JUDGMENT AND ORDER : Heard Mr. Somik Deb, learned counsel appearing for the petitioner as well as Mr. T.D. Majumder, learned G.A. appearing for the respondents No.1, 2 and 3 and Mr. P. Dutta, learned counsel appearing for the respondents No.4 and 5. 2. By means of this writ petition, the petitioner has exposited his grievance. The respondents regularized him in the post of Lower Division Clerk (LDC) by the memorandum under No. 4(19)/THCB/83/Pt-V/5156 dated 10.12.2012 [Annexure G to the reply filed by the respondents No. 4 and 5]. To be noted that the petitioner was initially appointed on a fixed pay basis by the memorandum under No. F.4(19)/THB/91/427-31 dated 01.02.1992 [Annexure R/2 to the reply filed by the respondents No.1, 2 and 3]. From the said memorandum, it appears that the petitioner was engaged as the Accountant temporarily on fixed pay of Rs. 1,600/- per month and posted in the office of the Housing Commissioner, Tripura Housing Board. In the said memorandum it had been ategorically mentioned that the services of the appointee would be governed by the rules of Government of Tripura [adopted by the Board] in regard to leave, travelling allowance and other service matters in the same manner as applicable to Group ‘C’ employee of the Government of Tripura. That apart, certain other conditions were attached. Be that as it may, the petitioner continued in the said capacity till he was regularized by the memorandum dated 10.12.2012. 3. There is no dispute that by virtue of the policy as reflected in memorandum dated 15.11.2012 [Annexure-P/11 to the writ petition] the petitioner was regularized. In the said memorandum, there is a clause which reads as under : “2. The regularization of service of the DRW/Casual/Contingent etc Workers of PSUs and Autonomous Organizations shall also be subject to the following further conditions : (i) The regularization shall be made against entry level posts of Group-C or Group-D irrespective of the fact whether such workers are drawing higher consolidated pay or otherwise at present. Posts shall be created only at entry level of Group-C and Group-D as per need of the respective PSU/Autonomous Organization.” 4. According to Mr. Somik Deb, learned counsel who appears for the petitioner, from the records of the respondents it can be conveniently gathered that all through the petitioner’s designation has been referred as the Accountant. Posts shall be created only at entry level of Group-C and Group-D as per need of the respective PSU/Autonomous Organization.” 4. According to Mr. Somik Deb, learned counsel who appears for the petitioner, from the records of the respondents it can be conveniently gathered that all through the petitioner’s designation has been referred as the Accountant. In support of his contention, he has referred to the communication dated 07.10.1993 under No.F.4(23)/THB/1427 made by the Tripura Housing Board after verification of the character and antecedents in respect of the staff appointed in the T.H.B. A list of DRWs/Contingent/Casual etc Workers under different PSUs/Autonomous Bodies as approved for regularization is annexed with the said communication dated 07.10.1993 and the name of the petitioner appears at Sl. No.1. He has been shown as the Accountant having the educational qualification of M.Com and the date of birth being 13.01.1965. At that point of time, the petitioner was drawing a fixed sum of Rs.8,934/- per month. Mr. Deb, learned counsel appearing for the petitioner has further contended that from the documents of the respondents No.4 and 5 it can also be demonstrated that there was one vacant post of the accountant in the Tripura Housing and Construction Board, formerly Tripura Housing Board. In this regard, learned counsel of the petitioner has referred to the memorandum No. F4(17)/THB/Pt.-III dated 25.01.2010 issued by the Chief Executive Officer of the respondent Board. In Sl. No.15, against the post of Head Clerk/Accountant one vacancy is indicated. For that reason, Mr. Deb, learned counsel appearing for the petitioner has submitted that by mis-constructing the provisions of the said memorandum dated 15.11.2012 as reproduced above the respondent board has shown the petitioner as eligible to be absorbed by way of regularization under the said scheme in the post of LDC. However, in the list prepared for this purpose, particularly in the column 10 for remarks it has been noted as under: “Presently holding the Post of Accountant and the same post continue as per Memorandum of Finance department Government of Tripura No. F.34(3)-FIN(G)/12 dated 15th November, 2012.” 