1. This writ application has been filed by the petitioner seeking quashing of the report of the Revenue Divisional Commissioner (Southern Division), Berhampur and the decision of the Syndicate taken in the proceedings of the Syndicate Sub-Committee held on 9th September, 1999 whereby the Syndicate has taken a decision to terminate her services from the post of Lecturer in Physics as illegal, arbitrary and violative of law.
2. Matrix of the case is that the petitioner was appointed as Lecturer in Physics on selection by the State Selection Board and was posted in Banki College, Banki vide office order dated 29.9.1987 (Annexure-1) of the Director of Higher Education, Orissa, Bhubaneswar. She continued to serve as Lecturer in the said College since thereafter and her appointment was approved on regular basis vide office order dated 29.1.1988 (Annexure-2). An advertisement was published by the Berhampur University vide notification dated 26.10.1994 (Annexure-3) thereby inviting applications for various teaching posts in several Departments including 3 posts of Lecturer in Physics; one each for unreserved (hereinafter referred to as 'UR'), Scheduled Tribe (hereinafter referred to as 'ST') and Socially & Educationally Backward Classes (hereinafter referred to as 'SEBC'). The petitioner was selected and consequently appointed as Lecturer in Physics against the vacancy advertised for SEBC category, to which she belonged, vide letter dated 20.5.1995 (Annexure-5) in the Post Graduate Department of Physics, Berhampur University. She was placed in the Senior Scale of pay with effect from 10.6.1995 vide order dated 19.9.1997 (Annexure-6). She was confirmed as a Lecturer in P.G. Department of the University from 9.6.1997 vide office order dated 26.9.1997 (Annexure-7). Petitioner received a memorandum of charges based on vide letter dated 28.9.1999 (Annexure-8) from the Registrar of the University requiring her to submit her explanation within thirty days on receipt of the same. Aggrieved by the said letter dated 28.9.1999 (Annexure-8), the petitioner has preferred this writ petition alleging that the decision taken by the Syndicate of the University holding that the appointment of the petitioner was in violation of the provision of the Orissa Reservation of Vacancies in Posts and Services (For Scheduled Castes and Scheduled Tribes) Act, 1975 (hereinafter referred to as 'the Act').
3. The respondents have contested the writ petition alleging that neither the decision of the Revenue Divisional Commissioner (S.D.), Berhampur nor the decision of the Syndicate recommending termination of the services of the petitioner, is illegal. It is also averred that neither the Syndicate nor its Sub Committee resolved not to interfere in the appointments made against the SEBC vacancies and that the writ has no merits and is liable to be dismissed.
4. Mr. Dhal, learned counsel for the petitioner has assailed the action of the opposite parties on the following grounds : (a) The action of the opposite parties is contrary to and in violation of the provisions of law contained in the Act; (b) The opposite parties in the advertisement issued on 26.10.1994 had invited applications for one vacancy for the post of Lecturer in Physics for SEBC category and therefore, her selection and appointment against the said vacancy is in accordance with law; (c) The action and decision of the opposite parties is depriving the petitioner of her legal rights to continue as a Lecturer in Physics, Berhampur University for which she was appointed after being selected in due process of selection against the vacancy of SEBC category as she belongs to the said category;
5. It is further submitted by the learned counsel for the petitioner that the carry forward vacancy of the SC candidates could not have been advertised by the opposite parties as it would have been in violation of Section 7 of the Act, according to which not more than 50% of the vacancies of the year including the carry forward vacancies of the SC & ST candidates can be filled in a particular year for which appointments are made. If that was so done, it would mean 100% vacancies going to the reserved category. He has emphasized that the appointment of the petitioner after selection as an SEBC candidate is in accordance with the Rules and provisions of law and the act of the opposite parties terminating her services for no fault of her, is violative of her fundamental rights, is illegal and against the principle of law and natural justice.
6. Mr. Misra, learned counsel appearing for the respondents has submitted that action was taken and charges framed against appointment of the petitioner on the basis of an order dated 17.8.1999 passed by the Chancellor directing the University to frame charges against all persons so appointed and to take suitable disciplinary, administrative and remedial measures. The petitioner has failed to submit her explanation within thirty days as directed, instead she has filed this writ application. He has further submitted that the Syndicate has accepted the report of the Syndicate Sub-Committee on 28.9.1999 so far as it relates to the petitioner and the said decision was not a mere formality but was based on facts and records.
7. The admitted facts are : (a) An advertisement was issued by the University on 26.10.1994 inviting applications for filling up of various posts of teaching staff. At sl.no.7 thereof, 3 vacancies for the Physics Department were advertised; one for UR; one for ST and one for SEBC category; (b) Petitioner applied for her selection as Lecturer in Physics against SEBC vacancy, as she fell in the said category; (c) Her papers were found in order and was successful in the interview and was accordingly appointed as a Lecturer in Physics against SEBC vacancy vide letter dated 20.5.1995. She was granted Senior Scale of Pay as Lecturer in Physics vide letter dated 19.9.1997 with effect from 10.6.1995 and was confirmed as Lecturer in Physics with effect from 9.6.1997. (d) Three charges were framed on behest of the Chancellor, Berhampur University by the Registrar against the petitioner and she was asked to submit her explanation within thirty days. The Syndicate of the University in its proceedings held on 9th September, 1993 did not accept the findings of the R.D.C. (S.D.), Berhampur that favouritism had been shown to the petitioner in the process of selection as it did not find any factual error or descenting note and the decision of the Members of the Selection Committee was found unanimous. (e) One of the charges against the petitioner is that there were two backlog vacancies; one for ST and another for SC candidates. Therefore, categories status of three vacancies which arose in the year 1994 should have been SC, ST & UR and, therefore, advertisement was wrong as no SC post was advertised and accordingly appointment letter issued to her against SEBC candidate, was illegal. Since the Sub-Committee of the Syndicate recommended termination of the services of the petitioner taking into consideration the backlog vacancies; one for SC and another for ST after following the principles of natural justice and prescribed procedure, it directed that backlog vacancy for SC & another for ST, be advertised and appointments made.
