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Tripura High Court · body

2016 DIGILAW 3 (TRI)

Priyatosh Majumder v. State of Tripura

2016-01-08

S.TALAPATRA

body2016
JUDGMENT : Heard Mr. A. Bhowmik, learned counsel appearing for the petitioners as well as Mr. G.S. Bhattacharji, learned counsel appearing for the respondents No. 1 to 3 and Mr. J. Majumder, learned counsel appearing for the respondents No. 4 to 7. 2. By means of this writ petition, the order No.39176- 92/F.8(26)-PHQ/TSR/2011 dated 13.08.2012 (Annexure-P/6 to the writ petition) has been challenged. By that order, the respondents No. 4, 5, 6 and 7 have been appointed on promotion to the post of Subedar (Signal Platoon) on the basis of the DPC recommendation on regular basis. In the said order dated 13.08.2011 the following has also been observed : “The inter-se seniority of the Nb/Subedar (Supervisor Gr-I, Wireless Operator) & Nb/Subedar (Supervisor Gr- II, Radio Technician) under order of promotion to the post of Subedar (Signal Platoon) in TSR shall be maintained with due regard to the TSR (DCSC etc.) Rules, 1986.” From the said note, it abundantly comes to the fore that for purpose of promotion to the post of Subedar (Signal Platoon), Supervisors Gr-I, Wireless Operator and Supervisors Gr- II, Radio Technician used to be considered in terms of the extant rules. 3. The petitioners were initially appointed as the Naib Subedars. The petitioner No.1, namely Priyatosh Majumder was appointed as the Naib Subedar (Signal) on 21.03.2002 whereas the petitioner No.2, namely Jyotishmoy Dey was appointed as the Naib Subedar (Signal) on 12.04.2002 and the petitioner No.3, namely Manoj Kumar was appointed as the Naib Subedar (Signal) on 08.04.2002. After their appointment in the post of Naib Subedar (Signal), two categories of posts, namely Naib Subedar (Operator) and Naib Subedar (Technician) were created by the notification dated 07.10.2002 (Annexure-P/2 to the writ petition). Naib Subedar (Signal), Naib Subedar (Operator) and Naib Subedar (Technician) were distributed under those branches. As a result, all the petitioners were transferred to the newly designated post, Naib Subedar (Technician). 4. By the notification dated 12.02.2011 (Annexure-P/3 to the writ petition), the final combined seniority list of Naib Subedar (Supervisor Grade-II Radio Tech) of TSR Bns. (1st to 13th Bn.) were published. From there, it appears that the petitioners No. 1, 2 and 3 were at Sl. Nos. 1, 2 and 4 respectively. To avoid any sort of confusion, it is to be noted that there was a combined seniority list of Naib Subedar (Supervisor Grade-II Radio Tech) of TSR Battalions. (1st to 13th Bn.) were published. From there, it appears that the petitioners No. 1, 2 and 3 were at Sl. Nos. 1, 2 and 4 respectively. To avoid any sort of confusion, it is to be noted that there was a combined seniority list of Naib Subedar (Supervisor Grade-II Radio Tech) of TSR Battalions. The respondents No. 4, 5, 6 and 7 are from the other wing, namely Supervisor Grade-I Wireless Operator of the TSR Battalions. No combined seniority list of all the wings are available with the writ petition, neither has it been placed before this court. But, from the impugned order dated 13.08.2012 it appears that the concerned DPC considered the Naib Subedars of both the wings for purpose of promotion to the Subedar (Signal Platoon). Denial of promotion to the petitioners has led to filing of this writ petition. 5. According to the petitioners, while considering the promotion as reflected in the impugned order dated 13.08.2012, the DPC has considered the promotion in terms of the amendment of Rule 48(1) of the Tripura State Rifles (Recruitment) Rules, 1984 as published by the notification dated 18.01.2011 (Annexure-P/5 to the writ petition) and the said rule has given effect from the day when the notification dated 18.01.2011 has been published in the Official Gazette. 