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2018 Supreme(Tri) 9
IN THE HIGH COURT OF TRIPURA AT AGARTALA
S. TALAPATRA, J.
Shri Dipak Kumar Trivedi – Appellant
Versus
The State of Tripura - Respondents
W.P.(C) No. 84, 271 of 2017
Decided on : 03-01-2018
Advocate Appeared:
For the Appellant : Mr. A.K. Bhowmik, Mr. R. Datta, Mr. Somik Deb,
For the Respondent:Mr. B.C. Das, Mr. S.M. Chakraborty, Mr. J. Majumder, Mr. D. Bhattacharjee, Mr. D.C. Nath, Advocate
The main legal point established in the judgment is the interpretation of Rule 37 of Tripura State Rifles (Recruitment) Rules, 1984, and the determination of seniority in the post of Havilder (Clerk).
Headnote:
Rule 37 - Interpretation of Rule 37 of Tripura State Rifles (Recruitment) Rules, 1984 - 37(1), 37(2), 37(3), 37(4), 37(5), 37(6), 37(7), 37(8)
Fact of the Case:
The petitioners sought transfer against the vacant post of Havilder (Clerk) as they were occupying the post of Havilder (Clerk) at the relevant point of time. They were not selected despite being senior to the candidates who were recruited/promoted as Havilder (Clerk). The Gauhati High Court set aside the reversion orders and directed the state respondents to consider the petitioners' case for promotion maintaining their seniority with retrospective effect.
Finding of the Court:
The court found that the petitioners cannot claim seniority from 10.02.2004 as the Naresh Kumar and Aditya Kumar Yadav were engaged on 13.11.2009, and accordingly, the petitioners' seniority was set up. The court dismissed the writ petition and directed the state respondents to revisit the mode of selection vis-a-vis Rule 37(1) of the Rules, 1984.
Issues: Interpretation of Rule 37 of Tripura State Rifles (Recruitment) Rules, 1984, and the seniority of the petitioners in the post of Havilder (Clerk).
Ratio Decidendi: The court held that the petitioners cannot claim seniority from 10.02.2004 as the Naresh Kumar and Aditya Kumar Yadav were engaged on 13.11.2009, and accordingly, the petitioners' seniority was set up. The court directed the state respondents to revisit the mode of selection vis-a-vis Rule 37(1) of the Rules, 1984.
Final Decision: The writ petition stands dismissed, and the state respondents are directed to revisit the mode of selection vis-a-vis Rule 37(1) of the Rules, 1984. The court strongly felt that the Executive shall take an exercise in this regard so that such controversy does not reappear in the future.
The writ petitions being W.P.(C) No.84 of 2017 [Shri Dipak Kumar Trivedi & Others versus the State of Tripura & Others] & W.P.(C) No.271 of 2017 [Sri Suman Saha versus the State of Tripura & Others] are consolidated for disposal by a common judgment and order inasmuch as the writ petitioners were posted as Havilder (Clerk) by transfer by maintaining their seniority with retrospective effect from 13.11.2009 against 10(ten) UR vacancy of Havilder (Clerk) as per the judgment and order dated 15.12.2010 delivered in WP(C) No. 188 of 2006.
2. By means of this writ petitions, the petitioners have urged this court for setting aside the order under No.2462-77/F.2(40)/DAP/TSR/RSV/10 dated 09.03.2011 [Annexure-11 to the writ petition] and the decision contained in the communication under No.1714/F.26(11)/DAP/TSR/RSV/11 dated 01.03.2016 [Annexure-13 to the writ petition] and the order under No.4781-96/F.2(78)/DAP/TSR/RSV/08 dated 19.10.2009 [Annexure-14 to the writ petition]. These orders and decisions have been challenged in WP(C) No.271 of 2017 by the writ petitioner and in WP(C) No.84 of 2017, the writ petitioners have challenged the order under No.21887/F.8(87)-PHQ/TSR/2010 dated 02.06.2014 issued by the respondent No.2, the Director General of Police, Tripura. Further, it has been urged in WP(C) No.84 of 2017 to declare that the petitioners are entitled to be ‘promoted’ to the post of Havilder (Clerk) with effect from 10.02.2004 and to the post of Naib Subedar (Clerk) with effect from 09.10.2009 maintaining their seniority over the respondents No.5 to 15 in terms of the judgment and order dated 15.12.2010 delivered in WP(C) No.188 of 2006. It has been urged that the date of promotion as reflected in the order dated 09.03.2011 shall be preponed from 13.11.2009 to 10.02.2004. Even though, there would be some insignificant incongruity, but having considered the broader spectrum of the controversy, these two cases are combined inasmuch as, according to this court, both the writ petitions hinge on the controversy relating to interpretation of Rule 37 of Tripura State Rifles (Recruitment) Rules, 1984, hereinafter would be referred to as the Rules 1984, in short. Rule 37 of the rules 1984 provides as under :
“37. Recruitment Rules for the posts of Havildar (Clerk):
(1) These posts shall be filled by transfer from amongst general duty Havildar failing which from amongst Naiks, failing which from amongst Lance Naiks and failing which from amongst Riflemen, who-
(a) are willing for such transfer;
(b) have passed at least matriculation or an equivalent examination;
(c) possess minimum speed of 30 words per minute in English typing;
(d) have put in at least 2 years service in the Rifles; and
(e) have been approved for such transfer by the Deputy Inspector General.
(2) In case filling up of the posts by method specified in sub rule (1) is not possible, these posts may be filled by re-employment of ex-services or ex-Central Police Organisation personnel or by direct recruitment.
(3) To be eligible for re-employment, an ex-service or ex-Central Police Organisation personnel should-
(a) have retired or discharged, nor earlier than 24 months of such re-employment, in corresponding or higher clerical rank, from formation concerned;
(b) have possessed exemplary or very good character while in previous service;
(c) not have attained the age of 40 years as on 1st day of July of the year in which appointment is made; and
(d) have been approved for such re-employment by the Deputy Inspector General, who may relax any of the conditions specified in this sub-rule, in suitable cases, by order in writing.
(4) Direct Recruitment shall be made from amongst person who-
(a) have passed at least matriculation or an equivalent examination;
(b) have minimum speed of 30 words per minute in English typing?
(c) are within age group of 18-25 years as on 1st day of
