Meghalaya High Court
Shri Amar Singh vs State Of Meghalaya on 19 July, 2017
Author: Sr Sen
Bench: Sr Sen
1
THE HIGH COURT OF MEGHALAYA
AT SHILLONG.
WP(C) No. 103 of 2016
Shri Amar Singh,
Son of Shri Asharfilal Singh,
Resident of Jail Complex
New Tura, Jail Complez
West Garo Hills District,
Meghalaya. ... Petitioner
- Versus -
1. The State of Meghalaya,
Represented by the Commissioner and
Secretary, to the Govt. of Meghalaya,
Home (Jail) Department,
Shillong.
2. The Director General of Prisons,
Shillong, Meghalaya.
3. The Inspector General of Police (E/R),
Shillong, Meghalaya.
4. The Inspector General of Police (W/R),
Tura, Meghalaya.
5. The Chairman,
Prison Recruitment Board,
Shillong, Meghalaya. ... Respondents.
WP(C) No. 82 of 2016
Shri. Ranjen Balmiki,
Son of (L) Prem Kumar Balmiki,
Resident of Jail Complex
(Dobetkolgre),
Williamnagar,
East Garo Hills District,
Meghalaya. ... Petitioner
- Versus -
2
1. The State of Meghalaya,
Represented by the Commissioner and
Secretary to the Govt. of Meghalaya,
Home (Jail) Department,
Shillong.
2. The Director General of Prisons,
Shillong, Meghalaya.
3. The Inspector General of Police (E/R),
Shillong, Meghalaya.
4. The Inspector General of Police (W/R),
Tura, Meghalaya.
5. The Chairman,
Prison Recruitment Board,
Shillong, Meghalaya.
6. Shri Jenybirth Marak,
R/o Jail Complex New Tura,
P.O. Araimile, 794101,
West Garo Hills, Meghalaya.
7. Shri Dilrak N. Sangma,
P.O. Williamnagar
C/o Withonsing D. Sangma,
VI - Balsrigittim, East Garo Hills District,
Meghalaya - 794111.
8. Shri Faustine C.R. Sangma,
Lower Hawakhana, Tura,
West Garo Hills,
Meghalaya - 794101.
9. Shri Akriston R. Marak,
P.O. Barengarpara, Vill. Koinabhui,
West Garo Hills, Meghalaya-794103.
10. Shri John N. Areng,
P.O. Mangsang,
Vill. Mangsang, Balsri A. Ding,
East Garo Hills, Meghalaya-794110.
11. Shri Vivek Trenier M. Sangma,
R/o Mody Nagar, Tura, West Garo Hills,
Meghalaya-794001.
3
12. Shri Chaseng A. Sangma,
P.O. Mandipathar, Vill. Tangsim A. We,
North Garo Hills,
Meghalaya-794112.
13. Shri. Nengman M. Sangma,
C/o Trument Sangma,
Jail Williamnagar, East Garo Hills,
Meghalaya-794111.
14. Shri Lastil N. Marak,
P.O. Williamnagar,
Jail Complex, District Jail, Williamnagar,
East Garo Hills District,
Meghalaya-794111.
15. Shri Kanu T. Sangma,
P.O. Williamnagar,
Village-Employment Exchange Office,
East Garo Hills District,
Meghalaya-794111.
16. Shri. Latush Ch. Marak,
R/o Nrngmandolgri,
P.O. Williamnagar,
East Garo Hills District,
Meghalaya-794111.
17. Shri. Dentu D. Marak,
C/o Senbirth G. Momin,
House No. 222, Akonggre, Tura,
West Garo Hills District, P.O. Tura,
Meghalaya-794001.
18. Shri. Richard N. Sangma,
Village-Dobetkolgre, Jail Complex,
East Garo Hills District,
Meghalaya-794111
19. Shri. Winterson Marak,
C/o Francis Sangma,
Rynjah Police Quarter,
East Khasi Hills, Meghalaya-793006
20. Shri. Siljrang D. Shira,
Tura Agillanggre,
P.O. Araimile, West Garo Hills District,
Meghalaya-794101
4
21. Prasanta B. Marak,
C/o Rajesh Sangma
Dr. Kurbah Residence, Lawsohtun
Block/4, Shillong, East Khasi Hills District,
Meghalaya-793004
22. Rex Ch. Marak,
Matchakolgre Tura,
West Garo Hills, Meghalaya.
23. Shri. Baren G. Sangma, Megonggre,
P.O. Garobadha, West Garo Hills District,
Meghalaya.
24. Shri. Monush D. Sangma,
C/o Shilda D. Sangma,
Reserve Gittim, Tura,
West Garo Hills District,
Meghalaya-794101
25. Shri. Jackshan M. Marak,
R/o Dorambokgre, P.O. Mukdangra,
West Garo Hills District,
Meghalaya-794105
26. Shri. Racha G. Momin,
P.O. Resubelpara, Village-Resu Haluapara,
North Garo Hills District,
Meghalaya-794108
27. Shri. Nangera M. Sangma,
C/o Riyalang Shylla Nongmynsong
Umkaliar, Shillong, East Khasi Hills
District, Meghalaya-793019
28. Shri. Marthin R. Marak,
C/o Shri. Prickash Ch. Sangma,
Rongrengiri Government Higher
Secondary School,
East Garo Hills,
Meghalaya-794111
29. Shri. Tengran S. Sangma,
Tura Jail, Doldigre Tura,
West Garo Hills District,
Meghalaya.
5
30. Shri. Paulus N. Sangma,
C/o DP.O.R, Resubelpara,
North Garo Hills District,
Meghalaya-794108
31. Shri. Suruv Momin,
P.O. Mawiong,
C/o Prodip Borah, 1st MLP BN
Mawiong, Shillong,
East Khasi Hills District,
Meghalaya-793016
32. Shri. Chimnoy Hajong,
P.O. Laban, C/o Membersuun
Strealet, Road Laban,
East Khasi Hills District,
Meghalaya-793004
33. Shri. Ranodhir Hajong,
C/o R.P. Mawrie, Near Lumlang Girls
Hostel, Upp. New Colony,
East Khasi Hills District,
Meghalaya-793003
34. Shri. Jubaraj Boro,
P.O. Tikrikilla,
Village-Kathal Bari,
West Garo Hills District,
Meghalaya-794109. ... Respondents.
