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2024 DIGILAW 284 (CAL)

Rajina Meri v. Union of India

2024-02-06

HIRANMAY BHATTACHARYYA, MOUSHUMI BHATTACHARYA

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JUDGMENT : Hiranmay Bhattacharyya, J. 1. The judgment dated 29th November, 2023 passed by the Central Administrative Tribunal, Kolkata, Circuit Bench at Port Blair (for short “the Tribunal”) is under challenge in this application under Article 226 of the Constitution of India at the instance of the original applicant in OA 351/01913/2018/AN. 2. The original applicant/petitioner herein applied for the post of Craft Teacher under the Department of Education, Andaman & Nicobar Administration in response to a vacancy notice issued by the respondent Administration on April 20, 2015. Out of total 43 posts of teachers, 10 posts were for Tailoring and Embroidery Teachers. Out of the said 10 posts 3 posts were reserved for Other Backward Class category, 3 posts were reserved for Schedule Tribe category and 4 posts were under the unreserved (General) category. The petitioner belongs to general category. She qualified in the selection test and claims to have been placed in the third position in the unreserved general category in the provisional list published by the respondent Administration. Subsequently, the petitioner came to know that she was placed in the fourth position after revision of marks. The petitioner further allege that the respondent Administration has changed the breakup of vacancies by reducing the vacancy for Craft Instructor (Tailoring and Embroidery) in general category from four to three. 3. The petitioner alleged that the respondent authorities acted arbitrarily by extending the benefit of appointment in favour of Other Backward Class candidate by keeping the petitioner in the waiting list. 4. Being aggrieved by the decision of the respondent Administration to reduce the number of vacancies in the unreserved category from four to three resulting in her elimination from the list of selected candidates, the petitioner filed the original application before the learned Tribunal. 5. The respondent contested the original application by filing a Reply before the learned Tribunal. The stand of the respondent in the said reply was that the Personnel Department of the Andaman & Nicobar Administration examined the vacancy position and suggested that the vacancy notice dated 20th May, 2015 published by the Education Department is required to be modified in terms of paragraph nos. 31.5, 31.6 and 31.7 of DoP&T’s OM dated 25th June, 2010 and the vacancy position was modified accordingly. 31.5, 31.6 and 31.7 of DoP&T’s OM dated 25th June, 2010 and the vacancy position was modified accordingly. It was further stated in the said reply that one post each from the Tailoring and Embroidery, Bamboo and Cane Work, Computer Application and Wood Craft and Carpenter trade were allocated from unreserved category to Other Backward class. 6. In the rejoinder to the reply the petitioner contended that when the vacancy notice has been published the authorities do not have any right to change the vacancy position. It was also stated in the said rejoinder that clause 17 of the vacancy notice cannot be used by the authorities to change the vacancy position category wise. 7. The learned Tribunal, by the judgment and order dated 29th November, 2023, dismissed the Original Application upon holding that there is no legal infirmity in the action of the respondents in modifying the category wise breakup of vacancies subsequent to the publication of the vacancy notice. 8. Being aggrieved, the original applicant has approached this court. 9. Mrs. Nag, learned counsel appearing in support of the petition contended that the action of the respondent Administration in revising the vacancy position after issuance of the recruitment notice amounts to changing the rules of the game after commencement of the selection process which is impermissible. She further contended that the revision of vacancies is in violation of the constitutional provisions inasmuch as more than 50 percent of the posts were earmarked for reserved categories. She further contended that the number of vacancy of the Other Backward Class category was increased from three to four with the malafide intention and ulterior motive to favour some candidate or candidates. She further contended that the revised vacancy position is in violation of the decision of the Hon’ble Supreme Court in the case of Indra Sawhney vs. Union of India, reported at 1992 Supp. (3) SCC 217. She also placed reliance upon a decision of the Hon’ble Supreme Court in the case of State of U.P Vs. Sangam Nath Pandey and others, reported at 2011 (2) SCC 105 in support of her contention that backlog ST vacancies ought to have been filled up through special recruitment instead of intermingling with the vacancies of the year of recruitment. 