Research › Search › Judgment

Calcutta High Court · body

2017 DIGILAW 982 (CAL)

Debajit Borah v. Tea Board, India

2017-12-14

JYOTIRMAY BHATTACHARYA, SAHIDULLAH MUNSHI

body2017
JUDGMENT : JYOTIRMAY BHATTACHARYA, J. 1. Admittedly, twelve (12) writ petitioners were initially appointed as Assistant Development Officers vide appointment letter issued on 27th February, 2009. Subsequently, the said post of Assistant Development Officer was re-designated as Development Officer in implementation of the recommendations of the 6th Pay Commission vide office memo dated 26th August, 2009. The service of the petitioners was confirmed as Development Officers w.e.f 12th March, 2010. Since 2009 three (3) vacancies were created in the post of Assistant Director of Tea Development. Subsequently, in the year 2011 the Ministry of Commerce and Industry, Government of India sanctioned Small Growers Directorate. The said Ministry sanctioned twelve (12) post of Assistant Director of Tea Development. Thus fifteen (15) vacant posts of Assistant Director of Tea Development were available in Tea Board. Out of the aforesaid fifteen (15) post of Assistant Director of Tea Development six (6) posts were filled by way of promotion from the post of Development Officer in the year 2011. Subsequently, in 2013, three (3) posts became vacant. Thus, the existing vacancy in the said post is twelve (12). The feeder post for filling up the vacancies in the post of Assistant Director of Tea Development is Development Officer by promotion. The minimum qualifying service for promotion from the post having the grade pay of Rs. 4200/- (present grade pay of the Development Officer) to the post having grade pay of Rs. 5400/- (present grade pay of Assistant Director of Tea Development) was declared as eight (8) years vide DOPT circular No. AB 14017/2008-Estt.(RR) dated 24th March, 2009 and 12th March 2010. The employer viz. the Tea Board could not find any Development Officer having eight years of qualifying service as per the aforesaid circular of DOPT or having the minimum qualifying service period of seven (7) years as per 1971 R & P Rules which was being followed by the Board at the relevant time. The competent authority of the Board thus decided that in absence of eligible Development Officers to be promoted to the post of Assistant Director of Tea Development, the existing vacant post of Assistant Director of Tea Development will be filled up through direct recruitment. Such decision of the Board was notified vide office Memo No. 132 of 2013 dated 18th June, 2013. 2. Such decision of the Board was notified vide office Memo No. 132 of 2013 dated 18th June, 2013. 2. The petitioners felt aggrieved as the mode of selection process for the post of Assistant Director of Tea Development was changed even though eligible candidates are available in the feeder post who according to the petitioner should have been given an opportunity for being selected by way of promotion to the said promotional post of Assistant Director of Tea Development. The petitioners claimed that as per the extant provision of the Tea Board (Recruitment and Conditions of Services of Officers appointed by Government) Rules, 1971 which is being followed by the Tea Board for filling up the vacancies to the post of Assistant Director of Tea Development, all the writ petitioners satisfy the eligibility criteria. They contended that by issuance of an office Memorandum prescribing higher qualifying period of service in the feeder post, the provisions contained in the statutory rules cannot be nullified as the said Rule has neither been amended nor the amended Rules have been notified. They thus challenged the decision of the Tea Board in enforcing eligibility criteria by fixing higher qualifying service period as contained in the office Memorandum dated 18th June, 2013 by filing the writ petition being W.P. No. 18713 (W) of 2013. The said writ petition was, ultimately, dismissed by the learned Single Judge of this Court by an order passed on 14th March, 2014, by holding, inter alia, that as to the petitioners' attempt to challenge the notification of 18th June, 2013 on the ground of the eligibility criteria for the direct recruits, it does not appear that the petitioners have the locus standi to fashion such challenge. It was also observed that there was nothing to show that the petitioners wanted to participate at any examination to assess their suitability for being directly recruited to the post of Assistant Director of Tea Development. Such conclusion was drawn as the petitioners were found to have successfully protested against the previous notification that had been published by the employer for promotion on the basis of an examination. The writ petition was thus dismissed. 3. Challenging the order of dismissal of the said writ petition passed by the learned Single Judge of this Court, the instant mandamus appeal has been filed by seven(7) out of twelve(12) writ petitioners. The writ petition was thus dismissed. 3. Challenging the order of dismissal of the said writ petition passed by the learned Single Judge of this Court, the instant mandamus appeal has been filed by seven(7) out of twelve(12) writ petitioners. The remaining five(5) writ petitioners were impleaded as proforma respondents in this appeal. 4. We have heard Mr. Bikash Ranjan Bhattacharya, learned Senior Counsel appearing for the writ petitioners/appellants and Mr. Arijit Chaudhuri, learned Senior Counsel appearing for the Tea Board. We have considered the materials on record including order impugned. 