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2014 DIGILAW 929 (PAT)

Anamika Kumari v. State of Bihar

2014-08-29

ANJANA MISHRA, I.A.ANSARI

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JUDGMENT : Anjana Mishra, J. By a writ petition, made under Article 226 of the Constitution of India, the present appellant, as writ petitioner, sought for setting aside and quashing the select list, dated 20.12.2012, published by respondent No. 5, namely, District Programme Officer, Sitamarhi, for appointment to the posts of Mahila Paryavekshikha. The writ petition, so made, gave rise to CWJC No. 22244 of 2012, the challenge to the legality and validity of the said select list being on the ground that the select list had been prepared in contravention of law, more particularly, contrary to the law laid down in the order, dated 27.09.2011, passed in CWJC No. 10329 of 2008. 2. The background facts, giving rise to the writ petition, may, in brief, be set out as under:- (i) By a resolution, Social Welfare Department, Government of Bihar, Patna, called for applications to make appointment, on contractual basis, of Mahila Paryavekshikha against existing posts. The guidelines for making appointments were also clearly mentioned in the said resolution, which stands annexed, as Annexure-2, to the writ petition. (ii) Pursuant to the said resolution, the writ petitioner, too, applied for selection, she having requisite qualification inasmuch as she had passed matriculation examination, in the year 1989, from Bihar School Examination Board, Patna, Intermediate in Arts, in the year 1991, from Bihar Intermediate Educational Council, Patna, and Bachelor of Arts, in the year 1995, from Babasaheb Bhim Rao Ambedkar Bihar University, Muzaffarpur, and had secured 66 per cent marks in the 3-year degree course of Arts. (iii) The application, seeking appointment, was made online by the writ petitioner, as a general category candidate. On perusal of the select list, which came to be published on 20.12.2012, the writ petitioner discovered that out of the total number of 32 seats, which were meant for the candidates of general category, as many as 13 candidates, belonging to reserved category, had been included in the general category and had been placed at serial nos. 4, 6, 11, 12, 14, 15, 16, 18, 19, 22, 24, 27 and 30. This was, according to the writ petitioner, contrary to the law as reservation policy transferring candidates from reserved category to general category on the basis of merit and/or marks could not have been resorted to. 4, 6, 11, 12, 14, 15, 16, 18, 19, 22, 24, 27 and 30. This was, according to the writ petitioner, contrary to the law as reservation policy transferring candidates from reserved category to general category on the basis of merit and/or marks could not have been resorted to. (iv) The further case of the writ petitioner was that in a similar case, relating to appointment of Panchayat Shiksha Mitra, a learned single Judge of this Court had the occasion to determine the question as to whether it was legal and valid to transfer candidates of reserved category into the pool of general category and, having duly considered the resolution Nos. 133 and 23, dated 31.10.1990 and 16.02.1991, respectively, issued by the Department of Personal Administration, Government of Bihar, and also Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Ordinance, 1991 (hereinafter referred to as “1991 Ordinance”), had held that transferring candidates of reserved category into general category could apply only if the selection process were made on the basis of competitive examination and not to a case, wherein selection is made on the basis of marks alone. 3. By order, dated 25.02.2014, passed in CWJC No. 22244 of 2012, a learned single Judge of this Court took the view that this Court’s decision, relating to appointment of Panchayat Shiksha Mitra, was not applicable to the present case and, relying upon the principles laid down in Indra Sawhney v. Union of India ( AIR 1993 SC 477 ), held that a candidate of reserved category, whether demands or not, would be placed in the pool of the candidates of general category on the basis of his/her own merit. Based on the conclusion so reached, the writ petition was dismissed. 4. The issue at hand, which is urged to be decided in the present appeal, is: whether the select list, published by respondent No. 5, namely, District Programme Officer, Sitamarhi, for the posts of Mahila Paryavekshikha, be declared to be arbitrary, illegal and/or against settled principles of law relating to reservation or not? 5. 4. The issue at hand, which is urged to be decided in the present appeal, is: whether the select list, published by respondent No. 5, namely, District Programme Officer, Sitamarhi, for the posts of Mahila Paryavekshikha, be declared to be arbitrary, illegal and/or against settled principles of law relating to reservation or not? 5. The appellant herein claims, as already indicated above, that a candidate of reserved category, though may be higher in merit than a candidate of general category, must be placed within the pool/quota of candidates belonging to reserved category and that the learned single Judge wrongly relied upon the decision, in Indra Sawhney (supra), to hold that a candidate shall be placed, in the general category, on the basis of the marks, which may be obtained by such a candidate. 