Point of Law : Article 16 (4A) and 16 (4B) being enabling provisions, the State is at liberty to implement its policy of giving reservation in promotion with consequential seniority, at liberty to provide for reservation in promotion without consequential seniority or at liberty not to provide any reservation in promotion.

JUDGMENT :

Heard Mr. D. K. Das, learned counsel for the petitioner in WP(C)/5005/2016 and Mr. M. K. Choudhury, learned Senior Counsel for the petitioner in WP(C)/5026/2016. Also heard Mr. D. Mazumdar, learned Additional Advocate General Assam.

1. Summary of the litigation:

A. These two writ petitions, WP(C) No. 5026/2016 and WP(C) 5005/2016 are taken up together for disposal. By way of both these writ petitions, a challenge is made to the Office Memorandum dated 03.08.2016.

B. The writ petitioner in WP(C) 5005/2016 challenges the clauses (iii) and (iv) of the said Office Memorandum dated 03.08.2016, whereas the petitioner in WP(C) 5026/2016 challenges the entire Office Memorandum.

C. The basic issues involved in the writ petitions are, firstly, the procedure adopted by the State of Assam in providing reservation in promotion in services and posts for members of the Scheduled Caste and Scheduled Tribes under the offending OM and Secondly, the claim of consequential seniority along with right of promotion allegedly violated by insertion of clause (iv) in the O.M. The further issue is the alleged non-compliance of the dictum of the Hon’ble Apex Court pronounced in M.Nagraj Vs Union of India reported in (2006) 8 SCC 212 and of the decision of this court in Equality Forum Vs. State of Assam reported in 2016 1 GLT 710 (in short Equality Forum I) while issuing the Office Memorandum under Challenge.

D. As the controversy relates to provision of reservation in promotion and consequential seniority, a series of writ petitions involving individual disputes of seniority between General Category incumbents and reserved category incumbents and resultant promotion, were tagged along with these two writ petitions since the decision taken in these two writ petitions shall have a bearing on the individual issues raised in the said batch of writ petitions.

E. When this court started hearing these writ petitions, a consensus was reached amongst all the learned counsels for the parties in all the writ petitions that instead of going to the individual cases, first the two writ petitions, wherein Office Memorandum dated 03.08.2016 is under-challenge be determined. Therefore, all the learned counsels for the parties have addressed this Court on the validity of the OM dated 03.08.2016, though they are not parties in the aforesaid two writ petitions. No submissions on individual facts, merits and claims were made by the Learned Counsels. Therefore, this Court first proposes to dispose of the two writ petitions WP(C) 5005/2016 and WP(C) 5026/2016.

2. Arguments and submissions advanced by learned counsels: A. Mr. M.K. Choudhury, learned Senior counsel representing the petitioner in WP(C) 5026/2016, submits:

I. This court in Equality Forum vs. the State of Assam reported in (2016) 1 GLT 710 held that the State to give effect to the provision of The Assam Scheduled Caste and Scheduled Tribes (Reservation in Services and Posts ) Act, 1978 (as amended) would have to justify the same with the quantifiable data as mandated in Nagraj (supra) but the impugned OM dated 03.08.2016 laying down the guideline to be followed while considering promotion in any cadre in any establishment, is in total disregard of the mandate of Equality Forum (supra) and Nagraj(supra).

II. The condition precedent and requirement for the exercise of powers available under Article 16 (4A) and (4B) that the State must carry out the exercise of acquiring quantifiable data, is not followed while issuing the Office Memorandum.

III. As this Court in Equality Forum (supra) struck down the basis of reservation i.e. the recommendation of the One Man commission and resultant OM dated 29.12.2014, the State is required to carry out a fresh exercise for acquiring quantifiable data, which has not been followed and therefore, the O.M. dated 03.08.2016 is in derogation of the mandate of Nagraj (supra) and Equality Forum(supra), and therefore, liable to be struck down.

IV. The Office Memorandum dated 03.08.2016 only