Page No.# 1/8 GAHC010024752023 2025:GAU-AS:4953 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/745/2023 RAJU BRAHMAGIRI S/O- LATE RAJENDRA BRAHMAGIRI, R/O- VILL- BESWARKONA, P.O- MONGLAJHARA, PIN- 783337, P.S- BOGORIBARI, DIST- KOKRAJHAR, ASSAM VERSUS THE STATE OF ASSAM AND 6 ORS REP. BY THE SECRETARY TO THE GOVT OF ASSAM, JUDICIAL DEPTT, DISPUR, GHY- 781006 2:THE REGISTRAR GENERAL THE GAUHATI HIGH COURT PRINCIPAL BENCH P.O GUWAHATI- 781001 P.S-LATASIL DIST- KAMRUP(M) ASSAM 3:THE REGISTRAR (ADMIN) CUM I/C CENTRALISED RECRUITMENT THE GAUHATI HIGH COURT PRINCIPAL BENCH P.O- GUWAHATI- 781001 P.S- LATASIL DIST- KAMRUP(M) ASSAM 4:THE CHAIRMAN SELECTION BOARD DHUBRI DISTRICT JUDICIARY P.O- DHUBRI P.S- DHUBRI Page No.# 2/8 DIST- DHUBRI ASSAM 5:THE DISTRICT AND SESSIONS JUDGE DHUBRI P.O- DHUBRI P.S- DHUBRI DIST- DHUBRI ASSAM 6:NIZAM HUSSAIN R/O- BN COLLEGE ROAD WARD NO. 14 NEAR MOSJID P.O- DHUBRI P.S- DHUBRI DIST- DHUBRI ASSAM 7:SUMAN KUMARI D/O- BHIKHARY MAHATO R/O- WARD NO. 1 KACHARIGHAT P.O- DHUBRI P.S- DHUBRI DIST- DHUBRI ASSAM PIN- 78330 B E F O R E HON’BLE MR. JUSTICE DEVASHIS BARUAH Advocates for the petitioner(s) : Mr. I Hassan Advocates for the respondent(s) : Mr. TJ Mahanta Senior Advocate & Standing Counsel, Gauhati High Court Mr. TR Gogoi Page No.# 3/8 Govt. Advocate, Assam Mr. S Das For respondent Nos.6 and 7 Date of hearing & judgment : 24.04.2025 JUDGMENT & ORDER(ORAL) Heard Mr. I Hassan, the learned counsel appearing on behalf of the petitioner. Mr. TJ Mahanta, the learned senior counsel appears on behalf of respondent Nos.2, 3, 4 and 5 and Mr. S Das, the learned counsel appears on behalf of respondent Nos.6 and 7. 2. The petitioner herein has assailed the selection made in favour of the respondent Nos. 6 and 7 vide the select list dated 18.01.2023 on the ground that the respondents, more particularly, the respondent Nos. 4 and 5 had applied a criteria which is not in conformity with the Assam District and Sessions Judges Establishment (Ministerial) Service Rules, 1987, (for short, “the Rules of 1987”). 3. The case of the petitioner herein is that he was appointed as a Process Server against the sanctioned post at the Establishment of the District and Sessions Judge, Dhubri vide an order dated 19.01.2007. Subsequent to joining the said services on 02.02.2007, the petitioner claims to be performing his duties to the best of his abilities and satisfaction of the authorities concerned. Page No.# 4/8 4. At this stage, this Court finds it pertinent to take note of the gradation list in the Office of the District & Sessions Judge, Dhubri in respect of Grade-IV (Process Server) for the year 2021 enclosed as Annexure-4 to the writ petition. 5. It would be relevant to take note of that the petitioner herein was appointed on 02.02.2007 and he was confirmed on 22.10.2014. The respondent No.6 was appointed on 17.09.2009 and was confirmed on 15.06.2018. The respondent No.7 was appointed on 15.07.2013 and was confirmed on 15.06.2018. 6. Proceeding further with the facts involved in the instant proceedings, it would be seen that on 09.01.2023, the respondent No.5 had issued a notice wherein it was mentioned that on the basis of a resolution adopted in the meeting of the Selection Board dated 05.01.2023, 8 (eight) Grade-IV employees were called for to appear before the Selection Board for written test on 12.01.2023. The materials on record further show that on 18.01.2023, a select list was prepared (merit-wise), wherein the respondent Nos. 6 and 7 were put at Serial Nos.1 and 2 respectively, whereas the petitioner and another person namely Sri Kanak Ray were put at Serial Nos. 1 and 2 respectively in the waiting list (merit-wise). The petitioner being aggrieved on the ground that he being the senior, his seniority was not duly counted had approached this Court by filing the present writ petition. 7. This Court finds it relevant to take note of that vide the order dated 13.02.2023, this Court had issued notice and further observed that the Page No.# 5/8 promotion given to the respondent Nos.6 and 7 shall be subject to further order(s) that may be passed in the instant proceedings. 