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2018 DIGILAW 1229 (GAU)

SMTI DHARITRI KALITA v. STATE OF ASSAM

2018-08-20

L.S.JAMIR

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JUDGMENT : L.S. JAMIR, J. 1. The Deputy Commissioner, Kamrup issued an advertisement under No.Janasanyog/1711/13 which was published on 18-02-2014 inviting candidates for filling up of 8 posts of Junior Accounts Assistant (JAA in short) in the Office of the Treasury Establishment of Kamrup District. Amongst the 8 posts advertised, 1 post each was reserved for unreserved category, Physically Handicapped (Lower Vision), S.T (P), S.T (H), and S.C and 3 posts were reserved for OBC/MOBC. The advertisement further provides that the appointments shall be made after keeping the due consideration on reservation of vacancies S.C, S.T (P), S.T (H), OBC/MOBC and women as per Government guidelines. The petitioner being qualified applied for the post in the prescribed format with the bonafide belief that the respondents will follow the reservation meant for women in filling up the post in terms of Clause 6 of the advertisement and the provisions of the Assam Women (Reservation of Vacancies in Services and Posts) Act, 2005 ( the Act of 2005 in short) and the rules framed there under. The petitioner appeared in the selection process and was successful. Further, the petitioner was the only woman candidate amongst the short listed general category candidate pursuant to the selection. A Selection Committee meeting under the Chairmanship of the Deputy Commissioner, Kamrup was convened on 24-06- 2015 and the Selection Board on the basis of total marks obtained in the written test, computer test and viva-voce selected the respondent No.4 in order of merit against the one vacant post kept for unreserved candidates. Thereafter, a Notification dated 25-06-2015 was issued by the Deputy Commissioner-cum-Chairman of the Selection Board, Kamrup, Amingaon declaring the candidates who were provisionally selected for appointment subject to receipt of satisfactory Police Verification Report and Medical Fitness. The present writ petition has been filed by the petitioner challenging the appointment of the respondent No.4 on the ground that the respondents had failed to consider the case of the petitioner while filling up the post of JAA under women reservation as provided under the Act of 2005 and the rules framed there under. 2. Heard Mr. K.N. Choudhury, learned senior counsel appearing for the petitioner. Also heard Mr. S.K. Medhi, learned Additional Advocate General, Assam appearing for the respondent Nos. 1 and 2 and Mr. U.K. Nair, learned senior counsel appearing for the respondent No.4. 3. Mr. 2. Heard Mr. K.N. Choudhury, learned senior counsel appearing for the petitioner. Also heard Mr. S.K. Medhi, learned Additional Advocate General, Assam appearing for the respondent Nos. 1 and 2 and Mr. U.K. Nair, learned senior counsel appearing for the respondent No.4. 3. Mr. K.N. Choudhury, learned senior counsel for the petitioner submits that in terms of the advertisement, the petitioner being qualified, applied for the post of JAA. He submits that Clause 6 of the advertisement clearly specified that appointments shall be made having due regard to reservation of vacancies, i.e S.C, S.T (P), S.T. (H), OBC/MOBC and women as per the Government guidelines. Pursuant to the submission of her application, the Chairman of the Selection Board by a letter dated 19-09-2014, notified that the written test for the posts will be held on 19-10-2014. The petitioner was also allotted Roll No. 325. The petitioner was successful in the written test and accordingly, she was called for appearing in the Viva-Voce and Computer Test by a letter dated 11-06-2015. The petitioner appeared in the Viva-Voce on 24-06- 2015 and having done exceptionally well and being the only women candidate, was expecting to be appointed as a JAA. Thereafter, the Selection Board held its meeting on 24-06-2015. However, the respondent No.4 was selected against the one vacant post kept for unreserved category. The petitioner after coming to learn about the appointment of respondent No.4 as JAA against the vacancy earmarked for general category candidates also came to learn that the appointment of the respondent No.4 has been made without following the provisions of the Act of 2005 and the rules framed there under as well as the stipulation made in Clause 6 of the advertisement published on 18-02-2014. It is submitted that being aggrieved on not being selected, one of the petitioner's relatives made an application under the RTI on 29-07-2015 seeking information in respect of the entire selection process which was held pursuant to the advertisement that was published on 18-02-2014. The respondents furnished information on 11-09-2015 in respect of the selection process and she came across the copy of