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2014 DIGILAW 224 (TRI)

Swapan Kumar Das v. State of Tripura

2014-06-13

S.TALAPATRA

body2014
JUDGMENT S. Talapatra, J. 1. Heard Mr. S.M. Chakraborty, learned senior counsel, assisted by Ms. B. Chakraborty, learned counsel vice Ms. P. Chakraborty, learned counsel on record appearing for the petitioner as well as Mr. S. Chakraborty, learned Addl. Govt. Advocate appearing for the respondents No. 1 to 3. None appears for the respondent No. 4 despite due notice from this court. 2. The factual perspective of the controversy that has fallen for consideration of this court is that the petitioner was duly recommended by the Departmental Promotion Committee, for short the 'DPC', which was held on 04.09.2004 vide Annexure-1 to the writ petition, for promotion to the post of the Superintendent of Taxes with a specific observation that: Three persons only have fulfilled the eligibility criteria including the senior most candidate Shri Swapan Kr. Das. It appears from the Agenda note that it is contemplated to draw up departmental proceedings against Shri Swapan Kr. Das, but simple contemplation can not debar any person from being promoted to the next higher post if he is otherwise eligible. All the candidates were, therefore, found fit for promotion by the committee. But, that recommendation was not acted upon without any reason. Even the respondents No. 1, 2 and 3 have preferred not to file the counter-affidavit. 3. Thereafter, on 10.06.2005, another DPC was convened, evident from Annexure-3 to the writ petition. Even in the DPC minutes there was no reflection why the respondents No. 1 to 3 had held the DPC afresh for the post of Superintendent of Taxes. In para 4 of the minutes of the DPC dated 10.06.2005, it has been held as under: Shri Swapan Kr. Das, Inspector of Taxes is the senior most among all the SC candidates but since a departmental proceeding is pending against him, the finding will be kept in a sealed cover. 1(one) post reserved for SC candidate may remain vacant. 4. Thereafter, pursuant to the recommendation the respondent No. 4 was appointed by the Notification dated 20.07.2005 to the post of Superintendent of Taxes, Annexure-4 to the writ petition. Subsequently, the DPC was again convened on 13.12.2007, when two other Inspectors of Taxes were recommended and they were appointed as the Superintendent of Taxes. However, that DPC had recommended the petitioner and he was promoted alongwith those two Inspectors. 5. Mr. Subsequently, the DPC was again convened on 13.12.2007, when two other Inspectors of Taxes were recommended and they were appointed as the Superintendent of Taxes. However, that DPC had recommended the petitioner and he was promoted alongwith those two Inspectors. 5. Mr. S.M. Chakraborty, learned senior counsel appearing for the petitioner has submitted that even by the second DPC, the petitioner was recommended for promotion, but his recommendation was kept under a sealed cover and after completion of the departmental proceeding, he was promoted to the post of Superintendent of Taxes in the manner as stated. For that purpose, the minutes of the DPC held on 13.12.2007, Annexure-5 to the writ petition, is very relevant. Hence, para 5 of the said DPC minutes is extracted hereunder: In respect of promotion in the SC category, there is only one post vacant. The senior most among the SC candidates coming in the zone of consideration is Shri Swapan Kr. Das. In this respect the findings of the Departmental Promotion Committee held on 10.06.2005 regarding suitability for promotion to the post of Superintendent of Taxes in respect of Shri Swapan Kr. Das, Inspector of Taxes (which was kept in sealed cover) was opened and placed before the Departmental Promotion Committee. The Departmental Promotion Committee, after discussion on the issue, decided that Shri Swapan Kr. Das, Inspector of Taxes, would be promoted against Roster Point No. 20 (SC). Regarding effect of the date of promotion of Shri Swapan Kr. Das, Inspector of Taxes, the Departmental Promotion Committee decided that as Departmental Proceedings were pending against him during the time of meeting of DPC dated 10.06.2005 and though his junior Sri Niranjan Das was considered for promotion in the DPC held on 10.06.2005 and as Sri Swapan Kr. Das, Inspector of Taxes was inflicted punishment by the Department, his case would be considered de novo. Therefore, his promotion would take prospective effect. 6. Mr. Chakraborty, learned senior counsel appearing for the petitioner, has further submitted that by denying the promotion on the basis of the recommendation of the DPC, which was held on 04.09.2004, the respondents have acted arbitrarily and in colourable exercise of power. Though the DPC had categorically cleared the name of the petitioner, but the said recommendation was not acted upon on extraneous consideration. Even in this case, no counter-affidavit has been filed by the respondents to clarify that position. Though the DPC had categorically cleared the name of the petitioner, but the said recommendation was not acted upon on extraneous consideration. Even in this case, no counter-affidavit has been filed by the respondents to clarify that position. True it is that the recommendation is not binding on the appointing authority. But, if such recommendation is not acted upon, that must be informed by reason, not whimsically or arbitrarily. 7. Having regard to the entire aspect of the matter, this court is of the view that the respondents have acted arbitrarily by not appointing the petitioner on promotion to the post of Superintendent of Taxes in terms of the recommendation of the DPC dated 04.09.2004. It smacks on the face of the record that so far the petitioner's case is considered, that recommendation was not acted upon and another DPC had been convened. Thereafter, pursuant to the recommendation of the next DPC, the respondent No. 4 was appointed by the Notification dated 20.07.2005. 8. Having confronted with the records, this court is of the opinion that the petitioner shall be treated as promoted to the post of Superintendent of Taxes from the date when the respondent No. 4, namely Niranjan Das was promoted, inasmuch as, when the petitioner's case was considered for promotion to the post of Superintendent of Taxes by the DPC held on 04.09.2004, there was no departmental proceeding pending against him. The Government must act as a model employer and shall not flout the rule of law, paramount fact of which is absence of arbitrariness. It appears that the entire purpose of convening the second DPC on 10.06.2005 was to deprive the petitioner from the promotion. No doubt, the petitioner was later on awarded punishment after completion of the departmental proceeding. But, when the petitioner was considered for promotion there was no departmental proceeding or any other vigilance objection against him. Moreover, the respondents have not come forward with the records to explain or to provide the reasons as to why the second DPC on the same matter was convened. 9. Having held so, the respondents are directed to treat the petitioner promoted to the post of Superintendent of Taxes from the date when the respondent No. 4, namely Niranjan Das was promoted to the post of Superintendent of Taxes. 9. Having held so, the respondents are directed to treat the petitioner promoted to the post of Superintendent of Taxes from the date when the respondent No. 4, namely Niranjan Das was promoted to the post of Superintendent of Taxes. However, the period from that date of appointment as stated to the actual date of assumption of the charge in the post of the Superintendent of Taxes shall be treated notionally. The petitioner's pay shall be refixed within a period of three months from today and the pecuniary benefit that will accrue for the period from the date of promotion to the date the petitioner had assumed the charge of the Superintendent of Taxes be determined expeditiously. The arrears of pecuniary benefit for such refixation shall as well be released to the petitioner within the time as stipulated. 10. With these observations and directions as indicated above, this petition stands allowed. No order as to costs.