Research › Search › Judgment

Tripura High Court · body

2016 DIGILAW 112 (TRI)

Birendra Debbarma v. State of Tripura

2016-04-28

S.TALAPATRA

body2016
JUDGMENT : By means of this writ petition the petitioner has challenged the office order No.F.2(86)-Fish(Estt)/2004-05/P dated 20.12.2007, Annexure-6 to the writ petition whereby the respondent No.3 Shri Premsasi Jamatia, the respondent No.4 Shri Brajendra Debbarma and the respondent No.6 Shri Haridas Debbarma were promoted to the post of Fishery Inspector(Group-C, Non-Gazetted) in the scale of pay Rs.5,000-10,300/- on recommendation of the DPC, with immediate effect. 2. Though in the writ petition the petitioner has asserted in the para-8 of the writ petition that “in utter disregard of his seniority, the state respondents promoted the respondent No. 3 to 6 to the post of fishery inspector by an officer order dated 20th December, 2007 superseding the petitioner”, the name of the respondent No.5 Shri Subodh Ranjan Das does not appear in the office order dated 20.12.2007, Annexure-6 to the writ petition. However, from the tentative seniority list of the Fishery Inspector borne in the scale of pay of Rs.5310/--24,000/-, in the pay band, published by the memorandum No.F.2(38)-FISH(ESTT)/02-03 dated 23.08.2014, it surfaces that the respondent No.5, Shri Subodh Ranjan Das was appointed in the post of the Fishery Inspector on 30.04.2011. 3. There is no dispute that the respondents No. 3 to 6 were all junior to the petitioner in the grade of Fishery Assistants. Even the petitioner has produced with the writ petition the office order No.F.2(663)-FISH(ESTT)/94-95 dated 25.04.1997, Annexure-4 to the writ petition whereby the Fishery Assistants including the petitioner were confirmed in the said post with effect from 01.01.1997. It would be apparent from the said list, which according to the petitioner, has been prepared in order of seniority, that the name of the petitioner figured at serial No. 186 whereas the name of the respondents No. 3, 4, 5 and 6 appeared at serial No. 187, 188, 189 and 190 respectively. That apart, in the para-7 of the writ petition the petitioner has further asserted that the respondents No.3 to 6 were junior to the petitioner in the grade of Fishery Assistants. In reply to that paragraph, the respondents No. 1 and 2 in their counter-affidavit have admitted that respondents No. 3 to 6 were junior to the petitioner in the grade of Fishery Assistants. 4. In reply to that paragraph, the respondents No. 1 and 2 in their counter-affidavit have admitted that respondents No. 3 to 6 were junior to the petitioner in the grade of Fishery Assistants. 4. By virtue of his seniority the petitioner was promoted to the post of Investigator (Statistics) initially on ad-hoc basis with other two officers by the office order under No.F.2 (689)-FISH (ESTT)/95-96 dated 20.11.1995, Annexure-2 to the writ petition and thereafter the petitioner was regularized by the office order of the even No. dated 22.04.1997, Annexure-3 to the writ petition with effect from 01.01.1996. Along with the petitioner, whose name appears at serial No.2 of the said office order dated 22.04.1997, names of two other officers namely Sri Ugyajoy Mog and Sri Rakhal Chandra Das also figured inasmuch as their ad-hoc appointment in the post of Investigator (Statistics) was also regularized with effect from 01.01.1996. 5. When the respondents No. 3, 4, 5 and 6 were promoted to the post of Fishery Inspector by the office order dated 20.12.2007, even though the petitioner was senior to the respondents No. 3 to 6 his name was not considered, perhaps for the reason that in the meanwhile the petitioner was promoted to the post of Investigator (Statistics) with effect from 01.01.1996. It is to be pointed out that the post of Investigator (Statistics) was borne in a lower pay scale being Rs.1300-3220/-(pre-revised) in comparison to the post of the Fishery Inspector which was borne in the scale of Rs.1450-3710/- (pre-revised). The petitioner has himself asserted that he was promoted to the post of Investigator (Statistics) which is a post lying between the post of the Fishery Assistant and Fishery Inspector. The respondents No.3 to 6 were directly promoted to the post of Fishery Inspector from the post of Fishery Assistant by the said order dated 20.12.2007 without considering the petitioner's case and thus the state respondents have caused virtual super session of the petitioner by the respondents No. 3 to 6. The respondents No.3 to 6 were directly promoted to the post of Fishery Inspector from the post of Fishery Assistant by the said order dated 20.12.2007 without considering the petitioner's case and thus the state respondents have caused virtual super session of the petitioner by the respondents No. 3 to 6. The petitioner has submitted that one of the Investigator (Statistics) namely Rakhal Chandra Das whose name has figured in the office order dated 22.04.1997 filed a writ petition being W.P.