WP(C) 4158/2004 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA The challenge made in this writ petition is the promotion of the respond ent No. 4 as Superintendent effected in 2003. Further challenge made in this wri t petition is the gradation list of 1992 of Upper Division Assistant (UDA). 2. The brief facts leading to filing of the instant writ petition are that the petitioner, a Graduate in Arts was appointed as Lower Division Assistant (L DA) in the office of the Inspector of Schools, Tezpur on 20.10.75. He was confir med in service/post on 20.10.80. As against the said position of the petitioner, the respondent No. 4 was appointed as LDA in the office of the Deputy Commissi oner, Tezpur on 20.11.76. It is the case of the petitioner that since the respon dent No. 4 is only matriculate, he is not qualified to be promoted as UDA/ Super intendent. In this connection, the petitioner has referred to the provisions of Assam Directorate Establishment (Ministerial) Service Rules, 1973. Rule 12 lays down the Educational qualification for the post of LDA as Higher Secondary Exam ination passed. Rule 9 dealing with the appointment to the post of UDA by way o f promotion, provides that the same is on the basis of seniority-cum-merit from amongst the LDA of the service and by selection strictly on the basis of merit from amongst the ministerial staff of the District offices having at their credi t not less than two years of continuous service as UDA. 3. As against the aforesaid position in 1973 Rules, both the petitioner and the respondent No. 4 were appointed as per the provisions of the Assam Minister ial District Establishment Rules, 1967. Further, like that of 1973 Rules, 1967 R ules also provided Higher Secondary Examination pass as the qualification for ap pointment as LDA. It is the case of the petitioner that, both the incumbents wit h their promotion to the post of UDA in another establishment came to be governe d by 1973 Rules. Rule 8 of the 1973 Rules provides for appointment to the post o f Superintendent by promotion on the basis of seniority-cum-merit from amongst U DA of the service who have rendered not less than 7 years of service as UDA. Rul e 19 provides for maintaining inter se seniority both for the post of Superinte ndent and UDA according to the order of preference/selection made by the appoint ing authority subject to the condition that the promotees join the post within 1 5 days. However, in case a candidate is prevented from joining within 15 days, if the period is not so extended, seniority shall be determined according to the date of joining. 4. The selection for promotion to the post of UDA was held on 15.11.86 foll owed by interview held on 21.01.87 in which both the petitioner and the responde nt No. 4 alongwith others appeared. While the petitioner occupied 1st position, the respondent No. 4 occupied 7th position in the merit list. Since the petition er did not fulfill the criteria laid down in Rule 9 (2) which is 2 years continu ous service as UDA as ministerial staff of District offices, the petitioner coul d not be promoted immediately. However, he was promoted by order dated 29.10.87 in relaxation of the rules requiring the said two years of continuous service. O n the other hand, the respondent No. 4 was promoted immediately after the select ion on 07.02.87. Thus going by the dates of promotion as UDA, the respondent No. 4 is admittedly senior to the petitioner. The petitioner accepted the position and continued to serve as UDA. 5. The gradation list of UDA was published and circulated in 1992 vide noti fication dated 25.09.92 (Annexure-E) in which the petitioner was shown at serial No. 3 while the respondent No. 4 was shown at serial No. 1. It appears that the petitioner did not make any grievance against the same and the gradation list a ttained its finality. According to the petitioner he came to know that the post of Superintendent in the office of the Commissioner, NAD, Tezpur was lying vacan t since September/2002. Since he was serving as UDA for more than 15 years and h ad the requisite experience, he made representation dated 13.05.03 requesting th e competent authority to consider his case for promotion to the post of Superint endent. However, it was the respondent No. 4 who was promoted to the post by the impugned notification dated 01.10.03 (Annexure-J). Being aggrieved and his appe al having not been disposed of, the petitioner has approached this Court making the prayers for setting aside and quashing of the aforesaid gradation list and t he order of promotion. 6. As against the aforesaid stand of the petitioner, the respondents both o fficial and private, have justified the action of the authority in preparing the gradation list and granting the promotion to the respondent No. 4. According to them at the time of entering into service, the respondent No. 4 was governed by the aforesaid Rules of 1967. Although the qualification for the post of LDA was prescribed as HSSLC passed, it appears that there was general relaxation in res pect of such qualification and matriculation was fixed to be the minimum educati onal qualification instead of Higher Secondary Examination passed for entry in the District offices. Subsequently, 1967 Rules were also amended by notification dated 17.03.94 in terms of which matriculation was held to be the prescribed qu alification for appointment as LDA. Thus it cannot be said that the respondent No. 4 was not qualified to hold the post of LDA at the time of entering into se rvice way back in 1976. 