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HIGH COURT OF TRIPURA
AGARTALA
WP(C) No.668/2023
Sri Sudhangshu Sarkar, S/O. Late Purnachandra Sarkar, Permanent Resident of
Joynagar Middle Road, Agartala, West Tripura, Presently residing at Mirzapur
PWD Quarter Complex, P.O.-Belonia, South Tripura.
Petitioner(s).
………
V E R S U S
1. The State of Tripura, Represented by its Principal Secretary, Department of
General Administration (Personal & Training), Government of Tripura, New
Capital Complex, Agartala, West Tripura.
2. The Secretary, Department of General Administration (Personal & Training),
Government of Tripura, Agartala, District-West Tripura.
3. The Deputy Secretary, Department of General Administration (Personal &
Training), Government of Tripura, Agartala, District-West Tripura.
4. The Review Selection Committee, (as constituted by the Government for
promotion to the post of TCS Grade-I (Selection Grade), Department of
General Administration (Personal & Training), Represented by the Chairman,
Official Address at-Office of the Tripura Public Service Commission, Agartala,
District-West Tripura.
5. The Selection Committee, (as constituted by the Government for promotion
to the post of TCS Grade-I (Senior Selection Grade), Department of General
Administration (Personal & Training), Represented by the Chairman, Official
Address at-Office of the Tripura Public Service Commission, Agartala,
District-West Tripura.
6. The District Magistrate & Collector, Khowai, Tripura.
7. The Under Secretary, Department of General Administration (Personal &
Training), Government of Tripura, Agartala, District-West Tripura.
Respondent(s).
………
For Petitioner(s) : Ms. R. Purkayastha, Advocate.
For Respondent(s) : Mr. Mangal Debbarma, Addl. G.A.
APARESH KUMAR SINGH
HON’BLE THE CHIEF JUSTICE MR.
th
Date of hearing and judgment: 27 September, 2024.
Whether fit for reporting : NO.
JUDGMENT & ORDER(ORAL)
Heard Ms. R. Purkayastha, learned counsel appearing for the
petitioner and Mr. Mangal Debbarma, learned Addl. Government Advocate
appearing for the respondents-State.
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2. At the outset, be it indicated that during pendency of the writ
petition, an order was passed on 15.02.2024 by the General Administration
(Personal & Training) Department, Government of Tripura whereby the
competent authority has held that there is no scope for giving retrospective
effect to the promotion of the petitioner from TCS Grade-II (TCS Grade-I on
ad hoc basis) to the post of TCS Grade-I (Selection Grade) with effect from the
date of cessation of minor penalty on 01.07.2018. Petitioner was allowed
promotion from TCS Grade-II to TCS Grade-I on ad hoc basis prospectively
w.e.f. 03.07.2021 after expiry of his currency period of minor penalty on
01.07.2018 along with others as per the ad hoc Promotion Policy, 2021 of the
State Government. According to the respondents, he was not superseded by any
of his juniors within the period when he became entitled to be considered for
promotion, i.e. from 01.07.2018 to 03.07.2021. This order dated 15.02.2024
has been challenged by way of an amendment which was allowed by order
dated 29.02.2024.
3. It is pertinent to refer to the background of the original writ
petition in brief to appreciate the questions raised. Petitioner had approached
this Court with a prayer to direct the respondents to treat the promotion of the
petitioner to TCS Grade-I with retrospective effect. Petitioner had originally
approached this Court for setting aside the minutes of the Review Selection
Committee dated 05.04.2023 whereby he had been found ineligible for
promotion retrospectively w.e.f. 26.03.2015. He also had prayed for a direction
upon the respondents to treat his promotion to the post of TCS Grade-I
(Selection Grade) on regular basis w.e.f. 30.03.2015 alleging that his juniors
were promoted to the post of TCS Grade-I (Selection Grade) along with all
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consequential benefits. He also sought consequential promotion to the post of
TCS Grade-I (Senior Selection Grade) with retrospective effect from
22.03.2022 when his juniors were promoted to the post of TCS Grade-I (Senior
Selection Grade) with all consequential benefits.
4. Petitioner has also laid challenge to the decision dated 15.02.2024
through the amended writ petition whereby the respondents have declined to
grant retrospective effect to his promotion w.e.f. 01.07.2018, i.e. the date of
cessation of minor penalty. Petitioner has superannuated in the meantime in the
month of July, 2024.
The petitioner's case was that upon cessation of the minor penalty
imposed upon him w.e.f. 01.07.2018, he was eligible for further promotion.
