Anal Biswas And Ors vs State Of Tripura And Ors

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[1] Both these writ petitions being W.P.(C) No.515 of 2018 [Sri Anal Biswas vs. State of Tripura & Ors.], W.P.(C) No.527 of 2018 [Sri Rati Ranjan Das vs. State of Tripura & Ors.], W.P.(C) No.528 of 2018 [Sri Sahadeb Debnath vs. State of Tripura & Ors.], W.P.(C) No.529 of 2018 [Sri Dipu Rabi Das vs. State of Tripura & Ors.], W.P.(C) No.530 of 2018 [Smt. Nasrat Parvin vs. State of Tripura & Ors.], W.P.(C) No.531 of 2018 [Sri Debasish Kar vs. State of Tripura & Ors.], W.P.(C) No.532 of 2018 [Sri Prasanta Tripura vs. State of Tripura & Ors.], W.P.(C) No.533 of 2018 [Sri Dipankar Majumder vs. State of Tripura & Ors.], W.P.(C) No.534 of 2018 [Sri Debangshu Das vs. State of Tripura & Ors.], W.P.(C) No.535 of 2018 [Sri Bernard N. Hrangkhawal vs. State of Tripura & Ors.], W.P.(C) No.536 of 2018 [Sri Samaresh Das vs. State of Tripura & Ors.], W.P.(C) No.537 of 2018 [Sri Saral Bahadur Molsom vs. State of Tripura & Ors.], W.P.(C) No.538 of 2018 [ Sri Ashim Kr. Roy vs. State of Tripura & Ors.], W.P.(C) No.539 of 2018 [Sri Sarin Chandra Molsom vs. State of Tripura & Ors.], W.P.(C) No.540 of 2018 [Sri Abhijit Mitra vs. State of Tripura & Ors.], W.P.(C) No.541 of 2018 [Sri Arup Sil Sarma vs. State of Tripura & Ors.], W.P.(C) No.542 of 2018 [Sri Batayan Chakma vs. State of Tripura & Ors.] and W.P.(C) No.741 of 2018 [Sri Kinkar Bhowmik vs. State of Tripura & Ors.] are clustered for disposal by a common judgment inasmuch the petitioners are similarly circumstanced and they are urging for the identical relief viz. quashing of the communications dated 20.09.2014, 05.05.5018 and the memorandum dated 08.05.2018 [Anexures-15,17 & 18 respectively to the writ petition being W.P(C) No.515 of 2018, the lead case], direction on the respondents to restore the benefit of Assured Career Progression [ACP] in favour of the petitioners and prohibition against the respondents from acting in furtherance of the communications dated 20.09.2014, 05.05.2018 and the memorandum dated 08.05.2018 [Anexures-15,17 & 18 of the lead case].