5. The respondents by filing their replies have fundamentally contended that there was no post of the Accountant in the Tripura Housing Board or Tripura Housing and Construction Board and the petitioner was simply a casual worker who was discharging the duties of the LDC. The respondents by filing their replies have fundamentally contended that there was no post of the Accountant in the Tripura Housing Board or Tripura Housing and Construction Board and the petitioner was simply a casual worker who was discharging the duties of the LDC. Further, from the recruitment rules as adopted by the board by their notification under No.F.4(19)/THCB/83/Pt-V(S)/11598-11605 dated 02.08.2013 it would be apparent that the post of the accountant is to be filled up 100% by promotion. As such, at the relevant point of time there was no post that could be filled up directly and hence, there was no scope in terms of the clause of the said memorandum dated 15.11.2012 in the entry grade for the Accountant. 6. Mr. P. Dutta, learned counsel appearing for the respondent Nos. 4 and 5 has drawn attention of this court to the paragraphs 7, 8, 9 and 10 of the reply filed by those respondents which are reproduced hereinunder : “7. That, initially all the employees of THCB were engaged on fixed pay basis without against any sanctioned post in different dated w.e.f. 04.12.1991 to 04.01.1993 and subsequently the State Government created 15 categories of posts for THCB vide order dated 10.04.2007 in which no post has been created for Accountant. 8. That, the posts against which the employees of THCB were appointed on fixed pay basis cannot be treated as ‘Created regular posts as had no prior concurrence of the Finance Department of Government of Tripura as required under policy of the Government of Tripura. 9. That, as the posts on which employees of THCB were appointed on ‘Fixed Pay’ cannot be treated as ‘Regular Posts’ but be considered as ‘Full time basis engagement’ and hence, as per policy decision of the Government applicable for different PSUs/Other Autonomous Organization as per Memorandum No. F.34(3)-FIN(G)/12 dated 15.11.2012 were regularized by fresh appointment in the service on communication received from the controlling Department i.e. Nodal Department, dated 30.11.2012. 10. 10. In view of Memorandum dated 15.11.2012 this matter was placed in the 80th Board meeting held on 10.12.2012 for fresh appointment of the fixed pay employees and accordingly discussed in the said Board meeting and subsequently the said decision was confirmed in the 81st Board meeting held on 01.01.2013 for fresh appointment of the fixed pay employees and accordingly for all the fixed pay Lower Division Clerk were issued offer of appointment dated 10.12.2012 on regular basis afresh and accordingly 15 numbers of Lower Division Clerks accepted their offer of appointment and subsequently joined their regular services without any protest.” 7. Mr. Dutta, learned counsel has also pointed out that the content of these paragraphs has not been disputed by the petitioner. According to Mr. Dutta, learned counsel appearing for the respondents No. 4 and 5, the employees of the Tripura Housing and Construction Board were initially engaged on fixed pay basis without any sanctioned post. Subsequent thereto, having received the sanction from the Finance Department vide the office order dated 10.04.2007 under No. F.6(129)-PWD(E)/75(Pan-10) [Annexure-D to the reply filed by the respondent Nos. 4 and 5] 92 post of various categories starting from the Joint Housing Commissioner to the draftsman have been created. No post of the Accountant since was created by the said office order, it has to be assumed that there was no post of the Accountant. 8. Mr. Dutta, learned counsel has further submitted that in some documents, the reference has been made having no regard to the records of the Tripura Housing and Construction Board. He has urged this court that the basic records be given the primacy. The respondents No.1, 2 and 3 have averred in the reply categorically that the petitioner was designated in the Tripura Housing and Construction board as the Accountant, but the work used to be undertaken was of LDC. The petitioner was also appointed in the post of the Accountant as per provisions of the Recruitment Rules prevailing in the Tripura Housing and Construction Board Limited at the relevant time. 9. Mr. T.D. Majumder, learned G.A. appearing for the respondent No.1, 2 and 3 has further submitted that it is true that in the approved list the petitioner has been shown as the Accountant by the Accounts Officer of the Tripura Housing Board. Mr. 9. Mr. T.D. Majumder, learned G.A. appearing for the respondent No.1, 2 and 3 has further submitted that it is true that in the approved list the petitioner has been shown as the Accountant by the Accounts Officer of the Tripura Housing Board. Mr. Majumder, learned G.A. has fairly submitted that the petitioner was no doubt appointed in the post of accountant as would be evident from the memorandum dated 04.12.1991 [Annexure P/1 to the writ petition]. But what has been shown in the