JUDGMENT AND ORDER : Ujjal Bhuyan, J. Heard Mr. A.K. Bhattacharyya, learned Sr. Counsel for the petitioner, Mr. K.N. Choudhury, learned Sr. Counsel for the Public Works Department, Assam and Mr. A.C. Borbora, learned Sr. Counsel for respondent No. 4. 2. Matter relates to selection for promotion from Chief Engineer to Secretary in the Public Works Department (PWD), Assam. 3. In the cadre of Chief Engineer petitioner was placed at Sl. No. 3 in the gradation list dated 06.06.2007 whereas respondent No. 4 was placed at Sl. No. 1. Criteria for promotion as laid down in the Assam Engineering (PWD) Service Rules, 1978 is merit-cum-seniority. Rule 13 (4) of the aforesaid Rules lays down the criteria, which is as under:- "Promotion upto the rank of Superintending Engineer and Senior Architect will be made on merit and suitability with due regard to seniority and promotions above the rank of Superintending Engineer on merit-cum-seniority." 4. A meeting of the Selection Committee to consider promotion from Chief Engineer to Secretary was held on 22.06.2007. Respondent No. 4 was selected and thereafter consequential notification dated 26.06.2007 was issued promoting respondent No. 4 to the post of Secretary. This promotion of respondent No. 4 was put to challenge by the petitioner before this Court by filing WP(C) No. 3573/2007 which was allowed by the learned Single Judge vide judgment and order dated 09.04.2008 by setting aside the promotion of respondent No. 4 and directing selection afresh in accordance with the Rules. In fact, in paragraph 58 of the said judgment, learned Single Judge held that petitioner was the best candidate by applying the criteria of merit-cum-seniority and therefore he ought to have been the first recommendee. 5. Both respondent No. 4 as well as the State preferred appeals before the Division Bench against the said judgment of the learned Single Judge, the two appeals being WA No. 118/2008 and WA No. 134/2008. The writ appeals were heard together and were disposed of by the common judgment and order dated 18.12.2008. Both the writ appeals were dismissed with the only clarification that the Selection Committee while conducting fresh selection would not be guided by the observations of the learned Single Judge that petitioner was the best candidate and ought to have been the first recommendee. 6. Though there were some intervening developments, reference to the same may not be necessary at this stage. 7. 6. Though there were some intervening developments, reference to the same may not be necessary at this stage. 7. Selection Committee held its meeting on 10.03.2009. As per minutes of the Selection Committee meeting, cases of four officers who were in the zone of consideration were considered in terms of Government notification No. CON-5/2003/50 dated 28.04.2003:- 1. Sri. M.C. Boro (respondent No. 4) 2. Sri. M.R. Das, 3. Sri A.C. Bordoloi (petitioner), and 4. Sri. M.U. Ahmed. As per the notification, following marks have been assigned for gradings in the Annual Confidential Reports (ACRs)- Average : 1 Good : 2 Very Good : 3 Outstanding : 4 8. The said notification stipulates that 75% weightage should be given to merit and 25% to seniority. Since ACRs of 5 years are considered, maximum marks an officer can get from merit is 20 (5X4). Therefore, if 75% represents 20 marks, 25% allotted for seniority would represent 6.66 marks which can be worked out to 0.22 marks for every year of service prior to 01.01.2007 which was the cutoff date of consideration, for promotion in the present case, subject to a maximum of 6.66 marks. By applying the above yardstick, respondent No. 4 secured 16 marks for merit and 5.50 marks for seniority, total 21.50 marks. On the other hand, petitioner secured 18 marks for merit and 5.94 marks for seniority, total 23.94 marks. (At this stage it may not be necessary to go into details of the breakup of ACR gradings of the two rival candidates for each of the 5 years under consideration i.e. from 2001-02 to 2005-06, including the dispute relating to up-gradation of the ACR grading of respondent No. 4 from "very good" to "outstanding" for the year 2002-03). 9. Thus from the above, it is evident that petitioner had secured more marks than respondent No. 4 both on account of merit and on account of seniority as well as on overall basis. 9. Thus from the above, it is evident that petitioner had secured more marks than respondent No. 4 both on account of merit and on account of seniority as well as on overall basis. However, as per the notification dated 28.04.2003 those officers in the zone of consideration securing more than 21.16 marks would be placed in Class-A and those below 21.16 would be placed in Class-B with inter se seniority remaining unchanged in Class-A. Though both petitioner and respondents No. 4 were placed in Class-A, by virtue of his seniority in the feeder cadre of Chief Engineer, respondent No. 4 was the first recommendee in order of preference for appointment as Secretary though petitioner had better merit than respondent No. 4. 