Tripura High Court
Sri Shibajyoti Bhattacharjee vs Umadevi (3) And Others on 4 January, 2017
Author: Chief Justice
Bench: Chief Justice
THE HIGH COURT OF TRIPURA
AGARTALA
1. WP(C) No.381/2006,
2. WP(C) No.382/2006,
3. WP(C) No.383/2006,
4. WP(C) No.134/2007,
5. WP(C) No.136/2007.
In WP(C) No.381/2006.
1. Sri Shibajyoti Bhattacharjee, S/O Late Satya Ranjan
Bhattacharjee, resident of House No.16/30,
Banamalipur, opposite side of A. A. Road, Agartala -
799001. Holding the substantive post of
Manager(Mechanical) and posted at the office of
D.G.M., Electrical Sub-Division No.1, Tripura State
Electricity Corporation Ltd., Banamalipur, Agartala.
2. Sri Sujit Biswas, S/O Sri Rati Ranjan Biswas,
permanent resident of West Pratapgarh, Agartala,
District - West Tripura. Holding the substantive post of
Manager(Electrical) and posted at the office of the
Senior Manager, Electrical Sub-Division No.1, Tripura
State Electricity Corporation Ltd., Banamalipur,
Agartala.
3. Smt. Anushree Datta, D/O Sri Ananta Kumar Datta,
resident of Badurtali Lane, Krishnanagar, Agartala,
District - West Tripura. Holding the substantive post of
Manager(Electrical) and posted at the office of D.G.M.,
Transmission Division, Agartala, Tripura State
Electricity Corporation Ltd., Banamalipur, Agartala.
4. Smt. Fulguni Biswas(Dasgupta), D/O Late Amalendu
Dasgupta, resident of Biswas House, Malanchanagar,
P.O - Kunjaban, Agartala - 799006, District - West
Tripura. Holding the substantive post of
Manager(Electrical) and posted at the office of D.G.M.,
Transmission Division, Tripura State Electricity
Corporation Ltd., Banamalipur, Agartala.
5. Sri Rahul Saha, S/O Sri Ramesh Chandra Saha,
resident of Village - Shibnagar, P.S - East Agartala,
Agartala, District - West Tripura. Holding the
substantive post of Manager (Group - A) and posted at
Corporate Office, Tripura State Electricity Corporation
Ltd., Banamalipur, Agartala.
....... Petitioners.
-: Vrs. :-
1. The State of Tripura represented by the Secretary to the
Department of Power, Government of Tripura, Agartala,
West Tripura.
2. The Chairman-cum-Managing Director, Tripura State
Electricity Corporation Ltd., Agartala, West Tripura.
3. The Chief Engineer, Department of Power, Government
of Tripura, Agartala, West Tripura.
WP(C) Nos.381/2006 & 4 ors Page 1 of 30
....... Respondents.
In WP(C) No.382/2006.
1. Mrs. Mita Saha, W/O Sri K D Choudhury, resident of village- Krishnanagar, Agartala, P.S. West Agartala, District - West Tripura. Holding the substantive post of Junior Engineer (Civil) and presently posted at the office of Superintending Engineer, Circle No.II, PWD, Netaji Chowmuhani.
2. Mrs. Saswati Laskar, W/O Dr. Sajal Debbarma, resident of village - T. P. Road, Krishnanagar, P.S - West Agartala, Agartala, West Tripura. Holding the substantive post of Junior Engineer (Civil) and presently posted at PWD Division No.I, Netaji Chowmuhani.
3. Sri Adyot Kumar Paul, S/O Late Prafullya Ch. Paul, resident of village - Dhaleswar, P.S. - East Agartala, Agartala, District - West Tripura. Holding the substantive post of Junior Engineer (Civil) and presently posted at PWD Construction Sub-Division, Khowai.
4. Smt. Lakshmi Goswami, W/O Dr. Amit Lal Goswami, resident of village - Shibnagar, P.S - East Agartala, Agartala, District - West Tripura. Holding the substantive post of Junior Engineer (Civil) and presently posted at PWD Division No.I, Netaji Chowmuhani.
....... Petitioners.
-: Vrs. :-
1. The State of Tripura represented by the Secretary to the Public Works Department, Government of Tripura, Agartala, West Tripura.
2. The Engineer-in-Chief, Public Works Department, Agartala, West Tripura.
3. The Chief Engineer, Public Works Department, Agartala, West Tripura.
....... Respondents.
In WP(C) No.383/2006.
1. Sri Panchajanya Ghosh, S/O Late Janaki Kumar Ghosh, resident of village - College Tilla, P.O. - Agartala College, Agartala, West Tripura. Holding the substantive post of Manager(Electrical) and posted at the office of D.G.M., Electrical Division No.III, Tripura State Electricity Corporation Ltd., Ambassa, Dhalai Tripura.
2. Sri Kamal Chakraborty, S/O Late Dakshina Ranajan Chakraborty, resident of House Type III/42, Kunjaban Township, Uttarayan Quarter Complex, P.O -
Kunjaban, Agartala. Holding the substantive post of Manager(Mechanical) and posted at the office of Senior Manager (Workshop Service) Tripura State Electricity Corporation Ltd., 79 Tilla, Agartala.
WP(C) Nos.381/2006 & 4 ors Page 2 of 30
3. Sri Prabal Roy, S/O Sri Sankar Chandra Roy, resident of village - Shibnagar, P.S. East Agartala, Agartala, District - West Tripura. Holding the substantive post of Manager(Electrical) and posted at the office of the Sr. Manager, Khayerpur, Electrical Sub-Division, Tripura State Electricity Corporation Ltd., Khayerpur, West Tripura.
....... Petitioners.
-: Vrs. :-
1. The State of Tripura represented by the Secretary to the Department of Power, Government of Tripura, Agartala, West Tripura.
2. The Chairman-cum-Managing Director, Tripura State Electricity Corporation Ltd., Agartala, West Tripura.
3. The Chief Engineer, Department of Power, Government of Tripura, Agartala, West Tripura.
....... Respondents.
In WP(C) No.134/2007.
1. Sri Titu Debnath, S/O Nikunja Behari Debanth, presently posted as Junior Engineer, having his official address at the office of the Sub-Division No.II, PWD, Udaipur, District - South Tripura.
2. Sri Dualal Roy Karmakar, S/O Late Prafulla Roy Karmakar, presently posted as Junior Engineer, having his official address at the office of the Water Resource Sub-Division -I, Udaipur, District - South Tripura.
3. Sri Tapan Chandra Pal, S/O Sri Lalit Mohan Pal, presently posted as Junior Engineer, Grade-I(Civil), having his official address at the P.H.E. Sub-Division XXIV, Mohanpur, District - West Tripura.
4. Sri Chandan Kumar Sen, C/O Sri Puspa Ranjan Sen, having his residential address at Old Motor Stand, Kailashahar, North Tripura having his official address at the office of Water Resource Sub-Division, Dharmanagar, District - North Tripura.