(C) No. 473 of 2006 in the identical facts and circumstances urging for a direction to give him the benefits of promotion to the post of Fishery Inspector from the date on which his junior was promoted to the post of Fishery Inspector. For purpose of reference the observation made in the judgment and order dated 05.06.2014 delivered in the said writ petition being W.P.(C) No. 473 of 2006 is relevant to be reproduced and accordingly the same is reproduced here under: “It is an admitted position that the petitioner was promoted to the post of Investigator in the year 1995 in the pay scale of Rs.1,300-3,220/-. The petitioner accepted the promotion and enjoyed the promotional post. His junior, i.e. the respondent No.3, admittedly was promoted in the post of Fishery Inspector in the year 2001(Annexure-5 to the writ petition) in the pay scale of Rs.5,000-10,300/-. It is also an admitted position that the post of Fishery Inspector is a superior post of Investigator. It is contended by the respondents that the post of Investigator is not the feeder post of Fishery Inspector, and therefore, the petitioner could not be promoted. There is nothing to show that the petitioner was informed or any option was taken from the petitioner while promoting him to the post of Investigator that he will not get any further promotion to any superior post. Under such circumstances, it cannot be accepted that the petitioner since was promoted to the post of Investigator he could not be promoted to the post of Fishery Inspector, and therefore, his juniors were promoted to the post of Fishery Investigator.” Finally it has been observed by this court by the judgment and order dated 05.06.2014 as follows: “Therefore, I find no reason at all to hold that the writ petition suffers from delay and laches. It is submitted at the Bar that the petitioner has retired in the meantime. It is submitted at the Bar that the petitioner has retired in the meantime. I have no hesitation to arrive at a conclusion that the petitioner was entitled to get the benefit of promotion in the post of Fishery Inspector at least from the date his junior, i.e. respondent No.3 was promoted to the post of Fishery Inspector, i.e. 2nd February, 2001. The respondents, are therefore, directed to give all service benefits to the petitioner in the post of Fishery Inspector from the date his junior, i.e. the respondent No.3 was promoted to the post of Fishery Inspector, i.e from 02.02.2001. All the benefits as per rules should be given to the petitioner within three months from today.” 6. The petitioner has further asserted that he came to know of the incident of the promotion by virtue of the office order dated 20.12.2007 only when the tentative seniority list of Fishery Inspectors was published by the memorandum dated 23.08.2014. In the meanwhile, the petitioner was appointed on promotion to the post of the Fishery Inspector from the post of Investigator (Statistics) on 24.07.2012, as is evident from the final seniority list of the Fishery Inspectors working under the Department of Fisheries, Government of Tripura as published by the memorandum dated 17.01.2013, Annexure-R/19 of the counter-affidavit filed by the respondents No. 1 and 2. The petitioner has been shown at serial No.50 whereas the respondent No.5 has been shown at serial No.38 and the names of the respondents No. 3, 4 and 6 have not appeared in the said seniority list as it has been asserted that by that time they had been further promoted to the post of Fishery Officer, borne in the scale of Rs.2,000- 4,410/-(pre-revised) corresponding to Rs.9,570- 30,000/- with the grade pay of Rs.3,500/- (PB-3). Since the dispute centers around the promotion to the post of Fishery Inspector, this court will not embark on further discussion or would not lay the materials relating to the promotion of the respondents No. 3, 4 and 6 to the post of Fishery Officer. 