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2014 DIGILAW 147 (TRI)

Ashish Biswas v. State of Tripura

2014-04-10

S.C.DAS

body2014
JUDGMENT S.C. Das, J.:- Heard learned senior counsel, Mr. A.C. Bhowmik, assisted by learned counsel, Mr. D. Sarkar for the petitioner and learned Addl. G.A., Mrs. A.S. Lodh for respondent Nos. 1 to 4. None appeared for respondent Nos. 5 to 7. 2. The petitioner, inter alia, contended that he was appointed as Rifleman(GD) of the Tripura State Rifles(for short, TSR) on 24.07.1992 and was discharging his duties sincerely, honestly and diligently whereas, respondent Nos. 5 to 7 were appointed as Rifleman(GD) on 23.07.1994, 21.07.1992 and 23.07.1992 respectively. He has further contended that he was thereafter appointed as Rifleman(Driver) on 20.09.2000 w.e.f. 17.05.2000(Annexure-A to the writ petition). Thereafter, he was promoted as L/NK(Driver) on 29.12.2003 w.e.f. 14.09.2001(Annexure-B to the writ petition) and then he was promoted as NK(Driver) on 08.08.2003 w.e.f. 05.08.2003(Annexure-C to the writ petition). 2.1. It is also contended by the petitioner that respondent Nos. 5 to 7 were appointed as Rifleman(Driver) on 17.09.2002 w.e.f. 19.01.2002(Annexure-D to the writ petition). Thereafter, they were promoted as L/NK(Driver) on 10.08.2004 w.e.f. 14.11.1997(Annexure-E to the writ petition). Later on, they were promoted as NK(Driver) on 01.06.2005 w.e.f. 14.11.2001. 2.2. It is alleged by the petitioner that respondent Nos. 5 to 7 were appointed as Rifleman(Driver) after his appointment as Rifleman(Driver) and they were also promoted as L/NK(Driver) and NK(Driver) after his promotion and so they were junior to him in the posts of L/NK(Driver) and NK(Driver). 2.3. It has also been alleged by the petitioner that respondent Nos. 1 to 4 published a draft seniority list of NK(Driver) dated 07.11.2005(Annexure-H to the writ petition) wherein, the petitioner was shown at Sl. No. 54, whereas the private respondents were shown at Sl. Nos. 52, 49 and 51 respectively, above him and he has been wrongly shown as junior. 2.4. Felt aggrieved, he submitted a representation to respondent No. 4(Annexure-F to the writ petition) stating his grievance that he has been wrongly shown as junior to the private respondents and prayed for placing him above the State respondents. Nos. 52, 49 and 51 respectively, above him and he has been wrongly shown as junior. 2.4. Felt aggrieved, he submitted a representation to respondent No. 4(Annexure-F to the writ petition) stating his grievance that he has been wrongly shown as junior to the private respondents and prayed for placing him above the State respondents. In response to his representation, the respondents by sending a reply dated 28.10.2005(Annexure-G to the writ petition) intimated him that the private respondents and nineteen others were given promotion to the post of NK(Driver) pursuant to the PHQ(Police Headquarters) letter dated 20.12.2003 and subsequent letter dated 16.01.2004, further stating that they were superceded by their juniors while promoting to the posts of L/NK(Driver) and NK(Driver) and that happened due to the fact that they could not be sent to undergo ’Driving & Maintenance’ training course timely and, therefore, their seniority position was corrected. 2.5. The respondents, thereafter published seniority list(Annexure-H to the writ petition) wherein private respondent Nos. 5 to 7 were shown above the petitioner and the said seniority list was wrong and illegal. It is also contended that by a message dated 21.02.2006(Annexure-I to the writ petition), respondent No. 3 called a DPC for promotion to the post of Havildar(Driver) on the basis of the combined final seniority list which was also wrong and illegal. 2.6. The petitioner, therefore challenged promotion orders of the private respondents to the posts of L/NK(Driver) and NK(Driver) and also challenged final seniority list dated 07.11.2005(Annexure-H to the writ petition) and the message convening DPC dated 21.02.2006(Annexure-I to the writ petition) and prayed for quashing the same. 3. Respondent Nos. 1 to 4 submitted counter affidavit, inter alia contending that the private respondent Nos. 5 to 7 were appointed as Rifleman(GD) prior to the appointment of the petitioner. The petitioner has undergone ’D&M’ training course on 20.09.2000 and, therefore he was appointed as Rifleman(Driver) w.e.f. 17.05.2000 but the private respondent Nos. 5 to 7 could not be deputed for the said ’D&M’ training course because of departmental exigencies and operational commitment and, so they were appointed after their such training on 17.09.2002. The private respondents were all along senior to the petitioner and therefore they were promoted as L/NK(Driver) w.e.f. 14.11.1997 and NK(Driver) w.e.f. 14.11.2001. 5 to 7 could not be deputed for the said ’D&M’ training course because of departmental exigencies and operational commitment and, so they were appointed after their such training on 17.09.2002. The private respondents were all along senior to the petitioner and therefore they were promoted as L/NK(Driver) w.e.f. 14.11.1997 and NK(Driver) w.e.f. 14.11.2001. In respect of seniority, there were some anomaly and discrepancy in the posts of L/NK(Driver) and NK(Driver) and those anomalies and discrepancies were removed by an order dated 03.08.2004(Annexure-R/1 to the counter affidavit). The draft seniority list and final seniority list were published taking into consideration the relevant factors according to rules and the petitioner has not been deprived in any manner. 