JUDGMENT : N. UNNI KRISHNAN NAIR, J. 1. Heard Mr. A. Chamuah, learned counsel for the petitioner. Also heard Mr. R. Dhar, learned Addl. Senior Government Advocate appearing for the respondent nos. 1 to 3 and Ms. N.S. Thakuria, learned counsel appearing for the respondent nos. 4 to 7. 2. The petitioner in the present proceeding, has assailed an order dated 02.12.2019; insofar as, the promotion effected vide the same in respect of the respondent nos. 4 & 5 to the post of Senior Assistant and in respect of respondent no. 6 to the post of Accountant. The petitioner has also presented a challenge to an order dated 06.01.2020, promoting the respondent no. 6 herein, to the post of Superintendent and the respondent no. 7 to the post of Senior Assistant. 3. The brief facts requisite for adjudication of the issue arising in the present proceeding is noted as under: The petitioner had joined the services of the respondent no. 2 i.e. the Assam State Development Corporation for Other Backward Classes Limited (hereinafter referred to as ‘the Corporation’) as Junior Assistant on 30.07.1990. In the year 1998, a departmental proceeding came to be instituted against the petitioner and he was charged with misappropriation of cash amounting to Rs. 56,924.14 (Rupees Fifty Six thousand Nine Hundred Twenty Four and Fourteen Paisa only) along with other charges of dereliction of duty. On conclusion of the departmental proceeding, instituted against the petitioner, vide an order dated 28.01.2000, the petitioner was imposed with the penalty of withholding of 03(three) service increments with cumulative effect. Further, recovery of the defalcated amount along with simple interest @ 5% per annum also came to be directed. The currency of the said penalty so imposed upon the petitioner expired in the year 2004. It is to be noted that the petitioner had not assailed the said penalty imposed upon him by the disciplinary authority and he had complied with the directions so passed in this respect. The respondent Corporation, for the purpose of regulating the manner of recruitment to various posts available in the Corporation, proceeded to publish the Assam State Development Corporation for OBC Ltd (Ministerial Establishment Service) Rules, 1995. In the case of the incumbents working in the post of Junior Assistant, the next promotional avenue in their respect was specified as the post of Senior Assistant. In the case of the incumbents working in the post of Junior Assistant, the next promotional avenue in their respect was specified as the post of Senior Assistant. Posts being available in the Corporation, the respondent authorities had initiated a process of filling the posts so involved by way of promotion. Basing on the recommendation of the Selection Committee, the respondent no. 3 proceeded to promote the respondent nos. 4 & 5 herein, vide issuance of an order dated 02.12.2019 to the post of Senior Assistant. Vide the said order, the respondent no. 6 herein also came to be promoted to the post of Accountant. It is to be noted that the petitioner is senior to the respondent nos. 4, 5 & 6 in the cadre of Junior Assistant and the criteria mandated for such promotion is “seniority-cum-merit.” It is further projected that the case of the respondent no. 6 was further considered for promotion to the post of Superintendent and he was so promoted vide an order dated 06.01.2020. The resultant vacancy arising in the post of Senior Assistant on account of the promotion of the respondent no. 6 to the post of Superintendent was so filled up by promoting the respondent no. 7 herein. The petitioner although being senior to the respondent nos. 4, 5 & 7 having not being so promoted to the cadre of Senior Assistant, as well as assailing the promotion made in respect of the respondent no. 6 to the post of Accountant and thereafter, to the post of Superintendent, being so aggrieved, had instituted the present proceeding. 4. Mr. A. Chamuah, learned counsel for the petitioner, by reiterating the above facts has submitted that the criteria for promotion to the post of Senior Assistant being “Seniority cum merit”, no reasons was so assigned as to why the petitioner came to be so superseded by the respondent nos. 4 & 5 for the said promotion vide the order dated 02.12.2019. Mr. Chamuah, learned counsel submits that the respondent authorities had not informed the petitioner about the existence of any adverse remark in his ACR, which would have the effect of the petitioner being denied the promotion to the cadre of Senior Assistant. Mr. Chamuah, learned counsel has further submitted that the petitioner could not have been superseded in the matter of promotion to the cadre of Senior Assistant by the respondent nos. Mr. Chamuah, learned counsel has further submitted that the petitioner could not have been superseded in the matter of promotion to the cadre of Senior Assistant by the respondent nos. 4 & 5. 