6. According to Mr. Bhowmik, learned counsel appearing for the petitioners, there were clear 9(nine) vacancies before the notification dated 18.01.2011 and as such the DPC and the respondents No. 1, 2 and 3 had acted illegally by not considering the eligible candidates against those 9(nine) vacancies as stated under the un-amended Rules. The petitioners’ claim is that, they were entitled to be considered against the said 9(nine) vacancies under the un-amended Rules. For purpose of comparison, both the un-amended and the amended rules are extracted hereunder side by side in a tabular form : UNAMENDED 48. Recruitment Rules for the posts of Subedar (Signal  Platoon), (1) Such of these posts of Subedars (Communication) as are not filled under proviso to sub-section(3) of section 5 of the Act, shall be filled by promotion on selection basis from amongst Naib-Subedars who- (a) have passed Grade I of  either Wireless Operators proficiency standard of Radio technician proficiency standard: and (b) have put in at least three years service as Naib Subedars AMENDED 1. Such of these posts of Subedars  (Communication) as are not filled under proviso to Sub-section (3) of Section 5 of the Act, shall be filled by promotion on selection basis, provided that 67 per cent vacant posts shall filled from amongst Naib Subedar (Supervisor Grade-I, Wireless Operator) and 33 per cent vacant posts shall be filled from amongst Naib Subedar (Supervisor Grade-II, Technical) who- (a) have passed Grade-I of either  Wireless Operator proficiency standard or Radio Technician proficiency standard; and (b) have put in at least three years service as Naib Subedars. (c) Provided further that in case of non-availability of requisite number of eligible Naib Subedars (Wireless Operator) or requisite number of eligible Naib Subedar (Radio Technician) the unfilled vacancies of Subedar (Signal Platoon) in the exigencies of Public Service may be filled either by Naib Subedar (Radio Technician) or Naib Subedar (Wireless Operator) in excess of quota as the case may be. 7. There is no dispute that there was clear 9(nine) vacancies of Naib Subedar (Signal Platoon) before the notification dated 18.01.2011 was published, meaning thereby, there was clear 9(nine) vacancies before the amended Rules were given effect to. 8. Mr. J. Majumder, learned counsel appearing for the respondents No. 4, 5, 6 and 7, who have been appointed on promotion to the post of Subedar (Signal Platoon) by virtue of the impugned order dated 13.08.2012 from the UR category, has submitted that the petitioners have utterly failed to project their case as regards that they were within the zone of consideration to be considered under the un-amended rules. Even it cannot be gathered from the records as there was no combined seniority list of Naib Subedars of both the wings. The combined seniority list that has been shown in the writ petition is only the seniority list of the Naib Subedar (Supervisor Grade-II Radio Tech.) and hence there is no basis to approach this court. 9. Mr. G.S. Bhattacharji, learned counsel appearing for the respondents No. 1 to 3, has fairly submitted that, it is true that 9(nine) vacancies that fell vacant prior to issuance of the notification dated 18.01.2011 were not separately considered and those 9(nine) vacancies were considered under the amended rules and the impugned order dated 13.08.2012 is the outcome of the said exercise. G.S. Bhattacharji, learned counsel appearing for the respondents No. 1 to 3, has fairly submitted that, it is true that 9(nine) vacancies that fell vacant prior to issuance of the notification dated 18.01.2011 were not separately considered and those 9(nine) vacancies were considered under the amended rules and the impugned order dated 13.08.2012 is the outcome of the said exercise. But, he has also submitted that the seniority list dated 12.12.2011 is not the combined seniority list of the Naib Subedar (Supervisor Grade-I, Wireless Operator) and Naib Subedar (Supervisor Grade-II, Technical). As such, the petitioners have failed to provide a premise to challenge the said order. 10. In reply, Mr. A. Bhowmik, learned counsel appearing for the petitioners has submitted that the selection of the respondents No. 4, 5, 6 and 7 has been made subject to the outcome of this writ petition vide order dated 09.04.2013 passed in C.M. Appl. No.328/2012 arising from this petition. 11. What has emerged from the rival contentions of the learned counsel on the broader scale is that 9(nine) clear vacancies in the post of Subedar (Signal Platoon) were not considered under the un-amended Rule 48(1) of the Tripura State Rifles (Recruitment) Rules, 1984. But, those vacancies were considered under the amended rules called Tripura State Rifles (Recruitment) Recruitment) (Nineth Amendment) Rules, 2010, which substituted the old rules substantially. As such, there was a grave injustice to the petitioners from having due consideration for promotion to the post of Subedar (Signal Platoon) under the extant rules. But, at the same time another pertinent question has emerged as conciliary to this consideration is that there is no combined seniority list containing the Naib Subedars of both the wings to determine their seniority position and to create the zone of consideration against the available vacancies. 