WP(C) 8192/2003 BEFORE HON’BLE THE CHIEF JUSTICE J. CHELAMESWAR HON’BLE MR. JUSTICE B. K. SHARMA The claim of the petitioner is that he is senior to the respondent No.4 and cons equently entitled to get promotion to the rank of Superintendent at par with the said respondent. Be it stated here that while the petitioner was promoted as Su perintendent in the year 2003 (12-5-2003), the respondent No.4 was so promoted i n the year 2001 (19-7-2001). 2. The petitioner was first appointed as Lower Division Assistant (LDA) pur suant to the selection conducted for the purpose. In the select list prepared an d published on 2.3.1977, the name of the petitioner appeared at Sl. No. 6. Be it stated here that the select list was prepared on the basis of merit. 3. The petitioner joined as LDA alongwith 11 others on different dates. The petitioner joined on 4.4.1977 pursuant to the order of appointment issued on 29 .3.1977. 4. In the year 1988 (4.6.1988), the petitioner alongwith 4 other LDAs were promoted to the cadre of UD Assistant (UDA). According to the petitioner, as per the seniority maintained, his name appeared at Sl. No.8 in the cadre of UDA. 5. In the year 2001, the respondent No.4 alongwith two others were promoted to the cadre of Superintendent by order dated 19.7.2001. However, the petitione r was not so promoted. Aggrieved, he filed a representation dated 24.7.2001 befo re the Registrar General of this Court, wherein, he took the plea that his merit position in the select list for appointment as LDA being at Sl. No.6, would ran k senior to the respondent No.4 and another Shri Rabi Sankar Sarma, whose merit positions were at Sl. No. 8 and 10 respectively. Be it stated here that although initially Shri Rabi Sankar Sarma was also impleaded as respondent No.5 but his name stood deleted as per order dated 21.10.2009 passed in MC No. 2163/2009. Suc h order was passed in view of the fact that said Shri Sarma expired during the p endency of the writ petition. 6. It appears that the Registry of this court fixed the seniority of the pe titioner below the said two persons on the basis of the date of joining the post of LDA. As noted above, the date of joining of the petitioner was 4.4.1977, on the other hand, the said two incumbents joined on 1.4.1977. In the representatio n filed by the petitioner, the judgement of the Apex Court in Civil Appeal No. 3 606/96 (Dipika Devi Vs. Bhava Kanta Hazarika) pertaining to this court, was also referred to. In the said judgement, the Apex Court held that seniority should b e determined on the basis of merit position in the select list and the date of j oining. 7. The aforesaid representation having not been attended to, the petitioner made further representations dated 24.9.2001 and 2.5.2003. When the said repres entations were still pending, the petitioner was promoted to the rank of Superin tendent by order dated 12.5.2003. However, before such promotion of the petition er, the respondent No.4 alongwith said Shri Rabi Sankar Sarma was promoted as Su perintendent by order dated 19.7.2001. 8. The petitioner made further representations on 28.5.2003 and 19.7.2003 f or antedating his promotion but the same also did not receive any attention of t he authority. It will be pertinent to mention here that pursuant to the aforesai d judgement of the Apex Court, the relevant rule was amended providing that the seniority will be determined on the basis of the merit positions obtained in the select list, subject however, to the condition that the appointees will have to join the post within the period of joining time. In the instant case, there is no dispute that the petitioner had joined the post of LDA within the joining per iod. 9. In paragraph 18 of the writ petition, it is the specific plea of the pet itioner that other similarly situated employees have been redressed with their g rievances relating to fixation of their seniority on the basis of merit position s in the select list. However, the grievance of the petitioner has not been redr essed. 10. It is in the aforesaid circumstances, the petitioner has filed the writ petition. 11. The respondents, both official and private, have not filed any counter a ffidavit denying the contentions raised in the writ petition. However, Mr. B.C. Das, learned Standing Couunsel, Gauhati High Court has produced the records. 12. We have heard Mr. M.K. Choudhury, learned senior counsel appearing for t he petition as well as Mr. B.C. Das, learned Standing Counsel, Gauhati High Cour t. However, inspite of service of notice on the respondent No.4, none has appear ed on her behalf. While Mr. Choudhury, learned counsel for the petitioner submit ted that in view of the fact and circumstances involved in the case, the petitio ner is entitled to get seniority over the respondent No.4 and consequently entit led to get promotion at par with the said respondent, particularly to the rank o f Superintendent. He submitted that the petitioner should be deemed to have been promoted to the rank of Superintendent with effect from 19.7.2001 with the cons equential higher seniority over the respondent No.4. As noted above, while the r espondent No.4 was promoted as Superintendent on 19.7.2001, the petitioner was s o promoted on 12.5.2003. 