ORDER

Date : 29-07-2022 Heard Mr. M. Ahmed, learned counsel for the petitioner and Mr. N. Upadhyay, learned counsel for the respondents No. 1, 2, 3 and 4, being the authorities under the Irrigation Department, Government of Assam. The Office Note of 20.03.2018 shows that the unserved notice on respondent No. 5 has a posted endorsement that he had refused to accept notice. Accordingly, service of notice on respondent No. 5 is accepted and consequently, it has to be accepted that the respondent No. 5 voluntarily had not appeared before the Court. Also heard Mr. N. Haque, learned counsel for the respondent No. 6.

2. The petitioner and respondents No. 5 and 6 were all Grade-IV employees under the establishment of the Mankachar Division (Irrigation), Hatsingimari and all of them had sought for a consideration for promotion to the vacant Grade-III posts pursuant to the provisions of Rule 6(5) of the Assam Ministerial District Establishment Service Rules, 1967. Rule 6(5)(a)

and (b) are extracted as below:

“(5) Junior Assistants. – (a) By direct recruitment on the basis of a competitive examination to be conducted by the Deputy Commissioner at the beginning of each year unless otherwise directed by Government in this behalf;

(b) By selection on the basis of seniority-cum-merit from amongst Grade IV staffs of the district establishment concerned who have passed the [High School Leaving Certificate] or equivalent examination and have rendered at least 7 years of continuous service in the district establishment on the first day of the year in which selection is made.

Note:- (i) The proportion of vacancies to be filled in any year according to clauses (a) and (b) of sub-rule [(5)] of Rule 6 shall be 90:10 respectively. In the event of sufficient number of qualified or suitable persons not being available in category (b), the balance shall be made from category (a), i.e., through direct recruitment. Here vacancies shall include both permanent and temporary vacancies.

(ii) Appointment by selection under clause (b) of sub-rule [(5)] of this rule shall be made by the Deputy Commissioner from amongst the eligible Grade IV staffs.”

3. Rule 6(5)(b) provides that the promotion of Grade-IV employees are to be made by following the criteria of seniority-cum-merit and for such promotions, 10% of the posts in Grade-III are for the purpose whereas the balance 90% of the posts are to be filled up by direct recruitment. The Rules also require that for the purpose of consideration for promotion, the persons concerned are required to have rendered at least 7 years of continuous service and further, have the qualification of HSLC or equivalent pass.

4. The petitioner claims that he has the requirement of 7 years of continuous service as well as the qualification of HSLC. The selection from Grade-IV to Grade-III was given a consideration by the Selection Board in its meeting held on 05.06.2013 which comprised of the Superintending Engineer, South Goalpara Circle (Irrigation); Executive Engineer, Mankachar Division (Irrigation); Executive Engineer, Goalpara Division (Irrigation); Executive Engineer, Goalpara Invtn. Division (Irrigation); Executive Engineer, Goalpara Mech. Division (Irrigation) and Executive Engineer, Dudhnoi Division (Irrigation) as the members. For the 7 vacant posts of Section Assistant under the Mankachar Division (Irrigation), Hatsingimari, the Selection Committee recommended 7 candidates, wherein the petitioner Harun-Al-Rashid was at Sl. No. 5, the respondent No. 5 Omar Faruk was at Sl. No. 3 and the respondent No. 6 Ebrahim Ali was at Sl. No. 7. It is stated that the Sl. No. 2 Tomizur Rahman, Sl. No. 3 Omar Faruk, Sl. No. 4 Nazir Hussain, Sl. No. 7 Ebrahim Ali were promoted. In other words, although there was a recommendation to promote 7 persons, 5 persons were promoted and 2 were not promoted. Sl. No. 1 Akheruz Zaman who was also not promoted, had instituted WP(C) 224/2015, which was given a final consideration by the order dated 05.02.2018,