C/7743 Meghnad Saha and 23 Ors v. The State of Tripura and 8 Ors

JUDGMENT & ORDER (ORAL)

Heard Mr. P. Roy Barman, learned senior counsel assisted by Mr. Dipjyoti Paul, learned counsel for the petitioners and Mr. D. Sharma, learned Additional Government Advocate for the respondents-State.

2.

Petitioners are serving as Constables in both Armed Branch and Un-armed Branch under the Police Department, Government of Tripura. About 512 Head Constables (Un-armed Branch & Armed Branch) Men and Naik (Armed Branch) Men have been conferred the rank of Assistant Sub-Inspector of Police (Un-armed Branch) Men on a temporary basis by impugned PHQ Order No.207/2022 dated 22.12.2022 issued by the Police Headquarters, Tripura with the following conditions: "2. The officers mentioned in this order shall hold full duty charge, subject to the following conditions:

(i) The officer shall not be entitled to any financial benefits, such as extra pay and allowances, that are admissible for the higher post, except drawal of honorarium for holding a higher Group-C post at monthly rate prescribed vide Finance Department Memorandum No.F.1(15)-FIN(EXPDT-II)/2019/4107-4357 dated 24/09/2020.

(ii) The officer shall be eligible to wear the shoulder badge of Asstt. Sub-Inspector of Police on his uniform.

(iii) The officer has no criminal case or departmental proceeding pending against him.

(iv) The promotion of the officer in the normal course, as per existing guidelines, would not be affected, in any way, by the date from which he has been allowed to temporarily hold charge of the highest post.

(v) The holding of full duty charge of Asstt. Sub-Inspector of Police on a temporary basis would not affect the inter-se seniority of the officer in his original post.

(vi) The officer may be reverted to his original rank at any time, and upon such reversion, the officer shall wear the uniform badge of his original rank.

(vii) The officer shall submit an undertaking that he will adhere to the aforesaid conditions at the time of assumption of charge in the higher post.

¶3The holding of full duty charge of Asstt. Sub-Inspector of Police (Un-armed Branch) on a temporary basis would not change the inter-se seniority of the officers in the rank of Head Constable (UB & AB) and Naik (AB). This would also not affect the procedure followed during regular promotion to the rank of Asstt. Sub-Inspector of Police (Un-armed Branch) at a subsequent stage in respect of any officer.

¶4While assuming the full duty charge of Asstt. Sub-Inspector of Police (Un-armed Branch), the officers shall submit an undertaking to the PHQ, Tripura, through proper channel, stating that he shall adhere to the conditions mentioned in Para 2 of this order.

¶5If any criminal case or departmental proceeding is instituted subsequently against the officers mentioned in this order, then they shall cease to hold the full duty charge of Asstt. Sub-Inspector of Police (UB) and they shall no longer be eligible to wear the shoulder badge of the rank of Asstt. Sub-Inspector of Police on their uniform. Sd/- (Amitabh Ranjan, IPS) Director General of Police, Tripura."

Petitioners, being aggrieved, have preferred this writ petition seeking quashing of the PHQ Order No.207/2022 dated 22.12.2022 [Annexure-6] or in the alternative to confer the rank of Assistant Sub-Inspector of Police (Un-armed Branch) Men to each of the petitioners along with all consequential benefits which flow from a date anterior to the date on which respondents No.4 to 9 and others have been conferred the rank of ASI of Police (Un-armed Branch) Men. They have also prayed for direction upon the official respondents to consider each of the petitioners for promotion to the rank of ASI of Police (Un-armed Branch) Men.

3.

On behalf of the petitioners, reliance is placed upon the Schedule to the Recruitment of Assistant Sub-Inspector of Police (Un-armed Branch) (Men & Women) Rules, 2007 (Recruitment Rules of 2007, for short) notified on 08.07.2008 [Annexure-1], in particular Clauses 10 & 11 which are extracted hereunder:

SCHEDULE

¶10Method of recruitment whether by direct or by promotion or transfer and percentage of the vacancies to be filled up by various methods 100% by promotion

¶11In case of recruitment by promotion/deputation/transfer, grades from which promotion/ deputation/transfer is to be made From amongst Head Constables (both AB/UB) (Men & Women), Naiks (Men & Women), LNK (Men & Women), Constables (UB/AB) (Men & Women), and Constable Armourer (Men & Women) as have two year service as constable on 1st day of January of year in which DPC is convened on the basis of departmental examination as prescribed by the State Govt. Procedure for holding examination is in annexure.

