Partly allowed

The State of Assam and 2 Ors. v. Smti Kakumoni Borah and 6 Ors.

Gauhati HC6 Feb 2020WA/85/2019

Case brief

AI extract

What is this about?

In a writ appeal, the Gauhati High Court did not quash the impugned judgment directing the appointment of a woman candidate under the 30% reservation. Instead, it directed the State to reconsider the petitioner's claim within two months and decided not to set a precedent.

What did the court decide?

Appellants directed to consider the respondent's claim for selection from the women quota within two months; appointment effective from 30.09.2010 without arrears.

The State of Assam and 2 Ors. Vs Smti… — Pension and Retirement Benefits | Gauhati HC (2020)

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GAHC010200812018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WA 85/2019

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1:THE STATE OF ASSAM AND 2 ORS

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REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM, HEALTH AND FAMILY WELFARE DEPTT., DISPUR, GUWAHATI-6

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2: THE DIRECTOR OF HEALTH SERVICE (FW) ASSAM SWASTHYA BHAWAN HENGRABARI GUWAHATI-36

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3: THE JOINT DIRECTOR OF HEALTH SERVICES (FW)

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ASSAM SWASTHYA BHAWAN HENGRABARI GUWAHATI-3

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VERSUS

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1:SMTI KAKUMONI BORAH AND 6 ORS

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D/O LATE JOGEN BORAH, R/O VILL. DHENUDHARA, P.O. GOHPUR, DIST. SONITPUR, ASSAM.

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2:RUPJYOTI CHOUDHURY S/O ARUP JYOTI CHOUDHURY R/O VILL. AMBARI P.O. GUWAHATI-1 DIST. KAMRUP ASSAM.

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3:MRINMOY HAZARIKA S/O LAKHINDRA HAZARIKA

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R/O VILL. JANAPAPTH BAKRAPARA P.O. KHANAPARA DIST. KAMRUP ASSAM.

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4:PANKAJ MAHANTA S/O LATE BHOGESWAR MAHANTA R/O VILL. NAHIRA P.O. NAHIRA P.S. PALASHBARI DIST. KAMRUP ASSAM PIN 781132

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5:GOBINDRA RAM BAISHYA S/O LATE PIAM BAISHYA R/O VILL. DALIBARI P.O. DADADARA DIST. KAMRUP ASSAM.

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6:THE SELECTION COMMITTEE FOR SELECTION OF L.D. ASSTT. REPRESENTED BY THE DIRECTOR OF HEALTH SERVICES (FW) ASSAM SWASTHYA BHAWAN HENGRABARI GUWAHATI-36

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7:THE CONTROLLER OF EXAMINATION SRIMANTA SANKARDEVA UNIVERSITY OF HEALTH SCIENCE NAAKASUR HILL TOP BHANGAGARH, GUWAHATI-

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Counsel for the appellants : Mr. D. Saikia, Senior Standing Counsel, Govt. of Assam & Ms. S. Sarma

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Counsel for the respondents : Mr. B.D. Konwar, Senior Advocate Mr. H. Agarwal and Ms. S. Bhuyan for Respondent No.1 Mr. P. Sarma for Respondent No.4

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B E F O R E

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HON’BLE THE CHIEF JUSTICE MR. AJAI LAMBA HON’BLE MR. JUSTICE SOUMITRA SAIKIA

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06-02-2020

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(Ajai Lamba, CJ )

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This writ appeal has been carried against judgment dated 26^th April, 2018 rendered in Writ Petition (C) No.6410 of 2012, titled ‘Kakumoni Borah Vs. State of Assam and others’, at the instance of State of Assam, Commissioner and Secretary, Government of Assam, Health and Family Welfare Department and two others.

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The respondent/writ petitioner filed a writ petition on the premise that she belongs to Other Backward Class Community. Advertisement dated 28.07.2009 was issued inviting applications for four(4) posts of Lower Division Assistant under Directorate of Health Services (FW).

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One post was reserved for Scheduled Tribe (Plains) [ST(P)]; one post for Other Backward Class/More Other Backward Class (OBC/MOBC); one post for Scheduled Caste (SC) and one post for Unserved/General category.

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The advertisement further mentioned 30% reservation of vacancies of the posts as per Women’s Reservation Act, 2005.

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The respondent/writ petitioner responded to the advertisement, claiming herself to be eligible. The respondent/writ petitioner competed for one post through the written test, which she passed. The respondent/writ petitioner also appeared in interview/viva-voce. There were twenty-two(22) candidates in all including the writ petitioner. The writ petitioner claims to have done well, however, no result were declared. Subsequently, the respondent/writ petitioner came

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to know that the four(4) posts had been filled up. An application under Rights to Information Act was filed whereupon she was informed that she had not been selected.

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The writ petition essentially was filed with the claim that effect of 30% reservation was not given under Assam Women (Reservation of Vacancies in Services and Posts) Act, 2005 (for short ‘the Act of 2005’). All the posts have been filed up from amongst men.

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By virtue of the impugned judgment, the Writ Court directed the State to appoint the

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petitioner against the post reserved for OBC category candidates with effect from 30^th September, 2010, viz. the date on which the private respondents were appointed; the pay of the petitioner would be notionally fixed from that date, however, she would not be entitled to claim arrear of salary or seniority for the purpose of promotion. It was further directed to create supernumerary post to accommodate Respondent No.8, who had already been selected and appointed, so as not to affect his rights.

