Research › Search › Judgment

Tripura High Court · body

2014 DIGILAW 70 (TRI)

Pranay Saha v. Babul Chakraborty

2014-02-12

DEEPAK GUPTA, S.C.DAS

body2014
JUDGMENT Deepak Gupta, C.J.:- Both these appeals are being disposed of by a common judgment since they arise out of one writ petition and one judgment. The learned Single Judge vide the impugned judgment allowed the writ petition filed by Sri Babul Chakraborty (hereinafter referred to as the writ petitioner) and quashed the seniority list dated 26-09-2008 (Annexure-32 to the writ petition) and directed the respondents, i.e. the State of Tripura and the Department of Science, Technology and Environment (hereinafter referred to as DSTE) to prepare a fresh final seniority list showing the petitioner senior to respondent No. 5, Sri Pranay Saha (hereinafter referred to as the private respondent). The judgment has been challenged both by the private respondent as well as by the State of Tripura. Briefly stated, the facts of the case are that both the writ petitioner and the private respondent were selected for appointment as Jr. Engineers in the Power Department of the State of Tripura in a duly constituted selection conducted by the Tripura Public Service Commission (TPSC). 2. The writ petitioner was appointed as Jr. Engineer on 03-02-1984 in the Power Department. On 20-10-1987, the petitioner was transferred to the Office of Senior Scientific Officer, Non-Conventional Energy Cell, under the DSTE, Govt. of Tripura. The order was passed by the Chief Engineer (Electrical), Tripura, Agartala. The petitioner joined in the said office on 26-11-1987. The petitioner was designated as Assistant Engineer (Electrical) w.e.f. 01-01-1986 vide Order dated 21-06-1989. He continued to work in the Office of the Senior Scientific Officer, DSTE. On 14-03-1990, the petitioner was posted as Environment Officer in the said department and on 05-07-1991, he was posted as Scientific Officer in the said department. Thereafter, on 22-02-1999 the petitioner was appointed as Engineer (Electronics) on ad-hoc basis from the date of joining of this post. On 01-11-2002, 15 years after the petitioner had been transferred to the DSTE, a corrigendum was issued that his appointment as Engineer (Electronics) on ad-hoc basis be read as appointment to the said post on deputation w.e.f. 22-02-1999. On 15-06-2005, the Governor of Tripura, in consultation with the TPSC, was pleased to appoint the petitioner as Engineer (Electronics) with retrospective effect from 10-04-2002 in the DSTE on regular basis. 3. On the other hand, the private respondent was appointed as Jr. On 15-06-2005, the Governor of Tripura, in consultation with the TPSC, was pleased to appoint the petitioner as Engineer (Electronics) with retrospective effect from 10-04-2002 in the DSTE on regular basis. 3. On the other hand, the private respondent was appointed as Jr. Engineer (Mechanical) in the Department of Power on 27-01-1984, i.e. one week prior to the petitioner. On 30-01-1984, an order was passed whereby the private respondent was released from the Electrical Division of the Power Department and directed to report in the office of the Senior Scientific Officer, Non-Conventional Energy Cell. In compliance to the said order, the private respondent joined the said office of the Senior Scientific Officer. On 05-09-1986, the Senior Scientific Officer issued a memorandum, copy of which was sent to the private respondent, wherein it was stated that some newly created posts in the DSTE are to be filled up on absorption of the existing staff who are working on deputation from the Public Works Department (PWD). The incumbents who were willing to join the department on absorption were asked to submit their declaration in this regard. The private respondent submitted his declaration praying that he be absorbed in the DSTE, provided the benefits of his service in the parent department were also extended. On 12-11-1986, an order was passed in which it was stated that the private respondent who was on deputation from the PWD stood absorbed in the DSTE. On 29-04-1987, the post of Jr. Engineer in the DSTE was redesignated as Project Officer. The private respondent was redesignated as Project Officer on the same date. On 13-08-1997, an order was passed in compliance with Civil Rule No. 42 of 1995 passed by the Gauhati High Court whereby the respondent was treated to be on deputation till 01-10-1986 against the supernumerary post of Assistant Engineer and his pay was fixed firstly as Assistant Engineer w.e.f. 01-01-1986 and as Project Officer w.e.f. 01-10-1986. On 19-02-1990, the private respondent was promoted as Scientific Officer on ad-hoc basis. In the Final Seniority List of Project Officers in the DSTE up to 29-11-2002 issued on 04-12-2002, the private respondent was shown to be the only person. On 29-10-2003 after consultation with the TPSC, the Governor of Tripura was pleased to regularize the ad-hoc promotion of the private respondent as Scientific Officer which took place on 19-02-1990 on regular basis with retrospective effect from 05-07-1994. On 29-10-2003 after consultation with the TPSC, the Governor of Tripura was pleased to regularize the ad-hoc promotion of the private respondent as Scientific Officer which took place on 19-02-1990 on regular basis with retrospective effect from 05-07-1994. Thereafter, on 25-08-2004 another notification was passed with the concurrence of the TPSC and by this order, the ad-hoc promotion of the private respondent as Senior Scientific Officer on 22-02-1999 was regularized in the DSTE with retrospective effect from 05-07-2001. 