Hon'ble Mr. Justice Devashis Baruah disposed of a writ petition challenging an Office Memorandum regarding reservations in promotion. The single judge held that the matter was squarely covered by a coordinate bench judgment and followed its observations, declaring the petition disposed without addressing substantive merits.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC010023482017
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3003/2017
DIPAK MENA and 4 ORS. S/O LT. PRITHURAM MANA BAKRAPARA, PINLINGKATA ROAD, P.O. BASISTHA, GUWAHATI -29, DIST. KAMRUP M, ASSAM
2: SRI NAVAJYOTI JAGANNATH S/O LT. ARAVINDA NATH GANESHPARA OPPOSITE SEWALI PATH P.S. and P.O. HATIGAON GUWAHATI-36 DIST. KAMRUP M ASSAM
3: SRI BHABEN CH. KALITA S/O LT. PRIYANATH KALITA AGRICULTURE CAMPUS GUWAHATI-7 DIST. KAMRUP M ASSAM
4: SRI DIPAK MEDHI S/O LT. KANAI LAL MEDHI FLAT NO. 103 UTTARAYAN HEIGHTS NEAR GHORAMARA CHARIALI P.S. BELTOLA GUWAHATI -28 DIST. KAMRUP M ASSAM
5: SRI MRIDUL KUMAR SARMA S/O LT. HEM CHANDRA SARMA R/O TARAJAN KAKOTY GAON RUPALI NAGAR P.O. and P.S. TARAJAN DIST. JORHAT ASSAM PIN - 785001
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VERSUS
THE STATE OF ASSAM and 36 ORS.
REP. BY THE CHIEF SECRETARY, GOVT.OF ASSAM, DISPUR, GUWAHATI7810067
2:THE ADDITIONAL CHIEF SECRETARY TO THE GOVT. OF ASSAM WPT and BC DEPT. DISPUR GUWAHATI-06.
3:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM DEPARTMENT OF WPT and BC DEPTT. DISPUR GUWAHATI-06. 4:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM PERSONNEL B DEPARTMENT DISPUR GUWAHATI-06. 5:THE COMMISSIONER and SECRETARY TO THE GOVT. OF ASSAM AGRICULTURE DEPARTMENT DISPUR GUWAHATI-06.
6:THE DIRECTORATE OF AGRICULTURE
ASSAM KHANAPARA GUWAHATI - 781022. 7:SRI. BISWAJIT LANGTHASA
S/O- LT. BORI MARTA LANGTHASA R/O- MAIBONG P.O.- HALFLONG DIST- DIMA HASAO.
8:HAMEN DAS PUBARUN PATH RESIDENT OF HATIGAON H. NO. 8 P.O. HATIGAON DIST. KAMRUP M ASSAM
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GUWAHATI-38.
9:PURNANANDA DEURI SON OF LATE TRIBAR DEURI RESIDENT OF BORDEURI GAON P.O. BORDEURI GAON P.S. NARAYANPUR DIST. LAKHIMPUR. 10:MADAN MOHAN DEURI BHARALI SON OF LATE KRISHNA MOHAN BHARALI RESIDENT OF QT. NO. 3 AGRICULTURE COLONY P.O. and P.S. ULLUBARI DIST. KAMRUP M GUWAHATI-07. 11:SISHIR CHANDRA DAS SON OF LATE CHANDRA MOHAN DAS RESIDENT OF VILLAGE NO. 1 BHATIAKHALI P.O. KATHPARA DIST. NAGAON ASSAM PIN-782120. 12:GUNJANAN DEORI SON OF LATE CHANDRA NATH DEORI RESIDENT OF RAJDARGIA CHARIALI P.O. PHOTIKACHAWA DIST. CHARAIDEO PIN-785670. 13:BIMALENDU TARAPDAR SON OF LATE RAGHU NATH TARAPDAR RESIDENT OF VILLAGE PACHIM SOWALONI P.O. AMLOAGAN DIST. NAGAON ASSAM PIN-782120.
14:PANKAJ KR. TALUKDAR SON OF LATE DHARMASWAR HALOI RESIDENT OF VILLAGE JALKHANA P.O. JALKHANA VIA TIHU DIST. NALBARI PIN-783331.
