Arati Devi Vs the State of Assam and 6 Ors.

TEZPUR MECHANICAL CIRCLE (IRRIGATION) TEZPUR P.O. TEZPUR DIST. SONITPUR ASSAM PIN-784001 6:SMTI. CHAYANIKA GAYAN W/O PRANJAL PRATIM NATH C/O EXECUTIVE ENGINEER

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TEZPUR RANGAPARA DIVISION (IRRIGATION) P.O. TEZPUR DIST. SONITPUR ASSAM PIN-784001. 7:SRI SUDARSHAN BHUYAN C/O THE EXECUTIVE ENGINEER

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TEZPUR TEZPUR RANGAPARA DIVISION (IRRIGATION) TEZPUR P.O. TEZPUR DIST. SONITPUR ASSAM PIN-784001

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Advocate for the Petitioner : MR. M ISLAM,

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Advocate for the Respondent : SC, IRRIGATION, MR. R PHUKAN,MS D DUTTA(R-6),SC, FINANCE

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BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

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ORDER

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Date : 16-09-2025

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Page No.# 3/14

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Heard Mr. M. Islam, learned counsel for the petitioner. Also heard Mr. N. Upadhyay, learned standing counsel, Irrigation Department, Assam and Mr. R. Phukan, learned counsel for the respondent Nos. 6 and 7.

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The petitioner by way of instituting the present writ petition has assailed the orders dated 14-10-2022 and 06-05-2023 by which her claim for being assigned seniority position in the cadre of Junior Assistant in the establishment of the Superintending Engineer, Tezpur Mechanical Circle (Irrigation), Tezpur, came to be rejected.

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The facts requisite for adjudication of the issue arisen in the present petition, is noticed as under:

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As projected in the writ petition, the Superintending Engineer, Tezpur Mechanical Circle (Irrigation) had issued an advertisement dated 18-08-2013 inviting applications from the eligible candidates for recruitment against 02 (two) numbers of Gr-III post of Junior Assistant existing in his establishment. The petitioner, herein, being eligible in terms of the criteria set out in the said advertisement submitted her candidature for being considered for recruitment against the post advertised. In terms of the selection procedure set out in the advertisement, the petitioner had appeared in the written examination which was held on 12-01-2014. The petitioner having qualified in the said written examination, she was permitted to participate in the viva-voce segment, as well as the typewriting and the computer test so held.

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The petitioner in the writ petition has projected that in the written examination, she had scored 83 marks.

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Page No.# 4/14

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Thereafter, on conclusion of the selection process, the respondent authorities proceeded to appoint the respondent Nos. 6 and 7 against the vacant post of Junior Assistant so advertised and they accordingly, joined their respective services. The petitioner being aggrieved with the appointments affected in respect of the respondent Nos. 6 and 7, herein, and non-consideration of her case for such appointment, although she was placed in the selection process, on merit, above the said respondents, approached this Court assailing the appointment affected in respect of the respondent Nos. 6 and 7, herein, by way of instituting a writ petition being W.P.(C) No. 3904/2014. During the course of the said proceeding, a submission was made on behalf of the State respondents, that errors were found to exist in the evaluation of answer scripts of the petitioner, herein, in the written examination, which had resulted in her securing lower marks. It was also projected that steps were being taken to review the marks awarded to the petitioner and to rectify the error committed.

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The materials brought on record reveals that the respondent had carried out review in the matter on and such review being carried out, the petitioner having been found to be eligible for being appointed, the Selection Committee, proceeded to recommend her case for appointment against a vacant post in the establishment of the Superintending Engineer, Tezpur Mechanical Circle (Irrigation). In pursuance to the said recommendation made in favour of the petitioner, herein, by the Selection Committee, the Superintending Engineer, Tezpur Mechanical Circle (Irrigation) proceeded vide order 03-08-2015 to appoint the petitioner against the post of Junior Assistant in his establishment. The said appointment was so affected on prospective basis. The said appointment having been

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Page No.# 5/14

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affected, this Court proceeded to close the writ petition being W.P.(C) No. 3904/2014.

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The petitioner, thereafter, approached the respondent authority praying for assigning to her seniority position above the respondent Nos. 6 and 7, on the basis of the inter se merit position obtained by them in the connected selection process. The said prayer of the petitioner, having been rejected by the impugned communications dated 1410-2022 and 06-05-2023, the present writ petition came to be instituted.

