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Tripura High Court · body

2016 DIGILAW 87 (TRI)

Soma Paul v. State of Tripura

2016-03-31

S.TALAPATRA

body2016
ORDER : By means of these writ petitions, being W.P(C) No.488 of 2015 (Smt. Soma Pal vs. The State of Tripura), W.P(C) No.489 of 2015 (Smt. Sarmistha Majumder vs. The State of Tripura) and being W.P(C) No.490 of 2015 (Smt. Chandrani Chakraborty vs. The State of Tripura), the petitioners who were appointed to the post of the Senior Instructor, Group-C (Non-Gazetted) in the Tripura Institute of Technology, the TIT in short, under the Higher Education Department, formerly known as the Polytechnic Institute have urged for direction to consider them for promotion to the post of Foreman Instructor preceded by a declaration that the petitioners are eligible for such consideration. Alternatively, the petitioners have urged for direction on the respondents to ‘create a promotional avenue for the further post’. Sans a little variation somewhere in the fact, the core question involved, these writ petitions are identical and hence, clubbed together for disposal by a common judgment. 2. There is no dispute that the writ petitioner in W.P.(C) No. 488 of 2015, namely Smt. Soma Pal and the writ petitioner in W.P.(C) No.490 for 2015, namely Smt. Chandrani Chakraborty were appointed regularly in the post of Senior Instructor (Chemistry), Group-C w.e.f. 13.12.2007 by the memorandum No.F.7(198)DHE/NG/2007/(L) dated 24.12.2007. Those petitioners were entertained against the posts created in the fixed pay, keeping the regular scale of pay in abeyance as per the policy of the Government but their appointments are substantive in nature for all purposes. It is to be noted that both the writ petitioners in W.P.(C) No.488 of 2015 and W.P.(C) No.490 of 2015 were engaged initially in the said post of Senior Instructor (Chemistry) on contract basis under the terms as laid in the respective order since 18.10.2004, AnnexureP/3 to the writ petitions of those petitioners. By the communication under No.F.7(198)DHE/NG/96(L) dated 27.09.2007, AnnexureP/6 to the writ petitions of those petitioners, the Director of Higher Education, Government of Tripura had apprised the Principal-in-Charge, TIT as follows: “Subject – Regularisation of service of the Contractual Workers of erstwhile PTI now TIT reg. Sir, It has been decided by the Government that the services of the eligible Contractual Workers working at P.T.I. (now TIT) on contract basis in different branches may be regularised as per existing rules. Also decided the age relaxation may also be considered in respect of the workers those who were age barred to appear for the interview. Sir, It has been decided by the Government that the services of the eligible Contractual Workers working at P.T.I. (now TIT) on contract basis in different branches may be regularised as per existing rules. Also decided the age relaxation may also be considered in respect of the workers those who were age barred to appear for the interview. It is therefore, requested to kindly ask the eligible Contractual Workers as per list attached to appear before the Interview Board scheduled to be held on 15th October, 2007 at 11 A.M. at Government Music College, Agartala with all original testimonials.” The memorandum No.F.7(198)DHE/NG/2007/L dated 24.12.2007 is the outcome of the said process. Even though the writ petitioner in W.P.(C) No.489 of 2015 was initially engaged as the Instructor (MOPM) on contract basis by the order dated 04.11.2004, AnnexureP/4 to her writ petition, but she was also regularised by the said memorandum dated 24.12.2007 as the Senior Instructor, Group-C w.e.f. 13.12.2007 like the other petitioners against the post created on fixed pay basis. From the memorandum under No.F.7(207)DHE/NG/2012 dated 12.03.2013, all the writ petitioners were allowed the regular scale of pay, PB-2 Rs.5310-24000/with the Grade Pay of Rs.2400/along with other allowances w.e.f. 13.12.2012 as those petitioners completed five years of service on 12.12.2012 from their substantive appointment on 13.12.2007 inasmuch as they were entertained against the post carrying fixed pay by keeping the regular pay scale in abeyance. There is no dispute that all the petitioners were appointed substantively in the post of Senior Instructor, Group-C (Non- Gazetted). 3. From the recruitment rules for Senior Instructor, Polytechnic Institute published by the notification No.F.1(602)DSE/Estt.