Dipesh Sharma & Anr. vs The State Of Assam & Ors.

Heard Mr. J. Laskar learned counsel for the petitioner. Also heard Mr. D. Borah, learned Government Advocate for the Respondents, Ms. G. Goswami, learned Senior Advocate appearing for Respondents No. 4 and 5 assisted by Mr. H. I. Choudhury, learned counsel for the respondents.

In both the writ petitions, the petitioners and the respondents are same. WP(C) No. 2357/2022 has been filed by the petitioners, praying for setting aside and quashing the final gradation list issued on 14.03.2022, whereby the Private Respondents No. 3 and 4 are shown to be senior to the writ petitioners. WP(C) No. 4876/2023 has been filed by the petitioners, praying for a direction for setting aside the impugned seniority-cum-merit list dated 31.07.2020 issued by Respondent No. 3 and praying for a further direction to the State Respondents for fixation of the seniority of the petitioners vis-à-vis the Private Respondents as per the staff pattern dated 01.04.2019 which was prepared by the Respondent No. 3. Both these writ petitions were listed before the Court and were taken up for hearing and disposed of together.

The facts essential for deciding the lis between the parties are that both the petitioners and the private respondents submitted their candidature for appointment to the post of Junior Assistant in the Office of the District Industries Commerce Centre, Cachar, Silchar. While the writ petitioners submitted their candidatures in response to the advertisement dated 17.01.2016, whereas the Private Respondents No. 3 and 4 submitted their candidature pursuant to the advertisement dated 09.02.2016. The writ petitioners were declared successful in the written examination as well as in the viva-voce. Similarly, the Private Respondents No. 3 and 4 were also declared successful in the written test and the viva-voce conducted by the State Respondents. Thereafter, by a notice th dated 26 February, 2016, the General Manager, District Industries and Commerce Centre, Cachar Silchar published the roll numbers of the petitioners and the Respondent No. 4 as the candidates who had been selected by the concerned Selection Committee for recruitment to the post of Junior Assistant. Insofar as the petitioners are concerned, their roll numbers were published with reference to the dates of written test and the practical and oral test, which were shown to have been held on 10.02.2016 and 24.02.2016 respectively. Similarly, insofar as the private respondents were concerned, their roll numbers were published by the said notice with reference to the dates of written test and the practical and oral test, which were shown to have been held on 20.02.2016 and 26.06.2016 respectively. All these four candidates were thereafter appointed as Junior Assistant in the establishment of District Industries and Commerce Centers, Cachar, Silchar by separate appointment th orders dated 29 February, 2016. All the appointment orders were issued on the same date. The writ Petitioner No. 2 belongs to OBC category, whereas Writ Petitioner No. 1 belongs to the General Category. Similarly, the Private Respondent No. 4 in WP(C)/4876/2023 was appointed as a General Category whereas the Private Respondent No. 5 in the said writ petition was appointed in the ST(H) category. The merit-cum-seniority of these candidates was also published by the General Manager, District Industries & Commerce Center, Cachar, Silchar, showing the total marks obtained by each of the candidates. The Private Respondent No. 4 and 5 were placed at Serial Nos. 1 and 2 respectively, whereas the Writ Petitioners No. 1 and 2 were placed at Serial Nos. 4 and 3 respectively. While the writ Petitioner No. 1 was shown to have secured total marks of 69.65, Writ Petitioner No. 2 had secured a total of 81.65 marks. The total marks secured by the Private Respondents No. 4 and 5 in WP(C) No. 4876/2023 were 87.77 and 83.95 respectively.

