Select List Of SC/ST Candidates Must Be Drawn Up Separately To Fill Up Reserved Vacancies: Bombay HC

The Bombay High Court, Goa has reiterated that the select list of SC/ST (Scheduled Caste/Scheduled Tribe) candidates must be drawn up separately to fill up the reserved vacancies and the officers belonging to such classes should be adjudged separately.

The Court was dealing with a petition in which the petitioner, a candidate was aggrieved by not considering her candidature for the promotional post of Upper Division Clerk (UDC) as well as the post of Municipal Inspector.

A Division Bench comprising Justice Prakash D. Naik and Justice Bharat P. Deshpande observed, “The contentions of Mr. Sawant that seperate list of eligible candidates from schedule caste category ought to have been prepared, is supported by the observations of this Court in the case of Baby Anumanta (supra). The Division Bench of this Court by referring to Office Memorandum dated 11.07.1968 observed that it has been specifically provided that there shall be reservation to the promotions to the post by selection in group C and D appointments and it has been laid down that the select list of SC/ST candidates should be drawn up seperately to fill up reserved vacancies and that the officers belonging to this classes should be adjudged seperately and not alongwith other officers and if they are fit for promotion, they will be included in the list irrespective of their merit as compared to other officers.”

In respect of the aforesaid case, the Bench noted that the officers not belonging to scheduled caste and scheduled tribes would not be considered while drawing a separate list for scheduled caste and scheduled tribes.

Advocate Parikshit Sawant appeared for the petitioner while Advocate Aamir Jamadar appeared for the respondent.

In this case, the petitioner being the member of Scheduled Caste basically claimed that while calling for promotion to the post of UDC as well the post of Municipal Inspector, the Departmental Promotion Committee, did not consider her as eligible, though the vacant post for which, Departmental Promotional Committee was constituted, was earlier held by a member of the scheduled caste. The petitioner was initially appointed as a sweeper in the year 1991 and she was then promoted to the post of Supervisor in the year 1997. Since respondent (Commissioner) failed to consider her for the post of Lower Division Clerk (LDC), she filed a writ petition before the High Court and consent terms were filed in the year 2003 wherein the respondent agreed to appoint her to the post of LDC. Accordingly, the petitioner was appointed as LDC in SC category somewhere in the year 2004.

A woman, UDC being member of SC, retired somewhere in April 2004 on medical grounds and a clear vacancy arose in the cadre of UDC of reserved category. Similarly, the post of Municipal Inspector in reserved category also became vacant. The Departmental Promotional Committee (DPC) constituted by the respondent in somewhere 2007 prepared common seniority list and failed to prepare the seniority list amongst the SC candidates for both the posts. DPC filled the post of UDC as well as the Municipal Inspector's post without considering the petitioner, which resulted in filing of the petition.

The High Court in the above regard noted, “… in the present matter, the fault of conducting DPC belatedly cannot deprive the Petitioner who becomes eligible in the meantime to be considered for the post of UDC i.e. on completion of 3 years qualifying service. The DPC was held on 02.08.2007 and by that day, the Petitioner had already qualified to be considered as she had three years standing in the post of LDC. Similarly, the Petitioner being appointed as scheduled caste was also entitled to be considered for the said post.”

The Court referred to the judgment of the Apex Court in the case of R.K. Sabharwal and Others v. State of Punjab and Others (1995) 2 Supreme Court Cases 745. In this case, it was observed that the way to assure equality of opportunity of the backward classes and the general category is to permit the roster to operate till the time respective appointees/promotees occupy the post meant for them in the roster and the vacancies arising in a particular post, the same must be filled from amongst the category to which the post belongs in the roster.

“… when the post held by Ms. Sunita Maralkar became vacant and since she was belonging to the schedule caste category, as per the roster point, such post ought to have been filled by the candidate belonging to schedule caste only. Incase no candidate is available in the schedule caste category, the said post is required to be carried forward for the next year”, further said the Court.

The Court, therefore, observed that no separate list of the candidate belonging to Scheduled Caste was prepared which deprived the petitioner by not considering her.

“It is well settled that the Petitioner cannot claim the post without considering her candidature including suitability. At the most the Petitioner is entitled to be considered to the post of UDC or Municipal Inspector as the case may be by the Departmental Promotion Committee of 2007 and that too by creating separate list of the candidates belonging to such caste”, concluded the Court.

Accordingly, the High Court disposed of the petition and directed the respondent to conduct a revised DPC of 2007 and consider the petitioner for the post if found eligible within three months.

Cause Title- Bharati Sadre v. The Commissioner, Corporation of the City of Panaji & Ors.

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