SAMARENDRA MUKHARJEE Vs. BIKASH DEB BARMA

JUDGEMENT

(1.) In this writ appeal we are concerned with reservation in favour of Scheduled Tribes in matters of promotion in the Tripura Judicial Service.

(2.) Sri Bikash Dev Banna, respondent No. 1 herein filed a writ petition under Article 226 of the Constitution numbered Civil Rule No. 149/ 88. In the said writ petition, the case of the respondent No.1/writ petitioner was that he applied as a Scheduled Tribe candidate for appointment to a post in Grade-III of the Tripura Judicial Service pursuant to a notification issued by the Tripura Public Service Commission (hereinafter referred to as "the TPSC") and on the recommendation of the TPSC was appointed to the Tripura Judicial Service Grade- Ill in the year 1982 and he joined pursuant to the said appointment. Rule 10 of the Tripura Judicial Service Rules, 1974 (for short, "the 1974 Rules") provided that appointment to the service made by direct recruitment would be subject to the orders regarding special representation in the services for the Scheduled Castes and the Scheduled Tribes issued by the Government of India from time to time. Rule 20 of the 1974 Rules stipulated that in regard to matters not specially covered by the rules or by regulations or orders issued thereunder or by special orders, the members of the service shall be governed by the rules, regulations and orders applicable to corresponding officers serving in connection with the affairs of the State Government. By a Memorandum dated 19.2.77 issued by the Government of Tripura, Appointment & Services Department, it was announced that the Government had decided that the percentage of reservation against promotion quota for Scheduled Tribes and Scheduled Caste candidates should be equivalent to the percentage of reservation in the matter of direct recruitment with immediate effect in respect of all categories of posts under the Government. Thus, the case of the writ petitioner was that the, aforesaid Memorandum dated 19.2.77 of the Government of Tripura, Appointment & Services Department provided for reservation in case of Scheduled Tribes at 29% of the vacancies in matters of promotion in respect of all categories of posts under the Government in the same way as in matters of direct recruitment in respect of said posts under the Government and that by virtue of Rule 10 of the 1974 Rules, the said Memorandum dated 19.2.77 was applicable to the Tripura Judicial Service and the writ petitioner was entitled to be promoted to the quota of 29% of the vacancies reserved for the Scheduled Tribes in the Tripura Judicial Service Grade-II with effect from the date he completed his probation as an officer of the Tripura Judicial Service Grade- Ill. But the writ petitioner was not promoted and instead the Gauhati High Court promoted various other officers of Tripura Judicial Service Grade-ill to Tripura Judicial Service Grade-II. In the circumstances, the writ petitioner made representations from time to time to the Gauhati High Court and the Registrar, Gauhati High Court received the said representations but did not pass any order of promotion in favour of the writ petitioner. Aggrieved, the writ petitioner filed the aforesaid Civil Rule No. 194/88 for directions on the Gauhati High Court and the State of Tripura to promote the writ petitioner to Grade-II of the Tripura Judicial Service with effect from 22.3.84, that is, the date when he completed probationary period as an officer of Grade-III of the Tripura Judicial Service and to appoint him to Grade-I of the Tripura Judicial Service in accordance with the reservation policy.

(3.) No counter-affidavit was filed in the said Civil Rule by the Registrar on behalf of the Gauhati High Court, but a counter-affidavit was filed onlbehalf of the State of Tripura on 7.12.91 contending, inter alia, that while framing the 1974 Rules, the authority concerned kept in consideration the constitutional provisions for reservation subject to the maintenance of efficiency of administration as enshrined in Article:335 of the Constitution and decided to make provisions for reservation to the posts for Scheduled Tribes and Scheduled Castes only at the initial stage of direct recruitment in service and decided not to extend the reservation provision in case of promotion. In the said counten-affidavit filed on behalf of the State of Tripura on 7.12.91, it was also contended that merit-cum-seniority was the criterion prescribed by rule 7(1) of the 1974 rules for promotion to higher igrade of the service and hence the writ petitioner could not be automatically promoted superseding his seniors as soon as he completed the probationary period. In paragraph-12 of the said counter-affidavit filed on behalf of the State of Tripura, it was further stated that having been misadvised the writ petitioner had filed the meritless petition and that neither the Gauhati High Court nor the State of Tripura failed to discharge their obligation by not promoting the writ petitioner to higher grade. On 22.8.94, however, the State of Tripura filed an application for amendment of the said counter- affidayit filed on 7.12.91 and took a new stand thereirn. In the said application dated 22.8.94, the State of Tripura contended that although in the 1974 Rules, provision was initially made for reservation for Scheduled Tribes and Scheduled Castes at the time of direct recruitiment, the State Government by Executive Instructions under notification dated 19.2.77 communicated to all concerned the decision of the Government that the percentage of reservation against promotion quota for Scheduled Tribes and Scheduled Castes communities would be equivalent to the percentage of reservation in the matter of direct recruitment in respect of all categories of posts under the Government and that in the said Instructions no exception was made with regard to filling up of promotional posts in the Tripura Judicial Service. It was further contended in the said application for amendment dated 22.8.94 that the said Executive Instructions read with Rule 20 of the 1974 Rules made it clear that reservation at the prescribed percentage was to be maintained even in matters of promotion in the Tripura Judicial Service. A further case was made out in the saidiapplication for amendment dated 22.8.94 of the State of Tripura that after enactment of the Tripura Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1991, (for short, "the 1991 Act"), the contention of the writ petitioner to the effect that reservation for Scheduled Castes and Scheduled Tribes existed in respect of promotional vacancies in the Tripura Judicial Service could no longer be opposed. By the said application for amendment dated 22.8.94 therefore the State of Tripura supported the case of the writ petitioner.