Bhulan Sangma And Ors vs State Of Tripura And Ors

Heard Mr. D. K. Biswas, learned counsel appearing for the petitioners as well as Mr. D. Bhattacharjee, learned GA appearing for the respondents No.1 and 2, Ms. S. Deb Gupta, learned counsel appearing for the respondents No.3, 5-14, Mr. B. Banerjee, learned counsel appearing for the respondents No.15, 16 and 17, Mr. Samarjit Bhattacharjee, learned counsel appearing for the respondents No.18 and 21, Mr. B. N. Majumder, learned counsel appearing for the respondent No.19 and Mr. Somik Deb, learned counsel appearing for the respondent No.20. When the matter was taken up for consideration, none represented the respondent No.4 despite due notice from this court.

The petitioners in this cluster of writ petitions being W. P.(C) No.1497 of 2017 (Sri Bhulan Sangma vs. The State of Tripura & Ors.), W. P.(C) No.1498 of 2017 (Sri Panendra Tripura vs. The State of Tripura & Ors.), W. P.(C) No.1499 of 2017 (Sri Haridhan Sarkar vs. The State of Tripura & Ors.), W. P.(C) No.1500 of 2017 (Sri Swapan Debnath vs. The State of Tripura & Ors.), W. P.(C) No.1501 of 2017 (Sri Pradip Debnath vs. The State of Tripura & Ors.), W. P.(C) No.1502 of 2017 (Sri Debasish Roy vs. The State of Tripura & Ors.), W. P.(C) No.1503 of 2017 (Sri Prabal Kanti Barman vs. The State of Tripura & Ors.), W. P.(C) No.1504 of 2017 (Sri Kartik Das vs. The State of Tripura & Ors.), W. P.(C) No.1505 of 2017 (Sri Mihir Chandra Bhowmik vs. The State of Tripura & Ors.), W. P.(C) No.1506 of 2017 (Sri Debabrata Mishra Choudhury vs. The State of Tripura & Ors.), W. P.(C) No.1507 of 2017 (Sri Pradip Kumar Murasingh vs. The State of Tripura & Ors.), W. P.(C) No.1508 of 2017 (Sri Talkhumril Ranglong vs. The State of Tripura & Ors.), W. P.(C) No.1509 of 2017 (Sri Swapan Chakraborty vs. The State of Tripura & Ors.), W. P.(C) No.1510 of 2017 (Sri Bishnupada Paul vs. The State of Tripura & Ors.), W. P.(C) No.1511 of 2017 (Sri Subrata Choudhury vs. The State of Tripura & Ors.), W. P.(C) No.1512 of 2017 (Smt. Alaka Kalai vs. The State of Tripura & Ors.), W. P.(C) No.1513 of 2017 (Sri Pathikrit Datta vs. The State of Tripura & Ors.), W. P.(C) No.1514 of 2017 (Sri Dipak Kumar Deb vs. The State of Tripura & Ors.) were indisputably appointed in the post of the Supervisor, ICDS having been recommended by Tripura Public Service Commission (TPSC) by the communication No.F.66(1)-TPSC/98 dated 05.08.2000. By the memorandum No.F.19(43)-DSWE/CONF./ 2007/1452(74) dated 06.08.2007, the final seniority list (Part-II) for the post of Supervisor (RFLP/ICDS)/Social Education Organizer under the Directorate of Social Welfare & Social Education, Government of Tripura as appointed w.e.f. 01.11.1987 to 31.03.2007 in the scale of pay of Rs.1300-3220/- now corresponding to the scale of pay of Rs.4200-8650/- has been published. In the said seniority list, it has been acceded by the petitioner that the names of the persons who were appointed as the Supervisor, ICDS on ad-hoc basis was also incorporated. However, against their name their designation was shown as Supervisor, ad-hoc, ICDS. This is a strange case we are dealing with that when someone is not holding the substantive post, the name has been incorporated in the final seniority list, not mean for the supervisor (ICDS) ad-hoc.

