Sri Mithun Sarkar vs The State Of Tripura
2021 Latest Caselaw 249 Tri

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            HIGH COURT OF TRIPURA
               A_G_A_R_T_A_L_A
                WP(C) No. 690 of 2017

1.   Sri Mithun Sarkar, son of Sri Dinesh Chandra Sarkar,
     resident of Village Mantali, Ishanchandranagar, P.S.
     Amtali, District: West Tripura.
2.   Sri Bijoy Podder, son of Sri Sunil Chandra Podder,
     resident of Village Bikramnagar, Madhyamura, P.S.
     Amtali, District: West Tripura.
3.   Sri Sankar Majumder, son of Sri Sunil Majumder,
     resident of Village Indranagar, P.S. East Agartala,
     Dsitrict: West Tripura.
4.   Sri Pijush Das, son of Sri Nagen Das, resident of Village
     Sonari, Kakribari, Kharija, Koch Bihar, West Bengal,
     Pin-736179.
5.   Sri Ajay Brahma, son of Sri Tapan Brahma, resident of
     Village Pratapgarh, P.S. East Agartala, District: West
     Tripura.
                                             .....Petitioners
                    -V E R S U S-

1.   The State of Tripura, represented by the Secretary, Home
     Department, Government of Tripura, New Secretariat
     Building, Agartala, West Tripura, PIN-799006.
2.   The Secretary, Finance Department, Government of
     Tripura, New Secretariat Building, Agartala, West
     Tripura, PIN-799006.
3.   The Director General of Police, Government of Tripura,
     Fire Service Chowmuhani, P.O. Agartala, West Tripura,
     PIN-799001.
4.   The Inspector General of Police, TSR (Opp),
     Government of Tripura, Police Head Quarter, Fire
     Service Chowmuhani, P.O. Agartala, West Tripura, PIN-
     799001.
5.   The Deputy Inspector General of Police (Adm & Trg),
     Government of Tripura, A. D. Nagar, Agartala, West
     Tripura, PIN-799003.
                                         ..... Respondents.

B_E_F_O_R_E HON‟BLE MR. JUSTICE ARINDAM LODH

For Petitioner(s) : Mr. P. Roy Barman, Sr. Advocate.

Mr. K. Nath, Advocate.

For Respondent(s) : Mr. M. Debbarma, Addl. G.A.

Date of hearing
and delivery of
judgment and order        :         01.03.2021
Whether fit for reporting :         NO

                    JUDGMENT & ORDER [ORAL]

Heard Mr. P. Roy Barman, learned senior counsel assisted by Mr. K. Nath, learned counsel appearing for the petitioners. Also heard Mr. M. Debbarma, learned Addl. G.A. appearing for the respondents- State.

[2] By means of filing this writ petition, the petitioners have prayed for the following reliefs:

"(i) Issue Rule upon the respondents to show cause as to why a writ in the nature of Mandamus and/or any other order/orders shall not be issued whereby quashing and cancelling the letter dated 20.01.2017 issued by the Deputy Inspector General of Police, AP (Adm and Trg);

AND

(ii) Issue Rule upon the respondents to show cause as to why a writ in the nature of Mandamus and/or any other order/orders shall not be issued whereby directing the respondents to appoint the petitioners in the post of Havildar (Clerk) in terms of select list prepared by the Selection Board in the year, 2011 when vacancies in the post of Havildar (Clerk) are filled up.

AND

(iii) Call for the records pertaining to the instant writ petition from the custody of the respondents and to make the rule absolute.

AND

(iv) Make the Rule absolute AND

(v) After hearing both the parties pass order/orders as this Hon‟ble High Court considered fit and proper"

[3] Outlining the relevant facts, in brief, the petitioners have been serving as Rifleman (GD) under Tripura State Rifles [TSR, for

short]. Their services were governed by pre-amended TSR (Recruitment) Rules, 1984 vide Rule-37(1) provided that, the post of Havildar (Clerk) shall be filled up by transfer from amongst the general duty Havildar failing which from amongst Naiks, failing which from amongst Lance Naiks and failing which from amongst Riflemen, who-

(a) Are willing for such transfer;

(b) Have passed at least matriculation or an equivalent examination;

(c) Posses minimum speed of 30 words per minute in English typing;

(d) Have put in at least 2 years service in the Rifles; and

(e) Have been approved for such transfer by the Deputy Inspector General.

