Mitali Nath vs The State Of Assam And 12 Ors. (B)
2022 Latest Caselaw 677 Gua

                                                                   Page No.# 1/9

GAHC010123172018




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/4162/2018

         MITALI NATH
         (ROLL NUMBER 56100), D/O- DINESH NATH, R/O- ANANDA PUR, P.O.-
         NITYANADA, DISTRICT- BARPETA, ASSAM. PIN- 781329



         VERSUS

         THE STATE OF ASSAM AND 12 ORS. (B)
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
         GOVERNMENT OF ASSAM, FOREST DEPARTMENT, DISPUR, GUWAHATI,
         ASSAM. PIN- 781006

         2:THE PRINCIPAL CHIEF CONSERVATOR OF FOREST AND HEAD OF
         FOREST FORCE

          ASSAM ARANYA BHAWAN
          PANJABARI
          GUWAHATI
          ASSAM. PIN- 781037

         3:THE CHIEF CONSERVATOR OF FOREST (H.Q)

         OFFICE OF THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS AND
         HEAD OF FOREST FORCE
         ASSAM
         ARANYA BHAWAN
         PANJABARI
         GUWAHATI
         ASSAM. PIN- 781037

         4:ADDITIONAL PRINCIPAL CHIEF CONSERVATOR OF FOREST
         ADMINISTRATION AND VIGILANCE AND CHAIRMAN
                                                        Page No.# 2/9

SELECTION COMMITTEE FOR THE POST OF FORESTER GRADE-I

5:SRI SAHIDUL ISLAM

ROLL NO-74915

S/O- SYED DERAJ ALI
R/O- RANGIA
MURARA-KAKIGAON
DISTRICT- KAMRUP (RURAL)
GUWAHATI. PIN- 781354

6:SRI NILAMONI TALUKDAR
 ROLL NO. - 58150

S/O- NIKUNJA TALUKDAR
R/O- VILLAGE AND P.O.- CHENGA
DISTRICT- BARPETA
ASSAM. PIN- 781305.

7:SRI DIPJYOTI DAS
 ROLL NO.- 15160

S/O- LATE HEM CHANDRA DAS
R/O- VILLAGE AND P.O.- ABHAYAPURI
DISTRICT- BONGAIGAON
ASSAM. PIN- 783386

8:SRI MRIGEN NARAYAN BAGAWATI
 ROLL NO.- 39198

S/O- BHUDEN BHAGAWATI
R/O- MANGALDOI
SONALI PUMP
WARD NO. 7
TENGABARI
P.O.- CHAPAI
DISTRICT- DARRANG
ASSAM. PIN- 784529

9:SRI KALPAJIT DUTTA
 ROLL NO.- 47310

S/O- GHANAKANTA DUTTA
R/O- POLY ROAD
ANAND NAGAR
P.O.- ITACHALI
DISTRICT- NAGAON
                                                  Page No.# 3/9

             ASSAM. PIN- 781303

            10:SRI NARUAL ISLAM

             ROLL NO.- 63677
             S/O- NIZAMUDDIN AHMED
             R/O- VILLAGE- BIHAMPUR
             P.O.- MULAKUCHI
             DISTRICT- NALBARI
             ASSAM. PIN- 781303.

            11:SRI DHARMENDRA KALITA
             ROLL NO.- 71598
             R/O- BAUSHI
             P.O.- TETELIA
             DISTRICT- KAMRUP (RURAL)
             GUWAHATI. PIN- 781104

            12:SRI SARIFUL RAHMAN

             ROLL NO.- 14381

            S/O- SHAHAZUR RAHMAN
            R/O- TENGABARI
            WARD NO. 4
            ABAYAPURI
            DISTRICT- BONGAIGAON
            ASSAM. PIN- 783384.

            13:SRI INDRANIL BHUYAN
             ROLL NO.- 66844

            S/O- LATE NAGEN BHUYAN
            R/O- NARIKAL BARI
            5TH BYE LANE
            HOUSE NO. 19
            MOTHER TERESA ROAD
            AIDC
            KAMRUP (M)
            GUWAHATI. PIN- 781008

Advocate for the Petitioner   : MR. R MAZUMDAR

Advocate for the Respondent : GA, ASSAM
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                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                       ORDER

Date : 25-02-2022

Heard Mr. R. Mazumder, learned counsel for the petitioner. Also heard Mr. R. Bora, learned standing counsel for the Forest Department and Mr. R.C. Saikia, learned counsel appearing for the private respondent no.6. None appears on call for the other respondents although notices have been duly served on the private respondents.

2. The petitioner had applied for appointment in the vacant post of Forester Grade-I pursuant to advertisement published on 23.07.2014, by which applications were invited for appointment against 141 nos. of vacant posts. The petitioner had applied for the said post as an OBC category candidate. The petitioner claims that she had cleared the written test, physical efficiency test, medical test and thereafter also cleared the viva voce test. The select list was published on 27.02.2016 and the petitioner found that her name was not included as a successful/ selected candidate. Therefore, she applied for certain information through an RTI application and from the reply dated 21.03.2016 submitted by the respondent authorities, the petitioner could come to know that in course of selection process, the requisite reservation as per the provisions of Assam Women (Reservation of Vacancies and services and post) Act, 2005 (hereinafter referred to as Women's Reservation Act) was not provided.

3. Accordingly, the petitioner has filed this writ petition under Article 226 of the Constitution of India with a prayer for a direction upon the respondent authorities to appoint the petitioner in the post of Forester Grade-I against Page No.# 5/9

reservation under the Women's Reservation Act, considering her as OBC category candidate.

