High Court · 2012

By means of this writ petition, the petitioner has challenged the select list dated 5.2.2010 and 18.2.2010 published by the Assam Public Service Commiss ion (’APSC’ for short) so far as the same include the names of respondent Nos.6 to 16.

2. The petitioner belonging to OBC category had responded to the employment notice dated 10.8.2006 published by the APSC for various posts under the Assam Civil Service (’ACS’ for short) and the allied services.

3. In due course, the selection was conducted and the name of the petitione r was included in the select list as OBC category candidate. The select list was called in question by filing certain writ petitions being WP(C) Nos.2755, 3288, 3433 and 3590 of 2009. The writ petitions were disposed of vide judgment and or der dated 3.9.2009 which is reported in 2009 (4) GLT 648 (Ratul Kr. Das and Othe rs -vs- State of Assam and Others). In the said proceeding, the court was concer ned with the procedure adopted in drawing the select list and also the issues re lating to horizontal and vertical reservations.

4. In the aforesaid proceeding, the APSC had filed an affidavit-in-oppositi on and in para 9 of the said affidavit, it was stated that the present petitione r whose merit position was at Sl. No.16 and was offered the post of Inspector of Taxes alongwith three others were erroneously included instead of four other ca ndidates, who had secured better marks than the said four candidates. It will be pertinent to mention here that the petitioner has secured 828 marks against 891 , 854, 853 and 881 secured by them. Thus, it was the stand of the APSC that in c onsideration of the marks secured by the said candidates, petitioner was not wit hin the zone of consideration for inclusion in the select list.

5. All the writ petitions were disposed of with the direction to draw the s elect list afresh consistently with the observations made in the said judgment a nd order. Pursuant to the aforesaid judgment and order, the APSC has redrawn the s 6. elect list and published on 5.4.2010. In the said select list, the name of the p etitioner does not figure. The same is in the tune with the stand of the APSC in the earlier proceeding. In the earlier select list the name of the petitioner c ame to be included as OBC category candidate due to inadvertent mistake, inasmuc h as, candidates securing higher/better marks than her were omitted from such in clusion. This aspect of the matter has been noted above. 7. The two pleas raised by the petitioner in this writ petition are that th e OBC category candidates who had excelled in merit at par with the general cand idates ought to have been included in the select list as general category candid ate instead of including them in the category of OBC. According to the petitione r, if the same was done, her name would have been included as OBC category (woma n) candidate in the select list. In this connection, the petitioner has also emp hasized on reservation for woman. The second plea on which the petitioner has st ructured the writ petition is that even if the position as reflected in the sele ct list is accepted then also with the exclusion of some selected candidates as OBC (woman) candidates because of their non-joining in the posts, the case of th e petitioner is required to be considered against one of such posts.

8. We have heard Mr. S Dutta, learned counsel appearing for the petitioner. Also heard Ms. S Sarma, learned State counsel for respondent No.1 as well as Mr . C Baruah, learned Standing Counsel, APSC for respondent Nos.2 to 5, Mr. K Sing ha, learned counsel for respondent No.11, Mr. J Patowary, learned counsel for re spondent No.12, Mr. TJ Mahanta, learned counsel for respondent No.14 and Mr. PP Baruah, learned counsel for respondent No.15.

9. So far as the first plea of the petitioner is concerned, learned counsel for the respondents have drawn our attention to the judgment of this Court in W P(C) No.1040/2010 (Alok Kr. Pandit -vs- State of Assam and Ors.) (dismissed on 1 7.8.2010). In the said case, the petitioner as OBC candidate securing 840 marks had raised the similar plea as that of the present petitioner. Rejecting the sai d plea, the Division Bench of this Court held that even if a reserved category c andidate finds place in the select list at par with the general category candida te because of the marks secured by him, but in so far as the choice of the post is concerned, he is entitled to exercise his right of reservation.

10. In the instant case also the case of the petitioner as noted above is th at the OBC category candidate both male and female who could succeed as general category candidate because of the marks secured by them could not have exercised their option for particular post as reserved category candidate. In this connec tion, Mr. Dutta, learned counsel for the petitioner has placed reliance on the d ecision of the Apex Court in Union of India -vs- Ramesh Ram reported in (2009) 6 SCC 619 and submitted that such relaxation in respect of choice of post is avai lable only if the rules provide for the same. Mr. Dutta has also submitted that in the said decision, such relaxation was held to be available to the selectees and reserved category candidates in view of the provisions made in Rule 16 of th e Central Civil Service Examination Rules. We have carefully perused the said judgment in addition to the judgment 11. in Alok Kr. Pandit (supra). The Apex Court has laid down the principle that a re served category candidate although selected on merit in open category but he can seek appointment on reserved vacancy if the same was to his advantage. The said observation has been made in reference to some earlier decisions of the Apex Co urt including the decision in Union of India and Another -vs- Satya Prakash and Others reported in (2006) 4 SCC 550.

