Point of law : When the admitted fact remains that Opposite Party No.4 secured more marks than the Petitioner, he is certainly entitled for selection and appointment being more meritorious than the Petitioner.

JUDGMENT :

B.P. Routray, J.

1. Challenging the orders dated 21st August, 2013, 11th September, 2013 and 25th September, 2013 of the learned Odisha Administrative Tribunal in O.A. No.2382(C) of 2012 and the consequential order discharging the Petitioner from service, the present writ petition has been filed.

2. The Petitioner was Respondent No.5 before the Tribunal and present Opposite Party No.4 was the Applicant.

3. The dispute relates to appointment to the post of Constable against posts reserved for Home Guards in Jagatsinghpur district for the recruitment year 2011. On 1st April, 2011 the advertisement was published for recruitment to 86 vacant posts of Constables for Jagatsinghpur district. Both the Petitioner and Opposite Party No.4 were working as Home Guards on the date of advertisement and belong to SEBC category. They applied and participated in the recruitment process. The recruitment to the post of Constables is governed by the Odisha Police Service (Method of Recruitment and Conditions of Service of Constables) order, 2010. 10% of the total vacancies are to be filled up from Home Guards. Upon completion of the selection process, Petitioner secured 43.25 marks and Opposite Party No.4 secured 40.25 marks in total and as such, appointment order was issued in favour of Petitioner on 17th November, 2011 and he joined as a Constable. Opposite Party No.4 challenged the selection of the Petitioner before the OAT by contending that, additional 4 marks given to the Petitioner towards educational achievement is illegal as he is not entitled for the same. State through the Superintendent of Police (SP), Jagatsinghpur conceded to the said contention of Opposite Party No.4 and stated that by mistake excess 4 marks has been given to the Petitioner which is the basis for his securing more marks than Opposite Party No.4 to get the appointment. It was further admitted that in subsequent scrutiny this mistake came to notice of the authorities that 4 marks has been wrongly awarded to the Petitioner in excess and if the same would be deducted, his total marks comes to 39.25. It was also admitted that Opposite Party No.4 secured 40.25 marks. Accordingly, the Tribunal in its order dated 25th September, 2013 directed to recalculate the marks of the Petitioner and in case Opposite Party No.4 is found to have secured more marks than the Petitioner, then to issue appointment order in his favour. Pursuant to said order of the Tribunal, Petitioner was discharged from service with effect from 31st October, 2013 and Opposite Party No.4 was given appointment as Constable. This is the subject matter of challenge in the present writ petition.

4. Mr. Dora, learned Senior Counsel appearing for the Petitioner submitted that 10% of the total vacancy comes to 8.6 which may be rounded up to 9. So, 9 posts of Constables from Home Guards were to be filled up. But in the present case only 6 posts of Constables from Home Guards have been filled up and 3 more posts on this count has been lapsed due to wrong calculation by the authorities. Therefore, even to give appointment to Opposite Party No. 4, the services of Petitioner was not required to be terminated and he can be adjusted in one of those 3 other posts due for Home Guard quota against SEBC vacancy. The affidavits dated 12th August, 2016, 30th August, 2016 and 10th November, 2016 of the SP, Jagatsinghpur are referred to by Mr. Dora in this regard.

5. Mr. Sahoo, learned Additional Government Advocate, without disputing the factual position, submitted that even if 3 more posts are to be counted towards Home Guard quota, still the Petitioner is not entitled to be appointed as no post would fall in that SEBC category in the benefit of the Petitioner to get an appointment.

6. The only order dated 25th September, 2013 amongst three such orders of the tribunal under challenge, is relevant. Other two orders dated 21st August, 2013 and 11th September, 2013 have apparently merged with order dated 25th September, 2013.