Gauhati High Court
Radheswar Langthasa vs The State Of Assam Rep By The Chief ... on 4 June, 2024
Author: Soumitra Saikia
Bench: Soumitra Saikia
GAHC010015392023
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
PRINCIPAL SEAT
W.P(C) NO. 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
1. THE STATE OF ASSAM 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
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
W.P(C) No. 363/2023 & Ors Page 1 of 103
W.P(C) NO. 665/2023
RADHESWAR LANGTHASA
SON OF SRI B LANGTHASA
PRESENTLY WORKING IN THE POST OF - SUPERINTENDING ENGINEER
WATER RESOURCES DEPARTMENT, SILCHAR , RESIDENT OF - MASCOT
RESIDENCY, JATIA, KAHILIPARA ROAD, N K HOTEL, P RABHA PATH
DISPUR, GUWAHATI-781006
VERSUS
1. THE STATE OF ASSAM
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF
ASSAM, DISPUR, GUWAHATI-781006 (ASSAM)
2:THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF ASSAM
PERSONNEL (B) DEPARTMENT, SECRETARIAT, DISPUR, GUWAHATI -
781006 (ASSAM)
3:THE ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT OF ASSAM,
DEPARTMENT FOR THE WELFARE OF PLAIN TRIBES AND BACKWARD
CLASSES (WPT AND BC), DISPUR, GUWAHATI - 781006 (ASSAM).
4:THE SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPARTMENT SECRETARIAT, DISPUR, GUWAHATI-
781006
5:THE ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT OF ASSAM,
WATER RESOURCES DEPARTMENT, DISPUR, GUWAHATI-781006 (ASSAM)
6:SECRETARY TO THE GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT, DISPUR
GUWAHATI-781006 (ASSAM)
7:THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT, GOVT. OF ASSAM, CHANDMARI
GUWHATI -781003
8:THE CHAIRMAN AND MEMBERS OF THE DPC COMMITTEE MEETING
HELD ON 06.2.2023 HELD FOR PROMOTING INCUMBENTS FROM THE
RANK OF SUPERINTENDING ENGINEER TO THE RANK OF ADDITIONAL
CHIEF ENGINEER
9:THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT, CHANDMARI, GUWAHATI-781003
10:PRABIN BHUYAN THROUGH THE O/O THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT, CHANDMARI, GUWAHATI-781003
11:SMTI MANDIRA SARMAH THROUGH THE O/O THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT, CHANDMARI, GUWAHATI-781003
12:BHASKAR JYOTI SARMAH THROUGH THE O/O THE CHIEF ENGINEER,
WATER RESOURCES DEPARTMENT, CHANDMARI. GUWAHATI-781003
13:RAJIB KUMAR GOSWAMI THROUGH THE O/O THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT, CHANDMARI, GUWAHATI-781003
14:NAGENDRA KARMAKAR THROUGH THE O/O THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT, CHANDMARI, GUWAHATI-781003
W.P(C) No. 363/2023 & Ors Page 2 of 103
15:NAYAN KUMAR SAIKIA THROUGH THE O/O THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT, CHANDMARI, GUWAHATI-781003
16:SAMIRAN DEKA THROUGH THE O/O THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT, CHANDMARI, GUWAHATI-781003
17:SUBRATA NATH THROUGH THE O/O THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT, CHANDMARI, GUWAHATI-781003
18:ABDUL MUNIM MAZUMDAR THROUGH THE O/O THE CHIEF ENGINEER,
WATER RESOURCES DEPARTMENT, CHANDMARI
GUWAHATI-781003
19:DEBA PRASAD BORA, O/O THE CHIEF ENGINEER, WATER RESOURCES
DEPARTMENT, CHANDMARI, GUWAHATI-781003
20:JAGADIPAN DEY, O/O THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT, CHANDMARI, GUWAHATI-781003
21:BIPUL BHATTACHARYYA, O/O THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT, CHANDMARI
GUWAHATI-781003
22:BHASKAR JYOTI DAS, O/O THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT, CHANDMARI, GUWAHATI-781003
23:PULAK CHOUDHURY, O/O THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT, CHANDMARI, GUWAHATI-781003
24:PRATUL PATOWARY, O/O THE CHIEF ENGINEER, WATER RESOURCES
DEPARTMENT, CHANDMARI, GUWAHATI-781003
W.P(C) NO. 1819/2023
SUBRATA KUMAR DAS
S/O SRI SAMIRAN CHANDRA DAS
ASSISTANT EXECUTIVE ENGINEER
DHEMAJI W.R. SUB-DIVISION, DHEMAJI
ASSAM, R/O SUBACHANI ROAD, NEAR BANK COLONY
P.O. AND DIST-TINSUKIA, PIN-786125, ASSAM
VERSUS
1. THE STATE OF ASSAM
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF
ASSAM, DISPUR, GUWAHATI-781006 (ASSAM)
2:THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF ASSAM
PERSONNEL (B) DEPARTMENT
SECRETARIAT
DISPUR
GUWAHATI-781006 (ASSAM)
3:THE ADDL CHIEF SECY TO THE GOVT OF ASSAM
DEPTT OF WELFARE OF PLAIN TRIBES AND BACKWARD CLASSES
(WPT AND BC)
DISPUR
W.P(C) No. 363/2023 & Ors Page 3 of 103
GUWAHATI-781006 (ASSAM)
4:THE SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPARTMENT
SECRETARIAT
DISPUR
GUWAHATI-781006
5:THE SECRETARY TO THE GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
DISPUR
GUWAHATI-781006 (ASSAM)
6:THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVERNMENT
OF ASSAM
WATER RESOURCES DEPARTMENT
DISPUR
GUWAHATI-781006 (ASSAM)
7:THE DEPUTY SECRETARY TO THE GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
DISPUR
GUWAHATI-781006 (ASSAM)
8:NIKUNJA KUMAR SARMA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
9:RAJESH BARUAH (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
10:PRANJIT KUMAR NATH (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
11:PRATIM GOGOI (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
12:PRANJIT BORAH (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
13:DAYANANDA BAISHNAB (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
14:KHUMAN KALITA (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
15:DINESH BURAGOHAIN (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
W.P(C) No. 363/2023 & Ors Page 4 of 103
WATER RESOURCES DEPARTMENT
16:PRANAB JYOTI CHETIA (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
17:TILOK CH GOGOI (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
18:MD. IFTIKAR HUSSAIN
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
19:MIRJUMLA AHMED
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
20:SHAMIM AKHTAR LASKAR
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
21:NAYANJYOTI GOSWAMI
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
22:SHAHEEDUZ ZAMAN
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
23:SANTANU KUMAR SARMA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
24:KAMAL SARMA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
25:RAMESH CHANDRA KALITA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
26:SYED SAJID AHMED
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
27:CHANDAN KUMAR NATH (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
28:HIMANGSHU DEKA (OBC)
W.P(C) No. 363/2023 & Ors Page 5 of 103
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
29:JIBAN BEZ BARUAH
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
30:SURAJIT BHARALI (MOBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
31:DIGANTA SAIKA (MOBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
32:RAHMAT ALI AHMED
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
33:KAMALA DUTTA (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
34:MUKUL BORA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
35:SANJOY BURAGOHAIN (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
36:MONOJ BHATTACHARYAA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
37:BHARAT BHUSAN SARMA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
38:BABUL RAJBONGSHI (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
39:JAYANTA KUMAR BORPUJARI
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
40:BAHARUL ISLAM LASKAR
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
W.P(C) No. 363/2023 & Ors Page 6 of 103
WATER RESOURCES DEPARTMENT
41:PURNENDU CHANDA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
42:MD. ARPHANUR RAHMAN
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
43:KHANINDRA KALITA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
44:JAHUR UDDIN AHMED (MOBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
45:BAHARUL ISLAM CHOUDHURY
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
46:PARBIN KUMAR SAIKIA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
47:HARISH CH. BORUAH (MOBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
48:ABANEE GOGOI (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
49:GANESH KALITA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
50:ABHOY KUMAR DEKA (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
51:UTPAL HAZARIKA (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
52:SANTANU KUMAR BORAH
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
53:MD. ASAD HUSSAIN
W.P(C) No. 363/2023 & Ors Page 7 of 103
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
54:MD. NURUL ISLAM (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
W.P(C) NO. 828/2023
DIPA DAS
D/O- SRI PRABHAT CH. DAS
R/O- AMBIKAGIRI NAGAR
1ST BYE LANE
HOUSE NO.1
GUWAHATI- 781024
ASSAM
VERSUS
THE STATE OF ASSAM AND 22 ORS.
REP. BY THE CHIEF SECRETARY TOTHE GOVT. OF ASSAM
DISPUR
GHY-06 (ASSAM)
2:THE PRINCIPAL SECRETARY
TO THE GOVT. OF ASSAM PERSONNEL (B) DEPTT.
SECRETARIAT
DISPUR
GHY-06 (ASSAM)
3:TH ADDL. CHIEF SECRETARY
TO THE GOVT. OF ASSAM DEPTT. FOR THE WELFARE OF PLAIN TRIBES
AND BACKWARD CLASSES (WPT AND BC)
DISPUR
GHY-06 (ASSAM)
4:THE SECRETARY
GOVT. OF ASSAM PERSONNEL (A) DEPTT.
SECRETARIAT
DISPUR
GHY-06
5:PRANAB KUMAR SHARMA
PRESENTLY POSTED AS ADDL. SECRETARY
WOMEN AND CHILD DEVELOPMENT DEPTT.
SECRETARIAT
DISPUR- 781006
ASSAM
6:MONDIPA SHARMA BORKATAKY
PRESENTLY POSTED AS ADDL. SECRETARY
W.P(C) No. 363/2023 & Ors Page 8 of 103
CULTURAL AFFAIRS DEPTT. AND MD
ASSAM STATE FILM FINANCE AND DEVELOPMENT CORPORATION
SECRETARIAT
DISPUR- 781006
ASSAM
7:GITIMONI PHUKAN
PRESENTLY POSTED AS DY. COMMISSIONER
DC COURT COMPLEX
NALBARI MAIN ROAD
NALBARI- 781335
ASSAM
8:FARIDA SAMSUL
PRESENTLY POSTED AS DIRECTOR
CHAR AREAS DEV AND DIRECTOR
MINORITIES DEVELOPMENT BOARD
SECRETARIAT
DISPUR- 781006
ASSAM
9:JURI GOGOI
PRESENTLY POSTED AS ADDL. SECRETARY
PENSION AND PUBLIC GRIEVANCE DEPTT.
SECRETARIAT
DISPUR- 781006
ASSAM
10:TEJ PRASAD BHUSAL
PRESENTLY POSTED AS ADDL. SECRETARY
AGRICULTURE
SECRETARIAT
DISPUR- 781006
ASSAM
11:MANAS NATH
PRESENTLY POSTED AS ADDL. SECRETARY
MEDICAL EDUCATION AND RESEARCH
SECRETARIAT
DISPUR- 781006
ASSAM
12:ASHIM KUMAR BHATTACHARYA
PRESENTLY POSTED AS ADDL. SECRETARY
HOME AND POLITICAL DEPTT.
SECRETARIAT
DISPUR- 781006
ASSAM
13:DEBESWAR BORA
PRESENTLY POSTED AS COMMISSIONER FOR PERSON WITH
DISABILITIES
SECRETARIAT
DISPUR- 781006
ASSAM
14:PALLABI PHUKAN
PRESENTLY POSTED AS DY. COMMISSIONER
W.P(C) No. 363/2023 & Ors Page 9 of 103
OFFICE OF THE DY. COMMISSIONER RAM NAGAR
DHEMAJI- 787057
ASSAM
15:MAYURI CHETIA
PRESENTLY POSTED AS ADDL. SECRETARY
FINANCE DEPTT.
SECRETARIAT
DISPUR- 781006
ASSAM
16:PALASH RANJAN GHARPHALIA
PRESENTLY POSTED AS ADDL. SECRETARY
PERSONNEL
AR AND TRAINING DEPTT.
SECRETARIAT
DISPUR- 781006
ASSAM
17:SANTANA CHETIA
PRESENTLY POSTED AS ADDL. SECRETARY
PARLIAMENTARY AND SECONDARY EDUCATION DEPTT.
SECRETARIAT
DISPUR- 781006
ASSAM
18:DIPSHIKHA DEY
PRESENTLY POSTED AS ADDL. SECRETARY
AGRICULTURE DEPTT.
SECRETARIAT
DISPUR- 781006
ASSAM
19:PAUL BARUA
PRESENTLY POSTED AS DY. COMMISSIONER
D C OFFICE
COURT ROAD
SONARI
ASSAM- 785690
20:PRAJNYA SAHARIA
PRESENTLY POSTED AS ADDL. SECRETARY
ELEMENTARY EDUCATION DEPTT.
SECRETARIAT
DISPUR- 781006
ASSAM
21:MANABENDRA MEDHI
PRESENTLY POSTED AS ADDL. SECRETARY
SOCIAL JUSTICE AND EMPOWERMENT DEPTT.
SECRETARIAT
DISPUR- 781006
ASSAM
22:MADHU SUDAN NATH
PRESENTLY POSTED AS ADDL. SECRETARY
HIGHER EDUCATION DEPTT.
SECRETARIAT
W.P(C) No. 363/2023 & Ors Page 10 of 103
DISPUR- 781006
ASSAM
23:BISHNU KAMAL BORAH
PRESENTLY POSTED AS ADDL. SECRETARY AND DIRECTOR
INFORMATION AND PUBLIC RELATIONS DEPTT.
SECRETARIAT
DISPUR- 781006
ASSAM
W.P(C) NO. 1165/2023
PRANAB KUMAR RABHA
S/O- LATE PABITRA KUMAR RABHA
EXECUTIVE ENGINEER
PWD
DISPUR TERRITORIAL ROAD DIVISION
GUWAHATI-781021
R/O- NABURUN PATH
JATIA
DISPUR
PIN- 781006
ASSAM
VERSUS
THE STATE OF ASSAM AND 6 ORS
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI-781006
ASSAM
2:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPARTMENT
SECRETARIAT
DISPUR
GUWAHATI-781006
ASSAM
3:THE ADDITIONAL CHIEF SECRETARY TO THE GOVT. OF ASSAM
DEPARTMENT FOR THE WELFARE OF PLAIN TRIBES AND BACKWARD
CLASSES (WPT AND BC)
DISPUR
GUWAHATI-781006
ASSAM
4:THE SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPARTMENT
SECRETARIAT
DISPUR
GUWAHATI-781006.
W.P(C) No. 363/2023 & Ors Page 11 of 103
5:THE SECRETARY TO THE GOVT. OF ASSAM
PUBLIC ROADS DEPARTMENT
DISPUR
GUWAHATI-781006
ASSAM
6:THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVT. OF
ASSAM
PUBLIC WORKS DEPARTMENT
DISPUR
GUWAHATI-781006
ASSAM
7:THE DEPUTY SECRETARY TO THE GOVT. OF ASSAM
PUBLIC WORKS ROADS DEPARTMENT
CONFIDENTIAL CELL
DISPUR
GUWAHATI-781006
ASSAM
W.P(C) NO. 3094/2021
BIKASH CH PANGGING
S/O NOMAL CH PANGGING
EXECUTIVE ENGINEER
PWD
DIBRUGARH LAHOWAL MORAN AND TINGKHONG TERRITORIAL ROAD
DIVISION
DIBRUGARH
RESIDENT OF CHOWKIDINGHEE
DIBRUGARH
786003
ASSAM
VERSUS
THE STATE OF ASSAM AND 21 ORS
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI 781006
ASSAM
2:THE COMMISSIONER AND SPECIAL SECRETRAY TO THE GOVT. OF
ASSAM
PWD(R)M DISPUR
GUWAHATI 06
3:THE SECRETARY
PWD
GOVT. OF ASSAM
DISPUR GUWAHATI 06
W.P(C) No. 363/2023 & Ors Page 12 of 103
4:THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVT. OF
ASSAM
PUBLIC WORKS (BUILDING AND NH) DEPT. DISPUR
GUWAHATI 06
5:THE DEPUTY SECRETARY TO THE GOVT. OF ASSAM
PUBLIC WORKS ROAD DEPARTMENT
DISPUR
GUWAHATI 781006
6:THE ADDITIONAL CHIEF SECRETARY TO THE GOVT. OF ASSAM
DEPARTMENT OF WELFARE OF PLAIN TRIBES AND BACKWARD CLASSES
(WPT AND BC)
DISPUR
GUWAHATI 781006
7:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPARTMENT
DISPUR
GUWAHATI 781006
8:THE CHAIRPERSON AND MEMBERS
OF THE DPC MEETING HELD ON 29.05.2021 FOR PROMOTION TO THE
RANK OF SUPT.ENGINEER
UNDER THE PWD
GOVT. OF ASSAM TO BE SERVED UPON THE SECRETARY TO THE GOVT.
