Tripura High Court
Sri Gopal Debnath vs The State Of Tripura on 2 June, 2017
Author: S. Talapatra
Bench: S. Talapatra
1
IN THE HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) NO.233 OF 2013
W.P.(C) NO.234 OF 2013
IN
W.P.(C) NO.233 OF 2013
Sri Gopal Debnath,
son of Sri Jadab Chandra Debnath,
resident of Bridhi Nagar,
P.O. Ranir Bazar, P.S. Ranir Bazar
District: Tripura West,
..................... Petitioner
- Vs -
1. The State of Tripura,
represented by the Principal Secretary,
Department of Health & Family Welfare,
Government of Tripura,
having his office at new Secretariat Complex,
Gurkhabasti, P.O. New Capital Complex,
P.S. New Capital Complex, Sub-Division: Sadar,
District: Tripura West
2. The Director,
Department of Health & Family Welfare,
Government of Tripura,
having his office at New Secretariat Complex,
Gurkhabasti, P.O. Kunjaban,
P.S. New Capital Complex, Sub-Division: Agartala,
Kunjaban, District: West Tripura
..................Respondents
W.P.(C) No.233 of 2013 & 234 of 2014
Page 1 of 9
2
IN
W.P.(C) NO.234 OF 2013
Sri Manoranjan Debnath,
son of late Debendra Chandra Debnath,
resident of village: Shyamalibazar,
P.O. Kunjaban, P.S. East Agartala,
District: Tripura West,
PIN: 799 006
..................... Petitioner
- Vs -
1. The State of Tripura,
represented by the Principal Secretary,
Department of Health & Family Welfare,
Government of Tripura,
having his office at New Secretariat Complex,
Gurkhabasti, P.O. New Capital Complex,
P.S. New Capital Complex, Sub-Division: Agartala,
District: Tripura West
2. The Director,
Department of Health & Family Welfare,
Government of Tripura,
Having his office at new Secretariat Complex,
Gurkhabasti, P.O. Kunjaban,
P.S. New Capital Complex, Sub-Division: Agartala,
District: West Tripura
..................Respondents
BEFORE
THE HON'BLE MR. JUSTICE S. TALAPATRA
For the petitioner : Mr. Somik Deb, Advocate
For the respondents : Mr. T.D. Majumder, G.A.
Date of hearing : 02.06.2017
Whether fit for reporting : No
W.P.(C) No.233 of 2013 & 234 of 2014
Page 2 of 9
3
JUDGMENT & ORDER (ORAL)
Heard Mr. Somik Deb, learned counsel appearing for the petitioners as well as Mr. T.D. Majumder, learned G.A. appearing for the respondents.
02. Both the writ petitions being W.P.(C) No.233 of 2013 [Gopal Debnath vs. State of Tripura and another] and W.P.(C) No.234 of 2013 [Sri Manoranjan Debnath vs. State of Tripura and another] are consolidated for disposal by a common judgment as learned counsel appearing for the parties are on consensus that these writ petitions are squarely covered by a previous decision of this court in Tapan Chandra Lodh and Ors. vs. State of Tripura and Ors. reported in (2015) 2 TLR 637.
03. The facts are mostly admitted. The petitioner in W.P.(C) No.233 of 2013 was initially appointed as the Field Worker pursuant to the memorandum dated 06.05.1982 [Annexure-A to the writ petition]. But by the order dated 09.10.1996 [Annexure-B to the writ petition] the petitioner was engaged to drive the departmental vehicle as and when required. The petitioner has stated that he has been driving the departmental vehicles since then without any interruption. The petitioner has placed a sheaf of departmental orders in support of his contention. It is also not in dispute that Tripura Government Vehicles Drivers Services Rules, particularly Rule 10(b) and Rule 10(c) with which these writ petitions are concerned provide as under:
W.P.(C) No.233 of 2013 & 234 of 2014 Page 3 of 9 4 "10(b) Seventy per cent of the total vacancies arising in a year shall be filled up by direct recruitment while the rest thirty per cent shall be filled up by promotion from the regular Group-D employees having valid licence for driving vehicles. In case of the direct recruits, Transport Department shall conduct interview and suitability test as may be prescribed and select a panel of eligible candidates for forwarding the same to the respective Departments. The list to be prepared shall contain selected candidates double the number of vacancies that may be filled up. The list shall remain valid for a period of one year.
