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CASE NO.: Appeal (civil)  6253 of 1998

PETITIONER: State of  Tripura & Ors.                                         

RESPONDENT: K.K. Roy                                                         

DATE OF JUDGMENT: 12/12/2003

BENCH: CJI & S.B. Sinha

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

       Having been selected by the Tripura Public Service Commission, the  respondent herein was appointed as Law Officer-cum-Draftsman in the  Directorate of Cooperation, Government of Tripura.  There was only one  post in the same Cadre and it had no promotional avenues.  He filed a  representation that his post be upgraded or two promotional avenues be  provided to him.  Several representations made by him having not  received  consideration at the hands of the appellants, the respondent herein filed a  writ petition seeking for  a specific direction upon the appellant herein to  provide at least two promotional avenues.  The said contention of the  respondent was accepted by the High Court and by reason of its impugned  judgment  the appellant was directed to provide ’the graded scale’ to the  appellant by providing three grades, the initial being Grade III which is the  Post of Law Officer \026 cum \026 Draftsman and thereafter Grade II and Grade I.   Officer of Tripura Judicial Service.  It was further directed:

"The scale of pay of Grade \026 II Law officer-cum- Draftsman shall be same as Grade-II officer of the  Tripura Judicial Service.  The scale of pay of  Grade-I Law Officer-cum-Draftsman shall be  equal to the scale of pay of Grade-I officer of  Tripura Judicial Service."

       Questioning the said direction, the appellants are before us.   

       The learned counsel appearing on behalf of the appellant would  submit that the High Court went wrong in issuing the aforementioned  direction.  The learned counsel would urge that the respondent herein did not  have any legal right to be promoted to a higher post far less the right to get  the scale of pay of Grade I officer of the Tripura Judicial Service.  Such a  direction by the High Court, the learned counsel would contend, is wholly  without jurisdiction.  The learned counsel, appearing on behalf of the  respondent, however, has supported the said order.   Indisputably, the post of Law Officer-cum-Draftsman is a single cadre  post.  It is also undisputed that there does not exist any promotional avenue  therefor.  The respondent is holder of a Master Degree as also a Degree in  Law.  He was appointed in the year 1982.  If the contention of the appellant  is to be accepted, the respondent would be left without being promoted  throughout his career.  In almost an identical situation, a Bench of this Court  in Council of Scientific and Industrial Research and Another Vs. K.G.S.  Bhatt and Another [(1989) 4 SCC 635] held:

"...It is often said and indeed, adroitly, an  organisation, public or private does not ’hire a

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hand’ but engages or employs a whole man. The  person is recruited by an organisation not just for a  job, but for a whole career, One must, therefore, be  given opportunity to advance. This is the oldest  and most important feature of the free enterprise  system. The opportunity for advancement is a  requirement for progress of any organisation. It is  an incentive for personnel development as well.  (See : Principles of Personnel Management by  Flipo Edwin B., 4th edn., p. 246). Every  management must provide realistic opportunities  for promising employees to move upward. "The  organisation that fails to develop a satisfactory  procedure for promotion is bound to pay a severe  penalty in terms of administrative costs,  misallocation of personnel, low morale, and  ineffectual performance, among both non- managerial employees and their supervisors." (See  : Personnel Management by Dr. Udai Pareek, p.  277). There cannot be any modern management  much less any career planning, manpower  development, management development, etc.,  which is not related to a system of promotions..."

       The matter came up for consideration again in Dr. Ms. O.Z. Hussain  Vs. Union of India [1990 (Supp) SCC 688] wherein this Court in no  uncertain terms laid down the law stating:

"...Promotion is thus a normal incidence of service.  There too is no justification why while similarly  placed officers in other ministries would have the  benefit of promotion, the non-medical ’A’ Group  scientists in the establishment of Director General  of Health Services would be deprived of such  advantage. In a welfare State, it is necessary that  there should be an efficient public service and,  therefore, it should have been the obligation of the  Ministry of Health to attend to the representations  of the Council and its members and provide  promotional avenue for this category of officers..."

       It is not a case where there existed an avenue for promotion.  It is also  not a case where the State intended to make amendments in the promotional  policy.  The appellant being a State within the meaning of Article 12 of the  Constitution should have  created promotional avenues for the respondent  having regard to its constitutional obligations adumbrated in Articles 14 and  16 of the Constitution of India.  Despite its constitutional obligations, the  State cannot take a stand that as the respondent herein accepted the terms  and conditions of the offer of appointment knowing fully well that there was  no avenue of appointment, he cannot resile therefrom.  It is not a case where  the principles of estoppel or waiver should be applied having regard to the  constitutional functions of the State.  It is not disputed that the other States in  India Union of India  having regard to the recommendations made in this  behalf by the Pay Commission introduced the scheme of Assured Career  Promotion in terms whereof the incumbent of a post  if not promoted within  a period of 12 years is granted one higher scale of pay and another upon  completion of 24 years if in the meanwhile he had not been promoted  despite existence of promotional avenues.  When questioned, the learned  counsel appearing on behalf of the appellant, even could not point out that  the State of Tripura has introduced such a scheme.  We wonder as to why  such a scheme was not  introduced by the Appellant like the other States in  India, and  what impeded it from doing so.   Promotion being a condition of  service and having regard to the requirements thereof as has been pointed  out by this Court in the decisions referred to hereinbefore, it was expected  that the Appellant should have followed the said principle..  

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       We are, thus,  of the opinion that the respondent herein is at least  entitled to grant of two higher grades, one upon expiry of the period of 12  years from the date of his joining of the service and the other upon expiry of  24 years thereof.   

       The learned counsel appearing for the appellant, is, however, correct  in his submission that the High Court in exercise of its jurisdiction under  Article 226 of the Constitution of India could have issued a writ of or  in the  nature of Mandamus directing the appellant herein to grant a scale of pay  which would be equivalent to Grade II or Grade I of the Judicial Service of  the State.

       For the reasons aforementioned, we direct that the respondent herein  be paid two promotions in the next higher scale of pay  upon his completion  of 12 years and 24 years in service.  This appeal is disposed of with the  aforementioned directions.  No costs.