IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) Nos. 11103, 11325, 11704, & 15158 of 2024

W.P.(C) No. 11103 of 2024

In the matter of an application under Articles 226 & 227 of the

Constitution of India.

………………

Dr. Durgeshi Baral …. Petitioner

-versus-

State of Odisha & Ors. …. Opposite Parties

For Petitioner : Mr. L.P. Dwivedy, Advocate

For Opp. Parties : Mr. C.K. Pradhan,

Addl. Govt. Advocate

Mr. A. Behera, Advocate

(Opp. Party No. 2)

PRESENT:

THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY

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Date of Hearing: 06.03.2026 & Date of Judgment:22.05.2026

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Biraja Prasanna Satapathy, J.

Since the issue involved in the present batch of writ

petitions relates to selection and appointment to the post of Dental

Surgeon in Group-‘A’ (Jr) of the Odisha Medical Service (Dental)

pursuant to the advertisement issued by the Odisha Public Service

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Commission (in short Commission) vide Advertisement No. 15 of

2017-18, all the writ petitions were heard analogously and disposed of

by the present common order.

2. While W.P.(C) No. 11103 of 2024, 11325 of 2024 and 11704 of

2024 have been filed challenging order dtd.30.03.2024, wherein claim

of the Petitioners to get the benefit of appointment against the

available vacancies in the cadre of Dental Surgeon in Group-‘A’

(Junior) of the Odisha Medical Service (Dental) Cadre of the Health &

Family Welfare Department has been rejected, W.P.(C) No. 15158 of

2024 has been filed challenging order dtd.06.05.2024 so passed by the

Commission in rejecting the case of the Petitioner to get the benefit of

appointment as against the post in question.

3. It is the case of the Petitioners that an advertisement was issued by

the Commission vide Advertisement No. 15/2017-18 inviting

applications to fill up 198 posts of Dental Surgeon in Group-A

(Junior) of the aforesaid cadre. In the said advertisement, when no

reservation was provided for candidates belonging to SEBC category,

the matter was carried to the Tribunal in O.A. No. 1658(C) of 2018.

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3.1 The Tribunal vide order dtd.11.03.2019, when directed to take a

decision on the claim of the Petitioners in W.P.(C) No. 11103 of 2024

with regard to recommendation for their appointment as against the

post in question, the same was rejected vide order dtd.17.04.2019.

Similarly, Petitioner in W.P.(C) No. 11704 of 2024 had also

approached the Tribunal challenging the non-provision of any

reservation for candidates belonging to SEBC category in O.A. No.

1616(C) of 2018.

3.2. The Petitioners in W.P.(C) No. 11325 of 2024 were also before

the Tribunal challenging the action of the Commission in not

providing any reservation for SEBC category candidates in O.A. No.

913(C) of 2018. While claim of the Petitioner in W.P.(C) No. 11103

of 2024 was rejected pursuant to the order passed by the Tribunal on

11.03.2019 in O.A. No. 1658(C) of 2018, but the other two (2)

Original Applications filed by the Petitioners in W.P.(C) No. 11704 &

11325 of 2024 remained pending before the Tribunal and

subsequently transferred to this Court due to abolition of the Tribunal.

3.3. It is contended that this Court vide order dtd.18.01.2024 while

disposing W.P.C.(OAC) No. Nos. 1616 of 2018 and 913 of 2018

along with W.P.C.(OAC) No. 1229 of 2019, so filed by the Petitioner

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in W.P.(C) No. 11103 of 2024 challenging order dtd.17.04.2019,

permitted the Petitioners therein to move the Commission for

consideration of their claim to get the benefit of appointment as

against the available vacancies. Such a direction was also issued,

considering the submission made that vide notification dtd.11.07.2023

similarly situated candidate who participated in the selection process

as SEBC category candidate, was provided with the appointment

against the prospective vacancies pursuant to the order passed by this

Court.

3.4. Learned counsel appearing for the Petitioners contended that

without proper appreciation of the claim of the Petitioners and the fact

that one Dr. Gargi Mohanty got the benefit of appointment vide

notification dtd.11.07.2023, even though she had made her application

as a SEBC category candidate, pursuant to the advertisement in

question, such claim of the Petitioners was rejected vide the impugned

order dtd.30.03.2024.

