Joydatta Chakma And Ors vs State Of Tripura And Ors

[1] By means of this writ petition, the petitioners namely Sri Joy Datta Chakma (the petitioner No.1) and Sri Suradhan Chakma (the petitioner No.2) have challenged in essence the orders of promotion of the respondents namely, Sri Mrinmoy Tripura (the respondent No.7), Sri Sumendra Debbarma (the respondent No.8), Smt. Sarmila Debbarma (the respondent N.9), Smt. Karuna Roga, (the respondent No.10), Sri Philip Jamatia (the respondent No.11) and Smt. Arpita Chakma (the respondent No.12) issued on 21.11.2016, 18.11.2016 and 18.11.2016 (Annexures- 9, 10 and 11 respectively). The said orders of promotion to the post of Head Clerk was made in favour of the respondents No. 10 and 11 on 18.11.2016, giving retrospective effect from 05.11.2014, in favour of respondents No. 7 and 9 on 21.11.2016 w.e.f. 05.11.2014 and in favour of respondents No.8 and 12 on 18.11.2016 w.e.f. 05.11.2014.

[2] It may be noted that the order of promotion to the post of Head clerk even though issued on two different dates but those were given retrospective effect from the same day i.e. 05.11.2014. According to the petitioners the respondents No. 7 to 12 were junior to the petitioners in the entry grade of Lower Division Clerk (LDC) but they were promoted to the post of Upper Division Clerk (UDC) ahead of the petitioner and subsequently by the impugned orders of promotion, as stated, they had been promoted to the post of head clerk. The petitioners have however stated that they were promoted as Upper Division Clerk (UDC) w.e.f. 10.02.2014 by the orders dated 22.11.2016 in respect of petitioner No.1 and by the order dated 18.11.2016 in respect of petitioner No.2, (Annexures- 6 and 7 respectively). But the private respondent stole the further march, having been promoted to the post of head clerk w.e.f. 5.11.2014, to the post of head clerk.

[3] The respondents No. 7 to 12 were placed in the seniority list (Annexure 8 to the writ petition) showing the seniority position as on 31.12.2016. Initially the seniority list [Annexure 8] was published as draft and later on, so far the petitioner and the respondents No. 7 to 12 are concerned, the said seniority list was published finally without any modification in respect of the position as shown in the draft seniority list of UDCs. Based on the said seniority list, the respondents No. 7 to 12 were promoted to the post of Head Clerk by those two impugned orders.

[4] According to the petitioner, they have been superseded first by the orders dated 17.08.2011, 07.06.2012 and 13.06.2012 (Annexures- 3, 4 and 5 respectively to the writ petition) while promoting the respondents No. 7 to 12 to the post of UDCs. By way of amendment, the said orders dated 17.08.2011, 07.06.2012 an 13.06.2012 have been challenged. However, in the original writ petition, the petitioners have urged this court to direct the respondents to promote the petitioners to the post of the UDC ahead of the respondents No. 7 to 12 or at least from 17.08.2011 when some of the respondents were promoted to the said post of UDC. It has been further urged to consider the petitioners for promotion in the post of Head Clerk after reverting the respondent No. 7 to 12 to the post of UDC.

[5] There is no dispute about the factual assertion as made in the writ petition. The respondents No. 2 to 6, in particular, have given their reasons why the petitioners were not given promotion to the post of UDC and later on, to the post of Head Clerk. It may be noted that in addition to the reply filed by the respondents No. 2 to 6 the respondent No.2 has filed additional reply in terms of the order dated 06.08.2019 passed by this court, the relevant part of which reads as follows:

"Mr. N. Majumder, learned counsel appearing for the respondents No. 2 to 6 has submitted that he has no other rule to show that for purpose of creation of zone of consideration, minimum three years of qualifying service is required. However, he has produced the rule whereunder it is found that for purpose of confirmation, three years of service is required. Against a vacant regular post, such person can be confirmed.

This court does not find any direct link between this provision to that of the promotional requirement and as such the District Judge, West Tripura, Agartala is directed to file a short affidavit on the question by 20.08.2019."