(G)/2001 dated 06.10.2001 it would be apparent that there is another category of Senior Instructor, borne in Group-B gazetted with higher scale of pay Rs.6500-12300 (pre-revised). For recruitment to the said category of Senior Instructors, the following educational qualification and experience are essentially required: “First Class Diploma in appropriate branch of Engineering with 2(two) years professional and/or teaching experience.” Admittedly, the petitioners do not have those essential qualifications. From the recruitment rules for the Senior Instructor, Polytechnic Institute, as published by the notification No. F.7(189)/DHE/NG/2005 dated 14.12.2005, the following provisions for purpose of recruitment of Senior Instructor, Polytechnic Institute, Group-C (Non-Gazetted) have been accommodated ‘in suppression of existing recruitment rules’ Sl. No. Name of the Post Senior Instructor, Polytechnic Institute 7. Educational and other qualifications required for direct recruitment. No. Name of the Post Senior Instructor, Polytechnic Institute 7. Educational and other qualifications required for direct recruitment. For Science Department (i) B.Sc. (Hon) Pure Science. (ii) Knowledge of Bengali or Kakbarak. For Work shop (i) Madhyamik or equivalent examination passed. (ii) Diploma in appropriate branch of Engineering/2 years certificate course in the appropriate branch from any recognize Institution/Board. (c) Knowledge of Bengali or Kakbarak. It transpires clearly that the petitioners were appointed by the memorandum dated 24.12.2007 as the Senior Instructor, Group-C (Non-Gazetted) in terms of the recruitment rules published by the notification dated 14.12.2005, Annexure-P/11 to the writ petition being W.P.(C) No.488 of 2015. 4. Having regard to the prayer made in these writ petitions, it would be apposite to deal with the recruitment rules for appointment of the Foreman Instructor, Group-A Gazetted, borne in the scale of pay of Rs.7800-15100/(Pre-revised) subject to revision from time to time, which has been published by the notification No.F.1.(604)/DHE/Estt.(G)/2001 dated 28.11.2001, Annexure-P/13 to the writ petition being W.P.(C) No.488 of 2015. In terms of the said recruitment rules, the recruitment to the post of Foreman Instructor is to be made by promotion, failing which by direct recruitment. The essential and other qualifications as required for the direct recruitment are also equally applicable in cases of promotion inasmuch as Rule 8, 9,10 and 11 of the said recruitment rules provide as under: 8. Whether age and Educational qualification prescribed for the direct recruitment will apply in case of promotees. Age – No Qualifications & Experience – Yes 9. Whether selection post or Non selection post Selection Post 10. Period of probation, if any 2(two) years. 11. In case of recruitment by promotion/ deputation/ transfer grade from which promotion/deputation/transfer is to be made Promotion from the post of Senior Instructor, Polytechnic Institute having at least 5 years experience for the Degree holders and at least 8 years experience for the 1st Class Diploma holders in the post. [Emphasis added] For further elucidation, Rule 7 of the said recruitment rules which prescribes educational and other qualification required for the direct recruitment is as well, extracted hereunder: 7. Educational and other qualification required for direct recruitment (i) Bachelor’s    Degree or 1st Class Diploma in appropriate branch of Engineering. (ii) 5 years shop floor experience for Degree holders and 8 years shop floor experience for Diploma holders. Educational and other qualification required for direct recruitment (i) Bachelor’s    Degree or 1st Class Diploma in appropriate branch of Engineering. (ii) 5 years shop floor experience for Degree holders and 8 years shop floor experience for Diploma holders. There are no other avenues for promotion to the post of Foreman Instructor and as such, it is a shut case for the petitioners as they lack the basic educational qualification and experience as required for promotion to the post of the Foreman Instructor. 