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2021 DIGILAW 154 (TRI)

Ranjan Chakraborty v. State of Tripura

2021-09-09

AKIL KURESHI

body2021
JUDGMENT Petitioner has prayed for a direction for granting him promotion with retrospective effect on the basis of the panel prepared by the respondents on 13.11.2009. 2. Brief facts are as under: The petitioner was appointed in the police service as a constable on 11.02.1977. He was promoted to the post of Naik on 05.04.1985 and thereafter to the post of Head Constable (Havilder) on 10.11.1987. 3. A DPC for drawing a panel of suitable candidates for further promotion to the post of Sub-Inspector was convened in the year 2009. The DPC prepared a panel of eligible suitable candidates for such promotion on 13.11.2009. The name of the petitioner was placed at Sl. No.35 in the list as an unreserved candidate. Though the department operated the panel partially, the petitioner was not promoted till his retirement on superannuation on 30.06.2016. The petitioner has, therefore, filed the present petition. 4. Learned counsel for the petitioner Mr. Samarjit Bhattacharjee agreed that till his retirement, none of the persons junior (mentioned in the said select panel ahead of the petitioner) to the petitioner were promoted to the post of Sub-Inspector. He, however, submitted that several persons placed below the petitioner in the said panel were promoted subsequently. Referring to the reply filed by the Government, counsel submitted that non-promotion of the petitioner was only on account of the decision of this Court in case of Jayanta Chakraborty and others v. State of Tripura and others reported in (2015) 1 TLR 846 which was carried in appeal before the Supreme Court. Counsel vehemently contended that this deprived the petitioner of a valuable right of promotion. Since the petitioner was found suitable for promotion and, therefore, placed in the panel, the petitioner had every right to claim such promotion in his turn. He could not be promoted merely because till his retirement the issues arising out of the decision of this Court in case of Jayanta Chakraborty (supra) were not clear. 5. Basing reliance on the decision of Supreme Court in case of Major General H.M. Singh, VSM v. Union of India and another reported in (2014) 3 SCC 670 counsel submitted that the petitioner must be granted retrospective promotion with all consequential benefits. 5. Basing reliance on the decision of Supreme Court in case of Major General H.M. Singh, VSM v. Union of India and another reported in (2014) 3 SCC 670 counsel submitted that the petitioner must be granted retrospective promotion with all consequential benefits. He drew my attention to the decision of Supreme Court in case of Union of India and others v. N.C. Murali and others reported in (2017) 13 SCC 575 to contend that unless the service rules prohibit, retrospective promotion can always be granted. 6. On the other hand, the case of the department is that no person whose name appeared below that of the petitioner in the select panel was promoted prior to the retirement of the petitioner. When the petitioner was in active service, he could not be granted promotion on account of the issues arising out of a decision in case of Jayanta Chakraborty (supra). The department had taken a conscious decision to put all such promotions in all departments on hold till clarity is achieved in the appeal filed before the Supreme Court. 7. The record would show that the department had operated the select panel by granting promotion up to the candidate placed at Sl. No.27. This was done on 31.03.2015. For some time to come, this was a last promotion granted by the department from the said panel. Shortly thereafter a Full Bench of this High Court delivered its judgment in Jayanta Chakraborty (supra) on 09.04.2015 and struck down certain rules framed by the State of Tripura in relation to reservation in favour of Scheduled Castes and Scheduled Tribes. Some of the decisions of the Government were found to be opposed to the decision of the Supreme Court in case of Indra Sawhney and others v. Union of India and others reported in (1992) Supp 3 SCC 217. This decision was not accepted by the Government and appeal was filed before the Supreme Court. In the meantime, on account of various complicated issues arising out of this judicial intervention, the Government decided not to grant any further promotions to anybody. Till the petitioner retired w.e.f. 30.06.2016, this impasse continued and no person from the said panel received promotion. It was some time thereafter that the Government started releasing promotions. 8. In view of such facts, the petitioner cannot claim promotion. Till the petitioner retired w.e.f. 30.06.2016, this impasse continued and no person from the said panel received promotion. It was some time thereafter that the Government started releasing promotions. 8. In view of such facts, the petitioner cannot claim promotion. Had any person below that of the petitioner from the panel granted such promotion when the petitioner was still in service, the petitioner had every right to raise an objection. In other words, if any person junior to the petitioner was promoted, the case of the petitioner had to be considered first. However, simply because the name of the petitioner appeared in the select panel, would not mean that he had a vested right of promotion. He had a right to be considered for promotion in his turn. Equally, merely because there were vacancies in the promotional post, did not mean that the department had to operate the select panel and grant promotions. Unless the decision not to grant promotions from the select panel is arbitrary or mala fide, it is always open for the administration to decide not to make further promotions for valid administrative reasons. In the present case, the reason was perfectly justified. The government was considering its options in relation to the issues arising out of the judgment given by the Full Bench in case of Jayanta Chakraborty (supra). Till such clarity is achieved if the government consciously decided not to grant any further promotions and on account of which the petitioner missed out his chance of promotion which situation prevailed till his retirement, the petitioner cannot seek retrospective promotion after retirement. It appears that the petitioner was not the only person to miss out the promotion. Several persons between Sl. Nos.27 to 34 also retired without promotion. 9. The decision in case of Major General H.M. Singh (supra) was rendered in very different fact situation. It was a case in which the appellant before the Supreme Court was a senior level Army Officer holding the post of Major General had sought promotion to the next higher post of Lieutenant General. His service was extended so that he can get this benefit. However, the process for granting promotion was initiated only two days before the date of his retirement. His service was extended so that he can get this benefit. However, the process for granting promotion was initiated only two days before the date of his retirement. In such background, Supreme Court observed that the appellant was not responsible for delaying the process and it would be unfortunate if a promotional claim of the senior most eligible officer of the Army is denied on such grounds. It was observed that this was specially so when blame for delaying such consideration rests squarely on the shoulders of the authorities. In the present case, the respondents cannot be blamed for any delay in consideration of promotions. The complications arose on account of a decision of this Court and the Government desired to weigh its options before granting further promotions. 10. The decision in case of N.C. Murali (supra) is applicable to the present case only to the extent it holds that in absence of any prohibition in the service rules retrospective promotion can always be granted to which proposition I have no opposition. However, the question is under what circumstances such retrospective promotion should be ordered. 11. In the present case, the petitioner has not made out any case for grant of retrospective promotion. Petition is, therefore, dismissed. 12. Pending application(s), if any, also stands disposed of.