Dipankar Lahkar vs State Of Assam And Ors

1) Heard Mr. P.K. Deka, the learned counsel for the petitioner. Also heard Mr. N. Upadhayay, the learned Standing Counsel, Irrigation Department (respondent nos. 1 to 3) and Ms. M. Barman, learned counsel appearing for respondent nos. 5 and 7. None appears on call for the respondents No.4 and 6, although notice has been duly served.

2) By this writ petition filed under Article 226 of the Constitution of India, the petitioner is seeking appointment in the establishment of the Superintendent Engineer, Irrigation Department, Guwahati Project Circle in the post of Tracer.

3) The learned counsel for the petitioner has submitted that pursuant to an advertisement published in newspapers on 28.08.2010, applications were invited for recruitment in respect of vacant Grade-III posts of Junior Assistant, Section Assistant, Tracer and Power Pump Operator under the District Level Offices in Irrigation Department. The advertised vacancies were as under (i) Junior Assistant - 35; (ii) Section Assistant - 70; (iii) Tracer - 10; and (iv) Power Pump Operator - 25. As per the said advertisement, a written test of 100 marks was to be held for the subjects of English (35 marks), Mathematics (35 marks) and General Knowledge (30 marks) for the posts of and it was provided that successful candidates would be called for viva voce test carrying 30 marks. It is submitted that there was a provision for 3% reservation for handicapped person. Accordingly, as the petitioner was an orthopedically handicapped person, he had applied for the post of Tracer under the reserved category. It is submitted that the result of written test was declared on 07.06.2011 and accordingly, the petitioner was short listed as one of the successful candidates and he was called for oral interview. The Chief Engineer, Irrigation Department (respondent No.2) published the final select list in the newspapers on 08.10.2011, thereby announcing selection of 10 candidates for the post of Tracer, where the roll number of the petitioner did not appear. The learned counsel for the petitioner has submitted that as the said advertisement did not contain particulars relating to selection of any reserved category candidates, the petitioner had submitted a RTI application. Accordingly, from the RTI information, it was revealed that out of 10 posts of Tracer available for being filled up, 4 women were appointed against 30% reservation for women and, as such, 1 (one) woman was appointed in excess of the reservation ear-marked for women for the post of Tracer. Hence, the learned counsel for the petitioner has submitted that the selection process was not done in a transparent manner and that the selection process is vitiated by not adhering to the reservation policy as prescribed under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the 'Disabilities Act, 1995') which now stands repealed and is replaced by the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as the 'Disabilities Act, 2016'). In support of his submissions, the learned counsel for the petitioner had relied on the following case citations, viz., (i) Roshmi Dey Vs. State of Assam & Ors., 2016 (1) GLT 408, (ii) Vethita Medeo & Ors. Vs. State of Nagaland & Ors., 2015 (2) GLT 188, and (iii) State of Tripura & Ors. Vs. Dulali Rani Dutta, 2008 (2) GLT 412.

4) The learned Standing Counsel for the Irrigation Department has referred to the affidavit- in- opposition filed on behalf of the respondent no.1 by the Secretary to the Govt. of Assam, Irrigation Department. It is submitted that the stand in the affidavit- in - opposition filed by the Irrigation Department was that the number of posts for Tracer was 10 and reservation for the said post was as follows - (i) ST(P) - 10%, (ii) SC - 7%, (iii) ST(H) - 5%, (iv) OBC/ MOBC - 27%, (v Physically Handicapped - 3%, (vi) Women - 30% in all categories.

5) It is submitted that against the 140 posts advertised, 43 posts were allotted to two Autonomous Bodies, i.e. the Bodoland Territorial Council and North Cachar Hills Autonomous Council for filling up vacancies arising within their jurisdiction and, as such, the respondents had declared results only in respect of 97 posts available to them. In this regard, the learned counsel for the respondents has submitted that the reservation of 3% for physically handicapped was provided vide Govt. letter No. SWD.55/98/13 dated 20.03.1998 and the roster reservation was as follows - 34th vacancy for blind, 67th vacancy for deaf and 100th vacancy for orthopedically handicapped. Hence, it is submitted that as only 97 vacancies were available to be filled up, there was no scope of appointing the petitioner. Moreover, it is submitted that the recruitment process was done centrally, but the vacancies in respect of the post of Tracer were for the District Level Offices as follows:-

Centre

District Level Office

Vacancies

Guwahati Centre

1)

Guwahati

Project

Circle

(I),

2

Guwahati.

1

2)

Guwahati

Mechanical

Division

(I),

1

Guwahati

3)

Guwahati West Division (I), Guwahati

Jorhat Centre

1)

Golaghat Division (I), Golaghat

1

Mangaldoi Centre

1)

Mangaldoi Circle (I), Mangaldoi.

1

Barpeta Cenrtre

1)

North

Western   Project   Circle

1

(Irrigation) at Barpeta Road.

1

2)

Barpeta

Division

(Irrigation),

Sarbhog.

Nagaon Centre

1)

Nagaon Circle (Irrigation), Nagaon.

1

Cachar Centre

1)

Karimganj

Division

(Irrigation),

1

Karimganj.

