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2014 DIGILAW 62 (TRI)

Samiran Deb v. State of Tripura

2014-02-10

S.C.DAS

body2014
JUDGMENT S.C. Das, J.:- Both the writ petitions were heard together on the request of learned counsel of both side. Both the writ petition stands on same fact and identical question of law raised in both the cases. Hence, both the cases were heard together and this single judgment shall govern both the cases. In both the writ petitions, the writ-petitioners filed relevant documents and for the sake of convenience, document filed in W.P. (C) No. 265 of 2012 has been referred hereunder in course of discussion. 1.1. Briefly stated the facts, writ petitioners pleaded, are that they were serving as Constable of Police appointed on different dates for a pretty long time. In the year 2010, a selection process through departmental examination, as per Recruitment Rules was initiated for filling up of vacant posts of Assistant Sub Inspector of Police (for short, ASI) (Un-Armed Branch) (for short, UB) (Men & Women) by the Director General of Police, Tripura. All the petitioners participated in the selection process and their names appeared in the select list, prepared and published by the respondent, Director General of Police (for short, DGP), on 18.12.2010 (Annexure P-2 to the writ petition). 1.2. Persons appeared in the select list up to Serial No. 54, as per merit position, were given promotion to the post of ASI. On 15.10.2011, three more persons from the Select List appeared at Serial No. 55 to 57 were again promoted (Annexure P-3 to the writ petition). Further on 02.05.2012, four persons belonging to the SC category whose names appeared in Serial Nos. 154, 159, 165 and 166 of the select list were also promoted. It is the case of the petitioners that though there were vacancies, the petitioners were not promoted to the post of ASI by the respondents whereas, the DGP by issuing Memo dated 18.05.2012 (Annexure P-7 to the writ petition) again constituted a DPC and called for fresh departmental examination for promotion to the post of ASI (UA) both for man and woman for total 45 vacancies. 1.3. It is contended by the petitioners that pursuant to an application filed by one Md. 1.3. It is contended by the petitioners that pursuant to an application filed by one Md. Safik Miah, a Constable of Police, under the RTI Act seeking information as to the vacancy position of ASI as on 31.12.2011, the authority in response thereto in writing informed that as on 31.12.2011, 33 posts (ST 19, UR 14) of ASI (UB) Men and one post of ASI (RB Women) (SC category) was available/lying vacant. That information collected through RTI is annexed as Annexure P-5. It is the case of the petitioners that 14 UR vacancies were available for promotion to the post of ASI as on 31.12.2011, but the petitioners were deprived from giving promotion though on 15.10.2011 and 02.05.2012 promotions from the select list were given to some other persons (Annexure P-3 and P-4). 1.4. It is the case of the petitioners that as per the Recruitment Rules, for the post of ASI of Police (Un-Armed Branch) (Men and Women), 100% posts are to be filled up by promotion from the eligible candidates as prescribed in item Nos. 10 and 11 of the Schedule to the Rules. The petitioners contended that Annexure II to the Schedule has prescribed the Rules of Procedure in respect of examination etc. It is the case of the petitioners that once a panel is prepared and published, it shall remain valid till the entire panel is exhausted. It is also the case of the petitioners that once a written test and practical test is conducted and a candidate is selected, he should not be required to appear at any subsequent examination and once the panel is prepared, the candidate should be promoted as per that panel. The petitioners made representation to the authority for giving them promotion pursuant to the select list already prepared, but the authority did not consider the prayer and hence, the writ petition is filed praying for giving necessary direction to the respondents for giving promotion to the petitioners pursuant to the select list (Exbt. P-2). 2. Respondents contested the writ cases by filing joint counter affidavits. Going through the counter affidavits, it is found to be difficult to discern as to what the respondents actually wanted to plead and what is the clear stands of the respondents. P-2). 2. Respondents contested the writ cases by filing joint counter affidavits. Going through the counter affidavits, it is found to be difficult to discern as to what the respondents actually wanted to plead and what is the clear stands of the respondents. What may be understood from the whole counter affidavits are that there was no such vacancies for UR category candidates after promotion up to Serial No. 54 of the select list. It is not disputed that the petitioners were eligible for promotion to the post of ASI and their names appeared in the select list, but because of the fact that there was no further vacancy for promotion of UR category candidates, the petitioners could not be promoted. It is also contended by the respondents that after the departmental examination and interview, a select list was prepared and published, but DPC recommended candidates only to the extent vacancies were available. According to the respondents, at the relevant point of time, when the selection process was taken up there were 42 existing vacancies (UR 31 and SC 11) and 40 anticipated vacancies (UR 24, SC 16), total 82 vacancies. DPC accordingly, recommended for filling up of those posts as per Rules. Since the vacancies meant for UR category candidates were exhausted, the petitioners could not be promoted to the post of ASI. Memo dated 18.05.2012 (Annexure P-7 to the writ petition) has been issued when new vacancies created for filling up and there is nothing wrong in the action taken by the respondents. 3. Heard learned counsel, Mr. Somik Deb for the petitioners of W.P. (C) No. 265 of 2012 and learned counsel, Mr. A. Bhowmik for the petitioner of W.P. (C) No. 325 of 2012 and learned Additional GA, Mr. S. Chakraborty for the respondents in both the cases. 