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2005 DIGILAW 447 (GAU)

Raj Kumar Manta v. State of Assam

2005-06-09

RANJAN GOGOI

body2005
JUDGMENT Ranjan Gogoi, J. 1. The writ Petitioner, Sri Raj Kumar Manta, who belongs to the Lalung Community which is a recognized Scheduled Tribe (Plains) in the State of Assam, complains of non-consideration of his case for promotion to the post of Executive Engineer in the Electrical Wing of the Public Works Department of the State. The consideration, which the writ Petitioner seeks to enforce by means of the present writ application is contended to be one under the provisions of the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978 and the Rules framed there under (hereinafter referred to as the Reservation Act and the Rules). 2. The facts in brief maybe noticed at the outset. The Petitioner was initially appointed as an Assistant Engineer (Electrical) in the Public Works Department on 28.9.1989. On 3.7.1997 he was promoted to the post of Assistant Executive Engineer and in the gradation list of Officers in the rank of Assistant Executive Engineer, as published on 7.10.2002, the name of the Petitioner appeared at serial No. 14. The Petitioner, incidentally, is the only Officer belonging to the Scheduled Tribe (Plains) in the aforesaid gradation list. On 20.6.2003 a selection committee meeting was held for consideration of the cases of eligible officers for selection for promotion to the post of Executive Engineer. Six vacancies in all for the years 1996, 1997, 1998, 2002 and 2003 formed the subject matter of consideration of the Selection Committee. The Selection Committee in its deliberations considered the vacancies arising in each of the aforementioned years separately and prepared a year-wise select list of eligible candidates. Thereafter, the appointing authority by a common order dated 20.7.2003 appointed the Respondents No. 4 to 8 in the post of Executive Engineer (Electrical) on the basis of the recommendations of the Selection Committee pursuant to its meeting held on 20.6.2003. The name of the Petitioner did not figure in the list of candidates put up to the Selection Committee for consideration and consequently the instant writ application has been filed assailing the proceedings of the selection held on 20.6.2003 and the consequential promotion order of the Respondents No. 4 to 8 made on 18.7.2003. 3. The name of the Petitioner did not figure in the list of candidates put up to the Selection Committee for consideration and consequently the instant writ application has been filed assailing the proceedings of the selection held on 20.6.2003 and the consequential promotion order of the Respondents No. 4 to 8 made on 18.7.2003. 3. The writ petition, challenging the selections held on 20.6.2003 and the promotions made by order dated 18.7.2003 has been structured by claiming an entitlement in the Petitioner for due consideration against the posts that had fallen vacant since the year 1996. The aforesaid claim was made by the writ Petitioner on the basis that under the Rules in force the post of Assistant Engineer is a feeder post for promotion to the post of Executive Engineer and the Petitioner had the required length of service in the post of Assistant Engineer. At the hearing, it had transpired that the Assam Engineering (Public Works Department) Service Rules, 1978 (hereinafter referred to as the service Rules) was amended in the year 1986 providing for Anr. post in between the post of Assistant Engineer and Executive Engineer, i.e. the post of Assistant Executive Engineer. By the amendment made, the post of Assistant Engineer was made a feeder post for promotion to the aforesaid post of Assistant Executive Engineer and the post of Assistant Executive Engineer was, in turn, made a feeder post for promotion to the post of Executive Engineer. In view of the aforesaid amendment, learned Counsel for the Petitioner, at the hearing, has altered and limited his challenge to the post that had fallen vacant in the year 2002 and 2003, by which time the Petitioner had completed the required length of service in the post of Assistant Executive Engineer for promotion to the post of Executive Engineer. Consequently, it is the promotions of the Respondents No. 8 and 9 which has been challenged at the hearing, notwithstanding the pleadings made in the writ petition. It is the aforesaid truncated scope of the writ petition which will, therefore, require consideration in the present proceeding. 4. Sri D.K. Misra, learned senior counsel appearing for the writ Petitioner by placing reliance on a long list of decided cases starting with the decision of the Apex Court in the case of Union of India and Ors. v. Virpal Singh Chauhan and Ors. 4. Sri D.K. Misra, learned senior counsel appearing for the writ Petitioner by placing reliance on a long list of decided cases starting with the decision of the Apex Court in the case of Union of India and Ors. v. Virpal Singh Chauhan and Ors. reported in (1995) 6 SCC 684 and concluding with the judgment of the Apex Court in the case of Ajit Singh and Ors. v. State of Punjab and Ors. reported in (1999) 7 SCC 209 : 1999 (3) GLT (SC) 1 has submitted that reservation in promotion or what has popularly come to be known as accelerated promotion is a constitutional reality. In the State of Assam, it is the provisions of the Reservation Act and the Rules which provide for reservation in the matter of promotion to different posts in all departments and it is the provisions of the said Act and the Rules which have been violated by the Respondents in making the impugned promotions. Specifically, it is the provisions of Section 5 of the Reservation Act and the Schedule providing a 20 point roster as well as the provision of Rule 5 of the Reservation Rules which mandate the preparation of separate select lists for different classes of reserved category candidates, which have been pressed into service Learned Counsel for the Petitioner has argued