Sri Manoranjan Majumder vs The State Of Tripura And Others
2021 Latest Caselaw 910 Tri

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                        HIGH COURT OF TRIPURA
                          _A_G_A_R_T_A_L_A_
                        Review Petition No.32 of 2021
Sri Manoranjan Majumder
                                                       ......... Petitioner(s)

                                      Versus

The State of Tripura and others
                                                       ........ Respondent(s)

For Petitioner(s) : Mr. Somik Deb, Sr. Advocate, Mrs. Riya Chakraborty, Advocate, Ms. Swarupa Chisim, Advocate.

For Respondent(s)            : Mr. P.K. Dhar, Sr. G.A.,
                               Mr. R.G. Chakraborty, Advocate.

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

                                _O_ R_ D_ E_ R_
14/09/2021
(Akil kureshi, CJ)

This review petition has filed by the respondent of Writ

Appeal No.140 of 2021 and writ petitioner of WP(C) No.436 of 2017.

The writ appeal was filed by the State Government challenging the

judgment of the learned Single Judge dated 29.01.2021 passed in the

above mentioned writ petition. The petitioner was duly served with a

notice of writ appeal. He, however, did not put up any appearance and

therefore writ appeal proceeded in his absence. Before the learned Single

Judge, the petitioner had argued that he was denied the promotion to the

post of Inspector (Food) from that of Junior Storekeeper on account of a

pending departmental inquiry which though initially resulted in

imposition of punishment against him, the punishment was set aside by

the High Court by a judgment dated 18.11.2016 in WP(C) No.105 of

2009. In the said judgment itself it was provided that the petitioner should

be placed in his original position of his service immediately with all

service benefits to which he is entitled before punishment order was

passed. Thus, the departmental punishment was set aside with

consequential effect. Despite this, since the petitioner was not granted

promotion, he filed a fresh petition. Before the learned Single Judge the

government had argued that no person junior to the petitioner in his

category of Scheduled Caste was promoted for want of vacancy and the

petitioner therefore despite setting aside of punishment order cannot be

promoted. The department had pointed out that two persons who were

promoted and whose example the petitioner was citing belonged to

Scheduled Tribe. The learned Single Judge while disposing of the writ

petition had observed that non-availability of vacancy cannot be the

ground to deprive a person consideration of his right to be promoted "and

more particularly when his junior was promoted".

In the State appeal this Court had set aside the judgment of

the learned Single Judge inter alia on the grounds that even after the

punishment was set aside the petitioner did not have an automatic right of

promotion when the government had pointed out that no person junior to

the petitioner was promoted from his category and that while Shri Bhuttu

Debbarma who the petitioner had claimed was his junior and was granted

promotion, belonged to Scheduled Tribe category.

In this review petition, the petitioner seeks recall of this

judgment. He has not disputed any of the relevant facts relied upon by the

Division Bench for setting aside the judgment of the single judge. His

learned advocate Shri Deb submitted that the action of the department in

granting promotion to two Scheduled Tribe candidates at the relevant

time was erroneous. At least one of the vacancies would go to the

reserved category of Scheduled Caste and on which the petitioner should

have been considered.

It is undisputed that once a departmental action is set aside,

the government servant must be restored his right of being considered for

promotion in his turn. However, mere setting aside of departmental

punishment cannot result into automatic promotion. When the

government had successfully demonstrated before the Court that no

person junior to the petitioner in the category of Scheduled Caste was

promoted, his insistence that he must be considered and granted

promotion cannot be accepted. The contention that there was an error in

promoting two Scheduled Tribe candidates and that one such vacancy

should have gone to Scheduled Caste candidate, cannot be accepted for

multiple reasons. No such case was pleaded or established in the writ

petition. The promoted employees were never joined as respondents.

Mere coincidence of two Scheduled Tribe candidates getting promotion

by itself cannot be presumed to be erroneous exercise by the government.

This could happen for various reasons. It may depend on the backlog

vacancies and other similar factors. In short, what counsel for the review

petitioner is arguing before us is not borne out from the record. In a

review petition at appellate stage the entre basis of the petition is sought

to be changed.

In the result, review petition is dismissed. Pending

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

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




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