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2022 DIGILAW 190 (TRI)

Jayanta Nandi v. State of Tripura

2022-04-12

INDRAJIT MAHANTY, S.G.CHATTOPADHYAY

body2022
JUDGMENT S.G. Chattopadhyay, J. - The present writ appeal arises out of the judgment and order dated 08.12.2021 passed by the learned Single Judge in W. P(C) No. 210 of 2018 directing the State-respondents to provide to the appellant the minimum basic pay and allowances of driver following the principle of equal pay for equal work. 2. The factual background of the case is as under: The appellant was temporarily appointed in Group-D under the Rural Development Department in erstwhile North Tripura District in the pay scale of Rs. 775-15-790-16-950-20-1130/- plus other admissible allowances by an order issued on 24th May, 1996 (Annexure-1 to the writ petition). Though he was appointed in Group-D, the department actually utilised his services as a driver since he was skilled in driving and he possessed a valid driving licence. Since the post of driver is a promotional post and it carries higher scale of pay, the appellant filed several representations to the competent authority in his department claiming promotion to the post of driver. The appellant pleaded that Tripura Government Vehicles Drivers Services Rules, 1979 under Rule 10(b) provide that 30% of the vacancies in the post of driver would be filled up by promotion from regular Group-D employees possessing a valid driving licence. It has been provided that for promotion to the post of driver from Group-D, transport department will conduct practical tests and interview to assess the suitability of the concerned candidate to drive a Government Vehicle and recommend the names to the department for filling up the promotional posts of drivers. The appellant claimed in the writ petition that he had been working as a driver since his appointment in Group-D on 24.05.1996. Several posts of driver in his department fell vacant since then. But the department did not consider his successive representations to provide him the pay scale admissible to drivers by appointing him as a driver on promotion. It was pleaded by the appellant that in the year 2015, when some vacancies arose in his department in the post of driver and his name was forwarded to the transport department for conducting practical tests for his selection and appointment as a driver. Practical test was also conducted. But he was never informed about the result of of such initiative. Practical test was also conducted. But he was never informed about the result of of such initiative. He, therefore, approached this Court by filing W.P(C) No. 210 of 2018 seeking the following reliefs: '(1) Issue Rule asking the respondents to show cause as to why, in the circumstances stated in this writ petition, they should not be directed to regularize/promote the petitioner to the post of a Driver in the appropriate scale from the date sine when his service is continuously taken as a motor vehicle driver and thereafter, pay all the consequential financial and other benefits to him; (2) After hearing the parties and being satisfied make the Rule in terms of Para (1) above absolute: (3) Pass any other order/orders as may be deemed fit and proper for ends of justice.' 3. In their counter affidavit, the State-respondents asserted before the learned Single Judge that even though the appellant-petitioner was initially appointed as a Peon by issuing the appointment order dated 24.05.1006, the appellant-petitioner having knowledge of driving his services were utilised as a driver instead of utilising his services as a Peon. Therefore, the appellant-petitioner through representation claimed promotion to the post of driver in terms of Tripura Government Vehicles Drivers Services Rules, 1979 (hereinunder referred to as 'the TGVDS Rules, 1979') whereunder 30% of the vacancies were reserved for regular Group-D employees. The respondent also asserted that the appellant petitioner was arrested by police on the charge of fraud and departmental proceedings were also drawn up against him by his disciplinary authority. During pendency of the departmental proceedings he was placed under suspension. It was pleaded by the respondents in their counter affidavit that after the departmental inquiry against him was over, name of the petitioner was forwarded to the transport department for conducting practical test in driving with a view to consider his candidature for promotion to the post of driver in terms of the TGVDS Rules, 1979. It was further pleaded by the respondents that the appellant cannot claim promotion to the post of driver as a matter of right. 4. During hearing of the writ petition before the learned Single Judge, none appeared for the petitioner. In the course of hearing of the appeal before us Mr. D.K. Biswas, learned Sr. advocate appears for the appellant along with Mr. G.K. Nama, learned counsel. Heard Mr. Biswas, learned Sr. Advocate. 4. During hearing of the writ petition before the learned Single Judge, none appeared for the petitioner. In the course of hearing of the appeal before us Mr. D.K. Biswas, learned Sr. advocate appears for the appellant along with Mr. G.K. Nama, learned counsel. Heard Mr. Biswas, learned Sr. Advocate. It is contended by the counsel of the appellant petitioner that admittedly the services of the appellant was utilised by the department as a driver for driving departmental vehicle though he was appointed in Group-D. Counsel has contended that Rule 10(b) of the TGVDS Rules, 1979 has unambiguously provided that 30% of the vacancies in the post of driver would be filled up by promotion from regular Group-D employees having valid driving licence. Counsel contends that the appellant filed several representations to his departmental authority to consider his case for promotion to the post of driver. The department arbitrarily denied the pay scale of driver to the appellant-petitioner despite utilising his services as a driver since his appointment and thereby violated his fundamental right to equal pay for equal work. Counsel contends that department also conducted his practical test in driving for his promotion to the post of driver but for reasons best known to the respondents he was neither promoted to the post of driver nor the pay scale of driver was provided to him. Counsel therefore, urges the Court to issue direction to the respondents to consider his promotion to the post of driver. 