Research › Search › Judgment

Tripura High Court · body

2015 DIGILAW 244 (TRI)

Uday Sankar Debbarma v. State of Tripura

2015-05-05

DEEPAK GUPTA, S.C.DAS

body2015
ORDER : Deepak Gupta, J. All these petitions are being disposed of by one judgment since similar questions of fact and law are involved in these cases. 2. WP (C) 292 of 2014 : The 13 petitioners in this case are all diploma holder engineers belonging to Scheduled Tribes engaged as Junior Engineers in Tripura Engineering Service (TES) Grade V (A). They are working in the Public Works Department and all of them joined the post of ‘Junior Engineer’ on or before 01.02.2010. All the petitioners have completed 3 years regular service as Junior Engineer and have also passed the required departmental examination as per the existing rules and were eligible for being promoted to the post of Assistant Engineer prior to 02.02.2013. 3. WP (C) 293 of 2014 : In this case the 17 petitioners are all members of the Scheduled Tribes, who are degree holder engineers and joined the post of Assistant Engineer on or before 15.7.2006. Each of the petitioners has completed 7 years regular service as Assistant Engineer and are working in Grade IV of the Tripura Engineering Service. They have also passed the requisite departmental examination and were eligible for promotion to the post of Executive Engineer in Grade-III prior to 16.7.2013. 4. WP (C) 316 of 214 : The petitioners in this case are also members of the Scheduled Tribes who are degree holder engineers and joined the post of Assistant Engineer on or before 15.7.2006. Each of the petitioners has completed 7 years regular service as Assistant Engineer and are working in Grade IV of the Tripura Engineering Service. They were eligible for promotion to the post of Executive Engineer in Grade-III prior to 16.7.2013 but had not cleared the departmental examination on that date. 5. The services of both sets of petitioners are governed by the Tripura Engineering Service Rules, 1987 as amended from time to time. Under the said TES Rules, 1987 prior to their amendment on 23.5.2014 a Grade V(A) Junior Engineer having 3 years regular service in the grade was eligible to be promoted as Assistant Engineer subject to the condition that he would pass the departmental examination under the Tripura Engineering Officers Training and Departmental Examination(Amendment) Rules, 2008. Under the said TES Rules, 1987 prior to their amendment on 23.5.2014 a Grade V(A) Junior Engineer having 3 years regular service in the grade was eligible to be promoted as Assistant Engineer subject to the condition that he would pass the departmental examination under the Tripura Engineering Officers Training and Departmental Examination(Amendment) Rules, 2008. With regard to the Assistant Engineers, the rule was that Assistant Engineers having 7 years regular service in the grade would be eligible for promotion to the post of Executive Engineer subject to passing the departmental examination under the Tripura Engineering Officers Training and Departmental Examination(Amendment) Rules, 2008. On 23.5.2014 the State of Tripura amended the TES Rules and in respect of Junior Engineers, the syllabus of the departmental examination was changed and by this amendment, the Junior Engineers were required to pass Accounts Paper and Simple Rules Paper for the purpose of becoming eligible for promotion to TES Gr.-IV. With regard to Assistant Engineers who are to be considered for promotion to the post of Executive Engineer the rules were also amended and now the departmental examination is also to consist of a paper in Law and Arbitration which paper was required to be cleared by these Assistant Engineers for being eligible for promotion to the post of Executive Engineer i.e. TES Gr.-III. 6. The main grievance of the petitioners is that the amended rules cannot be enforced with retrospective effect and the posts which were lying vacant prior to the amendment of the rules on 23.5.2014 should be filled in on the basis of the un-amended rules. On behalf of the State it is contended that right from the year 2012 the State was contemplating the amendment of the rules and, therefore, a conscious decision was taken not to fill up the posts because the employer felt that the officers at the level of Assistant Engineer must have some knowledge of ‘Accounts and Simple Rules’ and the employees of the level Executive Engineer must have some knowledge of ‘Law of Contact and Arbitration’. 7. There can be no quarrel with the proposition that it is for the State to lay down the conditions which a candidate must fulfill. 7. There can be no quarrel with the proposition that it is for the State to lay down the conditions which a candidate must fulfill. The sole issue is, whether the candidates who were duly qualified prior to the amendment of the rules and were eligible for promotion and there were vacant posts available prior to the amendment of the rules can be denied their right to be considered for promotion? Will the amended rules apply to those posts or not? In our considered view, though the right for promotion is not a fundamental right, the right to be considered for promotion is a fundamental right. It is by now well settled law that the rules cannot be amended retrospectively with a view to take away the rights of the parties. 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 filled 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: ‘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. 