5. In this perspective, Mr. Somik Deb, learned counsel appearing for the petitioners has focused his submission mainly on the alternative prayer that has been urged by the petitioners. Mr. Deb, learned counsel has contended that the recruitment rules published by the notification dated 14.12.2005 has repealed the earlier recruitment rules published by the notification dated 06.10.2001. For purpose of repealing in the preamble, it has been unambiguously observed that the said recruitment rules is being given effect to ‘in suppression of the existing rules for the post mentioned herein’. According to Mr. Deb, learned counsel, that clause had the effect of repeal of the recruitment rules dated 06.10.2001 without any saving of any part thereof. He has further submitted having referred to the counter affidavit filed by the respondents, that from the notification under No.F.6(1)FIN(PC)2009 dated 05.05.2009, Annexure-R/3 to the writ petition, being W.P.(C) No.488 of 2015, it would be clear that the post of Senior Instructor in the Polytechnic Institute carrying the pay scale of Rs.5300-10300/has been proposed to be renamed as Instructor by amending the concerned recruitment rules. He has referred to the following paragraph of the said notification dated 05.05.2009: “14. Reevaluation and restructuring of certain posts: (1) Redesignation of the post of Sr.Instructor : With a view to maintain difference, the post of Sr. Instructor (Non-Gazetted) in the Polytechnic Institute (now TIT) carrying existing pay scale of Rs.5000-10300/shall be renamed as Instructor by amending the concerned RR. The RR of the post of Sr. Instructor (Group-B Gazetted) in the Polytechnic Institute (now TIT) carrying pre revised pay scale of Rs.6500-12300/ shall, however continue to retain the present designation.” [Emphasis added] According to Mr. Deb, learned counsel, in furtherance of the said notification dated 05.05.2009 another set of recruitment rules for the post of Instructor was published by the notification dated 21.05.2010 under No.F.7(240)DHE/NG/2010 but that notification was not given any retrospective operation. Deb, learned counsel, in furtherance of the said notification dated 05.05.2009 another set of recruitment rules for the post of Instructor was published by the notification dated 21.05.2010 under No.F.7(240)DHE/NG/2010 but that notification was not given any retrospective operation. As such, the petitioners cannot be considered holding the post of Instructors in view of the recruitment rules published by the notification dated 21.05.2010. He has further submitted that the recruitment rules published by the notification dated 21.05.2010 will have no manner of application on the condition of service of the petitioners. On such basis, Mr. Deb, learned counsel has contended that the petitioners do not have any scope of promotion. Finally, Mr. Deb, learned counsel has produced another set of recruitment rules for the post of Instructor, Diploma Level Technical Institutions in Tripura, Group-B Gazetted, borne in Pay Band-3: 9500-17000/with G.P. Rs.3500 subject to revision from time to time as published by the notification dated 11.04.2011 under No.F.1(602)DHE/Estt.(G)/2010. As per the said recruitment rules, the method of recruitments for the post of said Sr. Instructor is by promotion, failing which by direct recruitment. In Rules 7,8,9 and 10, the following has been observed: 7. Educational and other qualifications required for direct recruitment Essential Qualifications (i) Class Diploma of 3(three) years duration in appropriate branch of Engineering from an AICTE recognized Institute (ii) 5 years professional or teaching experience. Desirable : (i) Knowledge in Bengali or Kokbarak. 8. Whether age and educational qualifications prescribed for the direct recruitment will apply in case of promotees. Age No Qualification – No. 9. Whether Selection post or Non-Selection post Selection Post. 10. Period of probation, if any 2(two) years. [Emphasis added] Mr. Deb, learned counsel has submitted that since the petitioners cannot be deemed holding the post of Instructor in Diploma Level Technical Institute of Tripura having Diploma of two years certificate course in the appropriate branch from the recognized University/Board with five years experience in the grade they would derive no benefit out of the said recruitment rules published by the notification dated 11.04.2011. Mr. Deb, learned counsel has further submitted that the petitioners are entitled to urge for providing at least two opportunities of promotion to the post of the higher grades. Mr. Deb, learned counsel has further submitted that the petitioners are entitled to urge for providing at least two opportunities of promotion to the post of the higher grades. To buttress his contention, he has relied on a few decisions of the apex court in Council of Scientific and Industrial Research and another vs. K.G.S. Bhatt and another, reported in (1989) 4 SCC 635 , where the apex court has held that every management must provide realistic opportunities for promising employees to move upward, approvingly quoting from the book called Personal Management by Dr. Udai Pareek. It has been observed in that book that the organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, ineffectual performance among both non-managerial employees and their supervisors. It has been further observed by the apex court that there cannot be, much less any career planning, man power development, management development etc. which is not related to a system of promotion. 