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2004 DIGILAW 231 (GAU)

Sahabuddin Laskar v. State of Assam

2004-03-29

P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. The Petitioner before us is serving as Superintendent in the Office of the Chief Engineer, P.W.D. There is a combined Gradation list of the staff of the Chief Engineer, P.W.D. (Roads, Chief Engineer, P.W.D. (Building) and Chief Engineer, P.W.D. (Hills). There are two posts of Registrars and the matter relates to appointment and promotion to the post of Registrar, which fell vacant with effect from 1.8.2003 on the retirement of incumbent. The Petitioner was allowed to take over the charge as the Registrar, on retirement of Shri B.P. Das on 31.7.2003, being the senior-most Superintendent in the Department. Thereafter, a selection process was undertaken, wherein the Respondent No. 4, Sri Amal Senchowa was promoted and appointed as Registrar. The Petitioner has challenged the said appointment in the present Writ petition. The challenge is on the ground that the Petitioner is the seniormost person and, as such, applying the roster system will be violative of the Article 14 and 16of the Constitution and it is further submitted that as their are only two post of Registrar, such roster system does not apply. In this case, there is no dispute at the Bar that the Respondent Amal Senchowa belonged to the Scheduled Caste community. 2. The Respondent State has filed a reply stating, inter alia, that the two post of Registers are filled up as per the provisions of the Assam Scheduled Caste and Scheduled Tribes (Reservations of Vacancies in Services and Posts) Act, 1978. The department is maintaining a 20 Point Roster for promotion and as per the said roster the present vacancy has arisen a roster point No. 12, which is meant for Scheduled Caste. The case of four persons, including the Petitioner and the Respondent No. 4 were considered by the Selection Committee and as Respondent belongs to Scheduled Caste Community and he comes within the zone of consideration and the post was reserved for Scheduled Caste community, his selection was made and name was recommended by the Selection Committee. 3. While admitting this writ petition, this Court as an interim measure, allowed the writ Petitioner, who is discharging the function of Registrar in the Office of the Chief Engineer, P.W.D. (Building), to continue as such. 3. While admitting this writ petition, this Court as an interim measure, allowed the writ Petitioner, who is discharging the function of Registrar in the Office of the Chief Engineer, P.W.D. (Building), to continue as such. The private Respondent has filed an application for vacation of the said interim order stating, inter alia, that the Respondent being the selected candidate should be allowed to take over the charge. Learned Counsel has submitted that the Misc. Application and the Affidavit file by them in support of the same may be treated as their counter affidavit in this writ petition. 4. As directed by this Court, the Respondent authority have produced the relevant record and the Roster Register. The relevant file shows that name of four persons were considered, including the Petitioner Sahab Uddin Laskar and the Respondent No. 4, Amal Senchowa and the sole ground on which the Respondent has been selected is that he belongs to Scheduled Caste Community and the vacancy has arisen at Sl. No. 12, which is reserved for Scheduled Caste candidate. 5. Rule 7 of the Assam Directorate Estt. Service Rules, 1973 reads as follows: 7. Registrar. Appointment shall be made by the appointing authority by promotion on the basis of seniority-cum-merit from amongst Superintendents of the service who have rendered service as such for a period of not less than two years on the first day of the year in which the selection is made. 6. In this case is not disputed that the Petitioner Sahab Uddin Laskar is the seniormost Superintendent. The eligibility of the Respondent Amal Senchowa under Rule 7 is also not challenged. 7. We have perused the Register produced by the Respondent authorities and find that the present vacancy has arisen at roster point No. 12, which is meant for Scheduled Caste candidate. The earlier vacancies were also filled up as per the roster point except the vacancy No. 11, which is allowed to be filled up by a general candidate by an order from the competent authority as no S.T. (P) candidate was available and the backlog was allowed to be carried over by future vacancy. 8. Sri A.M. Mazumdar, learned Sr. Counsel for the Petitioner has submitted that this being a case of two posts of Registrar, the provisions of the Assam Scheduled Caste and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978 is not applicable. 8. Sri A.M. Mazumdar, learned Sr. Counsel for the Petitioner has submitted that this being a case of two posts of Registrar, the provisions of the Assam Scheduled Caste and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978 is not applicable. Learned Counsel has drawn our attention to the Schedule, which provides: The Schedule The reservation for the members of the Scheduled Castes and the Scheduled Tribes in services or posts in an establishment shall be given effect to in the following manner, namely: (i) a roster of twenty vacancies will be necessary to give effect to the reservation of vacancies for the Scheduled Castes and the Scheduled Tribes. The roster given below shall be adopted for the purpose by each establishment. 1st Vacancy Scheduled Tribes (Plains) 2nd Vacancy Unreserved 3rd Vacancy Scheduled Castes. 