Kamal Naik And ORS v. The Union Of India And ORS
IN THE HIGH COURT AT CALCUTTA
CONSTITUTION WRIT JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE KAUSIK CHANDA AND THE HON'BLE JUSTICE KRISHNA RAO WP.CT/10/2024 KAMAL NAIK AND OTHERS ... PETITIONERS VS.
THE UNION OF INDIA AND OTHERS ... RESPONDENTS For the petitioners : Ms. Anjili Nag, Sr. Advocate Ms. K. Bhawani For the respondent Nos. 1to 5 : Mr. Shatadru Chakraborty, Sr. Adv Mr. Rakesh Kumar Mr. Dibesh Dwivedi For the respondent Nos.
7,10,17,20,46,48,49,52 & 62 : Mr. Gopala Binnu Kumar Heard on : July 10, 2025 Judgment on : July 14, 2025 KAUSIK CHANDA, J.
1.
The undisputed facts involved in this case may be summarised as follows:
2.
The Department of Environment and Forests, Andaman and Nicobar Administration, published a notification dated April 30, 2010, prescribing the Andaman and Nicobar Administration
(Group 'C' (Industrial) Posts in the Department of Environment and Forests) Recruitment Rules, 2010. As per the schedule of vacancies, the total cadre strength for the post of Mazdoor was notified as 2,454, out of which 229 posts were earmarked for the Diglipur Sub-Division.
3.
On October 16, 2013, a recruitment notice was published by the respondents for filling up 75 posts of Regular Mazdoors in the Diglipur Forest Division. Out of these, 39 posts were for General category candidates, 27 were reserved for Other Backward Class (OBC) candidates, and 9 were reserved for Scheduled Tribe (ST) candidates.
4.
All the petitioners before this Court applied for the said posts of Mazdoor under the General category.
5.
In the first week of June 2018, the respondents published a list ranking 335 candidates according to their performance in the selection process.
6.
It is not in dispute that the petitioners' names appeared in the said merit list, ranging from Serial No. 23 to Serial No. 38 under the General category.
7.
It must be mentioned that, by a notification dated December 16, 2005, the Andaman and Nicobar Administration introduced 38% reservation for Other Backward Class candidates in its services .It appears that, after the preparation of the merit list, the respondent authorities reworked the vacancy position and
prepared a reservation roster, applying 38% reservation for OBC candidates, 8% for Scheduled Tribe candidates, and 3% for Persons with Disabilities, against the total of 229 posts as of October 17, 2018.
8.
Thus, the vacancy position was reworked as follows:- Total Seats Category Share of entitlem ent Vacancy as on 17/10/2 Entitled seats as per roster Seats occupie d Temporaril y diverted seats Unreserved (UR) 51% 19 (UR) (refixed vide PCCF ANI's office order No.
E/112 dated 30.10.
2017 ) Scheduled Tribe (ST) 8% Other Backward Caste (OBC) 38% (OBC) Persons with Disabilities (PH) 3% Total Vacancies
10. Based on this exercise, on October 21, 2018, the respondents published a list containing the names of 65 candidates for the purpose of appointment.
11. Out of the said 65 candidates, only 19 belonged to the General category, against 39 advertised vacancies under the unreserved category. However, with respect to OBC candidates, 46 names appeared against 27 advertised vacancies. No candidate from the Scheduled Tribes category was selected.
12. Challenging the action of the respondent authorities in selecting only 19 General category candidates for appointment, the petitioners filed OA No. 351/01679/AN/2018 before the Central Administrative Tribunal.
13. The Tribunal, by its order dated January 01, 2024, dismissed the said application.
14. Aggrieved by the said order of the Tribunal, the present application has been filed.
Arguments on behalf of the petitioners
15. Ms. Anjili Nag, learned senior advocate appearing for the petitioners, challenges the order of the Tribunal on the ground that the respondent authorities cannot change the rules of the game midway through the process. It is submitted that the respondent authorities prepared the model roster on October 17, 2018-i.e., after the selection process had already been completed and the final list of selected candidates had been prepared. While preparing this model roster, the respondents gave retrospective effect to the notification dated December 16, 2005. The model roster reveals that although OBC candidates were appointed only on or after January 2007, they were adjusted retrospectively from the year 1997.
16. In support of her submission, Ms. Anjili Nag relied on the judgment reported in (2015) 8 SCC 410 (M. Surender Reddy vs. Government of Andhra Pradesh and Others).
17. Ms. Nag further submits that the method of recruitment in the present case should be governed by the judgment of the Hon'ble Supreme Court reported in AIR 1993 SC 447 (Indra Sawhney vs. Union of India and Others). She relies on the relevant paragraphs of the said judgment to argue that the respondents, by reserving 69 posts for OBC candidates, have in fact exceeded the 50% cap on reservations as prescribed in Indra Sawhney (supra). It is contended that the petitioners ought to have been appointed in accordance with the advertisement dated October 16, 2013, against the 39 vacancies notified for General category candidates.
