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2014 DIGILAW 247 (TRI)

Manas Nath v. State of Tripura

2014-06-26

S.C.DAS

body2014
JUDGMENT S.C. Das, J. 1. Heard learned counsel Mr. D.K. Biswas for the petitioner and learned counsel Mr. A. Ghosh, for the State-respondents. No representation on behalf of respondent No. 4. 2. By order dated 25.07.1996 (Annexure-A to the writ petition) issued by the District Magistrate & Collector, North Tripura, Kailashahar, the petitioner, a Diploma holder Engineer, was appointed in the post of Junior Engineer Grade-II and he was posted in the office of B.D.O., Dasda, Kanchanpur, North Tripura. He joined the post on 07.08.1996. In the year 1996 itself he prayed for permission to the authority for higher studies and he was granted extra ordinary leave to go for higher studies (Bachelor of Engineering) and accordingly, he joined the North-eastern Regional Institute of Science and Technology (for short, NERIST) and completed his bachelor degree in Engineering in the year 1997. By a letter dated 20.01.1998 (Annexure-F to the writ petition), the petitioner submitted his mark sheet and provisional pass certificate of B.Tech to the Joint Secretary, Rural Development Department, Govt. of Tripura informing that since he completed the B.Tech Course and became a degree holder Engineer, he was entitled to up-gradation as Junior Engineer Grade-I. By writing letter, dated 04.03.1998 (Annexure-G to the writ petition), Under Secretary to the Govt. of Tripura, Rural Engineering Department asked the concerned Department to submit original certificate of B.Tech mark sheet and some other information and accordingly those information were furnished. There is no dispute that in the year 1998 itself all relevant documents in respect of the petitioners availing of the B.Tech degree were furnished to the respondents. 3. As per service rules, the petitioner was entitled to movement from Grade-II Junior Engineer to Grade-I Junior Engineer on his completion of four years of service, had he been a Diploma holder Engineer. Letter of Under Secretary to the Govt. of Tripura, Rural Development Department dated April 26, 2002 (Annexure-E to the writ petition) makes it clear that a Diploma holder Grade-II Junior Engineer shall be entitled to the movement to Grade-I on his completion of four years of service in Grade-II and in the said letter it was also clarified that a Diploma holder Engineer serving in the regular scale of Grade-II is entitled to get the scale of Grade-I after he obtained degree in Engineering taking permission from the Department and subject to satisfactory performance and service records. Though the petitioner submitted his all testimonials regarding his B.Tech Degree in the year 1998, his movement to Junior Engineer Grade-I was not immediately given to him by the respondents and it was kept pending. 4. Unfortunately, in the year 2000 a disciplinary inquiry was initiated against him and during pendency of the disciplinary inquiry, in the year 2000, some Diploma holder Junior Engineers, who completed four years of service and some of them were junior to the petitioner, were allowed movement to Grade-I Junior Engineers scale and a copy of the order dated 11.06.2002 (Annexure-K to the writ petition) is submitted as a proof of the fact. Since the petitioner was deprived of his movement in Junior Engineer Grade-I on both the count of his attaining bachelor degree as well as on his completion of four years of satisfactory service on the ground of pendency of disciplinary inquiry, he moved the High Court by filing WP(C)438 of 2004 and by order dated 09.12.2004 (Annexure-M to the writ petition), the High Court directed that the disciplinary inquiry against the petitioner should be completed within two months from the date of receipt of the copy of the order. Thereafter, indisputably, by order dated 30.03.2005 (Annexure-N to the writ petition), the charges framed against the petitioner was dropped. Thereafter by order dated 04.05.2006 (Annexure-U to the writ petition), the petitioner was allowed movement to Junior Engineer Grade-I from Junior Engineer Grade-II w.e.f. 18th May 2005 on the ground that he obtained B. Tech Degree in Civil Engineering from NERIST. He was not given the movement from the year 1998 when he obtained the B. Tech degree and not even from the year 2000 when he completed 4 years of satisfactory service and hence, felt aggrieved, he filed the writ petition seeking direction to the respondents for giving him the benefit of movement in Junior Engineer Grade-I from the date of passing B. Tech examination in the year 1997 and to modify memo dated 04.05.2006 (Annexure-U) accordingly as well as to direct the respondents to give the benefit of seniority and other consequential benefits of service. 5. Respondents contended that the petitioner could not be given the benefit of movement since a disciplinary enquiry was pending against him and he was given the benefit w.e.f. 18th May 2005 in view of the amendment of the Service Rule in the meantime. 6. 5. Respondents contended that the petitioner could not be given the benefit of movement since a disciplinary enquiry was pending against him and he was given the benefit w.e.f. 18th May 2005 in view of the amendment of the Service Rule in the meantime. 6. It is an admitted position that the petitioner joined the job as a Diploma holder Engineer in the year 1996. Had he remained a Diploma holder Engineer, he would get the movement on his completion of four years of service as per rules. It is also an admitted position that according to rules, in the event a Diploma holder Engineer attains degree in B. Tech, he will be entitled to get the scale of Grade-I. It is not disputed that the petitioner got the B. Tech degree in the year 1997 and by Annexure-F to the writ petition, on 20.01.1998 he has brought it to the notice of the Department that he obtained the degree. Thereafter the Department asked the District Magistrate of North Tripura District to submit original certificate and some other documents and those were also submitted. While all those testimonials were submitted in the year 1998 about the petitioner's position that he obtained the B. Tech Degree, he was entitled to get the Grade-I scale from the date he brought it to the notice of the Department i.e. from 20.01.1998. In 1998 admittedly there was no Departmental inquiry or proceeding against him. Even if there was a departmental proceeding or inquiry pending against him that would not stand as an embargo in giving him the position of Junior Engineer Grade-I on the basis of his obtaining the B. Tech Degree. The stand of the Department that in view of the amendment of the Service Rule in the year 2005, the petitioner was given the benefit w.e.f. 18th May 2005 also cannot stand since the amendment was given effect subsequent to the right accrued in favour of the petitioner. It has already been held by the judgment of Division Bench of this Court in WP(C) 17 of 2008 (Sujit Dutta Vrs. It has already been held by the judgment of Division Bench of this Court in WP(C) 17 of 2008 (Sujit Dutta Vrs. State of Tripura & Ors.) that it is the settled principle of law that the vested rights of the employee cannot be taken away by the employer State and in exceptional cases, where such vested rights are to be taken away there must be specific contention showing that the intention of the State to amend the rules retrospectively. Since the right of the petitioner to get the benefit of movement to Junior Engineer Grade-I accrued in the year 1998 when he reported the Department about his bachelor degree, he was entitled to get the same from the date it was reported to the Department and not subsequent thereto. 7. Annexure-K to the writ petition, i.e. order dated 11.06.2002 issued by the District Magistrate & Collector, North Tripura shows that 7(seven) Diploma holder Junior Engineers Grade-II were allowed movement to the Junior Engineer Grade-I with retrospective effect. In the case of the petitioner also the benefit should be given with retrospective effect from the date the petitioner brought it to the notice of the Department that he got the B. Tech degree. 8. The writ petition is, therefore, allowed. 9. The respondents are directed to give the benefit of Junior Engineer Grade-I to the petitioner w.e.f. 20.01.1998, the date petitioner brought it to the notice of the Department that he got the B. Tech degree and the respondents are further directed to give all service benefits including the seniority to the petitioner notionally w.e.f. 20.01.1998. The order should be complied within 45 days from today. 10. The writ petition accordingly stands disposed of. 11. Parties to bear their own costs.