Smt. Smriti Das vs The State Of Tripura on 20 July, 2020

[Cites 5, Cited by 0]

Tripura High Court

Smt. Smriti Das vs The State Of Tripura on 20 July, 2020

Equivalent citations: AIRONLINE 2020 TRI 242

Smt. Niyasha Das @ Niyasha Rani Das, wife of Shri Kandarpa Das, resident of Dharmanagar Jail Road, Sath Sangha Lane, P.O. Dharmanagar, P.S. Dharmanagar, District : North Tripura, PIN : 799250 ............ Petitioner(s)

-Versus-

1. The State of Tripura, represented by the Secretary to the Government of Tripura, Rural Development Department, Civil Secretariat, New Capital Complex, Agartala, PIN : 799010

2. The Director, Projects, Government of Tripura, Rural Development Department, Civil Secretariat, New Capital Complex, Agartala, PIN : 799010

3. The D.M. & Collector, Unokati District, Gournagar, P.O. Gournagar, P.O. Gournagar via Kailashahar, Tripura, PIN : 799277

4. The Chief Executive Officer, Unokati DRDA, Gournagar, P.O. Gournagar via Kailashahar, Tripura, PIN : 799277

5. The Project Director, Unokoti DRDA, Gournagar, P.O. Gournagar via Kailashahar, Tripura, PIN : 799277 Page 3 of 27 ............ Respondent(s) For Petitioner(s) : Mr. B.B. Das, Adv.

For Respondent(s) : Mr. M. Debbarma, Addl. G.A. Mr. H. Sarkar, Adv.

Date of hearing                                 :         10.03.2020

Date of Judgment & Order                        :         20.07.2020 *
                                                          YES      NO
Whether fit for reporting                       :         √




                                     BEFORE
                        HON'BLE MR. JUSTICE S. TALAPATRA

                                       JUDGMENT & ORDER

Both the writ petitions being WP(C)No.186 of 2018 [Smt. Smriti Das versus State of Tripura & Others] and WP(C)No.192 of 2018 [Smt. Niyasha 1Das @ Niyasha Rani Das versus State of Tripura & Others] are combined for disposal by a common judgment inasmuch as nature of challenge as raised in these writ petitions are identical. Even the facts are almost similar. Whether the petitioners were recruited as the Gram Sevika under the Rural Development Department or the petitioners were recruited under the District Rural Development Authority is the question that has emerged eminently in these writ petitions.

2. In the writ petition being WP(C)No.186 of 2018 [Smt. Smriti Das versus State of Tripura & Others], the petitioner has urged *Pronouncement of the Judgment is delayed for lockdown in the Court. Page 4 of 27 to declare the memorandum dated 03.03.2017 [Annexure-6 to the writ petition] issued by the Chief Executive Officer, Unakoti DRDA, whereby the petitioners who were holding the post of RD Officer [on deputation] is reverted to her original post of Gram Sevika with effect from 01.03.2017.

It has been further urged that the respondents be directed to absorb the petitioner as the RD Officer under RD Department, Government of Tripura and to allow the petitioner to continue as the RD Officer on deputation till she is absorbed as the RD officer under the same department.

Further, the petitioner has urged this court for directing the respondents to grant all arrears, yearly increment of pay to the petitioner with interest at 12% per annum and also to make payment of all unpaid House Rent Allowances [HRA] with 12% interest within a time-frame.

3. In the writ petition being WP(C)No.192 of 2018 [Smt. Niyasha Das @ Niyasha Rani Das versus State of Tripura & Others] the petitioner has urged the resembling relief but some ancilliary reliefs are not urged in this writ petition. The petitioner has sought that the memorandum dated 03.03.2017 [Annexure-6 to the writ petition] issued by the Chief Executive Officer, Unakoti DRDA be declared discriminatory, illegal and unconstitutional and therefore, be set aside.

Page 5 of 27

The petitioner in this writ petition has also urged to absorb her as RD Officer under RD Department, Government of Tripura. Till the petitioner is absorbed as RD Officer under the said department, she shall be allowed to continue as the RD Officer on deputation.

4. There is no dispute that both the petitioners got selected in the post of Gram Sevika as would be reflected from the communication under No.F.1(72)-RD(IRDP)/85-Vol.I dated 16.11.1987 addressed to the Project Directors, DRDA, West Tripura, South Tripura and North Tripura, as at the relevant point of time Tripura had only three districts.

