Orissa High Court
Dr. Arabinda Panda & Ors vs State Of Odisha & Ors. …. Opposite … on 17 March, 2026
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 13778 of 2025
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
..................
Dr. Arabinda Panda & Ors. .... Petitioners
-versus-
State of Odisha & Ors. .... Opposite Parties
For Petitioners : Mr. B. Routray, Sr. Advocate
along with
Mr. J. Biswal, Advocate
For Opp. Parties : Mr. Pitambar Acharya, Advocate General
along with
Mr. C.K. Pradhan, AGA
Mr. P.K. Mohanty, Sr. Advocate
along with
Ms. K.T. Mudali, Advocate
(Opp. Party No. 3)
Mr. S. Sourav, Advocate
(Intervenor)
PRESENT:
THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY
---------------------------------------------------------------------------------------
Date of Hearing: 17.02.2026 & Date of Judgment: 17.03.2026
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// 2 //
Biraja Prasanna Satapathy, J.
The present writ petition has been filed by the Petitioners
challenging the advertisement so issued by the Odisha Public Service
Commission (in short Commission) vide Advertisement No. 9 of
2024-25 under Annexure-15 and with a further prayer to direct Opp.
Party Nos. 1 & 3 to de-reserve the backlog SC & ST Posts of Medical
Officers (Asst. Surgeons) in Group-A (Junior Branch) of the Odisha
Medical and Health Services Cadre, which has not been filled up for
more than 3 recruitment years, keeping in view of the provisions
contained under Sec. 7 of the Odisha Reservation of Vacancies in post
and services (For Scheduled Castes and Scheduled Tribes) Act, 1975
(in short Act).
2. While assailing the impugned advertisement so issued under
Annexure-15, learned Sr. Counsel appearing for the Petitioners
vehemently contended that since while making the advertisement, to
fill up 411 UR posts, in respect of the reserved category candidates,
the vacancies have been indicated at a much higher side, violating the
reservation principle, the advertisement is not sustainable in the eye of
law and requires interference of this Court.
Page 2 of 35
// 3 //
2.1. It is contended that in view of the decision of the Hon’ble Apex
Court so reported in the case of Indra Sawhney & Ors. Vs. Union of
India & Ors., (1992) Supp (3) SCC 217 and the decision in the case of
R.K. Sabharwal & Ors. Vs. State of Punjab & Ors., (1995) 2 SCC
745, since in the impugned advertisement while advertising 411 posts
for UR category candidates, in respect of reserved category
candidates, the vacancy so indicated, is admittedly much above the
50% ceiling, the advertisement so issued by the Commission in not
following the reservation principle so far as vertical reservation is
concerned, requires interference of this Court.
2.2. Hon’ble Apex Court in Para 810, 812 & 814 of the judgment in
the case of Indra Sawhney has held as follows:-
“810. While 50% shall be the rule, it is necessary not to
put out of consideration certain extraordinary situations
inherent in the great diversity of this country and the
people. It might happen that in farflung and remote areas
the population inhabiting those areas might, on account of
their being out of the mainstream of national life and in
view of conditions peculiar to and characteristical to them,
need to be treated in a different way, some relaxation in this
strict rule may become imperative. In doing so, extreme
caution is to be exercised and a special case made out.
xxx xxx xxx
812. We are also of the opinion that this rule of 50%
applies only to reservations in favour of backward classes
made under Article 16(4). A little clarification is in order at
this juncture : all reservations are not of the same nature.
There are two types of reservations, which may, for the sake
of convenience, be referred to as ‘vertical reservations’ and
‘horizontal reservations’. The reservations in favour of
Page 3 of 35
// 4 //Scheduled Castes, Scheduled Tribes and other backward
classes [under Article 16(4)] may be called vertical
reservations whereas reservations in favour of physically
handicapped [under clause (1) of Article 16] can be
referred to as horizontal reservations. Horizontal
reservations cut across the vertical reservations — what is
called interlocking reservations. To be more precise,
suppose 3% of the vacancies are reserved in favour of
physically handicapped persons; this would be a
reservation relatable to clause (1) of Article 16. The
persons selected against this quota will be placed in the
appropriate category; if he belongs to SC category he will
be placed in that quota by making necessary adjustments;
similarly, if he belongs to open competition (OC) category,
he will be placed in that category by making necessary
adjustments. Even after providing for these horizontal
reservations, the percentage of reservations in favour of
backward class of citizens remains — and should remain —
the same. This is how these reservations are worked out in
several States and there is no reason not to continue that
procedure.
xxx xxx xxx
814. The next aspect of this question is whether a year
should be taken as the unit or the total strength of the cadre,
for the purpose of applying the 50% rule. Balaji [1963 Supp
1 SCR 439 : AIR 1963 SC 649] does not deal with this
aspect but Devadasan [T. Devadasan v. Union of India,
(1964) 4 SCR 680 : AIR 1964 SC 179 : (1965) 2 LLJ 560]
(majority opinion) does. Mudholkar, J speaking for the
majority says : (SCR pp. 694-95)
“We would like to emphasise that the guarantee
contained in Article 16(1) is for ensuring equality of
opportunity for all citizens relating to employment, and to
appointments to any office under the State. This means that
on every occasion for recruitment the State should see that
all citizens are treated equally. The guarantee is to each
individual citizen and, therefore, every citizen who is
seeking employment or appointment to an office under the
State is entitled to be afforded an opportunity for seeking
such employment or appointment whenever it is intended to
be filled. In order to effectuate the guarantee each year of
recruitment will have to be considered by itself and the
reservation for backward communities should not be soPage 4 of 35
// 5 //excessive as to create a monopoly or to disturb unduly the
legitimate claims of other communities.”
