S.K. MISHRA, J.

1. An advertisement No.02 of 2019-20 was made by the Odisha Public Service Commission, shortly, herein after “OPSC” on 16th July, 2019 for recruitment to the post of Assistant Agriculture Engineers (Group-B) under Agriculture & Farmers Empowerment Department. The Petitioner, having requisite qualification and being a person with disability, applied for the said post. In total there were nine applicants, including the Petitioner, who applied under the category of persons with disabilities (PwD).

2. Pursuant to the same, on 17.11.2019, out of nine applicants under the PWD category, 7 applicants, including the Petitioner, appeared in the written examination. On 14th January, 2020, list of candidates, who have provisionally qualified in the written examination was published. From the said result, it was found that the ratio of vacancy position and provisionally selected candidates is 1:2, which was usually done. But the said practice was not made applicable in case of the PwD candidates. Only 4 candidates in place of 10 were called for viva voce test. Challenging the said illegal selection, the Petitioner preferred W.P.(C) No.3377 of 2020. In the said Writ Petition, I.A. No.1443 of 2020 was moved with a prayer to permit the Petitioner to appear in the viva voce test.

3. Being directed by this Court, vide Order dated 07.02.2020 passed in I.A. No.1443 of 2020 (arising out of W.P.(C) No.3377 of 2020), the Petitioner was permitted to appear in the viva voce test. The said Order is reproduced below:

“In disposal of the I.A. this Court directs that in the meantime, petitioner may be permitted to appear in the viva voce test involving the case involved herein but the result of his appearance shall not declared and the appearance of the petitioner by the order of this Court will also be dependant on the ultimate outcome of the writ petition.

Issue urgent certified copy of this order on proper application.”

4. Subsequently, the coordinate Bench disposed of I.A. No.3026 of 2020 along with the W.P.(C) No.3377 of 2020, on 26.02.2020 with following orders/observations:

“I.A. No.3026 of 2020

This is an application filed under Chapter-VI, Rule-7 of Orissa High Court Rules for appropriate order.

Heard learned counsel for the petitioner.

For the subsequent development involving in the matter to the fact that petitioner has already been called for attending the interview by the OPSC, no cause of action survives.

For no pendency of litigation, the interim application is disposed of. It is open to the OPSC to declared the result of the candidates accordingly.

W.P.(C) No. 3377 of 2020

Consequently, the writ petition stands disposed of.”

(Emphasis Supplied)

5. Being so directed by the coordinate Bench, the Petitioner was called for viva voce test, which was completed on 02.03.2020. After completion of the viva voce test, the final result was published. Though the Petitioner appeared in the written examination as well as viva voce test, but his result was not declared despite observation in I.A. No.3026 of 2020. However, from the result pertaining to other candidates, it was found that only three candidates have been selected under PwD category though, as per advertisement, 5 seats were reserved for PwD candidates. Hence, the Petitioner was constrained to approach this Court again in form of present Writ Petition.

6. Being noticed, the OPSC has filed the Counter Affidavit taking a stand therein that as per advertisement no.02 of 2019-20 for recruitment to the post of Assistant Agriculture Engineers (Group-B) of State Service, out of 130 (42-W) vacancies, 05 (01-W) vacancies were reserved for PH candidates. Total 7 PH candidates, including the Petitioner, appeared in the written examination for the post of Assistant Agriculture Engineer. As per functional classification of PH candidates, mentioned in the advertisement, 03 candidates, including the Petitioner, who belong to VH category, were not considered for the viva voce test. Thereafter, the candidature of one PH candidate was rejected during the stage of document verification. Lastly, 03 (01-W) PH candidates were recommended for the said post of Assistant Agriculture Engineer as against 05 (01-W) vacancies as advertised, due to non availability of PH candidates.

7. It has further been stated in the Counter Affidavit that as per order dated 07.02.2020 of this Court, in W.P.(C) No.3377 of 2020, the Petitioner was allowed to appear in the viva voce test on 02.03.2020. His result was kept in a sealed cover. After completion of the recruitment process, the final result of the said recruitment was published vide OPSC notice dated 06.03.2020, keeping the result of the Petitioner in sealed cover.

8. During pendency of the present Writ Petition, I.A. No.5773 of 2020 was moved with a prayer to declare the result of the Petitioner. Though the said I.A. was filed long back, no objection was filed by the OPSC opposing the said prayer made in the I.A.

