WA 331/2008 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE HRISHIKESH ROY P R E S E N T THE HON’BLE MR. JUSTICE RANJAN GOGOI THE HON’BLE MR. JUSTICE HRISHIKESH ROY For the appellants : Mr. C. Baruah, Sr. Advocate Mr. U.J. Saikia, Advocate. For the Respondents : Mr. P.S. Deka, Govt. Advocate, Assam Mr. S.K. Goswami, Mr. P.K. Sharma, Advocates for Respondent No. 3 Dates of hearing : 17.11.2009 Date of Judgment & : 17.11.2009 Order JUDGMENT AND ORDER (oral) (Ranjan Gogoi, J.) Heard Mr. C. Baruah, learned senior counsel for the appellants ( respondent No.3 and 4 in the writ petition) and Shri S.K. Goswami, learned couns el for the respondent No.3 in the writ appeal (writ petitioner). Also heard Mr. P.S. Deka, learned counsel appearing for the official respondents. 2. The challenge in the present appeal is against an order dated 17 .6.2008 passed by a learned Single Judge of this Court allowing Writ Petition (C ) No.2728 of 2006 by directing the official respondents in the writ petition to recast the seniority of the Respondent-writ petitioner and the appellants-Respon dent Nos. 3 and 4 in the cadre of Lower Division Assistant. The learned Single J udge by the aforesaid order had also set aside the promotion of the Appellants-R espondent Nos. 3 and 4 to the post of Upper Division Assistant made by order dat ed 31.12.2003. 3. The brief facts that will be noticed for the purpose of the pres ent adjudication may be enumerated herein below : The Respondent-writ petitioner joined service as a Lower Divisio n Assistant-cum-Typist in the office of the Government BDS, Deaf and Dumb School , Kahilipara to which post he was appointed by an order dated 16th June, 1982. T hereafter, the respondent-writ petitioner was transferred to a post of LDA in th e Directorate by order dated 21st December, 1984. The writ appellants i.e. Respo ndent Nos. 3 and 4 in the writ petition, were appointed in the post of Lower Div ision Assistant in the Directorate on 25.6.1982 and 22.3.1983 respectively. A gr adation list of incumbents in the cadre of Lower Division Assistants in the Dire ctorate of Social Welfare as on 1.1.2003 was published on 26th December, 2003 sh owing the appellants to be senior to the Respondent-writ petitioner. Aggrieved, the writ petition i.e. W.P.(C) No.2728 of 2006, out of which this appeal has ari sen, was instituted. 4. The learned Single Judge hearing the writ petition took the view that as the transfer of the Respondent-writ petitioner to the Directorate made by order dated 21.12.1984 was not at his request and, furthermore, as he had ren dered nearly 24 years of service in the Directorate, adequate protection should be afforded to him by taking into account the period of service rendered by him in the Government BDS, Deaf and Dumb School for computation of seniority. The da te of joining of the Respondent-writ petitioner in the Government BDS, Deaf and Dumb School being earlier to the date of joining of the appellants in the Direct orate, the learned Single Judge found fault with the seniority assigned by the i mpugned gradation list and thought it fit to dispose of the writ petition with t he directions already noticed. Aggrieved, the Respondent Nos. 3 and 4 in the wri t petition have instituted the present appeal. 5. The arguments advanced by the learned counsel for the parties be fore us would require the Court to consider the question as to whether the respo ndent-writ petitioner earlier to his transfer to the Directorate was holding a p ost equivalent to the post of L.D Assistant in the Directorate. This is the core question involved in the appeal as in the event the answer to the same is in th e affirmative, the entire period of service rendered by the respondent-writ peti tioner would be eligible for being taken into account for the purpose of computa tion of seniority. If, however, the answer to the said question is in the negati ve, the principle of law that would apply is well crystallized i.e. service rend ered in a lower post cannot be counted for the purpose of determination of senio rity in a higher post. 6. In Sub-Inspector Rooplal and another, Appellants -Versus- Lt. Go vernor through Chief Secretary, Delhi and others, reported in (2000) 1 SCC 644, cited at the Bar, the Apex Court while considering a similar question of determi nation of seniority of Sub-Inspector of Border Security Force who were absorbed in the Delhi Police, took the view that such equivalence has to be determined by taking into account the following factors :- (i) the nature and duties of a post; (ii) the responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged, (iii) the minimum qualifications, if any, prescribed for recruitment to the po st; and (iv) the salary of the post. The above view was expressed by the Apex Court in the context of the objection raised that the post of Sub-Inspector of Police in the Border Sec urity Force was not equivalent to the post of Sub-Inspector in Delhi Police in v iew of the difference in the pay scales of the two posts. 