Tripura High Court
Cd-10004 vs The State Of Tripura on 4 April, 2017
Author: S. Talapatra
Bench: S. Talapatra
1
THE HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) No. 287 of 2013
1. CD-10004, Sri Sujit Sarkar,
son of Sri Sankar Lal Sarkar,
resident of Siddhi Ashram, Nimbark, P.O. Siddhi Ashram,
P.S. Amtali, District- West Tripura, PIN-799003
2. CD-8645, Sri Bipul Choudhury,
son of Sri Biraj Mohan Choudhury,
resident of South Sonai Chari, P.O. South Sonai Chari,
P.S. Belonia, District- South Tripura, PIN-799155
3. CD-13564, Sri Padma Pani Sen,
son of late Manik Lal Sen,
resident of Dhajanagar, P.O. Gokulpur,
P.S. R.K.Pur, District- Gomati, Tripura, PIN-799120
4. CD-3664, Sri Uttam Naha,
son of late Ananta Kumar Naha,
resident of Pepariakhola, P.O. Barpathari,
District- South Tripura, PIN-799155
5. CD-3631, Sri Abhijit Das,
son of late Nepal Chandra Das,
resident of Fulkumari, P.O. R.K. Pur,
District- Gomati, Tripura, PIN-799120
... Petitioner
- Versus -
1. The State of Tripura,
represented by the Secretary, Home Department
Government of Tripura, New Secretariat Complex,
Agartala, P.O. Secretariat, PIN-799010
2. The Secretary,
Home Department, Government of Tripura,
New Secretariat Complex, Agartala, P.O. Secretariat
PIN-799010
3. The Director General of Police,
Government of Tripura, PHQ, Agartala,
West Tripura, P.O. Agartala, PIN-799001
... Respondents
4. Sri Mangal Debbarma,
presently, ASI of Tripura Police
5. Sri Chandraketu Tripura,
presently, ASI of Tripura Police
6. Sri Krishnadhan Biswas,
presently, ASI of Tripura Police
7. Sri Narayan Sarkar,
presently, ASI of Tripura Police
... Proforma-Respondents
W.P.(C) No. 287 of 2013
2
BEFORE
THE HON'BLE MR. JUSTICE S. TALAPATRA
For the petitioners : Mr. CS Sinha, Advocate
For the respondents : Mr. S. Chakraborty, Addl. GA
Date of hearing & delivery
of Judgment and Order : 04.04.2017.
Whether fit for reporting : NO
JUDGEMENT AND ORDER (ORAL)
Heard Mr. CS Sinha, learned counsel appearing for the petitioners as well as Mr. S.Chakraborty, learned Additional Government Advocate appearing for the respondents.
2. By means of this writ petition, the petitioners have challenged the decision of the respondents as reflected in the message dated 07.08.2013 (Annexure-5 to the writ petition) whereby the prayer for the petitioners to appear afresh in the departmental examination (Part III) has been rejected. There is no dispute that the petitioners as well as the proforma respondents No. 4 to 7 were before the promotion of the proforma respondents No. 4 to 7 in the Grade of Constable Driver, which post is distinctly separate from the post of Constable. Since the petitioners were having the driving license and on consideration of their competence, they were appointed as the Constable Driver which accordingly to Mr. Chakraborty, learned Additional Government Advocate is borne in the higher pay scale.
3. The controversy if is brought out beyond the web of certain averments would be confined to whether the Constable-drivers in the Tripura Police Organization can appear for the departmental examination or any part of the departmental examination (Part III) for being considered for promotion to the post of Assistant Sub Inspector (ASI) in terms of the Recruitment Rules published under the notification No. F.1(17)-PD/2005 dated 08.07.2008 (Annexure 6 to the writ petition) W.P.(C) No. 287 of 2013 3 or in other words as the petitioners had once held the post of Constable whether they can opt for the departmental examination to be considered for promotion to the post of ASI. In this context, let the material part of the Recruitment Rules be considered at the outset. Recruitment Rules provide that the post of Assistant Sub-Inspector shall be filled up 100% by promotion by a selection process as the post belongs to the category of the selection post, but the more pertinent part of the Recruitment Rules which has direct bearing on the controversy is Rule 11 of the said Rules which provide as under:
"Common Recruitment Rules for the Post of Assistant Sub- Inspector of Police (Un-Armed Branch) (Man & Woman) under Tripura Police Organisation.
SCHEDULE
1. Name of the Post Assistant Sub-Inspector of Police (Un-Armed Branch) (Man & Woman)
2. No. of Post: 548 (497 - Man, 51- Woman) plus additional posts as and when created by the Government from time to time xx xxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxx 11 In case of recruitment by From amongst Head Constables promotion/ deputation / (both AB/UB) (Men & Women), Naiks transfer, grades from which (Men & Women), LNK (Men & promotion / deputation/ Women), Constables (UB/AB) (Men transfer is to be made & Women), and Constable Armourer (Men & Women) as have two year st service as constable on 1 day of January of year in which DPC is convened on the basis of departmental examination as prescribed by the State Government. Procedure for holding examination is annexed.
