Tripura High Court
Shri Tapan Kumar Choudhuri vs The State Of Tripura on 12 January, 2017
Author: S. Talapatra
Bench: S. Talapatra
IN THE HIGH COURT OF TRIPURA
AGARTALA
W.P(C) No.278 of 2015
Shri Tapan Kumar Choudhuri,
son of late Gopal Chandra
Choudhury, resident of Abhoynagar,
P.O. Abhoynagar, P.S. East Agartala,
Agartala, District- West Tripura,
PIN - 799005
....... Petitioner
-Versus-
1. The State of Tripura,
represented by the Chief Secretary,
Government of Tripura, New Secretariat
Complex, P.O. Secretariat Complex, P.S.
New Capital Complex, Agartala, District-
West Tripura, PIN - 799010
2. The Principal Secretary,
Department of Finance, Government
of Tripura, New Secretariat Complex,
P.O. Secretariat Complex, P.S. New
Capital Complex, Agartala, District-
West Tripura, PIN - 799010
3. The Secretary,
Department of Law, Government of
Tripura, New Secretariat Complex,
P.O. Secretariat Complex, P.S. New
Capital Complex, Agartala, District-
West Tripura, PIN - 799010
4. The Registrar General,
High Court of Tripura, Agartala, P.O.
Secretariat Complex, P.S. New
Capital Complex, Agartala, District-
West Tripura, PIN - 799010
5. The District & Sessions Judge,
Unakoti Judicial District, Kailashahar,
P.S. Kailashahar, District - Unakoti,
Tripura, PIN-799277
6. The District & Sessions Judge,
West Tripura District, Agartala, P.O.
Agartala Court, P.S. West Agartala,
District - West Tripura, PIN-799001
[2]
7. The District & Sessions Judge,
Gomati Judicial District, Udaipur,
P.O. Udaipur Court, P.S. R.K. Pur,
District - South Tripura, PIN -
799116
8. The District & Sessions Judge,
South Tripura District, Belonia, P.O.
Belonia, P.S. Belonia, District -
South Tripura, PIN - 799155
9. The District & Sessions Judge,
North Tripura District, P.O.
Dharmanagar, P.S. Dharmanagar,
District - North Tripura, PIN-799250
.............Respondents
BEFORE
THE HON'BLE MR. JUSTICE S. TALAPATRA
For the petitioner : Mr. D. Saha, Advocate
For the respondents No.1,2 & 3 : Ms. A.S. Lodh, Addl. G.A
For the respondent No.4 : Ms. P. Dhar, Advocate
For the respondents No. 5 to 9 : Mr. S.M. Chakraborty, Sr. Advocate
Mr. Suman Bhattacharji, Advocate
Date of hearing & delivery of : 12.01.2017
Judgment & Order
Yes No
Whether fit for reporting :
√
JUDGMENT & ORDER (ORAL)
Heard Mr. D. Saha, learned counsel appearing for the petitioner as well as Ms. A.S. Lodh, learned Addl. G.A. appearing for the respondents No.1,2 & 3, Ms. P. Dhar, learned counsel appearing for the respondent No.4 and Mr. S.M. Chakraborty, learned senior counsel assisted by Mr. Suman Bhattacharji, learned counsel appearing for the respondents No.5 to 9. W.P (C) No.278 of 2015 Page 2 of 17 [3] [2] By means of this petitioner who has retired from the service as the Head Clerk [Record Keeping] on 30.10.2006 [afternoon] has urged this court for direction on the respondents to act on the basis of the notification under No.3(2)-FIN(PC)/93(P-II) dated 23.05.2014 and in terms of the judgments dated 15.07.2008 and 07.10.2009 delivered in I.A. No.71A, I.A. Nos.135-136, I.A. Nos.137-138, I.A. No.142 and I.A. No.226 arising from W.P.(C) No.1022 of 1989 giving the benefits accrued therefrom w.e.f. 01.04.2003. It has been further urged to declare the letter dated F.13(I)(2)-HC/2015/3778-83 dated 15.06.2015 issued by the Registrar (Vigilance) of this court as incomplete, arbitrary and no- nest in the eye of law. It has been further to declare the order under No.F.10(152)(B)-DJ/W/2007-14/5320-38 dated 29.05.2014 issued by the District & Sessions Judge, West Tripura, Agartala as regard the partial implementation of the recommendations of Justice Shetty Commission for the judicial employees working in the sub-ordinate judiciary as contrary to the direction in the said orders. The petitioner has again urged that the judgment dated 07.10.2009 delivered in I.A No.71A, I.A. Nos.135-136, I.A. No.137- 138, I.A. No.142 and I.A. No.226 arising from W.P.(C) No.1022 of 1989 be given full effect to and the benefits be given from 01.04.2003. By way of amendment the further reliefs have been incorporated in the writ petition viz. to quash the memorandum under No.F.2(4)-LAW/ESTT.2/2012 dated 10.02.2014 issued by the Deputy Secretary, Law, Government of Tripura as that is coming in conflict with the said order in the course of implementation of the W.P (C) No.278 of 2015 Page 3 of 17 [4] benefits. It has been further urged to declare the notification has No.F.3(2)-FIN(PC)/93(P-III) dated 10.09.2015 issued by the Joint Secretary to the Government of Tripura as arbitrary and unconstitutional inasmuch as the said notification has taken away certain benefits as granted by the Shetty Commission recommendations.
