WA 378/2008 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE B.D.AGARWAL Ranjan Gogoi, J This appeal is directed against the judgment and order dated 5.10.2007 p assed in a proceeding registered and numbered as WP(C) No. 8471/2005. By the afo resaid judgment and order, a learned Single Judge of this Court has decided the points formulated for decision, as contained in para 19 of the judgment, details of which will be noticed later, in favour of the respondents/ writ petitioners leading to the present appeal by the State of Assam. 2. The brief facts that will be required to appreciate the issues a rising in the present appeal may be noticed at the outset: The respondents/ writ petitioners were initially appointed as Ag ricultural Extension Officer (now redesignated as Agricultural Development Offi cer). After serving in the said capacity for a considerable length of time the r espondents/ writ petitioners were posted as Junior Subject Matter Specialists (r edesignated as Senior Agricultural Development Officer). Such posting of the res pondents/ writ petitioners as Junior Subject Matter Specialists (hereinafter ref erred to as ’JSMS’) was by transfer from the cadre of Agricultural Extension Off icer (hereinafter referred to as ’AEO’) on the basis of seniority in the cadre o f AEO. The post of JSMS, according to the respondents/ writ petitioners, is high er in rank than the ASO as it carries a special pay and besides the JSMSs superv ise the work and duties performed by the AEOs. Though not necessary for the pres ent case, to make the narration complete it may be put on record that the afores aid stand has been negatived by this Court in W.A. No. 438 and 439 of 2004 and b oth the posts of AEO and JSMS has been held to constitute two different but equi valent cadres with a common channel of promotion to the next higher rank of Sub- Divisional Agricultural Officer. 3. Under the Assam Agricultural Service Rules, 1980 (hereinafter re ferred to as ’the Rules’), the next promotional post from the cadre of JSMS/ AEO is Sub-Divisional Agricultural Officer (SDAO). The total cadre strength of SDAO is 65 as ascertained by the learned Single Judge in the proceeding before him. 100 posts of JSMS were upgraded to that of SDAO by Govt. Notification dated 22.1 .2002. However, such upgradation was to come into effect from the date of entert ainment of the upgraded posts. In the Notification dated 22.1.2002, it was menti oned that upon upgradation of the said 100 posts of JSMS to that of SDAO, there would be corresponding abolition of 100 posts of JSMS effective from the date of entertainment of the upgraded posts. 4. According to the respondents/ writ petitioners, 5 posts of SDAO fell vacant on dates prior to October, 2001 and 2 posts became vacant in Novembe r, 2001. The aforesaid vacancies which were on account of death or retirement in the year 2001, therefore, numbered 7. In the calendar year 2002, 8 more posts o f SDAO fell vacant on account of death and retirement whereas in the month of De cember, 2002, 47 vacancies arose on account of promotion of serving SDAOs. As al ready noticed, by Govt. Notification dated 22.1.2002, 100 posts of JSMS were upg raded to that of SDAO. According to the respondents/ writ petitioners, the State had undertaken a process to fill up the aforesaid 162 vacancies in one go, ther eby, violating the provisions of Rule 13 of the Rules in force which provides fo r holding of yearwise selection for promotion. According to the respondents/ wri t petitioners, clubbing of all the said vacancies and the one time exercise unde rtaken for filling up the same has the effect of unduly expanding the zone of co nsideration which may work prejudicially to them. That apart, according to the w rit petitioners, the State has acted contrary to the provisions of the Assam Sch eduled Caste and Scheduled Tribe (Reservation of Vacancies in Service and Posts) Act, 1978 and the Rules framed thereunder in identifying the number of posts th at would be available to the reserved category candidates. It was the specific c ase of the writ petitioners that in identifying the number of posts that should be earmarked for the reserved category candidates the State has not treated the strength of the cadre as a unit and, instead, has sought to work out the posts a vailable against the total number of posts/ slots in the roster filled up till d ate, thereby giving a larger percentage of reservation than what has been statut orily prescribed under the Act and the Rules. That apart, according to the respo ndents/ writ petitioners, the aforesaid State action is contrary to a correct un derstanding of the manner of operation of the 20 point roster that has been pres cribed under the Act of 1978. In addition to the above, it was the specific case of the respondents/ writ petitioners that the principle of backlog vacancies ha s been sought to be applied to the 100 newly upgraded posts which is not permiss ible in law. 5. The stand of the appellant State before the learned Single Judge may now be noticed : According to the State, leaving aside 7 vacant posts that had oc curred in the calendar year 2001, the remaining posts i.e. 8 posts that had fall en vacant by death and retirement; 47 that had fallen vacant on account of promo tion and the 100 upgraded posts were all available in the year 2002 and, therefo re, there is no infirmity in holding one selection to fill up the aforesaid post s. In so far as the issue of reservation is concerned, it is the stand of the St ate that as per the register recording operation of the roster prescribed by the Act, which had been maintained since 1979, 289 vacancies in the cadre of SDAO h ad been filled up. If the percentage of reservation of different categories unde r the Act of 1978 is to be applied to the aforesaid 289 vacancies, according to the State, 29 vacancies should have been filled up by ST(P) candidates (the perc entage of reservation