JUDGMENT : B.N. Mahapatra, J. - Petitioner, in this Writ Petition, has prayed to quash the Order Dated 10.12.2002 (Annexure-1) passed by Opp. Party No. 1- State Election Commission, Orissa by which promotion has been given to Opp. Party No. 2-Saroj Kumar Pattnaik to the post of Senior Assistant & to give a direction to Opp. Party No. 1 to promote him with all financial & service benefits to the post of Senior Assistant from the date on which Opp. Party No. 2 got promotion to the said post. 2. The case of the Petitioner in nutshell is that on 29.02.1996, he was appointed as Junior Assistant on ad hoc basis under Opp. Party No. 1- the State Election Commission, Orissa (hereinafter referred to as 'the Commission'). Subsequent thereto, ten candidates were selected to the posts of Junior Assistant in the office of Opp. Party No. 1 through regular recruitment process. Among them, the Petitioner secured second & Opp. Party No. 2-Saroj Pattnaik secured third position in the merit list. They were appointed on 10.02.1999 & 12.02.1999 respectively. Thereafter, vide Order No. 6219 dated 10.12.2002 (Annexure-1), Opp. Party No. 2 was promoted to the post of Senior Assistant. Petitioner's case is that Opp, Party No. 2 was given promotion to the post of Senior Assistant by ignoring the better claim of the Petitioner. In Spite of service of notice, Opp. Party No. 2 has not entered appearance to contest the issue. 3. Mr. G R. Dora, Learned Senior Advocate appearing on behalf of the Petitioner submitted that Senior Assistant is the next higher post to Junior Assistant. The criterion for such promotion is merit & suitability with due regard to seniority. There were two vacant posts of Senior Assistant available in the office of Opp. Party No. 1 out of which one post was meant for reserved category & the other for general category. The Petitioner belongs to general category. Miss. Kabita Jena, who was at Sl. No. 1 among the Junior Assistants, was considered for the only post of general category but she was not found suitable by the Selection Board. The Selection Board selected & illegally recommended Opp. Party No. 2 for promotion to the post of Senior Assistant ignoring the better claim of the Petitioner. According to Mr. Kabita Jena, who was at Sl. No. 1 among the Junior Assistants, was considered for the only post of general category but she was not found suitable by the Selection Board. The Selection Board selected & illegally recommended Opp. Party No. 2 for promotion to the post of Senior Assistant ignoring the better claim of the Petitioner. According to Mr. Dora, the criteria for such selection was mainly on the basis of Confidential Character Roll (CCR) for the proceeding three years. During the preceding three years, Petitioner got 'outstanding' remarks whereas the Opp. Party No. 2 got 'outstanding' remarks only for two years & 'very good' for one year. At the time of selection of candidates for filling up of posts of Junior Assistants in class- III post in the Commission held on 04.02.1999, both the Petitioner & Saroj Kumar Patnaik secured equal marks, i.e., 7 each. The criterion under Rule 7(3) of the State Election Commission (Method of Recruitment & Condition of Service of Staff) Rules, 1996 (herein after referred to as 'the Rules, 1996') framed under Article 309 of the Constitution of India being merit & suitability with due regard to seniority, merit plays a dominant role & comes first. The Commissioner has mechanically approved the recommendation made by the Selection Board though it was violative of statutory provisions & the mandates of Articles 14 & 16 of the Constitution of India & contrary to the decision of the Apex Court thereby disentitling the Petitioner for promotion to the post of Senior Assistant. However, in the meantime, the post of the Petitioner has been up-graded to Senior Assistant & at present, he is officiating in the said post from 27.10.2008. Concluding his argument, Mr. Dora submitted that direction be issued to promote the Petitioner as Senior Assistant from the date the Opp. Party No,2 was promoted to the post of Senior Assistant with all consequential benefits. 4. Per contra, Mr. Susanta Kumar Das, Learned Counsel for the Commission contended that in the proceedings of the 6th meeting of the Selection Board for selection of candidates to the posts of Junior Assistants in Class-Ill post in the Commission held on 04.02.1996. Petitioner & Opp. Party No. 2 were placed in 2nd & 3rd position respectively in order of merit & both of them were recruited on the same day. Petitioner & Opp. Party No. 2 were placed in 2nd & 3rd position respectively in order of merit & both of them were recruited on the same day. The Selection Board scrutinized the entries made in the CCRs of ten Junior Assistants relating to proceeding three years of their service & made an overall assessment of their merit & suitability & selected two of them to fill up the vacancies in the post of Senior Assistant. The Selection Board found Sri Saroj Kumar Pattnaik (Opp. Party No. 2) placed at SI. No. 2 of the merit list suitable & recommended his name for promotion to the post of Senior Assistant. One Miss. Sujata Boipai was also promoteel to the post of Senior Assistant against the reserved post. The Commissioner approved the recommendation of the Selection Board strictly in terms of provisions of Rule 6(5) of the recruitment rules. Therefore, the Writ Petition is liable to be dismissed. 