The State Of Tripura And Ors vs Sri Pradip Kumar Debbarma
2021 Latest Caselaw 771 Tri

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                       HIGH COURT OF TRIPURA
                                 AGARTALA
                                WA No.160/2021
The State of Tripura and Ors.
                                                        ............ Appellant(s).
             - Vs. -
Sri Pradip Kumar Debbarma.
                                                      ............ Respondent(s).

For Appellant(s) : Mr. P K Dhar, Sr. Govt. Advocate, Mrs. Sarama Deb, Advocate.

For Respondent(s) : Mr. S M Chakraborty, Sr. Advocate, Ms. P Chakraborty, Advocate.

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE JUSTICE MR. S G CHATTOPADHYAY

_O_R_D_E_ R_

17/8/2021 (Akil Kureshi, CJ).

This appeal is filed by the State Government to challenge the

judgment of the learned Single Judge, dated 29th January 2021, passed in

WP(C) No.437/2017. The respondent herein original petitioner had filed

the said petition with a prayer that he should be promoted to the post of

Sub-Divisional Controller considering his total length of service and

seniority and that such promotion should be granted with retrospective

effect from the year 2010.

Briefly stated, the facts are that the petitioner was appointed as a

Junior Store Keeper in the State service on 30th April 1990 in the Page - 2 of 7

Directorate of Food and Civil Supplies Department. Under a

memorandum, dated 20th April 1998, a charge sheet was framed against

the petitioner. The disciplinary authority held that the charges were

proved. Appellate authority confirmed the decision. This resulted into

imposition of penalty on the petitioner in the year 2003 by which a

recovery of an amount of Rs.2,44,238/- was ordered against the petitioner.

In the year 2007, persons junior to the petitioner in his cadre of

Store Keeper were promoted to the post of Inspector(Food). The petitioner

was not promoted. He, therefore, filed WP(C) No.276/2012 which was

decided by the learned Single Judge by a judgment dated 27th January

2016. The respondents were directed to convene a review Departmental

Promotion Committee(DPC) and consider the case of the petitioner as on

the due date when his juniors were promoted. This exercise led to the

petitioner's promotion as Food Inspector w.e.f. 3rd January 2007. On the

basis of his retrospective promotion and improved seniority position, the

petitioner claimed further promotion to the post of Sub-Divisional

Controller which was not granted to him by the department. The

petitioner, therefore, filed the present petition with a prayer for grant of

such promotion with retrospective effect from the year 2010.

The department opposed the petition pointing out that no person

junior to the petitioner in his category of Scheduled Tribe(ST) has been Page - 3 of 7

promoted to the said post. Two persons who were junior to the petitioner

and who were promoted both belonged to Scheduled Caste(SC) category

and were promoted on their reserved posts. Ignoring these averments of

the department, the learned Single Judge allowed the writ petition making

following observations :

         "      ....................

         [9]    In my opinion, this cannot be the ground to deprive a person

for consideration of his right to be promoted and more particularly when his junior was promoted. Further, respondents are duty bound to enforce the order of the Court.

[10] Having held so, the respondents are directed to enforce the order of this Court as reproduced in para-6 of this judgment. Consequently, the petitioner is entitled to be considered for promotion to the next higher post/posts. Needless to say, that the petitioner is entitled to get all pecuniary benefits notionally. In furtherance thereof, the petitioner would be entitled to get benefit of next promotion as per Recruitment Rules from the date when his juniors were promoted i.e. with effect from 2010. If there is no vacancy at present, the respondents shall create supernumerary post for a period which may be required to adjust new situation. It is made clear that entire exercise shall be completed within 2(two) months from the date of receipt of the copy of this order."

This judgment, the State has challenged in the present appeal.

Learned counsel Mrs. Sarama Deb for the State, drew our

attention to a recent judgment, dated 26th July 2021, passed in case of Page - 4 of 7

State of Tripura and Ors. Vs. Sri Monoranjan Majumder in WA

No.140/2021 filed by the State Government in which under similar

circumstances the judgment of the learned Single Judge was set aside.

