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Gauhati High Court · body

2013 DIGILAW 812 (GAU)

Diganta Choudhury v. State of Assam and Ors.

2013-11-19

BIPLAB KUMAR SHARMA

body2013
Biplab Kumar Sharma, J. Both the writ petitions filed by the same petitioner are interconnected and thus have been heard together and are being disposed of by this common judgment and order. While in WP (C) No. 3263/2011 (the first writ petition), the challenge is to the promotion of the private respondents to the post of Superintending Engineer ahead of the petitioner with subsequent promotion to the post of Additional Chief Engineer, the challenge in WP (C) No. 3238/2013 (the second writ petition), is the gradation list in the rank of Additional Chief Engineer so far as the same has shown the petitioner below the private respondents. Thus, the answer to the first writ petition will guide the outcome of the second writ petition. 2. I have heard Mr. S.K. Goswami, learned counsel for the petitioner as well as Dr. B. Ahmed, learned Standing Counsel, Irrigation Department and so also Mr. D.K. Mishra, learned Sr. Counsel, assisted by Mr. J. Chutia, learned counsel for the respondent No. 6. I have also heard Mr. K. Das, learned counsel, representing the respondents No. 4, 5 to 10 and 14 and Mr. A.M. Bujarbarua, learned counsel appearing on behalf of the respondent No. 5. 3. Although various issues like granting promotion to the private respondents, more particularly, the reserved category candidates without identifying the quantifiable datas on which the Apex Court has emphasized in its judgment reported in (2012) 7 SCC 01(Uttar Pradesh Power Corporation Ltd. v. Rajesh Kumar) preceded by (2006) 8 SCC 212 (M. Nagraj v. Union of India); improper assessment in respect of the selection conducted for promotion to the Superintending Engineer and Additional Chief Engineer etc. have been raised by the learned counsel for the petitioner, which have been sought to be countered by the learned counsel for the private respondents as well as the official respondents by raising the question of delay and latches, estoppels etc. coupled with the argument that quantifiable data is easily available on the basis of the materials on record, but without going into those details, the answer to the writ petitions is confined to the basic plea of excessive reservation as alleged to the deprivation of the petitioner, to the rightful promotion to the post of Superintending Engineer and thereafter Additional Chief Engineer. Be it stated here that presently there are two posts of Chief Engineer and taking into consideration the number of incumbents within the zone of consideration, the petitioner irrespective of his later date of promotion is now entitled to get consideration for such promotion along with some of the private respondents, the zone of consideration being in the ratio of 1:4. 4. The promotion to the rank of Superintending Engineer has been affected on the basis of the minutes of the Selection Committee meeting held on 8.9.2009. It is an admitted position that the total cadre strength in the rank of Superintending Engineer is 29. As recorded in the minutes of the meeting, the position of the petitioner amongst the candidates within the zone of consideration was at serial No. 13. It appears that while making the selection on the basis of the ''merits with due regard to seniority" as envisaged under the rules, the Selection Committee assessed the merits of the candidates fixing the bench mark of 10 in reference to the departmental OM dated 23.6.2007. The test of "merit with due regard to seniority" was applied recommending promotion seniority wise to those who had secured the minimum benchmark of 10. 5. On perusal of the minutes of the Selection Committee meeting dated 8.9.2009, it appears that the petitioner's position stood at serial No. 9 and below him there were some other incumbents including the reserved category private respondents, which also included the respondent No. 8 namely Sri Lokhabhiram Saikia. In the list, the last 4 candidates at serial No. 33, 34, 35 and 36, all belong to ST(P) category. They all have been promoted including the said Sri Saikia, who secured total 15 marks as against 14 secured by the petitioner. 6. On perusal of the minutes of the Selection Committee, it is found that the Selection Committee made the recommendation in favour of the reserved category candidates taking into account the reservation points/roster including back-log position. On the basis of such calculation, the Selection Committee was of the opinion that total 6 numbers of vacancies were required to be filled up by ST(P) candidates. 7. Mr. Goswami, learned counsel for the petitioner has submitted that such a formula adopted by the Selection Committee without any reference to the percentage of reservation was totally misplaced. However, Dr. On the basis of such calculation, the Selection Committee was of the opinion that total 6 numbers of vacancies were required to be filled up by ST(P) candidates. 7. Mr. Goswami, learned counsel for the petitioner has submitted that such a formula adopted by the Selection Committee without any reference to the percentage of reservation was totally misplaced. However, Dr. Ahmed, learned Standing Counsel, Irrigation Department has submitted that the Selection Committee rightly arrived at back-log position and there was no excessive reservation. He also submitted that irrespective of reservation, Sri Saikia having secured better marks than the petitioner (15 against 14), irrespective of such reservation, he was entitled to get promotion on his own merit. 8. Mr. Mishra, learned Sr. Counsel, Mr. A.M. Bujarbarua and Mr. K. Das, learned counsel representing the private respondents submitted that the particular exercise under-taken by the Selection Committee cannot be faulted with, in absence of any factual errors or violation of any rules and law holding the field. As regards the promotion of Sri Saikia i.e. the respondent No. 8, Mr. K. Das, learned counsel representing the said respondent submitted that if any fresh exercise is required to be carried out on the basis of the case projected by the petitioner, then also the petitioner cannot claim better merit position than the said respondent. He also submitted that irrespective of the status of the respondent No. 8 even otherwise also, on merit, he is entitled to get the promotion and the said position should not be disturbed. 9. In R.K. Sabharwal v. State of Punjab reported in (1995) 2 SCC 745 , the Apex Court held that the prescribed percentage cannot be achieved or changed in reference to the roster points. Reservation is always on post basis and not vacancy based and the reservation and the percentage thereof is to be achieved in reference to the total cadre strength. When all the roster points in a cadre are filled the required percentage of reservation is achieved. Once the total cadre has full representation of the SC/ST and Backward Classes in accordance with the reservation policy then the vacancies arising thereafter in the cadre are to be filled from amongst the category of persons to whom the respective vacancies belong. 