WP(C) 1229/2009 BEFORE HON’BLE MR. JUSTICE B K SHARMA Heard Mr. N Dhar, learned counsel for the petitioner as well as Mr. A K Talukdar , learned counsel representing the respondent No.5. I have also heard Mr. U K Go swami, learned Standing Counsel, Education Department, Assam. [2] By means of this writ petition, the petitioner has put to challe nge the Annexure-5 order dated 25.02.2009 by which, the Director of Elementary E ducation, Assam has appointed the respondent No.5 as Assamese Language Teacher in Bdarpurghat Kalairbond Govt. Senior Basic School. According to the petitione r the Director could not have appointed the respondent No.5 as it was the petiti oner, who was recommended by the Selection Committee as the first nominee. In th is connection, the petitioner has placed reliance on Annexure-3 list of empanell ed candidates for the post. On perusal of the said list it appears that the peti tioner had secured total 103.4 marks while the respondent No.5 secured 119.3 mar ks. While the petitioner is shown to be reserved category candidate (SC), the re spondent No.5 is a general category candidate. In the column Position under co lumn No.8, the petitioner has been assigned No.1 position, while the respondent No.5 has been assigned No.2 position. In column No.9 under the head Remarks , t he endorsement against the name of the petitioner is SC female and land donor c andidate recommended by the SMC . The list was signed on 03.01.2006 by the Chair man of the Selection Committee, who is also the District Elementary Education Of ficer, Karimgang. [3] It is on the above basis the claim of the petitioner is that she being an SC category candidate and the post being reserved for the said categor y, she was rightly recommended for appointment but the Director has appointed th e respondent No.5 illegally and without adhering to the recommendation made by t he Selection Committee. [4] In the counter-affidavit filed by the official respondents, it i s their contention that the vacancy in question being a single vacancy, the auth ority did not apply reservation. Further stand in the affidavit is that since th e respondent No.5 secured more marks than the petitioner, irrespective of the re commendation made by the Selection Committee, the State Level Committee has furt her revised the select list and recommended the respondent No.5 for appointment. [5] In the counter-affidavit filed by the respondent No.5 the very s tatus of the petitioner as a reserved category candidate has been questioned. It has been stated that the petitioner belongs to OBC and not SC Community. Thus, according to the respondent No.5, the petitioner cannot claim reservation as SC category candidate. According to the respondent No.5, she having secured more ma rks in the selection, the Selection Committee could not have recommended the pet itioner as a first nominee and that too as an SC candidate which according to th e respondent No.5, the petitioner is not. [6] During the course of hearing of this writ petition when it was a rgued that as per the provisions of Rule 3 of the Assam Elementary Education (P rovincialisation) Rules, 1977 the candidates are entitled to get marks for the q ualification over and above the prescribed qualification and so also for the exp erience. According to Mr. Dhar, learned counsel for the petitioner, the Selectio n Committee did not award any mark to the petitioner for her better qualificatio n, she being a Graduate in Arts with 55% marks as against 33% marks, secured by the respondent No.5 in her BA examination. Another point, which came up for cons ideration was as to whether, the vacancy in question was the lone vacancy or it is the one of the vacancies in total cadre strength in which, the percentage of reservation is applicable. [7] Another controversy arose was that after the selection made by t he District Level Committee the State Level Committee had no role to play in the matter of selection. In the written instruction furnished vide letter dated 10. 03.2010, it was stated that the State Level Committee of the Directorate had sel ected the respondent No.5 from the Select List on the basis of marks obtained in the selection, which was conducted by the District Selection Committee. Such a course of action was stated to have been adopted on the strength of the office l etter dated 15.12.2005. [8] In view of the above controversy, the Director of Elementary Edu cation, Assam, was directed to file an affidavit clarifying the points as noted in the order dated 11.05.2010. For a ready reference the said order dated 11.05. 