Gauhati High Court
Page No.# 1/23 vs The Honourable Gauhati High Court And 8 ... on 27 February, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/23
GAHC010027772020
2025:GAU-AS:2261
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1681/2020
JYOTI NARAYAN GOGOI AND 2 ORS.
PERMANENT R/O- SIMALUGURI, P.O. AND P.S. SIMALUGURI, DIST.-
LAKHIMPUR, ASSAM. HOWEVER, PRESENTLY RESIDING IN THE
ADDRESS- C/O- MR. KASHI NATH DEVSHARMA, HOUSE NO.- 13,
NABAGIRI PATH, KHARGULI, GUWAHATI, PIN- 781004, DIST.- KAMRUP(M),
ASSAM
2: ANKITA HAZARIKA
D/O- LT. SARBESWAR HAZARIKA
HENGRABARI
NEAR KALI MANDIR
ARUNDOI PATH
HOUSE NO. 420
P.O.- HENGRABARI
GUWAHATI- 781036
DIST.- KAMRUP(M)
ASSAM.
3: MADHUSMITA MAUT
D/O- MR. MOHENDRA MAUT
DISPUR CAPITAL COMPLEX
QR. NO. VIII(M)
27/4
DISPUR LAST GATE
P.S. DISPUR
GUWAHATI- 781006
DIST.- KAMRUP(M)
ASSAM
VERSUS
THE HONOURABLE GAUHATI HIGH COURT AND 8 ORS.
REP. BY THE REGISTRAR GENERAL OF THE HONOURABLE GAUHATI
HIGH COURT, MAHATMA GANDHI ROAD, GUWAHATI, DIST- KAMRUP(M),
Page No.# 2/23
ASSAM, PIN- 781001.
2:THE REGISTRAR GENERAL
HONOURABLE GAUHATI HIGH COURT
MAHATMA GANDHI ROAD
GUWAHATI
DISTRICT- KAMRUP(M)
ASSAM
PIN- 781001.
3:THE REGISTRAR (VIGILANCE)
HONOURABLE GAUHATI HIGH COURT
MAHATMA GANDHI ROAD
GUWAHATI
DISTRICT- KAMRUP(M)
ASSAM
PIN- 781001.
4:THE STATE OF ASSAM
REP. BY THE SECY. TO THE GOVT. OF ASSAM
JUDICIAL DEPTT.
DISPUR
GHY.-06.
5:THE HONOURABLE DISTRICT AND SESSION JUDGE
KAMRUP(METRO)
GUWAHATI
PIN- 781001.
6:ANIMESH DAS
THE L.D. ASSISTANT OF THE ESTABLISHMENT OF THE DISTRICT AND
SESSIONS JUDGE
KAMRUP(M)
GUWAHATI
CURRENTLY WORKING AS ESTABLISHMENT ASSISTANT IN THE OFFICE
OF THE ESTABLISHMENT AND PRESENTLY PROMOTED AS U.D.
ASSISTANT W.E.F. 23.05.2018
7:CHAYAN RAJKHONWAR
THE L.D. ASSISTANT OF THE ESTABLISHMENT OF THE DISTRICT AND
SESSIONS JUDGE
KAMRUP(M)
GUWAHATI
CURRENTLY WORKING AS CRIMINAL ASSISTANT IN THE OFFICE OF THE
DISTRICT AND SESSIONS JUDGE
KAMRUP(M)
GUWAHATI AND PRESENTLY
PROMOTED AS U.D. ASSISTANT W.E.F. 23.05.2018.
Page No.# 3/23
8:ONKAR JYOTI DEB
THE L.D. ASSISTANT OF THE ESTABLISHMENT OF THE DISTRICT AND
SESSIONS JUDGE
KAMRUP(M)
GUWAHATI
AND CURRENTLY
PROMOTED AS U.D. ASSISTANT W.E.F. 17.12.2019.