8. In view of the aforesaid admitted facts, the controversy in this writ petition has narrowed down and the only issue required to be resolved is, whether the appointment of the petitioner against SEBC vacancy as advertised, is illegal and if the action of the Syndicate Sub-Committee and of the Syndicate accepting the report of the Sub-Committee, is sustainable or not.
9. Section 2 of the Act prescribes reservation for the Scheduled Castes and Scheduled Tribes as specified under Articles 341 & 342 of the Constitution of India respectively. Under Section 5 of the Act the State Government has the power to prescribe model rosters indicating the number of vacancies to be reserved for the Scheduled Castes and Scheduled Tribes and the number of vacancies to be left unreserved. The appointing authorities are required to maintain rosters in the prescribed form. In view of Section 6 of the Act reserved vacancies in appointments are inter- changeable between SC and ST in the event of non- availability of candidates from the respective communities.
10. Relevant for the present controversy, is Section 7 of the Act. So far as relevant, it reads : "7. 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" "
11. Thus it is clear that if in any recruitment year, the number of candidates either from the SC or ST is less than the number of vacancies reserved even after exchange of reservation between the two, the remaining vacancies can be filled up by general candidates after dereservation of the vacancies in accordance with the prescribed procedure and the vacancies so dereserved are to be carried forward to subsequent three years of recruitment. Proviso to the section makes it clear that in the year 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 madeand the excess over fifty per cent of the reserved vacancies have to be carried forward to subsequent years of recruitment. At the time when the Act was enacted, SEBC category was not there. A decision was taken by Harijan Welfare Department of the Government on 21.4.1994 to reserve vacancies in the Civil Posts and Services under the State for the SEBC in initial/direct recruitment subject to exclusion of "Creamy layers". Accordingly, a new 80 points model roster was prepared indicating the vacancies reserved for SEBC including Women. As per this roster vacancies at point 6, 14, 24, 32, 40, 50, 56, 64 & 74 were to be filled in by a candidate belonging to SEBC category including Women candidates. This roster came into operation with effect from 10.9.1993. The two backlog vacancies of SC & ST categories were lying for quite some time. As per the counter-affidavit of the opposite parties, the Act was implemented by the University in the year 1982 for the first time and according to the roster, the Ist point had been filled up by UR which was filled in by another UR candidate for the recruitment made in the year 1984. There was no recruitment in the years 1985 & 1986. In the year 1987 against 3rd and 4th roster points belonging to SC and UR, candidates from UR were appointed. There was no recruitment in the years 1988 to 1993. This resulted into two reserved vacancies; one for SC and one for ST remaining unfilled.
12. When the advertisement was published on 26.10.1994, initial 80 point model roster had been modified in view of the change of percentage of reservation in respect of SC & ST candidates as per 1991 Census Report and inclusion of SEBC in the list of categories for whom the vacancies were reserved. SEBC has been given 11.25% reservation of the vacancies in Civil Posts and Services. The advertisement issued on 26.10.1994 indicated one post for UR, another for ST and one post for SEBC in accordance with the roster point. As per the new roster effective from 10.9.1993, point 5 was to go to UR, point 6 to SEBC and point 7 to UR. The backlog of ST category was made up by the University by advertising one post for ST category against one UR. Had the University brought forward backlog of SC vacancy, there would have been 100% reservation, which would have been in violation of Section 7 of the Act. University was entitled to fill in the backlog by carrying forward the vacancies together with the normal reserved vacancies not exceeding 50% of the vacancies of the year in which recruitment was made and excess, if any, had to be carried forward to the subsequent recruitment years. It is pertinent to mention here that the University did not get any successful candidate against ST vacancy for appointment as Lecturer in Physics.
13. Under these circumstances, after induction of SEBC category, in reservation of posts, University could not have been ignored to advertise a vacancy for SEBC category and appoint a successful candidate against the said post. Had it been done so, it would have been in violation of the principle of natural justice, the decision of the Government and the provisions contained in the Act. As per the roster, point 6 had to be filled in by SEBC candidate and, therefore, the University was right in advertising a vacancy to be filled in by SEBC candidate.
14. Consequently, we find that the advertisement dated 26.10.1994 published by the University inviting applications for appointment of teaching staff in various Departments including the three vacancies in Physics Department; one for SC, one for UR and one for SEBC, is legal, valid in consonance with the Government Resolution No. 25455/TW dated 10.9.93, Resolution No. OBC-18/94 - 1145/HW, Bhubaneswar and the provisions contained in the Act. The report of the Revenue Divisional Commissioner (S.D.), Berhampur recommending action against the petitioner and that of the Syndicate Sub-Committee held on 9th September 1999 as accepted by the Syndicate on 23.9.1999, is arbitrary, illegal being in violation of the provisions of the Act and against principles of natural justice.
15. The writ petition is accordingly allowed. The decision of the Revenue Divisional Commissioner (S.D.), Berhampur and the decision of the Syndicate Sub- Committee dated 9.9.1999 and of the Syndicate dated 23.9.1999 accepting the report of the Syndicate Sub-Committee, so far as it relates to the petitioner, being illegal, arbitrary and ultra vires, are hereby quashed. However, there are no order as to costs.