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Tripura High Court · body

2016 DIGILAW 55 (TRI)

Biplabendu Roy v. State of Tripura

2016-02-26

S.TALAPATRA

body2016
ORDER : 1. By means of this writ petition, the petitioner has urged this Court for directing the respondents to absorb him in the borrowing department, Department of Finance and to extend him all financial benefits for such absorption. The petitioner has also urged to restrain the respondents from filling up the post of Law Officer under the Finance Department by a writ of prohibition. 2. The facts are mostly admitted. The petitioner while working as the Senior Mechanic in the loaning department, the Tripura Road Transport Corporation, the TRTC in short, was deputed to the Finance Department by the communication under No.2(24)TRTC/DMB (T)/Vol-II/9293/312 dated 23.10.2003. In terms of the said communicated dated 23.10.2003, the petitioner joined in the office of Commissioner of Taxes under the Finance Department in the forenoon of 01.11.2003. The petitioner had been discharging his duties to the entire satisfaction of the authority. As corollary, by the office order dated 29.11.2004, Annexure-P/8 to the writ petition, the petitioner was asked to function as the Nodal Officer (Legal) in additional to his normal duties on a purely temporary basis until further order. For such additional assignment, a monthly honorium of Rs.200/- be entitled to the petitioner. From 29.11.2004 onwards, the petitioner had been working as the Nodal Officer (Legal) in the office of the Commissioner of Taxes and was drawing his pay and allowances at the rate which he would have been received as the Senior Mechanic in the TRTC. However, he used to draw Rs.200/- as per order for discharging responsibility of the higher post. The petitioner has been nourishing general expectation of being absorbed in the borrowing department. 3. In the year 2007, there was a proposal for creating a post of Officer on Special Duty (OSD), but no such post was ever created at least no record has been produced to show that such post was ever created. As such, there had been no occasion to consider absorption of the petitioner against the post of OSD. The petitioner has referred one note of the Commissioner of Taxes dated 08.11.2006, wherefrom a proposal for upgradation and the perspective of the said proposal can be gathered: "However, considering the work volume and gravity of the situation, the Legal Cell of this establishment need upgradation so that the officer concerned may deal with Advocate and Law Department in befitting manner. A law graduate should look after the section. On examination of record of Shri Roy, it appears that he possesses BSc, LLB Degrees. Apart from that he is going to complete Post Graduate Degree in English from IGNOU. Over and above to this, he has acquired sufficient experience through the works rendered by him in the Legal Cell of the department. Due to the commitment, sincerity, legal knowledge his position may be upgraded so that he may deal all cases in a befitting manner. Therefore, in view of the above, it is proposed that he may be appointed as OSD (Law) in the Scale of Rs. 775-15-790-16-950-20-1130/- in the establishment." 4. It appears from the records as produced that no such post was ever created. However, by the order under No.F.IV8(159)TAX/03(P)/7379-90 dated 08.08.2014, Annexure-P/10 to the writ petition, the respondent No.2 had designated the petitioner as in-charge Law Officer/Nodal Officer. However, in the order dated 08.08.2014, it has been noted that the re-designation is purely on a temporary basis and shall be in force until the finalisation of the recruitment of Law Officer. The petitioner at the time of filing the writ petition on 23.03.2015 had been working as the In-charge Law Officer. It is to be noted that the Managing Director of the TRTC had sought repatriation of the petitioner by his letter dated 09.07.2012, Annexure-P/12 to the writ petition, as the TRTC was suffering from shortage of staffs. But the Commissioner of Taxes did not release the petitioner. 5. There is no dispute that the petitioner was granted the special honorarium of Rs.200/-per month by virtue of the memorandum dated 29.11.2004, Annexure-P/8 to the writ petition. The petitioner made representation to the Commissioner of Taxes on 17.07.2012, Annexure-P/15 for appointing him as the OSD (Law). But it did not bring any positive result. Thereafter, on 13.10.2014 by another representation dated 13.10.2014, Annexure-P/16 to the writ petition, the petitioner claimed the salary of the Law Officer ‘as a special case’ since he had been working and holding the post of the Law Officer and discharging all duties attached to the said post. 6. But it did not bring any positive result. Thereafter, on 13.10.2014 by another representation dated 13.10.2014, Annexure-P/16 to the writ petition, the petitioner claimed the salary of the Law Officer ‘as a special case’ since he had been working and holding the post of the Law Officer and discharging all duties attached to the said post. 6. The respondents No.1 and 2 admitted all the factual assertions made by the petitioner but specifically denied that the petitioner is not entitled to the pay and allowances attached to the post of Law Officer which has been created in the year 2013 by the notification under No. F.VIITAX/CON/99 dated 07.06.2013 and the recruitment rules for the said post was published by the notification under