Research › Search › Judgment

Tripura High Court · body

2014 DIGILAW 417 (TRI)

Rajesh Ghosh v. State of Tripura

2014-12-15

DEEPAK GUPTA

body2014
JUDGMENT Deepak Gupta, CJ. 1. By means of this petition, the petitioner has challenged the validity of Rule 5, Rule 7 and Rule 16(2)(a) of the Tripura Engineering Service Rules (hereinafter referred as 'the Rules') as being arbitrary and has further prayed that all the posts which were lying vacant prior to the amendment of the Rules should be filled in as per the un-amended Rules. 2. The petitioners are all officers born in Grade-V(A) of the Rules. All the petitioners are degree holders. At the time when the petitioners were appointed to the service, the Rules provided that 12% of the posts in Grade-IV would be filled in from Grade IV TES degree holder officers on the basis of a departmental examination. As per the second amendment brought in the year 1989, 48% posts in the grade of Assistant Engineers were to be filled up from Diploma holder Junior Engineers, Grade-I, 40% by promotion from Junior Engineer Grade-I (Degree holders) and 12% by promotion from Junior Engineers, Grade-1 degree holders on the basis of a departmental examination to be conducted by the TPSC. 3. The relevant portion of the Rules reads as follows:- "3(a)1) 48% of the vacancies in the grade of Asstt. Engineer will be filled up by promotion from amongst the Junior Engineers Grade-1 (Diploma holders). 11) 40% of the vacancies in the grade of Asstt. Engineer will be filled up by promotion from amongst the Junior Engineers Grade-1 (Degree holders). 111) 12% of vacancies in the grade of Asstt. Engineer will be filled up by promotion from amongst the Junior Engineers Grade-I (Degree holders) through Departmental competitive examination on Engineering subjects of appropriate branches to be conducted through Tripura Public Service Commission." 4. Engineer will be filled up by promotion from amongst the Junior Engineers Grade-1 (Degree holders). 111) 12% of vacancies in the grade of Asstt. Engineer will be filled up by promotion from amongst the Junior Engineers Grade-I (Degree holders) through Departmental competitive examination on Engineering subjects of appropriate branches to be conducted through Tripura Public Service Commission." 4. By the amendment brought in the Rules in the year 2007, this system has been changed and now the rule reads as follows:- "(1) Direct recruitment (a) 20% of the posts in the authorized permanent strength of Grade-IV of the service shall be filled by direct recruitment from candidates who have at least a degree in an appropriate branch of engineering from a recognized University or its equivalent academic qualification and at least 2 years' experience of service under the Government or a Government Undertaking or a registered Public Sector Unit in the manner as specified in PART-IV of these rules; Provided that the candidates having a Post-Graduate Degree in engineering shall be given preference. (2) Recruitment by selection The remaining substantive vacancies in the permanent strength of various Grades of the Service shall be filled by selection in the manner as specified in PART-V of these rules; Provided that- (b) 40% of the posts in Grade-IV of the service shall be filled by Degree holder engineers of Grade-V(A) and the remaining 40% of the posts in Grade-IV of the service shall be filled by Diploma holder engineers of Grade-V(A);" It is the contention of the petitioners that now 20% posts are to be filled in by direct recruitment. The contention of the petitioners is that by amendment of the Rules their vested right of competing in test has been taken away and they have been deprived of their right of promotion. On the other hand, the stand of the State is that no vested right has been taken away and even now the petitioners can apply against the direct recruitment quota. 5. I have heard learned counsel for the parties at length and I am unable to accept the contention of the petitioner that the amendment to the Rule is un-constitutional or ultra vires. It is for the employer to decide what should be the promotional avenues available. It is also for the employer to decide what method of recruitment should be applied. It is for the employer to decide what should be the promotional avenues available. It is also for the employer to decide what method of recruitment should be applied. The amendment to the Rules cannot be said to be un-constitutional or arbitrary. It may have affected the promotional rights, but that does not mean that the Rule is contrary to law or the Constitution. Therefore, I find no merit in the argument that the amendment to the Rule is unconstitutional. 