Arunoday Barman vs The State of Tripura and Others

Manisana, J.—By this application under Article 226 of the Constitution of India, the Petitioner challenges the promotion of Respondents 6, 8 and 14 to the posts of Divisional Forest Officer (DFO) and prays for the issue of an appropriate writ or order to promote the Petitioner to the post of DFO with effect from 13,7.1964 with consequential monetary benefits and fixing the relative seniority between the Petitioner and the other DFOs.

The Respondents 6.8 and 14 were appointed on promotion to the posts of DFO under orders dated 13.7,1964, 7.7.1964 and 20.1.1974 respectively. The Petitioner was appointed to the post of Forester Grade II with effect from 29.10.1954. He had been confirmed as Forester Grade II with effect from 29.6.1957. The Petitioner underwent the course of Forest Ranger''s training and on his successful completion of the training be was promoted to Forest Ranger with effect from 6.10.1962. The Petitioner was also promoted to DFO on 5.11.1975.

Under the Recruitment Rules for the post of Divisional Forest Officer under the Forest Department, Tripura Administration, for short the "Rules'''', one of the methods; of the appointment to the post of DFO is by promotion. The grade from which promotion to be made is "Forest Rangers (with about 10 years service in the Forest Department)". Age and educational qualifications prescribed for the direct recruit will not apply in the case of the promotion. But only those having Ranger''s training will be eligible for the promotion.

The case of the Petitioner is that when the Respondent 6 M.K. Biswas was promoted to DFO on 13.7.1964, the Petitioner was a Forest Ranger and had served about 10 years in the Forest Department, about 2 years as Forest Ranger and about 8 years as Forester Grade II. Under the Rules, the ten-year service is the total length of service put in not only as a Forest Ranger but also as Forester Grade II, and not the ten year service as a Forest Ranger, Therefore; under the Rules be was eligible for consideration for promotion to DFO. But his case was not considered when the Respondent 6 was promoted. Similarly, when the Respondents 8 and 14 were promoted to DF Os, his case was not considered although he had already bad the required length of service and the Ranger''s training. Further the case of the Petitioner is that the Respondent 6 was not eligible when he was promoted to DFO as he bad served only 9 year and 6 days in the Forest Department.

The contention of the Respondents is that the Petitioner was appointed to the post of Forest Ranger w.e.f. 6.10.1962. Therefore, he did not complete the ten-year service as Forest Ranger when the Respondents 6 and 8 were promoted on 13.7.1964 and 7.7.1966 respectively, The Rules provide that the Petitioner must have served about ten years as a Forest Ranger in the Forest Department. When the Petitioner became eligible, his case was considered for promotion to DFO.

The question which now arises for consideration is whether the expression "about 10 years service" appearing in the Rules refers to the service put in as a Forest Ranger, or to the total length of service as submitted by the Petitioner.

A plain reading of the Rules shows that the expression "about 10 years service'''' refers to the service put in as a Forest Ranger, and not the total length of service as submitted by the Petitioner. If the contention of the Petitioner is accepted, it would defeat the intent and object of the Rules. A'' already stated, the Rules provide that only those Forest Rangers having Ranger''s training will be eligible for promotion. This shows that the intent and object is the experience of working as a Forest Ranger for recruitment by promotion to the higher post of DFO. Therefore, we conclude that the length of services as provided under the Rules is the length of service as the Forest Rangers.

In the light of the above discussion, let us now examine the case in band. The admitted seniority list of the Forest Rangers dated 27.5.1964 (Annexure ''E'' to the petition) shows that the Petitioner was promoted to the post of Forest Ranger on 6,10.1962; and that the Respondent 6 M.K. Biswas was appointed as Forest Ringer on 7.7.1955. Therefore, when Respondent 6 was promoted to DFO on 13.7.1964; be bad served 9 years 6 days, and the Petitioner bad served as a Forest Ranger for about 1 year and 8 months. The seniority list further shows that Respondent 8 R. Dutta was appointed on 4.7,1955 to the post of Forest Ranger and he was promoted to DFO on 7.7.1966. Therefore, when the Respondent E was promoted on 7.7.1966, he has served about 11 years, and the Petitioner had served as Ranger for about 3 years and 9 months. Therefore, the Petitioner was not eligible for consideration for promotion to DFO as he was not having the necessary length of service as Forest Ranger. In this view of the matter, the Petitioner has no right to challenge the appointments of Respondent 5 M,K. Biswas and Respondent 8, R. Dutta on the grounds stated by the Petitioner, and the appointments of Respondents 6 and 8 cannot be disturbed.

