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Judgment
Heard Mr. R. Datta, learned counsel appearing for the petitioners as well as Mr. D. K. Biswas, learned counsel appearing for the respondents.
By means of this writ petition as many as 22 petitioners have challenged the Note-1 of the 4th schedule to the Tripura Agricultural Service Rules, 1989 as amended by the Tripura Agricultural Service (3rd Amendment) Rules, 2012, as the said note stands in contrast to the Tripura Schedule Caste and Schedule Tribes Reservation Act, 1991 [as amended] and the Tripura Scheduled Castes and Scheduled Tribes Reservation Rules, 1992, as amended and provisions of Rule 10 and 27 of Tripura Agricultural Service Rules, 1989. As corollary, it has been urged to strike down the said note-1 contained in the 4th Schedule to the Tripura Agriculture Service Rules, 1989 as amended by the Tripura Agriculture Service (3rd Amendment) Rules, 2012. Further, it has been urged to quash and cancel all actions taken by the respondents in pursuant to the provisions of Rule 9(b) of the Tripura Agriculture Service (2nd amendment) Rules, 1997, now omitted, and to comply the provisions of Tripura Scheduled Castes and Scheduled Tribes Reservation Act, 1991 as well as Rule 10 and 27 of the Tripura Agriculture Service Rules, 1989 in respect of filling up of 234 posts in the grade IV of THAS (Tripura Higher Agriculture Service) by promotion. Even a writ of prohibition has been urged to restrict the respondents from taking further action, in terms of the challenged provisions.
Briefly stated, the petitioners‟ case is that in terms of the Tripura Agricultural Service (2nd Amendment) Rules, 1997 the petitioners were appointed in the cadre of Tripura Agricultural Field Service Grade-I and at the time of filing of the writ petition, they had completed 12-14 years of service in the said post to the entire satisfaction of the authorities. According to the petitioners, Rule 9(3) provides that on completion of seven years of regular service in the post of Agriculture Officer borne in the Grade-I of Tripura Agricultural Field Service, they will be promoted to the next post of Grade-IV of Tripura Higher Agricultural Service [Group-A Gazetted].
As provided by Rule-5 of the Principal Rules the appointment to the Grade-IV of the said service would be made by promotion from the officers in the Grade-V having not less than 7 years‟ regular service in that grade on the basis of merit with due regard to the seniority as per recommendation of the selection committee failing that by direct recruitment on the recommendation of the Tripura Public Service Commission (TPSC in short) or on deputation. Rule 27 of the said Rules provides further that the appointment to the service made by direct recruitment or promotion shall be subject to the provisions regarding the special representation in the service for the Scheduled Castes and Scheduled Tribes made by the Government from time to time. The petitioners however have not expressed any grievance against Rule 9 of the Principal Rules as substituted. The said rules provides as under:
"9 Initial Constitution of Service:-
The existing incumbents possessing a degree in Agriculture/Horticulture and holding any of the posts in any grade specified in the first schedule on regular basis irrespective of whether permanent or temporary or officiating or appointed on ad hoc basis shall be eligible for appointment to the respective grade of service on the basis of seniority subject grade of service on the basis of seniority subject to rejection of unfit as per recommendation of the Selection Committee.
An officer having B.Sc (Agri)/B.Sc (Horti) degree or equivalent qualification who is already in service under the government of Tripura in the equivalent rank of different grade of this service in a department other than Agriculture department shall be eligible for absorption in the appropriate grade of the service provided he/she exercises an option with prior consent of his/her employer to come over the service within a period of 6 (six) months from the date of publication of these Rules and their cases shall be decided as per recommendation of the selection committee. Their interse-seniority in the cadre shall be determined as per principles for determination of seniority."
By the second amendment rules, the Tripura Agricultural Service was segmented in two categories namely, namely Tripura Higher Agriculture Service (THAS) and Tripura Agriculture Field Service (TAFS). THAS was provided with 4 grades namely Grade-I, Grade-II, Grade-III and Grade-IV whereas TAFS was provided with three grades namely Grade-I, Grade-II and Grade-III. All grades of THAS are borne in the Group-A Gazetted. Grade-I of TAFS is borne in Group-B Gazetted and those who are in Grade-II and Grade-III of TAFS are Non-Gazetted and the posts in Grade-I of TAFS are the feeder posts for promotion to Grade-IV of THAS and again, posts of Grade-IV of THAS are feeder posts for Grade-III of THAS and so on.
