Tripura High Court
The State Of Tripura And Others vs Sri Gopesh Das And Another on 31 August, 2022
Page 1 of 6
HIGH COURT OF TRIPURA
AGARTALA
W.A. No.134/2021
The State of Tripura and others
...... Appellant(s)
VERSUS
Sri Gopesh Das and another
......Respondent(s)
For Appellant(s) : Mr. Debalay Bhattacharjee, G.A.,
Mr. Partha Saha, Advocate.
For Respondent(s) : Mr. A. Pal, Advocate.
HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
Order
31/08/2022
(Indrajit Mahanty, C.J.)
Heard Mr. Debalay Bhattacharjee, learned Government
Advocate, appearing for the appellants-State and Mr. A. Pal, learned
counsel, appearing for the respondents.
2. Challenge has been made in the present writ appeal by the State
to a judgment and order dated 17.12.2019 rendered by the learned Single
Judge in WP(C) No.76 of 2019 whereby the learned Single Judge was
pleased to direct setting aside of the order of reversion dated 07.12.2018 on
the grounds stated therein.
3. The learned Single Judge was pleased to consider as follows:
"Rule 5 of the Tripura State Rifles (Discipline, Control
Service Conditions etc.) Rules, 1986 (hereinafter to be
referred to as 'the said Rules') lays down the condition for
eligibility for approved lists. Relevant portion of this Rule
reads as under:-
"5. (1) A person should satisfy the following
conditions to become eligible for consideration for inclusion
in the concerned approved lists:-
Approved list -D- For promotion of Havildars as Naib
Subedars:
(a) Must have at least five years satisfactory service as
Havildar.
(b) Must have passed first class certificate of
education.
(c) Should not be above the age of forty years as on
1st day of July of the year in which the list is finalized."
As per this Rule, thus, the condition for eligibility for
approved list would be that the person should not be above
the age of 40 years as on 1st day of July of the year in which
the list is finalized. The admitted facts are that the date of
birth of petitioner No.1 is 15.01.1965 and that of the
petitioner No.2 is 05.04.1965. Further, the department had
forwarded the list of eligible Havildars to the Commandant
as per the seniority and eligibility for attending Group-B
Cadre posts under a communication dated 15th of December,
2004. The approved list of course was prepared on 7th of
May, 2005. One possible view would be that the eligibility
of the concerned candidate should be judged as on 1st of
July, 2004 since the list was forwarded to the Commandant
on 15th of December, 2004. This interpretation may not be
eventually accepted and the stand taken by the Department
that since the approved list is prepared on 7th of May, 2005,
the cut-off date would be as on 1st July, 2005 may not be
disturbed. However, if on account of this one possible view
the petitioners who had not crossed the age of 40 years as on
01.07.2004, were allowed to undertake the special course for
the post of Naib-Subedar and upon successful completion of
such course were promoted nearly 12 years back, such
position should not be allowed to be disturbed. Significantly,
both the petitioners would also retire on superannuation
within a couple of years.
On all these grounds, impugned order dated 7th of
December, 2018 insofar as it relates to reversion of the
petitioners is concerned, is set aside.
Petition disposed of accordingly."
4. Mr. Debalay Bhattacharjee, learned Government Advocate, on
behalf of the State placed reliance on paragraph-6 of its counter affidavit
filed before the learned Single Judge wherein it was contended as follows:
"6. That, in reply to the statement made in entire para 3 of
the writ petition I state that it is a fact as per condition for
eligibility for approved list-D as laid down in sub-rule (1) of
Rule 5 (Approved list-D) of the Tripura State Rifles
(Discipline, Control and service condition Etc.) Rules, 1986
(hereinafter called the TSR service Rules, 1986) the
petitioners were nominated for undergoing Pre-promotion
cadre list-'D' vide letter dated 15.12.2004 (Annexure-P-2 to
the writ petition). The final test of the said cadre course was
conducted on 12.04.2005. But the cut-off date for the
petitioners was 01.07.2005. In the meantime, i.e. on
01.07.2005, the petitioners were crossed their age of 40
years.
It is also stated herein that the publication of final
seniority list and finalization of pre-promotion cadre list-'D'
course for promotion to the rank of Naib-Subedar (GD) are
not similar fact in issue.
It is further stated herein that to comply the judgment
and order dated 18.04.2017 passed by this Hon'ble Court in
Kishore Kumar case (Supra), the State respondents has
issued a proposed reversion order vide No.7371-
77/F.8(299)-PHQ/TSR/2017, dated 22.02.2018 stating that
04(four) TSR personnel including the petitioners were
promoted to the post of Naib-Subedar (GD) beyond the age
of 40 years by inadvertent mistake or overlooked the rule
5(1)(c) of TSR Service Rules, 1986. A copy of the said order
is annexed herewith and marked as ANNEXURE-R/2.
Out of 04(four) TSR personnel one named, Sri Priya
Hari Debbarma has been omitted from reversion order on
scrutiny of his service records and found his date of birth is
03.01.1966 instead of 03.01.1965 meaning thereby at the
time of his promotion to Naib-Subedar, he completed only
39 years 04 months and 04 days as on 15.12.2004 and hence,
his name is deleted from the reversion order.
In respect of the 3(three) TSR personnel including the
petitioners herein, on scrutiny of their service records were
found beyond the age of 40 years at the time of their
promotion to Naib-Subedar and by mistake they were given
promotion to the said post and therefore, 3(three) TSR
personnel including the petitioners in the instant writ petition
were reverted from the post of Naib-Subedar (GD) to
Havildar (GD), no financial benefits received by them for
their promotion may be recovered (Annexure-6 to the writ
petition)."
5. It is clear from the stand taken by the State that the cut-off date
for the petitioners was 01.07.2005. Under Annexure-3 to the writ petition,
the order of promotion was issued by the competent authority on 07.05.2005
in which the names of the writ petitioners (present respondents) find
mention. In other words, prior to the cut-off date, i.e. 01.07.2005 as
contended by the State, orders of promotion had already been passed by the
competent authority on 07.05.2005 and all that was required to be done
thereafter was the necessary issue of the formal promotion order which was
to be issued by the Commandant of the Unit.
6. In view of such a fact, we are left with no other conclusion but
to state that promotion of the private respondents was effected by order
dated 07.05.2005 subject to issue of formal order thereafter by the
Commandant and consequently, the promotions were effected prior to
01.07.2005, i.e. the cut-off date as pleaded by the State.
7. In view of such finding, we find no error in the impugned
judgment and order dated 17.12.2019 rendered by the learned Single Judge
in WP(C) No.76 of 2019 and accordingly, affirm the same. The writ appeal
stands dismissed.
8. Pending application(s), if any, also stands disposed of.
(S.G. CHATTOPADHYAY), J (INDRAJIT MAHANTY), CJ
Pulak
