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2012 DIGILAW 1026 (GAU)

Nikhil Ranjan Chakraborty v. Brajendra Tripura

2012-08-30

SWAPAN CHANDRA DAS, UTPALENDU BIKAS SAHA

body2012
JUDGMENT U.B. Saha, J. 1. These writ appeals are filed against the common judgment and order dated 27.7.2012 passed by the learned Single Judge in WP(C) 104 of 2012, WP(C) 105 of 2012 and WP(C)106 of 2012 whereby and where-under the writ petitions of the respondent-writ petitioners were allowed. Heard Mr. A.K, Bhowmik, learned Sr. Counsel assisted by Mr. R. Datta, learned counsel appearing for the appellants in all the aforesaid appeals. 2. The appellants herein were the private respondents in these writ petitions. Initially, when the writ petitions were filed by the respondent writ petitioners, the present appellants were not made party, but subsequently on their applications they were added as respondents. 3. As the facts and the question of law as well as the judgment impugned are common in nature, all these writ appeals are taken up for disposal by this common judgment and order. 4. It would be proper on our part to narrate the undisputed facts, which are as follows:- The writ petitioner-respondents were holding the feeder posts for promotion to the post of TCS Grade-II under the Tripura Civil Services Rules, 1967 (shortly called, TCS Rules, 1967) before the said Rules underwent 28th amendment. The amendment came into force on 19.12.2011. Prior to aforesaid 28th amendment of the TCS Rules, 1967, 58 vacancies were admittedly available for promotion to the post of TSC Grade-II as assessed by the Department concerned and for filling up the said 5 8 promotional vacancies in TCS Grade-II, the Department took steps which received approval of the Secretary, General Administration (Personal & Training) Department and then, the Principal Secretary of the said Department. The decision for filling up the aforesaid 58 promotional vacancies in TCS Grade-II also received approval of the Chief Secretary, Government of Tripura as well as the approval of the Chief Minister of Tripura on 15.11.2011. Though the decision for filling up the said 58 promotional vacancies in TCS Grade-II was taken up on 15.11.2011, but the said decision was not materialized. Thereafter, a selection committee was constituted vide notification dated 24.11.2011 by the General Administration (Personal & Training) Department for appointment to the post of TCS Grade-II against the promotion quota. Though the decision for filling up the said 58 promotional vacancies in TCS Grade-II was taken up on 15.11.2011, but the said decision was not materialized. Thereafter, a selection committee was constituted vide notification dated 24.11.2011 by the General Administration (Personal & Training) Department for appointment to the post of TCS Grade-II against the promotion quota. When the said Selection Committee was proceeding for taking steps to fill up the posts of TCS Grade-II against the promotion quota, the aforesaid TCS Rules, 1967 went on 28th amendment on 19.12.2011 (Annexure-P/6 to the writ petition). Thereafter, vide notification dated 29.02.2012 (Annexure-P /9 to the writ petition), Government took a decision for filling up the posts of TCS Grade-II against the promotion quota by the eligible officers holding the feeder posts of TCS Grade-II included by way of amendment. As prior to enforcement of 28th amendment of the TCS Rules, 58 promotional vacancies were admittedly available for promotion to the post of TCS Grade-II, as assessed by the Department concerned, the respondent-writ petitioners approached the Court for filling up those posts, from the eligible candidates holding feeder posts before the amendment. 5. Being aggrieved by the said decision of the Government, the writ petitioners filed their respective writ petitions being WP(C) 104 of 2012, WP(C) 105 of 2012 and WP(C) 106 of 2012 mainly raising the question that when the Government has taken their conscious decision for filling up 58 promotional vacancies in TCS Grade-II from the persons holding the feeder posts, at that relevant time i.e. before amendment of the Rules, no other person can be considered except the persons who were eligible for promotion in TCS Grade-II before the 28th amendment of the TCS Rules, and also seeking to fill up the said 58 promotional vacancies by applying the provisions of Rules in force prior to the 28th amendment of TCS Rules, as the notification/letter dated 29.02.2012 is wholly illegal and unfair. On the other way, the contentions of the writ petitioners before the writ court was that it is the settled position of law, particularly the Service Jurisprudence which requires filling up of promotional vacancies by applying the relevant Service Rules as on the date when the vacancy arose unless prior to the amendment of the relevant Service Rules, a conscious decision has been taken not to fill up the vacancies and/or a decision has been taken to fill up the vacancies which are so arisen only after amendment of the Rule concerned. 