Pradip Kumar Deb vs State Of Tripura And Ors

[1] Heard Mr. T. D. Majumder, learned counsel appearing for the petitioner as well as Mr. M. Debbarma, learned Addl. G.A. appearing for the respondents No.1, 2 & 3 and Ms. R. Purkayastha, learned counsel appearing for the respondent No.4.

[2] By means of this writ petition, the petitioner has urged this court to direct the respondent No.1 and 2 in particular, to consider his promotion to the post of Accountant w.e.f. 28.03.2013, the date when his immediate junior, the respondent No.4 was given promotion to the post of Accountant by the order under No. F.2-3(1)-ESTT/DF/2013/4787-4823 dated 28.03.2013 (Annexure-11 to the writ petition). The petitioner has further urged before this court to grant the pay and allowances of the post of Accountant w.e.f. 28.03.2013 as he has been deprived unfairly from the benefit of promotion. The material facts are to be noted briefly at the beginning. The petitioner had entered in the service as LDC (Lower Division Clerk) (UR) on 05.10.1987 and he was confirmed in the said post on 24.11.2006.

[3] Mr. Majumder, learned counsel appearing for the petitioner has pointed out that the petitioner has retired as UDC from the service w.e.f. 30.11.2018 (afternoon) on superannuation and during the pendency of this writ petition. The petitioner was allowed up-gradation of scale under Career Advancement Scheme (CAS) in terms of Rule 10 of the Tripura State Civil Services (Revised Pay) Rules, 1999 and also on completion of 7 (seven) years from the grant of the first up-gradation scale, he was allowed to move to the second up-gradation scale under CAS. Even the respondent No.4 got the similar up-gradations. For purpose of promotion to the post of Accountant, the accounts training is the essential requisite. The Tripura Accounts-cum-Administrative Training Rules, 1998 has incorporated an exemption Clause under Rule 10 (a) (iv) which provides, inter-alia, as under:

"Successful completion of the training may be exempted from the operation of these rules or his/her attaining the age of 55 years. If he could not avail of or successfully complete the training under these Rules".

A copy of that said Rule has been appended by the petitioner at Annexure-10 of the writ petition.

[4] In this regard, there is no dispute. It is also not in dispute that on 23.03.2013, the Departmental Promotion Committee (DPC) was convened for consideration of promotion to the post of Accountant from the feeder grade of UDC/UDC(A). The petitioner's case, as it appears from the records, was not sent for consideration. But, the case of the respondent No.4 was sent. Though admittedly, the respondent No.4 is junior to the petitioner in the grade of UDC. Thus, the DPC recommended the name of the respondent No.4 for promotion to the post of UDC and by the order dated 28.03.2013 (Annexure-11 to the writ petition), the respondent No.4, junior to the petitioner, was promoted to the post of Accountant.

[5] The respondents No. 1, 2 & 3 by filing their reply have categorically stated that since the petitioner did not have the accounts training, in terms of the Rules (Annexure-10 the writ petition), he was not fit to be considered and accordingly his name was not sent to the DPC for purpose of consideration. In this regard, the petitioner's case is very definite and assertive. The petitioner was selected for the accounts training along with the respondent No.4 as would be evident from the memorandum under No.F.2-1(13)-ESTT/DF/2003(Part) dated 10.05.2012 (Annexure-7 to the writ petition). But the petitioner was restrained by the Departmental Authority as he has been detained for the Election Duty for By-Election which was held for Nalchar Assembly Constituency on 12.06.2012. The radio message (Annexure-8 to the writ petition) by which the petitioner was detained, reads as follows:

"KINDLY REFER TO THE LETTER NO.F.298/(P/2000 P&T)/2000 DT. 27-04-2012 ISSUED BY THE DY. SECRY. TO THE GOVT. OF TPA G.A ( P & T) REG. DEPUTATION FOR TRANING WHO ARE WORKING TO THE AREA OF THE SPJ DISTRICT DUE TO BYE ELECTION WHICH WILL BE HELD ON 12.06.2012 COMMA SRI PRADIP KUMAR DEB U.D.C. MAY NOT BE RELEASED FROM THIS END TO PARTICIPATE IN THE ACCOUNTS CUM ADMINISTRATIVE TRAINING () BUT HIS CASE MAY BE CONSIDERED IN THE NEXT COURSE OF TRAINING SESSION () FOR KIND INFO, ()...."

