JUDGMENT AND ORDER : 1. Heard Mr. R. Mazumdar, the learned counsel for the writ petitioner, Mr. B. Goswami, the learned Additional Advocate General, Assam and Mr. D.K. Das, the learned counsel appears for the private respondent No.4. 2. The case of the writ petitioner in brief is that he joined his service in the Water Resources Department (the erstwhile Flood Control Department) under the Government of Assam in the year 1979 as an Assistant Engineer and since then, the petitioner has earned his promotion and career progression and currently holding the post of Additional Chief Engineer, Water Resources Department after having joined the post on 26.2.2016. 3. The respondent No.4 on the other hand initially joined the service on 28.3.1987/89 and thereafter, he was promoted to the post of Superintending Engineer in the year 2014 and presently he is also holding the post of Additional Chief Engineer after joining the said post on 12.7.2015. 4. The State respondent prepared the final gradation list of Additional Chief Engineer (Civil) under the Water Resources Department in the year 2017 which was published on 20.1.2017. In the said list, the name of the petitioner appears at Serial No.2 while the name of the respondent No.4 appears at Serial No.1. Since, the respondent No.4 belongs to the reserved class i.e., Schedule Tribe (Hills) (ST(H) for short), he had earned accelerated promotion. 5. The Water Resources Department maintains a roster register for the post of Chief Engineer which reflects the cadre strength of the Chief Engineer to be two (2) posts. The two posts are required to be filled up by way of promotion and the reservation of roster point are reflected at Serial No.5, 8, 14 for the candidates belonging to the Schedule Tribes (Plains) (ST(P) for short), Schedule Caste (SC for short) and ST(H) respectively. The roster register is in accordance with the Schedule-II of the Assam Scheduled Caste and Schedule Tribes (Reservation of Vacancies in Services and Posts) (Amendment) Act, 2012 ( the SC & ST Reservation Act for short) which gives the model post register in cadres having number of 13 or less than 13 posts. The roster register also indicate the persons who have till now held the post of Chief Engineer and their status promoted/retired/serving as on date. The roster register also indicate the persons who have till now held the post of Chief Engineer and their status promoted/retired/serving as on date. The person holding the post against the roster point No.5 has been promoted to the post of Secretary to the Government of Assam, Water Resources Department and the incumbent at roster point No.9 is due to retire on 30.06.2017. Due to the promotion of the incumbent against roster Point No.5 on 28.2.2017, the Department concerned has initiated steps for filing up the post of Chief Engineer, Water Resources Department in terms of the Assam Engineering (Flood Control Department) Service Rules, 1981 ( the service Rules of 1981 for short). 6. According to the roster register maintained by the Department, the post which has become vacant relates to roster point No.10, which is an un-reserved post. According to the petitioner, he is fit and eligible to be considered against the said post and that he is the senior-most incumbent in the post of Additional Chief Engineer in the un-reserved category. However, to his knowledge and information, the official respondents have contemplated to fill up the post by accommodating respondent No.4 in the said post despite the fact that the vacancy is relatable to roster point No.10. Therefore, the petitioner apprehending that the respondent No.4 will be considered for promotion over him, he submitted a representation on 31.03.2017 (Anneuxre-5) to the respondent No.2. The official respondents having not considered his representation, the petitioner is before this Court. 7. Appearing for the petitioner, the learned counsel Mr. R. Mazumdar submits that the petitioner is the senior-most incumbent holding the post of Additional Chief Engineer amongst the un-reserved category in the department and he has good service records. Based on the roster register maintained by the Department, the vacancy has to be filled up from amongst the un-reserved candidates since the same relates to roster point No.10. He submits that respondent No.4 is junior to him in service and only due to his accelerated promotion in service by virtue of being in a reserved category, his name appears above him in the gradation list dated 20.1.2017. The learned counsel submits that though the name of respondent No.4 appears at Sl. He submits that respondent No.4 is junior to him in service and only due to his accelerated promotion in service by virtue of being in a reserved category, his name appears above him in the gradation list dated 20.1.2017. The learned counsel submits that though the name of respondent No.4 appears at Sl. No.1 in the said list, he cannot be considered for promotion to the post of Chief Engineer over and above the petitioner in terms of the Office Memorandum dated 03.08.2016 since respondent No.4 has earlier gained accelerated promotion with seniority. 