IMPORTANT POINT
The court established that the Selection Board and the Appointing Authority have discretion to consider the suitability of candidates for promotion, taking into account their service records and antecedents, and that the petitioner's conviction and subsequent release on probation affected his suitability for the higher post.

JUDGMENT :

In the present writ petition instituted under Article 226 of the Constitution of India, the petitioner has assailed an Order bearing no. 183 passed under Memo no. DJK.1-1/2021/1653-58 dated 29.112021 by the respondent no. 3 whereby the respondent no. 5 has been promoted to the post of Civil Sheristadar in the office of the Civil Judge, Kokrajhar with effect from 01.12.2021.

2. The relevant and necessary facts for the purpose of consideration of the challenge made herein can be exposited, briefly, as follows :-

2.1. The petitioner was initially appointed as a Lower Division Assistant [LDA] in the establishment of District & Sessions Judge, Kokrajhar and he joined his service on 23.05.1990. As the petitioner joined later in the post of Lower Division Assistant [LDA] than few other appointees from the same recruitment process, his position in the Gradation List in the post of LDA was shown at a lower position than them. For the purpose of recruitment to those posts of LDA, the selection process was undertaken in the year 1990 and on completion of the selection process, a select list was prepared and published on 20.04.1990. In the said select list, the name of the petitioner appeared at serial no. 2. By an Order dated 23.04.1990, few of the selected candidates from the said select list whose merit positions were lower than the petitioner in the select list, were appointed as Lower Division Assistants [LDAs] but the case of the petitioner was not considered for appointment on 23.04.1990 on the ground that there was some objection raised regarding the involvement of the petitioner in a criminal case. A writ petition, Civil Rule no. 859/1990 was preferred previously by the petitioner, contending that he had been acquitted by the appellate court’s judgment and order passed in the criminal proceedings registered against him. By the Judgment and Order dated 16.05.1990 rendered in the said writ petition, Civil Rule no. 859/1990, the respondent no. 3 was directed to give appointment to the petitioner and the appointment of the petitioner in the post of LDA was accordingly made on 23.05.1990.

2.2. When in an inter-se seniority list of incumbents holding the post of LDA was provisionally circulated by the establishment, the position of the petitioner was shown below the other appointees who were appointed pursuant to the Order dated 23.04.1990. Aggrieved thereby, the petitioner preferred another writ petition, W.P.[C] no. 1959/2000. By a Judgment and Order dated 21.05.2003 rendered in the writ petition, W.P.[C] no. 1959/2000, it was inter alia observed that the petitioner was entitled to be appointed at least from the date on which the other selected candidates from the select list dated 20.04.1990 were appointed and the petitioner would be senior to the other appointed candidates in view of his higher merit position in the select list.

Remedial measures were accordingly directed.

2.3. Pursuant to the Judgment and Order dated 21.05.2003, the respondent no. 3 passed an Order dated 25.08.2003 by placing the petitioner above four other appointees in the posts of LDA, who were appointed on 23.04.1990 and accordingly, the petitioner was also granted all the consequential benefits. By an Office Order dated 25.08.2004, the petitioner was promoted to the post of Upper Division Assistant [UDA] in the establishment of the respondent no. 3. By a subsequent Office Order no. 32 dated 18.09.2004, the respondent no. 3 had ordered correction in respect of the seniority position of the petitioner in the Gradation List of the establishment and as per the said Order, the petitioner’s promotion to the post of UDA was given retrospective effect from 27.07.2000.

2.4. When there arose a vacancy in the post of Civil Sheristadar in the office of the Civil Judge, Kokrajhar, the respondent no. 3 constituted a Selection Board for the purpose of considering the incumbents in the feeder cadre of Upper Division Assistant [UDA] for promotion to the said vacant post o