JUDGMENT AND ORDER : Heard Mr. B. Sinha, the learned counsel for the petitioner. The respondent Nos.1—4 are represented by Ms. M. Bhattacharjee, the learned Addl. Sr. Govt. Advocate, Assam. The learned counsel Ms. B. Das makes submission on behalf of the respondent No.5. 2. The challenge here is to the notification dated 26.4.2011 (Annexure-D), whereby Kumarika Thaumung (respondent No.5) was appointed as the Administrative Officer, in the office of the Deputy Commissioner, Karbi Anglong District, on the basis of the recommendation made by the Selection Board. 3. The Assam Ministerial District Establishment Service Rules, 1967 (hereinafter referred to as ‘the District Establishment Rules’), as amended in 2009, prescribes the mode of appointment of Administrative Officer. The Rule 6(8)(i) provides that the post of Administrative Officer is to be filled up by selection from amongst graduate employees with 15 years’ service experience, in the establishment of a D.C. The sub-clause (ii) of Rule 6(8) indicates that the Selection Board will be constituted by four officers and the Dy. Commissioner of the concerned District is to be a member, of the Selection Board. 4. The advertisement for the post was issued on 4.6.2009 (Annexure-A), where the educational and experience qualification, consistent with Rule 6(8)(i) of the District Establishment Rules, were set out. Nine candidates including the petitioner and the respondent No.5 offered their candidature but eventually, the Selection Board evaluated the merit of only six eligible applicants. 5. The meeting of the Selection Board was scheduled on 21.4.2011 and the Dy. Commissioner, under his order of 20.4.2011, nominated the Sub-Divisional Officer (Sadar), Diphu [in short ‘the SDO(S)’] to attend the Selection meeting, as a nominee of the Dy. Commissioner. After comparative assessment of the merit, on the basis of the candidate’s ACRs for the preceding 5 years, the Selection Board recommended Kumarika Thaumung (respondent No.5) and accordingly she was appointed, under the impugned order dated 26.4.2011 (Annexure-D). 6.1 The appointment of the respondent No.5, is challenged by the petitioner on the ground that the Dy. Commissioner should have participated in the selection exercise and the involvement of the DC’s nominee, in the Selection Board, has vitiated the selection process. 6.2 Claiming to be the more deserving candidate, the petitioner questions the assessment of merit, made by the Selection Board, by referring to her own unblemished service record of 22 years, in the Dy. Commissioner’s establishment. 6.3 The learned counsel Mr. 6.2 Claiming to be the more deserving candidate, the petitioner questions the assessment of merit, made by the Selection Board, by referring to her own unblemished service record of 22 years, in the Dy. Commissioner’s establishment. 6.3 The learned counsel Mr. B. Sinha then refers to the additional affidavit, recently filed by the petitioner on 2.6.2017, to project that the very good grading in the ACR of the respondent No.5, for the year 2004—05, was undeserved, as in that very year, the respondent No.5 was suspended for her defiance of a transfer order and she was warned on 21.3.2005 by the D.C., Karbi Anglong for the same cause. 7.1 On the other hand, Ms. M. Bhattacharjee, the learned Addl. Sr. Govt. Advocate submits that participation of the SDO(S) as a nominee of the D.D., does not vitiate the functioning of the Selection Board, since Rule 6(8)(ii) of the District Establishment Rules does not place any bar on the D.C., from nominating another officer to represent him, in the Selection Board meeting. 7.2 The Govt. Advocate further submits that the Selection Board assessed the comparative merit of the applicants and only when the respondent No.5 is found to have secured 24 marks, as compared to the 19 marks for the petitioner, the best merited candidate was recommended and thus it is argued that appointment process does not suffer from any infirmity. 8.1 Reacting to the challenge to the appointment of the respondent No.5, Ms. B. Das, the learned counsel refers to the superior ACR gradings in the preceding five years for the respondent No.5 and submits that the selected candidate had outstanding service records, as compared to the petitioner and therefore the counsel argues that, the selection of the better merited person, cannot be a matter of challenge, by the unsuccessful applicant. 8.2 On the issue of warning administered to the respondent No.5 on 21.3.2005, the learned counsel produces the D.C’s. exoneration order dated 23.9.2005. She projects that the ACR for the year 2005—06 with very good grading was prepared 5 years later on 25.8.2010 and hence she argues that the superior grading was rightly taken into account by the Selection Board, for comparative assessment of the merit of the applicants. She projects that the ACR for the year 2005—06 with very good grading was prepared 5 years later on 25.8.2010 and hence she argues that the superior grading was rightly taken into account by the Selection Board, for comparative assessment of the merit of the applicants. 8.3 The respondent No.5 argues that when the Selection Board had assessed the comparative merit on objective criterion and found the respondent No.5 to be the most meritorious with her score of 24 marks, as compared to the petitioner’s tally of 19 marks, interference of the Court would not be justified with the bonafide recommendation of the Selection Board. 8.4 On the participation of the nominee instead of the D.C., the learned counsel Ms. B. Das firstly submits that the District Establishment Rules does not prohibit the participation of the D.C’s. nominee and secondly, as the Selection Board followed only objective criteria, for assessment and no individual marks was awarded by any of the member of the Selection Board, the recommendation made in favour of the most meritorious candidate, cannot be a subject matter of interference, in a judicial forum. 