Page No.# 1/19 GAHC010117392020 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/3455/2020 PRAMILA HAZARIKA W/O- SHRI LAKSHMI PRASAD SARMAH, R/O- VILL- SONARIGAON (KAMARBORI), P.O. DOLICHUBA, P.S. MORIGAON, PIN- 781205 VERSUS THE STATE OF ASSAM AND 3 ORS REP. BY THE SECY., JUDICIAL DEPTT., DISPUR, GHY-06 2:THE DISTRICT AND SESSIONS JUDGE MORIGAON DIST.- MORIGAON PIN- 782105 3:THE CHIEF JUDICIAL MAGISTRATE MORIGAON DIST.- MORIGAON PIN- 782105 4:SAIDUL ISLAM HEAD ASSTT. IN-CHARGE OFFICE OF THE CHIEF JUDICIAL MAGISTRATE MORIGAON DIST.- MORIGAON PIN- 78210 Page No.# 2/19 BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH For the Petitioner(s) : Mr. S. Banik, Sr. Advocate Ms. F. Begum, Advocate For the Respondent(s) : Mr. H. K. Das, SC, GHC Mr. N. K. Sarmah, Advocate Mr. J. K. Goswami, Govt. Advocate Date on which judgment is reserved : NA Date of pronouncement of judgment : 23.07.2026 Whether the pronouncement is of the Operative part of the judgment? : Yes Whether the full judgment has been Pronounced? : No JUDGMENT AND ORDER (ORAL) Heard Mr. S. Banik, the learned Senior Counsel assisted by Ms. F. Begum, the learned counsel appearing on behalf of the Petitioner. Mr. H. K. Das, the learned Senior Counsel as well as the Standing Counsel of the Gauhati High Court assisted by Mr. N. K. Sarmah, the learned counsel appears on behalf of the Respondent Nos.2 & 3. None appears on behalf of the Respondent No.4. As regards the Respondent No.1, no Page No.# 3/19 submission has been put forward. 2. The instant writ petition has been filed by the Petitioner being aggrieved by the Resolution dated 09.07.2020 by which review Departmental Promotion Committee (DPC) resolved that the Petitioner is not entitled to promotion to the post of Supervisory Assistant, and as such, the question of granting the consequential financial benefit to the Petitioner did not arise. 3. The brief facts which led to the filing of the present writ petition are that the Petitioner herein was appointed to the post of Lower Division Assistant in the establishment of the Chief Judicial Magistrate, Morigaon on 01.08.1977. The Petitioner was promoted to the post of Upper Division Assistant on 04.12.1992, and since then, the Petitioner was working in the said capacity till her superannuation on 31.05.2015. 4. On 21.11.2013, the Respondent No.3 issued an advertisement inviting applications from amongst the Upper Division Assistants in the appropriate pay grade for filling up the vacant post of Head Assistant under the establishment of the Respondent No.3. The Petitioner along with one Sri Kanak Ch. Saikia were the only applicants who applied for promotion to the post of Head Assistant. However, Sri Kanak Ch. Saikia was selected and promoted to the post of Head Assistant of the Page No.# 4/19 establishment. Resultantly, the Petitioner being aggrieved filed a writ petition before this Court which was registered and numbered as WP(C) No.3852/2014. During the pendency of the said writ petition, the post of Head Assistant again fell vacant in view of the retirement of Sri Kanak Ch. Saikia. 5. A further perusal of the writ petition reveals that the Respondent No.4 was promoted to the post of Supervisory Assistant vide the order dated 25.02.2015 which was lying vacant, and thereafter, vide an order dated 27.02.2015, the Respondent No.4 was allowed to hold the charge of Head Assistant. The promotion of the Respondent No.4 to the post of Supervisory Assistant vide the order dated 25.02.2015 was put to challenge by the Petitioner in WP(C) No.1721/2015. The said writ petition being WP(C) No.1721/2015 was dismissed vide the judgment and order dated 21.07.2017 passed by the learned Coordinate Bench and the promotion of the Respondent No.4 to the post of Supervisory Assistant was upheld. 6. Being aggrieved, the Petitioner preferred a Writ Appeal which was registered and numbered as WA No.15/2018. 7. The Writ Appeal thereupon was disposed of by the learned Division Bench of this Court vide the order dated 27.02.2019. The relevant portion of the judgment of the learned Division Page No.