6. In Dr. Ms. O.ZHussain vs. Union of India, reported in 1990 (Supp.) SCC 688, the apex court has further observed in Para 7 as under: “7. This Court, has on more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed offices in other ministries would have the benefit of promotion, the non-medical ‘A’ Group scientist in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for the ‘A’ category scientists in the non-medical wing of Directorate.” 7. Mr. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for the ‘A’ category scientists in the non-medical wing of Directorate.” 7. Mr. Deb, learned counsel has appropriately referred to State of Tripura and others vs. K.K. Roy, reported in (2004) 9 SCC 65 , where the apex court has observed as under: “4. Indisputably, the post of Law Officer-cum-Draftsman is a single cadre post. It is also undisputed that there does not exist any promotional avenue therefor. The respondent is holder of a Master Degree as also a Degree in Law. He was appointed in the year 1982. If the contention of the appellant is to be accepted, the respondent would be left without being promoted throughout his career. In almost an identical situation, a Bench of this Court in Council of Scientific and Industrial Research and Another v. K.G.S. Bhatt and Another : (1989) 4 SCC 635 ] held : "...It is often said and indeed, adroitly, an organisation, public or private does not `hire a hand' but engages or employs a whole man. The person is recruited by an organisation not just for a job, but for a whole career, One must, therefore, be given opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. (See : Principles of Personnel Management by Flipo Edwin B., 4th edn., p. 246). Every management must provide realistic opportunities for promising employees to move upward. "The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors." (See : Personnel Management by Dr. Udai Pareek, p. 277). There cannot be any modern management much less any career planning, manpower development, management development, etc., which is not related to a system of promotions..." 5. The matter came up for consideration again in Dr. Ms. Udai Pareek, p. 277). There cannot be any modern management much less any career planning, manpower development, management development, etc., which is not related to a system of promotions..." 5. The matter came up for consideration again in Dr. Ms. O.Z. Hussain v. Union of India [1990 (Supp) SCC 688] wherein this Court in no uncertain terms laid down the law stating : "....Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other ministries would have the benefit of promotion, the non-medical `A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers....." 6. It is not a case where there existed an avenue for promotion. It is also not a case where the State intended to make amendments in the promotional policy. The appellant being a State within the meaning of Article 12 of the Constitution should have created promotional avenues for the respondent having regard to its constitutional obligations adumbrated in Articles 14 and 16 of the Constitution of India. Despite its constitutional obligations, the State cannot take a stand that as the respondent herein accepted the terms and conditions of the offer of appointment knowing fully well that there was no avenue of appointment, he cannot resile therefrom. It is not a case where the principles of estoppel or waiver should be applied having regard to the constitutional functions of the State. It is not disputed that the other States in India Union of India having regard to the recommendations made in this behalf by the Pay Commission introduced the scheme of Assured Career Promotion in terms whereof the incumbent of a post if not promoted within a period of 12 years is granted one higher scale of pay and another upon completion of 24 years if in the meanwhile he had not been promoted despite