High Court
Case Details
WP(C) 3560/2006 BEFORE HON’BLE MR. JUSTICE A. K. GOSWAMI
Legal Reasoning
Heard Mr. BD Goswami, learned counsel for the petitioner. On 07.08.2013, the State counsel submitted that for proper adjudication of the d ispute, an affidavit-in-opposition on behalf of the Government was necessary and accordingly, he had prayed for 3 (three) weeks’ time to file the counter-affida vit. Today there is no representation on behalf of the State respondents. Mr. BD Goswami has submitted that the state respondents have not filed any affid avit. As it is, 7 (seven) years have gone by and the state had chosen not to file any counter-affidavit. Despite the aforesaid state of affairs, on the request of the learned Government Advocate, 3 (three) weeks time was granted to file affidavit . However, the state did not avail the opportunity granted for filing the counte r-affidavit. In these circumstances, this Court considers it appropriate to dispose of the ca se on the basis of materials on record. Mr. BD Goswami, learned counsel for the petitioner submits that the whole case o f the petitioner is set out in paragraph 5 of the writ petition and in absence o f any rebuttal thereof, the petitioner is entitled to be promoted w.e.f. 02.02.2 006 as Assistant Director, Handloom and Textile, to which post he was promoted o n 12.01.2007 during the pendency of the writ proceedings. Paragraph 5 of the writ petition is quoted herein below:- (cid:28)That the petitioner begs to state that all together 4 posts of Assistant Direct or were shown to have fallen vacant in the Respondent Directorate by the end of 2005 which included 2 backlog vacancies/reserved for Scheduled Castes and 1 each reserved for ST (Plains) and ST (Hills). It may be stated that at the relevant time there were 2 backlog SC vacancies viz; the Roster point 32 and Roster point 43 reserved for Scheduled Castes under the reservation laws i.e. as per provisi ons laid out in the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978. To fill up the aforesaid 4 posts cha racter rolls, service records etc. were called for from all eligible candidates in the feeder cadre of superintendent including that of the petitioner reportedl y on the basis of 4:1 ratio. A Selection Committee (DPC) was constituted which i n due course prepared a select list that included the name of the petitioner in the zone of consideration. Thereafter the respondent authority finally promoted the following incumbents to the cadre of Asstt. Director, Handloom and Textiles vide Notification No. HTS. 343/97/96 dtd. 2/2/2006 issued under the signature of Commissioner & Secretary to the Govt. of Assam, Handloom, Textiles and Sericult ure Department. Name Category Sl. No. In Gradation list 1. 2. 3. 4. Sri Deepak Deb Gen 23 Sri Giren Sarkar SC 26 Sri Ranjit Deka ST(P) 27 Sri Kantaram Rahang ST(H) 29 But it is seen that the competent authority while selecting the above noted incu mbents for promotion filled up only the Roster point 32 reserved for SC candidat es with one Sri Giren Sarkar while filling up the other 3 posts with General, ST (P) and ST (H) candidates respectively. However, in the process Roster point 4 3 remained unfilled even as another post of Assistant Director (retired vacancy) fell vacant by end February, 2006. But surprisingly the petitioner was neither promoted to either of the 2 SC Backlog vacancies or to the latest vacancy that h as fallen vacant. On the other hand a person junior to him in seniority viz. Sri Kantaram Rahang has also been promoted over-riding the petitioner. It may be stated that the aforesaid incumbents have in the meantime joined in th eir promoted posts of Assistant Director being promoted vide order under said no tification dtd. 02.02.2006. A copy of the aforesaid order of the competent authority issued vide not ification dtd. 02.02.2006 promoting and allowing the aforesaid four incumbents t o officiate as Assistant Director, Handloom and Textiles under Regulation 4 (d) of APSC (L&F) Regulation 1951 is annexed here as Annexure-C (cid:29). Mr. Goswami submits that categorical assertion is made in paragraph 5 that 2 (tw o) posts out of 4 (four) posts of Assistant Director which had been shown to hav e fallen vacant by the end of 2005 included 2 (two) backlog vacancies reserved f or Scheduled Caste Community. The petitioner being a member of the Scheduled Cas te Community, should have been promoted alongwith respondent No. 7, namely, Shri Giren Sarkar, who is also a member of the Scheduled Caste community and whose p osition in the gradation list is at Sl. No. 26. It is submitted by him that the name of the petitioner is reflected at Sl. No. 2 8 of the gradation list. It is also submitted by him that Kantaram Rahang (Respondent No. 9), an ST (H) c ategory person, whose position in the gradation list was 29 and thus junior to t he petitioner, was promoted. In these circumstances, the learned counsel submits that the petitioner ought be promoted w.e.f. 02.02.2006.