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 view 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. [State of Rajasthan v. R Dayal, (1997) 10 SCC 419 , SCC para 8].” 10. The law laid down by the Apex Court is clear that wherever the rules or regulations are amended they will have prospective effect unless the framers of the law have specifically made the rules retrospective in operation. Ms. N Guha may be right that the amendment of the rules was under contemplation for 2 years and the record produced by the State does support the view. However, when the rules were amended, the State did not make them retrospectively applicable from the year 2012. It is true that the State did not conduct any departmental examination during this period but that does not mean that the rules are retrospective. While making the amendment the State could have made the rules retrospective from 2012 and could have justified the retrospective operation on the ground that from that day onward no promotion was made because amendment of the rules was under the contemplation of the State. However, as pointed out above, the rules which were finally framed do not in any manner indicate that they have been made retrospective in operation. 11. However, as pointed out above, the rules which were finally framed do not in any manner indicate that they have been made retrospective in operation. 11. The amended notification dated 23rd May, 2014 reads as follows : “No.F.6(14)-PWD(E)/93 GOVERNMENT OF TRIPURA PBLIC WORKS DEPARTMENT Dated, Agartala, the 23rd May, 2014 NOTIFICATION In exercise of the powers conferred by the provision article 309 of the Constitution of India and all other powers enabling him in this behalf, the Governor, in consultation with the public Service Commission, is pleased to make the following rules namely, -- 1. Short title & Commencement i) These rules may be called the ‘Tripura Engineering Service (TES)(6th Amendment, 214) Rules 1987. ii) They all come into force from the date of their publication in the Official Gazette. The following are added in Rule – 21 d) i) Diploma holders Gr-V (B) and above have to pass Accounts and Simple Rule Papers to get promotion to Gr-V and above. ii) Degree Engineers Gr-V (A) have to pass Accounts and Simple Rules papers to get promotion to Gr-IV and shall have to pass Law & Arbitration Papers to get promotion to Gr-III and above. e) Degree Engineers who are appointed directly in Gr-IV also have to pass the Departmental Examination as specified for Grade-V(A) Degree holder to get promotion to the next higher grade, if not yet passed. f) To get promotion to the next higher grade the existing Engineering officer of TES Gr-V, Gr-IV & Gr-III have to pass their specified papers/subject viz. accounts, Simple Rules and Law & Arbitration, if they had not passed earlier in any grade. g) Engineering officers who have attained the age of 55 years and above are exempted from appearing and passing departmental examinations to get promotion to next higher grades. By order of the Governor, (S K Nandi) Deputy Secretary, PWD” The State has taken a conscious decision that the rules shall come into force from the date of publication in the official gazette. As such the rules cannot be applied retrospectively. 12. By order of the Governor, (S K Nandi) Deputy Secretary, PWD” The State has taken a conscious decision that the rules shall come into force from the date of publication in the official gazette. As such the rules cannot be applied retrospectively. 12. The petitioners in both the writ petitions fulfilled all the eligible qualifications as per the unamended rules and therefore, if there are posts of Assistant Engineer or Executive Engineer respectively vacant prior to 23rd May, 2014 they will have to be filled in as per the rules and the petitioners shall be considered for such posts without insisting that they should clear the fresh departmental examination. However, if the petitioners in WP (C) 292 of 2014 and WP (C) 293 of 2014 have to be considered for posts which fell vacant after 23rd May, 2014 then they will only be considered if they are eligible under the amended rules. As far as WP (C) 316 of 2014 is concerned, we find no merit in the same. The petitioners in the said case are also Scheduled Tribe candidates working as Assistant Engineers. They have completed 7 years service in the cadre and were eligible for being promoted as Assistant Engineers. However, they had not qualified the departmental examination even under the unamended rules. Their only grievance is that no examination was conducted after 2012 and if such examination had been conducted they would have qualified. 13. We cannot accept a hypothetical argument. The petitioners were in service right from 2006 or 2007 onwards. Various departmental examinations were held up to May, 2012. The petitioners either did not appear or did not qualify. Merely because departmental examinations were not held thereafter is no ground to come to the conclusion that they were eligible. It cannot be said with certainty that they would have definitely qualified the departmental examination. Some of the petitioners have qualified the departmental examination under the amended rules and they would now be eligible for promotion. They, however, cannot be considered for promotion by treating them to be eligible prior to the date of passing of the examination. 14. In view of the aforesaid discussion, the first two writ petitions [WP(C) 292 of 2014 and WP(C) 293 of 2014] are allowed and as far as the third petition [WP(C) 316 of 2014] is concerned that is dismissed. No order as to costs.