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Tripura High Court · body

2013 DIGILAW 18 (TRI)

Monglagya Mog v. State of Tripura

2013-07-19

S.C.DAS

body2013
JUDGMENT S.C. Das, J. 1. In this writ petition, the petitioner, above named, challenged the final seniority list of the Inspector of Motor Vehicles published under Memo. No. F.1(7)-Trsns/2005 dated 28.04.2009 (Annexure-P.4 to the writ petition), wherein his name has been shown at Sl. No. 2, whereas, the name of respondent No. 4 has been shown at Sl. No. 1 and, therefore, prayed for setting aside and/or quashing the said seniority list and also prayed for directing the official respondents to publish the draft seniority list dated 09.09.2008 (Annexure-P3 to the writ petition) as the ultimate final seniority list, with other incidental relief(s). Heard learned counsel, Mr. Somik Deb for the petitioner and learned Addl. G.A., Mrs. A.S. Lodh for respondent Nos. 1, 2 and 3 and learned senior counsel, Mr. K.N. Bhattacharjee for respondent No. 4. 2. The petitioner, inter alia, contended that in the year 1993, Tripura Public Service Commission (for short, TPSC) made an advertisement inviting applications for recommending names of candidates for filling up of the vacant posts of Motor Vehicles Inspector (for short, MVI) and the petitioner, being a diploma holder in Mechanical Engineering applied for the post and the TPSC in due course after interview recommended a list of candidates for filling up of the vacant posts and the petitioner's name was placed in the waiting list. From the select list, Asim Saha, Promode Lal Seal, Dibakar Das and Bijoy Deb Barma were given offer of appointment but Promode Lal Seal did not join the post and, as a result the post remained unfilled. 2.1. The petitioner, being a candidate of waitlist was given offer of appointment on 28.08.1993 and he joined the post of MVI on 18.10.1993. Subsequently; respondent No. 4 was also given offer of appointment to the post of MVI and he joined the post on 20.01.1994. 2.2. A draft seniority list of the MVIs was published on 09.09.2008(Annexure-P.3), wherein the name of the petitioner was placed at Sl. No. 1 and the name of respondent No. 4 was placed at Sl. No. 2, reflecting their date of birth and date of appointment in the service. By the said memorandum, dated 09.09.2008, all the incumbent MVIs were invited to verify and confirm about the correctness of their date of birth, date of entry in service, etc. shown in the draft seniority list. 2.3. No. 2, reflecting their date of birth and date of appointment in the service. By the said memorandum, dated 09.09.2008, all the incumbent MVIs were invited to verify and confirm about the correctness of their date of birth, date of entry in service, etc. shown in the draft seniority list. 2.3. When the final seniority list was published and communicated vide Memo. dated 28.04.2009 (Annexure-P4), the petitioner was surprised to see the name of respondent No. 4 at serial No. 1 whereas his name was at Sl. No. 2 of the list. 2.4. The petitioner made a representation(Annexure-5 to the writ petition) to the Commissioner & Secretary, Government of Tripura, Transport Department ventilating his grievance that he joined in the service before respondent No. 4 and so the final seniority list was wrong and, therefore prayed for placing him on the top of the list i.e. above respondent No. 4. 2.5. He received no response from the Commissioner & Secretary, Transport Department but later on he received a copy of a letter dated 08.05.2009, written by the Deputy Transport Commissioner addressed to the Joint Secretary, Transport Department, wherein it was mentioned by the Deputy Transport Commissioner that the claim of the petitioner was genuine. But even thereafter the respondents did not correct the entries in the seniority list and, hence this writ petition. 3. Respondent Nos. 1, 2 and 3 filed a joint written statement, inter alia, stating that on the requisition made by the Transport Department for filling up of five vacant posts of MVIs (3 UR category, 1 SC category and 1 ST category), the TPSC recommended a list of five candidates on the basis of merit, namely Asim Sana, Promode Lal Seal, Narayan Chandra Sana of UR category, Dibakar Das of SC category and Bijoy Deb Barma of ST category and offer of appointment was given to first two candidates of UR category, i.e. Asim Saha and Promode Lal Seal, and one candidate of SC category, i.e. Dibakar Das and one candidate of ST category, i.e. Bijoy Deb Barma. Promode Lal Seal, who was placed at Sl. No. 2 in the merit list of UR category, did not join. Therefore, the post remained vacant. One post of UR category was decreased and, therefore respondent No. 4, whose name was figured in serial No. 3 of UR category was not initially given offer of appointment. Promode Lal