On the other hand is the approach adopted by Ray, CJ
in Thomas [(1976) 2 SCC 310, 380 : 1976 SCC (L&S) 227 :
(1976) 1 SCR 906] . While not disputing the correctness of
the 50% rule he seems to apply it to the entire service as
such. In our opinion, the approach adopted by Ray, CJ
would not be consistent with Article 16. True it is that the
backward classes, who are victims of historical social
injustice, which has not ceased fully as yet, are not properly
represented in the services under the State but it may not be
possible to redress this imbalance in one go i.e., in a year
or two. The position can be better explained by taking an
illustration. Take a unit/service/cadre comprising 1000
posts. The reservation in favour of Scheduled Tribes,
Scheduled Castes and Other Backward Classes is 50%
which means that out of the 1000 posts 500 must be held by
the members of these classes i.e., 270 by Other Backward
Classes, 150 by Scheduled Castes and 80 by Scheduled
Tribes. At a given point of time, let us say, the number of
members of OBCs in the unit/service/category is only 50, a
short fall of 220. Similarly the number of members of
Scheduled Castes and Scheduled Tribes is only 20 and 5
respectively, shortfall of 130 and 75. If the entire
service/cadre is taken as a unit and the backlog is sought to
be made up, then the open competition channel has to be
choked altogether for a number of years until the number of
members of all backward classes reaches 500 i.e., till the
quota meant for each of them is filled up. This may take
quite a number of years because the number vacancies
arising each year are not many. Meanwhile, the members of
open competition category would become age barred and
ineligible. Equality of opportunity in their case would
become a mere mirage. It must be remembered that the
equality of opportunity guaranteed by clause (1) is to each
individual citizen of the country while clause (4)
contemplates special provision being made in favour of
socially disadvantaged classes. Both must be balanced
against each other. Neither should be allowed to eclipse the
other. For the above reason, we hold that for the purpose of
applying the rule of 50% a year should be taken as the unit
and not the entire strength of the cadre, service or the unit,
as the case may be.
(d) Was Devadasan correctly decided?”
Page 5 of 35
// 6 //
2.3. Similarly, Hon’ble Apex Court in Para 4, 7 & 8 of the judgment
in the case of R.K. Sabharwal has held as follows:-
“4. When a percentage of reservation is fixed in respect
of a particular cadre and the roster indicates the reserve
points, it has to be taken that the posts shown at the reserve
points are to be filled from amongst the members of reserve
categories and the candidates belonging to the general
category are not entitled to be considered for the reserved
posts. On the other hand the reserve category candidates can
compete for the non-reserve posts and in the event of their
appointment to the said posts their number cannot be added
and taken into consideration for working out the percentage
of reservation. Article 16(4) of the Constitution of India
permits the State Government to make any provision for the
reservation of appointments or posts in favour of any
Backward Class of citizens which, in the opinion of the State
is not adequately represented in the Services under the State.
It is, therefore, incumbent on the State Government to reach
a conclusion that the Backward Class/Classes for which the
reservation is made is not adequately represented in the State
Services. While doing so the State Government may take the
total population of a particular Backward Class and its
representation in the State Services. When the State
Government after doing the necessary exercise makes the
reservation and provides the extent of percentage of posts to
be reserved for the said Backward Class then the percentage
has to be followed strictly.
xxx xxx xxx
7. When all the roster points in a cadre are filled the
required percentage of reservation is achieved. Once the
total cadre has full representation of the Scheduled
Castes/Tribes and Backward Classes in accordance with the
reservation policy then the vacancies arising thereafter in the
cadre are to be filled from amongst the category of persons to
whom the respective vacancies belong. Jeevan Reddy, J.
speaking for the majority in Indra Sawhney v. Union of
India [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 :
(1992) 22 ATC 385 : AIR 1993 SC 477] observed as under:
(SCC p. 737, para 814)
“Take a unit/service/cadre comprising 1000 posts. The
reservation in favour of Scheduled Tribes, Scheduled Castes
and Other Backward Classes is 50% which means that out of
the 1000 posts 500 must be held by the members of these
Page 6 of 35
// 7 //classes i.e. 270 by Other Backward Classes, 150 by
Scheduled Castes and 80 by Scheduled Tribes. At a given
point of time, let us say, the number of members of OBCs in
the unit/service/category is only 50, a shortfall of 220.
Similarly the number of members of Scheduled Castes and
Scheduled Tribes is only 20 and 5 respectively, shortfall of
130 and 75. If the entire service/cadre is taken as a unit and
the backlog is sought to be made up, then the open
competition channel has to be choked altogether for a
number of years until the number of members of all
Backward Classes reaches 500, i.e., till the quota meant for
each of them is filled up. This may take quite a number of
years because the number of vacancies arising each year are
not many. Meanwhile, the members of open competition
category would become age-barred and ineligible. Equality
of opportunity in their case would become a mere mirage. It
must be remembered that the equality of opportunity
guaranteed by clause (1) is to each individual citizen of the
country while clause (4) contemplates special provision being
made in favour of socially disadvantaged classes. Both must
be balanced against each other. Neither should be allowed to
eclipse the other. For the above reason, we hold that for the
purpose of applying the rule of 50% a year should be taken
as the unit and not the entire strength of the cadre, service or
the unit as the case may be.”
xxx xxx xxx
8. The quoted observations clearly illustrate that the rule
of 50% a year as a unit and not the entire strength of the
cadre has been adopted to protect the rights of the general
category under clause (1) of Article 16 of the Constitution of
India. These observations in Indra Sawhney case [1992 Supp
(3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385
: AIR 1993 SC 477] are only in relation to posts which are
filled initially in a cadre. The operation of a roster, for filling
the cadre-strength, by itself ensures that the reservation
remains within the 50% limit. Indra Sawhney case [1992
Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC
385 : AIR 1993 SC 477] is not the authority for the point that
the roster survives after the cadre-strength is full and the
percentage of reservation is achieved.”
2.4. It is also contended that since admittedly unfilled backlog
vacancies in respect of SC & ST category candidates have not been
Page 7 of 35
// 8 //
filled up for a continuous period of 3 (three) years, instead of carrying
forward those vacancies as backlog vacancies, in terms of the
provisions contained under Sec. 7 of the Act, the said posts coming
under the backlog vacancy, should have been de-reserved and filled up
by eligible UR candidates. Since without following the provisions
contained under Sec. 7 of the Act, while issuing the advertisement in
respect of reserved category candidates, such backlog vacancies have
been included, the same is also not permissible and requires
interference of this Court. Section 7 of the Act reads as follows:-
“7. Carry-forward of reservation and de-
reservation – If, in any recruitment year, the number of
candidates either from Scheduled Castes or Scheduled
Tribes is less than the number of vacancies reserved for
them even after exchange of reservation between the
Scheduled Castes and Scheduled Tribes, the remaining
vacancies may be filled up by general candidates after
dereserving the vacancies in the prescribed manner but the
vacancies so dereserved may be carried forward to
subsequent three years of recruitment:
Provided that in the years following the recruitment
year the normal reserved vacancies together with the
vacancies carried forward shall not exceed fifty per cent of
the total number of vacancies of the year in which
recruitment is made and the excess over fifty per cent of the
reserved vacancies shall be carried forward to subsequent
years of recruitment.
Page 8 of 35
// 9 //
[Provided further that the provisions of this section
shall not apply to the reserved vacancies to be filled up by
promotion on the basis of selection where such promotion
is to be made-
(a) from Class III Posts to Class II posts,
(b) within Class II posts,
(c) from Class Il posts to Class I posts, and
(d) from posts in the lowest rung of Class I.]
