JUDGMENT :

1. Heard Mr. S. Sahu, the learned counsel appearing on behalf of the petitioner and Mr. B. Gogoi, the learned Standing counsel appearing on behalf of the Finance (Taxation) Department, Government of Assam. None has appeared on behalf of the respondent No.5.

2. It appears from the records that on 22.12.2021, the Lawazima Court has deemed service upon the respondent No.5 in terms with the provisions of Section 27 of General Clauses Act, 1897.

3. The dispute involved in the instant writ petition is that the petitioner has not been promoted to the post of Junior Assistant with retrospective effect from the date of promotion of respondent No.5, for which the petitioner has sought for a Mandamus directing the respondent authorities to immediately promote the petitioner to the post of Junior Assistant, with retrospective effect from the date of promotion of the respondent No.5, as well as for a writ of Certiorari for setting aside and quashing the promotion order dated 01.02.2018 passed by the respondent No.4 in favour of the respondent No.5.

4. For appreciating the dispute, it would be relevant to take note of the brief facts of the instant case. The petitioner herein has admittedly passed only High School Leaving Certificate Examination in the year 1989. Thereupon, the petitioner got appointed to one post of Chowkidar (Grade-IV) in the Office of the Superintendent of Taxes, Guwahati. His appointment was regularized vide an order dated 24.02.1995. It is the case of the petitioner that in terms with the Office Memorandum dated 06.04.1999, the Assam Ministerial District Establishment Service Rules, 1967 (for short the “Rules of 1967”) is to be followed and in terms with the provisions of Clause-(b) of Sub-Rule (6) of Rule 6 of the said Rules of 1967, 10% of the vacancies of the L.D. Assistant in the year is to be filled up by selection on the basis of seniority-cum-merit from amongst the Grade-IV staff of the establishment concerned, who have passed the HSLC or equivalent examination and have rendered at least 7 years of continuous service on the first day of the year in which the selection is made.

5. It is the case of the petitioner that in spite of the petitioner having completed the period of 7 years and having the qualification to that effect, the petitioner was not promoted to the post of Junior Assistant but the respondent No.5 was promoted to the said post vide an order dated 01.02.2018. It is the case of the petitioner that the respondent No.5 is junior to the petitioner by more than 3 years 8 months in the cadre of Grade-IV Chowkidar post. Under such circumstances, the petitioner has sought for reliefs as above mentioned.

6. For the purpose of deciding the instant dispute, it is relevant to take note of Rule 6(6) of the Rules of 1967 which admittedly applies to the department in question in view of the Office Memorandum dated 06.04.1999. Rule 6(6) is in relation to the post of Junior Assistant. The said Rule 6(6) being relevant is quoted hereinbelow :

“6.(6) [Junior Assistants – (a) By direct recruitment on the basis of a competitive examination [consisting of an Objective Type Written Test and Computer Proficiency Test (practical) as laid down in the Schedule-I of these rules to be conducted by the Deputy Commissioner at the beginning of each year, for any vacancy in the post of Junior Assistant, likely to occur in course of the year in their respective establishments unless otherwise directed by the Government in this behalf]

Note:- At the beginning of each calendar year the Deputy Commissioners shall call for applications to fill up temporary vacancies of any kind which are likely to occur in course of the year in their respective establishments. On receipt of applications by a specified date, [“the Objective Type Written Test” and the Computer Proficiency Test (practical)”] shall be held and a list of all candidates suitable for appointment to the posts of [Junior Assistants] shall be prepared in order of merit by th