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2013 DIGILAW 450 (GAU)

Birendra Narayan Thakuria v. State of Assam

2013-06-28

A.K.GOEL, A.K.GOSWAMI

body2013
JUDGMENT A.K. Goswami, J. 1. These three writ appeals have been preferred against the common Judgment & Order dated 18.01.2011. Writ Appeal No. 256 of 2011 arises from W.P. (C) No. 1897 of 2009 and W.P. (C) No. 4790 of 2009, and was filed by Sri Birendra Narayan Thakuria, who was the Writ Petitioner in the aforesaid Writ Petitions. Writ Appeal No. 39 of 2011 arises from W.P. (C) No. 3773 of 2010 and W.P. (C) No. 4137 of 2010 and was filed by Sri Pabitra Hazarika, who was respondent No. 5 in the said writ petitions. Writ Appeal No. 115 of 2011 also arises from W.P. (C) No. 3773 of 2010 and W.P. (C) No. 4137 of 2010 and was filed by Ajit Kumar Baruah, who was Respondent No. 4 in the said two writ petitions. W.P. (C) No. 3773 of 2010 and W.P. (C) No. 4137 of 2010 were allowed by setting aside and quashing the recommendation of the Selection Committee dated 20.05.2010 so far as it relates to Ajit Kumar Baruah and Pabitra Hazarika as reserved category candidates (SC). W.P. (C) No. 1897 of 2009 and W.P. (C) No. 4790 of 2009 were dismissed. In W.P. (C) No. 1897 of 2009, the subject matter of challenge was an Office Memorandum dated 12.03.2002. Challenge was also made to the provisional Gradation List in the cadre of Executive Engineer (Civil) dated 06.09.2008. In W.P. (C) No. 4790 of 2009, the petitioner had challenged, amongst others, the fixation of seniority of Pabitra Hazarika (Respondent No. 4 therein) above him in the cadre of Executive Engineer (Civil) in the final Gradation List dated 25.05.2009 as also promotional order dated 27.10.2009 promoting the said Respondent No. 4 to the post of Superintendent Engineer. 2. A provisional Gradation List dated 19.05.2001 of the Assistant Executive Engineer (Civil) upto May, 2001 was published intimating that omission/commission, if any, in the said Gradation List be brought to the notice of the Department within 21 days from the date of issue of communication. In the said provisional Gradation List, the name of the Writ Petitioner/Appellant appeared at Sl. No. 54 and that of the Respondent No. 4 at Sl. No. 69. Thereafter, another provisional Gradation list of Assistant Executive Engineer was published on 17.08.2002. 3. In the said provisional Gradation List, the name of the Writ Petitioner/Appellant appeared at Sl. No. 54 and that of the Respondent No. 4 at Sl. No. 69. Thereafter, another provisional Gradation list of Assistant Executive Engineer was published on 17.08.2002. 3. On 12.03.2002, on the subject of fixation of seniority on reserved category vis--vis general candidates in promotional post, an Office Memorandum was issued. The said Office Memorandum was issued consequent upon amendment of Article 16(4-A) of the Constitution of India by the Constitution (85th) Amendment Act, 2001. By the said Memorandum, amongst others, it was decided that Scheduled Caste/Scheduled Tribe Government Servants, shall, on their promotion, by virtue of Rule of Reservation/Roster be entitled to consequential seniority and the said decision shall be effective from 17.06.1995. In terms of the said Office Memorandum dated 12.03.2002, in supersession of the provisional Gradation List dated 19.05.2001, provisional Gradation List of Assistant Executive Engineer (Civil) was published on 17.08.2002, intimating that omission/commission, if any, in the said Gradation List be brought to the notice of the Department within 21 days from the date of issue of communication. In the said Gradation List, name of Respondent No. 4 appeared at Sl. No. 35 while name of Writ Petitioner/Appellant finds place at Sl. No. 42. 4. On 06.09.2008, a provisional Gradation List in the cadre of Executive Engineer (Civil) of Water Resources Department for the year 2008 was published inviting objection, if any. In the said list, the name of the Writ Petitioner/Appellant appeared at Sl. No. 30 while that of Respondent No. 4 appeared at Sl. No. 23. It would appear from the provisional Gradation List dated 06.09.2008 that Flood Control Department was subsequently renamed as Water Resources Department. On 25.05.2009, the provisional Gradation List dated 06.09.2008 in the cadre of Executive Engineer (Civil) was made final and the name of Writ Petitioner/Appellant and the Respondent No. 4 figured there in their respective positions as were shown in the provisional Gradation List. On 27.10.2009, the Respondent No. 4 along with some other officers were promoted temporarily as Superintending Engineer (Civil). On 27.10.2009, the Respondent No. 4 alongwith some others were promoted temporarily as Superintending Engineer (Civil). 