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2014 DIGILAW 195 (TRI)

Niranjan Sarkar v. State of Tripura

2014-05-27

S.TALAPATRA

body2014
JUDGMENT S. Talapatra, J.:- By means of this petition, the petitioner who was serving as the Panchayat Extension Officer w.e.f. 23.09.1995 by way of promotion, has challenged the Notification dated 02.02.2005, Annexure-4 to the writ petition, and prayed for mandating the respondents to consider his promotion to the post of Tripura Civil Service Grade-II (for short, ’TCS Grade-II’), ahead of respondents No. 4 to 14, by granting him full reliefs from 02.02.2005. 2. The petitioner, at the outset has stated that even though he has been promoted to the post of Panchayat Extension Officer on 23.09.1995, but in the seniority list his entry in the post of Panchayat Extension Officer has been shown as 09.04.1997. The petitioner has also pointed out that the ACRs were not really considered by the DPC. According to the petitioner, he is senior to the respondents No. 4 to 14 who have been promoted to the TCS Grade-II by the said notification, pursuant to the recommendation made by the DPC. Thus, the petitioner has contended that even though he was in the zone of consideration, his case was not considered for promotion to the post of TCS Grade-II, without assigning any reason. 3. Mr. A.K. Bhowmik, learned senior counsel appearing for the petitioner has submitted that from the counter-affidavit filed by the official respondents, it appears that since the petitioner did not get the minimum benchmark, which according to the official respondents is ’Very Good’, his case was not considered by the Selection Committee. It further appears that there might be another bottleneck, as the names of the persons who attained the age of 53 on 01.01.2003 were asked not to be sent for consideration. It has been also revealed from the counter-affidavit that, on 16.12.2005, considering the overall grading of the officers in the zone of consideration, the Selection Committee, had made a consolidated select list in order of merit with due regard to the seniority. Mr. Bhowmik, learned senior counsel has further submitted that according to the revised procedure dated 10.06.2004, Annexure-R/3 to the counter-affidavit, the benchmark for promotion to the post of TCS Grade-II would be ’Good’, in terms of clause (2)(a). 4. Mr. T.D. Majumder, learned Govt. Advocate appearing for the official respondents has submitted that the petitioner would be considered under clause (2)(b) of the said revised procedure, dated 10.06.2004. Apart that, Mr. Majumder, learned Govt. 4. Mr. T.D. Majumder, learned Govt. Advocate appearing for the official respondents has submitted that the petitioner would be considered under clause (2)(b) of the said revised procedure, dated 10.06.2004. Apart that, Mr. Majumder, learned Govt. Advocate has submitted that so far the question of incorrect entry in the seniority list in the grade of Panchayat Extension Officer, the petitioner has to approach the competent authority. But, without approaching the competent authority, the petitioner cannot come before this court straightway, seeking the writ of certiorari. For purpose of appreciation, Rule 5 of the Tripura Civil Service Rules, 1967 (for short, TCS Rules, 1967), as amended from time to time, is extracted hereunder: 5. Method of Recruitment: (1) Appointment to the service shall be made by the following methods, namely: (a) Not more than 50 percent of the substantive vacancies which occur from time to time in the authorized permanent strength of the Service shall be filled by direct recruitment in the manner specified in part IV of these rules, and; (b) The remaining such substantive vacancies shall be filled by selection in the manner specified in Part-V of these Rules from amongst the officers specified in Schedule-IV to these Rules. Provided that 75% of the vacancies mentioned in sub-rule (b) above shall be filled by officers holding Group-A posts of Schedule-IV and the remaining 25% of the vacancies shall be filled by officers holding Group-B posts of Schedule-IV. 5. From the above Rule 5 of the Tripura Civil Service Rules, 1967 (for short, ’TCS Rules, 1967’), it reveals that not more than 50% of the substantive vacancies which occur from time to time in the authorized permanent strength of the service shall be filled up by direct recruitment in the manner as specified in Part-IV of the Rules. Part-IV of the Rules deals with direct recruitment. In the case in hand, we are not concerned with the direct recruitment. We are concerned with the promotion. Part-IV of the Rules deals with direct recruitment. In the case in hand, we are not concerned with the direct recruitment. We are concerned with the promotion. Rule 5(1)(b) of the said Rules provides that the remaining substantive vacancies shall be filled up by selection in the manner as specified in Part-V of the Rules from amongst the officers specified in Schedule-IV to the Rules, provided that 75% of the vacancies mentioned in sub-rule (b) above shall be filled up by the officers holding Group-A posts of Schedule-IV and the remaining 25% of the vacancies shall be filled up by the officers holding Group-B posts of Schedule-IV. Rule 14(4) of the TCS Rules, 1967 has been substituted by the TCS (25th Amendment) Rules, 2005 by inserting the following provisions: The Committee shall not consider the cases of officers in the feeder posts who have attained the age of 53 years on the 1st day of January of the year in which the Committee meets. 