IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

WP(C) NO. 4312 Of 2011 Petitioner :

Manoj Kumar Baruah, S/o Lt. Mozibar Baruah, Research Officer, Handloom, Research, & Designing Centre, Ambari, Resident of Vill & PO-Chenga, PS-Tarabari, Dist-Barpeta, Assam.

By Advocates: Mr. P. K. Goswami, Sr. Advocate, Mr. B. D. Goswami, Advocate, Ms. B. Choudhury, Advocate, Mr. M. P. Parashar, Advocate.

Respondents: 1. State of Assam, Represented by the Principal Secretary, Handloom, Textiles & Sericulture Department, Dispur, Guwahati-6 Cum Chairman of the Selection Committee.

2. Director of Handloom and Textiles, Assam, Ambari, Guwahati-1.

3. Sri Jayanta Deva Sarma, S/o Sri Ramesh Ch. Sarma, R/o-Dinabandu Nibash, Assam Engineering College Campus, Jalukbari Guwahati-13.

By Advocates: Mr. H. Rahman, Govt. Advocate, Mr. U. K. Nair, Advocate, Mr. B. Sarma, Advocate,

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Mrs. S. P. Nair, Advocate.

WP(C) NO. 5380 Of 2012 Petitioner :

Manoj Kumar Baruah, S/o Lt. Mozibar Baruah, Research Officer, Handloom, Research & Designing Centre, Directorate of Handloom & Textiles, Assam, Ambari, Guwahati-781001.

By Advocates: Mr. P. K. Goswami, Sr. Advocate, Mr. B. D. Goswami, Advocate, Ms. B. Choudhury, Advocate, Mr. M. P. Parashar, Advocate.

Respondents: 1. State of Assam, Represented by the Principal Secretary to the Govt. of Assam, Handloom, Textiles & Sericulture Department, Sachivalaya, Dispur, Guwahati-781006.

2. Director of Handloom & Textiles, Assam, Ambari, Guwahati-781001.

3. Sri Jayanta Deva Sarma, S/o Sri Ramesh Ch. Sarma, R/o-Dinabandhu Nibash, Assam Engineering College Campus, Jalukbari, Guwahati-781013.

By Advocates: Mr. H. Rahman, Govt. Advocate, Mr. U. K. Nair, Advocate, Mr. B. Sarma, Advocate, Mrs. S. P. Nair, Advocate.

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B E F O R E HON’BLE MR. JUSTICE UJJAL BHUYAN

Date of hearing : 23.07.2015

Date of Judgment : 24.07.2015

J U D G M E N T AND O R D E R (ORAL)

This order will dispose of both WP(C) Nos. 4312/2011 and

5380/2012.

2. Subject matter of the two writ petitions is promotion of respondent No. 3 to the post of Officer-In-Charge, Handloom

Research and Designing Centre under the Handloom, Textiles and

Sericulture Department, Govt. of Assam.

3. Minutes of the Selection Committee meeting held on

30.07.2011 recommending respondent No. 3 for such promotion is under challenge in WP(C) No. 4312/2011 and the consequential promotion order dated 12.08.2011 is under challenge in WP(C) No.

5380/2012. Parties are common in both the proceedings.

4. Facts of the case may be briefly narrated.

5. According to the petitioner, he had joined the

Handloom, Textiles & Sericulture Department, Govt. of Assam WP(C) No. 4312/2011 WP(C) No. 5380/2012 Page 3 of 17

(Department hereinafter), in the post of Research Officer on

05.05.1995 following his selection and recommendation by the

Assam Public Service Commission (APSC). Since then he has been serving as Research Officer for more than two decades. On the other hand, respondent No. 3 had joined the Department initially as

Master Dyer on 08.03.1988. Thereafter, he was appointed as Textile

Chemist in the Department on 22.02.1995 under Regulation 3 (f) of the APSC (Limitation of Functions) Regulation, 1951.

Subsequently, on being recommended by the APSC, the initial 3 (f) appointment of respondent No. 3 was regularized on 29.06.1995.

