Shri Kedar Sing vs The State Of Tripura
2021 Latest Caselaw 139 Tri

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                     HIGH COURT OF TRIPURA
                           AGARTALA

                               W.A. No.20/2018
1. Shri Kedar Sing
S/O Late Sundar Singh Panwar, Resident of Silyan,
PO and PS Uttar Kashi, District- Uttar Kashi, Uttaranchal.

2.Shri Tarun Kumar Singh
S/O Late Surendra Prasad Singh, Resident of Village and
PO- Ponihasanpur, PS- Prataptaend, District- Vaishali, Bihar.

3.Sri Rajesh Kumar Mahato
S/O Late Chandradev Mahato, Resident of Village, PO and PS- Adityapur,
District- Jamshedpur, Jharkhand.
                                                       .....Appellant(s)

                            Versus

1.The State Of Tripura,
Represented by the Secretary, Home Department Government Of Tripura,
New Capital Complex, P.O-Kunjaban, P.S- East Agartala, District- West
Tripura-799006.

2.The Director General of Police,
Government of Tripura, Agartala, PO- Agartala, PS- West Agartala,
District- West Tripura.

3.The Inspector General of Police (AP & OPS)
Agartala, P.O-Agartala , P.S- West Agartala,
District- West Tripura.

4.The Deputy Inspector General of Police, AP (Admn And Trg),
Agartala, P.O-Agartala , P.S- West Agartala,
District- West Tripura.

5.98041113 Gunaraj Rai,
C/O 3rd Bn. TSR Commandant, Kachuchara, PO- Kachuchara, Dhalai,
Tripura.

6.98050521 Manoj Kumar Sole,
C/O- 6th Bn. TSR Commandant, Ram Chandraghat, Po-Khowai, District-
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Khowai

7.98050515 Subhas Chandra Barman,
C/O 2nd Bn. TSR Commandant, Radha Kishorenagar, PO-Khas
Naoyagoan, Khayarpur, West Tripura.

8.98060320 Bipul Karjee
C/O 13th Bn. TSR Commandant, Kanchanpur, PO-Khanchanpur, North
Tripura.

9.20005199, Shri Kamalesh Kumar
C/O 9th Bn. TSR Commandant, Hichacherra, Santirbazar P.O-
Santirbazar, District- South Tripura.

10.20004571 Sadhav Singh Negi
C/O 10th Bn. TSR Commandant, NIT Campus, Jirania, PO- Jirania,
District- West Tripura.

11.01071098 Pradeep Kumar Panda
C/O 3rd Bn. TSR Commandant, Kachuchara, P.O- Lachuchara, Dhalai,
Tripura

12.01080342 Sajal Nath
C/O 13th Bn. TSR Commandant, Kanchanpur, PO- Kanchanpur, North
Tripura

13.00010610 Manoj M.
C/O 6th Bn. TSR Commandant, Ram Chandraghat, PO Khowai, District-
Khowai.

14.01071024 Pitabash Mahakud
C/O 2nd Bn. TSR Commandant, Radha Kishorenagar,
PO-Khas Naoyagoan, Khayarpur, West Tripura.

15.01070698 Uttam Debnath
C/O 11th Bn. TSR Commandant, Gakulnagar, Po- Bishalgarh, PS
Bishalgarh, District- Sepahijala.
                                                        .....Respondent(s)

For Appellant(s)               : Mr. Raju Datta, Advocate.

For Respondent(s)            : Mr. S.M. Chakraborty, Sr. Advocate.
                               Mr. D.K. Biswas, Advocate.
                               Mrs. A. Pal, Advocate.





                                W.A. No.27/2018

Sri Suman Saha

Son of late Kshitish Chandra Saha, resident of Village- Office Tilla, PO and PS- Bishalgarh, District- Sepahijala, Tripura.

Versus

1.The State of Tripura, represented by the Secretary to the Government of Tripura, Home Department. having his office at Secretariat Complex, PO- Agartala, PS West Agartala, Sub-Division- Agartala, District- West Tripura.

2.The Director General of Police Government of Tripura, having his office at Police Headquarters, Fire Service Chowmuhani, PO-Agartala, Sub-Division- Agartala, District- West Tripura.

3.The Inspector General of Police, (AP and OPs) having his office at Police Headquarters, Fire Service Chowmuhani, PO- Agartala, Sub-Division- Agartala, District- West Tripura.

4.The Deputy Inspector General of Police, AP (Admn. and Trg.) having his office at Police Headquarters, Fire Service Chowmuhani, PO-Agartala, Sub-Division- Agartala, District- West Tripura.

