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2022 DIGILAW 296 (TRI)

Basu Maan Das v. State of Tripura And 2 Others

2022-07-12

T.AMARNATH GOUD

body2022
JUDGMENT 1. Heard Mr. P. Roy Barman, learned senior counsel assisted by Mr. S. Bhattacharjee, learned counsel appearing for the petitioner as well as Mr. D. Sharma, learned Addl. G.A. appearing for the respondents. 2. By means of this writ petition the petitioner has sought for redress of his grievance arising out of not counting his past service rendered by him in Karimganj College, Assam as Assistant Professor w.e.f. 19.09.2001 to 20.01.2020 before his joining in the same post under the Higher Education Department, Government of Tripura. The petitioner has urged before this court for necessary direction from the Hon'ble High Court upon the respondents for counting the past service rendered by the petitioner for all purposes. 3. The facts are mostly undisputed. The fact of the petitioner is that the petitioner is serving as Assistant Professor under the respondent No.2-The Director of Higher Education, Government of Tripura being posted at Netaji Subhas Mahavidyalaya, Udaipur, Gomati Tripura. 4. Initially, the petitioner joined in Karimganj College as permanent lecturer in the Department of Chemistry on 19.09.2001 in the pre-revised UGC pay scale of Rs.8000-13,500/-. Thereafter, the said scale was revised to Rs.15,600-39,100/- with academic grade pay of Rs.6000/-. 5. The Tripura Public Service Commission vide Advertisement No.04/2010 [Annexure-1 to the writ petition] invited online applications from bonafide India Citizens for recruitment to 246 posts of Assistant Professor [ST-172, SC-71], Reserved for differently abled (PH Locomotor)(UR) in subject/displines mentioned in the advertisement. In the said advertisement, it was stated that all the posts were grouped together for the purpose of reservation and shall not be segregated subject/discipline wise for identification for a particular category against any subject/discipline and in case of non-availability of required numbers of suitable SC/ST candidates the remaining vacancies upto a maximum ceiling of 102 will be filled by suitable general candidates. The advertisement contained the scale of pay, education and other qualification etc. the advertisement may be treated as a part of the pleading for reliance. 6. The petitioner has all the requisite qualifications to apply for the post of Assistant Professor, Department of Chemistry and applied through proper channel, with no objection from his employer, i.e. the Government of Assam. Thereafter, the petitioner was selected by the TPSC for the post of Assistant Professor in the Department of Chemistry and the TPSC recommended the name of the petitioner for appointment. Thereafter, the petitioner was selected by the TPSC for the post of Assistant Professor in the Department of Chemistry and the TPSC recommended the name of the petitioner for appointment. Thereafter, vide memorandum dated 04.11.2020 issued by the Special Secretary, Director of Higher Education, Tripura the petitioner was offered a temporary post of Assistant Professor in the Chemistry (Group-A, Gazetted), Government General Degree College, in the revised pay band of Rs.15,600-39,100/- with AGP Rs.6000/- per month. 7. The petitioner accepted the offer of appointment in the post of Assistant Professor within the stipulated period. Thereafter, vide notification dated 27.12.2010 [Annexure-3 to the writ petition] issued by the Dy. Secretary to the Government of Tripura, Education (Higher) Department, the petitioner and 86 others were appointed as Assistant Professor (Group-A, Gazetted), General Degree College, in the pay ban of Rs.15,000-37,000/- with AGP of Rs.6000/- plus admissible allowances. The name of the petitioner appeared at Serial No.48 of the list and posting of the petitioner was given at Government Degree College, Dharmanagar, North Tripura. 8. The Principal Karimganj College, employer of the petitioner issued no objection and experience certificate dated 09.08.2010 in favour of the petitioner to the effect that the petitioner is a permanent lecturer in the Department of Chemistry, Karimganj College since 19.09.2001 and his authority has no objection if he joined Government Degree College, Education (Higher) Department, Government of Tripura and he will be permanently released by the Principal, Karimganj, Assam w.e.f. 20.11.2010 after noon. The said Principal issued last pay and allowance certificate in favour of the petitioner on 18.11.2010. 9. The said Principal issued last pay and allowance certificate in favour of the petitioner on 18.11.2010. 