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Meghalaya High Court · body

2017 DIGILAW 51 (MEG)

Amar Singh v. State of Meghalaya

2017-07-19

S.R.SEN

body2017
JUDGMENT : S.R. Sen, J. Heard Mr. K. Paul, learned counsel for the petitioners as well as Ms. G. Deka, learned Sr. GA and Mr. D. Mazumdar, learned Sr. counsel assisted by Mr. K.P. Bhattacharjee, learned GA for the State respondents. 2. In WP(C) No. 103 of 2016 the brief fact of the petitioner's case in a nutshell is that: "This is an application under Article 226 of the Constitution of India for issuance of a writ in the nature of Mandamus and/or Certiorari and/or any other writ, order or direction assailing the entire selection process culminating into publication of the select list (Annexure-7) for the post of (Cook) Male in the Prisons Department, Meghalaya. The brief facts of the case are that in the year 2015 an advertisement vide memo No. PRI50/2015/3 dated 21.05.2015 was published by the Respondent No. 5 Chairman, Prisons Recruitment Board inviting applications from eligible candidates for recruitment of 4(four) posts of Cook(Male) in Prisons Department, Meghalaya and having passed in the Physical Test, the petitioner appeared for personal interview and secured 124 marks out of 150 marks and subsequently the select/Merit list was published wherein the Petitioner did not find a place among those 4(four) candidates shortlisted for appointment in-spite of him secured more marks than the successful candidates in the said personal interview and after having all requisite qualifications. Moreover in the Select/Merit List, only the names of candidates belonging to schedule tribes (Khasi/Jaintia and Garo) are shown. More shockingly there is no list for Open Category candidates. Furthermore the advertisement dated 21.05.2015 as well as the Recruitment Rules notified on 06.04.2015 nowhere discloses the number of reserved posts to be filled up annually therefore leading to the inevitable inference that all the posts were advertised as general category posts. As such the action of the Respondents in selecting ST candidates against all the 4 (four) posts is absolutely illegal and perverse and unconstitutional. The entire selection process thus being marred is scrutinized in the back drop of settled law in this regard with procedural lapses and driven with an oblique motive of encouraging cent percent reservation. As such the action of the Respondents in selecting ST candidates against all the 4 (four) posts is absolutely illegal and perverse and unconstitutional. The entire selection process thus being marred is scrutinized in the back drop of settled law in this regard with procedural lapses and driven with an oblique motive of encouraging cent percent reservation. As such being aggrieved and dissatisfied with the entire selection process, the petitioner has approached this Hon'ble Court for redressal of his genuine grievance." In WP(C) No. 82 of 2016 "This is an application under Article 226 of the Constitution of India for issuance of a writ in the nature of Mandamus and/or Certiorari and/or any other writ, order or direction assailing the entire selection process culminating into publication of the select list (Annexue-9) for the post of Male Warder in the Prisons Department, Meghalaya. The brief facts of the case are that in the year 2015 an advertisement vide memo No. PRI50/2015/3 dated 21.05.2015 was published by the Respondent No. 5 Chairman, Prisons Recruitment Board inviting applications from eligible candidates for recruitment of 60(sixty) posts of Warder (Male) in Prisons Department, Meghalaya and having passed in the Physical Test, the petitioner appeared for personal interview and secured 106 marks out of 150 marks and subsequently the select/Merit list was published wherein the Petitioner did not find a place among those 65 candidates short-listed for appointment in-spite of him secured more marks than the successful candidates in the said personal interview and after having all requisite qualifications. Moreover in the Select/Merit List, only the names of candidates belonging to schedule tribes (Khasi/Jaintia and Garo) are shown. More shockingly there is no list for SC/OBC candidates even though the State Reservation Policy vide Resolution No. PER.222/71/138 dated 12.01.1972 provides for 5% reservation for candidates who are schedule Castes and OBC. Furthermore the advertisement dated 21.05.2015 as well as the Recruitment Rules notified on 06.04.2015 nowhere discloses the number of reserved posts to be filled up annually therefore leading to the inevitable inference that all the posts were advertised as general category posts. As such the action of the Respondents in selecting ST/SC candidates against open category posts is absolutely illegal and perverse and unconstitutional. As such the action of the Respondents in selecting ST/SC candidates against open category posts is absolutely illegal and perverse and unconstitutional. Furthermore by not holding any written examination where qualitative assessment of candidates could be done on the same set of questions thereby paving the way for merit to be the touch stone in deciding the candidature, the Respondents have actually sought to subvert the Constitutional mandate. The entire selection process thus being marred is scrutinized in the back drop of settled law in this regard with procedural lapses and driven with an oblique motive of encouraging cent percent reservation. As such being aggrieved and dissatisfied with the entire selection process, the petitioner has approached this Hon'ble Court for redressal of his genuine grievance." In WP(C) No. 85 of 2016 "This is an application under Article 226 of the Constitution of India for issuance of a writ in the nature of Mandamus and/or Certiorari and/or any other writ, order or direction assailing the entire selection process culminating into publication of the select list (Annexue-8) for the post of Male Warder in the Prisons Department, Meghalaya. The