12. Law in this regard is no more res integra. In Arjun Singh Rathore & Ors. Vs. B.N. Chaturvedi & Ors., reported in (2007) 11 SCC 605 , the apex court has held as under : “5. Mr. 12. Law in this regard is no more res integra. In Arjun Singh Rathore & Ors. Vs. B.N. Chaturvedi & Ors., reported in (2007) 11 SCC 605 , the apex court has held as under : “5. Mr. Calla, the learned senior counsel for the appellants has argued that the matter was fully covered by the judgment of this Court in State of Rajasthan v. R.Dayal [ 1997(10) SCC 419 ] wherein it had been held that the vacancies to be filled by promotion were to be filed under the rules which were in operation on the date when the vacancies had occurred. Relying on and referring to an earlier judgment in Y.V.Rangaiah v. J. Sreenivasa Rao [ (1983) 3 SCC 284 ] it was opined as under: (SCC p. 422, para 8) “8. …This Court has specifically laid (sic) that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by W.P. (C) 290 of 2008 Page 11 of 12 the amended Rules. Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in in-accordance with the law existing as on the date when the vacancies arose. 6. The above legal position has not been seriously disputed by the learned counsel for Respondents 6 and 7. We are therefore of the opinion that the vacancies which had occurred prior to the enforcement of the Rules of 1998 had to be filled in under the Rules of 1988 and as per the procedure laid down therein. We are therefore of the opinion that the judgment of the learned Single Judge needs to be restored. We order accordingly.” [Emphasis supplied] 13. Similar views were expressed by the apex court in A. Manohran & Ors. Vs. Union of India & Ors., reported in (2008) 3 SCC 641 , wherein the apex court has held that : “25. Furthermore, the Regulations have been amended only with effect from 11.08.2004. It would have a prospective effect. It cannot be applied retrospectively. Similar views were expressed by the apex court in A. Manohran & Ors. Vs. Union of India & Ors., reported in (2008) 3 SCC 641 , wherein the apex court has held that : “25. Furthermore, the Regulations have been amended only with effect from 11.08.2004. It would have a prospective effect. It cannot be applied retrospectively. Any vacancy which has arisen prior to coming into force of the said amended Regulations must be filled up in terms of the law as was existing prior thereto. (State of Rajasthan v. R. Dayal (1997) 10 SCC 419 , SCC para 8.) [Emphasis supplied] 14. On the basis of the said principle, this court in Rajesh Ghosh & Ors. Vs. State of Tripura & Ors., reported in (2015) 1 TLR 740, has directed to consider filling up of 12% of the vacancies in Grade-IV in the rank of Assistant Engineer existing prior to 23.04.2007 to be filled up on the basis of the departmental examination, which mode has been deleted by the subsequent amendment. 15. Similar view was also expressed by the full bench of the Gauhati High Court in Bholanath Bhattcharjee & Ors. Vs. State of Tripura & Ors., reported in (1994) 1 GLR 164, wherein the Gauhati High Court has held as under : 21. 1981 Rules do not purport to confer any retrospective effect on the Rules. Rules which are not retrospective in operation undoubtedly apply, though in future, to those who entered service before the framing of the Rules. They govern the future right of promotion of those already in service. 