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Judgment
All these writ petitions being, WP(C)45 of 2019 [Sri Jash Paul Debbarma Vs. State of Tripura & Ors.], WP(C)46 of 2019 [Sri Pranjit Bhowmik Vs. State of Tripura & Ors.] and WP(C)834 of 2019 [Sri Suman Das Vs. State of Tripura & Ors.] are consolidated for disposal by a common judgment, inasmuch as the perspective facts and challenges are entirely identical, except a few insignificant variations, which have nothing to do with the present controversy.
Indisputably, the petitioners namely, Sri Jash Paul Debbarma [the petitioner in WP(C)45/2019] Sri Pranjit Bhowmik [the petitioner in WP(C)46/2019] and Sri Suman Das [the petitioner in WP(C)834/2019] in response to the advertisement dated 31.03.2008 issued by the Tripura Public Service Commission (TPSC, for short) appeared for direct recruitment to the post of Tripura Forest Service (Grade-II). All the petitioners were selected by the TPSC and recommended for appointment. The petitioners were given offer of appointment laying down the conditions to be fulfilled and the mode of determining their seniority in terms of Tripura Forest Service Rules, 1988. For purpose of better reference, the relevant part of the offer of appointment issued under No. F.2(1)-GA(P&T)/98(L) dated 28.07.2009 (Annexure-3 to the writ petitions) in respect of operation of the extant rules and orders is reproduced hereunder:
"(vi) Other conditions of service will be governed by the relevant rules and orders in force from time to time."
By the said offer of appointment, the petitioners were apprised that they would be bound to undergo the State Forest Service Course (Diploma course in Forestry) on their appointment to the Tripura Forest Service (Gr-II) and for such training the direct recruits were deputed after their appointment in Tripura Forest Service (Gr-II). That apart, in the offer of appointment dated 28.07.2009, in terms of Rule 29 of Tripura Forest Service Rules, 1988, the following provision has been incorporated:
"The inter se seniority of the appointee will be determined according to the merit in the result of the final examination of the State Forest Service Course (Diploma Course in Forestry) after successful completion of the training as per Rule 29 of the Tripura Forest Service Rules, 1988."
The petitioners have completed the State Forest Service Course within two years but when the final seniority list of Tripura Forest Service (Grade-II) was published by the Memorandum under No.F.30(1)-FA(P&T)/2000 dated 18.02.2011 showing the seniority position as on 01.01.2011, the respondents in the respective writ petitions were shown above the petitioners, even though they got less marks in the State Forest Service Course. The same 'irregularity' was repeated in the final seniority list published vide memorandum under No. F.30(1)-GA(P&T)/2000 dated 12.04.2013 showing the seniority position as on 15.01.2013.
The final seniority list of Tripura Forest Service officers (Grade-II) issued vide the memorandum No. F.30(1)-GA(P&T)/2000(P) dated 05.05.2015 showing the seniority position as on 01.01.2015 repeated the same 'vice' and according to the petitioners the said seniority list was published dehors Rule 29 of the Tripura Forest Service Rules, 1988. Moreover, the petitioners have claimed that they were completely unaware of the draft publication of the final seniority list dated 18.02.2011 and 12.04.2013. Hence, they could not raise any objection when the draft seniority list was published.
It appears that one of the petitioners, namely, Sri Suman Das, the petitioner in WP(C) 834 of 2019 had filed a writ petition earlier being WP(C)1224 of 2018 whereby Rule 29(1)(a) of the Tripura Forest Service (5th Amendment) Rules, 2005 was challenged as arbitrary. It was prayed in that writ petition to restore the un-amended Rule 29(1)(a) of the Tripura Forest Service Rules, 1988. In these writ petitions, the petitioners have not challenged the said Rule 29(1)(a) of the Tripura Forest Service (5th Amendment) Rules, 2005
For purpose of further reference, it is to be noted that in exercise of powers conferred by proviso to Article 309 of the Constitution of India, amendment has been caused to the Tripura Forest Service Rules, 1988 by Tripura Forest Service (5th Amendment) Rules, 2005 which came into force on 01.10.2005. By Rule 23 of the Tripura Forest Service (5th Amendment) Rules, 2005 Rule 29 has been substantively amended. Even, Rule 11 of the Principal Rules was amended by way of deletion. For purpose of reference, amended Rule 23 by which Rule 29 has been amended is extracted hereunder:
"23. Amendment of rule-29:
(i) In sub-rule(1) of rule 29 in the Principal rules, for the proviso (a) the following shall be substituted, namely-
"(a) Persons recruitment on the results of the competitive examination in any year shall be ranked inter se in the order of merit in which they are placed at the competitive examination on the result of which they are recruitment, those recruited on the basis of an earlier examination being ranked senior to those recruited on the basis of a later examination;"
(ii) Sub-rule (2) of rule -29 in the Principal Rules shall be deleted.