Be that as it may, the petitioners are aggrieved by the memorandum dated 02.06.2017, Annexure-6/B. By four different orders, 12 Supervisors, ICDS who were appointed during 1991-92 on ad-hoc basis under ICDS Scheme were regularised "w.e.f. the date of their appointment (year 1991-92), so that they can get the consequential benefits of seniority and pensions. Similarly, by the memorandum dated 02.06.2017 the persons who were appointed as the Superintendent of Homes on ad-hoc basis in the year 1991-92 were regularised w.e.f. the date of their appointment with consequential benefits of seniority and pension. In the same manner by the memorandum dated 02.06.2017 the persons who were appointed as the Social Education Organiser (M) in the year 1991-92 on ad-hoc basis were also regularised from the date of their appointment on ad-hoc basis in the year 1991-92 with consequential benefits of seniority and pension. Further, the persons who were appointed as the Supervisor, Rural Functional Literacy Programme (RFLP, in short) on ad-hoc basis in the year 1991-92 were also regularised from the date of their initial engagement (the year 1991-92) so that they can also get the consequential benefits of seniority and pension.

By means of these writ petitions, the petitioners have urged this court to set aside and quash the memorandum dated 02.06.2017 by operation of which the respondents had allowed the ad-hoc appointees who were not even borne in the respective cadre (post) when the petitioners were appointed on the regular basis in the post of Supervisor, ICDS so far their seniority is concerned. Accordingly, the petitioners have urged this court to prohibit the respondents from allowing the seniority of those persons who have been regularised retrospectively by operation of the said memorandum dated 02.06.2017.

The facts which are material are admitted. The private respondents, particularly the respondents No.3 to 14, were all appointed on ad-hoc basis in the post of Supervisor, ICDS in the year 1991-92 on various dates. During that time, there was no recruitment rule. The recruitment rules for the post of Supervisor, ICDS under the Education Department came into force when the notification dated 30.09.1997, Annexure-1 of the writ petition, was published. There are two sources of recruitment, one by promotion (50% of the total strength) and the other by direct recruitment (50% of the total strength). So far the promotional post is concerned promotion can be made from the Junior Social Education Organiser which is the feeder post of Social Education Organiser. Moreover, there are certain restrictions, in respect of promotion, on qualification. Those persons [the private respondents] were appointed on ad-hoc basis. A few of them were appointed from the feeder post of Junior Social Education Organiser but others were appointed directly on ad-hoc basis against the direct recruitment quota. According to the said recruitment rules, the direct recruitment can only be made on the recommendation of the Tripura Public Service Commission as such recruitment is not exempted from consultation of the Public Service Commission. It is also not in dispute that all the respondents those were appointed initially on ad-hoc basis, they had filed a series of writ petitions seeking their regularisation against their ad-hoc appointment and the batch of writ petition was dismissed by the judgment and order dated 03.08.2000 delivered in W.P.(C) No.394 of 1999 (Mira Roy and Anr. vs. State of Tripura and Ors.), W.P.(C) No.395 of 1999 (Krishna Mohan Das and Ors. vs. State of Tripura and Anr.), W.P.(C) No.94 of 2000 (Mamata Chakraborty vs. State of Tripura and Ors.), W.P.(C) No.102 of 2000 (Biswajit Sengupta vs. State of Tripura and Ors.) and W.P.(C) No.103 of 2000 (Ramkrishna Bhattacharjee vs. State of Tripura and Ors.).

By the said judgment, the Gauhati High Court had observed that the position of law, as regards regularisation, is very clear that in such circumstances the ad-hoc appointees cannot claim for regularisation and even they do not have any right to continue in those engagements even though vacancies were left available. The direction was given on the respondents to allow those petitioners to appear before the TPSC as and when those posts shall be advertised by relaxing their age and it has been observed that all those petitioners behaved in 'a foolish manner' but that does not mean that the Government should not approach in a manner with magnanimity. Further, it was made clear that two petitioners namely Mira Roy and Juthika Bhattacharjee who were appointed as the Junior Social Education Organiser shall be allowed to continue in that post. A copy of that judgment dated 03.08.2000 has been placed with the writ petition being Annexure-4. Similarly, Nirmalendu Bikash Pal, impleaded as the respondent in this batch of writ petition, filed another writ petition being W. P.(C) No.33 of 2006 but met the similar fate. However, it was left open to the department to consider whether the petitioner may be absorbed in any other post, if cannot be absorbed in the post of Supervisor, ICDS. The respondents were asked to consider the prayer of the petitioners sympathetically with a humane touch. Thereafter, as it appears from the memorandum dated 17.05.2017, the Council of Ministers took up the issue and decided to regularise those persons who could not come successful through TPSC in terms of the judgment dated 03.08.2006 or those who had not appeared in such selection. In various categories, as stated earlier, there were 19 persons who, on the basis of the said resolution and decision of the Council of Ministers, were regularised in the post of Supervisors, RFLP, Social Education Organiser (SEO), Superintendent of Homes and Supervisor, ICDS under the Social Welfare and Social Education Department. In terms of the said decision and by series of memoranda dated 02.06.2017, the private respondents were regularised from the date of their engagement on ad-hoc basis with benefits of seniority and pension from that date. By a separate memorandum dated 07.06.2017, the respondents No.3 to 14 were regularised as the Supervisor, ICDS with consequential benefit of seniority and pension from the date of their initial engagement on ad-hoc basis as the Supervisor, ICDS.

