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Judgment
[1] By way of filing this writ petition, the petitioner, namely, Sri Palash Ranjan De, has challenged the appointment of private respondents No. 4 to 9, to the post of Group-D under North Tripura District Judiciary.
[2] Shorn of unnecessary details, the facts relevant are taken into consideration to decide the issues in question. The respondent No. 2, the District & Sessions Judge, Unakoti Judicial District, Kailashahar had issued an advertisement vide No. F.10(3)DJ/N/2005-07/4167 dated 24th June, 2008 for filling up 76 numbers of Group-C posts and 60 numbers of Group-D posts. In response to the said advertisement, petitioner along with others had participated in the process of selection being eligible for the Group-D posts and the name of the petitioner had appeared in the select list of candidates for 60 numbers of Group-D posts and his serial number in order of merits amongst Unreserved candidates was 30.
[3] Considering the fact that at least 50% posts of Group-D would be filled up from general category and he was waiting for the offer of appointment. However, he came to know that another advertisement dated 12.10.2010 was issued by the respondent No. 2 for fresh applications and therefore the selection for filling up Group-C and Group-D posts and the said advertisement having been challenged in WP(C) No. 50 of 2011 and WP(C) No. 52 of 2011 in the Hon'ble Gauhati High Court and by a judgment dated 26.07.2011 it was held that the impugned advertisement dated 12.10.2010 and the selection and appointment thereof would have no bearing so far as the earlier advertisement dated 24.06.2008 and the selection thereof are concerned, and also directed the respondents to implement the select list, that was prepared pursuant to the earlier advertisement dated 24.06.2008 as expeditiously as possible, maintaining seniority of the candidates selected in terms of the advertisement dated 24.06.2008 over the selected candidates in respect of advertisement dated 12.10.2010.
[4] Vide a communication dated 14.06.2006, it was directed by the Hon'ble High Court that candidates relating to the advertisement dated 24.06.2008 should be appointed within a period of three months in terms of the select panel.
[5] Thereafter, the respondent No. 2 had filled up all the vacant posts out of 60 Group-D posts by issuing offer of appointment which included the private respondents' No. 4 to 9 along with another candidate, namely, Sri Fulendra Chakma, all belonging to Scheduled Tribe and consequently, out of 60 posts 25 posts were filled up by candidates belonging to ST category as it would appear from a list furnished to the petitioner under RTI Act by a letter dated 13th June, 2017.
[6] Mr. Raju Datta, learned counsel appearing for the petitioner contended that 6 candidates belonging to ST category i.e. the private respondents herein, were appointed in excess of quota reserved for ST candidates thereby depriving the petitioner from his legitimate right to be appointed to one of the posts. Learned counsel for the petitioner further contended that 31 posts out of 60 posts were to be filled up by UR candidates, 19 by S.T. candidates and 10 by SC candidates.
[7] Learned counsel for the petitioner further contended that appointment of 6 ST candidates instead of 19, the respondent No. 2 had violated the 50% rule in case of reservation. Counsel for the petitioner urged that even assuming that there was any backlog in respect of ST quota, all the vacant posts could not be filled up in a particular year out of ST candidates only.
[8] Finally, Mr. Datta, learned counsel appearing for the petitioner submitted that there was no indication in the advertisement earmarking the backlog vacancies for Group-D posts and in absence of such indication, carry forward principle might not be applicable.
[9] State respondents and the private respondents No. 2 & 3 as well as the other respondents have submitted their respective counter-affidavits.
[10] Mr. M. Debbarma, learned Addl. G.A. appearing for the State respondents had urged that though there was no earmarking of number of candidates, but it was mentioned in the advertisement dated 24.06.2008 that all appointments would be made as per Reservation Rules applicable to the State. Mr. Debbarma, learned Addl. G.A. further contended that it was true that the petitioner stood at Sl. No. 30 of the waiting listed candidates in UR category. He further submitted that total cadre strength was 141 in Group-D category and out of which, 73 posts would be filled up from UR, 24 posts from SC and 44 posts from ST. Men in position at the time of advertisement was 81, out of which 59 by UR, 12 by ST and 10 by SCs, remaining unfilled vacancies were 60 and out of which 14 were to be filled up by UR, 32 by ST and 14 by SC, so that in the total cadre strength each will get their due share.
[11] District Judiciary had filled up 25 posts by UR candidates whereas, vacancies for UR was only 14 as per Tripura Scheduled Castes and Scheduled Tribes Reservation Act, 1991 and this was done by 9 numbers of ST vacancies carrying forward in subsequent years for adjustment.
[12] Learned Addl. G.A. further contended that when the High Court in its administrative side had approved such appointments, the State did not oppose the appointment considering smooth functioning of judiciary and having not found illegalities and violation of any of the provisions of Tripura Scheduled Castes and Scheduled Tribes Reservation Act, 1991.
