Gauhati High Court

Radheswar Langthasa vs The State Of Assam Rep By The Chief ... on 4 June, 2024

Author:
Soumitra Saikia

Bench:
Soumitra Saikia

GAHC010015392023

IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
PRINCIPAL SEAT
W.P(C) NO. 363/2023
Radheswar Langthasa,
S/O- SRI B LANGTHASA, PRESENT WORKING IN THE POST OF
SUPERINTENDING ENGINEER, WATER RESOURCES DEPTT, SILCHAR, R/O-
MASCOT RESIDENCY,JATIA,KAHILIPARA ROAD, N K HOTEL, P RABHA
PATH, DISPUR, GHY- 781006

VERSUS

1. THE STATE OF ASSAM REP BY THE CHIEF SECRETARY TO THE GOVT
OF ASSAM, DISPUR, GHY- 781006, ASSAM

2:THE PRINCIPAL SECRETARY TO THE GOVT OF ASSAM
PERSONNEL (B) DEPTT, SECRETARIAT, DISPUR, GHY- 781006, ASSAM

3:THE ADDITIONAL CHIEF SECRETARY TO THE GOVT OF ASSAM
DEPTT OF WELFARE OF PLAIN TRIBES AND BACKWARD CLASSES
DISPUR, GHY- 781006, ASSAM

4:THE SECRETARY TO THE GOVT OF ASSAM
PERSONNEL (B) DEPTT, SECRETARIAT DISPUR, GHY- 781006

5:THE ADDITIONAL CHIEF SECRETARY TO THE GOVT OF ASSAM
WATER RESOURCES DEPTT, DISPUR, GUWAHATI- 781006, ASSAM

6:SECRETARY TO THE GOVT OF ASSAM
WATER RESOURCES DEPTT, DISPUR, GUWAHATI- 781006, ASSAM

W.P(C) No. 363/2023 & Ors Page 1 of 103
W.P(C) NO. 665/2023

RADHESWAR LANGTHASA
SON OF SRI B LANGTHASA
PRESENTLY WORKING IN THE POST OF - SUPERINTENDING ENGINEER
WATER RESOURCES DEPARTMENT, SILCHAR , RESIDENT OF - MASCOT
RESIDENCY, JATIA, KAHILIPARA ROAD, N K HOTEL, P RABHA PATH
DISPUR, GUWAHATI-781006

VERSUS

1. THE STATE OF ASSAM
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF
ASSAM, DISPUR, GUWAHATI-781006 (ASSAM)

2:THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF ASSAM
PERSONNEL (B) DEPARTMENT, SECRETARIAT, DISPUR, GUWAHATI -
781006 (ASSAM)
3:THE ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT OF ASSAM,
DEPARTMENT FOR THE WELFARE OF PLAIN TRIBES AND BACKWARD
CLASSES (WPT AND BC), DISPUR, GUWAHATI - 781006 (ASSAM).
4:THE SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPARTMENT SECRETARIAT, DISPUR, GUWAHATI-
5:THE ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT OF ASSAM,
WATER RESOURCES DEPARTMENT, DISPUR, GUWAHATI-781006 (ASSAM)
6:SECRETARY TO THE GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT, DISPUR
GUWAHATI-781006 (ASSAM)
7:THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT, GOVT. OF ASSAM, CHANDMARI
GUWHATI -781003
8:THE CHAIRMAN AND MEMBERS OF THE DPC COMMITTEE MEETING
HELD ON 06.2.2023 HELD FOR PROMOTING INCUMBENTS FROM THE
RANK OF SUPERINTENDING ENGINEER TO THE RANK OF ADDITIONAL
CHIEF ENGINEER
9:THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT, CHANDMARI, GUWAHATI-781003
10:PRABIN BHUYAN THROUGH THE O/O THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT, CHANDMARI, GUWAHATI-781003
11:SMTI MANDIRA SARMAH THROUGH THE O/O THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT, CHANDMARI, GUWAHATI-781003
12:BHASKAR JYOTI SARMAH THROUGH THE O/O THE CHIEF ENGINEER,
WATER RESOURCES DEPARTMENT, CHANDMARI. GUWAHATI-781003
13:RAJIB KUMAR GOSWAMI THROUGH THE O/O THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT, CHANDMARI, GUWAHATI-781003
14:NAGENDRA KARMAKAR THROUGH THE O/O THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT, CHANDMARI, GUWAHATI-781003

W.P(C) No. 363/2023 & Ors Page 2 of 103
15:NAYAN KUMAR SAIKIA THROUGH THE O/O THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT, CHANDMARI, GUWAHATI-781003
16:SAMIRAN DEKA THROUGH THE O/O THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT, CHANDMARI, GUWAHATI-781003
17:SUBRATA NATH THROUGH THE O/O THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT, CHANDMARI, GUWAHATI-781003
18:ABDUL MUNIM MAZUMDAR THROUGH THE O/O THE CHIEF ENGINEER,
WATER RESOURCES DEPARTMENT, CHANDMARI
GUWAHATI-781003
19:DEBA PRASAD BORA, O/O THE CHIEF ENGINEER, WATER RESOURCES
DEPARTMENT, CHANDMARI, GUWAHATI-781003
20:JAGADIPAN DEY, O/O THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT, CHANDMARI, GUWAHATI-781003
21:BIPUL BHATTACHARYYA, O/O THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT, CHANDMARI
GUWAHATI-781003
22:BHASKAR JYOTI DAS, O/O THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT, CHANDMARI, GUWAHATI-781003
23:PULAK CHOUDHURY, O/O THE CHIEF ENGINEER
WATER RESOURCES DEPARTMENT, CHANDMARI, GUWAHATI-781003
24:PRATUL PATOWARY, O/O THE CHIEF ENGINEER, WATER RESOURCES
DEPARTMENT, CHANDMARI, GUWAHATI-781003

W.P(C) NO. 1819/2023

SUBRATA KUMAR DAS
S/O SRI SAMIRAN CHANDRA DAS
ASSISTANT EXECUTIVE ENGINEER
DHEMAJI W.R. SUB-DIVISION, DHEMAJI
ASSAM, R/O SUBACHANI ROAD, NEAR BANK COLONY
P.O. AND DIST-TINSUKIA, PIN-786125, ASSAM

VERSUS

1. THE STATE OF ASSAM
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF
ASSAM, DISPUR, GUWAHATI-781006 (ASSAM)

2:THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF ASSAM
PERSONNEL (B) DEPARTMENT
SECRETARIAT
DISPUR
GUWAHATI-781006 (ASSAM)
3:THE ADDL CHIEF SECY TO THE GOVT OF ASSAM
DEPTT OF WELFARE OF PLAIN TRIBES AND BACKWARD CLASSES
(WPT AND BC)
DISPUR

W.P(C) No. 363/2023 & Ors Page 3 of 103
GUWAHATI-781006 (ASSAM)
4:THE SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPARTMENT
SECRETARIAT
DISPUR
GUWAHATI-781006
5:THE SECRETARY TO THE GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
DISPUR
GUWAHATI-781006 (ASSAM)
6:THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVERNMENT
OF ASSAM
WATER RESOURCES DEPARTMENT
DISPUR
GUWAHATI-781006 (ASSAM)
7:THE DEPUTY SECRETARY TO THE GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
DISPUR
GUWAHATI-781006 (ASSAM)
8:NIKUNJA KUMAR SARMA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
9:RAJESH BARUAH (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
10:PRANJIT KUMAR NATH (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
11:PRATIM GOGOI (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
12:PRANJIT BORAH (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
13:DAYANANDA BAISHNAB (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
14:KHUMAN KALITA (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
15:DINESH BURAGOHAIN (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM

W.P(C) No. 363/2023 & Ors Page 4 of 103
WATER RESOURCES DEPARTMENT
16:PRANAB JYOTI CHETIA (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
17:TILOK CH GOGOI (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
18:MD. IFTIKAR HUSSAIN
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
19:MIRJUMLA AHMED
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
20:SHAMIM AKHTAR LASKAR
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
21:NAYANJYOTI GOSWAMI
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
22:SHAHEEDUZ ZAMAN
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
23:SANTANU KUMAR SARMA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
24:KAMAL SARMA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
25:RAMESH CHANDRA KALITA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
26:SYED SAJID AHMED
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
27:CHANDAN KUMAR NATH (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
28:HIMANGSHU DEKA (OBC)

W.P(C) No. 363/2023 & Ors Page 5 of 103
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
29:JIBAN BEZ BARUAH
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
30:SURAJIT BHARALI (MOBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
31:DIGANTA SAIKA (MOBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
32:RAHMAT ALI AHMED
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
33:KAMALA DUTTA (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
34:MUKUL BORA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
35:SANJOY BURAGOHAIN (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
36:MONOJ BHATTACHARYAA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
37:BHARAT BHUSAN SARMA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
38:BABUL RAJBONGSHI (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
39:JAYANTA KUMAR BORPUJARI
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
40:BAHARUL ISLAM LASKAR
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM

W.P(C) No. 363/2023 & Ors Page 6 of 103
WATER RESOURCES DEPARTMENT
41:PURNENDU CHANDA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
42:MD. ARPHANUR RAHMAN
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
43:KHANINDRA KALITA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
44:JAHUR UDDIN AHMED (MOBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
45:BAHARUL ISLAM CHOUDHURY
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
46:PARBIN KUMAR SAIKIA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
47:HARISH CH. BORUAH (MOBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
48:ABANEE GOGOI (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
49:GANESH KALITA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
50:ABHOY KUMAR DEKA (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
51:UTPAL HAZARIKA (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
52:SANTANU KUMAR BORAH
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
53:MD. ASAD HUSSAIN

W.P(C) No. 363/2023 & Ors Page 7 of 103
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT
54:MD. NURUL ISLAM (OBC)
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT

W.P(C) NO. 828/2023

DIPA DAS
D/O- SRI PRABHAT CH. DAS
R/O- AMBIKAGIRI NAGAR
1ST BYE LANE
HOUSE NO.1
GUWAHATI- 781024
ASSAM

VERSUS

THE STATE OF ASSAM AND 22 ORS.
REP. BY THE CHIEF SECRETARY TOTHE GOVT. OF ASSAM
DISPUR
GHY-06 (ASSAM)

2:THE PRINCIPAL SECRETARY
TO THE GOVT. OF ASSAM PERSONNEL (B) DEPTT.
SECRETARIAT
DISPUR
GHY-06 (ASSAM)
3:TH ADDL. CHIEF SECRETARY
TO THE GOVT. OF ASSAM DEPTT. FOR THE WELFARE OF PLAIN TRIBES
AND BACKWARD CLASSES (WPT AND BC)
DISPUR
GHY-06 (ASSAM)
4:THE SECRETARY
GOVT. OF ASSAM PERSONNEL (A) DEPTT.
SECRETARIAT
DISPUR
GHY-06
5:PRANAB KUMAR SHARMA
PRESENTLY POSTED AS ADDL. SECRETARY
WOMEN AND CHILD DEVELOPMENT DEPTT.
SECRETARIAT
DISPUR- 781006
ASSAM
6:MONDIPA SHARMA BORKATAKY
PRESENTLY POSTED AS ADDL. SECRETARY

W.P(C) No. 363/2023 & Ors Page 8 of 103
CULTURAL AFFAIRS DEPTT. AND MD
ASSAM STATE FILM FINANCE AND DEVELOPMENT CORPORATION
SECRETARIAT
DISPUR- 781006
ASSAM
7:GITIMONI PHUKAN
PRESENTLY POSTED AS DY. COMMISSIONER
DC COURT COMPLEX
NALBARI MAIN ROAD
NALBARI- 781335
ASSAM
8:FARIDA SAMSUL
PRESENTLY POSTED AS DIRECTOR
CHAR AREAS DEV AND DIRECTOR
MINORITIES DEVELOPMENT BOARD
SECRETARIAT
DISPUR- 781006
ASSAM
9:JURI GOGOI
PRESENTLY POSTED AS ADDL. SECRETARY
PENSION AND PUBLIC GRIEVANCE DEPTT.
SECRETARIAT
DISPUR- 781006
ASSAM
10:TEJ PRASAD BHUSAL
PRESENTLY POSTED AS ADDL. SECRETARY
AGRICULTURE
SECRETARIAT
DISPUR- 781006
ASSAM
11:MANAS NATH
PRESENTLY POSTED AS ADDL. SECRETARY
MEDICAL EDUCATION AND RESEARCH
SECRETARIAT
DISPUR- 781006
ASSAM
12:ASHIM KUMAR BHATTACHARYA
PRESENTLY POSTED AS ADDL. SECRETARY
HOME AND POLITICAL DEPTT.
SECRETARIAT
DISPUR- 781006
ASSAM
13:DEBESWAR BORA
PRESENTLY POSTED AS COMMISSIONER FOR PERSON WITH
DISABILITIES
SECRETARIAT
DISPUR- 781006
ASSAM
14:PALLABI PHUKAN
PRESENTLY POSTED AS DY. COMMISSIONER

W.P(C) No. 363/2023 & Ors Page 9 of 103
OFFICE OF THE DY. COMMISSIONER RAM NAGAR
DHEMAJI- 787057
ASSAM
15:MAYURI CHETIA
PRESENTLY POSTED AS ADDL. SECRETARY
FINANCE DEPTT.
SECRETARIAT
DISPUR- 781006
ASSAM
16:PALASH RANJAN GHARPHALIA
PRESENTLY POSTED AS ADDL. SECRETARY
PERSONNEL
AR AND TRAINING DEPTT.
SECRETARIAT
DISPUR- 781006
ASSAM
17:SANTANA CHETIA
PRESENTLY POSTED AS ADDL. SECRETARY
PARLIAMENTARY AND SECONDARY EDUCATION DEPTT.
SECRETARIAT
DISPUR- 781006
ASSAM
18:DIPSHIKHA DEY
PRESENTLY POSTED AS ADDL. SECRETARY
AGRICULTURE DEPTT.
SECRETARIAT
DISPUR- 781006
ASSAM
19:PAUL BARUA
PRESENTLY POSTED AS DY. COMMISSIONER
D C OFFICE
COURT ROAD
SONARI
ASSAM- 785690
20:PRAJNYA SAHARIA
PRESENTLY POSTED AS ADDL. SECRETARY
ELEMENTARY EDUCATION DEPTT.
SECRETARIAT
DISPUR- 781006
ASSAM
21:MANABENDRA MEDHI
PRESENTLY POSTED AS ADDL. SECRETARY
SOCIAL JUSTICE AND EMPOWERMENT DEPTT.
SECRETARIAT
DISPUR- 781006
ASSAM
22:MADHU SUDAN NATH
PRESENTLY POSTED AS ADDL. SECRETARY
HIGHER EDUCATION DEPTT.
SECRETARIAT

W.P(C) No. 363/2023 & Ors Page 10 of 103
DISPUR- 781006
ASSAM
23:BISHNU KAMAL BORAH
PRESENTLY POSTED AS ADDL. SECRETARY AND DIRECTOR
INFORMATION AND PUBLIC RELATIONS DEPTT.
SECRETARIAT
DISPUR- 781006
ASSAM

W.P(C) NO. 1165/2023

PRANAB KUMAR RABHA
S/O- LATE PABITRA KUMAR RABHA
EXECUTIVE ENGINEER
PWD
DISPUR TERRITORIAL ROAD DIVISION
GUWAHATI-781021
R/O- NABURUN PATH
JATIA
DISPUR
PIN- 781006
ASSAM

VERSUS

THE STATE OF ASSAM AND 6 ORS
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI-781006
ASSAM

2:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPARTMENT
SECRETARIAT
DISPUR
GUWAHATI-781006
ASSAM
3:THE ADDITIONAL CHIEF SECRETARY TO THE GOVT. OF ASSAM
DEPARTMENT FOR THE WELFARE OF PLAIN TRIBES AND BACKWARD
CLASSES (WPT AND BC)
DISPUR
GUWAHATI-781006
ASSAM
4:THE SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPARTMENT
SECRETARIAT
DISPUR
GUWAHATI-781006.

W.P(C) No. 363/2023 & Ors Page 11 of 103
5:THE SECRETARY TO THE GOVT. OF ASSAM
PUBLIC ROADS DEPARTMENT
DISPUR
GUWAHATI-781006
ASSAM
6:THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVT. OF
ASSAM
PUBLIC WORKS DEPARTMENT
DISPUR
GUWAHATI-781006
ASSAM
7:THE DEPUTY SECRETARY TO THE GOVT. OF ASSAM
PUBLIC WORKS ROADS DEPARTMENT
CONFIDENTIAL CELL
DISPUR
GUWAHATI-781006
ASSAM

W.P(C) NO. 3094/2021

BIKASH CH PANGGING
S/O NOMAL CH PANGGING
EXECUTIVE ENGINEER
PWD
DIBRUGARH LAHOWAL MORAN AND TINGKHONG TERRITORIAL ROAD
DIVISION
DIBRUGARH
RESIDENT OF CHOWKIDINGHEE
DIBRUGARH
ASSAM

VERSUS

THE STATE OF ASSAM AND 21 ORS
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI 781006
ASSAM

2:THE COMMISSIONER AND SPECIAL SECRETRAY TO THE GOVT. OF
ASSAM
PWD(R)M DISPUR
GUWAHATI 06
3:THE SECRETARY
PWD
GOVT. OF ASSAM
DISPUR GUWAHATI 06

W.P(C) No. 363/2023 & Ors Page 12 of 103
4:THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVT. OF
ASSAM

PUBLIC WORKS (BUILDING AND NH) DEPT. DISPUR
GUWAHATI 06
5:THE DEPUTY SECRETARY TO THE GOVT. OF ASSAM

PUBLIC WORKS ROAD DEPARTMENT
DISPUR
GUWAHATI 781006
6:THE ADDITIONAL CHIEF SECRETARY TO THE GOVT. OF ASSAM

DEPARTMENT OF WELFARE OF PLAIN TRIBES AND BACKWARD CLASSES
(WPT AND BC)
DISPUR
GUWAHATI 781006
7:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPARTMENT
DISPUR
GUWAHATI 781006
8:THE CHAIRPERSON AND MEMBERS
OF THE DPC MEETING HELD ON 29.05.2021 FOR PROMOTION TO THE
RANK OF SUPT.ENGINEER
UNDER THE PWD
GOVT. OF ASSAM TO BE SERVED UPON THE SECRETARY TO THE GOVT.
OF ASSAM
PWD (ROADS
BUILDING AND NH)
DISPUR
GUWAHATI 781006
9:SRI JEWEL TIMUNG (STH)
DIPHU CIRCLE I
PWDR DIPHU
10:SRI AJIT SINAR (ST(H)
HAMREN CIRCLE
HAMREN
11:SRI DILIP KUMAR SARMA - I
DIBRUGARH ROAD CIRLCE
PWRD
12:SRI NAGENDRA KALITA
SILCHAR BUILDING CIRCLE
PWD (B AND NH)
13:SRI DHANESH CH. DAS
TINSUKIA ROAD CIRCLE
PWRD
TINSUKIA
14:SRI INDRAJIT GOGOI
DIBRUGARH NH CIRCLE
PWD (B AND NH)
DIBRUGARH

W.P(C) No. 363/2023 & Ors Page 13 of 103
15:SRI PRANAB TAHBILDER
TEZPUR NH CIRCLE
PWD (B AND NH) TEZPUR
16:SRI RATUL KR. BEZ
GUWAHATI NEC CIRCLE
PWDR GUWAHATI
17:SRI PRAHLAD CH KAKATI
ARIASP CIRCLE
PWRD
GUWAHATI
18:SRI BIPUL DUTTA
JORHAT ROAD CIRCLE
PWRD
19:SRI ATUL CH BAISHYA
BARPETA ROAD CIRLCE
PWRD BARPETA

20:SRI SANTOSH TAMULY
HAFLONG NEC CIRCLE
HAFLONG
21:SRI BHUDEB SARMA
O/O THE CHIEF ENGINEER (EAP) PWRD
22:SRI ARUN KR. PHUKAN
O/O THE CHIEF ENGINEER
BUILDING
PWD (B AND NH) RES. 9 TO 22 ARE PRIVATE RES. UNDER THE PUBLIC
WORKS ROAD DEPARTMENT AND MAY BE SERVED THROUGH
RESPONDENT NO. 5

W.P(C) NO. 677/2023

BIDUR BORGOYARI
S/O- LT. MANIK CHAND BORGOARI

EXECUTIVE ENGINEER
PWD NAGAON

BARHAMPUR AND RUPOHIHUT DIVISION

NAGAON

R/O- BIPUNIDHI NIWAS
BORBARI

ALOKPUR PATH
VIP ROAD

GUWAHATI- 781036
(ASSAM).