[6] Thus, the petitioner could not join his training programme though he was found eligible. But his junior had successfully completed the training and by virtue of the recommendation of the said DPC, he was promoted to post of Accountant by superseding the petitioner even though admittedly the petitioner is senior than the respondent No.4 in the feeder grade.

[7] It has been asserted by the petitioner that on the next session he was again nominated and he had completed the Accounts-cum-Administrative training. The DPC, which set in the year 2015, had recommended the name of the petitioner for promotion to the post of Accountant. But, the petitioner could not be promoted for two reasons. Firstly, the blanket prohibition issued by the Election Commission and secondly, the subsequent order for maintaining status-quo by the apex court in a case unrelated to the petitioner's promotion. The petitioner has further asserted that the post of Accountant being non-selection post, the petitioner is entitled to be promoted to the post of Accountant w.e.f. 28.03.2013 as his junior has been promoted on that date. All these factual assertions made by the petitioner have been categorically admitted by the respondents. The relevant part of the reply filed by the respondents No. 1, 2 & 3, for obvious reasons, is being extracted hereunder:

"It is also fact that the respondent No.4 was promoted to the post of Accountant vide order No.F.2-3(1)-ESTT/DF/2013/4787-4823 dated 28.03.2013 (Annexure-11 to the writ petition) based on the recommendation of the DPC sat on 20.03.2013. The said DPC found fit for promotion of 14 (fourteen) candidates from the feeder grade of UDC/UDC(A) to the post of Accountant as per provision made in Recruitment Rules and the name of respondent No.4 (who completed more than 7 years of service in the grade of UDC and acquired Accounts training) was figured at Sl No. 13 of said list.

There is no denying the fact that the name of the petitioner figured at Sl No. 35 while the respondent No.4 was at Sl No. 36 in the seniority list of the UDC showing the position as on 31.08.2011 (Annexure-11 to the writ petition). It is reiterated that as per, RR, there are certain requirement for promotion to the post of Accountant from the feeder grade of UDC. Despite having seniority, the petitioner could not get promotion for lacing of these requirements as per RR whereas the respondent No.4 got promotion to the post of Accountant for having requisite requirements as observed by the DPC sat on 20.03.2013".

Further, the respondents No. 1, 2 & 3 in their reply, have admitted certain facts which are paramount in the controversy in the manner as under:

"It is fact that DPC held on 25.03.2015 for promotion to the post of Accountant recommended the name of the petitioner in UR category but the said recommendation could not be regularized by the Department due to model code of conduct as imposed subsequently twice (for ADC and Assembly Bye-Election) during that material period as well as the SLP(C) 19765-19767 of 2015 which was arisen out of impugned final judgment and order dated April 19, 2015 in WP(C) 109/2011, 124/2012 & 189/2011 passed by the Hon'ble High Court of Tripura in respect of service matters (promotion), State Government is of the opinion that till order is passed by the Supreme Court in SLP filed by the State, promotion matter may be kept pending.

A copy of order-sheet alongwith type copy is annexed herewith and marked as Annexure R/2.

It is also reiterated that promotion of all category of posts in the Departments are still kept in pending consequent up on Memo No.F.2 (24)/GA/(P&T)/05(Vol-II) dated 1st April, 2017. A copy of said memo is annexed herewith and marked as Annexure- R/3. "

[8] On reading of the memorandum dated 01.04.2017 (Annexure R-3 reply filed by the Respondent No. 1 & 2), it appears that in view of the order dated 27.03.2017 as passed by the apex court, the state government has held up promotion till disposal of the said petitions, pending in the apex court or until further order, whichever is earlier. The said memorandum also provides as follows:

"2. The Memorandum of even number dated 14.12.2016 issued by this Department is accordingly kept in abeyance until further order and all the concerned authorities under the State Government including PSUs and TPSC etc. are hereby directed to strictly adhere to this instruction with letter and spirit."

