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2014 DIGILAW 170 (TRI)

Sushanta Gupta v. State of Tripura

2014-05-06

S.C.DAS

body2014
JUDGMENT S.C. Das, J.:- Heard learned Sr. counsel Mr. S.M. Chakraborty assisted by learned counsel Mr. P. Majumder for the petitioner; learned Addl. G.A. Mrs. A.S. Lodh for the respondent Nos. 1 to 4 and learned counsel Mr. P. Dutta for the respondent No. 5, The Tripura Public Service Commission. Private respondent Nos. 6 to 16 have chosen to remain absent. 2. The petitioner, inter alia, contended that he was appointed in the post of Assistant Conservator of Forest (for short, ACF) through the Tripura Public Service Commission (for short, TPSC) under the State-respondents on 01.03.1982 in due process. It was an ex-cadre post since there was no service rule for the post of ACF at the relevant point of time. He was also sent for two years diploma course in Forestry and he completed the course. The Govt. of Tripura made the Tripura Forest Service Rules 1988 and it came into force w.e.f. 5.6.1988. After the Tripura Forest Service Rules, 1988 came into force, as per provisions prescribed in Rule 18, a Committee was constituted to consider and recommend the names of the eligible officers working in the post of ACF, in ex-cadre post, for their encadrement and the Committee headed by the Chairman of Tripura Public Service Commission, held its meeting on 05.07.1991 and recommended the names of the eligible candidates but the Committee found the petitioner unsuitable and therefore, wrongly did not recommend the name of the petitioner based on a vigilance observation of the year 1991 and therefore, the petitioner was not encadred whereas his juniors i.e. respondent Nos. 6 to 16 were encadred and they became senior to the petitioner. The proceedings of the Committee meeting dated 05.07.1991 has been annexed as Annexure-2 to the writ petition. It is contended by the petitioner that the petitioner was supposed to be encadered w.e.f. 1988 whereas taking into consideration the vigilance observation of 1991, his encadrement was refused by the State-respondents based on the wrong and illegal recommendation of the Committee. The petitioner submitted a representation to the Chief Secretary (Forest Secretary) of the Govt. of Tripura (Annexure-3 to the writ petition through proper channel seeking remedy of his deprivation and claimed encadrement w.e.f. the year 1988. The petitioner submitted a representation to the Chief Secretary (Forest Secretary) of the Govt. of Tripura (Annexure-3 to the writ petition through proper channel seeking remedy of his deprivation and claimed encadrement w.e.f. the year 1988. That representation was forwarded by the Principal Chief Conservator of Forest (Respondent No. 3) with a detailed office note (Annexure-4 to the writ petition) recommending that the petitioner was actually deprived and that he was entitled to be encadred w.e.f. 1998. But the respondents vide memorandum dated 30.04.2009 (Annexure-7 to the writ petition) rejected the representation of the petitioner. The petitioner also challenged the final seniority list as on 06.06.1989, published vide memo dated 20.06.2009 (Annexure-8 to the writ petition) and prayed for quashing memo dated 30.04.2009 (Annexure-7 to the writ petition), memo dated 20.06.1989 (Annexure-8 to the writ petition) and also a office note dated 26.03.2009 (Annexure-6 to the writ petition) and inter alia prayed for directing the respondents to give him the benefit of encadrement w.e.f. the year 1988 and consequential promotion etc. 3. Respondent Nos. 1 to 4 filed counter affidavit, inter alia, contending that after the Tripura Forest Service Rules, 1988 came into force, as per Rules, the Selection Committee was constituted headed by the Chairman of the Tripura Public Service Commission and the Committee considered the service records including ACRs of the petitioner and other ACFs for their encadrement and the Selection Committee considering the service records, ACRs and vigilance report etc., found the petitioner not suitable for encadrement and therefore, for the time being he was not encadred but he was encadred in the year 2000 w.e.f. 17.01.2000. For encadrement the petitioner ought to have the bench mark "very good" but he had the bench mark "poor" and therefore, his encadrement could not be considered. Seniority list was published in the year 2005 but the petitioner submitted no representation against draft seniority list and also against final seniority list published by Memo dated 20.06.1989 and so the petitioner has no cause of action at all and the respondents prayed for dismissal of the writ petition. 4. Seniority list was published in the year 2005 but the petitioner submitted no representation against draft seniority list and also against final seniority list published by Memo dated 20.06.1989 and so the petitioner has no cause of action at all and the respondents prayed for dismissal of the writ petition. 