W.A. No.128/2019 vs The State Of Tripura & Others
2021 Latest Caselaw 80 Tri

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                     HIGH COURT OF TRIPURA
                           AGARTALA

                           1. W.A. No.128/2019

Sri Ranadeb Das & others
                                                           -----Appellant(s)
                                       Versus
The State of Tripura & others
                                                         -----Respondent(s)

Connected with

2. W.A. No.165/2019

Sri Pradip Kumar Reang & others

-----Appellant(s) Versus The State of Tripura & others

-----Respondent(s)

For Appellant(s) : Mr. Arijit Bhowmik, Advocate.

For Respondent(s) : Mr. S.S. Dey, Advocate General, Mr. Debalay Bhattacharjee, G.A., Mr. Somik Deb, Advocate, Mr. C.S. Sinha, Advocate, Mr. Raju Datta, Advocate.

3. W.A. No.179/2019 The State of Tripura & others

-----Appellant(s) Versus No.97051201 Sub (GD) Shri Raju Ghosh & others

-----Respondent(s)

4. W.A. No.186/2019

The State of Tripura & others

-----Appellant(s) Versus Md. Jalal Uddin & others

-----Respondent(s)

5. W.A. No.185/2019

The State of Tripura & others

-----Appellant(s) Versus Shri Ranendra Narayan Das & others

-----Respondent(s)

For Appellant(s) : Mr. S.S. Dey, Advocate General, Mr. Debalay Bhattacharjee, G.A., Mr. Mangal Debbarma, Addl. G.A.

For Respondent(s)               : Mr. Somik Deb, Advocate,
                                  Mr. Raju Datta, Advocate.

                           6. W.A. No.151/2019

Shri Dharma Sadhan Jamatia & others
                                                         -----Appellant(s)
                                     Versus
No.97051201 Sub (GD) Shri Raju Ghosh & others
                                                        -----Respondent(s)

                           7. W.A. No.166/2019

Shri Santa Mani Debbarma & others
                                                         -----Appellant(s)
                                     Versus
No.97051201 Sub (GD) Shri Raju Ghosh & others
                                                        -----Respondent(s)





                           8. W.A. No.167/2019

Shri Santa Mani Debbarma & others
                                                            -----Appellant(s)
                                       Versus
Shri Ranendra Narayan Das & others
                                                          -----Respondent(s)

                           9. W.A. No.168/2019

Shri Manas Roy (Debbarma) & others
                                                            -----Appellant(s)
                                       Versus
Md. Jalal Uddin & others
                                                          -----Respondent(s)

                           10. W.A. No.169/2019

Shri Aghore Debbarma & others
                                                            -----Appellant(s)
                                       Versus
Shri Ranendra Narayan Das & others
                                                          -----Respondent(s)

For Appellant(s)                  : Mr. Raju Datta, Advocate.
For Respondent(s)                 : Mr. S.S. Dey, Advocate General,
                                    Mr. Debalay Bhattacharjee, G.A.,
                                    Mr. Mangal Debbarma, Addl. G.A.,
                                    Mr. C.S. Sinha, Advocate.

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

Date of hearing and judgment : 25th January/1st February, 2021.

      Whether fit for reporting         : YES.





                       JUDGMENT & ORDER (ORAL)

(Akil Kureshi, C.J.)

These appeals are filed by the original private respondents as

well as the State Government. They have challenged a common judgment of

the learned Single Judge dated 24.05.2019 in WP(C) No.157 of 2013 and

connected petitions filed by Sri Raju Ghosh and others. The issues pertain to

promotion to the post of Tripura Police Service Grade-II from the feeder

cadres of Police Inspectors of Tripura Police and Subedars of Tripura State

Rifles. The original petitioners who were members of Tripura State Rifles

and were holding the posts of Subedars and were also eligible for promotion

to TPS Grade-II, were not promoted by the Government while granting

promotions to as many as 76 officers belonging to the said two streams by a

notification dated 05.06.2013 which was impugned in the writ petitions.

