Research › Search › Judgment

Gauhati High Court · body

2010 DIGILAW 740 (GAU)

Ranjit Kr. Bhattacharjee v. State of Tripura

2010-09-18

BROJENDRA PRASAD KATAKEY

body2010
JUDGMENT B.P. Katakey, J. 1. The Petitioner, who is serving as Superintendent of Physical Education (Group-B Gazetted), by the present petition has prayed for a direction to the Respondent authorities to give the financial benefit with effect from 5th November, 1990, pursuant to his promotion from Physical Instructor (Selection Grade) under the Education Department (Youth Affairs and Sports), Government of Tripura, in view of the judgment and order dated 22nd July, 1998 passed in Civil Rule No. 319/1990. 2. The Petitioner while was working as Physical Instructor in the Education Department of Government of Tripura, approached this Court in Civil Rule No. 319/1990 challenging the order dated 31st August, 1990 promoting Smti. Seba Chowdhury, Sri Jiban Krishna Bhattacharjee and Sri Khiti Ranjan Bhattacharjee to the promotional post of Superintendent of Physical Education on the ground that his case was not considered while promoting the said employees though they were junior to him in the cadre of Physical Instructor. The said writ petition was allowed by a Single Bench of this Court vide judgment dated 22nd July, 1998 by directing the State Respondent "to consider the case of the Petitioner for promotion to the post of Supdt. of Physical Education on or before the date on which 6th, 7th and 8th Respondents have been promoted to the post of Supdt. of Physical Education", without, however, setting aside the promotion of the aforementioned persons, who were impleaded as Respondent Nos. 6, 7 and 8 in the said writ petition. The State Respondent, pursuant to the said direction issued in the aforesaid writ petition, considered the case of the Petitioner for promotion and accordingly a supernumerary post of Superintendent of Physical Education was created on 26th April, 1999 and the Petitioner was appointed on promotion to the said post on ad-hoc basis with effect from 5th November, 1990. The services of the Petitioner, however, was subsequently regularised in the said post, on the basis of the recommendation of the Tripura Public Service Commission, vide notification dated 14th February, 2000. The salary of the Petitioner, on such promotion, however, was fixed notionally with effect from 5th November, 1990, i.e. the date when his juniors were promoted to the post of Superintendent of Physical Education (Group-B Gazetted), and allowing the cash benefit of pay and other allowances with effect from the date of his joining, which is 28th May, 1999. The salary of the Petitioner, on such promotion, however, was fixed notionally with effect from 5th November, 1990, i.e. the date when his juniors were promoted to the post of Superintendent of Physical Education (Group-B Gazetted), and allowing the cash benefit of pay and other allowances with effect from the date of his joining, which is 28th May, 1999. The Petitioner, therefore, has filed the present writ petition claiming differences of salaries with effect from 5th November, 1990 on the ground that since he was deprived form promotion by the State Respondent, for no fault of his, he is entitled to such differences of salary with effect from 5th November, 1990, in terms of the judgment and order dated 22nd July, 1998 passed in Civil Rule No. 319/1990. 3. I have heard Mr. S. Talapatra, the learned Sr. Counsel for the Petitioner and Ms. A.S. Lodh, the learned Additional Government Advocate appearing for the Respondent. 4. Mr. Talapatra, the learned Sr. Counsel appearing for the Petitioner referring to the judgment and order dated 22nd July, 1998 passed in Civil Rule No. 319/1990 has submitted that since a Single Bench of this Court having found that the illegality was committed to the Petitioner in not considering his case for promotion to the post of Superintendent of Physical Education while considering the cases of his juniors, directed the State Respondent to consider the case of the Petitioner for promotion with effect from the date when his juniors were promoted and the authority having considered the Petitioner's case in terms of the directions issued by the aforesaid judgment found him suitable for promotion and accordingly promoted him to the said post with effect from 5th November, 1990, i.e. the date when his juniors were promoted, the State Respondent cannot deprive the Petitioner from the salary of Superintendent of Physical Education, as he was found to be legally deprived from such promotion, for no fault of his. The learned Counsel, therefore, submits that necessary direction may be issued to the Respondent authority to pay financial benefit to the Petitioner in the promotional post with effect from 5th November, 1990. 5. The learned Counsel, therefore, submits that necessary direction may be issued to the Respondent authority to pay financial benefit to the Petitioner in the promotional post with effect from 5th November, 1990. 