8. Referring to the Office Memorandum dated 3.8.2016, more particularly paragraph (iv), Mr. R. Mazumdar submits that if a situation arises during the promotion process, in which stipulated percentage as in respect of reserved category is made, but in the gradation list/seniority list there are candidates of reserved category who on merit are entitled to the promotion, his/her case will only be considered for promotion on merit provided such candidate has not gained seniority by way of any accelerated promotion earlier. Therefore, since the respondent No.4 gained his seniority in the post of Additional Chief Engineer by way of accelerated promotion, he cannot be considered for promotion in the vacancy that has arisen. 9. The learned counsel for the petitioner further submits that although the selection and promotion to the post of Chief Engineer under the Department is yet to be finalized and implemented, the petitioner has all the apprehension that the respondent No.4 will be considered against the vacant post instead of the petitioner and his apprehension has been confirmed from the affidavit-in-opposition filed by the respondent Nos.1 and 2. He submits that the petitioner has every right and entitlement to suitable protection by this Court for his apprehension in not being considered for promotion to the vacant post in question. He submits that when the petitioner’s right is likely to be illegally invaded or threatened or when the actions of the respondents clearly indicate that rights of the petitioner is being illegally invaded, it is open for the petitioner to ventilate his grievance in a writ proceeding before this Court. He submits that when the petitioner’s right is likely to be illegally invaded or threatened or when the actions of the respondents clearly indicate that rights of the petitioner is being illegally invaded, it is open for the petitioner to ventilate his grievance in a writ proceeding before this Court. To bring home of his argument, the learned counsel refers to the decision of the Apex Court rendered in case of State of Orissa –vs- Ram Chandra Dev reported in ( AIR 1964 SC 685 ) which was also relied upon by this Court in the case of U Ship bester Kharkongor –vs- Khasi Hills Autohomous District Council reported in 1997 (2) GLJ 619. 10. The learned counsel for the petitioner submits that since the State respondents have formulated the criteria to be followed by the Selection Committee in examining and recommending eligible candidates for promotion vide Office Memorandum dated 3.8.2016 (Annexure-4), the Section committee cannot deviate from the said guidelines. In the instant case, despite the fact that the respondent No.4 having earned accelerated promotion and seniority over the petitioner who otherwise is much senior to the respondent No.4 in the service, the Selection committee cannot ignore the guidelines contained in the Office Memorandum dated 3.8.2016. To this submission, the learned counsel relies upon the decision rendered by the Apex Court in the case of Ramana Dayaram Shetty –vs- International Airport Authority of India reported in 1979(3) SCC 489 wherein it was held (at paragraph 10) that.. “it is a well settled role of administrative law that an executive authority must be rigorously held to the standards by which it professes its action to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. It is rule of administrative law which has been judicially evolved as a check against exercise of arbitrary power by the executive authority”. He therefore submits that the selection committee for filling up the post of Chief Engineer in the Department is bound to follow the Office Memorandum dated 3.8.2016 and in such event, the question of considering respondent No.4 and recommending him for promotion would not arise. He therefore submits that the selection committee for filling up the post of Chief Engineer in the Department is bound to follow the Office Memorandum dated 3.8.2016 and in such event, the question of considering respondent No.4 and recommending him for promotion would not arise. In such circumstances, the learned counsel submits that a suitable direction be issued by this court to the State respondents for considering him against said vacant post at the earliest in view of the fact that the petitioner is due to retire on superannuation on 30.6.2017. 11. Appearing for the State respondents, Mr. B. Goswami, the learned Additional Advocate General submits that against the writ petition, the State respondents have filed their affidavit-in-opposition on 8.5.2017 wherein they have contended that presently there are five Additional Chief Engineers working in the Department and in the order of seniority, the respondent No.4 is at Serial No.1 while the petitioner is at Serial No.2. Although the respondent No.4 earned accelerated promotion to the post of Additional Chief Engineer in the year 2015 by virtue of being ST(H) candidate, the petitioner cannot claim his consideration over the respondent No.4 since respondent No.4 is senior to the petitioner in the feeder post of Additional Chief Engineer. He also submits that there is no bar in considering the respondent No.4 for promotion since his merit and seniority cannot be ignored. He further submits that the criteria for selecting eligible candidates for promotion is based on merit in terms of the Service Rules of 1981 and the selection committee upon duly considering the eligible candidates for the post of Chief Engineer found respondent No.4 to be suitable for the post and accordingly a recommended him for promotion. However, the recommendation is pending approval from the competent authority in the State. Therefore, in the given circumstances, the writ petition can only be termed as premature since none of the rights of the petitioner has been violated. 