2019 Supreme(Gau) 981

IN THE HIGH COURT OF GAUHATI
N. Kotiswar Singh, J.
Arup Manta and Another – Appellants
Versus
State of Assam and Others – Respondents
Writ Petition (Civil) Nos. 3931, 4200, 7555, 7652 of 2017, Interlocutory Application (Civil) No. 2121 of 2018
Decided On : 05-09-2019

Headnote:

Constitution – Articles 14 16 – Assam Forensic Science Laboratory Services Rules, 1985 (Service Rules) – Rule 5 6 12, 13 14 16(1) 17 18 – Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancy in Services and Posts) Act, 1978 (Reservation Act) – Section 5(A) – Assam Women (Reservation of Vacancies in Services and Posts) Act, 2005 – Section 4 – Assam Forensic Science Laboratory Service Rules, 1995 – Rule 5 – Reservation In Direct Recruitment of Service – The petitioners, all of whom belong to unreserved category, have challenged the recruitment process initiated by the advertisement issued by the Assam Public Service Commission for recruitment to 4(four) posts in the cadre of Deputy Director in the Assam Forensic Science Laboratory Service by way of direct recruitment, contending that reserving one post for Scheduled Tribe (Plains) [STP] is illegal – The reason on the basis of which the petitioners have made the aforesaid claim is that since the aforesaid posts of Deputy Directors are sought to be filled up by the Department by direct recruitment, as required under the rules, the authorities were under obligation to follow the roster points provided for direct recruitment – Referring to the aforesaid reservation rules, learned senior counsel for the petitioners has submitted that if the authorities had opted to resort to direct recruitment in respect of the aforesaid four posts of Deputy Directors under the relevant recruitment rules, as provided under the relevant reservation rules, as applicable in the State of Assam, the roster meant for direct recruitment would have been applicable – According to the petitioners, since, this is the first time that the Government has resorted to direct recruitment process, the first three posts are to be unreserved and fourth post is to be reserved for OBC – Hence, reservation for STP as per the aforesaid advertisement is illegal and liable to be set aside – Held, From the above, what one can ascertain is that there can be two sets of rosters, one for direct recruitment and another for promotion. Thus, cadre for the purpose of reservation can consist of two categories of posts which are to be filled up on the basis of particular method of recruitment, viz. direct recruitment and promotion – Hence, two separate rosters, one for direct recruitment and another for promotion have to be maintained as provided under Sub-Sections (iv) and (v) of Section 5A of the Reservation Act, referred to above, even if these posts form a single cadre under the relevant Service Rules – In other words, all the procedures and provisions of law required to be followed for effecting direct recruitment must be given effect to unless specifically prohibited under the rules – In the same manner, if there be any specific reservation rules framed for direct recruitment, the same must be also followed – In the present case, as discussed above, there are specific provisions for maintaining reservation in direct recruitment as provided under Sub-Sections (iv) and (v) of Section 5A of the Reservation Act referred to above – Hence, the aforesaid provisions of the Reservation Act have to be followed also – There cannot be any escape from the aforesaid provision of the reservation statute – In other words, as far as the roster for promotion is concerned, if these four posts had to be filed up by promotion, the roster maintained for promotion will be followed – However, if these are to be filled up by direct recruitment, the roster meant for direct recruitment has to be followed – In the present case, even if this is for the first time that direct recruitment has been resorted to, the roster for direct recruitment as provided under the Reservation Act has to be applied and followed from the very beginning and which will be continued as and when recruitment is made by direct recruitment in future – Thus, the rosters points prepared for promotion and direct recruitment have to be maintained and followed as provided under Section 5A of the Reservation Act, and to be applied depending upon the nature of recruitment being made – This Court would accordingly hold that in view of the specific provisions of Section 5A referred to above, there can be no escape from the obligation to maintain separate roster for direct recruitment – For the reasons discussed above, this Court without any hesitation would hold that the impugned advertisement issued by the Assam Public Service Commission for recruitment to 4(four) posts in the cadre of Deputy Director in Assam Forensic Science Laboratory Service by way of direct recruitment is not tenable in law and accordingly, it is set aside – The respondents authorities would be required to advertise these posts again by following the roster points meant for direct recruitment as provided under Section 5A of the Reservation act after properly identifying the port/posts for any particular reserved category, after applying a reasonable criteria for doing the same as directed above – Further, the State respondents are also required to reserve 30% of the said posts for women as provided under the Assam Women (Reservation for Vacancies in Services and Posts) Act, 2005 – In the result, for the reasons discussed above, all the writ petitions, are allowed, by setting aside the impugned orders/actions of the Official Respondents – All Writ Petitions Allowed