WP(C) No. 85 of 2016
Shri. Bhakta Prallad Das,
Son of Shri Babesh Das,
Resident of Shillong Jail Compound,
East Khasi Hills District,
Meghalaya-793001 ... Petitioner
- Versus -
1. The State of Meghalaya,
Represented by the Commissioner and
Secretary to the Govt. of Meghalaya,
Home (Jail) Department, Shillong.
2. The Director General of Prisons,
Shillong, Meghalaya.
6
3. The Inspector General of Police (E/R),
Shillong, Meghalaya.
4. The Inspector General of Police (W/R),
Tura, Meghalaya.
5. The Chairman,
Prison Recruitment Board,
Shillong, Meghalaya.
6. Shri Jenybirth Marak,
R/o Jail Complex New Tura,
P.O. Araimile, 794101,
West Garo Hills, Meghalaya.
7. Shri Dilrak N. Sangma,
P.O. Williamnagar
C/o Withonsing D. Sangma,
VI - Balsrigittim, East Garo Hills District,
Meghalaya - 794111.
8. Shri Faustine C.R. Sangma,
Lower Hawakhana, Tura,
West Garo Hills,
Meghalaya - 794101.
9. Shri Akriston R. Marak,
P.O. Barengarpara, Vill. Koinabhui,
West Garo Hills, Meghalaya-794103.
10. Shri John N. Areng,
P.O. Mangsang,
Vill. Mangsang, Balsri A. Ding,
East Garo Hills, Meghalaya-794110.
11. Shri Vivek Trenier M. Sangma,
R/o Mody Nagar, Tura, West Garo Hills,
Meghalaya-794001.
12. Shri Chaseng A. Sangma,
P.O. Mandipathar, Vill. Tangsim A. We,
North Garo Hills,
Meghalaya-794112.
7
13. Shri. Nengman M. Sangma,
C/o Trument Sangma,
Jail Williamnagar, East Garo Hills,
Meghalaya-794111.
14. Shri Lastil N. Marak,
P.O. Williamnagar,
Jail Complex, District Jail, Williamnagar,
East Garo Hills District,
Meghalaya-794111.
15. Shri Kanu T. Sangma,
P.O. Williamnagar,
Village-Employment Exchange Office,
East Garo Hills District,
Meghalaya-794111.
16. Shri. Latush Ch. Marak,
R/o Nrngmandolgri,
P.O. Williamnagar,
East Garo Hills District,
Meghalaya-794111.
17. Shri. Dentu D. Marak,
C/o Senbirth G. Momin,
House No. 222, Akonggre, Tura,
West Garo Hills District, P.O. Tura,
Meghalaya-794001.
18. Shri. Richard N. Sangma,
Village-Dobetkolgre, Jail Complex,
East Garo Hills District,
Meghalaya-794111
19. Shri. Winterson Marak,
C/o Francis Sangma,
Rynjah Police Quarter,
East Khasi Hills, Meghalaya-793006
20. Shri. Siljrang D. Shira,
Tura Agillanggre,
P.O. Araimile, West Garo Hills District,
Meghalaya-794101
21. Prasanta B. Marak,
C/o Rajesh Sangma
Dr. Kurbah Residence, Lawsohtun
Block/4, Shillong, East Khasi Hills District,
Meghalaya-793004
8
22. Rex Ch. Marak,
Matchakolgre Tura,
West Garo Hills, Meghalaya.
23. Shri. Baren G. Sangma, Megonggre,
P.O. Garobadha, West Garo Hills District,
Meghalaya.
24. Shri. Monush D. Sangma,
C/o Shilda D. Sangma,
Reserve Gittim, Tura,
West Garo Hills District,
Meghalaya-794101
25. Shri. Jackshan M. Marak,
R/o Dorambokgre, P.O. Mukdangra,
West Garo Hills District,
Meghalaya-794105
26. Shri. Racha G. Momin,
P.O. Resubelpara, Village-Resu Haluapara,
North Garo Hills District,
Meghalaya-794108
27. Shri. Nangera M. Sangma,
C/o Riyalang Shylla Nongmynsong
Umkaliar, Shillong, East Khasi Hills
District, Meghalaya-793019
28. Shri. Marthin R. Marak,
C/o Shri. Prickash Ch. Sangma,
Rongrengiri Government Higher
Secondary School,
East Garo Hills,
Meghalaya-794111
29. Shri. Tengran S. Sangma,
Tura Jail, Doldigre Tura,
West Garo Hills District,
Meghalaya.
30. Shri. Paulus N. Sangma,
C/o DP.O.R, Resubelpara,
North Garo Hills District,
Meghalaya-794108
9
31. Shri. Suruv Momin,
P.O. Mawiong,
C/o Prodip Borah, 1st MLP BN
Mawiong, Shillong,
East Khasi Hills District,
Meghalaya-793016
32. Shri. Chimnoy Hajong,
P.O. Laban, C/o Membersuun
Strealet, Road Laban,
East Khasi Hills District,
Meghalaya-793004
33. Shri. Ranodhir Hajong,
C/o R.P. Mawrie, Near Lumlang Girls
Hostel, Upp. New Colony,
East Khasi Hills District,
Meghalaya-793003
34. Shri. Jubaraj Boro,
P.O. Tikrikilla,
Village-Kathal Bari,
West Garo Hills District,
Meghalaya-794109. ... Respondents.
WP(C) No. 102 of 2016
Shri. Jitendra Thakur,
C/o Santosh Thakur,
District Jail Compound,
Jail Road,
East Khasi Hills District,
Meghalaya-793001. ... Petitioner
- Versus -
1. The State of Meghalaya,
Represented by the Commissioner and
Secretary to the Govt. of Meghalaya,
Home (Jail) Department, Shillong.
2. The Director General of Prisons,
Shillong, Meghalaya.
10
3. The Inspector General of Police (E/R),
Shillong, Meghalaya.
4. The Inspector General of Police (W/R),
Tura, Meghalaya.
5. The Chairman,
Prison Recruitment Board,
Shillong, Meghalaya. ... Respondents.
BEFORE
THE HON'BLE MR JUSTICE SR SEN
For the Petitioners : Mr. K. Paul, Adv.