5. Having set out the factual matrix involving the above 2 (two) writ petitions, we shall proceed to decide Writ Appeal No. 256 of 2011. 6. Mr. On 27.10.2009, the Respondent No. 4 alongwith some others were promoted temporarily as Superintending Engineer (Civil). 5. Having set out the factual matrix involving the above 2 (two) writ petitions, we shall proceed to decide Writ Appeal No. 256 of 2011. 6. Mr. D.K. Das, learned counsel appearing for the appellant in Writ Appeal No. 256 of 2011 submits that Article 16(4-A) of the Constitution is only an enabling provision and in absence of any specific statutory provision, respondent No. 4 could not have been given a consequential seniority above him on the strength of accelerated promotion and accordingly, he could not have been legitimately promoted to the rank of Superintending Engineer. The learned counsel submits that a Circular is not a law within the meaning of Article 13 of the Constitution of India. 7. Mr. A.K. Bhattacharyya, learned senior counsel for the respondent No. 4 submits that no representation was filed by the appellant against the provisional Gradation List published on 17.08.2002 and the provisional Gradation List dated 06.09.2008 and as such the settled position of seniority ought not to be disturbed at this distance of time. The appellant has also not demanded justice, which is a pre-condition for seeking a Writ of Mandamus, by filing a representation before the appropriate authority ventilating his grievances. Learned senior counsel refers to DE SMITH'S Judicial Review of Administrative Action and Halsbury's Laws of England, 4th Edition (Reissue) Vol. I(I) and relies on the following Judgments: (i) Saraswati Industrial Syndicate Ltd. & Ors. v. Union of India, reported in (1974) 2 SCC 630 , (ii) P. S. Sadasivaswamy v. State of Tamil Nadu, reported in (1975) 1 SCC 152 , (iii) State of Haryana & Anr. v. Chanan Mal & Ors., reported in (1977) 1 SCC 340 , (iv) Kamini Kumar Das Choudhury v. State of West Bengal & Ors., reported in (1972) 2 SCC 420 , (v) Amrit Lal Berry v. Collector of Central Excise, New Delhi & Ors., reported in (1975) 4 SCC 714 . He has also submitted that by way of issuing executive instructions in the form of Office Memorandum, the State can make provision for reservation in terms of Article 16(4-A) of the Constitution of India and in support of his aforesaid submission, he has cited the case of Indra Sawhney & Ors. v. Union of India, reported in (1992) Suppl. (3) SCC 217. 8. v. Union of India, reported in (1992) Suppl. (3) SCC 217. 8. In the Writ Appeal, copy of the W.P. (C) No. 4790 of 2009 is only enclosed along with affidavit filed by the State Respondents as well as on behalf of Respondent No. 4 in the Writ Petition. Pleadings in respect of W.P. (C) No. 1897 of 2009 is not enclosed. 9. Placing reliance on the affidavit filed, Mr. P Roy, learned Addl. Advocate General, Assam submits that the Writ Petitioner did not raise any objection with regard to provisional Gradation List dated 17.08.2002 as well as against the provisional Gradation List dated 06.09.2008 and therefore, the challenge made in the writ petition is without any merit 10. Mr. D.K. Das, learned counsel for the appellant/petitioner, in reply, has submitted that though it is correct that no representation was filed against the provisional Gradation list dated 17.08.2002, the petitioner had submitted a representation on 27.02.2009 against the provisional Gradation List dated 06.09.2008. 11. In view of the settled law, it requires no restatement at the hands of this Court that any petitioner who applies for a Writ or Order in the nature of Mandamus should, in compliance with a well known rule of practice would ordinarily, first call upon the authority concerned to discharge its legal obligation and show that it has refused or neglected to carry it out within a reasonable time before applying to a Court for such an order even where the alleged obligation is established. So far as W.P. (C) No. 4790 of 2009 is concerned, it appears that no demand was made by the petitioner before approaching this Court. From the copy of the writ petition of W.P. (C) No. 1897 of 2009 placed before the Court by the learned counsel for the appellant at the time of hearing, it appears that a representation was filed by the petitioner on 27.02.2009 ventilating his grievances. Both the Writ Petitions substantially raise the same issue and therefore, we are not inclined to dismiss W.P. (C) No. 4790 of 2009 on the ground that petitioner had not demanded justice before approaching this Court. 