[Provided also that nothing in this section shall apply
to the vacancies reserved in respect of Class III and Class
IV posts. If candidates are not available for filling up such
reserved vacancies these remaining vacancies shall be
filled up by holding fresh recruitment only from candidates
belonging to the Scheduled Castes or the Scheduled
Tribers, as the case may be, and such sub-section(5) of
Section 9 shall not apply to such vacancies.]”
2.5. It is further contended that this Court while issuing notice of the
matter vide order dtd.15.05.2025, passed an interim order to the effect
that selection process pursuant to the advertisement issued under
Annexure-15 shall continue, but the same shall not be finalized
without leave of this Court.
2.6. It is also contended that on a similar issue, this Court in W.P.(C)
No. 19250 of 2012 (Akhaya Kumar Swain Vs. State of Odisha &
Ors.) decided on 05.01.2017 has held as follows in Para 5:-
Page 9 of 35
// 10 //
5. We after going through the provision of the Act and the
judgments pronounced by the Hon‟ble Apex court in the case of
Indra Sawhney Vrs. Union of India (supra) wherein the
Constitution Bench of Hon‟ble Supreme Court has been pleased
to hold that the limit of reservation will not exceed 50%, but
however, in the said judgment it has also been indicated that in
the interest of backward class of citizens, the state cannot reserve
all the appointments under the State or even a majority of them.
The doctrine of equality of opportunity in clause-1 of Art.16 is to
be reconciled in favour of backward classes under clause 4 of
Art.16 in such a manner that the latter while serving the clause of
backward classes shall not unreasonably encroach upon the field
of equality. In the case of Trilok Nath Titu Vrs. State of Jammu
and Kashmir, reported in AIR 1967 SC 1283 wherein it has been
held by the Hon‟ble Apex Court that where the percentage of
reservation is not reasonable, having regard to employment
opportunities of the general public to the cadre of service in
question, the population of the entire State, the extent of their
backwardness and the like, the interference by the Court against
unreasonable reservation is called for.
The Hon‟ble Apex court has further been pleased to hold in
the case of R. K. Sabharwal and Others Vrs. State of Punjab and
Others, reported in (1995) 2 SCC 745 by its Constitution Bench
and provided the measure so that the limit of 50% reservation
may not exceed and for that purpose the proposition has been laid
down for making a roster indicating reserved points, required by
the Government instruction to be implemented in the form of
running account from year to year, it has further been held that
the percentage of reservation has to be worked out in relation to
the number of posts which form the cadre strength. The concept of
vacancy has no relevance in operating the percentage of
Page 10 of 35
// 11 //
reservation. This principle has been evolved so that the ceiling
limit of reservation may not go beyond 50%.
The Hon‟ble Apex Court yet in another judgment rendered in
the case of Post Graduate Institute of Medical Education and
Research, Chandigarh Vrs. Faculty Association and Others,
reported in (1998) 4 SCC 1, wherein the subject matter was as to
whether in a single cadre post, reservation for SCs, STs and
OBCs can be applied either directly or through the roster in
which vacancies are rotated amongst general category and
reserved category candidates, the Hon’ble Apex court holding
therein has stated that where such a single post in the cadre is
there, it cannot be reserved, otherwise it will create 100%
reservation of such post whenever such reservation is to be
implemented.
It has further been held that Articles 14, 15 and 16 including
Art.16(4) 16(4-A) must be applied in such a manner that balance
is struck in the matter of appointments by creating reasonable
opportunities for reserved classes and also for other members of
the community who do not belong to reserved classes.
It has been observed that the doctrine of equality of
opportunity under Article 16(1) is to be reconciled with
concessions in favour of backward classes under Article 16 (4) in
such a manner the letter while serving the cause of backward
classes, shall not unreasonably encroach upon the field of
equality.
The concept of upper limit of 50% of reservation has again fell
for consideration before Hon’ble Apex court in the case of M.
Nagraj Vrs. Union of India in which the 85th Constitutional
amendment was under scrutiny. The Union Government in order
to come out from the ratio laid down by Hon’ble Apex Court in
Page 11 of 35
// 12 //
the case of Ajit Singh and Others Vrs. State of Punjab and
Othres, reported in (1996) 2 SCC 715, Ajit Singh-II and Others
Vrs. State of Punjab and Others, reported in (1999) 7 SCC 209,
Ajit Singh-3 Vrs. State of Punjab, reported in (2000) (I) SCC
430 and Virpal Singh Chauhan etc. Vrs. Union of India and
Others, reported in 1995 6 SCC 684 wherein the catch up theory
was laid down in the matter of promotion given to a reserved
category candidate promoted on the basis of reservation earlier
than his senior general category candidates in the feeder grade,
but the moment the senior general category candidates in the
feeder cadre will get promotion to the higher grade he will catch
up the seniority of the feeder grade, in order to come out from this
, the Constitution has been amended by inserting a clause under
Article 16 (4-A) by inserting a word “consequential”, meaning
thereby the reserved category candidate once granted promotion
to the higher grade, they will retain their seniority for all the time
to come. This Constitutional amendment was challenged in the
case of M. Nagraj and Others (supra) and Hon’ble Apex Court
while dealing with the issue has endorsed the 85th Amendment
but with certain modifications which is as follows:-
“121. The impugned constitutional amendments by which Articles
16(4A) and 16(4B) have been inserted flow from Article 16(4).
They do not alter the structure of Article 16(4). They retain the
controlling factors or the compelling reasons, namely,
backwardness and inadequacy of representation which enables
the States to provide for reservation keeping in mind the overall
efficiency of the State administration under Article 335. These
impugned amendments are confined only to SCs and STs. They do
not obliterate any of the constitutional requirements, namely,
ceiling-limit of 50% (quantitative limitation), the concept of
creamy layer (qualitative exclusion), the subclassification
between OBC on one hand and SCs and STs on the other hand as
held in Indra Sawhney5, the concept of post-based Roster with in-
built concept of replacement as held in R.K. Sabharwal.
Page 12 of 35
// 13 //
The Hon’ble Apex court in the case of M. Nagraj (supra) has
further held at paragraph 122 that the concept of creamy layer
and the compelling reasons, namely, backwardness, inadequacy
of representation and overall administrative efficiency are all
constitutional requirement without which the structure of equality
of opportunity in Article 16 would collapse.
In paragraph 123 it has further been held that the main issue
concerns “the extent of reservation”. In this regard the State
concerned will have to show in each case the existence of
compelling reasons, namely, backwardness, inadequacy of
representation and overall administrative efficiency before
making provision for reservation.
