Debashish Nath vs State Of Tripura And Ors

[1] Heard Ms. R. Majumder, learned counsel appearing for the petitioner as well as Mr. D. Sharma, learned Addl. G.A. appearing for the respondents including the private- respondents.

[2] The petitioner by means of this writ petition has urged this court to set aside the final seniority list published by the Memorandum dated 10.07.2013, Annexure-8 to the writ petition, whereby the seniority position of Assistant Director, Group-B, Gazetted as on 04.06.2013 has been determined and the petitioner has been shown below the respondent No.5 namely Sri Bipul Debbarma.

[3] Even the order of promotion vide the notification dated 27.01.2010, Annexure-5 to the writ petition has been challenged. By the said notification dated 27.01.2010, the respondent No.3 namely, Sri Dilip Kr. Debbarma and the respondent No.5, Sri Bipul Kr. Debbarma were promoted to the post of the Deputy Director, the superior post of the Assistant Director.

[4] It has been further urged to direct the respondents to quash the said seniority list for placing the name of the petitioner below the respondent No.5. Finally, the petitioner has urged for a writ of certiorari in order to quash the final seniority list whereby the consequential seniority has been given effect to and to issue a writ of mandamus directing the respondents to publish a fresh seniority list preserving the seniority of the petitioner on the basis of his appointment vide the memorandum dated 19.12.1998 (Annexure-1 to the writ petition). As consequence of those reliefs, the petitioner has urged this court to further direct the respondents No.1 and 2 to give all financial benefits to the petitioner on the date when his juniors were promoted to the next higher post i.e. the Deputy Direction with higher scale of pay.

[5] The facts are almost admitted and not disputed. The petitioner was initially appointed as Information and Cultural Officer in the scale of pay of Rs.1700-3980/- under the respondents No. 1 and 2. His seniority was fixed in order of the merit as was determined by Tripura Public Service Commission and as is evident from their communication dated 23.09.1998, Annexure-2 to the writ petition. In strict observance of that order of merit, the final seniority list of Information and Cultural Officers showing the seniority position as on 31.10.2002 was published by the memorandum dated 19.12.2002, Annexure-3 to the writ petition, where the seniority position of the petitioner was shown at Serial No.14. True, it is that, all the private respondents in the said seniority list got their position below the petitioner starting from seniority position No.6.

[6] Later on, by the Notification dated 17.08.2005, Annexure-4 to the writ petition, 9 (nine) Information and Cultural Officers were promoted to the post of Senior Information Officer (Group-B, Gazetted) including the petitioner. Petitioner's name is figured at Sl. No.2 whereas all the private respondents found their place below the petitioner.

[7] Later on, by the notification dated 27.01.2010, Anenxure-5 to the writ petition, 2 (two) private respondents namely Dilip Kr. Debbarma and Bipul Kr. Debbarma, respectively the respondents no.3 and 5 along with one Kumar Singha, who is not the party-respondent were promoted to the post of Assistant Director (Group-B Gazetted). During that exercise the petitioner was not considered. The petitioner has, after all these years expressed his grievance in respect of this notification and challenged the said order of promotion as his name did not place therein.

[8] Thereafter, by another notification dated 28.07.2011, Annexure-6 to the writ petition, 4 (four) private respondents namely Sri Gautam Das (the respondent no.4), Sri Mrinal kanti Das (the respondent No.6), Smt. Tinku Biswas (the respondent no.7) and Smt. Panchali Debbarma (the respondent No.8) were promoted to the post of Assistant Director (Group-B, Gazetted). Even in this exercise also the petitioner's name was not considered. Such non-consideration has been explained separately by the respondents.

[9] Later on, by the notification dated 31.10.2012, the petitioner was promoted to the post of Assistant Director (Group- B, Gazetted) with the following condition:

"The promotion of Sri Debasish Nath, Senior Information Officer will be effected from 28.07.2011 with notional pay and his seniority position would be below Sri Bipul Kumar Debbarma, Assistant Director and above Sri Gautam Das, Assistant Director."