[3] Before filing this writ petition, the petitioner had approached this court by filing a writ petition being W.P.(C) No.69 of 2012. The said writ petition was disposed of by the order dated 12.06.2014 having regard to the notification dated 23.05.2014 as by the said notification, the respondents No.1,2 & 3 had adopted a new approach. The relevant part of the said notification dated 23.05.2014 is extracted hereunder:
"Earlier decision regarding implementation of the Judgment dated 15-07-2008 and dated 07-10- 2009 of the Hon'ble Supreme Court in IA 71A, 135-138, 142 & 226 in connection with WP(C) No.1022/1989 (All India Judges Association Vs. The Union of India & others) following various recommendations of Shetty Commission in respect of Subordinate Judiciary staff communicated vide this Department earlier Notification of even number dated 02-01-2012 has been reviewed and it has been decided to give the benefits with effect from 1st April, 2003."
As such, the relief as prayed by the petitioner to give the financial benefits from 01.04.2003 had become infructuous. W.P (C) No.278 of 2015 Page 4 of 17 [5] [4] On the basis of the said notification, the District & Sessions Judge, West Tripura, Agartala had given the benefits from 01.04.2003 in terms of the memorandum under No.F.2(4)-LAW/ ESTT.2/2012 dated 10.02.2014, Annexure-A to the writ petition, issued by the Law Department, Government of Tripura. The different categories of posts in the sub-ordinate judiciary were upgraded in compliance to the order of the apex court in I.As No.71A, 135-138, 142 and 226 arising from W.P.(C) No.1022/1989 [All India Judges Association Vs. Union of India & others] pursuant to the recommendation of Justice Shetty Commission. The total number of posts those were upgraded was 144. By a subsequent notification under No.F.3(2)-FIN(PC)/93(P-III) dated 10.09.2015, issued by the Department of Finance, Government of Tripura, it has been declared that the benefits in terms of the Justice Shetty Commission recommendations shall be provided to the staff of sub- ordinate judiciary under the modified revised pay structure w.e.f. 01.01.2006 and under the Tripura State Civil Services (Revised Pay) (Twelfth Amendment) Rules, 2015 over the benefits already given w.e.f. 01.04.2003. The pay scale/structure of different categories of posts/upgraded posts, as on 01.04.2003 as recommended by the Shetty Commission along with revised pay scale/structure of the posts w.e.f. 01.01.2006, are given in said notification dated 10.09.2015 in the following manner: W.P (C) No.278 of 2015 Page 5 of 17 [6]
Name of the Existing pay Pay Revised pay structure as on posts scale as on scale/modifi 01.01.2006 under the Tripura State 31.03.2004 ed pay scale Civil Services (Revised Pay) (Twelfth (in Rs.) w.e.f. Amendment) Rules, 2015 01.04.2003 to Pay Band Pay Band Grade Pay 31.12.2005 Scale (in Rs.) (in Rs.) as per recommen-
dations of the Shetty Commission (in Rs.) 1 2 3 4 5 6 Private 12000-18400 12000-18400 PB-4 15600-39100 7600 Secretary Gr.I Private 10650-15850 10650-15850 PB-4 15600-39100 6800 Secretary Gr.II Private 10000-15100 10000-15100 PB-4 15600-39100 6600 Secretary Gr.III Private 7450-13000 7450-13000 PB-3 10230-34800 4800 Secretary Gr.IV Personal 6500-12300 6500-12300 PB-3 10230-34800 4600 Assistant-I Personal 4200-8650 4200-8650 PB-2 5700-24000 2800 Assistant-II Accounts Officer 7450-13000 7800-15100 PB-4 15600-39100 5400 Sr. Sheristadar 6500-12300 7450-13000 PB-3 10230-34800 4800 Sheristadar 5000-10300 7450-13000 PB-3 10230-34800 4800 (Head Clerk Grade) Sr. Div.
