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2020 DIGILAW 29 (TRI)

Satyesh Ch. Deb v. State of Tripura

2020-02-10

AKIL KURESHI, ARINDAM LODH

body2020
JUDGMENT Akil Kureshi, CJ. - This litigation has a chequered history. Petitioner has been contesting his seniority position in the cadre of Senior Ranger in the Forest Department of State of Tripura. [2] Briefly stated, facts are as under : The petitioner was appointed as a Forester on 2nd August, 1966. He was promoted to the post of Forest Ranger on 12th March, 1975. In the seniority list published in the 1995, he was shown at Sl. No.11. On or around 14th May 2001, some of the juniors to the petitioner were promoted the post of Senior Ranger on the basis of reservation points in the promotional cadre. Petitioner was eventually promoted to the post of Sr. Forest Ranger on 24th January, 2004. In the meantime, the petitioner had filed writ petition [WP(C) No.269/2002] in which he had challenged the promotions of the private respondents No.3 to 5. The writ petition was disposed of by a learned Single Judge by judgment dated 16th December, 2004. The learned Judge was of the opinion that the seniority position shown in the cadre of Senior Forest Rangers showing the petitioner junior to the private respondents was incorrect. Petition was disposed of with following directions : '5. For the foregoing reasons, this writ petition is allowed. The impugned memorandum dated 20.08.2004 (Annexure-8) placing the private-respondents senior to the petitioner is hereby quashed. Resultantly, the respondents are directed to prepare a fresh inter se seniority list placing the petitioner senior to the private-respondents. Since the petitioner is reported to be retiring on superannuation on 31.12.2004, the entire exercise of preparing the new seniority list shall be completed before 31.12.2004. No costs.' [3] The judgment of the learned Single Judge was not challenged by the State. Instead, an application was moved for extension of time for complying with the directions. In such petition, order was passed on 20th January, 2005 granting time of 2(two) months from 1st January, 2005 to comply with the said order. [4] Instead of complying with the directions the Government now filed a review petition [Rev. Pet. No.4/2005] seeking recall and review of the said judgment. This review petition which remained pending for a long time was eventually decided by an order dated 9th December, 2013. [4] Instead of complying with the directions the Government now filed a review petition [Rev. Pet. No.4/2005] seeking recall and review of the said judgment. This review petition which remained pending for a long time was eventually decided by an order dated 9th December, 2013. In such review petition, the Government placed heavy reliance on Article 16(4A) of the Constitution of India and a notification dated 27th January, 2005 issued by the Government of Tripura, General Administration (Personnel & Training) Department, providing for maintenance of seniority in promotional cadre in favour of reserved category candidates. In the review petition, it was argued on behalf of the petitioner that the said notification of the Government cannot be equated with the Validating Act. This contention was rejected by the learned Judge making following observations : '[17] What further Mr. S. Deb, learned sr. counsel has raised that the said notification cannot be treated as the validating act of the previous action granting the consequential seniority to the reserved category promotees vis- -vis the general/unreserved category promotees in the promotion level. Such action was struck down by this Court in terms of Ajit Singh(II) (supra) . Whether the said notification cannot be treated as a piece of validating act requires further consideration. For appreciating such jurisprudential objection, this Court has to travel back to the amended provision of Article 16(4A) of the Constitution of India as engineered by the Constitution (Eighty Fifth Amendment) Act, 2001. By the amended provision, the State has been enabled with the power for making any provision for reservation in the matters of promotion with consequential seniority to any class or classes of post in service under the State in favour of the Scheduled Castes and Scheduled Tribes which in the opinion of the State are not adequately represented in the services for the State. This provision itself stands contrary to what had been held by Ajit Singh(II)(supra) . Therefore, the ratio of Ajit Singh(II)(supra) has been expressly debased by the said piece of validating act, which has amended Article 16(4A) with effect from 17.06.1995. This provision itself stands contrary to what had been held by Ajit Singh(II)(supra) . Therefore, the ratio of Ajit Singh(II)(supra) has been expressly debased by the said piece of validating act, which has amended Article 16(4A) with effect from 17.06.1995. From a reading of the statement of the object and reason of the Constitution (Eighty Fifth Amendment) Act, 2001 it becomes further clear that the very purpose of the said Act was to remove the effects of Ajit Singh(II)(supra) and to provide the consequential seniority in the matters of promotion to the reserved category candidates/ incumbents vis- -vis the general category candidates/incumbents on the basis of the continued officiation. Thus, there cannot be any amount of doubt that Ajit Singh(II)(supra) has been debased by the said Constitution (Eighty Fifth Amendment) Act, 2001 with effect from 17.06.1995, the day on which Article 16(4A) had been made operational in the Constitution (77th Amendment) Act. In exercise of the said enabling power the State has made the provision by an executive fiat in the form of the notification No.F.23(3)-GA(P &T)2004 dated 27.01.2005. The executive order as passed under Article 162 of the Constitution of India since has been extended to a matter where the legislature of a State has power to make laws it cannot be said the notification has no invalidating statutory effect. The provision can be made in exercise of power provided to the State under Article 162 of the Constitution of India, subject to that in any matter with respect to which the legislature of the State and Parliament have power to make laws, the executive power of the State shall be subject to and limited by