The petitioner has asserted that after completion of ten years of satisfactory service they were „designated‟ as the RD Organisor with approval of the Governing Body on the express ground of abolition of the post of Gram Sebikas. The relevant part of the minutes of the 25th meeting of the governing body, DRDA North Tripura held on 28.06.2000 is reproduced hereunder:

"PD proposed re-designation of 2 Nos. Gram Sevikas in the post of R.D. Organizer as the post of Gram Sevika has been abolished and both the Gram Sevika has already completed 10 years service with full satisfaction and sought approval of the house. After thorough discussion and various quarries [sic.queries] the Governing Body has approved re-designation of 2 Nos. Gram Sevika as R.D. Organizers."

5. In pursuance to the said decision taken in the 25th meeting of the Government Body of DRDA, North Tripura held on 28.06.2000, by the order No.F.15(8/8)-RD/98/88/1196-99 dated Page 6 of 27 01.09.2000 [Annexure-3 to the writ petition] the petitioners who were originally recruited as Gram Sevikas, were appointed on deputation to the post of R.D. Organiser against the existing vacancies in the scale of pay of Rs.4,200-8,650/ with other admissible allowances. From that order, it is apparent that the petitioners were appointed in the post of RD Organiser on deputation from the post of Gram Sevikas. In the state level SGSY committee meeting held on 21.02.2007, it had been also noticed and resolved that vacant posts of DRDAs would be filled up by inviting applications from the eligible persons and for this purpose, the advertisement will be issued in local dailies. In Clause-7 of the minutes of the said meeting, it has been observed inter alia :

"7. It was decided that vacant post of Gram Sevikas should be converted to RD Organiser by way of abolishing the vacant post of Gram Sevikas."

6. By the orders No.F.15(8/A)-RD/98-99/6598-04 dated 03.02.2005 [Annexure-5 to the writ petition], the petitioners were appointed as the RD Organiser against the vacant post of Gournagar, RD Block and Panisagar RD Block on deputation until further order in the scale of pay of Rs.5500-10700/-. Accordingly, both the petitioners were performing their field works under the respective RD Blocks. It was categorically mentioned in the order dated 03.02.2005 that the petitioner would perform field work and in addition, she would work at DRDA, North Tripura. As stated, all on a sudden the Chief Executive Officer [the District Magistrate and Collector] Unakoti, Kailashahar, the Page 7 of 27 respondents No.3 and 4 [the same person] by the memorandum No.F.19(2)/RD/DRDA(U)/2011/1600-07 dated 03.03.2017 reverted the petitioners to their original post of Gram Sevikas with effect from 01.03.2017. Since, this memorandum is the fulcrum of the entire controversy, the entire text of the said memorandum is extracted and reproduced hereunder :

"OFFICE OF THE DISTRICT RURAL DEVELOPMENT AGENCY UNAKOTI DISTRICT, KAILASHAHAR No.F.19(2)/RD/DRDA(U)/2011/1600-07 Dated : Kailashahar, the March, 3rd 2017 MEMO In pursuance of para 3 of RD Department, Govt. of Tripura letter No.F.1(296)- RD/SGSY/2013/631-33 dated 19.09.2016 and due to discontinuation of SGSY Scheme in the district, the deputation in respect of the following employees holding the post of RD Officer (on deputation) are hereby ceased & reverted to their original post of Gram Sevikas with effect from 01.03.2017 :

(a) Smt. Smritikana Das, RD Officer (On deputation).

(b) Smt. Niyasha Das, RD Officer (On deputation).

The Project Director, DRDA, Unakoti District, Kailashahar shall do the needful for re- fixation of their pay as per prevailing norms and their services shall now be utilized by this office.

The amount of salary expenditure so involved shall be debited from the available fund under DRDA Administration Scheme during the financial year 2016-17. To.

1. Smt. Smritikana Das, Gram Sevika-for information and necessary action.

2. Smt. Niyasha Das, Gram Sevika-for information and necessary action.

illegible (PR Bhattacharjee) Chief Executive Officer (DM & Collector) District Rural Development Agency Unakoti District, Kailashahar"

7. Having confronted with the said order dated 03.03.2017, when the petitioner enquired to know the real reasons behind such reversion, they came across one communication dated 19.09.2016 Page 8 of 27 [Annexure-7 to the writ petition] and found that the observation made by the Director, Projects, R.D. Department which reads as under :

"But, the Gram Sevikas, as referred to in your letter were appointed to the posts of RD Organiser and thereafter to the posts of RD Officer on deputation in the year 2000 and 2005 respectively, for which no specific approval was found to be accorded by RD Department. Moreover, the deputation orders were issued for indefinite period, rather than for any specified period."

