B.K. Sharma, J.

1. The Petitioners, who are presently working as Asstt. Executive Engineers under the Respondents, are aggrieved by fixation of their seniority below the private Respondents i.e. Respondents No. 4 to 10 in the provisional Gradation List circulated under Annexure-E notification dated 17.8.2002. The Petitioners are also aggrieved by the Annexure-F Office Memorandum dated 12.3.2002, issued by the Government of Assam in the Department of Personnel on the subject of fixation of Seniority of Reserved candidates vis-a-vis general candidates in promotional posts. The basic challenge in the writ petition is the said memorandum dated 12.3.2002 following which the seniority of the Petitioners vis-a-vis the private Respondents have been assigned in the impugned provisional gradation list circulated vide the impugned Annexure-E notification dated 17.8.2002.

2. Before the impugned gradation list was issued, there was another gradation listed dated 19.5.2001 (Annexure-D) in which the Petitioners were shown senior to the private Respondents, they having occupied positions at SI. No. 91, 95, 92, 94, 96 and 93 respectively as against the seniority positions assigned to the private Respondents at SI. No. 102, 104, 105, 108, 109, 111 and 112 respectively. However, pursuant to the aforesaid impugned Annexure-F OM dated 12.3.2002, in the subsequent gradation list, published vide Annexure-E notification dated 17.8.2002, the aforesaid positions were altered and the Petitioners were placed at SI. No. 91, 95, 92, 94, 96 and 93 respectively as against placing the private Respondents at SI. No. 79, 81, 82, 85, 86, 88 and 89 respectively.

3. The impugned Annexure-F OM dated 12.3.2002 was issued consequent upon the amendment of Article 16(4)(A) of the constitution of India by the Constitution (85th) Amendment Act, 2001, by which it was provided that the State shall not be prevented 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 Scheduled Tribes, which in the opinion of the State are not adequately represented in the services under the State.

4. Following the aforesaid amendment in the Constitution, the Annexure-F OM dated 12.3.2002 was issued by the Government of Assam in the Department of Personnel laying down the criteria for fixation of seniority of reserved candidates vis-a-vis the general candidates in promotional posts. The relevant provisions of the said OM are quoted below:

Scheduled Castes/Scheduled Tribes Government servants shall on their promotion by virtue of rule of reservation/roster be entitled to consequential seniority also and the above decision shall be effective from 17th June, 1995.

On the basis of the revised seniority, consequential benefits like promotion, pay, pension etc. shall be allowed to the concerned Scheduled Castes/Scheduled Tribes Government servants (without arrears by applying principle of no work no pay). For this purpose, senior Scheduled Castes/Scheduled Tribes Government servants may be granted promotion with effect from the date of promotion of their immediate junior General/Other Backward Classes Government servants. Such promotion of Scheduled Castes/Scheduled Tribes Government servant may be given with the approval of the appointing authority of the post to which the Government servant is to be promoted at each level after following normal procedure of Departmental Selection Committee and with the approval of Assam Public Service Commission.

5. It was in the aforesaid basis, the impugned gradation list was drawn and circulated vide the impugned Annexure-E notification dated 17.8.2002, making a grievance against which the Petitioners have approached this Court by filling the instant writ petition.

6. According to the Petitioners, the policy of reservation should not be allowed to become a vested interest and that it ought to be balanced with the ot