Gauhati High Court

Ivy Gohain Dasgupta vs Bhagwan Pator And 11 Ors on 10 August, 2023

Author:
Achintya Malla Bujor Barua

Bench:
Achintya Malla Bujor Barua

Page No.# 1/36

GAHC010133812022

FR

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WA/46/2023

IVY GOHAIN DASGUPTA
CHIEF ENGINEER (INCHARGE) (SINCE RETIRED) RESIDENT OF QUARTER
NO. 74, CHANDMARI WATER RESOURCES COLONY, CHANDMARI,
GUWAHATI 781003

VERSUS

BHAGWAN PATOR AND 11 ORS.
S/O LT. AMAL CH. PATOR, R/O VILL. and P.O. NELLIE, DIST- MORIGAON

2:THE STATE OF ASSAM
REP. BY THE CHIEF SECY. TO THE GOVT. OF ASSAM
SECRETARIATE
DISPUR
GHY-6

3:THE SECY. TO THE GOVT. OF ASSAM
WATER RESOURCES DEPTT.
SECRETARIAT
BLOCK-B
THIRD FLOOR
DISPUR
GHY-6

4:THE ADDL. CHIEF SECY. TO THE GOVT. OF ASSAM
WELFARE OF PLAIN TRIBES and BACKWARD CLASSES DEPTT.
DISPUR
Page No.# 2/36

GHY-6

5:THE SECY. TO THE GOVT. OF ASSAM
JUDICIAL DEPTT.
DISPUR
GHY-6

6:THE PRINCIPAL SECY.
PERSONNEL B DEPTT.
GOVT. OF ASSAM
DISPUR
GHY-6

7:THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPT. DISPUR
GHY-6

8:THE LEGAL REMEMBRANCER AND SECY. TO THE GOVT. OF ASSAM
JUDICIAL DEPTT.
DISPUR
GHY-6

9:SRI ABANI MOHAN HAZARIKA
ADDL. CHIEF ENGINEER
AWRMI
OFFICE OF THE ADDL. CHIEF ENGINEER
WATER RESOURCES DEPT
BASISTHA
GUWAHATI 781029
ASSAM

10:PRANAB KUMAR TURUNG
S/O LATE LECHAM TURUNG
ADDL. CHIEF ENGINEER
CACHAR AND HILLS
WATER RESOURCES DEPT. SILCHAR
RESIDENT OF NO. 1 GANDHAKORAI GOAN
PO AND PS SARUPATHAR
DIST GOLAGHAT
ASSAM
11:SRI ANIL KUMAR JALAN

S/O PUSHKAR DUTTA JALAN
RESIDENT OF FLAT NO. 4C
PROTECT VIEW
Page No.# 3/36

HENGRABARI ROAD
DISPUR
GUWAHATI 781006

12:SRI SHANTANU DHAR

S./O LATE SANTI RANJAN DHAR
RESIDENT OF HOUSE NO 19
HARBALA ROAD
ULUBARI
GUWAHATI 781007
KAMRUP M ASSA

Advocate for the Petitioner : MR. K N CHOUDHURY

Advocate for the Respondent : GA, ASSAM

Linked Case : WA/239/2022

EQUALITY FORUM
REP. BY ITS SECRETARY

SHRI ARUN CHANDRA SAHARIA

S/O LT. HAIDIA SAHARIA

B.M. COMPLEX
RATNAGIRI PATH

BAMUNIMAIDAM
GUWAHATI- 781021.

VERSUS

THE STATE OF ASSAM AND 12 ORS.
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI - 781006.

2:THE ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT OF ASSAM
WPT AND BC DEPARTMENT
DISPUR
Page No.# 4/36

GUWAHATI - 781006.
3:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
ASSAM
DEPARTMENT OF WPT AND BC
DISPUR
GUWAHATI - 781006.
4:THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF ASSAM
PERSONNEL (B) DEPARTMENT
DISPUR
GUWAHATI - 781006.
5:DINABANDHU DEKA
S/O LATE GOPAL CHANDRA DEKA

R/O BHETAPARA GUWAHATI-781028
ASSAM.
6:DEEP PEGU
S/O DR. NUMAL CHANDRA PEGU

R/O MILAN NAGAR
DIBRUGARH
ASSAM -786003.
7:NAMESWAR PEGU
S/O LATE BANGSHIDHAR PEGU

R/O BORBARI BORTILA
H. NO-132
VIP ROAD
GUWAHATI-781026
KAMRUP (M)
ASSAM.
8:HRIDOY KR. BORO
S/O LATE RATNA KR BORO

R/O HOUSE NO-25
BISHNU RABHA NAGAR
NOONMATI
GUWAHATI-781020.
9:NIROLA PHANCHOPI ACS
W/O SRI AMAR SINGH TISSO

R/O 316 ADHAR APARTMENT
FLAT NO-101
MOTHER TERESA ROAD
GUWAHATI-781020
ASSAM.
10:ETSHAR KATHAR ACS
D/O SRI H.I. KATHAR
Page No.# 5/36

R/O GANESHGURI
GUWAHATI-781006
DISTRICT- KAMRUP
ASSAM.
11:RUPJYOTI DEORI
S/O LATE GHANAKANTA DEORI

R/O UPPER DEORI GAON

P.O.- NAHATIA
P.S.- PULIBAR
DIST.- JORHAT
ASSAM
PIN-785018.
12:SUKLESWAR DAS
S/O LATE MAHIN CH. DAS

R/O SAWKUCHI
HOUSE NO. 55

P.O.- SAWKUCHI
P.S.- BASISTHA
DIST.- KAMRUP (M) ASSAM
PIN-781040.
13:VOSIK KATHARPI
D/O SRI LONGBI RAM ENTI KATHAR

R/O RONGTHEANG
WARD NO. 7

P.O. AND P.S. DIPHU
DIST.- KARBI ANGLONG ASSAM
PIN-782460.
14:SANJAI KUMAR MAHANTA (INTERVENOR)
SON OF LATE NRIPENDRA NATH MAHANTA
R/O ABIRKUNJ APARTMENT
M.T. ROAD
HATIGARH
GUWAHATI-781021
DISTRICT- KAMRUP(M)
ASSAM.
------------
Advocate for : MR. M K CHOUDHURY
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND 12 ORS.
Page No.# 6/36

Linked Case : WA/162/2023

SANJAI KUMAR MAHANTA
S/O LATE NRIPENDRA NATH MAHANTA
RESIDENT OF ABIRKUNJ APARTMENT
M.T ROAD
HATIGARH
GUWAHATI 781021
DIST KAMRUP M ASSAM

VERSUS

BHAGWAN PATOR AND 22 ORS. B
S/O LATE AMAL CH. PATOR
RESIDENT OF VILLAGE AND PO NELLIE
DIST MORIGAON

2:THE STATE OF ASSAM
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
SECRETARIATE
DISPUR GUWAHATI 06
3:THE SECY. TO THE GOVT. OF ASSAM
WATER RESOURCES DEPTT.
SECRETARIAT
BLOCK-B
THIRD FLOOR
DISPUR
GHY-6
4:THE ADDL. CHIEF SECY. TO THE GOVT. OF ASSAM
WELFARE OF PLAIN TRIBES AND BACKWARD CLASSES DEPTT.
DISPUR
GHY-6
5:THE SECY. TO THE GOVT. OF ASSAM
JUDICIAL DEPTT.
DISPUR
GHY-6
6:THE PRINCIPAL SECY.
PERSONNEL (B) DEPTT.
GOVT. OF ASSAM
DISPUR
GHY-6
7:ANIL KUMAR JALAN
S/O PUSHKAR DUTTA JALAN
R/O FLAT NO- 4C
PROTECT VIEW
HENGRABARI ROAD
Page No.# 7/36

