PARITOSH SAHA Vs. STATE OF TRIPURA

JUDGEMENT

(1.) The petitioners are the Degree holder Assistant Engineers in the Public Works Department of the Govt. of Tripura and they were appointed during the year 1979. The petitioners are the members of the Tripura Engineering Service. There are 69 posts in the Grade of Executive Engineer in the Tripura Engineering Services out of which 70% of the posts are to be filled up by promotion from the Degree holder Assistant Engineers and 30% of the posts are to be filled up from Diploma holder Assistant Engineers. Accordingly, out of 69 posts of Executive Engineer, 48 posts are to be filled up by Degree-holder Assistant Engineers and 21 by Diploma-holder Assistant Engineers.

(2.) It is stated that the Government has prepared the Inspection Report of 100 point roster in respect of the posts of Executive Engineer to be filled up by Degree holder Assistant Engineers. The Inspection Report has been prepared by the Tribal Welfare Department of the State Government on 26.2.99. A copy of the said Inspection Report has been furnished by the petitioners at the time of hearing of the case and the same will form a part of this record and for convenience it is marked as Annexure-'X'. According -to the Inspection Report (Annexure-X) at present there are 21 vacancies in the post of Executive Engineer, which are to be filled up by Degree holder Assistant Engineers. According to Annexure-X all the 21 posts of Executive Engineer have been reserved to be filled up by SC and ST candidates. It has been shown in the report that during the year of recruitment current vacancies to be filled up by SC and ST candidates are 3 and 7 respectively whereas the backlog vacancies to be filled up by SC and ST candidates are 5 and 13 respectively. Thus all the 21 vacancies have been reserved to be filled up by SC an ST candidates from amongst the Degree holder Assistant Engineers. The petitioners have challenged the reservation policy of the State Government. It is asserted that the Government can not reserve any post in a particular recruitment year in excess of 50% of the total vacancies. It is also stated that in the past in every year of recruitment the Government reserved more than 50% posts to be filled up by SC and ST candidates. Thus the petitioners, who have earned their eligibility long back, are being deprived from getting their promotion in the posts of Executive Engineer. It is further asserted that; the promotion rules as well as the Tripuraj Engineering Service Rules provide that no reserve category candidate should be considered by the D.RC. who do not come within the zone of consideration. It is alleged that the Government is not following the Rule of zone of consideration and are promoting the SC and ST candidates, who do not even come within the zone of consideration. Thus an injustice is being done to the general category candidates who inspite of acquiring the eligibility for promotion are being deprived in the name of reservation. The petitioners, therefore, prayed that [the respondent Government be directed not to fill up the vacancies of the post of Executive Engineer (Civil) more than 50% by reserved category candidates in a particular year of recruitment. The petitioners also prayed for a direction to the respondent Government to fill up the remaining :50% of the posts by eligible general category candidates. It is further alleged that the Government adopted a pick and choose method for filling up the posts of Executive Engineer by SC and ST candidates by resorting to ad-hoc arrangement. Even though these SC and ST candidates are much below in the seniority list than the petitioners, they are being appointed on ad-hoc basis in the posts of Executive Engineer. The petitioners, therefore, claimed that this system of ad-hoc arrangement for filling up the posts by junior SC and ST candidates be discontinued forthwith.

(3.) The State respondents by filing a counter-affidavit have denied the allegations made by the petitioners in their writ petition. It is stated in the counter-affidavit that the respondents are taking steps for filling up the posts of Executive Engineer both by Degree-holder and Diploma-holder Assistant Engineers in accordance with the decision of the Supreme Court and High Court. It is further stated that the number of posts to be filled up by Degree-holder Assistant Engineers and Diploma-holder Assistant Engineers in the posts ;of Executive Engineer has been worked out and the dispute has been settled by this court by an order dated 8.12.95 passed in Misc. Case No. 723/95 arising out of Civil Rule No. 539 of 1995. There is no dispute about the number of posts'to be shared by Degree-holder and Diploma-holder Assistant Engineers in the Grade of Executive Engineer and this question has been finally settled by the High Court. Ultimately an appeal was filed against the judgment and order passed in Civil Rule No. 539 of 1995 and the judgment was stayed in Writ Appeal No. 211 of 1996 on 27.9.96. After the stay order the SC/ST Department of the Government of Tripura prepared a separate Inspectiaa Report for 100 point roster in accordance with the provisions of the Tripura Engineering Service Rules. According to the Annexure- R/7 of the counter-affidavit the Department worked out that 20 vacancies in the post of Executive Engineer are to be filled up by Degree holder Assistant Engineers and 6 vacancies are to be filled up by Diploma holder Assistant Engineers and the Government reserved all the 20 posts of Executive Engineer to be filled up by Degree holder Assistant Engineers belonging to SC and ST category. It is also stated in the counter-affidavit that the Government has prepared the Inspection Report of 100 point roster in accordance with the provisions of the Tripura Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1991 and as per the provisions of the aforesaid Act the backlog vacancies reserved for SC and ST, but filled up by general category candidates, are to be carried forward and after carrying forward of all the backlog vacancies reserved for SC and ST, all the 20 vacancies have been reserved to be filled up by SC and ST candidates. At present the vacancies in the Grade of Executive Engineer to be filled up by Degree holder Assistant Engineers have risen to 21 and as per the latest inspection of 100 point roster prepared by the SC and ST Department, all the 21 posts of Executive Engineer have been reserved to be filled up by SC and ST Degree-holder Assistant Engineers. It is further stated in the counter that in promotion more than 50% posts can be reserved for SC and ST candidates and there is no illegality in reserving posts in excess of 50% in any recruitment year. It is, therefore, asserted by the respondent Government that there is no illegality in reserving all the 21 posts of Executive Engineer to be filled up by SC and ST candidates.