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2011 DIGILAW 370 (GAU)

Biswajit Som v. State of Tripura

2011-04-27

BIPLAB KUMAR SHARMA

body2011
JUDGMENT B.K. Sharma, J. 1. Heard Mr. D. K. Biswas, learned counsel for the petitioner as well as Mr. S. Talapatra, learned senior counsel appearing for the State respondents along with Mr. B. Banerjee, learned State counsel. I have also heard Mr. P. Datta, learned counsel appearing for the Public Service Commission. 2. The short question that calls for consideration in this writ petition is, as to whether the petitioner, who is aspirant for the post of Junior Architect in the Public Works Department should be provided with age relaxation enabling consideration of his case for such appointment. The petitioner's prayer for age relaxation is on account of crossing the upper age limit for offering candidature. Although when he was appointed under the respondents on contractual basis, he was well-within the prescription of the age limit, the interpretation sought to be given by the respondents is that since the petitioner's service on contractual basis cannot be said to be a Government service, he is not entitled to any age relaxation as is being provided to Government employees.- Be it stated here that when the advertisement in question was issued in the year 2007, the petitioner was in the Employment Roll of the respondents on contractual basis and that he was appointed as such, when he was within the age limit. 3. Briefly stated, the facts leading to filing of the instant writ petition are that the petitioner pursuant to the Annexure-1 advertisement No.1/2005 dated 24.01.2005 for contractual appointment to the post of Assistant Architect, was appointed as such on a fixed monthly salary of Rs. 5,000/-. Initially, he was appointed for a period of one year and thereafter, his contractual service was extended by another two years. 4. When the petitioner was in the aforesaid service, the Annexure-3 advertisement was issued by the Tripura Public Service Commission for the post of Junior Architect. The prescribed upper age limit was 37 years for un-reserved category candidates as on 15.01.2008. By Annexure-5 letter dated 20.12.2007, the Government of Tripura, in the Public Works Department provided for relaxation of upper age limit by 5 years for SC/ST/PH/Ex-Serviceman/Government employee. As on 15.01.2008, the petitioner's age was slightly above 38 years and thus, if the age relaxation was provided to him, he would have been able to participate in the selection process. By Annexure-5 letter dated 20.12.2007, the Government of Tripura, in the Public Works Department provided for relaxation of upper age limit by 5 years for SC/ST/PH/Ex-Serviceman/Government employee. As on 15.01.2008, the petitioner's age was slightly above 38 years and thus, if the age relaxation was provided to him, he would have been able to participate in the selection process. Although he had offered his candidature for the post with the prayer for relaxation of age, which was admissible for certain categories of candidates including Government employees, his prayer having been rejected, he had approached this Court by filing the writ petition being W. P. (C) No. 114/2008. By an interim order, the petitioner was allowed to participate in the selection process and accordingly, he participated in the selection process. 5. The writ petition was disposed of by order dated 22.09.2008 with the direction to consider the case of the petitioner for age relaxation enabling his participation in the selection for the post of Junior Architect. For a ready reference, the operative part of the said order is quoted below: - I have carefully gone through both the decisions cited by the learned counsel appearing for the rival parties. While the decision in Dr. Jamuna Kurup case was rendered in the context of Municipal Corporation, the decision in Girish Jayantilal Vaghela & Ors. (supra) are squarely applicable to the facts of this case. Faced with this situation, Mr. S. M. Chakraborty, learned senior counsel for the petitioner, however, submits that the number of years put in by the petitioner as a contract appointment cannot be set at naught at this stage and that justice and equity demand that the respondents should use the power of relaxation given him Rule 6 of the recruitment rules for the post of Junior Architect in P. W. D. (Annexure-L) and suitably relax the age of the petitioner to avoid hardship and to ensure justice to him. Considering the fact that the petitioner has already rendered contract service with the State Government and also the fact that he will not be eligible to apply for any post under public employment elsewhere, the State respondents are directed to consider the case of the petitioner for relaxing his age so as to enable him to participate in the recruitment process in question within a period of 3(three) months from today, communicate their decision to the TPSC which shall then consider the case of the petitioner on the basis of his performance in the recruitment examination and/or interview, as the case may be without further delay. Subject to the aforesaid directions and observations, this writ petition stands dismissed without cost. (emphasis added) 6. The aforesaid direction of this Court was carried on appeal by the respondents by means of Writ Appeal No. 16/2009 but the same was dismissed considering the nature of the direction issued. 7. After the aforesaid development, the matter was placed before the Council of Ministers by way of a memorandum for consideration of the case of the petitioner for age relaxation. 