KAKUMONI BORAH vs STATE OF ASSAM and ORS.

1.Heard Mr. Niloy Dutta, the learned Senior Counsel assisted by Mr. N. Borah, for the petitioner. Also heard Mr. B. Gogoi, the learned Standing

Counsel, Health Department who appears for the respondent Nos. 1 to 5. None appears for the respondent Nos. 6 to 9 though they each have filed

affidavit-in-opposition.

The case of the petitioner in brief is that she belongs to the Other Backward Class (OBC) community. She passed Higher Secondary School

Leaving Certificate Examination and also obtained diploma type-writing certificates in English, Assamese and Hindi. She also obtained Post Graduate

Diploma in Computer Software Application. The Director of Health Services (FW) (Respondent No. 2) issued an advertisement in the local daily

‘Amar Asom’ on 28.07.2009 (Annexure-B) inviting applications from interested and eligible candidates for filing up 4 (four) posts of Lower

Division Assistant (LDA) under the Directorate of Health Services (FW). Out of the total 4 (four) posts advertised, one post each was reserved for

Scheduled Tribe (Plain) (ST(P)), Other Backward Class/More Other Backward Class (OBC/MOBC), Scheduled Class (SC) and

Unreserved/General category. The advertisement further mentioned 30% reservation of the vacancies of the posts as per Women’s Reservation

Act, 2005.

The petitioner responded to the advertisement and was issued a call letter on 08.07.2010 (Annexure-C) by the respondent No. 5 asking her to

appear for a written test scheduled to be held on 01.08.2010. The petitioner got through the written test was asked to appear before the Interview

Board for viva voice test scheduled for 15.09.2010. There were altogether 22 (twenty-two) candidates including the writ petitioner who were called

for the viva voice test. According to the petitioner she performed well in the viva voice test and was waiting for the results to be declared. However,

no results were declared and the petitioner having come to learn that the respondent authorities had made appointments to the 4 (four) LDA posts

without publishing a select list, submitted an application under the Right to Information Act, 2005 (RTI Act) through her counsel on 08.11.2012 seeking

necessary information.

The Joint Director of Health Services (MCH) then vide his letter dated 12.12.2010 (Annexure-E) furnished the petitioner a copy of the meeting

minutes of the selection committee held on 15.09.2010 along-with the recommendation list and the evaluation sheet of all the 22 (twenty-two)

candidates who participated in the viva voice test. She was surprised to learn that no reservation was made for women candidates despite the

advertisement having mentioned 30% reservation in terms of the Assam Women (Reservation of Vacancies in Services and Post) Act, 2005

(Women’s Reservation Act). The petitioner also found that she was the lone women candidate to be selected in the written test and to qualify for

the viva voice test. According to the petitioner since 4(four) posts of LDA was advertised, at least one post ought to have been reserved for women

candidates. From the information furnished to the petitioner, the respondent Nos. 6, 7, 8 and 9 were appointed from the General, ST(P), OBC and SC

categories respectively. In the meeting minutes dated 15.09.2010, no post was earmarked for women candidates in terms of the Section 4 of the

Women’s Reservation Act. Aggrieved, the petitioner is before this Court.

Mr. Niloy Dutta, the learned Senior Counsel submits that the respondent authorities are bound to make reservation for women candidate in terms of

the Women’s Reservation Act and as was advertised. He submits that Section 4 of the Women’s Reservation Act provides that 30% of the

vacancies in respect of all appointments to the services and posts in the establishment which are to be filled up by direct recruitment are to be

reserved for women candidates. He therefore submits that out of four posts of LDA advertised, at least one post will have to be reserved for women

candidates. Considering the marks of the petitioner, the respondent authorities by applying the Women’s Reservation Act ought to have selected

and appointed the petitioner.

Mr. Niloy Dutta goes on to submit that there are two types of reservation viz; vertical reservation and horizontal reservation. The reservation in

favour of the SC, ST and OBC are reservation under Article 16(4) of the Constitution and they are identified as vertical reservation whereas,

reservation for the physically handicapped, women candidates etc. are reservation under Clause (1) of Article 16 of the Constitution and they are

identified as horizontal reservation. Horizontal reservation cut across the vertical reservation which is in fact termed as interlocking reservation. By

applying the Women’s Reservation Act, out of four posts that were filled up barring one post reserved for ST(P) which remained unfilled for want

of applicants, the respondent authorities ought to have selected the petitioner and appointed her against the post reserved for the OBC category. He

submits that women’s reservation being horizontal reservation, it will cut across the vertical reservation. That not only is the petitioner a woman

candidate but she was the only woman candidate qualified to participate in the viva voce test.

