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2010 DIGILAW 251 (GAU)

Gourab Chakraborty v. State of Tripura

2010-04-09

BIPLAB KUMAR SHARMA, MAIBAM B.K.SINGH

body2010
JUDGMENT B.K. Sharma, J. 1. The unsuccessful writ Petitioners have preferred this appeal against the common judgment and order dated 22.12.2008 passed by the learned Single Judge disposing of four writ petitions being WP(C) 476/2006, WP(C) 477/06, WP(C) 478/06 and WP(C) 480/06. The Appellants are the Petitioners in WP(C) 480/2006. 2. The matter relates to fixation of seniority of the Petitioners vis-a-vis the Respondent No. 6 in Tripura Police Service (TPS) Grade-I. 3. The Petitioners alongwith the Respondent No. 6 were initially appointed in TPS Grade-II and were confirmed in the said grade on satisfactory completion of their period of probation. Such confirmation was made vide notification dated 7.11.1995. In the said notification while the Petitioners-Appellants No. 1 and 2 were placed at Sl. Nos. 8 and 11, the Respondent No. 6 was placed at Sl. No. 13. It is an admitted position that in TPS Grade-II, the Petitioners were senior to the Respondent No. 6 by virtue of their higher merit positions in the select list prepared by the TPSC. 4. By memorandum dated 28.8.1990, a seniority list of TPS Grade-II Officers was published, in which also the Petitioners-Appellants ranked senior to the Respondent No. 6, their respective positions being at Sl. Nos. 3, 6 and 8 respectively. Thereafter, by notification dated 6.10.98, the Petitioners and the Respondent No. 6 were appointed as Addl. SP/Deputy Commandant w.e.f. 6.10.1998. By notification dated 8.11.2004, the final seniority list of Officers belonging to TPS was published under Rule 28 of the Tripura Police Service Rules, 1967 and in the said final seniority list, while the Petitioners; occupied positions at Sl. Nos. 5 and 8, the Respondent No. 6 occupied position at Sl. No. 10. Till that time, the Petitioners-Appellants had no grievance regarding fixation of their seniority. However, their grievance started with the issuance of a draft seniority list dated 23.10.2006 of TPS Grade-I Officers as on 1.10.2006, in which they were shown at Sl. Nos. 5 and 8 as against the Respondent No. 6 at Sl. No. 3. 5. Being aggrieved by the aforesaid draft seniority list of TPS Grade-I, the Petitioners-Appellants raised objection by filling representations, which however, came to be rejected by memorandum dated 16.12.2006. Nos. 5 and 8 as against the Respondent No. 6 at Sl. No. 3. 5. Being aggrieved by the aforesaid draft seniority list of TPS Grade-I, the Petitioners-Appellants raised objection by filling representations, which however, came to be rejected by memorandum dated 16.12.2006. By the said memorandum, it was conveyed that the seniority positions of the Petitioners vis-a-vis the Respondent No. 6 had been correctly assigned as according to the official Respondents, the said Respondent had occupied higher merit position in the matter of promotion to TPS Grade-I. After such rejection of the representation of the Petitioners, the final seniority list of TPS Grade-I Officers as on 1.10.2006 was published maintaining the earlier seniority positions of the Petitioners vis-a-vis the Respondent No. 6. 6. The Petitioners made further representations against the said final seniority list. However, the same did not yield any result. According to the Petitioners, Rule 29 of the TPS Rules, 1967, although had undergone many changes by various amendments but in the said rule, no procedure for determining the seniority has been prescribed in respect of the incumbents in TPS Grade-I. 7. According to the Petitioners, the Office Memorandum dated 23.3.1992 (Annexure-12 to the writ petition) would hold the field in absence of any specific provision relating to fixation of seniority. By the said memorandum dated 23.3.92, a revised procedure in the matter of selection by the DPC was laid down. By the said memorandum, while laying down the procedure relating to assessment of suitability of Officers by grading them as Outstanding, Very Good, Good, etc, it was laid down that there cannot be any supersession among those who are graded as 'fit' in terms of their prescribed 'Bench Mark' and their interse seniority in the feeder grade shall remain intact. 