7. By this writ petition, after almost 7(seven) years the petitioner has challenged the order dated 20.11.2007 couched with a prayer for direction to appoint him to the post of Fishery Inspector with effect from 20.12.2007 when his juniors in the grade of Fishery Assistants viz. 7. By this writ petition, after almost 7(seven) years the petitioner has challenged the order dated 20.11.2007 couched with a prayer for direction to appoint him to the post of Fishery Inspector with effect from 20.12.2007 when his juniors in the grade of Fishery Assistants viz. the respondents No. 3, 4, 5 and 6 were promoted to that post of Fishery Inspector and to have all consequential financial and service benefits. The respondents by filing an elaborate counter affidavit have submitted that the writ petition is hit by delay and laches and as such the benefit given by the judgment and order dated 05.06.2014 cannot be extended to the petitioner. After such a long time when the matters relating to the promotion to the post of Fishery Inspector have been consolidated and the respondents No. 3, 4 and 6 have been promoted further to the post of Fishery Officer this writ petition cannot be maintained. That apart, the respondents No.1 and 2 have submitted that it would be apparent from the extant Recruitment Rules that the post of Fishery Assistant is the only post borne in the feeder grade for promotion to the post of Fishery Inspector. From the notification dated 31.07.1979, Annexure-R/10 to the counter-affidavit, it would surface that the post of Fishery Inspector is a non-selection post and is filled up 100% by promotion from amongst the Fishery Assistants [see Rule 10, where the method of recruitment has been provided]. On the basis of that, those respondents have contended that since the Recruitment Rules do not permit to consider an Officer who had been appointed to the post of Investigator (Statistics) inasmuch as that post is not included in the feeder post. By virtue of the Recruitment Rules as published in the Tripura Gazette dated 18.05.1996, Annexure-R/9 to the counter-affidavit, the petitioner was not considered rightly. However, the respondents have contended that the Recruitment Rules for the post of Fishery Inspector have been overhauled by way of amendment as published by the notification dated 14.11.2011, Annexure-R/18 to the counter-affidavit. In the said Recruitment Rules, Rule 10 provides that 10% of the post shall be filled up by promotion from amongst the Investigator (Statistical). Accordingly the petitioner has been promoted in terms of the amended Recruitment Rules to the post of Fishery Inspector with effect from 24.07.2012. As such the petitioner cannot have any legitimate grievance whatsoever. In the said Recruitment Rules, Rule 10 provides that 10% of the post shall be filled up by promotion from amongst the Investigator (Statistical). Accordingly the petitioner has been promoted in terms of the amended Recruitment Rules to the post of Fishery Inspector with effect from 24.07.2012. As such the petitioner cannot have any legitimate grievance whatsoever. By filing the rejoinder, the petitioner has not only reiterated the stand taken in the writ petition but also stated that by the order dated 24.07.2012, Annexure-5 of the writ petition, the petitioner was promoted to the post of the Fishery Inspector with immediate effect. 8. Mr. A.K. Bhowmik, learned senior counsel appearing for the petitioner has submitted that while the petitioner was appointed to the post of Investigator (Statistics) no option or consent of the petitioner was obtained. When the petitioner was promoted to the post of Investigator (Statistics) at that the said post, it was a dead-end post and there was no avenue for promotion or upward movement from the said post. But the post of Fishery Assistant which is borne in the lower pay scale was in the feeder grade for promotion to the post of Fishery Inspector. As a result, for no fault of the petitioner he was not promoted to the post of Fishery Inspector when the respondents No. 3, 4, 5 and 6 were promoted by the office order dated 20.12.2007, Annexure-6 to the writ petition iniquitously. 9. There is no dispute that the petitioner was senior to the respondents No. 3, 4, 5 and 6 in the grade of Fishery Assistants. Despite that position, the petitioner was not considered for promotion to the post of Fishery Inspector. While this court dealing with a case of the similarly circumstanced person holding the post of Investigator (Statistics), it has been observed that it cannot be accepted that the petitioner since was promoted to the post of Investigator (Statistics) he could not be promoted to the post of Fishery Inspector but his junior borne in the grade of Fishery Assistant could be promoted to the post of Fishery Inspector. 