4. It has been argued by the learned counsel, Mr. Deb as well as learned counsel, Mr. Bhowmik that once a select list is prepared after conducting written test and interview, the Rule prescribes that the select list shall remain valid until it is completely exhausted. The respondents invited application from eligible candidates for filling up of the vacancies existing and anticipated of the post of ASI and the petitioners appeared in the selection process and their names appeared in the select list. The respondents invited application from eligible candidates for filling up of the vacancies existing and anticipated of the post of ASI and the petitioners appeared in the selection process and their names appeared in the select list. Whereas, before giving them promotion, DGP has again issued impugned Memo dated 18.05.2012 (Annexure P-7) inviting fresh departmental examination keeping the select list dated 18.12.2010 alive. It is also contended by learned counsel of the petitioners that from the select list dated 18.12.2010 (Annexure P-2), candidates were also promoted on 15.10.2011 and 02.05.2012. Whereas, the petitioners were not promoted though there were vacancies available for UR category candidates, which is reflected in Annexure P-5 i.e. the information collected through RTI. This is a sheer discrimination on the part of the respondent (DGP) in giving promotion to the UR category candidates and hence, necessary direction should be issued to the respondents to give promotion to the petitioners in the existing vacancy of UR category candidates. 5. Learned Additional GA, Mr. Chakraborty countering the submissions of learned counsel, Mr. Deb and learned counsel, Mr. Bhowmik has submitted that there were altogether 82 posts consisting of existing and anticipated vacancies at the time when the selection process was initiated. There were only 55 posts for UR category candidates and promotions were given to those 55 posts. Since there was no further vacancy, promotion to the petitioners could not be given. There was nothing wrong in the action taken by the respondents and hence, learned Additional GA prayed for dismissal of the writ petitions. 6. Recruitment, promotion etc. to the services should be according to the provisions prescribed in the Recruitment Rules, is the settle position of law. Let us, therefore, first have a glimpse to the Recruitment Rules namely, "Recruitment of Assistant Sub-Inspector of Police (Un-Armed Branch) (Men and Women) Rules, 2007". The Rule was notified on 08.07.2008. It seems to be exhaustive. Schedule appended to the Rule prescribes the method of recruitment. Paragraph 10 of the Schedule prescribes method of Recruitment, 100% by promotion. Let us, therefore, first have a glimpse to the Recruitment Rules namely, "Recruitment of Assistant Sub-Inspector of Police (Un-Armed Branch) (Men and Women) Rules, 2007". The Rule was notified on 08.07.2008. It seems to be exhaustive. Schedule appended to the Rule prescribes the method of recruitment. Paragraph 10 of the Schedule prescribes method of Recruitment, 100% by promotion. Paragraph 11 prescribes that the recruitment shall be "From amongst the Head Constables (both AB/UB) (Men & Women), Naiks (Men & Women), LNK (Men & Women), Constables (UB/AB) (Men & Women) and Constable Armourer (Men & Women) as have two years service as Constable on 1st day of January of year in which DPC is convened on the basis of departmental examination as prescribed by the State Govt. ...." 7. Annexure II to the Schedule is very important, which prescribes the relevant Rules regarding the examination, the select list etc. Paragraph 4, 5 and 6 to Annexure II reads as follows:-- 4. Only those who qualify in the part I (Written test) securing 50% of total marks, will be declared to have passed the Part I, and will be eligible for the Part II (Practical test). Similarly, only those who qualify in the part II (Practical test) securing 50% of total marks, will be eligible for part III. The result of Part I and II shall be declared separately. A candidate securing 60% in part III (interview, service records and length of service) will be considered for inclusion in the panel (select list) for promotion in the order of merit according to the availability of vacancies. When two or more candidates secure equal marks they shall be arranged in the list as per their interse seniority. Panel thus formed will remain valid till exhausted. 5. Those declared passed once in Part I and or Part II will not be required to re-appear in the same part of examination. The panel of the candidates fit for promotion to the rank of Assistant Sub-Inspector of Police of Unarmed branch (Men & Women), shall be prepared in order of merit in accordance with the result of Part III only. Separate panels will be prepared for candidates belonging to General, ST and SC categories. The panel for unreserved (General) category will include the names of candidates of all categories in the order of merit. Separate panels will be prepared for candidates belonging to General, ST and SC categories. The panel for unreserved (General) category will include the names of candidates of all categories in the order of merit. The panels for ST and SC category will contain respectively the names of candidates of ST & SC categories only in order of merit. The total number of names in a panel shall not be more than the number of existing vacancies plus the number of vacancies anticipated during the coming one year. 6. Those who have qualified in written test or practical test in previous examinations held so far, will not be required to appear at subsequent examinations. 