Research › Search › Judgment

Gauhati High Court · body

2002 DIGILAW 482 (GAU)

Manindra Chandra Das v. State of Tripura

2002-12-13

B.B.DEB

body2002
B.B. DEB, J. — Petitioner in this writ petition has sought for the following reliefs" (i) His promotion to the equivalent post of Additional Superintendent of Police (Ex-cadre) be declared to be from the date when the respondent No. 3 Shri B. B. Choudhury, T.P. S. was promoted. (ii) His seniority in the rank of Tripura Police Service Grade-n be declared with effect from his date of confirmation. (iii) The annual confidential report of the petitioner for the period from 1.1.1984 to 31.12.1995 be quashed being illegally recorded. (IV). Pending writ petition further promotion of Respondents No. 4 to 9 be with-held. 2. In short, the petitioner's case could be narrated thus:(a) The petitioner along with others have been appointed to Tripura Police Service Grade-II (T.P.S. Grade-II) by direct recruitment vide Notification No. F.2 (36) -GA/75 dated 2nd June, 1976. Long after the appointment of the petitioner some officers, namely, Shri Dhurjauti Gautam, Shri Maniridra Bhowmic, Shri Amal Kanti Roy, Shri Parswanath Roy and Shri Bibhuti Bhusan Choudhury, (Respondent No. 3) were appointed to Tripura Police Service Grade-II vide Notification dated 2nd November, 1976, 23rd April, 1977 and 23rd August, 1976 and as such, the petitioner ought to have been declared to be confirmed prior to the confirmation of those officers as the petitioner successfully completed the period of probation before the completion of the same by the aforesaid officers. Initially the authority vide Notification dated 5th April, 1986 showed 6.7.1978 being the date of confirmation of the petitioner. Petitioner made correspondences regarding mentioning of wrong date of confirmation and the authority having detected the wrong issued the corrigendum bearing No. R 12 (1) - GA/75 dated 18th April, 1988 (Annexure-2B) putting the correct date of confirmation of the petitioner as on 10.6.1978 instead of 6.7.1978 and as such, petitioner's seniority ought to have been fixed with reference to the date of confirmation of himself vis-a-vis other contemporaneous officers. (b) The State respondent vide Notification No. F10 (20)-GA/83 dated 4th December, 1987 appointed 9 officers of T.P.S. Grade-n to the post under T.P.S. Grade-I, but the petitioner's case was not considered. On the same date by different notifications of even No. dated 4th December, 87, 11 other officers including the petitioner had been promoted to the post under Grade-I on officiating basis. On the same date by different notifications of even No. dated 4th December, 87, 11 other officers including the petitioner had been promoted to the post under Grade-I on officiating basis. In order of confirmation the petitioner ought to have been declared as senior to those officers and in the promotional year his name ought to have been placed above the name of those officers who had been confirmed with reference to the subsequent dates. The petitioner being a member of scheduled caste community ought to have been promoted to the post of T.P.S. Grade-I against the available vacancy meant for S.C. candidate. The petitioner made another grievance that since he was appointed soon before appointment of officers under SI. No. 12 to 21 of the seniority list, his seniority should have been counted from the date of appointment to the post under T.P.S. Grade-11. In making promotion to those officers and the petitioner the authority according to the petitioner, has not followed the 100 point roster meant for special category candidates. During the service career petitioner had never been communicated with any adverse entry in the A.C.R. The respondent No. 1, the State Government vide Notification bearing No. F.20 (3) - GA/85 dated 30th April, 1986 framed a Recruitment rule for the ex-cadre post of Additional Superintendent of Police having 6 (six) sanctioned posts. According to that Recruitment Rule, (Annexure-8-A) the petitioner was not only eligible to be appointed on promotion to the post of Additional Superintendent of Police on following the 100 point roster of reservation but also he ought to have been given preferential treatment but that was also not done. Petitioner also made allegation regarding the improper grading of his A.C.R. by the authority. Some officers junior to the petitioner in T.P.S. Grade-n had been made the controlling of the petitioner who wrote the A.C.R. of the petitioner which ex-facie appear to be unfair and unjust. For the aforesaid reasons the petitioner had been pushed down, as a result, his juniors who were appointed subsequent to the petitioner had been favoured with nominated I.P.S. 3. The petitioner narrated a long history of his grievance which could be summarised precisely as under: i) According to the date of appointment the petitioner was senior to few mores mentioned in the petition. The petitioner narrated a long history of his grievance which could be summarised precisely as under: i) According to the date of appointment the petitioner was senior to few mores mentioned in the petition. ii) According to the date of confirmation the petitioner's seniority had not been fixed correctly; iii) In the promotional post of Additional Superintendent of Police (Ex cadre) the petitioner's seniority and confirmation had not been taken care of as a result he was superseded. iv) Petitioner being a member of S.C. Community ought to have been appointed on promotion to T.P.S. Grade-I against the reserve vacancy meant for S.C. but that was not followed. v) The petitioner was posted under few of his juniors who wrote his A.C.R. which was unfair. vi) Few juniors to the petitioner had been appointed as Superintendent of Police super-seeding the petitioner and some of them had been given nominated I.P.S. while the petitioner's case was not considered. 