communication dated 30.05.2012 [Annexure B to the reply filed by the respondent Nos.4 and 5] that the petitioner was engaged as a fixed pay employee keeping the regular pay scale against that post in abeyance is not correct inasmuch as when the petitioner was appointed way back in 04.12.1991, no such method was available in the State Government or in the Public Sector units. This statement is not even supported by any authorization from the competent authority. It is the Administrative Officer and the DDO of the Tripura Housing and Construction Board has made this input in the said statement. Even in the said statement which has been communicated to the Joint secretary, Government of Tripura, Finance Department, the Administrative Officer and DDO of the Tripura Housing and Construction Board has shown the petitioner as the Accountant who had been working since 06.02.1992 and therefore the petitioner was shown to be entitled to get the payment to in the revised pay scale of Rs.5,310-24,000 with grade pay of Rs.2,400/-. But while the petitioner was regularized in terms of the memorandum dated 15.11.2012 [Annexure P/11 to the writ petition], the petitioner had initially been appointed in the PB-2, in the scale of pay of Rs.5,310-24000 but with a lower grade pay of Rs.1,800, with other allowances as was admissible to the similar categories by the memorandum dated 10.12.2012 [Annexure-G to the reply filed by the respondents No.4 and 5. 10. Mr. Somik Deb, learned counsel appearing for the petitioner in rejoinder has brought to the notice of this court, the Recruitment Rules which was approved in the 25th meeting of Tripura Housing Board held on 14.08.1989 [Annexure-I to the reply filed by the respondents No.4 and 5]. Based on that Recruitment Rules Mr. 10. Mr. Somik Deb, learned counsel appearing for the petitioner in rejoinder has brought to the notice of this court, the Recruitment Rules which was approved in the 25th meeting of Tripura Housing Board held on 14.08.1989 [Annexure-I to the reply filed by the respondents No.4 and 5]. Based on that Recruitment Rules Mr. Deb, learned counsel has categorically asserted that the rule itself demonstrates there was one post of the Accountant in the scale of pay of Rs.1,450-3,710/- which in course of various revisions has been revised to PB-2, in the scale of pay of Rs.5,310-24,000 with the grade pay of Rs.2,400. He has further submitted that in the said Recruitment Rules there is provision for direct recruitment to the extent of 50%. Therefore, it cannot be simply brushed aside that the said post of Accountant can also be treated as the entry post for purpose of regularization. According to Mr. Deb, learned counsel, the communication under No.F.6(16).PWD(E) dated 11.01.2012 does not anywhere provide that that was the only post in the said Board. Moreover, the respondents No. 4 and 5 while traversing the averments made in the writ petition did nowhere state how the said Recruitment Rules was approved on 14.08.1989 without a sanctioned post. 11. While summing up his submission, Mr. Deb, learned counsel has contended that the respondents particularly the respondents No. 4 and 5 acted unfairly while interpreting the Clause-2(I) of the said memorandum dated 15.11.2012. The petitioner was appointed as the fixed pay employee temporarily and not in contract basis and he was allowed to continue in the said capacity till his regularization. If all the documents are read with the Recruitment Rules, there cannot be any amount of doubt that the petitioner was discharging the function of the Accountant in the Tripura Housing and Construction Board [formerly the Tripura Housing Board]. 12. Having scrutinized the records including the various communications made confidentially it evinces that the petitioner was working as the Accountant in the Tripura Housing and construction Board, formerly Tripura Housing Board. On noticing the entry in the Recruitment Rules, this court is of the view that one post of the Accountant existed. It may be so that the said post was not having due sanction from the government in terms of its policy. On noticing the entry in the Recruitment Rules, this court is of the view that one post of the Accountant existed. It may be so that the said post was not having due sanction from the government in terms of its policy. The memorandum dated 15.11.2012 has clearly stipulated that DRW/Casual/Contingent etc Workers, who were engaged on or prior to 31.03.2003 on full time basis in different PSUs/Other Autonomous Organizations with or without concurrence of Finance Department and have completed 10 years of service as on 31.07.2012, other than Part Time Workers, Teachers and Workers engaged under SSA and other Schemes/Programmes, may be considered for regularization as per the list as has been referred. 