Partly allowed

Miss. Sikha Saha v. the State of Assam and 3 Ors.

Gauhati HC11 Aug 2022WP(C)/3491/2015

Case brief

AI extract

What is this about?

This writ petition challenged the recruitment process where 30% reservation for women, mandated by law and advertisement, was ignored. The Court directed the Deputy Commissioner to revisit the selection, conduct a de novo exercise if necessary, and adhere to the 30% women reservation and other statutory requirements.

What did the court decide?

Petitioner's petition allowed; direction issued to Deputy Commissioner to revisit selection, conduct de novo exercise if needed, and ensure 30% women reservation within three months.

Miss. Sikha Saha Vs the State of Assam and 3… — Pension and Retirement Benefits | Gauhati HC (2022)

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Page No.# 1/6

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GAHC010015592015

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

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Case No. : WP(C)/3491/2015

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MISS. SIKHA SAHA D/O LT. RADHA GOBINDA SAHA, R/O W/NO.3, B.B. ROAD, MANGADAI TOWN, P.O. MANGALDAI, DIST- DARRANG, ASSAM

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VERSUS

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THE STATE OF ASSAM AND 3 ORS REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM, PERZONNEL B DEPTT., DISPUR, GHY-6

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2:THE CHAIRMAN CUM DY. COMMISSIONER SELECTION COMMITTEE DARRANG MANGALDAI DIST- DARRANG ASSAM 3:RAJU NATH S/O SRI JITEN NATH VILL. DAKHIN CHUBURI P.O. and P.S. SIPAJHAR DIST- DARRANG ASSAM PIN-784145

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4:PRANAB JYOTI SARMAH S/O SRI NILA KANTA SARMAH VILL. TENGABARI P.O. CHAPAI P.S. MANGALDAI DIST- DARRANG ASSAM

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Page No.# 2/6

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PIN-78452

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Advocate for the Petitioner : MR.J ABEDIN

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Advocate for the Respondent : MRS.D SHARMAR-3 and 4

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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O R D E R

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11.08.2022

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Heard Mr. M Islam, learned counsel for the petitioner, Mr. R Dhar, learned Additional Senior Government Advocate for the respondents No. 1 and 2 being the authorities under the Personnel (B) Department of the Government of Assam and Deputy Commissioner, Mangaldoi and Mr. PP Borthakur, learned counsel for the respondents No. 3 and 4.

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The Deputy Commissioner, Darrang issued an advertisement bearing Janasonjog/1345/13 dated 27.12.2013, inter-alia inviting applications from intending candidates, who are citizens of India for recruitment of certain number of posts in the amalgamated establishment of the Deputy Commissioner, Darrang. The numbers of posts advertised are as extracted:-

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Name ofposts	No. of Posts	Payscale
Peon	ST(P) -1 ST(H) -2	Rs. 4560/- to Rs.15,000/- (GP- Rs. 1500)
	SC - NIL OBC/MOBC -1 Unreserved -2 Total : 5 Nos.
Chowkidar	ST(P) -1 ST(H) -NIL SC - NIL OBC/MOBC -1	Rs. 4560/- to Rs.15,000/- (GP- Rs. 1500)

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	Unreserved -1 Total : 3 Nos.
Mali	ST(P) -NIL	Rs. 4560/- to Rs.15,000/-
	ST(H) -NIL	(GP- Rs. 1500)
	SC - NIL OBC/MOBC -1 Unreserved -1 Total : 2 Nos.

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The advertisement specifically provides as extracted:-

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“30% reservation for women will be filled up as per Assam Women (Reservation of Vacancies in Services and Posts) Rules, 2005.

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Reservation for people with disability will be covered by O.M. No.ABP.144/95/110 dt.05.11.2011.”

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From the aforesaid extracted portion of the advertisement, it is discernible that the advertisement itself stipulated that amongst the posts for which the selection process was initiated, 30% thereof will be reserved for women. The advertisement further provides that reservation for people with disabilities as provided in Office Memorandum dated 05.11.2011 will also be applicable.

