Heard learned counsel for the petitioner and the State.

2. At the relevant time petitioner served as Assistant Engineer in the Public Health Engineering Department of the State Government. He filed this writ petition questioning the validity of notification of the State Government dated 5.7.2005, Annexure-3 whereunder 11 Assistant Engineers have been promoted as Executive Engineer on the ground that Kishori Lal Baitha and Suresh Prasad Soor, respondent nos.6, 7 were granted such promotion contrary to the reservation roster point fixed by the Government under letter no.458 dated 30.09.2002 pursuant to Article 16(4-A) of the Constitution inserted under Constitution (85th Amendment) Act, 2001 and the corresponding amendment made in the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Schedules Tribes and other Backward Classes) Act, 1991 vide Amending Bihar Act 17 of 2002.

3. It is submitted by the counsel for the petitioner that notification issued by the Government providing for reservation in promotion for the Scheduled Castes/ Tribes under resolution of the Government bearing no.213 dated 7.6.2002 was issued without undertaking any exercise to objectively collect quantifiable data showing backwardness inadequacy of representation of the members of the Scheduled Castes/ Tribes in the Engineering Services of the State keeping in view the efficiency of the Engineering Services, as is required under Articles 16(4-A), 335 of the Constitution. Appreciating such aspect of the matter this Court in the case of Arun Prasad Vs. The State of Bihar & Ors., reported in 2011(3) PLJR 764 quashed subsequent instruction of the State Government dated 5.2.2008 issued reiterating the contents of the resolution dated 7.6.2002. Learned counsel for the petitioner further submitted that even without going into the correctness or otherwise of the resolution dated 7.6.2002 and letter dated 5.2.2008 promotion granted to the private respondents is bad as they have been promoted against vacancy, which was meant for unreserved members of the service.

4. From the counter affidavit filed in the matter it appears that the impugned notification was issued in the light of the reservation policy of the Government contained in letter no.117 dated 30.09.1995 which was issued after insertion of Article 16(4-A) of the Constitution w.e.f. 17.6.1995 enabling the State to make provision for reservation in the matters of promotion with consequential seniority to the members of Scheduled Castes/ Tribes/ member of the service, provided in the opinion of the State Scheduled Castes/Tribes are not adequately represented in the service under the State. In the instant case, nothing has been placed on record by way of counter affidavit that before applying the new reservation policy in terms of Article 16(4-A) of the Constitution the Government ever applied its mind to the question that the members of Scheduled Castes/ Tribes are not adequately represented in the Engineering Services of the State. The State Government without undertaking any exercise to objectively collect the quantifiable data showing backwardness, inadequacy of representation of the members of SC/ST in the Engineering Services proceeded to implement the new reservation policy. Such aspect of the matter has already been considered by the High Court in the case of Arun Prasad (supra) and the instruction of the State Government dated 5.2.2008 reiterating the contents of resolution of the Government bearing no.213 dated 7.6.2002 has already been quashed . Even otherwise promotion granted to respondent nos.6 and 7 is contrary to the reservation point as they have been promoted against unreserved vacancy contrary to the roster point fixed by the Government in terms of the new reservation policy under letter no.458 dated 30.9.2002, Annexure-6 against vacancy which was meant for unreserved member of service which cannot be sustained. Earlier authorities considered promotion of 47 members