4. The State respondent filed counter affidavit virtually disputing denying and challenging the averments of allegations made by the petitioner in the writ petition. Coring to the respondent, seniority has been fixed in accordance with the Rules prescribed and in doing so, no injustice was caused to the petitioner. According to the counter affidavit, seniority of TPS officers has to be determined in accordance with the merit assessed by the Public Service Commission in the competitive examination they appeared and, as such, the seniority cannot be dependent upon the issuing of appointment and or date of joining. Confirmation to a post cannot be criterion for determining the seniority. The quoted circular of the Government to follow the date of confirmation in fixing the seniority has no way any application to the present case. The petitioner's case along with other eligible candidates has been considered for the post of Additional Superintendent of Police (Ex-cadre) and the post of Additional Superintendent had been filled up in accordance with the Government decision on the recommendation of the D.P.C. There was also a departmental proceeding pending against the petitioner though he was exonerated. Having followed the provision of laws relating to preparing the select list for nominated I.P.S. the authority prepared the same and the petitioner should not have any grievance. The vigilance clearance was not there in favour of the petitioner as a result the select committee kept its recommendation in sealed cover. Having followed the provision of laws relating to preparing the select list for nominated I.P.S. the authority prepared the same and the petitioner should not have any grievance. The vigilance clearance was not there in favour of the petitioner as a result the select committee kept its recommendation in sealed cover. The petitioner's name along with other eligible had been forwarded to the Union Public Service Commission for the purpose of selection for I.P.S. but the Selection Committee on consideration, found the petitioner not suitable for nomination of IPS. 5. From the aforementioned gist of the rival case, the following points emerged for decision: a) Whether the date of appointment or date of joining would be a relevant factor to determine the seniority of the direct recruits who were appointed to the post of T.P.S. Grade-II or is it the merit assessed by the Public Service Commission in the competitive examination to decide the seniority ? b) Whether the date of confirmation is a deciding factor to determine the seniority of the officer covered by the preceding point ? c) Whether the seniority list of T.P.S. Grade-11 had been correctly published ? d) Whether at the time of filling up the post of Additional Superintendent of Police (Ex-cadre) the petitioner's case was considered in correct perspectively? e) Whether the petitioner's case had been correctly placed with all available materials before the Select committee for consideration of his case for the purpose of nomination to the post of IPS. 6. Learned counsel for the petitioner submits that pursuant to the selection made by the Public Service Commission, the petitioner along with 5 others had been appointed to Tripura Police Service Grade-11 on probation vide Notification No. R2 (36)-GA/75 dated 2.6.1976 and thereafter 3 officers, namely, Shri Dhurjuti Gautam, Manindra Bhowmik and Amal Kanti Roy were appointed to the said post vide notification dated 2nd November, 1996 (Annexure-1 -A) and thereafter two officers* namely, Parswanath Roy and Bibhuti Bhusan Choudhury respondent No. 3 were appointed vide Notification dated 23.4.1977 (Annexure-1 -B) and then T.K. Saynal was appointed vide Notification dated 23.8.1976 (Annexure-IC) to the aforesaid post and as such, according to the petitioner, he should be placed above the name of the aforesaid officers in the seniority list who had been appointed subsequent to the petitioner. The learned counsel further submits that the petitioner should be declared confirmed on completion of 2 years of service before the aforesaid officers, but unfortunately the aforesaid officers had been declared confirmed with effect from the dates referred against their name prior to the confirmation of the petitioner and in the said confirmation order bearing No. F. 12 (l)-GA/75 dated 24th July, 1985 his name was not figured in the confirmation list. However, subsequently vide Notification of even No. dated 5th April 1986 the petitioner was declared confirmed but showing a wrong date of confirmation viz. 6.7.1978 and in doing so the State respondent discriminated the petitioner in fixing his date of confirmation. On several representation being made, the authority issued the corrigendum vide Notification of even No. dated 18.4.1988 (Annexure-2B) the error has been removed putting the correct date of confirmation and according to the said corrigendum the date of confirmation of the petitioner was corrected to be 10.6.1978 instead of 6.7.1978. On perusal of the notification dated 5.4.1986 (Annexure-2 A) and the corrigendum dated 18-4-1988 (Annexure-2-B) it reveals that the petitioner's date of confirmation as on 10.6.1978 has been correctly done. 7. Learned counsel Mr. A. K. Bhowmik, appearing for the petitioner submits that in view of the corrigendum dated 18.4.1988 the petitioner ought to have been shown