12. Materials on record discloses that the respondent No. 4 was promoted as Executive Engineer (Civil) by an order dated 19.12.2005 and the petitioner was promoted to the said post on 30.11.2006. 12. Materials on record discloses that the respondent No. 4 was promoted as Executive Engineer (Civil) by an order dated 19.12.2005 and the petitioner was promoted to the said post on 30.11.2006. It also appears from the materials on record that both the petitioner and the respondent No. 4 were promoted on the basis of selection made by two different Selection Boards. On what date the provisional Gradation List of the Assistant Executive Engineer (Civil) was made final is not available on the record of the cases. However, there is no dispute that the writ petitioner did not make any challenge to the Gradation List/provisional Gradation List in the cadre of Assistant Executive Engineer (Civil) and promotions were effected to the post of Executive Engineer (Civil) without a challenge being laid to such List(s). The Office Memorandum dated 12.03.2002 provided that Scheduled Caste/Scheduled Tribe Government Servant shall, on their promotion, by virtue of rule of reservation/roster be entitled to consequential seniority also w.e.f. 17.06.1995. The provisional Gradation List in the cadre of Executive Engineer (Civil) was published on 06.09.2008 and made final on 25.05.2009. On own showing of the writ petitioner, objection was raised to the provisional Gradation List dated 06.09.2008 in the cadre of Executive Engineer (Civil) beyond the period of 21 days fixed for filing objections. 13. In P.S. Sadasivaswamy (Supra), the Apex Court had laid down as follows: 2........................A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion: It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters.................... 14. 14. In Amrit Lal Berry (supra), it was held that if the petitioner has been so remiss or negligent as to approach the Court for relief after an inordinate and unexplained delay, he certainly jeopardizes his claims as it may become inequitable, with circumstances altered by lapse of time and other facts, to enforce his rights. In Kamini Kumar (supra), the Apex Court upheld the order of the Division Bench of Calcutta High Court refusing to exercise the discretion to interfere with the order of dismissal of the appellant on the ground of delay of about two years in preferring the writ petition. 15. In view of the above, we are of the considered opinion that the writ petitioner is guilty of laches in approaching the court after an inordinate delay, in the year 2009. Although the writ petition was not dismissed on the ground of delay by the learned Single Judge, Writ Appellate Court can certainly refuse to go into the merits of the case when at a belated stage the appellant wants to unscramble a scrambled egg. Failure of the appellant to question the seniority assigned to the respondent No. 4 resulting in promotion of the respondent No. 4 to the post of Executive Engineer (Civil) prior in point of time had resulted in a settled position with regard to seniority of the appellant vis--vis the respondent No. 4 and now by filing the writ application in the year 2009 he wants to question the Gradation List of Executive Engineer (Civil), without at any point of time challenging the inter-se-seniority list in the cadre of Assistant Executive Engineer (Civil). 16. It is to be noted that seniority in the cadre of Assistant Executive Engineer (Civil) was based on the Office Memorandum dated 12.03.2002. In this particular case, as the appellant had not questioned the seniority of the respondent No. 4 in the feeder cadre of Assistant Executive Engineer (Civil), we are not inclined to consider the validity or otherwise of the Office Memorandum dated 12.03.2002 as promotions were effected to the post of Executive Engineer long back. 17. In view of the above, we find no merit in Writ Appeal No. 256 of 2011. 18. We will now deal with the facts of W.P. (C) No. 3773 of 2010 and W.P. (C) No. 4137 of 2010. 17. In view of the above, we find no merit in Writ Appeal No. 256 of 2011. 