Tripura High Court
Sri Rupan Debbarma vs The State Of Tripura on 20 February, 2018
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
WP(C) 175 of 2015
Sri Rupan Debbarma,
son of late Alak Debbarma,
resident of Ujan Abhoynagar,
P.O. Ujan Abhoynagar,
P.S. East Agartala,
District : West Tripura,
PIN : 799005
............Petitioner
- Vs -
1. The State of Tripura,
represented by the Secretary-cum-Commissioner,
Government of Tripura, R.D. Department,
Civil Secretariat, New Capital Complex,
P.O. Kunjaban, P.S. New Capital Complex,
Agartala, District : West Tripura, PIN : 799006
2. The Chief Engineer,
Rural Development Department, P.O. Kunjaban,
P.S. New Capital Complex, Agartala,
District : West Tripura, PIN : 799006
3. Sri Tarun Kanti Debnath,
Chief Engineer, R.D. Department,
Pandit Nehru Complex, Agartala,
Gorkhabasti, P.O. Kunjaban,
P.S. New Capital Complex,
Agartala, District : West Tripura,
PIN : 799006
............Respondents
BEFORE THE HON‟BLE MR. JUSTICE S. TALAPATRA For the petitioner : Mr. Somik Deb, Advocate For the respondents : Mr. S. Chakraborty, Addl. G.A. Date of hearing : 13.02.2018 Date of delivery of Judgment and Order : 20.02.2018 Whether fit for reporting : YES Page 1 of 13 WP(C) 175 of 2015 Judgment and Order By way of amendment in the writ petition originally filed being WP(C) No. 175 of 2015, the petitioner has challenged his exclusion from consideration of promotion to the post of Superintendent Engineer in the Rural Department, Government of Tripura. For that purpose, the petitioner has relied the minutes of the DPC meeting held on 26.07.2009 [Annexure-8 to the writ petition]. Since, the exclusion according to the petitioner, is premised wrongly, the petitioner is entitled to get promotion to the post of Superintendent Engineer with effect from 21.10.2008 from the same date when the respondent No.3 was so promoted against a vacancy, ear-marked for the UR category.
2. There is no dispute that during that exercise, one vacancy was clearly available to be filled up from the ST candidates. For purpose of reference, the relevant part of the minutes of the said DPC meeting is extracted hereunder :
"3. According to the information made available to the Group-A, DPC through the Self contained Note forwarded vide letter No.F.1(193)-SE/RDC/08-09/723- 24 dated 09.06.2009, it appears that there are 03(three) Nos. of sanctioned posts of Superintending Engineer, Group-A, Gazetted and as per Inspection Report of the 100 point Roster, all posts are vacant and all these 03(Three) posts are under the promotion quota which are given as follows :
Sanctioned Category wise Vacancies
Strength
SC ST UR Total
03 - 01 02 03
(RP No-2) (RP No-1 & 3)
4. There are Notified Recruitment Rules for the post of Superintending Engineer vide Notification No. F.8(3)- RD/2003/2676-2833 dated 28.11.2003. The method of recruitment is 100% by promotion from the post of Executive Engineer of Rural Development Department failing which by deputation/transfer. Executive Page 2 of 13 WP(C) 175 of 2015 Engineers having a degree in Engineering and 7 (seven) years service in the grade will be eligible for promotion to the post of Superintending Engineer.
5. As per provision laid down in Para 2:1:1 of the Office Memorandum No. F.22011/5/86-ESTT.D. dated 10th March, 1989 issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, as adopted by the Government of Tripura vide Appointment & Services Department (Now GA (P&T) Department) Memo No. 11(1)-GA(P&T)/92 dated 10th June, 2004, for 3 (three) posts of Superintending Engineer 10 (ten) eligible Officers may come in the zone of consideration for promotion. But in the instant case only 2(two) Officers have completed 7(seven) years regular services in the grade of Executive Engineer and come under zone of consideration for promotion as per Recruitment Rules.
