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2005 DIGILAW 724 (GAU)

Brajadulal Dutta v. State of Tripura

2005-09-26

A.B.PAL

body2005
JUDGMENT A.B. Pal, J. 1. The two writ Petitioners herein were appointed as fireman on 10.4.1973 and 18.04.1973. The 3rd and 4th Respondents were also appointed as fireman on 17.04.1973 and 23.04.1973 respectively. A seniority list of firemen was published on 9.12.1974 wrongly showing the 1st Petitioner below the 3rd Respondent and 2nd Petitioner below the 4th Respondent though they were appointed earlier. The said seniority list was called in question by another fireman Milan Krishna Paul in a suit in the Court of learned Subordinate Judge, West Tripura, Agartala in T.S.26 of 1977. By the judgment dated 31.01.1983 passed by the learned Subordinate Judge, the said seniority list was set aside with a direction to the State Respondents to publish a correct seniority list of the firemen on the basis of their date of joining in the post of fireman. The Respondents assailed the said judgment in the first appellate court in Title Appeal No. 10 of 1983 and having lost there filed Second Appeal No. 10 of 1984 which was also dismissed by this Court. Thereafter on 16.11.1996 a fresh seniority list was finally published showing the 1st Petitioner Brajadulal Dutta at serial No. 71, above the 3rd Respondent at serial No. 72 and the 2nd Petitioner Usha Ranjan Roy was shown at serial No. 73 above the 4th Respondent at serial No. 74. But during these long period from 9.12.1974 when the first seniority list of firemen was published to 16.11.1996 when the second seniority list of firemen following the judgment and order of the court was published, a period of more than 22 years, much water has flown down the river creating certain anomalous situation regarding promotion of the Petitioner and the private Respondents which have been sought to be addressed by the present writ Petitioners. The 3rd and the 4th Respondents have reaped the benefits of their seniority position in the first seniority list by way of promotion to the post of Sub Officer with effect from 18.5.1977 and 1.12.1979 respectively. The two Petitioners got promotion to the said post of Sub Officer only on 4.8.1977, after a period of 8 to 10 years. The next promotion from Sub Officer is to the grade of Station Officer to which the 3rd and 4th Respondents have been promoted leaving the Petitioners in the grade of Sub Officer. The two Petitioners got promotion to the said post of Sub Officer only on 4.8.1977, after a period of 8 to 10 years. The next promotion from Sub Officer is to the grade of Station Officer to which the 3rd and 4th Respondents have been promoted leaving the Petitioners in the grade of Sub Officer. For promotion to the grade of Station Officer certain training is compulsory for the purpose of eligibility as per recruitment rules, but because of their lowered position in the wrong seniority list, the Petitioners were not sent for the said training before the 3rd and 4th Respondents. By this writ petition, the Petitioners have sought a direction to the Respondents to consider their promotion to the post of Station Officer and other higher posts from the date when the 3rd and 4th Respondents have been promoted and restore their seniority in all the grades showing them above the 3rd and 4th Respondents. They have also sought for setting aside the order dated 8.6.2000 (Annexure-6) of the Director of Fire Services (the 2nd Respondent herein) whereby the representation of the Petitioners for retrospective promotion and seniority has been rejected. 2. The Respondents have contested the claims of the Petitioners contending, inter alia, that though the seniority list was recast on 16.11.1996 following the direction of the court, it was not possible to provide retrospective promotion to the Petitioners only on the basis of such restored seniority, particularly because there was no such specific direction in the judgment following which the seniority positions had to be recast. 3. I have heard Mr. S. Talapatra, learned senior counsel assisted by Mr. B. Banerjee, learned Counsel for the Petitioners and Mr. A. Ghosh, learned Government Advocate for the State-Respondents. 4. It is submitted by the learned senior counsel for the Petitioner that the prayers of the Petitioners in the present case are squarely covered by the judgment of this Court in Civil Rule No. 510 of 1995 filed by one Swapan Kumar Majumder, another fireman whose seniority position has been shown at serial No. 69 of the revised seniority list published on 16.11.1996. It is submitted by him that the said writ petition has been disposed of by this Court giving the following directions: The writ petition accordingly succeeds and stands disposed of with direction to the official Respondents, particularly the Respondent No. 3 to constitute a DPC to consider afresh whether the Petitioner was fit for promotion to the Grade of Sub Officer with effect from the date when the Respondent No. 5 was promoted and if so found and promoted, his seniority in the Grade of Sub Officer as well as Station Officer should be re-fixed in accordance with the relevant provisions of law applicable to the officers of both the Grades. No cost. 5. On a careful perusal of the fact situation in Civil Rule No. 510 of 1995 it would appear that the aforesaid case is not exactly similar to the fact situation of the case on hand. In Swapan Kumar (supra), the Petitioner and the 5th Respondent were promoted to the post of Sub Officer, the time gap between date of their promotion