Sri Pritish Bhattacharjee & 26 ... vs The State Of Tripura & 4 Ors
2021 Latest Caselaw 803 Tri

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                    HIGH COURT OF TRIPURA
                          AGARTALA
                       WP(C) 582/2021
Sri Pritish Bhattacharjee & 26 others                     ----Petitioner(s)
                          Versus
The State of Tripura & 4 ors.                           ----Respondent(s)

For Petitioner(s)         :
                        Mr. P. Roy Barman, Sr. Advocate
                        Mr. S. Bhattacharjee, Advocate
                        Mr. K. Nath, Advocate
For Respondent(s)  :    Mr. SS Dey, Advocate General
                        Mr. Raju Datta, Advocate
         HON'BLE MR. JUSTICE ARINDAM LODH
                       Order
27/08/2021

By way of filing the present writ petition, all the petitioners who are serving as Inspectors of police and being eligible for promotion to the post of TPS Grade II have urged this court to direct the State-respondents to invoke the age relaxation Rules, as provided under Rule 14(4) of Tripura Police Services Rules, 1967 (for short, Rules 1967), in terms of Rule 34 of TPS Rules, 1967 for promotion to the said post from the post of Inspector of police, under Home Department, Government of Tripura.

From the statements made in the writ petition and as submitted by Mr. P. Roy Barman, learned senior counsel assisted by Mr. S. Bhattacharjee, learned counsel for the petitioners, it is surfaced that the State-respondents have recently initiated the process of promotion as Inspector from the post of TPS, Grade-II on adhoc basis and for this purpose, the State-respondents under notification dated 18th August, 2021 constituted a selection committee i.e. DPC (Annexure 5 to the writ petition) consisting of six Officers for consideration of promotion to the eligible Inspectors from the feeder post of Inspector of Police/Subedar of TSR battalions.

Prior to formation of said selection committee under notification dated 8th July, 2021, the State-respondents i.e. Deputy Secretary to the

Government of Tripura issued a notification dated 22 nd June, 2021 (Annexure 3 to the writ petition) wherein it was decided that:-

"5. Whereas, in order to augment efficiency of State administrations, the State Government has now decided to fill up posts lying vacant on ad hoc basis, pending final determination of appeal sub-judice before the Hon'ble Supreme Court of India; thereby promoting eligible State Government employees on ad hoc basis in the interest of public service by following the process contemplated under the different recruitment rules regulating promotion criteria and procedures for such posts;

The petitioners herein being eligible for promotion to the post of TPS Grade II, but crossed the prescribed age of 55 years on 1 st day of January, 2021, submitted representations to the Director General of Police, Government of Tripura on 07.07.2021 to consider their promotion to the rank of TPS Grade II, relaxing the age bar as prescribed in Rule 14(4) of the Rules, 1967. It is further stated that after 2013, the government of Tripura could not take any exercise for promotion to TPS Grade-II due to interim order passed by the Hon'ble Supreme Court. The Director General of Police had duly considered the said representations and by his communication dated 8th July, 2021 (Annexure 4 to the writ petition) addressed to the Principle Secretary, General Administration (P&T), Government of Tripura, Agartala, proposed to consider one-time relaxation of age criteria, as specified in Rule 14 (4) of the TPS (14 th amendment) Rules, 1967. Sub-rule (4) of Rule 14 of TPS Rules, 1967 may be extracted here-in-below:

"The committee shall not consider the cases of Officers in the feeder posts who have attained the age of 55 years on the 1st day of January of the year in which the Committee meets".

The Director General of Police while making the proposal for relaxation of age to the Government of Tripura, had observed thus:

"4. It is seen that, as on 01/01/2021, 33 (thirty-three) Inspectors of Police who otherwise meet all the eligibility criteria had become 55 years or older, Annexure-A provides the entire list of these officers.