For the Respondent s : Ms. G. Deka, Sr. GA
Mr. D. Mazumdar, Sr. Adv.
Mr. K.P. Bhattacharjee, GA
Date of hearing : 29.05.2017, 30.05.2017, 15.06.2017,
05.07.2017 & 10.07.2017.
Date of Judgment & Order : 19.07.2017
JUDGMENT AND ORDER
Heard Mr. K. Paul, learned counsel for the petitioners as well as
Ms. G. Deka, learned Sr. GA and Mr. D. Mazumdar, learned Sr. counsel
assisted by Mr. K.P. Bhattacharjee, learned GA for the State respondents.
2. In WP(C) No. 103 of 2016 the brief fact of the petitioner's case in
a nutshell is that:
"This is an application under Article 226 of the
constitution of India for issuance of a writ in
the nature of Mandamus and/or Certiorari
and/or any other writ, order or direction
assailing the entire selection process
culminating into publication of the select list
11
(Annexure-7) for the post of (Cook) Male in
the Prisons Department, Meghalaya.
The brief facts of the case are that in
the year 2015 an advertisement vide memo
No. PRI50/2015/3 dated 21.05.2015 was
published by the Respondent No. 5 Chairman,
Prisons Recruitment Board inviting
applications from eligible candidates for
recruitment of 4(four) posts of Cook(Male) in
Prisons Department, Meghalaya and having
passed in the Physical Test, the petitioner
appeared for personal interview and secured
124 marks out of 150 marks and subsequently
the select/Merit list was published wherein the
Petitioner did not find a place among those
4(four) candidates shortlisted for appointment
in-spite of him secured more marks than the
successful candidates in the said personal
interview and after having all requisite
qualifications. Moreover in the Select/Merit
List, only the names of candidates belonging
to schedule tribes (Khasi/Jaintia and Garo)
are shown. More shockingly there is no list for
Open Category candidates. Furthermore the
advertisement dated 21.05.2015 as well as
the Recruitment Rules notified on 06.04.2015
nowhere discloses the number of reserved
posts to be filled up annually therefore leading
to the inevitable inference that all the posts
were advertised as general category posts. As
such the action of the Respondents in
selecting ST candidates against all the 4
(four) posts is absolutely illegal and perverse
and unconstitutional. The entire selection
process thus being marred is scrutinized in
the back drop of settled law in this regard with
procedural lapses and driven with an oblique
motive of encouraging cent percent
reservation.
As such being aggrieved and
dissatisfied with the entire selection process,
12
the petitioner has approached this Hon‟ble
Court for redressal of his genuine grievance."
In WP(C) No. 82 of 2016 "This is an
application under Article 226 of the
constitution of India for issuance of a writ in
the nature of Mandamus and/or Certiorari
and/or any other writ, order or direction
assailing the entire selection process
culminating into publication of the select list
(Annexue-9) for the post of Male Warder in
the Prisons Department, Meghalaya.
The brief facts of the case are that in
the year 2015 an advertisement vide memo
No. PRI50/2015/3 dated 21.05.2015 was
published by the Respondent No. 5 Chairman,
Prisons Recruitment Board inviting
applications from eligible candidates for
recruitment of 60(sixty) posts of Warder
(Male) in Prisons Department, Meghalaya and
having passed in the Physical Test, the
petitioner appeared for personal interview and
secured 106 marks out of 150 marks and
subsequently the select/Merit list was
published wherein the Petitioner did not find a
place among those 65 candidates shortlisted
for appointment in-spite of him secured more
marks than the successful candidates in the
said personal interview and after having all
requisite qualifications. Moreover in the
Select/Merit List, only the names of
candidates belonging to schedule tribes
(Khasi/Jaintia and Garo) are shown. More
shockingly there is no list for SC/ OBC
candidates even though the State Reservation
Policy vide Resolution No. PER.222/71/138
dated 12.01.1972 provides for 5% reservation
for candidates who are schedule Castes and
OBC. Furthermore the advertisement dated
21.05.2015 as well as the Recruitment Rules
13
notified on 06.04.2015 nowhere discloses the
number of reserved posts to be filled up
annually therefore leading to the inevitable
inference that all the posts were advertised as
general category posts. As such the action of
the Respondents in selecting ST/SC
candidates against open category posts is
absolutely illegal and perverse and
unconstitutional. Furthermore by not holding
any written examination where qualitative
assessment of candidates could be done on
the same set of questions thereby paving the
way for merit to be the touch stone in deciding
the candidature, the Respondents have
actually sought to subvert the Constitutional
mandate. The entire selection process thus
being marred is scrutinized in the back drop of
settled law in this regard with procedural
lapses and driven with an oblique motive of
encouraging cent percent reservation.
As such being aggrieved and
dissatisfied with the entire selection process,
the petitioner has approached this Hon‟ble
Court for redressal of his genuine grievance."
In WP(C) No. 85 of 2016 "This is an
application under Article 226 of the
constitution of India for issuance of a writ in
the nature of Mandamus and/or Certiorari
and/or any other writ, order or direction
assailing the entire selection process
culminating into publication of the select list
(Annexue-8) for the post of Male Warder in
the Prisons Department, Meghalaya.
The brief facts of the case are that in
the year 2015 an advertisement vide memo
No. PRI50/2015/3 dated 21.05.2015 was
published by the Respondent No. 5 Chairman,
Prisons Recruitment Board inviting
14
applications from eligible candidates for
recruitment of 60 posts of Warder (Male) in
Prisons Department, Meghalaya and having
passed in the Physical Test, the petitioner
appeared for personal interview and secured
105 marks out of 150 marks and subsequently
the select/Merit list was published wherein the
Petitioner did not find a place among those 65
candidates shortlisted for appointment in-spite
of him secured more marks than the
successful candidates in the said personal
interview and after having all requisite
qualifications. Moreover in the Select/Merit
List, only the names of candidates belonging
to schedule tribes (Khasi/Jaintia and Garo)
are shown. More shockingly there is no list for
SC/ OBC candidates even though the State
Reservation Policy vide Resolution No.
