JUDGMENT
S.J. Mukhopadhaya, J.
1. This writ petition has been preferred by the petitioner against the order of appointment of 4th respondent, namely, Ranjan Sao to the post of cook. Further prayer has been made to direct the respondents to appoint the petitioner as cook against the post reserved for Scheduled Caste Category.
2. The brief fact of the case is that the respondent Commandant, Jharkhand Armed Police-6, Jamshedpur (hereinafter referred to as the J.A.P. 6, Jamshedpur) issued one advertisement No. 1/2004 published in the newspaper on 18th October, 2004 calling for applications for appointment against Class-IV post of cook (Rasoiya); Water Puller (Jalwahak); Sweeper (Jharukas); and Barber (Nayee) as were vacant under J.A.P. 6 Jamshedpur and J.A.P. 2, Tatisilwai, Ranchi. The candidates were asked to submit their applications by 27th October, 2004.
So far as post of cook is concerned, four posts were notified and shown vacant under J.A.P. 6, Jamshedpur which were divided amongst the following categories.
(1) Unreserved 02
(2) Scheduled Tribe 01
(3) Scheduled caste 01
(4) O.B.C. Nil
Total 04
The petitioner, a member of Scheduled Caste being eligible, applied for the post of cook within time. He appeared in the physical test on 1st November, 2004 and was declared successful. He was also asked to prepare food.
3. According to the petitioner, he was recommended for appointment to the post of cook against scheduled caste quota taking into consideration the physical test, performance and qualification of Graduation which he holds.
4. The grievance of the petitioner is that while he was waiting for letter of appointment, result was published on 6th December, 2004 in the daily newspaper ‘Prabhat Khabar’ recommending four persons for appointment as cook in J.A.P. 6, Jamshedpur.
The following persons including the 4th respondent were appointed against the post and category, as shown hereunder :
Sl. No. Name Post Category
01 Sri Prem Kumar Sahu Cook Unreserved
02 Sri Sri Dinesh Kumar Cook Unreserved
03 Sri Vijay Rajesh Toppo Cook S.T. Quota
04 Sri Ranjan Sao (4th Cook B.C. Quota
respondent)
5. According to the petitioner, he became surprised when he found that the 4th respondent Ranjan Sao was appointed, showing the post reserved for Backward Class, without recommending any name against any post meant for Scheduled Caste. On enquiry, the petitioner could come to know that the post reserved for Scheduled Caste was later on shown reserved for Backward Class to accommodate the 4th respondent and he was appointed.
6. A counter affidavit has been filed by the 3rd respondent, namely, Commandant, J.A.P. 6 Jamshedpur. The 4th respondent also appeared and filed counter affidavit.
7. According to the counsel for the State, the appointment of 4th respondent has been made on the basis of the Roster framed by the Government of Jharkhand circulated, vide Memo No. 6329, dated 20th November, 2003. As per aforesaid Roster, the first vacancy is Unreserved; second vacancy for Scheduled Tribe Category; third vacancy unreserved; and the fourth vacancy for Backward Class Category.
8. Further case of the respondent-State is that the Advertisement No. 1/2004 was published about a year back in pursuance of letter No. 7/AA. Ro-30/2002 KA 6770, dated 13th December, 2002 issued from the Personnel, Administrative Reforms and Rajbhasha Department, Jharkhand, wherein four vacancies were shown in the Model Roster for nine posts. First vacancy is Unreserved; second vacancy for O.B.C.; third vacancy for Scheduled Tribe; and 4th vacancy for Scheduled Caste. Later on, when it came to know of the Roster 2003, it was thought proper to rectify and modify the advertisement and a corrigendum was published on 27th/28th October, 2004. In the said corrigendum, in place of Scheduled Caste, one post was shown reserved for Backward Class.
This fact was disputed by the petitioner that any such corrigendum was published in the Notice Board on 27th October, 2004.
The 4th respondent in his counter affidavit while took same plea and has stated that he applied on 27th October, 2004 as backward category candidate. This has also been disputed by the petitioner.