4. Respondent Nos. 5, 6 and 7 also submitted a counter affidavit, inter alia stating that they were appointed as Rifleman(GD) on 23.07.1992, 21.07.1992 and 23.07.1992 respectively, whereas the petitioner was appointed as Rifleman(GD) on 24.07.1992 and so the petitioner was junior to them. Because of operational commitment they were not deputed by the department for ’D&M’ training course and the petitioner was sent before them and, as a result he was appointed as Rifleman(Driver) before them. Thereafter, they were also appointed as Rifleman(Driver) and then were promoted as L/NK(Driver) and NK(Driver) with retrospective effect and the seniority position was corrected and/or set at right after considering the dates of appointment and all other relevant factors. There was nothing wrong in their promotional orders as well as in the seniority list and so the writ petition should be dismissed. 5. Learned senior counsel, Mr. Bhowmik has submitted that the petitioner was appointed as Rifleman(Driver), admittedly before the private respondents and he was also promoted in the posts of L/NK(Driver) and NK(Driver) before the private respondents but at the time of giving promotion to the private respondents in the posts of L/NK(Driver) and NK(Driver), the order of promotion was given effect retrospectively prior to the petitioner and thereby the State respondents purposely and deliberately made the petitioner junior to the private respondents wrongly and illegally. Since the petitioner was appointed as Rifleman(Driver) prior to the private respondents and also he was promoted as L/NK(Driver) and NK(Driver) before the private respondents, he should be treated as senior to those private respondents, and therefore, the seniority list(Annexure-H to the writ petition) should be set aside and quashed and the order of promotion of the private respondents in the posts of L/NK(Driver) and NK(Driver) also should be set aside. 6. Learned Addl. G.A., Mrs. A.S. Lodh, on the other hand, has submitted that the private respondents were appointed as Rifleman(GD) before the petitioner. The post of Rifleman(GD) is the feeder post of Rifleman(Driver). The private respondents, though were senior to the petitioner but they could not be spared for ’D&M’ training course because of departmental exigencies, whereas the petitioner has undergone the training of ’D&M’ course prior to the private respondents and he was appointed as Rifleman(Driver) prior to the private respondents. The private respondents were not in fault for their training at a subsequent stage than that of the petitioner and so when the private respondents completed the ’D&M’ training course they were appointed as Rifleman(Driver) and subsequently were promoted to the posts of L/NK(Driver) and NK(Driver) with retrospective effect retaining their seniority position. There were ambiguity in respect of seniority of NK(Driver) and the departmental authority considering all aspects issued order dated 27.05.2005(Annexure-R/2 to the counter affidavit) and thereby rectified the wrong. Final seniority list was properly prepared taking into account all relevant factors and date of appointment, etc. and so the petitioner has no case for consideration by this Court. 7. Recruitment to the post of Rifleman(Driver) is dealt with as per Rule 29 of the Tripura State Rifles(Recruitment) Rules, 1984. The promotion to the posts of L/NK(Driver), NK(Driver) and Havildar(Driver) is dealt with under Rule 29 of the said Rules. Rule 29 prescribes that a person is eligible to be posted as Rifleman(Driver) who has at least 2 years satisfactory service as Rifleman and passed Driving and Maintenance Course(D&M course) and possessed a valid driving licence. 8. It is, therefore evident that for appointment to the post of Rifleman(Driver) one has to render satisfactory service of two years as a Rifleman(GD). As it appears, the seniority list has been prepared taking into account the date of appointment as Rifleman(GD). 8. It is, therefore evident that for appointment to the post of Rifleman(Driver) one has to render satisfactory service of two years as a Rifleman(GD). As it appears, the seniority list has been prepared taking into account the date of appointment as Rifleman(GD). There is nothing in the Rules that for preparation of the seniority list of Rifleman(Driver), the past service as Rifleman(GD) should not be taken into account. 9. The petitioner contended that he was appointed as Rifleman(GD) on 24.07.1992. No copy of the order of appointment of the petitioner is placed on record. Respondent Nos. 1 to 4 in their counter affidavit, in para 7 stated that the petitioner was appointed as Rifleman(GD) on 24.07.1994. But in para 8 of the same counter affidavit they have admitted the contention of the petitioner that he was appointed as Rifleman(GD) on 24.07.1992. In para 12 also the respondents admitted that the petitioner was appointed on 24.07.1992 as Rifleman(GD). Respondent Nos. 5, 6 and 7 also in para 8 of their counter affidavit stated that the petitioner was appointed on 24.07.1992. Though no document in respect of the appointment of the petitioner in the post of Rifleman(GD) is placed on record, which was the duty of the petitioner, it is quite established that the petitioner was appointed as Rifleman(GD) on 24.07.1992. 