10. Per contra Mr. Sangam Nath Pandey and others, reported at 2011 (2) SCC 105 in support of her contention that backlog ST vacancies ought to have been filled up through special recruitment instead of intermingling with the vacancies of the year of recruitment. 10. Per contra Mr. Shatadru Chakraborty, learned advocate representing the respondent Administration referred to clause 17 of the recruitment notice and contended that the number of vacancies indicated in the recruitment notice are only tentative and the Administration was well within its rights to change the vacancy position after commencement of the selection process. He further contended that the petitioner participated in the selection process being fully aware of such clause and, therefore, the petitioner is estopped from challenging the terms and condition for selection after being unsuccessful. In support of such contention he placed reliance upon a decision of the Hon’ble Supreme Court in the case of Tajvir Singh Sodhi and others vs. State of Jammu and Kashmir and others, reported at 2023 SCC OnLine SC 344. 11. In reply Mrs. Nag contended that clause 17 of the recruitment notice empowers the authority to increase or decrease the total number of vacancies but not to change the percentage of reservation. 12. Heard the learned advocates for the parties and perused the materials placed. Department of Education notified 43 vacancies for the post of Craft Instructor in different trades which was published in the local newspaper “The Daily Telegram” on April 20, 2015 inviting applications from eligible candidates for filling up the posts. The details of the breakup of vacancies as given in the said notification is extracted herein below: CRAFT INSTRUCTOR [No. Of vacancies:43(Gen:21,OBC:12, ST:10)] Details of break up of posts is as under: S.N Trade Gen OBC ST Total 1 Tailoring and Embroidery 4 3 3 10 2 Bamboo and Cane work 4 2 3 09 3 Music vocal/Instrumental 5 3 1 09** 4 Computer Application 5 3 3 11* 5 Wood Craft/Carpenter 3 1 - 04 Total 21 12 10 43 NB:- Candidates in the ratio of 1:10 will be called in each trade for appearing in skill/trade test. *Out of 11 posts under computer application trade, one post is reserved for locomotors disability or cerebral palsy (suitable for OL, BL, MW OA). ** Out of 09 posts under Music vocal/Instrumental trade, one post is reserved for Blind and Partially blind person category. 13. *Out of 11 posts under computer application trade, one post is reserved for locomotors disability or cerebral palsy (suitable for OL, BL, MW OA). ** Out of 09 posts under Music vocal/Instrumental trade, one post is reserved for Blind and Partially blind person category. 13. It is not in dispute that the name of the petitioner initially appeared at the serial number 3 under the general category for the post of Craft Instructor (Tailoring and Embroidery) within the provisional merit list. Subsequently, on account of revision of marks of the petitioner along with others, the petitioner was ousted from the selection list and she was placed in the waiting list of Tailoring and Embroidery under the general category. It is the case of the respondent Administration that the personnel department of Andaman & Nicobar Administration has examined the vacancy position and suggested that the vacancy notification dated 20th May, 2015 published by the Education Department is required to be modified in terms of para numbers 31.5, 31.6 and 31.7 of the DoP&T’s OM dated June 25, 2010 and vacancy position was modified thereby increasing the total number of vacancies of Other Backward Class category to sixteen and reducing the number of posts for general category to seventeen out of the total 43 posts. After going though the revised vacancy position as indicated in the Reply of the Administration before the Tribunal it appears that one post each from Tailoring and Embroidery, Bamboo and Cane Work, Computer Application and Wood Craft and Carpenter were allocated to Other Backward Class category from unreserved category. It is evident from the records that such revision of vacancy position took place after commencement of the selection process. 14. The question, therefore, arises is whether revision of vacancy category wise amounts to changing the rules of the game after commencement of the selection process. 15. The contention of the respondent Administration is that clause 17 of the recruitment notice empowers the Administration to revise the vacancy position after issuance of the recruitment notice. On the other hand it is the contention of the petitioner that such clause do not empower the Administration to change the percentage of reservation. In order to decide such issue clause 17 of the recruitment notification would be relevant for which the same is extracted hereinafter:- “17. On the other hand it is the contention of the petitioner that such clause do not empower the Administration to change the percentage of reservation. In order to decide such issue clause 17 of the recruitment notification would be relevant for which the same is extracted hereinafter:- “17. The number of vacancies indicated above are only tentative, subject to approval of the competent authority, the number of vacancies may increase/decrease at the time of preparation of panel for appointment and no claim or objection against it shall be entertained.” 