6. According to the final Seniority list published vide Memorandum No. F.1(93)-SE/RDC/2007-08/310 dated 12.05.2008, only the following 02 (two) Executive Engineers (Degree Holders) come in the zone of consideration for promotion.
SL. Name of Seniority Sl. Category Whether Passed
No. Officials No. Departmental
Examination
1. Sri Tarun 1 UR Passed
Kanti Debnath
2. Shri Rupan 2 ST Not Passed
Debbarma
7. As per provision of R.D. Department Engineering Officers Training and Departmental Examination Rules, 2005 issued vide Notification No. F.1(61)-
SE/RDC/04/451-60 dated 20.06.2005, the case of Shri Rupan Debbarma would not be considered for promotion as he has not passed Departmental Examination."
3. Mr. Somik Deb, learned counsel appearing for the petitioner has succinctly submitted that one vacancy was available to be filled up from the ST Executive Engineers. The petitioner was the sole Executive Engineer (ST) in the Department in the grade of the Executive Engineer. Even though, the petitioner was otherwise fit for promotion to the post of Superintendent Engineer in the Rural Development Department but he was excluded from consideration as he did not pass the departmental examination. By the notification dated 28.11.2003 [Annexure-5 to the writ petition], the Recruitment Rules for the post of Page 3 of 13 WP(C) 175 of 2015 Superintendent Engineer under the Rural Development was published and there was no embargo that an Executive Engineer could not be promoted if he had not passed the departmental examination. That apart, the State Government may by order for reasons to be recorded in writing and in consultation with the Tripura Public Service Commission, relax any of the provisions of the said rules with respect to any class or category of persons.
4. Mr. Deb, learned counsel has further submitted that the said Recruitment Rules were suppressed by a fresh set of Recruitment Rules which was published by the notification dated 24.12.2010 [Annexure R/3 to the reply filed by the respondents]. In Rule-11 of the subsequent Recruitment Rules for the post of Superintendent Engineer under the Rural Development Department, a new provision in addition to the provisions as was available in the former Recruitment Rules has been added. The added provision reads as under :
"(ii) The candidate should have passed the
Departmental Examination prescribed by the
Government from time to time."
That apart, in terms of the repealed Rules as well as the present Rules, the Executive Engineer having seven years of regular service in the grade would be eligible for promotion to the post of the Superintendent Engineer. As it is evident that the petitioner was engaged as the Executive Engineer by the notification dated 23.05.2002 [Annexure-2 to the writ petition] and he had joined in the said post on 27.05.2002, he had completed the required seven years of the qualifying service on 26.05.2009, much before the DPC had considered his case in the wrong premises.
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WP(C) 175 of 2015
5. Mr. Deb, learned counsel has submitted that the Recruitment Rules as published in the year 2010 was not given the retrospective operation and it had come into force from the date of its publication in the official gazette. Thus, the said Recruitment Rules did not come into effect before 24.12.2010 and hence, when the DPC was considering the case of the Executive Engineers for purpose of their promotion to the post of Superintendent Engineer in terms of the prevalent Recruitment Rules, there was no requirement of passing the departmental examination as prescribed by the government.
6. Mr. Deb, learned counsel has further submitted that before the new Recruitment Rules which was published by the notification dated 24.12.2010 came into force, the rules called the Rural Development Departmental Engineering Officers (Training and Departmental Examination) Rules, 2005 [part of Annexure R/5] came into force with effect from 02.07.2005, as on that date the said rules were published in the official gazette.
7. Mr. Deb, learned counsel has drawn the notice of this court to the averment of the petitioner in Para-31, where the petitioner has stated clearly as follows :
"Even though, the Notification bearing reference No. F.1(61)-SE/RDC/04/451-60 dated 20.06.2005 was published in the official Tripura Gazette on the Extra- Ordinary Issue dated 02.07.2005 (Annexure-R/5 to the Counter Affidavit), but to the best knowledge of the petitioner, the same was not issued, with prior consultation with the TPSC."