Court Office 6500-12300 6500-12300 PB-3 10230-34800 4600 Superintendent Bench Clerk 5000-10300 6500-12300 PB-3 10230-34800 4600 (Head Clerk Grade) Sheristadar 5000-10300 5000-10300 PB-2 5700-24000 4200 (Head Clerk Grade) Jr. Div.
Court Head Clerk 5000-10300 5000-10300 PB-2 5700-24000 4200 Bench Clerk 4200-8650 5000-10300 PB-2 5700-24000 4200 UDC Grade) Upper Division 4200-8650 4200-8650 PB-2 5700-24000 2800 Clerk Bench Clerk 3300-7100 4200-8650 PB-2 5700-24000 2800 (LDC Grade) Lower Division 3300-7100 3300-7100 PB-2 5700-24000 2200 Clerk Driver 3300-7100 3300-7100 PB-2 5700-24000 2200 W.P (C) No.278 of 2015 Page 6 of 17 [7] Bailiff ......... 3300-7100 PB-2 5700-24000 2200 Record Arranger 3050-5910 3050-5910 PB-2 5700-24000 2000 Duplicating 3050-5910 3050-5910 PB-2 5700-24000 2000 Operator Process Server 2750-4925 2900-5660 PB-1 4840-13000 1900 Duftry 2750-4925 2700-4925 PB-1 4840-13000 1800 Group-D 2600-3545 2600-3545 PB-1 4840-13000 1400 (Peon/Orderly/ Night Guard/Dry-
cum-Wet Sweeper It has been clarified in the said notification that an employee of sub-ordinate Judiciary in service as on 31.03.2003 holding a particular post mentioned in Column 1 of the table with the corresponding scale of pay as in Column 2 shall be provided with one advance increment in that scale of pay on 01.04.2003 and thereafter, his/her pay shall be fixed in the appropriate stage of the relevant pay scale/modified pay scale mentioned in Column 3 thereof on 01.04.2003 and regulated up to 31.12.2005 under the Tripura State Civil Services (Revised Pay) Rules, 1999. [5] The respondents No.5 to 9 by filing the reply on 25.01.2016 have categorically stated that one advance increment on the basis of the notification dated 02.01.2012 issued by the Finance Department was allowed to all staffs and some retired employee w.e.f. 01.04.2003. Financial benefit on application of 1.86 factor was given to the regular staff and retired employees w.e.f. 01.01.2006 on obtaining undertaking from them. W.P (C) No.278 of 2015 Page 7 of 17 [8]
The said reply was not very exhaustive and did not address the whole controversy in the writ petition. However, the respondents No.1,2 & 3 by filing a separate counter affidavit have stated as under:
"It is stated that in view of the direction of the Hon'ble High Court dated in W.P.(C) No.30 of 2015 and the clarification provided by the Honble Supreme Court having due regard to the order dated 16.03.2015 in I.A. Nos.297 & 71A in W.P.(C) No.1022 of 1989, Finance Department issued notification dated 10.09.2015 allowing pay scale/structure of different categories of posts/upgraded posts as on 01.04.2003 as recommended by the Shetty Commission along with the revised pay scale/structure of the posts with effect from 01.01.2006 in respect of staffs of Subordinate Judiciary. It is now with the office from which the petitioner proceeded to superannuation who shall fix the pay/pension of the petitioner in light of notification issued from time to time in this regard."
[6] The petitioner by filing a rejoinder on 15.02.2016 has stated amongst other things that the respondents No.5 to 9 by filing the said reply have clearly admitted that one advance increment as per recommendation of the Justice Shetty Commission was allowed to some retired employees w.e.f. 01.04.2003. In the said rejoinder, the petitioner has asserted as under:
"If the recommendations is/was implemented basic pay of the petitioner would have Rs.8,200/- instead of Rs.8050/- and the petitioner could have held the post of Head Clerk on 01.06.2003 and his basic pay would have raised applying F.R.22(1)(a) (1) and thereafter the petitioner shall be entitled to the Higher Grade/Post with higher pay scale raising his basic pay which would have equated with the recommendations of Shetty Commission as per Judgment of the Hon'ble Apex Court which were made for NCT of Delhi as a sample in respect of financial estimation of the recommendations."W.P (C) No.278 of 2015 Page 8 of 17 [9]
These reliefs however were not the part of the reliefs as prayed in the writ petition.
