Gauhati High Court
Saidur Rahman Barbhuiya And 16 Ors vs The State Of Assam And 5 Ors on 11 June, 2019
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/11
GAHC010017372015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 4077/2015
1:SAIDUR RAHMAN BARBHUIYA and 16 ORS
S/O SIRAJ UDDIN BARBHUIYA, VILL. NIZ FULBARI PART-III, P.O. FULBARI,
P.S. KATIGORAH, DIST- CACHAR, ASSAM
VERSUS
1:THE STATE OF ASSAM AND 5 ORS
REP. BY THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM, HOME DEPTT.,
DISPUR, GHY-6
Advocate for the Petitioner : MR.Z HAMMAD
Advocate for the Respondent :
Linked Case : WP(C) 4496/2015
1:SAIDUR RAHMAN BARBHUIYA and 16 ORS
S/O SIRAJ UDDIN BARBHUIYA
VILL- NIZ FULBARI PART-III
PO. FULBARI P.S. KATIGORAH
DIST. CACHAR
ASSAM.
VERSUS
1:THE STATE OF ASSAM and 386 ORS
TO BE REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
Page No.# 2/11
GUWAHATI-6.
Advocate for the Petitioner : MR.Z HAMMAD
Advocate for the Respondent : MR.N UPADHYAYA
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
JUDGMENT
Date : 11-06-2019 WP(C) No. 4077 of 2015 Saidur Rahman Barbhuiya And 16 Ors S/O Siraj Uddin Barbhuiya, Vill. Niz Fulbari Part-Iii, P.O. Fulbari, P.S. Katigorah, Dist- Cachar, Assam Versus The State Of Assam And 5 Ors Rep. By The Principal Secy. To The Govt. Of Assam, Home Deptt., Dispur, Ghy-6 Advocate for the Petitioner : Mr. Z Hammad Advocate for the Respondent :
WP(C) No. 4496 of 2015
Saidur Rahman Barbhuiya And 16 Ors S/O Siraj Uddin Barbhuiya Vill- Niz Fulbari Part-Iii Po. Fulbari P.S. Katigorah Dist. Cachar Assam.
Versus The State Of Assam And 386 Ors To Be Rep. By The Principal Secretary To The Govt. Of Assam Home Department Dispur Guwahati-6 Advocate for the Petitioner : MR.Z HAMMAD Advocate for the Respondent : MR.N UPADHYAYA Page No.# 3/11 :::BEFORE:::
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA Date of Hearing : 04.06.2019 Date of Judgment :
J U D G M E N T & O R D E R (CAV) Heard Mr. A.M. Barbhuiya, learned counsel for the petitioners in both the writ petitions. Also heard Mr. R.K. Dev Choudhury, learned Senior Govt. Advocate for the State respondents and Mr. N. Upadhyaya, learned counsel for the private respondents.
2. The petitioners are aggrieved by the filling up of the vacant posts earmarked for General/Unreserved Category candidates by Reserved Category candidates, in pursuance to the recruitment process held for filling up 381 posts of Armed Branch Constables in Cachar District.
3. The petitioners case in brief is that an advertisement for recruitment of 6748 numbers of vacant posts in the Armed Branch Constables in Assam Police was issued on 24.12.2014. In the District wise distribution of vacancies, 381 vacancies were allotted to Cachar District. The reservation of vacancies in all the District of Assam, including Cachar District, was as follows:
"RESERVATION:
Ten percent (10%) of the vacancies will be reserved for women candidates.
Reservation of the vacancies for the Scheduled Caste/Scheduled Tribe(Plains)/Scheduled Tribe (Hills)/Other Backward Classes/More Other Backward Classes for both men and women will be: SC - 7%, ST(P) - 10%, ST(H) - 5%, OBC and MOBC - 27%."
4. Besides various other eligibility criteria being stipulated in the Advertisement dated 24.12.2014, Clause-5 states as follows:
"v. Results of the PST and PET will be locally displayed at the end of each day of Test. However, candidates shall have no claim or right to appear in the Written Test merely on the ground that they secured the minimum qualifying standards in the PST and PET. After completion of the PST and PET for all the candidates, District-wise Page No.# 4/11 merit lists for each category (Gen, OBC, MOBC, SC, ST(P), ST(H) for both men and women) will be prepared on the basis of the total marks scored on PET. Candidates will be called for the Written Test in order of merit at the rate of 5 (five) times the number of posts allotted in respect of each category. If the total number of qualifying candidates turns out to be less than 5 times the number of posts, all qualifying candidates but no other will be called for the Written Test. If there are candidates scoring the same marks in PET as the last candidate selected for the written test by the 5 times formula in a particular case, the candidates scoring the same marks will also be called for the written examination, and therefore, the number may exceed the 5 times to that extent for that particular case and category only."
5. The petitioners participated in the Physical Efficiency Test (PET) and Physical Standard Test (PST). However, as they were not called for written examination, they have filed the present writ petition. The main grievance of the writ petitioners is that out of 381 vacant posts reserved for Cachar District, 156 posts should have been filled up by General Category candidates. However, only 53 General/Unreserved Category candidates were selected and appointed against the posts earmarked for General/Unreserved Category candidates. The remaining posts were filled up by Reserved Category candidates.