3.5. Similarly, claim of the Petitioner in W.P.(C) No. 15158 of 2024

was rejected vide order dtd.06.05.2024 pursuant to the order passed by

this Court in W.P.(C) No. 8496 of 2023 on 18.01.2024. The said writ

petition was disposed of vide order dtd.18.01.2024 taking into account

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the submission made that one such candidate namely Dr. Gargi

Mohanty even though participated in the selection process by making

her application as a SEBC category candidate, but she was provided

with the appointment against the prospective vacancy vide notification

dtd.11.07.2023.

3.6. It is contended by the learned counsels appearing for the Parties

that since in the advertisement in question no reservation was

provided in respect of the candidates belonging to SEBC category, the

very initiation of the selection process pursuant to the advertisement

stands vitiated.

3.7. It is also contended that even though such action of the

Commission was challenged before the Tribunal by filing different

Original Applications and direction was issued to consider the case of

the Petitioners, but without proper appreciation of the claim, the same

was rejected initially in the case of Dr. Durgeshi Baral vide order

dtd.17.04.2019 and in respect of the Petitioners in all the writ

petitions, save and except W.P.(C) No. 15158 of 2024 vide order

dtd.30.03.2024.

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3.8. It is contended that in terms of the reservation principle followed

in the State, 11.25% of the posts should have been reserved for SEBC

category candidates and accordingly Petitioners would have been

entitled to get the benefit of appointment as against such SEBC

vacancies. It is also contended that this Court vide an interim order

passed on 29.04.2025 in each of the cases, has directed to keep reserve

4 (four) nos. of posts of Dental Surgeon belonging to SEBC category,

when requisition was made to fill up 9 posts of Dental Surgeon by the

Govt. in the year 2025. It is contended that such interim order is

continuing as on date.

3.9. However, it is contended that since because of the wrong

committed by the Department-Opp. Party No. 1, Petitioners were

deprived to participate in the selection process pursuant to the

Advertisement No. 15/2017-18 as candidates belonging to SEBC

category, Petitioners are eligible and entitled to get the benefit of

appointment, taking into account the interim order passed by this

Court on 29.04.2025 and the order passed by this Court on 18.01.2024

so available in all the four (4) writ petitions.

4. Mr. A. Behera, learned counsel appearing for the Commission on

the other hand made his submission basing on the stand taken in the

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counter affidavit so filed. It is contended that the advertisement in

question was issued basing on the requisition made by the Govt. In the

said requisition, since no reservation was reflected for candidates

belonging to SEBC category, the advertisement was issued to fill up

198 candidates belonging to UR, SC & ST category. Since no vacancy

was provided for SEBC category candidates in the advertisement, the

applications made by the Petitioners in all the four (4) writ petitions

while being entertained, Petitioners were allowed to participate as UR

category candidates. Since Petitioners could not qualify the

recruitment process, taking into account the cut-off mark fixed in

respect of UR category candidates, the select list was published on

09.08.2018.

4.1. It is also contended that the advertisement was issued taking into

account the letter issued by the Govt.-Opp. Party No. 1 on 18.01.2018,

wherein it was indicated that as against the cadre of Dental Surgeon

though 48 posts are reserved for SEBC category, but since 50 persons

were there already in the cadre, which is more than the prescribed

11.25%, no vacancies were advertised in respect of SEBC category

candidates.

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4.2. It is also contended that reservation being post based and not

vacancy based, in view of the decision of the Hon’ble Apex Court in

the case of R.K. Sabharwal Vs. State of Punjab reported in (1995) 2

SCC 745, Petitioners are not eligible and entitled to get the benefit of

the relief as prayed for.

4.3. It is also contended that since Petitioners without any objection

participated in the selection process and challenged the same after

being declared unsuccessful with publication of the result on

09.08.2018, in view of the decision of the Hon’ble Apex Court in the

case of Ashok Kumar & Anr. vs. State of Bihar & Ors., (2017) 4

SCC 357 and Anupam Singh vs. State of Uttar Pradesh reported in

(2020) 2 SCC 173, Petitioners cannot challenge the selection process

any further.