Argument on behalf of the respondent Nos. 1 to 5
18. Mr. Shatadru Chakraborty, learned senior counsel appearing for respondent Nos. 1 to 5, argues that the number of vacancies at the time of advertisement was 47 (as on 31st July 2013), but the Division notified 75 vacancies (39 General, 27 OBC, and 9 ST) with a condition that the number "may vary." The figure of 75 was arrived at by taking into account anticipated vacancies as well.
19. It is submitted that the category-wise breakup-39 General, 27 OBC, and 9 ST-was determined by applying reservation
percentages on the 75 available vacancies, i.e., 38% for OBC and 12% for ST. However, this ought to have been calculated based on the total sanctioned strength of regular Mazdoors in the Division, following the reservation roster prepared in accordance with the Constitution Bench decision of the Hon'ble Supreme Court in (1995) 2 SCC 745 (R.K. Sabharwal & Ors. v. State of Punjab & Ors.).
20. Mr. Chakraborty further submits that the number of vacancies under each category, as stated in the advertisement dated 25th September 2013, had to be reworked in the select list dated 17th October 2018 in accordance with the applicable reservation quotas-8% for ST, 38% for OBC, and 3% for Persons with Disabilities (PwD). It is emphasized that the reservation quota for OBC candidates did not exceed the prescribed 38% in the reservation roster.
21. It is further argued that, after applying horizontal reservation for PwD candidates, the 3% quota was redistributed based on their respective categories, resulting in 44 vacancies for OBC candidates and 21 for the unreserved category.
22. Mr. Chakraborty submits that, out of 18 ST posts available as per the reservation roster, all were already filled. The quota for ST candidates was re-fixed at 8% (as opposed to the initially considered 12%), and the remaining 4% was transferred to the
General category. Consequently, no ST candidate could be included in the Select List dated 17.10.2018.
23. Mr. Chakraborty contends that the select list of 65 candidates dated 17th October 2018 was prepared by following the reservation roster in line with the decision of the Constitution Bench in R.K. Sabharwal. v. State of Punjab (1995) 2 SCC 745.
24. It is submitted that a merit list does not confer any indefeasible right upon an unsuccessful candidate. A candidate cannot challenge the outcome of the selection process merely because they were not included in the final merit list. The selection process must be conducted strictly in accordance with the statutory rules and the law of the land. Reliance is placed on the judgment reported in (2010) 6 SCC 777, para 14 (State of Orissa v. Rajkishore Nanda).
25. Mr. Chakraborty submits that reservations are always to be worked out based on the total sanctioned strength and not merely on the number of advertised vacancies.
26. It is further submitted that the ratio laid down in Indra Sawhney & Others v. Union of India (1992 Supp (3) SCC 217) is not applicable in the present case, as it has been distinguished in R.K. Sabharwal (supra). The Indra Sawhney judgment is not an authority for the proposition that reservation must be calculated based on advertised vacancies.
27. He further urges that in similar circumstances, the Hon'ble Supreme Court, in Anupal Singh. v. State of Uttar Pradesh., (2020) 2 SCC 173, has held that the authority is entitled to revise the selection list where necessary to give effect to the principles laid down in R.K. Sabharwal (supra) and the applicable recruitment rules.
28. He submits that it is now well-settled law that Courts will not interfere with results determined by a committee of experts in matters of public employment, except in cases of manifest arbitrariness. Reliance is placed on the judgment reported in 2023 SCC OnLine SC 344 (Tajvir Singh Sodhi v. State of Jammu and Kashmir).
29. It is lastly argued that applying the ratio sought to be enforced by the writ petitioners would lead to excessive reservation for Scheduled Tribes, even though all 8 ST seats in the roster are already filled.
Argument on behalf of the OBC candidates
30. Mr. Gopala Binnu Kumar, learned advocate appearing for the OBC candidates, submits that the Divisional Forest Officer, Diglipur, in the present case, has acted strictly in accordance with the judgment in R.K.
Sabharwal and the Office Memorandum dated 02.07.1997, wherein it was held that vacancies arising due to retirement, resignation, promotion, etc., of persons belonging to the General and reserved categories are to
be filled by candidates from the respective categories so as to maintain the prescribed percentage of reservation. Therefore, the respondent authorities have acted within the bounds of law, and there is no mala fide on their part.
31. Mr. Gopala Binnu Kumar further submits that it is a settled proposition of law that the petitioners cannot be permitted to completely change their stand or introduce a new argument for the first time before this Hon'ble Court, particularly when such a stance was not taken before the Tribunal. In support of this submission, he relies upon the judgment of the Hon'ble Supreme Court reported in (2009) 14 SCC 132 (State of West Bengal v. West Bengal Registration Copy Writers Association). Decision
32. The only question that arises for consideration in this writ petition is whether the respondents, after having prepared the merit list in the first week of June 2018, were justified in revising the roster and reworking the vacancy position thereafter.