5.Sri Sailendra Bhattacharjee

6.Sri Rajib Sinha

7.Sri Madan Kumar Mishra

8.Sri Satyendra Debnath

9.Md. Kaushar Ali

10.Sri Kumar Sunil Gupta

11.Sri Bipul Paul

12.Sri Sujit Sinha

13.Sri Tapan Sarkar

14.Sri Gunaraj Roy

15.Sri Manoj Kumar Sole

16.Sri Subash Chandra Barman, and

17.Nayan Das

The private respondents are posted in various corners of the State of Tripura, and Notices upon them may be served through the respondent No.2, namely, The Director General of Police, Government of Tripura, having his office at Police Headquarters, Fire Service Chowmohani, PO- Agartala, Sub-Division- Agartala, District- West Tripura.

                                                        .....Respondent(s)

For Appellant(s)             : Mr. Somik Deb, Advocate.

For Respondent(s)            : Mr. S.M. Chakraborty, Sr. Advocate.
                               Mr. D.K. Biswas, Advocate.
                               Mr. R. G. Chakraborty, Advocate.


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

Date of hearing and judgment : 08/09.02.2021.

Whether fit for reporting    : No.


                     JUDGMENT & ORDER (ORAL)

(Akil Kureshi, CJ).

These Appeals arise out of the common judgment of the learned

Single Judge dated 03.01.2018 in W.P. (C) Nos.271 of 2017 and 84 of

2017.

2. This litigation has a long history. Briefly stated the facts are as

under:

All the appellants-original petitioners were engaged as Havildar

(General Duty) in the Tripura State Rifles („TSR‟, for short). As per Rule

37 of Tripura State Rifles (Recruitment) Rules, 1984, post of Havildar

(Clerk) would be filled up by transfer from amongst general duty

Havildars failing which from amongst Naiks, failing which from amongst

Lance Naiks and failing which from amongst Riflemen, who fulfill certain

conditions such as (a) are willing for transfer; (b) have passed at least

matriculation or an equivalent examination; (c) possess minimum speed of

30 words per minute in English typing; (d) have put in at least 2 years of

service and (e) have been approved for such transfer by the Deputy

Inspector General.

3. In the year 2004, the Government undertook the exercise of filling

up of several vacancies in the post of Havildar (Clerk). A DPC was

convened which recommended names of 29 candidates for

transfer/promotion to the said post of Havildar (Clerk). The names of the

petitioners were not included in the said initial list. Subsequently, another

panel was prepared on 12.05.2004 which included the names of the

petitioners. The department granted transfer/promotion to two candidates

shown at serial numbers 11 and 12 of the said list subsequently prepared

ignoring the claims of the petitioners who were enjoying a superior rank

position upon which the petitioners and some other similarly situated

candidates filed W.P. (C) No.188 of 2006 before the Gauhati High Court.

The Gauhati High Court disposed of the said petition by a judgment dated

15.12.2010. In the judgment the learned Single Judge noted the stand of

the department that the petitioners were not granted promotion/transfer

since they had approached the High Court. The relevant portion of the

judgment reads as under:

"...That apart, in view of appointment of the respondent Nos.29 and 30, whose names appeared at Sl. No.s11 and 12 in the earlier panel dated 17-5-04, the refusal to appoint the writ petitioners, whose names also appeared in the said panel at Sl. Nos.1 to 10, on the ground of pendency of the writ petition filed by the petitioners, cannot be the sufficient and ground to deprive the petitioners from the benefit of promotion, inasmuch as there was no stay order in respect of the appointment of the petitioners on promotion. Fact remains that at the relevant time, ten vacant posts were available in the said establishment and the panel showing the names of the qualified candidates included the names of the petitioners at Sl. Nos.1 to 10 of the said panel. Therefore, there is sufficient merit in this writ petition.

7. However, in view of the submission that the petitioners‟ cases would be considered for promotion maintaining their seniority with retrospective effect after disposal of this writ petition, I am of the considered opinion that this writ petition should be disposed of directing the State respondents to consider

the petitioners‟ case for promotion maintaining their seniority with retrospective effect.

8. With the above direction, this writ petition stands disposed of. The entire process shall be completed within a period of three months from this date. A copy of this order be furnished to the learned counsel appearing for the State respondents for doing the needful."

4. It appears that some of these petitioners had filed Writ Appeal

against the said judgment of the Single Judge in the Gauhati High Court.

However, during the pendency of the Writ Appeal, the department had

issued order dated 09.03.2011 accommodating all petitioners in Havildar

(Clerk) stream with retrospective effect from 13.11.2009. Thereupon the

W.A. No.39 of 2011 was withdrawn with a liberty to file a petition raising

similar contentions as those raised in the Writ Appeal. This order was

passed on 10.12.2013.

