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2021 DIGILAW 127 (TRI)

State of Tripura v. Pradip Kumar Debbarma

2021-08-17

AKIL KURESHI, S.G.CHATTOPADHYAY

body2021
JUDGMENT Akil Kureshi; CJ.:-- This appeal is filed by the State Government to challenge the judgment of the learned Single Judge, dated 29th January 2021, passed in WP(C) No.437/2017. The respondent herein original petitioner had filed the said petition with a prayer that he should be promoted to the post of Sub-Divisional Controller considering his total length of service and seniority and that such promotion should be granted with retrospective effect from the year 2010. Briefly stated, the facts are that the petitioner was appointed as a Junior Store Keeper in the State service on 30th April 1990 in the Directorate of Food and Civil Supplies Department. Under a memorandum, dated 20th April 1998, a charge sheet was framed against the petitioner. The disciplinary authority held that the charges were proved. Appellate authority confirmed the decision. This resulted into imposition of penalty on the petitioner in the year 2003 by which a recovery of an amount of Rs.2,44,238/- was ordered against the petitioner. In the year 2007, persons junior to the petitioner in his cadre of Store Keeper were promoted to the post of Inspector (Food). The petitioner was not promoted. He, therefore, filed WP(C) No.276/2012 which was decided by the learned Single Judge by a judgment dated 27th January 2016. The respondents were directed to convene a review Departmental Promotion Committee (DPC) and consider the case of the petitioner as on the due date when his juniors were promoted. This exercise led to the petitioner’s promotion as Food Inspector w.e.f. 3rd January 2007. On the basis of his retrospective promotion and improved seniority position, the petitioner claimed further promotion to the post of Sub-Divisional Controller which was not granted to him by the department. The petitioner, therefore, filed the present petition with a prayer for grant of such promotion with retrospective effect from the year 2010. The department opposed the petition pointing out that no person junior to the petitioner in his category of Scheduled Tribe(ST) has been promoted to the said post. Two persons who were junior to the petitioner and who were promoted both belonged to Scheduled Caste(SC) category and were promoted on their reserved posts. Ignoring these averments of the department, the learned Single Judge allowed the writ petition making following observations : “ ……………….. Two persons who were junior to the petitioner and who were promoted both belonged to Scheduled Caste(SC) category and were promoted on their reserved posts. Ignoring these averments of the department, the learned Single Judge allowed the writ petition making following observations : “ ……………….. [9] In my opinion, this cannot be the ground to deprive a person for consideration of his right to be promoted and more particularly when his junior was promoted. Further, respondents are duty bound to enforce the order of the Court. [10] Having held so, the respondents are directed to enforce the order of this Court as reproduced in para-6 of this judgment. Consequently, the petitioner is entitled to be considered for promotion to the next higher post/posts. Needless to say, that the petitioner is entitled to get all pecuniary benefits notionally. In furtherance thereof, the petitioner would be entitled to get benefit of next promotion as per Recruitment Rules from the date when his juniors were promoted i.e. with effect from 2010. If there is no vacancy at present, the respondents shall create supernumerary post for a period which may be required to adjust new situation. It is made clear that entire exercise shall be completed within 2(two) months from the date of receipt of the copy of this order.” This judgment, the State has challenged in the present appeal. Learned counsel Mrs. Sarama Deb for the State, drew our attention to a recent judgment, dated 26th July 2021, passed in case of State of Tripura and Ors. v. Sri Monoranjan Majumder in WA No.140/2021 filed by the State Government in which under similar circumstances the judgment of the learned Single Judge was set aside. Learned senior counsel Mr. S M Chakraborty on the other hand, submitted that the facts of the present case are different from that in case of Sri Monoranjan Majumder (supra). He pointed out that in the said case, the petitioner was seeking promotion from the post of Junior Store Keeper to Food Inspector and thereafter further promotion. He, however, could not controvert the statement made by the State authorities in the reply to the writ petition stating that no person junior to the petitioner in the category of ST has been promoted to the post of Controller. He, however, could not controvert the statement made by the State authorities in the reply to the writ petition stating that no person junior to the petitioner in the category of ST has been promoted to the post of Controller. The factual situation therefore which would emerge is that the petitioner may have a legitimate right to seek consideration