4. Two other facts need to be noticed. The Recruitment Rules for appointment of Project Officers were notified on 27-06-1994 and the Recruitment Rules for Senior Scientific Officer were notified only on 24-10-1998. 5. On 04-04-2007, a memorandum was issued whereby various posts were created in the DSTE including the post of Joint Director in the DSTE. As per the rules, the posts of Senior Scientific Officer and Engineer (Electronics) are feeder posts to this newly created post. The private respondent as per the earlier seniority was senior to the petitioner as he had been appointed as Senior Scientific Officer much before the petitioner was appointed as Engineer (Electronics). Thereafter, the petitioner started representing that he should be shown senior to the private respondent, but a final seniority list was published on 26-09-2008 in which the private respondent was shown senior to the petitioner. Against this final seniority list, the petitioner filed the present writ petition. 6. One of the main grounds raised was that the private respondent was posted to the post of Senior Scientific Officer when he was still holding the post of Project Officer on ad-hoc basis and relying upon the judgment of the Gauhati High Court in Achintya Ghosh Roy v. State of Tripura & others in Civil Rule 202 of 1996, it is contended that promotion from ad-hoc to ad-hoc cannot be given. It is prayed that the petitioner be declared senior to the private respondent. 7. The private respondent contested the petition and rejoinder was also filed and the petitioner has now raised certain other issues viz. that the very initial appointment of the private respondent in DSTE is bad and illegal. It is also contended that the private respondent who was on deputation to the DSTE from the Power Department could not be given promotion to higher grade unless his services were regularized in the initial post held by him. that the very initial appointment of the private respondent in DSTE is bad and illegal. It is also contended that the private respondent who was on deputation to the DSTE from the Power Department could not be given promotion to higher grade unless his services were regularized in the initial post held by him. It is urged that the absorption of the private respondent w.e.f. 01-10-1986 is illegal because the Recruitment Rules came into force only on 27-06-1994. It is contended by Sri R. Chakraborty, learned counsel, on behalf of the writ petitioner that the absorption itself was illegal. The next contention was that the private respondent was appointed as Scientific Officer on ad-hoc basis vide notification dated 19-02-1990 whereas the rules for this post were also published on 27-06-1994. Further it is submitted that the private respondent was promoted as Senior Scientific Officer on ad-hoc basis on 22-02-1999. As per the rules for this post which were notified on 24-10-1998, the post could be filled up from the Scientific Officers with 7 years experience in the grade and also on transfer/deputation from the post of Executive Engineer under the PWD/Power Department. The main contention in this regard is that when the private respondent was holding the post of Scientific Officer on ad-hoc basis, he could not be promoted as Senior Scientific Officer. 8. The learned Single Judge held that the seniority will have to be counted from the date of regularization in service and not otherwise. The learned Single Judge also held that the private respondent was wrongly promoted as Senior Scientific Officer on ad-hoc basis when he was still holding the post of Scientific Officer on ad-hoc basis. Therefore, the promotion given to the private respondent to the posts of Scientific Officer and Senior Scientific Officer were said to be dehors the rules and the regularization was also held to be bad. This judgment is under challenge both by the private respondent and by the State of Tripura. 9. The facts which clearly emerge are that the appellant-private respondent was senior to the petitioner when initially appointed as Jr. Engineer in the Power Department. The private respondent joined on 27-01-1984 whereas the petitioner joined as Jr. Engineer on 03-02-1984. The private respondent in terms of the orders issued by his department went and joined the newly created department of DSTE. Engineer in the Power Department. The private respondent joined on 27-01-1984 whereas the petitioner joined as Jr. Engineer on 03-02-1984. The private respondent in terms of the orders issued by his department went and joined the newly created department of DSTE. It is contended that he was sent outside his parent department without any order of deputation and, therefore, his initial appointment in the DSTE is bad. I am not at all in agreement with this submission. The private respondent was an employee who had joined 3 (three) days earlier. He had been selected through the TPSC after a proper and regular test. His employer directed him to join the DSTE. Why should the private respondent suffer even if there be some irregularity in the matter? It appears that though the departments were de jure separate, but de facto the Power Department was making all the orders. This is obvious from the fact that even the petitioner was sent on transfer to the DSTE. The petitioner who himself went on transfer to some other department in a similar fashion, cannot now claim that since the private respondent was not properly sent to the DSTE, he should not be deemed to be an employee of that department. 