1. The petitioner, herein, who is presently working as a Supervisory Assistant in the establishment of the District & Sessions Judge’s Court at Dhubri, being aggrieved by the promotion granted to the respondent No.6 vide Order bearing No.31 dated 03.03.2022 has filed the instant writ petition.
2. I have heard Mr. I Hassan, the learned counsel appearing on behalf of the petitioner. Also heard Mr. SC Biswas, the learned counsel appearing on behalf of the respondent No.6; Ms. S Sarma, learned counsel for the respondent Nos. 2, 3, 4 and 5; and Ms. S Baruah, the learned Government Advocate appearing on behalf of the respondent No.1, being the State of Assam.
3. The facts which are discernible from the perusal of the pleadings on record show that the petitioner herein joined in the services of the establishment of the District & Sessions Judge Dhubri on 01.06.2006 in the post of Lower Division Assistant (for short, LDA), thereupon on 01.03.2015, the petitioner was promoted to the post of Upper Division Assistant (for short, UDA). Subsequent thereto on 21.12.2020, the petitioner was further promoted to the post of Supervisory Assistant. It is also seen from the records that the respondent No.6 was also appointed as an LDA in the same establishment on 01.06.2006, however, he was promoted to the post of UDA on 01.04.2015. Be that as it may, the promotion of the petitioner and the respondent No.6 to the post of Supervisory Assistant is on the same date i.e. on 21.12.2020. The records further reveal that a notice was issued by the respondent No.5 on 15.02.2022 for the purpose of filing up the post of Civil Sheristadar, wherefrom it is seen that various employees including the petitioner and the private respondent were informed that an oral interview/viva voce for promotion to the higher post was scheduled to be held on 17.02.2022 in the Chamber of the District & Sessions Judge, Dhubri. The petitioner along with others duly participated in the said selection process. Pursuant thereto on 03.03.2022, an order was issued by the respondent No.5 whereby the respondent No.6 who was junior to the petitioner was promoted to the post of Civil Sheristadar in the office of the Munsiff No.1 Dhubri, whereas the petitioner was not. It is under the said circumstances, the petitioner being aggrieved has approached this Court challenging the order dated 03.03.2022.
4. This writ petition was filed on 20.06.2022 and this Court by the order dated 29.06.2022 had issued notice. This Court, however, did not stay the impugned order dated 03.03.2022, but made it clear that the impugned order would be subject to the outcome of the writ petition. The record reveals that an affidavit-in-opposition has been filed by the respondent No.5. In the said affidavit-in-opposition, it was mentioned that though the petitioner was senior to the respondent No.6, in terms of the gradation list of the year 2021, the selection board having considered the higher marks scored by the respondent No.6 than the petitioner and finding nothing adverse in the ACR of the respondent No.6 for the years 2018, 2019 and 2020 promoted the respondent No.6 to the post of Civil Sheristadar, Munsiff Court, Dhubri. It was also mentioned that the resolution dated 17.02.2022 revealed that in that particular case of promotion, the selection board had given weightage to the factor of seniority first, rather than merit for this particular case of promotion. However, as all the candidates appeared in the interview, the selection board considered the factor of merit to some extent, and, therefore, decided to promote the candidate scoring higher marks, which is why the petitioner along with two other Upper Division Assistants, who appeared in the interview were rejected upon an overall assessment of their eligibility. This Court has also taken note of the minutes of the selection board meeting which has been enclosed as Annexure-5 to the affidavit-in-opposition filed by the respondent No.5. From the said minutes of the meeting, it transpired as to on what basis the selection committee had preferred the respondent No.6 from that of the petitioner. Paragraph 2 of the said minutes is reproduced hereinbelow:
“2. Regarding Civil Sheristadar of Munsiff, Dhubri, one Amar Chakraborty and Iftikhar Azad, the existing Upper Division Assistants-cum-Supervisory Assistants, having requisite qualification are being interviewed against one post of Civil Sheristadar of O/O Munsiff, Dhubri. The incumbent Iftikhar Azad is however found eligible for the post of Civil Sheristadar of Munsiff, Dhubri on the ground that he scored higher marks than Mr. Amar Chakraborty. Also nothing adverse is found against Iftikhar Azad either in his A.C.R. recorded for the year 2018, 2019 and 2020 or in his pursuit of service. Accordingly, Iftikhar Azad, UDA, SA, is promoted to the post of Civil Sheristadar of Munsiff, Dhubri which was vacated by Dewan Mehbub Ali.”
