Lalit Kumar v. State of Bihar — 1992 DIGILAW 388 (PAT)

Judgment N. Pandey, J. These two writ applications under Articles 226 and 227 of the Constitution of India have been heard together, therefore, for the sake of convenience, they are being disposed of by a common judgment. 2. The petitioners have confined their prayer for a direction to the respondents to appoint them to the post of Excise Sub• Inspectors against the declared vacancies, advertised on 9th of December, 1987, through the Bihar Public Service Commission (hereinafter to be referred as 'the Commission'). 3. In order to appreciate controversies, it would be appropriate to have a brief survey of some of the facts. The Commission in the year, 1980, issued an advertisement for a competitive examination for direct recruitment of non-gazetted posts. The number of the posts of Excise Sub-Inspectors, specially advertised, were 127. Thereafter, the competitive examination was held, but before the publication of result, the State Government decided to curtail certain schemes and therefore, the Commission was requested to send recommendation for direct recruitment against 45 posts of Excise Sub-Inspectors only. It appears from the letters, contained in Annexures-A and B to the State's counter affidavit, the aforementioned posts were allocated for different categories in the following manner :-(a) Unreserved (General Category)-20 posts, (b) Backward Class-5 posts, (c) Extremely Backward Class-4' posts, (d) Economically Backward Class-2 posts, (e) Scheduled Caste-7 posts, (f) Scheduled Tribe-5 posts and (g). Ladies-2 posts. 4. A grievance has been raised that since respondents reserved more than 50 percent of the total posts for the candidates, belonging to the reserved categories, the petitioners could not be appointed. 5. On behalf of the respondent-State a counter affidavit and two supplementary counter affidavits have been filed, denying the claim of the petitioners. It has been asserted that these appointments were made as per the model roster, prepared by the Department of Personnel vide its letter dated 30.1.1979, a copy of which is Annexure-C to the supplementary counter affidavit. It has been stated that in view of the roster clearance out of 45 vacancies, 20 vacancies will be available for unreserved candidates and remaining 25 vacancies will go to the reserved candidates of different categories. 6. Mr. Sarojendu Mukherjee contended that in view of the decision of the Supreme Court in the case of Akhil Bharatiya Soshit Karamchari Sangh (Railway) V. Union of India and ors. 6. Mr. Sarojendu Mukherjee contended that in view of the decision of the Supreme Court in the case of Akhil Bharatiya Soshit Karamchari Sangh (Railway) V. Union of India and ors. (A.I.R. 1981 S.C. 298), the decision of the Government to fill up more than 50 percent of the total number of posts from the candidates, belonging to the reserved category, is in utter violation and disregard to the directives issued in the said case. 7. He further contended that pursuant to the aforesaid decision of the Department of Personnel and Administrative Reforms (Government of India) vide its Circular dated 9.2.82, which has also been circulated by the Government of Bihar by Memo No. 6809 dated 6.12.1982 (Annexure-15). According to him, the decision of the Government to fill up more than 50 percent vacancies from the reserved candidates can not override the mandate of the Supreme Court. It is stated that in one transaction on any particular occasion even the reservation, including the carried forward vacancies must not exceed 50 percent of the total number of the vacancies. 8. Mr. Keshari, learned counsel, appearing for the State, contended that in view of the roster system, notified by the State vide Annexure-C to the supplementary counter affidavit, all the appointments and promotions have to be made strictly in accordance with the said provision. Since at the particular occasion only 45 vacancies were to be filled up, as per the roster, 25 vacancies were filled up by the candidates of the reserved categories. The candidates belonging to unreserved category are not sufferer in any way. The moment 100 vacancies are filled up the number of unreserved candidates would increase. He further contended that in the case of Jamuna Jha and ors. v. The State of Bihar and ors. (1986 P.L.J.R. 203), this Court has already held that in case the percentage for appointment of reserved category candidates, raised from the prescribed quota of percentage, the roster system does not become vulenarable to attack, as the same is meant to effectuate the policy behind reservation. It would be appropriate to quote the 'relevant finding from the aforesaid report : "It is also true that consequent upon their promotion the percentage of reserved candidate shot from 24% to about 33 percent, but that is no ground for assailing their appointment. The substantive rule is that reserved category candidates shall constitute 24%. It would be appropriate to quote the 'relevant finding from the aforesaid report : "It is also true that consequent upon their promotion the percentage of reserved candidate shot from 24% to about 33 percent, but that is no ground for assailing their appointment. The substantive rule is that reserved category candidates shall constitute 24%. The validity of reservation could not and has not been challenged. The roster called out is only a method of implementing the policy of reservation. At first sight it appears incongruous that the benefit of reservation should go above 24%. But this incongruity disappears when it is appreciated that at some point of time the quota of reserved candidate may fall below 20%. In that view of the matter, the roster system is not vulnerable to attack. It is meant to effectuate the policy behind reservation. It cannot, therefore, be held to be contrary to Article 16 of the Constitution. The Supreme Court was seized of a similar situation in Hira Lal v. The District Judge, Ghaziabad and others: AI.R, 1984 Supreme Court 1212. In that case the reservation quota appeared to have shot up to 21% when the prescribed quota was only 18%." The facts of the aforesaid case are quite different. In that case it was noticed that the percentage of reserved candidates for appointment was extended from 24 percent to about 33 percent. It was also noticed that at a particular time for want of required number of candidates, the percentage could go below even to 20 percent. In the case before me, the facts are otherwise, It would be relevant to notice that total reservation on the particular occasion has exceeded more than 54 percent of the vacancies. 