Gauhati High Court
Anil Kumar Jalan & 3 Ors vs The State Of Assam And 7 Ors on 22 September, 2017
Author: Nelson Sailo
Bench: Nelson Sailo
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Writ Petition (C) No.452 of 2014
1.Sri Anil Kumar Jalan
Son of Pushkar Dutta Jalan
Resident of Flat No.4C
Protechview, Hengrabari Road,
PO Dispur, Guwahati
Assam -781006
2.Smti Varshaty Das
Wife of Sri Gautam Baishya
Tomaskar Apartment
Silpukhuri,Guwahati
Assam -781003
3.Sri Santanu Dhar
Son of Late Santi Ranjan Dhar
Resident of House No.19
Harbala Road, Ulubari
Kamrup(M), Guwahati
Assam -781007
4. Sri Subrata Chakraborthy
Son of Late S.K.Chakraborty
Resident of Swahid Dilip Hujuri
Road, Sarumataria,
Guwahati, Kamrup(M)
Assam
Petitioners.
-Versus-
The State of Assam
Represented by the Chief Secretary
To the Govt. of Assam, Department
Of Finance, Dispur, Assam & 9 Ors.
Page 1 of 11
....... Respondents.
BEFORE THE HON'BLE MR. JUSTICE NELSON SAILO For the Petitioner : Mr. MK Choudhury, Sr.Advocate.
For the Respondents : Mr. R Dubey, Standing Counsel,
Finance Department
Mr. DK Das, Advocate
Mr. UK Nair, Sr. Advocate
Date of Hearing : 30.03.2017
Date of Judgment : 22.09.2017
JUDGMENT AND ORDER (CAV)
Heard Mr. MK Choudhury, the learned senior counsel for the petitioner assisted by Mr. A Hassan for the petitioners. Also heard Mr. R Dubey, the learned Standing Counsel for the Finance Department. Mr. DK Das, the learned counsel appears for the private respondent Nos.5 to 9 and Mr. UK Nair the learned senior counsel appears for respondent Nos. 9 and 10.
2. The case of the writ petitioners in brief is that they joined as Superintendent of Taxes on being appointed to the post vide order dated 13.08.1993 (Annexure-A). By the same order, respondent No.5, 7 and 8 were also appointed. The next promotional post from Superintendent of Taxes is to the post of Assistant Commissioner of Taxes. The private WP (C) No. 452 of 2014 Page 2 of 11 respondents though junior to the petitioners were promoted to the post of Assistant Commissioner of Taxes. The respondent Nos. 9, 10, 5 and 6 were promoted on 01.01.2009 (Annexure-B), the respondent No.7 on 15.11.2010 (Annexure-C) and the respondent No.8 on 05.05.2011 (Annexure-D).
3. The respondent authorities vide notification under Memo No.FTX.106/99/199 dated 17.03.2011 published a provisional gradation list of Assistant Commissioner of Taxes for the year 2010 inviting objections if any, to be submitted within a period of 15 days. Thereafter upon not receiving objections, the provisional gradation list was finalised and published vide Notification dated 10.05.2011 (Annexure-E) wherein, the names of most of the private respondents were shown above the 1992 batch of Assistant Commissioners except the respondent No.7.
4. That, the petitioners were subsequently promoted to the post Assistant Commissioner of Taxes vide order dated 20.07.2013 (Annexure- G) after serving for about 21 years as Superintendent of Taxes. They were promoted after filing repeated representations and as per the direction of this Court vide order dated 10.10.2012 passed in WP (C) No. 3932 of 2012.
5. The next promotional post from the post of Assistant Commissioner of Taxes in terms of the Assam Taxation Service Rules, 1995 (Service Rules of 1995) is to the post of Deputy Commissioner of Taxes. The petitioners upon coming to learn that promotion process were being initiated filed a representation on 03.09.2013 (Annexure-H) before the Additional Chief Secretary to the Government of Assam, Finance WP (C) No. 452 of 2014 Page 3 of 11 Department praying for correction of the gradation list of the petitioners as Assistant Commissioners of Taxes by placing them above the reserved category of promotion including the private respondents who were promoted during the year 2008-2011. However, the representation has remained unconsidered since then.
6. The State respondents vide notification dated 21.08.2012 (Annexure-1) notified the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) (Amendment) Act, 2012 (Amendment Act of 2012) providing for certain amendment to the principal Act including the introduction of Schedule-1 and Schedule-2 for model 100 point roster and model post based roster for cadre having number of 13 posts or less than 13 respectively. The Amendment Act of 2012 according to the petitioners do not specify guidelines or directives of the Apex Court through various decision such as M Nagraj & Ors. -vs- Union of India & Ors. (2006) 8 SCC 212, Suraj Bhan Mina & Anr. -vs- State of Rajasthan & Ors (2011) 1 SCC 467 and Uttar Pradesh Power Corporation (2012) 7 SCC 1 amongst others and therefore, the same is invalid and ultra vires in law. However, in pursuance to the provision of Clause (xi) and Section 5A of the Amendment Act of 2012, the Department of Finance vide Notification 08.03.2013 (Annexure-J) and Notification dated 13.03.2013 (Annexure-K) published post-based roster showing various position in the post of Deputy Commissioner and Assistant Commissioner of Taxes respectively. According to the petitioners, from the Notification issued on 13.03.2013, it is clear that in the cadre of Assistant Commissioner of Taxes, there are 25 posts and the Department has prepared the roster list wherein the names of the private respondents appeared above the General category officers who are otherwise senior to WP (C) No. 452 of 2014 Page 4 of 11 the private respondents. The private respondents are mostly 1993 batch appointees except for respondent No.6 who is of 1997 batch and therefore, he is junior to the petitioners. The petitioners thus being aggrieved are before this Court through the instant writ petition.