This litigation has a long history. As briefly as possible, the same may be

noted.

The Government of Tripura had framed the Tripura Police

Service Rules, 1967 (hereinafter to be referred to as the said Rules of 1967)

in exercise of powers under the proviso to Article 309 of the Constitution.

Rule 3 of the said Rules pertains to constitution of the Tripura Police Service

Grade-II and its classification. Sub-rule (1) of Rule 3 provides that there

shall be a State Police Service known as the Tripura Police Service. As per

sub-rule (2) of Rule 3 the said service would have two grades namely,

Grade-I (Selection Grade) and Grade-II. Part III of the Rules pertains to

method of recruitment. Rule 5 contained in the said chapter reads as under:

"5. Method of Recruitment:-

(1) Appointment to the Service shall be made by the following methods, namely:-

(a) not more than fifty per cent of the substantive vacancies which occur from time to time in the authorised permanent strength of the Service shall be filled by direct recruitment in the manner specified in Part IV of these rules; and

(b) The remaining such substantive vacancies shall be filled by selection in the manner specified in part- V of these rules, from amongst Officers who are substantively borne on the cadre of Inspectors of Police and Subedars of Tripura State Rifles Battalions in the State of Tripura.

Provided that 64% of the vacancies to be filled by selection shall be filled by eligible Inspectors of Police and the remaining 36% of the vacancies shall be filled by Subedars of Tripura State Rifles Battalions;

Provided further that in case of non-availability of eligible Inspectors of Police or Subedars of Tripura State Rifles Battalions, the unfilled vacancies in the quota of Inspectors of Police or Subedars of Tripura State Rifles Battalions may, in the exigencies of Public Service, be

filled by Subedars of Tripura State Rifles Battalions or Inspectors of Police, as the case may be.

(2) If the exigencies of service so require, the State Government may, in consultation with the Commission, vary the percentage of vacancies to be filled by each method specified in sub-rule (1)."

2. Rule 14 pertains to conditions of eligibility and procedure for

selection and reads as under:

"14. Conditions of eligibility and procedure for selection:-

(1) The Committee shall consider from time to time the cases of officers eligible under clause (b) of sub-rule (1) of rule 5, who have served in the cadre of Inspectors of Police and Subedars of Tripura State Rifles Battalions for not less than five years, and prepare a list of officers recommended taking into account the actual vacancies at the time of selection and those likely to occur during a year. The selection for inclusion in the list shall be on merit and suitability in all respects for appointment to the service with due regard to seniority.

(2) The names of persons included in the list shall be arranged in order of merit and forwarded to the State Government.

(3) Minimum educational qualification for promotion to Grade-II of the service shall be Graduation.

(4) The committee shall not consider the cases of the officers in the feeder posts who have attained the age

of 53 years on the 1st day of January of the year in the which the Committee meets."

3. As per Rule 15 the list to be prepared under Rule 14 by the

Government would be in consultation with the Public Service Commission.

Part XI of the rules pertains to relaxation. Rule 34 contained in the said part

reads as under:

"34. Power to relax:-

Where the State Government is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recorded in writing and in consultation with the Commission, relax any of the provisions of these rules with respect of any class or category of persons or posts."

4. Brief perusal of these rules would show that the recruitment to

Tripura Police Service Grade-II would be by direct recruitment for not

exceeding 50% of the vacancies and the remaining vacancies would be filled

up by selection as provided in Rule 14 from amongst officers in the cadre of

Inspectors of Police and Subedars of Tripura State Rifles. As per proviso to

clause (b) of sub-rule (1) of Rule 5, 64% of the vacancies to be so filled up

by selection would be from eligible Inspectors and the remaining 36% of the

vacancies would be filled by Subedars of Tripura State Rifles Battalions.