9:SANDEEP SAIKIA
THE L.D. ASSISTANT OF THE ESTABLISHMENT OF THE DISTRICT AND
SESSIONS JUDGE
KAMRUP(M)
GUWAHATI
AND CURRENTLY
PROMOTED AS U.D. ASSISTANT W.E.F. 17.12.2019
Advocate for the Petitioners : Mrs. P. Barman, Advocate
Mr. H. K. Das, SC, Gauhati High Court
Advocate for the Respondents: Mr. K. K. Bhattacharyya, Advocate
Mr. R. Sarma, Advocate
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
Date of Hearing : 27.02.2025
Date of Judgment : 27.02.2025
JUDGMENT AND ORDER (ORAL)
Heard Mrs. P. Barman, the learned counsel appearing on
behalf of the petitioners. Mr. H. K. Das, the learned Standing
Counsel appears on behalf of the respondent Nos.1, 2, 3 & 5. Mr.
K. K. Bhattacharyya, the learned counsel appears on behalf of
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the respondent No.4 and Mr. R. Sarma, the learned counsel
appears on behalf of the respondent Nos.6 & 7. None appears on
behalf of the Respondent Nos.8 & 9 inspite of service of notice.
2. The instant writ petition has been filed by the petitioners
challenging the Gradation List of the years 2017, 2018 and 2019
of the Grade-III staff in the establishment of the respondent
No.5; the order dated 25.05.2018 issued by the respondent No.5
thereby promoting the respondent Nos.6 & 7 to the post of
Upper Division Assistants (UDA); the Appellate order dated
11.06.2019 passed by the Gauhati High Court in its
administrative side and the letter dated 15.06.2019 issued by the
Registrar (Vigilance) Gauhati High Court to the respondent No.5
rejecting the Appeal petition dated 18.06.2018 filed by the
petitioner No.1 and further the promotional orders issued in
favour of the respondent Nos.8 & 9 dated 17.12.2019. The
petitioners herein seek appropriate writ, direction and orders that
they should be given notional promotion to the post of Upper
Division Assistant (UDA) in the establishment of the respondent
No.5 w.e.f. 25.05.2018, when the respondent Nos.6 & 7 were
promoted.
3. The brief facts leading to the filing of the instant writ
petition as would appear from the materials on record is that the
Petitioners herein were appointed as Lower Division
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Assistants/Copyists in the establishment of the respondent No.5
vide an appointment order dated 04.03.2014. The petitioners'
names appear at Sl. Nos.9, 11 & 13 in the said appointment
order dated 04.03.2014. Thereupon, the petitioners joined on
06.03.2014 and this aspect of the matter is an admitted fact and
it is not denied by the respondents.
4. Subsequent thereto, a draft Gradation List of Grade-III staff
in the establishment of the respondent No.5 was prepared in the
year 2015 wherein the petitioner Nos.1, 2 & 3 were at Sl. Nos.
42, 43 & 41 respectively and the Respondent Nos.6 & 7 were at
Sl. No.50 & 49 respectively. In the year 2016, another Gradation
List of the Grade-III staff in the establishment of the Respondent
No.5 was prepared wherein the Petitioner Nos.1, 2 & 3 were at
Sl. Nos.38, 39 & 37 respectively and the Respondent No.6 was at
Sl. No.48 and Respondent No.7 was at Sl. No.47. The final
Gradation List of Grade-III staff was prepared and published on
13.06.2017. To the surprise of the Petitioners, the Respondent
No.6 was at Sl. No.39 and the Respondent No.7 was at Sl. No.37
and the Petitioner Nos.1, 2 & 3 were at Sl. Nos.44, 42 & 43
respectively.
5. Upon coming to learn about the said final Gradation List of
the year 2017, the Petitioners submitted a representation to the
Respondent No.5 on 19.06.2017 stating inter-alia that the
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seniority position maintained in the Final Gradation List was
contrary to Rule 12 (i) of the Assam District and Sessions Judges
Establishment (Ministerial) Service Rules, 1987 (for short, 'the
Rules of 1987'). The Respondent Authorities however did not
take any steps in that regard. On the other hand, in the year
2018, another Seniority List was published of the
Sheristadar/UDA/LDA/Copyist/ Computer Typist in the Office of
the Respondent No.5 wherein the Respondent No.7 was at Sl.
No.34; the Respondent No.6 was at Sl. No.36 and the Petitioner
Nos.1, 2 & 3 were at Sl. Nos. 41,39 & 40 respectively.