7. There is no dispute that 1973 Rules was not applicable to the petitione r when he was first appointed as LDA. Subsequently his service was confirmed in the office of the Commissioner, North Assam Division, Tezpur vide office order d ated 07.01.94 under whom he earned his promotion as UDA prior in point of time t han the petitioner about which discussions have been made above. While the respo ndent No. 4 was promoted as UDA w.e.f. 07.02.87, the petitioner was promoted as such w.e.f. 29.10.87. He was so promoted relaxing the requirement of Rule 9(2) o f the 1973 Rules in terms of which the incumbent has to have two years of conti nuous service as UDA in the District offices. Admittedly the petitioner did not have the said service to his credit. Consequently, he could not have been invite d for selection. However, he was invited and although was selected, could not be appointed in view of the embargo under Rule 9 (2) of the Rules. It was only aft er his selection, Rule 9(2) was relaxed and he was appointed as UDA after more than 8 months of promotion of the respondent No. 4. 8. The case of the petitioner does not come within the purview of proviso t o Rule 19 (7) of the 1973 Rules. It is true that as per the provision of Rule 19 (3) (4), inter se seniority is to be maintained as per the merit positions obta ined in the select list, but the same is subject to the condition that the incum bent joins the post within 15 days relaxable by another 15 days. Such relaxation can be only on the grounds/reasons beyond the control of the incumbent. Same w as not the case with the petitioner. Although he was selected, but could not be appointed due to lack of two years of continuous service to his credit as UDA in the District offices. Thus he was not even qualified to be called for the sel ection/ interview. However, he was allowed to sit in the selection in which he q ualified. It was only after relaxation extended to him he could be appointed in October, 1987 as against the appointment of the respondent No. 4 in February, 19 87. There is nothing to show that any further relaxation was provided to the pet itioner in the matter of joining the post of UDA. If that be so, by operation of the proviso of Rule 19 (7) also he became junior to the respondent No. 4. As pe r the proviso if the period of joining is not extended, the seniority shall be d etermined according to the date of joining. The period of joining was never ext ended for the petitioner and thus upon his joining the post of UDA in October, 1987, he was entitled to count his seniority only from October, 1987 and not fro m any earlier point of time. 9. The above position now leads us to the issue raised by the petitioner ab out the purported lack of educational qualification on the part of the responden t No. 4. As noted above, he was qualified but to hold the post of LDA at the ti me of initial entry into service. His service was borrowed to the office of the Commissioner where he duly earned his promotion as UDA in the year 1987. At that point of time the petitioner never raised any grievance against his promotion. Their inter se seniority got finalized with the issuance of 1992 gradation list to which also there was no grievance on the part of the petitioner. Now after 12 years of publication of the gradation list and 16 years of promotion of the res pondent No. 4 as UDA, the petitioner has filed this writ petition with the griev ance that the respondent No. 4 has been further promoted to the post of Superin tendent. While making the challenge to the promotion order of the respondent No. 4 as Superintendent effected by Annexure-J order dated 01.10.03, the petitione r has also collaterally challenged the gradation list of 1992 and has also quest ioned the promotion of the respondent No. 4 as UDA w.e.f. 07.02.87 which in my c onsidered view is not at all admissible at such a distant date and that too with out any explanation as to the delay in making the challenge. 10. As noted above, the respondent No. 4 was qualified to hold the post LDA at the time of initial entry to the service under the 1967 Rules which was furth er amended in 1994 prescribing the educational qualification for the post of LDA alternatively as HSLC passed. Prior to that there was general relaxation exten ded to the matriculates. After entering into the service, the respondent No. 4 was inducted to the Office of Commissioner where he earned his promotion as UD A and thereafter as Superintendent. It will be too much to say that since the pe titioner was inducted to the office of the Commissioner and was governed by 1973 Rules, he was not qualified to hold the post of UDA and consequently the post o f Superintendent. It is not the case in which the petitioner volunteered for his service in the office of the Commissioner, rather he was inducted there by way of borrowing his service. In such a situation, it will be against the interest o f justice to hold that the respondent No. 4 was not qualified to hold the post o f UDA and consequently the post of Superintendent. 11. Apart from the above, there is also no explanation about the delay and l atches on the part of the petitioner in approaching this Court. He has questione d the very promotion of the respondent No. 4 as UDA effected in February, 1987 by filing the writ petition in the year 2004. He has also questioned the gradat ion list published in 1992. Apart from such delay on his part, the collateral ch allenge made to the gradation list of 1992 and the question being raised in resp ect of promotion of the respondent No. 4 as UDA way back in 1987 while making th e challenge to his promotion as Superintendent cannot be gone into in this petit ion. 12. As regards the promotion of the respondent No. 4 as Superintendent, it is on record that the cases of all the incumbents including the petitioner was c onsidered by duly constituted selection committee. The selection committee recom mended the respondent No. 4 for promotion acting on which the appointing author ity appointed him as the Superintendent. Thus, it is not the case of non-consid eration of the case of the petitioner. His case was also considered alongwith th e respondent No. 4 and the selection committee found the respondent No. 4 more s uitable and accordingly recommended him for promotion as Superintendent. The res pondent No. 4 is also senior to the petitioner in the cadre of UDA. Thus, there is no infirmity in promoting him. 13. For the aforesaid reason, I do not find merit in the writ petition and a ccordingly it is dismissed. However, there shall be no order as to costs.