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Mr. Islam, learned counsel for the petitioner by reiterating the facts noticed, hereinabove, had submitted that the information and documents received by the petitioner would go to reveal that the petitioner in the written examination, held in pursuance to the advertisement dated 18-08-2013, had secured 83 marks, however, the Selection Committee constituted for the purpose had reduced the said marks to 76. He submits that with the reduced marks in the written examination, the petitioner secured overall 77.9 marks in the selection process. The respondent No. 7 secured 78.6 while the respondent No. 6 had secured 78.3. Basing on the said marks secured by the petitioner, as well as the respondent Nos. 6 and 7, the respondent authorities proceeded to appoint respondent Nos. 6 and 7 against the advertised post of Junior Assistant by way of issuance of the appointment orders both dated 08-08-2014.

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Mr. Islam submits that in terms of the undertaking given before this Court in W.P.

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(C) No. 3904/2014, the respondent authorities had proceeded to review the selection process and therein had arrived at a conclusion that the Selection Committee was not empowered to re-evaluate the answer scripts, inasmuch as, the Selection Committee members were not experts in the matter. He submits that basing on the said conclusion,

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Page No.# 6/14

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the Selection Committee reviewed the selection of the petitioner and by expunging the reevaluation made of the answer scripts of the petitioner, it being found that the petitioner was within the merit position for appointment against the vacancies advertised, proceeded to recommend the case of the petitioner for appointment against any resultant vacancy in the establishment of the Superintending Engineer, Tezpur Mechanical Circle (Irrigation). Mr. Islam submits that the petitioner as well as the respondent Nos. 6 and 7 having been appointed from the same selection process and the petitioner, now, after review of the selection, being found to be placed at Sl. No. 1 on merits, the petitioner was required to be assigned seniority position above the respondent Nos. 6 and 7 in terms of the provision of the Assam Ministerial District Establishment Services Rules, 1967 (in short the “Rules of 1967”). Mr. Islam has submitted that the petitioner was deprived of due appointment only on account of the action, on the part of the Selection Committee originally constituted in the matter, in reducing the marks scored by the petitioner in her written examination. He submits that the Selection Committee on review having found the said reduction to be untenable, the original marks secured by the petitioner being restored, adding the marks scored by her in the other segments of selection process, the petitioner admittedly was placed at Sl. No. 1, in the merit list so prepared. Accordingly, he submits that although the petitioner was appointed subsequent to the appointment affected in respect of the respondent Nos. 6 and 7, the said appointment of the petitioner on 03-08-2015 was required to be made effective w.e.f. the date the appointment so affected to the respondent Nos. 6 and 7, by granting notional benefit to the petitioner along with assigning to her seniority position in the cadre of Junior Assistant above that of

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Page No.# 7/14

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respondent Nos. 6 and 7.

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Mr. Islam in the above premises, submits that this Court would be pleased to direct the respondent authorities to assign to the petitioner, herein, seniority position above the respondent Nos. 6 and 7 and also to fix the pay and allowances of the petitioner in the post of Junior Assistant, in pursuance to her order of appointment dated 03-08-2015, by notionally fixing the same w.e.f. the date the respondent Nos. 6 and 7, were so appointed.

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Per contra, Mr. N. Upadhyay, learned standing counsel, Irrigation Department, Assam has submitted that this Court in the proceedings W.P.(C) No. 3904/2014 had not passed any direction requiring the respondents to appoint the petitioner, herein, with retrospective effect, i.e. w.e.f. the date the respondent No. 6 and 7 were so appointed. He submits that the petitioner being so appointed against a resultant vacancy subsequently arising in the establishment of the respondent No. 5, the petitioner having not challenged the order of appointment issued to her in the matter with prospective effect, the petitioner would not be entitled to claim retrospective benefit even notionally for the purpose of fixing her pay and allowances, w.e.f. the date the respondent Nos. 6 and 7 were so appointed. Accordingly, he submits that the claims made by the petitioner in the present writ petition, would not mandate an acceptance.

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Mr. R. Phukan, learned counsel appearing for the respondent Nos. 6 and 7 has adopted the submissions made by Mr. N. Upadhyay in the matter and has submitted that the respondent Nos. 6 and 7 having joined their respective services prior to the appointment of the petitioner, herein, the petitioner in any view of the matter cannot be

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Page No.# 8/14

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granted seniority above the respondent Nos. 6 and 7.

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I have heard the learned counsel for the parties and also perused the materials available on record.

