Radheswar Langthasa vs The State Of Assam And Ors
2023 Latest Caselaw 269 Gua

                                                               Page No.# 1/10

GAHC010015392023




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/363/2023

         RADHESWAR LANGTHASA
         S/O- SRI B LANGTHASA, PRESENT WORKING IN THE POST OF
         SUPERINTENDING ENGINEER, WATER RESOURCES DEPTT, SILCHAR, R/O-
         MASCOT RESIDENCY,JATIA,KAHILIPARA ROAD, N K HOTEL, P RABHA
         PATH, DISPUR, GHY- 781006



         VERSUS

         THE STATE OF ASSAM AND ORS
         REP BY THE CHIEF SECRETARY TO THE GOVT OF ASSAM, DISPUR, GHY-
         781006, ASSAM

         2:THE PRINCIPAL SECRETARY TO THE GOVT OF ASSAM
          PERSONNEL (B) DEPTT
          SECRETARIAT
          DISPUR
          GHY- 781006
         ASSAM

         3:THE ADDITIONAL CHIEF SECRETARY TO THE GOVT OF ASSAM
          DEPTT OF WELFARE OF PLAIN TRIBES AND BACKWARD CLASSES
          DISPUR
          GHY- 781006
         ASSAM

         4:THE SECRETARY
         TO THE GOVT OF ASSAM
          PERSONNEL (B) DEPTT
          SECRETARIAT
          DISPUR
          GHY- 781006
                                                                                  Page No.# 2/10

            5:THE ADDITIONAL CHIEF SECRETARY TO THE GOVT OF ASSAM
            WATER RESOURCES DEPTT
             DISPUR
             GUWAHATI- 781006
            ASSAM

            6:SECRETARY TO THE GOVT OF ASSAM
            WATER RESOURCES DEPTT
             DISPUR
             GUWAHATI- 781006
            ASSAM

Advocate for the Petitioner   : MR. D K DAS

Advocate for the Respondent : GA, ASSAM




                                    BEFORE
                       HONOURABLE MR. JUSTICE SUMAN SHYAM

                                           ORDER

24.01.2023 Heard Mr. D. K. Das, learned counsel assisted by Mr. H. Betala, learned

counsel appearing for the writ petitioner. Also heard Mr. D. Mazumdar, learned

Additional Advocate General, Assam assisted by Mr. D. Nath, learned Senior

Govt. Advocate, Assam appearing for the respondent Nos.1 to 4. Mr. R. Dhar,

learned Standing Counsel, Water Resources Department, Assam is present on

behalf of respondent Nos.5 and 6.

By filing this writ petition the Office Memorandum dated 18.01.2023

(Annexure-G) issued by the respondent No.4 has been put under challenge.

According to the writ petitioner, who belongs to the ST(H) category, Clauses (iii)

and (iv) of the impugned OM dated 18.01.2023 are not only contrary to law but

is also violative of the judgment and order dated 06.06.2022 passed by the

learned Single Judge in WP(C) No.5005/2016 [Bhagwan Pator vs. The State of Page No.# 3/10

Assam and others].

Mr. D. K. Das, learned counsel for the petitioner has argued that by

issuing the impugned OM dated 18.01.2023, in purported compliance of the

judgment and order dated 06.06.2022, the respondent authorities are not only

seeking to take away the benefit of consequential seniority available to a

candidate belonging to the reserved category but is also contemplating to

promote officers junior to petitioner by downgrading the seniority of reserved

category candidate so as to deprive them of the benefits of accelerated

promotion. Contending that there is no change in the State's policy as regards

the benefit of reservation for the SC/ST category candidates, he submits that in

view of the operation of Section 5 of the Scheduled Castes and Scheduled

Tribes (Reservation of Vacancies in Services and Posts) Act, 1978, the impugned

OM is unsustainable in law and hence, is liable to be set aside by this court.

Apprehending that the authorities may initiate consequential action and give

promotion to other candidates junior to the writ petitioner belonging to the

General category, a prayer has been made for issuance of an interim order

suspending the operation of the impugned OM dated 18.01.2023.

In support of his above arguments, Mr. Das has relied upon the decisions

rendered in the case of Chairman and Managing Director, Central Bank of India

and others vs. Central Bank of India SC/ST Employees Welfare Association and

others reported in (2015) 12 SCC 308, Jarnail Singh and others vs. Lachhmi

Narain Gupta and others reported in (2018) 10 SCC 396 as well as M. Nagraj

and others vs. Union of India and others reported in (2006) 8 SCC 212.

Responding to the above arguments, Mr. D. Mazumdar, learned

Additional Advocate General, Assam submits that the impugned OM dated Page No.# 4/10

18.01.2023 has not only been issued in strict compliance of the order dated

06.06.2022 passed by this Court but the same is also consistent with the law laid

down by the Apex Court in the case of M. Nagraj and others (supra). Moreover,

submits Mr. Mazumdar, the impugned OM lays down a policy decision of the

Government which has been categorically permitted by the learned Single

Judge by the impugned judgment and order dated 06.06.2022. Since the

impugned judgment is not under challenge by any candidate belonging to the

reserved category, the petitioner cannot claim any benefit which runs counter

to the ratio of the law laid in the judgment and order dated 06.06.2022.

