JUDGMENT
B. P. Das, J.
1. Heard Shri J. K. Rath, learned counsel for the petitioner, and Shri S. N. Misra, learned Counsel1 appearing for the School and Mass Education Department.
2. The petitioner, a member of Socially and Educationally Backward Classes of the State, has filed this writ petition under Articles 226 and 227 of the Constitution of India seeking a direction on O.P, Nos. 2 and 3, i.e., the Chief Executive of Zilla Parishad-cum-Collector and District Magistrate, Angul, and Project Director, District Rural Development Agency, Angul, respectively, to publish the merit list of selection and appoint him in the post of Swechhasevi Sikhya Sahayak under B.Ed. physically handicapped category in Angul education district.
3. The case of the petitioner as transpires from the Writ petition is that he is a B.Ed. Degree-holder and a physically handicapped person. He belongs to ‘Bhandari’ community, which is recognized as one of the Socially and Educationally Backward Classes of the State of Orissa. Pursuant to the advertisement, vide Annexure-1, inviting applications from eligible persons for engagement as Swechhasevi Sikhya Sahayaks (‘S.S.S.’) in Angul education district, the petitioner applied for the said post meant for B. Ed. candidates as a physically handicapped person belonging to S.E.B.C.. In the merit list for B.Ed. category as per Annexure-3, the name of the petitioner was shown as a physically handicapped candidate. According to the petitioner, though his name was initially shown in the merit list but in the final select list as per Annexure-6, his name did not appear. It is alleged that out of 63 posts of S.S.S. in Angul education district for which advertisement was issued, 70% was reserved for C.T. candidates and 30% for B.Ed. candidates. According to the petitioner, 30% of the aforesaid total vacant posts meant for B.Ed. candidates comes to 19 and as per the advertisement in Annexure-1, 3% of the said posts were reserved for ex servicemen, 3% for physically handicapped persons and 1 % for eminent sportsmen. Reservation as per the O.R.V. Act was applicable and it is not disputed that 3% reservation is applicable to physically handicapped persons.
3. (Sic.) While issuing notice, this Court as an interim measure directed O.P. No. 2 to keep one post of S.S.S. earmarked for B.Ed. candidates vacant in Angul education district.
4. A counter affidavit has been filed on behalf of O.P. Nos. 2 and 3. In paragraph 10 of the said counter affidavit the O.Ps. have mainly dealt with the allegations made in the writ petition and have stated that taking the education district as one unit for selection, a select list of 31 candidates was prepared and published showing two candidates as physically handicapped under C.T. category and as there was only 19 posts under B.Ed. category and 3% of reservation for P.M. is less than one, no P.H. candidate was taken from the B.Ed. category. So far as the case of the petitioner as S.E.B.C. candidate is concerned, according to the O.Ps., as the petitioner has secured less percentage of mark, i.e. 44. 83%, he could not be selected under the S.E.B.C. category since the last selected candidate of S.E.B.C. had secured 58.98% of mark. According to Shri Rath for the petitioner, as the petitioner has been shown as P.H. candidate in the merit list under B.Ed. category (Annexure-3) and as he belonged to the S.E.B.C., the issue that falls for determination boils down to the question as to whether 3% of the vacancies which comes to 0.57 can be construed to be ‘one’ or there shall be no reservation for P.H. candidate under B.Ed category.
5. Reservation for P.H. candidates has been made with a view to provide all possible opportunity to the handicapped to develop their own personality and economic independence. The advertisement made for the present posts clearly states that reservation for P.H. candidates shall be applicable.
If the submission of the learned counsel for the State and the plea taken in the counter affidavit are accepted, then wherever having regard to the number of vacancies if the percentage of reservation works out to less than one, then there will be no reservation at all. Such interpretation would render the intention of the Legislature futile and frustrated. In this Connection, reference may be made to the decisionin Theophilos Tigga v. State of Orissa, 59 (1985)
CLT 214, wherein the question that came up for consideration was whether the percentage of reservation calculated for S.T. candidates at 4.54 could be taken as 5. While deciding the aforesaid question, the Division Bench held that fraction of percentage of reservation should be taken as one since it was more than half. It was further held therein that the statute and the rules neither neither make any provision prescribing a minimum percentage nor do they make any provision that a fraction of percentage is to be ignored. It was also held that –
“………. keeping in view the purposes for enacting
the statute, that is, to provide adequate representation of Scheduled Castes and Scheduled Tribes in posts and services under the State and that the statute is a beneficial piece of legislation, we would accept the contention raised on behalf of the petitioner that in the facts and circumstances of this case, the percentage of reservation should be taken as 1 and benefits under the statute should be given to the petitioner. ………”
6. In the present case there was reservation of 3% in the B.Ed. category for P.H. candidates. Admittedly 19 posts were available under B.Ed. category, 3% whereof comes to 0.57 which is more than half. Considering the aforesaid facts and circumstances of the case and in the light of the decision cited above, I am not inclined to accept the contention of the opposite parties that there can be no reservation for P.H. candidates. I, therefore, hold that as the reservation comes to 0.57, the same can be construed to be one.
7. Accordingly, the writ petition is allowed. The opposite parties are directed to take necessary steps for appointment of the petitioner as S.S.S. under B. Ed. category as it appears from Annexure-3 that the petitioner is the only candidate in the merit list, which fact has not been disputed by the O.Ps. This exercise shall be completed within a period of one month of the receipt of this order.
There shall be no order as to cost.