According to the writ petitioners by a communication dated 30.03.2019, the General Manager, District Industries & Commerce Centers, Cachar, Silchar had forwarded a communication to the Commissioner of Industries and Commerce regarding the present status of officers and staff. The said communication contained an enclosure wherein the Private Respondent No. 4 was shown at Serial No. 2, the writ Petitioner No. 1 and Writ Petitioner No. 2 were shown at Serial No. 3 and 1 respectively and the Private Respondent No. 5 was shown at Serial No. 4. The dates of joining in the present posting of all the said candidates were on the same date i.e. 01.03.2016. According to the writ petitioners the said list was prepared on the basis of the date of birth of the candidates, with the candidate senior-most in terms of the date of birth being placed at Serial No. 1. According to the writ petitioners, in the Attendance Register maintained in the Office, the name of the Petitioner No. 1 was initially placed at Serial No. 1, however subsequently it has come to its notice that it had been placed at Serial No. 3, therefore he submitted a representation before the General Manager, DICC vide a communication dated 26.04.2021, seeking due correction. It is the grievance of the petitioners that, without considering the said representation, this seniority position was altered by the General Manager, DICC, by preparing a merit-cum-seniority list of the newly appointees as Junior Assistant of the DICC, Cachar, whereby the name of the Private Respondent No. 4 was shown at Serial No. 1 followed by Private Respondent No. 5. The names of Petitioner No. 2 and Petitioner No. 1 were shown at Serial No. 3 and 4 respectively. Being aggrieved, the writ petition, being WP(C) No. 4617/2023 was filed by the petitioners, which subsequently came to be withdrawn with liberty. According to the petitioners this seniority-cum-merit list dated 31.07.2020 was prepared illegally and the Respondent Department was taking all steps to fill up the next higher post by way of promotion by relying upon the seniority list prepared by the authorities on 31.07.2020. According to the writ petitioners this was completely contrary to actual position of facts and had, therefore prejudiced the writ petitioners, as it sought to take away their rightful claim of seniority over the Private Respondents No. 4 and 5.

According to the writ petitioners, they had submitted their candidature pursuant to the advertisement dated 17.01.2016 for filling up of two vacancies of Junior Assistant. The written test was held on 10.02.2016 and a computer test was held on 24.02.2016. The Private Respondent No. 4 and 5 however, participated in a selection process undertaken pursuant to a subsequent advertisement published dated 09.02.2016. They had appeared in the written test on 20.02.2016, and the oral test was held on 26.02.2016, pursuant to which the Private Respondents No. 4 and 5 were selected. It is the contention on behalf of the writ petitioners that the results of the tests undergone by the writ petitioners and the private Respondents No. 4 and 5 were declared on two separate dates. According to the writ petitioners, since they had successfully cleared the process undertaken pursuant to the advertisement dated 17.01.2016 and their selection was separately published, as opposed to the selection of the Respondent No. 4 and 5, whose selection was published subsequently in connection with the advertisement dated 09.02.2016, the entire selection process of the writ petitioners and the private respondents was undertaken through two completely different selection process, which were initiated by publishing two different advertisement. The learned counsel for the petitioners therefore, submits that the impugned seniority-cum-merit position list prepared by the Respondent Department was done behind the back of the writ petitioners, without putting them to notice, and that the seniority position showing Private Respondents No. 4 and 5 above the writ petitioner could not have been done in view of fact that two separate selection process was undertaken, initiated by publishing two separate advertisement. It is, therefore, submitted that the seniority-cum-merit list dated 31.07.2023 is not sustainable in the eye of law and, therefore, the same ought to be set aside and quashed. It is submitted that the said seniority-cum-merit list was prepared by the Respondent No. 3 without affording any opportunity to the petitioners and, therefore, the seniority of the writ petitioners ought to be re-fixed above the Private Respondents No. 4 and 5.

It is further submitted that, as per the Office Memorandum No. ABP.51/63/1 dated 05.02.1964, issued by the Personnel Department, the principles regarding fixation of seniority have been clearly laid down therein. In terms of the said circular, the seniority of candidates selected in one batch should be fixed according to the merit list prepared by the appointing authority or the Employment Exchange at the time of their initial appointment if they joined their appointments within 15 days. It is submitted that since the petitioners were selected pursuant to the advertisement dated 17.01.2016 and the Private Respondents No. 4 and 5 were selected pursuant to the advertisement dated 09.02.2016, they belong to two separates batches. Therefore, the petitioners, having been selected pursuant to the earlier advertisement, they would rank senior to the Private Respondents No. 4 and 5, and consequently the impugned merit-cum-seniority list dated 31.07.2020 is contrary to the said circular and should, therefore, be interfered with, set aside and quashed, and the Respondents be directed to prepare a seniority list showing the petitioners senior to the Private Respondents No. 4 and 5.

