JUDGMENT
L. Mohapatra, J.
1. All the four writ applications are directed against the judgment and order dated 4.7.2001 of the Orissa Administrative Tribunal, Cuttack Bench, Cuttack passed in O.A. No. 39(C) of 1997. Since all the four writ applications arise out of the same judgment of the Tribunal, they were taken up together for hearing.
2. Opposite party No. 5 in O.J.C. No. 1112 of 2001 is the applicant before the Tribunal. She filed the original application challenging selection of all the petitioners to the posts of Junior Stenographers in the District Headquarters of Mayurbhanj on the ground of violation of statutory provisions relating to constitution of Board of Examiners and requisition of names from the Employment Exchange as well as violation of reservation provision as provided in the O.R.V. Act. The Tribunal initially by judgment dated 2.9.1998 allowed the application. Challenging the same, three writ applications were filed before this Court vide O.J.C. Nos. 15525, 16906 and 14200 of 1998. This Court while disposing of the aforesaid three writ applications on 20th April, 1999 observed that notice had not been served on some of the petitioners before the original application was taken up for hearing and, therefore, remanded the matter to the Tribunal for rehearing. Thereafter, all the parties appeared before the Tribunal and the impugned judgment was passed confirming the earlier judgment passed by the Tribunal in allowing the application of the opposite party No. 5.
3. The case of the petitioners is that seven vacancies arose in the posts of Junior Stenographers in different offices of the District Headquarters in the district of Mayurbhanj. The vacancy position was intimated to the Employment Exchange to sponsor names and accordingly as it appears from the record 20 (twenty) names were sponsored by the Employment Exchange. Out of the seven posts, five were kept reserved and out of the five reserved posts, one was reserved for Scheduled Caste, three were reserved for Scheduled Tribe and one was reserved for S.E.B.C. The further case of the petitioners is that as per the Orissa District and Subordinate Offices Stenographers Service (Recruitment and Conditions of Services of Stenographers) Rules 1988, a Board of Examiners was constituted for the purpose of selection of candidates for recruitment to the posts of Junior Stenographers. The Board of Examiners consisted of members such as Collector of the District as Chairman, two other District Officers of the District nominated by the Collector as members and Establishment Officer of the Collectorate as Secretary. As per provisions of the aforesaid rules, direct recruitment to the post of Junior Stenographer can be made through a competitive examination which shall be conducted by the aforesaid Board of Examiners. Therefore, according to the rules, intimations were sent by the Board of Examiners to conduct a recruitment test and out of the 20 (twenty) candidates sponsored by the Employment Exchange, 17 (seventeen) appeared at the test. The present petitioners having been selected by the Board of Examiners were given appointment. The further case of the petitioners is that opposite party No. 5 challenged their selection and appointment before the Orissa Administrative Tribunal, Cuttack Bench on the ground of violation of statutory provisions with regard to constitution of the Board of Examiners and sponsoring the names by the Employment Exchange as well as on the ground of violation of provisions of the O.R.V. Act. Some allegations were also made by the opposite party No. 5 stating that some of the petitioners relatives are working in the Collectorate as a result of which the selection has not been fair.
Shri Sarangi, the learned counsel appearing for the petitioners contended that the opposite party No. 5 having appeared in the recruitment test and failed, has no right to challenge the selection of the Board of Examiners. He further submitted that rules provide for notifying the vacancies to the Employment Exchange for the purpose of sponsoring the names. It was further contended that the Employment Exchange has sponsored twenty candidates, but the petitioners are not aware as to whether open advertisement was made or not. Shri Sarangi, so far as the question relating to reservation is concerned, submitted that in the District Headquarters of Mayurbhanj seven posts of Junior Stenographers fell vacant and out of the seven posts, five were kept reserved for all the three categories and therefore, there was no violation of the O.R.V. Act. According to Shri Sarangi, the Tribunal committed an error by holding that there was 100% reservation so far as Subarnarekha Irrigation Project is concerned. It is contended that the vacancies were for the district and not for any particular department. Since out of the seven posts, five were kept reserved, there was no contravention of the O.R.V. Act and only because three posts available in the office of the Subarnarekha Irrigation Project were filled up by candidates belonging to the reserved category, it cannot be said that there was 100% reservation in respect of the vacancies available in the district.