Seal, who was placed at Sl. No. 2 in the merit list of UR category, did not join. Therefore, the post remained vacant. One post of UR category was decreased and, therefore respondent No. 4, whose name was figured in serial No. 3 of UR category was not initially given offer of appointment. One post of ST category was increased and, therefore on the requisition of Transport Department, the TPSC recommended the name of the petitioner from the waiting list for appointment to the post of MVI and, accordingly offer of appointment was given to the petitioner on 28.08.1993 and he joined the post on 18.10.1993. Since Promode Lal Seal, a UR category candidate, who was placed at Sl. No. 2 of the merit list did not join the post, an offer of appointment was given to Narayan Chandra Saha, the respondent No. 4, on 29.09.1993 and he joined the post on 20.01.1994. 4. It is contended by the respondents that the petitioner's name did not figure at all in the merit list. His name was subsequently recommended by the TPSC from the waiting list and, though he joined the post before respondent No. 4 he cannot claim seniority over respondent No. 4. The seniority was fixed on the basis of the merit position in the merit list. 5. It is contended that in the Office Order dated 12.07.1960(Annexure-R/1 to the counter affidavit) it has been clearly stipulated that the seniority should be determined in the order of merit and not otherwise. Since the petitioner's name did not figure in the merit list at all and since he was appointed from the waiting list because of subsequent vacancy of ST category, he cannot claim seniority over respondent No. 4, whose name has figured in Sl. No. 2 in the merit position in view of non-joining of Promode Lal Seal. The seniority list of MVIs was first published on 30.12.1996 and again on 12.09.2005 (Annexure-R/2 to the counter affidavit) and in both the seniority lists respondent No. 4 was placed above the petitioner and at no point of time the petitioner challenged those lists claiming his seniority over respondent No. 4. The seniority list of MVIs was first published on 30.12.1996 and again on 12.09.2005 (Annexure-R/2 to the counter affidavit) and in both the seniority lists respondent No. 4 was placed above the petitioner and at no point of time the petitioner challenged those lists claiming his seniority over respondent No. 4. The draft seniority list dated 09.09.2008 was published based on date of joining which had been corrected according to records at the time of final seniority list The representation of the petitioner was considered and rejected and he was duly informed by letter dated 06.11.2009 (Annexure-R/3 to the counter affidavit). 6. Respondent No. 4 also contested the case by filing a counter affidavit, inter alia, stating the same fact as stated by the official respondents and prayed for dismissal of the writ petition. 7. Appearing on behalf of the petitioner, the first argument advanced by learned counsel, Mr. Somik Deb is that, admittedly, the petitioner joined the post of MVI on 18.10.1993 and respondent No. 4 joined on 20.01.1994, i.e. subsequent to the petitioner. He, however, admitted that the name of respondent No. 4 has figured in the merit list recommended by the TPSG for appointment to the post of MVI. It is the contention of learned counsel, Mr. Deb that since respondent No. 4 joined the post of MVI after the petitioner, naturally, the petitioner should be placed above respondent No. 4 in the seniority list. 8. Learned counsel for the petitioner has further contended that a merit list of candidates remain alive for a period of one year and the merit list was already dead when respondent No. 4 was appointed and so the appointment of respondent No. 4 was itself illegal. In support of his contention learned counsel referred the case of Girdhar Kumar Dadhich & Anr. v. State of Rajasthan & Ors. reported in (2009) 2 SCC 706 . 9. Learned Addl. G.A., Mrs. Lodh and learned senior counsel, Mr. Bhattacharjee argued that on the requisition of the Transport Department, TPSC prepared a merit list of five candidates and the name of the petitioner did not figure in the merit list. The name of respondent No. 4 figured in the merit list at Sl. No. 3 as a UR category candidate. Since the candidate in Sl. No. 2, namely Promode Lal Seal did not join, the position of respondent No. 4 who was in Sl. The name of respondent No. 4 figured in the merit list at Sl. No. 3 as a UR category candidate. Since the candidate in Sl. No. 2, namely Promode Lal Seal did not join, the position of respondent No. 4 who was in Sl. No. 3, further presumed to have upgraded in Sl. No. 2. Because of some technicalities, respondent No. 4 joined the service after the petitioner but that does not create any hindrance in respect of the seniority list of respondent No. 4 since