Gauhati High Court
Sri Dipankar Lahkar vs The State Of Assam And 6 Ors on 9 September, 2022
Bench: N. Kotiswar Singh, Nani Tagia
Page No.# 1/29
GAHC010180392019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/240/2019
SRI DIPANKAR LAHKAR
S/O- LT. BIPIN CHANDRA LAHKAR, VILL.- MAZGAON, RATANPUR, P.O.-
MAHABHAIRAB, TEZPUR, DIST.- SONITPUR, ASSAM, PIN- 784001.
VERSUS
THE STATE OF ASSAM AND 6 ORS
REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM,
IRRIGATION DEPTT., DISPUR, GHY- 6.
2:THE CHIEF ENGINEER
IRRIGATION DEPTT.
GUWAHATI
ASSAM
GHY- 3.
3:THE SUPERINTENDING ENGINEER
DEPTT. OF IRRIGATION
TEZPUR CIRCLE
TEZPUR
DIST.- SONITPUR
ASSAM
PIN- 784001.
4:TRIBENI THENGAL
D/O- SRI TAJNESWAR THENGAL
VILL.- RATANPUR GAON
P.O.- BORNAHJAN
P.S.- TITABOR
DIST.- JORHAT
ASSAM
PIN-785630.
5:SANTA BHATTACHARJEE
Page No.# 2/29
C/O- MR. RUDRAJIT BHATTACHARJEE
NEAR BIRUBARI
KALIMANDIR
UDAYPUR
LANE NO. 3
H/ NO.- 8
ASHIRBAD KUNJ
P.O.- GOPINATH NAGAR
GHY- 16
DIST.- KAMRUP
ASSAM.
6:SILVIA RAHMAN
IRRIGATION COLONY
FLAT - II
UNIT- IV
CHANDMARI
GHY- 3
DIST.- KAMRUP
ASSAM.
7:SEHNAZ RAHMAN
C/O- MD. AMIR HUSSAIN MOLLAH
MATHURA NAGAR
DR. Z.H. ROAD
1ST BYE LANE
P.O.- DISPUR
DIST.- KAMRUP
ASSAM
PIN- 781006
Before
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MR. JUSTICE NANI TAGIA
For the Writ Appellant : Mr. N. Nath, Advocate.
: Mr. P.K. Deka, Advocate.
For the Respondent Nos.1 -3 : Mr. N. Upadhyay, SC, Irrigation Dept.
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For the Respondent Nos.5 & 7 : Mr. P.K. Roychoudhury, Advocate,
: Mr. N. Haque, Advocate.
For the Respondent No.6 : Mr. M.A.I. Hussain, Advocate.
Dates of Hearing : 24.03.2022, 04.04.2022 & 08.04.2022.
Date of Judgment : 09.09.2022
JUDGMENT AND ORDER (CAV)
[N. Kotiswar Singh, J.]
Heard Mr. N. Nath, learned counsel for the appellant. Also heard Mr. N. Upadhyay,
learned Standing Counsel, Irrigation Department appearing for the respondent Nos.1, 2 & 3;
Mr. P.K. Roychoudhury, learned counsel along with Mr. N. Haque appearing for the respondent
Nos. 5 & 7 and Mr. M.A.I. Hussain, learned counsel for the respondent No.6.
2. In this appeal the appellant has challenged the order passed by the Ld. Single Judge
of this Court on 16.07.2019 in WP(C) No.1493/2012 by which the appellant's writ petition was
dismissed.
3. Before we examine the submissions advanced by the learned counsel for the appellant
challenging the order passed by the Single Judge on 16.07.2019 in WP(C) No.1493/2012, a
brief reference to the background facts may be apposite.
BACKGROUND FACTS
4. On 28.08.2010 an advertisement was published by Chief Engineer, Irrigation
Department, Assam by which a number of vacancies were sought to be filled up in respect of
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Grade-III posts under the District Level Offices of Irrigation Department.
The advertised posts were as follows,
Number of Vacancies:
1. Junior Assistant: 35 nos. (In the scale of PB=2 Rs.5200-20,200/- Grade pay
Rs.2000/-)
2. Section Assistant: 70 nos. (In the scale of PB=2 Rs.5200-20,200/- Grade pay
Rs.2000/-)
3. Tracer: 10 nos. (In the scale of PB=2 Rs.5200-20,200/- Grade Pay Rs.2000/-)
4. Power Pump Operator : 25 nos. (In the scale of PB=2 Rs.5200-20,200/- Grade
pay Rs.1800/-)
In the said advertisement it has been specifically mentioned that there would be
reservation for the different categories for,
(1) ST(P)-10%
(2) SC-7%
(3) ST(H)-5%
(4) OBC/MOBC- 27%
(5) Physically Handicapped
(Reservation for women-30% in all categories)
Though in Sl. No.5, physically handicapped category has been specifically mentioned,
the percentage is not specified. However, as provided under Section 33 of the Persons with
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Disabilities (Equal Opportunities, Protection, Rights and Full Participation) Act, 1995 which
was applicable at the relevant time, at least 3% reservation has to be provided for the
physically handicapped persons. Since, there were 10 (ten) posts of Tracer advertised, there
ought to have be at least 1 (one) post reserved for the physically handicapped person. In
respect of women, it has been clearly mentioned in the advertisement that reservation for
women will be 30% in all categories.
