Sri Krishna Chakraborty vs The State Of Tripura And Others on 26 June, 2024

[Cites 10, Cited by 0]

Tripura High Court

Sri Krishna Chakraborty vs The State Of Tripura And Others on 26 June, 2024

Bench: T. Amarnath Goud

Page 1 of 19

HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
WA No. 250 of 2021
Connected 7with
1. Sri Krishna Chakraborty.

.....Appellant
-V E R S U S-
1. The State of Tripura and Others.
..... Respondents
WA No. 30 of 2022
1. Sri Krishna Chakraborty.

..... Appellant
-V E R S U S-
1. The State of Tripura and Others.

..... Respondents
WA No. 31 of 2022
1. Sri Krishna Chakraborty.

..... Appellant
-V E R S U S-
1. The State of Tripura and Others.
..... Respondents
WA No. 32 of 2022
1. Sri Krishna Chakraborty.

..... Appellant
-V E R S U S-
1. The State of Tripura and Others.

. ..... Respondents
WA No. 33 of 2022
1. Sri Krishna Chakraborty.

..... Appellant
-V E R S U S-
1. The State of Tripura and Others.
..... Respondents
WA No. 34 of 2022
1. Sri Krishna Chakraborty.

..... Appellant
-V E R S U S-
1. The State of Tripura and Others.
Page 2 of 19

..... Respondents

WA No. 35 of 2022
1. Sri Krishna Chakraborty.

..... Appellant
-V E R S U S-
1. The State of Tripura and Others.
..... Respondents
WA No. 36 of 2022
1. Sri Krishna Chakraborty.

..... Appellant
-V E R S U S-
1. The State of Tripura and Others.
..... Respondents
WA No. 37 of 2022
1. Sri Krishna Chakraborty.

..... Appellant
-V E R S U S-
1. The State of Tripura and Others.
..... Respondents
WA No. 38 of 2022
1. Sri Krishna Chakraborty.

..... Appellant
-V E R S U S-
1. The State of Tripura and Others.

..... Respondents
WA No. 39 of 2022
1. Sri Krishna Chakraborty.

..... Appellant
-V E R S U S-
1. The State of Tripura and Others.
..... Respondents
WA No. 40 of 2022
1. Sri Krishna Chakraborty.
..... Appellant

-V E R S U S-

1. The State of Tripura and Others.

..... Respondents
Page 3 of 19

WA No. 41 of 2022
1. Sri Krishna Chakraborty.

..... Appellant

-V E R S U S-
1. The State of Tripura and Others.
..... Respondents
WA No. 42 of 2022
1. Sri Krishna Chakraborty.

..... Appellant
-V E R S U S-
1. The State of Tripura and Others.

..... Respondents
WA No. 43 of 2022
1. Sri Krishna Chakraborty.

..... Appellant
-V E R S U S-
1. The State of Tripura and Others.

..... Respondents
WA No. 44 of 2022
1. Sri Krishna Chakraborty.

..... Appellant
-V E R S U S-
1. The State of Tripura and Others.

..... Respondents
WA No. 45 of 2022
1. Sri Krishna Chakraborty.

..... Appellant
-V E R S U S-
1. The State of Tripura and Others.
..... Respondents
WA No. 46 of 2022
1. Sri Krishna Chakraborty.

..... Appellant
-V E R S U S-
1. The State of Tripura and Others.
..... Respondents
Page 4 of 19

B_E_F_O_R_E
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE BISWAJIT PALIT

For Appellant(s) : Mr. A. Bhowmik, Advocate.
For Respondent(s) : Mr. K. De, Addl. G.A.
Mr. G. K. Nama, Advocate.
Mr. S. Lodh, Advocate.
Date of hearing & delivery of
judgment and order : 26.06.2024
Whether fit for reporting : YES

JUDGMENT & ORDER [ORAL]

[T. Amarnath Goud, J]

Heard Mr. A. Bhowmik, learned counsel appearing for the
appellant also heard Mr. K. De, learned Addl. G.A. for the official
respondents and Mr. G. K. Nama & Mr. S. Lodh, learned counsel
appearing for the private respondents.

[2] All these writ appeals are consolidated for disposal by a
common judgment and order inasmuch as, the controversy is structured
on facts which resemble. The present appeals have been filed under
Chapter-VA of the Gauhati High Court Rules (as the said rules were in
force till the Tripura High Court Rules came into existence in 2023) read
with Article-226 of the Constitution of India assailing the judgment and
order dated 02.09.2019 passed in WP(C) No.1497 of 2017 and other
batch matters by the learned Single Judge of this Court.

[3] The writ petitioners are the respondents in these appeals and
so the appellants are the respondents in the writ petitions. The appellant
was a private respondent No. 15 in WP(C) No.1497 of 2017 & batch of
Writ Petitions under Article 226 of the Constitution of India filed seeking
the following reliefs:

"(1) Issue rule asking the respondents to show cause as to why the decision
of the Council of Ministers held on 17.05.2017 in respective of Item No.5
and consequential memorandum dated 02.06.2017 regularizing the ad-hoc
appointees by overriding the judicial order, and affecting the seniority of
the petitioner and similar others should not be declared bad in law and
accordingly quashed.
Page 5 of 19

(2) Issue rule asking the respondents to show cause as to why they should
not be prevented from taking away the vested/accrued right of the
petitioner with regard to seniority in his grade by any decision taken by the
Council of Ministers, under the rules of executive business.

