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Tripura High Court · body

2019 DIGILAW 60 (TRI)

State of Tripura v. Niranjan Das

2019-11-27

AKIL ABDUL HAMID KURESHI, S.TALAPATRA

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ORDER : 1. Heard learned counsel for the parties for final disposal of this appeal. 2. This appeal is filed by the state government and its authorities challenging the decision of the learned single Judge dated 20.09.2018 in W.P. (C) No. 308 of 2014. 3. Brief facts are as under: The respondent original petitioner was working in the Department of Food, Civil Supplies and Consumer Affairs, Government of Tripura. He had approached this court by filing Writ Petition No. 87 of 2005 contending that he was wrongly denied promotion to the post of Deputy Director (Food). The petitioner had pointed out to the court that being a single post cadre the same could not have been reserved for ST candidates. The decision of the government to promote the ST candidate was, therefore, incorrect. This petition was allowed by judgment dated 19th June, 2013 with following directions: “11. In view of this, the impugned notification dated 05.06.2004 (Annexure-R/7) is declared illegal and accordingly the same is quashed. The respondent Nos. 1, 2 and 3 are directed to convene a fresh DPC for consideration of the persons in the zone of consideration for filling up the post of Deputy Director(Food) without reservation and on due consideration, the appointment on promotion be made. The respondent No. 4 shall be reverted to the feeder post forthwith. It is made clear that if the State respondents are inclined to save the promotion of the respondent No. 4, the petitioner shall first be appointed as the Deputy Director (Food) as the senior most feeder cadre of Asstt. Director and thereafter the appointment of the respondent No. 4 may be accommodated by creating a supernumerary post of Deputy Director (Food). In the seniority list of the Deputy Director, the petitioner's name shall be placed above the respondent No. 4 if his promotion is saved in terms of the observation as provided herein. The said observation is no mandate from this Court, but a mere indication considering that the respondent No. 4 was appointed on 05.06.2004.” 4. Pursuant to such directions the government drew a review DPC and promoted the petitioner to the post of Deputy Director (Food) by order dated 2nd June, 2014 but with effect from 7th June, 2004. The petitioner, thereafter, filed the present fresh petition. Petitioner in the meantime, had retired on superannuation with effect from 31.01.2010. Pursuant to such directions the government drew a review DPC and promoted the petitioner to the post of Deputy Director (Food) by order dated 2nd June, 2014 but with effect from 7th June, 2004. The petitioner, thereafter, filed the present fresh petition. Petitioner in the meantime, had retired on superannuation with effect from 31.01.2010. In this fresh petition, the petitioner contended that as per the recruitment rules promotion to the next post of Jt. Director would be from the candidates having minimum three years of regular service as Deputy Director. The petitioner held such experience notionally. The government therefore must consider him for next promotion to the post of Jt. Director from the due date. The petitioner pointed out that the post was filled by transfer on deputation. The learned single Judge by the impugned judgment dated 20th September, 2018 while allowing this petition, made the following observations: “(12) In the considered opinion of this court, under the scheme of Rules the post of Joint Director is to be filled by promotion failing which by transfer on deputation and the post of Deputy Director/Special Officers (Acctts.) with three years of regular service in the grade is the qualifying service for the officers to become eligible for promotion and if the officer with three years of regular service in the feeder cadre i.e. Deputy Director/Special Officers (Acctts.) is not available or is not found suitable the respondents could have invoked a further recourse in filling the post by transfer on deputation but in the instant case the suitability of the officer who was serving as a Deputy Director(Food) as on June, 2004 for all practical purposes pursuant to order dated 02.06.2014 has never been adjudged by the respondents and the officer is not supposed to suffer for their inaction. In the given circumstances, the subsequent recourse in adopting to fill the post of Joint Director by transfer on deputation was not available unless the serving officers in the cadre of Deputy Director/Special Officers (Acctts.) with three years of regular service in the grade could have been first considered as a right of precedence for promotion in the cadre and if either not eligible or not found suitable the other recourse could be adopted. (13) Indisputably, the candidature of the petitioner on completion of three years of regular service as a Deputy Director on account of his promotion w.e.f. 7th June, 2004 has never been considered, in the absence of his suitability being adjudged, the reason assigned by the respondents of filling the post by transfer on deputation cannot be countenance by this court. As already observed, in the absence of availability of the eligible officers in the feeder cadre i.e. Deputy Director/Special Officer(Acctts.) or held unsuitable alone will give an option to the State Government in resorting to the subsequent recourse of filling the post by transfer on deputation. In a given facts and circumstances the defence of the respondents is not sustainable and needs to be interfered by this court. (14) This court would further like to add that it was expected from the respondents to consider the