said Order Dated 23.05.2008 was passed by this Court while the Tribunal had deferred/stayed the Main Examination. Thereafter the Writ Petition was disposed of on 24.06.2008 allowing the interim Order Dated 23.05.2008 passed by this Court to continue with a direction to the Tribunal to dispose of the Original Applications by the end of August, 2008. Thereafter the Tribunal by the impugned Order Dated 02.09.2008 quashed the entire Resolution dated 17.01.2008 wherein decision had been taken to increase the percentage of reservation for SEBC to 27%, which resulted in bringing the number of candidates to its original position, as it stood before the Resolution was passed, i.e. 401. But in the said order the Tribunal directed the OPSC to conduct another examination for the residue candidates, which meant those who were deprived of appearing in the Main Examination due to increase of percentage of reservation and consequential decrease in number of vacancies from 401 to 380. The relevant portions of the order of the Tribunal are extracted herein below:
18. Prima facio this appears to be simple arithmetic. But what complicates the matter is the set of assumptions on which this simple calculation is based. What are these assumptions? These are:
i) The Bill would be enacted by the State Legislature.
ii) The Act would then be included in the 9th Schedule of the Constitution.
iii) Once this Act is included in the 9th Schedule, it would then be protected under Article 31B of the Constitution and cannot be questioned excepting on the grounds of competence of Legislation and on the ground of altering the basic structure of the Constitution.
iv) The 15.75% SEBC vacancy is real and would be usable during the very same year from which it is secured for protective treatment.
40. We therefore allow the applications to the extent and with the directions as detailed below
(i) The impugned Resolution No. 2273/M&BCW; dated 17.1.2008 is hereby quashed. This would however not result in a void as the percentage of reservation to be applied would remain at 16.25%, for SC 22.5%, for Stand 11.25% for SEBC.
(ii) The vacancies for the purpose of recruitment under Advertisement of 2006-07 would be taken as 380,
(iii) The OPSC would declare the result of Preliminary Examination against 380 vacancies excluding the result already declared within a period of four weeks from the date of receipt of a copy of these orders.
(iv) Upon such declaration of results those who would be eligible for taking the Mains Examination would be given reasonable time for filling up their forms for sitting in the Mains Examination to be scheduled separately for them.
(v) The Mains Examination in respect of this residual number would be held within a reasonable time preferably within a -period not exceeding four months from now. If more time is needed, then leave of the Tribunal would be taken well in time with proper justification.
(vi) The OPSC would ensure that this Examination is certified as equivalent to the First Examination by an appropriate Board of academics normally associated with making the syllabus, question, setting and valuation. The composition of the Board as decided by the OPSC on the basis of this direction would be final.
(vii) The results of the residual number, who would take the second Mains Examination would be declared at the earliest and thereafter would be laterally incorporated into the tabulation sheet in respect of the candidates, who appeared the first Mains Examination. A combined select list on the basis of the written test held in this way would be prepared for further procedures to be completed. The final results will be completed and declared only after the candidates of the first examination and second examination both have completed the procedures.
(viii) Applicant in O.A. 1630 (C)/2008 is debarred from taking the Second Mains Examination if he has not already taken the First Mains Examination. If he has taken the First Mains then his result would be declared in the normal course.
6. The Govt. of Orissa in the General Administration Department and in the Minorities and Backward Classes Welfare Department has filed W.P.(C) No. 4796 of 2009 challenging the aforesaid order of the Tribunal on the allegation that the order of the Tribunal quashing the impugned Resolution dated 17.01.2008 is bad in law as the reservation did not exceed 50% and the said Resolution dated 17.01.2008 did not override any constitutional provision governing the reservation policy and there was no infirmity or defect in the impugned Resolution.
7. A counter affidavit has been filed in W.P.(C) No. 3981 of 2009 by the OPSC, but no counter affidavit has been filed by the State either through General Administration Department or through the Minorities and Backward Classes Welfare Department.