5. As far as the qualification is concerned, there is no dispute about it amongst the
parties.
6. In the said advertisement, it has also been provided that there would be written and
viva-voce tests. In respect of the post of Tracer handwriting test was also included.
7. In the said advertisement there was no specific mention that the recruitment will be
either district wise or state wise. It is the case of the appellant that the appellant, being an
orthopedically handicapped person having requisite qualifications for the post of Tracer had
applied for the said post and was duly issued the call letter for appearing in the Written test
and he participated in the written examination held in the Tezpur Centre.
8. It is the case of the appellant that as he was declared successful in the written test, he
was called for interview and he participated in viva-voce and did well. In view of his
satisfactory performance in the examination, both written and viva-voce, he was expecting to
be selected to the post of Tracer against a post reserved for physically handicapped person.
Unfortunately, when the result was declared and appointments made, his name did not
figure for appointment and on the contrary, 4 (four) women candidates were appointed
though the maximum number of women who could be appointed in the aforesaid recruitment
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under the 30% quota reserved for women was 3 (three). The appellant submits that after
getting necessary information through an application filed under the RTI Act, 2005, he came
to know that these four women were appointed in excess of 30% reservation for women. The
appellant also came to know that no one was appointed under the handicapped category.
9. The appellant being aggrieved by his non-selection, and alleged appointment of 4
(four) candidates beyond the quota for women challenged these appointments by filing the
writ petition i.e. WP(C) No.1493/2012. The appellant/petitioner challenged the selection
process which according to the appellant was vitiated as far as the post which was reserved
for the physically handicapped person was not filled up. According to the appellant, the
appointments of the said 4(four) women candidates who have been impleaded as respondent
nos. 4 to 7 were not only in access of the reservation for women but was also done by filling
up the post which was reserved for physically handicapped person.
FINDING BY THE LEARNED SINGLE JUDGE:
10. After hearing the contesting parties, the learned Single Judge of this Court passed the
impugned order on 16.07.2019 in the said WP(C) No.1493/2012 rejecting the writ petition by
holding that there were no good grounds to interfere with the selection process and
appointment of the respondent nos. 4 to 7.
The learned Single Judge also made an observation that as per the roster point of
reservation of 3% for the physically handicapped persons as prescribed by the Government of
Assam, the 100th vacancy is reserved for orthopedically handicapped persons.
11. The learned Single Judge held that under such circumstances, two factors were found
to be creating impediments for appointment of the petitioner/appellant, i.e.,
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(i) though the total advertised posts were 140, the respondents had made
appointments only for 97 posts, reserving 43 posts to be filled up by Bodoland Territorial
Council and North Cachar Hills Autonomous Council and, as such, in the said selection
process, 100 roster point had not been reached, which was reserved for orthopedically
handicapped persons.
(ii) the vacancies were for district level offices, and since there was no vacancy in
respect of the post of Tracer under Tezpur Centre for the district of Sonitpur, the petitioner
could not be selected and appointed.
CONTENTIONS OF THE APPELLANT
12. Learned counsel for the appellant submits that the aforesaid observations and the
conclusions arrived at by the learned Single Judge in rejecting the plea of the
petitioner/appellant are erroneous and not in accordance with law.
13. Learned counsel for the appellant by relying on the decision of the Hon'ble Supreme
Court in Rajesh Kumar Daria vs. Rajasthan Public Service Commissioner & Ors.,
(2007) 8 SCC 785 submits that it has been clearly explained by the Hon'ble Supreme Court
in the aforesaid case as to how the horizontal reservation is to be worked out, which would
show that appointment of 4 (four) women were in violation of the said norm.
14. In this regard learned counsel for the appellant has drawn attention of this Court to
the para Nos.6, 7 & 9 of the aforesaid judgment, which are reproduced herein below:
6. Before examining whether the reservation provision relating to women, had been
correctly applied, it will be advantageous to refer to the nature of horizontal reservation and the
manner of its application. In Indra Sawhney vs. Union of India [1992 Supp.(3) SCC 217], the
principle of horizontal reservation was explained thus (Pr.812) :
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" All reservations are not of the same nature. There are two types of reservations, which
may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal
reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and
Other Backward Classes [(under Article 16(4)] may be called vertical reservations
whereas reservations in favour of physically handicapped (under clause (1) of Article
16] can be referred to as horizontal reservations. Horizontal reservations cut across the
vertical reservations - what is called interlocking reservations. To be more precise,
suppose 3% of the vacancies are reserved in favour of physically handicapped persons;
this would be a reservation relatable to clause (1) of Article 16. The persons selected
against the quota will be placed in that quota by making necessary adjustments;
similarly, if he belongs to open competition (OC) category, he will be placed in that
category by making necessary adjustments. Even after providing for these horizontal
reservations, the percentage of reservations in favour of backward class of citizens
remains - and should remain - the same."