[13] Mr. S. Bhattacharjee, learned counsel appearing for the respondents No. 2 and 3 contended that roster /reservation was maintained on the sanctioned strength and total men in position, also maintained the backlog vacancies in the category of ST, SC and UR and not on the basis of advertised posts of 60 Group-D posts. 60 posts of Group-D were recruited at which 25 candidates were absorbed from UR category, 10 candidates were absorbed from SC category and 25 candidates were absorbed from ST category by way of maintaining seniority and 100 point roster under the undivided North Tripura Judicial District.
[14] To decide the relevant question raised in this petition, this Court may profitably take note of Article 16(4a) and (4b) is quoted herein below:
"16(4A). Nothing in this article shall prevent the State from making any provision for reservation [in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
16(4B). Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent, reservation on total number of vacancies of that year".
[15] In view of the Constitutional mandate quoted above, let me have a survey of the law laid down in this regard. I may profitably refer a decision of the Hon'ble Apex Court in R. K. Sabhawral & Others v. State of Punjab & Others, reported in 1995 2 SCC 745, relevant extracts are quoted hereinbelow:
"5. We see considered force in the second contention raised by the learned counsel for the petitioners. The reservations provided under the impugned Government instructions are to be operated in accordance with the roster to be maintained in each Department. The roster is implemented in the form of running account from year to year. The purpose of "running account" is to make sure that the Scheduled Castes/Schedule Tribes and Backward Classes get their percentage of reserved posts. The concept of "running account" in the impugned instructions has to be so interpreted that it does not result in excessive reservation. "16% of the posts are reserved for members of the Scheduled Caste and Backward Classes. In a lot of 100 posts those falling at serial numbers 1,7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87 and 91 have been reserved and earmarked in the roster for-the Scheduled Castes. Roster points 26 and 76 are reserved for the members of Backward Classes. It is thus obvious that when recruitment to a cadre starts then 14 posts earmarked in the roster are to be filled from amongst the members of the Scheduled Caste. To illustrate, first post in a cadre must go to the Scheduled Caste and thereafter the said class is entitled to 7th, 15th, 22nd and onwards upto 91st post. When the total numbers of posts in a cadre are filled by the operation of the roster then the result envisaged by the impugned instructions is achieved. In other words, in a cadre of 100 posts when the posts earmarked in the roster for the Scheduled Castes and the Backward Classes are filled the percentage of reservation provided for the reserved categories is achieved. We see no justification to operate the roster thereafter. The "running account" is to operate only till the quota provided under the impugned instructions is reached and not thereafter. Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. The percentage of reservation is the desired representation of the Backward Classes in the State services and is consistent with the demographic estimate based on the proportion worked out in relation to their populations The numerical quota of posts is not shifting boundary but represents a figure with due application of mind. Therefore, the only way to assure equality of opportunity to the Backward Classes and the general category is to permit the roster to operate till the time the respective appointees/ promotees occupy the posts meant for them in the roster. The operation of the roster and the running account" must come to an end thereafter. The vacancies arising in the cadre, after the initial posts arc filled, will pose no difficulty. As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. For example the Scheduled Caste persons holding the posts at Roster - points 1, 7, 15 retire then these slots are to be filled from amongst the persons belonging to the Scheduled Castes. Similarly, if the persons holding the post at points 8 to 14 or 23 to 29 retire then these slots are to be filled from among the general category by following this procedure them shall neither be short-fall nor excess in the percentage of reservation.
The expressions "posts" and "vacancies", often used in the executive instructions providing for reservations, are rather problematical. The word "post" means an appointment, job, office or employment. A position to which a person is appointed. "Vacancy" means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the 'vacancy' to occur. The cadre - strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of 'vacancy' has no relevance in operating the percentage of reservation.
