WP(C) 1168/2011 BEFORE HON’BLE MR JUSTICE B D AGARWAL Heard Mr. UK Nair, learned counsel for the petitioners and Mr. B Goswami, learne d Standing Counsel for Water Resources Department ( respondent Nos. 1 and 2). Mr . BJ Ghosh, learned Government Advocate, appears on behalf of the State responde nt Nos. 4 and 5. Also heard Mr. B Ramchiary, learned counsel for private respond ent No. 3. Both the aforesaid writ petitions are being disposed of by this common order since the issues involved are one and the same. In other words, in both the writ petitions, the writ petitioners are challenging the order dated 19 .08.2009, issued by the Government of Assam, Water Resources Department (Establi shment Branch) promoting the respondent No. 3, namely, Mr. Barun Malakar to the post of Superintendent. There is no dispute that the writ petitioners are senior to the r espondent No. 3 in the rank of Upper Division Assistant ( Senior Assistant). In fact, in the order dated 03.06.2009, the inter-se seniority of the writ petition ers vis-à-vis the private respondent has been notified while the petitioners and respondent No. 3 were working in the cadre of Senior Assistant, one vacancy in the post of Superintendent arose which was filled up by the impugned order, appl ying the roster formula. To put it differently, respondent No. 3 has been promot ed superseding the writ petitioners on the premise that the post was to be fille d up as per the roster system. Mr. Nair, learned counsel for the writ petitioners submitted that there are only two posts of Superintendent in the Chief Engineer’s office and as such the Reservation policy cannot be made applicable. In support of this s ubmission, learned counsel cited a judgment of this Hon’ble Court in the case of Khanindra Nath Choudhury- Vs- State of Assam & Ors. ; 2007 (4) GLT 587 as well as the judgment of the Hon’ble Supreme Court rendered in the case of R.S Garg -v s- State of Uttar Pradesh; (2006) 6 SCC 430. On the other hand, the learned cou nsel for the private respondent submitted that in view of the judgment of the Ap ex Court rendered in the case of RK Sabarwal -Vs- State of Punjab; (1995 ) 2 SC C 745, the roster system has to be followed if the cadre has the strength of mor e than one officer. Mr. Goswami, learned Standing Counsel submitted that the departme nt is following roster system and since there was backlog, respondent No. 3 was promoted in view of the decision taken in the meeting held on 12.08.2009. In the case of Khanindra Nath Choudhury (supra) , this court was considering filling up of vacancy of the posts of Superintendent in the departm ent of Sericulture. In the said department, there was four posts of Superintende nt, even then the learned Judge has held that the roster will operate within th e percentage of Reservation provided under the relevant act and the rules. His L ordship has further observed that applying the percentage under a single communi ty can claim a single post against a cadre strength of 4 posts of Superintendent . In the case of RS Garg ( Supra) , the Hon’ble Supreme Court has held tha t the percentage of Reservation has to be maintained in the post. In the said ca se, the Apex Court was considering the Reservation against cadre of two posts o f Deputy Director of Factories. Their Lordships have held that if 21 percent is reserved for Schedule Caste community against six posts, there cannot be reserv ation of more than one post as it would be impermissible are extracted below: 40. We are not concerned with the reasonableness or otherwise of the percentag e of reservation. 21 % of the posts have been reserved for the Scheduled Tribe ( sic Caste) candidates by the State itself. It, thus, cannot exceed the quota. It is not disputed that in the event of any conflict between the percentage of res ervation and the roster, the former shall prevail. Thus, in the peculiar facts a nd circumstances of this case, the roster to fill up the posts by reserved categ ory candidates, after every four posts, in our considered opinion, does not meet the constitutional requirements. The judgment of RK Sabarwal (supra) has already been considered by this Court in the judgment of Khanindra Nath Choudhury. In the said case also, the Ap ex Court has held that percentage of reservation has to be worked in relation to the number of posts which forms the cadre post. In the case before me, the admitted facts are that the cadre of Superint endent in the office of Chief Engineer, Water Resource Deptt. constitute only t wo posts and as such, the respondent No. 3, who hails from Schedule Caste commun ity for whom 7% reservation is permissible cannot claim either of the two post s. For the foregoing reasons, the promotion of respondent No. 3 vide impugn ed order dated 19.08.2009 is illegal and against the law. Consequently, the impu gned order is hereby set aside. The state respondents are directed to fill up t he vacancy by initiating the fresh selection process immediately. The matters re quired urgent attention of the authorities, preferably within a period of two mo nths from the date of receipt of this judgment since the petitioner No. 1 , Rame ndra Nath Sarmah is going to retire within less than 6(six) months, whereas Mrs. Bijuli Rabha is going to retire shortly. With the aforesaid directions, the writ petitions are disposed of.