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2009 DIGILAW 606 (GAU)

Mithu Deb v. State of Tripura

2009-08-26

T.NANDAKUMAR SINGH

body2009
JUDGMENT T.Nk. Singh, J. 1. By this writ petition, the writ petitioner is assailing the impugned memorandum bearing No. F. 3(13)-DSWE/ESTT/2002/1962(19) dated Agartala, the 21.9.2007 for cancelling the appointment of the petitioner as Lower Division Clerk (LDC) in the Directorate of Social Welfare and Social Education, Government of Tripura. 2. Heard Mr. S.M. Chakraborty, learned senior counsel, assisted by Ms. P. Chakraborty, learned Counsel appearing for the petitioner as well as Mr. S. Chakraborty, learned Additional Government Advocate for the State respondents. 3. A succinct fact leading to the filing of the present writ petition is noted. The petitioner appeared before the duly constituted interview board as a General candidate held on 20.3.1990 for filling up of 18 posts of the Lower Division Clerk out of which 12 posts are meant for the General candidates. Admittedly, the petitioner is one of the selected candidates whose name appeared in the panel of the selected candidates. It is also stated that out of the selected candidates, 10 candidates had been appointed as Lower Division Clerk in the Directorate of Social Education and Social Welfare, Government of Tripura. As the petitioner was not appointed even though she is the selected candidate, she filed a civil suit being Title Suit No. 21 of 1991 in the Court of the Sadar Munsiff, West Tripura, Agartala against the present respondents and the relief sought for in the said Title Suit No. 21 of 1991 was for a direction to the defendants (respondents herein) to appoint the petitioner to the post of Lower Division Clerk in the Directorate of Social Education and Social Welfare, Government of Tripura. The defendants (respondents herein) also filed their written statement, wherein the defendants admitted that the plaintiff (petitioner herein) was one of the 12 selected candidates and also that she was to be appointed to one of the post of the Lower Division Clerk in the General Category but because of the revision of employment policy of the Government of Tripura, the plaintiff (petitioner herein) could not be appointed to the post of Lower Division Clerk. The learned Munsiff Sadar, West Tripura, Agartala, after considering the rival contentions of the parties in their respective pleadings, framed as many as five issues, which read as follows: (1) Whether the suit is maintainable? (2) Whether the suit is bad for defect of parties? The learned Munsiff Sadar, West Tripura, Agartala, after considering the rival contentions of the parties in their respective pleadings, framed as many as five issues, which read as follows: (1) Whether the suit is maintainable? (2) Whether the suit is bad for defect of parties? (3) Whether the plaintiff is entitled to get appointment to the post of Lower Division Clerk on the basis of interview dated 29.3.1990? (4) Whether the plaintiff is entitled to get the decree as prayed for? (5) To what other relief/reliefs plaintiff is entitled? 4. The learned Munsiff Sadar, West Tripura, Agartala vide judgment and decree dated 12.3.1993 in Title Suit No. 21 of 1991, directed the defendant (respondents herein) to appoint the petitioner/plaintiff to the post Lower Division Clerk within two months from the date of passing the said judgment and decree i.e. 12.3.1993 and also to give her the benefit of seniority and pay to which she would have been entitled, if she had been given the appointment in due time. The findings of the learned Munsiff Sadar, West Tripura, Agartala in his judgment and decree dated 12.3.1993 in respect of Issue No. 3 whether the plaintiff in entitled to get appointment to the post of Lower Division Clerk on the basis of interview dated 29.3.1990' read as follows: It is admitted position that the plaintiff figured at S1. No. 11 of the panel of general candidates and 12 persons were to be recruited. The case of the defendants as deposed by DW-1 is that the plaintiff could not be appointed because of revision of employment policy according to which 12 persons are appointed. It is deposed that the plaintiff was not eligible for appointment under the revised employment policy. It is an admitted position that plaintiff was one of the 12 persons who was to be appointment to one of the posts of Lower Division Clerk from general candidates. Case of the defendants is that she could not be appointed because of the change of employment policy of the Government. What requires determination is whether this plea is acceptable? According to the general rules and procedure of the Government, employment policy is formulated first and decision on matters connected to the proposed employment or appointment is taken. Case of the defendants is that she could not be appointed because of the change of employment policy of the Government. What requires determination is whether this plea is acceptable? According to