Allowed

Saumit Das v. the State of Tripura and Ors.

Tripura HC5 Sept 2017WP(C)/1290/2016

Case brief

AI extract

What is this about?

The petitioner sought to be granted benefits of prior judgments regarding counting ad-hoc service for regularization. The court held that the petitioner's uninterrupted ad-hoc service should be counted for all purposes. The writ petition was allowed to secure this benefit. Permission to file a fresh petition was granted over prior non-prosecution dismissal.

What did the court decide?

Period of service from 31.01.1996 till 13.07.2006 counted for all purposes; writ petition allowed and disposed.

Saumit Das Vs the State of Tripura and Ors. — Pension and Retirement Benefits | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA AGARTALA

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W. P.(C) No.1290 of 2016

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Sri Saumit Das,

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son of late Narayan Chandra Das, Assistant Engineer, Public Works Department, resident of Block No.8, Type-IV, Quarter No.22, Malancha Nibash, Government Quarters Complex, P.O. Kunjaban, P.S. East Agartala, West Tripura

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…………Petitioner

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– Vs –

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1. The State of Tripura,

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represented by the Principal Secretary to the Government of Tripura, Public Works Department, New Secretariat, P.O. New Capital Complex, Agartala, West Tripura

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2. The Secretary to the Government of Tripura, General Administration (P&T) Department, New Secretariat, P.O. New Capital Complex, Agartala, West Tripura

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3. The Principal Secretary to the Government of Tripura, Finance Department, New Secretariat, P.O. New Capital Complex, Agartala, West Tripura

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…………Respondents

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B E F O R E THE HON’BLE MR. JUSTICE S. TALAPATRA

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For the petitioner : Mr. D. K. Biswas, Advocate For the respondents : Mr. B. C. Das, Advocate General Mr. D. C. Nath, Advocate

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Date of hearing and delivery : 05.09.2017 of judgment and order

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Whether fit for reporting : NO

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Judgment and Order (Oral)

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Heard Mr. D. K. Biswas, learned counsel appearing for

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the petitioner as well as Mr. B. C. Das, learned Advocate General assisted by Mr. D. C. Nath, learned counsel appearing for the respondents.

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W. P.(C) No.1290 of 2016

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Page 1 of 6

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02. By means of this writ petition, the petitioner has urged this court to extend the benefits in terms of the judgment and order dated 10.08.2015 delivered in W.A. No.67 of 2014 (The State of Tripura and Others vs. Tribal Engineers’ Society, Tripura and Others) .

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03. In State of Tripura and Others vs. Tribal Engineers’ Society, Tripura and Others , it has been observed by this court as under:

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“[3] In our opinion, this dispute is squarely covered by the judgment of the Apex Court in the Direct Recruit Class-II Engineering Officers' Association and others vs. State of Maharashtra and others, reported in AIR 1990 SC 1607. In that case, the Apex Court dealt with the issue as to whether ad-hoc service rendered by an employee is to be counted while considering his service for all intents and purposes and if so, under what circumstances.

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[4] We may refer to sub paras-A & B of Para-44 of the judgment which read as follows:

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“(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.

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(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.”

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[5] The case of the State is that the writ petitioners were appointed dehors the rules. According to the State, the promotions were made in an ad-hoc fashion without following the rules. Even this situation is covered by sub para-B of Para-44 of the said decision of the Apex Court. According to the learned Advocate General, the case of the State is squarely covered by sub para-A of the said decision especially the corollary thereto since the promotion of the writ W.A No.67 of

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W. P.(C) No.1290 of 2016

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Page 2 of 6

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2014 Page 6 of 7 [6] petitioners on ad-hoc basis was made dehors the rules. Sub para-A of Para-44 clearly indicates that ad-hoc service is normally not to be counted for any purpose, especially when it is made against the rules. The corollary relied upon by the learned Advocate General only clarifies this issue by saying that where the initial appointment is only adhoc and the said appointment is not in accordance with the rules and further that the said appointment is a stop gap arrangement, the officiation in such post cannot be taken into account for considering his seniority.

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[6] In our view, the present case does not fall under sub para-A for the following reasons:

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(i) The ad-hoc appointment though not made according to the rules continued uninterruptedly for 14 years till the services of the writ petitioners, the respondents herein, were regularized in the year 2006.

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(ii) This was not a stop gap arrangement because there can be no stop gap arrangement which continues for 14 long years.

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(iii) The explanation given by the State that it could not make regular appointment due to the pendency of the writ petition is a fallacious argument since the writ petition was filed in the year 2004 and there is not a word by the State as to what prevented it from making regular appointment from 1992 till 2004.

