Tripura High Court
Tarendra Reang vs The State Of Tripura on 6 January, 2021
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HIGH COURT OF TRIPURA
AGARTALA
WP(C) No.234/2020,
WP(C) No.236/2020,
WP(C) No.558/2020,
WP(C) No.450/2020,
WP(C) No.780/2020.
A) WP(C) No.234/2020.
1. Tarendra Reang, S/o Sri Ramani Reang,
R/o Vill. Sarbadhan Reang Para, Baikhora,
P.O - Betaga, P.S - Baikhora, District - South Tripura,
Pin - 799 144.
2. Smt. Tanima Chakraborty, W/o Sri Dipankar Chowdhury,
R/o Vill. A. D. Nagar, Road No.5, P.O. A. D. Nagar,
P.S. A D Nagar, District - West Tripura,
Pin -799 003.
3. Sri Abhijit Das, S/o Sri Baidhya Nath Das,
R/o Vill. Madhya Pratapgarh, P.O. - East Pratapgarh,
P.S. - East Agartala, District - West Tripura, Pin - 799 004.
............... Petitioner(s).
Vs.
1. The State of Tripura,
represented by the Commissioner & Secretary,
Education Department, Government of Tripura,
having his office at Secretariat Building, P.O. Kunjaban, P.S. New
Capital Complex, District - West Tripura, Pin - 799 006.
2. The Commissioner & Secretary,
Education Department, Government of Tripura,
having his office at Secretariat Building, P.O. Kunjaban, P.S. New
Capital Complex, District - West Tripura, Pin - 799 006.
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3. The Commissioner & Secretary,
Finance Department, Government of Tripura,
having his office at Secretariat Building, P.O. Kunjaban, P.S. New
Capital Complex, District - West Tripura, Pin - 799 006.
4. The Director of School Education, Education Department,
Government of Tripura, having his office at Shiksha Bhawan, Office
Lane, P.O. Agartala, P.S. West Agartala, District - West Tripura.
............... Respondent(s).
B) WP(C) No.236/2020.
Smt. Shaswati Deb(Das), Wife of Sri Dilip Das,
C/o Sri Balai Chandra Das, resident of North Badharghat (Near Swami
Vivekananda Club), P.O & P.S - Arundhutinagar, Agartala, District -
West Tripura, Pin - 799 003.
............... Petitioner(s).
Vs.
1. The State of Tripura,
represented by the Commissioner & Secretary,
Education Department, Government of Tripura,
having his office at Secretariat Building, P.O. Kunjaban, P.S. New
Capital Complex, District - West Tripura, Pin - 799 006.
2. The Commissioner & Secretary,
Education Department, Government of Tripura,
having his office at Secretariat Building, P.O. Kunjaban, P.S. New
Capital Complex, District - West Tripura, Pin - 799 006.
3. The Commissioner & Secretary,
Finance Department, Government of Tripura,
having his office at Secretariat Building, P.O. Kunjaban, P.S. New
Capital Complex, District - West Tripura, Pin - 799 006.
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4. The Director of School Education, Education Department,
Government of Tripura, having his office at Shiksha Bhawan, Office
Lane, P.O. Agartala, P.S. West Agartala, District - West Tripura.
............... Respondent(s).
C) WP(C) No.558/2020.
Sri Asim Goswami, S/o Late Haripada Goswami,
r/o Vill. Brajendranagar, P.O. Brajendranagar, P.S. - Kadamtala,
District - North Tripura.
............... Petitioner(s).
Vs.
1. The State of Tripura,
represented by the Principal Secretary,
School Education Department, Government of Tripura,
P.O. Kunjaban, P.S. New Capital Complex,
District - West Tripura.
2. The Director of Elementary Education, School Education
Department, Government of Tripura, P.O. Agartala, P.S. West
Agartala, District - West Tripura.
3. Teacher Recruitment Board (Tripura), represented by its Member
Secretary, Govt. of Tripura, P.O : Agartala, P.S. West Agartala,
District - West Tripura.
