Dr. Jagadish Hansa vs The Union Of India And 5 Ors
2025 Latest Caselaw 4586 Gua

Gauhati High Court

Dr. Jagadish Hansa vs The Union Of India And 5 Ors on 28 March, 2025

Author: Michael Zothankhuma

Bench: Michael Zothankhuma

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GAHC010195742023




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

                          Case No. : WP(C)/5200/2023

         DR. JAGADISH HANSA
         SON OF SRI TIKESWAR HANSA,
         PERMANENT RESIDENT OF VILL. AND P.O.- KINDIRA, SAMBALPUR,
         ODISHA, PIN- 768222.



         VERSUS

         THE UNION OF INDIA AND 5 ORS.
         REPRESENTED BY THE SECRETARY TO THE MINISTRY OF EDUCATION,
         GOVERNMENT OF INDIA,
         SHASTRI BHAWAN, NEW DELHI- 110011.

         2:THE VICE-CHANCELLOR-CUM-CHAIRPERSON
          EXECUTIVE COUNCIL
         ASSAM UNIVERSITY
          SILCHAR
          DISTRICT- CACHAR

         ASSAM
         PIN- 788011.

         3:THE REGISTRAR
         ASSAM UNIVERSITY
          SILCHAR
          DISTRICT- CACHAR

         ASSAM
         PIN- 788011.

         4:DR. PAROMITA DAS
         THE LIAISON OFFICER (FOR SC
          ST AND PWD)
                                                                           Page No.# 2/8


             ASSAM UNIVERSITY

             ASSOCIATE PROFESSOR

             DEPARTMENT OF MASS COMMUNICATION
             SILCHAR

             DISTRICT- CACHAR
             ASSAM

             PIN- 788011.

             5:THE UNIVERSITY GRANT COMMISSION (UGC)
              REPRESENTED BY ITS SECRETARY/ CHAIRPERSON

             GOVERNMENT OF INDIA

             BAHADUR SHAH ZAFAR MARG

             NEW DELHI- 110002.

             6:THE UNDER SECRETARY TO THE GOVT. OF INDIA
              MINISTRY OF PERSONNEL
              PUBLIC GRIEVANCE AND PENSIONS
              DEPARTMENT OF PERSONNEL AND TRAINING

             GOVERNMENT OF INDIA

             NORTH BLOCK
             NEW DELHI- 110011

Advocate for the Petitioner   : MR D K DAS, MR B DEURI,MR C KUMAR,MR H BETALA

Advocate for the Respondent : DY.S.G.I., MS P AGARWAL (r-5),MR. K GOGOI,SC, ASSAM
UNIVERSITY,SC, U G C




                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                        ORDER

28.03.2025

1. Heard Mr. H. Betala, learned counsel for the petitioner. Also heard Mr. S.C. Page No.# 3/8

Keyal, learned Counsel for the Assam University and Dr. P. Agarwal for the University Grants Commission (UGC).

2. The petitioner has put to challenge the Assam University Rolling

Advertisement No.3/2023 dated 6th July, 2023, on the ground that the reservation that is to be implemented on the basis of the judgment of the Supreme Court in the case of R.K. Sabharwal & Others vs. State of Punjab & Others, reported in (1995) 2 SCC 745 has not been complied with.

3. The petitioner's counsel submits that the reservation that has to be implemented in terms of the Rolling Advertisement No.3/2023, requires post based reservation and not a vacancy based reservation.

4. The petitioner is a Scheduled Caste candidate, who is desirous of participating in filling up the vacant post of Assistant Professor, Bio-Technology. However, the Rolling Advertisement No.3/2023 has advertised for filling up the post of Assistant Professor, Bio-Technology by an OBC candidate and not an SC candidate, which is a total turnaround from the resolution made in relation to

Item No.13 in the 158th Meeting Minutes of the Assam University dated

14.08.2023. In the 158th Meeting Minutes of the Assam University dated 14.08.2023, it had been decided that pursuant to the order dated 14.08.2023 passed by this Court in WP(C) 7077/2019, the vacant post of Assistant Professor, Bio-Technology would be filled by a SC candidate. However, the same is now sought to be done by a OBC candidate.

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5. The petitioner's counsel submits that the Assam University would have show the post based Roster Point that has been made by the University, for coming to a decision that the post of Assistant Professor, Bio-Technology is to be filled up by a OBC candidate, in terms of the Rolling Advertisement No.3/2023,

which is at variance with resolution made in relation to Item No.13 in the 158 th Meeting Minutes of the Assam University dated 14.08.2023, wherein the said post was to be filled up by an SC candidate.

6. Mr. S.C. Keyal, learned counsel for the Assam University has submitted a letter dated 28.03.2025 issued by the Registrar, Assam University, which is to the effect that the University has prepared post based Roster which has been duly approved by the Executive Council of the University and the same has been uploaded in the Website. The letter also states that the Roster considers the University as a single Unit and had not prepared the Roster department wise, as it was contrary to law. Mr. S.C. Keyal has also submitted a Chart showing the sanctioned strength of Assistant Professor to be 258, while the men in possession is 226, the vacancy position is 32 and the current vacancy is 27. He submits that the said Chart is a post based Roster Point made in terms of the Office Memorandum dated 02.07.1997 issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, which in turn has been made in pursuance to the judgment of the Supreme Court in the case of R.K. Sabharwal (supra).