[2] Ex post facto sanction for creation of 58 posts of Computer Operators was issued on 18.03.2002 for 6 posts, on 18.03.2002 for 30 posts and on 05.04.2002 for 22 posts under the Directorate of Information Technology, Department of Industries and Commerce, Government of Tripura with fixed monthly pay of Rs.4,000/-. It may be noted by the notification dated 18.03.2002, the Ministry of Communication and Information Technology, Govt. of India had assured that expenditure involved for the said purpose i.e. extension of services to the people shall be made by them for a period of 5 years. That notification was issued with consultation with the Finance Department, Government of Tripura. By publishing an employment notice that those posts were filled up through a selection process, comprised of written test and interview. All the petitioners were thus appointed as the Computer Operator for Community Information Centre [CIC in short] on contract basis for a period of 2 years with stipulation that the appointments were purely temporary. By the notification under No.F.(6)/DITCIC/2003/4858-91 dated 30.05.2003, yearly increment of Rs.500 was declared for the petitioners on successful completion of two years of their service. Thereafter, for ensuring more effective administrative purpose and the functioning of the CICs, the Commissioner and Secretary, Depratment of Industries and Commerce, Government of Tripura by the memorandum No.F.(23)/DIT/CIC/2003/2706-741 dated 21.08.2003 [Annexure-4 to the lead case] transferred the posts of computer operators created for CICs in various blocks, to the control of the respective District Magistrates. The appointment of those computer operators were extended for further 3 years by the concerned DM & Collector by various memoranda. On 24.12.2007, the Joint Secretary, Rural Development Department, Govt. of Tripura by his office order No.F.8(4)-RD/06(Shadow)/5879-82 dated 24.12.2007 transferred 52 posts of the competitor operators from the IT Department, Govt. of Tripura to Rural Development [RD] Department with immediate effect with stipulation that the computer operators would draw a fixed monthly pay of Rs.3000/-. In the said office order dated 24.12.2007, it was noted that the past services of the computer operator would be counted. As sequel to the said order dated 24.12.2007, a further communication dated 31.01.2008 was made to the DM & Collector transferring all 58 posts of computer operators of the RD Department, Govt. of Tripura to the respective DM & Collectors with effect from 01.11.2007. By the memorandum under No.8(4)-RD/06(Shadow-I) dated 29.12.2008 issued by the Commissioner and Secretary, RD Department, the petitioners on their completion of 6 years of service, were favoured with an offer of appointment to the temporary post of computer operator [CIC], Group-C, non-gazetted in the regular pay scale of Rs.4200-8650/-per month along with other allowances etc. The said appointment was effected on 01.12.2008. On completion of 6 years of service without break, computer operators as stated were appointed against the fixed pay posts created by the Deparmtne of Industries and Commerce, Directorate of Information and Technology with prior concurrence of the Finance Department, Govt. of Tripura. By the notification under No.4/RD/2006(Shadow-I)/2995 dated 27.06.2009 the respondents released the regular pay scale of Rs.4200-8650/- w.e.f. 01.12.2008 to 52 computer operators including the petitioners. By the notification dated 27.06.2009 which was so issued with the concurrence of the Finance Department, the Government of Tripura unambiguously noted that the past service of 52 computer operators in the RD Department would be counted for 'future service benefits'. There is no dispute that by the notification under No.F.8(4)-RD/06(Shadow-I)/1257 dated 07.07.2012, the recruitment rules were framed for the post of Sr. Computer Assistant under the RD Department, Government of Tripura. In that stage, the DM & Collectors in exercise of the power provided by Rule 10 (1) of the Tripura State Civil Services [Revised Pay] Rules, 2009 [ROP Rules, 2009 in short] issued the order dated 28.11.2013 allowing the benefit of Assured Career Progression [ACP in short] with effect from relevant and respective dates as noted against each of the government servants including the petitioners on their completion of 10,17 and 25 years of service. On 28.11.2013, the government servants were allowed one increment with the pay in the existing pay-band and grade pay and next available grade pay as the benefit of financial up-gradation under ACP in furtherance of the notification dated 27.06.2009 and the order dated 28.11.2013 [Annexures-11 and 13 respectively]. In accordance with the provision of ROP Rules, 2009, one of the Block Development Officers, Rupaichari RD Block issued the memorandum dated 17.12.2013 [Annexure-14 to the lead case], allowing a few of the petitioners benefits of ACP-I for their completion of 10 years of continuous service in the post of the Sr. Computer Assistant in the RD Department without any promotion whatsoever. By the memorandum dated 17.12.2013, the petitioner in the lead case was granted benefit of financial up-gradation by way of grant of ACP-I but by the communication under reference No.F.8(4)-RD/06(Shadow-I)/1712 dated 20.09.2014 [Annexure-15 to the lead case], the Dy. Secretary, RD Department, Govt. of Tripura on the basis of the opinion rendered by the Finance Department directed that the Sr. Computer Assistants who had been allowed the benefit of ACP taking the length of the contract service to refund the excess amount paid to them else that will be recovered inasmuch as they are not entitled to such benefit [ACP-I]. Their past service on contract basis cannot be added to the qualifying service as required under Rule 10[1] of the ROP Rules, 2009 as modified. Being aggrieved, the petitioners have filed these writ petitions.

