Pijush Kanti Sutradhar vs State of Tripura and Others

Heard Mr. D.B. Sengupta the learned senior counsel assisted by Mr. B.N. Majumder, learned Advocate for the petitioner and also heard Mr. S. Chakraborty, the learned counsel for the State respondents.

Upon hearing the learned counsel for the parties and also on perusal of the available materials on records, it appears to me that this matter can be disposed of at this stage considering the simple nature of it and accordingly, this case is hereby disposed of with the following short order.

A simple prayer has been made by the petitioner for a direction to the respondents for filling up the vacant post of Head Clerk under the respondent Department/College in terms of Rules 13 and 14 of the Tripura Educational Institution''s Teacher and other Employees (Terms & Conditions of Service) Rules, 1984, thus promoting the petitioner to the post of Head Clerk by contending, inter alia, that the petitioner is a senior-most U.D. Clerk of Ramthakur College, Agartala in terms of the seniority list dated 12.11.1997 as Annexure-3 to the writ petition.

According to Mr. Sengupta, the learned senior counsel, the post of Head Clerk has been lying vacant with effect from 1st October, 1998 due to superannuation of the incumbent concerned, namely, Shri Nepal Chandra Chanda, Ex-Head Clerk of the College. But the vacancy is not yet filled up as on today, thus depriving the legitimate right of the senior-most incumbent like the present petitioner. It is also submitted by Mr. Sengupta that the Principal of the College concerned had urged the authority concerned for filling up the post of Head Clerk of the said College, Agartala considering the case of the petitioner who is the senior-most U.D.Clerk of the said Institution as seen from the Annexure-4 series. It is contended by Mr. Sengupta, the learned senior counsel that the authority concerned did not pay any heed to the request of the Principal and as such the petitioner has approached this court with this petition. Mr. Sengupta, the learned senior counsel also submitted that two cases which arc similarly situated with the present case have been disposed of by this court vide, the judgment and order dated 19.3.1998 passed in Civil Rule No.298 of 1997 and the judgement and order dated 1st December, 1998 passed in Civil Rule No.355 of 1998 and in terms of the said judgment and orders as in Annexure-5 series, the respondents-State has duly complied with the said related orders and accordingly the authority appointed the petitioners concerned to the promotional posts. The learned senior counsel also relied upon a decision of the Apex Court rendered in Post Graduate Institute of Medical Education & Research, Chandigarh, appellant v. Faculty Association and others and other cases reported in Post Graduate Institute of Medical Education and Research, Chandigarh Vs. Faculty Association and Others, and submitted that there cannot be any reservation in the single post cadre and as such it should be filled up in terms of the related Government Service Rules.

The case of the petitioner is resisted by the state respondents. Mr. S. Chakraborty, the learned counsel appearing for the state respondents submitted that all promotion matters, in other words, the related posts shall be filled up by following the roster points and reservation policy, even in the case of a single post cadre. I am not in agreement with the submission advanced by the learned counsel Mr. S. Chakraborty for the State-respondents for the following reasons:

In a single post cadre, reservation policy cannot be applied through roster or otherwise, as 100% prereservation is not permissible as the earlier decisionof the Apex Court reported in (1997) 6 SCC 283 has been set aside by the Constitution Bench of the Apex Court in the said case i.e. Post Graduate Institute of Medical Education & Research (supra) wherein the Apex Court held, thus:-

In a single post cadre, reservation at any point of time on account of rotation of roster is bound and bring about a situation where such a single post in the cadre will be kept reserved exclusively for the members of the backward classes and in total exclusion of the general members of the public. Such total exclusion of general members of the public and cent per cent reservation for the backward classes is not permissible under the constitutional frame work. Until there is plurality of posts In a cadre, the question of reservation will not arise because any attempt of reservation by whatever means and even with device of rotation of roster in a single post cadre is bound to create 100% reservation of such post whenever such reservation is to be implemented. The device of rotation of roster in respect of a single post cadre will only mean that on some occasions there will be complete reservation and the appointment to such posts is kept out of bounds to the members of a large segment of the country who do not belong to any reserved class, but on some other occasions the post will be available for open competition when in fact, on all such occasions, a single post cadre should have been filled only by open competition amongst all segments of the society. The view taken in Chakradhar case is approved that there cannot be any reservation in a single post cadre. Contrary decisions in Madhav, Brij Lal Thakur and Bageshwari Prasad cases, upholding reservation in a single post cadre either directly or by device of rotation of roster, are not approved The impugned decision in the case of Post Graudate Institute of Medical Education and Research (judgment dated 2.5.1977 in Civil Appeal No.3175 of 1977, reported as batch matter at (1977) 6 SCC 283 cannot also be sustained. It is therefore set aside."

In the instant case the relevant Rules 13 and 14 of the said Act, 1984 are relevant and accordingly, it is also quoted below:-

"13. Every educational institution shall, for the purpose specified in Rule 14, maintain separately seniority lists showing the seniority of the absorbed employees of that institution and notwithstanding anything in these rules, there shall be no common seniority of the absorbed employees of one educational institution with the absorbed employees of any other educational institution.

Where a post in an educational institution is vacant or may fall vacant and is to be filled by promotion, on or after the appointed day, such promotion shall be made from the eligible absorbed employees borne in the seniority lists of that educational institution."

In terms of the Rules 13 and 14 of the Act the promotion to the post of Head Clerk shall be made from the eligible absorbed employees borne in the seniority list of Upper Division Clerks of the Educational Institution concerned. Therefore, this post of Head Clerk shall be filled up in terms of the said Rules 13 and 14 of the Act from amongst the eligible absorbed employee like the petitioner borne in the seniority list dated 12.11.1997 as in Annexure-3.

A bare perusal of the seniority list shows that the petitioner is the senior-most Upper Division Clerk and therefore, his case should be considered for appointment on promotion to the post of Head Clerk: The seniority position of the petitioner is not disputed by the State-respondents and as such it appears to me that the petitioner being the senior-most Upper Division Clerk he should be given appointment to the post of Head Clerk on promotion in terms of the Rules 13 and 14 of the Act, 1984 for which the respondent/concerned authorities are directed to consider the case of the petitioner for promotion to the post of Head Clerk within a period of one month from the date of receipt of this order in terms of the said Rules mentioned above.

This court hopes and trust that certainly, the petitioner should be given appointment on promotion to the post of Head Clerk as early as possible. I made this observation keeping in view of the existing facts and circumstances of the case as the said post of Head Clerk has been lying vacant since 1st October, 1998 in the said Institution/ College.

For the reasons, observation and directions made above, this petition is disposed of. But no order as to costs.