16. Clause 17 of the recruitment notice stipulates that the number of vacancy as indicated are tentative and subject to the approval of the competent authority. After reading clause 17 this Court finds that the authorities have reserved its power to increase or decrease the number of vacancies at the time of preparation of panel for appointment. It also states that no claim or objection against such increase or decrease shall be entertained. The petitioner having participated in the selection process is estopped from challenging the power and/or authority of the Administration to increase/decrease the vacancy after commencement of the selection process. 17. Now the question arises as to whether the authorities in the garb of its power reserved under clause 17 of the vacancy notice revised the vacancies category wise arbitrarily. 18. It is the prerogative of the Administration to determine the number of vacancies in accordance with the relevant rules. It is the specific stand of the respondent that the vacancy position indicated in the Recruitment Notice published by the Education Department was required to be modified in terms of paragraphs 31.5, 31.6 and 31.7 of DoP&T’s OM dated 25th June, 2010. 19. The Hon’ble Supreme Court in the case of Anupal Singh and others vas State of Uttar Pradesh and others reported at (2020) 2 SCC 173 held that if only the wrong calculation in the number of vacancies in different categories are corrected in order to satisfy the percentage of reservation against various categories as per the provisions of the relevant statute, such revision cannot be said to be changing the rules or basis of selection as by doing so the eligibility criteria was not changed. 20. The larger issue would be whether such revision of vacancies category wise was in violation of the constitutional mandate and the relevant reservation policy governing such recruitment. 20. The larger issue would be whether such revision of vacancies category wise was in violation of the constitutional mandate and the relevant reservation policy governing such recruitment. From the revised vacancy position as indicated in the Reply of the respondents before the learned Tribunal, this Court prima facie finds that the posts reserved for Other Backward Class and Schedule Tribe category is in excess of 50% of the total vacancies sought to be filled up. 21. The Hon’ble Supreme Court of India in the case of G.Srinivas Rao-vs-Union of India and Others reported at (2011) 8 SCC 123 reiterated that the roster system ensures equitable treatment to both the general candidates and reserved candidates and by passing the same may result in violation of the right to equality under Article 14 and 16(1) of the Constitution. In the garb of revision, the right to equality guaranteed under the Constitution cannot be allowed to be violated. 22. The learned Tribunal while dismissing the Original Application only considered the issue whether the respondent Administration had the right to revise the vacancy position category wise. 23. One of the grounds for revision of vacancy position as cited in the Reply before the learned Tribunal was the Instructions issued vide Circular dated 16.09.2011. A copy of such circular was produced by Mrs. Nag. in course of hearing. It appears therefrom that 4% reduction in the reservation applicable to Schedule Tribe category would enure to the benefit of the unreserved category. However, the resultant effect of revision in the case on hand is otherwise as the vacancies under General category got reduced. Whether the said Instruction dated 16.06.2011 was followed in its true letter and spirit has also to be gone into. 24. Before arriving at a final decision whether the revised vacancies is in violation of constitutional and statutory provision and the law declared by the Hon’ble Supreme Court from time to time further enquiry into facts in the light of relevant rules governing such reservation is necessary. However, adjudication of such issues by this Court is not possible as the Original Application lacks the foundational basis in this regard and the materials on record are also not sufficient to arrive at a final decision. 25. Mrs. However, adjudication of such issues by this Court is not possible as the Original Application lacks the foundational basis in this regard and the materials on record are also not sufficient to arrive at a final decision. 