5. The learned State Counsel, on the other hand, referring to the affidavits-in-opposition filed has submitted that though the authority, pursuant to the direction contained in the judgment and order dated 22nd July, 1998 passed in Civil Rule No. 319/1990, considered the case of the Petitioner for promotion to the post of Superintendent of Physical Education and having found him fit and suitable for promotion, promoted him with effect from 5th November, 1990, i.e. the date when his juniors were promoted, no financial benefit from 5th November, 1990 was granted to the Petitioner in the promotional post due to non availability of a post on 5th November, 1990 and as supernumerary post was created vide order dated 26th April, 1999, more so when the promotion of the persons junior to the Petitioner, which though challenged in the earlier writ proceeding was not interfered with. According to the learned State Counsel, the Respondent authority while notionally fixing the pay of the Petitioner in the promotional post with effect from 5th November, 1990 has allowed him to draw the salary in the promotional post with effect from the date of his joining. According to the learned State Counsel, the financial benefit to the Petitioner in the promotional post could not be granted for 2 (two) reasons, namely, non availability of a post with effect from 5th November, 1990 till the creation of the supernumerary post on 26th April, 1999 and as the Petitioner has joined the promotional post on 28th May, 1999, he is entitled to the financial benefit in the promotional post from such date of joining and having not rendered the services in the higher post till then. 6. I have considered the submissions of the learned Counsel for the parties and also perused the pleadings. I have also perused the judgment and order dated 22nd July, 1998 passed in Civil Rule No. 319/1990. 7. 6. I have considered the submissions of the learned Counsel for the parties and also perused the pleadings. I have also perused the judgment and order dated 22nd July, 1998 passed in Civil Rule No. 319/1990. 7. The State Respondent having accepted the directions issued by this Court vide judgment and order dated 22nd July, 1998 passed in Civil Rule No. 319/1990 had considered the case of the Petitioner for promotion to the post of Superintendent of Physical Education (Group-B Gazetted) from the date when his juniors were promoted and having found the Petitioner fit and suitable, promoted him with effect from 5th November, 1990, i.e. the date when his juniors were promoted. It is also evident from the aforesaid judgment and order dated 22nd July, 1998 that the Petitioner was illegally deprived from consideration for promotion to the post of Superintendent of Physical Education while considering the cases of his juniors and promoting them. The Petitioner had approached this Court in Civil Rule No. 319/1990 challenging the order of promotion of his juniors dated 31st August, 1990 immediately after passing of such order. The said writ petition, however, was decided on 22nd July, 1998. Had the writ petition been decided early, which was not possible, as the business of the Court did not permit so, the Petitioner would have got the financial benefit in the promotional post from an interior date. It also appears from the aforesaid judgment and order passed in the aforesaid writ petition that the delay was not because of the fault of the Petitioner and rather he was illegally deprived from consideration for promotion. It was in fact because of the fault or lapses on the part of the Respondent authority the Petitioner was deprived from promotion while his juniors were promoted with effect from 5th November, 1990. Such fault or the mistake has been rectified by the Respondent authority by promoting the Petitioner with effect from 5th November, 1990 vide order dated 18th May, 1999 by creating a supernumerary post on 26th April, 1999, initially on ad-hoc basis and thereafter, on regular basis. 8. Such fault or the mistake has been rectified by the Respondent authority by promoting the Petitioner with effect from 5th November, 1990 vide order dated 18th May, 1999 by creating a supernumerary post on 26th April, 1999, initially on ad-hoc basis and thereafter, on regular basis. 8. Since the Petitioner was deprived from his legitimate claim for consideration of his promotion, as found by this Court by the aforesaid judgment dated 22nd July, 1998, for no fault of his but because of the fault or lapses on the part of the Respondent authorities, he cannot be denied the financial benefit of his promotion with effect from 5th November, 1990, i.e. the date when his juniors were promoted, as had his case been considered along with his juniors he would have enjoyed such benefit with effect from 5th November, 1990. There is also no reason why the Government did not create the supernumerary post with effect from 5th November, 1990 when such post could be created on 26th April, 1999, so as to give the financial benefit in the promotional post with effect from 5th November, 1990. In non of the affidavits-in-opposition filed, no reason has been cited in that regard. The Petitioner cannot be made to suffer for the illegal act of the State Respondent in depriving him from promotion to the post of Superintendent of Physical Education (Grade-B Gazetted). 9. In view of the above, the writ petition is allowed. The Respondent authority is directed to pay the Petitioner the financial benefit in the promotional post of Superintendent of Physical Education with effect from 5th November, 1990. The differences of the salary shall be paid to the Petitioner within 1 (one) month from today. 10. The writ petition is accordingly allowed. No cost. Petition allowed