P.O- DISPUR
GUWAHATI-781006
KAMRUP (M)
ASSAM
8:SHANTANU DHAR
S/O LT SANTI RANJAN DHAR
R/O- HOUSE NO.- 19
HARBALA ROAD
ULUBARI
GUWAHATI-781007
KAMRUP (M)
ASSAM
9:JOGEN BAISHYA
SUPERINTENDENT ENGINEER
NORTH KAMRUP CIRCLE
IRRIGATION DEPARTMENT
DIST-NALBARI
10:AJIT KUMAR SARKAR
DEPUTY CHIEF ADMINISTRATOR
UPPER ASSAM CAD AUTHORITY
KATIMARI
DIST-NAGAON
11:DHIRAJ SAIKIA
DIRECTOR DESIGN
MINOR IRRIGATION
OFFICE OF THE CHIEF ENGINEER
IRRIGATION DEPARTMENT
CHANDMARI
GUWAHATI-781003
12:BHAIRAB KEOT
DEPUTY CHIEF ENGINEER
MINOR
OFFICE OF THE CHIEF ENGINEER
IRRIGATION DEPARTMENT
CHANDMARI
GUWAHATI-781003
13:GHANA SONOWAL
SUPERINTENDENT ENGINEER
DIBRUGARH CIRCLE
IRRIGATION DEPARTMENT
DIBRUGARH
ASSAM
14:DIMBA NATH MILI
DIRECTOR DESIGN
OFFICE OF THE ADDITIONAL CHIEF ENGINEER
ZONE-II
IRRIGATION DEPARTMENT
TEZPUR
Page No.# 8/36

ASSAM
15:JOYBINON LONGMALAI
SUPERINTENDENT ENGINEER
DIPHU CIRCLE
KARBI ANGLONG
ASSAM
16:PABITRA KR MEDAK
SUPERINTENDENT ENGINEER
IRRIGATION DEPARTMENT
NORTH LAKHIMPUR CIRCLE
LAKHIMPUR
ASSAM
17:SUMIT DAS
SUPERINTENDENT ENGINEER
SILCHAR CIRCLE
IRRIGATION DEPARTMENT
SILCHAR
ASSAM
18:BABUL CH. SONOWAL
SUPERINTENDENT ENGINEER
GOALPARA CIRCLE
IRRIGATION DEPARTMENT
GOALPARA
ASSAM
19:HEMANTA KR. MILI
DEPUTY ADMINISTRATOR
LOWER ASSAM CABA
CHANDMARI
GUWAHATI-781003
20:MONORANJAN BRAHMA
SUPERINTENDENT ENGINEER
MANGALDOI CIRCLE
IRRIGATION DEPARTMENT
MANGALDOI
ASSAM
21:MRIGEN BORO
SUPERINTENDENT ENGINEER
GUWAHATI CIRCLE
IRRIGATION DEPARTMENT
ULUBARI
GUWAHATI
------------
Advocate for : MR. K N CHOUDHURY
Advocate for : MR D MAHANTA appearing for BHAGWAN PATOR AND 22 ORS. B
Page No.# 9/36

BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
HONOURABLE MR. JUSTICE ROBIN PHUKAN

JUDGMENT & ORDER (ORAL)

Date : 10-08-2023
(A.M. Bujor Barua)

Heard Mr. KN Choudhury, learned Senior Counsel assisted by Mr. N
Gautam, learned counsel for the appellant in WA No. 46/2023 and WA No.
162/2023 and Mr. MK Choudhury, learned Senior Counsel assisted by Mr. M
Sarma, learned counsel for the appellant in WA No. 239/2022. Also heard
Mr. DK Das, learned counsel for the respondent Bhagwan Pator, Mr. D
Mozumdar, learned Additional Advocate General for the authorities in the
State of the Assam and Mr. D Mahanta, learned counsel for the respondents
No. 11, 12 and 13 in WA No. 163/2023.

2. The facts and circumstances leading to the present appeals flow from the
Constitution Seventy Seventh Amendment introducing
Article 16(4A)
by which it
was provided that nothing shall prevent the State from making any provisions
for reservation in the matters of promotion to any class or classes of posts in
the services under the State in favour of Scheduled Castes and Scheduled
Tribes, which in the opinion of the State, are not adequately represented in the
services under the State and the Constitution (Eighty Fifth) Amendment wherein
an amendment was brought in to the
Article 16 (4A)
providing for reservation in
the matters of promotion with consequential seniority. The Constitution Seventy
Page No.# 10/36

Seventh Amendment to the Constitution is as per the
Constitution (Seventy
Seventh Amendment) Act, 1995
and the Constitution (Eighty Fifth) Amendment
is as per the
Constitution (Eighty Fifth Amendment) Act, 2001
.

3. It has to be taken note that in the State of Assam by the
Assam Act
XII of
1979 i.e. the
Assam Scheduled Castes and Scheduled Tribes (Reservation of
Vacancies in Services and Posts) Act, 1978
(in short, the Act of 1978), as per
Section 5 thereof, reservation for Scheduled Castes and Scheduled Tribes in the
posts to be filled up by promotion was already statutorily provided for.

4. After the Seventy Seventh and Eighty Fifth Amendment to the
Constitution, the Government of Assam through the Department of Personnel
(B) had issued an Office Memorandum under the signature of the Commissioner
and Secretary to the Government of Assam in the Personnel Department
bearing No. ABP.59/96/163 dated 12.03.2002 providing for consequential
seniority to the Scheduled Castes and Scheduled Tribes Government servants on
their promotion by virtue of the rules of reservation and the Office
Memorandum clearly provides that such provision was consequent upon the
amendment of
Article 16(4A)
of the Constitution of India by the
Constitution
Eighty Fifth Amendment Act, 2001
. In other words, it has to be understood that
by virtue of
Section 5
of the Act of 1978 the provisions for reservation in
promotion to the reserved category candidates was already introduced in the
State of Assam prior to Seventy Seventh Amendment of the Constitution,
whereas by the Office Memorandum dated 12.03.2002 even the consequential
seniority upon such reservation on promotion being acted upon was also
provided pursuant to the Eighty Fifth Amendment of the Constitution.

5. It is also to be taken note that by the
Assam Act
XIX of 2012 notified by
the Notification No. LGL.128/2011/40 dated 21.08.2012 and published in the
Page No.# 11/36

Assam Gazette Extraordinary No. 383 dated 21.08.2012, Section 5A was
introduced after
Section 5
of the Act of 1978.
Section 5A
of the Act of 1978
provides for a post based roster for implementing reservation in promotion for
the members of reserved category. After the amendment of the Act of 1978 by
the
Assam Act
XIX of 2012, the Office Memorandum bearing
No.TAD/BC/68/2011/Pt-1/146 dated 29.12.2014 was issued under the signature
of the Principal Secretary to the Government of Assam in the WPT & BC
Department.

