Page No.# 1/8 GAHC010241502018 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/7511/2018 RITA DAS DAUGHTER OF LATE GANGARAM DAS, RESIDENT OF CBI COURT BUILDING, 2ND FLOOR, CHANDMARI, GUWAHATI- 03, DISTRICT- KAMRUP (M), ASSAM. VERSUS THE STATE OF ASSAM AND 4 ORS. TO BE REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM, DISPUR, GUWAHATI- 781006. 2:THE PRINCIPAL SECRETARY TO THE HONORABLE CHIEF MINISTER OF ASSAM CHIEF MINISTERIAL SECRETARIAT DISPUR GUWAHATI- 781006. 3:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM PERSONNEL (A) DEPTT. DISPUR GUWAHATI-06. 4:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM WPT AND BC DEPTT. DISPUR GUWAHATI-06. 5:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPTT. DISPUR GUWAHATI-06. Page No.# 2/8 6:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM DEPARTMENT OF SOCIAL JUSTICE AND EMPOWERMENT DISPUR ASSAM SECRETARIAT GUWAHATI ASSAM 78100 Advocate for the Petitioner : MR. S SAIKIA, MR. N J GOGOI Advocate for the Respondent : GA, ASSAM, SC, SOCIAL JUSTICE AND EMPOWERMENT,MR R M DAS,MR. T C CHUTIA,MS. R DHAR,MR P NAYAK,SC, FINANCE BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 14-07-2026 Heard Mr. N.J. Gogoi, learned counsel for the petitioner. Also heard Mr. J.K. Goswami, learned Addl. Sr. Govt. Advocate, Assam appearing for the respondent Nos. 1 to 3, Mr. A. Banerjee, learned counsel appearing for the respondent No. 4 and Mr. M. Bhuyan, learned standing counsel, Finance Department, Assam representing respondent No. 5. 2. The petitioner in the present writ petition has prayed for a direction upon the respondent authorities to promote her to the cadre of Commissioner & Secretary w.e.f. the year 2016. 3. As projected in the writ petition, the petitioner on being selected by the Assam Public Service Commission (APSC) was recruited to the Assam Civil Services (ACS) and appointed as an Executive Magistrate, Mangaldai, Darrang, wherein she had joined on 17- Page No.# 3/8 02-1984. Thereafter, the petitioner was promoted to the next higher cadres of the service and finally the petitioner was promoted in the year 2016 to the cadre of Secretary and was posted in the said capacity in the WPT&BC Department, Govt. of Assam. 4. The petitioner projects that 03 posts in the cadre of Commissioner & Secretary to the Govt. of Assam are to be so filled up from the members of the ACS. The petitioner further projects that her status as a member of the Scheduled Caste community is required to be reckoned by the respondent authority while considering the case of the persons in the feeder cadre for promotion to the cadre of Commissioner & Secretary, against the 03 (three) posts reserved for the members of the ACS. The case of the petitioner not being considered for such promotion by applying the provisions for reservation and the petitioner being slated to retire from her service on reaching the age of superannuation w.e.f. 31-10-2018, she had instituted the present writ petition. 5. Mr. N.J. Gogoi, learned counsel for the petitioner, by reiterating the facts noticed, hereinabove, has submitted that the respondent authorities while considering the case of the incumbents in the feeder cadre for promotion to the cadre of Commissioner & Secretary to the Govt. of Assam, against the 03 (three) posts reserved for members of the ACS, had in its meeting held on 24-07-2018, not considered the provisions of the Assam Services Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978, (as amended) and Assam Services Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Rules, 1983. He submitted that in terms of the provisions of the Act of 1978, more particularly, Schedule- 2, thereof, the cadre consisting of 03 (three) posts, the roster as mentioned, therein, was Page No.# 4/8 required to be applied and accordingly, a post works out for Scheduled Caste community candidate. Accordingly, it is submitted that the petitioner was required to be so promoted to the cadre of Commissioner & Secretary by reckoning her status as a candidate belonging to the Scheduled Caste community. He submits that non-consideration of the provisions of the Reservation, Act and the Rules, had resulted in a discrimination being caused to the petitioner and she was denied her due promotion to the cadre of Commissioner & Secretary. Accordingly, he submits that appropriate directions are called upon to be issued to the respondent authorities to deem the petitioner to have been so promoted to the cadre of Commissioner & Secretary, w.e.f. the year 2016 or atleast w.e.f. the date when persons were so promoted in terms of the recommendation made by the Selection Committee in its meeting held on 24-07-2018. 6. Per contra, Mr. J.K. Goswami, learned Addl. Sr. Govt. Advocate, Assam appearing for the respondent Nos. 1 to 3, submits that the Selection Committee in its meeting held on 24-07-2018, by reckoning the provisions of the OM dated 29-12-2014, had arrived at a decision that the provisions of the Reservation, Act and the Rules framed, thereunder, would not be applied in the matter, inasmuch as, in the event the same is applied, the percentage of reservation for a particular community would exceed 22%. Mr. Goswami submits that on consideration of the case of the petitioner, herein, the Selection Committee had recommended her case for such promotion, however, in absence of a vacancy arising during the service tenure of the petitioner, the petitioner was not in a position to be so promoted to the cadre of Commissioner & Secretary. He submits that the petitioner having superannuated from his services w.e.f. 31-10-2018, the claim of the Page No.