8. It is on the above basis, the case of the Petitioners-Appellants was that their seniority in the feeder rank of TPS Grade-II is to be maintained in TPS Grade-I, and thus the Respondent No. 6 cannot be shown senior to them in TPS Grade-I. 9. In the counter affidavit filed by the official as well as the private Respondent, the contentions raised in the writ petitions were denied. In the counter affidavit filed by the official as well as the private Respondent, the contentions raised in the writ petitions were denied. Their basic contention was that there being an element of selection in the matter of promotion to TPS Grade-I, the seniority in that grade was to be fixed on the basis of the merit positions obtained by the incumbents in the said selection. According to the official Respondents, the private Respondent having scored a march over the Petitioners in the matter of selection to TPS Grade-I, by virtue of his better gradings, the authority has rightly fixed his seniority above the Petitioners. 10. The learned Single Judge having accepted the aforesaid plea of the Respondents has rejected the claim of the writ Petitioners-Appellants for maintaining their seniority over the Respondent No. 6, the Petitioners have preferred the instant appeal. 11. We have heard Mr. S. Talapatra, learned senior Counsel assisted by Mr. D. Bhattacherjee, learned Counsel for the Appellants as well as Mr. S. Deb, learned senior Counsel assisted by Mr. P. Dutta, representing the Respondent No. 6. We have also heard Mr. S. Chakraborty, learned State Counsel, Tripura, representing the official Respondents. 12. During the course of hearing of this appeal, Mr. Talapatra, learned Counsel for the Appellants submitted that both TPS Grade-H and I, being comprised in one service i.e. the Tripura Police Service, the seniority positions of the Petitioners-Appellants in TPS Grade-II are required to be maintained in TPS Grade-I. In this connection, he has referred to the definition clause of the Tripura Police Service Rules, 1967. Under Section 2(f) "Service" means the Tripura Police Service. However, under Rule 3, the service has two grades, namely grade-I (Selection Grade) and Grade-II. Both the posts are Group-A gazetted posts as reflected in Rule 3(3) of the said rules. Under Rule 4(3) of the said rules, the members of selection grade (Grade-I) posts of the service shall be 20% of the authorised permanent strength of the service. 13. Much has been emphasised on Rule 28 of the rules, in terms of which, the State Government shall prepare a list of members of this service arranged in the order of seniority as determined in the manner specified. Such specifications are... 13. Much has been emphasised on Rule 28 of the rules, in terms of which, the State Government shall prepare a list of members of this service arranged in the order of seniority as determined in the manner specified. Such specifications are... in the case of persons appointed on the result of competitive examination or by selection under Clause (b) of Sub-rule (1) of Rule 5, seniority in the service shall be determined by order in which appointments are made to the service. Rule 30 of the rules provides for appointment to selection grade, in terms of which the appointment to the said grade shall be made on recommendation of the Selection Committee under Rule 13 on the basis of merit with due regard to seniority and in consultation with the Commission. 14. Rule 5 of the rules lays down the matter of recruitment, in terms of which 50% of the vacancies are required to be filled up by direct recruitment and the remaining 50% by selection. Rule 13 of the rules deals with the constitution of the Selection Committee. 15. The learned Single Judge has noticed the aforesaid provisions of the rules in the impugned judgment dated 22.12.2008. Although, in the booklet produced by Mr. S. Talapatra, learned Counsel representing the Appellants purportedly containing all the amendments of the 1967 Rules, Mr. Deb, learned Counsel representing the Respondent No. 6 disputes the same. Rule 30 deals with appointment to Selection Grade on the basis of the recommendation of the Selection Committee, on the principle of merit with due regard to seniority but the learned Single Judge in paragraph 15 of the judgment while referring to Rules 28 and 29 of the said rules, has quoted Rule 29(4)(i) as follows: Appointment of the members of the service to the selection grade shall be made by the State Government in consultation with the Commission on the basis of merit with due regard to seniority. 16. Whether it is Rule 30 or Rule 19(4), the criteria for promotion to TPS Grade-I (Selection Grade) remains the same i.e. the merit with due regard to seniority. 17. 16. Whether it is Rule 30 or Rule 19(4), the criteria for promotion to TPS Grade-I (Selection Grade) remains the same i.e. the merit with due regard to seniority. 