Dhubri Zila Anusuchit Jati Parishad and Another vs The State of Assam and Others

D.N. Baruah, J.—In this Civil Rule the Petitioners have prayed for appropriate writ or direction for quashing appointment, for publishing merit list of selected candidates for LP, ME and MV Schools in Dhubri Sub Division and to direct the Respondents to fill up the vacancies of the post of Assistant Teachers from the list of selected candidates in terms of Scheduled Castes, Scheduled Tribes (Reservation of Vacancies and Services and Posts) Act, 1978, for short ''the Act'' clearing the backlog its shown in Annexures V and BI to the petition.

Petitioners ease, in brief, are as follows:

The first Petitioner is a registered Association formed in the year 1981. The object of the association is to look after the over all interest of Scheduled Caste Community in the Dhubri Sub Division within the District of Dhubri. The second Petitioner is the Secretary of the first Petitioner and a resident of North Tokrer Chara village in the district of Dhubri. This petition has been filed representing the interest of the persons mentioned in Annexure-l to the writ petition. All these members of the Association belong to Scheduled Caste Community and therefore, they are entitled to protection and preference guaranteed under the Act. The members of the Petitioners'' association are qualified to be appointed Assistant Teachers in the provincialised LP, ME and MV Schools in Assam and their names were registered in the local Employment Exchange. The Petitioners were aggrieved by the arbitrary and illegal appointment, of persons 19 different provincialised LP, ME and MV Schools in Dhubri Sub Division without publishing a merit list of selected candidates even after holding interview for the said purpose. The Petitioners have challenged the Respondents'' inaction or refusal to clear up the backlog of vacancies in spite of availability of sufficient number of qualified Scheduled Caste candidates for appointment to the post of Assistant Teachers.

The Chief Secretary to the Government of Assam, who was in over all charge of the Department of Welfare of Plain Tribes and Backward Classes, by Annexure-II letter dated 24,6.89 directed all the Heads of Department that the appointing authorities in the different establishments under different departments of the State Government would assess the backlog of the reserved vacancies for the Scheduled Castes, Scheduled Tribes (Hills) and Scheduled Caste (Plains) and to invite applications exclusively from the concerned reserved category of candidates with a view to exhaust backlog. Thereafter, by Annexure-III order dated 3.9.90 the Chief Secretary directed all Heads of Departments to take expeditious action as per the Act.

Youth Wing of the Petitioners'' Association filed application before the 4th Respondent-Addl. Deputy Commissioner, Dhubri for inspection of the roster register maintained for the Scheduled Caste candidates and accordingly Respondent No. 4 vide Annexure-IV letter dated 20.11.89 directed all the Heads of Offices to inform as to whether roster register of Scheduled Caste candidates had been maintained in their offices as per the Government direction. The 6th Respondent-The Deputy Inspector of Schools, Dhubri, in compliance with the aforesaid letter dated 20.11.89 submitted an extract of Roster Register of Scheduled Caste and Scheduled Tribes in respect of the post of Assistant Teachers in LP, ME and MV School in Dhubri Sub Division. As per the Rosier Register filed by the 6th Respondent since 1.7.79 to 1990 a total number of 1826 Assistant Teachers were appointed and out of which 1645 were from general category and 70 were from Scheduled Caste candidates. The backlog of Scheduled Caste Candidates had been calculated at 43.

The 6th Respondent wrongly calculated the backlog of Scheduled Caste candidates as 43, inasmuch as, the Schedule to the Act specifically provides that in a roster of 20 vacancies, two vacancies are to be reserved for Scheduled Caste candidates. Therefore, against 1826 vacancies filled up, 183 posts ought to have gone for Scheduled Caste candidates. Since 70 Scheduled Caste Candidates have already been appointed, the backlog of Scheduled Caste Candidates would stand at 113, Since 1979 although sufficient number of qualified Scheduled Caste candidates were available for appointment, the Respondents illegally deprived those candidates by appointing general candidates. The Chief Secretary in the Government of Assam vide Annexure-VII letter dated 21.6.89 directed all the Heads of Departments that backlog in respect of any category of posts should be filled up first to the maximum extent possible whenever any vacancy was to be filled up by Scheduled Caste and Scheduled Tribe candidates, In 1991 by Annexure-VIII advertisement a good number of post of Assistant Teachers in LP, ME and MV-Schools were advertised and all the candidates mentioned in Annexure-I to the Petitioner applied to the posts. However, even after completion of interview, no merit list of selected candidates had been published by Respondents till the date of tiling of this writ petition, in spite of the notification issued by the Stale Government from time to time. The Government vide Annexure-IX notification dated 21.11.92 reconstituted an Advisory Hoard and again reconstituted the said Advisory Board by another notification dated 30.3.93. Even after such reconstitution of the Advisory Hoard the Petitioners were not called for fresh interview.