8. At this stage, it is very pertinent to take note of that during the course of the hearing, Mr. TJ Mahanta, the learned Standing Counsel, Gauhati High Court has placed before this Court an order No.8 dated 20.01.2023 whereby the respondent Nos.6 and 7 were promoted to the post of LDA on the basis of the select list prepared on 18.01.2023. The said order is kept on record and marked with the letter ‘X’. 9. The records further reveals that the respondent Nos.2, 3, 4 and 5 had filed the affidavit-in-opposition through the District and Sessions Judge, Dhubri. The said affidavit is very relevant to take note of the manner in which the selection was conducted by the Selection Committee and on the basis of which the impugned select list was prepared. At paragraph 5 of the said affidavit-in- opposition, though the learned District and Sessions Judge, Dhubri duly acknowledges that the criteria was seniority-cum-merit in terms with Rule 6(5) (c) of the Rules of 1987, but at paragraph 8, it is seen that the Selection Committee had given a clear go by to the criterion for selection i.e. seniority- cum-merit. A reading of paragraph 8 of the affidavit-in-opposition would show that instead of adjudging the minimum necessary merit requisite for efficiency of the administration, the respondent Selection Committee had conducted a written test wherein the petitioner was found at Sl.No.3, whereas the respondent Nos.6 and 7 were found at Sl. No.1 and 2 respectively. Page No.# 6/8 10. At this stage, this Court taking into account the manner in which the Selection Committee proceeded with the selection finds it relevant to take note of the judgment of the Supreme Court in the case of B. V. Sivaiah & Ors. Vs. K. Addanki Babu & Ors reported in (1998) 6 SCC 720, wherein the difference between the principles of merit-cum-seniority, vis-à-vis, the principle of seniority-cum-merit was explained. It was observed by the Supreme Court that where promotion is to be based on principle of merit-cum-seniority, a greater emphasis is laid on merit and the ability of the candidate and the 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 Supreme Court further observed that 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. It was further observed that 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 Supreme Court further observed in the said judgment that where the criterion of promotion is seniority-cum-merit, marks can only be prescribed as a minimum qualifying requirement and as such where promotion was being given to the eligible senior-most candidates on the basis of their individual marks, such promotion would be contrary to the principle of seniority-cum-merit. Page No.# 7/8 11. Taking into account the above laid down principles by the Supreme Court in the case of B. V. Sivaiah (supra) and the manner in which the selection was carried out by the Respondent selection Committee, this Court is of the opinion that the criterion so adopted was merit-cum-seniority and not seniority-cum- merit which was not the criterion for the purpose of promotion. 12. Consequently, the entire selection so made being contrary to the provisions of Rule 6(5) (c) of the Rules of 1987, the entire select list dated 18.01.2023, as well as the order dated 20.01.2023 kept on record and marked with the letter ‘X’ are required to be interfered with. 13. In view of the above analysis and determination, this Court, therefore, disposes of the instant writ petition with the following observations and directions: (1).The Select List dated 18.01.2023 impugned in the instant proceedings is set aside and quashed. (2).The consequential order dated 20.01.2023, by which the respondent Nos. 6 and 7 were promoted to the post of Lower Division Assistants is also set aside and quashed. (3). The respondents, more particularly, the respondent Nos. 3, 4 and 5 are directed to forthwith take steps for filling up the posts of LDA by carrying out a due selection process in accordance with law. Page No.# 8/8 JUDGE Comparing Assistant