According to them, petitioners No.1 to 16 have cleared all the three parts of departmental exam and rest of the petitioners No.17 to 24 have passed Part-I and Part-II exams, and though have appeared in Part-III examination but results have not been published, even as per the case of the respondents. However, they have not been considered for conferring the rank of ASI (UB) Men even on temporary basis compared to the persons named in the PHQ Order No.207/2022.

4.

In reply to the contention of the petitioners relying upon the Recruitment Rules of 2007 dated 08.07.2008, it is contended by learned Additional Government Advocate for the respondents-State that promotion to the rank of ASI (UB) is done from amongst Head Constables (AB/UB) (Men & Women), Naiks (Men & Women), LNK (Men & Women), Constables (UB/AB) (Men & Women), and Constable Armourer (Men & Women) having two years' service as Constable on 1st day of the year in which DPC is convened. As per the Recruitment Rules of 2007, procedure for holding examination for the post of ASI (UB) (Men & Women) is done in three parts –

Part-I, Part-II and Part-III. It is further averred that Recruitment Rules provide that those candidates, who have been declared as passed once in Part-I and or Part-II, will not be required to reappear in the same part of examination. The panel of the candidates fit for promotion to the rank of ASI (UB) (Men & Women) shall be prepared in order of merit in accordance with the result of Part-III only. Separate panels will be prepared for candidates belonging to General, ST & SC categories. The panel for un-reserved (General) category will include the names of Constables of all categories in the order of merit. Similarly, the panels for ST and SC category will contain the names of candidates of ST & SC categories only in order of merit. The total number of names in the panel shall not be more than the number of existing vacancies plus the anticipated vacancies in the coming one year.

5.

Thereafter, the respondents have made categorical statement that in the instant case, the full duty charge of higher post has been conferred on a temporary basis as per seniority, suitability and eligibility of Head Constable (UB/AB) Men and Naik (AB) Men as per PHQ Order No.207/2022 as per approval conveyed by the Home Department in the interest of enhancing operational efficiency, deployment in law & order functions, traffic law enforcement and investigation of cases, etc. of Tripura Police on the basis of memorandum dated 24.09.2020 issued by the Finance Department. It is also contended that DPCs were earlier held for promotion purposes and not for conferring of higher duty charge. The conferring of ASI rank as per Finance Department memorandum dated 24.09.2020 does not amount to ad-hoc promotion. Respondents then state that a new promotion policy dated

22.06.2021 has been issued by the Government of Tripura [Annexure-D to the

Counter Affidavit of respondents No.1 to 3]. As per point No.8 (vii) of the notification dated 22.06.2021, ad-hoc promotion to different ranks of Tripura Police is to be done, starting from highest grade of cadre service first. Till date, promotions on ad-hoc basis have been granted for the post of Inspector of Police from the feeder post of Sub-Inspector of Police. Further, a DPC has been constituted for ad-hoc promotion to Sub-Inspector (UB) and Sub-Inspector

(AB) from its feeder posts. The impugned PHQ Order No.207/2022 has only conferred rank of ASI (UB) Men on temporary basis to 512 Head Constables (UB & AB) and Naik (AB) Men. It has also been further stated that the rank of ASI (UB) (Men/Women) were conferred on a temporary basis as per seniority, suitability and eligibility of Head Constable (UB/AB) Men and Naik (AB) Men as per PHQ Order No.207/2022.

6.

