2023 Supreme(Pat) 55

IN THE HIGH COURT OF JUDICATURE AT PATNA
SANJEEV PRAKASH SHARMA, J.
Dr. Amod Prabodhi Son of Devendra Prasad Singh – Appellant
Versus
The State of Bihar – Respondent
Civil Writ Jurisdiction Case No.8932, 8817 of 2020, Civil Writ Jurisdiction Case No. 433 , 5853 of 2021, Civil Writ Jurisdiction Case No. 17074 of 2022, Civil Writ Jurisdiction Case No. 226 of 2023
Decided on : 24-02-2023

Headnote:

Bihar Reservation of Vacancies in Posts and Service (For Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1991 – Section 4 – Rights of Persons with Disabilities (RPWD) Act of 2016 – Sections 3 and 34 – Constitution of India – Article 16 (4-B) – Appointment on posts of Assistant Professors – Wrong application of reservation quota – Post of Assistant Professor is a specialized post, where concerned person teaches students for awarding of Graduate and Post-Graduate degrees – Application of roster and reservation has to be done with utmost care and caution – Recruitment agency has to separately earmark backlog vacancies as a separate class and fresh vacancies have to be marked separately – In present selection process, University Commission was required to have a separate class of backlog posts which would include 25% vacancies which were not recruited and any post of reserved category which could not be filled under 2014 selection process – These posts alone can be said to be backlog posts – In order to find backlog posts, it was essential for respondents to have first identified all Assistant Professors appointed earlier on their own merit from reserved category – Such Assistant Professors who may be belonging to a particular category were not to be included in slot for treating slot to have been filled of said category – Relying upon total number of persons who have already been appointed from a particular reserved category, backlog cannot be assessed – State Government has created a situation where almost 70% of posts fall in Reserved Category. (Paras 23, 26, 27 and 29)

University Law – Appointment on posts of Assistant Professors – Wrong application of reservation quota – All posts existing in various Universities will have to be counted together as one unit for the purpose of application of roster – Horizontal and vertical reservation has to be applied to total number of posts in a particular subject and cannot be applied segregating post available in a particular University of a particular subject – In present selections, State did not earmark backlog vacancies separately for various subjects and intermingled it with current posts – Selection process of filling up backlog posts along with Open Category posts as has been done in present case by respondent University is erroneous and faulty – 10% reservation of total number of Open Category posts were required to be marked exclusively for E.W.S. category – However, same has been bifurcated by respondent to different Universities making them as separate units – Action of bifurcating E.W.S. reservation, to ensure each University treating as a separate for each subject, is illegal as it frustrates very purpose of introduction of reservation for Economically Weaker Section – Action of respondents in reserving posts for Disabled Category which results in frustrating to provide for 4% reservation held to be illegal and unjustified – Writ Petition allowed with directions. (Paras 30, 31, 35, 36, 38, 39, 42, 44, 46, 47 and 48)

Service Law – Appointment – It is duty of State to see that litigation as against it is reduced – State authorities must create a separate legal cell consisting of a separate cadre who would provide legal advice to State executive authorities with regard to application of Judgments and procedure to be followed in consonance with law for making recruitments and appointments in State and subordinate services – Judgments passed by High Court which have attained finality on any question of law are required to be followed in subsequent actions. (Para 41)