SHANKAR PRASAD NANDI Vs. STATE OF ASSAM

JUDGEMENT

(1.) THE petitioners, who belong to general category, by the present writ petitions have challenged the legality and validity of the gradation list dated 02. 07. 2002 issued by the Commissioner and Secretary to the Govt. of Assam wherein the names of the petitioners are placed below the Respondent Nos. 4 to 12 in Writ Petition (C) No. 4739/02 and Respondent Nos. 3 to 11 in W. P. (C) No. 4740/02 (hereinafter referred to as private Respondents), who belong to the reserved category. The other respondents i. e. Respondent Nos. 13 to 54 in W. P. (C) No. 4739/02 and Respondent Nos. 12 to 45 in W. P. (C) No. 4740/02, who have been impleaded on the basis of the applications filed by them, are not concerned in the mater of fixation of inter se seniority of the petitioners and the aforesaid respondents, as they were recruited in the batch earlier to the petitioners and the petitioners do not claim any relief against them.

(2.) BOTH the writ petitioners and the private respondents were directly recruited to the Assam Civil Service (hereinafter referred to as "acs") Class-I service on the basis of the recommendation of the Assam Public Service Commission in the year 1983, under the provisions of the Assam Civil Services (Class-I) Rules, 1960 (in short 'the 1960 Rules' ). The petitioners belong to the general category and the private respondents are of reserved category. Pursuant to the provision contained in Rule 25 of the 1960 Rules for promotion to ACS Senior Grade, a select list was prepared by the Selection Committee constituted for the purpose on 29. 05. 89 wherein the names of the writ petitioners as well as the private respondents appeared. In the said select list names of the writ petitioners appeared at Serial Nos. 55 to 62, 64 to 71, 73 to 77, 79 to 82, 87 to 95 and 97 and that of the private respondents at Serial Nos 72, 86, 98 to 103 and 105. Since the said respondents belong to reserved category, as per roster they were promoted to ACS Senior Grade on 01. 08. 1989, except the Respondent No. 4 in W. P. (C) No. 4739/2002, who was promoted to the said Grade on 03. 06. 1998. The petitioners were promoted to the said Grade on different dates in the years 1991-1992. Thereafter a draft gradation list showing inter se seniority position of all Officers of ACS Class-I as on 01. 01. 1993 was published by the Department of Personnel, Government of Assam, wherein the names of the petitioners were placed at Serial Nos. 188 to 203, 205 to 209, 211 to 214, 219 to 227 and 229 and that of the private respondents at Serial Nos. 204, 218, 230 to 235 and 237. Being aggrieved by the placement in the said gradation list, the private respondents filed representations and the authority thereafter on 02. 07. 2002 published the final gradation list placing the names of the said respondents at Serial Nos. 47 to 55 and that of the petitioners at Serial Nos. 56 to 76, 78 to 81, 85 to 93 and 95. Before publication of the final gradation list an office memorandum dated 12. 03. 2002 was issued by the Commissioner and secretary to the Government of Assam, Personnel Department laying down guidelines for fixation of seniority of the reserved vis-a-vis the general category candidates in the promotional posts stipulating that the reserved category candidates shall be, on their promotion by virtue of rule of reservation/roster, be entitled to consequential seniority also, consequent upon Constitution (Eighty fifth Amendment) Act, 2001 whereby Article 16 (4) (A) has been inserted. However, the said office memorandum regarding entitlement to the consequential seniority by the reserved category candidates on their promotion by virtue of the rule of reservation/roster has been given effect to from 17th June, 1995. The petitioners, therefore, are challenging the said final gradation list dated 02. 07. 2002 whereby the private respondents, who belong to reserved category, are placed above them, on the ground that the same is contrary to the seniority rules prescribed in 1960 Rules.

(3.) I have heard Mr. P. K. Goswami and Mr. A. M. Majumdar, learned Senior Counsel appearing on behalf of the petitioners and Mr. D. K. Mishra, learned Senior Counsel appearing for the private respondents in W. P. (C) No. 4739/02, Mr. M. Sarania, learned counsel appearing on behalf of the private respondents in W. P. (C) No. 4740/02 as well as Mr. A. K. Thakur, learned Govt. Advocate appearing on behalf of the State Respondents in both the writ petitions. None appears on behalf of other respondents.