[9] The latter part of the position as taken by the respondents No.1 & 2 is that no promotion has been made in terms of the memorandum dated 01.04.2017. But, that has been seriously disputed by the petitioner in his rejoinder filed on 20.06.2019. The petitioner has placed few orders of promotion to buttress his contention in this regard. The petitioner has placed the order dated 06.01.2017 (Annexure-1 to the rejoinder) whereby promotion to the post of Head-Clerk-cum-Accountant has been made from UDC by the Directorate of Panchayats. The petitioner has also produced the order dated 06.01.2017 (Annexure-2 to the rejoinder) whereby the Panchayat Secretaries have been promoted to the post of Auditor with immediate effect but in the said order, it has been noted that such promotion orders are without prejudice to SLPs pending before the apex court. It has been clearly denoted that the promotion orders issued are subject to outcome of SLPs pending before the apex court. Similar order, by appointing Panchayat Secretaries to the post of Supervisor (Panchayat) by way of promotion vide the order dated 06.01.2017 (Annexure-3 to the rejoinder), has been placed by the petitioner. That apart, the order dated 06.01.2017 (Annexure-4 to the rejoinder) shows that promotions were made to the post of UDCs from the feeder post of Lower Division Clerk by the Directorate of Panchayats.

[10] It may be mentioned that for this kind of orders, the apex court subsequently initiated and the contempt action, which is still inconclusive. Mr. T.D Majumder, learned counsel appearing for the petitioner has contended that the petitioner was superseded in the promotional exercise carried out in the year 2013. Thereafter, in the year 2015, when the petitioner was recommended for promotion, that was not acted upon for the reasons as aforesaid. The petitioner has become the ultimate victim of arbitrariness and the policy paralysis, and the petitioner has been discriminated against the respondent No.4 who has been given promotion completely in contrast to fairness in action as enshrined by Article 14 of the Constitution of India.

[11] On the contrary, Mr. M. Debbarma, learned Addl. G.A. appearing for the respondents has submitted that for various reasons, the recommendation made by the DPC in the year 2014 could not be implemented before retirement of the petitioner. Since the petitioner has by now retired, there is no question of promoting him to the post of Accountant. However, Mr. Debbarma, learned Addl. G.A. appearing for the respondents has fairly submitted that if there is any supersession, that cannot be termed as supersession per se because during the time of consideration by DPC in the year 2013, the petitioner was lacking the basic requisite of successful completion of the accounts-cum-administrative training.

[12] Ms. Purkayastha, learned counsel appearing for the respondent No.4 has supported the submission made by Mr. Debbarma, learned Addl. G.A. appearing for the respondents No. 1, 2 & 3.

[13] Having appreciated the submission made by the counsel for the parties, this court is of the view that the petitioner was superseded during the promotional exercise in the year 2013 for no fault his. It is the competent authority who held back the petitioner from joining the training programme and he was detained for the election duty. Subsequently, the petitioner has completed the accounts training. The competent authority had two options to undo the supersession that has been caused in the year 2013 viz. (1) during the exercise of 2013, the promotion of the respondent No.4 to the post of UDC should have been deferred or (2) The petitioner would have been given promotion from the same date i.e. 28.03.2013. But, that has not been done. Even the petitioner was recommended for promotion, the said recommendation has not been implemented by granting the promotion to the petitioner to the post of accountant.

[14] The objection that has been raised by Mr. Debbarma, learned Addl. G.A. appearing for the respondents regarding promotion after retirement, Mr. Majumder, learned counsel appearing for the petitioner has relied on the decision of the apex court in Sudha Shrivastava vs. Comptroller and Auditor General of India reported in (1996) 1 SCC 63, where the apex court has propounded the principle of law.