the general rules and procedure of the Government, employment policy is formulated first and decision on matters connected to the proposed employment or appointment is taken. Thereafter, interview is taken and selection is made on the basis of the interview and offers of appointment are given and ultimately the selected candidates are appointed. Revision of employment policy subsequent to taking of interview is unheard which is something like putting the cart before the horse and is an impossibility. It is not in evidence as to what was the revised employment policy and how the plaintiff was not eligible under that policy or for that matter how those appointed were eligible. In the absence of those evidence, depriving the plaintiff from the appointment for which she qualified on the pretext of revised employment policy is not at all acceptable. Hence, it is decided that plaintiff is entitled to get appointment to the post of Lower Division Clerk on the basis of interview dated 29.3.1990. A bare perusal of the above finding of the learned Munsiff Sadar, West Tripura, Agartala in the judgment and decree dated 12.3.1993 passed in Title Suit No. 21 of 1991, it clearly reveals that the case of the defendants (respondents herein) that the petitioner/plaintiff could be appointed to the post of Lower Division Clerk even though she is one of the 12 selected candidates merely on a plea of revision of employment policy of the Government of Tripura had already been considered and not accepted by the Ld. Munsiff Sadar, West Tripura, Agartala. 5. Munsiff Sadar, West Tripura, Agartala. 5. The present respondents did not prefer any appeal against the judgment and decree dated 12.3.1993 passed by the learned Munsiff Sadar, West Tripura, Agartala in Title Suit No. 21 of 1991, wherein the defendants (respondents herein) had been directed to appoint the petitioner to the post of Lower Division Clerk, rather by accepting the aforesaid judgment and decree dated 12.3.1993, the respondents (defendants in Title Suit No. 21 of 1991) issued the Memorandum being No. F. 34(22)-SWE/LA/91, dated, Agartala, the 227.1993, for appointing the petitioner to the post of Lower Division Clerk w.e.f. 1.3.1991 for the purpose of seniority in pursuance of the judgment and decree dated 12.3.1993 passed by the learned Munsiff Sadar, West Tripura, Agartala in Title Suit No. 21 of 1991. It is the further case of the petitioner that the said judgment and decree dated 12.3.1993 passed by the learned Munsiff Sadar, West Tripura, Agartala in Title Suit No. 21 6f 1991 had attained the finality and also had been accepted land duly complied with by the respondents by issuing the said Memorandum dated 22.7.1993, appointing the petitioner to the post of Lower Division Clerk in the Directorate of Social Welfare and Social Education, Government of Tripura. 6. One of the selected candidates, namely, Sutapa Nath whose name also appeared in the panel list for the post of Lower Division Clerk had approached this Court by filling writ petition being Civil Rule No. 196/1994 against the present respondents for a direction to the respondents to appoint her (petitioner in Civil Rule No. 196/1994) to the post of Lower Division Clerk as per the position obtained by her in the select list on the basis of the interview/type test held on 31.3.1990 along with retrospective effects w.e.f. 11.2.1991. This Court (Single Bench) vide judgment and order dated 16.3.2001 finally allowed the writ petition i.e. Civil Rule No. 196 of 1994, wherein and whereunder, this Court directed that respondents, more particularly, the Director of Social Welfare and Social Education, Government of Tripura and the Additional Director, Social Welfare and Social Education, Government of Tripura, to appoint the petitioner of Civil Rule 196 of 1994 with effect from, the date when the others had been appointed pursuant to the result of the aforesaid interview (Annexure-8 to the present writ petition). 7. 7. The State-respondents being aggrieved by the judgment and order of the learned single Judge dated 16.3.2001 passed in Civil Rule No. 196 of 1994 had preferred an appeal being Writ Appeal No. 83 of 2001 before the Division Bench of this Court and the Hon'ble Division Bench vide judgment and order dated 8.3.2007 had allowed Writ Appeal No. 83 of 2001, the operative portion of the said judgment and order read as follows: 11. In view of the aforesaid discussions, we are of the opinion that there could have been no direction for appointment of the writ petitioner to the post of LDC and accordingly we interfere with the direction given by the learned single Judge for such appointment. The writ petition (SIC) is allowed to the extent as indicated above. 12. It is needless to say that since the Government has already taken a decision to permit all the candidates who had earlier appeared in the selection process to participate in the fresh selection process without considering the age bar, the writ petitioner would also be allowed to participate in the fresh selection process and her candidature would be considered by the authorities on merit. 