Satyesh Ch. Deb v. C.L.Das, 1fs

IN
THE
HIGH
COURT
OF
TRIPURA
A
G
A
R
T
A
L
A
CONT.CAS(C)
28
of
2014
Shri
Satyesh
Ch.
Deb,

 



    

     

      

 



  

 !"#  .......
Petitioner
-
V
e
r
s
u
s
-
Shri
C.L.
Das,
IFS,



  $   % &!"#  

 &&    # '"

()# * +   ' " '"

(

  

 !"#  .......
Respondent
B
E
F
O
R
E
THE
HON'BLE
MR.
JUSTICE
S.
TALAPATRA

"  :
,#       
"  :
,' - +$  %   & 

:
./00.1

 & $& :17.01.2015
2# 3 

&&"

:

YES NO

√
JUDGMENT
&

ORDER

  &"    '04/& 0..0  "    +  &  & 

 #"  "

#    0 &  ' " & '#  & &#

[2] +   ./00.5" +$ '#     .1 & 0..6 7     "#      & !"#    "  &      " +

.1&0..6 *#      400.5     ' 04/ & 0..0     $ #     *#    8#  "  +  

 #

  Ajit
Singh
&
Others
(II)
vs.
State
of
Punjab
and
Others " 
(1999)
7
SCC
209

 *#  + + +$' # 96

   0../ & :.4//6 "##         &   
05 5;%

 3! 0..1   0:.0..6   +  # +$  %    



  3 ! 

 "   %  & !"#  <$ *#   ./00.5  "

 +

 = [17]
What
further
Mr.
S.
Deb,
learned
sr.
counsel
has
raised
that
the
said
notification
cannot
be
treated
as
the
validating
act
of
the
previous
action
granting
the
consequential
seniority
to
the
reserved
category
promotees
visBàBvis
general/unreserved
category
promotees
in
the
promotion
level.
Such
action
was
struck
down
by
this
Court
in
terms
of


 


Whether
the
said
notification
cannot
be
treated
as
a
piece
of
validating
act
requires
further
consideration.
For
appreciating
such
jurisprudential
objection,
this
Court
has
to
travel
back
to
the
amended
provision
of
Article
16(4A)
of
Constitution
of
India
as
engineered
by
the
Constitution
(Eighty
Fifth
Amendment)
Act,
2001.
By
amended
provision,
the
State
has
been
enabled
with
the
power
for
making
any
provision
for
reservation
in
the
matters
of
promotion
with
consequential
seniority
to
any
class
or
classes
of
post
in
service
under
the
State
in
favour
of
the
Scheduled
Castes
and
Scheduled
Tribes
which
in
the
opinion
of
the
State
are
not
adequately
represented
in
the
services
for
the
State.
This





[3] provision
itself
stands
contrary
to
what
had
been
held
by
  

.
Therefore,
the
ratio
of
  

has
been
expressly
debased
by
said
piece
of
validating
act,
which
has
amended
Article
16(4A)
with
effect
from
17.06.1995.
From
a
reading
of
the
statement
of
the
object
and
reason
of
Constitution
(Eighty
Fifth
Amendment)
Act,
2001
it
becomes
further
clear
that
the
very
purpose
of
the
said
Act
was
to
remove
the
effects
of
  

and
to
provide
the
consequential
seniority
in
the
matters
of
promotion
to
the
reserved
category
candidates/incumbents
visBàBvis
the
general
category
candidates/incumbents
on
the
basis
of
the
continued
officiation.
Thus,
there
cannot
be
any
amount
of
doubt
that


 

has
been
debased
by
the
said
Constitution
(Eighty
Fifth
Amendment)
Act,
2001
with
effect
from
17.06.1995,
the
day
on
which
Article
16(4A)
had
been
made
operational
in
Constitution
(77th
Amendment)
Act.
In
exercise
of
the
said
enabling
power
State
has
made
provision
by
an
executive
fiat
in
the
form
of
the
notification
No.F.23(3)BGA(P
&T)2004
dated
27.01.2005.
The
executive
order
as
passed
under
Article
162
of
the
Constitution
of
India
since
has
been
extended
to
a
matter
where
the
legislature
of
a
State
has
power
to
make
laws
it
cannot
be
said
notification
has
no
invalidating
statutory
effect.