By another memorandum dated 02.06.2017, the respondents No.18 (Smt. Brajabala Debnath) and the respondent No.19 (Sri Sujit Chandra Sen) were regularised as the Superintendent of Homes from the date of their initial engagement on ad-hoc basis with consequential benefits of seniority and pension. By another memorandum dated 02.06.2017, the respondents No.20-21 was appointed as the Social Education Organiser (M) from the date of their initial ad-hoc engagement with consequential benefits of seniority and pension. By a further memorandum dated 02.06.2017, the respondents No.15 (Sri Krishna Chakraborty), 16 (Sri Bholaram Biswas) and 17 (Sri Nipendra Nath) were regularised as Supervisors, RFLP from the date of their initial engagement on ad-hoc basis with consequential benefits of seniority and pension.

Mr. D. K. Biswas, learned counsel appearing for all the petitioners has submitted that the persons who could not succeed in achieving selection and appointment through the process as prescribed by the Recruitment Rules cannot be allowed to steal a march over the persons who have been appointed on regular basis following the prescription of the Recruitment Rules in 2000-01 by virtue of the said memorandum dated 02.06.2017. In this regard, Mr. Biswas, learned counsel has referred a few decisions of the apex court. In R. N. Nanjundappa vs. T. Thimmiah & Anr. reported in 1972 SC 1767, the apex court had occasion to observe that the regularisation dehors the Recruitment Rules is not valid process of appointment. It has been observed that the executive has the power to appoint but that power should have its roots qua Article 162 of the constitution. The State has power to make rules under proviso to Article 309 of the constitution but after such rule is framed, the State has to act under the said rules and they cannot say that they have acted under Article 162 in the same breath. Two Articles operate in different areas. Regularisation cannot be held to be an ordinary form of appointment. Regularisation would mean conferring the quality of permanence of the appointment. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularised. Ratification or regularisation is possible of an act which has been done within the power and province of the authority. There might be some non-compliance with procedure or manner, but that does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting the rules at naught. However, in the present writ petition, the appointments of the private respondents are not in challenge. Moreover, the Council of Minister which holds the power of making the rules under proviso to Article 309 of the Constitution had taken a conscious decision for regularising the services of the private respondents.

In Keshav Chandra Joshi and Ors. vs. Union of India and Ors. reported in AIR 1991 SC 284, the apex court has observed that, in crux, the law as enunciated is that if the initial appointment was dehors the rules, the entire length of service cannot be counted for seniority. The substantive appointment in the substantive capacity would be the date for the appointment for purpose of counting their seniority. It has been further observed in Keshav Chandra Joshi (supra) that it is notorious that confirmation of an employee in a substantive post would take place after long years, even sometimes after the retirement. An employee is entitled to be considered for promotion on regular basis to a higher post if he/she has completed probation successfully in the substantive lower post. An officer appointed by promotion in accordance with the Rules and within the quota and on completion of probation is entitled to reckon his seniority from the date of promotion and the entire length of service, including the period of temporary appointment 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 the equality clause enshrined in Article 14 read with Article 16(1) of the constitution, as in that event, unequals would be treated as equals. When the promotion is outside the quota, the seniority might be reckoned from the date of the vacancy within the quota, if the rules in this regard exists, rendering the previous service fortuitous. In order to do justice to the promotees, it would not be proper to do injustice to the direct recruits. The rule of quota being a statutory one shall strictly be 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 promotees appointed in excess of the quota may level hardship but it is unavoidable and any construction contrary would be illegal, nullifying the force of statutory rules and would again offend Articles 14 and 16(1). Therefore, the rules must be carefully applied and in such a manner as not to violate the rules or equality ensured under Article 14 of the constitution. The apex court has time and again interpreted that equity is an integral part of Article 14. So every attempt would be made to minimise, as far as possible, inequity. Disparity is inherent in the system of working out integration of the employees drawn from different sources, who have legitimate aspiration to reach higher echelons of service. A feeling of hardship to one, or heart burning to either would be avoided. At the same time equality is to be afforded to all the employees.