8. On perusal of the judgment and order of the Division Bench dated 8.3.2007 passed in Writ Appeal No. 83 of 2001, it is clear that no direction had been issued by the Division Bench of this Court to the State-respondents to cancel the appointment of the present petitioner as a Lower Division Clerk in the Directorate of Social Welfare and Social Education, Government of Tripura. It is the further case of the present petitioner that since the date of her appointment vide Memorandum dated 22.7.1993, which was issued pursuant to the judgment and decree dated 12.3.1993 passed by the learned Munsiff Sadar, West Tripura, Agartala in Title Suit No. 21 of 1991, the petitioner had continued to serve as Lower Division Clerk in the Directorate of Social Welfare and Social Education, Government of Tripura and while she (present petitioner) was serving in that capacity, the Director, Social Welfare and Social Education, Government of Tripura, issued a Memo/Show Cause Notice being No. F. 3(13)-DSWE/ESTT/2002, dated, Agartala, the 24.8.2002, asking the petitioner to show cause within ten days of receipt of the Memo as to why her (present petitioner) appointment as Lower Division Clerk in the Directorate shall not be terminated (Annexure-4 to the present writ petition). In response to the said Show Cause Notice dated 24.8.2002, the petitioner had submitted her show cause reply dated 3.9.2002 through the proper channel, wherein the petitioner had stated very clearly that she had been appointed to the post of Lower Division Clerk under the Directorate of Social Welfare and Social Education pursuant to the judgment and decree dated 12.3.1993 passed by the learned Munsiff Sadar, West Tripura, Agartala in Title Suit No. 21 of 1991 and also the said judgment and decree dated 12.3.1993 was passed by the learned Munsiff Sadar, West Tripura, Agartala, after due consideration of the case of the State-respondent. The State-respondents, after receiving the said show cause reply dated 3.9.2002 filed by the petitioner, did not take up any action for a considerable number of years and only on 21.9.2007, the Director, Social Welfare and Social Education, Government of Tripura, issued the impugned memorandum dated 21.9.2007 for cancelling the appointment of the petitioner as Lower Division Clerk in the Directorate of Social Welfare and Social Education, Government of Tripura. Hence, the present writ petition. 9. The respondents also filed their counter-affidavit in the present writ petition, wherein the respondents had admitted that the petitioner is one of the selected candidates for appointment to the post of Lower Division Clerk in the Directorate of Social Welfare and Social Education, Government of Tripura. Hence, the present writ petition. 9. The respondents also filed their counter-affidavit in the present writ petition, wherein the respondents had admitted that the petitioner is one of the selected candidates for appointment to the post of Lower Division Clerk in the Directorate of Social Welfare and Social Education, Government of Tripura. The only plea of the respondents in their counter affidavit is that the sow cause notice dated 24.8.2002 was issued to the petitioner on the ground that the employment policy was circulated under Memorandum No. F. 1(2)-GA/77 dated 8.6.1988 of the Appointment and Services Department, and that 50% to the post advertised were to be filled up on merit basis and the remaining 50% on Need criteria subject to fulfillment of other conditions as set forth in the employment policy itself. But the said panel of the candidates was prepared and recommended by the said selection Board for consideration for appointment to the post of Lower Division Clerk without following the said employment policy and the position of the petitioner was at S1. No. 11 in the respective merit category and in the Office Memorandum No. F. 34(22)-SWE/LA/91 dated 22.7.1993, the seniority in the general category in which the petitioner belongs was not properly followed and consequently the order of seniority assigned to ten other candidates recommended by the Selection Board was superseded. 10. As stated above, the case of the State-respondents regarding revision of employment policy of the Government of Tripura had already been discussed and not accepted by the learned Munsiff Sadar, West Tripura, Agartala vide his judgment and decree dated 12.3.1993 passed in Title Suit No. 21 of 1991. 