WP(C) 3773/2010 BEFORE HON’BLE MR. JUSTICE B. K.SHARMA 1. All the writ petitions pertaining to the same issue, i.e. the pr omotion and seniority in the post of Addl. Chief Engineer in the Water Resources Department, Govt. of Assam, have been heard together and are being disposed of by this common judgment and order. 2. At the very outset, upon hearing the learned counsel for the parties, al though it was pointed that all the cases are governed by the earlier decisions o f this Court reported in 2007 (4) GLT 587 (Khaninder Nath Choudhury vs. State of Assam and others) and 2010 (3) GLT 377 (Bhogeswari Saikia vs. State of Assam an d others), it was argued by the contesting counsel that their being distinctive features involved in the writ petitions, it is possible to take a different vie w of the matter. 3. The brief facts leading to the filing of the writ petitions are as follo ws: W.P. (C) No. 3773/2010 4. The four writ petitions involved in this writ petition are aggrieved by the recommendation of the selection committee dated 20.05.2010 recommending the respondent No. 4 and 5 for promotion to the post of Addl. Chief Engineer. The ca dre strength of the Addl. Chief Engineer is 7 (seven) and the promotion to the said cadre is governed by the Rules called the Assam Engineering (Flood Control Department) Services Rules, 1981. In the seniority list of feeder cadre publish ed on 11.03.2010, the names of the petitioners appeared at serial No. 4, 5, 6, a nd 7 and that of the respondent Nos. 4 and 5 at serial Nos. 14 and 15 respective ly. As per the provisions of the Assam Scheduled Castes and Scheduled Tribes (Re servation of Vacancies in Services and Posts) Act, 1978 and the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Rul es, 1983, there is reservation for reserved category candidates both for direct recruitment and promotion to the extent as follows: i) Scheduled Castes - 7% ii)Scheduled Tribes (P)- 10% iii)Scheduled Tribes (H)- 5% 5. Based on the aforesaid percentage of reservation, the petitioners have c alculated the number of posts that can be reserved for reserved category candida tes in the cadre of Addl. Chief Engineer comprising of 7 posts, which are as fol lows: i) Scheduled Castes - 7% - 0.49 ii) Scheduled Tribes(P) - 10% - 0.7 iii) Scheduled Tribes (H) - 5% - 0.35 6. On the basis of the aforesaid calculations, the petitioners have contend ed that there can be no reservation for any category inasmuch as in case of prov iding reservation in the cadre of Addl. Chief Engineer comprising of 7 posts, sa me would exceed the percentage of reservation earmarked in the aforesaid Act an d Rules. 7. The petitioners have also placed reliance on the Annexure -3 office memo randum dated 14.07.2004 on the subject of implementation of the aforesaid Act an d the Rules for filling up backlog vacancies for Scheduled Castes and Scheduled Tribes thereof in which the fact of noticing of carrying forward the backlog as well as the current vacancies even to the extent beyond the permissible entitled quota for Scheduled Tribes (P), Scheduled Tribes (H) and Scheduled Castes which have shown exaggerated figures for reserved categories, was conveyed. By the s aid office memorandum, the appointing authorities were requested to carry out a review for correct assessment of backlog/current vacancies in respect of said r eserved category candidates both for direct recruitment and promotion. 8. By Annexure-4 representation dated 26.05.2010 made by the Assam Engineer ing Services Association to the Chief Secretary of the State bringing on records the aforesaid facts, it was contended that no candidates belonging to reserved categories is entitled to be considered for promotion on the basis of the reserv ation as the percentage of reservation did not permit them to be so considered. W.P. (C) No. 4137/2010 9. This writ petition has also been filed by the four writ petitioners invo lved in the first writ petition. In this writ petition, they have challenged the Annexure-4 select list dated 12.07.2010 so far as the same recommends the respo ndent Nos. 4 and 5 for promotion to the cadre of Addl. Chief Engineer on the bas is of reservation. W.P. (C) No. 1897/2009 10. In this writ petition, the petitioner has challenged the Annexure-C offi ce memorandum dated 12.03.03 with further prayer not to finalize the provisional gradation list of Executive Engineer (Civil) till such time the matter is final ly adjudicated upon. The petitioner has also challenged the Annexure-D gradation list dated 06.09.2008 by which a provisional gradation list in the cadre of Exe cutive Engineer (Civil) was