No.F.IV3(3)TAX/86(PI) dated 09.10.2014. In the said recruitment rules, it has been provided that the post shall be filled up by direct recruitment, failing which by deputation/transfer from analogous post. The essential qualifications for recruitment in the said post had been prescribed is under:- “(i) Degree in Law from a recognised University. (ii) 5(five) years experience as legal practitioner in any Court of Law.” 7. The respondents have stated in Para-22 of the counter affidavit as under: “It is a fact that due to volume of works and shortage of staffs in the establishment of the respondent No.2, the petitioner was not released to his parent organisation i.e. Office of the respondent No.3. It is stated that the service of the petitioner as in-charge Law Officer is required in the office of the respondent No.2 until the finalisation of the recruitment to the post of Law Officer. It does not mean that the petitioner has the right to be absorbed to the post of Law Officer in the Office of the respondent No.2. As per Recruitment Rules, the post of 'Law Officer' is to be filled up by direct recruitment, failing which by deputation/transfer from analogous post. Hence, the averment made by the petitioner in this para of this writ petition is baseless." It has been further asserted that the petitioner was engaged as the in-charge Law Officer as a temporary measure till regular appointment to the post of Law Officer is made. 8. Hence, the averment made by the petitioner in this para of this writ petition is baseless." It has been further asserted that the petitioner was engaged as the in-charge Law Officer as a temporary measure till regular appointment to the post of Law Officer is made. 8. The respondents has admitted that one Anil Chakraborty, who was also brought on deputation in the Office of the Commissioner of Taxes was absorbed and appointed as the Accounts Officer by the Notification dated 11.11.1999, Annexure-R/14 to the counter affidavit. The respondents have stated that due selection process was followed for borrowing said Anil Chakraborty on deputation by the notification dated 09.12.1996. The same procedure however was not followed in the case of the petitioner. Moreover, there is no arbitrariness while exercising the discretion in absorbing said Anil Chandra Chakraborty. 9. Mr. A. Bhowmik, learned counsel appearing for the petitioner has emphatically submitted that the petitioner’s performance as the Nodal Officer (Legal) or as the in-charge Law Officer was adequately satisfactory and beyond any blemish. He has earned appreciation and recommendation from the Commissioner of Taxes as would be apparent from the appreciation letters dated 02.11.2012 and 13.01.2014, Annexure-P/5 and P/6 respectively to the writ petition and the certificate dated 29.04.2014, Annexure-P/7 to the writ petition. Even in the counter affidavit, the respondents No.1 and 2 did not state anything adverse against the petitioner, save and except, the technical legal plea that the petitioner cannot be absorbed in the post of the Law Officer in the office of the Commissioner of Taxes and Excise under the Finance Department, in terms of the recruitment rules. He has further submitted that even the Law Department in view of the litigation policy advised the Finance Department to absorb him in a suitable post equivalent to the post of ‘Head Clerk’. 10. In this regard, Mr. J. Majumder, learned counsel appearing for the respondent No.1 has produced the Finance Department’s File under No.F.25(7)FIN(G)/2015 wherein Note No.40, the following observation has been made: “It is also mentioned that the views offered by the Law Department does not appear to be in order considering the fact that the matter is already under subjudice and pending final outcome of the Hon’ble Court order, the Law Department should not offer such view.” The said view was approved by the Principal Secretary, Finance Department, Govt. of Tripura. 11. Mr. of Tripura. 11. Mr. Bhowmik, learned counsel has relied on a decision of the apex court in Rameshwar Prasad vs. Managing Director, U.P. Rajkiya Nirman Nigam Limited and others, reported in (1999) 8 SCC 381 to contend that the respondents No.1 and 2 should have absorbed the petitioner as the Law Officer. In Rameshwar Prasad vs. Managing Director, U.P. Rajkiya Nirman Nigam Limited and others, the apex court has observed as under: “17. In our view, it is true that whether the deputationists should be absorbed in service or not is a policy matter, but at the same time, once the policy is accepted and rules are framed for such absorption, before rejecting the application, there must be justifiable reasons. Respondent 1 cannot act arbitrarily by picking and choosing the deputationists for absorption. The power of absorption, no doubt, is discretionary but is coupled with the duty not to act arbitrarily, or at the whim or caprice of any individual. In the present case, as stated earlier, the General Manager (N.E.Z.) specifically pointed out as early as in the year 1988 that the appellant's service record was excellent; he has useful in service and appropriate order of his absorption may be passed. His application for absorption was within three years as provided in Rule 5. There is nothing on record to indicate that for any reason whatsoever, he was not required or fit to be absorbed or the power under Rule 5(1) of the U.P. Absorption of Government Servants in Public Undertakings Rules, 1984 was not required to be exercised in his favour. Interim order dated 17.7.1991 passed by the High Court would not be applicable in the case of appellant because his case was considered for absorption in the year 1988. Further on completion of five years on 19.11.1990 he could not have ordinarily been continued on deputation in the service of the Nigam. It is apparent that he was absorbed from 19.11.1990 because from that date his deputation allowance was also discontinued. If he was to be continued on deputation, there was no reason for nonpayment of the deputation allowance. So on the basis of statutory rules as well as the policy, the appellant stand absorbed in the service of Nigam.” 