4. The opposite party No. 5 who appeared in person supported the order of the Tribunal on the ground that apart from contravention of the provisions of O.R.V. Act as found by the Tribunal, it will be seen that some of the petitioners had secured ‘0’ in the written test and, therefore, the Tribunal took cognizance of the same and held that since those petitioners were not qualified to be selected having secured ‘0’ in the written test, a fresh selection should have been made and accordingly directed for holding a fresh selection. So far as reservation is concerned, it was contended by the opposite party No. 5 that even if seven posts are available in the district, three posts were vacant in the office of the Subarnarekha Irrigation Project itself and all the three posts available in the said office could not have been reserved which amounts to 100% reservation.
5. The learned Additional Government Advocate Shri Mohanty appearing for the State Government submitted that the opposite party No. 5 belongs to general category and her position in the general category of candidates is ‘0’. On the basis of the above, it is submitted by Shri Mohanty that even if all the posts are kept unreserved, the opposite party No. 5 in any event cannot get the job. He further contended that the opposite party No. 5 also having secured ‘0’ in the written test, she could not have been appointed against the post and, there is no cause of action for her in filing the original application before the Tribunal.
6. There is no dispute that seven vacancies of Junior Stenographers were available in the district of Mayurbhanj under the Collector. There is also no dispute that out of seven posts, two were available in the Collectorate, Mayurbhanj, three in the office of the Subarnarekha Irrigation Project and two in the office of the Deputy Director, Agriculture. In course of hearing, the learned counsel appearing for the petitioners as well as the learned Addl. Government Advocate also agreed that the office of the Subarnarekha Irrigation Project and office of the Deputy Director, Agriculture do not come under direct control of the Collector, Mayurbhanj. There is no dispute that out of the three posts in the office of the Subarnarekha Irrigation Project, one was reserved for Scheduled Caste and other two were reserved for Scheduled Tribe and, therefore, there was 100% reservation so far as office of the Subarnarekha Irrigation Project is concerned. Since as per O.R.V. Act, five posts are reserved out of the seven i.e. one for Scheduled Caste, three for Scheduled Tribe and one for S.E.B.C. in whichever way distribution of reservation of seats would be made the same shall amount to 100% reservation in any of the offices. Suppose out of the five reserved posts, two are allotted to Collectorate it would amount to 100% reservation, the same position will also at there so far as office of the Deputy Director, Agriculture is concerned. Therefore, we are of the view, that distribution of reserved vacancies in all the three offices as indicated above if taken together, the same does not offend the provisions of the O.R.V. Act. Apart from this, the main ground on which the Tribunal allowed the application of the opposite party No. 5 is that in the written test conducted by the Board of Examiners, two of the petitioners got ‘0’ in English typewriting and English short hand. One of the petitioners got 25 marks in English typewriting and ‘0’ in English short hand. There is no dispute that the opposite party No. 5 also secured ‘0’ in English typewriting as well as English short hand but Court cannot overlook the fact that three of the petitioners did not quality to hold the posts of Junior Stenographers. It is not understood as to how these three petitioners were selected for appointment to the post of Junior Stenographer when two of them secured ‘0’ both in English typewriting and English short hand and one secured 25 marks in English typewriting and ‘0’ in English short hand. The Tribunal considering the above held as follows :
“…….In dependent of the fact that the applicant would also come within the category of disqualified candidates, the fact that the entire selection is vitiated for total disregard of the standard prescribed in the appendix to the rules, cannot be ignored. Learned Standing Counsel submits that since none of the candidates came upto the expected standard, they had to confine the selection to aggregate marks. If none of the candidates was up to the minimum prescribed standard the only course of action was to conduct a fresh selection. There was no compulsion on the part of the Board of Examiners to select candidates who are to be treated as disqualified. Perhaps such a situation would not have arisen if the vacancies had been advertised when more meritorious candidates might have been participated in the selection ….””
7. On consideration of the same, we are of the view that since the selection of some of the candidates was not proper they having come under the category of disqualified candidates, a fresh selection should have been made. The appointing authorities must bear in mind that the appointments are for the posts of Junior Stenographers and no person should be selected for the said post, if fie secured ‘0’ in English typewriting and English short hand. We, therefore, find that judgment of the Tribunal cannot be assailed on this ground. After remand of the case to the Tribunal, it appears that maintainability of the original application was questioned before it and the Tribunal found it to be maintainable inspite of the fact that opposite party No. 5 had not only secured ‘0’ in the test but also was placed at serial No. 9 in the list of candidates for general category. We are of the view that even if opposite party No. 5 did not also qualify, the very fact that three of the petitioners also did not qualify cannot be ignored. For the reasons discussed earlier, we do not find any illegality in the alternate order of the Tribunal,
We therefore do not find any merit in all the four writ applications and the same stand dismissed.
Sujit Barman Roy, C.J.
8. I agree.