(iii) In sub-rule (3) of rule-29 in the Principal Rules, for the words "arising in a calendar year" shall be substituted by the following, namely- "filled in a recruitment year."
(iv) The provisos to sub-rule (3) of rule 29 in the Principal Rules shall be deleted.
(v) Sub-rule (4) of rule 29 in the Principal Rules shall be deleted."
For further appreciation, a table is formed to show the effect of Tripura Forest Service (5th Amendment) Rules, 2005 on Rule 11 and Rule 29 of the Principal Rules.
Rule 11 (Prior to Amendment)
Rule 11 (After Amendment)
Commission to forward a list in order of merit:- The Commission shall forward to the Government a list arranged in order of merit of the candidates who have qualified by such standards as the Commission may determine, and of the candidates belonging to the scheduled castes and the scheduled tribes, who though not qualified by that standard are declared by the Commission to be suitable for appointment to the Service for training in Diploma course in Forestry with due regard to the maintenance of efficiency of administration
Now Deleted
Rule 29 (prior to amendment)
Rule 29 (after amendment)
Seniority:- The Governor shall prepare a list of members of the Service arranged in order of seniority as determined in the manner specified below:-
(1) In the case of persons appointed on direct recruitment or by selection under rule 5, seniority in the Service shall be determined by the order in which appointments are made to the service:
Provided that:
(a) Persons recruited on the results of qualifying written examination in any year shall be ranked inter se in the order of merit in which they are placed according to merit in the result of the final examination of the State forest Service Course (Diploma Course in Forestry), those recruited on the basis of an earlier examination being ranked senior to those recruited on the basis of the later final examination of the State forest Service Course (Diploma Course in Forestry).
(b) The relative seniority inter se of the persons recruited by selection shall be determined on the basis of order in which their names are arranged in the list prepared under rule 15.
(2) Seniority of the members of the Service appointed at the initial constitution of the service in accordance with the provision of Part-VI of these rules, shall be determined by the Government in consultation with the Commission having due regard to the inter se seniority position in the post held by them previously under the government and the total length of service rendered by them in the said post.
Provided that in the case of persons appointed under the proviso to sub-rule (1) of rule 18 if two or more persons belonging to the same parent service of Department are thus appointment, they shall be ranked inter se in the order of their relative seniority in the parent service of Department as the case may be.
(3) The relative inter se seniority of the direct recruits and of promotees shall be determined according to the rotation of vacancies arising in a calendar year between direct recruits and promotees which shall be based on the quota of vacancies reserved for direct recruitments and promotion under rule 5.
Provided that in case the promotees and the direct recruits according to the rotation of vacancies are appointed in a same calendar year, the seniority between direct recruit and promotes shall be determined as per date of appointment to the service.
Provided further that in case both the direct recruit and promotees are appointed with effect from the same date, the seniority shall be determined n the basis of age as per date of birth.
(4) In a case not covered in these rules, the seniority of the Officer appointed to the Service shall be determined by the Government in consultation with the Commission.
Seniority:- The Governor shall prepare a list of members of the Service arranged in order of seniority as determined in the manner specified below:-
(1) In the case of persons appointed on direct recruitment or by selection under rule 5, seniority in the Service shall be determined by the order in which appointments are made to the service:
Provided that:
(a) Persons recruited on the results of the competitive examination in any year shall be ranked inter se in the order of merit in which they are placed at the competitive examination on the result of which they are recruited, those recruited on the basis of an earlier examination being ranked senior to those recruited on the basis of a later examination;
(b) The relative seniority inter se of the persons recruited by selection shall be determined on the basis of order in which their names are arranged in the list prepared under rule 15.
Sub-rule (2) deleted
(3) The relative inter se seniority of the direct recruits and of promotees shall be determined according to the rotation of vacancies filled in a recruitment year between direct recruits and promotees which shall be based on the quota of vacancies reserved for direct recruitments and promotion under rule 5.
Provisos deleted
Sub-rule (4) deleted
It is evident that in the pre-amended rule, inter se seniority used to be determined following the order of merit in the result of final examination of the State Forest Service Course (Diploma Course in Forestry) and those who used to be recruited on the basis of an earlier examination, used to be ranked senior to those recruited on the basis of the later final examination of the State Forest Service Course (Diploma Course in Forestry), but by way of amendment it has been completely changed w.e.f. 01.10.2005. The inter se seniority is thereafter determined on the basis of the order of merit in wich the direct recruits are placed in the competitive examination (Part-I) as conducted by TPSC and those who are recruited on the basis of an earlier examination is ranked senior to those recruited on the basis of the latter examination. The petitioners' challenge is completely based on the clause (as reproduced above) relating to determination of the seniority as provided in the offer of appointment (Annexure-3 to the writ petitions).