Further proviso below clause (b) of sub-rule (1) of Rule 5 provides that in

case of non-availability of eligible Inspectors or Subedars, the unfilled

vacancies in the quota of Inspectors of Police or Subedars may be filled up

from the other source in exigencies of public service. Rule 14 which lays

down the conditions of eligibility for selection, inter alia provides that the

official in the feeder cadre should have not less than five years of

experience, must have a minimum educational qualification of graduation

and should not have crossed the age of 53 years on the 1st day of January in

the year in which the committee for selection meets. Rule 34 vests the power

of relaxing such requirements in the Government by providing that where

the State Government is of the opinion that it is necessary or expedient so to

do, it may by order for reasons to be recorded in writing and in consultation

with the Commission, relax any of the provisions of the rules with respect to

any class or category of persons or posts.

5. In the year 2010, it appears that against 51 vacancies in Tripura

State Rifles Grade-II for appointment by selection. Sufficient number of

candidates eligible for promotion in the cadre of Inspectors of Police were

not available. The Government of Tripura, therefore, issued a notification

dated 09.03.2010 and in exercise of powers under Rule 34 of the said Rules

of 2007, in consultation with the Public Service Commission, granted one

time relaxation of the requirements of eligibility prescribed in Rule 14 for

promotion of Inspectors of Police and Subedars of Tripura State Rifles to the

following extent:

"(i) Inspectors of Police & Subedars of TSR Battalions having 3 years of service in the Grade.

(ii) Educational Qualification in respect of Inspectors of Police & Subedars of TSR Battalions shall be Higher Secondary (+2) passed.

(iii) Inspectors of Police & Subedars of TSR Battalions who have attained 53 years of age or above."

6. Thus, under the said notification the eligibility criteria of

minimum qualifying service, minimum educational qualifications and

maximum age all were relaxed by providing that (i) minimum experience

would be reduced to 3 years; (ii) educational qualifications would be

suppressed to Higher Secondary (+2) in place of graduation; and (iii) even

those Inspectors or Subedars who have crossed the age of 53 years will be

considered for promotion.

7. This notification dated 09.03.2010 was challenged by several

employees from both the feeder cadres by filing WP(C) No.195 of 2010 in

case of Sri Janardhan Sarkar and others vrs. The State of Tripura and

others and connected petition. These writ petitions were disposed of by the

learned Single Judge by a judgment dated 30.11.2011. The order of

relaxation was upheld. However, it was provided that those who are eligible

without the aid of relaxation, would be separately considered before

considering the officials who required the relaxations in the eligibility

criteria. It was further provided that such relaxation would be applicable

only to the 51 vacancies which were existing when the order of relaxation

was passed by the Government and not for future vacancies. Relevant

portion of this judgment reads as under:

"18. In the result, both writ petitions stand allowed, with the following directions:

(i) Departmental Promotion Committee (DPC) is directed to first consider promotion of writ petitioners in WP(C) No.195 and 440 of 2010, to fill the vacancies of TPS Grade-II Officers;

(ii) DPC shall consider the case of private respondents in the second round; and

(iii) Relaxation given by the government under notification dated 9th March, 2010 shall be confined to only the 51(fifty-one) posts of TPS Grade-II Officers and that too after first considering eligible officers on the basis of merit prescribed in Rule 14 of the TPS Rules, i.e prior to relaxation notification;

(iv) The relaxation notification shall not be applied in any case after filling 51(fifty-one) posts of TPS Grade-II Officers.

19. Since a large number of posts of TPS Grade-II Officers are lying vacant and also since many officers are

likely to go on superannuation within a short period, the DPC is directed to hold selection process as expeditiously as possible, preferably within a period of three months from today."

8. The State Government as well as original writ petitioners

challenged the judgment of the learned Single Judge in case of Janardhan

Sarkar (supra) by filing Writ Appeal No.23 of 2012 and connected appeals.

Pending such writ appeals the appellants filed C.M. Application No.41 of

2012 and sought stay of the judgment of the learned Single Judge. This C.M.

Application was disposed of by an order dated 03.07.2012 operative portion

of which reads as under:

"Considering the entire facts and circumstances we are of the considered opinion that it would be proper to pass an order of stay in the interest of justice, as sought for. At the same time, we are also of the view that the interest of the Opposite party-writ petitioners should be protected.

