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2017 DIGILAW 332 (TRI)

Niru Mohan Jamatia (CMO, Gomati) v. State of Tripura

2017-08-17

S.TALAPATRA

body2017
Judgment and Order : Heard Mr. A. Bhowmik, learned counsel appearing for the petitioners as well as Mr. S. Chakraborty, learned Addl. G.A. appearing for the respondents. 2. By means of this writ petition, the petitioner has challenged the notification No.F.3(168)-HFW/2012 dated 30.04.2014 [Annexure-P/1 to the writ petition] whereby the medical officers whose names are under Column-II of the said notification were promoted to the Grade-II of Tripura Health Service from Grade-III of Tripura Health Service prospectively in the Pay Band-4 [Rs.13,575-37,000/-] with Grade Pay of Rs.5,600/- and other allowances including the NPA as admissible. 3. The petitioners have further questioned the relaxation as granted by the state government by reducing the qualifying service from 7 years to 5 years in the general posts [non-PG] in Grade-III and 5 years to 3 years in the specialist posts [PG Degree Diploma Holders]. 4. In exercise of the powers as provided under Rule 29 of the Tripura Health Service Rules, 1974 [as amended] the requirement of Rule 5(b)(1) of Tripura Health Service Rules, 1974 for promotion to the post of Grade-II of Tripura Health Service has been relaxed as stated before subject to completion of 25 years of service under the Health and Family Welfare Department. Such relaxation has been admittedly granted by the memorandum No. F.3(168)-HFW/2012 dated 30.04.2014. 5. The facts are mostly admitted. But the controversy hinges on interpretation and fair exercise of the power of relaxation. The petitioners were promoted to Grade-III of Tripura Health Service by the notification dated 03.11.2010 [Annexure-P/2 to the writ petition]. The names of the petitioners are available at serial No. 189 [the petitioner No.1], 161 [the petitioner No.2], 169 [the petitioner No.3], 208 [the petitioner No.4], 186 [the petitioner No.5], 181 [the petitioner No.6], 212 [the petitioner No.7], 179 [the petitioner No.8], 163 [the petitioner No.9]. The petitioners No.10 & 11 are admittedly working as the Grade-IV of Tripura Health Service and as such they cannot be even considered for promotion to the Grade-II. These petitioners do not have any locus to challenge the notification dated 30.04.2014 or to claim any relief. Hence, their claim stands rejected at the threshold. 6. It has been argued by Mr. These petitioners do not have any locus to challenge the notification dated 30.04.2014 or to claim any relief. Hence, their claim stands rejected at the threshold. 6. It has been argued by Mr. A. Bhowmik, learned counsel appearing for the petitioners that if the restriction of 25 years was not set up, the relaxation as granted by the memorandum dated 30.04.2014, the petitioners would have made it to the Grade-II of the Tripura Health Service by way of promotion. In the alternative, Mr. A. Bhowmik, learned counsel has submitted that the way the relaxation has been made by the respondents is completely in contrast to the provisions of the service rules as published by the notification dated 13.05.1974 [Annexure-P/4 to the writ petition]. In Rule-29 of Tripura Health Service Rules, 1974 the power of relaxation has been given to the government if the government is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recorded in writing, and, in consultation with the Commission relax any of the provisions of these rules with respect to any class or category of persons or posts provided that the power shall not be exercised so as to relax essential qualifications prescribed for appointment by any of the methods specified in the rules [including promotion] or provisions regarding pension and age of recruitment. Mr. A. Bhowmik, learned counsel having referred the proviso to Rule 29 of the said rules has submitted that the reduction in the qualifying service intervenes with the restriction imposed by the said proviso. 7. Having appreciated the challenge on the basis of the tools as provided by the petitioners, this court finds the fact that the petitioners are not borne in the specialized service. Therefore, on application of relaxation they cannot be promoted on completion of 3(three) years of the qualifying service. Since, the petitioners are borne in the general service in Grade-III, even after applying the relaxation, they do not have the minimum 5 years of service in Grade-III of the Tripura Health Service. None of the petitioners admittedly had the requisite qualifying service when the relaxation was made by the government and accordingly, the selection committee had occasion to observe that no candidate were found having three years of service in the specialist posts. 8. None of the petitioners admittedly had the requisite qualifying service when the relaxation was made by the government and accordingly, the selection committee had occasion to observe that no candidate were found having three years of service in the specialist posts. 8. After due consideration, the selection committee found 54 medical officers suitable after granting the relaxation from the specialized posts/grade. From the notification dated 30.04.2014 it appears that the promotion to the Grade-II has only been made from the specialist posts/grade. Since the petitioners do not have the requisite qualifying service they could have been considered with the medical officers who had been promoted to Grade-II of Tripura Health Service by the said notification dated 30.04.2014. So far the other objection as raised by the petitioner is concerned, this court finds that the way the relaxation has been granted it does not offend the proviso below the Rule 29 of the Tripura Health Service Rules, 1974 inasmuch as a distinct class has been curved out from the medical officers and for this the petitioner cannot feel legitimately aggrieved. Even the fact is considered for having the classification as made for relaxation survive the test of intelligible differentia and hence, the relaxation as made by the government cannot be held to be arbitrary or in contravention of Rule 29 of the Tripura Health Service Rules, 1974. 9. Mr. S. Chakraborty, learned Addl. G.A. has submitted that in view of the interim order passed in a case relating to the application of the reservation rules by the apex court the state has kept the promotion process on hold. 10. Before parting, the respondents are directed to consider the promotion from the general posts of Grade-III of the Tripura Health Service for promotion to the Grade-II with expedition having regard to the referred interim order. Subject to what has been observed above, the writ petition stands dismissed. There shall be no order as to costs.