7. A provision for women made under Article 15(3), in respect of employment, is a special
reservation as contrasted from the social reservation under Article 16(4). The method of
implementing special reservation, which is a horizontal reservation, cutting across vertical
reservations, was explained by this Court in Anil Kumar Gupta vs. State of U.P. [1995 (5) SCC
173] thus :
"The proper and correct course is to first fill up the Open Competition quota (50%) on
the basis of merit; then fill up each of the social reservation quotas, i.e., S.C., S.T. and
B.C; the third step would be to find out how many candidates belonging to special
reservations have been selected on the above basis. If the quota fixed for horizontal
reservations is already satisfied - in case it is an overall horizontal reservation - no
further question arises. But if it is not so satisfied, the requisite number of special
reservation candidates shall have to be taken and adjusted/accommodated against their
respective social reservation categories by deleting the corresponding number of
candidates therefrom. (If, however, it is a case of compartmentalized horizontal
reservation, then the process of verification and adjustment/accommodation as stated
above should be applied separately to each of the vertical reservations. In such a case,
the reservation of fifteen percent in favour of special categories, overall, may be satisfied
or may not be satisfied.)" [Emphasis supplied]
..........
9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are 'vertical reservations'. Special reservations in favour of physically handicapped, women etc., under Articles 16(1) or 15(3) are 'horizontal reservations'. Where a vertical reservation is made in favour of a backward class under Article 16(4), the candidates belonging to such backward class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their numbers will not be counted against the quota reserved for the Page No.# 9/29 respective backward class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under Open Competition category. [Vide - Indira Sawhney (Supra), R. K. Sabharwal vs. State of Punjab (1995 (2) SCC 745), Union of India vs. Virpal Singh Chauvan (1995 (6) SCC 684 and Ritesh R. Sah vs. Dr. Y. L. Yamul (1996 (3) SCC 253)]. But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for scheduled castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of 'Scheduled Castes-Women'. If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of scheduled caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women. Let us illustrate by an example :
If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC women candidates, then there is no need to disturb the list by including any further SC women candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four women SC candidates. [But if the list of 19 SC candidates contains more than four women candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess women candidate on the ground that 'SC-women' have been selected in excess of the prescribed internal quota of four.
15. Learned counsel for the appellant also submits that the Government of India, Ministry of Personnel, Public Grievances, Pension Department issued the necessary Office Memorandum (O.M.) on 29.12.2005 laying down the methodology as to how the horizontal reservation has to be worked out. In the said O.M. dated 29.12.2005, it has been mentioned specifically under Para-15 that while working out the reservation points, the horizontal reservation of the 100th points have to be divided into 3 (three) blocks: 1 st block , 2nd block Page No.# 10/29 and 3rd block i.e.
(i) 1st Block -Point no.1 to Point no.33
(ii) 2nd Block- Point no.34 to Point no.66
(iii) 3rd Block - Point no.67 to Point no.100.
16. It has been further clarified in Para 15 (c) of the said OM that point nos.1, 34 and 67 of the said roster have to be earmarked as reserved for the persons with disabilities as one point for each of the three categories of disabilities, and the head of the establishment shall decide the categories of disabilities for which the point nos. 1, 34 and 67 shall be reserved keeping in view all relevant facts.
17. It has been further provided under Para-15 (d) of the OM as to how vacancies falling within the points in the three blocks are to be filled up. Para 15 (d) reads as follows:
".....
(d) All the vacancies in Group C posts falling in direct recruitment quota arising in the establishment shall be entered in the relevant roster register. If the post falling at point no.1 is not identified for the disabled or the head of the establishment considers it desirable not to fill it up by a disabled person or it is not possible to fill it up by a disabled person or it is not possible to fill up that post by the disabled for any other reason, one of the vacancies falling at any of the points from 2 to 33 shall be treated as reserved for the disabled and filled as such. Likewise a vacancy falling at any of the points from 34 to 66 or from 67 to 100 shall be filled by the disabled. The purpose of keeping points 1, 34 and 67 as reserved is to fill up the first available suitable vacancy from 1 to 33, first available suitable vacancy from 34 to 66 and first available suitable vacancy from 67 to 100 by persons with disabilities."
18. It has been submitted that the said O.M. dated 29.12.2005 had been adopted by the Page No.# 11/29 State Government by issuing Office Memorandum dated 05.11.2011.
19. As per the aforesaid memorandum, though the Points 1, 34 and 67 are earmarked for the three categories of disabilities, it is not necessarily identified with the said points only, as clearly explained in the para-15 (d) of the OM dated 29.12.2005.
20. Accordingly, as far the 1st Block is concerned, the appointment can be made from Point no.1 to Point no. 33. Similarly, as far as the second block is concerned, the appointment can be made from Point no. 34 to Point no. 66 and under the 3 rd Block, the appointment can be made from Point no.67 to Point no.100. It is not necessary that the first or the last point of the Blocks has to be referred for the purpose of such horizontal reservation.
21. Learned counsel for the appellant submits that under the said circumstances, the observation of the learned Single Judge that the 100 th vacancy was reserved for orthopedically handicapped person and the necessary roster point had not reached till 100 th point, does not conform to the aforesaid Office Memorandum dated 29.12.2005, and to that extent, the same cannot be sustained in law.
22. As regards the second reason adopted by the learned Single Judge that the vacancies are only for district level offices and as such, appointments are to be made district wise, which is also the contention of the State, it has been submitted by the learned counsel for the appellant that it is not correct.