seniority is determined on the basis of the position of the merit list and not on the basis of the date of joining. The petitioner was nowhere in the merit list at all and his name was recommended by the TPSC later on from the waiting list since one post of ST category was found increased by the Department and hence his name was recommended. Learned counsel of both side referred the documents submitted on behalf of the official respondents in the connected CM Application No. 358 of 2009 wherein the relevant document has been annexed as Annexure-R/1 which shows that by Memo. No. F.11(38-2)-Rectt/TPSC/2009 dated 16.03.2009, TPSC recommended the names of five candidates as already stated hereinbefore and subsequent thereto by writing letter dated 05.08.1993 recommended the name of the petitioner from the waiting list for appointment to the post of MVI. 10. I have meticulously gone through the writ petition and the counter affidavit as well as the documents filed by both side. Admittedly, the petitioner's name did not figure in the merit list. 3 UR category, 1 SC category and 1 ST category candidates were recommended and out of them both SC and ST category candidates joined the post and out of the UR category candidates, offer of appointment was given to the candidates at Sl. Nos. 1 and 2 and it is the case of both side that the candidate at Sl. No. 2 of UR category, namely Promode Lal Seal did not join. It is also an undisputed fact that the petitioner was given offer as a candidate figured in the merit list because the candidate in Sl. No. 2 of the merit list did not join but he joined the post subsequent to the petitioner. 11. Let us first have a glimpse to the documents filed by the petitioner. It is also an undisputed fact that the petitioner was given offer as a candidate figured in the merit list because the candidate in Sl. No. 2 of the merit list did not join but he joined the post subsequent to the petitioner. 11. Let us first have a glimpse to the documents filed by the petitioner. Annexure-P.2 colly shows that respondent No. 4 was given offer of appointment on 22.12.1993. It is also stated in paragraph 11 of the counter affidavit filed by the official respondents which has not been disputed. So the process of appointment of respondent No. 4 as per the merit list started within one year from the date the merit list was recommended by the TPSC. Therefore, the argument advanced by learned counsel, Mr. Deb that the appointment of respondent No. 4 itself was bad in view of the fact that he has been given appointment after one year of publishing the merit list, does not stand. 12. The Supreme Court in the case of Girdhar Kumar Dadhich (supra) in paragraph 16 observed thus: 16. Furthermore, the select list would ordinarily remain valid for one year. We fait to understand on what basis appointments were made in 2003 or subsequently. Whether the validity of the said select list was extended or not is not known. Extension of select list must be done in accordance with law. Apart from a bald statement made in the list of dates that the validity of the said select list had been extended, no document in support thereof has been placed before us. 13. Indisputably, the petitioner joined before respondent No. 4. The respondents contended that seniority should be determined on the basis of the position in the merit list and not on the basis of the date of joining. Office Order No. F.1(16)-GA/59 dated 12.07.1960 (Annexure-R/1 to the counter affidavit) is an executive order issued long back in the year 1960 wherein the general principles of determination of seniority of various categories of persons employed under Tripura administration has been prescribed. Office Order No. F.1(16)-GA/59 dated 12.07.1960 (Annexure-R/1 to the counter affidavit) is an executive order issued long back in the year 1960 wherein the general principles of determination of seniority of various categories of persons employed under Tripura administration has been prescribed. In respect of direct recruitment the Office Order dated 12.07.1960 prescribes thus: DIRECT RECRUITE: Notwithstanding the provision of para-3 above, the relative seniority of all direct recruits shall determined by the order of merit in which they are selected for such appointment on the recommendations of the UPSC or other selecting authority, persons appointed as a result of an earlier selection being senior to those appointed as a result of a subsequent selection. Provided that where persons recruited initially on a temporary basis are confirmed subsequently in a order different from the order of merit indicated at the time of their appointment, seniority shall follow the order of confirmation and not the original order of merit In view of the above executive order, respondent No. 4 was rightly shown above the petitioner. 