Accordingly, the common judgment and order dated 30.11.2011 passed in WP(C) 195/2010 and WP(C) 440/2010 is hereby stayed provided that any appointment made in pursuance of the notification dated 9th March, 2010 shall be subject to the ultimate outcome of the instant appeal.

CM application is accordingly disposed of."

9. Eventually the writ appeals were disposed of by the Division

Bench by a judgment dated 02.03.2013. All the appeals were dismissed. The

judgment of the learned Single Judge was upheld. Following observations

may be noted:

"71. In view of the above, we are of the opinion that the direction of the learned Single Judge for considering the case of the petitioners, at the first instance, depriving the others who became eligible after relaxation created a separate class within the class, as contended by Mr. Gupta, cannot be accepted as the petitioners themselves are a class as they have earned their eligibility for consideration prior to relaxation of the rules. Thus, the direction of the learned Single Judge is neither unreasonable nor perverse and even not in disregard of any established principle of law. Hence, we are reluctant to interfere with the judgment of the learned Single Judge. Appeals preferred by the State are dismissed.

72. As we have discussed in details, it is not necessary on our part to discuss separately the grounds taken by the writ-petitioners in their appeal WA 33/2012 as the petitioners have not even made out a prima facie case for admission of their appeal. Thus, the same is also dismissed."

10. The record would show that in terms of the interim order dated

03.07.2012 passed by the Division Bench in C.M. Application No.41 of

2012, the selection committee or the DPC as we call it, was convened in the

year 2012 itself. However, the recommendation of the DPC were not

implemented because because the Government was not satisfied about the

procedure followed by the DPC and also because of further litigation

pending before the Supreme Court at the hands of the original petitioners.

Once the writ appeals were disposed of, the Review DPC was convened on

30.5.2013. The minutes of the meeting of the DPC which was held on

30.05.2013 are on record and would show that the same was in continuation

and in furtherance of the previous DPC which had met under the permission

granted by the Court in the order dated 03.07.2012 passed in C.M.

Application No.41 of 2012. The DPC considered large number of officers in

the feeder cadre of Inspectors of Police as well as Subedars; both who were

eligible under the Recruitment Rules of 2007 as well as those who were

granted the benefit of relaxation as per the Government notification dated

09.03.2010. The DPC drew two lists for promotion to the cadre of Tripura

Police Service Grade-II, one for the Subedars of TSR where 29 candidates

were recommended for promotion and another for the Inspectors of Police in

which 47 candidates were recommended for promotion. In all the DPC thus

recommended 76 officers for promotion and recorded that six posts

belonging to ST category were left vacant on account of non-availability of

eligible candidates belonging to the said category. The Government, in

consultation with the TPSC accepted the recommendations of the DPC and

issued promotion orders in favour of those who were found fit and

recommended for promotion and issued a promotion order accordingly on

05.06.2013. This promotion order was challenged by Shri Raju Ghosh and

others by filing WP(C) No.157 of 2013 and connected petitions. All these

petitioners were Subedars in TSR. They were eligible for promotion to TPS

Grade-II without the aid of the relaxation. In the writ petitions they raised

several grievances in relation to the promotion order issued by the

Government. Fundamentally their contentions were:

(i) The DPC had not implemented the directions of the

learned Single Judge in case of Janardhan Sarkar (supra);

(a) As per the said decision the candidates who were eligible

without the aid of relaxation had to be considered for promotion first. Only

thereafter as a second stage exercise the remaining candidates who needed

the relaxation as per the Government order dated 09.03.2010 had to be

considered;

(b) The candidates with the aid of the relaxed eligibility

criteria were considered far above the originally notified 51 vacancies which

was also opposed to the directions of the High Court. In any case, one time

relaxation granted under order dated 09.03.2010 could not be applied for

future vacancies;

(ii) Their cases were not properly considered and they were

kept out of the purview of the promotion orders only on account of several

candidates who were otherwise not eligible but for the order of relaxation

dated 09.03.2010, were considered ahead of them since such candidates

were senior to them in their cadre.

