Dipesh Sharma And Anr vs The Commissioner Of Industries And Commerce And 3 Ors
- Court
- Gauhati High Court
Page No.# 1/21
GAHC010187532023
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4876/2023
DIPESH SHARMA AND ANR
S/O- LATE RAMJI SHARMA, R/O- VILL. AND P.O. MEHERPUR, KUWARPAR,
SILCHAR ,DIST. CACHAR, ASSAM
2: ZABED BARBHUIYA
S/O- JALAL UDDIN BARBHUIYA
R/O- PAIKAN
P.O. GUMRA
DIST. CACHAR
ASSA
VERSUS
THE STATE OF ASSAM AND 4 ORS
TO BE REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM, THE
DEPARTMENT OF INDUSTRIES, COMMERCE AND PUBLIC ENTERPRISE,
ASSAM, DISPUR, GUWAHATI-6.
2:THE COMMISSIONER OF INDUSTRIES AND COMMERCE
ASSAM
UDYOG BHAWAN
BAMUNIMAIDAN
GUWAHATI-22.
3:THE GENERAL MANAGER
DISTRICT INDUSTRIES AND COMMERCE CENTRE
SILCHAR
DIST. CACHAR
ASSAM
4:ARIF HUSSAIN CHOUDHURY
S/O- LATE FOZLUL HAQUE CHOUDHURY
R/O- VILL.- SONABARIGHAT
Page No.# 2/21
P.O. SONABARIGHAT
DIST. CACHAR
ASSAM
PIN- 788013.
5:MINAKSHI JIDUNG
D/O- SHRI KALYAN JIDUNG
R/O- VILL.- DHUMKAR
CHERSI
P.O. BORKHOLA
DIST. CACHAR
ASSAM
PIN- 788110
Advocate for the Petitioner : MR. K A MAZUMDER, MR. J LASKAR,MS. A DAS,MR E
AHMED
Advocate for the Respondent : SC, INDUSTRIES AND COMMERCE, MR REZABUL HOQUE,G.
GOSWAMI (R-4,5),MR H I CHOUDHURY (R-4,5)
Linked Case : WP(C)/2357/2022
DIPESH SHARMA AND ANR
S/O- LATE RAMJI SHARMA
R/O- VILLAGE AND P.O- MEHERPUR
KUWARPAR
SILCHAR
DIST- CACHAR
ASSAM
2: ZABED BARBHUIYA
S/O- JALALUDDIN BARBHUIYA
R/O- VILLAGE PAIKAN
P.O- GUMRA
DIST- CACHAR
ASSAM
VERSUS
THE COMMISSIONER OF INDUSTRIES AND COMMERCE AND 3 ORS
UDYOG BHAWAN
BAMUNIMAIDAM
GUWAHATI-22
Page No.# 3/21
2:THE GENERAL MANAGER
DIST. INDUSTRIES AND COMMERCE CENTRE
SILCHAR
DIST- CACHAR
ASSAM
3:ARIF HUSSAIN CHOUDHURY
S/O- LATE FOZLUL HAQUE CHOUDHURY
R/O- VILLAGE AND P.O- SONABARIGHAT
DIST- CACHAR
ASSAM
PIN-788013
4:MINAKSHI JIDUNG
D/O- KALYAN JIDUNG
R/O- VILLAGE DHUMKAR
CHERSI
P.O- BORKHOLA. DIST- CACHAR
ASSAM
PIN-788110
------------
Advocate for : MR. J LASKAR
Advocate for : SC
INDUSTRIES AND COMMERCE appearing for THE COMMISSIONER OF
INDUSTRIES AND COMMERCE AND 3 ORS
– B E F O R E –
HON’BLE MR. JUSTICE SOUMITRA SAIKIA
Advocate for the petitioner : Mr. J. Laskar
Advocate
Advocate for the respondents : Mr. D. Borah
GA, Assam
Ms. G. Goswami
Sr. Advocate, assisted by
Mr. H. I. Choudhury
Date on which judgment is reserved : 27.05.2026
Page No.# 4/21
Date of pronouncement of judgment : 25.08.2026
Whether the pronouncement is of the
operative part of the judgment? : No.
Whether the full judgment has been
pronounced? : Yes
JUDGMENT AND ORDER (CAV)
. 08 25 . 2026
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.
2. 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.
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3. 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
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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.
