Sri Gautam Majumder vs The State Of Tripura
2023 Latest Caselaw 613 Tri

                           HIGH COURT OF TRIPURA
                                 AGARTALA

                                WA 212 of 2021

   Sri Gautam Majumder
   S/o Sri Gouranga Chandra Majumder
   Resident of Government Quarter No.T/III/4,
   Malancha Niwas, Block NO.1, Near AG Office,
   PO: Kunjaban, PS: New Capital Complex,
   District: West Tripura
                                                 ---Petitioner-Appellant(s)
                                    Versus
1. The State of Tripura
   Represented by its Secretary-cum-Commissioner to the Department of
   Labour, Directorate of Employment Services and Manpower Planning,
   Government of Tripura, PO: Kunjaban, PS: New Capital Complex,
   District: West Tripura

2. The Director,
   Directorate of Employment Services and Manpower Planning,
   Government of Tripura, PO: Agartala, Office Lane, PS: West Agartala,
   District: West Tripura

3. The Tripura Public Service Commission
   Represented by its Secretary, having his office at Akhaura Road,
   Agartala, PO: Agartala, PS: West Agartala, District: West Tripura,

4. Sri Partha Sarathi Dutta,
   S/O Unknown serving as Assistant Directorate (Employment), Directorate
   of Employment Services and Manpower Planning, Government of Tripura,
   Office Lane, PO: Agartala, PS: West Agartala, District: West Tripura.
                                                           ---Respondent(s)

   For Appellant(s)                : Mr. A. Pal, Advocate.
   For Respondent(s)               : Mr. P Roy Barman, Senior Advocate.
                                     Mr. S. Bhattacharjee, Advocte.
                                     Mr. M. Debbarma, Addl.GA.
                                     Mr. Raju Datta, Advocate.
   Date of hearing
   and date of

delivery of judgment and order : 09.08.2023. Whether fit for reporting : Yes.

HON'BLE MR. JUSTICE T. AMARNATH GOUD HON'BLE MR. JUSTICE ARINDAM LODH

Judgment and order (Oral)

(T. Amarnath Goud), J

This is an appeal under Rule 2 of the Chapter VA of the

Gauhati High Court Rules read with Article 226 of the Constitution of

India, against the impugned final order dated 11.01.2021 passed by the

learned Single Judge in WP(C)337 of 2018.

The reliefs sought by the petitioner in the WP(C) 337 of 2018

are as follows:

(i) Issue notice upon the respondents.

(ii) Call for the relevant records from the custody of the respondents.

(iii) Issue rule calling upon the respondents to show cause as to why memorandum dated 23.03.2018 whereby the seniority between petitioner and the private respondent has been determined on the basis of their joining to the respective posts, shall not be set aside and quashed.

And

(iv) Issue rule calling upon the respondents to show cause as to why the respondent shall not be restrained from acting in furtherance of the memorandum dated 23.03.208.

And

(v) Issue rule calling upon the respondents to show cause as to why the seniority of the petitioner and the Private respondent shall not be determined in order of merit as per recommendation of the Tripura Public Service Commission.

And

(vi) After hearing the parties be pleased to make the rule absolute And

(vii) In the interim be pleased to say the operation and effect of the memorandum dated 23.03.2028 till disposal of connected Writ Petition.

And/Or

(viii) Pass any other order/orders as deem fit and proper by this Hon'ble Court.

After hearing the learned counsel for the parties, the learned

Single Judge has observed in the following manner while dismissing the

petition of the petitioner:

"[6] Having applied that golden scale, it is clear that the respondent No. 4 is older than the petitioner and moreover, the respondent No.4 had joined earlier than the petitioner. In this regard, there is no controversy. As such, this court can safely state that there is no infirmity in preparing the combined final seniority list of the posts of Assistant Director (Employment) and the Employment Officer (Special) working under the Directorate of Employment Service & Manpower Planning, Government of Tripura.

In the result, the writ petition stands dismissed."

Being aggrieved and dissatisfied with the impugned order

dated 11.01.2018, the appellant has preferred the present writ appeal

before this court.

