Sumal Chandra Sutradhar vs State of Tripura and Others

J.N. Sarma, J.—This writ application has been filed by the Petitioner who is an employee in the Department challenging the validity of Item Nos.6 and 10 of the Rules for recruitment to the post of Fishery Development Officer/Superintendent of Fisheries etc. whereby the provision for filling up 50% of the posts by direct recruitment was made by the Government by a Notification dated 22.7.1989.

The law is by now settled that the Government has a right to make a rule providing direct recruitment to a post and that cannot be challenged by a person, because the rule provides only 50% by direct recruitment and the promotional quota of 50% has been left out intact by the Rule. So, the question of right of the Petitioner has been taken away cannot be accepted. After all the Petitioner does not nave a right to say that all posts must be filled up by promotion only. It is for the Govt. to decide and determine whether for the smooth management and development of the department there is necessity to make direct recruitment and/or by promotion. The Government is the best judge for this matter.

Now have a look at Clause-6 which provides for the age limit for direct recruitment upto 40 years. Relaxable by 5 years for ST/SC and Govt. Servant.

So, a person beyond the age of 40 years shall not be eligible for the direct recruitment. That cannot be said to be arbitrary, whimsical and/or fenciful. The Government is to introduce this age limit for the proper and smooth management of the department.

Class-10 is the method of recruitment and it provides that 50% shall be by direct recruitment failing by the transfer/deputation. That is also the law as (sic) by the Apex Court. If any authority is required for this proposition, one may have a look to the following decisions;

(i) The State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa and Others, wherein the Supreme court pointed out as follows:

The Government can alter the terms and conditions of its employees unilaterally and though in modern times consensus in matters relating to public services is often attempted to be achieved consent is not a pre-condition of the validity of rules of service, the contractual origin of the service notwithstanding.

(ii) AIR 1986 SC 737 Union of India and Ors. v. Arun Kumar Roy where the Supreme Court pointed out as follows:

The powers of the Government under Article 309 to make rules, to regulate the service conditions of its employees are very wide and unfettered. These powers can be exercised unilaterally without the consent of the employees concerned. It will, therefore, be idle to contend that in the case of employees under the Government, the terms of the contract of appointment should prevail over the rules governing their service conditions. The origin of Government Service often times is contractual. There is always an offer and acceptance, thus bringing it to being a completed contract between the Government and its employees. Once appointed, a Government servant acquires a status and thereafter his position is not once governed by the contract of appointment. Public law governing service conditions steps in to regulate the relationship between the employer and employee. His emoluments and other service conditions are thereafter regulated by the appropriate statutory authority empowered to do so. Such regulation is permissible in law unilaterally without reciprocal consent. This Court made this clear in two Judgments rendered by two Constitution Benches for this Court in Roshan Lal Tandon Vs. Union of India (UOI), and in The State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa and Others,

That being the position there is no merit in this writ application and the same is dismissed. The stay order, if any, passed earlier stands vacated.

I have heard Sri B. Das, Advocate for the Petitioner and Sri UB Saha, Govt. Advocate for the Respondents. I mice no order as to costs.

At this stage the Petitioner makes the grievance that he has not been promoted since the date of his joining in service in the year 1965. After all a person fins the service to have a career and he should not be rotten at the same post. That aspect of the matter shall be taken into consideration by the authority.