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2007 DIGILAW 337 (GAU)

Soleman Ali v. State of Assam

2007-05-10

AMITAVA ROY

body2007
JUDGMENT Amitava Roy, J. 1. The challenge projected is against the notifications dated 26.9.2000 appointing the respondent No. 3 as demonstrator at Swahid Jadav Nath Homeopathic Medical College and Hospital, Guwahati, (hereafter referred to as the College) and terminating the petitioner's appointment thereto under Regulation 3(f) of the Assam Public Service Commission (Limitation of Functions), 1951, (hereafter referred to as the Regulations). The notice of the proceedings though served on the respondent No. 3, he has chosen not to contest the petitioner's assertions. 2. I have heard Mr. B. Chakraborty, learned Counsel for the petitioner and Mr. H. Rahman, learned State Counsel, for the official respondents. 3. The petitioner claims to be a Diploma holder in Homeopathy Medicine and Surgery and thus qualified to be appointed in the post of Demonstrator in the College of Homeopathy. His pleaded case is that in November, 1993, he was appointed as a Demonstrator on honorary basis in the college. Thereafter by notification dated 20.4.1994 issued by the Under Secretary to the Government of Assam, Health and Family Welfare (B) Department, he was appointed as such under regulation 3(f) of the Regulations for a period of four months or till the post was filled up on the recommendations of the Assam Public Service Commission (hereafter referred to as the Commission) whichever was earlier. The initial term of four months was thereafter extended from time to time and the petitioner continued in service without any break. Initially there were 15 regular posts of Demonstrator in the Department. In the year 1994, five new posts were created including the one held by the petitioner. Out of the existing 15 regular posts, one post fell vacant due to the demise of one of the incumbents in 1994. As the deceased belonged to the Other Backward Class (hereafter referred to as the OBC), the Government placed requisition with the Commission for filling up the five new posts and the post that had fallen vacant on the death of the OBC candidate on regular basis. Out of the six posts, four were meant for the Swahid Jadav Nath Homeopathic Medical College and Hospital, Guwahati, and the remaining two for the Assam Homeopathic Medical College, Nagaon. At the relevant time, all these posts were being held under Regulation 3(f) of the Regulations, 4. Out of the six posts, four were meant for the Swahid Jadav Nath Homeopathic Medical College and Hospital, Guwahati, and the remaining two for the Assam Homeopathic Medical College, Nagaon. At the relevant time, all these posts were being held under Regulation 3(f) of the Regulations, 4. Accordingly the Commission issued advertisement on 14.11.1997 which clearly indicated that the four posts in the petitioner's College were meant for all categories of candidates and out of the two posts in the Nagaon College one was reserved for the general category and the other for OBC/MOBC. Responding to the advertisement, the petitioner applied along with others and on completion of the selection process on 18.2.2000, the select list of successful candidates was published by the Commission wherein, he was placed at Sl. No. 6. In terms of the apportionment of the vacancies and the extent of reservation as demonstrated by the advertisement, the petitioner was hopeful to be accommodated keeping in view his position in the select list. According to him, the five new posts were to be filled up by general candidates as per the roster points No. 16-20 identified for the general candidates, the sixth post being reserved for the OBC. However, by the impugned notification dated 26.9.2000, the respondent No. 3 who was at Sl. No. 9 below the petitioner and a ST (P) candidate was appointed and the petitioner's services were terminated. The petitioner has assailed the impugned action as violative of the roster and in super-session of his superior claim over the respondent No. 3 for the post involved. 5. The State respondents in their counter while affirming it to be mandatory to maintain the 20 point roster under the Assam Scheduled Caste and Scheduled Tribes (Reservation of Vacancy in Services and Posts), Act, 1978, and the Rules framed thereunder have pleaded that such roster is applicable for the filling up the post of Demonstrators in the three Homeopathic Medical Colleges of Assam. According to them, the first five selected candidates in order of merit were appointed against the roster point No. 16-20 and slot at Sl. No. 21 therein being meant for ST(P), the respondent No. 3 was adjusted against the same. According to them, the first five selected candidates in order of merit were appointed against the roster point No. 16-20 and slot at Sl. No. 21 therein being meant for ST(P), the respondent No. 3 was adjusted against the same. While categorically denying any infraction of the Act and the Rules, the answering respondents contended that as the validity of the select list expired on 18.2.2001, the petitioner could not be accommodated for want of vacant posts though some vacancies in the post of Demonstrator in Homeopathy occurred later in the year 2002 due to promotion of the existing demonstrators to the next higher rank of Lecturer. Consequent upon the amendment of Homeopathy (Minimum Standards of Education) Amendment Regulation, 1983, in the year 2002, the post of Demonstrator was no longer required at the Degree level of Homeopathic Medical College and the admission in the diploma course had been stopped. In terms of the Homeopathy (Minimum Standard of Education) Amendment Regulation, 2002, diploma in Homeopathy was not construed to be the adequate academic qualification to hold a teaching post in the degree level Homeopathic College. The Government also had taken a decision to upgrade the post of Lecturer to meet the required prescriptions stipulated by the Central Council of Homeopathy. 