Ramesh shayam and Another vs State of Assam and Others

D. Biswas, J.—This writ petition has been preferred by Shri Ramesh Shyam and Shri Rajib Pegu for setting aside appointment of Respondents Nos. 4 and 5, and 11 other persons of Enforcement Inspectors and for issue of a writ of Mandamus commanding the Respondent No. 1 to appoint them as such in view of inclusion of their names in the select list dated 22.1.1997.

The writ Petitioners who are Master Degree holders were selected by the Assam Public Service Commission in pursuance of an advertisement issued on 25.3.1995 for appointment to the post of Enforcement Inspectors. The Petitioner No. 1 who is a candidate from Scheduled Tribe-Hills occupied the 18th position while the Petitioner No. 2 who is a candidate belonging to Scheduled Tribe-Plains was graded 19th in order of merit. The applications were invited for 20 posts by the advertisement dated 25.3.1995. Later on, by a corrigendum, selection was confined to 14 posts to be filled up direct recruitment as 25% of the vacancies were proposed to be filled up by Departmental candidates as per amended provisions of the Assam Transport Services Rules, 1983. The Respondent No. 1 vide letter dated 14.2.1996 gave the break-up of the 14 posts in the following manner:

5 posts ..... General Candidates 2 posts ..... S.C. Candidates 3 posts ..... S.T.P. Candidates 2 posts ..... O.B.C. Candidates 2 posts ..... S.T.-H Candidates

The Petitioners contention is that altogether 30 posts of Enforcement Inspectors were available as per chart prepared on 29.5.1996 by the Transport Department. Out of the aforesaid 30 posts, 7 posts have been filled up as per recommendation of the Assam Public Service Commission vide letter dated 26.5.1995, 4 posts were filled up by promotion and 1 post was filled up by direct recruitment on the strength of the judgment rendered in Writ Appeal No. 76 of 1996 by a candidate from the waiting list prepared by Assam Public Service Commission. Till 8.9.1997, when the impugned orders were issued, only 12 posts were held by regularly appointed candidates. The rest 18 were held by appointees under Regulation 3(f) of the Assam Public Service Commission (Limitation and Functions) Regulation, 1951. By the orders dated 8.9.1997, 14 candidates have been appointed from the select list dated 22.1.1997 under the direct recruitment quota to the exclusion of the writ Petitioners although their position in the select list were at Serial No. 18th and 19th. This was done in violation of reservation policy. Thereafter, 4 posts remained vacant. 3 posts out of 4 posts belonged to direct recruitment quota and 1 to promotional quota. The posts were meant for reserved category candidates. But the authorities appointed Respondent No. 4 and 5 who are general category candidates. The Petitioners have, therefore, challenged the appointment of Respondents No. 4 and 5.

It is further pleaded that the State Government vide notification dated 8.6.1998 appointed 11 persons from the select list dated 22.1.1997 under Regulation 3(f) of the Assam Public Service Commission (Limitation and Functions) Regulation, 1951 ignoring the legitimate claim of the writ Petitioners. The appointment of 11 persons have been without any authority of law. They held positions below the writ Petitioners in the select list dated 22.1.97. Therefore, their appointment under Regulation 3(f) is not sustainable in law. This is more so because the appointments are in violation of the reservation policy of the State Government.

From the affidavit-in-opposition filed on behalf of the State, it would appear that the vacancy position as notified in the advertisement was reduced to 14 and a corrigendum was issued accordingly. It is further admitted in the affidavit-in-opposition that out of 14 vacancies, 5 were meant for general category and 9 were meant for reserved category. But in view of the law laid down by the Supreme Court in Indra Swahney''s Case 1992 Supp. 3 SCC 217, the Government decided to appoint 7 candidates from the general category and 7 candidates from reserved category and accordingly they issued appointment orders vide notification dated 8.9.1997 (Annexure B1 and B2 of the affidavit-in-opposition). The appointment of Respondents No. 4 and 5 under Regulation 3(f) have been pleaded to be in accordance with their position in the select list and the reservation policy. It is further pleaded that out of the total strength of 61 Enforcement Inspectors, only 4 number of Inspectors have been working on ad hoc basis.

The writ Petitioners in their affidavit-in-reply to the affidavit-in-opposition while reiterating their main contentions also challenged the apportionment of the vacancies between the reserved categories and general category.

The admitted position as emerges out from the pleadings is that initially the A.P.S.C. invited applications for 20 posts of Enforcement Inspectors. Thereafter, the vacancies were reduced to 14 and a corrigendum was issued accordingly. The law as laid down in Indra Swahney''s case (supra) does not permit reservation of vacancies more than 50% in a year and, accordingly, the State Government decided to appoint 7 candidates from the general category and 7 candidates from the reserved category. This decision is in accordance with the law laid down by the Supreme Court. By notifications dated 8.9.97 (Annexure-IX and X), the Respondent authority appointed 14 persons out of which 7 appears to be from reserved category. According to the State Government, all these persons belong to the select list prepared by the A.P.S.C. and none of them is below the writ Petitioner''s in the select list.

