JUDGMENT :

Heard Mr. U.K. Nair, learned Sr. counsel assisted by Mr. M.P. Sarma, learned counsel for the writ petitioner. Also heard Mr. T.C. Chutia, learned Addl. Sr. Govt. Advocate, Assam appearing for the respondent Nos. 1 to 3 and Mr. S. Hoque, learned counsel appearing for the respondent No. 4.

2. The controversy involved in this writ petition pertains to the claim of inter-se seniority between the writ petitioner and the respondent No. 4 in the cadre of UDA. The facts of the case, in a nutshell, are that the petitioner herein was initially appointed as Lower Division Assistant (LDA) in the office of the Chief Inspector of Factories, Assam on 26-06-1986 and thereafter, she was promoted to the post of Upper Division Assistant (UDA) in the same establishment on 23-02-2007. The respondent No. 4 was appointed as LDA on 19-12-1989 and therefore, she was junior to the writ petitioner in service but she was promoted to the post of UDA on the same day as the writ petitioner i.e. on 23-02-2007. The promotion to the post of UDA was given to the writ petitioner and the respondent No. 4 on the basis of the resolution adopted by the Selection Committee in its meeting held on 21-02-2007 wherein, the committee had considered the eligible candidates for filling up 03 (three) vacant posts of UDA in the establishment of Chief Inspector of Factories, Assam. However, in the gradation list prepared by the department, the name of the respondent No. 4 featured above the writ petitioner. Aggrieved by such erroneous fixation of seniority, the petitioner has approached this court by filing the instant writ petition.

3. It is the pleaded case of the writ petitioner that the post of Assistant Superintendent in the establishment of Chief Inspector of Factories is required to be filled up by promoting eligible LDAs. When the post of Assistant Superintendent had fallen vacant, the petitioner had requested to the departmental authorities to consider her for promotion to the said post. However, she was informed by the authorities that since the respondent No. 4 was senior to her in the gradation list, she could not be considered for promotion to the post of Assistant Superintendent. By the interim order dated 29-03-2019 passed in this writ petition, this Court had restrained the respondents from proceeding further with the process of promotion to fill up the post of Assistant Superintendent.

4. By referring to the minutes of the Selection Committee dated 21-02-2007, Mr. Nair has submitted that although his client does not have any objection to the promotion given to respondent No. 4, yet, the said respondent, having been promoted against a vacancy reserved for Schedule Tribe (Plain) [ST(P)], the seniority of the respondent No. 4 could not have been determined on the basis of roster point as has been done on the present case. According to Mr. Nair, 10% reservation available for the ST(P) would also not be applicable in the present case, since the cadre strength of the UDA was only 07 (seven). He however, submits that even if the promotion given to the respondent No 4 is held to be valid, even then, law does not permit fixation of seniority on the basis of roster point. In support of above argument, Mr. Nair has placed reliance on a decision of the Supreme Court rendered in the case of Bimlesh Tanwar Vs. State of Haryana & Ors. reported in (2003) 5 SCC 604 as well as the decision of this Court rendered in the case of Deba Kumar Dutta & Ors. Vs. State of Assam & Ors. reported in 2011 (3) GLT 387 to contend that the writ petitioner being senior to the respondent No. 4 in service in the cadre of LDA and the sole criteria for promotion being seniority, the respondent No. 4 could not have been held to be senior to the writ petitioner in the cadre of UDA since the promotion process was one and the same and was meant for all the 03 (three) vacancies in the cadre of UDA.

5. Mr. T.C. Chutia, learned Addl. Sr. Govt. Advocate, Assam on the other hand, has argued that since