5. Let us now consider the merit of the instant appeal in the facts of the instant case. 6. Tea Board was established as per the provision contained in the Tea Act of 1953. As per the provision contained in section 4(2) of the Tea Act, the Board shall be a body corporate by the name aforesaid, having perpetual succession and a common seal, with power to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall by the said name sue and be sued. There are two types of employees under the Tea Board. Section 9(1)(a) provides that the Central Government shall appoint a Deputy Chairman of the Board who shall assist the Chairman in the performance of his duties and exercise such of the powers and performance such of the duties as may be prescribed or as may be delegated to him by the Board or by the Committee constituted by the Board under section 8 or by the Chairman. It is provided in section 9(1)(aa) that the Central Government shall appoint a Secretary to the Board, who shall exercise such power and performance such duties as may be prescribed or as may be delegated to him by the Board or by the Chairman. It is also provided in section 9(1)(b) that the Central Government shall appoint all other officers of the Board drawing a salary exceeding Rs. 1700/- per month. Sub-Section 2 of section 9 provides that subject to such control and restriction as may be prescribed, the Board may appoint such other officers and employees as may be necessary for the efficient performance of its function and pay them such salaries and allowances as it may determine from time to time. 7. 1700/- per month. Sub-Section 2 of section 9 provides that subject to such control and restriction as may be prescribed, the Board may appoint such other officers and employees as may be necessary for the efficient performance of its function and pay them such salaries and allowances as it may determine from time to time. 7. Thus, we find that the Deputy Chairman, Secretary, and all other officers of the Board drawing salary exceeding Rs. 1700/- per month are appointed by the Central Government and the other officers and employees are appointed by the Board. Their pay and allowances and condition of their services are also determined by the Tea Board itself. 8. Section 49 of the said Act vests the power upon the Central Government to make Rules for carrying out the purposes of the Act. sub-section (2) of section 49 provides that in particular, and without prejudice to the generality of the foregoing power, such Rules may provide for all or any of the matters as mentioned therein. The matter with which we are presently concerned is set forth herein- "(d) The pay, allowances and other conditions of service of the Secretary and other Officers appointed by the Central Government. The said Rule does not authorize the Central Government to make any Rules for regulating the condition of service of the other employees who are appointed by the Tea Board. The pay, allowances and other condition of services of the employees appointed by the Tea Board thus cannot be regulated by Rules framed by this Central Government as per section 49 of the said Act." 9. Section 50 of the said Act empowers the Board to make by-laws consistent with the Act and Rules made there under to regulate the conditions of service and pay allowances of the employees and staff appointed by the Tea Board. 10. In pursuance of the provision contained in sub-section (3) of section 49 of the said Act, the Central Government framed the Rules which is called as Tea Board (Recruitment and Conditions of Services of Officers appointed by Government) Rules, 1971. The said Rules became effective with the publication of notification on 25th May, 1971. Though such. 10. In pursuance of the provision contained in sub-section (3) of section 49 of the said Act, the Central Government framed the Rules which is called as Tea Board (Recruitment and Conditions of Services of Officers appointed by Government) Rules, 1971. The said Rules became effective with the publication of notification on 25th May, 1971. Though such. Rules were framed for regulating the condition of service of the Officers appointed by the Central Government in 1971, but by-laws and/or Rules were not framed by the Tea Board for regulating the condition of service of its officers and employees, till 2015. It is only on 2nd November, 2015 the Tea Board (recruitment, promotion and condition of service) of officers and staff/By-laws 2015 was framed but no notification has yet been issued in the official gazette for making the said by-laws effective till date; as a result, there is no by-laws and/or Rules framed by the Tea Board which may govern and/or regulate condition of service and pay and allowance of the officers and staff of the Tea Board. In pursuance of the administrative decision taken by the Tea Board, the Tea Board has been following the Rules framed by the Central Government in 1971 for regulating the service conditions of the officers and staff appointed by the Tea Board. The impugned decision for fixing higher experience criteria for promotion from the post of Development Officer to the post of Assistant Director of Tea Development was taken by the Tea Board in its administrative side in pursuance of the direction contained in office Memorandum dated 24th March, 2009 issued by the Deputy Secretary to the Government of India, Ministry of Personnel Public Grievances and Pensions Department of Personnel and Training. 11. In this regard a question is raised as to the applicability of the provisions contained in the Office Memorandum dated 24th March, 2009 to the service conditions of the writ petitioners/appellants. It was contended that the statutory Rules of 1971 which governs the condition of service of the writ petitioners/appellants having not been amended, the conditions of service cannot be modified by issuance of the administrative instructions by the Tea Board Authority. The writ petitioners/appellants thus claimed that as per the Rules, the writ petitioners are eligible for being considered for their promotion to the post of Assistant Director of Tea Development. The writ petitioners/appellants thus claimed that as per the Rules, the writ petitioners are eligible for being considered for their promotion to the post of Assistant Director of Tea Development. It is also contended by the writ petitioners/appellants that even the eligibility criteria of the candidates in the feeder post having been earlier relaxed and four(4) employees in the feeder post having been promoted to the promotional post by relaxing the eligibility criteria with regard to their age limit, the concerned authority, according to the writ petitioners, were not justified in excluding the petitioners from the zone of consideration while filling up the promotional post viz. the Assistant Director of Tea Development. 