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Tripura High Court · body

2017 DIGILAW 162 (TRI)

Apurba Chakraborty v. State of Tripura

2017-03-10

S.C.DAS

body2017
JUDGMENT : By filing this writ petition the petitioner prayed for the following reliefs: “(i) Issue Rule upon the Respondent to show cause as to why a Writ in the nature of Mandamus and/or order/orders and/or direction/directions of like nature shall not be issued by directing the Respondent to incorporate the name of the Petitioner in the Final Seniority List in the Grade of Junior Engineer (Mechanical) (Degree Holder), Grade-I, (Group-B, Non Gazetted) published vide Memo No. F.2.(169)/Agri/Estt/9394/490525, dated, 30/04/2014, issued by the Director of Agriculture, Government of Tripura. (ii) Issue Rule upon the Respondents to show cause as to why a writ in the nature of Mandamus and/or order/orders and/or direction/directions of like nature shall not be issued by Directing the Respondents to include the name of the Petitioner at serial No.1 of the Final list in the Grade of Junior Engineer(Mechanical), Degree Holder, Grade I (Group B-Non-Gazetted), in the scale of pay of Rs. 9570/30,000/-, under Pay Band 3 with grade pay of Rs. 3500/- in the Department of Agriculture as on 28.02.2014, published vide Memorandum No. F.2(169)-Agri/Estt/9394/490525, dated 30.04.2014, issued by the Director of Agriculture, Government of Tripura. (iii) Issue Rule upon the Respondents to show cause as to why a writ in the nature of Mandamus and/or order/orders and/or direction/directions of like nature shall not be issued by Directing the Respondents to treat and consider the Petitioner holding the post of Junior Engineer (Mechanical), Degree Holder, Grade I (Group B-Non-Gazetted) with effect from 01.03.1990. (iv) Issue Rule upon the Respondents to show cause as to why a writ in the nature of Mandamus and/or order/orders and/or direction/directions of like nature shall not be issued by Directing the Respondents to give the benefit of 1.86 times of basic pay fixation to the Petitioner in terms of Finance Department Order, dated, 01.03.2013. (v) Issue Rule upon the Respondents to show cause as to why a writ in the nature of Mandamus and/or order/orders and/or direction/directions of like nature shall not be issued by Directing the Respondents to release the yearly increment of the Petitioner which had fall in due since 2013. (vi) Issue Rule upon the Respondents to show cause as to why a writ in the nature of Mandamus and/or order/orders and/or direction/directions of like nature shall not be issued by directing the Respondents to provide honorarium to the Petitioner @ Rs. (vi) Issue Rule upon the Respondents to show cause as to why a writ in the nature of Mandamus and/or order/orders and/or direction/directions of like nature shall not be issued by directing the Respondents to provide honorarium to the Petitioner @ Rs. 300/- per month after the expiry of 3 months with effect from 13.12.2007, as the Petitioner has been holding the Current Duty Charge of Asst. Engineer (Mechanical) with effect fro 13.12.2007. (vii) Make the rules absolute. ………………………………” 2. Heard learned counsel, Mr. P. Roy Barman for the petitioner and learned Addl. G.A., Mr. S. Chakraborty for respondent Nos.1, 2, 3, 5, and 6 and learned counsel, Mr. P. Dutta for respondent No.4. 3. Though the petitioner has prayed for various reliefs as indicated hereinbefore, but the crux of the case of petitioner is very simple. 4. Pursuant to advertisement No.6/1989 made by the TPSC the petitioner applied for the post of Extension Officer (Engineering) under the Director of Agriculture (respondent No.3), Government of Tripura and his name was recommended by the TPSC for one of the posts of Extension Officer (Engineering) (for short, E.O.). According to the petitioner, he joined the post pursuant to Notification dated 20.02.1990 but his date of joining has not been stated in the writ petition, whereas in the counter affidavit of the State respondents, it is mentioned that the petitioner joined on 01.03.1990. The post of E.O. was made equivalent to the post of Overseer by subsequent notification which was redesignated as Junior Engineer (Mechanical), Grade-I. 5. It is the case of the petitioner that he was holding Bachelor of Engineering (Mechanical), Degree from Tripura Engineering College and his qualification entered in his service book as a Degree holder Engineer. By Memo. dated 12.09.1991, issued by the Finance Department, the Junior Engineers Degree holders were treated as Junior Engineer Grade-I and by the same Memo. dated 12.09.1991, Junior Engineers Grade-II (Diploma holders) were also treated as Junior Engineer Grade-I. By Memo. dated 07.08.2006 and Memo. dated 06.11.2010, the seniority list of Degree holder Junior Engineers (Mechanical) was published and the name of the petitioner was placed in Sl. No.1. The petitioner being a Degree holder engineer and being senior was also entrusted the duty of Assistant Engineer (Current Duty Charge, for short, CDC) and he performed the duties as Assistant Engineer on different spells. 6. Subsequently, by Memo. No.1. The petitioner being a Degree holder engineer and being senior was also entrusted the duty of Assistant Engineer (Current Duty Charge, for short, CDC) and he performed the duties as Assistant Engineer on different spells. 