Tripura High Court
Wp(C) No.390/2019 vs The State Of Tripura on 12 March, 2020
Author: Akil Kureshi
Bench: Akil Kureshi
Page 1 of 14
HIGH COURT OF TRIPURA
AGARTALA
1. WP(C) No.390/2019
Sri Debajit Dey and others
----Petitioner(s)
Versus
1. The State of Tripura, represented by the Commissioner &
Secretary, Finance Department, Government of Tripura, having his
office at Secretariat Building, P.O.: Kunjaban, P.S.-New Capital
Complex, District-West Tripura, PIN-799006.
2. The Commissioner & Secretary, Finance Department,
Government of Tripura, having his office at Secretariat Building,
P.O.: Kunjaban, P.S.-New Capital Complex, District-West Tripura,
PIN-799006.
3. The Secretary, General Administration (Personal & Training)
Department, Government of Tripura, having his office at Secretariat
Building, P.O.: Kunjaban, PS-New Capital Complex, District-West
Tripura, PIN-799006.
4. The Deputy Secretary, General Administration (Personal &
Training) Department, Government of Tripura, having his office at
Secretariat Building, P.O.: Kunjaban, PS-New Capital Complex,
District-West Tripura, PIN-799006.
5. The Tripura Public Service Commission, represented by its
Secretary, having his office at Akhaura Road, P.O.-Agartala, P.S.-
West Agartala, Sub-Division-Sadar, District-West Tripura, PIN
799001.
6. The Secretary, Tripura Public Service Commission, having his
office at Akhaura Road, P.O.-Agartala, P.S.-West Agartala, Sub-
Division-Sadar, District-West Tripura, PIN 799001.
-----Respondent(s)
2. WP(C) No.627/2019
Sri Sanjoy Chakma, S/O. Bibhuti Bhusan Chakma, Vill./Town:-
Tripura Sports School Qtr. Complex, Badharghat, P.O.-A.D. Nagar, P.S.-A.D. Nagar, Dist.-West Tripura, Pin-799003.
----Petitioner(s) Versus
1. The Tripura Public Service Commission, represented by the Secretary, Agartala, Tripura West, PIN 799001.
2. The Secretary, Tripura Public Service Commission, Agartala, Tripura West, PIN 799001.
3. The State of Tripura, represented by Secretary, GA(P&T) Department, Government of Tripura, New Secretariat, P.O.:
Secretariat Agartala, PIN 799010.Page 2 of 14
4. The Secretary, GA(P&T) Department, Government of Tripura, New Secretariat, P.O.: Secretariat Agartala, PIN 799010.
5. The Secretary, Finance Department, Government of Tripura, New Secretariat, P.O.: Secretariat Agartala, PIN 799010.
-----Respondent(s) 3. WP(C) No.628/2019 Sri Manas Debbarma, S/O. Binoy Debbarma, Vill./Town:- Sri Ramthakur Para, P.O.-Samatal Padmabil, Dist.-Khowai, Pin-799201.
----Petitioner(s) Versus
1. The Tripura Public Service Commission represented by the Secretary, Agartala, Tripura West, PIN 799001.
2. The Secretary, Tripura Public Service Commission, Agartala, Tripura West, PIN 799001.
3. The State of Tripura, represented by Secretary, GA(P&T) Department, Government of Tripura, New Secretariat, P.O.:
Secretariat Agartala, PIN 799010.
4. The Secretary, GA(P&T) Department, Government of Tripura, New Secretariat, P.O.: Secretariat Agartala, PIN 799010.
5. The Secretary, Finance Department, Government of Tripura, New Secretariat, P.O.: Secretariat Agartala, PIN 799010.
-----Respondent(s) 4. WP(C) No.629/2019 Smt. Swapna Sarkar, D/O. Jatindra Ch. Sarkar, Ramnagar Road No.-11, P.O.-Ramnagar, P.S.-West Kotowali, Dist.-West Tripura, Sub. Div-Sadar, Pin-799002.
----Petitioner(s) Versus
1. The Tripura Public Service Commission, represented by the Secretary, Agartala, Tripura West, PIN 799001.
2. The Secretary, Tripura Public Service Commission, Agartala, Tripura West, PIN 799001.
3. The State of Tripura, represented by Secretary, GA(P&T) Department, Government of Tripura, New Secretariat, P.O.:
Secretariat Agartala, PIN 799010.