the executive power expressly conferred by the Constitution or by any law by the parliament upon the union or authorities thereof. In this case the State in exercise of the enabling power has provided under Article 16(4A) of the Constitution of India the provision of the consequential seniority to the reserved category promotees in terms of their continuous officiation. Therefore, it has got all contours and trappings of the validity Act. Thus, the contention of Mr. Deb in this regard is discarded.' [5] However, the learned Judge was of the opinion that no such notification could have any effect on the case on hand. Therefore, it has got all contours and trappings of the validity Act. Thus, the contention of Mr. Deb in this regard is discarded.' [5] However, the learned Judge was of the opinion that no such notification could have any effect on the case on hand. The review petition was, therefore, dismissed by making following further observations: '[18] A ancillary question that comes to the fore that what remedy would be available to the State after such validating act. That issue should not be compounded by any complex interpretation. Excitability of the judgment has been slighted and the declaration as to the law has been entirely debased retaining any effect, from the date on which the validating action has come into effect. But by way of the review reversal of the judgment cannot be caused by the court. On cumulative assessment of the contentions as projected, this court has no hesitation to hold that this petition for the review is not maintainable as in as much as for the legislative action, even with retrospective operation but posterior to the impugned judgment the same cannot be altered or modified in exercise of the power of review by this Court. [19] Accordingly, this petition for the review stands dismissed. However, there shall be no order as to costs.' [6] Once the review petition was disposed of and yet the Government did not comply with the directions contained in the main judgment, the petitioner moved a contempt petition [Cont. Cas(C) No.28/2014]. This contempt petition came to be dismissed on the ground of limitation by an order dated 17th January, 2015 upon which the present fresh petition has been filed. [7] Learned counsel for the petitioner submitted that the decision in case of petitioner had become final and binding to the parties. The Government ought to have implemented the said decision. The notification issued by the General Administration Department was merely in the nature of a clarification and did not have effect of invalidating the judgment of this Court. [8] On the other hand, learned Government Advocate opposed the petition contending that the effect of the decision of Supreme Court in case of Ajit Singh and Others(II) v. State of Punjab and Ors. reported in (1999) 7 SCC 209 has been neutralized by virtue of insertion of Clause (4A) to Article 16 of the Constitution. [8] On the other hand, learned Government Advocate opposed the petition contending that the effect of the decision of Supreme Court in case of Ajit Singh and Others(II) v. State of Punjab and Ors. reported in (1999) 7 SCC 209 has been neutralized by virtue of insertion of Clause (4A) to Article 16 of the Constitution. In exercise of powers vested therein, the Government issued the notification which provided that notwithstanding any other judgment or order the reserved category candidates promoted on the reserved posts would retain their seniority. In support of his contentions counsel relied on following decisions principally holding that by a validly made law, a judgment of the Court can be invalidated and that such legislation can as well be framed with retrospective effect. '(i) State of Bihar and Ors. v. Bihar Pensioners Samaj reported in (2006) 5 SCC 65 ; (ii) State of Himachal Pradesh v. Narain Singh reported in (2009) 13 SCC 165 ; (iii) Eurotex Industries and Exports Ltd. v. State of Maharashtra reported in (2017) 10 JT 583 .' [9] Broad controversy between the petitioner and the Government revolves around, restoration of his seniority in the cadre of Senior Ranger upon his promotion later than the promotion of the respondents No.3 to 5 who were promoted earlier on account of reservation points in the promotional cadre. By virtue of the judgment of Supreme Court in case of Ajit Singh II (supra) such catch up of seniority formula would apply. The legislature, therefore, stepped in and inserted Clause (4A) to Article 16 enabling the State to make any provision for reservation in the matter of promotion with consequential seniority to any class or classes of posts in the services under the State in favour of Scheduled Castes(SC) and Scheduled Tribes(ST) which in the opinion of the State were not adequately represented in the services under the State. [10] In exercise of such powers, therefore, it was open for the State to make suitable law preserving the seniority of the reserved category candidates in the promotional post. However, by the time any such law was framed by the State, the petitioner had already knocked the doors of this Court and his petition was allowed providing for restoration of his seniority above that of the private-respondents in the promotional cadre. However, by the time any such law was framed by the State, the petitioner had already knocked the doors of this Court and his petition was allowed providing for restoration of his seniority above that of the private-respondents in the promotional cadre. The State initially did not think of challenging the judgment and applied for extension of time for complying with the directions. Subsequently, though a review petition was filed on this ground. The same was dismissed. This judgment thus had limited binding effect intra parties. In other words, the finality of the decision in the said petition would bind those who are parties in the said petition. Once even after pointing out the notification, review petition was dismissed, the judgment needs to be given effect. [11] Under the circumstances, the respondents No.1 and 2 shall carry out the directions contained in the judgment dated 16th December, 2004 in WP(C) No.269/2002. This shall be done within a period of 4(four) months from today. Petition is disposed of accordingly. Pending application, if any also stands disposed of.