17. The learned Single Judge has also quoted in the judgment (para 15) Rule 28(i) and the same is reproduced below: 28(i) In the case of persons appointed on the result of competitive examination or by selection under Clause (b) of Sub-rule (1) of Rule 5, seniority in the service shall be determined by the order in which appointments are made to the service. (ii) Omitted. (iii) x x x (iv) x x x 18. The learned Single Judge has also taken note of the aforementioned OM dated 23.3.1992 laying down the particular procedure of providing bench mark with the categorisation Outstanding, Very Good, Good etc. By the said OM, it was provided that the Officers graded as Outstanding would rank enblock senior to those who are graded as Very Good and Officers graded as Very Good would rank enblock senior to those who are graded as good, maintaining their intense seniority in the feeder post within each one of the group. 19. Mr. S. Deb, learned senior Counsel representing the Respondent No. 6 during the course of hearing, by producing the copy of the aforesaid OM dated 23.3.92, submitted that the Petitioners-Appellants have wrongly projected the particular clause in the office memorandum, which speaks of maintaining inter se seniority in the feeder grade and that there could not be any supersession among those who are grade as fit. He has drawn our attention that the said clause alongwith others have been substituted by a subsequent office memorandum laying down the aforesaid criteria of grouping the Officers as Outstanding, Very Good and Good and providing seniority on that basis. 20. The whole controversy centres around the applicability of the said office memorandum dated 23.3.1992. On perusal of the writ petition, it appears that the Petitioners-Appellants were under a wrong notion of maintaining their seniority obtained in the feeder grade of TPS Grade-II, on the basis of the particular clause in OM dated 23.3.1992 which ruled out supersession among those who are graded as "Fit" in terms of their prescribed "Bench Mark" and their inter se seniority in the feeder grade would remain intact. 21. The aforesaid OM dated 23.3.1992 was issued by the Govt. 21. The aforesaid OM dated 23.3.1992 was issued by the Govt. of Tripura in the appointment and Services Department by adopting the revised procedure to be observed by the DPC. By the said Office Memorandum, the Govt. of Tripura had adopted the revised procedure to be observed by the DPC as contained in the Govt. of India, Department of Personnel and Training's OM dated 10.3.1989. Thus, the real office memorandum is the one dated 10.3.1989, circulated under memorandum dated 23.3.1992. 22. The aforesaid OM dated 10.3.89 was issued laying down the method and procedure for objective assessment of the suitability of the candidates. It was emphasised that no interview should be held unless it had been specifically provided for that in the recruitment rules for the post/service. It was further emphasised that when every promotions are to be made by the method of "Selection" by DPC, an interview should form part of the selection process and accordingly necessary provisions should be made in the Recruitment Rules. Laying down the guidelines for the DPC, the aforesaid procedure of providing "Bench Mark" with the categorisation of Outstanding, Very Good and Good etc, it was emphasised that the ACRs of the relevant years should be considered as the same provides the basic inputs, on the basis of which assessment is to be made by each DPC. 23. The learned Single Judge has held that when the Respondent No. 6 has scored a march over the Petitioners in the matter of selection for the post of TPS Grade-I, he would rank senior to the Petitioners in TPS Grade-I. According to the learned Single Judge since Rule 29(4) quoted above clearly indicates that merit should be the basis for promotion with due regard to seniority and the TPS Rules is not exhaustive to define the Bench Mark for promotion, the authority was competent to press into service the aforesaid OM dated 10.3.1989, adopted by the State of Tripura vide Memorandum dated 23.3.1992. Accordingly, the learned Single Judge has held that there was no infirmity in placing the Respondent No. 6 above the Petitioners. 24. During the course for hearing of the writ petition, Mr. Accordingly, the learned Single Judge has held that there was no infirmity in placing the Respondent No. 6 above the Petitioners. 24. During the course for hearing of the writ petition, Mr. Talapatra, learned Counsel for the writ Petitioners-Appellants, adopted the argument that the Petitioners and the Respondent No. 6 having belonged to one service i.e. Tripura Police Service, irrespective of the promotion to TPS Grade- I, the seniority obtained in the substantive TPS Grade-n is required to be maintained. On the other hand, learned Counsel representing the official and private Respondents referring to the aforesaid OM dated 10.3.1989 adopted vide memorandum dated 23.3.1992, while supporting the impugned judgment, submitted that in absence of any definite criteria for promotion to TPS Grade-I, it was well within the jurisdiction of the DPC to follow the said guidelines and the Respondent No. 6 having occupied higher merit position than the Petitioners-Appellants, he has been rightly assigned seniority above the Petitioners-Appellants in TPS Grade-I. 25. So far as the fixation of seniority in TPS Grade-I is concerned, we will discuss the same a little latter. 