W.P(C) No. 363/2023 & Ors Page 14 of 103

VERSUS

THE STATE OF ASSAM AND 6 ORS
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM

DISPUR
GUWAHATI- 781006 (ASSAM).

2:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPARTMENT
SECRETARIAT
DISPUR

GUWAHATI- 781006 (ASSAM).

3:THE ADDL. CHIEF SECRETARY TO THE GOVT. OF ASSAM
DEPARTMENT FOR THE WELFARE OF PLAIN TRIBES AND B.C
(WPT AND BC)
DISPUR

GUWAHATI- 781006 (ASSAM).

4:THE SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPARTMENT
SECRETARIAT
DISPUR

GUWAHATI- 781006
(ASSAM).

5:THE SECRETARY TO THE GOVT. OF ASSAM
PUBLIC WORKS ROADS DEPARTMENT
DISPUR
GUWAHATI- 781006 (ASSAM).

6:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
PUBLIC WORKS ROADS DEPARTMENT
DISPUR
GUWAHATI- 781006 (ASSAM).

7:THE DY. SECRETARY TO THE GOVT. OF ASSAM
PUBLIC WORKS ROADS DEPARTMENT
CONFIDENTIAL CELL
DISPUR

GUWAHATI- 781006 (ASSAM).

W.P(C) NO. 3096/2021

BIDUR BORGAYAR
S/O LATE MANIK CH. BORGAYARI

W.P(C) No. 363/2023 & Ors Page 15 of 103

EXECUTIVE ENGINEER
PWD
HOJAI DISTRICT TERRITORIAL ROAD DIVISION
HOJAI
RESIDENT OF ALOKPUR PATH
BORBARI
VIP ROAD
DISPUR
781036. ASSAM

VERSUS

THE STATE OF ASSAM AND 22 ORS
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI 781006
ASSAM

2:THE COMMISSIONER AND SPECIAL SECRETRAY TO THE GOVT. OF
ASSAM
PWD(R)M DISPUR
GUWAHATI 06
3:THE SECRETARY
PWD
GOVT. OF ASSAM
DISPUR GUWAHATI 06
4:THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVT. OF
ASSAM

PUBLIC WORKS (BUILDING AND NH) DEPT. DISPUR
GUWAHATI 06
5:THE DEPUTY SECRETARY TO THE GOVT. OF ASSAM

PUBLIC WORKS ROAD DEPARTMENT
DISPUR
GUWAHATI 781006
6:THE ADDITIONAL CHIEF SECRETARY TO THE GOVT. OF ASSAM

DEPARTMENT OF WELFARE OF PLAIN TRIBES AND BACKWARD CLASSES
(WPT AND BC)
DISPUR
GUWAHATI 781006
7:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPARTMENT
DISPUR
GUWAHATI 781006
8:THE CHAIRPERSON AND MEMBERS
OF THE DPC MEETING HELD ON 29.05.2021 FOR PROMOTION TO THE
RANK OF SUPT.ENGINEER

W.P(C) No. 363/2023 & Ors Page 16 of 103

UNDER THE PWD
GOVT. OF ASSAM TO BE SERVED UPON THE SECRETARY TO THE GOVT.
OF ASSAM
PWD (ROADS
BUILDING AND NH)
DISPUR
GUWAHATI 781006
9:SRI JEWEL TIMUNG (STH)
DIPHU CIRCLE I
PWDR DIPHU
10:SRI AJIT SINAR (ST(H)
HAMREN CIRCLE
HAMREN
11:SRI DILIP KUMAR SARMA - I
DIBRUGARH ROAD CIRLCE
PWRD
12:SRI NAGENDRA KALITA
SILCHAR BUILDING CIRCLE
PWD (B AND NH)
13:SRI DHANESH CH. DAS
TINSUKIA ROAD CIRCLE
PWRD
TINSUKIA
14:SRI INDRAJIT GOGOI
DIBRUGARH NH CIRCLE
PWD (B AND NH)
DIBRUGARH
15:SRI PRANAB TAHBILDER
TEZPUR NH CIRCLE
PWD (B AND NH) TEZPUR
16:SRI RATUL KR. BEZ
GUWAHATI NEC CIRCLE
PWDR GUWAHATI
17:SRI PRAHLAD CH KAKATI
ARIASP CIRCLE
PWRD
GUWAHATI
18:SRI BIPUL DUTTA
JORHAT ROAD CIRCLE
PWRD
19:SRI ATUL CH BAISHYA
BARPETA ROAD CIRLCE
PWRD BARPETA

20:SRI SANTOSH TAMULY
HAFLONG NEC CIRCLE
HAFLONG
21:SRI BHUDEB SARMA
O/O THE CHIEF ENGINEER (EAP) PWRD
22:SRI ARUN KR. PHUKAN

W.P(C) No. 363/2023 & Ors Page 17 of 103

O/O THE CHIEF ENGINEER
BUILDING
PWD (B AND NH) RES. 9 TO 22 ARE PRIVATE RES. UNDER THE PUBLIC
WORKS ROAD DEPARTMENT AND MAY BE SERVED THROUGH

RESPONDENT NO. 5

W.P(C) NO. 3482/2020

TABURAM PEGU AND 2 ORS.

S/O LT. KHAGESWAR PEGU
ADDITIONAL SUPERINTENDENT OF POLICE
I/C 6 ABNN KATHAL
SILCHAR
DIST. CACHAR
PIN-788005
ASSAM

2: AMITABH BASUMATARAY
APS
S/O LT. AMRITLAL BASUMATARY
R/O GOSSAIGAON

WARD NO. 4

DIST. KOKRAJHAR
PIN-783360
BTAD
ASSAM

3: PANKAJ KUMAR KAKATI
APS
S/O SATYA NATH KAKATI
R/O TOWN RAHA

WARD NO. 2

DIST. NAGAON
ASSAM-782103
VERSUS

THE STATE OF ASSAM AND 8 ORS.

REP .BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI-781006

2:THE ADDITIONAL CHIEF SECRETARY
TO THE GOVT. OF ASSAM
HOME AND POLITICAL DEPTT. GOVT. OF ASSAM
DISPUR
GUWAHATI-781006
ASSAM
3:THE PRINCIPAL SECRETARY

W.P(C) No. 363/2023 & Ors Page 18 of 103

TO THE GOVT. OF ASSAM
HOME AND POLITICAL DEPTT. DISPUR
GUWAHATI-781006
ASSAM
4:THE SECRETARY
TO THE GOVT. OF ASSAM
HOME AND POLITICAL DEPTT. DISPUR
GUWAHATI-781006
ASSAM
5:THE DIRECTOR GENERAL OF POLICE
ASSAM
ASSAM POLICE HEAD QUARTERS
ULUBARI
GUWAHATI-781001
ASSAM
6:THE ADDITIONAL DIRECTOR GENERAL OF POLICE ADMINISTRATION
ASSAM POLICE HEAD QUARTERS
ULUBARI
GUWAHATI-781001
ASSAM
7:THE ADDITIONAL CHIEF SECRETARY
TO THE GOVT. OF ASSAM
DEPTT. FOR WELFARE OF PLAIN TRIBES AND BACKWARD CLASSES (WPT
AND BC)
DISPUR
GUWAHATI-781006
ASSAM
8:THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPTT. DISPUR
GUWAHATI-781006
9:THE JUDICIAL REMEMBRANCER AND SECRETARY
TO THE GOVT. OF ASSAM
JUDICIAL DEPTT. JUDICIAL BRANCH
DISPUR
GUWAHATI-781006

W.P(C) NO. 1309/2022

PRANAB KUMAR RABHA
SON OF LT. PABITRA KUMAR RABHA

EXECUTIVE ENGINEER
PWD
DISPUR TERRITORIAL ROAD DIVISION
GUWAHATI -781021.

RESIDENT OF NABARUN PATH
JATIA
DISPURPIN- 781006

W.P(C) No. 363/2023 & Ors Page 19 of 103

ASSAM.

VERSUS

THE STATE OF ASSAM AND 32 ORS.

REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF
ASSAM
DISPUR
GUWAHATI-781006 (ASSAM).

2:THE COMMISSIONER AND SPECIAL SECRETARY
TO THE GOVERNMENT OF ASSAM
PUBLIC WORK ROADS DEPARTMENT
DISPUR
GUWAHATI - 781006 (ASSAM).

3:THE SECRETARY
PUBLIC WORKS DEPARTMENT
GOVERNMENT OF ASSAM
DISPUR
GUWAHATI-781006.

4:THE COMMISSIONER AND SPECIAL SECRETARY
TO THE GOVERNMENT OF ASSAM
PUBLIC WORKS (BUILDING AND NH) DEPARTMENT
DISPUR
GUWAHATI 6.

5:THE DEPUTY SECRETARY
TO THE GOVERNMENT OF ASSAM
PUBLIC WORKS ROADS DEPARTMENT
DISPUR
GUWAHATI - 781006.

6:THE ADDITIONAL CHIEF SECRETARY
TO THE GOVERNMENT OF ASSAM
DEPARTMENT FOR THE WELFARE OF PLAIN TRIBES AND BACKWARD
CLASSES (WPT AND BC)
DISPUR
GUWAHATI-781006 (ASSAM).

7:THE COMMISSIONER AND SECRETARY
TO THE GOVERNMENT OF ASSAM
PERSONNEL (B) DEPARTMENT
DISPUR
GUWAHATI-781006.

8:THE CHAIRPERSON AND MEMBERS
OF THE DPC MEETING HELD ON 29.5.2021 FOR PROMOTION TO THE
RANK OF SUPERINTENDING ENGINEER UNDER THE PUBLIC WORKS
DEPARTMENT
GOVT. OF ASSAM
TO BE SERVED UPON THE COMMISSIONER AND SPECIAL SECRETARY TO
THE GOVERNMENT OF ASSAM
PUBLIC WORKS (ROADS

W.P(C) No. 363/2023 & Ors Page 20 of 103

BUILDING AND NH) DEPARTMENT
DISPUR
GUWAHATI 781006.

9:SAILADIP DAS
SUPERINTENDING ENGINEER (C)
PWD (BANDNH)
GUWAHATI BUILDING CIRCLE-II
CHANDMARI
GUWAHATI - 781003.

10:ARUN CH GOSWAMI
SUPERINTENDING ENGINEER (C)
PWD (BANDNH)
JORHAT BUILDING CIRCLE
JORHAT 785007.

11:JEWEL TIMUNG (STH)
SUPERINTENDING ENGINEER (C)
PWRD
DIPHU CIRCLE-I
DIPHU
KARBI-ANGLONG 782462.

12:SALEH AHMED CHOUDHURY
SUPERINTENDING ENGINEER (C)
PWD (BANDNH)
GUWAHATI BUILDING CIRCLE-I
PANBAZAR
GUWAHATI - 781001.

13:ROMIZUDDIN AHMED
SUPERINTENDING ENGINEER (C)
HAFLONG (RANDB) CIRCLE
HAFLONG
DIMA HASAO 788819.

14:PRADIP SARMA
DEPUTY SECRETARY (ESTABLISHMENT) PWD (BANDNH)
TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI - 781006.

15:MAHENDRA KUMAR SAIKIA
SUPERINTENDING ENGINEER (C)
PWRD
GOLAGHAT ROAD CIRCLE
C/O - OFFICE OF THE EXECUTIVE ENGINEER
PWD
GOLAGHAT AND KHOMTAI TERRITORIAL ROAD DIVISION
GOLAGHAT - 785621.

16:KISHOR KR. TALUKDAR
SUPERINTENDING ENGINEER (C)
PWD (BANDNH)
NALBARI NH CIRCLE
NALBARI - 781335.

17:BALWANT SINGH

W.P(C) No. 363/2023 & Ors Page 21 of 103

DEPUTY SECRETARY (MATERIALS) PWRD
TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI 781006.

18:DILIP KR. SAIKIA
SUPERINTENDING ENGINEER (C)
PWRD
IBRC
O/O THE CHIEF ENGINEER
PWRD (ROADS)
CHANDMARI
GUWAHATI 781003.

19:AJIT SINAR (STH)
SUPERINTENDING ENGINEER (C)
PWRD
HAMREN CIRCLE
HAMREN
KARBI-ANGLONG 782462.

20:KAJAL BAYAN
SUPERINTENDING ENGINEER (C)
PWRD
PLANNING
O/O THE CHIEF ENGINEER
PWRD (ROADS)
CHANDMARI
GUWAHATI 781003
21:BIJOY BHUSHAN SAIKIA
SUPERINTENDING ENGINEER (C)
PWRD
MANGOLDOI ROAD CIRCLE
MANGOLDOI 784125
22:MRIDUL TALUKDAR
SUPERINTENDING ENGINEER (C)
PWRD
MANGOLDOI ROAD CIRCLE
MANGOLDOI 784125.

23:DEBA KUMAR LAHKAR
DEPUTY SECRETARY (BUDGET) PWD (BANDNH)
TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI - 781006.

24:DILIP KUMAR SARMA- 1
SUPERINTENDING ENGINEER (C)
PWRD
DIBRUGARH ROAD CIRCLE
DIBRUGARH 786001.

25:NAGENDRA KALITA
SUPERINTENDING ENGINEER (C)
PWD (BANDNH)
SILCHAR BUILDING CIRCLE

W.P(C) No. 363/2023 & Ors Page 22 of 103

SILCHAR 788001
26:DHANESH CH. DAS
SUPERINTENDING ENGINEER (C)
PWRD
TINSUKIA ROAD CIRCLE
C/O OFFICE OF THE EXECUTIVE ENGINEER
PWRD
TINSUKIA
DOOMDOOMA AND SADIYA TERRITORIAL ROAD DIVISION
TINSUKIA - 786192.

27:INDRAJIT GOGOI
SUPERINTENDING ENGINEER (C)
PWD (BANDNH)
DIBRUGARH NH CIRCLE
DIBRUGARH 786001
28:PRANAB TAHBILDER
SUPERINTENDING ENGINEER (C)
PWD (BANDNH)
TEZPUR NH CIRCLE
TEZPUR - 784001
29:RATUL KR. BEZ
SUPERINTENDING ENGINEER (C)
PWRD (ROADS)
GUWAHATI NEC CIRCLE
PANBAZAR
GUWAHATI 781001.

30:BIPUL DUTTA
JORHAT ROAD CIRCLE
PWRD. SUPERINTENDING ENGINEER (C)
PWRD
JORHAT ROAD CIRCLE
JORHAT - 785007
31:ATUL CH. BAISHYA
SUPERINTENDING ENGINEER (C)
PWRD
BARPETA ROAD CIRCLE
C/O OFFICE OF THE BARPETA
BHAGHBAR AND CHENGA TERRITORIAL ROAD DIVISION
BARPETA - 781310
32:SANTOSH TAMULY
SUPERINTENDING ENGINEER (C)
PWRD
HAFLONG NEC CIRCLE
HAFLONG - 788819.

33:BHUDEB SARMA
SUPERINTENDING ENGINEER (C)
PWRD
GUWAHATI RIDF-II CIRCLE
O/O THE CHIEF ENGINEER
PWRD (ROADS)

W.P(C) No. 363/2023 & Ors Page 23 of 103

CHANDMARI
GUWAHATI 781003.

W.P(C) NO. 1121/2023

BIKASH C. PANGGING
S/O NOMAL CH. PANGGING EXECUTIVE ENGINEER PWD DIBRUGARH
LAHOWAL MORAN AND TINGKHONG TERRITORIAL ROAD DIVISION
DIBRUGARH R/O CHOWKIDINGHEE DIBRUGARH PIN 786003 ASSAM

VERSUS

THE STATE OF ASSAM AND 6 ORS.

