Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 2 (GAU)

Nilima Das v. State of Assam

2018-01-02

M.R.PATHAK, UJJAL BHUYAN

body2018
JUDGMENT : Ujjal Bhuyan, J. 1. Heard Ms. R. Choudhury, learned counsel for the appellant and Mr. S.P. Choudhury, learned Govt. Advocate, Assam for respondent Nos. 1 to 6. None has appeared for respondent Nos. 7 to 9 though served. This appeal is directed against the final order dated 28.9.2016 passed by the learned Single Judge dismissing the writ petition, being WP(C) 1466/2016, filed by the appellant as the writ petitioner seeking a direction to the respondents not to give effect to the select list dated 12.2.2016 for the post of Lot Mandal in the amalgamated establishment of Deputy Commissioner, Dhubri without considering the case of the petitioner as a women candidate. 2. It may be mentioned that petitioner had earlier approached this Court by filing WP(C) 2140/2015 seeking a direction to the respondent authority to fill up the vacancies in the post of Mandal (Lot Mandal) in the district of Dhubri by issuing advertisement etc. Petitioner had contended that she was interested and was eligible to be appointed as Mandal; despite vacancies being eligible, no steps were taken to initiate the recruitment process. On the basis of submissions made by the learned Govt. Advocate, Assam that there were 6 clear vacancies in the post of Mandal in the amalgamated establishment of Deputy Commissioner, Dhubri, a Single Bench of this Court vide order dated 15.5.2015 disposed of the writ petition by directing the Deputy Commissioner, Dhubri to take necessary steps in accordance with law to fill up the 6 available vacancies in the post of Mandal in his establishment and in the event of advertisement being issued for the 6 vacancies, it was open to the petitioner to participate in the selection process subject to fulfillment of the eligibility criteria. 3. Thereafter, Deputy Commissioner, Dhubri issued advertisement dated 25.1.2016 inviting applications from eligible candidates for filling up the 6 vacancies in the Grade-III post of Mandal. As per the break-up of the vacancies, 3 posts were reserved for Scheduled Tribe (Plains) [ST(P)] and 3 for the open category. The age requirement was minimum 18 years and maximum 38 years as on 1.1.2016. As per the terms and conditions No.2 of the advertisement, it was mentioned that reservation would be maintained as per provision. 4. It is stated that the petitioner being eligible had responded to the said advertisement and participated in the selection process as a woman candidate. 5. As per the terms and conditions No.2 of the advertisement, it was mentioned that reservation would be maintained as per provision. 4. It is stated that the petitioner being eligible had responded to the said advertisement and participated in the selection process as a woman candidate. 5. Following a selection process, Notification dated 12.2.2016 was issued from the office of Deputy Commissioner, Dhubri notifying the select list of 6 successful candidates as under; "Sri Monsur Ali Sheikh Sri Hakimuddin Sarkar Sri Pratap Chowdhury Sri Biraj Basumatary Sri Pungkha Brahma Sri Kamal Kr. Brahma" 6. Not finding her name in the select list, petitioner again approached this Court by filing WP(C) 1466/2016 assailing the legality and correctness of the Notification dated 12.2.2016 on the ground that there was excess reservation for ST(P) candidates and no reservation for woman candidate. By order dated 02.03.2016, notice was issued with the observation that selection and appointment of the six selected Mandals would be subject to the outcome of the writ petition, which was directed to be brought to the notice of the said six Mandals. 7. The writ petition was contested by the State respondents i.e. respondent Nos. 3 to 6 who filed a common affidavit through Sri Debojit Khanikar, Additional Deputy Commissioner, Dhubri. Stand taken in the affidavit was that 6 vacancies were advertised following an order of this Court dated 1.12.2014 passed in Contempt Case (C) No. 294/2014 (Md. Hakimuddin Sarkar & another v. Sri Kumud Ch. Kalita). Accordingly, all the 6 vacancies were filled up in terms of the aforesaid order. Selection Committee decided to regularise the services of three candidates from the ST(P) category to clear the backlog. Petitioner belongs to the General category and could not possibly come within the zone of consideration merely on the ground that she was a woman candidate or under the provisions of Section 4 of the Assam Women (Reservation of Vacancies in Services and Posts) Act, 2005 ('2005 Act' hereinafter). 8. After hearing the matter, learned Single Judge dismissed the writ petition vide the order dated 28.09.2016. Hence, this appeal. 9. Submissions made by learned counsel for the parties have been duly considered. 10. On a perusal of the order passed by the learned Single Judge dated 28.9.2016, we find that learned Single Judge had dismissed the writ petition primarily on two grounds. Hence, this appeal. 9. Submissions made by learned counsel for the parties have been duly considered. 10. On a perusal of the order passed by the learned Single Judge dated 28.9.2016, we find that learned Single Judge had dismissed the writ petition primarily on two grounds. Firstly, learned Single Judge had taken the view that the expression finding place in the terms and conditions No. 2 i.e., "reservation will be maintained as per provision" takes it colour from the break-up of vacancies given in the advertisement; no other interpretation of the said expression would be permissible. The break-up of vacancies as per the advertisement was 3 for ST(P) and 3 for open category. There can be no other reservation beyond the reservation provided in the advertisement. Secondly, appellant having taken part in the selection process pursuant to the advertisement dated 25.1.2016, she would be estopped from assailing the legality and correctness of the selection process. That apart appellant had not questioned the advertisement dated 25.1.2016 which provided the break-up of vacancies. 11. We have given our anxious consideration to the issues raised in this appeal. We take up the second issue first. It is true that a candidate who had consciously participated in the selection process would ordinarily be estopped from questioning the legality and correctness of the selection process after he finds himself to be unsuccessful. However, this proposition cannot be construed to be an inflexible rule without any exception. Instances of such exceptions have been illustrated by the Supreme Court and by this Court in a number of decisions. It is not necessary for us to delve deep into this aspect of the matter save and except to say that in this proceeding. appellant has not questioned the merit of the selection per se. What is being questioned is the non-application of the provision for reservation for women in the selection process. 