On this context, it is necessary to examine whether there has been violation of the reservation policy and whether any candidate below the writ Petitioners in the merit list has been appointed by the State Government.

The Petitioners case for appointment against direct recruitment quota in a year against reserved vacancies may be examined as per 20 point roster available in Government letter dated 30.6.93 (Annexure-VI). The roster reads as below:

Roster Points:

1st. Vacancy - Reserved for ST(P) under Assam SC and ST(RVSP) Act, 1978.

2nd Vacancy - OBC/MOBC

3rd Vacancy - SC �do----

4th Vacancy - Unreserved

5th Vacancy - �do�

6th Vacancy - �do�

7th Vacancy - ST(H) �do�

8th Vacancy - OBC/MOBC

9th Vacancy - Unreserved

10th Vacancy - �do�

11th Vacancy - Reserve for ST(P) -do�

12th Vacancy - Sc

13th Vacancy - Unreserved

14th Vacancy - �do�--

15th Vacancy - OBC/MOBC

16th Vacancy - Unreserved

17th Vacancy - �do�

18th Vacancy - �do---

19th Vacancy - �do---

20th Vacancy - �do---

It appears from the aforesaid roster that out of 14 posts, 2 posts are to be filled up from ST Plains and 1 post to be filled up from ST-Hills. The notifications dated 8th September, 1997 (Annexure-IX and X), show that the authorities have appointed two candidates from ST-Plains (Shri Uttam Kumar Doley and Sita Ram Doley) and 1 candidate from ST- Hills (Shri Gautam Ch. Barman). The roster upto 14th vacancy show that 2 vacancies are to be filled up by members of the SC community. The authorities have appointed two persons only from that community. Similarly, two vacancies were available for OBC/MOBC candidates and the authorities have appointed two persons from the aforesaid categories. The candidates appointed from ST(P) and ST(H) are above the writ Petitioners. Even the other candidates appointed from general category are also above them in the merit list. The Respondents No. 4 and 5 occupied 8th and 9th position in the merit list The writ Petitioners being at Serial No. 18 and 19 cannot dispute their appointment. The break-up of reservation indicated in letter dated 14.2.1996 has no relevance since it was beyond the law laid down in Indra Swahney''s case (supra).

The Petitioners have also challenged the appointment of 11 persons under Regulation 3(f) of the Assam Public Service Commission (Limitation and Functions) Regulations, 1951 for a period of four months issued vide order dated 8.6.98 (Annexure-VA). This appointment on temporary basis under Regulation 3(f) is obviously within the powers of the Government. But the appointment of the 11 candidates under Regulation 3(f) is also subject to judicial review if the exercise of such powers of appointment by the Government appears to be in violation of the norms of natural justice. Out of 11 persons. Md. Muzibuddin Ahmed, Sri Ranjit Gogoi, Md. Sahabuddin Tapadar, Md. Ahsahul Haque, Sri Ranjit Ch. Dutta, Sri Lachit Konwar, Sri Kaitavjit Buragohain, Sri Ashim Kr. Saikia, Sri Dibyajyoti Bora and Sri Pinaki Dutta appear to be from the select list dated 22nd January, 1997. However, Sri Lakshmi Prasad Bora is from outside the select list. The above mentioned 10 candidates appear to have been picked up at random from the select list without regard to their merit position. It is true that the Petitioners may not have any claim in view of their position in the merit list against 14 notified vacancies, but their right for consideration for appointment even under Regulation 3(f) still remains if the authorities want to fill up the anticipated vacancies or the future vacancies under Regulation 3(f) by the candidates from the same select list. Once the authorities decide to fill up the anticipated or future vacancies under Regulation 3(f) from the select list prepared earlier, such appointment has to be in accordance with the position of the candidates in that merit list. Otherwise the appointment made at random, incorporating only one candidate from outside the select list, would get vitiated being capricious and arbitrary. From this point of view the writ Petitioners who are above the candidates appointed appear to have a cause to vindicate. The appointment of the candidates made at random ignoring their position in the merit list cannot be endorsed as valid in law. When the administrative exigencies demand appointment under Regulation 3(f) and the authorities decide to make such appointment from and amongst the candidates of a select list, such appointment has to be made in accordance with their position in the merit list subject, however, to reservation policy etc. This shows that the appointment of 11 candidates under Regulation 3(f) has to be interfered with.

In the result, the writ petition is partly allowed. The notification dated 8.6.1998 whereby 11 persons have been appointed under Regulation 3(f) is hereby set aside. The Respondent authorities may fill up the post available either by direct recruitment or under Regulation 3(f) in accordance with the observation made hereinbefore.

No order as to costs.