prescribed by the Act is 10%); 20 vacancies should have be en filed up by SC candidates (the percentage of reservation is 7%) and 14 candid ates belonging to ST(H) should have been appointed (the percentage of reservatio n under the Act is 5%). The total number of candidates from the reserved categor y that should have been included in the appointments made against the 289 vacanc ies till date, according to the State, therefore, is 63. Taking into account the persons from each of the aforesaid reserved categories who were actually appoin ted, the backlog vacancies have been worked out at 35. Furthermore, according to the State, against the 162 vacancies that were available, applying the percenta ge of reservation prescribed, the number of posts that would be available is 37 which has to be added with 35 numbers of backlog vacancies making the total post s available for being filled up by reserved category candidates 72. This is in c ontradiction to the stand of the respondents/ writ petitioners that if the total cadre strength is to be worked out at 165, keeping in mind the percentage of re servation prescribed, the total number of posts that would be available for bein g filled up by reserved category candidates is 35. 6. The above being the principal contentious issues before the lear ned Single Judge, the points arising for determination in the writ petition were identified by the learned Single Judge in para 19 of the judgment as follows: a) Whether in terms of Rule 13 of the Rules, year wise panel for filling up the promotional vacancies of SDAO are required to be prepared. b) Whether 100 upgraded posts of SDAO are to be clubbed along with normal 6 5 vacancies. c) Whether there is excessive reservation by way of exceeding the permissib le limit of 50%. d) Whether in the name of filling up of the backlog vacancies, the prescrib ed percentage of reservation can be exceeded. e) Whether carry forward formula relating to backlog vacancies will be appl icable to newly created 100 posts. 7. The learned Single Judge having answered all the aforesaid quest ions substantially in favour of the respondents/ writ petitioners. Aggrieved, th e State has filed this appeal. 8. We have heard Mr KN Choudhury, learned Addl. Advocate General, A ssam appearing for the appellant State and Mr DK Mishra, learned senior counsel appearing for the respondents. 9. Reading Rule 13 of the Rules in force, there can be no manner of doubt that the said Rule casts upon the State an obligation to hold selections every year. As to what would happen if such yearly selection mandated by the Rul es cannot be held for compelling reasons has been dealt with in several judgment s of the Apex Court, reference to which may be confined by taking into account t he views expressed in Vinod Kumar Sangal -vs- Union of India & Ors., reported in (1995) 4 SCC 246 and in Union of India -vs- N.R. Banerjee, reported in (1979) 9 SCC 287. In the aforesaid two decisions, the Apex Court took the view that in a situation where selections as contemplated by the Rules or the executive instru ctions, as the case may be, cannot be held every year, as and when such selectio ns are held, yearwise select list/ panel has to be prepared as clubbing of all t he vacancies together for the purpose of a single selection will have the effect of enlarging the zone of consideration, thereby endangering the promotional pro spects of some of the candidates who may be in the fray. In that view of the mat ter, there can be no doubt or dispute with regard to the proposition that, in th e present case, the vacancies which had occurred in the year 2001 and 2002 will have to be dealt with separately. However, the further question that arises is w hether the 100 upgraded posts were available in the year 2002 so that they can b e clubbed with the rest of the vacancies (8 + 47) that had clearly occurred in t he year 2002. 10. A perusal of the Govt. Notification dated 22.1.2002 would indica te that the upgradation of the 100 posts would come into effect from the date of entertainment of the upgraded posts and further that consequent upon such upgra dation there would be corresponding abolition of 100 posts of JSMS. The learned Single Judge has taken the view that the vacancies (100 in number) would arise o nly upon abolition of 100 posts of JSMS with simultaneous promotion of the incu mbents to the promotional post of SDAO. Reading the language of the Govt. Notif ication dated 22.1.2002, the learned Single Judge took the view that the upgrada tion contemplated therein will come into force with effect from the date of ente rtainment of the upgraded posts and that until and unless the upgraded posts are entertained with simultaneous abolition of the 100 posts of JSMS, it cannot be said that the 100 posts were in existence in the year 2002. The learned Single J udge further took the view that in any event there could have been no visualizat ion of 100 upgraded posts in the assessment of the likely number of vacancies in the year 2002 that is required to be made under Rule 13 of the Rules in the pre ceding year before initiation of the selection process. 