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DISTRICT: CACHAR

IN THE GUHATI HIGH COURT

(The High Court of Assam, Nagaland, Mizoram and
Arunachal Pradesh)
(CIVIIL EXTRAORDINARY WRIT JURISDICTION)

WP(C) No. /2023

To,

The Hon'ble Mr. Justice Sandeep Mehta., the Chief Justice

of the Hon'ble Gauhati High Court and His Lordships other
companion Justices of the said Hon'ble Court.

IN THE MATTER OF: -

An application under Article 226 of

Constitution of India for the issuance of a

writ in the nature of Certiorari and/or any

other appropriate Writ, Direction or Order of

like nature.
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-AND-

IN THE MATTER OF: -

Illegal and Arbitrary publication of merit

cum seniority list dated 31-07-2020 behind

the back of the petitioner by giving

retrospective seniority benefit with effect

from 01-03-2016 whiout anyproper

issuance of notice to the petitioner just to

provide the benefit of seniority for

promotion to the respondent No. 4 & 5 to

the next higher post viz upper division

Assistant in the Office of District Industries

& Commerce Centre, Cachar by depriving

the petitioners

-AND-

IN THE MATTER OF: -

Illegal and arbitrary process of promotion

to the post of Upper Division Assistant in

the Office of District Industries &

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Commerce Centre, Cachar in favor of

respondent No. 4 & 5 without finalizing

the seniority in the gradation list for

which W.P.C No. 2357/2022 pending

before this Hon’ble court

-AND-

IN THE MATTER OF: -

Violation of the provision of service Rule

initiated by the Govt of Assam

-AND-

IN THE MATTER OF: -

Violation of the Article 14, 16 and 21 of

the constitution of India.

-AND-

IN THE MATTER OF: -

Violation of principle of natural justice and

administrative fair play.

-AND-
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IN THE MATTER OF: -

Enforcement of fundamental right of the

petitioners warranted by the constitution

of India and other laws of land.

-AND-

IN THE MATTER OF: -

1. Dipesh Sharma. (35 years)

S/O- Lt. Ramji Sharma Residence of

village & P.O.- Meherpur, Kuwarpar

Silchar, Dist.- Cachar, Assam.

2. Zabed Barbhuiya (36 years)

S/O- Jalal Udin Barbhuyan

Residence of village- Paikan P.O.- Gumra,

Dist.- Cachar, Assam

........ Petitioners

-VERSUS-

1. The State of Assam to be represented

by the Secretary, to the Govt of Assam,

The Department of Industries ,

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Commerce and Public Enterprise Assam,

Dispur Guwahati-6

2. The Commissioner of Industries &

Commerce, Assam, Udyog Bhawan,

Bamunimaidan, Guwahati-22.

3. The General Manager

District Industries & Commerce Centre,

Silchar, District-Cachar, Assam.

4. Arif Hussain Choudhury

S/O- Lt. Fozlul Haque Choudhury

Residence of village- Snabarighat P.O.-

Snabarighat, Dist.- Cachar, Assam.PIN-

788013.

5. Minakshi Jidung

D/O- Shri Kalyan Jidung

Residence of village- Dhumkar, Chersi

P.O.- Borkhola, Dist.- Cachar, Assam.

PIN- 788110.

………. Respondents

The Humble Petition of the petitioner above named

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Most Respectfully Sheweth:-

1. That, the petitioners are citizen of India and are

permanent residence of the above mention addresses

under the state of Assam .As such they are entitled to all

the rights and privileges guaranteed under the

constitution of India and other laws of land. The cause

of action and relief sought in the instant writ petition is

of identical nature; Hence a single writ petition has been

filed before the Hon’ble court for appropriate relief .

2. That, the petitioners state that on 17-01-2016 the

respondent no. 3 issued an advertisement filling up for

the 02 (two) post of Junior Assistant in the office of

District Industries & Commerce Centre, Cachar Silchar.

Out of the two post, one post was reserve for Other

Backward Class, (OBC) candidate and 01 (one) for

Unreserved (UR) Candidate.

3. The petitioner No. 1 belongs to OBC category candidate

while the Petitioner No. 2 is a General catagory

Candidate i.e Unreserved (UR) and they have all

requisite qualification in terms of the aforesaid

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advertisement dated 17-01-2016 and they have

participated in the selection process by filling their

applications and they appeared in the written test on

10-02-2016 for the post of Junior assistant and the

petitioners were successfully clear the said written test

and qualified for computer and viva test.