4.4. Hon’ble Apex Court in Para 4 & 10 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

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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. The prescribed percentage cannot

be varied or changed simply because some of the members of

the Backward Class have already been appointed/promoted

against the general seats. As mentioned above the roster point

which is reserved for a Backward Class has to be filled by way

of appointment/promotion of the member of the said class. No

general category candidate can be appointed against a slot in

the roster which is reserved for the Backward Class. The fact

that considerable number of members of a Backward Class

have been appointed/promoted against general seats in the

State Services may be a relevant factor for the State

Government to review the question of continuing reservation

for the said class but so long as the instructions/rules

providing certain percentage of reservations for the Backward

Classes are operative the same have to be followed. Despite

any number of appointees/promotees belonging to the

Backward Classes against the general category posts the

given percentage has to be provided in addition. We,

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therefore, see no force in the first contention raised by the

learned counsel and reject the same.

xxx xxx xxx

10. We may examine the likely result if the roster is

permitted to operate in respect of the vacancies arising after the

total posts in a cadre are filled. In a 100-point roster, 14 posts

at various roster points are filled from amongst the Scheduled

Caste/Scheduled Tribe candidates, 2 posts are filled from

amongst the Backward Classes and the remaining 84 posts are

filled from amongst the general category. Suppose all the posts

in a cadre consisting of 100 posts are filled in accordance with

the roster by 31-12-1994. Thereafter in the year 1995, 25

general category persons (out of the 84) retire. Again in the

year 1996, 25 more persons belonging to the general category

retire. The position which would emerge would be that the

Scheduled Castes and Backward Classes would claim 16%

share out of the 50 vacancies. If 8 vacancies are given to them

then in the cadre of 100 posts the reserve categories would be

holding 24 posts thereby increasing the reservation from 16% to

24%. On the contrary if the roster is permitted to operate till the

total posts in a cadre are filled and thereafter the vacancies

falling in the cadre are to be filled by the same category of

persons whose retirement etc. caused the vacancies then the

balance between the reserve category and the general category

shall always be maintained. We make it clear that in the event of

non-availability of a reserve candidate at the roster point it

would be open to the State Government to carry forward the

point in a just and fair manner.”

4.5. Hon’ble Apex Court in Para 12 to 21 of the judgment in the case

of Ashok Kumar has held as follows:-

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“12. The appellants participated in the fresh process of

selection. If the appellants were aggrieved by the decision to

hold a fresh process, they did not espouse their remedy. Instead,

they participated in the fresh process of selection and it was

only upon being unsuccessful that they challenged the result in

the writ petition. This was clearly not open to the appellants.

The principle of estoppel would operate.

13. The law on the subject has been crystallised in several

decisions of this Court. In Chandra Prakash

Tiwari v. Shakuntala Shukla [Chandra Prakash

Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127 : 2002 SCC

(L&S) 830] , this Court laid down the principle that when a

candidate appears at an examination without objection and is

subsequently found to be not successful, a challenge to the

process is precluded. The question of entertaining a petition

challenging an examination would not arise where a candidate

has appeared and participated. He or she cannot subsequently

turn around and contend that the process was unfair or that

there was a lacuna therein, merely because the result is not

palatable. In Union of India v. S. Vinodh Kumar [Union of

India v. S. Vinodh Kumar, (2007) 8 SCC 100 : (2007) 2 SCC

(L&S) 792] , this Court held that : (SCC p. 107, para 18)

“18. It is also well settled that those candidates who had

taken part in the selection process knowing fully well the

procedure laid down therein were not entitled to question the

same. (See Munindra Kumar v. Rajiv Govil [Munindra

Kumar v. Rajiv Govil, (1991) 3 SCC 368 : 1991 SCC (L&S)

1052] and Rashmi Mishra v. M.P. Public Service

Commission [Rashmi Mishra v. M.P. Public Service

Commission, (2006) 12 SCC 724 : (2007) 2 SCC (L&S) 345] .)”

14. The same view was reiterated in Amlan Jyoti

Borooah [Amlan Jyoti Borooah v. State of Assam, (2009) 3 SCC

227 : (2009) 1 SCC (L&S) 627] wherein it was held to be well

settled that the candidates who have taken part in a selection

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process knowing fully well the procedure laid down therein are

not entitled to question it upon being declared to be

unsuccessful.