33. In justification of their action, the respondents' primary contention is that such revision was carried out in accordance with the judgment of the Hon'ble Supreme Court in R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745.
34. The relevant portions of the said judgment are extracted below: "9. A Division Bench of the Allahabad High Court in J.C. Malik v. Union of India interpreted the Railway Board's circular dated 20-4-
1970 providing 15% reservation for the Scheduled Castes. The High Court held that the percentage of reservation is in respect of appointments to the posts in a cadre. Based on the material placed before it, the Court concluded that if reservation is permitted for vacancies after all posts in a cadre are filled, serious consequences would follow and the general category would suffer significantly. We find no infirmity in the view taken by the High Court. 10.
We may examine the likely result if the roster is permitted to operate in respect of vacancies arising after the total posts in a cadre are filled. In a 100-point roster, 14 posts are earmarked for Scheduled Castes/Scheduled Tribes, 2 for Backward Classes, and the remaining 84 for general category candidates. Suppose the cadre is completely filled in accordance with the roster by 31-12-1994. If in 1995 and 1996, 25 general category persons retire each year, and the resulting vacancies are filled again based on the roster, the reserve categories would claim 16% of the 50 vacancies. Allocating 8 posts to them would increase their share in the cadre from 16% to 24%. On the contrary, if after the cadre is fully filled, subsequent vacancies are filled by candidates belonging to the same category as the retiree, the balance between reserved and unreserved categories will be maintained.
11.
We clarify that in the event of non-availability of a reserved candidate at a roster point, it is open to the State to carry forward the point in a just and fair manner."
(emphasis supplied)"
35. In order to examine the nature of the exercise undertaken by the respondents in revising the vacancy position, we directed the department to produce the relevant records showing how the vacancies that occurred prior to the recruitment drive initiated in 2013 had been filled.
36. In response, the department submitted a list of appointments made between 31st August 2008 and 17th March 2018. The list reveals that out of 65 appointments, 62 were made against the
general category, and the remaining 3 posts were filled against vacancies reserved for Scheduled Tribe candidates.
37. Ms. Anjili Nag, learned senior advocate for the petitioners, rightly pointed out that a plain reading of the roster reveals that although OBC candidates were appointed only from 2007 onwards, they were retrospectively adjusted against vacancies between 1989 and 2007.
38. The roster thus clearly indicates that the respondents, while preparing a fresh vacancy position, gave retrospective effect to the notification dated 16th December introducing 38% reservation for OBCs. In such circumstances, it cannot be said that the respondents acted in accordance with the mandate laid down in R.K. Sabharwal (supra).
39. It also appears that while preparing the revised roster of 229 candidates, the respondents did not follow the Model 200-point Roster of reservations issued by the Department of Personnel and Training (DoPT). Upon comparison, we find that the impugned roster is not in conformity with the DoPT's prescribed structure.
40. In clearing backlogs or preparing a reservation roster, the same must be applied prospectively and not retrospectively so as to rewrite history or alter appointments already made.
41. The 200-point roster must be operated in sequence, with each new vacancy matched to its corresponding position in the roster.
Previously filled posts cannot be adjusted unless there was a clear violation warranting such action.
42. The facts of the present case raise serious concerns: 46 out of 65 posts (i.e., 70.8%) were allotted to OBC candidates in a single recruitment cycle. Even assuming the intent was to align the total cadre strength with the 38% OBC quota, such disproportionate adjustment in one selection round results in an arbitrary and excessive outcome, bordering on reverse discrimination.
43. The Hon'ble Supreme Court, in a series of judgments including Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, and M. Nagaraj v. Union of India, (2006) 8 SCC 212 has consistently cautioned against mechanical or excessive application of reservation policies. Where such implementation unreasonably excludes meritorious candidates or results in reverse discrimination, it violates the constitutional mandate of equality and is unsustainable in law.
44. In view of the above findings, it is unnecessary to enter into the argument as to whether the "rules of the game" were altered midselection. We are of the considered opinion that such an exercise ought not to have been undertaken at all, as it is inherently illegal.
45. For the aforesaid reasons, the order of the Tribunal dated 22nd January, 2024 cannot be sustained and is accordingly set aside.
46. The respondents are directed to proceed with the recruitment process in accordance with the advertisement dated 16th October, 2013, which was subsequently amended to reduce the number of posts from 75 to 65. Out of these 65 posts, 29 shall be filled by general category candidates.
47. Accordingly, the respondents are directed to fill the remaining general category vacancies, if not already filled, from the merit list prepared in June 2018, strictly in order of merit.
48. For clarity, we note that the reservation for Scheduled Tribe candidates has not been interfered with, as no challenge has been made regarding the reservation policy or its implementation.
49. Accordingly, WPCT/10/2024 is allowed.
( KAUSIK CHANDA, J. ) I Agree ( KRISHNA RAO, J.)