The Petitioner have now come to know that there are altogether 388 posts of Assistant Teachers are lying vacant and there is a backlog of 113 posts in L.P Schools upto 1990 and for ME and MV schools there is a backlog of 101 posts, All these backlogs are meant for Scheduled Caste candidates, Under the provisions of Reservation law and on the basis of Annexure-VII letter dated 21.6.89 the Respondents are under obligation to fill up the vacancies first to the maximum extent possible by the Scheduled Caste candidates in order to clear the backlog which has been artificially created since 1979. The Petitioners have further stated that though the persons named in Annexure-I were interviewed by the Advisory Board in 1991, no select list has been published till date. However, 6th Respondent has now started appointing persons, including his wife Some candidates as mentioned in paragraph 16 of the petition were illegally appointed without publishing any merit list of the selected candidates. Because of this illegal and arbitrary action, the right of candidates belonging to Scheduled Caste and Scheduled Tribes were adversely affected and there has been violation of Article 14 and 16 of the Constitution. Hence the present petition.

Deputy Inspector of Schools, Dhubri-Respondent No. 6,has filed affidavit-in-opposition on behalf of all Respondents, In the affidavit, the Respondents have taken the plea that nobody has right to be appointed as Assistant Teacher in the provincialised LP, ME/MV Schools unless he is selected by the Sub-Divisional Level Advisory Board in accordance with law. They have denied that the appoint merits were made without having any select list for the purpose. All the appoint merits have been made after following the procedure laid down by laws and the backlog vacancies for Scheduled Caste and Scheduled Tribe candidates. They have also stated that under the Act 7% of the vacancies are reserved for the members of Scheduled Caste. In the past as suitable candidates were not found the reserved quota could no be filled up and there was backlog therefore the Government directed different department to fill up those backings. The Respondent have further denied that there was 388 posts of Assistant Teachers lying vacant. However, only 123 posts were advertised for appointment of Asstt. Teachers for LP School in Dhubri Sub Division, All the backlog have been cleared and the Petitioners cannot make any grievance at that regard.

I have heard Mr. K.P. Pathak, learned Counsel for the Petitioners Though affidavit-in-opposition has been filed none appeared on behalf of Respondents. Record has also not been placed before this Court. It is not known why the records have been withheld in spite of direction to produce it. The counsel for the Petitioners has been heard on several dates, Even after commencement of hearing the affidavit was not tiled though several opportunities were given. By order dated 2.9.94 the Respondents were allowed to file affidavit-in-opposition and place the record. On 16.9.94 the affidavit on behalf of Respondents was filed, however, without any record. It is really surprising why the Respondents failed to produce the record.

Mr. Pathak has submitted that the total strength of Primary School teachers were shown as 1826, 70 Scheduled Casts teachers were shown to be appointed and the backlog had been shown as 45. As per the Schedule-I of the Act, in a roster of 20 vacancies, 2 vacancies should go to Scheduled Caste. Calculating at that rate, for 1826 number of posts, 182 vacancies ought to have been reserved for Scheduled Caste and Scheduled Tribes, however, only 70 were appointed and the backlog ought to have been shown as 112. The authorities failed to follow the provisions of the Act. In ME Schools upto 1991 total posts of ME Teachers were shown as 803. Only 11 teachers were shown to be appointed keeping a backlog of 70. For MV Schools upto 1990 total 340 teachers were appointed, 3 were appointed from Scheduled Castes keeping a backlog of 31.

Mr. Pathak further submitted that Rule 4(6) of Assam Scheduled Caste and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Rules, 1983, for short ''the Rules'', provides for re-advertisement in case of non availability of adequate number of candidates belonging to Scheduled Caste for appointment to fill up the reserved vacancies. If after readvertisement, the vacancies still remain unfilled then such reserved vacancies have to be dereserved first as per Rule 4(6) and then only may be filled up by general candidates as per Rule 4(7). However, the authorities did hot take care to appoint teachers from the Scheduled Caste in compliance with the terms of Rules. The Government had no power to artificially create the backlog as it would defeat the very purpose of the Act and Rules.

On the basis of the submissions, it is to be seen whether the Government''s action is sustainable in law.

