Patna High Court Terms Excess Appointments Of Chowkidar Adjusted To Reserved Category As 'Illegal'

Recently, the Patna High Court termed the appointments of Chowkidars by the East Champaran District Administration in violation of the Rules of the Roster of Reservation, as illegal.

The Court said that no appointment could be made without following the reservation roster, and making appointments over the roster would be impermissible. 

The case relates to the appointments of chowkidars where due to excess appointments made earlier, the district administration didn't make the appointments as per the reservation which ought to be implemented year to year. In other words, the quota fixed for the reserved category candidates was reduced to nil because of excess appointments done in the reserved category of Schedule Caste and Backward Classes.

It was contended by the petitioners that the non-inclusion of vacancies in Scheduled Caste and Backward Class categories in the list of vacancies of Chowkidars discriminates the candidates belonging to the reserved category as well as Articles 14 and 16 of the Constitution of India.

Further, it was contended that the excess appointments shown against the said category of Scheduled Caste and Backward Class are all illegal appointments, contrary to the rules, as no details of such appointments have been provided. Vacancies declared under the 2017 advertisement cannot be allowed to be filled up by such illegal appointments made earlier and as such the Respondents wrongly approved the recommendations and published the final list, declaring vacancies in the reserved post of Scheduled Caste and Backward Class as nil on the ground that there were excess appointments previously of 61 Chowkidars in the category of Scheduled Caste and 183 excess appointments were made in the category of the Backward Class.

The petitioner referred to the recent case of the State of Punjab v. Davinder Singh & Ors. where the Supreme Court upon placing on the case of R.K. Sabharwal v. State of Punjab [1995 SCC (2) 745] held that reservations must operate in accordance with the roster maintained in the department which will be a running account every year to ensure that there is no excessive reservation.

The respondent/District Administration justified such appointments by contending that on the date of appointment of Chowkidar, the reserved posts under Scheduled Caste and Backward Class were found exhausted as excess candidates were working in those categories. Those excess candidates were adjusted from the admissible vacancies of the unreserved category. Thus, the rule of reservation had not been flouted and no irregularity was done in the process of filling up vacancies.

High Court's Observation

The bench comprising Justice Bibek Chaudhuri rejected the respondent's argument that the excess appointments that were made had not violated the policy of reservation because the excess appointees were adjusted to their respective categories. 

Instead, the Court while referring to RK Sabharwal's case (supra) observed that the vacancies are to be filled up taking a year as a unit, wherein the number of candidates belonging to each category against which posts/vacancies have occurred, is to be filled up by the member of the said category.

“As for example, since the advertisement was published in the year 2017 for recruitment on the post of Chowkidars and 141 posts were found to be vacant, total number of 141 posts did not surely fall vacant in the year 2016-17. The posts of reserved category are to be assessed taking into account a particular year as a unit. After having such exercise, the vacant post of a particular category is to be decided on the basis of roster points. In other words, if a post in the roster falls vacant belonging to the category of Extremely Backward Class, the said post will be filled up by the candidate of Extremely Backward Class only and not by any other class.”, the court said.

Since there was no roster prepared and maintained by the District Administration which led to the illegal appointments indiscriminately to fill up the vacant posts, thus the Court directed the respondents to do the following as needful:

“(a) The District Administration, East Champaran shall prepare the cadre of Chowkidars on the basis of reservation and roster points and such roster shall be revised year to year, i.e., every year as on 31st December of the previous year.

(b) Vacancy in Group D post of Chowkidar shall be declared year to year in respect of the vacancies of each category of posts that falls vacant at the end of a particular year, i.e., on 31st December of the previous year.

(c) Vacancy shall be declared on the basis of roster point taking into consideration the reservation policy declared in 1991 Act. The newly appointed candidates shall acquire the vacant post in the roster on the basis of their selection, meaning thereby they cannot be put below the candidates, who are working en bloc.

(d) In respect of the 141 vacancies, the District Administration shall take the similar exercise as mentioned in Points No. (a), (b) and (c) and declare the vacancy taking into account 50% of unreserved candidate and 50% of reserved category of the vacancy and rewrite the vacancy position as per their percentage of reservation and they shall consider as to whether the petitioners will come within the zone of consideration or not. Such exercise shall be done within three (03) months from the date communication of the order.”

The Petition was disposed of with the aforesaid directions.

Appearance:

For the Petitioner/s: Mr. Ashish Giri, Advocate Mr. Sumit Kumar, Advocate Ms. Riya Giri, Advocate, Mr. Vijay Shankar Shrivastava, Advocate, Ms. Rashmi Jha, Advocate

For the Respondent/s: Mr. Manish Kumar, GP-4 Mr. Ajay Kumar, AC to GP-4, Mr. Md. N.H. Khan (SC1), Mr. Manish Kumar ( GP 4 ) 

Case Title: Vindeshwar Paswan & Ors. Versus State of Bihar & Ors., Civil Writ Jurisdiction Case No. 14323 of 2022 (and other connected cases)

Citation: 2024 LiveLaw (Pat) 66 

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