The Counter Affidavit also enumerates the conditions imposed in the impugned PHQ Order No.207/2022 which indicates that the officers shall not be entitled to any financial benefits, except drawal of honorarium for holding a higher Group-C post at a monthly rate. They shall be eligible to wear the shoulder badge of ASI of Police on their uniform. There should be no criminal or departmental proceeding pending against them. The promotion of officers in normal course, as per existing guidelines, would not be affected, in any way, by the date from which they have been allowed to temporarily hold charge of the higher post. The holding of charge of ASI on a temporary basis would not affect the inter-se seniority of the officer in his original post. The officer may be reverted to his original rank at any time, and upon such reversion, the officer shall wear the uniform badge of his original rank. The officer shall submit an undertaking that he will adhere to the aforesaid

conditions at the time of assumption of charge in the higher post. The holding of full duty charge of ASI (UB) on a temporary basis would not change the inter-se seniority of the officers in the rank of Head Constable (UB & AB) and Naik (AB). This would also not affect the procedure followed during regular promotion to the rank of ASI (UB) at a subsequent stage in respect of any officer.

7.

Respondents contend that the petitioners have given facts related to previous DPCs which do not hold any ground here as no promotion has been done. It is only conferment of the rank of ASI (UB) and does not amount of even ad-hoc promotion. Learned counsel for the respondents-State submits that the matter relating to promotion to the post of ASI (UB) on regular basis is the subject matter of SLP(C) No.34965/2015 (Sri Bidhan Bhowmik & 3 others vs. The State of Tripura & others) where the Apex Court has granted a stay upon the order dated 29.06.2016 passed by the Hon'ble Division Bench of this Court. The case is pending for hearing before the Apex Court. This SLP is related to promotion to the post of ASI (UB).

8.

Further Additional Affidavit was filed by respondents No.1 to 3 pursuant to the order dated 02.06.2023. This affidavit also reiterates that by the impugned order only the concerned Head Constables (UB & AB) Men and Naik (AB) Men have been conferred the rank of ASI (UB) Men on a temporary basis as per seniority, suitability and eligibility in the interest of enhancing the operational efficiency in the field formation and other law & order functions, etc. with some conditions. Averments have also been made relating to ad-hoc promotional exercise to the rank of SI (AB) (Men & Women) for which DPC

was held on 29.05.2023 and the matter has been placed for concurrence of TPSC through Home Department.

9.

In reply to the Counter Affidavit of the respondents, learned counsel for the petitioners has contended that petitioners do fulfil the eligibility conditions prescribed under Clause 11 of the Schedule to Recruitment Rules of 2007 and are entitled to be considered for regular promotion to the post of ASI

(UB) Men, but they have been left out. If no DPC has been held before conferring the rank of ASI (UB/AB) Men on temporary basis, the respondents could not have judged the suitability and eligibility of the concerned candidates who have been conferred such temporary rank. The official respondents have adopted an arbitrary criterion to confer a higher rank as ASI (UB/AB) Men to these persons which in effect, gives them all the powers of the ASI during the period they remain on the full duty charge. As such, the impugned action suffers from arbitrariness and illegality failing to adhere to a uniform yardstick even in the matter of conferment of a higher rank on temporary basis to the post of ASI (UB/AB) Men.

10.

The issue had been deliberated upon a number of times in the previous dates. Learned counsel for the respondents-State was allowed further time to make the position of the respondents clear as to how this exercise has been conducted ignoring the relevant conditions prescribed under the Recruitment Rules of 2007 which require passing of departmental exam for being eligible to be promoted on regular basis to the post of ASI (UB) (Men & Women) and on what uniform standards, applicable to incumbents who are eligible for promotion to the post of ASI (UB) (Men & Women) under the

Recruitment Rules of 2007, this conferment of rank on a temporary basis has also been undertaken.

11.

In order to substantiate the stand of the respondents, learned Additional Government Advocate for the State has, upon instructions, placed the Recruitment of Naik (Armed) (Men & Women) Rules, 2010 notified on

16.02.2010 for promotion to the rank of Naik (AB) (Men & Women) from the post of Constable. He has also placed the Recruitment Rules called "Head Constable/Havilder (Armed Branch) (Men & Women), Police Directorate, Recruitment Rules, 2006" notified on 23.10.2006 whereunder promotion to the post of Head Constable/Havilder (AB) (Men & Women) is to be undertaken from Naiks who have passed the departmental exam and have at least two years' service as Naik. He has also placed the Recruitment Rules called "Recruitment of Head Constable (Un-armed) Men & Women Rules, 2008" notified on 26.12.2008 for promotion to the post of Head Constable (UB) (Men & Women) and Recruitment Rules of 2007 notified on 08.07.2008, which is also relied upon by learned counsel for the petitioners.

