WP(C) 38/2008 BEFORE THE HON’BLE MR. JUSTICE RANJAN GOGOI THE HON’BLE MR. JUSTICE C R SARMA JUDGMENT & ORDER (oral) Ranjan Gogoi, J. 1. Heard Mr. A. K. Goswami, learned senior counsel appearing for the petiti oner, Sri P. S. Deka, learned Govt. Advocate, Assam, appearing for the responden t No.1, Sri B. C. Das, learned counsel appearing for the respondent Nos.2 and 3 and Sri T. J. Mahanta, learned counsel appearing for the respondent No.4. 2. The petitioner, who claims to be working as a Process Server (Grade-IV e mployee) in the establishment of the District & Sessions Judge, Barpeta, since 1 1.3.1996, has instituted the present proceeding seeking a direction for filling up one vacant Grade-III post in the said establishment in accordance with the pr ovisions of Rule 6(5)(c) of the Assam District and Sessions Judges Establishment (Ministerial) Service Rules, 1987. Under the provisions of the aforesaid Rules the post of LDA is to be filled up by direct recruitment; selection from copyist s and typists on the basis of merit and also by selection on the basis of senior ity cum merit from amongst Grade-IV staff provided such staff has rendered seven years continuous service in the establishment on the first day of the year in w hich selection is made. Under the Note appended to the aforesaid Rules the propo rtion of vacancies to be filled up in any year from the three sources has been s pecified to be 80 : 10 : 10 respectively. Contending that a vacancy had occurred in the establishment which was being attempted to be filled up by direct recrui tment through the Employment Exchange this writ petition had been filed seeking necessary interference of the Court. It may be noticed, at this stage, that the respondent No.4 in the writ petition is one of the candidates who had taken part in the selection for direct recruitment. 3. At the outset, it must be clarified that though the Note appended to Rul e 6(5) specifies the proportion of the vacancies to be filled up in any year, fo r reasons obvious, the quota or proportion prescribed by the said Note must be u nderstood to be in the context of total cadre strength and not vacancies occurri ng in every year. This is because unless more than 10 vacancies would occur in a ny given year in the Grade-III cadre, by itself an unlikely event, the operation of Clause 6(5)(b) and 6(5)(c) of the Rules would remain futile. This could not have been the intention of the Rule making authority. 4. Having clarified the position of the Rules in the aforesaid manner, the next question that must engage the attention of the Court is whether the claim f or consideration for promotion as made by the petitioner would be legally sustai nable. In this regard, the Court has perused the affidavit filed by the learned District & Sessions Judge as well as the additional affidavit filed by the petit ioner on 4.2.2009. The learned District & Sessions Judge in his affidavit has om itted to state the relevant details and has not indicated what is the strength o f the Grade-III cadre in his establishment and the number of posts filled up fro m the three different sources contemplated by Rule 6(5) of the Rules. The Court, therefore, necessarily had to look for the aforesaid materials elsewhere. In th is regard, Sri Goswami, learned counsel for the petitioner, has drawn the attent ion of the Court to the statements made in the additional affidavit of the petit ioner dated 4.2.2009 which would indicate that the total cadre strength in Grade -III is 24 out of which 20 posts have been filled up by direct recruitment, 3 by selection from Copyists under Rule 6(5)(b) and one post is vacant. At the heari ng a statement has also been made by Sri Goswami, learned counsel for the petiti oner, that one of the incumbents who had held a Grade-III post by way of direct recruitment has also retired in the meantime i.e. on 28.3.2009. If the facts st ated above are found to be correct on due verification the Court will understand that at present there are two posts vacant in the Grade- III cadre and there is no incumbent in the said cadre from the source contemplated by Rule 6(5)(c). Ru le 6(5)(c) having provided for an eligible class of incumbents to fill up the Gr ade-III post in the establishment subject to their eligibility and also suitabil ity the Court is of the view that the learned District and Sessions Judge, Barpe ta should be directed to make a verification of the above facts and thereafter i f any vacant post(s) would fall to the share of the Grade-IV staff for promotion by selection under Rule 6(5)(c) to act accordingly. In such selection that may be held the case of the petitioner and all other eligible persons will be consid ered by application of the conditions of eligibility and other norms that may be in force. The learned District & Sessions Judge will take appropriate and immed iate steps to implement the aforesaid direction of this Court. 5. This will dispose of the writ petition.