JUDGMENT : DEVASHIS BARUAH, J. Heard Mr. S. Das, the learned counsel appearing on behalf of the petitioner. Mr. H. K. Das, the learned Standing Counsel appears on behalf of the Gauhati High Court; Mr. R. Gohain, the learned counsel appears on behalf of the respondent Nos.5 & 6 and Mr. G. Bokalial, the learned counsel appears on behalf of the Judicial Department of the Government of Assam. 2. The petitioner herein has assailed the promotion given to the private respondents by the Chief Judicial Magistrate, Hojai vide the order dated 24.01.2024, enclosed as Annexure-13 (Colly) to the instant writ petition. FACTUAL MATRIX 3. It is the case of the petitioner that the husband of the petitioner one Dipananda Bora (since deceased) was employed in the establishment of the Chief Judicial Magistrate, Nagaon as a Copyist. The husband of the petitioner died in harness leaving behind the petitioner. The petitioner thereupon was appointed on compassionate grounds as a Grade-III Copyist vide an order dated 02.05.2013. Thereupon, the petitioner joined the establishment on 02.05.2013 and was subsequently confirmed to her post on 13.06.2016. 4. On 07.12.2023, the Selection Board for recruitment in the Chief Judicial Magistrate Establishment, Hojai took steps for filling up two vacant posts of Upper Division Assistant by way of promotion. The resolution dated 07.12.2023 has been enclosed at Annexure-7 to the writ petition. A reading of the said resolution reveals that the Selection Board decided to adopt the criteria of seniority-cum-merit which was the mandate of the Assam Chief Judicial Magistrate Establishment (Ministerial) Service Rules, 1987 (for short, ‘the Rules of 1987’). It was further resolved that the existing staffs including the Computer Typists of the establishment are eligible for promotion who have rendered not less than five years of service as LDA/Copyist/Computer Typist. The Head Assistant was also asked to prepare a list of eligible candidates for the purpose of promotion to the post of Upper Division Assistant, taking into account two vacant posts (one actual and one anticipated on account of the superannuation of one Sri Tarun Kalita on 31.12.2023) and to place the same before the Board on the next Selection Board Meeting. 5. The record further reveals that on 19.01.2024, the Selection Board again held a meeting and adopted certain resolutions. 5. The record further reveals that on 19.01.2024, the Selection Board again held a meeting and adopted certain resolutions. The Resolution No.1 related to formulation of the modalities to be followed while conducting the interview for the post of Upper Division Assistant and the Interview Board was constituted consisting of three members which included the Chief Judicial Magistrate, the Sub-Divisional Judicial Magistrate and the Judicial Magistrate, First Class. The Selection Board further laid down the parameters for evaluation of the candidates for the post of Upper Division Assistant by the Interview Board. A further perusal of the said Resolution No.1 reveals that the candidates for the post of Upper Division Assistant were to be evaluated and awarded marks on the basis of the following parameters. The parameters set out being relevant are reproduced herein under:- Sl. No. Criteria Marks 1. Marks on ACR/Service 10 2. Marks on Personality 10 3. Marks on General Aptitude 10 4. Qualification (Minimum HS passed). Higher qualification carries weightage in marks 10 5. Reading and understanding skill 10 TOTAL 50 6. It is also pertinent to observe that in the said Resolution No.1, it was mentioned that the qualifying marks for promotion to the vacant post of Upper Division Assistant would be 30 marks out of the 50 marks. The resolution is silent to the effect whether the 30 marks were earmarked for assessing minimum necessary merit for efficacy of administration. Before proceeding further, this Court finds it interesting to take note of one of the criterion so adopted at Sl. No. 4 of the above quoted Table, i.e. Qualification (Minimum HS passed) and Higher qualification would carry weightage in marks and 10 marks have been allocated on the basis thereof. 7. The records which have been produced before this Court do not however show as to how the Selection Board would evaluate the parameter pertaining to qualification as to whether it would be a subjective satisfaction of the Members of the Selection Board or it would be done on the basis of objective satisfaction. This aspect would assume importance as would be seen in the later part of the present judgment. 8. Now continuing further, it is also seen that the Selection Board evaluated all the six candidates. This aspect would assume importance as would be seen in the later part of the present judgment. 