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Gauhati High Court · body

1999 DIGILAW 14 (GAU)

Panna Lal Saha v. State of Tripura and others

1999-01-12

D.BISWAS

body1999
Judgement The precise controversy that calls for adjudication in this writ petition relates to the selection process for admission of in-service candidates in North Eastern Regional Institute of Science and Technology (for short, NERIST). The State of Tripura is allotted a seat every year for admission of in-service candidate in the aforesaid Institute for prosecuting studies in Degree module course. The petitioner who is a diploma holder in Civil engineering was selected and sponsored for admission in the aforesaid course in the year 1997 as a State candidate of Government of Tripura. But the petitioner could not avail of the nomination in view of a writ petition filed by another candidate alleging that no proper circulation was made before the petitioner was selected. The Engineer-in-Chief, Public Works Department, Government of Tripura issued a memorandum on 7-8-98 inviting all Heads of offices to sponsor the names of willing candidates for consideration for admission to the NERIST. In the said memorandum, there was no mention of any reservation for any socially backward classes, but later on, the Director of Higher Education vide notification dated 17-9-98 published in a local daily, namely, Manush Patrika, clarified that the admission to the aforesaid Institute would be made as per hundred point roster. In due course, the respondent No. 4 who belongs to Scheduled Tribe community was selected and sponsored. The writ petitioner who was an applicant failed to secure the nomination. The petitioner has challenged the aforesaid selection on the ground that the provisions of hundred point roster related to the appointment in Government service cannot be applied to the selection of candidates for admission in NERIST. It is also pleaded that the law laid down by the Supreme Court does not permit reservation of more than 50% of the seats in a year for candidates belonging to listed classes and as such the aforesaid notification issued by the Director of Higher Education providing for application of hundred point roster for the purpose of selection of candidates for admission is illegal, arbitrary and unreasonable and is violative of the rights guaranteed by Article 14 of the Constitution of India. 2. I have heard Mr. B. Das, learned senior counsel assisted by Mr. N. Majumder, learned counsel for the petitioner. Also heard Mr. U. B. Saha, learned Government Advocate for the State respondent and Mrs. J. Chakraborty, learned counsel for the respondent No. 4. 3. 2. I have heard Mr. B. Das, learned senior counsel assisted by Mr. N. Majumder, learned counsel for the petitioner. Also heard Mr. U. B. Saha, learned Government Advocate for the State respondent and Mrs. J. Chakraborty, learned counsel for the respondent No. 4. 3. The State respondent as well as the respondent No. 4 submitted their counter-affidavit separately controverting the contention raised by the petitioner. 4. The question that calls for answer is whether the State Government has the powers under Article 15 (4) of the Constitution to reserve seats for admission of in-service candidates to the aforesaid Institute for a single seat allotted in a year. According to Mr. B. Das, the provisions of Article 15 (4) of the Constitution are enabling provisions and not being a conferment of right upon the citizens cannot be read in isolation of the provisions of Article 16 of the Constitution. According to him, the decision to apply the hundred point roster published through the Government memorandum dated 16-7-98 can at best be regarded as an executive order as it is not in conformity with the provisions contained in Article 166 of the Constitution and it cannot be sustained as it is violative of the provisions of Art. 16. He further argued that every State action under provisions of the Constitution, has to be reasonable and if such action is in transgression of the rights guaranteed under Article 16, it has to be denounced as arbitrary. In support of his argument, he also referred to the following case laws :- i) AIR 1962 SC 36; ii) AIR 1966 SC 492 ; iii) AIR 1977 SC 2149 iv) AIR 1978 SC 597 ; v) AIR 1988 SC 2149 ; vi) (1990) 1 GLR 147; vii) AIR 1993 SC 477 : 1993 Lab IC 129. 5. MR. U. B. Saha, learned Government Advocate submitted that the policy framed by the State Government under Article 15 (4) of the Constitution is not under challenge in the writ petition and the petitioner who had taken part in the selection process cannot now challenge the process as he failed to secure nomination. According to him, the State is under constitutional obligation to make provisions for upliftment of socially backward classes and, keeping in mind the aforesaid objective, the State Government applied the reservation policy for admission of in-service candidates for prosecuting Degree Course. Mr. According to him, the State is under constitutional obligation to make provisions for upliftment of socially backward classes and, keeping in mind the aforesaid objective, the State Government applied the reservation policy for admission of in-service candidates for prosecuting Degree Course. Mr. Saha further clarified that every year a seat is allotted to the Government of Tripura for sponsoring the name of in-service candidates for admission to the NERIST and the Government while selecting candidates for nomination cannot ignore the claim of the backward classes for getting opportunity of higher education. The principle of protective discrimination permits such reservation and, therefore, the Government had to evolve a policy to apply the hundred point roster in order to discharge its constitutional obligation. In support of his contention, Mr. Saha has relied upon the following cases :- i) AIR 1972 SC 1375 ; ii) AIR 1985 SC 1495 ; iii) AIR 1996 SC 1766 (sic); iv) (1997) 5 SCC 201 ; v) (1997) 6 SCC 129 : AIR 1997 SC 2324 ; vi) (1997) 6 SCC 289 (sic); vii) (1997) 7 SCC 203 : AIR 1997 SC 3505 ; viii) AIR 1998 SC 1767 . 