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.

(4) UNFORTUNATELY, the learned trial Judge disposed of the writ application at the motion stage itself and thus evidently no opportunity was given to the appellants to file their affidavit-in-opposition. However, as admitted, the records have been produced and parties addressed the learned trial Judge at a great length, we shall dispose of this appeal on the basis of the materials on record. The learned trial Judge in his impugned judgment, inter alia, noted-"opposing the writ application on behalf of the respondents, Mr. Moni Bhusan Sarkar firstly submitted that the draft gradation list of Operating Assistants had been duly published on 2nd July, 1997, and objections had also been invited and that the objections which had been received till 31st October, 1997 were being processed.

(5) WE may proceed on the basis that at the time when the writ petition was disposed of, draft gradation list was not finalised. The writ-petition was filed on 17. 11. 97. A written test was to be held on 3. 11. 97. From the submissions of Mr. Sircar, as noticed hereinbefore, it would appear that draft gradation list was published on 2nd July, 1997 and objections have been invited. We, therefore, are not aware nor any materials have been placed before us to show that a final gradation list had been prepared as on the date of filing of the writ application. The very fact that at the time of hearing a submission was made to the effect that the objections received till 31st October, 1997 were being processed goes to show that a final gradation list had not been published. If a final gradation list had not been published and number of vacancies which are to be filled up in terms of the rules aforementioned was not notified, question of holding written examination at that stage did not arise.

(6) THE Rule seniority-cum-merit envisaged that a senior shall be promoted to the higher post subject to being found suitable to hold the said post. It is of course true that even a junior who is exceptionally meritorious which fact can be determined by adopting some rational criteria, may be promoted even on the basis of that rule, but there cannot any doubt whatsoever that seniority must be given preference. This aspect of the matter was first considered by the apex court in State of Mysore v. Syed Mahmood reported in AIR 1968 SC 1113 [LQ/SC/1968/60] which has subsequently been followed by the apex court and other High Courts in a number of decisions. In V. N. Rajans case (supra) the management had not framed any rule or standing order for promotion. However, in the instant case, such a rule has been framed which is to the following effect :

"induction level and qualification-Eligibility for appointment in the induction level post i. e. Operating Assistant-IME/lee with specific training for one year or more as may be fixed by the Corporation. Note I- 80% of the vacancies in Sr. Operating Assistant are to be filled up on seniority-cum-merit basis from amongst the deptt. 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. Addendum to Note I-Selection will be made on the basis of P. A. R. written objective test and/or interview through the appropriate Selection Committee. Remaining 20% of the vacancies in Sr. Operating Assistant are to be filled up by flare promotion provided specific experience of one year or above. Note II-For promotion from the post of Senior Operating Assistant to Special Operating Assistant 80% of the vacancies are to be filled up from departmental candidates on the basis of Performance Appraisal Report/written objective test and/or interview through the appropriate Selection Committee and remaining 20% of the vacancies be filled up by flare promotion. "

(7) IT has not been disputed before us by Mr. Sircar that the written test and interview are to be taken only for the purpose of judging the suitability of the candidate concerned to hold a higher post which according to the learned counsel, is required in view of the fact that the job is technical one. In A. K. Nigam and Ors. v. Sunil Misra and Anr. reported in 1994 Suppl (2) SCC 245, [LQ/SC/1994/553] the apex court was considering a different question. The question which arose for consideration in that case was as to whether seniority in IRPS was to be governed by the date of joining. The apex court pointed out that a different rule may be framed and in that situation, it was held, "it is open to the rule-making authority to take a note of the relevant circumstances obtaining in relation to each department and determine objectively the rules that should govern the inter se seniority and ranking. It is, however, necessary that there should be no discrimination. But if the promotees are being given weightage, the principles applicable to the members of the service should be kept in mind while determining the weightage to be given or while laying down rules for determining seniority. The dates of increment of the appellants in time-scale, as postulated by principle (i), having been specifically determined in accordance with principle (viii) (a) by the authorities before Respondent No. 1 joined service, he has to rank junior to the appellants. " Such is not the case at here. In Mahesh Kumar Agal v. Director General of Police and Anr. reported in 1996 (2) SCC 70 [LQ/SC/1995/1346] , the apex court in a very short judgment held that passing of examination in Hindi test may be made a criteria for promotion. We, keeping in view the aforementioned principle of law, although do not subscribe to the following views of this learned trial Judge:

"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 weightage to seniority is duly maintained. "

Held that as for the purpose of judging suitability in technical post a written test or an interview can be held, but even for that purpose a State within the meaning of Article 12 of the Constitution of India which the appellant No. 1 is, must lay down rational criteria which would fit in with the aforementioned rule.

(8) IN this view of the matter, we are of the opinion that the appellants are bound to follow seniority-cum-merit rule strictly and prior to grant of promotion, the final seniority list must be published. After a final seniority list is published and number of vacancies notified, in the event, the appellants intend to hold any test for the purpose of judging the suitability of the candidates concerned, they may do the same upon adopting a rational procedure in terms of the aforementioned promotional rules.

(9) MR. Sircar however, submits that various posts are lying vacant and that should be filled up as expeditiously as possible. We have no doubt in our mind that the appellant being a State within the meaning of Article 12 of the Constitution of India would act as model employer and take all such steps which is equally applicable to all the employees and make all attempts to fill up the said post as early as possible.

(10) FOR the foregoing reasons it is not necessary for us to go into the other question raised by the learned counsel for the parties before us, as in our opinion, this appeal can be disposed of only on the aforementioned question. This appeal is disposed of accordingly without any order as to costs. D. B. Dutta, J.-I agree. Appeal disposed of.