5. Mr. Chamuah, learned counsel for the petitioner with regard to the promotion so effected in the case of the respondent no. 6, by referring to the Rules of 1995, has submitted that for recruitment to the post of Accountant, an incumbent has to have a Bachelor degree in Commerce with Advance Accountancy as one of its subject along with 7 years of service on the first day of the year in which the selection is made. Mr. Chamuah, learned counsel by referring to the gradation list of the Ministerial Staff brought on record in the present writ petition has submitted that the respondent no. 6, who was working at the relevant point of time as a Junior Assistant, had only a Bachelor degree in Arts and accordingly, in terms of the provisions of the said Rules, he was clearly ineligible for being considered for the said promotion. 6. Mr. Chamuah, learned counsel by referring to the reason assigned by the Corporation in the affidavit filed by it, for justifying the denial of promotion to the petitioner, to the effect that on account of the imposition upon him of withholding of 03 years service increments with cumulative effect vide the order dated 28.01.2000, the seniority of the petitioner also stood depressed/lowered in the cadre of Junior Assistant, has submitted that the same is clearly perverse and imposition of penalty of withholding of increments would not also lead to the loss of seniority of the delinquent. Mr. Chamuah, learned counsel in support of his submissions has relied upon a decision of the Hon’ble Supreme Court, in the case of Md. Habibul Haque vs. Union of India and Ors. 1995 Supp. (2) SCC 140. 7. Mr. Chamuah, learned counsel further by referring to the order dated 06.01.2020 has submitted that the respondent no. Mr. Chamuah, learned counsel in support of his submissions has relied upon a decision of the Hon’ble Supreme Court, in the case of Md. Habibul Haque vs. Union of India and Ors. 1995 Supp. (2) SCC 140. 7. Mr. Chamuah, learned counsel further by referring to the order dated 06.01.2020 has submitted that the respondent no. 6, within the period of one month of his promotion to the post of Accountant, was again promoted to the post of Superintendent in clear violation of the provision of the said Rules of 1995, which mandates that for recruitment to the post of Superintendent, an incumbent must have rendered at least 03 years of service as a Senior Assistant/Accountant on the first day of the year in which the selection or promotion is made. Mr. Chamuah, learned counsel has further submitted that the power to relax the eligibility criterias as stipulated in the Recruitment Rules of 1995 is vested with the Board and the respondent authorities have not brought on record any materials to demonstrate that for the purpose of promotion to the post of Superintendent in case of the respondent no. 6, any such relaxation was granted by the Board of the Corporation. Accordingly, he submits that the promotion of the respondent no. 6 to the post of Superintendent is clearly in violation of the provisions of the said Rules of 1995 and accordingly would call for an interference by this Court. 8. In the above premises, Mr. Chamuah, learned counsel for the petitioner has submitted that the promotions as effected in respect of the respondents no. 4, 5, 6 & 7 to the posts involved, would call for an interference by this Court. 9. Mr. R. Dhar, learned counsel appearing for the Corporation has submitted that the contention of the petitioner that he is senior to the respondent nos. 4, 5, 6 & 7 is clearly misplaced, inasmuch as, on account of imposition of the penalty of withholding of 03 service increments with cumulative effect, upon him, the petitioner had lost his seniority in the cadre of Junior Assistant and the said penalty having not been set aside either by the appellate authority and/or by any competent Court of law, the imposition of the said penalty would mandate that the seniority of the petitioner in the cadre of Junior Assistant stood depressed. It is submitted that the petitioner while being recruited on 30.07.1990, the respondent nos. 4, 5, 6 & 7 were so recruited on 30.07.1990, 31.07.1990, 27.12.1990 and 23.03.1992 respectively. The withholding of the 03 service increments with cumulative effect and the consequential lowering of the seniority of the petitioner on account of the same would make the petitioner junior to the respondents no. 4, 5, 6 & 7, who were so appointed as Junior Assistant in the Corporation within the period of said 03 years, by which the seniority of the petitioner was depressed. Mr. Dhar, learned counsel has submitted that the Rules of 1995 were amended by the Assam State Development Corporation for OBC Ltd. [Ministerial Service (amended)] Rules, 2019. 10. Mr. Dhar, learned Additional Senior Government Advocate, by placing on record a copy of the said Amendment Rules of 2019, has submitted that the manner of recruitment to the post of Accountant was also amended vide the said Amendment Rules of 2019, and it was now provided that in the event, sufficient qualified or suitable person not being available from amongst the employees of the Corporation for appointment to the post of Accountant, the same may be so made by selection on the basis of suitability from amongst Junior Assistants of the Head Office, who possesses a Bachelor Degree in Arts/Science/Commerce. Accordingly, it is submitted that the stipulations as made in the provisions of the Rules of 1995, pertaining to recruitment to the post of Accountant that, such candidate being so considered must have a B.Com degree with Advance Accountancy as one of its subject, having been removed, the promotion of the respondent no. 6 herein, to the post of Accountant so effected after the Amendment Rules of 2019 had come into force, would not mandate an interference by this Court. 