WP(C) 6090/2007 BEFORE HON’BLE MR JUSTICE I A ANSARI JUDGEMENT AND ORDER (O R A L) Heard Mr. A. Dutta, learned counsel for the writ petitioner, and Mr. B. J. Ghosh, learned Government Advocate, appearing on behalf of the State responde nts. Heard also Mr. D. K. Das, appearing on behalf of respondent No. 3. 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 as well as the respondent No. 3 underwent Two years Diplo ma course in Forestry at SFS College, Dehradun. After completion of the said co urse, a merit list was published by the SFS College, Dehradun, wherein the name of the petitioner appeared at Sl. No. 19, whereas, the name of the respondent No . 3 appeared at S. No. 22. The names of the petitioner as well as respondent No . 3 also appeared in the select list published by the Assam Public Service Commi ssion (in short, ’APSC’), on 29.08.1986, wherein the name of the petitioner appe ared at S. No. 14, whereas, the name of the respondent No. 3 appeared at Sl. No. 15. On their successfully completing the course, they were appointed by the De partment of Forest, Government of Assam, on 03.05.1989, as Assistant Conservator of Forest (in short, ’ACF’) on probation. Thus, in the merit list as well as t he select list, aforementioned, thus, the petitioner, admittedly, acquired a pos ition higher than that of the respondent No. 3 and, consequently, the respondent No. 3 was junior to the present petitioner in the cadre of ACF. While the pres ent petitioner was promoted, on 08.09.2004, to the post of the Deputy Conservato r of Forest (in short, DCF’), the respondent No. 3 was promoted, on 15.02.1994, to the post of the Deputy Conservator of Forest (in short, DCF’), the promotion to respondent No. 3 having been granted earlier than to the present petitioner, in spite of the petitioner was senior to respondent No. 3, because of the fact t hat respondent No. 3 belonged to Scheduled Tribe (Hills). On 25.08.2005, the Se cretary to the Government of Assam, Department of Environment and Forests, issue d a notification, fixing the inter-se seniority of the officers in the cadre of DCF, wherein the name of the petitioner, for the first time, appeared at Sl. No. 52, whereas, the name of respondent No. 4 appeared at Sl. No. 24. 5. Aggrieved by the gradation list, dated 25.08.2005, aforementioned, the p etitioner made a representation, on 22.10.2005, to the appropriate authority see king correction of his seniority position in the said gradation list, dated 25.0 8.2005. As the representation did not yield any favourable result, the petition er is before this Court with this writ petition, made under Article 226 of the C onstitution of India, seeking issuance of appropriate writ(s) setting aside and quashing the gradation list, dated 25.08.2005, aforementioned and commanding the State respondents to correct the gradation list and publish the same, in accord ance with law, depicting the inter se seniority position of the petitioner and t he respondent No. 3. 6. The immediate question, therefore, which arises for consideration, is: w hether the petitioner, on being promoted to the cadre of DCF, on a later date th an the dates of promotions of the respondent Nos. 3, could have been treated as senior to respondent No. 3 in the cadre of DCF ? 7. It is noteworthy, in this regard, that following the 85th Amendment of t he Constitution, which was introduced by the Constitution (85th Amendment) Act, 2001, the Government of Assam issued an Office Memorandum, dated 12.03.2002, pre scribing the principle for fixation of seniority of reserved category candidates vis-à-vis general candidates in the promotional posts. This Office Memorandum laid down, inter alia, that by virtue of the Rules of Reservation/Roster, the Sc heduled Casts and Scheduled Tribes Government servants shall, on their promotion , be entitled to consequential seniority too and that this decision of the Gover nment shall be effective from 17.06.1995. 8. The contention of the petitioner is that the respondent No. 3 cannot be, and could not have been treated to be senior to the petitioner inasmuch as the Office Memorandum, dated 12.03.2002, aforementioned, which was off-shoot of the Constitution (85th Amendment) Act, 2001, and which was made effective from 17.06 .1995, is not applicable to the case of the respondent No. 3, for, respondent No . 3 had been promoted in the year 1994 itself. 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, respondent Nos. 3 had to be treated as senior to the petitioner in the cadre of DCF, though the petitioner was senior to the respondent Nos. 3 in the feeder cadre of ACF. In tune with this ground of the State respondents is the ground o f resistance offered by the private respondents, namely, respondent Nos. 3. 10. 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. 11. 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. 12. 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. 13. 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. 14. In the present case, the private respondent, namely, respondent No. 3, w as promoted to the cadre of DCF from the cadre of ACF on dates earlier than the cut-off date of 17.06.1995 inasmuch as respondent No. 3 was promoted, as already indicated above, on 15.02.1994, to the cadre of DCF. Thus, the private respond ent, 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 benef it of the Constitution (85th Amendment) Act, 2001. 15. 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. 16. 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. 17. In the case at hand, as already indicated above, when respondent Nos. 3 was promoted to the cadre of DCF, the Constitution (85th Amendment) Act, 2001, h ad not come into force and, therefore, he could not have been treated, in the ca dre of DCF, as senior to the present petitioner, when the present petitioner rec eived his 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 petitioner was, admi ttedly, senior to respondent Nos. 3 the cadre of ACF, he ought to have been trea ted, and shall, now, be treated, on his promotion, though on a later date, to th e cadre of DCF, as senior to the respondent No. 3. Even the Office Memorandum, d ated 12.03.2002, aforementioned did not justify treating respondent Nos. 3 as se nior to the present petitioner in the cadre of DCF. 18. 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 petitioner shall be treated to have always been senior to the respondent Nos. 3 in the cadre of DCF. 19. With the above observations and directions, this writ petition stands di sposed of. 20. No order as to costs.