14. Learned counsel, Mr. Deb in course of his argument referred the decision of the Apex Court in the case of Pawan Pratap Singh & Ors. v. Reevan Singh & Ors. reported in (2011) 3 SCC 267 : 2011 AIR SCW 1365. In paragraph 45 of the judgment the Supreme Court observed: 45. From the above, the legal position with regard to determination of seniority in service can be summarized as follows: (i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be. (ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. (iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules. (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided, by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the mean time. A close reading of the above observation makes it abundantly clear that it relates to fixation of seniority in respect of officers appointed by direct recruitment from different source and of different recruitment year. 15. The fact of the case at hand and the principle enunciated by the Apex Court in the reported case are quite distinguishable and I find nothing to apply the principle in the present case, since the present case is not a case of recruitment from different sources and different recruitment year. Here it is the case of the merit list, vis-à-vis waitlist. Where the name of respondent No. 4 is found in the merit list, the petitioner's name came later on from the waiting list, and according to the executive order, which is followed by the official respondents since long, it is the position in the merit list which shall prevail over the date of joining. The executive instruction in respect of determination of seniority on the basis of the merit list stands good and the above decision of the Apex Court referred by learned counsel, Mr. Deb is in support of the contention of the respondents. Further, as I find, the petitioner did not challenge the appointment of respondent No. 4 in the writ petition but in course of argument the point has been raised which is found to be beyond the pleadings and, therefore such argument cannot claim consideration in the eye of law. 16. The Supreme Court in the case of Suresh Chandra Jha v. State of Bihar & Ors. 16. The Supreme Court in the case of Suresh Chandra Jha v. State of Bihar & Ors. reported in (2007) 1 SCC 405 has categorically held that in absence of any rule in operation, merit list, not the fortuitous circumstance of date of joining, should decide the respective seniority. In paragraphs 6, 7 and 8 of the judgment, the Court has held-- 6. There is no dispute that the appellant was ranked higher to Respondents. There is also no dispute that in the appointment letter the appellant was given six weeks' time to join. Merely because Respondent 8 joined earlier that did not in any way affect the merit placement. 7. This Court in Chairman, Puri Gramya Bank v. Ananda Chandra Das: 1994 (6) SCC 301 held as follows: (SCC p.301, para 2) 6. This appeal arises from the judgment of the High Court of Orissa in OJC No. 1007 of 1988, dated March 4.3.1992. The respondent and others were selected by direct recruitment as managers of Rural Bank. His rank was No. 9 in the merit list. He was directed to be given seniority on the basis of the date of his reporting to duty. It is reported that the first respondent is dead. The only question in this case is that what shall be the ranking among the direct recruits? Is it the date on which they joined duty or according to the ranking given by the Selection Board? On comparative evaluation of the respective merits of the candidates for direct recruitment, the Board has prepared the merit list on the basis of the ranking secured at the time of the selection. It is settled law that if more than one are selected, the seniority is as per ranking of the direct recruits subject to the adjustment of the candidates selected on applying the rule of reservation and the roster. By mere fortuitous chance of reporting to duty earlier would not alter the ranking given by the Selection Board and the arranged one as per roster. The High Court, is, therefore, wholly wrong in its conclusion that the seniority shall be determined on the basis of the joining reports given by the candidates selected for appointment by direct recruitment and length of service on its basis. The view, therefore, is wrong. However, we need not interfere with the order, since the first respondent has died. The High Court, is, therefore, wholly wrong in its conclusion that the seniority shall be determined on the basis of the joining reports given by the candidates selected for appointment by direct recruitment and length of service on its basis. The view, therefore, is wrong. However, we need not interfere with the order, since the first respondent has died. (underlined for emphasis) 8. Since there was no rule in operation, obviously the ranking