Shri Vikas J. Kamble vs State of Goa and Others

R.C. Chavan, J.—By this petition, the petitioner seeks mandamus directing respondents No. 1 to 4 to consider the petitioner to the post of Upper Division Clerk as per instructions issued by the Government, as also a direction that appointments of respondents No. 5 to 10 be quashed.

It is not in dispute that the petitioner belongs to Scheduled Caste, but he was appointed as Lower Division Clerk against an open post. Respondent No. 4 Municipal Council was required to fill up the post of the Upper Division Clerk. Since, according to the roster point the first position would go to Scheduled Caste candidate, the petitioner staked his claim for the post of Upper Division Clerk on the plea that he belongs to Scheduled Caste. Respondent No. 4 refused to consider the petitioner for the post of Upper Division Clerk against the Scheduled Caste vacancy for which backlog existed as the petitioner had been appointed under open category and so he was not entitled for appointment to the post against roster point. Respondent No. 4 promoted respondent No. 5, a candidate belonging to the general category as also respondents No. 6 to 10 to the said post as and when occasion to fill vacancies arose. Aggrieved thereby, the petitioner has approached this Court.

We have heard Mr. Godinho, learned Counsel for the petitioner, Mr. Nadkarni for respondent No. 4 and Mr. Ambekar for respondent No. 5. The learned Counsel for the petitioner submitted that this issue has already been concluded by a Judgment of this Court dated 9.10.98 in Shri Manohar V. Parwar v. State of Goa and others, (Writ Petition No. 408 of 1992) following the Judgment of the Apex Court in R.K. Sabharwal and others Vs. State of Punjab and others, as regards following a roster in the appointment of candidates in the reserved category.

The contention that because the petitioner sought initial appointment against general category post he could not be considered for promotion against reserved vacancy, raised by respondent No. 4 in its affidavit in reply, has to be rejected. A candidate belonging to the reserved category may be appointed on his own merit against a post meant for a general candidate. This is only to ensure that the candidates belonging to the reserved category are not restricted to the number of posts reserved for them, and meritorious amongst them get appointed on open posts. This does not mean that a candidate has to give up his status as belonging to Scheduled Caste for all times to come during his employment. Therefore, the respondent Municipality was not justified in refusing to consider the petitioner''s claim for appointment to the post of Upper Division Clerk, which, according to the roster point, was reserved for scheduled caste candidates. Respondent No. 4 Council seems to have refused to consider the case of the petitioner on the basis of the clarification received from the Government on 19.4.1995 (Annexure L), which is against the spirit of reservation policy, as also the directions which came to be subsequently issued R.K. Sabharwal and ors. v. State of Punjab and ors. (supra).

Entitlement of the petitioner to be considered for a vacancy available in Scheduled Caste category under roster point would not mean that he should be appointed straightaway in place of respondent No. 5 (or respondents No. 6 to 10) who have already been appointed to the promotional posts. The petitioner would be entitled to be considered for appointment, and may be appointed to the post if he is otherwise eligible. This observation has to be made since respondent No. 4 Municipal Council has pointed out in their affidavit in reply at para 4 that the petitioner is under a cloud and there is accusation of offences punishable under Sections 467, 468, 466, 471, 470, 465 read with 120(b) of the Indian Penal Code, pending against the petitioner.

On behalf of respondent No. 5 it was submitted that when petitioner became eligible for being considered, the roster point meant for scheduled caste was not available. This is a factual aspect which would have to be considered by the appointing authority. However, prima facie from the roster titled as Appendix 4 and duly authenticated by respondent No. 4''s Chief Officer, annexed to the petitioner''s rejoinder, would show that petitioner is the only scheduled caste candidate and the said vacancy in the roster is marked for scheduled caste candidate.

In view of this, respondent No. 4 Municipal Council shall review the entitlement of the petitioner to be appointed as Upper Division Clerk against the post which was available for Scheduled Caste under the roster point at the relevant date by constituting a review D.P.C. Other prayers of the petitioner cannot be granted since the petitioner''s entitlement to appointment cannot be adjudicated.

In view of this, Rule is made absolute in terms of prayer Clause (a) to the extent indicated above. Petition disposed of. No order as to costs.