The learned Senior Counsel has also referred to Government of India Office Memorandum dated 13.08.2021, wherein a similar provisions is provided at Paragraph No. 7(g) to the effect that the direct recruits or the promotees who have been appointed or joined as a result of an earlier selection shall be placed senior in the seniority list to those appointed as a result of a subsequent selection. Referring to the said provision, it is submitted that the seniority of the candidates will have to be determined as per the date of publication or announcement of results and the candidates whose results were announced earlier shall rank senior to the candidate whose results were announced later. It is submitted that the writ petitioners had assailed the final gradation list dated 14.03.2022 for the post of Junior Assistant by filing WP(C) No. 2357/2022. However, by the present writ petition, they have assailed the merit-cum-seniority list dated 31.07.2020, which according to the petitioners, forms the basis on which the final gradation list dated 14.03.2022 has been prepared. Therefore the subsequent writ petition had to be filed.

The writ petitioners have also filed an additional affidavit, wherein it is contended that pursuant to notice being issued in the writ petition, the Additional Director, DICC of the Office of the Industries and Commerce issued an approval letter to the General Manager, DICC, Cachar for resolving the issues relating to the Gradation List of Junior Assistants in terms of the provisions of the Office Memorandum No. ABP.51/63/1 dated 05.02.1964. In pursuance thereof, the petitioners filed a representation before the General Manager, DICC, wherein they were called upon for submission of reply to the higher authority.

Mr. D. Borah, learned State Respondents representing Respondents No. 1, 2 and 3 disputes the contention raised by the writ petitioners. The State Respondents has filed their affidavit-in-opposition, whereby the averments made in the writ petition have been disputed. According to the State Respondents the advertisement dated 17.01.2016 was issued in respect of the vacancies arising in the Office of the DICC, Cachar, Silchar. After that further vacancies arose in the said Office and, as a consequence thereof, a separate advertisement dated 09.02.2016 was issued. It is submitted that although separate selection process was undertaken by holding written tests, viva-voce and computer test, the th results were declared on the same date namely 26/29 February, 2016 and on the same day, the appointment orders were also issued to all the four candidates. All the four candidates, namely the writ petitioners and the Private Respondents No. 4 and 5 also joined on the same day, i.e. 01.03.2016. It is the contentions of the learned counsel for the respondents that where a combined select list was published on the same date in respect of both the selection process, and the appointment letters were also issued on the same day, with all the candidates joining on the same date, there is no question of claiming seniority merely on the basis that the written test and examination conducted pursuant to the advertisement dated 17.01.2016 held at an earlier point in time then the written test, viva-voce and computer test conducted with reference to the advertisement dated 09.02.2016 as this is so because a combined select list for both the selection process was published on the same date and the writ petitioners were also appointed on the same date. It is submitted that it is not a case that pursuant to the appointment letters which was issued to the writ petitioners and the private respondents, the Private respondents had joined beyond the period of 15 days from the date of issuance of the appointment orders. All the candidates namely, both the petitioners and the Private Respondents No. 4 and 5 had joined on the same date. It is therefore submitted that the claims made by the writ petitioners that they had submitted their candidature in response to the first advertisement, they should rank senior to the private respondents who had submitted their candidature in response to the second advertisement is contrary to the fact. It is, therefore, submitted that the writ petition, being devoid of merit, the same should be dismissed as the claims made by the writ petitioners are contrary to the facts and do not disclose any violation of the applicable rules.

Ms. G. Goswami, learned counsel appearing for Respondents No. 4 and 5 submits that the private respondents have also filed their affidavit, contesting the claims made by the writ petitioners. It is the contention of the private respondents that, while two separate advertisements were issued and the petitioners and the private respondents had submitted their candidature in response to two separate advertisement and the written test, viva-voce and computer test in respect of the selections under both the advertisements were also held on separate dates, the fact remains that the results of both the selection process in connection to both the said advertisements were published th by way of a combined select list dated 26/29 February, 2016. It is the contention of the private respondents that the Private Respondent No. 4 had secured the highest marks i.e. 87.77, whereas the Private Respondent No. 5 had secured the second highest marks i.e. 83.95, while the Petitioner No. 2 had secured the third highest marks i.e. 81.65 and the Petitioner No. 1 had secured 69.65 marks, and as a consequence thereof the Private Respondent No. 4 and 5 were placed at Serial No. 1 and 2 respectively and the writ Petitioner No. 2 was placed at Serial No. 3 and the writ Petitioner No. 1 was placed at Serial No. 4. The learned Senior Counsel has referred to the Assam Ministerial District Establishment Service Rules, 1967 to submit that the seniority in the post of Lower Division Cadre, which is Junior Assistant, shall be determined according to the date of appointment, provided if the persons join their appointments within 15 days of receipt of the order of appointment, and where more than one person joins on the same date, then their seniority position shall be determined as per the merit list prepared by the Deputy Commissioner.

