Tripura High Court
Sri Ranjit Kumar Mahishya Das & Others vs The State Of Tripura & Others on 12 January, 2024
Page 1 of 7
HIGH COURT OF TRIPURA
AGARTALA
WP(C) No.418 of 2023
Sri Ranjit Kumar Mahishya Das & others
......... Petitioner(s);
Versus
The State of Tripura & others
.........Respondent(s)
For Petitioner(s) : Mr. B.N. Majumder, Sr. Advocate,
Mr. B. Paul, Advocate.
For Respondent(s) : Mr. Mangal Debbarma, Addl. G.A.
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
Order
12/01/2024
Heard Mr. B.N. Majumder, learned senior counsel assisted by
Mr. B. Paul, learned counsel for the petitioner and Mr. Mangal Debbarma,
learned Additional Government Advocate for the respondents-State.
2. Certain officers holding the post of Assistant Demonstrator (seri)
approached this Court in writ petition seeking consideration of their case for
promotion to the higher post of Sericulture Development Officer (SDO)
claiming that they fulfil the eligibility criteria. The writ petition was dismissed.
Thereafter those petitioners preferred a review petition being Review Pet.
No.38/2018 in which the learned Court was pleased to issue a direction to
constitute a D.P.C. to consider the cases of eligible Assistant Demonstrator
(seri) having minimum ten years of service with the certificate course of
training in sericulture for promotion to the post of SDO (seri) and promote
those who were found suitable for such promotion. The D.P.C. led to promotion
of certain persons to the post of SDO (seri), Group-C, Non-Gazetted, but the
present petitioners were left out though the petitioners were also in the same
cadre and had joined in individual posts between 29.10.1997 to 07.11.1997.
The reason for leaving out these petitioners was that the Recruitment Rules of
1999 were amended in the year 2009 vide notification dated 30.09.2009
[Annexure-2] which enhanced the educational qualification for promotion:
11. In case of recruitment by (A) BY PROMOTION
promotion/deputation/ transfer
(i) From the post of Demonstrator
from which grade promotion/
(Sericulture) having one year‟s Certificate
deputation/ transfer is to be
Course Training in Sericulture from
made
recognized Institute of the Central Silk Board/
State Govt. with H.S.(+2 Stage) Examination
Passed in any stream.
FAILING WHICH
(ii) From the post of Junior Demonstrator
(Sericulture)/ Asstt. Demonstrator (Seri) with
10(ten) years of total Service experience in the
grades having One year‟s Certificate Course
Training in Sericulture from recognized
Institute of the Central Silk Board/ State Govt.
with H.S. (+2 Stage) Examination Passed in
any stream.
(B) FAILING BOTH BY TRANSFER/
DEPUTATION
(iii) By transfer/ deputation from the
analogous posts having at least 10 (Ten) years
experience in Sericulture/ Agriculture
promotional activities under State/ Central
Govt.
12. If a D.P.C. exists what is its Group- „C‟ D.P.C.
composition
13. Circumstances in which public Not applicable
service commission is to be
consulted in making recruitment
Copy to :-
1. The Manager, Printing & Stationary Department, Govt. of Tripura, with request to publish of this
notification in the extra-ordinary issue of the official Gazette.
2. The Under Secretary, G.A. (Confidential & Cabinet), Govt. of Tripura.
3. All Head of Department.
(A. Debnath)
Deputy Secretary to the
Government of Tripura
3. The petitioners did not have the educational qualification of
Higher Secondary i.e. 10+2. They admittedly are Madhyamik pass. Therefore,
they approached this Court in the present writ petition asking upon the
respondents to comply with the judgment and order dated 21.08.2018 of this
Court passed in Review Pet. No.38/2018 and promote them after constituting a
D.P.C. to the post of SDO (seri). They also prayed for a writ of prohibition to
restrain the respondents from acting in furtherance of the notification dated
30.09.2009 i.e. the amended Rules, as petitioners claim to have acquired
eligibility for promotion to the post of SDO (seri) in the year 2007 upon
completion of the qualifying period of ten years of service as per the
un-amended Recruitment Rules dated 08.06.1999. They also prayed for a
declaration that the amended Recruitment Rules dated 30.09.2009 laying down
a higher educational qualification should not apply to the case of the present
petitioners, as they were qualified from before and to consider their cases as per
the mandamus issued by this Court in Review Pet. No.38/2018 to consider the
cases of all eligible persons.