10. Once the total cadre has full representation of the SC/ST and Backward Classes in accordance with the reservation policy then the vacancies arising thereafter in the cadre are to be filled from amongst the category of persons to whom the respective vacancies belong. 10. In the instant case as has been admitted by the learned counsel for the parties, total cadre strength in the post of Superintending Engineer is 29 and the percentage of reservation provided for ST(P) is 10%. Calculating on that basis, only 3 posts can be filled up by ST(P) category candidates. However, the Selection Committee recommended 4 ST(P) category candidates including the respondent No. 8, who is the last in the list and also by far junior to the petitioner. The said reserved category candidates have secured 11, 12, 12 and 15 marks in the selection. Thus they have secured the required the benchmark, which is 10. However, in the principle that has been followed in the matter of promotion applying the test of "merit with due regard to seniority" irrespective of any higher marks secured by a junior, a senior cannot be superceded when he has secured the benchmark. 11. In the instant case, the Selection Committee having fixed the benchmark of 10 and the petitioner having secured the said benchmark was entitled to get the promotion as per his seniority, but he was deprived of the same by promoting a reserved category candidate (respondent No. 8) in excess of the reservation. As noted above, only three ST(P) candidates could have been promoted. but the official respondents promoted 4 exceeding percentage of reservation and in the process, the petitioner was deprived of his promotion. It will be pertinent to mention here that except the petitioner, no other officer is before us challenging the particular recommendation made by the Selection Committee in its meeting held on 8.9.2009 and thus we are not concerned with their cases. 12. Pursuant to the said recommendation, some of the private respondents were promoted to the post of Superintending Engineer on 31.12.2009 including the aforesaid 4 reserved category candidates belonging to ST(P). The petitioner was also promoted four months thereafter vide notification dated 26.4.2010, but on the basis of a subsequent selection. Thus, the case of the petitioner is that his promotion affected vide notification dated 26.4.2010 should relate back to the promotion that was affected vide notification dated 31.12.2009. The petitioner was also promoted four months thereafter vide notification dated 26.4.2010, but on the basis of a subsequent selection. Thus, the case of the petitioner is that his promotion affected vide notification dated 26.4.2010 should relate back to the promotion that was affected vide notification dated 31.12.2009. Since it is an admitted position that, but for the excessive reservation provided, the petitioner would have got his promotion at par with others, who were promoted vide notification dated 31.12.2009, it is hereby provided that his promotion to the rank of Superintending Engineer shall now relate back to 31.12.2009, on which date some of the private respondents including the 4 ST(P) candidates were promoted. 13. Once the petitioner's promotion to the rank of Superintending Engineer is antedated so as to effective at par with others, who were promoted vide notification dated 31.12.2009, his case for future promotion to the next higher rank of Additional Chief Engineer will also have to be considered by a review DPC. It will be pertinent to mention here that the respondents No. 5 and 6 have been promoted to the rank of Additional Chef Engineer vide orders dated 30.12.2010 and 18.5.2010. Other private respondents along with the petitioner have been promoted vide order dated 2.2.2013. Once the petitioner's promotion to the rank of Superintending Engineer is made effective at par with others, who were promoted vide notification dated 31.12.2009, as a natural corollary, his case for promotion to the rank of Additional Chief Engineer will have to be considered afresh by a review DPC in reference to the promotion of the respondents No. 5 and 6, who were promoted on the basis of an earlier selection to the rank of Additional Chief Engineer. Once this exercise is carried out and even otherwise also the case of all the eligible candidates in the rank of Additional Chief Engineer will also have to be considered for promotion to the two vacant posts of Chief Engineer, which could not be done because of pendency of this proceeding. 14. As noted above, even otherwise also, the petitioner is very much within the zone of consideration for promotion to the post of Chief Engineer. As submitted, the retirement of the petitioner from service on attaining the age of superannuation is fast approaching, which is stated to be due in August, 2014. 14. As noted above, even otherwise also, the petitioner is very much within the zone of consideration for promotion to the post of Chief Engineer. As submitted, the retirement of the petitioner from service on attaining the age of superannuation is fast approaching, which is stated to be due in August, 2014. It is expected that the official respondents shall carry out the required exercise as expeditiously as possible. 15. At this stage Mr. Goswami, learned counsel for the petitioner submits that all the private respondents are junior to the petitioner according to the date of joining in the service. 16. The writ petitions are disposed of directing the respondents to conduct a review DPC towards considering the case of the petitioner for promotion to the post of Additional Chief Engineer with retrospective effect following the same norms as were followed in respect of other promotees and thereafter to the post of Chief Engineer along with others as indicated above. The required exercise in this regard shall be carried out as expeditiously as possible, preferably within 31.12.2013. 17. In view of this judgment and order, the gradation list in the rank of Superintending Engineer shall stand revised and depending upon the outcome of the review DPC, the gradation list of Additional Chief Engineer shall also stand revised. As regards the promotion of the respondent No. 8, which has been made in excess of the percentage of reservation, the matter is left open to the sound discretion of the authority to save the situation by making suitable arrangement. It is submitted that the said respondent has not been promoted to the post of Additional Chief Engineer in view of pendency of a departmental proceeding. Both the writ petitions are answered in the above manner. _