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2012 DIGILAW 411 (GAU)

Mihir Singha Roy v. State of Tripura

2012-03-29

BIPLAB KUMAR SHARMA, PRASANTA KUMAR SAIKIA

body2012
JUDGMENT Sharma J. 1. Heard Mr. P. Roy Barman, learned counsel, appearing for the petitioner as well as Mr. S. Chakraborty, learned Additional GA, appearing for the State-respondents. By means of this writ petition, the petitioner has prayed for setting aside and quashing of the gradation list, which were published way back in 1996 and 1998. The said seniority list is in respect of Lower Division Clerk (L.D.C) in the establishment of the District & Sessions Judge, West Tripura, Agartala. When the petitioner made representation against the fixation of seniority in the said gradation lists, the Registry of this Court intimated the petitioner vide Annexure-K, letter dated 21.02.2008 that his seniority position at Serial No. 76 in the final seniority list published on 08.05.1998 would remain unaltered. The said order is not under challenge. 2. This writ petition was filed on 30.05.2008 i.e. after 12 and 10 years of publication of the gradation lists in 1996 and 1998. On the other hand, the petitioner has also chosen not to challenge the order of rejection of this representation dated 21.02.2008 (Annexure-K). 3. Briefly stated the facts leading to filing of the instant writ petition are that the petitioner was appointed as a Lower Division Clerk (L.D.C) vide appointment Order dated 01.04.1981. He was so appointed in the establishment of the District & Sessions Judge, South Tripura, Udaipur. His service was confirmed by Order dated 20.02.1991 issued by the District & Sessions Judge, West Tripura, Agartala. In the gradation list as on 01.11.1996, the petitioner was shown at Serial No. 78 above the private respondents. It will be pertinent to mention here that the petitioner was appointed as a reserved category candidate (S.T) as at the time of his appointment, he belonged to the said category. However, pursuant to the Judgment of the Apex Court reported in AIR 1990 SC 991 (Srish Kumar Choudhury vs. State of Tripura and others), the 'Laskar' community to which the petitioner belonged to, ceased to be a reserved category (S.T) and consequently, the petitioner also lost the said status. 4. As noted above in the gradation list as on 01.11.1996, the petitioner was shown at Serial No. 78 while the private respondents were shown at Serial No. 77, 79, 80, 81,82, 85, 86, 87, 89, 91, 92, 93, 95, and 96 respectively. 5. 4. As noted above in the gradation list as on 01.11.1996, the petitioner was shown at Serial No. 78 while the private respondents were shown at Serial No. 77, 79, 80, 81,82, 85, 86, 87, 89, 91, 92, 93, 95, and 96 respectively. 5. Another gradation list was published vide Memorandum dated 14.07.1997 and in the said gradation list, the petitioner was shown at Serial No. 7 under the head "Examination held on 04.01.81 and 15.01.1981. Results published on 02.03.1981." It will be pertinent to mention here that the said seniority list was a draft one and was prepared on the basis of the merit positions occupied by the candidates, who had appeared in different examinations pertaining to the post of L.D.C. 6. After the aforesaid development, the final gradation list was published vide Annexure F, Memorandum dated 26.02.1998 in which also the petitioner was placed at Serial No. 7 under the same head i.e. "Examination held on 04.01.1981 and 15.01.1981. Results published on 02.03.1981". Under the remark column, it was indicated that the petitioner was treated as S.T. (Laskar) till 31.03.1990. 7. A final seniority list was prepared in 1998 in which the petitioner name figured at Serial No. 76. On the other hand, the respondents were shown senior to him. As stated in the counter affidavit, the seniority was determined on the basis of the marks obtained by the candidates in the examination i.e. on the basis of the merit positions occupied by them. 8. It has been stated in the independent counter affidavits filed by the respondent Nos. 5 and 6 and respondent Nos. 2, 3 and 4 that the seniority of the petitioner vis a vis private respondents has been fixed on the basis of their merit positions in the selection. 9. Mr. P. Roy Barman, learned counsel, appearing for the petitioner referring to Paragraph 2 of the Judgment of the Apex Court in Srish Kumar Choudhury (supra) submits that the petitioner having joined the service at an earlier point of time would rank senior to the private respondents inasmuch as, as per the said judgment, the benefit, which already accrued to the petitioner as a member of S.T. category (Laskar), cannot be taken away. In Paragraph 2 of the Judgment, the Apex Court observed thus :- 2. In Paragraph 2 of the Judgment, the Apex Court observed thus :- 2. Before the High Court two circulars of the erstwhile State of Tripura, one being of December 1930, and the other of February, 1941, as also the census report of the ex-State of Tripura were produced in support of the claim advanced by the