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The facts as noticed, herein, are not disputed. The petitioner in the written examination, held in pursuance to the advertisement dated 18-08-2013 had admittedly secured 83 marks. Thereafter, the petitioner had participated in the further stages of the selection process. It is found that the Selection Committee as constituted in the matter, during the viva-voce segment of the said selection process, reduced the marks secured by the petitioner in the written examination from 83 to 76. The marks of the petitioner being so reduced, adding marks scored by her in the other segments of the selection process, the petitioner on merits was found to be placed below the respondent Nos. 6 and 7. Accordingly, the respondent Nos. 6 and 7 came to be appointed against the 02 (two) advertised vacant posts of Junior Assistant in the establishment of the respondent No. 5, vide issuance of order dated 08-08-2014.

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Being aggrieved, the petitioner had approached this Court by way of instituting a writ petition, being W.P.(C) No. 3904/2014. During the proceeding of the said writ petition, the respondent authorities, had projected before this Court that errors came to be noticed in the assessment of the answer scripts of the petitioner in the written examination segment of the selection process, which had resulted in her securing low marks. Accordingly, it was projected that the steps were being taken to review the marks awarded to the petitioner and rectify the error committed. In terms of the undertaking made before this Court by the respondent authorities, it is seen that a Review Selection

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Page No.# 9/14

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Committee was constituted in the matter. The Review Selection Committee as constituted, in its meeting held on 26-02-2015, in the office of the respondent No. 5 had considered the matter. On consideration of the matter, an issue was framed as to whether Selection Committee had the power to re-evaluate the answer scripts. Upon consideration of the said issue, the Review Selection Committee concluded that the Selection Committee did not have the power to re-evaluate the answer scripts, inasmuch as, the Members of the Committee were not experts in the matter. The Review Selection Committee also questioned the manner in which the re-evaluation was carried out in respect of the petitioner. Having drawn the said conclusion, the Review Selection Committee decided to review the matter and expunge the re-evaluated marks of the petitioner, herein, thereby, restoring the original marks scored by her in the written examination segment of the selection process. On such, restoration of the original marks of the petitioner, she having been found to come within the merit position mandating her appointment against the advertised vacant post of Junior Assistant, the Selection Committee proceeded to recommend the case of the petitioner for appointment against a resultant vacant post available in the establishment of the respondent No. 5. Basing on the recommendation of the Review Selection Committee, it is seen that the respondent No. 5 vide order dated 0308-2015 proceeded to appoint the petitioner, herein, against the post of Junior Assistant. However, such appointment of the petitioner was so made with prospective effect. The petitioner having prayed before the authorities for affecting her appointment with retrospective effect and also for assignment of the seniority above the respondent Nos. 6 and 7, the respondent No. 5 while forwarding the representation of the petitioner to the

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Page No.# 10/14

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Chief Engineer, Irrigation Department vide communication dated 14-10-2022 had opined that the petitioner, herein, having joined as Junior Assistant in his establishment only on 13-08-2015, she would be entitled to all benefits, only w.e.f. the date of her joining. The Chief Engineer, Irrigation Department, Assam basing on the projection made by the respondent No. 5 in the communication dated 14-10-2022 proceeded vide communication dated 05-05-2023, to inform the petitioner that she would be entitled to salary and other benefits only from the date of joining of her service.

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The above discussion would bring to the forefront the petitioner, herein, along with the respondent Nos. 6 and 7, were so selected for appointment in pursuance to the same selection process. Applying the original marks secured by the petitioner in her written examination and thereafter, considering the marks secured by her in the other segments of the selection process, it is found that the petitioner would be placed at Sl. No. 1 in the merit list so prepared, followed by the respondent Nos. 7 and 6, respectively.

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The recruitment to the post of Junior Assistant as existing in the establishment of the respondent No. 5 is governed by the provisions of the Rules of 1967. The Rule 11 of the said Rules of 1967, mandate that seniority in the cadre of Junior Assistant, when more than one persons are appointed on the same date, shall be determined according to their position in the merit list. In the case in hand, admittedly, the petitioner, herein, had not joined on the same date as that to the respondent Nos. 6 and 7. The petitioner, herein, is not at fault for not being facilitated to join against the post of Junior Assistant as advertised vide advertisement dated 18-08-2013, along with the respondent No. 7 or 6, inasmuch as, the same was on account of an illegality committed in the matter by the