13. Mr. B.C. Das, learned Standing Counsel, Gauhati High Court on the other hand submitted that even if the petitioner is assigned seniority over the respon dent No.4, same by itself may not entitle the petitioner to get promotion at par with the said respondent. When the matter was heard on 15.12.2009, he made a pr ayer for taking up the matter on some other date enabling him to produce the rec ords. As noted above, he has produced the records, which has been duly considere d by us. 14. By now, law is well settled that normally seniority is to be determined on the basis of the merit positions obtained in the select list. In the aforesai d decision in Dipika Devi, the Apex Court was concerned with determination of se niority in the post of Junior Grade Translator of this court. The appellant was placed at Sl. No. 2 of the select list prepared on the basis of the comparative merit. However, the selectee No.3 was assigned higher seniority above her on the basis of the date of joining on 11.9.1984, ahead of the appellant who joined on 12.9.84. This court held that the selectee No.3 having joined prior to the appe llant would rank senior to her. The Apex Court noticed the particular opinion ex pressed by the Administrative Judge that the appellant being higher in order of merit, the fact that she joined a day latter, would not make her junior. While r endering the said opinion, the particular rule provided for fixation of seniorit y on the basis of the date of joining was also referred to which has since been amended pursuant to the said judgement. The particular observation of the Apex C ourt is as follows :- We may observe that Rule 20 will not apply to a case where there is dir ect recruitment to the post and a select list has been prepared in order of meri t. In such a case, if the selected persons join on different dates, their inter se seniority on the basis of merit shown in the select list, cannot be disturbed unless there is failure by some one to join duty within the time allowed for th is purpose. It is nobody’s case that Smt. Dipika Devi did not join her duty with in the time allowed for the purpose. For this reason, her higher position in ord er of merit in the select list could not be disturbed merely because a person lo wer to her in order of merit in the select list came to join fortuitously a day earlier to her . 15. After the aforesaid decision of the Apex Court, the issue raised in this writ petition is no longer resintegra. The petitioner having obtained higher me rit position than the respondent No.4 would naturally rank senior to the said re spondent. This fact all along ignored by the Registry, so much so, even the repr esentations submitted by the petitioner from time to time were not attended. 16. We have verified the records produced by the learned Standing Counsel, G auhati High Court. From the said records, it appears that respondent No.4 was as signed higher seniority above the petitioner and thereafter further promotions u pto the rank of Superintendent were also affected on that basis. The records hav e further revealed that the DPC recommended promotion of the respondent No.4 to the rank of Superintendent as per her the then seniority at Sl. No.2. Late R.S. Sarma was at Sl. No.3 and one Shri K.R. Teron was at Sl. No.1, while the petitio ner was at Sl. No.4. 17. The DPC recommended the first three officers for promotion against the 3 (three) vacant posts of Superintendent. Nothing adverse was recorded against th e petitioner but he could not be promoted in absence of any further vacancy. Had the seniority been fixed correctly as per the merit positions obtained in the s elect list, the petitioner would have definitely ranked senior to the respondent No.4 and consequently would have earned promotion alongwith her in 2001 itself, to be precise on 19.7.2001. 18. Alongwith the records, the ACRs of the officers are also available. Whil e the petitioner and the respondent No.4 all along graded as Good , said late R abi Sankar Sarma was graded as Satisfactory . Thus even on the basis of the gra dings earned by the incumbents, the petitioner would have scored a march over bo th the incumbents i.e. the respondent No.4 and late Rabi Sankar Sarma. Firstly, on the basis of higher seniority and secondly on the basis of performance apprai sal reflected in the ACR. Be it stated here that the DPC made the recommendation for promotion to the rank of Superintendent on the basis of the said ACRs 19. After the aforesaid deprivation of the petitioner from being promoted to the rank of Superintendent because of wrong fixation of seniority and non-avail ability of another vacancy (fourth vacancy), the petitioner was promoted in the year 2003 (12.5.2003), which he otherwise would have earned in the year 2001 its elf alongwith respondent No.4 with higher seniority position. 20. Mr. B.C. Das, learned Standing Counsel, Gauhati High Court, during the c ourse of hearing, in his usual fairness, submitted that there cannot be any deni al that the petitioner would rank senior to the respondent No.4 and the case of the petitioner for promotion ought to have been considered on that basis. Referr ing to the ACRs of the petitioner and the respondent No.4 and so also late Rabi Sankar Sarma, he admitted that had the seniority of the petitioner been correctl y assigned and had there been the fourth vacancy, the petitioner would have been promoted alongwith the said two incumbents in 2001 itself with higher seniority above them. 21. In the case of R.K. Sethi and another Vs. Oil & Natural Gas Commission a nd others reported in (1997) 10 SCC 616, the Apex Court dealing with the questi on of fixation of inter se seniority between two groups, noticed the deprivation of promotion of the seniors in the rank of Telex Operator. While holding that s uch Telex Operators could rightly feel aggrieved if they were denied promotion t o the next higher rank. In paragraph 12 of the judgement, the Apex Court made th e following observation :- The ’next below rule’ in service jurisprudence seeks to ensure that if a junior employee is given promotion without considering his senior then the sen ior employee can claim the right to be considered for such promotion with effect from the date on which the junior was so promoted . 