[7] The petitioner with leave of the court had filed one additional affidavit on 28.03.2016 by giving his interpretation of the notification vis-a-vis the Justice Shetty Commission recommendations and the said orders of the apex court. According to him, he was entitled to get one advance increment of `150/- in the scale of pay of `4200-120-6000-130-7300-150-8650/- taking his basic pay as on 01.04.2003 to `7900/- as per the memorandum dated 23.05.2014, Annexure-13 to the writ petition and his pay would have been augmented to `8050/- [`7900+`150] as on 01.04.2003. On the next date of his increment i.e. on 01.06.2003, his basic pay would have been raised to `8200/-[`8050+`150] after adding the usual increment. After completing the accounts training he was entitled to get further increment w.e.f. 01.01.2004 and as such, his pay on that day would have been actually `8350/- [`8200+`150] and the due increment would have been released on 01.06.2004 taking the basic pay to `8500/-. The petitioner has asserted that he was promoted to the post of Head Clerk on 30.09.2004 and by applying F.R.22(1)(a)(2) in the scale of pay of `5000-10300/- his basic pay would have been raised to `8640/- and on 01.06.2005, his basic pay was to be re-fixed at `8940/- by adding the annual increment. Showing the calculation in the above manner, the petitioner has claimed that his basic pay would have W.P (C) No.278 of 2015 Page 9 of 17 [10] been fixed at `21460/- with Grade Pay of `4200/- w.e.f. 01.01.2006, with the next date of his increment i.e. 01.07.2006. On that day, his basic pay would have been raised to `22100/- [`21460/- + `650/-]. Since the petitioner has retired on 31.10.2006, on that day of retirement, his basic pay would have been `22110/-.
[8] Against the said additional affidavit dated 28.03.2016 filed by the petitioner, the respondents No.5 to 9 have filed their reply on 08.04.2016 stating that pursuant to the notification dated 17.06.2014 one advance increment was released on 01.04.2003 in favour of the petitioner. According to the respondents No.5 to 9, the petitioner's retirement has come in effect from 01.11.2006 from the post of Head Clerk at Udaipur, South Tripura, now Gomati Judicial District and his pay and allowances was re-fixed on 01.01.2006 till his retirement i.e. on 01.11.2006 including one advance increment w.e.f. 01.04.2003 in terms of the Finance Department's said notification by preparing the Initial Pay Statement, the IPS in short, on 17.03.2016 and the arrears bill has been presented to the Treasury on 19.03.2016. [9] The petitioner had filed one rejoinder against the said additional affidavit filed by the respondents No.5 to 9. By that rejoinder, the petitioner has further expanded the writ petition without any sanction of law. In that rejoinder, the petitioner has categorically stated that the respondent No.7 prepared the bill after making due drawn statement hastily calculating the pay and W.P (C) No.278 of 2015 Page 10 of 17 [11] allowances of the petitioner for the period from 01.01.2006 to 31.10.2006 including one advance increment w.e.f. 01.04.2003. The said bill amounting to `2,14,595/- has been presented to the Treasury at Udaipur and on 02.04.2016 the said amount has been credited to the bank account of the petitioner. But on 06.04.2016 the petitioner was communicated that he has overdrawn an amount of `68130/- and the petitioner was requested to deposit the said overdrawn amount to the Government Treasury, Tripura by a challan and the petitioner has deposited the said overdrawn amount in terms of the said direction. In Para-6 of the said rejoinder, the petitioner has asserted as under:
"That the petitioner humbly submits that as per Annexure-R/8 of the Additional Counter Affidavit filed by the respondents No.5 to 9, it appears that on 30.09.2004 the petitioner was promoted to the post of Head Clerk in the pre-revised existing pay scale of Rs.5000-10300/- from the post of U.D. Clerk. It also appears that on 01.04.2003 the petitioner was holding the post of U.D Clerk. Your petitioner humbly submits that at the relevant period i.e. on 01.04.2003 the petitioner was one of the senior most U.D. Clerks and as such your petitioner is entitled to the Pay Scale of Rs.5000- 10300/- along with all fringe benefits i.e. admissible allowances with effect from 01.04.2003."