5. Sri Ashok Kumar Das, S/O Sri Gouranga Chandra Das. Presently posted as Junior Engineer, having his official address at the Kailashahar Division(Civil), Sub-Division No.1, District - North Tripura.
6. Sri Soumen Deb, S/O Sushil Chandra Deb, presently posted as Junior Engineer, GR-I(Civil), having his official address at office of the SDO, PWD, SD No.1, Amarpur, District - South Tripura.
7. Sri Biswajit Bhattacharjee, C/O Lt. Dwijendra Nath Bhattacharjee, having his residential address at North Badharghat, A. D. Nagar, presently posted as Junior WP(C) Nos.381/2006 & 4 ors Page 3 of 30 Engineer(Grade-I), PHE, having his official address at the office of the Sub-Division, Jirania under PHE Division No.IV, Agartala, district - West Tripura.
8. Sri Jiban Lal Banik, S/O Sri Matilal Banik, presently posted as Junior Engineer(Civil), Grade-I, having his official address at the P.W.D(R&B) Sub-Division No.I, Teliamura, District-West Tripura.
9. Sri Arun Kumar Debnath, S/O Gopendra Lal Debnath, having his official address at Jawaharnagar, PWD Sub- Division, Jawaharnagar Ambassa, District-Dhalai, Tripura.
10. Sri Pradip Deb, S/O Sri Gouranga Chandra Deb, presently posted as Junior Engineer Grade - I(Civil), having his official address at the office of the Soil Testing Labaratory, Planning Circle, Agartala, District - West Tripura.
....... Petitioners.
-: Vrs. :-
1. The State of Tripura represented by the Secretary to the Public Works Department, Government of Tripura, Agartala, West Tripura.
2. The Engineer-in-Chief, Public Works Department, Agartala, West Tripura.
3. The Chief Engineer, Public Works Department, Agartala, West Tripura.
....... Respondents.
In WP(C) No.136/2007.
1. Sri Dipak Chandra Lodh, S/o Late Pratap Chandra Lodh, presently posted in the office of the Senior Manager(Shift),Gas Thermal Power Plant, Control Room, Rokhia, District - West Tripura.
2. Sri Pijush Kanti Chakraborty, S/o Sri Hrishikesh Chakraborty, presently posted as Manager, Group - A(Mech.), having his official address at Udaipur Electrical Sub-Division, Udaipur, District - South Tripura.
3. Sri Partha Pratim Chakraborty, S/o Late Nani Gopal Chakraborty, presently posted as Manager Group A (Elect.), having his official address at the Office of the Deputy General Manager, Electrical Division No. - VI, Bagafa, District - South Tripura.
4. Sri Arumoy Saha, S/O Sri Nihar Ranjan Saha, presently posted at the office of the Deputy General Manager, Electrical Division No.VI, Bagafa, District - South Tripura.
WP(C) Nos.381/2006 & 4 ors Page 4 of 30
5. Sri Ajay Das, S/O Sri Amalendu Das, presently posted as Manager Group A (Mech.) having his official address at the office of the Senior Manger, 132 KV Sub-Station, Garod tilla, Kamalpur, under the DGM(Electrical), Electrical Division No.VII, Ambassa, TSECL.
6. Sri Sanjib Datta, S/O Sri Sudhir Chandra Datta, presently posted as Manager Group - A (Mech.), having his official address at the office of the Deputy Manager (Mechanical), Gas Thermal Mechanical Sub-Division - II, Rokhia, Dist. - Tripura(W).
7. Sri Subrata Deb, presently posted as Manager, Kumarghat Electrical Sub-Division, Kumarghat, District
- North Tripura.
8. Sri Debabrata Majumder, S/o Late Nirmal Chandra Majumder, Manager, Group - A, (Electrical), Mohanpur Electrical Sub-Division, District - West Tripura.
9. Sri Asim Bhowmik, S/O Late Subal Chandra Bhowmik, having his residential address at Jail Ashram Road, 'Ramkuthi' Dhaleswar, Agartala - 799007, District - West Tripura, presently posted as Manager(Tariff), having his official address at the office of the Commercial and System Operation, TSECL, Banamalipur, Agartala, District - West Tripura.
10. Sri Debabrata Pal, S/O Sri Ramani Mohan Pal, presently posted as Manger(Comm.) having his Official address at the office of the Deputy General Manager, Commercial & System Operation, TSECL, Agartala, District - West Tripura.
11. Sir Pijush Kanti Paul, S/O Late Surendra Chandra Paul, presently posted as Manager Group-A(Elect.) having his official address at the office of the Electrical Circle No.III, Kumarghat, District - North Tripura.
12. Sri Sushanta Das, S/O Late Ramesh Chandra Das, presently posted as Manager, Group-A (Elect.), having his official address at the office of the Senior Manger, Durjaynagar, Elect. Sub-Division, District - West Tripura.
13. Sri Dilip Kumar Debnath, C/O Late Lakshmi Narayan Debnath, presently posted as Manager, Group-
A,(Elect.), having his official address at the Corporate Office, TSCEL, Agartala, District - West Tripura.
14. Sri Sandip Gan Choudhuri, S/O Sri Shibapada Ganchoudhuri, presently posted as Manager, Group - A,(Mechanical) having his official address at the corporate office TSECL, Bidyut Bhawan, B.K. Road, Agartala, District - West Tripura.
15. Smt. Champakali Biswas, D/O Sri Sushil Biswas, presently posted as Manager, Group - A, having her official address at the office of the Senior Manager, Electrical Store Sub-Division, A.D. Nagar, Agartala, District West Tripura.
WP(C) Nos.381/2006 & 4 ors Page 5 of 30
16. Sri Sankar Choudhuri, S/O Sri Chitta Ranjan Choudhuri, presently posted as Manager, having his official address at the Central Testing Electrical Transmission Division, Agartala, District - West Tripura.
17. Sri Sanjib Nandy Majumder, S/O Sri Nirmal Jyoti Nandi Majumder, presently posted as Manager(Mechanical), having his official address at the office of the Senior Manager (Electrical), Mohanpur Electric Sub-Division, Mohanpur, District - West Tripura.
18. Sri Arindam Deb, S/O Sri Amalendu Deb, presently posted as Manager, Group - A, Mechanical, having his official address at the office of the Deputy General Manager, ED.VIII, Gakulnagar, District - West Tripura.
19. Sri Sankar Deb, S/O Sri Chira Ranjan Deb, presently posted as Manager Group - A having his official address at the office of the Senior Manager (Electrical), 132 KV Grid S/S, under Electrical Division II, Mission Tilla, Dharmanaghar, District - North Tripura.
20. Sri Krishnendu De, S/o Late Biresh Ranjan De, presently posted as Manager, Group - A (Electrical) having his official address at the office of the Senior Manager Electrical Sub-Division, Dharmanager, District
- North Tripura. (presently deputed to office of the Deputy General Manger, Electrical Division No.II, Dharmanagar).
