ILA LODHNEE CHOUDHURY Vs. STATE OF TRIPURA

JUDGEMENT

(1.) In this writ petition under Article 226 of the Constitution, the petitioner has challenged the promotions of the respondent Nos. 3,4 and 5 to Grade-II of the Tripura Health Service.

(2.) The relevant facts briefly are that the petitioner joined the Central Health Services as Civil Assistant Surgeon, Grade-I, on 19.3.65 and was posted in Tripura. Subsequently, she was re-designated as General Duty Officer, Grade-II, with effect from 20.2.67. The respondent No. 3 joined the Central Health Services as Civil Assistant Surgeon Grade-I on 4.2.66 and was redesignated as General Duty Officer, Grade-II, with effect from 20.2.67. When the Union Territory of Tripura became a State, the Tripura Health Services was constituted and the Tripura Health Services Rules, 1974, (for short "1974 Rules) came into force with effect from 18.5.74. Rule 9(1) of 1974 Rules provided for initial constitution of service. Under the said rule 9, the existing members of the Central Health Services who were deputed to Tripura and also existing members of the Tripura Health Department were to be absorbed on the commencement of the rules against such duty posts as may be considered suitable according to their qualification and experience as may be decided by the selection committee. Proviso to rule 9(1), however, stated that any member having lien to any other service under the Government of India or any other State Government shall not be so absorbed unless he or she exercised an option to come to the Tripura Health Service and the option once exercised shall be final. The selection committee recommended the absorption of the petitioner and the respondent No. 3 in Grade-IV of the Tripura Health Service and on the basis of the said recommendation the petitioner and the respondent No. 3 were absorbed in Grade- IV of the Tripura Health Service by notification dated 29.5.76 issued by the Government of Tripura, Health and Family Planning Department. Thereafter, seniority lists of officers of Grade-IV of the Tripura Health Service as on 31.3.88 and 1.10.80 were circulated in which the petitioner was shown senior to the respondent No. 3 in Grade-IV of the Tripura Health Service. Again another seniority list was circulated under letter dated 13.1.82 by the Director of Health Services, Government of Tripura, Agartala, wherein the petitioner was shown in the 7th position in the list whereas the respondent No. 3 was shown in the 8th position. On 25.1.82, the Government of Tripura, Health and Family Welfare Department, issued a notification appointing "both the petitioner and the respondent No. 3 to Grade-Ill of the Tripura Health Service on purely ad hoc basis. The said appointment of the respondent No. 3 and the petitioner to Grade-III of the Tripura Health Service: was regularised with effect from 16.6.92 by notification dated 11.4.83 of the Tripura Public Service Commission and on the recommendation of the selection committee. Prior to the appointment of the petitioner and respondent No. 3 to Cradle-III of the Tripura Health Service, the respondent Nos. 4 and 5 had been appointed to Grade- III of the Tripura Health Service with effect from 1.1.80 as direct recruits. Accordingly, a seniority list of officers in Grade-in of the Tripura Health Service as on 31.11.86 was circulated by memorandum dated 23.12.86 of the Government of Tripura, Health and Family Welfare Department, wherein the respondent Nos. 4 and 5 were shown in 5th and 6th position and the petitioner and respondent No. 3 were shown in the 12th and 13th position respectively. In the meanwhile, the respondent No. 3 filed a suit for declaration that he was entitled to be absorbed in Grade-in of the Tripura Health Service in its initial constitution with effect from 18.5.74 and for recovery of pay and allowances on the basis of such absorption in Grade-III of the Tripura Health Service with its initial constitution with effect from 18.5.74 and the said suit TS No. 49/79 re-numbered as TS No. 100/86 was decneeed by the learned subordinate Judge, West Tripura, Agartala, by judgment and decree dated 25.11.87. Against the said suit, the State of Tripura as well as the respondent Nos. 4 and 5 filed TA No. 1/88 and TA No. 5/88 before the learned District Judge, West Tripura, Agartala. But by judgment dated 30.6.88, the said appeals were dismissed. The sID judgment and decree have been challenged before this Court by the respondent Nos. 4 and 5 in Second Appeal No. 166/88 .renumbered as Second Appeal No. 4/90 which has been heard along with this writ petition. Apprehending that the respondent No. 3 would be treated as Grade-III Officer of the Tripura Health Service with effect from 18.5..74 and would be given seniority over the petitioner, the petitioner filed a representation dated 9.11.88 before the Secretary to the Government of Tripura, Health and Family Welfare Department, requesting him to maintain her seniority over the respondent No.

(3.) She also served a notice dated 25.5.90 to the Principal Secretary to the Government of Tripura, Health and Family Welfare Department, through her advocate requesting him not to pass any order in favour of the respondent No. 3 on the basis of the said judgments and decrees of the learned Subordinate Judge and the learned District Judge. Notwithstanding the said notice, the Government of Tripura, Health and Family Welfare Department issued a notification dated 13.9.90 promoting the respondent No. 3 to Grade-II of the Tripura Health Service on ad hoc basis. But the petitioner was not promoted to Grade-II of the Tripura Health Service. In the said notification dated 13.9.90, it was, however, stated that the promotion of the respondent No. 3 was subject to final outcome of the case going on before this Court. By another notification dated 30.9.90, the respondent No. 4 was promoted to Grade-n of the Tripura Health Service on ad hoc basis. Subsequently, by notification dated 21.11.90, the respondent No." 5 was promoted on ad hoc basis to Grade-II of Tripura Health Service. During the pendency of the writ petition, a seniority list of officers in Grade-in of the Tripura Health Service as on 1.4.94 was circulated in which the respondent No. 3 was shown senior to the petitioner and the respondent No. 4 and a meeting of the selection committee for regular promotion to the post of Grade-II of the Tripura Health Service was held on 26.9.95 and on the basis of the recommendation of the selection committee, the respondent No. 3 and the respondent No. 5 were promoted to Grade-II of the Tripura Health Service with effect from 14.9.90 by notification dated 27.11.95. The petitioner therefore, filed GM ApplicationNo. 425/99 praying for amendment of the writ petition and in the said amendment the petitioner has prayed for quashing the seniority list dated 9.12.94, the proceeding of the selection committee meeting held on 26.9.95 and the memorandum dated 28.11.95 promoting the respondent Nos. 3 and 4 to Grade-II of the Tripura Health Service with effect from 14.9.90. The petitioner also prayed for quashing the notification dated 21.1.97 by which the respondent No.3 has been appointed to Grade-I of the Tripura Health Service on ad hoc basis. The said amendments to the writ petition were allowed by order dated 9.9.99 of this Court.