5. Respondent No.6 had also filed an affidavit-in-opposition, wherein it was mentioned that the respondent No.6 herein was senior to one Shri Arif Ahmed, who is not a party to the instant proceedings, inasmuch as, the respondent No.6 is at Sl.No.9 of the gradation list, whereas the said Shri Arif Ahmed is at Sl. No.12. The rest of the statements so made in the said affidavit-in-opposition by the respondent No.6 is in tune with the narrated facts for which this Court for the sake of brevity is not repeating. The records further reveal that an affidavit-in-reply was filed by the petitioner against the affidavit-in-opposition filed by the respondent No.5. To the said affidavit-in-reply, a copy of the Assam District & Sessions Judges Establishment (Ministerial) Service Rules, 1987 (for short, the Rules of 1987) has been annexed.
6. In the backdrop of the pleadings, this Court has also heard the learned counsel appearing on behalf of the parties. It is the submission of the learned counsel appearing on behalf of the petitioner, Mr. I Hassan that a perusal of the Note to Rule 6 (3) of the Rules of 1987 would clearly show that the criterion for selection to the post of Sheristadar of Assistant District & Sessions Judge, Supervisory Assistant, Sheristadar of Munsiff is on the basis of seniority-cum-merit. The learned counsel further drew the attention to Rule 12(ii) and submitted that in the Upper Division (including Sheristadar to Munsiff) cadre, the seniority would be according to the position in the select list from which the promotion to the post of UDA is made. On the basis of the same, the learned counsel for the petitioner, therefore, submitted that as the petitioner admittedly is senior to the respondent No.6, the petitioner, therefore, ought to have been promoted to the post of the Civil Sheristadar of the Munsiff taking into account the criterion to be seniority-cum-merit. The learned counsel submits that when the criterion is seniority-cum-merit, the selection board, therefore, ought to have considered the principle which postulates that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made.
7. The learned counsel for the petitioner drawing the attention to the minutes of the selection committee meeting and more particularly to paragraph 2 of the minutes which had already been quoted hereinabove, submitted that there is no mention in the said selection committee minutes that the petitioner does not meet the requisite minimum criterion, rather the respondents have taken into account the merits vis a vis, the petitioner and the respondent No.6, which is completely contrary to the service Rules and the well settled principles as to how the criterion of seniority-cum-merit has to be adjudged.
8. Ms. S Sarma, learned counsel appearing on behalf of the respondent Nos. 2, 3, 4 and 5 submitted fairly that from the minutes of the selection committee meeting or the affidavit filed by the respondent No.5, it does not reveal that the petitioner did not have the minimum benchmark; she, therefore, submitted with all fairness that in such circumstances, the petitioner, who admittedly was senior to respondent No.6 ought to have been promoted.
9. Mr. SC Biswas, learned counsel appearing on behalf of the respondent No.6 submitted that admittedly the respondent No.6 is junior to the petitioner, but vide the same impugned order, another junior officer, namely, one Shri Arif Ahmed, who is at Sl.No.12 of the gradation list had been granted a promotion to the post of Civil Sheristadar in the Court of Munsiff, Bilasipara. He submitted that if there is an interference by this Court to the order being passed, the respondent No.6 would be relegated back to the Supervisory Assistant, whereas the junior officer would be promoted to the post of Civil Sheristadar in the establishment of the Munsiff, Bilasipara.