further claim of the petitioner for Joint Director after he was held suitable for promotion on the post of Deputy Director w.e.f. 7.6.2004 as it reveals from the order passed by the respondents dated 2nd June, 2014 and once he was found to be suitable his consequential right of fair consideration for promotion to the post of Joint Director on attaining qualifying service of three years w.e.f. 7th June, 2004 in the feeder post of Deputy Director(Food) automatically become accrued to him. It is true that the employee/Officers has no right of promotion but at least have a right of fair consideration which is always to be upheld by the respondents failing which it may laid down a precedent to avoid the regular mode of recruitment and to fill the post by transfer on deputation. In my considered view the petitioner has made out a case of his right of fair consideration for promotion to the post of Joint Director on completion of three years of regular service w.e.f. 7th June, 2004 in the feeder post of Deputy Director (Food). (15) Accordingly, the petition succeeds and is hereby allowed. The respondents are directed to hold a Departmental Promotion Committee and consider the candidature of the petitioner and of other eligible officers for promotion to the post of Joint Director and if he is found suitable may be promoted to the post of Joint Director (food) with all other consequential benefits admissible to him under the law. The respondents are directed to hold a Departmental Promotion Committee and consider the candidature of the petitioner and of other eligible officers for promotion to the post of Joint Director and if he is found suitable may be promoted to the post of Joint Director (food) with all other consequential benefits admissible to him under the law. Necessary orders in compliance of the judgment may be passed by the respondents within three months. No costs.” 5. Appearing for the government learned Advocate General submitted that the learned single judge has committed serious error in directing consideration of the petitioner for promotion to the post of Joint Director. Mere completion of three years of service on the post of Deputy Director would not automatically qualify the candidate for promotion. He pointed out that the petitioner was not superseded by his junior. In other words, no person junior to the petitioner was promoted to the post of Joint Director during the said period. The post was filled by transfer through deputation. The petitioner therefore had no indefeasible right to be considered for promotion. 6. On the other hand, learned counsel for the original petitioner opposed the appeal contending that the learned single Judge has given cogent reasons for issuing the final directions. By virtue of the promotion order dated 2nd June, 2014, the petitioner was notionally promoted to the post of Deputy Director with effect from 7th June, 2004. As per the recruitment rules, he was qualified for being considered for promotion to the post of Joint Director upon completion of the period of three years thereafter. The learned single judge has merely directed to consider the petitioner and not to grant promotion. He could be promoted only if found fit and suitable for promotion which exercise would be undertaken by the Review DPC. 7. Having thus heard learned counsel for the parties and having perused the documents on record it does emerge that the petitioner having been notionally promoted to the post of Deputy Director with effect from 7th June, 2004, he completed the requisite period of service as Director for being considered for promotion to the post of Joint Director on 7th June, 2007. However the right of a government servant to be considered for promotion is hedged by several other factors. However the right of a government servant to be considered for promotion is hedged by several other factors. Mere completion of requisite period of service in the feeder cadre would not automatically require consideration of a government servant for promotion. The government servant has a right to be considered for promotion in his turn. This expression, “in his turn” would include being considered for promotion when the government undertakes the exercise for filling up the post by way of promotion and the contemporaries and the immediate junior of the government servant is being considered for promotion at such time or if the promotion is merit based, the petitioner falls within the zone of consideration and others falling in such zone are being considered for promotion. Mere completion of regular service in the feeder cadre would not automatically give an indefeasible right for being considered for promotion. 8. In this context, we may refer to the relevant recruitment rules. Post of Joint Director could be filled either by promotion from the Deputy Director/Special Officer (Acctts.) with at least three years regular service in the grade or transfer on deputation from T.C.S. Officers. Thus, this rule does not specify that the post of Joint Director will be filled up by a preference through promotion and only failing which by transfer on deputation. This is where, in our opinion the learned single judge committed an error. This rule was read as providing that the post to be filled up through promotion, failing which by transfer on deputation. The rule, nowhere specifies this. 9. When we find that that the post in question during the period when the petitioner qualified for promotion till he superannuated, was not filled by promotion much less by any of his juniors but by way of transfer on deputation, question of considering him for promotion on notional basis would not arise. 10. In the result the impugned judgment dated 20th September, 2018 is set aside. The appeal is allowed and disposed of.