6. The opening paragraph of the Office Memorandum dated 29.12.2014
provides that the guidelines were in order to implement the post based roster
reservation in the matters of reservation of posts for Scheduled Castes and
Scheduled Tribes both plains and hills, in direct recruitment and promotions.

7. Considering the nature of arguments raised, it would be relevant to take
note of the provisions of Clause 1.11 of the Office Memorandum dated
29.12.2014 as well as Clause 14 which are extracted below:

"1.11 These rosters are an aid to determine the entitlement of different categories
with regard to the quota reserved for them in matters of appointment and promotion.
They are not intended to determine seniority in the cadre.

14. All existing orders on the subject are deemed to have been amended to the
extent herein."

8. WP(C) No.1560/2015 and WP(C) No.2680/2015 were instituted by a
registered society in the name of Equality Forum and four other persons serving
as Assistant Engineer (Civil) in the Irrigation Department and seeking promotion
to the next cadre of Assistant Executive Engineer, respectively.
In both the writ
petitions an issue was raised that as per the judgment rendered by the Hon'ble
Page No.# 12/36

Supreme Court in
M. Nagaraj & Ors. Vs. Union of India
&ors. reported in
(
2006)8 SCC 212 and U.P. Power Corporation Ltd. Vs. Rajesh Kumar
& ors.
reported in (2012)7 SCC 1, there is a requirement of the State to have a
quantifiable data on the backwardness and inadequacy of the representation of
the reserved category candidates for the purpose of promotion.

According to the
petitioners in the said two writ petitions, in the State of Assam no process was
initiated for obtaining the quantifiable data as required in
M. Nagaraj
(supra)
and
U.P. Power Corporation Ltd.
(supra), apart from the report of an one man
committee comprising of Sri H Sonowal, the then Commissioner and Secretary
to the Government of Assam in the Welfare of Plains Tribes and Backward
Classes, which report was also inadequate and unacceptable, and as such
further continuation with the provisions of reservation in promotion as well as
providing for consequential seniority would be unsustainable in law.

In the said
two writ petitions referred as Equality Forum, as reported in 2016(1) GLT 710,
by the judgment and order dated 23.12.2015, in paragraph 47 thereof, it was
provided that till the exercise of collection of quantifiable data relating to the
three constitutional requirements of backwardness of the class, inadequacy of
representation in public service and overall efficiency in the administration in the
event of reservation, as mandated in
M. Nagaraj
(supra) and
U.P. Power
Corporation Ltd.
(supra) is done and an opinion is formed by the State based
upon the quantifiable data so collected as to whether the enabling provisions of

Article 16(4A)
is to be invoked, reservation in promotion would remain in a
dormant state.
The paragraph 47 of the judgment in Equality Forum (supra) is
extracted hereinbelow:-

"47. In a separate proceeding relating to reservation in promotion in the
Irrigation Department (MC No. 726 of 2014 in WP(C) No. 707 of 2014), this
Court held that there was no quantifiable data before the State regarding the 3
Page No.# 13/36

(three) constitutional requirements, namely, backwardness of the class,
inadequacy of representation in public services and overall efficiency in
administration in the event of reservation in promotion. It was held that in the
absence of such quantifiable data question of forming any opinion by the State
to invoke the enabling provision of
Article 16 (4-A)
would not arise. Accordingly,
it was held that till the exercise of collection of quantifiable data relating to the
three constitutional requirements as mandated in
M Nagaraj
(supra) and
Uttar
Pradesh Corporation Limited
(supra) and formation of opinion by the State
based on the quantifiable data so collected that the enabling provision of
Article
16 (4-A)
is to be invoked was carried out, the 1978 Act as amended in 2012 in
so far it provides for reservation in promotion would remain in a dormant state."

9. In paragraph 67 of the judgment of Equality Forum (supra), it was
provided that the quantifiable data has to be both service and cadre specific and
what the one man commission appointed by the Government of Assam to
collect the quantifiable data had done was that it had made a general statement
on the backwardness of the scheduled castes and schedule tribes and had not
provided quantifiable data either on the backwardness or on the inadequacy of
representation having regard to the promotional posts. It further provided that if
upon undertaking the exercise of collecting data, it was found that in a
particular cadre there is adequate representation of the scheduled castes and
schedule tribes, providing for reservation in promotion to such cadre would not
be justified. In paragraph 68 it was provided that in the event reservation is
sought to be introduced, then an assessment of backwardness of the
communities having regard to their representation in the promotional cadres
would have to be carried out. In paragraph 74 of the judgment in Equality
Forum (supra) it was provided that though the State had made provision for
reservation in promotion by enacting the Act of 1978, which was amended in
the year 2012, implementation of the same would depend on acquiring the
quantifiable data, which exercise has to be carried out cadre wise in the context
of the service where the cadre is placed. Accordingly, it was provided that
reservation in promotion would have to be justified with the help of the
Page No.# 14/36

quantifiable data to show presence of two of the compelling reasons i.e.
backwardness and inadequacy of representation cadre wise, which would then
have to be harmonized with the efficiency in administration as mandated under

Article 335.
Paragraph 74 of the judgment in Equality Forum (supra) is extracted
herein below:-

"74. As held in
M. Nagaraj
(supra), implementation of the scheme of
reservation in promotion and collection of quantifiable data for the same to
form an opinion on backwardness and inadequacy of representation and to
harmonise the same with the constitutional limitation of efficiency in
administration under
Article 335
is a categorical imperative. Collection of data
and the opinion based thereon rendered by the One Man Commission do not
conform to the norms
laid down by
the Apex Court in M. Nagaraj.

Therefore,
there can be no manner of doubt that the exercise carried out by the One-Man
Commission does not fulfil the mandate
laid down in

M. Nagaraj
(supra). The
cabinet memorandum prepared by the WPT and BC Department while
forwarding the recommendation of the One Man Commission to the Cabinet for
approval also completely missed the point by stating in paragraph 8
thereof that the general established fact is that SCs and STs are comparatively
lagging behind the general category in many areas like justice, social, economic
and political fields; otherwise, the reservation provision would not have come
into existence in the Constitution. Therefore, according to the WPT and BC
Department, further analytical study in this regard in the name of collecting
quantifiable data would be denial of justice to the SCs and STs. I am afraid the
WPT and BC Department had completely misdirected itself and had totally
overlooked the mandate of the Apex Court in M. Nagaraj, which has vitiated the
cabinet memorandum and the consequent approval of the Cabinet to such
recommendation. Though State has made provision for reservation in promotion
by enacting the 1978 Act, which was amended in the year 2012,
implementation of the same would depend on acquiring of quantifiable data
with regard to the 2(two) compelling reasons, which exercise has to be carried
out cadre-wise in the context of the service where the cadre is placed. That
having not been done, the report of the One-Man Commission would be of no
legal consequence and would not enable the State to give effect to the
provisions of the 1978 Act as amended in so far reservation in promotion is
concerned. At the cost of repetition, it is reiterated that if the State desires to
give effect to the provisions of the 1978 Act as amended in the year 2012 by
providing for reservation in promotion, it would have to justify the same with
the help of quantifiable data to show presence of the 2(two) compelling
reasons, backwardness and inadequacy of representation, cadre-wise in the
context of the service where the cadre is placed, which would then have to be
harmonised with efficiency in administration as mandated under
Article 335."