published calling for objection, if any. The said gr adation list has been prepared taking into account Annexure-C office memorandum dated 12.03.2002 issued by the Govt. of Assam in the Department of Personnel by which it has been provided that the SC/ST Govt. servant on their promotion by v irtue of rules of reservation/roster will be entitled to consequential seniority and such decision would be effective from 17.06.95. Be it stated here that the petitioner a general category candidate is aggrieved by fixation of seniority of the respondent No. 4, a reserved category candidate above him in terms of the s aid provision in the impugned office memorandum dated 12.03.2002 in terms of whi ch the respondent No. 4 was given seniority above the petitioner alongwith accel erated promotion as a reserved category candidate. Be it stated here that in th e provisional gradation list while the petitioner’s name appears at serial No. 3 0, that of the respondent No. 4 appears at serial No. 23. W.P. (C) No. 4790/2009 11. As in the above writ petition, in this writ petition also the petitione r has challenged the fixation of seniority of the respondent No. 4 above him an d has also challenged the promotion of the respondent No. 4 to the post of Super intending Engineer vide Annexure-H order dated 27.10.09. Such promotion has been effected on the basis of consequential seniority given to the respondent No. 4 which is under challenged in the 3rd writ petition, i.e. W.P.(C) No. 1897/2009 12. I have heard Mr. U.K. Nair, learned counsel for the petitioners in W.P.( C) No. 3773/2010 and W.P.(C) No. 4137/2010. I have also heard Mr. A.K. Bhattacha ryya and Mr. D.K. Mishra, learned Sr. counsel appearing for the private responde nts in the said two writ petitions. Mr. D.K. Das, learned counsel argued on beha lf of the petitioners in W.P.(C) No. 1897/09 and W.P.(C) No. 4790/09. I have als o heard Mr. B. Goswami, learned Standing counsel, Water Resources Department as well as Ms. R. Chokraborty, learned Addl. Sr. Govt. Advocate. 13. Mr. U.K. Nair, learned counsel for the petitioner in W.P. (C) No. 3773/2 010 and W.P.(C) No. 4137/2010 referring to the decision of this Court in Khanind er Nath Choudhury (supra), submitted that as in the said case in which promotion al cadre consists of only four posts, in the instant case also the cadre of the Additional Chief Engineer being consisted of only seven posts, taking into accou nt the percentage of reservation, there is no question of making promotion of re served category candidates providing reservation as no such reservation is permi ssible within the prescribed percentage of reservation. 14. Mr. A.K. Bhattacharyya, learned Sr. counsel appearing for the respondent No. 5, upon a reference to the minutes of the selection committee held on 20.05 .2010, submitted that irrespective of the percentage of reservation, the said re spondent having excelled in the selection on the basis of the marks obtained by him as per the gradation earned in the ACRs, he is entitled to get promotion on the basis of the said recommendation. 15. Supporting the impugned decision of the selection Board, Mr. B. Goswami, learned Standing counsel, Water Resources Department submitted that the decisio n of the selection Board providing reservation to the reserved category candidat es on the basis of the reservation roster cannot be faulted with. Ms. R. Chokrab orty, learned Addl. Sr. Govt. Advocate also contended that having regard to the reservation roster irrespective of the percentage of reservation, the reserved c ategory candidates are required to be considered as per the said reservation ros ter and such consideration having been made by the select ion Board, no fault ca n be attributed to the decision arrived at by it. 16. Mr. D.K. Mishra, learned Sr. counsel appearing for the respondent No. 4 in W.P.(C) No. 3773/2010 and W.P.(C) No. 4137/2010 made altogether a different s ubmissions. The bone of contention of his argument is that if the percentage of reservation in each of the category which is SC-7%, ST(P)-10% and ST(H)-5%, are clubbed together, then the total percentage of reservation comes to 22%. Accord ing to him, in a cadre of seven posts, based on the said percentage of reservati on, i.e. 22%, the posts available being 1.54, two posts are required to be earm arked for the reserved category candidates irrespective of any particular catego ry of reserved candidates. According to him, the said two posts are required to be routed for and filled up through reserved category candidates by operation of roster. He has placed reliance on the decisions reported in (2005) 2 SCC 10 ( S tate of U.P. vs. Pawan Kr. Tiwari); (1995) 2 SCC 745 (R.K. Sabharwal vs. State o f Punjab); (2006) 8 SCC 212 (M. Nagraj vs. Union of India) and (2008) 10 SCC 382 (Siv Prasad vs. Govt. of India and ors.) 17. I have considered the rival submissions made by the learned counsel for the parties and have also gone through the entire materials on record. I have a lso considered the decisions on which the learned counsel for the parties have p laced reliance in consideration of which my decisions in the writ petitions are as follows: W.P.