10. Mr. Bhowmik, learned senior counsel appearing for the petitioner has quite emphatically submitted that the said judgment and order dated 05.06.2014 has been implemented by the respondents No. 1 and 2 and hence the petitioner is entitled to get the similar benefit. 10. Mr. Bhowmik, learned senior counsel appearing for the petitioner has quite emphatically submitted that the said judgment and order dated 05.06.2014 has been implemented by the respondents No. 1 and 2 and hence the petitioner is entitled to get the similar benefit. As this case relates to promotion and release of pay and allowances, the relief’s as claimed in the writ petition cannot be defeated by raising the plea of delay and laches, inasmuch as the petitioner is getting the less pay everyday. 11. From the other side, Mr. N. Majumder, learned counsel appearing for the respondents No. 1 and 2 has submitted that since in the Recruitment Rules for the post of Fishery Inspector, the post of Investigator (Statistics) was not in the feeder grade, no promotion in favour of the petitioner to the said post could be made for obvious reasons. By means of the amendment as stated, the bottleneck in the Recruitment Rules has been removed for giving berth of the post of Investigator (Statistics) in the feeder grade for promotion to the post of Fishery Inspector. Mr. Majumder, learned counsel appearing for the respondents No. 1 and 2 has submitted that by efflux of time the office order dated 20.12.2007 has been consolidated and if such consolidation is disturbed it will have the cascading effect. Since the petitioner did not approach this court within a reasonable time, this writ petition in the context of this case is liable to be dismissed. 12. From the rival contentions two questions those falls for consideration of this court can be formulated as under: (i) Whether the writ petition is bound to fail on the touchstone or principles of delay and laches, and (ii) Whether the petitioner is entitled to get the promotion to the post of Fishery Inspector with effect from 20.12.2007 with all consequential benefits? 13. When the promotion to the post of Investigator (Statistics) was made it was admittedly so made on the basis of the seniority position of the petitioner in the grade of Fishery Assistant and no option or consent of the petitioner was taken for causing promotion to the post of Investigator (Statistics). The petitioner had entered thus in a dead-end post which was carrying a lower scale in comparison to the post of the Fishery Inspector. The petitioner had entered thus in a dead-end post which was carrying a lower scale in comparison to the post of the Fishery Inspector. In terms of the extant rules, only the Fishery Assistants were included in the feeder grade for promotion to the Fishery Inspector, not the post of Investigator (Statistics) which is lying in between the post of Fishery Inspector and the Fishery Assistant. The situation of this nature might emerge in future was not definitely taken care of while framing the Recruitment Rules for the post of Fishery Inspector. As a result, the senior Fishery Assistant who had occasion to be promoted to the post of Investigator (Statistics) suffered for not being promoted to the post of Fishery Inspector carrying much higher scale. The entire arrangement cannot survive the test of reasonableness but the said Recruitment Rule as published by the notification dated 31.07.1979, Annexure-R/10 has not been challenged by the petitioner, but in the considered opinion of this court, absence of challenge does not take away the authority of this court to examine the reasonableness of the said Recruitment Rules as published by the notification dated 31.07.1979. Under such circumstances this court has the authority to ignore such rules inasmuch as those rules defy the basic constitutional structure of reasonableness as envisaged in the Article-14. Hence, this court is of the view that the said Recruitment Rules as published by notification dated 31.07.1979 cannot stand in the way of petitioner's claim for promotion to the post of Fishery Inspector based on his seniority position in the grade of Fishery Assistants, even after his promotion to the post of Investigator (Statistics). 