10(c) In case of promotion of Group-D employees as Drivers the Transport Department shall take practical test and interview to assess the suitability of the employee concerned to drive a Government vehicle and recommend names to the Departments for filling up the promotional posts of Drivers. All Departments mentioned in the Schedule shall maintain a roster to indicate the number of vacancies meant for direct recruit and promotes. In case no qualified Group-D employee is found for promotion as Driver the post may be filled up by direct recruits."
[Emphasis added]
04. From a bare reading of these provisions it would be apparent that 30% of the yearly vacancies shall be filled up by promotion from the regular Group-D employees having valid license for driving the vehicle. In case of promotion of Group-D employees as Driver, the Transport Department shall take a practical test and interview to assess the suitability of the employee concerned to drive a Government vehicle and thereafter would recommend the name to the Departments for filling up the promotional posts of drivers. All the Departments mentioned in the schedule shall maintain a roster to indicate the number of vacancies meant for direct recruitment or for promotion. In case, no eligible Group-D employee is found for promotion as driver, the post may be filled up direct recruitment. W.P.(C) No.233 of 2013 & 234 of 2014 Page 4 of 9 5
05. From the memorandum dated 20.06.2013 [Annexure-M to the writ petition] it appears that as per clause 10(c) of Tripura Government Vehicles Drivers Services (7th amendment) Rules, 2011, the Transport Department conducted the practical test and interview to assess the suitability of the Group-D employees on the basis of the list as provided by various departments based on the roster verified by SC/ST Welfare Department. The committees so constituted by the cadre-controlling department have submitted their recommendations department wise. The said memorandum dated 20.06.2013 contains the list of the successful candidates. From the said list, it appears that name of the petitioner namely Sri Gopal Debnath [the writ petitioner in W.P.(C) No.233 of 2013] appears in serial No.47 whereas the name of the other petitioner namely Manoranjan Debnath [the writ petitioner in W.P.(C) No.234 of 2013] figures in serial No.41 of the said list as enclosed with the memorandum dated 20.06.2013 [Annexure-M to the writ petition]. It would be apposite to say that the petitioner namely Manoranjan Debnath, the writ petitioner in W.P.(C) No.234 of 2013 was initially appointed as the General Duty Attendant [Group-D] under the Directorate of Health Services in pursuance to the memorandum dated 07.06.1980. After a very short period he was entrusted with the duty of driving the departmental vehicle. He was also made the in-charge of the Drivers in his place of posting.
06. The said petitioner has also produced various departmental orders showing that he had continued to discharge his duties as the Driver. On 08.11.2010, the petitioner by filing a representation had W.P.(C) No.233 of 2013 & 234 of 2014 Page 5 of 9 6 placed his demand for giving him promotion to the post of Driver within a short while. Thereafter, both the petitioners participated in the said test. Previously, the petitioner namely Manoranjan Debnath filed a writ petition before the Gauhati High Court, which had the territorial jurisdiction at that time, being W.P.(C) No.471 of 2011. In that writ petition the Gauhati High Court had by the final order dated 24.11.2011 directed the respondents to consider the said representation of the petitioner dated 08.11.2010. The Director of Health Services in compliance thereof passed an elaborate order on 19.01.2012 disclosing that the name of the said petitioner was recommended to the Transport Department for promotion. Thereafter, in terms of the intimation given by the memorandum dated 27.11.2012, the petitioner had participated in that test and he had successfully come out of the test as it has been revealed by the memorandum dated 10.06.2013 as stated. But the petitioners were not appointed on the basis of the said list as, according to the respondents, the petitioners had failed to secure recommendation from the Transport Department. That is the whole reason why they were not given the promotion. From the list, it appears that the petitioners had successfully completed the test and interview for purpose of promotion under 30% quota from the Group-D employees to the post of Driver. That apart, the respondents have thereafter submitted that the appointment was made on the basis of the merit, not on the basis of the seniority position as reflected in the combined seniority list published before the test was held.
