M.Y.EQBAL - (1.) THE question raised by the petitioners in this writ application is whether the decision of the respondents to promote the persons to the post of Labour Superintendent, who are much junior to the petitioner, by giving the benefit of reservation in the matter of promotion, is justified.
(2.) THE petitioners have been presently working as Labour Enforcement Officers and they became entitled now for consideration for promotion to the post of Labour Superintendent. It is stated that as per the rules 50% post of Labour Superintendent is to be filled up by way of promotion and the department has already started the process of filling up of the said post from amongst the candidates, who are working as Labour Enforcement Officer. It is alleged that inspite of the clear cut directives and specific rules the respondents have decided to give promotion to such persons who arc much junior to the petitioners by gaving reservation to those candidates belonging to backward classes. It is further alleged that the name of the persons, whose name appears at serial No. 23 or onward and are general candidates have not been recommended whereas name of Junior Officers belonging to BC -I and BC -2 and SC/ST have been recommended. A counter affidavit has been filed by the respondents stating, inter alia, that 102 posts have been sanctioned for the Labour Superintendent in Labour Employment and Training Department, According to the Labour Service Rules, 1951, posts of Labour Superintendent are to be filled up by direct recruitment and 51 posts are to be filled up by appointment through promotion. It is further stated that roster has been cleared by the Personnel and Administrative Reforms Department for 39 posts for the appointment through promotions. The Personnel and Administrative Reforms Department has cleared the roster for appointment through promotion. The roster break up which is 24 posts of general category, 7 posts of OBC, 5 posts of BC I, 1 post of Scheduled Caste, 1 post of Scheduled Tribe and 1 post of Backward Woman. The respondents further case is that in the meeting of departmental promotion committee held on 22.6.2001 under the Chairmanship of Bihar Public Service Commission, the names of 39 employees were recommended for appointment through promotion on the post of Labour Superintendent, where in the name of the petitioner is at serial No, 98 in the seniority list, while the departmental promotion committee has recommended the names of employees upto serial No. 87 in the Labour Enforcement Cadre.
(3.) MR . A.K. Sinha, learned Sr. Counsel appearing for the petitioners, vehemently challenged the decision of the respondents to give reservation to the members of Backward Classes and OBC in the matter of promotion as being illegal and ultra vires to Article 16(4) of the Constitution of India. Learned counsel submitted that in no case reservation can be given tot he members of Backward Classes in the matter of promotion and till date no circular has been issued by the State Government giving reservation to the members of the Backward Classes in the matter of promotion. Learned Counsel put heavy reliance on the decision of the Supreme Court in the case of Indra Sawhney v. Union of India, AIR 1993 SC 477.;