23. It is the stand of the State Government that appointments to these posts were being made under Assam Ministerial Districts Establishment Service Rules, 1967 and as per Page No.# 12/29 the said Rules, these categories of posts are to be filled up district wise. It is also the case of the respondents that since there was no vacancy for Tracer available in the district of Tezpur, no appointment could be made in that district. Hence, non-appointment of the appellant cannot be said to be improper.
24. It has been submitted that a close examination of the provisions of the aforesaid Rules, however, does not support the said contention.
Rule 2 (4) of the Service Rules defines "District Establishment" to mean and include all non-gazetted ministerial staff in the offices of the Deputy Commissioners, Sub Divisional Officers, Sub Deputy Collectors and Block Development Officers of the districts in which case, the appointing authority is the Deputy Commissioner. But the appointments were not made by the Deputy Commissioner
25. Though there are separate offices for Irrigation Department in the Districts which made the appointments, these posts of Tracers do not form part of the establishment of the Deputy Commissioner.
26. In this regard, the learned counsel for the appellant has also drawn attention of this Court to the Rule 3 (1) of Assam Ministerial District Establishment Service Rules, 1967 which states that the service in the district shall comprise of the following categories of posts:
(i) Revenue Sheristadar;
(ii) Sadar Head Assistant;
Subdivisional Head Assistant;
(iii) Supervisory Assistant;
(iv) Sadar Nazir;
Page No.# 13/29
(v) Upper Division Assistant,
Subdivisional Nazir;
(vi) Lower Division Assistant.
It has been submitted that the post of Tracer is not included in any of the above six categories of posts, and as such, it does not form part of the cadre or service which is within the purview of the said service rules. In other words, the said Assam Ministerial Districts Establishment Service Rules, 1967 are not applicable to the said post of Tracer and as such, appointment to the post of Tracer cannot be made district wise. It has been accordingly, submitted that in respect of the post of Tracer, wherever vacancies are available these have to be filled up on the basis of State level merit, irrespective of the districts where vacancies are available and applications made. In other words, the application made by the appellant in the district of Tezpur would be valid and applicable for appointment to any of the vacancies which may be available in any other districts, if not available in Tezpur.
27. Learned counsel for the appellant has also submitted that in any event, the advertisement does not mention that the recruitment would be zone wise or district wise. Thus, in absence of any specific provision in the advertisement as to the manner of recruitment as regards the geographical limits, no new method or criteria of recruitment could be adopted after the selection process had started. It has been submitted that if the intention of the authorities was to make district wise recruitment, that ought to have been clearly mentioned in the advertisement, but the same was not mentioned in the advertisement. If the same had been mentioned, the appellant/petitioner would have taken necessary steps for applying in other districts as well, as where the vacancies were available and not limited to applying in Tezpur district only. According to the appellant the recruitment Page No.# 14/29 process has been changed after the advertisement was issued by making a district wise selection.
28. In this regard, learned counsel for the appellant has relied on the decision of the Hon'ble Supreme Court in K. Manjusree vs. State of Andhra Pradesh and Another reported in (2008) 3 SCC 512 in which it was held that selection criteria have to be prescribed in advance and cannot be changed after the selection process has been initiated, as otherwise, it would amount to changing of the rules of the game which will be impermissible.
29. The Learned counsel for the appellant has also contended that district wise recruitment is discriminatory and violates equal opportunity for appointment to public employment in support of his contention, has relied upon the decision of the Hon'ble Supreme Court passed in Radhey Shyam Singh and Others vs. Union of India and Others, (1997) 1 SCC
60.
30. In Radhe Shyam Singh (supra) it has been categorically held that any zone wise recruitment contrary to the advertisement would be violative of Article 14 and 16 of the Constitution of India, in the following words:
"8. It is needless to emphasis that the purpose and object behind holding a recruitment examination is to select suitable and best candidates out of the lot and such an object can only be achieved by making a common select list of the successful candidates belonging to all the zones. On the other hand if zone-wise selection is made then various candidates who appeared in some of the zones and secured more marks than those who are selected from other zones would be deprived of their selection resulting into great injustice and consequent discrimination. Thus there can be said to exist no nexus between the aforesaid process of zone-wise selection and the object to be achieved, that is, the selection of the best candidates. That being so the process of selection as envisaged in paragraph 16 of the advertisement in question and reproduced in the earlier part of this judgment would lead to discriminatory results because by adopting the said process of zone-
Page No.# 15/29 wise selection would result in the devaluation of merit at the selection examination by selecting a candidate having lesser marks over the meritorious candidate who has secured more marks and consequently the rule of equal chance for equal marks would be violated. Such a process would not only be against the principles enunciated in Article 14 and 16 of the Constitution but it would also result in heart burning and frustration amongst the young men of the country. The rule of equality of opportunity for every individual in the country is an inalienable part of our constitutional guarantee and that being so a candidate who secures more marks than another is definitely entitled to get preference for the job as the merit must be the test when selecting a candidate for recruitment for the posts which are advertised. In the present case admittedly the process of selection as envisaged in paragraph 16 of the advertisement in question is violative of Article 14 and 16 of the Constitution of India as it has been demonstrated from the markssheet of the appellants placed before us at the Bar during the course of arguments that they had secured more marks than those secured by some of the selected candidates.