8. The stand taken by the OPSC is that it was proceeding to conduct the examination in compliance with the order of the Tribunal and it has completed all the formalities/procedures required in conducting the OCS (Main) Examination.
9. In W.P.(C) No. 3981 of 2009, we passed an interim order, after hearing Counsel for the parties on 26.03.2009, directing the OPSC to defer the second Main Examination scheduled to be held on 27.03.2009 for the residue candidates until further orders and the matter was directed to be listed on 27th April, 2009 for final disposal along with other connected Writ Petitions and that counter affidavit, if any, by the respective parties would be filed by 15th April, 2009.
10. There are intervention applications filed by several candidates, who appeared in the Main Examination in pursuance of the Resolution and their results have not yet been declared by virtue of the interim order passed by this Court, which was allowed to continue until disposal of the Original Application by the Tribunal. The Tribunal having directed a 2nd Main Examination, the interim order of this Court continued and the results of the 1st Main Examination could not be published.
Intervenes' case in W.P(C) No. 3981 of 2009 is that they have already appeared in the Main Examination. There is no reason to stall the result of that examination and the second examination should be directed to be held keeping the results of the 1st Main Examination in sealed cover so that no harm would be caused to anyone and rather valuable time could be saved.
11. According to Mr. J. Patnaik, Learned Senior Advocate for the Petitioners, while declaring the Resolution dated 17.01.2008 to be invalid and quashing the same, at the same breath the Tribunal should not have directed holding of a 2nd Main Examination in respect of residue candidates. According to the Learned Counsel, this was against the interim order passed by this Court on 23.05.2008, which continued till the disposal of the Original Application. Secondly, according to him, it was against the spirit of the observation of this Court, that, in the event the Tribunal Would finally decide the case in favour of the Petitioners before it and would hold that the examination conducted was illegal and not in accordance with the Judgment of the Apex Court, the candidates, who would be appearing in the examination on 27.05.2008, would have to appear in the examination afresh.
The second point of argument of Mr. Patnaik is that when the Main Examination, which was held on the basis of reduced candidates whose result had not been published due to the interim orders of this Court as well as the Tribunal, if a 2nd Examination is held, as directed by the Tribunal, there may be a situation where the second examinees may secure better marks than the candidates who appeared in the 1st Main Examination because the questions papers would be different and the pattern of questions may also be different. The Petitioner is one of such candidates, who appeared in the Main Examination already held in respect of the reduced number of candidates and prays that in the event the writ applications filed by the examinee Petitioners are dismissed, he may be allowed to sit in the 2nd Main Examination again. It is further argued that it will lead to different standard of examination, when the rules provide for a common selection. According to him, the Tribunal after quashing the impugned Resolution dated 17.01.2008, should have directed for holding one Main Examination for all the candidates qualified in the Preliminary Examination for 380 vacancies in conformity with the rules which would have been according to the mandate of Articles 14, 16 and 21 of the Constitution of India.
12. The argument of the Learned Counsel for the State in W.P. (C) No. 4796 of 2009 is that the Tribunal's Judgment is bad on the ground that the Tribunal should not have passed the order quashing the Resolution dated 17.01.2008 which had been issued in conformity with Article 14(4) of the Constitution containing a special provision for socially disadvantaged classes, pursuant to which, the aforesaid reservation had been made. It is further submitted that in the meantime the Legislature has enacted the 'Orissa Act 6 of 2009', but the revised reservation quota has not been included in the Ninth Schedule to the Constitution. The provisions made in the Resolution dated 17.01.2008 have been incorporated in the said Act. The Act was published in the Orissa Gazette dated the 7th February, 2009.
