JUDGMENT

Ajai Lamba, C.J. - This writ appeal has been carried against judgment dated 26th April, 2018 rendered in Writ Petition (C) No.6410 of 2012, titled 'Kakumoni Borah Vs. State of Assam and others', at the instance of State of Assam, Commissioner and Secretary, Government of Assam, Health and Family Welfare Department and two others.

2. The respondent/writ petitioner filed a writ petition on the premise that she belongs to Other Backward Class Community. Advertisement dated 28.07.2009 was issued inviting applications for four(4) posts of Lower Division Assistant under Directorate of Health Services (FW). One post was reserved for Scheduled Tribe (Plains) [ST(P)]; one post for Other Backward Class/More Other Backward Class (OBC/MOBC); one post for Scheduled Caste (SC) and one post for Unserved/General category. The advertisement further mentioned 30% reservation of vacancies of the posts as per Women's Reservation Act, 2005.

3. The respondent/writ petitioner responded to the advertisement, claiming herself to be eligible. The respondent/writ petitioner competed for one post through the written test, which she passed. The respondent/writ petitioner also appeared in interview/viva-voce. There were twenty-two(22) candidates in all including the writ petitioner. The writ petitioner claims to have done well, however, no result were declared. Subsequently, the respondent/writ petitioner came to know that the four(4) posts had been filled up. An application under Rights to Information Act was filed whereupon she was informed that she had not been selected.

The writ petition essentially was filed with the claim that effect of 30% reservation was not given under Assam Women (Reservation of Vacancies in Services and Posts) Act, 2005 (for short 'the Act of 2005'). All the posts have been filed up from amongst men.

4. By virtue of the impugned judgment, the Writ Court directed the State to appoint the petitioner against the post reserved for OBC category candidates with effect from 30th September, 2010, viz. the date on which the private respondents were appointed; the pay of the petitioner would be notionally fixed from that date, however, she would not be entitled to claim arrear of salary or seniority for the purpose of promotion. It was further directed to create supernumerary post to accommodate Respondent No.8, who had already been selected and appointed, so as not to affect his rights.

5. Mr. D. Saikia, learned counsel for the appellant State and Mr. B.D. Konwar, learned senior counsel for the respondent/writ petitioner are add idem that the post itself relates to year 2010. A decade has gone by and the clock cannot be turned back and, therefore, a reference be only made to the cadre strength. In case the reservation under the Act of 2005 has not been given effect, the claim of respondent/writ petitioner be considered in terms of the law.

6. Having considered the fair stand of the appellant State, and as projected by Shri D. Saikia, we hereby refer to the additional affidavit filed on behalf of Respondent No.2 (Director of Health Services) Smti. Mallika Medhi, sworn on 6th August, 2019. In para-3 of the affidavit, it has been clarified that the total number of sanctioned posts of L.D. Assistant under the Directorate of Health Services, Assam, is 48 (Forth Eight) and the total strength of L.D. Assistant is 37 (Thirty Seven) at present. Out of 37, 10 women are serving. Under the circumstances, under the Act of 2005, there is a margin to accommodate two more women to give effect to the reservation.

7. Having considered the fact situation, we would like to extract Section 4 of the Act of 2005, which reads as under :

"Reservation for women in vacancies to be filled up by direct recruitment- At the commencement of this Act, 30 percent of the vacancies in respect of all appointments to the services and posts in the establishment which are to be filled up by direct recruitment shall be reserved for the women candidates.

Provided that th