B.K. Sharma, J.

1. All the writ petitions pertaining to the same issue, i.e. the promotion and seniority in the post of Addl. Chief Engineer in the Water Resources Department, Government of Assam, have been heard together and are being disposed of by this common judgment and order.

2. At the very outset, upon hearing the learned Counsel for the parties, although it was pointed that all the cases are governed by the earlier decisions of this Court reported in 2007 (4) GLT 587: Khaninder Nath Choudhury v. State of Assam and Ors. and 2010 (3) GLT 377: Bhogeswari Saikia v. State of Assam and Ors., it was argued by the contesting counsel that their being distinctive features involved in the writ petitions, it is possible to take a different view of the matter.

3. The brief leading to the filing of the writ petitions are as follows:

W.P.(C) No. 3773/2010

4. The four writ petitions involved in this writ petition are aggrieved by the recommendation of the selection committee dated 20.05.2010 recommending the Respondent No. 4 and 5 for promotion to the post of Addl. Chief Engineer. The cadre strength of the Addl. Chief Engineer is 7(seven) and the promotion to the said cadre is governed by the Rules called the Assam Engineering (Flood Control Department) Services Rules, 1981. In the seniority list of feeder cadre published on 11.03.2010, the names of the Petitioners appeared at serial No. 4, 5, 6, and 7 and that of the Respondent Nos. 4 and 5 at serial Nos. 14 and 15 respectively. As per the provisions of the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978 and the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Rules, 1983, there is reservation for reserved category candidates both for direct recruitment and promotion to the extent as follows:

i) Scheduled Castes - 7%

ii) Scheduled Tribes (P) - 10%

iii) Scheduled Tribes (H) - 5%

5. Based on the aforesaid percentage of reservation, the Petitioners have calculated the number of posts that can be reserved for reserved category candidates in the cadre of Addl. Chief Engineer comprising of 7 posts, which are as follows:

i) Scheduled Castes - 7% -0.49

ii) Scheduled Tribes (P)- 10% - 0.7

iii) Scheduled Tribes (H)- 5% - 0.35

6. On the basis of the aforesaid calculations, the Petitioners have contended that there can be No. reservation for any category inasmuch as in case of providing reservation in the cadre of Addl. Chief Engineer comprising of 7 posts, same would exceed the percentage of reservation earmarked in the aforesaid Act and Rules.

7. The Petitioners have also placed reliance on the Annexure-3 office memorandum dated 14.07.2004 on the subject of implementation of the aforesaid Act and the Rules for filling up backlog vacancies for Scheduled Castes and Scheduled Tribes thereof in which the fact of noticing of carrying forward the backlog as well as the current vacancies even to the extent beyond the permissible entitled quota for Scheduled Tribes (P), Scheduled Tribes (H) and Scheduled Castes which have shown exaggerated figures for reserved categories, was conveyed. By the said office memorandum, the appointing authorities were requested to carry out a review for correct assessment of backlog/current vacancies in respect of said reserved category candidates both for direct recruitment and promotion.

8. By Annexure-4 representation dated 26.05.2010 made by the Assam Engineering Services Association to the Chief Secretary of the State bringing on records the aforesaid facts, it was contended that No. candidates belonging to reserved categories is entitled to be considered for promotion on the basis of the reservation as the percentage of reservation did not permit them to be so considered.

W.P.(C) No. 4137/2010

9. This writ petition has also been filed by the four writ Petitioners involved in the first writ petition. In this writ petition, they have challenged the Annexure-4 select list dated 12.07