WP(C) 4115/2009 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA 1. Although the petitioner by means of this writ petition has praye d for setting aside and quashing of the appointment of the respondent No. 5 as S ubject Teacher (Education) in the particular school, but the order of appointmen t as such has neither been enclosed nor put to challenge. 2. The facts materials for the purpose of disposal of the writ petition are that the petitioner who is an MA in Education with B.Ed. degree had been servin g in the school called Jugijan Higher Secondary School, Nagaon for the period fr om 01.08.2006 to 04.09.2009 as honourary Subject Teacher in Education. Although she had applied for regular appointment against the said post pursuant to the ad vertisement dated 03.06.07 (Annexure-5) and duly appeared in the selection condu cted by the selection committee, but she having not been appointed and instead t he respondent No. 5 having been appointed, she has filed the instant writ petiti on. Be it stated here that the advertisement was published by the Director of Se condary Education, Assam for as many as 158 numbers of posts of Subject Teacher in different schools throughout the State one of which was for the post of Subje ct Teacher in Education in the school in which the petitioner had been serving a s Honourary Teacher, namely Jugijan H.S. School. 3. Admittedly, the respondent No. 5 has been appointed as reserved category candidate (OBC). The two fold contentions of the petitioner is that taking into account the number of teachers working in the school and the reserved category teachers already available in the school, as per the 20 point Roster applicable to the case, the respondent No. 5 could not have been appointed against the par ticular Roster point. The second contention raised is that the petitioner having secured better marks than the respondent No. 5 in the selection, she ought to h ave been appointed instead of appointing respondent No. 5 in the name of reserva tion, more so when in the advertisement there was no indication that there would be reservation against the post. 4. In the counter affidavits filed by the respondents both official and pri vate, i.e. the respondent No. 5, what has been contended is that as per the rese rvation policy of the State, the post in question being earmarked for OBC candid ate and the respondent No. 5 belonging to the said category, has been appointed as he is more meritorious candidate amongst the OBC candidates. 5. I have heard Mr. M.J. Quadir, learned counsel for the petitioner as well as Dr. Y.K. Phukan, learned Sr. counsel assisted by Ms. S. Borah, leanred couns el appearing for the respondent No. 5. I have also heard Mr. S.K. Sas, learned S tanding counsel, Education Department. 6. Mr. Quadir, learned counsel for the petitioner highlighting the aforesai d two contentions and placing reliance on the decisions reported in (1) 2006 (1) GLT 190 (KK Rajesh Vs. Arunachal Pradesh and others); (2) (1998) 4 SCC 01 (Post Graduate Institute of Medical Education vs. Faculty Association) and (3) (1988) 2 SCC 214 (Dr. Chokadhar Paswan vs. State of Bihar) submitted that the responde nts acted illegally in appointing the respondent No. 5 to the deprivation of the petitioner. 7. On the other hand, Mr. Y.K. Phukan, learned Sr. counsel appearing for th e respondent No. 5 submitted that the appointing authority was duty bound to fo llow the reservation policy of the State and that the advertisement itself havin g mentioned that the reservation provision for appointment would be followed as per Rule, the respondent No. 5 has rightly been appointed as reserved category c andidate (OBC) on the basis of the percentage of reservation applicable to the s aid category. 8. Mr. S.K. Das, learned Standing counsel, Education Department also made s ubmission supporting the action of the official respondents in appointing the re spondent No. 5 as a reserved category candidate (OBC). He has also produced the records pertaining to the case. 9. The fact that the petitioner had been serving as Honourary Teacher in th e school for the period from 01.08.06 to 04.09.09, that by itself cannot clothe the petitioner with any kind of right to get regular appointment which will have to be as per the provisions of recruitment rules. In the instant case, the rule that is applicable is Assam Secondary Education (Provincialised) Services Rules , 2003. A few provisions of the said rules which are considered relevant are quo ted below: 2. Definition: (a) Act means the Assam Secondary Education (Provincialisation) Act, 1977. (b) Appointing authority means- (i) The Director of Secondary Education, Assam in respect of the cadres of Princ ipal, Vice-Principal, Headmaster, Head Mistress, Assistant Headmaster, Assistant Head-Mistress, Post-Graduate Teacher, demonstrator mentioned in rules 3(1) (b) and 3(1) (b) (i) and (v) (ii) & (c) Appointment means assignment of service issued by the appointing Authority to a person selected in accordance with the provisions of these rules; (d) & (e) & (f) & (g) & (h) School Selection Committee means the Committee as referred to under rule 8 (c) (i) District Approval Committee means the Committee as referred to under rule 8 (d) (j) & (k) & (l) & (m) & (n) & (o) & (p) & (q) & (r) & (s) Service means the Assam Secondary Education (Provincialised) Service. (t) & (u) & (v) & (w) Member means the member of the Service. 