[3] On 20.03.2008 [vide Annexure-16 to the lead case] the Under Secretary, RD Department, Govt. of Tripura made a communication to all DM & Collectors, Government to Tripura under No.F.18(83)/RD/2017(P)/342 requesting them to send the latest status report regarding the grant of benefit under ACP-I. Finally, by the order 08.05.2018 [Annexure-18 to the lead case], the respondents had withdrawn the benefit of ACP-I in terms of Rule 10(1) of the ROP Rules, 2009. Rule 10(1) of the ROP Rules, 2009 provides that all government employees in the PB-1,2 & 3 shall be entitled to get maximum of 3 financial up-gradations, the first after 10 years of service, second after 7 years of service [total 17 years] and after further 8 years of service [total 25 years] in their service career. By the order dated 28.11.2013 [Annexure-13 to the lead case] one increment had been provided to the government servants on their existing pay band as a benefit of financial up-gradation under ACP but that would be only entitled to those employees who will continue to remain in their existing pay band. In terms of the said scheme as reflected in the notification dated 27.06.2009 [Annexure-11 to the lead case] and the order dated 28.11.2013 [Annexure-13 to the lead case] the benefit of ACP-I as accorded to the petitioners on their completion of 10 years of continues service inclusive of the period spent on contract service in the post of Sr. Computer Assistant in the RD Department as in the interregnum there was no promotion. But the Finance Department was of the opinion that the contractual period of service rendered by a government servant cannot be taken into account for completing the required period of service for granting the benefits of ACP. By the communication dated 20.09.2014 [Annexure-15 to the lead case], the benefit as granted to the petitioners under ACP was cancelled and it was directed that the excess amount paid to the petitioners on that account be recovered. By the communication dated 05.05.2018 [Annexure-17 to the lead case], the Under Secretary, RD Department, Govt. of Tripura asked the District Magistrates to send the updated status in respect of grant of benefit under ACP to the Sr. Computer Assistants, RD Department, Government of Tripura posted in the various districts. By the letter dated 05.05.2018, [Annexure-17 to the lead case] in addition to direction to send updated status in respect of grant of benefits under ACP to the Sr. Computer Assistant, RD Department, the District Magistrates were directed to withdraw the benefits, if any, given under ACP-I. The District Magistrates have withdrawn the said benefit as granted to the petitioners as Sr. Computer Assistants under the RD Department. For purpose of reference, Rule 10 (1) of the ROP Rules, 2009 is extracted hereunder:

"10. Introduction of a new scheme titled Assured Career Progression (ACP) Scheme with effect from 1st January, 2006 in replacement of existing CAS introduced under TSCS (Revised Pay) Rules, 1999: (1) Under the new scheme (ACP) all Government employees in the PB-1, PB-2 & PB-3 shall be entitled to get a maximum of three financial up-gradations, the first after 10 years of service under regular scale, 2nd after another 7 years of service (total 17 years) and 3rd after further 8 years of service (total 25 years) in their service career provided the concerned employee had not got up to three numbers of benefits of scale up-gradations including promotions already. In case of PB-4, the employees borne under Grade Pay Rs.3700/- (against pre-revised scale of Rs.7800-15,100/-) under Grade Pay Rs.4500/- (against pre-revised scale of Rs.10000-15100/-) and Grade Pay Rs.4800/-(against pre-revised sale of Rs.10650-15850/-) would be entitled to get 3,2 and 1 financial up-gradations respectively under the scheme provided the concerned employee had not got scale up-gradation including promotion up to 3,2 & 1 respectively already."

[4] The petitioners thereafter have averred that by the memorandum under F.10(2)-FIN(G)/05/Part-I dated 16.10.2007 [Annexure-19 to the lead case] the Government of Tripura has referred to the new system that was introduced in the year 2001 that wherever the fixed pay appointments are made by keeping the regular pay scale in abeyance, they will be entitled to the regular scale of pay on completion of 5 years of service. By a subsequent memorandum under No.10(2)-FIN(G)/05/Part-I dated 15.11.2012 [Annexure-21 to the lead case], it has been clarified by the Finance Department that the employees recruited on the fixed pay basis by keeping the regular scale of pay in abeyance and on observance of all required procedures including adherence to provisions of the Recruitment Rules are to be treated at par with the employees recruited in regular pay scale. The period that they served on such fixed pay basis would be part of their regular service and as such, maintenance of a separate seniority list for that category of employees has been discarded. Further, it has been provided in the said memorandum dated 15.11.2012 that the period spent on fixed pay basis shall be counted for purpose of consideration for promotion to the next higher grade.

[5] Mr. Somik Deb, learned counsel appearing for the petitioners has submitted that since the petitioners served as the fixed pay employees, their service should be counted for all purposes. Mr. Deb, learned counsel having referred that on completion of 6 years of service on fixed pay basis, the petitioners were granted the regular pay scale w.e.f. 01.12.2010. Thus, the period of 6 years has to be counted in terms of the said Finance Department memorandum dated 15.11.2012. Hence, the decision of withdrawing the benefit of ACP-I is grossly arbitrary and liable to be interfered with and set aside. The petitioners, by means of these writ petitions, have urged this court to set aside the decisions contained in the communications dated 20.09.2014, 05.05.2018 and the memorandum dated 08.05.2018 [Annexure-15,16 & 18 to the lead case respectively]. The petitioners have also urged for issuance of the writ of prohibition in respect of those communications. It would be appropriate for reference, to reproduce the notification under No.P-4/RD/2006(Shadow-I)/2995 dated 27.06.2009:

"Government of Tripura Rural Development Department No.P-4/RD/2006(Shadow-I)/2995 Dated, Agartala, the 27th June, 2009

NOTIFICATION

The Governor is pleased to grant regular scale of pay of Rs.4200-8650/- to 52 Computer Operator (CIC) (Group-„C‟ Non-Gazetted), after completion of 6(six) years continuous service without break, who were appointed against fixed posts created by Department of Industries and Commerce, Directorate of Information Technology with Finance Department‟s concurrence vide (i) U.O. No.1200/Fin(G) 2002 dated 12.02.2002 (ii) U.O. No.1521/FIN(G)/2002 dated 30.03.2002 (iii) U.O. No.87/Fin(G)/2001 dated 15.05.2001 and subsequently transferred along with incumbents to RD Department vide No.F.23 (1)-DIT/CIC/2006/1844-47 dated 17.11.2007, 2079-81 dated 01.01.2008.

The past services of those 52 Nos. Computer Operators under CIC rendered in IT Department will be counted towards future service benefit.

The benefit of the regular scale have been extended to the incumbents with effect from 1st December, 2008.

This is issued with the concurrence of F.D. communicated vide U.O. No.1299/FIN(G)/08 dated 15,11,2008.

By order of the Governor

Sd/Illegible

26.06.2009

(Sahadeb Das) Joint Secretary to the Government of Tripura"

[Emphasis added]

[6] Mr. Deb, learned counsel appearing for the petitioners has in terms of the decision as reflected in the notification dated 27.06.2009 submitted that the past service of the petitioners has been decided to be counted towards future service benefits. The grant of benefits under ACP shall inescapably include the future service benefits. A few decisions of the apex court have been pressed on promissory estoppels and counting of the past service.

[7] In Syrya Narain Yadav & Ors. vs. Bihar State Electricity Board & Ors., reported in (1985) 3 SCC 38 after discussing Union of India vs. Indo Afgan Agencies, reported in AIR 1968 SC 718, the apex court had occasion to observe that under our jurisprudence, the Government is not exempt from the liability to carry out the representation made by it as to its future conduct and it cannot on some undefined and undisclosed grounds of necessity or expediency fail to carry out the promise solemnly made by it nor can claim to be the Judge of its own obligation to the citizen on an ex-parte appraisement of this circumstances in which the obligation has arisen.

[8] On the aspect of regularization with retrospective benefit of past service, in Secretary Minor Irrigation Department and others vs. Narendra Kumar Tripathi, reported in (2015) 11 SCC 80, it has been contended that since the engagement of the petitioner was not purely stop-gap arrangement, the petitioner will be entitled to get the benefit of the decision as rendered in Direct Recruit Class II Engineering Officers' Association vs. State of Maharashtra, reported in (1990) 2 SCC 715 where it has been held with certainty as follows:

"47. To sum up, we hold that:

(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.

The corollary of 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 for considering the seniority.

(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted."

[9] In Amarendra Kumar Mohapatra & Ors vs. State of Orissa & Ors., reported (2014) 4 SCC 583, the apex court having referred to Union of India vs. Lalita S. Rao, reported in (2001) 5 SCC 384 has observed that if the initiation appointment has not been made in the prescribed procedure laid down by recruitment rules and yet the appointing medical officers were allowed to continue in the post un-interruptedly and then they appeared at the selecting test conducted by the Union Public Service Commission and on being selected their services to be regularized, then there would be any justification in not applying the principle as laid in Direct Recruit Class II Engineering Officers' Association (supra). The reference has been made to Urmala Gram Panchayet vs. Secretary, Municipal Employees Union and others, reported in (2015) 12 SCC 775 and State of Jammu and Kashmir & Ors. vs. District Bar Association, Bandipara, reported in (2017) 3 SCC 410 to further strengthen the contention that the decision in State of Karnataka vs. Uma Devi (3), reported in (2006) 4 SCC 1 cannot stand in the way to arrive at the inference that the petitioners are entitled to get the benefit of their past service, even otherwise than the decision as embodied in the notification dated 27.06.2009. It has been observed in District Bar Association, Bandipara (supra) that the right on the basis of long continuance and the legitimate expectation from the state action as contemplated in the directive principles under Chapter V of the Constitution of India would obligate the state to take appropriate measure, firstly to take steps for regularization and secondly, to protect their security.