Page No.# 15/36

10. Pursuant to the judgment dated 23.12.2015 in Equality Forum (supra), the
Government of Assam in the Department of Welfare of Plains Tribes and
Backward Classes issued the Office Memorandum No.TAD/BC/68/2011/Pt-I/207
dated 03.08.2016.
The opening paragraph of the said Office Memorandum
dated 03.08.2016 provides that it was issued as per the guidelines laid down by
the Hon'ble Supreme Court in
M. Nagaraj
(supra) and
U.P. Power Corporation
Ltd.
(supra).
Thereafter in the first paragraph itself reference is made to the
report of the one man committee appointed by the Government of Assam for
collecting quantifiable data which was assailed before the High Court in Equality
Forum (supra) and accordingly, the provisions of the judgment dated
23.12.2015 in Equality Forum (supra) is referred and quoted. The subject matter
of the Office Memorandum dated 03.08.2016 is stated to be "Review of
Government Policy of Reservation in Promotion with reference to the Hon'ble
Gauhati High Court judgments".

11. The Office Memorandum dated 03.08.2016 is extracted as below:

" GOVERNMENT OF ASSAM
DEPARTMENT OF WELFARE OF PLAINS TRIBES AND BACKWARD CLASSES
DISPUR ::::ASSAM
No. TAD/BC/68/2011/Pt-I/207 dated Dispur 3 rd August, 2016
OFFICE MEMORANDUM
Subject: Review of Government Policy of Reservation in Promotion with reference to
the Hon'ble Gauhati High Court judgments

-------

---------

With a view to bringing the policy of reservation in promotion for reserved
categories in line with the directions of the Hon'ble High Court, Government have
reviewed the existing procedure of effecting reservation in promotion and accordingly
lays down the following guidelines to be followed while considering promotion in any
Page No.# 16/36

cadre in any establishment

i) The policy of reservation in promotion shall continue.

ii) ii) Each establishment while taking up the process of promotion in a
particular cadre of a service, shall examine the representation of SC, ST
(P) and ST (H) candidates in the cadre in comparison with the prescribed
percentage of reservation and calculate shortfall if any, in the cadre with
reference to that particular year. Shortfall of reservation of a particular
reserved category in a cadre means the difference between the total
number of reserved posts for that category in the cadre and the number
of persons of that category holding the posts in the cadre. While
calculating the shortfall, all candidates belonging to the same category
[SC or ST(P) or ST (H)] shall be taken into account irrespective of the
mode of their entry into the cadre i.e. whether on account of seniority-

cum-merit or merit cum seniority, as the case may be, or through any
other process admissible in law or by way of reservation. If in a
particular cadre, SCs and STs are not adequately represented and
shortfall is found to exist in the cadre, they may be considered as
backward insofar as that particular cadre is concerned. Such shortfall
shall be filled up by the concerned category of incumbents within the
zone of consideration either on account of seniority-cum-merit/ merit-
cum-seniority or by way of providing reservation as the case may be, till
the prescribed percentage in respect of the said category is achieved.

iii) If no eligible incumbent belonging to the shortfall category is available
within the zone of consideration, this will further substantiate the status
of backwardness and inadequate representation of category in the cadre
and therefore the number of posts that are required to meet the
calculated shortfall shall be kept vacant and the vacancy shall be carried
forward and filled up in the next year. In case, sufficient number of SC or
ST (P) or ST (H) candidates fit for promotion against reserved posts are
not available and if the posts cannot be allowed to remain vacant on
grounds of maintaining efficiency in administration, the appointing
authority may with full justification, refer the vacancy to the Department
of WPT and BC for de-reservation, subject to the condition that no
candidate belonging to the category for which the post is reserved is
available within the zone of consideration placed before the annual
Selection Committee/ Departmental Promotion Committee for two
consecutive years. In other words, the concerned Department may move
proposal for de-reservation in the third year.

iv) If an occasion arises during the promotion process, in which stipulated
percentage in respect of reserved category is met, but in the gradation
list/ seniority list there are candidates of reserved category who on merit
is entitled to the promotion, his / her case shall be considered for
promotion on merit if such candidate has not gained the seniority by way
of any accelerated promotion earlier.

Page No.# 17/36

v) As regards the question of maintaining administrative efficiency as
required under
Article 335
of the Constitution of India, Hon'ble High
Court held that, "......it should be assessed applying objective measurable
standards." In that sense, the Annual confidential Reports (ACR)/ Annual
Performance Appraisal Reports (APAR) of the incumbent along with the
length of service, participation in training programs concerning job
requirements, acquisition of degrees or diplomas or diplomas on subjects
if mandatory to the job, should be considered as the yardstick of
measuring efficiency.

vi) It shall be the responsibility of the concerned appointing authority to
provide adequate information concerning the above to the Selection
Committee (Department Promotion Committee ) which shall evaluate all
relevant parameters while making its recommendation.

This shall come into force with immediate effect.

Sd/-

(Rajiv Kumar Bora IAS)
Additional Chief Secretary to the Govt. of Assam, WT & BC
Department, Dispur."

12. The respondent No. 1 in WA No. 46/2023 namely, Shri Bhagwan Pator
instituted WP(C) No. 5005/2016 assailing the Clauses (iii) and (iv) of the Office
Memorandum dated 03.08.2016 on the ground that it would have been an
effect of de-reservation in respect of promotion and secondly, promotion on the
basis of merit which is otherwise due to the reserved category candidates would
be taken away. The society Equality Forum which had earlier instituted the writ
petition resulting in the judgment dated 23.12.2015 in Equality Forum (supra)
had instituted WP(C) No. 5026/2016 assailing the entire Office Memorandum
dated 03.08.2016 on the ground that although in paragraph 47 of the judgment
in Equality Forum (supra), it was provided that the reservation in promotion
would be kept in a dormant state till such time the quantifiable data is collected
by the State in respect of backwardness and inadequacy of representation of
the reserved candidates and also harmonize with the efficiency in administration
as required under
Article 335
, but by the Office Memorandum, reservation in
Page No.# 18/36

promotion is sought to be brought back without adhering to the requirement of
collection of quantifiable data.

13. The two writ petitions being WP(C)No.5005/2016 and WP(C)5026/2016
was decided by the learned Single Judge by the Judgment and Order dated
06.06.2022.

14. Without going into the arguments and counter arguments that were raised
by the parties in the aforesaid two writ petitions, we take note of the
determinations that had been made by the learned Single Judge at paragraph 7
of the said judgment dated 06.06.2022 which are extracted as below:

"7. The aforesaid determinations can be summarized in the following manner:

I. The Policy of the state in providing reservation in promotion with
consequential seniority is discernable from
Section 5
of the 1978 Act read
with O.M. dated 12.03.2002.

II. The Office Memorandum dated 12.03.2002 shall hold the field till such
policy is expressly repealed by the State.

III. III. O.M. dated. 03.06.2016 is notified laying procedure for collection of
quantifiable data on Backwardness and inadequacy of representation and
determining efficiency in administration while giving effect to such policy of
providing reservation."

15. In paragraph D(iii) of the said judgment it has further been held as
extracted:

"D(iii) That being the position, this court un-hesitantly holds that the policy of
providing reservation in promotion with consequential seniority being holding the field
as per O.M. dated 12.03.2002, the State is not within its competence and jurisdiction to
deprive such service benefit to a meritorious reserved category candidates and that too
without expressly bringing such policy by superseding the benefit granted under O.M.
dated 12.03.2002."

