Research › Search › Judgment

Himachal Pradesh High Court · body

2001 DIGILAW 127 (HP)

ANJALI SONI v. H. P. PUBLIC SERVICE COMMISSION

2001-06-29

AVTAR SINGH, NARINDER SINGH THAKUR

body2001
JUDGMENT HONBLE MR. NARINDER THAKUR, MEMBER (JUDL.): 1. The applicant, in the present original application has prayed mainly for following reliefs :- (i) That the impugned Notification at Annexure-A3 whereby the available two posts of Assistant Professors in the Department of OBG have been offered to General Category and no post has been reserved for Scheduled caste category, may be struck down: (ii) That the respondent Department may be directed to reserve one post for Scheduled Caste category in the cadre of Assistant Professors (OBG) and applicant may be held entitled for consideration for appointment as a Scheduled Caste category candidate, with all consequential benefits. 2. The grievance of the applicant is that since the inception of the cadre of OBG in IGMC, not even a single post of the said cadre has been filled by reservation, by appointing a schedule caste candidate. The applicant submitted a representation dated 29.9.2k, (Annexure-A2) stating therein that she belongs to the Scheduled Caste category and is eligible for/ appointment to the post of Assistant Professor (OBG). However, vide impugned advertisement dated 29.4.2k, (Annexure-A3) the applications were called for two posts of Assistant Professors (OBG) (General category). The applicant in pursuance to this advertisement made another representation dated 4.5.2k, Annexure-A4 claiming that one post should h /e been reserved for the scheduled Caste category, as per reservation Policy of the State. 3. This action of the respondents/State has been put to challenge by the applicant on many counts in as many as the applicant states that vide instructions dated 29.8.1998 (Annexure-A5) para 5(c) in a cadre where the method of direct recruitment and promotion is applicable and the reservation is applicable to both the methods, two separate rosters are to be maintained, depending upon the percentage of reservation prescribed for each mode. The applicant further states that, however, one thing is clear that two rosters, are not to be maintained in a case where the reservation is not applicable for promotion. Thus, clear implication of the sub para is that in a cadre where there is no reservation in promotion, only one roster is to be applied, which has been maintained for direct recruitment. 4. Thus, clear implication of the sub para is that in a cadre where there is no reservation in promotion, only one roster is to be applied, which has been maintained for direct recruitment. 4. The other grounds of challenge put forth by the applicant is that as per para 5(e) (Annexure-A5) in a small cadre upto 13 posts, roster is prescribed, in which initial operation of the roster require adjustment of existing appointment in the cadre, taking account of number of posts in the cadre. Thereafter posts are to be identified for determining the reservation roster points by replacement. This position would be clear from second appendix to Annexure-B with memorandum at Annexure-A15. The Cadre strength of Assistant Professors in OBG, at present is stated to be as 6. Hence, roster referred to above would be applicable for the purpose of identifying the points reserved for scheduled caste category. 5. The applicant has further stated that as on 12.12.1999, when the instructions At Annexure-A5, became applicable, three Assistant Professors in the Department of OBG were in position. All these Assistant Professors were holding these posts by way of direct recruitment, there being no channel of promotion at this stage. Hence, these three persons consumed the three roster points as referred to above. In the year 1999, two posts of Assistant Professors, only one remained filled up and two fell vacant. In 2000 three Assistant Professors have been appointed by way of promotion according to new recruitment and Promotion Rules, according to which 50% posts are to be filled up by direct recruitment and 50% by promotion. Thus, when these three persons were promoted the position was that there was already one direct recruit and remaining 3 posts were occupied by the promotees. Thus, as a result of these promotions, four Assistant Professors came into position. 6. The example given by the applicant is that in the cadre strength of 6, when on the date of instructions A-5 came into force w.e.f. 12.12.1999, three persons by way direct recruitment were already in position. In 2000, 4th, 5th and 6th places were filled up by way of promotions. Now respondents/State is seeking to fill-up 7th and 8th places vide impugned advertisement. Initial recruitment in the 7th point thus, goes to scheduled Caste category, as per second appendix to Annexure-B in the instructions at Annexure-A5. In 2000, 4th, 5th and 6th places were filled up by way of promotions. Now respondents/State is seeking to fill-up 7th and 8th places vide impugned advertisement. Initial recruitment in the 7th point thus, goes to scheduled Caste category, as per second appendix to Annexure-B in the instructions at Annexure-A5. Thus, one seat should have been kept reserved for the Scheduled Caste Category. It is further submitted that the object of post based roster is to maintain overall representation of a particular category by both the methods of appointments. When the reservation is applicable to both the methods and achieve a adequacy of reservation through the available mode of appointment to which the reservation is applicable. Like-wise the excess of representation to the particular category is to be avoided by taking account of roster points of appointments made through both the modes of appointment,, when the reservation