Susanta Kumar Ray vs State Of Tripura And Ors

Heard Mr. P. Roy Barman, learned counsel appearing for the petitioner as well as Mr. M. Debbarma, learned Addl. Government Advocate appearing for the State-respondents and Mr. Raju Datta, learned standing counsel appearing for the Tripura Public Service Commission.

By means of filing the present writ petition, the petitioner has prayed for consideration of his promotion to the post of Assistant Engineer from the post of Junior Engineer with effect from the date on which his juniors were promoted to the post of Assistant Engineer as he was deprived of.

The case of the petitioner is that while he was working under the respondents as Junior Engineer Grade-I, he was entitled to be promoted to the post of Assistant Engineer having possessed all required qualifications as per the recruitment rules. A final common seniority list of Junior Engineers (degree and diploma holders) of Rural Development Department was published vide Memorandum dated 09.11.2006 issued by the Under Secretary to the Government of Tripura, Rural Development Department. In the said common seniority list, the name of the petitioner appeared at Sl.No.2. The State-respondents had undertaken the exercise of filling up the post of Assistant Engineers and an attempt was made to fill up as many as 9 (nine) posts of Assistant Engineers. Accordingly, a DPC was constituted by the respondents for consideration of promotion of the eligible candidates holding the post of Junior Engineers, Grade-I. The name of the petitioner along with other eligible candidates was furnished by the R.D. Department to the Group-A DPC for consideration of promotion for the post of Assistant Engineer. But the grievance of the petitioner is that the DPC without following the guidelines acted most arbitrarily, unreasonably, irregularly and whimsically excluded the petitioner from the select panel and juniors of the petitioner who have been impleaded as respondent Nos. 8 to 12 were considered for promotion to the said post of Assistant Engineer under the Rural Development Department. Thus, the petitioner was denied to be considered for promotion to the post of Assistant Engineer, however, the juniors were given promotion to the post of Assistant Engineer by notification dated 31st March, 2007 [Annexure-P/8 to the writ petition]. Having deprived of and discriminated of being considered for such promotion to the post of Assistant Engineer, the petitioner has filed the present writ petition praying for a direction upon the respondents to consider his promotion to the post of Assistant Engineer from the date the private respondents were promoted to the said post.

Mr. Roy Barman, learned counsel appearing for the petitioner has submitted that the benchmark for promotion to the post of Assistant Engineer is stipulated at para 2.3.1(a) of the Memorandum dated 10th June, 2004 issued by the Commissioner and Secretary to the Government of Tripura. According to him, the benchmark for promotion to the post of Assistant Engineer from the post of Junior Engineer is "good".

On the other hand, Mr. M. Debbarma, learned Addl. Government Advocate and Mr. Raju Datta, learned standing counsel appearing for the Tripura Public Service Commission have submitted that the benchmark fixed for promotion to the post of Assistant Engineer from the post of Junior Engineer is "very good". The petitioner at the relevant point of time was graded as "good" and for that reason he was found unfit by the DPC as constituted by the State-respondents.

Having considered the rival submissions, according to this Court the main controversy arises in the present petition is that whether the benchmark for promotion to the post of Assistant Engineer from the post of Junior Engineer is "good" or "very good".

I have perused the Memorandum dated 10th June, 2004, which, for convenience, is reproduced hereunder:

"GOVERNMENT OF TRIPURA GENERAL ADMINISTRATION (P&T) DEPARTMENT GOVERNMENT SECRETARIAT AGARTALA No.F.11(1)-GA(P&T)/72

Dated Agartala, the 10th June,2004

MEMORANDUM

Sub: adoption of revised procedure to be observed by the Departmental Promotion committee-modification thereof.

The undersigned is directed to refer to Memo No.F.33(1)-GA/92 dated the 23rd March, 1992 of the then Appointment and services Department, now renamed as the "General Administration (Personnel & Training) Department" of the State Government and to state that the contents of the said Memo along with its amendments made from time to time shall stand modified as follows:-

(1) In para 2.1.1, under the heading "Selection method"-

Below "No. of officers to be considered"

For the figures and words- "3 times the number of vacancies" the figures and words "2 times the number of vacancies plus four" shall be substituted.