[6] The said reply was filed on 17.08.2019 whereas the comprehensive counter affidavit was filed on 27.09.2019 with special leave from this court. The respondents No. 7 to 12 have filed two replies, one in respect of the writ petition and the other in response to the amendment carried out in the writ petition by extending the challenge to the orders of promotion to the post of UDC .

[7] Let us first examine the reply filed by the respondents No. 2 to 6. The crux of their reply is available in para-10. According to them, the representations filed by the two petitioners in respect of their position in the seniority list and supersession were considered in the DPC held on 12.08.2017, 13.08.2017 and 14.08.2017. On such consideration it was resolved as under:

"The DPC unanimously considers representations of Sri Joy Datta Chakma, UDC and Sri Suradhan Chakma, UDC claiming seniority above Smt. Arpita Chakma, Head Clerk, Sri Sumendra Debbarma, Head Clerk, Sri Philip Jamatia, Head Clerk, Sri Mrinmoy Tripura, Head Clerk, Smt. Karuna Roga, Head Clerk and Smt. Sarmila Debbarma, Head Clerk. The factual position is that Sri Joy Datta Chakma and Sri Suradhan Chakma were appointed by the Learned District & Sessions Judge, the then North Tripura in the year 2009 while Smt. Arpita Chakma and 5 (five) others were appointed by the Learned District & Sessions Judge, West Tripura in the year 2009. But Smt. Arpita Chakam and 5 (five) others joined in service on 23.07.2009 while Sri Joy Datta Chakma and Sri Suradhan Chakma joined in service on 29.10.2009 and 30.10.2009 respectively. At the time of promotion to the grade of UDC in DPC dated 8th to 10th July, 2011 Sri Joy Datta Chakma and Sri Suradhan Chakma did not complete 2 (two) years of service in the feeder post while Smt. Arpita Chakma and 5 (five) others completed 2 (two) years of service in the feeder post. Hence, they were given promotion to the next higher grade of UDC. After, that, the draft common seniority list of LDC for the entire State of Tripura was published and approved by the Hon'ble High Court vide letter No. F.13(2)9a)-HC/2013/12647-50, dated 27.08.2013. Therefore, since it was decided that "the seniority list of LDCs recruited District-wise is prepared on the basis of year-wise recruitment and on the basis of percentage of marks obtained by the respective candidate in the interview" and such seniority list was approved by the Hon'ble High Court on and from 27.08.2013, now, it cannot be given effect on any date prior to 27.08.2013 to consider the seniority of Sri Joy Data Chakma and Sri Suradhan Chakma. As such their representations stands disposed of with this observation."

[8] In view of that decision of the DPC, it has been clearly contended that the petitioners are not entitled to have retrospective promotion to the post of UDC ahead of the respondents No. 7 to 12 or from 17.08.2011. But, the respondents have clearly stated that before implementation of Tripura District Courts Ministerial Establishment (Recruitment and conditions of Service) Rules, 2014, the recruitment and the promotion of the Ministerial employees in the district judiciary used to be governed by Tripura Subordinate Civil Courts Ministerial Establishment Rules, 1965 and the said rule is silent in respect of qualifying service for promotion to the subsequent grade. In para-14, they have asserted further as under:

"14. That, as a matter of prevailing system, on consultation of the office record, it is found that in the minutes of DPC dated 09.07.2005, there is indication that while considering the promotion to the post of Head Clerk, three years of completed service in the feeder post was taken into consideration. Similarly, from the minutes of DPC meeting held on 19.03.2006, it appears that for filling up the promotional post of Head Clerk, three years experience in the feeder post was taken into consideration. In the minutes of meeting of DPC held on 30.01.2007, there is indication that for promotion to the post of Head clerk, three years of service in the feeder post of UDC was taken into consideration. In the minutes of meeting of DPC held on 15.10.2007, for filling up the vacant post of Head clerk/Accountant, similar 3 years experience criterion in the feeder post was taken into consideration.