The Review Selection Committee meeting held on 12.01.2024 opined that
petitioner could get ad hoc promotion with prospective effect to the post of
TCS Grade-I (Selection Grade) as per ad hoc Promotion Policy dated
22.06.2021 as a one-time measure. It is pertinent to mention here that no
Review Selection Committee meeting had been held to consider the case of the
petitioner for promotion to TCS Grade-I (Selection Grade) after cessation of
the minor penalty on 01.07.2018 till he was granted promotion to TCS Grade-I
(Selection Grade) on 03.07.2021 on ad hoc basis with prospective effect.
5. Learned counsel for the petitioner contended that non-holding of
Review Selection Committee meeting even after cessation of his minor penalty
w.e.f. 01.07.2018 any time earlier to 03.07.2021 has resulted in denial of
further promotion from the due date. In substance, the legitimate expectation of
the petitioner for being considered for promotion to TCS Grade-I (Selection
Grade) after cessation of minor penalty w.e.f. 01.07.2018 was not taken up
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with any promptitude delaying the chances of promotion to TCS Grade-I
(Senior Selection Grade) in the background that his juniors have been granted
such promotion. A Review Selection Committee meeting was held on
12.01.2024 during pendency of the writ petition that led to passing of the order
dated 15.02.2024. The order dated 15.02.2024 which contains the details of the
sequence of events and the grounds on which the respondents have refused to
grant retrospective effect to the promotion to TCS Grade-I (Selection Grade) is
extracted hereunder:
"No.F.41(10)-GA(P&T)/2023
GOVERNMENT OF TRIPURA
GENERAL ADMINISTRATION (PERSONNEL & TRAINING) DEPARTMENT
th
Dated, Agartala, the 15 February, 2024
O R D E R
WHEREAS; a Selection Committee meeting was held on 26-03-2015 to consider
promotion of TCS Gr-II officers to the post of TCS Gr-I (Selection Grade). In the said
meeting, name of 8(eight) TCS Gr-II officers were under the zone of consideration wherein
name of Shri Sudhangshu Sarkar, TCS Gr-II was at Sl. No. 6.
AND
WHEREAS; at that material period a disciplinary proceeding was initiated against
Shri Sudhangshu Sarkar, TCS by the GA(AR) Department (Disciplinary Authority) vide
Memo. No.F.11(5)-GA(AR)/2013/2012-14 dated 23-10-2013 on five article of charges and
the said proceeding was pending against him.
AND
WHEREAS; the Selection Committee after due consideration of the ACR gradings
and other aspects found 3(three)TCS Gr-II officers suitable and recommended their names
for promotion to the post of TCS Gr-I (Selection Grade). But, the Selection Committee
could not decide whether Shri Sudhangshu Sarkar (SC), TCS Gr-II was "Fit" or "Unfit" for
promotion due to non-availability of all relevant ACRs.
AND
WHEREAS; on receipt of the findings of the Inquiring Authority, the GA(AR)
Department had imposed a Major Penalty of withholding 2(two) increments with cumulative
effect upon Shri Sudhangshu Sarkar, TCS Gr-II vide order No.11(5)- GA(AR)/2013/522-24
dated 17-03-2017.
AND
WHEREAS; Shri Sudhangshu Sarkar filed a writ petition vide WP(C) No. 1230 of
2018 before the Hon'ble High Court of Tripura against the above order, and as per
direction/judgment of the Hon'ble High Court of Tripura, the Disciplinary Authority passed
a fresh order imposing a Minor penalty of withholding 2(two) increments without
cumulative effect upon Shri Sudhangshu Sarkar, TCS vide order No. 11(5)-
GA(AR)/2013/172-73 dated 19-01-2021. Shri Sudhangshu Sarkar further filed a writ appeal
WA No. 203 of 2020 before the Hon'ble High Court and the Hon'ble Divisional Bench by
order dated 29-07-2022 reduced the penalty of 2(two) increments without cumulative effect
to 1(one) increment without cumulative effect. In compliance with the said direction of the
Hon'ble High Court of Tripura, the Disciplinary Authority had issued a fresh order imposing
a penalty of withholding of 1(one) increment without cumulative effect upon Shri
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Sudhangshu Sarkar, TCS vide order No.11(5)-GA(AR)/2013/1452-1453 dated 29 October,
2022.
AND
WHEREAS; as per norms, no one can be allowed promotion during the pendency of
the Disciplinary Proceeding. Moreover, during the currency period of punishment,
promotion can also be not allowed.
AND
WHEREAS; Para-26 of Chapter 2-Suspension-A Digest of CCS(CC&A) Rules,
1965 provides that "If any penalty is imposed on the officer as a result of the disciplinary
proceeding or if he is found guilty in the Court proceedings against him, the findings in the
sealed cover(s) will not be acted upon. His case for promotion has to be considered in the
usual course by the next Departmental Promotion Committee, after the conclusion of the
disciplinary/Court proceedings, having regard to the penalty imposed on him.