12. It is apparent that he was absorbed from 19.11.1990 because from that date his deputation allowance was also discontinued. If he was to be continued on deputation, there was no reason for nonpayment of the deputation allowance. So on the basis of statutory rules as well as the policy, the appellant stand absorbed in the service of Nigam.” 12. The respondent No.3, by filing a counter affidavit, has categorically stated that if the petitioner is absorbed by the respondents No.1 and 2, they have no objection whatsoever. 13. From the contentions as projected by the learned counsel for the parties, the question that falls for consideration is that whether the petitioner can claim absorption on the basis of long period of deputation as a matter of right. There is no dispute that the petitioner has been discharging his duties without any blemish. Even at one point of time a proposal was initiated by the Commissioner of Taxes for appointing the petitioner as Law Officer in the Scale of Pay of Rs. 775-1130/- (pre revised). But that proposal did not receive approval from the competent authority. When a post of Law Officer was created, the petitioner was designated as the in-charge Law Officer but he was not absorbed at that time, even though the petitioner approached the respondents for his absorption in the post of OSD (Law) by filing a representation on 17.07.2012. Even the petitioner’s prayer for pay and allowances attached to the post of Law Officer was not acceded to. By the representation dated 13.10.2014, Annexure-P/16 to the writ petition, the petitioner urged the respondents No.1 and 2 to absorb him in their organisation. It is an admitted position that there is no Government policy or rule in force for absorption of the deputationist. As a result, the absorption takes place by exercise of discretion. It is a well laid principle that whether a deputationist should be absorbed or not is a matter of policy. But at the same time, once the policy is accepted and rules are framed for such absorption, before rejecting the application there must be justifiable reasons. The borrowing department cannot arbitrarily act by means of ‘picking and choosing’. The power of absorption is no doubt discretionary but is coupled with duty not to act arbitrarily or at the whim or caprice. The borrowing department cannot arbitrarily act by means of ‘picking and choosing’. The power of absorption is no doubt discretionary but is coupled with duty not to act arbitrarily or at the whim or caprice. It cannot be denied that the petitioner after serving the respondent No.1 for long 13(thirteen) years on deputation with record of satisfactory performance had been legitimately expecting that he would be absorbed in the same manner and method as happened in the case of Anil Chandra Chakraborty. But that did not happen and the petitioner has retired on 31.01.2016. It is also not in dispute that by the notification dated 07.06.2013, the post of Law Officer in PBIV (13575-37000/- with GP Rs. 4500/-) was created with mode of recruitment as stated. The respondents No.1 and 2 have not treated the petitioner on deputation against the post of Law Officer. However, the petitioner was made in-charge Law Officer. According to the recruitment rules, the petitioner cannot be appointed as the Law Officer inasmuch he does not have the essential qualification of 5 years experience as legal practitioner in any court of law even though the petitioner has the qualification of Bachelor of Science (BSc) and Bachelor of Arts (BA) with Post Graduation Diploma in Mass Communication and Journalism. As such, this Court cannot mandate the respondents No.1 and 2 to absorb the petitioner as the Law Officer with an anterior date. However, if the respondents No.1 and 2 on appreciation of the service, rendered by the petitioner, deem it fit to absorb the petitioner with an anterior date in the post of the Law Officer on relaxing 5 years experience as legal practitioner in any court of law or in any other post from an anterior date, they may do so by exercising their discretion. Power of relaxation of any of the provisions of the recruitment rules as published by the notification dated 09.10.2014, Annexure-9 to the writ petition, has been provided in Rule 6 to the State Government. The petitioner may file a representation with a copy of this order before the appropriate authority for such consideration within a period of 30 days from today and the respondents No.1 and 2 may consider the representation within a reasonable time. 14. With this observation, this writ petition stands disposed of. There shall be no order as to costs. Records as produced by Mr. 14. With this observation, this writ petition stands disposed of. There shall be no order as to costs. Records as produced by Mr. J. Majumder, learned counsel be returned under the sealed cover.