Mr. Niloy Dutta in support of his submission has relied upon the following decisions of the Apex Court as well as of this Court:-

(i) Anil Kumar Gupta & Ors. Vs. State of Assam (1995)5 SCC 173

(ii) Rajesh Kumar Daria Vs. Written Public Service Commission & Ors. (2007)8 SCC 785.

(iii) Ratul Kumar Das & Ors. Vs. State of Assam & Ors. 2009 (4) GLT 648.

(iv) Bimal Sharma & Another Vs. State of Assam & Ors. 2012 (2) GLT 331.

Mr. B. Gogoi, the learned Standing Counsel for the Health Department by referring to the affidavit-in-opposition filed by the respondent No. 2 on

16.11.2017 submits that in the advertisement, out of the 4 (four) posts of LDA advertised, one post each was reserved for ST(P) , OBC/MOBC, SC

and the unreserved or General category. That the 30% reservation for women candidates as was mentioned is only inclusive of the reservation

provided statutorily or otherwise. He submits that Section 4 of the Women’s Reservation Act clearly provides that reservation for women shall be

inclusive of the reservation provided statutorily or otherwise of the SC, ST(P), ST(H), OBC, MOBC and persons with disability within the respective

category. Therefore, by applying the provisions of Women’s Reservation Act as well as the Assam Women (Reservation of Vacancies in

Services and Posts) Rules, 2005 (Women’s Reservation Rules), there was no scope of selecting and appointing the petitioner. The petitioner

belongs to the OBC category and for which, only one post was reserved. The petitioner failed to qualify in the final selection as they were other

candidates who scored much more marks then her. Therefore, the respondent authorities selected and appointed the candidates on merit and against

their respective categories. The petitioner having scored only 94 marks could not be selected for appointment over the respondent No. 8, an OBC

candidate as well scoring a total 103 marks against one post reserved for OBC. He thus submits that the writ petition is without any merit and it should

be dismissed.

The respondent Nos. 6, 7, 8 and 9 have filed their respective affidavit-in-opposition. The respondent No.6 in his affidavit-in-opposition dated

04.08.2015 has refuted the allegation of the petitioner that secrecy was adopted in not publishing the select list and that selection and appointment was

made by the respondent authorities illegally. He contends that he is dully qualified for the post and having scored the highest marks in the selection, he

was accordingly selected and appointed.

The respondent No.7 in his affidavit-in-opposition dated 04.08.2015 also contends that he scored the 3rd highest marks in the selection and

therefore, he was rightly selected and appointed against the lone post reserved for ST(P) candidate. Likewise, the respondent No. 9 in his affidavit-in-

opposition filed on 04.08.2015 contends that he obtained the second highest marks in the selection and so he was rightly selected and appointed against

the lone post reserved for SC candidates.

The respondent No. 8 in his affidavit-in-opposition filed on 07.09.2017 contends that he belongs to OBC category which is recognized by the State

Government and that he possess requisite qualifications for the post of LDA. He participated in the selection process for the post of LDA and upon

being selected, he was appointed vide order dated 30.09.2010 and thereafter, regularized to the post vide order dated 23.02.2011.

I have duly considered the submissions advanced by the learned counsels for the parties. I have also perused the materials on record including the

affidavit-in-opposition filed by the private respondents.

Be it stated herein that the petitioner filed an additional affidavit on 03.04.2013 wherein, she questioned the OBC status of the respondent No. 8 by

contending that the caste certificate produced by the respondent No. 8 was not genuine. According to her, a query was made to the respondent No. 2

by filing an application filed under the RTI Act and in reply, she was informed that the Caste Certificate of the respondent No. 8 was not verified prior

to his appointment to the post of LDA. However, the learned Senior Counsel has not pressed the additional affidavit and instead contends that

irrespective of the Caste Certificate of the respondent No. 8 being genuine or not, the petitioner is entitled to be selected and appointed in view of the

Women’s Reservation Act.

From a perusal of the advertisement published on 28.07.2009, it can be seen that the total number of LDA post advertised were 4 (four) posts.

One post each was reserved for ST(P), SC, OBC/MOBC and General category candidates. Further, 30% of the posts were reserved for women

candidates as per the Women’s Reservation Act. A perusal the meeting minutes dated 15.09.2010 would go to show that one post each was kept

for each category as mentioned above while, 30% reservation of the posts for women candidates have been kept blank. Admittedly, in terms of the

performances of the candidates on merit, they were recommended and selected against the category they belong to. In Short, the candidates who

scored the highest from the 4(four) categories i.e., the private respondents have been recommended for appointment by the Selection Committee.