With regard'' to the promotion of the Respondent 14, S.B. Bbattacharjee, in the counter of the Respondent 1 State, Respondent 2 Secretary, Forest Department, and Respondent 4 Chief Conservator, it is stated:

It is denied and disputed that the name of the Petitioner was not forwarded before the DPC when he was eligible with requisite documents.

The statement above shows that the name of the Petitioner was sent to the D.P.C. for consideration after be had served 10 years as Forest Ranger in the Department. But the certified copy of the minutes (Annexure ''M'' to the further-affidavit of the Petitioner) does not show that the name of the Petitioner was forwarded to the D.P.C. for consideration and that the case of the Petitioner was considered and he was found un6t. The minuses further show that they are not really minutes of the D.P.C. they are office notes for approval of the D.P.C. for promotion of the Respondent 14 S.B. Bhattacharjee. The last portion of the notes run:

The member of the D.P.C. may kindly concur for promotion of Shri S.B. Bhattacharjee, Senior Forest Ranger to the post of Divisional Forest Officer.

The members of D.P.C. simply approved the above note. Therefore we conclude that the case of the Petitioner was never sent for consideration in the year 1974 and that the case of the Petitioner was pot considered when the Respondent 14 was promoted to D.F.O. on 20.1.1974. On 20.1.1974, the Petitioner bad served more then 11 years as Forest Ranger and was having the required qualifications for consideration for promotion, if he be within the zone of consideration.

The next question is whether the Petitioner was within the zone of consideration when the Respondent No. 14 S.B. Bbattacharjee was promoted to D.F.O. on 20.1.1974.

The Petitioner has stated that tinder the instruction or practice, eligible officers to be included in the panel for consideration for promotion should be 5 or 6 time of, or, more than the number of vacancies expected to be filled up within a year. The state has not refuted the contention of the Petitioner. The state, however, has stated that in the year, 1974, the Petitioner and other Forest Rangers at Serial Nos. 2, 5, 8, 9, 10, 11, 12 and 13 in the Seniority list of the Forest Rangers as on 1.1.1973 (Annexure R-4 to the Counter of the State) were eligible for promotion to D.F.O. (Page 21 of the Written Argument). In the said seniority list of the Forest Rangers as on 1.1.1973, the names of the Respondent 14 S.B. Bbattacharjee, the Respondent 19 B.M. Deb, and the Respondent 20 J.L. Dutta are at Serial Nos. 1, 2 and 5 respectively. The name of the Petitioner is at serial No, 7. Therefore, the Petitioner was the 4tb person amongst the eligible persons and was within the zone of consideration when the Respondent 14 was promoted.

The grievance of the Petitioner is that be bad a fundamental right of being considered for promotion when others similarly situated were so considered and that if he was not considered in a situation like that be was discriminated against and was denied equality of opportunity. lo State of U.P. v. Ram Gopal AIR 1981 SC 1041, the Supreme Court has held that in such a case if such grievance is factually correct, it must be held to be well founded. In this view of the matter, when the Respondent No. 14 was promoted to D.F.O, the case of the Petitioner was not considered although be was within the zone of consideration and as such be was discriminated against and was denied equality of opportunity.

The Respondents have raised an objection that the petition is to be rejected on the ground of delay. The learned Advocate General Tripura has referred us to the decisions of the Supreme Court as reported in P.4, P.S. Sadasivaswamy Vs. State of Tamil Nadu, ; N.S. Mehta and Others Vs. Union of India (UOI) and Others, ; Roshan Lal and Ors. v. International Airport Authority of India and Ors. AIR 1981 SC 59 ; and Lehna Singh and Others Vs. Punjab State and Others,

In P.S. Sadasivaswamy Vs. State of Tamil Nadu, the Supreme Court held:

A person aggrieved by an order promoting a junior over his head should approach the Court at least within 6 months or at the most a year of such promotion.... But it would be a sound and wise exercise of direction for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the court to put forward state claims and try to unsettle settled matters.