The petitioner has also admitted that he got promotion to the post of Head Clerk on 30.09.2004 in the scale of pay of `5000-10300/- with one increment at the initial rate at `130/- per month. Thereafter, the petitioner was eligible for promotion to the post of Office Superintendent in the scale of pay of `6500-12300/- with its corresponding revised pay. According to the petitioner, he was entitled to the financial benefits due to refixation of his pay W.P (C) No.278 of 2015 Page 11 of 17 [12] and allowances w.e.f. 01.04.2003 till his date of retirement i.e. on 31.10.2006 [afternoon]. One table has been prepared by the petitioner regarding his financial benefits w.e.f. 01.04.2003. For purpose of elucidation, the said table is extracted hereunder:
Period Pay with one Pay with Entitlement Up-gradation of Remarks advance one Post(s) as per increment & advance recommendatio admissible increment ns of Shetty allowances & Commission shown in the admissible w.e.f.
Annexure R/8 allowances 01.04.2003
in the Pre- drawn in
revised Pay the Pre-
Scale of revised Pay
Rs.4200-120- Scale of
6000-130- Rs.4200-
7300-150- 120-6000-
8650/- under 130-7300-
ROP, 1999 150-8650/-
under ROP,
1999
1 2 3 4 5 6
01.04. 7900/- +150/-= Rs.7900/- Rs.5000- Entitled to Up- As per
2003 8050/- 10300/- gradation of state-
along with Post(s) as per ment
opportunity recommendation below
of option of Shetty
Commission
w.e.f. 01.04.2003
01.06. 8050/-+150/-= Rs.8050/- -do- -do- -do-
2003 8200/- (DNI)
01.01. 8200/-+150/-= Rs.8200 -do- -do- -do-
2004 8350/-
(Accounts
training)
01.06. 8350/-+150/- Rs.8350/- -do- -do- -do-
2004 =8500/- (By
increment)
30.09. 8640/- 8490/- Pay Scale of Entitled to Up- As per
2004 F.R.22(1)(A) Rs.5000- gradation of state-
(2) on 130-6690- Post(s) as per ment
promotion to 150-8940- recommendations below
the post of 170- of Shetty
W.P (C) No.278 of 2015 Page 12 of 17
[13]
Head Clerk 10300/- + Commission
one w.e.f. 01.04.2003
increment
at the initial
rate
Rs.130/-
pm raising
the pay as
on
30.09.2004
shown in
Col No.2
01.06. Rs.8940/- Rs.8790/- -do- -do- -do-
2005 F.R.22(1)(a)(1)
01.01. Rs.21,460/- Rs.8790/- -do- -do- -do-
2006
01.07. Rs.22,110/- Rs.8940/- -do- -do- -do-
2006 to
31.10.
2006
[10] From the above table, it would be evident that the
petitioner had received one advance increment on 01.04.2003.
According to him, he was entitled to the scale of pay `5000- 10300/-, not the scale of pay of `4200-8650/-. Hence there is no dispute about the release of the periodical increments. According to the petitioner, the petitioner was entitled to the upgradation of post on 01.04.2003 and thus, his pay scale is higher pay scale on 30.04.2009.
[11] By filing an another additional affidavit on 23.06.2016, the petitioner has admitted that one advance increment was paid to him but the scale of pay of `5000-10300/- w.e.f. 01.04.2003 after getting one advance increment of `150/- in the scale of pay of `4200-8650/- has not been granted though he was entitled to the W.P (C) No.278 of 2015 Page 13 of 17 [14] modified scale of pay of `5000-10300/- till 29.09.2004. On 30.09.2004, the petitioner's scale of pay would be fixed at `5000- 10300/- with advance increment for his promotion. Both of his periodical increments i.e. on 01.06.2003 and 01.06.2004 were released in due course and one extra increment was also released for his accounts training. Thus, the petitioner has claimed all the financial benefits in terms thereof. Since the claim of the petitioner is very smudgy, this court by the order dated 03.08.2016 passed the following order:
"Mr. Suman Bhattacharji, learned counsel appearing for the respondents No.5 to 9 shall take instruction from the District Judges or the Drawing and Disbursement Officers concerned whether the petitioner has been given the benefit of the modified scale of pay of `5,000-10,000/- w.e.f. 01.04.2003 till 31.12.2005 inasmuch as on 01.01.2006 the revised pay scale corresponding to the said modified pay scale has become effective. Mr. Bhattacharji, learned counsel shall also clarify on the next date that when the petitioner was promoted to the post of Head Clerk whether in his favour one advance increment and the other increment in the same year for completing accounts training successfully were released or not.
