SUSANTA KUMAR SETHI Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS writ application has been filed by the petitioners to quash appointment of opposite party Nos.6 to 25 to the post of Sikshya Sahayak under Annexure -13 and to direct the Collector, Puri to appoint the petitioners in the posts after quashing the order dated 28.10.2010 passed by the Collector in S.S. Misc. Case No.1 04 of 2009 under Annexure -14 whereby the claim of the petitioners for appointment was rejected.

(2.) THE petitioners are all Scheduled caste persons, who applied for the post of Sikshya Sahayak in the district of Puri as per the advertisement (Annexure -1) issued by the Director, OPEPA, Orissa, Bhubaneswar -opposite party NO.3. Undisputedly for the district of Puri the number of posts of Sikshya Sahayak under the advertisement was 1109 with the breakup of unreserved -383, SEBC -299, S.C. -179 and S.T. -248. The petitioners were eligible and applied for the post, got selected having qualified but they could not get appointment because their position in the merit list for Scheduled Castes was below 179, i.e., the number of posts advertised for their category. However, it is apparent from Annexure -4, the letter of the Collector, Puri addressed to the Joint Secretary to Government, School and Mass Education Department that out of 248 seats reserved, for S.T. candidates, only ten posts were filled up by the candidates selected under that category and 238 number of posts remained vacant for want of qualified ST candidates. Therefore, by the letter dated 13.08.2007 under Annexure -4, the Collector requested the Government to de -reserve 238 S.T. posts for giving appointment to qualified candidates from other categories. Although initially vide letter dated 01.05.2008 under Annexure -6 the Government intimated the Collector refusing for de -reservation of the S.T. posts, however, by subsequent letter dated 03.07.2008 under Annexure -7 the request for de -reservation of 238 vacant S.T. posts was allowed. The said letter indicates that the Government decision allowing de -reservation was made in consultation with Department of S.T. and S.C. Development. It was stipulated that the appointment in de -reserved posts shall be purely on temporary basis with condition that as and when candidates of reserved category became available they may be inducted in the post. This Government decision is further reiterated in Government order dated 14.11.2008 under Annexure -11. On the basis of the Government order under Annexure -7, opposite party Nos.6 to 25, who are admittedly all general and SEBC candidates were appointed against the de -reserved vacancies.

(3.) OPPOSITE party Nos. A and 5 have filed an affidavit stating inter alia that for want of qualified candidates, 235 numbers of posts meant for Scheduled Tribe candidates could not be filled up and, therefore, the State Government issued instruction to appoint the candidates belonging to other categories out of the select list on temporary basis and as such the authorities issued appointment letters in favour of the candidates empanelled in the merit list. It is further stated that the contention raised by the petitioners with regard to applicability of Section 6 of the O.R.V. Act has no force in view of the proviso to the said section. It is stated that appointment of Sikshya Sahayak is contractual, under a scheme with the condition that on completion of few years of service as Sikshya Sahayak the incumbent will be regularized against the post of Primary School Teacher, which carries a scale of pay and is a Class -III (Group -C) Post under the State Government. Therefore, Sikshya Sahayaks are Group (C) employees and because of the proviso to Section 6 of the O.R.V. Act, which is in the nature of an explanation, the main provision of Section 6 with regard to exchange of posts between SCs and STs has no application. It is further stated that the Government has published a resolution dated 10.01.2011 fixing different terms and conditions/guidelines for filling up the existing vacancies of Sikshya Sahayak and, therefore, the previous guidelines by virtue of which advertisement was issued in 2006, have no application. It is also stated that the very question of exchange of post between SCs and STs relating to very same 2006 advertisement came up for consideration before this Court in W.P.(C) No.19146 of 2009 and a batch of connected writ applications and they were disposed of by a common order on 09.07.2010 by holding that exchange of vacancies in one reserve category by candidates of another reserved category or by candidates of general category shall not be applied to Class -III and Class -IV, employees. In view of such decision of this Court, the petitioners cannot claim appointment by way of exchange against vacant Scheduled Tribe posts. By virtue of a subsequent affidavit field by opposite party No.5 on 06.08,2012, it is stated that presently 74 numbers of vacancies for ST category are available. There is however no indication as to when and how the unfilled 235 posts meant for Scheduled Tribe were filled up.