7. The prayer of the petitioners was initially for quashing the promotion orders of the private respondents dated 01.01.2009, 15.11.2010 and 05.05.2010. However, Mr. MK Choudhury, the learned senior counsel for the writ petitioners submit that the petitioners do not wish to press the said prayer and instead confine their prayer in directing the State respondents to fix the seniority of the petitioners in the gradation list of Assistant Commissioner of Taxes for promotion to the post of Deputy Commissioner of Taxes and to conduct the selection process for promotion by yearwise vacancy without clubbing together the vacancies in one year.
8. Mr. MK Choudhury further submits that it has been held in the case of M Nagraj & Ors. (supra) as well as Uttar Pradesh Power Corporation Ltd. (supra) that if the State Government wants to apply reservation in promotion, it has to collect the quantifiable data showing the backwardness of class and inadequacy of representation in addition to compliance with Article 335 of the Constitution of India. The State respondents without acquiring the quantifiable data have simply come up with the Amendment Act of 2012 which under the given facts and circumstances is only illegal and impermissible and therefore, Court should suitably interfere by directing the State respondents to appropriately fix the seniority of the petitioners in the gradation list of Assistant Commissioner of Taxes.
WP (C) No. 452 of 2014 Page 5 of 118. In response to the writ petition, the respondent No.4 i.e. the Secretary to the Government of Assam, Legislative Department has filed an affidavit-in-opposition on 31.03.2014 wherein it has been contended that the Amendment Act of 2012 has been made as per the enabling provision of Article 16(4), 16(4-A) and 16(4-B) of the Constitution of India. The State Government in fact has duly considered the criteria of backwardness, inadequacy of representation and relevant datas in preparing the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978. In fact, the Amendment Act of 2012 has been enacted pursuant to the decision of the Apex Court in the case of R.K Sabharwal & Ors. Vs. State of Punjab & Ors. (1995)2 SCC
745. The amendment is only in compliance to the interpretation made by the Apex Court for making vacancy based reservation as post based reservation. Therefore, the Amendment Act of 2012 was fully justified.
9. With regard to acquiring quantifiable data for inadequacy of representation of SC and ST communities in public services, backwardness of the community and efficiency in administration, no fresh exercise was required as no change in ratio of percentage of reservation is made by the new Act but every establishment before implementing the Act are required to make an exercise of the quantum of representation of SC and ST communities and to what extent it has been implementing the reservation policy and what still remains before preparing the post-based roster register and make entry into the list whenever any change occur due to recruitment and promotion and the procedural guidelines are included in Section 5A (ii) to (xii) of the amending Act. Thus, it is contended that the Act was prepared within the purview of Article- 16(4), 16(4-B) read with Article 335 and Article 46 of the Constitution of India.
WP (C) No. 452 of 2014 Page 6 of 1110. The private respondent Nos.5, 6, 7 and 8 have also filed their affidavit-in-opposition wherein it has been contended that except for the respondent No.6 they too were appointed as Superintendent of Taxes by the same notification dated 13.08.1993 in which the petitioners were appointed. As for the respondent No.6, he was appointed on 03.02.1997. The respondent Nos.9 and 10 were appointed much earlier to all the private respondents i.e. on 25.05.1992.
11. From the post of Superintendent of Taxes, the respondent No.6 was promoted to the rank of Assistant Commissioner of Taxes on 01.01.2009, the respondent No.7 on 15.11.2010 and the respondent No.8 on 05.05.2011 whereas the Amendment Act of 2012 only came into force w.e.f. 27.05.2013. In terms of the non-obstante clause contained in Section 14, all the actions taken under the Act prior to amendment are deemed to be validly done under the corresponding provisions of the Amendment Act of 2012. Furthermore, the private respondents have cleared the training and departmental examination much earlier to the petitioners and as such they were confirmed in service and considered for promotion much earlier. The private respondents have also contended that the provisional gradation list of Assistant Commissioner of Taxes was published vide notification dated 17.03.2011 inviting objections to be submitted within a period of 15 days. However, as no objection was filed, the same was finalized vide notification dated 10.05.2011. Therefore the attempt of the petitioners to raise objections against the gradation list at this stage is only hit by delay and estoppel.
