GOPESH DAS Vs. STATE OF TRIPURA
LAWS(TRIP)-2019-12-21
HIGH COURT TRIPURA
Decided on December 17,2019

Gopesh Das Appellant
VERSUS
STATE OF TRIPURA Respondents

JUDGEMENT

AKIL KURESHI,CJ. - (1.)Petitioners have challenged an order dated 7th of December, 2018 by which they have been reverted from the post of Naib Subedar to the lower post of Havildar.
(2.)Brief facts are as under:
Petitioners joined the service of Tripura State Rifles ( "TSR ", for short) in the year 1985 as Rifleman (GD). In due course of time they were granted their due promotions. On 06.12.1999, both the petitioners were promoted to the post of Havildar (GD). As per the Departmental Rules, after completion of 5 years of satisfactory service on the post of Havildar the petitioners, subject to fulfillment of certain conditions, would be eligible for promotion to the post of NaibSubedar.

The Department prepared the list of eligible Havildars who could be considered for promotion to the post of NaibSubedar and forwarded the same under communication dated 15th December, 2004 to the Commandant for further action. Names of both the petitioners were included in the said list. Pursuant to such eligibility the petitioners were also sent for attending list "D " Cadre Course which I am informed was of a duration of 45 days. Both the petitioners attended such course and completed it successfully.

On 7th of May, 2005, Government of Tripura issued promotion orders of several Havildars placing them in the post of NaibSubedar. The petitioners were included in the said list at serial Nos. 1 and 3.

One Kishore Kumar Basak, who was also a Havildar in Tripura State Rifles, filed W.P. (C) No.254 of 2009 contending that he was incorrectly excluded for promotion in the said order dated 7th of May, 2005. This petition was resisted by the Government on the ground that on the crucial date for consideration, he had crossed the upper age limit of 40 years. The said petitioner thereupon cited certain instances where according to him State of Tripura had not implemented the said condition of upper age limit of 40 years consistently. The present petitioners were respondents No. 8 and 10 in the said petition. The case of petitioner Kishore Kumar Basak was that these persons were promoted under the same order to the post of NaibSubedar though they had also crossed the age of 40 years.

(3.)The learned Single Judge disposed of the petition of said Sri Kishore Kumar Basak by Judgment dated 18.04.2017 holding that the said petitioner had crossed the age of 40 years on the cutoff date. His case was, therefore, correctly not considered by the State of Tripura for promotion to the post of NaibSubedar. Following observations were made:
"13. The respondents No.1, 2 and 4 have admitted that the respondent No.5 was promoted to the post of NaibSubedar (GD) after he crossed the 40(forty) years. The cutoff date was on 01.07.2004 as the final test for the list D was conducted on 25.08.2004. In this writ petition, the appointment of the respondent No.5 or other private respondents are not under challenge. As it appears, they are impleaded for illustrating that the petitioner was discriminated. The fundamental question that falls for consideration of this court is that whether the petitioner was within 40(forty) years on 01.07.2005 when his final test for the list D was conducted, inasmuch as his final test for the list D was conducted on 11 12th April, 2005. Therefore, the relevant cutoff date for him was 01.07.2005. On 01.07.2005, the petitioner was aged about 40 years 8 months and 15 days. Thus, the petitioner could not be within the zone of consideration in view of Rule 5(1)(d) of the TSR (Discipline, Control, Service Conditions, etc.) Rules, 1986. Hence, the petitioner cannot maintain this writ petition as he was lacking in the eligibility criteria. If someone is promoted by mistake or overlooking the age that cannot create the foundation for seeking relief under Article 14 and 16 of the Constitution of India. But the staterespondents shall take the correction course. "

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