Tripura High Court
Sri Dipankar Saha vs The State Of Tripura on 15 October, 2020
Equivalent citations: AIRONLINE 2020 TRI 410
IN THE HIGH COURT OF TRIPURA
AGARTALA
W.A. No.195 of 2020
Sri Dipankar Saha,
son of Dilip Kumar Saha, resident of
Dashmighat, Joynagar, Agartala,
PIN: 799 001, West Tripura
............ Appellant (s)
-Versus-
1. The State of Tripura,
to be represented by the Principal
Secretary, Department of School
Education, New Secretariat Building, New
Capital Complex, Kunjaban, P.S. Capital
Complex, Agartala, West Tripura,
PIN:799 006
2. The State Project Director,
Samagra Shiksha Abhiyan, office of the
State Project Director, Samagra Shiksha,
Education (School) Department,
Government of Tripura
3. The Director,
office of the Directorate of Elementary
Education, Government of Tripura, Office
Lane, Agartala, West Tripura, PIN:799
001
4. The District Project Coordinator
(District Education Officer),
Government of Tripura, Department of
Education (School) Department,
Dharmanagar, North Tripura
............ Respondent (s)
For the Petitioner (s) : Mr. S. Bhattacharjee, Adv.
For the Respondent (s) : Mr. D. Bhattacharya, G.A.
Date of hearing & delivery : 15.10.2020
of Judgment & order
Whether fit for reporting : YES
Page 2 of 11
HON‟BLE MR. JUSTICE S. TALAPATRA
HON‟BLE MR. JUSTICE S. G. CHATTOPADHYAY
JUDGMENT & ORDER [ORAL]
[S. Talapatra, J.]
Heard Mr. S. Bhattacharjee, learned counsel appearing for the appellant as well as Mr. D. Bhattacharya, learned G.A. appearing for the respondents.
[2] By means of this inter-court appeal, the order dated 01.10.2020 delivered in W.P.(C)No.625 of 2020 by the learned Single Judge has been challenged. In the writ petition, the appellant had challenged the memorandum dated 26.08.2020 [Annexure-12 in the memorandum of appeal] whereby in the public interest, the petitioner has been sought to be transferred to the office of the District Project Coordinator (District Education Officer), North Tripura.
[3] The petitioner was engaged as the Junior Engineer Grade-1 pursuant to the employment notification dated 06.07.2013 [Annexure-1 to the memorandum of appeal]. From a reading of the said notification it comes to the fore that applications were invited from bona fide Indian citizens for engagement to the post of Junior Engineer Grade-1 on purely contract basis in the State Office of SSA Page 3 of 11 Rajya Mission, Tripura for a period of one year or cessation of SSA programme, whichever is earlier. The petitioner was appointed by the memorandum dated 22.08.2013 [Annexure-2 to the memorandum of appeal] whereby it has been clearly stated that recruitment was for the state project office of SSA Rajya Mission, Tripura, on purely contractual basis on a fixed monthly remuneration of Rs.14,986/- for a period of 1(one) year. In the engagement letter, the conditions as laid down, there nothing has been provided in respect of his transfer posting liability. For that reason, the said appointment in the state project office or for the said project and office has become the basis of challenge of the transfer order dated 26.08.2020 [Annexure-12 to the memorandum of appeal]. According to the learned Single Judge, that is the sole ground for challenging the said transfer order dated 22.08.2013, inasmuch as the petitioner has asserted that he does not have any transfer liability against his engagement to the post of Junior Engineer Grade-1. Learned Single Judge while dismissing the writ petition has observed that the petitioner is not a full time government servant, is not even a regular employee of a regular establishment. In a project financed by the Union of India and implemented by the State Government, he is engaged on a Page 4 of 11 contractual basis. In such capacity, he has little tenure protection, much less protection against reshuffle. The organization required his service at a place different from where he was initially engaged. This is for the first time in seven years that he has been asked to shift his place of working. No illegality can be found in such an order. [4] Mr. S. Bhattacharjee, learned counsel appearing for the appellant has submitted that learned Single Judge has not been persuaded by the ground that has been very clearly raised by the writ petitioner that his engagement did not entail any transfer liability. He was only supposed to be posted in the state office of SSA. Mr. Bhattacharjee, learned counsel has further contained that the breach of this condition constitutes arbitrary action by the respondents. Such arbitrary state action is anathema to Article 14 of the Constitution of India and as such it might be interfered by this court. In support of his contention Mr. Bhattacharjee, learned counsel has placed his reliance on Kumari Shrilekha Vidyarthi and Others vs. State of U.P. and Others