9. Considering the core issue of the dispute, it would be appropriate to compare the ACR gradings, for the petitioner and the respondent No.5:- ACR FOR THE YEAR PETITIOENR RESPONDENT NO.5 1.4.2005—31.3.2006 VERY GOOD OUTSTANDING (28.12.05—31.3.06) 1.4.2006—31.3.2007 VERY GOOD OUTSTANDING (April—September, 2006) EXCELLENT (6.9.2006—31.3.2007) 1.4.2007—31.3.2008 VERY GOOD EXCELLENT 1.4.2008—31.3.2009 VERY GOOD VERY GOOD 1.4.2009—31.3.2010 GOOD OUTSTANDING 10. The Rule 6(8)(ii) of the District Establishment Rules prescribes the experience and educational requirement as qualification criteria, but it is stipulated that the Administrative Officers are to be appointed by selection. On this aspect it is averred in the Government’s affidavit filed on 23.12.2011, that the Selection Board followed an objective criterion by awarding appropriate marks for respective ACR’s gradings. The marks for each category of grading were as under:- Outstanding/Excellent : 5 marks, Very Good : 4 marks and Good : 3 marks 11.1 The total tally of each candidate was with reference to their ACR gradings only and as earlier noted, for the relevant five years, the petitioners had four Very Good gradings in the year 2005—06, 2006—07, 2007—08 and 2008—09 and for these, she was given 4X4=16 marks. For her Good grading for the year 2009—10, she was awarded 3 marks for that year’s ACR. For her Good grading for the year 2009—10, she was awarded 3 marks for that year’s ACR. Thus 19 marks was the total score for to the petitioner. 11.2 On the other hand, the respondent No.5, as can be seen from her ACR gradings, extracted above, had outstanding/excellent grading for 2006—07 and 2007—08 and outstanding grading for 2009—10. This will earn her 5X3=15 marks. She was graded as Very Good for two years, i.e.2004—05 and 2005—06. Therefore another 8 marks got added and her final score was far above the petitioner. 11.3 The Selection Board, as it appears, assessed the comparative merit of the candidates on the basis of the ACR gradings and when such objective criteria was adopted, the better merited candidate deservingly was recommended for appointment. 12. In so far as the Dy. Commissioner deputing his nominee to the Selection Board, the sub-clause (ii) of Rule 6(8) of the District Establishment Rules, does not rule out a substitution and hence the participation of the SDO(S) in the Selection Board, as the nominee of the Dy. Commissioner, does not in my perception, vitiate the functioning of the Selection Board. Such conclusion is a logical fall out because objective criteria was followed and there was no scope for any individual members, to sway the result of assessment of the candidates. The integrity of the Selection Board, in the present case does not get compromised on account of the participation of the Dy. Commissioner’s nominee since objective factors was the basis for the selection. 13. Amongst the two rival litigants, the petitioner had longer experience but Administrative Officer is to be appointed on the basis of selection and not on the basis of seniority. The relevant Rule 6(8) of the District Establishment Rules was considered by the Gauhati High Court in Nawab Nurul Islam vs. State of Assam, reported in MANU/GH/0344/2012, where the learned Judge made the following observation: “…………………………………………. 3. Rule 6 (8) of the aforesaid Rules provides for filling up the post of Administrative Officer with the requisite criteria of serving at least 15 years in any Deputy Commissioner's establishment and having working experience at different branches in general and in the Establishment Branch in particular. A candidate must be graduate in any discipline from a recognised University. 3. Rule 6 (8) of the aforesaid Rules provides for filling up the post of Administrative Officer with the requisite criteria of serving at least 15 years in any Deputy Commissioner's establishment and having working experience at different branches in general and in the Establishment Branch in particular. A candidate must be graduate in any discipline from a recognised University. The appointing authority is to advertise the vacancies inviting applications from the suitable persons eligible for appointment in the post of Administrative Officer, fulfilling the above requirements. The selection is to be made on the basis of the ACRs for the last 5 consecutive years and relevant service particulars of the eligible candidates. The selection board shall examine the ACRs and service particulars of the candidates taking into consideration the respective merits of the candidates and thereafter shall prepare a list of names in order of preference for recruitment to the post. The list shall be forwarded to the appointing authority by the selection Board for approval. The select list is to remain valid for 12 calendar months from the date of approval of the appointing authority. …………………………………” 14. The awarding of differential marks for different ACR gradings was supported in Nawab Nurul Islam (Supra) and the Court observed that the comparative merit should be evaluated and the emphasis should be on the merit & ability and seniority plays a secondary role. 15. The respondent No.5 was exonerated of the old warning well before her ACR for the year 2004—05, was finalized on 25.8.2010. Therefore the alleged failure of the respondent No.5, to join in her transferred post at Bokajan in December, 2004, cannot warrant a lower ACR grading for the year 2004—05. For this reason, the Court is not inclined to accept the petitioner’s argument that the respondent No.5 was assessed on undeserved Very Good grading, for the year 2004—05. 16. When the appointment is made on merit as was evaluated by the Selection Board and it is seen that objective criteria was adopted, the High Court should not in my understanding act as an Appellate Authority and interfere with the assessment, made by the competent Selection Board. Since substantial compliance of the mandate of the District Establishment Rules are seen here, no infirmity is found in the decision making process. It is declared accordingly. 17. Since substantial compliance of the mandate of the District Establishment Rules are seen here, no infirmity is found in the decision making process. It is declared accordingly. 17. Following the above conclusion, the appointment of the respondent No.5 does not justify any interference. The case is accordingly dismissed. No cost.