(C) No. 1897/2009 W.P.(C) No. 4790/2009 18. The issue involved in both the writ petitions is one and the same. In bo th the writ petitions the sole contention of the petitioners is that the respond ent No. 4, a reserved category candidate (SC), who was junior to him could not h ave been given consequential seniority above him on the strength of accelerated promotion and consequently could not have been promoted to the rank of Superint ending Engineer. In this connection, he has challenged the office memorandum dat ed 12.03.2002 (Annexure -C), which provides for consequential seniority to the r eserved category candidates (SC/ST) on their promotion by virtue of rules of res ervation /roster. 19. The above office memorandum was also put to challenge in W.P.(C) No. 153 2/09 (Bhogeswari Saikia vs. State of Assam and ors.). According to the petitione r, Article 16 (4) (A) of the Constitution of India only enables the State to mak e provision for reservation in the matter of promotion with consequential senior ity but it does not lay down, even by implication that the reserved category emp loyees shall be entitled to the benefit of accelerated seniority as a matter of right, in the absence of any specific statutory provision in this regard. In thi s connection, the petitioner has referred to the provisions of the aforesaid Act and the Rules and also Assam Engineering (Flood Control Department ) Services R ules 1981. In Bhogeswari Saikia (supra) this Court dealing with the same very c ontention while upholding the aforesaid office memorandum dated 12.3.02 has obse rved thus: 44. The whole controversy has arisen in view of the particular interpretation g iven by the petitioners that unless a law is framed, merely on the strength of a n OM like the one dated 12.03.2002 and/or without amending the recruitment rules or making any provision to supplement the said rules, the reserved category can didate cannot be given consequential seniority. Thus, the issue raised is on tec hnicalities. 45. Article 16(4)(A) enables the State to make provision for reservation with co nsequential seniority. Such provision can be laid down by Office Memorandum as h as been done in the instant case. The whole emphasis of the petitioners is on L aw and Rules and not on provisions . Once it is held that the State is empower ed to make a provision and the source of its power is traceable and discernible, irrespective of the technicalities raised by the petitioners, I am of the consi dered opinion that the implementation of the decision of the State Government to grant consequential seniority to the reserved category candidates in the form o f the impugned OM dated 12.03.2002, is sustainable in law. 20. Above being the position, there is no infirmity in providing consequenti al seniority to the respondent No. 4 on his accelerated promotion as a reserved category candidate which consequently made him eligible for promotion to the cad re of Superintending Engineer. 21. In view of the above, I do not find any merit in the aforesaid two writ petitions, namely W.P.(C) No. 1897/2009 and W.P.(C) No. 4790/2009. Consequently both the writ petitions stand dismissed. W.P.(C) No. 3773/2010 W.P.(C) No. 4137/2010 22. If we go by the decision in Khaninder Nath Choudhury (supra) , these wri t petitions will have to be allowed by interfering with the decision of the sele ction committee towards recommending the respondent Nos. 4 and 5 as reserved cat egory candidates (both SC). However, while Mr. A.K. Bhattacharyya, learned couns el for the respondent No. 5 argued that irrespective of such reservation, the sa id respondent is entitled to get promotion on the strength of marks obtained by him in the selection, Mr. D.K. Mishra, learned counsel appearing for the respond ent No. 4 made altogether a different submission which has been noted above. 