Decided on August 02,2018

Debananda Roy S/O Late Ananda Mohan Das Appellant
State Of Assam And 5 Ors Respondents


Manojit Bhuyan, J. - (1.) The appellant/writ petitioner is a Junior Assistant in the establishment of the Executive Engineer, Goalpara Division (Irrigation). He is a member of the Other Backward Community (OBC). He and respondent no. 6 were the only contenders for promotion to the vacant post of Senior Assistant in the establishment. A selection was carried out, in pursuance whereof, the respondent no. 6, being a Scheduled Tribe (Plains) candidate, was promoted to the said post. Approval was granted by the Chief Engineer, Irrigation vide order dated 29.07.2015, stating that his office has no objection to the promotion of respondent no. 6, who belongs to ST(P) category, and falls for consideration against Roster Point No. 5, earmarked for ST(P), as per the 13-Point Roster under the Assam Scheduled Castes and Scheduled Tribes (Reservation of Posts in Services) Act, 1978, (as amended in 2012) (hereinafter 'the Act'). On 31.07.2015, an Office Order of promotion was issued in favour of respondent no. 6. The aforesaid two orders dated 29.07.2015 and 31.07.2015 were assailed by the appellant in the related WP(C) 5087/2015 which, however, stood dismissed vide order under appeal dated 14.09.2017.
(2.) As in the proceedings before the learned Single Judge, even before us the appellant have urged that the impugned orders dated 29.07.2015 and 31.07.2015 are wholly illegal, being passed in utter violation of Article 14 of the Constitution of India and that of the provisions of the Assam Ministerial District Establishment Service Rules, 1967 (hereinafter 'the 1967 Rules'), particularly Rule 6 (4) thereof. Appellant submits that the respondent no. 6 being admittedly junior to him, the benefit of promotion so given to respondent no. 6 was in supersession of his rights, which marks an illegal and discriminatory action on the part of the state respondents. Further, the respondent no. 6 was initially appointed as a Khalashi and her promotion to the post of Junior Assistant on 28.01.2009 was made by giving her preference as an ST(P) candidate as per Roster Point maintained by the office under the Act. This being an undisputed position, as such, the respondent no. 6 could not have been conferred with the same reservation benefit and privilege for the second time. It is also argued that whereas the appellant would retire from service in the year 2020 on attaining the age of superannuation, the respondent no. 6 will retire only in the year 2032. Therefore, the case of the appellant ought to have been considered.
(3.) We have heard Mr. H. Das, learned counsel for the appellant as well as Dr. B. Ahmed, learned counsel representing the Irrigation Department i.e. respondent nos. 1 to 4. There is none to represent respondent no. 5 as well as the respondent no. 6, though served.;

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