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1996 DIGILAW 1390 (RAJ)

Nemi Chand Gorwa v. Municipal Council, Sikar

1996-12-12

N.L.TIBREWAL

body1996
JUDGMENT 1. - The question involved in this petition is whether for filling the single post of Assistant Revenue Inspector by promotion, 100-point roster issued by the State Government applies or not ? 2. The undisputed facts of the case are that a post of Assistant Revenue Inspector was created in Municipal Council, Sikar, vide order dated 30.9.91. The petitioner is a member of Scheduled Caste while respondent No.3, Tara Chand Dangi falls in general category. The petitioner came to be appointed as Nakedar in the service of the Municipal Council, Sikar on 8th August 1980. He is Matriculate and also obtained Diploma in Local Self Government (for LSGD). On the other hand, respondent Tara Chand was appointed on 1.2.77. Thus, so far the seniority is concerned, respondent Tara Chand is senior to the petitioner. It is not disputed before me that both are eligible for promotion in the post of Assistant Revenue Inspector. As per the Schedule appended to the Rajasthan Municipal (Subordinate and Municipal Service) Rules, 1963, the qualification for the post of Assistant Revenue Inspector is Matriculate with LSGD. Persons holding five years experience as Nakedar/Mohrir with minimum qualification are eligible for promotion to the said post. 3. On behalf of the petitioner, it is contended that 100-point roster relating to reservation of vacancies for members of Scheduled Caste and Schedule Tribes for appointment by direct recruitment and promotion applies even in the case of single post. While the contention of the learned counsel for the respondents is that on a single post reservation is not permissible and 100-point roster has no application. 4. Mr. Hanuman Choudhary and Shri Manoj Sharma appearing for the respondents have strongly relied on the decision of the Supreme Court in the case of Dr. Chakradhar Paswan v. State of Bihar and others, AIR 1988 Supreme Court 959 , and Smt Chetna Dilip Motghare v. Bhide Girls Education Society, Nagpur and others, AIR 1994 Supreme Court 1917 , in support of their contentions. In Chakradhar Paswan's case (supra) the Supreme Court upheld the judgment of the High Court quashing the advertisement issued by the Bihar Public Service Commission inviting applications for the post of Dy. Director, (Homeopathic) in the Directorate of Indigenous Medicines, Health Department, State of Bihar, from Scheduled Castes candidates and consequent order of the State Government dated, 30th May 1979 for appointment of the appellant Dr. Director, (Homeopathic) in the Directorate of Indigenous Medicines, Health Department, State of Bihar, from Scheduled Castes candidates and consequent order of the State Government dated, 30th May 1979 for appointment of the appellant Dr. Chakradhar Paswan to that post on the ground that no reservation could be made under Article 16(4) of the Constitution, so as to create a monopoly. In para 16 of the judgment it was observed as under : "It is quite clear after the decision in Devadasan's case that no reservation could be made under Article 16(4) so as to create a monopoly. Otherwise, it would render the guarantee of equal opportunity contained in Articles 16(1) and 16(2) wholly meaningless and illusory. These principles unmistakably lead us to the conclusion that if there is only one post in the cadre, there can be no reservation with reference to that post either for recruitment at the initial stage or for filling tip a future vacancy in respect of that post. A reservation which would come under Article 16(4), pre-supposes the availability of at least more than one post in that cadre." 5. The decision in Chakradhar Paswan's case was again considered by the Supreme Court in State of Bihar v. Bageshwari Prasad, 1996(1) SLR 185 , in the context of the roster system. Their Lordships observed as under : "The High Court was clearly in error in relying the ratio in Paswan's case (supra) which stood entirely on a different situation to hold that the post cannot be reserved. Under these circumstances, the order of the High Court is set aside and the second respondent was rightly considered for promotion and was legally promoted as Superintendent." The ratio of the decision in State of Bihar v. Bageshwari Prasad has full application in the present case. 100-point roster which was issued in the year 1985 providing reservation of vacancies for members of the Scheduled Caste and Scheduled Tribes and subsequent roster after including reservation for members of Other Backward Classes provides point No.1 for a Scheduled Caste candidate. Admittedly, the petitioner is only eligible candidate in the category of Scheduled Caste for promotion to the post of Assistant Revenue Inspector. This post has never been filled in by a member of Scheduled Caste as admitted by the Municipal Council in its reply. Admittedly, the petitioner is only eligible candidate in the category of Scheduled Caste for promotion to the post of Assistant Revenue Inspector. This post has never been filled in by a member of Scheduled Caste as admitted by the Municipal Council in its reply. Despite the fact that the respondent Tara Chand Dangi is the senior-most Nakedar, the petitioner's claim cannot be denied on the ground that on a single post reservation is not permissible as held by the Supreme Court in Bageshwari Prasad's case (supra) that the roster is not concerned with the post but with the vacancy arising on each successive occasion. Therefore, if roster applies to a single post, it has to be filled in as per roster as and when the vacancy arises. 6. Consequently, the petition is allowed. Respondent No.1 is directed to consider the name of the petitioner for promotion in the post of Assistant Revenue Inspector as per 100-Point Roster system as and when the said vacancy is filled in. Till the case of the petitioner is decided for promotion to the said post, the vacancy shall not be filled in by providing appointment temporarily or substantively to any other person. 7. In the facts and circumstances, costs of the petition is made easy.Petition allowed. *******