The court held that mandatory reservations for women under the Assam Act must be strictly adhered to, despite procedural irregularities, emphasizing legislative intent for wider women's participation in government services.

JUDGMENT :

DEVASHIS BARUAH, J.

Heard Mr R Islam, the learned counsel appearing on behalf of the petitioner. Mr H K Das, the learned Standing Counsel appears on behalf of the respondent Nos. 2 and 3, and Mr S Das, the learned counsel appears on behalf of the respondent No. 5. Mr K R Gogoi, the learned Government Advocate, Assam appears on behalf of the respondent Nos. 1 and 4.

2. The petitioner, herein, is aggrieved by the selection and appointment of the respondent No. 5, to the post of Process Server, in spite of the fact that the petitioner secured higher marks in the Economically Weaker Section (EWS) category.

3. To appreciate the case set out by the petitioner, this Court finds it relevant to take note of the brief facts, which led to the filing of the present writ petition. The District and Sessions Judge, South Salmara, i.e. the respondent No. 3, had issued an advertisement on 21.10.2022, for filling up of 3 (three) vacant posts. One post was earmarked for General category, the second was reserved for MOBC/OBC, and the third post was reserved for EWS. There is no mention in the advertisement that any of these posts is reserved for women, though was required under the Assam Women (Reservation of Vacancies in Services and Posts) Act, 2005 (hereinafter, referred to as “the Act of 2005”), which was duly applicable.

4. Before moving forward, this Court now finds it relevant to take note of a Judgment of the learned Division Bench of this Court in the case of Nilima Das –Vs- State of Assam and Others ; reported in 2018 (2) GLT 924, wherein the learned Division Bench of this Court dealt with the Act of 2005 and its implications. Paragraphs 13 to 17 of the said Judgment, being relevant, are reproduced hereinunder:-

“13. The 2005 Act is a statutory enactment providing for reservation of vacancies in services and posts for women in the State of Assam. Section 4 of 2005 Act is the substantive provision. It says that at the commencement of this Act, 30% 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 women candidates. ‘Establishment’ has been defined under Section 2(b) of the 2005 Act to mean, amongst others, any office of the State Government. As per the first proviso, reservation for women shall be inclusive of reservation provided for the Scheduled Castes, Scheduled Tribes and Other Backward Classes etc. As per the second proviso, 30% reservation of the vacancies in respect of women of the remaining unreserved categories shall be available to the women of unreserved category only.

14. As per Section 6 of the 2005 Act, if any appointing authority makes any appointment in contravention of the provisions of Section 4 , he shall be liable to be punished with fine which may extend to rupees one thousand and also liable to face disciplinary proceeding.

15. A conjoint reading of Sections 4 and 6 of the 2005 Act would go to show that provisions for providing reservation for women to the extent of 30% of the vacancies is of mandatory character, non-compliance of which would invite penal consequences, besides disciplinary action. That apart, use of the expression “shall” in both the provisions i.e. in Sections 4 a