WP(C) 4981/2006 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. PJ Phukan, learned counsel for the petitioners as well as Ms. P. Chakraborty, learned Standing Counsel, Social Welfare Department. I h ave also heard Mr. A. Dhar, learned counsel for the respondents No. 5 and 6. The petitioners who had appeared in the selection for the post o f Supervisor in the Social Welfare Department filed this writ petition to set as ide and quash the appointments made in favour of the respondents No. 5 and 6. Fu rther prayer made in the writ petition is to give appointments to the petitioner s on the basis of their merit positions in the select list. In this connection, the petitioners have annexed the select list published vide Notification dated 1 1.11.2005 (Annexure-G). Be it stated here that the selection was conducted distr ict-wise and in the present proceeding we are concerned with Sivasagar District. In paragraph 4 of the writ petition, the petitioners have stated that in the se lect list they occupied merit positions at serial No. 6 and 9 respectively. Furt her statement made is that they would occupy a few positions above the said posi tion if the same were rescheduled following the reservation policy. However, in the said statement there is no indication as to what would have been their merit positions had the reservation being followed. In paragraph 6 of the writ petition, although a statement has be en made that the respondents No. 5 and 6 occupied lower merit positions than tha t of the petitioners, but nothing has been indicated as to what was their merit positions. In the counter affidavit filed by the respondent through the Pro ject Officer in the office of the Directorate of Social Welfare, Assam, it has b een stated that the merit position occupied by the petitioner No. 1 was 24 and t hat the petitioner No. 2 failed to qualify in the selection. According to the sa id affidavit the name of the respondent No. 5 did not figure in the select list and of the respondent No. 6 figured at serial No. 34. It has further been stated in the affidavit that only 10 vacancies having been filled up for which adverti sement was made, the petitioners could not be appointed having regard to their m erit position. In the writ petition, the petitioner No. 2 is Smt. Anjali Saikia and the respondent No. 5 is Smt. Mandira Hatibaruah. On the other hand, in the select list there is one Ms. Anjali Sikha Bora, whom learned counsel for the pet itioner has now projected to be the petitioner No. 2. According to the submissio ns made by the learned counsel for the petitioner, the petitioner No. 2 having o ccupied merit positions at serial No. 34, the respondent in their affidavit coul d not have and ought not to have stated that the petitioner No. 2 is not a selec ted candidate. This submission made by the learned counsel for the petitioner is required to be rejected outright in view of the fact that the petitioner No. 2 is Smt. Anjali Saikia and the selected candidate at serial No. 34 is Ms. Anjali Sikha Bora. In the writ petition, there is no explanation regarding the variatio n in the names and as to how the petitioner No. 2 namely Smt. Anjali Saikia coul d have projected her to be a selected candidate at serial No. 34 as Ms. Anjali S ikha Bora. This is a clear case of trying to mislead the Court. In the writ petition, the petitioners have named the respondent No. 5 as Smt. Mandira Hatibaruah daughter of Late Bhuban Hatibaruah by which nam e there is no selected candidate. Serial No. 5 in the merit list is occupied by Ms. Mondira Baruah, daughter of Late Kamal Chandra Hatibaruah. It will be pertinent to mention here that the affidavit-in-oppos ition referred to above was filed on 1.12.2006 in respect of which the petitione rs filed an affidavit-in-reply after four years on 4.11.2010. In the said reply affidavit, it has been stated that the petitioners have got the information on t he basis of the application made as per the provisions of RTI Act that in fact 2 4 appointments have been made as against the claim of the respondents in their a ffidavit that only 10 vacancies were advertised. Having noticed the aforesaid stand in the affidavit-in-reply, th is Court by order dated 14.12.2010 directed the respondent No. 2 to deal with th e aforesaid plea of the petitioners raised in the reply affidavit. The responden t No. 2 having not dealt with the aforesaid plea of the petitioner, this Court w hile taking up the matter today directed personal appearance of Sri Jayanta Kali ta, the Program Officer in the office of the Directorate of Social Welfare who h ad filed the affidavit-in-opposition, to be present in the Court along with rele vant records. In terms of the said direction, he is present in the Court and has clarified the position. He has also produced the relevant records and I have go ne through the same. The records have revealed that initially there were 10 vacancies , but in view of the sanctioning of a few new ICDS Projects during the year in w hich the selection was conducted, a decision was taken to fill up vacancies pert aining to the said new ICDS Projects. Accordingly as against the 10 vacancies ea rlier notified appointments were made beyond the said advertised vacancies and i n the process altogether 24 appointments had been made on the basis of the selec t list. As to whether the aforesaid procedure initiated by the responden ts to fill up the vacancies beyond advertised vacancies was a correct procedure or not is not the issue before this Court. Consequently no opinion is expressed in this regard. It will also be pertinent to mention here that the selected and appointed candidates against the vacancies in the new ICDS Projects are also not party respondents in this proceeding. From the above, what is seen is that while the petitioner No. 1 is a selected candidate her merit position being at serial No. 24, the petitione r No. 2 is not a selected candidate. As against the claim of the petitioners tha t the respondents No. 5 and 6 are below them in the merit position, on perusal o f the merit list from the original records what is seen is that their merit posi tion are at serial No. 5 and 10. Be it stated here that the respondent No. 5 has entered appearance in this proceeding although in the writ petition, she has be en named as Mandira Hatibaruah. It is in this context, in the affidavit-in-oppos ition filed by the respondent, it has been stated that the respondent No. 5 is n ot a selected candidate. This now leads us to the last argument advanced by Mr. PJ Phukan , learned counsel for the petitioners that although the petitioners may not have any claim against the respondent No. 6 and also leaving aside the case of the p etitioner NO. 2, the petitioner No. 1 being a OBC category candidate, she is ent itled to get appointment by operating 100 point roster published vide office mem orandum dated 20.4.2005. The petitioner No. 1 has claimed reservation on the bas is of her purported status as an OBC category candidate. However, on perusal of the original select list, what is found is that she is a general category candid ate. In the writ petition, the petitioners have annexed Annexure-C certificates certifying that the petitioner No. 1 belongs to OBC category. However, it is not known as to whether same was indicated by her when she offered candidature. Sam e is the case with the respondent No. 6, who has been sown to be a general categ ory candidate in the select list at serial No. 10. However, in the affidavit-in- opposition filed by the respondents No. 5 and 6, OBC certificate pertaining to r espondent No. 6 has been annexed. Even if the petitioner No. 1 at serial No. 24 is considered to b e an OBC category candidate, then also above her there are altogether as many as 14 OBC category candidates including the respondent No. 6. Although Mr. Phukan, learned counsel for the petitioners has sub mitted that the OBC category candidates who could make it to the select list on the basis of their merit cannot be treated as reserved category candidate and co nsequently the petitioner No. 1, being a reserved category candidate (OBC) shoul d be appointed on reservation, but in absence of any specific pleaded case that if the petitioner No. 1 is treated to be an OBC category candidate then in that case she would make it on the basis of the percentage of reservation and by oper ating 100 point roster, the said plea cannot be accepted. It will also be pertin ent to mention here that if the petitioner No. 1 is treated as a general categor y candidate, then also above her there are 6 general category candidates includi ng the respondent No. 6. For all the aforesaid reasons I do not find any merit in the wri t petition and accordingly the writ petition is dismissed. The records produced by Sri Kalita, the Program Officer is retur ned. His personal appearance also stands dispensed with.