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1994 DIGILAW 292 (PAT)

Jay Nandan Yadav v. State of Bihar

1994-09-05

NARAYAN ROY, S.N.JHA

body1994
ORDER This writ application has been filed for quashing the order of the Commissioner, Magadh Division, dated 10.6.94 and for a direction to the respondents to limit the extent of reservation for all categories to 50% in the matter of appointment on the post of Panchayat Sewak and to consider the case of the petitioners according to the roster laid down in the circular of the Personnel and Administrative Reforms Department dated 13.4.94. 2. The dispute relates to appointments of Panchayat Sewaks from amongst the Dalpatis in the district of Jehanabad in terms of the circular of the Rural Development Department dated 24.6.89 (Annexure1). There are 146 sanctioned posts of Panchayat Sewak in the said district as against which 28 posts are vacant. A writ petition being C.W.J.C. No. 8843 of 1992 was filed in this Court for direction to the respondents to fill up the vacancies. In the light of the direction made in the said writ petition as also in M.J.C. No. 300 of 1994 steps were taken to make the appointments. The District Magistrate, Jehanabad, requested the Commissioner, Magadh Division, to clear the roster by his letter dated 17.5.94 stating, inter alia, that out of 28 available vacanices on the post, 8 are reserved for the Scheduled Caste category, 4 are reserved for the Most Backward class category and 2 for the Backward class category. According to the petitioners, appointments on the post should be made according to the break-up of the reservation as mentioned in the said letter. 3. As per Annexure-M, the correctness of which has not been disputed by the petitioners, out of the sanctioned 146 posts of Panchayat Sewaks in the district, the quota of scheduled castes and scheduled tribes categories, 26% and 1 % respectively in the district, comes to 32 as against which only 12 posts are filled up by the candidates of the said categories. In other words, 20 posts of their quota are still vacant. The Divisional Commissioner appears to have issued the impugned communication dated 10.6.94 directing that the available vacancies be filled up from the candidates of the Scheduled Castes and Scheduled Tribes categories, treating them to be 'backlog'. In other words, 20 posts of their quota are still vacant. The Divisional Commissioner appears to have issued the impugned communication dated 10.6.94 directing that the available vacancies be filled up from the candidates of the Scheduled Castes and Scheduled Tribes categories, treating them to be 'backlog'. It, howeve, appears from the minutes of the Selection Committee dated 2.7.94, Annexure-K to the counter affidavit, that the selection has been made as per circular of the Personnel and Administrative Reforms Department dated 9.2.82 and the above-said roster dated 13.4.94. According to the circular dated 9.2.82, total reservation in a particular year in respect of the current vacancies as well as the carried forward vacancies cannot exceed 50%. Further, according to the roster dated 13.4.94 (Annexure-5), as applicable to the district of Jehanabad, the 2nd, 5th, 10th, 14th, 18th, 22nd, 24th (and so on) vacancies are to be filled up by the candidates of Scheduled castes; the 86th vacancy is to be filled up by the candidates of the Scheduled tribes; 4th, 16th, 20th, 26th (and so on) vacancies are to be filled up by the candidates of the Most Backward class category; 8th, 12th, 30th (and so on) vacancies are to be filled up by the candidates of the Backward class category; and finally, 38th and 88th vacancies are to be filled up from amongst women of Backward class category. We have carefully examined the minutes of Selection Committee (Annexure-K) from which it appears beyond any shadow of doubt that the selection has been made strictly according to roster as laid down in the circular dated 13.4.94. While making the selection, 14 our of 28 available vacancies only were treated as reserved for the candidates of the Scheduled caste category as against their balance quota of 20. As against the 14 vacancies, only 7 persons have actually been selected. The rest 7 have been kept vacant to be filled up by direct recruitment as per the procedure laid down in circular dated 24.6.89 (supra) itself. In that view of the matter, it is obvious that the impugned direction of the Commissioner, Magadh Division, dated 10.6.94 has not been acted upon. 4. Counsel for the petitioners, however, contended that the authorities have erred in reserving 14 available vacancies for the candidates of the Scheduled castes category treating them to be 'backlog' vacancies. In that view of the matter, it is obvious that the impugned direction of the Commissioner, Magadh Division, dated 10.6.94 has not been acted upon. 4. Counsel for the petitioners, however, contended that the authorities have erred in reserving 14 available vacancies for the candidates of the Scheduled castes category treating them to be 'backlog' vacancies. It was pointed out that the appointment on the post of Panchayat Sewaks in the district of Jehanabad, which came into existence in 1986, being made for the first time, the vacancies cannot be treated as backlog. The appointments should be made as initial recruitment being made for the first time against available vacancies for which reservation should be worked out @ 26% and not beyond that. In this connection reliance was placed on observations of the Supreme Court in paragraph 814 of the judgement in the case of Indira Sawhney v. Union of India (AIR 1993 Supreme Court, 477). The observations relied upon by the learned counsel have been made in the context of reservation for the OBCs. It is well known that reservation for the OBCs was made for the first time in August 1990. Thus, so far as they are concerned, the reservation of 27% for them cannot be worked out on the basis of any backlog. However, so far as the Scheduled Castes and Scheduled Tribes candidates are concerned, the reservation being' already in vogue since 1950/1953, treating the vacancies of their quota as backlog cannot be said to be erroneous. Admittedly, out of 146 sanctioned posts of Panchayat Sewaks in the district, the Scheduled Castes and Scheduled Tribes candidates have quota of 32 posts @ 26% and 1 % respectively, as indicated above, against which only 12 are filled by them. If the authorities had made selection against all the available posts or kept them reserved for the candidates of the Scheduled Castes alone in excess of 50% the same of course would not have been legal as, in view of the decision of the Supreme Court reported in (1981) 1 SCC 246 as also the circular of the State Government dated 9.2.82 itself, the reservation in a particular year including for carried forward vacancies cannot exceed 50%. However, that not being the position and the selection having been made strictly in accordance with the said circular as also the roster dated 13.4.94 on which the petitioners also rely, the impugned selection (Annexure-7) cannot be said to be illegal. We, thus, do not find any substance in the grievance of the petitioners. 5. This writ application is, accordingly, dismissed.