Gauhati High Court
Bikash Sarma vs Smt Dharitri Kalita And 3 Ors on 9 December, 2019
Bench: Ajai Lamba, Achintya Malla Bujor Barua
Page No.# 1/11
GAHC010210172018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA 272/2018
1:BIKASH SARMA
S/O LATE PRABHAT SARMA, RESIDENT OF SANTIPUR, PO RANGIA, DIST
KAMRUP, ASSAM
VERSUS
1:SMT DHARITRI KALITA AND 3 ORS
W/O HEMANTA KR. NATH
RESIDENT OF AMINGAON, GUWAHATI 781031
DIST KAMRUP ASSAM
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
FINANCE DEPARTMENT
DISPUR
GUWAHATI-781006
DIST KAMRUP M ASSAM
3:THE DEPUTY COMMISSIONER
KAMRUP AMINGAON
GUWAHATI 781031
DIST KAMRUP
ASSAM
4:THE SELECTION BOARD
REPRESENTED BY ITS CHAIRMAN
OFFICE OF THE DEPUTY COMMISSIONER
KAMRUP
AMINGAON
GUWAHATI 781031
DIST KAMRUP ASSA
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Advocate for the Petitioner : MR. U K NAIR
Advocate for the Respondent : SC, FINANCE
BEFORE
HON'BLE THE CHIEF JUSTICE MR. AJAI LAMBA
HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
JUDGMENT
Date : 09-12-2019 (AM Bujor Barua, J.) Heard Mr. U.K. Nair, learned senior counsel for the appellant as well as Mr. K. N. Choudhury, learned senior counsel for the respondent No.1, Mr. B. Gogoi, learned standing counsel for the Finance Department and Mr. T. C. Chutia, learned Additional Senior Govt. Advocate, Assam for the respondents No. 3 and 4.
2. An advertisement bearing No. JANASANYOG/1711/13 was issued by the Deputy Commissioner, Kamrup, Amingaon inviting applications for 8 (eight) number of posts of Junior Accounts Assistant (JAA) in the Office of the Treasury Establishment of Kamrup district. The last date for submission of application was 21.02.2014. The date of the advertisement is stated to be 18.02.2014. Both the appellant as well as the respondent No.1 responded to the advertisement in the prescribed manner and participated in the selection process. As per the notification dated 25.06.2015 providing for the select list, the appellant was at serial No.1 for the unreserved category.
3. As per the advertisement, the 8 (eight) posts of JAA are to be filled up in the manner indicated below:-
a) PH (Low vision) .......... 1 No.
b) U/R............................... 1 No.
c) OBC/MOBC .................. 3 Nos.
d) ST(P) ........................... 1 No.
e) ST (H) .......................... 1 No.
f) SC ................................ 1 No. Page No.# 3/11
4. Pursuant to the selection as per the notification of 25.06.2015, the appellant was issued an appointment letter dated 25.06.2015 and he accordingly joined on 29.06.2015.
5. On 01.10.2015, writ petition WP(C) 6135/2015 was filed by respondent No.1 assailing the minutes of the meeting of the selection board held on 24.06.2015, the notification dated 25.06.2015 of the Deputy Commissioner cum Chairman of the selection board, Kamrup as regards the selection and appointment of the appellant, with a further prayer for a direction to the State respondents to appoint the respondent No.1 in the post of JAA after interfering with the appointment of the appellant.
6. The respondent No.1, in the writ petition, took the stand that in the selection process, the authorities had not complied with the requirements of the Assam Women (Reservation of Vacancies in Services and Posts) Act, 2005 (in short Act of 2005) and the Assam Women (Reservation of Vacancies in Services and Posts) Rules, 2005 ( in short Rules of 2005) , which provides for a reservation of 30% of the vacancies in respect of all appointments to the services and posts in the establishment which are to be filled up by direct recruitment, to be reserved for women candidates. According to respondent No.1, in the establishment of the Treasury Kamrup, there were no women serving as JAA and therefore, by applying the reservation of 30%, the respondent No.1 ought to have been appointed to the post of JAA in the unreserved category instead of the appellant.
