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2019 DIGILAW 457 (GAU)

Moidul Islam v. State of Assam

2019-04-09

NELSON SAILO

body2019
JUDGMENT : 1. Heard Mr. N.N. Karmakar, learned counsel for the petitioner and Mr. N. Goswami, learned State Counsel appearing for all the respondents. 2. By filing this writ petition, the petitioner has challenged his non-selection and appointment in the post of Arms Branch Constable against the 332 number of posts meant for the district of Kamrup (Rural) as per the Advertisement published on 24.12.2014 (Annexure-1). 3. According to the petitioner, he and another candidate, namely, Ranjan Deka, scored a total of 58.5 marks in the selection. However, the petitioner being the younger candidate of the two, Ranjan Deka was appointed to the post in view of paragraphs Nos. 46 and 63 of the guidelines for the District Level Selection Committee (DLSC). The further contention of the petitioner is that out of 332 vacancies, only 316 vacancies were filled up and therefore, 16 vacancies meant for the concerned reserved category candidates, due to unavailability of such candidates, remains unfilled. 4. Mr. Karmakar, learned counsel for the petitioner submits that the posts cannot be kept unfilled and in case of non-availability of reserved category candidates, the posts advertised has to be filled up from the other categories and only the vacancies will be carried forward and not the posts. In this connection, he has drawn the attention of the Court to the Office Memorandum dated 20.12.2005 (Annexure-5) issued by the Deputy Secretary to the Govt. of Assam, Department of Welfare of Plain, Tribes and Backward Classes. By referring to the said Office Memorandum, the learned counsel submits that the 16 vacancies, which remain unfilled should have been filled up by the respondent authorities by considering the candidates from the unreserved category, such as, the writ petitioner. 5. For ready appreciation of the Office Memorandum, the relevant portion of the same is extracted here-in-below: "A Roster Register shall be maintained separately for each cadre in each establishment for giving effect to the Roster Registered above. The Roster is a running account of vacancies from year to year and shall be maintained accordingly. No gap shall be left in the roster in filling vacancies and if sufficient number of suitable candidates for filling up the reserved vacancies is not available from the reserved categories in particular year than such of the vacancies which remain unfilled would be available for others. There shall come into force with immediate effect. No gap shall be left in the roster in filling vacancies and if sufficient number of suitable candidates for filling up the reserved vacancies is not available from the reserved categories in particular year than such of the vacancies which remain unfilled would be available for others. There shall come into force with immediate effect. All the appointing authorities under the State Govt. and Public Section Undertakings will strictly follow the instruction and any difficulties/dispute arises should be promptly referred to WPT & BC Deptt." 6. From the above extract, it can be seen that when sufficient numbers of suitable candidates for filling up of reserved vacancies are not available, in a particular year, then the vacancies, which remain unfilled will be made available for others. It further indicates that the vacancies and not the posts shall be carried forward till the requisite percentage in that cadre is filled up. 7. However, contrary to the Office Memorandum dated 20.12.2005, the respondent No.3 in his affidavit-in-opposition dated 11.08.2017 has taken the following stand: "(3) That with regard to the statements made in paragraph 8, 10, 11 and 12 the deponent begs to state that though the petitioner has contended that the reserved vacancy which remains unfilled due to non-having suitable candidates should be made available for general candidates, the connection is not acceptable owning to the following reason. As per the policy of the Government, candidates belonging to a reserved category would be adjusted against the vacancy of concerning category only in a later period as and when fresh recruitment is held. It is also to state here that the candidates who satisfy the norms and criteria of unreserved category would be adjusted against the vacancy of unreserved category and not the reserved category, based on their merit." 8. Mr. M. Goswami, learned State counsel has also drawn the attention of the Court to the Rule 4 (6) of the Assam Scheduled Castes, Schedules Tribes (Reservation of Vacancies in Services and Posts) Rules, 1983. The same may be extracted below for ready reference: "4.