Sumen Deb vs State Of Tripura And Ors

[1] Heard Ms. P. Dhar, learned counsel appearing for the petitioner as well as Mr. M. Debbarma, learned Addl. G.A. appearing for the respondents.

[2] By means of this writ petition, the petitioner who was appointed as the Junior Engineer (Diploma) Grade-II in the Rural Development Organization vide the memorandum dated 24.05.2003, [Annexure-3 to the writ petition] has urged this court to quash or set aside the decision contained in the letter No.F.1(38)/DM/S/ESTT/Part-II/07/1073 dated 14.08.2008, [Annexure-7 to the writ petition] and also to set aside the decision contained in the letter No.F.CE/RD/PER(JE)-SD/18-19(Part-II)/1003 dated 29.09.2018, [Annexure-24 to the writ petition] and for issuing direction to upgrade the petitioner as the Junior Engineer, Grade-I on completion of 4 years as per the condition in the recruitment advertisement dated 16.11.2001 by reading down the provisions made in the recruitment rules.

[3] There is no dispute that in the recruitment advertisement, as stated, it was provided that after completion of 4 (four) years of service, a Junior Engineer borne in the Grade-II be designated as the Junior Engineer Grade-I in accordance with the extant recruitment rules as published by the notification dated 24.02.1995, [Annexure-4 to the writ petition].

[4] The petitioner has admittedly completed 4 (four) years of service on 29.05.2007 and accordingly, he has claimed the benefits of up-gradation to the post of Junior Engineer, Grade-I in the Rural Development Department.

[5] It has also not been disputed that subsequently, the said service rules was amended by the RD Department (1st amendment) Recruitment Rules, 2005, [Annexure-8 to the writ petition] and that came into effect from 18.05.2005. By the said amendment the qualifying service required for such up-gradation was modified in the manner as under:

"5.(D) Diploma holder Junior Engineer, Grade-II after completion of 8 (Eight) years of qualifying service shall be designated as Junior Engineer, Grade-I and will get the scale of Junior Engineer, Grade-I (Their pay will be fixed as per prevailing norms)." [Emphasis added]

[6] It appears that the said amended provisions came into effect from 07.05.2005, much before the petitioner could complete 4 (four) years of service. According to the petitioner, his chance of moving to Grade-I has been eclipsed by the said repeal. But surprisingly the petitioner has not challenged the validity of the said rule.

[7] What is further surprising is that, the said recruitment rule was further amended. By the Junior Engineer, Grade-I and II of the R. D. Department (Second Amendment) Recruitment Rules, 2008 which had been notified under the notification No.F.1(70)-SE/RDC/2003-04/911 dated 21.06.2008, [Annexure-12 to the writ petition] the qualifying service was again brought to 4 (four) years for moving to the higher grade, i.e. Junior Engineer, Grade-I under the R. D. Department. For purpose of reference, the said amended provision is quoted hereunder:

"11. (a) By Promotion - For Junior Engineer Grade-I, 29% of the posts of Junior Engineer Grade-I shall be filled by Diploma holder engineers from Junior Engineer Grade-II with 4 (four) years regular service." [Emphasis added]

[8] That apart, the candidate must have passed the departmental examination conducted by the Government from time to time. Therefore, the earlier provision and the amended provision as carried out by the second amendment rules are distinguishable. It is not only to have 4 (four) years service in the entry grade, but to pass the departmental examination mandatorily.

[9] Ms. P. Dhar, learned counsel appearing for the petitioner has brought to the notice of this court the provision of Recruitment Rules, 2011 [Annexure-19] whereby the following provision for promotion has been made:

Promotion : From the post of the Diploma holder Junior Engineers of Grade-II with 4 (four) years regular service in the Grade.

This provision has undergone identical change by bringing down the qualifying service to 4 (four) years of service.

[10] It is also not in question that finally the petitioner has been promoted as Junior Engineer, Grade-I under the RD Department by the order No.F.1(32)-DM/W/ESTT/BLOCK/VOL-V/10/4208-47 dated 16.06.2011.

[11] Now, the relief is consolidated to providing retrospective benefit to the petitioner by reading down the provision of the recruitment rules whereby 8 (eight) years of service was made the requirement for moving to the next Grade i.e. Junior Engineer, Grade-I.

[12] Ms. P. Dhar, learned counsel has submitted that the TPSC had regretted to concur the recommendation made by the DPC held on 27.04.2011 inasmuch as the rule as was existing on the date of such recommendation was only for the Civil Engineers. It surfaces that in consequence of that observation and objection raised by the TPSC, the subsequent recruitment rules was enacted by the State Government by covering all branches of the engineers under the RD Department. Before coming to this court, as pointed by Ms. P. Dhar, learned counsel, a demand notice was served on the respondents on 02.07.2018, [Annexure-23 of the writ petition] for granting the reliefs as sought in this writ petition. But the respondents have on purported examination regretted the claim of the petitioner.

[13] Mr. M. Debbarma, learned Addl. G.A. has quite categorically submitted that the petitioner's claim is barred by the rules in force at the relevant point of time. When the petitioner was found suitable he was immediately given the benefit of promotion to the grade higher, i.e. Junior Engineer, Grade-I under R.D. Department.

[14] Mr. M. Debbarma, learned Addl. G.A. has quite categorically submitted that, the amended provisions of Recruitment Rules, 2005 required the qualifying service of 8 (eight) years and the said provision of the recruitment rules was never repealed with retrospective operation and as such, when the qualifying service was made 4 (four) years, the petitioner was not supposed to get any benefit with retrospective operation. The subsequent amendment by bringing down the qualifying service to 4 (four) years, is a beneficial step of the respondents.

[15] The petitioner has filed the rejoinder to contend that the frequent changes in the recruitment rules and finally bringing down the qualifying service has jeopardized the right of the petitioner. The respondents have made the subsequent amendment bringing down the qualifying service to 4 (four) years. It shows that for their whims the petitioner has suffered.

[16] Having appreciated the submission of the learned counsel for the parties, this court is of the view that, as the recruitment rules of 2005 has not been challenged, the action of the respondents cannot ex facie be said to be in violation of any rules nor can it be said that the amendment was beyond competence. But the contention as raised by the counsel for the petitioner is precisely that when the qualifying service was again made to 4 (four) years, a duty was cast upon the respondents to consider whether the benefit can be extended to the eligible persons with retrospective operation. If the retrospective operation was provided, nobody in the service would have been prejudiced, but it would have brought about promotion of the petitioner and he would have received some financial benefits. But that aspect has not been truly considered by the respondents. Even though, this court is not inclined to grant any relief as prayed by the petitioner, but it thinks it apposite to direct the respondents to consider whether the movements/promotion to the petitioner can be given retrospectively in terms of the Recruitment Rules, 2011 to the post of Junior Engineer, Grade-I under the R.D. Department, Government of Tripura, [Annexure-19] or not. The petitioner is permitted to file a fresh representation for consideration in order to get the promotion to the post of Junior Engineer, Grade I, retrospectively.

[17] In terms of the above, this writ petition stands disposed of.

There shall be no order as to costs.