Remanded

Dilip Das v. the State of Assam and 3 Ors.

Gauhati HC26 Apr 2022WP(C)/4092/2021

Case brief

AI extract

What is this about?

The High Court held that the lower authority erred in applying the 4% reservation to the total cadre strength. The court ordered that reservation must be calculated separately for posts filled via direct recruitment and promotion, directing the respondent to pass a reasoned order determining vacant promotion posts before assessing the petitioner's claim.

What did the court decide?

Writ petition allowed; matter remanded to the Additional Chief Secretary to pass a reasoned order distinguishing posts filled by direct recruitment and promotion.

Dilip Das Vs the State of Assam and 3 Ors. — Pension and Retirement Benefits | Gauhati HC (2022)

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Page No.# 1/6

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GAHC010123142021

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/4092/2021

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DILIP DAS S/O JAGADISH CHANDRA DAS, R/O HATIGAON L.N.B. PATH DISPUR, GUWAHATI 781038

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VERSUS

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THE STATE OF ASSAM AND 3 ORS REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM, SOCIAL WELFARE DEPTT., DISPUR, GUWAHATI 781006

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2:DIRECTOR OF SOCIAL WELFARE ASSAM

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UZAN BAZAR GUWAHATI 781001 3:COMMISSIONER AND SECY. (FINANCE) DISPUR GUWAHATI 06 4:ADDITIONAL CHIEF SECY. TO THE GOVT. OF ASSAM PERSONNEL (B) DEPTT. DISPUR GUWAHATI 0

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Advocate for the Petitioner : MR. S K GOSWAMI

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Advocate for the Respondent : GA, ASSAM

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Page No.# 2/6

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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JUDGMENT & ORDER (ORAL)

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Date: 26/04/2022

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Heard Mr. SK Goswami, learned counsel for the petitioner. Also heard Mr. TC Chutia, learned Additional Senior Government Advocate, Assam for the Social Welfare Department and the Personnel (B) Department of the Government of Assam respectively as well as Mr. P Nayak, learned counsel for the respondent No.3 being the authorities in the Finance Department, Government of Assam.

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The petitioner who is presently serving as an Statistical Assistant in the Social Welfare Department and is also issued a certificate of physical disability under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, the Disabilities Act of 1995) is claiming promotion under the law of reservation for persons with disabilities. The petitioner instituted WP(C)No.7912/2015 which was given a final consideration by the judgment dated 24.06.2019. By the said judgment, by referring to the propositions of law laid down by the Supreme Court in Union of India & Another Vs. National Federation of Blind & Others reported in (2013) 10 SCC 772, a conclusion was arrived that even in respect of promotions, the law of reservation under the Disabilities Act of 1995 as well as the Rights of Persons with Disabilities Act, 2016 (for short, the Disabilities Act of 2016) would be applicable. Accordingly a direction was issued that the writ petition itself be construed to be a representation requiring the Additional Chief Secretary to the

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Government of Assam in the Personnel (B) Department to pass a reasoned order on the claim of the petitioner for promotion under the Disabilities Act of 1995 and the Disabilities Act of 2016 by invoking the law of reservation for persons with disabilities. Consequent thereof, the order dated 17.10.2019 had been passed by the Additional Chief Secretary to the Government of Assam in the Social Welfare Department.

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Being aggrieved by the said order of 17.10.2019, this writ petition has been instituted.

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In the order impugned dated 17.10.2019, a conclusion was arrived that the total cadre strength of CDPO and Allied Cadre to which the petitioner is claiming promotion is 292. Accordingly, by applying the law of reservation for the persons with disabilities which is 4%, a conclusion was arrived that 4% of 292 being 12, 12 posts in the cadre of CDPO and Allied Cadre would be available for being filled up by persons with disabilities. A further conclusion was arrived that as 12 posts in the cadre of CDPO and Allied Cadre had already been filled up by persons with disabilities, therefore, no further scope remains for the petitioner to be promoted under the law of reservation for persons with disabilities.

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We have examined the analogy and the reasoning in the order impugned dated 17.09.2019. In the said order a straight jacket formula has been adopted that 4% of 292 would be 12 and 12 posts had already been filled up by persons with disabilities, therefore, there is no requirement to promote the petitioner by invoking the law of reservation against the 4% posts reserved for persons with

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disabilities. We are in disagreement with the said method adopted. The mandate of the judgment of this Court dated 24.06.2019 in WP(C)No.7912/2015 is to give a consideration to the writ petitioner for being promoted from the cadre of Statistical Assistant to the cadre of CDPO and Allied Cadre.

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We understand that out of the total cadre strength of 292 in the cadre of CDPO and Allied Cadre, the recruitment can be made both under the method of direct recruitment as well as under the method of promotion. Therefore, it was incumbent upon the authorities concerned to first come to a conclusion as to out of the total cadre strength of 292 how many posts would be filled up by direct recruitment and on the other hand, how many posts would be filled up by promotion from the feeder cadre to the cadre of CDPO and Allied Cadre. Upon arriving at such calculations, as to how many posts would be filled up by promotion, the further requirement would be that out of the number of posts to be filled up by promotion, how many posts would be filled up by promotion from the feeder cadre of Statistical Assistant and how many posts would be filled up from the other equivalent cadres.

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Once the aforesaid factual evaluation is made, the law of reservation would have to be made applicable i.e. 4% of the posts to be filled up by direct recruitment and 4% of the post to be filled up by promotion and again subdivide it into 4% from the feeder cadre of Statistical Assistant or from any other cadre. Upon applying the said principle, once the number of posts to be filled up by promotion from the cadre of Statistical Assistant by applying the law of reservation for persons with disabilities is arrived at, a further assessment is to be made as to how many persons had already been promoted from the cadre of

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Statistical Assistant by applying the law of reservation for persons with disabilities and if it is found that the required number of posts to be filled up in the said manner had already been filled up by applying the law of reservation for persons with disabilities, a reasoned order may be passed accordingly.

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If, on the other hand, the calculations reveal that the number of posts to be filled up by promotion from the cadre of Statistical Assistant by persons with disabilities by applying the law of reservation is yet to filled up, the respondent authorities shall consider the petitioner for such promotion along with the other similarly situated eligible candidates for the purpose.

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In view of the above, we interfere with the order dated 17.10.2019 and remand the matter back to the Additional Chief Secretary to the Government of Assam in the Social Welfare Department or any other appropriate authority as may be decided by the Governmental authorities to pass a reasoned order as indicated above.

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We take note that the law of reservation is a horizontal reservation and not a vertical reservation and from such point of view, it is made clear that for every feeder cadre, the 4% reservation would have to be equally made applicable for each category.

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Writ petition stands allowed in the terms as indicated hereinabove. The requirement of passing the reasoned order be done within a period of two months from the date of receipt of a certified copy of this order.

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JUDGE

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Comparing Assistant

Dilip Das v. the State of Assam and 3 Ors.

Case brief

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Dilip Das v. the State of Assam and 3 Ors.

Case brief

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