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HIGH COURT OF TRIPURA AGARTALA
S.C. DAS, J.
Swapan Kumar Mazumder - Petitioner
Versus
State of Tripura & Ors – Respondents
W.P(C) NO.13 OF 2009
Decided On : 24.04.2015
Promotion - Divisional Fire Officer - Recruitment Rules for the post of Divisional Fire Officer - Seniority list - Bias in promotion - Consideration for promotion after retirement - DPC guidelines violation
Fact of the Case:
The petitioner sought promotion to the post of Divisional Fire Officer (DFO) from the post of Station Officer, claiming bias in promotion and deprivation of legitimate right. The respondents contended that no one was promoted to the post of DFO from the post of Station Officer between 2001 and 2008, and that the petitioner could not be promoted during the pendency of certain cases. The court considered the petitioner's seniority, bias in promotion, and the failure to convene a DPC for promotion during the petitioner's service.
Finding of the Court:
The court found that the petitioner was eligible for promotion to the post of DFO in 2001, and that the failure to convene a DPC for promotion during the petitioner's service and the subsequent rejection of his candidature after retirement violated his legitimate right to be considered for promotion. The court directed the respondents to constitute a special DPC to consider the petitioner's promotion to the post of DFO with retrospective effect and to provide appropriate notional promotion and consequential service benefits.
Issues: 1. Whether there was a vacant post of DFO for promotion in 2001 and whether the petitioner was eligible for promotion at that time? 2. Whether the promotion to a superior post can be considered after retirement of the person who was entitled to be promoted before retirement in the existing vacant post?
Ratio Decidendi: The court held that the failure to convene a DPC for promotion during the petitioner's service and the subsequent rejection of his candidature after retirement violated his legitimate right to be considered for promotion. The court directed the respondents to constitute a special DPC to consider the petitioner's promotion to the post of DFO with retrospective effect and to provide appropriate notional promotion and consequential service benefits.
Final Decision: The writ petition was allowed, and the respondents were directed to constitute a special DPC to consider the petitioner's promotion to the post of DFO with retrospective effect and to provide appropriate notional promotion and consequential service benefits.
1. By filing this writ petition, the petitioner prayed for directing the official respondent Nos. 1, 2, 3 and 4 to consider the case of the petitioner for promotion to the post of Divisional Fire Officer w.e.f. 2nd May, 2001.
2. Heard learned counsel Mr. S. C. Das for the petitioner and learned Addl. G.A., Mr. S. Chakraborty for the respondent Nos. 1 to 4. Respondent No.5 has chosen to remain absent.
3. Undisputed facts are that the petitioner was appointed in the post of Fireman on 19.04.1973 (Annexure1 to the writ petition) under the Directorate of Fire Service, Govt. of Tripura. As per the Service Rules, the promotional channels were from the post of Fireman to the post of Sub-Officer and then from the post of Sub-Officer to the post of Station Officer and thereafter from the post of Station Officer to Divisional Fire Officer and so on. The petitioner was promoted to the post of Sub-Officer on 30.08.1977 (Annexure 2 to the writ petition) and thereafter was promoted to the post of Station Officer on 22.09.1995 (Annexure3 to the writ petition). The Director of Fire Service published a seniority list of the Fireman on December, 1974 (Annexure-4 to the writ petition) and in that seniority list the name of the petitioner was shown at Sl. No.69 and the respondent No.5 was shown at Sl. No.67 and thereby the respondent No.5 was placed senior to the petitioner. The seniority position of respondent No.5 as per seniority list dated 9th December 1974 was challenged by one Milan Kanti Paul and others by filing a Civil Suit No. T.S. 26 of 1977 and the suit was decreed in favour of the plaintiff. The judgment passed in the Title Suit was carried to first appeal as well as to second appeal vide RSA No.10 of 1984 and by judgment dated 24.06.1996 (Annexure-5 to the writ petition) the Single Bench of the Gauhati High Court upheld the judgment passed by the trial Court. As per the said judgment, a fresh seniority list of Firemen was prepared on 16.11.1996 (Annexure-6 to the writ petition) and in that seniority list, the name of the petitioner was shown at Sl. No.69 and the name of respondent No.5 was shown at Sl. No.72 which means the respondent No.5 was junior to the petitioner in the post of Fireman from the date of their appointment as a Fireman.
3.1 The petitioner claimed his promotion to the post of Sub-Officer and Station Officer with retrospective effect from the date his junior respondent No.5 was promoted and since the relief was not granted by the official respondents, he filed Civil Rule No.510 of 1995 before the Agartala Bench of the then Gauhati High Court and the High Court by judgment dated 01.02.2005 (Annexure-8 to the writ petition) allowed the writ petition and directed the respondents to constitute a DPC to consider afresh whether the petitioner was fit for promotion to the Grade of Sub-Officer w.e.f. the date when the respondent No.5 was promoted and if so found and promoted, his seniority in the Grade of Sub-Officer as well as Station Officer should be refixed in accordance with the relevant provisions of law applicable to the Officers of both the Grades. Pursuant to that judgment of the High Court, the respondent No.4 by order dated 21.03.2006 (Annexure-9 to the writ petition) and order dated 05.01.2006 (Annexure-10 to the writ petition) promoted the petitioner showing him as senior in the post of Sub-Officer and Station Officer and a fresh seniority list dated 22.01.2006 of Station Officer was published (Annexure-11 to the writ petition) wherein the petitioner was shown as senior to respondent No.5.
3.2 It is also an admitted position that a post of Divisional Fire Officer was created at Ambassa, Dhalai District on 02.05.2001 (Annexure-13 to the writ petition) but the post was not filled up and it was ultimately lapsed. According to the respondents (para13 of the counter affidavit) the post of Divisional Fire Officer, Ambassa, Dhalai was again created by departmental notification dated 02.09.2008 which was created e
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