12. The learned Additional Advocate General has also produced the relevant records pertaining to the selection process undertaken by the selection committee and submits that since the selection was strictly based on the approved guidelines, there is nothing wrong with the recommendation made. 12. The learned Additional Advocate General has also produced the relevant records pertaining to the selection process undertaken by the selection committee and submits that since the selection was strictly based on the approved guidelines, there is nothing wrong with the recommendation made. Moreover, when the recommendation is yet to be acted upon, the writ petition being premature and coupled with the fact that the petitioner cannot be said to have any vested right, the same should be dismissed. 13. Against the writ petition, the private respondent No.4 has also filed his affidavit-in-opposition on 8.5.2017. Appearing for the respondent No.4, the learned counsel Mr. D.K. Das, submits that respondent No.4 belongs to the reserved category of ST(H) and therefore, he is entitled all the rights and privileges conferred to the reserved candidates under Article 16(4-A) of the Constitution of India as well as the provision enshrined in the SC & ST Reservation Act. He submits that the respondent No.4 joined the services in the year 1987 and was promoted in the rank of Executive Engineer in the year 2007 and thereafter to the post of Superintending Engineer in the year 2014 and finally, he was promoted to the post of Additional Chief Engineer(Civil) on 12.7.2015. The learned counsel relying upon the Office Memorandum dated 29.12.2014 (pg.15) (Annexure-A series of his affidavit) submits that if any unreserved vacancy arise in a cadre and there are SC, ST(P), ST(H) candidates within the common zone of consideration in the feeder cadre, such candidate cannot be denied promotion on the plea that the post is not reserved, such candidates shall have to be considered for promotion along with other candidates treating him as if he belongs to the unreserved category. In case he is selected, he shall be appointed to the post and shall be adjusted against the unreserved post. The said provision has been provided at paragraph-3.3 of the Office Memorandum dated 29.12.2014. He therefore submits that although the vacancy may refer to roster point No.10 meant for unreserved category candidates, the respondent No.4 is bound to be considered for the vacancy since his seniority position as well as his merit warrants such consideration. 14. In response to the Office Memorandum dated 3.8.2016, Mr. He therefore submits that although the vacancy may refer to roster point No.10 meant for unreserved category candidates, the respondent No.4 is bound to be considered for the vacancy since his seniority position as well as his merit warrants such consideration. 14. In response to the Office Memorandum dated 3.8.2016, Mr. D.K. Das submits that Clause (iv) of the said Office Memorandum is ultra vires to the various decision rendered by the hon’ble Apex Court in so far as it relates to debarring a candidate of the reserved category from being considered for promotion despite having merit and seniority only for the reason of having been given accelerated promotion earlier with seniority. He submits that in fact, the same has been put to challenge in a separate proceeding before this Court i.e., W.P. (C) No.5505 of 2016 which is pending disposal. He submits that by adhering to the criteria of merit-cum- seniority in a promotion process, merit plays a primary role and seniority comes in when merit is at par amongst the candidates and it is then when seniority is to be given due weight age. Similarly, when the respondent No.4 has earned merit in his service career along with seniority, there is no reason for him to be left out from the selection process. If the selection committee has recommended the respondent No.4 against the vacant post, there is no infirmity in the same and the interference of this Court would not be called for. 15. Mr. D.K. Das further submits that a meeting was held on 24.8.2016 by the Committee on the welfare of the SC and ST, Assam Legislative Assembly chaired by the Commissioner of the Welfare of SC and ST, in the said meeting Clause (iv) of the Office Memorandum dated 3.8.2016 was examined and deliberated upon. After such process, it was resolved that the same should be modified in the following manner: “………….. If an action arise during the promotion process, in which stipulated percentage in respect of reserve candidate is met, but in the gradation list/seniority list there are candidates of reserve category who on merit or seniority is entitled to the promotion, is/ her case shall be considered for promotion on merit or seniority against the unreserved roster…………”. 