Manik Das vs State Of Tripura And Ors.

By means of this writ petition, the petitioner has urged this court to set aside the Memorandum No.F.12(2)- GA(P&T)/06 dated 05.04.2011, Annexure-I to the writ petition, whereby the claim of the petitioner's seniority over Sri Nagendra Debbarma and Dilip Roy has been declined. Further, the petitioner has urged that he be placed at Sl.No.37 above the respondents No.5 to 8 in the seniority list as published on 05.04.2011, Annexure-J to the writ petition.

The facts are mostly undisputed. The petitioner was initially appointed in the Tripura Police Service, Grade-II by virtue of the Notification No.F.23(26)-GA-98 dated 24.09.1998, Annexure-A to the writ petition. The petitioner's name appears at Sl.No.21 of the said notification, whereas the names of the respondents No.5 to 9 appear at Sl.No.24, 25, 27, 30 and 20 respectively. Since the petitioner does not have any claim of seniority over the respondent No.9, whenever the respondents No.5 to 8 would be referred, they would be referred as the private respondents and for sake of convenience, that phrase would not include the respondent No.9.

There is no dispute that a meeting of the Departmental Promotion Committee was convened on 31.07.2008 for promotion to the TPS, Grade-I (Selection Grade), Group-A (Gazetted) from the TPS Grade-II. At that time, the following vacancies were available in the said grade as shown against the various categories:

"SC-02, ST-04, UR-13, in total 19"

There is no dispute that the petitioner does belong to the SC category. As such, the petitioner could only be considered against the UR category and SC category and, if any vacancy was left out against the ST category, he could have been considered against the ST category vacancy also by way of exchange. Further, this is the admitted position that all the UR category vacancies were filled by the DPC and against those vacancies the petitioner's name was not recommended. However, against the two SC vacancies, the following names were recommended:

(i) Sri Dilip Roy,

(ii) Sri Chinmoy Roy (the respondent No.9),

(iii) Sri Manik Das (the petitioner) ,and

(iv) Sri Pinaki Samanta (not cleared by vigilance)

On scrutiny it is revealed that in the DPC Minutes the following observation has been made:

"8. It is reported by the Administrative Department that Shri Chinmoy Roy (SC), TPS, Gr.II (Sl.No.20 of para-7 above) is now working as Lecturer in Commerce, Tripura University and he has been permitted to retain his lien for 2(two) years for the post of TPS Gr.II under the Government of Tripura. 2(two) years would be completed on 19.11.2008. He should be given reasonable opportunity indicating that if he fails to do so he will forgo promotion opportunity. In the event of his failing to do so, the next below officer Sri Manik Das (SC) bearing Sl.No.21 may be appointed as TPS, Gr-I."

The respondent No.9 did not accept promotion and he did not report in the said post. The petitioner was permanently appointed as the Reader in Commerce in Tripura University in the scale of pay of Rs.12000-18300/- with other admissible allowances by the order dated 26.12.2008 and, he had terminated his lien thereafter. According to the petitioner, he was entertained against the said vacancy available for non- acceptance of promotion by the respondent No.9. The petitioner was appointed to the TPS Grade-I (Selection Grade) by the notification No.F.35(38)-GA(P&T)/98 dated 22.12.2008, Annexure-E to the writ petition.

By the said notification issued under Rule 30 of the Tripura Police Service Rules, 1967 the petitioner was appointed in the TPS Grade-I (Selection Grade) on promotion in the scale of pay of Rs.11150-18275/- on regular basis, but with prospective effect.

The entire controversy hinges on providing the prospective effect of promotion in respect of the petitioner. The petitioner's claim of seniority is based on the petitioner's claim to get the appointment on promotion to the said grade alongwith the private respondents who were appointed by the notification under No.F.2(10)-GA(P&T)/2000(Part) dated 05.08.2008, copy of which has been produced before this court by Mr. B. Datta, learned counsel appearing for the respondents in compliance to the order dated 29.05.2017.

