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2001 DIGILAW 272 (GAU)

Niranjan Das v. State of Tripura and Ors.

2001-09-13

AFTAB H.SAIKIA

body2001
Heard Mr. AM Lodh, learned senior counsel assisted by Mr. S. Chakraborty, learned Advocate appearing on behalf of the petitioner. Also heard Mr. UB Saha, the learned Senior Govt Advocate assisted by Mr. J. Majumder, learned Advocate for the State-respondents. 2. By this application under Article 226 of the Constitution of India the petitioner has prayed for the following reliefs: "It is, therefore, prayed that the Hon'ble High Court would be pleased enough to issue Rule upon the respondent to show cause as to why the reliefs prayed for herein would not be granted and after hearing both the parties pass an order directing the respondents to promote the petitioner to the post of Chief Inspector, then Sub Divisional Controller, Food and thereafter to the post of Assistant Director under the Food & Civil Supply Department by issuing an appropriate writ or order and also to declare the fixation of arrears of salary on notional basis as void and illegal and direct the respondents to pay all the arrears of salaries with effect from 5.12.81 and pass such other order or orders as the Hon'ble High Court may deem fit and proper and for this act of kindness the petitioner as in duty bound shall ever pray." 3. The facts briefly stated are that initially the petitioner was appointed as Store Keeper under the Food & Civil Supplies Department, Govt of Tripura on 31.10.1975. In 1981 he possessed the minimum qualification for consideration of promotion to the post of Inspector, Food and accordingly his case was considered by the DPC held in the month of December, 1981. In the meantime, while the petitioner was waiting for promotion to the post of Inspector the petitioner was involved in a criminal case being GR Case No. 1772/1985 under section 409 of IPC. Due to involvement of the petitioner in the said criminal case his promotion was withheld keeping one post of Inspector vacant for him. 4. On 6.3.1991, the petitioner was acquitted from the said criminal case and immediately after his acquittal the Director, Food and Civil Supplies, Tripura respondent No.2 by his order dated 6.2.1992 (Annexure 2 to the writ petition) promoted the petitioner to the post of Inspector, Food with effect from 5.12.1981 temporarily fixing his pay notionally with effect from 5.12.1981 without allowing r him any arrear of pay for the period preceding the date of actual promotion. The order dated 6.2.1992 for the sake of convenience is quoted here under : "Order: Shri Niranjan Das, Store Keeper of the Directorate of Food & Civil Supplies is appointed on promotion to the post of Inspector, Food with effect from 5.12.81 temporarily and until further orders and posted to Kanchanpur Sub Division under North Tripura District. (2) He should submit his joining report to the Sub Divisional Officer, Kanchanpur, North Tripura. (3) Pay of Shri Das should be fixed notionally with effect from 5.12.81, in the pre-revised scale of pay 1982 and thereafter in the pay scale as per ROP Rules, 1982 and 1988 on his joining at Kanchanpur, but he will not be allowed any arrear of pay for the period preceding in the date of actual promotion. (4) Pay etc of Shri Das should be drawn under Head 2408-Food Storage & Ware Housing, 1 -Direction & Administration (Non-Plan)'. (5) This order will take effect from the date of joining of Shri Niranjan Das, Store Keeper to the post of Inspector, Food. Sd/- Director, Food & Civil Supplies, Tripura." 5. Pursuant to the said order of promotion the petitioner joined in the post of Inspector on 9.3.1992 under protest. 6. The grievance of the petitioner is that he is entitled for promotion to the next higher post i.e. Chief Inspector, thereafter Sub Divisional Controller, Food and ultimately to the post of Assistant Director under the Food and Civil Supplies Department. But the authority without giving the benefit of such promotions promoted his juniors i.e. respondent Nos 3 and 4 to the higher posts. 7. The State-respondents contested the averments advanced in the writ petition by filing affidavit-in-opposition against which the petitioner also preferred rejoinder. 8. Mr. UB Saha, the learned Senior Govt Advocate appearing on behalf of the State-respondents, rejecting the contentions of the petitioner, at the very outset, contends that the petitioner has got all the reliefs inasmuch as the petitioner is now holding the post of Assistant Director on regular basis. But the petitioner is not entitled for any payment of arrear salary with effect from 5.12.1981 as prayed for. 9. Relying on the affidavit-in-opposition filed on behalf of the State-respondents, particularly, the statements made in paragraphs 13,14 and 15, Mr. But the petitioner is not entitled for any payment of arrear salary with effect from 5.12.1981 as prayed for. 9. Relying on the affidavit-in-opposition filed on behalf of the State-respondents, particularly, the statements made in paragraphs 13,14 and 15, Mr. Saha submits that from the post of Store Keeper the promotional avenue is open to the next post of Inspector, then to the post of Chief Inspector, Sub Divisional Controller and then Assistant Director. Mr. Saha specifically has mentioned that all those promotional posts are the selection posts. To substantiate his arguments that those posts are selection post he has drawn the attention of this Court to the Annexures R/5, R/6, R/7 and R/8 appended to the affidavit-in-opposition. I have perused those Annexures and found that all those promotional posts are selection posts. 