UTTAM DAOLAGUPU Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Mr. M. Sarania, learned counsel for the petitioners and Mr. D. Doley, learned Government Advocate for Assam.

(2.) The petitioners are graduates and belong to Scheduled Tribe Hills community of the State of Assam. They applied to appear in preliminary examination of Combined Competitive Examination 2013 for screening of candidates for main examination to the Assam Civil Service (Jr. Grade) and its allied services conducted by the APSC issued vide advertisement No. 6/2013 published in the Assam Tribune on 13.08.2013. In the said advertisement altogether 309 posts of ACS (Jr. Grade) sought to be filled up including other allied services out of which 90 posts were shown to be advertised for requirement to the ACS (Jr. Grade) services. In the said advertisement no post for Scheduled Tribe (H) community candidate is earmarked though there is a 7% reservation of post in services as per the provisions of Assam Scheduled Caste and Scheduled Tribe (reservation of posts in services) Act 1978 (as amended) (herein after referred as Act 1978). There ought to have been 5 posts reserved for the Scheduled Tribe (H) candidates. The respondent authority with mala-fide intention has not shown the reservation of posts for Scheduled Tribe (H) in services in the said advertisement. Accordingly, this writ petition is filed seeking for the following reliefs:-

(3.) Mr. Sarania submits that as per the Act, 1978 and the Rules 1983 made thereunder all appointment to services and posts to be filled up by direct recruitment must reserve @ 7% SC, 10% ST(P) and 5% ST(H) in the manner set out in the schedule in the vacancies reserved for the candidates belonging to the said categories. But in the subject advertisement altogether 90 posts are to be filled up by direct recruitment for the post of Assam Civil Service (Jr. Grade) but in respect of ST(H) no post has been shown as reserved. In compliance of the Central Government direction vide OM No. 36012/2/96-Estt.(Res) dated, 2nd July, 1997 issued by the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training) Govt. of India, the State of Assam amended the said Act of 1978 which was notified in the Assam Gazette on 21.08.2012 and as per the said amendment of 2012, the section 4 of the 1978 Act was substituted. As per the earlier rules, the reservation was on the vacancy based and after the amendment it was post based reservation. The respondent authority on the basis of wrong interpretation of the said amendment erroneously worked out showing the reserved posts meant for ST(H) were fully utilized giving retrospective effect of the amended provision of the Act inasmuch as the amendment came into force with effect from 21.08.2012. Prior to 2012 the reservation policy was against the vacancy based reservation and as such the required percentage of reservation ought to have been calculated on the basis of the vacancies of posts sought to be filled up by the authority on the resultant vacant posts after 21.08.2012. As per model 100 point roster the ST (H) incumbent is earmarked at post No. 10, 30, 50, 70 and 90. Even in the said post based roster also the ST(H) incumbents are at least entitled 5 post in ACS (Jr. Grade) but the respondent authority in the advertisement indicated there was no reservation post for ST(H) and SC categories for the post of ACS (Jr. Grade) due to full utilization of the prescribed percentage of reservation. There is arbitrariness in the action of the respondents to deprive the petitioners inasmuch as the amendment and the substitution in the Act 1978 has no retrospective effect and as such the roster point reserved post in services sought to be filled up by the advertisement on the basis of vacancies of post after 21.08.2012 is an arbitrary act on the part of respondents.