A cursory reading of the pleadings contained in the writ petition and the

documents annexed thereto goes to show that the petitioner is primarily

aggrieved by the downgrading of his position in the inter-se seniority list of the

Superintendent Engineer in the Water Resources Department, Govt. of Assam

consequent to the impugned OM dated 18.01.2023. To that extent, it is

apparent that the basic claim of the petitioner is of seniority. However,

surprisingly, none of the candidates placed above the petitioner in the

impugned inter-se seniority list have been made party in this writ petition.

Mr. K. N. Choudhury, learned senior counsel assisted by Mr. N. Gautam,

learned counsel submits that although his client belonging to the General

Category of officers, has not been impleaded in the writ petition, yet, he had

appeared and addressed the court in WP(C) No.5005/2016 and considering the

fact that the issues raised in this writ petition would have a relevant bearing on

the interest of his clients this Court may hear him in the matter. Accordingly, the

learned senior counsel was permitted to make his submissions on the law points.

By referring to the decisions of the Hon'ble Supreme Court rendered in Page No.# 5/10

the case of Mukesh Kumar and another vs. The State of Uttarakhand and others

reported in (2020) 3 SCC 1 as well as in the case of M. Nagraj and others

(supra), Mr. Choudhury submits that the decision as to whether the State should

continue with the reservation policy or not and grant consequential seniority to

the candidates belonging to the reserved category is a matter of policy

decision of the State and as long as the criteria is applied uniformly amongst

similarly situated candidates, a writ of mandamus would not lie. Contending

that in the judgment dated 06.06.2022, which is under appeal preferred by his

client, the learned Single Judge has not granted any relief to the reserved

category candidates ,Mr. Choudhury submits that there is no scope for this

Court to interfere with the OM dated 18.01.2023 on the grounds stated in the

writ petition.

Mr. Choudhury has also assailed the maintainability of the writ petition by

contending that the petition is liable to be dismissed merely on the ground of

non-joinder of necessary parties in as much as the departmental candidates

placed higher than the petitioner in the inter-se seniority list including his client,

have not been made party although the seniority list is under challenge.

I have considered the submissions made at the bar and have also gone

through the averments made in the writ petition.

Since this matter has come up for motion hearing, it would not be

necessary for this Court to go into the excruciating details of this case at this

stage. However, since the petitioner's counsel has advanced elaborate

arguments and has also prayed for an interim order restraining the respondents

from giving effect to the impugned OM dated 18.0-1.2023, it would be

necessary for this Court to briefly deal with the contentious issues arising in this Page No.# 6/10

petition.

The OM dated 18.01.2023 lays down certain instructions/guidelines

dealing with the claim of accelerated promotion and/or seniority of reserved

category candidates. Therefore, the said Office Memorandum would apply in

rem.

There is no doubt or dispute in this case that the very basis of the

impugned OM dated 18.01.2023 is the judgment and order dated 06.06.2023.I

find from the materials available on record that by the judgment and order

dated 06.06.2022 the learned Single Judge had disposed of two writ petitions

viz. WP(C) No.5026/2016 and WP(C) No.5005/2016 by making the following

observations in paragraphs 7 and 8 :-

"7. The aforesaid determinations can be summarized in the following manner:

I. The Policy of the state in providing reservation in promotion with consequential seniority is discernable from Section 5 of the 1978 Act read with O.M. dated 12.03.2002. II. II. The Office Memorandum dated 12.03.2002 shall hold the field till such policy is expressly repealed by the State. III. III. O.M. dated. 03.06.2016 is notified laying procedure for collection of quantifiable data on Backwardness and inadequacy of representation and determining efficiency in administration while giving effect to such policy of providing reservation.

IV. IV. Given the dicta of Jarnail Singh (supra), the O.M. dated 03.08.2016 cannot sustain so far, the same relates to the collection of data on backwardness.

V. V. The determination of cadre as a unit for collection of quantifiable data as laid down in OM dated 03.08.2016 conforms to the mandate of Jarnail Singh (supra) and M. Nagraj Page No.# 7/10

(supra) and therefore the same is upheld.

VI. VI. The procedure as laid down for determining efficiency in administration not being arbitrary and not being based on any extraneous consideration, the same is upheld. VII. VII. Article 16 (4B) enables the State to carry forward vacancies and the vacancies carried forward is cannot be included in the ceiling of 50% of the year of filling up vacancies. Section 5A of the Act1978 permits carrying forward vacancies and therefore, the policy of carrying forward as provided in the office memorandum dated 03.08.2016 not being arbitrary and not being based on any extraneous consideration, same is upheld. VIII. VIII. Given the dictum in Jarnail Singh (supra), the judgment made in the Equality Forum-I relating to collection of data to determine of backwardness has become redundant.