OF ASSAM
PWD (ROADS
BUILDING AND NH)
DISPUR
GUWAHATI 781006
9:SRI JEWEL TIMUNG (STH)
DIPHU CIRCLE I
PWDR DIPHU
10:SRI AJIT SINAR (ST(H)
HAMREN CIRCLE
HAMREN
11:SRI DILIP KUMAR SARMA - I
DIBRUGARH ROAD CIRLCE
PWRD
12:SRI NAGENDRA KALITA
SILCHAR BUILDING CIRCLE
PWD (B AND NH)
13:SRI DHANESH CH. DAS
TINSUKIA ROAD CIRCLE
PWRD
TINSUKIA
14:SRI INDRAJIT GOGOI
DIBRUGARH NH CIRCLE
PWD (B AND NH)
DIBRUGARH
W.P(C) No. 363/2023 & Ors Page 13 of 103
15:SRI PRANAB TAHBILDER
TEZPUR NH CIRCLE
PWD (B AND NH) TEZPUR
16:SRI RATUL KR. BEZ
GUWAHATI NEC CIRCLE
PWDR GUWAHATI
17:SRI PRAHLAD CH KAKATI
ARIASP CIRCLE
PWRD
GUWAHATI
18:SRI BIPUL DUTTA
JORHAT ROAD CIRCLE
PWRD
19:SRI ATUL CH BAISHYA
BARPETA ROAD CIRLCE
PWRD BARPETA
20:SRI SANTOSH TAMULY
HAFLONG NEC CIRCLE
HAFLONG
21:SRI BHUDEB SARMA
O/O THE CHIEF ENGINEER (EAP) PWRD
22:SRI ARUN KR. PHUKAN
O/O THE CHIEF ENGINEER
BUILDING
PWD (B AND NH) RES. 9 TO 22 ARE PRIVATE RES. UNDER THE PUBLIC
WORKS ROAD DEPARTMENT AND MAY BE SERVED THROUGH
RESPONDENT NO. 5
BIDUR BORGOYARI
S/O- LT. MANIK CHAND BORGOARI
EXECUTIVE ENGINEER
PWD NAGAON
BARHAMPUR AND RUPOHIHUT DIVISION
NAGAON
R/O- BIPUNIDHI NIWAS
BORBARI
ALOKPUR PATH
VIP ROAD
GUWAHATI- 781036
(ASSAM).
VERSUS
THE STATE OF ASSAM AND 6 ORS
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI- 781006 (ASSAM).
2:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPARTMENT
SECRETARIAT
DISPUR
GUWAHATI- 781006 (ASSAM).
3:THE ADDL. CHIEF SECRETARY TO THE GOVT. OF ASSAM
DEPARTMENT FOR THE WELFARE OF PLAIN TRIBES AND B.C
(WPT AND BC)
DISPUR
GUWAHATI- 781006 (ASSAM).
4:THE SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPARTMENT
SECRETARIAT
DISPUR
GUWAHATI- 781006
(ASSAM).
5:THE SECRETARY TO THE GOVT. OF ASSAM
PUBLIC WORKS ROADS DEPARTMENT
DISPUR
GUWAHATI- 781006 (ASSAM).
6:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
PUBLIC WORKS ROADS DEPARTMENT
DISPUR
GUWAHATI- 781006 (ASSAM).
7:THE DY. SECRETARY TO THE GOVT. OF ASSAM
PUBLIC WORKS ROADS DEPARTMENT
CONFIDENTIAL CELL
DISPUR
GUWAHATI- 781006 (ASSAM).
BIDUR BORGAYAR
S/O LATE MANIK CH. BORGAYARI
EXECUTIVE ENGINEER
PWD
HOJAI DISTRICT TERRITORIAL ROAD DIVISION
HOJAI
RESIDENT OF ALOKPUR PATH
BORBARI
VIP ROAD
DISPUR
781036. ASSAM
VERSUS
THE STATE OF ASSAM AND 22 ORS
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI 781006
ASSAM
2:THE COMMISSIONER AND SPECIAL SECRETRAY TO THE GOVT. OF
ASSAM
PWD(R)M DISPUR
GUWAHATI 06
3:THE SECRETARY
PWD
GOVT. OF ASSAM
DISPUR GUWAHATI 06
4:THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVT. OF
ASSAM
PUBLIC WORKS (BUILDING AND NH) DEPT. DISPUR
GUWAHATI 06
5:THE DEPUTY SECRETARY TO THE GOVT. OF ASSAM
PUBLIC WORKS ROAD DEPARTMENT
DISPUR
GUWAHATI 781006
6:THE ADDITIONAL CHIEF SECRETARY TO THE GOVT. OF ASSAM
DEPARTMENT OF WELFARE OF PLAIN TRIBES AND BACKWARD CLASSES
(WPT AND BC)
DISPUR
GUWAHATI 781006
7:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPARTMENT
DISPUR
GUWAHATI 781006
8:THE CHAIRPERSON AND MEMBERS
OF THE DPC MEETING HELD ON 29.05.2021 FOR PROMOTION TO THE
RANK OF SUPT.ENGINEER
UNDER THE PWD
GOVT. OF ASSAM TO BE SERVED UPON THE SECRETARY TO THE GOVT.
OF ASSAM
PWD (ROADS
BUILDING AND NH)
DISPUR
GUWAHATI 781006
9:SRI JEWEL TIMUNG (STH)
DIPHU CIRCLE I
PWDR DIPHU
10:SRI AJIT SINAR (ST(H)
HAMREN CIRCLE
HAMREN
11:SRI DILIP KUMAR SARMA - I
DIBRUGARH ROAD CIRLCE
PWRD
12:SRI NAGENDRA KALITA
SILCHAR BUILDING CIRCLE
PWD (B AND NH)
13:SRI DHANESH CH. DAS
TINSUKIA ROAD CIRCLE
PWRD
TINSUKIA
14:SRI INDRAJIT GOGOI
DIBRUGARH NH CIRCLE
PWD (B AND NH)
DIBRUGARH
15:SRI PRANAB TAHBILDER
TEZPUR NH CIRCLE
PWD (B AND NH) TEZPUR
16:SRI RATUL KR. BEZ
GUWAHATI NEC CIRCLE
PWDR GUWAHATI
17:SRI PRAHLAD CH KAKATI
ARIASP CIRCLE
PWRD
GUWAHATI
18:SRI BIPUL DUTTA
JORHAT ROAD CIRCLE
PWRD
19:SRI ATUL CH BAISHYA
BARPETA ROAD CIRLCE
PWRD BARPETA
20:SRI SANTOSH TAMULY
HAFLONG NEC CIRCLE
HAFLONG
21:SRI BHUDEB SARMA
O/O THE CHIEF ENGINEER (EAP) PWRD
22:SRI ARUN KR. PHUKAN
O/O THE CHIEF ENGINEER
BUILDING
PWD (B AND NH) RES. 9 TO 22 ARE PRIVATE RES. UNDER THE PUBLIC
WORKS ROAD DEPARTMENT AND MAY BE SERVED THROUGH
TABURAM PEGU AND 2 ORS.
S/O LT. KHAGESWAR PEGU
ADDITIONAL SUPERINTENDENT OF POLICE
I/C 6 ABNN KATHAL
SILCHAR
DIST. CACHAR
PIN-788005
ASSAM
2: AMITABH BASUMATARAY
APS
S/O LT. AMRITLAL BASUMATARY
R/O GOSSAIGAON
DIST. KOKRAJHAR
PIN-783360
BTAD
ASSAM
3: PANKAJ KUMAR KAKATI
APS
S/O SATYA NATH KAKATI
R/O TOWN RAHA
DIST. NAGAON
ASSAM-782103
VERSUS
THE STATE OF ASSAM AND 8 ORS.
REP .BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI-781006
2:THE ADDITIONAL CHIEF SECRETARY
TO THE GOVT. OF ASSAM
HOME AND POLITICAL DEPTT. GOVT. OF ASSAM
DISPUR
GUWAHATI-781006
ASSAM
3:THE PRINCIPAL SECRETARY
TO THE GOVT. OF ASSAM
HOME AND POLITICAL DEPTT. DISPUR
GUWAHATI-781006
ASSAM
4:THE SECRETARY
TO THE GOVT. OF ASSAM
HOME AND POLITICAL DEPTT. DISPUR
GUWAHATI-781006
ASSAM
5:THE DIRECTOR GENERAL OF POLICE
ASSAM
ASSAM POLICE HEAD QUARTERS
ULUBARI
GUWAHATI-781001
ASSAM
6:THE ADDITIONAL DIRECTOR GENERAL OF POLICE ADMINISTRATION
ASSAM POLICE HEAD QUARTERS
ULUBARI
GUWAHATI-781001
ASSAM
7:THE ADDITIONAL CHIEF SECRETARY
TO THE GOVT. OF ASSAM
DEPTT. FOR WELFARE OF PLAIN TRIBES AND BACKWARD CLASSES (WPT
AND BC)
DISPUR
GUWAHATI-781006
ASSAM
8:THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPTT. DISPUR
GUWAHATI-781006
9:THE JUDICIAL REMEMBRANCER AND SECRETARY
TO THE GOVT. OF ASSAM
JUDICIAL DEPTT. JUDICIAL BRANCH
DISPUR
GUWAHATI-781006
PRANAB KUMAR RABHA
SON OF LT. PABITRA KUMAR RABHA
EXECUTIVE ENGINEER
PWD
DISPUR TERRITORIAL ROAD DIVISION
GUWAHATI -781021.
RESIDENT OF NABARUN PATH
JATIA
DISPURPIN- 781006
ASSAM.
VERSUS
THE STATE OF ASSAM AND 32 ORS.
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF
ASSAM
DISPUR
GUWAHATI-781006 (ASSAM).
2:THE COMMISSIONER AND SPECIAL SECRETARY
TO THE GOVERNMENT OF ASSAM
PUBLIC WORK ROADS DEPARTMENT
DISPUR
GUWAHATI - 781006 (ASSAM).
3:THE SECRETARY
PUBLIC WORKS DEPARTMENT
GOVERNMENT OF ASSAM
DISPUR
GUWAHATI-781006.
4:THE COMMISSIONER AND SPECIAL SECRETARY
TO THE GOVERNMENT OF ASSAM
PUBLIC WORKS (BUILDING AND NH) DEPARTMENT
DISPUR
GUWAHATI 6.
5:THE DEPUTY SECRETARY
TO THE GOVERNMENT OF ASSAM
PUBLIC WORKS ROADS DEPARTMENT
DISPUR
GUWAHATI - 781006.
6:THE ADDITIONAL CHIEF SECRETARY
TO THE GOVERNMENT OF ASSAM
DEPARTMENT FOR THE WELFARE OF PLAIN TRIBES AND BACKWARD
CLASSES (WPT AND BC)
DISPUR
GUWAHATI-781006 (ASSAM).
7:THE COMMISSIONER AND SECRETARY
TO THE GOVERNMENT OF ASSAM
PERSONNEL (B) DEPARTMENT
DISPUR
GUWAHATI-781006.
8:THE CHAIRPERSON AND MEMBERS
OF THE DPC MEETING HELD ON 29.5.2021 FOR PROMOTION TO THE
RANK OF SUPERINTENDING ENGINEER UNDER THE PUBLIC WORKS
DEPARTMENT
GOVT. OF ASSAM
TO BE SERVED UPON THE COMMISSIONER AND SPECIAL SECRETARY TO
THE GOVERNMENT OF ASSAM
PUBLIC WORKS (ROADS
BUILDING AND NH) DEPARTMENT
DISPUR
GUWAHATI 781006.
9:SAILADIP DAS
SUPERINTENDING ENGINEER (C)
PWD (BANDNH)
GUWAHATI BUILDING CIRCLE-II
CHANDMARI
GUWAHATI - 781003.
10:ARUN CH GOSWAMI
SUPERINTENDING ENGINEER (C)
PWD (BANDNH)
JORHAT BUILDING CIRCLE
JORHAT 785007.
11:JEWEL TIMUNG (STH)
SUPERINTENDING ENGINEER (C)
PWRD
DIPHU CIRCLE-I
DIPHU
KARBI-ANGLONG 782462.
12:SALEH AHMED CHOUDHURY
SUPERINTENDING ENGINEER (C)
PWD (BANDNH)
GUWAHATI BUILDING CIRCLE-I
PANBAZAR
GUWAHATI - 781001.
13:ROMIZUDDIN AHMED
SUPERINTENDING ENGINEER (C)
HAFLONG (RANDB) CIRCLE
HAFLONG
DIMA HASAO 788819.
14:PRADIP SARMA
DEPUTY SECRETARY (ESTABLISHMENT) PWD (BANDNH)
TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI - 781006.
15:MAHENDRA KUMAR SAIKIA
SUPERINTENDING ENGINEER (C)
PWRD
GOLAGHAT ROAD CIRCLE
C/O - OFFICE OF THE EXECUTIVE ENGINEER
PWD
GOLAGHAT AND KHOMTAI TERRITORIAL ROAD DIVISION
GOLAGHAT - 785621.
16:KISHOR KR. TALUKDAR
SUPERINTENDING ENGINEER (C)
PWD (BANDNH)
NALBARI NH CIRCLE
NALBARI - 781335.
17:BALWANT SINGH
DEPUTY SECRETARY (MATERIALS) PWRD
TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI 781006.
18:DILIP KR. SAIKIA
SUPERINTENDING ENGINEER (C)
PWRD
IBRC
O/O THE CHIEF ENGINEER
PWRD (ROADS)
CHANDMARI
GUWAHATI 781003.
19:AJIT SINAR (STH)
SUPERINTENDING ENGINEER (C)
PWRD
HAMREN CIRCLE
HAMREN
KARBI-ANGLONG 782462.
20:KAJAL BAYAN
SUPERINTENDING ENGINEER (C)
PWRD
PLANNING
O/O THE CHIEF ENGINEER
PWRD (ROADS)
CHANDMARI
GUWAHATI 781003
21:BIJOY BHUSHAN SAIKIA
SUPERINTENDING ENGINEER (C)
PWRD
MANGOLDOI ROAD CIRCLE
MANGOLDOI 784125
22:MRIDUL TALUKDAR
SUPERINTENDING ENGINEER (C)
PWRD
MANGOLDOI ROAD CIRCLE
MANGOLDOI 784125.
23:DEBA KUMAR LAHKAR
DEPUTY SECRETARY (BUDGET) PWD (BANDNH)
TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI - 781006.
24:DILIP KUMAR SARMA- 1
SUPERINTENDING ENGINEER (C)
PWRD
DIBRUGARH ROAD CIRCLE
DIBRUGARH 786001.
25:NAGENDRA KALITA
SUPERINTENDING ENGINEER (C)
PWD (BANDNH)
SILCHAR BUILDING CIRCLE
SILCHAR 788001
26:DHANESH CH. DAS
SUPERINTENDING ENGINEER (C)
PWRD
TINSUKIA ROAD CIRCLE
C/O OFFICE OF THE EXECUTIVE ENGINEER
PWRD
TINSUKIA
DOOMDOOMA AND SADIYA TERRITORIAL ROAD DIVISION
TINSUKIA - 786192.
27:INDRAJIT GOGOI
SUPERINTENDING ENGINEER (C)
PWD (BANDNH)
DIBRUGARH NH CIRCLE
DIBRUGARH 786001
28:PRANAB TAHBILDER
SUPERINTENDING ENGINEER (C)
PWD (BANDNH)
TEZPUR NH CIRCLE
TEZPUR - 784001
29:RATUL KR. BEZ
SUPERINTENDING ENGINEER (C)
PWRD (ROADS)
GUWAHATI NEC CIRCLE
PANBAZAR
GUWAHATI 781001.
30:BIPUL DUTTA
JORHAT ROAD CIRCLE
PWRD. SUPERINTENDING ENGINEER (C)
PWRD
JORHAT ROAD CIRCLE
JORHAT - 785007
31:ATUL CH. BAISHYA
SUPERINTENDING ENGINEER (C)
PWRD
BARPETA ROAD CIRCLE
C/O OFFICE OF THE BARPETA
BHAGHBAR AND CHENGA TERRITORIAL ROAD DIVISION
BARPETA - 781310
32:SANTOSH TAMULY
SUPERINTENDING ENGINEER (C)
PWRD
HAFLONG NEC CIRCLE
HAFLONG - 788819.
33:BHUDEB SARMA
SUPERINTENDING ENGINEER (C)
PWRD
GUWAHATI RIDF-II CIRCLE
O/O THE CHIEF ENGINEER
PWRD (ROADS)
CHANDMARI
GUWAHATI 781003.
BIKASH C. PANGGING
S/O NOMAL CH. PANGGING EXECUTIVE ENGINEER PWD DIBRUGARH
LAHOWAL MORAN AND TINGKHONG TERRITORIAL ROAD DIVISION
DIBRUGARH R/O CHOWKIDINGHEE DIBRUGARH PIN 786003 ASSAM
VERSUS
THE STATE OF ASSAM AND 6 ORS.
REP. BY THECHIEF SECRETARY TO THE GOVT. OF ASSAM DISPUR
GUWAHATI 6 ASSAM
2:THE PRINCIPAL SECRETARY
TO THE GOVT. OF ASSAM PERSONNEL (B) DEPTT. SECRETARIAT DISPUR
GUWAHAI 6 ASSAM
3:THE ADDITIONAL CHIEF SECRETARY
TO THE GOVT. OF ASSAM DEPTT. FOR THE WELFARE OF PLAIN TRIBES
AND BACKWARD CLASSES (WPT AND BC) DISPUR GUWAHATI 781006
ASSAM
4:THE SECRETARY
TO THE GOVT. OF ASSAM PERSONNEL (B) DEPTT. SECRETARIAT DISPUR
GUWAHATI 6
5:THE SECRETARY
TO THE GOVT OF ASSAM PUBLIC WORKS ROAD DEPTT. DISPUR
GUWAHATI 6 ASSAM
6:THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
PUBLIC WORKS DEPTT. DISPUR GUWAHATI 6 ASSAM
7:THE DEPUTY SECRETARY
TO THE GOVT. OF ASSAM
PUBLIC WORKS DEPTT. DISPUR GUWAHATI 6 ASSAM
PRANAB KUMAR RABHA
S/O LATE PABITRA KUMAR RABHA
EXECUTIVE ENGINEER
PWD
DISPUR TERRITORIAL ROAD DIVISION
GUWAHATI 781021
RESIDENT OF NABARUN PATH
JATIA
DISPUR
ASSAM 781006
VERSUS
THE STATE OF ASSAM AND 35 ORS
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI 781006
ASSAM
2:THE COMMISSIONER AND SPECIAL SECRETRAY TO THE GOVT. OF
ASSAM
PWD(R)M DISPUR
GUWAHATI 06
3:THE SECRETARY
PWD
GOVT. OF ASSAM
DISPUR GUWAHATI 06
4:THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVT. OF
ASSAM
PUBLIC WORKS (BUILDING AND NH) DEPT. DISPUR
GUWAHATI 06
5:THE DEPUTY SECRETARY TO THE GOVT. OF ASSAM
PUBLIC WORKS ROAD DEPARTMENT
DISPUR
GUWAHATI 781006
6:THE ADDITIONAL CHIEF SECRETARY TO THE GOVT. OF ASSAM
DEPARTMENT OF WELFARE OF PLAIN TRIBES AND BACKWARD CLASSES
(WPT AND BC)
DISPUR
GUWAHATI 781006
7:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPARTMENT
DISPUR
GUWAHATI 781006
8:THE CHAIRPERSON AND MEMBERS
OF THE DPC MEETING HELD ON 29.05.2021 FOR PROMOTION TO THE
RANK OF SUPT.ENGINEER
UNDER THE PWD
GOVT. OF ASSAM TO BE SERVED UPON THE SECRETARY TO THE GOVT.