being only a few months. The 5th Respondent therein, Arabinda Sarkar whose position in the seniority list is at serial No. 72 was promoted a few months earlier because of his seniority position in the wrong seniority list. After promotion to the post of Sub Officer both of them were sent for training in the National Fire Service College (NFSC), Nagpur. At the end of the training an examination was held in which Swapan Kumar Majumder came out successfully while Arabinda Sarkar became unsuccessful. As successful completion of the training is an essential condition for becoming eligible for promotion to the post of Station Officer, Swapan Kumar Majumder was recommended by the D.RC. on 8.7:1992 for promotion and the said recommendation was approved by the Tripura Public Service Commission (for short TPSC). But the recommendation was not acted upon by the state Respondents. The next D.P.C. was held on 29.9.1993, when Arabinda Sarkar completed his training successfully. The recommendation did not include Swapan Kumar Majumder, only Arabrinda Sarkar was recommended. The TPSC, however, did not approve such recommendation because the State Government did not act upon its earlier recommendation in favour of Swapan Kumar Majumder. On 15.3.1995 TPSC approved fresh recommendation for promotion of 3 officers including Swapan Kumar Majumder and Arabinda Sarkar. Accordingly, they were promoted. The recommendation did not include Swapan Kumar Majumder, only Arabrinda Sarkar was recommended. The TPSC, however, did not approve such recommendation because the State Government did not act upon its earlier recommendation in favour of Swapan Kumar Majumder. On 15.3.1995 TPSC approved fresh recommendation for promotion of 3 officers including Swapan Kumar Majumder and Arabinda Sarkar. Accordingly, they were promoted. But as the Petitioner has been shown junior to Arabinda Sarkar, he has called in question the seniority on the ground that he should have been promoted in 1992 on the basis of the recommendation of the D.P.C. approved by the TPSC. This cause of action of Swapan Kumar Majumder has opened up the question of seniority which was traced back to their position in the immediate lower grade of Sub Officer. In Civil Rule No. 510 of 1995 this Court refused to give any direction for considering retrospective promotion of the Petitioner from 1998 but directed to re-fix his seniority in the Grade of Station Officer to which both Swapan Kumar Majumder and Arabinda Sarkar were promoted on the same date. For that purpose it became essentially necessary to determine inter se seniority of Swapan Kumar Majumder and Arabinda Sarkar on the basis of their revised seniority in the grade of fireman. Thus, only for the limited purpose of redetermining seniority of the Petitioner in the grade of Station Officer in the background of the special circumstances noted above the direction to determine afresh his seniority in the grade of sub officer had to be rendered. 6. In the present case, the Petitioners have been promoted from fireman to Sub Officer only on 4.8.1987 whereas 3rd and 4th Respondents were promoted to that grade on 18.5.1977 and 1.12.1979, about 8 and 10 years before. The 3rd and 4th Respondents have again been promoted to the post of Station Officer while Petitioners are yet to be promoted to that grade. As already noted above, successful completion of training in NFSC is essential for being considered for promotion to the post of Station Officer. The Petitioners have not undergone that training which is sine qua non for the purpose of considering their promotion to that grade at the time when 3rd and 4th Respondents were promoted. As already noted above, successful completion of training in NFSC is essential for being considered for promotion to the post of Station Officer. The Petitioners have not undergone that training which is sine qua non for the purpose of considering their promotion to that grade at the time when 3rd and 4th Respondents were promoted. Thus there is no fresh cause of action for the Petitioner as in the case of Swapan Kumar Majumder, the question of whose seniority vis-a-vis Arabinda Sarkar was kept open by the state Respondents and that had made it possible to re-examine the entire issue regarding their seniority. The situation is completely different in the case on hand. Though the Petitioners' seniority is the foundation for claiming retrospective promotion from the date when 3rd and 4th Respondents were promoted, they remained silent for more than 20 years since the date when 3rd and 4th Respondents were promoted to the grade of Sub Officer. They remained silent even when those Respondents were promoted to the post of Station Officer. They preferred not to make any claim even after their seniority position was recast on 16th November, 1996. They have filed the writ petition only in 2000. The above factual position cannot be placed on the anvil of the facts in Swapan Kumar (supra) in order to enable this Court to give same or similar direction. Though the Petitioners have become senior to the 3rd and 4th Respondents by virtue of the fresh seniority list publish on 16th November, 1996 it would not be appropriate to give a direction for considering promotion of the Petitioners from a date 10 years prior to their promotion when 3rd and 4th Respondents were promoted to the grade of Sub Officer. Delay prevents me from giving any direction to unsettle a settled position. 7. For the discussion made above, this writ petition is found to have no merit and consequently the same is closed. No costs.