KAMINI KUMAR DAS Vs. STATE OF ASSAM

JUDGEMENT

(1.) In the present writ petition instituted under Article 226 of the Constitution of India, the petitioner has challenged a part of an Order no. 31 issued under Memo no. DJ.XII7/2018/920-41/E dtd. 3/3/2022 issued by the respondent no. 5, whereby, the respondent no. 6 has been promoted to the post of Supervisory Assistant [SA] in the Pay Band of Rs.14,000.00 - Rs.60,500.00 with Grade Pay : Rs.8,000.00, with the further observation that the inter-se seniority of the respondent no. 6 shall be counted above the petitioner.

(2.) The relevant background facts leading to the passing of the Order dtd. 3/3/2022 can be, briefly, stated at first. On 15/2/2022, a notice was published by the respondent no. 5 informing the persons named therein which included the petitioner and the respondent no. 6, that oral interview/viva-voce for promotion to higher post[s] was scheduled on 17/2/2022 in the office chamber of the respondent no. 5. As on 15/2/2022, both the petitioner and the respondent no. 6 were serving in the post of Upper Division Assistant [UDA] in the establishment of District and Sessions Judge, Dhubri. By the Notice dtd. 15/2/2022, 5 [five] Upper Division Assistants [UDAs] including the petitioner and the respondent no. 6, were asked to appear before an Interview Board as per schedule indicated therein. On the scheduled date for oral interview/viva-voce, that is, on 17/2/2022, the Interview Board constituted and headed by the respondent no. 5, interviewed the candidates called by the Notice dtd. 15/2/2022 including the petitioner and the respondent no. 6, to consider them for promotion to the post of Supervisory Assistant [SA]. After the oral interview/viva-voce, the Order no. 31 dtd. 3/3/2022 has been passed, whereby, the respondent no. 6, an Upper Division Assistant [UDA], then working in the office of the respondent no. 5, has been promoted to the post of Supervisory Assistant [SA] vice one Sri Iftikar Azad promoted/upgraded. By the Order no. 31 dtd. 3/3/2022, a number of other members of the Assam District and Sessions Judge Establishment [Ministerial] Service have also been promoted to different posts. In the Order no. 31 dtd. 3/3/2022, it has inter alia been observed that the inter-se seniority of the respondent no. 6 as Supervisory Assistant [SA] is to be counted in terms of his merit position in the interview above the petitioner, an Upper Division Assistant [UDA].

(3.) The Assam District and Sessions Judges Establishment [Ministerial] Service Rules, 1987 [hereinafter referred to as 'the Rules, 1987' or 'the 1987 Rules' or 'the Rules, 1987', for easy reference], framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, regulate and govern the matters of recruitment and conditions of service of persons appointed to the Assam District and Sessions Judge Establishment [Ministerial] Service. As per Rule 2[1], 'Appointing Authority' means the District and Sessions Judge. Rule 2[3] has provided that 'District and Sessions Judge Establishment' means and includes all non-gazetted ministerial staff in the Office of the District and Sessions Judge, Additional District and Sessions Judge, Assistant District and Sessions Judge, Special Judge and Munsiffs of the District. As per Rule 2[5], 'Member of the Service' means a member of the Assam District and Sessions Judges Establishment [Ministerial] Service and as per Rule 2[10], 'Service' means the Assam District and Sessions Judges Establishment [Ministerial] Service.