REP. BY THECHIEF SECRETARY TO THE GOVT. OF ASSAM DISPUR
GUWAHATI 6 ASSAM

2:THE PRINCIPAL SECRETARY
TO THE GOVT. OF ASSAM PERSONNEL (B) DEPTT. SECRETARIAT DISPUR
GUWAHAI 6 ASSAM
3:THE ADDITIONAL CHIEF SECRETARY
TO THE GOVT. OF ASSAM DEPTT. FOR THE WELFARE OF PLAIN TRIBES
AND BACKWARD CLASSES (WPT AND BC) DISPUR GUWAHATI 781006
ASSAM
4:THE SECRETARY
TO THE GOVT. OF ASSAM PERSONNEL (B) DEPTT. SECRETARIAT DISPUR
GUWAHATI 6
5:THE SECRETARY
TO THE GOVT OF ASSAM PUBLIC WORKS ROAD DEPTT. DISPUR
GUWAHATI 6 ASSAM
6:THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
PUBLIC WORKS DEPTT. DISPUR GUWAHATI 6 ASSAM
7:THE DEPUTY SECRETARY
TO THE GOVT. OF ASSAM
PUBLIC WORKS DEPTT. DISPUR GUWAHATI 6 ASSAM

W.P(C) NO. 3095/2021

PRANAB KUMAR RABHA
S/O LATE PABITRA KUMAR RABHA
EXECUTIVE ENGINEER
PWD
DISPUR TERRITORIAL ROAD DIVISION
GUWAHATI 781021
RESIDENT OF NABARUN PATH
JATIA
DISPUR
ASSAM 781006

W.P(C) No. 363/2023 & Ors Page 24 of 103

VERSUS

THE STATE OF ASSAM AND 35 ORS
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI 781006
ASSAM

2:THE COMMISSIONER AND SPECIAL SECRETRAY TO THE GOVT. OF
ASSAM
PWD(R)M DISPUR
GUWAHATI 06
3:THE SECRETARY
PWD
GOVT. OF ASSAM
DISPUR GUWAHATI 06
4:THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVT. OF
ASSAM

PUBLIC WORKS (BUILDING AND NH) DEPT. DISPUR
GUWAHATI 06
5:THE DEPUTY SECRETARY TO THE GOVT. OF ASSAM

PUBLIC WORKS ROAD DEPARTMENT
DISPUR
GUWAHATI 781006
6:THE ADDITIONAL CHIEF SECRETARY TO THE GOVT. OF ASSAM

DEPARTMENT OF WELFARE OF PLAIN TRIBES AND BACKWARD CLASSES
(WPT AND BC)
DISPUR
GUWAHATI 781006
7:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPARTMENT
DISPUR
GUWAHATI 781006
8:THE CHAIRPERSON AND MEMBERS
OF THE DPC MEETING HELD ON 29.05.2021 FOR PROMOTION TO THE
RANK OF SUPT.ENGINEER
UNDER THE PWD
GOVT. OF ASSAM TO BE SERVED UPON THE SECRETARY TO THE GOVT.
OF ASSAM
PWD (ROADS
BUILDING AND NH)
DISPUR
GUWAHATI 781006
9:SRI SAILADIP DAS
GUWAHATI BUILDING CIRLCE II

W.P(C) No. 363/2023 & Ors Page 25 of 103

PWD (B AND NH) GUWAHATI
10:SRI ARUN CH GOSWAMI
JORHAT BUILDING CIRCLE
PWD (B AND NH) JORHAT
11:SRI JEWEL TIMUNG (ST(H)
DIPHU CIRCLE I
PWDR DIPHU
12:SRI SALEH AHMED CHOUDHURY
GUWAHATI BUILDING CIRCLE I
PWD PWD (B AND NH)
GUWAHATI
13:SRI ROMIZUDDIN AHMED
HAFLONG R AND B CIRCLE DIMA HASAO
14:SRI PRADIP SARMA
DEPUTY SECRETARY (ESTABLISHMENT)
PWD (B AND NH)
15:SRI NEKIBUR RAHMAN SAIKIA
NEC ROAD CELL
PWRD
16:SRI MAHENDRA KUMAR SAIKIA
GOLAGHAT ROAD CIRCLE
PWDR
GOLAGHAT
17:SRI KISHOR KR. TALUKDAR
NALBARI NH CIRCLE
PWD (B AND NH)
18:SRI BALWANT SINGH
DEPUTY SECRETARY MATERIALS PWRD
19:SRI DILIP KR. SAIKIA
IBRC

O/O THE CHIEF ENGINEER (ROAD) PWDR
20:SRI AJIT SINAR (ST(H)
HAMREN CIRCLE
HAMREN
21:SRI KAJAL BAYAN
O/O THE CHIEF ENGINEER (ROADS) PWRD
22:SRI BIJOY BHUSHAN SAIKIA
MANGALDAI ROAD
CIRCLE
PWRD
23:SRI MRIDUL TALUKDAR
NORMAL O/O THE CHIEF ENGINEER (BUILDING) PWD (B AND NH)
24:SRI DEBA KUMAR LAHKAR
DEPUTY SECRETARY (BUDGET) PWRD
25:SRI DILIP KUMAR SARMA - I
DIBRUGARH ROAD CIRLCE
PWRD
26:SRI NAGENDRA KALITA
SILCHAR BUILDING CIRCLE

W.P(C) No. 363/2023 & Ors Page 26 of 103

PWD (B AND NH)
27:SRI DHANESH CH. DAS

TINSUKIA ROAD CIRCLE
PWRD
TINSUKIA
28:SRI INDRAJIT GOGOI
DIBRUGARH NH CIRCLE
PWD (B AND NH)
DIBRUGARH
29:SRI PRANAB TAHBILDER
TEZPUR NH CIRCLE
PWD (B AND NH) TEZPUR
30:SRI RATUL KR. BEZ
GUWAHATI NEC CIRCLE
PWDR GUWAHATI
31:SRI PRAHLAD CH KAKATI
ARIASP CIRCLE
PWRD
GUWAHATI
32:SRI BIPUL DUTTA
JORHAT ROAD CIRCLE
PWRD
33:SRI ATUL CH BAISHYA
BARPETA ROAD CIRLCE
PWRD BARPETA

34:SRI SANTOSH TAMULY
HAFLONG NEC CIRCLE
HAFLONG
35:SRI BHUDEB SARMA
O/O THE CHIEF ENGINEER (EAP) PWRD
36:SRI ARUN KR. PHUKAN
O/O THE CHIEF ENGINEER
BUILDING
PWD (B AND NH)
RES. 9 TO 36 ARE PRIVATE RES. UNDER THE PUBLIC WORKS ROAD
DEPARTMENT AND MAY BE SERVED THROUGH RESPONDENT NO. 5

W.P(C) NO. 1804/2023

BHAGAWAN PATAR
S/O- LATE AMAL CH. PATAR
ASSISTANT EXECUTIVE ENGINEER
TEZPUR W.R. SUB-DIVISION TEZPUR
R/O- ANGEMAN ADAGIO
3C
KONAKLATA PATH
SURVEY

W.P(C) No. 363/2023 & Ors Page 27 of 103

GUWAHATI-781006
KAMRUP(M)
ASSAM

VERSUS

THE STATE OF ASSAM AND 27 ORS
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF
ASSAM
DISPUR
GUWAHATI-781006
ASSAM

2:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPARTMENT
SECRETARIAT
DISPUR
GUWAHATI-781006
ASSAM
3:THE ADDITIONAL CHIEF SECRETARY TO THE GOVT. OF ASSAM
DEPARTMENT FOR THE WELFARE OF PLAIN TRIBES AND BACKWARD
CLASSES (WPT AND BC)
DISPUR
GUWAHATI-781006
ASSAM
4:THE SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPARTMENT
SECRETARIAT
DISPUR
GUWAHATI-781006.

5:THE SECRETARY TO THE GOVT. OF ASSAM
WATER RESOURCES DEPARTMENT
DISPUR
GUWAHATI-781006
ASSAM
6:THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVT. OF
ASSAM
WATER RESOURCES DEPARTMENT
DISPUR
GUWAHATI-781006
ASSAM
7:THE DEPUTY SECRETARY TO THE GOVT. OF ASSAM
WATER RESOURCES DEPARTMENT
DISPUR
GUWAHATI-781006
ASSAM
8:JAYANTA KUMAR BORPUJARI
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM

W.P(C) No. 363/2023 & Ors Page 28 of 103

WATER RESOURCES DEPARTMENT.

9:BAHARUL ISLAM LASKAR
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.

10:PURNENDU CHANDA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.

11:MD. ARPHANUR RAHMAN
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.

12:KHANINDRA KALITA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.

13:JAHUR UDDIN AHMED
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.

14:BAHARUL ISLAM CHOUDHURY
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.

15:PRABIN KUMAR SAIKIA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.

16:HARISH CH. BARMAN
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.

17:ABANEE GOGOI
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.

18:GANESH KALITA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.

19:ABHOY KUMAR DEKA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.

20:UTPAL HAZARIKA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.

21:SHANTANU KUMAR BORAH

W.P(C) No. 363/2023 & Ors Page 29 of 103

TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.

22:MD. ASAD HUSSAIN
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.

23:MD. NURUL ISLAM
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.

24:MD. JURAN ALI AHMED
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.

25:BISWAJIT SINHA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.

26:ANJALI CHOUDHURY
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.

27:RAJEEVANANDA BORGOHAIN
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.

28:JIBAN KANTA CHANDA
TO BE SERVED THROUGH THE DEPUTY SECRETARY TO THE
GOVERNMENT OF ASSAM
WATER RESOURCES DEPARTMENT.

W.P(C) NO. 1567/2022

BIKASH CH. PANGGING
S/O NOMAL CH PANGGING
EXECUTIVE ENGINEER
PWD
DIBRUGARH LAHOWAL MORAN AND TINGKHONG TERRITORIAL ROAD
DIVISION
DIBRUGARH
R/O CHOWKIDINGHEE
DIBRUGARH
PIN-786003
ASSAM

VERSUS

W.P(C) No. 363/2023 & Ors Page 30 of 103

THE STATE OF ASSAM AND 28 ORS.

REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF
ASSAM
DISPUR
GUWAHATI-781006 (ASSAM)

2:THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVERNMENT
OF ASSAM
PUBLIC WORKS ROADS DEPARTMENT
DISPUR
GUWAHATI-781006 (ASSAM)
3:THE SECRETARY
PUBLIC WORKS DEPARTMENT
GOVERNMENT OF ASSAM
DISPUR
GUWAHATI-781006
4:THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVT OF
ASSAM
PUBLIC WORKS (BUILDING AND NH) DEPTT.
DISPUR
GUWHAATI-781006
5:THE DEPUTY SECRETARY TO THE GOVT. OF ASSAM
PUBLIC WORKS ROADS DEPTT.

DISPUR
GUWAHATI-781006
6:THE ADDITIONAL CHIEF SECRETARY TO THE GOVT. OF ASSAM
DEPARTMENT FOR THE WELFARE OF PLAIN TRIBES AND BACKWARD
CLASSES (WPT AND BC)
DISPUR
GUWAHATI-781006 (ASSAM)
7:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPTT
DISPUR
GUWHAATI-781006
8:THE CHAIRPERSON AND MEMBERS OF THE DPC MEETING
HELD ON 28.9.2021 FOR PROMOTION TO THE RANK OF
SUPERINTENDING ENGINEER UNDER THE PUBLIC WORKS DEPARTMENT
GOVT. OF ASSAM
TO BE SERVED UPON THE COMMISSIONER AND SPECIAL SECRETARY TO
THE GOVERNMENT OF ASSAM
PUBLIC WORKS (ROADS
BUILDING AND NH) DEPARTMENT
DISPUR
GUWAHATI-781006
9:SANTOSH KUMAR ROY
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
10:WAZID HUSSAIN
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE

W.P(C) No. 363/2023 & Ors Page 31 of 103

11:NIRUPAM BORTHAKUR
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
12:SAIFUL ISLAM
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
13:SANJIB KR. BHATTACHARJEE
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
14:BIKASH SINGHA
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
15:DILIP KR DAS
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
16:MISS MADHUMITA DEY
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
17:SMTI MITALI CHOUDHURY
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
18:AKLASUR RAHMAN BORBHUYAN
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
19:PRATIM BARUA
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
20:ANAND PRASAD SARMA
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
21:JOGENDRA DAS
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
22:MD. NURUL ISLAM
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
23:DWIJEN PATGIRI
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
24:RATHINDRA BIJOY CHAKRABORTY
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
25:ANUPAM KHARGHARIA
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
26:KALYAN KR SARMA
UNDER THE PUBLIC WORKS ROADS DEPARTMENT AND MAY BE SERVED
THROUGH NO. 4 ABOVE
27:JAGAMOHAN BASUMATARY
S/O LT. RUPENDRA BASUMATARY

W.P(C) No. 363/2023 & Ors Page 32 of 103

EXECUTIVE ENGINEER
SOUTH SALMARA DISTRICT TERRITORIAL ROAD DIVISION
MANKACHAR
DIST- SOUH SALMARA
ASSAM- 783131.

28:BIDUR BORGAYARI
S/O LATE MANIK CHANDRA BORGAYARI
R/O BIPUNIDHI NIWAS
ALOKPUR PATH
BORBARI
VIP ROAD
GHY- 781036.

29:HEMANTA DEWRI BHARALI
S/O LATE BISWAKANTA DEWRI BHARALI

R/O HOUSE NO. 6

NAVODAY NAGAR PATH
GHY- 781028.

W.P(C) NO. 545/2023

PRAVIR KAKATI
S/O- LATE SIBA CHANDRA KAKATI

R/O- SAGARIKA PATH

P.O- ZOO ROAD
P.S- GITANAGAR
GUWAHATI-24
DIST- KAMRUP (M)
ASSAM

VERSUS

THE STATE OF ASSAM AND ORS.

REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF
ASSAM
DISPUR
GUWAHATI-781006
ASSAM

2:THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF ASSAM
PERSONNEL (B) DEPARTMENT
SECRETARIAT DISPUR
GUWAHATI-781006
ASSAM
3:THE ADDL. CHIEF SECRETARY TO THE GOVERNMENT OF ASSAM
DEPARTMENT FOR THE WELFARE OF PLAIN TRIBES AND BACKWARD
CLASSES (WPT AND BC)

W.P(C) No. 363/2023 & Ors Page 33 of 103

DISPUR
GUWAHATI-781006
ASSAM
4:THE SELECTION BOARD
REP BY ITS CHAIRMAN THE CHIEF SECRETARY TO THE GOVERNMENT OF
ASSAM FOR DPC SELECTION AND PROMOTION TO POST OF
COMMISSIONER AND SECRETARY GOVERNMENT OF ASSAM

5:THE SECRETARY
TO THE GOVERNMENT OF ASSAM
PERSONNEL (A) DEPARTMENT
DISPUR
GUWAHATI-781006
6:KAMAL KUMAR BAISHYA
ACS
COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
EXCISE DEPARTMENT
AND SECRETARY
ASSAM HUMAN RIGHTS COMMISSION

DISPUR
GUWAHATI-6.

7:FAROUK ALAM
ACS
COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
SPORTS AND YOUTH WELFARE DEPARTMENT

DISPUR
GUWAHATI-6.

8:DHRUBAJYOTI DAS
ACS
COMMISSIONER AND SECRETARY (ACS CADRE)
TO THE GOVT. OF ASSAM
MEDICAL EDUCATION AND RESEARCH DEPARTMENT

DISPUR
GUWAHATI-6.

9:SRI RANJAN SARMA
AGED ABOUT 58 YEARS
SON OF LATE PRATUL SARMA
RESIDENT OF MATHURA NAGAR
DISPUR
GUWAHATI-781006

W.P(C) No. 363/2023 & Ors Page 34 of 103

-BEFORE-

HON'BLE MR. JUSTICE SOUMITRA SAIKIA

Advocate for the petitioners :Mr. D.K. Das, Mr. H. Betala Advocates
Advocate for the respondents : Mr. D. Mazumder, Sr. Advocate and Addl. A.G
assisted by Mr. R. Dhar, Addl. Sr. Government
Advocate
Mr. K.N. Choudhury, Sr. Counsel assisted by
Mr. N. Gautam, Advocate
Mr. P. Nayak, Standing Counsel, PWD
Mr. I Chowdhury, Sr. Advocate assisted by
Mr. S. Biswakarma, Advocate

Dates of Hearing : 19.12.2023, 09.01.2024, 11.01.2024,
23.01.2024, 01.02.2024, 20.02.2024,
27.02.2024 & 05.03.2024

Date of Judgment & Order: :04.06.2024

JUDGMENT AND ORDER (CAV)

This bunch of writ petitions revolve around the same question

of law with minor variations in individual facts. Accordingly, as

agreed to by the learned counsel for the parties, these writ

petitions were clubbed to be heard and disposed of together.

These matters were heard on 19.12.2023, 09.01.2024,

11.01.2024, 23.01.2024, 01.02.2024, 20.02.2024, 27.02.2024 &

05.03.2024and accordingly, are disposed of by this common

Judgment and Order.

2. In all these writ petitions, the Office Memorandum dated

18.01.2023 issued has been put to challenge. The writ petitioners

along with the various reserved categories namely ST(H) and

ST(P) urged that clauses (iii) & (iv) of the impugned OM dated

W.P(C) No. 363/2023 & Ors Page 35 of 103

18.01.2023 are contrary to law as the same are violative of and

runs counter to the Judgment and Order dated 06.06.2022

passed by a Co-ordinate Bench in
Bhagawan Pator Vs. State of

Assam & Ors
[W.P.(C) No. 5005/2016] as well as
Ivy Gohain

Dasgupta Vs. Bhagawan Pator & Ors. (W.A. No.
46/2023).

3. Mr. D.K. Das, learned counsel for the writ petitioners would

address this Court as a counsel for the writ petitioners that the

questions of law and the issues raised are similar in all these

bunch of writ petitions barring certain factual details. Mr. Das has

submitted that W.P.(C) No. 363/2023 would be the case on which

he would like to base his arguments upon. Accordingly, W.P(C)

No. 363/2023 is taken up as a lead case.

4. Before the detailed arguments are referred to, it is

necessary to state that the dispute between the parties arise as

the writ petitioners claim that their rights which flow out of
Article

16 (4A)
of the Constitution of India have been denied to them.

Under the said Article, the State is empowered to make any

provisions for reservations in matters of promotion to any class or

classes of posts in the services under the State in favour of the

Scheduled Castes and Scheduled Tribes, which are in the opinion

of the State, not adequately represented in any services under the

W.P(C) No. 363/2023 & Ors Page 36 of 103

State and therefore by way of the amendment,
Article 16 (4A)

was brought in to the Constitution power to deal with such

matters was conferred on the State for making adequate

provisions for reservation in promotion with consequential

seniority.

