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2015 DIGILAW 151 (GAU)

SUPRABHA BORA v. STATE OF ASSAM

2015-02-10

B.K.SHARMA

body2015
ORDER (ORAL) 1. By means of this writ petition, the petitioner has challenged the promotion of the respondent No.4 to the post of U.D.A (Upper Division Assistant) effected vide order No.302 dated 02.11.2011. Although the copy of the impugned order has not been enclosed to the writ petition, but later on, the same has been enclosed as Annexure-1 to the affidavit in reply filed on 05.04.2012. According to the petitioner, since both the incumbents i.e. the petitioner and the respondent No.4 had been appointed together on the same date as LDA-cum-Typist, their seniority ought to have been determined before promoting the respondent No.4 vide the order dated 02.11.2011. It is the further case of the petitioner that she being senior in age, in absence of any merit list, ought to have been assigned higher seniority over the respondent No.4. 2. By Annexure-4 letter dated 12.08.2011 made to the Additional Director General of Police, Assam, Vigilance and Anti Corruption, the petitioner prayed for determination of her seniority above the respondent No.4 on the basis of her date of birth. Thereafter, by Annexure-5 representation dated 23.08.2011, addressed to the same authority, she also prayed for her promotion to the post of U.D.A. Said two requests were followed by her RTI application vide Annexure-6 dated 01.11.2011, by which after 11 years of the selection for the post of LDA-cum-Typist, she prayed for furnishing of the selection records. Her letter was replied to by Annexure-6 letter dated 01.12.2011, enclosing therewith the select list and the marks obtained by the candidates in typing speed test/viva-voce. As per the said select list, while the respondent No.4 obtained 1st position securing 65.9 marks, the petitioner secured 58.5 marks. 3. After the promotion of the respondent No.4 to the post of UDA, the petitioner made further application to the authority for reconsideration of her case. In this connection, she filed Annexure-7 representation dated 05.11.2011 agitating that she had been deprived of justice. 4. As per the rules holding the field, namely, The Assam Directorate Establishment (Ministerial) Service Rules, 1973, inter-se seniority of LDA appointed on the same date shall be according to the order of selection made by the appointing authority (Rule 19[5]). In this connection, she filed Annexure-7 representation dated 05.11.2011 agitating that she had been deprived of justice. 4. As per the rules holding the field, namely, The Assam Directorate Establishment (Ministerial) Service Rules, 1973, inter-se seniority of LDA appointed on the same date shall be according to the order of selection made by the appointing authority (Rule 19[5]). Placing reliance on the photocopy of the extract said to be of the General Handbook of Circulars, it is the case of the petitioner that inter-se seniority should be determined in accordance with the date of birth in absence of any merit list. Thus, the whole basis of the case of the petitioner is that since she is elder in age than the respondent No.4 and both were appointed on the same date, she should be regarded as senior to the respondent No.4 and consequently should be promoted to the post of UDA ahead of the respondent No.4. 5. Along with the writ petition, the petitioner has annexed the compilation sheet of marks pertaining to type test and viva-voce obtained in the selection for initial appointment. As per the said statement, while the respondent No.4 secured 65.9, the petitioner secured 58.5 marks. If the mark secured by them in the written examination is added, which are 49 and 39 respectively, the respondent No.4 secured much higher marks than the petitioner and she was rightly placed above the petitioner. 6. As per the provisions of Rule-9 of the aforesaid rules, promotion to the post of UDA is required to be made on the basis of seniority-cum-merit from amongst the LDA of the service, who have rendered not less than 04(four) years of service. There is no dispute that both the petitioner and the respondent No.4 had completed the requisite length of service at the time of promotion of the respondent No.4 to the promotional post of UDA. 7. The respondents, both official and private have filed their counter affidavits, in which the stand taken is that the promotion to the post of UDA was effected on the basis of the recommendation of the selection committee that was constituted for the purpose. According to the counter affidavit of the respondent No.3, the post was required to be filled up from two serving LDA’s i.e. the petitioner and the respondent No.4. According to the counter affidavit of the respondent No.3, the post was required to be filled up from two serving LDA’s i.e. the petitioner and the respondent No.4. Referring to the criteria for promotion which is seniority-cum-merit, it is the stand of the official respondents that since the respondent No.4 was senior to the petitioner, she was promoted to the post of UDA. It has also been stated that in the selection for the post of LDA, the respondent No.4 secured highest marks in the selection and occupied 1st position as against the 2nd position obtained by the petitioner. 8. In the counter affidavit filed by the respondent No.4, it has been stated that in the initial appointment against the post of LDA-cum-Typist, she occupied 1st merit position as against the 2nd position obtained by the petitioner. To buttress the said stand, she has referred to the Issue Number of the appointment orders. While in case of the respondent No.4, appointment letter was issued under D.O No.70, the same was under D.O No.71 for the writ petitioner. She has also referred to the order of confirmation of service, in which also she was shown senior to the respondent No.4. In paragraph-8 of the counter affidavit, she has stated thus:- “That the petitioner has made the allegation against the authority concerns without any base, there was an ample scope to claim the seniority for the petitioner before the authority concerns as she was placed below since beginning of her joining in the service subsequently at the time of confirmation, as in the eye of law whoever remain in the top in the order he should be considered first considering to be the senior.” 