8. Now continuing further, it is also seen that the Selection Board evaluated all the six candidates. Amongst the six candidates, four were held to be qualified while two including the petitioner were disqualified on the ground that they failed to attain 30 marks. It may not be out of place to mention that the petitioner missed out by a whisker in as much as the petitioner was evaluated having obtained 29.33 marks (taking into account the average of the three Interviewers assessment) thereby short of 0.67 to be otherwise qualified. It is further seen that pursuant thereto, the respondent Nos.5 & 6 were duly appointed to the post of the Upper Division Assistant vide the order dated 24.01.2024 enclosed as Annexure-13 (Colly). It is under such circumstances, the petitioner being aggrieved, had approached this Court by filing the present writ petition. 9. The record reveals that this Court vide the order dated 14.06.2024 while issuing notice, observed that appointment of the respondent Nos.5 & 6 shall be subject to the outcome of the writ petition. STAND OF THE OFFICIAL RESPONDENTS 10. The respondent Nos.2, 3 & 4 have filed a joint affidavit-in- opposition. Apart from stating the facts which have already been mentioned and narrated herein above, it was averred that the petitioner participated in the selection process but could not get promotion to the post of Upper Division Assistant because she failed to secure the minimum qualifying 30 marks out of 50 marks in terms with the criterion seniority-cum-merit. It was stated that the Selection Board Members gave their individual marks on the parameters fixed by the Board for ascertaining minimum merit, and after assessing that four out of six candidates secured minimum 30 marks, promoted two of the candidates on the basis of inter-se seniority which is in terms with the principle of seniority-cum-merit. It was further mentioned that the petitioner having participated in the selection process without raising any objection pertaining to not following the seniority-cum-merit criterion cannot raise such objection. It was further mentioned that the petitioner having participated in the selection process without raising any objection pertaining to not following the seniority-cum-merit criterion cannot raise such objection. It was also mentioned that the select list was published in the month of January, 2024 and the petitioner approached this Court after six months in the month of June, 2024 which fortifies the fact that her challenge was an afterthought and she just wanted to take a chance and make an attempt to jeopardize a validly concluded selection process. In addition to the above, it was contended that the employer enjoys free play in formulating the procedure to ascertain the minimum merit of the candidates. Further to that, it was stated that the Rules of 1987 provide criterion for promotion as seniority-cum-merit which postulates the promotion will be based on seniority upon assessment of minimum merit. It was averred that there was nothing wrong in fixing the minimum 30 marks as qualifying benchmark for promotion as Upper Division Assistant. In the said affidavit-in-opposition, the respondents have enclosed the evaluation sheets of the Interviewers as Annexure-R5. It is seen from Annexure-R5 that one of the interviewers gave the petitioner 34 marks out of 50 marks; the second interviewer gave the petitioner 30 marks out of 50 marks. However, the third interviewer gave the petitioner 24 marks out of 50 marks. Resultantly the average of the petitioner being 29.33, the petitioner was held not qualified by a whisker of 0.67 marks. 11. At this juncture, this Court finds it appropriate to analyse Annexure-R-5 which is the assessment of the merit by the three Interviewers. Each of the interviewers gave different marks in so far as the petitioner is concerned in respect to the parameter of qualification. One interviewer gave 6 marks, the second gave 7 marks and the third gave 8 marks. 12. To the said affidavit-in-opposition, an affidavit-in-reply was filed by the petitioner wherein the petitioner not only reiterated and reaffirmed the statements and contentions made in the writ petition, but also refuted the statements and allegations made in the affidavit-in-opposition. It was the specific stand of the petitioner in the said affidavit-in-reply that the fixing of 30 marks as the minimum marks out of 50 marks could not have been said to be reasonable and in fact shows an arbitrary exercise of power. It was the specific stand of the petitioner in the said affidavit-in-reply that the fixing of 30 marks as the minimum marks out of 50 marks could not have been said to be reasonable and in fact shows an arbitrary exercise of power. It was stated that the parameter of qualification could not have been a part of the evaluation taking into account that it would amount to inserting a condition from what had been mandated in the Rules of 1987. It is the specific case of the petitioner that Rule 6 (3) of the Rules of 1987 do not mandate any educational qualification, and as such, including a parameter for evaluation of the minimum