existence of promotional avenues. When questioned, the learned counsel appearing on behalf of the appellant, even could not point out that the State of Tripura has introduced such a scheme. When questioned, the learned counsel appearing on behalf of the appellant, even could not point out that the State of Tripura has introduced such a scheme. We wonder as to why such a scheme was not introduced by the Appellant like the other States in India, and what impeded it from doing so. Promotion being a condition of service and having regard to the requirements thereof as has been pointed out by this Court in the decisions referred to hereinbefore, it was expected that the Appellant should have followed the said principle.” [Emphasis added] 8. In Food Corporation of India and others vs. Parashotam Das Bansal and others, reported in (2008) 5 SCC 100 , the apex court has restated the law by holding that if there is no channel of promotion in respect of a particular group of officers resulting in stagnation over the years, the court although may not issue any direction as to in which manner a scheme should be formulated or by reason thereof, interfere with the operation of existing channel of promotion to the officers working in different departments and officer of the Government but the jurisdiction to issue direction to make a scheme cannot be denied to a superior court of the country [Para 13]. The apex court in Food Corporation of India vs. Parashotam Das Bansal has significantly added in Para 21 as under: 21. We fail to understand how the cadre of Medical Officers would be important, as like the respondents, they also do not contribute towards the main functions of the appellant. Such a plea even otherwise is wholly untenable. An employee is an employee. How the employees would be structured is undoubtedly within the realm of the statutory authority but by reason thereof, it cannot tinker with their essential fundamental right. 9. Mr. Deb, learned counsel has also referred a decision of the apex court in Hukum Chand Gupta vs. Director General, ICAR & others, reported in (2012) 12 SCC 666 , where the apex court has restated the law as above. 10. Mr. S. Chakraborty, learned Addl. G.A. appearing for the respondents has seriously contested the interpretation as regards the complete or partial repeal of recruitment rules for Sr. 10. Mr. S. Chakraborty, learned Addl. G.A. appearing for the respondents has seriously contested the interpretation as regards the complete or partial repeal of recruitment rules for Sr. Instructors, Group-B gazetted, borne in the scale of pay of Rs.6500-12300/(pre-revised), Polytechnic Institute, published by the notification No.F.1(602)DHE/Estt.(G)/2001 dated 06.10.2001, Annexure-R/2 to the counter affidavits, by operation of the recruitment rules for the post of Sr. Instructor, Group-C (Non-gazetted), borne in the scale of pay of Rs.5000-10300/(pre-revised), Polytechnic Institute, as published by the notification No.F.7(189)DHE/NG/2005 dated 14.12.2005. Mr. Chakraborty, learned Addl. G.A has categorically stated that the repealing effect as embodied in the preamble of the said notification dated 14.12.2005 is limited to the post mentioned in the said recruitment rules by way of the schedule. The said recruitment rules published by the notification dated 14.12.2005 does not include a post of Sr. Instructor, Group-B gazetted, Polytechnic Institute. Therefore, the recruitment rules as published by the notification dated 06.10.2001 has not been repealed either by implication or by the repealing clause as embodied in the preamble of the recruitment rules published by the notification dated 14.12.2005. He has further submitted that the recruitment rules published by the notification dated 21.05.2010, Annexure-R/4 to the counter affidavits has been so framed in terms of the notification dated 05.05.2009 to rename of post of Sr. Instructor, non gazetted in the Polytechnic Institute (now TIT) carrying pay scale of Rs.5000-10300/. However, he has admitted that it would have been better if a clear clause in this regard was embodied in the notification dated 21.05.2010 or giving the said recruitment rules retrospective operation w.e.f. 14.12.2005. The petitioners in that event would not have been prejudiced in any manner. 11 Having regard to the submission of Mr. Deb, learned counsel in respect of the recruitment rules published by the notification dated 11.04.2011, Mr. Chakraborty, learned Addl. G.A has candidly admitted that it is apparent that there is no promotional avenue as of now from the post of the Sr. Instructor, Group-C, (Non-Gazetted), now the Instructor who have been appointed for Science Department. 