6. The petitioners counsel submits that more Reserved Category candidates have been appointed than the posts reserved for the Reserved Category candidates. He accordingly submits that the entire selection process should be set aside and the respondents should be directed to conduct a fresh selection process from the stage of conducting the written test, by allowing the petitioners to also participate in the same.
7. Mr. R.K. Dev Choudhury, learned Senior Govt. Advocate for the State respondents submits that the cut-off marks for male unreserved candidates, which would have enabled the petitioners to take part in the written test was 34.5% and for female unreserved candidates, the cut-off marks was 34%. He submits that the writ petition itself shows that the petitioners did not secure the cut-off marks of 34.5%, to enable them to take part in the written test.
8. Mr. N. Upadhyaya, learned counsel for the private respondents, besides relying upon the submissions made by the learned counsel for the State respondents, submits that there is no infirmity with Reserved Category candidates being appointed against the posts earmarked for General Category candidates, if the Reserved Category candidates do better in the selection process than the General Category candidates.
9. I have heard the learned counsels for the parties.
10. The stand of the petitioners is reflected in para No. 7 of the writ petition, which is reproduced below:
"7. That on 15/07/2015 the official respondents completely violating the reservation roster and recruitment rules, selected the private respondents No. 7 to 387 (in all categories) of Cachar district only where many candidates have been selected Page No.# 5/11 who secured less marks than the petitioners in PST and PET. In the select list (a) in place of 156 general category candidates, only 53 candidates have been selected, (b) in place of 102 OBC/MOBC posts, total 204 candidates have been selected, (c) against 38 post of ST(P) category, the respondent selected 46 candidates, (d) the official respondents also selected 24 candidates have for ST(H) category in place of 19 posts,
(e) another 54 candidates have been selected for SC candidates in place of 26 posts
(f) that apart 38 women candidates on 10% reservation have not been selected separately as per the advertisement.
Accordingly official respondents are processing for appointing these illegally selected candidates violating their own advertisement, reservation policy and all other general recruitments procedures. But still no appointment has been made as per the impugned select list. After thorough calculation it found that the official respondents have to select the candidates as per the advertisement as follows:
i) 10% women = 38.1 posts.
ii) 7% SC = 26.67 posts.
iii) 10% ST(P) = 38.1 posts.
iv) 5% ST(H) = 19.05 posts.
v) 27% OBC/MOBC = 102.87 posts.
iv) Rest 41% for general candidates = 156.21 posts.
Thus it comes to total = 381 posts of AB Constable in Cachar district."
11. As against the stand of the writ petitioners in para No. 7, the respondent No. 2 has given a table, showing the Category wise cut-off marks for general and reserved category candidates, that has been applied by the District Level Selection Committee, Cachar, which is as follows:
Category Male Female
Cut-off marks Cut-off marks
Unreserved 34.5 34
SC 32 33
ST(P) 32 32
ST(H) 32 32
OBC/MOBC 32 32.5
The respondent No. 2 has also given a Table 1.1 showing the number of male and Page No.# 6/11 female candidates, who had secured the cut-off marks and were called to participate in the written examination for each category. Table 1.1 is reproduced below:
Unreserved OBC/MOBC ST(H) ST(P) SC
Mal Femal Mal Femal Mal Femal Mal Femal Mal Femal
e e e e e e e e e e
Cachar Total
Number of 175 19 93 10 17 02 34 04 24 03 381
posts
Candidates to
be called for
written exam 875 95 465 50 85 10 170 20 120 15 1905
i.e. posts x 5
Number of
candidates 935 115 249 55 20 05 25 110
called for A A B A B B B 20 B 15 1549
written exam
A = Extra candidates got equal marks as the last candidate, hence called for written test.
B = Sufficient candidates not available in these categories.
12. Though there is a slight difference in the number of vacancies reserved against each category, there is a major difference in the number of vacancies earmarked for the Unreserved Category, as calculated by the writ petitioners (156) and by the State respondents (194). What is however not in dispute is the fact that only 53 General/Unreserved Category candidates have been selected and appointed, while the rest of the earmarked vacancies for the unreserved category, have been filled up by candidates from the Reserved Category.
13. In the case of R.K. Sabharwal and Others v. State of Punjab and Others, reported in (1995) 2 SCC 745, the Apex Court has held at para 4 as follows:
"4. When a percentage of reservation is fixed in respect of a particular cadre and Page No.# 7/11 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 reserve 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."
A reading of the above clearly shows that reserved category candidates can compete for the unreserved category posts on merit and in the event of their selection/appointment to the said posts on merit, it cannot be said that their appointments, were illegal.