21. Sri Pradip Kar, S/O Late Hiralal Kar, presently posted as Manager Group-A, having his official address at the office of the Senior Manager, Salema Elect. Sub-
Division, Salema, District - Dhalai.
22. Sri Dipankar Bhattacharjee, S/o Late Digbijoy Bhattacharjee, presently posted as Manager, Group-A, having his Official address at the Corporate Office, TSECL, Agartala, District - West Tripura.
23. Sri Sankar Gupta, S/o Late Dhirendra Kr. Gupta, presently posted as Manager - Gr.A, having his official address at office of the Senior Manager, Electrical Sub- Division No.VI, Bardowali, District - West Tripura.
24. Smt. Sujapa Hom Ray, D/O Sri Dilip Kumar Hom Ray, presently posted as Manager, Group-A, having her official address at the office of the Deputy General Manager, Group - A, having his official address at the office of the Deputy General Manager, Electrical Division No.1, Banamalipur, Agartala, District - West Tripura.
25. Smti Sibani Das, W/o Sri Salil Das, presently posted as Manager-Gr.A, having her official address at the office of the Deputy General Manager, Electrical Division No.1 Banamalipur, Agartala, District - West Tripura.
26. Sri Sumit Dasgupta, S/O Sri Anil Chandra Dasgupta, presently posted as Manager, Gr.A(Mech.), having his WP(C) Nos.381/2006 & 4 ors Page 6 of 30 official address at the office of the Corporate office, TSECL, North Banamalipur, Agartala, Dist. West Tripura.
27. Smt. Soma Dasgupta, W/o Sri Debashis Dasgupta, having her official address at he office of the Senior Manager, Electrical Sub Division No.III, Krishnanagar, Nutanpally, Agartala, Dist. - West Tripura.
....... Petitioners.
-: Vrs. :-
1. The State of Tripura represented by the Secretary to the Department of Power, Government of Tripura, Agartala, West Tripura.
2. The Chairman-cum-Managing Director, Tripura State Electricity Corporation Ltd., Agartala, West Tripura.
3. The Chief Engineer, Department of Power, Government of Tripura, Agartala, West Tripura.
....... Respondents.
BEFORE
HON'BLE THE CHIEF JUSTICE
Counsel for the petitioners : Mr. Somik Deb, Advocate.
Counsel for the respondents : Mr. B C Das, Advocate General,
Mr. S Chakraborty, Addl. G. A.,
Mr. N Majumder, Advocate,
Mr. J Majumder, Advocate.
Date of hearing : 02-12-2016.
Date of Judgment & Order : 04-01-2017
JUDGMENT & ORDER
This batch of five writ petitions involving a common of facts and of law were taken up together for joint hearing, and are now being disposed of by this common judgment.
2. At the outset, I wish to express my annoyance with the drafting of the writ petition, which runs into 50 pages, that too, without its annexures and of the additional counter affidavit filed by the petitioner, which is spanning 39 pages also without its annexures. Writ petition should be a concise statement of facts and of law, to the point, and yet comprehensive WP(C) Nos.381/2006 & 4 ors Page 7 of 30 enough to cover all the facts relevant for the decision. It has be to be drafted carefully and after due application of mind. It should be written in such a manner that it can be easily understood by the reader; it is not enough that the writer understands what has drafted. I went through the voluminous writ petition simply because I could not leave out the important facts of the petitioners. It is distressing to note that the contents are repetitive and argumentative, which could have been reserved for oral submissions. One must understand that I am not dealing with the case of the petitioners alone and, therefore, have limited time to prepare the judgment for one case or a group of cases. I hope and trust that a litigant public shall hereafter make an endeavour to confine their pleadings only to the facts in issue. One should be acquainted with the art of summary writings/précis writings/substance writings to save the time of Courts.
3. To come to the case at hand, to avoid unnecessary complications, I will first deal with the facts of W.P.(C) No.136 of 2006, decide the same and apply my decision thereon, so far as possible, to the facts of the remaining cases. There are 27 petitioners in this writ petition, and some of them are presently under the Power Department of the State of Tripura, while the rest were absorbed to the Tripura State Electricity Corporation Ltd., Agartala. The names and their respective dates of initial appointment as fixed pay Junior Engineers in the Power Department, Government of Tripura are shown below :
Sl. No. Names Date of appointment
1. Sri Dipak Chandra Lodh 06-4-1990
2. Sri Pijush Kanti Chakraborty 14-11-1990
3. Sri Partha Pratim Chakraborty 06-4-1990
4. Sri Arumoy Saha 07-4-1990
5. Sri Ajay Das 12-11-1990
6. Sri Sanjib Datta 16-11-1990
WP(C) Nos.381/2006 & 4 ors Page 8 of 30
7. Sri Subrata Deb 05-3-1990
8. Sri Debabrata Majumder 11-11-1990
9. Sri Asim Bhowmik 09-4-1990
10. Sri Debabrata Pal 09-11-1990
11. Sri Pijush Kanti Paul 06-4-1990
12. Sri Sushanta Das 06-4-1990
13. Sri Dilip Kumar Debnath 06-4-1990
14. Sri Sandip Gan Choudhuri 09-11-1990
15. Smt. Champakali Biswas 09-11-1990
16. Sri Sankar Choudhuri 07-4-1990
17. Sri Sanjib Nandy Majumder 01-12-1990
18. Sri Arindam Deb 14-11-1990
19. Sri Sankar Deb 09-4-1990
20. Sri Krishnendu De 30-11-1990
21. Sri Pradip Kar 09-4-1990
22. Sri Dipankar Bhattacharjee 24-4-1992
23. Sri Sankar Gupta 06-4-1990
24. Smt. Sujapa Hom Ray 07-4-1990
25. Smt. Sibani Das 18-6-1992
26. Sri Sumit Dasgupta 13-11-1990
27. Smt. Soma Dasgupta 18-06-1992
4. On 26-9-1989, the respondent No. 3 issued the employment notice inviting applications from interested candidates for filling up several temporary posts of Junior Engineer (Electrical/Mechanical) on a fixed pay of 1,000/- per month for degree holders and a fixed pay of 800/- for diploma holders. The petitioners appeared in the interview (there was no written examination), were selected and were thereafter appointed in the posts of Junior Engineers (Electrical/Mechanical) for degree holders under the Department of Power, Government of Tripura in the fixed pay of WP(C) Nos.381/2006 & 4 ors Page 9 of 30 1,000/- per month. After their temporary services were extended for one year, the State-respondents through the Joint Secretary to the Government of Tripura, Finance Department issued the Office memorandum dated 3-9- 1992 granting the benefit of regular scale of pay to the petitioners against regular posts. With the concurrence of the Finance Department, the State- respondents through the Deputy Secretary in the Department of Power issued the Office Order dated 22-12-1992 ordering the conversion of 70 posts of "Fixed Pay" Junior Engineer (Electrical) and (Mechanical) with the scale of pay of 2000-4410/- for 25 posts of Junior Engineer (Elect) Grade-I for Degree Holder Electrical Engineer, with the scale of pay of 1450-3710/- for 15 posts of Junior Engineer (Elect) Grade-II for Diploma Holder Electrical Engineers, with the scale of pay of 2000-4410/- for 20 posts of Junior Engineer (Mech) Grade-I for Degree Holder Mechanical Engineers and with the scale of pay of 1450-3710/- for 10 posts of Junior Engineer (Mech) Grade-II for Diploma Holder Mechanical Engineers into regular posts of Junior Engineers with effect from 1-10-1992. Consequently, the 70 posts of "Fixed Pay" Junior Engineers (Elect) & (Mech) stood abolished following the introduction of regular scale of pay for the incumbent in position. Thereafter, by the Office memorandum dated 7-12-1992 issued by the Finance Department, Govt. of Tripura, a higher pay scale of 2100-4530/- as against the existing pay scale of 2000-4410 was granted to Grade-V(a) of Tripura/Engineering Service/Tripura Power Engineering Services.