As per Suction 4 of the Act, all appointments to services and posts in the establishment which are to be filled up by direct recruitment shall be regulated in the manner indicated in the said section. As per Sub-section (a) of Section 4, seven per cent of the vacancies shall be reserved for the candidates belonging to Scheduled Castes and ten per cent for Scheduled Tribes (Plains) and five per cent for Scheduled Tribes (Hills), in the manner set out is the Schedule; provided that the State Government may from time to time review the implementation of the reservation policy and lake adequate measures including increase of percentage, mentioned in Clause 4(a) of the Act; provided further that the candidates belonging to Scheduled Castes and Scheduled Tribes who qualify for selection on merit shall be included in the general list and not against reserved quota, The members of the Scheduled Castes and Scheduled Tribes shall be entitled to a concession of three years over the prescribed maximum age limit for appointment to any service or post, Section 7 of the Rules provides that if an appointing authority makes an appointment in contravention of the provisions of Section 4 and 5, he shall be punishable with fine which may extend to one thousand rupees and the State Government may also draw up proceedings against the respective Head of the Department asking for show cause and for further punishment.

As per Schedule of the Act, a roster of twenty vacancies will be necessary to give effect to the reservation of vacancies for the Scheduled Castes and Scheduled Tribes. The roster given in the said Schedule to be adopted each and every establishment. As per the said roster, Scheduled Castes candidates are required to be appointed in 3rd and 12th vacancies. A register shall be maintained for giving effect to the instructions. Before making any appointment by direct recruitment, the appointing authority shall ascertain by consulting the register whether the vacancy is reserved or unreserved and if it is reserved, for whom it is so reserved. Immediately after an appointment is made the particulars thereof shall be entered in the register and signed by the appointing authority. The rosier is a running account from year to year and shall be maintained accordingly. If recruitment in a particular year stop at a particular point of the cycle, recruitment in the subsequent year shall begin at the next point, No gap shall be left in the roster in filling vacancies, and if a reserved vacancy for want of a qualified Scheduled Caste candidate to be treated as unreserved foe candidate appointed shall shown against the point, Attempt shall be made at the time of filling each successive unreserved vacancy to recruit a Scheduled Caste candidate but if a Scheduled Caste candidate cannot still be found in the year in which the vacancy is filled the reservation shall be carried forward to the following year the first unreserved vacancy in that year, shall be reserved for the Scheduled Castes in addition to them according to the cycle. In the absence of a qualified Scheduled Caste/Scheduled Tribe candidate in a particular year, the vacancy shall be carried forward till requisite percentage in that cadre is filled up. For permanent and temporary vacancies separate rosier shall be maintained.

Rules have been framed in 1983 in exercise of the power u/s 13 of the Act. As per Rule 4 of the Rules, while filling up vacancies by direct recruitment on the basis of recommendation of the Assam Public Service Commission (APSC) or the Selection Committee/Board as the case may be, the procedure shall be followed as mentioned in the said Rule. While making a request to the APSC or Selection Committee/Board for recommending candidates for direct recruitment, the appointing authority shall also furnish the information about the reservations in favour of candidates belonging; to Scheduled Castes and Scheduled Tribes (Hills) and Scheduled Tribes (Plains) and the APSC or Selection Committee/Board shall furnish its recommendation as mentioned in the respective service Rules. In case, however, where there is no service rule, the APSC or the Committee/Board shall recommend such number of candidates as are equal to double the number of vacancies, in order of preference for the appointment, The APSC or the Selection Committee/Board shall furnish to the appointing authority separate lists of candidates recommended by it, namely, one in respect of Scheduled Caste, Scheduled Tribes (Hills), Scheduled Tribes (Plains) and another for others for appointment against the vacancies shown as reserved for the candidates belonging to Scheduled Caste, Scheduled Tribes (Hills) and (Plains) and against the unreserved vacancies. The appointing authority shall make appointment in accordance with the roster indicated in Clause (i) of the Schedule to the Act, In filling up the reserved vacancies as shown in the said roster, candidates belonging to Scheduled Castes and Scheduled Tribes (Hills) and Scheduled Tribes (Plains), securing positions below, the specified number of vacancies shall be appointed in order of preference as shown in the list.

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. In case of non-availability of adequate number of candidates belonging to Scheduled Castes and Scheduled Tribes (Hills) and Scheduled Tribes (Plains) for the appointment to fill up all the reserved vacancies, the appointing authority shall arrange to re-advertise for such class of candidates only to fill up the unfilled reserved vacancies, If in the second advertisement also Scheduled Caste, Scheduled Tribes (Hills) and Scheduled Tribes (Plains) are not available for appointment to fill up all the reserved vacancies the appointing authority with the prior concurrence of the Department for the Welfare of Plains Tribes and Backward Classes shall issue orders de-reserving the vacancies giving due explanation for the dereservation, if it considers that the reserved vacancies cannot be left unfilled in the public interest. The reserved vacancies so de-reserved shall then be filled up by appointing other candidates in order of preference as indicated in the list.