11. On the basis of these contentions, the original petitioners had

prayed for setting aside the notification dated 05.06.2013.It was further

prayed that vacancies after setting aside the promotions be ordered to be

filled up in conformity with the decisions of this Court in case of Janardhan

Sarkar (supra).

12. The learned Single Judge disposed of the writ petitions by the

impugned judgment dated 24.05.2019. The learned Judge was of the opinion

that exceeding the relaxations beyond originally notified 51 vacancies was

wholly impermissible. He, therefore, directed that the Government would

reconstitute a DPC which would carry out the judgment of this Court in case

of Janardhan Sarkar (supra). For such purpose, the notification dated

05.06.2013 granting all the promotions was set aside. The relevant portion

of the judgment reads as under:

"29. It is an undisputed fact that the State-respondents could not confine to 51 posts as notified vide notifications No. F.2(24)-GA(P & T)/2001, dated 19.02.2010 and No.F.2(24)-GA(P & T)/2001, dated 09.03.2010 (Annexures P/2 and P/3 to the writ petition No.157/2013) which also gets support from the judgments and orders passed by this Court as stated supra. It is also an admitted position that the State-respondents had considered the filling up of 83 posts of TPS Grade-II officers and recommended for the same number of posts, needless to repeat, thus, obviously flouted the said orders of the Court as stated supra. In my considered view, the State-respondents has committed serious error and misdirected themselves in their action since their action was in total disregard and contrary to the directions of the judgment and orders dated 30.11.2011 and 02.03.2013 stated supra and arbitrarily violated the clear and specific directions of the Court.

30. It is in this backdrop, I direct the State-respondents to reconstitute the DPC with a further direction that the DPC would proceed strictly in conformity with the directions passed by the Court as indicated in the judgment and orders dated 30.11.2011 which was upheld and confirmed by the superior Court. More specifically, the DPC will take up the process of filling up of 51 posts of TPS Grade-II from the eligible officers of the Inspectors of Police and the Subedars of TSR. In the said process, if it is

found that the respective quota relating to TPS Grade-II cannot be filled up by the eligible officers holding the posts of Inspector of Police, then, it should first be filled up from the eligible officers, if any, are found from the posts of Subedars of TSR and similarly, if, in filling up the quota of the said post from Subedars of TSR, the eligible officers are not found, then, the unfilled vacancies will be filled up by the eligible officers holding the posts of Inspector of Police of the Tripura Police in the letter and spirit of the second proviso to Rule 5 of the TPS Rules as stated supra.

31. After exhausting of the said 51 posts, the process of filling up the remaining posts may be taken up for consideration by the DPC. Any violation or deviation of this order will tantamount to violation of this order and in that case, the concerned officers shall be liable to face contempt of Court proceeding in accordance with law.

32. Having situated thus, the notification No.F.2(24)- GA (P & T)/01 (Part), dated 05.06.2013 [Annexure P/6 to the writ petition (c) No.157/2013] wherein the process of filling up of 83 posts of TPS Grade-II was taken up, is set aside and quashed in so far as it relates to the promotion of the private respondents to the post of TPS Grade- II(Group-A Gazetted).

33. Accordingly, the writ petitions filed by the petitioners are allowed as indicated above."

13. In such background, learned counsel Mr. Arijit Bhowmik for

the appellants, i.e. private respondents in the writ petitions, submitted that

the learned Single Judge has committed an error in disturbing the promotion

orders issued by the Government. His main argument was the learned Single

Judge in case of Janardhan Sarkar (supra) had permitted applying

relaxation of rules for a total of 51 vacancies of the promotional post. The

total officials to be promoted from the feeder cadres on the basis of the

relaxed standards, therefore, should not exceed 51. Instead, the learned

Single Judge construed the previous decisions of the Single Judge and the

Division Bench of this Court in the said case of Janardhan Sarkar (supra)

as to apply the relaxed standards only for a total of 51 vacancies inclusive of

those officials who do not require any such relaxation.

