Tripura High Court
Smt. Padma Devi Rawat vs The State Of Tripura on 16 February, 2017
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
WP(C). No. 362 of 2016
Smt. Padma Devi Rawat,
wife of Sri Digamber Sing Rawat,
Gurkhabasti, P.O. Kunjaban, P.S. New Capital Complex, Agartala, Tripura
West, Pin- 799006
.........Petitioner
-VERSUS-
1. The State of Tripura,
to be represented by the Secretary, Department of Jail, Govt. of Tripura,
New Secretariat Complex, Agartala, Tripura West
2. The Secretary,
Department of Appointment & Service, Govt. of Tripura, Agartala, Tripura
West
3. The Inspector General of Prisons,
Jail Ashram Road, Dhaleswar, Agartala, Tripura West
4. The Superintendent,
Kendriya Sansodhanagar, Bishalgarh, District : Sepahijala, Tripura
5. The Secretary,
Finance Department, Government of Tripura, New Secretariat Complex,
Agartala, Tripura West
6. Sir Supal Chandra Bhattacharjee,
son of Prafulla Chandra Bhattacharjee,
Vill : Chowmohani Bazar, P.O. Sekerkot, P.S. Amtali, District: West Tripura
7. Sri Santosh Kar,
Carpenter, Dept. of Kendriya Sangsodhanagar, Bishalgarh, P.O. & P.S.
Bishalgarh, District: Sepahijala Tripura
........ Respondents
BEFORE THE HON'BLE MR. JUSTICE S. TALAPATRA For the petitioner : Mr. K. Nath, Advocate For the respondents : Mr. S. Chakraborty, Addl. G.A. Date of hearing and delivery of Judgment and order : 16.02.2017 Whether fit for reporting : YES WP(C). No. 362 of 2016 Page 1 of 5 Judgment and Order(Oral) Heard Mr. K. Nath, learned counsel appearing for the petitioner as well as Mr. S. Chakraborty, learned Addl. G.A. appearing for the respondents.
[2] By means of this writ petition, the petitioner has urged this Court to declare the order No. F.II-1155/IGP/03/6523-34 dated 05.12.2006 unreasonable and unjustified. By the said order, the petitioner has been appointed to the post of Peon (Group-D) on regular basis. The petitioner has been regularised in the said post after a long years of service as Casual Female Instructor (Tailoring), Central Jail, Agartala. For her regularisation, the petitioner had approached this Court earlier by filing a writ petition being WP(C).No. 108 of 2004 which was disposed of by this Court by its judgment dated 27.09.2013 observing inter alia, that:
"Considering the long service as rendered by the petitioner in the line of tailoring, the respondent should consider for accommodating the petitioner in the trade of tailoring. On consideration of the previous service as rendered by the petitioner, the respondents shall take a serious exercise whether the petitioner's engagement can be brought under the Group-C category or not and that according to the Court is not a very difficult task. If the said exercise is positively responded to, the respondents may further include the said engagement in the feeder post for promotion to the post of Assistant Supervisor (Tailoring). For this, the necessary Rules may be modified or tuned with. But, the Court cannot issue a mandate on the respondents. It is the expectation of the Court that the respondent would be responsive to the frustration of the petitioner. It is expected that the respondent would take up the said exercise with desired sensitivity and expectation."
[3] Thereafter, the petitioner, in order to reap the advantage of the said observation, filed a representation on 30.12.2015 but no positive result has yielded. However, in the WP(C). No. 362 of 2016 Page 2 of 5 Memorandum No. F.II-1155/IGP/2003/8313-14 dated 02.12.2014 it has been clearly observed as under:
"....despite all efforts the department is not in a position to accommodate her in the Group-C vacant post of Assistant Supervisor(Tailoring) and Female Warder, at present due to non-fulfilment of essential criteria of both recruitment Rules."
[4] Mr. Chakraborty, learned Addl. G.A. appearing for the respondents has submitted that the post of Assistant Supervisor is a promotional post and by any stretch of interpretation, any mode of recruitment other than promotion can be adopted under the rule and the promotion to the post of Assistant Supervisor Carpentry/Tailoring is made from the post of Warder having experience of 3 years in the respective trade. [5] Mr. K. Nath, learned counsel appearing for the petitioner has fervently urged this Court to direct the Government, if necessary, to create a supernumerary post for the petitioner to accommodate her in a Group-C post by suppression of the said order dated 05.12.2006. In support of that contention, Mr. Nath, learned counsel placed reliance on a decision of this Court in Sri Hari Charan Das v. The State of Tripura and Others [judgment dated 05.04.2013 in WP(C). No. 183 of 2003] and the decision of the Apex Court in Nihal Singh and Others v. State of Punjab and Others etc. reported in (2013) 14 SCC 65 constrained to observe that both the decisions are not relevant in the context of this case. [6] Mr. Nath, learned counsel appearing for the petitioner has further raised a plea that the petitioner has got a legitimate WP(C). No. 362 of 2016 Page 3 of 5 expectation having served the respondents for more than 18 years as the casual worker in the post of Female Instructor (Tailoring), now if she is not regularised in a post having the same nomenclature, the legitimate expectation would be buried so unceremoniously that would give rise to cause of action for seeking writ of mandamus from this Court.
[7] To support his contentions, he has referred a decision of the Apex Court in Ram Pravesh Singh and Others v. State of Bihar and Others reported in (2006) 8 SCC 381. The Apex Court in that decision, while dealing with the concept of legitimate expectation, has restated the principle as was laid down in the earlier decisions of the Apex Court in Punjab Communication Ltd. v. Union of India reported in (1999) 4 SCC 727, where the concept of legitimate expectation has been elaborately discussed as under:
"According to the Punjab Communication Ltd., the principle of `legitimate expectation' is still at a stage of evolution the principle is at the root of the rule of law and requires regularity, predictability and certainty in governments dealings with the public. The procedural part of its relate to the representation that a hearing or other appropriate procedure will be afforded before the decision is made.
However, the more important aspect is whether the decision maker can sustain the change in policy by resort to Wednesbury principles of rationality or whether the Court can go into the question whether the decision maker has properly balanced the legitimate expectation as against the need for a change?............ and in sum, this means that the judgment whether public interest overrides the substantive legitimate expectation of individuals will be for the decision-maker who has made the change in the policy the choice of the policy is for the decision-maker and not for the Court. The legitimate substantive expectation merely permits the Court to find out if the change in policy which is the cause of defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made."WP(C). No. 362 of 2016 Page 4 of 5
[8] In this case, the Government has not changed any policy which has turned the buck on the right of the petitioner and as such, the principles of legitimate expectation have not bolstered this Court to censure any action of the respondents. [9] Having due regard to these aspects of the matter, in the earlier judgement, this Court had observed that it is the executive who may having due regard to the context as recorded therein, may make necessary change in their policy. But they, by the memorandum dated 02.12.2014 (Annexure-P/5 to the counter affidavit filed by the respondents) has clearly observed that it is not possible on their part. In such a circumstance, the Court does not have any jurisdiction to direct the respondents either to create the supernumerary post or upgrade the post that is held by the petitioner, to the category of Group-C. Having held thus, the writ petition is dismissed. However, there shall be no order as to costs JUDGE A.Ghosh WP(C). No. 362 of 2016 Page 5 of 5