2010 is quoted below : Heard learned counsel for the parties at some length. Hearing remains inconclu sive. It will be appropriate for the Director to file an additional affidavit de aling with the following points :- 1. Although the petitioner secured 103.4 marks but showing her as an SC can didate, her position was indicated as No.1. On the other hand, the respondent No .5, although, secured 119.3, she had been shown as selectee No.2. In the remarks column, the petitioner was indicated as SC female . In view of the stand of th e petitioner that the post was reserved for SC, the Director will clarify this p osition and as to why the Screening Committee had recommended the petitioner as the No.1 candidate. 2. As per the requirement of Rule 3 of the Assam Elementary Education (Prov incialisation) Rules, 1977, the Selection Board on completion of interviews by d ifferent committees, shall add marks secured by different candidates in the inte rview, the marks secured due to qualifications of the candidates over and above the minimum qualification and the marks secured due to experience as a teacher, in the manner provided in Schedule-1. Having regard to the grievance of the peti tioner that no mark was awarded for experience and the qualification over and ab ove the minimum qualification, this aspect of the matter shall be clarified. 3. The Director although has stated that a lone vacancy could not have been reserved for SC but the reservation will apply taking into account the total ca dre strength and the percentage of reservation. The Director shall indicate as t o what was the cadre strength. This clarification is required in view of the sta nd of the petitioner that as per the roster point register, the vacancy falls in SC roster point and accordingly the petitioner ought to have been appointed. 4. The Director shall also deal with the specific pleas of the petitioner r aised in paragraphs 8 & 9 of the writ petition as the same has not been dealt wi th specifically in the counter affidavit. 5. As per the written instruction furnished by letter dated 10.3.2010, it i s the State Level Committee of the Directorate, which had selected the responden t No.5 from the select list on the basis of the marks obtained by the respondent No.5 in the interview, which was conducted by the District Screening Committee. Such a course of action is stated to have been adopted on the strength of the o ffice letter dated 15.121.2005. For a proper adjudication of the matter, the Dir ector shall also annexe the minutes of the State Level Committee meeting, in whi ch the respondent No.5 was selected. Let the above clarifications be furnished in the form of an affidavit on or before 24.5.2010. [9] After the aforesaid order, the matter was taken up on 31.05.2010 and the contradictory stand of the Director of Elementary Education was noted i n the order passed on that date. For a ready reference the said order is also qu oted below : As recorded in the order dated 11.05.2010, the Director of Elementary E ducation, Assam vide letter dated 10.05.2010 addressed to the Sr. Standing couns el, Education Department projected that State Level Committee of the Directorate had selected the respondent No. 5 from the screening list on the basis of the m arks obtained by the respondent No. 5 in the interview which was conducted by th e District Screening Committee. For a ready reference paragraph -1 of the letter dated 10.05.2010 is reproduced below: 1. The State Level Committee of this Directorate had selected the respondent No . 5 from the Screened List on the basis of the marks obtained by the respondent No. 5 in the interview which was conducted by the District Screening Committee. In this regard it is to be mentioned here that, separate scrutiny report was not prepared by the State Level Selection Committee of this Directorate. However th e State Level Committee of this Directorate scrutinized the Screened List prepar ed by the District Screening Committee on whether marks have been allocated to t he candidates as per prescribed guidelines issued vide this office letter No. EA A. 60/2005/15 dated 05.12.2005 (copy enclosed). On finding that the marks have b een allocated as per the guidelines without any deviation, the respondent No. 5 had been selected on merit basis. Contrary to the aforesaid letter dated 10.05.2010, the Director of Elementary Ed ucation in his affidavit filed on 31.05.2010 has stated the following : 8. That with regard to the fifth query of the order dated 11.05.2010, the depon ent states that a separate scrutiny report on the selection of the respondent No . 5 or other individual candidates has not been prepared by the State Level Sele ction Committee of the Directorate of Elementary Education, Assam. However, a me eting of the State Level Committee held on 01.12.2008 wherein certain rules were decided to be followed for selection of the candidates for appointment to the p osts of teachers in Government Lower Primary, Upper Primary and Practicing Schoo ls. As per the resolution of the said meeting, the State Level Committee scrutin ized the screened list prepared by the District Screening Committee as to whethe r marks have been allotted to the candidates in terms of the prescribed guidelin es issued by the Directorate. On thorough scrutiny, it is found that the marks h ave been allotted as per the guidelines without any deviation and as such, the r espondent No. 5 has been selected on basis of merit. From the above, it is clear and apparent that there is contradictory sta nd on the part of the Director. The above quoted portion of the letter dated 10. 