6. I have taken note of the aforesaid case laws cited at the bar. The powers of the State Government under Article 15 (4) of the Constitution are wide enough to enable it to make provisions for upliftment of Scheduled Castes and Scheduled Tribes in diverse ways including reservation of seats for admission to educational institutions. Article 15 (4) along with Article 29 (2), Articles 46 and 340 to 342 form a group of Articles for advancement of socially and educationally backward classes or citizens in matters of admission to educational institutions. The powers of the State Government to make reservation of seats for Scheduled Castes and Scheduled Tribes and for other backward classes have been well established since long. Moreover, the powers of the State Government to this effect is also not in controversy in this writ petition. Therefore, it is considered redundant to reproduce the various case laws cited at the bar. 7. The averment in the writ petition shows clearly that the decision of the State Government has been challenged on the ground that it is unreasonable and in violation of the rights of the citizens conferred under Article 16. Therefore, it is considered redundant to reproduce the various case laws cited at the bar. 7. The averment in the writ petition shows clearly that the decision of the State Government has been challenged on the ground that it is unreasonable and in violation of the rights of the citizens conferred under Article 16. That apart, the propriety of the extent of reservation has also been questioned by the Writ Petitioner. According to Mr. Das, reservation of a lone post in a year for a community is violative of the rights of equal treatment conferred by Article 14 of the Constitution and the law enunciated by the Supreme Court. According to Mr. Das, in the given situation, reservation of a lone seat in a year for a particular listed community would mean reservation in excess of 50% and from that point of view the application of the hundred point roster is violative of the constitutional guarantee enshrined in Article 14. The intention of the State Government reflected in the memorandum dated 16-7-98 and the clarification given in the counter-affidavit makes it abundantly clear that the reservation policy is sought to be applied by rotation from year to year for different categories of candidates. There appears to be no reason to find fault with this policy from the point of view of equitable distribution of the seats which are assured at least for the period up to 2001. In order to strike a balance in the process of selection, the application of the roster by rotation cannot be said to be in violation of the constitutional rights of the petitioner. The situation here cannot be placed at par with that of a single cadre post. If a loan seat in a year is kept unreserved, the candidates from the listed community will have remote possibility in getting nomination for admission to the engineering course. It may be mentioned here that the seat was treated as unreserved last year, and for the year at hand it goes to the candidate belonging to the Scheduled Tribe community. Again, as per this roster, the seat will be filled up next year by a candidate from the unreserved category. It may be mentioned here that the seat was treated as unreserved last year, and for the year at hand it goes to the candidate belonging to the Scheduled Tribe community. Again, as per this roster, the seat will be filled up next year by a candidate from the unreserved category. To keep the seat open every year would mean negation of the constitutional obligation on the part of the State Government to make special provisions for the candidates belonging to the socially backward communities and, as such, the policy of the State Government to apply the hundred point roster for selection of in-service candidates cannot be said to be arbitrary and unreasonable. The candidates belonging to the unreserved category will have their due as per this roster in succession. The balance sought to be maintained by the Government through its policy cannot, under the given circumstances, be said to be in violation of the constitutional right of the writ petitioner. The provisions for reservation not exceeding 50% in respect of posts in service in a year as laid down by the Supreme Court in the case of Indra Sahani, AIR 1993 SC 477 : (1993 Lab IC 129) cannot be made the ratio in this case for obvious factual difference. 8. Mr. Das citing the length of the service of the writ petitioner submitted that selection of a junior officer like the respondent No. 4 to the deprivation of the petitioner would usher in gross injustice amounting to discrimination. But for the reasons given above, this argument does not inspire this Court to interfere with the decision of the State Government. The candidates from general category, as has already been stated hereinbefore, will have their due in turn. Therefore, the decision of the State Government cannot be deprecated as unjust and unreasonable so as to make out a case of infringement of the petitioners right. 8A. The Government policy contained in the memorandum dated 16-7-98 although not in proper form cannot be a ground for frustrating the intention of the State Government to apply hundred point roster which, in the opinion of this Court, is in fitness of the circumstances of this case. Since admittedly the NERIST does not have the reservation policy of their own, the State Government had no option but to apply its own roster in order to achieve the constitutional goal. Since admittedly the NERIST does not have the reservation policy of their own, the State Government had no option but to apply its own roster in order to achieve the constitutional goal. When the intention of the State Government is to implement the constitutional mandate, the policy laid down vide memorandum dated 16-7-98 cannot be ignored for being not in proper form. Till a proper legislation is made in this direction, the Government policy communicated vide the aforesaid memorandum shall govern the field. 9. Whether the candidate selected is a Junior Engineer or an Assistant Engineer will make no difference for the purpose of nomination since the respondent No. 4 has all the requisite qualifications. The objection raised by the petitioner on this count does not appear to have any significance. 10. In the result, this writ petition being devoid of merit is dismissed. Considering the circumstances, the parties are directed to bear their respective costs. Petition dismissed.