12.

On the basis of these recruitment rules, learned Additional Government Advocate for the respondents-State submits that the normal hierarchy of promotion on regular basis is from the rank of Constable to the rank of Naik (AB) (Men & Women) as per Recruitment Rules, 2010 upon fulfilment of the conditions prescribed under Clause 11 thereof. Further, for promotion to the post of Head Constable/Havilder (AB) (Men & Women), the Recruitment Rules dated 23.10.2006 prescribes that it would be filled up from amongst Naiks, who have passed the departmental exam and have two years'

service as Naik, as per Clause 11 thereof. Further, the Recruitment Rules of Head Constable (UB) dated 26.12.2008 provide for promotion to the post of Head Constable (UB) (Men & Women) from Constables (UB & AB), Constables (Armourer), Lance Naiks and Naiks (AB) not having less than two years' service in the grade as Constable (UB & AB). In such promotional exercise, the quota is 95% from men and 5% from women. Lastly the Recruitment Rules of 2007 dated 08.07.2008 [Annexure-1] for promotion to the post of ASI of Police (UB) (Men & Women), prescribe eligibility conditions for regular promotion from amongst Head Constables (AB & UB) (Men & Women), Naiks (Men & Women), LNK (Men & Women), Constable (UB/AB) (Men & Women) and Constable (Armourer) (Men & Women) having two years' service as Constable on 1st day of January of the year in which DPC is convened on the basis of departmental exam as prescribed by the State Government.

13.

In the exercise leading to issuance of the impugned PHQ Order No.207/2022, no Departmental Promotion Committee meeting has been convened because this is not a regular promotional exercise. As per the recruitment rules referred to herein above, a Constable in ordinary course is entitled to be considered for regular promotion to the post of Naik (AB) (Men & Women) as per Recruitment Rules of 2010 on the condition of having passed departmental exam and having put in two years' of service. Similarly for being promoted to the post of Head Constable/Havilder (AB) (Men & Women), only Naiks, who have passed the departmental exam and have fulfilled two years' of qualifying service as Naik, are eligible to be considered for promotion. Further, for the post of Head Constable (UB) (Men & Women), the Recruitment Rules

of 2008 make the Constables (UB & AB), Constables (Armourer), Lance Naiks and Naiks (AB) not having less than two years' service in the grade as Constable (UB & AB) who have passed the departmental exam as prescribed in the Recruitment Rules and have rendered not less than two years' of service as Constable (UB/AB) eligible for being considered for promotion. The Recruitment Rules of 2007, relating to recruitment of Assistant Sub-Inspector of Police (UB) (Men & Women), provide that for promotion to the post of ASI

(UB) (Men & Women), Head Constables (AB & UB) (Men & Women), Naiks (Man & Women), LNK (Men & Women), Constable (UB/AB) (Men & Women) and Constable Armourer (Men & Women) with two years' of service as Constable on the 1st day of January in which DPC is convened and passing of departmental exam is a must.

14.

It is apparent from a reading of the recruitment rules referred to in some detail hereinabove, the Constable (UB/AB) forms the lowest rank in the hierarchy above whom are Naiks and next Head Constable and then ASI. It is not in dispute that by the impugned PHQ Order No.207/2022, 512 persons were conferred the rank of ASI (UB) Men from the post of Head Constable (UB & AB) Men and Naik (AB) Men. No Departmental Promotion Committee meeting has, therefore, been held. Passing of a departmental exam is a relevant eligibility criterion for regular promotional exercise. Since regular promotional exercise is not being undertaken due to pendency of the case before the Apex Court in relation to promotion to the post of ASI (UB). At present the State Government is granting promotion on ad-hoc basis in view of the promotion policy dated 22.06.2021. This impugned exercise is not even ad-hoc promotion. Under this impugned exercise, only Head Constables and Naiks have been

