Nizara Ramchiary vs State Of Assam And 5 Ors

1) Heard Mr. B. Ramchiary, the learned advocate for the petitioner. Also heard Mr. N. Goswami, learned Govt. Advocate for the respondent Nos.1, 4 and 5, and Mr. N.H. Borbhuiya, the learned counsel for the respondent No.6. None appears on call for the respondents No.3.

2) By this writ petition under Article 226 of the Constitution of India, the petitioner has challenged the impugned order under Memo No. CEIA/Estt-14/Pt/2002/143 dated 26.05.2015, passed by the Chief Electrical Inspector - Cum- Advisor, Govt. of Assam ('CEIA' for short), by which the respondent No.6 was promoted temporarily as Junior Assistant in Grade-III in the Head Quarter Office of the CEIA in "General Category" under Post Based Roster for reservation.

3) The case projected in the writ petition, in brief, is that on 14.06.1999, the petitioner had joined in the Office of the CEIA as Electrical Jugali, which is a Grade-IV post, but though the private respondent No.6 was appointed as Electrical Jugali in the same office about two years later, was promoted to the post of Junior Assistant, a Grade-III post. Hence, the aggrieved petitioner has approached this Court.

4) The learned counsel for the petitioner has submitted that the petitioner was the eligible senior most Grade-IV employee in the office and, as such, he questions the promotion of the junior to the post of Junior Assistant. It is submitted that notwithstanding that the petitioner belonged to a Schedule Tribe (Plain) reserved category, but being the senior most Grade-IV employee, the authorities ought to have accommodated the petitioner with promotion on merit in the general category. It is also submitted that the petitioner was appointed on compassionate ground and, as such, there was no impediment to treat her to be in the general category. In support of his submissions, the learned counsel for the petitioner has placed reliance on Rule 10(3) of the Assam Directorate Establishment (Ministerial) Service Rules, 1973 and on the case of State of Mysore & Anr. Vs. Syed Mahmood & Ors., AIR 1968 SC 1113.

5) Per contra, the learned Govt. Advocate and the learned counsel for the respondent No.6 have both submitted that the vacancy fell on point 3 of the "100 point post based roster", where the 3 rd vacancy was for general category. Hence, it is submitted that notwithstanding that the petitioner was junior to the petitioner, he was promoted because the vacancy was earmarked to be filled up by "general category" employee. By referring to the affidavit- in- opposition filed by the respondent No.5, it is submitted that the claim of the petitioner that she was the senior most Grade-IV employee was not correct because as per the "Inter-se Seniority List of Grade-IV Staff" in the Office of the CEIA, the name of the petitioner appeared at Sl. No.12, while the name of the respondent No.6 had appeared at Sl. No. 13, however, there were 11 other Grade-IV employees, who were placed senior to that of the petitioner.

6) At the outset, it would be relevant to mention herein that this Court, by order dated 22.02.2019, had directed the learned counsel for respondent No.5 to produce the relevant records by which the respondent No.6 was recommended and promoted to Grade-III post under the Inspectorate. Accordingly, on 12.03.2019, the learned Govt. Advocate had produced a copy of the minutes of DPC meeting held on 29.10.2012 of promotion to one post of Junior Assistant at the Head Quarter Office of the Office of the CEIA and two posts of Junior Assistant in the Office of the Senior Electrical Inspector, Silchar Zone, which was kept on record. The said minutes discloses that for filling up the single promotional post of Junior Assistant in CEIA, the DPC had considered three names, viz., (i) Smt. Nizara Ramchiary, (ii) Md. Hedayatullah Ahmed, (iii) Sri Nijwn Gayari. It is also seen that as per the notice dated 07.05.2013, the CEIA had invited applications from eligible candidates for filling of the Grade-II post of Junior Assistant, which reflects that the eligibility criteria was that one must have rendered 5 years of regular service if he/she had passed Higher Secondary or equivalent examination or must have rendered 7 years of regular service if he/she has passed Matriculation or equivalent examination, as such, on a perusal of the "Inter-se Seniority List of Grade- IV Staff" in the Office of the CEIA dated 08.10.2013, it prima facie appears that Grade-IV employees whose names appeared at Sl. No.1 to 11 thereof did not possess minimum prescribed educational qualification.

7) It would be relevant to refer to the provisions of Article 16 (4-A) of the Constitution, which reads as 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."

