Somen Chakraborty vs State Of Tripura And Ors

Heard Mr. Raju Datta, learned counsel appearing for the petitioner as well as Mr. D. Sharma, learned Addl. G.A. appearing for the respondents.

The facts which are not in dispute are that the petitioner was appointed as the Supervisor (ICDS) under the respondents on ad-hoc basis on 24.03.1991 in the regular scale of pay of Rs.4200-8650/-pre-revised and joined in the service on 28.03.1991. Since, the ad-hoc appointees were not regularized, the petitioner participated in the regular selection process for appointment to the post of Supervisor (ICDS) conducted by the Tripura Public Service Commission (TPSC, in short). The petitioner succeeded in the said selection process and in consequence thereof, the TPSC recommended the petitioner for appointment to the post of Supervisor (ICDS) (Group-C) on condition of probation for two years by the memorandum dated 02.05.2001. The petitioner has further that the probation has not been completed by a formal order. But it is well settled law that when the probation is only for two years and it has not been extended. It has to be deemed that the appointee has successfully completed the probation.

Having this fact noted, this court will proceed further to consider whether to grant or not the basic relief as sought in this writ petition. Subsequent to the regular appointment of the petitioner on recommendation of the TPSC, some of the persons who were appointed with the petitioner on ad-hoc basis by the memorandum dated 24.03.1991 were regularized by the memorandum dated 02.06.2017 [Annexure-7 to the writ petition] with effect from the date of their engagement on ad-hoc basis and they were allowed to get their consequential benefit of seniority and pension. The said memorandum, has been challenged in the writ petition being WP(C)No.1497 of 2014. The petitioner in this writ petition has urged to extend the similar benefit to him and not to treat his regular appointment restricted from the date of his joining to the post of the Supervisor (ICDS) (Group-C) in terms of the memorandum dated 02.05.2001. The other benefits which have been granted to those persons whose names are appearing in the memorandum dated 02.06.2017, is equally entitled to the petitioner. Thus, the petitioner has urged this court to give the regular scale of pay from the date of appointment i.e. 24.03.1991 with other financial benefits such as CAS and ACP on consideration of the length of service from 24.03.1991.

Mr. Raju Datta, learned counsel appearing for the petitioner has submitted that the similar benefit has been granted by this court in Mrinal Kanti Datta versus The State of Tripura and Others [judgment and order dated 19.03.2014 in WP(C)No.203 of 2009]. Having perused the said judgment, this court finds that the direction has been issued to give the retrospective effect for the benefits and seniority.

Mr. Datta, learned counsel has referred in order to nourish his submission a decision of the apex court in G.P. Doval and Others versus Chief Secretary, Govt. of U.P. reported in AIR 1984 SC 1527 where the apex court has observed as follows :

"15. Now if there was no binding rule of seniority it is well-settled that length of continuous officiation prescribes a valid principle of seniority. The question is from what date the service is to be reckoned? It was urged that any appointment of a stop-gap nature or pending the selection by Public Service Commission cannot be taken into account for reckoning seniority. In other words, it was urged that to be in the cadre and to enjoy place in the seniority list, the service rendered in a substantive capacity can alone be taken into consideration. We find it difficult to accept this bald and wide submission. Each case will depend upon its facts and circumstances. If a stop-gap appointment is made and the appointee appears before the Public Service Commission when the latter proceeds to select the candidates and is selected, we see no justification for ignoring his past service. At any rate, there is no justification for two persons selected in the same manner being differently treated. That becomes crystal clear from the place assigned in the seniority list to petitioner No. 1 in relation to respondent No. 7. In fact if once a person appointed in a stop-gap arrangement is confirmed in his post by proper selection, his past service has to be given credit and he has to be assigned seniority accordingly unless a rule to the contrary is made. That has not been done in the case of all the petitioners. The error is apparent in the case of petitioner 1 and respondent No.

These errors can be multiplied but we consider it unnecessary to do so. In fact a fair rule of seniority should ordinarily take into account the past service in the stop-gap arrangement is followed by confirmation. This view which we are taking is borne out by the decision of this Court in Baleshwar Dass and Ors. etc. v. State of U.P. and Ors.: AIR 1981 SC 41 wherein this Court observed that the principle which has received the sanction of this Court's pronouncement is that 'officiating service in a post for all practical purposes of seniority is as good as service on a regular basis. It may be permissible, within limits for government to ignore officiating service and count only regular service when claims of seniority come before it, provided the rules in that regard are clear and categorical and do not admit of any ambiguity and cruelly arbitrary cut-off of long years of service does not take place or there is functionally and qualitatively, substantial difference in the service rendered in the two types of posts.' It was said that service rules will have to be reasonable, fair and not grossly unjust if they are to survive the test of Articles 14 and 16. It is thus well-settled that where officiating appointment is followed by confirmation unless a contrary rule is shown, the service rendered as officiating appointment cannot be ignored for reckoning length of continuous officiation for determining the place in the seniority list. Admittedly, that has not been done and the seniority list is drawn up from the date on which the approval/selection was made by the Public Service Commission in respect of each member of the service, which is clearly violative of Art. 16, and any seniority list drawn up on this invalid basis must be quashed." [Emphasis added]

From the reading, it appears that the apex court has published the service jurisprudence observing that in some cases, the officiating appointment cannot be ignored for reckoning length of continuous officiation for determining of seniority and particularly, when the said officiating appointments get regularized and the post was found to have been existing from the date of officiating appointment.

Mr. D. Sharma, learned Addl. G.A. appearing for the respondents has submitted that the petitioner did not pursue his former writ petition and abandoned the writ petition half-away. Now, the petitioner cannot take resort to Article 14 of the Constitution to have the similar benefit extended to the persons who could not clear the selection process and later, on human consideration got regularized from the date of their ad-hoc appointments.

There is no dispute that the petitioner and the persons who have been regularized by the memorandum dated 02.06.2017 were engaged in the same process and the petitioner got regularized after clearing the selection process conducted by the TPSC in accordance with rules. In this circumstances, to take away the past services of the petitioner, wholly would not only be discriminatory but would be extremely unreasonable. This court cannot allow the respondents to indulge in such act. As such, it is decided that the petitioner shall get the past service from the date of his appointment vide the memorandum dated 24.03.1991 [Annexure-1 to the writ petition] and will get all other benefits on the basis of the length of service viz. benefits under CAS and ACP. But so far the seniority is concerned, the petitioner cannot as well be allowed to steal march over the persons who were regularly selected by TPSC in the year 2001. The financial benefits that would accrue shall be determined within a period of six months from the date when the petitioner shall furnish a copy of this order to the respondents.

With this observation and direction, this writ petition stands allowed to the extent as indicated above.

There shall be no other as to costs.

A copy of this order be supplied to Mr. D. Sharma, learned Addl. G.A appearing for the respondents.