9. Accordingly, vide Order dated 23.02.2023, this Court directed the OPSC to declare the result of the Petitioner and file the same before this Court in form of an affidavit. On being so directed, an affidavit dated 9th March, 2023 was filed by OPSC. Paras 3 & 4 of the said Affidavit are extracted below:

“3. That it is humbly submitted that there was no vacancy advertised for the PWD (VH) candidates and there was no functional classification for the VH sub-Category Persons in the advertisement. The functional classification of PwD candidates for the recruitment was OL, OA, HI, BL, (MNR). The petitioner belongs to the BL (Low Vision) category. So the petitioner was not considered eligible for the post under above category.

4. That, in compliance to the order dt.23.02.2023 of the Hon’ble Court cited supra, the Commission opened the result of the petitioner kept in sealed cover and it is found that the petitioner, Biswajit Panda (Roll No.100110) has secured 78.506 marks in the written examination and 05 marks in the viva voce test & thus the total marks calculated as (78.506+05) = 83.506 marks, which is very less and much below than the cut-off marks of the last UR and PH candidates recommended by the Commission.”

(Emphasis Supplied)

10. In view of such affidavit, this Court again directed to take instruction and file a specific affidavit as to what was the cut-off marks for UR and PH candidates, the last UR and PH candidates secured how much marks and what was the basis to fix such cut-off marks.

11. On being so directed, a further Compliance Affidavit dated 27.03.2023 was filed by the Opposite Party. Paragraph Nos.3 & 4 of the said Affidavit are extracted below:

“3. That, it is humbly submitted that the total marks (Written + Viva marks) secured by the last candidate selected/recommended by the Commission for the post of Assistant Agriculture Engineer, pursuant to the Advt. No.02 of 2019-20 in UR (Male), UR (Female), PH Categories are 149.533 marks, 149.822 marks and 91.476 marks respectively, which is also cut-off marks of the aforesaid categories.

4. That, it is humbly submitted that normally the cut-off marks of different categories of candidates have been arrived based on the marks secured by the last selected candidates for the respective categories, keeping in view of the vacancies advertised in the advertisement.”

(Emphasis Supplied)

12. Relying on the averments made in Paras 3 & 4 of the said Compliance Affidavit, Mr.Pradhan, learned Counsel for the Petitioner submits, though there was an advertisement for 130 posts, out of the same, 5 posts were reserved for PH category and only 3 posts were recommended under the said category due to non availability of the PH candidates. The case of the Petitioner should have been considered by the OPSC, as he secured the 4th position by securing 83.506 marks i.e. just below 91.476 marks secured by the last selected candidate under PH category. His client was eligible to be considered under the PH category in terms of the interim observation by this Court dated 23.02.2023.

13. Mr.Pradhan further submits, said advertisement was very clear and meant for all categories of persons with disabilities. It was further clarified vide the said advertisement that those categories of disabled persons having permanent disability of 40% and more, are eligible to apply for the post and there was no specific mention or bar for other categories of persons having disabilities, including person suffering from blindness or low vision.

14. Though there is no such averment to the said effect in the Counter Affidavit, Mr.Mohanty, learned Senior Counsel for the OPSC, referring to the advertisement at Annexure-1, submits that in the said advertisement it was clarified that the posts reserved for PH (Physical Handicapped) category were meant for handicapped persons like one leg affected (MNR), PD (with suitable aid) categories of disabled persons are suitable for the post of Assistant Agriculture Engineers. PH persons with disability of one leg affected (Right or Left) & Partially Deaf (PD), should be able to perform work by standing, walking, speaking/hearing and seeing, which is required for the post of Assistant Agriculture Engineer. Only those Persons with Disabilities, whose nature of disability is permanent and is 40% and more, shall be eligible to apply for the post. As the Petitioner is having 40% disability in vision, he is not eligible to apply for the post of Assistant Agriculture Engineer under PH category.

15. He further submits, as there is no specific mention as to person suffering from blindness or low vision to be eligible to apply for the said post in terms of the advertisement, the Petitioner has no right to ask for appointment under the said category, as has been prayed in the Writ Petition and the same deserves to be dismissed in limine.

16. Mr.Mohanty submits, there is a specific mention in the said advertisement that a person is eligible to be appointed in the post of Assistant Agriculture Engineer, even if having disabilities should be able to perform the work by standing, walking, speaking/hearing and seeing, which is required for the post of Assistant Agriculture Engineer. Whereas, the present Petitioner is having visual disability. He is not fit for appointment in the post of Assistant Agriculture Engineers as he is unable to see properly. The advertisement no.02 of 2019-20 was made by the OPSC on being so requisitioned by the authority concerned and there is no scope for interference.