# 5/19 Bench is reproduced herein under:- “ In view of our conclusion that the order dated 25.7.2007 ought not to have been taken into consideration as it had spent itself, the order dated 25.2.2015 declining promotion to the appellant on that ground cannot be justified. The question therefore is as to whether in such circumstance promotion of respondent No.4 is to be set aside and as to whether the appellant should be directed to be promoted. In the instant case, as noticed, the reason put forth was also that the ACRs of the appellant for the year 2009 to 2013 had certain adverse entries. In that view, the comparative assessment of the same along with the ACRs of respondent No.4 herein is a matter which has to be taken note by the DPC by excluding the punishment order dated 25.7.2007 and on such comparative analysis keeping in view the Rule providing for promotion a fresh consideration is required to be made in so far as the case of the appellant is concerned. In this regard, we also take note that the appellant has already retired from service on 31.5.2015. In such circumstance, disturbing respondent No.4 in any event would not arise. At best, on re-consideration in the review DPC if the appellant succeeds, she would be entitled to consequential financial benefits in accordance with law. Therefore, to the limited extent we hold that the promotion being declined to the appellant through the order dated 25.2.2015 on the ground as assigned, would not be justified. Hence, to that Page No.# 6/19 extent we direct the official respondents to re-consider the case of the appellant in the review DPC, act in accordance with law and if any financial benefits accrue to her, the same be granted to her thereafter. In terms thereof, the order passed by the learned Single Judge is modified to the said extent and the appeal stands allowed in part.” 8. Pursuant thereto, the review DPC was held whereby the impugned Resolution dated 09.07.2020 was adopted thereby rejecting the claim of the Petitioner. It is under such circumstances, the present writ petition was filed. 9. The record reveals that on 17.09.2020, the learned Coordinate Bench of this Court issued notice. The Official Respondents had not filed their affidavit-in-opposition and the Respondent No.4 though effected service, chose not to appear. 10. In the backdrop of the above, this Court is taking up the present writ petition for disposal. 11. Mr. S. Banik, the learned Senior Counsel appearing on behalf of the Petitioner submitted that the learned Division Bench vide the order dated 27.02.2019 in WA No.15/2018 though directed that there should be a comparative assessment of the ACRs for the years 2009 to 2013 between the Petitioner and the Respondent No.4, but this comparison was to be carried out Page No.# 7/19 within the purview of the Rules, which would be Rule 6(2) of the Assam Chief Judicial Magistrates Establishment (Ministerial) Service Rules 1987 (for short, ‘the Rules of 1987’) which provides the criteria for promotion to be seniority-cum-merit. The learned Senior Counsel for the Petitioner drawing reference to the impugned Resolution dated 09.07.2020 submitted that the review DPC while conducting the exercise in terms with the directions passed by the learned Division Bench in the order dated 27.02.2019 completely overlooked the criteria for promotion which was seniority-cum-merit and purely on the basis of merit, held that the Petitioner was not entitled to be promoted to the post of Supervisory Assistant and get the financial benefits. He, therefore, submitted that the impugned Resolution dated 09.07.2020 is required to be interfered with and a direction be issued to the Respondents Nos.2 & 3 to redo the exercise in terms with the directions passed by the learned Division Bench in the order dated 27.02.2019 in WA No.15/2018. 12. Per contra, Mr. H. K. Das, the learned Senior Counsel appearing on behalf of the Respondent Nos.2 & 3 submitted that there is no fault in the impugned Resolution in as much as there was a direction by the learned Division Bench to carry out the comparison of the ACRs for the years 2009 to 2013 between the Petitioner and the Respondent No.4, and on the basis thereof, Page No.# 8/19 finding the Petitioner had one ‘Average’, three ‘Good’, and one ‘Very Good’ whereas the Respondent No.4 had three ‘Very Good’ and two ‘Good’, decided that the Petitioner was not entitled to have been promoted to the post of Supervisory Assistant and therefore not entitled to the consequential financial benefits. The learned Senior Counsel appearing on behalf of the Respondent Nos.2 & 3 further submitted that the moment the learned Division Bench had directed that there is a requirement of a comparative assessment, the review DPC was left with no other discretion other than to carry out the review DPC on the comparative analysis of the ACRs of the Petitioner for the years 2009 to 2013 with the ACRs of the Respondent No.4. He, therefore, submitted that in the instant case, no interference is required. 