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2018 DIGILAW 1279 (GAU)

Haren Kumar Hazarika v. State of Assam

2018-08-30

ACHINTYA MALLA BUJOR BARUA

body2018
JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. M.K. Choudhury, learned senior counsel for the petitioner, Mr. D. Das, learned senior counsel for the respondent No. 8 and Mr. N. Sarma, learned Standing Counsel for the Education Department. Although the respondent Nos. 3 to 7 and 9 to 11 had been served as indicated in various orders of the Registry, but none had preferred to appear before the Court. Accordingly, the matter is taken up for its final consideration. It is stated by Mr. N. Sarma that during the pendency of this writ petition, the respondent No. 5 died. The petitioner was initially appointed as an Assistant District Education Officer (Non Formal Education) by a notification dated 26.02.1992, under Regulation-3(f) of the Assam Public Service Commission (Limitation and Function) Regulation, 1951 and thereafter as an Assistant Inspector of Schools as per notification dated 19.05.1992. His services were regularized by the notification dated 29.11.2000. Thereafter, the petitioner was appointed to the cadre of Inspector of Schools/District Elementary Education Officer/Deputy Director under the Assam Education Service by the notification dated 06.04.2005 and he was posted as a District Elementary Education Officer in the Directorate of Secondary Education, Assam. 2. In this writ petition, the petitioner is aggrieved by the minutes of the Selection Board held on 06.08.2013 for promotion amongst others, to the cadre of Joint Director under the Assam Education Service. As per the said minutes, the respondent Nos. 3 to 11 herein were promoted as Joint Directors while the petitioner was not so recommended. From a perusal of the minutes of the Selection Board held on 06.08.2013, it is discernible that the recommendations were made more or less in the order of seniority. From the gradation list available before the Selection Board, the first four candidates were initially not recommended as certain proceedings were pending against them. Thereafter, Serial No. 5 to 8, 10 to 11 and 14 to 15 were recommended. In total nine vacancies were under consideration and accordingly, initially six were recommended by keeping another three under the process of sealed cover and thereafter another three persons were recommended. Accordingly, in total, including the incumbents kept under sealed cover, twelve were recommended. But in all such recommendations, it is taken note that it was done in the order of seniority as per the gradation list available before the Selection Board. 3. Accordingly, in total, including the incumbents kept under sealed cover, twelve were recommended. But in all such recommendations, it is taken note that it was done in the order of seniority as per the gradation list available before the Selection Board. 3. The recommendation by the Selection Board held on 06.08.2013 has been assailed by the petitioner in this writ petition primarily on the ground that under the Rules, the criteria for promotion from the cadre of Inspector of Schools/DEEO/Deputy Director to the cadre of Joint Director is 'merit cum seniority', but the method adopted by the Selection Board in its meeting of 06.08.2013 follows the criteria of seniority alone. The relevant Rules governing the promotion is provided under the Assam Education Service Rules, 1982 (in short Rules of 1982). Apart from providing for the procedure to be followed, Rule-12(4) of the Rules of 1982 provides that the selection for promotion to the cadre of Joint Director shall be made on the basis of merit cum seniority in case of promotion. Rule-12(4) is as follows:- "Rule-12(4) provides that selection shall be made on the basis of merit-cum-seniority in case of promotion." 4. It is also taken note of that in the minutes of the Selection Board of 06.08.2013, the Board while considering the promotion to the cadre of Joint Director, had provided as follows:- "The Selection Board after examination of all ACRs decided to consider the case of the candidates having ACRs for at least 3 years preceding last 5 years. Having gone through the ACRs and other records pertaining to seniority and merit of the candidates, the Selection Board recommended the following officers for promotion to fill up 9 vacant posts of joint director under Assam Education Service." 5. The criteria of merit cum seniority has been explained by the Hon'ble Supreme Court in its various pronouncements, which are as follows:- (i) In paragraph-9 of B.V. Sivaiah & Ors. v. K. Addanki Babu & Ors., reported in (1998) 6 SCC 720 , it has been held as under:- "The principle of 'merit-cum-seniority' lays greater emphasis on merit and ability and seniority plays a less significant role. Seniority is to be given weight only when merit and ability are approximately equal." (ii) In paragraph-11 of Bhagwandas Tiwari & Ors. v. K. Addanki Babu & Ors., reported in (1998) 6 SCC 720 , it has been held as under:- "The principle of 'merit-cum-seniority' lays greater emphasis on merit and ability and seniority plays a less significant role. Seniority is to be given weight only when merit and ability are approximately equal." (ii) In paragraph-11 of Bhagwandas Tiwari & Ors. v. Dewas Shajapur Kshetriya Gramin Bank & Ors., reported in (2006) 12 SCC 574 , it has been held as under:- "The principle of 'merit-cum-seniority' lays greater emphasis on merit and ability and seniority plays a less significant role. Seniority is to be given weight only when merit and ability are approximately equal." (iii) In paragraph-39 of Sankar Deb Acharya & Ors. v. Biswanath Chakraborty & Ors, reported in (2007) 1 SCC 309 , it has been held as under:- "When the principle of merit-cum-seniority is applied, it is now a well-settled principle that great emphasis is on merit and ability and seniority plays a less significant role. Seniority has to be given weightage only when merit and ability are approximately equal." (iv) In paragraph-8 of Haryana State Electronics Development Corporation Limited & Ors. v. Seema Sharma & Ors., reported in (2009) 7 SCC 311 , it has been held as under:- "The principle of merit-cum-seniority puts greater emphasis on merit and ability and where promotion is governed by this principle seniority plays a less significant role. However, seniority is to be given weightage when merit and ability more or less are equal among the candidates who are to be promoted." (v) In paragraph-16 of Balbir Singh Bedi v. State of Punjab & Ors., reported in (2013) 11 SCC 746 , it has been held as under: "The principles of 'seniority-cum-merit' and 'merit-cum-seniority' are conceptually different, as in the case of the former, there is greater emphasis upon seniority even though the same is not the deciding factor, while in the case of the latter, merit is the deciding factor." 