The respondents No.1 to 3, by filing their reply has stated categorically that at the time of appointment to the TPS Grade-II the private respondents (the respondents No.5 to 8) were junior to the petitioner. By the notification dated 05.08.2008, 19 TPS Grade-II officers were allowed promotion to the post of TPS Grade-I (Selection Grade). The respondents No.1 to 3 have pointed out that the 2nd provision of Rule 9(2) of the Tripura Scheduled Castes and Scheduled Tribes Rules, 1992 (as amended), provides that-

"At the time of recommending candidates for promotion to any post, the name against un- reserved (vacant posts) shall first be recommended in order of their merit or seniority or seniority-cum-fitness etc. as the case may be, and then the names against reserved (vacant posts) shall be recommended".

The posts, according to those respondents have been filled up according to the 100 point roster i.e. in accordance with the manner as stated above by Rule 9(2) of the said Rules. At the material point, two posts were earmarked for SC candidates. The above two posts have been filled up from the senior incumbents. The respondents No.5 to 8 are from the Scheduled Tribe category. They have been allowed promotion against the vacancies available for the ST candidates. In the reply, the respondents No.1 to 3 have stated categorically as under:

"Therefore, question of allowing promotion to the petitioner alongwith the 19(nineteen) others who were allowed promotion vide Notification dated 5th August, 2008 does not arise since at that material period there were no posts for accommodating the petitioner to the post of TPS Grade-I. Subsequently, Shri Das had been allowed promotion vide Notification dated 22nd December, 2008 as and when vacancy has been arisen."

In no uncertain terms, the official respondents have observed that the respondent No.9, who was senior to the petitioner, was promoted by the notification dated 05.08.2008 and his name appears at Sl.No.15 of the said notification. Thus, after issuance of the notification dated 05.08.2008 there was no vacancy in the SC category. Since the respondent No.9 did not join the promotion post i.e. TPS Grade-I (Selection Grade), against that vacancy, the petitioner was promoted to the post of TPS Grade-I (Selection Grade) by the notification dated 22.12.2008 and, hence the petitioner is not entitled to claim his promotion retrospectively from the date when the private respondents were promoted or the other TPS Grade-II officers were appointed on promotion by the notification dated 05.08.2008. As the respondent No.9 did not join in the promotional post in terms of the notification dated 05.08.2008, a vacancy in the said grade/post arose and the petitioner was considered against the said vacancy. Thus, the respondents have contended that there is no infirmity in the process or in issuing the notification dated 22.12.2008 by appointment of the petitioner in the TPS Grade-I (Selection Grade) on promotion prospectively.

Heard Mr. S.M. Chakraborty, learned senior counsel, who has strenuously argued that it was known to the DPC that the respondent No.9 might not join to the promotion post. Therefore, the petitioner ought to have been appointed in the promotion post i.e. TPS Grade-I (Selection Grade) with effect 05.08.2008 alongwith the private respondents and, his seniority would have been accordingly fixed in the final seniority list.

From the other side, Mr. B. Datta, learned counsel appearing for the respondents has submitted that the said recommendation of the DPC is superfluous inasmuch as it is found from the DPC recommendation that the respondent No.9 was on lien and, as such the respondents No.1, 2 and 3 were bound by the condition of lien to promote him to the promotion post if he was otherwise found eligible. Therefore, all the vacancies as was available (19 in total) were filled up by that exercise. The petitioner was not found to be accommodated against those 19 vacancies.

Having appreciated the submission of the learned counsel for the parties, this court is of the view that the process that has been adopted by the respondents No.1, 2 and 3, does not suffer from any infirmity inasmuch as by the notification dated 05.08.2008 all 19 (nineteen) vacancies of the TPS Grade- I (Selection Grade) were filled up and, hence the petitioner did not have any right against any of those posts. Even the petitioner has not claimed likewise. Subsequently, as the respondent No.9 did not report to the promotion post and his lien was not renewed, a vacancy arose against the said post and, in terms of the recommendation of the DPC, the petitioner was entertained against the said post. But, the petitioner cannot claim that he ought to have been promoted to that post retrospectively with effect from 05.08.2008.

Hence, the writ petition is devoid of any substance and, accordingly, the same is dismissed.

There shall be no order as to costs.