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2014 DIGILAW 783 (GAU)

Khagendra Nath Sarma v. Leena Thakuria

2014-08-08

UJJAL BHUYAN

body2014
Judgment Ujjal Bhuyan, J. 1. Heard Mr. M.K. Choudhury, learned senior counsel assisted by Mr. U.K. Nair, learned counsel for the applicants and Mr. P.J. Saikia, learned counsel for the opposite parties/writ petitioners. I have also heard Mr. P. Roy, learned Additional Advocate General, Assam and Dr. B. Ahmed, learned Standing Counsel, Irrigation Department Mr. M.H. Ahmed, learned counsel who has appeared on behalf of some of the private respondents in the related writ petition has also been heard. Applicants, who are respondents in the related writ petition WP(C) No. 707/2014, have filed this application for vacation and/or modification of the interim order dated 12.2.2014 whereby this Court had directed that there would be no further promotion to the post of Assistant Executive Engineer in the Irrigation Department The application has been registered as Misc. Case No. 726/2014. 2. On 25.3.2014, this Court took the view that considering the subject matter of the writ petition, it would be appropriate if the entire matter is taken up for final disposal. While fixing the writ petition for final hearing on 22.5.2014, it was observed that if for any reason, the writ petition could not be taken up for disposal, applicants would be at liberty to press the Misc. case. Since the writ petition could not be finally heard, applicants have pressed this application in terms of the order dated 25.3.2014. Accordingly, the matter was heard at considerable length on 24.7.2014. 3. Opposite party Nos. 1 to 15 as the writ petitioners (hereafter referred to writ petitioners) have filed WP(C) No. 707/2014. Case of the writ petitioners as projected in the writ petition is that they belong to reserve categories such as Scheduled Tribe (Plains) ST(P), Scheduled Tribe (Hills) ST(H) and Scheduled Caste (SC). Writ petitioners were appointed as Assistant Engineer (Civil) in the Irrigation Department, Government of Assam in the year 2007. Presently they are serving as Assistant Engineer (Civil) and seek promotion to the next higher rank of Assistant Executive Engineer. 4. Engineering Service under the Irrigation Department, Government of Assam is regulated by the Assam Engineering (Irrigation Department) Service Rules, 1978, as amended, framed in exercise of powers under the proviso to Article 309 of the Constitution of India (Service Rules, hereafter). 4. Engineering Service under the Irrigation Department, Government of Assam is regulated by the Assam Engineering (Irrigation Department) Service Rules, 1978, as amended, framed in exercise of powers under the proviso to Article 309 of the Constitution of India (Service Rules, hereafter). As per the Service Rules, cadre of Assistant Executive Engineer is in Class-I category and is required to be filled up by way of promotion from the feeder cadre of Assistant Engineer. It is stated in the writ petition that eligibility criteria for such promotion is minimum continuous service as Assistant Engineer for a period of 5 years as on 1st January of the year of promotion. Promotion is based on the criteria of "merit with due regard to seniority." 5. According to the writ petitioners, the cadre strength of Assistant Executive Engineer (Civil) is 202 out of which 3 posts meant for SC, 15 meant for ST(P) and 6 posts meant for ST(H), are at present vacant. 6. Meeting of the Selection Board constituted for selection of officers for promotion from the rank of Assistant Engineer to the rank of Assistant Executive Engineer in the Irrigation Department was held on 24.1.2014. As per the minutes of the meeting of the Selection Board held on 24.1.2014, 10 numbers of vacancy were to be filled up in the year 2012 and 14 numbers of vacancy were to be filed up in the 2013. Selection Board made two recommendations, one for the year 2012 and the other for the year 2013. For the year 2012, 10 officers were recommended out of whom only one Sri Tarun Ch. Taid at Sl. No. 1 belongs to the reserve category i.e. ST(P). For the year 2013-14 candidates were recommended, none of whom belongs to the reserve category of ST(P), ST(H) and SC. 7. Writ petitioners have contended that the aforesaid selection is illegal and untenable for two reasons. First, there were backlog vacancies of ST(P) (15), ST(H) (6) and SC (3) totaling 24. Therefore, the selection for the years 2012 and 2013 which was for 24 vacancies (10 for 2012 and 14 for 2013) ought to have been exclusively confined to the reserve category candidates belonging to ST(P), ST(H) and SC. Instead, except one officer belonging to ST(P), none of the officers belonging to the above 3 reserve categories were recommended for promotion. Therefore, the selection for the years 2012 and 2013 which was for 24 vacancies (10 for 2012 and 14 for 2013) ought to have been exclusively confined to the reserve category candidates belonging to ST(P), ST(H) and SC. Instead, except one officer belonging to ST(P), none of the officers belonging to the above 3 reserve categories were recommended for promotion. Writ petitioners therefore contend that such recommendation is in violation of the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978 as amended by the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) (Amendment) Act, 2012, which provides 7% reservation for SC, 10% for ST(P) and 5% for ST(H) with roster points earmarked for such categories in the 100 points roster. According to the petitioners, roster points 8, 22, 36, 51, 66, 79 and 93 are earmarked for SC; roster points 5, 15, 25, 35, 45, 55, 65, 75, 85 and 95 are earmarked for ST(P) whereas roster points 10, 30, 50, 70 and 90 are earmarked for ST (H). 