4. The Principal Secretary, Department of Finance, Government of
Tripura, P.O. Kunjaban, P.S. New Capital Complex, District - West
Tripura.
............... Respondent(s).
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D) WP(C) No.450/2020.
1. Sri Santosh Das, S/o Lt. Sunil Das, R/o. Vill. Bhatkhawri,
P.O & P.S - Salema, Kamalpur, Dhalai, Tripura.
2. Sri Goutam Das, S/o Lt. Gopal Ch. Das, R/o Vill. Basantanagar,
P.O & P.S. - Kakraban, District - Gomati Tripura, Pin - 799 105.
3. Sri Sankar Das, S/o Sri Satyendra Kumar Das, R/o. Village -
Ghilatali(Police Para), P.O. Ghilatali Bazar, P.S. - Kalyanpur,
District - Khowai Tripura, Pin - 799 203.
4. Sri Bhushan Bhowmik, S/o Lt. Man Mohan Bhowmik, R/o Vill.
Mirza, P.O. Upendranagar, P.S - Kakraban, Udaipur, Gomati
Tripura.
............... Petitioner(s).
Vs.
1. The State of Tripura,
represented by the Secretary,
Education(School) Department, Government of Tripura,
New Secretariat Building, New Capital Complex, Kunjaban,
Agartala, West Tripura, Pin - 799 010.
2. The Director, Secondary Education, Govt. of Tripura, Office Lane,
Agartala, West Tripura.
3. The Director, Elementary Education, Govt. of Tripura, Agartala,
West Tripura.
4. The Director of School Education, Government of Tripura, Agartala,
West Tripura.
5. The Secretary,
Department of Finance, Government of Tripura,
New Secretariat Building, New Capital Complex, Kunjaban,
Agartala, West Tripura, Pin - 799 010.
............... Respondent(s).
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E) WP(C) No.780/2020.
Sri Ratan Debnath, S/o Brajendra Kumar Debnath, resident of Village
& P.O - Takmacherra, P.S - Santirbazar, District - South Tripura,
Pin - 799 125.
............... Petitioner(s).
Vs.
1. The State of Tripura,
represented by the Commissioner & Secretary,
Education Department, Government of Tripura,
having his office at Secretariat Building, P.O. Kunjaban, P.S. New
Capital Complex, District - West Tripura, Pin - 799 006.
2. The Commissioner & Secretary,
Finance Department, Government of Tripura,
having his office at Secretariat Building, P.O. Kunjaban, P.S. New
Capital Complex, District - West Tripura, Pin - 799 006.
4. The Director of School Education, Education Department,
Government of Tripura, having his office at Shiksha Bhawan, Office
Lane, P.O. Agartala, P.S. West Agartala, District - West Tripura.
............... Respondent(s).
_B_E_ F_O_R_E_
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
For Petitioner(s) : Mr. P Roy Barman Advocate,
Mr. Somik Deb, Advocate,
Mr. Arijit Bhowmik, Advocate,
Mr. Samarjit Bhattacharjee, Advocate,
Mr. Kawsik Nath, Advocate,
Mr. S Dey, Advocate.
For Respondent(s) : Mr. Debalaya Bhattacharjee, Govt. Adv
Date of hearing & Judgment : 6th January, 2021.
Whether fit for reporting : Yes.
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J U D G M E N T (ORAL)
All these petitions involve similar questions. They have been
heard together and would be disposed of by this common judgment.
[2] At the outset we may record individual facts :
(A) In WP(C) No.234/2020 petitioner No.1 was appointed as
Wireless Operator in Government service on 16th October, 2009. Upon
completion of training he was granted regular pay scale w.e.f 1st
November, 2010. Petitioner No.2 was appointed as a Lower Division Clerk
on 5th January, 2011 in fixed salary. He was granted regular scale on 20th
January, 2016. Petitioner No.3 joined as Panchayat Secretary on fixed
salary on 13th December, 2008 and was granted regular pay scale on 2 nd
August, 2014.