(3) After hearing the parties and being satisfied about the position of law
make the rule in terms of (1) and (2) above absolute.

(4) In the meantime, the Hon'ble Court would kindly pass an interim order
of stay in effecting the memorandum dated 02.06.2017 by which the ad-
hoc appointees have been regularized taking away the right of the
petitioner accrued over the last 17 years particularly by overriding the
judicial verdict of the High Court in his regard."

[4] The brief facts of the present case is that the appellant was
appointed as Supervisor Rural Functional Literacy Project, (for short
RFLP) under Directorate of Social Welfare and Social Education, Govt.
of Tripura on 20.12.1991 on ad-hoc basis and thereafter the service of the
appellant were regularized vide memo dated 02.06.2017 from the date of
his initial engagement i.e. from 1991 after receiving approval from the
Council of Ministers vide the meeting of the Council of Ministers dated
17.5.2017 to regularize the services.

[5] The appellant is serving as a Supervisor (RFLP) under
Directorate of Social Welfare and Social Education, Govt. of Tripura and
since then the appellant was discharging his services. In the instant
appeal, the un-official respondent Nos. 3 to 20 were already appointed as
Supervisor, Integrated Child Development Services [for short ICDS],
Directorate of Social Welfare and Social Education, Govt. of Tripura.

[6] The official respondent by way of memo dated 02.06.2017
issued seniority list and the same is under challenged contending that the
respondents in the writ are shown as senior above the writ petitioners.
Hence, the writ petitions were filed.

[7] After hearing the learned counsel appearing for the parties
and having gone through the material evidences on record, the learned
Single Judge, has observed in W.P. (C) 1497 of 2017 and other batch
matters and passed orders dated 02.09.2019.
Page 6 of 19

[8] Being aggrieved by the same, the appeals have been
preferred.

[9] Mr. A. Bhowmik, learned counsel appearing for the
appellant has submitted that the post of Supervisor, RFLP, Directorate of
Social Welfare and Social Education, Govt. of Tripura is completely a
distinct post from the post of Supervisor, ICDS, Directorate of Social
Welfare and Social Education, Govt. of Tripura. The petitioners in the
writ petitions, who were serving as Supervisor (ICDS) had no locus-
standi to challenge the regularization of appellant and fixing the seniority
amongst the said class. Such challenge is not akin to service
jurisprudence. More so, the appointment of the appellant has been made
under RFLP Rules appointments of Supervisors under ICDS are separate
Rules and selection is through Tripura Public Service Commission [for
short TPSC] and separated with fixation under the same rules.

[10] The writ petitioners were appointed by memorandum dated
05.08.2000 duly following the Recruitment Rules of Supervisor (ICDS)
dated 30th September, 1997 through selection process of the Tripura
Public service Commission in terms of the Tripura Public Service
Commission (exemption from Consultation) Regulations, 1973.
Regulation-4 of said rules 1973provide the post/services for which the
State of Tripura is exempted from consultation including direct
recruitment.

[11] He contended that earlier ad-hoc appointees in the post of
Social Education Organizer [for short SEO] has been regularized and
thereafter promoted to the post of Child Development Project Officer [for
short CDPO] and the entire process occurred after the appointment of the
respondent as Supervisor, ICDS but the respondent had never took any
plea nor raised any objection against the regularization of the ad-hoc
appointees in the post of SEO. The appellant was appointed as
Supervisor, RFLP which is a completely distinct post from the post of
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Supervisor, ICDS and therefore, the regularization of the appellant cannot
be challenged in writ.

[12] Mr. Bhowmik, learned counsel appearing for the appellant
has submitted that the learned Single Judge has failed to appreciate that
the appellant was appointed as Supervisor (RFLP) on 20.12.1991 on ad-
hoc basis and at that point of time the post of Supervisor (RFLP) was
under a Centrally sponsored Scheme which was subsequently
discontinued by the Govt. of India, Ministry Human Resource
Development, Department of Education during the period from 1991 to
1992 and thereafter the same was transferred to State plan under State
Audit Education Programme w.e.f. 1" April, 1992.

[13] The post of Supervisor (RFLP) and Supervisor (ICDS) have
common promotional avenue to the post of Child Development Project
Officer and as such there is a common seniority list for the post of
Supervisor (RFLP) and Supervisor (ICDS) and following para-19 of the
judgment of the learned Single Judge, the appellant has been placed at Sl.
No. 212 of the seniority list ignoring the service rendered by the appellant
on ad-hoc basis. Vide the impugned judgment and order the learned
Single Judge of this Court although held that the writ petitioners had no
indefeasible right to challenge the seniority list of the appellant, but again
in the Judgment, held that in case of any promotional exercise the writ
petitioners are to be considered senior to appellant and accordingly the
ad-hoc service period of the appellant has not been counted towards
seniority of the appellant and as such, the findings are incorrect and
contradictory. He further placed reliance on a decision of the Hon'ble
Apex Court in Gulabrao Keshavrao Patil and Others v. State of Gujarat
and Others, reported in (1996) 2 SCC 26.