14. Learned Advocate General appeared for the State and supported

the exercise undertaken by the State Government and further submitted that

in the interest of administration, the Government had decided to apply

relaxed standards for promotion looking to the exigencies prevailing at the

relevant time. He pointed out that if such relaxations were not granted, due

to non-availability of qualified candidates for promotion, large number of

vacancies in higher levels of police force would have remained vacant which

would be detrimental to the law and order situation.

15. On the other hand, learned counsel Mr. Somik Deb for the

original petitioners supported the decision of the learned Single Judge. He

submitted that the relaxed standards were allowed to be applied by the High

Court only for a total of 51 promotional vacancies. Beyond such vacancies

the relaxation could not have been applied. In fact, the High Court had

directed that the 51 vacancies would be filled up in two parts. First, all

eligible officers would be considered for promotion. After this exercise is

completed, the DPC could apply relaxed standards and consider other

candidates for remaining vacancies. This was clearly not done in the present

case as can be gathered from the fact that number of persons who were not

eligible according to the rules, were promoted in preference of the

petitioners merely because these ineligible candidates were senior to the

petitioners in the feeder cadre.

16. Having thus heard learned counsel for the parties and having

perused documents on record, we may briefly summarize the relevant facts

which are as under:

(i) Previously the Government had undertaken the exercise

of filling up 51 vacancies of the promotional post of Tripura Police Service

Grade-II for which the feeder cadres were Inspectors of Police of the State

police and Subedars of TSR. Since sufficient number of candidates fulfilling

the qualifications as per the rules were not available, the Government had

decided to relax the requirements by issuing a notification dated 09.03.2010.

This notification was challenged in WP(C) No.195 of 2010 in case of

Janardhan Sarkar (supra). The learned Single Judge in the judgment dated

30.11.2011 came to following conclusions:

            (a)    The relaxation order was valid;

            (b)    The same would, however, be applicable for filling up

only 51 vacancies which were available when the notification was issued;

(c) The entire exercise for filling up of these 51 vacancies

would be split in two parts. First, the DPC would consider officers who are

eligible for promotion without the aid of relaxation. Once this exercise is

over, the DPC could consider officers with the aid of relaxation for the

remaining vacancies; and

(d) By the time the decision was rendered by the learned

Single Judge further vacancies had arisen with respect to which the learned

Single Judge provided that selection process for filling up these newly

created vacancies would also be taken up expeditiously.

(ii) The Division Bench upheld the decision of the learned

Single Judge;

(iii) In order to ascertain correct facts we had requested the

learned Advocate General to make available the entire file pertaining to the

present promotions which we had perused along with the advocates of both

sides. This file reveals that after the learned Single Judge disposed of the

case in case of Janardhan Sarkar (supra) and the writ appeal was pending,

a DPC was convened on 22.08.2012 which made its recommendations. The

Government while examining the recommendations of the DPC found that

the directions of the learned Single Judge in case of Janardhan Sarkar

(supra) for splitting the exercise for consideration of 51 vacancies into

eligible and thereafter ineligible officers was not carried out by the DPC. A

review DPC was, therefore, convened on 30.05.2013 which made

recommendations for promotion of 29 Subedars of TSR and 47 Inspectors of

Police. A perusal of these lists would show that out of 29 Subedars 22 were

recommended for promotion without the aid of relaxation. Remaining 7

required application of relaxed eligibility criteria. Similarly for the

Inspectors of Police only 3 officials fulfilled the eligibility criteria. Rest 44

required application of relaxed standards;

(iv) All officers in both the cadres who were recommended

for promotion without the help of relaxation of rules were shown enblock

ahead of all those who required relaxation.

(v) The Government accepted the recommendations of this

DPC and issued the promotion orders.