6. Resisting the appeal, it has been submitted, on behalf of the respondents-State, that a reserved category candidate, who qualifies in the merit list, can be placed on the basis of his/her merit in the select list, along with general category candidates, inasmuch as such a candidate is moved to the pool of candidates belonging to the general category on the basis of his/her merit and that the law laid down, in Indra Sawhney (supra), still holds the field on this aspect of reservation. It is, therefore, law of the land as enunciated under Article 142 of the Constitution of India. 7. What needs to be noted, now, is that the appointments to the posts of Mahila Paryavekshikha in the Social Welfare Department, Government of Bihar, were to be made, in the present case, on contractual basis, and Annexure-2, which we have already referred to, made it clear that the selection would be made in accordance with 1991 Ordinance. Section 4 of 1991 Ordinance, being relevant, is re-produced below:- “4. Reservation for direct recruitment – All appointments to services and posts in an establishments which are to be filled by direct recruitment shall be regulated in the following manner, namely:- (1) The available vacancies shall be filled up – (a) from upon merit category ….. 50% (b) from reserved category …... 50% (2) The vacancies from different categories of reserved candidates from amongst the 50 % reserved category shall, subject to other provisions of this Ordinance, be as follows:- (a) Scheduled Castes …. …… 14% (b) Scheduled Tribes …. 50% (b) from reserved category …... 50% (2) The vacancies from different categories of reserved candidates from amongst the 50 % reserved category shall, subject to other provisions of this Ordinance, be as follows:- (a) Scheduled Castes …. …… 14% (b) Scheduled Tribes …. …… 10 % (c) Extremely Backward Class …… 12 % (d) Backward Class 12 … ……. 8% (e) Economically Backward Woman 3 % (f) Economically Backward .. 3 % Total ….. 50 % Provided that the State Government may, by notification in the official Gazette, fix different percentage for different districts in accordance with the percentage of population of Scheduled Castes/ Scheduled Tribes and Other backward classes in such districts: Provided further that in case of promotion, reservation shall be made only for Scheduled Castes/Scheduled Tribes in the same proportion as provided in this section. (3) A reserved category candidate, who is selected on the basis of his merit, shall be counted against 50% of vacancies of open merit category and not against the reserved category vacancies.” (Emphasis is added) 8. A careful reading of Section 4 of 1991 Ordinance shows that 50 per cent of the vacancies, in a case of direct recruitment, shall be based on merit and the remaining 50 per cent on the basis of reservation. Subsection (3) of Section 4 of 1991 Ordinance makes it clear that a reserved category candidate, who is selected on the basis of his/her merit, shall be counted against 50 per cent vacancies of open merit category and not against the reserved category vacancies. The constitutionality or legality of the provisions, embodied in sub-Section (3) of Section 4 of 1991 Ordinance, has not been under challenge nor was the application thereof was questioned, in the writ petition, by the writ petitioner. 9. In the present case, though the appointments were contractual in nature, the fact remains that the selections were to be based on merit as is evidenced from Annexure-1 to the writ petition, which clearly states that 75 per cent of the posts would be filled up on the basis of educational qualification ranging from matriculation to degree course. 10. 9. In the present case, though the appointments were contractual in nature, the fact remains that the selections were to be based on merit as is evidenced from Annexure-1 to the writ petition, which clearly states that 75 per cent of the posts would be filled up on the basis of educational qualification ranging from matriculation to degree course. 10. The reference, which has been made by the present appellant, to the decision, dated 27.09.2011, arrived at, in CWJC No. 10329 of 2008, is wholly misplaced inasmuch as the said decision is distinguishable in the sense that a learned single Judge of this Court drew a distinction between recruitment based on competitive examination and on educational qualification of Shiksha Mitra and arrived at the conclusion, in the context of the facts of the case, that since selection of Shiksha Mitra was based on the marks obtained during academic years by candidates and there was no element of competition, benefit of the law, laid down in Indra Sawhney (supra), would not be applicable. Since the correctness of the said decision, involving cases of Shiksha Mitra, is not a subject matter of challenge, we express no opinion on the correctness or otherwise of the said decision. 11. We, however, in the context of the facts of the present case, make it clear that the selection for appointment, on contractual basis, to the posts of Mahila Paryavekshikha were required to be made on the basis of scheme of reservation embodied in 1991 Ordinance and, therefore, Section 4(3) of 1991 Ordinance was applicable to the present case, which makes it clear that a reserved category candidate, who is selected on the basis of his/her merit, shall be counted against 50 per cent of vacancies of open merit category and not against the reserved category vacancies. 12. Because of what has been discussed and pointed out above, we are clearly of the view that the decision, impugned in this appeal, is in accordance with law and does not call for interference in appeal. 13. We find no infirmity, factual or legal, in the decision arrived at by the learned single Judge. 14. This appeal, therefore, fails and shall, accordingly, stand dismissed. I.A. Ansari, J. : I agree.