4th Vacancy Unreserved 5th Vacancy Unreserved 6th Vacancy Unreserved 7th Vacancy Scheduled Tribes (Hills) 8th Vacancy Unreserved 9th Vacancy Unreserved 10th Vacancy Unreserved 11th Vacancy Scheduled Tribes (Plains) 12th Vacancy Scheduled Castes. 13th Vacancy Unreserved 14th Vacancy Unreserved 15th Vacancy Unreserved 16th Vacancy Unreserved 17th Vacancy Unreserved 18th Vacancy Unreserved 19th Vacancy Unreserved 20th Vacancy Unreserved Reservation points Scheduled Tribes (Plains) 1.11 Scheduled Castes 3.12 Scheduled Tribes (Hills) 7 .... .... It is therefore submitted that there should be minimum 20 Posts in order to apply the roster or the policy of reservation. 9. Sri Mazumdar has also drawn analogy from the decision of the Apex Court in the case of Post Graduate Institute of Medical Education and Research, Chandigarh v. Faculty Association and Ors. (1998) 4 SCC 1 , wherein the Constitution Bench held: In a single post cadre, reservation at any point of time on account of rotation of roster is bound to bring about a situation where such a single post in the cadre will be kept reserved exclusively for the members of the backward classes and in total exclusion of the general members of the public. Such total exclusion of general members of the public and cent percent reservation for the backward classes is not permissible within the constitutional framework. The decisions of this Court to this effect over the decades have been consistent. Such total exclusion of general members of the public and cent percent reservation for the backward classes is not permissible within the constitutional framework. The decisions of this Court to this effect over the decades have been consistent. So far the single post cadere service is concerned, the law stands settled in view of the decision of the Constitution Bench but as regards the requirement of reservation, the Apex Court had observed in the above case as below: There is no difficulty in appreciating that there is need for reservation for the members of the Scheduled Castes and Scheduled Tribes and Other Backward Classes and such reservation is not confined to the initial appointment in a cadre but also to the appointment in a promotional post. It cannot however be lost sight of that in the anxiety for such reservation for the backward classes, a situation should not be brought about by which the chance of appointment is completely taken away so far as the members of other segments of the society are concerned by making such a single post cent percent reserved for the reserved categories to the exclusion of other members of the community even when such a member is senior in service and is otherwise more meritorious. So far the question of reservation is concerned, the Apex Court has further observed: Hence, until there is plurality of posts in a cadre, the question of reservation will not arise because any attempt of reservation by whatever means and even with the device of rotation of roster in a single post cadre is bound to create 100% reservation of such post wherever such reservation is to be implemented. 10. In the Chambers 20th Century Dictionary, 1976 Edition, the word 'plural' has been defined as 'numbering more than one'. Admittedly, the post of Registerer were two, i.e. more than one and hence the decision in P.G.I. Medical Education and Research (Supra) is not applicable. On the contrary, as quoted above, the question of reservation will arise as there are more than one post. We also find no force in the submission of Shri Mazumdar that in order to attract the roster there should be minimum of 20 posts. Some of the States maintain 40 Point roster or 100 Point roster. On the contrary, as quoted above, the question of reservation will arise as there are more than one post. We also find no force in the submission of Shri Mazumdar that in order to attract the roster there should be minimum of 20 posts. Some of the States maintain 40 Point roster or 100 Point roster. Does it therefore mean that in order to apply the policy of reservation, there should be minimum of 40 or 100 posts ? The maintenance of 20 or 40 Point roster is in order to facilitate the working of the provisions of reservation meant to benefit the Scheduled Caste and Scheduled Tribes and Other Backward Classes persons. Further, on perusal of the roster register, we find that the above roster was followed meticulously and only on one occasion, when a Scheduled Tribes (Plains) candidate was not available, the vacancy was carried forward with the consent of the W.B.P.C. Department. In the present case, the vacancy was meant for Scheduled Caste community and when one eligible candidate was available, the post was offered to him, by passing the claim of the seniormost, who happened to belong to general category. Considering the spirit of the Constitution and the policy of reservation, we find no force in the submission that the roster Point 20 will be applicable in case there are minimum 20 vacancy/posts in the department. We are also unable to accept the analogy of decision in the post P.G.I. Medical Education and Research (Supra) that when reservation is refused in the single post cadre, is should be made non-applicable in a twin post cadre also. We hold that reservation will be available in a cadre, where there is more than one post. 11. In view of the above, we find no merit in this writ petition. Accordingly, the writ petition stands dismissed. The interim order stands vacated. There will however, be no order as to costs. Petition dismissed.