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2013 DIGILAW 700 (GAU)

Binod Kumar Agarwala v. State of Assam

2013-09-24

NISHITENDU CHAUDHURY

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JUDGMENT Nishitendu Chaudhury, J. 1. Three writ petitioners belonging to general category and holding the post of Deputy Registrar under the Co-operation Department have approached this Court by this writ petition challenging the legality and validity of order dated 07/11/2007 (Annexure-E to the writ petition) whereby Private Respondent Nos. 5 & 6 were given promotion to the rank of Joint Registrar superseding the claim of the present petitioners. The present petitioners entered into the service under the Cooperation Department as Assistant Registrar of Co-operative Societies in the year 1992 pursuant to the selection of the APSC. Subsequently in the year 1998 they were promoted on regular basis to the rank of Deputy Registrar. In the gradation list of the Deputy Registrars the name of petitioners No. 1, 2 and 3 occurred at Sl. No. 39, 40 and 42 respectively. The Private Respondent Nos. 5 & 6 were also Deputy Registrar and their name occurred in Sl. Nos. 47 & 48 respectively in the said gradation list. Private respondent No. 5 is a member of the Schedule Cast Community whereas respondent No. 6 is a member of Schedule Tribe (Plains) Community. 2. The Secretary to the Government of Assam by the impugned notification allowed the said two juniors of the petitioners to be promoted to the rank of Joint Registrar on the ground that they belong to reserved categories and the petitioners are general category candidates. 3. By filing this writ petition the petitioners have challenged this decision of the Government stating that the cadre of Joint Registrar consists of 7 posts only. The question of reservation for Schedule Cast and ST (P), therefore, to the extent of 7% and 10% respectively cannot arise under such circumstances; the reason being 7 percent of 7 posts will come to 0.49 whereas 10 percent of the 7 posts will become 0.70. All these figures being less than an integer it is not possible to exceed the said limit so as to make it one for giving the benefit of promotion. Drawing my attention to the judgment of the Hon'ble Supreme Court in the case of R.S. Garg vs. Union of India reported in 2006 (6) SCC 430 Mr. All these figures being less than an integer it is not possible to exceed the said limit so as to make it one for giving the benefit of promotion. Drawing my attention to the judgment of the Hon'ble Supreme Court in the case of R.S. Garg vs. Union of India reported in 2006 (6) SCC 430 Mr. U.K. Nair, learned counsel for the petitioner submits that in paragraph 34 of the said judgment the Hon'ble Supreme Court has held that in no case the question of percentage in the concerned statute can be raised by the authority at the time of promotion or appointment. In that case 21 percent of the post was reserved for schedule cast and the authority wanted to give promotion to two candidates which were in excess of 21 percent. 4. Mr. U.K. Nair has also placed reliance in the case of Khanindr a Nath Choudhury vs. State of Assam reported in 2007 (4) GLT 745. In that case the promotional cadre had 4 posts and since 7%, 10% or 5% of cadre strength of four are fractions, this Court felt that no reservation for such a cadre consisting of 4 posts would be permissible. Applying the principal laid down by this Court in case of Khanindra Nath Choudhury it can also be said that when the cadre strength is 7, there cannot be any promotion for the reserved category. The promotion for respondents No. 5 & 6, therefore, is beyond the scope of the rules holding the field and as such, the said promotions cannot be upheld. Mr. U.K. Nair has made a further submission that after the judgment of the Hon'ble 5 Supreme Court in the case of U.P. Power Corporation vs. Rajesh Kumar reported in 2012 (7) SCC 1 , reservation in promotional posts is not supposed to be made before ascertaining the entitlement of the reserved category. Mr. Nair further submits that the minutes of the promotion proceedings which is on record does not show that any exercise has been made by the authority for quantifying the candidates of the reserved categories on the basis of any survey. Mr. Nair further submits that the minutes of the promotion proceedings which is on record does not show that any exercise has been made by the authority for quantifying the candidates of the reserved categories on the basis of any survey. The authorities rely on the provision of Assam Scheduled Castes and Scheduled Tribes (Reservation of Services and Posts) Act, 1978 (hereinafter referred to as "the Act") and the Rules framed therein in 1983 for the purpose of prescribing at the extent of reservation of the reserved categories. Such exercise is clearly in violation of the law laid down by Hon'ble Supreme Court in the case of U.P. Power Corporation (supra). This being the position, the learned counsel submits the promotions of the Private Respondents No. 5 & 6 are liable to be set aside. 5. Per contra Dr. B. Ahmed, learned Standing Counsel of the Cooperation Department submits that there is no amendment either to the Act and/or the rules framed thereunder and as such the question of reservation of the reserved categories will continue to be 7% and 10% and unless and until fresh exercise is made the same quantum of reservation shall continue. According to the learned Standing Counsel there is a roster register maintained by the department which on turn is based on the provision of the Act and the rules framed thereunder and as per the roster the promotion is available to Schedule Caste as well as ST (P) and this is why the authorities granted promotion to Private Respondents No. 5 & 6. 6. Mr. M.K. Borah appearing on behalf of the Private Respondent No. 5 submits that he has been granted promotion on the basis of roster and as such the same cannot be taken away merely because of the fact that a judgment has been passed by Hon'ble Supreme Court in the case of U.K. Power Corporation (supra). 7. After hearing the learned counsel for the parties and on perusal of the materials on record it appears that the fact is not in dispute that the promotional cadre of Deputy Joint Registrar is that of Joint Registrar. It is also not in dispute that the cadre of Joint Registrar consists of 7 posts only. 7. After hearing the learned counsel for the parties and on perusal of the materials on record it appears that the fact is not in dispute that the promotional cadre of Deputy Joint Registrar is that of Joint Registrar. It is also not in dispute that the cadre of Joint Registrar consists of 7 posts only. Even if the contention of the learned Standing Counsel is accepted to the extent that the provision of reservation of the candidates based on the Assam Scheduled Castes and Scheduled Tribes (Reservation of Services and Posts) Act, 1978 is applicable, then also one post out of the 7 posts is more than 7%. Rather 7% of 7 posts amounts to only 0.49 and not 1 and as such applying the principle of Khanindra Nath Choudhury (supra), promotion to respondents No. 5 and 6 are not admissible. In the case of Khanindra Nath Choudhury this Court relied in judgment of the Hon'ble Supreme Court rendered on various occasions including R.K. Sabharwal v. State of Punjab as well as Nagraj. The said Single Bench judgment of the Court has not been modified or varied in any appeal and as such on the basis of the law settled by this Court in the case of Khanindra Nath Choudhury, the impugned notification dated 07.11.2007 is not sustainable in so far as the same relates to respondents No. 5 & 6 and accordingly this notification in respect of respondent No. 5 Sri Aswini Kr. Baishya and Sri Ghana Pegu (respondent No. 6) are set aside. 8. The writ petition is allowed. No order as to costs.