5. The State Legislature had enacted the
Assam Scheduled

Castes and Scheduled Tribes (Reservation of Vacancies in Services

and Posts) Act, 1978
(in short 'the Act of 1978') with the purpose

to provide for reservation of vacancies in services and posts for

the members of Scheduled Casts and Scheduled Tribes.
Section 5

of the Act of 1978 specifies the percentage for reservation for

members of the ST and SC community. The Judgment of the

Apex Court in
Indra Sawhany Vs. Union of India & Ors
, reported

in 1992 Supp (3) SCC 217 laid down the law the reservation is

permissible at the stage of initial recruitment and not in the stage

of promotion.

Consequent upon the Judgment of the Apex Court

in
Indra Sawhany
(Supra), the Parliament brought about the

Constitutional Amendment by incorporating
Article 16 (4A)
which

empowers the State to make any provisions for reservation in

matters of promotion in any class or classes or posts in the

services under the State in favour of Scheduled Castes and

W.P(C) No. 363/2023 & Ors Page 37 of 103

Scheduled Tribes which in the opinion of the State are not

adequately represented the services under the State.

The Apex

Court by its judgment rendered in
R.K. Sabarwal Vs. State of

Punjab
, reported in AIR 1995 SC 1371 held that the reservation is

to be determined on the basis of the number of posts in the cadre

and not on the basis of the vacancies and further those reserved

category candidates who are promoted or appointed on merit

should be adjusted against unreserved posts and not against

posts meant for the reserved category. Consequent to the said

Judgment, an amendment was brought about in the
Assam Act
of

1978. Section 5-A was inserted by which maintenance of post

based roster register was brought in to give effect to the

reservation of SC and ST communities.
Section 5-A(iii)
of the Act

of 1978 provides that the roster is to be operated as a

replacement and not as a running account. Further Section 5A(xiii)

provides that the promotions are to be on the post based roster

and the policy of replacement by filling up vacant post for eligible

persons from the respective category by special drive so that the

prescribed percentage of reservation is maintainable. Pursuant to

the Constitutional Amendment of
Article 16 (4A)
, by Office

Memorandum bearing No. ABP.59/96/163 dated 12.03.2002

brought in by the State of Assam, the principle of fixation of

W.P(C) No. 363/2023 & Ors Page 38 of 103

seniority of reserved candidates vis-à-vis General candidates in

promotional posts- in other words, the benefit of consequential

seniority of reserved category candidates over General category

candidates in the promotional posts was notified. The

Constitutional Amendment of
Article 16 (4A)
came to be assailed

in the Apex Court and by Judgment rendered in M. Nagraj & Ors.

Vs. union of India & Ors, reported in (2006) 8 SCC 212, it was

held that (i) this Amendment does not affect the right of equality

which is a basic structure of the Constitution of India; (ii) The

right of the State to provide for reservations in promotion and

consequential seniority was upheld and also held that the

consequential seniority is a concept purely of service

jurisprudence. The incorporation of consequential seniority would

not violate the mandate of equality; (iii) The Apex Court, however,

held that before providing such reservation in promotion, the

State will need to have quantifiable data to show backwardness,

inadequacy of representations of these classes in service and

balancing the maintenance of efficiency in services as mandated

under
Article 335
of the Constitution of India. The unit and

procedure the collection of the quantifiable data was left the

domain of the executive.

W.P(C) No. 363/2023 & Ors Page 39 of 103

6. Pursuant to the Judgment of M. Nagraj (Supra), the State of

Assam constituted a one-man Commission to study the need for

reservation by collecting quantifiable data and render its

recommendation. The one-man Commission submitted its report

which was accepted by the State Government. Based on the

approval, the State Government proscribed a procedure carry out

reservation and promotion by way of issuing the Office

Memorandum bearing No. TAD/BC/68/2011/Pt-I/146 dated

29.12.2014.

7. This Office Memorandum dated 29.12.2014 came to be

challenged in W.P.(C) No. 1560/2015 (
Equality Forum Vs. The

State of Assam & Ors.
). By Judgment and Order dated 23.12.2015,

the One-Man-Commission was set aside holding that the said

report would be of no legal consequence and would not enable

the State to give effect to the provisions of the Act of 1978.
It

was held that reservation in promotion would remain in a dormant

state till the till the exercise of collection of quantifiable data

relating to the three constitutional requirements as mandated in

M Nagaraj (supra) and UP Power Corporation Ltd-Vs- Rajesh

Kumar, reported in (2012) 7 SCC 1 are complied with by the State

while seeking to inform the provisions of
Article 16 (4A).

W.P(C) No. 363/2023 & Ors Page 40 of 103

8. The Government of Assam in pursuance to the Judgment

and Order dated 23.12.2015 passed in W.P(C) No. 1560/2015

(
Equality Forum Vs. The State of Assam & Ors.
) brought out the

Office Memorandum dated 03.08.2016. By the said Office

Memorandum, the Government again laid down the guidelines to

be followed for consideration of promotion in any cadre in any

establishments including those are the reserved categories.

Amongst the various conditions
laid down in
the Office

Memorandum dated 03.08.2016 under Clause (iv), it was provided

that during promotional process where the stipulated percentage

in respect of any reserved category is met, but in the gradation

list/seniority list, there are candidates of reserved category who

on merit are entitled to the promotion then his/her case would be

considered for promotion on merit if such candidate has not

gained the seniority by way of any accelerated promotion earlier.

9. It is the said clause (iv) in the Office Memorandum dated

03.08.2016 which came to be assailed in W.P.(C) No. 5005/2016

(
Bhawagan Pator Vs. State of Assam & Ors
) and Anr. vide

Judgment and Order dated 06.06.2022 to be violative of the

Section 5
of the 1978 Act and therefore is liable to be struck down.

While holding that
Article 16 (4A)
and
Article 16 (4B)
being

W.P(C) No. 363/2023 & Ors Page 41 of 103

enabling provisions, the State is at liberty to implement its policy

of giving reservations in promotion with consequential seniority

and it at liberty to provide for reservation in promotion with or

without consequential seniority. However, while

implementing/adopting/changing such policy, due process of law

needs to be followed including the dicta in M Nagran(Supra)

clarified in Jarnail Singh. The learned Single Judge held that since

the Office Memorandum dated 12.03.2002 would hold the field

until such policy is expressly repealed by the State, the State is

not within its competence and jurisdiction to deprive the benefit

of reservation in promotion with consequential seniority to

meritorious reserved category candidates without expressly

bringing any policy by superseding the benefit granted under

Office Memorandum dated 12.03.2002.

10. This Judgment and Order came to subsequently assailed in

the W.A. No. 46/2023 (
Ivy Gohain Dasgupta Vs. Bhagwan Pator &

Ors
); W.A No. 239/2022 (
Equality Forum Vs. The State of Assam

& Ors
) and W.A. No. 162/2023 (
Sanjai Kumar Mahanta Vs. The

State of Assam & Ors
). The Division Bench upon deciding this

issue in its entirety held that the decision rendered in the writ

appeal would prevail over all such provisions of the learned Single

W.P(C) No. 363/2023 & Ors Page 42 of 103

Judge in the Judgment and Order dated 06.06.2022 in W.P.(C) No.

5005/2016 but in respect of any other provision which may not be

contrary or inconsistent with the provisions of the Judgment, the

same may prevail. The Division Bench did not uphold the findings

of the learned Single Judge in so far as the interpretation of

Clause (iv) of the Office Memorandum dated 03.08.2016 is

concerned. The Division Bench further provided that the decisions

rendered in the said Judgment of Division Bench 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 rendered 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. In the said

Division Bench Judgment, it was observed by the Division Bench

that Office Memorandum dated 18.01.2023 had in the meantime

been issued whereby the consequential seniority was withdrawn

and the catch up principle has been reintroduced. The Division

W.P(C) No. 363/2023 & Ors Page 43 of 103

Bench declined to observe anything on merit as the said Office

Memorandum is under challenge before by way of separate writ

petitions.

11. It is this Office Memorandum dated 18.01.2023 which is

under challenge in the present proceedings which requires

consideration by this Court in the present writ petition.

12. In the above confluence of the litigation history, the facts

relevant in each of the writ petitions are summarized below:

Name of the Present Prayer in the writ petitions
Petitioner cadre of
posting
W.P. (C) 363/2023 Superintending Petitioner was working in the rank of Superintending
Sri Radheswar Langthasa Engineer, Water Engineer. Position in the provisional gradation list
Resources Deptt. dated 30.11.2022 (Pg.110 at ANNEXURE-H) as per
entry in the cadre of the petitioner was at Sl. No.11 in
the cadre of Superintending Engineer which was
subsequently brought down to Sl.17 as per the
impugned gradation list dated 18.1.2023 (Pg.116 at
Annexure-K) which was issued in adherence to the
impugned O.M dated 18.1.2023, bringing in the
redundant catch-up principle.

W.P. (C) 665/2023 Superintending The petitioner challenged the DPC meeting dated
Sri Radheswar Langthasa Engineer, Water 6.2.2023 for promotion of private respondent No. 10 to
Resources Deptt. 24 to the rank of Additional Chief Engineer from the
cadre of Superintending Engineer and downgraded the
petitioner through Violation of Rules while adhering to
impugned O.M dated 18.1.2023.

W.P. (C) 828/2023 Addl. Secretary to Petitioner is presently serving in the selection grade of
Smt. Dipa Das the Govt. of Assam Civil Services as Additional Secretary to the

W.P(C) No. 363/2023 & Ors Page 44 of 103

Assam. (ACS) Govt. of Assam, Cooperation Deptt..Petitioner had
been deprived of her Promotion to the post of -

Secretary to the Govt. of Assam, (ACS), Grade -

2,whereas, she was downgraded in violation of Rules
while adhering to impugned O.M dated 18.1.2023. In
the gradation list of 29.12.2022, the petitioner finds
place at Sl. No.38, whereas, she was downgraded to
Sl. No.55 vide impugned final list dated 09.1.2023
(Pg.60 at ANNEXURE-C).

W.P. (C) 545/2023 Secretary to the Petitioner is presently serving in the rank of Secretary
Sri Prabir Chandra Kakati Govt. of Assam, to the Govt. of Assam . The petitioner was placed at
(ACS). Sl. No.1 under Grade 2. The petitioner was deprived of
being considered for promotion to the post of -

Commissioner and Secretary to the Govt. of Assam,
(ACS), Grade - 1. Now, vide impugned notification
dated 30.1.2023, the petitioner has been denied
promotion and incumbents (Respondent No.6 to 9)
junior to the petitioner has been considered for
promotion in violation of Rules.

W.P. (C) 1804/2023 Assistant Executive Petitioner is serving in the rank of Assistant Executive
Sri Bhagwan Pator Engineer, Water Engineer. Position in the provisional gradation list
Resources, Govt. of dated 7.9.2022 in the rank of Assistant Executive
Assam. Engineer was at sl. No.38, but in the final gradation list
dated 22.2.2023, the petitioner was brought down at
Serial No.58 and the private respondent Nos 8 to 28
had superseded the petitioner.

W.P.(C) 1819/2023 Assistant Executive Petitioner is serving in the rank of Assistant Executive
Sri Subrata Kumar Das Engineer, Water Engineer. Position in the provisional gradation list
Resources, Govt. of dated 7.9.2022 in the rank of Assistant Executive
Assam. Engineer was at sl. No.4, but in the final gradation list
dated 22.2.2023, the petitioner was brought down at
Serial No.51 and the private respondent Nos 8 to 54
had superseded the petitioner.

W.P. (C) 3095/2021 Sri Superintending The petitioner had challenged clause (iv) of the O.M.
Pranab Rabha Engineer, Public dated 3.8.2016, on the basis of which the Respondent
Works Department had conducted DPC meeting dated 25.5.2021 for

W.P(C) No. 363/2023 & Ors Page 45 of 103

(Roads). promotion from the rank of Executive Engineer to
Superintending Engineer and their actions on the
ground of Violation of Rule 13 (4) of The Assam
Engineering (PWD) Service Rules, 1978 with a prayer
to restore the inter-se seniority of the petitioner above
the Private Respondent Nos. 9 to 36 who has
superseded the petitioner as per seniority list dated
5.5.2021. The Petitioner also prayed to direct the
secretary PWD, to prepare the Final Gradation list as
per Rule 13 (4) of The Assam Engineering (PWD)
Service Rules, 1978.

W.P. (C) 1309/2022 Sri Superintending The petitioner has challenged the actions on the
Pranab Rabha Engineer, Public ground of Violation of Rule 13 (4) of The Assam
Works Department Engineering (PWD) Service Rules, 1978 to restore the
(Roads). inter-se seniority of the petitioner above the Private
Respondent Nos. 9 to 33 as per seniority list dated
5.5.2021. The Petitioner also prayed to direct the
secretary PWD, to prepare the Final Gradation list as
per Rule 13 (4) o of The Assam Engineering (PWD)
Service Rules 1978.

W.P. (C) 3094/2021 Sri Executive Engineer, The petitioner had challenged clause (iv) of the O.M.
Bikash Ch Pangging Public Works dated 3.8.2016, on the basis of which the Respondent
Department had conducted DPC meeting dated 25.5.2021 for
(Roads). promotion from the rank of Executive Engineer to
Superintending Engineer and consequential notification
dated 28.5.2021 promoting the Private Respondent
Nos. 9 to 22 who has superseded the petitioner as per
seniority list dated 5.5.2021. The petitioner had also
challenged their actions on the ground of Violation of
Rule 13 (4) of The Assam Engineering (PWD) Service
Rules, 1978 with a prayer to restore the inter-se
seniority of the petitioner above The Petitioner also
prayed to direct the secretary PWD, to prepare the
Final Gradation list as per Rule 13 (4) of The Assam
Engineering (PWD) Service Rules, 1978.
W.P. (C) 1567/2022 Sri Executive Engineer, The petitioner had challenged clause (iv) of the O.M.

W.P(C) No. 363/2023 & Ors Page 46 of 103

Bikash Ch Pangging Public Works dated 3.8.2016, on the basis of which the Respondent
Department had conducted DPC meeting dated 28.2.2022 for
(Roads). promotion from the rank of Executive Engineer to
Superintending Engineer and consequential notification
dated 28.5.2021 promoting the Private Respondent
Nos. 9 to 26 who has superseded the petitioner as per
seniority list dated 5.5.2021. The petitioner had also
challenged their actions on the ground of Violation of
Rule 13 (4) of The Assam Engineering (PWD) Service
Rules, 1978 with a prayer to restore the inter-se
seniority of the petitioner above The Petitioner also
prayed to direct the secretary PWD, to prepare the
Final Gradation list as per Rule 13 (4) of The Assam
Engineering (PWD) Service Rules, 1978.
W.P. (C) 3482/2020 Sri APS, Senior Grade- The petitioner had challenged the gradation list dated
Taburam Pegu II 17.7.2019, name of petitioners appear at Sl. No. 87,
88 and 92 respectively. Inter-se seniority list of APS
Officers as per notification dated 11.12.2014, name of

petitioners appear at Sl. No. 120, 119 and 123

respectively.

W.P. (C) 1165/2023 Sri Superintending Petitioner was working in the rank of Superintending
Pranab Rabha Engineer, Public Engineer. The petitioner prays to set aside and quash
Works Department Clause (iii), (iv)(a), (v) of the O.M. dated 18.01.2023
(Roads). and prepare cadre wise seniority list in terms of Rule
13, 22 & 24 of The Assam Engineering (PWD) Service
Rules 1978 also to consider the case of petitioner in
terms of judgment passed in BhagwanPator -Vs- The
State of Assam &Ors. (W.P.(C) 5005/2016) basing
which the petitioner is entitled for consequential
seniority cadre-wise.

W.P. (C) 3096/2021 Sri Executive Engineer, The petitioner had challenged clause (iv) of the O.M.
Bidur Borgayari Public Works dated 3.8.2016, on the basis of which the Respondent
Department had conducted DPC meeting dated 25.5.2021 for
(Roads). promotion from the rank of Executive Engineer to
Superintending Engineer and consequential notification
dated 28.5.2021 promoting the Private Respondent

W.P(C) No. 363/2023 & Ors Page 47 of 103

Nos. 9 to 22 who has superseded the petitioner as per
seniority list dated 5.5.2021. The petitioner had also
challenged their actions on the ground of Violation of
Rule 13 (4) of The Assam Engineering (PWD) Service
Rules, 1978 with a prayer to restore the inter-se
seniority of the petitioner above The Petitioner also
prayed to direct the secretary PWD, to prepare the
Final Gradation list as per Rule 13 (4) of The Assam
Engineering (PWD) Service Rules, 1978.
W.P(C) No. 677/2023 Executive Engineer Petitioner was working in the rank of Executive
Bidur Borgayari (C), PWRD Engineer. The petitioner prays to set aside and quash
Clause (iii), (iv)(a), (v) of the O.M. dated 18.01.2023
and prepare cadre wise seniority list in terms of Rule
13, 22 & 24 of The Assam Engineering (PWD) Service
Rules 1978 also to consider the case of petitioner in
terms of judgment passed in BhagwanPator -Vs- The
State of Assam &Ors. (W.P.(C) 5005/2016) basing
which the petitioner is entitled for consequential
seniority cadre-wise.

W.P(C) No. 1121/2023 Executive Engineer The petitioner belongs to the Scheduled Tribe (Plains)
Bikash Ch. Pangging Category and is entitled to avail the benefits of
reservation as envisaged under
Article 16(4)(A)
of the
Constitution of India. The petitioner prays to set aside
and quash Clause (iii), (iv)(a), (v) of the O.M. dated
18.01.2023 and prepare cadre wise seniority list in
terms of Rule 13, 22 & 24 of The Assam Engineering
(PWD) Service Rules 1978 also to consider the case of
petitioner in terms of judgment passed in
BhagwanPator -Vs- The State of Assam &Ors.
(W.P.(C) 5005/2016) basing which the petitioner is
entitled for consequential seniority cadre-wise.

13. Mr. D.K. Das, learned counsel for the petitioner argues that

Office Memorandum dated 12.03.2002 which has been sought to

be superseded by the impugned Office Memorandum dated

W.P(C) No. 363/2023 & Ors Page 48 of 103

18.01.2023 cannot be permitted to be accepted inasmuch as it

will amount to overriding the provisions of the Act of 1978. The

Office Memorandum dated 12.03.2002 which was brought in by

the State, is falling from the power source from
Sections 5
and
5A

of the Act of 1978. It is submitted that the Act of 1978 was

brought in pursuant to the Judgment of the Apex Court and

therefore, the Office Memorandum dated 12.03.2002 must be

understood to have been brought by the State to satisfy the

Constitutional requirements relating to reservation in promotion

with consequential seniority.