15. In Manish Kumar Shahi v. State of Bihar [Manish

Kumar Shahi v. State of Bihar, (2010) 12 SCC 576 : (2011) 1

SCC (L&S) 256] , the same principle was reiterated in the

following observations : (SCC p. 584, para 16)

“16. We also agree with the High Court [Manish Kumar

Shahi v. State of Bihar, 2008 SCC OnLine Pat 321 : (2009) 4

SLR 272] that after having taken part in the process of selection

knowing fully well that more than 19% marks have been

earmarked for viva voce test, the petitioner is not entitled to

challenge the criteria or process of selection. Surely, if the

petitioner's name had appeared in the merit list, he would not

have even dreamed of challenging the selection. The petitioner

invoked jurisdiction of the High Court under Article 226 of the

Constitution of India only after he found that his name does not

figure in the merit list prepared by the Commission. This

conduct of the petitioner clearly disentitles him from questioning

the selection and the High Court did not commit any error by

refusing to entertain the writ petition. Reference in this

connection may be made to the judgments in Madan Lal v. State

of J&K [Madan Lal v. State of J&K, (1995) 3 SCC 486 : 1995

SCC (L&S) 712] , Marripati Nagaraja v. State of

A.P. [Marripati Nagaraja v. State of A.P., (2007) 11 SCC 522 :

(2008) 1 SCC (L&S) 68] , Dhananjay Malik v. State of

Uttaranchal [Dhananjay Malik v. State of Uttaranchal, (2008) 4

SCC 171 : (2008) 1 SCC (L&S) 1005 : (2008) 3 PLJR 271]

, Amlan Jyoti Borooah v. State of Assam [Amlan Jyoti

Borooah v. State of Assam, (2009) 3 SCC 227 : (2009) 1 SCC

(L&S) 627] and K.A. Nagamani v. Indian Airlines [K.A.

Nagamani v. Indian Airlines, (2009) 5 SCC 515 : (2009) 2 SCC

(L&S) 57] .”

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16. In Vijendra Kumar Verma v. Public Service

Commission [Vijendra Kumar Verma v. Public Service

Commission, (2011) 1 SCC 150 : (2011) 1 SCC (L&S) 21] ,

candidates who had participated in the selection process were

aware that they were required to possess certain specific

qualifications in computer operations. The appellants had

appeared in the selection process and after participating in the

interview sought to challenge the selection process as being

without jurisdiction. This was held to be impermissible.

17. In Ramesh Chandra Shah v. Anil Joshi [Ramesh

Chandra Shah v. Anil Joshi, (2013) 11 SCC 309 : (2011) 3 SCC

(L&S) 129] , candidates who were competing for the post of

Physiotherapist in the State of Uttarakhand participated in a

written examination held in pursuance of an advertisement. This

Court held that if they had cleared the test, the respondents

would not have raised any objection to the selection process or

to the methodology adopted. Having taken a chance of selection,

it was held that the respondents were disentitled to seek relief

under Article 226 and would be deemed to have waived their

right to challenge the advertisement or the procedure of

selection. This Court held that : (SCC p. 318, para 18)

“18. It is settled law that a person who consciously takes

part in the process of selection cannot, thereafter, turn around

and question the method of selection and its outcome.”

18. In Chandigarh Admn. v. Jasmine Kaur [Chandigarh

Admn. v. Jasmine Kaur, (2014) 10 SCC 521 : 6 SCEC 745] , it

was held that a candidate who takes a calculated risk or chance

by subjecting himself or herself to the selection process cannot

turn around and complain that the process of selection was

unfair after knowing of his or her non-selection. In Pradeep

Kumar Rai v. Dinesh Kumar Pandey [Pradeep Kumar

Rai v. Dinesh Kumar Pandey, (2015) 11 SCC 493 : (2015) 3

SCC (L&S) 274] , this Court held that : (SCC p. 500, para 17)

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“17. Moreover, we would concur with the Division Bench on

one more point that the appellants had participated in the

process of interview and not challenged it till the results were

declared. There was a gap of almost four months between the

interview and declaration of result. However, the appellants did

not challenge it at that time. This, it appears that only when the

appellants found themselves to be unsuccessful, they challenged

the interview. This cannot be allowed. The candidates cannot

approbate and reprobate at the same time. Either the candidates

should not have participated in the interview and challenged the

procedure or they should have challenged immediately after the

interviews were conducted.”

This principle has been reiterated in a recent judgment

in Madras Institute of Development Studies v. K.

Sivasubramaniyan [Madras Institute of Development

Studies v. K. Sivasubramaniyan, (2016) 1 SCC 454 : (2016) 1

SCC (L&S) 164 : 7 SCEC 462] .