Total:

10

6) It is submitted that the petitioner had applied for vacant post of Tracer at Tezpur Circle. However, there was no vacancy available at Tezpur Centre for the post of Tracer and, as such, no selection could be made for the said Centre for the said post. It is submitted that in respect of the RTI request submitted by the petitioner, the State respondents had provided RTI reply dated 16.12.2011 and 05.03.2012 respectively, thereby informing the petitioner that for the post of Tracer, no handicapped person was appointed and that 4 (four) women candidates were appointed and the names and addresses of respondents No.4 to 7 was provided to the petitioner.

7) It is seen that as per roster point of reservation of 3% as prescribed by the Govt. of Assam for physically challenged persons, the 100th vacancy is reserved for orthopedically handicapped person. Under such circumstances, two factors are found to be creating an impediment for appointment of the petitioner, viz., (i) the respondents had carried out the selection process for 97 posts, reserving 43 posts to be filled up by Bodoland Territorial Council and North Cachar Hills Autonomous Council and, as such, in the said selection process, 100 roster point had not reached, which was reserved for orthopedically handicapped person, (ii) the vacancies were for district level offices, but as there was no vacancy in respect of the post of Tracer under Tezpur Centre for the District of Sonitpur, the petitioner could not be selected and appointed.

8) In course of his submissions, the learned counsel for the petitioner had submitted that there is one post of Peon (Grade-IV) lying vacant in Biswanath Chariali and in this regard, the learned counsel has referred to the document annexed to the affidavit- in-reply filed by the petitioner on 08.03.2019. In this context it may be pertinent to mention herein that the present selection process has not been challenged on the ground that the candidature of the petitioner ought to have been considered for appointment in any other vacant posts for which the petitioner is found suitable. Moreover, the selection process has also not been challenged on the ground that the application of the petitioner could have been considered for appointment in the vacant post of Tracer in any other district. Hence, the said aspect need not be gone into because in any event the successful candidates who have been already appointed and who might be affected if this writ petition is heard on such plea have not been impleaded in this writ petition. Moreover, the petitioner has not been able to show that the application submitted by him was a common application for being appointed in any vacant Grade-III post of Junior Assistant, Section Assistant, Tracer, and Power Pump Operator.

9) As regards the appointment of respondents No.4 to 7 are concerned, although they are all women, but as per the stand taken by the State respondents in their affidavit- in- opposition, the selection and appointment of 4 women were at different centres and that out of 4 women, the respondent no.4 was an ST(P) candidate and that she was not appointed on reservation. Accordingly, contrary to the said stand of the State, there is no material on record to sustain the submissions made by the learned counsel for the petitioner that by appointing 4 (four) women, the reservation policy of the Government had been violated.

10) It is also noted from the stand of the State respondents that the selection was done by giving due weightage to reserved category candidates i.e. SC, ST(P), ST(H), OBC, MOBC, PH and Women in the final select list notwithstanding that in the newspaper advertisement such particulars were not provided. By referring to the Minutes of the Selection Committee Meeting held on 27.09.2011 (Annexure-C to the Affidavit- in- opposition), it is submitted that it was decided that "while preparing the final select list proper weightage is given to the reserved category candidate as published in the advertisement as available in the list prepared under zone of consideration against the Roster point vacancy in District level offices."

11) In respect of the cases cited by the learned counsel for the petitioner, it is seen that in the case of Vethita Medeo & Ors. (supra), the candidates who were working as contractual employees in the concerned Directorate had challenged the employment advertisement on the ground that it did not contain crucial aspects like qualification, age and reservation, however, in the present case in hand, these aspects are found to be very much present in the concerned advertisement published on 28.08.2010, as such, the ratio of the said case does not apply in the facts of the present case. In the case of Roshmi Dey (supra), as 3% reservation provided under Section 33 of the Disabilities Act, 1995 was ignored in the selection process, as such, this Court had issued a direction to the authorities to consider petitioner therein for appointment against 3% quota for physically handicapped person, if necessary, by creating a supernumerary post. In the present case in hand, it is seen that the authorities had mentioned in the concerned advertisement published on 28.08.2010 about 3% reservation for handicapped person and that appointments were made by following the reservation policy, as such, on facts of this case, the ratio of the cited case would not apply. In the case of Dulali Rani Dutta (supra), out of 101 posts of Assistant Teachers advertised, 80 vacancies were filled up and therefore, a direction was issued to the effect that the authorities were obliged to fill up remaining vacancies. In the present case in hand, the petitioner had applied for the post of Tracer, in respect of which 10 vacancies were advertised. Notwithstanding that 43 out of 140 posts advertised was released to the Bodoland Territorial Council and the North Cachar Hills Autonomous Council for filling up vacancies arising within their jurisdiction, the results of all 10 posts of Tracer was declared, but as there was no vacant post of Tracer available in Tezpur Circle, no appointments could be made in the said Circle, as such, on distinguishable facts, the ratio of the cited case would not apply.

12) Thus, in view of the discussions above, this Court finds no fault in the selection process and, as such, there are no good ground to interfere with the selection and appointment of respondents No.4 to 7. Hence, this writ petition stands dismissed. Accordingly, the Rule issued by order dated 05.11.2014 stands discharged in terms of this order.

13) No cost.