that under the provisions of the Service Rules in force the list of candidates that is required to be forwarded to the Selection Committee for consideration for selection/promotion must necessarily be understood to be with reference to the eligibility as prescribed under the Service Rules and once a reserved category candidate, who is eligible, is available, regardless of his intor1 se seniority, vis-a-vis the general category candidates, his name must be forwarded to the selection Committee. This, Mr. Misra, learned Counsel for the Petitioner, contends, logically and reasonably follows from a conjoint reading of the provisions of Rules 12 and 13 of the service Rules as well as Rule 5 of the Reservation Rules. This, Mr. Misra, learned Counsel for the Petitioner, contends, logically and reasonably follows from a conjoint reading of the provisions of Rules 12 and 13 of the service Rules as well as Rule 5 of the Reservation Rules. The emphasis under the aforesaid Rules being with regard to eligibility, while forwarding the list of candidates to the Selection Committee, the practice adopted in the present case in determining its complexion i.e. on the basis of inter se seniority is not contemplated and the said practice adopted in the present case having resulted in a denial of the right of the Petitioner to a fair consideration of his case for promotion, the impugned selection and the consequential promotion of the Respondents must be interfered with by this Court. Arguing further, Sri Misra, learned Counsel for the Petitioner has contended that the case of the Petitioner was not forwarded to the Selection Committee on the ground that he did not come within the zone of consideration. The manner of formulation of the aforesaid zone of consideration being contrary to the Service Rules and there being consequential violation of the provisions of the Reservation Act and the Rules, the fundamental rights of the Petitioner under Article 14 and 16 of the Constitution has been impaired requiring appropriate interference of this Court, it is contended. 5. Controverting the submissions advanced on behalf of the Petitioner, Sri I. Choudhury, learned Counsel appearing for the Respondents, has argued that under the provisions of Rule 13(2) of the Service Rules, the appointing authority is required to forward to the Selection Committee/Board a list of Officers to the extent of four times the number of available vacancies and the said list is to be prepared in order of seniority amongst the Officers eligible or promotion which fact is made amply clear by the provisions contained in Rule 13(2)(b) of the Service Rules. Relying on the provisions contained in Rule 2(c) and Rule 5(1) of the Reservation Rules, Sri Choudhury, learned Counsel for the Respondents, has contended that reservation in promotions as provided by the Reservation Act and the Rules will have to be confined to such candidates whose names appear in the list of candidates submitted by the appointing authority to the selection board in accordance with the Service Rules in force. The list required to be forwarded by the appointing authority, therefore, will have to be prepared in accordance with Rule 13(2) of the Service Rules and the aforesaid provisions of the Rules have clearly laid down that the list is to be prepared on the basis of inter se merit of all eligible candidate. An eligible reserved category candidate can be included in the said list only if his inter se seniority permits such inclusion. In the present case, according to Sri Choudhury, learned Counsel for the Respondents, though there were six vacancies in all, which were considered by the selection board in its meeting dated 20.6.2003, as the said vacancies pertained to different calendar years, separate list of eligible candidates, in order of seniority, was forwarded by the appointing authority to the Selection Board for the vacancies in each year and thereafter selections were held for the each year and separate panels for every year were prepared by the Selection Board. This was mandated by the law in force and specifically by an order dated 4.1.2001 passed by this Court in W.P. (C) No. 4645/2001. The writ Petitioner being at serial No. 14 of the gradation list of Assistant Executive Engineers and the vacancies for each year which were considered by the Selection Board not having exceeded two (in most cases it was one vacancy for each year), the name of the Petitioner could not be included in the list forwarded by the appointing authority to the Selection Board. The aforesaid course of action, according to Sri Choudhury, learned Counsel for the Respondents, was in accordance with the provisions of the Service Rules read with the provisions of the Reservation Act and the Rules and, therefore, no apparent illegality or infirmity is disclosed in the selection process as well as the consequential promotions made. 6. The rival submissions advanced on behalf of the contesting parties have received the due and anxious consideration of the court. By the 77th constitutional Amendment enacted with effect from 17.6.1995 after the judgment of the Apex Court in Indra Sawhny's case AIR 1993 SC 477 the provisions of Article 16(4A) were introduced providing for reservation in promotions. Thereafter, by the 85th Amendment to the Constitution made in the year 2001, again with effect from 17.6.1995, seniority following accelerated promotion was also introduced by Article 16(4A) as amended by the aforesaid 85th amendment. Thereafter, by the 85th Amendment to the Constitution made in the year 2001, again with effect from 17.6.1995, seniority following accelerated promotion was also introduced by Article 16(4A) as amended by the aforesaid 85th amendment. In the present case the court, of course, will not be concerned with the consequential seniority following the accelerated promotion claimed by the Petitioner. Article 16(4) and 16(4A) has been understood by the Apex Court in the case of Ajit Singh (supra) (1999) 