11. Mr. Dhar, learned counsel submits that the stipulations in the Rules of 1995, pertaining to the recruitment to the post of Superintendent, mandating incumbents being so considered to have rendered at least 03 years of service as Senior Assistant/Accountant having been removed, the promotion of the respondent no. 6 to the post of Superintendent vide the order dated 06.01.2020, after his promotion to the post of Accountant by order dated 02.12.2019, would also not call for any interference. 12. 6 to the post of Superintendent vide the order dated 06.01.2020, after his promotion to the post of Accountant by order dated 02.12.2019, would also not call for any interference. 12. On a query made by this Court with regard to the date on which approval of the Board was received for amendment to the Rules of 1995, Mr. Dhar, learned counsel has placed on record the minutes of the 103rd meeting of the Board of Directors of the Corporation, held on 27.08.2019 and has contended that the Board had vide Agenda Item No. 15 (IV) authorized the Managing Director to fill up the vacant posts from amongst the employees of the Corporation or by Direct Recruitment and also for amendment of the Service Rules of 1995, pertaining to the Ministerial staff of the Corporation. It is submitted by Mr. Dhar, learned counsel that in terms of the said liberty, the Managing Director had amended the Service Rules vide the said amendment Rules of 2019, which were so notified on 22.11.2019. Mr. Dhar, learned counsel submits that the Selection Committee for promotion to the post of Senior Assistant and Accountant had met on 25.11.2019 i.e., after the amendment Rules had come into effect and the selection process was so carried out by also reckoning the amendments now effected in the provisions of the Rules of 1995, by the said amendment Rules of 2019. 13. Mr. Dhar, learned counsel has placed on record, the minutes of the Selection Committee meeting held on 25.11.2019 and has submitted that the selection in respect of respondent nos. 4 & 5 to the post of Senior Assistant and the selection in respect of respondent nos. 6 to the post of Accountant was so made strictly, in terms of the provisions of the Rules of 1995 (as amended in 2019) holding the field and accordingly, he submits that the said promotions would not call for any interference. 14. With regard to the promotion of the respondent no. 6 to the post of Superintendent and the resultant vacancy being so filled up by promoting the respondent no. 7 to the post of Senior Assistant, Mr. 14. With regard to the promotion of the respondent no. 6 to the post of Superintendent and the resultant vacancy being so filled up by promoting the respondent no. 7 to the post of Senior Assistant, Mr. Dhar has placed on record, the minutes of the Selection Committee meeting held on 03.01.2020, and has contended that the same would go to reveal that there was a necessity for filling up of the post of Superintendent, which had become vacant on the promotion of the incumbent therein, to the next higher post of District Manager Accounts. Accordingly, it is the submission of Mr. Dhar, learned counsel that the selection and appointment of the respondent no. 6 and respondent no. 7 to the post of Superintendent and Senior Assistant respectively, would not call for an interference by this Court. In the above premises, Mr. Dhar, learned counsel has further submitted that the contentions raised by the petitioner in the present proceeding would not mandate an acceptance and accordingly, prays that the writ petition be dismissed in limine. 15. Ms. N.S. Thakuria, learned counsel for the respondent nos. 4, 5 & 6 has adopted the arguments advanced by Mr. Dhar, learned counsel appearing for the State respondents. 16. Ms. N.S. Thakuria, learned counsel has submitted that in pursuance to the orders of promotions so issued in their respective cases, the respondent nos. 4, 5, 6 & 7 had assumed the charges of their promotional post and are continuing therein till date. Accordingly, she submits that such promotions would not call for an interference on a challenge presented by the petitioner, whose service career is tainted on account of proved allegations of misappropriation of money of the Corporation. 