19. In the present case, regard must be had to the fact that

the appellants were clearly on notice, when the fresh selection

process took place that written examination would carry ninety

marks and the interview, ten marks. The appellants participated

in the selection process. Moreover, two other considerations

weigh in balance. The High Court noted in the impugned

judgment [Anurag Verma v. State of Bihar, 2011 SCC OnLine

Pat 1289.] that the interpretation of Rule 6 was not free from

vagueness. There was, in other words, no glaring or patent

illegality in the process adopted by the High Court. There was

an element of vagueness about whether Rule 6 which dealt with

promotion merely incorporated the requirement of an

examination provided in Rule 5 for direct recruitment to Class

III posts or whether the marks and qualifying marks were also

incorporated. Moreover, no prejudice was established to have

been caused to the appellants by the 90 : 10 allocation.

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20. The decision in Raj Kumar v. Shakti Raj [Raj

Kumar v. Shakti Raj, (1997) 9 SCC 527 : 1997 SCC (L&S)

1029] (which was relied upon by the appellants) involved a case

where the Government was found to have committed glaring

illegalities in the procedure. Hence, it was held that the

principle of estoppel by conduct or acquiescence had no

application. The decision is distinguishable.

21. In this view of the matter, the Division Bench cannot

held to be in error in coming to the conclusion that it was not

open to the appellants after participating in the selection

process to question the result, once they were declared to be

unsuccessful. During the course of the hearing, this Court is

informed that four out of six candidates, who were ultimately

selected, figured both in the first process of selection as well as

in the subsequent selection. One candidate is stated to have

retired.”

4.6. Hon’ble Apex Court in Para 60 of the judgment in the case of

Anupal Singh has held as follows:-

“60. Before the declaration of the result of the written examination on

15-9-2014, the State Government by its Government Order dated 20-8-

2014 revised the requisition thereby revising the number of vacancies in

different categories. The U.P. Public Service Commission issued Office

Memorandum dated 12-10-2014 specifically mentioning the number of

vacancies to be filled up in various categories in accordance with the

requisition sent by the State Government. The said Office Memorandum

dated 12-10-2014 published by the U.P. Public Service Commission

reads as under:

“UPPSC

INTERVIEW PROGRAMME

Month October/November/December, 2014 (24)

OFFICE MEMORANDUM

98 Post : Subordinate Agricultural Service Class

III (Provisional Asstt. Group C) Agricultural

Deptt. U.P.

Reservation

2515 posts — Non-reserved

1882 posts — SC

201 posts — ST

October — 27, 28, 29, 30

November — 05, 07, 10, 11, 12, 13, 14,

15, 17, 18, 19, 20, 21, 22, 25, 26, 27, 28,

29

December — 01, 02, 03, 04, 05, 06, 08,

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2030 posts — OBC

Pay scale Rs 5200-20,200

Grade pay Rs 2400

Advertisement No. A-5/E-1/2013

Last date : 21-11-2013

09, 10, 11, 12, 15, 16, 17, 18, 19, 20, 22,

23, 24, 2014

Before 10.00 a.m.

Dated 12-10-2014.”

It is thus clear that the candidates who appeared in the interview were

well aware about the modification/revision in number of vacancies of

Technical Assistants in different categories. The private

respondents/intervening applicants have appeared in the interview with

their eyes wide open regarding the modified vacancies to be filled up in

various categories of the posts. Having appeared in the interview without

any demur or protest, it is not open to the candidates to challenge the

selection process on the ground that there was modification in the

number of vacancies in different categories and they are estopped by the

principle of estoppel from challenging the same.”

4.7. It is also contended that the decision relied on by the learned

counsel appearing for the Petitioners in the case of Dr. (Major) Meeta

Sahai vs. State of Bihar (2019) 20 SCC 17, is quite distinguishable,

as in the said matter there was no prayer to quash any provision of the

advertisement, rather the question involved in the case of Dr. (Major)

Meeta Sahai, was with regard to interpretation of the provision of the

advertisement.

4.8. With regard to the stand taken by the Petitioners that one Dr.

Gargi Mohanty, even though she made an application to get the

benefit of appointment as SEBC category candidate, but in fact she

was issued with the order of appointment vide notification

dtd.11.07.2023 pursuant to the letter issued by the Govt., it is

contended that Dr. Gargi Mohanty was never appointed as a SEBC

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candidate and in fact she was appointed as an UR category candidate,

pursuant to the order passed by this Court in W.P.(C) No. 2542 of

2018 and further order passed on 22.04.2022 in CONTC No. 1633 of

2022. Pursuant to such order passed by this Court. While preparing a

revised select list of 171 candidates after revision of answer key, Dr.