Decision
A perusal of paragraph 5 of the writ application indicates that the two backlog Scheduled Caste Community vacancies, which the petitioner claims were available by the end of the year 2005, was at Roster Point No. 32 and 43, reserved for Sch eduled Caste Community. Though it is indicated that another post of Assistant Director fell vacant by Fe bruary, 2006 due to retirement, Roster point of that vacancy has not been identi fied. From a perusal of the averments made in the writ application including par agraph 5 it does not appear to the Court that a challenge had been made that the respondent No. 9, who belongs to Scheduled Tribe (H) category, was accommodated in Roster point No. 43 meant for Scheduled Caste candidate. Rather, it is state d that Roster point No. 43 remained unfilled. If the Roster point No. 43 remaine d unfilled, there must have been 5 (five) vacancies as 4 (four) persons were pro moted. In view of the nature of the pleadings, a clear-cut picture does not emerge as t o whether the respondent No. 9 encroached upon a post reserved for Scheduled Cas te category candidates or whether there were vacancies more than 4 (four). State authorities cannot take premium and gain advantage by not filing affidavit -in-opposition. If it is really the case that the respondent No. 9 was accommoda ted in a vacancy meant for a Scheduled Caste category candidate depriving the pe titioner, the promotion of the respondent No. 9 may have been liable to be inter fered with. Although there is no rebuttal by the state respondents in respect of the averments made in the petition, even assuming the statements made by the wr it petitioner to be correct, having regard to the pleading as it exists, it may not be correct to draw a conclusion that the respondent No. 9 was promoted in a vacancy earmarked for Scheduled Caste candidate which, otherwise, would have bee n available for the writ petitioner. However, the case of the petitioner cannot be brushed aside and questions raised by him need to be answered. In the facts and circumstances of this case, in absence of an affidavit-in-oppos ition by the state respondents disclosing the true and correct picture, in order to secure justice to the petitioner, it is considered appropriate to direct the Commissioner and Secretary to the Handloom, Textile and Sericulture Department to determine in which Roster point the respondent No. 9 was promoted and whethe r it is correct as contended by the petitioner that at the end of year 2005, two vacancies were available for the Scheduled Caste candidates. He will also deter mine whether Roster point No. 43 remained unfilled. If there were 2 (two) vacancies meant for Scheduled Caste candidates, the logica l conclusion would be that the petitioner was denied promotion in the year 200 6, when the promotion order was issued in respect of respondent Nos. 6 to 9. In that event, having regard to the fact that already 7 (seven) years have gone by, without interfering with the promotion order of the respondent No. 9, t he Commissioner and Secretary, Handloom, Textile and Sericulture Department will pass necessary orders granting benefit of promotion to the petitioner w.e.f. 02 .02.2006. This exercise shall be completed within a period of 2 (two) months from the date of receipt of a certified copy of this order. The petitioner will be at liberty to submit a certified copy of this order along with a copy of the writ petition to the Commissioner and Secretary, Handloom, Te xtile and Sericulture Department for his doing the needful in terms of the order . If no orders are passed within a period of 2 (two) months from the date of rec eipt of the certified copy of this order, the petitioner will be at liberty to a pproach this Court again. Writ petition stands disposed of in terms of the above. No costs.