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Gauhati High Court · body

2005 DIGILAW 574 (GAU)

Bengia Mack v. Union of India

2005-08-09

BIPLAB KUMAR SHARMA

body2005
JUDGMENT B.K. Sharma, J. 1. The basic challenge made in the writ petition is in respect of an amendment brought to the Recruitment Rules in question providing percentage of quota of reservation in respect of two groups in the feeder grade. 2. The facts are not disputed. The Petitioners numbering 38 are all working as Supervisors under the Respondents. Their next promotional avenue is to the post of Child Development Project Officer (CDPO). The Recruitment Rules with which the present proceeding concerned is called Child Development Project Officer (Group B Post) Recruitment Rules, 1995. As per the Recruitment Rules, the post of CDPO is to be filled up 50% by direct recruitment and remaining 50% by promotion from amongst the officers of feeder group such as Supervisor, Statistical Assistant, etc. By the impugned amendment brought by the Annexure-D, notification dated 9.1.2004, as against 50% of promotional quota, 70% has been reserved for the Supervisors and the remaining 30% for the Statistical Assistants. For both the categories minimum eight years of regular service in the substantive grade has been prescribed which before the amendment was seven years for both the categories. The Petitioners who are working in the substantive grade of Supervisor are aggrieved by the prescription of quotas, i.e. 70% and 30% against 50% of promotion quota for the Supervisors and the Statistical Assistants, respectively. According to them, this prescription of 30% quota for the Statistical Assistants will tell upon their promotion prospects. 3. On an earlier occasion, the Petitioners had approached this Court by filing a writ petition being W.P. (C) No. 407 (AP) of 2004 which was disposed of by order dated 16.12.2004 providing disposal of the representation submitted by the Petitioners before the authority making grievance against the aforesaid amendment brought to the Recruitment Rules. 4. Pursuant to the aforesaid direction of this Court, the Government of Arunachal Pradesh in the department of Social Welfare has disposed of the representation by upholding the amendment brought to the Recruitment Rules. It appears that the amendment was brought to the Recruitment Rules providing quota of reservation for the Statistical Assistants of the non-ministerial cadre on the basis of the representations made by them. 5. It appears that the amendment was brought to the Recruitment Rules providing quota of reservation for the Statistical Assistants of the non-ministerial cadre on the basis of the representations made by them. 5. The Petitioners case is that there was no necessity to prescribe separate quota of reservation for the cadre of Statistical Assistants which according to them has taken away a major chunk of the posts seriously affecting the chances of promotion of the Supervisors. Hence the prayer made by the Petitioners is to set aside and quash the Annexure-D, notification dated 9.1.2004, bringing the amendment to the Recruitment Rules and so also the order dated 15.1.2005 (Annexure-H to the writ petition) which was passed pursuant to the direction of this Court. 6. The official Respondents as well as the private Respondents have filed their counter affidavits justifying the amendment brought to the Recruitment Rules. They have justified the quota of reservation for the Statistical Assistants which according to them is to augment the chances of promotion of the Statistical Assistants. 7. The private Respondents in their affidavit apart from supporting the impugned notification and the aforementioned order have also questioned locus standi of the Petitioners to file the writ petition. Referring to the seniority positions of the Petitioners in the gradation list of supervisors, the private Respondents have contended that the Supervisors whose seniority positions are much above them have not approached this Court and have accepted the amendment. According to them, when the Petitioners are by far juniors to those Supervisors who have not approached this Court, they have no locus standi to file the writ petition, there being remote chance of their promotion. 8. Another aspect of the matter as projected in the writ petition is that as per the guidelines formulated by the Central Government, the promotional posts of CDPOs are required to be reserved for the female candidates. The Respondents in their counter affidavit have stated about the difficulties in providing 100% reservation for female candidates. According to them, having regard to hilly terrains of Arunachal Pradesh and the difficulties being faced by the female candidates to go to the rural areas, no option was left for the State Government to provide 100% reservation for the female candidates. It is their pleaded case that normally the female candidates are reluctant to go to the rural areas and also to the areas which are inaccessible. It is their pleaded case that normally the female candidates are reluctant to go to the rural areas and also to the areas which are inaccessible. This plea of the Petitioners was not seriously pressed during the course of the hearing. 