And thus, the said rules is invalid in the eye of law as the consultation is compulsory. Any rules required consultation is made without consultation are bound to be inoperative and inapplicable inasmuch as the said rules had come into existence in derogation of Page 5 of 13 WP(C) 175 of 2015 the constitutional provisions as laid down in Article 320. In this regard, Mr. Deb, learned counsel has relied on a decision of this court in Soumitra Chakma versus State of Tripura and Others reported in (2017) 2 TLR 143 where this court discussing the relevant apex court judgment has held as under :
"14. In this regard, this court is of the view that the scope and ambit of Section 33 of the CCS (CC & A) Rules, 1965 has fallen to various interpretations. In T.V. Patel (supra) the apex court has observed that when the advice of the Public Service Commission is acted upon, the copy of such advisory shall be tendered to the government servant. In T.V. Patel (supra), having noted the language employed in Rule 32, namely „along with a copy of the order passed in the case, by W.P.(C) No.1198 of 2016 Page 17 of 24 [17] the authority making the order‟ it has been held that, that would mean the final order passed by the authority imposing penalty on the delinquent government servant. But in State of U.P. vs. Manbodhan Lal Srivastava, reported in AIR 1957 SC 912, the apex court has held that such provisions do not confer any rights on the public servant in the absence of consultation or any irregularity in consultation process or for not furnishing a copy of the advice tendered by the UPSC or to get the cause of action challenging the action in a court of law inasmuch as the provision of Article 320(3)(c) of the Constitution of India are not mandatory in nature. In Union of India and others vs. S.K. Kapoor, reported in (2011) 4 SCC 589 the apex court had accepted the ratio laid down in the case of T.V. Patel (supra) in so far as the interpretation of Article 320(3) (c) is concerned and, in that context, it has been observed that the provisions contained in the said Article 320(3) (c) of the Constitution are mandatory. While distinguishing certain aspects, the apex court had observed as under:
"7. We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V. Patel's case is clearly distinguishable."
8. Mr. Deb, learned counsel has further submitted that Article 320(3)(a) can similarly be understood as the language of Article 320(3)(c)is identically grafted. Article 320(3) provides that :
"(3) The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted-Page 6 of 13
WP(C) 175 of 2015
(a) On all matters relating to methods of recruitment to civil services and for civil posts.
(c) On all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters."
[Emphasis added]
9. According to Mr. Deb, learned counsel appearing for the petitioner both the transactions under Article 320(3)(a) and 320(3)(c) are compulsory in nature. As the respondents did not disclose anything whether there was any consultation with the Public Service Commission or not, it has to be deemed that no such consultation was there and hence the said Rural Development Departmental Engineering Officers (Training and Departmental Examination) Rules, 2005 cannot be held to be valid, even though, the said rules has not been categorically challenged in this writ petition.
10. Reliance has also been placed on Keshav Chhandra Joshi and Others versus Union of India and Others reported in (1992) Supp (1) SCC 272 where the apex court has held that :
"The word "may" consult the Commission has been used in the context of discharge of statutory duty. The Governor is obligated to consult the Public Service Commission. Therefore, the word "may" must be construed to mean "shall" and it is mandatory on the part of the Governor to consult the Public Service Commission before exempting or relaxing the operation of rule regarding conditions of the service of a member to relieve him from undue hardship and to cause just and equitable results. There is a distinction between "rules of recruitment" and "conditions of service".
