Point of Law : Article 16(4)(A) enables State to make provision for reservation with consequential seniority.

JUDGMENT :

Heard Mr. S. Chauhan, learned counsel for the petitioner. Also heard Mr. R. Borpujari, learned standing counsel for the Finance Department, representing respondent nos.1 and 5. Also heard Mr. R. Bora, learned counsel appearing on behalf of Mr. P.N. Goswami, learned Standing counsel for the Public Health Engineering Department, representing respondent nos.2 to 4.

2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has claimed for the following reliefs:

(i) Restore the Order No.PHE/209/Estt./90/22649 dt. 18/08/1999 passed by Chief Engineer; PHE Deptt;

(ii) Set aside the order dt. PHED-227/98/41 dt. 23/11/2007 passed by the Finance Department;

(iii) Set aside the Order No.PHE-209/Estt./98 dt. 07/06/2013 and dated 08/08/2013 passed by the Chief Engineer (PHE);

(iv) Set aside the Office Order No.05 dt. 03/07/2013; order No-18 dated 26/08/2013 passed by the Addl. Chief Engineer (PHE), Barak Valley Zone.

(v) Issue writ of Mandamus directing the respondents to refund the recovered amount Rs.3,71,358/-;

(vi) Direct the respondents not to recovered Rs.3,71,358/- for gratuity and leave encashment benefits of the petitioner;

(vii) Direct the respondents to give benefits of equalization of pay to the petitioner as given to Smt. Lily Hrangkhal by virtue of judgment dt. 20/04/2015 passed in WP(C) 597/2008 and by order dt. 25/07/2017 of Finance Department, order dt. 03/08/2017 by the PHE Department and/or pass such other order(s) as Your Lordships may deem fit and proper.

3. The case of the petitioner is that he belongs to Scheduled Tribes (Plain) community. He was temporarily appointed as Work Charged Mohorrir under Mangaldoi Public Health Engineering (PHE for short) Division vide order dated 29.09.1981, issued by the Executive Engineer (PHE), Mangaldoi Division, and his service was extended from time to time. Thereafter, by an order dated 05.03.1986, issued by the Chief Public Health Engineer, Assam, the petitioner was appointed as Lower Division Assistant (LDA for short) on regular basis and posted in the office of the Assistant Executive Engineer, PHE, Tangla Subdivision, District Darrang. Thereafter, by an order dated 12.09.1990, issued by the Superintending Engineer, PHE, he was promoted to the post of Upper Division Assistant and posted in the office of the Additional Chief Engineer, PHE, Hills Zone, Haflong where he joined on 23.10.1990.

4. It is projected by the petitioner that one Jiban Chandra Nath, who was general category candidate, was appointed as a Typist in the establishment of the PHE Department. However, in the year 1981, the post of Typist and the post of LDA were amalgamated and re-designated as Typist-cum-LDA, and on 30.03.1998, he was promoted from the post of LDA to the post of UDA. Likewise, one Smt. Lily Hrangkhal, who belonged to Scheduled Tribes (Hills), was promoted to the post of UDA on 05.09.1991. Thus, as the petitioner had joined as UDA on 23.10.1990 on promotion, the petitioner and Smt. Lily Hrangkhal were both senior to the said Jiban Chandra Nath, who was drawing higher scale of pay due to long service in the feeder post of Typist-cum-LDA and as on 01.03.1998, after considering increments, his salary was fixed at Rs.6,075/-.

5. It is projected that by virtue of 77th amendment to the Constitution of India, the Government was empowered to make provisions for reservation in promotion vide Article 16 (4A). Thereafter, by 82nd amendment to the Constitution of India, Article 335 was amended. Thereafter, by 85th amendment to the Constitution of India, Article 16(4A) was amended. Accordingly, the Government was empowered to make provisions for reservation in matters of promotion, with consequential seniority.

6. Subsequently, by an order dated 18.08.1999, equalization of pay at par with Jiban Chandra Nath, as well as consequential seniority was given to the petitioner