12. We cannot persuade ourselves to accept the submission made by Mr. Dutta, learned counsel for the petitioner that the candidates belonging to reserved ca tegory having excelled in the merit so as to include in the select list as gener al category candidates are precluded from exercising the right as reserved categ ory candidate in respect of choice of post. In the instant case, we are concerne d with the selection pertaining to ACS and allied services. If a reserved catego ry candidate excelling on merit is deprived of reservation, the same will be ant e thesis of the principles involved in respect of the reservation to reserved ca tegory candidate.

13. Coming to the second plea that even if the select list is accepted, but having regard to the fact that some of the selected OBC (Woman) candidates have not joined the posts offered to them, the petitioner is entitled to get appointm ent against any one of the said posts, this Court by order dated 3.2.2012 desire d the respondents to place on record as to whether the particular three lady can didates having higher rank on merit than the petitioner had joined their posts. The said exercise was directed to be carried out with a view to find out as to w hether the petitioner can be accommodated against one of the said three posts al though in the mean time, the candidates ranking higher in merit position have be en appointed. The said order was passed in view of the fact that the said three candidates at the time of passing the order dated 3.2.2010 had not joined the po sts offered to them.

14. In response to the said order dated 3.2.2012, Mr. C Baruah, learned Stan ding Counsel, APSC has produced the letter dated 27.2.2012 addressed to the Gove rnment of Assam in the Personnel (A) Department by the Secretary, APSC. In the s aid letter details of posting in reference to merit positions obtained by differ ent candidates have been given. In the additional affidavit, the petitioner in para 6 has made the follo That as of now altogether 9 (nine) candidates including 4 (four) female

15. wing statements: (cid:28)6. candidates, who had made it to the Select List dated 05.02.2010, have not joined service. The female candidates are: (a) Chitrarani Saikia (an OBC Candidate), ( b) Pallavi Medhi (an OBC Candidate), (c) Banashree Sharma (a General/Open Catego ry Candidate) and (d) Barnali Deka (a General/Open Category Candidate). In parti cular, Chitrarani Saikia has joined Assam Judicial Service as a magistrate. Resu ltantly, there have been 4 (four) vacancies available to woman candidate. In the circumstances, I would make it to the list of selected candidates even if the a ppointment of the private respondents is not disturbed/interfered with by this H on’ble Court. Therefore, the respondent APSC can very well consider my candidatu re as against the available vacancies. (cid:29)

16. In response to the above and more particularly the query made in the afo resaid order dated 3.2.2012, the letter dated 27.2.2012 has revealed that Smti. Chitrarani Saikia, who belongs to OBC category had secured 889 marks. According to the said letter, there are many OBC category candidates in between the petiti oner and Smti. Chitrarani Saikia. However, Mr. Dutta, learned counsel for the pe titioner has submitted that there are very few female OBC category candidates in between the petitioner and Smit. Chitrarani Saikia and accordingly, depending u pon the exercise directed to be carried out by the said order dated 3.2.2012, th e petitioner can be accommodated.

17. The letter dated 27.2.2012 has reflected the vacancy position and the ca ndidates appointed in different departments including Finance, Corporation and H ome. In the said departments, the candidates who have been appointed have secure d better marks than the petitioner as OBC category candidate. Mr. C Baruah, lear ned Standing Counsel, APSC has also submitted that the petitioner cannot claim a ny post under the category of OBC (woman) but if at all is required to be consid ered, such consideration will have to be as OBC category candidate only which wi ll be inclusive of both male and female.

18. The fact of the matter is that name of the petitioner has not been inclu ded in the select list. The fact of the matter is also that some other candidate s securing better marks than her have also not been included in the select list. The exercise which was directed to be carried out by the aforesaid order dated 3.2.2012 cannot confine to the case of the petitioner alone, if the other candid ates above her, can be accommodated in reference to the said 3 (three) candidate s, who have been offered appointment. Merely because the petitioner has approach ed this Court, she cannot claim appointment to the exclusion of the candidates w hose merit positions are higher than her.

19. In view of the above, this writ petition is disposed of by not interferi ng with the inclusion of the private respondents in the select list. However, it is hereby provided that the APSC may carry out the fresh exercise to find out a s to whether depending upon the marks secured by the petitioner, she can be acco mmodated as OBC category candidate. However, such exercise will not be to the ex clusion of the candidates who have secured better marks than her.

20. to costs. Interim order passed earlier stands vacated. There shall be no order as