AND
WHEREAS; Shri Sarkar has been awarded a statutory Minor penalty as defined in
the Rule, 11 of the CCS(CC&A) Rules, 1965, hence, it is crystal clear that Shri Sarkar has
not been fully exonerated from the Disciplinary Proceeding. Therefore, Shri Sudhangshu
Sarkar, TCS is not entitled to get promotion to the post of TCS Gr-I (Selection Grade) with
effect from the date on which his junior was allowed promotion.
AND
WHEREAS; currency period of the penalty of Shri Sarkar has been expired on 01-
07-2018 & he has become eligible for promotion to the post of TCS Gr-I (Selection Grade),
but, promotion of the State Govt. employees remained with held w.e.f. 01-04-2017 due to
"Status quo" order passed by the Hon'ble Supreme Court of India in connection with SLP
(C) No.19765-19767 of 2015 regarding Reservation Policy of State Govt.
AND
WHEREAS; the State Govt. has framed an ad-hoc Promotion Policy on 22-06-2021
to allow ad-hoc promotion with prospective effect as one time measure pending final
outcome of the SLP.
AND
WHEREAS; as per above promotion policy, Shri Sudhangshu Sarkar, TCS Gr-Il has
already been promoted to the post of TCS Gr-I (Selection Grade) on ad-hoc basis as a one-
time measure with prospective date vide this Department Notification No.F.2(11)-
rd
GA(P&T)/2021 dated 3 July, 2021.
AND
WHEREAS; having been aggrieved with the ad-hoc promotion with prospective
effect Shri Sarkar has filed a writ petition No. WP (C) 829 of 2022 before the Hon'ble High
Court of Tripura. As per direction of the Hon'ble High Court of Tripura dated 07-02-2023, a
Review Selection Committee meeting has been held on 05-04-2023.
AND
WHEREAS; Review Selection Committee in its meeting held on 05-04-2023,
viewed that as per DPC procedure adopted by the State Govt. vide GA(P&T) Department
th
Memo dated 14 June, 2004, CCS Rules, 1965 and other regulation of DoPT, GOI, during
the material period, a D.P was pending and Shri Sudhangshu Sarkar was not clear from
vigilance angle. Moreover, such proceeding was also concluded with imposition of Minor
penalty and he was not fully exonerated.
AND
WHEREAS; Review Selection Committee has also viewed that since a Minor
penalty has been imposed upon Shri Sarkar, hence he has not fully exonerated from D.P.
Accordingly, DPC has not recommended him for promotion with retrospective effect.
AND
WHEREAS, the above recommendation of the Review Selection Committee has
been communicated to Shri Sudhangshu Sarkar, TCS Gr-I (Selection Grade) through DM &
rd
Collector, Khowai District on 3 July, 2023.
AND
WHEREAS; Shri Sudhangshu Sarkar being aggrieved has again filed a writ petition
bearing No.668 of 2023 before the Hon'ble High Court of Tripura. As per direction of the
Hon'ble High Court of Tripura dated 14-12-2023, a Review Selection Committee meeting
has further been held on 12-01-2024. Review Selection Committee has viewed that on the
basis of available ACR grading and the DPC procedure as adopted by the State Govt. vide
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Memo. No.F.11(1)-GA(P&T)/72 dated 10 June, 2004 found that Shri Sudhangshu Sarkar,
TCS Gr-II is "fit" for promotion to the post of TCS Gr-I (Selection Grade) on and from 12-
01-2024.
AND
WHEREAS; Shri Sudhangshu Sarkar, TCS Gr-II has been allowed promotion to
rd
TCS Gr-I on adhoc basis with prospective date of effect on 3 July, 2021, after expiry of his
currency period of punishment on 01.07.2018, following the extant adhoc promotion Policy,
2021 of the State Government along with others. But, the petitioner, Shri Sarkar was in no
way superseded by any of his junior from and within the period when he becomes entitled to
be considered for promotion.
Now, therefore, it has carefully been re-examined by the Competent Authority taking
all the relevant factors into consideration having relation to the scope of promotion of the
petitioner Shri Sudhangshu Sarkar, TCS Gr-II (now TCS Gr-I, on adhoc) to the post of TCS
Gr-I (Selection Grade) w.e.f. the date of cessation of minor penalty on 01.07.2018 but found
not tenable in view of above explanation. Consideration and resultant fresh decision of the
Government has been taken in terms of the order of the Hon'ble High Court vide W.P.(C)
No.668 of 2023 dated 25-01-2024.
