DINGAR KUMBHAR Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner in this writ application prays for a direction to the opposite parties to constitute the Selection Committee inducting one member from the Scheduled Caste/Scheduled Tribe category in terms of the decision of the National Commission for Scheduled Castes and Scheduled Tribes and also to conduct viva voce test for filling up the post of Assistant Director meant for reserved category candidates in terms of the decision of the Government in Annexure-13 and to consider the case of the petitioner for such appointment.

(2.) The case of the petitioner is that under a special recruitment drive for Scheduled Caste and Scheduled Tribe candidates, an order was issued by opposite party No.5 on 25.5.1991 for appointment to the post of Assistant Director meant to be filled up by Scheduled Caste/Scheduled Tribe candidates. The petitioner having the prescribed qualification and experience and belonging to Scheduled Caste category, applied.for appointment to the said post on 29.6.1991. On 29.6.1991 the petitioner was intimated to appear at the written test and interview scheduled to be held on 21.7.1991 in the Head Office of the opposite party Corporation. The petitioner appeared in the written test but no viva voce test was conducted. No viva voce test having been conducted for a considerable length of time, the petitioner drew notice of the same to National Commission for Scheduled Castes and Scheduled Tribes. Thereafter several correspondences were made between the Government and the National Commission and after lapse of almost eight years, a decision was taken to conduct the viva voce test on 16.7.1999 and the petitioner was intimated about the same by letter dated 2.7.1999. The petitioner thereafter appeared in the viva voce test conducted by the Board but has not been given an appointment to the post of Assistant Director. The grievance of the petitioner is that in course of the recruitment a decision had been taken to have a written test for 100 marks and viva voce test of 50 marks which is not permissible under law. According to the petitioner, under no circumstances the percentage of viva voce mark can exceed 15% of the marks assigned for written test. The specific verments of the petitioner in this regard is that in order to eliminate the petitioner, 50 marks have been kept for viva voce test. Apart from the above, it is also the case of the petitioner that as per the Guidelines issued by the Commission for Scheduled Castes and Scheduled Tribes, the Selection Committee must be constituted with one member from Scheduled Caste and Scheduled Tribe category whereas in the present case in course of the viva voce test, the Board did not have any member from either Scheduled Caste or Scheduled Tribe category. The further case of the petitioner is that the result of the viva voce test was not published and the opposite party No.5 went on filling up the posts of Assistant Director meant for reserved category by general category candidates by giving ad hoc promotions. When this matter was brought to the notice of the Government and on interference of the Government, the General Manager of the Corporation on 14.7.2002 issued an office order stating therein that the vacancy in the Corporation on direct recruitment and promotion quota will be filled up only from Scheduled Caste and Scheduled Tribe candidates to adjust the backlog of the reserved quota in different category of posts. Irrespective of the said order, the opposite party No.5 did not take any step to fill up the existing post of Assistant Director from the reserved category candidates either by giving appointment to the present petitioner or any other suitable candidate. For the reasons stated above, the petitioner again approached the Government as well as the National Commission for Scheduled Castes and Scheduled Tribes. On 16.11.2000 the National Commission issued a letter to the managing Director of the Corporation observing that OSWC has not appointed anyone from the Scheduled Caste/Scheduled Tribe category in Grade-II posts. Thereafter correspondences were made between the opposite parties and it was found that out of 13 sanctioned posts of Assistant Director, 5 are in position, 6 have been given ad hoc promotion leaving behind two clear vacancies. The State Government clarified that as against 13 posts, there should have been four number of Assistant Directors from Scheduled Caste and Scheduled Tribe community. There being a shortfall of incumbents belonging to Scheduled Caste/Scheduled Tribe category in the post of Assistant Director, there was a need to consider the selection of candidates from the Scheduled Caste/Scheduled Tribe category to comply the roster. So far as constitution of the Selection Board is concerned, the Government also directed the Chairman of the Board to set aside the selection proceeding, constitute a Committee including a representation from Scheduled Caste/Scheduled Tribe Development Department and proceed thereafter. After receipt of the above direction from the Government, the petitioner was informed by the Board by letter dated 4.2.2002 that a decision has been taken for fresh recruitment for the post of Assistant Director to fill up the reserved vacancies and his representation has been rejected. The petitioner thereafter again approached the National Commission for Scheduled Castes and Scheduled Tribes and after several correspondences, the National Commission directed for reconsideration of the matter afresh and consider the case of the petitioner for such appointment vide letter dated 1.8.2008. When the Managing Director of the Board sought for clarification, the Government on 17.11.2008 clarified that the Managing Director being the competent authority may take appropriate decision with regard to appointment of the petitioner as Assistant Director. In spite of such clarification, no step was taken to consider the case of the petitioner for such appointment and accordingly this writ application has been filed.

(3.) A counter affidavit has been filed by opposite party No.5. It is stated in the counter affidavit that though the petitioner appeared in the written and viva voce test, he could not secure 30% marks in aggregate out of the total marks of 150 and accordingly he was not given appointment. It is further stated in the counter affidavit that even though the Board made effort to follow the ORV Act and Rules, there being no Officer belonging to Scheduled Caste/Scheduled Tribe category available from the feeder grade, i.e., Senior Superintendent, the post of Assistant Director could not be filled up as per the roster. According to the Board, for appointment/ promotion to the post of Assistant Director, a Departmental Selection Committee is constituted as provided in the Staff Regulations of 1985 amended in 1989. The Committee is a multi member Committee. It is also stated in the counter affidavit that the Board is sustaining losses continuously from the year 1991 to 1994 and therefore, no steps were taken to complete the recruitment process and viva voce test was not accordingly conducted. Only in the year 1999, as per the advice of the Government Advocate, a decision was taken to conduct the viva voce test but the petitioner did not qualify. So far as inclusion of a member of Scheduled Caste/Scheduled Tribe category in the Selection Committee is concerned, it is stated in the counter affidavit that the Staff Regulations do not provide for the same and in absence of an amendment to the Staff Regulations, a Committee cannot be constituted de hors the Regulations. In paragraph-14 of the counter affidavit, it is stated that the total number of sanctioned posts of Assistant Director as on 1.12.2009 was 11 out of which one has been filed up by a general category candidate and the rest are lying vacant to be filled up from amongst the general and scheduled Caste/Scheduled Tribe candidates. In the meantime there was a ban on recruitment and therefore, a decision has been taken in the 127th meeting of the Board to move the Finance Department for grant of permission to fill up the vacant posts of Assistant Director. A decision in the said meeting was also taken to undertake fresh recruitment of Scheduled Caste and Scheduled Tribe candidates with necessary clearance from the Finance Department.