[4] It is the case of the petitioners that the Inspector General of Police (TSR & ORS), Tripura, by order dated 29.09.2011 constituted a Board to be chaired by the DIG (AP & Ops) having 4 other members towards selection of TSR Personnel for filling up 09 (SC-2, ST-2 & UR-

5) vacancies of Havildar (Clerk) in TSR Bns by way of transfer as per provision of Rule-37(1) of the TSR (Recruitment) Rules, 1984. By the said order the Commandant of TSR Bns were asked to invite willingness from willing and eligible Havildar (GD), Naik (GD), Lance Naik (GD) and Rifleman (GD) and forward the same along with service particulars of the willing and eligible candidates to the Chairman of the Board by 07.10.2011 (Annexure-1 to the writ petition).

[5] All the writ petitioners of this writ petition had participated in the selection process and their names also appeared in the select penal prepared by the DPC. Out of them, considering the seniority, 6[six] TSR Jawans were appointed as Havildar (Clerk). The DPC had kept 14

personnels including the petitioners in the waiting list to be considered as and when vacancies would arise. The petitioners had submitted representations to constitute DPC and consider their names for promotion to the post of Havildar (Clerk) on transfer. But, their representations were not considered for the reason that, in that meanwhile, the State- respondents were in the process of amending the TSR Rules as stated hereinabove. Thereafter, DPC was constituted to fill up the vacancies of Havildar (Clerk) but, the grievance of the petitioners are that their names were not considered by the DPC for promotion to the post of Havildar (Clerk) on transfer.

[6] Mr. Roy Barman, learned senior counsel appearing for the petitioners has submitted that since the names of the petitioners appeared in the select list in the earlier DPC and the DPC by virtue of this wait list, the DPC vis-a-vis the State-respondents was under obligation to fill up the posts of Havildar (Clerk) from the said select list as prepared in the year 2011. Mr. Roy Barman, has further submitted that the petitioners ought to be considered for the promotion to the post of Havildar (Clerk) on the basis of the earlier select list prepared under the pre-amended rules as their vested right were taken away by the Amendment Rules, 2015. Since, the vested right of the petitioners was taken away, they challenged the filling up of the vacancies by other TSR personnels under the Amended Rules, 2015. At the end, Mr. Barman, learned senior counsel in his usual fairness has submitted and produced a judgment of a coordinate Bench of this Court, wherein, similar questions arose and decided against the similarly situated petitioners.

[7] I have perused the judgment and order dated 02.12.2019 passed in WP(C) No. 353 of 2015 and WP(C) No. 354 of 2015, wherein, the learned Single Judge had considered the similar submissions of the

learned counsel appearing for the parties and after referring many judgments of the Apex Court, dismissed the petitions filed by the similarly situated TSR personnels having made the following observations as under:

"[16] The apex court in Hindustan Development Corporation (supra) has revisited the law and approved the law stated in Kamdhenu Cattle Field Industries (supra) and observed that legitimate expectation gives the applicant sufficient locus-standi for judicial review. The doctrine of legitimate expectation is to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking. The doctrine does not give scope to claim relief straightaway from the authorities as no crystallised right as such emerges. The protection of such legitimate expectation does not require the fulfilment of the expectation where an overriding public interest requires otherwise. Where a person's legitimate expectation is not fulfilled by causing its reversal then the decision-maker should justify the denial of such expectation by showing some overriding public interest. Therefore, even if substantive protection of such expectation is contemplated, that does not grant an absolute right to a person who extends his claim on such expectation. The law, as discussed before, simply outlines the circumstances in which that expectation may be denied or restricted. Legitimate expectation being less than a right operates in the field of public law and not in the private law domain and to some extent, such legitimate expectation ought to be protected, though not guaranteed. A case of legitimate expectation would arise when a body by representation or by past practice aroused expectation which would be within its powers to fulfil. The protection is limited to that extent and a judicial review can be within those limits. A person who bases his claim on the doctrine of legitimate expectation, in the first instance, must satisfy that there is a foundation and thus he has locus standi to make such a claim. Where there are stronger reasons to deny the legitimate expectation, the expectation should not be substantively or otherwise protected. Thus, the legal obligation emerges whenever the case is stronger than the case against it. If principles of natural justice does not condition the exercise of the power, the concept of legitimate expectation can have no role to play and the Court must not usurp the discretion of the public authority, which is lawfully empowered to take the decisions and the court is expected to apply an objective standard which leaves the deciding authority to its full range of choices. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness in favour of a person whose interest is based on legitimate expectation, even he is affected by such decision. In the matter of policy, if any change is made in the old policy, the courts cannot interfere with a decision. If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or based on gross abuse of

