In a promotion process based on seniority-cum-merit, seniority should be the determining factor, and the procedure for preparing the Select List should be designed to give more weightage to seniority than merit.

( 1 ) THE petitioners claim to be working as operating Assistants in the Operation Power House (Mechanical) in the Kolaghat Thermal Power Station under the West Bengal Power Development Corporation Limited, hereinafter referred to as "the Corporation", and their services are said to be governed by the Employees' Service Regulations framed by the said Corporation.

( 2 ) IT appears that the Corporation framed the West Bengal Power Development Corporation Limited Employees' Promotion/recruitment Rules, 1990, here inafter referred to as the "1990 Rules", which came into operation on and from 21st August, 1990.

( 3 ) THE said Rules, inter alia, provide that 80% of vacancies in the post of senior Operating Assistant are to be filed up on seniority-cum-merit basis from amongst departmental candidates having passed LME/lee/b. Sc. examination with specific training/experience of not less than one year or more as may be fixed by the Corporation.

( 4 ) IT is the petitioner's grievance that, although, the basis of promotion is "selection cum merit", steps are being taken by the concerned authorities to fill up the vacancies in the post of Senior Operating Assistant treating the said post to be a selection post.

( 5 ) APPEARING in support of the writ petition, Mr. Murari Mohan Das urged that ignoring the criteria for grant of promotion on the basis of seniority cum merit, the respondent authorities without fixing the seniority amongst the Operating Assistants and without publishing the seniority list and fixing the number of vacancies, have fixed a date for holding a written test for selecting candidates for filling up the vacancies that have occurred. Mr. Das urged that the steps taken by the respondents were highly arbitrary and illegal and were liable to be quashed.

( 6 ) MR. Das urged that when the criteria for promotion is seniority cum merit, candidates should automatically be granted promotion unless it became necessary to test the merit of similarly-placed candidates for reducing the number of eligible candidates against the number of vacancies available.

( 7 ) IN support of his submissions Mr. Das firstly referred to a decision of the Delhi High Court in the case of Deep Chand Gupta v. The Food Corporation of India wherein while considering the quota rule for promotion, the learned single Judge observed that criteria for selection being seniority subject to fitness, it was improper for the Selection Committee to adopt merit as the criteria.

( 8 ) MR. Das also referred to a decision of the Kerala High Court in the case of V. N. Rajan v. Hindustan News Print Limited, reported in 1997 Lab. I. C. , page 2757, were the same question was under consideration and where it was held that when the eligibility criteria was based on seniority cum fitness, it was improper on the part of the authorities to treat the post as a selection post and to give preference to merit instead of seniority.

( 9 ) MR. Das submitted that in the circumstances the respondents should be restrained from conducting the written test or from granting promotion to the post of Senior Operating Assistant on the basis thereof. Mr. Das urged that the respondents should be directed to publish the gradation list of Operating Assistants and to grant promotion on the basis of such list and till such time as the gradation list was published not to give promotion in respect of the vacancies in the post of Senior Operating Assistant.

( 10 ) OPPOSING the writ application on behalf of the respondents, Mr. Moni Bhusan Sarkar firstly submitted that the draft gradation list of operating Assistants had been duly published on 2nd July, 1997, and objections had also been invited and that the objections which had been received till 31st October, 1997, were being processed.

( 11 ) MR. Sarkar urged that the list of candidates chosen for sitting in the written test had been prepared on the basis of seniority as per the draft gradation list and the criteria relating to