Point of Law: If a reservation in promotion is given effect or implemented based upon roster point in roster scale, there is always a possibility that a reserved category candidate may be promoted against post.

ORDER :

A.M. Bujor Barua, J.

Heard Mr. KN Choudhury, learned Senior Counsel assisted by Mr. N Gautam, learned counsel for the appellant in WA No. 46/2023 and WA No. 162/2023 and Mr. MK Choudhury, learned Senior Counsel assisted by Mr. M Sarma, learned counsel for the appellant in WA No. 239/2022. Also heard Mr. DK Das, learned counsel for the respondent Bhagwan Pator, Mr. D Mozumdar, learned Additional Advocate General for the authorities in the State of the Assam and Mr. D Mahanta, learned counsel for the respondents No. 11, 12 and 13 in WA No. 163/2023.

2. The facts and circumstances leading to the present appeals flow from the Constitution Seventy Seventh Amendment introducing Article 16(4A) by which it was provided that nothing shall prevent the State from making any provisions for reservation in the matters of promotion to any class or classes of posts in the services under the State in favour of Scheduled Castes and Scheduled Tribes, which in the opinion of the State, are not adequately represented in the services under the State and the Constitution (Eighty Fifth) Amendment wherein an amendment was brought in to the Article 16 (4A) providing for reservation in the matters of promotion with consequential seniority. The Constitution Seventy Seventh Amendment to the Constitution is as per the Constitution (Seventy Seventh Amendment) Act, 1995 and the Constitution (Eighty Fifth) Amendment is as per the Constitution (Eighty Fifth Amendment) Act, 2001.

3. It has to be taken note that in the State of Assam by the Assam Act XII of 1979 i.e. the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978 (in short, the Act of 1978), as per Section 5 thereof, reservation for Scheduled Castes and Scheduled Tribes in the posts to be filled up by promotion was already statutorily provided for.

4. After the Seventy Seventh and Eighty Fifth Amendment to the Constitution, the Government of Assam through the Department of Personnel (B) had issued an Office Memorandum under the signature of the Commissioner and Secretary to the Government of Assam in the Personnel Department bearing No. ABP.59/96/163 dated 12.03.2002 providing for consequential seniority to the Scheduled Castes and Scheduled Tribes Government servants on their promotion by virtue of the rules of reservation and the Office Memorandum clearly provides that such provision was consequent upon the amendment of Article 16(4A) of the Constitution of India by the Constitution Eighty Fifth Amendment Act, 2001. In other words, it has to be understood that by virtue of Section 5 of the Act of 1978 the provisions for reservation in promotion to the reserved category candidates was already introduced in the State of Assam prior to Seventy Seventh Amendment of the Constitution, whereas by the Office Memorandum dated 12.03.2002 even the consequential seniority upon such reservation on promotion being acted upon was also provided pursuant to the Eighty Fifth Amendment of the Constitution.

5. It is also to be taken note that by the Assam Act XIX of 2012 notified by the Notification No. LGL.128/2011/40 dated 21.08.2012 and published in the Assam Gazette Extraordinary No. 383 dated 21.08.2012, Section 5A was introduced after Section 5 of the Act of 1978. Section 5A of the Act of 1978 provides for a post based roster for implementing reservation in promotion for the members of reserved category. After the amendment of the Act of 1978 by the Assam Act XIX of 2012, the Office Memorandum bearing No.TAD/BC/68/2011/Pt-1/146 dated 29.12.2014 was issued under the signature of the Principal Secretary to the Government of Assam in the WPT & BC Department.

6. The opening paragraph of the Office Memorandum dated 29.12.2014 provides that the guidelines were in order to implement the post based roster reservation in the matters of reservation of posts for Scheduled Castes and Scheduled Tribes both plains and hills, in direct recruitment and promotions.

7. Considering t