Judgment:
P.K. Mohanty, J.
1. The petitioner assails the action of the opposite parties, in not giving him an appointment in the existing post of Driver reserved for the scheduled castes.
2. The short facts of the petitioner's case is that he is a scheduled caste person and has successfully undergone and completed the driving training course. It is asserted that six posts of Driver fall vacant in the establishment of opp. parties 2 and 3 and out of those six posts, two are reserved for scheduled tribe, one for scheduled caste and the other three are for general candidates. The opposite parties called for names from the local Employment Exchange and after obtaining the names, conducted the interview. The petitioner came out with flying colours in the interview, inasmuch as he was the only scheduled caste candidate, who got selected. It is further asserted that his merit position in the select list was at serial 7 of the general category, though in fact he is a scheduled caste person and ought to have been published and shown under scheduled caste category. A copy of the select list is Annexure-1. It is the further case of the petitioner that the opposite parties issued appointment letters to two scheduled tribe persons and four general category persons, even though only three posts were ear-marked for the general category candidates. It is stated that in the meantime, the services of one scheduled tribe person have been terminated and as such one post of Driver is still lying vacant under the opposite parties. The petitioner, therefore asserts that by giving appointment to four, general category candidates as against three meant for such category, he has illegally been deprived of getting the appointment, in as much as he is not being appointed even though one post meant for scheduled tribe is still lying vacant because of the termination of the appointment of one such candidates. Opposite parties 2 and 3 have filed a detailed and exhaustive counter affidavit, denying the allegations and refuting the claim of the petitioner, inter alia, on the ground that out of six posts, of Driver in the judgeship two were for scheduled tribe, one for socially and economically backward classes and three were for general/unreserved candidates in accordance with the roster point. Requisitions were made from the local Employment Exchange and on the basis of the requisition, (the list of candidates were furnished from the Employment Exchange, along with some scheduled caste candidates to compete with the general/reserved vacancies. After a preliminary selection select list of candidates separately for scheduled tribe/general candidates was drawn. A list of seven general candidates was drawn up as against three general vacancies and the petitioner was placed at serial 7 of the list of general candidates. It is stated that out of the aforesaid list, two scheduled tribe candidates were appointed, but however one candidate was found unfit to remain in service for which his services were terminated, in absence of any suitable socially and economically backward class candidates the said vacancy was filled up by general candidates from out of the list of 7 candidates maintained in the judgeship. Three vacancies of general candidates were also filled up and as such out of the seven listed in the general category, four were given regular appointment. But since the petitioner's merit position was at serial 7, he could not be appointed. It is further stated that the appointment was required to be made as per 80 point roster carrying out from roster point No. 4 to point No. 9 and the break up has also been indicated in the counter affidavit as follows :
Point No. 4 -- Scheduled Caste. Point No. 5 -- General. Point No. 6 -- S.E.B.C. Point No. 7 -- General. Point No. 8 -- S.T. (Woman) Point No. 9 -- General.
3. It has been clarified that as against roster point No. 4 meant for scheduled caste, the authorities decided to appoint a scheduled tribe candidate to clear up the backlog, since one scheduled caste candidate had already been appointed as against roster point No; 3 meant for scheduled tribe candidates. It is further stated in the counter affidavit that one post of driver has been kept vacant pursuant to the direction of this Court in O.J.C. No. 829 of 1996. However, it has been stated in paragraph 14 of the counter affidavit that one more post has been created in the meantime and keeping in view the roster point No. 10 which is meant, for scheduled caste, the petitioner was appointed on 4.11. 1996 on ad hoc basis for 89 days with a break of one day until further orders and he is continuing as such till date.
4. Having heard Sri A. S. Naidu, learned counsel for the petitioner and Sri P. K. Ray, learned Addl. Government Advocate for the opposite parties and having gone through the respective pleadings of the parties, the question that arises for consideration is as to whether, the petitioner has been deprived of the right of being appointed having been duly selected by the Selection Committee inasmuch as whether even though the post was available to be filled up by a scheduled caste candidate, the authorities have ignored such reservation and intentionally deprived the petitioner from such appointment.
5. It has been clearly explained in the counter affidavit that the appointments were to be made on 80 point roster, to be carried put from roster point No. 4 to point No. 9 and it has been further explained that roster point No. 3 was meant for a scheduled tribe candidate as against which a scheduled caste candidate was appointed and as such, the said scheduled tribe vacancy was to be carried over to roster point No. 4 and therefore, the authorities decided to fill up roster point No. 4 by a scheduled tribe candidate as against a scheduled caste. This factual position is not controverted by the petitioner. In that view of the matter, if the roster point No. 3, which was reserved for scheduled tribe candidates but was to be filled up by a scheduled caste candidate for some reason, the action of the opposite parties in carrying forward the said vacancy to roster point No. 4, reserved for scheduled caste candidate cannot be faulted inasmuch as such action cannot be held to be illegal or arbitrary. In view of this undisputed position, it is evident that there was no reservation available for a scheduled caste candidate and as such, the petitioner could not have been appointed against a reserved vacancy meant for scheduled caste. Admittedly, the petitioner's merit position was at serial 7 of the list meant for general candidates and out of the list, four persons in accordance with the merit position have been appointed and therefore, the petitioner cannot have a genuine grievance for having not been able to get an appointment.
6. It is the contention of the opposite parties 2 and 3 that in view of the creation of a new post vide- Home Department Letter-No. 575/2/1/96-46234 dated 29.8.1996 and keeping in view the roster, point No. 10, which is meant for a scheduled caste candidate, the petitioner has already been given an appointment on 4.11.1996 on ad hoc basis for 89 days and he is still continuing. It is to be reiterated that the petitioner's merit position being at serial No. 7 of the general category and four candidates having been appointed, he could not have been appointed. However, the petitioner has been appointed as against the newly created post on ad hoc basis and the post is at roster point No. 10 meant for scheduled caste. In that view of the matter, the newly created vacancy being at roster point No. 10 meant for scheduled caste: there is no legal impediment for adjustment of the petitioner as against the said vacancy on regular basis': We are therefore of the considered opinion in the facts situation of the case that, the petitioner should be regularised and adjusted on regular basis in the post presently held by him.
7. In the result, the writ application is disposed of with a direction to opposite parties 2 and 3 to regularise the services of the petitioner as against the post of driver at roster point No. 10, presently held by him on ad hoc basis, within a period of three months from the date of receipt of this order. In the facts and circumstances of the case, there shall be no order as to costs.
Susanta Chatterji, J.
8. I agree.