14. The further argument of the learned counsel for the

petitioner is that notwithstanding the supersession of the Office

Memorandum dated 12.03.2002, the benefit conferred to the

reserved category candidates of consequential seniority upon

promotion is protected under
Section 5
of the Act of 1978 itself. It

is submitted that the State is bound to provide cadre wise

promotions and will adhere to seniority in the cadre and not as

per the date of their initial appointments.

15. It is further submitted that besides the learned Single Judge

vide Judgment and Order dated 06.06.2022, even the Division

Bench Judgment and Order dated 10.08.2023 rendered in W.A No.

W.P(C) No. 363/2023 & Ors Page 49 of 103

46/2023 & Ors did not upset the rights of the petitioners towards

their claims for consequential seniority in reservation on

promotion. It is unheard of that pursuant to reservation on

promotion for the reserved category candidates, consequential

seniority is denied. This the learned counsel for the petitioner

submits was a concept which had long been abundant across the

country and this primitive practice of denial of consequential

seniority upon promotion being still followed by the State needs to

be suitably interfered with and the benefit of consequential

seniority be restored to the writ petitioners.

16. It is argued that if Clause (iv) of the Office Memorandum

dated 18.01.2023 is to be upheld then the same would be in

violation of the Apex Court
Judgment of R.K. Sabarwal
(Supra)

inasmuch as per Clause (iv), if a reserved category candidate

competes on merit then the said candidate will have to be treated

as a reserved category candidate which is quite opposed to the

law
laid down by
Apex Court in
R.K. Sabarwal
(Supra). The

further argument of the learned counsel for the petitioners is that

the Office Memorandum brings in the concept of "promotions

group-wise". Referring to the Judgment of the Apex Court in

Jarnail Singh-II, it is submitted that the promotions can't be

W.P(C) No. 363/2023 & Ors Page 50 of 103

group-wise, it has to cadre wise. The entire unit will have to be

taken as a cadre to apply the catch up principle. It is submitted

that it is only the cadre-wise promotions which can follow and no

other. As such the Office Memorandum dated 18.01.2023 seeks to

take away the vested rights of the reserved category candidate

which cannot be permitted to be taken away.

17. It is also argued that where the Act of 1978 followed by the

Rules made thereunder are present enabling the policy of

reservation in promotion then the State cannot deny these

benefits by bringing in an Office Memorandum which is conflict

with the Act and the Rules. Although the provisions of
Article 16

(4-A)
and
Article 16 (4B)
are enabling provisions, once the

provisions are implemented by the State by bringing in the Act

followed by the Rules, it becomes an enforceable right and

therefore, the petitioners are within their rights to seek justice

from this Court and the respondents are to be suitably directed to

restore the vested right accrued to the petitioners by considering

their cases and by relegating them to their places of seniority as

per the benefit of reservation in promotion in consequential

seniority. In support of his submissions, the learned counsel for

the petitioner refers to and relies upon the following Judgments:

W.P(C) No. 363/2023 & Ors Page 51 of 103

"1.
R.K. Sabharwal and Ors. Vs. State of Punjab & Ors.
, reported in
(1995) 2 SCC 745;

2.
Bhogeswar Saikia Vs. State of Assam & Ors
, reported in (2010) 3
GLT 377;

3.
Paresh Chand Deka Vs. State of Assam & Ors
, reported in (2017) 4
GLT 434;

4.
Chairman & Managing Director, Central Bank of India Vs. Central
Bank of India SC/ST Employees Welfare Association
, reported in (2016)
1 SCC 355;

5. ST/SC Welfare Council Vs. State of Uttar Pradesh & Anr., reported in
(1997) 1 SCC 701;

6.
Bhagwan Pator Vs. The State of Assam and Ors
;

7. B.K. Pavitra & ors. Vs. Union of India & Ors, reported in (2019) 16
SCC 129; and

8.
Jarnail Singh & Ors. Vs. Lachhmi Narain Gupta & Ors
."

18. Per contra, Mr. D. Mazumdar, learned Addl. Advocate

General, Assam strongly disputes the contentions urges by the

learned counsel for the petitioners. It is submitted that both the

learned Single Judge in
Bhagawan Pator
(Supra) as well as the

Division Bench in
Ivy Gohain Dasgupta
(Supra) has categorically

held that the power to grant reservation in promotion and

consequential seniority is squarely lies with the State. The State

may decide to grant so or may decide not to grant such benefits.

As such, it is submitted that when the question of the power has

been decided by the learned Single Judge and to that extent the

findings have been upheld by the Division Bench, there is no

W.P(C) No. 363/2023 & Ors Page 52 of 103

quarrel that the State is within its rights to bring out such law

which may confer reservation on promotion with consequential

seniority or may take away such provisions already granted earlier.

These findings rendered in by the Co-ordinate Bench which are

upheld by the Division Bench are not in appeal and therefore,

they operate against the writ petitioners as well. It is submitted

that when the impugned Office Memorandum dated 18.01.2023

was issued, the writ petition of
Bhagawan Pator
(Supra) was

already decided. While the W.A. No. 46/2023 (Ivy Gohain

Dasgupta) was pending disposal.

Thereafter, the Division Bench

upheld the catch up rule and in the absence of any further appeal

by the petitioners, the present writ petitions are not maintainable

as the same stands squarely covered by the Judgment of the

Division Bench in
Ivy Gohain Dasgupta
(Supra) wherein it was

held that it is within the realm of the State to grant or not to

grant benefits of reservation on promotion with consequential

seniority. It is submitted that unless there is a specific provision

under the Rules granting consequential seniority, it is to be

accepted that "catch up" theory is the Rule which is to be

followed.

It is submitted that pursuant to the Judgment rendered

in
Ivy Gohain Dasgupta
(Supra), it is the Division Bench Judgment

which will prevail and not the findings of the Co-ordinate Bench

W.P(C) No. 363/2023 & Ors Page 53 of 103

more particularly in view of paragraph-47 and 48 of the said

Judgment of the Division Bench. The learned Addl.

Advocate

General further submits that the reference to provisions of Section

5A of the 1978 Act that it mandates reservation of promotion with

consequential seniority, it is submitted that such submissions of

the petitioners are totally misplaced inasmuch as Section 5A of

the 1978 Act is only meant to maintain/identify the reservation

slots in terms of the Judgment rendered by the Apex Court in
R.K.

Sabarwal
(Supra). Relying on the provisions of
Section 5A
of the

Act of 1978, no challenge can be made to the impugned

Notification by the writ petitioners. Such a challenge is completely

misplaced as
Section 5A
of the Act of 1978 has no connection

with consequential seniority. In support of his arguments Mr. D.

Mazumdar referred to and relies on the following Judgments:

1.
S. Panneer Selvam Vs. State of T.N.
, reported in (2015) 10
SCC 292;

2.
Sudhakar Baburao Nangnure Vs. Nareshwar Raghunathrao
Shende
, reported in (2020) 11 SCC 399;

3.
Ajit Singh (2) Vs. State of Punjab
, reported in (1999) 7 SCC
209; and

19. Mr. K.N. Choudhury, learned Senior Counsel representing

the private respondents also strongly disputes the contentions

raised by the writ petitioners. He refers to the Paragraphs 45, 46,

W.P(C) No. 363/2023 & Ors Page 54 of 103

47 & 48 of the Judgment of the Division Bench in
Ivy Gohain

Dasgupta
(Supra) to submit that pursuant to the decision of the

Division Bench, there is no further question required to be

decided as the Division Bench has categorically upheld the power

of the State to grant or not to grant consequential seniority for

reservation in promotion. He submits that there is no question of

any vested rights to the reserved category candidates as it is a

policy decision which can be altered by the State and the same

has been done by the Office Memorandum dated 18.01.2023.

Since both the learned Single Judge as well as the Division Bench

in
Bhagawan Pator
(Supra) and
Ivy Gohain Dasgupta
(Supra)

respectively has upheld the State's power to confer or not to

confer consequential seniority on promotion reserved category

candidates, the State by the Notification under challenge dated

18.01.2023 has decided to take away the benefits which may

have been granted earlier and therefore, as there is no further

appeal against the Judgment and Order passed by the Division

Bench in
Ivy Gohain Dasgupta
(Supra), the decision of the Court

that the State is within its power to grant or reject such benefits

on promotion with consequential seniority has attained finality.

It

is further submitted that the earlier Office Memorandum dated

03.08.2016 has been upheld by the Division Bench in
Ivy Gohain

W.P(C) No. 363/2023 & Ors Page 55 of 103

Dasgupta
(Supra). Consequently, the Office Memorandum dated

18.01.2023 is an extension thereof. It is further submitted that

the reserved categories candidates have no vested rights which

they can complain about. The learned Sr. counsel submits that no

individual facts have been pleaded by the writ petitioners and as

such it is not understood what relief the writ petitioners are

claiming without reference to their individual facts in each of the

cases.

In support of his contentions, the learned Senior Counsel

refers to the
Judgment of Ajit Singh Januja & Ors Vs. State of

Punjab and Ors
, reported in (1996) 2 SCC 715;
S. Panneer Selvam

Vs. State of T.N.
, reported in (2015) 10 SCC 292 and Mukesh

Kumar and Anr. Vs. State of Uttarakhan and Ors, reported in

(2020) 3 SCC 1.

20. The rival submissions have been heard and carefully

considered. The pleadings available on record have also been

carefully perused. The Judgments cited in the Bar have also been

noted.

21. To address the issues raised in the present writ petitions, it

will be necessary to refer to a few provisions of the Assam

Scheduled Castes and Scheduled Tribes (Reservation of posts in

services) Act, 1978.
This Act
was published in the Assam Gazatte

W.P(C) No. 363/2023 & Ors Page 56 of 103

(Extraordinary) on 28.05.1979. It is this Act has been brought by

the State of Assam to provide for reservation of vacancies in

services and posts for the members of the Scheduled Castes and

Scheduled Tribes. The statement and object of reasons is quoted

as under:

"In order to provide for reservation of vacancies in services and posts
for the members of the Scheduled Castes and Scheduled Tribes who
are the Backward Classes of citizen and are not adequately
represented in the services and posts in the affairs of the State
within the State, it was considered expedient to provide adequate
reservation of vacancies in services and posts for them."

22. Under
Section 5
of the Act of 1978, it is provided that

reservation for members of Scheduled Castes and Scheduled

Tribes in posts to be filled up by promotion in any establishment

shall be regulated in the manner provided thereafter.

Clause 5A provides the percentage of reservation for each

category namely, 7% for members of Scheduled Caste, 10% for

members of Scheduled Tribes (Plains) and 5% for members of

Scheduled Tribes(Hills) and further provided that the State

Government may from time to time review the implementation of

the reservation policy and take adequate measures including the

increased of percentage mentioned in the clause.

W.P(C) No. 363/2023 & Ors Page 57 of 103

Section 5B provides for separate post based roster for

recruitment and promotion for each cadre to be maintained by

every establishment for reservations of candidates of Scheduled

Castes and Scheduled Tribes as contained therein.

23. Clause 5A was subsequently inserted by an amendment.

Clause 5-A is extracted as under:

"5A Manner and procedure for giving effect of reservation-
The reservation for the members of the Scheduled Castes and the
Scheduled Tribes in services or posts in an establishment shall be
given effect to in the following manner, namely:

(i) A post based Roster Register shall be maintained to give effect to
the reservation of vacancies for Scheduled Castes and Scheduled
Tribes. Such roster shall be based on the Model roster as per Schedule
I and II appended to this Act and shall be adopted for the purpose by
each Establishment in such manner that the prescribed percentage of
reservation is maintained in each cadre;

(ii) Each Appointing authority shall prepare and notify the roster based
on the principles laid down in this Act and maintain Roster Register in
a manner containing such number of points as are equivalent to the
number of posts, in a cadre. In case of any increase or decrease in the,
cadre strength, the roster shall correspondingly by expanded or
contracted;

(iii) The roster is to be operated on the principle of replacement and
not as a running account, in other words, the point at which
reservation for different categories applies are fixed as per the roster
and vacancies caused by retirement etc. of persons occupying those
points shall be filled up by appointment of persons of the respective
categories;

W.P(C) No. 363/2023 & Ors Page 58 of 103

(iv) Separate rosters are to be maintained for giving effect to
reservation in direct recruitment and promotion;

(v) Cadre, for the purpose of a roster, shall mean a particular grade
and shall comprise the number of posts to be filled by a particular
mode of recruitment in terms of the applicable recruitment rules. Thus
in a cadre of say, 100 posts, where the recruitment rules prescribe a
ratio of 50:50 for direct recruitment and promotion, two roster- one
for direct recruitment and one for promotion (when reservation in
promotion applies)each comprising 50 points shall be drawn up on the
lines of the respective rosters;

(vi) Since reservation does not apply to transfer on deputation or
transfer, where the recruitment rules prescribe a percentage of posts
to be filled by this method, such posts shall be excluded while
preparing the rosters;

(vii) Appointment of candidates belonging to Scheduled Castes and
Scheduled Tribes which were made on merit and not due to
reservation, are not to be counted towards reservations so far as
direct recruitment is concerned. In other words, they are to be treated
as general category appointments;

(viii) For initial adoption of this post based roster, the existing backlog
vacancies in a cadre where the prescribed percentage of reservation
for the Scheduled Castes and the Scheduled Tribes has not been
achieved as per post based roster prepared under this Amendment Act,
shall be considered as vacancies released by recruitment, resignation,
promotion etc. of the persons belonging to the said reserved
categories and the same are to be filled up by direct recruitment or by
promotion of eligible persons from the respective categories by special
drive so that the prescribed percentage of reservation is maintained.

(ix) Before making an appointment by direct recruitment, the
Appointing authority shall ascertain by consulting the Roster Register
maintained by each Establishment, whether the post is reserved or

W.P(C) No. 363/2023 & Ors Page 59 of 103

unreserved and if it is reserved, for whom it is so reserved.

Immediately after an appointment is made, the particulars thereof
shall be entered in the Roster Register and signed by the Appointing
authority;

(x) In the absence of a qualified Scheduled Castes or Scheduled Tribes
candidate, as the case may be, in a particular year, the vacancy shall
be carried forward and filled up in the next year;

(xi) Every Establishment shall prepare and notify the roster for each
cadre equivalent to the number of posts with the concurrence of the
Personnel Department and Welfare of Plains Tribes and Backward
Classes Department;

(xii) The roster shall be maintained separately for permanent and
temporary posts;

(xiii) A vacancy caused due to any reason whatsoever, except
termination of service during probation, shall be treated as a fresh
vacancy;

(xiv) A candidate who claims to be a member of the Scheduled Castes
or the Scheduled Tribes shall support his candidature by a Certificate
from Deputy Commissioner/ Sub-Divisional Officer or from such other
authority as may be prescribed by rules made under the Act."

24. Under
Section 13
of the said Act, the Government is

empowered to frame the Rules for implementing the provisions of

the Act and inconsequence thereof, the Assam Scheduled Castes

and Scheduled Tribes (Reservation of vacancies in services and

posts) Rules, 1983 was framed.

W.P(C) No. 363/2023 & Ors Page 60 of 103

25. A perusal of the Act and the Rules above revealed that

under
Section 5A
of the Act of 1978, the following conditions inter

alia are noticed:

(i) A post based roster is to be maintained. The roster is to be

operated on the principle or replacement and not as a running

account;

(ii) The cadre shall mean a particular grade and shall comprise the

number of posts to be filled up by particular mode of recruitment;

and

(iii) The appointment made on merit of reserved candidates shall

not be counted towards the reserved category posts.

26. The parliament by the 77th Amendment had inserted Clause

4A under
Article 16
of the Constitution of India. Clause 4A

empowers the State to make any provision for reservation.

Subsequently by the 85th Amendment, further amendment was

brought in to Clause 4A of the Constitution of India to the effect

that nothing in the Article shall prevent the State from making any

provisions for reservation in matters of promotion with

consequential seniority to any class or classes of posts in the

services under the State in favour of Schedules Casts and

W.P(C) No. 363/2023 & Ors Page 61 of 103

Scheduled Tribes which in the opinion of the State are not

adequately represented in the services of the State. Pursuant to

the 77th and 85th Amendment, the State of Assam had brought in

the Office Memorandum No. ABP.59/96/163 dated 12.03.2002. By

the said Office Memorandum, consequential seniority was made

available to the Scheduled Castes/Scheduled Tribes Government

Servants upon their promotions by virtue of the Rule of

reservation/roster. This benefit was made available to the

reserved category Government servant w.e.f 17.06.1995. As such

by the Act of 1978 by virtue of
Section 5
reservation in promotion

to the reserved category candidates was already in place well

prior to the Constitutional Amendment to
Article 16.
By the Office

Memorandum dated 13.03.2002, the consequential seniority upon

promotion to the reserved category candidates was also

introduced. Subsequently, Section 5A was introduced pursuant to

an Amendment. The 2012 Office Memorandum was subsequently

followed by another Office Memorandum dated 29.12.2014.
The

said Office Memorandum provided for the guidelines to implement

the post based roster reservation system. In the said Office

Memorandum of 29.12.2014 at Clause 1.11, it is provided that the

rosters are an aid to determine the entitlement of different

categories with regard to the quota reserved for them in matters

W.P(C) No. 363/2023 & Ors Page 62 of 103

of appointment and promotion. They are not intended to

determine seniority in the cadre. Pursuant to the Judgment of the

Apex Court rendered in
M Nagaraj & Ors. Vs. Union of India
,

reported in (2006) 8 SCC 212and the U.P. Corporation Limited

(Supra) that 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 before

effecting the promotion to the reserved category candidates. In

pursuance to the said Judgment by the Apex Court, State of

Assam constituted a One-Man-Committee. The One-Man-

Committee submitted its report to the effect that there is

inadequacy of representation in the reserved category and

backwardness of the classes and therefore the One-Man-

Committee report suggested that reservation in promotion should

be continue. This report came to be assailed in writ petitions filed

before the Gauhati High Court being W.P(C) No. 1560/2015 and

W.P.(C) No. 2680/2015 which was filed by the society named

Equality Forum and other individuals. A Co-ordinate Bench of this

Court by its Judgment and Order dated 23.12.2015 rejected the

contentions of the State Government to proceed for reservation in

promotion on the basis of the recommendation of the One-Man-

Committee report. It was held by the Co-ordinate Bench that the

W.P(C) No. 363/2023 & Ors Page 63 of 103

mandate in
M Nagarajan
(Supra) and U.P. Power Corporation

(Supra)to have quantifiable data is not satisfied by the One-Man-

Committee report in the manner it sought to project the same. It

was held that there has to be an exercise of collection of

quantifiable data relating to the three Constitutional requirements,

namely (i) backwardness of the class; (ii) inadequacy of

representation in public service and (iii) overall efficiency in

administration in the event of reservation, are the quantifiable

data which are to be collected by the State before proceeding for

reservation in promotion. The Co-ordinate Bench held that till

such quantifiable data is collected. The Amendment of the Act of

1978 brought in by the 2012 Office Memorandum in so far as the

reservation in promotion are concerned shall remain in a domain

state.