The learned Senior Counsel appearing for the Respondents No. 4 and 5 submits that insofar as the Office of the DICC, Cachar is concerned, the Assam Ministerial District Establishment Service Rules, 1967 is to be followed for the post of Junior Assistant. Accordingly since all the petitioners and the private respondents had joined service pursuant to their appointment orders and had joined on the same date, i.e. 01.03.2026, their seniority was determined in terms of the merit list, which was also published on the same day. Since the Respondents No. 4 and 5 had secured higher marks than the writ petitioners, they were ranked senior to the petitioners which are also provided for under the Rules. Accordingly, there is no infirmity in the seniority list which was published, and the claims of the writ petitioners are not maintainable, and both the writ petitions ought to be dismissed and the Respondent Department be permitted to proceed further with the process promotion to the next higher post.

Referring to the judgment of K. Meghachandra Singh vs. Ningam Siro reported in (2020) 5 SCC 689, it is submitted by the learned Senior Counsel that the seniority of an appointee shall be determined only from the date on which he/she becomes a part of the cadre. The claim of a candidate cannot be antedated from a period when he was not in a part of the cadre.

The learned counsel for the parties have been heard, pleadings available on the record have been carefully perused. The learned Government Advocate has also placed before the Court the relevant records pertaining to the selection process. Records produced by the Government have also been carefully perused.

There is no dispute on facts that the writ petitioners and the private respondents had submitted their candidature in response to two separate advertisements. The writ petitioners submitted their candidature pursuant to the advertisement dated 17.01.2016, whereas the private respondents had submitted their candidature pursuant to the advertisement dated 09.02.2016. The written examination, viva-voce and computer test were also held on two separate dates namely 10.02.2016; 24.02.2016 & 20.02.2016; 26.02.2016 respectively. However, from the pleadings before the Court it appears that there th is a combined select list dated 26/29 February, 2016 which was published by the Department, showing the names of the selected candidates, namely the writ petitioners in respect of the advertisement dated 17.01.2016 and the private respondents in respect of the advertisement dated 09.02.2016. Thereafter on th 29 February, 2016 separate appointment orders were issued to both the writ petitioners and the private respondents, and all the four candidates had joined on the same date, which is 01.03.2016.

A careful scrutiny of the pleadings filed by the petitioners do not reveal that insofar as the advertisement dated 17.01.2016 is concerned, pursuant to which the petitioners had submitted their candidature and were selected, a separate select list was published. Therefore, from the pleadings it is clear that in respect of the selections conducted with reference to both the advertisement i.e. advertisement dated 17.01.2016 and the advertisement dated 09.02.2016, a th combined select list dated 26/29 February, 2016 was published. While according to the writ petitioners, the rules governing the services of the petitioners are the Assam Industries Service Rules, 1997, whereas according to the respondents since the post in which the petitioners and the private respondents were serving are ministerial post, they are governed under the Assam Ministerial District Establishment Service Rules, 1967.

After examining the Assam Industries Service Rules, 1997, it is seen that the rules defined the cadre as under: 3. Classes and cadres :-

The relevant provisions of the Service Rules as extracted above reveal that the service rule pertain only to a cadre mentioned under Rule 3, which is Class I and Class II. Neither of these classes includes any post of Junior Assistant or Senior Assistant. On the other hand under the Assam Ministerial District Establishment Service Rules, 1967 the classes and the cadres under Rule 3 are as follows:

It is therefore, seen that under the Assam Ministerial District Establishment Rules, 1967, the posts to which the petitioners and the private respondents were appointed is shown as a part of the categories of posts mentioned under Rule 3, namely Lower Division Assistant, which was subsequently re-nomenclatured as Junior Assistant.

Rules 6(6) of the Assam Ministerial District Establishment Rules, 1967 relate to recruitment to the post of Lower Division Assistant, which is subsequently re-nomenclatured as Junior Assistant. Under the said rule, the recruitment is to be made by way of a direct recruitment on the basis of competitive examination conducted by the Deputy Commissioner at the beginning of each year. Since these rules are adopted by the DICC, under which the recruitment process was undertaken, it is the competent authority under the DICC namely, the General Manager, who has the authority to conduct direct recruitment on the basis of a competitive examination.

