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2006 DIGILAW 35 (PAT)

Awadhesh Prasad Singh v. State Of Bihar

2006-01-09

RADHA MOHAN PRASAD

body2006
Judgment 1. In this writ petition, the petitioners are aggrieved by the Governments decision, contained in Annexure-16 read with Annexure-17, the validity of which has been challenged in I.A. No 1432/04, whereby and whereunder 17 vacant posts of Chief Engineer (Civil) have been sought to be filled by promotion from any Scheduled Castes & Scheduled Tribes candidates i.e. 9 posts from Scheduled Castes and 8 posts from Scheduled Tribes. 2. It seems that the said vacancies are sought to be filled since after incorporation of Article 16(4A) and Article 16(4B) in the Constitution by Constitutions 77th Amendment Act, 1995 & Constitutions 81st Amendment Act, 2000 respectively. Pursuant to the said amendment, the State also enacted The Bihar Reservation of Vacancies in Posts and Services (For Scheduled Castes, Scheduled Tribes & Others Backward Classes) (Amendment) Act, 2004 i.e. Bihar Act 13 of 2004. 3. This court has been informed that vires of the Amendment in the Constitution is under challenge before the Apex Court, and the Apex Court has passed certain interim orders also regarding those general category candidates (petitioners) who are already occupying the posts which fall under the reserved category as per the said amendments. 4. Earlier, some of the officers including Hiralal Ram had approached this Court seeking appropriate direction to fill-up the available vacancies in the rank of Chief Engineer meant for reserved category candidates. In case of Hiralal Ram vs. The State of Bihar & Ors., (C.W.J.C. No. 6391/ 03), which relates to Road Construction Department, this Court after considering various interim/clarificatory orders passed by the Apex Court, expressed displeasure on account of inaction of the State in sitting over the promotion matter only on the plea of pendency of the matter before the Apex Court. Considering the facts and circumstances, the writ petition was disposed of vide order dated 5.8.2005 with direction to the State authorities namely the Respondent Nos. 1 & 2 to consider the case for promotion in the reserved category against the available vacancies for reserved candidates and issue notification also regarding the same positively within two months from the date of receipt of production of a copy of the said order. However, the present matter relates to Water Resources Department. 5. The petitioners are general category candidates and their grievance is that in the garb of the Amendment their cases are being arbitrarily ignored by the impugned decision. 6. Mr. However, the present matter relates to Water Resources Department. 5. The petitioners are general category candidates and their grievance is that in the garb of the Amendment their cases are being arbitrarily ignored by the impugned decision. 6. Mr. Mahto, learned Senior counsel appearing for the petitioner has fairly submitted that since the question of vires of various Constitution amendments is under consideration by the Apex Court, he does not want to invite this Court for going into the said question in the present case. However, he submitted that the impugned decision on the face of it is bad and contrary to the amended provisions of the Constitution itself as the State virtually has decided to make 100 per cent reservation in the garb of implementation of the amended provision, which is contrary to the decision of the Apex Court in the Case of Indra Sawhney & Ors. vs. Union of India & Ors., reported in 1992 Suppl. Ill S.C.C. page-217 and in the case of R.K. Sabharwal & Ors. vs. The State of Punjab & Ors., reported in 1995(2) SCC page 745. He conceded that Article 16(4A) gives benefit in the matter of reservation of past vacancies also, but for only those which remained unfilled. 7. The respondent and intervenor-re-spondents have filed various affidavits and the State has filed a supplementary counter affidavit today trying to explain the Roster point and the vacancies meant for reserved categories. The State has furnished details in the Chart at Annexure-A to the supplementary counter affidavit. 8. Learned counsel for the State has submitted that as per the understanding of the State authorities of the amended provision in the Constitution, the authorities have fixed the Roster Point as per the vacancies admissible for reserved categories candidates since 1971, even though they were filled up by the candidates belonging to general category. 9. Mr. Prasad & Mr. Singh, learned senior counsel appearing for the two intervenors-respondents have submitted that it is true that from the materials which have been made available by the State, it is difficult to ascertain as to how much vacancy remained unfilled and since when. Under such circumstances, they fairly submitted that the impugned decision requires re-consideration by the State authorities in the light of the amended provisions of the Constitution including the Bihar Act 13 of 2004. 10. Under such circumstances, they fairly submitted that the impugned decision requires re-consideration by the State authorities in the light of the amended provisions of the Constitution including the Bihar Act 13 of 2004. 