The provision of 85th amendment has been made as enabling
provision. “The State is not bound to make reservation for SCs/
STs in the matter of promotion; however, if they wish to exercise
their discretion and make such provision, the State has to collect
quantifiable data showing backwardness of the class and
inadequacy of representation of that class in public employment
in addition to compliance of Article 335. It is made clear that
even if the State has compelling reasons, as stated above, the
State will have to see that its reservation provision does not lead
to excessiveness so as to breach the ceiling-limit of 50% or
obliterate the creamy layer or extend the reservation
indefinitely.”
Hon‟ble Apex court in paragraph 124 has uphold the
constitutional validity of the Constitution (Seventy-Seventh
Amendment) Act, 1995, the Constitution (Eighty-First
Amendment) Act, 2000, the Constitution (Eighty-Second
Amendment) Act, 2000 and the Constitution (Eighty-Fifth
Amendment) Act, 2001 with the above conditions.
Page 13 of 35
// 14 //
In paragraph 125 it has been held that the individual
enactments of appropriate States and that question will be gone
into in individual writ petition by the appropriate bench in
accordance with law laid in the case of M. Nagrajan.
It is evident from the authoritative pronounced as discussed
above that the limit of reservation cannot go beyond 50%, but
since to that effect the Constitutional amendment has been
brought by way of 81st amendment Act, 2000 whereby and where
under the provision under Article 16 (4-B) has been inserted
which also restrain the ceiling limit of 50% reservation on total
number of vacancy of that year. For ready reference Article 16(4-
B) is quoted below:-
“Art.16(4-B). Unfilled reserved vacancies may be
considered as a separate class.- This clause
authorizes the State to consider the unfilled reserved
vacancies as a separate class which shall not be
considered together with the vacancies of the year in
which they are being filled up to determine the ceiling
of 50% of the total vacancies of that year.
Providing for such reservation beyond 50% would
be violative of Article 16(4-B).”
It is settled that the Constitution will prevail over any statutory
provision either formulated by the Centre or the State unless the
Constitution is amended to that effect and if any provision is
inconsistent with the Constitutional provision, the same will be
said to be illegal.
Further it is also not in dispute that the State or the Union has
been conferred with power by the Hon’ble Apex Court while
endorsing the 81st constitutional amendment Act and the 85th
constitutional amendment Act for providing the benefit of
accelerated seniority or exceeding the ceiling limit of 50%, but
Page 14 of 35
// 15 //
subject to the rider as has been put under paragraph 121 of the
judgment rendered in the case of M. Nagraj (supra).
We after going through the Act, 2008 do not find that the
parameter fixed under paragraph 121 of the judgment has been
followed or not, since in this regard nothing has been referred in
the Act.
We after going through the Act, 2008 do not find that the
parameter fixed under paragraph 121 of the judgment has been
followed or not, since in this regard nothing has been referred in
the Act.
Since this issue is not before us as to whether before
enactment of the Act, 2008 the State Government has taken
effective steps in terms of the parameter fixed by Hon’ble Apex
Court in paragraph 121 of the judgment in the case of M. Nagraj
(supra) and even the Act, 2008 is not questioned, hence we are
not going into the legality and propriety of the Act, 2008 in the
instant case, but the fact remains that before exceeding the limit
of reservation from 50%, the State or the Union is supposed to
follow the parameter fixed under paragraph 121 of the judgment
rendered in the case of M. Nagraj (supra).”
2.7. It is accordingly contended that since admittedly the reservation
so provided for in the impugned advertisement, has exceeded the
permissible 50% limit, in view of the decision in the case of Indra
Sawhney as well as R.K. Sabharwal so cited (supra) and the decision
in the case of Akhaya Kumar Swain, the impugned advertisement is
required to be quashed with a direction to issue a fresh advertisement
by limiting the reservation to 50% and to fill up the backlog vacancies
Page 15 of 35
// 16 //
meant for SC & ST category candidates by de-reserving those posts,
in terms of the provisions contained under Sec. 7 of the Act.
3. Mr. P. Acharya, learned Advocate General on the other hand made
his submission basing on the stand taken in the counter affidavit so
filed. Placing reliance on the provisions contained under Art. 16 (4-B)
of the Constitution of India, learned Advocate General contended that
in view of the provisions so contained, ceiling limit to the extent of
50%, cannot be made applicable, so far as backlog vacancies are
concerned. Article 16(4-B) of the Constitution of India reads as
follows:-
“Nothing in this article shall prevent the State from considering
any unfilled vacancies of a year which are reserved for being filled
up in that year in accordance with any provision for reservation
made under clause (4) or clause (4A) as a separate class of
vacancies to be filled up in any succeeding year or years and such
class of vacancies shall not be considered together with the
vacancies of the year in which they are being filled up for
determining the ceiling of fifty per cent, reservation on total
number of vacancies of that year.
[The Constitution (Eighty-first Amendment) Act, 2000, aimed to
protect reservations for SCs and STs in the backlog of vacancies. A
new clause (4B) was added to Article 16 of the Constitution of
India by the 81st Amendment Act of 2000, after clause (4A). This
gave the states the authority to treat unfilled reserved vacancies
from one year as a separate class of vacancies to be filled in thePage 16 of 35
// 17 //following year or years. The new provision stated that such
vacancies must not be included in the vacancies of the year in
which they are filled, in order to calculate the overall vacancy
reservation ceiling of 50% for that year. This modification
essentially eliminated the 50% cap on reservations for backlog
vacancies.”
3.1. It is also contended that basing on the requisition made by the
Department vide letter dtd.12.02.2025, the advertisement in question
was issued by the Commission to conduct the recruitment of 5248
posts, which includes 411 UR Posts, 736 for SEBC, 1620 for SC and
2481 for ST. Stand taken in Para 18 of the counter affidavit so filed by
Opp. Party No. 1 reads as follows:-
“18. That, in reply to the averments made in paragraph-
16 of the writ petition, it is humbly submitted that, the
Secretary, Odisha Public Service Commission, Cuttack
had been requested vide this Department letter No-4579,
dated-12.02.2025 for recruitment of 5248 posts of
regular Medical Officers in the rank of Group-A (Junior
Branch) of the Odisha Medical Health Services Cadre
for the year 2024-25 under Health and Family Welfare
Department. The OPSC vide Advertisement No-09 of
2024-25 advertised the said posts indicating 411 posts
for UR Cate Category, 736 posts for SEBC Category,
1620 posts for SC Category and 2481 posts for ST
Category. The Petitioners have requested the Hon’ble
High Court to quash the impugned advertisement No. 9
of 2024-25 underAnnexure-15 in the present Writ
Petition.”