11. Mr. Deb, learned counsel has also relied another decision of the apex court in Dinkar Anna Patil and Another versus State of Maharashtra and Others reported in (1999) 1 SCC 354 to contend that by means of interpretation, very object of the constitutional provision cannot be relegated. In Dinkar Anna Patil (supra) the apex court has observed as under :
Page 7 of 13
WP(C) 175 of 2015 "The Tribunal held that the word "may" used in this Rule is directory but in our considered view, to give such a meaning would render the very object of consultation with the MPSC wherever necessary nugatory. It would give unbridled power to the Government to dispense with the consultation with MPSC which may result into arbitrary exercise of the powers by the authority. This could never be the object of Rule 4-A. In our considered view, the word "may" must mean "shall" and this is also obvious from the correspondence between the State Government and MPSC. The Government of Maharashtra wanted to relax the quota rule but MPSC was not agreeable and ultimately it relented to the request of the Government of Maharashtra and suggested amended Rule 4-A. This suggestion was accepted and accordingly the amendment was inserted in the Rules. We also find support to our view from the decision of the apex court in Keshav Chandra Joshi and Ors. v. Union of India and Ors. In that decision, [Keshav Chandra Joshi and Ors. v. Union of India and Ors.] the apex court was making out interpretation of Rule 27 of U.P. Forest Service Rules, 1952 and the said rule is similar to Rule 4-A. While construing the word "may" used in Rule 27, the apex court held that the word "may" has to be read as "shall" and, therefore, consultation is mandatory. It must, therefore, follow that MPSC gave its approval to the relaxation vide its letter dated 28.03.1989 but by that time, several appointments of the departmental candidates on similar terms in the cadre of Sales Tax Officers Class-I were made exceeding the quota rule. As far as the regularization process is concerned, it is quite clear from the letter dated 28.03.1989 by MPSC to the Secretary, Finance Department calling upon the latter to furnish the details about the availability of posts yearwise with confidential records thereof in order to enable the Commission to take the decision on the pending select list and to regularize the promotions of the Sales Tax Officers Class-I from 1982 to 31.12.1986."
12. Having regard to Dinkar Anna Patil(supra), the provisions should be interpreted in the equal manner if in one case one interpretation has been adopted unless it is reviewed or recalled, the said interpretation can also be borrowed for interpreting the provisions pari materia. Hence Mr. Deb, learned counsel appearing for the petitioner has submitted that the petitioner has categorically averred that while the Rural Development Departmental Engineering Officers (Training and Departmental Examination) Rules, 2005 was promulgated, no consultation with the Public Service Commission was Page 8 of 13 WP(C) 175 of 2015 carried out and as such, there was a substantive procedural breach, for which the said Rules are bound to be inoperative for all purposes.
13. From the other Mr. S. Chakraborty, learned Addl. G.A. appearing for the respondents has submitted that there is no record to show that while enacting the said Rural Development Departmental Engineering Officers (Training and Departmental Examination) Rules, 2005 there was consultation with the Public Service Commission in terms of Article 320(3)(a). Since the said Rules have not been challenged by the petitioner or any other person, the constitutionality of the said Rules has to be deemed and no contrary interpretation would therefore be valid. That apart, Mr. Chakraborty, learned Addl. G.A. has submitted that the said rules i.e. Rural Development Departmental Engineering Officers (Training and Departmental Examination) Rules, 2005 cannot be relegated to nothingness inasmuch as the said rules has categorically observed as under :
"15. No officer would be considered for confirmation in the grade and promotion to the next higher grade if he does not pass the Departmental examination in all papers."
14. According to Mr. Chakraborty, learned Addl. G.A. this rule has the force of law inasmuch as the said rules were also framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. The said rule being the subsisting rule will have its substantive force governing the relevant transaction. Mr. Chakraborty, learned Addl. G.A. has further submitted that since the petitioner did not pass the departmental examination, he was not considered as fit for the post of the Superintendent Engineer in the Rural Development Department.
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WP(C) 175 of 2015
15. Having appreciated the submissions of the learned counsel for the parties, two pertinent questions, which are as under, have surfaced to be attended to :
(1) Whether the purpose or object of the rules called Rural Development Department Engineering Officers (Training and Departmental Examination) Rules, 2005 was to make the passing of departmental examination for promotion from the post of the Executive Engineer to the post of Superintendent Engineer in the Rural Development mandatory or not?
(2) Whether the DPC by observing that since the petitioner did not pass the departmental examination, he cannot be promoted to the post of Superintendent Engineer, even though, there was a vacancy for the ST candidates has committed illegality?