Gargi Mohanty along with 8 (eight) candidates were found eligible to

get the benefit of selection and appointment as per the report of the

expert committee dt.05.10.2018.

4.9. It is also contended that the aforesaid Dr. Gargi Mohanty never

participated in the selection process as a SEBC category candidate by

availing any age relaxation and she got the benefit against the

prospective vacancy pursuant to the order of this Court vide

notification dtd.11.07.2023. It is accordingly contended that since Dr.

Gargi Mohanty was appointed as a UR category candidate against the

prospective vacancy, the plea taken by the Petitioners that they are

similarly situated as like Dr. Gargi Mohanty cannot be accepted. It is

accordingly contended that since there was no such provision to

entertain the application made by the candidates belonging to SEBC

category and Petitioners participated in the selection process as UR

category candidates, and they having not secured the required cut-off

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mark so fixed for UR category, they are not eligible and entitled to get

the benefit of the appointment in respect of the advertisement issued

vide Advertisement No. 15/2017-18. It is further contended that

Petitioner in W.P.(C) No. 15158 of 2024 though has secured the cut-

off mark so fixed for UR candidate, but she having been allowed age

relaxation to participate in the selection process, her candidature

cannot be considered as against UR vacancy.

4.10. It is however not disputed that pursuant to the interim order

passed by this Court on 29.04.2025, four (4) posts of Dental Surgeon

have been kept reserved.

5. Mr. C.K. Pradhan, learned Addl. Govt. Advocate on the other hand

made his submission basing on the stand taken in the counter affidavit

so filed. It is contended that in the advertisement issued vide

Advertisement No. 15/2017-18, Govt. made the requisition to recruit

198 posts of Dental Surgeon vide letter dtd.18.01.2018. In the said

requisition no post was reserved for SEBC category, because out of

the total sanctioned strength of Dental Surgeon in Group-A (JB) in the

SEBC category, 2 (two) Doctors were more than the sanctioned posts

meant for SEBC. However, it is contended that as against 198 posts so

advertised, the Commission recommended the names of 171

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candidates in different categories for their appointment to the post of

Dental Surgeon. Accordingly, all the 171 recommended candidates

were provided with the orders of appointment.

5.1. It is further contended that while complying the order passed by

this Court in W.P.(C) No. 2542 of 2018, the merit list of Dental

Surgeon was revised and basing on the Expert Committee report

dtd.05.10.2018, Dr. Gargi Mohanty (SEBC (F)) bearing Roll No.

101300 was selected under UR category and recommended for her

appointment vide Department notification dtd.11.07.2023. It is

accordingly contended that since Dr. Gargi Mohanty was

recommended and selected as an UR category candidate, stand taken

by the Petitioner that, she was selected and appointed as SEBC

category candidate, is not acceptable.

5.2. It is further contended that since Petitioners participated in the

selection process as UR category candidate and could not qualify,

their names were rightly not recommended by the Commission.

However, pursuant to the order passed by this Court on different

occasion, claim of the Petitioners though were considered against the

available vacancies, but the Commission since never recommended

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their names after such consideration, there was no occasion to provide

appointment to the Petitioners.

6. To the submission made by the learned counsel appearing for the

Commission as well as learned Addl. Govt. Advocate, learned counsel

appearing for the Petitioners made further submission contending inter

alia that in the requisition made by the Govt. on 18.01.2018, no

reservation was made for SEBC category candidates on the ground

that in the cadre since two posts in excess has already been filled up,

no reservation can be made for SEBC category candidates. However,

it is contended that in the advertisement issued earlier by the

Commission vide Advertisement No. 23 of 2013-14, though 24 posts

were reserved for SEBC category candidates, but 26 SEBC category

candidates were selected under UR Category in response to the said

advertisement in addition to 24 candidates under SEBC category.

6.1. However, with the plea that 50 posts in SEBC category have

already been filled up pursuant to such selection process initiated in

the year 2013-14, no reservation was made for SEBC category

candidates in the requisition made by the Govt. on 18.01.2018 with

issuance of the advertisement by the Commission vide Advertisement

No. 15/2017-18.

