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1999 DIGILAW 284 (GAU)

Paolun Tuboi v. State of Manipur

1999-08-20

P.G.AGARWAL

body1999
Heard Mr. K. Rabei Singh, learned counsel for the petitioners and Shri N. Pramodchandra Singh, learned senior counsel for the respondents. 2. These two writ petitions are being disposed of by this common judgment and order as same question of facts and law are involved. 3. This matter is in respect of filling up of vacancies in Grade D of MCS. As per the MCS Rules, 1965 as amended from time to time. 50% of the substantive vacancies are required to be filled up by direct recruitment and remaining 50% of such vacancies by promotion from amongst the officers mentioned in Schedule II of the said Rules. In the year, 1998 there were total 7 (seven) vacancies meant for filling up by promotion and accordingly the concerned Department submitted a requisition and also forwarded the list of 20 candidates for consideration. The petitioners are the members of the SC and ST and they are the holder of the post in the feeder cadre. The case of the petitioners is that as per the Manipur Reservation of Vacancies of Posts and Services (for SCs and STs) Rules, 1979 (hereinafter referred to as rules) and as per the roster out of 7 vacancies, 3 should go to the General, 3 for the ST and 1 for SC. The further case of the petitioners is that while making the proposal, the Govt has not prepared a separate list of eligible candidates belonging to reserved category (ST/SC) falling within the zone/extended zone, of consideration and the list submitted is against the rules and regulations/The petitioners therefore pray for a direction to prepare a separate list of SC/ST officers according to the 100 point roster. 4. The case of the respondents, State of Manipur is that the earlier requisition letter dated 1.7.98 was superseded by the requisition dated 15.10.98. Out of the total 7 (seven) vacancies for which requisition was made, 4 (four) vacancies occurred in the year, 1997 and 3 vacancies occurred in the year, 1998. Therefore, the extended zone of consideration for recruitment against year wise vacancies for the year, 1997 will beuptoSl No20 and for the year, 1998 uptoSl No 15 of the Combined Seniority List. According to the respondents, vacancies for the year, 1997-98 cannot be clubbedtogether and there is no infirmity in the requisition. 5. Therefore, the extended zone of consideration for recruitment against year wise vacancies for the year, 1997 will beuptoSl No20 and for the year, 1998 uptoSl No 15 of the Combined Seniority List. According to the respondents, vacancies for the year, 1997-98 cannot be clubbedtogether and there is no infirmity in the requisition. 5. There is no dispute at the Bar that the principles for promotion to selection post notified by the Govt order dated 20.11.92 read with Govt of India's office memorandum dated 22.4.92, has been adopted by the Govt of Mjanipur. 6. The first contention of the respondents is that 4 vacancies arose in the year, 1997 and other 3 vacancies arose in the year, 1998 and as such the vacancies are required to be filled up considering the case of the persons who are, within the consideration in that particular year and they cannot be clubbed together. The petitioners, on the other hand, claim that the Govt has resorted to clubbing c up such vacancies earlier in the matter of filling up of certain vacancies to the post of Joint Director in the Department of Agriculture and as such they are estopped from challenging the clubbing of posts. The respondents, on the other hand, submits that if any mistake was committed on one earlier occasion, it does not mean that the Govt is bound to repeat the said mistake and commit the wrong again. The relevant rules are altogether silent as regards clubbing of the vacancies for 2 (two) years. Clubbing together of vacancies for more than one year, on the other hand, creates its own types of problems. The person who is not within the zone of consideration for a particular year may be included or excluded if such cl ubbing together of vacancies is permitted. In this case, although the letter dated 15.10.98 the vacancies has been shown year wise, the Department has submitted a combined seniority list of 20 persons for considering the case of promotion for the above vacancies. 7. Admittedly, the vacancies for the year 1997-98 are going to be filled up in the year, 1999 or thereafter. In the case of Arati Roy Choudhury vs. Union of India, (1974) 1 SCC 717 , it was held that clubbing of the posts carrying the same scale of pay or grade is also constitutionally permissible. 7. Admittedly, the vacancies for the year 1997-98 are going to be filled up in the year, 1999 or thereafter. In the case of Arati Roy Choudhury vs. Union of India, (1974) 1 SCC 717 , it was held that clubbing of the posts carrying the same scale of pay or grade is also constitutionally permissible. Reiterating the above decision, in the case of PGI of Medical Education and Research vs. KL Narasim, (1997) 6 SCC 283 , the Apex Court held that even clubbing of single of the post of Assistant Professor in various disciplines carrying the same scale of pay and grade is constitutionally permissible. It will be relevant to quote the observation of the Apex Court in PtJI (supra): “In Ahmedabad St Xavier's College Society case a Bench .of nine Judges of this Court reiterated the rights of all minorities, while deciding whether making religion or language as the base of reservation in establishing and administering the educational institution of their choice is unconstitutional. Articles 25 to 30 are a befitting pledge to the minorities. The attempt of the Court interpreting those Articles should be such as to facilitate enjoyment of the rights. The object is to integrate hem in the main stream of the society to instill a sense of confidence in the minorities so that none might have a feeling that other section of the population would trample upon the fundamental rights guaranteed under the Constitution. The ratio equally applies to the prospective discrimination guaranteed to the Dalit and Tribes. The Dalits and Tribes are victims of social injustice, practice of untojuchabjlify and segragation from the mainstream of national life. The object of protective discrimination is to integrate them into the national main stream of a to establish an integrated social order with equal dignity of person in wrjich justice, social, economic, political are enjoyed by “them in equal measure with the general members of the society.” 