10. Consequential notification dated 17.03.2009 was issued promoting respondent No. 4 to the post of Secretary. 11. This promotion of respondent No. 4 is under challenge in the present proceeding. 12. A perusal of the notification dated 28.04.2003, which has been placed on record as Annexure-XVII to the writ petition would show that it was issued pursuant to the judgment of this Court in the case of Ramen Ch Kalita v. State of Assam reported in 2003 (3) GLT 369. The said notification deals with promotion at two stages, i.e., promotion upto the rank of Superintending Engineer and promotion above the rank of Superintending Engineer. For both the stages, marks for ACR gradings have been provided which has been noticed above. Allocation of marks between the merit and seniority has also been noticed above. The notification provides that for promotion above the rank of Superintending Engineer, there will be two classes as under:- Class A=21.16 and above. Class B= 17.66 to below 21.16. The notification further provides that Class-A will get preference over Class-B in the matter of promotion and inter se seniority within Class-A will remain unchanged. Thus by application of the aforesaid notification dated 28.04.2003, though petitioner had better merit than respondent No. 4 as he had secured 18 as against 16 by respondent No. 4 in the merit component and over all 23.94 as against 21.50 by respondent No. 4, it was respondent No. 4 who was finally recommended considering his seniority over petitioner in the gradation list of Chief Engineer. 13. As noticed above, notification dated 28.04.2003 was issued pursuant to judgment of this Court in Ramen Ch Kalita (supra). In Ramen Ch. 13. As noticed above, notification dated 28.04.2003 was issued pursuant to judgment of this Court in Ramen Ch Kalita (supra). In Ramen Ch. Kalita (supra), this Court was considering selection for promotion from Executive Engineer to Superintending Engineer in Assam PWD. As already noticed above, the criteria for such promotion upto the rank of Superintending Engineer is merit and suitability with due regard to seniority. This Court while interfering with the selections, made certain observations as to how the criteria of merit and suitability with due regard to seniority should be worked out by suggesting that marks should be allotted for both the components of merit and seniority with allocation of marks for merit being more so that necessary fusion could be achieved for application of the criteria of merit and suitability with due regard to seniority. Thus the judgment in Ramen Ch. Kalita (supra) was in the context of promotion from Executive Engineer to Superintending Engineer. But the notification dated 28.04.2003 while accepting the judgment in Ramen Ch. Kalita (supra) has also laid down detailed parameters for promotion above the rank of Superintending Engineer where the criteria is merit-cum-seniority and not merit and suitability with due regard to seniority. 14. The Hon'ble Supreme Court in the case of B.V. Sivaiah v. K. Addanki Babu reported in (1998) 6 SCC 720 has held that the principle of merit-cum-seniority lays greater emphasis on merit and ability and seniority plays a less significant role and will only come into play when merit and ability of the candidates are approximately equal. This decision of the Hon'ble Supreme Court has been reiterated in subsequent decisions. Thus the criteria of merit-cum-seniority would imply more emphasis on merit with seniority playing a less significant role. Only when merit is approximately equal, seniority would come into play. 15. However, what has been done in the notification dated 28.04.2003 is that those officers who secure 21.16 marks and above are placed in Class-A and thereafter the recommendation would be made on the basis of inter se seniority within Class-A. Therefore, despite better merit, petitioner was not recommended for promotion as because position of respondent No. 4 in the gradation list of Chief Engineer was higher, both being placed in Class-A. 16. Prima facie, the criteria laid down in the notification dated 28.04.2003 for promotion above the rank of Superintending Engineer does not conform to the criteria of merit-cum-seniority. Prima facie, the criteria laid down in the notification dated 28.04.2003 for promotion above the rank of Superintending Engineer does not conform to the criteria of merit-cum-seniority. Rather it amounts to giving more weightage to seniority subject to fulfilment of certain benchmark of merit. Once an officer within the zone of consideration secures 21.16 marks and is placed in Class-A, seniority will then become the determining factor. This, in my opinion, is more in tune with the criteria of seniority-cum-merit where more emphasis is placed on seniority subject to fulfilment of minimum merit by way of fixation of certain benchmark. Therefore, I am of the view that the notification dated 28.04.2003 in so far promotion above the rank of Superintending Engineer is concerned is not in conformity with the criteria of merit-cum-seniority as prescribed under Rule 13(4) of the Assam Engineering (PWD) Service Rules, 1978. 