10. The Court while interpreting the laws and the rules must ensure that justice is done and it would be a travesty of justice if for the fault of the senior officials of the department, the private respondent who had joined after proper selection through the TPSC is deprived of the service rendered by him in the DSTE. In fact, there is no merit in this argument because the irregularity, if any, was regularized when the private respondent was asked to give an option for being absorbed in the DSTE. He gave an option to do so and, therefore, was regularly absorbed in the DSTE. In any event, this point cannot be raised by the writ petitioner since he also went to the DSTE by transfer and the transfer was modified to deputation 15 years later. 11. It is contended by Sri Chakraborty that when there were no Recruitment Rules, how could the private respondent be validly appointed. There is no merit in this submission. In any event, this point cannot be raised by the writ petitioner since he also went to the DSTE by transfer and the transfer was modified to deputation 15 years later. 11. It is contended by Sri Chakraborty that when there were no Recruitment Rules, how could the private respondent be validly appointed. There is no merit in this submission. If the appellant-State/the appointing authority does not frame rules under Article 309, then it can still make appointments and in the absence of rules, executive orders and instructions can take the place of rules. 12. In Kumari Manju and another v. State of Himachal Pradesh ( AIR 1972 HP 37 ), a Division Bench of the Himachal Pradesh High Court held that even the provisions contained in the prospectus for admission to the Medical College would have the force of statutory rules and regulations. Appointments can be made to a post even in the absence of the rules, but some criteria must be followed. The criteria can be laid down in the executive instructions. In this case, the State took a decision to absorb those employees of the Power Department who were working in the DSTE as employee of the DSTE. Hence, the absorption of the private respondent in the DSTE is strictly legal and proper. In any event, as held by us earlier, the petitioner who himself went on transfer from the Department of Power to the DSTE cannot be permitted to raise such an argument. 13. A number of authorities have been cited by Sri R. Chakraborty, learned counsel for the original writ petitioner. These are AIR 1994 SC 1808 (J & K Public Service Commission v. Dr. Narinder Mohan and others), AIR 1995 SC 586 (V. Sreenivasa Reddy and others v. Govt. of Andhra Pradesh and others), AIR 1996 SC 1565 (State of Himachal Pradesh v. Suresh Kumar Verma and another), AIR 1996 SC 3230 (Hindustan Shipyard Ltd. and others v. Dr. P. Sambasiva Rao etc.), AIR 2007 SC 1082 (Punjab Water Supply and Sewerage Board v. Ranjodh Singh & others), and AIR 2007 SC 2588 (The State of Orissa & others v. Prasana Kumar Sahoo). In all these judgments what has been laid down is that if Recruitment Rules have been framed, they must be followed. The rule of relaxation cannot be exercised in matters of any recruitment unless it is necessary to remove undue hardship. In all these judgments what has been laid down is that if Recruitment Rules have been framed, they must be followed. The rule of relaxation cannot be exercised in matters of any recruitment unless it is necessary to remove undue hardship. We are of the considered view that none of these judgments apply in the present case. There were no rules when the private respondent was initially absorbed in DSTE and later on promoted as Scientific Officer. In the absence of rules, his promotion had to be made as per the executive and administrative instructions issued from time to time. The rules which were framed much later in the year 1994 cannot have retrospective effect. The service rendered by the private respondent from 1984 till the rules were framed in 1994 and in 1998 cannot be set at naught only because the department did not frame the rules. 