3.2. It is contended that since the vacancies indicated in the impugned
advertisement also includes the backlog vacancies so meant for SC
Page 17 of 35
// 18 //
and ST as well as OBC, in view of the provisions contained under
Article 16 (4-B) of the Constitution of India, no illegality or
irregularity can be found with regard to the requisition made by the
Govt. on 12.02.2025 and consequential advertisement issued by the
Commission under Annexure-15.
3.3. It is also contended that even though in terms of the provisions
contained under Sec. 6 & 7 f the Act, there is provision for exchange
of the vacancies in between SC & ST category candidates and de-
reservation of such posts meant for SC & ST, to be filled up by
General Category candidates after carrying forward the vacancies so
de-reserved to subsequent three years of recruitment, but the
Department of SC & ST Development relying on the decision in the
case of M. Nagraj Vs. Union of India (2006) 8 SCC 212 issued a
letter on 20.03.2008 with the following stipulation:-
“In the case of Article 16(413) of the Constitution
following the judgment in R.K. Sabharwal, the concept
of post-based roster is introduced. Consequently,
specific slots for OBC, SC and ST as well as General
candidate have to be maintained in the roster. For want
of candidate in a particular category the post may
remain unfilled. Nonetheless, that slot has to be filled
only by the specified category.”
Page 18 of 35
// 19 //
3.4. It is also contended that since the post in question is a base level
post, in view of the decision in the case of M. Nagraj so cited (supra),
such base level post cannot be de-reserved in terms of the provisions
contained under Sec. 6 & 7 of the Act. Therefore, basing on the
decision in the case of M. Nagraj so cited (supra), clarification has
been issued by SC & ST Development Department on 20.03.2008,
holding therein that such base level posts cannot be de-reserved and
those posts have to be carried forward. Stand taken in Para 20 of the
counter reads as follows:-
“20. Therefore, Rule-6 of the ORV Act explicitly makes it
clear that exchange of reservation between the SC and ST
candidates and it does not applicable to the UR Category.
However, the ST & SC Development Department vide Letter
No.11704 dated 20.03.2008 has directed that Supreme
Court in case of M. Nagraj-Vrs-Union of India (2006)
others, has observed that:
“In the case of Article 16(413) of the
Constitution following the judgment in R.K.
Sabharwal, the concept of post-based roster is
introduced. Consequently, specific slots for
OBC, SC and ST as well as General candidate
have to be maintained in the roster. For want of
candidate in a particular category the post may
remain unfilled. Nonetheless, that slot has to be
filled only by the specified category.”
Page 19 of 35
// 20 //
In view of the above observation by the Supreme
Court, ST & SC Development Department has clarified
that no de-reservation is allowed in initial appointment.
The implication of this judgment is that in case of
non-availability of a particular class of candidate, the
same cannot be de-reserved to be filled up by other
categories of the candidates. In other words, exchange of
reservation between SC & ST will not be permissible.
Hence the prayers of the petitioners have no leg to stand
in the eye of law.”
3.5. Reliance was placed to a decision of this Court in the case of Dr.
Deepak Kumar Samal & Ors. Vs. State of Odisha & Anr. (W.P.(C)
No. 38690 of 2021) decided on 22.12.2021. This Court in Para 10 of
the said Judgment has held as follows:-
“10. In view of such position, this Court is of the considered
view that it is not justified to issue writ of mandamus or
direction to the appropriate Government to deserve the posts.
Rather it is the complete domain of the authority to look into
the grievance of the petitioners and pass appropriate order in
accordance with law. Therefore, the State authority shall act in
consonance of the provisions contained in Sections 6 and 7 of
the ORV Act, 1975 and in terms of the law laid down by the
apex Court in G.S. Gill (supra) as expeditiously as possible so
that unreserved categories applicants can get the benefits as
due and admissible in accordance with law.”
3.6. Making all these submissions, learned Advocate General
contended that since there is complete dearth of doctors in the State
Page 20 of 35
// 21 //
and because of the interim order, the post in question are not being
filled up, the State is facing a crunch situation. Accordingly, it is
contended that the writ petition be disposed of by according the
permission to the Commission to recommend the names of the
selected candidates and State be permitted to fill up the posts so
advertised taking into account the recommendation to be made.
4. Mr. P.K. Mohanty, learned Sr. Counsel appearing for the
Commission on the other hand made his submission basing on the
stand taken in the counter affidavit so filed by Opp. Party No. 3. It is
contended that the advertisement in question under Annexure-15 was
issued in terms of the requisition made by the Govt. in the Health &
Family Welfare Department on 12.02.2025. In the said requisition
made by the Department, the backlog vacancies were indicated at
4919 and the non-joining vacancies at 329. Accordingly, in terms of
the requisition, the Commission issued the advertisement under
Annexure-15 and has completed the recruitment in question by
conducting the test. But because of the interim order passed by this
Court, the Commission is not in a position to publish the result and
consequential recommendation of the selected candidates for their
Page 21 of 35
// 22 //
appointment to the Govt.-Opp. Party No. 1. Stand taken in Para 3 of
the counter affidavit reads as follows:-
“That, it is humbly submitted that, the Government in
Health & Family Welfare Department, vide its
requisition Letter No. 4579/H. dt.12.02 2025, requested
OPSC to conduct recruitment to 5248 (1749-w) posts
(including Backlog vacancies (4919)+Non-joining
vacancies (329))e (UR-411(137-w), SEBC-736(245-w),
SC-1620 (540-w), ST-2481 (827-w)) of Medical Officers
in the rank of Group-A (Junior Branch). Basing on the
requisition, relevant Recruitment Rules and subsequent
Amendment Rules, Odisha Public Service Commission
has issued the Advertisement No. 09 of 2024-25 for the
recruitment of 5248 posts of Medical Officer.”
5. To the submissions made by the learned Advocate General as well
as learned Sr. Counsel appearing for the Commission, Mr. B. Routray,
learned Sr. Counsel appearing for the Petitioners made further
submission contending inter alia that even though there is no bar to
make the advertisement in respect of backlog vacancies, but those
backlog vacancies belonging to ST & SC category as well as OBC
category should have been segregated and reflected in the
advertisement along with the current vacancies so available for such
reserved category candidates.
Page 22 of 35
// 23 //
5.1. Since for the current recruitment so advertised under Annexure-
15, 411 posts have been kept for UR candidates, in view of the
decision in the case of Indra Sawhney so followed by this Court in
the case of Akhaya Kumar Swain and the provisions contained under
Art. 16(4-B) of the Constitution of India, the reserved category
candidates cannot exceed 411, keeping in mind the 50% ceiling.