7. Dr. P. Agarwal, learned counsel for the UGC submits that in terms of the Implementation of Central Educational Institutions (Reservation in Teachers' Page No.# 5/8

Cadre) Act, 2019 (hereinafter referred to as the "2019 Act"), Section 3(2) provides that for the purpose of reservation of a post, a Central Education Institution is to be regarded as one Unit and that in terms of Section 2(l), the "Teachers' Cadre" means a class of all the teachers of a Central Educational Institution, regardless of the branch of study or faculty, who are remunerated at the same grade of pay, excluding any allowance or bonus. She also submits that post based Roster has to be followed by the University for filling up the vacant post of Assistant Professor.

8. I have heard the learned counsels for the parties.

9. At the outset it may be submitted that in terms of the judgment of the Supreme Court in the case of Kulwinder Pal Singh & Another vs. State of Punjab & Others, reported in (2016) 6 SCC 532, the Supreme Court has held that in terms of Section 7 of the Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006, there is a bar on de-reservation of the posts reserved for Scheduled Caste candidates. However, Sub-Section (2) of Section 7 provides an exception to this general rule by laying down that in the public interest the authorities may by passing an order in writing dereserve the seats reserved for candidates belonging to the Scheduled Castes category. After insertion of Clause (4-B) in Article 16 of the Constitution vide the Eighty-first (Amendment) Act, 2000, dereservation cannot be done and the unfilled vacancies reserved for Scheduled Castes and Scheduled Tribes candidates are to be carried forward, independent of the ceiling of reservation of 50%. Seats reserved for Scheduled Castes and Scheduled Tribes categories are to be filled only by the specified category.

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10. Though the letter dated 28.03.2025 issued by the Registrar, Assam University states that a post based Roster has been prepared by the Assam University which has been uploaded in the Website, the Chart which has been submitted by the Counsel for the University regarding the sanctioned strength etc. of Assistant Professor, goes to show that the same cannot be said to be a post based Roster Point, made in terms of the O.M. dated 02.07.1997. The O.M. dated 02.07.1997 clearly provides the Model Roster Form for reservation, with reference to post for direct recruitment to be followed by the State Governments, in cases of appointment by direct recruitment. The same has been based upon the Constitution Bench judgment of the Supreme Court in the R.K. Sabharwal (supra).

11. The contents of the letter dated 28.03.2025 issued by the Registrar, Assam University is reproduced herein below, as follows :

"The University has prepared post based roster which has been duly approved by the Executive Council of the University and the roster has been also uploaded in the website. The Roster considers the University as a single unit. We do not prepare separate roster department wise as it is contrary to Law. However, as per the guidelines of Post based roster vide DoPT OM No. 36012/2/96 Dated 2nd July 1997 "the vacancy based roster can operate only till such time as the representation of persons belonging to the Reserved Categories, in a cadre, reaches the prescribed percentage of reservation. Thereafter, the roster cannot operate and the vacancies released by retirement, resignation, promotion etc. of the persons belonging to the general and reserved categories are to be filled by appointment of persons from the respective categories so that the prescribed percentage of reservation is maintained" (Annexure-A). Accordingly, Assam University has advertised the vacancies as the Page No.# 7/8

University has not yet reached the representation of persons belonging to the Reserved Categories, in a cadre, to the prescribed percentage of reservation.

The University has identified the total vacancies. Retained the backlog (which has been already advertised earlier as reserved) as it is as per law. The University has allocated the fresh vacant position and UR position amongst various departments to ensure as far as feasible balanced representation of reserved and unreserved category in various departments, otherwise, in a particular department all may belong to one category restricting scope of opportunity to other categories. In this regard, the University identified cadre wise (Assistant Professor, Associate Professor. Professor) vacancies, backlog, departmental status of vacancies within the Roster Unit of Assam University and allocated reserved/unreserved category. Details attached In Annexure-B,C,D cadre wise."

12. The letter dated 28.03.2025 issued by the Registrar, Assam University is made a part of the record and marked as Annexure-X.

13. The Chart produced by the Counsel for the Assam University not having been made in terms of the Model Roster, as provided in the O.M. dated 02.07.1997, it is clear that the attempt by the State respondents to appoint Assistant Professors in various subjects, including Bio-Technology, is not in consonance with the law laid down by the Supreme Court in the case of R.K. Sabharwal (supra) and O.M. dated 02.07.1997.

14. The Chart submitted by the counsel for the Assam university showing the sanctioned strength of Assistant Professor etc. is also made a part of the record and marked as Annexure-Y. Page No.# 8/8

15. In view of the above reasons, the Assam University is directed to make a post based Roster Point in terms of the O.M. dated 02.07.1997 at the earliest. Thereafter the appointment to the various posts of Assistant Professor should be made by way of a fresh advertisement, by specifying the Roster Point against which the new appointments are to be made. Consequently the Rolling Advertisement No.3/2023 dated 06.07.2023 issued by the Registrar, Assam University is hereby set aside.

16. The writ petition is accordingly disposed of.

JUDGE

Comparing Assistant