14. As far as the judgments of the Apex Court in AIR 2005 SC 1252 (Mahendra L. Jain and others v. Indore Development Authority and others), AIR 2005 SC 2404 (Bhadei Rai v. Union of India and others), (2005) 3 GLR 72 (Mejum Karga v. State of Arunachal Pradesh and others), AIR 2007 SC 1211 (Union of India & others v. S.K. Saigal & others), and AIR 2007 SC 2588 (State of Orissa & others v. Prasana Kumar Sahoo) are concerned, these are not applicable to the present case. All these judgments only state that regularization is not a mode of recruitment and no person can be appointed in violation of the rules. There is no quarrel with this proposition, but in the present case the appellant was promoted at a time when there were no rules in force and when there are no rules, then executive and administrative instructions can be issued. It is only when rules have been framed that no action contrary to the rules can be taken. In any event, it has not been shown that the petitioner was not eligible even under these rules. When the private respondent was promoted as Senior Scientific Officer, he had put in more than seven years service as Scientific Officer albeit on ad-hoc basis. Therefore, we find no merit in the contention of the original writ petitioner, and we disagree with the finding of the learned Single Judge that the appointment of the petitioner was dehors the rules. When the private respondent was promoted as Senior Scientific Officer, he had put in more than seven years service as Scientific Officer albeit on ad-hoc basis. Therefore, we find no merit in the contention of the original writ petitioner, and we disagree with the finding of the learned Single Judge that the appointment of the petitioner was dehors the rules. When there were no rules, how could the appointment be dehors the rules? 15. The next question is as to whether the appellant-private respondent could have been promoted as Senior Scientific Officer on ad-hoc basis while he was still holding the post of Scientific Officer on ad-hoc basis. In this regard, heavy reliance has been placed on the order of the learned Single Judge of the Gauhati High Court dated 04-06-1996 which reads as follows:-- Heard Mr. C.S. Sinha, learned counsel appearing on behalf of the petitioner. Also heard Mr. P. Deb Roy, learned counsel appearing on behalf of the respondents. This Misc. petition has arisen in connection with Civil Rule No. 202 of 96 wherein the petitioner has thrown a challenge as to the legality, propriety and validity of the order dated 25.11.95 contained in Annexure-7 whereby the respondent No. 4, Kanai Lal Das has been promoted to the post of Superintending Engineer (Electrical) on ad hoc basis. The contention of Mr. Sinha is that admittedly respondent No. 4 who has been promoted to the post of Superintending Engineer on ad hoc basis was holding the post of Executive Engineer on ad hoc basis and on this simple ground, this order is liable to be quashed. He, therefore, submits that in view of the facts, this order of promotion should at least be stayed until disposal of the writ petition. The respondents have not filed any counter. However, the order dated 25.11.95 contained in Annexure-7 show that respondent No. 4 Kanai Lal Das was holding the post of Executive Engineer on ad hoc basis and even though he was holding the post of Executive Engineer on ad hoc basis, he has been promoted to the post of Superintending Engineer on ad hoc basis. I am unable to allow such promotion. It is a settled law that such promotion for ad hoc to ad hoc cannot be given. The impugned order dated 25.11.95 contained in Annexure-7 vide No. F.6(74)-CEE/88(S)/2, 128-141 shall remain stayed until disposal of the writ petition. I am unable to allow such promotion. It is a settled law that such promotion for ad hoc to ad hoc cannot be given. The impugned order dated 25.11.95 contained in Annexure-7 vide No. F.6(74)-CEE/88(S)/2, 128-141 shall remain stayed until disposal of the writ petition. The respondent No. 4 Kanai Lal Das must be reverted to the post of Executive Engineer forthwith. The misc. petition stands disposed of. 16. At the outset, it may be noticed that this is an order passed in a miscellaneous petition and not on the main writ petition. In the case before the learned Single Judge, the respondent did not file any counter affidavit and the learned Single Judge held that it is well settled law that promotion from ad-hoc to ad-hoc cannot be given. This order cannot be cited as an authority because it did not decide any question of law. However, it would also be pertinent to mention that pursuant to this order, the department issued a memorandum on 21-09-1996 and it was directed that all departments should ensure that all ad-hoc appointments, so far made, should be regularized within three months after observing all official formalities. It was further directed that no employee should be given promotion to the higher grade/post on ad-hoc basis if the concerned employee holds the feeder post on ad-hoc basis. 17. On behalf of the original writ petitioner, reliance has been placed on the memo dated 27-04-1998 sent to the TPSC wherein it has been noted that the appointment and service department has suggested that the appointment is to be regularized on the recommendation of the DPC and in consultation with the TPSC. There was also a recommendation to regularize the ad-hoc appointment of Sri Pranay Saha to the post of Project Officer with retrospective effect from 01-10-1986. In reply to that, the TPSC wrote that as per the Notified Recruitment Rules for the posts of Project Officer and Research Officer, they are to be filled up by direct recruitment. 