5. We have heard Learned Counsel for the parties & perused the records. 6. On rival contentions raised at the Bar, the question that needs determination by this Court is as follows: Whether promotion of Opposite Party No,2-Saroj Kumar Patnaik to the post of Senior Assistant was made in violation of the statutory Rules & the principles laid down by the Apex Court? 7. The facts which are not in dispute are that four posts of Senior Assistant were sanctioned by the Government in P.R. Department vide Government Order No. 14080 dated 11.8.1994. One post reserved for Scheduled Caste category was filled up by one Bankanidhi Sarangi in the year 1996 on the basis of deputation from Panchayatiraj Department. One unreserved post was filled up by one Uttam Kumar Parida in the year 1999 by bringing him from New Delhi where he was working in another Department. The post reserved for Scheduled Tribe was filled up by one Sujata Boipai in the year 2002 on the basis of assessment of CCRs. Another unreserved post was filled up by Opp. Party No. 2-Saroj Kumar Pattnaik in the year 2002 on the basis of assessment of CCRs. In the year 2002, the Selection Board for the purpose of above promotion, i.e., for one reserved post & one unreserved post scrutinized the CCRs. for three proceeding years, i.e., 1999-2000,2000-01 &2001-02. Another unreserved post was filled up by Opp. Party No. 2-Saroj Kumar Pattnaik in the year 2002 on the basis of assessment of CCRs. In the year 2002, the Selection Board for the purpose of above promotion, i.e., for one reserved post & one unreserved post scrutinized the CCRs. for three proceeding years, i.e., 1999-2000,2000-01 &2001-02. Two Scheduled Tribe candidates namely, Sundar Mohan Beshra & Sujata Boipai, who were then working in the Commission Office, (O.P. No. 1) were considered for filling up one reserved category post. Since Sundar Mohan Beshra got almost 'average' rating in all the proceeding three years in his CCRs & Sujata Boipai got 'good' & 'very good' ratings in three proceeding years in her CCRs, she was promoted to the post of Senior Assistant against one reserved post. As there was no reservation in the promotional post for S.E.B.C. candidate, the case of Kabita Jena who was an S.E.B.C. candidate was considered along with the Petitioner-Deepak Ranjan Mohanty & Saroj Kumar Patnaik (O.P.2), under general category for filling up one unreserved promotional post. The Selection Board made comparison of CCR ratings in 3 years of these 3 employees. When Deepak Ranjan Mohanty got three 'outstanding' ratings, Saroj Kumar Patnaik got two 'outstanding' & one 'very good' rating, & Kabita Jena got three 'good' ratings in their CCRs in three proceeding years. Considering the above ratings in the CCRs, the Selection Board recommended the name of Saroj Kumar Pattnaik (O.P. 2) for promotion to the post of Senior Assistant against the promotional post of unreserved vacancy. 8. At this juncture, it is relevant to quote Rule-7(3) of Orissa State Election Commission (Method of Recruitment & Conditions of Services of Staff) Rules, 1996 & Rule 3 of Orissa Civil Services (Criteria for Promotion) Rules, 1992 which read as follows: Rule-7. Procedure for selection by the Selection Board- (1) xx xx xx (2) xx xx xx (3) In case of appointment on promotion the Selection Board shall prepare lists of successful candidates which shall be equal to the number of vacancies for different posts in order of merit on the basis of merit & suitability with due regard to seniority. Rule-3. Procedure for selection by the Selection Board- (1) xx xx xx (2) xx xx xx (3) In case of appointment on promotion the Selection Board shall prepare lists of successful candidates which shall be equal to the number of vacancies for different posts in order of merit on the basis of merit & suitability with due regard to seniority. Rule-3. Crieteria for Promotion-Notwithstanding anything contained in the Recruitment rules: (a) All promotions to the posts or grades of different Services Civil Post; under the State Government shall be made by selection; (b) Selection for such promotion shall be made on the basis of merit & suitability in all respects with due regard to seniority & the names of persons included in the Select List shall be arranged in order of seniority in the feeder service or grade: Provided that any junior officer of exceptional merit & suitability may be assigned a place higher than his seniors & in such cases the assignment of higher position to the junior officer shall be limited to the same batch or year of allotment except where an officer of the earlier batch or year of allotment is found unsuitable for promotion. Provided further that where promotion is made from different services of posts & no common seniority among such officers exists, their names in the Select List shall be arranged on the basis of their merit adjudged during selection 9. A conjoint reading of the above quoted Rule makes it ample clear that in case of appointment on promotion, merit plays a dominant role & comes first as the criterion under the statutory rules being merit & suitability with due regard to seniority. Needless to say that principle of 'merit-cum-seniority' is an approved method. On this issue, it may also be useful to refer to some of