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2017 Supreme(Tri) 125
IN THE HIGH COURT OF TRIPURA AGARTALA
S.C. DAS, J.
Shri Asok Bhattacharya, S/O. Shri Ramendra Bhattacharya – Appellant
Vs.
The State of Tripura – Respondent
WP(C) No.199 of 2011
Decided on : 27-01-2017
Advocate Appeared:
For the Petitioners: Mr.A.K.Bhowmik, Mr.R.Datta, Mr.B.Bhattacharjee,
For the Respondents: Mr. J. Majumder,
The main legal point established in the judgment is the obligation of the State to follow the fundamental aspect of equality in creating promotional avenues and the need for at least two higher grades in any service, as well as the settled law that there must be promotional avenues for greater remuneration, responsibility, and job encouragement.
Headnote:
Promotional Avenues - Tripura State Rifles - Tripura State Rifles Recruitment Rules, 1984 - [Rule 1984, Section 6(1), Section 6(2), Section 8] - The court discussed the absence of promotional avenues for the post of Naib Subedar(Stenographer) under the Tripura State Rifles Recruitment Rules, 1984, and highlighted the obligation of the State to follow the fundamental aspect of equality in creating promotional avenues. The court emphasized the need for at least two higher grades in any service and the settled law that there must be promotional avenues for greater remuneration, responsibility, and job encouragement. The court also noted the discriminatory treatment in not providing similar promotional benefits to the petitioners as to similarly situated individuals in other branches of service under the same Rules. The judgment directed the State Government to consider the representation of the petitioners in creating promotional avenues for the post of Subedar(Stenographer) within three months.
Fact of the Case:
The petitioners sought the creation of promotional posts of Subedar(Stenographer) from the post of Naib Subedar(Stenographer) under the Tripura State Rifles Recruitment Rules, 1984. The respondents rejected the proposal for creating promotional posts without assigning any reason, leading to the petitioners filing a writ petition.
Finding of the Court:
The court found that the absence of promotional avenues for the petitioners, despite similarly situated individuals in other branches of service being provided with such avenues, amounted to discriminatory treatment. The court emphasized the need for at least two higher grades in any service and directed the State Government to consider the representation of the petitioners in creating promotional avenues for the post of Subedar(Stenographer) within three months.
Issues: The issues revolved around the rejection of the proposal for creating promotional posts of Subedar(Stenographer) for the petitioners, the absence of promotional avenues for the post of Naib Subedar(Stenographer) under the Tripura State Rifles Recruitment Rules, 1984, and the discriminatory treatment in not providing similar promotional benefits to the petitioners as to similarly situated individuals in other branches of service under the same Rules.
Ratio Decidendi: The court's decision was based on the settled law that there must be at least two higher grades in any service and the need for promotional avenues for greater remuneration, responsibility, and job encouragement. The court emphasized the obligation of the State to follow the fundamental aspect of equality in creating promotional avenues and highlighted the discriminatory treatment in not providing similar promotional benefits to the petitioners as to similarly situated individuals in other branches of service under the same Rules.
Final Decision: The writ petition was disposed of with a direction to the State Government to consider the representation of the petitioners in creating promotional avenues for the post of Subedar(Stenographer) within three months.
By filing this writ petition the petitioners prayed for directing the respondents to create promotional posts of Subedar(Stenographer) from the post of Naib Subedar(Stenographer).
2. Heard learned senior counsel, Mr. A. K. Bhowmik, assisted by learned counsel, Mr. R. Dutta for the petitioners and learned State counsel, Mr. J. Majumder for the respondents.
3. The petitioners were appointed in the post of Naib Subedar(Stenographer) under due selection process. Petitioner No.1 joined the post on 04.01.2000, petitioner No.2 on 13.01.2000, petitioner No.3 on 01.04.2002 and petitioner No.4 on 12.04.2002. They have been performing their duties all along with all sincerity, devotion and to the satisfaction of the authority. Their recruitment was guided by the Tripura State Rifles Recruitment Rules, 1984. The Rules prescribe promotional avenues in all ranks of the service except the post of Naib Subedar(Stenographer). Under the Tripura State Rifles Recruitment Rules there were other similar services also, such as, Naib Subedar(Clerk), Naib Subedar(Accountant), Naib Subedar(Compounder) etc. Promotional avenues were prescribed under the Rules for the Naib Subedar(Clerk), Naib Subedar(Accountant) etc. Initially there was no promotional avenue for Naib Subedar(Compounder), but ultimately by an administrative order the Naib Subedar(Compounder) was also provided with the promotional avenue of Subedar(Medical). One Pankaj Majumder and Jhutan Biswas were appointed as Naib Subedar(Compounder) and subsequently they were promoted to the post of Subedar(Medical) by an administrative order of the Government. Though the petitioners were similarly situated, but in their case no promotional avenues were created and as a result for last 14/16 years the petitioners are in the same post having no promotional avenue.
4. Respondent No.2 by a letter dated 24.01.2004 and thereafter by another letter dated 09.03.2005 requested respondent No.1 to create four posts of Subedar(Stenographer) with a view to afford promotional avenues to the petitioners, but that proposal has been regretted by respondent No.1 by a communication dated 07.05.2005. A copy of the said communication is annexed as Annexure 8 to the writ petition, which reads as follows :
“No.F.42(1)PD/2004
Government of Tripura
Home Department.
Dated, Agartala, 7th May, 2005
To
The Director General of Police,
Tripura, Agartala.
Subject : Proposal for creation of 4(four) posts of Subedar(Stenographer)(Promotional) in TSR with proposal for incorporating necessary rule provision.
Sir,
I am directed to refer to your letter No.5102/ F.8(12)PHQ/TSR/03(Shadow) dated 24th January, 2004 on the subject mentioned above and to say that the Finance Department has regretted the proposal for creation of 4(four) promotional posts of Subedar(Stenographer).
Yours faithfully,
Sd/
(Mrs.K.Das)
Under Secretary to the
Government of Tripura.”
It is contended by the petitioners that the proposal has been rejected without assigning any reason and so, the said letter is liable to be quashed.
5. The respondents contended that the creation of posts in a particular service, pay scale, promotion, etc. are administrative domain of the Government and so, the Court cannot direct to make Rules in a particular manner. The main stand of the respondents has been stated in para 6 of the counter affidavit, which reads as follows :
“6. That, in the instant petition the petitioners have prayed for Writ in the nature of Certiorari for quashing the Letter No.F.42(1)PD/2004 dated 07.05.2005 issued by the answering respondent No.1 refusing to concur with the proposal of the respondent No.2 for creation of promotional posts of Subedar(Stenographer) under Tripura State Rifles(hereinafter referred as TSR) for the purpose of promotion of petitioners and also prayed for Writ in the nature of Mandamus for directing the answering respondents to create promotional post of Subedar(stenographer) under Tripura State Rifles(Recruitment) Rules, 1984 (hereinafte