9. In the case of Rajendran Vs. State of Madras & Ors. (1968(2) SCR 786) this Court had struck down the district wise distribution of seats for the medical admission as providing for unit wise allocation was held to be violative of Article 14 and 16 of the Constitution on the ground that it might result in candidates of inferior calibre being selected in one district and those of superior calibre not being selected in another district. Similarly in the case of Peeriakaruppan Vs State of Tamil Nadu & Ors. (1971 (2) SCR 430) unit-wise allocation of seats was also held to be void and was struck down as discriminatory. Again in the case of Nidamarti Mahesh Kumar Vs. State of Maharashtra & Ors. (1986 (2) SCC 534) region-wise scheme adopted by the State Government was held to be void and struck down by this Court by holding that it would result in denial of equal opportunity and was thus violative of Article 14 of the Constitution. The ratio of these decisions of this Court is fully attracted to the facts of the present case in which the process of selection on the zonal basis will also result in denial of equal opportunity and would be violative of Article 14 and we hold accordingly."
CONTENTIONS OF THE STATE:
31. Mr. Upadhyay, learned counsel for the State has reiterated before us the stand taken before the learned Single Judge. Essentially, it is twofold. Firstly, as provided in the letter dated 30.03.1998 based on the OM dated 18.08.1995 and 27.07.1995 issued by the Personnel (B), Department, the roster of reservation for physically challenged persons were as follows, the 33rd vacancy was reserved for the blind, 66 th for the deaf and 100th for the orthopedically handicapped persons. It has been submitted that though 140 posts were initially advertised, 43 of the posts were subsequently allotted to the two Autonomous Page No.# 16/29 Councils, namely, Bodoland Territorial Council (BTC) and North Cachar Hills Autonomous Council, thus leaving only 97 vacancies to be filled up by the State. Since the roster point for orthopedically handicapped fell on the 100 th, the number of posts fell short to reach the roster point 100 to accommodate the orthopedically handicapped person.
Secondly, since there was no vacancy for the post of Tracer in Tezpur District, the petitioner-appellant could not be considered for appointment. CONTENTIONS OF THE PRIVATE RESPONDENTS:
32. Mr. P.K. Roychoudhury, learned counsel appearing for the respondent Nos.5 & 7 submitted that the advertisement need not mention every detail of the recruitment process. It was submitted that so long as the selection process was fair, transparent and all the eligible candidates had been considered, the selection process does not warrant interference.
Mr. Roychoudhury submits that it has been specifically mentioned in the advertisement that the reservation of posts for SC/ST(P)/ST(H)/OBC/MOBC/Women/Physically Handicapped as per reservation of vacancies in services and posts, subject to availability of suitable candidates from the aforesaid categories, will be made under respective District level offices. Thus, it has been specifically indicated in the advertisement that the reservation will be under the respective District level offices, thereby meaning that the application of the appellant will be also under the respective District level office.
33. It was further submitted by Mr. P.K. Roychoudhury that it is on record that the private respondents had scored higher marks than the present petitioner-appellant as the name of the appellant does not appear in the merit list for Tezpur zone and as such, the question of appointing the appellant by ignoring the claim of more meritorious persons does not arise.
Page No.# 17/29 As regards the contention of the appellant that there may be other candidates who might have scored lesser marks than him, who have been appointed in other districts, it has been submitted that it cannot be ascertained without undertaking a proper exercise and during so would virtually amount to making a roving enquiry.
34. It has been submitted that all the private respondents who are women were not appointed against the reserved quota of 30% meant for women but they were appointed purely on merit.
It has been also submitted that since the petitioner-appellant was not within the zone of consideration in terms of merit even in his own zone/district, non-appointment of the petitioner-appellant cannot be faulted with.
35. Mr. M.A.I. Hussain, learned counsel for respondent No.6 also has submitted in similar lines. He has reiterated the submission advanced by the State Government and has submitted that assuming but not admitting that the recruitment could not be made district wise as contended by the appellant, in any event, the person getting the least mark must give way and such candidate appointed in other district has to go. It has been submitted that in the present case, the respondent No.6 is more meritorious than many other candidates who were appointed in other districts. For example, in the district of Cachar, the candidate who had scored 105 was appointed, in respect of Nagaon district the candidate who had scored 110 marks was appointed, whereas the respondent No.6 got higher marks of 120.86. However, those candidates, who had scored less marks than the respondent No.6 and given appointments, have not been impleaded as party respondents and as such, in absence of the persons who had obtained lesser marks than the private respondents in the proceedings, the Page No.# 18/29 present petition is defective and as such is liable to be dismissed on the ground of non- joinder of necessary parties.
36. It has been also submitted that perusal of the relief claimed in the writ petition indicates that though the appellant had challenged the appointment orders dated 12.10.2011 and 17.10.2011 in respect of the private respondents, no prayer has been made for the appointment of the appellant and accordingly, it has been submitted that no relief can be granted at this stage to the appellant, more so, when the finding of the learned Single Judge does not suffer from any infirmity.
OUR CONSIDERATION:
37. As can be seen there are mainly two issues involved in this appeal.
Firstly, as to whether the advertisement contemplated district/zone wise recruitment and accordingly, whether district/zone wise recruitments made were valid.
Secondly, whether the authorities committed any illegality by not giving appointment to the appellant/petitioner against the reserved quota/post for the orthopedically challenged persons.
38. We will accordingly examine the advertisement minutely. It says that applications are invited in the prescribed forms for recruitment to the Grade III posts under the District Level Offices in the Irrigation Department.