14. In the present case, the petitioners, who are unreserved category candidates, have not been able to secure the cut-off marks of 34.5, in the PET/PST, which is required of an unreserved category candidate. On the other hand, the reserved category candidates, who were appointed against unreserved category posts, have secured cut-off marks in the PET/PST, as required for the particular reserved category candidate. Thus, just because the reserved category candidate does not secure 34.5% in the PET/PST, it cannot be said that he/she cannot take part in the written test, so long as he/she gets the required cut off mark, earmarked/stipulated for the particular reserved category. Consequent upon the reserved category/unreserved category candidate securing the required cut-off mark/percentage in the PET/PST, they have been allowed to take part in the written test. The marks that have been secured by the candidates in the written test would thereafter be taken into consideration along with other marks to determine whether the reserved category candidates could also be selected for appointment to general/unreserved category post.
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15. A perusal of the final recommended list of candidates (in order of merit), shows that a number of reserved category candidates have also secured better marks than general category candidates and as such, there is no infirmity with the selection and appointment of the reserved category candidates to unreserved category vacancies, on the basis of the marks secured by them in the written examination. The further question to be decided is, whether reserved category candidates can be appointed to unreserved/General Category vacancies, after having availed of the relaxation given to reserved category candidates in respect of the cut-off marks secured during PET/PST.
16. In the case of Jitendra Kumar Singh & Anr. vs. State of Uttar Pradesh & Ors, reported in 2010 3 SCC 119, the question to be decided was, whether the reserved category candidates could have participated for appointment to General Category vacancies, after having availed the relaxation of age provided to reserved candidates. In this respect, the Apex Court in Jitendra Kumar Singh & Anr. vs. State of Uttar Pradesh & Ors. (Supra) has stated in para 75 as follows:-
"75. In our opinion, the relaxation in age does not in any manner upset the "level playing field". It is not possible to accept the submission of the learned counsel for the appellants that relaxation in age or the concession in fee would in any manner be infringement of Article 16 (1) of the Constitution of India. These concessions are provisions pertaining to the eligibility of a candidate to appear in the competitive examination. At the time when the concessions are availed, the open competition has not commenced. It commences when all the candidate who, fulfil the eligibility conditions, namely, qualifications, age, preliminary written test and physical test are permitted to sit in the main written examination. With age relaxation and the fee concession, the reserved Page No.# 9/11 candidates are merely brought within the zone of consideration, so that they can participate in the open competition on merit. Once the candidate participates in the written examination, it is immaterial as to which category, the candidate belongs. All the candidates to be declared eligible had participated in the Preliminary Test as also in the Physical Test. It is only thereafter that successful candidates have been permitted to participate in the open competition."
Further, the law laid down by the Apex Court in Jitendra Kumar Singh (supra) has also been followed by this Court in the case of Lalparmoi Hmar vs. State of Assam & Ors, reported in 2017 1 GLT 202 and in WP(C) No. 4920/2015, in which case, this Court by its order dated 09.08.2016 has held as follows:-
"By taking recourse to the law laid down by the Apex Court in the case referred to above, it is clear that the petitioner having taken advantage of the relaxation clause with respect to his age and height, the same does not mean that the petitioner could be considered only for a post reserved for an ST(P). The selection process for appointment to the post of constable (AB) commenced after the concession available in the relaxation clause was availed by the petitioner. As such there was no change to the level playing field at the time of the actual selection process for appointment to a general category post.
Due to the fact that the petitioner had received the aggregate marks of 64.5, as compared to the marks of respondent No.5, who had got 64 marks, it is quite clear that the petitioner is more meritorious than the respondent No. 5. As such, if the respondent No. 5 could have been appointed to a general category post on the basis of her marks, there is no reason to deny the same to the petitioner who has got higher marks."
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17. In the present case, the petitioners have not been called for the written test, as they did not secure the cut-off marks of 34.4 in PET/PST. Reserved category candidates, who secured the cut-off marks/percentage, required for reserved category candidates were allowed to participate in the written test. Thereafter, the actual appointments were made on the basis of merit, marks secured based upon open competition. The relaxation of cut-off marks given to reserved category candidate on the basis of Physical Efficiency Test/Physical Standard Test is only to bring them within the zone of consideration, so that they can participate in the open competition on merit. Once the candidates participate in the written examination, it is immaterial as to which category, the candidates belongs. The marks obtained by the candidates in the PET/PST, has got nothing to do with merit but only upon physical attributes, etc., of a candidates. Thus, this Court is of the view that there is no infirmity with the selection and appointment of reserved category candidates to general/unreserved category post, depending upon the merit/marks secured by the reserved category candidates vis-à-vis general category candidates. In view of the fact that the petitioners have not secured the cut-off marks of 34.5, due to which they could not take the written test, the petitioners cannot be said to have suffered any legal injury. Further, they have not challenged the cut-off marks made by the State respondents. In the case of Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, reported in (2013) 4 SCC 465, the Apex Court has held that only an aggrieved person can file a writ petition for enforcing a statutory or legal right or when there has been a breach of statutory duty on the part of the authorities. Thus, the petitioners cannot be said to be aggrieved persons, as there is no violation of any of their statutory or legal right.
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18. Accordingly, in view of the reasons stated above, this Court finds that there is no infirmity with the State respondents, in not calling the petitioners for participating in the written examination. The writ petitions are accordingly dismissed.
JUDGE Comparing Assistant