By dint of the second amendment particularly in view of Rule-5 of the Second Amendment, according to the petitioners, it would be apparent that the appointment to THAS, Grade-IV would be made by promotion from the officers in Grade-I of TAFS having minimum degree of B.Sc (Agri)/B.Sc (Horti) having not less than seven years of regular service in that grade on the basis of merit with due regard to seniority. For that purpose, the recommendation of the selection committee would be of paramount importance. If for any reason no person can be promoted and the vacancies remained not filled up, in that event those vacancies can be filled up by direct recruitment or by deputation subject to the provisions of the reservation policy. For purpose of reference the amended Rule 9(3) of the said rules are extracted hereunder:
"9 (3): The existing officers having minimum degree of B.Sc. (Ari)/B.Sc (Horti) in the T.A.S Gr.-V who have completed 7 (seven) years of regular service in the posts and grades on or before commencement of these rules shall be allowed to move to Grade-IV of THAS, and the remaining officers of TAS Grade-IV Grade-V appointed on or before 31st December, 1993 shall also move to the Grade-IV of THAS gradually on completion of their 7 (seven) years of service in the posts/grades.
The posts/Grades from which the officers move, shall be deemed to have been converted automatically into higher posts/Grades and the officers shall acquire the designation of higher posts/Grades.
NOTE : 1) The existing TAS Gr.-V Officer(s) who are allowed to move alongwith the post(s) to the THAS Grade-IV vide sub-rule Grade-IV vide sub-rule 9(3) the said post(s) vacated on promotion of the said officer(s) to the next higher Grade will come under TAFS Gr. - I automatically.
2) Those Officers of Tripura Agriculture Service Grade-V who have not completed seven years service on the date of commencement of these rules shall continue to hold the posts/grades to which they were appointed till they move to THAS Grade-IV".
Mr. Datta, learned counsel appearing for the petitioners has submitted that in terms of the amended provision of Rule 9(3) as carried out by virtue of the second amendment rules, new notes have been appended below the schedule. The petitioners‟ grievance is however against the Note No.1 which reads as under:
"NOTE, The existing 137 officers of TAS Grade-V will move to THAS Grade-IV on the day of Notification of these Rules and remaining 61 Officers of TAS Grade-V shall also move to THAS Grade-IV on the day of completion of their 7 (seven) years of service vide Sub- Rule 9(3) of these Rules. Thus 198 existing TAS Grade-V officers will move to THAS Grade-IV out of the present cadre strength of 405 along with their post. Remaining posts of TAS Grade - V i.e. 368-198=170 has been shown at present in the cadre strength for direct recruitment of TAFS Grade-I. But the actual cadre strength for direct recruitment in TAFS Grade-I will be 405 including leave reserve etc. Since the existing TAS Gr.V officers(s) who are allowed to move along with the posts to the THAS Grade-IV vide Sub-rule 9(3), the said post(s) vacated on promotion of the said officers in the next higher grade will come under TAFS Grade-I automatically".
Following that rule 9(3) of the rules as amended, the notification under No.F.2(57)-Agri(Estt)/97-98/13285-674 dated 29.08.1997 [Annexure-1 to the writ petition] had been issued by appointing 137 Agricultural Officer/Fodder Officer of T.A.S. Grade- V (Group-B Gazetted) to Grade-IV of THAS, (Group-A Gazetted) in the posts of Assistant Director and equivalent and more 61 (sixty one) Agricultural Officers/ Fodder Officer of T.A.S. Grade-V (Group-B Gazetted) were thereafter appointed to the Grade-IV of the THAS (Group-A Gazetted) in the posts of Assistant Director and equivalent in the phased manner in three spells on 28.09.1998, 10.12.1999 and lastly on 18.11.2000. The state- respondents promoted as many as 198 officers from different grades, according to the petitioners, in gross violation of the Reservation Policy as enunciated in the said Act and Rules. While making those appointments by the promotion, the mandate of the Rule 27 of the Service Rules were grossly violated by causing breach of the said policy of the State Government. The petitioners have filed representations but those representations did not yield in any positive result and finally they have approached this court for quashing the Note-1, which is extracted above and for issuing an Mandamus directing the respondents to give them the promotion to the Grade-IV of THAS immediately after their completion of seven years of service in terms of the Rule 9(3), else there would be hostile and serious discrimination for operation of the said Rule 9(3) of the Principal Rules as amended.