Page No.# 19/36

16. From the judgment and order dated 06.06.2022 of the learned Single
Judge, it is discernible that in respect of the challenge to Clause (iv) of the
Office Memorandum dated 20.01.2016, it has been provided that the policy of
providing reservation in promotion with consequential seniority having been
holding the field as per the Office Memorandum dated 12.03.2002, the State is
not within its competence and jurisdiction to deprive such benefit to a
meritorious reserved category candidate and that too without expressly bringing
such policy by superseding the benefits granted under the Office Memorandum
dated 12.03.2002. With regard to the challenge of the society Equality Forum as
regards the entire Office Memorandum dated 03.08.2016, it has been provided
in the order dated 06.06.2022 of the learned Single Judge in paragraph 7(VIII)
that given the dictum of the Honb'ble Supreme Court in
Jarnail Singh Vs. Laxmi
Narayan Gupta
reported in 2018 (10) SCC 396, the judgment dated 23.12.2015
rendered in Equality Forum (supra) has become redundant.

In other words, by
the judgment dated 06.06.2022 in WP(C) No. 5005/2016 and WP(C) No.
5026/2016, the learned Single Judge firstly held that Clause (iv) of the Office
Memorandum dated 03.08.2016 has to be interpreted in a manner that the
policy of reservation in promotion with consequential seniority benefit having
been provided by the Office Memorandum dated 12.03.2002, it is beyond the
competence of the State to deny service benefit to a meritorious reserved
category candidate without superseding the earlier Office Memorandum dated
12.03.2002 and with regard to the claim of the society Equality Forum that
although in paragraph 47 of the judgment in Equality Forum (supra) it has been
provided that till the quantifiable data is collected the policy of reservation shall
remain dormant but the requirement of keeping the policy dormant shall not
hold good in view of the subsequent judgment of the Hon'ble Supreme Court
Page No.# 20/36

rendered in
Jarnail Singh-I
(supra).

17. Smti. Ivy Gohain Dasgupta who is an unreserved category candidate and is
a respondent in WP(C)No.2999/2020 had instituted IA(C) No.2033/2022 seeking
leave to file an appeal against the judgment and order dated 06.06.2022 in
WP(C)No.5005/2016 and WP(C)5026/2016 on the ground that the conclusions
arrived therein had adversely affected the legal rights of the said applicant.
Along with the interlocutory application, a memo of writ appeal was also
presented before the Registry which was not numbered at that stage. IA(C)No.
2033/2022 was given its consideration by the order dated 31.12.2023 granting
leave to Smti. Ivy Gohain Dasgupta to prefer an appeal against the judgment
and order dated 06.06.2006 in WP(C) No. 5005/2016 and WP(C) No.
5026/2016. In the circumstance WA No. 46/2023 had been registered. Some of
the unreserved category candidates had instituted WA No.162/2023 also being
aggrieved by the judgment and order dated 06.06.2022 in WP(C)No. 5005/2016
and WP(C) No. 5026/2016.

18. The society Equality Forum who were the writ petitioner in
WP(C)No.5026/2016 had instituted WA No.239/2022 on their own grounds
being aggrieved by the conclusion of the learned Single Judge as regards their
plea that inspite of the judgment in Equality Forum (supra) in paragraph 47,
reservation in promotion have not been kept in a dormant state and by the
Office Memorandum dated 03.08.2016, reservation in promotion was allowed in
some manner without collecting the necessary quantifiable date.

19. Mr. KN Choudhury, learned senior counsel for the appellant Smti. Ivy
Gohain Dasgupta and the other appellants in WA No.162/2023 has raised the
contention that by the Office Memorandum dated 29.12.2014 the consequential
seniority meted to the reserved category candidates by the earlier Office
Page No.# 21/36

Memorandum dated 12.03.2002 had been superseded, meaning thereby that
the provisions of the consequential seniority pursuant to the enabling provisions
of the Constitution (Eighty Fifth) amendment had been withdrawn. Accordingly,
Mr. KN Choudhury, learned Senior Counsel assails the conclusion of the learned
Single Judge in the judgment and order dated 06.06.2022 in
WP(C)No.5005/2016 and WP(C)5026/2016.

20. As regards Clause (iv) of the Office Memorandum dated 03.08.2016 it is the
submission of Mr. KN Choudhury, learned senior counsel that as consequential
seniority itself has been withdrawn by the State authority no further question
remains on any claim of the reserved category candidates for consideration on
merit pursuant to their consequential seniority. Mr. KN Choudhury, learned
Senior Counsel substantiated his contentions by referring to Clauses 1.11 and
14 of the Office Memorandum dated 29.12.2014 that a conjoint reading of the
provisions of the said two clauses would make it apparent that the earlier
provision of consequential seniority meted by the Office Memorandum dated
12.03.2002 had been withdrawn. It is also the submission of Mr. KN Choudhury,
learned Senior Counsel that consequential seniority is pursuant to an enabling
provision under
Article 16 (4A)
of the Constitution as introduced by the
Constitution (Eighty Fifth) amendment and, therefore, it being an enabling
provision, it always remain a discretion of the State authorities to withdraw the
consequential seniority as per their requirement.

21. Mr. DK Das, learned counsel for the respondent Sri Bhagwan Pator per
contra contends that Clauses 1.11 and 14 of the Office Memorandum dated
29.12.2014 even on a conjoint reading do not indicate in any manner that the
consequential seniority meted by the earlier Office Memorandum dated
12.03.2002 had been withdrawn.

Page No.# 22/36

22. Mr. MK Choudhury, learned Senior Counsel for the appellant Equality Forum
on the other hand has raised the contention that the provisions of paragraph 47
of the judgment in Equality Forum (supra) [hereinafter for convenience referred
as Equality Forum-I(supra)] was explicit enough to provide that till such time
the quantifiable data on the elements of backwardness and inadequacy in
representation coupled with a harmonization of administrative efficiency under

Article 335
is obtained, the provisions for reservation in promotion would remain
dormant, and therefore as no collection of any such quantifiable data has been
put on record, the embargo provided by paragraph 47 of the judgment in
Equality Forum (supra) prevails and no such benefit of reservation in promotion
can be given to any of the reserved category candidates let alone giving any
consequential seniority.

23. Mr. DK Das, learned counsel for the respondents who represents all the
reserved category candidates per contra raises the contention that in
Jarnail
Singh-I
(supra) in paragraphs 32 and 36 the Supreme Court having provided
that the provisions in
M Nagaraj
(supra), providing that the State has to collect
quantifiable data showing backwardness of the Scheduled Caste and Scheduled
Tribe being contrary to the Nine Judges Bench in
Indra Sawhany Vs. Union of
India and Others
reported in 1992 Supp.(3) SCC 217, to be invalid to such
extent that as there is a presumption of backwardness in favour of the
Scheduled Caste and Scheduled Tribe communities, therefore there may not be
a further requirement to obtain any quantifiable data to substantiate their
backwardness.

24. The relevant portion of the paragraph 32 and 36 are extracted as below:

"32. It will be seen that this Bill contains two things that are different from
Article
16(4-A)
as already enacted. First and foremost, it clarifies that the Scheduled Castes
Page No.# 23/36

and the Scheduled Tribes that are notified under
Articles 341
and
shall be deemed
to be backward, which makes it clear that no quantifiable data is necessary to
determine backwardness....."

