WP(C) 8471/2005 BEFORE HON’BLE JUSTICE B.K. SHARMA JUDGEMENT AND ORDER 1. The petitioners are the aspirants for promotion to the post of Sub-Divi sional Agricultural Officer (SDAO). Their grievance is that the respondents have violated the provisions of the relevant service rules in initiating process to promote the officers in the feder grades. Accordingly, the prayer made in this writ petition is for issuance of a direction to the respondents to follow the pr ovisions of the rules. 2. The petitioners were initially appointed as Agricultural Extension Offic er (AEO) which has now been redesignated as Agricultural Development Officer (AD O). After continuing as such for a considerable length of time, the petitioners were posted as Junior Subject Matter Specialist (JSMS) which has now been redesi gnated as Senor Agricultural Development Officer (SADO). Such posting of the pet itioners was by way of transfer from the cadre of AEO/ADO to JSMS/SADO and the s ame was done on the basis of the seniority in the cadre of AEO/ADO. According to the petitioners the post of JSMS/SADO is of higher rank and status carrying spe cial pay and it is under supervision of such JSMS/SADO, the AEO/ADOs perform the ir duties. Be it stated here that the petitioners were transferred and posted a s JSMS/SADO in the year 1988 (29.11.88). 3. According to the petitioners, the total cadre strength of the next promo tional post of SDAO on the basis of Annexure-B seniority list is 63. By Annexure -C notification dated 22.01.02, the Govt. conveyed the sanction of upgradation of 100 posts of JSMS to that of SDAO indicating that such upgradation would come into force w.e.f. the date of entertainment of the upgraded posts. It was also indicated that consequent upon upgradation of 100 posts of JSMS to that of SDAO, there would be corresponding abolition of 100 posts of JSMS from the date of en tertainment of upgraded posts. 4. The promotion to the post of SDAO is made under Assam Agricultural Serv ice Rules, 1980. The petitioners have stated that in Annexure-D seniority list o f SDAO, the total cadre strength has been shown as 69 with only 59 serving incum bents. In Annexure-E seniority list of JSMS dated 23.05.02, the names of the pet itioners appeared at serial Nos. 111, 117, 119 and 123 respectively out of total No. 209 JSMS. A separate seniority list of AEOs as on 10.07.02 was also publish ed containing the names of 543 AEOs. According to the petitioners, their presen t positions in the seniority list are 102, 107, 109 and 113 respectively due to retirement/death of some of the incumbents above them. By Annexure- F order date d 30.12.02, altogether 47 SDAOs were promoted to the next higher rank, as a con sequence of which 47 vacancies of SDAO fell vacant. 5. This court during the course of hearing of the case requested the learne d State counsel to furnish exact position relating to total cadre strength of SD AO prior to creation of aforesaid 100 posts and their percentage of reservation achieved while promoting the aforesaid 47 officers in 2002 (30.12.02). 6. In response to the aforesaid queries put on record by order dated 24.07. 07, the Govt. by its letter dated 30.07.07 addressed to the learned State counse l has indicated that the total cadre strength of existing SDAO is 65. As regards the percentage reservation achieved, it has been stated as per the Roster Regis ter maintained in the department, percentage of reservation has been worked out against 289 number of posts (vacancies). 7. On the basis of the aforesaid instructions this proceeding is confined to 65 normal promotional vacancies and 100 upgraded vacancies of SDAO. 8. The JSMS had earlier filed a writ petition being W.P.(C) No. 1043/03 in which a claim was made that since they have been transferred and posted as JSMS from the cadre of AEO with special pay, they are holders of higher post than th e AEO and thus their case for promotion to the next higher grade of SDAO should be considered independent of consideration of the case of the AEO. On the other hand, the AEOs also filed a writ petition being W.P.(C) No. 2195/03 claiming tha t they are at per with the JSMS and are entitled to get promotion to the next hi gher grade of SDAO. 9. The first writ petition being W.P.(C) No. 1043/03 was allowed while the second writ petition being W.P.(C) No. 2195/03 was dismissed. The matter was car ried on appeal by way of WA No. 348/04 and 349/04. The Division Bench set aside the judgment passed in the writ petitions and allowed the writ appeals. Conseque ntly, the first writ petition stood dismissed while the second writ petition sto od allowed. Operative part of the judgment in writ appeal is quoted below: 17. & This observation of the Hon’ble Supreme Court further clarify the posi tion that when a Statute as it is admit of no ambiguity, question of looking int o the past practice would not arise as this would upset the provisions of the St atue. The case at hand is somewhat akin to this situation. The rules provides fo r two independent cadres without any provision for inchangeability, and these tw o cadres are the feeder cadres to the post of Sub-Divisional Agricultural Office rs. This alone rules out any scope for interpretation of the provisions of the s ervice Rules with the aid of past practice. Though the JSMS only have been cons idered for promotion to the post of