17. However, in the course of hearing, it has been brought to the notice of the Court that validity of this notification dated 28.04.2003 was gone into by a Single Bench of this Court in Banikanta Das v. State of Assam reported in 2007 (3) GLT 11. Banikanta Das (supra) was a case where promotion to the post of Additional Chief Engineer in PWD was under consideration (post of Additional Chief Engineer is above the post of Superintending Engineer). Two questions were identified by the Court as principal questions falling for consideration in Banikanta Das (supra). The two questions were as under:- 1. Whether the notification dated 28.04.2003 laying down the norms and guidelines for selection to the post of Additional Chief Engineer and above is in conflict with Ramen Ch. Kalita. 2. Whether the norms spelt out in the notification dated 28.04.2003 adheres to the requirements of the criteria of merit-cum-seniority which is the mandate of the Rules for promotion to the post of Additional Chief Engineer and above. Both the two questions were answered in the affirmative by the Court. While holding that the norms laid down in the notification dated 28.04.2003 are not in conflict with the directions of this Court in Ramen Ch. Kalita (supra), it was further held that norms so laid down in the notification dated 28.04.2003 for promotion above the rank of Superintending Engineer cannot be held to be so fundamentally opposed to the criteria of merit-cum-seniority that it should be struck down by judicial intervention. Kalita (supra), it was further held that norms so laid down in the notification dated 28.04.2003 for promotion above the rank of Superintending Engineer cannot be held to be so fundamentally opposed to the criteria of merit-cum-seniority that it should be struck down by judicial intervention. Accordingly, it was held that the notification dated 28.04.2003 is not opposed to the criteria of merit-cum-seniority. 18. With respect I am unable to agree to the view taken by the learned Single Judge in Banikanta Das (supra). As already discussed above, in my considered view, the norms laid down in the notification dated 28.04.2003 in respect of promotion above the rank of Superintending Engineer is not in conformity with the criteria of merit-cum-seniority as explained by the Hon'ble Supreme Court in B.V. Sivaiah (supra) which is the criteria mandated by the Rules for promotion above the rank of Superintending Engineer. 19. It has been stated at the Bar that during the pendency of this petition, Assam PWD has been bifurcated into two Departments, PWD (Roads) and PWD (Building & NH). Both respondent No. 4 and petitioner have since been promoted, with respondent No. 4 being the Commissioner and Secretary, PWD (Roads) and petitioner being the Commissioner and Secretary, PWD (Building & NH). But notwithstanding such promotion to the highest offices of the Department, Mr. A.K. Bhattacharyya, learned Sr. Counsel for the petitioner has strenuously argued that the subject matter of the writ petition is still alive as Commissioner and Secretary, PWD (Roads) is the cadre controlling authority and to that extent adjudication of the issue raised in this writ petition would have a bearing on the service career of the petitioner. 20. In that view of the matter, I am of the opinion that the following two questions are required to be placed before the Division Bench for an authoritative pronouncement. The two questions are:- 1. Whether the norms set out in the notification dated 28.04.2003 for promotion above the rank of Superintending Engineer in Assam PWD is in conformity with the criteria of merit-cum-seniority governing such promotion as laid down in Rule 13 (4) of the Assam Engineering (PWD) Service Rules, 1978. 2. The two questions are:- 1. Whether the norms set out in the notification dated 28.04.2003 for promotion above the rank of Superintending Engineer in Assam PWD is in conformity with the criteria of merit-cum-seniority governing such promotion as laid down in Rule 13 (4) of the Assam Engineering (PWD) Service Rules, 1978. 2. Whether the decision of this Court in Banikanta Das (supra) holding that the norms laid down in the notification dated 28.04.2003 for promotion above the rank of Superintending Engineer is not opposed to the criteria of merit-cum-seniority, lays down the correct law. 21. Registry is directed to place this case before the Hon'ble Chief Justice (Actg) for appropriate orders.