4. Mr. B.N. Majumder, learned senior counsel for the petitioners,
submits that despite existence of vacancies, no promotional exercise was held
since 1997 which denied the chances of promotion to the petitioners when they
became eligible in the year 2007 under the existing Rules of 1999. Since the
amended Recruitment Rules of 2009 make the petitioners ineligible, they have
also sought to lay a challenge to the relevant part of the amended Recruitment
Rules of 2009 which prescribes a higher qualification of Higher Secondary or
10+2 for being considered for promotion to the post of SDO (seri). The
amendment application has been filed after filing of the Counter Affidavit of
the respondents-State where they took a stand that petitioners are ineligible for
being promoted to the post of SDO (seri) in view of the amended Recruitment
Rules of 2009 which lays down a higher educational qualification.
5. Mr. Majumder, learned senior counsel for the petitioner, has made
strenuous efforts to impress this Court that the petitioners ought to have been
considered along with eligible candidates as per the directions issued in Review
Pet. No.38/2018 taking into consideration their educational qualification of
Madhyamik pass under the existing Recruitment Rules of 1999 as, they were
eligible since 1997 for being considered for promotion. The amendment to the
Recruitment Rules in 2009 has completely denied the avenue of promotion to
these petitioners. The delay in conducting the promotional exercise ought not to
defeat a right which has been created in their favour under the existing Rules of
1999.
6. Mr. Mangal Debbarma, learned Additional Government Advocate
for the respondents-State, submits that the principle of law which applies to the
case at hand is the eligibility of the incumbent persons on the date of
consideration. When the directions of this Court in Review Pet. No.38/2018
were being carried out, the petitioners were found not eligible as they lacked
the educational qualification of Higher Secondary or 10+2 as per the amended
Rules of 2009. The attempt to challenge the Recruitment Rules of 2009 at this
belated stage, may not be allowed.
7. I have considered the submission of learned counsel for the parties
and have taken note of the pleadings placed from record. I have also gone
through the relevant amended Rules of 2009 extracted hereinabove.
Be it indicated herein that the claim of the petitioners hinges on the
legal issue as to whether they have a vested right for being considered for
promotion against the vacancies even if they do not fulfill the higher
educational qualification of Higher Secondary/10+2 under the amended Rules
of 2009. The pleadings on record do not show existence of vacancies of the
promotional post of SDO (seri) before 2009, though petitioners contend that no
promotional exercise was held since 1997. However, the existence of vacancies
before 2009 would not improve the case of the petitioners. This issue has been
examined by a three-judge bench of the Apex Court in the case of State of
Himachal Pradesh and Others v. Raj Kumar and others in Civil Appeal
No.9746 of 2011 with other analogous Civil Appeals vide judgment dated May
20, 2022 reported in (2023) 3 SCC 773. The following question was raised for
consideration :
"2. The question is whether appointments to the public posts that fell vacant
prior to the amendment of the Rules would be governed by the old Rules or the
new Rules."
8. Upon consideration of a number of decisions laid down after the
judgment in Y.V. Rangaiah & Ors v. J. Sreenivasa Rao & Ors., (1983) 3 SCC
284 the Apex Court held as under:
"82. A review of the fifteen cases that have distinguished Rangaiah
would demonstrate that this Court has been consistently carving out exceptions to
the broad proposition formulated in Rangaiah. The findings in these judgments,
that have a direct bearing on the proposition formulated by Rangaiah are as
under :
82.1. There is no rule of universal application that vacancies must be
necessarily filled on the basis of the law which existed on the date when they
arose, Rangaiah case must be understood in the context of the rules involved
therein.
82.2. It is now a settled proposition of law that a candidate has a right to
be considered in the light of the existing rules, which implies the "rule in force"
as on the date consideration takes place. The right to be considered for promotion
occurs on the date of consideration of the eligible candidates.