8. By memorandum dated 09.12.2009 (Annexure-6 to the writ petition), copy of the minutes of the meeting of the Council of Ministers held on 08.12.2009 and as approved by the Chief Minister of the State was forwarded as per the requirement of Rule 17 of the Executive Business. The minutes of the meeting in respect of agenda item No. 6 pertaining to the petitioner speaks as follows:- Item No. 6: Proposal for one time relaxation of the age bar for direct recruitment in favour of Shri Biswajit Som for consideration his candidature for the post of Junior Architect (in compliance of Court order) under Public Works Department (P.W. Deptt. File No. F.4(394) - PWD (LC)/2009 (S) dated 07.12.2009) Approved. 9. The aforesaid approval of the Council of Ministers conveyed by memorandum dated 09.12.2009 naturally, generated hopes and expectations to the petitioner, but that was short lived as the same was followed by another memorandum dated 24.12.2009 (Annexure-7 to the writ petition) issued by the same very authority, which had issued the earlier memorandum dated 09.12.2009. 9. The aforesaid approval of the Council of Ministers conveyed by memorandum dated 09.12.2009 naturally, generated hopes and expectations to the petitioner, but that was short lived as the same was followed by another memorandum dated 24.12.2009 (Annexure-7 to the writ petition) issued by the same very authority, which had issued the earlier memorandum dated 09.12.2009. By the said Annexure-7 memorandum dated 24.12.2009, another resolution of the Council of Ministers started to be approved by the Chief Minister of the State was communicated and the same reads as follows:- Item No.6: Proposal for one time relaxation of the age bar for direct recruitment in favour of Shri Biswajit Som for consideration his candidature for the post of Junior Architect (in compliance of Court order) under Public Works Department (P.W. Deptt. File No. F. 4 (394)-PWD (LQ/2009 (S) dated 07.12.2009). In view of para 10 of the memorandum, the proposal for one time relaxation of the age bar for direct recruitment in favour of Shri Biswajit Som for consideration of his candidature for the post Junior Architect is not approved. (emphasis added) 10. Being aggrieved by the aforesaid development, the petitioner has once again approached this Court by invoking its writ jurisdiction. In the writ petition, it is the stand of the petitioner that he being a contractual employee of the Government, his age ought to have been relaxed as is expected of a model employer. It is the stand of the petitioner that the proposal for age relaxation having been approved by the Council of Ministers, the same could not have been set at naught by the subsequent memorandum conveying altogether a different resolution nullifying the earlier resolution of approval of age relaxation. The petitioner has also questioned the procedural propriety in altering the earlier resolution whereby the approval of age relaxation was conveyed. 11. The respondents have filed their counter affidavit, in which it has been contended that what was approved by the Council of Ministers was the proposal made in the Cabinet Memorandum. According to the respondents, the approval was to the proposal made in the Cabinet Memorandum, more particularly, the contents of paragraph 10 of the said memorandum. For a ready reference, paragraph 10 of the memorandum dated 07.12.2009 is reproduced below:- 10. According to the respondents, the approval was to the proposal made in the Cabinet Memorandum, more particularly, the contents of paragraph 10 of the said memorandum. For a ready reference, paragraph 10 of the memorandum dated 07.12.2009 is reproduced below:- 10. On the above grounds, Council of Ministers may like to consider and take a decision that pursuant to the Court's order dated 22.09.2008 passed in WP(C) No. 114 of 2008 and order dated 29.10.2009 passed in WA 16 of 2009, the prayer of Sri Biswajit Som has been considered and found that Sri Som was on contract service for a specified period on fixed remuneration and was never an employee of the State Government in the sense of employment as per the Service Rules meant for appointment to the post of Junior Architect (The Recruitment Rules for the post of Junior Architect in PWD dated 12.11.2007) and therefore Rule 6 of the said Rule is not applicable in the case of Sri Som and that Sri Som is no longer in contract service as his tenure of contract service has already expired on 06.07.2008 and hence prayer of Sri Som for relaxation of his age could not be approved. 11. Hon'ble Chief Minister has kindly consented for placing the matter before the Council of Ministers for consideration. Sd/-(Y.P.Singh) Principal Secretary, PWD, Government of Tripura. (emphasis added) 12. From the aforesaid proposal made by the Principal Secretary, PWD, Government of Tripura, what is seen is that, in fact it was not a proposal, but a direction to the Council of Ministers as to what was to be done by the Council of Ministers as was suggested in the said paragraphs, which is, as pointed out by Mr. Biswas, learned counsel for the petitioner is contrary to the mandates to Rule 17 of the Rules of Executive Business. Rule 17 reads as follows:- 17. When it has been decided to bring a case before the Council, the Department to which the case belongs shall, unless the Chief Minister otherwise directs, prepare a Memorandum indicating with sufficient precision the salient facts of the case and the