9. In reply to the said paragraph, the petitioner in her affidavit in reply without denying the aforesaid specific plea of the respondent No.4 has stated thus:- “That with regard to the statements made in paragraphs 6, 7, 8, 9, 10, 11, 13, 15 and 19 of the affidavit, the deponent begs to state that the Respondent No.4 has been promoted without following the procedure prescribed in the Rules. As per the Rules the Authorities could not have promoted the Respondent No.4 without determining the seniority between the Petitioner/Deponent and the Respondent No.4. As per the Rules the Authorities could not have promoted the Respondent No.4 without determining the seniority between the Petitioner/Deponent and the Respondent No.4. The Deponent further begs to state that to her knowledge no selection board as stated in the Affidavit was re-constituted nor there is any Government approval for the same. Thus, the promotion of the respondent No.4 could never have been cleared. Further, as already stated in the writ petition, the Superintendent of Police cum State Public Information Officer, Vigilance and Anti-Corruption, by letter dated 01.02.2011 informed the petitioner that the results of the written test conducted at the time of appointment of the Petitioner and the Respondent No.4 could not have been promoted and as such the promotion is liable to be cancelled by the Hon’ble Court.” 10. Ms. D. Borgohain, learned counsel for the petitioner in her persuasive pursuit has submitted that since as per the stand of the respondents, the selection records are not easily available, it will be unsafe to hold that the respondent No.4 is senior to the petitioner. She submits that in absence of the selection records the safest course towards determination of seniority between the petitioner vis-à-vis the respondent No.4 will be to take into account the age of both the incumbents. According to her, the petitioner being senior in age than the respondent No.4, she should be declared senior to the respondent No.4 with the consequential promotion to the post of UDA. 11. Countering the above argument, Mr. S. Chakraborty, learned State Counsel submits that both the incumbents having been appointed to the post of LDA on the same date, as per the requirements of the aforesaid Rules of 1973, the seniority is required to be determined on the basis of the merit position obtained by the incumbents. He submits that the petitioner having not raised any grievance regarding seniority over the years (10 years) till filing of the application dated 12.08.2011 (Annexure-4), the said position regarding seniority of the respondent No.4 over the petitioner cannot be disturbed at this stage. 12. I have given my anxious consideration to the submissions made by the learned counsels for the parties and have also perused the materials on record. When the matter was last taken up on 22.01.2015 the following order was passed:- “Heard learned counsel for the parties at some length. The records produced by Mr. 12. I have given my anxious consideration to the submissions made by the learned counsels for the parties and have also perused the materials on record. When the matter was last taken up on 22.01.2015 the following order was passed:- “Heard learned counsel for the parties at some length. The records produced by Mr. S. Chakraborty, learned State Counsel reveal that apart from securing lesser marks in the viva-voce and type writing test segment, the petitioner also secured lesser marks in the written examination. As against 39 marks secured by her, the respondent No.4 secured 49 marks. Learned counsel for the petitioner prays for a week’s time. The prayer is allowed. List on 29.01.2015 showing the name of Mr. S. Chakraborty, learned State Counsel.” Mr. S. Chakraborty, learned State Counsel was requested to get the records of the selection for the post of LDA-cum-Typist, which he had produced on 22.01.2015. Ms. D. Borgohain, learned counsel for the petitioner sought for permission to go through the same and accordingly the same was allowed. 13. Upon going through the records, the petitioner has filed Misc Case No.157/2015 pointing out purported irregularities in evaluation of transcription sheets pertaining to type test while making the selection for the post of LDA way back in 2000. According to the stand taken in the said Misc Case, had there been correct assessment, the petitioner would have secured 68.5 marks as against the 65.9 marks secured by the respondent No.4 in the type test and the viva-voce. Apart from the fact that such re-evaluation pertaining to the selection of 2000 cannot be done at this distant date (long 15 years) so as to unsettle the selection and that too exercising the power of judicial review under Article 226 of the Constitution of India, even if the said marks are accepted, then also having regard to the fact that in the written examination, the respondent NO.4 secured 49 marks as against 39 marks secured by the petitioner, she would rank senior to the petitioner on merit. The records produced by Mr. S. Chakraborty, learned State Counsel has revealed that while the petitioner was assigned Roll No.721, the respondent No.4 was assigned Roll No.28. The records also bear the testimony of drawing a select list in which the respondent No.4 was placed at Sl No.1 and the petitioner at Sl No.2. The records produced by Mr. S. Chakraborty, learned State Counsel has revealed that while the petitioner was assigned Roll No.721, the respondent No.4 was assigned Roll No.28. The records also bear the testimony of drawing a select list in which the respondent No.4 was placed at Sl No.1 and the petitioner at Sl No.2. One Sri Jayanta Kalita with Roll No.172 was placed at Sl No.3. 14. The petitioner cannot be permitted to rake up as non-existent issue that too after more than a decade pertaining to her initial appointment vis-a-vis the respondent No.4. At one stage of this proceeding, it was argued that the marks secured in type test and viva voce cannot determine merit position and that written examination’s marks will have to be added. Even in the written examination also, the petitioner secured lesser marks than the respondent No.4. If she had any doubt regarding the selection, she ought to have agitated the same at the earliest and not after a decade and that too co-laterally in this proceeding. 15. Above being the position, there can be no application of the provisions (photocopy and extracts only) of the Hand Book of General Circular providing for determination of seniority on the basis of age in absence of merit list. That apart, when there is definite provisions of rules made under Proviso to Article 309 of the Constitution of India, the said circular cannot get precedence over the provisions of the said Rules. However, this aspect of the matter need not detain us when the records have revealed that the respondent No.4 secured better merit position than the petitioner in the initial appointment as LDA-cum-Typist. Other documents referred to above including the order of confirmation also indicate that the respondent No.4 was all along senior to the petitioner. The grievance relating to seniority was agitated by the petitioner for the first time in 2011 (after long 11 years). 16. For all the aforesaid reasons, I do not find any merit in the writ petition an accordingly it is dismissed, leaving the parties to bear their own costs.