23. As to what will be the percentage of reservation based on the percentage of reservation provided for in the aforesaid Act of 1978 under different catego ries has been noted above, a position which has been admitted by all the respond ents. Taking into account the total percentage of reservation in each of the cat egories vis-à-vis the total cadre strength in the cadre of Addl. Chief Engineer which is seven, the permissible quota/percentage for the three reserved catego ries, i.e. SC; ST(P) and ST(H) comes to 0.49, 0.7 and 0.35 respectively. Thus no post can be reserved for any of the reserved category candidates, more particul arly for SC candidates. However, Mr. Mishra, learned counsel for the respondent No. 4 as noted above, argued that clubbing together the entire percentage of res ervation for all the three categories which comes to 22% providing quota of 1.54 % to reserved category candidates, by operating roster of reservation, the reser ved category candidates in each of the categories as per their turn should be pr ovided promotion. It is in this context, he has placed reliance on the aforement ioned decisions which are discussed below: 24. In Pawan Kumar Tiwari (supra), the Apex Court dealing with the manner of treatment of fraction of a vacancy in the context of prescribed percentage of g eneral and reserved categories, held that faction even one-half or more should b e treated as one and if less than one-half , it should be ignored. However, in c ase of reserved vacancies, if conversion of one-half or more into one leads to t he reserved vacancies exceeding 50% of the total vacancies, it would be unconst itutional and so has to be ignored. Thus, on the facts of the said case such con version was allowed for the general category, but not for the reserved category candidate. This case being one of application of prescribed percentage to genera l and reserved categories and as to how the fraction of a vacancy is to be treat ed, is of no help to the case of the respondent No. 4 that although percentage o f reservation is applicable to each of the categories, they are required to be c lubbed together to provide a composite percentage of reservation towards operati ng the roster. 25. The decision in R.K. Sabharwal (supra) has been pressed into service to contend that the total cadre strength can be taken into consideration in the mat ter of promotion as a unit to which there cannot be any dispute. Thus, the unit being the cadre of Addl. Chief Engineer, percentage of reservation as envisaged in the aforesaid Act is required to be applied. What has been emphasized in the said decision is that when all the roster points in a cadre are filled, the requ ired percentage of reservation is achieved. Once the total cadre is filled repre senting all the SC/ST and backward classes in accordance with reservation policy , then the vacancies arising thereafter in the cadre are to be filled from among st the category of persons to which the respective vacancies belong. Nowhere in the judgment there is any indication that compartmentalized reservation for dif ferent categories of reserved candidate can be clubbed together towards operatin g the roster providing reservation to each one of the categories. 26. In M. Nagraj (supra) on which Mr. Mishra has placed reliance, the Apex C ourt inter alia held that the appropriate Govt. is to apply the cadre strength a s a unit in the operation of the roster in order to ascertain whether given clas s/group is adequately represented in service. It was also observed that the cadr e strength as a unit also ensures that upper ceiling limit of 50% is not violate d. Further roster is to be post specific and not vacancy basis. Thus, in this ca se also the emphasis is on the application of the cadre strength as a unit for t he purpose of operation of roster in order to ascertain as to whether percentage of reservation as envisaged in the Rules has been achieved or not. Nowhere in t he judgment the emphasis is on the application of percentage of reservation for the different categories as a unit towards operating the roster. Thus, this case is also of no help to the case of the respondent No. 4. 27. In Shiv Prasad (supra), the Apex Court dealing with the question how can the women’s reservation be implemented and enforced and whether such reservatio n will exceed 50% reservation which is maximum, answered the question in negativ e. There was 20% reservation for women and 3 (three) posts were filled in, which came to 0.6%, i.e. more than 0.5%. In the said fact situation, it was held that 1 (one) post had to be horizontally reserved for a woman candidate. It is not u nderstood as to how this case can be of any help to the case of the respondent N o. 4. 