STATE OF TRIPURA AND ORS.versusK.K. ROY

                 STATE OF TRIPURA AND ORS.                             A.
                                  v.
                             K.K. ROY

                       DECEMBER 12, 2003

             (V.N. KHARE, CJ., AND S.B. SINHA, J.]                      B

    Service Law :

      Promotion-Assured Career Promotion-Promotional avenues-Sin-
gle post cadre-Government employee appointed to a single post cadre C
with no promotional avenues-Validity of-Held: State should have created
promotional avenues for its employees-Such employees entitled to one
higher scale of pay after completion of 12 years and another upon
completion of 24 years if not promoted in the meanwhile-Constitution of
India, 1950, Arts. 14 and 16.
                                                                        D
      The respondent was appointed as Law Officer-cum-Draftsman in
the appellant's establishment. There was only one post in the cadre
with no promotional avenues. The respondent filed a writ petition
before the High Court for a direction to the appellant to provide at
least two promotional avenues, which was allowed. Hence the appeal. E

     Disposing the appeal, the Court

      HELD : 1.1. 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 F
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 accepted the terms and conditions of the offer of appoint-
ment knowing fully well that there was no avenue of appointment, he
cannot resile therefrom. It is not a case where the pri~iples of estoppel G
or waiver should be applied having regard to the constitutional
functions of the State. It is not disputed that other States in 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 H
                                  781
    782                SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A 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 avenu~s. [784-E-H; 785-A)

          Council of Scientific and Industrial Research v. K. G.S. Bhatt, [19891
B 4 SCC 635 and Dr. Ms. OZ. Hussain v. Union ofIndia, (1990) Supp. SCC
    688, relied on.

         1.2. It is directed that the respondent be given two promotions in
    the next higher scale of pay upon his completion of 12 years and 24
    years in service. (785-E)
c       . CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6253 of
    1998.

         From the Judgment and Order dated 7.4.97 of the Assam High Court
    at Gauhati in W.A. No. 10 of 1997.
D
          Navin Prakash, Anurag Shatina for Gopal Singh for. the Appellants.

          S.V. Deshpande for the Respondent.

          The Judgment of the Court was delivered by
E
           S.B. SINHA, J. : Having been selected by 1he 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
F   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 C::ourt and by reason
G   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-cum-Draftsman _and thereafter Grade
    II and Grade I. Officer of Tripura Judicial Service. It was further directed:

H           · "The scale of pay of Grade II Law officer-cum-Draftsman shall
                   STATE v. K.K. ROY [SINHA, J.]                       783

        be same as Grade-II officer of the Tripura Judicial Service. The A
        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.          B
        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. C
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 D
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 E
of this Court in Council of Scientific and Industrial Research and Another
v. 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 hand' but engages or employs a whole
         man. The person is recruited by an organisation not just for a job, F
         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 G
         Management by Flipo Edwin B., 4th edn., p. 246). Every man-
         agement must provide realistic opportunities for promising em-
         ployees to move upward. "The organisation that fails to develop
         a satisfactory procedure for P• omotion is bound· to pay a severe
         penalty in terms of administrative costs, misallocation of person- H
    784                 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A            nel, 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 ... "
B
           The matter came up for consideration again in Dr. Ms. O.Z. Hussain
    v. Union ofIndia, [1990] Supp SCC 688 wherein this Court in no uncertain
    terms laid down the law stating:

C            "... 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
D            State, it is necessary that there should be an efficienf 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 ... "
E
            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 adum-
F    brated 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 for promotion
     appointment, he cannot resile therefrom. It is not a case where the
G   .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
                   ST ATE v. K.K. ROY (SINHA, J.)                      785

upon completion of24 years ifin the meanwhile he had not been promoted A
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 B
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 ..

        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 C
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 D
Article 226 of the Constitution of India could not 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   E
be paid two promotions in the next higher scale of pay upon his con1pletion
of 12 years and 24 years in service. This appeal is disposed of with the
aforementioned direct=ons. No costs.

v.s.s.                                                Appeal disposed of.