# 5/8 petitioner for being considered for promotion would not be maintainable and in this connection has placed reliance on a decision of the Hon’ble Supreme Court in the case of Govt. of W.B. & Ors. Vs. Dr. Amal Satpathi reported in 2024 SCC OnLine SC 3512. 7. I have heard the learned counsel for the parties and have also perused the materials available on record. 8. It is not disputed that 03 (three) posts in the cadre of Commissioner & Secretary to the Govt. of Assam, were reserved to be so filled up amongst the incumbents in the ACS, figuring in the cadre of Secretary to the Govt. of Assam of the said service. The petitioner was admittedly a member of the ACS and w.e.f. the year 2016 was holding a post of Secretary to the Govt. of Assam. Provisions having been made for promotion only against 03 (three) posts in the cadre of Commissioner & Secretary to the Govt. of Assam from amongst the incumbents in the feeder post figuring in the ACS, it is seen that in the event the provisions of reservation in promotion is so applied, the quota prescribed for each of the reserved communities would stand exceeded. The Govt. of Assam vide OM dated 29- 12-2014, had laid down the guidelines for implementation of the post based reservation and in Clause 2.2, thereof, had stipulated that while operating the relevant roster, utmost care is to be taken to ensure that on no occasion prescribed percentage of reservation of 22% for reserved community candidates is exceeded. It was further stipulated that if such a situation occurs at any time that the prescribed percentage of reservation exceeds 22%, then the relevant reserved/ unreserved point arising, as a result of rotation, shall be skipped. In other words, the OM lays down that the total percentage of reservation as provided for in the Act of 1978 for the reserved communities, i.e. 22%, shall not be Page No.# 6/8 exceeded at any point of time. Accordingly, in view of the said stipulation, it would not be also permissible to apply the roster as provided for under Schedule-2, of the Act of 1978. 9. As noticed hereinabove, the cadre strength being 03 (three), in the event promotion is effected in respect of a Scheduled Caste candidate to the said cadre, by reckoning the Scheduled Caste status of such candidate, the percentage of reservation would stand increased to 33%, which would be beyond the mandated 22% and would be in violation of the provisions of the OM dated 29-12-2014, as well as the percentage of Reservation provided for each of the reserved communities, in the provisions of the Act of 1978. Accordingly, the claim of the petitioner for being considered for promotion to the cadre of Commissioner & Secretary against the 03 (three) posts reserved, therein, for members of the ACS by applying the provisions of reservation would not mandate an acceptance from this Court. 10. Having drawn the said conclusions, this Court also notices that the petitioner having retired from her services w.e.f. 31-10-2018, it would not be permissible for this Court to direct the respondent authorities to promote the petitioner to the cadre of Commissioner & Secretary with retrospective effect, inasmuch as, the employer-employee relationship between the respondent authorities and the petitioner was severed w.e.f. 31- 10-2018. 11. It is settled position of law that no retrospective promotion or seniority can be granted from a date when an employee was not born in the cadre so as to adversely affect the other incumbents working in the said cadre. Page No.# 7/8 12. Further the Hon’ble Supreme Court, on the issue as to whether an employee could be validly promoted after his retirement date, in the case of Dr. Amal Satpathi (Supra) had laid down that it is a well settled principle that promotion becomes effective from the date it is granted, rather than from the date a vacancy arises or the post is created. While the Courts have recognized the right to be considered for promotion as not only a statutory right but also a fundamental right, there is no fundamental right to the promotion itself. It further held that promotion only becomes effective upon the assumption of duties on the promotional post and not on the date of occurrence of the vacancy or the date of recommendation. It thus held that the petitioner in the above case having superannuated from her service, before her promotion could be effectuated, the petitioner was not entitled to retrospective financial benefits associated to the promotional post, as she did not serve in that capacity. 13. Applying the decision of the Hon’ble Supreme Court in the case of Dr. Amal Satpathi (Supra) to the facts of the present case, this Court finds that the petitioner having superannuated from her services w.e.f. 31-10-2018, she would not be entitled to a direction for promotion, inasmuch as, the petitioner would now not be in a position to assume the charge of the post of Commissioner & Secretary, after her superannuation from service. 14. In view of the above discussion, this Court is of the considered view that the claims made by the petitioner in the present writ petition would not mandate an acceptance and accordingly, the writ petition is held to be devoid of any merit and consequently the same stands dismissed. However, there would be no order as to costs. Page No.# 8/8 JUDGE Comparing Assistant