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Judgment
Heard Mr. R. Mazumdar, learned counsel for the petitioner in WP(C) 1411/2020 as well as Mr. U.K. Nair, learned senior counsel assisted by Mr. D. Kalita, learned counsel for the petitioner in WP(C) 1241/2020. Also heard Mr. K.P. Pathak, learned standing counsel for the APDCL.
In view of the nature of order proposed to be passed, the entire factual matrix of both the writ petitions have not been narrated herein. It would suffice to mention that applications were invited for filling up the post of Office-cum-Field Assistant, Sahayak and Mali in various establishments of the APDCL. The names of shortlisted candidates were published on 10.02.2020. The petitioners in both the writ petitions contend that while publishing the select list, the provisions of Assam Women (Reservation of Vacancies in Services and Posts) Act, 2005 (2005 Act for short) and Rules framed thereunder was not taken into consideration. Accordingly, as per the reservation policy, the names of the petitioners were not incorporated in the final select list for the 692 posts to be filled up. It is projected in the writ petition that only names of 4 (four) women candidates had appeared in the category of Scheduled Caste candidates, but they were not appointed under women’s reservation quota.
The learned senior counsel for the petitioners has submitted that the reservation under the 2005 Act envisages horizontal reservation and the break-up of reservation as provided in the schedule to the 2005 Rules is as follows:
SCHEDULE
(Rule-3)
Break-up of percentage of 30% reservation in respect of appointment to the services and posts by direct recruitment for Women candidates.
Sl. No.
Category
Existing percentage
Reserved for Women (Number of post)
(1)
(2)
(3)
(4)
1.
S.T. (P)
10
3
2.
S.C.
7
2
3.
S.T. (H)
5
1
4.
O.B.C./MOBC
27
8
By referring to the stand taken in the affidavit-in-opposition filed by the respondent no.2, it is submitted that the stand is to the effect that on the basis of representations received by the APDCL, and directions issued by this Court by order dated 04.02.2021 passed in WP(C) 1351/2020, the Chief General Manager (HRA) APDCL had issued a speaking order dated 04.09.2021. The effective part of which is quoted below:
“In view of the aforementioned, the following points are delineated:
All the appointments are subject to outcome of the writ petitions as per the order from Hon’ble Gauhati High Court.
Any altercation of the impugned list of selected candidates would not be in right spirit of jurisprudence and may attract further legal complications.
Outcome of the writ petitions may necessitate change in overall reservation matrix.
As such, any interim arrangement over the provisional appointments will only complicate the matter till finality with disposal of writ petitions.
As already submitted before Hon’ble Gauhati High Court; APDCL will give a final consideration to the representations on the ground of women reservation in right spirit at the time of preparation of the final list in strict adherence to the directive from Hon’ble Court at the time of disposal of writ petitions.
All the representations on the ground of women reservation are addressed accordingly.”
Accordingly, it is projected that as the respondent authorities have not followed the 2005 Act and 2005 Rules, the writ petitioners have been deprived from being selected by the respondents by applying women’s reservation and accordingly, the petitioners are seeking direction to the respondents to publish a fresh select list for appointment by strictly following the 2005 Act and 2005 Rules.
The learned standing counsel for the respondents has submitted that the petitioners have neither challenged the employment advertisement, nor have they challenged the select list and moreover, none of the selected candidates, who might be affected by any order passed in these writ petitions, are arrayed as respondents. Accordingly, it is submitted that it would not be appropriate that the select list is interfered with by the Court in the absence of any challenge to the select list.
The Court has perused the materials available on record.
Having observed that in the order dated 04.09.2021, issued by the Chief General Manager (HRA) APDCL, it has been mentioned that the APDCL will give a final consideration to the representations on the ground of women reservation in right spirit at the time of preparation of the final list in strict adherence to the directions of this Court at the time of disposal of the writ petitions.
In view of above, and in view of the fact that while selecting 692 candidates for appointment, statutory provisions of 2005 Act and 2005 Rules framed thereunder have been over-looked and not complied with, the petitioners have been able to demonstrate that their cases were not considered in light of 2005 Act and 2005 Rules framed thereunder. Therefore, the Court is of the considered opinion that ends of justice would be made by directing the APDCL authorities:
(1) to take note of the 2005 Act and 2005 Rules framed thereunder and as the reservation policy is found to apply on the APDCL, the said authorities will examine if the petitioners in both these writ petitions come within the zone of consideration for selection and appointment to the post of Office-cum-Field Assistant, the category in which they had applied. Therefore, if the petitioners are found eligible for appointment, the APDCL shall include the name of the petitioners for selection and appointment in the said post; and
(2) it is further provided that in the event, all the 692 posts have been filled up, as the petitioners would be entitled to appointment by dint of reservation under the 2005 Act and 2005 Rules framed thereunder, the respondent authorities are directed to create supernumerary posts to appoint and adjust the petitioners by doing the needful for creation of such post, and to gradually absorb them in the substantive posts as and when vacancy arises, but by giving notional benefit from such date as may be determined by the APDCL without the petitioners claiming financial benefit for the period.
The learned senior counsel for the petitioners has submitted that the notional benefit of appointment should be made from the date when similarly situated persons were appointed from the select list of 04.02.2021.
The said submission made by the learned senior counsel for the petitioners deserves consideration. Accordingly, the APDCL authorities shall also take an appropriate decision by considering as to the date from which notional benefit of service would be provided to the petitioners, without payment of any back-wages.
The aforesaid exercise, qua the petitioners, as indicated above shall be carried out within an outer period of 2 (two) months from the date of receipt of certified copy of this order on the Managing Director, APDCL.
Both these writ petitions stands allowed to the extent as indicated above, leaving the parties to bear their own cost.
As this matter has not been decided on merit, this order shall not constitute a binding precedent.