16. If an action arise during the promotion process, in which stipulated percentage in respect of reserve candidate is met, but in the gradation list/seniority list there are candidates of reserve category who on merit or seniority is entitled to the promotion, is/ her case shall be considered for promotion on merit or seniority against the unreserved roster…………”. 16. The learned counsel submits that the above modification has been re-commended in terms of the Government of India, Ministry of Personnel Public Grievance and Pension, the Department of Personnel and Training vide Office Memorandum dated 2.7.1997 and 11.7.2002. He submits that the Office Memorandum under reference is relatable to the various judicial pronouncements of the Apex Court as well as the High Court. Although the recommendation of the Committee vide its meeting minutes dated 24.8.2016 is yet to be approved and implemented by the State Government but nevertheless, the same is to be adopted by the selection committee as it is the correct position in law with regard to the rights of reserved class as guaranteed under Article 16 (4-A) of the Constitution of India. 17. To bring home his argument that the respondent No.4 is entitled to his seniority upon his accelerated promotion, Mr. D.K. Das relies upon the decision of the this Court rendered in the case of Bhogeswar Saikia & Ors –vs- State of Assam & Ors. reported in 2011(2) GLR 704. He submits that the said decision has not been challenged in any appellate forum and therefore the same has attained its finality. The learned counsel goes on to rely upon the decision of the Apex Court in the case of Ritesh R. Shah –vs- Dr. YL Yamul and Ors. reported in 1996(3) SCC 253 to contend that when a candidate is admitted on his own merit then such admission is not to be counted against quota reserved for SC or any other reserved category. The Apex Court in the said decision of Ritesh R. Shah (supra) also examined the case of Indra Sawhney & Ors –vs- Union of India & Ors. as well as the case of R.K. Sabharwal –vs- State of Punjab to arrive to its conclusion. The Apex Court in the said decision of Ritesh R. Shah (supra) also examined the case of Indra Sawhney & Ors –vs- Union of India & Ors. as well as the case of R.K. Sabharwal –vs- State of Punjab to arrive to its conclusion. Therefore, the learned counsel contends that his candidature for the post in question cannot be limited and restricted to the roster point formulated by the department if the respondent No.4 has merit and seniority in the feeder post of Additional Chief Engineer. Upon being recommended and selected for the post, respondent No.4 will have to be place him against the un-reserved category and not count his promotion against the reserved quota in the roster point . 18. Mr. D.K. Das further relies upon the decision of the Apex Court rendered in the case of Jitendra Kumar Singh -vs- State of Uttar Pradesh and Ors. reported in 2010 (3) SCC 119 to contend the fact that the relaxation and the benefit flowing out of such reservation in no way infringes upon Article 16(1) of the Constitution of India in as much as such concessions are only to bring the reserved candidates in the zone of consideration so that they can participate in the open competition on merit. Similarly, by way of the reservation and promotion, respondent No.4 has earned a place in the zone of consideration and therefore, there cannot be any reason whatsoever to debar him from being considered against the post in question. 19. Mr. D.K. Das finally submits that the instant writ petition seeking mandamus or certiorari is not maintainable at this stage in as much as the petitioner does not have a legal right to be enforced. On facts, he submits that the recommendation of the selection committee is yet to be approved by the appropriate authority and also the selection and recommendation not having been published or acted upon, the petitioner cannot have any legitimate grievance and much less, an enforceable right to seek court’s interference under Article 226 of the Constitution of India. He submits that a person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to abstain from doing something. In this context, he relies upon the decision of the Apex Court in the case of Mani Subrat Jain and Ors. He submits that a person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to abstain from doing something. In this context, he relies upon the decision of the Apex Court in the case of Mani Subrat Jain and Ors. –vs- State of Haryana and Ors. reported in 1977(1) SCC 486 . 20. I have considered the submissions made by the rival parties and perused the materials available on records including, the records of the Selection Committee produced by the learned Additional Advocate General. 