[10] According to the learned counsel appearing for the petitioners, the appointments are not dehors the rule and as such, the right of the petitioners to be considered for regularization did exist as the dominant paradigm. In State of Haryana vs. A.H.T.S. Asson. and Ors., reported in (2002) 8 SCC 4 the aspects of regularization had been considered but in this writ petition the core issue is whether the past service of the petitioners on contractual basis can be counted for future benefits. The law has been further consolidated in State of Punjab & Ors. vs. Gurdeep Kumar Uppal and Ors, reported in (2003) 11 SCC 732. It has been held in Gurdeep Kumar Uppal (supra) that only the regular service would be counted for purpose of determining the seniority. This decision does not have any bearing on the present controversy, except for a remote purpose.

[11] In reply, Mr. D. Sharma, learned Addl. G.A. appearing for the respondents has quite forcefully submitted that the petitioners were serving as the contractual employees on fixed pay basis and those posts were not created keeping the regular pay scale in abeyance. Thus, the benefits granted to those categories of employees cannot be replicated in the case of the petitioners. Mr. Sharma, learned Addl. G.A. has contended that the petitioners were not appointed, in accordance with the recruitment rules. Thus, their recruitment cannot be treated as the recruitment in accordance with the rule. Mr. Sharma, learned Addl. G.A. has submitted that the period of 10 years of service for purpose of grant of benefits under ACP cannot be reckoned from the initial appointment of the petitioners in the year 2002. The post against which the petitioners were adjusted were created by the memorandum No.F.8(4)-RD/06(Shadow-I)/6921 dated 29.12.2008. The period prior to the sanction of the post by the said memorandum dated 29.12.2008 cannot be counted for any purpose. Thus, the concerned authority had rightfully directed to withdraw the benefit of ACP, wrongfully given to few petitioners. However, those benefits could not be withdrawn for the interim protection granted to the petitioners by this court. The petitioners would be entitled to such benefit on their completion of 10 years of service counting form 31.12.2008 when their service was absorbed against the regular post. Thereafter, Mr. Sharma, learned Addl. G.A. has restated that the initial appointment of the petitioners on fixed pay basis were not made keeping the regular scale in abeyance. According to the amendment of Rule 10 of Tripura State Civil Service [Revised Pay] Rules, 2009 the petitioners are not eligible for benefit of ACP-I, as unless the period of contractual service is counted the petitioners do not complete the requisite years of service for having the benefit of ACP-I. It has been further submitted that their regularization against the post sanctioned by the Finance Department has to be counted as fresh appointment. He has relied on a series of decisions of the apex court to assert that the past service cannot be counted.

[12] Reliance has been placed on a series of decisions of the apex court on counting of past service for being regularized in later point of time. In State of Haryana vs. A.H.T.S. Asson. (supra) it has been observed as follows:

"10. Under Rule 6 of the Recruitment Rules, recruitment to the service in the cadre post could be made both by way of direct appointment as well as by promotion in the proportion from different sources mentioned in the said rule. Sub-rule (3) of Rule 6 authorises appointment to a cadre post as stoppage arrangement from sources other than the allotted source when a candidate from the allotted source is not available from source 1 & 3, but such appointee is liable to be reverted to his original cadre when a candidate from the allotted source is available and the period of service rendered by such person shall not be reckoned for the purpose of his seniority.

Sub-rule (4) of the Rules thus enables the State Government to fill up a short-term vacancy in the exigencies of public service after recording reasons for a period not exceeding six months in each case without resorting to the select list prepared under Rule 9."

[13] In State of Haryana and others vs. Vijay Singh and others, reported in (2012) 8 SCC 633, the apex court having referred District Bar Association, Bandipara (supra) and State of West Bengal vs. Aghorenath Dey, reported in (1993) 3 SCC 371 has observed as follows:

"27. In M.K. Shanmugam v. U.O.I. (supra), another three Judge Bench referred to theafore mentioned two judgments and observed:

If the adhoc selection is followed by regular selection, then the benefit of ad hoc service is not admissible if ad hoc appointment is in violation of the rules. If the adhoc appointment has been made as a stopgap arrangement and where there was a procedural irregularity in making appointments according to rules and that irregularity was subsequently rectified, the principle to be applied in that case was stated once again. There is difficulty in the way of the appellants to fight out their case for seniority should be reckoned by reason of the length of the service whether ad hoc or otherwise inasmuch as they had not been recruited regularly. As stated earlier, the appellants were regularly found fit for promotion only in the year 1977 and if that period is reckoned their cases could not be considered as found by the Tribunal. The view expressed by this Court in these cases have been again considered in the decisions in Anuradha Bodi (Dr) v. Municipal Corporation of Delhi (1998) 5 SCC 292, Keshav Deo v. State of U.P., (1999) 1 SCC 280, Major Yogendra Narain Yadav v. Bindeshwar Prasad, (1997) 2 SCC 150, I.K. Sukhija v. Union of India, (1997) 6 SCC 406, and Govt. of A.P. v. Y. Sagareswara Rao, 1995 Supp (1) SCC 16, but all these decisions do not point out that in case the promotions had been made ad hoc and they are subsequently regularized in the service in all the cases, ad hoc service should be reckoned for the purpose of seniority. It is only in those cases where initially they had been recruited even though they have been appointed ad hoc the recruitment was subject to the same process as it had been done in the case of regular appointment and that the same was not a stopgap arrangement.

In State of Haryana v. Haryana Veterinary & AHTS Association and another (2000) 8 SCC 4, the three Judge Bench considered the question whether the ad hoc service rendered by the respondents in the cadre of Assistant Engineers can be added to their regular service for the purpose of higher pay scale. While reversing the judgment of the majority of the Full Bench which had ruled in favour of the writ petitioner and declared that ad hoc service was to be clubbed with the regular service for the purpose of grant of financial benefits, this Court held:

A combined reading of the aforesaid provisions of the Recruitment Rules puts the controversy beyond any doubt and the only conclusion which could be drawn from the aforesaid Rules is that the services rendered either on an ad hoc basis or as a stopgap arrangement, as in the case in hand from 1980 to 1982 cannot be held to be regular service for getting the benefits of the revised scale of pay or of the selection grade under the government memorandum dated 2- 6-1989 and 16-5-1990, and therefore, the majority judgment of the High Court must be held to be contrary to the aforesaid provisions of the Recruitment Rules, consequently cannot be sustained. The initial letter of appointment dated 6-12-1979 pursuance to which respondent Rakesh Kumar joined as an Assistant Engineer on an ad hoc basis in 1980 was also placed before us. The said appointment letter unequivocally indicates that the offer of appointment as Assistant Engineer was on ad hoc basis and clauses 1 to 4 of the said letter further provides that the appointment will be on an ad hoc basis for a period of 6 months from the date of joining and the salary was a fixed salary of Rs.400 p.m. in the scale of Rs.400 to Rs.1100 and the services were liable to be terminated without any notice and at any time without assigning any reason and that the appointment will not enable the appointee any seniority or any other benefit under the Service Rules for the time being in force and will not count towards increment in the time scale. In view of the aforesaid stipulations in the offer of appointment itself we really fail to understand as to how the aforesaid period of service rendered on ad hoc basis can be held to be service on regular basis. The conclusion of the high Court is contrary to the very terms and conditions stipulated in the offer of appointment and, therefore, the same cannot be sustained. [Emphasis added]

[14] Finally, in Vijay Singh (supra) the apex court has sounded a caution that the judgments as referred therein cannot be read as laying down a proposition of law. Principles are to be applied in the context of each case.

[15] In State of Rajasthan and Ors. vs. Jagdish Narain Chaturvedi, reported in (2009) 12 SCC 49, it has been asserted that unless the initial appointment was substantive that will not provide liverage to claim on the past service on regularization. It has been observed that while reckoning the required length of service, the period of adhoc service has to be excluded.

[16] In Gurdeep Kumar Uppal (supra) the principle as laid down in A.H.T.S. Asson. (supra) has been approved and restated by the apex court for purpose of giving higher scale of pay only on regular service rendered by the employee.

In Bhupendra Nath Hazarika and another vs. State of Assam & Ors., reported in (2013) 2 SCC 516, the law has been restated. The apex court has referred to Direct Recruit Class II Engineering Officers' Association (supra) and Aghore Nath Dey (supra) to observe as follows:

"55. The aforesaid authorities clearly lay down the principle that when there is violation of the recruitment rules, the recruitment is unsustainable. Whether any active part is played by a selectee or not has nothing to do with the appointment made in contravention of the rules. In the case at hand, the special batch recruits have encroached into the quota of the direct recruits. The whole selection process is in violation of the rules and, therefore, we are inclined to concur with the opinion expressed by the learned single Judge that the selection was made de hors the rules. The Division Bench was not justified in stating that the selection could not be said to be de hors the rules. However, we accept the conclusion of the tribunal as well as the High Court that as there had been long delay in challenging the selection of the special batch recruits and some of them have already retired, it would not be apposite to annul their appointments."