5. The petitioners were apparently the beneficiaries of this higher pay scale for sometime. They were also from time to time transferred to and posted against the posts held by regular Junior Engineers (Elect/Mech), Grade-I and Grade-II. The Engineer-in-Chief, PWD thereafter issued the memorandum dated 26-12-1992 converting some 30 posts of "Fixed Pay"
Junior engineer (Civil/Mechanical) into regular posts thereby enabling them to get a regular pay scale. Some of the petitioners were also allowed to participate in the departmental examination for being promoted to the grade of Assistant Engineer (Electrical) and passed the examination vide the WP(C) Nos.381/2006 & 4 ors Page 10 of 30 memorandum dated 12-3-1993. However, the Chief Engineer (Electrical) issued the memorandum dated 11-4-1996 declaring that in the event that the pay scale of 2100-4530/- was granted to any Fixed Pay Junior Engineer with effect from 1-4-1993, the excess payment i.e. after calculating the pay in the pay scale of 2000-4410 would stand deducted. This was followed by another Memorandum issued by the Joint Secretary, Govt. of Tripura, PWD declaring that those who had not been absorbed in the cadre service would continue to draw their pay in the pay scale of 2000-4530/- and that the pay scale of 2100-4530/- would, however, be admissible after they were absorbed in the cadre. Similar order was issued by the Engineering Officer, Chief Engineer (Electrical), Tripura in respect of the Diploma Holder Junior Engineer (Electrical) (Ex-cadre).
6. At this stage, it may be noted that a writ petition being WP(C) No.560 of 1999 was filed by some of the petitioners before this Court, which by the order dated 7-12-1999 had directed the State-respondents to allow the petitioners to enjoy the pay scale of 2100-4530/- (Un-revised) and the corresponding revised pay scale from the date of their joining to the posts whichever was later till disposal of the case. It was, however, made clear that such payment would be subject to the condition that in case the petitioners failed in the writ petition, they would refund the excess amount to the Government. It would appear that by the Memorandum dated 6-4- 2000 read with the Corrigendum dated 18-4-2000 issued by the Engineering Officer & Deputy Secretary, PWD applicable to Power Department, the interim order of this Court dated 7-12-1999 was implemented by the State- respondents. Some seven years later, the State-respondents through the Under Secretary, Power Department issued the notification dated 29-10- 2007 deciding for encadrement of 140 ex-cadre Junior Engineers under the Department of Power according to their respective qualifications by relaxing Rule 35 of TPES Rules, 1987 after observance of due codal (sic) formalities including formal concurrence of Tripura Public Service Commission subject to the conditions stated therein. By means of this notification, the WP(C) Nos.381/2006 & 4 ors Page 11 of 30 petitioners were placed en bloc junior to the Junior Engineer already holding the cadre posts in Grade-V(B) of the Tripura Power Engineering Service cadre, and were encadred accordingly with effect from 30-12-2003 and that their past services would be counted for the purpose of finalization of pension. Aggrieved by this, this writ petition has been filed.
7. The writ petition is resisted by the State-respondents by filing their affidavit. According to the answering respondents, the claim of the petitioners for initial higher pay scale of 2100-4530/- with effect from 1-4- 1993 was not admissible simply because they do not belong to the cadre of the Tripura Power Engineering Service; such benefits are extended only to specified cadre service Junior Engineers. The second claim for the revised pay scale of 7450-10300/- is equally not admissible to the petitioners as they were in the pay scale of 2000-4410/-, which was revised to 6500- 12300/- under the ROP Rules, 1999. The petitioners are not entitled to Career Advancement Scheme envisaged in Rule 10 of the ROP Rules, which is applicable only to those employees who have completed 8 years service in the cadre post. Rule 5(xv) of the 15th Amendment to ROP Rules clearly provides that the benefit of CAS is admissible to those Government employees who were recruited through due process of recruitment under the relevant RR. As none of the petitioners were recruited in that manner, they cannot claim CAS. There are three categories of Junior Engineers under the State Government. The first category belongs to Junior Engineers who were recruited by following the due process of recruitment under the Tripura Power Engineering Service (TPES). The second category belongs to Junior Engineers who were recruited in different Departments (other than PWD and Power Departments) in accordance with the relevant R.R. of the respective departments. The third category belongs to Junior Engineers who were engaged without following due process of recruitment under the Tripura Engineering Service Rules or the Tripura Power Engineering Service Rules or duly framed RR for other departments. The petitioners belong to the third category as they were recruited without due process of recruitment under WP(C) Nos.381/2006 & 4 ors Page 12 of 30 the Tripura Power Engineering Service Rules or a duly framed recruitment rules, as the case may be. By the Notification dated 29-10-2007 issued by the Under Secretary, Power Department, Govt. of Tripura, the Government encadred 140 ex-cadre Junior Engineers under the Power Department, which included the petitioners in their respective grades of Junior Engineers of the Tripura Power Engineering Service by one time relaxation of Rule 34 of the TPES Rules, 1987 with effect from 30-12-2003 subject to some conditions stated therein.
