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Judgment
S. R. Sen, J. - Heard Mr. S. Thapa, learned counsel for and on behalf of the petitioner as well as Mr. S.P. Mahanta, learned Sr. counsel, assisted by Mr. B.S. Lyngdoh, learned counsel for the respondents.
This instant writ petition is directed against the advertisement dated 04-11-2014 published in the office notice board. The petitioner''s case in a nut shell is that:
"The Petitioner through this application under Article 226 of the Constitution of India is challenging the impugned Employment Notice No 04/EC/CB/SHG/ESTT/GEN/XIV/DE dated 04.11.2014 published in Shillong times inviting applications exclusively from the Scheduled Tribe Candidates for the Post of Peon in Cantonment Board, Shillong. Through this Writ petition the Petitioner is challenging the illegal and arbitrary action of the Respondents in reserving a single post for the ST (Scheduled Tribe) category for the post of Peon in Shillong Cantonment Board in clear contravention of the settled law as laid down in the case of Post Graduate Institute Of Medical Education And Reserch, Chandigarh v. Faculty Association And Others reported in (1998) 4 SCC 1 wherein it has been held that in a single cadre post reservation for SC''s, ST''s and OBC''s cannot be applied either directly or through roster in which vacancies are rotated amongst general category and reserved category candidates.
The Petitioner herein who has been serving in the Shillong Cantonment Board since 12.05.1992 and whose services were confirmed on 17.10.1995 is eligible for the post of peon which has been advertised vide Employment Notice No. 04/EC/CB/SHG/ESTT/GEN/XIV/DE dated 04.11.2014. But as vide Letter dated 27.4.2015 the Respondent No.3 has invited only candidates belonging to the Scheduled Tribe for appearing in the interviews to be held on 27th, 28th and 29th of May, 2015 in the Office of the Respondent No.2, the Petitioner is highly prejudiced. Being highly aggrieved by such illegal and arbitrary action of the Respondents the humble Petitioner has approached this Hon''ble Court for redressal of his genuine grievances."
Mr. S.Thapa, learned counsel for the petitioner submits that the Reservation Roster Register at annexure-4 shows that the percentage of reservation prescribes SC-1%, ST-44% and OBC-5%, so if that is followed then the unreserved category will not avail any post. Learned counsel also argued that the Reservation Roster Register was not clear and it is not in compliance with the office memorandum dated 17th November, 2011. Thus, he prays to allow the petition and necessary direction to be passed.
On the other hand, Mr. S.P. Mahanta, learned Sr. counsel, assisted by Mr. B.S.Lyngdoh, learned counsel submits that though the petitioner counsel pointed out at the Reservation Roster Register (annexure-4) for determination of reservation of quota but he has overlooked the provision in Chapter 2 of the Office Memorandum dated 17th November, 2011, i.e. "Scope of Reservation" specifically mentioned in para 2.3 and also further argued that the reservation policy differs from State to State on the basis of the population. However, reservation should not exceed more than 50% and prayed that the petition maybe dismissed.