Learned Counsel for the State drew our attention to Orissa Act 6 of 2009, which has been annexed to the Writ Petition as Annexure-2, wherein it has been indicated that after careful consideration, the State Govt. took a policy decision that the posts and services under the State would be reserved for the Socially and Educationally Backward Classes to the extent of 27% in initial recruitment. The Act has been assented to by the Governor on the 3rd February, 2009. According to Learned Counsel for the State, in view of enactment of the aforesaid legislation, the Petitioners have no case and the Writ Petitions should be dismissed. He further submitted that the Writ Petition filed by the State should be allowed and the Judgment pertaining to quashing of the Resolution dated 17.01.2008 passed by the Tribunal should be set aside.
13. Mr. R.K. Rath, Learned Senior Advocate appearing for the interveners, submitted that the State did not file any counter affidavit before the Tribunal. The final order of the Tribunal was passed on 02.09.2008, but the State has filed this Writ Petition only on 26.06.2009 and preferred not to question the order of the Tribunal immediately. According to him, the OPSC in compliance with the Judgment of the Tribunal published the advertisement to hold a 2nd. Main Examination in respect of the balance 61 posts on 27.03.2009. Assuming that the State Govt. was aggrieved by the order of the Tribunal, it should not have come to this Court one day prior to the scheduled date of examination, i.e. on 26.03.2009. The State Govt. allowed the Judgment of the Tribunal to be implemented and never questioned the same for ail these days. It is stated that delay of six months in this case is fatal and the Writ Petition filed by the State is liable to be dismissed on that ground alone.
14. The sum and substance of the argument of Learned Counsel for the Petitioners in W.P. (C) Nos. 3981 and 2992 of 2009 is to quash the entire order of the Tribunal on the ground that the Tribunal should not have passed an order on one hand declaring the Resolution to be bad and on the other directing a 2nd Examination to be held. In W.P.(C) No. 4796 of 2009, prayer has been made by the State to quash the entire order of the Tribunal because the Tribunal should not have declared the Resolution dated 17.1.2008 illegal nor could direct holding a 2nd Main Examination for second time.
15. In this background, let us first examine the case of the State. As stated earlier, the State of Orissa in Minorities and Backward Classes Welfare Department has not filed any counter affidavit in the Original Application before the Tribunal. This Writ Petition was filed as rightly indicated about six months after the Judgment of the Tribunal was passed and it was filed on 26.03.2009 on which date the Writ Petitions of other Petitioners were placed before the Court for consideration in terms of the prayer of the Petitioners.
The ground taken by the State is that in view of enactment of the aforesaid Act, the Writ Petition of the Petitioners should be allowed. We are at a loath to accept such a submission because the Act has not commenced as yet.
16. The next common question that arises in all the Writ Petitions is whether the Tribunal is correct in passing the aforesaid order or the same suffers from any impunity or any infirmity. It is worthwhile to mention here that in W.P.(C) Nos. 3981 of 2009 and 2992 of 2009, the State has preferred not to file counter affidavits, even if chances were given to it.
In the case of M. Nagraj and Ors. v. Union of India and Ors. : AIR2007SC71 the following observation was made.
In Indra Sawhney the majority held that 50% rule should be applied to each year, otherwise it may happen that (if entire cadre strength is taken as a unit) the open channel gets choked for some years and meanwhile the general category candidates may become age barred and ineligible. The equality of opportunity under Article 16(1) is for each individual citizen while special provisions under Article 16(4) is for socially disadvantaged classes. Both should be balanced and neither should be allowed to eclipse to other.
We may also refer to the case of Indra Sawhney and Ors. v. Union of India 1992 Supp. (3) SCC 217, wherein at paragraph-818, the Apex Court observed as thus:
We may reiterate that a carry forward rule need not necessarily be in the same terms as the one found in Devadasan. A given rule may say that the unfilled reserved vacancies shall not be filed by unreserved category candidates but shall be carried-forward as such for a period of three years. In such a case, a contention may be raised that reserved posts remain a separate category altogether. In our opinion, however, the result of application of carry-forward rule, in whatever manner it is operated, should not result in breach of 50% rule.
