Tripura High Court

Sri Prashanta Saha vs The State Of Tripura on 17 April, 2025

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                 HIGH COURT OF TRIPURA
                        AGARTALA

                    WP(C) No.497 of 2023

1. Sri Prashanta Saha,
S/O- Sri Bhupendra Chandra Saha, R/O- Near Shiv Shani Mandir,
Near Bhati Abhoynagar, Agartala, District- West Tripura, Pin-
799002, Aged about-43 years.
2. Sri Manoj Sarma,
S/O- Sri Sushil Ranjan Sarma, R/O-Nalgaria, Ranirbazar, District-
West Tripura, Pin-799035, Aged about- 40 years.
3. Sri Amardip Debbarma,
S/O- Sri Anada Debbarma, R/O-Gurkhabasti, P.O- Kathalbagan,
Agartala, District- West Tripura, Pin-799006, Aged about- 42
years
4. Sri Sudip Debnath,
S/O- Late Jatindra Chandra Debnath, R/O- Nutan Nagar, P.O-
Agartala, P.S- Airport, District-West Tripura, Pin- 799009, Aged
about- 44 years.
5. Sri Arup Laskar,
S/O- Bibhuti Bhushan Laskar, R/O-Jagaharimura, Agartala,
District- West Tripura, Pin-799004, Aged about- 44 years
6. Sri Anwesh Choudhury,
S/O- Bibhuti Bhushan Choudhury, West Gobindapur, P.O+P.S-
Kailasahar, P.S-Unakoti Tripura, Pin- 799277, Aged about-38
years.
7. Sri Tarak Lal Saha,
S/O- Late Jaglal Saha, R/O-Jagaharimura, Gourbari Lane,
Agartala, District- West Tripura, Pin-799004, Aged about- 47
years
8. Sri Bhaskar Roy,
S/O- Sri Bena Bhushan Roy, North Gobindapur, P.O+P.S-
Kailasahar, P.S- Unakoti Tripura, Pin-799277, Aged about - 39
years
9. Smt. Sumitra Biswas,
W/O- Sri Dibakar Nath, Flat No.2-D, Roodraksh Dinesh Palace,
Joynagar Road No.6, P.O-Agartala, P.S- West Agartala, District-
West Tripura, Pin: 799001, Aged about- 39 years.
                                                ....Petitioner(s)
                            Versus
1. The State of Tripura,
Represented by its Secretary, Department of Power, Government
of Tripura, P.O-Secretariat, P.S- New Capital Complex, Dist:-
West Tripura, Pin-799010.
2. The Tripura State Electricity Corporation Limited,
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Represented by its Managing Director, Bidyut Bhawan,
Banamalipur, P.O- Agartala, P.S- West Agartala, Dist-West
Tripura, Pin- 799001.
3. The Chairman,
Tripura State Electricity Corporation Limited, Bidyut Bhawan,
Banamalipur, P.O- Agartala, P.S- West Agartala, Dist- West
Tripura, Pin- 799001.
4. The Managing Director,
Tripura State Electricity Corporation Limited, Bidyut Bhawan,
Banamalipur, P.O-Agartala, P.S- West Agartala, Dist- West
Tripura, Pin-799001.
5. Tripura Public Service Commission,
Represented by its Secretary, having office at Akhaura Road, P.O-
Agartala, P.S- west Agartala, District- West Tripura, Pin-799001.
6. The Secretary, G.A (P&T) Department,
Government of Tripura, New Secretariat Building, P.O-
Secretariat, P.S-New Capital Complex, District- West Tripura, Pin-
799010.
7. The Secretary,
Finance Department, Government of Tripura, New Secretariat
Building, P.O- Secretariat, P.S-New Capital Complex, District-
West Tripura, Pin-799010.
8. The LR and Secretary (Law),
Law department, Government of Tripura, New Secretariat
Building, P.O-Secretariat, P.S- New Capital Complex, District-
West Tripura, Pin-799010.
                                           ....Respondent(s)

For the Petitioner(s) : Mr. Arijit Bhaumik, Advocate For the Respondent (s) : Mr. M. Debbarma, Addl. GA Mr. N. Majumder, Advocate Date of hearing : 16.01.2025 Date of delivery of Judgment & Order : 17.04.2025

Whether fit for reporting : No

HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA JUDGMENT & ORDER

All the petitioners were working as Manager Grade-A

(Degree holders) under Tripura State Electricity Corporation Ltd.