6. The State-respondents contested the writ petitions by filing counter contending that the last meeting of the Selection Committee was held on 03.03.2011 in the Office chamber of the Chairman, TSC for consideration of the cases of eligible officers for promotion to the post of TCS Grade-II. In the said counter, it has also been stated that there is no right of promotion available to an employee, but he has a right to be considered for promotion the same being a fundamental right and there is no rule of universal pr absolute application that vacancies are to be filled up invariably by the law existing on the date when, the vacancy arises. 7. The learned Single Judge after hearing the learned counsel of the parties and taking note of various decisions cited by them held that impugned notification/letter dated 29.02.2012 is required to be set aside and quashed. Accordingly, the same has been set aside and quashed. 8. Being aggrieved by the said decision of the learned Single Judge, the present appeals have been preferred by the appellants, who are the private respondents in the aforesaid writ petitions. 9. Mr. Bhowmik, learned Sr. Counsel while urging for admitting the appeals would contend that learned Single Judge has not considered the point, inter alia, that by way of amendment none of the writ petitioners has been deprived from their right to be considered for promotion to the post of TCS Grade-II against the 58 promotional vacancies. He further submits that consideration for promotion is a fundamental right, but the chance of promotion is not a right. Thus, the learned Single Judge has committed error while quashing the impugned notification/letter dated 29.02.2012. He further submits that the learned Single Judge has also failed to apply the ratio of the decision of the Apex Court in Deepak Agarwal & Anr. Vs. Thus, the learned Single Judge has committed error while quashing the impugned notification/letter dated 29.02.2012. He further submits that the learned Single Judge has also failed to apply the ratio of the decision of the Apex Court in Deepak Agarwal & Anr. Vs. State of Uttar Pradesh & Ors., (2011) 6 SCC 725, particularly paragraph-26 of the said report wherein the Apex Court specifically stated that the right to be considered for promotion accrues on the date of consideration of the eligible candidates and in the instant case when the State Government is going to fill up the posts after 28th amendment of the TCS Rules, the present appellants whose posts were included as feeder posts for promotion to the TCS Grade-II are very much eligible for consideration. Thus, their rights to be considered for promotion cannot be taken away by any authority including a Court of law, unless they are debarred from consideration as per the rules applicable to them. 10. We have gone through the judgment of the learned Single Judge by which three writ petitions were disposed of and which is impugned in these appeals. 11. It appears from the judgment that the question arose for decision before the learned Single Judge was as to whether the post held by a person included in the amended rules as a feeder post for promotion to the TCS Grade-II post can be considered for promotion against the vacancies which arose prior to the amended rules came into force or whether consideration of promotion can be limited within the eligible persons holding the feeder post prior to the 28th amendment of the rules when conscious decision was taken by the authority for filling up the promotional vacancies before amended rules came into force. 12. 12. For deciding the aforesaid question, the learned Single Judge in his decision, particularly in paragraph-13 discussed the reasons for impugning the letter dated 29.02.2012 by the petitioners which are as follows:- Closely following the 28th amendment, introduced by the notification, dated 19.12.2011, aforementioned, a letter, dated 29.02.2012, has, however, been issued by the General Administration (Personal and Training) Department, Government of Tripura, to the rest of the Departments concerned stating to the effect, inter alia, that by 28th Amendment of TCS Rules, 1967, some posts have been incorporated in the feeder posts of TCS Grade-II against promotional quota and, hence, information/particulars of eligible officers holding the feeder posts of TCS Grade-II not less than 5 years of regular service, be sent to the Department concerned in the proforma enclosed therewith, i.e., the letter, dated 29.02.2012. It is this letter, dated 29.02.2012, aforementioned, which stands impugned by the petitioners. 