7. In the present case, a perusal of the pleadings in the writ peti tion as-well-as in the rejoinder affidavit do not indicate any statement or mate rial claiming equivalence of the two posts at the District Level and the Directo rate Level, on the basis of the parameters as laid down by the Apex Court. The o nly argument advanced is that the scale of pay at the Directorate level, which i s higher, will not be determinative of the issue. The aforesaid argument though correctly made cannot be a complete answer for resolution of the question at han d in the absence of any pleadings to show equivalence of the two posts on the ba sis of the judicially evolved parameters in Sub-Inspector Rooplal and another (s upra). 8. An argument has been made by the learned counsel for the respond ent-writ petitioner that under the provisions of the Assam Directorate Establish ments (Ministerial) Service Rules (Rule-9), Lower Division Assistants in the Dis trict Offices are also eligible for promotion to the higher post of Upper Divisi on Assistants in the Directorate level. The contention proceeds on incorrect pr emises. Under Rule-9 of the Assam Directorate Establishments (Ministerial) Servi ce Rules, appointments in the post of Upper Division Assistant is to be made fro m Lower Division Assistants of the service on the criteria of seniority-cum-meri t. However, Rule 9(2) contemplates selection, strictly on the basis of merit, fr om amongst the ministerial staff of the District Offices having the required len gth of service. Not only the two channels for promotion to the post of Upper Div ision Assistants in the Directorate are distinct and different, the criterion fo r promotion prescribed are also different - one essentially on the basis of seni ority and the other by selection on pure merit. The separate and distinct criter ia of promotion of Lower Division Assistants in the Directorate and District Off ices to the post of UDA in the Directorate leads substance to the view that the post of Lower Division Assistant in the District Offices is not at par or equiva lent with the same post in the Directorate level. 9. As already noticed by us, service rendered in a lower post canno t be counted for the purpose of determination of seniority in a higher post or c adre. The Respondent-writ petitioner having failed to demonstrate the equivalenc e of the posts of Lower Division Assistant in the Directorate and the District O ffices and, furthermore, the provisions of the Assam Directorate Establishments (Ministerial) Service Rules having indicated that the two posts are not equivale nt, we are of the view that the order dated 17.6.2008 passed by the learned Sing le Judge would require our interference. Accordingly, we allow this appeal and s et aside the order dated 17.6.2008 passed in W.P.(C) No.2728 of 2006. 10. We are informed at the Bar that pursuant to the order of the lea rned Single Judge, the respondent-writ petitioner has already been promoted to t he post of Lower Division Assistant with effect from the date of promotion of th e appellants to the said post. Evidently, the numbers of available posts in the cadre of Upper Division Assistants are sufficient to accommodate both the contes ting parties. In such an event, our interference with the order of the learned S ingle Judge shall not be construed to be an interference with the order of promo tion of the respondent-writ petitioner to the cadre of Upper Division Assistants and the present order will have effect only in re-fixing the inter-se-seniority of the contesting parties in the feeder cadre of Lower Division Assistants and in the cadre of Upper Division Assistants in which cadres both the parties are p resently placed.