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2021 DIGILAW 160 (TRI)

Kishore Kumar Basak v. State of Tripura

2021-09-13

AKIL KURESHI, S.G.CHATTOPADHYAY

body2021
JUDGMENT Akil Kureshi; CJ.:-- This appeal is filed by original petitioner to challenge the judgment of the learned Single Judge dated 18.04.2017 passed in W.P (c) No.254 of 2009. [2] Brief facts are as under: The petitioner was appointed as a Rifleman (GD) in Tripura State Rifles on 16.04.1985. He was promoted to the post of Havildar (GD) on 04.01.2000. Upon completion of five years of service on 03.01.2005 he became eligible for promotion to the post of Naib-Subedar (GD). The Department prepared what is called Approved List-D which as per the Tripura State Rifles (Discipline, Control, Service Conditions, etc.) Rules, 1986 (hereinafter to be referred to as the Rules of 1986), is prepared for the purpose of promotion of Havildars as Naib-Subedars, on 15.12.2004. The name of petitioner was shown at Sl. No.26 in the said list. However, the petitioner was not promoted. The petitioner made representations to the department including those dated 17.02.2009 and 19.03.2009 seeking promotion. On 24.04.2009, the Department rejected the representations on the ground that the petitioner was found suitable for promotion by the DPC which was convened on 11th to 13th April, 2005 but due to non availability of the vacancy for the unreserved category candidates, the petitioner could not be promoted. It was also conveyed that the validity of the said panel /Approved List ceased to exist on 30th April, 2006 as per sub-rule (2) of Rule 4 of said Rules of 1986 and the petitioner had also crossed the age of 40 years which is disqualification for promotion as per the rules. [3] The petitioner thereupon filed the said petition. The Government appeared and filed reply in which the stand taken is that the DPC considered the cases of 39 eligible Havildars who were included in Approved List-D. However, 31 persons including the petitioner could not be promoted due to non availability of vacancies. A fresh DPC was constituted and convened on 22.12.2005 for preparation of a new list, since the list prepared by the previous DPC which had met on 25.08.2004 and 30.04.2006 had ceased to exist upon completion of period of one year from the first month following the month in which the Approved List-D was finalized. The DPC was again held on 7.4.2006 but did not consider the case of the petitioner since he had already crossed the age of 40 years. The DPC was again held on 7.4.2006 but did not consider the case of the petitioner since he had already crossed the age of 40 years. [4] The learned Single Judge dismissed the writ petition by the impugned judgment upon which this appeal is filed. Having heard learned counsel for the parties and having perused the rule postiton, we find that Rule 3 of the Rules of 1986 pertains to general principles for promotion. As per sub-rule (1) all promotions to different ranks shall be on the basis of merit with due regard to seniority. Sub-rule (2) of Rule 3 provides that seniority will have weightage of 50 marks and the merit would have weightage of 50 marks which would be further bifurcated as provided in the said sub-rule. [5] Rule 4 pertains to Approved List. Sub-rule (1) of Rule 4 provides that approved list of candidates qualified and recommended for promotion to different general duty ranks shall be prepared and reviewed annually. Sub-rule (2) of Rule 4 further provides that the list shall remain valid for a period of 12 months from the first of the month following the month in which the same is finalized. [6] Rule 5 pertains to conditions for eligibility for Approved List. Approved list-D is for promotion of Havildars as Naib-Subedars and for being included in the said list following requirements are prescribed: “(a) Must have at least five years satisfactory service as Havildar. (b) Must have passed first class certificate of education. (c) Should not be above the age of forty years as on 1st day of July of the year in which the list is finalized.” [7] As per Clause (c) thus a candidate should not be above the age of 40 years as on the first day of July of the year in which the list is finalized. [8] Rule 7 pertains to procedure for preparation of list-D. As per this Rule, broadly stated, the Deputy Inspector General would invite recommendations from the Commandants for preparation and review of D list of the Havildars to be considered for inclusion in such a list. The Commandant in consultation of the Company Commanders would make recommendation to the Deputy Inspector General of the candidates concerned. The Commandant in consultation of the Company Commanders would make recommendation to the Deputy Inspector General of the candidates concerned. The Deputy Inspector General thereupon with reference to the service records, seniority and annual confidential records of the individuals upon being satisfied the individual is fit for promotion, would include such person in the D list. The individuals so selected would be tested for their proficiency in drills, weapons, field crafts etc. As per sub-rule (5) the syllabus and qualifying marks for these tests shall be laid down by the Inspector General. Only those Havildars, who qualify in the above tests shall be included in the list –D. [9] These Rules thus lay down a detailed procedure for a person to be included in list–D. This includes satisfying the eligibility criteria and consideration of suitability for promotion based on merit and seniority. The persons so found suitable have to undergo tests which the department refers to as a training, reference to which is found in sub-rules (4) and (5) of the Rule 7. Only those who qualify such tests would be included in list - D. [10] Though the said Rules do not refer to any further scanning of the candidates already included in list-D, going by the reply of the department, this exercise is understood as one for pre-selection exercise. Only after list-D is prepared, the DPC would meet and make recommendations of suitable candidates for promotion. Since this duel practice is not in challenge before us we restrain ourselves from commenting on the same. [11] For the limited purpose of this appeal, we gather that as per Rule 4 different lists including list-D prepared by the Department would have a validity of one year. For a person to be included in the list, one of the requirements is that he should not have crossed the age limit of 40 as on the first day of July of the year in which the list is finalized. In the present case, even going by the petitioner’s averments, the list was finalized on December, 2004. It is nobody's case that as on 1st July, 2004 he was above the age of 40 years. His case was therefore, correctly considered and he was included in list-D so prepared. This list-D however, had limited validity. It could not have been utilized for grant of any promotion beyond the period of one year. It is nobody's case that as on 1st July, 2004 he was above the age of 40 years. His case was therefore, correctly considered and he was included in list-D so prepared. This list-D however, had limited validity. It could not have been utilized for grant of any promotion beyond the period of one year. The DPC which met immediately after the list was prepared, included the petitioner in the select panel finding him fit for promotion. However, the petitioner could not be promoted on account of non-availability of vacancies. It is not the case of the petitioner that anyone junior to him from unreserved category was promoted from the said list. That being the position, the Department had to prepare a fresh D-list upon completion of one year of expiry from the preparation of the previous list. Even if for some reason, the Department did not undertake this fresh exercise, it would have two repercussions. First would be those candidates who by then have become eligible upon rendering five years of service in the feeder cadre could raise a grievance but not the petitioner. The second repercussion which would be directly concerning the petitioner is that even if the DPC were to consider candidates included in the existing list for preparing a fresh panel for promotion, the petitioner could not have been considered because by then he had crossed the age of 40 years. In other words, the fresh DPC had to have regard to the fact that if the list – D was prepared afresh as mandated by Rule 4(1) and (2), the petitioner would not find place in such a list since as on 1st July, 2005 he had crossed the age of 40 years, his date of birth being 18th October, 1964. [12] Under the circumstances, we do not find that non-promotion of the petitioner was erroneous. It may be that the department has committed certain wrongs, such as not drawing the fresh list-D after one year of the preparation of the previous one, which however, so far as the petitioner is concerned, the same has not resulted into any illegality or injustice. [13] In the result, appeal is dismissed. Pending application(s), if any, also stands disposed of.