The respondents, by way of filing their separate reply have accused the petitioners of suppressing the material fact, as the appointing authority which issued the offer of appointment on 01.08.2009 had issued the corrigendum under No. F.2(1)-GA(P&T)/98(L) whereby the following correction, in the manner as stated under, has been made in the offer of appointment:
"CORRIGENDUM
Please read "The inter se seniority of the appointee will be determined as per provision of Rule 29 of Tripura Forest Service Rules, 1988" instead of "The inter se seniority of the appointee will be determined according to the merit in the result of the final examination of the State Forest Service Course (Diploma Course in Forestry) after successful completion of the training as per rule 29 of the Tripura Forest Service Rules, 1988 as appearing in Para-6 of the offer of appointment issued in respect of Tripura Forest Service Grade-II Probationers (against the direct recruitment quota) vide No. F.2(1)-GA(P&T)/98(L) dated 28th July, 2009."
The petitioners, however, have denied any knowledge about this corrigendum but it appears that one of the petitioners had challenged the amended Rule 29 of the Tripura Forest Service Rules, 1988. This corrigendum was issued within three days of issuance of the offer of appointment. The amending rules were duly circulated by the memorandum under No. F.10(2)-GA(P&T)/01 dated 26.04.2007, meaning before the advertisement No. 03 of 2008 dated 31.03.2008 as published by the TPSC for direct recruitment of Tripura Forest Service (Grade-II).
While disposing the said writ petition being WP(C)1224 of 2018, this Court had by implication turned down the challenge to Rule 29(1)(a) of the Tripura Forest Service (Amended) Rules, 2005. Hence, by implication the relief as sought was denied by this Court. However, the petitioner was afforded to file a fresh representation to be considered by the appropriate authority expeditiously and in accordance with the law and by any rate within a period of three months.
It appears that such consideration was made and the representation filed by the petitioner, namely, Suman Das, TFS,Gr-II, i.e. the writ petitioner in WP(C) 834 of 2019 was disposed of by the order No. F.41(4)-GA(P&T)/19 dated 29.04.2019 (Annexure-19 to the reply filed by the official respondents in WP(C)834 of 2019). Before disposal of the representation of the said petitioner, it has been reflected in the order dated 19.04.2019 that opportunity to make oral submission was afforded on 05.04.2019. in the said order, the petitioner raised the similar issues relating to the modification of the seniority list published by the memorandum dated 18.02.2011 by amending the Tripura Forest Service Rules, 1988 in order to restore the Tripura Forest Service Rules, 1988 (un-amended) so that the order of merit in the Tripura Forest Service Course (Diploma Course in Forestry) is made the basis of determination of seniority.
By the order dated 29.04.2019 the appropriate authority, i.e. the Joint Secretary to the Govt. of Tripura, GA(P&T) Department has observed that prior to appointment of the petitioners to the post of TFS, Grade-II in the year 2009, Rule 29 of Tripura Forest Service Rules, 1988 was amended in the year 2005 and the following provisions have been substituted by deleting the earlier provisions [see the table above]:
"Persons recruited on the results of competitive examination in any year, shall be ranked inter se, in order to merit in which they are placed at the competitive examination on the result of which they are recruited, those recruited on the basis of an earlier examination being ranked senior to those recruited on the basis of a later examination."
It has been also reflected in the said order that the corrigendum was issued on 01.08.2009 to the effect that inter se seniority of the appointee would be determined as per the amended Rule 29 of the Tripura Forest Service Rules, 1988. Thereafter, it has been observed as follows:
"In regard to non-receipt of the corrigendum by the petitioners it is to mention that corrigendum was issued on 1st August, 2009 and the notification of appointment was issued on 4th August, 2009, i.e. prior to the issue of the appointment notification corrigendum was issued. All the TFS Officers who had been appointed vide notification dated 4th August, 2009 received the copy of the corrigendum except the above petitioners is beyond belief."
It has been also stated that there is no impediment to publish the seniority list prior to completion of training. The final seniority list has been published only after publication of the draft seniority list inviting objections, if any, and the seniority list has been determined as per the said rule, keeping in view the merit list so prepared by the Tripura Public Service Commission (TPSC). The result of the State Forest Service Course is relevant for the confirmation of the petitioners' service, not for determining the seniority.
