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2006 DIGILAW 459 (GAU)

Rajen Lagshu v. State of Assam

2006-05-17

B.S.REDDY, RANJAN GOGOI

body2006
JUDGMENT Ranjan Gogoi, J. 1. This writ appeal, at the instance of the writ Petitioner, seeks to challenge the order-dated 29.8.1998 passed in CR No. 576/95 by which the learned Single Judge has refused the prayers made in the writ petition. 2. The facts which will be necessary to be recited for an effective determination of the questions arising in the writ appeal may be briefly noticed at this stage. An advertisement dated 4.12.1991 was published in the leading Newspapers of the State inviting applications, inter alia, for filling up 11 vacant posts of Project Manager in the District Industries Centres of Assam. The advertisement in question also sought applications for filling up 22 posts of Functional Manager/Deputy Director in the Industries Department of the State. The Petitioner had submitted his applications for both the Posts. At the conclusion of the selection process, which was conducted by the Assam Public Service Commission, a Select List dated 11.10.1993 was forwarded to the appointing authority. Insofar as the post of Project Manager is concerned, 10 candidates were included in the main Select List which also consisted of another 10 names of wait listed candidates. The name of the Petitioner appeared at SI. No. 19 i.e. in the list of wait-listed candidates. In-so-far as the post of Functional Manager is concerned the name of the Petitioner appeared as a selected candidate: The appointing authority appointed the first 10 candidates in the Merit/Select list in the post of Project Manager. Subsequently, appointment was offered to 11th candidate in order of merit i.e. first person in the Waiting list. Aggrieved, the writ petition was filed seeking interference of this Court with the appointment of the aforesaid candidate who was arrayed as Respondent No. 4 in the writ petition. A further direction for the appointment of the Petitioner against the said 11th vacancy on the ground that as per 20 point Roster, the said vacancy has to be filled up by a ST(Plains) candidate, to which category the Petitioner belongs, was also sought for. The learned Single Judge hearing the writ petition took the view that as the Petitioner was placed below the Respondent No. 4 in the Merit/Select list he cannot be understood to have a legitimate grievance with regard to the appointment of the said Respondent No. 4. The learned Single Judge hearing the writ petition took the view that as the Petitioner was placed below the Respondent No. 4 in the Merit/Select list he cannot be understood to have a legitimate grievance with regard to the appointment of the said Respondent No. 4. The learned Single Judge also took note of the fact that, in the meantime, the Petitioner had been appointed in the post of Functional Manager. In view of the above the learned Single Judge thought it proper to hold that the directions prayed for in the writ petition ought not be allowed. Aggrieved, this writ appeal has been filed. 3. We have heard Mr. A.K. Goswami, learned Sr. Counsel for the Appellant, Mrs. B. Goyal, learned Counsel appearing for the official Respondents and Mr. K.H. Choudhury, learned Sr. Counsel appearing for the Respondent No. 4. We have also heard Mr. S.N. Sarma, learned Sr. Counsel appearing for the newly impleaded Respondent No. 5 in the appeal. 4. The argument advanced by Mr. Goswami, learned Sr. Counsel for the writ Petitioner/Appellant is short and precise. Shri Goswami has submitted that 11 vacancies having been advertised, the Assam Public Service Commission ought to have recommended 22 candidates i.e. double the number of vacancies advertised. Instead 20 candidates were recommended and that too by means of a main Select List and a Waiting List Shri Goswami has further submitted that under the provisions of Assam Scheduled Caste and Scheduled Tribes (Reservation of vacancies in Services and Posts) Act 1978 (hereinafter referred to as the Act. 1978), a 20 point Roster has been prescribed and as per the said Roster the first and the 11th vacancies are earmarked for ST (Plain) candidates. Shri Goswami has pointed out that as per the merit list prepared there was one candidate at SI. No. 8 i.e. Shri Umakanta Basing who belongs to ST (Plains) candidate and he was duly appointed. Thereafter, the Petitioner at SI. No. 19 of the Merit List, being the only other ST (Plains) candidate, it is the Petitioner who ought to have been appointed against the 11th vacancy advertised. Instead, the Respondent No. 4, a General Category candidate has been appointed. The aforesaid action, Shri Goswami contends, is plainly contrary to the provisions of the Reservation Act, 1978 and the 20-point Roster prescribed. Accordingly, interference of the Court has been prayed for. 5. Instead, the Respondent No. 4, a General Category candidate has been appointed. The aforesaid action, Shri Goswami contends, is plainly contrary to the provisions of the Reservation Act, 1978 and the 20-point Roster prescribed. Accordingly, interference of the Court has been prayed for. 5. The submission advanced by the learned Counsels appearing for the State as well as private Respondent Nos. 4 and 5 is a common one and basically center around the case projected by the official Respondents in the affidavit filed before us. However, Shri K.H. Choudhury, learned Counsel appearing for the Respondent No. 4 has additionally pointed out that the posts of Project Manager and Functional Manager including the post of Deputy Director are in a common cadre in Grade-I of the Service and all the three posts carry identical scale of pay. Shri Choudhury has submitted that in the said facts, as the Appellant has already been appointed in the post of Functional Manager, he cannot have any legitimate grievance to espouse in the present appeal. 