It will be useful at this stage to refer to the case Rameshwar Manjhi v. Management of Sangramgarh Colliery, (1994)1 SCC 292. In that case, during the adjudication of dispute relating to the termination of a workman, the said workman died and a question arose whether the heirs and legal representatives of the deceased workman were entitled to continue with the proceedings for adjudication. While upholding the right of the heirs and legal representatives to continue with the proceedings for adjudication, it was observed as follows:

"It is thus obvious that the applicability of the maxim `action personalize moritur cum persona' depends upon the `relief claimed' and the facts of each case. By and large the industrial disputes under Section 2-A of the Act relate to the termination of services of the concerned workman. In the event of the death of the workman during pendency of the proceedings, the relief of reinstatement, obviously, cannot be granted. But the final determination of the issues involved in the reference may be relevant for regulating the conditions of service of the other workmen in the industry. Primary object of the Act is to bring industrial peace. The Tribunals and Labour Courts under the Act are the instruments for achieving the same objective. It is, therefore, in conformity with the scheme of the Act that the proceedings in such cases should continue at the instance of the legal heirs/representatives of the deceased workman. Even otherwise there may be a claim for back wages or for monetary relief in any other form. The death of the workman during pendency of the proceedings cannot deprive the heirs or the legal representations of their right to continue the proceedings and claim the benefits as successors to the deceased workman."

Just as a legal representatives of the workman could claim back wages or any other monetary relief which would had ensued to the deceased workman, similarly, in the present case, the right to get the benefits, which would have been due to the appellant's husband as a result of the "sealed cover" procedure, would devolve on the appellant. The sealed cover will have to be opened and if it transpires that he was fit for promotion, then, he is to be deemed to have been promoted to the post of Accountant General (Grade- II) in the pay scale of Rs.2,250-2,500/- and, thereafter, he is also have to be considered for promotion to the post of Accountant General (Grade-I) in the higher scale of Rs.2,500-2,750. It is not in dispute that this procedure would have had to be followed if the husband of the appellant had been alive when the High Court delivered the judgment, setting-aside the conviction.

[15] There cannot be any difficulty in accepting the principle as laid down Sudha Shrivastava (Supra) that merely for retirement or the death, the rightful claim cannot be dislodged by the court when the deprivation was apparent and abrasive in contrast to Articles 14 & 16 of the Constitution of India. Here is a case, this court finds, that there is flagrant violation of all principles and as such it is declared that the petitioner is entitled to get the promotion to the post of Accountant w.e.f. 28.03.2013 when the respondent No.4 was promoted to the post of Accountant. It is declared as well that the petitioner was found by the competent DPC to be eligible for promotion to the said post of Accountant. That apart, the detention of the petitioner for By-election duty, was an action of the respondent for which the petitioner cannot be blamed in any manner or allowed to suffer consequences. Therefore, the deprivation is arbitrary on the face of the records. However, this court finds that the writ petition has been filed after long many years i.e. in the year 2018 and the petitioner did not approach this court in the earliest opportunity as expected.

Having regard to this, the respondents are directed that the petitioner shall be appointed retrospectively w.e.f 28.03.2013 in the post of Accountant and his pay shall be fixed from that date notionally till the date when the writ petition was filed i.e. 21.11.2018 and thereafter, the petitioner will be entitled to get all the financial benefits based on refixation of pay in the pay scale applicable for Accountant till his retirement. His last pay shall be determined on the basis of this order, meaning by fixing the pay w.e.f. 28.03.2013 for Accountant. On the basis of the last pay, the pension payment order shall be revised. The entire exercise shall be completed within a period of 4 (four) months from today including the payment of the arrears in terms of this order.

It may be noted that this court is not inclined to interfere with the appointment of the respondent No.4 in the post of Accountant inasmuch as the petitioner has already retired from the service.

In the result, the writ petition stands allowed to the extent as indicated above.

There shall be no order as to costs.