In a subsequent decision, in State of Orissa and Ors. vs. Sukanti Mohapatra and Ors. etc. reported in AIR 1993 SC 1650 it has been observed that the Government cannot totally shelve the Recruitment Rules and regulate the method of recruitment. It has been observed in Sukanti Mohapatra (supra) as follows:

"7. From what we have discussed so far it does appear that after the Rules were brought into force with effect from January 1, 1976, the recruitment was made in total disregard of the Rules in 1976 and therefore even of those who did not possess the minimum educational qualification prescribed for the job under the Rules. Such recruits have been described as 'irregular'. Rule 14 empowers the Government to relax any rule or rules in public interest for any class or category of persons for reasons to be stated in writing. However, it is clear from the two orders reproduced hereinabove that the regularisation was made for individuals specified in the orders who had made representations and not for any class or category of persons. True it is that the persons named in the orders were irregular appointees but the orders do not say that all irregular appointees will stand regularised under the said orders. Then, the first order of January 3, 1985 says that regularisation is being permitted on compassionate grounds which would depend on the fact-situation of each appointee. Even if it is assumed that these irregular recruits constituted a class or category of persons, Rule 14 could be invoked in public interest only. If compassionate ground-is the public interest for regularisation it is difficult to understand how such a factual aspect can form the basis for public interest. Assuming that their having served for long years is a valid reason for regularisation, that, without anything more, will not meet the requirement of the action being in public interest. Rule 14 requires that the reasons in support of the action being in public interest must be stated in writing but no reason other than 'compassionate grounds' appears in the first order. And what are those compassionate grounds? The order does not provide the answer. The subsequent order of February 14, 1985, does not even pretend to state that the action is in public interest. It is totally silent on this point. It would, therefore, seem that the essential requirement i.e. the condition precedent for the exercise of power under Rule 14, namely, public interest, is not shown to have been satisfied. Next Rule 14 permits relaxation of "any of the provisions of the rules" but does not speak of regularisation. Ex-facie the two orders do not speak of any particular rule or rules having been relaxed but provides for regularising the services of specified individuals whose appointments were outside and inconsistent with the Rules. The reason for exercise of power in the case of nine appointees covered under the order of January 3, 1985 is stated to be "compassionate grounds" and in the case of those covered under the second order of February 14, 1985, no ground at all. Such orders, therefore, cannot have the protection of Rule 14 nor can the appointments be regularised as having been made under the Rules so as to dislodge the seniority of regularly appointed persons."

From a reading of the above passage, it comes out clearly that if the decision of regularisation is taken on considering the plight of the persons substantively appointed earlier to regularisation would have a primacy in all respect, particularly in the matter of seniority over the persons who are appointed by relaxing certain rules subsequent to their appointments as per rules. In the present case also, it appears that the private respondents were regularised by relaxing the rules. As there is no challenge against the regularisation of the private respondents and the writ petitioners have made a limited prayer that their seniority should not be disturbed by the persons who have been regularised almost after two decades in the some posts.

Mr. Somik Deb, learned counsel appearing for the respondent No.20 has categorically stated that the petitioners are all appointed in the post of Supervisor, ICDS whereas the respondent No.20 has been appointed in the post of the Social Education Organiser (SEO) which is completely a different post/cadre. Therefore, there cannot be any question of prejudice or affecting the seniority of the petitioner by the regularisation of the respondent No.20.

Similarly, Mr. B. N. Majumder, learned counsel appearing for the respondent No.19 has submitted that the respondent No.19 has been appointed as the Superintendent of Homes which is distinctly a clear post/cadre from the post of the Supervisor, ICDS. As such, the regularisation of the respondent No.19 cannot affect the seniority of the petitioners who are appointed in the post of the Supervisor, ICDS.

Mr. Samarjit Bhattacharjee, learned counsel appearing for the respondents No.18 and 21 who are respectively appointed as the Superintendent of Homes and Social Education Organiser has submitted that the regularisation of the respondents No.18 and 21 cannot affect the seniority of the petitioners as they are borne in a completely different post.