considered for being conferred rank of ASI (UB) on a temporary basis to meet the operational efficiency, deployment in law & order functions, traffic law enforcement and investigation of cases, etc. The instant exercise even does not disturb the inter-se seniority amongst the persons eligible for being considered for regular promotion to the post of ASI in Police (UB) (Men & Women) on regular basis or even on ad-hoc basis. In order to perform exigencies of law and order duty, traffic laws enforcement, etc., the State Government had to undertake this exercise of conferment of rank to incumbents holding the post of Head Constable and Naik on temporary basis as ASI (UB) (Men). These Head Constables or Naiks have come in their cadre on promotion from the post of Constables (UB/AB). As such, the criteria employed by the respondents-State for conferring rank of ASI (UB) Men on temporary basis to these incumbents is purely based upon their positions in the cadre of Head Constable and Naik which are definitely above the rank of Constable to which the petitioners belong. Since it is not a regular promotional exercise, the fact that the petitioners have passed the departmental exam and are eligible for such promotional exercise could not be considered to be a denial of a legal right so far as the question of conferment of rank of ASI (UB) Men on temporary basis is concerned as per the impugned PHQ Order No.207/2022 dated 22.12.2022.

15.

The discussion made hereinabove, therefore, leads to the conclusion that in the matter of conferment of rank of ASI (UB) Men on temporary basis to the incumbents of the cadre of Head Constables and Naiks which is not a promotion or even an ad-hoc promotion, no arbitrariness or illegality has been done nor the petitioners have been unfairly left out in the matter of conferment of the rank of ASI (UB) Men as undisputedly, they are

holding the rank of Constable, which is at the lowest hierarchy in the set up. The impugned order also very clearly mentions that the conferment of full duty charge on the Head Constables and Naiks with only an honorarium and no extra pay and allowances, in no way, would affect the inter-se seniority of the officials in their original rank and that would not affect the promotion of the officials in the normal course.

16.

As such, this Court is of the considered view that the impugned order does not suffer from any vices of arbitrariness, discrimination or illegality which calls for interference by this Court under Article 226 of the Constitution of India.

17.

Writ petition is accordingly dismissed. Pending application(s), if any, shall stand disposed of.

(APARESH KUMAR SINGH), CJ

Pijush/ MUNNA SAHA Date: 2024.02.29 16:28:21 +05'30'