Subsequent thereto, taking into account the seniority shown in
the Gradation List of 2018, the Respondent Nos.6 & 7 were
promoted to the post of Upper Division Assistant (UDA) on
25.05.2018.
6. At this stage, this Court finds it very pertinent to take note
of that the Respondent No.6 joined the service as a Lower
Division Assistant (LDA) on 28.07.2014 and the Respondent No.7
joined the service as a Lower Division Assistant (LDA) on
23.06.2014. Rule 6(4) of the Rules of 1987 categorically
stipulates that eligibility criteria for promotion from the post of
Lower Division Assistant to the post of Upper Division Assistant is
that the person working in the post of Lower Division Assistant
had rendered not less than five years of service on the first day
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of the year in which the promotion is made. Taking into account,
Rule 6(4) of the Rules of 1987, the Respondent Nos.6 & 7 could
not have been promoted vide the impugned order dated
25.05.2018 as they did not have the basic eligibility criteria sans
any relaxation. This aspect assumes importance as the
Petitioners seek equal treatment on the basis of their seniority to
be granted notional promotion w.e.f. 25.05.2018 when the
Respondent Nos.6 & 7 were promoted to the post of UDA.
7. The Petitioners being aggrieved preferred an Appeal under
Rule 13 of the Rules of 1987. The said Appeal was filed on
18.06.2018. However, the Respondents for best reasons known
to them sat over the Appeal. The Petitioners therefore submitted
a reminder on 13.08.2018. Subsequent thereto, after almost
nearing a year, vide the order dated 11.06.2019, the said Appeal
filed by the petitioners was dismissed. This Court had duly
perused the Appellate order dated 11.06.2019 wherein there is
no reference made in respect to the promotion of the
Respondent Nos.6 & 7. This Appellate order was communicate to
the Petitioners vide the communication issued by the Registrar
(Vigilance) of the Gauhati High Court on 15.06.2019.
8. Subsequent thereto, vide another order dated 17.12.2019,
the Respondent Nos.8 & 9 herein were promoted. It is also
relevant to observe that the Respondent Nos.8 & 9 joined their
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services as Lower Division Assistants on 22.07.2014 and
04.08.2014. It is further seen from the records that another
Gradation List was prepared in the Office of the respondent No.5
of the Grade-III staff wherein the respondent No.7 is at Sl.
No.31; the respondent No.6 is at Sl. No.33; the respondent
Nos.8 & 9 were at Sl. Nos.36 & 37 and the Petitioner Nos.1, 2 &
3 were at Sl. Nos.42, 40 & 41 respectively. It is under such
circumstances, the instant writ petition was filed.
9. The records reveal that this Court vide the order dated
04.03.2020 issued notice. Pursuant thereto, an affidavit-in-
opposition was filed by the respondent Nos.1, 2, 3 & 5 wherein
they stated that the Gauhati High Court had initiated a
centralized recruitment process in the year 2013 by issuing an
advertisement dated 11.04.2013 to fill up 185 posts of Lower
Division Assistants and 102 posts of Copyists/Typists. Clause 1 of
the said advertisement provided that the candidates in their
application would be required to indicate the district for which
they wish to apply and the indicated district would be treated as
a preference only and depending on exigencies, the Gauhati High
Court reserved the right to appoint/transfer a selected candidate
to any subordinate court establishment within the State of
Assam. Reference was made to Clause 6(a) of the advertisement
which provided that one candidate will be allowed to submit one
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application only indicating preference for a post in one district
and Clause 6(b) provided that a post indicated by the candidate
would be treated as his or her preference only and a selected
candidate may be appointed to the post of the LDA or
Copyist/Typist depending on his or her position in the final merit
list or as otherwise decided by the Recruiting Authority. Further
reference was made to Clauses 6(c) and 6(g) as to how the Merit
List would be prepared. It was further mentioned that pursuant
to the said recruitment process, a notification dated 10.10.2013
was issued. This notification as would be seen from Annexure-
R/2 is a Select List, but not an order of appointment. A perusal of
the Select List would show that the Respondent No.7 was at
Serial No.50; the Respondent No.6 was at Serial No.60; the
respondent No.8 was at Serial No.113 and the Respondent No.9
was at Serial No.119 of the Select List for General Candidates.
