WP(C) 3324/2007 BEFORE HON’BLE MR JUSTICE I A ANSARI JUDGEMENT AND ORDER (O R A L) Heard Mr. B. Goswami, learned counsel for the writ petitioners, and Mr. B. J. Ghosh, learned Government Advocate, appearing on behalf of the State respo ndents. Heard also Mr. D. Das, appearing on behalf of the private respondents. 2. The basic question, which falls for determination in the present writ pe tition, is: whether benefit of accelerated seniority can be granted to a candida te of reserved category if he was promoted prior to the Constitution (85th Amend ment) Act, 2001, which came into force with effect from 17.06.1995. 3. In order to appreciate the controversy, which the present writ petition has raised, it is apposite to take note of the material facts, which have bearin g on the present writ petition. 4. The petitioner Nos. 1, 2 and 3, on successfully completing the Two years Diploma course in Forestry at the State Forest Service College, Dehradun, were appointed to the post of Assistant Conservator of Forest (in short, ’ACF’) on 16 .03.1985. Petitioner No. 4 completed Diploma course at the State Forest Servic e College, Byrnihat, and was appointed as Assistant Conservator of Forest on 20. 11.1986. The respondent Nos. 3, 4, 5 and 6 were appointed subsequent to the app ointment of the petitioners, the respondent No. 6 being appointed on 14.04.1987. In the year 1989, the Government of Assam, Department of Forest, by notificati on, dated 16.11.1989, published a draft gradation list of the Forest officers (C lass-I), wherein the names of the present petitioners figured at Sl. No. 73, 74, 75 and 76 respectively, whereas the name of the respondent No. 3 figured at Sl. 77, the name of respondent No. 4 figured at Sl. No. 89, the name of respondent No. 5 at Sl. No. 78 and the name of respondent No. 6 figured at Sl. No. 115. T hus, as per the dates of appointment, the petitioners were senior to the private respondents. On 29.06.1995, the Government of Assam, Department of Forest, issu ed a notification, whereby all the petitioners herein were promoted to the post of Deputy Conservator of Forest (in short, ’DCF’). However, though the petitio ners were senior to the private respondents, the private respondents were promot ed to the post of DCF, earlier than the petitioners, by various notifications, i ssued in this regard, their promotions having been granted under reserved catego ry as per the reservation policy of the Government. Thus, the respondent No. 3, who belongs to Scheduled Tribe (Plains), was promoted to the rank of DCF, on 02 .05.1990, respondent No. 4, who belongs to Scheduled Tribe (Plains), was promote d to the rank of DCF, on 11.01.1994, respondent No. 5, who belongs to Scheduled Caste, was promoted to the rank of DCF, on 23.06.1993, and respondent No. 6, bel onging to Scheduled Tribe (Hills), was promoted to the rank of DCF on 15.02.1994 . 5. Following the 85th Amendment of the Constitution, which was introduced b y the Constitution (85th Amendment) Act, 2001, the Government of Assam issued an Office Memorandum, dated 12.03.2002, prescribing the principle for fixation of seniority of reserved category candidates vis-à-vis general candidates in the pr omotional posts. This Office Memorandum laid down, inter alia, that by virtue o f the Rules of Reservation/Roster, the Scheduled Casts and Scheduled Tribes Gove rnment servants shall, on their promotion, be entitled to consequential seniorit y too and that this decision of the Government shall be effective from 17.06.199 5. 6. Subsequent to the publication of the Office Memorandum, dated 12.03.2002 , too, a gradation list, in respect of the officers, in the cadre of DCF, was pu blished, on 01.09.2003, placing therein the petitioners at serial No. 21, 22, 23 and 24, respectively, whereas the private respondents, namely, respondent Nos. 3, 4, 5 and 6 were placed at serial Nos. 25, 37, 26 and 63, respectively. The p etitioners were, thus, even after the publication of the Office Memorandum, date d 12.03.2002, considered and treated as senior to the private respondents. This position was, however, altered by publication of a gradation list of the cadre of DCF on 25.08.2005, which, for the first time, depicted the private respondent s as senior to the present petitioners inasmuch as in the said gradation list, d ated 25.08.2005, aforementioned the respondent Nos. 3, 4, 5 and 6 were placed at Serial Nos. 21, 22, 23, and 24, respectively; whereas, the petitioner Nos. 1, 2 , 3, 4 were placed at Serial Nos. 25, 26, 27 and 28 respectively. The petitione rs were, thus, ranked, in the cadre of DCF, junior to the private respondents. 7. What is, however, important to note is that on his promotion to the cadr e of DCF, though on a later date, the petitioner was treated by the State respon dents, in the cadre of DCF, as senior to the respondent Nos. 3 and 4 inasmuch as the gradation list, published in this regard, depicted the petitioner as senior to both the respondent Nos. 3 as well as 4. 8. Aggrieved by the gradation list, dated 25.08.2005, aforementioned, the p etitioners made representations to the appropriate authority seeking correction of their respective seniority position in the said gradation list, dated 25.08.2 005. As the representation did not yield any favourable result, the petitioners are before this Court with this writ petition, made under Article 226 of the Co nstitution of India, seeking issuance of appropriate writ(s) setting aside and q uashing the gradation list, dated 25.08.2005, aforementioned and commanding the State respondents to correct the gradation list and publish the same, in accorda nce with law, depicting the inter se seniority position of the petitioners and t he private respondents. 