5. The stand of all the petitioners is that the department had committed

a serious error in granting them the effective date of seniority in the cadre

of Havildar (Clerk) from 13.11.2009 instead of 10.02.2004 when during

the original exercise of filling up of several vacancies, their rightful

candidatures were ignored. The petitioners thereupon filed representations

before the department. Sri Suman Saha, petitioner of W.P. (C) No.271 of

2017 filed a representation on 20.02.2016 and contended as under:

"7. I was assured, that, my redress will be taken due care off and in due course of time it will be redressed. I have been waiting since January 2011 but without any response. Under the circumstances, stated above, I submit to your good office to modify the order dated 09.03.2011 to the extend, that, my promotion to the Havildar (Clerk) would be retrospectively with effect from 10.02.2004. I hope and believe that your good office render justice to me and for this act of kindness I shall highly obliged."

6. His representation was turned down by the department by a

communication dated 01.03.2016 conveying to him that as per the

judgment of the Gauhati High Court, he has already been granted

retrospective effect of transfer to Havildar (Clerk) from 13.11.2009, no

further benefit can be granted.

7. Likewise Shri Kedar Singh and others, the petitioners of W.P. (C)

No.84 of 2017 had made a similar representation to the authorities on

16.04.2014, which was rejected on 02.06.2014. The present petitions

thereafter came to be filed in the year 2017. These petitions were

dismissed by the learned Single Judge by a common judgment primary on

the grounds that the petitioners cannot claim seniority from 10.02.2004 as

per the decision of the Gauhati High Court in earlier round of litigation, the

petitioners had not questioned the method followed by the State

Government for short listing the candidates in the previous exercise and

that the petitioners had also consumed substantial time in approaching the

High Court.

8. Under such circumstances, appearing for petitioner of W.P. (C)

No.271/2017, learned counsel Mr. Somik Deb, submitted that the

Government had clearly misinterpreted and misapplied Rule 37 of the

Recruitment Rules for the posts of Havildar (Clerk). When the petitioner

and other similarly situated Havildar (GD) were available and willing for

transfer to the cadre of Havildar (Clerk), the department could not have

considered officials from any other cadre for transfer or promotion. The

Gauhati High Court in the previous round of litigation had provided that

the petitioners would be granted such transfer from retrospective effect.

The department committed a serious error in granting retrospectivity only

from 13.11.2009 instead of 10.02.2004 when several persons from cadres

other than Havildar (Clerk) were granted promotion. He submitted that

mere delay should not be fatal to the cause of the petitioners in the present

case.

9. Learned counsel Mr. Raju Datta, appearing for the petitioners of

W.P. (C) No.84 of 2017 submitted that the petitioners had made a

representation to the department and when such representation was turned

down they filed a fresh petition.

10. Learned senior counsel, Mr. S.M. Chakraborty, appearing for some

of the private respondents supported the decision of the learned Single

Judge submitting that the petitioners had never challenged the promotions

of such private-respondents. These issues, therefore, cannot be reopened at

this stage.

11. Learned special counsel, Mr. D.K. Biswas, appearing for the

Government also opposed the Appeals, heavily relying on the element of

delay in filing the Writ Petitions. He relied on the decision of the Supreme

Court in case of Shiba Shankar Mohapatra and others vs. State of Orissa

and others, reported in (2010) 12 SCC 471 to contend that in the matters

of seniority, the Court would not reopen the settled disputes after a long

gap of time.

09.02.2021.

12. In the present case, we find that the ground of gross delay and laches

raised by the administration is perfectly justified. To recapitulate, the

grievance of the original petitioners was that for the post of Havildar

(Clerck) the department had considered candidates from other cadres such

as Naiks, Lance Naiks, Riflemen along with the cases of these petitioners,

who belonged to the cadre of Havildar (GD). According to the petitioners,

this was not as per the mandate of Rule 37(1) of the said Rules. The

petitioners had earlier approached Gauhati High Court in W.P. (C) No.188

of 2006 which was disposed of on 15.12.2010 outcome of which we have

recorded earlier. The Government had showed willingness to consider the

petitioners for "promotion" by maintaining the seniority with retrospective

effect. Thereupon the Government issued an order dated 09.03.2011

granting retrospective effect of absorption of the petitioners in the cadre of

Havildar (Clerk) with effect from 13.11.2009. This is probably on the basis

that a bunch of other employees of the feeder cadre were so promoted to

the said post on the said date. This order was not to the satisfaction of the

petitioners. They therefore ought to have questioned the same within

reasonable time. In this context, let us examine what the petitioners did

after the Government passed the said order dated 09.03.2011.