36. Thus, we conclude that the judgment in
Nagaraj [M. Nagaraj v. Union of India
,
(2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] does not need to be referred to a
seven-Judge Bench.

However, the conclusion in
Nagaraj [M. Nagaraj v. Union of India
,
(2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] that the State has to collect quantifiable
data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being
contrary to the nine-Judge Bench in
Indra Sawhney (1) [Indra Sawhney v. Union of
India
, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] is held to be invalid to this
extent."

25. Mr. DK Das, learned counsel also refers to the judgment of the Supreme
Court rendered in
M Nagaraj
(supra), wherein in paragraph 47 it has been
provided that the collection of data as regards inadequacy in representation of
the reserved category candidates would have to be done cadre wise and
submits that as the collection of data as regards inadequacy would have to be
done cadre wise, therefore, there cannot be a centralized procedure set in place
for collection of the data regarding inadequacy in representation and such
inadequacy would have to be determined cadre wise and case wise in respect of
every such promotion under consideration in respect of any given cadre.

26. It is the further contention of Mr. DK Das, learned counsel for the reserved
category candidates that the Hon'ble Supreme Court in
B.K. Pavitra and others
Vs. Union of India and others
, reported in (2019) 16 SCC 129 , in paragraph 126
had held that the framers of the Constitution did not define what is meant by
the phrase "efficiency of administration" and that
Article 335
cannot be
construed on the basis of a stereotypical assumption that roster point
promotees drawn from the Scheduled Castes and Scheduled Tribes are not
efficient or that efficiency is reduced by appointing them. It is also provided in
paragraph 116 of
the said judgment
that no citizen can be discriminated on
Page No.# 24/36

account of religion or race.

27.
Paragraphs 116 and 126 of B.K. Pavitra
(supra) are extracted as below:

"116. By recognising that formal equality of opportunity will be insufficient in fulfilling
the transformative goal of the Constitution, these members recognised that the
conception of equality of opportunity must recognise and account for existing societal
inequalities. The most revealing debates as to how the Constituent Assembly
understood equality of opportunity under the Constitution took place on 30-11-1948.
Members debated draft
Article 10 (which would go on to become
Article 16
of the
Constitution).
In these debates, some members understood sub-clause (4) (providing
for reservations) as an exception to the general rule of formal equality enunciated in
sub-clause (1). Illustratively, an articulation of this position was made by Mohammad
Ismail Khan, who stated : (CAD Vol. VII)
"... there can be only one of these two things--either there can be clear equal
opportunity or special consideration.
Article 10
says there shall be equality of
opportunity, then it emphasises the fact by a negative clause that no citizen shall be
discriminated on account of religion or race. It is quite good, but when no indication is
given whether this would override
Article 296
or
Article 296
is independent of it, we
are certainly left in the lurch. What would be the fate of the minorities? [
Article 296

stated that special considerations shall be shown to minorities to ensure
representation in the services]..."

126. The Constitution does not define what the Framers meant by the phrase
"efficiency of administration".
Article 335
cannot be construed on the basis of a
stereotypical assumption that roster point promotees drawn from the SCs and STs are
not efficient or that efficiency is reduced by appointing them. This is stereotypical
because it masks deep-rooted social prejudice. The benchmark for the efficiency of
administration is not some disembodied, abstract ideal measured by the performance
of a qualified open category candidate. Efficiency of administration in the affairs of the
Union or of a State must be defined in an inclusive sense, where diverse segments of
society find representation as a true aspiration of governance by and for the people. If,
as we hold, the Constitution mandates realisation of substantive equality in the
engagement of the fundamental rights with the directive principles, inclusion together
with the recognition of the plurality and diversity of the nation constitutes a valid
constitutional basis for defining efficiency. Our benchmarks will define our outcomes. If
this benchmark of efficiency is grounded in exclusion, it will produce a pattern of
governance which is skewed against the marginalised. If this benchmark of efficiency
is grounded in equal access, our outcomes will reflect the commitment of the
Constitution to produce a just social order. Otherwise, our past will haunt the inability
Page No.# 25/36

of our society to move away from being deeply unequal to one which is founded on
liberty and fraternity. Hence, while interpreting
Article 335
, it is necessary to liberate
the concept of efficiency from a one-sided approach which ignores the need for and
the positive effects of the inclusion of diverse segments of society on the efficiency of
administration of the Union or of a State. Establishing the position of the SCs and STs
as worthy participants in affairs of governance is intrinsic to an equal citizenship. Equal
citizenship recognises governance which is inclusive but also ensures that those
segments of our society which have suffered a history of prejudice, discrimination and
oppression have a real voice in governance. Since inclusion is inseparable from a well-
governed society, there is, in our view, no antithesis between maintaining the
efficiency of administration and considering the claims of the SCs and STs to
appointments to services and posts in connection with the affairs of the Union or of a
State."

28. Accordingly, it is the contention of Mr. DK Das, learned counsel for the
reserved category candidates that the Hon'ble Supreme Court of India having
done away with the requirement of collection of quantifiable data regarding
backwardness and also having held that collection of quantifiable data regarding
inefficiency in administration cannot be on a stereotypical assumption that
reserved category candidates are otherwise inefficient in administration, what
further remains is the collection of quantifiable data in respect of adequacy or
inadequacy of representation of reserved category candidates. But, again the
collection of quantifiable data in respect of adequacy or inadequacy of
representation had also been circumscribed by the Hon'ble Supreme Court in

Jarnail Singh and Others Vs. Lachmi Narain Gupta and Others
in Civil Appeal No.
629/2022 (Jarnail Singh-II) and therefore such collection of quantifiable data
would now have to be understood as per the circumscribed requirement as
provided by the Hon'ble Supreme Court. As the circumscribed requirement is to
collect quantifiable data cadre wise and service wise, therefore, it would be
more prudent if instead of undertaking an exercise to obtain the quantifiable
data in a comprehensive manner applicable for the whole of the State in respect
Page No.# 26/36

of all such cadres and services that are in place, the same purpose can be
achieved if the Departmental Promotion Committee while considering any
promotion to the respective cadres, before proceeding with the promotion,
obtains the quantifiable data regarding adequacy or inadequacy of
representation of reserved category candidates in respect of such promoted
cadre for which the promotion process would be undertaken.

29. With regard to the contention raised by Mr. KN Choudhury, learned senior
counsel for the appellant Smti. Ivy Gohain Dasgupta and the other appellants
that the provision for consequential seniority having been provided by the
Constitution (Eight Fifth) amendment, which itself is an enabling provision, it is
always the discretion of the State authorities who provides for such
consequential seniority to also withdraw the provision of the consequential
seniority, it is taken note that an enabling provision in a statute is understood to
be a provision which does not provide for any specific provision, but the
statutory provision enables the executive to provide for such provision, if
otherwise advised or justified under the law, meaning thereby that it is a
discretion vested on the executive authority through delegation to either provide
for or not to provide for such provisions. The only compelling circumstance that
remains would be that once in exercise of the enabling provision if a particular
provision is provided for, till such provision remains in place, it would be binding
for all as regards the requirement to implement such provision. But, at the same
time, in the same manner in which a discretion was vested in the executive
authorities to provide for such provision, if so advised and justified under the
law, equally it would also be open for the State authorities to withdraw such
provision as per their own discretion again subject to if justified in the
circumstance as well as under law. From such point of view, we are in
Page No.# 27/36

agreement with Mr. KN Choudhury, learned Senior Counsel that the Office
Memorandum dated 29.12.2014 could have also withdrawn the benefit of
consequential seniority meted to the reserved category candidate by the earlier
Office Memorandum dated 12.03.2002. But at the same time, although the
enabling provision enables the State authorities to withdraw such benefit, but
what would further have to be examined as to whether the Office Memorandum
dated 29.12.2014 in fact withdraws the benefit of consequential seniority meted
by the Office Memorandum dated 12.03.2002.