9. The respondents have resisted the writ petition, the State respondents’ case being that with the coming into force of the Constitution (85th Amendment) Act, 2001, a person, belonging to Scheduled Caste or Scheduled Tribe, on his bei ng promoted, shall also receive the benefit of consequential seniority and, henc e, the private respondents, namely, respondent Nos. 3, 4, 5 and 6 had to be trea ted as senior to the petitioners in the cadre of DCF, though the petitioners wer e senior to the private respondents in the feeder cadre of ACF. In tune with th is ground of the State respondents is the ground of resistance offered by the pr ivate respondents, namely, respondent Nos. 3, 4, 5 and 6 too. 10. The immediate question, therefore, which arises for consideration, is: w hether the petitioners, on being promoted to the cadre of DCF, on a later date t han the dates of promotions of the private respondents, could have been treated as senior to the private respondents in the cadre of DCF ? 11. While considering the present writ petition, one has to be alive to the position of law, which the Constitution (85th Amendment) Act, 2001, have introdu ced in the promotional arena of the Government servants. In order to appreciate the consequences of the Constitution (85th Amendment) Act, 2001, it is necessar y to take note of not only the Constitution (85th Amendment) Act, 2001, but also the Constitution (77th Amendment) Act, 1995, which, obviously, preceded the Con stitution (85th Amendment) Act, 2001. It may be pointed out, in this regard, th at by the Constitution (77th Amendment) Act, 1995, Clause 4A was added to Artic le 16, which reads as under: (4-A) Nothing in this Article shall prevent the State from making any provisio n for reservation in matters of promotion to any class or classes of posts in th e services under the State in favour of Scheduled Castes and Scheduled Tribes wh ich, in the opinion of the State, are not adequately represented in the services under the State. 12. Clause 4-A of Article 16 was, again, amended by the Constitution (85th A mendment) Act, 2001, guaranteeing benefit of consequential seniority, in additio n to accelerated promotion, to the Government servants belonging to Scheduled Ca stes and Scheduled Tribes if the State Government so provides. The amendments, which Article 16 (4-A) underwent, reads as under: 16 (4-A) Nothing in this Article shall prevent the State from making any provis ion for reservation in matters of promotion, with consequential seniority, to an y class or classes of posts in the services under State in favour of the Schedul ed Castes and the Scheduled Tribes which, in the opinion of the State, are not a dequately represented in the services under the State. 13. There is no dispute that with the further amendment of Clause (4-A) of A rticle 16 by the Constitution (85th Amendment) Act, 2001, the State has been emp owered to provide for reservation in matters of promotion with consequential sen iority to any class or classes of posts in the service, under the State Governme nt, in favour of Scheduled Castes and Scheduled Tribes, which, in the opinion of the State, are not adequately represented in the service under the State. It w as, thus, the benefits of the benevolent amendment of the Constitution (85th Ame ndment) Act, 2001, which was given impetus by the Government of Assam by issuing the Office Memorandum, dated 12.03.2002, aforementioned. To this extent, there is no difficulty, and there is no error on the part of the State respondents, w hile laying down the principle of fixation of seniority of the reserved category candidates vis-à-vis general candidates in the promotional posts, when the Gove rnment made it clear that, by virtue of the rules of reservation/roster, the Sch eduled Castes and Scheduled Tribes Government servants shall, on their promotion , be entitled to consequential seniority too. It was, however, made clear by t he Assam Government’s Office Memorandum, dated 12.03.2002, aforementioned that t his benefit of consequential seniority following accelerated promotion, based on reservation, would be extended to the Scheduled Caste and Scheduled Tribe gover nment servants w.e.f. 17.06.1995. 14. Thus, the benefit of accelerated promotion, with consequential seniority , was extended to the Scheduled Castes and Scheduled Tribes government servants by the Government of Assam w.e.f. 17.06.1995. A Government servant could not ha ve received, and would not, in the light of the Office Memorandum, dated 12.03.2 002, receive consequential seniority, if his promotion was on any date prior to 17.06.1995, i.e., before the Constitution (85th Amendment) Act, 2001, was brough t into force. 15. In the present case, both the private respondents, namely, respondent No s. 3, 4, 5 and 6, were promoted to the cadre of DCF from the cadre of ACF on dat es earlier than the cut-off date of 17.06.1995 inasmuch as respondent No. 3 was promoted, as already indicated above, on 02.05.1990, respondent No. 4 was promot ed, on 11.01.1994, respondent No. 5 was promoted, on 23.06.1993 and respondent N o. 6 was promoted, on 15.02.1994, to the cadre of DCF. Thus, none of the privat e respondents, having been promoted after the cut-off date of 17.06.1995, could have been extended the benefit of the Office Memorandum, dated 12.03.2002 and/or the benefit of the Constitution (85th Amendment) Act, 2001. 