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In the Assam Women (Reservation of vacancies in services and posts) Act, 2005 (in short Act of 2005), in Section 4 thereof, it is provided as follows:-

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“4. 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 to the Schedule Castes, Schedule Tribes(Plains), Schedule Tribes(Hills). Other Backward Classes. More Other Backward Classes and persons with disabilities within the respective reserve category:

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Provided further that 30 percent reservation of 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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There is also a statutory provision in the form of the Act of 2005 wherein it is provided that 30% of the posts would be reserved for women. In other words, the stipulation in the advertisement is in conformity with the statutory requirement of the Act of 2005.

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In the resultant process, a select list was published as per notification dated 31.12.2014, which is extracted as below:-

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NOTIFICATION

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In pursuance of this office Advertisement vide No.DPN-67/2013/9 dated 27^th December, 2013 and consequent interview held from 12^th to 17^th December, 2014 for selection of Grade-IV staff in the Office of the Deputy Commissioner, Darrang, the following candidates have been selected to the post of Grade-IV in the amalgamated establishment of Deputy Commissioner, Darrang as shown against their names.

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LIST OF SELECTED CANDIDATES

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Name of post	Roll No	Name of selected candidates	Category	Category filled in as
Peon	758	Raju Nath	OBC	UR
	707	Pranab Jyoti	GEN	UR
		Sarma
	888	Sunanda Baro	ST(P)	ST(P)
	65	AnupKr. Hajong	ST(H)	ST(H)
	730	Prowas Marak	ST(H)	ST(H)
	45	Dhan Moni	GEN	UR
		Hazarika
Chowkidar	194	Sachindra Ch.	OBC	OBC/MOBC
		Deka
	159	Pramod Deka	ST(P)	ST(P)
Mali	105	Ratna Dhar Bora	OBC	UR
	97	Purandar Nath	OBC	OBC/MOBC

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A reading of the extracted list of the selected candidates does not make it

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discernible that any of them were women and that the reservation for women was followed. Further, in reply to information sought for by the petitioner under RTI, it had been provided that none of the selected candidates were women.

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From the aforesaid, the prima-facie conclusion that can be arrived at is that the selection was made in aberration of the stipulation of the advertisement as well as the requirement of the Act of 2005.

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Mr. R Dhar, learned Additional Senior Government Advocate seeks to defend the action of the respondents by stating that perhaps by applying the roster, these posts were not for the purpose of reservation for women.

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If that is so, the respondents ought to have been more alert in their exercise and the stipulation could have been provide in the advertisement that roster point does not require these posts to be filled up by women reservation. However, we have taken note of that pursuant to the required selection as per the notification dated 31.12.2014, the respondents No. 3 and 4 herein as well as many others have already been appointed and are working. But, however, it also cannot be ignored that merely because the persons are working and appointed, therefore we give a go by to the requirement of the statutory law as well as the terms of the advertisement and condone such illegality.

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In the circumstance, we are of the view that the interest of justice would be met on a direction being issued to the Deputy Commissioner, Darrang to revisit the entire selection, find out from the records as to whether the posts advertised falls within the roster point, which may require the women reservation to be not applicable and if yes, to pass a detailed reasoned order on the same. Otherwise, if it is found that the statutory law for women reservation as well as the stipulation in the advertisement are violated, to carry out a de-

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novo exercise and if in the process any of the candidates are affected, the Deputy Commissioner to follow the due procedure of law and give them a hearing and thereafter proceed further. If the Deputy Commissioner finds that the earlier selection was contrary to the law and requires interference, he is directed to do so by following the due procedure of law and thereafter a denovo selection be made keeping it confined to the candidates who had applied in the earlier selection pursuant to the advertisement dated 27.12.2013 and the resultant selection to be done should also follow the requirement of 30% reservation for women as well as for the physically handicapped as provided in the advertisement itself and if any further candidates are found to be selected and entitled for appointment, necessary consequential action be also taken. In doing so, the Deputy Commissioner shall take note that 30% reservation for women as well for physically handicapped person is a horizontal reservation which is equally applicable in respect of all categories and is unrelated to the vertical reservation for the reserved category candidates, which may have in ceiling of 50% etc.

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The entire exercise be done by the Deputy Commissioner, Darrang within a period of three months from the date of receipt of a certified copy of this order.

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The writ petition is allowed to the extent indicated above.

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JUDGE

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Comparing Assistant

Miss. Sikha Saha v. the State of Assam and 3 Ors.

Case brief

What is this about?

What did the court decide?

Miss. Sikha Saha v. the State of Assam and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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