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Mr. D. Saikia, learned counsel for the appellant State and Mr. B.D. Konwar, learned senior counsel for the respondent/writ petitioner are add idem that the post itself relates to year 2010. A decade has gone by and the clock cannot be turned back and, therefore, a reference be only made to the cadre strength. In case the reservation under the Act of 2005 has not been given effect, the claim of respondent/writ petitioner be considered in terms of the law.

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Having considered the fair stand of the appellant State, and as projected by Shri D. Saikia, we hereby refer to the additional affidavit filed on behalf of Respondent No.2 (Director of

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Health Services) Smti. Mallika Medhi, sworn on 6^th August, 2019. In para-3 of the affidavit, it

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has been clarified that the total number of sanctioned posts of L.D. Assistant under the Directorate of Health Services, Assam, is 48 (Forth Eight) and the total strength of L.D. Assistant is 37 (Thirty Seven) at present. Out of 37, 10 women are serving. Under the circumstances, under the Act of 2005, there is a margin to accommodate two more women to give effect to the reservation.

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Having considered the fact situation, we would like to extract Section 4 of the Act of 2005, which reads as under :

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“ Reservation for women in vacancies to be filled up by direct recruitment- 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.

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Provided that the aforesaid reservation shall be inclusive of the reservation provided statutorily or otherwise of 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;

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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 only.”

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The procedure to be followed to give effect to the requirement of 30% reservation for women is provided under Rule 3 of the Rules of 2005. The rule reads as under :-

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“Direct recruitment- Direct recruitment through Assam Public Service Commission or Selection Committee/Board- While filling up vacancies by direct recruitment on the basis of the recommendation of the APSC or the Selection

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Committee/Board as the case may be, the following procedure shall be followed-

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(1) While making a request to the APSC or the Selection Committee/Board for recommending candidates for direct recruitment, the Appointing Authority shall also furnish the information about reservations in favour of candidates belonging to women.

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(2) The APSC or the Selection Committee/Board as the case may be shall furnish its recommendation about such number of Women candidates in order of preference for appointment.

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(3) The Appointing Authority shall make the appointment of Women candidates on 30% basis as has been shown in schedule of this rules.

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(4) In case of non availability of adequate number of candidates belonging Women for the appointment, the post should be filled up by the respective reserved/unreserved male candidates, to which the post is meant.

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(5) The Appointing Authority shall consider the list in accordance with the provisions of the respective service rules and shall also consult the APSC where such consultation is necessary and shall finally approve the list.

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(6) The Seniority of the Candidate so appointed shall be determined in order of preference shown in the combined list furnished by the APSC or by the Selection Committee/Board.

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The entire law to give effect to reservation for women and reservation for physically handicapped has been summed up by the Hon’ble Supreme Court of India in Rajesh Kumar Daria –Vs.- Rajasthan Public Service Commission and others, reported in (2007) 8 SCC 785. The relevant portion of the judgment reads as under:-

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“9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservation in favour of SC, ST and OBC under Article 16 (4) are "vertical reservations". Special reservations in favour of physically handicapped, women etc. , under Articles 16 (1) or 15 (3) are "horizontal reservations". Where a

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vertical reservation is made in favour of a Backward Class under Article 16 (4), the candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the nonreserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. (Vide Indra Sawhney, R. K. Sabharwal Vs. State of Punjab, Union of India v. Virpal Singh Chauhan and Ritesh R. Sah v. Dr. Y. L. Yamul ). But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of Scheduled Caste women. "If the number of women in such list is equal to our more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women. "

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(emphasized by us)

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Considering the facts and circumstances of the case in hand, we find that neither the appellant State has issued the advertisement in compliance of Section 4 of the Act of 2005, read with Rule 3 of the Rules of 2005, as extracted above, nor had they complied with the law laid down by the Hon’ble Supreme Court of India in Rajesh Kumar Daria (supra) also extracted above.

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Considering the totality of the facts and circumstances of the case and, in particular, the statement given by the counsel for the appellants, we hereby dispose of this appeal with a direction to the appellants to consider the claim of the respondent/writ petitioner to selection from women quota in terms of Act of 2005.

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We also take note of the fact that a large number of cases are coming before us from the State of Assam in which the provisions of Section 4 of the Act of 2005, and Rule 3 of the Rules of 2005 are not being complied with. Under the circumstances, we request Shri D. Saikia, learned Senior Standing Counsel, Government of Assam to take up the issue with the Chief Secretary of the State so as to ensure that such errors are not committed repeatedly. Such errors are giving rise to unnecessary litigations, other than the fact that women are not getting their due under the reservation laws, in particular the Act of 2005.

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This judgment rendered by us shall not be considered as a precedent. The case has been decided considering the time already lost; and the fact that the appellant State did not issue advertisement in compliance of Rule 3 of the Rules of 2005. The cadre strength was not considered and, hence, the ambiguity crept in the selection process.

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Considering the totality of the facts and circumstances of the case, the respondent/writ petitioner’s case shall be considered within a period of two months and decided.

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Needless to say that the appointment of the respondent/writ petitioner would be

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effective from 30^th September, 2010 i.e. the date when the private respondents were appointed. The pay of the writ petitioner shall be notionally fixed from the said effective date, however, she

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shall not be entitled to claim arrear of salary or count seniority with effect from 30^th September,

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2010 for the purpose of promotion.

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JUDGE CHIEF JUSTICE

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Comparing Assistant

The State of Assam and 2 Ors. v. Smti Kakumoni Borah and 6 Ors.

Case brief

What is this about?

What did the court decide?

The State of Assam and 2 Ors. v. Smti Kakumoni Borah and 6 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

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