Learned senior counsel Mr. S M Chakraborty on the other hand,

submitted that the facts of the present case are different from that in case

of Sri Monoranjan Majumder(supra). He pointed out that in the said

case, the petitioner was seeking promotion from the post of Junior Store

Keeper to Food Inspector and thereafter further promotion. He, however,

could not controvert the statement made by the State authorities in the

reply to the writ petition stating that no person junior to the petitioner in

the category of ST has been promoted to the post of Controller.

The factual situation therefore which would emerge is that the

petitioner may have a legitimate right to seek consideration for promotion

to the post of Sub-Divisional Controller on the basis of his improved

seniority upon his retrospective promotion to the post of Food Inspector,

such consideration must be in its turn. This expression "consideration for

promotion in his turn" in service jurisprudence implies that a Government

servant would have a right to be considered for promotion when a

vacancy in the promotional cadre arises and the turn of the Government

employee has ripened considering his seniority. If the department Page - 5 of 7

considers any person junior to the employee for such promotion ignoring

the claim of the Government servant though he is otherwise qualified, it

would a breach of his right. On the other hand, if there is no post available

for promotion and no person junior to the Government servant has been

considered for promotion, the Government servant has no vested right for

being promoted or even for being considered for promotion.

In case of Sri Monoranjan Majumder(supra) while reversing

the decision of the learned Single Judge which was also premised on

similar observations as are made in the impugned judgment and which we

have reproduced above, the Division Bench had made following

observations :

"9. In our opinion, the learned Single Judge committed a serious error in issuing the directions noted above. As noted, the petitioner was facing departmental inquiry which resulted into imposition of the order of penalty by the disciplinary authority and confirmation of such order by the appellate authority. It is true that these orders were set aside by the learned Single Judge and the department had to restore the original position of the petitioner prior to initiation of the departmental proceedings. This would include the right of the petitioner to be considered for promotion from due date in his turn. The reference to due date and in his turn must be in the background of availability of vacancy and the petitioner's seniority position. In other words, if any person junior to the petitioner is considered for promotion, the petitioner must be so considered from such date. If he is found suitable for promotion, he must be granted it. However, if no Page - 6 of 7

person junior to the petitioner has been considered, the petitioner would not get an automatic right of promotion.

10. It is in this respect the averment of the Government that no person junior to the petitioner was promoted in the interregnum becomes relevant. It is pointed out that Bhuttu Debbarma belonged to ST category whereas the petitioner belongs to SC category. The petitioner has not disputed this factual position. If Bhuttu Debbarma, therefore, was promoted in a reserved seat for ST candidate, surely the petitioner cannot seek consideration for promotion simply because Bhuttu Debbarma was junior to him.

11. The petitioner's reference to a case of Dibyendu Das in the rejoinder would be of no avail. The petitioner has not averred that Dibyendu Das was his junior. He has only referred to the case of Dibyendu Das in the rejoinder in the context of said Dibyendu Das being granted two promotions with retrospective effect. Learned Government counsel submitted that Dibyendu Das was appointed as a Junior Storekeeper on 09.10.1991 whereas petitioner was appointed to the same post on 17.12.1997. It would have been desirable had the Government filed a reply to the rejoinder bringing the seniority list on record or at least so stated in the appeal memo. However, we do not discard this position since the petitioner himself has not asserted in the rejoinder that Dibyendu Das was his junior.

12. In view of this situation, no direction for promotion to the petitioner to the next higher post of Food Inspector could have been issued. The learned Single Judge, in fact, granted sweeping directions for promotion to the petitioner to the post of Sub- Divisional Controller which is three promotional posts away from the post of Junior Storekeeper. Without examination of promotion of juniors of the petitioner to the successive promotional posts and without examination of the petitioner's suitability for such Page - 7 of 7

promotions in any case such directions could not have been issued.

13. In the result, impugned judgment of the learned Single Judge is set aside. Petition is dismissed. Appeal is allowed and disposed of. Pending application(s), if any, also stands disposed of."

In view of this discussion, the decision of the learned Single

Judge under challenge cannot be sustained. The same is reversed. Writ

appeal is allowed and disposed of. Pending application(s), if any, also

stands disposed of.

   ( S G CHATTOPADHYAY, J )                          ( AKIL KURESHI, CJ )




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