82.3. The Government is entitled to take a conscious policy decision not
to fill up the vacancies arising prior to the amendment of the rules. The employee
does not acquire any vested right to being considered for promotion in
accordance with the repealed rules in view of the policy decision taken by the
Government. There is no obligation for the Government to make appointments as
per the old Rules in the event of restructuring of the cadre is intended for
efficient working of the unit. The only requirement is that the policy decisions of
the Government must be fair and reasonable and must be justified on the
touchstone of Article 14.
82.4. The principle in Rangaiah need not be applied merely because
posts were created, as it is not obligatory for the appointing authority to fill up
the posts immediately.
82.5. When there is no statutory duty cast upon the State to consider
appointments to vacancies that existed prior to the amendment, the State cannot
be directed to consider the cases.
83. The above-referred observations made in the fifteen decision that
have distinguished Rangaiah case demonstrate that the wide principle enunciated
therein is substantially watered-down. Almost all the decisions that distinguished
Rangaiah hold that there is no rule of universal application to the effect that
vacancies must necessarily be filled on the basis of law that existed on the date
when they arose. This only implies that decision in Rangaiah is confined to the
facts of that case.
84. The decision in Deepak Agarwal is a complete departure from the
principle in Rangaiah inasmuch as the Court has held that a candidate has a right
to be considered in the light of the existing rule. That is the rule in force on the
date the consideration takes place. This enunciation is followed in many
subsequent decisions including that of Union of India v. Krishna Kumar. In fact,
in Krishna Kumar Court held that there is only a "right to be considered for
promotion in accordance with rules which prevail on the date on which
consideration for promotion takes place".
85. The consistent findings in these fifteen decisions that Rangaiah case
must be seen in the context of its own facts, coupled with the declarations therein
that there is no rule of universal application to the effect that vacancies must
necessarily be filled on the basis of rules which existed on the date on which they
arose, compels us to conclude that the decision in Rangaiah is impliedly
overruled. However, as there is no declaration of law to this effect, it continues to
be cited as a precedent and this Court has been distinguishing it on some ground
or the other, as we have indicated hereinabove. For clarity and certainty, it is,
therefore, necessary for us to hold:
85.1. The statement in Y.V. Rangaiah v. J. Sreenivasa Rao that, "the
vacancies which occurred prior to the amended Rules would be governed by the
old Rules and not by the amended Rules", does not reflect the correct proposition
of law governing services under the Union and the States under Par XIV of the
Constitution. It is hereby overruled.
85.2. The rights and obligations of persons serving the Union and the
States are to be sourced from the rules governing the services."
9. From the ratio laid down as extracted above, it is clear that there
was no obligation on the part of the State to consider the cases of the petitioners
against the vacancies, if any existing under the un-amended Rules of 1999.
When the case of eligible persons were considered against the vacancies for the
promotional post of Assistant Demonstrator (seri), the petitioners did not fulfil
the higher educational qualification of 10+2 or Higher Secondary as per the
amended Recruitment Rules of 2009. As such, the respondents cannot be
faulted if the petitioners were not promoted due to lack of eligibility in view of
the amended Recruitment Rules of 2009. A candidate has a right to be
considered in the light of the existing Rules, which implies the "rule in force" as
on the date the consideration takes place. The right to be considered for
promotion occurs on the date of consideration of the eligible candidates. There
is no universal rule that vacancies must necessarily be filled on the basis of the
law which existed on the date when they arose. There was no statutory
obligation on part of the respondents-State to fill up the vacancies in a time
bound manner under the pre-existing Rules of 1999 which stood infringed. The
respondents were under no obligation to make appointments as per the old
Rules even if assumingly vacancies existed before 2009.
10. Therefore, in the light of the legal position settled by the Apex
Court in the case of Raj Kumar (supra), this court is of the considered opinion
that the petitioners do not have a legal or vested right to be considered for
promotion to the higher post of SDO (seri). Accordingly, the writ petition is
dismissed.
11. IA No.02/2023 seeking amendment also stands dismissed. Pending
application(s), if any, shall stand disposed of.
(APARESH KUMAR SINGH), CJ
Pijush/ MUNNA SAHA Digitally signed by MUNNA SAHA
Date: 2024.01.29 11:35:49 +05'30'