4. The Secretary, GA(P&T) Department, Government of Tripura, New Secretariat, P.O.: Secretariat Agartala, PIN 799010.
5. The Secretary, Finance Department, Government of Tripura, New Secretariat, P.O.: Secretariat Agartala, PIN 799010.
-----Respondent(s) Page 3 of 14 5. WP(C) No.630/2019 Smt. Bharati Sarkar, W/O. Santosh Das, Vill/Town:-West Joynagar, Upendra Para, P.O.-Agartala, P.S.-West Kotowali, Dist.-West Tripura, Pin-799001.
----Petitioner(s) Versus
1. The Tripura Public Service Commission, represented by the Secretary, Agartala, Tripura West, PIN 799001.
2. The Secretary, Tripura Public Service Commission, Agartala, Tripura West, PIN 799001.
3. The State of Tripura, represented by Secretary, GA(P&T) Department, Government of Tripura, New Secretariat, P.O.:
Secretariat Agartala, PIN 799010.
4. The Secretary, GA(P&T) Department, Government of Tripura, New Secretariat, P.O.: Secretariat Agartala, PIN 799010.
5. The Secretary, Finance Department, Government of Tripura, New Secretariat, P.O.: Secretariat Agartala, PIN 799010.
-----Respondent(s) 6. WP(C) No.631/2019 Sri Alok Deb, S/O. Lt. Arun Kumar Deb, resident of Kamalakanta Para, Uttar Indranagar, P.O.-Indranagar, P.S.-Capital Complex, Dist.-West Tripura, Pin-799006.
----Petitioner(s) Versus
1. The Tripura Public Service Commission, represented by the Secretary, Agartala, Tripura West, PIN 799001.
2. The Secretary, Tripura Public Service Commission, Agartala, Tripura West, PIN 799001.
3. The State of Tripura, represented by Secretary, GA(P&T) Department, Government of Tripura, New Secretariat, P.O.:
Secretariat Agartala, PIN 799010.
4. The Secretary, GA(P&T) Department, Government of Tripura, New Secretariat, P.O.: Secretariat Agartala, PIN 799010.
5. The Secretary, Finance Department, Government of Tripura, New Secretariat, P.O.: Secretariat Agartala, PIN 799010.
-----Respondent(s) 7. WP(C) No.632/2019 Sri Bimal Bhowmik, S/O. Late Nikhil Bhowmik, resident of Chanmuri, P.O.-Tebaria, Dist.- Tripura West, Pin-799015.
----Petitioner(s) Versus Page 4 of 14
1. The Tripura Public Service Commission, represented by the Secretary, Agartala, Tripura West, PIN 799001.
2. The Secretary, Tripura Public Service Commission, Agartala, Tripura West, PIN 799001.
3. The State of Tripura, represented by Secretary, GA(P&T) Department, Government of Tripura, New Secretariat, P.O.:
Secretariat Agartala, PIN 799010.
4. The Secretary, GA(P&T) Department, Government of Tripura, New Secretariat, P.O.: Secretariat Agartala, PIN 799010.
5. The Secretary, Finance Department, Government of Tripura, New Secretariat, P.O.: Secretariat Agartala, PIN 799010.
-----Respondent(s) 8. WP(C) No.633/2019 Sri Haripada Das, S/O. Late Abinash Ch. Das, Vill/Town:-
Khejurbagan, P.O.-Kathal Bagan, Dist.- West Tripura, Pin-799006.
----Petitioner(s) Versus
1. The Tripura Public Service Commission, represented by the Secretary, Agartala, Tripura West, PIN 799001.
2. The Secretary, Tripura Public Service Commission, Agartala, Tripura West, PIN 799001.
3. The State of Tripura, represented by Secretary, GA(P&T) Department, Government of Tripura, New Secretariat, P.O.:
Secretariat Agartala, PIN 799010.
4. The Secretary, GA(P&T) Department, Government of Tripura, New Secretariat, P.O.: Secretariat Agartala, PIN 799010.
5. The Secretary, Finance Department, Government of Tripura, New Secretariat, P.O.: Secretariat Agartala, PIN 799010.
-----Respondent(s) For Petitioner(s) : Mr. Somik Deb, Advocate, Mr. C.S. Sinha, Advocate, Mr. Anujit Dey, Advocate, Ms. Swarupa Chisim, Advocate.