8. Second objection of the petitioners to the selection is that the selection has been conducted on the basis of "seniority" only in contravention to the criteria of "merit with due regard to seniority" as prescribed under the Service Rules. 9. This Court by order dated 12.2.2014 while granting time to the learned Additional Advocate General to obtain necessary instruction, passed an order that till the next date, no further promotion should be effected. Subsequently, by order dated 3.3.2014, the writ petition was admitted and the interim order passed on 12.2.2014 was directed to be continued. 10. It is the interim order which the applicants seek vacation/modification of as the same has come in their way for promotion from Assistant Engineer to Assistant Executive Engineer. Be it stated that the applicants are serving as Assistant Engineer in the Irrigation Department and have been recommended by the Selection Board for promotion to the next higher rank of Assistant Executive Engineer. 11. In the Misc. application, applicants have contended that in the selection held, the Selection Board had applied the criteria of "merit with due regard to seniority" by taking into consideration the gradings in the Annual Confidential Reports (ACRs) of the officers and by assigning marks for such gradings. 11. In the Misc. application, applicants have contended that in the selection held, the Selection Board had applied the criteria of "merit with due regard to seniority" by taking into consideration the gradings in the Annual Confidential Reports (ACRs) of the officers and by assigning marks for such gradings. Marks obtained by the respective officers who were placed in the zone of consideration were considered. Those in the zone of consideration who secured more than the cut off mark, they were placed in one category and were arraigned in terms of their inter se seniority. This satisfies the criteria of "merit with due regard to seniority". In so far as the contention of the writ petitioners regarding reservation is concerned, it is contended that there can be no reservation in promotion in view of the law laid down by the Hon'ble Supreme Court in the case of M. Nagraj & Ors. Vs. Union of India & Ors. reported in (2006) 8 SCC 212 wherein it was held that if the State wishes to make provision for reservation for SCs and STs in matters of promotion, the State has to collect the quantifiable data showing backwardness of the class (SC and ST) and inadequacy in representation of such class in public employment. In the absence of such quantifiable data, the State cannot make provision for any reservation in promotion. This position has been reinforced by the later decision of the Hon'ble Supreme Court in the case of U.P. Power Corporation Limited Vs. Rajesh Kumar & Ors. reported in (2012) 7 SCC 1 . A Division Bench of this Court has also passed an order on 30.5.2013 in WP(C) No. 2752/2013 (Md. Shakeel Sadaulla & Anr. Vs. State of Assam & Ors.) making it clear that the State will not take any action in violation of the law laid down by the Hon'ble Supreme Court in U.P. Power Corporation Limited (supra). That being the position, the contention of the writ petitioners that they are entitled to the benefit of reservation while considering promotion to the next higher rank of Assistant Executive Engineer is without any substance. It is also stated that many of the applicants are on the verge of superannuation, some as early as August, 2014. 12. An affidavit has been filed by the writ petitioners objecting to the application filed by the applicants for vacating the stay order. It is also stated that many of the applicants are on the verge of superannuation, some as early as August, 2014. 12. An affidavit has been filed by the writ petitioners objecting to the application filed by the applicants for vacating the stay order. Submissions and contentions advanced in the writ petition have been reiterated. It is, however, stated that the Government of Assam has constituted a Commission to assess the quantifiable data relating to backwardness of the class, inadequacy of representation in public service and efficiency in administration. It is stated that the Commission has submitted its report to the Government. 13. In the main writ petition, respondent No. 1 (Secretary to the Government of Assam, Irrigation Department) has filed an affidavit on 10.6.2014 to which, it appears, the writ petitioners have also filed their rejoinder. Contentions raised in these two affidavits would be adverted to in the succeeding part of this order. 14. Since submissions made by the learned counsel for the parties are on pleaded lines, it is considered not necessary to make a detailed reference to the submissions so made. But it may be pointed out that while the learned Standing Counsel has supported the action taken by the Irrigation Department, learned Additional Advocate General on the other hand submitted that Government is looking into the report submitted by the Committee in terms of M. Nagraj (supra) and U.P. Power Corporation Ltd. (supra). Court should therefore await the decision of the Government 15. Submissions made at the Bar have received the due consideration of the Court. 