Swadash Ranjan Roy vs State of Tripura and Others

D. Biswas, J.—This writ petition has been preferred for direction to the Respondents to consider the case of the Petitioner for promotion to the post of Assistant Director, Food and Civil Supplies with effect from the date his junior Shri Jotinmoy Ghosh Respondent No. 6 was promoted and also for payment of arrears of pay and allowances. In addition, the Petitioner prays for issue of a writ of quo warrant for removal of Shri A.B. Dutta, Additional Director and Shri A.K. Sen, Joint Director from the respective posts. The Petitioner further prays for payment of charge allowance for holding the post of Assistant Director.

The Petitioner on appointment joined the department of Food and Civil Supplies as Inspector on 3.1.1963 and in due course, was promoted to the post of Chief Inspector in 1930, Thereafter, he was given adhoc promotion to the post of Sub-Divisional Controller vide Notification dated 1.4.1987 and since then he has been discharging his duties as Sub-Divisional Controller with extension of his adhoc promotion from time to time with posting at different places.

The Petitioner while working at Agartala was posted to Subroom vide Notification dated 2.8.1989 (vide Annexure-3) and was directed to relieve Shri Ajit Kumar Bhattacharjee Assistant Director, Subroom and accordingly, the Petitioner relieved Shri Bhattacharjee on 31.1.1989 and since then, the Petitioner has been discharging duties as Assistant Director at Subroom, Although the Petitioner submitted representation claiming payment of enhanced salary/charge allowance for holding the post of Assistant Director, but the Respondents maintained silence although without disposing of the said representation.

The other part of his case is that in 1937 all the posts of sub-divisional Controller in Sub-Divisional Headquarters were upgraded and re-designated as Assistant Director. On such up gradation 10 officers of the rank of Sub-divisional Controller were appointed as Assistant Director in different Divisional Headquarters including Subroom vide order dated 2.12,1987 (vide Annexure-7). After this up gradation, the Petitioner who was holding the office of the Assistant Director at Subroom was transferred to Central Stores at Agartala as Sub-Divisional Controller and again he was transferred back to Subroom in the said capacity vide order dated 2.8.1989 (vide Annexure-3). The Petitioner assails this order of transfer which, according to him, is contrary to the Notification dated 2.12.1987 (Annexure-7). According to him, the Respondents could not issue such an order posting him as Sub-divisional Controller at Subroom in view of the fact that the post of Sub-divisional Controller at Subroom was also upgraded and re-designated as Assistant Director as per Notification dated 2.12.1987. Hence, the Petitioner claims charge allowance for holding the charge of the post of Assistant Director at Subroom from 31.8.1989 till the date he was working as such.

The next contention of the Petitioner is that as per provisions of the Recruitment Rules framed under Article 309 of the Constitution, he ought to have been considered for promotion to the post of Assistant Director as he is eligible to such promotion on completion of 3 years of service as Sub-divisional Controller. But the Respondents, instead, of promoting the Petitioner, vide notification dated 30.7.1991, promoted Shri Jotinmoy Ghosh-Respondent No. 6, an officer junior to him. The representation submitted by the Petitioner through his Advocate did not yield any result although the Petitioner is otherwise entitled to the said promotion.

The last grievances of the Petitioner is that the provisions incorporated in Recruitment Rules provides for appointment to the post of Additional Director and Jt. Director by promotion from amongst the officers in the next lower grade of the services. But such posts were filled up by the Respondents on deputation of the officers from Tripura Civil Service in total disregard to the provision of the Recruitment Rule. According to the Petitioner, the appointment of Respondents 4 and 5 is, therefore, illegal and unsustainable.

I have heard the argument advanced on behalf of both the parties and also perused the documents on record and the relevant file relating to the promotions made in the department.

In the counter affidavit file by the Respondent-State it has been pleaded that the Petitioner was transferred to Subroom as Sub-Divisional Controller as the said post was lying vacant and he was never directed to take charge of the post of Assistant Director. Therefore, the Petitioner is not entitled to any additional pay or charge allowance as claimed by him, While admitting the creation of 10 posts of Assistant Director by way of up gradation and consequent promotion of 10 officers, the Respondents denied the contention of the Petitioner that Sub-divisional Headquarters are to be meant by Assistant Directors only. According to them, six sub-divisional Headquarters are manned by Officer of the rank of sub-divisional Controller and not by Asstt. Director. It is further submitted that Shri Jotinmoy Ghosh, an officer junior to the Petitioner, was appointed as Assistant Director on ad hoc basis when the case of the Petitioner for promotion could not be finalised as a disciplinary proceedings was being contemplated against him. The Government''s stand on filling up of the post of Jt. Director and Dy. Director is that for want of suitable officers from the cadre, they had to man the posts by drawing officers from Tripura Civil Service on deputation.