OF ASSAM
PWD (ROADS
BUILDING AND NH)
DISPUR
GUWAHATI 781006
9:SRI SAILADIP DAS
GUWAHATI BUILDING CIRLCE II
PWD (B AND NH) GUWAHATI
10:SRI ARUN CH GOSWAMI
JORHAT BUILDING CIRCLE
PWD (B AND NH) JORHAT
11:SRI JEWEL TIMUNG (ST(H)
DIPHU CIRCLE I
PWDR DIPHU
12:SRI SALEH AHMED CHOUDHURY
GUWAHATI BUILDING CIRCLE I
PWD PWD (B AND NH)
GUWAHATI
13:SRI ROMIZUDDIN AHMED
HAFLONG R AND B CIRCLE DIMA HASAO
14:SRI PRADIP SARMA
DEPUTY SECRETARY (ESTABLISHMENT)
PWD (B AND NH)
15:SRI NEKIBUR RAHMAN SAIKIA
NEC ROAD CELL
PWRD
16:SRI MAHENDRA KUMAR SAIKIA
GOLAGHAT ROAD CIRCLE
PWDR
GOLAGHAT
17:SRI KISHOR KR. TALUKDAR
NALBARI NH CIRCLE
PWD (B AND NH)
18:SRI BALWANT SINGH
DEPUTY SECRETARY MATERIALS PWRD
19:SRI DILIP KR. SAIKIA
IBRC
O/O THE CHIEF ENGINEER (ROAD) PWDR
20:SRI AJIT SINAR (ST(H)
HAMREN CIRCLE
HAMREN
21:SRI KAJAL BAYAN
O/O THE CHIEF ENGINEER (ROADS) PWRD
22:SRI BIJOY BHUSHAN SAIKIA
MANGALDAI ROAD
CIRCLE
PWRD
23:SRI MRIDUL TALUKDAR
NORMAL O/O THE CHIEF ENGINEER (BUILDING) PWD (B AND NH)
24:SRI DEBA KUMAR LAHKAR
DEPUTY SECRETARY (BUDGET) PWRD
25:SRI DILIP KUMAR SARMA - I
DIBRUGARH ROAD CIRLCE
PWRD
26:SRI NAGENDRA KALITA
SILCHAR BUILDING CIRCLE
PWD (B AND NH)
27:SRI DHANESH CH. DAS
TINSUKIA ROAD CIRCLE
PWRD
TINSUKIA
28:SRI INDRAJIT GOGOI
DIBRUGARH NH CIRCLE
PWD (B AND NH)
DIBRUGARH
29:SRI PRANAB TAHBILDER
TEZPUR NH CIRCLE
PWD (B AND NH) TEZPUR
30:SRI RATUL KR. BEZ
GUWAHATI NEC CIRCLE
PWDR GUWAHATI
31:SRI PRAHLAD CH KAKATI
ARIASP CIRCLE
PWRD
GUWAHATI
32:SRI BIPUL DUTTA
JORHAT ROAD CIRCLE
PWRD
33:SRI ATUL CH BAISHYA
BARPETA ROAD CIRLCE
PWRD BARPETA
34:SRI SANTOSH TAMULY
HAFLONG NEC CIRCLE
HAFLONG
35:SRI BHUDEB SARMA
O/O THE CHIEF ENGINEER (EAP) PWRD
36:SRI ARUN KR. PHUKAN
O/O THE CHIEF ENGINEER
BUILDING
PWD (B AND NH)
RES. 9 TO 36 ARE PRIVATE RES. UNDER THE PUBLIC WORKS ROAD
DEPARTMENT AND MAY BE SERVED THROUGH RESPONDENT NO. 5
BHAGAWAN PATAR
S/O- LATE AMAL CH. PATAR
ASSISTANT EXECUTIVE ENGINEER
TEZPUR W.R. SUB-DIVISION TEZPUR
R/O- ANGEMAN ADAGIO
3C
KONAKLATA PATH
SURVEY
GUWAHATI-781006
KAMRUP(M)
ASSAM
VERSUS
THE STATE OF ASSAM AND 27 ORS
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF
ASSAM
DISPUR
GUWAHATI-781006
ASSAM
2:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPARTMENT
SECRETARIAT
DISPUR
GUWAHATI-781006
ASSAM
3:THE ADDITIONAL CHIEF SECRETARY TO THE GOVT. OF ASSAM
DEPARTMENT FOR THE WELFARE OF PLAIN TRIBES AND BACKWARD
CLASSES (WPT AND BC)
DISPUR
GUWAHATI-781006
ASSAM
4:THE SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPARTMENT
SECRETARIAT
DISPUR
GUWAHATI-781006.
5:THE SECRETARY TO THE GOVT. OF ASSAM
WATER RESOURCES DEPARTMENT
DISPUR
GUWAHATI-781006
ASSAM
6:THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVT. OF
ASSAM
WATER RESOURCES DEPARTMENT
DISPUR
GUWAHATI-781006
ASSAM
7:THE DEPUTY SECRETARY TO THE GOVT. OF ASSAM
WATER RESOURCES DEPARTMENT
DISPUR
GUWAHATI-781006
ASSAM
8:JAYANTA KUMAR BORPUJARI
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.
9:BAHARUL ISLAM LASKAR
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.
10:PURNENDU CHANDA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.
11:MD. ARPHANUR RAHMAN
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.
12:KHANINDRA KALITA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.
13:JAHUR UDDIN AHMED
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.
14:BAHARUL ISLAM CHOUDHURY
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.
15:PRABIN KUMAR SAIKIA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.
16:HARISH CH. BARMAN
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.
17:ABANEE GOGOI
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.
18:GANESH KALITA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.
19:ABHOY KUMAR DEKA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.
20:UTPAL HAZARIKA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.
21:SHANTANU KUMAR BORAH
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.
22:MD. ASAD HUSSAIN
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.
23:MD. NURUL ISLAM
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.
24:MD. JURAN ALI AHMED
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.
25:BISWAJIT SINHA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.
26:ANJALI CHOUDHURY
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.
27:RAJEEVANANDA BORGOHAIN
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.
28:JIBAN KANTA CHANDA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.
BIKASH CH. PANGGING
S/O NOMAL CH PANGGING
EXECUTIVE ENGINEER
PWD
DIBRUGARH LAHOWAL MORAN AND TINGKHONG TERRITORIAL ROAD
DIVISION
DIBRUGARH
R/O CHOWKIDINGHEE
DIBRUGARH
PIN-786003
ASSAM
VERSUS
THE STATE OF ASSAM AND 28 ORS.
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF
ASSAM
DISPUR
GUWAHATI-781006 (ASSAM)
2:THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVERNMENT
OF ASSAM
PUBLIC WORKS ROADS DEPARTMENT
DISPUR
GUWAHATI-781006 (ASSAM)
3:THE SECRETARY
PUBLIC WORKS DEPARTMENT
GOVERNMENT OF ASSAM
DISPUR
GUWAHATI-781006
4:THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVT OF
ASSAM
PUBLIC WORKS (BUILDING AND NH) DEPTT.
DISPUR
GUWHAATI-781006
5:THE DEPUTY SECRETARY TO THE GOVT. OF ASSAM
PUBLIC WORKS ROADS DEPTT.
DISPUR
GUWAHATI-781006
6:THE ADDITIONAL CHIEF SECRETARY TO THE GOVT. OF ASSAM
DEPARTMENT FOR THE WELFARE OF PLAIN TRIBES AND BACKWARD
CLASSES (WPT AND BC)
DISPUR
GUWAHATI-781006 (ASSAM)
7:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPTT
DISPUR
GUWHAATI-781006
8:THE CHAIRPERSON AND MEMBERS OF THE DPC MEETING
HELD ON 28.9.2021 FOR PROMOTION TO THE RANK OF
SUPERINTENDING ENGINEER UNDER THE PUBLIC WORKS DEPARTMENT
GOVT. OF ASSAM
TO BE SERVED UPON THE COMMISSIONER AND SPECIAL SECRETARY TO
THE GOVERNMENT OF ASSAM
PUBLIC WORKS (ROADS
BUILDING AND NH) DEPARTMENT
DISPUR
GUWAHATI-781006
9:SANTOSH KUMAR ROY
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
10:WAZID HUSSAIN
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
11:NIRUPAM BORTHAKUR
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
12:SAIFUL ISLAM
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
13:SANJIB KR. BHATTACHARJEE
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
14:BIKASH SINGHA
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
15:DILIP KR DAS
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
16:MISS MADHUMITA DEY
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
17:SMTI MITALI CHOUDHURY
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
18:AKLASUR RAHMAN BORBHUYAN
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
19:PRATIM BARUA
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
20:ANAND PRASAD SARMA
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
21:JOGENDRA DAS
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
22:MD. NURUL ISLAM
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
23:DWIJEN PATGIRI
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
24:RATHINDRA BIJOY CHAKRABORTY
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
25:ANUPAM KHARGHARIA
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
26:KALYAN KR SARMA
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
27:JAGAMOHAN BASUMATARY
S/O LT. RUPENDRA BASUMATARY
EXECUTIVE ENGINEER
SOUTH SALMARA DISTRICT TERRITORIAL ROAD DIVISION
MANKACHAR
DIST- SOUH SALMARA
ASSAM- 783131.
28:BIDUR BORGAYARI
S/O LATE MANIK CHANDRA BORGAYARI
R/O BIPUNIDHI NIWAS
ALOKPUR PATH
BORBARI
VIP ROAD
GHY- 781036.
29:HEMANTA DEWRI BHARALI
S/O LATE BISWAKANTA DEWRI BHARALI
NAVODAY NAGAR PATH
GHY- 781028.
PRAVIR KAKATI
S/O- LATE SIBA CHANDRA KAKATI
R/O- SAGARIKA PATH
P.O- ZOO ROAD
P.S- GITANAGAR
GUWAHATI-24
DIST- KAMRUP (M)
ASSAM
VERSUS
THE STATE OF ASSAM AND ORS.
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF
ASSAM
DISPUR
GUWAHATI-781006
ASSAM
2:THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF ASSAM
PERSONNEL (B) DEPARTMENT
SECRETARIAT DISPUR
GUWAHATI-781006
ASSAM
3:THE ADDL. CHIEF SECRETARY TO THE GOVERNMENT OF ASSAM
DEPARTMENT FOR THE WELFARE OF PLAIN TRIBES AND BACKWARD
CLASSES (WPT AND BC)
DISPUR
GUWAHATI-781006
ASSAM
4:THE SELECTION BOARD
REP BY ITS CHAIRMAN THE CHIEF SECRETARY TO THE GOVERNMENT OF
ASSAM FOR DPC SELECTION AND PROMOTION TO POST OF
COMMISSIONER AND SECRETARY GOVERNMENT OF ASSAM
5:THE SECRETARY
TO THE GOVERNMENT OF ASSAM
PERSONNEL (A) DEPARTMENT
DISPUR
GUWAHATI-781006
6:KAMAL KUMAR BAISHYA
ACS
COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
EXCISE DEPARTMENT
AND SECRETARY
ASSAM HUMAN RIGHTS COMMISSION
DISPUR
GUWAHATI-6.
7:FAROUK ALAM
ACS
COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
SPORTS AND YOUTH WELFARE DEPARTMENT
DISPUR
GUWAHATI-6.
8:DHRUBAJYOTI DAS
ACS
COMMISSIONER AND SECRETARY (ACS CADRE)
TO THE GOVT. OF ASSAM
MEDICAL EDUCATION AND RESEARCH DEPARTMENT
DISPUR
GUWAHATI-6.
9:SRI RANJAN SARMA
AGED ABOUT 58 YEARS
SON OF LATE PRATUL SARMA
RESIDENT OF MATHURA NAGAR
DISPUR
GUWAHATI-781006
-BEFORE-
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
Advocate for the petitioners :Mr. D.K. Das, Mr. H. Betala Advocates
Advocate for the respondents : Mr. D. Mazumder, Sr. Advocate and Addl. A.G
assisted by Mr. R. Dhar, Addl. Sr. Government
Advocate
Mr. K.N. Choudhury, Sr. Counsel assisted by
Mr. N. Gautam, Advocate
Mr. P. Nayak, Standing Counsel, PWD
Mr. I Chowdhury, Sr. Advocate assisted by
Mr. S. Biswakarma, Advocate
Dates of Hearing : 19.12.2023, 09.01.2024, 11.01.2024,
23.01.2024, 01.02.2024, 20.02.2024,
27.02.2024 & 05.03.2024
Date of Judgment & Order: :04.06.2024
JUDGMENT AND ORDER (CAV)
This bunch of writ petitions revolve around the same question
of law with minor variations in individual facts. Accordingly, as
agreed to by the learned counsel for the parties, these writ
petitions were clubbed to be heard and disposed of together.
These matters were heard on 19.12.2023, 09.01.2024,
11.01.2024, 23.01.2024, 01.02.2024, 20.02.2024, 27.02.2024 &
05.03.2024and accordingly, are disposed of by this common
Judgment and Order.
2. In all these writ petitions, the Office Memorandum dated
18.01.2023 issued has been put to challenge. The writ petitioners
along with the various reserved categories namely ST(H) and
ST(P) urged that clauses (iii) & (iv) of the impugned OM dated
18.01.2023 are contrary to law as the same are violative of and
runs counter to the Judgment and Order dated 06.06.2022
passed by a Co-ordinate Bench in Bhagawan Pator Vs. State of
Assam & Ors [W.P.(C) No. 5005/2016] as well as Ivy Gohain
Dasgupta Vs. Bhagawan Pator & Ors. (W.A. No. 46/2023).
3. Mr. D.K. Das, learned counsel for the writ petitioners would
address this Court as a counsel for the writ petitioners that the
questions of law and the issues raised are similar in all these
bunch of writ petitions barring certain factual details. Mr. Das has
submitted that W.P.(C) No. 363/2023 would be the case on which
he would like to base his arguments upon. Accordingly, W.P(C)
No. 363/2023 is taken up as a lead case.
4. Before the detailed arguments are referred to, it is
necessary to state that the dispute between the parties arise as
the writ petitioners claim that their rights which flow out of Article
16 (4A) of the Constitution of India have been denied to them.
Under the said Article, the State is empowered to make any
provisions for reservations in matters of promotion to any class or
classes of posts in the services under the State in favour of the
Scheduled Castes and Scheduled Tribes, which are in the opinion
of the State, not adequately represented in any services under the
State and therefore by way of the amendment, Article 16 (4A)
was brought in to the Constitution power to deal with such
matters was conferred on the State for making adequate
provisions for reservation in promotion with consequential
seniority.
5. The State Legislature had enacted the Assam Scheduled
Castes and Scheduled Tribes (Reservation of Vacancies in Services
and Posts) Act, 1978 (in short 'the Act of 1978') with the purpose
to provide for reservation of vacancies in services and posts for
the members of Scheduled Casts and Scheduled Tribes. Section 5
of the Act of 1978 specifies the percentage for reservation for
members of the ST and SC community. The Judgment of the
Apex Court in Indra Sawhany Vs. Union of India & Ors, reported
in 1992 Supp (3) SCC 217 laid down the law the reservation is
permissible at the stage of initial recruitment and not in the stage
of promotion. Consequent upon the Judgment of the Apex Court
in Indra Sawhany (Supra), the Parliament brought about the
Constitutional Amendment by incorporating Article 16 (4A) which
empowers the State to make any provisions for reservation in
matters of promotion in any class or classes or posts in the
services under the State in favour of Scheduled Castes and
Scheduled Tribes which in the opinion of the State are not
adequately represented the services under the State. The Apex
Court by its judgment rendered in R.K. Sabarwal Vs. State of
Punjab, reported in AIR 1995 SC 1371 held that the reservation is
to be determined on the basis of the number of posts in the cadre
and not on the basis of the vacancies and further those reserved
category candidates who are promoted or appointed on merit
should be adjusted against unreserved posts and not against
posts meant for the reserved category. Consequent to the said
Judgment, an amendment was brought about in the Assam Act of
1978. Section 5-A was inserted by which maintenance of post
based roster register was brought in to give effect to the
reservation of SC and ST communities. Section 5-A(iii) of the Act
of 1978 provides that the roster is to be operated as a
replacement and not as a running account. Further Section 5A(xiii)
provides that the promotions are to be on the post based roster
and the policy of replacement by filling up vacant post for eligible
persons from the respective category by special drive so that the
prescribed percentage of reservation is maintainable. Pursuant to
the Constitutional Amendment of Article 16 (4A), by Office
Memorandum bearing No. ABP.59/96/163 dated 12.03.2002
brought in by the State of Assam, the principle of fixation of
seniority of reserved candidates vis-à-vis General candidates in
promotional posts- in other words, the benefit of consequential
seniority of reserved category candidates over General category
candidates in the promotional posts was notified. The
Constitutional Amendment of Article 16 (4A) came to be assailed
in the Apex Court and by Judgment rendered in M. Nagraj & Ors.