On the other hand, the Petitioner Nos.1, 2 & 3 were at Serial
Nos.19, 6 & 8 respectively of the Select List for reserved
categories.
10. It was further stated in the affidavit that a notification was
issued on 11.01.2014 by which the place of posting was issued
to the selected candidates. The petitioner No.1 was given the
place of posting at Chief Judicial Magistrate, Udalguri whereas
the petitioner Nos.2 & 3 were given the place of posting in the
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establishment of the Respondent No.5. The respondent No.6 was
given the place of posting in the Office of the Additional Court
No.3-cum-CBI, Kamrup and the respondent No.7 was given the
place of posting at Sub-Divisional Judicial Magistrate, Nazira. The
respondent No.8 was given the place of posting in the Office of
the Munsiff, Karbi Anglong and the respondent No.9 was given
the place of posting in the District & Sessions Judge, Karbi
Anglong. The said places of posting were subsequently modified.
11. Be that it as it may, it is relevant to take note of that the
order of appointment in the case of the petitioners were issued
on 04.03.2014 whereas in the case of the respondent No.7, it
was issued on 16.06.2014; the respondent No.6 on 24.07.2017.
Further to that, the orders of appointment of the respondent
Nos.8 & 9 are 22.07.2014 and 23.07.2014 respectively. The stand
taken by the respondent Nos.1, 2, 3 & 5 is that the respondents
have been put higher in the Gradation List on account of the fact
that they were higher in the Merit List. It is the further case of
the Respondent Authorities as would be seen from the affidavit is
that as per the Merit List, the places of posting were issued.
However, on account of administrative reasons, the orders of
appointment could not be issued to the private Respondents, and
as such, the respondents would senior to the Petitioners taking
into account their position in the Merit List.
Page No.# 11/23
12. The respondent Nos.6 & 7 have filed separate affidavit
adopting the similar stand as had been taken by the official
respondents that they were higher in the Merit List and on
account of no posting being available, the appointment orders
were issued later on for which the respondent Nos.6 & 7 were
entitled to be higher in the Gradation List, and accordingly,
entitled to promotion prior to the Petitioners.
13. This Court heard the instant writ petition on 06.02.2025
wherein a question was raised by this Court taking into account
Rule 6(4) of the Rules of 1987 as to how the respondent Nos.6,
7, 8 & 9 were promoted prior to completion of the five years and
asked the Gauhati High Court to produce any instructions in that
regard. However, inspite of opportunities being granted, no
instructions were placed before this Court. Be that as it may, as
this aspect is not taken as ground, this Court would not detain
itself on this Issue.
14. It is relevant herein to take note of that during the
pendency of the present writ proceedings, the Petitioners have
also been promoted on various dates. Taking into account the
details placed before this Court, the following Chart inserted
which would give a clear picture as regards the Order of
Appointment, Date of Joining and Date of Promotion of the
Petitioners vis-à-vis the private Respondents herein:-
Page No.# 12/23
Sl. No. Date of the Date of Joining Date of Promotion
order of in LDA Cadre to UDA
Appointment
Petitioner No.1 04.03.2014 06.03.2014 24/03/22
Petitioner No.2 04.03.2014 06.03.2014 06.06.2020
Petitioner No.3 04.03.2014 06.03.2014 06.06.2020
Respondent No.6 24.07.2014 28.07.2014 25.05.2018
Respondent No.7 16.06.2014 23.06.2014 25.05.2018
Respondent No.8 22.07.2014 22.07.2014 17.12.2019
Respondent No.9 23.07.2014 04.08.2014 17/12/19
15. In the backdrop of the above, the question which arises for
consideration is as to whether the seniority of the petitioners and
the private respondents in the cadre of the Grade-III in the
establishment of the respondent No.5 should be based on the
basis of the order of the appointment or on the basis of the Merit
List.
16. To decide the said question, this Court finds it relevant to
take note of Rule 12(i) & (ii) of the Rules of 1987 which
categorically stipulates as to how the seniority in the Lower
Division Assistants Cadre and the upper Division Assistants Cadre
are to be maintained. Rule 12(i) & (ii) of the Rules of 1987 are
reproduced herein under:-
"12. (i) In the Lower Division Cadre, the seniority shall be according
to the date of appointment, if the persons join the appointments
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within 15 days of the receipt of the order of appointment: Provided
that in case of a person prevented from joining within the said
period of 15 days by circumstances of a public nature or for reasons
beyond his control, the appointing authority may extend it for a
further period of 15 days. If the period is not so extended, his
seniority shall be determined in accordance with the date of joining.