senior most among the other officers including the Respondent Nos. 3 to 9 in the post of T.P.S. Grade-H. 8. Learned Senior Government Advocate submits that the seniority of the petitioner vis­a-vis other officers appointed directly pursuant to the selection process and the officers appointed to T.P.S. Grade-II on promotion has been finally published vide Notification No. F. 12(2)-GA/90 dated 25th October, 1990 (Annexure-7). The said seniority list showed the seniority position of the direct recruitees and the promotees T.P.S. officers. In fixing the seniority of the direct recruitees themselves the same has been done pursuant to the related service Rules following the merit position assessed by the Public Service Commission in the selection process and regarding the promotees same has been done following the recommendation of the D.P.C. The respondent No. 4 Mr. Bibhuti Bhusan Choudhury is a promotee. Among the direct securitees, the petitioner's name has been placed at SI. No. 9 while the name of respondent No. 3 and 5 to 9 have been placed at SI. Bibhuti Bhusan Choudhury is a promotee. Among the direct securitees, the petitioner's name has been placed at SI. No. 9 while the name of respondent No. 3 and 5 to 9 have been placed at SI. No. 10,20,21,22,23 & 24 respectively and the promotee respondent No. 4 was placed at SI. No. 41 and in doing so, the merit position of the petitioner has been followed. On perusal of the final seniority list (Annexure-7) it reveals that the authority followed the provision of Rule 28 of the Tripura Police Service Rules and the petitioner's seniority has been correctly shown. 9. Mr. Bhowmik, learned senior counsel appearing for the petitioner referring a Memorandum bearing No. F. 12 (l)-GA/88 dated 21st August, 1989 (Annexure-6) submits that in fixing the seniority of an officer not the date of original order of appointment but the date of confirmation would be deciding factor. It appears from the aforesaid Annexure-6 that the State Government adopted the "simplification of confirmation procedure-Delinking of confirmation from the availability of permanent posts" issued by the Government of India vide Office Memorandum No. 18011/186-Estt. (D) dated 28th March, 1988 has been followed by the State Government and pursuant to the clause 4 (6) of the said Office Memorandum, the petitioner seniority should be fixed with reference to his date of confirmation. For convenience sake para 4 (6) of the office Memorandum is reproduced below: "4.6. SENIORITY. According to para 2,3, of the consolidated order of seniority issued vide this Deptt. OM No. 22011/7/86-Estt (D) dt. 3.7.86 where persons are confirmed in an order different from the order of merit indicated at the time of their recruitment or promotion seniority shall follow the order of confirmation and not the original order of merit. Since there is confirmation in the entry grade, seniority will continue to be determined on the basis of confirmation in that grade." 10. Mr. U. B. Saha, learned Senior Government Advocate appearing for the respondents submits that the said office Memorandum of Government of India dated 28.3.1988 has been adopted by the State Government vide notification dated 21st August, 1989 (Annexure-6) giving effect to it from 1.8.1989 and not proper that to and, as such, this Memorandum is no way applicable to the present case. In the case in hand, the petitioner was confirmed vide Notification dated 5th April, 1986 Annexure-A 2 with effect from 6.7.1978 which was corrected vide corrigendum dated 18.4.1988 (Annexure-2-B) substituting the date of confirmation as on 10.6.1978 and as such in my considered opinion the memo of simplification of confirmation" of the Government of India dated 28.3.1988 as adopted by the State Government vide Memorandum dated 21.8.1989 (Annex. 6) with effect from 1.8.1989 has no manner of application in the present case. That apart, the confirmation depends upon the date of successful completion of probation. The probation period has been fixed by the Rule 21 is to be two years. The person topping the list in the merit position in the selection process conducted by the Public Service Commission may not have joined the service with promotness for obvious reason such as due to communication gap the engagement in other department, temporary illness are some of the factors which, may be reasons for non joining the post pursuant to appointment with promptness giving room to the others placed below in the merit position in the comparative examination to join earlier to him and in this manner a person figured below to another in the merit position, might have been joined and completed the probation earlier, as a result the person figured below in the merit position may have completed successfully the probation period earlier than the person toping the list due to delayed joining the service and, as such, in no way confirmation would be deciding factor for determining the seniority. A profitable reference may be had to a decision of the constitutional Bench of the Hon'ble Apex Court decided in Direct Recruit Class II Engineering Officers' Association, appellant vrs. State of Maharashtra and others, respondent, reported in (1990) 2 SCC 715 . 11. For the aforesaid reason, in my considered opinion the date of confirmation cannot be treated to be a deciding factor for determining of seniority. Seniority is to be determined in accordance with relevant service rules time being in force. As has been discussed, the seniority of the petitioner, in my considered opinion, has been fixed correctly pursuant to the relevant rules. 