brief facts of the case are that in the year 2015 an advertisement vide memo No. PRI50/2015/3 dated 21.05.2015 was published by the Respondent No. 5 Chairman, Prisons Recruitment Board inviting applications from eligible candidates for recruitment of 60 posts of Warder (Male) in Prisons Department, Meghalaya and having passed in the Physical Test, the petitioner appeared for personal interview and secured 105 marks out of 150 marks and subsequently the select/Merit list was published wherein the Petitioner did not find a place among those 65 candidates shortlisted for appointment in-spite of him secured more marks than the successful candidates in the said personal interview and after having all requisite qualifications. Moreover in the Select/Merit List, only the names of candidates belonging to schedule tribes (Khasi/Jaintia and Garo) are shown. More shockingly there is no list for SC/OBC candidates even though the State Reservation Policy vide Resolution No. PER.222/71/138 dated 12.01.1972 provides for 5% reservation for candidates who are schedule Castes and OBC. Furthermore the advertisement dated 21.05.2015 as well as the Recruitment Rules notified on 06.04.2015 nowhere discloses the number of reserved posts to be filled up annually therefore leading to the inevitable inference that all the posts were advertised as general category posts. Furthermore the advertisement dated 21.05.2015 as well as the Recruitment Rules notified on 06.04.2015 nowhere discloses the number of reserved posts to be filled up annually therefore leading to the inevitable inference that all the posts were advertised as general category posts. As such the action of the Respondents in selecting ST/SC candidates against open category posts is absolutely illegal and perverse and unconstitutional. Furthermore by not holding any written examination where qualitative assessment of candidates could be done on the same set of questions thereby paving the way for merit to be the touch stone in deciding the candidature, the Respondents have actually sought to subvert the Constitutional mandate. The entire selection process thus being marred is scrutinized in the back drop of settled law in this regard with procedural lapses and driven with an oblique motive of encouraging cent percent reservation. As such being aggrieved and dissatisfied with the entire selection process, the petitioner has approached this Hon'ble Court for redressal of his genuine grievance." In WP(C) No. 102 of 2016 "This is an application under Article 226 of the Constitution of India for issuance of a writ in the nature of Mandamus and/or Certiorari and/or any other writ, order or direction assailing the entire selection process culminating into publication of the select list (Annexue-7) for the post of Naik AB (Male) in the Prisons Department, Meghalaya. The brief facts of the case are that in the year 2015 an advertisement vide memo No. PRI50/2015/3 dated 21.05.2015 was published by the Respondent No. 5 Chairman, Prisons Recruitment Board inviting applications from eligible candidates for recruitment of 11 (eleven) posts of Naik AB (Male) in Prisons Department, Meghalaya and having passed in the Physical Test, the petitioner appeared for personal interview and secured 100 marks out of 150 marks respectively and subsequently the select/Merit list was published wherein the Petitioners did not find a place among those four candidates shortlisted for appointment in-spite of him secured more marks than the successful candidates in the said personal interview and after having all requisite qualifications. Moreover in the Select/Merit List, only the candidates belonging to schedule tribes are selected in the Open Category. Moreover in the Select/Merit List, only the candidates belonging to schedule tribes are selected in the Open Category. Furthermore the advertisement dated 21.05.2015 as well as the Recruitment Rules notified on 06.04.2015 nowhere discloses the number of reserved posts to be filled up annually therefore leading to the inevitable inference that all the posts were advertised as general category posts. As such the action of the Respondents in selecting ST/SC candidates against open category posts is absolutely illegal and perverse and unconstitutional in as much as it is settled law that reservation under Article 16 (4) cannot be given such wide interpretation, such that it defeats the very purpose and object of Article 16 (1) of Constitution of India and relaxation if any are to be customized so as to create a level playing field rather than give undue advantage to a certain section or set of candidates. Furthermore by not holding any written examination where qualitative assessment of candidates could be done on the same set of questions thereby paving the way for merit to be the touch stone in deciding the candidature, the Respondents have actually sought to subvert the Constitutional mandate. The entire selection process thus being marred is scrutinized in the back drop of settled law in this regard with procedural lapses and driven with an oblique motive of encouraging cent percent reservation. As such being aggrieved and dissatisfied with the entire selection process, the petitioner has approached this Hon'ble Court for redressal of his genuine grievance." 