W.P.(C) No.233 of 2013 & 234 of 2014 Page 6 of 9 7
07. Even though the respondents by filing their reply in both the writ petitions have stated that since the petitioners' name were not recommended for promotion to the department, they could not be appointed as Driver on promotion. But from a bare reading of the memorandum dated 20.06.2013 it surfaces that the petitioners' name was recommended. The respondents' contention that the petitioners had failed to pass the test is totally unfounded in the records. Hence, the petitioners are entitled to be considered for promotion against the vacancies available at that point of time.
08. Mr. Somik Deb, learned counsel appearing for the petitioner has submitted that still the petitioners are driving the vehicles but there were not given promotion.
09. Mr. T.D. Majumder, learned G.A. appearing for the respondents has submitted that the appropriate direction may be issued by this court. In Tapan Chandra Lodh (supra), this court has observed as under:
"9. We have referred to the Rules hereinabove and according to us, sub-rule(c) which we have quoted hereinbefore does not contemplate the preparation of a merit list. The test to be conducted by the Transport Department is in the nature of a screening or suitability test only to assess whether the Group-D employee concerned can drive a Government Vehicle. If he is found suitable to drive a Govt. vehicle then he is to be promoted. We must also take into consideration of the fact that we are dealing with people who are at the lowermost rung of the ladder. The minimum educational qualifications are only Class-VIII pass. These employees have virtually no avenues of promotion and one of the few avenues of promotion is to be appointed as drivers. As indicated by us above, sub-rule(c) does not in any manner lay down that the appointments have to be made on the basis of merit. No doubt, as urged by Mr. Sinha, the rule is not absolutely W.P.(C) No.233 of 2013 & 234 of 2014 Page 7 of 9 8 clear but we WA NO.53 OF 2014 Page 8 of 8 are of the view that if we read sub-rule(c) in contradiction to sub rule(b) it is more than amply obvious that the intention of the State was that the test to be held in regard to sub- rule(c) was only a test to assess the suitability of the candidate and once a candidate is found suitable then there is no question of a merit list being prepared because they are due to be promoted in the order of the seniority enjoyed in the lower grade. Therefore, we find no merit in this appeal which is accordingly rejected. We also uphold the direction of the learned Single Judge that the select list of Group-D employees found suitable shall remain valid till it is totally exhausted. Only thereafter fresh recruitment of driver by promotion from Group-D employees shall be started. It is, however, made clear that since we have given this interpretation to the Rules, the State shall follow this interpretation in all the departments and will not follow any other system in any other case."
10. It has been submitted by the petitioners that their seniority has been ignored while making the promotion to the post of the Driver under the Directorate of Health Services on the pretext of (a) their names were not recommended and (b) their merit position did not permit the respondents to accommodate them against the available vacancies.
11. Having regard to the decision in Tapan Chandra Lodh (supra), this court is of the considered view that the petitioners were recommended for appointment on promotion as Driver under the Tripura Government Vehicles Drivers Services Rules. But on the pretext of the comparative merit they were not appointed on promotion as Driver under the Directorate of Health Services. In view of the law laid down in Tapan Chandra Lodh (supra), the respondents were supposed to consider their seniority in filling up of the vacancies available under 30% quota and they were not supposed to prepare any W.P.(C) No.233 of 2013 & 234 of 2014 Page 8 of 9 9 merit list. As corollary to this observation, the respondents are directed to appoint the petitioners in the post of the Driver as recommended by the Transport Department and place them above the persons who were junior to the petitioners in the Group-D cadre. It is needless to say that the said exercise shall be carried out with strict adherence to the order of seniority in the feeder grade. From the date of promotion as contemplated, the petitioners shall be paid all financial benefits within 3(three) months. The entire exercise for consideration of appointment on promotion of the petitioners in the post of the Driver, in view of the above observation, shall be completed within 3(three) months from the day when the petitioners shall submit a copy of this order.
12. For adjusting the juniors the respondents may create supernumerary posts. In the result, both the writ petitions are allowed.
There shall be no order as to costs.
JUDGE Moumita W.P.(C) No.233 of 2013 & 234 of 2014 Page 9 of 9