30. To substantiate the contention that the Office Memorandum dated
29.12.2014 had in fact withdrawn the consequential seniority earlier given by
the Office Memorandum dated 12.03.2002, Mr. KN Choudhury, learned Senior
Counsel relies upon the Clauses 1.11 and 14 of the Office Memorandum dated
29.12.2014. A reading of Clause 1.11 of the Office Memorandum dated
29.12.2014 makes it discernible that the rosters are in aid to determine the
entitlement of different categories with regard to the quota reserved for them,
but they are not entitled to determine the seniority. In other words, we are
required to interpret the meaning of the word 'they' appearing in Clause 1.11.

31. The expression 'they' refers to the earlier sentence in Clause 1.11 i.e. that
the rosters are an aid to determine the entitlement of different categories. In
other words, the expression 'they' refers to the rosters. The first paragraph of
the Office Memorandum dated 29.12.2014 provides that the Office
Memorandum had been issued consequent upon the amendment to the Act of
1978 and the acceptance of the recommendation of the one man commission
constituted by the Government of Assam.

32. We have taken note that the recommendation of the one man commission
referred in the Office Memorandum dated 29.12.2014 had in the meantime been
Page No.# 28/36

held to be unacceptable as per the judgment of this Court in Equality Forum
(supra). At this stage, we take note that in fact there are two judgments
available, both in respect of petitions instituted by the society Equality Forum.
One such is the judgment dated 23.12.2015 rendered in WP(C) No. 1560/2015
and WP(C) No. 2680/2015, reported in 2016 (1) GLT 710 and the other is the
judgment and order dated 06.06.2022 in WP(C) No. 5005/2016 and WP(C) No.
5026/2016. For clarity and convenience, we refer the judgment rendered in
Equality Forum (supra) reported in 2016 (1) GLT 710 to be Equality Forum-I and
the judgment dated 06.06.2022 in WP(C) No. 5005/2016 and WP(C) No.
5026/2016 to be Equality Forum-II.

33. In other words, the purport of the Office Memorandum dated 29.12.2014
has to be understood that it was issued consequent upon the amendment to the
Act of 1978. As noted above, by the
Assam Act
XIX of 2012, the Act of 1978
had been amended by which Section 5A thereof had been introduced. It had
also been taken note hereinabove that
Section 5A
of the Act of 1978 provides
for post based roster for implementing reservation in promotion.

34. As the Office Memorandum dated 29.12.2014 had been issued consequent
upon the amendment by which
Section 5A
of the Act of 1978 had been
introduced, the word 'roster' in Clause 1.11 and the further provision that the
roster do not intend to determine seniority would have to be understood in the
context of Section 5A. All that
Section 5A
of the Act of 1978 provides is that
earlier the reservation in promotion was given effect by following the procedure
of vacancies, but upon introduction of Section 5A, the same would be done by
following the roster point in the roster scale.

35. If a reservation in promotion is given effect or implemented based upon
the roster point in the roster scale, there is always a possibility that a reserved
Page No.# 29/36

category candidate may be promoted against the post which may be a little
higher up in the roster scale as the said roster point post may have fallen
vacant. In that circumstance, the provision of Clause 1.11 would have to be
understood that the seniority referred therein related to the roster would mean
that if a reserved category candidate is promoted against a roster post which
would be a little higher in the roster scale in comparison to the other promotees
who may be a little lower in the roster scale, the same will not entail any
seniority over the others, who were also promoted in the same process but
placed perhaps a little lower in the roster scale. In other words, placement of a
reserved category candidate in a given roster point irrespective of the position
would not determine the seniority of such candidates and the seniority would be
determined otherwise under the law depending on the manner and
circumstance in which the promotion was given effect.

36. It being the meaning of the provision of Clause 1.11, it must be
understood that Clause 1.11 of the Office Memorandum dated 29.12.2014 does
not relate to any consequential seniority of a reserved category candidate. In
the context of the meaning attributed to Clause 1.11 in the manner indicated
above, when we read the provision of Clause 14 of the Office Memorandum
dated 29.12.2014, it is noticed that the said Clause provides that all existing
orders on the subject are deemed to have been amended to the extent as
provided in the said Office Memorandum. The expression 'are deemed to have
been amended to the extent hereinabove' would mean that it also includes the
extent as provided in Clause 1.11 meaning thereby that the aspect of
determination of seniority provided therein is not related to any consequential
seniority, but it relates to a provision that by following the roster point system, if
a reserved category candidate is promoted in a post, which is otherwise a little
Page No.# 30/36

higher in the roster scale, it being positioned in the higher in the roster scale,
will not determine the seniority of that person over others who may be
promoted against a post in the roster scale which may be a little lower.

37. Accordingly, it would have to be concluded that a conjoint reading of
Clause 1.11 and Clause 14 of the Office Memorandum dated 29.12.2014 would
mean that the consequential seniority that was otherwise meted by the Office
Memorandum dated 12.03.2002 had not been withdrawn.

38. With regard to the contention of Mr. MK Choudhury, learned senior
counsel for the petitioner in WA No. 239/2022, we take note that as per
paragraph 47 of the judgment dated 23.12.2015 in Equality Forum-I (supra)
there is an expressed prohibition by a judicial pronouncement that till such
quantifiable data on backwardness, inadequacy of the representation and
inefficiency in administration is collected no reservation in promotion in favour of
the reserved category candidates can be further carried forward. But paragraph
74 of the judgment dated 23.12.2015 in Equality Forum-I (supra) provides for
collection of quantifiable data in respect of backwardness of the reserved
category candidates as well as inadequacy of their representation which again
would have to be determined cadre wise and service wise in the respective
departments and further, upon such data being obtained there would be a
requirement of harmonization with the efficiency in administration as provided
under
Article 335
of the Constitution of India.
But the requirement of the
provisions in the judgment dated 23.12.2015 in Equality Forum-I (supra) would
again have to be read in the context of the submissions of Mr. DK Das, learned
counsel for the unreserved category candidates that in paragraph 36 of
Jarnail
Singh-I
(supra) there is a presumption in law in favour of backwardness of the
reserved category candidates and in view of such presumption in law there is no
Page No.# 31/36

further requirement of obtaining any quantifiable data to substantiate the
backwardness.

39. The said provision being rendered by a Constitution Bench judgment of
the Hon'ble Supreme Court, when read together with the provisions of the
judgment in Equality Forum-I (supra) it has to be understood that there would
be no further requirement under the law for any collection of quantifiable data
to substantiate the backwardness of the reserved category candidates inasmuch
as there is a presumption in law as regards the existence of backwardness.