3. The learned counsel for the petitioners argued that in pursuant to the advertisement dated 21.05.2015 issued by the Office of the Director General of Prisons, Meghalaya, Shillong the petitioners, Shri Amar Singh applied for the post of (Cook) Male, Shri. Rajen Balmiki applied for the post of Male Warder, Shri. Bhakta Prallad Das applied for the post of Male Warder and Shri Jitendra Thakur applied for the post of Naik AB (Male) and further argued that the said petitioners mentioned above, despite having passed the physical test and personal interview and having scored more than the successful candidates were not selected. The learned counsel further contended that the petitioner, Shri Amar Singh secured 300 marks out of 300 marks i.e. the full marks in the physical test, and was placed under serial No. 101; in the personal interview he also secured 124 marks out of 150 marks and was placed under serial No. 67. The Petitioner, Shri. Rajen Balmiki secured 300 marks out of 300 marks i.e. the full mark in the physical test, and was placed under serial No. 343; in the personal interview he secured 106 marks out of 150 marks and placed under serial No. 242. The petitioner, Shri Bhakta Prallad Das secured 300 marks out of 300 marks i.e. the full marks in the physical test, and was placed under serial No. 277; in the personal interview he secured 105 marks out of 150 marks and was placed under serial No. 187. The petitioner, Shri Jitendra Thakur secured 300 marks out of 300 marks i.e. the full marks in the physical test, and was placed under serial No. 84; in the personal interview he secured 100 marks out of 150 marks and was placed under serial No. 84. However, the above petitioners were not selected despite having secured good marks in the Open Category (General Quota) and instead it is found that other candidates belonging to reserved category had been placed in the general quota. The learned counsel further argued that the selected list had amounted to cent percent reservation, as such the entire selection list is malafide and against the principle of Constitutional mandate as well as the State Government policy. 4. In support of his submission, the learned counsel for the petitioners relied on the following judgments which are as under: (i) Indra Sawhney and Ors v. Union of India: 1992 Supp (3) SCC Page 217. (ii) Jitendra Kumar Singh and Anr v. State of Uttar Pradesh and Ors: (2010) 3 SCC Page 119 (iii) M. Nagaraj and Ors v. Union of India and Ors: (2006) 8 SCC Page 212 (iv) Post Graduate Institute of Medical Education and Research, Chandigarh v. Faculty Association and Ors: (1998) 4 SCC Page 1 (v) Triloki Nath and Anr v. The State of Jammu and Kashmir and Ors: AIR 1967 SC Page 1283. (vi) Lila Dhar v. State of Rajasthan and Ors: (1981) 4 SCC Page 159 (vii) Anil Chandra and Ors v. Radha Krishna Gaur and Ors: (2009) 9 SCC Page 454 (viii) Dr. Pradeep Jain and Ors. v. Union of India and Ors: (1984) 3 SCC 654 5. On the other hand, Ms. G. Deka, learned Sr. GA submits that the selection list was based on Government policy and the Government can fill up the vacancy as per their suitability. However, she could not satisfy the Court, on whether reservation can be on the whims and will of the State or by following the mandate of law. In support of her submission, the learned Sr. GA for the State respondents relied on the following judgments which are as under: (i) Union of India and Ors v. M. Selvakumar and Anr: (2017) 3 SCC Page 504 (ii) State of Arunachal Pradesh and Anr v. Soilen Phukan and Ors: (2007) 4 GLT Page 321 (iii) Madras Institute of Development Studies and Ors v. K. Sivasubramaniyan and Ors:(2016) 1 SCC Page 454 (iv) N.T.R. University of Health Sciences, Vijaywada v. G. Babu Rajendra Prasad and Anr: AIR (2003) SC 1947 Further, the learned Sr. GA also relied in the case of Indra Sawhney and Ors v. Union of India: 1992 Supp (3) SCC Page 217, Para 810, which is reproduced herein below: "810. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out." 6. After hearing the submissions advanced by the learned counsel for the parties, I find that the two crux issues that have arisen before this Court are: 1. Can reservation be cent percent? 2. When there exists a 'Reservation Policy,' in such circumstances, whether the candidate of one category can be placed in other category? After hearing the submissions advanced by the learned counsel for the parties, I find that the two crux issues that have arisen before this Court are: 1. Can reservation be cent percent? 2. When there exists a 'Reservation Policy,' in such circumstances, whether the candidate of one category can be placed in other category? It is well known that cent percent reservation is not permitted by our Constitution, generally reservation should remain confined within 50%, however it is also a well known that different Courts in the country have held exceptions to this rule with considerations to the facts and circumstances as well as the backwardness in that particular State or area. 7. The Hon'ble Supreme Court in the case of K. Krishna Murthy v. Union of India: (2010) 7 SCC Page 202 Para 66 has observed that: "66. Admittedly, reservations in excess of 50% do exist in some exceptional cases, when it comes to the domain of political representation. For instance, the Legislative Assemblies of the States of Arunachal Pradesh, Nagaland, Meghalaya, Mizoram and Sikkim have reservations that are far in excess of the 50% limit. However, such a position is the outcome of exceptional considerations in relation to these areas. Similarly, vertical reservations in excess of 50% are permissible in the composition of local self-government institutions located in the Fifth Schedule Areas." 8. The Hon'ble Gauhati High Court in the case of State of Arunachal Pradesh and Anr v. Soilen Phukan: (2007) 4 GLT Page 321 Para 10 has held that: "10. The equality clause enshrined by Article 14 of the Constitution is vibrant and dynamic; not static or pedantic. Similarly, the fundamental right to equality of opportunity in public employment guaranteed by Article 16(1) of the Constitution does not contain any prescription of equality by a mechanical application of laws with arithmetical precision. The persistent endeavour discernible in the long line of judicial pronouncements has been to infuse life blood into the constitutional goal of equality and to bring about equality amongst unequals by approving affirmative and progressive State action leaning in favour of the socially and economically backward classes of citizens. Article 16(4) which enables such State action, therefore, permits protective discrimination to make the equality clause guaranteed by Articles 14 and 