10. It is contended on behalf of the State-respondents that the authority has already taken care of the promotional aspects of the petitioner, that is why one post of Inspector was kept vacant when his case was considered during his involvement in a criminal case as mentioned above. Mr. Saha has referred to Annexure R/3 appended to the affidavit-in-opposition which shows that three posts of Inspector including the post of the petitioner were kept vacant for his promotion and immediately after his acquittal from the criminal case he was given promotion by order dated 6.2.1992 with effect from 5.12.1981 allowing him to draw notional pay with effect from 5.12.1981 and that being the position, he cannot claim for any arrear salaries with effect from 5.12.1981 in accordance with the guiding principle laid down under clause 7 of the Manual of Establishment and Administration (clause 7 of the said Manual is enclosed with the affidavit-in-opposition as Annexure R/4 series). It is further stated that the reasons for not allowing him the arrears of pay has already been detailed in those paragraphs of the affidavit-in-opposition as mentioned above. 11. Reliance has been placed on a decision in the case of Union of India & others vs. KV Jankiraman & others, reported in (1991) 4 SCC 109 . In paragraphs 20,21 and 26 of the said judgment the Apex Court held as follows : "20. The Tribunal has, therefore, directed that on exoneration, full salary should be paid to such employee which he would have received on promotion if he had not been subjected to disciplinary proceedings. 21. In paragraphs 20,21 and 26 of the said judgment the Apex Court held as follows : "20. The Tribunal has, therefore, directed that on exoneration, full salary should be paid to such employee which he would have received on promotion if he had not been subjected to disciplinary proceedings. 21. We are afraid that the Tribunal's reference to paragraph 2 of the Memorandum is incorrect. Paragraph 2 only recites the state of affairs as existed on January 30, 1982 and the portion of the Memorandum which deals with the relevant point is the last sentence of the first sub-paragraph after clause (iii) of paragraph 3 of the memorandum which is reproduced above. That sentence reads as follows : "But no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion." 26. We are, therefore., broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blame worthy in the least and is not visited with the penalty even the censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceeding. However, there maybe cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he thus, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated in disciplinary criminal proceedings he should be entitled to all salary for the intervening period is to undermined discipline in the administration to jeopardizes public interests. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated in disciplinary criminal proceedings he should be entitled to all salary for the intervening period is to undermined discipline in the administration to jeopardizes public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum, viz but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion, we direct that in place of the said sentence the following sentence be read in the memorandum. However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record ° its reasons for doing so." 12. Reference has also been made to a decision in the case of CO Arumugam & others vs. State of Tamil Nadu & others, reported in 1991 Suppl (2) SCC 199. In paragraph 5 of the said decision the Apex Court observed as follows : "5. As to the merits of the matter, it is necessary to state that every civil servants has a right to have his case considered for promotion according to his turn and it is a guarantee flowing from Articles 14 and 16(1) of the Constitution. The consideration of promotion could be postponed only on reasonable grounds. To avoid arbitrariness, it would be better to follow certain uniform principles. The promotion of persons against whom charge has been framed in the disciplinary proceedings or charge sheet has been filed in criminal case may be deferred till the proceedings are concluded. They must, however, be considered for promotion if they are exonerated or acquitted from the charges. If found suitable, they shall then be given the promotion with retrospective effect from the date of which their juniors were promoted." 