applies to both the methods. It is further averded by the applicant that as per the instructions at Annexure-A5, there is a note to Annexure-A, which provides that if in any cadre in the proportion to the reservations percentage, the quota in reserved category comes to. 50 or above, then one post is to be given to the category, by making necessary adjustment so as to ensure adequate representation to he category in relation to prescribed percentage. That even if cadre strength of the posts in question is to be considered as three even then respondents/ department is bound to make available at least one post to scheduled caste, because in that event, there being 3 direct recruits on 12.12.1997 one present post fell at the roster point 4 and 5. By the roster point 5 share of Scheduled Caste category comes to. 75. This position is further strengthened by the fact that in the present advertisement one post was already reserved for Scheduled Caste category and in the cadre in question, since its inception, not even a single post has been filled up by appointment of a Scheduled Caste candidate on the basis of Reservation Policy. 7. Reply has been filed by the respondents / State. 7. Reply has been filed by the respondents / State. It is stated that the cadre for the purpose of roster was meant, a particular grade and shall comprise the number of posts to be filled up by a particular mode of recruitment Rules and where the recruitment rules proscribe a ratio of 50:50 for direct recruitment and promotion, two rosters, one for direct recruitment and one for promotion (where reservation for promotion applies), would be drawn up on the lines of respective model rosters. In the instant case, posts of Assistant Professors are to be filled up 50% by promotion from amongst the lecturers having three years service, failing which appointment/ selection from amongst GDOs having 3 years teaching experience as a Lecturer/ Registrar etc. in the concerned specialty, after post graduation, failing which by direct recruitment. Remaining 50% posts of Assistant Professors to be filled up by direct recruitment possessing the requisite qualifications and teaching experience. Total cadre of Assistant Professors in the speciality of OPG in the Department of medical Education consists of 6 posts. Therefore, it is clear that 3 posts are to be filled up by promotion from the serving doctors and remaining 3 posts by direct recruitment. The H.P. Medical Education service Rules 1995, which have been repealed with the commencement of H.P. Medical Education Rules 1999, provide, recruitment to the posts of Assistant Professors hundred percent by direct recruitment. Therefore, all the 3 posts of Assistant Professors which were existing at the time of commencement of the instructions of the Department of Personnel dated 20.8.1998, were direct posts. Now with the commencement of H.P. Medical Education Rules, 1999 the posts are now to be filled up 50% by promotion and 50% by direct recruitment. Accordingly, the replying respondent has filled up 50% posts by promotion which were available under the promotion quota and the remaining 2 posts were sent to the commission for filling the up by direct recruitment. As and when the next post of Assistant Professor fell vacant it will also be sent to the Commission for filing up by direct recruitment. Since, the services of the doctors are already Class-I, and no reservation is applied for promotion if the promotion is within Class-I, reservation roster in respect of 50% posts to be filled up by promotion cannot be applied. Since, the services of the doctors are already Class-I, and no reservation is applied for promotion if the promotion is within Class-I, reservation roster in respect of 50% posts to be filled up by promotion cannot be applied. The contention of the petitioner that three posts should also be included for the purpose of determining the reservation, has no force in the light of instructions of the department of personnel dated 20.8.1998. Thus, the roster in the present case is to be maintained only for 3 posts meant to be filled up by direct recruitment. The Second Appendix to Annexure-B, of the above instructions which deals with the model roster for cadre strength upto 13 posts, clearly indicates that first 6 posts for direct recruitment, shall be un-reserved and only 7th post will go to the Scheduled Caste. Thus, the roster has already been applied by the respondents/State and the present posts have rightly been advertised for the General Category. 8. In the reply of the respondent Public Service Commission, it has been stated that the applicant does not fulfil the requisite qualification No. Ill, prescribed in the R&P Rules for the post of Assistant Professor (OBG) and therefore, she is ineligible. In response to the advertisement about 13 candidates have applied out of which only 6 candidates found eligible and the candidature of the applicant was rejected for want of requisite qualifications i.e. 3 years teaching experience after doing the post Graduation. Now, she has come after being rejected. 9. Reply has been filed by the newly added respondent/candidate. Rejoinder has also been filed by the applicant. 10. We have heard the learned counsel for the respective parties and learned Addl. Adv. General at length and perused their pleadings and record. 11. The question that arises for our determination is that while V applying the roster whether the whole cadre strength consisting of promotees and direct recruits is to be clubed ? 12. Para 5 of the instructions (Annexure-A5) lays down the principles for preparing the roster elaborated upon in the explanatory notes. Sub para (a) states that since the reservation for OBC(s) does not apply in the promotions, there shall be a separate roster for direct recruitment and for promotion. 