13. This Court duly heard the learned counsel appearing on behalf of the parties and have also perused the contents of the writ petition more particularly, the directions so passed by the learned Division Bench which have been already quoted herein above and the impugned DPC Resolution dated 09.07.2020. 14. The dispute in the instant proceedings pertains to as to whether the Petitioner ought to have been promoted to the post of Supervisory Assistant, or for that matter, whether the promotion of the Respondent No.4 to the post of Supervisory Page No.# 9/19 Assistant, ignoring the case of the Petitioner, was in accordance with law. 15. It may be relevant to take note of that the learned Division Bench while passing the order dated 27.02.2019 in WA No.15/2018 made it clear that the promotion of the Respondent No.4 to the post of Supervisory Assistant need not be disturbed. It is within the scope of the directions passed by the learned Division Bench in the order dated 27.02.2019, this Court is required to consider as to whether the Petitioner ought to have been promoted to the post of Supervisory Assistant based upon the ACRs 2009 to 2013 and was entitled to the financial benefits. 16. Rule 6 of the Rules 1987 stipulates the mode of recruitment. For the post of Supervisory Assistant, Rule 6(2) of the Rules of 1987 as well as Note appended thereto, being relevant, is reproduced herein under:- “(2) Supervisory Assistant – By promotion from amongst the Upper Division Assistants of the Chief Judicial Magistrates Establishment (Ministerial) concerned on the basis of seniority-cum-merit who have rendered not less than 7 years of service in the Chief Judicial Magistrate's Establishment (Ministerial) concerned out of which at least 3 years shall be of continuous service as Upper Division Assistant on the 1st day of the year in which the promotion is made. NOTE – For the purpose of promotion of the Upper Division Assistant, Page No.# 10/19 the Chief Judicial Magistrate shall prepare a select list at the beginning of each year taking into account the number of vacancies likely to occur during the year in question. The Chief Judicial Magistrate shall associate the Additional Chief Judicial Magistrate and Sub-Divisional Judicial Magistrate in the selection. The criterion for selection shall be on the basis of seniority-cum-merit and the select list shall remain valid for one year from the date of recommendation of the Selection Board. It shall be reviewed after one year and all those eligible shall again be considered.” 17. From a perusal of the above quoted Rule 6(2) of the Rules of 1987, it would transpire that the criterion for selection of an Upper Division Assistant to the post of Supervisory Assistant is to be made on the basis of seniority-cum-merit. The concept of seniority-cum-merit is that a senior who has the minimum requisite merit for the efficiency of administration shall be entitled to promotion even though there might be others who are more meritorious. At Paragraph No.38 of the judgment of the Supreme Court in the case of State of Kerala & Another vs. N. M. Thomas & Others, reported in (1976) 2 SCC 310, the Supreme Court explained the concept of seniority-cum-merit. Taking into account the relevance, the said Paragraph No.38 is reproduced herein under:- “38. The principle of equality is applicable to employment at all stages and in all respects, namely, initial recruitment, promotion, Page No.# 11/19 retirement, payment of pension and gratuity. 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 senior though the less meritorious shall have priority. This will not violate Articles 14, 16(1) and 16(2). A rule which provides that given the necessary requisite merit, a member of the backward class shall get priority to ensure adequate representation will not similarly violate Article 14 or Article 16(1) and (2). The relevant touchstone of validity is to find out whether the rule of preference secures adequate representation for the unrepresented backward community or goes beyond it.” 18. In the case of B.V. Sivaiah vs. K. Addanki Babu, reported in (1998) 6 SCC 720, the Supreme Court explained the difference between the principles of merit-cum-seniority vis-à-vis the principle of seniority-cum-merit. The said aspect is necessary for the purpose of understanding the purport of the directions passed by the learned Division Bench in the order dated 27.02.2019 in WA No.15/2018. In the said judgment, the Supreme Court observed that the criterion of seniority-cum-merit postulates that given the minimum necessary merit requisite for efficiency of the administration, the senior even though less meritorious shall have priority and a comparative assessment of merit is not required to be made. It was further emphasized by Page No.