WP(C) 4606/2009 BEFORE HON’BLE MR JUSTICE HRISHIKESH ROY Heard Mr.K.K.Mahanta, the learned senior counsel for the petitioner. The official respondents are represented by Mr.U.C.Goswami, the learned S.C., Educa tion Department. Mr R.K.Deb Choudhury appears for the private respondent No.6. 2. The petitioner, offered his candidature for the post of Subject Teacher in History in the Doboka Higher Secondary School in Nagaon district. He responde d to the advertisement dated 3.6.2007 (Annexure-3) issued by the Director of Sec ondary Education, Assam who notified 158 vacancies in different Higher Secondary Schools. The advertisement required the candidates to specify the school and th e post for which the candidature is offered. It was also notified that the selec tion will be made as per Assam Secondary Education(Provincialisation) Service Ru les, 2003 (hereinafter referred to as the Rules ) by following the provision o f the reservation. 3. For the post of Subject teacher in the Doboka Higher Secondary School ,t he selection was held on 2.9.2007 and candidates were evaluated in the academic and viva-voce segment, on a total score 250 marks. The petitioner having sec ured 149.6 marks was placed in the Ist position in the panel (Annexure-8) and th e respondent No.6 with 106.88 marks was placed 4th in order of merit. Subsequent ly the DSE issued the impugned order on 3.9.2009, appointing the respondent no.6 as Subject Teacher in History, in the Doboka Higher Secondary School. 4.1 Mr.K.K.Mahanta, the learned Senior Counsel submits that the petitioner w as empanelled in the Ist merit position in selection and therefore, the responde nt No.6 shouldn’t have been appointed because of his less meritorious performan ce. 4.2 The petitioner also submits that since the selection for the post was no t confined to only ST(P) category candidates, the petitioner who is a general ca tegory candidate should have been considered for appointment, by virtue of his better performance in the selection. 4.3 The counsel further submits that since only a single post in the Doboka Higher Secondary School was to be filled up, the same cannot be kept reserved s ince, reservation to a single post is impermissible in law. 5. Mr.UK Goswami the learned Departmental counsel on the other hand submit s that the advertisement issued by the DSE clearly indicated that reservation cr iteria is to be followed for appointment to the advertised vacancy. He further s ubmits that the post of Subject Teacher in History in the Doboka Higher Secondar y School according to the applicable reservation roster is to be filled up by ST (P) candidate and since the respondent No.6 is of that category , appointment w as given to the ST(P) candidate and the petitioner couldn’t have been considered for the post despite his better performance, as he is of general category. 6. Representing the respondent No.6, Mr.R.K.Deb Choudhury, the learned coun sel submits that the reservation roster for the vacancies in the Doboka Higher Secondary School is maintained on regular basis and since the post in question , is to be filled by a ST(P) category candidate, the petitioner as a general c ategory person, wasn’t eligible for appointment and accordingly, he contends tha t the respondent No.6 was rightly offered the appointment. 7. Before considering the impact of the rival submission, it would be appr opriate at this stage to examine the recruitment process prescribed by the Rules . The selection for the post of Post Graduate teacher of provincialised higher s econdary schools are to be made under Rule 7. A school selection committee const ituted under Rule 8(c) is authorised to make the selection. Under Clause (I) of sub Rule (b) of Rule 7(2), selection is to be made on a total score of 250. Sche dule I of the Rules specify 25 marks for viva voce segment out of maximum marks of 250. Under sub-Clause (c) of Rule 7(2), the select list prepared by the schoo l selection committee is to be forwarded to the DSE for approval and the State L evel Approval Committee specified under sub Rule (d), is required to accord appr oval to the select list forwarded by the school selection committee. Only after approval is granted by the State Committee, the DSE can make appointment under s ub Rule (c) of Rule 7 of the Rules. Under Rule 18 reservation as per the pro vision of the Reservation Act and the Rules are to be made. 8. While the petitioner stakes his claim for appointment by virtue of his merit position in the panel prepared by the school selection committee, it is n ot clear from the available materials as to whether, the said list was actual ly approved by the State Level Approval Committee under sub Rule (d) of Rule 7. As is already noted, the appointment by the DSE has to be preceded by an app roval under sub Rule(e) of Rule 7. 9. The impugned appointment order does not show that the respondent No.6 wa s given appointment by considering that the post is meant only for ST(P) candida tes. In any case, if the reservation roster indicated the vacancy to be a reserv ed category post, the selection process should have been confined to reserve cat egory candidates only and the candidature of general and other categories should not have been considered, for a vacancy meant to be filled up by ST(P) candida tes. 10. Furthermore, neither in the advertisement nor at the time of selection, notice was given to the participating candidates that the post is meant for ST(P ) category where candidature of other categories will not be considered. 11. In the aforesaid backdrop, it is difficult to comprehend how the appoint ing authority overlooked the more meritorious candidature of the petitioner, to give appointment to the respondent No.6 particularly when, the appointment ord er is silent about appointment being given to a reserved category post. In suc h circumstances, the appointment given to the respondent No.6 cannot be sustaine d as he was empanelled in the fourth merit position as compared to the first po sition, accorded to the writ petitioner. 12. In so far as the petitioner’s claim for appointment is concerned, the R ules requires the State Level Approval Committee to approve the select list pr epared by the school selection committee, before the same can be acted upon by the DSE to give appointment. However the claim for appointment is based on a ye t to be approved select list, prepared by the school selection committee. Even the, respondents in the case do not say that the select list of 2.9.2007 (Annex ure-8) was ever approved by the State Level Approval Committee. Therefore I don’ t see any enforceable legal right of appointment, in favour of the petitioner. 13. For the forgoing reasons the appointment of respondent No.6 is held to b e unsustainable and the same is quashed. But bearing in mind the possibility of the post being a reserved category post, I feel that the post of Subject Teach er in History in the Doboka Higher Secondary School should be filled up with a fresh advertisement. But the recruiting authority must now specify at the stage of advertisement itself as to whether it is an open vacancy or only meant for r eserved category candidates, by considering the reservation roster, maintained a t the Doboka Higher Secondary School . Accordingly this case is allowed by inter fering with the impugned appointment order with a consequential direction for a fresh appointment process. 14. But before parting with the records, it must be stated that if the pe titioner and respondent No.6 offer their candidature, subject to being eligible on other parameters, their candidature shouldn’t be rejected on age bar relaxat ion of maximum age may be considered for them, in accordance with the Rules in f orce.