8. Appearing for the petitioners, Mr. B.B. Das, learned counsel has brought to the notice of this court the memorandum No.F.6(56)-RD/SGSY/83/P-I/5189-5206 dated 05.10.2015 [Annexure- 8 to the writ petition] where it has been asserted that for functioning of the District Rural Development Agencies (DRDAs), several posts were created in the state. These posts borne in the DRDAs are non- Government posts, whereas the posts like Rural Development Organizer or Rural Development Officer are Govt. posts, borne under Rural Development Department. The Recruitment Rules for the posts of RD Organiser or RD Officer do not include any provision for filling up of the posts by promotion by incumbents holding a non-Govt. post in DRDAs. However, the posts may be filled on deputation basis in pursuance to the memo No.8(14)-RD/2001 dated 23rd November, 2001 of RD Department.

9. It has been further observed inter alia that the matter has been examined in the R.D. Department and it is brought to the notice of all concerned that, the order for filling up of the Government posts Page 9 of 27 should not be issued by DRDAs. In case, the appointing authority of the concerned Government post issues any order for filling up of the Govt. post by deputation of any DRDA employee, the concerned employee will retain lien to the original post held by him/her in the DRDA, for all the purposes. The said memorandum dated 05.10.2015 has been relied by the petitioners to show that the post of RD Organiser and its higher grade, the Rural Development officer are the posts created for the Rural Development Department, not for DRDAs.

10. Mr. Das, learned counsel has submitted that the post of Gram Sevika which the petitioners held was originally created for implementation of DWCRA (Development of Women and Children in Rural Areas) Scheme. The petitioner in WP(C)No.186 of 2018 was appointed in the post of Gram Sebika on 10.12.1987 in terms of the offer of appointment No.F.VI(2-1)/DRDA/(N)/87/1265 dated 30.11.1987, whereas the petitioner of the writ petition being WP(C)No.192 of 2018 was appointed as the Gram Sevika on the same day i.e. 10.12.1987 in pursuance to the offer of appointment No. F.VI(2-1)/DRDA/(N)/87/4859 dated 30.11.1987 [both the offers of appointment are available as Annexure-1 of the respective writ petitions]. The offers of appointment vide the memorandum dated 30.11.1987 had been issued by the Project Director, North DRDA, Kailashahar. Mr. Das, learned counsel has taken this court to one communication dated 16.11.1987 issued by the Director, Projects, Page 10 of 27 State Level Monitoring, R.D. Department, addressed to the Project Directors, DRDAs. In the said communication, it has been clearly observed as under :

"The post were created under the office memorandum No.F.1(24)(RD)IRDP/84 for Lower Division Clerk and Gram Sevika with the concurrence of Finance Department.

The expenditure towards pay and allowances of the post will be met from the fund already placed in the DRDA for the scheme strengthening of block level administration."

This communication dated 16.11.1987 has been referred by Mr. Das, learned counsel to satisfy this court that the post of Gram Sevikas was created in the Rural Development Department and as such, those were the government posts. Against two of such posts, the petitioners were appointed as Gram Sevikas.

11. As already referred, in the 25th meeting of the governing body of DRDA, North Tripura held on 28.06.2000 [the minutes are available at Annexure-2 to the writ petitions] the following resolution was adopted:

"PD proposed redesignation of 2 numbers Gram Sevikas in the post of RD organizer as the post of Gram Sevika has been abolished and both the Gram Sevikas have already completed ten years of service with full satisfaction and sought approval of the house. After through discussion and various queries the governing body has approved redesignation of 2 numbers Gram Sevika as R.D. organizers."

Reference to the resolution has been made for the limited purpose that the post of Gram Sevika where the petitioners were engaged stood abolished by virtue of the said resolution, even though, Page 11 of 27 it has been contended that Gram Sevikas were the government posts. Pursuant to the said resolution, by the order dated 01.09.2000, the petitioners were appointed on deputation to the post of R.D. organizer against the existing vacancies in the pay scale of Rs.4,200-8,650/- with admissible allowances. Curiously enough, in the said order the following note was provided by the District Magistrate and Collector, North Tripura, Kailashahar (CEO of DRDA for the said district) :

"The services of the R.D. organisors are hereby placed at the disposal of Project Director, DRDA, North Tripura, Kailashahar on deputation basis who will in turn arrange their posting in the blocks for utilization of their services exclusively for the programme of IRDP and its allied schemes."