21. The facts broadly are not in dispute amongst the rival parties and therefore, the question to be looked into and decided is to whether the respondent No.4 should be considered for promotion against the vacant post of Chief Engineer by including him in the zone of consideration. In other words, whether the inclusion of the respondent No.4 in the zone of consideration can be held to be impermissible in view of the guidelines provided in the Office Memorandum dated 3.8.2016. As may be noticed, the respondent No.4 by virtue of his accelerated promotion has been promoted to the post of Additional Chief Engineer(Civil) on 12.7.2015 while the petitioner was promoted on 26.2.2016. In the case of Bhogeswar Saikia (supra), it has been held by this Court that person in the reserved category on having been given the benefit of accelerated promotion should be granted consequential seniority in the promotion post. Furthermore, in the case of Ritesh R. Shah (supra) as held by the Apex Court, after examining the decision rendered by the same Court in the case of Indra Sawhney & Ors. (supra) as well as the case of R.K. Sabharwal (supra) and Jitendra Kumar Singh (supra) it has held that a candidate is entitled to be admitted on the basis of his own merit and on such admission, the same should not be counted against the quota reserved for the SC or the ST or in the other reserved category. 22. The view expressed by the Apex Court in the case of Jitendra Kr. Singh (supra) is also explicitly clear with regard to the concession and consideration given to a reserved category. 22. The view expressed by the Apex Court in the case of Jitendra Kr. Singh (supra) is also explicitly clear with regard to the concession and consideration given to a reserved category. It was observed that such concession and consideration is for the purpose of bringing the reserved candidate in the zone of consideration to enable such candidate participate in the open competition. When the candidates participates in the selection process, it is immaterial as to which category the candidates belongs to. The office Memorandum dated 3.8.2016 otherwise provided that a candidate of the reserved category cannot be considered for promotion on merit if such candidate has gained seniority by way of accelerated promotion earlier. This provision in my considered opinion has to be only considered together with the Office Memorandum issued on 29.12.2014 which has been published pursuant to the law laid down by the Apex Court and followed in the Office Memorandums dated 2.7.1997 and 11.7.2002 by the Ministry of Personnel & Public Grievance, Department of Personnel and Training, Government of India. 23. The Service Rules of 1981 provides that selection for promotion for different cadres shall be made on the basis of merit cum seniority. However, in respect of all such promotion to the rank of Superintending Engineer and above, the criteria for such promotion will be on merit only. The said provision is provided under Rule 13(4) of the Service Rules of 1981. Rule 13(7) also provides that the inclusion of a candidate’s name in a select list shall confer no right to promotion unless the appointing authority is satisfied after such enquiry as may be considered necessary, that a candidate is suitable for promotion. 24. A perusal of the relevant records produced by the learned Additional Advocate General reveals that the Selection Board held its meeting on 30.3.2017 for selection to the post of Chief Engineer from the post of Additional Chief Engineer(Civil) under the Department for the year 2017 as per the Service Rules of 1981 and the recommendation of the Selection Board’s meeting was in favor of the respondent No.4 based on merit. Besides indicating the conclusion of the Selection Board, it would not be necessary to indicate the respective points scored by the respective candidates who were considered. The question is as to whether such selection was held as per norms and relevant rules. Besides indicating the conclusion of the Selection Board, it would not be necessary to indicate the respective points scored by the respective candidates who were considered. The question is as to whether such selection was held as per norms and relevant rules. Upon perusal of the proceeding undertaken by the Selection Board, I do not find any infirmity in the criteria adopted and as for the assessment, it is a well settled position in law that Court would not interfere with the finding of duly constituted selection process when no infirmity is found in the decision making process. 25. Upon hearing the submissions of the rival parties and after considering the materials available on record in its entirety, I do not find that the Office Memorandum dated 3.8.2016 presents the correct picture and position in law. Since the same is not under challenge in this proceeding, the Court refrains from interfering with it. However, it is is made clear that same cannot in any way be an impediment in the finalization of the selection process for filing up of the post of Chief Engineer under the Water Resources Department by including respondent No.4 in the zone of consideration. 26. Having answered thus, the question with regard to the maintainability of the writ petition shall require no examination since the same would be of a less consequence under the given circumstance. 27. In the result, the writ petition fails and the same is accordingly dismissed. There will be no order as to cost.