26. The OM dated 10.3.1989 adopted by memorandum dated 23.3.1992 has been issued in the matter of selection by DPC. The methodology adopted by the DPC is in respect of pure and simple selection. It does not speak of Merit-cum-seniority, seniority-cum-merit, merit-cum-suitability and most importantly Merit with due regard to seniority. In the instant case, the recruitment rules itself having provided consideration of the case of the incumbents on the criteria of 'Merit with due regard to seniority', the Selection Committee was bound to follow the said principle. 27. During the course of hearing of this appeal, Mr. S. Chakraborty, learned State Counsel produced the copy of the Minutes of the Selection Committee, which was constituted with 7 (seven) members comprising of the Chief Secretary as the Chairman, Principal Secretary (R.D.), Director General of Police, Commissioner and Secretary (S.C.W. Department), Commissioner and Secretary (G.A. (P and T) Department), Director, Tribal Welfare and Special Secretary (Home), as members. The committee held its meeting on 23.11.2002. In the minutes, although Rule 29 was referred to but that was altogether for a different purpose which is requirement to fill up vacancies in TPS-I by the TPS-II Officers having atleast 12 years of qualifying service. The committee held its meeting on 23.11.2002. In the minutes, although Rule 29 was referred to but that was altogether for a different purpose which is requirement to fill up vacancies in TPS-I by the TPS-II Officers having atleast 12 years of qualifying service. There is no indication of consideration of the case of the incumbents following the principle of' Merit with due regard to seniority'. 28. In the minutes, the names of the Officers were arranged according to their seniority, in reference to which Mr. Deb, learned Counsel representing the Respondent No. 6 wanted to argue that seniority was given due consideration. We are not impressed with the said submission. The expression 'seniority' was only for the purpose of arranging the names of the Officers according to their seniority in TPS Grade-II. The operative and only relevant part of the minutes of the Selection Committee is "After scrutinising the relevant service records and ACRs of the Officers concerned and as per relevant provision of DPC procedure, the DPC recommends in order of merit, the cases of the following TPS Grade-II Officers for appointment to TPS Grade-I (Selection Grade) on regular basis with retrospective effect". After the aforesaid finding, the Respondent No. 6 was placed at Sl. No. 1, the Petitioners-Appellants were placed at Sl. Nos. 3 and 6 respectively. It is on that basis their seniority has been fixed subsequently. 29. From the aforesaid minutes of the Selection Committee, what is seen is that the said Committee did not even remotely refer to the basis and/or criteria of the selection which is 'merit with due regard to seniority'. The whole basis of the selection is the purported evaluation of the ACRs and service records. Although, in the counter affidavit and during the course of hearing, much emphasis was placed in the aforesaid OM dated 10.3.89 adopted vide memorandum dated 23.3.1992, the DPC did not even remotely refer to the said OM and the procedure laid down therein. In the minutes of the Selection Committee, there is no categorisation of the Officers with any Bench Mark, such as. Outstanding, Very Good and Good, etc. The counter affidavit of the official Respondents runs counter to the minutes of the Selection Committee meeting held on 23.11.2002. 30. Although, it was argued by Mr. In the minutes of the Selection Committee, there is no categorisation of the Officers with any Bench Mark, such as. Outstanding, Very Good and Good, etc. The counter affidavit of the official Respondents runs counter to the minutes of the Selection Committee meeting held on 23.11.2002. 30. Although, it was argued by Mr. Deb, learned senior Counsel representing the Respondent No. 6 that it being the case of the Petitioners' themselves that the aforesaid OM would govern the case for promotion to TPS Grade-I and thus they are estopped from projecting any other methodology of promotion, we are afraid that such a plea cannot be allowed to be adopted or accepted, so as to frustrate the law itself. Law is well settled that there cannot be any estoppels against legal provisions. 