18. We will now deal with the facts of W.P. (C) No. 3773 of 2010 and W.P. (C) No. 4137 of 2010. On 20.05.2010 the Selection Board recommended Ajit Kumar Baruah and Pabitra Hazarika, for promotion to the post of Additional Chief Engineer along with others. Thereafter, by Notification dated 12.07.2010, in exercise of powers conferred under Rule 13 of the Assam Engineering (Water Resources Department) Service Rules, 1981, as amended, the recommendation of the Selection Board in the meeting dated 20.05.2010 was approved in respect of the officers named there, which included Ajit Kumar Baruah and Pabitra Hazarika for promotion to the rank of Additional Chief Engineer. In W.P. (C) No. 3773 of 2010, challenge was made by four writ petitioners to the recommendation of the Selection Board dated 20.05.2010 recommending the Ajit Kumar Baruah and Pabitra Hazarika, who are members of the Scheduled Caste, for promotion to the post of Additional Chief Engineer. W.P. (C) No. 4137 of 2010 was also filed by the writ petitioners of W.P. (C) No. 3773 of 2010. In the said writ petition, they had assailed Notification dated 12.07.2010 by which approval was granted to the recommendation for promotion to the rank of Additional Chief Engineer made by the Selection Board in its meeting dated 20.05.2010 so far as it relates to Ajit Kumar Baruah and Pabitra Hazarika. In both the writ petitions, Ajit Kumar Baruah and Pabitra Hazarika have been arrayed as respondent Nos. 4 and 5, respectively. 19. The admitted facts are that in the provisional Gradational list of Superintending Engineer (Civil) dated 11.02.2010, which was made final on 05.04.2010, the names of the writ petitioners appeared at Sl. Nos. 4, 5, 6 and 7 and that of respondent Nos. 4 and 5 at Sl. Nos. 14 and 15, respectively. In the cadre of Additional Chief Engineer, there were 7 posts and for Scheduled Caste, Scheduled Tribe (P) and Scheduled Tribe (H), reservation for direct recruitment as well as for promotion, is fixed at 7%, 10% and 5%, respectively. 20. 4, 5, 6 and 7 and that of respondent Nos. 4 and 5 at Sl. Nos. 14 and 15, respectively. In the cadre of Additional Chief Engineer, there were 7 posts and for Scheduled Caste, Scheduled Tribe (P) and Scheduled Tribe (H), reservation for direct recruitment as well as for promotion, is fixed at 7%, 10% and 5%, respectively. 20. The learned Single Judge accepted the contention of the petitioners that there being only 7 posts in the cadre of Additional Chief Engineer, having regard to the percentage of reservation, there was no question of making promotion of reserved category candidates on the basis of reservation. 21. Assam Engineering (Water Resources Department) Service Rules, 1991, as amended, provides that selection for promotion, in terms of Rule 13(4), shall be on the basis of merit with due regard to seniority in all cadres of posts. In the Selection Board meeting held on 20.05.2010, for 5 Nos. of vacancies in the post of Additional Chief Engineer, 15 Nos. of existing Superintending Engineers were considered. The Board also followed a principle laid down on 14.12.2001 relating to grading of ACRs for the purpose of promotion by which 4, 3, 2 and 1 marks were assigned for outstanding, very-good, good and average remarks, respectively, in the ACRs. Based on the marks obtained, officers were placed in Category-I, Category-II and Category-III. Those securing 18 and above were placed in Category-I; those securing marks from 11 to 18 were placed in Category-II and those who secured marks below 11 were placed in Category-III. Officers falling in Category-I is to get preference over Category-II and only the officers falling on Category-I and II are eligible for getting promotion. The inter-se-seniority of the officers in the same Category remains unchanged. 22. In paragraph 37, the learned Single Judge had discussed markings of the parties to the dispute on the basis of ACRs. Paragraph 37 is quoted herein below: 37. Admittedly as per the gradation list, the petitioners are senior to the private respondents. The four petitioners have secured 14, 12, 13 and 15 marks respectively while the respondent No. 4 and 5 have secured 15 and 11 marks respectively. As per the aforesaid categorization and classification on the basis of the said marks obtained by the each one of the candidates, they are to be placed in category - II (securing marks 11 and below 18). As per the aforesaid categorization and classification on the basis of the said marks obtained by the each one of the candidates, they are to be placed in category - II (securing marks 11 and below 18). Barring one out of 15 candidates under consideration all of them secured marks in between 11 to 15 and consequently they were placed in category II. However, having regard to the decision of the selection Board to recommend only 10 candidates, such recommendation was made confining to 10 