Ashok Kumar v. State of Bihar — 1997 DIGILAW 125 (PAT)

JUDGMENT Nagendra Rai, J. The petitioner, a Dalpati of Sakarpura Gram Panchayat in the district of Madhepura, has filed the present application for quashing the order dated 2.3.91 contained in Annexure-3 passed by the District Magistrate, Madhepura appointing scheduled caste candidates (Respondents nos 5 to 12) on the post of Panchayat Sewak on the ground that 100% post of Panchayat Sewak has been tilled up by the reserved category candidates ignoring the claim of general category candidates and for a direction to the respondent District Magistrate to fill up 50% post of Panchayat Sewak from the general category candidates. 2. The case of the petitioner is that he was appointed as Dalpati of the said Gram Panchayat in the year 1994. He is matriculate and has also got requisite training of Dalpati and according to the Government Policy decision of 1975 which has been reiterated in 1989 the posts of Panchayat Sewak is to be filled up from the Dalpaties having matriculate qualification and requisite training of Dalpati. The age bar in the case of general category candidates is 40 years and in the case of Scheduled Caste and Scheduled Tribe is 43 years. In the year, 1987 the Government laid down a criteria for preparing the gradation list of Dalpati in each district for the purpose of training to the post of Dalpati as well as for promotion to the post of Panchayat Sewak. According to the said decision the relevant date for determining the seniority is the date of approval by the District Panchayat Officer. On the basis of the said seniority the promotion is to be given to the post of Panchayat Sewak. A true copy of the said Govt. decision has been annexed as Annexure-2 to the writ application. In the said gradation list the position of the petitioner is 34. Eight posts of Panchayat Sewak were vacant in 1991 and the selection committee in its meeting dated 8.2.91 decided to fill up all the posts from Scheduled Caste Candidates and, accordingly, respondents no. 5 to 12 belonging to the Scheduled Caste were appointed by the District Magistrate by Memo. no. 62 dated 2nd March, 1993 Vide Annexure-3. 3. The grievance of the petitioner is that the entire vacancies in a particular year cannot be filled up by the reserved category candidates. 5 to 12 belonging to the Scheduled Caste were appointed by the District Magistrate by Memo. no. 62 dated 2nd March, 1993 Vide Annexure-3. 3. The grievance of the petitioner is that the entire vacancies in a particular year cannot be filled up by the reserved category candidates. There cannot be reservation beyond 50% in case of reserved category candidates even if the vacancies are carried forward. The action of the respondents in filling up all the posts from the reserved category candidates is not permissible in law and, accordingly, their appointment should be cancelled. 4. The State has filed a counter affidavit and two supplementary counter affidavits. In the counter affidavit filed on 13.3.95 nothing was stated and thereafter this Court directed the State Counsel to file further counter affidavit. In pursuance of this direction two supplementary affidavits have been filed. 5. The stand of the State in the counter affidavits is that the position of the petitioner in the gradation list prepared in 1987 is 121 and not 34 and there are many persons above him in the general category candidates of Dalpati. The appointment of Dalpati in 1991 was done on the basis of the reservation policy of the Government and the roster system for Madhepura District. There were 183 sanctioned posts of Panchayat Sewak in the district. Out of which 28 posts were reserved for Scheduled Caste candidates and 10 posts of Scheduled Tribe candidates. Fourteen posts of Panchayat Sewak of the reserved category of S.C. were vacant in 1991 and it was decided to appoint suitable Dalpati of Scheduled Caste to the vacant post of Panchayat Sewak. Accordingly, 8 persons of Scheduled Caste were appointed and since no post of Panchayat Sewak under the backward category was vacant the petitioner was not appointed. It is further stated that in 1993 after coming into force of the new Panchayat Rajya Act posts of Panchayat Sewak were reduced from 192 to 166. In 1994 roster for different categories of Panchayat Sewak was prepared. On the basis of the approved roster the break up of existing vacancies are 83 for general, 19 for backward, 26 for extremely backward, 3 for women of backward category, 27 for Scheduled Caste and 8 for Scheduled Tribe. In 1994 roster for different categories of Panchayat Sewak was prepared. On the basis of the approved roster the break up of existing vacancies are 83 for general, 19 for backward, 26 for extremely backward, 3 for women of backward category, 27 for Scheduled Caste and 8 for Scheduled Tribe. It is further stated that against the aforesaid posts 65 persons have been appointed from the backward category and as such there is no vacancy in the backward category and, therefore, the petitioner cannot claim the appointment. Out of the aforesaid 166 posts 155 posts of Panchayat Sewak were filled up and the number of vacant seats are 11 only. Out of this 6 are earmarked for Scheduled Castes 3 for Scheduled Tribes and 2 for Extremely Backward Castes. 