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2011 DIGILAW 26 (GAU)

Srutakriti Ghosh v. State of Tripura

2011-01-11

UTPALENDU BIKAS SAHA

body2011
ORDER U.B. Saha, J. 1. The instant writ petition is filed by the Petitioners, two in number, namely, (1) Smti Srutakriti Ghosh and (2) Smti Jharna Datta, who are working as U.D. Clerks and not yet promoted to the post of Head Clerk/Accountant on the ground that they did not complete the Accounts cum Administrative Training, as required under the relevant Recruitment Rules of Head Clerk/Accountant, for a direction to the Respondents to promote them to the post of Head Clerk/Accountant with effect from the date of promotion of their juniors i.e. Respondent Nos. 8 to 12, who are admittedly juniors to them and also to quash the order of promotion of the Respondent Nos. 8 to 12 to the post of Head Clerk vide order dated 23.03.2010 (Annexure-4 to the writ petition) along with other prayers. 2. Heard Mr. A.K. Bhowmik, learned senior counsel, assisted by Mr. R. Datta, learned Counsel, appearing for the Petitioners and Mrs. A.S. Lodh, learned Addl. Govt. Advocate, appearing for the State-Respondents. 3. As by this time, the parties have exchanged their respective affidavits and as agreed to by the learned Counsel, appearing for the parties as well as considering the nature of the writ petition, the same is taken up for final disposal at the Admission stage. 4. The Petitioner Nos. 1 and 2 were appointed as Lower Division Clerk under the District Administration, Govt. of Tripura, w.e.f. 16.12.1974 and 30.04.1976 respectively and, thereafter, they were promoted to the post of Upper Division Clerk w.e.f. 17.06.2003 and 30.06.2003 respectively and till filing of the writ petition, they are working as U.D. Clerks. 5. As per the provisions of Recruitment Rules for promotion to the post of Head Clerk/Accountant, feeder post is UDC with at least 5 years experience in the grade and the Accounts training conducted by the State Government is required. For undergoing Accounts training as required under the Recruitment Rules, the State Government also framed a Rule, namely, the Tripura Accounts Cum Administrative Training Rules, 1998 (for short 'the Rules, 1998'). In the said Rules, 1998, it is indicated that these Rules are applied to the post of UDC, which is held by the Petitioner for getting promotion to the post of Head Clerk/Accountant as shown under Rule 3(iii) of the Rules, 1998. In the said Rules, 1998, it is indicated that these Rules are applied to the post of UDC, which is held by the Petitioner for getting promotion to the post of Head Clerk/Accountant as shown under Rule 3(iii) of the Rules, 1998. It is also provided under Rule 11 of the Rules, 1998, that promotion from the feeder grade cannot be given till the examination is passed after successful completion of Accounts training. There is a note appended to Rule 11 of the Rules,1998, from which it appears that the requirement of passing the qualified Accounts training would not apply in case of temporary promotion. Under Rule 9 of the Rules, 1998, the rule making authority prescribed the procedure for selection of trainees, wherein it is stated that the selection of trainees shall be on the basis of seniority and an individual Department of the Government shall prepare a panel of trainees on the basis of seniority and sponsor the names of trainees as and when requested by the Finance Department. In the aforesaid Rules also, there is an exemption clause as evident from Rule 10 of the Rules, 1998. Rule 10 is reproduced hereunder as that would be a beneficial one for coming to a proper decision: 10. Exemption: a) The following categories of Govt. servants shall be exempted from the examination: i) Government servants who have passed the SAS examination of Indian Audit and Accounts Department; ii) Qualified Divisional Accountants (i.e. those who have passed the Divisional Accounts' Examination and posted as such by the Accountant General to various Public Works Divisions); iii) Government servants who have duly passed the Accounts Training examination conducted earlier by the Accountant General, Assam/Tripura; iv) An employee for whom successful completion of the training under these Rules is obligatory may be exempted from the operation of these Rules on his/her attaining the age of 55 yrs. If he could not avail of or successfully completed the Training under these Rules. v) Under any special circumstances the Governor may exempt any Government servant from these examination. b) The employees who are exempted under Sub-rule (a) of this Rule shall have all benefits under these Rules except that provided for under Sub-rule (a) of Rule 11. 6. If he could not avail of or successfully completed the Training under these Rules. v) Under any special circumstances the Governor may exempt any Government servant from these examination. b) The employees who are exempted under Sub-rule (a) of this Rule shall have all benefits under these Rules except that provided for under Sub-rule (a) of Rule 11. 