5. It may be noted that all the officers have rendered long years of service, including service for at least 5 years in the rank of Inspector. Due to maintenance of 'status quo' in matters of promotion in compliance with the interim order dated 27.07.2015 passed by the Hon'ble Supreme Court of India, these officers had not considered for promotion to the next higher rank since last promotion in the rank of TPS Gr-II on 05/06/2013

6. At this stage when promotions are being resumed, depriving the above mentioned 33 Inspectors of Police from being considered for promotion to the next higher rank in TPS Gr-II for no fault of any one individual, will be deemed unfair to the legitimate career expectations of these officers.

7. In view of the above, it is proposed that, in exercise of Rule 34 "Power to Relax" of The TPS Rules, 1967, the competent authority may kindly relax Rule 14(4) of the TPS Rules, 1967, to allow the DPC to be constituted for the post of TPS Gr-II to consider cases of all officers irrespective of their current age, as a one-time measure."

On consideration of the said proposal of Director General of Police, the State-respondents through Under-Secretary, Government of Tripura by communication dated 18th August, 2021 (Annexure 6 to the writ petition) informed him that-

"5.(v) The department may not ordinarily send the names of those Officers in the feeder post who have already attained the age of 55 years on the 1st day of January, 2021 and who are not graduate".

Thus, it is apparent that the State- government was not inclined to consider the proposal made by the Director General of Police, Government of Tripura for relaxation of age.

Mr. Roy Barman, learned senior counsel has contended that it was the fault of the State-government not to initiate the process of promotion or filling up the posts of TPS Grade-II from the feeder post of eligible Inspectors of Police/Subedars of TSR battalion and, for that reason, the petitioners would not have to be said to be at fault in any manner whatsoever. Mr. Roy Barman, learned senior counsel showing the notification dated 9th March, 2010 (Annexure 8 to the writ petition) has tried to justify that the State-government had earlier invoked the relaxation clause, as contemplated under Rule 34 of the Rules, 1967,

giving age relaxation for promotion of Inspectors of Police/Subedars of TSR battalion to the post of TPS Grade II.

Resisting the contentions of Mr. Roy Barman, learned senior counsel appearing on behalf of the petitioners, Mr. SS Dey, learned Advocate General appearing for the State-respondents has submitted that none had prevented the petitioners to ask for promotion when their respective promotions became due. Contending further, learned Advocate General, has tried to persuade this court that the Hon'ble Supreme Court never stayed the operation of the impugned judgment for which the promotions were said to be withheld by the State-government. Learned Advocate General further emphasized that the petitioners never approached the appropriate authority i.e. the State-government espousing their grievances, and by the way no representations had been received by the State-government from the petitioners because of which the present writ petition filed by the petitioners appears to be pre-mature.

I have duly considered the rival contentions of the learned counsel appearing for the parties to the lis.

This court while appreciating the submission of learned Advocate General posed a question as to whether the petitioners would submit representations to the competent authority of the State-government raising their grievances. In response, learned Advocate General has informed this court that the petitioners may submit representations to the State-government.

I may close the writ petition at this juncture, but, I cannot restrain myself from making some observations having regard to the submissions advanced by learned Advocate General appearing for the State- respondents.

Firstly, it is observed that promotion is not a matter of right. It is a right to be considered by the employer. In other words, as a matter of

right no employee can claim promotion as his right. He can only agitate his grievance, if, in an appropriate case, he is not considered for promotion on the ground of infringement of his right to be considered for promotion as enshrined under Article 14 and 16 of the Constitution of India despite his eligibility. It is an accepted legal principle that the right of eligible employees to be considered for promotion is virtually a fundamental right guaranteed under Article 16 of Constitution of India. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution.

In view of this, the submissions as made by learned Advocate General that the petitioners could have claimed promotion on their due dates is hereby repelled.

Secondly, to deal with the submission of learned Advocate General, I have noticed the notification dated 22nd June, 2021 issued by Government of Tripura wherefrom it crystallize that due to 'status-quo' order dated 27.07.2015 passed by Hon'ble Supreme Court as an interim measure, the State-government was not at all inclined to initiate any process of promotion for its employees. For convenience, paragraph 3 and 4 of the notification dated 22nd June, 2021 (Annexure 3 to the writ petition) may be quoted, in extenso:-

"3. Whereas, the Hon'ble Supreme Court of India while admitting the said appeal have been pleased to inter alia pass the following interim order dated 27.07.2015;

"In the meanwhile the parties will maintain the 'status quo'. However, the data of collating the information as postulated in Nagaraj's case may continue".