12. The 2005 Act is a statutory enactment providing for reservation of vacancies in services and posts for women in the State of Assam. Section 4 of 2005 Act is the substantive provision. It says that at the commencement of this Act, 30% 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 women candidates. Section 4 of 2005 Act is the substantive provision. It says that at the commencement of this Act, 30% 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 women candidates. 'Establishment" has been defined under Section 2(b) of the 2005 Act to mean, amongst others, any office of the State Government. As per the first proviso, reservation for women shall be inclusive of reservation provided for the Scheduled Castes, Scheduled Tribes and Other Backward Classes etc. As per the second proviso, 30% reservation of the vacancies in respect of women of the remaining unreserved categories shall be available to the women of unreserved category only. 13. As per Section 6 of the 2005 Act, if any appointing authority makes any appointment in contravention of the provisions of Section 4, he shall be liable to be punished with fine which may extend to rupees one thousand and also liable to face disciplinary proceeding. 14. A conjoint reading of Sections 4 and 6 of the 2005 Act would go to show that provisions for providing reservation for women to the extent of 30% of the vacancies is of mandatory character, non-compliance of which would invite penal consequences, besides disciplinary action. That apart, use of the expression "shall" in both the provisions i.e. in Sections 4 and 6, is a clear pointer to the legislative intent behind Section 4. As per the preamble of the 2005 Act, same has been enacted to provide for reservation of vacancies in services and posts for women in the State of Assam considering the fact that women in the State of Assam are socially, educationally and economically backward and are not adequately represented in the services and posts within the State of Assam. Therefore, it was decided to provide for reservation of vacancies for women in services and posts in order to bring women at par with men. Thus, it is evident that the 2005 Act is a socially empowering piece of legislation and perforce, would call for strict compliance of the provisions contained therein. 15. The second aspect of the matter is that reservation for women as provided under the 2005 Act is horizontal reservation in contradistinction to vertical reservation. Thus, it is evident that the 2005 Act is a socially empowering piece of legislation and perforce, would call for strict compliance of the provisions contained therein. 15. The second aspect of the matter is that reservation for women as provided under the 2005 Act is horizontal reservation in contradistinction to vertical reservation. What is horizontal reservation and what is vertical reservation and the inter-play between the two forms of reservation have been elaborately gone into and explained by the Supreme Court in Indra Sawhney v. Union of India, AIR 1993 SC 477 and, thereafter, succinctly explained in the subsequent decision of Rajesh Kumar Daria v. Rajasthan Public Service Commission, (2007) 8 SCC 785 . This aspect of the matter has also been gone into in the recent decision of the Supreme Court in Union of India v. M. Selvakumar, (2017) 3 SCC 504 . 16. There is one more aspect which we would like to highlight Both the preamble of the 2005 Act and Section 4 thereof reveal that reservation contemplated under the 2005 Act is vacancy based and not post based. In this connection we may also refer to the provision for reservation for persons with disabilities as provided under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act 1995, more particularly, the provisions of Section 33 thereof. In Union of India v. National Federation of Blind, (2013) 10 SCC 772 , Supreme Court made it clear that reservation under the aforesaid Act is vacancy based and not post based. On due consideration, we are of the view that reservation for persons with disabilities and reservation for women both belong to the category of horizontal reservation and, therefore, such reservation would cut across all social category reservation and would be enforceable vacancy wise and not post wise. In other words, reservation for women as contemplated under the 2005 Act is vacancy based and not post based. 17. Adverting to the facts of the present case, there were 6 clear vacancies. Applying the 30% reservation principle it is seen that one of the vacancy out of the six would fulfill the requirement of 30% reservation for women. That being the position, view taken by the learned Single Judge holding that the appellant had disentitled herself from any relief by her participation in the selection would not be the correct position and accordingly, would require interference. That being the position, view taken by the learned Single Judge holding that the appellant had disentitled herself from any relief by her participation in the selection would not be the correct position and accordingly, would require interference. 18. Proceeding to the first ground on the basis of which learned Single Judge has dismissed the writ petition, we are of the view that having regard to the discussions made above, to confine the terms and conditions No. 2 that "reservation will be maintained as per provision" to the reservation of vacancies as per the advertisement excluding other statutorily mandated reservations would be taking a very constricted view of the matter, more so, when there is a statutory enactment providing for mandatory reservation for women. When the advertisement says that reservation would be maintained as per provision, it would not be just and proper to exclude such reservation statutorily provided from the purview of the selection process. 19. That being the position and having regard to the discussions made above, we allow the writ appeal by setting aside the order of the learned Single Judge dated 28.9.2016; and allow the writ petition by directing the establishment of Deputy Commissioner, Dhubri to consider one vacancy out of six notified vacancies as per advertisement dated 25.01.2016 to be earmarked for woman candidate as per the provision of Section 4 of the Assam Women (Reservation of Vacancies in Services and Posts) Act, 2005 and, thereafter, to fill up the said vacancy as per merit from the pool of women candidates. If in this process, any of the selected and appointed candidates, including respondent Nos. 7 to 9 has to be dislodged, he should be put on notice whereafter due procedure shall be followed. Let the above exercise shall be completed within a period of 3 (three) months from the date of receipt of a certified copy of this order. No costs.