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1999 DIGILAW 309 (GAU)

Ashit Kumar Dutta Gupta v. State of Tripura

1999-09-09

A.K.PATNAIK

body1999
The petitioner was appointed to officiate as Revenue Inspector by order dated 23.6.71 passed by the District Magistrate and Collector, South Tripura. Pursuant to the said order of appointment, the petitioner joined as Revenue Inspector on 2.7.71. He was, however, terminated from service with effect from 1.1.74 pursuant to a Radiogram Message dated 2.1.74 received from the District Magistrate and Collector, West Tripura. Thereafter, by order dated 11.6.75, the petitioner was again appointed as Revenue Inspector by the District Magistrate and Collector, South Tripura. Since there was break in the service of petitioner which affected his seniority, the petitioner moved this Court in a writ application numbered as Civil Rule No. 174 of 1982 and by judgment and order dated 8.12.82, a Division Bench of this Court disposed of the said civil rule with the direction to the State Govt to dispose of the representations of the petitioner dated 11.8.81 and 8.3.82 relating to his seniority and other benefits. When the petitioner was not a granted any relief, the petitioner again moved this Court in another writ application in Civil Rule No. 50 of 1983 and by judgment dated 5.5.92, a Division Bench of this Court while quashing the earlier order of termination of service of the petitioner, directed that the petitioner shall be deemed to be in service since 23.6.71 and shall be entitled to get all service benefits. Pursuant to the said judgment and order dated 5.5.92, the District Magistrate and Collector, West Tripura, passed an order dated 26.8.93 to the effect that the seniority of the petitioner as Revenue Inspector was fixed with effect from 2.7.71. By the said order dated 26.8.93, the petitioner was placed above Shri Kumud Bihari Paul Choudhury and below Shri Kalipada Shy am in the seniority list of Revenue inspector under the District Administration of West Tripura, Agartala. In the meanwhile, however, the respondent No. 4, Shri Narayan Majumdar, was promoted and appointed to Tripura Civil Service Grade II. in consultation with the Tripura Public Service Commission in the year 1989 and the respondent No. 5, Shri Bimal Chandra Roy, was promoted and appointed to the Tripura Civil Service Grade II in the year 1991. The said promotions of the respondent Nos 4 and 5 were considered and effected on the basis of seniority list of Revenue Inspectors working under the , District Administration of West Tripura District published in November, 1980. The said promotions of the respondent Nos 4 and 5 were considered and effected on the basis of seniority list of Revenue Inspectors working under the , District Administration of West Tripura District published in November, 1980. In the said seniority list, the respondent No. 4 has been shown against serial No. 2 and against those appointed as Revenue Inspectors on initial constitution. In the said seniority list respondent No. 5, Shri Bimal Chandra Roy, has been shown against serial No. 8 and against those appointed as Revenue Inspectors on initial constitution. The petitioner, on the other hand, has been shown in the said seniority list against serial No. 25 and against those appointed after initial constitution by way of transfer, promotion, direct recruitment. Aggrieved, the petitioner has filed this, writ application under Article 226 of the Constitution praying for a direction on the respondent Nos 1,2 and 3 to re-fix the seniority of the petitioner above the respondent Nos 4 and 5 and for a direction on the respondent Nos 1, 2 and 3 to consider the case of the petitioner for promotion to Tripura Civil Service Grade II on the basis of such re-fixation of seniority. 2. During the pendency of the writ Application, however, the petitioner was promoted to Tripura Civil Service Grade n in the year 1997. Hence the questions that require determination in the writ application is as to whether the petitioner is senior to the respondent Nos 4 and 5 as Revenue Inspector and, if so, the consequential service benefits that are to be granted to the petitioner. 3. Mr. KN Bhattacharjee, learned counsel for the petitioner, submitted that in the seniority list published in November, 1980, by the District Magistrate and Collector, West Tripura, the respondent Nos 4 and 5 had been shown as initial recruits to the cadre of Revenue Inspector, but actually they are not appointed as initial recruits. He explained that under the Recruitment Rules for the posts of Revenue Inspector in District Administration framed under the proviso to Article 309 of the Constitution by notification dated 19.11.78 (for short the Recruitment Rules) initial recruits were to be selected from amongst the Assistant Settlement Officers (Non-Gazetted) Kammgos of Settlement Organisation, Surveyors of District Organisation and Settlement Organisation and after such initial recruitment, subsequent vacancies were to be filled up by direct recruitment, promotion and transfer. Soon after the initial recruitment, the first appointment by direct recruitment to subsequent vacancies was that of Shri Kumud Bandhu Acharjee who joined as Revenue Inspector on 