PER.222/71/138 dated 12.01.1972 provides
for 5% reservation for candidates who are
schedule Castes and OBC. Furthermore the
advertisement dated 21.05.2015 as well as
the Recruitment Rules notified on 06.04.2015
nowhere discloses the number of reserved
posts to be filled up annually therefore leading
to the inevitable inference that all the posts
were advertised as general category posts. As
such the action of the Respondents in
selecting ST/SC candidates against open
category posts is absolutely illegal and
perverse and unconstitutional. Furthermore by
not holding any written examination where
qualitative assessment of candidates could be
done on the same set of questions thereby
paving the way for merit to be the touch stone
in deciding the candidature, the Respondents
have actually sought to subvert the
Constitutional mandate. The entire selection
process thus being marred is scrutinized in
the back drop of settled law in this regard with
procedural lapses and driven with an oblique
15
motive of encouraging cent percent
reservation.
As such being aggrieved and
dissatisfied with the entire selection process,
the petitioner has approached this Hon‟ble
Court for redressal of his genuine grievance."
In WP(C) No. 102 of 2016 "This is an
application under Article 226 of the
constitution of India for issuance of a writ in
the nature of Mandamus and/or Certiorari
and/or any other writ, order or direction
assailing the entire selection process
culminating into publication of the select list
(Annexue-7) for the post of Naik AB (Male) in
the Prisons Department, Meghalaya.
The brief facts of the case are that in
the year 2015 an advertisement vide memo
No. PRI50/2015/3 dated 21.05.2015 was
published by the Respondent No. 5 Chairman,
Prisons Recruitment Board inviting
applications from eligible candidates for
recruitment of 11 (eleven) posts of Naik AB
(Male) in Prisons Department, Meghalaya and
having passed in the Physical Test, the
petitioner appeared for personal interview and
secured 100 marks out of 150 marks
respectively and subsequently the select/Merit
list was published wherein the Petitioners did
not find a place among those four candidates
shortlisted for appointment in-spite of him
secured more marks than the successful
candidates in the said personal interview and
after having all requisite qualifications.
Moreover in the Select/Merit List, only the
candidates belonging to schedule tribes are
selected in the Open Category. Furthermore
the advertisement dated 21.05.2015 as well
as the Recruitment Rules notified on
06.04.2015 nowhere discloses the number of
16
reserved posts to be filled up annually
therefore leading to the inevitable inference
that all the posts were advertised as general
category posts. As such the action of the
Respondents in selecting ST/SC candidates
against open category posts is absolutely
illegal and perverse and unconstitutional in as
much as it is settled law that reservation
under Article 16 (4) cannot be given such
wide interpretation, such that it defeats the
very purpose and object of Article 16 (1) of
Constitution of India and relaxation if any are
to be customized so as to create a level
playing field rather than give undue advantage
to a certain section or set of candidates.
Furthermore by not holding any written
examination where qualitative assessment of
candidates could be done on the same set of
questions thereby paving the way for merit to
be the touch stone in deciding the
candidature, the Respondents have actually
sought to subvert the Constitutional mandate.
The entire selection process thus being
marred is scrutinized in the back drop of
settled law in this regard with procedural
lapses and driven with an oblique motive of
encouraging cent percent reservation.
As such being aggrieved and
dissatisfied with the entire selection process,
the petitioner has approached this Hon‟ble
Court for redressal of his genuine grievance."
3. The learned counsel for the petitioners argued that in pursuant to
the advertisement dated 21.05.2015 issued by the Office of the Director
General of Prisons, Meghalaya, Shillong the petitioners, Shri Amar Singh
applied for the post of (Cook) Male, Shri. Rajen Balmiki applied for the post of
Male Warder, Shri. Bhakta Prallad Das applied for the post of Male Warder
and Shri Jitendra Thakur applied for the post of Naik AB (Male) and further
17
argued that the said petitioners mentioned above, despite having passed the
physical test and personal interview and having scored more than the
successful candidates were not selected.
The learned counsel further contended that the petitioner, Shri
Amar Singh secured 300 marks out of 300 marks i.e. the full marks in the
physical test, and was placed under serial No. 101; in the personal interview
he also secured 124 marks out of 150 marks and was placed under serial No.
67.
The Petitioner, Shri. Rajen Balmiki secured 300 marks out of 300
marks i.e. the full mark in the physical test, and was placed under serial No.
343; in the personal interview he secured 106 marks out of 150 marks and
placed under serial No. 242.
The petitioner, Shri Bhakta Prallad Das secured 300 marks out of
300 marks i.e. the full marks in the physical test, and was placed under serial
No. 277; in the personal interview he secured 105 marks out of 150 marks
and was placed under serial No. 187.
The petitioner, Shri Jitendra Thakur secured 300 marks out of 300
marks i.e. the full marks in the physical test, and was placed under serial No.
84; in the personal interview he secured 100 marks out of 150 marks and was
placed under serial No. 84. However, the above petitioners were not selected
despite having secured good marks in the Open Category (General Quota)
and instead it is found that other candidates belonging to reserved category
had been placed in the general quota. The learned counsel further argued
that the selected list had amounted to cent percent reservation, as such the
entire selection list is malafide and against the principle of Constitutional
mandate as well as the State Government policy.
4. In support of his submission, the learned counsel for the
petitioners relied on the following judgments which are as under:
(i) Indra Sawhney and Ors v. Union of India: 1992 Supp (3)
SCC 210 Page 210.
18
(ii) Jitendra Kumar Singh and Anr v. State of Uttar Pradesh
and Ors: (2010) 3 SCC Page 119
(iii) M. Nagaraj and Ors v. Union of India and Ors: (2006) 8
SCC Page 212
(iv) Post Graduate Institute of Medical Education and
Research, Chandigarh v. Faculty Association and Ors:
(1998) 4 SCC Page 1
(v) Triloki Nath and Anr v. The State of Jammu and
Kashmir and Ors: AIR 1967 SC Page 1283.
(vi) Lila Dhar v. State of Rajasthan and Ors: (1981) 4 SCC
Page159
(vii) Anil Chandra and Ors v. Radha Krishna Gaur and Ors:
(2009) 9 SCC Page 454
(viii) Dr. Pradeep Jain and Ors. v. Union of India and Ors:
(1984) 3 SCC 654
5. On the other hand, Ms. G. Deka, learned Sr. GA submits that the
selection list was based on Government policy and the Government can fill
up the vacancy as per their suitability. However, she could not satisfy the
Court, on whether reservation can be on the whims and will of the State or by
following the mandate of law. In support of her submission, the learned Sr.