10. This Court have duly perused the materials on record, the pleadings as well as also taken note of the submissions made by the learned counsel for the parties. A perusal of the Rules of 1987 reveal as to how the recruitment is to be made. Rule 6(3) specifically envisages that to the post of Sheristadar of the Assistant District & Sessions Judge, Supervisory Assistant, Sheristadar of Munsiff, the same has to be made by selection from amongst the Upper Division Assistant working for not less than 7 years in the District & Sessions Judges Establishment (Ministerial). The note appended to Rule 6(3) categorically mentions that the criterion for selection would be on the basis of seniority-cum-merit and the whole list shall remain valid for one year from the date of the recommendation made by the selection board. It is also seen from Rule 12 of the Rules of 1987 that in respect of Upper Division (including Sheristadar to Munsiff) cadre, the seniority would be according to the position in the select list from which the promotion to the post of UDA is made. From the records available, more particularly, the gradation list in the office of the District & Sessions Judge, Dhubri for the year 2021, it is clear that the petitioner herein is at Sl.No.8, whereas the respondent No.6 is at Sl.No.9. This aspect of the matter is duly admitted by the respondent authorities in the affidavit so filed by the respondent No.5. The question, therefore, arises in the instant case is as to whether the selection so made was done taking into account the criterion seniority-cum-merit in the proper perspective. The criterion seniority-cum-merit has been dealt with by the Supreme Court in various decisions. In the case of B. V. Sivaiah & Ors vs K. Addanki Babu & Ors, reported in (1998) 6 SCC 720, the Supreme Court observed that the criterion of seniority-cum-merit in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior even though less meritorious shall have priority and a comparative assessment of merit is not required to be made. It was further observed that for assessing the minimum necessary merit, the competent authority can lay down minimum standard that is required and also prescribes the mode of assessment of merit of the employee, who is eligible for consideration for promotion. Further to that the Supreme Court has also observed that such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service records and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit. Paragraph 18 of the said judgment has been reproduced hereunder:
“18. We thus arrive at the conclusion that the criterion of ‘seniority-cum-merit’ in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit, the competent authority can lay down the minimum standard that is required and also prescribed the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit.”
11. In the backdrop of the above proposition of law as settled by the Supreme Court and the same being applied to the facts of the case, more particularly, to the minutes of the selection committee meeting held on 08.02.2022, it would show that the selection committee did not come to the opinion that the petitioner herein did not have the minimum necessary merit requisite for efficiency of administration. The record further reveals that the competent authority did not lay down the minimum standard that is required or had also prescribed the mode of assessment of the merits of the employee, who were available for consideration for promotion. On the other hand, a perusal of paragraph 2 of the minutes of the selection committee meeting held on 08.02.2022, which has already been quoted hereinabove shows that both the petitioner as well as the respondent No.6 have the requisite qualifications and as such they were interviewed. However, on the ground that the respondent No.6 was found eligible for the post of Civil Sheristadar of Munsiff, Dhubri on the ground he had scored higher marks than the petitioner, it was recommended that the respondent No.6 be promoted to the post of Civil Sheristadar of the Munsiff, Dhubri. In the opinion of this Court, the manner in which the assessment was done was not in terms of the criterion laid down i.e., seniority-cum-merit and the well settled principles by the Supreme Court. Under such circumstances, this Court is, therefore, of the opinion that the selection which has been made in favour of the respondent No.6 is required to be interfered with.
12. Accordingly, this Court interferes with the selection of the respondent No.6 and the minutes of the selection committee meeting held on 08.02.2022 in so far as the selection of the respondent No.6 is concerned. Consequently this Court also interferes and sets aside the Order bearing No.31 dated 03.03.2022 in so far as the respondent No.6 had been promoted/upgraded to the post of Civil Sheristadar in the office of the Munsiff No.1 Dhubri. The respondent No.6 be, therefore, reverted back to his original post.
13. This Court further directs the District & Sessions Judge, Dhubri to carry out a fresh selection on the basis of the observations made hereinabove and the same be carried out within a period of 2(two) months from the date a certified copy of the instant judgment being served upon the respondent No.5.
14. Before parting with the records, this Court also finds it more pertinent to take note of the submissions made by Mr. SC Biswas, learned counsel appearing for the respondent No.6 to the effect that one Shri Arif Ahmed, who was junior to the respondent No.6 had been promoted to the post of Civil Sheristadar in the office of the Munsiff, Bilasipara. This Court has duly taken note of the selection which was carried out in respect of the said Shri Arif Ahmed and from the Annexure-8 to the affidavit filed by the respondent No.5 it reveals that the same was a separate selection proceeding which was held on 17.02.2022.
15. The respondent No.6, if so aggrieved by the promotion of Shri Arif Ahmed to the post of Civil Sheristadar in the office of the Munsiff, Bilasipara would be at liberty to do so, if so permissible under the law.
16. Writ petition stands disposed of in the above terms.