The
provision
can
be
made
in
exercise
of
power
provided
to
the
State
under
Article
162
of
the
Constitution
of
India,
subject
to
that
in
any
matter
with
respect
to
which
the
legislature
of
the
State
and
Parliament
have
power
to
make
laws,
the
executive
power
of
the
State
shall
be
subject
to
and
limited
by
the
executive
power
expressly
conferred
by
the
Constitution
or
by
any
law
by
the
parliament
upon
the
union
or
authorities
thereof.
In
this
case
the
State
in
exercise
of
the
enabling
power
has
provided
under
Article
16(4A)
of
Constitution
of
India
provision
of
the
consequential
seniority
to
the
reserved
category
promotees
in
terms
of
their
continuous
officiation.
Therefore,
it
has
got
all
contours
and
trappings
of
the
validity
Act.

Thus,
the
contention
of
Mr.
Deb
in
this
regard
is
discarded.
[18]
A
ancillary
question
that
comes
to
the
fore
that
what
remedy
would
be
available
to
the
State
after
such
validating
act.
That
issue
should
not
be
compounded
by
any
complex
interpretation.
Executability
of
the
judgment
has
been
slighted
and
the
declaration
as
to
the
law
has
been
entirely
debased
retaining
any
effect,
from
the
date
on
which
the
validating
action
has
come
into
effect.





[4] caused
by
the
court.
On
cumulative
assessment
of
the
contentions
as
projected,
this
court
has
no
hesitation
to
hold
that
this
petition
for
the
review
is
not
maintainable
as
in
as
much
as
for
the
legislative
action,
even
with
retrospective
operation
but
posterior
to
impugned
judgment
the
same
cannot
be
altered
or
modified
in
exercise
of
the
power
of
review
by
this
Court.
[2] 7&#8#+  +$*# 

 400..1   '04/&0..0 &



  + " = "For
the
foregoing
reasons,
this
writ
petition
is
allowed.
The
impugned
memorandum
dated
20.08.2004
(AnneuxreB8)
placing
the
privateB respondents
senior
to
the
petitioner
is
hereby
quashed.
Resultantly,
the
respondents
are
directed
to
prepare
a
fresh
inter
se
seniority
list
placing
the
petitioner
senior
to
the
privateB respondents.
Since
the
petitioner
is
reported
to
be
retiring
on
superannuation
on
31.12.2004,
the
entire
exercise
of
preparing
the
seniority
list
shall
be
completed
before
31.12.2004.
No
costs."


[3] !   & !"#     "  +$ &

 ""

   +

 ', ""

 55 & 0..6 ""  '#&( 

>"

$   400..1? !   ""

   " & +$     0..0..6   ( 

   & "

$

     0     & ..0..6   +

 = @This
is
an
application
filed
by
the
state
respondents
for
extending
time
to
comply
with
the
order
dated
16.12.2004
passed
by
this
Court.
Time
for
compliance
with
the
order
given
by
this
Court
was
up
to
31.12.2004.
Since
then
almost
a
month
has
passed
without
compliance
with
the
order.
I
have
carefully
gone
through
he
application.
It
must
be
stated
here
that
if
the
order
could
not
be
complied
with
by
the
state
applicants
by
31.12.2004,





[5] they
should
have
at
least
applied
for
extension
of
the
time
before
expiry
of
the
period
for
compliance.
It
is
to
be
noted
that
the
petitioner
had
already
retired
before
compliance
with
the
order,
and,
as
such,
he
was
not
able
to
get
the
fruit
of
his
litigation
before
his
retirement.
This
is
very
unfortunate.
The
state
applicants
should
have
been
more
sensitive
to
a
matter
of
this
nature.
However,
considering
the
fact
that
the
state
applicants
have
decided
not
to
prefer
an
appeal
and
also
of
the
fact
that
between
31.12.2004
and
now,
some
steps
must
have
been
taken
by
the
state
applicants,
it
would
be
proper
to
grant
a
further
period
of
two
months
time
with
effect
from
1.1.2005
to
the
state
applicants
for
compliance
with
the
order.
Order
accordingly." !#    & !"#    &&   "

    "    #  & (   &   #  +    "

$         + $+$09.00..6 [4] ! "#   # $  

 "#+    "

 &        09.00..6"  &  " +

 '04/&0..0  "" '#&

#" &   " "

   " &     "+ +$   0. &  ' " & '#  /:

" # = "20.
  