9. The University Grants Commission (Minimum Qualification for Appointment of Teachers and other Academic Staff in Universities and College and other Measures for the Maintenance of Standards in Higher Education) Regulations 2010, inter alia provides that Previous regular service, whether national or international, as Assistant Professor, Associate Professor or Professor or equivalent in a University, College, National Laboratories or other scientific/professional Organizations such as the CSIR, ICAR, DRDO, UGC, ICSSR, ICHR, ICMR, DBT, etc., should be counted for direct recruitment and promotion under CAS of a teacher as Assistant Professor, Associate Professor, Professor or any other nomenclature these posts are described as per Appendix III - Table No. II provided that: (a) The essential qualifications of the post held were not lower than the qualifications prescribed by the UGC for Assistant Professor, Associate Professor and Professor as the case may be. (b) The post is/was in an equivalent grade or of the pre-revised scale of pay as the post of Assistant Professor (Lecturer) Associate Professor (Reader) and Professor. (c) The candidate for direct recruitment has applied through proper channel only. (d) The concerned Assistant Professor, Associate Professor and Professor should possess the same minimum qualifications as prescribed by the UGC for appointment to the post of Assistant Professor, Associate Professor and Professor, as the case may be. (e) The post was filled in accordance with the prescribed selection procedure as laid down in the Regulations of University/State Government/Central Government/ Concerned Institutions, for such appointments. (f) The previous appointment was not as guest lecturer for any duration, or an ad hoc or in a leave vacancy of less than one year duration. Ad hoc or temporary service of more than one year duration can be counted provided that: (i) the period of service was of more than one year duration; (ii) the incumbent was appointed on the recommendation of duly constituted Selection Committee; and (iii) the incumbent was selected to the permanent post in continuation to the ad hoc or temporary service, without any break. (g) No distinction should be made with reference to the nature of management of the institution where previous service was rendered (private/local body/Government), was considered for counting past services under this clause. 10. (g) No distinction should be made with reference to the nature of management of the institution where previous service was rendered (private/local body/Government), was considered for counting past services under this clause. 10. In terms of Regulation 10.1 of the said regulation, 2010 the petitioner became entitled to counting of his past service rendered by him under Assam Government as Assistant Professor before joining Higher Education Department, Government of Tripura as Assistant Professor, Government Degree College. While the petitioner was appointed as Assistant Professor under Assam Government his qualification was in terms of UGC qualification and post which the petitioner held before joining and the post which is being held by the petitioner after joining is the same post. The petitioner had applied for direct recruitment in the post of Assistant Professor, Chemistry in response to TPSC Advertisement NO.04/2010, through proper channel and TPSC filled up the post of Assistant Professor, Chemistry in accordance with the prescribed selection procedure laid down by the UGC. In terms of FR 22 C the petitioner is also entitled to pay protection. 11. Unfortunately, after joining in the post of Assistant Professor under the Directorate of Higher Education, the petitioner was not given the benefit of past service and pay protection. As a result the petitioner has been deprived of many years of dedicated services, seniority and financial benefit. The petitioner has submitted representation dated 06.07.2013 through proper channel and approached the Director of Higher Education for getting the benefit of past service rendered by him in the same post in Karimganj, Assam under the Government of Assam. In the said representation, the petitioner has given all factual details and background to substantiate his claim for counting his past services and continuation of service. The petitioner has also enclosed last pay certificates along with representations with all necessary documents including the copy of UGC Regulations, 2010. 12. In reply to the said representation dated 06.07.2013 the Joint Director, Directorate of Higher Education, Tripura vide letter dated 11.12.2013 communicated to the Principal, Government Degree College, Dharmanagar, North Tripura to inform him that the application of the petitioner has been examined by the Finance Department and on examination, details had been asked for : 1. Whether Assam Government will bear the leave salary and pension contribution. 