6. The said pronouncements of the Hon'ble Supreme Court gives us the understanding that when the criteria is merit cum seniority, the inter-se comparison of merit between the candidates would have to determined and upon such determination, the promotions be given effect with greater emphasis on merit and ability. The said pronouncements of the Hon'ble Supreme Court gives us the understanding that when the criteria is merit cum seniority, the inter-se comparison of merit between the candidates would have to determined and upon such determination, the promotions be given effect with greater emphasis on merit and ability. If a situation is arrived that the merit of two candidates are relatively equal, in such event, the element of seniority would have to be fallen back on and the one who is senior between the two would be preferred. Accordingly, in order to apply the criteria of merit cum seniority, an inter-se comparison of merit between the candidates under consideration would necessarily have to be made. Ordinarily, inter-se merit is assessed on the basis of the ACRs of the respective candidates or any other relevant materials that the Selection Board may take into account. 7. The merit assessment on the basis of the ACRs and or the other relevant materials that may be taken into account can be made either by making a quantitative assessment of the candidates as their respective para-meters may indicate or by making a qualitative assessment. In the event, the method of quantitative assessment is adopted, the parameters taken into account would have to be quantified and marks be provided to them and thereupon, depending on the respective marks that the candidates may obtain, a quantitative assessment of the merit can be made. On the other hand, if the authorities opt for the method of making qualitative assessment, the relevant criteria to be followed for making such qualitative assessment would have to be pre-determined before the selection is undertaken and thereafter make the assessment of the respective candidates on the basis of such criteria as already pre-formulated. 8. The said procedure to be adopted would lead to transparency and enable any other authority or person to understand as to whether a relative merit was assessed in a proper and desired manner or not. 8. The said procedure to be adopted would lead to transparency and enable any other authority or person to understand as to whether a relative merit was assessed in a proper and desired manner or not. When the principles indicated above is taken into consideration and compared to what was done by the Selection Board in its meeting held on 06.08.2013, this Court notices that, as indicated above, the Selection Board merely writes that after examination of all the ACRs it had decided to consider the cases of the candidates having ACRs for at least three years preceding the last five years and upon having gone through the ACR and other records pertaining to seniority and merit of the candidate, the Selection Board recommend the candidates as indicated therein. 9. In the view of this Court, merely writing that the Selection Board had gone through the ACRs and other records pertaining to seniority and merit of the candidates and thereupon make the recommendation without there being any indication as to how the inter-se merit was compared and assessed, do not meet the requirement of adopting the criteria of merit cum seniority. 10. The original record of the Selection Board of 06.08.2013 is also made available in order to verify as to whether there was any other information available before the Selection Board based upon which the inter-se merit comparison was done, but the record does not reveal the existence of any material to indicate that on facts, the inter-se merit between the candidates were evaluated. On the other hand, as already noticed above, the order of recommendation made by the Selection Board on 06.08.2013 is same as the order of seniority as available in the gradation list in the cadre of Inspector of Schools/District Elementary Education Officer/Deputy Director. The recommendation so made, also gives an indication that the Selection Board in its meeting of 06.08.2013 had not properly complied with the criteria of merit cum seniority as required to be done. 11. In view of the aforesaid conclusion, the recommendation of the Selection Board held in its meeting of 06.08.2013 is set aside and as consequence thereof, all such promotions made in favour of the respondents on the basis of such recommendation are also set aside. 12. 11. In view of the aforesaid conclusion, the recommendation of the Selection Board held in its meeting of 06.08.2013 is set aside and as consequence thereof, all such promotions made in favour of the respondents on the basis of such recommendation are also set aside. 12. Accordingly, the respondent authorities are directed to re-constitute a Selection Board for the purpose of determining the pro-motion from the cadre of Inspector of Schools/District Elementary Education Officer/Deputy Director to the cadre of Joint Director and make the necessary recommendation strictly by applying the criteria of merit cum seniority and by assessing the relative merit of the candidates as indicated above. 13. The requirement of constituting a Selection Board and making its recommendation be completed within a period of three months from the date of receipt of a certified copy of this order. It is also provided that notwithstanding the setting aside the recommendations of the Selection Board of 06.08.2013, as the respondents are holding the office in the promoted cadre for quite a long time, they will continue to do so in their respective posts till such final decision is arrived at by the Selection Board and the same is given its effect accordingly. Any such decision to be taken by the Selection Board, as directed above and the consequential final orders of promotion that may be issued, shall supersede the earlier orders of promotion given to the respondents. It is stated that in the meantime, some of the respondents who were promoted pursuant to the Selection Board meeting of 6.8.2013, had either died or superannuated from service. Accordingly, it is provided that the order of setting aside the promotion as provided hereinabove shall not be applicable in respect of such respondents, who had already superannuated from service or had died in the meantime. In terms of the above, the writ petition stands disposed of.