6. As the arguments advanced by the learned Counsel for the Respondents center around the stand taken by the State in the affidavits filed, it will be necessary for us to briefly notice the said stand. The State did not file any affidavit in the proceeding before the learned Single Judge; yet surprisingly before the Division bench not one but as many as 4 affidavits have been filed in quick succession. The four affidavits have been necessitated as the Departmental Secretary had felt the necessity of correcting certain "errors" in each of the earlier affidavits filed. However, a conjoint reading of the affidavits filed by the State, the stand taken appears to be as follows: According to the State, the posts of Project Manager, Functional Manager and Deputy Director constitute one common cadre, appointment to which is governed by the 20 point Roster prescribed by the Act, 1978. In the advertisement published, the percentage of reservation for each of the reserved category candidates had been indicated. Such percentage, in-so-far as ST (Plains) candidates is concerned, being 10% and the number of posts advertised being 11, only one post was available for the ST (Plains) candidates. According to the State, the vacancies in question were required to be filled up from the Roster point 17 onwards. Such percentage, in-so-far as ST (Plains) candidates is concerned, being 10% and the number of posts advertised being 11, only one post was available for the ST (Plains) candidates. According to the State, the vacancies in question were required to be filled up from the Roster point 17 onwards. Roster point 1, which is earmarked for ST (Plains) candidates, according to the State, has already been filled up by a Deputy Director belonging to the ST (Plains). The Roster point 11 was de-reserved as no ST (Plains) candidate was available at the relevant point of time and this slot was filled up by SI. No. 8 of the Merit/Select List against the Roster point 24 which is earmarked for General category candidates. In such a manner, the backlog vacancy was filled up. Roster Point 21 which is earmarked for ST (Plain) candidate was de-reserved and carried forward and the said Roster point 21 was filled by Respondent No. 5 who is a General category candidate. This, the State possibly did as it wanted to maintain the order of merit while making the appointments. As the number of vacancies that could be filled up from ST (Plains) candidates by means of the recruitment process in question was only one, according to the State, no further ST (Plains) candidates including the Petitioner could be appointed. 7. That the posts of Project Manager Functional Manager and Deputy Director consist of one single cadre is not is dispute. If that be so, the comprehension of the Petitioner that out of 11 vacancies advertised, the first and 11th vacancies had to fall to the share of the ST (Plain) candidates will not be correct. The Roster was already operated upto point No. 16 and, therefore, we find no infirmity in the action of the State in filling up the posts advertised from Roster point No. 17. The advertisement having prescribed 10% of the posts advertised to be reserved for ST (Plains) candidates, only one post was available for ST (Plains) candidate. However, Roster Point No. 11, earmarked for ST (Plains) candidates, having been carried forward, there was a backlog vacancy available for ST (Plains) candidates. The affidavit of the State disclosed that SI. No. 8 of the merit list, Shri Umakanta Basing, had filled up the said backlog vacancy. However, Roster Point No. 11, earmarked for ST (Plains) candidates, having been carried forward, there was a backlog vacancy available for ST (Plains) candidates. The affidavit of the State disclosed that SI. No. 8 of the merit list, Shri Umakanta Basing, had filled up the said backlog vacancy. Though the affidavit of the State shows that the aforesaid person, Shri Umakanta Basing had filled up Roster Point 24, he had really filled up Roster Point No. 11, which was earlier carried forward. In such circumstances, another post i.e. Roster Point No. 21 was available for a ST (Plains) candidate and the Petitioner is the only other ST (Plains) candidate in the Merit list. But Roster point 21 was de-reserved and carried forward and a General Category Candidate i.e. Respondent No. 5 was appointed against the said Roster Point. The aforesaid action of the state was guided by its understanding that as only one post was available for ST (Plains) candidates, with appointment being given to SI. No. 8 of the Merit List, Shri Umakanta Basing, no further posts were available for ST (Plains) candidate. 8. The above understanding of the State cannot be said to be correct inasmuch as the percentage of posts reserved will not affect but will be in addition to the backlog vacancies, if any, that may be available. The next question that we therefore, will have to look into is the relief that should be afforded to the writ Petitioner/Appellant, at this stage. It is noticed from the affidavit filed by the State that against the Roster point 43 the Petitioner had been appointed in the post of Functional Manager. As already noticed by us the posts of Project Manager, Functional Manager and Deputy Director carry an identical scale of pay and the said posts constitute one common cadre. In such circumstances, we fail to see how any prejudice will be caused to the Petitioner if we refrain from passing any direction for the appointment of the Petitioner in the post of Project Manager. That apart, the case as understood and noticed by us is not the pleaded case of the Petitioner who has confined his claims to the 11th vacancy advertised as being earmarked for ST (Plains) candidate, a claim that has been found to be untenable. That apart, the case as understood and noticed by us is not the pleaded case of the Petitioner who has confined his claims to the 11th vacancy advertised as being earmarked for ST (Plains) candidate, a claim that has been found to be untenable. Moreover, the selections in question had been taken placed in the year 1991 and the appointments on basis thereof were made in the year 1993. Nearly a decade and a half has elapsed in the meantime. On a consideration of the totality of the facts of the case, as noticed, above, we are of the opinion that the matter should be allowed to rest and ought not be carried any further. We, therefore, dismiss the appeal and affirm the order 29.8.1998 of the learned Single Judge. However, in the facts and circumstances of the case we leave the parties to bear their own costs. Appeal dismissed