14. The respondents No. 1 and 2 have realized much later that the unreasonableness in the arrangement of the rules were required to be removed and accordingly by the amendment as carried out by the notification dated 14.11.2011, Annexure-R/11 to the counter-affidavit filed by the respondents No. 1 and 2, the following provision has been inserted under Rule 10 of the Recruitment Rules for the post of Fishery Inspector: “By promotion failing which by direct recruitment. (i) 10% by promotion from amongst the Investigator (Statistical) having 1(one) year training in Fishery Science & extension from T.F.T.I., Udaipur and 5(five) years experience in the grade failing which post will be filled up from Fishery Asstt. and failing which by direct recruitment.” 15. (i) 10% by promotion from amongst the Investigator (Statistical) having 1(one) year training in Fishery Science & extension from T.F.T.I., Udaipur and 5(five) years experience in the grade failing which post will be filled up from Fishery Asstt. and failing which by direct recruitment.” 15. This court by the judgment and order dated 05.06.2014, relevant part of which has been reproduced, has already ironed out the crease and given the benefits to an Investigator (Statistics) who was deprived and superseded in the matter of promotion to the post of Fishery Inspector with all consequential benefits from the date when his junior was appointed in the said post of Fishery Inspector. It has been admitted by Mr. N. Majumder, learned counsel appearing for the respondents No. 1 and 2 that the said judgment has already been implemented. In view of that, the petitioner is also entitled to get the similar benefit. Now let the question of delay and laches be examined. Doctrine of delay and laches is not an inflexible principle, it depends on so many other aspects. Ordinarily an aggrieved person must approach the court within a reasonable time so that the time does not stand in the way of giving effective justice. Notwithstanding that principle, it appears that the cause is a continuing one. For illustration, when the dispute relates to pay and allowances, it may not be a shut case in certain circumstances. We are confronted in this case with such circumstances where simply on the ground of delay and laches this writ petition cannot be dismissed. The apex court in Tukaram Kana Joshi And Ors. vs. Maharashtra Industrial Development Corporation & Ors. reported in (2013) 1 SCC 353 has enunciated the law in lucid term which reads as under: “Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if the whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third party interest is involved. Delay laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if the whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third party interest is involved. Thus analyzed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience.” And again: “No hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after 185, Collector (LA) v. Katiji: (1987) 2 SCC 107 , Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur: (1992) 2 SCC 598 , Dayal Sinch v. Union of India: (2003) 2 SCC 593 and Shankara Coop. Housing Society Ltd. v. M. Prabhakar: (2011) 5 SCC 607 .” 16. But this court, in view of approaching this court belatedly, is not inclined to give the financial benefits for the period beyond three years preceding the date of filing the writ petition i.e. 27.10.2014 and hence the petitioner shall be deemed to have been promoted to the post of Fishery Inspector with effect from 20.12.2007 and his pay and allowances shall be fixed notionally till 31.10.2011, but thereafter he would be entitled to get the financial benefits for his promotion to the post of Fishery Inspector from 20.12.2007 when the respondents No. 3, 4, 5 and 6 were promoted in that post. It goes without saying that the petitioner shall be treated senior to the respondents No.3, 4, 5 and 6 in the grade of Fishery Inspectors for all purposes. If the petitioner is eligible for promotion to the post of Fishery Officer, his promotion to the said post shall also be considered on the date when the respondents No. 3, 4 and 6 were promoted in the said post to meet the legitimate expectation of the petitioner. The respondents are further directed to release the benefits of the petitioner within a period of 6(six) months from the date when the petitioner shall furnish a copy of this order to the respondents No. 1 and 2. 17. The respondents are further directed to release the benefits of the petitioner within a period of 6(six) months from the date when the petitioner shall furnish a copy of this order to the respondents No. 1 and 2. 17. Having held so, the writ petition stands allowed to the extent as indicated above. There shall be no order as to costs.