in the merit list was to decide the respective seniority. The ratio in Chairman, Puri Gramya Bank's case (supra) has full application to the facts of the case. The appellant's claim that he was to be treated as senior to the Respondent 8 was rightly accepted by the learned Single Judge. Unfortunately, the Division Bench did not address itself to the specific question and has placed undue stress on Respondent 8 having joined earlier. In the case of Bimlesh Tanwar v. State of Haryana & Ors. reported in (2003) 5 SCC 604 , the Supreme Court has held that seniority is not a fundamental right. It is merely a civil right. Inter se seniority of the candidates who are appointed on the same day would be dependent on the rules governing the same. In the absence of rules governing seniority an executive order may be issued to fill up the gap. Only in the absence of a rule or executive instructions, the court may have to evolve a fair and just principle which could be applied in the facts and circumstances of the case. In that reported case, select list was prepared keeping in view the respective merit of the candidates. The court held that not only appointments are required to be made on the basis of such merit list, seniority is also to be determined on the basis as it is expected that the candidates should be joining their respective posts almost at the same time. 17. It is submitted by learned counsel of the respondents that before the impugned final seniority list dated 28.04.2009, there were previously published two seniority lists, annexed at Annexure-R/2 to the counter affidavit, which shows a final seniority list was published on 30.12.1996 wherein Asim Saha was shown at Sl. No. 1, respondent No. 4 was shown at Sl. No. 2, Dibakar Das, Bijoy Deb Barma and the petitioner were shown at Sl. Nos. 3, 4 and 5 respectively. No. 1, respondent No. 4 was shown at Sl. No. 2, Dibakar Das, Bijoy Deb Barma and the petitioner were shown at Sl. Nos. 3, 4 and 5 respectively. In the seniority list published on 12.09.2005, respondent No. 4 was shown at Sl. No. 1 and the petitioner was shown at Sl. No. 2. It is contended by learned counsel of the respondents that the petitioner never challenged those seniority lists and, hence, the present petition is barred by delay and laches and also barred by principle of estoppels. 18. Learned counsel, Mr. Deb argued that the petitioner did not challenge those seniority lists published long ago but the respondents through their own act made their previous wrong corrected by publishing the draft seniority list dated 09.09.2008(Annexure-P.3 to the writ petition) and since the writ petitioner was satisfied with that draft seniority list he was naturally expecting that it will come out as a final seniority list but when he found the final seniority list (Annexure-P.4) came out differently he has a right to challenge it and, accordingly, he filed a representation. The petitioner, admittedly, did not challenge the earlier seniority lists, dated 30.12.1996 and 12.09.2005 wherein, admittedly, respondent No. 4 was shown above the petitioner. The petitioner is therefore estopped by his own conduct in challenging the later seniority list wherein the same respondent has been shown above him. 19. Regarding delay and laches as argued by learned counsel of the respondents, I find no merit in the argument since the cause of action for the petitioners for filing the writ petition generated because of the draft seniority list published by the official respondents, showing the petitioner above respondent No. 4. Simply because the name of the petitioner has once shown in the draft seniority list above respondent No. 4 it can in no way be held that the petitioner earned a jump over respondent No. 4 who has been held as senior to the petitioner since long back. 20. Simply because the name of the petitioner has once shown in the draft seniority list above respondent No. 4 it can in no way be held that the petitioner earned a jump over respondent No. 4 who has been held as senior to the petitioner since long back. 20. Office Order dated 12.07.1960 (Annexure-R/1 to counter affidavit) is an executive order issued by the State Government prescribing thereunder the 'General Principles to be Followed by all Departments under the Government for determining the Seniority of Various Category of Persons Employed Under Tripura Administration,' which has so long been followed cannot be disturbed in the admitted position where the name of respondent No. 4 figured in the merit list whereas the name of the petitioner came to picture later on from the waiting list and the date of joining in the given facts and circumstances is of no consequence at all. I, therefore, find no merit in the writ petition and, hence the writ petition stands dismissed but in the circumstances without costs.