22. In Ashok V. David Vs. Union of India reported in AIR 1996 SC 2165, the A pex Court dealing with the promotion to the Indian Administrative Service (IAS), when found that the appellants although were due for promotion in the year 1982 , as per the provisions of IAS (Appointment by Promotion) Regulations, 1955 but were not considered as their seniority positions did not permit but subsequently , their seniority position was changed to their advantage and consequently were entitled to be considered for promotion from interior date, issued direction to the Union of India to give order of allotment anti-dating their promotion to IAS . 23. In the instant case, inspite of the repeated approach being made by the petitioner, his grievance was not redressed unmindful of the fact that the parti cular principle of law relating to seniority having been laid down in Dipika Dev i, the said principle was applicable to all such cases. Although, the petitioner was assigned lower seniority, he was not affected till the promotion of the res pondent No.4 alongwith late Rabi Sankar Sarma to the rank of Superintendent in t he year 2001. The petitioner was provided with such promotion two years thereaft er i.e. in 2003. Being aggrieved, he filed the writ petition. 24. During the course of hearing, it was submitted by the learned counsel fo r the parties that there is no system of publishing seniority list of the incumb ents in each cadre in the Gauhati High Court Service. Seniority is a condition o f service and is required to be determined on the basis of the criteria for dete rmination of such seniority. Gradation List is the compilation of the service pa rticulars of the employee in a cadre depicting the inter se seniority and prepar ed on the basis of the principle / rules. Unless the seniority lists pertaining to various cadres comprised in the High Court Rules are published, the incumbent s would never know as to where they stand in seniority position. 25. An employee must know his exact seniority position vis-à-vis other emplo yees. It is also important for the employer to readily locate the precise senior ity position of an employee at any given point of time. This is obviously becaus e one of the important incidence of a service career namely, promotion, is eithe r fully dependent on seniority or seniority plays a very important role in the c onsideration of the promotional process. An invariable practice has therefore de veloped of publication of a gradation or a seniority list showing the respective seniority placement of the employees. Such gradation lists are published from t ime to time in accordance with the frequency, if any, stipulated in the rules or administrative instructions. 26. As per the normal procedure, provisional Gradation List is required to b e published inviting objections from the incumbents and in consideration of such objections, the Gradation Lists are to be finalised. However, as submitted by t he learned counsel for the parties, in the High Court establishment, there is no system of publishing any Gradation List which naturally keep the employees in d ark about their service particulars including seniority position. Seniority play s a very important role in the consideration of the promotional process. It is a lways incumbent on the part of the administration to publish the seniority list pertaining to all the cadres comprised in the Gauhati High Court Rules. We, ther efore, direct the Registry that henceforth seniority lists pertaining to all the cadres shall be periodically published as indicated above. 27. Coming to the case in hand, when it is undisputed that the petitioner wo uld rank senior to the respondent No.4 and late Rabi Sankar Sarma, coupled with the fact that he had gradings Good for the relevant years at par with the resp ondent No.4 and higher gradings compared to the gradings earned by late Rabi San kar Sarma, there is no escape from holding that the petitioner on the basis of h is higher seniority and gradings in the ACR, but for the deprivation of seniorit y over the respondent No.4 would have earned promotion as Superintendent at par with her in the year 2001 (19.7.2001) itself, a fact Mr. Das, learned Standing Counsel, fairly admitted in course of hearing. 28. Under somewhat similar circumstances, the Apex Court in State of Bihar V s. Dr. Braj Kumar Mishra, reported in (1999) 9 SCC 546, dealing with the power u nder Article 226/227 of the Constitution of India, upheld the direction for prom otion of the respondent observing that in the given and admitted facts and circu mstances, nothing prevented the High Court from issuing such a direction, more p articularly, in view of the lapses, as in the instant case, attributable to the authority. It was observed that remand of the matter to the authority would have been merely a ritual and ceremonial. 29. For all the aforesaid reasons, the writ petition is allowed declaring th at the petitioner is senior to the respondent No.4 and shall be deemed to be pro moted to the rank of Superintendent at per with her and late Rabi Sankar Sarma f rom the date when they were so promoted i.e. 19.7.2001, with consequential senio rity over the respondent No.4. All other consequential benefits including notio nal fixation of pay will also follow. Registry shall issue necessary order in th is regard, as expeditiously as possible. 30. The writ petition is allowed, without however, any order as to costs.