6. The writ Petitioners, in their writ petition, specifically pleaded that the provision of Rule 9 of the Rules, 1998, prescribed that the selection of trainees should be on the basis of seniority and Rule 10 of the said Rules,1998 provides for exemption of trainees and, inter alia, provision that under any special circumstances, the Governor may exempt a Government servant from this training. It is specifically pleaded that below Rule 11 of the Rules, 1998, there is a note, wherein it is prescribed that the provision of Rule 11 does not restrict temporary promotion to the posts grouped under Clause (iii) of Sub-rule (a) of Rule 3. It is further pleaded in paragraph-10 of the writ petition, inter alia, that "there were vacant posts of Head Clerk/Accountant in the Un-reserved quota and consequently your Petitioners were entitled to be considered for promotion and entertained in the available vacancies on the basis of the existing Recruitment Rules. It is evident that the Respondent Nos. 8 to 12 were illegally selected for in-service training in violation of Rule 9 of Tripura Accounts cum Administrative Training Rules, 1998, ahead of the Petitioners and by the back of the Petitioners. The Petitioners cannot be made to suffer in as much as the Respondent No. 8 to 12 were sent for training ahead of the Petitioners by superseding their seniority on the basis of illegal selection by pick & chose policy." It is further stated that, in the Rules,1998, there is no such provision by which the promotion of the Petitioners who are holding the post of U.D. Clerk to the post of Head Clerk/Accountant, can be held up for not acquiring the in-service training. The further case of the Petitioners in their writ petition is that the instant case is fully covered by a judgment of this Court in W.P.(C) No. 231 of 2008, wherein a coordinate Bench of this Court, while allowing the writ petition, noted, inter alia, that ...selection for training and training itself, is to be imparted by the authorities and it is only for the default of the Government authorities, the Petitioners has been deprived of acquiring the qualification of accounts training... 'since posts are stated to be vacant, the authorities may make arrangement for sending the Petitioners and other similarly situated persons for training and promotion are considered favourably as a temporary measure, the accounts training may be provided even after promotion is given with the rider that unless training is successfully concluded, promotion would be temporary and would not be regularised'.... 7. The State-Respondents, by filing counter-affidavit, though admitted that the Petitioners are senior than the private Respondent Nos. 8 to 12, but denied the allegations of the Petitioners stating, inter alia, that the Petitioners were not provided training being they were not opted for the same by way of giving their consent. 8. Mr. Bhowmik, learned senior counsel, appearing for the Petitioners, while urging for the relief sought for, at the outset, submits that the question involved in the instant case is a simpliciter as the same has already been decided by this Court and is covered by the decision of this Court in W.P.(C) No. 231 of 2008 as well as the subsequent decision of this Court in W.P. (C) No. 93 of 2010 Sri Anil Chakraborty v. The State of Tripura and Ors.. His further contention is that the authority, who usually sending the persons from the feeder post of Head Clerk/Accountant, for Accounts cum Administrative Training in view of the Rules, 1998, are, in fact, doing injustice to the persons like the Petitioners and other similarly situated persons by mis-appreciating the provisions of the Rules particularly, Rule 9 of the Rules, 1998, wherein the Rule making authority prescribed the procedure for selection of trainees. He further contended that selection of trainees shall be on the basis of seniority and the individual Department of the Government shall prepare a panel of trainees on the basis of seniority and sponsor the name of trainees as and when requested by the Finance Department. He further contended that selection of trainees shall be on the basis of seniority and the individual Department of the Government shall prepare a panel of trainees on the basis of seniority and sponsor the name of trainees as and when requested by the Finance Department. On receipt of the names of the sponsored candidates for training, the final selection list shall be prepared by the Finance Department. In the instant case, though the Respondents take a plea in their counter-affidavit, inter alia, that the Petitioners were not opted for the said training and unless they consented/opted, the Respondent authority are not in a position to send them for Accounts cum Administrative training, as required under the Rules, 1998, which is wholly incorrect. The learned senior counsel, further contended that the Respondents not only mis-appreciated the provisions of the Rules, 1998, they also misinterpreted the Memorandum dated 08.05.2007. In para-8 of the aforesaid Memorandum, it is specifically stated that, a consent letter must be obtained from the employee concerned whose name is sponsored by the Department for the course. Fact remains, the name of the Petitioners were never sponsored and, therefore, the consent on their part as required under the said Memorandum does not apply in the instant case. Mr. Bhowmik, learned senior counsel, in his usual fairness, also submits that, quashing of promotion order in respect of Respondent Nos. 8 to 12 will not otherwise help the Petitioners herein as the Petitioners' main grievance is that they were superseded by the Respondent Nos. 8 to 12 for the ill action of the authority and pick and chose policy. He further submitted that, if the Petitioners are given promotion from the date when their juniors were promoted, then it would not be necessary for this Court to quash the order of promotion in respect of Respondent Nos. 8 to 12. 