candidates on the basis of the marks obtained by them. Thus, irrespective of the marks obtained by the recommended candidates, all of them being in category - II promotion will have to be effected on the basis of the seniority position in the feeder cadre. This aspect of the matter finds mention in the minutes of the selection as follows; As the selection is for 5 Nos. of vacancies in the rank of Additional Chief Engineer (C) Water Resources, hence the double the name of Candidates are to be selected as per Rule 13(5) of the service Rules. The inter-re-seniority within the category will remain unchanged irrespective of the marks obtained by them as all the officers are listed under Category-II 23. The respondent Nos. 4 and 5 were at Sl. Nos. 14 and 15 of the list of Superintending Engineers considered by the Selection Board. While recommending 10 candidates as required by Rule 13(5) of the Rules for 5 Nos. of vacancies, the respondent Nos. 4 and 5 were also recommended by placing them at Sl. Nos. 9 and 10 as the Selection Board decided to fill-up 2 backlog vacancies of Scheduled Caste candidates who were the only reserved category candidates available within the zone of consideration. Thus, it is apparent that the name of the respondent Nos. 4 and 5 were recommended only because they belong to reserved category. In paragraphs 39 and 40, the learned Single Judge held as follows: 39. Thus, it is apparent that the name of the respondent Nos. 4 and 5 were recommended only because they belong to reserved category. In paragraphs 39 and 40, the learned Single Judge held as follows: 39. It will have to be borne in mind that the percentage of reservation as noted above, i.e. 7% for SC, 10% for ST(P) and 5% for ST(H) is not only applicable for the vacancies to be filled up by direct recruitment (see Section 4 of the Act, 1978), but the said percentage of reservation is also applicable for vacancies to be filled up by promotion (See Section 5 of the Act, 1978). Although a separate 20 point roster is given in the Schedule to the Act to be maintained, but as has been held by the Apex Court in R.K. Sabharwal (Supra), when a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reservation points, the posts shown on the reserved points are to be filled from the amongst reserved categories. However, operation of the roster will have to be in reference to prescribed percentage of reservation. The prescription being operation of the roster till the required percentage is achieved, in absence of any quota on the basis of the prescribed percentage, there is no question of operating the roster to achieve impermissible percentage of reservation. 40. Above being the position, I am of the considered opinion that taking into account the respective percentage of reservation earmarked for all the three categories, no reservation of vacancies can be provided to the private respondents and consequently their selection on that basis is liable to be interfered with. 24. Mr. A.K. Bhattacharyya, learned Senior Counsel for the appellant in W.A. No. 39 of 2011 has submitted that the appellant is entitled to be recommended for promotion on the basis of his merit as reflected in his ACR without considering him as a candidate belonging to the reserved category. Criteria for promotion being merit with due regard to seniority, the appellant having secured 15 marks alongwith Shri Uma Baruah, which is the highest marks amongst all the candidates considered, his case cannot be ignored. Criteria for promotion being merit with due regard to seniority, the appellant having secured 15 marks alongwith Shri Uma Baruah, which is the highest marks amongst all the candidates considered, his case cannot be ignored. The learned Senior Counsel also submits that categories referred to in the meeting of the Selection Board held on 20.05.2010 do not reflect the actual merit of the candidates as contemplated by the principle of merit with due regard to seniority. He also places reliance in the cases of (i) Union of India v. Mohan Lal Kapoor, reported in (1973) 2 SCC 836 , (ii) B. V. Sivaiah v. K. Addanki Babu, reported in (1998) 6 SCC 720 . Mr. Bhattacharyya lays emphasis on the observation of the learned Single Judge in paragraph 41 of the Judgment to the effect that respondent Nos. 4 and 5 would be entitled to get consideration without any weightage of reservation and therefore, a direction ought to be issued by this Court to consider their cases accordingly. 