6. This writ petition has been filed on 19.03.2005, whereas the Selection Committee had been convened on 26.12.2005. The official respondents, by filing a counter-affidavit, have asserted that the name of the petitioner had been sent to the General Administration (Personnel & Training) Department, Govt. of Tripura since the age of the petitioner was below 53 years, as on 01.01.2003. The Selection Committee, however, did not recommend the name of the petitioner. According to Mr. Datta Majumder, learned Govt. Advocate, the petitioner did not get the required benchmark of ’Very Good’ and that is why his case was not considered. 7. From scrutiny of the records, it appears that the petitioner’s name was sent for consideration alongwith others showing his date of entry in the feeder post of Panchayat Extension Officer on 23.09.1995 and, as such, the grievance of the petitioner as to his date of entry in the service in the seniority list had no role in denial of his promotion to the TCS Grade-II. It appears that, since the petitioner was not assessed ’Very Good’ by the DPC on consideration of his ACRs for the preceding five years, he was not considered for promotion to the post of TCS Grade-II. It appears that, since the petitioner was not assessed ’Very Good’ by the DPC on consideration of his ACRs for the preceding five years, he was not considered for promotion to the post of TCS Grade-II. Thus, the controversy boils down to only one point, whether the Selection Committee (DPC) was justified in determining the benchmark as ’Very Good’ in terms of the said revised procedure dated 10.06.2004, Annexure-R/3 to the counter-affidavit, wherein by revising para 2.3.1(i), the following has been inserted: (2) In para 2.3.1, for the sub-para (i) the following shall be substituted, namely- (i) Having regard to the levels of the posts to which promotions are to be made, the nature and importance of duties attached to the posts, a bench mark grade would be determined for each category of posts for which promotions are to be made by selection method. The "Bench Mark" will be as follows:- (a) For promotion to all Group-C, Group-B and Group-A posts or services (excluding induction to Group-A posts) up to and excluding the level of posts carrying the scale of pay of Rs. 12000-18400/- the "Bench Mark" will be "Good". (b) For induction to all Group-A posts or services from lower Groups the "Bench Mark" will be "Very Good". (c) For all posts or services which carry the scale of pay of Rs. 12000-18400/- and above the "Bench Mark" will be "Very Good". The DPC instead of categorising the officers in the zone of consideration as "Good", "Very Good" or "Outstanding" shall, which reference to their "bench mark", categorize and grade them as "fit" or "unfit". The names only of those who are graded as "fit" shall find place in the select panel in the order of their inter-se seniority in the feeder grade and those graded as "unfit" shall not be included in the select panel. There cannot be any supersession among those who are graded as "fit" in terms of their prescribed "bench mark" and their inter-se seniority in the feeder grade shall remain intact. But the candidates must fulfil the conditions prescribed by the concerned Recruitment Rules or the Service Rules. When required number of officers in a descending order has been found for inclusion in the panel sufficient for filling up the vacancies, DPC need not consider the cases of the remaining employees in the zone of consideration. But the candidates must fulfil the conditions prescribed by the concerned Recruitment Rules or the Service Rules. When required number of officers in a descending order has been found for inclusion in the panel sufficient for filling up the vacancies, DPC need not consider the cases of the remaining employees in the zone of consideration. But the DPC has to record a note to that effect in respect of the remaining officers not considered. (3) In para 2.3.1, the sub-para (ii) shall be omitted. 8. It is apparent that for purpose of promotion to all Group-C, Group-B and Group-A posts or services excluding induction to Group-A posts up to and excluding the level of posts carrying the scale of pay of `12000-18400/-, the benchmark will be ’Good’. For induction to all Group-A posts or services from the lower groups, the benchmark will be ’Very Good’. Now, the question is whether the impugned notification dated 02.02.2005, Annexure-4 to the writ petition, was made by way of induction or by way of promotion. For purpose of appreciating the nature of the incident, the relevant part of the notification is extracted hereunder: In pursuance of Rule 16 of the Tripura Civil Service Rules, 1967 read with clause (b) of Sub-Rule (1) of Rule 5 of the said Rules, the Governor, with the concurrence of the Tripura Public Service Commission, is pleased toappoint the following