9. Mr. T. Michi, learned Counsel for the Petitioners, strenuously argued that the earlier practice of providing promotion to the Supervisors and the Statistical Assistants on the basis of their seniority positions was to the satisfaction of all concerned. According to him, there was no necessity to provide 30% reservation out of the 50% quota of promotion to the Statistical Assistant. Referring to the seniority lists of Supervisors and the Statistical Assistants, he submitted that but for the quota of reservation provided for the Statistical Assistants, the Petitioners, who are much senior to them, would have got accelerated promotion. According to him, the impugned amendment has adversely affected the chance of promotion of the Petitioners. 10. Mr. B.L. Singh, learned Senior GA, Arunachal Pradesh, appearing for the Respondents referring to the plea taken in the counter affidavit submitted that there was nothing wrong in providing the quota of reservation for the Statistical Assistants. He submitted that even after the impugned amendment, the Petitioners will get the major chunk of the promotion quota. As regards the plea for 100% reservation of promotional posts of CDPO for female candidates, he pointed out that in practical reality the services of the male candidates in the field are indispensable. 11. Mr. J. Hussain, learned Counsel appearing for the private Respondents, adopted the arguments of Mr. B.L. Singh, learned Sr. GA, Arunachal Pradesh and supported the impugned amendment and submitted that without the amendment providing the quota of reservation for the Statistical Assistants, going by the seniority positions of the Statistical Assistants, vis-a-vis, the Supervisors, on the basis of their respective dates of appointment, the Statistical Assistants would never earn any promotion and they will have to stagnate without any promotion. 12. Mr. A. Mannan, learned Sr. CGSC, on the other hand, submitted that if the State Government in their wisdom has provide the quota of reservation for the two groups in the field, no fault can be attributed to the State Government. 12. Mr. A. Mannan, learned Sr. CGSC, on the other hand, submitted that if the State Government in their wisdom has provide the quota of reservation for the two groups in the field, no fault can be attributed to the State Government. As regards the plea of the Petitioners that there should be 100% reservation in the post of CDPO for the female candidates as per the Central Government guidelines, he submitted that the guidelines have been formulated for the guidance of the State Government, but having regard to the peculiar facts and circumstances and the difficulties being faced by the State Government, it was within their jurisdiction and competence to make their own justification. 13. I have given my anxious consideration to the submissions made by the learned Counsel for the parties and the materials on records. As pointed out above, the plea relating to 100% reservation for the female candidates was not seriously argued by the learned Counsel for the parties. In fact, there is no challenge to the aforesaid Recruitment Rules of 1995, which provides consideration of the cases of the incumbents belonging to both the groups comprising the small percentage of male candidates. The Petitioners by now have recognized the existence of male candidates in the substantive grades who are eligible for promotion as CDP Os. Further, the explanation furnished by the State Respondents in their counter affidavit as to why it is not feasible to provide 100% reservation for female candidates is plausible one and cannot be said to be arbitrary. After all, practical reality in a particular field or sphere will have to be taken into consideration. 14. I now proceed to consider the basic issue/plea raised in this writ petition which is as to whether the impugned notification dated 9.1.2004 bringing the amendment to the Recruitment Rules, 1995, by which the 50% quota of promotion for the Supervisors and Statistical Assistants has been divided to 70% and 30%, respectively. 15. The Petitioners have annexed the seniority list of Supervisors and the Statistical Assistants. It appears that there are Supervisors of 1988 batch followed by 1989, 1990, 1992 and so on. On the other hand, the seniority list of Statistical Assistants indicates that the Statistical Assistants came to the cadre from December, 1992 onwards. 15. The Petitioners have annexed the seniority list of Supervisors and the Statistical Assistants. It appears that there are Supervisors of 1988 batch followed by 1989, 1990, 1992 and so on. On the other hand, the seniority list of Statistical Assistants indicates that the Statistical Assistants came to the cadre from December, 1992 onwards. Thus as per the earlier practice being followed in the department, whenever promotion vacancy of CDPO had occurred, it was the incumbents in the cadre of Supervisors who had the advantage going by their seniority on the basis of their dates of entry in the cadre of Supervisors. Mr. Michi, learned Counsel for the Petitioners, fairly admitted that on earlier occasions promotions were effected on the basis of combined seniority positions of both the grades, i.e., Supervisors and the Statistical Assistants. If that be so, the Supervisors those who had entered the cadre prior to the Statistical Assistants could score a march over them, naturally obliterating the chances of promotion of the Statistical Assistants. 