17. Ms. N.S. Thakuria, learned counsel has placed reliance on a decision of the Division Bench of this Court in the case of Dr. Bhusan Chandra Roy Medhi vs. Hemanta Kumar Mahanta, 2003 (2) GLT 584, to contend that the selection committee was well within its right to recommend an eligible person for promotion on the basis of merit and seniority. Ms. N.S. Thakuria, learned counsel has placed reliance on a decision of the Division Bench of this Court in the case of Dr. Bhusan Chandra Roy Medhi vs. Hemanta Kumar Mahanta, 2003 (2) GLT 584, to contend that the selection committee was well within its right to recommend an eligible person for promotion on the basis of merit and seniority. The promotion of the respondents No. 4, 5, 6 & 7 to the post of Senior Assistant/Accountant and Superintendent, being so effected upon selection so made by the Departmental Promotion Committee upon accessing their merit, it was submitted that the petitioner cannot claim that he should be promoted to the said post, solely basing on his seniority by ignoring his merit as well as his service records. 18. I have heard the learned counsels appearing for the parties and also perused the materials available on record. 19. It is not disputed that the petitioner was subjected to a departmental proceeding basing on an allegation of misappropriation of an amount of Rs. 56,924.14/- (Rupees Fifty Six thousand Nine Hundred Twenty Four and Fourteen Paisa only). On conclusion of a departmental proceeding so instituted against the petitioner, he was imposed with the penalty of withholding of 03 service increments with cumulative effect with a further direction for recovery of the defalcated amount along with simple interest @ 5% per annum from the date of his suspension till final recovery is made. 20. Mr. Chamuah, learned counsel for the petitioner has submitted that the currency of the said penalty along with the recovery thereof has since lost its force long back in the year 2003 and/or at best in the year 2004. It is submitted by the learned counsel for the petitioner that on conclusion of the currency of the penalty of withholding of 03 service increments with cumulative effect and also the recovery so directed, an employee is entitled to have his/her case considered for promotion. The minutes of the Selection Committee would go to reveal that the case of the petitioner herein was not considered by the Selection Committee for the promotions under challenge in the present proceedings. Insofar as, the promotions to the post of Senior Assistant and Accountant so effected vide the order dated 02.12.2019 is so concerned, such promotion was so effected basing on the recommendations made by the Selection Committee, in its meeting held on 25.11.2019. 21. Insofar as, the promotions to the post of Senior Assistant and Accountant so effected vide the order dated 02.12.2019 is so concerned, such promotion was so effected basing on the recommendations made by the Selection Committee, in its meeting held on 25.11.2019. 21. A perusal of the copy of the minutes of the said Selection Committee meeting dated 25.11.2019, furnished by Mr. R. Dhar, learned State counsel would go to reveal that for the purpose of promotion to the cadre of Senior Assistant while the cases of respondent nos. 4 & 5 were so considered, there is no reflection that the case of the petitioner was also so considered although he was in the zone of consideration. Likewise, a perusal of the said minutes with regard to the consideration made by the Selection Committee for promotion to the cadre of Accountant is so concerned; it is revealed that the case of the petitioner herein was again not so considered. Accordingly, it is to be concluded that the selection committee had not considered the case of the petitioner for either promotion as Senior Assistant and/or Accountant in its meeting held on 25.11.2019. 22. It is a settled position of law that due and fair consideration for promotion of an employee is a fundamental right. Accordingly, the non-consideration of the case of the petitioner by the Selection Committee, in its meeting held on 25.11.2019 either for promotion as Senior Assistant and/or Accountant, the fundamental right vested in the petitioner for having his case also being extended with fair and due consideration for promotion, came to be violated. Although the minutes of the selection committee meeting dated 25.11.2019, does not reflect as to why the case of the petitioner was not so considered, the reason for such non consideration of the case of the petitioner has been highlighted in the affidavit filed by the Managing Director of the respondent no. 2 Corporation. In the affidavit, it has been stated that the petitioner on being imposed with the penalty of withholding of 03 service increments with cumulative effect, the seniority of the petitioner also stood depressed by three years and accordingly, it was projected that the petitioner was rendered junior to the respondent nos. 4, 5, 6 & 7. 23. 2 Corporation. In the affidavit, it has been stated that the petitioner on being imposed with the penalty of withholding of 03 service increments with cumulative effect, the seniority of the petitioner also stood depressed by three years and accordingly, it was projected that the petitioner was rendered junior to the respondent nos. 4, 5, 6 & 7. 