9. Mrs. Sharma Lodh, learned Addl. Govt. Advocate, appearing for the State-Respondents, while responding to the contention of Mr. Bhowmik, learned senior counsel, appearing for the Petitioners, would contend that the issue involved in the instant case is almost covered by the order of this Court as stated supra, except the matter how and in what manner the Memorandum dated 08.05.2007, particularly paragraph-8 of the said Memorandum would be interpreted by the authority. 10. Bhowmik, learned senior counsel, appearing for the Petitioners, would contend that the issue involved in the instant case is almost covered by the order of this Court as stated supra, except the matter how and in what manner the Memorandum dated 08.05.2007, particularly paragraph-8 of the said Memorandum would be interpreted by the authority. 10. In view of the above, it is not necessary on the part of this Court to go for a detailed discussion, as in the case of W.P. (C) No. 93 of 2010 Sri Anil Chakraborty v. The State of Tripura and Ors. this Court made an elaborate discussion regarding the applicability of the provisions of the Rules,1998. However, as Mrs. Sharma Lodh, learned Addl. Govt. Advocate, has raised the question regarding the nature of applicability of para-8 of the Memorandum dated 08.05.2007, it is necessary for this Court to express its views accordingly. 11. It is stated that, consent letter from an employee who are holding the post of U.D. Clerk, would be required for the purpose of Accounts cum Administrative training, only after preparation of the select list of the trainees under the provisions of Rule 9 of the Rules, 1998. Unless the list of trainees is prepared and asked for consent by the concerned Department, how the employees like the writ Petitioners would express their consent and willingness for the training as required under the Rules, 1998. As in the counter-affidavit, the State-Respondents did not deny the allegations of the Petitioners made in paragraph-10 of the writ petition, it can be presumed that the allegations of the Petitioners, inter alia, that the Respondent Nos. 8 to 12 are illegally selected for in-service training in violation of Rule 9 of the Rules, 1998, ahead of the Petitioners and by the back of the Petitioners are admitted. The Respondents also did not annex any document showing that the concerned Department has prepared a list, incorporating the names of the Petitioners for the Accounts cum Administrative training. In view of the above, according to this Court, the said actions of the Respondents are not only unfair but also arbitrary. Furthermore, it appears from the minutes of the DPC meeting held on 10.12.2009 for consideration of promotion of Group 'C' and Group 'D' staff under the District Administration, that the names of the writ Petitioners were also recommended for promotion to the post of Head Clerk. Furthermore, it appears from the minutes of the DPC meeting held on 10.12.2009 for consideration of promotion of Group 'C' and Group 'D' staff under the District Administration, that the names of the writ Petitioners were also recommended for promotion to the post of Head Clerk. Also in the list of U.D. Clerk, whose names were considered by the DPC and proposed for promotion, the names of both the Petitioners are available at Sl. Nos. 44 and 47 respectively, whereas the name of the Petitioner in W.P.(C) No. 93/2010 i.e. Sri Anil Chakraborty is available at Sl. No. 57 and the Respondent Nos. 8 to 12 are even placed below than the aforesaid Sri Anil Chakraborty. Therefore, in that view also the present writ Petitioners were deprived from their right for consideration of their promotion to the next higher post i.e. Head Clerk/Accountant. As in W.P.(C) No. 231/2008 and in W.P(C) No. 93/2010, this Court allowed the grievance of the Petitioners therein, it would not be proper for this Court to deny the similar prayer of the writ Petitioners herein. 12 Accordingly, the State-Respondents are directed to consider the case of the writ Petitioners for temporary promotion to the post of Head Clerk/Accountant even in absence of their completion of Accounts cum Administrative Training, from the date of consideration of his juniors i.e. Respondent Nos. 8 to 12 to the post of Head Clerk/Accountant, within a period of 2(two) months from the date of receipt of this order. 13. With the above observations and directions, the instant writ petition is closed.