[10] Apparent it is that the grievance that was stoked by the notification dated 28.07.2011, Annexure-6 to the writ petition, has been substantially ameliorated by the respondents.

[11] Thereafter, on 10.07.2013 by the memorandum (Annexure-8 to the writ petition) the Final Seniority List of the Assistant Directors were published showing the petitioner at Sl. No.4 below Bipul Kumar Debbarma (the respondent No.5) and above the respondent No.4. That seniority list has also been challenged by the petitioner, as noted above. The petitioner has urged to direct the respondent No.2 to place his position above Bipul Kr. Debbarma and below Kumar Singha, the non-party-officer. The petitioner had raised his objection against the said final seniority list by filing a representation on 18.09.2013 where he has stated as under:

"I would also like to draw your attention to the fact that one can regain his original position of seniority under the "Catch-up" rule. According to that rule, I am entitled to regain my original seniority in the feeder grade, namely, in the grade of Senior Information Officer where I was senior to the above named persons. Sri Dilip Kr. Debbarma & Sri Bipul Kr. Debbarma got promotion not by ordinary mode, but by applying extra ordinary reservation, in such case, the Catch-up Rule would be applicable."

[12] The respondents have by filing the reply contended that the petitioner has admitted that the respondents No.3 and 5 were entertained against the reserved category posts fallen vacant preceding the exercise taken in the year 2010. The respondents have categorically stated that the respondents No.3 and 5 were entertained against the reserved category post where the petitioner could not be entertained as he belongs to unreserved category. Even the petitioner in his representation has admitted that position. The petitioner's grievance as projected in the said representation is that the "Catch-Up Rule" should be applied and the effect of the consequential seniority be taken away by the restoring the seniority of the feeder post which will be considered relevant.

[13] Ms. Majumder, learned counsel appearing for the petitioner has strenuously submitted that the consequential seniority cannot be given, particularly in view of the decision of this court whereby the Rule 9(2) has been struck down. The writ petitioner has asserted in Paragraph-22 that the High Court of Tripura has declared both the proviso of Sub-rule 2 of Rule 9 of Tripura Scheduled Castes and Scheduled Tribe Reservation Rules, 1992 as ultra-vires to the Constitution of India as well as to the Tripura Scheduled Castes and Scheduled Tribes Reservation Act, 1991. It has been contended by the writ petitioner that in a catena of decisions, the apex court has laid down the law holding that to take the benefit and advantage of Article 16(4) and 16(4A) of the Constitution of India, the State-respondents have to satisfy the requirement of the quantifiable data for re-assessing or assessing the backwardness and inadequacy of representation in the public employment. The aspect of representation has to be balanced with administrative efficiency as enshrined under Article 335 of the Constitution of India.

[14] The petitioner has admitted that by the Constitution (85th Amendment) Act the question of consequential seniority has been addressed and the decision of the apex court in respect of catch-up Rule in Ajit Singh and Others (II) vs. State of Punjab and Others reported in (1999) 7 SCC 209 has been debased. The State Governments have been enabled to grant the consequential seniority by making provision thereof.

[15] In the face of such constitutional amendment, M. Nagaraj and Others Vs. Union of India and Others reported in (2006) 8 SCC 212, the apex court introduced the doctrine of enumeration of backwardness and inadequacy of representation by quantifiable data to re-assure that the reservation is still required and is required to be continued.

[16] In this regard, indisputably the State of Tripura has issued an executive order that consequential benefit would be available to the reserved category officers who would get the accelerated promotion. This aspect of the matter is not in dispute. The apex court in Bir Singh vs. Delhi Jal Board and Others reported in (2018) 10 SCC 312 has clearly laid down the law that the power under Article 16(4) of the Constitution of India is not only capable of being exercised by the legislative provision/enactment but also can be exercised by the executive order issued under Article 166 of the Constitution of India.