HIGH COURT OF TRIPURA AGARTALA WP(C) No.60 of 2023 1. C/7743 Meghnad Saha, Son of- Nim Chand Saha, Resident of Vill. and P.O.- Mohan Bhog, P.S.-Melagarh, Sepahijala, Tripura, Pin-799105. (Age-47 years) 2. C/11266 Nikhil Chandra Barman, Son of-Lt Satish Chandra Barman, Resident of-Vill. and P.O.-Rabindra Nagar, Sepahijala, P.S.-Sonamura, Tripura, Pin-799131. (Age-46 years) 3. C/1703 Ratan Chandra Mahajan, Son of Sri Jogendra Kumar Mahajan, Resident of- Vill.-West Rajnagar, P.O.-Rajnagar, P.S.-PR Bari, South Tripura, Pin-799150. (Age-46 years) 4. C/337 Nantu Chanda, Son of Lt Subhash Chanda, Resident of-Vill.-Unnayan Sangha, North Badharghat, P.O. and P.S.-A.D. Nagar, Tripura, Pin-799003. (Age - 42 years) 5. T/11373 Sahajahan Majumder, Son of Babul Miah, Resident of-Vill. and P.O.-Durgapur, P.S.-Sonamura, Sepahijala, Tripura, Pin-799131. (Age-43 years) 6. C/432 Manoj Kanti Ghosh, Son of Lt. Sachindra Ghosh, Resident of Vill. and P.O.-A.D. Nagar, Agartala, West Tripura, Pin-799003. (Age - 44 years) 7. C/6600 Md Azim Uddin, Son of- Lt Badar Uddin, Resident of Vill. and P.O.- South Manik Bhandar, P.S. Kamalpur, Dhalai, Tripura, Pin-799287. (Age-46 years) 8. C/8003 Bipul Saha, Son of Lt Sunil Chandra Saha, Resident of Vill.- Chatak Chari, P.O.-Sonai Bazar, P.S.- Sabroom, South Tripura, Pin-799145. (Age-43 years) 9. C/9285 Paritosh Das, Son of Lt. Makhan Das, Resident of - Vill. and P.O.- Aralia, P.S.- East Agartala, Pin-799004. (Age - 49 years) 10. C/8428 Anup Saha, Son of Lt Anil Ch. Saha, Resident of-Vill. and P.O.- A.D. Nagar, P.S.- A D Nagar, Agartala, Tripura, Pin-799003. (Age-43 years) 11. C/11782 Sanjoy Das, Son of - Satyendra Kr Das, Resident of-Vill-Ghilatali (Police Para), P.O.- Gilatali Bazar, P.S.-Kalyanpur, Khowai, Tripura, Pin- 799203. (Age-45 years) 12. C/2263 Shyamal Majumder, Son of Sri Ratan Majumder, Resident of Vill- Kashipur, P.O.-Rasham Bagan, West Tripura, Pin-799008. (Age-44 years) 13. C/7474 Sajal Paul, Son of Sri Kalipada Paul, Resident of Vill.-Ranjitnagar, P.O.-Ramnagar, P.S.- West Agartala, West Tripura, Pin-799002.(Age-43 years) 14. T/11235 Sudip Bhattacharjee, Son of- Lt. Ranjit Bhattacharjee, Resident of Vill. and P.O.-Chandigarh, P.S.-Melagarh, Sepahijala, Tripura, Pin-799115. (Age - 42 years) 15. C/2263 Md. Abdul Karim, Son of- Lt Md. Abdul Kadir, Resident of Vill.- Nandan Nagar Masjid Para, P.O.- Bankumari, Tripura, P.S.-NCC, Pin- 799006. (Age- 48 years) 16. C7601 Maran Debnath, Son of Nepal Krishna Debnath, Resident of P.O. and P.S.-A.D. Nagar, Agartala, West Tripura, Pin-799003. (Age-44 years) 17. C/7976 Kallol Sharma, Son of Lt Ranjit Sharma, Resident of Vill.- Sachindra Nagar, P.O.-North Ceabri, Khowai, Tripura, Pin - 799207. (Age - 41 years) 18. C/7414 Sanjib Kumar Deb, Son of Sri Jiban Kumar Deb, Resident of - Vill.- Ramnagar Road No.08, P.O.-Ramnagar, P.S.- West Agartala, Tripura, Pin - 799002. (Age-36 years) 19. C/452 Uttam Deb, Son of- Lt. Amulya Deb, Resident of - Vill.-Chanmuri, P.O.-Tebaria, P.S.-Airport, Tripura, Pin - 799015. (Age - 45 years) 20. C/6661 Parshu Ranjan Kapali, Son of - Lt Chand Mohan Kapali, Resident of - Vill.-Krishnapur, P.O.-Laxmipur, P.S.- Gandachara, Dhalai, Tripura, Pin - 799284. (Age - 44 years) 21. C/2964 Md. Jahir Hossen, Son of Sekh Farid Miah, Resident of Vill. and P.O.- Rangkang, P.S.-Birganj, Gomati, Tripura, Pin- 799101. (Age - 44 years) 22. C/3828 Sujit Ghosh, Son of Sri Nepal Ch. Ghosh, Resident of Vill. and P.O.-South Charilam, P.S.-Bishramganj, Sepahijala, Tripura, Pin-799103. (Age-44 years) 23. I/C HC Goutam Roy, Son of- Lt Kalipada Roy, Resident of Vill. and P.O.- Ramnagar Road No. 05, Agartala, West Tripura, Pin - 799002. (Age - 49 years) 24. C/7833 Sanjoy Debnath, Son of Sri Santosh Debnath, Resident of - Vill.- Hatipara, P.O.-Salbagan P.S.- Airport, West Tripura, Pin- 799012. (Age - 44 years) .........Petitioner(s) Versus 1. The State of Tripura, (to be represented by) the Secretary, Home Department, Government of Tripura, New Secretariat Building