From this note it is not conceivable that under what authority the District Magistrate and Collector, North Tripura issued the appointment letters of RD organizers on deputation But this court may, in order to understand, hold that as the CEO of DRDA, the said order was issued by the District Magistrate and Collector. It has been noticed that the posts of the R.D. organizer had been created in the Rural Development Department.

12. Mr. Das, learned counsel has also brought to the notice of this court, the minutes of the meeting of the state level SGSY Committee held on 21.02.2007 at Civil Secretariat [Annexure-4 to the writ petition], where a specific discussion was held regarding filling up of vacant post of DRDAs. The Commissioner and Secretary, RD Department had, as reflected in the minutes, asked the Director, Page 12 of 27 Projects to give advertisement in local dailies in respect of filling up of vacant posts of APDs. Director, Projects was asked to arrange for filling up vacant posts of RD Officers, RD Organizers, APDs etc. It was decided that vacant posts of Gram Sevikas should be converted to RD Organizers by way of abolishing the post of Gram Sevikas. This resolution has, to a larger extent, provided the mode of appointments. At the same time, it has clearly transpired that the post of Gram Sevikas were decided to be converted to RD Organizers, on their abolition.

In the course of time the petitioners were appointed to the post of RD officer on deputation by the District Magistrate and Collector, North Tripura District [as it then was] by the order No.F.15(8/A)-RD/98/99/6598-04 dated 03.02.2005 [Annexure-5 to the writ petition]. On a reading of the said order, it would clearly transpire that such appointment was made on deputation in the scale of pay of Rs.550-19700/-. But by the memorandum dated 03.03.2017 [Annexure-6 to the writ petition], as reproduced before, both the petitioners have been reverted to their orginal post of Gram Sevikas w.e.f. 01.03.2017 and the reason for such reversion has been attributed to discontinuation of SGSY scheme in the district and accordingly, the Director, Projects by the communication dated 19.09.2016 [Annexure-7 to the writ petition] has clarified as follows : Page 13 of 27

"But the Gram Sevikas as referred to in your letter were appointed to the post of RD organizer and thereafter to the post of RD officer on deputation in the year 2000 and 2005 respectively for which no specific approval was found to be accorded by RD department. Moreover deputation orders were issued for indefinite period rather than for any specified period."

13. Mr. Das, learned counsel has apprised this court that by the memorandum dated 05.10.2015 [Annexure-8 to the writ petition] the Rural Development Department has made some significant observations. For purpose of reference, the text of the said memorandum is extracted hereunder:

MEMORANDUM For functioning of the District Rural Development Agenicies (DRDAs), several posts were created in the state. These posts borne in the DRDAs are non-Govt. posts, whereas the posts like Rural Development Organizer or Rural Development Officer are Govt. posts borne under Rural Development Department. The Recruitment Rules for the posts of RD Organizer or RD Officer do not include any provision for filling up of the posts by promotion of any incumbent holding a non-

Govt. post in the DRDAs. However, the posts may be filled on deputation basis in pursuance of the memo No.8(14)- RD/2001 dated 23rd November, 2001 of RD Department. There are instances, where the posts of RD Organizer or RD Officer have been filled up by deputation of the incumbents, who were originally appointed to the non-Govt. post in the DRDAs. In some cases, period of such deputation continued till the retirement of the incumbents also. There are instances, where some employees of DRDAs on deputation to the Govt. posts have also laid claims for regularization of the appointment to such Govt. posts.

The matter has been examined in the RD Department and it is brought to the notice of all concerned that, order for filling up of the Govt. posts should not be issued by the DRDAs. In case, the appointing authority of the concerned Govt. post issues any order for filling up of the Govt. post by deputation of any DRDA employee, the concerned employee will retain lien to the original post held by him/her in the DRDA, for all the purposes.