16. The purpose of the Rural Development Departmental Engineering Officers (Training and Departmental Examination) Rules, 2005 is very clear. By dint of the said rules as published by the notification dated 20.06.2005 the syllabus, the procedure and the consequences of the departmental examination have been laid down. The said rules also provide that no officer would be considered for confirmation in the grade and promotion to the next higher grade if he does not pass the "Departmental examination in all papers".
17. There cannot be any other alternative meaning except that where the substantive Recruitment Rules provides the passing of the departmental examination as the essential condition for promotion or advancement, all the consequence of the said Rules, 2005 would follow. But when the Recruitment Rules does not provide any such requirement, whether the said Recruitment Rules can be supplemented by the said Rules, 2005 ?
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WP(C) 175 of 2015
18. There is no dispute that the Rules, 2005 have been framed under the authority conferred by proviso to Article 309 of the Constitution. The said Rules, 2005 will not have any relevance if the substantive rules does not provide passing of the departmental examination as the essential requisite for promotion or advancement. There is no dispute, before the Recruitment Rules, 2010 was given effect to, there was no statutory requirement by the Recruitment Rules of passing out the departmental examination for purpose of promotion from the feeder post of the Executive Engineer to the post of Superintendent Engineer. After the said Rules, 2005, read together with the Recruitment Rules, 2010 it would emanate that locating this gap, the executive in exercise of the power provided under proviso to Article 309 of the Constitution has suppressed the earlier Recruitment Rules, 2003 and has framed the new Recruitment Rules in the year 2010 where the passing of the departmental examination for promotion from the post of Executive Engineer to the post of Superintendent Engineer under the Rural Development Department has been made essential requisite. Thus, whether the Tripura Public Service commission was consulted or not is relevant. But, it would be inappropriate to read the requirement of passing of the departmental examination for promotion to the post of the Superintendent Engineer in the Recruitment Rules, 2003. Even the Recruitment Rules, 2010 was not given retrospective operation and it was given the prospective operation, and hence, when the DPC was considering promotion to the post of the Superintendent Engineer on 27.06.2009, the petitioner had all the requisite qualifications to be promoted to the post of the Superintendent Engineer inasmuch as his fitness was denied for the Page 11 of 13 WP(C) 175 of 2015 solitary reason that he did not pass the departmental examination. Therefore, denial of recommendation for promotion on the ground that he had not passed the departmental examination, is wholly unsustainable and accordingly, the same is interfered with.
19. As consequence thereof, the respondents No. 1 and 2 are directed to convene the review DPC to consider the promotion of the petitioner to the post of Superintendent Engineer as on 27.06.2009 in terms of the Recruitment Rules, 2003 and if the petitioner is otherwise found suitable as the post is a selection post, he shall be promoted from the date when the respondent No.3 was so promoted to the post of the Superintendent Engineer under the Rural Development Department. Since the petitioner has approached this court only after disclosure of the said DPC minutes and the reply filed by the respondents on 19.02.2016, the petitioner will not get any financial benefits in the event of his promotion to the post of Superintendent Engineer in terms of the above. He would get all financial benefits from the date when the order of promotion shall be made by the respondents. However, the seniority shall be counted from the date when the respondent No.3 was appointed to the post of Superintendent Engineer, if he is found suitable. The entire exercise shall be completed within a period of 4 (four) months from the day when the petitioner shall furnish a copy of this order to the respondents No. 1 and 2. Further, the petitioner's pay shall be notionally fixed for the period from the day when the respondent No.3 was promoted to the post of the Superintendent Engineer till his formal appointment by the respondents, if he is not already appointed as the Superintendent Engineer. In that event, his pay shall be re- Page 12 of 13
WP(C) 175 of 2015 fixed in the manner as stated above till the date of his appointment as the Superintendent Engineer on promotion and arrears of the pay shall be paid within the said period as stipulated above.
20. Having observed thus, this writ petition stands allowed to the extent as indicated above.
There shall be no order as to costs.
JUDGE Sabyasachi. B Page 13 of 13 WP(C) 175 of 2015