10. The petitioner in his writ petition stated that the private respondent Nos. 5, 6 and 7 were appointed as Rifleman(GD) on 23.07.1994, 21.07.1992 and 23.07.1992 respectively. No appointment letter of such respondents placed on record by the petitioner in support of his contention. Respondent Nos. 1 to 4 in their counter affidavit stated that the private respondents were appointed as Rifleman(GD) on 21.07.1992, 22.07.1992 and 23.07.1992 respectively. Private respondent Nos. 5, 6 and 7 in their counter affidavit stated that they were appointed on 23.07.1992, 21.07.1992 and 23.07.1992 respectively. The respondents also did not place any appointment letter of the private respondents. The petitioner did not challenge the contention of the respondents in respect of date of appointment of the private respondents in the post of Rifleman(GD) by filing any rejoinder affidavit. Annexure-H to the writ petition, the seniority list, annexed by the petitioner shows the names of private respondents at Sl. Nos. 52, 49 and 51 respectively wherein their dates of appointment have been shown as 23.07.1992, 21.07.1992 and 23.07.1992 respectively. Annexure-H to the writ petition, the seniority list, annexed by the petitioner shows the names of private respondents at Sl. Nos. 52, 49 and 51 respectively wherein their dates of appointment have been shown as 23.07.1992, 21.07.1992 and 23.07.1992 respectively. Annexure-R/3 to the counter affidavit is the same document showing the same dates of appointment. It is, therefore, evident that private respondents were appointed as Rifleman(GD) in the same year before the petitioner, i.e. the private respondent Nos. 5 and 7 were appointed one day before the petitioner and private respondent No. 6 was appointed three days before the petitioner. 11. Admittedly, the petitioner was appointed in the post of Rifleman(Driver) before the private respondents. He was also promoted to the posts of L/NK(Driver) and NK(Driver) before the private respondents. It is contended by the respondents that the private respondents could not be sent to the ’D&M’ training course for operational commitment and there was no fault of the private respondents for their having undergone the training in time. The petitioner incidentally has undergone the training before the private respondents and, as a result, he was appointed as Rifleman(Driver) before the private respondents. When promotion was given to the private respondents they were given the benefit with retrospective effect prior to the petitioner and, therefore by Annexure-R/1 the seniority position was corrected and restored. The petitioner did not challenge Annexure-R/1 by which the seniority positions of the petitioner and others in the rank of L/NK(Driver) were rectified. There is nothing in the recruitment rules that the seniority position of Rifleman(Driver), L/NK(Driver) and NK(Driver) should be maintained taking into account the dates of their appointment as Rifleman(Driver) ignoring their dates of appointment as Rifleman(GD) which is the feeder post of appointment to the post of Rifleman(Driver). While there was no such specific Rules, and the department has taken into consideration the seniority position, taking into account the date of appointment in the post of Rifleman(GD), and accordingly, prepared the seniority list after regularization of the anomalies, I find nothing wrong in the action of the State respondents. By Annexure-R/1, as it appears, the State respondents regularized the seniority position of 31 Rifleman(Driver) taking into account their dates of appointment and that order since stands good and not challenged in this writ petition, the final seniority list cannot be interfered by this Court. By Annexure-R/1, as it appears, the State respondents regularized the seniority position of 31 Rifleman(Driver) taking into account their dates of appointment and that order since stands good and not challenged in this writ petition, the final seniority list cannot be interfered by this Court. There is nothing to show that the petitioner was singled out and discriminated in respect of his seniority position. The department taking into consideration the position of the Rifleman(Driver) and L/NK(Driver) regularized their position in the seniority list and the same cannot be said to have prepared violating any fundamental or legal right of the petitioner. Further, the private respondents were promoted to the posts of L/NK(Driver) and NK(Driver) with retrospective effect taking into account their seniority position in the post and such order has not infringed the right of the petitioner in any manner. 12. In view of the discussions made above, the writ petition is found to be devoid of merit and, hence it stands dismissed. Parties are to bear their own cost.