For Respondent(s)-State : Mr. Mangal Debbarma, Addl. G.A. For Respondent(s)-TPSC : Mr. Raju Datta, Advocate.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI Date of hearing and judgment: 12th March, 2020.
Whether fit for reporting : NO.
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JUDGMENT & ORDER(ORAL)
These petitions arise in common background. They have been heard together and would be disposed of by this common judgment.
2. Facts being broadly similar, may be noticed from WP(C) No.390 of 2019:
Petitioners have challenged a communication dated 11.01.2019 issued by the Government of Tripura to the Tripura Public Service Commission (TPSC, for short) under which the request of the staff members of TPSC for providing them regular pay scale from the initial appointment came to be rejected.
3. This challenge arises in following background:
The service conditions of the staff of the TPSC are regulated by the Tripura Public Service Commission Regulations, 1972 (hereinafter to be referred to as "the said Regulations"). TPSC had issued advertisements on various occasions in the year 2008, 2012, 2014 etc. for filling up the posts of Lower Division Clerk-cum-
Typist on fixed salary basis. The petitioners applied in response to such advertisements. They were selected and appointed on such posts on different dates. Their appointments were on fixed salary basis for a period of 5(five) years upon completion of which they would be brought on regular pay scales. They first approached the Government and through applications under Right to Information Act collected information regarding the pay scale and other service conditions of the staff of Tripura Civil Secretariat Service. Armed with such information, they made representations to the TPSC. One Page 6 of 14 such representation dated 22.05.2017 is produced at Annexure-5 to this petition. In such representation, the representationists relied on Regulations 18 and 20 of the said Regulations and contended that their pay scales and other service conditions should be at par with the staff of Tripura Civil Secretariat Service. They pointed out that the Group-C and Group-D staff of the said service is recruited on regular basis and placed in regular pay scales from inception.
They, therefore, requested that they may also be given regular pay scales from the date of their appointments.
4. At one stage TPSC and the State Government deliberated on such demand of the petitioners. However, upon full consideration, the Government issued the impugned communication dated 11.01.2019 regretting the request stating that there is no justification for providing the same as the said staff members have been recruited on fixed pay basis against regular pay scale posts which were kept in abeyance and any such decision would go against the existing system and practices followed by the Government. Thereupon these petitions have been filed.
5. Appearing in some other petition [WP(C) No.390/2019] learned counsel Mr. Somik Deb drew my attention to the said Regulations and in particular, Regulations 18 and 20 thereof. He submitted that as per these Regulations all service conditions of the staff of TPSC should be at par with the staff of similar cadres of Tripura Civil Secretariat Service. In case of such staff members, undisputedly their appointments are made on regular pay scales from inception. The respondents cannot deny similar benefits to the Page 7 of 14 petitioners. He further submitted that reliance of the respondents on a memorandum dated 15.12.2001 is misplaced. Firstly, the same is merely an executive instruction and cannot override statutory regulations and secondly, it is a decision of the Government and not that of TPSC and lastly, the recruitment of the petitioners was made by the TPSC and that, therefore, also the said memorandum is inapplicable in the present case.
6. Learned counsel for TPSC Mr. Raju Datta relied on the affidavit-in-reply and submitted that the advertisement clearly indicated that appointments shall be made initially for a period of 5(five) years on fixed salary. This was done by keeping the regular posts in abeyance. The petitioners accepted such appointments without any protest.
7. Learned Addl. Government Advocate Mr. Mangal Debbarma also relied on the affidavit-in-reply filed on behalf of the State authorities and submitted that petitioners have filed these petitions after long delay. They had applied in response to the advertisements issued by the TPSC which clearly indicated that the posts will be filled up on fixed salary basis for a period of 5(five) years upon successful completion of which only the employee would be brought on regular pay scale. Having accepted such terms and conditions long ago, the petitioners cannot challenge the decision of the authorities in this respect. In any case, the Regulations 18 and 20 of the said Regulations have no applicability in the present case, since the petitioners were never appointed on regular posts under Page 8 of 14 TPSC. They, therefore, cannot equate terms and conditions of service with the regular staff of Tripura Civil Secretariat Service.