4. Respondent No. 4 also submitted counter affidavit, inter alia, stating that the Committee consisting of three members headed by the Chairman of Tripura Public Service Commission was constituted as per the provisions of the Tripura Forest Service Rules and the Committee considered the service records, ACRs and other relevant materials of all officers working in the post of ACF and after considering all relevant materials, the Committee found the petitioner not suitable for encadrement for the time being and accordingly, he was not encadred as per recommendation of the Committee but subsequently in the year 2000 he was not encadred in the cadre of ACF. 5. Learned Sr. counsel, Mr. Chakraborty appearing for the petitioner has submitted that the petitioner was entitled to be encadred w.e.f. the year 1988 after the Tripura Forest Service Rules came into force on 05.06.1988. But the Committee was constituted after about 3(three) years, for the encadrement of the officers working in the ex-cadre post of ACF. Simply considering the vigilance observation noted against the name of the petitioner, he was deprived of the encadrement w.e.f. the year 1988 and his service juniors i.e. respondent Nos. 6 to 16 were given encadered w.e.f. the year 1988 and as a result, they became senior to the petitioner and they got consequential promotion. Since the petitioner was due to be encadred w.e.f. the year 1988, the Committee would not take into consideration the subsequent event i.e. vigilance observation of 1991 and thereby deprive the petitioner from his due. Referring to Annexure-4 to the writ petition, the note initiated by the PCCF, learned Sr. counsel Mr. Chakraborty has submitted that the Committee committed an error by not recommending the name of the petitioner though the petitioner was fit to be recommended for encadrement w.e.f. 1988. Referring to Annexure-4 to the writ petition, the note initiated by the PCCF, learned Sr. counsel Mr. Chakraborty has submitted that the Committee committed an error by not recommending the name of the petitioner though the petitioner was fit to be recommended for encadrement w.e.f. 1988. He has also submitted that State actions must be reasonable and in the case of the petitioner due to wrong action by the Committee constituted for recommendation of the officers for encaderment, the petitioner has been deprived of his fundamental right guaranteed under Article 14 and 16 of the Constitution and hence, this Court is the right forum to remedy the grievances of the petitioner. 6. Learned Addl. G.A., Mrs. A.S. Lodh and learned counsel Mr. Dutta have submitted that the Committee was constituted as per the provisions prescribed in Rule 18 of the Tripura Forest Service Rules. The Committee consisted of 3(three) members headed by the Chairman of Public Service Commission and the other two members of the Committee were the Chief Secretary as the Secretary of the Forest Department of the Govt. of Tripura and the Principal Chief Conservator of Forest and they have considered not only the vigilance observation but also the service records and ACRs of the petitioner and other officers and thereafter made the recommendation of the eligible officers for encadrement. The Committee clearly observed that the petitioner could not be recommended after examination of his service records and so, there was nothing wrong in the recommendation of the Committee and this Court cannot sit as an appellate authority of the decision taken by the Committee which considered all the relevant aspects including the service records of the petitioner and found him unfit for encadrement. 7. I have meticulously gone through the Annexure-2 to the writ petition i.e. the proceedings of the Selection Committee constituted under the provisions of Rule 18 of the TFS Rules. There is no challenge regarding constitution of the Committee. There is also no challenge regarding jurisdiction of the Committee in respect of recommending the officers working as ACF, in ex-cadre post. As I find, the Committee has taken into account not only the vigilance observation but also the ACRs and service records of each of the officers while making recommendation. There is no challenge regarding constitution of the Committee. There is also no challenge regarding jurisdiction of the Committee in respect of recommending the officers working as ACF, in ex-cadre post. As I find, the Committee has taken into account not only the vigilance observation but also the ACRs and service records of each of the officers while making recommendation. At page 3 of Annexure-2 to the writ petition as against the name of the petitioner in the remarks column, it is observed "vigilance clearance issued after censoring unfit". At page 4, the Committee observed "the Selection Committee after considering the service records including ACRs for the period from 1983-84 to 1987-88 in respect of the above mentioned officers classified them as below." The above observation reveals that the Committee taken into consideration not only the vigilance observation but also the service records including ACRs of all the officers including the petitioner and thereafter made recommendation for encadrement of the particular working officer in ex-cadre pose. In para 10 of Annexure-2 to the writ petition the Committee observed-"(10) the Committee after examining the service records of Sri S. Gupta, Assistant Conservator of Forests do not find him as suitable for appointment to the initial constitution of the service at present." In view of the above observation of the Committee, I do not find any force in the argument advanced by learned Sr. counsel Mr. Chakraborty that the Committee refused to