GA for the State respondents relied on the following judgments which are as
under:
(i) Union of India and Ors v. M. Selvakumar and Anr:
(2017) 3 SCC Page 504
(ii) State of Arunachal Pradesh and Anr v. Soilen Phukan
and Ors: (2007) 4 GLT Page 321
(iii) Madras Institute of Development Studies and Ors v. K.
Sivasubramaniyan and Ors:(2016) 1 SCC Page 454
(iv) N.T.R. University of Health Sciences, Vijaywada v. G.
Babu Rajendra Prasad and Anr: AIR (2003) SC 1947
Further, the learned Sr. GA also relied in the case of Indra
Sawhney and Ors v. Union of India: 1992 Supp (3) SCC 210 Page 210,
Para 810, which is reproduced herein below:
"810. While 50% shall be the rule, it is
necessary not to put out of consideration
certain extraordinary situations inherent in the
great diversity of this country and the people.
It might happen that in far-flung and remote
19
areas the population inhabiting those areas
might, on account of their being out of the
mainstream of national life and in view of
conditions peculiar to and characteristical to
them, need to be treated in a different way,
some relaxation in this strict rule may become
imperative. In doing so, extreme caution is to
be exercised and a special case made out."
6. After hearing the submissions advanced by the learned counsel
for the parties, I find that the two crux issues that have arisen before this
Court are:
1. Can reservation be cent percent?
2. When there exists a 'Reservation Policy,' in such
circumstances, whether the candidate of one category can
be placed in other category?
It is well known that cent percent reservation is not permitted by
our Constitution, generally reservation should remain confined within 50%,
however it is also a well known that different Courts in the country have held
exceptions to this rule with considerations to the facts and circumstances as
well as the backwardness in that particular State or area.
7. The Hon'ble Supreme Court in the case of K. Krishna Murthy v.
Union of India: (2010) 7 SCC Page 202 Para 66 has observed that:
"66. Admittedly, reservations in excess of
50% do exist in some exceptional cases,
when it comes to the domain of political
representation. For instance, the Legislative
Assemblies of the States of Arunachal
Pradesh, Nagaland, Meghalaya, Mizoram and
Sikkim have reservations that are far in
excess of the 50% limit. However, such a
position is the outcome of exceptional
considerations in relation to these areas.
Similarly, vertical reservations in excess of
50% are permissible in the composition of
local self-government institutions located in
the Fifth Schedule Areas."
20
8. The Hon'ble Gauhati High Court in the case of State of
Arunachal Pradesh and Anr v. Soilen Phukan: (2007) 4 GLT Page 321
Para 10 has held that:
"10. The equality clause enshrined by Article
14 of the Constitution is vibrant and dynamic;
not static or pedantic. Similarly, the
fundamental right to equality of opportunity in
public employment guaranteed by Article
16(1) of the Constitution does not contain any
prescription of equality by a mechanical
application of laws with arithmetical precision.
The persistent endeavour discernible in the
long line of judicial pronouncements has been
to infuse life blood into the constitutional goal
of equality and to bring about equality
amongst unequals by approving affirmative
and progressive State action leaning in favour
of the socially and economically backward
classes of citizens. Article 16(4) which
enables such State action, therefore, permits
protective discrimination to make the equality
clause guaranteed by Articles 14 and 16(1) of
the Constitution real and meaningful.
However, any positive action by the State,
which seemingly may appear to be an
instance of unequal treatment, has to be
justified on the touchstone of the provisions
contained in Articles 38, 46, 335, 338, 338A
and 340 of the Constitution. Relevant data
demonstrating the social and economic
deprivation of the classes of citizens to whom
protective discrimination is being offered must
exist to justify such an exercise. Reservation
of posts under Article 16(4) will not offend
Article 16(1) so long the necessity to provide
reservation can be justified by reference to
relevant data demonstrating the
backwardness of the particular classes which
had prompted the exercise. Viewed from the
above context any provision for reservation of
posts in public service for general category
candidates, who do not obviously suffer from
any visible or discernible social or economic
backwardness, would be a Constitutional
antithesis. The Constitutional exercise of
identification of the classes/group for the
inclusion in the list of Scheduled Castes,
Scheduled Tribes and Other Backward
Classes is but on the basis of social,
economic and educational backwardness
thereby making 'reservation' for general
category candidates a Constitutional
misnomer."
21
9. The Hon'ble Supreme Court in the case of Jitendra Kumar Singh
and Anr v. State of Uttar Pradesh and Ors: (2010) 3 SCC Page 119 Para
40 and 41 has also observed that:
"40. The Division Bench in the impugned
judgment has traced the history of reservation
at considerable length. It has also
distinguished between vertical and horizontal
reservations. It has also correctly concluded
that in case of horizontal reservation, the
carry- forward rule would not be applicable. All
these issues are no longer res integra, in view
of the authoritative judgment rendered in Indra
Sawhney v. Union of India, 1992 Supp (3)
SCC 217. It can also be no longer disputed
that reservation under Article 16(4) of the
Constitution of India aims at group
backwardness. It provides for group right.
Article 16(1) of the Constitution of India
guarantees equality of opportunity to all
citizens in matters relating to employment.
However, in implementing the reservation
policy, the State has to strike a balance
between the competing claims of the
individual under Article 16(1) and the reserved
categories falling within Article 16(4).
41. A Constitution Bench of this Court in the
case of Indra Sawhney case (supra), this
Court reiterated the need to balance the
fundamental right of the individual under
Article 16(1) against the interest and claim of
the reserve category candidates under Article
16(4) of the Constitution. (SCC pp. 734-35,
para 808)
"808. It needs no emphasis to say that
the principal aim of Article 14 and 16 is
equality and equality of opportunity and that
Clause (4) of Article 16 is but a means of
achieving the very same objective. Clause (4)
is a special provision - though not an
exception to Clause (1). Both the provisions
have to be harmonized keeping in mind the
fact that both are but the restatements of the
principle of equality enshrined in Article 14.