On hearing the submissions advanced by the learned counsels for the parties at the Bar which is quoted above, I have examined the office memorandum dated 17th November, 2011. At Chapter 2.3 under the heading "Scope of Reservation", it is specifically stated at Sl.No.17 that reserved posts in Meghalaya is 1(one) for Scheduled Castes, 44 (forty four) for Scheduled Tribes and 5(five) for Other Backward Classes. Point No. 2.3 under the heading "Scope of Reservation" is reproduced herein below:
"2.3 Except in Delhi, reservation for the Scheduled Castes and Scheduled Tribes in case of direct recruitment to Group C and Group D posts normally attracting candidates from a locality or a region is generally fixed on the basis of proportion of their population in the respective States/UTs. Reservation for Other Backward Classes in such cases is fixed keeping in view the proportion of their population in the respective States/UTs subject to a limit of 27% and total reservation for SCs, STs and OBCs should not exceed 50%. Quantum of reservation fixed for SCs, STs and OBCs in such cases is indicated below:
Sl.No. Name of State/UT3 Percentage of Reservation
Scheduled Castes Scheduled Tribes Other Backward Classes
(1) (2) (3) (4) (5)
1 Andhra Pradesh 16 7 27
2 Arunachal Pradesh 1 45 0
3 Assam 7 12 27
4 Bihar 16 1 27
5 Chattisgarh 12 32 6
6 Goa 2 12 18
7 Gujarat 7 15 27
8 Haryana 19 0 27
9 Himachal Pradesh 25 4 20
10 Jammu & Kashmir 8 11 27
11 Jharkhand 12 26 12
12 Karnataka 16 7 27
13 Kerela 10 1 27
14 Madhya Pradesh 15 20 15
15 Maharashtra 10 9 27
16 Manipur 3 34 13
17 Meghalaya 1 44 5
18 Mizoram 0 45 5
19 Nagaland 0 45 0
20 Orissa 16 22 12
21 Punjab 29 0 21
22 Rajasthan 17 13 20
23 Sikkim 5 21 24
24 Tamil Nadu 19 1 27
25 Tripura 17 31 2
26 Uttaranchal 18 3 13
27 Uttar Pradesh 21 1 27
28 West Bengal 23 5 22
29 Andaman & Nicobar Islands 0 8 27
30 Chandigarh 18 0 27
31 Dadra & Nagar Haveli 2 43 5
32 Daman & Diu 3 9 27
33 Delhi 15 7.5 27
34 Lakshadweep 0 45 0
35 Pondicherry 16 0 27
On bare perusal of the Scope of Reservation, it is understood that different States in India has different Scope of Reservation. In Meghalaya the posts reserved are 1(one) for Scheduled Castes, 44 (forty four) for Scheduled Tribes and 5(five) for Other Backward Classes. On further perusal of the Reservation Roster Register, it is found that the same has been framed on the basis of the office memorandum referred above. On perusal of page 13 of the Reservation Roster Register, it is apparent that one B.R. Joshi is in service and he belongs to the general category and the question involved in this writ petition is the vacancy which arose after the retirement of one K.P. Sharma who also belong to the general category.
It is a settled principle of law that one post can never be reserved and reservation cannot exceed more than 50%. On the same line, a rule has been framed in the office memorandum under the heading "Reservation in case of a Single Vacancy". At the outset, I made it clear that a single post can never be reserved. Therefore, I believe that the Cantonment Board had to frame the rule "Reservation in case of a Single Vacancy". Point 2.17 of the same is reproduced herein below:
"Reservation in case of a Single Vacancy
2.17 In cases where only one vacancy occurs in the initial recruitment year and it, according to the scheme of reservation, is reserved for Scheduled Castes or Scheduled Tribes or OBCs, it should be treated as unreserved and filled accordingly and the reservation should be carried forward to subsequent recruitment year. In the subsequent recruitment year, even if there is only one vacancy, it should be treated as "reserved" against the carried forward reservation from the initial recruitment year, and a Scheduled Caste/ Scheduled Tribe/ OBC candidate, if available, should be appointed in that vacancy, although it may happen to be the only vacancy in that recruitment year. This provision applies to direct recruitment as well as promotion. When the vacancy is treated as reserved, it shall be filled up as per the procedure prescribed for filling up of reserved vacancies."
On bare perusal, it is understood that the respondents had made a policy of ''Reservation in case of a Single Vacancy.'' In case of a single vacancy, it should be treated as unreserved and filled accordingly and the reservation should be carried forward to make a balance in the subsequent recruitment year. In the subsequent recruitment year if only one vacancy arose, it will be treated as reserved. After going through the said policy of ''Reservation in case of a Single Vacancy'', I do not find any wrong in it.
Thus, in my view since there are two posts and one post is already occupied by a general category, in such circumstances the present vacant post should be filled up by a Scheduled Tribe candidate to maintain the balance and to give an opportunity to all. Therefore, I do not find any merit in the writ petition. Accordingly, it is dismissed. The respondents are at liberty to advertise the post as per the office memorandum dated 17th November, 2011.
With this observation and direction, the instant writ petition is dismissed and stands disposed of.