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6.2. It is contended that since in terms of the Advertisement issued in

the year 2013, 26 SEBC candidates were selected under UR category,

those posts cannot be treated to have been filled up by SEBC category

candidates as they were selected because of their securing mark more

than UR candidates. It is accordingly contended that because of the

wrong committed by the State-Opp. Party No. 1 in calculating the

filing up of the posts by SEBC category candidates pursuant to the

selection process initiated in the year 2013-14, no reservation was

made for SEBC category candidates in the impugned advertisement of

2017-18. For such fault of the Opp. Party-State, Petitioners cannot be

deprived to get the benefit of selection and appointment as SEBC

category candidates.

6.3. It is contended that taking into account the reservation meant for

SEBC category candidates at 11.25%, 22 posts should have been

reserved for SEBC category candidates. If 22 posts should have been

kept reserved for SEBC category candidates, Petitioners would have

been entitled to get the benefit of appointment as against those

vacancies.

6.4. However, since for the wrong committed by Opp. Party No. 1,

Petitioners have been deprived to get the benefit of appointment as

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SEBC category candidate, the impugned orders passed in all the four

(4) cases are liable for interference of this Court. It is further

contended that since claim of Dr. Gargi Mohanty has been considered

as against the prospective vacancies basing on the letter issued by the

Govt. and consequential notification issued on 11.07.2023, taking into

account the fact that 4 (four) posts have been kept reserved in terms of

the interim order passed by this Court on 29.04.2025, against the

requisition made in the year 2025, Petitioners can very well be

appointed as against those four (4) posts.

6.5. Mr. S.K. Das, learned counsel appearing for the Petitioner in

W.P.(C) No. 15158 of 2024, made further submission contending inter

alia that the Petitioner pursuant to the interim order passed by the

Tribunal was not only allowed to participate in the selection process,

but also as admitted, Petitioner has secured more mark than the cut-off

mark so fixed for UR candidates. It is accordingly contended that

since Petitioner in W.P.(C) No. 15158 of 2024, admittedly has secured

more mark than the cut-off mark fixed in UR category, Petitioner is

eligible and entitled to get the benefit of appointment.

6.6. However, Petitioner’s name was not reflected in the revised merit

list, only on the ground that Petitioner since participated in the

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selection process by availing the benefit of age relaxation being a

SEBC candidate, pursuant to the order passed by the Tribunal, she

cannot get the benefit of appointment as against UR vacancy.

However, it is contended that since no such selection was ever held

for around 4 years prior to issuance of the advertisement in question,

Petitioner be allowed age relaxation, taking into account the fact that

Petitioner is over aged by around 1 year at the time of her making the

application.

6.7. Learned counsel appearing for the Petitioners in other writ

petitions also contended that Petitioners have not secured the cut-off

mark so fixed for UR category candidate. However, since no

reservation was provided to SEBC category candidates, on the ground

that Petitioners have not secured the cut-off mark so fixed for UR

category candidates, their claim cannot be overlooked.

6.8. It is further contended that since the Commission committed a

wrong in not providing reservation in favour of SEBC category

candidates, basing on a wrong requisition made by the Govt., for such

admitted latches on the part of the Govt. as well as the commission,

Petitioners cannot be deprived to get the benefit of appointment. It is

further contended that since Petitioners are prosecuting the lis from

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the year 2018, as per the settled position of law, Petitioners are

eligible to get the benefit of appointment and no such plea can be

taken that some other persons are more suitable than the Petitioners.

7. Having heard learned counsel appearing for the Parties and

considering the submission made, it is found that the dispute arose

with issuance of Advertisement No. 15/2017-18 by the Commission,

when in the advertisement while issuing the same to fill up 198 posts

of Dental Surgeon, no reservation was meant for SEBC category

candidates. As per the reservation principle in vague 11.25% posts is

required to be filled up from amongst eligible candidates belonging to

SEBC category. However, no such reservation was made for SEBC

category candidates, basing on the requisition made by the Govt. in its

letter dtd.18.01.2018, inter alia on the ground that as against the cadre

strength of 48 posts in the rank of Dental Surgeon, already 50

candidates are in the roll.