reported in (1991) 1 SCC 212 where the apex court while dealing with en masse termination of District Government Counsel in the state of UP had observed that when the state action is arbitrary, unreasonable or irrational travelling without any reason, that action is an Page 5 of 11 infringement of Article 14. The court in such matters can extend its power of judicial review for testing the validity of such state action on the anvil of Article 14 of the Constitution of India. [5] Mr. Bhattacharjee, learned counsel has also relied on another decision of the apex court in the same line in State of Punjab and Another vs. Brijeshwar Singh Chahal and Another reported in (2016) 6 SCC 1 where the apex court has observed that:
"It is by now, fairly well settled that not only the Government but all public bodies are trustees of the power vested in them and custodians of public interest. Discharge of that trust in the best possible manner is the primary duty of those in charge of the affairs of the State or public body. This necessarily implies that the nature of functions and duties including the power to engage, employ or recruit servants, agents, advisors and representatives must be exercised in a fair, reasonable, non- discriminatory and objective manner. It is also fairly well settled that duty to act fairly and reasonably is a facet of „Rule of Law‟ in a constitutional democracy like ours. A long line of decisions of this Court over the past five decades or so have ruled that arbitrariness has no place in a polity governed by rule of law and that Article 14 of the Constitution of India strikes at arbitrariness in every State action. We may gainfully refer to some of these decisions, not so much to add to their content as to remind ourselves that we have come a long way in the matter of settling the contours of the doctrine of Rule of Law of which equality is one significant feature."
[Emphasis added] [6] Mr. S. Bhattacharjee, learned counsel, therefore, has submitted that the consolidated right by way of contract was available to the petitioner and that has been infringed arbitrarily by transferring him to a different place i.e. to the office of the District Project Coordinator (District Education Office), North Tripura, and he was not supposed to be transferred in the said office. Page 6 of 11 [7] Mr. D. Bhattacharya, learned G.A. appearing for the respondents has submitted that the said transfer has been done in the interest of public. He has asserted that the petitioner was initially appointed in the state office of State Project of SSA, Rajya Mission and that does not mean that his service should be only realised in that office. That apart, Mr. Bhattacharya, learned G.A. has submitted that on numerous occasions the petitioner was deputed to the other agency or to the different government office. The petitioner has served those tenures on deputation. There had been a serious reassessment on extension of in respect of tenure of the engaged personnel for managerial affairs resource person capacity under SSA, Tripura 'for administrative ease'. After taking the proposal submitted by the District Project Coordinators and the Project Officers (Education) TTAADC, the further extension of tenure of the officials have been extended beyond 31.03.2020. By the memorandum dated 09.04.2020, by which such extension was granted, the petitioner's tenure was extended beyond 31.03.2020. The memorandum dated 09.04.2020 [Annexure-10 to the memorandum of appeal], according to Mr. Bhattacharya, learned G.A., has completely changed the conditions of service. Therefore, the conditions of the first engagement letter by which the petitioner Page 7 of 11 was recruited first has been completely diluted and changed. Thus, the transfer of the petitioner by the impugned order dated 26.08.2020 by the State Project Director and Director, EE can be called arbitrary, unreasonable and unfair by any measure. [8] Mr. D. Bhattacharya, learned G.A. has also relied on a decision of the apex court in Beed District Central Coop. Bank Ltd. vs. State of Maharashtra and Others reported in (2006) 8 SCC 514. He has referred particularly to paras 8 to 14 of the said report. The part which Mr. Bhattacharya, learned G.A. has relied on dwells upon the interpretation of statute and impact of the terms of the contract. Mr. Bhattacharya, learned G.A. has also submitted that a part of the contract can be severed out when the purpose of the other part of the contract becomes invalidated by essence of time or the term. For purpose of enforcement of the remaining part of the clause of the contract he has relied on the doctrine of Blue Pencil which was evolved by the English and American courts and has been referred in Beed District Central Coop. Bank Ltd. (supra). In Halsbury's Laws of England, (4th