power or violation of principles of natural justice, the same can be questioned on the well-known grounds available under Article 14 but a claim based on mere legitimate expectation without anything of that sort, cannot ipso facto give a right to invoke this doctrine. The court however can lift the veil and see whether the decision is violative of these principles or warrants interference. It depends on the facts and the recognised principles of administrative law which might canonically apply to facts, and the concept of legitimate expectation, which is the latest recruit to a long list of concepts fashioned by the courts for the review of administrative action, must be restricted to the general legal limitations in the matter of future exercise of administrative power in a particular case. It follows that the concept of legitimate expectation is „not the key which unlocks the treasury of natural justice and it ought not to unlock the gates which shuts the court out of review on the merits,‟ particularly when the element of speculation and uncertainty is inherent in that very concept. The courts should restrain themselves and restrict such claims to the legal limitations."

[8] For the purpose of deciding the case, I have also taken note of the judgment in the case of Union of India v. Krishna Kumar and Others, reported in (2019) 4 SCC 319, as relied upon by the learned counsel for the petitioners in support of his case particularly, the proposition of law as laid down in paragraphs-11 and 12. For the purpose of reference the relevant paragraphs are reproduced hereinbelow:

"11. In Deepak Agarwal Vs. State of Uttar Pradesh3, this Court observed thus:

"26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the `rules in force' on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah's case (supra) lays down any particular time frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants have been taken away by the amendment.

27. The judgments cited by learned counsel for the appellants namely B.L. Gupta Vs. MCD (supra), P. Ganeshwar Rao Vs. State of Andhra Pradesh (supra) and N.T. Devin Katti & Ors. Vs. Karnataka Public Service Commission & Ors (supra) are reiterations of a principle laid down in Y.V. Rangaiah's case (supra)."

12. Recently, in State of Tripura Vs. Nikhil Ranjan Chakraborty4, another two-Judge Bench of this Court held thus: (SCC pp.650- 51, para-9) "The law is thus clear that a candidate has the right to be considered in the light of the existing rules, namely, "rules in force on the date" the consideration takes place and that there is no rule of absolute application that vacancies must invariably be filled by the law 4 (2017) 3 SCC 646 existing on the date when they arose.

As against the case of total exclusion and absolute deprivation of a chance to be considered as in the case of Deepak Agarwal (supra), in the instant case certain additional posts have been included in the feeder cadre, thereby expanding the zone of consideration. It is not as if the writ petitioners or similarly situated candidates were totally excluded. At best, they now had to compete with some more candidates. In any case, since there was no accrued right nor was there any mandate that vacancies must be filled invariably by the law existing on the date when the vacancy arose, the State was well within its rights to stipulate that the vacancies be filled in accordance with the Rules as amended. Secondly, the process to amend the Rules had also begun well before the Notification dated 24.11.2011." [Dr. D. Y. Chandrachud & Hemant Gupta, JJ (See.)]

[9] After close reading of the principles laid down by the Apex Court in the aforesaid decisions [Union of India v. Krishna Kumar, (supra)], it is clear that it is not mandate of law that cacancies must be filled invariably by the law existing as the date when such vacancy arose, and the State is well within its rights to stipulate that the vacancies filled in accordance with the Rules as amended. Thus, I am of the opinion that, the proposition of law as laid down in these judgments do not in any way support the case of the petitioners, rather, it supports the case of the respondents-State. Accordingly, the instant writ petition stands dismissed and thus, disposed of.

JUDGE

A.Ghosh