MARINAL KANTI BHOWMIK Vs. ILALODHNEE

JUDGEMENT

(1.) This Writ Appeal is against the judgment dated 1.12.1999 passed by the learned Single Judge in Civil Rule No. 1 of 1991 by which the learned Single Judge partly allowed the prayer of the writ petitioner and certain directions were given to the respondents.

(2.) Mr S. Deb, the learned senior counsel appearing for the appellant has prayed for reconsidering certain observations and directions made by the learned Single Judge stating, inter alias, that those observations/ decisions were beyond the scope of the power of the judicial review of the High Court under Article 226 of the Constitution of India.

(3.) Bereft of the details, short facts necessary for decision of the present appeal may be noted and for convenience the nomenclature of the parties in this judgment are used as were given in the original writ petition. The writ petitioner joined in Central Health Services as Civil Assistant Surgeon, Grade-I on 19.3.65 and was posted at Tripura. She was re-designated as General Duty Officer, Grade-II with effect from 20.2.67. The Respondent No. 3 (appellant herein) also joined Central Health Services as 'Civil Assistant Surgeon, Grade-I on 4.2.66 and was re-designated as General Duty Officer, Grade- II with effect from 20.2.67. Tripura Health Services (hereinafter THS) was constituted by Tripura Health Services Rules, 1974 (hereinafter 1974 Rules) which came into force with effect from 18.5.74. Under 1974 Rules there are various Grades Viz. Grade-I to Grade-V. Under the provisions of 1974 [Rules existing members of the State Health Department were absored on the commencement of the 1974 Rules against such duty post as may be considered suitable according to their qualifications and experiences as decided by the Selection Committee. There is a provision under 1974 Rules which prescribes that any member having lien to any other services under the Government of India or any other State Government shall not be so absorbed, unless he exercises option to come over to the THS and the option once exercised shall be final. As recommended by the Selection Committee the petitioner and the Respondent No. 3 were absorbed in Grade-IV of the THS by an order dated 29.5.76 issued by the Government of Tripura and as per seniority list in respect of THS the petitioner was found semior to Respondent No. 3. On 25.1.82 both the petitioner and respondent No. 3 were promoted to Grade-III of the THS on ad- hoc basis and subsequently their appointment was regularised with effect from 16.6.92 vide notification dated 11.4.83. The respondent Nos. 4 and 5 are direct recruit to Grade-III of the THS and they were appointed with effect from 1.1.80 and as per seniority list of Grade- in of THS as on 31.11.86 circulated under Memo dated 23.12.86 of the Government of Tripura, the respondent Nos. 4 and 5 are shown in 5th and 6th position and the petitioner and respondent No. 3 are shown in 12th and 13th position respectively. In the meantime it so happened that by a judgment and decree dated 25.11.87 passed in T.S. 49/ 79 (re-numbered as T.S. 100/86) by the Sub- Judge, West Tripura, Agartala, the respondent No. 3 was declared to be entitled to be absorbed in Grade-III of the THS with effect from 18.5.74 and some ancillary reliefs were also prayed. The respondent Nos. 4 and 5 filed an appeal being T.A. 1/88 and T.A.5/88 against the aforesaid decision of the trial court which were dismissed by the judgment and decree dated 30.6.88 by the District Judge. Subsequently, the Respondent Nos. 4 and 5 filed an appeal against the aforesaid judgment being S.A. 166/88 before this Court. During the pendency of the aforesaid appeal, the present writ petitioner apprehending that the respondent No. 3 might be given seniority over her, made several representations not to give effect to the judgment and decree passed by the Civil Courts. Still by a notification dated 13.9.90 the respondent No. 3 was promoted to the Grade-II of THS on ad-hoc basis and by another notification dated 30.9.90 the respondent No. 4 was also promoted to Grade-II of the THS on ad-hoc basis. Thereafter, the respondent No. 5 was also promoted to Grade-II of the THS by another notification dated 21.11.90 on ad-hoc basis. Being aggrieved, the petitioner filed the aforesaid writ petition No. 1/99 praying, inter alia, for declaring the petitioner to be entitled to be absorbed in Grade-III of the THS with effect from 18.5.74 ahead of respondent No. 3 and for quashing the aforesaid orders of appointment of the responentNos. 3,4 and 5 to Grade-II of the THS. During the pendency of the writ petition a seniority list of Grade-in of THS as on 1.4.94 was published in which the respondent No. 3 was shown senior to the petitioner. Thereafter, on the basis of the recommendation of the Selection Committee held on 26.9.95, the respondent Nos. 3 and 4 were promoted to the Grade-II of the THS with effect from 14.9.90 by a notification dated 27.11.95. By an amendment the petitioner challenged the subsequent seniority list in which the respondent No. 3 was shown senior to the petitioner and also the proceedings of the Selection Committee meeting held on 26.9.95 and also the promotion of respondent Nos. 3 and 4 to Grade-II of THS with effect from 14.9.90 on regular basis. Again, the petitioner was also prayed for quashing the notification dated 21.1.97 by which the respondent No. 3 has been promoted to Grade-I of THS on ad-hoc basis.