6. Respondent nos. 5 to 12 have also filed the counter affidavit and they admitted in the counter affidavit that in no case the reservation may be made beyond 50% They have stated that 24 vacancies of Panchayat Sewak were vacant at the time of their appointment and out of those vacancies only eight respondents belonging to the Scheduled Caste have been appointed. As such it cannot be said that beyond 50% seats have been filled up from the reserved category. 7. The only question falls for determination is whether the vacancies of Panchayat Sewak in the district of Madhepura of the year. 1991 have been filled up by the reserved category candidates meaning thereby as to whether there was 100% reservation for filling up the vacancies of Panchayat Sewak of the year, 1991 in the district of Madhepura. 8. So far the legal position is concerned it is well settled that in no case the reservation can exceed 50% even if the vacancies are carried forward. (See Akhil Bhartiya Shoshit Karmachari Sangh vs. Union of India. AIR 1981 SC 298 ). It is equally well settled that for complying the rule of 50% a year should be taken as unit and not the entire strength of cadre, service or the unit as the case may be (See Indra Sawhney vs. Union of India, AIR 1993 SC 477 ) 9. Thus, in no case the reservation should exceed 50% and for complying the aforesaid principle a year should be taken as a unit. Thus, in no case the reservation should exceed 50% and for complying the aforesaid principle a year should be taken as a unit. For example if for a particular year the vacancies are 100 then only 50 of the said vacancies can be filled up by reserved category candidates even if number of reserved category candidates in the service is less than their quota. However, even in case of roster reservation cannot exceed 50% and when the cadre strength according to roster is full thereafter the roster does not operate as the percentage of reservation is achieved. The vacancies arising in the cadre, after the initial posts are filled, will pose no difficulty. In case when there is a vacancy in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. In this connection it will be apt to quote the law laid down by the apex Court in R. K. Sabharwal vs. The State of Punjab, AIR 1995 SC 1371 . "The reservations provided under the impunged Government instructions are to be operated in accordance with the roster to be maintained in each department. The roster is implemented in the form of running account from year to year. The purpose of "running account" is to make sure that the Scheduled Castes/Scheduled Tribes and Backward Classes get their precentage of reserved posts. The concept of running account in the impugned instructions has to be so interpreted that it does not result in excessive reservation, "16% of the posts . . ." are reserved for members of the Scheduled Castes and Backward Classes. In other words in a cad re of 100 posts when the posts earmarked in the roster for the Scheduled Castes and the Backward Classes are filled the percentage of reservation provided for the reserved categories is achieved. There would be no justification to operate the roster thereafter. The running account is to operate only till the quota provided under the impugned instructions is reached and not thereafter. Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. The percentage of reservation is the desired representation of the Backward Classes in the State Services and is consistent with the demographic estimate based on the proportion worked out in relation to their population. Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. The percentage of reservation is the desired representation of the Backward Classes in the State Services and is consistent with the demographic estimate based on the proportion worked out in relation to their population. The numerical quota of posts is not a shifting boundary but represents a figure with due application of mind. Therefore, the only way to assure equality of opportunity to the backward classes and the general category is to permit the roster to operate till the time the respective appointees/promotees occupy the posts meant for them in the roster. The operation of the roster and running account must come to an end thereafter. The vacancies arising in the cadre, after the initial posts me filled will pose no difficulty. As and when there is a vacancy, whether permanent or temporary, in a particular post, the same has to be filled from amongst the category to which the post belonged in the roster. For example the Scheduled Caste persons holding the posts at Roster-points 1, 7, 15 retire then these slots are to be filled from amongst the persons belonging to the Scheduled Castes. Similarly, if the persons holding the post at points 8 to 14 or 23 to 29 retire then these slots are to be filled from amongst the general category. By following this procedure there shall neither be shortfall nor excess in the percentage of reservation." 