recommend the name of the petitioner only based on the vigilance observation in respect of the petitioner rather, I find that the Committee taken into consideration the ACRs and service records of the petitioner and found him not suitable for the time being for encadrement in the post of ACF. 8. State-respondents in para 10 of the counter affidavit very clearly stated that the Committee examined the service records/ACRs and found that minimum bench mark of "very good" was not there in the case of the petitioner and the petitioner was having with the bench mark "poor". This contention of the respondents has not been challenged by the petitioner by filing any rejoinder affidavit or otherwise. It is, therefore, evident that the Committee found the service records and ACRs of the petitioner having with bench mark "poor" and therefore, he was not considered for encadrement w.e.f. the year 1988. This contention of the respondents has not been challenged by the petitioner by filing any rejoinder affidavit or otherwise. It is, therefore, evident that the Committee found the service records and ACRs of the petitioner having with bench mark "poor" and therefore, he was not considered for encadrement w.e.f. the year 1988. It is not the case that simply based on a vigilance observation of 1991, the petitioner was not encadred w.e.f. the year 1988 which was due to him. 9. Learned Sr. counsel Mr. Chakraborty referred the decision of the Apex Court in the case of Food Corporation of India v. M/s. Kamdhenu Cattle Feed Industries, reported in AIR 1993 SC 1601 and submitted that the Committee being a public authority was supposed to act reasonably but in the case of the petitioner, the action taken by the Committee in respect of the petitioner was unfair and not based on any material and hence, this Court should interfere and pass appropriate direction on the official respondents to give the benefit of encadrement to the petitioner w.e.f. the year 1988. In the reported case, the Supreme Court in para 7 and 8 observed thus:- 7. In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no unfettered discretion in public law: A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is ’fairplay in action’. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision-making process in all State actions. To satisfy this requirement of non-arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review. 8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not be itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant’s perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent. 10. There is no quarrel that all State actions must be reasonable and must be according to law. There must be a fair play on the part of the public authority. In the case of the petitioner as already observed hereinbefore, the Committee was constituted as per the provisions prescribed in the Rules and there is no challenge to the authority or jurisdiction of the Committee. The Committee consisted of the Chairman of the Public Service Commission, the Chief Secretary, Govt. of Tripura who was also the Secretary of the Forest Department and the Principal Chief Conservator of Forest and they have considered the service records, ACRs and all other relevant aspects including that of the vigilance report and found him not suitable for encadrement for the time being. It is not the case that simply on the basis of a vigilance observation of 1991, the encadrement of the petitioner was refused. It is not the case that simply on the basis of a vigilance observation of 1991, the encadrement of the petitioner was refused. The petitioner even did not challenge the contention of the official respondents that he was having with the bench mark ’poor’ in his ACR. While the Committee which was constituted according to law considered service records and ACRs of the petitioner and found him unsuitable, this Court while exercising writ jurisdiction cannot sit as an appellate authority to that of the Committee constituted under the Rules and arrive at a contrary finding. The decision referred by the learned Sr. counsel Mr. Chakraborty is totally misplaced and I find nothing to hold that the State action through the Committee was unreasonable in any manner. 11. Further, the Committee held its meeting on 5th July, 1991 and the petitioner was not recommended for encaderment. It was within the knowledge of the petitioner. The final seniority list (Annexure-8 to the writ petition) was published on 20.06.1989 i.e. seniority list as on 06.06.1989. The petitioner did not challenge the recommendation of the Committee and also did not challenge the official seniority list immediately after the Committee recommendation and publication of the seniority list. As it appears from 1991 till 2008, the petitioner was silent. Only on 18.08.2008, the petitioner found himself appropriate to make representation (Annexure-4 to the writ petition) seeking the remedy of encadrement w.e.f. 1988 i.e. after 18 years of the Committee recommendation. Therefore, I am of considered opinion that the case of the petitioner suffers from serious delay and laches and only on that ground the petitioner is not entitled to get any relief. 12. In view of the discussions made above, I find no merit in the writ petition and hence, the writ petition is dismissed. 13. No costs.