4. There is no dispute that there are three parts in the departmental examination and the person to be considered for promotion to the post of the Assistant Sub-Inspector of police is supposed to clear all the three parts. Even the petitioners have cleared the three parts in the exercise by which the proforma respondents were appointed as Assistant Sub- Inspector of police but since they could not be accommodated for W.P.(C) No. 287 of 2013 4 promotion in view of the merit position, their name was discarded. It is apparent from the records that thereafter the petitioners were not considered for promotion.
5. Mr. Sinha, learned counsel appearing for the petitioner has having referred to the paragraph 11 of the writ petition, contended that the proforma respondents were also holding the post of the Constable Driver alike the petitioners and they have been given promotion to the post of Assistant Sub-Inspector of police by the order dated 29.10.2010. But when the petitioners approached the competent authority to give them permission to appear in the departmental examination afresh, they were denied on the ground that the post the petitioners are holding are not within the province of consideration. For purpose of reference, the paragraph 11 of the writ petition is as a whole reproduced hereunder:
"That, the proforma-respondents No. 4,5,6 and 7 who held the post of Constable-Driver, shortly CD, like petitioners, have been appointed to the post of Assistant Sub-Inspector of police (UB) vide order in No. 4419-30/F.35/DGP/RSV/10 dated 29.10.2010 (proforma-respondents No. 4 and 5) and order in No. 1378- 89/F.35/DGP/RSV/2011 dated 2.5.2012 under the same Recruitment Rules of Assistant Sub-Inspector of Police (UB) (Men & Women) Rules, 2007 published vide Notification dated 8.7.2008. As such the action of the respondent authority vide letters dated 26.8.2013 and message dated 7.8.2013 so far as petitioners are concerned, is discriminatory and illegal and deserving to be set-aside and quashed".
6. In reply to the said averments made by the petitioners, the respondents have placed their reply in paragraph 17 which reads as under:
"That, in regard to the statement made in paragraph 11 of the Writ petition it is stated that the proforma respondent No. 4,5,6 &
7 who held the post of Constable Driver, Grade-III, like petitioners have been appointed to the rank of ASI of police vide Order no. 4419-30/F.35/DGP/RSV/2010 dated 29.10.2010 and Order No. 1378-89/F.35/DGP/RSV/2011, dated 02.05.2012 under the same Recruitment Rules earlier. This refers Police Headquarter Order No. 42/10 dated 29.01.2010 and 257/2010 dated 28.05.2010, but for promotion to the rank of ASI Men a separate Departmental Promotion Committee has been constituted vide Police Headquarter Order No. 98/12 dated 18.05.2012. And the Chairman, Departmental Promotion Committee rejected the prayer of the petitioners after proper examination, as there is no provision for Constable Driver, Grade-III, to appear for promotion W.P.(C) No. 287 of 2013 5 to the rank of ASI, Men as per existing Recruitment Rules. Hence, the acts of the Chairman, Departmental Promotion Committee in respect of rejection of the prayer of petitioners were legal. On the other hand for promotion of Constable Driver a separate Recruitment Rules namely Tripura Police Drivers Recruitment and condition of Service Rules, 2009, Men and Women vide Home Department Notification No. F.1(37)-PD/2005 dated 29.10.2009 is in force in Tripura. As per the above noted rules there is a better scope for Constable Driver, Grade-III for promotion to the rank of Head Constable Driver, Grade-II and Selection Grade Head Constable Driver, Grade-I. As per Recruitment Rules of ASI Constable Driver is not eligible to be appointed/promoted as ASI. Due to mistake name of Constable Driver has been recommended by the DPC for appointment". Mr. Sinha, learned counsel, has therefore, contended that the petitioners have been discriminated having not considered them for promotion to the post of ASI (man).
7. Mr. Chakraborty, learned Additional Government Advocate appearing for the respondents has plainly submitted that when the Rules framed under the proviso to Article 309 of the Constitution of India, does not empower the appointing authority to consider the person holding the post of Constable Driver for the promotion to the post of ASI (man), even the omission or the mistake whatever it may be called, that cannot be shown as the precedent inasmuch as observance of law as laid down by the subordinate legislation is the constitutional obligation of the State under Article 14 and 16 of the Constitution of India.
8. There cannot be any amount of dispute about the proposition of law. A mistake, a past omission or an illegality cannot be cited for purpose of taking the benefit of such mistake, omission or illegality under Article 14 of the Constitution of India. Article 14 as well as Article 16 of the Constitution of India is structured on equality not otherwise. It is not a device for perpetration of mistake, omission illegality. Atleast the court is prohibited by law to repeat or to redo the same kind of mistake, omission or illegality. The relevant provisions of Recruitment Rules as reproduced above would clearly demonstrate that the person occupying W.P.(C) No. 287 of 2013 6 the position of Head-Constable or the Constable can only be considered for purpose of promotion to the post of ASI. The petitioners are admittedly borne in the post of the Constable Driver which is distinctly a separate post for which a separate channel of promotion or career advancement has been prescribed by a separate set of Rules and, hence, the petitioners do not have any right to claim that the petitioners shall be considered for promotion to the post of ASI and for that purpose, they should be allowed to appear in the departmental examinations as devised by the Recruitment Rules and as stated above.
9. Having held thus, this petition being devoid of merit stands dismissed. However, there shall be no order as to costs.
JUDGE Saikat W.P.(C) No. 287 of 2013