8. It is also contended by the answering respondents that the petitioners had been appointed on fixed pay basis between 6-4-1990 and 18- 6-1992 without following the recruitment rules and had never been appointed in the cadre posts under the Tripura Power Engineering Service Rules, 1987. The number of cadre posts is fixed in accordance with the cadre service rules. True, the petitioners were granted regular pay scale w.e.f. 1-10-1992 vide the memorandum dated 3-9-1992, which made it clear that they were entitled to the benefit of regular pay scale with effect from 22- 10-1992 and not before. Cadre strength and cadre service cannot be upset by the conversion of some fixed pay posts into regular post outside the cadre. The mere granting of regular pay scale cannot be equated with the appointment to a regular post in a cadre service. The petitioners cannot expect pay scale attached to the cadre service as they were not borne in the cadre service; there is a gulf of difference between a Junior Engineer in the cadre service and a Junior Engineer outside the cadre service. The extension of the benefit of higher pay scale of 2100-4530/- to Junior Engineers both Mechanical and Electrical in terms of the interim order passed by this Court cannot entitle the petitioners to claim parity with the Junior Engineers in the cadre posts as they are class apart and such benefit is, in any case, subject to final order of this Court. These are the main contentions of the State-respondents in defending the impugned actions/decisions. WP(C) Nos.381/2006 & 4 ors Page 13 of 30
9. Mr. Somik Dev, the learned counsel for the petitioner, in attacking the impugned actions/decisions of the State-respondents has made the following contentions:
a) Though the petitioners were initially appointed on fixed pay basis, a combined reading of the Memorandum dated 3-9-
1992 and the Office Order dated 22-10-1992 granting the benefit of regular pay scale will leave no room for doubt that they have been given the status of a regular Junior Engineer employee with effect from that date, which, ipso facto, entitle them to count their past services for seniority.
b) The fact that they are to fit to be and were from time to time transferred to posts held by the regular Junior Engineers in Mechanical as well as Electrical, Grade-I with regular pay scale speaks volume about their regular status and are not merely holding ex-cadre posts and, as such, they are entitled to parity with the regular Junior Engineers even for the purpose of having common inter se seniority list.
c) Drawing my attention to Rule 2 of the Tripura State Civil Service (Revised Pay) Rules, 1999, the learned counsel submits that this rule in no uncertain terms prescribes that the provisions incorporated in said Rules would apply to all persons appointed in regular pay scales to posts and services in connection with the affirs of the State, and when the petitioners were already granted a regular pay scale, there is no earthly reason to make further classification between the fixed pay Junior Engineers, who were already granted a regular pay scale since 1992, and the regularly appointed Junior Engineers against the cadre posts; this is arbitrary as well as discriminatory and like should be treated alike.
WP(C) Nos.381/2006 & 4 ors Page 14 of 30
d) When the posts held by the petitioners were regularised and were granted regular pay scale, it can be safely said that they became entitled to the pay scale of 2100-4530/- corresponding to the revised pay of 7450-13000/- w.e.f. 1- 4-1993, to the pay scale of 10,000-15100/- and further to the pay scale of 11000-18000/- under CAS-I after their completion of the 17 years of service under the Career Advancement Scheme-I (CAS-I); denial of such benefits is misconceived and illegal.
e) As the respondents were granted the benefit of regular pay scale w.e.f. 1-10-1992, which is otherwise admissible to a regular appointee, they are thus entitled to be included in the cadre of Junior Engineers with effect from the respective dates of their joining the posts; their inclusion in the cadre of Junior Engineers w.e.f. 30-12-2003 is discriminatory, arbitrary and illegal being violative of their fundamental rights guaranteed under Article 14 and 16 of the Constitution of India.
f) Once the petitioners were granted a regular pay scale of Junior Engineer w.e.f. 22-10-1992, their services are also deemed to have been encadred and allowing them to count their past services only for the purpose of pension and not for seniority cannot be sustained in law; this amounts to treating equal as unequal violating Article 14 of the Constitution.
To substantiate his various contentions, the learned counsel for the petitioners relies on the following decisions:- Secretary, State of Karnataka and others Vs. Umadevi (3) and others, (2006) 4 SCC 1; R Hariharan and others Vs. K Balachandran Nair and others, (2000) 7 SCC 399; L Chandrakishore Singh and others Vs. State of Manipur and others (1999) 8 SCC 287; State of U.P. and others Vs. Dr. Deep WP(C) Nos.381/2006 & 4 ors Page 15 of 30 Narain Tripathi and others, (1996) 8 SCC 454; State of W.B. and others Vs. Aghore Nath Dey and others, (1993) 3 SCC 371; Jacob M. Puthuparambil and others Vs. Kerala Water Authority and others, (1991) 1 SCC 28; Direct Recruit Class II Engineering Officers' Association Vs. State of Maharashtra and others (1990) 2 SCC 715; Dr. A K Jain and others Vs. Union of India and others, 1987 (Supp) SCC 497; Narender Chadha and others Vs. Union of India and others, (1986) 2 SCC 157; G S Lamba and others Vs. Union of India and others, (1985) 2 SCC 604 and G.P Doval and others Vs. Chief Secretary, Govt. of U.P. and others (1984) 4 SCC 329. He, therefore, vehemently submits that the petitioners are entitled to all the reliefs claimed in this writ petition, which should be allowed.
10. Refuting the contentions of the learned counsel for the petitioners, Mr. B.C. Das, the learned Advocate General, Tripura, argues that the claim of the petitioners, who were merely appointed on fixed pay basis, for parity with the Junior Engineers who were appointed by due process of recruitment, is absurd and misconceived, and their seniority vis-à-vis the regularly appointed Junior Engineer can be counted for the purpose of seniority only from 30-12-2003; it is a well-settled proposition of law that no retrospective appointment can be granted nor can any seniority be granted on retrospective basis from a date when an employee has not even borne in the cadre particularly in a case such as this when this would adversely affect the seniority of those appointees who have been validly appointed in the meantime. He maintains that the benefit of career advancement scheme (CAS), which is conceived to address the grievance of those who could not get promotion even after serving in their posts for years and years altogether, can be granted only to those completed the qualifying service in a regular post and not to the petitioners, whose services were encadred only in 2003. To fortify his submissions, the learned Advocate General relies on the decisions of the Apex Court in Secretary, State of Karnataka and others Vs. Umadevi (3) and others, (2006) 4 SCC 1; Ran Sing Malik Vs. State WP(C) Nos.381/2006 & 4 ors Page 16 of 30 of Haryana and others Vs. State of Haryana and others, (2002) 3 SCC 182; T. N. Administrative Service Officers Association and another Vs. Union of India and others, (2000) 5 SCC 728 and Direct Recruit Class II Engineering Officers' Association Vs. State of Maharashtra and others (1990) 2 SCC 715. Contending that there is no merit in the contentions of the learned counsel for petitioners, the learned Advocate General seeks the dismissal of the writ petitions.
11. After giving my earnest consideration to the rival submissions advanced by the learned counsel appearing for the rival parties, it becomes obvious that the first question for consideration in this writ petitions is whether the petitioners can count their seniority with effect from 1-10-1992 when their appointment as Fixed Pay Junior Engineers was converted into regular posts of Junior Engineers or with effect from 30-12-2003 when their ex-cadre posts of Junior Engineer were en-cadred in the respective grades of Tripura Power Engineering Service? To answer this question, it will be beneficial to reproduce below a typical appointment order of the petitioners:
"Dated, Agartala, the 19th Dec.'89 OFFICE ORDER Subject: Offer of appointment to the post of Fixed-Pay J.E.(E) (Degree holder)/J.E.(M) (Degree Holder)/JE(E)(Diploma-holder)/JE(M)(Diploma holder).
Shri Dilip Debnath S/o Lakshmi Narayan, p.o. Ranirbazar, Jirania is hereby offered a purely temporary post of Fixed Pay J.E.(EL)(Degree holder) under the Department of Power, Govt. of Tripura at Rs. 1000/- (fixed) per month.