10. This Court appreciating the fair approach of the learned counsel for the intervenors, does not consider the necessity to deal with the vacancies/roster as shown in Annexure-A to the supplementary counter affidavit. But after going through the facts and Annexure-A, I am constrained to say that the State authorities have completely misconstrued the amended provision of the Constitution as well as the Bihar Act 13 of 2004. 11. Article 16(4A) only provides that nothing in the said Article shall prevent the State from making any provision for reservation [in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and Scheduled Tribes which in the opinion of the State are not adequately represented in the services under the State. 12. Article 16(4B) provides that nothing in the said Article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year. 13. In the light of the said provision, the State also vide Section 2 of Bihar Act 13, 2004 added proviso to Section 4(1)(B) of Bihar Act 3 of 1992, which reads as follows: "Provided that backlog and/or carried forward vacancies would be treated as a separate and distinct class and wiil not be considered together with the reserved vacancies of the year in which they are being filled up, for determining the ceiling of 50 per cent reservation on total number of vacancies of that year. In other words, 50 per cent maximum limit of reservation would be applied only for the vacancies which fail in the current year during which the process of filling up the vacancies are being adopted and backlog and carried forward vacancies of previous years with respect to reserved classes would be treated as a separate and distinct class and would be exempted from maximum limit of reservation." 14. Thus, reading of these provisions clearly demonstrate that the "State has been vested with full power to consider any unfilled vacancies of a year, which are reserved for being filled up in that year in accordance with any provision for reservation made in clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies was not to be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of 50 per cent reservation on total number of vacancies of that year, obviously means that the earlier unfilled vacancies meant for reserved category candidates are not to be clubbed with the vacancies of the year in which they are being filied up for determining the ceiling of 50 per cent reservation on total number of vacancies of that year. In other words, the earlier unfilled vacancies for reserved category candidates are to be treated separately from the vacancy of the year in which they are being filled up for determining the ceiling of 50 per cent reservation. 15. For example, assuming that the total number of posts in a particular cadre is 100. Out of which 40 posts had already been filled up earlier by candidates belonging to general category and 60 posts remained vacant. Later, for general category 10 more vacancies occurred on account of retirement, death, retrenchment etc. and the total 70 vacant posts became available in a particular year in which the Government decided to fill up. In such cases, 60 unfilled vacancies of the earlier years are to be dealt completely separately, and those meant for reserved category candidates will obviously go to reserved category candidates as per roster while filling up the total 70 vacancies. and the total 70 vacant posts became available in a particular year in which the Government decided to fill up. In such cases, 60 unfilled vacancies of the earlier years are to be dealt completely separately, and those meant for reserved category candidates will obviously go to reserved category candidates as per roster while filling up the total 70 vacancies. So far as the vacancies occurring in the year of consideration, the State will fill them up following the roster point without clubbing of the earlier vacancies meant for reserved category candidates with the said vacancies of the year of consideration. 16. Perusal of Annexure-16 shows that there are only 19 sanctioned posts of Chief Engineers, which remained with the State of Bihar after its reorganisation. Out of which, two are already filled up by the reserved category candidates since prior to the year of consideration. Thus, remained 17 vacancies which are sought to be filled up; 9 by Scheduled Castes candidates and 8 by Scheduled Tribes candidates. The funniest part appears from the impugned note contained at Annexure-16 is that the State has calculated at Roster Point like 227, 228 onwards with respect to Scheduled Castes candidates and 236, 237 onwards with respect to Scheduled Tribe candidates, when it is admitted by the State itself that the total posts of Chief Engineer is only 19, out of which two are filled up since before the year of consideration and 17 are left to be filled up. This on the face of it shows complete non-application of mind by the State authorities, for which learned counsel for the State has also not been able to give satisfactory explanation. 17. This Court, thus, finds that the impugned requisition contained at Annexure- 17 cannot be sustained. In the result, the writ application is allowed and the impugned requisition contained at Annexure- 17 is quashed. The respondents-State authorities are directed to re-calculate the vacancies in light of the above and send fresh requisition to the Commission within six weeks. 18. As prayed, let a copy of this order be supplied to the learned S.C. Ill for its strict compliance.