(6) In case of non-availability of adequate number of candidates belonging to Scheduled Castes and Schedules Tribes (Plains) for the appointment to fill up all the reserved vacancies, the Appointing Authority shall arrange to re-advertise for such class of candidates only to fillup the unfilled reserved vacancies. The same may be extracted below for ready reference: "4.(6) In case of non-availability of adequate number of candidates belonging to Scheduled Castes and Schedules Tribes (Plains) for the appointment to fill up all the reserved vacancies, the Appointing Authority shall arrange to re-advertise for such class of candidates only to fillup the unfilled reserved vacancies. If in the Second advertisement also Schedules Castes, Schedules Tribes (Hills) and Schedules Tribes (Plains) are not available for the appointment to fillup all the reserved vacancies, the Appointing Authority with the prior concurrence of the Department for the Welfare of Plains Tribes and Backward Classes shall issue orders dereserving the vacancies giving due explanation for the dereservation, if it considers that the reserved vacancies cannot be left unfilled in the public interest. The reserved vacancies so dereserved shall then be filled up by appointing other candidates in order of preference as indicates in the list;" 9. From a perusal of the case projected by the petitioner and the conflicting stand taken by the respondents, it was felt necessary that the State respondents should come up with an affidavit-in-opposition clarifying the stand taken by them. 10. Consequently, the respondent No. 1 filed an affidavit on 10.01.2019, wherein, at paragraph No. 2 of the said affidavit, it has been contended that the Office Memorandum dated 20.12.2005 is not applicable to the instant case, as the Office Memorandum has been modified by a fresh Memorandum i.e. Office Memorandum dated 04.11.2013, which has been issued by the Commissioner & Secretary to the Govt. of Assam, Department for Welfare of Plain Tribes and Backward Classes. Mr. N. Goswami, learned State Counsel by referring to the said Office Memorandum submits that the unfilled vacancies meant for reserved category candidates, which was said to be available for other categories as per the Office Memorandum dated 20.12.2005 has now been omitted by the new Office Memorandum and therefore, the unfilled vacancies are only to be filled up by the same category candidates. He therefore submits that the claim of the petitioner to be considered against the unfilled reserved vacancy is not tenable. 11. To the submissions of the learned State Counsel, Mr. He therefore submits that the claim of the petitioner to be considered against the unfilled reserved vacancy is not tenable. 11. To the submissions of the learned State Counsel, Mr. N.N. Karmakar, the learned counsel for the petitioner submits that even if the relevant clause, which provides that the unfilled vacancies, meant for reserved candidates will be available to others, provided in the Notification dated 20.12.2005 is done away with by the Office Memorandum dated 04.11.2013, there can be no change to the fact that unfilled reserved vacancies will be carried forward, but the available post should be filled up. He submits that the Office Memorandum dated 04.11.2013 clearly provides that in absence of a qualified reserved candidate in a particular year, the vacancies shall be carried forward till the requisite percentage of reservation in that category is filled up. It is therefore clear that only vacancies will be carried forward but, the post should be filled up. The learned counsel in support of his submission further relies upon the decision of the Apex Court in the case of R.K. Sabharwal and Others v. State of Punjab and Others, reported in (1995) 2SCC 745. By referring to paragraph 6 and 10 of the said judgment of the Apex Court, the learned counsel submits that the Apex Court has clearly clarified the terms posts and vacancies. Further, the Apex Court has also made it clear that in absence of a candidate of reserved category at roster point, it would be open for the State Government to carry out the point in a just and fair manner. The same only shows that the vacancies of the unfilled reserved post will be carried forward whereas the post has to be filled up. He this submits that although the petitioner is from the General category, but since there were 16 unfilled vacancies meant for the Scheduled Tribe (Hills), the respondent authorities may be directed to accommodate the petitioner against one of the said posts. 12. Mr. N. Goswami, learned State Counsel during the course of hearing has produced a Communication dated 18.02.2019, addressed to him by the Chairman of the State Level Police Recruitment Board, which states that 332 posts of Constables, Armed Branch, were allotted against Kamrup (Rural) in pursuant to the advertisement published on 24.12.2013. 