6. The second point raised by Mr. S.M. Chakraborty, learned senior counsel is that in so far as those posts of Assistant Engineers which were vacant prior to the amendment of the Rules on 23rd April, 2007 are concerned, the earlier Rules shall apply and those posts have to be filled in on the basis of the Rules as they existed prior to 23rd April, 2007. There is merit in this contention. Though the State may have a right to amend the Rules and change the method of recruitment and even the sources of recruitment, the State cannot do this with retrospective effect and take away the rights which may vested in parties. 7. As per the earlier Rules, which were in force since July, 1989, 12% posts in the cadre of Assistant Engineers had to be filled up on the basis of a departmental test to be conducted by the Public Service Commission. The stand of the State is that the syllabus for such test could never be prepared by it and therefore, the test was not conducted. It was for the State to have finalized the syllabus and for the Public Service Commission to conduct the examination. The petitioners had a right to be considered for promotion. They had a right to appear in the departmental test and that right cannot be taken away by the amendment of 2007 which is prospective in nature and has no retrospective effect at all. In this behalf reference may be made to two judgments of the Apex Court. 8. In Arjun Singh Rathore And Others vs. B.N. Chaturvedi And Others,: (2007) 11 SCC 605 , the Apex Court held as follows:- "5. Mr. In this behalf reference may be made to two judgments of the Apex Court. 8. In Arjun Singh Rathore And Others vs. B.N. Chaturvedi And Others,: (2007) 11 SCC 605 , the Apex Court held as follows:- "5. Mr. Calla, the learned senior counsel for the appellants has argued that the matter was fully covered by the judgment of this Court in State of Rajasthan v. R. Dayal [1997(10)SCC 419] wherein it had been held that the vacancies to be filled by promotion were to be filed under the rules which were in operation on the date when the vacancies had occurred. Relying on and referring to an earlier judgment in Y.V. Rangaiah v. J. Sreenivasa Rao [ (1983) 3 SCC 284 ] it was opined as under: (SCC p. 422, para 8) "8. ...This Court has specifically laid (sic) that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in in accordance with the law existing as on the date when the vacancies arose." 6. The above legal position has not been seriously disputed by the learned counsel for Respondents 6 and 7. We are therefore of the opinion that the vacancies which had occurred prior to the enforcement of the Rules of 1998 had to be filled in under the Rules of 1988 and as per the procedure laid down therein. We are therefore of the opinion that the judgment of the learned Single Judge needs to be restored. We order accordingly." 9. Similar views was expressed by the Apex Court in A. Manohran And Others vs. Union Of India And Others,: (2008) 3 SCC 641 wherein the Court held as follows:- "25. Furthermore, the Regulations have been amended only with effect from 11.08.2004. It would have a prospective effect. It cannot be applied retrospectively. Any vacancy which has arisen prior to coming into force of the said amended Regulations must be filled up in terms of the law as was existing prior thereto. Furthermore, the Regulations have been amended only with effect from 11.08.2004. It would have a prospective effect. It cannot be applied retrospectively. Any vacancy which has arisen prior to coming into force of the said amended Regulations must be filled up in terms of the law as was existing prior thereto. (State of Rajasthan v. R. Dayal : (1997) 10 SCC 419 , SCC para 8.) 10. Therefore, the writ petition is partly allowed. The challenge to the constitutional validity of the amendment made in the Rules in 2007 is not accepted. However, a writ is issued that 12% of the vacancies in Grade-IV in the rank of Assistant Engineer existing prior to 23rd April, 2007 shall be filled up on the basis of the departmental examination. The State shall frame the syllabus for such examination within 3 (three) months from today. Thereafter, the Public Service Commission should complete the entire examination process within three months thereafter. 11. The writ petition is disposed of with the aforesaid directions.