2. Whether the petitioner has drawn any pensionary benefits from his previous employer at the time of release. 3. Whether Assam Government will bear the leave salary and pension contribution. 2. Whether the petitioner has drawn any pensionary benefits from his previous employer at the time of release. 3. Whether Karimganj College under any pension scheme, if so furnished documents. 13. By a letter dated 31.03.2014 the Principal Karimganj College, Assam communicated to the Director of Higher Education, Government of Tripura to inform that the petitioner who was a permanent Professor of the said College joined the College on 19.09.2001 and he permanently released on 20.11.2010 to join the Government Degree College, Dharmanagar, Tripura. By the said letter it is also known that all College Teachers of Assam are entitled to get pension benefit in terms of Assam College Provincialisation Rules, 2010, if they had joined before 01.02.2005. It has been also stated id the said letter that6 the GPF Account of the petitioner could not be opened before he took permanent release though he was eligible for pension under the old pension scheme. 14. The Dy. Director of Higher Education, Assam vide letter dated 27.10.2017 [Annexure-10 to the writ petition] communicated to the petitioner in response to the letter dated 11.12.2013 and letter dated 09.09.2016 to furnish information with supporting documents as per queries made in the letter for necessary action. 15. Thereafter, the petitioner submitted a forwarded letter on 07.06.2018 to the Director of Higher Education, Government of Tripura stating that the same set of documents had been also forwarded to the Director of Higher Education, Government of Assam. The petitioner has also stated that he was again sending the documents as per enclosure for the purpose of counting his past service at Karimganj College since 19.09.2001. 16. The Director of Higher Education, Assam communicate to the Principal, Government Degree College, North Tripura vide letter dated 21.08.2018 that as per Rule 98(2) of Assam Service (Pension) Rules, 1969 a permanent Government servant on persistent absorption in a public undertaking will be eligible for pro-rata pension and DCRG on the length of his qualifying service under the Government till the date of permanent absorption and as such, there is no provision of Rules to bear the leave salary and pension contribution by the Government. It has been further stated in the said letter that the petitioner did not draw any pensionary benefit as no such benefit has been sanctioned in hit favour by the Director of Higher Education, Assam. The letter further stated that Karimganj College being a provincialised College under pensionable establishment as per Assam Service (Pension) Rules, 1969. 17. The petitioner has made a representation on 24.09.2018 through proper channel to the Director of Higher Education with reference to the letter dated 21.08.2018 for giving him the benefit of past service for pension and pay protection. The representation dated 24.09.2018 submitted to the Director of Higher Education and was forwarded by the Principal, Netaji Subash Mahavidyalay to the Director of Higher Education vide letter dated 26.09.2018. 18. Thereafter, the OSD, Director of Higher Education, vide letter dated 16.10.2019 communicated to the Principal, Netaji Subash Mahavidyalay to the Director of Higher Education as to reason for time intervening the period of release of the petitioner from earlier post from 20.11.2010 and joining of the petitioner the post under Director of Higher Education on 13.02.2011. 19. In response to the letter dated 16.10.2019 the petitioner made response to the Director of Higher Education through proper channel by his representation on 25.10.2019 and letter dated 31.10.2019 that after his release from Karimganj College on 20.11.2010, he was notified to join the Government Degree College, Dharmanagar on or before 15.02.2011 by letter dated 27.12.2010. As his mother was seriously ill and subsequently died, he could not join on 14.02.2011 and his joining has been duly accepted by the letter dated 24.03.2011. The Principal, Netaji Subash Mahavidyalay, Udaipur vide letter dated 31.10.2019 forwarded the aforesaid representation dated 25.10.2019 submitted by the Director of Higher Education, Government of Tripura. 20. The petitioner lodged his grievance arising out of not counting his past service rendered by him in the same post before joining as Assistant Professor under Director of Higher Education, Government of Tripura vide Registration No.GOVTR/E/2020/00025 on 09.02.2020. In response, thereto, vide letter dated 28.02.2020 the petitioner has been informed that the Finance Department has already regretted the proposal for counting his past service vide U.O. No.25 FIN/ESTT(II)/19 dated 10.04.2019. 