That, however, it is further found that the DPC in its meeting dated 26.07.2008 and 27.07.2008 proposed not to give promotion to any employee in the Grade of Head Clerk from UDC grade as the employees serving in the feeder post did not complete 3 years of service but proposed to utilize the services of suitable employees by the District Judges in the upper post as per provision of F.R.49 (Extract copy of Minutes dated 26.07.2008 and 27.07.2008 is enclosed as Annexure-"A") and in this regard the then Hon'ble Gauhati High Court, Agartala Bench, Agartala vide Letter No.F.13(2)(a)-HC/08/7685-687 dated 5th August 2008 was pleased to direct the then District & Sessions Judge, South Tripura District, Udaipur to inform under what provision the eligible period of three years was required for promotion to the post of Head Clerk Grade from UDC (Enclosed as Annexure-"B"). In turn the then District & Sessions Judge, South Tripura, Udaipur vide Letter No.F.4(26)-DJ/S/2007/5589-91 dated 28th August 2008 (Enclosed as Annexure-"C") furnished reply that the eligibility period for promotion of employees was considered on assessment of the confirmation of their services after successful completion of more than 3 years of service in the feeder post as per Rule 24 of the old Rules of 1965 as mentioned above. The then District & Sessions Judge, South Tripura, Udaipur therein also mentioned that the system for considering the eligibility period for 3 years for promotion of employees has been long going on in the DPC and following the said system the employees who have completed 3 years service in the grad were proposed to be promoted. Subsequently the said Minutes of the DPC meeting dated 26.07.2008 and 27.07.2008 wherein, it was proposed not to give promotion to any employee in the Grade of Head Clerk from UDC grade as the employees serving in the feeder post did not complete 3 years of service, was approved by the then Hon'ble Gauhati High Court, Agartala Bench, Agartala vide letter no.F.13(2)(a)-HC/07/8977-79 dated 3rd Sept 2008 (Enclosed as Annexure- "D").

That, from the minutes of DPC meeting held on 8th, 9th and 10th July, 2011, it appears that DPC considered the name of employees for promotion to the post of Sr. Seristadar/Office Superintendent (O.S) grade who completed 3 years of service in the feeder post but while considering the matter of promotion to the post of Head Clerk, as there was scarcity of eligible candidates, the DPC proposed for relaxation of eligibility criterion of experience of 3 years in feeder post of to 2 years except stenographer grade and proposed for promotion of employees to the post of Head Clerk who had completed 2 years of service. Said minutes of DPC meeting held on 8th, 9th and 10thJuly, 2011 is placed at (Enclosed as Annexure-"E"). Said minutes was approved by the then Hon'ble Gauhati High Court, Agartala Bench, Agartala vide communication No.F.13(2)(a)-HC/2011/10222-24 dated 02.08.2011 (enclosed as Annexure-"F").

That, thus, as it appears, the DPC would take into consideration 3 years of experience in the feeder post for promotion to the post of UDC, Head Clerk etc earlier though there was no specific provision in the Rules of 1965 in this regard, and only in the matter of confirmation of service in any post, provision for 3 years of service was made in Rule 24 of said Rules of 1965." [Emphasis added]

[9] This court has considered those explanation and finds that the averment are accurately structured on the records. In the reply filed by the respondent No. 2 in compliance to the order dated 06.08.2019, the same analogy has been adopted. The respondent No. 2 has stated that in the minutes dated 09.07.2005 it has been recorded that the promotion to the post of head clerk could only be considered only after completion of 3 years in the feeder post. The same practice has been followed by the DPC held on 19.02.2006. Even though, there is no stipulation in the Tripura Subordinate Civil Court Establishment Rules, 1965, the same practice was followed by the DPC held on 30.01.2007. From the minutes of the DPC held on 15.10.2007, it surfaces that three years' qualifying service in the feeder post was considered as criterion for promotion to the post of head clerk/Accountant.

[10] In the DPC held on 26.07.2008 and 27.07.2008 had observed that UDCs in the feeder grade did not complete 3 years of service. At one point of time, Gauhati High Court queried about requirement of experience/the qualifying service in the feeder grade inasmuch as such provision is not available in the Rules of 1965. It has been contended by the District & Sessions Judge, South Tripura that they have been following that long prevailing practice and that practice was 'approved' by the Gauhati High Court while approving the promotion in the year 2008 vide the letter No. F.13(2)(a)/HC/07/8977-79 dated 03.09.2008 (Annexure-D to the reply filed by the respondent No.2) .