All the petitioners obtained no objection from their employers
and applied for post of Teachers in Government schools. Petitioner No.1
wanted to be Post Graduate Teacher and Petitioners No.2 and 3 as
Graduate Teachers. Such no objections were granted in the years 2017 and
2018. All the petitioners were selected through regular selection process
upon which petitioner No.1 tendered his technical resignation which was
accepted by the department and he joined his new post shortly thereafter
pursuant to the offer of appointment dated 17th May, 2017. The Petitioner
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No.2 was offered appointment as a Graduate Teacher on 29th June, 2018.
She tendered her technical resignation which was accepted on 29th
November, 2018. She joined her new post shortly thereafter. Petitioner
No.3 was offered appointment as a Graduate Teacher on 29th June, 2018.
He tendered technical resignation which was accepted on 30th October,
2018 and joined the post soon thereafter.
All the petitioners were placed in fixed salary regime upon their
joining new posts of Graduate and Post Graduate Teachers. They have,
therefore, filed these petitions and prayed for a direction for granting them
benefit of past service for all purposes including pay, allowances, leave
encashment, pension etc.
(B) In WP(C) No.236/2020, the petitioner was appointed as an
Inspector on 6th July, 2013 on regular pay scale. She was selected as a
Graduate Teacher for which she had applied with no objection from the
department. She tendered her technical resignation which was accepted on
6th December, 2017 and joined the post soon thereafter. In the new
placement she has been placed in fixed salary ignoring her past
Government service.
(C) In WP(C) No.558/2020, the sole petitioner was appointed as an
Assistant Teacher (Science) on 29th March, 2012 by the Government after
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carrying out regular selection process for which advertisement was issued
on 25th August, 2010. His initial appointment was on fixed pay basis.
According to him, after completion of 5 years service, as per Government
policy he ought to have been brought out to regular scale. This has not
been done so far. The petitioner's first prayer is, therefore, for grant of
regular pay scale w.e.f. 2nd July, 2017 on the post of Assistant Teacher.
Pursuant to advertisement dated 2nd March, 2019 for recruitment of Under
Graduate Teachers, the petitioner applied. He was selected. He tendered
his technical resignation from his erstwhile post which was accepted by the
department on 17th March, 2020 and he joined the service as Under
Graduate Teacher soon thereafter. His second prayer, therefore, is that his
past service as an Assistant Teacher(Science) should be preserved for all
purposes.
(D) In WP(C) No.450/2020 all the petitioners were selected and
appointed as Assistant Teachers(Science) on or around 2nd July, 2012
pursuant to the advertisement issued by the State Government in the year
2010 for such posts. In the year 2018, they applied for the post of Graduate
Teachers with no objection from the department. They were selected and
offered appointments which they accepted after tendering technical
resignations in second half of the year 2018. They point out that upon
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completion of 5 years of service they had not been brought over to regular
scale as Assistant Science Teachers and thereafter, they have once again
been placed in fixed salary regime upon their fresh appointments as
Graduate Teachers.
(E) In WP(C) No.780/2020 petitioner was appointed as Assistant
Teacher(Science) on 29th March, 2012 pursuant to the selection process
initiated by the State Government in the year 2010. His case is that he
should have been granted regular scale after completion of 5 years which
was not granted to him. In the year 2017, the petitioner obtained no
objection from the department and applied for the post of Post Graduate
Teacher. He was selected and offered appointment. He tendered technical
resignation which was accepted on 18th July, 2017 upon which he joined as
a Post Graduate Teacher. His grievance is that in the fresh appointment he
has been placed under fixed pay ignoring his past service as Assistant
Science Teacher.
Though this petition is fresh, since facts are identical to other
petitions being considered we have clubbed the same for final disposal
along with connected petitions.
[3] Before we address the central controversy, a peripheral issue
arising in some of the petitions may first be disposed of. We have noticed
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that there are some cases in which Teachers who were appointed in the
year 2012 in fixed salary basis were not granted regular pay scale even
after completion of 5 years of service. The stand of the Government was
that these Science Teachers were not engaged against regular vacancies
and that, therefore, they cannot get the benefit of the Government
notifications providing for grant of regular pay scale to Group C and D
employees after completion of 5 years of service in fixed salary. This issue
was decided by this Court in case of Snehangshu Das and others Vs.