2. The terms and conditions of appointment are as follows:-
i) The appointment is purely on a temporary basis and will not confer any title to permanent employment.
ii) The appointment may be terminated at any time by a month's notice given by other side, namely, the appointee or the appointing authority, however, reserves the right of WP(C) Nos.381/2006 & 4 ors Page 17 of 30 terminating the services of the appointee forthwith or before the expiry of the stipulated period of notice by making payment of a sum equivalent to the pay and allowances for the period of notice or the unexpired portion thereof.
iii) The appointment carries with the liability to serve in any part of the State of Tripura.
iv) Other conditions of service will be governed by the relevant rules and orders in force from time to time.
3. The appointment will be further subject to:-
* * *
(Omitted as irrelevant)
12. It may be noted that the State-respondents had earlier vide the memorandum dated 26-9-1989 created a total number of 70 temporary posts of Fixed Pay Junior Engineer (Electrical and Mechanical) for graduates and Junior Engineer (Electrical & Mechanical) for Diploma holders for a period up to the end of February, 1990 i.e. 28-2-90. From this Memorandum, there can be no room for doubt that the posts were created only for a period of one year. On the basis of this post creation order, an employment notice was issued on 26-9-1989 inviting applications from unemployed Degree/Diploma holders in Electrical/Mechanical Engineering for filling up the said Fixed Pay posts. The petitioners admittedly applied for and were appointed for the posts in question at 1,000/- per month for a period of one year by the order dated 5-4-1990 and the appointments were extended for another one year as evidenced from the order dated 7-5-1991. This was followed by the Office Memorandum dated 3-9-1992 issued by the State-respondents through the Joint Secretary, Finance Department granting the benefit of regular scale of pay to the petitioners. Apparently, on the basis of this Office Memorandum, the Office Order dated 22-10-1992 was issued by the Deputy Secretary, Power Department ordering the conversion of 70 posts of 70 Fixed Pay Junior Engineer (Electrical and Mechanical into regular posts of Junior Engineer (Elect/Mech) w.e.f. 1-10- 1992. Incidentally, the Finance Department issued an Office Memorandum WP(C) Nos.381/2006 & 4 ors Page 18 of 30 on 7-12-1992 granting higher pay scales to some grades under the Tripura Agricultural Service, Tripura Veterinary Service, Tripura Diary Service and also to Grade-V(a) under the Tripura Engineering Service/Tripura Power Engineering Service from 2000-4410/- to 2100-4530/-. On the basis of the said OM, the Office of the Chief Engineer, Electrical, issued the Office Order dated 8-4-1993 granting the enhanced pay scale of 2100-4530/- to the petitioner No. 9, 11, 24 and 27. By another Office Order dated 16-4- 1993 issued by the Superintending Engineer, Electrical Circle No. 1, Agartala, the petitioner No. 13 and 25 were also granted the enhanced pay scale of 2100-4530/-. Thereafter, the Chief Engineer, Electrical issued the Memorandum dated 11-4-1996 declaring that the Fixed Pay Junior Engineer (Elect/Mech) Degree Holder and were subsequently allowed the regular pay scale 2000-4410/- w.e.f. 1-10-1992 should continue to draw such pay scale and that if any J.E. (Elect/Mech) degree holder had drawn the pay scale of 2100-4530/-, the excess payment was to be recovered from their pay bills. This was followed by another letter dated 16-71999 of the Joint Secretary, Finance Department addressed to the Deputy Secretary/PWD with a copy endorsed to all the Chief Engineers clarifying that the pay scale of 2000-4410/- would continue to be drawn by those who had not been absorbed in the Cadre Services and the pay scale of 2100-4530/- would be admissible to them after their absorption in the Cadre. It was also clarified therein that even Diploma Holder Junior Engineer (Elect & Mech) would be eligible for the next pay scale of 2000-4410/- on their completion of 4 years of service in the post and that the Diploma Holder would become entitled to the pay scale of 2100-4530/- only after their absorption in their respective Cadre Service. This prompted some of the affected petitioners to approach this Court in WP(C) No. 560/99 and others whereupon this Court, as already noticed, passed the said interim order allowing the petitioners therein to continue to enjoy the higher pay scale of 2100-4530/- till disposal of the writ petition. Ultimately, the impugned order dated 29-10- WP(C) Nos.381/2006 & 4 ors Page 19 of 30 2007 was issued by the Under Secretary, Power Department, and the relevant portion whereof reads thus:
"N O T I F I C A T I O N The Governor of Tripura has been pleased to decide for en-cadrement of 140 (one hundred and forty) Ex-cadre Junior Engineers under the Department of Power, as per Annexure-1 attached to the respective grades of Tripura Power Engineering Service (TPES) according to respective qualification, by relaxation of Rule 35 of TPES rules, 1987 as amended in 2007 after observance of due codal formalities including formal concurrence of Tripura Public Service Commission subject to the following conditions:-
i) The concerned Junior Engineer will be placed en bloc junior to the Junior Engineers already holding cadre posts in Group-V(A) and Group- V(B) of the TPES cadre.
ii) They may be encadred with retrospective effect not earlier than 30-12-2003.
iii) Their service position would be made as per normal rules of seniority.
iv) Their past services would be counted for the purpose of finalisation of their pension.
v) Their pay will be fixed as per rules.
vi) Reservation Rules should be followed.
2. The present vacancies of 97 (ninety seven) posts against total creation of 237 fixed pay posts vide Office Order No. F-6(53)-CEE/8920.566-89 dated 26-9-1989 and No. F 27(22) CEFWC/89/(S-I)/2.236-61 dated 02-06-1997 are deemed to have lapsed with immediate effect.
3. Of the remaining 140 (one hundred and forty) posts, the posts falling vacant on en-cadrement of incumbent Junior Engineer shall be deemed to have lapsed with effect from the date of order of their en-cadrement as may be issued by the Department of Power separately."
13. P.Ramanatha Aiyar's "The Major Law Lexicon", 4th Edn., defines the term "en-cadrement" as "to include in the cadre". This then begets the question as to what exactly is the term "cadre". The same Law Lexicon WP(C) Nos.381/2006 & 4 ors Page 20 of 30 defines the terms "cadre" in the following manner: "Ordinarily, the word 'cadre' means the strength of a service or a part of the service so determined by the Government constituting the post therein." The members of the Engineering Services of the Department of Power, Govt. of Tripura are governed by a set of rules called "Tripura Power Engineering Service Rules", 1987, which was amended in 2007. The expression "Members of the Services", as defined by Rule 2(e), means the officer(s) appointed or deemed to have been appointed in the Tripura Power Engineering Services under the provisions of the rules. As per Rule 2(f), it is clear that there are five grades of Tripura Power Engineering Service, namely, Grade-I, Grade-II, Grade-III, Grade-IV and Grade-V in the Tripura Power Engineering Service. The term "Service" as defined in Rule 2(g) means Tripura Power Engineering Service, whereas the term "Schedule" means Schedule attached to the rules. Part-III of the Rules deals with the constitution of the Service. Rule 5 says that the existing incumbents holding any of the posts on a regular basis mentioned in the schedule irrespective of whether permanent or officiating or temporary shall be deemed to have been included in the respective grade(s) of the service from the date of publication of the rules in the Tripura Gazette, unless they exercise option to remain outside the service within 45 (forty- five) days from the date of publication of the rules in the Tripura Gazette. It further says that the option once exercised shall be final; that the appointing authority shall have the power to accept or reject any option thus exercised and his decision in the matter shall be final and that the option shall be exercised in the form prescribed in the first schedule appended to the rules. Grade-V of the Tripura Power Engineering Service, as per the Schedule, consists of Junior Engineer (Elect), Junior Engineer (Civil), Junior Engineer (Electronics) and Junior Engineer (Mech). The entire strength of the service was 310 including Deputationist, Leave Reserve and Training.
