SUKANTA SAHA Vs. STATE OF ASSAM

JUDGEMENT

(1.) A brief survey of the facts-situations before adverting to the legal controversies may be recorded thus:-

(2.) The respondents by filing counter affidavit have resisted the claim of the petitioner contending, inter alia, that no employee has the right to promotion and that there is no legal embargo against considering a reserved candidate for promotion against an unreserved vacancy. Further contention of the respondents is that when the draft seniority list of Co-operative Officers was published, the petitioner, who had been placed below the third respondent, did not raise any objection and consequently, the law of acquiescence precludes him from raising objection to that seniority list after such a long lapse of time. As regards the claim of the petitioner for restorati on of his seniority on his promotion to the grade of Co-operative Officer, the respondents contended that following the amendment of Article 16 (4 A) of the Constitution by Eighty fifth Amendment the first respondent has issued a notification on 27.1.2005 (Annexure R/4) providing that SC/ST Govt. servants shall, on their promotion, by virtue of rule of reservation/roster and subject to relevant rules regulating seniority be entitled to consequential seniority also and that notification has been given retrospective effect from 17.6.1995. Thus, according to therespondents, the effect of Ajit Singh (II) (supra) having been wiped out by the above notification, issued on the strength of Article 16 (4A) of the Constitution, as amended by Eighty Fifth Amendment Act, 2001, the petitioner's claim of restoration of seniority is [misplaced, devoid of any merit and so, deserves no consideration.

(3.) I have heard Mr. S. Deb, learned senior counsel, assisted by Mr. S. Choudhury, Jearned counsel for the petitioner, Mr. UB Saha, learned senior Govt. Advocate, assisted by Mr. J. Majumdar, learned counsel for the first and second respondents and Mr. S. Talapatra, learned senior counsel, assisted by Mr. B. Banerjee, learned counsel for the private respondent.