9. There is nothing on the record to suggest that any corrigendum was published in any Notice Board on 27th October, 2004. There is no such evidence attached with the affidavits. However, for subjective satisfaction, this Court called for the original record relating to selection. From the record so produced, it appears that no corrigendum was published on 27th October, 2004. From the record, it appears that the respondents decided to publish a corrigendum. The draft corrigendum was forwarded to the Director, Public Relations Department, Government of Jharkhand, Ranchi, vide Memo No. 230/GO, dated 27th October, 2004 for publication of Notice in the newspapers. Other letter was issued vide Memo No. 230A/GO, dated 29th October, 2004 where under vacancy with regard to Cook with modified reservation of post was forwarded, showing two posts–unreserved; one post for Scheduled Tribe; and one post for Backward Class Category. Such corrigendum was published in the newspaper much later than 29th October, 2004.
10. The respondents including the 4th respondent have failed to make it clear as to how he (4th respondent) applied for appointment to the post of Cook, reserved for Backward Class Category, on 27th October, 2004, if the corrigendum was published in the newspaper much after 29th October, 2004.
11. This Court wanted to know as to why the respondents changed the Roster and thereby the post which was shown reserved for Scheduled Caste Category was changed and shown reserved for Backward Class Category and appointed the 4th respondent, who applied prior to the corrigendum which was published in the newspaper after 29th October, 2004. It was not made clear as to how the 4th respondent came to know that the post will be reserved for backward category and in that anticipation he applied on 27th October, 2004.
12. To find out the ground, this Court perused the original file relating to selection and appointment of Cook, which was produced, from which, the following fact emerges.
Details relating to strength of Cadre (State Cadre) of Cook, existing strength and vacancies were calculated and a chart was prepared and kept at page 10 of the file relating to reservation. The following position has been shown therein.
Cook strength--32
Category wise Per- Category- Existing No. Excess
statement cent wise No. stren- vacan- stren-
age Post gth cy gth
General Category 50% 16 06 10 --
(Unreserved)
Scheduled Tribe 26% 8.32/8 05 03 --
category
Backward Category 14% 4.48/5 16 -- 11
Scheduled Caste 10% 3.20/3 -- 03 0
13. From the aforesaid document on record, it would be clear that out of 32 posts, already 16 persons i.e. 50% of the strength of the Cadre has been filled up from amongst the Backward Category. It is to the knowledge of the respondents that 11 Backward Category candidates are working as Cook, excess to their quota. On the other hand, though Scheduled Caste candidates are entitled for at least three posts out of the total strength of 32, none of them are working and all the three posts meant for Scheduled Caste are vacant.
14. It is a settled law that the Roster, commonly known as Rota, can be made applicable only if there is a Quota for reserved Category, if the Quota of a particular reserved Category is full, application of Rota for such reserved Category does not arise as no person excess to the Quota can be appointed against such reserved Category. As already pointed out, 50% of the posts having already been filled up from amongst Backward Category, 11 Backward Category persons being excess to the Quota, it was not open for the respondents to again reserve any post for Backward Category, nor there was any occasion to apply Rota (Roster) so far as backward Category is concerned.
15. From the aforesaid fact, it would be clear that the respondents while issued the original Advertisement No. 1/2004 showing two posts unreserved; one reserved for Scheduled Tribe and another for Scheduled Caste candidate, the 4th respondent being a member of Backward Class Category his case could not have been considered against the post which was reserved for Scheduled Caste Category. Though, it was open for the respondents to consider the case of the 4th respondent against the two unreserved posts. But it is not their case that the appointment of the 4th respondent was made against unreserved post.
16. For the reasons aforesaid, this Court has no other option, but to declare the appointment of 4th respondent as illegal. The respondents are, accordingly, directed to terminate his service, with further direction to treat the post of Cook in question, reserved for Scheduled Caste Category and to consider the case of the petitioner and other successful Scheduled Caste candidates for appointment to the post of Cook. The 4th respondent is prohibited from functioning as Cook with immediate effect. The respondents will consider the case of the petitioner and other Scheduled Caste candidates within one month from the date of receipt/production of a copy of this order.
17. The writ petition is allowed with the aforesaid observations and directions. However, in the facts and circumstances, there shall be no order, as to costs.
18. Let the file be returned to the learned Standing Counsel No. II.