6. In the absence of service rules governing the service conditions of the employees of the Department, Govt. of Assam has framed a service order called Assam Handloom Textiles

(Recruitment and Promotion) Service Orders, 1988 (Service orders hereafter) which was notified on 04.09.1988. Procedure for promotion is laid down in Rule 8 of the service orders. Rule 8 (b) provides that selection shall be made on the basis of merit with due regard to seniority and-(1) personality and character, (2) tact, energy and general intelligence, (3) integrity and (4) previous record of service. As per Schedule II to the service orders, Officer-In-Charge,

Handloom Research and Designing Centre (HRDC) is single cadre post to be filled up by promotion. Both Research Officer and Textile

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Chemist are treated as feeder cadre for such promotion. However, it is remarked that such promotion shall be according to seniority.

7. As already noticed, petitioner is serving as Research

Officer and respondent No. 3 is serving as Textile Chemist. Both are in the feeder cadre for promotion to the next higher cadre of Officer-

In-Charge, HRDC.

8. It appears that there was a tussle between the petitioner and respondent No. 3 initially as to their inter se seniority and also as regards promotion to the higher rank of Officer-In-

Charge, HRDC in view of what was construed to be conflicting requirements under Rule 8 (b) and Schedule II since Rule 8 (b) says selection on the basis of merit with due regard to seniority and other criteria mentioned therein while Schedule II says that such promotion shall be according to seniority.

9. Respondent No. 3 had approached the Assam

Administrative Tribunal by filing an appeal being 14 ATA/2006 seeking seniority over the petitioner and to consider his promotion to the post of Officer-In-Charge, HRDC. Tribunal by its order dated

30.04.2008 rejected the claim of respondent No. 3 for seniority over the petitioner and directed the authority in the Department to conduct selection. Following the same, Selection Committee held its

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meeting on 27.07.2009 but did not make any recommendation in view of what was perceived to be conflict between Rule 8 (b) and

Schedule II. Government was urged to amend the service orders to enable selection for promotion to the post of Officer-in-Charge,

HRDC. Thereafter, both petitioner and Respondent No. 3 approached this Court by filing separate writ petitions, being WP(C)

No. 4086/2009 filed by the petitioner and WP(C) No. 4762/2009 filed by respondent No. 3. Both claimed seniority over the other and staked claim to promotion to the post of Officer-In-Charge, HRDC on that count. The two writ petitions were heard together and were disposed of by a common order dated 27.01.2011. By the said common order, this Court upheld the decision of the Tribunal holding the petitioner senior to respondent No. 3. On the question of selection criteria, this Court clarified that there is no conflict between the provisions of Rule 8 (b) and Schedule II and the selection for promotion has to be carried out as per criteria laid down under Rule 8 (b) i.e. on the basis of merit with due regard to seniority and-(1) personality and character, (2) tact, energy and general intelligence, (3) integrity and (4) previous record of service.

10. Principal Secretary to the Govt. of Assam, Handloom,

Textiles & Sericulture Department passed an order dated

19.07.2011 holding that seniority of respondent No. 3 can be

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counted only from 29.06.1995 when he was appointed on regular basis as Textile Chemist as per recommendation of the APSC. It was held that between the petitioner and respondent No. 3, petitioner is senior in service he having joined on 05.05.1995.

11. Selection Committee constituted to consider selection for promotion to the post of Officer-In-Charge, HRDC held its meeting on 30.07.2011. As per minutes of the said meeting, the

Selection Committee found respondent No. 3 to be more deserving for promotion to the post of Officer-In-Charge, HRDC and accordingly recommended his promotion. Thereafter, consequential promotion order was issued by the Principal Secretary on

12.08.2011.

12. As noticed above, both Selection Committee recommendation and the consequential promotion order have been put to challenge by the petitioner in the two writ petitions.