18.6.71. Hence all appointees who had joined as Revenue Inspectors on and after 18.6.71 are not initial recruits. The respondent Nos 4 and 5 joined pursuant to their appointments on transfer on 7.8.71 and 28.9.71 respectively. Therefore, the respondent Nos 4 and 5 cannot be treated as initial recruits. Mr. Bhattacharjee further argued that since the petitioner's seniority was to be counted as a direct recruit with effect from 2.7.71, which was the date when he joined as Revenue Inspector, the respondent Nos 4 and 5 who had joined subsequent to 2.7.71 would be junior to the petitioner as Revenue Inspector. Alternatively, Mr. Bhattacharjee relied on paragraph 7 (ii) of the General Principles for Determination of Seniority of Various Categories of Persons Employed Under Tripura Administration circulated under office order dated 12.7.60 of the Tripura Administration Appointment Department for his submission that the relative seniority between the persons appointed on transfer, direct recruitment and promotion will be determined according to rotation of .vacancies under the Recruitment Rules. He contended that since under the Recruitment Rules and, in particular, Col 10 of the said Rules, after the initial constitution was over, 25% of the subsequent vacancies were to be filled up by direct recruits, 50% of the subsequent vacancies were to be filled up by promotion and 25% of the subsequent vacancies were to be filled up by transfer, the vacancies are to be rotated accordingly between the direct recruits, promotees and transferees and the seniority is to be fixed between direct recruits, promotees and transferees according to such rotation of vacancies. He produced before the Court a chart to show that as per rotation of vacancies in accordance with the said Recruitment Rules, the petitioner would be appointed to an earlier vacancy and the respondent Nos 4 and 5 would be appointed to subsequent vacancies. He submitted that as per the said General Principles for Determination of Seniority of Various Categories of Persons Employed Under Tripura Administration, the petitioner should be placed above the respondent Nos 4 and 5 in the cadre of Revenue Inspectors. 4. Mr. He submitted that as per the said General Principles for Determination of Seniority of Various Categories of Persons Employed Under Tripura Administration, the petitioner should be placed above the respondent Nos 4 and 5 in the cadre of Revenue Inspectors. 4. Mr. RB Sinha, learned counsel for the State respondents, also relied on the said paragraph 7 (ii) of the General Principles for Determination of Seniority of Various Categories of Persons Employed Under Tripura Administration quoted in paragraph 27 of the counter-affidavit filed on behalf of the respondent Nos 1, 2 and 3 for his contention that the respondent Nos 4 and 5 who were appointed on transfer were senior to the petitioner. He submitted that although the petitioner joined as Revenue Inspector on 2.7.71 before the respondent Nos 4 and 5 joined as Revenue Inspectors, there was a break in the service of the petitioner and for h this reason he cannot be given seniority over respondent Nos 4 and 5. He argued relying on paragraph 23 of the counter-affidavit that respondent Nos 4 and 5 were appointed prior to the appointment of the petitioner and, as such, the relative seniority of the respondent Nos 4 and 5 was fixed as per the decision of the Govt communicated by letter dated 12.3.80 of the Govt after giving due weight-age to the post of Kanungos which they were holding prior to their promotion to the post of Revenue Inspectors. 5. In paragraph 21 of the writ application, the petitioner has stated that the appointments of the respondent Nos 4 and 5 were not on initial constitution. This statement has not been disputed by the respondent Nos 1,2 and 3 in their counter affidavit. The respondent Nos 4 and 5, therefore, are not initial recruits. Col 10 of the Recruitment Rules is extracted herein below : “10. Method of recruitment, whether by direct recruitment or by promotion or by deputation/transfer and percentage of vacancies to be filled by various methods: (1) Initial Constitution: (i) A number of Revenue Inspector's posts equal to number of existing Circle Officers will be kept in abeyance till they vacate the posts of Circle Officers. (ii) The remaining posts will be filled by selection from the following categories of officers: (a) Assistant Settlement Officers (Non Gazetted) (b) Kanungos of Settlement Organisation. (c) Surveyors of District Organisation and Settlement Organisation. (ii) The remaining posts will be filled by selection from the following categories of officers: (a) Assistant Settlement Officers (Non Gazetted) (b) Kanungos of Settlement Organisation. (c) Surveyors of District Organisation and Settlement Organisation. (2) After the initial constitution is over subsequent vacancies will be filled as follows: (i) By direct recruitment .... .... 25 PC (ii) By promotion .... .... 50PC (iii) By transfer failing which by direct recruitment .... 