In N.S. Mehta v. Union of India AIR 1977 SC 1973, the Supreme Court held:

This Court has also explained in Joginder Nath v. Union of India (1973) 2 SCR 553 : 1975 Lab I.C. 547 and Amritlal Barry v. Collector of Central Excise New Delhi (2975) 2 SCR 960 : 1975 Lob I.C. 363 the principles on which this Court will interfere under Article 32 of the Constitution for an alleged violation of Articles 14 and 16 of the Constitution. It is also explained there how delay in invoking the jurisdiction of the Court, which. may create equitable rights of others, may give rational grounds for discrimination so that it would cease to be a case of any violation of Articles 14 and 16 at all. We think that the principles laid down in the eases mentioned apply here.

In Roshan Lal AIR 193J SC 597, the Supreme Court held:

The Respondents were appointed as Airport Officers in 1975 and the present writ petitions were filed in 1978. We do not think we will be justified in reopening the question of the legality of the appointment of Respondents as Airport Orricers several years after their appointment. We also notice that prayer in the Writ Petitions also is confined primarily to the seniority list and consequences flowing (sic) form the seniority list.

In Lehna Singh and Others Vs. Punjab State and Others, , it bas held:

The remedy under Article 266 of the Constitution is discretionary and has to be exercised on just and equitable grounds. In view of the leches on the part of the Petitioners, I am not inclined to quash the appointment of Amar Kant as District Public Relations Officer/Public Relations Officer particularly because the quashing of that order after the lapse of more than eight years will cause a very great hardship to bin and will also costs complications for him and Respondents No. 1 and 2.

In P.B. Roy Vs. Union of India (UOI), the Supreme Court has hold that the rule that delay may defeat the rights of the party need not be applied if his case is positively good. In Ramchandra Shankar Deodhar and Others Vs. The State of Maharashtra and Others, the supreme Court bas held that the rule which says that a Court nay not inquire into belated or stale claims is not a rule of law but a rule of practice based on squad and proper exercise of discretion; and there is no inviolable rule that whenever there is delay the Court must necessarily refuse to entertain the petition. The question is one of discretion, to be followed on the facts of each case.

In Tilokchand and Motichand and Others Vs. H.B. Munshi and Another, the Supreme Court bas observed that the question is one of the discretion. It is to be followed from case to case. There is no lower limit, and there is no upper limit. If will all depend on what the breach of Fundamental Right and the remedy claimed are and bow delay arose,

In G.P. Doval and Others Vs. Chief Secretary, Government of U.P. and Others, the Supreme Court did not throw out the petition filed after 12 years on the ground of delay, laches and acquiescence in the context of that case.

The above decisions of the Supreme Court; show that the delay has to be explained to the satisfaction of the Court; and that the question is one of discretion to be exercised on the facts of each case; and that there is no lower or upper limit; and that the delay depend on what breach of the fundamental right and the remedy claimed are and how the delay arose.

In the light of the above decisions let us now examine the case in hand. The Petitioner has stated in his petition that respond ant 5 gave him to understand that his case was placed before the DPC when the case of the Respondents 6, 8 and 14 were considered and that be could not be promoted. The Respondents have denied this part of statements in their counters. However, the Respondents 5 has not come forward to refuse the allegation. Be that as it may, the Petitioner came to know the existence of the minutes of the DPC in December, 1980 while he was performing his official duties in persuing the record of the T.S. No. 68 of 1978 in the court of Sadar Munsiff, Tripura. The said minutes were submitted by the Government in connection with the said T.S. No. 68 of 1978. The Petitioner filed writ petition on 24.2.1981. The Petitioner could not have access to the records containing the minutes. He submitted representation on 11.9.1978 (Annexure-N) after the promotion of the Respondent 14 for his promotion while be did not get promotion. The representation did not yield any response, reply or relief. Coupled with the fact, the Petitioner belongs to cadre of service, therefore, it is not difficult to visualise that be might find extremely difficult to rush to the Court without the material which he came to know later on after seeing the proceedings of the minutes. Therefore, all the reliefs claimed by the Petitioner can not be defeated on the ground of delay on the facts and circumstances of the case.