16(1) of the Constitution real and meaningful. Article 16(4) which enables such State action, therefore, permits protective discrimination to make the equality clause guaranteed by Articles 14 and 16(1) of the Constitution real and meaningful. However, any positive action by the State, which seemingly may appear to be an instance of unequal treatment, has to be justified on the touchstone of the provisions contained in Articles 38, 46, 335, 338, 338A and 340 of the Constitution. Relevant data demonstrating the social and economic deprivation of the classes of citizens to whom protective discrimination is being offered must exist to justify such an exercise. Reservation of posts under Article 16(4) will not offend Article 16(1) so long the necessity to provide reservation can be justified by reference to relevant data demonstrating the backwardness of the particular classes which had prompted the exercise. Viewed from the above context any provision for reservation of posts in public service for general category candidates, who do not obviously suffer from any visible or discernible social or economic backwardness, would be a Constitutional antithesis. The Constitutional exercise of identification of the classes/group for the inclusion in the list of Scheduled Castes, Scheduled Tribes and Other Backward Classes is but on the basis of social, economic and educational backwardness thereby making 'reservation' for general category candidates a Constitutional misnomer." 9. The Hon'ble Supreme Court in the case of Jitendra Kumar Singh and Anr v. State of Uttar Pradesh and Ors: (2010) 3 SCC Page 119 Para 40 and 41 has also observed that: "40. The Division Bench in the impugned judgment has traced the history of reservation at considerable length. It has also distinguished between vertical and horizontal reservations. It has also correctly concluded that in case of horizontal reservation, the carry-forward rule would not be applicable. All these issues are no longer res integra, in view of the authoritative judgment rendered in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217. It can also be no longer disputed that reservation under Article 16(4) of the Constitution of India aims at group backwardness. It provides for group right. Article 16(1) of the Constitution of India guarantees equality of opportunity to all citizens in matters relating to employment. However, in implementing the reservation policy, the State has to strike a balance between the competing claims of the individual under Article 16(1) and the reserved categories falling within Article 16(4). 41. It provides for group right. Article 16(1) of the Constitution of India guarantees equality of opportunity to all citizens in matters relating to employment. However, in implementing the reservation policy, the State has to strike a balance between the competing claims of the individual under Article 16(1) and the reserved categories falling within Article 16(4). 41. A Constitution Bench of this Court in the case of Indra Sawhney case (supra), this Court reiterated the need to balance the fundamental right of the individual under Article 16(1) against the interest and claim of the reserve category candidates under Article 16(4) of the Constitution. (SCC pp. 734-35, para 808) "808. It needs no emphasis to say that the principal aim of Article 14 and 16 is equality and equality of opportunity and that Clause (4) of Article 16 is but a means of achieving the very same objective. Clause (4) is a special provision - though not an exception to Clause (1). Both the provisions have to be harmonized keeping in mind the fact that both are but the restatements of the principle of equality enshrined in Article 14. The provision under Article 16(4) - conceived in the interest of certain sections of society - should be balanced against the guarantee of equality enshrined in Clause (1) of Article 16 which is a guarantee held out to every citizen and to the entire society. It is relevant to point out that Dr. Ambedkar himself contemplated reservation being 'confined to a minority of seats' (see his speech in Constituent Assembly, set out in para 693). No other member of the Constituent Assembly suggested otherwise. It is thus, clear that reservation of a majority of seats [were] never envisaged by the Founding Fathers. Nor are we satisfied that the present context requires us to depart from that concept." 10. The Hon'ble Supreme Court in the case of Union of India and Ors v. M. Selvakumar and Anr: (2017) 3 SCC Page 504 Para 23 was pleased to observe that: "23. A nine-Judge Bench in Indra Sawhney v. Union of India 1992 Supp. (3) SCC 217 had elaborately considered both the concepts of reservation. In Para 812 of the said judgment, Justice B.P. Jeevan Reddy, has referred to both the types of reservations. It was held that horizontal reservations cut across the vertical reservation. The following was stated: (SCC pp. 735-36) 812. (3) SCC 217 had elaborately considered both the concepts of reservation. In Para 812 of the said judgment, Justice B.P. Jeevan Reddy, has referred to both the types of reservations. It was held that horizontal reservations cut across the vertical reservation. The following was stated: (SCC pp. 735-36) 812. ....There are two types of reservations, which may, for the sake of convenience, be referred to as "vertical reservations" and "horizontal reservations". The reservations in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations - what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains - and should remain - the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure." 11. The Hon'ble Supreme Court in the case of Triloki Nath Tiku and Anr v. The State of Jammu and Kashmir and Ors: AIR 1967 SC 1283 Para 7 observed that: "7. The decision in R. Chitralekha v. State of Mysore, (1964) 6 SCR 368 : ( AIR 1964 SC 1823 ), also turned upon the interpretation of Article 15(4) of the Constitution. In that case the Government of Mysore laid down that