6. Subsequently, by Memo. dated 07.11.2013 (Annexure P/12 to the writ petition), the petitioner’s name was mentioned in the list of Junior Engineers (Mechanical), Grade-I (Diploma holder) and it was a tentative seniority list against which the petitioner submitted representation but his representation was turned down. He was shown in Sl. No.29 of the list of Junior Engineers, Diploma holder. The representation of the petitioner was not considered by the respondents and final seniority list of the Junior Engineers, Diploma holder was published by Memo. dated 04.01.2013, and the petitioner’s name was reflected in Sl. No.29. It is the case of the petitioner that he has been wrongly included in the list of Junior Engineers, Diploma holder and that he was entitled to be in the list of Junior Engineers (Mechanical), Grade I (Degree holder). It is further contended by the petitioner that one Ganendra Chandra Pal was also similarly situated but he was treated as a Junior Engineer, Degree holder by the respondents, whereas the petitioner was not similarly treated though he was similarly situated. By filing rejoinder affidavit the petitioner also stated that the present Chief Engineer of the Agriculture Department was also similarly situated, whereas he was given the benefit of Degree holder engineer but the petitioner has been deprived. 7. Respondents contended that there was a Recruitment Rule in the post of E.O. and TPSC made advertisement for different posts together, such as Assistant Engineer (Mechanical), Assistant Engineer (Civil), Kanungo and Extension Officer (Engineering). The Educational qualifications for Extension Officer as per the Recruitment Rule were (i) School Final/Higher Secondary or equivalent examination passed, (ii) Licentiate in Agricultural Engineering/Mechanical Engineering. The petitioner opted for the post of E.O. which required lesser qualification, though he was allegedly having higher qualification of Degree in Mechanical Engineering which was reflected in his service book. Since he was appointed in the post of E.O. which was subsequently redesignated as Junior Engineer (Diploma holder), he cannot as of right claim the status of Junior Engineer (Degree holder). Since he was appointed in the post of E.O. which was subsequently redesignated as Junior Engineer (Diploma holder), he cannot as of right claim the status of Junior Engineer (Degree holder). According to the respondents, the case of Ganendra Chandra Pal cannot be an instance for the petitioner since Ganendra Chandra Pal was appointed in the year 1982, long before the petitioner and at that time there was less number of Degree holder engineers and he was designated as a Degree holder engineer in special consideration in relaxation of the Finance Department’s Memo. dated 12.09.1991. The name of the petitioner was wrongly entered in the seniority list meant for Degree holder Engineers and when the wrong was detected it was corrected. The financial benefit whatever was available time to time was granted to the petitioner. For his performing duties as Assistant Engineer (CDC), special remuneration was paid but subsequently it was regretted by the Finance Department and therefore could not be paid. 8. Mr. Roy Barman, learned counsel for the petitioner has submitted that the petitioner was a Degree holder engineer and his qualification entered in the service book. The Department considered his qualification and accordingly enrolled him in the list of Degree holder Junior Engineers, Grade-I and final seniority list published twice in the year 2006 and 2010, but subsequently without affording any opportunity to the petitioner it was changed and he has been listed in the seniority list of Diploma holder engineers. 9. Learned Addl. G.A., Mr. Chakraborty has submitted that the petitioner intentionally did not submit the advertisement and the Recruitment Rule of E.O. The Recruitment Rule of E.O. and the advertisement makes it clear that the petitioner has opted for the post of E.O. though in the same advertisement there were other posts also meant for the Degree holders. While he had opted for the post of E.O. which was not a post of Degree holders but he had a Degree, he cannot take a chance and claim as of right the status of Degree holder engineer. A copy of the Recruitment Rule for the post of Extension Officer (Engineering), Class III Non-Gazetted annexed as Annexure R1. That Rule was notified on 25.02.1985. It is clear that the petitioner was appointed under that Rule. A copy of the Recruitment Rule for the post of Extension Officer (Engineering), Class III Non-Gazetted annexed as Annexure R1. That Rule was notified on 25.02.1985. It is clear that the petitioner was appointed under that Rule. The Schedule of the Rule clearly shows the post, namely Extension Officer (Engineering), number of posts-35, scale of pay-Rs.600-1440/-, classification-Class III Non-Gazetted technical, and essential qualification-(i) School Final or Higher Secondary or equivalent examination, (ii) Licentiate in Agricultural/Mechanical engineering. 