Similarly, Mr. B. Banerjee, learned counsel appearing for the respondents No.15, 16 and 17 has submitted that those respondents were regularised in the post of the Supervisor, RFLP and these are the completely distinct posts from the Supervisor, ICDS and their regularisation thus cannot affect the seniority of the petitioners.

Ms. S. Deb Gupta, learned counsel appearing for the respondents No.3, 5-14 has equally submitted that the writ petitioners were appointed much after the private respondents and as such they cannot challenge the seniority of the respondents inasmuch when the petitioners were appointed on ad-hoc basis, there was no Recruitment Rules, but there were vacancies. The respondents could have appointed them in the said post without consultation with the TPSC, but that was not so done. But later on, when the Recruitment Rules was framed in the year 1997, when the respondents No.3, 5-14 clamoured for their regularisation and they had approached this court for regularisation. True it is that the court did not direct regularisation, but given a chance to the ad-hoc appointees to participate in the regular process as conducted by the TPSC, but they could not succeed. Ms. Deb Gupta, learned counsel has submitted that it will be unjust if at this point of time their seniority is taken away in view of the fact that the appointment regularly made in favour of the petitioners in the year 2000-01. She has further submitted that in favour of the petitioners, there now exists a consolidated right to continue and get their seniority counted in terms of the memorandum dated 02.06.2017.

Having appreciated the submissions advanced by the learned counsel appearing for the parties and having regard to the law laid down by the apex court, particularly, in Keshav Chandra Joshi (supra), this court is of the view that so far the question of regularisation and its impact on seniority is concerned, the petitioner cannot raise a challenge against the respondents No.15 to 21 as those respondents are holding completely a different post/cadre. So far the respondents No.3 and 5-14 are concerned, the petitioners has right to question the grant of seniority retrospectively from the date of their ad-hoc appointment, which is much prior to the date of appointment of the petitioners in the regular post in observance with a regular selection process conducted by the TPSC. In Keshav Chandra Joshi's case, the apex court has categorically enunciated that the primacy is for those persons who are regularly appointed and not with the persons who have been otherwise appointed on relaxation of the rules. The persons who are regularised afterwards, meaning after appointments of the persons who have been regularly appointed can still march over the regularly appointed. Seniority of the persons who have been regularly appointed prior to those persons who had been later on regularised with retrospective effect cannot be eclipsed by a subsequent order of regularisation or appointment in relaxation of the rules. In normal course the persons who are appointed first, shall possess the higher position in the seniority list and those who are appointed later, they are to occupy the post below them. However, when the seniority position is regulated by a statutory rule, the rule will take its sway in the matter. In the present case, there is no such rule. Only by the memorandum dated 02.06.2017, the respondents No.3 to 14 have been given the retrospective operations of their regular appointment including seniority. According to the court, the said decision of the state is absolutely unsustainable in view of Article 14 of the constitution inasmuch as the unequals have been treated equally by the said decision. But so far the respondents No.15 to 21 are concerned, the petitioners do not have any indefeasible right to challenge their seniority as the petitioners are not affected, in any manner.

Mr. Biswas, learned counsel appearing for the petitioners however, has pointed out that the combined seniority list as prepared for all, the posts for purpose of promotion to the next post of the Child Development Project Officer, CDPO. This aspect of the matter shall be guided by the rule for formation of zone for consideration. However, if under any circumstances, those respondents No.15 to 21 are considered for any service benefit including promotion collectively with the petitioners, the petitioners will be treated senior. Unless that particular 'rule' is challenged, the court should not venture an examination of that aspect. It has been already clarified when the consideration is combined, the petitioners shall be treated above the private respondents in the seniority position.

In view of what has been observed, the challenge against the seniority in respect of the respondents No.15 to 21 stands clarified. But so far the challenge against the respondents No.3 to 14 are concerned who are holding the equal post of Supervisor, ICDS, this court is of the view that those respondents would be entitled to get their regular date of appointment from the respective date of their engagement on ad-hoc appointment for all purposes except seniority. Their seniority position shall never be above the petitioners in this batch of the writ petition for purpose of promotion to the next higher grade or any other superior post but they can enjoy the benefits of the other financial benefit including the stagnation relief under special provisions in the same post, even if the present petitioners are not entitled to such benefit for the length of their service, but enjoyment of such benefit will not create any right whatsoever. Even the petitioners will not be entitled to claim similar benefits assigning the reason that the persons who are below in the seniority position have been deriving such benefits.

In terms of the above, this writ petition stands partly allowed to the extent as indicated above.

There shall be no order as to costs.