Accordingly petitioners were selected and appointed

the petitioner by the Respondents No. 3 on 29-02-2016

as Junior Assistant in the establishment of District

Industries of Commerce Centre, Cachar, Silchar in the

scale of Pay Rs. 5,200/- to 20,200/- P.M (Pay Band – 2)

Plus other allowance as admissible from time to time. On

being appointed, the petitioners joined their services on

01-03-2016 and discharging their duty with the entire

satisfaction of all concerned.

A copy of result sheet of written test is

Annexed herein as Annexure – A

Copies of the appointment letter are

Annexed herein as Annexure- B.

4. That, the petitioners beg to states that the respondent

No. 2 issued another advertisement vide No.

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CI&C(III)Advertisement/1/2016/77 for filling up 2 (two)

nos of vacancies for Junior Assistant under the

establishment of respondent No. 3. In the said selection

process, the private respondents No. 4 & 5 had

participated and on being selected they were also

appointed as Junior Assistant on 29-02-2016. The

written examination of the respondents No. 4 & 5 was

conducted on 20-02-2016 and their computer test and

Viva test was conducted on 26-02-2016. The selection

process of the respondents No. 4 & 5 was initiated

separately as both the selection process was conducted

under two different advertisements and the written,

Computer and Viva test were also conducted separately.

However, the above facts of two different batch were

very much clear in the notice dated 26/29-02-2016

issued by the respondent No. 3.

A copy of the result of written test date

23-02-2016 in Annexed herein as

Annexure –C .

5. That, the petitioners beg to states that they are senior to

the private respondents No. 4 & 5 considering the fact

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that they were selected from a different batch in a

selection process which was held prior to the selection

process of the private respondents. The petitioners and

the private respondents both were selected in different

batch though petitioners and the private respondents

had joined the office of District Industries & Commerce

Centre Cachar Silchar on 01-03-2016. The petitioners

were selected on the basis of selection process which

was held prior to the selection process of the private

respondents i.e different batch of selection. Thus, the

petitioners are admittedly senior to the private

respondents since they were selected from a different

batch and the seniority of both the petitioners and

Respondent No. 4 & 5 are to be determine in batch wise.

However, the respondent No. 3 primarily without

following any process of seniority procedure prepared

the attendance register from March 2016 to April 2017

in which petitioner no 1 was on the top and petitioner no

-2 at serial 4 in the attendance register in respect of

petitioners and private respondent . Thereafter while

petitioners objected for above infirmity again prepared

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attendance register as per date of birth up to March

2022 by keeping petitioner no 2 on the top and

petitioner no 1 at serial no 3 of the attendance register

by considering the earlier batch of selection as well as

date of birth without any formal order. There after again

change the decision of fixing senirity without any

reasonable opportunity . The petitioners pray for

appropriate direction to the respondent No 3 for

production of attendance register of both the petitioners

and private respondents up to March 2022 for

authentication of the above facts.

6. Considering seniority of the employee sequence in the

attendance register was initially maintained by the

official respondents but subsequently it was came to the

notice of the petitioners that their names were placed in

the attendance register at Serial No. 3 & 4 where as

private respondents name were placed at serial No. 1 &

2, against aforesaid act, the petitioner No. 1 filed a

representation before the respondent No. 3 for

correction in the Employees Sequence Attendance

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register but the respondent No, 2 has not taken any

steps for correction of the same.

A copy of the representation 26-04-2021

is Annexed herein as Annexure – D.

7. That, the petitioners beg to state that the respondent no

3 in an illegal and arbitrary manner publish the

Provisional Gradation list for the fixation of seniority for

the post of Junior Assistant on 25-08-2021 against which

petitioners file their objection. However, the official

respondent did not adhere to the same and thereafter

published the final gradation list on 14-03-2022 against

which petitioners filed WPC No. 2357/2022 and this

honourable court please to issued notice on 01-04-2022

and accordingly all the respondent entered their

appearance by filing their response.