[17] True it is that, this court has struck down the provisos to sub-rule 2 of Rule 9 of the Tripura Scheduled Caste and Scheduled Tribes Reservation Rules, 1992 and the respondents have placed, before this court, the records to show that the said decision has been challenged in the apex court and the apex court has asked to maintain the status quo and allowed the state to continue to reassure the necessity of continuation of reservation by collecting the quantifiable data. These are not under challenge in this writ petition. On the survey of the pleadings and the replies filed by the respondents, it appears pertinent to this court is that (1) why the petitioner was left out when the respondents No.3 and 5 were promoted by the notification dated 27.01.2010, Annexure-5 to the writ petition to the post of Assistant Director (Group-B, Gazetted) and (2) why the petitioner again was left out when the respondent No.3 and other private respondents below the respondents No.4 and the other private respondents below the respondent No.5 were promoted to the post of the Assistant Director (Group-B, Gazetted) by the notification dated 28.07.2011. For this purpose, Mr. Sharma, learned Addl. G.A. has placed the Departmental Promotion Committee's (DPC) Minutes and has also referred the relevant pleadings. In the Minutes of the DPC on whose recommendation 4 (four) private respondents were promoted to the post of Assistant Director (Group-B, Gazetted) by the notification dated 28.07.2011 where it has been observed as follows:

"The DPC in consideration of the grading awarded to the Officers coming in the zone of consideration recommend the name of the following Officers for promotion to the post of Assistant Director on regular basis with prospective effect and decide to keep the post against Sl. No.1, Sri Debasish Nath, S.I.O. in sealed cover as there is a disciplinary proceedings initiated against him."

[18] When the disciplinary proceeding was complete and the petitioner was exonerated from the charge, he had been given the promotion retrospectively from the date when those 4 (four) officers were promoted by the notification dated 28.07.2011, but no actual financial benefit was given to him, as the benefit was notional his seniority had been up-graded. The petitioner was placed below the respondent No.5, but above the respondent No.4. Therefore, the substantial grievance as emerged from the notification dated 28.07.2011 was taken care of.

[19] In the representation, the petitioner has himself admitted that the respondents No.3 and 5 though they are junior in the seniority list in the grade of Senior Information Officer but they got the accelerated promotion as they belong to the reserved category (ST). Unless the catch-up rule is applied, as the petitioner has correctly perceived the law, his seniority cannot be restored.

[20] This court has already noted that by the Constitution (85th Amendment) Act, 2001 which was given retrospective effect from 17.06.1995 invalidated the catch-up rule as set up by Ajit Singh (supra). By the said amendment, the following clause has been added below Article 16(4) amongst the other clauses

"(4A) Nothing in this article shall prevent the State from making any provision for reservation [in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State." [Emphasis added]

[21] This court is constrained to observe that even though the petitioner has made the general averments that the state government has not surveyed the adequacy or inadequacy of representation vis-a-vis the backwardness but they have continued to give the promotion to the reserved category candidates. Even the petitioner has not given any quantifiable data, nor he has filed the rejoinder on the face of the statement made by the respondents that still there is inadequate representation in the grade of Assistant Directors.

[22] However, Mr. D. Sharma, learned Addl. G.A. has submitted that in the pending case before the apex court, the state government has submitted the quantifiable data forming part of the report, submitted by a committee constituted by the state government. The apex court may consider the data before taking the final decision. As of today, the petitioner has failed to make up any case whereby this court can grant the relief by restoring his seniority position in the grade of the Senior Information Officer or to apply the catch-up rule for restoring his seniority over the respondents No.3 and 5.

[23] Being situated thus, this court does not have any other alternative but to dismiss the writ petition. In the circumstances the liberty is given to the petitioner to the extent that if the apex court in State of Tripura and Others Vs. Jayanta Chakraborty and Others reported in (2018) 1 SCC 146 favours the catch-up rule, he may approach this court again for claiming his seniority.

[24] There shall be no order as to costs.