27. Thereafter, the Government by Office Memorandum dated

03.08.2016 vide No. TAD/BC/68/2011/Pt-I/207 brought in the

said Office Memorandum for review of the Government Policy of

reservation in promotion with reference to the Judgment of the

Gauhati High Court in Equality Forum in W.P(C) No. 5610/2015.

The said Office Memorandum brought in the various guidelines to

be followed while considering promotion in any cadre in any

W.P(C) No. 363/2023 & Ors Page 64 of 103

establishment. It was provided that the policy of reservation in

promotion will continue. Under Clause (ii) of the said Office

Memorandum, it was laid down that while taking up the process

of promotion in a particular cadre of the service, every

establishment shall examine the representation of SC, ST(P) and

ST(H) candidates in a cadre in comparison with the prescribed

percentage of reservation and calculate shortfall if any in any

cadre with reference to a particular year. If in any particular cadre,

the SCs and STs are not adequately represented and shortfall is

found to exist in the cadre, they may be considered as backward

in so far 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, till the prescribed percentage in respect of the said

category is achieved. If no eligible incumbents belonging to the

shortfall category are available within the zone of consideration

then the number of posts that are required to meet the calculated

shortfall shall be kept vacant and the vacancy shall be carry

forward and filled up in the next year.

W.P(C) No. 363/2023 & Ors Page 65 of 103

28. Sub-clause (iv) provides that during the promotion process

where the stipulated percentage of reserved category is met, but

in the gradation list/seniority list, there are candidates of reserved

category who on merit are entitled to promotion then their cases

shall be considered for promotion on merit if such candidate has

not gained the seniority by way of any accelerated promotion

earlier.

29. Since the Office Memorandum dated 03.08.2016 is also
relevant for the purposes of this case, the same is extracted
below:

"GOVERNMENTOFASSAM
DEPARTMENT OF WELFARE OF PLAINS TRIBES AND BACKWARD CLASSES
DISPUR ::::ASSAM
No. TAD/BC/68/2011/Pt-I/207 dated Dispur 3rd 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 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

W.P(C) No. 363/2023 & Ors Page 66 of 103

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.

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 alongwith the length of service, participation in training
programs concerning job requirements, acquisition of degrees or diplomas
or diplomas on subject 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."

W.P(C) No. 363/2023 & Ors Page 67 of 103

30. It is this Office Memorandum more particularly Clauses (iii)

and (iv) of the said Office Memorandum which came to be

assailed by the writ petition being W.P(C) No. 5005/2016

(Bhagwan Pator) on the ground that the Clause (iii) and (iv) will

have the effect of de-reservation in respect of promotion and

promotion on merit to which a reserved category candidate is

otherwise entitled to and which is sought to be taken away. This

Office Memorandum was also challenged by the registered society

Equality Forum by filing W.P.(C) No. 5026/2016 on the ground

that this Office Memorandum is in violation of the Judgment

rendered earlier by the Co-ordinate Bench in Judgment dated

23.12.2015 rendered earlier by the Co-ordinate Bench in W.P(C)

No. 1560/2015 and W.P(C) No. 2680/2015. These writ petitions

came to be heard and disposed of together by Co-ordinate Bench

and by Judgment and order dated 06.06.2022, the Co-ordinate

Bench finally held as under:

"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

W.P(C) No. 363/2023 & Ors Page 68 of 103

representation and determining efficiency in administration while
giving effect to such policy of providing reservation."

31. The Co-ordinate Bench went on to hold the policy of

providing reservation in promotion with consequential seniority

holding the field as per Office Memorandum dated 12.03.2002,

the State is not within in competence and jurisdiction to deprive

the benefit to a meritorious reserved category candidate and that

too without expressly bringing such policy by superseding the

benefit granted under Office Memorandum dated 12.03.2009. The

Co-ordinate Bench held that the policy of providing reservation in

promotion with consequential seniority is holding the field. The

Co-ordinate Bench also held that
Article 16 (4A)
and
Article 16(4B)

being enabling provisions, the State is at liberty to implement its

policy for giving reservation in promotion with consequential

seniority or is at liberty not to provide for any reservation in

promotion. But these policies will have to be implemented

following due process of law including the dicta rendered in
M

Nagaraj
(Supra) and clarified in
Jarnail Singh
(Supra).

32. This Judgment came to be assailed before the Division

Bench of this Court in W.A No. 46/2023 and other connected writ

appeals. A Division Bench of this Court elaborately dealt with the

issues raised and overturned the Judgment of the learned Single

W.P(C) No. 363/2023 & Ors Page 69 of 103

Judge. The Division Bench upheld the Office Memorandum dated

03.08.2016 and also held that in view of the Judgment of the

Apex Court in
Jarnail Singh Vs. Laxmi Narayan Gupta
, reported in

(2018) 10 SCC 396 (hereinafter referred to as "Jarnail Singh-I")

that the Judgment of the learned Single Bench rendered in

Equality Forum
(supra) is no longer a good law and therefore the

findings of the Single Bench rendered in
Equality Forum
(Supra)

would no longer be binding on the State.

33. It is pertinent to mention here that the impugned Office

Memorandum dated 18.01.2023 which is presently assailed in

these bunch of writ petitions came to be issued by the State of

Assam after the Judgment of the learned Single Bench rendered

in
Bhagawan Pator
(Supra) but during the pendency of the writ

appeal No. 46/2023 and other connected writ appeals and prior to

the Judgment dated 10.08.2023 rendered by the Division Bench in

these writ appeal. The impugned Office Memorandum being

assailed in the present Office Memorandum is extracted below:

"GOVERNMENT OF ASSAM
DEPARTMENT OF PERSONNEL:::: PERSONNEL (B)
DISPUR::::GUWAHATI-06

No. ABP.81/2022/58 Dated Dispur, the 18th January, 2023

OFFICE MEMORANDUM

W.P(C) No. 363/2023 & Ors Page 70 of 103

SUBJECT: Review of Government Policy of Reservation in Promotion
with reference to the Hon'ble Gauhati High Court judgments.

The Hon'ble Gauhati High Court in its judgment and order dated
06.06.2022 in W.P.(C) No. 5005/2016 (Bhagwan Pator-Vs. SOA & Ors) and
WP(C) No. 5026/2016 (Equality Forum-Vs-SOA & Ors) at Para 7 (IX) of this
order, has observed that,

"Para 7(IX):
Article 16 (4A)
and
16(4B)
being enabling provision, the State is
at liberty to implement its policy of giving reservation in promotion with
consequential seniority, without consequential seniority or at liberty not to
provide any reservation in promotion. However, while implementing such
policy, due process of law need to be followed including dicta in
M Nagraj

(Supra) clarified in
Jarnail Singh
(Supra)."

The Government of Assam after careful examination of the Hon'ble High
Court judgment dated 23.12.2015 in W.P.(C) No. 1560 (Equality Forum-Vs-
SOA & 3 Ors.) and the judgment dated 06-06-2022 in WP(C) No. 5005/2016
and WP(C) No. 5026/2016, has reviewed the existing procedure of effecting
'reservations in promotion with consequential seniority for the reserved
categories and accordingly lays down the following guidelines to be followed
while considering promotion in any establishment.

i) The policy of reservation in promotion shall continue,

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 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 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, it may be considered
as inadequacy in representation 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.

W.P(C) No. 363/2023 & Ors Page 71 of 103

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 the 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 Personnel for de-
reservation, subject to the condition that no eligible candidate belonging to
the category for which the post is reserved, is available within the zone of
consideration placed before the annual Selection Committees Departmental
Promotion Committee for two consecutive years. In other words, the
concerned Departments may move proposal for de-reservation in the third
year.

iv) (a) In case of promotion in Group-A services, the quantum of
reservation for SC, ST(P), STCD in promotion shall be as per stipulated
percentage of reservation available for these categories. However, SC or
ST(P) or ST(H) Government Servants in Group-A services on their
accelerated promotion by virtue of rule of reservation, shall not be entitled to
consequential seniority. The application of general catch-up rule will allow
eligible officers who were senior in the merit list at the entry level in Group A
services to regain their seniority in the promotional post, once they are
promoted to the same cadre as an officer of reserved category, provided the
officer of the reserved category had got his promotion ahead of an officer
senior to him in the merit list, by way of accelerated promotion on account of
reservation in promotion in a particular cadre. Seniority of Government
servants in Group-A services shall be revised accordingly as per above
principle.

Further, an officer promoted from Group-B to Group-A service, will
also regain his seniority in Group-A service on promotion vis-a-vis his
compatriot in Group-B service, provided that the officer was senior to the
reserved category officer in the particular Group B cadre, prior to the
promotion of the reserved category officer into Group A. Seniority of such
Group B Government servant promoted to Group A service shall be revised
accordingly in Group A.

If an occasion arises during the promotion process in Group A service,
in which stipulated percentage in respect of reserved category is met in the
next promotional grade, but in the zone of consideration there are
candidates of reserved category who on merit are entitled to the promotions,
their cases shall be considered for promotion on merit, if such candidates

W.P(C) No. 363/2023 & Ors Page 72 of 103

have not made into zone of consideration by way of any accelerated
promotion earlier by virtue of rule of reservation.

(b) In case of promotion in Group B, C and D services, the quantum of
reservation for SC, ST(P), ST(H) in promotion shall be as per stipulated
percentage of reservation of these categories. The SC or ST(P) or ST(H)
Government servants on their promotion by virtue of rule of reservation shall
be entitled to consequential seniority. In other words candidates belonging to
General/OBC/MOBC categories promoted later will be placed junior to the
Scheduled Castes/ Scheduled Tribes Government servant promoted earlier.
Seniority of Government Servants in Group-B, C and D services shall be
revised accordingly.

v) As regards the question of maintaining administrative efficiency as
required under
Article 335
of the Constitution of India, Hon'ble High Court in
WP(C) No.1560/2015 (Equality Forum-Vs-SOA & 3 Ors.) held that "......it
should be assessed applying objective measurable standards". As such, 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 on subjects if mandatory to the job, may 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 (Departmental Promotion Committee) which shall evaluate all
relevant parameters while making its recommendation.

This Office Memorandum is issued in supersession of earlier O.M. No.
ABP.59/96/163, dated 12/03/2002 and OM No. TAD/BC/68/2011/Pt-
I/207,dated 03/08/2016.

This shall come into force with immediate effect.

Sd/- Tonmoy Pratim Borgohain, IAS
Secretary to the Government of Assam
Personnel Department"

34. The Clauses No. (iii), (iv)(a) and (v) of this Office

Memorandum are challenged in these writ petitions. The essence

W.P(C) No. 363/2023 & Ors Page 73 of 103

of this Office Memorandum is that the State of Assam has decided

to continue the policy of reservation and promotion but has done

away with the consequential seniority of the reserved category

candidates and has instead brought in the "catch-up Rule"

enabling the General category candidates who were senior in the

feeder posts to regain their seniority in the higher post after

promotion provided the reserved category candidate who was

promoted earlier did not earn a further promotion and the General

category candidate was senior to the said reserved category

candidate in the feeder category.

35. It is no longer res integra that
Article 16 (4A)
and
Article 16

(4B)
had been held to be enabling provisions by the Apex Court in

M. Nagaraj
(Supra) and the subsequent Judgments. If these

provisions are enabling provisions then the State is at liberty to

provide for reservation in promotion with or without consequential

seniority as the case may be, if such a decision is arrived at by

the State.

Both the Co-ordinate Bench in
Bhagawan Pator
(Supra)

as well as a Division Bench in
Ivy Gohain Dasgupta
(Supra) had

categorically held that the State is at liberty to grant seniority in

promotion to the reserved category or not to grant such seniority

in promotion to the reserved category.

W.P(C) No. 363/2023 & Ors Page 74 of 103

36. A careful perusal of the Act read with the Rules will reveal

that even prior to the 77th and 85th Constitutional Amendments,

the State by way of the Act of 1978 read with the Rules of 1983

had made provisions for reservation in promotion of in respect of

reserved categories.
This Act
and the Rules are not department

specific and are applicable to all the Departments/establishments

in respect of such promotions to be made to the Government

Servants who satisfy the criteria.
The Act
read with the Rules

nowhere specifically provides for grant of consequential seniority

upon promotion of the reserved category candidates. It is in the

absence of such provisions that the State had brought out the

Notifications and Office Memorandums from time to time. By

Office Memorandum dated 12.06.1996 pursuant to the Judgment

of the Apex Court rendered in
Union of India & Ors. Vs. Virpal

Singh Chauhan & Ors
, reported in (1995) 6 SCC 684, it was

provided that the candidates promoted earlier by virtue of Rule or

reservation/roster shall not be entitled to seniority over his senior

in the feeder category and that as an when the General category

candidate who was senior to the reserved category candidate in

the feeder category is promoted, such General category candidate

with regain his seniority over his reserved category.

Notwithstanding that he was promoted subsequent to the

W.P(C) No. 363/2023 & Ors Page 75 of 103

reserved category candidate. This Office Memorandum was

followed by the Office Memorandum dated 12.03.2002 by which

pursuant to the Amendment of
Article 16 (4A)
of the Constitution

of India. The State of Assam conferred consequential seniority to

the reserved category Government servants on their promotion by

virtue of the Rule of reservation/roster. The earlier Office

Memorandum dated 12.06.1996 was accordingly revised and

superseded. This Office Memorandum was followed by the

subsequent Office Memorandum on 03.08.2016.

37. A careful perusal of the Office Memorandum dated

03.08.2016 reveals that this Office Memorandum was not issued

in supersession of the earlier Office Memorandum dated

12.03.2002. It was in this context that the Office Memorandum

dated 03.08.2016 was put to challenge and the Co-ordinate Bench

in
Bhagawan Pator
(Supra) had essentially held the Clauses put to

challenge in the Office Memorandum dated 03.08.2016 to be not

valid in view of the fact that the position in terms of the Office

Memorandum dated 12.03.2002 remained unchanged.

38. The contention of the learned counsel for the petitioners

that the policy of consequential seniority has always been in place

and followed by the Government of Assam and the same could

W.P(C) No. 363/2023 & Ors Page 76 of 103

not have been recalled or turned down as had been sought to be

done by the impugned Office Memorandum dated 18.01.2023,

will require examination in the above conspectus of facts.

39. As above discussed, although well prior to the Constitutional

Amendments brought in to
Article 16
of the Constitution, the

State of Assam by the Act of 1978 read with the Rules of 1983

had implemented the policy of reservation on promotion. There is

no quarrel with this position on facts. The point of discord is

whether the Act itself contemplates consequential seniority in

respect of the reserved category candidates who have been

promoted under the reservation policy and therefore the principle

of consequential seniority having been conferred under the Notice

dated 12.03.2002 and the source of power for which can be

traced back to the Act of 1978, whether denial of such principle in

terms of the impugned notification will amount to the vested

rights of the writ petitioners being taken away.

40.
The Act
of 1978 read with the Rules have been brought in

by the State with the object of providing reservation in

promotions. The statement of objects and reasons clearly provide

that the Act proposes to provide for reservation of vacancies in

services and posts for the members of Scheduled Castes and

W.P(C) No. 363/2023 & Ors Page 77 of 103

Scheduled Tribes who are backward classes and are not

adequately represented in the services and posts in the affairs

within the State. A careful perusal of the Act including the

Amendment brought thereto reveals that the Act provides for

maintaining a post based roster. Cadre is defined, for the

purposes of roster, to mean a particular grade and shall comprise

the number of posts to be filled up by particular modes of

recruitment in terms of the applicable recruitment Rules. The

roster to be maintained shall be separate for direct recruitment as

well as for promotions. The Rules of 1983 have been framed

under the powers conferred under
Section 13
of the Act of 1978.

Under Rule 5 of the said Rules, the procedure to be followed is

prescribed in respect of promotions by selection. Under Rule 5(2),

the Selection Committee will consider the suitability of all

candidates, the details of whom are furnished by the appointing

authority and thereafter recommend a list of candidates found

suitable for promotion in order of preference which shall be the

determining factor about the inter se seniority of the candidates

after promotion. Rule 5(3) provides that in addition to the list as

required to be submitted under Rule 5(2), Selection Committee

shall furnish separate list of candidates belonging to Scheduled

Castes, Scheduled Tribes (Hills), Scheduled Tribes (Plains) and

W.P(C) No. 363/2023 & Ors Page 78 of 103

others in order of preference for appointment against the

vacancies shown to be reserved for Scheduled Castes, Scheduled

Tribes(Hills), Scheduled Tribes(Plains) against the unreserved

vacancy. Under Rule 5(4), the appointing authority shall consider

the list in accordance with the provisions of the respective service

Rules and shall consult the APSC where such consultation is

necessary. Under Rule 6, the appointing authority is required to

maintain a register as per the proforma appended to the Rules

separately for direct recruitment and for promotion. This register

shall be maintained in respect of every year beginning on the 1st

of March and ending on the last day of February in the next year.

Further Rule 4 of the Rules provides for submission of annual

report showing the position regarding appointment of candidates

belonging to Scheduled Castes, Scheduled Tribes by direct

recruitment and by promotion shall be submitted by each

administrative department to the department for the Welfare of

Plains Tribes and Backward Classes. The relevant provisions of

the Rules are extracted below for ready reference:

"5. Promotion by selection- While filling up vacancies by promotion
the following procedure shall be followed-

1) The Appointing Authority while making a request to the selection
Committee/Board for recommending candidates for promotion, shall
communicate to the Selection Committee / Board the details about the

W.P(C) No. 363/2023 & Ors Page 79 of 103

reservation for the Scheduled Castes and scheduled Tribes (Hills) and
Scheduled Tribes (Plains) and shall also furnish the details about such
number of candidates as are to be furnished in accordance with the
provisions of the respective service rules. In case however, where
there is no service rules for the service in which the promotion is to be
made, the Appointing Authority will furnish the details about the
candidates equal to four times the number of vacancies.

(2) The Selection Committee/ Board will consider the suitability of all
the candidates the details of whom are furnished by the appointing
authority and recommend a list of candidates found suitable for
promotion in order of preference, which shall be the determining
factor about the inter se seniority of the candidates after promotion.

