Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 753 (GAU)

Bidhu Bhusan Deb v. State of Tripura

2009-10-29

UTPALENDU BIKAS SAHA

body2009
JUDGMENT U.B. Saha, J. 1. The instant writ petition is filed by the petitioners, four in number, for quashing the Memo being No. F. No. II-935/IGP/98(P) dated 27th November, 2002 whereby and where under the private respondents were promoted to the posts of head warder on transfer to the places indicated in the aforesaid memo against each of them in the pay scale of Rs. 3,300-100-4,800-110-5,900-120-7,100 plus other allowances as admissible from time to time. 2. Heard Mr. N. Majumdar, learned Counsel appealing for the petitioners and Mr. S. Chakraborty, learned Addl. Government advocate for the State respondents as well as Mr. P. Roy Barman, learned Counsel appearing for the private respondents. 3. The factual matrix pleaded by the petitioners for the relief sought for is as under: The petitioners are working as warders and three of them were working in the Central Jail, Agartala and the petitioner No. 3 was working in Kamalpur Sub-Jail, Dhalai District, at the time of filing the writ petition. The petitioner No. 1 Sri Bidhu Bhusan Deb entered into service on 8.11.1979, petitioner No. 2 Sri Tulsidas Dey, entered into service on 10.6.1976, petitioner No. 3, Sri Parimal Chakraborty entered into service on 8.11.1979 and the petitioner No. 4, Sri Kamal Ranjan Das who belongs to the SC community entered into service on 26.12.1980 and their conduct and quality as public servant was never questioned by any of their authorities and no adverse entry in their ACRs/CCRs was ever made. They were never proceeded under any disciplinary rules. The next post of promotion for warder is head warder. Though the petitioners fulfill all the requisite eligibility for promotion to the post of head warder, as per the amended rules for recruitment to the post of head warder, they were not promoted. Even though they appeared the departmental examinations from time to time, particularly in the year 1990, 1996, 2001 as well as 2002, and in the year 2002 though in view of the memo dated 17th April, 1990 (annexure B to the writ, petition) it was informed that those who passed the departmental examination held in March, 1990 would not he required to appear in future departmental examinations for the purpose of promotion but, then also the petitioners appeared in the departmental examinations held from time to time. The authority promoted the private respondents some of whom entered into service as warder in the year 1985, 1990 as well as in 1995 and admittedly junior to the petitioners and not only that even the persons who did not appear in the departmental examinations were also promoted depriving the petitioners though the names of the petitioners were shown in the merit list. Being aggrieved by the action of the State respondents the petitioners preferred this writ petition by way of impugning the order/memo No. F. No. II-935/IGP/98(P) dated 27th November, 2002 (Annexure-D to the writ petition). 4. It is the admitted position that the post of warder is the feeder post for promotion to the post of head warder for which the recruitment rules were published on 25.9.1982 and the post is a selection post. The said rule provides that five years of experience in the post of warder and passing of the departmental examination would be the eligibility criteria for promotion to the post of head warder and the present petitioners also possessed the experience and fulfilled all other criteria including the basic training. It is also the admitted position that though the petitioners appeared in the departmental test but before publication of the results, the private respondents were promoted to the posts of head warder vide impugned memo No. F. No. II-935/IGP/98(P) dated 27th November, 2002. It is further contended that the petitioners have been rendering their services as warder for 23 years, 26 years, 23 years (sic)??? though the 1988 pay rules which (sic)??? for allowing employees, like (sic)??? one on continuous service in a (sic)??? years, and the petitioners were (sic)??? but only one higher scale (sic)??? revision of pay scales in 1999. (sic)??? depriving the legitimate due (sic)??? denial of promotion to (sic)??? and unfair action of the (sic)??? them. Hence, the writ petition. 5. (sic)??? counter affidavit wherein it is (sic)??? published, but the same was prepared before the promotion of the private respondents and only on the basis of the merit list which was approved by the competent authority, promotions were made. It is also contended that the post, of head warder being a selection post, petitioners had no right to claim promotion on the basis of seniority as promotion to the said post has to be given only on the basis of merit. 6. Mr. It is also contended that the post, of head warder being a selection post, petitioners had no right to claim promotion on the basis of seniority as promotion to the said post has to be given only on the basis of merit. 6. Mr. Majumdar submits that the respondents who did not even appear in the departmental examination were considered for promotion and ultimately they were given promotion. But though the petitioners ate admittedly senior to them and appeared in the departmental examinations, they were not given promotion. He further contended that the respondent No. 5 was under suspension at the relevant time1 and the respondent Nos. 6 and 7 though did not compete in the departmental examination nor did they complete the basic training either for ailment or other reasons but then also those persons were considered for promotion and ultimately promoted depriving the petitioners. Therefore, there is no doubt that the promotions were made violating the established norms. Mr. Majumdar submits that so far as the, petitioner No. 2 is concerned, he is not pressing the petition as during pendency of the writ petition he was promoted. However, the petitioner No. 2 asks for liberty to approach the appropriate authority for appropriate relief as he was promoted after two years of the impugned order of promotion. 