for promotion to the post of Sub-Divisional Controller on the basis of his improved seniority upon his retrospective promotion to the post of Food Inspector, such consideration must be in its turn. This expression “consideration for promotion in his turn” in service jurisprudence implies that a Government servant would have a right to be considered for promotion when a vacancy in the promotional cadre arises and the turn of the Government employee has ripened considering his seniority. If the department considers any person junior to the employee for such promotion ignoring the claim of the Government servant though he is otherwise qualified, it would a breach of his right. On the other hand, if there is no post available for promotion and no person junior to the Government servant has been considered for promotion, the Government servant has no vested right for being promoted or even for being considered for promotion. In case of Sri Monoranjan Majumder (supra) while reversing the decision of the learned Single Judge which was also premised on similar observations as are made in the impugned judgment and which we have reproduced above, the Division Bench had made following observations : “9. In our opinion, the learned Single Judge committed a serious error in issuing the directions noted above. As noted, the petitioner was facing departmental inquiry which resulted into imposition of the order of penalty by the disciplinary authority and confirmation of such order by the appellate authority. It is true that these orders were set aside by the learned Single Judge and the department had to restore the original position of the petitioner prior to initiation of the departmental proceedings. This would include the right of the petitioner to be considered for promotion from due date in his turn. The reference to due date and in his turn must be in the background of availability of vacancy and the petitioner’s seniority position. In other words, if any person junior to the petitioner is considered for promotion, the petitioner must be so considered from such date. The reference to due date and in his turn must be in the background of availability of vacancy and the petitioner’s seniority position. In other words, if any person junior to the petitioner is considered for promotion, the petitioner must be so considered from such date. If he is found suitable for promotion, he must be granted it. However, if no person junior to the petitioner has been considered, the petitioner would not get an automatic right of promotion. 10. It is in this respect the averment of the Government that no person junior to the petitioner was promoted in the interregnum becomes relevant. It is pointed out that Bhuttu Debbarma belonged to ST category whereas the petitioner belongs to SC category. The petitioner has not disputed this factual position. If Bhuttu Debbarma, therefore, was promoted in a reserved seat for ST candidate, surely the petitioner cannot seek consideration for promotion simply because Bhuttu Debbarma was junior to him. 11. The petitioner’s reference to a case of Dibyendu Das in the rejoinder would be of no avail. The petitioner has not averred that Dibyendu Das was his junior. He has only referred to the case of Dibyendu Das in the rejoinder in the context of said Dibyendu Das being granted two promotions with retrospective effect. Learned Government counsel submitted that Dibyendu Das was appointed as a Junior Storekeeper on 09.10.1991 whereas petitioner was appointed to the same post on 17.12.1997. It would have been desirable had the Government filed a reply to the rejoinder bringing the seniority list on record or at least so stated in the appeal memo. However, we do not discard this position since the petitioner himself has not asserted in the rejoinder that Dibyendu Das was his junior. 12. In view of this situation, no direction for promotion to the petitioner to the next higher post of Food Inspector could have been issued. The learned Single Judge, in fact, granted sweeping directions for promotion to the petitioner to the post of Sub- Divisional Controller which is three promotional posts away from the post of Junior Storekeeper. Without examination of promotion of juniors of the petitioner to the successive promotional posts and without examination of the petitioner’s suitability for such promotions in any case such directions could not have been issued. 13. In the result, impugned judgment of the learned Single Judge is set aside. Without examination of promotion of juniors of the petitioner to the successive promotional posts and without examination of the petitioner’s suitability for such promotions in any case such directions could not have been issued. 13. In the result, impugned judgment of the learned Single Judge is set aside. Petition is dismissed. Appeal is allowed and disposed of. Pending application(s), if any, also stands disposed of.” In view of this discussion, the decision of the learned Single Judge under challenge cannot be sustained. The same is reversed. Writ appeal is allowed and disposed of. Pending application(s), if any, also stands disposed of.