Tripura High Court
Shri Sujit Patari vs The State Of Tripura on 14 August, 2018
Equivalent citations: AIRONLINE 2018 TRI 200
Bench: Ajay Rastogi, Arindam Lodh
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HIGH COURT OF TRIPURA
AGARTALA
WA 46 of 2013
1. Shri Sujit Patari
Son of late Ashutosh Patari
Old Kali Bari Road, Kadamtala,
Krishnanagar, Agartala-799001.
2. Shri Tapas Ranjan Banik
Son of Late Nityananda Banik
Shahid Kshudiram Bose Lane
P.O. Dhaleswar, Agartala
3. Shri Mahitosh Das
Son of Late Mahendra Ch. Das
Bhattapukur, (Near Apanjan Club)
P.O. AD Nagar, Agartala
----Appellant(s)
Versus
1. The State of Tripura, represented by
The Secretary cum Commissioner,
Tribal Welfare Department,
Government of Tripura.
2. The Secretary,
Finance Department,
Government of Tripura,
P.O. Kunjaban, Agartala
3. The Director,
Tribal Welfare Department,
Government of Tripura, Agartala.
----Respondent(s)
For Appellant(s) : Mr. DK Biswas, Adv.
Mr. GK Nama, Adv.
For Respondent(s) : Mr. D Sarma, Addl. GA.
HON'BLE THE CHIEF JUSTICE MR. AJAY RASTOGI HON'BLE MR. JUSTICE ARINDAM LODH Order 14/08/2018 The present writ appeal is directed against the order of the learned Single Judge dt. 31.07.2013.
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2. The brief facts in a nut-shell which are relevant for the present purpose are that the writ appellants are diploma holders in Civil Engineering and were initially recruited after their selection pursuant to an advertisement dt. 03.06.1997 and appointed temporarily as Junior Engineer (Civil) Grade-II vide order dt. 29.04.1998. As per the terms of advertisement dt. 03.06.1997 issued by the Tripura Public Service Commission, there was a note that the diploma holders in Civil Engineering will be initially recruited as Junior Engineer, Grade-II and after completion of four years of service, he/she shall be designated as Junior Engineer, Grade-I in the revised scale of pay of Rs.2000-4410.
3. By virtue of their selection and appointment as Junior Engineer (Civil) Grade-II the appellants became member of service of the Rules, 1984 (Annexure-R/1) and serving in the Directorate for Welfare of Schedule Tribes and Schedule Castes.
4. It may be relevant to note that at the time of inception of the rules dt.10.02.1984 (Annexure-R1) those who were Diploma Holders they were recruited in service on the post of Overseer but after subsequent notification dt.22.06.1996 taking note of the designation of diploma holders indicated under the ROP Rules, 1988 the existing post of Overseer (Diploma holder) stood re-designated as Junior Engineer, Grade-II in the Tribal Welfare Department as per the revised pay rules of 1988 and since the advertisement came to be notified subsequent to the re-designation, the diploma holders Page 3 of 12 are designated as Junior Engineers, Grade-II, the appellants on selection as Diploma in Civil Engineering pursuant to advertisement dt. 03.06.1997 appointed as Junior Engineer, Grade-II.
5. It reveals from the record that the ROP Rules, 1988 stood superseded by the Tripura State Civil Services (Revised Pay) Rules, 1999 effective from 01.01.1996 (hereinafter called ROP Rules, 1999) laying down the pay scales admissible to various categories of posts in the respective pay scales and vide later notification dt. 17th November, 2004 amendment was made under the ROP Rules, 1999, retrospectively w.e.f. the 1st day of January, 1996, the date on which the ROP Rules, 1999 became effective and in the schedule annexed thereto under the head of technical post common to all departments, a specification was made for Overseer belonging to all departments outside the cadre service, Tripura Engineering Service and Tripura Power Engineering Service stood re- designated as Junior Engineer, Grade-II and those diploma holders who were appointed as Junior Engineer Grade-II, a further note appended thereto that entry scale for diploma holders will move to Junior Engineer, Grade-I on completion of 8 years of continuous and satisfactory service.