The advertisement mentions of the reservation of posts for various reserved categories.
The advertisement clearly mentions the authorities to which the applications are to be Page No.# 19/29 submitted by showing the names of various offices in as many as 11 (eleven) districts.
The advertisement then mentions the educational qualifications and the various documents which are required to be submitted for applying for these posts.
The advertisement also mentions about the written test and viva-voce/ handwriting test for the various posts mentioned above and marks allotted for these.
The advertisement also laid down various conditions. One of the conditions was that the details of date of examination and examination centre would be intimated through newspapers in due course of time and also from the head of the respective offices through which applications were submitted.
However, while indicating the number of vacancies and offices in 11 districts where the applications could be submitted, the district wise vacancies have not been shown in the advertisement nor was it specifically mentioned that the vacancies in the districts would be filled up based on district/zone wise merit list. Thus, even if it were the intention of the authorities to fill up the various Grade-III posts under the district level offices in Irrigation Department in the different districts on the basis of district wise merit list, the said intention was not explicitly made clear to the applicants through the advertisement.
39. The importance of advertisement lies in the fact that it is a public announcement by the appointing authority and expression of intent to make appointments to the public posts, so that, every eligible person gets an equal opportunity to apply and to be considered for appointment to such public posts advertised. This is in compliance with the mandate of Article 16 of the Constitution of India which provides that there shall be equality of opportunity for all citizens in the matters relating to employment or appointment to any office under the Page No.# 20/29 State. Consequently, the eligibility criteria, the number of posts, and reservations under different categories and methodology by which the recruitments are to be made, are required to be notified. In other words, the advertisement normally ought to indicate the salient features of the recruitment process as mentioned above, so that, the applicants would know what is expected from them while applying for the said posts. These features of the recruitment process which are advertised are of course to be in consonance with the relevant service rules governing the posts and cannot be contrary to the same. At the same time, it is also to be noted that while the advertisement need not mention all the details of the posts or the recruitment process, yet it must indicate the broad and main features of the posts and the recruitment process to every applicant so that the applicants would know what is expected from them and are also aware of the intention of the employer/authority so that there is fair play and transparency in the recruitment process.
40. In that context we have to examine the advertisement as regards the contention of the appellant that the appointment to the posts of the Tracers could not have been made on the basis of district wise merit list as it was never advertised in that manner.
41. We have already noted that while the advertisement mentioned the total number of posts of Tracer to be filled up, it did not indicate that the recruitment will be made district wise, from amongst the candidates from the particular district on the basis of the district/zone wise merit list. In fact, the advertisement did not show the district wise vacancies and indicate that the appointments will be made from the candidates applying in the particular district on the basis of the district/zone wise merit list. Thus, there was also no indication at all that the appointments will be made only from amongst the candidates applying in a particular district.
Page No.# 21/29 On the contrary, the indication in the advertisement is that the appointments to the vacancies in the district will be made on the basis of the State wise merit list and not district wise merit list. There was nothing in the advertisement that an applicant could apply only in one district for appointment in that particular district.
42. When the advertisement was issued, the authorities were very well aware of the vacancy positions in the districts. Thus, it can be also inferred that the authorities also knew that there was no vacancy for the post of Tracer in Tezpur district/zone. Yet, the authorities allowed applicants to submit applications to the Superintending Engineer, Tezpur Circle (Irrigation), Tezpur for the post of Tracer also. The appellant, thus, submitted his application to the office of Superintending Engineer, Tezpur Circle for the post of Tracer and his application was duly accepted and he was allowed to participate in the recruitment process for the post of Tracer. Thereafter, not only he was found qualified in the written test, but was also called for interview for the said post of Tracer. Thus, for all intents and purposes, the authorities had given the impression to the applicant that the appointment to the posts of Tracer in the districts would be done on the basis of the State wise merit list.
43. However, when the appointments were made, it was done district/zone wise by appointing applicants who applied in the particular zone/district concerned based on the zone/district wise merit list and not by considering candidates from other districts/zones. Thus, if appointments were made to the posts of Tracer in the vacancies arising in Golaghat or Guwahati zone, the same were done by considering only candidates appearing in those districts/zone and not by considering the combined State wise merit list of the candidates. Accordingly, it can be said that it amounted to changing the recruitment process which would not be permissible as held in K. Manjusree (supra) and we endorse the submission of the Page No.# 22/29 learned Counsel for the appellant. Resultantly, the appointment based on district/zone wise merit list cannot be said to proper.
44. Further, learned counsel of the appellant has relied upon the decision of the Hon'ble Supreme Court in Radhe Shyam Singh (supra) which did not approve of zone wise selection as it amounts to denial of equal opportunity for appointment of more meritorious candidates available in other zones.
In Radhe Shyam Singh (supra) the Subordinate Services Commission constituted by the Government of India (DP & AR) took a decision to make recruitment to Non-Technical Class-III posts in the departments on a zonal basis so as to enable candidates from different regions to be absorbed in the vacancies arising within the respective regions and to hold examination as far as possible at different centres and post the successful candidates to the extent possible to their own states/ regions. Accordingly, advertisement was issued for making appointment zone wise on the basis of separate merit list for each zone in respect of the candidates who had appeared in the centers within the same zone. The said zone wise recruitment process was challenged before the Administrative Tribunal, contending inter alia that there should be an All India Merit List, in place of zone wise merit list and on such challenge being repelled by the Administrative Tribunal, the matter went up to the Hon'ble Supreme Court.