Illegible (N.R. Das) Joint Secretary to the Govt. of Tripura Page 14 of 27

14. Mr. Das, learned counsel has thereafter referred to the memorandum dated 03.05.2017 [Annexure-9 to the writ petition] which is related to expenditure on salary of staffs and other related purposes. DRDAs were constituted for implementation of the Centrally sponsored schemes in respect of rural development. The said memorandum was issued having regard to the dwindling down of release of fund by the Government of India, in particular. It has been observed in the said memorandum that all deputationists from the Jute Mills, Panchayat Department, THHDC, GA (P & T) and R.D. Department may be repatriated. Employees borne under SBLA are employees of R.D. Department. Their salary, etc. should be drawn from the state budget. The District Magistrates (CEOs) of DRDAs were requested to take appropriate action after review of the fund requirement etc. Mr. Das, learned counsel has submitted that the employees borne under SBLA are the state government employees and he has claimed that the petitioners were also borne in the SBLA, but no record could be shown.

15. By the subsequent memorandum dated 10.11.2017 [Annexure-11 to the writ petition] it was communicated that the DRDAs shall take appropriate action for proper utilization of services of employees of DRDAs and it has been categorically stated that before sending someone on deputation, consent of the concerned employee shall be taken in the prescribed form. The petitioner, had placed their Page 15 of 27 demand by the lawyer‟s notice dated 20.11.2017 [Annexure-12 to the writ petition] to recall the order of reversion dated 03.03.2017. They had also raised the demand for release of financial benefits which got withheld in the process. In the notice, all the relevant facts as noted by this court has been laid to contend that the petitioners were to continue as the R.D. officers on deputation till their retirement. Incidence of deputation is supposed to be within the knowledge of the concerned department.

16. In response to the said notice dated 20.11.2017, DRDA, Unakoti has stated that DRDA is a registered society and is substiantially supported by the government fund.

17. In reply to the claim of the petitioners, the respondents have categorically stated that Gram Sevikas are the posts of DRDAs, whereas the R.D. Officers and R.D. Organisers are the post of the Rural Development Department, Government of Tripura. The petitioners were appointed clearly on deputation against those posts and they were reverted to their substantive post of Gram Sevika on 01.03.2017. It has been further stated by the petitioners by their representation dated 20.07.2017, that in the post of the R.D. Officer they had put 12 years of satisfactory service. The information collected through Right to Information Act does not nourish the case of the petitioners.

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18. The respondents No.1,2 and 3 by filing the reply have categorically stated that the petitioners were deputed to the post of R.D. Organisers and R.D. Officers and they cannot have any lien over that post. In para-16 of their reply, it has been stated as under :

"That in reply of averments/statements made by the petitioner in para 16 to prayer of the writ petition as I already state that the post of Gram Sevika to which the applicant is having lien is still in existence in DRDA, Unakoti and therefore, question of abolished post is does not arise. More so, the petitioner was appointed to the Govt. posts of RD Organiser and thereafter, RD Officer in North Tripura District on deputation basis, but her lien to her original post of Gram Sevika was retained. Moreover, the post of Gram Sevika is still very much in existence. The person who is appointed to a post on deputation basis cannot claim absorption to the post and it is always open for the employer to repatriate the incumbent to her orginal post at any given point of time, if the service of incumbent is not required for the purpose for which she was appointed on deputation and for that reason the claim of the petitioner is not justified and is liable to be dismissed and rejected."

19. The petitioners by filing the rejoinder have projected a new case that in terms of the guidelines for DRDAs administration, there is no post like Gram Sevika. The said post of Gram Sevika was abolished. The petitioners have contended that Gram Sevikas, working in all DRDAs, were infact absorbed in the R.D. Department as R.D. Organisers/R.D. Officers after abolition of the post of Gram Sevika and the „term‟ deputation was used to meet technical requirement. A staffing patterns for DRDA [Annexure-21 to the writ petition] shows that there had been no post like Gram Sevika for DRDAs, but when such staffing pattern was adopted, has not been mentioned anywhere.

To press into service the doctrine of legitimate expectation, it has been stated that after such long service it is Page 17 of 27 naturally expected that the petitioners would be absorbed, but unfortunately they have been reverted. Absorption as expected has taken place in some other cases. The petitioners have shown from the memorandum dated 24.06.2002 that some employees have been absorbed in different blocks etc. From the date of issue of the memorandum dated 24.07.1991 as referred in the memorandum dated 24.06.2002, those employees were treated as the government employees. But in the case of the petitioner, that did not happen.