12. Mr. N. Goswami, learned State Counsel during the course of hearing has produced a Communication dated 18.02.2019, addressed to him by the Chairman of the State Level Police Recruitment Board, which states that 332 posts of Constables, Armed Branch, were allotted against Kamrup (Rural) in pursuant to the advertisement published on 24.12.2013. Out of the 332 posts, only 316 candidates were selected, leaving behind 16 posts i.e. 14 Male and 2 Female posts meant for the Scheduled Tribe (Hills) category, due to none availability of suitable candidates. The Communication further indicates that the left out 16 posts has been carried forward and the post has been advertised on 25.04.2018 along with other vacant post. 13. I have heard the submissions advanced by the learned counsels for the rival parties and I have also perused the materials available on record. 14. As may be noticed, the claim of the petitioner is that he should be considered against the 16 posts meant for ST(H) as there are no candidates available from that category. Office Memorandum dated 20.12.2015 (Annexure-5) provides that the Roster is a running amount of vacancies from the year to year and shall be maintained accordingly. No gap shall be left in the roster in filling vacancies and if sufficient number of suitable candidates for filling up the reserved vacancies is not available from the reserved categories in a particular year, than such of the vacancies which remain unfilled would be available for others. 15. However, the above provision has been omitted in the subsequent Office Memorandum dated 04.11.2013 (Annexure-A of the affidavit-in-opposition dated 10.01.2019). But what is still provided is that in absence of qualified reserved candidates in a particular year, the vacancies shall be carried forward till the requisite percentage of reservation in that cadre is filled up. 16. It may be apt to quote paragraph No. 10 of R.K. Sabharwal (Supra). "10. We may examine the likely result if the roster is permitted to operate in respect of the vacancies arising after the total posts in a cadre are filled. In a 100-point roster, 14 posts at various roster points are filled from amongst the Scheduled Caste/Scheduled Tribe candidates, 2 posts are filled from amongst the Backward Classes and the remaining 84 posts are filled from amongst the general category. In a 100-point roster, 14 posts at various roster points are filled from amongst the Scheduled Caste/Scheduled Tribe candidates, 2 posts are filled from amongst the Backward Classes and the remaining 84 posts are filled from amongst the general category. Suppose all the posts in a cadre consisting of 100 posts are filled in accordance with the roster by 31-12-1994. Thereafter in the year 1995, 25 general category persons (out of the 84) retire. Again in the year 1996, 25 more persons belonging to the general category retire. The position which would emerge would be that the Scheduled Castes and Backward Classes would claim 16% share out of the 50 vacancies. If 8 vacancies are given to them then in the cadre of 100 posts the reserve categories would be holding 24 posts thereby increasing the reservation from 16% to 24%. On the contrary, if the roster is permitted to operate till the total posts in a cadre are filled and thereafter the vacancies falling in the cadre are to be filled by the same category of persons whose retirement etc. caused the vacancies then the balance between the reserve category and the general category shall always be maintained. We make it clear that in the event of non-availability of a reserve candidate at the roster point it would be open to the State Government to carry forward the point in a just and fair manner." 17. As may be noticed from the above abstract more particularly, the concluding part, the Apex Court made it clear that in the event of non-availability of a reserved candidate at the roster point, it would be open to the State Government to carry forward the point in a just and fair manner. The communication dated 18.02.2019 of the Chairman, State Level Police Recruitment Board, Assam produced by Mr. N. Goswami, the learned State Counsel shows that the left out 16 posts were carried forward and advertised on 25.04.2018 along with other vacant posts. If that be so, I am of the considered view that the contentious issue raised by the petitioner will have to be decided in an appropriate proceeding and not in the present writ petition as no relief can be given to him. In other words, to decide the case on merit will only be to make a legal point which this Court would not like to do. In other words, to decide the case on merit will only be to make a legal point which this Court would not like to do. The writ petition is therefore dismissed leaving the parties to bear their own cost. 18. Communication dated 18.02.2019 produced by Mr. N. Goswami shall be kept on record and marked as X for identification.