The State of Tripura v. Sri Hiralal Hrishidas

Ms. Rajashree Purkayastha, Legal Aid Counsel. For the respondent No.13 : Mrs. S. Deb (Gupta), Advocate. Date of hearing : 19.05.2023 Date of delivery of Judgment & Order :

15.12.2023 Whether fit for reporting : Yes HON’BLE MR. JUSTICE ARINDAM LODH JUDGMENT & ORDER Since common questions of facts and law are involved, these writ petitions were heard together on consent of learned counsel appearing for the parties to the lis and these are taken up for disposal by this common judgment.

2. The facts, in a nutshell, are that the petitioners of both the writ petitions were initially appointed in the year 2000 to the post of Lower Division Assistant/Typist in the Agartala Bench of the then Gauhati High Court (The High Court of Assam, Meghalaya, Nagaland, Manipur, Tripura, Mizoram & Arunachal Pradesh). Since then they had been rendering their services in the Agartala Bench of the then Gauhati High Court and after 12 (twelve) years of their services, they had been promoted to the post of Bench Assistant in the Agartala Bench in the Pay Band-2 of Rs.5,310-24,000/- with Grade Pay of Rs.2,000/- vide notification dated 05.11.2012 [Annexure 2 to the WP(C) No.335 of 2021] & notification dated 16.04.2012 [Annexure 2 to the WP(C) No.177 of 2022] respectively. After a short span, they again had achieved another promotion to the post of Senior Administrative Assistant 6 under the High Court of Tripura after bifurcation from the then Hon’ble Gauhati High Court, in the Pay Band-2 of Rs.5,310-24,000/- with Grade Pay of Rs.2,100/- vide notification dated 06.08.2013 [Annexure-4 to the writ petition No.335 of 2021].

2.1 The petitioners contended that the private respondents namely, Sri Arindam Das, Sri Anil Majumder, Sri Krishnadhan Debnath, Sri Chinmoy Debbarma and Sri Dayasankar Chakma were appointed to the post of Lower Division Assistant/Typist in the Agartala Bench of the then Gauhati High Court with effect from 01.04.2002 i.e. after about two years from the date of initial appointment of the petitioners to the said post of Lower Division Assistant/Typist. Subsequently, the Registrar General, High Court of Tripura vide notification dated 18.02.2016 [Annexure 6 to the writ petition No.335 of 2021] promoted nine persons including the petitioners and the aforesaid private respondents to the post of Head Clerk Grade in the Pay Band-2 of Rs.5,700-24,000/- with Grade Pay of Rs.4,200/- in order of preference therein noting that the same represents their inter se seniority. The notification dated 18th February, 2016 is the main bone of contention of these two writ petitions because the petitioner in WP(C) No.335 of 2021 and the petitioner in WP(C) No.177 of 2022 have been placed at Serial No.8 and 9 respectively in the seniority list i.e. at the bottom of private respondents, which the petitioners have allegedly claimed that they have been superseded by the private respondents.

2.2 Feeling aggrieved by the said seniority position, the petitioners had submitted their representations for correction of their seniority position, but, those were rejected vide communication dated 28.04.2016 [Annexure-9 to the Writ Petition No.335 of 2021] only on the ground that they had poor 7 recordings in their Annual Confidential Reports (ACRs, for short) than that of the private respondents. Having dissatisfied with the said reply dated

28.04.2016, petitioner Sri Abhijit Das had submitted another representation to the Respondents-High Court on 30.12.2020 soliciting his grievances, but, that representation has not been addressed to till today.

2.3 The petitioners have assailed another Notification dated

23.03.2021, issued by the respondents-High Court of Tripura whereunder one of the private respondents, namely, Sri Arindam Das has been again promoted to the post of Superintendent (Group-B Gazetted) regardless of their original i.e. initial seniority position.