13. The learned Single Judge also noted the submission of State-respondents, particularly the submission of learned Advocate General which will be evident from paragraphs-17, 18 and 19 which are as follows:- 17. The State respondents also contend that there is no fundamental right for promotion available to an employee, but he has only a right to be considered for promotion. 18. What needs to be, now, recalled is that after the Note, dated 15.11.2011, was given by the Chief Minister of Tripura, approving the decision to fill up all the 58 promotional vacancies of TCS, Grade-II, the Secretary, GA (P&T) Department, vide his Note, dated 28.11.2011, had sent back the file to the Deputy Secretary, GA(P&T) Department, pointing out the above decision of the Chief Minister of Tripura and directing him to send all the relevant papers to the Tripura Public Service Commission in order to initiate selection process for filling up the said 58 promotional vacancies, whereupon the Deputy Secretary, GA (P&T) Department, vide his Note, dated 29.11.2011, sent back the file to the Office Superintendent, G A (P&T) Department, for necessary action from his end. However, the said authority, in utter disregard of the directions issued unto him, retained the file, in his desk, without consigning the same to its destination and, as a result thereof, in spite of the decision of the Govt. However, the said authority, in utter disregard of the directions issued unto him, retained the file, in his desk, without consigning the same to its destination and, as a result thereof, in spite of the decision of the Govt. of Tripura, the scheduled processing of the file was delayed inordinately instead of carrying out the decision of the State Government, as stood approved by the Chief Secretary and also the Chief Minister of the State. In tune with the decision, so taken by the State Government, the opinion of the Law Department was sought for and the Deputy Secretary, DLR & Deputy Secretary, Law Department, Government of Tripura, vide his Note, dated 24.01.2012, suggested to fill up all the vacancies by applying the un-amended Rules. Notwithstanding, however, the said conscious decision of the State Government, later on, the LR & Secretary, Law Department, vide his Note, dated 21.2.2012, suggested to fill up the said vacancies, by applying the 28th Amendment of the TCS Rules. It is submitted by the present petitioners that only in furtherance of the said wrong opinion, expressed by the LR & Secretary, Law Department, the impugned order, dated 29.02.2012, has been issued. 19. Since, admittedly, no material has been laid by the respondents to even faintly show that there was any conscious decision, taken by Government, not to fill up the earlier 58 vacancies, which had arisen upto 23.11.2011, by applying the TCS Rules, 1967, as the same existed before the TCS Rules, 1967, underwent amendment by notification, dated 19.12.2011, and when there is also no material on record showing any conscious decision having been taken by the Government to fill up the said 58 promotional vacancies of TCS, Grade-II, by only applying the amended rules, the petitioners rightly contend that there cannot be any justifiable logic to apply the 28th Amendment of the TCS Rules for filling up the said 58 promotional vacancies. 14. 14. It also appears that the learned Single Judge while taking into consideration the submission of the learned counsel of the parties and the law Reports cited by them noted, inter alia, that from the above judicial pronouncements, what clearly emerges is that if a vacancy arises prior to the amendment of Recruitment Rules and the amendment is prospective in nature, then, unless the Government had taken a conscious decision not to fill up such a vacancy by applying the un-amended rules and/or to fill up the vacancies by only amending the rules or by amended rules, the vacancy, which arose before amendment of the Rules, has to be filled up by applying the pre-amended Rules, meaning thereby, the learned Single Judge has taken note of both amended Rules as well as un- amended Rules. 15. The learned Single Judge also considered a decision of the Apex Court in the case of Deepak Agarwal & Ors. (supra) as relied upon by Mr. Bhowmik which would be evident from paragraph-39 of the impugned judgment which are as follows:- 26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the "rule in force" on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y. V. Rangaiah case (1983) 3 SCC 284 lays down any particular timeframe, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants has been taken away by the amendment. 