 

!
:
No
court
shall
initiate
any
proceedings
for
contempt,
either
on
its
own
motion
or
otherwise,
after
the
expiry
of
a
period
of
one
year
from
the
date
on
which
the
contempt
is
alleged
to
have
been
committed."

!"   

 " &  $ "$   "   ..50..6 7      ("

   +$ 





[6] "  ""       ;6 &  "      # = "5.
Because
of
the
pendency
of
the
review
application,
your
humble
petitioner
herein
could
not
take
action
against
the
deliberate
and
wilful
nonBcompliance
of
the
order
passed
on
16.12.2004
in
W.P.(C)
No.269
of
2002
(AnnexureB
P1
supra).
After
the
review
petition
was
dismissed
on
09.12.2013,
your
humble
petitioner
made
an
application
on
21.02.2004
to
the
Principal
Secretary
to
the
Government
of
Tripura
in
the
Department
of
Forests
and
the
Principal
Chief
Conservator
of
Forests,
Gorkhabasti,
Agartala
drawing
their
attention
about
the
dismissal
of
the
review
petition."

[5]
7 ""     "    ""   '#    &  &  "  #      0/.60.1 # +$     $   %  & !"#  " "    # = No.F.4(1892)/For/EsttB14/7591
Government
of
Tripura
Forest
Department
Dated,
Agartala,
the
29th
May,
2014
To
Sri
Satyesh
Ch.
Deb
Retd.
Senior
Forest
Ranger,
Ramnagar
Road
No.1,

P.O.
Ramnagar,
Agartala,

West
Tripura.
Sub
:
Representation
dated
nil
of
Sri
Satyesh
Ch.
Deb,
Retd.
S.F.R.
Sir,
I
am
directed
to
inform
you
that
your
representation
dated
nil
has
been
carefully
examined
by
this
Department.
Although,
it
would
appear
from
judgment
dated
09.12.2013
of
the
Hon'ble
High
Court
of
Tripura
that
the
judgment
passed
by
the
Ld.

Single
Bench
in
the
writ
petition
on
16.12.2004
has
been
upheld,
in
fact,
the
basis
of
the
said
judgment
and
order
has
been
completely
debased
in
view
of
the
constitutional
85th

amendment.
This
is
also
the
findings
arrived
at
while
disposing
the
review
petition.





[7] preparing
a
fresh
seniority
list
giving
you
seniority
over
the
private
respondent.

Your
representation
thus
stands
disposed
of.






















Yours
faithfully
(C.L.
Das,
IFS)
Addl.
Secretary
to
the
Government
of
Tripura.
[6]
7 &# ""     "     



      &    ./00.5         .1 & 0..6 

     400..6   '04/&0..07 ""   & & ./00.5    + "       "   $ 

 !&  

+ $+  ! +    ""        "+ +$   0. &  ' " & '#  /:
  &  .1&0..6 ""  #   &  " & $

"  &*# 

 400..1   '04/&0..0 +

', ""

 05&0..6 

&  .1&0..6'# "  $& $   # + "   &"  #  &   " "

  +   <#  "  + "

 ," $&  " 

( "&    # & &

&# +          *#      400..1 





[8] '# 

    $ "

 #    0 &  ' " & '#  /: & 

    "  &      0 + ' " & '#  /:   

A &  & " + -   " & $ &   #  [7] ,#  #    #   "" 

& "    #+        "   "     +#"

$    <#$  -  "

    &  &



+ 

 &  ' #

96

   0..       && & :.4//6  &   0:.0..6

(#;B   && ; ;""         & 7  && & +$"  +  #= "10.
That
in
regard
to
the
statement
made
in
paragraph
5
of
the
contempt
petition
it
is
stated
that
it
is
not
true
that
an
application
drawing
attention
about
dismissal
of
review
petition
was
submitted
by
Sri
Satyesh
Ch.
Deb
to
the
Principal
Secretary,
Forests
and
PCCF,
Gurkhabasti,
Agartala
on
21.02.2014.
However,
one
application
drawing
attention
about
dismissal
of
the
review
petition
was
received
from
Sri
Satyesh
Ch.
Deb
in
the
office
of
Principal
Secretary,
Forests
on
25.02.