16. The objection made by the writ petitioners to the selection made that it was on the criteria of "seniority" only rather than "merit with due regard to seniority", may be taken up first. 17. Initially, under Rule 13(4) of the Service Rules, selection for promotion to the cadre of Assistant Engineer was on the basis of "merit-cum-seniority". By the amendment made in the year 1999, sub-rule (4) of Rule 13 was amended and as per the amended provision, promotion is on the basis of "merit with due regard to seniority" to all cadres of posts. 18. By the amendment made in the year 1999, sub-rule (4) of Rule 13 was amended and as per the amended provision, promotion is on the basis of "merit with due regard to seniority" to all cadres of posts. 18. In the counter affidavit filed by the Secretary to the Government of Assam, Irrigation Department in the main writ petition, it is stated that Government of Assam in the Irrigation Department had issued an Office Memorandum dated 28.9.2007 laying down the criteria for promotion to different cadres in terms of the Service Rules as amended. It is stated that points are allotted on the basis of final accepting remarks in the ACRs of the concerned officers under consideration by the Selection Board which are as under:- Below Average 0 Average 1 Good 2 Very Good 3 Outstanding 4 For promotion from Assistant Engineer to Assistant Executive Engineer, Irrigation Department has made 3 categories as under:- Category-1 18 and above Category-2 6 to below 18 Category-3 Below 6 19. Officers falling under category-3 are not considered for promotion. As per the said Office Memorandum, which has been issued to give effect to the criteria of "merit with due regard to seniority", for selection of officers for promotion, ACRs of last 5 consecutive years would be considered. Based on gradings in the ACRs, there will be only two categories of officers in the selection process i.e., those who are eligible for promotion and those who are not eligible for promotion. Officers securing minimum 6 points or more would be categorized in single group and would be considered as eligible officers for promotion and those officers securing less than the minimum required points would be considered as not eligible. Thus, in the case of promotion from Assistant Engineer to Assistant Executive Engineer, those who secured less than 6 points would not be considered as eligible whereas those who secured 6 points and above would be considered as eligible. Stand taken by the departmental Secretary in his affidavit is that those officers who are in the zone of consideration and who achieved the bench mark and above i.e., 6 points and more would be considered as eligible candidates, having met the merit criteria. Thereafter, their seniority will come into play. This policy is in vogue and has been applied in all promotions including the present one. Thereafter, their seniority will come into play. This policy is in vogue and has been applied in all promotions including the present one. The Office Memorandum dated 28.09.2007 which lays down the above policy has not been challenged by the writ petitioners. 20. In my view, the procedure followed by the Irrigation Department as envisaged in the Office Memorandum dated 28.9.2007 meets the criteria of "merit with due regard to seniority." The principle of "merit-cum-seniority" lays greater emphasis on merit and seniority plays a less significant role. Only when merit is found approximately equal, seniority is to be given weightage. On the other hand, the expression "merit with due regard to seniority" though is essentially a merit based criterion, seniority is not ignored altogether. Seniority has to be considered parallely along with merit while determining the eligibility of a candidate for his inclusion in the select list. That being the position, I am of the considered view that the procedure that has been adopted by the Irrigation Department conforms to the requirement of the criteria "merit with due regard to seniority." Therefore, this Court is not inclined to accept the contention of the writ petitioners that the procedure followed was a seniority based selection and not based on the criteria of "merit with due regard to seniority" 21. Second ground of objection may now be considered. As already noticed above, it is the contention of the writ petitioners that all the vacancies for both the years (2012 and 2013) were required to be filled up by the reserve category candidates belonging to SC, ST(P) and ST(H) as there is short fall in the number of man in position belonging to the above categories in the cadre of Assistant Executive Engineer. Petitioners have contended that in terms of the Reservation Act, as amended, applicable in the State of Assam, they, being reserve category candidates, are entitled to promotion to the cadre of Assistant Executive Engineer on account of preferential treatment by virtue of the rule of reservation. 22. In this case, we are concerned with reservation in promotion in public service. The issue of reservation in promotion has received considerable attention of the Hon'ble Supreme Court and as on today, there appears to be considerable clarity regarding the law on this point. The law on this point has virtually crystallized. 