45. Before the Hon'ble Supreme Court it was contended by the appellants that the zone wise process of selection adopted by the Commission did not provide equal opportunity to the candidates appearing in different zones though the competitive examination was same in all the zones. It was also contended that since the vacancies available in each zone were not indicated, the appellants were denied the opportunity to appear at the competitive Page No.# 23/29 examination from the centre of a zone where number of vacancies was large, there being more and better chances for selection. It was also argued that the said zone wise selection process was violative of Articles 14 and 16 of the Constitution of India.
46. On the other hand, it was contended on the part of the Union respondents that the said zone wise selection process was adopted in order to enable the candidates from a particular zone to be absorbed in the job in the same zone and this practice had been going on for a long time which ought not to be disturbed. It was also contended that the candidates were free to choose the zone from which they desired to appear in the examination and thus, to choose the centers.
47. The Hon'ble Supreme Court after examining the rival contentions of the parties, held that the purpose and objective for holding a recruitment examination is to select the suitable and best candidates out of the lot and such an object can be achieved by making a common select list of the successful candidates belonging to all the zones. It was held that if the zone wise selection is made then various candidates who appeared in some of the zones and secured more marks than those who are selected from other zones would be deprived of their selection resulting into great injustice and consequent discrimination. Thus, it was held that there was no nexus between the aforesaid process of zone wise selection with the object to be achieved, that is, to select the best candidates and such a process would militate against the principles enunciated in Articles 14 and 16 of the Constitution of India.
It is also to be noted that in Radhe Shyam Singh (supra), the Hon'ble Supreme Court also held that if the Government is keen to make zone wise selection after allocating some posts for each zone, it may make such scheme or rules or adopt such process for selection which may not clash with the provisions contained under Articles 14 and 16 of the Page No.# 24/29 Constitution of India.
48. From the above, what one can say that the zone wise recruitment may be permissible provided appropriate rules are made and necessary notifications are issued to that effect.
49. In the present case, it has not been brought to our notice by the State respondents that there are separate rules framed for district wise recruitment of Tracers. Even though there may be vacancies in the post of Tracer in different districts as contended by the State respondents, it was never made public by way of advertisement as mentioned above. The advertisement does not indicate the district wise availability for the post of Tracers. If it were made known to the applicants that there was no vacancy available for the post of Tracer in Tezpur district, the appellant might not have applied in Tezpur and could have applied in any other district where the vacancies were shown. It was also not informed through the advertisement that candidates appearing in one district/zone could not be considered and appointed in another district/zone.
50. It may be also recalled that the learned Standing Counsel for the State respondents had submitted that the recruitments were made zone/district wise based on zone/district wise merit list on the basis of the Assam Ministerial District Establishment Service Rules, 1967. As discussed above, the said rules are not applicable in the case of the post of Tracer. No rules have been brought to our notice to show that the recruitment to the post of Tracer is to be made district wise based on the district wise merit list. Under such circumstances, we are of the view that the present case will be squarely covered by the decision of the Hon'ble Supreme Court in Radhe Shyam Singh (supra) and as such, the zone wise appointments made including to the posts of Tracer cannot be said to be valid.
51. Coming to the other issue i.e. the contention of the authorities that as there was only Page No.# 25/29 97 posts to be filled up and that the roster point of reservation for orthopedically handicapped persons fell on 100th point which was accepted by the leaned Single Judge, we are unable to agree with the finding of the learned Single Judge.
52. The Office Memorandum dated 29.12.2005 has provided the methodology for determining the roster points of reservation for the person with disabilities. As discussed above, it has been clarified under Para 15 (d) of the said OM that the roster points in 3 different blocks can be applied within the range of each of the blocks i.e. in respect of the first block, appointment can be made against any point within the range of 1 to 33. Similarly, within the second block, the appointment can be made from the any of the points from 34 to 66, and for the third block, the appointment can be made within the points of 67 to 100. The case of the orthopedically physically handicapped comes under the third block as determined by the State Government as mentioned in the affidavit-in-opposition filed by the State respondent no.1 to the writ petition and as such, any person with physically handicapped can be appointed on any point between points 67 to 100. In the present case, the state had contended that the roster point in respect of orthopedically handicapped falls on the 100 th point and the number of posts filled up was 97 and as such, the roster point of the 100 th did not reach, which contention has been accepted by the learned Single Judge.
53. We are of the opinion that in view of Para-15(d) of the OM dated 29.12.2005, it was not necessary to reach the 100th roster point. Since the roster point in respect of orthopedically handicapped person falls within points 67 to 100, the appointment could have been given to the petitioner as the 97 th post falls within points 67 to 100. It has not been brought to our notice that there was any other candidate belonging to the same category Page No.# 26/29 who was more meritorious than the appellant. In fact, the appellant had contended that he was the only candidate belonging to the physically challenged person and no one under the same category had taken part in the recruitment process. Under the circumstances, we are of the view that if the appellant was otherwise qualified in all other aspects and since he was the only qualified candidate in the said category reserved for orthopedically handicapped persons, appointment to the appellant could not have been denied.