Accordingly, the respondent Nos. 6, 7, 8 and 9 have been appointed.

Section 4 of the Women’s Reservation Act provides for reservation for women in vacancies to be filled up by direct recruitment. For better

appreciation, Section 4 may be reproduced as hereunder:-

“4. At the commencement of this Act, 30 percent of the vacancies in respect of all appointments to the services and posts in the establishment

which are to be filled up by direct recruitment shall be reserved for the women candidates : Provided that the aforesaid reservation shall be inclusive

of the reservation provided statutorily or otherwise to the Scheduled Castes, Scheduled Tribes (Plains), Scheduled Tribes (Hills). Other Backward

Classes. More Other Backward Classes and persons with disabilities within the respective reserved category: Provided further that 30 percent

reservation of the vacancies in respect of the Women for the remaining unreserved Category of candidates shall be available to the Women of

unreserved category onlyâ€​.

The State Government in exercise of the power conferred by Section 11(1) of the Women’s Reservation Act framed the Assam

Women’s Reservation Rules. The Women’s Reservation Rules came into force w.e.f. 30.11.2005. Rule 3 provides for the procedure to be

followed in making a direct recruitment through the Assam Public Service Commission or Section Committee/Board. Sub-Rule (3) of Rule 3 provides

that the appointing authority shall make the appointment of women candidates on 30% basis as shown in the Schedule of the Rules. The Schedule

provides for breakup of percentage of 30% reservation in respect of appointment to the services and posts by direct recruitment for women

candidates.

The Apex Court in the case of Shiv Prasad Vs. Government of India; (2008) 6 SCC 382 by examining the law laid down by the Court itself in

various other cases held that the reservation for women candidates cannot be held invalid or in excess of permissible quota and that in fact, the

reservation policy itself makes this position clear. Paragraph Nos. 24 to 29 may be gainfully quoted as below:- “24. The next question then is: How

can this woman-reservation be implemented and enforced? Whether such reservation will violate Indra Sawheny (I) and exceed 50% reservation

which is maximum? Our reply is in the negative. Let us consider the issue.

In Indra Sawheny (I), Justice Jeevan Reddy dealt with this aspect. His Lordship observed that there are two types of reservations; (i) vertical

reservations; and (ii) horizontal reservations. They must be so applied as not to exceed the percentage of reservations which is permissible under law.

This can be done by 'interlocking reservations'. His Lordship proceeded to state;  “812……..There are two types of reservations, which may,

for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservations'. The reservations in favour of Scheduled Castes,

Scheduled Tribes and other backward classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically

handicapped [under clause (1) of Article 16 can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations

what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons;

this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if

he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category,

he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of

reservations in favour of backward class of citizens remains and should remain the same. This is how these reservations are worked out in several

States and there is no reason not to continue that procedure.â€​

A similar question came up for consideration in Swati Gupta. There, the petitioner appeared in the Combined Pre-Medical Test (CPMT) held by

the State. She was not selected. She challenged a notification of the State Government on the ground that the reservation was 65% which exceeded

50% and was thus violative of the constitutional guarantee under Articles 14, 16, 19 and 21 of the Constitution as also the ratio laid down in Indra

Sawhney (I). The Government of U.P., however, issued another notification clarifying its stand on reservations.

In the amended notification, it was clarified that the reservations for the candidates belonging to other categories, such as, dependents of freedom-

fighters, sons/ daughters of deceased/disabled soldiers, physically handicapped candidates, etc. would be 'horizontal' and the candidates selected in

those categories would be adjusted in the categories to which they belong, i.e. either reserved category of Schedule Castes (SC), Schedule Tribes

(ST), Other Backward Class (OBC) or Open Category (OC) in 'vertical' reservation and it would not violate constitutional guarantee.

The Court considered Indra Sawhney (I), applied it to the case on hand  and held that the submission of the State was well founded and the

contention of the petitioner that the reservation violated constitutional guarantee of 50% was not well-founded. “3….The vertical reservation is

now 50% for general category and 50% for Scheduled Castes, Scheduled Tribes and Backward Classes. Reservation of 15% for various categories

mentioned in the earlier circular which reduced the general category to 35% due to vertical reservation has now been made horizontal in the amended

circular extending it to all seats. The reservation is no more in general category. The amended circular divides all the seats in CPMT into two

categories one, general and other reserved. Both have been allocated 50%. Para 2 of the circular explains that candidates who are selected on merit

and happen to be of the category mentioned in para 1 would be liable to be adjusted in general or reserved category depending on to which category

they belong, such reservation is not contrary to what was said by this Court in Indra Sawhney. “

A similar question was raised in Anil Kumar Gupta & Ors. V. State of U.P. & Ors. Referring to Indra Sawhney (I), and Swati Gupta, the Court

observed; Now, coming to the correctness of the procedure prescribed by the revised notification for filling up the seats, it was wrong to direct the

fifteen per cent special reservation seats to be filled up first and then take up the OC (merit) quota (followed by filling of OBC, SC and ST quotas).