(2) In para 2.3.1, for the sub-para (i) the following shall be substituted--, namely-

"(i) Having regard to the levels of the posts to which promotions are to be made, the nature and importance of duties attached to the posts, a bench mark grade would be determined for each category of posts for which promotions are to be made by selection method. The "Bench Mark" will be as follows:-

(a) For promotion to all Group-C, Group-B and Group-A posts or services (excluding induction to Group-A posts) up to and excluding the level of posts carrying the scale of pay of Rs. 12000-18400/- the "Bench Mark" will be "Good".

(b) For induction to all Group-A posts or services from lower Groups the "Bench Mark" will be "very Good"

(c) For all posts or services which carry the scale of pay of Rs.12000-18400/- and above the "Bench Mark" will be "Very Good".

The DPC instead of categorizing the officers in the zone of consideration as "Good", "Very Good" or "Outstanding" shall, with reference to their "bench mark", categorize and grade them as "fit" or "unfit". The names only of those who are graded as "fit" shall find place in the select panel in the order of their inter-se seniority in the feeder grade and those graded as "unfit" shall not be included in the select panel......."

I have given my conscious thought to the sub-para (i) (a), (i) (b) and (i)(c) of para 2.3.1 of Clause (2) of the said Memorandum dated 10th June, 2004. A cumulative reading of those sub-paras, it would reveal that for promotion by way of induction to the post of Group-A having pay scale of Rs.12,000-18,400/-from lower groups, bench mark is "very good". In sub-para (i)(a), it is made clear that for promotion to Group-A posts or services which carry the scale of pay upto or below Rs.12,000-18,400/- the bench mark would have to be "good", which means that even if a person holding Group-A post, and if the scale of pay is upto Rs.12000/- or less than Rs.12000-18400/-, in that case, the bench mark would be "good". Furthermore, if an officer is promoted to Group-A post by way of induction, then, the Bench mark would be "Very Good".

In the instant case, undisputedly the post of Assistant Engineer is a Group-A post. It is also admitted fact that the scale of pay to the post of Assistant Engineer is determined at Rs.10,000-15,100/-. Mr. Roy Barman, learned counsel appearing for the petitioner further has made it clear during hearing that subsequently the petitioner was promoted to the post of Assistant Engineer in the scale of pay of Rs.10,000-15,100/- by notification dated 08.01.2008 [Annexure-P/13 to the writ petition] on the basis of his bench mark "good". The said submission of the learned counsel for the petitioner has been admitted by both the learned counsel appearing for the State-respondents as well as the Tripura Public Service Commission.

A plain reading of the above sub-paras under Clause 2 of Memorandum dated 10th June, 2004 makes it clear that DPC while exercising the process of promotion, at first phase, would determine the pay scale determined for a particular type of post within Group-A to which the officer is proposed to be promoted for the reason that all categories of Group-A posts or services do not carry similar and identical pay scale.

In the case in hand, it becomes apparent that the DPC while recommending the names of Junior Engineers from Group-B to Group-A posts had failed to do such exercise, and thus, misconstrued and misread the language encrypted in sub-para (i)(a)(b) and (c) of para 2.3.1 of Clause 2 of Memorandum dated 10th June, 2004.

Situated thus, I have no other alternative but to allow this writ petition. Accordingly, the State-respondents are directed to consider the promotion of the petitioner w.e.f. 31st March, 2007 [Annexure P/8 to the writ petition] the date on which the private respondents juniors to the petitioner were promoted to the post of Assistant Engineer along with all consequential service benefits. However, it is made clear that the pay of the petitioner shall be fixed notionally for the purpose of computing the salary from the date he would have been promoted to Assistant Engineer along with his juniors. He shall not be entitled to back salaries for the period he did not work as Assistant Engineer. The entire exercise shall be completed within a period of three months from the date the petitioner shall furnish the copy of this order to the concerned authority.

With the aforesaid terms, the writ petition is allowed and disposed of accordingly.