16. Coupled with the above, what is necessary to bear in mind is that in Aji t Singh Januja and others vs. State of Punjab and others, reported in (1996) 2 S CC 715, which is popularly known as Ajit Singh (I), the Supreme Court, agreeing with its earlier decision, in Union of India vs. Virpal Singh Chauhan, reported in (1995) 6 SCC 684, made it clear that the guarantee of equality requires main tenance of original or penal inter se seniority between the general category can didate and the earlier promoted reserved category candidate under the reservatio n policy, for promotion to the higher general vacancy . It was further observed , in Ajit Singh (I), that when a Scheduled Caste/Tribe candidate is promoted ea rlier by applying the rule of reservation/roster against a post reserved for suc h Scheduled Caste/Tribe candidate, there is no occasion to examine the merit of such Scheduled Caste/Tribe candidate vis-à-vis his seniors belonging to the gene ral category. As such it will be only rational, just and proper to hold that wh en the general category candidate is promoted later from the lower grade to the higher grade, he will be considered senior to a candidate belonging to the Sched uled Caste/Tribe, who had been given accelerated promotion against the post rese rved for him & & & & & &.If this rule and procedure is not applied then result will that majority of the posts in the higher grade shall be held at one stage by pe rsons who have not only entered service on the basis of reservation and roster b ut have excluded the general category candidates from being promoted to the post s reserved for general category candidates merely on the ground of their initial accelerated promotions. This will not be consistent with the requirement or th e spirit of Article 16(4) or Article 335 of the Constitution. 17. It is this principle, propounded in Virpal Singh Chouhan (supra) and str engthened in Ajit Singh (I) (supra), namely, that when a Scheduled Caste or Trib e candidate is promoted earlier by applying the rule of reservation/roster again st a post reserved for such Scheduled Caste or Scheduled Tribe candidate, there is no occasion to examine the merit of such Scheduled Caste or Scheduled Tribe c andidate vis-à-vis his seniors belonging to the general category. As such it wi ll be only rational, just and proper to hold that when the general category cand idate is promoted later from the lower grade to the higher grade, he will be con sidered senior to a candidate belonging to the Scheduled Caste or Scheduled Trib e, who had been given accelerated promotion against the post reserved for him, w hich the Constitution (85th Amendment) Act, 2001, sought to remove by extending to the reserved category candidates not only accelerated promotion, but also gua ranteeing to them consequential accelerated seniority. Thus, the Constitution ( 85th Amendment) Act, 2001, has done away the cache of rules, which were propound ed in the case of Virpal Singh Chouhan (supra) and reiterated and strengthened i n Ajit Singh (I) (supra). The position, therefore, before the Constitution (85t h Amendment) Act, 2001, was that if a Scheduled Caste/Scheduled Tribe Government servant can be promoted earlier than a general candidate on the strength of the Rules of reservation/roster, the general category candidate, who was so superse ded and who was senior to such promoted reserved category candidate, would acqui re his original position of seniority, when he, in course of time, gets promoted to the cadre to which the reserved category candidate was earlier promoted due to the provisions of accelerated reservation made in favour of Scheduled Caste C aste and Scheduled Tribe candidates. The benefit of the Constitution (85th Amen dment) Act, 2001, cannot, as already discussed above, be extended to a governmen t servant belonging to Scheduled Caste or Scheduled Tribe if he was promoted bef ore the cut-off date of 17.06.1995. 18. In the case at hand, as already indicated above, when respondent Nos. 3, 4, 5 and 6 were promoted to the cadre of DCF, the Constitution (85th Amendment) Act, 2001, had not come into force and, therefore, they could not have been tre ated, in the cadre of DCF, as senior to the present petitioners, when the presen t petitioners received their promotion, though on a later date, to the cadre of DCF. It is, thus, abundantly clear and leaves no room for doubt that when the p etitioners were, admittedly, senior to the private respondents in the cadre of A CF, they ought to have been treated, and shall, now, be treated, on their promot ion, though on a later date, to the cadre of DCF, as senior to the private respo ndents, namely, respondent No. 3, 4, 5 and 6. Even the Office Memorandum, dated 12.03.2002, aforementioned did not justify treating the private respondents as s enior to the present petitioners in the cadre of DCF. 19. In the result and for the foregoing reasons, this writ petition succeeds . The impugned gradation list, dated 25.08.2005, is hereby set aside and quashe d. This gradation list, accordingly, shall be treated as non est in law and the present petitioners shall be treated to have always been senior to the responde nt Nos. 3, 4, 5 and 6 in the cadre of DCF. 20. With the above observations and directions, this writ petition stands di sposed of. 21. No order as to costs.