3. Class and Cadres- (1) The service inprovincialised School shall consist of th e teaching and non-teaching staff. The teaching staff shall consist of the follo wing classes and cadres: (a) Class-II (Senior)- It shall include the cadres of (i) Principal; (ii) Vice-Principal; (iii) Post-Graduate Teacher (iv) Head Master/Head Mistress/Superintendent; (b) Class -II (Junior) - it shall include the cadres of (i) Assistant Head Master/Asstt. Head Mistress/Asstt. Superintendent; (ii) Graduate Teacher, Hindi teacher having Bachelor Degree, Classical teacher ( Sankrit/ Arabic, Assamese Language teacher; (iii) Senior Classical teacher without general Degree (iv) Junior teacher/Junior Classical teacher/Junior Hindi Teacher/ Music teacher (v) Demonstrator (vi) Craft teacher 7. Recruitment to the post of Post-Graduate Teacher of Provincialised Higher Sec ondary School and Selection Procedure- (a) & (b) & (c) & (d) & (e) After approval of the State Level Approval Committee the Director of Seconda ry Education, Assam shall appoint the candidates observing all formalities; (f) & (g) The validity of the select list shall not exceed beyond one year from the da te of publication. 10. From the aforesaid provision of the Rules what is seen is that the post of Post Graduate Teacher is in the category of Class-II (Senior). Under Rule- 3 , on the commencement of the Rules, the strength of service and the kind of post therein shall be as mentioned in Schedule-III appended to the Rules. Under Sche dule- III, the post of Headmaster, Vice-Principal and Post Graduate Teacher have been clubbed together as Grade-II cadre mentioning the number of posts in each category. So far as the cadre strength of Post Graduate Teacher is concerned, sa me at the commencement of the Rules was 5498. 11. According to the petitioner, since in the school in question there were already four Post Graduate teachers including that of an OBC teacher and an SC T eacher, as per the Roster point, the 5th post could not have been given to the r espondent No. 5. Referring to the Office Memorandum dated 20.12.05 laying down t he methodology of the operation of the Roster for OBC and MOBC candidate in the matter of direct recruitment, it is the stand of the petitioner that the vacancy in question being the 5th one in the school, should have been filled up through the petitioner as a general category candidate and not through an OBC candidate , i.e. the respondent No. 5. 12. As per the above Roster point indicated in the said Office Memorandum, t he second vacancy is reserved for OBC/ MOBC and the 5th vacancy is unreserved. T o answer this plea of the petitioner, suffice is to say that the plea is wholly misconceived to projected that reservation would apply school wise. The advertis ement for 158 posts was a composite one and not for the particular school alone. That apart, as noticed above, it is not school wise cadre of Post Graduate Teac her, but under Rule- III, the said posts are in a composite cadre, which is Clas s-II (Senior). The cadre strength of Post Graduate Teacher as a whole has also b een noticed above. Thus, it cannot be said that the Roster will have to be opera ted school wise and not on the basis of total cadre strength. 13. Apart from the above, unless it is shown that the existing OBC candidate working in the school which is said to be Post Graduate Teacher in Economics, w as appointed as an OBC candidate, the petitioner cannot jump to the conclusion t hat the 5th vacancy will have to be provided to a general category candidate. In this connection, the categorical stand of the respondent Nos. 3 and 4, i.e. the school Managing Committee and the Selection Board will clinch the issue. In th e affidavit in opposition filed by the said two respondents, it has been categor ically stated in paragraph-6 that the Post Graduate Teachers were not appointed applying the reservation policy, but they were appointed on the basis of their m erit without following any reservation policy. The services of the earlier incum bents had been provincialised at the time of provincialisation of the school and none of the teachers had been appointed following the reservation policy. 