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Nothing has been placed on the file of this case to show that there was any stay order granted by any Court, whereby the State was prevented from making any regular appointment.

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[7] We are clearly of the view that this case is covered by sub para-B of Para-44 of the aforesaid decision of the Apex Court which clearly lays down that even if the initial appointment is not made in accordance with the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. Therefore, the period of service rendered by the writ petitioners from 1992 till the regularization in 2006 will be counted for all intentional purposes.

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[Emphasis added]

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04. According to the petitioner, he is similarly circumstanced like the respondents No.2 to 30 in the State of Tripura and Ors. vs. Tribal Engineers’ Society, Tripura .

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W. P.(C) No.1290 of 2016

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Page 3 of 6

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05. The facts are mostly admitted and the respondents have not disputed any fact as averred in the writ petition. But they have contended that the judgment in State of Tripura & Ors. vs.

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Tribal Engineers’ Society, Tripura is in personem, not in rem and as such it will not be automatically applicable to the petitioner. Further, they have rested their objection as to the maintainability of the writ petition by stating that on the similar subject matter, the petitioner and 20 others had filed a writ petition being W.P.(C) No.385 of 2006 in the Gauhati High Court which had territorial jurisdiction of the subject matter at that time, urging to regularise them from the date of their ad-hoc appointment by way of modification of the order dated 14.07.2006 whereby the petitioner along with others were regularised prospectively. The said writ petition was dismissed for non-prosecution by the order dated 19.02.2014. Subsequently, the petition which was filed for restoration with condonation of delay was again dismissed by the order dated 09.03.2016 as the condonaton application was held to be devoid of any merit. Thus, the relief as claimed is barred and those cannot be re-agitated.

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06. The petitioner was appointed initially on ad-hoc basis for 6 months and the petitioners were allowed to continue till they are regularised by the order dated 14.07.2006 under No.F.6(35)PWD(E)/92 dated 14.07.2006 along with 51 other ad-hoc diploma holder Assistant Engineers with prospective effect.

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07. According to Mr. D. K. Biswas, learned counsel for the petitioner, the judgment and order dated 10.08.2015 [State of

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W. P.(C) No.1290 of 2016

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Page 4 of 6

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Tripura vs. Tribal Engineers’ Society, Tripura] squarely covers

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this case but for the observation made in the fag end of the judgment that the benefit of the judgment would be limited to the petitioners of that case only, the petitioner has filed this case. Mr. Biswas, learned counsel while addressing the issue of res judicata has relied on a decision of this court in Rajib Majumder vs. The

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State of Tripura and Ors., Judgment and order dated 23.11.2016 in W.P.(C) No.223 of 2016 where this court has observed as under:

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“6. Having regard to all these aspects, this court is of the view that while exercising the jurisdiction under Article 226 of the Constitution of India, the main plank that has to be considered by this court is to serve the substantive ends of justice. The technicalities all the time may not restrain the stream of justice. It has been now well settled that when there was no decision in the writ petition, mere dismissal for non prosecution cannot stand in the way to grant the appropriate leave, if considered appropriate, if the petitioner had approached the court by filing a fresh writ petition. However, in the writ petition, the petitioner shall fairly disclose all the material facts so that the court can examine those material for purpose of leave.”

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08. Mr. B. C. Das, learned Advocate General appearing for the respondents has fairly submitted that in view of the decision (Rajib Majumder vs. The State of Tripura and Ors.) the question of maintainability as raised by the respondents has fallen through and this writ petition may be allowed as otherwise by the judgment and order dated 10.08.2015 ( The State of Tripura vs.

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Tribal Engineers’ Society, Tripura ) this writ petition is squarely covered.

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09. Having due consideration of the submission advanced by the learned counsel appearing for the parties, this court is of the

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W. P.(C) No.1290 of 2016

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Page 5 of 6

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view that the case of the petitioner is squarely covered by subpara-B of para-44 of Direct Recruit Class-II Engineering Officers’ Association and others vs State of Maharashtra reported in AIR 1990 SC 1607 as there had been selection for the ad-hoc appointment and the petitioner had continued in that capacity till he was regularised. Hence, the period of service rendered by the petitioner from 31.01.1996 till 13.07.2006, the previous day of the day when the office order dated 14.07.2006 (Annexure-1 to the writ petition) was issued be added to the service of the petitioner and that period shall be counted for all purposes.

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In terms of the above, the writ petition stands allowed and disposed of. No order as to costs.

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JUDGE

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W. P.(C) No.1290 of 2016

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Saumit Das v. the State of Tripura and Ors.

Case brief

What is this about?

What did the court decide?

Saumit Das v. the State of Tripura and Ors.

Case brief

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What did the court decide?

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