8. That the petitioners beg to state that the respondent no

3 without intimating anything to the petitioner prepared

seniority cum merit list dated 31-07-2020 just to deprive

the petitioners of the seniority position and given benefit

of seniority to the respondent no 4 & 5 who were

selected and appointed from the different batch. The

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petitioners came to know about the arbitrary/illegal

publication of the seniority cum merit list by giving

retrospective benefit w .e .f. 01-03-2016 only while the

respondents no 4 & 5 filed their Affidavit in opposition in

WPC No. 2357/2022 for which cause serious prejudice to

your petitioners. Accordingly petitioners filed the instant

writ petition for appropriate justice and further pray for

modification alteration / cancellation of the above illegal

Seniority cum Merit list Dated 31-07-2020. Otherwise

your petitioners will remain deprived from their legitimate

rights.

The copies of the illegal Seniority cum Merit

List Dated 31-07-2020 is Annexed here to as
Annexure – E to this affidavit
9. That the petitioners beg to state that the

advertisement dated 17/01/2016 was made for filling up

the vacancy of 2 nos of posts one from general category

and another from OBC. In the said advertisement

petitioners participated in the selection of written test on

10/02/2016 and computer test held on 24/02/16 which

was a complete deferent selection in which writ

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petitioner were selected in which final tabulation sheet

was published in which petitioner no.1 whose roll no was

093 who secured total Marks 69.65 while the petitioner

no 2 whose roll no was 048 who secured total Marks

81.65 .The Respondent no 3 & 4 participated in the

selection in terms of the advertisement dated

09/02/2016 against the vacancy occurred in 2016. The

respondent no 3 & 4 appeared in the written test dated

20/02/2016 and oral test held on 26/02/2016 in which

respondent no 3 & 4 were selected. The results of writ

petitioner and respondent no 3 & 4 were published in

two different dates in two different Mark sheet. The

petitioners collected the above two different tabulation

sheet through RTI application which evidently clear that

both the writ petitioner and respondents no 3 & 4

appeared in two different examination and different set

of question papers, Accordingly two select list was

published then how the official respondents can prepared

combined seniority cum merit list lists on the basis of

Marks obtained by the candidates in their two different

selection against two different advertisement . As such

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the above seniority cum merit list of petitioners and

respondents by fixing retrospective seniority is illegal,

arbitrary and liable to be interfere by this Hon’ble court.

10. That the details of two different tabulation lists

of petitioners and respondent no 3 & 4 are as under; -

Abstract of Petitioners tabulation sheets

SL No Roll no Marks Obtained Total

Marks

Written Computer Viva-

test practical voce/Oral
interview
2 048 53.75 19.50 8.40 81.65
4 093 38.75 20.10 10.80 69.65

Abstract of Respondent no 3 & 4 tabulation sheets

SL No Roll no Marks Obtained Total
Marks

Written Computer Viva-

test practical voce/Oral
interview
3 108 53.75 22.00 8.20 83.95
4 130 57.50 20.67 9.60 87.77
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Accordingly, to state that since there are two result

sheets of the interview for the above post of the petitioners as

well as respondent no. 3 & 4 are in different dates as well as

result of the said examination was declared in two different dates

i. e 24-02-2016 petitioners were selected while on 26-02-2016

while the respondent no. 3 & 4 were selected. However, the

respondent no.3 publish a notice on 26/29-02-2016 was issued

in a combined manner which cannot say that the select list was

published on the same date. It is pertinent to mention here that

all the tabulation sheets of 1 st phase and 2nd phase interview were

collected by the petitioner through RTI and the above facts were

never informed by the official respondents . The notice dated

26/27 Feb 2016 was issued by the respondent no. 3 will not

established that the interviews and selection of the petitioners

and the respondent no 4 & 5 are on the same footing and cannot

fixed the seniority on the basis of the marks obtained in two

different interview and selection.

The copies of the final mark sheet of the

petitioner (1st Phase) is Annexed here to

as Annexure – F to this affidavit.

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11. That the petitioners beg to state that authority only issued

appointment order of the petitioners as well as respondents no 4

& 5 on same date by the respondent no 3 are not a criteria for

fixation of seniority among the petitioners as well as respondent

no 4 & 5. As such petitioners challenging the above illegal fixation

of seniority i Seniority cum Merit list Dated 31-07-2020 over the

writ petitioners since the same is not sustainable in the eye of

law.