Further, we also have to take note that in paragraph 47 of the judgment of
Hon'ble Supreme Court in
Jarnail Singh-II
(supra) it has been provided that the
adequacy or inadequacy of representation of reserved category candidates
would have to be determined cadre wise, service wise and in the given relevant
department.
The said provision is also consistent with the provisions in
paragraph 74 of the judgment dated 23.12.2015 in Equality Forum-I (supra)
that the collection of quantifiable data regarding adequacy or inadequacy of
representation would have to be determined cadre wise, service wise and
department wise.

40. If the determination of the quantifiable data is for adequacy or
inadequacy of representation of the reserved category candidates in a given
cadre of a service in a particular department of the Government, we are in
agreement with the contentions raised by Mr. DK Das, learned counsel for the
respondent Sri Bhagwan Pator that it would be more prudent and appropriate to
undertake such exercise through the Departmental Promotion Committee (in
short, DPC) itself before embarking upon a promotion process for a given cadre.
The same would be prudent inasmuch as the DPC will have all the data before it
as to the cadre strength of the promoted cadre where the promotion is to be
Page No.# 32/36

considered and out of the total cadre strength how many posts in the cadre are
to be earmarked for the reserved category candidates and out of the earmarked
reserved category posts how many posts are being occupied by the reserved
category candidates. In other words, if the reserved category candidates are
occupying all the posts earmarked for the reserved category candidates in a
given cadre it can be easily understood that in that given cadre there is an
adequacy of the representation of the reserved category candidates and in the
event the number of the reserved category candidates in the cadre is less than
the number of posts earmarked for the reserved category candidates, it has to
be understood that there is an inadequacy of representation in that given cadre.
If the determination would be made in the above manner, we are of the view
that it would be more appropriate and apposite for the DPC to make such
determination. But again such determination would have to be made before
initiating the actual promotion process.

41. As regards the third requirement of obtaining quantifiable data that it
should also harmonize with the inefficiency in administration, we take note of
the provisions of the judgment of the Hon'ble Supreme Court in
B.K. Pavitra-II

(supra) wherein in paragraph 126 it has been provided that inefficiency in
administration referred to
Article 335
cannot be construed on the basis of a
stereotypical assumption that roster point promotees drawn from the Scheduled
Castes and Scheduled Tribes communities are not efficient or that efficiency is
reduced by appointing them and secondly, the provisions in paragraph 116 of

the said judgment
wherein by referring to the Constituent Assembly debates in
respect of the position expressed by Mohammad Ismail Khan no citizen shall be
discriminated on account of religion or race meaning thereby that an
interpretation is sought to be given that, if across the board the reserved
Page No.# 33/36

category candidates are construed to be inefficient or contributing to the
inefficiency in the administration without specific factual determination, it would
be a discrimination on account of race which would be impermissible under

Article 15
of the Constitution of India.

42. As a determination of the quantifiable data on the inefficiency in
administration across the board in respect of reserved category candidates
would amount to a discrimination on account of race which is prohibited under

Article 15
of the Constitution of India, we also have to hold that the requirement
of obtaining quantifiable data on effect of inefficiency in administration because
of the reservation in promotion meted to the reserved category candidates
would also be a violation of
Article 15
of the Constitution of India and hence,
impermissible.

43. As the three contentions raised by Mr. MK Choudhury, learned Senior
Counsel for the petitioner in WA No. 239/2022 are answered as indicated above,
meaning thereby that as per the judgment of the Hon'ble Supreme Court
rendered in paragraph 36 in the
Jarnail Singh-I
(supra) there is no requirement
of obtaining quantifiable data as regards backwardness and as per the judgment
rendered by the Hon'ble Supreme Court in paragraphs 116 and 126 of
B.K.
Pavitra-II
(supra) quantifiable data on inefficiency in administration across the
board in respect of the reserved category candidates cannot be obtained and
further as the quantifiable data in respect of adequacy or inadequacy of the
representation of the reserved category candidates can also be done at the level
of the DPC in respect of the cadre for which the promotion process had been
initiated, we are of the view that the prohibition imposed by paragraph 47 in
judgment dated 23.12.2015 in Equality Forum-I (supra) would have to be
understood in the manner indicated.
In other words as there would not be any
Page No.# 34/36

requirement of obtaining quantifiable data on backwardness and inefficiency in
administration and obtaining the data regarding adequacy or inadequacy of the
representation can be done at the level of the DPC, the prohibition imposed by
paragraph 47 in Equality Forum-I (supra) would now no longer hold good
subject to the condition that the DPC before embarking upon each and every
promotion process undertakes an exercise to determine the adequacy or
inadequacy of representation of the reserved category candidates in that
particular given cadre where promotion is sought to be made.

44. Now, as regards the interpretation of Clause (iv) of the Office
Memorandum dated 03.08.2016 we again quote the said provisions which is as
below:

iv) If an occasion arises during the promotion process, in which stipulated
percentage in respect of reserved category is met, but in the gradation list/ seniority list
there are candidates of reserved category who on merit is entitled to the promotion,
his / her case shall be considered for promotion on merit if such candidate has not
gained the seniority by way of any accelerated promotion earlier.

45. A reading of the Clause (iv) makes it discernable that if an occasion arises
during the promotion process in which stipulated percentage in respect of
reserved category is met but in the gradation list/seniority list there are
candidates of reserved category candidates who on merit are also entitled to a
promotion, his/her cases are to be considered for promotion on merit only if
such candidate has not given seniority by way of any accelerated promotion. It
would mean that if a reserved category candidate is seeking for a promotion
against any post in the promoted cadre which is earmarked for a reserved
category candidate, he would be entitled to the benefits of consequential
seniority as provided in the Office Memorandum dated 12.03.2002 but on the
other hand if the posts earmarked for the reserved category candidates are
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already exhausted by being occupied by the reserved category candidates but in
the gradation lists there remains some further reserved category candidates,
they can compete for promotion against the unreserved posts but in such event
they would not be entitled to the benefits under the consequential seniority and
on the other hand if on the basis of their seniority otherwise i.e. without taking
note of the consequential seniority they are within the zone of consideration,
such candidates can be considered for promotion.

46. Upon the issues being raised in the present appeals having been decided
in the manner indicated above, it is further provided that the decisions rendered
in the present judgment in WA No. 46/2023, WA No. 162/2023 and WA No.
239/2022 would prevail over all such provisions of the learned Single Judge in
the judgment dated 06.06.2022 in WP(C) No. 5005/2016 and 5026/2016 but in
respect of any other provisions which may not be contrary or inconsistent with
the provisions of this judgment the same may prevail, but with a further
clarification that if any such provisions of the judgment of the learned Single
Judge is in conflict or contradictory to any of the provisions in the present
judgment, such provisions and the judgment of the learned Single Judge stands
modified accordingly.

47. It is stated that in the meantime by the Office Memorandum dated
18.01.2023 the provisions of consequential seniority has been withdrawn and
the catch up principle has been reintroduced. We are not observing anything on
merit on the said Office Memorandum and as we have been told that the said
Office Memorandum is under challenge in separate writ petitions which shall be
determined on its own merit, the consequences of such Office Memorandum
shall also be subject to what may be provided in such proceedings.

Writ appeals stand disposed of in the above terms.

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JUDGE JUDGE

Comparing Assistant