IMPORTANT POINT
The principle of seniority-cum-merit mandates fair consideration for promotions, and failure to do so violates fundamental rights.

JUDGMENT :

N. UNNI KRISHNAN NAIR, J.

1. Heard Mr. A. Chamuah, learned counsel for the petitioner. Also heard Mr. R. Dhar, learned Addl. Senior Government Advocate appearing for the respondent nos. 1 to 3 and Ms. N.S. Thakuria, learned counsel appearing for the respondent nos. 4 to 7.

2. The petitioner in the present proceeding, has assailed an order dated 02.12.2019; insofar as, the promotion effected vide the same in respect of the respondent nos. 4 & 5 to the post of Senior Assistant and in respect of respondent no. 6 to the post of Accountant. The petitioner has also presented a challenge to an order dated 06.01.2020, promoting the respondent no. 6 herein, to the post of Superintendent and the respondent no. 7 to the post of Senior Assistant.

3. The brief facts requisite for adjudication of the issue arising in the present proceeding is noted as under:

The petitioner had joined the services of the respondent no. 2 i.e. the Assam State Development Corporation for Other Backward Classes Limited (hereinafter referred to as ‘the Corporation’) as Junior Assistant on 30.07.1990. In the year 1998, a departmental proceeding came to be instituted against the petitioner and he was charged with misappropriation of cash amounting to Rs. 56,924.14 (Rupees Fifty Six thousand Nine Hundred Twenty Four and Fourteen Paisa only) along with other charges of dereliction of duty. On conclusion of the departmental proceeding, instituted against the petitioner, vide an order dated 28.01.2000, the petitioner was imposed with the penalty of withholding of 03(three) service increments with cumulative effect. Further, recovery of the defalcated amount along with simple interest @ 5% per annum also came to be directed. The currency of the said penalty so imposed upon the petitioner expired in the year 2004. It is to be noted that the petitioner had not assailed the said penalty imposed upon him by the disciplinary authority and he had complied with the directions so passed in this respect.

The respondent Corporation, for the purpose of regulating the manner of recruitment to various posts available in the Corporation, proceeded to publish the Assam State Development Corporation for OBC Ltd (Ministerial Establishment Service) Rules, 1995. In the case of the incumbents working in the post of Junior Assistant, the next promotional avenue in their respect was specified as the post of Senior Assistant. Posts being available in the Corporation, the respondent authorities had initiated a process of filling the posts so involved by way of promotion. Basing on the recommendation of the Selection Committee, the respondent no. 3 proceeded to promote the respondent nos. 4 & 5 herein, vide issuance of an order dated 02.12.2019 to the post of Senior Assistant. Vide the said order, the respondent no. 6 herein also came to be promoted to the post of Accountant. It is to be noted that the petitioner is senior to the respondent nos. 4, 5 & 6 in the cadre of Junior Assistant and the criteria mandated for such promotion is “seniority-cum-merit.”

It is further projected that the case of the respondent no. 6 was further considered for promotion to the post of Superintendent and he was so promoted vide an order dated 06.01.2020. The resultant vacancy arising in the post of Senior Assistant on account of the promotion of the respondent no. 6 to the post of Superintendent was so filled up by promoting the respondent no. 7 herein. The petitioner although being senior to the respondent nos. 4, 5 & 7 having not being so promoted to the cadre of Senior Assistant, as well as assailing the promotion made in respect of the respondent no. 6 to the post of Accountant and thereafter, to the post of Superintendent, being so aggrieved, had instituted the present proceeding.

4. Mr. A. Chamuah, learned counsel for the petitioner, by reiterating the above facts has submitted that the criteria for promotion to the post of Senior Assistant being “Seniority cum merit”, no reasons was so assigned as to