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2012 DIGILAW 942 (GAU)

Sourav Kanti Sarkar v. State of Assam

2012-08-07

BIPLAB KUMAR SHARMA

body2012
JUDGMENT B.K. Sharma, J. 1. All the writ petitions pertaining to more or less the same set of facts and raising the same issue have been heard together and are being disposed of by this common judgment and order. WP (C) No. 5753/2010 In this writ petition, the 7 petitioners were earlier engaged as Grade-IV employees in the establishment of the District Deputy Registrar of Coop Societies, Dhubri. Admittedly their such appointments were on adhoc basis and dehorse the recruitment rules. The 7 petitioners earlier had filed a writ petition being WP(C) No. 7217/2002 claiming regularization of their services. The writ petition was disposed of by order dated 15.11.2002 directing the respondents to consider their cases by placing the matter before the State Level Empowered Committee. 2. After the aforesaid exercise that was carried out by the departmental authority the petitioners were appointed by orders dated 24.4.2007. Being aggrieved by such appointments, one Sri Tainur Rahman Khan had filed a writ petition being WP(C) No. 4339/2007, which was disposed of by order dated 8.2.2010 setting aside the said appointments of the 7 petitioners. It was found that the petitioners were appointed dehorse the recruitment rules. Being aggrieved by the said judgment and order, the petitioners filed a writ appeal being W.A. No. 89/2010, which was disposed of by order dated 26.8.2010 upholding the order passed by the learned Single Judge. In the order of the Division Bench it was noticed that pursuant to cancellation of the appointments of the petitioners, a selection was conducted for filling up 7 back-log vacancies. 3. The petitioners have now challenged the advertisement dated 1.4.2010, by which altogether seven vacancies, two in the cadre of PSP and 5 in the cadre of Peon/Nigh Chowkidar have been advertised. It is on record that pursuant to the said advertisement, a selection had been conducted and 7 selected candidates have already been appointed. The said selected candidates are the private respondents in the writ petition. According to the petitioners, the respondents could not have reserved all the 7 vacancies for reserved category candidates describing them to be back-log vacancies. It is the case of the petitioners that since they had been serving against the 7 posts, they should have given opportunity to offer their candidatures and then to consider their cases by giving some weightage for the earlier services rendered by them. WP(C) No. 6247/2010 4. It is the case of the petitioners that since they had been serving against the 7 posts, they should have given opportunity to offer their candidatures and then to consider their cases by giving some weightage for the earlier services rendered by them. WP(C) No. 6247/2010 4. As in the first writ petition, in this writ petition also challenge is to the advertisement dated 2.11.2010 (Annexure-G), by which, the District Deputy Registrar of Co-operative Societies, Dhubri has advertised two posts of PSP. One for ST(H) and the other for OBC category candidates. Out of the said two posts, ST(H) post is shown to be a back-log. As in the first writ petition, in this writ petition also the grievance of the petitioners is that all the vacancies ought not to have been kept reserved for reserved category candidates and that general category candidates like that of the petitioners should have been given opportunity to offer candidatures. WP(C) No. 103/2012 5. In this writ petition filed by the sole petitioner, the prayer made is to declare the results of the selection that was conducted on 26.11.2010 pursuant to the advertisement impugned in the second writ petition. Be it stated here that in the second writ petition, there is an interim order restraining the respondents from declaring the results of the selection that has already been conducted. 6. I have heard Mr. D. Das, learned Sr. Counsel assisted by Mr. R. Singha, learned counsel for the petitioners in the first and second writ petitions as well as Mr. K. Nayak, learned counsel for the sole petitioner in the third writ petition. Dr. B. Ahmed, learned Standing Counsel, Co-operation Department has argued on behalf of the official respondents. He has also produced the relevant records. 7. Earlier, the first writ petition being WP(C) No. 5753/2010 was dismissed by judgment and order dated 16.5.2012 taking note of the particular findings recorded in the judgment and order dated 26.8.2010, by which, the earlier writ appeal being W.A. No. 89/2010 filed by the 7 petitioners had been dismissed. 8. As noted above, the appointments of the petitioners were held to be illegal in view of the fact that they were appointed dehorse the recruitment rules and the procedure thereof. While dismissing the writ petition, the stand of the respondents that 7 back-log vacancies were to be filled up had also been noticed. 9. 8. As noted above, the appointments of the petitioners were held to be illegal in view of the fact that they were appointed dehorse the recruitment rules and the procedure thereof. While dismissing the writ petition, the stand of the respondents that 7 back-log vacancies were to be filled up had also been noticed. 9. After the writ petition was dismissed in the above manner by the aforesaid order dated 16.5.2012, the 7 petitioners involved in the writ petition, filed a writ appeal being W.A. No. 149/2012, which has been disposed of by order dated 11.6.2012 and the same is quoted below: Learned counsel for the parties agree that in the earlier round of litigation, the issue whether all the seven available posts are to go to reserved category has not been decided and the same will call for a decision in these proceedings. Accordingly, we set aside the impugned order and remand the matter to the learned Single Judge for a fresh decision in accordance with law. The parties may appear before the learned Single Judge for further proceedings on 26th June, 2012. The appeal stands allowed accordingly. 10. It is submitted that the appeal was disposed of at the motion stage itself without any notice to the private respondents. It has been held by the Division Bench that the issue whether all the 7 available vacancies are to be filled up by reserved category candidates has not been decided in the earlier order dated 16.5.2012, by which the writ petition was dismissed. 