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2012 DIGILAW 642 (GAU)

State of Tripura v. Anil Chakraborty

2012-05-30

ADARSH KUMAR GOEL, SUBHASIS TALAPATRA

body2012
JUDGMENT Subhasis Talapatra, J. 1. All these miscellaneous applications for condoning the delay along with the connected writ appeals are tied up together for the reason that common questions of fact and law are involved in all these matters, even though there are some factual variations as to the days of delay. For appreciation, the days of delay against each miscellaneous application for condonation of delay are shown in a tabular form hereunder:- C.M. Application (WA) No. 80 of 2011, In W.A. No. 46 of 2011 309 days C.M. Application (WA) No. 83 of 2011, In W.A. No. 48 of 2011 244 days C.M. Application (WA) No. 85 of 2011, In W.A. No. 49 of 2011 300 days C.M. Application (WA) No. 89 of 2011, In W.A. No. 51 of 2011 246 days C.M. Application (WA) No. 95 of 2011, In W.A. No. 52 of 2011 246 days In all these miscellaneous applications notices were issued. Either notices were properly served on the respondents (hereinafter referred to as the writ petitioners) or since the registered letters were tendered on 01.02.2012, the notices be deemed to have been duly served on the writ petitioner in view of the proviso to Rule 9(5) of Order V of the Code of Civil Procedure. 2. The State appellants-petitioners have stated in all the miscellaneous applications that the cause of justice would be defeated unless the delay be condoned by this court. It is well settled that when an inordinate delay takes place such delay may on assigning the sufficient cause be condoned by the court if the cause of substantive justice is demonstrated. Explanation for the delay as provided by the State appellants-petitioners is for pushing of the files from one Officer to another Officer for a long period in a short circuit. The State appellants-petitioners ritualistically contended that the State being an impersonal machinery this court may accept the explanations for substantive ends of justice as attached to the Writ Appeals. In view of this, this court considers that it would be proper to examine, for purpose of condoning the long delay, whether the writ appeals as filed by the State appellants involve elements of substantive justice or not. 3. In view of this, this court considers that it would be proper to examine, for purpose of condoning the long delay, whether the writ appeals as filed by the State appellants involve elements of substantive justice or not. 3. By this batch of writ appeals the common judgment and order dated 08.03.2011 as passed by the learned Single Judge in W.P. (C) No. 95 of 2011 (W.A. No. 48 of 2011), W.P. (C) No. 51 of 2011 (W.A. No. 51 of 2011), W.P. (C) No. 44 of 2011 (W.A. No. 52 of 2011) and judgment and order dated 22.12.2010 in W.P. (C) No. 93 of 2010 (W.A. No. 46 of 2011) as well as judgment and order dated 11.01.2011 in W.P. (C) No. 520 of 2010 (W.A. No. 49 of 2011) have been challenged. The common judgment and order dated 08.03.2011 and judgment and order dated 11.01.2011 have been passed on the basis of the symmetrical judgment and order dated 22.12.2010. 4. The State appellants did not dispute the factual narrative as laid in the writ petitions but they have challenged the direction of the learned Single Judge that the authority should have exempted the writ petitioners from requirement of the accounts training on taking note of Rule 10(v) of the Tripura Accounts Cum Administrative Training Rules, 1988 (for short 'the Rules,1998) and also the direction to consider the cases of the writ petitioners for temporary promotion to the post of Head Clerk/Accountant without requiring their completion of the Accounts cum Administrative Training in view of preserving their seniority in the promotion post vis-a-vis their juniors (the private respondents in the writ petitions) within a period of two months from the date of receipt of the order. 5. The grievance of the writ petitioners as transpired from the records is necessary to be reflected upon. The writ petitioners have been deprived of their promotion to the post of Head Clerk/Accountant as the relevant Recruitment Rules of Head Clerk/Accountant requires that unless a person holding the feeder post had completed the Accounts cum Administrative Training he/she would not be considered for promotion to the next higher grade of the Head Clerk/Accountant. The writ petitioners have been deprived of their promotion to the post of Head Clerk/Accountant as the relevant Recruitment Rules of Head Clerk/Accountant requires that unless a person holding the feeder post had completed the Accounts cum Administrative Training he/she would not be considered for promotion to the next higher grade of the Head Clerk/Accountant. The writ petitioners pleaded in the writ petitions that though Rule 9 of the Rules, 1998 provides that the selection of trainees shall be on the basis of seniority and the Departments shall prepare a panel of trainees on the basis of seniority and sponsor the names as and when the Department would be asked by the Finance Department for sending nominations for the said training. The writ petitioners even though were willing to join the said training course either the State-respondents did not allow them to join the said course or their names were not sponsored despite they were occupying the higher seniority position as compared to the private respondents. The writ petitioners categorically pleaded that they were never asked by the authority to join the training rather it appeared subsequently that the junior incumbents in the feeder grade were sponsored and they had been given opportunity in breach of the seniority position and the provisions as embodied in Rule 9 of the said Rules, 1998. Apart that, one of the writ petitioners, namely Sri Anil Chakraborty had completed 55 years of age when his juniors were appointed by the impugned order of promotion under No. F. (5)/DM/W/ ESTT/09/1396-418, dated 23.03.2010 but no exemption was accorded in view of the Rule 10(iv) of the said Rules. Rule 10 of the Rules, 1998 provides for exemption for some categories of Government employees from the said training. The said provision is reproduced hereunder:- 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. (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 examinations. (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 State-appellants did not consider any exemption though ex facie it is apparent from the face of the record that the writ petitioners were deprived of completing their Accounts training for arbitrary action as adopted by the State-appellants. The State-appellants never sponsored the writ petitioners for completing the said Accounts Training whereas they had sponsored the names of junior incumbents in the feeder grade for training. However, the writ petitioners conceded to that if they were given promotion