(1.) "Esa Sarvesu Bhutesu, Gudho Atma No Prakasate....." (KATHA UPANISAD 3.12) (The Atma is present in every being, but being hidden, does not manifest itself.) The above aspect of the matter comes into surface while dealing with the subject matter of these two appeals, which are taken up together as both the appeals arise out of the same original common judgment. The Courts below not only missed the innermost soul of man, but it also knowingly or unknowingly banished the soul of the Constitution and Constitutionalism in adjudicating the suit involving right to equality as ingrained in the Constitution in the form of Articles 14 and 16, in the following circumstances.
(2.) The respondent herein, viz. Shri Dulal Chakraborty, as plaintiff instituted a title suit claiming his right to promotion in aid of the equality clause enshrined in the Constitution on the face of the reservation policy as laid down by the State/respondents. In the suit, the plaintiff claimed for a declaration that he was senior in service to the defendants Nos. 6 and 7 (viz. Ranjit Kr. Das and Shiraj Deb Barma, respectively) and that he was entitled to be promoted to the post of Assistant: Controller of Weights & Measures, Govt. of Tripura, prior to that of respondents Nos. 6 and 7 with retrospective effect, and for a declaration that the notifications under memo No. F. 2 (199)/WM/81/707-8 dated 27th June, 1988 issued by the Controller of Weights and Measures, Govt. of Tripura and Memo No. F.4-38(Vol-III)(26)/TW/78(loose)/244406-606 dated 14.12.1987 issued by the Tribal Welfare Department, Govt. of Tripura, as illegal, ultra vires, void and not binding upon the plaintiff and further that the defendants Nos. 1 to 5 were legally and factually bound to grant such promotion with all benefits and credentials appurtenant to the said promotion post. The plaintiff also claimed for a mandatory injunction against defendants Nos. 1 to 5 restraining them from giving and granting to the defendants Nos. 6 and 7 any such promotion earlier to that of the plaintiff. In the plaint it was inter alia pleaded that he joined as Inspector of Weighs & Measures under the State of Tripura on 18.12.64 and meritoriously served under the defendants. The defendants Nos. 6 and 7, as named hereinabove, are employees under the same authority and department, both of them also being Inspector of Weighs & Measures. Defendants Nos. 6 and 7 were appointed to the posts on 1.12.82 and 24.11.82, respectively. In the seniority list of the Inspectors of Weighs & Measures, the plaintiff was shown at serial No.2 whereas the defendants were shown at serial numbers 11 and 12, respectively. It was also averred that the person senior to him, viz. Nalini Ranjan Bhattacharjee who comes above him the seniority list, was promoted to the post of Asstt. Controller of Weighs & Measures with effect from 1.4.82 The post of Asstt. Controller of Weights & Measures fell vacant in the year 1978 due to promotion of the incumbent to higher post. Similarly, another post of Asstt. Controller of Weights & Measures also fell vacant in 1985. In paragraph 7 of the plaint, the plaintiff stated that the post which fell vacant in 1978 was kept reserved for ST candidate while the post which fell vacant in 1985 was also kept reserved for ST/SC candidate or candidates, further the plaintiff stated that he submitted a number of representations for being promoted to the post of Asstt. Controller of Weights & Measures on the strength of his seniority and his last representation dated 20.5.88 submitted to the Secretary, Revenue, Agartala, was turned down by the authority on 27th June, 1988. It was averred in the plaint that there was a practice in the department to keep certain posts reserved for three years for promotion of ST and SC candidates on the basis of the policy to reserve 29% for ST and 15% for SC, to the general candidates (employees) for promotion as also a practice of "carry forward" of the reserved posts should there be no suitable candidates from the ST or SC communities for promotion and finally to release such posts or rather dereserve the posts beyond the period of three years. The plaintiff averred that one of such posts ought to have gone to one unreserved candidate and accordingly, he ought to have been appointed to one of those two posts which fell vacant in 1978 and 1985. In support of his contentions, the petitioner in his plaint referred to the decision of the Supreme Court in Akhil Bharatiya Soshit Karmachari Sangh (Railway) -Vs- Union of India & Ors., reported in AIR 1981 SC 298. The plaintiff also pleaded that the defendants were taking steps to promote defendants Nos. 6 and 7 to the two vacant posts of Asstt. Controller of Weights & Measures in an illegal and arbitrary fashion.