The provision under Article 16(4) - conceived
in the interest of certain sections of society -
should be balanced against the guarantee of
equality enshrined in Clause (1) of Article 16
which is a guarantee held out to every citizen
and to the entire society. It is relevant to point
out that Dr. Ambedkar himself contemplated
reservation being „confined to a minority of
seats‟ (see his speech in Constituent
Assembly, set out in para 693). No other
member of the Constituent Assembly
suggested otherwise. It is thus, clear that
reservation of a majority of seats [were] never
22
envisaged by the Founding Fathers. Nor are
we satisfied that the present context requires
us to depart from that concept."
10. The Hon'ble Supreme Court in the case of Union of India and
Ors v. M. Selvakumar and Anr: (2017) 3 SCC Page 504 Para 23 was
pleased to observe that:
"23. A nine-Judge Bench in Indra Sawhney v.
Union of India 1992 Supp. (3) SCC 217 had
elaborately considered both the concepts of
reservation. In Para 812 of the said judgment,
Justice B.P. Jeevan Reddy, has referred to
both the types of reservations. It was held that
horizontal reservations cut across the vertical
reservation. The following was stated: (SCC
pp. 735-36)
812. ....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 this
quota will be placed in the appropriate
category; if he belongs to SC category he 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. This is how these reservations are
worked out in several States and there is no
reason not to continue that procedure."
23
11. The Hon'ble Supreme Court in the case of Triloki Nath Tiku and
Anr v. The State of Jammu and Kashmir and Ors: AIR (1967) SC 1283 Para
7 observed that:
"7. The decision in R. Chitralekha v. State of
Mysore, (1964) 6 SCR 368: (AIR 1964 SC
1823), also turned upon the interpretation of
Article 15(4) of the Constitution. In that case
the Government of Mysore laid down that
classification of socially and educationally
backward classes should be made on the
following basis: (i) economic conditions, and
(ii) occupation. But the order of the
Government did not take into consideration
the caste of the applicant as one of the criteria
for backwardness. This Court pointed out that,
though the caste of a group of citizens might
be a relevant circumstance in ascertaining
their social backwardness, it could not be the
sole or the dominant test in that behalf. This
Court accepted the criteria adopted by the
Mysore Government for ascertaining the
backwardness of a class. The argument
advanced on behalf of the State, namely, that
the difference in the phraseology used in
Article 15(4) and Article 16(4), namely,
socially and educationally backward classes
in the former and backward classes in the
latter, leads to the inevitable conclusion that
"backward classes" of citizens in Article 16(4)
are only such classes of citizens who are not
adequately represented in the services of the
State does not appeal to us. The sole test of
backwardness under Article 16(4), the
argument proceeds, is the inadequacy of
representation in the services under the State;
that is to say, however advanced a particular
class of citizens, socially and educationally,
may be, if that class is not adequately
represented in the services under the State, it
is a backward class. This contention, if
accepted, would exclude the really backward
classes from the benefit of the provision and
confer the benefit only on a class of citizens
who, though rich and cultured, have taken to
other avocations of life. It is, therefore,
necessary to satisfy two conditions to attract
clause (4) of Article 16, namely, (i) a class of
citizens is backward, i.e., socially and
educationally, in the sense explained in
Balaji's case (supra); and (ii) the said class is
not adequately represented in the services
under the State."
24
12. After carefully reading the judgments and observations made by
the Hon'ble Supreme Court and Hon'ble Gauhati High Court, I am of the
considered view that 50% reservation is a mandate. However, it can be
increased or decreased taking into consideration the local scenario and
backwardness of the population of that particular area, but in no way can the
reservation be cent percent. The main purpose of reservation is to push the
backward class and to bring them on an equal footing to the forward class, so
that no discrimination should remain. The Constitution of India did not
empower any Government or any Authority to uplift backward class at the
cost of general class. In my view the reservation should be provided only to
those sections of persons who are economically backward, because when a
person is economically backward, he can be termed or called as a 'socially
backward' person. It will be totally wrong to say that backwardness depends
upon the caste and title of a person. We often observed that a person
belonging to a higher caste is so poor that he is not in a position to give
proper education to his children. Similarly, at the same time, we also observe
that people belonging to a backward caste are financially well off that they
can send their children to foreign countries for their higher studies, etc. It is
also not possible to determine the intelligence on the basis of caste, creed
and religion.
13. On perusal of the Annexure-7 of the WP(C) No. 103 of 2016,
Annexure-9 of the WP(C) No. 82 of 2016, Annexure-8 of the WP(C) No. 85 of
2016 and Annexure-7 of the WP(C) No. 102 of 2016, it appears to me that all
the posts are filled up by SC/STs and other backward classes and none of
the general candidates found their place in the Open Category results, which
is unwanted as it clearly shows that the reservation followed is cent percent,
though Reservation Policy of the Government states 40% for Khasi and
25
Jaintia, 40% for Garo, 5% for other backward classes and 15% for general
category.
Whenever any vacancy arises with reservation available to
different categories of persons, competition for seats for general category
should be among persons belonging to general category only and similarly,
competition for seats reserved for SC/STs category should be confined
among persons belonging to those categories. Likewise, the same should
apply to other backward classes. For e.g. suppose vacancy of 10(ten) posts
is available for general category against the bench mark or cut-off mark fixed
against the general category list, then such competition should be in the
general category and whoever secures the qualified marks fixed should be
accommodated in the general category. If no person is found suitable, then
such posts will have to be re-advertised. Besides that, I would also like to
point out that 1(one) post can never be reserved as it will amount to cent
percent reservation. So, the Government will have to make an appropriate
policy. For instance, if in a year 3(three) posts are advertised on 3(three)
different occasions, then suppose if the first seat is given to a person
belonging to an ST category, then the second seat should be given to a
person belonging to other backward classes. In the same way the third seat
should be accommodated to a person belonging to general category.
We must remember that the Reservation System at the time of
framing of the Constitution of India was not made absolute and final, it was
made for 10(ten) years and was required to be reviewed every 10(ten) years.
14. After hearing the facts and circumstances of these instant writ
petitions, I am certain that the Reservation Policy has never been reviewed
and has been carried on since the year 1972.
