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(a) The petitioner, Shri Ajay Chandra Bordoloi, is presently holding the post of Chief Engineer. In the writ petition filed, the petitioner challenges the entitlement of the Respondent No. 4, one Sri M.C. Boro, also a Chief Engineer, to promotion to the post of the Secretary in the department and the position of the aforesaid Respondent No. 4 at Sl. No. 1 of the Seniority List of Chief Engineers dated 4.11.2006.

(b) According to the petitioner in a Select List dated 7.5.2003, prepared for promotion to the post of Superintending Engineer, the petitioner was placed at Sl. No. 3 and the Respondent No. 4 at Sl. No. 35. Both of them were promoted to the post of Superintending Engineer on 7.5.2003; the Respondent No. 4 was so promoted against a backlog vacancy for ST (P) Candidates to which Category the said Respondent belongs. In the inter se Seniority List of Superintending Engineers published on 22.5.2003, the name of the petitioner appeared at Sl. No. 25 and that of the Respondent No. 4 at Sl. No. 26. According to the petitioner, in the Select List dated 19.12.2003 prepared for promotion to the post of Additional Chief Engineers, the name of the petitioner appeared at Sl. No. 7 and that of the Respondent No. 4 against Sl. No. 24. Both of them were promoted to the rank of Additional Chief Engineer on the same date, i.e., 26.12.2003. Yet, in the Seniority List of Additional Chief Engineers published on 22.1.2004, the name of the petitioner appeared at Sl. No. 9 whereas the name of the Respondent No. 4 appeared at Sl. No. 5. The petitioner submitted a representation dated 27.1.2004 against the seniority assigned, notwithstanding which a selection for promotion to the post of Chief Engineer was held on 28.1.2004. In the Select List published on 30.1.2004, the name of the Respondent No. 4 appeared at Sl. No. 5, and thereafter, the said Respondent was promoted to the post of Chief Engineer on 19.6.2004. The petitioner's name not being included in the Select List dated 30.1.2004, he was so promoted on 23.6.2006 on the basis of a subsequent selection. According to the petitioner, though in the seniority list of Chief Engineers published on 16.2.2006, the name of the Respondent No. 4 was included against Sl. No. 6, yet in the Revised Seniority List of Chief Engineers published on 4.11.2006, the name of the said Respondent is virtually at Sl. No. I, the two other persons above him, having retired in the meantime. In these circumstances, the petitioner has questioned the placement of the Respondent No. 4 at Sl. No. 26 of the Seniority List of Superintending Engineers dated 22.5.2003 and the position of the said Respondent at Sl. No. 5, i.e. above the petitioner in the Seniority List of Additional Chief Engineers dated 22.1.2004; the selection and promotion of the said Respondent to the higher post of Chief Engineer and the consequential seniority assigned to him in the cadre of Chief Engineer. The short ground on which the aforesaid challenge has been made appears to be that if the petitioner was placed above the Respondent No. 4 in the Select List dated 19.12.2003 for promotion to the post of Additional Chief Engineer and if both the petitioner and the Respondent No. 4 were promoted to the post of Additional Chief Engineer on the same date, i.e., 16.12.2003, how could the Respondent No. 4 be placed above the petitioner in the Select List of Additional Chief Engineers dated 22.1.2004 so as to make the said Respondent eligible for consideration to the higher post of Chief Engineer. Alternatively, it has been argued by the learned Counsel for the petitioner that if the challenge made in the writ petition is to be understood by the Court to be belated, thereby, disentitling the petitioner to an adjudication on merits, the petitioner being a Chief Engineer as on date, his name should also be included in the Seniority List of Chief Engineers published on 4.11.2006 so as to make the petitioner also eligible for consideration for promotion to the post of Secretary in accordance with the principle of merit-cum-seniority prescribed by the Rules.

(b) The respondent No. 6 in the affidavit filed has contended that his promotion to the post of Superintending Engineer made on 7.5.2003; to the post of Additional Chief Engineer made on 26.12.2003 and to the post of Chief Engineer made on 19.6.2004 have been against backlog vacancies earmarked for ST (P) candidates. On account of the said fact i.e. promotion being against a backlog vacancy his seniority at serial No. 6 in the seniority list of Chief Engineers dated 16.2.2006 was wrongly assigned. The respondent No. 6, therefore, had filed a representation claiming promotion to the post of Chief Engineer on the basis of the select list dated 30.1.2004 against the first available vacancy, in accordance with the provisions of the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978 (hereinafter referred to as the Reservation Act). The representation of the respondent No. 6 was duly considered by the W.P.T. & B.C. Department as well as by the Personnel Department and the grievances made and the claims raised therein having been found to be genuine, seniority of Chief Engineers was revised by the impugned notification dated 4.11.2006.