Vs. union of India & Ors, reported in (2006) 8 SCC 212, it was
held that (i) this Amendment does not affect the right of equality
which is a basic structure of the Constitution of India; (ii) The
right of the State to provide for reservations in promotion and
consequential seniority was upheld and also held that the
consequential seniority is a concept purely of service
jurisprudence. The incorporation of consequential seniority would
not violate the mandate of equality; (iii) The Apex Court, however,
held that before providing such reservation in promotion, the
State will need to have quantifiable data to show backwardness,
inadequacy of representations of these classes in service and
balancing the maintenance of efficiency in services as mandated
under Article 335 of the Constitution of India. The unit and
procedure the collection of the quantifiable data was left the
domain of the executive.
6. Pursuant to the Judgment of M. Nagraj (Supra), the State of
Assam constituted a one-man Commission to study the need for
reservation by collecting quantifiable data and render its
recommendation. The one-man Commission submitted its report
which was accepted by the State Government. Based on the
approval, the State Government proscribed a procedure carry out
reservation and promotion by way of issuing the Office
Memorandum bearing No. TAD/BC/68/2011/Pt-I/146 dated
29.12.2014.
7. This Office Memorandum dated 29.12.2014 came to be
challenged in W.P.(C) No. 1560/2015 (Equality Forum Vs. The
State of Assam & Ors.). By Judgment and Order dated 23.12.2015,
the One-Man-Commission was set aside holding that the said
report would be of no legal consequence and would not enable
the State to give effect to the provisions of the Act of 1978. It
was held that reservation in promotion would remain in a dormant
state till the till the exercise of collection of quantifiable data
relating to the three constitutional requirements as mandated in
M Nagaraj (supra) and UP Power Corporation Ltd-Vs- Rajesh
Kumar, reported in (2012) 7 SCC 1 are complied with by the State
while seeking to inform the provisions of Article 16 (4A).
8. The Government of Assam in pursuance to the Judgment
and Order dated 23.12.2015 passed in W.P(C) No. 1560/2015
(Equality Forum Vs. The State of Assam & Ors.) brought out the
Office Memorandum dated 03.08.2016. By the said Office
Memorandum, the Government again laid down the guidelines to
be followed for consideration of promotion in any cadre in any
establishments including those are the reserved categories.
Amongst the various conditions laid down in the Office
Memorandum dated 03.08.2016 under Clause (iv), it was provided
that during promotional process where the stipulated percentage
in respect of any reserved category is met, but in the gradation
list/seniority list, there are candidates of reserved category who
on merit are entitled to the promotion then his/her case would be
considered for promotion on merit if such candidate has not
gained the seniority by way of any accelerated promotion earlier.
9. It is the said clause (iv) in the Office Memorandum dated
03.08.2016 which came to be assailed in W.P.(C) No. 5005/2016
(Bhawagan Pator Vs. State of Assam & Ors) and Anr. vide
Judgment and Order dated 06.06.2022 to be violative of the
Section 5 of the 1978 Act and therefore is liable to be struck down.
While holding that Article 16 (4A) and Article 16 (4B) being
enabling provisions, the State is at liberty to implement its policy
of giving reservations in promotion with consequential seniority
and it at liberty to provide for reservation in promotion with or
without consequential seniority. However, while
implementing/adopting/changing such policy, due process of law
needs to be followed including the dicta in M Nagran(Supra)
clarified in Jarnail Singh. The learned Single Judge held that since
the Office Memorandum dated 12.03.2002 would hold the field
until such policy is expressly repealed by the State, the State is
not within its competence and jurisdiction to deprive the benefit
of reservation in promotion with consequential seniority to
meritorious reserved category candidates without expressly
bringing any policy by superseding the benefit granted under
Office Memorandum dated 12.03.2002.
10. This Judgment and Order came to subsequently assailed in
the W.A. No. 46/2023 (Ivy Gohain Dasgupta Vs. Bhagwan Pator &
Ors); W.A No. 239/2022 (Equality Forum Vs. The State of Assam
& Ors) and W.A. No. 162/2023 (Sanjai Kumar Mahanta Vs. The
State of Assam & Ors). The Division Bench upon deciding this
issue in its entirety held that the decision rendered in the writ
appeal would prevail over all such provisions of the learned Single
Judge in the Judgment and Order dated 06.06.2022 in W.P.(C) No.
5005/2016 but in respect of any other provision which may not be
contrary or inconsistent with the provisions of the Judgment, the
same may prevail. The Division Bench did not uphold the findings
of the learned Single Judge in so far as the interpretation of
Clause (iv) of the Office Memorandum dated 03.08.2016 is
concerned. The Division Bench further provided that the decisions
rendered in the said Judgment of Division Bench in WA No.
46/2023, WA No. 162/2023 and WA No. 239/2022 would prevail
over all such provisions of the learned Single Judge in the
judgment dated 06.06.2022 rendered in WP(C) No. 5005/2016
and 5026/2016 but in respect of any other provisions which may
not be contrary or inconsistent with the provisions of this
judgment the same may prevail, but with a further clarification
that if any such provisions of the judgment of the learned Single
Judge is in conflict or contradictory to any of the provisions in the
present judgment, such provisions and the judgment of the
learned Single Judge stands modified accordingly. In the said
Division Bench Judgment, it was observed by the Division Bench
that Office Memorandum dated 18.01.2023 had in the meantime
been issued whereby the consequential seniority was withdrawn
and the catch up principle has been reintroduced. The Division
Bench declined to observe anything on merit as the said Office
Memorandum is under challenge before by way of separate writ
petitions.
11. It is this Office Memorandum dated 18.01.2023 which is
under challenge in the present proceedings which requires
consideration by this Court in the present writ petition.
12. In the above confluence of the litigation history, the facts
relevant in each of the writ petitions are summarized below:
Name of the Present Prayer in the writ petitions
Petitioner cadre of
posting
W.P. (C) 363/2023 Superintending Petitioner was working in the rank of Superintending
Sri Radheswar Langthasa Engineer, Water Engineer. Position in the provisional gradation list
Resources Deptt. dated 30.11.2022 (Pg.110 at ANNEXURE-H) as per
entry in the cadre of the petitioner was at Sl. No.11 in
the cadre of Superintending Engineer which was
subsequently brought down to Sl.17 as per the
impugned gradation list dated 18.1.2023 (Pg.116 at
Annexure-K) which was issued in adherence to the
impugned O.M dated 18.1.2023, bringing in the
redundant catch-up principle.
W.P. (C) 665/2023 Superintending The petitioner challenged the DPC meeting dated
Sri Radheswar Langthasa Engineer, Water 6.2.2023 for promotion of private respondent No. 10 to
Resources Deptt. 24 to the rank of Additional Chief Engineer from the
cadre of Superintending Engineer and downgraded the
petitioner through Violation of Rules while adhering to
impugned O.M dated 18.1.2023.
W.P. (C) 828/2023 Addl. Secretary to Petitioner is presently serving in the selection grade of
Smt. Dipa Das the Govt. of Assam Civil Services as Additional Secretary to the
Assam. (ACS) Govt. of Assam, Cooperation Deptt..Petitioner had
been deprived of her Promotion to the post of -
Secretary to the Govt. of Assam, (ACS), Grade -
2,whereas, she was downgraded in violation of Rules
while adhering to impugned O.M dated 18.1.2023. In
the gradation list of 29.12.2022, the petitioner finds
place at Sl. No.38, whereas, she was downgraded to
Sl. No.55 vide impugned final list dated 09.1.2023
(Pg.60 at ANNEXURE-C).
W.P. (C) 545/2023 Secretary to the Petitioner is presently serving in the rank of Secretary
Sri Prabir Chandra Kakati Govt. of Assam, to the Govt. of Assam . The petitioner was placed at
(ACS). Sl. No.1 under Grade 2. The petitioner was deprived of
being considered for promotion to the post of -
Commissioner and Secretary to the Govt. of Assam,
(ACS), Grade - 1. Now, vide impugned notification
dated 30.1.2023, the petitioner has been denied
promotion and incumbents (Respondent No.6 to 9)
junior to the petitioner has been considered for
promotion in violation of Rules.
W.P. (C) 1804/2023 Assistant Executive Petitioner is serving in the rank of Assistant Executive
Sri Bhagwan Pator Engineer, Water Engineer. Position in the provisional gradation list
Resources, Govt. of dated 7.9.2022 in the rank of Assistant Executive
Assam. Engineer was at sl. No.38, but in the final gradation list
dated 22.2.2023, the petitioner was brought down at
Serial No.58 and the private respondent Nos 8 to 28
had superseded the petitioner.
W.P.(C) 1819/2023 Assistant Executive Petitioner is serving in the rank of Assistant Executive
Sri Subrata Kumar Das Engineer, Water Engineer. Position in the provisional gradation list
Resources, Govt. of dated 7.9.2022 in the rank of Assistant Executive
Assam. Engineer was at sl. No.4, but in the final gradation list
dated 22.2.2023, the petitioner was brought down at
Serial No.51 and the private respondent Nos 8 to 54
had superseded the petitioner.
W.P. (C) 3095/2021 Sri Superintending The petitioner had challenged clause (iv) of the O.M.
Pranab Rabha Engineer, Public dated 3.8.2016, on the basis of which the Respondent
Works Department had conducted DPC meeting dated 25.5.2021 for
(Roads). promotion from the rank of Executive Engineer to
Superintending Engineer and their actions on the
ground of Violation of Rule 13 (4) of The Assam
Engineering (PWD) Service Rules, 1978 with a prayer
to restore the inter-se seniority of the petitioner above
the Private Respondent Nos. 9 to 36 who has
superseded the petitioner as per seniority list dated
5.5.2021. The Petitioner also prayed to direct the
secretary PWD, to prepare the Final Gradation list as
per Rule 13 (4) of The Assam Engineering (PWD)
Service Rules, 1978.
W.P. (C) 1309/2022 Sri Superintending The petitioner has challenged the actions on the
Pranab Rabha Engineer, Public ground of Violation of Rule 13 (4) of The Assam
Works Department Engineering (PWD) Service Rules, 1978 to restore the
(Roads). inter-se seniority of the petitioner above the Private
Respondent Nos. 9 to 33 as per seniority list dated
5.5.2021. The Petitioner also prayed to direct the
secretary PWD, to prepare the Final Gradation list as
per Rule 13 (4) o of The Assam Engineering (PWD)
Service Rules 1978.
W.P. (C) 3094/2021 Sri Executive Engineer, The petitioner had challenged clause (iv) of the O.M.
Bikash Ch Pangging Public Works dated 3.8.2016, on the basis of which the Respondent
Department had conducted DPC meeting dated 25.5.2021 for
(Roads). promotion from the rank of Executive Engineer to
Superintending Engineer and consequential notification
dated 28.5.2021 promoting the Private Respondent
Nos. 9 to 22 who has superseded the petitioner as per
seniority list dated 5.5.2021. The petitioner had also
challenged their actions on the ground of Violation of
Rule 13 (4) of The Assam Engineering (PWD) Service
Rules, 1978 with a prayer to restore the inter-se
seniority of the petitioner above The Petitioner also
prayed to direct the secretary PWD, to prepare the
Final Gradation list as per Rule 13 (4) of The Assam
Engineering (PWD) Service Rules, 1978.
W.P. (C) 1567/2022 Sri Executive Engineer, The petitioner had challenged clause (iv) of the O.M.
Bikash Ch Pangging Public Works dated 3.8.2016, on the basis of which the Respondent
Department had conducted DPC meeting dated 28.2.2022 for
(Roads). promotion from the rank of Executive Engineer to
Superintending Engineer and consequential notification
dated 28.5.2021 promoting the Private Respondent
Nos. 9 to 26 who has superseded the petitioner as per
seniority list dated 5.5.2021. The petitioner had also
challenged their actions on the ground of Violation of
Rule 13 (4) of The Assam Engineering (PWD) Service
Rules, 1978 with a prayer to restore the inter-se
seniority of the petitioner above The Petitioner also
prayed to direct the secretary PWD, to prepare the
Final Gradation list as per Rule 13 (4) of The Assam
Engineering (PWD) Service Rules, 1978.
W.P. (C) 3482/2020 Sri APS, Senior Grade- The petitioner had challenged the gradation list dated
Taburam Pegu II 17.7.2019, name of petitioners appear at Sl. No. 87,
88 and 92 respectively. Inter-se seniority list of APS
Officers as per notification dated 11.12.2014, name of
respectively.
W.P. (C) 1165/2023 Sri Superintending Petitioner was working in the rank of Superintending
Pranab Rabha Engineer, Public Engineer. The petitioner prays to set aside and quash
Works Department Clause (iii), (iv)(a), (v) of the O.M. dated 18.01.2023
(Roads). and prepare cadre wise seniority list in terms of Rule
13, 22 & 24 of The Assam Engineering (PWD) Service
Rules 1978 also to consider the case of petitioner in
terms of judgment passed in BhagwanPator -Vs- The
State of Assam &Ors. (W.P.(C) 5005/2016) basing
which the petitioner is entitled for consequential
seniority cadre-wise.
W.P. (C) 3096/2021 Sri Executive Engineer, The petitioner had challenged clause (iv) of the O.M.
Bidur Borgayari Public Works dated 3.8.2016, on the basis of which the Respondent
Department had conducted DPC meeting dated 25.5.2021 for
(Roads). promotion from the rank of Executive Engineer to
Superintending Engineer and consequential notification
dated 28.5.2021 promoting the Private Respondent
Nos. 9 to 22 who has superseded the petitioner as per
seniority list dated 5.5.2021. The petitioner had also
challenged their actions on the ground of Violation of
Rule 13 (4) of The Assam Engineering (PWD) Service
Rules, 1978 with a prayer to restore the inter-se
seniority of the petitioner above The Petitioner also
prayed to direct the secretary PWD, to prepare the
Final Gradation list as per Rule 13 (4) of The Assam
Engineering (PWD) Service Rules, 1978.
W.P(C) No. 677/2023 Executive Engineer Petitioner was working in the rank of Executive
Bidur Borgayari (C), PWRD Engineer. The petitioner prays to set aside and quash
Clause (iii), (iv)(a), (v) of the O.M. dated 18.01.2023
and prepare cadre wise seniority list in terms of Rule
13, 22 & 24 of The Assam Engineering (PWD) Service
Rules 1978 also to consider the case of petitioner in
terms of judgment passed in BhagwanPator -Vs- The
State of Assam &Ors. (W.P.(C) 5005/2016) basing
which the petitioner is entitled for consequential
seniority cadre-wise.
W.P(C) No. 1121/2023 Executive Engineer The petitioner belongs to the Scheduled Tribe (Plains)
Bikash Ch. Pangging Category and is entitled to avail the benefits of
reservation as envisaged under Article 16(4)(A) of the
Constitution of India. The petitioner prays to set aside
and quash Clause (iii), (iv)(a), (v) of the O.M. dated
18.01.2023 and prepare cadre wise seniority list in
terms of Rule 13, 22 & 24 of The Assam Engineering
(PWD) Service Rules 1978 also to consider the case of
petitioner in terms of judgment passed in
BhagwanPator -Vs- The State of Assam &Ors.
(W.P.(C) 5005/2016) basing which the petitioner is
entitled for consequential seniority cadre-wise.
13. Mr. D.K. Das, learned counsel for the petitioner argues that
Office Memorandum dated 12.03.2002 which has been sought to
be superseded by the impugned Office Memorandum dated
18.01.2023 cannot be permitted to be accepted inasmuch as it
will amount to overriding the provisions of the Act of 1978. The
Office Memorandum dated 12.03.2002 which was brought in by
the State, is falling from the power source from Sections 5 and 5A
of the Act of 1978. It is submitted that the Act of 1978 was
brought in pursuant to the Judgment of the Apex Court and
therefore, the Office Memorandum dated 12.03.2002 must be
understood to have been brought by the State to satisfy the
Constitutional requirements relating to reservation in promotion
with consequential seniority.
14. The further argument of the learned counsel for the
petitioner is that notwithstanding the supersession of the Office
Memorandum dated 12.03.2002, the benefit conferred to the
reserved category candidates of consequential seniority upon
promotion is protected under Section 5 of the Act of 1978 itself. It
is submitted that the State is bound to provide cadre wise
promotions and will adhere to seniority in the cadre and not as
per the date of their initial appointments.
15. It is further submitted that besides the learned Single Judge
vide Judgment and Order dated 06.06.2022, even the Division
Bench Judgment and Order dated 10.08.2023 rendered in W.A No.
46/2023 & Ors did not upset the rights of the petitioners towards
their claims for consequential seniority in reservation on
promotion. It is unheard of that pursuant to reservation on
promotion for the reserved category candidates, consequential
seniority is denied. This the learned counsel for the petitioner
submits was a concept which had long been abundant across the
country and this primitive practice of denial of consequential
seniority upon promotion being still followed by the State needs to
be suitably interfered with and the benefit of consequential
seniority be restored to the writ petitioners.
16. It is argued that if Clause (iv) of the Office Memorandum
dated 18.01.2023 is to be upheld then the same would be in
violation of the Apex Court Judgment of R.K. Sabarwal (Supra)
inasmuch as per Clause (iv), if a reserved category candidate
competes on merit then the said candidate will have to be treated
as a reserved category candidate which is quite opposed to the
law laid down by Apex Court in R.K. Sabarwal (Supra). The
further argument of the learned counsel for the petitioners is that
the Office Memorandum brings in the concept of "promotions
group-wise". Referring to the Judgment of the Apex Court in
Jarnail Singh-II, it is submitted that the promotions can't be
group-wise, it has to cadre wise. The entire unit will have to be
taken as a cadre to apply the catch up principle. It is submitted
that it is only the cadre-wise promotions which can follow and no
other. As such the Office Memorandum dated 18.01.2023 seeks to
take away the vested rights of the reserved category candidate
which cannot be permitted to be taken away.