28. In Khaninder Nath Choudhury (supra) dealing with a similar situation, it has been held that in a category consisting of four posts taking note of the af oresaid percentage of reservation earmarked for each of the categories of reserv ed candidates, there cannot be any reservation. 29. In R. S. Garg Vs. State of U. P. reported in (2006) 6 SCC 430, the Apex Court dealing with a similar situation in which there were 6 posts and the rese rvation was to be confined to 21%, held that if the roster was to be followed, 2 posts would be reserved for SC candidates, which is impermissible. In paragraph 40 of the judgment, the Apex Court observed thus : \we are not concerned with the reasonableness or otherwise of the percentage of reservation. 21% of the posts have been reserved for the Scheduled Caste candida tes by the State itself. It, thus, cannot exceed the quota. It is not disputed t hat in the event of any conflict between the percentage of reservation and the r oster, the former shall prevail. Thus, in the peculiar facts and circumstances o f this case, the roster to fill up the posts by reserved category candidates, af ter every 4 posts, in our considered opinion, does not meet the constitutional r equirements. \ 30. This Court in Manoj Kumar Roy Vs. State of Assam reported in 1998 (2) G LT 421 under similar circumstances held that the percentage of reservation being below the minimum fraction required, the SC candidate was not entitled to get a ppointment as a reserved category candidate. 31. In State of Punjab Vs. Harcharan Singh reported in (1998) 4 SCC 01, the question before the Constitution Bench was, whether in a single cadre post, res ervation for SC, ST and OBC’s can be applied either directly or through the rost er, in which vacancies are rotated amongst general category and reserved categor y candidates. The Apex Court observed that in a single post cadre, reservation a t any point of time on account of rotation of roster is bound to bring about a s ituation where such a single post in the cadre will be kept reserved exclusively for the members of the backward classes and in total exclusion of the general m embers of the public, which is impermissible. This principle is equally applicab le to the case in hand where the cadre of Superintendent consist of only 4 posts . This being the position, the argument advanced by the learned State Counsel as well as by the learned counsel for the respondent No. 3 that by operation of ro ster, reservation will have to be applied cannot be accepted. 32. In view of the above, the argument advanced by Mr. Mishra, learned couns el appearing for the respondent No. 4 merits no acceptance. This now leads us to the argument advanced by Mr. A.K. Bhattacharyya, learned counsel appearing for the respondent No. 5 that irrespective of any reservation provided to the said r espondent he is entitled to get promotion on the strength of marks obtained by h im in the selection. 33. To answer the above issue, a little discussion will be required in respe ct of the minutes of the meeting held on 20.05.2010. As per the said minutes, in the cadre of Add. Chief Engineer consisting of seven posts, the Board decided to prepare a select list of 10 Superintending Engineers for promotion. Applying the provisions of the Rules, although 20 numbers of officers in the category of Scheduled Castes were to be considered, but there being only 15 such officers, t heir cases were considered. Taking note of the seniority positions, the petition ers were placed at serial No. 4, 5, 6 and 7 respectively while the respondent No s. 4 and 5 were placed at serial No. 14 and 15. The selection Board although too k note of the total cadre strength and the percentage of reservation for each of the categories and the quota of promotion arrived at on that basis, but also to ok note of purported backlogs of reserved categories as follows: ST(P) - 7 SC - 4 ST(H)- 3 34. The minutes of the selection Board reveals that there are no officers in the cadre of Addl. Chief Engineer (Civil) belonging to reserved categories. The Board also took of the fact that amongst 15 eligible candidates there was no ST (P) and ST(H) candidates and that the two SC candidates available were the resp ondent Nos. 4 and 5. Consequently the Board took a decision to fill up two backl og vacancies of SC. 35. After the aforesaid decision to provide promotion to two SC candidates a gainst the backlog vacancies, the Board examined the ACRs and other service reco rds of the Officers within the zone of consideration for the last five years. On the basis of the guidelines which are outstanding (4 marks), very good (3 marks ), good (2 marks) and average (1 mark), the Board classified