12. The State Government vide Notification No. F. 20 (3)-GA/89(H) dated 30th April, 1986 formulated and published a recruitment rule for the post of Additional Superintendent of Police (ex-cadre). As has been discussed, the seniority of the petitioner, in my considered opinion, has been fixed correctly pursuant to the relevant rules. 12. The State Government vide Notification No. F. 20 (3)-GA/89(H) dated 30th April, 1986 formulated and published a recruitment rule for the post of Additional Superintendent of Police (ex-cadre). The said ex-cadre post of Additional S.P. were / are to be filled up from among the senior seals of I/P.S. Officer or T.P.S. Grade-I officer or by promotion from among the officers holding substantive post of T.P.S. Grade-II for 8 years. 13. At the time of filling up the ex-cadre post of Additional Superintendent of Police, learned counsel Mr. A. K. Bhowmik, submits that the petitioner's case was not considered. On perusal of the departmental file it reveals that the D.P.C. headed by Shri D. Pande, Chairman, Public Service Commission, Tripura assembled on 27th September, 1994 and considered the case of six eligible candidates including the petitioner born in T.P.S. Grade-II and they assessed the suitability and recommended the name of three (3) general candidates, two (2) S.T. candidates having kept the petitioner's name against S.C. vacancy under sealed cover because of the pendency of vigilance case against the petitioner. 14. After the clearance of vigilance case the aforesaid sealed cover was opened and it was found that the D.RC. held on 27.9.1994 found the petitioner not yet fit for promotion". I have perused the minutes of the D.RC. as available in the departmental file and found no glaring illegality committed by the D.RC. The High Court in a writ jurisdiction under Article 226 of the Constitution of lndia, cannot go into in depth investigation over the matter but is to see whether the D.RC. considered the seniority. A.C.R. in proper perspective and having gone through the departmental file containing the minutes of the D.RC. I find no fault in it and, as such, I fail to persuade myself to differ with the conclusion arrived at by the D.RC. However, subsequently the petitioner was admittedly promoted to Grade-I of Tripura Police Service. The petitioner's case had been received due consideration with reference to the seniority. A.C.R. etc. by the D.RC. at the time of filling up the post of Additional Superintendent of Police (Ex-cadre) and the authority acting upon the decision of the D.RC. However, subsequently the petitioner was admittedly promoted to Grade-I of Tripura Police Service. The petitioner's case had been received due consideration with reference to the seniority. A.C.R. etc. by the D.RC. at the time of filling up the post of Additional Superintendent of Police (Ex-cadre) and the authority acting upon the decision of the D.RC. promoted other officers keeping the petitioner's case under sealed cover during the pendency of the vigilance enquiry and, thereafter, opened the sealed cover and found him not suitable. 15. From the Notification bearing No. F.10(2)-GA/83 dated 4th December, 1987 (Annexure-4) the petitioner and others had been appointed on promotion to the post of T.P.S. Grade-I with effect from 1.12.1987 and in the said list the petitioner's name has been figured at SI. No. 1 while the name of the respondent No. 3 has been placed at SI. No. 2 and, as such, in my considered opinion, in appointing the petitioner to T.P.S. Grade-I the authority has not committed any illegality nor any discrimination was done to the petitioner. 16. Learned counsel Mr. Bhowmik, appearing for the petitioner vigorously submits that all the materials including the correct seniority position and the A.C.R.s for the relevant period had not taken into consideration in preparing the select list for the purpose of nomination to the post of I.RS. The matter relating to nomination to the post of I.RS. undoubtendly pertains to the condition of All India Services to be governed by relevant laws and rules for recruitment either direct or by promotion to the post of Indian Police Service which is a Central Service and as such, this Court cannot examine the same in view of the provision of Section 14(l)(a) of the Administrative Tribunals Act, 1985. The remedy, if any, lies in the forum constituted by the Administrative Service Tribunal Act, viz, the Central Administrative Tribunal and in view of the decision of the Hon'ble Apex Court rendered in State of Punjab and others Vrs Mohinder Singh Chawla, reported in AIR 1997 SC 1225 . The High Court sitting in Division Bench could examine the correctness of the decision rendered by Central Administrative Tribunal. The petitioner's grievance that his case had not been properly placed before the Select Committee for his appointment to the post of I.P.S. (Nominated member) cannot be considered by this Court at this stage. The High Court sitting in Division Bench could examine the correctness of the decision rendered by Central Administrative Tribunal. The petitioner's grievance that his case had not been properly placed before the Select Committee for his appointment to the post of I.P.S. (Nominated member) cannot be considered by this Court at this stage. He should approach the Central Administrative Tribunal for the said purpose. 17. In view of what have been discussed above, I am of the considered opinion that the petitioner could not make out a case requiring any sort of interference in this writ petition under Article 226 of the constitution of India and, as such, the petition stands dismissed with no order as to costs.