12. Mr. Chaudhuri, learned Senior Counsel appearing for the Tea Board submitted that the Rules of 1971 was framed for regulating the services of the officers and employees of the Tea Board who are appointed by the Central Government. According to him the said Rules are not applicable to the employees, officers appointed by the Board. He submitted that in the absence of any statutory by-laws framed by Tea Board in pursuance of the provision contained in section 50 of the Tea Act, the Tea Board authorities by their administrative decision decided to follow the extant Rules contained in 1971 Act for regulating the service conditions, pay and allowances of the employees and officers appointed by the Tea Board. 13. He further argued that in the absence of any By-laws and/or the Rules framed there under, the Tea Board for regulating the conditions of service of the employees appointed by Tea Board, is not only competent to decide in its administrative side, the condition of service of the employees and/or officers appointed by the Tea Board but the authorities is also competent to modify its decision in its administrative side. 14. He further argued, since all these decisions viz. the decision for adopting of 1971 Rules and the modifications thereof were taken by the Tea Board in its administrative side, the enforceability of the decision relating to modification of the Rules does not depend upon the amendment of the Rules of 1971 which per se is not applicable to the officers and employees appointed by the Tea Board. 15. In support of such submission he has also relied upon a decision of the Hon'ble Supreme Court in the case of V.T. Khanzode & Ors. 15. In support of such submission he has also relied upon a decision of the Hon'ble Supreme Court in the case of V.T. Khanzode & Ors. v. Reserve Bank of India & Anr. reported in AIR 1982 SC 917 , wherein it was held that so long as staff regulations are not framed under section 58(1) of the Reserve Bank of India Act, 1934, it is open to the Central Board to issue administrative circulars regulating the service conditions of the staff, in exercising of the power conferred by section 7(2) of the said Act. 16. Mr. Bhattacharya, learned Senior Counsel appearing for the appellants submitted that the principle laid down in the said decision has no application in the facts of the present case as the Tea Act of 1951 does not contain any provision which authorizes the Tea Board to issue such circulars in its administrative side for regulating the condition of service of the officers and employees of the Tea Board so long as the bylaws are not framed in terms of section 50 of the said Act. 17. We find no substance in such contention of Mr. Bhattacharya, learned Senior Counsel as we cannot overlook the provision contained in section 31 of the Tea Act and particularly sub-section (2) thereof which provides that the Board shall carry out such directions as may be issued to it from time to time by the Central Government for the efficient administration of the said Act. 18. Here is the case where we find the decision to raise the eligibility criteria regarding experience of the employees in the feeder post was taken by the Tea Board in pursuance of the direction issued by the Central Government as per the 6th Pay Commission recommendation. 19. In our view, being the beneficiary of their post of Assistant Development Officer being merged with the post of Development Officer on the basis of the recommendation of the 6th Central Pay Commission, they cannot challenge the decision of the Tea Board Authority which the Tea Board Authority adopted by following the instruction of the Central Government while fixing the eligibility criteria regarding the experience of the candidates in the feeder post in view of the provision contained in section 31 of the said Act. 20. 20. In the absence of any By-laws framed under section 50 of the said Act, the Tea Board, in our considered view, is competent to take its decision in its administrative side for regulating the service condition of its employees and applicability of such decision does not depend upon amendment of the Rules of 1971 which per-se is not applicable to the employees appointed by the Board. 21. Before parting with, this Court feels it necessary to mention here that Mr. Chaudhuri, learned Senior Counsel appearing for the Tea Board in his usual fairness submitted that earlier the Tea Board by mistake promoted three (3) Development Officer to the post of Assistant Director of Tea Development even though they could not satisfy the eligibility criteria regarding period of experience of the candidates in the feeder post. Mr. Chaudhuri, further informed this Court that immediately on detection of such irregularities in the process of promotion given to those three(3) employees, the promotion which was given to them was cancelled by the Tea Board Authority and those promotees, being aggrieved by the decision of the Tea Board filed a writ petition challenging cancellation of their promotion before the High Court at Gauhati and the said writ petition is still pending. 22. Since the dispute is now awaiting consideration before the different High Court, this Court feels it unnecessary to discuss the merit of the said writ petition in the facts of the instant case. Suffice it to say that the Tea Broad immediately after detecting such irregularity cancelled the appointment of those three (3) promotees; as such, the writ petitioner cannot claim that the authority concerned acted illegally by excluding the writ petitioner from the consideration zone by giving discriminatory treatment to them, as on the ground that the other three similarly placed candidates were not only brought within the zone of consideration by relaxing age criteria but also they were promoted to the said post. 23. We thus do not find any merit in the present writ petition and/or appeal arising there from. We thus, do not find any illegality in the order impugned by which the writ petition was dismissed. 24. The appeal thus stands dismissed. 25. The application filed in connection therewith is thus deemed to be disposed of. Urgent Photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.