13. Respondents have filed separate affidavits in the second case i.e. in WP(C) No. 5380/2012.

14. Respondent Nos. 1 & 2 in their common affidavit has stated that post of Officer-In-Charge, HRDC is required to be filled up by promotion from Research Officer/Textile Chemist as per provision of Rule 8 (b) of the service orders. While respondent No. 3 WP(C) No. 4312/2011 WP(C) No. 5380/2012 Page 7 of 17

is junior to the petitioner, Selection Committee found respondent

No. 3 to be more deserving for promotion on the basis of merit with due regard to seniority and also taking into account other criteria laid down in Rule 8 (b) of the service orders. Recommendation of the Selection Committee is in accordance with law. Therefore, no interference is called for. It is however, stated that gradings in the

ACRs were not communicated to the petitioner since no adverse remarks were found in the ACRs.

15. Respondent No. 3 in his affidavit has stated that he is far superior to the petitioner in so far merit is concerned. Though

Department has treated petitioner to be senior to him, he has longer experience in the Department than the petitioner by virtue of his previous service. He has better academic credentials than the petitioner and in fact he is a Ph.D scholar on textile designing with special reference to Kamrup district. He has been recommended by the Selection Committee by applying the criteria spelt out in Rule 8

(b). Promotion of respondent No. 3 as Officer-In-Charge of HRDC has since been regularized after obtaining approval of APSC. No case for interference is made out by the petitioner. Therefore, both the writ petitions should be dismissed.

16. Heard Mr. P. K. Goswami, learned Sr. Counsel for the petitioner in both the cases and Mr. H. Rahman, learned Govt. WP(C) No. 4312/2011 WP(C) No. 5380/2012 Page 8 of 17

Advocate, Assam. Also heard Mr. U. K. Nair, learned counsel for respondent No. 3 in both the cases.

17. Mr. Goswami has confined his submission to the issue of Selection Committee not following the criteria of merit with due regard to seniority as stipulated in Rule 8 (b). He has placed reliance on a decision of this Court in Ramen Chandra Kalita and Anr. Vs

State of Assam & Ors. reported in (2004) 1 GLR 239 to contend that when the criteria of merit with due regard to seniority is applied, necessarily there has to be a fusion between the marks awarded for merit and the marks awarded for seniority, with merit being given greater weightage. He submits that though the criteria of merit and suitability with due regard to seniority, as was explained in Ramen

Chandra Kalita (supra), is essentially a merit based criterion, seniority cannot altogether be ignored and has to be considered parallely alongwith merit while determining the eligibility of a candidate. Referring to the said judgment, learned senior counsel submits that certain percentage of marks may be awarded for merit and seniority though percentage prescribed for merit must necessarily be higher than the percentage prescribed for seniority.

He has taken the Court to the minutes of the Selection Committee recommendation dated 30.07.2011 and submits that a bare reading of the minutes would show that the Selection Committee made the

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recommendation entirely on the basis of merit without giving any weightage to seniority. It was a merit based selection and not merit with due regard to seniority. Referring to the grading of “excellent” awarded to respondent No. 3 in the ACR for one of the years under consideration, learned senior counsel submits that under the

Assam Services (Confidential Rolls) Rules, 1990, there is no grading of “excellent”. This only goes to show the pronounced inclination of the Selection Committee towards respondent No. 3 and thus the recommendation of the Selection Committee stood vitiated.

18. Per contra, Mr. Nair, learned counsel for the respondent

No. 3 submits that a dispassionate analysis of the recommendation of the Selection Committee would show that the Selection

Committee had taken an overall view of the candidature of both the petitioner and respondent No. 3 and by applying the provisions contained in Rule 8 (b), respondent No. 3 was found to be more suitable than petitioner and was accordingly recommended. He submits that going by the gradings given in the ACRs of the petitioner and respondent No 3 and the overall merit profile of respondent No. 3 it becomes crystal clear that respondent No. 3 is far superior to the petitioner on merit. With merit with due regard to seniority being primarily a merit based criteria, seniority will come

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into play only when merit of the two candidates are at par. In any case, he submits that though petitioner has been held to be senior to respondent No. 3, the length of service of both the candidates are almost equal and on the count of seniority petitioner cannot expect such higher marks so as to overshadow the better merit of respondent No. 3. On the question of ACR gradings, he submits that in respect of both petitioner and respondent No. 3 the gradings were not communicated and not that the gradings were not communicated only to the petitioner. He therefore submits that there is no ground at all to interfere with the promotion of respondent No. 3.

