Decided on June 15,2010

Bhim Bahadur Chhetri And Others Appellant
State Of Sikkim And Others Respondents


Barin Ghosh - (1.) On 26th April, 2007 an advertisement was published inviting applications from eligible local candidates for filing up vacancies of Primary Teachers. In the advertisement it was indicated that there are 71 vacancies altogether, of them, amongst others, 8 are reserved for Other Backward Class candidates, of which 2 are reserved for women. The advertisement also mentioned that 22 vacancies are re- served for Most Backward Class Community and amongst them 7 are reserved for women. At the same time, it was indicated in the advertisement that 9 vacancies are available for Scheduled Caste candidates of which 4 are reserved for women. Petitioners, originally 5 in number, respondent to the advertisement. Subsequently, they all appeared at written examination followed by viva-voce. Thereafter, a select list was published. In that it was shown that each of the petitioners has been selected. However, the said list was cancelled and another select list containing names of 63 candidates was published, where it was shown that none of the petitioners has been selected. The said state of affair led to filing of the present writ petition. During the pendency of the writ petition, two of the petitioners, having succeeded in subsequent selection of primary teachers, gave a go by to the challenge thrown by them in the present writ. petition and, accordingly, they were deleted as petitioners of the present writ petition.
(2.) In the premises, the writ petition is now only by three writ petitioners, namely, Bhim Bahadur Chettri, belonging to Other Backward Class category. Ramesh Challisey, also belonging to Other Backward Class category, and Tashi Norbu Lepcha, belonging to Scheduled Tribe category. In the writ petition the main thrust was that in the first select list petitioners having been shown to have been selected, they could not be deselected by publication of a subsequent select list. Official respondents in their counter affidavit have stated that the first select list was a product of mistake, in as much as, reservation for women as was available and published in the advertisement had not been followed while publishing the first select list. It was contended that despite many women candidates having out-beaten men candidates in merit were shown to have been selected against posts reserved for women, while the first select list was published, whereas they should have been selected against posts available to the category they belonged. It was contended that the said mistake was rectified in the second select list. The said respondents have brought on record all necessary materials to justify their condition. Those have been perused and there from it appears that contention of the said respondents is correct. A product of mistake does not give rise to any right and the same can always be rectified. In the circumstances, the Court is unable to give benefit to the petitioners of the mistake that was committed in the first select list.
(3.) Petitioners however contended that altogether 71 vacancies were available and the second select list contained names of 63 candidates, which suggests that 8 vacancies were still available. They contended that as per the official respondents, of those 8 vacancies, 5 were reserved for Scheduled Castes and in as much as candidates belonging to Scheduled Castes did not succeed in the selection, 5 vacancies were carried forward, but the fact remains that there is no just reason for not supplying the remaining 3 vacancies, which were reserved, one for Most Backward Class (Blind Low Vision), one for Most Backward Class (Ex-Servicemen) and one for Scheduled Tribe (Ex-Servicemen), in as much as, notification dated 20th November, 2003 relied by the said respondents makes it clear that no carrying forward of roster points reserved for Ex-Servicemen and persons with disability is permissible. Clause 6 of the said notification makes the same amply clear. In the circumstances, as contended in the counter by the official respondents, they could not carry forward the vacancy reserved for Most Backward Class (Blind Low Vision), vacancy reserved for Most Backward Class (Ex-Servicemen) and the vacancy reserved for Scheduled Caste (Ex-Servicemen). Inasmuch as, petitioner Tashi Norbu Lepcha is a Scheduled Tribe, he could supply the vacancy reserved for Scheduled Tribe (Ex-Servicemen) if the same was not carried forward, provided, on the basis of merit amongst Scheduled Tribe candidates, he could supply the vacancy. In order to ascertain the same, the matter was adjourned on the last occasion. After careful consideration of the merit list of Scheduled Tribe candidates, it is now not in dispute that if one more post was available for Scheduled Tribe candidates, petitioner Tashi Norbu Lepcha could supply the same. In as much as, Clause 6 of notification dated 20th November, 2003 dealing with the subject makes it abundantly clear that no reserved post for Ex-Servicemen can be carried forward, and if an Ex-Servicemen is not available then the vacancy should be supplied by a candidate belonging to the same reserved category as per merit, there is no dispute that Tashi Norbu Lepcha was entitled to supply the said vacancy and, accordingly, a mandamus is issued upon the official respondents to ensure supplying of the said vacancy by Tashi Norbu Lepcha. The said respondents are directed to comply with the said direction as quickly as possible, but not later than two months from today.;

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