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2013 DIGILAW 811 (GAU)

Swapan Kumar Brahma v. State of Assam

2013-11-19

HRISHIKESH ROY

body2013
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. P. Bhowmick, learned counsel appearing for the petitioner in the WP(C) No. 698/2007 and 703/2007. The petitioner in WP(C) No. 671/2007 is represented by Advocate Mr. B.K. Sen. The learned standing counsel for the Social Welfare Department Mr. UK Das appears for the State respondents. Advocate Ms. S. Sultana represents Sri Tarun Kumar Goswami (the respondent No. 5), whose appointment is being challenged in the WP(C) No. 703/2007. The petitioners in all the 3 cases are aspirant for appointment to the post of Statistical Assistant who to be engaged for implementation of the ICDS projects in different Districts of Assam, under the Directorate of the Social Welfare Department. The petitioner Swapan Kumar Brahma in WP(C) No. 698/2007 and petitioner Rupam Chakraborty in WP(C) No. 703/2007 applied for appointment in Dhubri District, whereas petitioner Akhil Kalita in WP(C) No. 671/2007 offered his candidature for the vacancies in Kamrup District. 2. While applications from eligible candidates was requisitioned through the letter dated 3rd January, 2005, the Director of Social Welfare indicated that in Dhubri District appointments for 12 posts of Statistical Assistants are available. But information on the number of vacancies available for Kamrup District is not known. District wise selection was carried out in January/February, 2005 and the roll numbers of the short listed candidates in order of merit in different districts, were notified in the Assam Tribune on 11.2.2006. 3. The petitioner Swapan Kumar Brahma was assigned the Roll No. 682 and his roll number was shown in the 15th position in order of merit, in Dhubri District. Although available vacancies were 12 in number, as a ST(P) category candidate, the petitioner expected appointment despite his 15th position, to one of the 12 available posts, by application of the reservation roster under the Assam SC & ST (Reservation of Vacancies in Services & Posts) Act, 1978 (hereinafter referred to as 'the Reservation Act'). Mr. P. Bhowmick, the Advocate for the petitioner submits that his client was the sole candidate in the ST(P) category and if the reservation roster is applied, the candidate Swapan Kumar Brahma will certainly be appointed. 4. In the WP(C) No. 703/2007, the petitioner's roll number was 815 and this was shown in the 13th position amongst the short listed candidates in Dhubri District. 4. In the WP(C) No. 703/2007, the petitioner's roll number was 815 and this was shown in the 13th position amongst the short listed candidates in Dhubri District. As a general category candidate, the petitioner with his 13th position can't expect appointment to the 12 available vacancies. But he contends that the respondent No. 5 Tarun Kumar Goswami, whose Roll No. 975 was shown in the 1st position in order of merit, should not have been appointed as he was over aged. Challenging the appointment of respondent No. 5, Advocate Mr. P. Bhowmick submits that the District wise select list should be corrected to exclude the over aged candidate and in that case, the petitioner with his 13th position expect to be appointed to one of the 12 available vacancies in Dhubri District. 5. The petitioner in the WP(C) No. 671/2007 with his Roll No. 123 was empanelled at the 9th position in Kamrup District as per the notification dated 11.2.2006. But information is unavailable as to the precise number of vacancies in the Kamrup District. 6. Representing the State Authorities, the standing counsel Mr. UK Das submits that in Dhubri District 12 vacancies were available but only the first 6 empanelled candidates could be appointed, since the Model Code of Conduct for the Assembly Election prevented appointment to the other 6 vacancies. 7. Projecting that Swapan Kumar Brahma was empanelled at the 15th position and the respondent No. 5 Rupam Chakraborty was empanelled at 13th position in Dhubri District, the standing counsel submits that since available vacancies were only 12 in number, the petitioners can't reasonably expect to be appointed on the strength of their respective merit position. 8. On the claim of Akhil Kalita, who offered his candidature in Kamrup District, the departmental lawyer submits that the vacancy position in Kamrup District is not available with him but he submits that with his 9th position, this petitioner may not have any right of appointment since the empanelled candidates were 4 times the available vacancies, in each district. 9. The requisition letter of the Director of Social Welfare written to the District Employment Officer shows that reservation is envisaged to the vacancies of Statistical Assistant. Therefore it is obvious that the reservation roster should have been followed while making appointment. 9. The requisition letter of the Director of Social Welfare written to the District Employment Officer shows that reservation is envisaged to the vacancies of Statistical Assistant. Therefore it is obvious that the reservation roster should have been followed while making appointment. But it appears that none from the ST(P) category was appointed in Dhubri District and therefore Swapan Kumar Brahma, despite his 15th position in order of merit in that District, has a legitimate expectation to be appointed, by application of the reservation roster under the Reservation Act. 10. On the challenge to the appointment of Tarun Kumar Goswami on the ground of over age, Ms. S. Sultana, learned counsel submits that her client was already in service in the Department and an age condonation order was passed on 2.1.2001 by the Commissioner & Secretary, Govt. of Assam, Personnel (B) Department. Accordingly it is submitted that since the respondent No. 5 was empanelled in the 1st merit position, he was rightly appointed as a duly selected candidate. 11. In Dhubri District, 12 posts of Statistical Assistants were available and admittedly only 6 of the selected candidates were appointed. According to the departmental lawyer, non-appointment to the remaining vacancies was on account of the Model Code of Conduct at the relevant time and also the subsequent expiry of the select list through afflux of time. But what is noticed herein is that all the 3 writ petitions were filed during the validity of the select list and therefore in my view, expiry of the select list can't be accepted to be a good ground for non-appointment of the selected candidates, provided of-course posts are available. 12. That apart, the State is expected to adhere to the roster point under the Reservation Act, 1978 and the claim of the ST(P) category should have been considered by application of the reservation roster. Therefore for the remaining 6 notified posts of Statistical Assistant in Dhubri District, the State respondents are directed to apply the reservation roster and consider appointment of the ST(P) category candidate to one of the 6 available posts in Dhubri District. The requisite exercise is ordered to be carried out within 10 weeks from today. 13. Therefore for the remaining 6 notified posts of Statistical Assistant in Dhubri District, the State respondents are directed to apply the reservation roster and consider appointment of the ST(P) category candidate to one of the 6 available posts in Dhubri District. The requisite exercise is ordered to be carried out within 10 weeks from today. 13. On the challenge to appointment of respondent No. 5 made in WP(C) No. 703/2007, having noticed that the over age of the respondent No. 5 was condoned by the Government, I see no ground to disturb this appointment of the respondent No. 5, who was empanelled in the 1st merit position in Dhubri District. Accordingly this case is dismissed. 14. On the claim for appointment in Kamrup District made by the petitioner whose merit position was 9th in the select list of 11.2.2006 for Kamrup District, as the precise vacancy position is not known, it is not possible for the Court to issue any positive direction for the appointment of the petitioner. Nevertheless as an empanelled candidate, the petitioner Akhil Kumar has a legitimate expectation of being appointed, subject to availability of vacancies in Kamrup District. Therefore if notified vacancies of Kamrup District warrants appointment of the 9th positioned candidate, the respondents may consider appointment of Akhil Kalita in the Kamrup District. But this Court's order should not be used to appoint anyone, if the notified vacancies at the relevant time in Kamrup District does not permit appointment to a person whose merit position was 9th in the select list dated 11.2.2006. 15. In order to implement the Court's directions, a copy of this order be furnished to Mr. U.K. Das, the standing counsel, Social Welfare Department for appropriate communication. The cases are disposed of accordingly without any order of cost. Disposed off.