The private respondents have adopted the stand taken by the official respondents.
Mr. R Datta, learned counsel appearing for the petitioners has submitted that the said amended Rule is unreasonable. This Court is constrained to observe that such contention cannot be entertained by this Court for absence of any challenge to Rule 29 of the Tripura Forest Service Rules, 1988.
Mr. Datta, learned counsel has made an innovative submission that not Rule 29 of the Tripura Forest Service Rules, 1988 but Rule 22(11) would apply inasmuch as the petitioners, after their appointment were placed on probation. The said Rule 22(11) provides that the State Government shall prepare a list of probationers in order of merit which shall be determined on the basis of aggregate marks each one of them will secure in the final examination of the State Forest Service Course. The seniority inter se of the petitioners shall be determined on the basis of the written examination.
This Court is again constrained to observe that Rule 22(11) of the Tripura Forest Service Rules, 1988 has created a class within a class for a limited purpose, for the period of probation. That has nothing to do with the inter se seniority in the cadre, i.e. Tripura Forest Service (Grade-II).
Mr. Datta, learned counsel for the petitioner has referred a decision of the apex court in P. Sudhakar Rao & Ors. vs. U. Govinda Rao & Ors., reported in (2013) 8 SCC 693 which according to this Court is irrelevant because of the stark differences in the service rules.
Mr. Datta, learned counsel has placed his reliance on Sree Bhagawati Steel Rolling Mills Vs. Commissioner of Central Excise and Anr., reported in (2016) 3 SCC 643 in respect of validity of rules. Again this report is irrelevant as there is no challenge against the rule.
This Court has also heard Mr. D Bhattacharjee, learned GA as well as Mr. P Dutta, Mr. Tanmoy Debbbarma, Mr. Somik Deb, Mr. S. Lodh, Mr. SC Das, Mr. TD Majumdar and Ms P Dhar, learned counsel appearing for the respondents.
Mr. Lodh, learned counsel has, in contrast, relied on a decision of the apex court in Union of India & Ors vs. S.K. Saigal & Ors., reported in (2007) 4 SCC 556 where the apex court had responded to the core question poised for determination, as to whether the particular Rules governing the service conditions can be brushed aside without challenging those Rules or the mandate of the rules could be ignored in absence of any challenge and without striking them down. The answer that was given was that the Tribunal transgressed its jurisdiction by granting the relief to the respondents dehors the mandate of the rules. It is now well settled principle of law that no mandamus which would be contrary to the Act and Rules can ever be issued. Reference has been made by the apex court to State of UP Vs. Harish Chandra : (1996) 9 SCC 309 and Union of India Vs. Association for Democratic Reforms, (2002) 5 SCC 294.
Having appreciated the submission made by the learned counsel and the core of the grievance as portrayed in these writ petitions, this Court is of the view that the amended Rule 29 has taken its effect from 01.10.2005 in terms of Rule 1(2) of the said Rules which was published in the Tripura Gazette (Extra Ordinary Issue) dated 07.10.2005.
Thus, when the advertisement for the competitive examination for direct recruitment to the Tripura Forest Service (Grade-II) was published by the TPSC on 31.08.2008 (Annexure-1 to the writ petitions) the said amended Rule 29 of Tripura Forest Service Rules, 1988 was in force. Therefore, the determination of the seniority was to be made in accordance with the said amended rules. This is the unshakable conclusion flowing from the amended rule. No doubt, by a mistake committed by the official respondents in clause 6 of the offer of appointment dated 28.07.2009 (Annexure-3 to the writ petitions) the provisions relating to the un-amended rules, as stated, for determining the seniority was referred. But on 01.08.2009 itself by issuing a corrigendum, the said mistake was corrected and the appropriate rule was referred.
According to the respondents, the said corrigendum was served to every probationer including the petitioners. Whether that was served or not, will not change the course of law when the seniority is to be determined by a statutory rule. It is not the case of the petitioners that the private respondents in the respective writ petitions secured lesser position in the order of merit, of the competitive examination conducted by the TPSC but their case is entirely based on a wrong premise, i.e. on the basis of the result of the State Forest Service Course (Diploma in Forestry) which has been rendered irrelevant for determining the seniority, by way of amendment, carried out in the year 2005.
Apart that, no challenge has been thrown against the amended Rule 29 of the said Rules questioning its validity. Thus, the issue of validity cannot be examined by the Court suo motu.
Hence, there is no merit in the writ petitions and all the writ petitions are therefore, dismissed.
However, in the circumstances, there shall be no order as to costs.