12. That the petitioners beg to state that the above seniority

list for promotion to the next higher post by fixing seniority for

the post of Upper Division Assistant in the office of the

respondent no 3 is out and out illegal and perverse .The above

Merit cum Seniority List Dated 31-07-2020 was prepared without

having any opinion of selection committee and just take into

account of marks of the interview of two different selection and

interviews by giving retrospective effect from 01-03-2016 which

is completely illegal. As such the above selection cum merit list

bad in law and liable to be interfere by this Honble court .

13. That the petitioners beg to state that the above seniority

list with retrospective effect is beyond the preview of respondent

no.3 unilaterally. There is no expert selection committee opinion

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while issuing the above illegal merit list dated 31-07-2020. The

writ petitioners have no knowledge about the preparation of the

above illegal merit cum seniority list dated 31-07-2020. The above

merit list came to knowledge of the petitioners only just after

filing the affidavit in opposition in W.P.( C) 2367/ 2022 by the

respondents no 3 , 4 & 5 for which the petitioners fall in doubt

that the respondent no 3 just to promote the respondent no 4

& 5 illegally publish the merit list. The above illegal merit cum

seniority list contains no official reference numbers and the same

was published behind the back of the writ petitioners at the

behest of respondent no. 4 & 5 just to deprive the writ petitioners

from the benefit of promotion to the next higher post. The above

illegal merit cum seniority list was prepared by the respondent no

3 prior to publication of provisional gradation list dated 25-08-

2021 as well as final gradation list dated 14-03-2022 for which

the writ petitioner did not get any opportunity to challenge the

above illegal merit cum seniority list dated 31-07-2020. As such

the above merit cum seniority list published by the respondent no.

3 unilaterally without any reasonable basis . As such the same is

arbitrary, illegal and in violation of Article 14 ,16 and 21 of the

constitution of India
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14. That the petitioners beg to state that all the actions of

responded no 3 in preparation of illegal merit cum seniority list

followed by publication of provisional and final gradation list

caused serious prejudice to the petitioner since the same have no

legal basis. The above so called merit cum seniority list was not

based on any correct relevant provisions of Law. The relevant

provisions of the Personnel Circulars of the Govt. of Assam

bearing O.M. No. ABP 51/63/1, Dated 05/02/64, (Handbook of

General Circular) Subject principles of fixation of seniority are

reproduce below: -

1. Appointments made through the Assam Public

Service Commission:-

(i) …………………………………………………………

(ii) If two persons appointed on the recommendation of

Assam Public Service Commission in two different

batches, then the person who was recommended in

the earlier batch should be considered senior to the

person who was recommended in the later batch.

2. …………………………………………………………

3. Appointment outside the purview of Assam Public

Service Commission: -
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(i) Seniority of Candidates selected in one batch

should be fixed according to merit list prepared

by the Appointing Authority/ Employment

Exchanges at the time of initial appointment, if

they join their appointments within 15 days. (if a

candidate is prevented from joining within this

period by circumstances of a public nature and

beyond his control the period may be extended

by appointing authority. In that case the date of

appointment will continue to govern seniority. If

the period is not so extended, the date of joining

will determine seniority).

Further In the office memorandum of Govt of India Ministry of

Personnel public grievance and pension Deptt of personnel and

Training dated 13- 08-2021 it was specifically mention that in

para 7(g) that “In case, where direct recruits or promotes, as the

case may be, belonging to two more selection/ panel approved for

promotion, join in the same year, then those who have been

appointed / joined as a result of earlier selection/panel would be

places senior in the seniority list to those been appointed/ joined

as a result of a subsequent selection / panel.

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15. The petitioner begs to state that fixation of seniority of the

deptt. of personal and training deptt. Govt of India for support of

the contention of the petitioners case . The above referred facts

are reproducing below “The seniority of direct recruit is in the

order of merit in which they are selected for appointment on the

recommendation of UPSC or other selecting authority. The

persons appointed as a result of earlier selection being senior to

those appointed on subsequent selection. O.M. No.

20011/1/2008-Estt.(D) dated 11.11.2010.” “The seniority of the

candidates will have determined as per date of

publication/announcement of result. The candidate of the result

announced earlier shall be senior to the candidate of the result

announced later”.