21. The petitioner was not conveyed the decision of the Finance Department. From the letter dated 28.02.2020 the petitioner came to know about the Finance Department refusal of not granting him his past service benefit. 22. 21. The petitioner was not conveyed the decision of the Finance Department. From the letter dated 28.02.2020 the petitioner came to know about the Finance Department refusal of not granting him his past service benefit. 22. Most arbitrarily and illegally the past services of the petitioner have not been taken into consideration though under UGC regulations and FR 22 C the petitioner is entitled to counting of his past service for the purpose of pension, pay protection and other pensionary benefits. As per the UGC guidelines the petitioner is also entitled to be a Associate Professor in the pay scale pertaining to the said post on completion of 14 years since his initial joining on 19.09.2001. The petitioner is entitled to regularly monthly pension under the old scheme as the petitioner joined service when the old pension was in force. The petitioner has prayed for necessary direction from the Hon'ble High Court upon the respondents for counting the past services rendered by the petitioner for all purpose. 23. Mr. D. Sharma, learned Addl. G.A. appearing for the respondents submitted that the petitioner was initially appointed in the Karimganj College, Assam and it is a non-government college. He was released on 20.11.2010 and joined in the Government Service in Tripura in his new place of posting on 14.02.2011. His appointed letter was issued on 27.12.2010. In paras-13 and 16 of the counter affidavit filed by the respondents the respondents has stated as under : '13. That in reply to the statement6 made in paragraph 9 of the writ petition it is stated that, as per the document produced by the petitioner it is evident that he was released from Karimganj College, Assam w.e.f. 20.11.2010 (afternoon). But there is no indication in the said note that he has been released to enable him to join his duties, as stated in this para. Before issuance of appointment letter the Petitioner took release from his previous employment without following the rules of technical resignation. Hence, it is clear case of discontinuance/break in service with a gap of 85 days. 16. That in reply to averments and/or contentions made in paragraph-13 of the writ petition it is stated that the petitioner's past service is guided by the State Government's Rules and Regulation, adopted Rules, he being a State Government employee. Hence, it is clear case of discontinuance/break in service with a gap of 85 days. 16. That in reply to averments and/or contentions made in paragraph-13 of the writ petition it is stated that the petitioner's past service is guided by the State Government's Rules and Regulation, adopted Rules, he being a State Government employee. As per para-6 of Notification issued by the State Government vide No.F.4(11-4)-DHE/Budget/08(L-III) dated 02.02.2010 regarding revision of pay under 6th CPC UGC it appears that other terms and conditions of service of teachers may be notified by the State Government on the line of this order following regulations issued/to be issued by the UGC on this behalf. The petitioner has joined under this order and the State Government has not notified any such terms and conditions following the Notification mentioned herein regulating past service as per UGC Regulations, 2010 indicated in this para. As a State Government employee, the petitioners' past service is regulated by CCS(Pension) Rules, 1972, as adopted by the State Government. It appears that there is no evidence produced by the petitioner that his application has been forwarded through proper channel and also appears that the petitioner has resigned from his appointment on his own volition with a view to his taking up the new post or it may be such that it was not possible to forward his application in the public interest but the petitioner had volunteered to resign his post. In such case, the resignation of petitioner will subsist and entail forfeiture of past service. Moreover, another issue raises here that he was released from his past service on 20.11.2010, while he has joined in the instant post of Assistant Professor under the State Government on 14.02.2011 i.e. after a gap of 85 days, which also entailed forfeiture of past service due to break in service. It appears that the petitioner has rendered his service in Karimganj College, which is a Non-Government College as per list of Colleges available in the UGC's Website. There is no document produced by the petitioner that he applied through proper channel or his application for the instant post held by him has