2014
wherein
he
requested
to
pass
an
order
for
compliance
of
the
order
of
the
Hon'ble
High
Court
in
restoring
his
seniority
and
consequential
benefits.

11.
That
in
regard
to
the
statement
made
in
paragraph
6
of
the
contempt
petition
it
is
stated
that
it
is
true
that
the
application
of
Sri
Satyesh
Ch.
Deb
received
on
25.02.2014
in
the
office
of
Principal
Secretary,
Forests
was
disposed
of
by
a
letter
dated
29.05.2014
under
signature
of
the
Addl.
Secretary,
Government
of
Tripura
saying
that
the
order
of
the
Hon'ble
High
Court
dated
16.12.





[9] Amendment
and
thus,
fresh
seniority
list
as
ordered
cannot
be
issued.
12.
That
in
regard
to
the
statement
made
in
paragraph
7
of
the
contempt
petition
it
is
stated
that
the
Judgment
and
Order
dated
16.12.2004
of
the
Hon'ble
High
Court
against
the
Case
No.W.P.(C)
269
of
2002
could
not
be
implemented
in
view
of
notification
issued
by
GA
(P&T)
Department,
Government
of
Tripura
vide
No.F.23(3)BGA(P&T)/2004
dated
27.01.2005
which
is
in
compliance
of
the
amendment
of
Clause
4(A)
of
Article
16
of
the
Constitution
of
India
made
by
the
Constitution
(85th)
Amendment
Act,
2001.
The
same
has
also
been
narrated
in
the
Judgment
and
Order
made
in
Rev.Pet.
No.04
of
2005
in
W.P(C)
No.269
of
2002
dated
09.12.

2013
of
the
Honourable
High
Court

vide
paraB18
which
is
reproduced
below:
'A
ancillary
question
that
comes
to
the
force
that
what
remedy
would
available
to
State
after
such
validating
act.
That
issue
should
not
be
compounded
by
any
complex
interpretation.
Executability
of
judgment
has
been
slighted
and
the
declaration
as
to
the
law
has
been
entirely
debased
retaining
any
effect,
from
the
date
on
which
the
validating
action
has
come
into
effect.'
Thus,
there
was
no
deliberate
and
wilful
violation
of
the
direction
of
the
Honourable
High
Court.
13.
That
in
regard
to
the
statement
made
in
paragraph
8
of
the
contempt
petition
it
is
stated
that
it
is
a
fact
that
a
CM
application
No.

33
of
2005
was
filed
before
the
Hon'ble
High
Court
seeking
time
extension
for
compliance
of
the
order
passed
by
the
Hon'ble
High
Court
on
16.12.2004
in
W.P.(C)
269
of
2002.
But,
in
view
of
the
notification
issued
by
the
GA
(P&T)
Department,
Government
of
Tripura
vide
No.F.23(3)BGA(P&T)/2004
dated
27.01.2005
which
is
in
compliance
of
the
amendment
of
Clause
4(A)
of
Article
16
of
the
Constitution
of
India
made
by
the
Constitution
(85th)
Amendment
Act,
2001,
the
same
could
not
be
implemented."
14.
That,
I
again
repeat
that
I
never
had
any
intention
to
disobey
or
flour
any
judgment
or
order
of
this
Hon'ble
Court.
Accordingly,
I
again
submit
that
instant
contempt
proceeding
should
be
dropped.





[10] 7 ""  "  "  +    

$&#    
[8] ,' - +$     %  "" 

& "  #+  "  


 +       "   &   "      "

! && 

+ +> &# + ?   #     " C  #   #+ 8#  #     +#    '#     

$ &#     "

  +  +$    '# #  + - #(



$  "       "

#  0&' "&'#  +      & $  (" ..50..4 JUDGE