The copy of the Office Memorandum

Dated 13-08-2021 issued by the Ministry

of Personnel public grievance and pension

Deptt of personnel, Govt of India is

Annexed here to as Annexure – G

16. That the petitioners beg to state that the Govt of Assam is

very much specific in their Personnel Deptt Circular that the

seniority of the candidate should be fix in batch wise . The

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“Seniority of Candidates selected in one batch should be fixed

according to merit list prepared by the Appointing Authority/

Employment Exchanges at the time of initial appointment, if they

join their appointments within 15 days.” As such in the instant

case date of joining is not the factor since there is two batch of

selection ani interview” and the decision of the same facts were

already clarify by the GOI notification as well as State Govt.

17. That the petitioner already filed the Writ Petition challenging

the final Gradation list dated 14/03/2023 for the post of Office

Assistant in the Office of the Respondent No.3 of the above Writ

Petition. However, while filing the above Writ Petition

inadvertently did not challenge the above merit cum seniority and

now seeking appropriate relief in the above writ petition.

Otherwise your petitioners will be seriously prejudice.

18. That the petitioner begs to state that and submit that they

are serving in the department since the date of their initial

appointment and now illegally depriving from seniority benefit .

Therefore action of with-holding or not providing or denying the

legitimate seniority and other promotional benefits to the

petitioners is a violation of the Article 14, 16 and 21 as well as

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Article 300A of the Constitution of India.. Hence, it is fit case

where Your Lordships would be pleased to interfere and pass

appropriate order so that the petitioner may not be prejudiced.

19. That the petitioners beg to state that it is a fit case wherein

this Hon'ble Court in exercise of its extra ordinary power

conferred under Article 226 of the Constitution of India be

pleased to direct the respondent /authorities to take necessary

steps for fixation of seniority in correct manner after proper

verification of materils on records and as per law and other

retirement benefits to the petitioner.

20 . That the petitioner begs to state that the respondent no 3 is

now contemplating to promote the respondent no 4 & 5 without

finalising the dispute of seniority position of the petitioners. As

such for the ends of justice the respondent no 3 may be restrain

from any process of promotion to the next higher posts in his

office till finalisation of the senrity disputes of the petitioners and

further the respondentno 3 may be directed to reconsider the

seniority disputes of the petitioners and respondent no 4 & 5

after hearing the parties otherwise your petitioner s will suffer

irreparable loss and injuries .

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21.That there is no other efficacious, alternative remedy and the

remedy prayed for if granted would be just, proper and adequate.

22. That the petitioner demanded justice and the same have

been denied to the petitioner.

23.That this petition is made bona fide to secure ends of justice

Under the circumstances it is prayed that

your Lordships may be pleased to admit this

petition, call for the records, Issue Rule calling

upon the respondents to show cause as to why

the impugned Seniority cum Merit list Dated 31-

07-2020 issued by the Respondent no 3, The

General Manager, District Industries & Commerce

Centre, Silchar,Cachar and /or Why a direction

shall not be issued to the respondent no 3 for

review impugned Seniority cum Merit list Dated

31-07-2020 after hearing the parties n and/or

pass such further order and/or further Orders

may deem fit and proper.

And
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Pending disposal of the above writ petition

the Respondent no 3 may be restrain from any

process of promotion to the next higher posts of

UDA in his office till finalisation of the senrity

disputes of the petitioners.

And for this act of kindness your petitioner

shall remain ever pray.

AFFIDAVIT

I Zabed Barbhuiya (36 years) S/O- Jalal Udin Barbhuyan

Residence of village- Paikan P.O.- Gumra, service by profession

do hereby solemnly affirm and declare as follows-

1. That I am one of the petitioner in the instant petition. As such,

I am well acquainted with the facts and circumstances of the Case.

I am taking steps on my behalf and on behalf of other petitioner

which is being duly instructed and authorise by him. As such I am

competent to swearing this Affidavit.

2. That the statements made in this affidavit and those made in

paragraphs 1,2 & 3. are true to my knowledge, which I believe to

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be true and the rests are my humble submissions before this

Hon’ble Court.

“ON Oath”

I swear that this declaration is true and that to no part of its

false so help me God.

And I signed this affidavit on this the day of July /2023 at

Guwahati.

Identified by-

DISTRICT: CACHAR

IN THE GUHATI HIGH COURT

(The High Court of Assam, Nagaland, Mizoram and
Arunachal Pradesh)
(CIVIIL EXTRAORDINARY WRIT JURISDICTION)
I.A. (CIVIL) NO. 2023
IN
WP(C) No. 2367/2022

INDEX

Sl. No. Page No.

1. Petition
2. Affidavit
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Date- Filed by

Advocate