6. It may be appropriate to quote the extract of the schedule made effective from 01.01.1996 relevant for the purpose to simplify the controversy which has been raised in the appeal ad infra:
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"TECHNICAL POSTS COMMON TO ALL DEPARTMENTS DEPARTMENT/ NAME OF POST PREFIX/ MODIFIED REMARKS PAGE NO. & SL. REVISED SUFFIX REVISED NO. EXISTING SCALE NAME OF TO THE SCALE OF SCALE W.E.F. POST POST PAY W.E.F. 1.1.1996 1.1.1996 Overseer belonging to all Departments outside the cadre services Junior viz. Tripura 1300-3220 4200-8650 5000-10300 Engineer Gr-II Entry scale for Engineering diploma Service and holder. They Tripura Power will move to Engineering Gr-I on Service.
completion of Junior Engineer 8 years of Gr-I belonging to continuous all Departments and outside the satisfactory cadre services Junior service.
viz Tripura 1450-3710 5000-10300 5000-10300 Engineer Gr-II Engineering Service and Tripura Power Engineering Service Junior Engineer 6500-12300 Entry scale for Gr-I belonging to 7450-13000 Degree all Departments (As per the holder. They outside the Court's will move to cadre services Order in CAS-I scale viz Tripura favour of on completion Engineering Degree of 8 years of 2000-4410 Junior Service and holder 7450-13000 continuous 2100-4410 Engineer Gr-I Tripura Power Jr.Engineer/ and Engineering Jr. Engineer satisfactory Service. Gr-I service.
belonging to PWD/Power Department NOTE: ALL RELEVANT ENTRIES IN THE TSCS(RP) RULES, 1999 APPEARING IN RESPECT OF THE POSTS OF OVERSEER/ JUNIOR ENGINEER UDNER DIFFERENT DEPARTMENS AT VARIOUS PLACES OF THE RULES IBID SHALL STAND MODIFIED AS PER THE ENTRIES MADE ABOVE IN RESPECT OF OVERSEER/JUNIOR ENGINEER."
7. Learned Single Judge after taking into consideration the material on record and taking note of the amendment notification dt.17th November, 2004 which became effective retrospectively, w.e.f. 1.1.1996 arrived to a conclusion that the service conditions once stood regulated by statutory rules and the re-designation of diploma holders from Grade-II to Grade-I would be possible only on completion of 8 years of service. Even a person who has completed the service prior to the statutory rules came into force, all such rules/instructions stood superseded and the conditions of service would be governed under the Service Rules of 1984 and once the amendment vide Page 5 of 12 notification dt.17th November, 2004 effective from 01.01.1996, all such Junior Engineer, Grade-II who were appointed prior to the ROP 1999, effective from 1.1.1996 or thereafter, their service conditions will be guided, so far as their re-designation from Grade-II to Grade-I is concerned, under the statutory scheme of ROP Rules, 1999 read with notification dt. 17.11.2004 (effective from 1.1.1996).
8. Indisputably, the present appellants have joined service after their regular selection as diploma holder civil engineers on the post of Junior Engineer, Grade-II prior to the ROP Rules, 1999 which became effective from 01.01.1996, in the interregnum period, but after the retrospective amendment has been made vide notification dt. 17th November, 2004 w.e.f. 01.01.1996, the diploma holders can be re-designated only after completion of 8 years of continuous & satisfactory service and what has been indicated in the advertisement may not confer any vested right after the statutory rules has come into force.
9. Indisputably, in the instant proceedings, the writ appellants have not challenged the retrospective amendment made vide notification dt. 17th November, 2004. Under the given circumstances, learned Single Judge arrived to the conclusion that the entitlement for re-designation to Junior Engineer Grade-II would be considered only on completion of 8 years service as per statutory rules and not as per the terms as was indicated in the advertisement in reference to which the selection process was held.