14. The above particular stand of the said two respondents has not been deni ed by the petitioner in his affidavit in reply. Thus, even if the contention of the petitioner that reservation Roster will have be applied school wise is accep ted, although not acceptable, then also it cannot be said that the 5th vacancy i n the school will have to be provided to a general category candidate. As notice d above, the second Roster point is meant for OBC/MOBC and if the earlier incumb ents were not appointed following the reservation policy then certainly the said Roster point will have to be carried forward and applied on availability of the OBC category candidate which in the instant case, is the respondent No. 5. 15. The records produced by Mr. S.K. Das, learned Standing counsel, Educatio n Department indicates drawing of composite merit list by the State Level Approv al Committee indicating the category to which the candidates belong to. On perus al of the said merit list what is seen is that the respondent No. 5 was recommen ded for appointment as a reserved category candidate, i.e. OBC. It is on this co unt, although the petitioner a general category candidate had secured 147.95 mar ks in the selection, could not be appointed on the basis of percentage of marks, as the reservation and Roster point fell due for an OBC candidate. Consequently , the respondent No. 5 who had secured 146.53 marks in the selection was appoint ed. 16. The decisions on which the learned counsel for the petitioner has placed reliance are totally out of context. In K.K. Rajesh (supra), the deprivation of the petitioner who had topped the select list against a single vacancy was inte rfered with as there could not have been any reservation against a single post. The instant case is not of a single cadre post as per the own case of the petiti oner. 17. Similar view was expressed in Faculty Association (supra). It was held t hat reservation cannot be applied through Roster or otherwise against a single c adre post as the same would mean 100% reservation. 18. In Dr. Chokadhar Paswan (supra) referring to the provision of the partic ular circular where it was found that 50 point Roster was to be applied to the p ost belonging to the same cadre, but the particular post not belonging to the sa id cadre was grouped together for the purpose of implementing 50 point Roster, t he Apex Court held that reservation could not have been applied. It is not under stood as to how this case could come to aid to the case of the petitioner. 19. The petitioner has only harped on the Roster point without referring to the total cadre strength and the percentage of reservation applicable. In R.K. S abharwal vs. State of Punjab (1995) 2 SCC 745, it was held that percentage of re servation is to be worked out in relation to the number of posts, which form cad re strength. The concept of vacancy is not relevant in operating the percentag e of reservation. The Govt. has to apply the cadre strength as a unit in the ope ration of Roster in order to ascertain as to whether a given class/ group is ade quately represented in service. The cadre strength as a unit also ensures that t he reservation remains within 50% limit, is not violated. Further, the Roster is to be on the basis of the post specified and not vacancy-based. In paragraph-6 of the judgment, it was observed that the cadre strength is always measured by t he number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence, the perce ntage of reservation has to be worked out in relation to the number of posts whi ch form the cadre strength. The concept of vacancy has no relevance in operati ng the percentage of reservation. 20. At the beginning of this judgment it has been noted that although the pr ayer of the petitioner is to set aside and quash the appointment of the responde nt No. 5 and to appoint him to the post of Post Graduate Teacher, but there is n o challenge to the appointment order as such by which the respondent No. 5 was a ppointed. As has been held by the Apex Court in Surinder Singh Vs. Central Govt. reported in AIR 1986 SC 2166 and also in (2001) 9 SCC 344 (Hindustan Petroleum Corporation Ltd. vs. Sunita Mehta) there being no formal challenge to the order in question, same cannot be set aside. 21. In the instant writ petition the petitioner has not put any formal chall enge to the order of appointment to the respondent No. 5. In such a situation, e ven otherwise also the order appointing the respondent No. 5 which does not form part of the writ petition, cannot be set aside and quashed. However, this aspec t of the matter need not detain us in view of the above finding on merit of the case. 22. For all the aforesaid reasons, the writ petition is dismissed. However, there shall be no order as to costs.