# 12/19 the Supreme Court in the said judgment that 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 the merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of the appraisal of performance on the date of the service record and the interview and prescribing the minimum marks which entitle a person to be promoted on the basis of seniority-cum-merit. The Supreme Court in the said judgment further explained the scope of the criterion merit-cum-seniority by opining that the said criterion merit-cum-seniority postulates the requirement of making a comparative assessment of merit whereas no such comparative assessment is required when the criterion for promotion is based on the principle of seniority-cum-merit. The judgment in the case of B.V. Sivaiah (supra) was relied upon in a recent judgment of the Supreme Court in the case of Ravikumar Dhansukhlal Maheta and Another vs. High Court of Gujarat and Others, reported in (2024) 11 SCC 424. Paragraph No.86 of the said judgment in the case of Ravikumar Dhansukhlal Maheta (supra) is reproduced herein under:- “86. This Court in B.V. Sivaiah v. K. Addanki Babu whilst explaining the Page No.# 13/19 difference between the principle of “merit-cum-seniority” vis-à-vis the principle of “seniority-cum-merit”, held as follows: 86.1. First, where promotion is based on the principle of “merit-cum- seniority” a greater emphasis is laid on merit and the ability of the candidate and seniority is to be given weight where merit and ability are approximately equal. Whereas, when it comes to the principle of “seniority-cum-merit”, the promotion is to be made on the basis of seniority alone subject to having the minimum requisite merit and suitability of the candidate amongst the eligible persons. The relevant observations read as under: “9. The principle of “merit-cum-seniority” lays greater emphasis on merit and ability and seniority plays a less significant role. Seniority is to be given weight only where merit and ability are approximately equal…. * * * 18. We thus arrive at the conclusion that the criterion of “seniority-cum-merit” in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit, the competent authority can lay down the minimum standard that is required and also 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 Page No.# 14/19 appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum- merit.” (emphasis supplied) 86.2. Secondly, the principle of “merit-cum-seniority” postulates the requirement of making a comparative assessment of merit, whereas no such comparative assessment is required where the criterion for promotion is based on the principle of “seniority-cum-merit”. Even if the candidates have the same length of service, it is only to be determined whether the candidates possess the minimum required threshold of merit or not. The relevant observations read as under: “15. … Since comparative assessment of merit is required to be made while applying the criterion of “merit-cum-seniority” and for “seniority-cum-merit” no such comparative assessment is required, the aforementioned observations in C.R. Sheshadri on which reliance has been placed cannot be regarded as correctly reflecting as what is meant by the criterion of “seniority-cum-merit”. * * * 17. … We are unable to agree. While applying the principle of seniority-cum-merit for the purpose of promotion, what is required to be considered is inter se seniority of the employees who are eligible for consideration. Such seniority is normally determined on the basis of length of service, but as Page No.# 15/19 between employees appointed on the same date and having the same length of service, it is generally determined on the basis of placement in the select list for appointment. Such determination of seniority confers certain rights and the principle of seniority-cum-merit gives effect to such rights flowing from seniority. It cannot, therefore, be said that in the matter of promotion on the basis of seniority-cum-merit seniority has no role where the employees eligible for promotion were appointed on the same date and have the same length of service.” (emphasis supplied) 86.3. Thirdly, the Court concluded by observing that where the criterion of promotion is principle of “seniority-cum-merit”, marks can only be prescribed as a “minimum qualifying requirement” and as such where promotion was being given to the eligible seniormost candidates on the basis of their individual marks, such promotion would be contrary to the principle of “seniority-cum-merit”. The relevant observations read as under: “26. … It is not a case where minimum qualifying marks are prescribed for assessment of performance and merit and those who secure the prescribed minimum qualifying marks are selected for promotion on the basis of seniority. In the circumstances, it must be held that the High Court has rightly come to the conclusion that the mode of selection that was in fact employed was contrary to the principle of “seniority-cum- merit” laid down in the Rules.” Page No.