17. It is also argued that where the Act of 1978 followed by the
Rules made thereunder are present enabling the policy of
reservation in promotion then the State cannot deny these
benefits by bringing in an Office Memorandum which is conflict
with the Act and the Rules. Although the provisions of Article 16
(4-A) and Article 16 (4B) are enabling provisions, once the
provisions are implemented by the State by bringing in the Act
followed by the Rules, it becomes an enforceable right and
therefore, the petitioners are within their rights to seek justice
from this Court and the respondents are to be suitably directed to
restore the vested right accrued to the petitioners by considering
their cases and by relegating them to their places of seniority as
per the benefit of reservation in promotion in consequential
seniority. In support of his submissions, the learned counsel for
the petitioner refers to and relies upon the following Judgments:
"1. R.K. Sabharwal and Ors. Vs. State of Punjab & Ors., reported in
(1995) 2 SCC 745;
2. Bhogeswar Saikia Vs. State of Assam & Ors, reported in (2010) 3
GLT 377;
3. Paresh Chand Deka Vs. State of Assam & Ors, reported in (2017) 4
GLT 434;
4. Chairman & Managing Director, Central Bank of India Vs. Central
Bank of India SC/ST Employees Welfare Association, reported in (2016)
1 SCC 355;
5. ST/SC Welfare Council Vs. State of Uttar Pradesh & Anr., reported in
(1997) 1 SCC 701;
6. Bhagwan Pator Vs. The State of Assam and Ors;
7. B.K. Pavitra & ors. Vs. Union of India & Ors, reported in (2019) 16
SCC 129; and
8. Jarnail Singh & Ors. Vs. Lachhmi Narain Gupta & Ors."
18. Per contra, Mr. D. Mazumdar, learned Addl. Advocate
General, Assam strongly disputes the contentions urges by the
learned counsel for the petitioners. It is submitted that both the
learned Single Judge in Bhagawan Pator (Supra) as well as the
Division Bench in Ivy Gohain Dasgupta (Supra) has categorically
held that the power to grant reservation in promotion and
consequential seniority is squarely lies with the State. The State
may decide to grant so or may decide not to grant such benefits.
As such, it is submitted that when the question of the power has
been decided by the learned Single Judge and to that extent the
findings have been upheld by the Division Bench, there is no
quarrel that the State is within its rights to bring out such law
which may confer reservation on promotion with consequential
seniority or may take away such provisions already granted earlier.
These findings rendered in by the Co-ordinate Bench which are
upheld by the Division Bench are not in appeal and therefore,
they operate against the writ petitioners as well. It is submitted
that when the impugned Office Memorandum dated 18.01.2023
was issued, the writ petition of Bhagawan Pator (Supra) was
already decided. While the W.A. No. 46/2023 (Ivy Gohain
Dasgupta) was pending disposal. Thereafter, the Division Bench
upheld the catch up rule and in the absence of any further appeal
by the petitioners, the present writ petitions are not maintainable
as the same stands squarely covered by the Judgment of the
Division Bench in Ivy Gohain Dasgupta (Supra) wherein it was
held that it is within the realm of the State to grant or not to
grant benefits of reservation on promotion with consequential
seniority. It is submitted that unless there is a specific provision
under the Rules granting consequential seniority, it is to be
accepted that "catch up" theory is the Rule which is to be
followed. It is submitted that pursuant to the Judgment rendered
in Ivy Gohain Dasgupta (Supra), it is the Division Bench Judgment
which will prevail and not the findings of the Co-ordinate Bench
more particularly in view of paragraph-47 and 48 of the said
Judgment of the Division Bench. The learned Addl. Advocate
General further submits that the reference to provisions of Section
5A of the 1978 Act that it mandates reservation of promotion with
consequential seniority, it is submitted that such submissions of
the petitioners are totally misplaced inasmuch as Section 5A of
the 1978 Act is only meant to maintain/identify the reservation
slots in terms of the Judgment rendered by the Apex Court in R.K.
Sabarwal (Supra). Relying on the provisions of Section 5A of the
Act of 1978, no challenge can be made to the impugned
Notification by the writ petitioners. Such a challenge is completely
misplaced as Section 5A of the Act of 1978 has no connection
with consequential seniority. In support of his arguments Mr. D.
Mazumdar referred to and relies on the following Judgments:
1. S. Panneer Selvam Vs. State of T.N., reported in (2015) 10
SCC 292;
2. Sudhakar Baburao Nangnure Vs. Nareshwar Raghunathrao
Shende, reported in (2020) 11 SCC 399;
3. Ajit Singh (2) Vs. State of Punjab, reported in (1999) 7 SCC
209; and
19. Mr. K.N. Choudhury, learned Senior Counsel representing
the private respondents also strongly disputes the contentions
raised by the writ petitioners. He refers to the Paragraphs 45, 46,
47 & 48 of the Judgment of the Division Bench in Ivy Gohain
Dasgupta (Supra) to submit that pursuant to the decision of the
Division Bench, there is no further question required to be
decided as the Division Bench has categorically upheld the power
of the State to grant or not to grant consequential seniority for
reservation in promotion. He submits that there is no question of
any vested rights to the reserved category candidates as it is a
policy decision which can be altered by the State and the same
has been done by the Office Memorandum dated 18.01.2023.
Since both the learned Single Judge as well as the Division Bench
in Bhagawan Pator (Supra) and Ivy Gohain Dasgupta (Supra)
respectively has upheld the State's power to confer or not to
confer consequential seniority on promotion reserved category
candidates, the State by the Notification under challenge dated
18.01.2023 has decided to take away the benefits which may
have been granted earlier and therefore, as there is no further
appeal against the Judgment and Order passed by the Division
Bench in Ivy Gohain Dasgupta(Supra), the decision of the Court
that the State is within its power to grant or reject such benefits
on promotion with consequential seniority has attained finality. It
is further submitted that the earlier Office Memorandum dated
03.08.2016 has been upheld by the Division Bench in Ivy Gohain
Dasgupta (Supra). Consequently, the Office Memorandum dated
18.01.2023 is an extension thereof. It is further submitted that
the reserved categories candidates have no vested rights which
they can complain about. The learned Sr. counsel submits that no
individual facts have been pleaded by the writ petitioners and as
such it is not understood what relief the writ petitioners are
claiming without reference to their individual facts in each of the
cases. In support of his contentions, the learned Senior Counsel
refers to the Judgment of Ajit Singh Januja & Ors Vs. State of
Punjab and Ors, reported in (1996) 2 SCC 715; S. Panneer Selvam
Vs. State of T.N., reported in (2015) 10 SCC 292 and Mukesh
Kumar and Anr. Vs. State of Uttarakhan and Ors, reported in
(2020) 3 SCC 1.
20. The rival submissions have been heard and carefully
considered. The pleadings available on record have also been
carefully perused. The Judgments cited in the Bar have also been
noted.
21. To address the issues raised in the present writ petitions, it
will be necessary to refer to a few provisions of the Assam
Scheduled Castes and Scheduled Tribes (Reservation of posts in
services) Act, 1978. This Act was published in the Assam Gazatte
(Extraordinary) on 28.05.1979. It is this Act has been brought by
the State of Assam to provide for reservation of vacancies in
services and posts for the members of the Scheduled Castes and
Scheduled Tribes. The statement and object of reasons is quoted
as under:
"In order to provide for reservation of vacancies in services and posts
for the members of the Scheduled Castes and Scheduled Tribes who
are the Backward Classes of citizen and are not adequately
represented in the services and posts in the affairs of the State
within the State, it was considered expedient to provide adequate
reservation of vacancies in services and posts for them."
22. Under Section 5 of the Act of 1978, it is provided that
reservation for members of Scheduled Castes and Scheduled
Tribes in posts to be filled up by promotion in any establishment
shall be regulated in the manner provided thereafter.
Clause 5A provides the percentage of reservation for each
category namely, 7% for members of Scheduled Caste, 10% for
members of Scheduled Tribes (Plains) and 5% for members of
Scheduled Tribes(Hills) and further provided that the State
Government may from time to time review the implementation of
the reservation policy and take adequate measures including the
increased of percentage mentioned in the clause.
Section 5B provides for separate post based roster for
recruitment and promotion for each cadre to be maintained by
every establishment for reservations of candidates of Scheduled
Castes and Scheduled Tribes as contained therein.
23. Clause 5A was subsequently inserted by an amendment.
Clause 5-A is extracted as under:
"5A Manner and procedure for giving effect of reservation-
The reservation for the members of the Scheduled Castes and the
Scheduled Tribes in services or posts in an establishment shall be
given effect to in the following manner, namely:
(i) A post based Roster Register shall be maintained to give effect to
the reservation of vacancies for Scheduled Castes and Scheduled
Tribes. Such roster shall be based on the Model roster as per Schedule
I and II appended to this Act and shall be adopted for the purpose by
each Establishment in such manner that the prescribed percentage of
reservation is maintained in each cadre;
(ii) Each Appointing authority shall prepare and notify the roster based
on the principles laid down in this Act and maintain Roster Register in
a manner containing such number of points as are equivalent to the
number of posts, in a cadre. In case of any increase or decrease in the,
cadre strength, the roster shall correspondingly by expanded or
contracted;
(iii) The roster is to be operated on the principle of replacement and
not as a running account, in other words, the point at which
reservation for different categories applies are fixed as per the roster
and vacancies caused by retirement etc. of persons occupying those
points shall be filled up by appointment of persons of the respective
categories;
(iv) Separate rosters are to be maintained for giving effect to
reservation in direct recruitment and promotion;
(v) Cadre, for the purpose of a roster, shall mean a particular grade
and shall comprise the number of posts to be filled by a particular
mode of recruitment in terms of the applicable recruitment rules. Thus
in a cadre of say, 100 posts, where the recruitment rules prescribe a
ratio of 50:50 for direct recruitment and promotion, two roster- one
for direct recruitment and one for promotion (when reservation in
promotion applies)each comprising 50 points shall be drawn up on the
lines of the respective rosters;
(vi) Since reservation does not apply to transfer on deputation or
transfer, where the recruitment rules prescribe a percentage of posts
to be filled by this method, such posts shall be excluded while
preparing the rosters;
(vii) Appointment of candidates belonging to Scheduled Castes and
Scheduled Tribes which were made on merit and not due to
reservation, are not to be counted towards reservations so far as
direct recruitment is concerned. In other words, they are to be treated
as general category appointments;
(viii) For initial adoption of this post based roster, the existing backlog
vacancies in a cadre where the prescribed percentage of reservation
for the Scheduled Castes and the Scheduled Tribes has not been
achieved as per post based roster prepared under this Amendment Act,
shall be considered as vacancies released by recruitment, resignation,
promotion etc. of the persons belonging to the said reserved
categories and the same are to be filled up by direct recruitment or by
promotion of eligible persons from the respective categories by special
drive so that the prescribed percentage of reservation is maintained.
(ix) Before making an appointment by direct recruitment, the
Appointing authority shall ascertain by consulting the Roster Register
maintained by each Establishment, whether the post is reserved or
unreserved and if it is reserved, for whom it is so reserved.
Immediately after an appointment is made, the particulars thereof
shall be entered in the Roster Register and signed by the Appointing
authority;
(x) In the absence of a qualified Scheduled Castes or Scheduled Tribes
candidate, as the case may be, in a particular year, the vacancy shall
be carried forward and filled up in the next year;
(xi) Every Establishment shall prepare and notify the roster for each
cadre equivalent to the number of posts with the concurrence of the
Personnel Department and Welfare of Plains Tribes and Backward
Classes Department;
(xii) The roster shall be maintained separately for permanent and
temporary posts;
(xiii) A vacancy caused due to any reason whatsoever, except
termination of service during probation, shall be treated as a fresh
vacancy;
(xiv) A candidate who claims to be a member of the Scheduled Castes
or the Scheduled Tribes shall support his candidature by a Certificate
from Deputy Commissioner/ Sub-Divisional Officer or from such other
authority as may be prescribed by rules made under the Act."
24. Under Section 13 of the said Act, the Government is
empowered to frame the Rules for implementing the provisions of
the Act and inconsequence thereof, the Assam Scheduled Castes
and Scheduled Tribes (Reservation of vacancies in services and
posts) Rules, 1983 was framed.
25. A perusal of the Act and the Rules above revealed that
under Section 5A of the Act of 1978, the following conditions inter
alia are noticed:
(i) A post based roster is to be maintained. The roster is to be
operated on the principle or replacement and not as a running
account;
(ii) The cadre shall mean a particular grade and shall comprise the
number of posts to be filled up by particular mode of recruitment;
and
(iii) The appointment made on merit of reserved candidates shall
not be counted towards the reserved category posts.
26. The parliament by the 77th Amendment had inserted Clause
4A under Article 16 of the Constitution of India. Clause 4A
empowers the State to make any provision for reservation.
Subsequently by the 85th Amendment, further amendment was
brought in to Clause 4A of the Constitution of India to the effect
that nothing in the Article shall prevent the State from making any
provisions for reservation in matters of promotion with
consequential seniority to any class or classes of posts in the
services under the State in favour of Schedules Casts and
Scheduled Tribes which in the opinion of the State are not
adequately represented in the services of the State. Pursuant to
the 77th and 85th Amendment, the State of Assam had brought in
the Office Memorandum No. ABP.59/96/163 dated 12.03.2002. By
the said Office Memorandum, consequential seniority was made
available to the Scheduled Castes/Scheduled Tribes Government
Servants upon their promotions by virtue of the Rule of
reservation/roster. This benefit was made available to the
reserved category Government servant w.e.f 17.06.1995. As such
by the Act of 1978 by virtue of Section 5 reservation in promotion
to the reserved category candidates was already in place well
prior to the Constitutional Amendment to Article 16. By the Office
Memorandum dated 13.03.2002, the consequential seniority upon
promotion to the reserved category candidates was also
introduced. Subsequently, Section 5A was introduced pursuant to
an Amendment. The 2012 Office Memorandum was subsequently
followed by another Office Memorandum dated 29.12.2014. The
said Office Memorandum provided for the guidelines to implement
the post based roster reservation system. In the said Office
Memorandum of 29.12.2014 at Clause 1.11, it is provided that the
rosters are an aid to determine the entitlement of different
categories with regard to the quota reserved for them in matters
of appointment and promotion. They are not intended to
determine seniority in the cadre. Pursuant to the Judgment of the
Apex Court rendered in M Nagaraj & Ors. Vs. Union of India,
reported in (2006) 8 SCC 212and the U.P. Corporation Limited
(Supra) that there is a requirement of the State to have a
quantifiable data on the backwardness and inadequacy of the
representation of the reserved category candidates before
effecting the promotion to the reserved category candidates. In
pursuance to the said Judgment by the Apex Court, State of
Assam constituted a One-Man-Committee. The One-Man-
Committee submitted its report to the effect that there is
inadequacy of representation in the reserved category and
backwardness of the classes and therefore the One-Man-
Committee report suggested that reservation in promotion should
be continue. This report came to be assailed in writ petitions filed
before the Gauhati High Court being W.P(C) No. 1560/2015 and
W.P.(C) No. 2680/2015 which was filed by the society named
Equality Forum and other individuals. A Co-ordinate Bench of this
Court by its Judgment and Order dated 23.12.2015 rejected the
contentions of the State Government to proceed for reservation in
promotion on the basis of the recommendation of the One-Man-
Committee report. It was held by the Co-ordinate Bench that the
mandate in M Nagarajan (Supra) and U.P. Power Corporation
(Supra)to have quantifiable data is not satisfied by the One-Man-
Committee report in the manner it sought to project the same. It
was held that there has to be an exercise of collection of
quantifiable data relating to the three Constitutional requirements,
namely (i) backwardness of the class; (ii) inadequacy of
representation in public service and (iii) overall efficiency in
administration in the event of reservation, are the quantifiable
data which are to be collected by the State before proceeding for
reservation in promotion. The Co-ordinate Bench held that till
such quantifiable data is collected. The Amendment of the Act of
1978 brought in by the 2012 Office Memorandum in so far as the
reservation in promotion are concerned shall remain in a domain
state.
27. Thereafter, the Government by Office Memorandum dated
03.08.2016 vide No. TAD/BC/68/2011/Pt-I/207 brought in the
said Office Memorandum for review of the Government Policy of
reservation in promotion with reference to the Judgment of the
Gauhati High Court in Equality Forum in W.P(C) No. 5610/2015.
The said Office Memorandum brought in the various guidelines to
be followed while considering promotion in any cadre in any
establishment. It was provided that the policy of reservation in
promotion will continue. Under Clause (ii) of the said Office
Memorandum, it was laid down that while taking up the process
of promotion in a particular cadre of the service, every
establishment shall examine the representation of SC, ST(P) and
ST(H) candidates in a cadre in comparison with the prescribed
percentage of reservation and calculate shortfall if any in any
cadre with reference to a particular year. If in any particular cadre,
the SCs and STs are not adequately represented and shortfall is
found to exist in the cadre, they may be considered as backward
in so far as that particular cadre is concerned. Such shortfall shall
be filled up by the concerned category of incumbents within the
zone of consideration either on account of seniority-cum-
merit/merit-cum-seniority or by way of providing reservation as
the case may, till the prescribed percentage in respect of the said
category is achieved. If no eligible incumbents belonging to the
shortfall category are available within the zone of consideration
then the number of posts that are required to meet the calculated
shortfall shall be kept vacant and the vacancy shall be carry
forward and filled up in the next year.
28. Sub-clause (iv) provides that during the promotion process
where the stipulated percentage of reserved category is met, but
in the gradation list/seniority list, there are candidates of reserved
category who on merit are entitled to promotion then their cases
shall be considered for promotion on merit if such candidate has
not gained the seniority by way of any accelerated promotion
earlier.