[11] In the DPC held on 08-10 July, 2011 experience or qualifying service of 3 years were proposed to reduce to 2 years for promotion to the post of head clerk. The DPC's proposal to bring down the experience/ qualifying service to 2 years was approved by the Gauhati High Court vide the communication under No.F.13(2)(a)-HC/2011/10222-24 dated 02.08.2011 (Annexure-F to the reply filed by the respondent No.2). The respondent No.2 has clearly stated that Rule 24 of Tripura Subordinate Court Ministerial Establishment Rules, 1965 required 3 years of service for purpose of confirmation and not for any other purpose.

[12] The respondent No. 7 to 12 by filing their reply have categorically stated that at the time of consideration of promotion of the respondents No. 7 to 12, the petitioners did not complete the required years/qualifying service. However, their name was duly considered by the DPC held on 08-10 July, 2011 and they were recommend for the post of UDC and with approval of the Gauhati High Court, they were promoted. Thus, the petitioners have failed to make out any case relating to promotion to the post of UDC, ahead of the respondents No. 7 to 12.

[13] Mr. S.M. Chakraborty, learned Senior counsel appearing for those respondents has drawn attention of this court to the minutes of the DPC held on 08-10 July, 2011 where the list of eligible candidates who have completed of 3 years of service or 2 years of service including their category are available. The names of the petitioners for obvious reasons are not available in the said list. Following that practice evenly, the decision as was taken cannot prejudice the petitioners. Even they did not come within the category of 2 years experience for obvious reasons. The respondents namely Mrinmoy Tripura, Karuna Roga and Philip Jamatia did not complete 3 years, but they had completed 2 years. Thus, they conformed to the relax experience.

[14] Mr. A Bhowmik, learned counsel appearing for the petitioners has quite succinctly submitted that neither the 3 years of experience nor the qualifying service of 2 years of qualifying service is requirement of the Rules, 1965 and hence, the exclusion of the petitioners were grossly illegal. Further, Mr. Bhowmik, learned counsel has submitted that during the promotion exercise carried out in 2012, the petitioners have completed 2 years of service but on that year too they were excluded as they did not complete 3 years of experience or qualifying service in the feeder grade. Consequently, the petitioners were left behind and in the promotion post, their juniors occupied higher seniority position and got further promotion to the post of head clerk. Those actions of the respondents No. 2 to 6 are wholly unsustainable.

[15] It is apparent from the rival submissions that the grievance of the petitioner is fundamentally against the promotion of the respondents No. 7 to 12 to the post of UDC ahead of the petitioners and its consequential upheaval in the seniority position. Therefore, the question that falls for consideration whether the decision of the DPCs as approved by the Gauhati High Court is illegal or is in contrast to Tripura Subordinate Court Ministerial Establishment Rules., 1965? For purpose of reference, Rule 13 of the Tripura Subordinate Court Ministerial Establishment Rules., 1965 as amended time to time is required to be extracted. The said Rule 13 provides as follows:

"13. Promotion: (1) The post in a judgeship are ordinarily reserved for clerks in that judgeship and promotion to higher posts shall ordinarily be made from amongst them. If no suitable clerk is available in the judgeship for promotion to particular post, promotion may be from another judgeship with the sanction of the Judicial Commissioner's Court.

(2) Promotion to posts in the Upper Division Grade shall be made according to seniority subject to efficiency.

Provided that no person shall be appointed substantively as Accountant or Assistant Accountant/Accounts clerk unless he has got training in account or has passed such test and fulfils such other conditions as may be prescribed for the purpose from time to time. A degree in Commerce will get precedence to a training in account at shilling or elsewhere.

A training in account is an additional qualification even for a promotion to a post in general cadre.

(3) No person shall be appointed as Bench clerk unless he completes two years service in any section under that Judgeship.