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15:DARILYNE SHABONG DAUGHTER OF LATE STOSHON MARBARIANG RESIDENT OF H. NO. 4 LUCHU BARGAR ROAD P.O. HENGRABARI DIST. KAMRUP M GUWAHATI-781036. 16:MOTILAL CHOUDHURY SON OF LATE BHEBENDRA CHOUDHURY RESIDENT OF BAPUJI NAGAR P.O. BALADMARI DIST. GOALPARA PIN-783121. 17:MALA SARMA DAUGHTER OF LATE KSHITISH CHANDRA DAS P.O. NAGAON DIST. NAGAON PIN-782120. 18:BIPUL BAISHYA SON OF LATE NABIN BAISHYA RESIDENT OF REHABARI P.O. REHABARI DIST. KAMRUP M GUWAHATI-781008. 19:BINODE BASUMATARY SON OF LATE BONESWAR BASUMATARY RESIDENT OF VILLAGE KHALEPARA P.O. BIJNI DIST. CHIRANG PIN-783370. 20:PABITRA KACHARI SON OF LATE MOHAN CH. KACHARI RESIDENT OF VILLAGE BALIGAON P.O. ARADHAL DIST. DHEMAJI ASSAM. 21:RATNESWAR BANIA SON OF LATE DASIRAM BANIA RESIDENT OF GUNA APARTMENT LAKHIMI NAGAR P.O. DISPUR DIST. KAMRUP M
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GUWAHATI-06.
22:TAPAN BRAHMA SON OF LATE MANIRAM BRAHMA RESIDENT OF JAPORIGOG H. NO. 6 P.O. GANESHGURI DIST. KAMRUP M GUWAHATI-781005. 23:PURNA BASUMATARY SON OF LATE GOJEN CH. BASUMATARY RESIDENT OF GANAPATH DIST. KAMRUP M GUWAHATI-22. 24:ANSER ALI SON OF LATE H.A. SATTAR R/O VILL. DOUKMARI P.O. JANIA P.S. and DIST. BARPETA ASSAM. 25:SRI DILIP GAYAN SON OF LATE RAMESWAR GAYAN R/O. VILL. MOURACHUK P.O. CHALCHALI DIST. NAGAON ASSAM. 26:SRI ARUP BORA SON OF LATE NABIN CH. BORA R/O. VILL. BAIDYATUP P.O. MADHUPUR DIST. NAGAON ASSAM. 27:SRI HIRANYA NATH SON OF LATE SANTIRAM NATH R/O. VILL. SANTIPUL HILL SIDE PRAGJYOTISH PATH GUWAHATI-09 DIST. KAMRUP ASSAM. 28:SRI PANKAJ KR. SAIKIA SON OF LATE HEMADHAR KEOT R/O. VILL. KAILASH NAGAR
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BYE LANE -1 SOUTH HAGARAPAR P.O. and P.S. TEZPUR DIST. SONITPUR ASSAM. 29:SRI JITEN KUMAR DAS SON OF LATE DHANIRAM DAS R/O. VILL. and P.O. MIRZA DIST. KAMRUP ASSAM. 30:SRI HRIDAY KUMAR DAS SON OF LATE RAMESH CH. DAS R/O. VILL. RIHABARI MADHAVDEV PUR GUWAHATI-08 DIST. KAMRUP ASSAM. 31:SRI PANKAJNATH DAS SON OF HARENDRA NATH DAS R/O. BEAU MANSION 12 NAHARANI PATH DISPUR LAST GATE GUWAHATI DIST. KAMRUP ASSAM. 32:SRI HAREN GOGOI SON OF LATE LOKESWAR GOGOI R/O. VILL. PIKHURIA P.O. and P.S. MORIANI DIST. JORHAT ASSAM. 33:SRI SATISH TALUKDAR SON OF LATE RAMBILASH TALUKDAR R/O. TOWN and P.O. PATHSALA LACHIT NAGAR DIST. BARPETA ASSAM. 34:DEBA KR. DAS SON OF LATE NARAYAN CH. DAS R/O. VILL. KALAYAHATI P.O. SUNDARIDIA BARPETA
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ASSAM.