Rule 11 is relevant for the purposes of the present case, as it lays down the procedure for determining the Seniority. Rule 11(i) is extracted below:

A perusal of the Rule reflects that seniority is to be reckoned from the date of appointment if the selected person joins within 15 days from the date of receipt of the appointment orders. However, where more than one person is appointed on the same date, their inter-se seniority is to be determined as per their position in the merit list as prepared by the Deputy Commissioner, which insofar as the DICC, Cachar is concerned will be the General Manager.

While the manner in which the selection process was conducted raises some concern, inasmuch as under Rule 6(6) there is a note which reflects that the Deputy Commissioner is to call for applications to fill up vacancies of any kind likely to occur in the course of the year in the respective establishments, and such step is to be taken by the Deputy Commissioner at the beginning of each year. According to the DICC, if this Rule is adopted or is applicable in the case of appointment of Junior Assistant under the DICC, then the competent authority under DICC having issued the first advertisement dated 17.01.2016, ought to have reflected all the vacancies available to be filled up by way of the competitive examination. However, it appears that, pursuant to the issuance of the first advertisement and the conduct of the written test, subsequent vacancies arose, which were sought to be filled up by way of the second advertisement. The pleadings filed on behalf of the Respondent Authority do not reveal the circumstances under which the subsequent vacancies arose, requiring the Department to publish a fresh advertisement for filling up the same. Such a process is not found to be in consonance with the Rules or at least with the spirit of the Rules.

Be that as it may, the petitioners and the private respondents had submitted their candidatures in response to two separate advertisement dated 17.01.2016 and 09.02.2016 respectively. Separate examinations, comprising written tests, viva-voce and computer tests were held in respect of the selection process undertaken pursuant to both the advertisements. However, the select list that was published is a combined select list, which reflects the names of the selected candidates under both the advertisements.

While the writ petitioners attempt to project a case that, having appeared in the first selection process, they are to be ranked senior to the Private Respondents No. 4 and 5 as per the Office Memorandum No. ABP.51/63/1. However, the said Office Memorandum also provides that the said Office Memorandum is applicable only if there are no specific rules on this aspect. The relevant portion of the said Office Memorandum in connection with appointments outside the purview of Assam Public Service Commission is extracted below:

A careful reading of the said Office Memorandum clearly reveals that this Office Memorandum is applicable only in the absence of there being specific rules. In any view of the matter, the said Office Memorandum also does not lay down that a candidate will accrue any right of seniority merely by appearing in an earlier batch in the absence of any select list. A careful reading of the Clause 3(i) of the said Office Memorandum reveals that the seniority of candidates selected in one batch should be fixed according to the merit list prepared by the appointing authority.

In the facts of the present proceedings, it is clear that although, pursuant to the first advertisement dated 17.01.2016, a selection process was undertaken, no separate select list was published showing the selection of the writ petitioners. From the facts, it is clear that in respect of the selections undertaken pursuant to both the advertisement, a combined select list dated 26/29 February, 2016 was published, wherein the names of the writ petitioners and the private respondents were shown vis-à-vis the dates of the written test, viva-voce and computer test in which they had appeared. Therefore, the said Office Memorandum has no application to the facts of the present case. The Rules of 1967, more particularly Rule 11 thereof, for determining seniority, will be applicable in facts of the case, which provides that where more than one person is appointed on the same date, their inter-se seniority shall be determined as per their position in the merit list prepared by the Deputy Commissioner, etc.

There is no dispute that the private respondents had secured higher total marks then the writ petitioners. Therefore, in terms of the merit list prepared, the private respondents, notwithstanding having appeared in the selection process in connection with the second advertisement will rank higher seniority than the writ petitioners, since a combined select list was published by the Respondent Authorities showing that the private respondents have secured higher marks than the writ petitioners.

In K. Meghachandra Singh vs. Ningam Siro reported in (2020) 5 SCC 689, the Apex Court held that a person cannot claim seniority prior to the date of being born into the cadre. The Apex Court held that seniority cannot be claimed from a date when the incumbent is yet to be born in the cadre.

In that view of the mater, this Court does not find any merit in the claims being made by the writ petitioner. Accordingly, both this writ petitions stands dismissed.

Interim order(s), if any, stands vacated.

Pending I.A(s), if any, are also dismissed.

The records placed before the Court are returned back to Mr. D. Borah, learned Government Advocate.