10. The advertisement made by TPSC i.e. Advertisement No.29 of 1991 shows that it was an advertisement made for different posts, such as Assistant Engineer (Mechanical) Group-A Gazetted, Assistant Engineer (Civil) Group-A Gazetted, Kanungo Group-C Non-Gazetted, and lastly Extension Officer (Engineering) Group C Non-Gazetted. It is abundantly clear that the petitioner applied for the post of Extension Officer (Engineering), a group C Nongazetted post in which he was selected and his name was recommended by the TPSC, and accordingly he joined on 01.03.1990. While the petitioner was allegedly having with degree in Mechanical Engineering he did not opt for the post meant for the Degree holders. He opted for a post for which qualification was much less than that of the Degree holder. After his joining he has submitted his testimonials of qualification and accordingly it was entered in his service book. 11. It is an admitted position that the Extension Officers (Engineering) were subsequently treated at par as Overseers and by Notification dated 12.09.1991 (Annexure P4 to the writ petition) those who were Junior Engineer Degree holders, were treated as Junior Engineer Grade I and those who were Junior Engineer Grade II Diploma holders and completed four years of service they were also treated as Junior Engineer Grade I. So, the petitioner was treated as a Junior Engineer Grade I (Mechanical) but his source was from the post of Extension Officer (Engineering), not as a Junior Engineer Degree holder. The seniority lists dated 07.08.2006 and 06.11.2010 wherein he was enlisted as a Junior Engineer Degree holder, according to the respondents, were a wrong entry which was subsequently rectified. According to the respondents he was supposed to be in the list of Junior Engineer Diploma holder since he joined in the post of Extension Officer (Mechanical). By notification dated 07.01.2013 the wrong entry was corrected and the petitioner was taken in the list of Junior Engineers Diploma holder. According to the respondents he was supposed to be in the list of Junior Engineer Diploma holder since he joined in the post of Extension Officer (Mechanical). By notification dated 07.01.2013 the wrong entry was corrected and the petitioner was taken in the list of Junior Engineers Diploma holder. It is an admitted position that those who were holding different posts of Engineering Branch of the Department were all treated as Overseer as per the ROP Rules, 1988 and subsequently they were treated as Junior Engineer Grade I pursuant to notification dated 12.09.1991(AnnexureP4 to the writ petition). 12. It is an admitted position that Gunendra Chandra Pal was also appointed in the post of E.O. in the year 1982. The petitioner was appointed in the year 1990. According to the respondents it was considered as a special case because there was shortage of Degree holder engineers. It is apparently clear that Ganendra Chandra Pal was similarly situated but he was given the benefit of Degree holder engineer. According to the respondents, it was in relaxation of the condition contained in Memo. dated 12.09.1991. Petitioner was not of the same batch of Ganendra Chandra Pal, but admittedly was similarly situated, since both were appointed as E.O. having Degree in Mechanical Engineering. So, if Ganendra Chandra Pal could be given the benefit of Degree holder engineer in relaxation of the Memo. dated 12.09.1991, why similar and same benefit should not be given to the petitioner. The State cannot discriminate its subjects. State action always must be fair, transparent and equal. It is true that petitioner entered into service as E.O. on his own choice. He opted for the post of E.O. though under the same advertisement, there were other posts meant for degree holders. 13. After his joining in the service his qualification as a Degree holder Junior Engineer (Mechanical) was entered in the service book and that was considered by the Department. He was subsequently treated as Degree holder Junior Engineer, Grade I and his name was reflected in the seniority list of the Degree holder Junior Engineers. Taking him into consideration as a Degree holder, he was also entrusted the duties of CDC. He was subsequently treated as Degree holder Junior Engineer, Grade I and his name was reflected in the seniority list of the Degree holder Junior Engineers. Taking him into consideration as a Degree holder, he was also entrusted the duties of CDC. So, while a similarly situated person Ganendra Chandra Pal was considered by the respondents as a Degree holder engineer, having similarly situated, like that of the petitioner, I find no valid reason at all to disentitle the petitioner with the same benefit. Further, the petitioner by filing additional affidavit brought on record another instance of one Swapan Das, who was appointed as a Overseer (Civil), but was subsequently treated as a Degree holder engineer and he is now the Chief Engineer of the Department. The service book of Swapan Das has been annexed as AnnexureP23, which shows that he entered in the service on 01.01.1992, i.e. after the petitioner as Overseer, having degree and he was treated as a Degree holder engineer. Under such circumstances, the action of the Department cannot stand in law and equity. As already observed hereinbefore, a State action cannot be partial. It cannot make pick and choose. All State’s actions must be according to law and there cannot be a discriminatory treatment. So, in my considered opinion, the petitioner has made out a good case, and therefore the writ petition is allowed to the extent that the petitioner is entitled to be treated as a Degree holder engineer and his name should be incorporated in the seniority list of Degree holder engineers. The listing of the name of the petitioner in Annexure P12 was arbitrary, and hence it is liable to be interfered. Therefore, the respondents are directed that the name of the petitioner should be deleted from the list of Diploma holder Junior Engineers (Annexure P12) and should be listed in the seniority list of Degree holder Engineers as per his seniority from the date he was treated as a Degree holder engineer in the seniority lists, dated 07.08.2006 and 06.11.2010. 14. The petitioner could not make out any case for other reliefs sought in the writ petition, and so the writ petition is allowed to the extent as indicated above and stands disposed of. 15. Parties to bear their own costs.