14. This then takes me to the meaning of the term "Cadre Post" which is not, however, defined in the Rules. In O.P. Sinla v. UOI, (1984) 4 SCC 450, the Apex Court, in the context of Delhi Higher Judicial Service Rules, 1970, WP(C) Nos.381/2006 & 4 ors Page 21 of 30 defined the term "Cadre Post" as any post specified in the schedule and includes a temporary post carrying the same designation as that of any of the post declared as cadre post by the administrator. In my opinion, with due respect, the same definition will apply in the instant case. As to how recruitment to the post of Junior Engineer is to be made, Rule 6(F) of the rules as amended in 1987 provides that both Degree holders and Diploma holders will be recruited initially as Jr. Engineers and that recruitment shall be made 100% by direct recruitment through Tripura Public Service Commission. As already indicated, it was on the basis of the impugned order dated 29-10-2007 that the petitioners were en-cadred to the cadre posts of Junior Engineer Grade-V(A)/(B) of the Tripura Power Engineering Service with effect from by relaxation of Rule 35 of the TPES Rules, 1987. The fact that the petitioners were granted a regular pay scale on conversion of fixed pay Junior Engineer into regular posts of Junior Engineer does not automatically result in their encadrement in, or their becoming members of, the Tripura Engineering Service with effect from 22-10-1992. The concept of regularization and encadrement are not one and the same thing. It is only after their encadrement that they become members of the service. Thus, from the above analysis, the following indisputable facts have emerged:
i. The petitioners were never appointed in accordance with Rule 6(F) of the Rules, which envisages any recruitment to the post of Degree Holder as well as Diploma Holder Junior Engineer by direct recruitment through Tripura Public Service Commission; they were appointed only for a period of one year not by the TPSC.
ii. They were not even initially paid a regular pay scale but were appointed on a fixed pay of 1,000/- per month whereas the post of Junior Engineer carried the regular pay scale of 2000-4410/- per month; it was only after 22-10-1992 that they were granted a regular pay scale of 2000-4410 though some of them were also granted the pay scale of 2100- 4530/-, which benefit was also subsequently withdrawn but for the intervention of this Court.
WP(C) Nos.381/2006 & 4 ors Page 22 of 30 iii. It was only on 29-10-2007 that the petitioners were by the impugned order encadred as Junior Engineer of the Tripura Power Engineering Service with effect from 30-12-2003 thereby making it crystal clear that they become members of the Tripura Power Engineering Service with effect from the latter date and not before.
iv. The petitioners before issuing the impugned order were merely holding ex-cadre posts and were never members of the Tripura Power Engineering Service.
15. From the findings made by me, the question to be decided is whether the services rendered by the petitioners prior to 29-10-2007 when they were encadred as Junior Engineers of the TPES can be counted for the purpose of seniority. It is now well settled by various decisions of the Apex Court that retrospective seniority cannot be given to an employee from a date when he was not even born in the cadre. So also, seniority cannot be given with retrospective effect so as to adversely affect others. Seniority amongst members of the same grade must be counted from the date of their initial entry into the grade. If any authority is needed, I may conveniently cite the latest decision of the Apex Court in P. Sudhakar Rao v. U. Govinda Rao, (2013) 8 SCC 693. The relevant portions are found at paras 44, 45, 46, 47, 48, 50 and 51, which are reproduced below:
"44. As far as the impact of the retrospective operation of the executive instructions or statutory rules on the seniority of employees is concerned (including the Junior Engineers before us), this issue is now settled by a few recent decisions of this Court. There is no doubt that retrospective operation can be given to statutory rules such as the Andhra Pradesh Engineering Service Rules. But, the retroactivity must still meet the test of Article 14 and Article 16 of the Constitution and must not adversely trench upon the entitlement of seniority of others.
45. Without intending to multiply precedents on this subject, reference may be made to a decision rendered by this Court more WP(C) Nos.381/2006 & 4 ors Page 23 of 30 than two decades ago. In State of Bihar & ors, etc v. Akhouri Sachindra Nath and others13 it was held that retrospective seniority cannot be given to an employee from a date when he was not even borne in the cadre. So also, seniority cannot be given with retrospective effect so as to adversely affect others. Seniority amongst members of the same grade must be counted from the date of their initial entry into the grade. It was held:
"12. In the instant case, the promotee Respondents 6 to 23 were not born in the cadre of Assistant Engineer in the Bihar Engineering Service, Class II at the time when Respondents 1 to 5 were directly recruited to the post of Assistant Engineer and as such they cannot be given seniority in the service of Assistant Engineers over Respondents 1 to 5. It is well settled that no person can be promoted with retrospective effect from a date when he was not borne in the cadre so as to adversely affect others. It is well settled by several decisions of this Court that amongst members of the same grade seniority is reckoned from the date of their initial entry into the service.
In other words, seniority inter se amongst the Assistant Engineers in Bihar Engineering Service, Class II will be considered from the date of the length of service rendered as Assistant Engineers. This being the position in law Respondents 6 to 23 cannot be made senior to Respondents 1 to 5 by the impugned government orders as they entered into the said service by promotion after Respondents 1 to 5 were directly recruited in the quota of direct recruits. The judgment of the High Court quashing the impugned government orders made in Annexures 8, 9 and 10 is unexceptionable."
13 1991 Supp (1) SCC 334 WP(C) Nos.381/2006 & 4 ors Page 24 of 30
46. This decision was cited with approval, a few years ago, along with the decision rendered in Keshav Chandra Joshi v. Union of India14. This Court held that when a quota is provided for, then the seniority of the employee would be reckoned from the date when the vacancy arises in his/her quota and not from any anterior date of promotion or subsequent date of confirmation. It was observed that injustice ought not to be done to one set of employees in order to do justice to another set. It was said in Uttaranchal Forest Rangers' Assn. (Direct Recruit) v. State of U.P.15, on referring to these judgments that:
"37. We are also of the view that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to adversely affect the direct recruits appointed validly in the meantime, as decided by this Court in Keshav Chandra Joshi v. Union of India held that when promotion is outside the quota, seniority would be reckoned from the date of the vacancy within the quota rendering the previous service fortuitous. The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or subsequent confirmation. In order to do justice to the promotees, it would not be proper to do injustice to the direct recruits. ...