29. Since the Office Memorandum dated 03.08.2016 is also
relevant for the purposes of this case, the same is extracted
below:
"GOVERNMENTOFASSAM
DEPARTMENT OF WELFARE OF PLAINS TRIBES AND BACKWARD CLASSES
DISPUR ::::ASSAM
No. TAD/BC/68/2011/Pt-I/207 dated Dispur 3rd August, 2016
OFFICE MEMORANDUM
Subject: Review of Government Policy of Reservation in Promotion
with reference to the Hon'ble Gauhati High Court judgments
With a view to bringing the policy of reservation in promotion for
reserved categories in line with the directions of the Hon'ble High Court,
Government have reviewed the existing procedure of effecting reservation
in promotion and accordingly lays down the following guidelines to be
followed while considering promotion in any cadre in any establishment
i) The policy of reservation in promotion shall continue.
ii) ii)Each establishment while taking up the process of
promotion in a particular cadre of a service, shall examine the
representation of SC,ST (P) and ST(H) candidates in the cadre in
comparison with the prescribed percentage of reservation and calculate
shortfall if any, in the cadre with reference to that particular year. Shortfall
of reservation of a particular reserved category in a cadre means the
difference between the total number of reserved posts for that category
in the cadre and the number of persons of that category holding the posts
in the cadre. While calculating the shortfall, all candidates belonging to
the same category [SC or ST(P) or ST (H)] shall be taken into account
irrespective of the mode of their entry into the cadre i.e. whether on
account of seniority- cum-merit or merit cum seniority, as the case may
be, or through any other process admissible in law or by way of
reservation. If in a particular cadre, SCs and STs are not adequately
represented and shortfall is found to exist in the cadre, they may be
considered as backward insofar as that particular cadre is concerned.
Such shortfall shall be filled up by the concerned category of incumbents
within the zone of consideration either on account of seniority-cum-merit/
merit-cum-seniority or by way of providing reservation as the case may
be, till the prescribed percentage in respect of the said category is
achieved.
iii) If no eligible incumbent belonging to the shortfall category
is available within the zone of consideration, this will further substantiate
the status of backwardness and inadequate representation of category in
the cadre and therefore the number of posts that are required to meet the
calculated shortfall shall be kept vacant and the vacancy shall be carried
forward and filled up in the next year. In case, sufficient number of SC or
ST(P) or ST(H) candidates fit for promotion against reserved posts are not
available and if the posts cannot be allowed to remain vacant on grounds
of maintaining efficiency in administration, the appointing authority may
with full justification, refer the vacancy to the Department of WPT and BC
for de-reservation, subject to the condition that no candidate belonging to
the category for which the post is reserved is available within the zone of
consideration placed before the annual Selection Committee/
Departmental Promotion Committee for two consecutive years. In other
words, the concerned Department may move proposal for de-reservation in
the third year.
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.
v) As regards the question of maintaining administrative
efficiency as required under Article 335 of the Constitution of India,
Hon'ble High Court held that,"......it should be assessed applying objective
measurable standards."In that sense, the Annual confidential
Reports(ACR)/Annual Performance Appraisal Reports(APAR) of the
incumbent alongwith the length of service, participation in training
programs concerning job requirements, acquisition of degrees or diplomas
or diplomas on subject if mandatory to the job, should be considered as
the yardstick of measuring efficiency.
vi) It shall be the responsibility of the concerned appointing
authority to provide adequate information concerning the above to the
Selection Committee (Department Promotion Committee) which shall
evaluate all relevant parameters while making its recommendation.
This shall come into force with immediate effect.
Sd/-
(Rajiv Kumar Bora IAS)
Additional Chief Secretary to the Govt.of Assam,
WT&BC Department, Dispur."
30. It is this Office Memorandum more particularly Clauses (iii)
and (iv) of the said Office Memorandum which came to be
assailed by the writ petition being W.P(C) No. 5005/2016
(Bhagwan Pator) on the ground that the Clause (iii) and (iv) will
have the effect of de-reservation in respect of promotion and
promotion on merit to which a reserved category candidate is
otherwise entitled to and which is sought to be taken away. This
Office Memorandum was also challenged by the registered society
Equality Forum by filing W.P.(C) No. 5026/2016 on the ground
that this Office Memorandum is in violation of the Judgment
rendered earlier by the Co-ordinate Bench in Judgment dated
23.12.2015 rendered earlier by the Co-ordinate Bench in W.P(C)
No. 1560/2015 and W.P(C) No. 2680/2015. These writ petitions
came to be heard and disposed of together by Co-ordinate Bench
and by Judgment and order dated 06.06.2022, the Co-ordinate
Bench finally held as under:
"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. 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."
31. The Co-ordinate Bench went on to hold the policy of
providing reservation in promotion with consequential seniority
holding the field as per Office Memorandum dated 12.03.2002,
the State is not within in competence and jurisdiction to deprive
the benefit to a meritorious reserved category candidate and that
too without expressly bringing such policy by superseding the
benefit granted under Office Memorandum dated 12.03.2009. The
Co-ordinate Bench held that the policy of providing reservation in
promotion with consequential seniority is holding the field. The
Co-ordinate Bench also held that Article 16 (4A) and Article 16(4B)
being enabling provisions, the State is at liberty to implement its
policy for giving reservation in promotion with consequential
seniority or is at liberty not to provide for any reservation in
promotion. But these policies will have to be implemented
following due process of law including the dicta rendered in M
Nagaraj (Supra) and clarified in Jarnail Singh (Supra).
32. This Judgment came to be assailed before the Division
Bench of this Court in W.A No. 46/2023 and other connected writ
appeals. A Division Bench of this Court elaborately dealt with the
issues raised and overturned the Judgment of the learned Single
Judge. The Division Bench upheld the Office Memorandum dated
03.08.2016 and also held that in view of the Judgment of the
Apex Court in Jarnail Singh Vs. Laxmi Narayan Gupta, reported in
(2018) 10 SCC 396 (hereinafter referred to as "Jarnail Singh-I")
that the Judgment of the learned Single Bench rendered in
Equality Forum (supra) is no longer a good law and therefore the
findings of the Single Bench rendered in Equality Forum(Supra)
would no longer be binding on the State.
33. It is pertinent to mention here that the impugned Office
Memorandum dated 18.01.2023 which is presently assailed in
these bunch of writ petitions came to be issued by the State of
Assam after the Judgment of the learned Single Bench rendered
in Bhagawan Pator (Supra) but during the pendency of the writ
appeal No. 46/2023 and other connected writ appeals and prior to
the Judgment dated 10.08.2023 rendered by the Division Bench in
these writ appeal. The impugned Office Memorandum being
assailed in the present Office Memorandum is extracted below:
"GOVERNMENT OF ASSAM
DEPARTMENT OF PERSONNEL:::: PERSONNEL (B)
DISPUR::::GUWAHATI-06
No. ABP.81/2022/58 Dated Dispur, the 18th January, 2023
OFFICE MEMORANDUM
SUBJECT: Review of Government Policy of Reservation in Promotion
with reference to the Hon'ble Gauhati High Court judgments.
The Hon'ble Gauhati High Court in its judgment and order dated
06.06.2022 in W.P.(C) No. 5005/2016 (Bhagwan Pator-Vs. SOA & Ors) and
WP(C) No. 5026/2016 (Equality Forum-Vs-SOA & Ors) at Para 7 (IX) of this
order, has observed that,
"Para 7(IX): Article 16 (4A) and 16(4B) being enabling provision, the State is
at liberty to implement its policy of giving reservation in promotion with
consequential seniority, without consequential seniority or at liberty not to
provide any reservation in promotion. However, while implementing such
policy, due process of law need to be followed including dicta in M Nagraj
(Supra) clarified in Jarnail Singh (Supra)."
The Government of Assam after careful examination of the Hon'ble High
Court judgment dated 23.12.2015 in W.P.(C) No. 1560 (Equality Forum-Vs-
SOA & 3 Ors.) and the judgment dated 06-06-2022 in WP(C) No. 5005/2016
and WP(C) No. 5026/2016, has reviewed the existing procedure of effecting
'reservations in promotion with consequential seniority for the reserved
categories and accordingly lays down the following guidelines to be followed
while considering promotion in any establishment.
i) The policy of reservation in promotion shall continue,
ii) Each Establishment while taking up the process of promotion in a
particular cadre of a service, shall examine the representation of SC, ST(P)
and ST(H) candidates in the cadre in comparison with the prescribed
percentage of reservation and calculate shortfall if any, in the cadre with
reference to that particular year. Shortfall of reservation of a particular
reserved category in cadre means the difference between the total number
of reserved posts for that category in the cadre and the number of persons
of that category holding the posts in the cadre. While calculating the shortfall,
all candidates belonging to the same category [SC or ST(P) or ST(H)] shall
be taken into account irrespective of the mode of entry into the cadre i.e.
whether on account of seniority-cum-merit or merit cum seniority, as the
case may be, or through any other process admissible in law or by way of
reservation. If in a particular cadre, SCs and STs are not adequately
represented and shortfall is found to exist in the cadre, it may be considered
as inadequacy in representation insofar as that particular cadre is concerned.
Such shortfall shall be filled up by the concerned category of incumbents
within the zone of consideration either on account of seniority-cum-merit/
merit-cum-seniority or by way of providing reservation as the case may be,
till the prescribed percentage in respect of the said category is achieved.
iii) If no eligible incumbent belonging to the shortfall category is available
within the zone of consideration, this will further substantiate the status of
backwardness and inadequate representation of the category in the cadre
and therefore the number of posts that are required to meet the calculated
shortfall shall be kept vacant and the vacancy shall be carried forward and
filled up in the next year. In case, sufficient number of SC or ST(P) or ST(H)
candidates, fit for promotion against reserved posts, are not available and if
the posts cannot be allowed to remain vacant on grounds of maintaining
efficiency in administration, the Appointing Authority may with full
justification, refer the vacancy to the Department of Personnel for de-
reservation, subject to the condition that no eligible candidate belonging to
the category for which the post is reserved, is available within the zone of
consideration placed before the annual Selection Committees Departmental
Promotion Committee for two consecutive years. In other words, the
concerned Departments may move proposal for de-reservation in the third
year.
iv) (a) In case of promotion in Group-A services, the quantum of
reservation for SC, ST(P), STCD in promotion shall be as per stipulated
percentage of reservation available for these categories. However, SC or
ST(P) or ST(H) Government Servants in Group-A services on their
accelerated promotion by virtue of rule of reservation, shall not be entitled to
consequential seniority. The application of general catch-up rule will allow
eligible officers who were senior in the merit list at the entry level in Group A
services to regain their seniority in the promotional post, once they are
promoted to the same cadre as an officer of reserved category, provided the
officer of the reserved category had got his promotion ahead of an officer
senior to him in the merit list, by way of accelerated promotion on account of
reservation in promotion in a particular cadre. Seniority of Government
servants in Group-A services shall be revised accordingly as per above
principle.
Further, an officer promoted from Group-B to Group-A service, will
also regain his seniority in Group-A service on promotion vis-a-vis his
compatriot in Group-B service, provided that the officer was senior to the
reserved category officer in the particular Group B cadre, prior to the
promotion of the reserved category officer into Group A. Seniority of such
Group B Government servant promoted to Group A service shall be revised
accordingly in Group A.
If an occasion arises during the promotion process in Group A service,
in which stipulated percentage in respect of reserved category is met in the
next promotional grade, but in the zone of consideration there are
candidates of reserved category who on merit are entitled to the promotions,
their cases shall be considered for promotion on merit, if such candidates
have not made into zone of consideration by way of any accelerated
promotion earlier by virtue of rule of reservation.
(b) In case of promotion in Group B, C and D services, the quantum of
reservation for SC, ST(P), ST(H) in promotion shall be as per stipulated
percentage of reservation of these categories. The SC or ST(P) or ST(H)
Government servants on their promotion by virtue of rule of reservation shall
be entitled to consequential seniority. In other words candidates belonging to
General/OBC/MOBC categories promoted later will be placed junior to the
Scheduled Castes/ Scheduled Tribes Government servant promoted earlier.
Seniority of Government Servants in Group-B, C and D services shall be
revised accordingly.
v) As regards the question of maintaining administrative efficiency as
required under Article 335 of the Constitution of India, Hon'ble High Court in
WP(C) No.1560/2015 (Equality Forum-Vs-SOA & 3 Ors.) held that "......it
should be assessed applying objective measurable standards". As such, the
Annual Confidential Reports (ACR)/ Annual Performance Appraisal Reports
(APAR) of the incumbent along with the length of service, participation in
training programs concerning job requirements, acquisition of degrees or
diplomas on subjects if mandatory to the job, may be considered as the
yardstick of measuring efficiency.
vi) It shall be the responsibility of the concerned appointing authority to
provide adequate information concerning the above to the Selection
Committee (Departmental Promotion Committee) which shall evaluate all
relevant parameters while making its recommendation.
This Office Memorandum is issued in supersession of earlier O.M. No.
ABP.59/96/163, dated 12/03/2002 and OM No. TAD/BC/68/2011/Pt-
I/207,dated 03/08/2016.
This shall come into force with immediate effect.
Sd/- Tonmoy Pratim Borgohain, IAS
Secretary to the Government of Assam
Personnel Department"
34. The Clauses No. (iii), (iv)(a) and (v) of this Office
Memorandum are challenged in these writ petitions. The essence
of this Office Memorandum is that the State of Assam has decided
to continue the policy of reservation and promotion but has done
away with the consequential seniority of the reserved category
candidates and has instead brought in the "catch-up Rule"
enabling the General category candidates who were senior in the
feeder posts to regain their seniority in the higher post after
promotion provided the reserved category candidate who was
promoted earlier did not earn a further promotion and the General
category candidate was senior to the said reserved category
candidate in the feeder category.
35. It is no longer res integra that Article 16 (4A) and Article 16
(4B) had been held to be enabling provisions by the Apex Court in
M. Nagaraj (Supra) and the subsequent Judgments. If these
provisions are enabling provisions then the State is at liberty to
provide for reservation in promotion with or without consequential
seniority as the case may be, if such a decision is arrived at by
the State. Both the Co-ordinate Bench in Bhagawan Pator (Supra)
as well as a Division Bench in Ivy Gohain Dasgupta (Supra) had
categorically held that the State is at liberty to grant seniority in
promotion to the reserved category or not to grant such seniority
in promotion to the reserved category.
36. A careful perusal of the Act read with the Rules will reveal
that even prior to the 77th and 85th Constitutional Amendments,
the State by way of the Act of 1978 read with the Rules of 1983
had made provisions for reservation in promotion of in respect of
reserved categories. This Act and the Rules are not department
specific and are applicable to all the Departments/establishments
in respect of such promotions to be made to the Government
Servants who satisfy the criteria. The Act read with the Rules
nowhere specifically provides for grant of consequential seniority
upon promotion of the reserved category candidates. It is in the
absence of such provisions that the State had brought out the
Notifications and Office Memorandums from time to time. By
Office Memorandum dated 12.06.1996 pursuant to the Judgment
of the Apex Court rendered in Union of India & Ors. Vs. Virpal
Singh Chauhan & Ors, reported in (1995) 6 SCC 684, it was
provided that the candidates promoted earlier by virtue of Rule or
reservation/roster shall not be entitled to seniority over his senior
in the feeder category and that as an when the General category
candidate who was senior to the reserved category candidate in
the feeder category is promoted, such General category candidate
with regain his seniority over his reserved category.
Notwithstanding that he was promoted subsequent to the
reserved category candidate. This Office Memorandum was
followed by the Office Memorandum dated 12.03.2002 by which
pursuant to the Amendment of Article 16 (4A) of the Constitution
of India. The State of Assam conferred consequential seniority to
the reserved category Government servants on their promotion by
virtue of the Rule of reservation/roster. The earlier Office
Memorandum dated 12.06.1996 was accordingly revised and
superseded. This Office Memorandum was followed by the
subsequent Office Memorandum on 03.08.2016.
37. A careful perusal of the Office Memorandum dated
03.08.2016 reveals that this Office Memorandum was not issued
in supersession of the earlier Office Memorandum dated
12.03.2002. It was in this context that the Office Memorandum
dated 03.08.2016 was put to challenge and the Co-ordinate Bench
in Bhagawan Pator (Supra) had essentially held the Clauses put to
challenge in the Office Memorandum dated 03.08.2016 to be not
valid in view of the fact that the position in terms of the Office
Memorandum dated 12.03.2002 remained unchanged.
38. The contention of the learned counsel for the petitioners
that the policy of consequential seniority has always been in place
and followed by the Government of Assam and the same could
not have been recalled or turned down as had been sought to be
done by the impugned Office Memorandum dated 18.01.2023,
will require examination in the above conspectus of facts.
39. As above discussed, although well prior to the Constitutional
Amendments brought in to Article 16 of the Constitution, the
State of Assam by the Act of 1978 read with the Rules of 1983
had implemented the policy of reservation on promotion. There is
no quarrel with this position on facts. The point of discord is
whether the Act itself contemplates consequential seniority in
respect of the reserved category candidates who have been
promoted under the reservation policy and therefore the principle
of consequential seniority having been conferred under the Notice
dated 12.03.2002 and the source of power for which can be
traced back to the Act of 1978, whether denial of such principle in
terms of the impugned notification will amount to the vested
rights of the writ petitioners being taken away.
40. The Act of 1978 read with the Rules have been brought in
by the State with the object of providing reservation in
promotions. The statement of objects and reasons clearly provide
that the Act proposes to provide for reservation of vacancies in
services and posts for the members of Scheduled Castes and
Scheduled Tribes who are backward classes and are not
adequately represented in the services and posts in the affairs
within the State. A careful perusal of the Act including the
Amendment brought thereto reveals that the Act provides for
maintaining a post based roster. Cadre is defined, for the
purposes of roster, to mean a particular grade and shall comprise
the number of posts to be filled up by particular modes of
recruitment in terms of the applicable recruitment Rules. The
roster to be maintained shall be separate for direct recruitment as
well as for promotions. The Rules of 1983 have been framed
under the powers conferred under Section 13 of the Act of 1978.