Mr. Datta, learned counsel has in his anxiety to show how the respondents acted illegally pointed out that by the Tripura Agricultural Services (3rd Amendment) Rules, 2012 which was notified on 05.01.2013, the sub-rule 3 along with Foot Note 1 & 2 has been amended. As such this Note-1 does not have any legal ratification to exist in the statute. It would be appropriate at this juncture to refer to the amended provision of the schedule which has been provided as the Amendment Rules (3) of the Tripura Agricultural Service (3rd Amendment) Rules, 2012 which provides that the existing First Schedule appended to the Principal Rules, shall be substituted by the First Schedule‟ "under Rule 4 (i) of the Principal Rules as amended". In the said schedule it is apparent that the Note-1 along with other two Notes are existing. Therefore, the Note-1 has been substituted by the Tripura Agricultural Service (3rd Amendment) Rules, 2012.
Mr. D. K. Biswas, learned counsel appearing for the respondents has submitted that the action taken in respect of the existing officers under Rule 9(3) in no way would benefit the petitioners inasmuch as when the notification dated 29.08.1997 was issued even the petitioners were not borne in any grade of the service. That apart, when that notification was issued they did not have the eligibility even for consideration and as such they do not have any locus standi to urge before this court for issuing the Certiorari for any action of the respondents.
Having extended an anxious consideration to the challenge and appreciated the submission made by the learned counsel appearing for the parties, this court is of the view that Rules as incorporated by of the Tripura Agricultural Services (2nd Amendment) Rules, 1997 is a transitional rule in the nature of adjusting the existing officers in the emerged arrangement of the grades. Rule 9(3) has been carefully drafted. It says that the said rule is only applicable to the existing officers‟. Rule 9(3) provides further that the existing officers having minimum degree of B.Sc. (Agri)/B. Sc. (Horti) in T.A.S. Grade-V who have completed seven years of regular service in the posts and grades on or before commencement of these rules meaning the 2nd Amendment Rules shall be allowed to move to Grade-IV of THAS and the remaining officers of T.A.S. Grade-V appointed on or before 31.12.1993 shall also move to the Grade-IV of THAS gradually on completion of their 7 (seven) years of service in the posts or grades. It further provides that the posts/grades from which the officers move, shall be deemed to have been converted automatically into higher posts or grades and the officers shall acquire the designation of higher posts or grades. It has been provided by a note below hereunder:
NOTE: 1) The existing T.A.S. Grade-V Officer(s) who are allowed to move along with the post(s) to the THAS Grade-IV by operation of the sub-rule 9(3) the said post(s) vacated on promotion of the said Officer(s) to the next higher Grade will come under TAFS Grade-I automatically.
2) Those officers of Tripura Agriculture Service Grade-V who have not completed seven years service on the date of commencement of these rules shall continue to hold the posts/grades to which they were appointed till they move to THAS Grade-IV in the said rule 9(3).
This court does not find any illegality in those provision, supra, even there is no position of being in contrast to the reservation rules. It provides for adjustment in respect of the existing employees whether they belonged to reserved category or unreserved category, the reservation was not under the consideration for obvious reason their appointments were made in observance of the reservation policy and in bloc they have been adjusted in the new arrangement without affecting anybody‟s existing right or even the future rights as emerged from the reservation policy. Hence, we do not find any merit in this case. Moreover, it has been reported by Mr. R. Datta, learned counsel that the petitioners are already promoted in terms of the amendment rules. It is needless to repeat that it is not a matter of right when the promotion is subject to the merit-cum-seniority and the recommendation from the competent selection committee.
In the result, the writ petition stands dismissed.
However, in the circumstances there shall be no order as to costs.