Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1135 (GAU)

Debananda Roy v. State of Assam

2018-08-02

AJIT SINGH, MANOJIT BHUYAN

body2018
JUDGMENT : Manojit Bhuyan, J. The appellant/writ petitioner is a Junior Assistant in the establishment of the Executive Engineer, Goalpara Division (Irrigation). He is a member of the Other Backward Community (OBC). He and respondent no. 6 were the only contenders for promotion to the vacant post of Senior Assistant in the establishment. A selection was carried out, in pursuance whereof, the respondent no. 6, being a Scheduled Tribe (Plains) candidate, was promoted to the said post. Approval was granted by the Chief Engineer, Irrigation vide order dated 29.07.2015, stating that his office has no objection to the promotion of respondent no. 6, who belongs to ST(P) category, and falls for consideration against Roster Point No. 5, earmarked for ST(P), as per the 13-Point Roster under the Assam Scheduled Castes and Scheduled Tribes (Reservation of Posts in Services) Act, 1978, (as amended in 2012) (hereinafter 'the Act'). On 31.07.2015, an Office Order of promotion was issued in favour of respondent no. 6. The aforesaid two orders dated 29.07.2015 and 31.07.2015 were assailed by the appellant in the related WP(C) 5087/2015 which, however, stood dismissed vide order under appeal dated 14.09.2017. 2. As in the proceedings before the learned Single Judge, even before us the appellant have urged that the impugned orders dated 29.07.2015 and 31.07.2015 are wholly illegal, being passed in utter violation of Article 14 of the Constitution of India and that of the provisions of the Assam Ministerial District Establishment Service Rules, 1967 (hereinafter 'the 1967 Rules'), particularly Rule 6 (4) thereof. Appellant submits that the respondent no. 6 being admittedly junior to him, the benefit of promotion so given to respondent no. 6 was in supersession of his rights, which marks an illegal and discriminatory action on the part of the state respondents. Further, the respondent no. 6 was initially appointed as a Khalashi and her promotion to the post of Junior Assistant on 28.01.2009 was made by giving her preference as an ST(P) candidate as per Roster Point maintained by the office under the Act. This being an undisputed position, as such, the respondent no. 6 could not have been conferred with the same reservation benefit and privilege for the second time. It is also argued that whereas the appellant would retire from service in the year 2020 on attaining the age of superannuation, the respondent no. 6 will retire only in the year 2032. This being an undisputed position, as such, the respondent no. 6 could not have been conferred with the same reservation benefit and privilege for the second time. It is also argued that whereas the appellant would retire from service in the year 2020 on attaining the age of superannuation, the respondent no. 6 will retire only in the year 2032. Therefore, the case of the appellant ought to have been considered. 3. We have heard Mr. H. Das, learned counsel for the appellant as well as Dr. B. Ahmed, learned counsel representing the Irrigation Department i.e. respondent nos. 1 to 4. There is none to represent respondent no. 5 as well as the respondent no. 6, though served. 4. Sub-Rule (4) of Rule 6 of the 1967 Rules prescribes the criteria of seniority-cum-merit for promotion to Senior Assistant from among Junior Assistants of the concerned district establishment, with at least 5 (five) years of service in the said feeder category. This provision governing the criteria for promotion, according to us, has to be read in conjunction with the constitutional scheme, which allows the State to make provision for reservation in matters of promotion in favour of Scheduled Caste and Scheduled Tribes. For the purpose of providing reservation of posts in services for the members of the Scheduled Caste and Scheduled Tribes, the manner and procedure for giving effect of reservation to such members in services or posts in an establishment are governed under the provisions of the aforesaid Act. Section 5 thereof provides for the respective percentage of reservation as well as maintenance of a separate post-based roster in every establishment for recruitment and promotion for each cadre for reservation of candidates of the Scheduled Caste and Scheduled Tribes, having regard to the percentage so prescribed. Section 5(A) of the said Act, particularly clause (iii) thereof, which is essential to be noticed for adjudication of the present appeal, prescribes as under: "(iii) The roster is to be operated on the principle of replacement and not as a running account, in other words, the points at which reservation for different categories applies are fixed as per the roster and vacancies caused by retirement etc. of persons occupying those points shall be filed up by appointment of persons of the respective categories." Admittedly, the point at which reservation applied in the instant case as per the 13-Point Roster maintained by the office concerned as per Schedule-II to the Act (framed under Section 5A) was meant for the Roster Point No. 5, which is earmarked for ST(P). Whereas the appellant is a member of the Other Backward Community (OBC), the respondent no. 6 is a member of the ST(P). The aforesaid Act of 1978, as amended, gives benefit of reservation as per roster point in favour of respondent no. 6. The appellant being an OBC candidate, do not come within the purview of the Act. 5. Having regard to the aforesaid provisions of law, it cannot be held that the promotion effected in favour of respondent no. 6 suffered from any illegality, discrimination or arbitrariness. Whether the respondent no. 6 can claim consequential seniority due to accelerated promotion is a different aspect of the matter with which we are not concerned in the present lis. In so far as the office order dated 29.07.2015 granting approval for filing up the post of Senior Assistant in favour of respondent no. 6 as well as the office order of promotion dated 31.07.2015 are concerned, the same do not call for interference of this Court. Submission made on behalf of the appellant that preference be given to him on ground that he would be retiring from service on an earlier date than the respondent no.6, we are afraid that such submission cannot be taken on board. 6. For the reasons above, we find no merit in the present appeal. The order under appeal dated 14.09.2017 is affirmed and the present appeal stands dismissed, however, without any order as to cost.