WP (C) No. 452 of 2014 Page 7 of 1112. The private respondents have also contended that in compliance with the decision of the Apex Court in the case of M Nagraj & Ors. (supra) as well as U.P Power Corporation Ltd. (supra), the State Government had constituted a one-man commission appointing Sri Harish Sonowal. IAS retired who studied and acquired the 'quantifiable data' with regard to backwardness of Scheduled Castes and Scheduled Tribes and their inadequacy in representation in Government services. On 08.12.2014, the respondent No.3 issued a circular informing all the Departments that the report of the one-man commission has been accepted by the State Government. As a result, office memorandum dated 29.12.2014 was issued wherein guidelines have been prescribed for implementation of the post based roster reservation in matter of reservation of posts for Scheduled Castes and Scheduled Tribes in direct recruitment and promotion. Clause-2 of the said office memorandum deals with the operation of roster and Clause-2.7 therein enumerates that the post-based roster shall operate on the principle of replacement and not as a running account. Clause-3.1 to 3.4 on the other hand lays down the procedure to be followed in the case of SC/ST candidates being appointed on merit. It was thus contended that the petitioners cannot have any grievance against the private respondents under the facts and circumstances.
13. Against the affidavit-in-opposition of the private respondent Nos.5 to 8, the petitioners have filed their affidavit-in-reply contending inter alia that since the respondents concerned were only promoted on officiating basis by invoking Regulation 4(d) of the Assam Public Service Commission (Limitation of Functions) Regulation, 1951, the same did not create any vested right upon them especially upon considering the prescribed limitation of one year under the said provision. Non-following of WP (C) No. 452 of 2014 Page 8 of 11 post based reservation policy in promotion as enunciated in R.K. Sabharwal's case (supra) was also reiterated. The private respondent Nos.5, 6, 7 & 8 have also filed an additional affidavit to bring on record their respective confirmation order in the post of Superintendent of Taxes.
14. I have heard the learned counsels appearing for the rival parties and I have also perused the materials available on record. The question that is to be decided from the case projected by the petitioners is whether the State respondents are justified in promoting the private respondents before the petitioners ignoring their seniority in the lower post of Superintendent of Taxes. Secondly, whether the gradation list of Assistant Commissioner of Taxes finalized on 10.05.2011 is liable to be refixed/redone and thirdly, whether vacancies in the post of Deputy Commissioner of Taxes should be filled up by yearwise vacancy.
15. Neither the Finance (Taxation) Department nor the Personnel (B) Department have filed their response in the matter except for the Legislative Department i.e., respondent No.4 and the private respondent Nos.5 to 8. It may also be noticed that the representation of the petitioners dated 03.09.2013 (Annexure-H) has also not been considered and disposed.
16. The private respondents in their affidavit-in-opposition have stated that the State Government in compliance with the decision of the Apex Court in the case of M Nagraj (supra) as well as Uttar Pradesh Power Corporation Ltd. (supra) had constituted one-man commission appointing Harish Sonowal , Retd. IAS to study and acquire the quantifiable data with regard to backwardness of Scheduled Case and Scheduled Tribes and their WP (C) No. 452 of 2014 Page 9 of 11 inadequacy in representation in the Government services. The matter was examined by this Court in the case of Equality Forum & anr. -vs- The State of Assam & ors reported in 2016 (1) GLT 710, wherein it was held that the exercise carried out by the one-man commission does not fulfill the mandate laid down in the case of Nagraj(supra) and thereby vitiating the cabinet memorandum which was prepared upon acceptance of the one-man commission report by the State Government. This Court held that the backwardness of Schedule Caste and Schedule Tribes vis-à-vis promotion would have to be determined cadre wise and based on the quantifiable data which is a continuous process and cannot be a one-time exercise. Hence, it was held that the one-man commission do not fulfill the mandate laid down in Nagraj case.
17. Pursuant to the decision rendered in the case of Equality Forum & ors.(supra), the State Government in the Department of Welfare of the Plains, Tribes and backward class have come up with an office memorandum dated 3.8.2016 wherein the review of Government policy of reservation in promotion with reference to High Court's Judgments have been contemplated. The same have been brought to the notice of this Court although not formally by way of filing an affidavit. Therefore, considering the fact that the representation of the petitioners dated 13.9.2013 (Annexure-H) filed before the Additional Chief Secretary to the Government of Assam, Finance Department has not been considered and disposed and taking into account the developments that has taken place pursuant to the decision rendered in the case of Equality Forum(supra), I am of the considered view that the grievance of the petitioner as set out in their representation should be considered by the said authority.
WP (C) No. 452 of 2014 Page 10 of 1118. In that view of the matter, the Additional Chief Secretary to the Government of Assam, Finance Department is directed to consider the representation of the petitioners and thereafter dispose of the same by a speaking order within a period of 2(two) months from the date of receipt of a certified copy of this order. Until the disposal of the representation as directed, the interim order passed in the case shall continue.
19. The writ petition stands disposed of.
JUDGE Nivedita WP (C) No. 452 of 2014 Page 11 of 11