Shri Binod Kumar Agarwala vs State Of Assam

Heard Mr. U.K. Nair, the learned Sr. counsel appearing for the 3 petitioners. Also heard Dr. B. Ahmed, the learned standing counsel appearing for

the Cooperation Department, representing the respondent Nos.1â€"4. The contesting respondent Nos.5 and 6 are represented by Mr. M.K. Bora, the

learned counsel.

The 3 petitioners were under consideration for promotion to the cadre of Joint Registrar but were overlooked and instead two reserve category

aspirants were considered. Accordingly the decision of the selection committee which recommended the promotion on 18.08.2007 (Annexure-D) and

the consequential promotion order dated 07.11.2007 (Annexure-E) in favour of Aswini Kumar Baishya and Ghana Pegu (respondent Nos.5 and 6),

are being analogously challenged by the three aggrieved aspirants.

The petitioners entered service as Asstt. Registrar in 1992 on selection made by the APSC and subsequently each of them were promoted to the

cadre of Deputy Registrar on 20.04.1998, 22.04.1998 and 08.05.1998, respectively. On the other hand, the respondent Nos.5 and 6 entered service as

Asstt. Registrar in the year 1993. In the gradation list of Asstt. Registrar as on 10.02.1995 (page-34), the petitioners were placed at Sl. Nos.39, 40 and

42, whereas the two private respondents were placed below them at Sl. Nos.47 and 48, respectively. It may be noted that while the petitioners belong

to the general category, the rival litigant Aswini Kumar Baishya (respondent No.5) is a Scheduled Caste (SC) category person and the 6th respondent

Ghana Pegu belong to the ST(P) category.

The selection committee which met on 18.08.2007 (Annexure-D) was considering promotion to 4 vacancies of Joint Registrar of Cooperative

Societies and the 12 persons in the feeder cadre (including the petitioners and the respondents), were under consideration of the committee. Two of

the vacancies had occurred earlier in the year 2004, but they were clubbed together with the two vacancies which became available in 2007.

The committee looked at the roster points and the backlog vacancies and on this basis, Aswini Kumar Baishya of the SC category, was considered

against the roster point No.32. Similarly, the ST(P) category candidate Ghana Pegu was considered against a backlog vacancy. Through such process,

the two junior Deputy Registrars (respondent Nos.5 and 6) were recommended for promotion by the selection committee, which led to the issuance of

the impugned notification dated 07.11.2007 (Annexure-E).

Assailing the deprivation of the three senior Deputy Registrars, the learned Sr. counsel Mr. U.K. Nair firstly submits that 7 is the total cadre

strength of Joint Registrar in the Cooperation Department. The Assam Scheduled Caste and Scheduled Tribe (Reservation of Vacancies in Services

and Posts) Act, 1978 (hereinafter referred to as the “Reservation Actâ€) and the Assam Scheduled Caste and Scheduled Tribe (Reservation of

Vacancies in Services and Posts) Rules, 1983 (hereinafter referred to as the “Reservation Rulesâ€), provides for reservation for direct recruitment

and promotion, to the extent of 7% for Scheduled Caste, 10% for Scheduled Tribe (P) and 5% for Scheduled Tribe (H). Referring to such percentage

of reservation, the petitioners argue that when the cadre strength of Joint Registrar is limited to 7 posts, the calculation of percentage of reservation to

the required extent of 0.49, 0.7 and 0.35 for the SC, ST(P) and ST(H) categories, is totally unworkable. In this context the counsel projects that in the

event of providing reservation, the same would exceed the earmarked percentage provided by the Reservation Act and the Rules. Therefore the Sr.

counsel argues that the selection committee misdirected itself by considering promotion of the respondents, against roster point and backlog vacancies.

On the other hand, Dr. B. Ahmed, the learned standing counsel for the Cooperation Department submits that the roster register is maintained in the

department and the selection committee proceeded to consider promotion to the cadre of Joint Registrar with reference to the roster point, under the

Reservation Act and the Rules. On this basis, the promotion granted to the 2 reserved category aspirants (respondent Nos.5 and 6), is supported by

the departmental lawyer.

The learned counsel Mr. M.K. Bora appears for the private respondents and apart from supporting the submission of the departmental lawyer, the

counsel submits that the respondents were promoted in the year 2007 and during the pendency of this case, the petitioners have also been promoted to

the cadre of Joint Registrar and accordingly the counsel makes a fervent plea to not to disturb the promotion granted in the year 2007.

Before proceeding further it needs be stated that this case was decided earlier on 24.09.2013 in favour of the petitioners, but when the aggrieved

respondents filed the Review Petition Nos.155/2013 and 156/2013 respectively, the learned Judge reversed his decision under the judgment dated

23.01.2014 and directed for fresh hearing of the case.