(for short, 'TSECL') and they were recruited in the said post

directly in the year 2008. According to them, their Recruitment

Rules have been finalized and they became eligible for promotion

to the immediate higher post of Senior Manager (Electrical) long

ago, but despite completing 15 years of service, no promotional

exercise has been conducted by the concerned respondents and,

therefore, this writ petition has been filed seeking the following

reliefs:

"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 the seniority list of Manager Grade-A (Degree Holders) under the Tripura State Electricity Corporation Limited shall not be finalised within a time frame.

AND Issue rule calling upon the Respondents to show cause as to why the pre promotion exam/departmental exam of the petitioners shall not be conducted within a time frame.

AND Issue rule calling upon the Respondents to show cause as to why the promotion exercise for the post of Senior Manager(electrical) from the post of Manager Grade-A (Degree Holders) initiated vide Annexure 24, 25 and 26 shall not be brought to its logical conclusion by recommending the petitioners for promotion to the post of Senior Manager (Electrical) under the Respondent Corporation upon finalisation of the seniority list and conducting pre promotion exam/departmental exam in terms of the prayer above within a time frame.

IV. And after hearing the parties be pleased to make the rule absolute.

AND/OR Pass any other order/orders as deemed fit and proper"

2. According to the Petitioners, as per the Recruitment

Rules, 45 posts are required to be filled up by way of promotion

from Degree Holder Engineers having minimum three years of

service experience in the post of Manager, Grade-A (Electrical)

under TSECL and as per Clause 13(ii) of said Recruitment Rules,

selection for such promotion shall be done through interview with

the Selection Committee and candidates will be called for

interview by the Selection Committee as per the Seniority List,

provided that, the candidate must pass Departmental Exam

(Written Test) conducted by some professional agency or firm on

behalf of TSECL, with the concurrence of Managing Director of

TSECL.

3. Mr. Arijit Bhaumik, learned counsel submits that

petitioner nos.1, 4, 6, 7, and 9 have appeared and cleared such

pre-promotional examinations conducted by TPSC in the year

2012 and 2015 and petitioner nos.2, 3, 5 and 8 could not get any

scope to appear in such examination inasmuch as no

departmental examination has been conducted by the department

since the year 2021. Mr. Bhaumik, learned counsel also submits

that at least 106 posts of Senior Manager (Electrical) are lying

vacant and vide memorandum dated 31.03.2023, a Performance

Evaluation and Recommendation Committee for ad-hoc promotion

was constituted in consonance with the policy decision of the

State to allow one time ad-hoc promotion issued vide Notification

No.F.2(24)-GA(P & T)/2021 dated 22.06.2021 issued by General

Administration (Personnel & Training) Department, Government

of Tripura, but after that the respondents were sitting over the

promotional exercise.

4. Mr. Bhaumik, learned counsel also refers to a minutes

dated 28.07.2021 (Annexure-23) issued by Additional Secretary

(Power), Govt. of Tripura wherein it was decided that ACRs of

different categories of employees of Power Department shall be

collected, vigilance clearance report shall be obtained in

prescribed format and updated seniority list shall also be

prepared. It was also further noted in the said decision that as

Service Rules of TSECL recruited employees were not yet

framed/approved, TSECL may propose for adoption of Tripura

Power Engineering Service(TPES) Rules as amended up-to-date

for its engineering officials and existing Service Rules of PWD for

its ministerial employees to facilitate extending of the benefit of

Promotion Policy of 2021 to all categories of TSECL recruited

employees and it was also urged that entire process of promotion

proposal of all categories of employees shall be completed by

31.08.2021, but despite the same, the department was sitting

over the same.