necessary merit is contrary to the principle of seniority-cum-merit. SUBMISSIONS ON BEHALF OF THE PARTIES 13. Mr. S. Das, the learned counsel appearing on behalf of the petitioner submitted that a perusal of Annexure-R2 would show that the length of service of the petitioner as on 01.01.2023 was 9 years, 7 months, 30 days whereas the respondent Nos.5 & 6 were much junior to the petitioner. The learned counsel for the petitioner submitted that though the Selection Board, as per the settled principles of law, is at liberty to formulate the procedure as well as the parameters as to how the evaluation is to be carried out for assessing the minimum necessary merit when the criteria for promotion is seniority-cum-merit, but the qualification could not have been brought within the ambit of the evaluation, and thereby giving higher marks with higher educational qualification, would amount to tinkering with the Rules of 1987 which do not mandate any education qualification. The learned counsel for the petitioner further submitted that even assuming for argument's sake, but not admitting, educational qualification could have been taken into consideration, but the same has to be done on the basis of an objective satisfaction and not at the subjective satisfaction of each of the interviewers. The learned counsel for the petitioner submitted that if the parameter relating to educational qualification is based upon subjective satisfaction, it would lead to arbitrariness in the actions of the Respondent Authorities. Referring to the Evaluation Chart as has been enclosed to the affidavit-in-opposition filed by the respondent Nos.2, 3 & 4 as Annexure-R5, the learned counsel submitted that each of the interviewers gave different marks to the petitioner on the basis of educational qualification. 14. Referring to the Evaluation Chart as has been enclosed to the affidavit-in-opposition filed by the respondent Nos.2, 3 & 4 as Annexure-R5, the learned counsel submitted that each of the interviewers gave different marks to the petitioner on the basis of educational qualification. 14. Per contra, Mr. H. K. Das, the learned Standing Counsel appearing on behalf of the Gauhati High Court submitted that the settled principles of law stipulates that when seniority-cum-merit is the criteria, the Selection Board is at liberty to formulate the procedure for assessing the minimum qualifying merit. He submitted that in the instant case, 30 marks have been earmarked as the minimum qualifying merit out of 50 marks. The learned Standing Counsel submitted that in the instant case, it would be seen that the evaluation has been done by taking into account the average of all the marks given by the interviewers thereby rooting out the scope of arbitrariness or bias. He therefore submitted that this is not a case wherein any interference is required to be made. In that regard, the learned Standing Counsel for the respondent Gauhati High Court has referred to a judgment of the Supreme Court in the case of Rajendra Kumar Srivastava & Another vs. Samyut Kshetriya Gramin Bank & Others , reported in (2010) 1 SCC 335 and placed reliance on paragraph Nos.13 & 14 to buttress his point that if the criteria adopted for assessment of the minimum necessary merit is bonafide and not unreasonable, it is not open to challenge as being opposed to the principle of seniority-cum-merit. The learned Standing Counsel further submitted that in the instant case, as would be seen from the materials on record that out of the six candidates, four have secured more than 30 marks; and thereupon, on the basis of seniority, the promotion was made to the post of Upper Division Assistant amongst the persons who have qualified and obtained 30 marks. 15. Mr. R. Gohain, the learned counsel who appears on behalf of the respondent Nos.5 & 6 submitted that the respondent Nos.5 & 6 would adopt the pleadings of the respondent Nos.2, 3 & 4 and further would also adopt the submission made by Mr. H. K. Das, the learned council appearing on behalf of the respondent Nos.2, 3 & 4. ANALYSIS AND DETERMINATION 16. H. K. Das, the learned council appearing on behalf of the respondent Nos.2, 3 & 4. ANALYSIS AND DETERMINATION 16. At the outset, it is relevant to take note of Rule 6(3) of the Rules of 1987, which deals with filling up the post of Upper Division Assistant. Rule 6(3) of the Rules of 1987 being relevant is reproduced herein under: “ 6(3) Upper Division Assistant - By promotion on the basis of seniority-cum-merit from amongst Lower Division Assistants of the Chief Judicial Magistrates Establishment (Ministerial) concerned who have rendered not less than 5 years of service as Lower Division Assistant in the Chief Judicial Magistrate Establishment (Ministerial) concerned on the 1st day of the year in which the promotion is made. NOTE – For the purpose of promotion, the Chief Judicial Magistrate shall prepare a select list at the beginning of each year taking into account the number of vacancies likely to occur during the year in question. The Chief Judicial Magistrate shall associate the Additional Chief Judicial Magistrate and the Sub-Divisional Judicial Magistrate in the Selection. The criterion for selection shall be on the basis of seniority-cum-merit. The select list shall remain valid for one year. It shall be reviewed after one year and all those eligible shall again be considered.” 