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Page No.# 11/14

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Selection Committee in reducing the marks secured by the petitioner in her written examination. The respondent authorities, by constituting Review Selection Committee having reviewed the said position and having found that the petitioner was entitled to the original marks secured by her in the written examination, the same would also mandate a recasting of the merit list prepared in the matter. On a recasting of the merit list, as noticed hereinabove, it is the petitioner who would be placed on merit above the respondent Nos. 6 and 7. Accordingly, although the petitioner, herein, was appointed subsequent to the appointment affected in respect of the respondent Nos. 6 and 7, her such appointment being from the same selection process and she be placed therein above respondent Nos. 6 and 7, the petitioner’s appointment although affected subsequently, must be given retrospective effect at least notionally. This Court also notices that only 02 (two) posts having been advertised, the petitioner after being found to be entitled for being appointed in terms of the recommendations of the Review Selection Committee, the said appointment ought to have been effected by cancelling the appointment as effected in the case of the respondent No. 6, inasmuch as, the petitioner is now found to be placed at Sl. No. 1 on merits and the respondent No. 6 would now be placed at Sl. No. 3 and the same would take him out of the purview of the selection process. However, the appointment of the respondent No. 6 having been continuing for a long period of time, this Court is of the view that the petitioner, also being favoured with an appointment, subsequently, a interference with the appointment of the respondent No. 6 would not be called for at this stage. However, the respondent Nos. 6 & 7 would not be entitled to claim seniority position above the petitioner, herein.

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Page No.# 12/14

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In view of the said conclusions drawn by this Court, it is held that the petitioner, herein, would be entitled to have her appointment against the post of Junior Assistant in the establishment of the respondent No. 5 affected vide order dated 03-08-2015 to be reckoned with retrospective effect, i.e. w.e.f. the date the respondent Nos. 6 and 7, herein, were so approved. Accordingly, the pay and allowances of the petitioner would be required to be recast and fixed by reckoning notionally the same w.e.f. the date the respondent Nos. 6 and 7 were so appointed.

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The Court having held that the petitioner’s appointment against the post of Junior Assistant, as affected vide order dated 03-08-2015, is mandated to be given retrospective effect, the petitioner, the respondent Nos. 6 and the respondent No. 7 would now have to be deemed to have been appointed on the same date. Having held that the petitioner, herein, would also be entitled to be deemed to have been appointed from the same date as that of the respondent Nos. 6 and 7, applying the provisions of Rule 11 of the said

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Rules of 1967, the petitioner, herein, would now be required to be assigned seniority position above the respondent Nos. 6 and 7 in the cadre of Junior Assistant in the establishment of the respondent No. 5.

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In view of the above discussions, this Court passes the following directions:

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(a) The respondent authorities shall grant retrospective effect to the appointment of the petitioner, herein, as Junior Assistant affected vide order dated 03-08-2015, i.e. w.e.f. the date the respondent Nos. 6 and 7 were so appointed from the same selection process against the post of Junior Assistant in the establishment of the respondent No. 5.

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Page No.# 13/14

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(b) The pay and allowances of the petitioner on the date of her appointment as Junior Assistant shall now be re-fixed by reckoning her appointment to have been so affected with retrospective affect, i.e. w.e.f. the date the respondent Nos. 6 and 7 has been so appointed.

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(c) However, the petitioner would not be entitled to any arrears of pay on grant of such retrospective effect to her appointment affected on 03-08-2015. The pay and allowances of the petitioner shall be notionally calculated and fixed on the date she had so joined in pursuance of the order dated 03-08-2015.

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(d) The petitioner shall be released the arrears of pay as accrued to her w.e.f. the date of her joining service, on grant of retrospective affect to her appointment against the post of Junior Assistant in the establishment of the respondent No. 5.

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(e) The petitioner shall be deemed to be senior to the respondent Nos. 6 and 7 by virtue of the fact that the merit position obtained by her in the selection process, is above the respondent Nos. 6 and 7.

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The directions passed hereinabove shall be complied with along with release to the petitioner of her arrears of pay and allowances and also issuance of order assigning to her seniority position above the respondent Nos. 6 and 7, within a period of 02 (two) months from the date of receipt of a certified copy of this order.

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With the above observations and directions, this writ petition stands disposed of.

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JUDGE

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Page No.# 14/14

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Comparing Assistant

Arati Devi v. the State of Assam and 6 Ors.

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Arati Devi v. the State of Assam and 6 Ors.

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