13. There is no dispute that the petitioner on 31.07.2012 had completed about 19 years and odd days thus he was entitled to be considered for regularization. Whether the respondents have given a proper construction of the Clause 2(I) of the said memorandum dated 15.11.2012 is the sheet anchor of the entire controversy. The said Clause-2(I) of the memorandum dated 15.11.2012 has stipulated that the regularization shall be made against the entry level post of Group-C or Group-D irrespective of the fact whether such workers are drawing higher consolidated pay or otherwise. The post shall be created only at the entry level of Group-C or Group-D as per need of the respective PSUs/Autonomous Organization. The respondents have all the time shown the petitioner as the Accountant, but while recommending his name for regularization he had been proposed to be absorbed against the post of LDC though he was not holding the post of LDC. Even Mr. Majumder, learned G.A. has acceded to this aspect. From that action of the respondents the entire controversy has emerged inasmuch as the petitioner has suffered serious detriment. Now the moot question that falls for consideration is that whether at the relevant point of time any post of Accountant was available in the Tripura Housing and Construction Board. 14. Mr. T.D. Majumder, learned G.A. appearing for the respondents No.1, 2 and 3 have submitted that on the basis of the office order dated 10.04.2007 [Annexure-D to the reply filed by the respondents No.4 and 5] no post of the Accountant was available at the relevant point of time. As such, the petitioner could not have been regularized against the post of Accountant. 15. As such, the petitioner could not have been regularized against the post of Accountant. 15. It is surprising to note that the respondents No.4 and 5 while forwarding the name of the petitioner for regularization did not direct their consideration to the fact that the petitioner was entertained against the post of Accountant from the very inception of his service. It appears further that the said post existed then, as is evident from the various documents including the Recruitment Rules [Annexure-I to the reply filed by the respondent Nos. 4 and 5]. It was therefore their duty to reflect the correct position while recommending the petitioner for regularization or for creating the post with sanction of the Finance Department. They had struck to the post as created by the office order dated 10.04.2007. There cannot be any controversy that the posts created by the office order dated 10.04.2007 do not include any post of the Accountant. 16. There is explanation from the respondents how in absence of any post the Recruitment Rules, [Annexure-I to the reply filed by the respondents No.4 and 5] or the subsequent Recruitment Rules as notified vide notification under No.F.4(19)/THCB/83/Pt-V(S)/11598-11605 dated 02.08.2013 could be framed or published for the post of the Accountant. There emerged a serious wrong in the approach of the respondents No. 4 and 5 for their wrong proposal the petitioner has been deprived from his due as this court is of the considered view the petitioner was/is entitled to be regularized in the post of Accountant, as in terms of the Recruitment Rules [Annexure-I to the reply filed by the respondents No. 4 and 5] it can be treated as the entry post in the category of Group-C. The impact that has been registered for the said wrong, committed by the respondents No. 4 and 5, has to be removed for doing the substantial justice. If there was no vacancy how the respondents in their statement dated 21.07.2012 [Annexure P/9 to the writ petition] has shown existence of the post of Accountant or how by way of the memorandum dated 25.01.2010 they had reflected that there was availability of one post of the Accountant. If there was no vacancy how the respondents in their statement dated 21.07.2012 [Annexure P/9 to the writ petition] has shown existence of the post of Accountant or how by way of the memorandum dated 25.01.2010 they had reflected that there was availability of one post of the Accountant. In this context, it is directed that one post of LDCs now shall be converted to the post of Accountant as personal, unless however the said post is required perennially and the petitioner shall be regularized with pay and allowances in the PB-2 in the scale of pay of Rs.5,310-24,000 with grade pay of Rs.2400 with other allowances as admissible from time to time with effect from 10.12.2012. The arrears that would accrue from 10.12.2012 shall be paid within a period of 3(three) months from the day when the petitioner shall submit a copy of this order. The formal order in this regard shall have to be published by the respondents within the said stipulated period. Having observed thus, this writ petition stands allowed to the extent as indicated above. There shall be no order as to costs.