8. According to the above procedure prescribed in the Rules, there shall be examination in three parts. Part I consists of written tests, Part II Practical test and Part III interview, service records, examination etc. A candidate coming out successfully in Part I will be able to enter in Part II practical test and while coming out successful in Part II will be entitled to interview as prescribed in Part III tests. According to the above Rules, the select list shall be prepared only on the basis of interview part i.e. Part III and a candidate, who will secure 60% in Part III interview part will enter in the select list. This procedure appears to be quite contrary to the settled law of the land in respect of selection of candidates for appointment/promotion. Nobody has challenged the Rules and so, I refrain myself from further comment on the foundation of the said Rules. It is clearly stipulated in Paragraph 4 of Annexure II that a panel prepared will remain valid till exhausted. Admittedly, Annexure P-2 is a panel prepared following the interview process as prescribed in Paragraph 4 of Annexure II of the Rules and so, the panel shall remain valid till the entire panel is exhausted. 9. I cannot agree with the submission of learned Additional GA that Annexure P-2 is the select list and not the panel prepared by the department for promotion. If it was select list and not the panel, the respondents would submit before the Court as to which was the panel prepared by the department for promotion of candidates to the post of ASI. If it was select list and not the panel, the respondents would submit before the Court as to which was the panel prepared by the department for promotion of candidates to the post of ASI. The headings of Annexure P-2 i.e. the select list reads:-- MEMORANDUM Enclosed please find herewith the result of Part-III (Interview & Service records) examination for promotion to the rank of ASI of Police (Un-armed Branch). Men (Only for UR & SC candidates) which was held on 19-10-2010 to 21-10-2010 and 26-10-2010 at Agartala and Kumarghat, Tripura for information and necessary action. Sd/- (K. Saleem Ali) Director General of Police, Tripura. With the above words, the select list was forwarded to different authorities under the DGP. There is no other panel prepared separately placed on record by the respondents to show that the panel and the Select List were something different. Therefore, I have no hesitation to hold and to arrive at a conclusion that Annexure P-2 is the select list-cum-panel prepared by the respondent-DGP for promotion to the post of ASI and that panel shall remain alive until it is exhausted. 10. Respondents contended that there were altogether 82 vacancies at the time when the selection process was initiated in the year 2010. Out of those 82 vacancies, 42 were existing vacancies and 40 were anticipated vacancies. The Recruitment Rule prescribes that the total number of names in a panel shall not be more than the number of existing vacancies plus the number of vacancies anticipated during the coming one year. Annexure P-5 to the writ petition i.e. the information obtained through RTI on 10.05.2012 shows that as on 31.12.2011, there were altogether 34 vacancies in the posts of ASI both Men and Women and there were 14 UR vacancies. While the selection process was taken up in the month of October, 2010, possibly the respondents taken into account anticipated vacancy during the period of one year i.e. up to October, 2011. Annexure P-3 and P-4 reveals that in October, 2011 and May, 2012, there were promotions given from the select list prepared in the year 2010. Respondents placed on record no document to show that the vacancy did not increase during the period of one year from the date of initiation of the selection process. Annexure P-3 and P-4 reveals that in October, 2011 and May, 2012, there were promotions given from the select list prepared in the year 2010. Respondents placed on record no document to show that the vacancy did not increase during the period of one year from the date of initiation of the selection process. Be that as it may, the select list prepared after exhausting the written test and interview process shall remain alive till it is exhausted by giving promotion whether in existing vacancy or in anticipated vacancy. It is clearly stipulated in Paragraph 6 of Annexure II of the Recruitment Rules that once a person is qualified in the written test and practical test, he will not be required to appear at subsequent examinations which qualifies the provisions prescribed in Paragraph 4 of the said Annexure II that a panel once prepared shall remain valid till exhausted. So, it is the intention of the law makers that once a panel is prepared of the qualified persons for promotion, it shall be exhausted and that person is not required to appear again in the examination for selection for the purpose of promotion to the post of ASI. The petitioners since were successful in the selection process conducted by the respondents and since their names legitimately appeared in the select list and the select list is alive as per the provisions prescribed in the Rules, and, since there are vacancies also in the UR category of the post of ASI, the respondents were/are bound and under obligation to consider promotion of the petitioners to the post of ASI as per the provisions prescribed in the Rules. 11. Paragraph 7 of the Annexure II prescribes that individuals shall be promoted against available posts strictly in order of merit from the approved list, subject to such adjustment as may be required for giving effect to the provisions of rules relating to representations of SC/ST etc. in public services. While giving the promotion, the respondents are bound to follow the provisions prescribed in Paragraph 7 and shall give promotion to the petitioners strictly in order of merit from the approved list. The list shall remain valid till it is exhausted. 12. Accordingly, the writ petitions are allowed. Memo dated 18.05.2012 (Annexure P-7 to the writ petition) calling for further departmental examination is set aside and quashed. The list shall remain valid till it is exhausted. 12. Accordingly, the writ petitions are allowed. Memo dated 18.05.2012 (Annexure P-7 to the writ petition) calling for further departmental examination is set aside and quashed. It is ordered that the select list prepared and published on 18.12.2010 (Annexure P-2 to the writ petition) shall remain valid till the entire list is exhausted. Respondents are directed to consider giving of promotions to the petitioners as per that select list strictly in order of merit position immediately. The writ petitions are accordingly, disposed of. No order as to costs.