19. Submissions made by Mr. Nair, learned counsel have been adopted by Mr. Rahman, learned Govt. Advocate, Assam, who has also referred to the affidavit filed by respondent Nos. 1 & 2.

20. Submissions made at the bar have received the due consideration of the Court. The materials on record as well as the relevant provisions of the service orders have been gone into.

21. After the previous round of litigation, the area of dispute between the parties has considerably narrowed down; now it is only confined to the issue of interpretation of Rule 8(b) and its application by the Selection Committee. It is the admitted position

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now that petitioner is senior to respondent No. 3 though there is not much difference between the length of regular service rendered by both of them. Post of Officer-In-Charge, HRDC is required to be filled up by way of promotion from Research Officer/Textile Chemist by applying Rule 8(b) which has already been referred to in the earlier part of the judgment. Since Rule 8 (b) is central to the debate, the same may once again be adverted to. Rule 8 (b) provides that selection for promotion shall be made on the basis of merit with due regard to seniority and considering the following criteria:- (1) personality and character, (2) tact, energy and general intelligence, (3) integrity and (4) previous record of service.

22. In Ramen Ch. Kalita (supra), this Court after referring to several decisions of the Apex Court held that the correct meaning of the expression merit and suitability with due regard to seniority in the context of the Assam Engineering (PWD) Service Rules, 1978 would be that though the criteria of merit and suitability with due regard to seniority is essentially a merit based criterion, seniority cannot altogether be ignored and has to be considered parallelly alongwith merit while determining the eligibility of a candidate for his inclusion in the select list. While interpreting the said expression as above, this Court noticed the distinction between the two expressions merit cum seniority which means a criterion which is

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essentially one of merit where seniority comes into play only when merit is equal and merit and suitability with due regard to seniority as explained above. Though the Court observed that it would not be the duty of the Court to lay down the modalities regarding application of the aforesaid principle, by way of illustration, it was indicated that out of 100 marks a particular percentage can be assigned to merit and the remaining percentage to seniority. The percentage prescribed for merit must necessarily be higher than the percentage prescribed for seniority. What percentage of marks that should be given to seniority can also be worked out by taking into account each year of completed service and on that basis the necessary fusion between merit and seniority can be reached.

23. Having noticed the analysis of the principle merit and suitability with due regard to seniority as explained in Ramen Ch.

Kalita (supra), the provision of Rule 8 (b) may now be examined.

Rule 8 (b) does not confine the selection criteria to merit with due regard to seniority only but also includes other criteria such as -(1) personality and character, (2) tact, energy and general intelligence, (3) integrity and (4) previous record of service. These are the criteria which together make up the component of suitability of a candidate to be considered for selection. Therefore, for all intent and purport, the criteria laid down in Rule 8 (b) in essentially the criteria of merit

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and suitability with due regard to seniority. Therefore, applying the principle laid down in Ramen Chandra Kalita (supra), to achieve the necessary fusion between all the criteria mentioned in Rule 8 (b) it was incumbent on the part of the Selection Committee to have assigned varying degrees of marks and percentage for each of the different criteria mentioned in Rule 8 (b). This is necessary so as to rule out subjectivity in the comparative assessment of the candidature of the candidates and to ensure objectivity in the selection. Keeping in mind the above, the minutes of the Selection

Committee meeting dated 30.07.2011 may now be examined. For ready reference, relevant portion of the same is quoted hereunder:-

“The Selection Committee found 2 (two) names of officers for selection by Promotion to the post of officer-in-charge of Handloom Research Design Centre under the Directorate of Handloom & Textiles, Assam. The officers are namely Sri Manoj Kr. Baruah, Research Officer and Sri Jayanta Deva Sarma, Textile Chemist. In pursuance of the order dated 27.01.2011 passed by the Hon’ble Gauhati High Court in both the aforesaid cases, selection for Promotion to the Post of officer-in-charge, HRDC is to be made on the basis of merit with due regard to seniority and also taking into account other criteria laid down under order 8(b) of the Assam Handloom Textiles (R & P) Service Orders, 1988.