4. 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,
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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.
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
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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.
6. 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
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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.
7. 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.
8. 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
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petitioners filed a representation before the General Manager, DICC, wherein
they were called upon for submission of reply to the higher authority.
9. 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
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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.
10. 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
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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.
11. 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.
12. 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
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antedated from a period when he was not in a part of the cadre.
13. 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.
14. 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.
15. 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
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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.
16. After examining the Assam Industries Service Rules, 1997, it is seen that
the rules defined the cadre as under: 3. Classes and cadres :-
3. Classes and cadres :-
(1) The service shall consist of the following classes and
cadres:-
(a) Class - I
It shall include the cadres of-
(i) Additional Director of Industries;
(ii) Joint Director of Industries / General Manager, District
Industries Centre
(iii) Deputy Director of Industries / Functional Manager,
District Industries Centre/ Project Manager. District Industries
Centre and its equivalent posts',
(iv) Assistant Director of Cottage Industries and its equivalent
posts.
(b) Class - II
It shall include the cadre of Superintendent of Industries /
Assistant Manager, District Industries Centre / Assistant Industries
officer and its equivalent posts.
Page No.# 15/21
(2) The service may also include :-
(a) any post equivalent to a post in any of the cadres
mentioned in rule.3(1); and
(b) any cadre or post laid down by Government to be
included in any cadre of Service
(3) The posts equivalent to posts in different cadres of the
services and included in the respective cadres as on the date of
commencement of these rules are given in Schedule I.
17. 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:
“ Service
3.(1) The service shall comprise of the following categories of
posts-
(i) Revenue Sheristadar;
(ii) Sadar Head Assistant; Subdivisional Head Assistant;
(iii) Supervisory Assistant;
(iy) Sadar Nazir;
(v) Upper Division Assistant, Subdivisional Nazir;
(vi) Lower Division Assistant.
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(2) Each of the categories of posts in sub-rule (1) shall form
an independant cadre Members of a lower cadre shall have no
claim for appointment to any of the higher cadres except in
accordance with the provisions made in these rules.”
18. 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.
19. 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.
20. 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:
“ Seniority
11. (i) In the Lower Division Cadre, the seniority shall be
according to the date of appointment, if the persons join the
appointments within 15 days of the receipt of the order of
appointment:
Provided that in case of a person is prevented from joining
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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 Deputy
Commissioner as mentioned in Note below clause (a) of sub-rule
(6) of rule 6:……………..................”
21. 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.
22. 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
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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.
23. 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.
24. 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:
“ O.M. No. ABP.51/63/1
Sub:- Principles for fixation of seniority.
In the matter of fixation of seniority, the following instructions,
incorporating all the principles enunciated in the past, are issued
for the guidance of all Departments. These instructions will not,
however, apply if there are specific rules on this matter.
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1. Appointments made through the Assam Public
Service Commission:-………………………………………….
2. Appointments made under Regulations 3(e) and
3(f) of the Assam Public Service Commission (Limitations of
Functions) Regulations and later regularised through the Assam
Public Service Commission:-
……………………………………………..
3. Appointments outside the purview of the Assam Public
Service Commission:-
(i) Seniority of candidates selected in one batch should be
fixed according to the merit list prepared by the Appointing
Authority / Employment Exchanges at the time of initial
appointment, if they join their appointments within 15 days. (If a
candidate is prevented from joining within this period by
circumstances of a public nature and beyond his control the period
may be extended by the Appointing Authority. In that case the date
of appointment will continue to govern seniority. If the period is not
so extended, the date of joining will determine seniority).
(ii) Persons appointed from other establishments and their
seniority vis-à-vis existing persons in the establishments :-
Inter-se-seniority of persons appointed from other
establishments and the existing persons promoted in an
establishment in a grade on the same date should be according to
the following orders :-
(i) Existing persons promoted;
(ii) Persons appointed from other establishments.”
25. 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
Page No.# 20/21
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.
26. 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
th
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.
27. 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.
28. In K. Meghachandra Singh vs. Ningam Siro reported in (2020) 5 SCC 689,
Page No.# 21/21
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.
29. 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.
30. Interim order(s), if any, stands vacated.
31. Pending I.A(s), if any, are also dismissed.
32. The records placed before the Court are returned back to Mr. D. Borah,
learned Government Advocate.
JUDGE
Comparing Assistant