2.4 With the aforesaid facts and grievances, the petitioners have presented the above two writ petitions. WP(C) No. 335 of 2021 has been taken up as lead case with the consent of the learned counsels appearing for the parties and for brevity, the reliefs sought for therein may be reproduced hereunder: (i) (ii) the private respondents, “Issue Rule, calling upon the respondents and each one of them, to show cause as to why a Writ of Certiorari and/or in the nature thereof, shall not be issued for directing them, to transmit the records, relevant to the subject matter of this writ petition for rendering substantive and conscionable justice to the petitioner, and for quashing/setting aside the impugned Notification dated 18.02.2016 (Annexure-6 supra) insofar as the same places the petitioner below impugned Communication dated 28.04.2016 (Annexure-9 infra) & the impugned Notification dated 23.03.2021 (Annexure-11 supra); Issue Rule, calling upon the respondents and each one of them, to show cause as to why a Writ of Mandamus and/or in the nature thereof, shall not be respondents, to revoke/rescind the impugned Notification dated 18.02.2016 (Annexure-6 surpa) insofar as the same places the impugned petitioner below Communication dated 28.04.2016(Annexure-9 supra) & the impugned Notification dated 23.03.2021 (Annexure-11 supra), and thereupon, restore the seniority of the petitioner over the private respondents, and grant promotion to him to the post of the private respondents, for mandating/directing issued 8 Superintendent (Group-B Gazetted), with effect from the date of promotion of the private respondent, namely, Sri Arindam Das, with all consequential benefits thereof: to place the petitioner above (ii)(a) Issue Rule, calling upon the respondents and each one of them, to show cause as to why a Writ of Mandamus and/or in the nature thereof, shall not be issued for mandating/directing the respondents the private respondents, thereby interfering with the impugned Notification dated 18.02.2016, impugned Communication dated 28.04.2016 and the impugned Notification dated 23.03.2021, and accord promotion to the petitioner to the post of Head Clerk Grade above the private respondents with all consequential benefits thereof; (ii)(b) Issue Rule, calling upon the respondents and each one of them, to show cause as to why a Writ of Prohibition and/or in the nature thereof, shall not be issued for restraining/prohibiting the respondents, from according any promotion, in favour of the private respondents, in furtherance of the impugned Notification dated 18.02.2016, impugned Communication dated 28.04.2016 and the impugned Notification dated 23.03.2021, till the final decision of this writ petition.”

3. Heard Mr. Somik Deb, learned senior counsel assisted by Mrs. Riya Chakraborty, learned counsel appearing for the petitioners in both the writ petitions. Also heard Mr. B. Nandi Majumder, learned senior counsel assisted by Mr. D.J.Saha, learned counsel appearing for the respondents-High Court; Mr. D. Bhattacharya, learned GA assisted by Mr. D. Sarma, learned Addl. GA appearing for the State-respondents; Mr. Samarjit Bhattacharjee, Mr. Abhijit Sengupta; Ms. Rajashree Purkayastha and Mrs. S. Deb (Gupta), learned counsels appearing for the private respondents.

4. Mr. Deb, learned senior counsel at the time of hearing contended with vehemence that the post of Head Clerk/Accountant is to be filled up by promotion, from the feeder post of Senior Administrative Assistant, on the 9 basis of seniority-cum-merit. Mr. Deb, learned senior counsel reiterated that promotion by applying the principle of seniority-cum-merit would mean that there cannot be any relative assessment of inter se merit, and once, a government servant meets the requisite benchmark, promotion has to be made on the basis of inter se seniority. In the instant cases, the petitioners have been completely superseded by the private respondents merely on the basis of poor ACR rating. He has challenged the legality and validity of the Communication dated 28.04.2016 whereby it has been noted that the Order of promotion was issued, solely on the basis of merit, even though, no statutory rule has been placed on record to substantiate such conclusion. Learned senior counsel had given much emphasis to the Rules 14 & 15 of the High Court of Tripura Services (Appointment, Conditions of Service and Conduct) Rules, 2014 (here-in-after referred to as the ‘Service Rules, 2014’). Drawing attention to Rules 14 & 15 of the Service Rules, 2014 Mr. Deb, learned senior counsel contended that in all grades of the High Court, promotions have been made only on the basis of seniority, and therefore, adoption of such unique process of marks allocated against the ACR gradings for 5(five) years for promotion to the post of Head Clerk Grade has resulted in gross injustice to the petitioners since the principle of seniority-cum-merit has been altered by the principle of merit-cum-seniority, leaving no space for seniority which is contrary to the settled principle of promotion by way of seniority-cum-merit. Mr. Deb, learned senior counsel emphatically confronted the following parameters as fixed by the High Court in contrary to Rule of promotion to the post of Head Clerk Grade, which reads thus: “…As far as the posts which are to be filled in on the basis of seniority-cum-merit are concerned, I feel that it would be proper 10 to allot 25 marks for seniority and 25 marks for merit. The criteria in this regard will be as follows:- As far as merit is concerned, ACRs of each employees for the last five years have been considered. An employee getting overall grading „outstanding‟ will get 5 marks, 4 for „very good‟, 3 for „good‟, 2 for „fair‟ and for „poor‟ 0 marks….” According to learned senior counsel, the High Court, particularly, Hon’ble the Chief Justice arbitrarily exercised his jurisdiction by way of flouting the established rules construing the principles of seniority-cum-merit for the purpose of promotion. In support of his submission, Mr. Deb, learned senior counsel has referred to the following decisions: i. ii. iii. iv. v. (2022) 5 SCC 150 [Rama Negi Vrs. Union of India & Ors.]; (1974) 3 SCC 91[ Haryana State Electricity Board Vrs. State of Punjab & Ors]; (1987) 3 SCC 622 [P.D. Aggarwal & Ors. Vrs. State of U.P. & Ors.]; (1990) 4 SCC 174 [Mahadev Kalekar & Ors. Vrs. State Bank of Hyderabad & Ors.]; (1998) 8 SCC 685 [State of U.P. & Ors. Vrs. Raj Bahadur Singh & Anr.]