15. On further hearing on 10.07.2017, Mr. K. Paul, learned counsel for
the petitioners argued that the present Reservation Policy is totally defective
and not providing equal opportunities to all the citizens of the country. The
26
learned counsel for the petitioners in support of his submission submitted a
chart showing that discrimination is very much there as it appears from the
data submitted by the Government before this Court. The data ratio of
appointment was prepared by the learned counsel for the petitioners which
has been marked as Annexure-1 by this Court for ready reference and also
produced the information collected from the Census Department of the
Government of Meghalaya consisting of 6(six) pages and marked as
Annexure-II. These Annexures-1 and II shall be treated as a part of this
judgment. These Annexures clearly shows that the general category is not
getting its due share in its respective category; rather their numbers are
reducing year after year, which is highly illegal and pure violation of Article 14
and 16 of the Constitution of India.
16. On the other hand, Mr. D. Mazumdar, learned Sr. counsel
appearing for and on behalf of the State respondents submits that this
Reservation Policy was prepared in the year 1972 with the intention to uplift
the backward classes of people and to bring them to an equal position.
However, the learned Sr. counsel could not satisfy or give any satisfactory
answer as to how and why the proportion of reservation are not maintained
by the Government since the time of preparation of the Reservation Policy.
He also agreed that the policy may not be followed as per the Constitution of
India as well as other rules and fairly agreed that one post cannot be
reserved.
17. After hearing the submissions advanced by the learned counsel
referred above and after going through the different judgments and
Constitutional provision as well as the Reservation Policy of the Government,
in my humble understanding, the provision of Reservation Policy was
adopted by our Constitution makers to bring equality among all sections of
the people both backward category as well as general category. The whole
intention of the Constitution makers was to see that no one should remain
27
backward. It was not the intention of the Constitution makers to bring down
the general classes to the bottom and to push the backward classes to the
top. The sole intention of the Constitution makers was that there will be no
backward classes and they should come to the level of the general classes.
It is an undisputed fact that in Meghalaya it appears that
Reservation Policy has been divided into 4(four) categories, i.e. 40% seats
has been reserved for Khasi and Jaintia, 40% for Garo, 5% for other
backward classes and 15% for general category, but unfortunately it is
noticed that these 4(four) categories are not maintained strictly. It is always
noticed that in general category a candidate from backward category are
placed on the plea that he/she has obtained the highest marks, which is very
much wrong and against the principle of Reservation Policy. Since the 4(four)
categories are made, the competition should be within the respective
category. A candidate from one category cannot enter in other category, for
e.g. suppose reserved category such as, Khasi and Jaintia, Garo and other
backward classes, if the qualified mark or bench mark is fixed at 50%, the
competition will be within that mark amongst them self, if the bench mark or
qualified mark is made for general category at 60% and Khasi/Jaintia or Garo
or any other backward classes candidate obtained 60% or 65% he/she will
not be able to enter the general category. In one word we can say that each
and every candidate will have to compete within their respective categories
and will be selected in order of merit, they cannot be brought to other
categories even if they get highest mark than a candidate who applied from
general category. In case if no person is found suitable or could not obtain
bench mark or pass mark, fixed for general category, then in that case such
posts will have to be re-advertised and to fill up from general category only,
but it cannot be filled up by a candidate from SC/STs category or other
backward classes on the plea that someone from SC/ST or other backward
classes has obtained the bench mark or highest marks than a general
candidate.
28
18. I have perused the Office Memorandum dated Shillong, the 19th
December, 1981 which is annexed as Annexure-6 of the affidavit filed on
behalf of the State respondents and the same is reproduced herein below for
ready reference:
"No. PER(AR). 257/81/8
GOVERNMENT OF MEGHALAYA
PERSONNEL AND ADMV, REFORMS (B)
DEPARTMENT
______________
OFFICE MEMORANDUM
Dated Shillong, the 19th December, 1981.
Subject: - Reservation of vacancies for Scheduled Castes and Scheduled
Tribes.
The undersigned is directed to invite attention to
Government Resolution No. PER. 222/71/138, dated 12th
January, 1972 (circulated under Memo No. PER.
222/71/140 dated 12th January, 1972) as amended vide
Office Memorandum No. PER. 222/71/141, dated 20th April,
1972, Office Memorandum No. PER. 222/71/Pt. III/22,
dated 25th November, 1976 and Office Memorandum No.
PER. (AR.) 64/79/15, dated 12th September, 1979 in so far
as they pertain to reservations that shall be made in favour
of the Scheduled Tribes and Scheduled Castes in posts
and services connected with the affairs of the Meghalaya
and to say that a question has arisen as to how to regulate
those reservations in a situation where the number of
vacancies is very small. After careful consideration of all the
aspects and principles already enunciated in the above
mentioned Resolution and Office Memoranda, Government
have decided that where the number of vacancies is 9
(nine) or less, the same shall be treated as reserved
vacancies in favour of the protected communities as
specified in the said Resolution and Office Memoranda.
Sd/-
H.A.D. Sawian,
Special Secy. to the Govt. of Meghalaya,
Personnel and Administrative Reforms (B) Department."
On perusal of the Office Memorandum dated Shillong, the 19 th
December, 1981, I find that the Reservation Policy is full of discrimination and
contrary to the provision of the Constitution of India. Further, I mentioned
here that one post cannot be reserved at any cost, which is totally against the
principle of the Constitution of India. Initially, the makers of the Constitution
29
made a provision of Reservation Policy for 10(ten) years and subject to
review for every 10(ten) years, but it is painful and unfortunate that no review
or revisit has been made as required.
19. I have also perused the Resolution dated 12th January, 1972
published in the Gazette of Meghalaya which is annexed as Annexure-1 of
the affidavit filed on behalf of the State respondents and the same is
reproduced herein below for ready reference:
"The 12th January, 1972
RESOLUTION
No. PER. 222/71/138. - The question of reservation
of posts in favour of the Scheduled Tribes and Scheduled
Castes has been under careful consideration of this
Government. It has now been decided in pursuance of
clause 4 of Article 16 of the Constitution and keeping in
view the inadequacy of representation of these
communities in the services under the autonomous State of
Meghalaya in terms of their population that, consistently
with the maintenance of efficiency in the administration, the
following reservation shall be made in favour of the
Scheduled Tribes and Scheduled Castes in posts and
services in connection with the affairs of Meghalaya which
are filled by direct recruitment:-
(a) There shall be a reservation of 40 per cent of
the vacancies in favour of Khasis and Jaintias.
(b) There shall be a reservation of 40 per cent of
the vacancies in favour of Garos.