Sub-Divisional Agricultural Officer so far, such practice cannot be superimposed on the provisions of the Rules. The right v ested on the incumbents to the cadre of AEOs under the Rules cannot be obliterat ed altogether. If the impugned interpretation is sustained, the AEOs will be lef t at lurch in perpetuity without any avenue for promotion. The argument that th e Senior AEOs will be transferred to the cadre of JSMS batch by batch and then c onsidered and promoted to the posts of Sub Divisional Agricultural Officer canno t salvage the situation. It is because the AEOs do not have any vested right of transfer to the cadre of JSMS under the Rules. They may or may not be transferre d by the State. We are, therefore, constrained to hold that the JSMS have failed in their bid to make out a case for themselves to the exclusion of the AEOs. 18. In the result, both the appeals are allowed. Consequent thereupon, Writ pet ition (C) No. 1043 of 2003 filed by the JSMS is dismissed and the Writ Petition (C) No. 2425 of 2003 filed by the AEO is allowed in reversal of the impugned com mon judgment. It is directed that the upgraded 100 posts in the cadre of Sub-Div isional Agricultural Officers have to be filed up from the incumbents of both th e cadres of JSMS and AEOs in accordance with the provisions of the Rules. For th is purpose a ratio in the cadre of Sub-Divisional Agricultural Officer may be pr escribed by the State. The incumbents to the Cadre of JSMS who are holding the p osts on transfer are also declared eligible for consideration for promotion on t he basis of their rank, status and seniority as AEOs. 10. From the aforesaid adjudication of the matter between the AEOs and the JSMS, what has emerged is that the promotional post of SDAO are now to be filled up from amongst the incumbents of both the cadres of JSMS and AEOs in accordanc e with the provisions of the rules. 11. As regards the upgraded 100 posts in the cadre of SDAO, they are to be f illed up from both the cadres of JSMS and AEO in accordance with the provisions of the rules. However, for the purpose, the ratio in the cadre of SDAO is to be prescribed by the Govt. 12. Rule 13 of the Assam Agricultural Rules, 1980 makes the provision for ho lding of year wise selection for promotion. Upon a reference to Rule 3, 4, 11, 1 2 and 13 of the Rules, it is the case of the petitioners that there are two dist inct and separate cadres of AEOs and JSMS, although incumbents of the both cadre s are eligible for promotion to the post of SDAO. Further case of the petitioner s is that in case of non-holding of yearly selection, it is incumbent on the p art of the official respondents to prepare year wise penal on the basis of the y ear wise vacancies. In paragraph 13 of the writ petition, the petitioners have indicated the number of vacancies arose in different years. They are shown below : Sl. No. Period Vacancies Reasons for vaca ncy 1) Prior to October, 2001 5 by retirement/death 2) November, 2001 2 by death/retirement 3) 01.01.02 to 31.12.02 8 by death/retirement 4) December, 2002 47 by promotion -------------------------------------- Total 62 13. With the aforesaid position, the next plea of the petitioners is relatin g to adherence to 20 point Roster relating to reservation. In paragraph 15 of th e writ petition, the petitioners have stated that as per opinion rendered by the Legal Remembrancer of the State, the normal vacancies and the upgraded vacancie s are to be clubbed together applying the ratio in 3:2 for AEO and JSMS and also applying the formula relating to clearance of backlogs taking the normal and u pgraded vacancies together. It has been stated by the petitioners that as per th e said opinion of the Legal Remembrancer, the respondents have proceeded with t he matter in that manner which according to them is contrary to the aforesaid di rection of the Division Bench as well as the rules holding the field. Further ca se of the petitioner is that if the opinion rendered by the Legal Remembrancer i s to be accepted, same will lead to violation of the provision of the Assam Sche dule Castes and Schedule Tribes (Reservation of Vacancies in Service and Posts), Act 1978 and the Rules framed therein. 14. Referring to Annexure- I and J office memoranda dated 28.08.01 and 14.07 .04 respectively, the petitioners have asserted that once the percentage of rese rvation is achieved, there is no question of falling back on backlogs. According to the petitioners, the respondents have committed mistake in calculating the p ercentage of reservation and applying the test of clearance of backlogs. Furthe r case of the petitioners is that if the procedure adopted by the respondents is allowed to stand, same will lead to excessive reservation. Showing the total ca dre of strength to be 62 (normal) and 100 (upgraded) and applying the ratio of 1 :4, the petitioners have contended that if altogether 648 incumbents which would naturally include AEOs as well, are considered for promotion to 162 posts, the n leaving aside the total cadre strength of 267 JSMS, 381 AEOs will also come in to the zone of consideration. In that case huge number of reserved category cand idates would score a march over the petitioners. Further case of the petitioners is that there is no question of applying the test of backlog in the newly creat ed 100 posts. 