17. From a perusal of the above quoted Sub-Rule, it would appear that the post of Upper Division Assistant is to be filled up on the basis of promotion from amongst the Lower Division Assistant of the Chief Judicial Magistrate Establishment (Ministerial) concerned by adopting the criteria of seniority-cum-merit and amongst the persons who have not rendered less than five years of service as a Lower Division Assistant in the Chief Judicial Magistrate Establishment concerned on the first day of the year in which the promotion is made. Therefore, the criteria on the basis of which the promotion is required to be made is seniority-cum-merit. 18. In the case of B.V. Sivaiah vs. K. Addanki Babu , reported in (1998) 6 SCC 720 , the Supreme Court while explaining the difference between the principles of merit-cum-seniority visa-a-vis seniority-cum-merit held that when it comes to the principle of seniority-cum-merit, the promotion is to be made on the basis of seniority alone subject to having the minimum requisite merit and suitability of the candidate amongst the eligible candidates. It was categorically observed that the criterion of seniority-cum-merit postulates that given the minimum necessary merit requisite for efficiency of the administration, the senior, even though less meritorious, shall have priority, and a comparative assessment of merit is not required to be made. It was further observed that for assessing the minimum necessary merit, the Competent Authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance, on the basis of service records and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit. 19. The Supreme Court further emphasized in the case of B.V. Sivaiah (supra) that while taking into consideration the principle of merit-cum-seniority, the requirement is of making a comparative assessment of merit. 20. The propositions laid down in the case of B.V. Sivaiah (supra) therefore makes it abundantly clear that where the criteria of promotion is the principle of seniority-cum-merit, marks can only be prescribed for assessment of minimum qualifying requirement, and as such, when the promotion is given to eligible senior most candidates on the basis of their individual marks, such promotion would be contrary to the principle of seniority-cum-merit. 21. It is apposite to observe at this stage that for the post of Upper Division Assistant, no qualification had stipulated in the Rules of 1987. 22. This Court further finds it pertinent to observe another judgment of the Supreme Court in the case of K. Samantaray vs. National Insurance Co. Limited , reported in (2004) 9 SCC 286 . This judgment is relevant to understand another principle of promotion known as “hybrid mode of promotion”. The Supreme Court observed in the said judgment that “hybrid mode of promotion” is distinct from the principles of ‘seniority-cum-merit’ and ‘merit-cum-seniority’. It was observed that in a particular case when the “hybrid mode of promotion” is followed, the requirement is that the seniority is to be duly respected and the merit appropriately recognized. The observation of the Supreme Court in the case of K. Samantaray (supra) wherein the third mode, i.e. the “hybrid mode of promotion” was explained is relevant to understand what essentially the Respondent Authorities did in the present case. The observation of the Supreme Court in the case of K. Samantaray (supra) wherein the third mode, i.e. the “hybrid mode of promotion” was explained is relevant to understand what essentially the Respondent Authorities did in the present case. Paragraph Nos.10 & 11 of the said judgment is relevant for which the same are reproduced herein below:- “10. In Syndicate Bank case observations in para 14 throw considerable light on the controversy. The third mode (apart from seniority-cum-merit and merit-cum-seniority modes) has been recognized. It has been described as a ""hybrid mode of promotion"". In other words, there is a third category of cases where seniority is duly respected and merit is appropriately recognized. 