classification of socially and educationally backward classes should be made on the following basis: (i) economic conditions, and (ii) occupation. But the order of the Government did not take into consideration the caste of the applicant as one of the criteria for backwardness. In that case the Government of Mysore laid down that classification of socially and educationally backward classes should be made on the following basis: (i) economic conditions, and (ii) occupation. But the order of the Government did not take into consideration the caste of the applicant as one of the criteria for backwardness. This Court pointed out that, though the caste of a group of citizens might be a relevant circumstance in ascertaining their social backwardness, it could not be the sole or the dominant test in that behalf. This Court accepted the criteria adopted by the Mysore Government for ascertaining the backwardness of a class. The argument advanced on behalf of the State, namely, that the difference in the phraseology used in Article 15(4) and Article 16(4), namely, socially and educationally backward classes in the former and backward classes in the latter, leads to the inevitable conclusion that "backward classes" of citizens in Article 16(4) are only such classes of citizens who are not adequately represented in the services of the State does not appeal to us. The sole test of backwardness under Article 16(4), the argument proceeds, is the inadequacy of representation in the services under the State; that is to say, however advanced a particular class of citizens, socially and educationally, may be, if that class is not adequately represented in the services under the State, it is a backward class. This contention, if accepted, would exclude the really backward classes from the benefit of the provision and confer the benefit only on a class of citizens who, though rich and cultured, have taken to other avocations of life. It is, therefore, necessary to satisfy two conditions to attract clause (4) of Article 16, namely, (i) a class of citizens is backward, i.e., socially and educationally, in the sense explained in Balaji's case (supra); and (ii) the said class is not adequately represented in the services under the State." 12. After carefully reading the judgments and observations made by the Hon'ble Supreme Court and Hon'ble Gauhati High Court, I am of the considered view that 50% reservation is a mandate. However, it can be increased or decreased taking into consideration the local scenario and backwardness of the population of that particular area, but in no way can the reservation be cent percent. However, it can be increased or decreased taking into consideration the local scenario and backwardness of the population of that particular area, but in no way can the reservation be cent percent. The main purpose of reservation is to push the backward class and to bring them on an equal footing to the forward class, so that no discrimination should remain. The Constitution of India did not empower any Government or any Authority to uplift backward class at the cost of general class. In my view the reservation should be provided only to those sections of persons who are economically backward, because when a person is economically backward, he can be termed or called as a 'socially backward' person. It will be totally wrong to say that backwardness depends upon the caste and title of a person. We often observed that a person belonging to a higher caste is so poor that he is not in a position to give proper education to his children. Similarly, at the same time, we also observe that people belonging to a backward caste are financially well off that they can send their children to foreign countries for their higher studies, etc. It is also not possible to determine the intelligence on the basis of caste, creed and religion. 13. On perusal of the Annexure-7 of the WP(C) No. 103 of 2016, Annexure-9 of the WP(C) No. 82 of 2016, Annexure-8 of the WP(C) No. 85 of 2016 and Annexure-7 of the WP(C) No. 102 of 2016, it appears to me that all the posts are filled up by SC/STs and other backward classes and none of the general candidates found their place in the Open Category results, which is unwanted as it clearly shows that the reservation followed is cent percent, though Reservation Policy of the Government states 40% for Khasi and Jaintia, 40% for Garo, 5% for other backward classes and 15% for general category. Whenever any vacancy arises with reservation available to different categories of persons, competition for seats for general category should be among persons belonging to general category only and similarly, competition for seats reserved for SC/STs category should be confined among persons belonging to those categories. Likewise, the same should apply to other backward classes. Whenever any vacancy arises with reservation available to different categories of persons, competition for seats for general category should be among persons belonging to general category only and similarly, competition for seats reserved for SC/STs category should be confined among persons belonging to those categories. Likewise, the same should apply to other backward classes. For e.g. suppose vacancy of 10(ten) posts is available for general category against the bench mark or cut-off mark fixed against the general category list, then such competition should be in the general category and whoever secures the qualified marks fixed should be accommodated in the general category. If no person is found suitable, then such posts will have to be re-advertised. Besides that, I would also like to point out that 1(one) post can never be reserved as it will amount to cent percent reservation. So, the Government will have to make an appropriate policy. For instance, if in a year 3(three) posts are advertised on 3(three) different occasions, then suppose if the first seat is given to a person belonging to an ST category, then the second seat should be given to a person belonging to other backward classes. In the same way the third seat should be accommodated to a person belonging to general category. We must remember that the Reservation System at the time of framing of the Constitution of India was not made absolute and final, it was made for 10(ten) years and was required to be reviewed every 10(ten) years. 