2018 Supreme(Pat) 269

IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH, J.
Dr. Sudhir Kumar son of Dr. Awadhesh Prasad Singh & Ors. - Petitioners
Versus
The State of Bihar, through the Principal Secretary, Department of Health & Ors. - Respondents
Civil Writ Jurisdiction Case No. 9084 of 2017
Decided On : 02-04-2018

The carry forward principle or backlog vacancies for the purpose of filling up the posts reserved for reserved category candidates, which remained unfilled because of non-availability of the suitable reserved category candidates is only with reference to previous recruitment year(s) and not otherwise.

Headnote:

The writ application involves a question of seminal significance pertaining to computation of backlog vacancies meant for reserved category candidates, in the matter of appointments to the posts of Assistant Professors in various departments of medical colleges and hospitals under the Health Department, State Government of Bihar.

Fact of the Case:

The advertisement, dated 24.04.2017, which has been brought on record by way of Annexure-1 to the writ application, shows that altogether 1171 posts have been advertised in 25 departments and in respect of some of the departments, the posts which have been shown reserved for different reserved category candidates, is much more than 50 per cent.

Finding of the Court:

The main thrust of challenge of the petitioners on the point of providing disproportionate reservation in favour of reserved category candidates is wrong and illegal calculation of backlog vacancies. They contend that the State-respondents ought to have considered only such vacancies as backlog vacancies, which remained unfilled in the past selection processes.

Issues: 1. Whether the method adopted by the State-respondents in fixing and advertising the number of reserved posts as backlog vacancies is against the basic concept of the carry forward rule which presupposes previous recruitment processes in which the reserved posts were advertised, but remained unfilled because of non-availability of suitable candidates. 2. Whether the statutory prescription under the 1991 Act for determination of backlog vacancies has been breached. 3. Whether the excessive reservation beyond 50 per cent in one recruitment year without any valid reason will have adverse impact on merit and will be against public interest. 4. Whether the method adopted by the State Government in calculating the backlog vacancies, as disclosed in the counter affidavit, is arbitrary and erroneous?

Ratio Decidendi: 1. The question of carry forward rule of reservation would arise only when the reserved vacancies remain unfilled from amongst the candidates in whose favour the provision of reservation has been made, in a completed process of selection in past due to their non-availability. 2. There are, thus, two most basic and fundamental requirements for determining the backlog vacancies by applying the principle of carry forward, viz. (i) existence of posts reserved for a particular category in the past and (ii) such posts having remained unfilled from amongst the candidates of respective reserved categories, despite completion of the process of selection, due to non-availability of such candidates. 3. The scheme, in sub-Section (6) has, apparently, a very important public purpose to achieve, which is to ensure that the posts do not remain unfilled only on the ground of non-availability of the candidates belonging to a particular class/category by filling up such posts either by applying the formula of exchange or even if it fails, by de-reserving the posts and thereby filling up the posts by general candidates. 4. There is no scintilla of doubt upon plain reading of the provisions under Sub-Section (6) of Section 4 of the 1991 Act that carry forward principle or backlog vacancies for the purpose of filling up the posts reserved for reserved category candidates, which remained unfilled because of non-availability of the suitable reserved category candidates is only with reference to previous recruitment year(s) and not otherwise.

Final Decision: 1. The impugned advertisement of the Bihar Public Service Commission inviting applications for appointment to the posts of Assistant Professor, to the extent it provides for reservation in superspeciality departments, namely, Cardiology, Nephrology and Neurology, cannot be sustained, in view of the Supreme Court’s decisions, in the cases of Indra Sawhney (supra), and Dr. Preeti Srivastava (supra). The Bihar Public Service Commission is accordingly directed to proceed with the process of selection purely on the basis of merit for appointment in these superspeciality departments. 2. In view of clear language used in Section 4 of the 1991 Act, only those vacancies can be declared backlog vacancies within the reserved category, which, though, were subject matter of a previous advertisement, but remained unfilled because of non-availability of suitable candidates, within the reserved category, after selection. No vacancy, which has not been subjected to a complete process of selection could be treated as backlog vacancy, in view of the law laid down by the Supreme Court, in the case of Sagam Nath Pandey (supra). 3. The State of Bihar is directed to identify the year-wise backlog vacancies to be filled up by reserved category candidates in conformity with the conclusion recorded hereinabove, within one month from today and communicate the same to the Bihar Public Service Commission forthwith. 4. Since the selection in question pertains to appointment of skilled Doctors for teaching and providing health services to the common mass, in Government medical colleges and hospitals in the State of Bihar, which is of immense public interest and importance, it is directed that if the said exercise is not done within the aforesaid period of one month, the Bihar Public Service Commission will be required to proceed with the process of selection and make recommendation of names on the basis of reservation quota fixed under Section 4(i) read with Section 4(ii) of 1991 Act. This Direction, I am issuing in view of the emergent situation prevailing in the State of Bihar where many of the medical colleges and many courses in the medical colleges are either facing threat of de-recognition by the Medical Council of India or unable to get recognition because of the lack of teachers/faculty members. 5. The Bihar Public Service Commission is directed to make selection for appointment in superspeciality departments of Cardiology, Nephrology and Neurology, strictly on the basis of merit alone.