13. They must, however, be considered for promotion if they are exonerated or acquitted from the charges. If found suitable, they shall then be given the promotion with retrospective effect from the date of which their juniors were promoted." 13. In the light of the above decisions it is submitted that the petitioner's case was considered immediately after his exoneration from the criminal charges and he was given his due promotions. But he is not entitled to for any arrear salaries with effect from 5.12.1981. 14.I have given my thoughtful consideration to the pleadings of the parties and also the materials available on record and also given my anxious consideration to the rival contentions advanced on behalf of the parties. 15. It is an admitted position that the petitioner is now holding the post of Assistant Director, Food. Therefore, as regards the grievance for non considera­tion of his promotion to the present higher post which he is holding, the same has already been redressed. But so far his payment of arrear salary is concerned, it is seen, on perusal of the records that the petitioner is not entitled to the same " because the petitioner's promotion to the post of Inspector was given effect to only after his acquittal from the criminal charges i.e. on 6.2.91 and immediately thereafter on 6.2.1992, as evident from Annexure 2 to the writ petition,, the petitioner was given his promotion with retrospective effect from 5.12.81. Since the petitioner had not been discharging his duties as Inspector during that period of retrospective promotion, he is not entitled, in my opinion, for any arrear salaries. 16. Mr. AM Lodh, the learned senior counsel appearing on behalf of the petitioner submits that though the petitioner was promoted and at present holding the post of Assistant Director, the petitioner has been denied his due promotion at par with his juniors when the respondent Nos 3 and 4 were promoted to the post of Chief Inspector, Food. 17. Refuting the said submission, Mr. Saha contends that all those promotional posts, are being the selection posts, the petitioner cannot claim, as a matters of right, for promotion to these posts. Further it is stated that none of his junior was also promoted, depriving the petitioner's right for consideration for his promotion. 17. Refuting the said submission, Mr. Saha contends that all those promotional posts, are being the selection posts, the petitioner cannot claim, as a matters of right, for promotion to these posts. Further it is stated that none of his junior was also promoted, depriving the petitioner's right for consideration for his promotion. In fact, due to pendency of the criminal case, the petitioner's case could not be considered though one post for him had been kept vacant. The respondent No.4 Parimal Das, who was promoted to the post of Inspector, during the pendency of the criminal case against the petitioner, was also promoted to the post of Chief Inspector on 12.10.90 on the basis of selection. On the other hand, the petitioner was acquitted from the criminal charge only on 6.3.91. 18. From the perusal of records, it appears that the petitioner did not challenge specifically the promotion of the respondent Nos 3 and 4. Nor did he assail his promotion order dated 6.2.92 (Annexure 2 to the writ petition). It is also seen that the posts of Inspector, Chief Inspector, Sub Divisional Controller, Food and Assistant Director, Food are all selection posts. Therefore the petitioner has no claim, as a matter of right, to those promotional posts. But, as stated at the Bar, the petitioner has, by now, got all the promotions per his prayer in the writ petition, This writ petition was filed in 1992 but all the subsequent events of his promotion have been brought before this Court. More interestingly, the petitioner has also not taken any steps to agitate any other subsequent grievances, if at all have arisen, after the filing this writ petition. According to Mr. Saha, the respondents 3 and 4 are not promoted prejudicing the interest of the petitioner. On the other hand, Mr. AM Lodh, learned counsel has failed to apprise this Court as regards b the present position. I have not found any materials on record that the respondent Nos 3 and 4 have superseded that petitioner save and except the promotion of the respondent 4 to the post of Chief Inspector (being selection post) on 12.10.90, that too, when the petitioner had been facing criminal charges. Accordingly, I feel that the petitioner is not entitled to any other reliefs beyond the pleadings. 19. Accordingly, I feel that the petitioner is not entitled to any other reliefs beyond the pleadings. 19. That being the position, since the petitioner has already been promoted to the post of Assistant Director as stated at the Bar, I am of the considered opinion that the petitioner has got all the reliefs as prayed for in the writ petition. It is made clear that he is not entitled for payment of any arrear salaries with effect from 5.12.1981 since his pay was fixed notionally with effect from 5.12.1981 and he did not discharge any duty during that period. 20. Accordingly, this writ petition stands dismissed. No costs.