The next question is about the relief to be granted to the Petitioner.

In District Registrar Palghat v. M.B. Kottyakutty AIR 1979 SC 1060 : 1979 SLJ 278, the Supreme Court has held that in the peculiar circumstances of the case, it was proper for the High Court to issue positive direction requiring the Government to promote the Respondent to the upper Division and thereafter to determine his rank in the cadre of Upper Division Clerks. In the context of that case, the Supreme Court directed to'' promote the Respondent. But the Supreme Court further has observed that ordinarily, the Court does not issue a direction in such positive term.

In S. Krishna Murty v. General Manager, S. Railway AIR 1977 SC 1868, the Supreme Court directed the authority to promote the Petitioner from the date of the writ petition and to pass suitable order in regard to his salary and seniority.

In the above two decisions of the Supreme Court there was a clear case for direction for promotion of the aggrieved officer. In the present case, it is a case of consideration for promotion to a selection post of DFO along with other Rangers similarly situated.

In State of Mysore and Another Vs. Syed Mahmood and Others, the Supreme Court directed the State Government to consider whether Syed Mahmood and Rao should have been promoted to the posts of senior statistical assistants on the relevant dates when officers Junior to them were promoted, and if so, what consequential monetary benefits should be allowed to them.

Similarly in State of Mysore v. P.N. Nanjundiah AIR 1969 NSC 38 : (1969) 3 SCC 623, the Supreme Court held:

In the circumstances we consider that the proper course is to issue a direction to the Appellants to consider whether Respondent No. 1 should have been promoted to the post of Overseer with effect from December 1, 1961 and as a Supervisor with effect from April 1, 1963, what should be the relative seniority between Respondent No. 1 and Respondent No. 2 and what consequential benefit should be allowed to Respondent No. 1.

In State of Mysore Vs. C.R. Sheshadri and Others, the Supreme Court has held that promotion to the next grade is not a matter of right. The Court can only issue a direction to the Government and cannot substitute its own order for that of the Government. The proper direction can be only that the Government will reconsider the case of the Petitioner afresh for purpose of notional promotion. If the service rule entitles him to promotion on the ground of seniority alone, the promotion may be as a matter of course. However, if the criteria for promotion is one of seniority-cum-merit, comparative merit may have to be assessed.

Turning to the present case, it has also already been concluded that the promotion of Respondents 6 and 8 cannot be disturbed. Respondent 5 had retired from the service. The Petitioner was promoted to DFO on 5.11.1975. Respondent 14 was appointed on 20.1.1974. The writ petition was filed on 24.2.1981. On over all considerations of the case, promotion of the Respondent 14 to DFO cannot be quashed after more than 12 years.

In view of the above decisions of the Supreme Court, we are of the view that the correct procedure for us is to issue a writ to the State Government compelling it to perform its duty end to consider whether having regard to his seniority and fitness the Petitioner should have been notionally promoted on 20.1.1974 and so what consequential benefits should be allowed to him. The State Government would upon such consideration be under the duty to promote him as from 20.1.1974 notionally, if he was then fit to discharge duties of the higher posts, and if the Government fails to perform its duties or if on such examination the State Government arbitrarily refuses to promote him, the Court may direct the State to promote him as from a date when the Petitioner become suitable to be promoted.

In the result, we allow the petition partly. We direct the State Government, in the light of the above observations, to consider whether the Petitioner Arunoday Barman should have been promoted to the post of Divisional Forest Officer on 20.1.1974 when the Respondent 14 S.B. Bbattacharjee was promoted and if so, what consequential monetary benefits should be allowed to him and what should be the relative seniority as between the Petitioner und the Respondents who have been appointed to the posts of Divisional Forest Officer. No costs.