25 PC' It is thus clear from Col 10 of the Recruitment Rules that after initial constitution was over, subsequent vacancies were to be filled by way of direct recruitment, promotion and transfer as per quota fixed therein. It will also be clear from the aforesaid Col 10 of the Recruitment Rules that the number of Revenue Inspectors equal to the number of existing Circle Officers were to be kept in abeyance till they vacated the posts of Circle Officers and only remaining posts were to be filled by selection from Assistant Settlement Officers, Kanungos of Settlement Organisation and the Surveyors of the District Organisation and the Settlement Organisation by way of initial constitution. The total number of posts of Revenue Inspector as per Col 2 of the Recruitment Rules were 41. Out of these 41 posts, the number of Revenue Inspector's posts equal to existing Circle Officers which were to be kept in abeyance and the remaining posts were to be filled by way of initial constitution. It is further clear from the aforesaid Col 10 of the Recruitment Rules that it was only after the initial recruitment to those remaining post that subsequent vacancies were to be filled by direct recruitment, promotion and transfer as per the quota indicated therein. Further although the aforesaid provision clearly states that the quota of direct recruits would be 25% of the subsequent vacancies, the quota for promotion would be 50% of the subsequent vacancies and quota for transfer would be 25% of such subsequent vacancies, the provision does not indicate the sequence in which the subsequent vacancies are to be filled by direct recruitment, promotion or transfer. In other words, the sequence of rotation of subsequent vacancies amongst the direct recruits, promotees and transferees has not been clearly indicated in the aforesaid Col 10 of the Recruitment Rules. In other words, the sequence of rotation of subsequent vacancies amongst the direct recruits, promotees and transferees has not been clearly indicated in the aforesaid Col 10 of the Recruitment Rules. Therefore, paragraph 7 (ii) of the General a Principles for Determination of Seniority of Various Categories of persons employed under Tripura Administration on which great reliance has placed by both Mr. Bhattacharjee and Mr. Sinha would not strictly apply for determination of seniority of the petitioner vis-a-vis the respondent Nos 4 and 5. 6. Law is well settled that in the absence of any specific rule for determination of seniority, the length of service of the respective officers in the cadre in question will be the basis for determination of seniority. In the instant case, moreover the petitioner on the one hand the respondent Nos 4 and 5 on the other hand had been recruited to the cadre of Revenue Inspector from two different sources and their relative merit in any common selection does not arise. The petitioner admittedly joined as Revenue Inspector on 2.7.71 whereas the respondent Nos 4 and 5 joined as Revenue Inspectors on 7.8.71 and 28.9.71 respectively as indicated in the Final Seniority List of the Revenue Inspectors published in November, 1980. The petitioner, therefore, would be senior to the respondent Nos 4 and 5 as Revenue Inspector. The contention of the State-respondents in their counter affidavit that the respondent Nos 4 and 5 were earlier appointed as Kanungos and were, therefore, in service prior to the petitioner will have no relevance to the fixation of seniority in the cadre of Revenue Inspector. What is relevant for fixation of seniority in the cadre of Revenue Inspector is the date on which the petitioner and the respondent Nos 4 and 5 joined in the cadre of Revenue Inspector. Similarly, the argument of Mr. Sinha that there was a break in service of the petitioner does not hold good because it is clear from the order dated 26.8.93 (Annexure 7 to the writ petition) that the State Govt had already approved the fixation of seniority of the petitioner with effect from 2.7.71.1 am, therefore of the considered opinion that in the cadre of Revenue Inspector, the petitioner was senior to the respondent Nos 4 and 5 on account of his greater length of service as Revenue Inspector. 7. 7. The petitioner being senior to the respondent Nos 4 and 5 in the cadre of Revenue Inspector was entitled to be considered before the said respondents for promotion to Tripura Civil Service Grade II. Yet the respondent No. 4 was considered for such promotion and was actually promoted in the year 1989 and the respondent No. 3 was also considered for such promotion and actually promoted in the year 1991, whereas the petitioner was considered for promotion and promoted only in the year 1997. I am of the considered opinion that the petitioner would be entitled to be declared as promoted to the post of Tripura Civil Service Grade II with effect from the date on which the respondent No. 4 was promoted to Tripura Civil Service Grade II and would also be entitled to all consequential service benefits. But as the petitioner has not worked in Tripura Civil Service Grade II until he was promoted in 1997, he will not be given the pay and allowances as an Officer of Tripura Civil Service Grade n for the period prior to his actual promotion in the year 1997, and will be given notional benefits only. 8. The writ petition is allowed with the aforesaid observations and directions. Considering, however, the facts and circumstances of the case, the parties shall bear their own costs.