11. As noted above, the Division Bench of this Court while dismissing the earlier writ appeal being W.A. No. 89/2010 had taken note of the particular stand of the official respondents that all the 7 vacancies were required to be filled up through reserved category candidates to clear the back-log. Accordingly, the first writ petition was dismissed taking note of the findings recorded in the order passed in the said writ appeal. Be that as it may, since the said judgment and order has been set aside by the aforementioned order dated 11.6.2012 in W.A. No. 149/2012, I am now required to re-consider the matter to answer the issue as to whether all the 7 available vacancies with which this proceeding is concerned are meant for reserved category candidates and for that matter ere required to be filled up as back-log. 12. 12. In the second writ petition also, the same issue is involved. According to the petitioners two posts of PSP, which have been advertised could not have been reserved for reserved category candidates, one as ST(H) and the other as OBC, as the same would lead to excessive reservation. Further stand of the petitioners is that the respondents were required to ascertain year wise vacancies to determine the reservation and back-log vacancies. So far as the third writ petition is concerned, the prayer made is dependent on the outcome of the first two writ petitions. 13. I have very carefully considered the submissions made by the learned counsel for the parties. I have also perused the entire materials on record including the records produced by Dr. B. Ahmed, learned Standing Counsel, Co-operation Department. 14. Mr. D. Das, learned Sr. Counsel appearing for the petitioner in the first and second writ petition has placed reliance on the decision of the Apex Court reported in (2011) 2 SCC 105 (State of U.P. & Ors. Vs. Sangam Nath Pandey & Ors.) to buttress his argument that there being failure on the part of the official respondents to work out year wise vacancies they could not have earmarked all the 9 vacancies (7+2) for reserved category candidates as back-logs. 15. As noted above, in the Division Bench judgment passed on 26.8.2010 in the earlier writ appeal being W.A. No. 89/2010, the Division Bench duly took note of the definite pleas of the official respondents that all the 7 vacancies were to be filled up as back-log vacancies. In this connection, the Division Bench made the following observation: If the seven consequential vacancies created by the termination of appellants fall to the share of reserved category candidates as per the roster points the said posts have to be filled up by such candidates. For this purpose a select consisting of reserved category candidates in order of merit have been drawn up. The appellants, therefore, could not have been considered against the posts which have fallen vacant on account of their termination. 16. Independent of the above, I have verified the records produced by Dr. B. Ahmed, learned Standing Counsel, Co-operation Department. For this purpose a select consisting of reserved category candidates in order of merit have been drawn up. The appellants, therefore, could not have been considered against the posts which have fallen vacant on account of their termination. 16. Independent of the above, I have verified the records produced by Dr. B. Ahmed, learned Standing Counsel, Co-operation Department. On perusal of the said records, it is found that the particular committee constituted to process the selection in its meeting held on 29.3.2010 identified the back-log and reserved vacancies to be filled up by reserved category candidates. Records have further revealed that the total cadre strength of PSP is 14 and that of Peon/Night Chowkidar is 15. As per the provisions of Assam SC and ST (Reservation of Vacancies in Service and Posts) Act, 1978 and the Rules framed there under in 1983, there is provision for reservation of vacancies as follows: SC-7% ST(P) 10% and ST(H) 5% 17. As submitted, there is also reservation provision for OBC category candidates. On perusal of the records, it appears that out of the 2 posts, which have been filled up as back-log in the cadre of PSP, one post has been filled up by ST(P) category candidate and the remaining by SC category candidates. It appears that roster point pertaining to ST(P) and ST (H) (roster point 1 and 3 respectively) had been carried forward inasmuch as the vacancy against the said roster points had been filled up by 2 un-reserved category candidates. 18. Similarly, in the cadre of Grade-IV (Peon/Night Chowkidar) as against total cadre strength of 15, reserved vacancies against roster points No. 3, 7 and 11 had been filled up by OBC, Un-reserved and OBC category candidates respectively, although the said roster points were meant for SC, ST(H) and ST(P). To meet the back-log, the respondents pursuant to the impugned selection have filled up the vacancies by carrying forward the back-logs and appointing SC, ST(H) and ST(P) category candidates. Remaining two posts have been filled up by OBC category candidates as per the roster points. 19. I see no reason to interfere with such a procedure adopted by the official respondents. Remaining two posts have been filled up by OBC category candidates as per the roster points. 19. I see no reason to interfere with such a procedure adopted by the official respondents. As regards the subsequent selection questioned in the second writ petition, the respondents have filled up the vacancies against the roster point i.e. roster points No. 1 and 3 meant for ST(P) and SC, which were earlier filled up by un-reserved category candidates. As per the records, the reserved category candidates, who have been appointed pursuant to the first and second advertisement are all against clear the back-log vacancies, I see no infirmity in the procedure adopted by the respondents towards clearing the back-logs. 20. In view of the above, no relief can be granted to the petitioners. However, in the counter affidavit filed by the respondents, it has been stated that since the petitioners have gained experience by working under the department, in case of future advertisement, the respondents will consider their cases by giving due weightage to their past experience. It is expected that the respondents while making appointment in future will bear in mind the long experience of the petitioners and the fact that in search of appointment and regularization they have lost prime of their youths. 21. In view of the above, the third writ petition being WP(C) No. 103/2012 is allowed with the direction to the respondents to declare the results of the selection that has been conducted pursuant to the second advertisement in the second writ petition. Let the results be declared as expeditiously as possible. Further, the appointees (private respondents) involved in the first writ petition who have already been appointed shall be paid their salaries, both arrear and current immediately. With the above observations and directions, the third writ petition is allowed, while the first and the second writ petitions are dismissed. However, there shall be no order as to costs. Interim order passed earlier stands vacated. Petition dismissed.