WA 222/2008 BEFORE HON’BLE THE CHIEF JUSTICE MR J CHELAMESWAR HON’BLE MR JUSTICE A POTSANGBAM Heard Mr H Sarma, learned counsel for the appellants. Also heard Mr SS Dey, lear ned counsel for the respondent Nos.4 and 5. Aggrieved by a judgment dated 27-6-08 in WP(C) No.720/05 the respondent Nos.4 and 5 therein preferred the present appeal. The appellants who are the seniormost Lower Division Assistants at Kalia bor Road Division of the PWD were promoted to the posts of Upper Division Assist ant by an order dated 18-10-04. Such a promotion came to be challenged by the wr it petitioners (respondent Nos.4 and 5 herein) essentially on the ground that th e provision of the Assam SC and ST (Reservation of Vacancies in Services and Pos ts) Act, 1978 were not followed. The writ petitioners (respondent Nos.4 and 5 herein) belong to SC and ST (P) categories respectively. It may not be necessary to go into the complete det ails of their career graph except to state that both of them were appointed s Lo wer Division Assistants against unreserved posts on account of their superior me rit. The issue that fell for consideration in the judgment under appeal is wh ether a candidate belonging to a reserved category, either SC or ST, originally appointed against an open category post, can claim the benefit of the constituti onal protection of reservation under Article 16(4) of the Constitution, while co nsidering the cases of such candidates for promotion to the next higher category . By the judgment under appeal the learned Judge held for cogent reasons that th ough the candidates, such as the writ petitioners, were initially appointed in a lower category posts which are available for general competition, they did not cease to be candidates belonging to reserved category and, therefore, their clai m for being considered as such for a further promotion in the service as and whe n such opportunity comes on the ground that they belong to the reserved category cannot be denied. The learned counsel for the appellants submitted that the learned Judge erred in coming to such a conclusion by the judgment under appeal. The learned c ounsel placed reliance on two judgments of the Supreme Court reported in (1996) 2 SCC 715 (Ajit Singh Januja & Ors vs. State of Punjab & Ors) and (2005) 12 SCC 498 (J & K Public Service Commission vs. Israr Ahmad & Ors). The learned counsel for the appellants placed reliance at para 11 of the first of the above mentioned judgments. All that the said paragraph states is t hat if a candidate belonging to a reserved category, either SC or ST [ST(P) for the controversy before us] is appointed to a post, which is not reserved for suc h a reserved category, on account of comparatively superior merit of the candida te at the time of appointment such appointment cannot be counted against the res erved quota and the requisite number of posts earmarked for the candidates belon ging to the same reserved category are still required to be filled up by candida tes belonging to that category. The judgment does not say that a candidate appoi nted against an open category vacancy altogether ceases to be a candidate belong ing to such a category and debarred for ever to claim the benefit of reservation during the course of his employment. Coming to the second of the above mentioned cases, the question there wa s whether a candidate who could not produce the necessary caste certificate at t he initial stage should be permitted to produce it at a later stage and claim th e benefit of reservation. The Supreme Court held that such a procedure is not pe rmissible. In our view the above mentioned judgment is confined only to the proc edure that is required to be followed in making the appointment process and does not cover the issue in the present writ petition. In the circumstances we do not see any merit in the appeal. The appeal i s dismissed at the admission stage.