[17] Mr. Sharma, learned Addl. G.A. in order to contend that there cannot be any res judicata in reconsidering the decision inasmuch as there was no adjudication of any lis between the parties nor is there any decision by the quasi judicial authority. It has been categorically observed that no administrative decision binds the court, much less operates as res judicata. In this regard, reference has been made to State of West Bengal vs. Subhas Kumar Chatterjee & Ors., reported in AIR 1010 SC 2927. In response to the claim of promissory estoppel the reference has been made to Kothari Industrial Limited vs. Tamil Nadu Electricity Board and another, reported in (2016) 4 SCC 134. After surveying the precedents it has been inferred in that report that the principle of promissory estoppel cannot have any application unless any right to continuation of concessional tariff is definitely granted.

[18] Mr. Sharma, learned Addl. G.A. has asserted that if it is found that the concession granted by the State was not in accordance with law that can be revoked. In this regard, a decision of the apex court in State of Rajasthan & Anr. vs. J.K. Udaipur Udyog Ltd. & Anr., reported in (2004) 7 SCC 673 has been relied upon. The said decision however does not relate to any concession granted at the time of regularization, but in respect of bringing subsequent change in the scheme, the promise was made. There is no doubt that such scheme can be reviewed and truncated, cancelled or abandoned but without affecting the persons who have altered their position, pursuant to the promise made before the change is brought about. Finally, Mr. D. Sharma, learned G.A. has referred two decisions of the apex court which according to this court has no relevance in the present context inasmuch as there is no delay in the action.

In short, Mr. Sharma, learned Addl. G.A. has contended that concession, if any, is granted and if that is not as per law the Government has power to revoke those benefits. On query from this court, Mr. Sharma, learned Addl. G.A. has admitted that the notification dated 27.06.2009 has neither been modified nor has been revoked.

[19] Having appreciated the submission of the learned counsel appearing for the parties and the records so produced with the writ petitions, this court finds that these cases are wholly covered by a decision of this court in Swasti Ranjan Deb vs. State of Tripura [the common judgment and order dated 05.01.2019 delivered in W.P.(C) No.1601 of 2017 & others.] where this court had occasion to observe as follows:

"[10] From the other side, Mr. A. Bhowmik, leaned counsel for the respondents has submitted that the post against which the petitioners were engaged were not a fixed pay post keeping pay scale in abeyance. The same was a contractual post and the expenditure of paying „remuneration‟ to the petitioner was borne out of fund made available by the Ministry of Communication and Information Technology, Govt. of India. Subsequently, the petitioners were recruited on fixed pay basis in the regular pay scale by the Memorandum dated 29.12.2008. That appointment was on fixed pay basis on 01.12.2008 and the petitioners were brought under regular pay scale on completion of their 6 years of service in the fixed pay basis w.e.f. 01.12.2008 and hence their appointments were fresh appointment w.e.f. 01.12.2008 . They cannot have any claim over their past service from the date of their appointment on contract basis on fixed pay. Thus, the rejection of claim for providing ACP-1 on completion of 10 years of service from the day of their engagement on contract basis is untenable and there is no infirmity in the said decision of the Finance Department which has been questioned in these writ petitions. Having perused the reply filed by the respondents, the stand of the respondents can be gathered from the passages as extracted hereunder:

„XII. That, the contents of the Para 25 to 28 are all denied and in reply thereto, the answering respondents state that, the petitioner was recruited on fixed monthly emoluments on 24.12.2007 and since then, service of the petitioner has been paid under the RD Department, Govt. of Tripura and the expenditure towards such remuneration has been placed out of state funds. Subsequently, the petitioner was granted regular scale of pay w.e.f. 01.12.2008 vide letter dated 26.06.2009. Thus, the past service of the petitioner from 03.10.2002 to 24.12.2007 was under a scheme on contractual basis on contractual remuneration and with the expenditure provided by the Central Govt. Thus, in no way, the pat service of the petitioner can be counted for the purpose of 10 years of service required for grant of ACP-I.

