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GAUHATI HIGH COURT
Ujjal Bhuyan, J.
Rakesh Agarwala - Petitioner
Versus
State of Assam and Ors. - Respondents
WP (C) No. 3581 of 2015
Decided On : 31-03-2016
For the Petitioner:Dr. Ashok Saraf, Sr. Advocate, Mr. U.K. Nair, Mr. A. Goyal, Mr. P. Baruah, Mr. Z. Islam and Mr. P. Das, Advocates.
For the Respondent:Mr. S. Saikia, SC, Finance (Taxation) Department, Mr. D.K. Das and Mr. H. Betala, Advocates.
Headnote:
Constitution of India,1950 - Articles 226, 16 (4) , 16 (4-A) , 16(4-B) and 335 - Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978 - Section 5 and 5 (a) - Amendment Act of 2012 - Seeks quashing of notification - Seeks a direction to consider case of petitioner - Petition under Article of Constitution of India, petitioner seeks quashing of notification issued by Commissioner and Secretary to Government of Finance Taxation Department, laying down post-based Roster in cadre of Joint Commissioner of Taxes under Finance Taxation Department and further seeks a direction to consider case of petitioner and other eligible candidates in cadre of Deputy Commissioner of Taxes for promotion to cadre of Joint Commissioner of Taxes without applying principle of reservation – Held, State has made provision for reservation in promotion by enacting the 1978 Act was amended in year 2012, implementation of the same would depend on acquiring of quantifiable data with regard to the compelling reasons, which exercise has to be carried out cadre-wise in the context of the service where the cadre is placed. That having not been done, the report of the One-Man Commission would be of no legal consequence and would not enable the State to give effect to the provisions of the 1978 Act as amended in so far reservation in promotion is concerned - Cost of repetition, it is reiterated that if the State desires to give effect Repetition it is reiterated that if State desires to give effect to provisions of Act as amended in year by providing for reservation in promotion, it would have to justify same with help of quantifiable data to show presence of two compelling reasons, backwardness and inadequacy of representation, cadre-wise in context of service where cadre is placed, which would then have to be harmonised with efficiency in administration as mandated under Promotion from Commissioner of Taxes to Joint Commissioner of Taxes shall be carried out on basis of recruitment rules in force without any additional weightage of reservation as provided under Reservation Act, as amended - Petition is allowed
Ujjal Bhuyan, J.
By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of notification dated 08.03.2013, issued by the Commissioner and Secretary to the Government of Assam, Finance (Taxation) Department, laying down post-based Roster in the cadre of Joint Commissioner of Taxes under Finance (Taxation) Department and further seeks a direction to consider the case of the petitioner and other eligible candidates in the cadre of Deputy Commissioner of Taxes for promotion to the cadre of Joint Commissioner of Taxes without applying the principle of reservation.
2. Case of the petitioner is that he is serving as Deputy Commissioner of Taxes in the Finance (Taxation) Department, Government of Assam. In the gradation list of Deputy Commissioner of Taxes, petitioner's position is at Serial No. 2. Position of respondent No. 4 is at Serial No. 6. Be it stated that petitioner belongs to the general category, whereas, respondent no. 4 belongs to Scheduled Tribes (Plains) [ST (P)] category.
3. As per the rules governing recruitment, post of Joint Commissioner of Taxes is higher than the post of Deputy Commissioner of Taxes and the higher post is filled up by way of promotion from the feeder cadre of Deputy Commissioner. Cadre strength of Deputy Commissioner is 15, whereas, that of Joint Commissioner is 5. It appears that both petitioner and respondent No. 4 have claimed eligibility for promotion to Joint Commissioner of Taxes. By the impugned notification dated 08.03.2013, a 14 point roster has been prepared for the cadre of Joint Commissioner of Taxes, in which roster points 1, 2, 3 and 4 are earmarked for unreserved category. The 5th roster point is earmarked for ST (P) category. Roster points 6 and 7 are earmarked for unreserved category. Roster point 8 is reserved for Scheduled Castes (SC) category. Thereafter, roster points 9 to 13 are earmarked for unreserved category followed by roster point 14, which is earmarked for Scheduled Tribe (Hills) [ST (H)].
4. According to the petitioner, 2 (two) vacancies in the cadre of Joint Commissioner of Taxes are available to be filled up by way of promotion. The Officer at Serial No. 1 in the gradation list of Deputy Commissioner belongs to ST (H). Apprehension is expressed by the petitioner that by applying the principle of reservation the second vacancy may also be filled up by respondent No. 4 superseding the petitioner. In this connection, petitioner had submitted a representation dated 18.11.2014 before the Principal Secretary to the Government of Assam, Finance Department, contending that in a cadre of 5 (five), there cannot be any reservation having regard to the percentage of reservation provided by the Statute. The said authority was requested to consider the case of the petitioner for promotion to the cadre of Joint Commissioner of Taxes without applying the principle of reservation. However, there was no response to the said representation. Aggrieved, present writ petition has been filed.
5. Contention of the petitioner is that under The Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978 (hereinafter, referred to as the "Reservation Act"), specific percentage of reservation is provided to the 3 (three) reserved categories as under :-
| Scheduled Caste (SC) | 7% |
| Scheduled Tribe (Plains) [ST (P)] | 10% |
| Scheduled Tribe (Hills) [ST (H)] | 5% |
| Total | 22% |
5.1. It is contended that having regard to the above percentage statutorily prescribed, there cannot be any reservation for either of the 3 (three) reserved categories in the cadre of Joint Commissioner of Taxes having cadre strength of 5. Notification dated 08.03.2013 has been assailed on the ground that it goes beyond the percentage of reservation statutorily prescribed; there cannot be 14 point roster in a cadr