13. Suman Saha, petitioner of W.P. (C) No.271 of 2017 and the sole

appellant of W.A. No.27 of 2018 took no steps to ventilate his grievances

against the said order dated 09.03.2011 till 20.02.2016 when first time

made a representation to the department. This representation was rejected

by the department on 01.03.2016. The writ petition was thereafter filed

before the High Court on or around 19.02.2017.

14. Likewise, the appellants of W.A. No.20 of 2018, who are the

original writ petitioners of W.P. (C) No.84 of 2017, at one stage had

challenged the judgment of the Gauhati High Court in W.P. (C) No.188 of

2006 but withdrew the Appeal on 10.12.2013. In the meantime, the

Government had already passed the said order dated 09.03.2011 granting

limited retrospectivity to the petitioners in the cadre of Havildar (Clerk).

Against this order, only action taken by these petitioners was of making a

representation to the department on 16.04.2014. This representation was

rejected by the department on 02.06.2014. The Writ Petition was thereafter

filed on or around 23.01.2017.

15. It can thus be seen that to ventilate the grievances against the order

passed by the department on 09.03.2011, the Writ Petitions were filed in

January or February, 2017 and in the meantime, the petitioners had

approached the department by representations which the department

rejected in less than couple of months time. Right from 09.03.2011 till

January/February, 2017, the department consumed less than two months in

refusing the request of the petitioners for further enlargement of

retrospectivity. In case of Suman Saha, his first reaction after the

department passed the order was nearly 5 years later. In case of Kedar

Singh and others, the first representation was nearly 3 years after the date

of the order and once the representation was rejected further nearly two

and half years were consumed in filing the Writ Petition.

16. As correctly pointed out by learned counsel, Mr. D.K. Biswas in

matters pertaining to seniority, delay and laches, are viewed more

stringently by the Courts since it is settled law that a finalised seniority

position in a cadre should not be disturbed after a long gap of time. In the

said decision in case of Shiba Shankar Mohapatra (supra), the Supreme

Court had made following observations:

"29. It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the court is guilty of delay and the laches. The court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallises in the interregnum.

30. Thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal, this Court has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation."

17. Before closing, we must however, briefly comment on the approach

adopted by the department in managing the cadre. Rule 37(1) of the said

Rules as noted provides for filling up the posts of Havildar (Clerk) by way

of transfer from amongst general duty Havildar failing which from

amongst Naiks, failing which from amongst Lance Naiks and failing which

from amongst Riflemen subject of course to these candidates fulfilling the

requisite conditions contained in clauses (a) to (e) of sub-Rule (1) of Rule

37 such as, being willing for transfer, having minimum educational

qualification of matriculation or equivalent, possessing minimum typing

speed of 30 words per minute in English etc. The only interpretation of

sub-Rule (1) of Rule 37 would be that as long as qualified willing and

suitable candidates belonging to the cadre of Havildar (GD) are available,

the administration cannot tap the alternative sources. This is the plain

meaning of words "failing which". Even otherwise, this interpretation is

logical and reasonable since Havildar (Clerk) and Havildar (GD) are posts

in the same rank carrying the same pay scale. For a Havildar (Clerk)

therefore being brought over to the cadre of Havildar (Clerk) is a mere

transfer and not promotion. In comparison, the posts of Naiks, Lance Naiks

and Riflemen are lower posts in the hierarchy. For employees belonging

these cadres therefore being posted as a Havildar (Clerk) is a means of

promotion. The department therefore cannot club the Havildar (GD) along

with Naiks, Lance Naiks or Riflemen for a common consideration of

suitability and grant the status of Havildar (Clerk) to any of these

employees, who is found most meritorious. Any such methodology if

adopted by the department, would be opposed to the provisions contained

in sub-Rule (1) of Rule 37 of the said Rules since a person from the lower

post would get promoted before a Havildar (GD) gets a right to seek his

transfer to the cadre of Havildar (Clerk) and thus an employee in the lower

cadre would jump over the employee in a promotional post by joining the

cadre long after he is posted in the promotional cadre which would be

fundamentally opposed to the principles of service jurisprudence.

However, in view of our earlier conclusions about gross delay and laches

on part of the petitioners in ventilating their grievances, we have not

examined finer factual aspects of the exercise undertaken by the

department for filling up the vacancies of Havildar (Clerk) in the year

2004. We have made these observations since the stand adopted by the

department regarding the interpretation of Rule 37 was plainly erroneous

and if allowed to prevail, would create complications in future also.

18. Subject to these observations, both the Appeals are dismissed.

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

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




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