High Court · 2012

This appeal has been preferred against order of learned Single Judge dis missing the writ petition challenging appointment of private respondents as Grad e-IV employee in the establishment of District Deputy Registrar of Cooperative S ocieties, Dhubri. Earlier, the appellants were given appointment to the said pos t without following the procedure of law. Their appointments were set aside vide order of this Court dated 8.2.2010 in W.P.(C) No.4339 of 2007 filed by one Shri Tainur Rahman Khan. The said order was affirmed by a Division Bench on 26.8.201 0. Thereafter, an advertisement was issued and the private respondents were give n appointment. All the seven vacancies were reserved as backlog vacancies. The appellants challenged the appointment against backlog vacancies on t 2. he ground that all the seven vacancies could not be reserved. The writ petition was dismissed. On appeal, the Division Bench held that since the issue raised ha d not been discussed in the order of learned Single Judge, the matter required f resh examination. After due consideration, learned Single Judge upheld the appoi ntments holding that reservation was justified as the number of vacancies was as per the roster point. It was held :- (cid:28)17. Independent of the above, I have verified the records produced by Dr. B. Ahmed, learned Standing Counsel, Co-operation Department. On perusal of the sai d records, it is found that the particular committee constituted to process the selection in its meeting held on 29.3.2010 identified the back-log and reserved vacancies to be filled up by reserved category candidates. Records have further revealed that the total cadre strength of PSP is 14 and that of Peon/Night Chowk idar is 15. As per the provisions of Assam SC and ST (Reservation of Vacancies i n Service and Posts) Act, 1978 and the Rules framed there under in 1983, there i s provision for reservation of vacancies as follows: SC-7% ST(P) 10% and ST(H) 5%

18. As submitted, there is also reservation provision for OBC category candi dates. On perusal of the records, it appears that out of the 2 posts, which have been filled up as back-log in the cadre of PSP, one post has been filled up by ST(P) category candidate and the remaining by SC category candidates. It appears that roster point pertaining to ST(P) and ST (H) (roster point 1 and 3 respecti vely) had been carried forward inasmuch as the vacancy against the said roster p oints had been filled up by 2 un-reserved category candidates.

19. Similarly, in the cadre of Grade-IV (Peon/Night Chowkidar) as against to tal cadre strength of 15, reserved vacancies against roster points No. 3, 7 and 11 had been filled up by OBC, Un-reserved and OBC category candidates respective ly, although the said roster points were meant for SC, ST(H) and ST(P). To meet the back-log, the respondents pursuant to the impugned selection have filled up the vacancies by carrying forward the back-logs and appointing SC, ST(H) and ST( P) category candidates. Remaining two posts have been filled up by OBC category candidates as per the roster points.

20. I see no reason to interfere with such a procedure adopted by the offici al respondents. As regards the subsequent selection questioned in the second wri t petition, the respondents have filled up the vacancies against the roster poin t i.e. roster points No. 1 and 3 meant for ST(P) and SC, which were earlier fill ed up by un-reserved category candidates. As per the records, the reserved categ ory candidates, who have been appointed pursuant to the first and second adverti sement are all against clear the back-log vacancies, I see no infirmity in the p rocedure adopted by the respondents towards clearing the back-logs.

21. In view of the above, no relief can be granted to the petitioners. Howev er, in the counter affidavit filed by the respondents, it has been stated that s ince the petitioners have gained experience by working under the department, in case of future advertisement, the respondents will consider their cases by givin g due weightage to their past experience. It is expected that the respondents wh ile making appointment in future will bear in mind the long experience of the pe titioners and the fact that in search of appointment and regularization they hav e lost prime of their youths. (cid:29)

3. We have heard learned counsel for the parties.

4. Learned counsel for the appellants submitted that the vacancies had not been worked out yearwise as per mandate of law laid down by the Hon’ble Supreme Court in State of U.P. and ors. Vs. Sangam Nath Pandey and others, (2011) 2 SCC 105. Learned counsel for the State submitted that the vacancies have been dul 5. y worked out yearwise. In this regard, reliance has been placed on paragraphs 13 and 21 of the affidavit-in-opposition filed by the District Deputy Registrar of Cooperative Societies, Dhubri, as follows :- That with regard to the statements made in paragraph 11 of the writ peti (cid:28)13. tion, the deponent begs to state that at relevant point of time of publishing ad vertisement on 01.04.2010, the office of the deponent had no knowledge about the pendency of writ appeal filed by the petitioners. However the Hon’ble High Cour t in the interim was pleased to pass an order dated 31.3.2010 in the said writ a ppeal with a direction not to make final appointment without leave of the Hon’bl e High Court. As regards the contention of 100% reservation made in paragraph 11 of the instant writ petition, the deponent begs to state that the connection is not based on fact. As stated above the vacant posts as per Roster points falls under reserved category as backlog vacancy in two separate Roster points meant f or Peon and PSP and as the earlier appointments made to the petitioners were in violation of the provisions of the Reservation Act, 1978. It may be stated here that the Hon’ble High Court in Writ Appeal No.89/2010 order dated 26.8.2010, obs erved that (cid:28)if the seven consequential vacancies created by the termination of a ppellants fall to the share of reserve category candidates as per the roster poi nts the said posts have to be filled up by such candidates. For this purpose a s elect list consisting of reserve category candidates in order of merit have been drawn up. The appellants, therefore, could not have been considered against the posts which have fallen vacant on account of their termination. However, having regard to the fact that the appellants have been intermittently working in the department though on fortuitous basis, the we deem it appropriate to direct that as and when any advertisement/employment notice is issued for other posts the c ases of the appellants as well as the sixth respondent (writ petitioner in W.P.( C) No.4339/07) shall be considered against such posts by giving due relaxation o f their upper age if any of them has crossed the stipulated age. That apart, whi le asking the consequential selections some weightage as may be considered appro priate by the appointing authority may also be given to the sixth respondent (wr it petitioner in W.P.(C) No.4339/07) and the present appellants keeping in mind the previous service that may have been rendered by them. The appeal is dismisse d subject to the observations as above. & & &..

21. That with regard to the statements made in paragraph 20 of the writ peti tion, the deponent begs to state that the proforma issued by the deponent (Annex ure-1 of the instant writ petition) was prepared wrongly and not in conformity w ith the provisions of the Reservation Act, 1978. Therefore the deponent has prep ared/worked out the correct position of the roster point in conformity with the Reservation Act, 1978. As per the said Roster Points so prepared it appears that the post held by the petitioners fall under the reserved category and backlog v acancy after quashing and setting aside of their appointment. So the question of changing the posts overnight does not arise. (cid:29)

6. From the above stand of the respondents, it is clear that the vacancies were worked out on the basis of roster points. The reserved vacancies have been carried forward as per law. In view of above, we do not find any ground to interfere with the view t

7. aken by the learned Single Judge. The appeal is dismissed.