8) This Court in the case of Equality, Forum & Anr. Vs. The State of Assam & Ors., 2016 (1) GLT 710, had observed as follows:-

"41. Sub-Article (4-A) as it stands today 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.

At this stage, a brief reference to Article 335 of the Constitution may be made. Article 335 provides that claims of the members of SCs and STs in the making of appointments to services and posts in connection with the affairs of the Union or of a State shall be taken into consideration consistently with the maintenance of efficiency of administration. 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.

Constitutional validity of the Constitution (77th Amendment) Act, 1995, the Constitution (85th Amendment) Act, 2001 amongst others came up for consideration before the Apex Court in the case of M. Nagaraj (supra). The Constitution Bench of the Apex Court while upholding the constitutional validity of the aforesaid amending acts, however, held that Article 16 (4-A) is an enabling provision. If the State wants to provide reservation for SCs and STs in matters of promotion it has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. More about this in the later part of the judgment. At this stage, it would suffice to note that before providing for reservation in promotion, the State must examine and make assessment of the backwardness of the class and inadequacy of representation of that class in public employment, which must be consistent with the requirement of overall administrative efficiency by collecting quantifiable data. This position has been reiterated in the subsequent cases of Suraj Bhaan Meena (supra) & Uttar Pradesh Power Corporation Limited (supra).

In so far the State of Assam is concerned, the State had enacted the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978, providing for reservation of vacancies in services and posts for members of SCs and STs. Section 5 of the said Act provided for reservation for SCs and STs in vacancies to be filled up by promotion in the manner indicated therein. There would be reservation to the extent of 7 % for SC, 10 % for ST (P) and 5 % for ST (H). For this purpose, a roster of 20 (twenty) vacancies was provided. Rules have also been framed by the State Government to give effect to the provisions of the said Act.

Following the judgment in R.K. Sabharwal (supra), which ruled that reservation would be post-based and not vacancy based, the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) (Amendment) Act, 2012, has been enacted, amending the 1978 Act whereby instead of reservation in vacancies it has now been made reservation in posts though the percentage of reservation has been maintained. A separate post-based model of 100 point roster has also been provided."

9) In the above referred case of Equality, Forum & Anr. (supra), this Court had thoroughly examined the report of the One-Man-Commission constituted by the Government of Assam vide notification dated 24.10.2013 to study and acquire quantifiable data on the compelling conditions of backwardness of SCs and STs, inadequacy of their representation in various Government services and posts and overall efficiency in public administration because of reservation in promotion in the light of the decisions of the Apex Court in M. Nagaraj Vs. Union of India, (2006) 8 SCC 212, and U.P. Power Corporation Limited Vs. Rajesh Kumar, (2012) 7 SCC 1.

10) It is seen that the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978, which had previously provided for vacancy based reservation, has been amended in the year 2012 to provide for post-based reservation.

11) The Supreme Court of India in the case of U.P. Power Corporation Limited (supra), after in-depth analysis of the case of M. Nagaraj (supra), had culled out the following principles which are quoted herein below:-

"81. From the aforesaid decision in M. Nagaraj case and the paragraphs we have quoted herein above, 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 harmonised 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.

(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."

12) In light of the above quoted principles as laid down in the case of U.P. Power Corporation Limited (supra), more specifically contained in para 81(iii) quoted above, this Court is of the considered view that the decision rendered in the case of State of Mysore (supra), cited by the learned counsel for the petitioner, cannot be applied under the distinguishable facts and circumstances in light of Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978 (as amended in 2012), and the Schedule Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Rules, 1983 framed thereunder because in the present case in hand, the post which is sought to be filled up has been earmarked for promotion from amongst "general category" employee.

13) It is seen that in the "Inter-se Seniority List of Grade- IV Staff" in the Office of the Chief Electrical Inspector - Cum- Advisor, Govt. of Assam, the petitioner is shown to be an employee under Schedule Caste (P) category and moreover, in the present case in hand the vacancy in which the respondent No.6 had been promoted fell on point 3 of the "100 point post based roster" where the 3rd vacancy was for "general category", as such, in light of the discussions above, this Court is not inclined to accept the submissions made by the learned counsel for the petitioner that for the purpose of promotion, the petitioner ought to have been treated as if she was a "general candidate".

14) Thus, the petition fails and the same is dismissed. Consequently, rule issued by order dated 19.06.2017 stands discharged.

15) No cost.