When all the roster-points in a cadre are filled the required percentage of reservation is achieved. Once the total cadre has full representation of the Scheduled Casts/Tribes and Backward Classes in accordance with the reservation policy then the vacancies arising thereafter in the cadre are to be filled from amongst the category of persons to whom the respective vacancies belong. Jeevan Reddy, J. speaking for the majority in Indra Sawhney vs. Union of India (AIR 1993 SC 477) observed as under:-
"Take a unit/service/cadre comprising 1000 posts. The reservation in favour of scheduled Tribes Scheduled Cass and other Backward Classes is 50% which means that out Of the 1000 posts 500 must be held by the members of these classes i.e. 270 by Other Backward Classes, 150 by Scheduled Casts and 80 by Scheduled Tribes. At a given point of time, let us say the number of members of OBC in the unit/ service/ category is only 50, a shortfall of 220. Similarly the number of members of scheduled Casts and Scheduled Tribes is only 20 and 5 respectively, shortfall of 130 and 75. If the entire service/cadre is taken as as unit and the backlog is sought to be made up, then the open competition channel has to be chocked altogether for a number of years until the number of members of all backward classes reaches 500 i.e., till the quota meant for each of them is filled up. This may take quite a number of vacancies arising each year are not many. Meanwhile, the members of open competition category would become age barred and ineligible. Equality of opportunity in their case would become a mere mirage. It must be remembered that the equality of opportunity guaranteed by clause (1) is to each individual citizen of the country while clause (4) contemplates special provision being made in favour of socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed to eclipse the other. For the above reason, we hold that for the purpose of applying the rule of 50% a year should be taken as the unit and not the entire of the cadre, service or the unit as the case may be"
The quoted observations clearly illustrate that the rule of 50 % a year as unit and not entire strength of the cadre has been adopted to protect the rights of the general category under clause (1) of Article 16 of the Constitution of India. These observations in Indra Sawhney's case, arc only in relation to posts which are filled initially in a cadre. 'The operation of a roster, for filling the cadre strength, by itself ensures that the- reservation remains within the 50 % limit. Indra Sawhney's case- is not the authority for the point that the roster survives after the cadre-strength is full and the percentage of reservation is achieved.
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We may examine the likely result if the roster is permitted to operate in respect of the vacancies arising after the total posts in a cadre are filled. In a 100 point roster, 14 posts at various roster points are filled from amongst the scheduled Casts/ Scheduled Tribes candidates, 2 posts arc filled from amongst the Backward Classes and the remaining 84 posts are filled from amongst the general cat- egory. Suppose all the posts in a cadre consisting of 100 posts are filled in accordance with the roster by December 31, 1994. Thereafter in the year 1995, 25 general category persons (out of the 84) retire. Again in the 1996, 25 more persons belonging to the general category persons (out of the 84) retire. Again in the year 1996, 25 more persons belonging to the general category retire. The position which would emerge would be that the Scheduled Casts and Backward Classes would claim 16% share out of the 50 vacancies. If 8 vacancies are given to them then in the cadre of 100 posts the reserve categories would be holding 24 posts thereby increasing the reservation from 16% to 24%. On the contrary if the roster is permitted to operate till the total posts in a cadre are filled by the same category of persons whose retirement etc. caused the vacancies then the balance between the reserve category and the general category shall always be maintained. We make it clear that in the event of non-availability of a reserve candidate at the roster-point it would be open to the State Government to carry forward the point in a just and fair manner".
[16] In the instant case, the advertisement was made for filling up the posts of Group-D including part-time workers and in the remarks column of the advertisement it was mentioned that all appointments would be made as per reservation rules applicable in the State. The process, by which the posts of UR/SC/ST were absorbed, reflected in the office file maintained in this purpose which may be reflected herein below:
(a) Firstly, in pursuance of the approval of the Hon'ble High Court vide No. F.26(3)-HC/07-09/9744-46, dated 31st July, 2009 in connection with the office letter No. F.10(3)-DJ/N/2005-09/6305, dated 23.10.2009, total 16(sixteen) nos. posts of Group-D (UR-8, ST-5, SC-3) were filled up based on the decision taken in the office note No. 24, dated 07.09.2009, Note No. 25, dated 22.09.2009, Note No. 26 dated 22.09.2009, Note No. 27 dated 07.10.2009 and Note No. 29, dated 03.12.2009 in the file No. F.10(3)-DJ/N/2005-09.
(b) Secondly, as per letter of the Hon'ble High Court vide No. F.26 (3)(N)-HC/07-13/12221-23, dated 20.08.2013, total 20 (twenty) nos. posts of Group-D (UR-11, ST-6 & SC-3) were filled up based on the decision taken in the office Note No. 12 dated 24.08.2013, Note No. 13 dated 21.09.2013 in file No. F.10 (147)-DJ/N/2012 and Note No. 29 dated 24.04.2013 in the file No. F.1095)-DJ/N/2010 and Note No. 13 dated 26.09.2013 in file No. F. 10(8)-DJ/N/2006.
(c) Thirdly, vide No. F.26(3)(N)-HC/09-13/14671-72, dated 05.10.2013 of the Hon'ble High Court in connection with this office letter No. F.10(147)-DJ/N/2012/7757, dated 01.10.2013, 14 (fourteen) posts of Group-D (UR-5, ST-6 & SC-3) were filled up based on the decision taken in the office Note Nos. 19 dated 05.12.2013 in the file No. F.10 (147)-DJ/N/2010 and Note No. 45 dated 05.12.2013 in the file No. F.1095)-DJ/N/2010 and Note No. 18 dated 05.12.2013 in file No. F.10(8)-DJ/N/2006. Also vide letter No. F.26(3)(N)-HC/09-13/3227-28, dated 05.03.2014 of the Hon'ble High Court of Tripura, in connection with office letter No. F.10(9)-DJ/N/91/1327-28 dated 13.02.2014 and F.10(9)-DJ/N/91/1566, dated 20.02.2014, 5 (five) numbers more Group-D posts (UR-2, ST-2 & SC-1) were filled up based on the decision taken in the Note No. 21 dated 26.04.2014 of the file No. F.10(147)-DJ/N/2012 and Note No. 21 dated 24.05.2014 of the file No. F.10(8)-DJ/N/2006-07.