When however more than one person are appointed on the same
date their inter-se-seniority shall be determined according to their
position in the merit list prepared by the District & Sessions Judge
as mentioned in Note below clause (a) of Sub-rule (5) of rule 6.
Provided further that the inter-se-seniority among Lower
Division Assistants appointed under clause (a), (b) and (c) of
sub-rule (5) of Rule 6 on the same date shall be according to
the following order -
(a) Assistants appointed under clause (a) of Sub-rule (5) of
Rule 6.
(b) Assistants appointed under clause (b) of Sub-rule(5) of
Rule 6.
(c) Assistants appointed under clause (c) of sub-rule (5) of
Rule 6.
(ii). In the Upper Division (including Sheristadar of Munsiff) cadre,
the seniority shall be according to the position in the select list from
which the promotion to posts of Upper Division Assistant is made."
17. From a perusal of the above quoted Rule, it would be seen
that Sub-Rule (i) of Rule 12 of the Rules of 1987 stipulates that
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the seniority in the Lower Division Assistants Cadre shall be
according to the date of the appointment subject to the person
joining the appointment within 15 days of the receipt of the
order of appointment. However, the Appointing Authority may
extend the period of 15 days by another further period of 15
days for circumstances on account of public nature or for reasons
beyond the control. It is further stipulated that if the period is
not extended, the seniority shall be determined in accordance
with the date of joining. Further to that, it is also stipulated that
when more than one person is appointed on the same date, then
only the seniority is to be reckoned on the basis of the position in
the Merit List prepared by the District and Sessions Judge as
mentioned in the Note below Clause (a) of Sub-Rule (5) of Rule 6
of the Rules of 1987. The proviso to Rule 12(i) of the Rules of
1987 further stipulates that the inter-se-seniority amongst those
appointed under Rule 6 (5) (a); Rule 6(5) (b) and Rule 6 (5) (c)
of the Rules of 1987 would be sequential meaning thereby that
those appointed under Rule 6(5)(a) of the Rules of 1987 would
be higher in the seniority list from that of those appointed under
Rule 6(5) (b) of the Rules of 1987 and similarly those appointed
under Rule 6(5)(b) of the Rules of 1987 would be higher from
those appointed under Rule 6 (5) (c) of the Rules of 1987
provided they have been appointed on the same date. The
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proviso to Rule 12 (i) of the Rules of 1987 has no relevance for
the purpose of the instant dispute as the Petitioners and the
private Respondents were appointed on the basis of a single
recruitment process.
18. From a reading of Rule 12 (i) of the Rules of 1987, it is
apparently clear that the seniority is to be reckoned on the basis
of the order of appointment and not on the basis of the Merit
List. The Merit List would only come into the picture when more
than one person is appointed by the same order of appointment.
In that view of the matter, the question of issuance of orders of
posting would have no relevance. It is pertinent to observe
herein that the effect of an order of appointment is that a person
is officially confirmed about his selection for a post, detailing his
job title and the other emoluments pursuant to his appointment.
On the other hand, an order of posting follows an order of
appointment thereby assigning the individual to a specific
location, department or branch where the individual has to report
for duty. Therefore, without an order of appointment, any order
of posting has no relevance.
19. At the cost of repetition, it is observed that Rule 12 (i) of the
Rules of 1987 clearly stipulates about the order of appointment
and not the order of posting. The merit List would only come into
relevance for the purpose of seniority if the order of appointment
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is of the same date and the persons concerned had joined within
15 days from the order of appointment or the additional 15 days
if so granted for the reasons mentioned in Rule 12 (i) of the
Rules of 1987.