(3) In addition to the list mentioned in sub-rule (2) above, the
Selection Committee shall furnish separate list of candidates belonging
to Scheduled Castes, Scheduled Tribes (Hills), Scheduled Tribes
(Plains) and others, in order of preference for appointing against the
vacancies shown as reserved for Schedules Castes and Scheduled
Tribes (Hills) and Scheduled Tribes (Plains) and against the
unreserved vacancies.

(4) The Appointing Authority shall consider the list in accordance with
the provisions of the respective service rules and shall also consult the
Assam Public Service Commission where such consultation is
necessary, and shall finally approve the list.

(5) The Appointing Authority shall thereafter make promotions in
accordance with the roster provided in Clause (1) of the Scheduled to
the Act in Order of preference indicated in the lists.

(6) In case of non availability of adequate number of candidates
belonging to Scheduled Castes and Scheduled Tribes (Hills) and
Scheduled Tribes (Plains) in the list mentioned in sub-rules (2) and (3)
of this rule and if it is considered that the vacancies reserved for these
categories of candidates cannot be left vacant in the interest of Public

W.P(C) No. 363/2023 & Ors Page 80 of 103

Service, the Appointing Authority with prior concurrence of the
Department for the Welfare of Plains Tribes and Backward Classes
shall issue orders deresrving the vacancies giving one explanation for
the dereservation, and shall thereafter fill up the dereserved vacancies
by promoting officers from the list furnished by the Selection
Committee/Board and approved by the Assam Public Service
Commission/Appointing Authority in order of preference. The vacancy
so dereserved shall be carried forward till the vacancy is filled up by a
candidate in whose favour the reservation stood in the roster.

6. Maintenance of Registers of the appointment- Even
Appointing Authority shall maintain the register as mentioned iy

Section 12(i)
of the Act and also in para (ii) of the
Schedule to the Act

in respect of every year beginning on the first march and ending on
the last day of February in the next year, in the proforma furnished at
Appendix-II separately for direct recruitment and for promotion.

7. Submission of Annual Report- An annual report showing the
position regarding appointment of candidates belonging to Scheduled
Castes, Scheduled Tribes by direct recruitment and by promotion shall
be submitted by each Administrative Department to Department for
the Welfare of Plains Tribes and Backward Classes in the manner
prescribed below-

(1) The annual report shall be for the period from the first day of
March to the last day February next.

(2) As soon after the first day March every year as possible, every
Appointing Authority shall sent to the respective administrative
Department-

(i) a Statement in the form given in Appendix-III showing the total
number of employees in each class of service indicating the number of
employees belonging to the Scheduled Castes and Scheduled Tribes;
and

W.P(C) No. 363/2023 & Ors Page 81 of 103

(ii) a Statement each in the proforma given in Appendix-IV A and
Appendix-IV B, showing the particulars of appointments made during
the year and the number of appointees belonging to Scheduled Castes
and Scheduled Tribes.

(3) The Administrative Department shall consolidate all the reports
submitted by different Appointing Authority under its administrative
control and submit the report as provided in the substantive clause of
this rule."

41. A careful perusal of the Act of 1978 read with the Rules will

reveal that no such mandate under the Act or the Rules is

discernable. This is qualified by the fact that the Government of

Assam had from time to time issues various Office Memorandums

either conferring consequential seniority or withdrawing the

benefit of consequential seniority. If the provisions of the Act of

1978 and the Rules of 1983 are to be read together then it is

clear that there is no policy available under the Act of 1978 read

with the Rules of 1983 which confers automatic consequential

seniority on the reserved category candidates who have been

granted accelerated promotion on the reservation policy. In the

absence of any specific provisions thereto, it cannot be assumed

that accelerated promotions made under the reservation policy

will necessarily be also conferred with the benefits of

consequential seniority. On the contrary, in the absence of any

such specific provisions or criteria specified under the Act of 1978

W.P(C) No. 363/2023 & Ors Page 82 of 103

read with the Rules of 1983, it can only mean that the benefits of

accelerated promotion would not grant consequential seniority.

This benefit of consequential seniority has been conferred by the

State by bringing in Office Memorandum dated 12.03.2002.

42. The petitioners are members of the Water Resources

Department and the PWD Department. Promotions in both these

Departments are governed by their own service Rules. In the said

service Rules, there is a provision which lays down the procedure

for promotion. As per the said procedure laid down, the

appointing authority is to determine the list of eligible candidates

as per the assessments made in terms of the Rules. Ordinarily the

Officers who are included in the zone of consideration are four (4)

time the number of the vacancies in the order of seniority. This is

a standard practice applicable in all most departments including

all the works department of the State. As such, the process for

promotion is governed by the service Rules and not by the Act of

1978 read with the Rules of 1983. Therefore, the procedure laid

down for promotion is provided in detail under the respective

Service Rules governing the service conditions of the employees

of the various departments. That apart, the Service Rules also

provides that the seniority of a member of a cadre shall be in the

W.P(C) No. 363/2023 & Ors Page 83 of 103

order of merit as determined by the selection committee. Under

such circumstances, the claim of the petitioners that their rights

are infringed by virtue of consequential seniority not being

conferred upon promotion also cannot be accepted.

43. As such, it is reiterated that the Act of 1978 read with the

Rules of 1983 does not provide for any provision or criteria for

automatic or consequential seniority upon such promotion of

reserved category candidates under the reservation policy.
The

Act
of 1978 read with the Rules of 1983 merely brings in a law to

grant reservation in promotion in respect of reserved category

candidates. Any additional benefits of consequential seniority is

not provided for under the Act of 1978 read with the Rules of

1983. Such benefits have been brought or provided by the State

by issuance of such Notifications or Office Memorandums from

time to time.

44. A perusal of the Office Memorandum dated 12.06.1996

reveals that the benefit of consequential seniority on promotion

for reserved category candidates had been taken away pursuant

to the Judgment of the Apex Court rendered in
Virpal Singh

Chauhan
(Supra). The position which existed in the State prior to

the Office Memorandum dated 12.06.1996 is not available before

W.P(C) No. 363/2023 & Ors Page 84 of 103

this Court. Even assuming that consequential seniority on

promotion of the reserved category candidates was granted by

the State or was in place prior to 12.06.1996, then such benefit

was either granted by any such Notification that may have been

brought in by the State or upon such interpretation as may have

been made by the State of the law as it existed then. However,

nothing has been pointed out to the Court that such a provision

existed in the Act as well as the Rules prior to 12.06.1996.

45. Under such circumstances, the contention of the learned

counsel for the petitioner that in the absence of anything to the

contrary, reservation and promotion to the reserved category

candidates would also automatically grant them the benefit of

consequential seniority cannot be accepted and the same is

therefore rejected.

46. The Office Memorandum dated 12.06.2002 having conferred

the benefit of consequential seniority in reservation or promotion

to reserved category candidates, was conferred by the State of

Assam and which continued till the Office Memorandum dated

03.08.2016 was brought in which sought to amend the benefits

granted under the Office Memorandum of 12.03.2002.

W.P(C) No. 363/2023 & Ors Page 85 of 103

47. This Office Memorandum dated 03.08.2016 although was

considered to be bad in law by the Co-ordinate Bench in

Bhagawan Pator
(Supra) in view of the fact that the earlier Office

Memorandum dated 12.03.2002 was still holding the field.

However, the Division Bench in
Ivy Gohain Dasgupta
(Supra)

overruled the views of the Co-ordinate Bench. Both the Co-

ordinate Bench as well as the Division Bench had categorically

held that the State Government was within its powers to grant or

not to grant the benefit of reservation in promotion along with

consequential seniority. Such view held by the Single Bench and

also by the Division Bench is the correct view as have been
laid

down in
law by the Apex Court in
M. Nagaraj
(Supra) and the

catena of the Judgments thereafter.

The findings of the Division

Bench in
Ivy Gohain Dasgupta
(Supra) is not under appeal and

therefore the same has attained finality as on date.

48. The impugned Office Memorandum dated 18.01.2023 and

the context in which the earlier Office Memorandum dated

03.08.2016 was issued are largely operating in the same sphere.

The impugned Office Memorandum dated 18.01.2023 have also

been issued in supersession of the earlier Office Memorandums

dated 12.03.2002 and 03.08.2016.

W.P(C) No. 363/2023 & Ors Page 86 of 103

49. Clause 4(A) of the Office Memorandum dated 18.01.2023

provides that Government servants in the reserved categories on

their accelerated promotion under the Rule or reservation shall

not be entitled to consequential seniority. The application of

general catch-up Rule will allow the eligible officers who were

senior in the merit list at the entry level in Group-A services to

regain their seniority in promotional post once they are promoted

to the same cadre as the Officer of the reserved category. The

said Clause 4A further provides similar benefits from Officers who

are promoted from Group-B to Group-A category. It also provides

during the process of promotion in the Group-A services in which

the stipulated percentage of the reserved category although is

met but in the zone of consideration there are candidates of

reserved category who on merit are entitled to the promotions,

their cases will be considered for promotion on merit, if such

candidates are not in the zone of consideration by way of

accelerated promotion earlier by virtue of the Rule or reservation.

50. The first part of Clause 4A is the policy of catch-up Rule

which as discussed before has been brought in by the State

superseding the benefits of consequential seniority as was

brought in by the Office Memorandum dated 12.03.2002. The

W.P(C) No. 363/2023 & Ors Page 87 of 103

superseding of the earlier Office Memorandum of 12.03.2002 and

the implementation of the policy of catch-up Rule over the

consequential seniority by itself cannot be held to be beyond the

powers of the State inasmuch as, as have been discussed above,

no such policy is discernable in the Act of 1978 read with the

Rules of 1983. That apart, the Single Bench in
Bhagawan Pator

(Supra) as well as the Division Bench in
Ivy Gohain Dasgupta

(Supra) had categorically held that the State Government is within

its powers to grant or not to grant consequential seniority in

promotions of reserved category candidates.

This is more so in

view of the law
laid down by
the Apex Court in
M Nagaraj
(Supra)

where it was held
Article 16 (4A)
and
Article 16 (4B)
are enabling

provisions for the State to grant such benefits if the State so

desires.

51.
In
Sudhakar Baburao Nangure Vs. Noreshwar Raghunathrao

Shende and Ors.
, reported in (2020) 11 SCC 399, the Apex Court

was considering a challenge made by General Category

candidates to the promotion given to reserved category

candidates with consequential seniority. In the facts of the case,

Government Resolution dated 20.10.1997 provided that Officer

belonging to reserved category was to retain seniority in

W.P(C) No. 363/2023 & Ors Page 88 of 103

promotional post. Subsequent Government Resolution dated

20.03.2003 confirmed that policy and also clarified that seniority

would be governed by regular date of promotion. The appellant

before the Apex Court, however, had failed to challenge the

appointment of the respondent to the next higher post as well as

the Government Resolution dated 20.03.2003 providing for

consequential seniority. It was in these circumstances that the

Apex Court held that the seniority list which was challenged fixing

the seniority of the respondent reserved category candidate

above the appellant belonging to the General category candidate

in the cadre of JDTP was justified. The Apex Court while

considering the issues had considered the important Judgments

and the earlier precedents in respect of the reservation in

promotion with consequential seniority. The Apex Court after

consideration of all the Judgments referred to in the said case

rejected the bill on the ground that the appellant had failed to

challenge the appointment of the first respondent to the next

higher post as well as a challenge to the circular dated

20.03.2003 providing for consequential seniority. It was held by

the Apex Court that in the earlier round of litigation, the Apex

Court have given liberty to the parties to pursue the matter

regarding the applicability of catch up Rule before the High Court

W.P(C) No. 363/2023 & Ors Page 89 of 103

in the first instance and then before the Supreme Court if the

appellant was still aggrieved. However, in the facts of the case,

the Apex Court held that the challenge that has been raised

before the Apex Court has been developed before this Court

without any basis in the pleadings and in that context declined to

entertain the appeals. However, the Apex Court while examining

the matter had referred to the relevant case laws and the earlier

precedents of the Apex Court on the aspect of reservation in

promotion with consequential seniority. It is relevant to refer to

those discussions of the Apex Court in the said Judgment and for

the said purpose, the following paragraphs are extracted:

"36. A line of cases before this Court considered the effect of an
accelerated promotion granted to a member of a Scheduled Caste or
Scheduled Tribe in terms of consequential seniority in a higher post.
More specifically, the vexed issue was whether a member of such a
caste and tribe who obtains promotion earlier than a senior
belonging to the general or open category in the feeder cadre would
retain that seniority on the latter being promoted to a higher post.

37.
In
Union of India v. Virpal Singh Chauhan [Union of
India
v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1]
("Virpal Singh Chauhan"), a two-Judge Bench of this Court held that
the State could provide that a candidate who had been promoted
earlier on the basis of reservation and on the application of the
roster would not be entitled to seniority over a senior belonging to
the general category in the feeder category. A senior belonging to

W.P(C) No. 363/2023 & Ors Page 90 of 103

the general category who is promoted to a higher post subsequently
would regain seniority over the reserved candidate.

38. The decision in
Virpal Singh Chauhan [Union of India v. Virpal
Singh Chauhan
, (1995) 6 SCC 684 : 1996 SCC (L&S) 1] led to the

Constitution (Eighty-fifth Amendment) Act, 2001
with effect from 17-
6-1995. Clause (4-A), as amended, expanded the ambit of the earlier
provision by enabling the State to also provide for consequential
seniority, while making the provision for reservation in matters of
promotion. Clause (4-A) of
Article 16
, in its present form, reads thus:

"16. (4-A) Nothing in this article shall prevent the State from
making any provision for reservation in matters of promotion, with
consequential seniority, to any class or classes of posts in the
services under the State in favour of the Scheduled Castes and the
Scheduled Tribes which, in the opinion of the State, are not
adequately represented in the services under the State."

39. The principle which has been enunciated in
Virpal Singh
Chauhan [Union of India v. Virpal Singh Chauhan
, (1995) 6 SCC 684 :

1996 SCC (L&S) 1] has come to be known as the "catch-up" rule.

In Ajit Singh Januja v. State of Punjab [Ajit Singh Januja v. State of
Punjab, (1996) 2 SCC 715 : 1996 SCC (L&S) 540] ["Ajit Singh (1)"], a
three-Judge Bench of this Court adopted the catch-up rule
propounded in
Virpal Singh Chauhan [Union of India v. Virpal Singh
Chauhan
, (1995) 6 SCC 684 : 1996 SCC (L&S) 1] . This Court held
that a balance has to be maintained so as to avoid reverse
discrimination and a rule or circular which gives seniority to a
candidate belonging to the reserved category promoted on the basis
of the roster point would violate
Articles 14
and
of the
Constitution.

40. A contrary view was taken by another three-Judge Bench
in
Jagdish Lal v. State of Haryana [Jagdish Lal
v. State of Haryana,
(1997) 6 SCC 538 : 1997 SCC (L&S) 1550] ("Jagdish Lal") to the
effect that by virtue of the principle of continuous officiation, a

W.P(C) No. 363/2023 & Ors Page 91 of 103

candidate belonging to the reserved category who is promoted
earlier than a general candidate due to an accelerated promotion
would not lose seniority in the higher cadre.

This conflict of decisions
was resolved by a Constitution Bench in
Ajit Singh (2) v. State of
Punjab [Ajit Singh
(2) v. State of Punjab, (1999) 7 SCC 209 : 1999
SCC (L&S) 1239] ["Ajit Singh (2)"].

The Constitution Bench upheld
the principle laid down in
Virpal Singh Chauhan [Union of
India v. Virpal Singh Chauhan
, (1995) 6 SCC 684 : 1996 SCC (L&S) 1]
and Ajit Singh (1) [Ajit Singh Januja v. State of Punjab, (1996) 2 SCC
715 : 1996 SCC (L&S) 540] and disapproved of the decision
in
Jagdish Lal [Jagdish Lal v. State of Haryana
, (1997) 6 SCC 538 :

1997 SCC (L&S) 1550] . This Court held thus : [Ajit Singh (2)
case [
Ajit Singh (2) v. State of Punjab
, (1999) 7 SCC 209 : 1999 SCC
(L&S) 1239] , SCC p. 246, para 77]
"77. We, therefore, hold that the roster-point promotees (reserved
category) cannot count their seniority in the promoted category from
the date of their continuous officiation in the promoted post, -- vis-à-

vis the general candidates who were senior to them in the lower
category and who were later promoted. On the other hand, the
senior general candidate at the lower level, if he reaches the
promotional level later but before the further promotion of the
reserved candidate -- he will have to be treated as senior, at the
promotional level, to the reserved candidate even if the reserved
candidate was earlier promoted to that level. We shall explain this
further under Point 3. We also hold that
Virpal [Union of
India v. Virpal Singh Chauhan
, (1995) 6 SCC 684 : 1996 SCC (L&S) 1]
and Ajit Singh [Ajit Singh Januja v. State of Punjab, (1996) 2 SCC
715 : 1996 SCC (L&S) 540] have been correctly decided and
that
Jagdish Lal [Jagdish Lal v. State of Haryana
, (1997) 6 SCC 538 :

1997 SCC (L&S) 1550] is not correctly decided. Points 1 and 2 are
decided accordingly."

41. The constitutional validity of clauses (4-A) and (4-B) of
Article 16

of the Constitution was dealt with in a decision of a Constitution

W.P(C) No. 363/2023 & Ors Page 92 of 103

Bench of this Court in
Nagaraj [M. Nagaraj v. Union of India
, (2006)
8 SCC 212 : (2007) 1 SCC (L&S) 1013] .

Nagaraj [M.
Nagaraj v. Union of India
, (2006) 8 SCC 212 : (2007) 1 SCC (L&S)
1013] laid down that the catch-up rule and the concept of the
consequential seniority are essentially precepts of service
jurisprudence. They cannot, in the view of the Constitution Bench, be
elevated to the status of a component of the basic structure. These
precepts have been held to be practices as distinct from
constitutional principles. The consequence is that they do not lie
beyond the amending power of Parliament : neither the catch-up
rule nor consequential seniority are elements of clauses (1) or (4) of

Article 16.
These have been held to be the principles evolved to
control the extent of reservation.

42. The validity of clauses (4-A) and (4-B) of
Article 16
has been
upheld by the Constitution Bench in
Nagaraj [M. Nagaraj v. Union of
India
, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] on the rationale
that "they retain the controlling factors or the compelling reasons,
namely, backwardness and inadequacy of representation which
enables the States to provide for reservation keeping in mind the
overall efficiency of the State administration under
Article 335" [
M.
Nagaraj v. Union of India
, (2006) 8 SCC 212 at p. 278 : (2007) 1
SCC (L&S) 1013] .