16. Mr. Bhowmik has tried to convince us that though the learned Single Judge took note of Deepak Agarwal (supra), but did not give any reason why the ratio of the said decision would not apply in the case in hand. 17. 16. Mr. Bhowmik has tried to convince us that though the learned Single Judge took note of Deepak Agarwal (supra), but did not give any reason why the ratio of the said decision would not apply in the case in hand. 17. There is no doubt that the learned Single Judge did not go for detailed reasoning, but it cannot be said that he has not discussed the said decision while passing the impugned judgment. However, as the said decision is placed before us again, we have also gone through the paragraph-26 of the said decision. In that decision also, the Apex Court said that the right to be considered for promotion accrues on the date of consideration of the eligible candidates. More so, from paragraph-12 of Deepak Agarwal & Ors. (supra), it also appears that in that case, no conscious decision had been taken up for filling up the vacancies under the provisions of un-amended Rules. But in the instant case, a conscious decision has been taken by an authority not less than the Chief Minister of the State for filling up 58 promotional vacancies before the 28th amendment of TCS Rules came into force. Thus, the fact of that case and the case in hand is totally different. Hence, it can be said that the learned Single Judge rightly stated that the said decision has no application. 18. In the present case, it appears from the record that a conscious decision was taken by the Government on 15.11.2011 to fill up 58 promotional vacancies, and consequent to that decision, a Selection Committee was constituted on 24.11.2011 for consideration of cases of eligible officers who were holding the feeder posts in Grade-A and Grade-B of the Schedule 4 of Tripura Civil Services Rules for appointment to the posts of TCS Grade-II against promotion quota. Admittedly, on that date the present appellants were even not borne in the zone of consideration i.e. the feeder post and their right to be considered for promotion to the TCS Grade-II only arose just after 28th amendment came into force, i.e. on 19.12.2011, not prior to that. Admittedly, on that date the present appellants were even not borne in the zone of consideration i.e. the feeder post and their right to be considered for promotion to the TCS Grade-II only arose just after 28th amendment came into force, i.e. on 19.12.2011, not prior to that. Though the Government did not take any decision for filling up the posts within a particular time frame, but obviously on conjoint reading of the conscious decision of the Government taken on 15.11.2011, and consequent thereto constitution of Selection Committee, it can be said that the initial decision of the Government was for considering the case of the eligible officers who were holding the feeder posts on or before 15.11.2011. 19. Thus, according to us, the learned Single Judge did not commit any wrong. More so, admission of writ appeal is not a matter of right, like Civil First Appeal or Criminal Appeal, but when a prima facie case is made out for examining the judgment and order of the learned Single Judge, then only the Court should admit the appeal for hearing. Even if the opinion of the learned Single Judge is erroneous then also the Appellate Court cannot interfere with the order of the learned Single Judge unless it is totally perverse and violative of provisions of law. At the time of admission of appeal, the Appellate Court should be more cautious to examine the prima facie merit of the appeal and when there is no prima facie merit in an appeal, the Court should avoid admitting the same. (See: Sonaram Baruah & Anr. Vs. Assam State Electricity Board & Ors. 2010 (5) GLT 713: (2011) 2 GLR 630). 20. In the instant case, according to us, the learned counsel of the appellants failed to make out a prima facie case, even for examining the judgment impugned for admission of appeal, far less to speak of any interference. 21. Thus, we are constrained to dismiss these writ appeals, as the appellants failed to make out even a prima facie case for admission of the instant writ appeals, more so, we are again of the opinion that the order of the learned Single Judge does not call for any interference. 22. In the result, the writ appeals are dismissed. No order as to costs. Appeal dismissed.