7. In the writ petition, a stand was also taken that as per the information received under the RTI, the respondent No.1 was declared to have qualified in the written test amongst 12 (twelve) candidates and for the general category, she was the only woman candidate amongst the 4 (four) to have qualified. Out of the eighteen numbers of post of JAA in the establishment of Treasury Kamrup, 80% thereof are to be filled up by direct recruitment, which as per calculation would be fourteen posts. 50% of 14 being 7, seven numbers of post would be for the unreserved category and by applying the requirement of 30% reservation for women, two of the unreserved posts would have to be reserved for women. As no women were serving as JAA in the establishment of Treasury Kamrup, therefore, the lone vacancy for the unreserved category was required to have been filled up by a woman candidate.
8. The state/writ respondent took the stand that the appellant/private writ respondent having secured more marks on merit than the respondent No.1/writ petitioner, there was no illegality in his appointment. Further the requirement of the Act of 2005 was also given due consideration in the selection process and as no woman candidate was found suitable therefore, none was selected.
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9. As a writ respondent, the appellant took the stand that as out of the eight advertised posts, only one post was for the unreserved category, therefore, if the said post was also kept reserved for woman, then nothing would remain for consideration on merit. The appellant also took a stand that after serving for more than two years now if he would be dislodged by applying the reservation for woman under the Act of 2005, in a circumstance where the appellant was selected on the basis of merit, the same would not be in the interest of justice and in the circumstance the authorities may consider the respondent No.1 against any other vacancy that may be available.
10. The learned Single Judge in the impugned judgment relied upon the pronouncement of the Supreme Court in R.K. Sabharwal and Others Vs. State of Punjab and Others, reported in (1995) 2 SCC 745 wherein it has been held that the percentage of reservation has to be worked out in relation to the numbers of post which form the cadre strength and the concept of 'vacancy' has no relevance in arriving at the percentage of reservation.
The learned Single Judge also took note of Clause-6 of the advertisement of 18.02.2014 which stipulates that there shall be reservation for women as per the government guidelines. Accordingly, a conclusion was arrived that the selection board while considering the matter had failed to take into consideration the requirement to provide for 30% reservation for women. Although the appellant may have served for more than two years, but as the requirements of the Act of 2005 were not taken into consideration, the State respondents were directed to appoint the respondent No.1 to the post of JAA in the unreserved category, which otherwise had been filled up with the appellant and the appellant be considered against any other vacancy that may be available and such appointment again be made only in accordance with law. Accordingly, notification dated 25.06.2015 so far as it concerns the appointment of the appellant was set aside.
11. Being aggrieved by the judgment and order dated 20.08.2018, the intra court appeal has been preferred.
12. Mr. U. K. Nair, learned senior counsel for the appellant has raised the following contentions:-
a) There being only one post of JAA for the unreserved category, 30% thereof cannot be carved out and hence, the reservation of 30% cannot be made applicable.
b) As reservation for women is a horizontal reservation, the concept of compartmentalised horizontal reservation, as held by the Supreme Court in Anil Kumar Gupta and Others -vs- State of U.P. and Others reported in (1995) 5 SCC 173 in paragraph 17 and as provided in first proviso to Section 4 of the Act of 2005 would be applicable and therefore, the 30% reservation would have to be Page No.# 5/11 in respect of the vacancy of a given category.
c) As held by the Supreme Court in Union of India and Another -vs- National Federation of the Blind and Others reported in (2013) 10 SCC 772 the decision in R.K. Sabharwal (supra) for working out the percentage of reservation on the basis of cadre strength would be inapplicable in case of horizontal reservation.