[14] Mr. K. De, learned Addl. G.A. appearing for the respondent-
State has submitted that no government employee has any vested/accrued
right to claim seniority in service and the petitioners holding different
post is disentitled to claim their grievance against the regularization.
Page 8 of 19

Right to seniority does not create any accrued or vested rights and the
continuations made cannot be permitted as agenda for regularization of
the Supervisor (RFLP) under Directorate of Social Welfare and Social
Education, Government of Tripura as recorded in item No.5 of the
memorandum dated 17.05.2017 and consequential memo regularization
of the services cannot be challenged.

[15] Mr. G. K. Nama, learned counsel for the respondents/writ
petitioners in support of his case contended that writ petitioners are
Supervisors in S.W. department and are appointed prior to appellants and
they cannot claim seniority upon petitioners by way of regularization
considering the date of ad-hoc appointment and thus, prayed to set aside
the Council of Ministers decision in regularization and the consequential
memo of official respondent in fixing the seniority while regularizing
services. He has placed his reliance on a decision of the Hon'ble Apex
Court in Malook Singh and Others v. State of Punjab and Others,
wherein, the Court has held thus:

"20. The law on the issue of whether the period of ad hoc service can be
counted for the purpose of determining seniority has been settled by this
Court in multiple cases. In Direct Recruits (supra), a Constitution Bench of
this Court has observed:

"13. When the cases were taken up for hearing before us, it was faintly
suggested that the principle laid down in Patwardhan case [(1977) 3 SCC
399: 1977 SCC (L&S) 391: (1977) 3 SCR 775] was unsound and fit to be
overruled, but no attempt was made to substantiate the plea. We were
taken through the judgment by the learned counsel for the parties more
than once and we are in complete agreement with the ratio decidendi, that
the period of continuous officiation by a government servant, after his
appointment by following the rules applicable for substantive
appointments, has to be taken into account for determining his seniority;
and seniority cannot be determined on the sole test of confirmation, for, as
was pointed out, confirmation is one of the inglorious uncertainties of
government service depending neither on efficiency of the incumbent nor
on the availability of substantive vacancies. The principle for deciding
inter se seniority has to conform to the principles of equality spelt out by
Articles 14 and 16. If an appointment is made by way of stop-gap
arrangement, without considering theclaims of all the eligible available
persons and without following the rules of appointment, the experience on
such appointment cannot be equated with the experience of a regular
appointee, because of the qualitative difference in the appointment. To
equate the two would be to treat two unequals as equal which would
violate the equality clause. But if the appointment is made after
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considering the claims of all eligible candidates and the appointee
continues in the post uninterruptedly till the regularization of his service in
accordance with the rules made for regular substantive appointments, there
is no reason to exclude the officiating service for purpose of seniority.
Same will be the position if the initial appointment itself is made in
accordance with the rules applicable to substantive appointments as in the
present case. To hold otherwise will be discriminatory and arbitrary.....

47. To sum up, we hold that

(A) Once an incumbent is appointed to a post according to a rule, his
seniority has to counted from the date of appointment and not according to
date of his confirmation. The corollary to the above rule is that where the
initial appointment is only ad hoc and not according to rules and made as a
stop-gap arrangement, the officiation in such post cannot be taken into
account considering the seniority."

[Emphasis supplied]

The decision in Direct Recruits (supra) stands for the principle that ad hoc
service cannot be counted for determining the seniority if the initial
appointment has been made as a stop gap arrangement and not according
to rules. The reliance placed by the Single Judge in the judgment dated 6
December 1991 on Direct Recruits (supra) to hold that the ad hoc service
should be counted for conferring the benefit of seniority in the present case
is clearly misplaced. This principle laid down in Direct Recruits (supra)
was subsequently followed by this Court in Keshav Chandra Joshi v.
Union of India15. Recently a two judge Bench of this Court in Rashi Mani
Mishra v. State ofUttar Pradesh16, of which one of us (Justice DY
Chandrachud) was a part, observed that the services rendered by ad hoc
employees prior to their regularization cannot be counted for the purpose
of seniority while interpreting the Uttar Pradesh Regularization of Ad Hoc
Appointment Rules. This Court noted that under the applicable Rules,
"substantive appointment" does not include ad hoc appointment and thus
seniority which has to be counted from "substantive appointment" would
not include ad-hoc service. This Court also clarified that the judgement in
Direct Recruits (supra) cannot be relied upon to confer the benefit of
seniority based on ad hoc service since it clearly states that ad hoc
appointments made as stop gap arrangements do not render the ad-hoc
service eligible for determining seniority. This Court speaking through
Justice MR Shah made the following observations:

"36. The sum and substance of the above discussion would be that on a
fair reading of the 1979 Rules, extended from time to time; initial
appointment orders in the year 1985 and the subsequent order of
regularization in the year 1989 of the ad hoc appointees and on a fair
reading of the relevant Service Rules, namely Service Rules, 1993 and the
Seniority Rules, 1991, our conclusion would be that the services rendered
by the ad hoc appointees prior to their regularization as per the 1979 Rules
shall not be counted for the purpose of seniority, vis-à-vis, the direct
recruits who were appointed prior to 1989 and they are not entitled to
seniority from the date of their initial appointment in the year 1985. The
resultant effect would be that the subsequent re-determination of the
seniority in the year 2016 cannot be sustained which was considering the
services rendered by ad hoc appointees prior to 1989, i.e., from the date of
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their initial appointment in 1985. This cannot be sustained and the same
deserves to be quashed and set aside and the seniority list of 2001counting
the services rendered by ad hoc appointees from the date of their
regularization in the year 1989 is to be restored.

37. Now so far as the reliance placed upon the decision of this Court in the
case of Direct Recruit Class II Engg. Officers' Assn. (supra), relied upon
by the learned Senior Advocate appearing on behalf of the ad hoc
appointees is concerned, it is required to be noted that even in the said
decision also, it is observed and held that where initial appointment was
made only ad hoc as a stop gap arrangement and not according to the rules,
the officiation in such post cannot be taken into account for considering
the seniority. In the case before this Court, the appointments were made to
a post according to rule but as ad hoc and subsequently they were
confirmed and to that this Court observed and held that where
appointments made in accordance with the rules, seniority is to be counted
from the date of such appointment and not from the date of confirmation.
In the present case, it is not the case of confirmation of the service of ad
hoc appointees in the year 1989. In the year 1989, their services are
regularized after following due procedure as required under the 1979 Rules
and after their names wererecommended by the Selection Committee
constituted under the 1979 Rules. As observed hereinabove, the
appointments in the year 1989 after their names were recommended by the
Selection Committee constituted as per the 1979 Rules can be said to be
the "substantiveappointments". Therefore, even on facts also, the
decisionin the case of Direct Recruit Class II Engg. Officers' Assn.(supra)
shall not be applicable to the facts of the case onhand. At the cost of
repetition, it is observed that thedecision of this Court in the case of Direct
Recruit Class II Engg. Officers' Assn. (supra) was considered by this Court
in the case of Santosh Kumar (supra) when this Courtinterpreted the very
1979 Rules."

[16] He also placed his reliance i.e. in Rashi Mani Mishra and
Others v. State of Uttar Pradesh and Others, wherein, the Hon'ble Apex
Court has observed as under:

"10. Similarly, the decision of this Court in the case of Rudra Kumar Sain
(supra), relied upon by the learned counsel appearing on behalf of the ad
hoc appointees also shall not be applicable to the facts of the case on hand.
In the case before this Court, the promotees appointed on ad hoc were
continued for fairly long periods and their appointments were made after
due consultation with, or approval of Service Commission, and therefore
their appointments were held not to be ad hoc or fortuitous or stopgap. It is
to be noted that in the present case when the ad hoc appointees were
appointed in the year 1985, there was no consultation with the UPSC and
as such there was no recommendation by the UPSC. Their services came
to be regularised as per the 1979 Rules and after they were selected by the
Selection Committee constituted under the 1979 Rules, which specifically
provides that for the purpose of regularisation of ad hoc appointments, the
appointing authority shall constitute a Selection Committee and
consultation with the Commission shall not be necessary. It is also to be
noted that when the ad hoc appointees were appointed in the year 1985,
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they were appointed on the basis of the recommendations of the Selection
Committee constituted for ad hoc appointments and when subsequently
their services were regularised and they were appointed in the year 1989,
they were appointed by the order of Governor. This is one additional
ground to hold that their substantive appointments can be said to be only
from the date of their regularisation/appointment made in the year 1989
after their names were recommended by the Selection Committee
constituted under the 1979 Rules and their services were regularised as per
the 1979 Rules after following the procedure as required under the 1979
Rules, i.e., in the year 1989. Therefore, their seniority is to be counted only
from 23.02.1989, the date of their regularisation and the services rendered
by the ad hoc appointees prior thereto, i.e., from the date of their initial
appointments in the year 1985 is not to be counted for the purpose of
seniority, vis-à-vis, the direct recruits appointed prior to 1989."

[17] In Keshav Chandra Joshi and Others v. Union of India and
Others, reported in (1992) Supp (1) SCC 272, the Hon'ble Apex Court
has observed that:

"24. It is notorious that confirmation of an employee in a substantive post
would take place long years after the retirement. An employee is entitled
to be considered for promotion on regular basis to a higher post if he/she is
an approved probationer in the substantive lower post. An officer
appointed by promotion in accordance with Rules and within quota and on
declaration of probation is entitled to reckon his seniority from the date of
promotion and the entire length of service, though initially temporary,
shall be counted for seniority. Ad-hoc or fortuitous appointments on a
temporary or stop gap basis cannot be taken into account for the purpose
of seniority, even if the appointee was subsequently qualified to hold the
post on a regular basis. To give benefit of such service would be contrary
to equality enshrined in Article-14 read with Article-16(1) of the
Constitution as un-equals would be treated as equals. When promotion is
outside the quota, the 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 promotiees it would not be proper to do injustice to the direct
recruits. The rule of quota being a statutory one it must be strictly
implemented and it is impermissible for the authorities concerned to
deviate from the rule due to administrative exigencies or expediency. The
result of pushing down the promotes appointed in excess of the quota may
work out hardship but is unavoidable and any construction otherwise
would be illegal, nullifying the force of statutory rules and would offend
Articles -14 and 16(1). Therefore, the rules must be carefully applied in
such a manner as not to violate the rules or equality assured under Article-
14 of the Constitution. This Court interpreted that equity is an integral part
of Article-14. So every attempt would be made to minimize, as far as
possible, inequity. Disparity is inherent in the system of working out
integration of the employees drawn from different source, who have
legitimate aspiration to reach higher echelons of service. A feeling of
Page 12 of 19

hardship to one, or heart burning to either would be avoided. At the same
time equality is accorded to all the employees."

[18] Mr. S. Lodh, learned counsel for the other private
respondents in the appeals while adopting the arguments of Mr. Nama,
learned counsel further contended that the writ lies against decision of
Council of Ministers and in support of his case has placed his reliance in a
decision of the Hon'ble Apex Court in Madhya Pradesh Special Police
Establishment v. State of Madhya Pradesh and Others, reported in 2004
AIR SCW 6843, wherein, the Court has held as under:

"28. The Office of the Lokayukta was held by a former Judge of this
Court. It is difficult to assume that the said High Authority would give a
report without any material whatsoever. We, however, do not intend to lay
down any law in this behalf. Each case may be judged on its own merits.
In this case, however, we are satisfied that the Lokayukta made a report
upon taking into consideration the materials which were placed or received
by him. When the Council of Ministers takes a decision in exercise of its
jurisdiction it must act fairly and reasonably. It must not only act within
the four-corners of the statute but also for effectuating the purpose and
object for which the statute has been enacted. The Respondent No. 4 in
each appeal are to be prosecuted under the Prevention of Corruption Act
wherefor no order of sanction is required to be obtained. A sanction was
asked for and granted only in relation to an offence under Section 120B of
the Indian Penal Code. It is now trite that it may not be possible in a given
case even to prove conspiracy by direct evidence. It was for the Court to
arrive at the conclusion as regard commission of the offence of conspiracy
upon the material placed on records of the case during trial which would
include the oral testimonies of the witnesses. Such a relevant consideration
apparently was absent in the mind the Council of Ministers when it passed
an order refusing to grant sanction. It is now well-settled that refusal to
take into consideration a relevant fact or acting on the basis of irrelevant
and extraneous factors not germane for the purpose of arriving at the
conclusion would vitiate an administrative order. In this case, on the
material disclosed by the Report of the Lokayukta it could not have been
concluded, at the prima-facie stage, that no case was made out.

29. It is well-settled that the exercise of administrative power will stand
vitiated if there is a manifest error of record or the exercise of power is
arbitrary. Similarly, if the power has been exercised on the non-
consideration or non-application of mind to relevant factors the exercise of
power will be regarded as manifestly erroneous.

30. We have, on the premises aforementioned, no hesitation to hold that
the decision of the Council of Ministers was ex facie irrational whereas the
decision of the Governor was not. In a situation of this nature, the writ
court while exercising its jurisdiction under Article 226 of the Constitution
of India as also this Court under Articles 136 and 142 of the Constitution
of India can pass an appropriate order which would do complete justice to
Page 13 of 19

the parties. The High Court unfortunately failed to consider this aspect of
the matter."

[19] Heard both sides.

[20] Now, deciding the veracity of the memorandum dated
02.06.2017 which have been issued vide proceeding in favour of the 12
Supervisors (ICDS) proceeding 02.06.2017, in favour of the 2 numbers
Social Education Organizer (M), proceeding dated 02.06.2017 in favour
of 3 numbers of Supervisor (RFLP) and proceeding dated 02.06.2017 in
favour of 9 persons. It is seen from the said proceedings that these
employees under the said memorandum are falling under the category of
Supervisor under separate categories i.e. ICDS and RFLP and so on.

[21] Method of recruitment and qualification necessary for
appointment to the post of Supervisor (ICDS), Govt. of Tripura and
republish the amended rules in the schedule.