25. Mr. N. Baruah, learned counsel for the appellant in Writ Appeal No. 115 of 2011 submits that in view of the submissions advanced in Writ Appeal No. 39 of 2011, the appellant in Writ Appeal No. 115 of 2011 is the only candidate remaining in fray belonging to reserved category. The only contention advanced by him is that total percentage of reservation of Scheduled Caste, Scheduled Tribe (P) and Scheduled Tribe (H) clubbed together comes to 22% and the cadre of Additional Chief Engineer having comprised of 7 posts, total posts available for the reserved category candidates on the basis of the said percentage is 1.54%, which is to be rounded of to 2%. He submits that even if the fraction is ignored, at least 1 post is required to be filled by reserved category candidate and therefore, he is liable to be considered for promotion as a candidate belonging to the reserve category. 26. Mr. U.K. Nair, learned counsel for the writ petitioners submits that the criteria adopted for promotion in the Selection Board meeting on 20.05.2010 was followed since the year 2001 when it was first laid down and earlier promotions were made on the same criteria. It is also submitted by him that there is no merit in the contentions advanced by the learned counsel for the appellants. It is also submitted by him that there is no merit in the contentions advanced by the learned counsel for the appellants. It is also submitted by him that question of backlog cannot arise in a situation in respect of a post when no reservation is at all permissible in respect of that particular post having regard to percentage of reservation prescribed. 27. We find sufficient force in the submission of Mr. Nair. It is to be borne in mind that the criteria adopted leading to placement of officers in Category-I, Category-II and Category-III and the norms to be followed after such placement is not challenged. Though the respondent No. 5 had secured 15 marks, the highest mark, alongwith Shri Uma Baruah, fact remains that he is placed in Category-II and as such he will retain his seniority position qua the other officers placed in Category-II. The cases cited by Mr. Bhattacharyya with regard to the principles of promotion on the basis of merit with due regard to the seniority do not get attracted to the facts and circumstances of the case. The appellants, who were respondent Nos. 4 and 5 in the writ petitions in question, were placed at Sl. Nos. 9 and 10 in the recommendation made by the Selection Board on 20.05.2010 only because of the fact that they belong to Scheduled Caste category candidates in order to fill-up backlog vacancies. When in the cadre of Additional Chief Engineer, no reservation is permissible, the question of filling-up of backlog vacancies in the said cadre necessarily and logically cannot arise. The observation in paragraph 41 of the Judgment of the learned Single Judge to the effect that respondent Nos. 4 and 5 will be entitled to get consideration without any weightage on reservation, on which much reliance has been placed by Mr. Bhattacharyya, has to be seen and understood in the overall context of the findings recorded. They were recommended only because of the fact they belong to Scheduled Caste and but for that consideration, they would not have been in the list of 10 candidates recommended as their positions were 14 and 15. Therefore, the observation of the learned Single Judge has to be understood to mean that the respondent Nos. 4 and 5 will be entitled to be considered if only they come within the zone without the weightage of reservation. The contention advanced by Mr. Therefore, the observation of the learned Single Judge has to be understood to mean that the respondent Nos. 4 and 5 will be entitled to be considered if only they come within the zone without the weightage of reservation. The contention advanced by Mr. Baruah was also canvassed before the learned Single Judge. Neither before the learned Single Judge nor before us any authority directly on the point has been cited to support the contention. According to us, clubbing together the entire percentage of reservation of the three reserved categories for the purpose of finding out the quota of reservation fixed in a cadre for the purpose of promotion is wholly not permissible. We are in agreement with the view taken by the learned Single Judge that percentage of reservation as envisaged in respect of each reserved category under the relevant statute can only be taken to determine the extent of reservation permissible in respect of each of the categories in a cadre. In view of the above, Writ Appeal Nos. 256 of 2011, 59 of 2011 and 115 of 2011 are dismissed. No costs. Appeal dismissed