In course of adjudication of a similar case in the Water Resources Department, in Deba Kumar Dutta Vs. State of Assam reported in 2011(3)

GLT 387, this court considered the feasibility of providing reservation for the backward category aspirants under the Reservation Act and the Rules

when the cadre strength was limited to 7 posts, in the rank of Addl. Chief Engineer. In this context, after discussing the impracticability of applying the

roster principle for the limited number of vacancies in the cadre, the learned Judge made the following pertinent observation:-

“………………………………

It will have to be borne in mind that the percentage of reservation as noted above, i.e. 7% for SC, 10% for ST(P) and 5% for ST(H) is not only

applicable for the vacancies to be filled up by direct recruitment (see Section 4 of the Act, 1978), but the said percentage of reservation is also

applicable for vacancies to be filled up by promotion (See Section 5 of the Act, 1978). Although a separate 20 point roster is given in the Schedule to

the Act to be maintained, but as has been held by the Apex Court in R.K. Sabharwal (supra), when a percentage of reservation is fixed in respect of a

particular cadre and the roster indicates the reservation points, the posts shown on the reserved points are to be filled from the amongst reserved

categories. However, operation of the roster will have to be in reference to prescribed percentage of reservation. The prescription being operation of

the roster till the required percentage is achieved, in absence of any quota on the basis of the prescribed percentage, there is no question of operating

the roster to achieve impermissible percentage of reservation.

Above being the position, I am of the considered opinion that taking into account the respective percentage of reservation earmarked for all the

three categories, no reservation of vacancies can be provided to the private respondents and consequently their selection on that basis is liable to be

interfered with. …………………………………………â€​

The above conclusion of the writ court, on challenge being made by the affected party through the WA No.39/2011 (Pabitra Hazarika Vs. State of

Assam), was upheld by the Division Bench through its judgment dated 28.06.2013. The Division Bench concurred with the learned Single Judge and

gave their verdict against the reserved category aspirants. Consequently, the Court interfered with the recommendation made in favour of the private

respondents and set aside their promotion to the cadre of Addl. Chief Engineer, in the Water Resources Department.

When the facts and circumstances in this case are compared with the decided case where the cadre strength is limited to 7 posts, the inevitable

conclusion is that reservation principles will not apply here, by application of roster. Proceeding with this understanding, the recommendation made by

the selection committee on 18.08.2007 in favour of respondent Nos.5 and 6 and the consequential promotion granted to them on 07.11.2007, are found

to be unmerited. But by now many years have gone by and during the pendency of this case, all 3 petitioners have also been promoted to the cadre of

Joint Registrar and therefore as on date, all parties are serving in the same cadre in the Cooperation Department. Situated thus, one must ponder

whether the promotion should be disturbed after so many years, particularly when Mr. Nair does not press for reversion.

But even then to prevent injustice for the petitioners who were deprived earlier, the Court needs to examine whether the private respondents

promoted against reserved category vacancies, should continue to enjoy seniority over the petitioners, who were overlooked at the relevant time. To

resolve this issue, we can refer to the ratio in B.K. Pavitra Vs. Union of India reported in (2017)4 SCC 620, where the Supreme Court was

considering cases of SC/ST candidates who were promoted early and were accordingly enjoying consequential seniority, above the general category

who came to the higher cadre on a later date. In this judgment, the Court analysed the consequences of accelerated seniority to the roster point

promotee and observed that this would result in reverse discrimination, in course of time. The Court also referred to the earlier judgments in M.

Nagaraj Vs. Union of India reported in (2006)8 SCC 212 and S. Panneer Selvam Vs. State of Tamil Nadu reported in (2015)10 SCC 292 and stated

that the exercise for determining “inadequacy of representationâ€, “backwardness†and “overall efficiency†is mandatory for exercise of

power under Article 16(4-A) and the mere fact that there is no proportionate representation for SC/ST category in the promotional post, will not itself,

be enough to grant consequential seniority to the promotees who are otherwise junior and thereby denying seniority to those who are given promotion

later on account of reservation policy. It was accordingly held in B.K. Pavitra (supra) that-

“……………. Plea that persons promoted at the same time were allowed to retain their seniority in the lower cadre is untenable and ignores the

fact that a senior person may be promoted later and not at same time on account of roster point reservation. Depriving him of his seniority affects his

further chances of promotion. Further plea that seniority was not a fundamental right is equally without any merit in the present context. In absence of

exercise under Article 16(4A), it is the ‘catch-up’ rule which is fully applies. It is not necessary to go into the question whether the concerned

Corporation had adopted the rule of consequential seniority.â€​

When we apply the above ratio of B.K. Pavitra (supra) to the facts of the present case, the inevitable conclusion is that the respondent Nos.5 and

6 who were promoted earlier by application of the Reservation Act and the Rules, must cease to enjoy seniority in the cadre of Joint Registrar above

those in the general category, who were senior to them in the feeder cadre. As earlier decided, because of long continuation of the respondents in the

promoted posts of Joint Registrar, reversal of promotion is considered to be harsh and as such the same is not ordered. However that does not mean

that the private respondents should continue to enjoy seniority over the petitioners in the cadre of Joint Registrar, by virtue of their earlier promotion as

reserve category aspirants. Having decided thus, the inter-se seniority of the petitioners vis-Ã -vis the respondents are directed to be revised by

placing the petitioners above the private respondents in the cadre of Joint Registrar of Cooperatives. It is ordered accordingly.

With the above order, the case stands allowed. No cost.