8. To resolve the controversy, we may peruse the materials on record more minutely. Article 318 of the Constitution of India pertains to power to make regulations as to conditions of service of members and staff of the Commission. Clause (b) of Article 318, inter alia, provides that in case of a State Commission, the Governor of the State may by regulations make provision with respect to the number of members of the staff of the Commission and their conditions of service. In exercise of powers conferred under Article 318 of the Constitution of India, the Governor of Tripura had framed the said regulations with respect to the composition and staff of the Tripura Public Service Commission, their tenure of office and conditions of service. Part-VII of the said Regulations pertains to staff of the Commission and their service conditions. Regulation 15 contained in Part-VII provides that the staff of the Commission may include a Secretary, Joint Secretary, Deputy or Under Secretary, Section Officer and such other gazetted and non-gazetted staff as the Governor may from time to time determine in consultation with the Commission. Regulation 18 pertains to the ministerial non-gazetted staff and Class-IV staff of the Commission and reads as under:
"18. The Ministerial non-gazetted staff and the class-IV staff shall be appointed by the Secretary (with the approval of the Commission) and they shall receive such emoluments as admissible to the Government servants of corresponding grades in the Tripura Civil Secretariat."Page 9 of 14
9. Part-VIII of the said Regulations contains residuary clauses. Regulation 20 contained in the said part reads as under:
"20. In respect of any matter for which no express provision has been made in the Regulations, the conditions of the service of the officers and other staff of the Commission shall be governed by the rules and orders for the time being applicable for such class of Government servants of corresponding grades of the Tripura Secretariat Service."
10. The Government of Tripura had issued a memorandum dated 15.12.2001 envisaging appointments to Group-C and D posts which are not required to be filled up by selection through TPSC to be made on fixed pay basis. For such purpose posts with fixed pay would be created by keeping the posts in time scale in abeyance. The said memorandum reads as under:
"M E M O R A N D U M Subject: - Fixed Pay-Recruitment on-in Group C and D posts.
In order to have reasonable flexibility to recruit eligible candidates on fixed pay basis to posts meant for direct recruitment it has been decided that henceforth appointments to Group-C and Group-D posts which are not required to be filled up by selection through the TPSC, may be made on fixed pay basis. For this purpose, posts with fixed pay should be created by keeping the posts in time scale, in abeyance with the concurrence of GA(AR)/PCD/FD. The quantum of fixed pay in respect of such posts will be fixed with prior approval of the Finance Department.Page 10 of 14
2. It has also been decided that wherever interview has been completed or selection has been made for posts having scale of pay, the selected candidates may be offered appointment on fixed pay basis. If such offers are not accepted, steps should be taken for holding fresh selection after creating fixed pay posts as indicated above.
3. All Departments/Heads of Departments are requested to take necessary action accordingly."
11. In tune with such policy decision of the State Government, the TPSC whenever the need arose to recruit Group-C or D staff, issued advertisements inviting applications from eligible candidates. A copy of one such advertisement is produced at Annexure-1. Relevant portion of this advertisement reads as under:
"Applications through on-line (Computerized) method are invited for Competitive Examination followed by Type-Test and Personality Test from the bonafide Indian nationals for 5(five) Nos. (Permanent) all UR vacant posts of Lower Division Clerk-Cum-Typist under the Tripura Public Service Commission Secretariat, Agartala.
xxx xxx xxx Emoluments: Fixed Rs.2145/- per month for 5(five) years period as per existing government order. Thereafter he/she will be entitled for the scale of pay of Rs.3,300-7,100/-, or as revised time to time."
12. The petitioners applied in response to the said or similar such advertisements. They were appointed on the post of LDC- Cum-Typist (Group-C) on fixed salary. One such appointment order dated 10.05.2013 produced at Annexure-2 reads as under: Page 11 of 14
"O R D E R. In reference to the letter of acceptance dated 03-05-2013 of the Offer of appointment issued vide this Office Memorandum No.F.1(23)/ ADMN/ TPSC/2008 dated 29-04-2013 Sri Debajit Dey(UR) is hereby appointed in the post of Lower Division Asstt.-cum-Typist (Gr-C) on fixed pay of Rs.5960/- only per month on temporary basis in the Tripura Public Service Commission with effect from the date of his joining in the post subject to the same terms & conditions as laid down in the Memorandum under reference.
2. Sri Dey is entertained against one of the vacant posts of LDC created on fixed pay basis by keeping the similar number of permanent post in time scale, in abeyance vide General Administration (Personnel & Training) Department letter No.F.35(2)- GA (P&T)/72 dated 30-01-2012.