22. In this case, we are concerned with reservation in promotion in public service. The issue of reservation in promotion has received considerable attention of the Hon'ble Supreme Court and as on today, there appears to be considerable clarity regarding the law on this point. The law on this point has virtually crystallized. Reservation may be necessary as a corrective measure to remove age old discrimination and injustice. But as the Hon'ble Supreme Court has said, reservation is necessary for transcending the barriers of caste and not for perpetuating it. Therefore, it has been the consistent endeavour of the Hon'ble Supreme Court to strike a reasonable balance between the claims of the backward classes for preferential treatment based on the principle of social justice and the individual right of equality under Article 16(1). However, before further deliberation, it would be apposite to briefly refer to the constitutional provisions relating to such reservation. 23. Article 46 of the Constitution of India which finds place in Part-IV of the Constitution relating to Directive Principles of State Policy provides that State shall promote with special care the educational and economic interests of the weaker sections of the people, particularly, the Scheduled Castes and the Scheduled Tribes and shall protect them from social injustice and all forms of exploitation. 24. Article 16 of the Constitution of India, a fundamental right, mandates equality of opportunity in matters of public employment. It says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Sub-articles (4A) and (4B) are relevant for the present case, which are therefore quoted here under:- "(4A). Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the state in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. (4B). (4B). Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year." 25. Article 16(4A) as it stands today, was inserted by the Constitution (Seventy-seventh Amendment) Act, 1995 with effect from 17.6.1995 with further amendment brought in by the Constitution (Eighty-fifth Amendment) Act, 2001 whereby the words "in matters of promotion, with consequential seniority, to any class" were inserted with retrospective effect from 17.06.1995. Article 16(4B) as it stands today, was inserted by the Constitution (Eighty-first Amendment) Act, 2000 with effect from 19.6.2000. Sub-article (4A) provides that equality of opportunity as mandated by Article 16 shall not prevent the State from making any provision for reservation in matters of promotion with consequential seniority to any class or classes of posts in the services under the State in favour of SCs and STs if in the opinion of the State, they are not adequately represented in the services under the State. 26. Sub-article (4B) of Article 16 on the other hand provides that the equality clause of Article 16 shall not prevent the State from considering any unfilled vacancy of a year which is earmarked for SC or ST to be filled up in any succeeding year or years as a separate class of vacancies which should not be clubbed together with the current vacancies of the year in which the vacancies are being considered for being filled up while determining the ceiling of fifty percent reservation of that year as per the law declared by the Hon'ble Supreme Court in Indra Sawhney Vs. Union of India reported in 1992 Supp. (3) SCC 217. 27. These two sub-articles were inserted in Article 16 of the Constitution of India by way of constitutional amendments as indicated above to over come various pronouncements of the Hon'ble Apex Court which has been elaborately dealt with by the Supreme Court in the case of M. Nagraj (supra). Union of India reported in 1992 Supp. (3) SCC 217. 27. These two sub-articles were inserted in Article 16 of the Constitution of India by way of constitutional amendments as indicated above to over come various pronouncements of the Hon'ble Apex Court which has been elaborately dealt with by the Supreme Court in the case of M. Nagraj (supra). M. Nagraj (supra) may be considered as a watershed decision of the Hon'ble Apex Court in so far this subject is concerned. But before adverting to M. Nagraj (supra) in some more detail, a brief reference to Article 335 of the Constitution would be in order. 28. Article 335 lays down that claims of the members of SCs and STs shall be taken into consideration consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. As per the proviso, nothing in Article 335 would prevent in making of any provision in favour of SCs and STs for relaxation in qualifying marks in any examination or lowering the standards of evaluation for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State. 29. In M. Nagraj (supra), the constitutional validity of the Constitution (Seventy-seventh Amendment) Act, 1995, Constitution (Eighty-first Amendment) Act, 2000 and Constitution (Eighty-fifth Amendment) Act, 2001 was examined. While examining the constitutional validity of the above amending Acts, the Hon'ble Supreme Court also considered the width and amplitude of the right of equal opportunity in public employment in the context of reservation. While upholding the constitutional validity of the aforesaid amending Acts, the Hon'ble Supreme Court finally held as under:- "121. The impugned constitutional amendments, by which Articles 16(4-A) and 16(4-B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBCs on one hand and SCs and STs on the other hand as held in Indra Sawhney, the concept of post-based roster with inbuilt concept of replacement as held in R.K. Sabharwal. 