12. From the rival submissions what has transpired clearly is that Sr. Instructors, Group-C (Non-Gazetted), Polytechnic Institute, now TIT, do not have promotional avenue to the superior post carrying higher pay scale. But Mr. Chakraborty, learned Addl. Instructor, Group-C, (Non-Gazetted), now the Instructor who have been appointed for Science Department. 12. From the rival submissions what has transpired clearly is that Sr. Instructors, Group-C (Non-Gazetted), Polytechnic Institute, now TIT, do not have promotional avenue to the superior post carrying higher pay scale. But Mr. Chakraborty, learned Addl. G.A is entirely right in contending that by the recruitment rules published by the notification dated 14.12.2005, Annexure-R/1 to the counter affidavit, the recruitment rules published by the notification dated 06.10.2001, AnnexureR/2 to the counter affidavit has not been repealed inasmuch as those recruitment rules provide rules relating to method of the recruitment of different categories of posts, one is borne in Group-C (Non-gazetted) and the other in Group-B gazetted. It is apparent at that the recruitment rules published by the notification dated 21.05.2010 apparently though has been so framed in view of the revaluation and restructuring of certain posts by the notification dated 05.05.2009, AnnexureR/3 but it cannot serve the purpose for which it has been so brought out. The respondents shall be at liberty to amend the said recruitment rules published by the notification dated 21.05.2010, AnnexureR/4 to the counter affidavit or publish the appropriate notification renaming the Senior Instructor, borne in the scale of pay of Rs.5000-10300/as Instructor borne in the same pay scale without causing any prejudice to other rights which have by now vested in the writ petitioners for their appointment as the Sr. Instructors for the Science Department. This court is in total agreement with Mr. Deb, learned counsel that the promotion is a normal incidence of service when the similarly situated officers in the other branch holding the similar post with the same pay scale are provided with the channel of promotion, the Senior Instructors, Group-C (non-gazetted) for the Science Department cannot be deprived of the similar benefit. The respondents cannot be allowed to take a stand since the petitioners have accepted the terms and conditions of their service knowing fully well that there is no avenue of promotion, they cannot now claim such benefit. The respondents cannot be allowed to take a stand since the petitioners have accepted the terms and conditions of their service knowing fully well that there is no avenue of promotion, they cannot now claim such benefit. The apex court has unambiguously observed in Food Corporation of India vs. Parashotam Das Bansal that if there is no channel of promotion in respect of a particular group of officer resulting a stagnation over the year, the court although may not issue any direction as to in which manner a scheme should be formulated or by reason thereof interfere with the operation of existing channel of promotion to the officers working in the different department and the officers of the Government that the jurisdiction to issue direction to make a scheme cannot be denied to a superior court of the country. 13. It is the admitted position that all the petitioners have been languishing in the post of Senior Instructor, Group-C (Non-Gazetted) now for about 9 years without any promotion whereas in the similar post for the other department after five years, an incumbent becomes eligible for consideration of promotion to the next higher grade. This is not a fair management practice. The fairness of action is fundamental to the state action, which the respondents have failed to discharge so far. Hence, it is directed that the respondents shall formulate a scheme for promotion from the post of Senior Instructor, Group-C (Non-gazetted) for the Science Department or for the post of Instructor, Group-C (Non-Gazetted) for the Science Department within a period of 6 months from today. In terms of the said scheme, the petitioners shall be considered, if they are otherwise eligible for such consideration. 14. With this observation and directions, these writ petitions are partly allowed to the extent as indicated above. There shall be no order as to costs.