7A. In the instant case the clubbing of the vacancies for the year, 1997-98 will not adversely affect the general candidates. Admittedly, the list of 20 persons submitted by the Department does not contain rjarrre of single candidate who belongs to the SC/ST and as such the posts reserved for them cannot be filled up by general candidates. Vacancies will have to be carried forward as per the rules. Admittedly, the list of 20 persons submitted by the Department does not contain rjarrre of single candidate who belongs to the SC/ST and as such the posts reserved for them cannot be filled up by general candidates. Vacancies will have to be carried forward as per the rules. But if certain vacancies are clubbed together then as per the OM dated 22.4.92 the normal zone of consideration would be double the number of vacancies ie 7 x 2 = 14 plus 4, ie 18, but the extended zone of consideration for SC/ST will be 5 times of the number of vacancies ie 7 x 5 = 35. It has been further, clarified that the intention to have an extended zone arises where adequate SC/ST are not available in the normal zone and in the extended zone only SC/ST (and not in other) coming within the extended field of choice be considered against the vacancies. 8. So far the impugned list of 20 candidates submitted by the Department concerned, it is apparently not correct and is not in accordance with rules. For the year 1997 there are apparently 4 vacancies, and as per the extended zone the total number of candidates shall be 20. The list, therefore, satisfies the requirements for the year, 1997. But out of these 4 vacancies, 2 vacancies are meant for SC/ST, which cannot be filled up from this list as it does not contain any SC/ST candidate as stated above. So, only two posts can be filled up by two candidates. The list will have balance of 18 candidates whereas two posts are to be carried forward. Hence, for the year, 1998 there will for 5 vacancies for which an extended zone of 25 names will be required, butjfhe APSC will have a list of 18 candidates only before them. As such the said list cannot be used for the purpose of filling up of vacancies for the year, 1998. 9. Another question that arises forbonsideration is whether the inclusion of names of general candidates in the list of extended zone, beyond the normal zone serves any purpose at all? Admittedly, general candidates whose names appear in the list beyond the normal zone of cpnsideratidri'cannot be considered for the purpose of promotion/of selection. Only SC/ST candidates are eligible for consideration of their case, if their names find place in the extended zone. Admittedly, general candidates whose names appear in the list beyond the normal zone of cpnsideratidri'cannot be considered for the purpose of promotion/of selection. Only SC/ST candidates are eligible for consideration of their case, if their names find place in the extended zone. The intention in having the extended zone is clear, The posts reserved for the SC/ST candidates to be filled up from a members of those categories. The learned counsel for the respondents, has, therefore, submitted that a separate list of candidates for filling up of the reserved vacancies should be prepared and submitted. However, it was not .provided under the rules. It is 2 repeatedly held by the Apex Court that interpretation of the Constitutional provisions should always be such as to enable the avai|ing of the rights given in the Constitution to the citizens and not to deny or denude them by process of interpretation and endeavour should be made to ensure enjoyment of the rights enshrined in the Constitution by every section of the society consistent with the policies and principles laid down in the Constitution (PGI supra). 10. In the case of Dr. Jagdish Saran, (1980) 2 SCC 768 , the Apex Court observed: “We hasten to keep aloof from reservations for backward classes and Scheduled Castes and Scheduled Tribes because the Constitution has assigned a special place for that factor and the mirror problems of inherited injustice demanding social surgery which if applied thoughtlessly in other situations may be a remark, which accentuates the malady.” 11. In the light of the above it is seem that the only reason/purpose for having an extended zone for consideration is to accommodate SC/ ST candidates to fill up the posts reserved for them. It is well settled that if a required number of SC/ST candidates are not available the vacancies which could not be filled up, shall remain unfilled and this will be treated as backlog vacancies. Just having an extended zone for consideration without any SC/ST candidates will not serve any purpose. As stated above, the names of the General candidates finding place in the extended list cannot even be considered. Hence, the natural inference is that if required numbers of SC/ST candidates are not available in the normal zone, the extended zone should contain the names of SC/ST candidates only. As stated above, the names of the General candidates finding place in the extended list cannot even be considered. Hence, the natural inference is that if required numbers of SC/ST candidates are not available in the normal zone, the extended zone should contain the names of SC/ST candidates only. If this is provided, then there will be no backlog for filling up of vacancies reserved for SC/ST and no occasion will be arisen for filling up the backlog vacancies by special recruitment. 12. The post of MCS Grade II as stated above are selection post and the OM dated 22.4.92 issued by the Govt of India is applicable. Schedule A at Annexure A/15 is the model roster 100 point showing the points to be adhered to SC/ST in the initial appointment/promotion to posts and services in the State. According to the petitioners, the roster at 100 point was completed and the present vacancies to fill up are from the roster point 104 to 110. For the year, 1997 one vacancy was meant for ST and one for the SC. There is no dispute to that from the respondents' side. However, for the year, 1998, according to the respondents, out of the three vacancies two vacancies are for General and one for the ST whereas the petitioners claim that two vacancies for the ST and one for the General. The respondents have not mentioned the roster point which are going to be filled up for the year, 1997 and 1998. 13. Under the circumstances, the requisition dated 15.10.98 along with the list of feeder officers is set aside. The Department is directed to submit a fresh 8 requisition for filling up the vacancies of 1997 and 1998 i.e. for the total 7 (seven) vacancies. The Department shall also show the roster point which are going to be filled up by the above requisition. Moreover, the list of 18 candidates for the normal zone and 35 candidates for the extended zone shall be submitted. 14. With the above directions and observation these two writ petitions stand disposed of. There will be no order as to cost.