23. Before proceeding to consider such stand taken by the respondents, it is relevant to note that in the gradation list as published prior to the promotions effected to the cadres of Senior Assistant/Accountant vide the order dated 02.12.2019, the seniority position of the petitioner herein was so assigned above the respondents no. 4, 5, 6 & 7 herein. The stand of the respondents that the seniority of the petitioner stood depressed, on account of the imposition of a penalty of withholding of 03 service increments with cumulative effect is clearly not sustainable and the Hon’ble Supreme Court in the case of Md. Habibul Haque (Supra), under similar circumstances had contended that the imposition of the penalty of withholding of 03 service increments with cumulative effect, would not also have the effect of also reducing the seniority of such delinquent nor, would it be a punishment of reduction of seniority which the person entitled to hold in the order of seniority. 24. In other words, the Hon’ble Supreme Court had stipulated that merely on account of imposition of a penalty of withholding of 03 service increments with cumulative effect would not translate to such delinquent also being reduced in his/her seniority position in the cadre/grade to the extent of number of stages by which the scale of pay was reduced and/or the number of increments so withheld. Accordingly, applying the conclusion of the Hon’ble Supreme Court, so arrived at in its decision in the case of Md. Habibul Haque (supra) to the facts of the present case, the reasons so assigned for denial to the petitioner for consideration of his case by the Selection Committee, in its meeting held on 25.11.2019 for promotion to the post of Senior Assistant/Accountant would not merit an acceptance. Further, it is to be noticed that the case of the petitioner was not considered by the Selection Committee in its meeting held on 25.11.2019, for promotion to the post of either Senior Assistant or Accountant. 25. Further, it is to be noticed that the case of the petitioner was not considered by the Selection Committee in its meeting held on 25.11.2019, for promotion to the post of either Senior Assistant or Accountant. 25. Accordingly, in view of the above conclusions, it is held that the petitioner was illegally denied a due and fair consideration of his promotion by the Selection Committee in its meeting held on 25.11.2019, to the cadres of Senior Assistant as well as Accountant and the same has to be concluded to have violated his fundamental right. 26. Having concluded as above, with regard to the considerations extended by the Selection Committee and having found that the petitioner was illegally denied a consideration of his case, for promotion to the posts involved by the Selection Committee in its meeting held on 25.11.2019, this Court would now consider as to whether the promotion of the respondent no. 6 to the post of Accountant was in terms of the provisions holding the field. 27. Mr. Dhar, learned counsel has submitted that the promotion to the post of Accountant so effected in respect of the respondent no. 6 vide the order dated 02.12.2019, in pursuance to the recommendations made in this connection by the Selection Committee, in its meeting held on 25.11.2019, which was so done by reckoning the amended provisions of Rule 5(c) of the Rules of 1995, coming into force in terms of the Amendment Rules of 2019, insofar as, it concerns the post of Accountant. 28. At this stage, without going into the validity of the Amendment Rules of 2019, it is to be noted that in terms of the provisions of the Rule 5(c) of the Rules of 1995, coming into existence in terms of the provisions of the Amendment Rules of 2019, insofar as, it concerns recruitment to the post of Accountant, it is found that the same while making a Junior Assistant of the Corporation, eligible for promotion to the post of Accountant, in the event he has a Bachelors’ degree in Arts/Science/Commerce from a University recognized by the Government, the said amended provisions also mandates that a candidate for the post of Accountant must have working experience in Corporation Accounts as well as possess computer skills for handling data and text on computers in addition to having rendered 15 years of continuous service in the office. 29. 29. A perusal of the minutes of the selection committee meeting held on 25.11.2019, would go to reveal that the selection committee had not considered the case of the respondent no. 6 herein by applying the eligibility criteria’s as spelt out in the provisions of Rule 5(c) as amended by the Amendment Rules of 2019. It is not revealed from the records that the selection committee had undertaken an exercise to examine as to whether the respondent no. 6 had the working experience in the Corporation Accounts as well as to have possessed computer skill to handle data and text on computers. Accordingly, it has to be held that the consideration so extended in the case of the respondent no. 6 for promotion to the post of Accountant by the Selection Committee, in its meeting held on 25.11.2019 was so done without examining the eligibility requirements as spelt out in the provisions of the Rules of 1995 (as amended in 2019) for recruitment to the post of Accountant. Accordingly, in addition to the fact that the respondent no. 6 was so recommended for promotion to the post of Accountant, ignoring the case of the petitioner, the said recommendation of the selection committee in respect of the respondent no. 6 for promotion to the post of Accountant would also be liable to be interfered with, on the ground that such consideration in his case was so made in violation of the stipulation with regard to the eligibility as spelt out in the Rules of 1995 (as amended in 2019) pertaining to the post of Accountant. 