IX. IX. Article 16 (4A) and 16 (4B) being enabling provisions, the State is at liberty to implement its policy of giving reservation in promotion with consequential seniority, at liberty to provide for reservation in promotion without consequential seniority or at liberty not to provide any reservation in promotion. However, while implementing/adopting/ changing such policy, due process of law need to be followed including dicta in M. Nagraj (supra) clarified in Jarnail Singh (supra).

8. The impugned Office Memorandum dtd.03.08.2016 is interfered to the extent as indicated herein above."

It would be pertinent to mention herein that by issuing the Office

Memrandum dated 12.03.2002 the State had earlier decided to confer the

benefit of promotion to the SC/ST community Government servants by virtue of

rules of reservation/roster along with consequential seniority with effect from

17.06.1995. Subsequently, by issuing the Office Memorandum dated 03.08.2016,

more particularly in paragraph (iv), the Government of Assam had provided as Page No.# 8/10

follows :-

"iv) If an occasion arises during the promotion process, in which stipulated percentage in respect of reserved category is met, but in the gradation list/seniority list there are candidates of reserved category who on merit is entitled to the promotion, his/her case shall be considered for promotion on merit if such candidate has not gained the seniority by way of any accelerated promotion earlier."

The writ petitioners in both the abovementioned writ petitions decided by

the order dated 06.06.2022 belong to the reserved category and were basically

aggrieved by Clause-(IV) of the Notification dated 03.08.2016 insofar as the

same seeks to deny consequential seniority by way of accelerated promotion

granted in the circumstances noted in the Office Memorandum dated

03.08.2016. It is in that context that the petitioner's counsel submits that despite

the judgment and order dated 06.06.2022, the Government of Assam by issuing

the impugned OM dated 18.01.2023 has once again reiterated the same

condition and therefore, the OM dated 18.01.2023 is liable to be interfered with

by this Court.

A plain reading of the impugned OM dated 18.01.2023 goes to show that

the same has been issued by taking note of the observations made by the

learned Single Judge in paragraph 7.(IV) of the judgment dated 06.06.2022

which has been quoted herein above. The learned Single Judge has neither

made any observation nor issued any direction to the effect that the

candidates belonging to the reserved category would continue to get

promotion dehors the power of the State to review such matters periodically.

Rather, the language expressed in paragraph 7.(IV) indicates to the contrary.

Page No.# 9/10

Mr. Mazumdar, learned Additional Advocate General, Assam submits that the

impugned OM dated 18.01.2023 has been issued in exercise of liberty and/or

discretion conferred upon the Government by the judgment and order dated

06.06.2022 passed by the learned Single Judge which has the effect of

modifying the OM dated 12.03.2002 and therefore, unless the judgment dated

06.06.2022 is modified by a superior court, the impugned Office Memorandum

cannot be assailed. On a careful reading of the impugned notification, I find

force in the said submission of Mr. Mazumdar.

As noticed above, the core issue raised in this writ petition appears to be

a pure and simple dispute of inter-se seniority between the petitioner and the

other departmental candidates based on the claim of seniority on accelerated

promotioin. If that be so, such a dispute has to be decided in the light of the

relevant Rules/Notifications and the statutory provisions applicable in the case.

However, such a recourse would not be ppermissible in this case since the

affected parties i.e. the General category candidates, who are placed above

the petitioner in the inter-se seniority list, have not been impleaded as parties to

this proceeding.

Be that as it may, the pleadings contained in the writ petition raises a

number of other issues which would have a relevant bearing on the rights and

interest of petitioner as well as the similarly situated persons and therefore, this

Court is of the opinion that such issues deserves to be suitably adjudicated by

interpreting the relevant rules and notifications. As such, the matter would call

for further examination.

Issue notice of motion returnable in four weeks.

Since Mr. D. Nath, learned Senior Govt. Advocate, Assam has entered Page No.# 10/10

appearance and accepted notice on behalf of respondent Nos.1 to 4 and Mr.

R. Dhar, learned Standing Counsel, Water Resources Department, Assam has

accepted notice on behalf of respondent Nos.5 and 6, no formal notice is

required to be sent in this case. However, extra copies of the writ petition,

requisite in numbers, be furnished to the learned departmental counsel within

three days from today so as to enable them to obtain instruction and file

affidavit.

The petitioner is also granted liberty to implead the private respondents

by filing appropriate application, if so advised.

Heard on the prayer of interim relief.

Having regard to the facts and circumstances of the case, I am not

inclined to pass any interim order at this stage, save and except providing that

any decision taken by the respondents for promoting the departmental

candidates in the Water Resources Department by giving effect to the

impugned OM dated 18.01.2023 would be subject to further orders that may be

passed in this case.

JUDGE

Comparing Assistant