Ekendra Brahma vs State of Assam and Others

J.N. Sarma, J.—The Petitioner belongs to Bodo Kochari community (Scheduled caste). In 1985 he passed H.S.L.C. examination under the Board of Secondary Education, Assam. Earlier to it on 24.11.83 the Petitioner was appointed as office peon in the office of the Sub-Divisional Officer (Civil), Gossaigaon. In 1988 he completed a diploma course in typing in English and Assamese. On 22.12.88 the Petitioner was promoted to the post of Jarikarak post in the same office of S.D.O. (Civil), Gossaigaon. On 9.5.93 a gradation list for Grade IV employees in the establishment of S.D.O. (Civil), Gossaigaon was published showing the Petitioner in Serial No. 5. On 18.4.94 a provisional gradation list for Grade-IV employees of amalgamated establishment of Deputy Commissioner, Kokrajhar was pubished showing the Petitioner in serial No. 33 and the Respondent No. 3 in serial No. 34 and the Respondent No. 4 in serial No. 43. On 10.12.96 there was a notice asking the Grade-IV employees of the Deputy Commissioner''s establishment who have completed continuous 7 years service with typing experience to appear before the Selection Board for promotion to Grade-in post. The Petitioner appeared before the Selection Board. It is contended that the Select list was not published by the concerned authority. That is denied by the Respondents No. 3 and 4 by filing affidavit stating that the select list was duly published. On 10.3.97 the Respondent No. 2 by an order promoted the Respondents No. 3 and 4 to the post of L.D.A. and they were posted in Food and Civil Supplies Branch, at Gossaigaon and Kokrajhar. The contention of the Petitioner is that he is senior to the Respondents No. 3 and 4 as because the Petitioner was appointed on 30.11.83 whereas the Respondent No. 3 on 1.7.84 and the Respondent No. 4 on 30.9.85 respectively. On 11.3.97 a representation was filed with a prayer to review the order of promotion but the same was not disposed of. The claim of the Petitioner is that the Respondent No. 2 promoted the Respondents No. 3 and 4 by superseding the Petitioner and in violation of rules that is Assam Ministerial Staff Service Rules, 1967.

I have heard Mr. R.L. Yadav, learned Advocate for the Petitioner and Mr. G.N. Sahewalla, learned Advocate for the Respondents No. 3 and 4 and Mr. Talukdar, learned GA, for the Respondents No. 1 and 2 Mr. Yadav, places reliance on the following decisions. B.V. Sivaiah and Others etc. Vs. K. Addankl Babu and Others etc., wherein paragraphs 8, 10 and 18 has pointed out as follows:

In the matter of formulation of a policy for promotion to a higher post, the two competing principles which are taken into account are inter se seniority and comparative merit of employees who are eligible for promotion. In Sant Ram Sharma Vs. State of Rajasthan and Another, This Court has pointed out that the principle of seniority ensures absolute objectivity by requiring all promotions to be made entirely on grounds of seniority and that if a post falls vacant it is filed by the person who had served longest in the post immediately below. But the seniority system is so objective that it fails to take any account of personal merit. It is fair to every official except the best ones, an official has nothing to win or lose provided he does not actually become so inefficient that disciplinary action has to be taken against him. The criterion of merit, on the other hand, lays stress on meritorious performance irrespective of seniority and even a person though junior but much more meritorious than his seniors is selected for promotion. The court has expressed the view that there should be a correct balance between seniority and merit in a proper promotion policy. The criteria of ''seniority-cum-merit'' and ''merit-cum-seniority'' which take into account seniority as well as merit seek to achieve such a balance.

On the other hand, as between the two principles of seniority and merit, the criterion of "Seniority-cum-merit" lays greater emphasis on seniority. In State of Mysore and Another Vs. Syed Mahmood and Others, while considering Rule 4(3) (b) of the Mysore State Civil Services General Recruitment Rules, 1957 which required promotion to be made by selection on the basis of seniority-cum-merit, This Court has observed that the rule required promotion to be made by selection on the basis of "seniority subject to the fitness of the candidate to discharge the duties of the post from among persons eligible for promotion." It was pointed out that where the promotion is based on seniority-cum-merit the officer cannot claim promotion as a matter of right by virtue of his seniority alone and if he is found unfit to discharge the duties of higher post, he may be passed over and an officer junior to him may be promoted.

In State of Kerala and Another Vs. N.M. Thomas and Others, C.J. has thus explained the criterion of seniority-cum-merit:- "With regard to promotion the normal principles are either merit-cum-seniority or seniority-cum-merit. Seniority-cum-merit means that given the minimum necessary merit requisite for efficiency of administration the seniority though the less meritorious shall have priority 930 of SCR at p. 500 Para 38 of AIR. "

We thus arrive at the conclusion that the criterion of "Seniority-cum -merit" in the matter of promotion postulates mat 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 prescribe 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 "Seniority-cum -merit".

There is no quarrel with this proposition of law and this judgment is squarely binding on me. But Mr. Sharma points out that the Petitioner is not qualified to be promoted in accordance with law and rules in force. Rule 6(5)(b) reads as follows:

(b) By selection on the basis of "Seniority-cum-merit" from amongst Grade IV staffs of the district establishment concerned who have passed the Higher Secondary or equivalent examination and have rendered at least 7 years of continuous service in the district establishment on the first day of the year in which selection is made.

So the requirement is that the person must pass the higher secondary or equivalent examination. The case of the Respondent is that the Petitioner only passed the HSLC examination and the HSLC examination is not equivalent to Higher Secondary Examination in as much as a person can pass Higher Secondary examination only after 2 years of the completion of HSLC examination. That is the qualification as laid down in Rule 7(3) of the aforesaid rules. But this Rule was amended and the qualification was made H.S.L.C. Examination. The Gazette notification amending the Rule was produced before me. The Petitioner was ignored on the basis of a non existing Rule at the relevant time. So this application is allowed. The Petitioner shall be promoted from the date of his juniors were promoted, the authority shall pass necessary order within one month froth the date of receipt of certified copy of the: order. I make no order as to costs.