17. The Tribunal relying on the aforesaid two decisions of the Apex Court came to a finding that the Govt. could not have curtailed the number of vacancies in the manner they have done in the Resolution in anticipation of incorporating an Act of Legislature in the Ninth Schedule to the Constitution. Fact remains, the Resolution dated 17.01.2008 was challenged before the Tribunal and the Tribunal has quashed the same. The Tribunal has also found that the order passed by this Court in the case of State of Orissa v. Haripriya Dash 2007 (Supp.l) OLR 897, on which much reliance has been placed, was one of the reasons for issuance of the aforesaid Resolution as well as the enactment. The Resolution dated 08.12.1994 providing 27 % of reservation for SEBC was treated to be bad and it was held that the total percentage of reservation would not exceed 50%. If appointments under advertisement No. 8/2006-07 will have to be considered, it would be subject to the result of Haripriya Dash (supra), meaning thereby the appointments would be restricted to 50% reservation. If OPSC would recommend 27% SEBC candidates, then it would be in excess of 50% reservation. The Judgment of Haripriya Dash was confirmed by the Apex Court. Relying upon the aforesaid Judgment, the Tribunal in paragraph 36 held that if the number of candidates stipulated is reduced to 319 as per the impugned Resolution, it would definitely go against the spirit of the Judgments in the cases of Haripriya Dash, Indra Sawhney and M. Nagraj(supra). The finding of the Tribunal, in our considered opinion, is correct and there is no infirmity.
18. The legislation brought in the meantime has not been included in the 9th Schedule to the Constitution, which is an admitted case of the State. Hence, this being the settled position of law as on today, we do not find any illegality in the Judgment of the Tribunal declaring the Resolution dated 17.01.2008 to be illegal and against the spirit of the settled law. But as regards upholding the main examination for the reduced number of vacancies and directing OPSC to declare the results of the Preliminary Examination against 380 vacancies excluding the results already declared and to hold a 2nd Main Examination in respect of residue number of candidates, we are unable to agree with the decision of the Tribunal.
19. In this regard, we may quote Sub-rules (2) and (3) of Rule-4 of the Orissa Civil Services (Combined Competitive Recruitment Examination) Rules, 1991 herein below:
(2) The Commission shall on receipt of the vacancy position from the G.A. Department announce and invite application from the candidates eligible to appear in the examination.
(3) The Commission shall conduct the combined competitive Examination in the manner prescribed in Schedule-II for recruitment to the Services/ Posts mentioned in Schedule-1 by an order to be issued by the Commission on that behalf'
Rule-3 of the Orissa Administrative Service, Class-II (Recruitment) Rules, 1978 provides the Method of Recruitment. Rule-4 of said Rules provides for Recruitment by Competitive Examination. Sub-rule-(1) of Rule-4 is quoted herein below:
(1) Every Competitive Examination for direct recruitment under Clause (a) of Rule 3 shall be held at such intervals as the State Government, may, in consultation with the Commission, from time to time determine.
Schedule II to the O.C.S. (C.C.R.E) Rules, 1991 provides for the Scheme of Examination, which is as follows:
SCHEDULE II [Vide Rule 4(3)]
The Scheme of Examination.
[1. The Competitive Examination shall comprise as follows, namely
(i) Preliminary Test;
(ii) Written Test;
(iii) Personality Test or interview]
2. Candidates who will qualify in the preliminary test, shall be called by the Commission, to appear in the written test. The qualifying marks in the preliminary test shall be such as may be fixed by the Commission. The written test shall comprise of six papers each carrying 300 marks in the subjects prescribed in Schedule III. The marks obtained in the preliminary test shall not be counted for ranking; and
3. Candidates who obtain such minimum qualifying marks in the written part of the Examination may be fixed by the Commission at their discretion, shall be called for the personality test. The personality test shall carry marks [200] marks (with minimum qualifying marks).