5. It would appear from the impugned judgment of the learned Single Judge that counsel of the respondents made the following submissions before the learned Single Judge: '5. Mr. Bhowmik, learned counsel appearing for the respondent No. 1 submits that the respondents had sponsored 5 (five) names in the year 2015 to the Transport Department to conduct the practical tests and interview for appointment as 'Driver' vide letter dated 27-01-2015 in terms of Rule 10(C) of the 'Rules 1979'. In the said communication dated 27-01-2015, the name of the petitioner had also featured but at that point of time, the Transport Department did not conduct the practical tests and interview since all promotions were held up in the State of Tripura vide Memorandum dated 1st April, 2017 consequent upon the order of the Hon'ble Supreme Court. In the said communication dated 27-01-2015, the name of the petitioner had also featured but at that point of time, the Transport Department did not conduct the practical tests and interview since all promotions were held up in the State of Tripura vide Memorandum dated 1st April, 2017 consequent upon the order of the Hon'ble Supreme Court. The said embargo in carrying out promotions was lifted vide Memorandum dated 22nd June, 2021 and thereafter, the Transport Department had issued notice to the petitioner to appear for the practical tests and interview on 23rd September, 2021. On that date, the petitioner had participated in the practical test and interview and the petitioner had successfully passed the practical tests and interview. At present the respondents are waiting for the recommendation of the Transport Department, Government of Tripura and thereafter, the promotion will be carried out as per the recommendation of the Transport Department, Government of Tripura. Mr. Bhowmik, learned counsel further submits that in the year 2015, 2 (two) vacant posts of 'Driver' were available for being filled up from amongst Group-D employees. Out of the said two posts, one post was reserved for ST candidates and one post was for un-reserved candidates. Accordingly, the respondents had sponsored 5 names including the name of the petitioner for taking practical tests and interview by the Transport Department, Government of Tripura. 6. In view of the submissions advanced by Mr. Bhowmik, learned counsel appearing for the respondent No. 1, it is clear that the respondents had started the process of selection of Driver's by way of promotion from amongst the Group-D employees (Peon). The petitioner being a Group-D employee had participated in the process; successfully qualified in the selection tests and interview and the respondent No. 1 is waiting for recommendation from the Transport Department because they had conducted the said tests. Mr. Bhowmik, learned counsel has further submitted that the respondent No. 1 has requested the Transport Department to recommend the names of successful candidates in order of their respective merits, and as soon as they receive the said recommendation they will issue the appointment letter in favour of the successful candidates. It is pertinent to mention herein that the petitioner belongs to UR category, so, one post out of three successful UR category candidates will be filled up as per the existing vacancies and roster. 7. Added to it, Mr. It is pertinent to mention herein that the petitioner belongs to UR category, so, one post out of three successful UR category candidates will be filled up as per the existing vacancies and roster. 7. Added to it, Mr. Bhattacharjee, learned Government Advocate submits that the respondent Nos. 2 and 3 i.e. the Office of the District Magistrate & Collectors has never utilized the service of the petitioner as 'Driver'. The two letters issued in favour of the petitioner wherein it was reflected that the said issuing officers had utilized his service as 'Driver' since 2013 to 2017 are disputed. According to learned Government Advocate, these officers are not competent to issue such letters and the service rules, 1979 also do not authorize such officers to issue such certificate in favour of the petitioner.' 6. In view of the pleadings of the parties and the submissions made by their counsel the learned Single Judge was of the view that claim of the petitioner for regularising his services in the post of driver since the date of his appointment was misconceived. Learned Single Judge held that the department had already undertaken the process of selection of Group-D employees including the petitioner to the post of driver by promotion in terms of the TGVDS Rules, 1979 and learned Single Judge declined to interfere with the selection process and directed the respondents to take immediate steps to complete the selection process within four weeks from the date of the order. The respondents were also directed to allow the petitioner the minimum basic pay and other allowances admissible to a driver under the ROP Rules from the month of December, 2021 if his services was actually utilised as driver. The judgment of the learned Single Judge reads as under: '8. I have considered the submissions of learned counsels appearing for the respondents. In the instant case, the petitioner has raised his claim for equal pay as that of 'Driver' on the plea that the respondents had been utilizing his service as 'Driver' since 1996. In my opinion, this claim of the petitioner cannot be entertained at this stage for the reason that before 2018 he never raised any such issue before any court of law that he should be paid pay scale of 'Driver' since the respondents have/had been utilizing his service as 'Driver', but, not as Peon. In my opinion, this claim of the petitioner cannot be entertained at this stage for the reason that before 2018 he never raised any such issue before any court of law that he should be paid pay scale of 'Driver' since the respondents have/had been utilizing his service as 'Driver', but, not as Peon. It appears from the writ petition that the petitioner had submitted a representation on 08-07-2016. So, the claim of the writ petitioner to pay him the pay scale of 'Driver' after the lapse of over 22 years cannot be considered at this stage following the doctrine of delay and laches. 