Officers (holding the feeder posts for promotion to Tripura Civil Service Grade-II) to Tripura Civil Service Grade-II in the scale of pay of Rs. 10,000-15,100/- against promotion quota on probation for 2(two) years. [Emphasis supplied] 9. Even though in Rule 5 or under Part-V of the TCS Rules, 1967, the word ’promotion’ has been omitted, rather the word ’selection’ from the post provided in Schedule-IV has been referred. But, from the impugned notification dated 02.02.2005, it appears that the posts mentioned in Schedule-IV of the TCS Rules, 1967 has been referred as the feeder post for promotion to the TCS Grade-II, meaning thereby, the incidence of selecting the persons from the feeder posts to the TCS Grade-II is an exercise of promotion not of induction. The appointment to the service had been made in order of merit, as referred to in sub-rule (4) of Rule 15 with due regard to the provisions specified in the said Rules. The appointment to the service had been made in order of merit, as referred to in sub-rule (4) of Rule 15 with due regard to the provisions specified in the said Rules. Therefore, the respondents cannot say that the selection exercise had been entirely governed by the said revised procedure as referred in the memorandum dated 10.06.2004, rather the promotion had been fundamentally governed by the TCS Rules, 1967. However, as mentioned in Rule 13 of the said Rules, the Selection Committee had followed some part of the procedure as mentioned in the said revised procedure dated 10.06.2004. According to Schedule-IV of the TCS Rules, 1967, the post of Panchayat Extension Officer falls in the category of Group-A posts for purpose of selection to the TCS Grade-II. 10. There is no reference in the said procedure or in any other provision, except in the said Schedule IV as regards the category of posts or categorisation of these posts. Therefore, in which category the particular post falls has to be gathered from what has been provided in the TCS Rules, 1967, inasmuch as, the said Rules, in view of the revised procedure, has to be followed, as the revised procedure provides that the candidates must fulfil the conditions prescribed by the concerned Recruitment Rules or the Service Rules. That apart, for promotion to the post excluding the level of posts carrying the scale of pay of ` 12000-18400/- above, the benchmark will be "Good". Indisputably, the scale of pay for the TCS Grade-II is `10000-15100/-. If the incidence is not promotion, but induction, in that case, the benchmark will be ’Very Good’. The word ’induction’ has not been defined anywhere. In ordinary parlance, all appointments including promotions are embraced by the word ’induction’. 11. Mr. T.D. Majumder, learned Govt. Advocate, at one point of time sought to argue that the appointment to all Grade-A posts or services from lower groups is induction and, therefore, the benchmark will be ’Very Good’. This submission may appear attractive at its first blush, but what is not there in the Rules or the revised procedure cannot be read into. This court is not quite agreeable to such laboured interpretation when the categorisation made in the Schedule IV of the TCS Rules, 1967 does not leave any room for ambiguity for purpose of appointments to be made under Rule 5(6) of the TCS Rules, 1967. This court is not quite agreeable to such laboured interpretation when the categorisation made in the Schedule IV of the TCS Rules, 1967 does not leave any room for ambiguity for purpose of appointments to be made under Rule 5(6) of the TCS Rules, 1967. That apart, the impugned notification that has been issued in the name of the Governor shows that the exercise as undertaken by the official respondents was for promoting the persons from the feeder posts to the TCS Grade-II in the scale of pay of ` 10000-15100/-. Having confronted thus, this court cannot say that the incidence of appointment to the TCS Grade-II from the feeder posts is an incidence of induction. 12. There is no doubt that the petitioner has achieved the overall grading ’Satisfactory’, which is equivalent to the granding ’Good’. As such, the Selection Committee ought to have considered the case of the petitioner on merit. Moreover, the petitioner has been denied the due opportunity to be considered for promotion to the post of TCS Grade-II. Hence, it is directed that the Selection Committee shall be reconvened for consideration of promotion of the petitioner and, if the petitioner is found fit to be promoted to the TCS Grade-II, he shall be promoted w.e.f. 02.02.2005, when his juniors were promoted. If there is any shortage of vacancy, the juniormost person from the Scheduled Caste category may be reverted to the feeder post. However, the official respondents are given liberty to save the appointments made by the notification dated 02.02.2005, by creating a supernumerary post for the period till a regular vacancy is available and the said vacancy be adjusted for the purpose of promoting the petitioner to the TCS Grade-II, if he is found fit by the reconvened Selection Committee. 13. With this direction and observation, this petition stands allowed to the extent as indicated above. There shall be no order as to costs.