9. From the facts, stated above, there is no dispute that appointments in question have been made against particular number of vacancies in one transaction. This is not the case of the State that certain reserved vacancies, not filled up earlier, have been carried forward. In case of Akhil Bharatiya Soshit Karmchari Sangh (Railway) (supra) it has already been held that total reservation on a particular occasion should not exceed 50 percent of the total vacancies. This is not the case of the State that certain reserved vacancies, not filled up earlier, have been carried forward. In case of Akhil Bharatiya Soshit Karmchari Sangh (Railway) (supra) it has already been held that total reservation on a particular occasion should not exceed 50 percent of the total vacancies. It would be appropriate to quote the relevant finding from the aforesaid report: "The principle that reserved quotas should not together exceed 50 percent of the vacancies available in a year was affirmed by this Court, by a majority of four learned Judges to one, in T. Devadasan v. Union of India [ (1964) 4 SCR 680 : ( AIR 1964 SC 179 ], as the reason for striking down a "carry forward" rule which, for promotions in the Central Secretariat Service, permitted a carry forward for two successive years of the annual reserved quota. It was found in that case that observance of the rule had resulted in 65% of the vacancies of the year being filled by reserved quotas, current and carried forward. The "carry forward" rule was held constitutionally invalid on the basis that for the purpose of Article 16 (1) each year of recruitment had to be considered as a distinct unit for applying the 50% rule." 10. There can not be any dispute that candidates, belonging to the reserved category at a stage of initial appointment or at the stage of promotion, are entitled for preferential treatment. This is not because a concession or privilege is extended to them. In fact it is in recognition of their undisputed fundamental right of equality, in discharging constitutional obligation upon the State, to secure social and economical justice. Every lawful method is permissible to secure due representation of the candidates, belonging to the reserved category. But it can not be undermined that guarantee contained in Article 16 (1) of the Constitution is for ensuring equality of opportunity to all citizens, relating to employment in any office under the State. Therefore, every citizen seeking for employment, is entitled for an opportunity, whenever it is intended to be filled in. But it can not be undermined that guarantee contained in Article 16 (1) of the Constitution is for ensuring equality of opportunity to all citizens, relating to employment in any office under the State. Therefore, every citizen seeking for employment, is entitled for an opportunity, whenever it is intended to be filled in. In this regard, it would be appropriate to quota a relevant passage from Akhil Bharatiya Soshit Karamchari Sangh (Railway) (supra) : "It seems to me that apart from the impact that an excessive reservation in a particular rear is bound to have on the general community of citizens, there is the further far-reaching significance this assumes in the context of Art. 335. The maintenance of efficiency of administration is bound to be adversely affected if general candidates of high merit are corresponding excluded from recruitment because the large bulk of the vacancies, numbering anything over 50% is allotted to the reserved quota. In view of a maximum age-limit invariably prescribed, some of such meritorious candidates may be lost to the service altogether. Viewed in that light, a maximum of 50% for reserved quotas in their totality is a rule which appears fair and reasonable, just and equitable, and violation of which would contravene Article 335." It is thus apparent that taking into totality of all the relevant provisions, the Supreme Court held that the total reservation on a particular occasion cannot exceed 50 percent of the total vacancies. 11. I have also referred to a circular of the Department of Personnal and Administrative Reforms (Government of India) dated 9-2-1982, whereby, the memorandum dated 27-12-1977 was modified. In the said memorandum a provision was made to carry forward reserved vacancies to be available together with the current reserved vacancies, even where the total number of such reserved vacancies exceed 50 percent. The aforesaid circular of the Central Government has already been circulated by the State of Bihar through a memo dated 6-12-1982 to all the relevant departments. However, no material has been placed before me whether the aforementioned decision of the Central Government has been adopted by the State Government. Therefore, I do not propose to record any finding with respect to applicability of the Circular in facts of the present case. 12. However, no material has been placed before me whether the aforementioned decision of the Central Government has been adopted by the State Government. Therefore, I do not propose to record any finding with respect to applicability of the Circular in facts of the present case. 12. Having considered entire facts and circumstances of the case as also in view of the rider, imposed by the Supreme Court that total reservation on a particular occasion should not exceed 50 percent of the total vacancies, I am constrained to hold that the decision of the Government, allocating posts in excess of 50 percent, was unjust and against the mandate of the Supreme Court. 13. In view of the interim order, passed in these writ applications, three posts of Excise Sub-Inspectors have been kept reserved. In that view of the matter, the respondents are directed to take steps for appointment of the petitioners, if they are otherwise qualified for these posts. 14. In result, with the aforesaid observations and directions, these writ applications are allowed to the extent, indicated above. But in the circumstances of the case, there shall be no order as to costs.