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2007 DIGILAW 563 (GAU)

Siddhartha Debbarma v. State of Tripura

2007-08-22

BIPLAB KUMAR SHARMA

body2007
JUDGMENT B.K. Sharma, J. 1. Heard Mr. S. Talapatra, learned Sr. Counsel assisted by Mr. B. Banerjee, learned Counsel for the petitioner. Also heard Mr. D.C. Nath, learned Counsel for the State respondents. By means of this writ petition, the petitioner has called in question the determination of seniority of the private respondents over him in the cadre of Accountant. According to the petitioner, he having been declared senior in the substantive grades of Lower Division Clerk (LDC) and Upper Division Clerk (UDC), in the cadre of Accountant the private respondents could not have been shown senior to him. 2. Adverting to the fact of the case, the petitioner and the private respondents were appointed as LDC by Annexure-2 order dated 28.8.82. The tentative seniority list of LDC was published on 23.8.83 and admittedly the petitioner was shown senior to the private respondents. The tentative seniority list was finalized by publishing the final seniority list as on 15.7.87. In the final seniority list also, the petitioner was shown senior to the private respondents. To be precise, while the petitioner was shown at Sl. No. 125, the private respondents were shown at Sl. Nos. 127, 130 and 131 respectively. 3. When the matter rested as above, the petitioner as well as the respondent No. 4 promoted to the rank of UDC by order dated 17.12.87. In this grade also, the petitioner was shown senior to the respondent No. 4. Annexure-6 is the final seniority list of UDC in which while the petitioner was included at Sl. No. 66, the respondent No. 4 was included at S1. No. 67. The names of the respondent Nos. 3 and 5 did not figure in the said seniority list of UDC as by the time this seniority list was published, they were not holding the post of UDC being not provided as such. 4. After showing the petitioner as senior to the private respondents in two successive grades i.e. LDC and UDC, the petitioner was promoted to the post of Accountant by A-7 order dated 21.9.93. Although the petitioner has not annexed the orders of promotion of the private respondents, but from the impugned seniority list of Accountant, it appears that they were promoted by order dated 29.9.93. Thus, as per the orders of promotion also, the petitioner was promoted prior in point of time than the private respondents. Although the petitioner has not annexed the orders of promotion of the private respondents, but from the impugned seniority list of Accountant, it appears that they were promoted by order dated 29.9.93. Thus, as per the orders of promotion also, the petitioner was promoted prior in point of time than the private respondents. It is stated that out of 3 private respondents herein, the respondent No. 3 was not promoted as Accountant and accordingly, his name did not figure in the impugned seniority list. 5. The official respondents published the seniority list of Accountant by Annexure-8 order dated 1.9.95. In this list, the petitioner was included at Sl. No. 57 while the respondent Nos. 4 and 5 were included at Sl. Nos. 55 and 56. The petitioner who was all along shown senior to the private respondents all throughout his service career having been shown junior to the private respondents in the tentative/final gradation list impugned in this proceeding, the petitioner agitated his grievance by filing a detailed representation on 30.9.95 before the Principal Chief Conservator of Forests (PCCF), Tripura. This was followed by further reminders copies of which have been annexed to the writ petition as Annexures 10, 11. 6. In response to the representations made by the petitioner, the Chief Conservator of Forests passed the impugned order dated 22.8.97 rejecting the prayer of the petitioner for showing him senior to the private respondents. The ground assigned in the order is that the seniority has been fixed as per the placements in the approved panel recommended by the selection committee. There is no whisper in the impugned order as to which panel the order refers to. According to the petitioner, the post of Accountant being a non-selection post, the seniority will remain the same as was existing in the substantive grades of LDC and UDC. In this connection, the petitioner has annexed a copy of the Recruitment Rules for appointment to the post of Accountant. 7. It will be pertinent to mention here that the Annexure-7 order dated 21.9.93 by which the petitioner was promoted as Accountant indicated that his seniority would be maintained as per the inter se seniority in service meaning thereby that the seniority of the petitioner was to remain the same as was existing in the substantive grades of LDC and UDC. It will be pertinent to mention here that the Annexure-7 order dated 21.9.93 by which the petitioner was promoted as Accountant indicated that his seniority would be maintained as per the inter se seniority in service meaning thereby that the seniority of the petitioner was to remain the same as was existing in the substantive grades of LDC and UDC. However, denying their own stand, the official respondents determined the seniority of the petitioner as indicated in the impugned seniority list which has been described as 'tentative/final seniority list'. 8. The official as well as private respondents have filed their counter affidavit. The private respondents while not dealing with the contentions raised in the writ petition have simply adopted the affidavit filed by the official respondents. On perusal of the counter affidavit filed by the official respondents, no specific ground towards determination of seniority of the petitioner below the private respondents is discernible. In paragraph 4, it has been stated that the inter se seniority of the petitioner vis-a-vis the private respondents was re-fixed as per the decision of the Government. In this connection, they have annexed the particular Note (Note No. 15) a copy of which has been annexed as Annexure-R/2. The Note was prepared sometime in 1990 dealing with the principles relating to determination of seniority. 