Total marks thus obtained by the candidates in the written examination and personality test would determine their final ranking. Candidates shall be allotted to the various services keeping in view their ranks in the Examination and the preferences indicated by them for the various services.
20. A reading of the aforesaid rules leaves no room to take a different conclusion than that only one competitive examination shall be held for recruitment to the Administrative Service Class-II through OPSC. The direction of the Tribunal to have a 2nd Main Examination for residue candidates certainly is not in consonance with the rules. Considering all these aspects, this Court while disposing of W.P.(C) No. 7608 of 2008 on 25.05.2008 passed the order as indicated in the foregoing paragraph and the same order was allowed to be continued until disposal of the Original Application by the Tribunal. In view of the aforesaid order, the examinees were also aware of the fact that in the event the applicants before the Tribunal succeed, they might have to appear at the examination afresh. This being the decision, this Court cannot allow a 2nd Main Examination to be held for residue candidates. Accordingly, the order of the Tribunal to that extent is incorrect and the same is quashed.
21. Lack of interest of the State to defend the reservation Resolution dated 17.01.2008 is apparent from the fact that the Govt. in Minorities and Backward Classes Welfare Department, which had issued the Resolution, did not file any counter to defend the Resolution before the Tribunal, nor has any counter affidavit been filed by the said Department in these Writ Petitions. At a belated stage, i.e., the day on which the interim order was to-be passed, the State filed a Writ Petition. The aforesaid action of the State only resulted in putting the aspired candidates into immense difficulty being dragged to litigation, which ultimately resulted in passing of the present order in the Writ Petitions.
22. So finally the conclusions and orders of this Court are:
(i) The Reservation Resolution dated 17.01.2008 of the State Govt. in Minorities and Backward Classes Welfare Department, which was quashed by the Tribunal, is upheld.
(ii) The examination held as per the said Resolution dated 17.1.2008 was also illegal. So the results of the said examination are not required to be published.
(iii) Let there be a Main Examination afresh by the OPSC taking the vacancy to be 380 within a time frame, preferably within three months from today. In other words, the candidates, who had already appeared in the Main Examination and the residue candidates together shall be allowed to appear at one common Main Examination However, no prejudice is caused to any candidates, who had appeared earlier in the Main Examination as they were notified earlier in pursuance of the Order Dated 23.05.2008 passed in W.P. (C) No. 7608 of 2008.
23. Last, but not the least, the aforesaid directions may be inconvenient to some candidates, but question is who is responsible for the same. On 19.08.2006 the OPSC made an advertisement for holding examinations for filling up the vacancies, but on 17.01.2008 Govt. of Orissa passed a Resolution curtailing the total number of vacancy and indicating therein that the same would be enacted and to be included in the Ninth Schedule to the Constitution, knowing fully well that this was against the Judgment of the Apex Court as it exceeded 50% of the reservation and cannot stand judicial scrutiny. The State Govt. should not have come forward with the impugned Resolution at a time when the process of examination has already been started. Likewise, the O.P.S.C, which is an independent body to conduct the examination and to recommend the selected candidates to the Government, has in this case arrogated itself to the position of the State Department and tried to pursue the agenda of the State ignoring the difficulties that would be faced by the examinees, when the concerned Department of the State Government did not file any counter affidavit in support of its Resolution. In our considered opinion, this action of the State Government ultimately gave rise to these litigations culminating in the present Judgment of this Court. Admittedly, the ratio of the Judgment rendered in the case of M. Nagraj (Supra) is that the limit of reservation ceiling shall not exceed 50%. The Act 6 of 2009 has not brought any change in the ratio laid down in the said case.
24. In the result, the Writ Petition filed by the State bearing W.P.(C) No. 4796 of 2009 is dismissed and the Writ Petitions bearing W.P.(C) Nos. 3981 and 2292 of 2009 are allowed.
There shall be no order as to cost.
B.P. Ray, J.
25. I agree.