5.2. In support of his submission, reliance was placed to a decision of
the Hon’ble Apex Court in the case of State of U.P. & Ors. Vs.
Sangam Nath Pandey & Ors. (Civil Appeal No.4381 of 2010).
Hon’ble Apex Court in Para 16, 19, 22 & 23 of the said Judgment has
held as follows:-
“16. In any recruitment year, it may happen that the candidates
belonging to the reserved category may not be available to fill the
vacancies falling to the share of the particular reserved category. In
such circumstances, subsection (2) of Section 3 enables the State to
carry forward the unfilled vacancy/vacancies to be filled through
special recruitment as a separate class of vacancy. Such class of
vacancy cannot be intermingled with the vacancies of the year of
recruitment in which it is filled. It also cannot be counted for the
purpose of determining of ceiling of 50 per cent reservation of the total
vacancies of that year. The provision contained in sub-section 2 is,
notwithstanding anything to the contrary contained in sub-section 1,
which provide for a total 50 per cent reservation for the categories of
Scheduled Castes, Scheduled Tribes and Other Backward Classes, i.e.,
21 per cent, 2 per cent and 27 per cent respectively. The terminology ofPage 23 of 35
// 24 //the aforesaid section is clear and unambiguous. Therefore, construed in
its ordinary, literal sense, the sub section provides that the carried
forward vacancies are not to be included in calculating the 50 per cent
cap as contained in Proviso 2 to Section 3 (1). The special recruitment
may be held in that very year or in the succeeding year or years of
recruitment as a separate class of vacancy. Sub-section 3 further
provides that if vacancy/vacancies reserved for Scheduled Tribes
remained unfilled even after three special recruitment made under sub-
section 2, such vacancies are to be filled up from amongst persons
belonging to the Scheduled Castes. In other words, unfilled vacancies
falling to the share of Backward Classes and Scheduled Castes and
Scheduled Tribes, can be offered to the Scheduled Castes category.
These provisions clearly indicate that the posts which are meant for the
reserved categories would be offered only to the reserved categories so
long as the reserved roster points are not occupied by the reserved
categories.
xxx xxx xxx
19. A harmonious construction of sections 2(d), 3(2) and 3(5) would
lead to the conclusion, as stated by the Division Bench, that only those
vacancies can be declared backlog vacancies, within the reserved
category, which were subject matter of advertisement but remained
unfilled because of non-availability of suitable candidates, within the
reserved category, after selection. It is only in respect of such vacancy
that the procedure qua backlog vacancy can be adopted. Any vacancy,
which has not been subjected to a complete process of selection, even
though vacant, cannot be treated as a backlog vacancy.
xxx xxx xxx
22. The exercise of identifying the year-wise and cadre wise vacancies
ought to have been conducted by the State prior to the issuance of the
advertisement as rightly noticed by the learned single Judge. ThePage 24 of 35
// 25 //purpose of introducing a roster system was to ensure that the
percentages of reservation provided for various categories of persons is
effectively and speedily achieved. This can only be done if the
department concerned identifies the year-wise vacancies in the cadre.
Once the vacancies are identified, it is enjoined upon the authorities to
ensure that the selection procedure is completed speedily. This is
necessary to avoid uncertainty to all categories of candidates. General
category, as well as, the reserved category candidates are likely to be
adversely affected in case the vacancies are not filled within a
reasonable period of time. As a result of undue delay, certain
candidates will always be in the danger of becoming overage to apply
for some particular posts falling in a particular year of recruitment.
Unnecessary lethargy in filling up the posts would also lead to further
uncertainty and chaos among the recruits with regard to their seniority,
confirmation and promotions. Such a situation only gives rise to
unavoidable litigation, lasting for many long years. This case
epitomizes such malaise.
23. In our opinion, the State Government, in the present case, ought to
have initiated the necessary selection procedure upon due verification
of the posts available for the reserved categories. It was not sufficient to
merely send the requisition to the Public Service Commission. It was
necessary for the State to pursue the matter with the Public Service
Commission for completion of the selection process. Otherwise, the
very purpose of introducing the roster system and a running account
would be totally defeated We may reiterate here he observations made
by this Court in the case of R.K. Sabharwal (supra). With regard to the
operation of the roster system, in the aforesaid case, it was observed as
follows:-
“5. We see considerable force in the second contention raised by
the learned counsel for the petitioners. The reservations provided
under the impugned Government instructions are to be operatedPage 25 of 35
// 26 //in accordance with the roster to be maintained in each
Department. The roster is implemented in the form of running
account from year to year. The purpose of “running account” is
to make sure that the Scheduled Castes/Schedule Tribes and
Backward Classes get their percentage of reserved posts. The
concept of “running account” in the impugned instructions has to
be so interpreted that it does not result in excessive reservation.
“16% of the posts …” are reserved for members of the Scheduled
Castes and Backward Classes. In a lot of 100 posts those falling
at Serial Numbers 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87
and 91 have been reserved and earmarked in the roster for the
Scheduled Castes. Roster points 26 and 76 are reserved for the
members of Backward Classes. It is thus obvious that when
recruitment to a cadre starts then 14 posts earmarked in the
roster are to be filled from amongst the members of the Scheduled
Castes. To illustrate, first post in a cadre must go to the
Scheduled Caste and thereafter the said class is entitled to 7th,
15th, 22nd and onwards up to 91st post. When the total number of
posts in a cadre are filled by the operation of the roster then the
result envisaged by the impugned instructions is achieved. In
other words, in a cadre of 100 posts when the posts earmarked in
the roster for the Scheduled Castes and the Backward Classes are
filled the percentage of reservation provided for the reserved
categories is achieved. We see no justification to operate the
roster thereafter. The “running account” is to operate only till
the quota provided under the impugned instructions is reached
and not thereafter. Once the prescribed percentage of posts is
filled the numerical test of adequacy is satisfied and thereafter the
roster does not survive. The percentage of reservation is the
desired representation of the Backward Classes in the State
Services and is consistent with the demographic estimate based
on the proportion worked out in relation to their population. ThePage 26 of 35
// 27 //numerical quota of posts is not a shifting boundary but represents
a figure with due application of mind. Therefore, the only way to
assure equality of opportunity to the Backward Classes and the
general category is to permit the roster to operate till the time the
respective appointees/promotees occupy the posts meant for them
in the roster. The operation of the roster and the “running
account” must come to an end thereafter. The vacancies arising
in the cadre, after the initial posts are filled, will pose no
difficulty. As and when there is a vacancy whether permanent or
temporary in a particular post the same has to be filled from
amongst the category to which the post belonged in the roster.