"RECRUITMENT RULES FOR THE POST OF SUPERVISOR (ICDS) UNDER
EDUCATION DEPARTMENT: GOVERNMENT OF TRIPURA.
1. Name of post Supervisor (Integrated Child Development Services)
2. No. of posts 153 (plus additional) posts as and when created
3. Classification Group-C, Non-Gazetted
4. Scale of pay Rs.1300-50-1700-55-2140-60-3220/- subject to revision by the
Govt. from time to time.
5. Age limit for direct recruitment 37 years. relaxable by 5 years in case of SC/ST candidates and
Government servants. Age is also relaxable up to 42 years for
Anganwadi Workers.
6. Whether selection post or non-selection post Selection post.
7. Educational and other qualifications required for direct Essential: Graduate of a recognized University. Desirable (i)
recruits Having at least 5(five) years experience in the field or women
& child Welfare. (ii) Knowledge of Bengali/Kak-Barak.
8. Whether age & Educational qualifications prescribed for Educational qualification No.
direct recruits will apply in the case of promotes. Age - No.
9. Period of probation, if any 2 (two) years
10. Method of recruitment whether by direct recruitment or by a. 50% by direct recruitment
promotion or by deputation/transfer & percentage of the b. 50% by promotion failing which by direct recruitment.
vacancies to be filled by various methods
11. In case of recruitment by promotion/deputation/transfer, By Promotion: From common seniority list of junior Social
grades from which promotion/ deputation/transfer to be made Education Organizer/Junior Social Education Organiser
(Female) in the following manner.
a. 40% vacancies against promotion quota from graduate
employees having 5(five) years experience.
b. 60% vacancies against promotion quota from Madhyamik or
equivalent passed employees having 8(eight) years experience.
12. If a D.P.C. exist, what is its composition Group-C, Non-Gazetted.
13. Circumstances in which T.P.S.C. is to be consulted in As required under TPSC (Exemption from consultation)
make recruitment Regulation, 1973.
14. Savings Nothing in these rules shall affect reservation & other
concessions required to be provided for SC/ST & other special
categories of persons in accordance with orders issued by the
Central/State Government from time to time in this regard.
15. Repeal The existing Recruitment Rules for the post of Supervisor
ICDS notified by the Govt. vide No.F.3(16)-DSWE/ESTT/84
dated 09.04.97 Social Welfare & Social Education
Page 14 of 19

Department Stands repealed.

"RECRUITMENT RULES FOR THE POST OF SUPERVISOR UNDER FARMERS
FUNCTIONAL LITERACY PROJECT UNDERTHE EDUCATION DEPARTMENT:
GOVERNMENT OF TRIPURA.
1. Name of post Supervisor
2. No. of posts 23 (plus additional) posts as and when Sanctioned
3. Classification Class-III, Non-Gazetted
4. Scale of pay Rs.325-15-445-20-565-25-665/- E.B.after 8th & 15th stages
5. Whether selection post or non-selection post Selection
6. Age limit for direct recruitment Maximum 35 years (Relaxiable by 5 years in case of ST/SC
candidates & Government servants.
7. Educational and other qualifications required for direct Essential: degree from recognized University. (Relaxable up to
recruitments matriculate or equivalent in case of ST/SC candidates)
Desirable (i) Knowledge of Bengali but preference will be
given to him who knows Kok-Borak.
8. Whether age & Educational qualifications prescribed for Age
direct recruits will apply in the case of promotes. Qualification : Not applicable
9. Period of probation, if any 2 (two) years
10. Method of recruitment whether by direct recruitment or by Direct recruitment
promotion or by deputation/transfer & percentage of the
vacancies to be filled by various methods
11. In case of recruitment by promotion/transfer, grades from Does not arise
which promotion/ transfer to be made
12. If a D.P.C. exist, what is its composition Does not arise
13. Circumstances in which T.P.S.C. is to be consulted in As required under TPSC (Exemption from consultation)
make recruitment Regulation, 1975.
14. Savings Nothing in these rules shall effect reservation & other
concessions required to be provided for SC/ST & other special
categories of persons in accordance with orders issued by the
Central Government/ State Government from time to time in
this regard.

As seen from the ICDS recruitment Rules the method of
recruitment is by direct 50% and promotion 50%. Further as per RFLP
Rules the method of recruitment is only by direct rectuitment.

[22] In Gulabrao Keshavrao Patil and Others v. State of Gujarat
and Others, reported in (1996) 2 SCC 26 wherein, the Hon'ble Apex
Court has been held thus:

"17. The same view was reiterated in State of Kerala v. A. Lakshmikutty
& Ors, reported in (1986) 4 SCC 632. It would thus be clear that before an
order or action can bind the Government it must be drawn in the name of
the Governor as envisaged in Article 166 [1] and [2] read with the
Business Rules and must be communicated to the affected person. Until
then, the action of the Government is not final. Before it is duly done,
Chief Minister has power to call for any file and would have it re-
examined and decision taken.

18. It would thus be seen that the decision of the Revenue Minister on July
6, 1973 is not final because the Urban Development Department did not
accept or agree to the decision taken by the Minister for Revenue. As
stated earlier, when the matter was brought by the Ministry of Urban
Development and Housing Department to the notice of the Chief Minister,
who holds ultimate responsibility and duty to report to the Governor and
accountable to the people, the Chief Minister, in light of instruction 10,
Page 15 of 19

should place the decision necessarily before the Council or the Cabinet, as
the case may be, and then may be decided by the Chief Minister. It is seen
that no decision has been taken by the Chief Minister under instruction 10.
Therefore, under Section 5-A (2), no decision was taken to proceed further
under Section 6 or to drop the acquisition proceedings. The High Court,
therefore, was right in rejecting the writ petition as being not proper for
interference."

