IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9607 of 2008 KALPANA SINGH WIFE OF DR. ABHAY KUMAR, RESIDENT OF A/314 SAGAR APARTMENT JAGRITI NAGAR, P.S. RAJIV NAGAR, DISTRICT PATNA------PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH SECRETARY DEPARTMENT OF HEALTH, PATNA 2. THE DIRECTOR OF INDIRA GANDHI INSTITUTE OF MEDICAL SCIENCES, SHEKHPURA, PATNA-14 3. THE MEMBER OF BOARD OF GOVERNERS OF IGIMS, PATNA 4. DR. SINGITA PANKAJ D/O MR. M.P. CHOUDHARY, RESIDENT OF 1/3 M.D.H., IGIMS, CAMPUR RAZA BAJAR, P.S. SHASTRI NAGAR, DISTRICT PATNA----RESPONDENT. ----------- For Petitioner:- Mr. Manoj Kumar, Advocate For IGIMS:- Mr. Sunil Kr. Singh,Advocate For Private Respondent:- Mr. Rashid Izhar,Advocate 7 7 .04.2010 Writ application has been filed challenging the notification/ advertisement no. 03 /2008/Faculty/Estt dated 2.6.2008, whereby applications were invited for appointment of Assistant Professor of Gynae- Oncology in Cancer Treatment and Research Centre in I.G.I.MM.S., Patna, on the ground that it is violative of Articles 14, 15 and 16 of the Constitution of India. On 2.6.2008 an advertisement was issued under the signature of Director, I.G.I.M.S., Patna vide advertisement no. 3 of 2 2008/Faculty/Estt for a single post of Assistant Professor in Gynae-Oncology in Cancer Treatment and Research Centre, in reserved S.C. category. Petitioner’s case is that since advertisement was for a single post, as such it could not have been reserved, as per the law laid down by the Supreme Court in several decisions. The reservation against single post amounts to 100% reservation, which is not permissible in the eye of law. I.A. No. 5592 of 2008 was filed by Dr. Sangeeta Pankaj for impleading her as party respondent, since she had already been selected and appointed against the advertised post. Considering that intervenor is a necessary party, she was allowed and to be impleaded as party respondent. The petition filed by the Intervenor- 3 respondent and the counter affidavit filed on behalf of Director, Indira Gandhi Institute of Medical Sciences( Respondent no.2) as well as Member of Board of Governers of IGIMS, Patna (Respondent no.3), disclosed that the advertisement No. 3 of 2008 was a process for filling up the reserved backlog vacancy arising from the advertisement no. 5 of Emp./1996 of IGIMS, since the reserved post for Scheduled caste remained unfilled in the earlieir appointment process, as such advertisement No. 3 of 2008 was published. In the earlier appointment process, through advertisement No. 5 of 1996/IGIMS, three posts of Assistant Professor in the Department of Oncology were advertised. The Deputy Secretary, Department of Personnel and Administrative Reforms, had requested to appoint Assistant Professor in Radiation Oncology in Scheduled Caste category but subsequently on the 4 basis of a resolution taken in the meeting dated 3.4.2008 of Inter-Departmental Committee, it was decided vide Government order dated 9.4.2008, to appoint Assistant Professor in Gynecology Oncology in place of Radiation Oncology. Accordingly, in order to clear the backlog, the post was advertised, through advertisement No. 3 of 2008 dated 2.6.2008, only for one post. Reservation, against one post is permissible, as per Article 16(4B) of the Constitution of India, when the appointment is for the purposes of clearing the backlog vacancies in reserved category, it will be treated as the separate category apart from other vacancies and in such case the limit of 50% reservation will not apply. In the counter affidavit filed on behalf of respondent no.4, it is also stated that the process of selection in general category was earlier filled up through advertisement no.5 of 5 1996 and the appointments were made on the post of Surgical E.N.T. and one reserved post of scheduled caste could not be filled up, as such it remained vacant/unfilled and readvertised, in view of the request made by the personnel and Administrative Reforms Department, Government of Bihar, Patna, The National Commission for Scheduled Castes and Scheduled Tribes, Bihar, through its letter dated 28.2.2003, raised Inspection in matters of non maintenance of roaster and violation of the constitutional provisions of reservations for the SC/ST candidates. The Commission of S.C./S/T., State Office Bihar, Patna, intervened and asked explanation for non-maintenance of roaster in the appointment process in IGIMS. The Commission for SC and ST requested to initiate a process to assess the backlog vacancies existing in different department of IGIMS,Patna. When the report was 6 submitted, it was discovered that various backlog vacancies were existing, only in reserved category posts in the different department of IGIMS.,Patna. Accordingly the Department of Personnel and Administrative Reforms, Government of Bihar, directed to fill up all backlog vacancies in reserved category in the different departments of I.G.I.M.S.,Patna and the IGIMS advertised the post of Assistant Professor of Gynae Oncology in Caner Treatment and Research Centre by advertisement no. 3 of 2008/Faculty/Estt. Petitioner in reply to the counter affidavit has not made any statement. There is no denial to the statement made in the counter affidavit. I do not find any illegality has been committed, since it is an advertisement in consonance of provision under Article 16(4B) of the Constitution of India; a single post in the reserved category to fill up the backlog vacancy in the reserved category, cannot 7 be advertised and such kind of reservations cannot be treated as violative of Articles 14 and 16 of the Constitution of India, rather it will come within the exception as provided under the Article 16 (4B) of the Constitution of India. I do not find any reason to interfere with this matter, there being no illegality either in the advertisement as well as appointment. This writ application is dismissed. (Mridula Mishra,J.) A.kumar