For example the Scheduled Caste persons holding the posts at
roster points 1, 7, 15 retire then these slots are to be filled from
amongst the persons belonging to the Scheduled Castes.
Similarly, if the persons holding the post at points 8 to 14 or 23 to
29 retire then these slots are to be filled from among the general
category. By following this procedure there shall neither be
shortfall nor excess in the percentage of reservation.
6. The expressions ‘posts’ and ‘vacancies’, often used in the
executive instructions providing for reservations, are rather
problematical. The word ‘post’ means an appointment, job, office
or employment. A position to which a person is appointed.
‘Vacancy’ means an unoccupied post or office. The plain meaning
of the two expressions make it clear that there must be a ‘post’ in
existence to enable the ‘vacancy’ to occur. The cadre-strength is
always measured by the number of posts comprising the cadre.
Right to be considered for appointment can only be claimed in
respect of a post in a cadre. As a consequence, the percentage of
reservation has to be worked out in relation to the number of
posts which form the cadre-strength. The concept of ‘vacancy’
has no relevance in operating the percentage of reservation.
Page 27 of 35
// 28 //
7. When all the roster points in a cadre are filled the required
percentage of reservation is achieved. Once the total cadre has
full representation of the Scheduled Castes/Tribes and Backward
Classes in accordance with the reservation policy then the
vacancies arising thereafter in the cadre are to be filled from
amongst the category of persons to whom the respective
vacancies belong. Jeevan Reddy, J. speaking for the majority in
Indra Sawhney v. Union of India (1992 Supp (3) SCC 217)
observed as under: (SCC p. 737, para 814)
“Take a unit/service/cadre comprising 1000 posts. The
reservation in favour of Scheduled Tribes, Scheduled Castes and
Other Backward Classes is 50% which means that out of the 1000
posts 500 must be held by the members of these classes i.e. 270 by
Other Backward Classes, 150 by Scheduled Castes and 80 by
Scheduled Tribes. At a given point of time, let us say, the number
of members of OBCs in the unit/service/category is only 50, a
shortfall of 220. Similarly the number of members of Scheduled
Castes and Scheduled Tribes is only 20 and 5 respectively,
shortfall of 130 and 75. If the entire service/cadre is taken as a
unit and the backlog is sought to be made up, then the open
competition channel has to be choked altogether for a number of
years until the number of members of all Backward Classes
reaches 500, i.e., till the quota meant for each of them is filled up.
This may take quite a number of years because the number of
vacancies arising each year are not many. Meanwhile, the
members of open competition category would become age-barred
and ineligible. Equality of opportunity in their case would become
a mere mirage. It must be remembered that the equality of
opportunity guaranteed by clause (1) is to each individual citizen
of the country while clause (4) contemplates special provision
being made in favour of socially disadvantaged classes. Both
must be balanced against each other. Neither should be allowed
Page 28 of 35
// 29 //
to eclipse the other. For the above reason, we hold that for the
purpose of applying the rule of 50% a year should be taken as the
unit and not the entire strength of the cadre, service or the unit as
the case may be.”
The facts narrated above would indicate is that the situation in
the present case is almost as it was depicted by this Court in the
case of Indra Sawhney (supra).
We, therefore, reiterate that it is necessary for the department to
identify year-wise vacancies for the cadre. It is also necessary to
fill up the posts speedily in order to avoid certain candidates
being rendered ineligible as they may have become overage. It is
for this reason that Section 3 has placed importance on the year
of recruitment as also on the process of selection. In our opinion,
the authorities have been rather casual in their approach in
implementing the reservation policy, in letter and spirit. We are,
however, conscious of the fact that the 367 posts lying vacant for
a number of years are meant only for the reserved categories.
They have been calculated on the basis of the percentages
reserved for various categories. In segregation of the aforesaid
posts, none of the unreserved categories would be deprived of any
posts which ought legitimately to have fallen to their share.”
5.3. Reliance was also placed to a decision of the Hon’ble Apex Court
in the case of State of Tamil Nadu & Ors. Vs. K. Shobana & Ors.
(2021) 4 SCC 686. Hon’ble Apex Court in Para 22, 25, 26 & 27 of the
said judgment has held as follows:-
“22. First, we would like to turn to the judgment [K.
Shobana v. State of T.N., 2020 SCC OnLine Mad 9800] of
the learned Single Judge which, in our view, is absolutely
lucid and clear to the controversy and the conclusion. The
Page 29 of 35
// 30 //learned Single Judge set forth the controversy in the first
paragraph itself i.e. whether the candidates who secured
high marks should have been fitted in the general turn but
have been fitted in MBC/DNC quota for the last year,
which in turn has deprived certain candidates of selection.
It has been rightly noted that the entire confusion has
arisen due to the wrong reading of provisions of Section
27 of the Act, which provides for reservation for
appointment. Section 27(f) merely states that if the
required number of candidates belonging to the
community which fall under reservation are not available,
then, the vacancies, for which selection could not be made
in the current year, should be treated as backlog
vacancies. In the subsequent recruitment, the backlog
vacancies and the current vacancies for the particular
community must be separately announced, and the direct
recruitment must first accommodate the backlog vacancies
and thereafter only, the current vacancies have to be
accommodated. The provision had been read by the
appellants as if the backlog vacancies must be filled in by
MBC/DNC category candidates, irrespective of the merit
of the candidate or the rank secured by him/her. The
highest mark that was secured was 109 and, up to 90
marks, the candidates were fitted in general turn and thus
those candidates will have to be selected under the
general turn, irrespective of their community. It is these
candidates who had been fitted in the backlog vacancy
which has caused the problem.
xxx xxx xxx
25. It has been rightly pointed out by the learned
counsel for the respondents that the issue arising from
seniority of filling the backlog vacancies first was not even
urged in the courts below and was sought to be raised for
the first time before this Court, and elaborately at that,
which plea finally fizzled out, as it was conceded that
there is no factual basis for the same.