Nagaraj [M. Nagaraj v. Union of India
, (2006) 8
SCC 212 : (2007) 1 SCC (L&S) 1013] held that the State must
demonstrate in each case the existence of compelling reasons,
namely, (i) backwardness; (ii) inadequacy of representation; and (iii)
overall administrative efficiency before providing for reservation.

Construing clauses (4-A) and (4-B) of
Article 16
to be
enabling,
Nagaraj [M. Nagaraj v. Union of India
, (2006) 8 SCC 212 :

(2007) 1 SCC (L&S) 1013] holds that if the State wishes to exercise
its discretion under the enabling provisions, it must collect
quantifiable data showing backwardness of the class as well as
inadequacy of representation of that class in public employment in

W.P(C) No. 363/2023 & Ors Page 93 of 103

addition to complying with the norm of efficiency embodied in Article

335. The Court held thus : (SCC p. 278, para 123)
"123. However, in this case, as stated above, the main issue
concerns the "extent of reservation". In this regard the State
concerned will have to show in each case the existence of the
compelling reasons, namely, backwardness, inadequacy of
representation and overall administrative efficiency before making
provision for reservation. As stated above, the impugned provision is
an enabling provision. The State is not bound to make reservation
for SCs/STs in matters of promotions. However, if they wish to
exercise their discretion and make such provision, the State has to
collect quantifiable data showing backwardness of the class and
inadequacy of representation of that class in public employment in
addition to compliance with
Article 335.
It is made clear that even if
the State has compelling reasons, as stated above, the State will
have to see that its reservation provision does not lead to
excessiveness so as to breach the ceiling limit of 50% or obliterate
the creamy layer or extend the reservation indefinitely."

43.
In the recent decision of a Constitution Bench of this Court
in
Jarnail Singh v. Lachhmi Narain Gupta [Jarnail Singh
v. Lachhmi
Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] ("Jarnail
Singh"), Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 :

(2007) 1 SCC (L&S) 1013] has been followed save and except for the
dictum requiring the State to demonstrate backwardness as a
condition for the exercise of the enabling power in making
reservations in promotion for Scheduled Castes and Tribes. This part
of the judgment in
Nagaraj [M. Nagaraj v. Union of India
, (2006) 8
SCC 212 : (2007) 1 SCC (L&S) 1013] has been held to be
inconsistent with the nine-Judge Bench decision in
Indra
Sawhney [Indra Sawhney v. Union of India
, 1992 Supp (3) SCC 217 :

1992 SCC (L&S) Supp 1] . The Court in
Jarnail Singh [Jarnail
Singh v. Lachhmi Narain Gupta
, (2018) 10 SCC 396 : (2019) 1 SCC
(L&S) 86] held thus : (SCC p. 423, para 23)

W.P(C) No. 363/2023 & Ors Page 94 of 103

"23.

... It is clear, therefore, that
Nagaraj [M. Nagaraj v. Union of
India
, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] has, in
unmistakable terms, stated that the State has to collect quantifiable
data showing backwardness of the Scheduled Castes and the
Scheduled Tribes.

We are afraid that this portion of the judgment is
directly contrary to the nine-Judge Bench in
Indra Sawhney [Indra
Sawhney v. Union of India
, 1992 Supp (3) SCC 217 : 1992 SCC (L&S)
Supp 1] . Jeevan Reddy, J., speaking for himself and three other
learned Judges, had clearly held:

'[t]he test or requirement of social and educational backwardness
cannot be applied to the Scheduled Castes and Scheduled Tribes,
who indubitably fall within the expression "backward class of
citizens".'(See SCC p. 727, paras 796 to 797.)"

R.F. Nariman, J. speaking for the Constitution Bench held thus : (SCC
p. 424, para 24)
"24. ... Thus, it is clear that when
Nagaraj [M. Nagaraj v. Union of
India
, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] required the
States to collect quantifiable data on backwardness, insofar as
Scheduled Castes and Scheduled Tribes are concerned, this would
clearly be contrary to
Indra Sawhney [Indra Sawhney v. Union of
India
, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] and would
have to be declared to be bad on this ground."

44. The decision in
Nagaraj [M. Nagaraj v. Union of India
, (2006) 8
SCC 212 : (2007) 1 SCC (L&S) 1013] has been followed in several
subsequent decisions of this Court : (i) Suraj Bhan Meena v. State of
Rajasthan [Suraj Bhan Meena v. State of Rajasthan, (2011) 1 SCC
467 : (2011) 1 SCC (L&S) 1] ("Suraj Bhan Meena"); (
ii) U.P. Power
Corpn. Ltd. v. Rajesh Kumar [U.P. Power Corpn. Ltd.
v. Rajesh
Kumar, (2012) 7 SCC 1 : (2012) 2 SCC (L&S) 289] ("U.P. Power
Corpn."); (iii) S. Panneer Selvam v. State of T.N. [S. Panneer
Selvam v. State of T.N., (2015) 10 SCC 292 : (2016) 1 SCC (L&S) 76]
("Panneer Selvam"); and (iv) B.K. Pavitra v. Union of India [B.K.

W.P(C) No. 363/2023 & Ors Page 95 of 103

Pavitra v. Union of India, (2017) 4 SCC 620 : (2017) 2 SCC (L&S)
128] ("B.K. Pavitra").

45.
In
Suraj Bhan Meena [Suraj Bhan Meena v. State of Rajasthan
,
(2011) 1 SCC 467 : (2011) 1 SCC (L&S) 1] the question which arose
for consideration before a two-Judge Bench of this Court was
formulated thus : (SCC p. 480, para 49)
"49. The primary question which we are called upon to answer in
these five special leave petitions is whether the amended provisions
of
Article 16(4-A)
of the Constitution intended that those belonging
to the Scheduled Caste and Scheduled Tribe communities, who had
been promoted against reserved quota, would also be entitled to
consequential seniority on account of such promotions, or would the
"catch-up" rule prevail."

Answering this question, this Court held thus : (SCC p. 484, para 66)
"66. The position after the decision in
M. Nagaraj
case [
M.
Nagaraj v. Union of India
, (2006) 8 SCC 212 : (2007) 1 SCC (L&S)
1013] is that reservation of posts in promotion is dependent on the
inadequacy of representation of members of the Scheduled Castes
and Scheduled Tribes and Backward Classes and subject to the
condition of ascertaining as to whether such reservation was at all
required."

The Court held that since no exercise was carried out by the State of
Rajasthan to acquire quantifiable data regarding the inadequacy of
representation of Scheduled Castes and Tribes in public services in
the State, the High Court was justified in quashing the notifications
providing for consequential seniority and promotion.

46.
In
Panneer Selvam [S. Panneer Selvam v. State of T.N.
, (2015)
10 SCC 292 : (2016) 1 SCC (L&S) 76] the issue before a two-Judge
Bench of this Court was thus : (SCC p. 298, para 1)
"1.1. (i) In the absence of policy decision taken by the State/rules
framed pursuant to the enabling provision of
Article 16(4-A)
of the
Constitution of India, whether a reserved category candidate
promoted on the basis of reservation earlier than his senior general

W.P(C) No. 363/2023 & Ors Page 96 of 103

category candidate in the feeder category can claim consequential
seniority in the promotional post?"

Rule 12 of the sub-rules to the Tamil Nadu Highways and
Engineering Service provided as follows:

"12. Reservation of appointment.--The rule of reservation of
appointments (General Rule 22) shall apply to the appointment of
Assistant Divisional Engineers by direct recruitment and recruitment
by transfer separately and the appointment of Assistant Engineers by
direct recruitment."

Under Rule 12, reserved category Assistant and Junior Engineers had
secured promotion as Assistant Divisional Engineers earlier than their
counterparts belonging to the general category as a result of
accelerated promotion following the rule of reservation.

47. R. Banumathi, J. speaking for the two-Judge Bench held that
Rule 12 did not provide for consequential seniority to candidates
drawn from the reserved category who are granted accelerated
promotion and, in the absence of a specific provision or policy,
consequential seniority could not be granted : (
Panneer Selvam

case [
S. Panneer Selvam v. State of T.N.
, (2015) 10 SCC 292 : (2016)
1 SCC (L&S) 76] , SCC p. 308, para 26)
"26. The true legislative intent under
Article 16(4-A)
of the
Constitution is to enable the State to make provision or frame rules
giving consequential seniority for the accelerated promotion gained
based on the rule of reservation. Rule 12 evidently does not provide
for the consequential seniority for reserved category promotees at
any point of time. The consequential seniority for such reserved
category promotees can be fixed only if there is express provision for
such reserved category promotees in the State rules. In the absence
of any specific provision or policy decision taken by the State
Government for consequential seniority for reserved category
accelerated promotees, there is no question of automatic application
of
Article 16(4-A)
of the Constitution."

W.P(C) No. 363/2023 & Ors Page 97 of 103

The Court noted that the appellants who belonged to the general
category were not questioning the accelerated promotion granted to
their counterparts from the reserved category by following the rule
of reservation but were only seeking the application of the catch-up
rule in the fixation of seniority in the promotional cadre. The Court
held that in the absence of any provision of consequential seniority in
the rules, the catch-up rule will prevail : (
Panneer Selvam
case [
S.
Panneer Selvam v. State of T.N.
, (2015) 10 SCC 292 : (2016) 1 SCC
(L&S) 76] , SCC pp. 312-13, para 36)
"36. In the absence of any provision for consequential seniority in
the rules, the "catch-up rule" will be applicable and the roster-point
reserved category promotees cannot count their seniority in the
promoted category from the date of their promotion and the senior
general candidates if later reach the promotional level, general
candidates will regain their seniority.

The Division Bench appears to
have proceeded [
V. Vivekanandan v. S. Pannerselvam
, 2011 SCC
OnLine Mad 2241 : (2012) 2 Mad LJ 346] on an erroneous footing
that
Article 16(4-A)
of the Constitution of India automatically gives
the consequential seniority in addition to accelerated promotion to
the roster-point promotees and the judgment of the Division Bench
cannot be sustained."

48. The decision in
Panneer Selvam [S. Panneer Selvam v. State of
T.N.
, (2015) 10 SCC 292 : (2016) 1 SCC (L&S) 76] has since been
followed by a two-Judge Bench of this Court in
B.K. Pavitra [B.K.
Pavitra v. Union of India
, (2017) 4 SCC 620 : (2017) 2 SCC (L&S)
128] .

A.K. Goel, J. speaking for the Bench held thus : (B.K. Pavitra
case [
B.K. Pavitra v. Union of India
, (2017) 4 SCC 620 : (2017) 2
SCC (L&S) 128] , SCC p. 641, para 29)
"29.
It is clear from the above discussion in S. Panneer
Selvam v. State of T.N. [S. Panneer Selvam v. State of T.N., (2015)
10 SCC 292 : (2016) 1 SCC (L&S) 76] that exercise for determining
"inadequacy of representation", "backwardness" and "overall
efficiency", is a must for exercise of power under
Article 16(4-A).

W.P(C) No. 363/2023 & Ors Page 98 of 103

Mere fact that there is no proportionate representation in
promotional posts for the population of SCs and STs is not by itself
enough to grant consequential seniority to promotees who are
otherwise junior and thereby denying seniority to those who are
given promotion later on account of reservation policy. It is for the
State to place material on record that there was compelling necessity
for exercise of such power and decision of the State was based on
material including the study that overall efficiency is not
compromised. In the present case, no such exercise has been
undertaken. The High Court erroneously observed [
M.
Nagaraj v. Union of India
, 2010 SCC OnLine Kar 5407] that it was for
the petitioners to plead and prove that the overall efficiency was
adversely affected by giving consequential seniority to junior persons
who got promotion on account of reservation. Plea that persons
promoted at the same time were allowed to retain their seniority in
the lower cadre is untenable and ignores the fact that a senior
person may be promoted later and not at the same time on account
of roster point reservation. Depriving him of his seniority affects his
further chances of promotion. Further plea that seniority was not a
fundamental right is equally without any merit in the present context.
In absence of exercise under
Article 16(4-A)
, it is the "catch-up" rule
which fully applies. It is not necessary to go into the question
whether the Corporation concerned had adopted the rule of
consequential seniority."

67.
In
Suraj Bhan Meena [Suraj Bhan Meena v. State of Rajasthan
,
(2011) 1 SCC 467 : (2011) 1 SCC (L&S) 1] , the petitioners had
challenged a Notification dated 25-4-2008 issued by the State of
Rajasthan under the proviso to
Article 309
of the Constitution,
amending the Rajasthan "Various Service Rules" with effect from 28-
12-2012. This was challenged on the ground that the deletion
amounted to giving consequential seniority to candidates belonging
to the Scheduled Castes and Tribes without carrying out the exercise
of collecting quantifiable data.

W.P(C) No. 363/2023 & Ors Page 99 of 103

68.
In
U.P. Power Corpn. [U.P. Power Corpn. Ltd. v. Rajesh Kumar
,
(2012) 7 SCC 1 : (2012) 2 SCC (L&S) 289] , there was a specific
challenge before the High Court of Judicature at Allahabad to the
validity of Rule 8-A of the U.P. Government Servants Seniority Rules,
2007.
Section 3
of the Uttar Pradesh Public Services (Reservation for
Scheduled Castes, Scheduled Tribes and Other Backward Classes)
Act, 1994 and Rule 8-A of the 1991 Rules brought into force in 2007
were challenged as being ultra vires and unconstitutional. As a
consequence, the consequential orders relating to seniority were
impugned.

Once again, the challenge was on the ground that the
exercise which was required in pursuance of the decision of this
Court in
Nagaraj [M. Nagaraj v. Union of India
, (2006) 8 SCC 212 :

(2007) 1 SCC (L&S) 1013] had not been carried out.

69.
In
Panneer Selvam [S. Panneer Selvam v. State of T.N.
, (2015)
10 SCC 292 : (2016) 1 SCC (L&S) 76] , Rule 12 of the Special Rules
to Tamil Nadu Highways Engineering Service provided that the rule
of reservation of appointments (General Rule 22) shall apply to the
appointment of Assistant Divisional Engineers by direct recruitment
and by transfer of the appointment of Assistant Engineers. This Court
held that Rule 12 did not provide for consequential seniority and, in
the absence of a provision for consequential seniority catch-up rule
will be applicable.

The litigation in
Panneer Selvam [S. Panneer
Selvam v. State of T.N.
, (2015) 10 SCC 292 : (2016) 1 SCC (L&S) 76]
did not engage a situation such as the present where the GR dated
20-3-2003 specifically provides for consequential seniority.

70. The decision in
B.K. Pavitra [B.K. Pavitra v. Union of India
, (2017)
4 SCC 620 : (2017) 2 SCC (L&S) 128] involved a specific challenge to
the validity of the Karnataka Determination of Seniority of the
Government Servants promoted on the basis of Reservation (to the
posts in the Civil Services of the State) Act, 2002.
The Act
was struck
down by a two-Judge Bench of this Court on the ground that the
State had not undertaken an exercise to establish a "compelling
necessity" since no material had been placed by the State on record.

W.P(C) No. 363/2023 & Ors Page 100 of 103

71. All these decisions (except the decision in
Panneer Selvam [S.
Panneer Selvam v. State of T.N.
, (2015) 10 SCC 292 : (2016) 1 SCC
(L&S) 76] ) involved a specific challenge to the validity of
administrative notifications or, as the case may be, an Act of the
legislature.

Panneer Selvam [S. Panneer Selvam v. State of T.N.
,
(2015) 10 SCC 292 : (2016) 1 SCC (L&S) 76] was a case where in
the absence of a provision for consequential seniority, it was held
that the catch-up rule will prevail. In the present case, there is a
specific provision for consequential seniority in the GR dated 20-3-
2003. Absent a challenge to the GR in the proceedings which were
initiated before the Tribunal, such a challenge cannot be entertained
at this stage."

52.
In view of the fact that the Judgments
referred above
have

also been referred to at the bar as such no further discussions is

necessary in respect of the Judgments referred to by the rival

counsel in support of their contentions in respect of the issue of

reservation on promotion with consequential seniority.

53. Therefore, the consistent views both by the Apex Court as

well as by a Division Bench of this Court having held that the

State is within its liberty to grant or not to grant the benefit of

consequential seniority during promotions of reserved category

candidates, the impugned Office Memorandum dated 18.01.2023

bringing in the policy of catch-up Rule and superseding the earlier

policy of consequential seniority cannot be held to be bad in law.

54. The subsequent part of Clause 4A whereby, it is provided

that where notwithstanding the reserved quota having been met

by the reserved category candidates, if there are suitable

W.P(C) No. 363/2023 & Ors Page 101 of 103

candidates belonging to the reserved category in the zone of

consideration, then such candidates can be considered provided

these candidates did not gain the benefit of accelerated seniority

during their promotions by virtue of the Rule of reservation also

cannot be held to be incongruous. If the first part of Clause 4A is

held to be valid then the later part of Clause 4A which provides

for consideration of those reserved category candidates for

promotion if there otherwise within the zone of consideration and

they did not get the benefits of consequential seniority during

their promotion under the reservation policy is also required to be

consequentially held to be valid as it is a sequel to the policy of

the State Government of granting reservation and promotion but

without consequential seniority. No fault can be found with regard

to such policy being implemented by the State. The claim of the

petitioners that by the impugned notification, then vested right

have been sought to be taken away is also not made out and

therefore such claims are also rejected.

55. That apart the second part of Clause 4A is parameteria with

Clause 4 of the earlier Office Memorandum dated 03.08.2016 and

which provisions has already been upheld by the Division Bench

of this Court in
Ivy Gohain Dasgupta
(Supra). The Division Bench

W.P(C) No. 363/2023 & Ors Page 102 of 103

had declined to interfere with the Clause 4 of the Office

Memorandum dated 03.08.2016. This Judgment of the Division

Bench has not been subsequently assailed and therefore, the

same has attained finality.

Consequently, the findings of the

Division Bench in
Ivy Gohain Dasgupta
(Supra) are equally

binding on this Court.

56. In view of all the above discussions held, the writ petitions

fail, the prayers in the writ petitions are found to be devoid of

merit and therefore, the writ petitions are rejected. No order as to

cost.

57. Pending I.A.s are also disposed of.

JUDGE
Comparing Assistant

W.P(C) No. 363/2023 & Ors Page 103 of 103