18. To say the least, the TPSC did not even notice that the posts had to be filled up in the year 1984 or 1986 and the rules came into force only in 1994. These rules could not be made retrospective from 1984. 18. To say the least, the TPSC did not even notice that the posts had to be filled up in the year 1984 or 1986 and the rules came into force only in 1994. These rules could not be made retrospective from 1984. As held by us earlier, a conscious decision had been taken by the department to seek option from those employees who wanted to be absorbed in the DSTE and, therefore, the petitioner was properly absorbed. 19. As far as the promotion on ad-hoc basis is concerned, as noted above, the private respondent was initially promoted as Scientific Officer on 19-02-1990. He was thereafter promoted on ad-hoc basis as Senior Scientific Officer on 22-02-1999. He actually worked for 9(nine) years as Scientific Officer. The Recruitment Rules for Scientific Officer were made only in the year 1994 and on 29-10-2003, in consultation with the TPSC, the private respondent was appointed to the post of Scientific Officer in the DSTE with retrospective effect from 05-07-1994 on regular basis, the date on which the Rules were enforced. Therefore, he stands regularized w.e.f. 05-07-1994, i.e. much prior to his promotion on ad-hoc basis as Senior Scientific Officer on 22-02-1999 which has been regularized w.e.f. 05-07-2001. Here it would be pertinent to mention that according to the original writ petitioner, he only joined the department in the year 2002. He was only absorbed in the DSTE w.e.f. 10-04-2002. How could he have been promoted in the DSTE earlier? The case of the original writ petitioner, if law is to be applied strictly, will be much worse than that of the private respondent. He has been junior to the private respondent throughout. He claimed that the cause of action rose in his favour only when the post of Deputy Director was created. Till that date, he had not challenged the seniority given to the private respondent. He was satisfied with the same and never claimed that he was senior to the private respondent. In all posts, the private respondent was posted much before the petitioner and was drawing higher pay much before him. The petitioner was regularized both as Scientific Officer and as Senior Scientific Officer many years before the writ petition was filed. He was satisfied with the same and never claimed that he was senior to the private respondent. In all posts, the private respondent was posted much before the petitioner and was drawing higher pay much before him. The petitioner was regularized both as Scientific Officer and as Senior Scientific Officer many years before the writ petition was filed. Any irregularity in his appointment as Senior Scientific Officer on ad-hoc basis stood cured after the State, in consultation with the TPSC, gave him appointment on regular basis with retrospective effect. Therefore, we are of the considered view that the petitioner could not claim seniority over and above the private respondent. 20. The law with regard to ad-hoc appointment has been very succinctly laid down in Direct Recruitment Class II Engineering Officers' Association v. State of Maharashtra and others (1990) 2 SCC 715 ). In this case, the Apex Court held that once an incumbent is appointed to a post according to the rules, his seniority has to be counted from the date of his appointment and not from the date of his confirmation. In this case, the Apex Court laid down various guidelines. We are concerned with guideline (B) which reads as follows:-- (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the of his service in accordance with the rules, the period of officiating service will be counted. It is thus obvious that even if the initial appointment is not made following the procedure laid down by the rules, but the person continues uninterruptedly in the said post and then his services are regularized, the period of officiating service has to be counted. In the present case, the private respondent continued to work on ad-hoc basis till his services were regularized in consultation with the TPSC and he must be given benefit of the ad-hoc service rendered by him. 21. We may add that this is a case where the private respondent should not suffer because he has never been at fault. He has obeyed his employer and joined the post which he was directed to join. The challenge to his appointment has been made more than 20 (twenty) years after he joined the DSTE. At this belated stage, the petition is also barred by the principles of delay and laches. He has obeyed his employer and joined the post which he was directed to join. The challenge to his appointment has been made more than 20 (twenty) years after he joined the DSTE. At this belated stage, the petition is also barred by the principles of delay and laches. In this view of the matter, we allow both the appeals, set aside the judgment of the learned Single Judge and consequently, the writ petition filed by Sri Babul Chakraborty shall be deemed to be dismissed. No order as to costs.