35:SRI ANIMESH DAS SON OF LATE MAHESH CH. DAS R/O. VILL. KALAYAHATI P.O. SUNDARDIA BARPETA ASSAM. 36:SRI NIREN CH. GOGOI SON OF LATE RACHANDRA NATH GOGOI R/O. VILL. B.B. ROAD AMOLAPATI NAGAON ASSAM. 37:SRI RABIJIT DUTTA CHOUDHURY SON OF LATE R.N. DUTTA CHODHURY R/O. VILL. PANIGAON NAGAON ASSAM
Advocate for the Petitioner : MR.B CHAKRABORTY
Advocate for the Respondent : GA, ASSAM
BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 02.01.2023
Heard Mr. B. Chakraborty, the learned counsel appearing on behalf of the petitioners. None appears on behalf of the respondents on call.
The instant writ petition has been filed challenging the Office Memorandum No.TAD/BC/68/2011/Pt.-I/2007 dated 3/8/2016 issued by the Additional Chief Secretary to the Government of Assam, WPT & BC Department as well as for a writ of mandamus directing the respondent authorities to forbear from making any provisions for reservations in the present promotion process under the Respondents till the required exercise to identify the need of reservation is not carried out in terms with
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Article 16(4A) of the Constitution.
The learned counsel for the petitioners has drawn the attention of this Court to a judgment passed by a Co-ordinate Bench in the case of Bhagwan Pator Vs State of Assam represented by the Chief Secretary to the Government of Assam and Ors. reported in 2022 (5) GLR 785 wherein the Coordinate Bench of this Court had already decided the issue pertaining to the legality and validity of the Office Memorandum dated 3/8/2016. In doing so, the said Court observed in paragraph 7 and its subparagraphs along with paragraph No. 8, which are quoted herein below :
“7. The aforesaid determination can be summarized in the following manner :
I. The policy of the state in providing reservation in promotion with consequential seniority is discernible from section 5 of the 1978 Act read with O.M. dated 12.3.2002.
II. The Office Memorandum dated 12.3.2002 shall hold the field till such policy is expressly repealed by the State.
III. O.M. dated 3.6.2016 is notified laying procedure for collection of quantifiable data on Backwardness and inadequacy of representation and determining efficiency in administration while giving effect to such policy of providing reservation.
IV. Given the dicta of Jarnail Singh (supra), the O.M. dated 03.08.2016 cannot sustain so far, the same relates to the collection of data on backwardness. Page No. 40/41
V. The determination of cadre as a unit for collection of quantifiable data as laid down in OM dated 03.08.2016 conforms to the mandate of Jarnail Singh (supra) and M. Nagraj (supra) and therefore the same is upheld.
VI. The procedure as laid down for determining efficiency in administration not being arbitrary and not being based on any extraneous consideration, the same is upheld.
VII. Article 16 (4B) enables the State to carry forward vacancies and the vacancies carried forward is cannot be included in the ceiling of 50% of the year of filling up vacancies. Section 5A of the Act 1978 permits carrying forward vacancies and therefore, the policy of carrying forward as provided in the office memorandum dated 03.08.2016 not being arbitrary and not being based on any extraneous consideration, same is upheld.
VIII. Given the dictum in Jarnail Singh (supra), the judgment made in the
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Equality Forum-I relating to collection of data to determine of backwardness has become redundant.
IX. Article 16 (4A) and 16 (4B) being enabling provisions, the State is at liberty to implement its policy of giving reservation in promotion with consequential seniority, at liberty to provide for reservation in promotion without consequential seniority or at liberty not to provide any reservation in promotion. However, while implementing/adopting/changing such policy, due process of law need to be followed including dicta in M. Nagraj (supra) clarified in Jarnail Singh (supra).
In that view of the matter, the instant writ petition is squarely covered by the said judgment, for which the instant writ petition stands disposed in terms with the observations and conclusion arrived at by the Coordinate Bench in the case of Bhagwan Pator(supra).
With the above observations, the instant petition stands disposed off.
JUDGE
Comparing Assistant
2 issues framed by the court
Whether the instant writ petition challenging the Office Memorandum dated 3/8/2016 should be disposed of in light of a coordinate judgment.
Whether the legality and validity of the Office Memorandum relating to reservations in promotion requires separate consideration given binding precedent.
Colour shows how this judgement treated each authority
Bhagwan Pator Vs State of AssamFollowed¶43
Bhagwan Pator Vs State of Assam reported in 2022 (5) GLR 785
DIPAK MENA and 4 ORS
THE STATE OF ASSAM
DEVASHIS BARUAH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