31. As per the recruitment rules, it is the criteria of 'merit with due regard to seniority' and such a position cannot be altered by any concession, be it extended by the Petitioners or by the authorities at the helm of affairs. 32. The whole procedure adopted by the Selection Committee is not sustainable on both counts i.e. it did not follow the procedure envisaged in the said OM and it also did not follow the adopted principle of 'merit with due regard to seniority' adopted in the recruitment rules. This being the position, we are of the considered opinion that while maintaining the promotion of the officers to TPS Grade-I, as they have already been found fit, the Selection Committee should hold a fresh selection following the aforesaid criteria of 'merit with due regard to seniority' and thereafter to fix the seniority of the incumbents in the TPS Grade-I. 33. We may gainfully refer to the decision of this Court reported in 2002 (3) GLT 369 : Romen Ch. Kalita and Ors. v. State of Assam and Ors. As in the instant case, in the said case also, the criteria for promotion was merit and suitability with due regard to seniority. The learned Single Judge of this Court has held that the particular parameter adopted for selection did not conform to the laid down criteria for promotion. It was held that weightage to seniority must be given alongwith inter se merit of the eligible candidates. The learned Single Judge of this Court has held that the particular parameter adopted for selection did not conform to the laid down criteria for promotion. It was held that weightage to seniority must be given alongwith inter se merit of the eligible candidates. In paragraph 10 of the judgment, the learned Single Judge observed thus: In the light of the above discussions, the parameters applied making the impugned selection, do not appear to conform to the principle of merit and suitability with due regard to seniority as prescribed by the Rules in force. The correct meaning of the expression, "merit and suitability with due regard to the seniority", having regard to the context of the Rules in force and keeping in mind the earlier Rules holding the field, would be that though the criteria of merit and suitability with due regard to seniority is essential a merit based criteria, seniority cannot altogether be ignored and has to be considered parallely along with merit while determining the eligibility of a candidate for his inclusion in the select list. Though it would not be the duty of the Court to lay down the exact modalities to cover selection by application of said criteria, it may be apposite to observe that out of total marks earmarked for assessment, say out of 100 marks, a particular percentage can be assigned to merit and the remaining percentage to seniority. The percentage prescribed for merit must necessarily be higher than the percentage prescribed for seniority, as the Court has already held that the expression in question convey primarily a merit based assessment. What marks should be given to seniority can also be worked out by taking into account each year of completed service and on that basis the necessary fusion between merit and seniority can be reached. Having reached the aforesaid conclusion, this Court cannot but hold that the parameters applied in the selection on 23.7.2002 do not conform to what was required to be followed by applying the principle of "merit and suitability with due regard to the seniority". The impugned selection and the consequential promotion order dated 19.9.2002 therefore, will have to be set aside, which I hereby do. 34. We are in full agreement with the aforesaid proposition of law laid down by the learned Single Judge. The impugned selection and the consequential promotion order dated 19.9.2002 therefore, will have to be set aside, which I hereby do. 34. We are in full agreement with the aforesaid proposition of law laid down by the learned Single Judge. In the instant case, admittedly the official Respondents did not follow the criteria of 'merit with due regard to seniority' but purportedly conducted the selection on the basis of the aforesaid OM,/which however, is also not reflected in the minutes of the Selection Committee. 