20. The respondents No.4 and 5 filed a separate reply and contended that the petitioners were appointed as the Gram Sevikas under DRDA and subsequently they were appointed as R.D. Organiser and R.D. Officer on deputation. Initially, they were appointed for implementation of IRDP but with effect from 01.04.1999 they were brought under DRDA for implementation of the projects assigned to DRDAs.

21. Surprisingly, in the reply filed by the respondents No.3 and 4 it has been stated that "purely on humanitarian ground" the petitioners were appointed as R.D. Organiser on deputation with effect from 01.09.2000. But the post of R.D. Organiser or R.D. Officer cannot be filled up by an employee of DRDA without following the process of public employment. They have stated how DRDAs are getting financially crippled and incapacitated to provide the better benefit to their employees. It has been stated in para-19 of the said Page 18 of 27 reply that the petitioners did not file the declaration in the format for getting the House Rent Allowance (HRA) wherever it is relevant. According to those respondents, after abolition of IRDP scheme, on humanitarian ground the petitioners were engaged as R.D. Organizers. With the abolition of the project, the posts created thereunder get automatically abolished and no person can expect that he should be continued in the said post. Hence, the petitioners do not have any foundation to claim absorption against the government post merely because they served in that post for quite sometime. Whether the deputationist would be absorbed or not in the government post it would depend on the policy of the government. The petitioners have also filed the rejoinder against the reply filed by the respondents No.3 and 4 and stated emphatically that non-payment of the salary of the R.D. Officers cannot be substantiated by raising the plea of crunch of fund, the fund was available for salary and other expenses for the deputationists, as the posts where the petitioners were deputed are the government posts. Payment of salaries, HRA, increment against those posts cannot be linked to the financial stringency of DRDAs.

Mr. Das, learned counsel has submitted that from the very inception, the post of Gram Sevikas were the government posts and in the staffing pattern of DRDA there was no post like Gram Sevikas.

Page 19 of 27

22. Mr. Das, learned counsel has placed his reliance on a decision of the apex court in Union of India through Government of Pondicherry and Others versus V. Ramakrishnan and Others reported in (2005) 8 SCC 394 where the apex court has observed that ordinarily a deputationist has not legal right to continue in the post. A deputationist indisputably has no right to be absorbed in the post which he is deputed to. However, there is no bar thereto as well. It may be true that when deputation does not result in absorption in service to which an officer is deputed, no recruitment in its true import and significance takes place as he continues to be a member of parent service. Even when the tenure of deputationist is not specified, a deputationist cannot have any indefeasible right to hold the said post, ordinarily the term of deputation should not be curbed except on such just grounds, as for example, unsuitability or unsatisfactory performance. But where tenure is not specified, an order of reversion can be questioned when the same is malafide. An action taken in a post-haste manner also indicates malice. In support of legitimate expectation, reliance has been placed on National Buildings Construction Corporation versus S. Raghunathan and Others reported in AIR 1998 SC 2779 where the apex court has enunciated the law in the manner as laid hereinunder :

"18. The doctrine of "Legitimate Expectation" has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country are expected to honour their statements of policy or intention and Page 20 of 27 treat the citizens with full personal consideration without any iota of abuse of discretion. The policy statements cannot be disregarded unfairly or applied selectively. Unfairness in the form of unreasonableness is making to violation of natural justice. It was in this context that the doctrine of "Legitimate Expectation" was evolved which has today became a source of substantive as well as procedural rights. But claims based on "Legitimate Expectation" have been held to require reliance on representations and resulting detriment to the claimant in the same way as claims based on promissory estoppel."

23. Mr. Das, learned counsel has also placed his reliance on a deicison of the Rajasthan High Court in Dr. I.K. Mansoori versus Union of India and Others reported in (2017) 3 RLW 1969 where the Rajasthan High Court has having relied on V. Ramakrishnan (supra) and thereafter observed that a person who applied for the appointment on deputation has indefeasible right to be treated fairly and equally and once such person is selected and offered with letter of appointment with deputation, the same cannot be cancelled except on the ground of non-suitability and unsatisfactory work. Mr. Das, learned counsel has submitted that there is no allegation against the petitioners in respect of their performance.