5. Thereafter, vide memorandum dated 21.03.2023,

Vigilance Clearance Certificates of Manager, Grade-A (Degree

holders) were called for and vide memorandum dated 31.03.2023

a Performance Evaluation and Recommendation Committee for

ad-hoc promotion was also constituted. By issuing another

memorandum dated 31.03.2023 one Promotion Committee was

also constituted. The Performance Evaluation and

Recommendation Committee was to act as a panel for checking

and verifying the updated seniority list, performance appraisal

report, vigilance integrity certificate, etc. of eligible candidates for

ad-hoc promotion and it was also further provided that said

committee would recommend the list of eligible employees for ad-

hoc promotion to the Promotion Committee and the entire

process was to be completed by 05.04.2023. However, as no

progress was made thereafter, the present writ petition was filed.

6. Mr. Bhaumik, learned counsel submits that so far the

prayers relating to finalization of seniority list and holding of pre-

promotional examination were concerned, same was already

mitigated. Therefore, the writ petitioners are now pressing only

the last relief, i.e., for completing the promotional exercise for

filling up the post of Senior Manager, Grade-A as indicated above.

7. Mr. Bhaumik, learned counsel also relies on a decision

of Hon'ble Apex Court in the case of Nagpur Improvement

Trust vs. Yadaorao Jagannath Kumbhare & Others, (1999)

8 SCC 99, wherein it is observed that it is the general principle of

service jurisprudence that in the absence of any statutory rules

governing service conditions of the employees, the executive

instructions and/or decisions taken administratively would

operate in the field and appointments/promotions can be made in

accordance with such executive instructions/administrative

directions.

8. Mr. Bhaumik, learned counsel also further relies on

another decision of the Hon'ble Apex Court in the case of State

of Orissa and Ors vs. Mamtarani Sahoo and Anr., (1998) 8

SCC 753, where in similar line, the said principle was reiterated

that till the statutory rules are framed, the Government can issue

administrative instructions regarding principles to be followed in

promotions of the officers concerned to the selection grade posts.

It has also further been observed that though the Government

cannot amend or supersede statutory rules by administrative

instructions, but if the rules are silent on any particular point, the

Government can fill up the gaps and supplement the rules and

issue instructions not inconsistent with the rules already framed.

9. Learned Addl. GA, Mr. M. Debbarma referring to an

additional affidavit submitted by the State-respondent no.1

contends that both matter of creation of 45 (forty five) numbers

of new post of Senior Manager (Electrical) and finalization of draft

Recruitment Rules for these posts are pending with the

Government. However, obtaining approval from the Government,

next course of ad-hoc promotion would be taken up by the

concerned authority. Basic challenge of learned Addl. GA, Mr.

Debbarma is that in the absence of any Recruitment Rules,

promotional exercise cannot be done and moreso, new posts are

required to be created.

10. Mr. N. Majumder, learned counsel for the respondents-

TSECL also submits in the same tune and challenges the claim of

the petitioners that in absence of vacant posts and also due to

non-finalization of Recruitment Rules, the department is not in a

position to complete the promotional exercise.

11. So far as the challenge regarding non-creation of post

is concerned, it appears from notification dated 28.03.2023

(Annexure-11) issued by TSECL that already 45 (forty five)

numbers of posts of Senior Manager (Electrical) for Degree Holder

Engineers are created, therefore, such plea of the respondents is

not maintainable. Mr. Bhaumik, learned counsel already relies on

another document as discussed earlier i.e. minutes dated

28.07.2021 (Annexure-23) wherein the Power Department,

Government of Tripura already decided that as the Service Rules

of TSECL recruited employees were not yet framed/approved,

TSECL may propose for adoption of Tripura Power Engineering

Service (TPES) Rules as amended up-to-date for its engineering

officials in the existing Service Rules of PWD for its ministerial

employees by the TSECL Board of Director to facilitate extending

the benefit of 'Promotion Policy, 2021' to all categories of TSECL

recruited employees. Therefore, non-framing of rules cannot be a

hurdle for the department to do such exercise for filling up the

post of Senior Manager, Grade-A (Degree Holders). The relevant

portion of that decision of State Government is extracted

hereunder:

"8. As the Service Rules for TSECL recruited employees are not yet framed/approved, TSECL may propose for adoption of Tripura Power Engineering Service (TPES) Rules as amended up-to-date for its Engineering Officials and existing Service Rules of PWD for its ministerial employees by the TSECL's Board of Directors to facilitate extending the benefit of "Promotion Policy, 2021" to all categories of TSECL's recruited employees.