The service records of the petitioner as submitted by Mr. Bhattacharji, learned counsel are returned under a sealed cover and Mr. Bhattacharji, learned counsel shall submit those records on the next date."
[12] In terms of the said order dated 03.08.2016, the respondents No.5 to 9 have filed an additional affidavit on 17.08.2016 clearly stating that on 01.04.2003 the petitioner was holding the post of U.D Clerk in the scale of pay of `4200-8650/-. Thus, on 01.04.2003 the basic pay of the petitioner was `7900/-. One advance increment of `150/- was released in favour of the W.P (C) No.278 of 2015 Page 14 of 17 [15] petitioner and his usual periodical increment was also released on 01.06.2003. Even on completion of the accounts training, one additional increment was given to the petitioner on 01.01.2004 and another increment was given to the petitioner on 01.06.2004. Thus, so far the claim over the increment was concerned, all were released and the reliefs as sought by the petitioner in that regard do not survive for further consideration. The respondents No.5 to 9 have further stated that the petitioner was promoted to the post of Head Clerk on 30.09.2004 in the scale of pay of `5000-10300/- and his basic pay was fixed at `8640/-. His next date of increment was fixed on 01.06.2005. On that day, `150/- was released as periodical increment and another increment `150/- was enhanced as promotional increment. Thus, the pay of the petitioner was fixed at `8940/- on 01.01.2006 in the scale pay of `5000-10300/-. On 10.09.2005 his pay was again fixed in the Pay Band-2 in the scale of pay of `5700-24000/- with Grade Pay of `4200/-. Thus, the petitioner's revised pay stood at `21460/- from 01.01.2006 and the date of next increment of the petitioner was on 01.07.2006. After giving him an increment of `650/-, his basic pay stood at `22110/- on the date of his retirement on 31.10.2006. Thus, the petitioner was not entitled to any other relief.
[13] The only question that falls for consideration of this court is that whether the petitioner was entitled to the upgradation of the post or not.
W.P (C) No.278 of 2015 Page 15 of 17 [16]
From the notification dated 10.09.2015, it clearly transpires that as per the Justice Shetty Commission recommendations and the order of the apex court, the post of U.D Clerk is not entitled to any upgradation meaning that the scale of pay of the petitioner from `4200-8650/- shall not be upgraded to the scale of pay of `5000-10300/-. However, the Bench Clerks (UDC Grade) had got the upgradation in terms of the said notification dated 10.09.2015 and accordingly, their pay scale from `4200-8650/- was upgraded to `5000-10300/-. The respondents No.5 to 9 have clearly stated that all the reliefs under the scheme flowing from the Justice Shetty Commission recommendations have been released to the petitioner.
[14] The petitioner by filing an another additional affidavit dated 14.11.2016 has raised a new grievance by stating that when one of his junior in terms of the inter se seniority was appointed as the Clerk [UDC grade] and hence, on 01.04.2003 he ought to have been deemed as appointed as Bench Clerk [UDC Grade]. For his posting, he was not appointed so and thus, he has been deprived from the said benefit. The respondents No.5 to 9 have clearly stated that such grievance was not expressed in the writ petition, even not by way of amendment. Such grievance was incorporated by the said additional affidavit. That apart, the petitioner never raised any objection when the persons were appointed as the Bench Clerk [UDC Grade]. Unless the petitioner is in position that he is entitled to get the benefit as the Bench Clerk [UDC Grade], he W.P (C) No.278 of 2015 Page 16 of 17 [17] is not entitled to get the upgradation as stated. The respondents No.5 to 9 have thus stated in their application dated 14.11.2016 that unless his junior in the inter se seniority list namely, Narendra Chandra Ghosh was made party, that issue cannot be determined inasmuch as any order passed by this Court might affect the said person who has also retired from the said post. Thus, Mr. Bhattacharji, learned counsel appearing for the respondents No.5 to 9 has pressed before this Court, such relief cannot be granted by this Court for two reasons viz. (i) such relief is not included in the writ petition even there is no such averment and (ii) in absence of, the person who might be affected by the order of the court, the court cannot adjudicate such controversy.
[15] This court is in full agreement with the submissions advanced by Mr. Bhattacharji, learned counsel appearing for the respondents No.5 to 9 and of the view that the petitioner has been released with all the benefits in terms of the Justice Shetty Commission recommendations vis-a-vis the apex court's orders and hence, this writ petition is devoid of merit for being infructuous and accordingly, the same is dismissed.
There shall be no order as to costs.
JUDGE Sujay W.P (C) No.278 of 2015 Page 17 of 17