9. In the above Note, the seniority in respect of the direct recruits should be determined in accordance with the merit positions obtained in the select list. Admittedly, this Note was prepared after the appointment of the petitioner and the private respondents way back in 1982. By the time the note was prepared the final seniority list of LDC stood already published vide Annexure-4 as on 15.7.8 7 in which the petitioner was shown senior to the private respondents. Likewise, in the final seniority list of UDC also published on 10.6.92, the petitioner was shown senior to the respondent No. 4. Further at the time the petitioner and the respondent No. 4 were promoted to the rank of UDC, the respondent Nos. 3 and 5 were not promoted to the said rank and consequently, their names did not figure in the final seniority list of UDC. 10. If we take into account the orders of promotion to the rank of Accountant, the petitioner was promoted to that rank by order dated 21.9.93. On the other hand, the private respondents Nos. 3 and 5 were not promoted to the said rank and consequently, their names did not figure in the final seniority list of UDC. 10. If we take into account the orders of promotion to the rank of Accountant, the petitioner was promoted to that rank by order dated 21.9.93. On the other hand, the private respondents Nos. 4 and 5 were promoted to that rank by order dated 29.9.93. Thus, according to the dates of appointment to the post of Accountant also, the petitioner was appointed prior in point of time than that of the private respondents. However, in the tentative/final seniority list of Accountant, he was shown junior to the respondent Nos. 4 and 5 they having been included Sl. Nos. 55 and 56 respectively. 11. In para 5 of the counter affidavit, the respondents have categorically stated that the seniority list was finally published as per the decision of the State of Tripura as mentioned in para 6 and 7 of the writ petition. It has also been stated that the seniority position of the petitioner was recorded correctly vis-a-vis the respondent Nos. 4 and 5. If that be so, it is not understood as to how the respondents in the same breath could take another plea that the seniority positions of the parties were determined wrongly. By referring to the statements made in para 6 and 7 of the writ petition, the respondents in their counter affidavit have admitted about final seniority lists in the rank of LDC and UDC. 12. Contrary to the aforesaid stand in para 5 of the counter affidavit, the official respondents have stated that the private respondents were, in fact, senior to the petitioner, but the same could not be indicated due to the unavoidable administrative reasons. It has further been stated that due to wrong fixation of seniority in the substantive grades, the promotion of the private respondents as Accountant was affected at a letter point of time, 13. From the stand of the official respondents in their counter affidavit, it is not discernible on what basis it has been contended that the seniority between the private respondents and the petitioner was determined wrongly. It is also not discernible as to which grade the respondents have indicated. From the stand of the official respondents in their counter affidavit, it is not discernible on what basis it has been contended that the seniority between the private respondents and the petitioner was determined wrongly. It is also not discernible as to which grade the respondents have indicated. If it is in the entry grade of LDC, the seniority positions having been finalized way back in 1987, the respondents could not have reopened the same and that too without affording any opportunity of being heard to the petitioner. By the time, the decision to alter the seniority position was taken, the petitioner's position in both the substantive grades i.e. LDC and UDC got solidified and cementified, but yet the respondents by a stroke of pen altered the seniority position towards publication of tentative/final seniority list in the upper grade of Accountant,. They did so without affording any opportunity of hearing to the petitioner. 14. If the respondents have determined the seniority of the petitioner and the private respondents on the basis of their promotion to the rank of Accountant as per the merit position obtained in the recommendation of the selection committee then also, the submissions made by Mr. S. Talapatra, learned Sr. Counsel for the petitioner that such plea is not applicable in case of non-selection post has sufficient force. However, in absence of any materials, it is not discernible as to whether on that ground the petitioner has been assigned seniority below the private respondents. As indicated above, the date of appointment of the petitioner as Accountant is prior in point of time than the private respondents. However, as per the Recruitment Rules the post is a non-selection post and in promoting the petitioner as Accountant by Annexure-7 order dated 21.9.93, it was indicated that his seniority position would be maintained as per inter se seniority in service. 15. It is the settled principle that the seniority once fixed and finalized should not be interfered with after a long lapse of time. Settled position relating to seniority should not be disturbed lightly. In the instant case, the seniority of the petitioner in both the grades i.e. LDC and UDC has been disturbed after a long lapse of time and that too without affording any opportunity of being heard. 16. Settled position relating to seniority should not be disturbed lightly. In the instant case, the seniority of the petitioner in both the grades i.e. LDC and UDC has been disturbed after a long lapse of time and that too without affording any opportunity of being heard. 16. For all the foregoing reasons, the tentative/final gradation list of Accountant as published vide Annexure-8 letter dated 1.9.95 so far as the same relates to the petitioner and the private respondents stands interfered with. As per the official respondents own stand vide Annexure-7 order dated 21.9.93, the seniority of the petitioner shall be maintained as per inter se seniority in service. The respondents shall take action on the Annexure-9 representative dated 30.9.95 consistently with the directions and observations made above towards finalization of the final gradation list. 17. The writ petition is allowed without, however, any order as to costs. Petition allowed.