Edn, Vol.9) in para No.430 it has been observed that a contract will rarely be totally illegal or void and certain parts of it may substantively remain lawful in themselves. The question, therefore, arises whether the illegal or Page 8 of 11 void parts may be separated or 'severed' from the contract and the rest of the contract can be enforced without the dead part. Nearly all the cases arise in such contexts of restraint in trade, the said principles are applicable. The apex court in the said report has further observed that the question should be considered from the point of view of the nature of the scheme as also the fact that the parties agreed to the terms thereof. When better terms are offered, a workman takes it as a part of the package. He may volunteer therefore, he may not. Sub-Section (5) of Section 4 of the payment of Gratuity Act, 1972 provides right in favour of the workman. Such a right may be exercised by the workman concerned. He need not necessarily do it. It is the right of individual workman and not all the workmen. When the expression 'terms' has been used, ordinarily it must mean 'all the terms of the contract'. While interpreting even a beneficent statute, like the Payment of Gratuity Act, the apex court is of the opinion that either contract has to be given effect to or the statute. The provisions of the Act envisage for one scheme. It could not be segregated. Sub-Section (5) of Section 4 of the Payment of Gratuity Act, 1972 Act does not contemplate that the workman would be at liberty to opt for better terms of the contract, while keeping the option open in respect of a part of the statute. While Page 9 of 11 reserving his right to opt for the beneficent provisions of the statute or the agreement, he has to opt for either of them and not the best of the terms of the statute as well as those of the contract. He cannot have both. If such an interpretation is given, the spirit of the Act shall be lost.
[9] Mr. Bhattacharya, learned G.A. has submitted that while the extension of engagements of the different personnel was made, the petitioner had option to assert that he would continue in the service if his posting is continued in the State Project Office, SSA Agartala. But he has not done so. It would be apparent from the memorandum dated 09.04.2020 that the petitioner had reported to the office of DPO, Sadar. His conduct demonstrates his choice is based on his convenience, not on strict observance of the term of the contract as is under reference.
[10] We have considered the entire memorandum and we find under the State Project there are several places of posting where the persons are deputed for realizing their service. Now by the said memorandum, when the petitioner was transferred, he had filed the representation dated 27.08.2020 by asserting all the pleas as noted in the writ petition but no action was taken on the said representation and as a result the petitioner has filed the writ Page 10 of 11 petition challenging the said order dated 26.08.2020. In the context of the observation made by learned Single Judge in the order dated 01.10.2020, the solitary question what emerges for our consideration is that whether the petitioner has got an indefeasible right to be posted in the same place or not. An ancillary question or another question that may arise in the context is that whether the engagement in the or for the state office of the SSA does mean his service cannot be utilized in any other offices which are being operated under SSA. The interpretation that has been advanced by the petitioner is that he has got a consolidated right in terms of the contract and he cannot be transferred out.
[11] This court is constrained to observe, that such narrow interpretation cannot be accepted by us inasmuch as engagement in the State Office cannot be confined to engagement for that office only, it should be interpreted following public interest doctrine that the petitioner's service was for implementation of the project named and styled as SSA. What Mr. Bhattacharjee, learned counsel for the petitioner has submitted has little force to persuade us the memorandum dated 09.04.2020 has been issued for purpose of extension. The object is apparent to meet the requirement of the office of the District Project Coordinators (District Education Office) Page 11 of 11 and the Project Officer (Education), TTAADC. The petitioner has accepted that extension without protecting any right if there had been any right at all.
[12] Having observed thus, we do not find any merit in this appeal and accordingly, the same stands dismissed. The impugned order dated 01.10.2020 what has challenged in this appeal stands affirmed.
However, there shall be no order as to costs.
Pending applications, if any, stand disposed of.
JUDGE JUDGE Moumita