13. Per contra Mr. K. N. Choudhury, learned senior counsel for respondent No.1/writ petitioner seeks to give a different interpretation to paragraph 49 in National Federation of the Blind (supra) by making a distinction that the conclusion in R.K. Sabharwal (supra) would not be applicable as the said decision is not with regard to the question whether for giving effect to a horizontal reservation the workout would be cadre strength based or vacancy based and on the other hand, it was in respect of some other purpose.
14. For the reasons given herein below, we need not advert to and adjudicate the grounds taken by learned counsel for the parties. Uncontroverted facts and circumstances which we shall deal hereinbelow indicate that the cause of action arose in favour of respondent No.1/writ petitioner on the issuance of the advertisement itself on 18.02.2014. The said writ petitioner, however, did not challenge the advertisement at appropriate stage. Without challenging the advertisement no relief can be granted in favour of the writ petitioner.
15. So far as provision for 30% reservation for women is concerned, we are required to take note of relevant provisions from the Act of 2005 and the Rules of 2005.
Section 4 of the Act of 2005 reads as under:
Reservation for women in vacancies to be filled up by direct recruitment- At the commencement of this Act, 30 percent of the vacancies in respect of all appointments to the services and posts in the establishment which are to be filled up by direct recruitment shall be reserved for the women candidates.
Provided that the aforesaid reservation shall be inclusive of the reservation provided statutorily or otherwise of the Scheduled Castes, Scheduled Tribes (Plains), Scheduled Tribes (Hills), Other Backward Classes, More Other Backward Classes and persons with disabilities within the respective reserved category;
Provided further that 30 percent reservation of the vacancies in respect of the Women for the remaining unreserved Category of candidates shall be available to the Women of unreserved category only.
16. The procedure to be followed to give effect to the requirement of 30% reservation for women is provided under Rule 3 of the Rules of 2005 which is as follows:-
Page No.# 6/11 Direct recruitment- Direct recruitment through Assam Public Service Commission or Selection Committee/Board- While filling up vacancies by direct recruitment on the basis of the recommendation of the APSC or the Selection Committee/Board as the case may be, the following procedure shall be followed-
(1) While making a request to the APSC or the Selection Committee/Board for recommending candidates for direct recruitment, the Appointing Authority shall also furnish the information about reservations in favour of candidates belonging to women. (2) The APSC or the Selection Committee/Board as the case may be shall furnish its recommendation about such number of Women candidates in order of preference for appointment.
(3) The Appointing Authority shall make the appointment of Women candidates on 30% basis as has been shown in schedule of this rules.
(4) In case of non availability of adequate number of candidates belonging Women for the appointment, the post should be filled up by the respective reserved/un-reserved male candidates, to which the post is meant.
(5) The Appointing Authority shall consider the list in accordance with the provisions of the respective service rules and shall also consult the APSC where such consultation is necessary and shall finally approve the list.
(6) The Seniority of the Candidate so appointed shall be determined in order of preference shown in the combined list furnished by the APSC or by the Selection Committee/Board.
17. Rule 3 (1) of the Rules of 2005 provides that while making a request to the APSC or the selection board for recommending candidates for direct recruitment, the appointing authority shall also furnish the information about reservations in favour of the women candidates.
18. Rule 3(1) of the Rules of 2005 is a clear indication that the vacancies against which the reservation is to be given effect in the process of direct recruitment, would have to be determined by the appointing authority before the request for initiating the process for direct recruitment is made to the APSC or the selection board. It being so, the appropriate information as to which of the advertised vacancies would be subjected to reservation for women would be clearly stated in the advertisement itself.
19. The said interpretation of the provision of Rule 3(1) of the Rules of 2005 would also be in conformity with the proposition laid down by the Supreme Court also in paragraph-17 of its pronouncement in Anil Kumar Gupta (supra) which is as follows:-
In other words the notification inviting applications should itself state not only the percentage of horizontal reservation(s) but should also specify the number of seats reserved for them in each of the social reservation categories, viz, ST, SC, OBC and OC. If this is not done there is always a possibility of one or the other vertical reservation category suffering prejudice as has happened in this case.