17. In our view, the review DPC dated 30.05.2013 has committed

certain errors which would require corrections, however, not at the same

scale as which the learned Single Judge has directed. Firstly, it is abundantly

clear from the record that in case of Janardhan Sarkar (supra) this Court

had permitted the Government to apply the notification dated 09.03.2010 for

relaxation in eligibility criteria, however, directed that the same would be

confined to 51 vacancies which existed at the time when this notification

was issued. It was made clear that for the future vacancies this relaxation

order would not be applied. It was also otherwise quite reasonable and

logical conclusion. The powers of relaxation are to be exercised by the

competent authority after due deliberations and consideration of all relevant

aspects of the matter. Neither the order was meant to apply in perpetuity nor

could it be so applied by the Government for future vacancies. If for

vacancies which arise subsequently, there are sufficient reasons to permit the

competent authority to exercise the power of relaxation, the same must be

done after due deliberations and consideration of all relevant aspects of the

matter. Power of relaxation exercised at one point of time considering the

exigencies prevailing at the relevant time, cannot be duplicated and

projected over future vacancies. We cannot accept the contention of Mr.

Arijit Bhowmik that this Court in case of Janardhan Sarkar (supra)

permitted the administration to fill up a total of 51 vacancies with the aid of

relaxed standards. This would be doing mutilation to the language used by

the Court in these two judgments as well as run counter to the principle of

exercise of power of relaxation of rules and in particular, eligibility criteria

which we have discussed above.

18. We must, therefore, confine the administration to applying the

relaxed standards of eligibility criteria pursuant to the said notification dated

09.03.2010 for the 51 vacancies existing at the relevant time. The rules

provide for filling up the vacancies in the ratio of 64% as to 36% in favour

of Inspectors of Police and Subedars respectively. Against the 51 vacancies,

therefore, 17 would be available to the Subedars and 34 would be filled up

from amongst the Inspectors of Police. Only up to these number of

vacancies in the respective feeder cadres, relaxed standard could be applied.

Any promotion granted beyond these numbers by applying relaxed

standards, must face cancellation. Applying this formula, we may recall that

the Government had promoted 29 Subedars of which 22 did not require

relaxation. The remaining 7 Subedars shown at Sl. Nos. 23 to 29 of the list,

and who required relaxation of eligibility criteria, were thus well outside the

number of vacancies available to their stream considering a maximum 51

vacancies for which relaxation order would be applicable.. All these

promotees, must vacate the promotional positions.

19. Likewise in case of Inspectors of Police, only upto 34 vacancies

relaxation in eligibility criteria can be applied. As noted, only 3 (shown at

serial no. 30 to 32) out of 47 promotees were eligible. The rest of the

officials were promoted with the aid of relaxation. Promotions of officers

from Sl. No.30 till 63 would be in order. Promotions of officials from Sl.

No.64 to 76 would be cancelled.