10. In the light of the aforesaid settled law now the question is as to whether appointment of respondent nos. 5 to 12 is vulnerable on the ground asserted by the petitioner. 11. In the counter affidavit it is not clearly stated as to what was the exact vacancies of the year, 1991. However, it is asserted in the counter affidavit that at the relevant time there were 183 posts of Panchayat Sewak in the district. Out of which 28 posts were reserved for Scheduled Caste Category and 10 posts were for the Scheduled Tribes Category Candidates. Fourteen posts of Scheduled Caste were vacant and as such authority decided to fill up 8 posts by Scheduled Castes Candidates. Thus, the stand of the respondents is that as the vacancies belonged to the Scheduled Caste Category they have appointed the respondents nos. Fourteen posts of Scheduled Caste were vacant and as such authority decided to fill up 8 posts by Scheduled Castes Candidates. Thus, the stand of the respondents is that as the vacancies belonged to the Scheduled Caste Category they have appointed the respondents nos. 5 to 12 belonging to the said category. 12. In my view, the whole approach adopted by the respondents is contrary to the well settled law which has been even reiterated by the State Government also vide Annexure-4. 13. If the stand taken in the counter affidavit is accepted then in that case all future vacancies have to be filled up by the reserved category candidates in each year, which will amount to 100% reservation which is not permissible in law. The proper course for the respondents would be to determine the total vacancies of a particular year and then to fill the same according to law. Only 50% of the posts should be filled up from the reserved category candidates and the remaining 50% vacancy is to be filled by the general category candidates. After the roster is achieved in the sense that posts which are meant for candidates of the respective category are filled up by the candidates of the said category then after the retirement of persons from the post of the respective category should be filled up from the persons belonging to the said category. For example the post of general category according to roster after retirement of general category candidate should be filled up by the general category candidates. In this way neither the general candidate will suffer nor the reserved category candidate will suffer and the percentage of quota will remain the same. 14. In this case as stated above there is no clear cut statement either on behalf of the State as to the number of vacancies of the year, 1991. A general statement has been made in the counter affidavit that total sanctioned post of Panchayat Sewak was 183 in 1991 and against that 168 Panchayat Sewaks are working and remaining 15 posts of Panchayat Sewak were vacant for Scheduled Caste and Scheduled Tribe Candidates. 15. According to the statement made in the countar affidavit filed on 19.8.96 out of the 183 sanctioned posts of Panchayat Sewak 28 posts were reserved for Scheduled Castes and 10 posts were reserved for Scheduled. Tribes and as such the respondents no. 15. According to the statement made in the countar affidavit filed on 19.8.96 out of the 183 sanctioned posts of Panchayat Sewak 28 posts were reserved for Scheduled Castes and 10 posts were reserved for Scheduled. Tribes and as such the respondents no. 5 to 12 were appointed. As stated above, the very basis for appointing only the reserved category candidates is not permissible in law as the same amounts to 100% reservation on the post filled up in 1991 by the authority. 16. It appears that even after 1991 appointments have been made to the post of panchayat Sewaks by making 100% reservation. The persons subsequently appointed are not respondents in this case and as such their appointments may not be cancelled. Even after accepting the case of the petitioner only appointment of four respondents out of eight are in excess of reservation. In such a situation instead of quashing the appointment of Respondent nos. 5 to 12 the proper order in this case is to direct the respondent Collector to consider the question of appointment of Panchayat Sewak from 1991 onwards afresh in the light of the observation made above. He will determine the yearly vacancy and in case it is found that in any. particular year more than 50% of the posts have been filled up by the reserved category candidates that appointment upto 50% only shall be valid and the remaining vacancy should be filled up by general category candidates after cancelling the appointment of persons in excess of quota. The reserved category candidates who are in excess of quota shall be adjusted in future vacancies of the reserved category candidates. In no case for any year more than 50% of the reserved category candidates shall be appointed as Panchayat Sewak. For example the excess reserved category candidates of 1991 will be adjusted in the vacancy of reserved category candidates in 1992 and in similar manner for subsequent years. 17. In the result, this application is allowed with the aforesaid observation.