The proper and correct course is to first fill up the OC quota (50%) on the basis of merit; then fill up each of the social reservation quotas, i.e., SC, ST

and BC; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota

fixed for horizontal reservations is already satisfied in case it is an overall horizontal reservation no further question arises. But if it is not so satisfied,

the requisite number of special reservation candidates shall have to be taken and adjusted/ accommodated against their respective social reservation

categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalised horizontal reservation, then

the process of verification and adjustment/ accommodation as stated above should be applied separately to each of the vertical reservations. In such a

case, the reservation of fifteen per cent in favour of special categories, overall, may be satisfied or may not be satisfied.) Because the revised

notification provided for a different method of filling the seats, it has contributed partly to the unfortunate situation where the entire special reservation

quota has been allocated and adjusted almost exclusively against the OC quota. “

In view of the provisions framed on women’s reservation and the law laid down by the Apex Court, out of the 4 (four) posts of LDA that was

advertised, 1 (one) post will have to be reserved for women candidate. If there are no women candidates available, it will be a different question

altogether. It is an admitted position that women’s reservation is a horizontal reservation and therefore, by applying the interlocking reservation as

held by the Apex Court, if women candidates are found to be unrepresented, they are to be adjusted against the category they belong to by replacing

the last male candidate on merit. The petitioner belongs to the OBC category and accordingly, she will have to be placed in the OBC category and

against the quota earmarked for the said category. If there are no women candidates, she will have to be adjusted against the last person selected on

merit. This in fact was the decision taken by the Apex Court in Shiv Prasad (supra) as well as in the case of Satya Prakash & Ors. (supra).

A Division Bench of this Court in Ratul Kumar Das & Ors. (supra) relying upon the above principle laid down by the Apex Court held that when

there is a short fall of women candidates in order of merit, the last male candidate will be replaced by a woman candidate in order to give effect to

30% reservation of post for women candidates. On the other hand, if there already exist a woman candidate in the category concerned and there is no

short fall in the 30% of posts reserved for women candidates, no further adjustments beyond the percentage prescribed would be required.

As may be noticed in the present case, since no women candidates were recommended against the 4(four) posts of LDA under consideration,

women’s reservation being a horizontal reservation and the petitioner having made it through the viva voce test and belonging to the OBC

category, she will have to be accommodated against the post reserved for OBC category candidates by following interlocking reservation in the light

of the law laid down by the Apex Court as referred to above. The respondent No. 8 indeed may have scored more marks then the petitioner but

however, in order to fulfill the reservation for women candidate, the petitioner will get the preference over the respondent No. 8 against the lone post

reserved for OBC candidate.

Under the facts and circumstances of the case, I find merit in the writ petition and the petitioner entitled to discretionary relief from this Court.

Also, the other authorities relied upon by the learned senior counsel will not require further reference.

Ordinarily, in view of the findings, the appointment of the respondent No. 8 would have to be set aside but however, having regard to the fact that

the respondent No.8 was appointed way back in the year 2010 vide order dated 30.09.2010 and confirmed in service vide order dated 23.02.2011, I

am of the considered view that it will not be fair to throw him out of service at this stage and that too, not for his fault. It may also be noticed that

though the writ petition was filed on 27.12.2012 and thereafter, admitted on 03.01.2013, the respondent authorities could file their affidavit-in-

opposition through the respondent No.2 only on 16.11.2017.

In the result, the State respondents are directed to appoint the petitioner against the post reserved for OBC category candidate as was advertised

on 28.07.2009. It is made clear that the petitioner’s appointment will be w.e.f 30.09.2010 i.e., the date on which the private respondents were

appointed. The pay of the petitioner shall be notionally fixed from the effective date but she will not however be entitled to claim arrear salaries or

count her seniority w.e.f 30.09.2010 for the purpose of promotion. The State respondents shall also create a supernumerary post to accommodate the

respondent No. 8. The exercise as directed shall be carried out within a period of 1 (one) month from the date of receipt of a certified copy of this

order.

With the above observations and directions, the writ petition stands allowed to the extent indicated. No cost.