(4) Persons holding posts in the lower division grade shall not be eligible for promotion to selection posts provided that such persons shall not be debarred from being appointed as stenographer, if he is otherwise eligible for such appointment.

(5) The posts of Sheaistadar to Dist. Judge's Court, the post of Head Clerk to the District Judge and the post of Accountant and of Nazir in the establishment of the District Judge are to be treated as selection posts; and nobody shall claim that posts as of right by virtue of seniority.

Note: In passing over a person for inefficiency, due weight shall be given to his previous record of service and seniority should be disregarded only when the Official or Officials passed over are unfit to hold the post to which promotion is to be made.

(6) if the service of a Class III and Class IV officer attached to the officer of the Registrar, J. C's Court is placed under order of the Judicial Commissioner at the disposal of the District Judge, the staff will be taken in the same or equivalent cadre and pay scale and will be considered and treated as an officer recruited by the District Judge for all purposes, subject to the provisions of the Central Civil Services (classification, control and appeal) Rules, 1957." [Emphasis added]

[16] The practice that has been followed by the DPC for promoting the respondents No.7 to 12 is apparently inappropriate in view of sub-rule 2 of Rule 13 of Tripura Subordinate Court Ministerial Establishment Rules, 1965. There is no dispute that the petitioners were ranked senior in the grade of LDC even though they had joined latter and the respondents No.7 to 12 joined early in the post of LDC in terms of their merit in the selection test. It is not denying fact that the recruitment was made in the year 2009 and the seniority was determined in terms of their performance in the selection process. None of the respondents have challenged the seniority position of the petitioners in the grade of LDC. Hence, there is no controversy relating to the seniority of the petitioners. The petitioners were above the respondents No.7 to 12 in the grade of LDC. The DPC was competent to scale the efficiency of the petitioners and the respondents No. 7 to 12 but without doing so and without consideration, the petitioners were excluded as they did not complete 3 years of experience or the qualifying service in the grade of LDC. Similarly, in the year 2012, the DPC excluded the petitioners for not having completed 2 years of experience or the qualifying service as relaxed for that year.

[17] It is further admitted that the petitioners did not challenge the order of promotion of the respondents No. 7 to 12 to the post of UDC before 18.09.2018 when the petitioners filed the amendment petition being IA No.01 of 2018 arising from WP(C) 106 of 2018. After such long lapse, whether the order of promotion of the respondents No.7 to 12 to the post of UDC vide orders dated 17.08.2011, 07.06.2012 and 13.06.2012 (Annexure 3, 4, and 5 to the writ petition) can be allowed to challenge or the court should disturb the settled position on a belated challenge. There cannot be any amount of doubt that the DPC did not follow the appropriate process for making recommendation for promotion to the post of UDC. Consequently, the petitioners lost their promotion to the subsequent higher grade of head clerk.

[18] It cannot be denied that the petitioners did file the representation and such representation is confined to promotion to the post of head clerk so far it can be gathered from the minutes of DPC held on 12-14.08.2017. Thus, it is apparent that the petitioners were sleeping over their right to seek redress against violation of their right by not observing Rule 13(2) of the said Rules, 1965. Those who sleek over their right cannot after a long slumber cannot awake to seek the remedy. If a Wrip Van Winkle is allowed to come to the court for seeking remedy after lapse of long years, the court would not resurrect the right which has become stale by efflux of time. Such relief, if granted, would unsettle the consolidation formed by passage of time.

However, to undo the injustice, it would be equitious to direct the respondents to promote the petitioners to the post of head clerk from the date when the respondents No. 7 to 12 were appointed in the post of head clerk. The petitioners' pay in the post of head clerk be fixed afresh. Arrears pay and allowance, as may accrue, be paid within 3 (three) months from the day when a copy of this order will be available to the respondents No. 1 to 6.

However, the seniority position of the respondents No. 7 -12 shall not change.

It is declared that the practice that was being followed by the consecutive DPCs was not in conformity with the said Rule 13(2) of the Rules, 1965.

In terms of the above, this writ petition stands disposed of.

There shall be no order as to costs.