15. The official as well as the private respondents have filed their counter affidavit denying the contentions raised in the writ petition. According to th em, when it has been held by the Division Bench that the incumbents in both the cadres, i.e. AEO and JSMS, although two separate cadres, are entitled to get con sideration for promotion as per the aforesaid service rules, there is nothing wr ong in considering the incumbents of both the cadres for promotion to the cadre of SDAO. According to them both normal as well as the upgraded promotional vacan cies are to be clubbed together for consideration of the case of the incumbents in both the cadres. 16. The respondents have also supported the test of reservation policy sough t to be applied. In paragraph 37 of the affidavit in opposition filed by the res pondents No. 4 to 8, it has been stated that 7 promotional vacancies of SDAO aro se in 2001 and 55 vacancies arose in the year 2002. According to them, 100 upgra ded vacancies also arose in 2002. Thus, according to them, for 162 vacancies of SDAO, a combined selection is to be made. 17. The official respondents in their affidavit have stated that 7 vacancies which arose prior to 2002, were also taken into account along with 55 vacanci es occurred in 2002. It has also been stated that a selection was conducted on 1 5.02.02 taking together all 162 posts (normal and upgraded). According to them, clubbing of 7 vacancies occurred prior in point of time along with 55 vacancies did not lead to any major loss and gain to either of the parties. In paragraph 13 of the affidavit filed by the official respondents, it has been stated that reservation roster has been maintained in the department w.e.f. 01.05.79 and as per the said register the department has already filled up 289 vacancies in the cadre of SDAO as per the respective roster points for reserved categories. It i s the specific stand of the official respondents that 100 upgraded posts are als o promotional posts in the rank of SDAO, so in case of filing up the same, clear procedure of selection as per existing rules, including the backlog etc. will have to be followed. In paragraph 17 of the said affidavit, it has been stated t hat the department has followed the provision of the Assam Schedule Castes and S chedule Tribes (Reservation of Vacancies in Service and Posts) Act, 1978 without exceeding the required percentage of reserved categories. 18. I have heard Mr. D.K. Mishra, learned Sr. counsel assisted by Mr. B. Cho kraborty, learned counsel for the petitioners as well as Mr. N. Dutta, learned S r. counsel assisted by Mr. A.N. Choudhury and Mr. P. Deka, learned counsel for t he private respondents. I have also heard Ms. R. Chokraborty and Mr. B.J. Talukd ar, learned State counsel representing the official respondents. I have also gon e through the materials on record. 19. From the respective pleadings and arguments of the parties, the followin g questions/issues have arisen for determination. a) Whether in terms of Rule 13 of the Rules, year wise penal for filling u p 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. 20. Issue No. (a): Rule 13 of the Assam Agricultural Service Rules 1980 lays down the general procedure of promotion as per which in case of availability of vacancies, an obligation is cast on the Govt. to take steps for holding the se lection every year. As per the statement made in paragraph-10 of the affidavit f iled by the official respondents, out of 62 normal vacancies, 7 vacancies occurr ed prior to 2002, while 55 vacancies occurred in the year 2002. However, it is their stand that such 55 vacancies will have to be taken into account along wit h 100 vacancies purportedly created in the year 2002 by Annexure-C order dated 2 2.01.02. 21. If the preparation of year wise penal is the requirement of Rule 13, th en in that case, a composite selection cannot be held for the aforesaid 7 (2001 ) + 55 (2002) vacancies. As per the requirement of Rule 13, the selection commit tee should be commenced on regular annual intervals to draw penal which could be utilized for making promotion against the vacancies occurred during the course of a year. Rule 13 lays down the detailed procedure in this regard. 22. Very often the selection meeting is initiated after a vacancy has arisen . This results in undue delay in filling up the vacancies causing dissatisfactio n among those who are eligible for promotion. It is always desirable rather mand atory that regular meetings of selection committee are held every year for each category of posts so that an approved select penal is available in advance in m aking promotion against the vacancies arisen every year. However, for the reason s beyond the control of the selection committee the selection cannot be held in a year(s), even though vacancies arose during that year(s), in the normal circum stance, the selection committee is to prepare year wise penal by placing the sel ect list of earlier year above the one for the next year and so on. This aspect of the matter has been discussed in the decision of the Apex Court reported in ( 1995) 4 SCC 246 (Vinod Kumar Sangal vs. Union of India and others) and (1997) 9 SCC 287 (Union of India vs. N.R. Banerjee) 23. Applying the above test, the respondents cannot club the aforesaid 7 + 55 vacancies in a single selection and since the respondents have accepted the p articular plea relating to preparation of year wise penal, they will have to pre pare separate select list for 55 posts preceded by the select list for 7 pots w hich according to the respondents have occurred in 2002 and 2001 respectively. 