14. After hearing the facts and circumstances of these instant writ petitions, I am certain that the Reservation Policy has never been reviewed and has been carried on since the year 1972. 15. On further hearing on 10.07.2017, Mr. K. Paul, learned counsel for the petitioners argued that the present Reservation Policy is totally defective and not providing equal opportunities to all the citizens of the country. The learned counsel for the petitioners in support of his submission submitted a chart showing that discrimination is very much there as it appears from the data submitted by the Government before this Court. The data ratio of appointment was prepared by the learned counsel for the petitioners which has been marked as Annexure-1 by this Court for ready reference and also produced the information collected from the Census Department of the Government of Meghalaya consisting of 6(six) pages and marked as Annexure-II. The data ratio of appointment was prepared by the learned counsel for the petitioners which has been marked as Annexure-1 by this Court for ready reference and also produced the information collected from the Census Department of the Government of Meghalaya consisting of 6(six) pages and marked as Annexure-II. These Annexures-1 and II shall be treated as a part of this judgment. These Annexures clearly shows that the general category is not getting its due share in its respective category; rather their numbers are reducing year after year, which is highly illegal and pure violation of Article 14 and 16 of the Constitution of India. 16. On the other hand, Mr. D. Mazumdar, learned Sr. counsel appearing for and on behalf of the State respondents submits that this Reservation Policy was prepared in the year 1972 with the intention to uplift the backward classes of people and to bring them to an equal position. However, the learned Sr. counsel could not satisfy or give any satisfactory answer as to how and why the proportion of reservation are not maintained by the Government since the time of preparation of the Reservation Policy. He also agreed that the policy may not be followed as per the Constitution of India as well as other rules and fairly agreed that one post cannot be reserved. 17. After hearing the submissions advanced by the learned counsel referred above and after going through the different judgments and Constitutional provision as well as the Reservation Policy of the Government, in my humble understanding, the provision of Reservation Policy was adopted by our Constitution makers to bring equality among all sections of the people both backward category as well as general category. The whole intention of the Constitution makers was to see that no one should remain backward. It was not the intention of the Constitution makers to bring down the general classes to the bottom and to push the backward classes to the top. The sole intention of the Constitution makers was that there will be no backward classes and they should come to the level of the general classes. It was not the intention of the Constitution makers to bring down the general classes to the bottom and to push the backward classes to the top. The sole intention of the Constitution makers was that there will be no backward classes and they should come to the level of the general classes. It is an undisputed fact that in Meghalaya it appears that Reservation Policy has been divided into 4(four) categories, i.e. 40% seats has been reserved for Khasi and Jaintia, 40% for Garo, 5% for other backward classes and 15% for general category, but unfortunately it is noticed that these 4(four) categories are not maintained strictly. It is always noticed that in general category a candidate from backward category are placed on the plea that he/she has obtained the highest marks, which is very much wrong and against the principle of Reservation Policy. Since the 4(four) categories are made, the competition should be within the respective category. A candidate from one category cannot enter in other category, for e.g. suppose reserved category such as, Khasi and Jaintia, Garo and other backward classes, if the qualified mark or bench mark is fixed at 50%, the competition will be within that mark amongst them self, if the bench mark or qualified mark is made for general category at 60% and Khasi/Jaintia or Garo or any other backward classes candidate obtained 60% or 65% he/she will not be able to enter the general category. In one word we can say that each and every candidate will have to compete within their respective categories and will be selected in order of merit, they cannot be brought to other categories even if they get highest mark than a candidate who applied from general category. In case if no person is found suitable or could not obtain bench mark or pass mark, fixed for general category, then in that case such posts will have to be re-advertised and to fill up from general category only, but it cannot be filled up by a candidate from SC/STs category or other backward classes on the plea that someone from SC/ST or other backward classes has obtained the bench mark or highest marks than a general candidate. 18. 18. I have perused the Office Memorandum dated Shillong, the 19th December, 1981 which is annexed as Annexure-6 of the affidavit filed on behalf of the State respondents and the same is reproduced herein below for ready reference: "No. Per(Ar). 