(d) Lastly, 7 nos. posts of Group-D (UR-0, ST-7 & SC-0) were filled up from the existing panel prepared in connection with advertisement dated 24.06.2008 as per approval of the Hon'ble High Court vide No. F.30 (22)-HC/2016/10453-54 dated 14.06.2016 in connection with this office communication No. F.10(147)-DJ/U/2012/3115, dated 18.05.2016 based on the decision taken in Note No. 28 dated 21.06.2016, Note No. 29, dated 22.06.2016 of the file No. F.10(147)-DJ/U/2012 and Note No. 5 dated 23.06.2016 of file No. F.10(5)-DJ/U/2015 and also Note No. 25 dated 24.06.2016 Note No. 26 dated 21.07.2016 & Note No. 27 dated 22.08.2016 of the file No. F.10(8)-DJ/N/2006-07.
[17] Further, in the instant case, total 141 in Group-D category, and out of which, 73 posts would be filled up from UR, 24 posts from SC and 44 posts from ST. Men in position at the time of advertisement was 81, out of which 59 by UR, 12 by ST and 10 by SCs. Remaining unfilled vacancies were 60, out of which 14 are to be filled up by UR, 32 by ST and 14 by SC so that in the total cadre strength each would get their due share. District Judiciary has filled up 25 posts by UR candidates whereas; vacancy for UR was only 14 as per Tripura SCs and STs Reservation Act, 1991.
[18] After detailed analysis of the filling up posts in the cadre of Group-D, I find that though number of vacancies for the UR, ST, SC category was not specifically mentioned, but in the advertisement dated 24.06.2008 it was mentioned that all appointments would be made in terms of the Tripura Scheduled Tribes and Scheduled Castes Reservation Act, 1991. As such, I am not in agreement with the learned counsel that backlog vacancies are not mentioned in the advertisement. Before 24.06.2008 i.e. on the date of advertisement, the total strength of man in position category wise as per 100 point roster is reflected in the following table:
Sanctioned strength as per 100 point roster
Man in position category wise
Vacancy Position
Required to be absorbed category wise as per 100 point roster
Total
UR
ST
SC
Total
UR
ST
SC
10
UR
ST
UR
141
73
44
24
81
59
12
10
32
32
UR
[19] Out of 60 vacant posts only 14 posts are to be filled from UR category, 32 posts from ST category and 14 posts from SC category, following the 100 point roster. Respondent No. 2 ought to have been issued offer of appointment to 14 candidates belonging to UR category, but keeping the matter as future adjustment, the respondent No. 2 issued offer of appointment to 25 numbers of candidates belonging to UR category in excess of the posts, the UR candidates were entitled to. It clarifies that 25 candidates were absorbed from ST category by maintaining seniority by operation of 100 point roster against the reserved posts earmarked for ST category candidates and 100 point roster, which was maintained under the undivided North Tripura Judicial District.
[20] After perusal of all the relevant records this Court finds that identification of each category of posts was maintained on the total sanctioned strength considering total 141 posts in the cadre.
[21] Learned counsel appearing for the petitioner submits that 31 posts are to be reserved for the UR category but, I find no force in the submission of the learned counsel appearing for the petitioner that 31 posts are to be reserved for UR category. The cadre strength is always measured by the number of posts comprising the cadre. The 25 posts were filled up from the candidates from reserved category in operation of roster from the running account maintained for each category of candidates. Total posts in Group-D category are 141. Any shortfall in filling up the posts reserved for ST category candidates will be filled up by ST category candidates till the quota meant for them is filled up. When the all roster points in a cadre are filled, the required percentage of reservation is achieved. Once the total cadre (Group-D category) has full representation by Scheduled Tribe candidates in accordance with the reservation policy, then, the vacancies arising thereafter, in the cadre are to be filled from amongst the category of persons to whom the respective vacancies belong. According to this Court, the respondents No. 2 and 3 did not commit any wrong and it is also reflected from the record that backlog vacancies have correctly being maintained for future adjustment.
[22] In view of the above observations, this Court is of the considered opinion that the respondents No. 2 and 3 did not commit any wrong and it is also reflected from the record that backlog vacancies have correctly being maintained for future adjustment. It cannot be said that those offer of appointments were issued in violation of settled principles of law. As such, the instant writ petition is bereft of merit and accordingly dismissed.