been forwarded to TPSC.' 24. Mr. Sharma, learned Addl. There is no document produced by the petitioner that he applied through proper channel or his application for the instant post held by him has been forwarded to TPSC.' 24. Mr. Sharma, learned Addl. G.A. has submitted that there is no evidence produced by the petitioner that his application has been forwarded through proper channel and also appears that the petitioner has resigned from his appointment on his own volition with a view to his taking up the new post or it may be such that it was not possible to forward his application in the public interest but the petitioner had volunteered to resign his post. In such a case, the resignation of the petitioner will subsist and entail forfeiture of past service. Moreover, he was released from his past services on 20.11.2020 while he has joined in the instant post of Assistant Professor under the State Government on 14.02.2011 i.e. after a gap of 85 days which also entails forfeiture of past service due to break in service. He has also referred to Rule 26(1) of CCS Pension Rules where it has been stated that the resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the Appointing Authority, entails forfeiture of past service. 25. He has also referred to 10.0 AND 10.1(C) of UGC Regulations, 2010 which provides as under : '10.0 COUNTING OF PAST SERVICES FOR DIRECT RECRUITMENT AND PROMOTION UNDER CAS. 10.1(C) The candidate for direct recruitment has applied through proper channel only.' 26. Having appreciated submissions as advanced by the counsel for the parties this court is of the view that the main case runs around for considering the case of the petitioner falls on two factual matrix. One with regard to the petitioner claiming continuous of service when there is breakage of 85 days, the said delay is not explained from 20.11.2010 to 14.02.2011. In a representation made by the petitioner on 25.10.2019 to the Director of Higher Education where he has stated that due to illness and death of his mother he could not approach on time. It is pertinent to note that in the said letter, the delay of 85 days as pointed out by the respondents have not been explained and duration of mother's illness and the date of her death have not been clearly mentioned by the petitioner. It is pertinent to note that in the said letter, the delay of 85 days as pointed out by the respondents have not been explained and duration of mother's illness and the date of her death have not been clearly mentioned by the petitioner. This court has no hesitation to said that the petitioner has not approached this court with clean hands. 27. On the issue of UGC Guidelines in 10.1(C) where it has been mentioned that the candidate for direct recruitment has applied through proper channel only meaning the institution has to recommend and forward the case of the candidate is not in the case of the petitioner, since the petitioner has not approached through the existing institution. Rule 26.1 of CCS Pension Rules provides as under : '(1) Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the Appointing Authority, entails forfeiture of past service.' 28. Rule 26.3 of CCS Pension Rules as relied by the counsel appearing for the petitioner that the condonation can be considered is not within the purview of this court and the same is before the competent authority, since the competent authority by way of its counter has rejected. It is not upon the petitioner to seek indulgence of this court for condoning the delay under Rule 26.3 of the said rules. Rule 26.3 provides as under : '(3) Interruption in service in a case falling under sub-rule (2), due to the two appointments being at different stations, not exceeding the joining time permissible under the rules of transfer, shall be covered by grant of leave of any kind due to the Government servant on the date of relief or by formal condonation to the extent to which the period is not covered by leave due to him.' 29. If the prayer of the petitioner is considered by this court and the said delay of 85 days is condoned, there is no yardstick as to what extent this court in Article 226 of the Constitution of India can exercise for purpose of condoning that delay when the statute specifically empowers the concerned authority for condoning, the High Court cannot enter into the shoes of the concerned authority and condone the delay. Though the petitioner has joined the service in time, the continuity has not been extended and there is breakage in service and thus, this court finds sufficient force in the submission of Mr. Sharma, learned Addl. G.A. appearing for the respondents. Accordingly, the arguments of the petitioner is negated and the writ petition is liable to be dismissed and the same is accordingly dismissed.