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Judgment
AM Bujor Barua, J
Heard Mr. KN Choudhury, learned Senior Counsel for the appellant, Mr. C.P. Sarma and Mr. A. Chamuah, learned counsel for the respondent
No.1 and Mr. R.K.D Choudhury, learned Senior Government Advocate, Assam for the respondent Nos. 2, 3 and 4.
2. The appellant, being duly qualified, had offered his candidature to an advertisement dated 03.09.2013 issued by the Director General of Civil
Defence and Commandant General of Home Guards, Assam, by which, applications were invited amongst others, for 05(five) posts of Assistant
Deputy Controller of Civil Defence (Junior). It is stated that as per the advertisement, two posts were for the Unreserved (UR) Category, where
02(two) posts were for Other Backward Class (OBC) and 01(one) post for Schedule Tribe (Plain) [ST (P)]. The appellant, on being selected on
merit, was appointed against one of the two vacant posts in the UR category.
3. The said appointment of the appellant was assailed by the respondent No.1 in WP(C) No.5252/2014 on the ground that while undertaking the
selection process, due consideration was not given to the provisions of the Assam Women (Reservation of Vacancies in Service and Posts) Act, 2005
(in short Act of 2005), which requires that 30% of the posts be reserved for woman. According to the respondent No.1, by applying 30% reservation
for woman as provided in the Act of 2005, at least one of the post ought to have been reserved for woman.
4. In the writ petition, although the appellant was arrayed as a respondent, but on the advice of the department, he had refrained from appearing
before the Court on the premises that his interest would be taken care of by the State respondents. But, be that as it may, by the judgment and order
dated 26.04.2018, the appointment of the appellant as a Assistant Deputy Controller of Civil Defence (Junior) was interfered for the reason that the
last candidate appointed against the UR category would have to make way for the woman candidate. Accordingly, a direction was issued that the
respondent No.1 be appointed against the post, in which the appellant was appointed. Being aggrieved, the present writ appeal has been preferred.
5. In course of the hearing, the appellant has raised an issue that in the department, a total of 13 (thirteen) posts are available in the cadre of
Assistant Deputy Controller of Civil Defence (Junior) and the relevant Rules provide that 50% of the available posts are to be filled up by direct
recruitment and the remaining 50% by promotion. Accordingly, on being worked out, the department was required to fill up 06(six) of the posts
through direct recruitment and the remaining 07(seven) posts by promotion. The appellant has raised a contention that on facts, the advertisement
dated 03.09.2013 ought to have been against 06(six) available vacant posts and not 05(five) posts as advertised. It is the further contention that in spite
of the recruitment being made against 05(five) posts, one post of Assistant Deputy Controller of Civil Defence (Junior) still remains vacant in the
department.
6. On the requirement of the State respondents to respond to the aforesaid contention, the Court is informed that in fact, 06(six) vacant posts were
available for the recruitment in the cadre of Assistant Deputy Controller of Civil Defence (Junior) and one post still remains vacant as on today. The
learned Senior Government Advocate also informs the Court that the department has no objection, if there is a direction that the services of the
appellant be adjusted against the vacant post that is still available.
7. On the basis of the aforesaid concession and given the peculiar factual situation of the present matter, more so, by taking into consideration that
the petitioner was appointed as an Assistant Deputy Controller of Civil Defence (Junior) for which, no fault can be attributed to him, this Court is of
the view that the ends of justice will be met, if a direction is issued to the respondent authorities to allow the appellant to continue with his appointment
as an Assistant Deputy Controller of Civil Defence (Junior) and his service be adjusted against the available vacant post.
8. The aforesaid direction will also be in conformity with the view taken by the Supreme Court in Vikas Pratap Singh and others â€"vs- State of
Chattisgarh and others, reported in (2013) 14 SCC 494, wherein in paragraph-27, it has been held as follows:-
Admittedly, in the instant case the error committed by the respondent Board in the matter of evaluation of the answer scripts could not be
attributed to the appellants as they have neither been found to have committed any fraud or misrepresentation in being appointed qua the first merit list
nor has the preparation of the erroneous model answer key or the specious result contributed to them. Had the contrary been the case, it would have
justified their ouster upon re-evaluation and deprived them of any sympathy from this Court irrespective of their length of service.â€
9. In the instant case also, as indicated above, the appellant was appointed as an Assistant Deputy Controller of Civil Defence (Junior) on being
duly selected on merit and it was not his fault that the respondent authorities had not applied the provisions of the Act of 2005, which otherwise would
have entitled the respondent No.1 to be appointed.
10. In such view of the matter and as agreed by the parties, the appeal stands disposed of by directing the respondent authorities No.2 to 4 to allow
the appellant to continue in his service as an Assistant Deputy Controller of Civil Defence (Junior) by adjusting his service against the available vacant
post of Assistant Deputy Controller of Civil Defence (Junior) and Respondent No.1 be appointed in terms of the order passed by the learned Single
Judge.
11. The aforesaid direction has been issued in the prevailing facts and circumstance of the present case and shall not be construed to be a
precedent for any other matter.
In terms of the above, the appeal stands disposed of.