30. Having concluded that the selection committee, in its meeting held on 25.11.2019, insofar as, the case of the respondent no. 6 for promotion to the post of Accountant vide the order dated 02.12.2019 is concerned, the same being so done in violation of the provisions in the Rules of 1995 (as amended in 2019), the same would call for an interference. 31. Having reached the above conclusions, with regard to the manner in which the selection and appointment in the post of Senior Assistant/Accountant was so made vide the order dated 02.12.2019, in pursuance to the recommendation of the Selection Committee, in its meeting held on 25.11.2019, this Court would now consider the promotion as effected in respect of the respondent no. Having reached the above conclusions, with regard to the manner in which the selection and appointment in the post of Senior Assistant/Accountant was so made vide the order dated 02.12.2019, in pursuance to the recommendation of the Selection Committee, in its meeting held on 25.11.2019, this Court would now consider the promotion as effected in respect of the respondent no. 6 & 7 to the post of Superintendent and Senior Assistant, vide the order dated 06.01.2020, in pursuance to the recommendation made by the Selection Committee, in its meeting held on 03.01.2020. 32. A perusal of the minutes of the meeting of the Selection Committee, in its meeting held on 03.01.2020 would go to show that the amended provisions of the Rules of 1995 coming into effect in terms of the Amendment Rules thereof, of 2019 were reckoned. In terms of the Rules of 1995 (as amended in 2019), pertaining to recruitment to the post of Superintendent is concerned, it is provided that the said post shall be so filled up by selection on the basis of suitability from amongst the Junior Assistants of the Head Office, who possesses a Bachelors’ degree from a University recognized by the Government, in the event of sufficient number of qualified and suitable person not being available from Clause-a at the Head Office. 33. It is to be noted that the provisions of Rule 5(a), as it originally stood, pertaining to the recruitment to the post of Superintendent in the provisions of the said Rules of 1995, before being substituted by the Amendment Rules of 2019, being relevant is extracted herein below: “5. Recruitment: (a) Superintendent: Appointment to the post of Superintendent may be made by the Appointing Authority by promotion on the basis of seniority cum merit from amongst Sr. Assistant/Accountant of the Office, who have rendered not less than 3 years of service as Senior Assistant/Accountant on the first day of the year in which the selection for promotion is made.” The provisions of Rule 5 upon amendment by the provisions of the Amendment Rules of 2019, also being relevant is extracted herein below: Amendment of Rule 5 (Ministerial) 2. In the principal Rules, in rule 5 (i) for existing sub rule (a), the following shall be substituted, namely: (b) Provided further that in event of sufficient member of qualified or suitable person not being available from clause (a) at head office, the appointment to the post of Superintendent may be made by selection on the basis of suitability from amongst the Jr. Assistant of the head office who possess a Bachelor’s Degree from a university recognized by the government. Moreover, a candidate for the post of Superintendent must possess computer skills for handling data and text on computer and have rendered not less than 10 years of continuous service in the office first day of the year on which the selection is made Provided that the number of vacation to be filled up in any year according to the sub-rule (a) shall not exceed 10% of the vacancies. 34. A mere reading of the provisions of the amended Rules of 2019 in relation to Rule 5(1) would go to show that original sub Rule (a) of Rule 5 was substituted and it was provided further that in the event of sufficient number of qualified or suitable person not being available from Clause (a) at the Head Office, the appointment to the post of Superintendent may be made by selection on the basis of suitability from amongst the Junior Assistant of the Head Office, possessing Bachelors’ degree from a University recognized by the Government. 