54. This takes us to the next stage of consideration, as to whether the appointments of the private respondents, who are all women, were made in excess of the quota reserved for women. In this regard, one may refer to the reply of the authorities dated 15.11.2011 to the application submitted by the appellant under the RTI Act, 2005 wherein it has been mentioned that ten (10) selected candidates had already joined these posts and out of them there were two (2) candidates belonging to Scheduled Tribe (P) category and two (2) belonging to OBC and no one was appointed from any of the physically challenged category. It was also mentioned that there were four (4) women candidates who were appointed as Tracers. In this regard, this Court is of the view that in absence of proper consolidated State wise data before this Court, it would be difficult for this Court to make any observation as to whether the appointment of any of the respondents was beyond the quota reserved for women. As per the documents made available before this Court by the learned Standing Counsel, Irrigation Department, it appears that the appointments have been made district wise on the basis of the district wise merit lists and reservations were worked out for different zones/districts and as such, it is difficult to ascertain on a State wise basis as to how many female candidates were appointed as Tracers against the reserved posts for women.
55. Further, it has also been submitted by the learned counsel for the respondents that Page No.# 27/29 there are other female candidates who had obtained lesser marks than the private respondents, but were given appointment to the post of Tracers but they have not been impleaded as respondents and as such, in the absence of these persons before this Court, it may not be appropriate to disturb the appointment of the private respondents on the ground that their appointments are beyond the quota reserved for women. During the hearing, we had directed the learned Counsel for the State respondents to produce the relevant records of the recruitment process for Tracer and also to show how much the appellant had scored in the tests. The learned Counsel could not inform this Court of the marks obtained by the appellant, nor could produce the records of the recruitment process except for zone/district wise merit list for the post of Tracers. From that what we have noted is that while preparing the zone/district wise merit lists, the number of posts reserved in various categories have been also indicated district/zone wise. Since zone/district wise reservation of posts for various categories has been shown and not State wise, it will be difficult to ascertain whether the number of women candidates appointed exceeds the 30% quota reserved for women. However, since we have already held that zone/district wise merit list is not permissible, we need not examine any further on the issue, except for reiterating that zone/district wise appointment based on zone/district wise merit lists is bad in law. Even if it is assumed that the appointment of women exceeded 30% reserved for women or that the zone/district wise appointments are bad in law, at this point of time, we are of the view that it may not be appropriate to disturb the appointments of any of the private respondents which were made in 2011.
56. In this appeal, we are primarily concerned with the issue whether, the authorities had made any appointment against the reserved post meant for physically challenged person. As Page No.# 28/29 clearly mentioned in the RTI reply by the authorities and also mentioned in the affidavit-in- opposition, no such appointment has been made, which in our opinion is not permissible if there is otherwise eligible candidate available for the same, since one post was to be reserved for the physically handicapped persons. It is not the case of the respondents herein that the appellant was found not qualified. He was found successful in the written test and viva voce. We have also noted, as discussed above that the name of the appellant does not find in the merit list prepared for Tezpur Zone, but that is primarily for the reason that no post has been shown to be reserved for physically handicapped persons. The case of the respondents is that no appointment could have been made against the reserved quota for orthopedically challenged persons as the roster point fell on 100 th point and there were only 97 posts available to be filled up. It was not the case of the respondents that the appellant was found not qualified. We have already discussed above that such a course of action adopted by the authorities is not permissible as the candidate under the orthopedically challenged person can be appointed between the roster points of 67 to 100.
57. Since the district wise recruitment to the post of Tracer is not valid and since, there is not a single person from the reserved category of disabled person, and since there is no better claim by any other candidate who belongs to the same category as the appellant and since it is not the case of the respondent authorities that the appellant was not found to be qualified, the claim of the present appellant cannot be ignored. If the appellant has to be given appointment, the last person appointed to the post of Tracer is to be removed to accommodate the appellant. However, we are of the view that such a course of action at this stage after appointments had been made in the year 2011 would create great prejudice to the candidate for no fault of his/her and accordingly, we are not inclined to adopt the said Page No.# 29/29 course of action. Thus, the only option left before this Court to ensure justice to the present appellant without disturbing the appointment of others already made, including the private respondents at this stage, is to direct the respondent authorities to appoint the appellant to any of the vacant post of the Tracer which may be available. It has however been submitted by the learned counsel for the respondent authorities that the post of Tracer has been abolished now and the same does not exist any longer. If that is so, the appellant can be given appointment to any other post equivalent to the post of Tracer, which may be available, as the right to be appointed of the appellant cannot be extinguished by subsequent non- existence of the post of Tracer. If the authorities had correctly applied the law at the relevant time, the appellant who is otherwise qualified could have been appointed as a Tracer in 2011 itself. The wrong committed to the appellant by the authorities must be righted, which in our view can be done by appointing him to a suitable/equivalent Grade-III post to the post of Tracer. Accordingly, we direct the concerned respondent authorities that this exercise may be undertaken within a period of 1 (one) month from the date of receipt of a certified copy of this order.
58. With the above observations and directions, the present writ appeal stands allowed and disposed of. The judgment and order dated 16.07.2019 passed in WP(C) No.1493/2012 is accordingly set aside.
No order as to costs.
JUDGE JUDGE Comparing Assistant