12. Para 5 of the instructions (Annexure-A5) lays down the principles for preparing the roster elaborated upon in the explanatory notes. Sub para (a) states that since the reservation for OBC(s) does not apply in the promotions, there shall be a separate roster for direct recruitment and for promotion. Para 5 (c) states that the cadre means a particular cadre and shall comprise the number of posts to be filled up by a particular mode of recruitment Rules. The applicant has relied upon a judgement of the Honble Apex Court, reported in AIR 1993 SC 473 titled as Indira Sawhney Vs. Union of India para 121.- "(7). Article 16(4) does not permit provisions for reservations in the matter of promotion. These rules, shall however, have only prospective operation and shall not affect the promotion already made, whether made on regular basis or on any basis. We direct that our decision on this score shall operate only prospectively and shall not affect the promotion already made whether on temporary officiating or regular permanent basis. It is further directed that where there is reservation already provided in the matters of promotions, be it Central Services or State Service or for that matter the service under any Corporation/Authority or Body falling under the definition of State under Article 12 - such reservation may continue in operation for a period of five years from this date. Within this period it would be open to the appropriate Authorities to revise/modify or re-issue the relevant Rules to ensure the achievement of objective of Article 16(4). If any authority thinks that in ensuring adequate representation of backward classes of citizens in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it to do so," (Ahmadi J. expressed no opinion on this question, up-holding preliminary not to be impermissible for the State to extend concessions and relaxation to the members of the reserved categories in the matter of promotion without compromising the efficiency of the administration. 100-107." 13. From the above it is evident that if any authority, thinks that for ensuring adequate representation of Backward Classes of the citizens, in any service, Class or category, it is necessary to provide for direct recruitment therein, it shall be open to it to do so. 100-107." 13. From the above it is evident that if any authority, thinks that for ensuring adequate representation of Backward Classes of the citizens, in any service, Class or category, it is necessary to provide for direct recruitment therein, it shall be open to it to do so. Thus, it is at the discretion of the authority to see the adequacy of representation and secondly, it is about the OBC(s) only. Therefore, the above authority, is of no help to the applicant. 14. Respondent No. 1 has taken a preliminary objection with regard to the maintainability of the present application, on the ground that as the applicant was not eligible to apply for two posts advertised, as she did not have three years teaching experience as a Lecturer/Registrar, she has no locus-standi to file the resent case. It has further been submitted that because the applicant has submitted her application pursuant to the advertisement Annexure-A3, and because her candidature has been rejected by respondent No. 1, which rejection, has not been challenged, she cannot be now allowed to turn around to challenge the process after it became evident to her that she was not eligible for the said posts. 15. Respondent No. 3, have also challenged the maintainability of the case on the same grounds, as has been taken by the respondent No. 1 and have cited the following judgements in this regard: (i) AIR 1986 SC 1443. (ii) Service Law Reporter 1997(2) 606. (iii) Shimla Law Cases 1997 (2) 157. (iv) Shimla law Cases 1998 (2) 157. (v) Shimla Law Cases 1997 (I) 422. 16. The respondents have further submitted that instructions Annexure A-5, define the cadre as "Cadre for the purpose of roster shall mean a particular grade and shall comprise the number of posts to be filled-up by a particular mode of recruitment." 17. It has been further submitted by the respondents that in the Model roster, separate roster have been given for direct recruitment and promotion, where reservation is applicable in promotion. There is no roster which can be said to be the amalgamated roster of direct recruits and Promotees. Hence, what can not be done directly, cannot be allowed to be done indirectly. When reservation is not applicable for promotion, the seats to be filled up by way of promotion cannot be taken into account to count cadre strength for applying 13 point roster. Hence, what can not be done directly, cannot be allowed to be done indirectly. When reservation is not applicable for promotion, the seats to be filled up by way of promotion cannot be taken into account to count cadre strength for applying 13 point roster. Further, this is not the case where no reservation has been provided for reserved category. Reservation has been provided. 4th replacement point now belongs to scheduled caste candidate. 18. In the light of above discussion, we are of the considered view that while applying roster, the whole cadre strength consisting of promotees and direct appointees, cannot be clubbed. The roster will apply separately for direct recruitment and promotions and since no reservation is applicable for promotion being from Class-I posts, the same cannot be clubbed with the direct recruits for the purpose of applying roster. Thus, there is no illegality in the action of the respondents/State. In view of the foregoing discussion, we find no merit in the original application and same is dismissed with no orders as to costs. Order dated 16.5.2k, is hereby vacated.