20. In fact, the Gauhati High Court in its Notification dated
14.10.2020, which though at a later point of time, had directed
how the seniority position is to be maintained. The said
Notification dated 14.10.2020 is reproduced herein below:-
"THE GAUHATI HIGH COURT AT GUWAHATI
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
NOTIFICATION
No.HC.XXXVII-21/2017/271/R.Cell Dated Guwahati 14th of October, 2020,
The Hon'dle High Court has been pleased to notify that all LDAs,
Copyists, Typists and Computer Typists working in the subordinate courts
of Assam, who possess the minimum educational qualification under the
existing rules, be treated as equivalent for the purpose of promotion to
UDA, irrespective of whether they were selected through the
common/centralized recruitment process or through the recruitment
processes done earlier at the district level.
The appointing authorities, in the subordinate Court establishments of
Assam, are hereby directed to prepare combined gradation lists for LDA,
Copyists, Typists and Computer Typists working in their establishments,
based on the following criteria:
(I) An employee who has joined the service earlier shall be
placed above those who have joined later.
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(II) Inter-se seniority of the employees, who have joined together,
shall be determined by their merit position in the select list and
(III) In all other cases, the inter-se seniority of the employees shall
be decided based on their dates of birth. An employee who is
senior in age shall also be treated as senior in service.
Further, the outcome of the promotional processes which have been
completed till date, shall not be affected by this notification.
By Order.
(R. Baruah)
Registrar (Admin)-cum
In-Charge, Centralized Recruitment"
21. In the backdrop of the above, the analysis of the principles
as regards the fixation of seniority in the Lower Division Cadre as
well as the Notification dated 14.10.2020, if applied to the facts
of the instant case, it would be seen that all the three petitioners
were appointed vide the order dated 04.03.2014 to the Office of
the respondent No.5 and the petitioners thereupon joined on
06.03.2014 within a period of 15 days from the date of their
order of appointment. On the other hand, the respondent No.6's
order of appointment was dated 27.07.2014; the respondent
No.7's order of appointment was 16.06.2014; the respondent
No.8's order of appointment was on 22.07.2014 and the
respondent No.9's order of appointment was on 23.07.2014 and
all these private Respondents joined much later to that of the
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Petitioners. Consequently, the Petitioners therefore ought to have
been higher in the seniority compared to the respondent Nos.6,
7, 8 & 9.
22. In view of the above discussion and analysis, the Gradation
List prepared for the year 2017 (order No.75 dated 13.06.2017);
the Gradation List prepared for the year 2018 (order No.48 dated
25.05.2018); the Gradation List of the year 2019 whereby the
petitioners have been put lower in the seniority from that of the
respondent Nos.6, 7, 8 & 9 are required to be interfered thereby
passing appropriate direction(s) for placing the petitioners above
the private Respondents herein in Gradation Lists so impugned.
23. The petitioners herein have also assailed the order of
promotion of the respondent Nos.6 & 7 dated 25.05.2018 as well
as the order of promotion dated 17.12.2019 given to the
respondent Nos.8 & 9 thereby depriving the petitioners inspite of
they being senior to the respondent Nos.6, 7, 8 & 9.
24. This Court further takes note of Rule 6 (4) of the Rules of
1987 which stipulates that the criteria for selection shall be on
the basis of seniority-cum-merit. At this stage, it is relevant to
observe that when the criteria for promotion is seniority-cum-
merit, the settled principles of law mandates that a senior who
has the minimum requisite merit shall be entitled to promotion
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even though there might be others who are meritorious. It is
also pertinent to observe that the Supreme Court in a recent
judgment in the case of Ravikumar Dhansukhlal Maheta &
Another vs. High Court of Gujarat, reported in 2024 SCC OnLine
SC 972 postulated the following principles of seniority-cum-merit
as under:-
(i) Minimum requirement of merit and suitability which is
necessary for the higher post can be prescribed for the
purpose of promotion.
(ii) Comparative assessment amongst the candidates not
required.
(iii) Seniority of the candidate is not a determinative factor
for promotion but has a predominant role.
(iv) Upon fulfilling the minimum qualifications, promotion
must be based on inter-se seniority.
25. In the instant case from the stand taken by the Respondent
Authorities, nothing could be discerned that the Petitioners
herein did not meet the minimum qualifications. The only ground
for depriving the Petitioners is that their positions are lower in
the Select List from that of the private Respondents which in the
opinion of this Court is violative of Articles 14 and 16 of the
Constitution.