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20. So far as reservation for women is required to be made horizontally or vertically is concerned, we would like to refer to judgment rendered by the Hon'ble Supreme Court of India in Rajesh Kumar Daria -vs- Rajasthan Public Service Commission and others , reported in (2007) 8 SCC 785.
21. We take note of Rajesh Kumar Daria (supra) wherein, in paragraph-9 it had been held as under:-
"9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservation 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 number will not be counted against the quota reserved for 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 that 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 Indra Sawhney, R. K. Sabharwal Vs. State of Punjab, Union of India v. Virpal Singh Chauhan and Ritesh R. Sah v. Dr. Y. L. Yamul ). 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 Caste women. "If the number of women in such list is equal to our 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. "
22. Following the said proposition, the Division Bench of this High Court in Ratul Kumar Das and others -vs- State of Assam and others , reported in 2009 (4) GLT 648 in paragraph-43 has held as under:-
"43 ) The law laid down by the Apex Court in the aforesaid cases has clearly and categorically laid down that reservation for women is a horizontal reservation and is not over and above the vertical reservation provided to different categories like S. C, S. T. O. B. C. etc. Under the Reservation for Women Act of Assam, 30% of the posts are reserved for women within each category i. e. open, S. C. , S. T. , O. B. C. etc. In the event the select list prepared on the basis of merit for each category already includes the requisite number of women candidates no further exercise is required to be performed. However, if there is a shortfall of women candidates in order of merit will replace the last of the male candidates. This is the essence of the application of the law relating to reservation under the Reservation for Women Act of Assam."
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23. When we look into the advertisement of 18.02.2014 in context of provisions of Rule 3 of the Rules of 2005 and judgment rendered by the Hon'ble Supreme Court of India in Anil Kumar Gupta's case (supra), we notice that apart from stating in Clause-6 thereof that the government guidelines for women reservation would be followed, no other information is provided as to which of the vacancies so advertised would be reserved for women candidates. The advertisement does not provide as to how many women candidates are required to be selected so as to give effect to reservation under the Act of 2005.
Accordingly, we are of the view that the advertisement of 18.02.2014 itself was an aberration of the required procedure of law for not taking into consideration the provisions of the Act of 2005 and the Rules of 2005 read with the proposition laid down by the Supreme Court. The respondent No.1/writ petitioner was required to challenge the advertisement itself at the appropriate stage, which, however, has not been done.
24. At the same time, we also take note of that the advertisement was of 18.02.2014, the select list was of 25.06.2015 where the appointment letter was issued to the appellant was also on 25.06.2015 and the appellant joined on 29.06.2015, but the writ petition WP(C) 6135/2015 was filed on 01.10.2015. A prayer was made in the writ petition for interfering with the minutes of the selection board held on 24.06.2015 and the notification dated 25.06.2015 by which the appellant/writ respondent was appointed, although a further prayer was made for appointing the respondent No.1/writ petitioner to the post where the appellant/writ respondent was appointed.
25. Although evidently advertisement of 18.02.2014 itself was vitiated for not having complied with the requirements of law, the advertisement had not been assailed in the writ petition. It being so, if the advertisement in its present form was acceptable to the respondent No.1 the selection process conducted on its basis cannot remain vitiated merely because according to the respondent No.1 the requirements of the Act of 2005 was not followed. In other words the cause of action for the respondent No.1 may have arisen against the advertisement of 18.02.2014 but the respondent on its own volition had not availed the opportunity by assailing the advertisement and on the other hand, had willingly participated in the selection process initiated on its basis.
26. Further although the selection process culminated in the notification of selection dated 25.06.2015 and the appellant appointed and joined by 29.06.2015, the writ petition assailing the selection and appointment was filed on 01.10.2015. By doing so not only there is a delay in approaching the court, but no explanation thereof is also forthcoming from the respondent No.1 as regards the delay. In the meantime, the appellant having been appointed on 25.06.2015 had joined Page No.# 9/11 on 29.06.2015, and having continued in his post all throughout, it would again be inequitable to interfere with his appointment as has been done in the judgment and order 20.08.2018, i.e. after about three years of having continued in his appointment.