10. As stated above, the case of the State-respondents regarding revision of employment policy of the Government of Tripura had already been discussed and not accepted by the learned Munsiff Sadar, West Tripura, Agartala vide his judgment and decree dated 12.3.1993 passed in Title Suit No. 21 of 1991. The main thrusts for assailing the impugned Memorandum dated 21.9.2007, cancelling the appointment of the petitioner are that the judgment and decree dated 12.3.1993 passed by the learned Munsiff Sadar, West Tripura, Agartala in Title Suit No. 21 of 1991 had attained the finality and also had been implemented by the present respondents by issuing the Memorandum dated 22.7.1993 for appointing the petitioner to the post of Lower Division Clerk in the Directorate of Social Welfare and Social Education, Government of Tripura, w.e.f. 1.3.1991 and also that so long as the said judgment and decree dated 12.3.1993 passed by the learned Munsiff Sadar, West Tripura, Agartala in Title Suit No. 21 of 1991 is not set aside by any higher Court, the appointment of the petitioner as Lower Division Clerk cannot be cancelled merely on the plea of 'revision of employment policy of the Government of Tripura', which had been already considered by the learned Munsiff Sadar, West Tripura, Agartala in his judgment and decree dated 12.3.1993 passed in Title Suit No. 21 of 1991. 11. Mr. S.M. Chakraborty, learned senior counsel appearing for the petitioner, in support of the petitioner's case, had placed reliance on the decision of this Court (Division Bench) in: (1) Union of India and Ors. v. Swapan Kr. Deb 2006 (2) GLT 139; (2) Regional Director, Employees State Insurance Corporation and Ors. v. Secretary, Employees State Insurance Corporation Employees Union and Ors. 2006 (1) GLT 599; and also the decision of the Apex Court in (3) Venkata Reddy and Ors. v. Pethi Reddy AIR 1963 SC 992 ; (4) Commissioner, Karnataka Housing Board v. C. Muddaih (2007) 7 SCC 689 . 12. In the case of Regional Director, Employees State Insurance Corporation, case (supra) the employees of the Corporation posted in the North-Eastern Region had filed Original Application before the learned Central Administrative Tribunal, Guwahati Bench basing on certain Office Memorandums for a direction to pay the Special Duty Allowance (SDA) to them. 12. In the case of Regional Director, Employees State Insurance Corporation, case (supra) the employees of the Corporation posted in the North-Eastern Region had filed Original Application before the learned Central Administrative Tribunal, Guwahati Bench basing on certain Office Memorandums for a direction to pay the Special Duty Allowance (SDA) to them. The learned Central Administrative Tribunal had allowed the Original Application filed by the employees of the Corporation posted in the North Eastern Region by issuing a direction to the Corporation to pay the SDA to the said employees of the Corporation. The direction of the learned Central Administrative Tribunal had been complied with by the concerned authority by paying the SDA to the said employees of the Corporation. After such compliance, the Apex Court in Union of India and Ors. v. S. Vijaykumar and Ors. reported in 1994 Supp (3) SCC 649, held that the Special Duty Allowances was meant to attract persons outside the North Eastern Region to work in that Region because of inaccessibility and difficult terrain and with a view to attract and retain the services of the competent officers for service in North Eastern Region and the SDA shall be entitled to the employees of the Corporation from the other Region posting in the North Eastern Region and the SDA shall not be entitled to the employees of the Corporation from the North Eastern Region. It appears that before the decision of the Apex Court in Vijaykumar's, case (supra) the SDA was paid to the employees posted in the North Eastern Region irrespective of they are from the other parts of the country or from the North Eastern Region itself. Basing on the ratio laid down by the Apex Court in Vijaykumar's case (supra) the Corporation issued the order for denying the SDA to the employees whose case had already been decided finally by the learned Central Administrative Tribunal that they should be entitled to get the SDA. Basing on the ratio laid down by the Apex Court in Vijaykumar's case (supra) the Corporation issued the order for denying the SDA to the employees whose case had already been decided finally by the learned Central Administrative Tribunal that they should be entitled to get the SDA. This Court (Division Bench) in Regional Director, Employees State Insurance Corporation, case (supra) held that the SDA already enjoyed by the employees of the Corporation pursuant to the directions of the Central Administrative Tribunal, cannot be denied because of the subsequent decision of the Apex Court in Vijaykumar's case (supra) inasmuch as the order of the Central Administrative Tribunal directing the Corporation to pay the SDA to the said employees of the Corporation had already been attained finality and also had been implemented by the Corporation by paying the SDA to the said employees, Paras 17, 18 and 19 of the SCC in Regional Director, Employees State Insurance Corporation, case (supra) read as follows: 17. It appears from the said office memorandum dated 29.5.2002 that the admissibility of SDA of the postal employees belonging to the North Eastern Region Upon posting in the said region on the basis of the promotion pursuant to the All India common seniority and on their posting to NE region from outside the region, has not been dealt with. 18. Let us now consider the submission of the learned Counsel for the parties on the point whether the aforesaid decision of the Apex Court will any way effect the rights of the employees/officers already accrued to them, prior to the said decisions of the Apex Court by virtue of the decisions given by the learned Tribunal in the applications where they were parties. 