BINOD KUMAR AGARWALA Vs. STATE OF ASSAM

JUDGEMENT

(1.) Three writ petitioners belonging to general category and holding the post of Deputy Registrar under the Co-operation Department have approached this Court by this writ petition challenging the legality and validity of order dated 07/11/2007 (Annexure-E to the writ petition) whereby Private Respondent Nos. 5 & 6 were given promotion to the rank of Joint Registrar superseding the claim of the present petitioners. The present petitioners entered into the service under the Cooperation Department as Assistant Registrar of Co-operative Societies in the year 1992 pursuant to the selection of the APSC. Subsequently in the year 1998 they were promoted on regular basis to the rank of Deputy Registrar. In the gradation list of the Deputy Registrars the name of petitioners No. 1, 2 and 3 occurred at Sl. No. 39, 40 and 42 respectively. The Private Respondent Nos. 5 & 6 were also Deputy Registrar and their name occurred in Sl. Nos. 47 & 48 respectively in the said gradation list. Private respondent No. 5 is a member of the Schedule Cast Community whereas respondent No. 6 is a member of Schedule Tribe (Plains) Community.

(2.) The Secretary to the Government of Assam by the impugned notification allowed the said two juniors of the petitioners to be promoted to the rank of Joint Registrar on the ground that they belong to reserved categories and the petitioners are general category candidates.

(3.) By filing this writ petition the petitioners have challenged this decision of the Government stating that the cadre of Joint Registrar consists of 7 posts only. The question of reservation for Schedule Cast and ST (P), therefore, to the extent of 7% and 10% respectively cannot arise under such circumstances; the reason being 7 percent of 7 posts will come to 0.49 whereas 10 percent of the 7 posts will become 0.70. All these figures being less than an integer it is not possible to exceed the said limit so as to make it one for giving the benefit of promotion. Drawing my attention to the judgment of the Hon'ble Supreme Court in the case of R.S. Garg vs. Union of India, 2006 6 SCC 430Mr. U.K. Nair, learned counsel for the petitioner submits that in paragraph 34 of the said judgment the Hon'ble Supreme Court has held that in no case the question of percentage in the concerned statute can be raised by the authority at the time of promotion or appointment. In that case 21 percent of the post was reserved for schedule cast and the authority wanted to give promotion to two candidates which were in excess of 21 percent.