05.2010 speaks of further scrutiny and selection of the respondent No.5 by the S tate Level Committee, but on the other hand in paragraph -8 of the affidavit, it has been stated that no separate scrutiny and report in respect of selection of the respondent No. 5 was prepared by the State Level Selection Committee. On pe rusal of the State Level Committee minutes, what is found is that there is nothi ng to indicate that the said Committee had selected the respondent No. 5 as was stated in the letter dated 10.05.2010. The Director shall explain the aforesaid contradictions which on the fac e of it amount to misleading the Court. As regards the total cadre strength, it has been stated in the affidavit that there being one vacancy/post in the school , the total cadre strength is only one. But on perusal of the employment notice dated 22.12.05, it appears that the same was not in respect of only one school. In the next affidavit to be filed by the Director, he shall clarify whether the cadre strength is taken school wise or as a whole. In the affidavit he shall als o annex the rules/executive guidelines for filling up the post of Assamese Langu age teacher. List the matter on 14.06.2010. Mr. U.K. Goswami, learned Standing counse l, Education Department shall keep in readiness the aforesaid letter dated 10.05 .2010 for further perusal by this Court. Let a copy of this order be furnished t o him. [10] The Director has filed an affidavit on 18.06.2010 in terms of th e above order and in the said affidavit it has been admitted that there was erro r in conveying the information through the letter dated 10.05.2010 and while fil ing the earlier affidavit dated 31.05.2010. [11] Along with the aforesaid affidavit the Annexure-1 colly document s have been annexed to show that the State Level Committee had selected the resp ondent No.5 with the remark that since there was only one vacancy, no reservatio n and roster are applicable. In this connection, Mr. N Dhar, learned counsel for the petitioner by referring to the employment notice dated 23.12.2005 has submi tted that in the advertisement itself 3 vacancies, 1 for Assamese Language Teach er and 2 for Assistant Teacher had been shown and thus, it cannot be a case of l one vacancy. He further submits that reservation will apply on the total cadre s trength and against the posts and not on the basis of the time-to-time vacancies , which may arise. [12] I have considered the rival submissions made by the learned coun sel for the parties and the materials available on record. There is nothing to i ndicate as to why the petitioner was recommended by the District Screening Commi ttee as the first nominee indicating against her name that she is a reserved cat egory candidate (SC). The most vital issue will be as to what is the total cadre strength. Reservation will apply not against the time-to-time vacancy but again st the total cadre strength and the percentage of reservation will have to be wo rked out on the basis of the total cadre strength. Although this aspect of the m atter was highlighted in the order dated 11.05.2010 but in the affidavit filed b y the respondents nothing has been indicated as to what is the total cadre stren gth. As has been held by the Apex Court in R.K. Sabharwal and Ors. Vs. State of Punjab and Ors. reported in (1995) 2 SCC 745, it is the post based roster and no t vacancy based roster, which is applicable and the percentage of reservation wi ll have to be worked out on the basis of total cadre strength and not on the bas is of time-to-time vacancies. [13] All the above aspects of the matter will have to be gone into fo r proper adjudication of the matter. In absence of any materials on record more particularly, about the total cadre strength of Assamese Language Teacher and as to whether the total cadre strength is worked out on the basis of the all the p osts including the Assamese Language Teacher, it is not possible for this Court to carry out a roving enquiry. Whether, the petitioner is entitled to some addit ional marks because of her higher qualification and experience, will also have t o be worked out. [14] In view of the above, this writ petition is disposed of remittin g the matter back to the Commissioner and Secretary to the Government Assam in t he Education (Elementary) Department for an appropriate decision in the matter a nd if need be, personal hearing be given to both the parties involved. [15] Let the matter be decided by the said Commissioner and Secretary , as expeditiously as possible preferably within 4(four) months.