11. While laying down the promotion policy or rule, it is always open to the employer to specify area and parameter of weightage to be given in respect of merit and seniority separately so long as policy is not colourable exercise of power, or has the effect of violating of any statutorily scope of interference and other relatable. The decision in B.V. Sivaiah case is clearly distinguishable on facts and in law. That was a case where statutory rules governed the field. This Court, inter alia, held that fixing terms which are at variance with the statutory rules is impermissible. In the case at hand, prior to the formulation of policy in February, 1990, there were no codified prescriptions. It was the stand of the respondent employer that prior to the formulation of the policy, certain guidelines existed and the objectives of the policy were to rationalize and codify the existing guidelines relating to promotions within officers cadre. There is no statutory rule operating. It is for the employer to stipulate the criteria for promotion, the same pertaining really to the area of policy making. It was, therefore, permissible for the respondent to have their own criteria for adjudging claims on the principle of seniority-cum-merit giving primacy to merit as well, depending upon the class, category and nature of posts in the hierarchy of administration and the requirements of efficiency for such posts.” 23. It was, therefore, permissible for the respondent to have their own criteria for adjudging claims on the principle of seniority-cum-merit giving primacy to merit as well, depending upon the class, category and nature of posts in the hierarchy of administration and the requirements of efficiency for such posts.” 23. From the above quoted paragraphs, it would be seen that in this “hybrid mode of promotion”, it is open to the employer to specify the area and parameters of weightage to be given in respect of merit and seniority separately so long as the policy is not a colourable exercise of power nor has the effect of violating any statutorily scope of interference and other relatable. In this “hybrid mode of promotion”, it was permissible for the employer to have their own criteria for adjudging the claims on the basis of seniority- cum-merit giving primacy to merit as well, depending upon the class, category and nature of the post in the hierarchy of the administration and the requirements for efficiency of such posts. 24. At this stage, this Court finds it pertinent to observe that there is a distinction between seniority-cum-merit with that of the “hybrid mode of promotion” in as much as while evaluation in terms with the principle of seniority-cum-merit simpliciter, the requirement is only to find out the minimum necessary merit for the efficiency of administration and upon having the minimum necessary merit, seniority shall have primacy. On the other hand, in the “hybrid mode of promotion” though seniority would be respected, the employer has the liberty to specify the area and parameters of weightage to be given in respect of merit depending on the class, category and nature of the post. 25. Reverting back to the facts of the present case, it would show from the Minutes of the Selection Board of recruitment held on 19.01.2024 that the Selection Board evolved the parameters for assessing the candidates for promotion to the vacant posts of Upper Division Assistant. The procedure formulated was that the candidates for the post of Upper Division Assistant would be required to obtain 30 marks out of 50 marks, and thereupon they would be assessed on the basis of seniority. The procedure formulated was that the candidates for the post of Upper Division Assistant would be required to obtain 30 marks out of 50 marks, and thereupon they would be assessed on the basis of seniority. There was no mention that the 30 marks would be for assessing the minimum necessary merit in the Resolution dated 19.01.2024 though it appears that the Respondent Nos.2, 3 & 4 have tried to improve their case in the present proceedings by stating that the 30 marks out of 50 marks, which would 60%, is the requirement for assessing the minimum necessary merit. 26. In the previous segments of the instant judgment, this Court has already quoted the Table wherein the parameters as to how the 50 marks would be evaluated have been mentioned. From the Table, it would show that 10 marks each have been earmarked in respect to the five parameters fixed for assessment. The parameters pertaining to appraisal of the ACR, marks on personality, marks on general aptitude as well as reading and understanding skills, in the opinion of this Court, can very well be parameters for assessment of the minimum necessary merit. However, the parameter fixed pertaining to qualification and higher the qualification, the more would be the marks, in the opinion of this Court cannot be said to be a parameter for assessment of the minimum necessary merit. The reasons being two fold. First, a perusal of Rule 6(3) of the Rules of 1987 do not mandate the qualification for being promoted to the post of Upper Division Assistant. Under such circumstances, it is clear that the Rule making Authority never conceived of that for the purpose of efficiently performing the duties in the post of Upper Division Assistant. Secondly, adding the parameter of qualification, the Respondent Authorities had inserted a qualifying criterion which is foreign to the Rule 6(3) of the Rules of 1987. 