XIII. That, the contents of Para 29 to 39 are all denied and in reply thereto, the answering respondents state that, the contractual engagement of the petitioner was initially for a period of 2 years and thereafter, it was extended for a period of 3 years and after that, the service of the petitioner was placed under the RD Department, Govt of Tripura in year 2007. Since then, the petitioner is under the service of the answering respondents. Subsequently, pay scale was also extended to the petitioner. The past service of the petitioner from 03.10.2002 till 27.08.2007 cannot be counted as highlighted in the proceeding paragraphs. So, the tenure of 10 years as required for grant of ACP-I cannot be reckoned from 03.10.2002. In some cased, ACP-I was erroneously given and thereafter, the same has been cancelled and the department has directed all District Magistrates to withdraw all the benefits wrongly given.‟

[11] There cannot be any amount of doubt that Rule 10 of the ROP Rules clearly provides that on completion of 10 years of service under regular scale a government employee in PB-1, PB-2 and PB-3 shall be entitled to financial up-gradation under ACP. Since the petitioners were not borne in the regular scale the Finance Department has refused to allow the petitioners ACP-1 on completion of 10 years of service from the day when the petitioners were engaged on contract basis as the Computer Operator (CIC) under the Directorate of Information Technology. But the petitioners have based their claim on the policy espoused by the state by their Notification dated 27.06.2009. By the said notification as reproduced it is clearly stated that the past services of those 52 Computer Operators under (CIC) rendered in the IT Department will be counted towards future service benefit. Even though the petitioners sought for clarification of this policy, neither the Finance Department nor any other Competent Authority extended clarification in this regard vis-avis the refusal of ACP-1. From a plain reading of the said policy of granting benefits towards counting the past service of those 52 computer operators under (CIC), it clearly transpires that the purpose of the said policy was to treat the service rendered in the IT Department on fixed pay basis added to their service in the regular establishment. There is no ambiguity in the policy and the policy has been declared under Article 162 of the Constitution of India. [See State of Karnataka Vs KGSD Canteen Employees Welfare Association reported in (2006) 1 SCC 567]. Hence, it has the force of law. A combined reading of the said policy as adverted by the Notification dated 27.06.2009 and the provisions of Rule 10 (1) of the ROP Rules, 2009 would mean that for all purposes the period from the date of engagement on contact basis till 30.09.2008 or whichever is applicable in respect of the individual writ petitioners, shall be deemed and treated as the period spent on the fixed pay keeping the regular pay scale in abeyance in the context of these cases. Hence, this court is of the view that the said provision of being borne in „regular scale‟ for 10 years is liable to be read down in the face of the espoused policy of the Government vide Notification dated 27.06.2009 (Annexure-13 to writ petition), else the said policy would be rendered otiose and to the detriment of the interest of the petitioners. Thus, to allow the said policy achieve its object, it has to be operated in the manner as stated above. Having observed thus, it is declared that the petitioners are entitled to get CAS-I on the day when they have completed 10 years of service from the date of their appointment/engagement in the Directorate of Information and Technology as the Computer Operator (CIC) on fixed pay basis. The respondents are accordingly directed to release the financial up-gradation within three months from the date when the petitioners shall submit a copy of this order to the Principal Secretary to the Govt. of Tripura, Rural Development Department. As consequence, the decision of the Finance Department as available in the communication dated 20.09.2011 (Annexure-21 to the writ petition) and all consequential orders therefrom are interfered with and set aside."

[20] There cannot be any reason to depart from the said decision of this court in Swasti Ranjan Deb (supra). Hence, the decision embodied in the communications dated 20.09.2014 and 05.05.2018 [Amnnexure-15 & 17 of the lead case] and the memorandum dated 08.05.2018 [Amnnexure-18 of the lead case] stand set aside and quashed. The respondents shall restore or continue to give the benefits of ACP-I to the petitioners on the premise that in terms of the decision as reflected in the notification dated 27.06.2009 the petitioners' past service shall be counted towards the future service benefits. The benefit under ACP falls within the purview of 'future service benefits'. The said decision is not a promise but a decision encompassing the past service of the petitioners for future benefits. It augments the stands of the petitioners' contractual service to the regular service for a limited purpose of future benefits. The memorandum dated 08.05.2018 [Amnnexure-18 of the lead case] has been challenged in the writ petitions, and thus there is no tangible delay or laches. It has been stated by the counsel for the petitioners that from some petitioners, the deduction has been made on the plea of excess payment by way of wrongful application of ACP-I. The said amount as deducted on such premise from the petitioners shall be refunded within a period of 3[three] months from the date when the petitioners shall place a copy of the judgment to the respondents.

In view of the aforesaid observations, all these writ petitions are allowed.

No order as to costs.