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10. The bone of contention of the appellant's counsel is that the recruitment rules are separate which govern the service conditions of employees including diploma holder in civil engineering and joined service as Junior Engineer, Grade-II and ROP Rules, 1999 govern the pay rules and will not supersede the statutory recruitment rules and once there is a provision in the recruitment rules to re-designate the employee/diploma civil engineers who joined service as Junior Engineer, Grade-II on completion of four years of service as Junior Engineer, Grade-I the conditions which are being regulated under the ROP Rules, 1999 would not take away the vested right of the writ appellants from being considered to be appointed as Junior Engineer, Grade-I on completion of four years of service. In support of his contention, counsel for the appellant has placed reliance on a decision of the Division Bench of this Court in WP(C)17/2008 decided on 17th July, 2013 [Shri Sujit Datta Vs. The State of Tripura & Ors.].
11. The further submission of the appellant's counsel is that as they joined service after their regular selection pursuant to advertisement dt. 03.06.1997 vide order dt. 29.04.1998 and on completion of period of four years, a right was vested/conferred on the appellants to seek re-designation in terms of the conditions of employment on the basis of which they had participated in the selection process and their conditions of service would not be unilaterally altered prejudicial to their interest by a retrospective amendment w.e.f. 1.1.1996 Page 7 of 12 and this action of the respondents in divesting the appellants' right by a retrospective amendment is violative of Article 14 of the Constitution.
12. Counsel for the respondents submits that the appellants joined service in the Directorate of Welfare for Schedule Tribes as Junior Engineer, Grade-II on 29.04.1998. At the given point of time, the diploma civil engineers on completion of four years were to be considered for re- designation to Junior Engineer, Grade-I but before completion of the term of four years of service the ROP Rules, 1999 came into force retrospectively w.e.f. 01.01.1996 and the further amendment was made under the ROP Rules, 1999 vide notification dt. 17th November, 2004 w.e.f. 01.01.1996 and the schedule annexed thereto clearly envisaged that the diploma civil engineers who joined service as Overseer stood re- designated as Junior Engineer, Grade-II and those who joined service as Junior Engineer, Grade-II being diploma civil engineer would be considered for re-designation as Junior Engineer, Grade-I on completion of 8 years of continuous & satisfactory service.
13. Counsel for the respondents submits that after the amendment notification of 17th November, 2004 which became effective from 01.01.1996 the appellants who completed four years of service in the interregnum period, their service conditions would be guided by the statutory rules and the validity of the Rules is not under challenge, in the given Page 8 of 12 circumstances they cannot be considered for re-designation on completion of four years of service as indicated in the advertisement and that stands superseded by the statutory rules of 1999 read with the notification dt. 17th November, 2004 became effective from 01.01.1996 and they will be guided for re-designation to Junior Engineer, Grade-I only on completion of 8 years of service under the statutory Rules and this what the learned Single Judge has held in his order, which calls for no interference by this Court.
14. We have heard the learned counsel for the parties and with their assistance perused the materials available on record.
15. The facts are not in dispute that for diploma civil engineers initially under the recruitment rules of the Department of Welfare of Scheduled Tribes and Scheduled Castes framed under proviso to Art. 309 of the Constitution of India dt. 10th February, 1984 are appointed as Overseer and re- designated as Junior Engineer, Grade-II under the ROP Rules, 1988 vide notification dt. 22nd June, 1996 (Anenxure-R2) and ROP Rules, 1988 stood superseded by the ROP Rules, 1999 which became effective from 01.01.1996 and by a later notification dt. 17th November, 2004 by a retrospective amendment made under the ROP Rules, 1999 w.e.f. 1st day of January, 1996 the schedule annexed thereto of which a detailed reference has been made, those who joined service as Junior Engineer, Grade-II (Diploma Civil Engineer) would become Page 9 of 12 eligible to be considered for re-designation as Junior engineer, Grade-I on completion of eight years of continuous & satisfactory service.