38. This Court has consistently held that no retrospective promotion can be granted nor can any seniority be given on retrospective basis from a date when an employee has not even been borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validly in the meantime."
14 1992 Supp (1) SCC 272 15 (2006) 10 SCC 346 WP(C) Nos.381/2006 & 4 ors Page 25 of 30
47. However, the mere existence of a vacancy is not enough to enable an employee to claim seniority. The date of actual appointment in accordance with the required procedure becomes important in such a case. This was so held in State of Uttaranchal v. Dinesh Kumar Sharma16 (followed in Nani Sha v. State of Arunachal Pradesh17, wherein it was said:
"34. Another issue that deserves consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited. Here the respondent's contention is that since the vacancy arose in 1995-1996 he should be given promotion and seniority from that year and not from 1999, when his actual appointment letter was issued by the appellant. This cannot be allowed as no retrospective effect can be given to the order of appointment order under the Rules nor is such contention reasonable to normal parlance. This was the view taken by this Court in Jagdish Ch. Patnaik v. State of Orissa18."
48. More recently, and finally, in Pawan Pratap Singh v. Reevan Singh19 all relevant precedents on the subject were considered, including the Constitution Bench decision in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra20 and the legal position summarised (by Lodha, J.) as follows:
"(i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.
16 (2007) 1 SCC 683 17 (2007) 15 SCC 406 18 (1998) 4 SCC 456 19 (2011) 3 SCC 267 20 (1990) 2 SCC 715 WP(C) Nos.381/2006 & 4 ors Page 26 of 30
(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime."
* * * *
50. The facts of the appeals before us show that at least some of the Supervisors were given retrospective seniority on the date when they were not even eligible for appointment as Junior Engineers. The precedents referred to above show that this is impermissible. In addition as pointed out by the High Court, there is no indication of the vacancy position, that is, whether the Supervisors could be adjusted in the grade of Junior Engineers from the date on which they were given notional retrospective seniority. There is also no indication whether the quota of vacancies for Supervisors was WP(C) Nos.381/2006 & 4 ors Page 27 of 30 adhered to as on the date on which they were given notional retrospective seniority. The case law suggests that this is an important factor to be considered. Finally, it is quite clear that the grant of retrospective seniority to the Supervisors has adversely impacted on the promotion chances of the Junior Engineers by bringing them down in seniority. This too is impermissible.
51. From the various decisions referred to and from the facts of the case, it is clear that to pass the scrutiny of Article 14 of the Constitution, the seniority of the Supervisors should be reckoned only from the date on which they satisfied all the real and objective procedural requirements of the Andhra Pradesh Engineering Service Rules and the law laid down by this Court. This has not happened in the present appeals creating a situation of unreasonableness and unfairness."
16. In the case before me, considered against the parameters laid down by the Apex Court in P. Sudhakar case (supra), I have no hesitation to hold that the seniority of the petitioners can be counted only with effect from 30- 12-2003 when they came to be encadred in the Tripura Power Engineering Service; it is only after this that they became members of the service as defined in Rule 2(e) of the Tripura Power Engineering Service. Granting of regular pay scale Junior Engineer in 1992, without any more, cannot be equated with encadrement in the TPES. Till their services were encadred in the TPES, they were simply holding ex-cadre posts of Junior Engineer; the posts held by them prior to 30-12-2003 was outside the cadre of Junior Engineer contemplated in the schedule to the rules. To include the petitioners in the common inter se seniority list of the Junior Engineers who were already borne in the cadre and adversely affecting their seniority will be to facilitate reverse discrimination against the latter; all they can ask for is to be placed en bloc below those regularly appointed Junior Engineers and nothing more. In the view that I have taken, I do not think that the WP(C) Nos.381/2006 & 4 ors Page 28 of 30 respondent authorities have acted illegally in not counting the past services rendered by the petitioners in the ex-cadre posts of Junior Engineer for the purpose of seniority and in deciding to count their services from the date of their respective encadrement in the TPES.
17. Coming now to the question as to whether the petitioners are entitled to the benefit of CAS (interestingly no relief is claimed in the writ petition), the contentions made by the learned counsel for the petitioners are, to my mind, ill-conceived and misconceived. The concept of Career Assured Scheme is introduced with a view to provide safety net to deal with problems of genuine stagnation, frustration and hardship faced by the employees due to lack of adequate promotional avenue. For example, CAS, in the very nature of the scheme, is not and cannot be extended to casual employees including those granted 'temporary status' or employees appointed in the Government only on ad hoc or contract basis. It is only when the petitioners became members of the TPES in 2007, the question of promoting them to a higher post would arise and not before; it is, therefore, absurd for them to claim CAS-1. After all, the period of service rendered by them in the ex-cadre posts of Junior Engineer prior to their encadrement cannot obviously be counted for the purpose of promotion, much less, for the purpose of CAS-1.
18. The offshoot of the foregoing discussion is that there is no merit in any of these writ petitions, which are, accordingly, dismissed. The parties are, however, directed to bear their respective costs. It is, however, made clear that it shall be open the respondent authorities to count the past services of the petitioners prior to their encadrement for the purpose of seniority without affecting the rights of third parties such as those Junior Engineers who were appointed in accordance with the recruitment rules. WP(C) No. 381 of 2006 WP(C) Nos.381/2006 & 4 ors Page 29 of 30
19. In this writ petition, there are five petitioners, who were, like the petitioners in WP(C) No. 136 of 2006, appointed as Junior Engineers in the Power Department on various dates between 26-11-1990 and 7-12-1990 on the same terms and conditions and on fixed pay basis. They are seeking similar reliefs. Consequently, my decision in WP(C) No. 136 of 2006 will govern their case. The petitioners are, accordingly, not entitled to the reliefs claimed. The writ petition is, therefore, dismissed. WP(C) No. 383 of 2006
20. In this writ petition also, there are three petitioners who were, like in the foregoing cases, appointed as Junior Engineer in the erstwhile Power Department on various dates between 9-4-1990 and 17-4-1990 on the same terms and conditions and on fixed pay basis. They are also seeking similar reliefs. As in the previous cases, there is no merit in their writ petition, which is hereby dismissed but without costs.
WP(C) No. 134 of 2007 and WP(C) No. 382 of 2006
21. In these two writ petitions, all these 14 petitioners were also appointed on the same terms and conditions on fixed pay basis on various dates between 14-4-1990 and 2-5-1990, but under the Public Works Department. They are also seeking similar reliefs claimed by the petitioners in the previous cases. After considering their cases, I have no doubt in my mind that my earlier decisions rendered in the context of Power Department will equally apply to the facts of these two cases. The writ petitions are, therefore, without merit and are dismissed.
CHIEF JUSTICE Sukhendu WP(C) Nos.381/2006 & 4 ors Page 30 of 30