17. In response to the said argument advanced by Mr.Mohanty, Mr.Pradhan, learned Counsel for the Petitioner further submits, such submissions made by learned Senior Counsel for OPSC is beyond the stand taken in the Counter Affidavit and is not acceptable in the eye of law. Such a stand has been taken for first time to mis-lead this Court and debar the Petitioner from his legitimate claims and rights flowing out of the said advertisement.

18. Mr.Pradhan draws attention of this Court to the previous requisition dated 20.02.2014 made by the Government of Odisha, Agriculture Department and submits, the said requisition form, so also advertisement is almost identical to advertisement for the year 2019 and there is a specific mention in the compliance letter dated 04.07.2014 addressed to the OPSC that the persons suffering from blindness or low vision are eligible for recruitment to the post of Assistant Agriculture Engineer.

19. Mr. Pradhan further submits, the argument advanced by the learned Counsel for OPSC that the Petitioner is not eligible to be considered under the reserved category, having visual disability, is misleading. In the said advertisement made in the year 2014, there was a specific mention that the persons suffering from blindness or low vision, who belong to 1st sub-category, are eligible for appointment in the post of Assistant Agriculture Engineer.

20. It is apt to mention here that in view of such submission, which was also made by learned Counsel for the Petitioner earlier, a coordinate Bench, vide order dated 20.09.2022, directed OPSC to produce the requisition made by the Government pertaining to the advertisement for the year of 2014-15. Para 2 & 3 of the said order dated 20.09.2022, are reproduced below:

“2. A stand has been taken by the OPSC in his counter that the advertisement for 2019-20 was issued strictly as per the requisition received from the Government.

3. Mr.Pradhan, learned counsel for the petitioner has drawn attention of this Court to an earlier advertisement, i.e., for the year 2014-15 for the same post of Assistant Agriculture Engineer in which one post was reserved for Physically Handicapped persons, i.e. for persons suffering from blindness or low vision (1st sub-category). In the instant case, the advertisement has referred to person to the disabilities wherein persons with low vision have not been included. It is also mentioned in the counter that the candidature of the petitioner was not considered on such ground. Let the concerned requisition of the Government be placed before this Court. It be further clarified as to how or on what basis, the category of physically handicapped was further qualified to include only certain categories of physical disabilities leaving out disabilities relating to low vision, which was earlier considered in 2014-15.”

(Emphasis Supplied)

21. Pursuant to the said order dated 20.09.2022, no clarification was tendered by OPSC. However, requisitions submitted by the State dated 20th February, 2014 and 12th February, 2019 were produced by the learned Counsel for OPSC. This Court, vide order dated 23.02.2023, while ordering to declare the result of the Petitioner in I.A. No.5773 of 2020, observed as follows:-

“6. Pursuant to the said Order, OPSC has filed requisition submitted by the Government of Odisha, Agriculture Department, for recruitment to the post of Assistant Agriculture Engineers (Group-B) dated 04.07.2014 and dated 12.02.2019 after serving copy of the same on learned Counsel for the Petitioner. As is revealed from the requisition dated 04.07.2014, in the forwarding letter itself there is a mention as to reservation for person suffering from blindness or low vision belongs to 1st sub-category, so far as recruitment to the post of Assistant Agriculture Engineers is concerned.

7. Clause 6(ii) of the Requisition Form appended to forwarding letter dated 04.07.2014 is almost identical to Clause 6(ii) in Requisition Form appended to the forwarding letter 12.02.2019. The relevant portion of the said clause is extracted below:

“[one Leg affected (MNR), PD (with suitable aid) categories of disabled are suitable for the post of Assistant Agriculture Officer]. PH persons with disability of one leg affected (Right or Left) and partially deaf (PD) and having physically fit to perform work by standing, walking, speaking/hearing and seeing are required for the post of Assistant Agriculture Engineer. The eligibility of PH persons with disability not less than 40%.”

8. Further, it is ascertained that though the forwarding letter is consisting of three pages, admittedly the middle page of the said forwarding letter dated 12.02.2019 is missing.

