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IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Devashis Baruah, J.
Dilip Chandra Kalita - Petitioner
Versus
The State of Assam and Ors. - Respondents
WP(C)No.2121/2018
Decided On : 08-08-2024
Constitution of India - Articles 14 and 16 - Assam Ministerial District Establishment Rules, 1967 - Review of promotion - The Court reviewed the promotion of the respondent No.5 to Junior Assistant, finding it in violation of seniority-cum-merit criteria, as the petitioner was senior by 3 years, 5 months, and 19 days - The Court set aside the promotion and directed a fresh selection process considering both parties. (Paras 14, 16)
Facts of the case:
The petitioner was appointed as Chowkidar in 1995 and the respondent No.5 in 1998. Both were confirmed in service in 2003. The respondent No.5 was promoted despite the petitioner's seniority.
Findings of Court:
The promotion of the respondent No.5 was set aside due to violation of Articles 14 and 16, and a fresh selection process was ordered.
Issues: Whether the promotion of the respondent No.5 was lawful given the seniority of the petitioner.
Ratio Decidendi: Seniority must be prioritized in promotions unless merit is equal; the respondent's promotion ignored the petitioner's seniority.
Result: Promotion of respondent No.5 set aside, fresh selection process ordered.
JUDGMENT :
Devashis Baruah, J.
Heard Mr. S Sahu, the learned counsel appearing on behalf of the petitioner. Also heard Mr. B Gogoi, the learned standing counsel, Finance and Taxation Department, Government of Assam and Mr. MP Sarma, the learned counsel appearing on behalf of the respondent No.5.
2. This Court vide a common judgment and order dated 08.08.2024 in Review Pet No.28/2023 and Review Pet No.128/2023 had reviewed the judgment and order dated 04.01.2023 passed in the instant writ petition. The effect of reviewing the judgment and order dated 04.01.2023 in the instant proceedings has led to restoration of the instant writ petition and recalling of the said judgment and order dated 04.01.2023. Though under Section 141 of the Code of Civil Procedure 1908, (for short, the Code), the provisions of the Code is not applicable to a proceedings under Article 226 of the Constitution, but in view of the well settled principles that the spirit of the said Code can be applied while taking into account a review proceedings, this Court on the basis of the mandate of Order XLVII, Rule 8 of the Code is to required rehear the instant writ petition or pass such other orders as may deem fit.
3. It has been submitted by the learned counsel appearing on behalf of the petitioner that if the instant writ petition is not taken up for disposal forthwith, it would result in perpetuation of an illegality whereby the respondent No.5, who was illegally appointed to the post of Junior Assistant would be reverted back to his position as Junior Assistant.
4. Mr. B Gogoi, the learned counsel appearing on behalf of the respondent department also submitted that in view of the judgment dated 04.01.2023, the respondent No.5 was reverted back to his original post as admittedly he had no qualification as per the amended Rule 6(6) of the Assam Ministerial District Establishment Rules, 1967 (for short, the Rules of 1967). Be that as it may, the respondent No.5 was junior to the petitioner. Under such circumstances, an early disposal of the writ petition is of utmost necessity.
5. It is under such circumstances, this Court, therefore, takes up the writ petition for hearing with the consent of all the parties.
6. The petitioner in the instant case was appointed to the post of Chowkidar/Grade-IV in the office of the Superintendent of Taxes Guwahati. His appointment was regularized by an order dated 24.02.1995.
7. On the other hand, the respondent No.5 joined the respondent department only on 20.03.1998. However, both the petitioner as well as the respondent No.5 were confirmed in service on 03.11.2003.
8. At this stage, this Court finds it pertinent to take note of an affidavit filed in Review Petition No.28/2023 by the respondent No.3 through the Joint Commissioner of Taxes, Assam. Paragraph 6 of the said affidavit is reproduced hereinunder:
Promotion decisions must adhere to seniority-cum-merit principles, ensuring compliance with Articles 14 and 16 of the Constitution.
The principle of 'seniority-cum-merit' requires that promotions must prioritize seniority among candidates who meet a minimum merit standard, and any deviation from this principle renders the promoti....
The principle of seniority-cum-merit mandates fair consideration for promotions, and failure to do so violates fundamental rights.
Promotion rules of a public service entity do not require graduation for advancement when the governing rules do not explicitly mandate such qualifications, emphasizing merit and seniority.
The court established that promotions must adhere to seniority rules based on continuous service, invalidating promotions conducted without a proper inter-se seniority list.
The importance of the position in the Select List for promotion and the prospective application of statutes.
The court upheld the Single Judge's decision, emphasizing the importance of seniority and misconduct in determining appointment validity under established legal principles.
The promotion of an employee without prior notice or hearing violates principles of natural justice, rendering such actions void and unenforceable.
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