27. In M.R. Gupta Vs. Union of India & Others reported in (1995) 5 SCC 628 the Supreme Court had the occasion to deal with the concept of continuing wrong which had given a rise to a recurring cause of action. In the said case, which related to an incorrect initial pay fixation, a view was taken that a fresh cause of action arose every month when the incumbent therein was paid his monthly salary on the basis of a wrong computation. In paragraph 5 of the said judgment, the Supreme Court has held as under:
"5......The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc., would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation, the application cannot be treated as time barred........."
28. In Shiv Dass vs. Union of India , reported in (2007) 9 SCC 274, the Supreme Court in paragraphs 8 and 10 had held as under:
"8......The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.
10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition.......... If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years."
29. A conjoint reading of the propositions laid down in M.R. Gupta (supra) and Shiv Dass (supra) would show that a clear distinction is made between assailing a decision which results in a continuous Page No.# 10/11 wrong giving rise to recurring cause of action and a decision having the effect of causing confusion and public inconvenience and also injustice on third parties, if assailed after a delay.
30. Summarizing the two propositions as to when a delay in assailing a decision is condonable and as to where the delay would render the claim stale resulting in the application of the doctrine of laches, the Supreme Court in paragraph-7 of its pronouncement in Union of India and Others Vs. Tarsem Singh reported in (2008) 8 SCC 648 has held as under:
"7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied....."
31. The Supreme Court had made it explicitly clear that if the decision assailed results in a continuing wrong giving rise to a continuous cause of action and creates a continuous source of injury, it would be an exception to the rule of rejecting it on the ground of delay and laches. But again there is an exception to the exception and if the grievance is in respect of any order or administrative decision which related to or affected others, and if the reopening of the issue would affect the settled rights of third parties, then the claim would not be entertained.
32. In the instant case, as already noted, the respondent No.1 had the cause of action to assail the advertisement of 18.02.2014, which apparently had been issued de hors the Act of 2005. The official respondents were required to issue the advertisement in compliance of Rule 3 of the Rules of 2005 while specifying the number of women to be recommended to give effect to 30% reservation. The needful evidently was not done. But the respondent No.1 willingly participated in the selection process pursuant to the advertisement, without assailing it.
33. Further even after the selection results were declared the respondent No.1/writ petitioner had allowed the State authorities to act upon the selection and appoint the appellant. Thereafter also the respondent No.1/writ petitioner allowed the appellant to join and serve in his post for a period of almost four months. Even after his appointment was assailed, the appellant continued to remain in his post during the pendency of the writ petition.
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34. In the given circumstance, we find that not only the advertisement of 18.02.2014 which gave a cause of action to the respondent No.1 was not assailed, the respondent No.1 also allowed the appellant to join and continue in his service for a period of almost four months. The conduct of the respondent No.1 gave rise to a third party right in favour of the appellant. Further, the nature of the decision assailed by the respondent No.1 does not result in a continuous wrong, nor it creates a continuing source of injury. As observed in earlier part of this judgment in reference to various judgments rendered by the Hon'ble Supreme Court of India, the petition filed by respondent No.1/writ petitioner suffered from the vice of delay and, therefore, could not have been entertained.
35. As a result, we are of the view that the writ petition WP(C) 6135/2015 suffers from delay and laches which does not warrant a benefit in favour of the respondent No.1/writ petitioner for setting aside the order of appointment dated 25.06.2015.
36. In view of the above, we hereby set aside judgment dated 20.08.2018 rendered by learned Single Judge in WP(C) 6135/2015. Writ appeal is, accordingly, allowed.
37. Interim order passed on 03.10.2018 stands vacated.
JUDGE CHIEF JUSTICE Comparing Assistant