25. Mrs. Nag, learned advocate for the petitioner would contend that the revision of vacancy position was done in violation of the constitutional provision as well as the law declared by the Hon’ble Supreme Court in this regard. 26. The vacancy position indicated in the Vacancy Notice was tentative and the same attained finality upon revision of the vacancies category wise. Admittedly, the revision of vacancy position took place in the midst of the selection process and at an advanced stage and the basis of such revision was disclosed for the first time in the Reply filed by the respondents before the learned Tribunal. 27. According to the petitioner, the revision of vacancies category wise is in violation of constitutional provisions. To the mind of this Court, the principle of estoppel, waiver and acquiescence cannot be applied to such a challenge in the facts of this case. 28. Therefore, the original applicant/ petitioner herein should be afforded an opportunity to challenge the basis of the revision of vacancy position as disclosed in the Reply of the respondent before the Tribunal by amending their pleadings before the Tribunal. 29. This Court finds substance in the submission of Mrs. Nag that the vacancies in General category could not have been reduced if the Instruction dated 16.09.2011 is applied in its true letter and spirit. This Court, therefore, feels that unless an interim protection is granted to the petitioner, the petitioner shall suffer irreparable loss and injury. 30. In Tajvir Singh Sodhi (supra) the issue was whether the courts while exercising the power of judicial review can enter into the merits of a selection process. The Hon’ble Supreme Court held that the Courts while exercising the power of judicial review cannot step into the shoes of the selection committee or assume the appellate role to examine whether the marks awarded by the selection committee in the viva voice are excessive and not corresponding to their performance to such test. The said decision being distinguishable on facts do not have any manner of application to the case on hand. 31. The said decision being distinguishable on facts do not have any manner of application to the case on hand. 31. In Sangam Nath Pandey (supra) a challenge was thrown to the action of the State in conducting a special recruitment meant exclusively for the reserved category at the instance of the General category candidates. The Hon’ble Supreme Court after taking into consideration Section 3 (2) of the relevant statute governing the reservation in the State of Uttar Pradesh held that it enables the State to carry forward the unfilled vacancies to be filled through special recruitment as a separate class of vacancy. 32. The relevant reservation policy/rules/ statute governing the instant recruitment has not been placed before this Court. Therefore, this Court refrains from making any comment as to the applicability or otherwise of the said reported decision at this stage. 33. For all the reasons as aforesaid, this Court is of the considered view that the impugned judgment and order calls for interference. 34. Accordingly, the impugned judgment and order of the learned Tribunal dated 29.11.2023 is set aside and the Original Application No.351/01913/2018/AN is restored to the file of the learned Tribunal. Liberty is granted to the Original Applicant to amend her pleadings before the learned Tribunal within a period of two weeks from the receipt of the server copy of this order. The Tribunal shall decide the Original Application after giving an opportunity to the respondents to controvert the amended original application, if any, and after hearing the parties and by passing a reasoned order as expeditiously as possible but positively within a period of eight weeks from the date of communication of this order. 35. The respondent authorities are directed to keep one post in the Tailoring and Embroidery trade vacant till ten weeks from the date of passing of this judgment or until further orders whichever is earlier. It will be open to the petitioner to pray for extension of this interim order or for fresh interim order before the Tribunal, if the occasion so arises. 36. With the aforesaid directions, the writ petition stands allowed. 37. It is, however, made clear that such liberty to amend the original application shall not be extended to challenge the power of the authority to revise the vacancy in the midst of the selection process as such issue has been put at rest by this Court. 36. With the aforesaid directions, the writ petition stands allowed. 37. It is, however, made clear that such liberty to amend the original application shall not be extended to challenge the power of the authority to revise the vacancy in the midst of the selection process as such issue has been put at rest by this Court. I agree, Moushumi Bhattacharya, J.