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26. In view of the above, the petitioners herein being senior to
the respondent Nos.6, 7, 8 & 9 were therefore ought to have
been promoted to the post of Upper Division Assistants prior to
the respondent Nos.6, 7, 8 & 9. The depriving of the petitioners
to promotion to the post of Upper Division Assistants prior to
promoting the respondent Nos.6, 7, 8 & 9 to the post of Upper
Division Assistant vide the impugned orders dated 25.05.2018
and 17.12.2018 are therefore in violation to the mandate of
Rules of 1987.
27. As stated above, the Petitioners during the pendency of the
writ proceedings have also been promoted. The Petitioner Nos.2
& 3 were promoted to the post of UDA on 06.06.2020 and the
Petitioner No.1 was promoted on 24.03.2022. Taking into
account that the petitioners have already been promoted to the
post of Upper Division Assistants, in the opinion of this Court,
there is no requirement for setting aside the promotion orders of
the respondent Nos.6, 7, 8 & 9. Be that as it may, it is relevant to
take note of Rule 12 (ii) of the Rules of 1987 which had been
already quoted above. The said Sub-Rule stipulates that the
seniority in the Upper Division Cadre shall be according to the
position in the select list from which the promotion to the post of
Upper Division Assistant is made. In that view of the matter, it is
the opinion of this Court that in order to do complete justice, this
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Court either have to pass appropriate orders granting the
Petitioners notional promotion on the date the Respondent Nos.6
& 7 were promoted or revert the promotion of the private
Respondents to the date the last of the Petitioners were
promoted.
28. This Court had taken note of that in the present
proceedings, only the private respondents are parties. In the
circumstances, this Court reverts back the private respondents, it
would have a cascading effect on the entire promotions so
effected during the period from the date of promotion of the
Respondent Nos.6 & 7 till date which not only would impact the
parties to the present proceedings, but to others also. Under
such circumstances, it is the opinion of this Court that if the
Petitioners herein are granted notional promotion alongiwth
consequential financial benefits, w.e.f. the date the Respondent
Nos.6 & 7 were promoted, the interest of justice would be
served. It is also the opinion of this Court that with the
promotion given to the Petitioners w.e.f. 25.05.2018, it should
also be deemed that the Petitioners joined the service in the
Cadre of UDA prior to the Respondent Nos.6 & 7. This is required
else the Petitioners would lose the consequential seniority in the
UDA Cadre.
29. Considering the above, the instant writ petition stands
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disposed of with the following observations and directions:-
(i) The Gradation Lists of Grade-III in the Office of the
respondent No.5 for the year 2017; 2018 and 2019 whereby
the petitioners have been put below the respondent Nos.6,
7, 8 & 9 is interfered with to that extent.
(ii) The Respondent Authorities, more particularly the
respondent No.5 is directed forthwith to rectify the
Gradation List thereby putting the petitioners above the
respondent Nos.6, 7, 8 & 9.
(iii) This Court though held above that the promotion of the
respondent Nos.6 & 7 vide the order dated 25.05.2018 and
respondent Nos.8 & 9 vide the order dated 17.12.2019
violative of Articles 14 & 16 of the Constitution on account
of depriving the petitioners of their promotion but in the
present facts is not inclined to interfere with the orders
dated 25.05.2018 and 17.12.2019 on the ground that in the
meantime, the Petitioners have already been promoted and
the conundrum created by the Respondent Authorities can
be resolved by way of granting notional promotion to the
Petitioners with consequential financial benefits and
seniority.
(iv) (a) The respondents, more particularly the official
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respondents herein are directed to pass appropriate
order(s) granting the Petitioners herein notional promotion
w.e.f. 25.05.2018 along with all such benefits deeming that
the Petitioners have been promoted to the Cadre of UDA
w.e.f. 25.05.2018. Further to that, it shall be deemed that
the Petitioners have joined their services in the post UDA
w.e.f 25.05.2018.
(b) The Gradation Lists of LDA and UDA be prepared in
terms with observation made herein above.
(c) The arrears and further entitlements of the petitioners
be paid by the respondent authorities within the period of 4
(four) months from the date a certified copy of the instant
judgment and order is submitted before the Respondent
No.5.
JUDGE
Comparing Assistant