7 SCC 209 to be mere enabling provisions and in contradistinction to Article 16(4) not to be bestowing any fundamental right. In other words, Article 16(4) and 16(4A) of the Constitution merely enables the State to make laws to give the benefit of accelerated promotion and accelerated seniority and it does not confer on a citizen a right to have the benefit of accelerated promotion or accelerated seniority, as the case may be, which can be enforced by a Court by issuing a writ of mandamus. In the State of Assam it is the provisions of the Reservation Act and the Rules in force that has provided for reservation in promotional post to reserved category candidates. Therefore, the scope, ambit and extent of such reservation i.e. the pace of accelerated promotion has necessarily to be understood in the context of the provisions of the Reservation Act and the Rules read with the Service Rules. It is to the aforesaid consideration that the Court now must turn. 7. Under the provisions of Rule 2(c) of the Reservation rules, candidates belonging to Scheduled Castes and Scheduled Tribes eligible for consideration for accelerated promotion would be such candidates who come within the zone of consideration and whose names appear in the list of candidates forwarded by the department to the Selection Board in accordance with the relevant Service Rules. Rule 5 which appear to mandate a separate selection process for reserved category candidates including preparation of separate select list for such candidates, opens with the provisions contained in Sub-rule (1) which requires consideration by the selection Committee/Board, the cases of such candidates whose names have been forwarded in accordance with the provisions of the Service Rules. Rule 5 which appear to mandate a separate selection process for reserved category candidates including preparation of separate select list for such candidates, opens with the provisions contained in Sub-rule (1) which requires consideration by the selection Committee/Board, the cases of such candidates whose names have been forwarded in accordance with the provisions of the Service Rules. The provisions contained in the later Sub-rules of Rule 5 with regard to preparation of separate select lists for reserved category candidates, naturally, has to be understood to be subject to the first requirement contained in Sub-rule (1) of Rule 5 i.e. that a reserved category candidate is included in the list of candidates which is to be forwarded to the Selection Board in accordance with the Service Rules. Turning to the relevant provisions of the service Rules what this Court finds is that while Rule 12 prescribes the eligibility, Rule 13(2) restricts die size of the list of candidates to four times the number of vacancies and in determining the said size i.e. in preparing the list of candidates to be forwarded, what is required to be done by the appointing authority is to draw up the list in order of seniority subject to eligibility of the candidates. An eligible candidate cannot insist on the inclusion of his name in the list to be forwarded to the Selection Board merely by virtue of his eligibility if, otherwise, his name cannot be included in terms of his inter se seniority. There is no provision in the Service Rules providing for forwarding a separate list of eligible candidates belonging to all or any of the reserved category candidates. The position that, therefore, emerges from a consideration of Rules 12 and 13 of the Service Rules in force is that all candidates whose cases are to be considered by the Selection Board must come within the zone of consideration in terms of their seniority and eligibility and not mere eligibility. Thereafter, promotions are to be made from the select list prepared and in the event a reserved category candidate finds his name included in the select list and a reserved post is available, such reserved category candidate has to be given the promotion against the reserved post in preference to the general category candidates who may be placed higher in the select list. The aforesaid is the scope, extent and ambit of reservation in promotional posts or the pace of accelerated promotions that is contemplated by the service Rules and the Reservation Act and the Rules as in force. Reservation is essentially a matter of Government policy and the scope and extent of such reservation has to be determined by the state. What Article 16(4A) provides is that in case the State adopts a policy for providing reservation in promotions and makes provisions in that regard, the same would be constitutionally permissible and withstand the test of reasonable classification. 8. The service Rules in force not having provided for sending the name of a reserved category candidate on the basis of his mere eligibility and the said provisions having rather contemplated that the list of names to be sent is to be drawn up on the basis of inter se seniority, the pace of accelerated promotion adopted by the department in the present case must be understood to be in conformity with the provisions of the service Rules read with the Reservation Act and the Rules. The claim made by the Petitioner that being the only eligible candidate his name ought to have been sent to the Selection Board dehors his inter se seniority, vis-a-vis the general category candidates, therefore, cannot be accepted by the Court. The inevitable conclusion that has to be reached on the aforesaid facts is that there is no discernible illegality or infirmity in the selection held and the consequential promotions made. 9. For the aforesaid reasons, I do not find any illegality or infirmity in the selection held and the consequential promotions made which would require interference of the Court. Consequently, this writ petition has to be held to be without merit or substance. It is accordingly dismissed. However, having regard to the facts and circumstances of the case, there shall be no order as to cost. Petition dismissed.