First, I would like to dispose of the claim of the Petitioner for enhanced pay or the charge allowance for holding the post of Assistant Director at Subroom as alleged. It would appear from Annexure-1 that the Petitioner and another officer holding rank of Chief Inspector were appointed temporarily on adhoc basis to the post of sub-divisional Controller for a period of 6 months from the date of taking over charge. As directed, the Petitioner on such adhoc promotion joined the post of sub-divisional Controller at Amarpur. By Annexure-2 issued on 25.11.1989, the said adhoc appointment of the Petitioner was extended for a period of 6 months with effect from 1.9.1989. Annexure-3 is the transfer order dated 2.8.1989 by which the Petitioner was transferred to Subroom. From the purpose of deciding the claims of charge allowance/Additional pay, the operative portion of the transfer order is reproduced below:

In the interest of public service, the Governor is pleased to order the transfer and posting of the following Assistant Director/Sub-divisional Controller, Food and Civil Supplies Department with immediate effect and until further orders:

Name and designation from to

2, Shri Swadesh Roy Sub-divisional Controller of Food and Civil Supplies Central Stores Agartala Subroom

Sri Ajit Bhattacharjee Asstt. Director of Food and Civil Supplies. ............ Subroom S.D/O. office Sadar

Sd/- illegible Jt. Secretary to the Govt. of Tripura Copy to:

..........

(22) Shri Swedesh Ranjan Roy, Sub-Divisional Controller Food and Civil Supplies, office of the S.D.O. Dharmanagar, HQ will be relieved from Shri Rama Kanta Datta appointed as Sub-divisional Controller vide notification No. F. 1(45)"FSD/79 dated 2.8.1989.

(23) Shri Ajit Bhattacharjee Asstt. Director Food and Civil Supplies, office of the S.D.O, Subroom, He wilt be relieved by Sri Swedesh Ranjan Roy Sub-Divisional Controller. Food and Civil Supplies.

Sd/- illegible Jt. Secretary to the Govt. of Tripura

It would appear from the aforesaid transfer order that the Petitioner while working as a sub-divisional Controller at Agartala was transferred to Subroom, but at relevant time, there was no incumbent working as sub-divisional Controller in Subroom. In the transfer order at paragraph 23, it has been clearly mentioned that Shri Ajit Bhattacharjee, Assistant Director would be relieved by the Petitioner. This transfer order when read with the direction as contained in paragraphs 22 and 23 creates a peculiar situation. Here, an officer of lower grade on transfer has been directed to relieve an officer holding higher post and accordingly he had relieved Shri Bhaltarharjee, Asstt. Director. This would lead to the presumption that the authorities intended the officer concerned to takeover charge of the office in the higher grade. It is true that in the absence of any express condition such order cannot be deemed to be an order of promotion, but certainly it can be construed to be an order permitting the officer of the lower grade to hold the current charge of the post in the higher grade. In the transfer order there was also no mention of any vacant post of sub-divisional controller at Subroom and that the transfer order was made against the vacant post. There was no mention in the transfer order that in addition too his posting as sub-divisional officer against a vacant post, he was allowed to hold additional charge of the post of Assistant Director.

11, From Paragraph 7 of the counter filed by the State we find that 10 posts of sub-divisional controller were up graded for 10 Sub-divisions leaving 6 sub-divisional Headquarters to be manned by the officers of the rank of sub-divisional officers. The propriety and validity of the process of up gradation of 10 posts out of 16 have not been questioned in this writ petition. It will not be out of place to mention that up gradation of posts can be made in respect of cadre in its entirety excluding some facts from the preview of up gradation without any reasonable ground. However, if we take this statement made in the counter as correct, 6 sub-divisional Headquarters were kept open to be manned by the officers of the rank of sub-divisional Controller and not Asstt. Director. But in the instant case, we find that Shri Bhattacharjee was working as Asstt. Director at Subroom and he was directed to be relieved by the Petitioner. This shows that the statement made on oath in paragraph 7 of the counter do not reflect the correct position. Annexure 4, the copy of the charge report shows that the Petitioner relieved Shri Bhattacharjee who was then posted as Asstt. Director. Therefore, the contention of the Respondents that there was a vacant post of sub-divisional Controller at Subroom is imaginary. In the Opinion of this Court, it has been highly unfair on the part of the Respondents to submit that there was a vacant post of sub-divisional controller at Subroom. In view of the above anarchic situation created by the Respondents, they are bound to re-examine the claim of the Petitioner for payment of charge allowance/enhanced pay as per relevant provisions of Fundamental Rules, This is to be done because the mistake has been committed by the authorities and not the officer concerned. When the Respondents directed the Petitioner to relieve an officer in a higher rank without due consideration of the fall out of such order, they will have to accept the consequences and make payment of what is due to the Petitioner. The silence maintained by the Respondents without disposing of the representation of the Petitioner in this regards cannot but be deprecated as unfair and unjust.