11. The language of the Govt. Notification dated 22.1.2002 is not fr ee from ambiguity. It contemplates the existence of the upgraded posts on two co ntingencies happening, namely, (i) entertainment of the upgraded posts; and (ii) abolition of the 100 posts in the cadre of JSMS. Unless the posts are available the question of promotion and, therefore, entertainment cannot arise. The secon d condition i.e. abolition of 100 posts in the cadre of JSMS under the Govt. Not ification dated 22.1.2002 would automatically follow once promotions to the upgr aded posts are made. The upgraded posts, therefore, were available for being fi lled up immediately after the order dated 22.1.2002. The second requirement, nam ely, abolition of the 100 posts of JSMS would stand fulfilled immediately after promotions to the upgraded posts are made. Viewed from the aforesaid perspective the view taken by the learned Single Judge cannot be accepted as a possible vie w. 12. There is a further view of the learned Single Judge in this rega rd, namely, that under the Rules the number of vacancies that are likely to be a vailable in a calendar year will have to be assessed before the end of the prev ious year and only thereafter the process of filling up such vacancies is to be initiated. Since the upgradation was made by order dated 22.1.2002, it was held that the said posts could have been within the purview of the assessment of the likely vacancies of the next year i.e. 2002 that is required to be made in the previous year. In this regard, the date(s) on which additional posts may have be come available, after the initial assessment contemplated by the Rules is over, has to be kept in mind. It is not the case of the respondents/ writ petitioners before us that before the upgradation of 100 posts was made by the Govt. Notific ation dated 22.1.2002 the promotional process in respect of the vacancies alread y assessed under Rule 13 had been resorted to. If that be so, we do not see how Rule 13, by itself, can be construed to be an obstacle for the addition of such posts that may have become available subsequently i.e. on 22.1.2002 to the numbe r of vacancies that may have been already identified under Rule 13. We, therefo re, disagree with the ultimate conclusion recorded by the learned Single Judge w ith regard to the issue of holding yearwise selection/ preparation of yearwise p anel. In this regard, we have also taken into account the argument advanced that the appellant State possibly cannot be understood to be a person aggrieved by t he impugned conclusion of the learned Single Judge and further that no person wh o is likely to come out of the zone of consideration in the event separate selec tions are held, as ordered by the learned Single Judge, is before us in the pres ent appeal. To our minds the above facts will not be sufficient to refuse to re cognize a right in the State to ensure an orderly selection for filling up the v acant posts as contemplated by the law in force. 13. This will bring the Court to a consideration of the issue with r egard to reservation of vacancies under the provisions of the Assam Act of 1978 and the Rules framed thereunder. The learned Single Judge in the order under app eal has extensively quoted from the decision of the Apex Court in R.K. Sabharwal -vs- State of Punjab & Ors., reported in (1995) 2 SC 745 to come to the conclus ion that the percentage of reservation has to be worked out in relation to the n umber of posts in the cadre and not with regard to the vacancies. 14. Reading the views expressed by the Apex Court in R.K. Sabharwal (supra), this Court understands that the roster which may be prescribed by an Ac t is a kind of a running account to ensure not only that the percentage of reser vation prescribed by the statute is achieved but also to indicate the precise po ints of entry of the candidates belonging to any of the reserved category or the open category, as may be. Such roster is required to be operated against the to tal strength in the cadre and once the roster is fully operated against the cadr e strength, there will be no need to keep on operating the same as the percentag e of reservation prescribed by the Act would be fully achieved. Thereafter, slot s that may fall vacant either on death or retirement will have to be filled-up f rom the category to which the earlier incumbent(s) belonged. As against the said requirement, which we understand have been clearly spelt out in R.K. Sabharwal (supra), the State in the present case has applied the concept of vacancy and ta king into account the total number of posts of SDAO filled up till date, it has worked out the total number of posts available for the reserved category candida tes by applying the prescribed percentage of reservation and further on that bas is the backlog vacancies. Thereafter, once against it has worked out the posts t hat would be available against the total strength in the cadre by taking into ac count the 100 upgraded posts. Such an exercise is not only impermissible in law, but is also plainly opposed to a cardinal rule of reservation i.e. it cannot ex ceed 50%. The manner of working out the backlog vacancies, as noticed above, bei ng impermissible in law, the exception to the rule of maximum reservation of 50 % also does not apply to the present case. 15. We have also noticed that during the pendency of the appeal, pur suant to the leave granted vide order dated 23.1.2009, out of the total cadre st rength of SDAO (165), 110 posts have been filled up as an interim measure. Out o f the aforesaid 110 posts, 16 posts have been filled up by ST(P) candidates, 12 by SC candidates and 8 by ST(H) candidates and the remaining 74 posts by general category candidates. This roughly corresponds to the percentage of reservation provided by the Assam Scheduled Caste and Scheduled Tribe (Reservation of Vacanc ies in Service and Posts) Rules, 1978 to SC, ST(P) and ST(H) candidates. The rem aining 55 posts roughly corresponds to the 27% reservation which has been provid ed for the OBC candidates leaving aside 1 or 2 posts which may still be open for the general category candidates. The above facts have been noticed to indicate that the subsequent action of the State in filling up 110 posts, though as inter im measure, reflects a proper understanding of the law laid down by the Apex Cou rt in R.K. Sabharwal (supra). 16. Consequently and in the light of the foregoing discussions, we i nterfere with the part of the impugned order by which the learned Single Judge h ad directed for a separate process of selection for the 100 upgraded posts. The rest of the findings recorded by the learned Single Judge are maintained. Conse quently, the appeal is partly allowed to the extent indicated above.