1981 Rules do not contemplate reversion of any officer already promoted under 1962 Rules They enhance the period of experience required for being considered for promotion and prescribe a departmental examination. The Government is free to prescribe such criteria for promotion or selection as it deems fit. Government is also free to prescribe such service requirements as it deems fit, having regard to the nature of the service, the nature of functions and responsibilities of the promotion post and public interest. The expression "vested right" has to be understood in the light of the decisions in K.C. Arora's case, L.R. Kapur's case and Triloki Nath Khosa's case. Petitioners do not have a complaint that having been promoted regularly according to Rules they are facing threat of reversion by virtue of the new Rules. The expression "vested right" has to be understood in the light of the decisions in K.C. Arora's case, L.R. Kapur's case and Triloki Nath Khosa's case. Petitioners do not have a complaint that having been promoted regularly according to Rules they are facing threat of reversion by virtue of the new Rules. There are a few officers, who have been promoted on condition of passing the examination. Naturally, they will face reversion if they do not pass the examination. But their promotion was not regular or in accordance with the Rules. Those, who have been regularly promoted under the 1962 Rules, have a right to continue in the promotion post and if that right is affected then only it can be said that the vested right is affected, Even such a vested right can be taken away subject of course to Articles 14 and 16 of the Constitution. 22. No vested right of any officer has been taken away or purported to be taken away under 1981 Rules. With great respect, we have to point out that the Division Bench in the earlier batch of cases did not examine correctly and "retrospective effect". When new Rules are framed or fully the amplitude of the expressions "vested right", all officers in service at that time would naturally be governed by those Rules, and if retrospective effect is not granted to the Rules, vested rights will not be affected. Of course officers in service when 1962 Rules were repealed did have a right to be considered for promotion to the next higher post in accordance with those Rules but only to the vacancies which existed at the time of the repeal. They do not have a right to contend that all future vacancies in the cadre of Inspectors of Police should be governed only by the Rules in force when they became Sub-Inspectors of Police. Their claim must necessarily be confined to those vacancies which exist when new Rules take effect. This principle of law also was not noticed in the earlier Judgment of the Division Bench. The fact that 1981 Rules do not have retrospective effect persuaded the Division Bench to hold that the intention of the Rule making authority was that Sub-Inspectors of Police who were appointed prior to 12.2.81 shall be governed by 1962 Rules for their promotion and that 1981 Rules shall govern only those. The fact that 1981 Rules do not have retrospective effect persuaded the Division Bench to hold that the intention of the Rule making authority was that Sub-Inspectors of Police who were appointed prior to 12.2.81 shall be governed by 1962 Rules for their promotion and that 1981 Rules shall govern only those. Sub-Inspectors of Police so appointed after the 1981 Rules were notified. With great respect, this conclusion is also not sustainable. The intention manifested is that Sub-Inspectors of Police, who were in position at the time of the repeal would be governed by repealed Rules for promotion to the vacancies in the cadre of Inspectors of Police existing as on that date. In the circumstances, we are of the opinion that the reasoning and conclusion of the Division Bench in the previous batch of Writ petitions is not in accordance with the law and on the oilier hand it is contrary to law. The interpretation placed by the Division Bench on the Service Rules cannot stand 23. Our conclusions in his behalf can be summarized as follows: 1962 Rules have been repealed by 1981 Rules. 1981 Rules do not have retrospective effect Therefore, 1962 Rules would govern promotion of Sub-Inspectors of Police, in position on the date of the repeal only to the vacancies existing in the cadre of Inspectors of Police on the date of the repeal and not to vacancies arising in future or post created in future, If on the date of repeal of 1962 Rules there were any vacancies in the cadre of Inspectors of Police and which were not filled up subsequently by virtue of court Judgment, such of the Petitioners, who were Sub-Inspectors of Police before the repeal would be entitled to be considered for promotion to those vacancies on the basis of 1962 Rules. The vacancies which arose and posts which were created subsequent to the promulgation of 1981 Rules can be filled up only in accordance, with 1981 Rules. The law laid down in the Judgment in Civil Rule 168/82 and analogous