# 16/19 (emphasis supplied) This distinction was reiterated in Union of India v. Rajendra Singh Kadyan, State of U.P. v. Jalal Uddin and Haryana State Electronics Development Corpn. Ltd. v. Seema Sharma.” 19. In the backdrop of the above quoted Paragraph, the question arises as to how this Court has to understand the purport of the directions so passed by the learned Division Bench in as much as on one hand, there is a direction that there should be a comparative assessment of the ACRs for the years 2009 to 2013 of the Petitioner as well as the Respondent No.4, and on the other hand, there is also a direction that the said assessment be carried out within the purview of Rule 6(2) of the Rules of 1987. Taking into account the settled principles of law, it is the opinion of this Court that the purport of the directions of the learned Division Bench has to be understood that the comparative assessment of the ACRs between the Petitioner and the Respondent No.4 was only for the purpose of analyzing as to whether the Petitioner herein has the minimum requisite merit that was required for efficiency of the administration to be promoted and thereupon if the review DPC opined so, the Petitioner would be entitled to promotion only for the purpose of financial benefits. If any other interpretation is given to the Page No.# 17/19 directions passed by the learned Division Bench, the same could go foul to the settled principles of law laid down by the Supreme Court in the case of B.V. Sivaiah (supra). 20. In the backdrop of the above, if this Court now takes note of the impugned Resolution dated 09.07.2020, it would be seen that the review DPC made the comparative assessment on the basis of the ACRs of the Petitioner with the Respondent No.4 by applying the criteria akin to merit-cum-seniority. No minimum bench mark criteria was fixed. Under such circumstances, it is therefore the opinion of this Court that the review DPC while conducting the review DPC failed to take into consideration the directions so passed by the learned Division Bench in the order dated 27.02.2019 in the proper perspective. 21. Considering the above, it is therefore the opinion of this Court that the impugned Resolution dated 09.07.2020 is required to be interfered with. 22. Accordingly, the writ petition stands disposed of with the following observations and directions: (i) The impugned Resolution dated 09.07.2020 of the review DPC is set aside and quashed. (ii) The Respondent Nos.2 & 3 are directed to carry out a fresh exercise by conducting a review DPC in terms of the Page No.# 18/19 directions passed by the learned Division Bench in the order dated 27.02.2019 passed in WA No.15/2018. (iii) Taking into account that the review DPC has misconstrued the directions so passed by the learned Division Bench, this Court clarifies that the comparative assessment of the ACRs for the year 2009 to 2013 between the Petitioner and the Respondent No.4 should be only used for the purpose of ascertaining the minimum necessary merit requisite for efficiency of the administration. Upon assessment, if it is found that the Petitioner had the minimum requisite merit, the Petitioner who admittedly is much senior to the Respondent No.4 has to be granted a notional promotion for the purpose of enjoying the financial benefits for the purpose of fixation of the pensionary benefits. (iv) This Court further for the sake of clarity observes that in the circumstance the review DPC considers that the Petitioner ought to have been promoted and granted the notional promotion, the same if done would not affect the rights of the Respondent No.4 in view of the categorical directions passed by the learned Division Bench in the order dated 27.02.2019. Page No.# 19/19 (v) The said exercise be carried out within a period of 60 days from the date of submission of the certified copy to the Respondent No.3. (vi) No costs. JUDGE Comparing Assistant Pradip Kumar Kalita Digitally signed by Pradip Kumar Kalita Date: 2026.07.29 13:42:21 +05'30'