35. In the event the provision of Rule 5(a), as it originally stood, was substituted, the original provisions of Rule 5(a) insofar as, it prescribes the manner of recruitment to the post of Superintendent cannot be held to be subsisting and accordingly, the provision made therein for recruitment from the post of Senior Assistant/Accountant would also not be existing. Accordingly, the promotion so effected in respect of the respondent no. 6 herein has to be held to be in clear violation of the provisions of the Rules of 1995, as it stood pursuant to its amendment in the year 2019. Accordingly, the promotion so effected in respect of the respondent no. 6 herein has to be held to be in clear violation of the provisions of the Rules of 1995, as it stood pursuant to its amendment in the year 2019. Accordingly, no further discussion would be called for with regard to the recommendation made by the Selection Committee in this connection, it its meeting held on 03.01.2020, inasmuch as, the very provision for making recruitment to the post of Superintendent from the post of Senior Assistant/Accountant, as it originally stood in the provisions of the Rules of 1995, ceased to be in force, pursuant to its amendment in the year 2019. Accordingly, the promotion as effected in place of the respondent no. 6 to the post of Superintendent would call for an interference. 36. The promotion as effected in respect of the respondent no. 7 being against the resultant vacancy arising on account of the promotion of the respondent no. 6, herein, to the post of Superintendent and such promotion of the respondent no. 6 to the post of Superintendent having been held to be not in terms of the Rules holding the field and the same calling for an interference, the promotion so effected in the case of the respondent no. 6, in addition to be so done without considering the case of the petitioner herein, who was admittedly senior to her in the cadre of Junior Assistant, would not be sustainable on account of the fact that the vacancy that have been so reckoned for the purpose of such promotion, is no longer available. Accordingly, the promotion of the respondent no. 7 would also call for an interference. 37. At this stage, it is to be noted that the criteria for promotion to the post of Senior Assistant/Accountant is “seniority-cum-merit.” The same is the criteria for promotion to the post of Superintendent. The Selection Committee, in its meetings held on 25.11.2019 and 03.01.2020, had proceeded to consider the case of the incumbents before it for promotion to the post of Senior Assistant/Accountant/Superintendent, by applying the criteria of Seniority-cum-merit. The principle of “Seniority-cum-merit” was defined by various decisions of the Hon’ble Supreme Court as well as of this Court. 38. The Hon’ble Supreme Court, in a recent decision, in the case of Ravi Kumar Dhansukhlal Maheta vs. High Court of Gujarat and Ors. The principle of “Seniority-cum-merit” was defined by various decisions of the Hon’ble Supreme Court as well as of this Court. 38. The Hon’ble Supreme Court, in a recent decision, in the case of Ravi Kumar Dhansukhlal Maheta vs. High Court of Gujarat and Ors. 2024 SCC Online SC 972, with regard to the meaning of the principle of “merit-cum-seniority” and “seniority-cum-merit” in service jurisdiction, had drawn the following conclusions after noticing the earlier judgment of the Court in the matter: “95. One must be mindful that the terms ‘Merit-cum-Seniority’ or ‘Seniority-cum-Merit’ are not statutorily defined by the legislature. 96. These principles are judicial connotations that have been evolved over a period of years through various decisions of this Court and the High Courts whilst dealing with matters of promotion pertaining to different statutes and service conditions. 97. This Court in B.V. Sivaiah (supra), Rajendra Kumar Srivastava (supra), Shriram Tomar (supra), Sujata Kohli (supra) and a catena of other decisions has held that the principles of ‘Merit-cum-Seniority’ and ‘Seniority-cum-Merit’ are conceptually different. Whilst explaining the difference between these two principles, this Court has only gone to the extent of laying down what these principles postulate for the purpose of promotion. In other words, this Court has only gone so far as to lay down what is permissible within the four corners of these principles and by no stretch of imagination has this Court in any manner held that such postulations are stricto-sensu required to be complied with. 98. The various decisions of this Court have only developed upon the principles of ‘Merit-cum-Seniority’ and ‘Seniority-cum-Merit’ by explaining the criterions that may be postulated within the framework of these principles for the purpose of promotion. The scope of the aforesaid principles is summarized below: (I) The principle of ‘Seniority-cum-Merit’ postulates that: (i) Minimum requirement of merit and suitability which is necessary for the higher post can be prescribed for the purpose of promotion. (ii) Comparative Assessment amongst the candidates is not required. (iii) Seniority of a candidate is not a determinative factor for promotion but has a predominant role. (iv) Upon fulfilling the minimum qualifications, promotions must be based on inter-se seniority. (II) The principle of ‘Merit-cum-Seniority’ postulates that: (i) Merit plays a predominant role in and seniority alone cannot be given primacy. (ii) Comparative Assessment of Merit is a crucial, though not a mandatory, factor. (iv) Upon fulfilling the minimum qualifications, promotions must be based on inter-se seniority. (II) The principle of ‘Merit-cum-Seniority’ postulates that: (i) Merit plays a predominant role in and seniority alone cannot be given primacy. (ii) Comparative Assessment of Merit is a crucial, though not a mandatory, factor. (iii) Only where merit is equal in all respects can inter-se seniority be considered. Meaning that a junior candidate can be promoted over the senior if the junior is more meritorious.” 