AND

4. Whereas, promotion in the services of the State Government had remained withheld since 01/04/2017 whereby quite a large number of posts to be filled up on promotion had to remain vacant thereby causing serious hindrance in the day-to-day discharge of administration of the State-Government to the detriment of public interest;"

A bare perusal of the above observation in the notification dated 22nd June, 2021, it has become crystal clear that all promotions in various departments under the State-government were made stalled since 01.04.2017 only because of the order of 'status-quo' order dated 27.07.2015 passed by the Hon'ble Supreme Court as an interim measure.

In the light of above, the submission of learned Advocate General that there was no stay order passed by Hon'ble Supreme Court, according to this court, appears to be insignificant for the reason that it was only due to the order of Supreme Court to maintain 'status-quo', the promotions in the services of the State-government had remained withheld.

The word 'status-quo' means " the situation that currently exists". It is the government who interpreted the order of 'status-quo' as passed by the Supreme Court in its order dated 27.07.2015 and, ultimately in view of this order, the State-government at their own wisdom abstained from initiating any process of promotion in any of the posts from the feeder posts in all the departments under it. In my opinion, for such decision or action of the State-government, the petitioners cannot be blamed and they should be held responsible for the inaction of the government in this respect for the last several years.

In furtherance thereof, in my considered view, the reasoning as given by the state's Director General of Police in the matter of promotion of his officers should be given due weightage by the government because such reasoning appears to be in consistent with the decision of the government where it desired to initiate the exercise of promotions in the vacant posts in order to "augment efficiency of state administrations". In the instant case, ultimately, the DGP being the head of the organization is the best person to decide who would be the best officers to provide an efficient administration in the interest of public. From his communication dated 08.07.2021 it is manifested that he for obvious reasons wanted to

fill up the posts of TPS Grade - II from the senior most officers and the DGP did not want to deprive those senior and competent officers who rendered their sincere and dedicated service in the interest of public. The DGP also observed that it would be deemed unfair to the legitimate career expectations of these officers for no fault of them.

For the foregoing reasons, I am of the prima facie view that the petitioners were not at fault in any manner to raise their claim for consideration of promotion in the post of TPS, Grade-II and they cannot be held responsible for the stalemate created by the government itself. On conjoint reading of paragraphs 3 and 4 of the notification dated 22 nd June, 2021, it manifests that 'status quo' order passed by the Supreme and consequential government decision stood in the way of the petitioners' chances of promotion from being fairly considered when it was due for such consideration and I re-iterate that delay in taking the exercise of such promotion made them ineligible for such consideration which fact the respondents ought to have kept in mind while rejecting the proposal of DGP to give one-time relaxation of age invoking Rule 34 of TPS Rules, 1967.

However, considering the submission of learned Advocate General that the petitioners should make representations to the Government of Tripura, I direct the petitioners to submit a common representation to the Government of Tripura, particularly, the Secretary, General Administration (P&T) and the Secretary, Home Department, Government of Tripura, to consider their promotion in the post of TPS Grade-II invoking Rule 34 of the Rules, 1967 for relaxation of age of 55 years, one-time measure, as contemplated under Rule 14(4) of the Rules, 1967. It is further directed that the petitioners shall submit representation before the authorities concerned of the government within a period of 4 (four) days from today. The competent authorities of the government shall

consider the representation if filed by the petitioners within the next 7 (seven) days and dispose of the same with speaking order. Till then, the State-respondents shall not proceed further with the process of promotion, as initiated under notification dated 18th August, 2021. It is made clear that this order will be confined only to the petitioners of this writ petition.

Needless to say, that the petitioners are at liberty to approach this court, if they are aggrieved of the response of the respondents regarding their representation.

Accordingly, the instant writ petition filed by the petitioners stand disposed in the light of the above observations and directions.

Pending application(s), if any, also stands disposed of.

JUDGE

Saikat