16. It is in the aforesaid background, the Statistical Assistants demanded quota of promotion for them. The Government in consideration of their genuine grievance brought the impugned amendment providing 30% quota for them. There is no dispute that both the groups, i.e., Supervisors and the Statistical Assistants comprised of two different cadres. However, for the purpose of promotion to the post of CDPO, the incumbent in both the cadres are considered. As per the earlier practice it is always the Supervisors who had scored march over them in view of their seniority positions having entered the cadre of Supervisors at earlier point of time than the Statistical Assistants. In such a situation, there was nothing wrong with the Government to provide 30% quota of reservation for the Statistical Assistants. Even after the amendments, it is the Supervisors who get the major chunk of the promotional quota of 50%. Therefore, it can not be said that their chance of promotion has altogether been obliterate by the impugned notification. 17. While disposing of the representation submitted by the Petitioners, the Government of Arunachal Pradesh in the department of Social Welfare has dealt with the issue in details by the impugned order dated 15.1.2005 (Annexure-H to the writ petition). They have stated as to how to avoid stagnation in the promotional avenue for the Statistical Assistants, the amendment had to be brought. They have stated as to how to avoid stagnation in the promotional avenue for the Statistical Assistants, the amendment had to be brought. They have also stated that the quota prescribed for the Statistical Assistants has facilitated removal of stagnation for the Statistical Assistants. Apart from the fact that the Government is within its jurisdiction and competence to provide promotional quota for a particular cadre, it is also the policy decision of the State Government which can hardly be interfered with in absence of any allegations of mala fide and arbitrary exercise of power. 18. In the above context, I may gainfully refer to the decision of the Apex Court as reported in Union of India and other v. S.L. Dutta and another, AIR 1991 SC 363 . In this case, the Apex Court dealing with the judgment of the Gauhati High Court in respect of somewhat a similar plea as in the instant case, held that when the right or eligibility to be considered for promotion still remained for the incumbent in question, change of policy affecting the chances of promotion cannot give rise to any cause of action. As in the instant case, in that case also by a particular policy decision of the Union Government laying down the new promotional policy was challenged by filing a writ petition before this Court. Plea of the writ Petitioners was accepted against which the Union Government approached in Apex Court. The Apex Court on scrutiny of the materials found that although there was some effect on the chance of promotion, the same was not by way of altogether obliterating the promotion. In such circumstances, the plea of the Union Government was accepted holding that the High Court was in error in accepting the plea of the writ Petitioner. The Apex Court also pointed out that the Court should rarely interfere where the question of validity of a particular policy is in question and all the more so where considerable material in the fixing of policy are of a highly technical or scientific nature. 19. In the instant case, without going into the question of policy decision of the Government, suffice is to say that the Government was within its jurisdiction and competence to remove stagnation for the Statistical Assistants by providing separate quota of promotion for them against the promotional quota of both groups. 19. In the instant case, without going into the question of policy decision of the Government, suffice is to say that the Government was within its jurisdiction and competence to remove stagnation for the Statistical Assistants by providing separate quota of promotion for them against the promotional quota of both groups. While doing so, the major chunk of the promotional quota has been retained for the Supervisors. As such, the amendments to the Recruitment Rules have not obliterated the chances of promotion of the Petitioners. In such a situation, I am of the considered opinion that the plea of the Petitioners cannot be accepted. 20. The writ petition having been answered in the above manner, there is hardly any necessity to deal with the plea that the Petitioners have no locus standi to approach this Court having regard to their seniority positions in the seniority list. Suffice is to say, that such plea is not tenable when the Petitioners have approached this Court alleging adverse effect of their service career by way of reduction in chance of their promotion. Merely because their seniors are not before this Court, it cannot be said that the Petitioners are debarred from approaching this Court. 21. For the foregoing reasons and discussions, I do not find any merit in the writ petition and accordingly it is dismissed. However, there shall be no order as to costs. Petition dismissed.