20. Learned counsel Mr. Somik Deb for the original petitioners had

vehemently contended that these petitioners were not included in the select

list at all since persons in the feeder cadre senior to them were wrongly

considered with the aid of relaxed eligibility criteria. According to Mr. Deb

this happened because the DPC did not carry out the exercise for promotion

in two distinct separate parts as directed by this Court in case of Janardhan

Sarkar (supra). For example, he would point out, the first Subedar to be

promoted Shri Dashrath Singh Bhandari was overage as on 01.01.2013

which is the cutoff date as per the rules since the DPC which recommended

his promotion was convened on 30.05.2013. This contention, however,

cannot be accepted. Firstly, Shri Dashrath Singh Bhandari was born on

02.04.1959. As on 01.01.2012 thus he had not crossed the age of 53 years.

He did cross the age of 53 years on 01.01.2013. However, the DPC which

was convened on 30.05.2013 was in the nature of a review DPC. We have

noticed that the original DPC was convened on 22.08.2012 which had

considered all cases and made recommendations. However, while examining

the recommendations of the DPC, the Government noticed that the DPC had

not split the consideration of eligible officers ahead of ineligible officers as

required by the High Court in case of Janardhan Sarkar (supra). The

Government, therefore, did not accept the recommendations but drew a

review DPC and that is how a fresh exercise was undertaken on 30.05.2013

by the review DPC. The entire exercise was thus one integrated exercise

which had commenced in August, 2012. The relevant year for considering

the upper age limit, therefore, was 01.01.2012 and not 01.01.2013. Further,

we have also verified and are satisfied that the review DPC of 30.05.2013

had undertaken the exercise of consideration of eligible officers separately

and ahead of ineligible officers who required the assistance of relaxation

order. This is clear from the fact that irrespective of inter se seniority of

these eligible and ineligible officers, all eligible officers recommended for

promotion were placed enblock ahead of those officers who were considered

with the aid of relaxation. Merely because the entire exercise was

undertaken on the same day, would not mean that the exercise was not

carried out in two separate parts. What was of essence was to consider all

eligible officers for promotion first to the exclusion of ineligible officers and

only to the extent of remaining vacancies after considering eligible officers,

remaining officers from the feeder cadres with the aid of relaxation would be

considered.

21. The review committee in its meeting dated 30.05.2013 has

specifically recorded that the promotion is to be made by the method of

selection and the selection committee has, therefore, followed the criteria

laid down in the Government memoranda along with various instructions

issued by the Government. Such criteria have been applied to all officers

falling within the zone of consideration for determining them as fit or unfit

on the basis of their service record. It was also recorded that the benchmark

for promotion from Group-B post to Group-A post carrying the Pay Band-4

has been treated as "Very Good". It was after applying these criteria that the

DPC had made its recommendations. The names of the original petitioners

did not figure in the list of candidates recommended for promotion.

Consequently, they were not granted promotions. It would thus appear that

the petitioners were considered by the review DPC. Their cases were

considered along with other eligible officers before considering officers with

the aid of relaxation. However, since the petitioners were not found fit for

promotion, presumably on the ground that they did not have minimum

benchmark of "Very Good" required for promotion, they were not

recommended. Clearly, therefore, this is not a case where the original

petitioners lost out their promotions on account of more senior but ineligible

officers being considered ahead of them with the aid of relaxation in

eligibility criteria. These petitioners, therefore, can derive no benefit out of

the present litigation.

22. The question, therefore, would be should this Court disturb the

promotions of private respondents. The answer in facts of the present case

has to be in the affirmative. This is so because the Government has

committed certain fundamental errors in applying the decision of the Single

Judge of this Court in case of Janardhan Sarkar (supra) as upheld by the

Division Bench. In Janardhan Sarkar (supra) the Court clearly provided

that relaxation in eligibility criteria would be applied only for a total of 51

vacancies and not thereafter. The Government could not have applied the

relaxed standards for remaining vacancies as we have already held.

23. By way of a culmination of above discussion, the appeals

would be disposed of with following directions:

(i) All the promotions of Subedars from Sl. No.23 to 29 in

the promotion order are set aside. These officers would be reverted to the

original posts. Likewise, Inspectors of Police shown at Sl. Nos.64 to 76

would be reverted to their original posts;

(ii) The resultant vacancies would be filled up from amongst

the officers from the feeder cadres who are presently eligible. Such

promotions would be prospective. This is provided in order to avoid any

cascading effect on the entire promotional cadre which would send further

uncertainty and upheaval;

(iii) In the interest of administration, it is provided that the

promotions may be granted within a period of six months from today and till

such time such promotions are granted, the officials who are to be reverted

as per this order, will be allowed to discharge their duties on promotional

post on ad hoc basis;

(iv) Upon reversion the pay of the employees would be

refixed in the lower cadres, however, the pay fixation already done as on

today would be protected as their personal pay till these officers earn their

increments in the lower posts as to cross the present level of pay fixation. In

other words, there would neither be any recovery for the past pay already

drawn, nor shall there be any reduction in pay fixed as on today. If by now

any of the reverted employees have retired or retire before their pay is

enhanced by efflux of time in the lower cadre to the present level, their post

retiral benefits would be worked out on the basis of the present pay being

drawn by them;

(v) None of the other persons in the cadre would be entitled

to seek upgradation by stepping up or pay parity with these officials since

their pay which has been protected is to be treated as personal to them only.

24. With these modifications in the decision of the learned Single

Judge, all the appeals are disposed of.

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

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




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