16. Indisputably, in the instant case, the appellant might have completed four years prior to the notification dt. 17th November, 2004 but once the amendment has been made under the ROP Rules, 1999 by virtue of the amendment notification dt. 17th November, 2004 w.e.f. 01.01.1996 the condition of service of the appellants stand governed by statutory ROP Rules, 1999 read with notification dt. 17th November, 2004 effective from 01.01.1996 and that being so those who are appointed as Junior Engineer, Grade-II (diploma civil engineers) could be re-designated as Junior Engineer, Grade-I only on completion of 8 years of continuous & satisfactory service.
17. As observed, the retrospective amendment which has been made under the ROP Rules, 1999 by notification dt. 17th November, 2004 effective from 01.01.1996 is not under challenge. Under the given circumstances, the condition of service once being regulated by the statutory rules and its validity is not being questioned, we are of the considered view that the condition of service has to be regulated by the statutory Rules, 1999 amended vide notification dt. 17th November, 2004 effective from 01.01.1996, which clearly envisaged that Junior Engineer, Grade-II shall be considered for re-designation on completion of 8 years continuous & satisfactory service as Junior Page 10 of 12 Engineer, Grade-I, the submission of the appellant's counsel of divesting the vested right, in our considered view, is without substance for the reason that when statutory rules hold the field there cannot be any vested right in contravention of the statutory rules.
18. The further submission of the appellant's counsel that they have completed four years service much before the amendment was made under the ROP Rules, 1999 by a later notification dt. 17th November, 2004 is also of no substance for the reason that the 17th November, 2004 notification had been made effective retrospectively from 01.01.1996, the date on which the original ROP Rules, 1999 became effective and once amendment has been made from the initial inception of the ROP Rules, 1999 any condition of service or the terms of the advertisement which stands in contravention to the statutory rules automatically stand superseded and no right can be conferred to the incumbent/employee to pray for a relief which is in contravention to the statutory rules and mere completion of four years of service would not confer any vested right in contravention to the statutory ROP Rules, 1999 effective from 01.01.1996, of which a detailed reference has been made and 8 years as Junior Engineer Grade-II (diploma holder) became the minimum qualifying service to claim re-designation to the post of Junior Engineer, Grade-I and that being the legal position what emerges from the scheme of rules, mere completion of four years in the interregnum period could not confer any right Page 11 of 12 to the appellants to seek any relief in contravention of the statutory rules.
19. We would further like to record that what being prayed for by the appellants, if accepted, will certainly be divesting from the scheme of statutory rules, and will not only be in contravention but will be an illegality if accepted by us, which is always to be avoided, and the judicious discretion has to be exercised within the four corners of law under Art.226 of the Constitution of India.
20. The judgment on which the appellants have placed reliance is of no assistance to them for the reason that it was a case in which the service conditions of the employee was governed by a separate recruitment rules of the Rural Development Department, according to which, a Junior Engineer, Grade-II would be considered for re-designation to the post of Junior Engineer Grade-I and we have gone through the judgment rendered by the Division Bench dt. 17.07.2013, there is no reference of ROP Rules, 1999 and of the later amendment made dt. 17th November, 2004 effective from 1.1.1996 which clearly postulates in granting re-designation to the diploma engineers who joined service either as a Overseer or after re-designation as Junior Engineer, Grade-II holding that their re-designation to Junior Engineer, Grade-I shall be on completion of 8 years qualifying & satisfactory service, of which a detailed reference has been made by us.
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21. After we have heard the parties, we find no error in the order of the learned Single Judge which may call for our interference. Consequently, the appeal is without any substance and is accordingly dismissed.
(ARINDAM LODH), J (AJAY RASTOGI), CJ. lodh