the final evaluation sheet of the candidates in respect of the written test, oral and computer test for the said post. It is submitted that 12 candidates were declared qualified including the petitioner in the written test. The respondents furnished information on 11-09-2015 in respect of the selection process and she came across the copy of the final evaluation sheet of the candidates in respect of the written test, oral and computer test for the said post. It is submitted that 12 candidates were declared qualified including the petitioner in the written test. In the general category, four candidates qualified and the petitioner was the only woman candidate amongst the four general category candidates. It is also submitted that on further inquiry, the petitioner came to learn that the cadre strength of JAA in Kamrup District is 18 out of which, 9 posts were already filled up on earlier occasions. Further, pursuant to the instant selection process, the respondents had appointed 6 incumbents including the respondent No.4 by the Notification dated 25-06-2015 and therefore, at present, there are 15 incumbents serving in the said cadre. However, not a single woman candidate has been appointed in these 15 numbers of posts by the State respondents. 4. Learned senior counsel for the petitioner submits that the Act of 2005 was enacted by the State respondents which came into force with effect from 18-05-2005. Section 4 of the Act of 2005 provides for 30% reservation for women in vacancies in respect of all appointments to the services and posts in the establishments which are to be filled up by way of direct recruitment. It is also submitted that Section 6 of the Act of 2005 provides for penalty to the appointing authority that makes appointment in contravention of the provision of Section 4 of the Act of 2005. It is also submitted that pursuant to the enactment of Act of 2005, the Assam Women (Reservation of Vacancies in Services and Posts) Rules, 2005 (the Rules of 2005 in short) was enacted which came into force with effect from 06-12-2005. Rule 3 (3) of the Rules of 2005 provides that women candidates shall be appointed on 30 % basis as provided in the schedule appended to the Rules of 2005. 5. Learned senior counsel for the petitioner submits that the Assam Treasury (Establishment) Service Rules, 1993 ( the Rules of 1993 in short) provides that 80% of the posts shall be filled up by way of direct recruitment and 20 % posts by way of promotion. 5. Learned senior counsel for the petitioner submits that the Assam Treasury (Establishment) Service Rules, 1993 ( the Rules of 1993 in short) provides that 80% of the posts shall be filled up by way of direct recruitment and 20 % posts by way of promotion. Therefore, out of 18 numbers of posts, 14 posts shall be filled up by way of direct recruitment and amongst the said 14 posts, 7 numbers of posts are reserved for candidates belonging to the general category and out of these 7 numbers of posts, 2 posts are reserved for candidates belonging to the women category to be filled up by way of direct recruitment. Therefore, the action of the respondents in appointing the respondent No.4 to the post of JAA under the general category without taking into consideration the Act of 2005 and the rules framed there under as well as the Rules of 1993 has vitiated the impugned Notification dated 25-06-2015. He also submits that there was a categorical provision in the advertisement that was advertised on 18-02-2014 that there shall be reservation for women as per the Government guidelines. However, the provision of the advertisement has also been violated by the respondents by making appointment of the respondent No.4 to the post of JAA. Therefore, when the State Government has enacted the Act of 2005 and the rules framed there under, the respondents are bound to follow the reservation made therein for women while making appointment. In the present case, as no women candidates has been appointed in the cadre strength of JAA, the respondents cannot be allowed to violate the provision of the Act of 2005 and the rules framed there under as well as the Rules of 1993 and therefore, the appointment of the respondent No.4 should be set aside and a direction be issued to the respondents to appoint the petitioner under the women reservation quota in place of the respondent No.4. 6. Mr. S.K. Medhi, learned Additional Advocate General, Assam appearing on behalf of the State respondents submits that there is no violation of the Act of 2005 or the rules framed there under inasmuch as, the respondent No.4 had scored more marks than the petitioner and therefore there is no illegality in the appointment of the respondent No4. 