Xxx xxx xxx
26. There can be no doubt about the proposition that if
a word is used in a statute, it cannot be made otiose as
held in Hardeep Singh [Hardeep Singh v. State of Punjab,
(2014) 3 SCC 92, paras 42 to 45 : (2014) 2 SCC (Cri) 86]
. However, that is not the factual scenario in this case. The
question arises as to at which stage would Section 27 of
the Act operate, and where in the list, the application of
Page 30 of 35
// 31 //the “first” principle would apply. Section 27 deals with
the reservation. It has nothing to do with the general
candidates list/General Turn vacancies. Such of the
candidates who have made it on their own merit albeit,
from reserved category, have not sought the benefit of the
reservation. Thus, Section 27 of the Act would have
nothing to do up to that point. Section 27 would apply only
when the reservation principle begins, which is after
filling up of the seats on merit. Thus, the word “first”
would apply at that stage i.e. the backlog vacancies have
to be filled in first and the current vacancies to be filled in
thereafter. At the stage when the general category seats
are being filled, there is thus no question of any carry
forward or current vacancies for reserved category
arising at all.
27. We may also note that the manner of filling up the
seats has been well enunciated in the judgment in K.R.
Shanthi case [K.R. Shanthi v. State of T.N., 2012 SCC
OnLine Mad 5451 : (2012) 7 MLJ 241 paras 14, 18 and
19 : SCC OnLine Mad paras 14 & 18-23, incidentally
authored by S. Nagamuthu, J., as he then was, though of
course the principle of promissory estoppel cannot apply
while he raises his contentions!] by the Madras High
Court itself and appears to have been consistently
followed. May be the peculiarity of the situation arising in
Chemistry subject (which is in question) gives rise to this
problem in the current year and such a problem had not
apparently arisen earlier. In fact, there is no manner of
doubt after the latest judgment of this Court in Saurav
Yadav case [Saurav Yadav v. State of U.P., (2021) 4 SCC
542] which again refers to the steps which have to be
taken to fill in those vacancies. The steps are clear in their
terms : in the given facts of the case, application of those
principles or steps would imply:
(a) the general merit list to be first filled in;
(b) the backlog vacancies of the particular reserved
category to be thereafter filled in “first”; and
(c) the remaining reserved vacancies for the current
year to be filled thereafter.”
Page 31 of 35
// 32 //
5.4. Reliance was also placed to a decision of the Hon’ble Apex Court
in the case of Jarnail Singh & Ors. Vs. Lachhmi Narain Gupta &
Ors. (Civil Appeal No. 629 of 2022 & batch) disposed of on
28.01.2022. Hon’ble Apex Court in Para 7, 27, 35 & 41 has held as
follows:
“7. The validity of the above amendments made to Article
16 (4) was considered by this Court in M. Nagaraj & Ors.
v. Union of India & Ors. 3 . The key issue that was
identified and decided in M. Nagaraj (supra) is whether any
constitutional limitation mentioned in Article 16(4) and
Article 335 stood obliterated by the constitutional
amendments resulting in Articles 16(4-A) and 16(4-B). This
Court upheld the constitutional amendments. The
amendments were held to be enabling provisions. This
Court observed that the State is not bound to make
reservation for SCs and STs in matters of promotion.
However, if it wishes to exercise its discretion, the State has
to collect quantifiable data showing the backwardness of
the class and inadequacy of representation of that class in
public employment, in addition to compliance with Article
335 of the Constitution of India.
xxx xxx xxx
27. In R.K. Sabharwal (supra), this Court held that the right
to be considered for appointment can only be claimed in
respect of a post in a cadre and that the concept of
‘vacancy’ has no relevance in operating the percentage of
reservation. It was further held that the cadre strength is
always measured by the number of posts comprising the
cadre.
xxx xxx xxx
. …35…. In Orissa Cement Ltd. v. State of Orissa & Ors. 26
, this Court observed that relief can be granted, moulded orPage 32 of 35
// 33 //restricted in a manner most appropriate to the situation
before it in such a way as to advance the interests of justice.
xxx xxx xxx
…41…. It is a well-settled proposition that only the ratio
decidendi can act as the binding or authoritative precedent.
Reliance placed on mere general observations or casual
expressions of the Court, is not of much avail.”
6. Having heard learned counsel appearing for the Parties and
considering the submission made, this Court finds that the
Commission while issuing the impugned advertisement under
Annexure-15, has indicated the vacancy for UR category candidates at
411 and that of reserved category candidates belonging to SEBC at
736, SC at 920 and ST at 2481, in total 5248 posts.
6.1. Even though in the counter affidavit so filed by the State as well
as by the Commission, it has been indicated that the post advertised
for reserved category candidates includes the backlog vacancies, but
in view of the provisions contained under Article 16(4-B) of the
Constitution of India and the decision in the case of Sangam Nath
Pandey as cited (supra), such backlog vacancies should have been
segregated and the current vacancies available for such reserved
category candidates should have been indicated in the advertisement,
as well as in the requisition so made by the Department on
12.02.2025. But admittedly, the same has not been followed in terms
Page 33 of 35
// 34 //
of the provisions contained under Article 16(4-B) of the Constitution
of India and the decision in the case of Sangam Nath Pandey cited
(supra).
6.2. Since in the impugned advertisement while advertising 411 posts
for UR category, vacancies for reserved category candidates have
been indicated at 4837 and the same admittedly exceeds the 50%
ceiling, in view of the decision of the Apex Court in the case of Indra
Sawhney, it is the view of this Court such an advertisement could not
have been issued.
6.3. It is also the view of this Court that even though in terms of the
provisions contained under Sec. 6 & 7 of the Act, such backlog
vacancies are required to be de-reserved and filled up by UR category
candidates after carrying forward the vacancies so de-reserved to
subsequent three years of recruitment, but since the posts in question
are base level post, in view of the clarification issued by the
Department on 20.03.2008, and the decision in the case of M. Nagraj
so cited (supra), this Court is not inclined to direct the Department to
de-reserve the backlog vacancies so meant for SC & ST as well as
OBC candidates.
Page 34 of 35
// 35 //
6.4. However, considering the submission made by the learned
Advocate General that State is facing a crunch situation and there is
complete dearth of doctors, this Court relying on the decision in the
case of Sangam Nath Pandey as cited (supra) and the decision in the
case of Jarnail Singh, more particularly Para 35, permits the
Commission to recommend 411 UR category candidates as well as
411 reserved category candidates proportionately to the percentage of
reservation meant for such reserve category candidates. However,
relying on the decision in the case of Sangam Nath Pandey as cited
(supra), this Court permits the Department to fill up the reserved
category candidates from the backlog vacancies, after receipt of the
recommendation from the Commission.
7.The writ petition accordingly stands disposed of with the aforesaid
observation and direction.
Interim order passed earlier stands vacated.
(BIRAJA PRASANNA SATAPATHY)
Judge
Signature Not Verified
Digitally Signed
Orissa High Court, Cuttack
Dated
Signed by: SNEHANJALI the 17th March, 2026/Sneha
PARIDA
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 18-Mar-2026 18:46:05
Page 35 of 35
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