from the date of promotion of their juniors they would not press for quashing the said impugned order of promotion. The learned Single Judge finds the said action of the State-appellants arbitrary and unreasonable and by the impugned judgment and order the State-appellants were directed to undo the injustice on considering the promotion of the writ petitioners to the post of Head Clerk/Accountant without requiring the Accounts-cum-Administrative Training. In W.P. (C) No. 520 of 2010 (Smti Srutakriti Ghosh & another vs. State of Tripura & other), the learned Single Judge has categorically held 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 writ petitioners and behind their back as well. In W.P. (C) No. 520 of 2010 (Smti Srutakriti Ghosh & another vs. State of Tripura & other), the learned Single Judge has categorically held 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 writ petitioners and behind their back as well. In the base judgment (W.P. (C) No. 93 of 2010- Sri Anil Chakraborty vs. The State of Tripura & other), the learned Single Judge also observed:- In the Rules, 1998 though certain discretionary power was given to the Governor for exempting a Government servant from appearing in the Accounts cum Administrative Training, but what would be the special circumstances that has not been defined, meaning thereby that the Rule making authority has empowered the Governor to exercise his unlimited discretion considering the facts and circumstances of a particular case of an employee concerned. 7. In a decision as rendered by this High Court in W.P. (C) No. 231 of 2008, it was held:- It is not in doubt 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 petitioner has been deprived of acquiring the qualification of accounts training. Since the 1998 Rules provide for granting temporary promotion, I am of the view that to mitigate the hardship caused to the petitioner by the default of the respondents authorities, it would be appropriate to direct consideration of the case of the petitioner for temporary promotion by disregarding his lack of accounts training, if he has otherwise fulfilled the requirements for getting such promotion. 8. Mr. J. Majumder, learned State counsel appearing for the State- appellants in all these applications and the related writ appeals, furnished a copy of the order under No.F.1(5)-DM/W/ESTT/2010/13254-66, dated 03.02.2012, whereunder all the writ petitioners have been provided promotion to the grade of Head Clerk/Accountant in the scale of pay of Rs.5310-24000/- under P.B.-2 with Grade Pay of Rs.2400/- with admissible allowances with retrospective effect from the date of joining of their juniors. However, the said order dated 03.02.2012 is subject to final outcome of these writ appeals. 9. However, the said order dated 03.02.2012 is subject to final outcome of these writ appeals. 9. The fact that the writ petitioners are senior to the private respondents in the respective writ petitions and their names were not sponsored by the State-respondents, rather in breach of Rule 9 of the Rules, 1998, the junior incumbents in the feeder grades were sponsored and on completion of their Accounts training they were promoted to the higher grade of Head Clerk/Accountant are not in dispute. It is also not in dispute that Sri Anil Chakraborty, one of the writ petitioners had completed 55 years of age when the private respondents were promoted to the post of Head Clerk/Accountant but he was not accorded any exemption from the operation of the Rules, 1998 for his attaining age of 55 years as provided in Rule 10(iv) of the said Rules. As such it has been well founded by the writ petitioners that for arbitrary and unreasonable action of the State-respondents the writ petitioners were deprived of joining the Accounts training and completing the same for the purpose of getting promotion to the next higher grade of Head Clerk/Accountant. As such, the learned Single Judge did not commit any error of law directing the State-respondents to exempt the writ petitioners from operation of the Rules, 1998 as a special category in exercise of authority as embodied in Rule 10(v) of the said Rules. For any State action a citizen must not face inequity and damage. If it is found that for the State action a citizen has been subjected to such inequity and damage and the grievance has been placated for judicial review, the court has sufficient power in the public law remedy for accommodating with appropriate relief. The direction as such as given by the learned Single Judge in the impugned judgments and orders do not call for any interference. Hence, we hold that the writ appeals as filed by the State-appellants are hopelessly without merit. Even though Mr. J. Majumder, learned State counsel referred to the explanations as provided in these miscellaneous applications for the delay and contended that it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on the part of the State is less difficult to understand. Even though Mr. J. Majumder, learned State counsel referred to the explanations as provided in these miscellaneous applications for the delay and contended that it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on the part of the State is less difficult to understand. He further contended that since the State represents collective cause of the community, certain amount of latitude is not impermissible. 10. The principle has been crystalised by a catena of judgments including Collector, Land Acquisition vs. Katiji, as reported in (1987)2 SCC 107 , where the Apex Court holds as follows:- It is a common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. This Court reiterated that the expression "every day's delay must be explained" does not mean that a pedantic approach should be made. The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. The same principle has been reiterated in State of Haryana vs. Chandra Mani & other, as reported in (1996)3 SCC 132 , where it was held in no uncertain terms:- The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The said principle has survived the test of time and in State of Nagaland vs. Lipok Ao & other, as reported in (2005)3 SCC 752 , the Apex Court has resonated the same principle of Chandra Mani (supra). In view of these decisions, this Court has considered the submission of Mr. The said principle has survived the test of time and in State of Nagaland vs. Lipok Ao & other, as reported in (2005)3 SCC 752 , the Apex Court has resonated the same principle of Chandra Mani (supra). In view of these decisions, this Court has considered the submission of Mr. J. Majumder, learned State counsel with sufficient latitude but unfortunately since we hold that the appeals are hopelessly without merit, the delay as explained in a slip-shot manner cannot be condoned and as such all these miscellaneous applications are dismissed. However, there shall be no order as to costs. Application dismissed.