257/81/8 Government of Meghalaya Personnel and Admv, Reforms (B) Department Office Memorandum Dated Shillong, the 19th December, 1981. Subject: - Reservation of vacancies for Scheduled Castes and Scheduled Tribes. The undersigned is directed to invite attention to Government Resolution No. PER. 222/71/138, dated 12th January, 1972 (circulated under Memo No. PER. 222/71/140 dated 12th January, 1972) as amended vide Office Memorandum No. PER. 222/71/141, dated 20th April, 1972, Office Memorandum No. PER. 222/71/Pt. III/22, dated 25th November, 1976 and Office Memorandum No. PER. (AR.) 64/79/15, dated 12th September, 1979 in so far as they pertain to reservations that shall be made in favour of the Scheduled Tribes and Scheduled Castes in posts and services connected with the affairs of the Meghalaya and to say that a question has arisen as to how to regulate those reservations in a situation where the number of vacancies is very small. After careful consideration of all the aspects and principles already enunciated in the above mentioned Resolution and Office Memoranda, Government have decided that where the number of vacancies is 9 (nine) or less, the same shall be treated as reserved vacancies in favour of the protected communities as specified in the said Resolution and Office Memoranda. Sd/- H.A.D. Sawian, Special Secy. to the Govt. of Meghalaya, Personnel and Administrative Reforms (B) Department." On perusal of the Office Memorandum dated Shillong, the 19th December, 1981, I find that the Reservation Policy is full of discrimination and contrary to the provision of the Constitution of India. Further, I mentioned here that one post cannot be reserved at any cost, which is totally against the principle of the Constitution of India. Initially, the makers of the Constitution made a provision of Reservation Policy for 10(ten) years and subject to review for every 10(ten) years, but it is painful and unfortunate that no review or revisit has been made as required. 19. Initially, the makers of the Constitution made a provision of Reservation Policy for 10(ten) years and subject to review for every 10(ten) years, but it is painful and unfortunate that no review or revisit has been made as required. 19. I have also perused the Resolution dated 12th January, 1972 published in the Gazette of Meghalaya which is annexed as Annexure-1 of the affidavit filed on behalf of the State respondents and the same is reproduced herein below for ready reference: "The 12th January, 1972 Resolution No. PER. 222/71/138. - The question of reservation of posts in favour of the Scheduled Tribes and Scheduled Castes has been under careful consideration of this Government. It has now been decided in pursuance of clause 4 of Article 16 of the Constitution and keeping in view the inadequacy of representation of these communities in the services under the autonomous State of Meghalaya in terms of their population that, consistently with the maintenance of efficiency in the administration, the following reservation shall be made in favour of the Scheduled Tribes and Scheduled Castes in posts and services in connection with the affairs of Meghalaya which are filled by direct recruitment:- (a) There shall be a reservation of 40 per cent of the vacancies in favour of Khasis and Jaintias. (b) There shall be a reservation of 40 per cent of the vacancies in favour of Garos. (c) There shall be a reservation of 5 per cent of the vacancies in favour of any other Scheduled Tribes of the Autonomous Districts of Assam now within Meghalaya and the Scheduled Castes of Assam. 2. If sufficient number of suitable candidates for filling up the reserved vacancies is not available from the respective classes in any particular year, then such vacancies will be available to others. But the deficiency in the number of Scheduled Tribes and Scheduled Castes will be carried forward to the next recruitment year and made good in the recruitment of that year, provided that the reservation on account of the deficiency shall not be carried forward for more than one year. After the expiry of the second year, these reservations shall be treated as lapsed. It has also been decided that at no time shall the number of normal reserved vacancies and the 'carry forward' vacancies together exceed 90 per cent of the total number of vacancies in that year. 3. After the expiry of the second year, these reservations shall be treated as lapsed. It has also been decided that at no time shall the number of normal reserved vacancies and the 'carry forward' vacancies together exceed 90 per cent of the total number of vacancies in that year. 3. There might be instances when an eligible candidate belonging to Scheduled Tribes and Scheduled Castes may not be appointed because the reserve quota in a particular recruitment year on the basis of the percentage of vacancies mentioned above may be less than 0.5 but taking the cadre as a whole the particular class to which the candidate belongs may be grossly under-represented. In such cases it has also been decided to allow further concession to such under-represented class of Scheduled Tribes and Scheduled Castes in a cadre (as may be determined from time to time by the appointing authority concerned) to the extent indicated below:- (1) A fraction upto 0.4 of the vacancy to which the protected category is entitled on the basis of the reservation against the projected intake in any recruitment year shall be rounded to one in favour of candidate belonging to an underrepresented community of the protected category. (2) For the benefit of candidates belonging to such under-represented class, the reservation on account of the deficiency shall be carried forward upto two subsequent recruitment years before the reservation in respect of the protected category is finally treated as lapsed. 4. The reservation mentioned above will not apply to - (1) vacancies filled by transfer or deputation or by promotion, (2) temporary appointments of less than 45 days duration, (3) purely temporary establishments such as work-charged staff including the daily-rated and monthly-rated staff. 5. There shall be no reservation of vacancies for Scheduled Tribes and Scheduled Castes in scientific services and posts and in appointments for conducting research or organizing guiding and directing research. 