The Committee examined the single order dtd. 27.01.2011 pertaining to WP(C) No. 4086/2009 and WP(C) No. 4762/2009 and Govt. order issued vide No. HTS.134/2009/187 dtd. 19.07.2011 declaring Sri Manoj Kr. Baruah as Senior in Service to Sri Jayanta Deva Sarma.

The Selection Committee thereafter examined the ACRs of the incumbents in question. As per records, Sri Monoj Kr. Boruah has two “Good” and one “Very Good” for the period from 2007-2008 to 2010-2011, while Sri Jayanta Deva Sarma has one “Good”, one “Excellent” and one “Very Good”. The committee unanimously resolved to consider the grade “Excellent” as “Very Good” and thus Sri Deva Sarma has two “very Good” and one “Good” ACR for the year under consideration.

In terms of other criteria relevant to merit, the committee observed that Sri Deva Sarma has high academic records and research aptitude as he has done his Ph.D in Textiles, attended workshops on Handicraft and Textiles in the country and also attended various Technical trainings on Textiles outside Assam. While compared to WP(C) No. 4312/2011 WP(C) No. 5380/2012 Page 14 of 17

this, Sri M. Boruah has only basic minimum entry qualification, i.e. HSLC and Diploma in Textiles Technology. Moreover Sri Deva Sarma has also comparatively better working experience records than Sri Boruah.

The Committee observed that as the post is closely associated with Handloom Research & Design Centre (HRDC), Sri Sarma would fit to the post adequately. Thus under the criteria of merit with due regard to Seniority, Sri Deva Sarma appears to be more deserving than the other candidate for the post of officer- in-charge of Handloom Research & Design Centre and accordingly recommended for promotion to the post of officer-in-charge, HRDC under the Directorate of Handloom & Textiles, Assam.”

24. A careful perusal of the said minutes does not indicate application of mind to the criteria mentioned in Rule 8 (b) as explained above. It appears that the Selection Committee had basically gone by the merit component to the exclusion of the other criteria, such as, personality and character, tact, energy and general intelligence, integrity and previous record of service.

25. At this stage, it may be pointed out that for determining comparative merit, one of the yardstick is gradings given in the

ACRs and quantification of marks based on such gradings. Though it has not been argued by Mr. Goswami, it has come to the notice of the Court that ACR gradings or entries were not communicated either to the petitioner or to the respondent No. 3. After the decision of the Apex Court in the case of Dev Dutt Vs. Union of India &

Ors. reported in (2008) 8 SCC 725 and the subsequent decisions in the cases of Abhijit Ghosh Dastidar Vs Union of India reported in

(2009) 16 SCC 146 and Sukhdev Singh Vs Union of India & Ors. reported in (2013) 9 SCC 566, it is incumbent on the part of the WP(C) No. 4312/2011 WP(C) No. 5380/2012 Page 15 of 17

authority to communicate the ACR gradings and entries to the

Government servant, whether it is an adverse entry or not an adverse entry, within a reasonable period so that the concerned

Government servant may make necessary representation against the gradings given, if necessary. Uncommunicated ACRs should not be taken into account while considering promotion. This has also vitiated the decision making process.

26. From the above discussion, Court is of the unhesitant view that the Selection Committee did not follow the criteria laid down in Rule 8 (b) of the service orders. The matter therefore has to go back to the Selection Committee for a fresh consideration of the rival claims. However, before doing that, it would be obligatory on the part of the Department to communicate the gradings/entries of the relevant ACRs to both petitioner and respondent No. 3 so that they can make their respective representations for due consideration of the authority. Once this exercise is done, the

Selection Committee may consider laying down proper norms by award of marks or percentage of marks for the various criteria laid down in Rule 8 (b) to ensure objectivity and to eliminate subjectivity in the selection.

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27. Let the whole exercise be carried out within a period of

4 (four) months from the date of receipt of a certified copy of this order.

28. Till then, promotion of respondent No. 3 shall be treated as tentative which shall abide by such fresh recommendation which may be made by the Selection Committee.

29. Both the writ petitions are accordingly allowed to the extent indicated above. No costs.

JUDGE

Aparna

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