By order of the Governor.
(Jai Datta) 15.02.24
Under Secretary to the
Government of Tripura."
6. A perusal of the impugned order dated 15.02.2024 in the
background facts indicate that petitioner was suffering from a minor penalty up
to 01.07.2018. It is also evident that promotions of State Government
employees were kept in abeyance w.e.f. 01.04.2017 due to status quo order
passed by the Hon'ble Supreme Court of India in connection with SLP(C)
Nos.19765-19767 of 2015 regarding Reservation Policy of the State
Government. Thereafter, the State Government framed an ad hoc Promotion
Policy on 22.06.2021 to allow ad hoc promotion with prospective effect as one-
time measure pending final outcome of the SLP. Consequent thereto,
petitioner's case was considered and promotion to TCS Grade-I (Selection
Grade) on ad hoc basis was granted with prospective effect vide notification
dated 03.07.2021. Aggrieved thereby, petitioner had approached this Court by
filing WP(C) No.829 of 2022. Upon directions passed by this Court on
07.02.2023, a Review Selection Committee meeting was held on 05.04.2023
which arrived at an opinion that since a minor penalty was imposed upon the
petitioner, he was not fully exonerated. Therefore, DPC had not recommended
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him for promotion. Being aggrieved by the Review Selection Committee
meeting decision conveyed to the petitioner on 03.07.2023, he preferred the
present writ petition. Thereafter, the Review Selection Committee meeting was
held on 12.01.2024 which viewed his case on the basis of available ACR's
Grading and DPC procedure as adopted by the State Government and found
that petitioner was fit for promotion to TCS Grade-I (Selection Grade) on and
from 12.01.2024.
7. Learned counsel for the petitioner has once again reiterated her
submission that promotion to TCS Grade-I (Senior Selection Grade) ought to
have been given from the due date since the minor penalty of withholding of
one increment without cumulative effect had expired by 01.07.2018. This
contention of the petitioner has been refuted by Mr. Mangal Debbarma, learned
Addl. Government Advocate appearing for the State. He has also referred to
the order dated 15.02.2024 which contains detailed reasons as to why
retrospective promotion could not be given to the petitioner i.e., both for the
reason that he was suffering from a penalty till 01.07.2018 and between
01.04.2017 to 22.06.2021 no juniors of the petitioner were promoted as the
State Government had withheld promotion of its employees w.e.f. 01.04.2017
due to the order of status quo passed by the Apex Court in the Special Leave
Petitions.
8. Learned counsel for the State submits that upon framing of the ad
hoc Promotion Policy as a one-time measure, promotion has been granted to
the petitioner to the post of TCS Grade-I (Selection Grade) from 03.07.2021
with prospective effect.
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9. Upon consideration of the pleadings and the materials placed on
record and upon hearing learned counsel for the parties, two things are evident;
one that from the period 01.04.2017 till the ad hoc Promotion Policy was
framed by the notification dated 22.06.2021 no junior to the petitioner had been
granted promotion in view of the status quo order passed in SLP(C)
Nos.19765-19767 of 2015 by the Supreme Court. The minor penalty of the
petitioner ceased w.e.f. 01.07.2018 but consideration for promotion of the
petitioner was not undertaken for 3(three) years till the ad hoc Promotion
Policy was framed on 22.06.2021. Under the ad hoc Promotion Policy, ad hoc
promotion could be given only for one instance. The petitioner was granted
promotion to TCS Grade-I (Selection Grade) on ad hoc basis by notification
dated 03.07.2021.
10. In these circumstances, this Court is of the considered view that as
on date in view of the ad hoc Promotion Policy applicable to the employees of
the State Government, no further ad hoc promotion to TCS Grade-I (Senior
Selection Grade) could be granted to the petitioner. The Special Leave
Petitions regarding the Reservation Policy of the State Government are still
pending. Since the matter is sub judice before the Apex Court, such claim of
the petitioner, for giving effect to his promotion to TCS Grade-I (Selection
Grade) w.e.f. 01.07.2018, could only be entertainable dependent upon the
decision rendered by the Apex Court in SLP(C) Nos.19765-19767 of 2015. As
such, the proceedings are closed.
Petitioner is at liberty to approach the respondent authorities with
the aforesaid prayer as per the decision rendered by the Apex Court in SLP(C)
Nos.19765-19767 of 2015.
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11. With the above observation and decision, the writ petition is
disposed of.
Pending application(s), if any, also stands disposed of.
(APARESH KUMAR SINGH), CJ
Pulak
Digitally signed by DIPESH DEB
DIPESH DEB
Date: 2024.09.30 12:16:31
+05'30'