points for decision. Such Memorandum and such other papers as are necessary to enable the case to be disposed of shall be circulated to the Ministers. Copies of the Memorandum and other papers shall at the same time be sent to the Governor. (emphasis added) 13. Such Memorandum and such other papers as are necessary to enable the case to be disposed of shall be circulated to the Ministers. Copies of the Memorandum and other papers shall at the same time be sent to the Governor. (emphasis added) 13. Mr. Biswas, learned counsel for the petitioner has drawn my attention to the earlier memorandum dated 17.04.2009 prepared by the same very authority i.e. the Principal Secretary, PWD. In the said memorandum, the brief facts leading to the proposal for age relaxation of the petitioner were stated and no opinion as such was expressed, as was done in the subsequent memorandum dated 07.12.2009. 14. If we go by the agenda Item No.6 and the approval thereof, what transpires is that the proposal for one time relaxation of the age bar for direct recruitment in favour of the petitioner was approved by the Council of Ministers. However, things started moving thereafter and by subsequent interpretation and with the purported approval of the Chief Minister, the word "approved" was conveyed as "not approved" and that too, in reference to, above-quoted paragraph 10 of the memorandum dated 07.12.2009. 15. As noted above, when the advertisement for the post of Junior Architect was issued on 02.12.2007, the petitioner was very much in employment of the respondent-department. While it is true that he was in contractual appointment, but his such appointment was pursuant to the Annexure-1 advertisement No. 1/2005 for the post of Assistant Architect, which is stated to be a higher post than that of the Junior Architect. The petitioner, although in its strict term was not a regular Government employee in the department, but he was in Government Roll since he was appointed on the basis of the said advertisement, by which applications had been invited from eligible candidates. The State Government, considering the facts and circumstances and more particularly, when it is expected to play a role of model employer ought to have extended relaxation of age to the petitioner instead of depriving him even from participation in the selection process. 16. From the materials on record, it is not discernible as to whether there was in fact, any mistake on the part of the Council of Ministers when the first approval was accorded to the proposal made for relaxation of the upper age limit in respect of the petitioner. 16. From the materials on record, it is not discernible as to whether there was in fact, any mistake on the part of the Council of Ministers when the first approval was accorded to the proposal made for relaxation of the upper age limit in respect of the petitioner. The said approval was sought to be negated by subsequent clarification and that too, in reference to the aforementioned paragraph 10 of the Cabinet Memorandum dated 07.12.2009. As noted above, under Rule 17 of the Rules of Executive Business, the only duty of the authority towards submitting the memorandum is to indicate in sufficient precision the salient facts of the case and the points for decision and not the decision itself. In the instant case, the Principal Secretary, P. W. D. by his observation in paragraph 10 of the office memorandum, in fact suggested the decision itself and if the said decision, as is said to have been approved by the Council of Ministers as has been contended will also mean mechanical consideration of the memorandum without applying sound discretion. 17. I have perused the entire materials on record, from which, it appears that what the Council of Ministers had approved is the agenda item No.6, in which, the proposal for one time relaxation of the age bar for direct recruitment in favour of the petitioner was proposed. The Council of Ministers having approved the said agenda item, it will have to be understood that the proposal for relaxation was approved by the Council of Ministers. Any amount of later interpretation and/or persuasion made to the Chief Minister cannot alter that position. No where in the first approval, there was any indication of the aforesaid paragraph 10 of the office memorandum. That being the position, the authorities by any subsequent interpretation could not have altered the position, as is reflected in the aforementioned Annexure-6 memorandum dated 09.12.2009. Another aspect of the matter is that even if any alteration was made, the same being not by the Council of Ministers, but only in reference to the Chief Minister, such alteration cannot dilute the earlier resolution of the Council of Ministers. 18. For all the aforesaid reasons, this writ petition is allowed directing the respondents to provide age relaxation to the petitioner consistently with the observations made above and thereafter, to consider his candidature and selection, in which he has already sat. 19. 18. For all the aforesaid reasons, this writ petition is allowed directing the respondents to provide age relaxation to the petitioner consistently with the observations made above and thereafter, to consider his candidature and selection, in which he has already sat. 19. Let appropriate order in terms of this order be passed as expeditiously as possible, but at any rate, not later than 31st May, 2011. The records produced in sealed cover shall be handed over to Mr. B. Banerjee, learned State counsel. Petition allowed