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Jharkhand High Court · body

2012 DIGILAW 1180 (JHR)

Parina Thapa v. State of Jharkhand

2012-08-07

D.N.PATEL

body2012
ORDER 1. Counsel for the petitioner submitted that the petitioner applied for the post of Trainer Drummer in pursuance of a public advertisement No.2/08, which is annexed as Annexure1 to the memo of petition. Thereafter the petitioner cleared all the tests taken by the respondents and she secured higher marks than the other candidates and even thereafter the petitioner has not been appointed and, therefore, the petitioner has preferred the present writ petition. 2. Counsel for the petitioner submitted that as per the supplementary counter affidavit filed by the respondents, petitioner has secured 50 marks, whereas one more candidate, namely Raj Kumari, who has secured 46 marks, she has been appointed leaving aside the present petitioner. This aspect of the matter has not been properly appreciated by the respondents and, therefore, petitioner is seeking writ of mandamus upon the respondents for grant of appointment of the petitioner as a Trainer Drummer. 3. Counsel for the respondents has submitted that they have filed detailed counter affidavit as well as supplementary counter affidavit. It is submitted by the counsel for the respondents that pursuant to a public advertisement, which is annexed as Annexure – 1 to the memo of petition, there were four vacancy for the post of Trainer Drummer. Two posts are kept for general category candidates, one is reserved for Scheduled Tribes candidate and last post is reserved for Other Backward Classes candidate. As per AnnexureB to the supplementary counter affidavit, two Scheduled Tribes candidates have secured 61 and 51 marks respectively and, therefore, instead of putting them in reserved category candidates, they are entitled to be appointed under General Category Candidates and there is no illegality committed by the respondents. So far another candidate, namely Raj Kumari, is concerned, she belongs to Other Backward Classes candidate for which there is one seat reserved and she is the only candidate in the category of Other Backward Classes candidates who has secure 46 marks and she is the 3rd candidate selected for the posts. One Sushila Toppo who has secured 51 marks, for that candidate there is only one seat reserved and in her reserved category seat she has secured highest marks and, therefore, Sushila Toppo is selected for reserved category candidate i.e. Scheduled Tribes candidate. One Sushila Toppo who has secured 51 marks, for that candidate there is only one seat reserved and in her reserved category seat she has secured highest marks and, therefore, Sushila Toppo is selected for reserved category candidate i.e. Scheduled Tribes candidate. Petitioner being a General Category Candidate, has secured lesser marks than one Sangita Purty and Sunita Kachchap and, therefore, she has not been selected at all in the general category candidates. Counsel for the respondents stated that if the reserved category candidates, may be Scheduled Caste candidate, may be Scheduled Tribe candidate, may be Other Backward Classes candidate, if these candidates are securing higher marks and capable of being appointed in General Category candidates, than they shall be appointed towards the vacancy for the General Category Candidates, so that other reserved category candidates may be appointed for their respective reserved quotas. Hence the claim made by the petitioner is not tenable in the eyes of law and petition deserves to be dismissed. 4) Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, I see no reason to entertain this writ petition mainly for the following facts: (i) In view of the public advertisement, petitioner applied for the post of Trainer Drummer. Petitioner belongs to General Category Candidates. Petitioner has secured 50 marks. (ii) Counsel for the respondents has filed detailed supplementary counter affidavit and the marks given to the first ten candidates are as under: Sl. No. Name of the Candidates Category Marks Obtained 1. Sangeet Purty ST 61 2. Suntia Kachchap ST 59 3. Sushila Topp ST 51 4. Parina Thapa 50 5. Monika Bhukumar ST 49 6. Renu Kachchap ST 48 7. Kiran Devi ST 46 8. Raj Kumari BC 46 9. Pinki Gupta 39 10. Sulakha Kumari 34 (iii) Thus, in view of the aforesaid Table, the marks obtained by candidate Nos.1 and 2, are 61 and 59 respectively. Though, they are basically belonging to Scheduled Tribes candidates, but as they have secured highest marks, rightly the respondents have put them in General Category candidates. No illegality has been committed by the respondents in allotting the two seats for these two candidates in the General Category candidates quota, because they have secured highest marks. Though, they are basically belonging to Scheduled Tribes candidates, but as they have secured highest marks, rightly the respondents have put them in General Category candidates. No illegality has been committed by the respondents in allotting the two seats for these two candidates in the General Category candidates quota, because they have secured highest marks. Whenever any reserved category candidate, namely Scheduled Castes, Scheduled Tribes or Other Backward Classes, is securing higher marks than the general category candidates, then he/she will be selected under the General Category candidates quota. This view is also supported from the judgment rendered by Hon'ble Supreme Court in the case of Indra Sawhney and others Versus Union of India reported in 1992 Supp (3) S.C.C.210. Paragraph 811 of the said judgment reads as under: “811. In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.” (iv) Similar view has been taken by the Hon'ble Apex Court in the case of R.K. Sabharwal and others Versus State of Punjab and others reported in (1995) 2 SCC 745 . Paragraph 4 of the said judgment reads as under: “4. When a percentage of reservation is fixed in respect of a particular cadre and the roaster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the nonreserve 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. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the Services under the State. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the backward Class. The fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the State Services may be relevant factor for the State Government to review the question of continuing reservation of the said class but so long as the instruction/rules providing certain percentage of reservations for the Backward Classes are operative the same have to be followed. Despite any number of appointees/promotees belonging to the Backward Classes against the general category posts the given percentage has to be provided in addition. We, therefore, see no force in the first contention raised by the learned counsel and reject the same. (v) So far candidate at Serial No.3, Sushila Toppo, is concerned, the said candidate is belonging to Scheduled Tribes candidate. She has secured 51 marks and, therefore, she has been selected for a reserved category candidate under the Scheduled Tribes quota as there is one post reserved for Scheduled Caste candidate. (v) So far candidate at Serial No.3, Sushila Toppo, is concerned, the said candidate is belonging to Scheduled Tribes candidate. She has secured 51 marks and, therefore, she has been selected for a reserved category candidate under the Scheduled Tribes quota as there is one post reserved for Scheduled Caste candidate. So far the candidate at Serial No.8 Raj Kumari is concerned, though she has secured only 46 marks, but she has been appointed under Other Backward Classes quota, as one post is reserved for the candidate belonging to Other Backward Classes. So far the petitioner is concerned, she has secured 50 marks and she is the third candidates in General Category candidates who has secured 50 marks, but her marks are lesser than the candidates at Serial Nos.1 and 2, and hence, she has rightly not been given appointment by the respondents, as because there are only two posts for the General Category candidates. It ought to have been kept in mind that general category quota is not reserved only for general category candidates at all and if the reserved category candidates are getting higher marks than that of General Category candidates, they, even being a reserved category candidate, will be treated as General Category candidate. 5. As a cumulative effect of the aforesaid facts and reasons and judicial pronouncements, this writ petition is hereby dismissed and no illegality has been committed in not giving appointment to the petitioner. 6. This writ petition is, thus, dismissed. Petition dismissed.