122. We reiterate that the ceiling limit of 50% the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse. 123. However, in this case, as stated above, the main issue concerns the "extent of reservation". In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of mat class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely." 30. Thus, it was held that the State is not bound to provide reservation for SCs and STs in matters of promotion. However, if the State wishes to make such a provision, which is permissible under Article 16(4A) and 16(4B), the State has to collect the quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment. In addition, the State must also ensure compliance of Article335. However, if the State wishes to make such a provision, which is permissible under Article 16(4A) and 16(4B), the State has to collect the quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment. In addition, the State must also ensure compliance of Article335. In other words, before providing for reservation in promotion, the State must examine and make an assessment of the backwardness and inadequacy of representation which must be consistent with overall administrative efficiency. These three i.e., backwardness of the class, inadequacy of representation of that class and maintenance of efficiency of administration have been held by the Hon'ble Supreme Court in M. Nagraj (supra) as constitutional requirements which are required to be fulfilled/satisfied before providing for reservation to SCs and STs in promotion. 31. Whether there should be reservation for SCs and STs in promotion in services under the State or not is a matter of policy. But if the State wants to make such a provision, which it is empowered to do by virtue of the enabling provision of Article 16(4A), it must satisfy the twin tests of backwardness of the class and inadequacy of representation of that class in the public service or services which must then be harmonized with the maintenance of overall efficiency in administration. These three factors have been held to be constitutional requirements. The State must form its opinion whether to provide for reservation to SCs and STs in promotion or not keeping in mind the above three requirements based on the quantifiable data. Until this is done, the State would be precluded from invoking the enabling provision. In M. Nagraj (supra), the constitution bench specifically declared that if the two compelling reasons of backwardness and inadequacy of representation do not exist, then the enabling provision cannot come into force; the State can make provision for reservation in promotion only if the above two circumstances exist. Even then also it must keep in mind maintenance of efficiency in administration which has been held to be a constitutional limitation on the discretion of the State to make provision for reservation in promotion. Even then also it must keep in mind maintenance of efficiency in administration which has been held to be a constitutional limitation on the discretion of the State to make provision for reservation in promotion. It has been held that in "each case" the Court has got to be satisfied that the State has exercised its opinion in making reservation in promotion for SCs and STs and for which the State concerned will have to place before the Court the requisite quantifiable data in "each case" and satisfy the Court that such reservation became necessary on account of inadequacy of representation of SCs and STs in a particular class or classes of posts without affecting the general efficiency of service. 32. The decision in M. Nagraj (supra) was interpreted by the Apex Court in Suraj Bhan Meena Vs. State of Rajasthan (2011) 1 SCC 467 . In Suraj Bhan Meena (supra), the State Government had not undertaken any exercise as indicated in M. Nagraj (supra) before providing for reservation to SCs and STs in promotion with consequential seniority. The Apex Court took the view that the State is required to place before the Court the requisite quantifiable data in each case and to satisfy the Court that the said reservation became necessary on account of inadequacy of representation of SCs and STs in a particular class or classes of posts without affecting the general efficiency of service. The decision of the Rajasthan High Court in quashing the State Government notification providing for reservation to SCs and STs in promotion with consequential seniority was not interfered with by the Apex Court. 33. Finally, the Hon'ble Supreme Court in U.P. Power Corporation Limited (supra), after in-depth analysis of M. Nagraj (supra), culled out the following principles which are quoted here under:- "81. From the aforesaid decision in M. Nagraj case and the paragraphs we have quoted hereinabove, the following principles can be carved out; (i) Vesting of the power by an enabling provision may be constitutionally valid and yet "exercise of power" by the State in a given case may be arbitrary, particularly, if the State fails to identify and measure the backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335. (ii) Article 16(4) which protects the interests of certain sections of the society has to be balanced against Article 16(1) which protects the interests of every citizen of the entire society. They should be harmonized because they are restatements of the principle of equality under Article 14. (iii) Each post gets marked for the particular category of candidates to be appointed against it and any subsequent vacancy has to be filled by that category candidate. (iv) The appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. The cadre strength as