39. Applying the conclusions as reached by the Hon’ble Supreme Court in the case of Ravikumar Dhansukhlal Maheta (supra) with regard to the principle of “seniority-cum-merit” to the facts of the present case, it is seen that the Selection Committee, in its meeting held on 25.11.2019, for the purpose of making recommendation for the post of Senior Assistant and Accountant had not applied the criteria of “seniority-cum-merit” in its proper perspective. It is not reflected from the minutes of the meeting of the Selection Committee with regard to the aspect as to the prescription of the minimum requirement of merit to be achieved by the persons in the zone of consideration for being held to be eligible for the promotions under consideration. 40. It being the settled position, that the criteria for promotion is the principle of “seniority-cum-merit”, there is no occasion for carrying out an inter-se comparison of the merit of the candidates in the feeder cadre. The seniority of the incumbent would be given priority subject to he achieving the minimum qualification so mandated for the purpose. 41. In the case on hand, the case of the petitioner was not so rejected on the ground that he did not possess the minimum qualification so mandated for the purpose of promotion to the cadre of Senior Assistant and/or Accountant. The only reason that was assigned by the respondent authorities in the affidavit for the purpose of denying to the petitioner consideration of his promotion that on account of imposition of penalty of withholding 3(three) increments, his seniority position in the cadre of Junior Assistant stood lowered, having already being held to not merit acceptance, the orders dated 02.12.2019, promoting the respondent nos. 4, 5 & 6 herein, to the post of Senior Assistant and Accountant, respectively, as well as the order dated 06.01.2020, promoting the respondent nos. 4, 5 & 6 herein, to the post of Senior Assistant and Accountant, respectively, as well as the order dated 06.01.2020, promoting the respondent nos. 6 & 7, to the post of Superintendent and Accountant, hereby stands set aside along with the recommendations so made by the Selection Committee in its meeting held on 25.11.2019 and 03.01.2020 in this connection. 42. At this stage, it is to be noted that the decision of this Court, relied upon by Ms. N.S. Thakuria, learned counsel, in the case of Dr. Bhusan Chandra Roy Medhi (supra) would not advance the case of the respondent nos. 4, 5, 6 & 7, inasmuch as, the criteria for promotion under consideration in the said decision was “merit-cum-seniority”, while in the present proceedings it is “seniority-cum-merit” and accordingly, the said decision is not further discussed in the present order. 43. Having interfered with the orders of promotion in respect of the of the respondent nos. 4, 5, 6 & 7; as well as the corresponding recommendations so made by the Selection Committee in the matter, this Court now directs the respondent authorities to convene a Selection Committee meeting for the purpose of considering the cases of the petitioner as well as the respondent nos. 4, 5, 6 & 7 along with the others who are in the zone of consideration for promotion to the post of Senior Assistant and Accountant. 44. It is further provided that in the event, the amendment Rules of 2019 had not been placed before the Board and received its approval, the selection as directed herein above, against the post of Senior Assistant and Accountant, shall be so made in terms of the Rules of 1995 as it originally stood. Further, in the event the Amendment Rules of 2019 having not received the approval of the Board of the Corporation, it is provided that in the event a necessity is felt also to fill up the post of Superintendent, the same shall so be so done under the provisions of the unamended Rules of 1995, after receiving due approval of the Board, towards relaxing the provisions of Rule 5(a) of the Rules of 1995 to the extent of the residency so mandated therein, in the feeder post for being eligible to be considered for promotion to the post of Superintendent. Further, such selection be also carried out considering the cases of all incumbents in the cadre of Senior Assistant/Accountant and in the event, in terms of the directions passed herein above, the petitioner is so promoted as Senior Assistant/Accountant, he would also be granted a due consideration for his promotion against the post of Superintendent. 45. The promotions now directed to be considered to the posts of Senior Assistant/ Accountant, be so considered and promotion orders issued within a period of 30(thirty) days from the date of receipt of a certified copy of this order. Thereafter, the promotion to the post of Superintendent be so considered, subject to receipt of approval from the Board. 46. With the above observations and directions, the writ petition stands disposed of.

Dilip Kumar Saikia S/o Late Randhar Saikia v. State of Assam