Back
2016 Supreme(Gau) 587
GAUHATI HIGH COURT
Ujjal Bhuyan, J.
Bishnu Momin & Ors. - Appellant
Versus
Assam Public Service Commission & Ors. - Respondent
WP(C) No.1329 of 2012
Decided On : 22-02-2016
For the Respondents:C. Baruah, L.P. Sarma and R. Thakuria, Advocates.
Headnote:
Assam Public Service Commission Ministerial Staff Service Rules, 2004 - Rule 5 (1) - Petitioners are working as Junior Administrative Assistant - They were promoted to the post of JAA - By filing this petition, petitioners seek quashing of promotion order of respondent Nos.7 to 14 from Junior Administrative Assistant (JAA) to Senior Administrative Assistant (SAA) and further seeks a direction to the respondents to promote them to the post of Junior Administrative Assistant against roster points earmarked for reserved category candidates by applying the principle of reservation - Held, In the light of the findings given by this Court in Equality Forum (supra), Court is of the view that no positive direction can be issued to the respondents to consider promotion of the petitioners on the basis of reservation - However, notwithstanding the above, if the respondents want to give effect to the provisions of the Reservation Act to consider the claim of the petitioners for promotion to the cadre of SAA on the basis of reservation, they would have to justify the same with the help of quantifiable data identifying and measuring backwardness and inadequacy of representation of the said reserved categories in the promotional cadre in the context of the service where the cadre is placed keeping in mind the efficiency of service - However, no mandamus can be issued to the respondents to carry out such an exercise - Additionally, it may be pointed out that since there is no challenge to the promotion on the basis of reservation or to the non-recommendation for promotion, Court would refrain from expressing any opinion in this regard - Petition dismissed.
Heard Mr. M. Sarania, learned counsel for the petitioners and Mr. C. Baruah, learned Standing Counsel, Assam Public Service Commission (APSC). Also heard Mr. R. Thakuria, learned counsel for respondent Nos.7 to 14.
2. By filing this petition under Article 226 of the Constitution of India, petitioners seek quashing of promotion order dated 03.03.2012 of respondent Nos.7 to 14 from Junior Administrative Assistant (JAA) to Senior Administrative Assistant (SAA) and further seeks a direction to the respondents to promote them to the post of Junior Administrative Assistant against roster points earmarked for reserved category candidates by applying the principle of reservation.
3. Petitioners belong to reserved categories. Petitioner No.1 belongs to Scheduled Tribe (Hills) [ST(H)]. Petitioner No.2 belongs to Scheduled Tribe (Plains) [ST(P)] and petitioner No.3 belongs to Scheduled Caste [SC]. It is stated that petitioner No.1 entered service of the Assam Public Service Commission on 08.05.1997 as Lower Division Assistant, which post has now been re-designated as Junior Administrative Assistant (JAA). Petitioner Nos.2 and 3 were initially appointed as Typist on 31.08.1991. Thereafter, they were promoted to the post of JAA, on 16.09.2005 and on 24.02.2003, respectively. Since then, petitioners are working as Junior Administrative Assistant (JAA) in the APSC.
4. According to the petitioners, as per Rule 5 (1) of the Assam Public Service Commission (Non-Gazetted) Ministerial Staff Service Rules, 2004, the post of Upper Division Assistant, since redesignated as Senior Administrative Assistant (SAA), is a promotional post. The eligibility requirement for such promotion is 4 (four) years of service in the rank of JAA. Thus, JAA is the feeder cadre for the promotional cadre of SAA.
5. All the petitioners have rendered more than 4 (four) years of qualifying service as JAA. Therefore, they have attained the eligibility for such promotion to SAA. Cadre strength of SAA is 35. The Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978, (hereinafter, referred to as "1978 Reservation Act", in short), as amended, and the Rules framed thereunder provide for reservation to SC, ST(P) ad ST(H), both in direct recruitment as well as in promotion. The percentage of reservation earmarked for the said categories is as follows:-
ST(P)-10.00%
ST(H)-5.00%
SC-7%.
6. According to the petitioners, having regard to the cadre strength of 35 and considering the percentage of reservation, there should be 4 roster points for the ST(P), 2 roster points for ST (H) and 4 roster points for SC, i.e., 10 in total in the cadre of SAA. But against this, there are only 5 (five) reserved category employees in the cadre of SAA, who are as follows:-
(1) Sri S L Kakati (SC)
(2) Smt Shusama Das (SC)
(3) Sri Sarat Chandra Boro [ST(P)]
(4) Sri A C Deuri [ST(P)]
(5) Smt Champawati Pator [ST(H)]
7. On 03.03.2012, respondent No.2, i.e., Secretary, APSC, issued an order promoting 9 (nine) JAAs including respondent Nos.7 to 14 to the post of SAA. Out of these, only one belongs to ST(P) and the remaining 8 (eight) do not belong to either of the 3 (three) reserved categories with which the present writ petition is concerned. Respondent Nos.7 to 14 belong to unreserved (UR) category.
8. It is the contention of the petitioners that when there were 5 (five) backlog vacancies for the aforesaid reserved categories in the cadre of SAA, recommending only one ST(P) candidate for promotion was not at all justified. Petitioners being reserved category candidates were entitled to a consideration for promotion against the quota earmarked for the reserved categories. In this connection, a representation was submitted before respondent No.2 on 05.03.2012. As no remedial steps were taken on the basis of such representation, present writ petition has been filed seeking the reliefs as indicated above.
9. Respondent Nos.1, 2 and 6 (APSC) have filed a common
