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2020 DIGILAW 164 (GAU)

Yametatin v. State of Arunachal Pradesh

2020-02-07

KALYAN RAI SURANA

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JUDGMENT : Kalyan Rai Surana, J. 1. Heard Mr. D. Panging, the learned counsel for the petitioner, Mr. S. Tapin, the learned senior Government advocate appearing for the State respondents No. 1 to 4 and also Ms. A. Upadhyay, the respondent No. 5 (in person). 2. The learned counsel for the petitioner has submitted that during the pendency of the writ petition, the petitioner has been promoted to the post of Assistant Commissioner (Tax & Excise) [hereinafter referred to as AC(TE) for short]. However, it is submitted that except for the prayer for a direction to promote the petitioner to the post of AC(TE), the petitioner still intends to pursue this writ petition. 3. In this writ petition filed under Article 226 of the Constitution of India, the case projected by the petitioner is that on being recommended by the Departmental Promotion Committee (DPC) by an order dated 11.09.1995, he and the respondent No. 5, amongst others, were appointed as Inspector (Tax & Excise), Group 'B' (Non-Gazetted). In the said order, the name of the respondent No. 5 appeared at Sl. No. 2 and the name of the petitioner appeared at Sl. No. 8. Thereafter, by a notification dated 21.09.2000, the Government made reservation in the matter of promotion, inter-alia, providing reservation of 50% in Group 'A' posts, thereby adopting a Model 100 point roster indicating the point of reservation. Thereafter, by a subsequent notification dated 04.05.2001, it was provided that 80% of the posts in Group 'A' under the Govt. of Arunachal Pradesh which are to be filled up by direct recruitment, shall be reserved for Arunachal Pradesh Schedule Tribe (ST for short) candidates, thereby adopting a model 100 point roster indicating the point of reservation in Group 'A' post. It is projected that on recommendation by the DPC, the Government by an order dated 26.11.2007, regularised the officiating service of 16 persons as Superintendent (T & E) w.e.f. 23.11.2007, wherein the name of the respondent No. 5 and the petitioner appeared at Sl. No. 4 and 8 respectively. Thereafter, by order dated 21.10.2008, the incumbent whose name appeared at Sl. No. 1 in the order dated 26.11.2007 was promoted from Superintendent (Tax & Excise) to the post of Assistant Commissioner (Tax & Excise). By another order dated 15.03.2010, the incumbents whose names appeared at Sl. No. 4 and 8 respectively. Thereafter, by order dated 21.10.2008, the incumbent whose name appeared at Sl. No. 1 in the order dated 26.11.2007 was promoted from Superintendent (Tax & Excise) to the post of Assistant Commissioner (Tax & Excise). By another order dated 15.03.2010, the incumbents whose names appeared at Sl. No. 2, 5 and 3 respectively in the order dated 26.11.2007 were promoted to the post of Assistant Commissioner (Tax & Excise). The final seniority list of Superintendent (Tax & Excise) was published by order dated 23.12.2009, where the names of the respondent No. 5 and the petitioner appeared at Sl. No. 4 and 8 respectively. It may be mentioned that the said list also contained the names of persons already promoted at Sl. No. 1, 2, 3 and 5. Thereafter, by way of an Office Memorandum dated 15.10.2010, the Department of Personnel, Administrative Reforms & Training, Govt. of Arunachal Pradesh had introduced Post Based Roster in place of 100 Point Roster. Thereafter, vide notification dated 16.08.2012, issued under Article 16(4) of the Constitution of India, the Govt. of Arunachal Pradesh modified the previous notifications holding the field to provide that 80% of the posts/services against promotional quota from Group 'B' to Group 'A' shall be reserved for Arunachal Pradesh Schedule Tribe (APST for short) candidates under the Govt. of Arunachal Pradesh with immediate effect. It is further projected that by an order dated 04.11.2005, published in the State Gazette, 3 (three) numbers of post of AC(TE) was sanctioned and created by the Govt. and later on, by another order dated 25.09.2017, another 6 (six) numbers of post of AC(TE) was sanctioned and created by the Govt. Thus, a total of 12 posts of AC (TE) came to exist in the Department of Tax & Excise, Govt. of Arunachal Pradesh. It is further projected that in supersession of the earlier order dated 26.11.2007, the serial numbers of the said 16 officers were recast by order dated 05.11.2015, and the names of the petitioner and the respondent No. 5 now appeared at Sl. No. 7 and 10 respectively. 