Under Rule 5 of the said Rules, the procedure to be followed is
prescribed in respect of promotions by selection. Under Rule 5(2),
the Selection Committee will consider the suitability of all
candidates, the details of whom are furnished by the appointing
authority and thereafter recommend a list of candidates found
suitable for promotion in order of preference which shall be the
determining factor about the inter se seniority of the candidates
after promotion. Rule 5(3) provides that in addition to the list as
required to be submitted under Rule 5(2), Selection Committee
shall furnish separate list of candidates belonging to Scheduled
Castes, Scheduled Tribes (Hills), Scheduled Tribes (Plains) and
others in order of preference for appointment against the
vacancies shown to be reserved for Scheduled Castes, Scheduled
Tribes(Hills), Scheduled Tribes(Plains) against the unreserved
vacancy. Under Rule 5(4), the appointing authority shall consider
the list in accordance with the provisions of the respective service
Rules and shall consult the APSC where such consultation is
necessary. Under Rule 6, the appointing authority is required to
maintain a register as per the proforma appended to the Rules
separately for direct recruitment and for promotion. This register
shall be maintained in respect of every year beginning on the 1st
of March and ending on the last day of February in the next year.
Further Rule 4 of the Rules provides for submission of annual
report showing the position regarding appointment of candidates
belonging to Scheduled Castes, Scheduled Tribes by direct
recruitment and by promotion shall be submitted by each
administrative department to the department for the Welfare of
Plains Tribes and Backward Classes. The relevant provisions of
the Rules are extracted below for ready reference:
"5. Promotion by selection- While filling up vacancies by promotion
the following procedure shall be followed-
1) The Appointing Authority while making a request to the selection
Committee/Board for recommending candidates for promotion, shall
communicate to the Selection Committee / Board the details about the
reservation for the Scheduled Castes and scheduled Tribes (Hills) and
Scheduled Tribes (Plains) and shall also furnish the details about such
number of candidates as are to be furnished in accordance with the
provisions of the respective service rules. In case however, where
there is no service rules for the service in which the promotion is to be
made, the Appointing Authority will furnish the details about the
candidates equal to four times the number of vacancies.
(2) The Selection Committee/ Board will consider the suitability of all
the candidates the details of whom are furnished by the appointing
authority and recommend a list of candidates found suitable for
promotion in order of preference, which shall be the determining
factor about the inter se seniority of the candidates after promotion.
(3) In addition to the list mentioned in sub-rule (2) above, the
Selection Committee shall furnish separate list of candidates belonging
to Scheduled Castes, Scheduled Tribes (Hills), Scheduled Tribes
(Plains) and others, in order of preference for appointing against the
vacancies shown as reserved for Schedules Castes and Scheduled
Tribes (Hills) and Scheduled Tribes (Plains) and against the
unreserved vacancies.
(4) The Appointing Authority shall consider the list in accordance with
the provisions of the respective service rules and shall also consult the
Assam Public Service Commission where such consultation is
necessary, and shall finally approve the list.
(5) The Appointing Authority shall thereafter make promotions in
accordance with the roster provided in Clause (1) of the Scheduled to
the Act in Order of preference indicated in the lists.
(6) In case of non availability of adequate number of candidates
belonging to Scheduled Castes and Scheduled Tribes (Hills) and
Scheduled Tribes (Plains) in the list mentioned in sub-rules (2) and (3)
of this rule and if it is considered that the vacancies reserved for these
categories of candidates cannot be left vacant in the interest of Public
Service, the Appointing Authority with prior concurrence of the
Department for the Welfare of Plains Tribes and Backward Classes
shall issue orders deresrving the vacancies giving one explanation for
the dereservation, and shall thereafter fill up the dereserved vacancies
by promoting officers from the list furnished by the Selection
Committee/Board and approved by the Assam Public Service
Commission/Appointing Authority in order of preference. The vacancy
so dereserved shall be carried forward till the vacancy is filled up by a
candidate in whose favour the reservation stood in the roster.
6. Maintenance of Registers of the appointment- Even
Appointing Authority shall maintain the register as mentioned iy
Section 12(i) of the Act and also in para (ii) of the Schedule to the Act
in respect of every year beginning on the first march and ending on
the last day of February in the next year, in the proforma furnished at
Appendix-II separately for direct recruitment and for promotion.
7. Submission of Annual Report- An annual report showing the
position regarding appointment of candidates belonging to Scheduled
Castes, Scheduled Tribes by direct recruitment and by promotion shall
be submitted by each Administrative Department to Department for
the Welfare of Plains Tribes and Backward Classes in the manner
prescribed below-
(1) The annual report shall be for the period from the first day of
March to the last day February next.
(2) As soon after the first day March every year as possible, every
Appointing Authority shall sent to the respective administrative
Department-
(i) a Statement in the form given in Appendix-III showing the total
number of employees in each class of service indicating the number of
employees belonging to the Scheduled Castes and Scheduled Tribes;
and
(ii) a Statement each in the proforma given in Appendix-IV A and
Appendix-IV B, showing the particulars of appointments made during
the year and the number of appointees belonging to Scheduled Castes
and Scheduled Tribes.
(3) The Administrative Department shall consolidate all the reports
submitted by different Appointing Authority under its administrative
control and submit the report as provided in the substantive clause of
this rule."
41. A careful perusal of the Act of 1978 read with the Rules will
reveal that no such mandate under the Act or the Rules is
discernable. This is qualified by the fact that the Government of
Assam had from time to time issues various Office Memorandums
either conferring consequential seniority or withdrawing the
benefit of consequential seniority. If the provisions of the Act of
1978 and the Rules of 1983 are to be read together then it is
clear that there is no policy available under the Act of 1978 read
with the Rules of 1983 which confers automatic consequential
seniority on the reserved category candidates who have been
granted accelerated promotion on the reservation policy. In the
absence of any specific provisions thereto, it cannot be assumed
that accelerated promotions made under the reservation policy
will necessarily be also conferred with the benefits of
consequential seniority. On the contrary, in the absence of any
such specific provisions or criteria specified under the Act of 1978
read with the Rules of 1983, it can only mean that the benefits of
accelerated promotion would not grant consequential seniority.
This benefit of consequential seniority has been conferred by the
State by bringing in Office Memorandum dated 12.03.2002.
42. The petitioners are members of the Water Resources
Department and the PWD Department. Promotions in both these
Departments are governed by their own service Rules. In the said
service Rules, there is a provision which lays down the procedure
for promotion. As per the said procedure laid down, the
appointing authority is to determine the list of eligible candidates
as per the assessments made in terms of the Rules. Ordinarily the
Officers who are included in the zone of consideration are four (4)
time the number of the vacancies in the order of seniority. This is
a standard practice applicable in all most departments including
all the works department of the State. As such, the process for
promotion is governed by the service Rules and not by the Act of
1978 read with the Rules of 1983. Therefore, the procedure laid
down for promotion is provided in detail under the respective
Service Rules governing the service conditions of the employees
of the various departments. That apart, the Service Rules also
provides that the seniority of a member of a cadre shall be in the
order of merit as determined by the selection committee. Under
such circumstances, the claim of the petitioners that their rights
are infringed by virtue of consequential seniority not being
conferred upon promotion also cannot be accepted.
43. As such, it is reiterated that the Act of 1978 read with the
Rules of 1983 does not provide for any provision or criteria for
automatic or consequential seniority upon such promotion of
reserved category candidates under the reservation policy. The
Act of 1978 read with the Rules of 1983 merely brings in a law to
grant reservation in promotion in respect of reserved category
candidates. Any additional benefits of consequential seniority is
not provided for under the Act of 1978 read with the Rules of
1983. Such benefits have been brought or provided by the State
by issuance of such Notifications or Office Memorandums from
time to time.
44. A perusal of the Office Memorandum dated 12.06.1996
reveals that the benefit of consequential seniority on promotion
for reserved category candidates had been taken away pursuant
to the Judgment of the Apex Court rendered in Virpal Singh
Chauhan (Supra). The position which existed in the State prior to
the Office Memorandum dated 12.06.1996 is not available before
this Court. Even assuming that consequential seniority on
promotion of the reserved category candidates was granted by
the State or was in place prior to 12.06.1996, then such benefit
was either granted by any such Notification that may have been
brought in by the State or upon such interpretation as may have
been made by the State of the law as it existed then. However,
nothing has been pointed out to the Court that such a provision
existed in the Act as well as the Rules prior to 12.06.1996.
45. Under such circumstances, the contention of the learned
counsel for the petitioner that in the absence of anything to the
contrary, reservation and promotion to the reserved category
candidates would also automatically grant them the benefit of
consequential seniority cannot be accepted and the same is
therefore rejected.
46. The Office Memorandum dated 12.06.2002 having conferred
the benefit of consequential seniority in reservation or promotion
to reserved category candidates, was conferred by the State of
Assam and which continued till the Office Memorandum dated
03.08.2016 was brought in which sought to amend the benefits
granted under the Office Memorandum of 12.03.2002.
47. This Office Memorandum dated 03.08.2016 although was
considered to be bad in law by the Co-ordinate Bench in
Bhagawan Pator (Supra) in view of the fact that the earlier Office
Memorandum dated 12.03.2002 was still holding the field.
However, the Division Bench in Ivy Gohain Dasgupta (Supra)
overruled the views of the Co-ordinate Bench. Both the Co-
ordinate Bench as well as the Division Bench had categorically
held that the State Government was within its powers to grant or
not to grant the benefit of reservation in promotion along with
consequential seniority. Such view held by the Single Bench and
also by the Division Bench is the correct view as have been laid
down in law by the Apex Court in M. Nagaraj (Supra) and the
catena of the Judgments thereafter. The findings of the Division
Bench in Ivy Gohain Dasgupta (Supra) is not under appeal and
therefore the same has attained finality as on date.
48. The impugned Office Memorandum dated 18.01.2023 and
the context in which the earlier Office Memorandum dated
03.08.2016 was issued are largely operating in the same sphere.
The impugned Office Memorandum dated 18.01.2023 have also
been issued in supersession of the earlier Office Memorandums
dated 12.03.2002 and 03.08.2016.
49. Clause 4(A) of the Office Memorandum dated 18.01.2023
provides that Government servants in the reserved categories on
their accelerated promotion under the Rule or reservation shall
not be entitled to consequential seniority. The application of
general catch-up Rule will allow the eligible officers who were
senior in the merit list at the entry level in Group-A services to
regain their seniority in promotional post once they are promoted
to the same cadre as the Officer of the reserved category. The
said Clause 4A further provides similar benefits from Officers who
are promoted from Group-B to Group-A category. It also provides
during the process of promotion in the Group-A services in which
the stipulated percentage of the reserved category although is
met but in the zone of consideration there are candidates of
reserved category who on merit are entitled to the promotions,
their cases will be considered for promotion on merit, if such
candidates are not in the zone of consideration by way of
accelerated promotion earlier by virtue of the Rule or reservation.
50. The first part of Clause 4A is the policy of catch-up Rule
which as discussed before has been brought in by the State
superseding the benefits of consequential seniority as was
brought in by the Office Memorandum dated 12.03.2002. The
superseding of the earlier Office Memorandum of 12.03.2002 and
the implementation of the policy of catch-up Rule over the
consequential seniority by itself cannot be held to be beyond the
powers of the State inasmuch as, as have been discussed above,
no such policy is discernable in the Act of 1978 read with the
Rules of 1983. That apart, the Single Bench in Bhagawan Pator
(Supra) as well as the Division Bench in Ivy Gohain Dasgupta
(Supra) had categorically held that the State Government is within
its powers to grant or not to grant consequential seniority in
promotions of reserved category candidates. This is more so in
view of the law laid down by the Apex Court in M Nagaraj (Supra)
where it was held Article 16 (4A) and Article 16 (4B) are enabling
provisions for the State to grant such benefits if the State so
desires.
51. In Sudhakar Baburao Nangure Vs. Noreshwar Raghunathrao
Shende and Ors., reported in (2020) 11 SCC 399, the Apex Court
was considering a challenge made by General Category
candidates to the promotion given to reserved category
candidates with consequential seniority. In the facts of the case,
Government Resolution dated 20.10.1997 provided that Officer
belonging to reserved category was to retain seniority in
promotional post. Subsequent Government Resolution dated
20.03.2003 confirmed that policy and also clarified that seniority
would be governed by regular date of promotion. The appellant
before the Apex Court, however, had failed to challenge the
appointment of the respondent to the next higher post as well as
the Government Resolution dated 20.03.2003 providing for
consequential seniority. It was in these circumstances that the
Apex Court held that the seniority list which was challenged fixing
the seniority of the respondent reserved category candidate
above the appellant belonging to the General category candidate
in the cadre of JDTP was justified. The Apex Court while
considering the issues had considered the important Judgments
and the earlier precedents in respect of the reservation in
promotion with consequential seniority. The Apex Court after
consideration of all the Judgments referred to in the said case
rejected the bill on the ground that the appellant had failed to
challenge the appointment of the first respondent to the next
higher post as well as a challenge to the circular dated
20.03.2003 providing for consequential seniority. It was held by
the Apex Court that in the earlier round of litigation, the Apex
Court have given liberty to the parties to pursue the matter
regarding the applicability of catch up Rule before the High Court
in the first instance and then before the Supreme Court if the
appellant was still aggrieved. However, in the facts of the case,
the Apex Court held that the challenge that has been raised
before the Apex Court has been developed before this Court
without any basis in the pleadings and in that context declined to
entertain the appeals. However, the Apex Court while examining
the matter had referred to the relevant case laws and the earlier
precedents of the Apex Court on the aspect of reservation in
promotion with consequential seniority. It is relevant to refer to
those discussions of the Apex Court in the said Judgment and for
the said purpose, the following paragraphs are extracted:
"36. A line of cases before this Court considered the effect of an
accelerated promotion granted to a member of a Scheduled Caste or
Scheduled Tribe in terms of consequential seniority in a higher post.
More specifically, the vexed issue was whether a member of such a
caste and tribe who obtains promotion earlier than a senior
belonging to the general or open category in the feeder cadre would
retain that seniority on the latter being promoted to a higher post.
37. In Union of India v. Virpal Singh Chauhan [Union of
India v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1]
("Virpal Singh Chauhan"), a two-Judge Bench of this Court held that
the State could provide that a candidate who had been promoted
earlier on the basis of reservation and on the application of the
roster would not be entitled to seniority over a senior belonging to
the general category in the feeder category. A senior belonging to
the general category who is promoted to a higher post subsequently
would regain seniority over the reserved candidate.
38. The decision in Virpal Singh Chauhan [Union of India v. Virpal
Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1] led to the
Constitution (Eighty-fifth Amendment) Act, 2001 with effect from 17-
6-1995. Clause (4-A), as amended, expanded the ambit of the earlier
provision by enabling the State to also provide for consequential
seniority, while making the provision for reservation in matters of
promotion. Clause (4-A) of Article 16, in its present form, reads thus:
"16. (4-A) Nothing in this article shall prevent the State from
making any provision for reservation in matters of promotion, with
consequential seniority, to any class or classes of posts in the
services under the State in favour of the Scheduled Castes and the
Scheduled Tribes which, in the opinion of the State, are not
adequately represented in the services under the State."
39. The principle which has been enunciated in Virpal Singh
Chauhan [Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 :
1996 SCC (L&S) 1] has come to be known as the "catch-up" rule.
In Ajit Singh Januja v. State of Punjab [Ajit Singh Januja v. State of
Punjab, (1996) 2 SCC 715 : 1996 SCC (L&S) 540] ["Ajit Singh (1)"], a
three-Judge Bench of this Court adopted the catch-up rule
propounded in Virpal Singh Chauhan [Union of India v. Virpal Singh
Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1] . This Court held
that a balance has to be maintained so as to avoid reverse
discrimination and a rule or circular which gives seniority to a
candidate belonging to the reserved category promoted on the basis
of the roster point would violate Articles 14 and 16 of the
Constitution.
40. A contrary view was taken by another three-Judge Bench
in Jagdish Lal v. State of Haryana [Jagdish Lal v. State of Haryana,
(1997) 6 SCC 538 : 1997 SCC (L&S) 1550] ("Jagdish Lal") to the
effect that by virtue of the principle of continuous officiation, a
candidate belonging to the reserved category who is promoted
earlier than a general candidate due to an accelerated promotion
would not lose seniority in the higher cadre. This conflict of decisions
was resolved by a Constitution Bench in Ajit Singh (2) v. State of
Punjab [Ajit Singh (2) v. State of Punjab, (1999) 7 SCC 209 : 1999
SCC (L&S) 1239] ["Ajit Singh (2)"]. The Constitution Bench upheld
the principle laid down in Virpal Singh Chauhan [Union of
India v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1]
and Ajit Singh (1) [Ajit Singh Januja v. State of Punjab, (1996) 2 SCC
715 : 1996 SCC (L&S) 540] and disapproved of the decision
in Jagdish Lal [Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 :
1997 SCC (L&S) 1550] . This Court held thus : [Ajit Singh (2)
case [Ajit Singh (2) v. State of Punjab, (1999) 7 SCC 209 : 1999 SCC
(L&S) 1239] , SCC p. 246, para 77]
"77. We, therefore, hold that the roster-point promotees (reserved
category) cannot count their seniority in the promoted category from
the date of their continuous officiation in the promoted post, -- vis-à-
vis the general candidates who were senior to them in the lower
category and who were later promoted. On the other hand, the
senior general candidate at the lower level, if he reaches the
promotional level later but before the further promotion of the
reserved candidate -- he will have to be treated as senior, at the
promotional level, to the reserved candidate even if the reserved
candidate was earlier promoted to that level. We shall explain this
further under Point 3. We also hold that Virpal [Union of
India v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1]
and Ajit Singh [Ajit Singh Januja v. State of Punjab, (1996) 2 SCC
715 : 1996 SCC (L&S) 540] have been correctly decided and
that Jagdish Lal [Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 :
1997 SCC (L&S) 1550] is not correctly decided. Points 1 and 2 are
decided accordingly."