24. Issue No. (b): By Annexure (C) letter dated 22.01.02, the Govt. of Assa m in the Agricultural Department intimated the Accountant General (A & E), Assam relating to upgradation of 100 posts in the rank of JSMS to SDAO. Such upgradat ion is not automatic, but will be effective from the date of entertainment of u pgradation of the posts which again is dependent on simultaneous abolition of 10 0 posts of JSMS. Rule 13 of the Rules mandates preparation of yearly penal on th e basis of the likely number of vacancies to be filled up by promotion in the ne xt year. Before the end of each year, the Govt. is to make assessment of the lik ely number of vacancies. Such assessment could be made only against normal vacan cies and not against the contemplated upgraded vacancies as notified by Annexure -C dated 22.01.02. Further 100 vacancies were not in existence in the year 2002 . The vacancy would arise only upon abolition of 100 posts of JSMS with simultan eous promotion of the incumbents to the promotional post of SDAO. In this connec tion, the language applied in Annexure-C letter dated 22.01.02 has a significant bearing. In the letter it has been indicated that upgradation will come into fo rce w.e.f. the date of entertainment of upgraded posts. Thus, until and unless t he upgraded posts are entertained with simultaneous abolition of 100 posts of JS MS, it cannot be said that those 100 posts were in existence in 2002. Even other wise also there could not have been any visualization of those 100 pots in the p receding year in which the assessment of likely number of vacancies was to be ma de. 25. In view of the above, I am of the considered opinion that 100 upgraded p osts which are yet to come into existence should be excluded from the purview of 65 normal vacancies. Although there is no definite indication in this regard in the Division Bench judgment in the aforesaid writ appeals, but inference can be drawn from the operative part of the judgment extracted above. 26. The Division Bench while holding that 67 normal vacancies of SDAOs are t o be filled up from amongst AEO and JSMS, has also held that for the upgraded 10 0 posts the incumbents of both the categories are entitled to get promotion in a ccordance with the provisions of the aforesaid Rules. However, the Govt. has bee n left to provide ratio for the purpose. If any ratio is to be provided for 100 upgraded posts, the said posts cannot be clubbed along with 65 normal vacancies. Be it stated here that the recruitment rules itself do not provide for any such ratio. 27. Issue No. (c): As has been held in R.K. Sabharwal vs. State of Punjab re ported in (1995) 2 SCC 745, the percentage of reservation has to be worked out in relation to the number of posts which form the cadre strength. The concept of vacancy has no relevance in operating the percentage of reservation. By now i t is well accepted principle of reservation that the reservation cannot exceed t he ceiling limit of 50%. The Govt. has to apply the cadre strength as a unit in the operation of Roster in order to ascertain whether a given class/group is ad equately represented in service. The cadre strength as a unit also ensures that the upper ceiling limit of 50% is not violated. Further the Roster is to be post specific and not vacancy based. 28. In R.K. Sabharwal (supra), the Apex Court vividly dealt with problematic areas relating to percentage of reservation, operation of Roster and the expres sion post and vacancy thus:- 4. When a percentage of reservation is fixed in respect of a particular cadre a nd the roster indicates the reserve points, it has to be taken that the posts sh own at the reserve points are to be filled from amongst the members of reserve c ategories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appoi ntment to the said posts their number cannot be added and taken into considerat ion for working out the percentage of reservation. Article 16(4) of the Constitu tion of India permits the State Government to make any provision for the reserva tion of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a concl usion that the Backward Class/Classes for which the reservation is made is not a dequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representa tion in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because s ome of the members of the Backward Class have already been appointed/promoted ag ainst the general seats. As mentioned above the roster point which is reserved f or a Backward Class has to be filled by way appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. The fact that considera ble number of members of a Backward Class. Have been appointed/promoted against general seats in the State Services may be relevant factor for the State Govern ment to review the question of continuing reservation for the said class but so long as the instructions/rules providing certain percentage of reservations for the Backward Classes are operative the same have to be followed. Despite any num ber of appointees/promotees belonging to the Backward Classes against the genera l category posts the given percentage has to be provided in addition.