6. There shall be no relaxation of the educational and other qualifications in respect of posts and services in connection with the affairs of Meghalaya. 7. These orders shall take effect from the date of issue of this Resolution and shall be applicable to all appointments made on or after this date. 6. There shall be no relaxation of the educational and other qualifications in respect of posts and services in connection with the affairs of Meghalaya. 7. These orders shall take effect from the date of issue of this Resolution and shall be applicable to all appointments made on or after this date. All advertisements for posts and services under the Government of Meghalaya issued before this date shall be deemed to have been modified to the extent of the orders contained in this Resolution. ORDER Ordered that a copy of the Resolution be communicated to the Secretary to the Governor, the Private Secretary to the Chief Minister, Private Secretary to all Ministers, all Secretaries to the Government of Meghalaya, all Heads of Departments, all Deputy Commissioners and Subdivisional Officer, Secretary, Assam Public Service Commission and all Departments and offices under the Government of Meghalaya for information. Ordered also that the Resolution be published in the Meghalaya Gazette for general information. Sd/- V. Ramakrishnan, Secretary (Special) to the Govt. of Meghalaya, Personnel Deptt." Though the Resolution is annexed in the file, but the Government failed to produce and to examine whether the Resolution is a Government policy as per law, on the plea that the file is missing. 20. Before I conclude my judgment, I further repeat that a candidate of one category cannot enter the other category even if he/she obtained better marks and the Government should follow the present Reservation Policy which is 40% for Khasi and Jaintia, 40% for Garo, 5% for other backward classes and 15% for general category proportionately and equally, otherwise the dream and intention of our Constitution to bring all the citizens in one level is bound to collapse, because forward classes will come down and backward classes will go up, which is not the intention of the makers of the Constitution of India. The present appointment followed by the Government to bring a candidate from one category to the other category is totally illegal, unconstitutional and in violation of the Article 14 and 16 of the Constitution of India. Hence, I direct the Government to follow the appointment policy as discussed above and I leave with the State Government and the Central Government to review the Reservation Policy, but it should not be at any cost against the principle of Article 14 and 16 of the Constitution of India. Hence, I direct the Government to follow the appointment policy as discussed above and I leave with the State Government and the Central Government to review the Reservation Policy, but it should not be at any cost against the principle of Article 14 and 16 of the Constitution of India. Further, another question which came to my mind as I have stated earlier is that, a person is backward only when he is economically unsound. Now the question which arises is that, those who are economically sound and whose parents are holding higher post, whether their children are entitled for further reservation? That I leave it to the State Government and the Central Government to consider and this question remains open. 21. The stay orders dated 14.03.2016 passed in WP(C) No. 82 of 2016 and 14.03.2016 passed in WP(C) No. 85 of 2016 are hereby vacated. 22. With this observation and direction the writ petitions bearing WP(C) No. 103 of 2016, WP(C) No. 82 of 2016, WP(C) No. 85 of 2016 and WP(C) No. 102 of 2016 are allowed and stands disposed of by this common Judgment and Order. It is hereby noted further that those who have obtained qualified marks or bench marks as fixed for their respective categories only they can be appointed in that particular category itself. To be more clear, one category cannot encroach in the other category even if they get the highest marks. The observations and directions given above to be followed strictly. When, while revisiting the Reservation Policy, the Government should keep in mind that the Constitution of India does not desire more than 50% reservation and a Nationalistic view should be taken so that no class or citizen is deprived of his/her rights guaranteed by the Constitution of India. 23. The Registrar General is directed to send a copy of this Judgment and Order to the Chief Secretary, Government of Meghalaya immediately, who in turn shall circulate this Judgment and Order to all Government Offices, including schools and colleges where reservation is applied for strict compliance. 24. 23. The Registrar General is directed to send a copy of this Judgment and Order to the Chief Secretary, Government of Meghalaya immediately, who in turn shall circulate this Judgment and Order to all Government Offices, including schools and colleges where reservation is applied for strict compliance. 24. It is further directed that the Chief Secretary, Government of Meghalaya shall forward a copy of this Judgment and Order to the Secretary to the Hon'ble Prime Minister of India, Secretary to the Hon'ble Law Minister, Government of India, Secretary to His Excellency the Governor of Meghalaya and Secretary to the Hon'ble Chief Minister of Meghalaya with a request to place the same before the Hon'ble Prime Minister of India, the Hon'ble Law Minister, Government of India, His Excellency the Governor of Meghalaya and the Hon'ble Chief Minister of Meghalaya for their kind perusal. 25. The Chief Secretary, Government of Meghalaya is further directed to submit a compliance report before the Court within 3(three) days and after perusal of the Court, the Court Master shall keep the report in the file. The Annexures-1 and II are annexed herewith.