19. Doctrine of finality of judgment or the principles of res-judicata are founded on the basis principle that when a Court of competent jurisdiction renders any judgment, the same ought to be allowed to be agitated again and again. The judgment which attained finality cannot be reopened and the benefit occurred therein cannot be taken away by the authority by issuing any order or office memorandum, which is contrary to such decision, on the ground that the position of law has been changed because of the subsequent decision of the Apex Court, unless of course the Apex Court directs otherwise or such decisions of the competent Court/Tribunal is challenged and set aside. Such decision would operate as res-judicata between the parties to such decision. Therefore, the rights of the employees/officers accrued under the order of the learned Tribunal, which attained finality, cannot be taken away because of the subsequent decision of the Apex Court in S. Vijaykumar's case. The learned Counsel for the petitioners also could not place any direction of the Apex Court that the said decision shall effect all the judgments already rendered by any competent Court/Tribunal. 13. This Court (Division Bench) also reiterated the ratio laid down by this Court (Division Bench) in Regional Director, Employees State Insurance Corporation, case (supra) in Swapan Kr. Deb's case (supra). 14. The Apex Court in C. Muddaih's case (supra), also held that: We are of the considered opinion that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. If an order passed by a Court of law is not complied with or is ignored, there will be an end of the rule of law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected. (Ref. Para 32 of the SCC in C. Muddaih's case (supra)). 15. In the given case, keeping in view the ratio of the decisions in (1) Union of India and Ors. v. Swapan Kr. Deb, 2006 (2) GLT 139; (2) Regional Director, Employees State Insurance Corporation and Ors. v. Secretary, Employees State Insurance Corporation Employees Union and Ors. 2006 (1) GLT 599, and also the decision of the Apex Court in (3) Venkata Reddy and Ors. v. Pethi Reddy AIR 1963 SC 992 , as well as in (5) Commissioner, Karnataka Housing Board v. C. Muddaih (2007) 7 SCC 689 , this Court is of the considered view that the submission of Mr. 2006 (1) GLT 599, and also the decision of the Apex Court in (3) Venkata Reddy and Ors. v. Pethi Reddy AIR 1963 SC 992 , as well as in (5) Commissioner, Karnataka Housing Board v. C. Muddaih (2007) 7 SCC 689 , this Court is of the considered view that the submission of Mr. S.M. Chakraborty, learned senior Counsel for the petitioner holds good, inasmuch as the order passed by a competent Court has to be obeyed and implemented without any reservation and if the parties against whom such order is passed has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law but it cannot be made ineffective by not complying with the direction on a specious plea that such direction could not have been issued by the Court. 16. Such being the settled position of law, the judgment and decree dated 12.3.1993 passed by the learned Munsiff Sadar, West Tripura, Agartala in Title Suit No. 21 of 1991, which had attained the finality and had already been accepted and implemented by the State-respondents, cannot be made ineffective by passing the impugned Memorandum dated 21.9.2007, wherein and whereunder, the appointment of the petitioner a Lower Division Clerk in the Directorate of Social Welfare and Social Education, Government of Tripura had been cancelled on the plea that directions to appoint the petitioner to the post of Lower Division Clerk in the Directorate of Social Welfare and Social Education, Government of Tripura, could not have been issued because of the revision of employment policy by the Government of Tripura. 17. For the foregoing reasons and discussions, this Court is of the considered view that the impugned Memorandum dated 21.9.2007 is required to be interfered with so far as the present petitioner is concerned. Accordingly, the impugned Memorandum dated 21.9.2007 in respect of the petitioner only is hereby set aside; and the petitioner shall be reinstated in service forthwith. The arrear pay and allowances of the petitioner shall be decided by passing a reason order by the respondents within a period of 4 (four) months from the date of receipt of the certified copy of this judgment and order. The writ petition is allowed accordingly.