S.B.Sinha, J. - (1.) This appeal is directed against a judgment and order dated 17.12.97 passed by a learned Single Judge of this Court in W.P. 26643(W) of 1997, whereby and whereunder the said learned Judge disposed of the writ application filed by the writ-petitioners-respondents with certain directions. The writ-petitioners who were fifty-seven in number, filed the aforementioned writ application, claiming inter alia, for the following reliefs : "(a) Show cause why a writ of and/or in the nature of mandamus should not be issued commanding the respondents their men, agents, servants and subordinates not to hold the written test on the basis of the purported notice for selecting the candidates for grant of promotion for the post of Senior Operating Assistant as same is contrary to the provision of the promotion and recruitment rules framed by the respondents; (b) A writ of and/or in the nature of mandamus be issued commanding the respondents their men, agents, servants and subordinates not to take any steps or further steps to hold written test of the Operating Assistant or selecting candidates to grant promotion in the post of Senior Operating Assistant as holding of written test is contrary to the provision of promotion rules framed by the authority and further direct them to prepare a Gradation list on the basis of the Seniority and grant promotion relying upon the Seniority as the promotion in the post of Senior Operating Assistant should be made on the basis of the seniority-cum-merit as per recruitment rules framed by the said Government."
(2.) The basic fact of the matter is not in dispute. The aforementioned writ application was filed on the ground that despite the fact that the respondents had adopted a policy decision to fill up 80% of the vacancy in Senior Operating Assistant by way of promotion on seniority-cum-merit basis from amongst the departmental candidates having passed LME/LEE/B.Sc. with specific training/experience not less than one year or above as may be fixed by the Corporation was not justified in fixing a date for holding written examination and interview before publishing a final gradation list. The learned trial Judge upon taking into consideration various decisions of the apex court as also Kerala High Court, inter alia, has held that the rule being seniority-cum-merit, it was obligatory on the part of the respondents to follow the said rules strictly. It was held, "Admittedly, in terms of the Regulations framed by the Corporation, the basis of granting promotion in respect of 80% of the vacancies in the post of Senior Operating Assistant from amongst departmental candidates is seniority-cum-merit, which means that in the merit test, he does not come within the zone of consideration for promotion, thus reducing the procedure for promotion to a process of selection or in other words, merit-cum-seniority. When seniority-cum-merit is the criteria for promotion, it is understood and accepted that seniority will be the determining factor and not merit and the procedure should be drawn up in such a way so as to fulfil such intention. Normally, points are separately awarded for seniority and for merit and are then added together for preparing the select list. There is no reason as to why such a procedure or a procedure similar thereto should not be followed by the respondents in preparing the select list for promotion to the prescribed quota of vacancies in the post of Senior Operating Assistant on the basis of seniority-cum-merit. The holding of a written test/interview/consideration of the P.A.Rs for the three preceding years can always be fitted in for satisfying the requirement of merit in such a way so that more weight age to seniority is duly maintained."
(3.) Mr. Sircar, learned counsel appearing on behalf of the appellant submits that before the learned trial Judge a seniority list was produced and inspection thereof had been given to Mr. Das, learned counsel appearing on behalf of the writ-petitioner-respondents. According to the learned counsel, the appellants cannot be said to have exceeded their jurisdiction in directing holding of the written test or interview for the purpose of finding out counsel appearing on behalf of the writ-petitioner-respondents on the other hand, submitted that from a perusal of the judgment under appeal it would appear that the learned counsel appearing on behalf of the appellants had conceded that a draft seniority list has been published and steps were being taken for finalisation thereof upon consideration of the objections which have been received till 31st October, 1997. In this situation, Mr. Das contends that the appellants were not justified either in terms of their policy decision or in law in directing holding of the examination without finalising the seniority list and without disclosing the number of vacancies to be filled up. In support of his aforementioned contentions, reliance has been placed on a judgment of a learned single Judge of Kerala High Court in V.N. Rajan v. Hindusthan News Print Limited reported in 1997 Lab IC 2757.;