Anima Das vs State Of Tripura And Ors

The petitioner has prayed for a direction to the respondents to grant the pay and allowances to the post of Supervisor (ICDS) for the period between 05.10.2010 to 14.11.2016. The petitioner's grievance arises in following background:

The petitioner was engaged as an Anganwadi Worker on 01.01.1983 on which post she continuously worked for years together. As per the Government policy, subject to seniority and fulfillment of minimum qualifications of Madhyamik pass, an Anganwadi worker would be eligible for consideration for promotion to the post of Supervisor (ICDS). The department had considered and promoted persons junior to the petitioner to the post of Supervisor in the year 2010, ignoring the claim of the petitioner. The petitioner, therefore, filed W.P. (C) No.32 of 2013 and prayed that she may be promoted to the post of Supervisor, granting her due seniority by giving deemed date of promotion with effect from the date her juniors were so promoted with consequential benefits.

In the said writ petition, the respondents had filed an affidavit conceding to the position that though falling within the zone consideration her case was not considered for promotion. A statement was therefore made in the said affidavit that her case would be considered in the next DPC.

On the basis of such facts and circumstances, the learned Single Judge disposed of the writ petition by a judgment dated 20.01.2016 directing the respondents to make all efforts for constituting a DPC for considering the case of the petitioner for promotion to the post of Supervisor, requiring that such exercise should be completed within 3 (three) months.

Pursuant to said, the department constituted the DPC. Acting on the recommendations of such DPC, the Government issued an order dated 03.11.2016 promoting the petitioner to the post of Supervisor (ICDS) in the scale of Pay of Rs.5700-24,000 in the Pay Band No.2 with a Grade Pay of Rs.2800/- from the date of joining of her junior Smt. Kamala Malakar i.e. 05.10.2010 in the post of Supervisor notionally. However, the financial benefits will be provided only with effect of the actual date of joining the post.

The petitioner has therefore filed present petition seeking the direction for releasing full pay and allowances to the post of Supervisor for the intervening period from 05.10.2010 till 14.11.2016.

Appearing for the petitioner, learned counsel Mr. T.D. Majumder submitted that the case of the petitioner was illegally kept out of consideration for promotion when her junior was considered and promoted. The petitioner had to move this Court for promotion. The respondents have not pointed out any reason why the petitioner was not previously considered. Thus, on account of fault on part of the department, the petitioner lost the opportunity for merely six years to perform her duties as a Supervisor. When the department corrected such an error, the same should have been done with full consequential benefits.

On the other hand, learned Government Advocate Mr. D. Bhattacharjee appeared for the respondents and opposed the petition contending that the petitioner had not discharged the duties as a Supervisor for the said period. She has been given a deemed date of promotion for notional purpose. She is not entitled to wages for the said period. In the previous judgment, this Court had not granted such benefits though prayed by the petitioner in writ petition.

Facts are not complicated or disputed. The petitioner was eligible for being considered for promotion to the post of Supervisor (ICDS). Unless there were special circumstances she ought to have been considered along with her juniors. Neither in the previous petition nor in the present petition the respondents have cited any valid reason why the case of the petitioner was not considered along with the junior. In fact, in the previous petition, it was almost conceded that the same was at error and that a DPC would be drawn soon for such consideration. On such basis the learned Single Judge had directed the respondents to draw DPC and to complete the exercise of consideration of petition for promotion within three months. In all fairness, the Government also granted the deemed date of promotion to the petitioner as the date on which her junior was promoted. While doing so, it was provided that such retrospective promotion would only be for notional purposes and the petitioner would receive pay and allowances only upon joining the post.

In such a background, the petitioner cannot be deprived totally of the pay and allowances for the promotional post. As noted, no valid reasons are forthcoming why the case of the petitioner was not considered when her juniors were promoted. Clearly, this was an error, an error which had to be corrected. The department could have corrected the error suo moto or at least when the petitioner moved the petition in the year 2013 for such purpose. Having taken a stand in the affidavit-in-reply that a DPC would be drawn for such purpose, the respondents should not have waited for the High Court to pass a final judgment.

The contention that the petitioner had made such a prayer in the previous petition which was not granted and that therefore, the same cannot be considered in the present petition, cannot be accepted. In the previous petition, the High Court accepting the stand of the department that a DPC would be drawn for the purpose of considering the petition, had given suitable directions to complete such process within three months. At that stage, the Court had not entered into the question whether the petitioner would be found fit for promotion or not and if found fit for promotion, what should be the consequential relief that the petitioner should get. The present issue which the petitioner is raising is a fall out of the developments subsequent to passing of the judgment by the High Court.

Having said that, the petitioner also cannot hope to receive full pay and allowances for the entire period. Firstly, the petitioner has not discharged duties on the post. More importantly, the petition was moved previously in the year 2013 though the grievance of the petitioner arose on 05.10.2010 when her junior was promoted. Considering such facts and circumstances, it is directed that the respondents shall pay 25% of the pay and allowances for the post of Supervisor (ICDS) for the intervening period of 05.10.2010 to 14.11.2016. This shall be done within a period of 3 (three) months from today.

Petition disposed of accordingly. Pending application, if any, also stands disposed of.