6. Mr. S.K. Medhi, learned Additional Advocate General, Assam appearing on behalf of the State respondents submits that there is no violation of the Act of 2005 or the rules framed there under inasmuch as, the respondent No.4 had scored more marks than the petitioner and therefore there is no illegality in the appointment of the respondent No4. He submits that in the selection process, the consideration and the application of the Act of 2005 was made. However, no women candidates were found suitable and accordingly not selected. The petitioner appeared in the vivavoce and the computer test but she could not be selected as only one post was advertised for the general unreserved category. It is submitted that women reservation being a special category reservation cuts across even the general (unreserved) category. However, such provisions has to be made in consonance with the principles laid down by the Supreme Court that the proper and correct course is to first fill up the open competition quota on the basis of merit and then to fill up each of the social reservation quotas and the third step would be to find out how many candidates belonging to special reservation have been selected on the above basis. In the instant case, as the respondent No.4 was selected on the basis of merit against one vacant post of JAA, the question of 30% reservation for women did not arise at all. He also submits that the Treasury at Guwahati was bifurcated by the Government letter dated 13-12-2012 into two Treasuries namely, Kamrup (M) Treasury and Kamrup District Treasury, Amingaon. By the said exercise, the earlier staffs of the Treasury were also bifurcated and posted in both the treasuries. The Rangia Sub-Treasury also falls under the Kamrup District Treasury establishment and that 9 posts of Rangia Sub- Treasury are within the total strength of 18 of the Kamrup District Treasury and these posts were not filled up by the Kamrup District Treasury. After the bifurcation, the Kamrup District Treasury, for the first time, had given the advertisement for filling up of 8 posts where there is one post in the unreserved general category. Therefore, the respondent No.4 who stood first in the written test and interview was accordingly appointed on the basis of merit. As such, there has been no violation of the Act of 2005 or the rules framed there under. Therefore, the respondent No.4 who stood first in the written test and interview was accordingly appointed on the basis of merit. As such, there has been no violation of the Act of 2005 or the rules framed there under. In that view of the matter, as the respondent No. 4 has been selected on the basis of merit, the petitioner cannot challenge the appointment of the respondent No.4 after having participated in the selection process wherein, the petitioner could not qualify. It is submitted that the respondent No.4 has been working for the past more than two years and therefore, to dislodge the respondent No.4 who was appointed on the basis of merit would be highly illegal at this stage. In that view of the matter, he submits that there is no merit in the writ petition and the same deserves to be dismissed. 7. Mr. U.K Nair, learned senior counsel appearing for the respondent No.4 while endorsing the submissions made by the learned Additional Advocate General, Assam submits that out of total 8 posts advertised, one post is kept for the general unreserved category and if the said lone post is also kept reserved for women than nothing would remain for consideration on merit basis thereby, depriving the most meritorious candidate eligible for the post which is against the spirit and mandate of the constitution. The respondent No.4 had scored the highest marks in the entire selection process and therefore, the respondents had rightly appointed the respondent No.4 to the lone post under unreserved general category. It is also submitted that after serving for more than two years, if the respondent No. 4 is dislodged at this stage by applying the reservation quota for women as provided under the Act of 2005, more particularly, when the respondent No.4 has been selected on the basis of merit, the same would not be in the interest of justice and therefore, the respondent No. 4 may not be dialoged at this stage and instead a direction be issued to the respondents to consider the case of the petitioner to any other vacancies that may be available. 8. I have considered the submissions forwarded by the learned counsel for the parties. 9. Section 4 of the Act of 2005 reads as under :- "4. 8. I have considered the submissions forwarded by the learned counsel for the parties. 