27. Additionally this Court further finds it relevant to opine that even assuming qualification could be made a parameter for evaluating the minimum necessary merit then also, the Selection Board could not have included the parameter of qualification without first fixing as to how the parameter pertaining to qualification would be assessed. More so, taking into consideration that the parameter of qualification for assessment of each candidate cannot be dynamic but based upon a constant factor. More so, taking into consideration that the parameter of qualification for assessment of each candidate cannot be dynamic but based upon a constant factor. It is the opinion of this Court that for assessing this parameter, the Respondent Selection Board ought to have fixed marks against each qualification prior to the assessment so that the Interviewers could have objectively evaluated the parameter of qualification. In the instant case, it would be seen from Annexure R-5 that each Interviewer gave separate marks in the case of the petitioner while evaluating the parameter of qualification. In other words, the Respondent Selection Board did not specify beforehand how the parameter of qualification would be assessed resultantly each Interviewer subjectively assessed the parameter of qualification. 28. From the above analysis, it would therefore be seen that the Respondent Selection Board while assessing the candidates did not evaluate the candidates as per the principle of seniority-cum-merit, but rather evaluated as per the “hybrid mode of promotion” thereby giving weightage to certain aspects on merits, such as qualification which was not permissible. The Respondent were required to assess as per the principle of seniority-cum-merit, i.e. evaluation of minimum necessary merit and then promote on the basis of seniority amongst the candidates having the minimum necessary merit. 29. In the backdrop of the above analysis, let this Court take into account the judgment of the Supreme Court in the case of Rajendra Kumar Srivastava (supra) as has been placed by the learned counsel appearing on behalf of the respondents and more particularly, laying emphasis at paragraph No.13 & 14. A perusal of the said judgment would show that if the criteria adopted for assessment of the minimum necessary merit is bonafide and reasonable, it is not open to challenge. But the question arises in the instant case whether the said principles would be applicable? The answer to the same would be in the negative as in the instant case, the Respondent Selection Board took steps to ascertain the merits by giving due weightage to various parameters of merit rather than evaluating the candidates on the basis of minimum necessary merit for efficiency in administration. Under such circumstances, the judgment of the Supreme Court in the case of Rajendra Kumar Srivastava (supra) would not help the case of the respondents. 30. Under such circumstances, the judgment of the Supreme Court in the case of Rajendra Kumar Srivastava (supra) would not help the case of the respondents. 30. Considering the above, this Court therefore, is of the opinion that the impugned selection proceedings requires to be set aside and quashed. 31. Accordingly, the selection made on 22.01.2024 thereby selecting the respondent Nos.5 & 6 to the post of Upper Division Assistant requires to be interfered with. 32. The writ petition accordingly stands disposed of with the following observations and directions:- (i) The Minutes of the meeting dated 22.01.2024 thereby holding that the respondent Nos.5 & 6 are required to be promoted to the post of Upper Division Assistant is set aside and quashed. (ii) The order dated 22.01.2024 issued by the Chief Judicial Magistrate, Hojai whereby the respondent Nos.5 & 6 were selected to the post of Upper Division Assistant in the establishment of the Chief Judicial Magistrate, Hojai is set aside and quashed. (iii) The order dated 24.01.2024 issued in favour of the respondent Nos.5 & 6 respectively thereby promoting them to the post of Upper Division Assistant (Annexure-13 Colly) to the writ petition stands set aside and quashed. (iv) The Respondent Authorities shall be at liberty to take such necessary steps for filing the post of Uppers Division Assistants as per the mandate opt law. 33. Before parting with the record, this Court finds it relevant to observe that this Court had set aside the selection of the Respondent Nos.5 & 6 on the ground that as the said selection process was vitiated by wrong application of the principle of promotion. It is the opinion of this Court that if the promotion of one candidate is permitted to subsist, it would result in the petitioner losing the seniority in the post of Upper Division Assistant over the Respondent Nos.5 & 6, if at a later stage the petitioner is selected by following the correct principles.