Any vacancy dereserved in accordance with the procedure laid down in Sub-rule (6) of the Rules shall be filled up by general candidate, but the reservation shall be carried forward to the, subsequent cases of appointment, till the reservation quota is filled up by appointing Scheduled Castes or Scheduled Tribes (Hills) and Scheduled Tribes (Plains) candidates, in whose favour the reservation stood in the roster.

From the reading of the Act and Rules, it is Abundantly clear that while making appointment in case of direct recruitment certain percentage of posts are to be reserved for Scheduled Caste, Scheduled Tribes (Hills) and Scheduled Tribes (Plains) and these are to be filled up in the manner shown in the Schedule of the Act. As I have stated earlier, 3rd and 12th positions are to be kept reserved for the Scheduled Castes. Again in Section 4 of the Act detailed procedure for reservation for Scheduled Castes and Scheduled Tribes in vacancies to be filled by direct recruitment have been mentioned. The said section further shows that if any posts are to be filled up by direct recruitment certain posts are to. be reserved, i.e. for Scheduled Castes seven percent, for Scheduled Tribes (Plains) ten per cent and for Scheduled Tribes (Hills) five per cent, and it should be done in the manner set out in the Schedule of the Act. However, for any reason Scheduled Caste/Scheduled Tribes candidates are not available, the authority cannot straight way appoint from general quota and the authority shall arrange to readvertise the posts and even alter that also if the candidates from the reserved quota are not available in that case the appointing authority with the prior concurrence of the Department for the Welfare of Plains Tribes and Backward Classes shall issue orders preserving the vacancies giving due explanation for the de-reservation. The Rules very clearly indicate that the appointing authority shall make all endeavour to fill up the posts of reserved quota as per the 20 point rosier mentioned in the Schedule of the Act. From this, the intention of Rule making authority is clear that all endeavour should be made to fill up the reserved vacancies. Even if the vacancies are filled up by general candidates, the reservation shall be carried forward to the subsequent years of appointments till the reservation quota is filled up by appointing Scheduled Caste or Scheduled Tribes (Hills) and Scheduled Tribes (Plains) candidates, in whose favour the reservation stood in the rosier.

It has been alleged by the Petitioners that the appointing authority without following the procedure appointed teachers and no before de-reserving the vacancies. This itself is a clear violation of provisions. In spite of availability of candidates belonging to Scheduled Castes and Scheduled Tribes the appointments were made from general quota. In the affidavit-in-opposition, the Respondents have not categorically denied the averments made in this respect. Records have also not been produced for the reasons beat known to them. This Court had no opportunity to hear the Respondents through their counsel. The allegations made by the Petitioners have also not been specifically denied, in the absence of the record, this Court is not in a position to find out the actual position regarding appointment of teachers belonging to the Scheduled Castes, Scheduled Tribes (Plains) and Scheduled Tribes (Hills).

The members of Scheduled Castes and Scheduled Tribes are backward Classes of citizen and they are not adequately represented in the services and posts. Therefore, the State legislatures felt it expedient to provide for reservation of vacancies in services and posts and in that view ''the Act'' has been enacted. Detail procedure has been prescribed regarding appointment of persons belonging to the said listed classes. It is, therefore, the bounden duty of the State or the authority to, comply with the direction of the Act and the Rules made thereunder. The Petitioners have made various allegations regarding non compliance of the provisions of the Act and the Rules, The records are not available before this Court, All these requires thorough scrutiny and examination and that is possible only by the Authority in consultation with the relevant records.

In the circumstances, 1 dispose of this Civil Rule will) the following directions:

(i) The Respondents shall examine the matter thoroughly in consultation with the relevant records and come to a finding as to whether the provisions of the Act'' and ''the Rules'' have been complied with;

(ii) If the Respondents find that requirement of provisions of the Act and Rules have not been followed the Respondents shall lake adequate steps for speedy implementation of the direction of the Act and Rules;

(iii) The Respondents shall make all endeavour to appoint members of Scheduled Caste and Scheduled Tribes in accordance with the provisions of Act and Rules by selecting the candidates among the members of the said classes and if there is backlog the Respondents shall also endeavour to exhaust the backlog, as early as possible, in strict compliance with the provisions of law ; and

(iv) The Respondents shall complete all these process within a period of six months from the date of receipt of this order.

In the facts and circumstances of the case, I make no order as to costs.