(3.) Defendants Nos. 1,2 & 5 as well as defendants Nos. 6 and 7, submitted two separate written statements and contested the case. Defendants Nos. 1,2 & 5 in their W.S. stated that the plaintiff was informed by the Controller of Weights & Measures, Tripura, vide his communication dated 27.6.88, that while filling up any vacant post under the Government of Tripura, a 100 point roster as fixed by the Government were required to be followed and according to that roster, two posts (point 1 and 2) of Asstt. Controller of Weights & Measures, were filled up by general candidates and as a consequence another two posts (points No. 3 and 4) of Asstt. Controller of Weights & Measures, were required to be filled up by two reserved candidates (ST-1, SC-1) and as such, there was no scope to promote the plaintiff to any of the posts of Asstt. Controller of Weights & Measures, sat that stage. It was further stated that the Tribal Welfare Department's memo No. F.4-38 (Vol- III)(26)/78(Loose)24407-606 dated 14.12.87, was relatable to the withdrawal of their earlier memo dated 28.5.86. The defendants did not dispute the seniority of the plaintiff over defendants Nos. 6 and 7. The aforementioned defendants Nos. 1,2 and 5 also averred that Shri Nalini Ranjan Bhattacharjee who was holding a permanent post of Inspector of Weights & Measures, who was senior to the plaintiff was promoted to one post of Asstt. Controller of Weights & Measures with effect from 1st April, 1982 on the temporary basis. It was further averred that one post of Asstt. Controller of Weights & Measures was filled up in the year 1978 on ad hoc basis which was subsequently regularised in May, 1981. Later one more post of Asstt. Controller of Weights & Measures fell vacant in the year 1981 due to the promotion of one Asstt. Controller of Weights & Measures on ad hoc basis which was regularised later on. Out of the two posts of Asstt. Controller of Weights & Measures, one was filled up in April 1982 by promotion of Shri Nalini Bhattacharjee, Inspector who was senior to the plaintiff, keeping one post reserved for ST candidate as per the reservation quota. Therefore, was no scope to promote the plaintiff at that time. Another post of Asstt. Controller of Weights & Measures fell vacant in the year 1986 due to promotion of one Asstt. Controller on ad hoc basis which was regularised subsequently. The aforementioned two posts of Asstt. Controller were meant for ST and SC candidates, one each, as per the reservation policy/principle. The respondents averred that the 100 point roster for filling up of the vacant posts by the ST/SC candidates was being maintained in cases of all promotions since 19.2.77 and posts are kept vacant according to the roster points. It was stated that since one vacant post of Asstt. Controller was filled up with effect from 1.4.84, one post of Asstt. Controller had to be kept vacant as two such posts were filled up earlier in the year 1978 and 1982 by candidates from general category. According to the 100 point roster, at least one post of Asstt. Controller was to be filled up by a candidate from reserved category. But while filling up those posts, it was stated that the next vacant post would be filled up by a reserved category candidate and as such, it was felt necessary to fulfil the commitment by keeping one post of Asstt. Controller vacant for the reserved candidate. Subsequently, there was an instruction under the Tribal Welfare Department's memo No. 14069-219/F.4-38/(Vol.III)(26)/78 dated 28.5.86 to the effect that the reservation should not exceed 50% of the total vacancies available on a particular occasion. Thereafter one post of Asstt. Controller of Weights & Measures, fell vacant when the incumbent of the post was promoted to a higher post in the year 1986 on ad hoc basis which was regularised subsequently. Therefore, two posts of Asstt. Controller of Weights & Measures were available and according to the Tribal Welfare Department's memo dated 28.5.86, one such post was to be filled up by a general candidate and the case of the plaintiff was taken up for consideration to be promoted to that post in the year 1987. The said proposal was processed and after observing all the formalities, the matter was being considered by the appointing authority for finalisation. But due to the aforesaid welfare department's memo dated 14.12.87 withdrawing their decision communicated vide their memo dated 28.5.86, the proposal for promotion of the plaintiff could not materialise. The State/ defendants averred that the case of the promotion of Shri Ranjit Kumar Das and Shri Dhiraj Deb Barma, an SC and the other an ST candidate, respectively, to the two vacant posts of Asstt. Controller meant for ST/SC candidates under reserved quota, were under consideration of the appointing authority.