4. The DPC held on 17.07.2018, recommended promotion of 11 candidates working as Superintendent (Tax & Excise) to the post of AC(TE), wherein the name of respondent No. 5 appeared at Sl. No. 1, recommending her promotion w.e.f. 01.04.2017, and the name of the petitioner appeared at Sl. No. 7 and 10 respectively. 4. The DPC held on 17.07.2018, recommended promotion of 11 candidates working as Superintendent (Tax & Excise) to the post of AC(TE), wherein the name of respondent No. 5 appeared at Sl. No. 1, recommending her promotion w.e.f. 01.04.2017, and the name of the petitioner appeared at Sl. No. 4, recommending her promotion w.e.f. 15.12.2007. Thereafter, by order dated 12.10.2018, three persons, whose names appeared at Sl. No. 1, 2 and 3 of DPC held on 17.07.2018, were promoted w.e.f. 05.01.2016, the date on which the fist DPC was scheduled, and in that list, the name of respondent No. 5 was at Sl. No. 1. The petitioner is aggrieved by the said order of promotion of respondent No. 5 on the ground that it was in violation of the Post Based Roster that had replaced the 100 Point Roster. 5. The State respondents No. 1, 2 and 3 have filed their affidavit-in-opposition. It has been stated that the promotion to the post of AC(TE) were made in accordance with the DPC recommendation and in consonance with the reservation policy in force, as clarified by the OM dated 05.03.2013 and 21.11.2018. It has been asserted that the actions of the State Govt. was just, reasonable and constitutional. 6. In her affidavit-in-opposition, the respondent No. 5 has justified her promotion by placing reliance on OM dated 06.03.2013 and, 21.11.2018. It has been projected that at the relevant time 6 posts of AC(TE) had existed, out of which 3 posts were filled up by promotion under 50-50 percent reservation regime, as prevailing then. The remaining 3 posts were filled up under the 80-20 percent reservation regime. It has been further projected that the roster notification dated 21.09.2000 was effective under vacancy based regime only and not under the Post Based Roster regime. It is also projected that previously one Pebom Bagra was promoted to AC(TE) as reserved candidate. Then T. Tatak was promoted against second vacancy as reserved candidate. Thereafter, the third vacancy was filled up by T. Dutta as unreserved candidate. Thus, under 50-50 percent reservation regime, the fourth vacancy was required to be filled up by an unreserved candidate. It is also projected that previously one Pebom Bagra was promoted to AC(TE) as reserved candidate. Then T. Tatak was promoted against second vacancy as reserved candidate. Thereafter, the third vacancy was filled up by T. Dutta as unreserved candidate. Thus, under 50-50 percent reservation regime, the fourth vacancy was required to be filled up by an unreserved candidate. It has been also projected that under 80-20 percent reservation regime, out of 6 vacancies, fifth vacancy cannot be for reserved candidate, rather it is reserved in Post Based Roster of 80-20 ratio and that as per the OM dated 06.03.2013 and 21.11.2018, out of six posts, two unreserved candidates can be accommodated, for which reliance is placed on opinion of the Law Department dated 12.7.2017 (Annexure-3 to the affidavit-in-opposition of respondent No. 5). 