9. Section 4 of the Act of 2005 reads as under :- "4. Reservation for women in vacancies to be filled up by direct recruitment- At the commencement of this Act, 30 percent of the vacancies in respect of all appointments to the services and posts in the establishment which are to be filled up by direct recruitment shall be reserved for the women candidates : Provided that the aforesaid reservation shall be inclusive of the reservation provided statutorily or otherwise of the Scheduled Castes, Scheduled Tribes (Plains), Scheduled Tribes (Hills) or Backward Classes, More Other Backward Classes and persons with disabilities within the respective reserved category. Provided further that 30 percent reservation of the vacancies in respect of the Women for the remaining unreserved Category of candidates shall be available to the Women of unreserved category only." 10. The advertisement which was published on 18-02-2014 clearly provides that amongst the 8 posts of JAA that was advertised, one post was meant for the unreserved category. Further, Clause 6 of the advertisement provides that appointments shall be made after keeping due consideration on reservation of vacancies S.C, S.T (P), S.T. (H), OBC/MOBC and Women as per Government guidelines. There is no dispute at the bar that the Act of 2005 came into force with effect from 18-05-2005 and that the Rules of 2005 came into force with effect from 16-12-2005. Therefore, the Act of 2005 and the Rules of 2005 were already in operation when the advertisement advertising the 8 posts of JAA was published on 18-02-2014. Therefore, when the Selection Board held its meeting on 24-06-2014 such reservation policy for women of the State of Assam should have been taken into consideration. Rule 5 of the Rules of 1993 provides amongst others that 80% of posts shall be filled up by way of direct recruitment and 20% of posts by way of promotion. Therefore, taking into consideration Section 5 of the Rules of 1993 as well as the fact that there are 18 numbers of posts in the Treasury Establishment of Kamrup District, 14 posts shall be filled up by way of direct recruitment. Therefore, taking into consideration Section 5 of the Rules of 1993 as well as the fact that there are 18 numbers of posts in the Treasury Establishment of Kamrup District, 14 posts shall be filled up by way of direct recruitment. Further, from amongst the 14 posts, 7 posts are reserved for candidates belonging to general category and out of which two posts are reserved for women candidates under the Act of 2005 and the rules framed there under. The fact that no women candidates has been appointed till date has also been considered by this Court. 11. XXX XXX XXX 12. In the case of R.K. Sabharwal and Others-vs-State of Punjab and Others, (1995) 2 SCC 745 , the Hon'ble Supreme Court has held as under:- "6. The expressions 'posts' and 'vacancies' often used in the executive instructions providing for reservations, are rather problematical. The word 'post' means an appointment, job, office or employment. A position to which a person is appointed. 'Vacancy' means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the 'vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadres. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of 'vacancy' has no relevance in operating the percentage of reservation." 13. Coming to the case in hand, while not losing sight of the fact that no women candidates has been appointed in the Treasury Establishment of Kamrup District, the advertisement which was published on 18-02-2014 clearly indicates that one post is meant for the unreserved category and that Clause 6 of the advertisement also stipulates that there shall be reservation for women as per the Government guidelines, this Court is of the considered opinion that the Selection Board while considering the matter had totally failed to take into consideration the policy of the Government of Assam to provide for 30% reservation for women candidates while making appointments to the establishments under the Government of Assam. There is no doubt that the respondent No.4 has served for more than two years at this stage. There is no doubt that the respondent No.4 has served for more than two years at this stage. However, the enactment of the Government of Assam i.e the Act of 2005 also cannot be given a total go by. As the Act of 2005 was not taken into consideration by the Selection Board, this Court is of the considered opinion that the reservation policy with regard to women will have to be applied in the present case. Accordingly, the respondents are directed to appoint the petitioner to the post of JAA under the unreserved category which has been filled up by the respondent No.4. 14. Considering that the respondent No.4 has been serving for the post more than two years, a direction is also issued to the respondents to consider the case of the respondent No.4 to any other vacancy that may be available. However, such appointment shall be made only in accordance with law. 15. In view of the discussions made herein above, the Notification dated 25-06-2015 insofar as the appointment of the respondent No.4 to the lone post of JAA under the unreserved category is set aide and quashed. 16. Writ petition is accordingly allowed. 17. No costs.