(c) There shall be a reservation of 5 per cent of
the vacancies in favour of any other
Scheduled Tribes of the Autonomous Districts
of Assam now within Meghalaya and the
Scheduled Castes of Assam.
2. If sufficient number of suitable candidates for filling
up the reserved vacancies is not available from the
respective classes in any particular year, then such
vacancies will be available to others. But the
deficiency in the number of Scheduled Tribes and
Scheduled Castes will be carried forward to the next
recruitment year and made good in the recruitment of
that year, provided that the reservation on account of
the deficiency shall not be carried forward for more
than one year. After the expiry of the second year,
these reservations shall be treated as lapsed. It has
also been decided that at no time shall the number of
normal reserved vacancies and the „carry forward‟
vacancies together exceed 90 per cent of the total
number of vacancies in that year.
3. There might be instances when an eligible candidate
belonging to Scheduled Tribes and Scheduled
Castes may not be appointed because the reserve
30
quota in a particular recruitment year on the basis of
the percentage of vacancies mentioned above may
be less than 0.5 but taking the cadre as a whole the
particular class to which the candidate belongs may
be grossly under-represented. In such cases it has
also been decided to allow further concession to such
under-represented class of Scheduled Tribes and
Scheduled Castes in a cadre (as may be determined
from time to time by the appointing authority
concerned) to the extent indicated below:-
(1) A fraction upto 0.4 of the vacancy to
which the protected category is entitled
on the basis of the reservation against
the projected intake in any recruitment
year shall be rounded to one in favour
of candidate belonging to an under-
represented community of the
protected category.
(2) For the benefit of candidates belonging
to such under-represented class, the
reservation on account of the
deficiency shall be carried forward upto
two subsequent recruitment years
before the reservation in respect of the
protected category is finally treated as
lapsed.
4. The reservation mentioned above will not apply to -
(1) vacancies filled by transfer or
deputation or by promotion,
(2) temporary appointments of less
than 45 days duration,
(3) purely temporary establishments
such as work-charged staff
including the daily-rated and
monthly-rated staff.
5. There shall be no reservation of vacancies for
Scheduled Tribes and Scheduled Castes in scientific
services and posts and in appointments for conducting
research or organizing guiding and directing research.
6. There shall be no relaxation of the educational and
other qualifications in respect of posts and services in
connection with the affairs of Meghalaya.
7. These orders shall take effect from the date of issue
of this Resolution and shall be applicable to all
appointments made on or after this date. All
advertisements for posts and services under the
Government of Meghalaya issued before this date shall
be deemed to have been modified to the extent of the
orders contained in this Resolution.
ORDER
ORDERED that a copy of the Resolution be communicated to the Secretary to the Governor, the Private Secretary to the Chief Minister, Private Secretary to all 31 Ministers, all Secretaries to the Government of Meghalaya, all Heads of Departments, all Deputy Commissioners and Subdivisional Officer, Secretary, Assam Public Service Commission and all Departments and offices under the Government of Meghalaya for information.
ORDERED also that the Resolution be published in the Meghalaya Gazette for general information.
Sd/-
V.RAMAKRISHNAN, Secretary (Special) to the Govt. of Meghalaya, Personnel Deptt."
Though the Resolution is annexed in the file, but the Government failed to produce and to examine whether the Resolution is a Government policy as per law, on the plea that the file is missing.
20. Before I conclude my judgment, I further repeat that a candidate of one category cannot enter the other category even if he/she obtained better marks and the Government should follow the present Reservation Policy which is 40% for Khasi and Jaintia, 40% for Garo, 5% for other backward classes and 15% for general category proportionately and equally, otherwise the dream and intention of our Constitution to bring all the citizens in one level is bound to collapse, because forward classes will come down and backward classes will go up, which is not the intention of the makers of the Constitution of India. The present appointment followed by the Government to bring a candidate from one category to the other category is totally illegal, unconstitutional and in violation of the Article 14 and 16 of the Constitution of India. Hence, I direct the Government to follow the appointment policy as discussed above and I leave with the State Government and the Central Government to review the Reservation Policy, but it should not be at any cost against the principle of Article 14 and 16 of the Constitution of India.
Further, another question which came to my mind as I have stated earlier is that, a person is backward only when he is economically unsound. Now the question which arises is that, those who are economically sound and 32 whose parents are holding higher post, whether their children are entitled for further reservation? That I leave it to the State Government and the Central Government to consider and this question remains open.
21. The stay orders dated 14.03.2016 passed in WP(C) No. 82 of 2016 and 14.03.2016 passed in WP(C) No. 85 of 2016 are hereby vacated.
22. With this observation and direction the writ petitions bearing WP(C) No. 103 of 2016, WP(C) No. 82 of 2016, WP(C) No. 85 of 2016 and WP(C) No. 102 of 2016 are allowed and stands disposed of by this common judgment and order. It is hereby noted further that those who have obtained qualified marks or bench marks as fixed for their respective categories only they can be appointed in that particular category itself. To be more clear, one category cannot encroach in the other category even if they get the highest marks.
The observations and directions given above to be followed strictly.
When, while revisiting the Reservation Policy, the Government should keep in mind that the Constitution of India does not desire more than 50% reservation and a Nationalistic view should be taken so that no class or citizen is deprived of his/her rights guaranteed by the Constitution of India.
23. The Registrar General is directed to send a copy of this judgment and order to the Chief Secretary, Government of Meghalaya immediately, who in turn shall circulate this judgment and order to all Government Offices, including schools and colleges where reservation is applied for strict compliance.
24. It is further directed that the Chief Secretary, Government of Meghalaya shall forward a copy of this judgment and order to the Secretary 33 to the Hon'ble Prime Minister of India, Secretary to the Hon'ble Law Minister, Government of India, Secretary to His Excellency the Governor of Meghalaya and Secretary to the Hon'ble Chief Minister of Meghalaya with a request to place the same before the Hon'ble Prime Minister of India, the Hon'ble Law Minister, Government of India, His Excellency the Governor of Meghalaya and the Hon'ble Chief Minister of Meghalaya for their kind perusal.
25. The Chief Secretary, Government of Meghalaya is further directed to submit a compliance report before the Court within 3(three) days and after perusal of the Court, the Court Master shall keep the report in the file.
The Annexures-1 and II are annexed herewith.
JUDGE D. Nary