7. Mr. Chakraborty, learned Addl. Government advocate while resisting the submissions of Mr. Majumdar, showing the relevant records contended that the merit list was prepared, though the same was not officially published, and the promotions were not given on the basis of seniority as the post of head warder is a selection post and the promotions were given on the basis of merit and merit alone and the case of the private respondents were considered by the Departmental Promotion Committee (DPC) along with the petitioners and as the merit position of the private respondents were better than the petitioners, they were promoted following the prescribed rules. He also contended that none who did not appear in the departmental examination was promoted. He explained the procedure for departmental examination in detail. The DPC in its meeting held on 25.11.2002 considered and recommended the names of the panel of candidates for promotion including the private respondents in order of merit. He also contended that none who did not appear in the departmental examination was promoted. He explained the procedure for departmental examination in detail. The DPC in its meeting held on 25.11.2002 considered and recommended the names of the panel of candidates for promotion including the private respondents in order of merit. He also contended that merit list was prepared and placed before the DPC and the DPC being the best judge of selection, selected the candidates in accordance with their merit and court cannot sit over the decision of the DPC, an expert body. He contended that the submissions of Mr. Majumdar, inter alia, that the petitioners were not given the benefit of revision of pay scale as codified in the revision of pay rules, is not correct. He also stated that it is not possible to grant two promotions to every government employee as in the revision of pay rules as there is a provision for career advancement scheme. He finally contended that the earlier select list was prepared on the basis of the departmental examination held in the year 1990. And the life of the said select list expired after one year, therefore, mere passing the departmental examination by the petitioners in March, 1990, is of no use and said list cannot be considered for future promotion. Mr. Chakraborty also agreed to the submission of Mr. Majumdar that the petitioner No. 2 Sri Tulsidas Dey, has already been given promotion during the pendency of the writ petition due to the resulting vacancy. Mr. Chakraborty further pointed out that the promotion order impugned in this case was also challenged in WP(C) No. 437/2003 by one Sri Krishna Bn. Chakraborty almost on the same grounds and this Court after hearing the parties put its seal on the said order of promotion and accordingly dismissed the writ petition. Therefore, the instant case is also covered by the said decision of this Court and no interference is called for. 8. Mr. P. Roy Barman, learned Counsel for the private respondents echoed in the same line of Mr. Chakraborty. 9. In State Bank of India and Ors. v. Mohd. Therefore, the instant case is also covered by the said decision of this Court and no interference is called for. 8. Mr. P. Roy Barman, learned Counsel for the private respondents echoed in the same line of Mr. Chakraborty. 9. In State Bank of India and Ors. v. Mohd. Mynuddin (1987) 4 SCC 486 , the Apex Court noted that the court is not by its very nature competent to appreciate the abilities, qualities or attributes necessary for the task, office or duty of every kind of post in the modern world and it would be hazardous for it to undertake the responsibility of assessing whether a person is fit for being promoted to a higher post which is to be filled up by selection. The duties of such posts may need skills of different kinds, scientific, technical, financial, industrial, commercial, administrative, educational etc. The methods of evaluation of the abilities or the competence of persons to be selected for such posts have also become nowadays very much refined and sophisticated and such evaluation should, therefore, in the public interest ordinarily be left to be done by the individual or a committee consisting of persons who have the knowledge of the requirements of a given post, to be nominated by the employer. Of course, the process of selection adopted by them should always be honest and fair. 10. In Dalpat Abhasaheb Solunke, etc. etc. v. Dr. B.S. Mahajan etc. etc. AIR 1990 SC 434 it is noted by the Apex Court that it is not the function of the court to hear appeals over the decisions of the selection committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted selection committee which has the expertise on the subject. The court has no such expertise. The decision of the selection committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. 11. As it has been noted earlier that Mr. The court has no such expertise. The decision of the selection committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. 11. As it has been noted earlier that Mr. Chakraborty, in support of his submissions also placed the relevant record before this Court and it appears from the record that none of the persons who obtained lesser marks than the petitioners were selected by the selection committee and it also appears that the committee consisted of the experts and it selected the candidates after going through all the relevant material before it including their merit position. As it is settled that a court cannot sit over the selection committee as an appellate authority for setting aside the selection on the ground of mere allegation of the persons whose positions are below the rank of the selected candidates in the merit list, candidates like the present petitioners unless a specific case of illegality or patent irregularity or arbitrariness or mala fide is established. Promotion to a selection post depends upon merit and not on seniority. On perusal of records as placed by Mr. Chakraborty, it appears in the instant case the respondents did not commit any illegality or irregularity while recommended and promoted the private respondents. This Court has also gone through the earlier judgment of this Court in WP(C) No. 437/2003 by which the impugned order of promotion was upheld and the petition of those petitioners was dismissed and this Court finds some force in the submission of Mr. Chakraborty. Promotion is not a right but consideration for promotion is a right and admittedly the case of the petitioners for promotion was considered. Hence, employees like the petitioners, are not entitled to claim promotion simply because they are found eligible and senior to their colleagues. 12. From record it appears that the petitioner No. 2 namely, Sri Tulsidas Dey found place in the merit list and deserved to be promoted and at the time of hearing Mr. Chakraborty pointed out that the petitioner No. 2 had already been promoted during the pendency of the writ petition due to the result and vacancy by way of promotion. Hence, no direction is necessary. 13. Chakraborty pointed out that the petitioner No. 2 had already been promoted during the pendency of the writ petition due to the result and vacancy by way of promotion. Hence, no direction is necessary. 13. In view of the reasons stated herein above, the writ petition does not appear to have any merit. The petitioners failed to make out any case for interference. Hence, the petition is dismissed. No order as to costs. Petition dismissed.