41. The constitutional validity of clauses (4-A) and (4-B) of Article 16
of the Constitution was dealt with in a decision of a Constitution
Bench of this Court in Nagaraj [M. Nagaraj v. Union of India, (2006)
8 SCC 212 : (2007) 1 SCC (L&S) 1013] . Nagaraj [M.
Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S)
1013] laid down that the catch-up rule and the concept of the
consequential seniority are essentially precepts of service
jurisprudence. They cannot, in the view of the Constitution Bench, be
elevated to the status of a component of the basic structure. These
precepts have been held to be practices as distinct from
constitutional principles. The consequence is that they do not lie
beyond the amending power of Parliament : neither the catch-up
rule nor consequential seniority are elements of clauses (1) or (4) of
Article 16. These have been held to be the principles evolved to
control the extent of reservation.
42. The validity of clauses (4-A) and (4-B) of Article 16 has been
upheld by the Constitution Bench in Nagaraj [M. Nagaraj v. Union of
India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] on the rationale
that "they retain the controlling factors or the compelling reasons,
namely, backwardness and inadequacy of representation which
enables the States to provide for reservation keeping in mind the
overall efficiency of the State administration under Article 335" [M.
Nagaraj v. Union of India, (2006) 8 SCC 212 at p. 278 : (2007) 1
SCC (L&S) 1013] . Nagaraj [M. Nagaraj v. Union of India, (2006) 8
SCC 212 : (2007) 1 SCC (L&S) 1013] held that the State must
demonstrate in each case the existence of compelling reasons,
namely, (i) backwardness; (ii) inadequacy of representation; and (iii)
overall administrative efficiency before providing for reservation.
Construing clauses (4-A) and (4-B) of Article 16 to be
enabling, Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 :
(2007) 1 SCC (L&S) 1013] holds that if the State wishes to exercise
its discretion under the enabling provisions, it must collect
quantifiable data showing backwardness of the class as well as
inadequacy of representation of that class in public employment in
addition to complying with the norm of efficiency embodied in Article
335. The Court held thus : (SCC p. 278, para 123)
"123. However, in this case, as stated above, the main issue
concerns the "extent of reservation". In this regard the State
concerned will have to show in each case the existence of the
compelling reasons, namely, backwardness, inadequacy of
representation and overall administrative efficiency before making
provision for reservation. As stated above, the impugned provision is
an enabling provision. The State is not bound to make reservation
for SCs/STs in matters of promotions. However, if they wish to
exercise their discretion and make such provision, the State has to
collect quantifiable data showing backwardness of the class and
inadequacy of representation of that class in public employment in
addition to compliance with Article 335. It is made clear that even if
the State has compelling reasons, as stated above, the State will
have to see that its reservation provision does not lead to
excessiveness so as to breach the ceiling limit of 50% or obliterate
the creamy layer or extend the reservation indefinitely."
43. In the recent decision of a Constitution Bench of this Court
in Jarnail Singh v. Lachhmi Narain Gupta [Jarnail Singh v. Lachhmi
Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] ("Jarnail
Singh"), Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 :
(2007) 1 SCC (L&S) 1013] has been followed save and except for the
dictum requiring the State to demonstrate backwardness as a
condition for the exercise of the enabling power in making
reservations in promotion for Scheduled Castes and Tribes. This part
of the judgment in Nagaraj [M. Nagaraj v. Union of India, (2006) 8
SCC 212 : (2007) 1 SCC (L&S) 1013] has been held to be
inconsistent with the nine-Judge Bench decision in Indra
Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 :
1992 SCC (L&S) Supp 1] . The Court in Jarnail Singh [Jarnail
Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC
(L&S) 86] held thus : (SCC p. 423, para 23)
"23. ... It is clear, therefore, that Nagaraj [M. Nagaraj v. Union of
India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] has, in
unmistakable terms, stated that the State has to collect quantifiable
data showing backwardness of the Scheduled Castes and the
Scheduled Tribes. We are afraid that this portion of the judgment is
directly contrary to the nine-Judge Bench in Indra Sawhney [Indra
Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S)
Supp 1] . Jeevan Reddy, J., speaking for himself and three other
learned Judges, had clearly held:
'[t]he test or requirement of social and educational backwardness
cannot be applied to the Scheduled Castes and Scheduled Tribes,
who indubitably fall within the expression "backward class of
citizens".'(See SCC p. 727, paras 796 to 797.)"
R.F. Nariman, J. speaking for the Constitution Bench held thus : (SCC
p. 424, para 24)
"24. ... Thus, it is clear that when Nagaraj [M. Nagaraj v. Union of
India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] required the
States to collect quantifiable data on backwardness, insofar as
Scheduled Castes and Scheduled Tribes are concerned, this would
clearly be contrary to Indra Sawhney [Indra Sawhney v. Union of
India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] and would
have to be declared to be bad on this ground."
44. The decision in Nagaraj [M. Nagaraj v. Union of India, (2006) 8
SCC 212 : (2007) 1 SCC (L&S) 1013] has been followed in several
subsequent decisions of this Court : (i) Suraj Bhan Meena v. State of
Rajasthan [Suraj Bhan Meena v. State of Rajasthan, (2011) 1 SCC
467 : (2011) 1 SCC (L&S) 1] ("Suraj Bhan Meena"); (ii) U.P. Power
Corpn. Ltd. v. Rajesh Kumar [U.P. Power Corpn. Ltd. v. Rajesh
Kumar, (2012) 7 SCC 1 : (2012) 2 SCC (L&S) 289] ("U.P. Power
Corpn."); (iii) S. Panneer Selvam v. State of T.N. [S. Panneer
Selvam v. State of T.N., (2015) 10 SCC 292 : (2016) 1 SCC (L&S) 76]
("Panneer Selvam"); and (iv) B.K. Pavitra v. Union of India [B.K.
Pavitra v. Union of India, (2017) 4 SCC 620 : (2017) 2 SCC (L&S)
128] ("B.K. Pavitra").
45. In Suraj Bhan Meena [Suraj Bhan Meena v. State of Rajasthan,
(2011) 1 SCC 467 : (2011) 1 SCC (L&S) 1] the question which arose
for consideration before a two-Judge Bench of this Court was
formulated thus : (SCC p. 480, para 49)
"49. The primary question which we are called upon to answer in
these five special leave petitions is whether the amended provisions
of Article 16(4-A) of the Constitution intended that those belonging
to the Scheduled Caste and Scheduled Tribe communities, who had
been promoted against reserved quota, would also be entitled to
consequential seniority on account of such promotions, or would the
"catch-up" rule prevail."
Answering this question, this Court held thus : (SCC p. 484, para 66)
"66. The position after the decision in M. Nagaraj case [M.
Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S)
1013] is that reservation of posts in promotion is dependent on the
inadequacy of representation of members of the Scheduled Castes
and Scheduled Tribes and Backward Classes and subject to the
condition of ascertaining as to whether such reservation was at all
required."
The Court held that since no exercise was carried out by the State of
Rajasthan to acquire quantifiable data regarding the inadequacy of
representation of Scheduled Castes and Tribes in public services in
the State, the High Court was justified in quashing the notifications
providing for consequential seniority and promotion.
46. In Panneer Selvam [S. Panneer Selvam v. State of T.N., (2015)
10 SCC 292 : (2016) 1 SCC (L&S) 76] the issue before a two-Judge
Bench of this Court was thus : (SCC p. 298, para 1)
"1.1. (i) In the absence of policy decision taken by the State/rules
framed pursuant to the enabling provision of Article 16(4-A) of the
Constitution of India, whether a reserved category candidate
promoted on the basis of reservation earlier than his senior general
category candidate in the feeder category can claim consequential
seniority in the promotional post?"
Rule 12 of the sub-rules to the Tamil Nadu Highways and
Engineering Service provided as follows:
"12. Reservation of appointment.--The rule of reservation of
appointments (General Rule 22) shall apply to the appointment of
Assistant Divisional Engineers by direct recruitment and recruitment
by transfer separately and the appointment of Assistant Engineers by
direct recruitment."
Under Rule 12, reserved category Assistant and Junior Engineers had
secured promotion as Assistant Divisional Engineers earlier than their
counterparts belonging to the general category as a result of
accelerated promotion following the rule of reservation.
47. R. Banumathi, J. speaking for the two-Judge Bench held that
Rule 12 did not provide for consequential seniority to candidates
drawn from the reserved category who are granted accelerated
promotion and, in the absence of a specific provision or policy,
consequential seniority could not be granted : (Panneer Selvam
case [S. Panneer Selvam v. State of T.N., (2015) 10 SCC 292 : (2016)
1 SCC (L&S) 76] , SCC p. 308, para 26)
"26. The true legislative intent under Article 16(4-A) of the
Constitution is to enable the State to make provision or frame rules
giving consequential seniority for the accelerated promotion gained
based on the rule of reservation. Rule 12 evidently does not provide
for the consequential seniority for reserved category promotees at
any point of time. The consequential seniority for such reserved
category promotees can be fixed only if there is express provision for
such reserved category promotees in the State rules. In the absence
of any specific provision or policy decision taken by the State
Government for consequential seniority for reserved category
accelerated promotees, there is no question of automatic application
of Article 16(4-A) of the Constitution."
The Court noted that the appellants who belonged to the general
category were not questioning the accelerated promotion granted to
their counterparts from the reserved category by following the rule
of reservation but were only seeking the application of the catch-up
rule in the fixation of seniority in the promotional cadre. The Court
held that in the absence of any provision of consequential seniority in
the rules, the catch-up rule will prevail : (Panneer Selvam case [S.
Panneer Selvam v. State of T.N., (2015) 10 SCC 292 : (2016) 1 SCC
(L&S) 76] , SCC pp. 312-13, para 36)
"36. In the absence of any provision for consequential seniority in
the rules, the "catch-up rule" will be applicable and the roster-point
reserved category promotees cannot count their seniority in the
promoted category from the date of their promotion and the senior
general candidates if later reach the promotional level, general
candidates will regain their seniority. The Division Bench appears to
have proceeded [V. Vivekanandan v. S. Pannerselvam, 2011 SCC
OnLine Mad 2241 : (2012) 2 Mad LJ 346] on an erroneous footing
that Article 16(4-A) of the Constitution of India automatically gives
the consequential seniority in addition to accelerated promotion to
the roster-point promotees and the judgment of the Division Bench
cannot be sustained."
48. The decision in Panneer Selvam [S. Panneer Selvam v. State of
T.N., (2015) 10 SCC 292 : (2016) 1 SCC (L&S) 76] has since been
followed by a two-Judge Bench of this Court in B.K. Pavitra [B.K.
Pavitra v. Union of India, (2017) 4 SCC 620 : (2017) 2 SCC (L&S)
128] . A.K. Goel, J. speaking for the Bench held thus : (B.K. Pavitra
case [B.K. Pavitra v. Union of India, (2017) 4 SCC 620 : (2017) 2
SCC (L&S) 128] , SCC p. 641, para 29)
"29. It is clear from the above discussion in S. Panneer
Selvam v. State of T.N. [S. Panneer Selvam v. State of T.N., (2015)
10 SCC 292 : (2016) 1 SCC (L&S) 76] that exercise for determining
"inadequacy of representation", "backwardness" and "overall
efficiency", is a must for exercise of power under Article 16(4-A).
Mere fact that there is no proportionate representation in
promotional posts for the population of SCs and STs is not by itself
enough to grant consequential seniority to promotees who are
otherwise junior and thereby denying seniority to those who are
given promotion later on account of reservation policy. It is for the
State to place material on record that there was compelling necessity
for exercise of such power and decision of the State was based on
material including the study that overall efficiency is not
compromised. In the present case, no such exercise has been
undertaken. The High Court erroneously observed [M.
Nagaraj v. Union of India, 2010 SCC OnLine Kar 5407] that it was for
the petitioners to plead and prove that the overall efficiency was
adversely affected by giving consequential seniority to junior persons
who got promotion on account of reservation. Plea that persons
promoted at the same time were allowed to retain their seniority in
the lower cadre is untenable and ignores the fact that a senior
person may be promoted later and not at the same time on account
of roster point reservation. Depriving him of his seniority affects his
further chances of promotion. Further plea that seniority was not a
fundamental right is equally without any merit in the present context.
In absence of exercise under Article 16(4-A), it is the "catch-up" rule
which fully applies. It is not necessary to go into the question
whether the Corporation concerned had adopted the rule of
consequential seniority."
67. In Suraj Bhan Meena [Suraj Bhan Meena v. State of Rajasthan,
(2011) 1 SCC 467 : (2011) 1 SCC (L&S) 1] , the petitioners had
challenged a Notification dated 25-4-2008 issued by the State of
Rajasthan under the proviso to Article 309 of the Constitution,
amending the Rajasthan "Various Service Rules" with effect from 28-
12-2012. This was challenged on the ground that the deletion
amounted to giving consequential seniority to candidates belonging
to the Scheduled Castes and Tribes without carrying out the exercise
of collecting quantifiable data.
68. In U.P. Power Corpn. [U.P. Power Corpn. Ltd. v. Rajesh Kumar,
(2012) 7 SCC 1 : (2012) 2 SCC (L&S) 289] , there was a specific
challenge before the High Court of Judicature at Allahabad to the
validity of Rule 8-A of the U.P. Government Servants Seniority Rules,
2007. Section 3 of the Uttar Pradesh Public Services (Reservation for
Scheduled Castes, Scheduled Tribes and Other Backward Classes)
Act, 1994 and Rule 8-A of the 1991 Rules brought into force in 2007
were challenged as being ultra vires and unconstitutional. As a
consequence, the consequential orders relating to seniority were
impugned. Once again, the challenge was on the ground that the
exercise which was required in pursuance of the decision of this
Court in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 :
(2007) 1 SCC (L&S) 1013] had not been carried out.
69. In Panneer Selvam [S. Panneer Selvam v. State of T.N., (2015)
10 SCC 292 : (2016) 1 SCC (L&S) 76] , Rule 12 of the Special Rules
to Tamil Nadu Highways Engineering Service provided that the rule
of reservation of appointments (General Rule 22) shall apply to the
appointment of Assistant Divisional Engineers by direct recruitment
and by transfer of the appointment of Assistant Engineers. This Court
held that Rule 12 did not provide for consequential seniority and, in
the absence of a provision for consequential seniority catch-up rule
will be applicable. The litigation in Panneer Selvam [S. Panneer
Selvam v. State of T.N., (2015) 10 SCC 292 : (2016) 1 SCC (L&S) 76]
did not engage a situation such as the present where the GR dated
20-3-2003 specifically provides for consequential seniority.
70. The decision in B.K. Pavitra [B.K. Pavitra v. Union of India, (2017)
4 SCC 620 : (2017) 2 SCC (L&S) 128] involved a specific challenge to
the validity of the Karnataka Determination of Seniority of the
Government Servants promoted on the basis of Reservation (to the
posts in the Civil Services of the State) Act, 2002. The Act was struck
down by a two-Judge Bench of this Court on the ground that the
State had not undertaken an exercise to establish a "compelling
necessity" since no material had been placed by the State on record.
71. All these decisions (except the decision in Panneer Selvam [S.
Panneer Selvam v. State of T.N., (2015) 10 SCC 292 : (2016) 1 SCC
(L&S) 76] ) involved a specific challenge to the validity of
administrative notifications or, as the case may be, an Act of the
legislature. Panneer Selvam [S. Panneer Selvam v. State of T.N.,
(2015) 10 SCC 292 : (2016) 1 SCC (L&S) 76] was a case where in
the absence of a provision for consequential seniority, it was held
that the catch-up rule will prevail. In the present case, there is a
specific provision for consequential seniority in the GR dated 20-3-
2003. Absent a challenge to the GR in the proceedings which were
initiated before the Tribunal, such a challenge cannot be entertained
at this stage."
52. In view of the fact that the Judgments referred above have
also been referred to at the bar as such no further discussions is
necessary in respect of the Judgments referred to by the rival
counsel in support of their contentions in respect of the issue of
reservation on promotion with consequential seniority.
53. Therefore, the consistent views both by the Apex Court as
well as by a Division Bench of this Court having held that the
State is within its liberty to grant or not to grant the benefit of
consequential seniority during promotions of reserved category
candidates, the impugned Office Memorandum dated 18.01.2023
bringing in the policy of catch-up Rule and superseding the earlier
policy of consequential seniority cannot be held to be bad in law.
54. The subsequent part of Clause 4A whereby, it is provided
that where notwithstanding the reserved quota having been met
by the reserved category candidates, if there are suitable
candidates belonging to the reserved category in the zone of
consideration, then such candidates can be considered provided
these candidates did not gain the benefit of accelerated seniority
during their promotions by virtue of the Rule of reservation also
cannot be held to be incongruous. If the first part of Clause 4A is
held to be valid then the later part of Clause 4A which provides
for consideration of those reserved category candidates for
promotion if there otherwise within the zone of consideration and
they did not get the benefits of consequential seniority during
their promotion under the reservation policy is also required to be
consequentially held to be valid as it is a sequel to the policy of
the State Government of granting reservation and promotion but
without consequential seniority. No fault can be found with regard
to such policy being implemented by the State. The claim of the
petitioners that by the impugned notification, then vested right
have been sought to be taken away is also not made out and
therefore such claims are also rejected.
55. That apart the second part of Clause 4A is parameteria with
Clause 4 of the earlier Office Memorandum dated 03.08.2016 and
which provisions has already been upheld by the Division Bench
of this Court in Ivy Gohain Dasgupta (Supra). The Division Bench
had declined to interfere with the Clause 4 of the Office
Memorandum dated 03.08.2016. This Judgment of the Division
Bench has not been subsequently assailed and therefore, the
same has attained finality. Consequently, the findings of the
Division Bench in Ivy Gohain Dasgupta (Supra) are equally
binding on this Court.
56. In view of all the above discussions held, the writ petitions
fail, the prayers in the writ petitions are found to be devoid of
merit and therefore, the writ petitions are rejected. No order as to
cost.
57. Pending I.A.s are also disposed of.
JUDGE
Comparing Assistant