4. On a Court query as to why this writ petition be entertained in absence to any challenge to the employment advertisement, the learned counsel for the petitioner has placed reliance on the decision of this Court in the case of Nilima Das Vs. State of Assam and ors., 2018 (2) GLT 924, by which the Division Bench of this Court had held that it was not necessary for the candidate seeking reservation under the Women Reservation Act to challenge the advertisement.

5. The learned counsel for the petitioner has further submitted that similarly situated candidate has approached this Court seeking benefit of the Women's Reservation Act in connection with the same selection process that was initiated vide advertisement dated 23.07.2014 and this Court in the said case of Tuhina Mahanta Vs. The State of Assam and ors., in WP(C) 1424/2016 decided on 23.04.2018, had held that the petitioners therein had a legitimate claim for appointment to the post of Forester Grade-I and therefore, the writ petition was disposed of with a direction to the State respondents to consider the case of the petitioners in the said case for appointment in the post of Forester Grade-I within a period of 2(two) months.

6. In this case, notice of motion was issued by order dated 22.06.2018 but till date no affidavit-in-opposition has been filed. However, the learned standing counsel for the Forest Department has submitted that due to long Page No.# 6/9

lapse of time, he may be given liberty to make enquiry as to whether any post of Forester Grade-I is lying vacant before any order is passed similar to directions given in the case of Tuhina Mahanta (supra). The said submission is noted.

7. Per contra, the learned counsel for the private respondent no.6 has also opposed the prayer made in this writ petition and it is submitted that as the name of the respondent appears in the select list and was duly appointed in accordance with law, no case is made out to assail the appointment of the respondent no.6.

8. It appears from the provision of Women's Reservation Act that reservation to the extent of 30% is provided for in the said Act. It is also noted that as per the scheme of said Women's Reservation Act, the nature of reservation provided for is horizontal and therefore it would apply to all categories of posts, whether reserved or unreserved.

9. The Division Bench of this Court in the case of Nilima Das (supra) has gone into the nature of reservation as envisaged under the Women's Reservation Act. While deciding the said matter, the Division Bench of this Court had taken note of the clauses in the employment advertisement wherein it was provided that "reservation would be maintained as per provision". In the present case in hand, the employment advertisement (Annexure-2 of the writ petition) similarly provides that "reservation in various services/ posts as required under various laws will be made according to the rules of the service/ post concerned".

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Therefore, the nature of reservation as was mentioned in the case of Nilima Das (supra) appears to be similar to the nature of reservation which is provided in the employment advertisement dated 23.07.2014. Therefore, as nature of reservation is already found mentioned in the employment advertisement, the Court finds no necessity for the petitioner to challenge the employment advertisement.

10. It is further seen that as reservation for women was not provided for in the case of another selection process which was initiated for filling up the post of Lower Division Assistant under the Directorate of Health Services (Family Welfare) as Women Reservation was not followed, the aggrieved candidate has filed a writ petition which was dismissed and thereafter the matter came in Intra Court appeal before the Division Bench of this Court being W.A. 85/2019 and the said appeal was disposed of by order dated 06.02.2020 by issuing a direction on the respondent authorities i.e. the State to appoint the writ petitioner as the State had not issued an advertisement in compliance of the Rule 3 of the said Women's Reservation Act.

11. Notwithstanding that in the said judgment, the Division Bench of this Court had observed that the case was not to be considered as a precedent. Nonetheless, in respect of the factual aspect, the said judgment will have a persuasive force on the point that reservation for women under the Women's Reservation Act is a mandatory requirement, which is a finding of fact.

12. As indicated above, in the case of Tuhina Mahanta (supra) which arises of the same selection process initiated by same advertisement dated 23.07.2014 Page No.# 8/9

where direction was issued to appoint the petitioner, the Court is of the considered opinion that it would be injustice to deprive the benefit of parity to the petitioner. Accordingly, the writ petition deserves to be and is accordingly allowed.

13. Directions are issued to the following effect:

(1) The petitioner is found to have a right to be considered for appointment as Forester Grade-I pursuant to process initiated vide advertisement dated 23.07.2014 as per the provisions of Assam Women (Reservation of Vacancies and services and post) Act, 2005.

(2) That on receipt of the certified copy of the order, the respondent no.2 i.e. the Principal Chief Conservator of Forest and Head of Forest Force, shall make an enquiry to find out in connection with the selection process initiated vide advertisement dated 23.07.2014, adequate representation of the women as per the terms of Assam Women (Reservation of Vacancies and services and post) Act, 2005 was followed or not.

(3) On a rough calculation, out of 141 posts advertised 30% reservation for women would come to about 42 posts. In that regard it appears from the RTI reply dated 21.03.2016 (Annexure-9) that although 31 nos. of female candidates were appointed as Forester Grade-I. Thus, rough calculation would indicate that there are vacancies available if not already filled up by virtue of orders of this Court.

(4) If vacancies are found available, the respondent authorities, i.e. Page No.# 9/9

Principal Chief Conservator of Forest and Head of Forest Force, Assam, shall take appropriate action for appointment of the petitioner to the post of Forester Grade-I. The appointment would relate back to the final list of selected candidates which was published on 27.02.2016 and the appointment would take effect from the date when appointments were made under the said select list. However, for the period of service not rendered, petitioner would not be entitled to any salary or emoluments, however, notional benefit would accrue from the said date for all other purposes, including fixation of pay.

(5) The entire exercise would be carried out within a outer period of 3(three) months from the date of certified copy of this order.

(6) However, if the respondent authorities find that the vacancies earmarked for has been achieved by following the reservation for women, for which the petitioner's case could not be considered, the respondent no.2 would be obliged to pass a speaking order and furnish a copy thereof to the petitioner.

14. This writ petition stands allowed with observations as indicated above.

JUDGE

Comparing Assistant