cases is not good law. [Emphasis supplied] 16. From a bare reading of the notification dated 18.01.2011 it would be apparent that the amended rules has been given a prospective effect, not retrospective effect. The law laid down in the Judgment in Civil Rule 168/82 and analogous cases is not good law. [Emphasis supplied] 16. From a bare reading of the notification dated 18.01.2011 it would be apparent that the amended rules has been given a prospective effect, not retrospective effect. As such, there is not necessity of interpreting the effect of the amended rules as it does not contain any repealing effect, rather by giving a prospective effect it has saved the old rules till the amended rules has come into effect. As such, those 9(nine) vacancies of Subedar (Signal Platoon) ought to have been filled up in terms of the un-amended Rule 48(1) of the Tripura State Rifles (Recruitment) Rules, 1984, which has been referred in the notification dated 18.01.2011 as the principal rules. 17. It is true that there is no combined seniority list available before this court of the Naib Subedars of both the wings as stated. For purpose of making promotion under the un-amended rules, it is essential to prepare a combined seniority list of the Naib Subedars working under the two different wings as stated. At the time of bifurcation of the Naib Subedar (Signal), if no policy had been decided as to how to maintain the seniority and how to prepare the combined seniority list, the basis for fixing the seniority must be the date of entry in the service as the Naib Subedar (Signal) as there cannot be any other bounden rule in fixing the seniority of the Naib Subedars working under the different wings. As this court is of the considered opinion that 9(nine) clear vacancies existed prior to amendment of the principal rules, the persons holding the feeder post, in terms of the un-amended Rule 48(1) of the Tripura State Rifles (Recruitment) Rules, 1984 had vested right to be considered for promotion to the post of Subedar (Signal Platoon), inasmuch as by virtue of the seniority they might be within the zone of consideration. 18. It appears that all the petitioners are senior to the respondents No. 4, 5, 6 and 7, however, this court would not undertake this exercise. 18. It appears that all the petitioners are senior to the respondents No. 4, 5, 6 and 7, however, this court would not undertake this exercise. The respondents No. 1, 2 and 3 shall take such exercise to finalize the combined seniority list of the Naib Subedars of both the wings and thereafter the Departmental Promotion Committee (DPC) shall be convened to consider the promotion of the Naib Subedars of both the wings in terms of the conditions as laid down in Rule 48(1)(a) and Rule 48(1)(b) of the Tripura State Rifles (Recruitment) Rules, 1984. Such exercise shall be completed within 6(six) months from today. After such exercise is complete, if had it emerged that anyone or all or some of the respondents No. 4, 5, 6 and 7 cannot be accommodated against the vacancies, it is left with the respondents to adjust them by creating supernumerary post/s to avoid any disadvantage to the respondents No. 4, 5, 6 and 7. It is not a direction, but this avenue has been left open. Whether such avenue to be travelled through or not, has to be decided by the respondents No. 1 to 3 only. Else the respondents, who will not be found suitable for promotion to the post of Subedar (Signal Platoon) shall be reverted. It is further clarified that the exercise may be confined for the UR category candidates, but subject to that, the persons who would be promoted by the said exercise would occupy the seniority position to all of them in the inter se seniority list. Whether the benefit would be given retrospectively or not shall also be decided by the DPC. For not occupying the promotional post this court cannot direct someone to be allowed the pecuniary benefit. But, in the event, any of the private respondents i.e. the respondents No. 4, 5, 6 and 7 are reverted, no amount should be recovered from them. Accordingly, the impugned order dated 13.08.2012 (Annexure-P/6 to the writ petition) so far it relates to the promotion of the respondents No. 4, 5, 6 and 7 to the post of Subedar (Signal Platoon) is concerned, is set aside. 19. Having observed thus, this writ petition is allowed to the extent as indicated above, leaving the parties to bear their own costs.