35. We now deal with the repeated assertion made by Mr. Talapatra that the seniority in TPS Grade-II is required to be maintained in TPS Grade-I. We are unable to accept this submission for more than one reason. An element of section is involved in the matter of promotion to TPS Grade-I. It also involves moving from one grade to another higher grade with higher pay scale. If the submission of Mr. Talapatra is to be accepted, same will lead to an anomalous situation. For example, if an incumbent occupying higher merit and consequential seniority position in TPS Grade-II is not found suitable for promotion to TPS Grade-I and his juniors in Grade-II are promoted to TPS Grade-I, can it be said that the said senior would still remain senior to his erstwhile juniors in TPS Grade-I. According to us, certainly not. We may take another example. If the said senior is subsequently promoted to TPS Grade-I than his juniors after one year or two years, can it be said that he will catch up with his erstwhile juniors in Grade-I, so as to claim the seniority over them which was obtaining in Grade-II. According to our view, certainly not. 36. Rule 28 of the rules of 1967 lays down the criteria for seniority. Such seniority is to be maintained in order of merit obtained in the merit list. The whole emphasis of the Petitioners-Appellants is on the expression: ...seniority in the service shall be determined by the order in which appointments are made to the service. Referring to the definition of service, it was submitted that irrespective of promotion from Grade-II to Grade-I (Selection Grade), such seniority in the Grade-II is required to be maintained. We have already noticed that the service consists of two grades, which are TPS Grade-II and TPS Grade-I (Selection Grade). Referring to the definition of service, it was submitted that irrespective of promotion from Grade-II to Grade-I (Selection Grade), such seniority in the Grade-II is required to be maintained. We have already noticed that the service consists of two grades, which are TPS Grade-II and TPS Grade-I (Selection Grade). The number of selection grade (Grade-I) posts of the service shall be 20% of the authorized permanent strength of the service. When an officer in TPS Grade-II is to earn his promotion to Grade-I on the basis of 'merit with due regard to seniority', it cannot be said that by application of the aforesaid Rule 28 irrespective of his position in the matter of promotion to the TPS Grade- I, he would maintain his seniority in TPS Grade-II. 37. An argument was made by Mr. S. Deb, learned Counsel representing the Respondent No. 6 that in absence of any challenge to the selection to TPS Grade-I, this Court will be reluctant to deal with the particular criteria adopted by the Selection Committee. We have carefully considered the said submission of Mr. Deb. The Petitioners-Appellants are aggrieved by fixation of their seniority below the Respondent No. 6 by the impugned seniority list published in 2006. Prior to that their seniority was fixed finally by notification dated 8.11.2004, which was after their promotion to TPS Grade-I. The seniority list was published under Rule 28 of the Rules. The Petitioners-Appellants were happy with their position in the said seniority list. However, an altogether different stand was taken by the Respondents in publishing the seniority list of 2006, which according to them was on the basis of the merit positions obtained in the selection for promotion to TPS Grade-I. 38. The basic grievance of the Petitioners-Appellants is the fixation of seniority on the basis of a wrong procedure adopted in the matter of selection for promotion to TPS Grade-I. Although, a submission was made that irrespective of promotion to TPS Grade-I, the seniority of the incumbent as existed in TPS Grade-I are required to be maintained, as discussed above, we are not impressed with the said submission. However, at the same time, the technical plea raised by Mr. However, at the same time, the technical plea raised by Mr. Deb, learned Counsel representing the Respondent No. 6 also cannot be accepted on the face of the glaring omission on the part of the official Respondents in conducting the selection for promotion to the post of TPS Grade-I. If the writ petition and for that matter the writ appeal is dismissed on such technical ground, there will be travesty of justice. 39. For all the aforesaid reasons, the writ appeal is partly allowed remanding the matter back to the authority for a fish consideration of the case of the incumbents by the Selection Committee applying the criteria of 'merit with due regard to seniority'. However, we make it clear that we have not set aside the promotion of Officers to the Grade-I of the Tripura Police Service and the fresh exercise of the Selection Committee will be only for the purpose of placement of the incumbents in the select list adopting the said criteria of 'merit with due regard of seniority' which will eventually determine their seniority position in TPS Grade-I. 40. The writ appeal is partly allowed to the extent indicated above leaving the parties to bear their own costs. Appeal partly allowed.