WP(C) 6234/2010 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY HON’BLE MR. JUSTICE C.R.SARMA (Amitava Roy, J) Heard Mr D Choudhury, learned counsel for the petitioner and Mr R Adhika ry, learned State counsel. The petitioner, a Peon in the establishment of the Chief Judicial Magist rate, Nalbari is before this Court seeking to challenge Rule 6(4) of the Assam C hief Judicial Magistrate Establishment (Ministerial) Service Rules, 1987 (for sh ort, hereinafter referred to as ’the Rules’) as well as the process initiated by the Notification dated 30.10.2010 issued by the Chief Judicial Magistrate, Nalb ari to fill up, amongst others, two posts of Copyist reserved for the Schedule T ribe (P) and Scheduled Caste candidates. According to the petitioner, Rule 6(4) of the Rules contemplates promotion of a Grade-IV staff of the said establishmen t against 10% of the vacancies in the post of Lower Division Assistant/ Copyist. As the Notification is conceived to be in contravention of this provision of th e Rules in denial of the petitioner’s right of consideration for promotion, he b eing aggrieved, is before this Court seeking redress. The petitioner perceives the post of Copyist to be equivalent to that of the Lower Division Assistant as both the posts carry same scale of pay after the Assam Pay Revision Rules, 2010. In other words, for the purpose of the insta nt challenge the petitioner seeks to strike a parity between the posts of Lower Division Assistant and Copyist. It is in this perspective that, according to him , the impugned selection process being repugnant to the aforementioned provision s of the Rules, is liable to be adjudged null and void. The selection process is also assailed on the ground that it discloses cent percent reservation for the aforementioned two reserved category candidates. Mr Choudhury while reiterating the above has emphasized with reference t o Rule 6 (4)(c) of the Rules to contend that as the same clearly provides for pr omotion of the Grade-IV staff of the establishment of the Chief Judicial Magistr ate against the post of Lower Division Assistant/ Copyist for them, the impugned selection process is liable to be interfered with. For want of parity between the posts of Lower Division Assistant and Copyist, the Rules are liable to be st ruck down, he urged. Mr Adhikary, in reply, has contended that a plain reading of Rule 6(4)(c ) would suggest that the petitioner’s notion of promotion based thereon is wholl y misconceived. According to him, so long as the Rules do not conceive of promot ion from Grade IV to the post of Copyist/ Lower Division Assistant, the petition er’s plea of denial of right of consideration therefor is untenable. Vis-à-vis t he challenge to the Rules, Mr Adhikary has urged that it is up to the rule makin g authority to make necessary amendments if deemed fit in the attending facts an d circumstances of the case. But on the ground as urged by the petitioner, the s ame are not liable to be declared unconstitutional, null and void. Rule 6(4)(c), the standing plank of the petitioner’s case deserves to be extracted as hereinbelow: (c) by selection on the basis of seniority-cum-merit from amongst Grade IV s taff of the Chief Judicial Magistrate’s Establishment (Ministerial) concerned wh o have passed the H.S.L.C or equivalent examination and have rendered at least 7 years of continuous service in the Chief Judicial Magistrate’s Establishment (M inisterial) on the 1st day of the year in which selection is made. . As would be apparent from the above text, it is a segment of Rule 6 rela ting to the eligible Grade -IV staff of the establishment of the Chief Judicial Magistrate of a district for being considered on the basis of a selection conduc ted on the norm of seniority-cum-merit for appointment/ induction to the post of Lower Division Assistant. The note appearing in Rule 6(4)(c) indicates that 10% of the vacancies in the post of Lower Division Assistant has been earmarked to be filled up in this manner. Rule 6(4) which deals with recruitment to the post of Lower Division Ass istant indicate three modes therefor:- i) direct recruitment on the basis of a competitive examination to be condu cted by the Chief Judicial Magistrate; ii) selection strictly on the basis of merit from amongst Copyists/ Typists of the Chief Judicial Magistrate’s establishment having the requisite educationa l qualification as required for direct recruitment of the Lower Division Assista nts; iii) by selection on the basis of seniority-cum-merit from amongst Grade-IV s taff of the Chief Judicial Magistrate’s establishment who have passed the H.S.L. C. or equivalent examination and have rendered at least 7 years of continuous se rvice thereat. The vacancies have been apportioned in the ratio of 80 : 10 : 10. Reading between the lines Rule 6(4), in our opinion, does not hint at al l at the concept of promotion to the post of Lower Division Assistant, whatever be the source of recruitment thereto. A sharp distinction in this regard is noti ceable vis-à-vis the post of Upper Division Assistant under Rule 6(3) which envi sages promotion thereto on the basis of seniority-cum-merit from amongst the eli gible Lower Division Assistants of the same establishment. In the above view of the matter, having regard to the scheme of the Rule s, more particularly, for recruitment to the post of Lower Division Assistant, i n our comprehension, the petitioner’s perception of promotion of a Grade-IV staf f thereto is misplaced. The impugned Notification, thus, cannot be said to be op posed to the letter and spirit of Rule 6(4) of the Rules. The challenge to the vires of Rule 6(4)(c) on the ground of subsisting d istinction between the posts of Lower Division Assistant and Copyist only on the basis of pay parity also is unconvincing. It is no longer res integra that ide ntical pay in two posts per se does not evince equivalence thereof. Be that as i t may, it would be upto the rule making authority to take note of the recommenda tions of the Assam Pay Commission, 2010 and the Assam Revision of Pay Rules, 201 0 to consider the necessity of appropriate amendments if called for in this rega rd. Rule 6(4)(c), in our estimate, ought not to be struck down on this ground. The fact that the Notification dated 30.10.2010 contemplates reservation to both the posts also ipso facto does not vitiate the process. In the absence of any material on record to indicate that these posts were available as well to the unreserved category, the challenge on this ground also has to fail. On a totality of the considerations as hereinabove, we find no merit in the instant petition. It is accordingly dismissed.