9. As per the advertisement No.2 of 2019-20, as at Annexure-1, persons with disabilities, whose nature of disability, is permanent and is 40% and more shall be eligible to apply for the post. The relevant portion is reproduced below:

“Further it is clarified that the [one leg affected (MNR), PD (with suitable aid) categories of disabled are suitable for the post of Assistant Agriculture Engineers.] PH persons with disability of one leg affected (Right or Left) & Partially Deaf (PD) should be able to perform work by standing, walking, speaking/hearing and seeing which is required for the post of Assistant Agriculture engineer. Only those Persons With Disabilities, whose nature of disability, is permanent and is 40% and more shall be eligible to apply for the post.”

10. From the Disability Certificate annexed to the Writ Petition, so also the application submitted by the Petitioner, as at Annexure-2, as against item no.11(a), there is a clear cut mention against PWD category “Yes VH (40%)”. Similarly, Disability Certificate issued by the Medical Authority, Ganjam, Odisha also indicates as follows:

“This is to certify that I/We have carefully examined Shri Biswajit Panda Son of Shri Santosh Kumar Panda Date of Birth 21/02/1996 Age 23 Year(s) Male, Registration No.2119/00000/1906/072250 resident of House No. Panchabhuti, Jagannath Prasad, Panchabhuti-761121 Sub District Jagannath Prasad District Ganjam State / UTs Odisha Whose photograph is affixed above, and I/We satisfied that:

(A) He is a case of low vision

(B) The diagnosis in his case is VLE 6/60 RE 6/24 high myopia Bes with corrected by glass

(C) He has 40% (in figure) Forty percent (in words) Permanent in relation to his (part of body) as per guidelines (to be specified)”

(Emphasis supplied)

22. It is worthwhile to reiterate that pursuant to order dated 23.02.2023, result of the Petitioner was declared and disclosed vide Compliance Affidavit dated 9th March, 2023. In view of such affidavit again, being directed by this Court vide order dated 9th March, 2023, the OPSC filed an affidavit dated 27.03.2023. Relevant paragraphs of the said Affidavits have already been quoted above.

23. From the pleadings of the parties, so also submissions made by the learned Counsel for the parties and the documents on record, as detailed above, it is amply clear that the Petitioner was eligible to apply for the post of Assistant Agriculture Engineer (Group-B) in terms of the advertisement No.02 of 2019-20. Though rightly the OPSC entertained the candidature of the Petitioner under PwD category and he was allowed to appear the Written Examination, the reason best known to the authority concerned, he was not called for the viva voce test. The Coordinate Bench, in W.P.(C) No.3377 of 2020, as an interim, rightly ordered to allow the Petitioner to appear in the Viva Voce Test. Though the said Writ Petition was finally disposed of on 26.02.2022 with an observation that it is open to the OPSC to declare the result of the candidates, to the reason best known, the OPSC declared the result of all the candidates, excepting the Petitioner. The result of the Petitioner was declared, being directed to do so vide Order dated 09.03.2023 in the present Writ Petition.

24. Admittedly there were 5 vacancies under the reserved category for persons with disabilities and as per the Counter Affidavit filed by the OPSC, 3 persons were selected and appointed against the said vacancies meant for the said category and 2 posts are still lying vacant and as stated in the Compliance Affidavit dated 09.03.2023, the 3rd candidate secured total 91.476 marks.

25. Further, as stated in the Compliance Affidavit dated 27.03.2023, the cut-off mark is being fixed based on the marks secured by the last candidate. As per the Affidavit filed by the OPSC, the last candidate secured 91.476 marks. As because there was no suitable candidate under the said category of PwD, only 3 persons were selected and appointed as against 5 vacancies and the Petitioner has secured total 83.506 marks, i.e. just below the marks secured by the third candidate, who has already been selected and appointed as Assistant Agriculture Engineer (Group-B).

26. Since as per previous advertisement made by OPSC for the year 2014-15, persons with low vision were considered to be eligible for applying under PH category for the post of Assistant Agriculture Engineer (Group-B), the advertisement for the year 2019-20 being identical to the advertisement for the year 2014-15, this Court is of the view that OPSC was not justified to debar the Petitioner taking a plea that Petitioner having disability of low vision, is not falling under the PwD category for appointment in the post of Assistant Agriculture Engineer (Group-B). Hence, this Court directs the OPSC to declare the Petitioner to be a selected candidate under the PwD category as he belongs to 1st subcategory i.e. person suffering from blindness or low vision and intimate the requisitioning Authority forthwith to do the further needful in accordance with law.

27. Accordingly the Writ Petition stands allowed. No order as to cost.