7. The learned counsel for the petitioner has submitted that as per the Model 100 point roster envisaging 80% reservation for APST candidates and 20% for the un-reserved, appended to the notification dated 21.09.2000, first four posts were for reserved category and the fifth post was earmarked as un-reserved and accordingly, it envisaged that 5th, 10th, 15th, 20th, etc., was ear-marked for un-reserved category candidates. Thus, it is submitted that if there are 5 posts and the first candidate is a non-APST candidate, the first four posts would be filled up by APST candidates and the non-APST candidate would be occupying the fifth post ear marked for un-reserved category. It is submitted that originally there was one post of AC (TE) and later on two posts of AC (TE) was created. Thus, under the erstwhile 50-50 percent regime, till Tagu Koyu, who was immediate junior to the respondent No. 5 was promoted, the petitioner had no grievance as there was no infirmity in his promotion. However, when Post Based Roster system was introduced vide notification dated 15.10.2010, under clause 5 thereof, it was provided that whenever there is any increase or decrease in the cadre strength, the roster was required to be correspondingly expanded and contracted. However, when Post Based Roster system was introduced vide notification dated 15.10.2010, under clause 5 thereof, it was provided that whenever there is any increase or decrease in the cadre strength, the roster was required to be correspondingly expanded and contracted. Heavily relying upon clause 6 and 8 thereof, it is submitted that it was sufficiently clarified therein that if the earlier appointee in the cadre belonged to APST against point No. 1 of the roster, the remark "utilized by APSP" was to be entered and that if the second appointee was a general category candidate, the remark "utilized by general category" against point No. 5 was to be entered against point No. 2, being re-served point and point No. 5 would be remarked "transferred to reserved point" and so on and so forth till all appointments are adjusted in the respective roster. Thus, it is submitted that the Post Based Roster was required to be considered on the basis of cadre strength and accordingly, as one Tapas Dutta, a general category candidate had already come into the list, his roster point being under point No. 5, the position of respondent No. 5 would shift to Sl. No. 10 in the roster. 8. The learned senior Govt. advocate has submitted that the 80-20 percent reservation must apply prospectively because the general category candidate, namely, Tapas Dutta, who was already promoted under the 50-50 percent regime, cannot be pushed back to Sl. No. 5 in the cadre strength of 12AC(TE), as it exists now. By referring to note sheet of DPC (annexed at pp. 73 of the writ petition), it is submitted that under 80-20 percent regime, in the cadre strength of 6, four posts would be for reserved category and 2 posts would be available for un-reserved or general category and therefore, as Tapas Dutta was already there, the sixth post was rightly given to the respondent No. 5. 9. The respondent No. 5 (in person), has opposed the writ petition and she has also submitted her written argument, which is kept on record. She has submitted that as per OM dated 15.10.2010, out of three posts, one would be occupied by the un-reserved candidate. It is submitted that this proposition was also the understanding of the DPC, and in this regard, she has referred to the DPC dated 17.07.2018. She has submitted that as per OM dated 15.10.2010, out of three posts, one would be occupied by the un-reserved candidate. It is submitted that this proposition was also the understanding of the DPC, and in this regard, she has referred to the DPC dated 17.07.2018. She has also referred to OM dated 13.11.2018, where point No. 6 has been shown as un-reserved. It is submitted that out of 6 (six) posts, first three posts were filled up during 50-50 Vacancy Based Roster regime and the fourth, fifth and sixth posts were to be filled up in compliance to the 80-20 Post Based Roster regime. Accordingly, by referring to OM dated 13.11.2018, it is submitted that as the sixth post is unreserved, the respondent No. 5 has justified her appointment on the basis of seniority and merit. It is submitted that the petitioner is wrongly interpreting the Post Based Roster because as per the Model Roster, fifth point is reserved and the sixth point is unreserved and, as such, it is submitted that the respondent No. 5 cannot be pushed down to point No. 10 in the roster, which would make her junior to the petitioner, which would also compromise her seniority over the petitioner. By referring to the note sheet appended to the DPC, and annexed in the writ petition, it is submitted that the draft roster was forwarded by the Department of Tax & Excise to the Administrative Reforms Department, who had given its advise, which is at pp. 75 of the writ petition, by which the State respondents had proceeded to promote the respondent No. 5 and placed her at roster point No. 6. Thus, the respondent No. 5 has prayed for dismissal of the writ petition. 