[23] Upon appointment of the appellant vide memo dated
20.12.1991, the service of the appellant was continuous and without any
break and thereafter a proposal to regularize the appellant along with
others holding different posts was placed before the Council of Ministers.
The Council of Ministers in its meeting held on 17th May, 2017 vide Item
No.5 approved the regularization of the appellant along with others.
Thereafter vide memorandum dated 02.06.2017 the service of the
appellant was regularized w.e.f. the date of the appointment of the
appellant so that the appellant along with others get consequential
benefits of seniority and pension. It is highlighted that the service of the
Appellant was regularized along with others holding different posts.
However two persons were holding the post of Supervisor (RFLP) like
the appellant.

[24] It is seen from the record that challenging the decisions of
the Council of Ministers dated 02.06.2017 wherein, the full text of the
cabinet proceedings are also not placed on record and only the portion
which according to the petitioner is relevant is enclosed. The source of
providing such cabinet proceedings before this Court, are also not
mentioned in the affidavit. Neither it is obtained under RTI or by way of
any recognized procedure. Insofar as the cabinet decision is concerned, it
only decided that they are only regularizing the services but the cabinet
has not indicated with regard to their fixing of seniority.

[25] For the purpose of reference, let us look into the minutes of
the Cabinet Ministers and the relevant memos.

"MINUTES OF THE MEETING OF THE COUNCIL OF
MINISTERS HELD ON 17TH MAY, 2017 AT 11-00 A/A IN THE
CABINET ROOM.
Page 16 of 19

...........

Item No.5: Proposal for regularization of 19 (nineteen) persons appointed on Ad-hoc basis in the post of Supervisor, Rural Funacional Literacy Programme (RFLP), Social Education Organizer (SEO), Superintendent of Home and Supervisor, Integrated Child Development Services (ICDS) under Social Welfare & Social Education - regarding. (Education (SW & SE) Deptt. File No. F.3(51)-DSWE / ESTT / 2014(L) / 1876 (20) Dt.11.05.2017.

Proposal of the Department at praa-5 of the Cabinet Memorandum is approved.

..........."

Government of Tripura Directorate of Social Welfare & Social Education Ujan Abhoynagar, Agartala Pin-799005 No.F.3(not legible)-DSWE/ESTT/2014(L)/2281(not legible) Dated, Agartala 02.06.2017 MEMORANDUM Subject: Regularization of Ad-hoc appointed Supervisor (ICDS) under the Department of Social Welfare & Social Education, Govt. of Tripura.

The ad-hoc appointment of the following 12 Nos. Supervisors (ICDS) who were appointed during the year 1991-92 on ad-hoc basis under ICDS Scheme are hereby regularized in their services w.e.f. the date of their appointment (year 1991-92), so that they can get the consequential benefit of seniority and pensions.

Sl. Name of the staff Designation Present place of posting No.

1. Sri Rajt Roy Supervisor (ICDS) Jirania ICDS Project, West Tripura

2. Smt. (not legible) Supervisor (ICDS) Dukli ICDS Project, West Tripura

3. Sri Biswajit Sengupta Supervisor (ICDS) Hezamara ICDS Project, West Tripura

4. Smti. Helena Datta Supervisor (ICDS) Jirania ICDS Project, West Tripura

5. Sri Sudhir Ch. Das Supervisor (ICDS) Kakraban ICDS Project, South Tripura

6. Sri (not legible) Supervisor (ICDS) Dharmanagar ICDS Project Dhalai Tripura

7. Sri Brajendra Debnath Supervisor (ICDS) Panisagar ICDS Project, Norrth Tripura

8. Sri Debashish Chowdhury Supervisor (ICDS) Pecharthal ICDS Project, Unakoti Tripura

9. Sri (not legible) Supervisor (ICDS) Kumarghat ICDS Project, Unakoti Tripura

10. Sri Bidhan Ch. Nath Supervisor (ICDS) Panisagar ICDS Project, North Tripura

11. Nirmalendu Bikash Paul Supervisor (ICDS) Ramnagar, AWTC, Dharmanagar, North Tripura

12. Sri Ram Krishna Bhattacharjee Supervisor (ICDS) Kadamtala ICDS Project, Dharmanagar, North Tripura.

This issue as per the approval of the authority conveyed vide memo No. F.1(47)-GA(CAB)..(not legible) dated 17.05.2017 under Rule20(2) of the Rules of Executive Business in reference to the proposal of the Department vide Memo No. (not legible) Director Social Welfare& Social Education Page 17 of 19 Tripura."

Government of Tripura Directorate of Social Welfare & Social Education Ujan Abhoynagar, Agartala Pin-799005 No.F.3(51)-DSWE/ESTT/2014(L)/2279(9) Dated, Agartala 02.06.2017 MEMORANDUM Subject: Regularization of Ad-hoc appointed Social Education Organizer (M) under the Department of Social Welfare & Social Education, Govt. of Tripura.

The ad-hoc appointment of the following 2 Nos. Social Education Organizer who were appointed during the year 1991-92 on ad-hoc basis are hereby regularized in their services w.e.f. the date of their appointment (year 1991-92), so that they can get the consequential benefits of seniority and pensions.