The next point relates to the refusal of promotion to the Petitioner. It is an admitted fact that Sri Jotinmoy Ghosh Respondent No. 6 was given ad hoc promotion in supersession of the Petitioner on the ground that a disciplinary proceedings was contemplated against him. The established principles of law is that even when a disciplinary proceedings is initiated and pending against an officer who is in the consideration zone for promotion, his case will have to be considered Without any reference to the charges in the disciplinary proceedings and, if the officer is otherwise found suitable for promotion, a decision has to be taken for his promotion and the decision is to be kept in sealed cover till disposal of the disciplinary proceedings. If the disciplinary proceedings end in favour of the Petitioner, the decision of his promotion is to be implemented. In the instant case, the authority did not finalise the case of promotion of the Petitioner on the vague plea and ignored him while promoting his junior. This is evident on the fact of the record. Even as on today, as submitted by the learned Counsel, no disciplinary proceeding has been initiated against the Petitioner. Therefore, the act of Respondents in not considering and finalising the promotion of the Petitioner on the plea of contemplated disciplinary proceedings are violative of the established cannons of service jurisprudence and cannot but be dubbed as arbitrary. At the time of argument, it was pointed out that the Petitioner has been promoted to the post of Asstt. Director vide notification dated 11.12.1997. But the discussion made above leads this Court to conclude that this Petitioner is entitled to consideration for his promotion to the next higher grade with benefit of pay and seniority from the date his Junior was promoted. This belated promotion without giving retrospective effect cannot salvage the situation. The Petitioner is entitled to promotion from the date his junior (Respondent No. 6) was promoted.

The last point argued on behalf of the Petitioner is that the appointment of Respondent Nos. 4 and 5 as Additional Director and Joint Director has been in violation of the Recruitment Rules. It would appear that the Petitioner has challenged the appointment of Respondent Nos. 4 and 5 as Additional Direct and Joint Director on the ground that their appointments apart being contrary to the Recruitment Rules has been a stumbling block in the promotional avenue of the Petitioner and other similarly situated officers. To examine the legality of the appointment of Respondent Nos. 4 and 5, let us avert to Annexure-10. the Recruitment Rules. It is apparent from the Recruitment Rules that the posts of Joint Director is to be filled up by promotion failing which by transfer on deputation. This provision has been incorporated in Paragraph 10 of Annexure-10. The appointment of Respondent No. 5, an officer drafted from the Tripura Civil Service Grade-I, could only be made by the authorities after an exercise to fill up the post by promotion of the officers in the cadre was duly undertaken and only when no officer in the cadre Was found suitable for promotion to such higher grade. According to the Petitioner, no endeavor has been made by the Respondents to follow the aforesaid Rules and no exercise was undertaken to examine the suitability of the officers in the cadre.

The statement of the Government in paragraph 9 of the counter has been controverter by the Petitioner in his re-joined with specific assertion that no attempt was made to fill up the post by the officers in the cadre. The Respondents have not produced any documents to show that the statements made in the counter in this regard is correct. Even official file produced before this Court do not contain any material to show that the authorities made an attempt to examine the suitability of the officers of the Cadre as provided in the Recruitment Rules. From the re-joinder, we find that Shri Ashok Roy Choudhury, Assistant Director and Shri Bankim Deb Baruman Asstt. Director have had 11 and 8 years of service respectively in the post of Asstt. Director at the relevant time and, without examining their suitability for the aforesaid posts, the appointment of Respondent Nos. 4 and 5 could not be made on the face of the specific allegation made by the Petitioner. For reasons above, this Court is of the opinion that any appointment made to the post of Additional Director/Joint Director and Deputy Director without following the procedure laid down in the Recruitment Rules are illegal. In the instant case, we can come to a definite conclusion that the appointment of Respondent 5 as Joint Director has been illegal and as such it has to be quashed.

In the result, the writ petition is allowed with costs. The appointment of Shri Ashok Kr. Sen as Jt. Director is hereby quashed. Respondents are further directed:

(1) to dispose of the representation filed by the Petitioner claiming charge allowance/enhanced pay for holding charge of the officer of the Asstt. Director within 2 months from today in the light of the discussion made above;

(2) to consider and re-issue necessary Notification promoting the Petitioner to the post of Assistant Director w.e.f. the date of promotion given to the Respondent No. 6 with benefit of pay and allowances and seniority within a period of 3 months from today;

(3) to examine the legality and validity of the appointment of Shri A.B. Dutta Additional Director in the light of the discussion above and pass necessary orders in accordance with law within a period of one month from today.

Before parting, this Court records its disapproval of the manner in which the department of Food and Civil Supplies is resorting to adhoc basis appointments All promotions in the regular cadre appear to have been made on adhoc basis and extended from time to time. This practice is contrary to the decision of the Apex Court rendered in a number of cases and, therefore, has to be stopped in the interest of the administration.