3. The expenditure involved on this account is debitable to the Head of Account 2051-00-102-05- 51-01-Salary.
4. He should join duty by the 07th June, 2013."
13. It can thus be seen that adopting the Government policy of engaging Group-C and D staff initially on fixed salary for a period of 5(five) years before bringing them over to regular pay scales, TPSC had issued advertisements inviting applications for such purpose. The selected candidates including the petitioners were appointed on fixed salary basis. For such purpose, the posts in the regular pay scales were kept in abeyance. Those who completed satisfactory service of 5(five) years have been brought on regular pay scales. The request of the petitioners, however, is that they Page 12 of 14 should have been appointed on regular pay scales from inception. In this context, they placed heavy reliance on Regulations 18 and 20 of the said Regulations.
14. These Regulations do envisage parity of pay and other service conditions of the ministerial staff of TPSC with that of the employees of corresponding grades in Tripura Civil Secretariat. Regulation 18 in particular provides that the ministerial non- gazetted staff and class-IV staff shall be appointed by the Secretary and they shall receive such emoluments as admissible to the Government servants of corresponding grades in the Tripura Civil Secretariat. As long as this Regulation applies, having resort to Regulation 20 would be unnecessary. In any case, this Regulation 20 which is in the nature of a residuary clause also provides that in respect of any matter for which no express provision has been made in the Regulations, the conditions of service of the officers and other staff of the Commission shall be governed by the rules and orders for the time being applicable for such class of Government servants of corresponding grades of the Tripura Secretariat Service. Regulation 18 by incorporation adopts the prescription for emoluments for the ministerial and class-IV staff of the TPSC as those prescribed for corresponding grades in Tripura Civil Secretariat. Regulation 20 which, as noted, is in the nature of a residuary clause again refers to conditions of service of the officers and staff of the Commission to be as applicable for such class of the Government servants of corresponding grades of the Tripura Secretariat Service, in respect of matters for which no express provision has been made in the Regulations. Page 13 of 14
15. However, when the TPSC made an arrangement by adopting Government policy for engaging a person on Group-C post on fixed pay on temporary basis, their service conditions would be governed neither by Regulation 18 nor Regulation 20 of the said Regulations. Such arrangement was made by keeping the posts in regular pay scale in abeyance. It was only upon completion of the requisite years of service that they were brought on regular pay scales and thereby occupied a permanent post in pay scales prescribed for such post. It was thereafter that Regulation 18 would kick in requiring the TPSC to pay them same emoluments as prescribed for employees of similar cadre of Tripura Civil Secretariat Service. In relation to other service conditions if no Regulation is made, Regulation 20 would ensure that the service conditions would be at par with the service conditions of similar grade of employee of Tripura Civil Secretariat Service.
16. The contention of the learned counsel for the petitioners that the Government memorandum dated 15.12.2001 would cover only those appointees where appointments are not required to be filled up by selection through TPSC, cannot be accepted. Prima facie, it would appear that in the said memorandum dated 15.12.2001 which covers the cases of Group-C and Group-D posts under the Government for which initial appointment is to be made on fixed pay basis, only for greater emphasis the reference is made that such posts which are not required to be filled up by selection through TPSC. In any case, nothing is brought to my notice to hold that the posts on which the petitioners were appointed were such Page 14 of 14 where the same can be made only through the Public Service Commission. Merely because the petitioners were the employees of the Commission, their engagements were made by the Commission in its administrative capacity, would not bring them at par with other Government cadres where on account of a statutory prescription looking to the level of the post, selection and recruitment is to be made through the Public Service Commission which enjoys the constitutional status.
17. One incidental issue which also occupies my mind is that the advertisements for recruitment specified in clear terms that initial engagement would be on temporary basis on fixed monthly salary for a period of 5(five) years. This would necessarily narrow down the pool of competition as compared to an invitation to apply to all eligible candidates where from the inception the appointment is to be made on regular pay scale. Whether the petitioners having responded to such advertisements, competed along with other candidates who were prepared to accept such terms and conditions of engagement, should they be allowed to challenge the very condition that too after long period of their initial engagement is also a relevant question. However, in the present case, it is not necessary to go into this larger question.
18. In the result, petitions are dismissed.
Pending application(s), if any, also stands disposed of.
(AKIL KURESHI), CJ Pulak