6. Mr. Chakraborty has argued that in terms of the advertisement, the candidate at Sl. No. 1 in the select list belonging to OBC ought to have been accommodated against the reserved post and the remaining 5 in the same order against roster points No. 16-21 earmarked for the general candidates. The procedure adopted by the State respondents as disclosed by their affidavits being repugnant both to the roster as well as the advertisement is patently illegal and unsustainable in law, he urged. No vacancy having been reserved for a ST(P) candidate, the respondent No. 3 could not have been accommodated against the advertised vacancy. Mr. Chakraborty contended that the roster had been wrongly operated deliberately to induct the said respondent on extraneous considerations. The petitioner being above the said respondent on merit, he (petitioner) has suffered arbitrary super-session in the matter of appointment in public service in violation of Article 14 and 16 of the Constitution of India. Mr. Chakraborty contended that the roster had been wrongly operated deliberately to induct the said respondent on extraneous considerations. The petitioner being above the said respondent on merit, he (petitioner) has suffered arbitrary super-session in the matter of appointment in public service in violation of Article 14 and 16 of the Constitution of India. Without prejudice to the above, the learned Counsel insisted that as one post of Demonstrator is still lying vacant, a writ of mandamus ought to issue to adjust the petitioner against the same. 7. Mr. Rahman per contra has maintained that the roster for the instant recruitment having been worked from point 16 thereof, candidates at Sl. No. 1-5 were accommodated till point No. 20 and as the slot No. 21 was earmarked for ST(P), the respondent No. 3 was inducted therein. As in the process two OBC candidates had been appointed, the covenants of the advertisement also stood complied. As the petitioner in view of his merit position could not get appointed, there was no legally acceptable cause for questioning the impugned decision. 8. The rival submissions have received the due consideration of this Court. To start with, the advertisement that had set the process in motion offered six posts of Demonstrator, four at Swahid Jadav Nath Homeopathic Medical College and Hospital, Guwahati, for all categories and two at Assam Homeopathic Medical College, Nagaon, out of which one was reserved for the general category and the other for OBC/MOBC candidates. It is thus obvious that out of the six posts one each was reserved for general and OBC/MOBC and the remaining four were open for all categories. Noticeably no reservation was indicated for any ST(P) candidate thus suggesting that no preferential treatment for any candidate belonging to that category was contemplated. Admittedly, the petitioner and the respondent No. 3 were placed at Sl. No. 6 and 9 respectively in the select list in terms of merit. Whereas the petitioner is a general candidate, the respondent No. 3 belongs to ST(P). Indubitably, the five newly created posts corresponded to the roster points 16-20 identified for general category candidates. There is also no wrangle at the bar that one of the vacancies advertised had occurred due to the demise of an OBC incumbent. The reservation of one vacancy for OBC understandably is therefor. 9. Indubitably, the five newly created posts corresponded to the roster points 16-20 identified for general category candidates. There is also no wrangle at the bar that one of the vacancies advertised had occurred due to the demise of an OBC incumbent. The reservation of one vacancy for OBC understandably is therefor. 9. It is thus axiomatic that in essence out of the six posts advertised, five were to be filled up on merit and the vacancy identified for the OBC candidate by applying the norm of reservation. Considering the inter se positions of the petitioner and the respondent No. 3 in the select list, the latter could not have been preferred over the former in terms of merit. One vacancy for the OBC candidate having been proclaimed to be reserved, the same having occurred on the demise of the erstwhile incumbent of the same category, it was essentially to be filled up by a selected OBC candidate. The said vacancy in any case could not have been offered to any other reserved category candidate. In that view of the matter, having regard to the respondent No. 3's position in the select list, he could not have been favoured with the appointment over any OBC candidate. If the vacancies at the roster points 16-20 are awarded to the selectees at Sl. No. 1-5 on merit, it is Dr. Anupam Talukdar (Sl. No. 8 and OBC) who should have been appointed against the vacancy reserved for the said category. This candidate being above the respondent No.3 also on merit could not have been disregarded to accommodate him (respondent No. 3). The selectee No. 8 is, however, not before this Court questioning the appointment of the said respondent. The challenge is laid by the petitioner who is superior to him in merit at Sl. No. 6. 10. The Apex Court in R.K. Sabharwal and other vs. State of Punjab and other, (1995) 2 SCR 35, had propounded that when a percentage of reservation is fixed in respect of a particular category and the roster indicates the reserve points, those are to be filled from amongst the members of the reserve categories and the candidates belonging to the general category are not entitled thereto. However, the reserved category candidates can compete for the non-reserved posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. It ruled that despite such appointments, the given percentage has to be provided in addition. It held the view that when the total number of posts in a cadre are filled up by the operation of the roster, the percentage of reservation provided for the reserved category is achieved and the vacancies arising thereafter have to be filled up from amongst the category to which the corresponding post belong in the roster. 11. There was thus no option for the respondents to overlook the deserving OBC candidate for the vacancy declared to be reserved for the said category in the advertisement. The appointment of the respondent No. 3 by depriving the OBC candidate at Sl. No. 8, therefore, cannot be sustained having regard to the apportionment of the vacancies professed in the advertisement, the appointment of the respondent No. 3 against roster point No. 21 cannot be upheld. Applying the ratio in R.K. Sabharwal (supra), selectees 1, 2 and 5 though OBC candidates cannot be construed to be against the vacancy reserved for that category. Their induction has been on merit simpliciter against roster points 16-20 earmarked for general candidates. However, in absence of an assailment by any of the other selected OBC candidates, the choice for the 6th post in the instant proceeding has to be confined between the petitioner and the respondent No. 3. On the touchstone of merit, the petitioner being evidently superior, in the interest of public service, he ought to be preferred. 12. Noticeably, the respondent No. 3, as alluded hereinabove, has abstained from contesting the proceedings. His appointment in view of the above determination being patently illegal is, therefore, quashed. The vacancy for the OBC candidate proposed to be filled up would be carried over. The respondents would appoint the petitioner against the post held by the respondent No. 3 or any other available vacant post of Demonstrator, if so advised. 13. The petition stands allowed. No costs. Petition allowed.