7.1. However, it is found that all those 50 posts were filled up

pursuant to the earlier advertisement issued by the Commission in the

year 2013. The stand taken by the Petitioners that in the said

recruitment of the year 2013-14, 26 candidates belonging to SEBC

category were selected against UR category, it is the view of this

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Court that those 26 posts could not have been taken to have been filled

up by SEBC category candidates, while calculating the actual strength

of SEBC category candidates at 50 as against the cadre strength of 48.

7.2. In view of the reservation principle so applicable, 11.25% of the

posts is required to be meant for SEBC category candidates.

Therefore, it is the view of this Court that, the very issuance of the

advertisement vide Advertisement No. 15/2017-18 so issued by the

Commission basing on the requisition made by the Govt. vide letter

dtd.18.01.2018 without providing reservation for SEBC category

candidates is not just and proper.

7.3. It is found from the record that Dr. Gargi Mohanty who was

appointed vide notification dtd.11.07.2023 against the prospective

vacancies, pursuant to the order passed by this Court in W.P.(C) No.

2542 of 2018. Though a stand has been taken that she was appointed

as UR (Female) candidate, but considering the submission made by

the Petitioners that she was appointed as a SEBC category candidate,

this Court though passed various orders directing the learned counsel

appearing for the Commission as well as learned Addl. Govt.

Advocate to provide the application made by Dr. Gargi Mohanty

bearing Roll No. 101300 vide order dtd.07.11.2025, 09.12.2025,

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15.01.2026, 29.01.2026, 13.02.2026 in order to verify the status of the

application made by Dr. Gargi Mohanty, but the application so made

by Dr. Gargi Mohanty was never produced. However, it is not

disputed that Dr. Gargi Mohanty got the benefit of appointment,

whether as a SEBC or UR category, as against the prospective

vacancies vide notification dtd.11.07.2023.

7.4. Since this Court has already come to a conclusion that action of

the Govt.-Opp. Party No. 1 in making the requisition dtd.18.01.2018,

without providing reservation for SEBC category candidates to the

extent of 11.25% as not just and proper and taking into account the

fact that Dr. Gargi Mohanty even though made her application as a

SEBC category candidate, but was provided with the appointment

vide notification dtd.11.07.2023 against a prospective vacancy, taking

into account the challenge made by the Petitioners starting from the

year 2018, it is the view of this Court that Petitioners are eligible and

entitled to get the benefit of appointment, as against the posts kept

reserved as against the vacancies of the year 2024-25, vide the interim

order dtd.29.04.2025.

7.5. It is also the view of this Court that since the recruitment process

has not been conducted in accordance with law and admittedly the

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Petitioner in W.P.(C) No. 15158 of 2024 has secured more mark than

the cut-off mark so fixed for UR category candidate, even though by

the time Petitioner while making the application was over aged, but

taking into account the fact that no such recruitment was held for

around 4 years, this Court is of the view that by extending age

relaxation in favour of the Petitioner, her claim be considered.

7.6. Not only that the other Petitioners though have not secured the

required cut-off mark, but taking into account the fact that no such

reservation was provided for SEBC category candidates and as against

the prospective vacancy, basing on a revised select list, which has

been deprecated by this Court, benefit of appointment has been given

in the year 2023, this Court is of the view that the other Petitioners are

also eligible and entitled to get the benefit of appointment.

7.7. Since the recruitment in question has been conducted by the

Commission pursuant to the requisition made by the Govt., which is

not in accordance with law, and against a prospective vacancy, Dr.

Gargi Mohanty has got the benefit of appointment vide notification

dtd.11.07.2023, this Court while disposing all the writ petitions with

quashing of order dtd.30.03.2024 and 06.05.2024 respectively, so

impugned in all the four (4) writ petitions, directs the Commission to

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recommend the names of the Petitioners to the Govt.-Opp. Party No. 1

for their appointment against the 4 (four) posts so kept reserved for

them in terms of the interim order passed by this Court on 29.04.2025.

7.8. This Court directs the Commission to make the recommendation

against such posts kept reserved within a period of three (3) weeks

from the date of receipt of this order. On receipt of such

recommendation, Opp. Party No. 1 shall take appropriate step to

provide appointment to the Petitioners within a period of four (4)

weeks thereafter.

8. All the writ petitions accordingly stand disposed of.

Photo copy of the order be placed in the connected case records.

(BIRAJA PRASANNA SATAPATHY)

Judge

Orissa High Court, Cuttack

Dated the 22

nd

May, 2026/Sneha