10. It appears to the Court that in order to appreciate the issue of reservation as raised in this writ petition, the following OM's are required to be perused, viz., (i) OM dated 15.10.2010, (ii) OM dated 06.03.2013, and (iii) OM dated 13.11.2018. 11. The learned counsel for the petitioners, learned senior Govt. advocate and the respondent No. 5 are ad idem on the point that as of now there are 12 (twelve) posts of AC (TE). Thus, the present cadre strength of AC (TE) is 12. Under the 80-20 Post Based Roster regime, in a cadre of 12 posts of AC(TE), reservation for the reserved class cannot exceed 80%. advocate and the respondent No. 5 are ad idem on the point that as of now there are 12 (twelve) posts of AC (TE). Thus, the present cadre strength of AC (TE) is 12. Under the 80-20 Post Based Roster regime, in a cadre of 12 posts of AC(TE), reservation for the reserved class cannot exceed 80%. Thus, 80% of 12 being 9.6, the reservation for APST candidate can only be 9 and, as such, it appears that there would be 3 (three) posts for un-reserved class or general category candidate. 12. It is seen from the contents of the OM dated 13.11.2018 that the same was issued to clarify the confusion that had persisted in various appointing authorities. In para-2 of the said OM, it is provided as follows:- The method for making a roster is to multiply each post by the prescribed percentages of reservation for the different reserved categories. The fraction in respect of Reservation quota is ignored(even if it is 0.9). For example in a Cadre comprising of 11(Eleven) posts, the total post to be filled up by reserved category candidates would be 8% of 11 posts come to 8.80 (11 x 80% = 8.80) is not rounded off to 9 (nine) because the total Reservation cannot exceed 80% of the posts (9 of 11=81.8% which is more than 80%). 13. In the same OM, at para-4, the "Model Roster of reservation with reference to posts for promotion and direct recruitment" is provided. Although the said model roster is for 100 points, as in the present case, we are dealing with 12 posts available in the cadre of AC(TE), only 12 roster points, as contained in the said OM are quoted below:- Sl. No. of post No. of post X 80% reservation Reserved for APST Un-reserved Category of which the post should be earmarked 1 1x80%=0.8 0 1 Un-reserved 2 2x80%=1.6 1 - Reserved 3 3x80%=2.4 2 - Reserved 4 4x80%=3.2 3 - Reserved 5 5x80%=4.0 4 Reserved 6 6x80%=4.8 - 2 Unreserved 7 7x80%=506 5 - Reserved 8 8x80%=6.4 6 - Reserved 9 9x80%=7.2 7 Reserved 10 10x80%=8.0 8 - Reserved 11 11x80%=8.8 - 3 Un-reserved 12 12x80%=9.6 9 - Reserved 14. From the submissions made by all the three sides, there is no dispute that from amongst the persons already appointed and posted as AC(TE), Tapan Dutta was the unreserved or general category candidate, who was at Sl. No. 3 of Final Seniority List accompanying order dated 23.12.2009. Thus, in order to place persons in the Post Based Roster, there would be a notional placement of Tapan Dutta (un-reserved) in roster point No. 1, not- with standing his position in the seniority list. Accordingly, the 4 (four) reserved APST candidates, would be required to be placed at Post Based Roster Point No. 2 to 5, as such, the Roster Point No. 6 under 80-20 Post Based Roster would become entitled to be filled up by un-reserved category candidate i.e. respondent No. 5 in terms of the OM dated 13.11.2018. Thus, this Court does not find any infirmity in the appointment and posting of the respondent No. 5 vide the impugned order dated 12.10.2018 or by her placement at Post Based Roster Point No. 6 (un-reserved). 15. In the considered opinion of the Court, the OM dated 13.11.2018, being clarificatory in nature, would prevail over the previous OM's dated 15.10.2010 and 06.03.2013. 16. In light of the said finding arrived by the Court, this writ petition fails and the same is dismissed. However, the parties are to bear their own cost.