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W .P .(C)No.43/ 2012 P age 8 of 19

19. Respondent Nos. 4, 5 and 6 have filed a common affidavit. Stand taken by the said respondents is that the writ petition is hit by delay and laches. Respondent Nos. 4, 5 and 6 were promoted to the post of Assistant Executive Engineer by order dated 09-09-2005 pursuant to the recommendation of the DPC dated 07-12-2004. Petitioner Nos. 1 and 2 were so promoted on 18-01-2007 whereas petitioner No.3 was promoted on 15-02-2007. Petitioners have filed the writ petition only on 03-12-2011. This long delay has not been properly explained. Further, petitioner Nos. 2 and 3 were placed in Category-III in the selection and, as such they were not found suitable for promotion. Petitioner Nos. 2 and 3, therefore, cannot challenge the promotion of respondent Nos. 4, 5 and 6. Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978 provides for reservation to members of Scheduled Castes and Scheduled Tribes in matters of promotion on the basis of a 20 point roster which is a running account. The said Act also provides for carry over of backlog vacancies to be filled up at the time of next consideration. Under the Assam Engineering (Irrigation Department) Service Rules, 1978, cadre-wise gradation list is to be prepared each year. Since respondent Nos. 4, 5 and 6 were promoted to the cadre of Assistant Executive Engineer ahead of the petitioners, they have been rightly placed above the petitioners in the gradation list of Assistant Executive Engineer. It is contended that respondents 4, 5 and 6 had the eligibility for promotion as per the said Rules. On the date of selection, there were 12 backlog vacancies in the cadre of Assistant Executive Engineer for the reserved categories, 5 for ST (P), 3 for ST (H) and 4 for SC. Being reserved category candidates, respondent Nos. 4, 5 and 6 were entitled to consideration for promotion against the backlog W .P .(C)No.43/ 2012 P age 9 of 19 vacancies. Regarding clubbing of vacancies, the said respondents have stated that the correctness of the contention of the petitioners can only be verified from the original record. Respondent Nos. 4, 5 and 6 have also placed reliance on an office memorandum issued by the State Government on 12-03-2002 following the Constitution (85th) Amendment Act, 2001 granting consequential seniority to the reserved category candidates on their promotion. They have also stated that in the gradation list of Assistant Executive Engineer (Mechanical) dated 10-01-2007, which has been annexed to the writ petition, out of the 41 Assistant Executive Engineer (Mechanical), only respondent Nos. 4, 5 and 6 belong to the reserved category which clearly shows that the reserved category candidates are not adequately represented in the cadre of Assistant Executive Engineer (Mechanical).

21. Mr. S.K. Goswami, learned Counsel for the petitioners submits that the Assam Engineering (Irrigation Department) Service Rules, 1978 does not contain any provision for reservation to backward classes in promotion. However, under the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978, there is provision for reservation to backward classes in matters of promotion. He, however, submits that under Article 16 (4A) of the Constitution, there is no vested right to claim promotion on the strength of reservation. It is an enabling provision for the State to provide for reservation in matters of promotion with consequential seniority in favour of the Scheduled Castes and Scheduled Tribes which in the opinion of the State are not adequately represented in the services under the State. Learned Counsel would therefore contend, referring to the judgment of the Hon'ble Supreme Court in M. Nagaraj (supra), that if the State wants to make reservation for Scheduled Caste and Scheduled Tribe candidates in matters of promotion, it could do so only after collecting quantifiable data touching backwardness of such category of candidates and inadequacy of representation of such category in public employment. Since the State has admitted that such an exercise was not carried out before W .P .(C)No.43/ 2012 P age 11 of 19 promoting respondent Nos. 4, 5 and 6, such promotion should be interfered with by this Court. He further submits that since the State has admitted clubbing of vacancies which resulted in consideration of 7 vacancies for the year 2004 as against 5 vacancies by the DPC resulting in illegal enlargement of the zone of consideration because of which respondent Nos. 4, 5 and 6 came within the zone of consideration, the DPC proceedings dated 07-12-2004 should be set aside, being illegal. He has referred to a judgment of the Hon'ble Supreme Court in the case of Vijay Singh Charak -Vs- Union of India and others reported in (2007) 9 SCC 743 to contend that clubbing of vacancies of several years is illegal. Learned Counsel for the petitioners contend that since the seniority of respondent Nos. 4, 5 and 6 over the petitioners in the post of Assistant Executive Engineer is because of the illegal recommendation of the DPC, the anomaly should be rectified by restoring the seniority position of the petitioners over the said respondents. In any case, respondent Nos. 4, 5 and 6 having secured accelerated promotion on the strength of reservation, they cannot claim accelerated seniority over the petitioners in the promoted post after the petitioners got promotion. Learned Counsel for the petitioners has placed reliance on a number of judgments in addition to the above judgments including, 1992 Supp. (3) SCC 217 (Indra Sawhney -Vs- Union of India), (2011) 1 SCC 467 (Suraj Bhan Meena -Vs- State of Rajasthan) and (2012) 7 SCC 1 (UP Power Corporation Limited -Vs- Rajesh Kumar).

22. Dr. Ahmed, learned Standing Counsel, Irrigation Department submits that Irrigation Department has admitted that there was a mistake in considering 7 vacancies by the DPC for the year W .P .(C)No.43/ 2012 P age 12 of 19 2004 which resulted in an enlarged zone of consideration bringing within its fold respondent Nos. 4, 5 and 6. Had this clubbing of vacancies not taken place, respondent Nos. 4, 5 and 6 would not have come within the zone of consideration. Contending that it was a bonafide mistake, learned Standing Counsel submits that without entering into the other contentious aspects raised by the petitioners, the Court may confine its adjudication to the immediate issue of clubbing of vacancies. He further submits that because of the admitted position, petitioners may be given consequential seniority by way of notional benefit without disturbing the promotion of respondent Nos.4, 5 and 6.

34. It is also true that there is delay in challenging the decision of the DPC dated 07-12-2004 recommending promotion of respondent Nos. 4, 5 and 6 and their consequential promotion dated 09-09-2005.

35. Ordinarily, in such a situation, the Court would have refrained from interfering with the recommendations of the DPC dated 07-12-2004. However, as already noticed in the earlier part of this judgment, respondent No.1 has admitted on affidavit that as against 5 vacancies for the year 2004, DPC considered 7 vacancies for the said W .P .(C)No.43/ 2012 P age 18 of 19 year. In addition to the above, Dr. B. Ahmed, learned Standing Counsel, Irrigation Department made a categorical statement before the Court in the course of his argument that without interfering with the promotion of respondent Nos. 4, 5 and 6 and without entering into other contentious issues like catch up rule after accelerated promotion etc, petitioners may be given consequential seniority by way of notional benefit.