Ramkrishna Debbarma vs Nishi Debbarma And Ors

Akil Kureshi, CJ

[1] This appeal is filed by the original respondent No.6 of WP(C) No.308/2015 to challenge a judgment dated 9th June, 2016 rendered by the learned single Judge in the said petition.

[2] Brief facts are as under :

The respondent No.1 herein original petitioner had filed the said petition challenging inter alia an order dated 13th December, 2007 by which the ad-hoc promotion granted to the appellant herein original respondent No.6 on 10th July, 2007 to the post of Executive Officer(Finance) was confirmed and his promotion was regularised from the said date.

[3] The petitioner pointed out that he was appointed to the post of Deputy Executive Officer in the Tripura Tribal Area Autonomous District Council ("TTAADC" for short) under order dated 18.12.1996 and he joined to the said post on 7th January, 1997 whereas the respondent No.6 was appointed to the post of Deputy Executive Officer(Finance) on 2nd June, 1997. Thus the respondent No.6 was junior to the petitioner, despite which ignoring the claim of the petitioner the said respondent was promoted to the post of Executive Officer(Finance). The petitioner also contended that in between the post of Deputy Executive Officer and the Executive Officer, there was an intermediary post of Additional Executive Officer. The respondent No.6 was thus directly promoted to the post of Executive Officer without first granting promotion to the post of Additional Executive Officer. On both these grounds, his promotion was challenged.

[4] The case of the respondent No.6, however, is that in the employer organization there were different streams of Deputy Executive Officers. He was appointed as Deputy Executive Officer(Finance) which was a single cadre post and the petitioner was appointed as a Deputy Executive Officer (Administration). Their seniority lists were separately maintained. There was thus, no question of comparing inter-se seniority of the two officials. The petitioner further pointed out that the post of Additional Executive Officer was created under the office memorandum dated 13th December, 2007 by which time, he was already promoted to the post of Executive Officer and this structural change would not affect the promotion already granted to him.

[5] The respondent No.6 had filed no affidavit, however, official respondents had filed replies in which it was contended that the post of Deputy Executive Officer(Finance) is a single post whereas the petitioner was appointed to the post of Deputy Executive Officer which is a general post for running the general administration. The seniority position of the two officials, therefore, cannot be compared. It was further stated that the said respondent was granted ad-hoc promotion on the basis of his suitability which promotion was regularised after framing of the recruitment rules.

[6] The learned Single Judge by the impugned judgment came to the conclusion that no records were produced by the administration to show that the post of Executive Officer(Finance) and other Executive Officers are separately treated and do not form part of the same cadre. This distinction sought to be drawn by the administration was thus overruled. Finding that the respondent No.6 was junior to the petitioner but was granted promotion without considering the case of the petitioner, the learned Single Judge provided that if the official respondents create a supernumerary post of Executive Officer to accommodate the petitioner by way of promotion from the date when respondent No.6 was promoted, the promotion of the respondent No.6 will not be disturbed. However, if the official respondents do not create such a supernumerary post, then the promotion of respondent No.6 by the impugned memorandum would be struck down and in which case, the vacant post would be filled up by carrying out fresh process for promotion by considering the eligible officers.

[7] Appearing for the appellant original respondent No.6, learned counsel Mr. Arijit Bhowmik submitted that the petitioner and the respondent No.6 were recruited on different posts forming different cadres. These posts were not amalgamated for promotion to the next higher post. The petitioner thus was not eligible for promotion to the post of Executive Officer(Finance). He could not, therefore, challenge the promotion of the respondent No.6. He further submitted that there was gross delay in filing the writ petition. Respondent No.6 was promoted in the year 2007. The writ petition was filed in the year 2015. Delay of 8 years was totally unexplained.

[8] Learned counsel appearing for the original petitioner opposed the appeal contending that the official respondents produced no contemporaneous record to show that the posts of Deputy Executive Officer(Finance) and Deputy Executive Officer(Administration) formed two separate cadres. The learned Single Judge, therefore, discarded such a theory. Once this is clear, the petitioner had a prior claim for being considered to the promotional post. Without considering the petitioner respondent No.6 was granted such promotion which was rightly objected to by the learned Single Judge.

[9] No one appeared for the official respondents.

[10] There is prima facie evidence to suggest that the post of Deputy Executive Officer(Finance) was an isolated post and upward movement from the said post also would be in the stream of finance and not in the parallel stream of officers of general administration. This issue got much clarity when the TTAADC framed the recruitment rules under a notification dated 30th November, 2007 which were published in the official gazette on 13th December, 2007. As per these rules, post of Executive Officer(Finance) would be filled up by way of promotion from amongst the officers holding the post of Additional Executive Officer(Finance) with minimum of 8 years of experience. Below the post of Additional Executive Officer(Finance) in the hierarchy stands the post of Deputy Executive Officer(Finance). This structure was put in place under a memorandum dated 30th August, 2007 when the said intermediary post of Additional Executive Officer(Finance) was created. However, these developments are subsequent to the grant of ad-hoc promotion to the appellant. What was the exact position prior to the date of ad-hoc promotion the appellant is not clearly brought out on record. It was the duty of TTAADC to bring facts to the notice of the Court only upon which the Court could have examined the issue in proper perspective.

[11] However, there is independent reason why we are of the opinion that the writ petition should not have been entertained. This is on the ground of delay and laches. As noted, the petitioner had challenged a memorandum issued by the TTAADC regularising the promotion of the respondent No.6 on the post of Executive Officer(Finance). Ad-hoc promotion was granted in July, 2007. Regularization order was issued in December, 2007. The writ petition was filed in the year 2015 i.e. 8 years later. There is no proper explanation for such inordinate delay. The petitioner does not contend that he was not aware about such developments. He himself was an officer of the same organization. He was also promoted to the post of Additional Executive Officer by order dated 7th May, 2008. In the petition, he has stated that after his promotion to the said post of Additional Executive Officer he realised that his legitimate expectation to be promoted to the post of Executive Officer upon completion of 8 years of service has been adversely affected by the illegal promotion granted to respondent No.6. He, thereupon, made a representation to the department on 6th January, 2015 and followed it up with a legal notice dated 28th February, 2015. Since there was no response to either of these two communications, he filed the petition.

[12] In our view, such averments are hopelessly inadequate to explain long and inordinate delay of 8 years in filing the writ petition. By his own account, he was aware about the injustice done to him as far back as in May, 2008. Despite this, his first response was of making a representation on 6th January, 2015 i.e. seven and a half years later. Thus the petitioner had not taken any effective steps for years together to challenge the promotion granted to respondent No.6. Such promotion cannot be unsettled after several years which lapsed on account of total inaction on part of the petitioner.

In the result, appeal is allowed. Impugned judgment is set aside. Petition stands dismissed. Pending application(s), if any, also stands disposed of.