24. Finally, Mr. Das, learned counsel has referred to a decision of this court in Sebabrata Bhattacharjee versus State of Tripura [judgment and order dated 17.11.2016 delivered in WP(C)No.676 of 2015 etc.]. In that case, this court had directed the state to absorb the petitioner in terms of their own policy. But in the present case, however, there is no reference of any policy at all. Page 21 of 27

25. Mr. M. Debbarma, learned Addl. G.A. appearing for the respondents No.1 and 2 and Mr. H. Sarkar, learned counsel appearing for the respondents No.3 and 4 have categorically stated that the petitioners were appointed as Gram Sevikas and subsequently, almost after ten years of their service, the scheme in which they were initially appointed was abolished. Thereafter, they were appointed as R.D. Organiser and later, as R.D. Officer on deputation. There is no policy of the state to appoint such employees permanently in the post of R.D. Organizers or in the post of R.D. Officers. There is no policy in respect of absorption. Therefore, the petitioners cannot claim absorption as a matter of right.

26. Mr. Sarkar, learned counsel has produced the memorandum under No.F.1(24)-RD/(IRDP)/84 dated 10.03.1986 whereby few posts were created for implementation of the Rural Development Programmes but in the said memorandum there is no mention of Gram Sevikas, but by the memorandum under No.F.3(4)- RD/(IRDP)/86 dated 22.11.1986, five posts of Gram Sevikas in the scale of pay of Rs.430-550/- were created for five blocks in North Tripura District for implementation of DWCRA programme temporarily. The expenditure that might require had been declared to be made from budget estimate for 1986-87 under major head 314-CD, Sub head 8(2)(2).C.8(2)(2)(1)-salaries. The said posts were created with concurrence of the Finance Department. It is apparent that those Page 22 of 27 posts were not created for DRDA. Moreover, it is found from the manual for IRDP and allied Programmes i.e. TRYSEM & DWCRA that there were post called Gram Sevikas. But the said order of creation of post does not show that those posts were created for DRDA. This court has however come across the memorandum under No.F.1(72)- RD(IRDP)/85 dated 04.05.1987 whereby the continuation of 11 posts of Gram Sevikas under DWCRA was granted. But at that time certain changes in respect of creation of the posts have been made by the competent authority for which the text of the said memorandum dated 04.05.1987 is extracted hereunder :

MEMORANDUM Subject : Continuance of 11(eleven) posts of Gram Sevika under DWCRA for DRDA West and North Tripura District.

The undersigned is directed to convey the approval of the Government to the continuance of 11(eleven) posts of Gram Sevika on scale of pay of Rs.430-15-580-20-600-25- 850/- among them six posts of Gram Sevika for the District Rural Development Agency, West Tripura and fixe posts for the District Rural Development Agency, North Tripura in connection with the implementation of the Scheme of Development of Women & Children in Rural Areas for further period of one year upto the end of February, 1988.

2. The expenditure involved shall be debitable to the Head of Account 2501-Special Programme for Rural Development, 01-Integrated Rural Development Programme, 101-Subsidy to District Rural Development Agencies Scheme for Development of Women and Children in Rural Areas (State share), 9-Grant-in-aid under Demand No.38.

3. This issues with the concurrence of the Finance Department vide their U.O.No.1061/Fin(G)/87 dated the 10th March, 1987.

Illegible (H. Bhattacharjee) Under Secretary to the Government of Tripura.

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There is no dispute that the petitioners were appointed against those posts and they are still continuing in those post by virtue of their appointment made against those posts.

27. Mr. Sarkar, learned counsel has submitted that it is apparent that those posts were subsequently placed under DRDAs by the memorandum dated 04.05.1987 and the petitioners were/are working under the control of Project Director of DRDA. According to him, at some point of time, the CEO of DRDA, North Tripura [as it then was] appointed the petitioners first in the post of R.D. Organiser and lateron, in the post of R.D. Officer without competence, inasmuch as both the posts were government post and the CEO of DRDA does not have any authority to appoint anyone against those posts. However, it has been decided by the government as a policy measure to repatriate all the deputationist from those posts to their parent department.

28. Having appreciated the averments, documents as produced before this court as well as the submission advanced by the learned counsel for the parties, this court finds DRDA as well as the respondents No.1 and 2 have created a conundrum in respect of appointments of the petitioners. But the fact that has not been denied categorically is that the petitioners had been appointed on completion of ten years of service in the post of Gram Sevikas, to the post of R.D. Organisers and thereafter to the post of R.D. Officers and the Page 24 of 27 petitioners continued in service in the post of R.D. Officers till their repartriation which came into effect from 01.03.2017. Thus, three pertinent questions that fall for consideration in these writ petitions are (1) whether the petitioners were appointed in the government posts? (2) whether the petitioners have right or expectation to get absorbed in the post of R.D. Officer ? and (3) whether the petitioners are entitled to the financial benefits like HRA, Yearly Increment etc. with interest ?