the Judgments of the Apex Court. The Apex Court in Sant Ram Sharma Vs. State of Rajasthan and Another, held as under: The circumstance that these posts are classed as 'Selection Grade Posts' itself suggests that promotion to these posts is not automatic being made only on the basis of ranking in the Gradation List but the question of merit enters in promotion to selection posts. The Apex Court in Sant Ram Sharma Vs. State of Rajasthan and Another, held as under: The circumstance that these posts are classed as 'Selection Grade Posts' itself suggests that promotion to these posts is not automatic being made only on the basis of ranking in the Gradation List but the question of merit enters in promotion to selection posts. In our opinion, the Respondents are right in their contention that the ranking or position in the Gradation List does not confer any right on the Petitioner to be promoted to selection posts & that it is a well-established rule that promotion to selection grades or selection posts is to be based primarily on merit & not on seniority alone. The principle is that when the claims of officers to selection posts is under consideration, seniority should not be regarded except where the merit of the officers is judged to be equal & no other criterion is therefore available. The Apex Court in Union of India (UOI) Vs. Mohan Lal Capoor and Others held as under: ...for inclusion in the list shall be based on merit & suitability in all respects with due regard to seniority, what it means is that for inclusion in the list, merit & suitability in all respects should be the governing consideration & that seniority should play only a secondary role. It is only when merit & suitability are roughly equal that seniority will be a determining factor, or, if it is not fairly possible to make an assessment inter se of the merit & suitability of two eligible candidates & come to a firm conclusion, seniority would tilt the scale. The Apex Court in B.V. Sivaiah and Others etc. Vs. K. Addankl Babu and Others etc. held as under: The principle of "merit-cum-seniority" lays greater emphasis on merit & ability & seniority plays a less significant role. Seniority is to be given weight only when merit & ability are approximately equal. The Apex Court in Bhagwandas Tiwari and Ors. v. Dewas Shajapur Kshetriya Gramin Bank and Ors. (2006) 12 SCC 574 , held as under: The principles of seniority-cum-merit & merit-cum-seniority are conceptually different. For the former, greater emphasis is laid on seniority, though it is not the determinative factor, while in the latter merit is the determinative factor. 10. The Apex Court in Bhagwandas Tiwari and Ors. v. Dewas Shajapur Kshetriya Gramin Bank and Ors. (2006) 12 SCC 574 , held as under: The principles of seniority-cum-merit & merit-cum-seniority are conceptually different. For the former, greater emphasis is laid on seniority, though it is not the determinative factor, while in the latter merit is the determinative factor. 10. The issue involved in this case may be examined in the light of the above settled legal propositions. In the present case, since Kabita Jena had got 'good' ratings in all the three years she was not found suitable for promotion by the Selection Board. Between Petitioner-Deepak Ranjan Mohanty & Saroj Kumar Patnaik (O.P.2) when the Petitioner got 3 outstanding' ratings in the CCR, Saroj Kumar Patnaik got two 'outstanding' ratings & one 'very good' rating in the 3 years. So far as merit is concerned, Petitioner-Deepak Ranjan Mohanty is undoubtedly on a better footing. The stand of Opposite Party No. 1 that at the time of selection of candidates for filling up of posts of Junior Assistants in Class-Ill post in the Commission held on 04.02.1999, Deepak Ranjan Mohanty was placed in the third position while Saroj Kumar Patnaik was in the second position in the merit list of ten successful candidates is of no help to the Opposite Party No. 1 since both Saroj Kumar Patnaik & Deepak Ranjan Mohanty secured equal mark, i.e., 76 each. Apart from this, another important aspect of the case is that the Selection Board has recommended the name of Miss. Sujata Boipai for one promotional post on the basis of ratings made in her CCRs only for three proceeding years on the same proceeding on the same day. No satisfactory explanation has been given by Opposite Party No. 1 for making a departure from the said basis while making comparison between the Petitioners Opp. Party No. 2. However, in course of hearing Mr. Dora, Learned Senior Advocate submitted that, in the meantime, the Petitioner is officiating in the post of Senior Assistant from 27.10.2008. 11. In that view of the matter, we direct Opp. Party No. 1 to treat the date of promotion of the Petitioner with effect from the date it promoted Opp. Party No. 2, i.e., 10.12.2002 & grant all consequential benefits to him. 12. In the result, the Writ Petition succeeds & is allowed to the extent indicated above. 11. In that view of the matter, we direct Opp. Party No. 1 to treat the date of promotion of the Petitioner with effect from the date it promoted Opp. Party No. 2, i.e., 10.12.2002 & grant all consequential benefits to him. 12. In the result, the Writ Petition succeeds & is allowed to the extent indicated above. There will be no order as to costs. P.K. Tripathy, J. 13. I agree. Final Result : Allowed