Sl. No. Name of the staff Designation Present place of posting

1. Sri Pradip Bhattacharjee Social Education Directorate of Social Welfare & Social Organizer (M) Education, Agartala

2. Sri Sanjoy Saha Social Education Bishalgarh ICDS Project, Sepahijala Tripura Organizer (M) This issue as per the approval of the authority conveyed vide memo No. F.1(47)-GA(CAB)2000/ (vol-II) dated 17.05.2017 under Rule20(2) of the Rules of Executive Business in reference to the proposal of the Department vide Memo No. (not legible) Director Social Welfare& Social Education Tripura."

Government of Tripura Directorate of Social Welfare & Social Education Ujan Abhoynagar, Agartala Pin-799005 No. No.F.3(51)-DSWE/ESTT/2014(L)/2282(10) Dated, Agartala 02.06.2017 MEMORANDUM Subject: Regularization of Ad-hoc appointed Supervisor (RFLP) under the Department of Social Welfare & Social Education, Govt. of Tripura.

The ad-hoc appointment of the following 3 Nos. Supervisors (RFLP) who were appointed during the year 1991-92 on ad-hoc basis are hereby regularized in their services w.e.f. the date of their appointment (year 1991-92), so that they can get the consequential benefit of seniority and pensions.

Sl. No. Name of Staff Designation Present place of posting

1. Sri Krishna Chakraborty Supervisor (RFLP) Urban ICDS Project, West Tripura

2. Sri Bholaram Biswas Supervisor (RFLP) Dharmanagar N. P. ICDS, Project, North Tripura

3. Sri Nripendra Nath Supervisor (RFLP) Panisagar ICDS Project, North Tripura Page 18 of 19 This issue as per the approval of the authority conveyed vide memo No. F.1(47)-GA(CAB)2000/ (not legible) dated 17.05.2017 under Rule20(2) of the Rules of Executive Business in reference to the proposal of the Department vide Memo No. (not legible) Director Social Welfare& Social Education Tripura."

[26] However, all the candidates under the said memorandums fall under the Social Welfare Department and writ petitioners herein, are presently working in the Social Welfare Department and are aggrieved by the said seniority. It is also seen from the record that there are separate rules governing the appointment of the ICDS and RFLP and other categories' employees. In view of the same, it can be construed that Article-14 do not protect the case of the petitioners and there is no discrimination as everyone is under their own class and the appointments and seniority accordingly made by following the TPSC Rules and other rules governing ICDS & RFLP.

[27] At the time when the appellant was appointed in the post of Supervisor (Rural Functional Literacy Project), the said post was under a Centrally sponsored Scheme which was subsequently discontinued by the Government of India, Ministry of Human Resource Development, Department of Education during the period from 1991-1992 and thereafter the same was transferred to the State Plan under State Audit Education Programme w.e.f. 1st April, 1992. Henceforth the post of Supervisor (RFLP) was treated as State Plan post from the financial year 1992-1993 onwards. At the time when the Appellant was appointed, the recruitment for the post of Supervisor (RFLP) was governed by the Recruitment Rules dated 13.10.1980 and under the said Recruitment Rules there was no requirement of selection to the post of Supervisor (RFLP) through Public Service Commission. Accordingly at the time of appointment of the appellant, there was no requirement of recruitment through selection process of the Tripura Public Service Commission as there was no requirement of the same as per the Recruitment Rules. Thus, there is no proportional relation with regularization of supervisor.

Page 19 of 19

[28] As per the service jurisprudence, a challenge to fixation of seniority by way of appointments is concerned, it ought to have maintained only by holders of the same post i.e., Supervisor, RFLP. But, in the batch of writ petitions bearing WP(C) No. 1497 of 2017 and others, the writ petitioners holding the post of Supervisor, ICDS had challenged the seniority of the appellant holding the post of Supervisor, RFLP and as such the challenging of the seniority under the above premise is not tenable, there is discrimination and no violation of Article-14 of the Constitution of India.

[29] Learned counsel for the respondent was silent when the Court enquired into the matter regarding obtaining of the minutes of the Council of Ministers. Insofar as the challenging of the minutes of the cabinet decision is concerned, the writ petitions stand dismissed for the reasons stated (supra) as one of the reason is the decision of the Council of Ministers is not amenable under writ jurisdiction as the same is premature and unless it is proved violations of Constitution of India and Public Interest. The decision cited by the counsel in this regard is not applicable to the facts and circumstances of the case. The petitioners henceforth forbid from obtaining such documents contrary to procedure and the Government is expected to keep a proper surveillance. Accordingly, the writ petitions are liable to be dismissed consequently, the appeals deserves to be allowed.

[30] In the light of the above discussion, the appeals stand allowed and writ petitions stands dismissed. Consequently, the order passed by the learned Single Judge stands set aside. As a sequel, miscellaneous application, pending if any, shall stands closed.

          B. PALIT, J                             T. AMARNATH GOUD, J



A.Ghosh

ANJAN       Digitally signed by
            ANJAN GHOSH

GHOSH       Date: 2024.07.09
            17:27:53 +05'30'

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