9. The next claim of the petitioner for consideration of his promotion to the post of 'Driver' has already been taken into account by the respondent No. 1. The petitioner has also participated in the said selection process that was conducted in the month of September, 2021 and recommendation would be made accordingly. So, his second claim for consideration of promotion to the post of 'Driver' has already been undertaken by the respondent No. 1. 10. In this situation, the court should not interfere with the selection process. However, I direct the respondents to take immediate steps to complete the selection process for promotion to the post of 'Driver' within 4(four) weeks from the date of receipt of the copy of the order. 11. I deem it imperative to further direct the respondents to allow the petitioner the minimum basic pay and other allowances, a 'Driver' is entitled to under the present ROP Rules from the month of December, 2021, if the service of the petitioner is actually utilized as 'Driver'. It is made clear that the petitioner will not be entitled to arrears of pay and allowances as that of 'Driver' since this issue is disputed by the respondents and in addition, such claim has become stale by lapse of considerable period of time.' 7. It is made clear that the petitioner will not be entitled to arrears of pay and allowances as that of 'Driver' since this issue is disputed by the respondents and in addition, such claim has become stale by lapse of considerable period of time.' 7. Aggrieved by and dissatisfied with the judgment of the learned Single Judge, petitioner has challenged the said judgment by filing this appeal mainly on the following grounds: (i) The learned Single Judge did not appreciate the fact that the appellant has been rendering services as a driver in the department since his appointment on 24.05.1996 in Group-D. (ii) Learned Single Judge did not consider the fact that the respondents have arbitrarily denied his fundamental right to equal pay for equal work by denying the pay scale of driver to him. (iii) Learned Single Judge did not also consider the fact that the opportunity of promotion to the post of driver from Group-D was denied to him even though there were vacancies and such promotion was permissible under the Government Vehicles Drivers Services Rules, 1979. 8. We have recorded the submissions made by the counsel of the appellants in the preceding paragraphs. Counsel appearing for the respondents have resorted to same arguments advanced by them before the learned Single Judge. 9. We have perused the entire record and considered the submissions made on behalf of the parties. 10. Evidently, the TGVDS Rules, 1979 under Rule 10(b) provides that 30% of the total vacancies arising in a year in the post of driver shall be filled up by promotion from regular Group-D employees having valid driving licence for driving vehicles. Under Clause (c) of Rule 10 of the said Rules, 1979 it has been provided that for promotion of Group-D employees as driver, Transport Department shall take practical test and interview to assess the suitability of the employee concerned to drive a Government vehicle and recommend the names to the departments for filling up the promotional posts of drivers. Admittedly, the respondents have undertaken a process for promotion of Group-D employees to the post of drivers in the existing vacancies in terms of the said Rules. Therefore, we agree with the decision of the learned Single Judge that it would not be appropriate to interfere with the selection process under taken by the respondents. Admittedly, the respondents have undertaken a process for promotion of Group-D employees to the post of drivers in the existing vacancies in terms of the said Rules. Therefore, we agree with the decision of the learned Single Judge that it would not be appropriate to interfere with the selection process under taken by the respondents. But admittedly, the respondents have been utilising the services of the appellant as a driver since the date of his appointment in the post of Group-D. The respondents, therefore, cannot deny his right to equal pay for equal work. Learned Single Judge has also considered this aspect and directed the respondents to grant the minimum basic pay plus other admissible allowances payable to drivers under ROP Rules to the appellant with effect from 01.12.2021 if the services of the petitioner was actually utilised as a driver. In our considered view, this part of the direction of the learned Single Judge should be interfered with. Since it has been admitted by the respondents that they have utilised the services of the appellant as a driver, following the doctrine of 'equal pay for equal work' we direct the respondents to provide to the appellant the minimum basic pay and allowances payable to drivers under the extant ROP Rules. Actual financial benefits shall be given to the appellant from three years preceding to the date of filing of the writ petition. Since the writ petition was filed on 08.02.2018, the appellant would be given the said benefit with effect from 08.02.2015. He would not be entitled to such financial benefit for the period prior to 08.02.2015 due to delay and latches. As directed by the learned Single Judge, the respondents shall complete the entire selection process undertaken by them for filling up the vacancies in the post of driver by promotion from Group-D employees within a period of next 4(four) months from today and inform the result to the appellant-petitioner. 11. In terms of the above, the appeal stands allowed and disposed of. Pending application(s), if any, shall also stand disposed of.