appellant. Several authorities of this Court were relied upon for finding out the scope of enquiry in a claim of this type and ultimately by the impugned judgment the :High Court dismissed the writ petition but on the basis of a statement made by the Advocate-General appearing for the State, it recorded: "We keep on record the statement made by the learned Advocate-General, Tripura, on instruction that as result of the impugned Memorandum No. 10887- 19077/TW/6-4-(L-D) dated 28-04-1979 the certificates already issued would be treated as in fructuous prospectively and not retrospectively and those who have already enjoyed the benefits by virtue of such scheduled tribe certificates they shall not be deprived of the benefits they have already enjoyed and the Memorandum shall be effective from its date prospectively insofar as the future benefits are concerned. 10. On the basis of the aforesaid under taking, the State of Tripura issued the Memorandum dated 31.03.1990 inter alia declaring that although the Laskar community could not be treated as Scheduled Tribe, but they would not be deprived of the benefits, which they had already enjoyed by virtue of being a member of the S.T. community. 11. On the basis of the above, it is the case of the petitioner that since the petitioner was shown senior to the respondents as a member of the S.T. community, the said position should hold the field and that the respondents are not entitled to alter that position on the basis of the judgment of the Apex Court in Srish Kumar Choudhury. 12. We have considered the submissions made by the learned counsel for the parties. We have also considered the materials on record. Giving our anxious consideration to the same, we are of the following view. 13. 12. We have considered the submissions made by the learned counsel for the parties. We have also considered the materials on record. Giving our anxious consideration to the same, we are of the following view. 13. Apart from the fact that there is gross delay in filing the writ petition in 2008 challenging the gradation lists of 1996 and 1998, as noted above, there is also no challenge to the Order passed by the Registry of this Court on 21.02.2008 by which the representation made by the petitioner against the said gradation lists was rejected. Independent of the question of delay and latches as has been raised by the respondent Nos. 2, 3 and 4 in their counter affidavit, we have considered the case of the petitioner on merit. 14. The fact of the matter is that the petitioner occupied merit position lower that of the private respondents. By virtue of being a member of S.T. community, perhaps he was appointed few days ahead of private respondents. It is on that basis, he was shown senior to the private respondents on the basis of the date of joining. However, later on, upon a re-determination of the seniority, on the basis of the merit positions obtained by the candidates in the selection, the gradation list was drawn in that manner and that was finalized in 1998. 15. We have perused the documents annexed to the writ petition, which clearly depict that the petitioner secured lesser marks than that of the respondents in the selection and consequently could not have been assigned higher seniority over the respondents. Here is a case of fixation of seniority on the basis of the merit positions obtained by the incumbents. 16. Mr. P. Roy Barman, learned counsel for the petitioner referring to the Annexure-C, order dated 20.02.1991 has submitted that in the said order of confirmation also, the petitioner was shown senior to the private respondents. We cannot appreciate this submission inasmuch as the order itself reflects that the serial number of the employees has not been shown in order of seniority in service. Thus, by the said order while confirming the employees, their names were shown in order of appointment, but not on the basis of their seniority based on merit positions. 17. Needless to say that fixation of seniority on the basis of merit positions is the safest method of fixation of seniority. Thus, by the said order while confirming the employees, their names were shown in order of appointment, but not on the basis of their seniority based on merit positions. 17. Needless to say that fixation of seniority on the basis of merit positions is the safest method of fixation of seniority. In the instant case, the respondents had initially fixed the seniority on the basis of date of joining the service. Such fixation was provisional. Later on, the seniority of the incumbents was fixed on the basis of the marks obtained by them in the selection. Admittedly, the petitioner secured lesser marks than the private respondents and consequently, his seniority had to be fixed below the said private respondents. We do not find any infirmity in the manner and method in which the senior had been fixed. 18. For all the aforesaid reasons, we do not find any merit of this writ petition and accordingly, it is dismissed. The parties will bear their own costs. Petition dismissed