a unit also ensures that the upper ceiling limit of 50% is not violated. Further, roster has to be post-specific and not vacancy based. (v) The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clause (4-A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4-A) of Article 16 applies only to SCs and STs. The said clause is carved out of Article 16(4). Therefore, clause (4-A) will be governed by the two compelling reasons-"backwardness" and "inadequacy of representation", as mentioned in Article 16(4). If the said two reasons do not exist, then the enabling provision cannot be enforced. (vi) If the ceiling limit on the carry over of unfilled vacancies is removed, the other alternative time factor comes in and in that event, the timescale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the timescale is not kept, then posts will continue to remain vacant for years which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the duration depending upon the fact situation. (vii) If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335, then this Court will certainly set aside and strike down such legislation. (viii) The constitutional limitation under Article 335 is relaxed and not obliterated. As stated above, be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate. This exercise, however, will depend on the facts of each case. (viii) The constitutional limitation under Article 335 is relaxed and not obliterated. As stated above, be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate. This exercise, however, will depend on the facts of each case. (ix) The concepts of efficiency, backwardness and inadequacy of representation are required to be identified and measured. That exercise depends on the availability of data. That exercise depends on numerous factors. It is for this reason that the enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimize these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment. (x) Article 16(4), therefore, creates a field which enables a State to provide for reservation provided there exists backwardness of a class and inadequacy of representation in employment. These are compelling reasons. They do not exist in Article 16(1). It is only when these reasons are satisfied that a State gets the power to provide for reservation in the matter of employment." The Hon'ble Supreme Court declared that it was of the firm view that a fresh exercise in the light of the constitution bench judgment in M. Nagraj (supra) is a categorical imperative. It has been clarified that Article 16(4A) and 16(4B) are enabling provisions which enable the State to make provision for reservation in promotion for SCs and STs subject to fulfillment of the conditions precedent which are constitutional requirements. 34. In the affidavit of the departmental Secretary, it is stated that an 'One Man Commission' has been appointed by the State Government to examine the whole issue of reservation in promotion. The exercise is yet to be completed. In the meanwhile, a Division Bench of this Court has made it clear that State will not take action in violation of law laid down by the Hon'ble Supreme Court in U.P. Power Corporation Limited (supra). 35. Admittedly, there is no quantifiable data before the State as of now regarding the three constitutional requirements, namely, backwardness of the class, inadequacy in representation in public services and overall efficiency in administration in the event of reservation in promotion. In the absence of such quantifiable data, question of forming any opinion by the State to invoke the enabling provision of Article 16(4A) does not arise. In the absence of such quantifiable data, question of forming any opinion by the State to invoke the enabling provision of Article 16(4A) does not arise. The State i.e. Irrigation Department, Government of Assam therefore rightly did not provide for any reservation in the impugned promotion exercise. The course of action adopted by the Irrigation Department therefore cannot be faulted. 36. Before concluding, there is one more aspect to which the attention of the Court has been drawn. It was one of the contentions advanced by the learned counsel for the writ petitioners that since there is already the Reservation Act, as amended in 2012, which provides for reservation in promotion, no fresh exercise to collect the quantifiable data and thereafter to form opinion by the State is necessary. Such a contention has no legal substance as the statutory provisions are subject to the law laid down by the Apex Court. Till the exercise of collection of quantifiable data relating to the three constitutional requirements as discussed above is carried out in terms of M. Nagraj (supra) and U.P. Power Corporation Limited (supra) and thereafter the State forms an opinion based on the quantifiable data so collected that the enabling provision of Article 16(4A) is to be invoked, the Reservation Act of 1978 as amended in 2012 in so far it provides for reservation in promotion would remain in a dormant state. In other words, it stands ineffectual and its operation vis-a-vis reservation in promotion would remain suspended till the State satisfies the tests mandated by the Apex Court in the above two decisions. In view of the discussions made above, I am of the considered view that the interim order passed by this Court on 12.2.2014 and extended by the order dated 3.3.2014 cannot be continued any further. Accordingly, both are hereby vacated. Misc. case is allowed.