It is the case of the appellant that Tripura Public Service

Commission issued an advertisement for the post of Assistant Director

(Employment) and the Employment (SPL) on 13.03.2008, vide item No.5

and 6 as per notification No.02/2008. The appellant was invited to appear

before the interview board for both the post of Assistant Director

(Employment) and the Employment Officer (SPL) on 04.10.2008. The

appellant was appointed to the post of Employment Officer (SPL) on

25.02.2009. On 22.03.2018, the relative seniority between the appellant

and the respondent No.4 was sought to be determined on the basis on

the basis of their respective dates of joining. Being aggrieved by the

illegal determination of seniority, the appellant challenged the same by

filing a writ petition before the Hon'ble High Court which was registered

as WP(C) No.337 of 2018, on 27.03.2018 which was subsequently

dismissed by the learned Single Judge on 11.01.2021. Aggrieved thereby

the appellant has preferred this appeal before this court.

Mr. A. Pal, learned counsel appearing for the appellant has

contended before this court that the learned Single Judge failed to

appreciate that the appellant and the respondent No.4 were direct recruits

through TPSC and therefore, the conclusion drawn by the learned Single

Judge that seniority has to be determined on the basis of the date of

joining and the age of the candidates is erroneous. He has contended that

the learned Single Judge failed to appreciate that clause 4 of the general

principles for determining the seniority lays down that the relative

seniority of all direct recruits shall be determined in order of merit in

which they are selected for such appointment on the recommendations of

the UPSC or other selecting authority. So the appellant and the

respondent No.4 being direct recruits through TPSC, their determination

of inter se seniority on the basis of date of joining and age is illegal,

arbitrary and unsustainable in law.

Mr. A. Pal has also contended that the learned Single Judge

failed to appreciate that the appellant was late in joining the service

because his previous employer being the Government of Tripura released

him late and the previous employer of the respondent No.4 released him

early which enable him to join early. That being the situation,

determination made on the basis of joining is illegal and arbitrary.

On the other hand, Mr. M. Debbarma, learned Addl.GA while

denying the claim of the appellant has referred to the corrigendum dated

06.04.2018 and the relevant portion is extracted herein :

"...

The Director is Head of Department in consultation with the Secretary of the Department publishing the seniority list that Partha Sarathi Datta, Asst. Director (Employment) is senior to Sri Gautam Majumder, Employment Officer (Special) as opined that the relative seniority in between two officers should be determined on the basis of their joining to their respective post. Thus the matter is disposed off and the seniority list appended."

According to Mr. Debbarma, learned Addl. GA appearing for

the state respondents, it is apparent from the said corrigendum dated

06.04.2018 that Partha Sarathi Datta, Asst. Director (Employment) is

senior to Sri Gautam Majumder, Employment Officer (Special).

Mr. P Roy Barman, learned senior counsel assisted by Mr. S.

Bhattacharjee, learned counsel appearing for the private respondent No.4

has categorically submitted before this court that the notification dated

22.10.2008 only shows that the appellant and the private respondent

No.4 had been recommended to the Government of Tripura, Department

of Labour & Employment as against their post opted by them in pursuant

to the advertisement No. 02/2008 and it is not a seniority list.

In view of the above discussion and having gone through the

record, we are of the view that the appellant has not approached this

court with clean hands. Moreover, the learned single judge has rightly

observed that the analogy in determining the seniority list by the

respondent No.3 (The Tripura Public Service Commission) cannot be

accepted for the simple reason that the said clause 4 can only be applied

when the two persons are appointed on the same post by direct

recruitment but in this case, the petitioner and the respondent No.4 have

been recruited in two different posts. However, for purpose of their

promotion to the post of State Employment Officer, the combined

seniority list has been published showing the respondent No.4 above the

petitioner.

In view of the above, the instant writ petition stands

dismissed. As a sequel, stay, if any, stands vacated. Pending

application(s), if any also stands closed.

                          JUDGE                                                       JUDGE




      Dipak

              Digitally signed by

DIPAK DAS     DIPAK DAS
              Date: 2023.08.11
              16:49:09 +05'30'