Whether the petitioners were appointed in the government post ? Since the record relating to the memorandum dated 22.11.1986 has been filed by Mr. Sarkar, learned counsel for the respondents No.3 and 4 at the time of hearing, it seems apposite to extract the full text and accordingly it is reproduced hereunder :

"No.F.3(4)-RD(IRDP)/86 Government of Tripura Rural Development Department.

Dated, Agartala, the 22nd Nov.,1986.

MEMORANDUM Subject- Creation of 5(five) posts of Gram Savika in North DRDA.

The undersigned is directed to convey/sanction of the Governor to the creation of 5(five) posts of Gram Sevika in the scale of Rs.430-850/-, one for each of 5 blocks in North Tripura District, for implementation of DWCRA Programme temporarily for the period from the date of the filling up of the posts up this end of February, 1937.

2. The expenditure involved on the account will be met out from the budget estimate for 1986-87 under Major Head 314-CO, Sub-Head C.8(2)(2), C.8(2)(2)(1)- salaries.

Page 25 of 27

3. This issues with the concurrence of the Finance Department vide their U.O.No.4012/Fin(6)/86 dated the 29th October, 1986.

Illegible (Naren Chandra) Commissioner-cum-Secretary"

There is no dispute that the petitioners were appointed as Gram Sevikas against those posts. From the memorandum dated 04.05.1987 it is distinctly clear that at the time of granting continuance those five posts were shown to have created "for the District Rural Development Agency, North Tripura in connection with the implementation of the Scheme of Development of Women and Children in Rural Areas." Even their offers of appointment were issued by the Project Director, DRDA in conformity to the said memorandum dated 04.05.1987 and hence, the petitioner cannot be treated as the government employee posted in DRDA. It may also be noted that the expenditure had also been changed [see para-2 of the memorandum dated 04.05.1987].

Whether the petitioners have right or expectation to get absorbed in the post of R.D. Officer ?

The petitioners might have the legitimate expectation for their absorption but the context in which the petitioners had been engaged demonstrates that the petitioners were appointed by a person who did not have the competence to appoint them. Therefore, there was no legal assessment in respect of their appointment by the competent authority. This creates the disability in applying the doctrine of Page 26 of 27 legitimate expectation which has today become a source of substantiate as well as procedural rights. The competent authority in the Rural Development Department might have considered their absorption on representation or otherwise by considering their long service in the post of R.D. Officer. True it is that unceremoniously the petitioners have been repatriated by the impugned order dated 03.03.2007. The petitioners‟ contention that they were on deputation for about 12 years in continuity in the post of R.D. Officer and that has formed the legitimate expectation, is not acceptable to this court inasmuch as deputation cannot automatically mature in absorption or regular appointment by efflux of time. For purpose of absorption, affirmative action of the government is required. Such action is ordinarily based on the policy. The petitioners may file a representation to the Secretary to the Rural Development Department within a period of one month from the date of the judgment with all testimonials seeking their absorption on the basis of their service in the post of the R.D. Officer. The Secretary, Rural Development Department having regard to the recruitment rules may explore whether the petitioners can be absorbed in the post of R.D. Officer. It is trite law that absorption is a matter of policy. The respondents No.1 and 2 may however, consider the representation of the petitioner as liberally as possible.

Page 27 of 27

Whether the petitioners are entitled to the financial benefits like HRA, Yearly Increment etc. with interest?

However, since the petitioners have served on those posts, they will be entitled to all financial benefits of such posts till their repatriation w.e.f. 01.03.2017 [see the memorandum dated 03.03.2017]. Whereever the petitioners are required to complete formality, the petitioners may do so without any delay. But such formalities be completed within one month from the date of the judgment. Within three months therefrom, the respondents No.1 and 2 shall release all the outstanding financial benefits [HRA, Yearly Increments etc.] of the petitioners for their holding the post of R.D. Officer. But this court is not inclined to direct the respondents pay any interest in the circumstances of the case.

Having observed thus, this court does not find any infirmity in the order dated 03.07.2017 [Annexure-6 to the writ petition]. Subject to the above observation and directon, this writ petition stands dismissed.

There shall be no order as to costs.

JUDGE Sabyasachi B

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