(c) In the two cases under consideration the State respondents have filed separate affidavits taking a more or less similar stand. The records indicating the manner in which the decision to revise the seniority was arrived at has also been placed before the Court at the hearing.

The stand of the official respondents, as discernible from the affidavit filed and the records produced, appears to be that after the select list dated 30.1.2004 for promotion to the post of Chief Engineer was finalized, promotions could not be made because of the pendency of W.P. (C) No. 134/2004 wherein the promotions of the writ petitioners as well as the respondent No. 6 to the feeder post of Additional Chief Engineer was under challenge. One of the persons selected i.e. Sri B. M. Goswami retired on 31.1.2004 without getting the benefit of his selection i.e., promotion. The said person, after his retirement, filed a representation seeking notional promotion to the post of Chief Engineer with effect from 30.1.2004. The matter was examined by the Personnel Department which took the view that notional promotion to Sri Goswami should be granted for a period of two days i.e. 30.1.2004 and 31.1.2004 and that such notional promotion should also be given to one Shri M. Pathak who was placed at serial No. 1 of the select list and was actually promoted by the later order dated 19.6.2004. Consequently, a notification dated 11.9.2006 was issued giving notional promotion to Shri B.M. Goswami in the rank of Chief Engineer for the period 30.1.2004 to 31.1.2004 and to Shri M. Pathak for the period 30.1.2004 to 19.6.2004 (date of his actual promotion). The matter, however, did not rest at that. For reasons that need not detain the Court, the W.P.T. & B.C. Department, thereafter, intervened in the matter and took the stand that out of the three vacancies for which the selection was held and the select list dated 30.1.2004 was prepared, one vacancy was a backlog vacancy in respect of ST (P) candidates. As the respondent No. 6, who is a ST (P) candidate, was included in the select dated 30.1.2004 the promotion of the said respondent No. 6, under the provisions of the Reservation Act, should have been made against the first available vacancy. Consequently, the view was taken by the WPT & BC Department that the respondent No. 6 was also entitled to notional promotion as in the case of Shri Goswami and Shri Pathak and therefore he would be entitled to seniority above the petitioners and others in the select list dated 30.1.2004. Consequently, the earlier seniority list dated 16.2.2006 was held to be erroneous and required revision by placing the respondent No. 6 at serial No. 3 (effectively serial No. 1) and the petitioners at serial Nos. 4 and 5 respectively. The above view was concurred by the Personnel Department whereafter the notification dated 4.11.2006 was issued.

26. No law has been enacted by the State laying down that in the event a reserved category candidate is appointed against a backlog vacancy along with other candidates by the same Govt. order, such reserved category candidate will be entitled to seniority over the other candidates appointed along with him. Clause-V of the Schedule to the Reservation Act, on which much reliance has been placed, does not contain such a prescription. It merely contemplates appointment of a reserved category candidate against a backlog vacancy by treating such backlog vacancy to be the first vacancy of the year. No inference of any intent to confer seniority to the reserved category candidates in such a situation can be made by the Court, as the learned State counsels would like the Court to do, particularly when the legislative intent expressed in the service Rules in force as well as the statutory Rules i.e., Reservation Rules points to a contrary intention. The aforesaid Rules having contemplated and visualized determination of inter se seniority according the merit position appearing in the select list, a contrary legislative intention must have find expressed manifestation in the statute book to enable the Court to take the view that a reserved category candidate appointed on the same day and by the same order but against the first deemed vacancy can be understood to be senior to the others appointed along with him. Article 16-4A being a mere enabling provision, it is open to the State to continue with a law providing for determination of seniority by application of the normal Rule i.e. merit position, in the absence of the requisite quantitative data that could justify a departure. In the present case the State having continued the existing Rules to the above effect, the Court must hold that the seniority of the Chief Engineers as determined on 16.2.2006 has been incorrectly revised by the subsequent seniority list dated 4.11.2006. Consequently, the seniority list dated 4.11.2006 is set aside and the earlier seniority list dated 16.2.2006 is directed to be restored.