State of Tripura and Ors. in WP(C) No.89/2020 and connected petitions
in a judgment dated 18th December, 2020. Following observations may be
noted :
"24. There is yet another angle to the whole issue. All the
petitioners are discharging duties as teachers in primary and
secondary divisions in Government schools where the very
foundation of the students who would form the future generation
of the society is laid. For over 8 years the Government refuses to
remunerate these teachers at fair wages which are paid to other
similarly situated teachers with same qualifications and nature of
work. If the only argument of the Government is that they cannot
stake their claims over regular pay scales because there are no
sanctioned posts, there has to be something seriously wrong with
the Government policy formation. As many as 1450 school
teachers cannot be kept against unsanctioned posts. The fact that
the work exists for them and precisely that is why they have been
engaged is beyond dispute. When the work is of such perennial
nature and the work is of such importance, can the Government
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argue that because the posts are not sanctioned the petitioners
will not get fair wages. Obviously the answer has to be in the
negative. Continuing the petitioners on fixed salary in perpetuity
and at the same time expecting full dedication, efficiency and
sincerity in their discharge of the duties would be a dichotomy.
25. In the result, all the petitions are allowed by providing that
the petitioners will be brought over to regular pay scale upon
completion of 5 years of service from initial engagement. This
shall be with all consequential benefits including past arrears of
wages and pay fixations. All the benefits of Government
notifications issued from time to time concerning their past
services will also be available to the petitioners. Entire exercise
shall be completed within a period of six months from today"
In all cases where Assistant Science Teachers after their
engagements in the year 2012 on fixed salary basis have not been granted
regular scale upon completion of 5 years of service, would receive the
benefit as held in case of Snehangshu Das(supra). They would have to be
brought over to regular scale upon completion of 5 years of service with all
consequential benefits.
[4] This brings us to the central controversy which is common in all
cases and it is this. The petitioners either as Teachers or holding non-
teaching posts in the State of Tripura, applied for the posts of Teachers be
it Under Graduate, Graduate or Post Graduate, they were selected and
appointed on such posts. They had participated in the selection process
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with no objection from the department in which they were employed. They
tendered resignations from their previous posts which were titled as
„technical resignations‟. Such technical resignations were accepted, they
were relieved from their past service which enabled them to join as
Teachers in Government service. By virtue of Government action and in
some cases, by virtue of declaration of law, in case of Snehangshu
Das(supra) and the consequential directions issued in this judgment in the
earlier portion, all the petitioners would enjoy pay and allowances in
regular pay scales attached to their respective posts. In their new
appointments now they are once again placed in fixed salary regime which
these petitioners strongly oppose.
[5] We will certainly decide the question of eligibility of these
petitioners to retain their past service for the service benefits upon their
fresh appointments independently on the basis of rules, regulations and
other literature placed for my consideration. However, at this stage, it may
be recorded that the prime objection raised by the Government in the reply
affidavits filed in these petitions is that all these petitioners applied in
response to advertisements issued by the Government which clearly
specified that initial appointment for 5 years would be on fixed salary. The
petitioners accepted their appointments on such terms and conditions.
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They, therefore, now cannot turn around and claim any further benefits. In
short, virtually the sole ground pressed in service by the Government to
oppose the prayers of the petitioners is of estoppel.
[6] The formula of engaging employees in Group C and D posts for
initial period of 5 years on fixed salary is a device adopted by the State
Government, principally by way of cost cutting exercise. From time to
time, resolutions have been passed under which by keeping the regular
posts in abeyance for a period of 5 years temporary engagements are made
on fixed salary basis. This is, however, always preceded by regular
selection process and is done against regular posts which are vacant. These
resolutions also provide that upon completion of continuous satisfactory 5
years of service, the person so engaged on fixed salary basis will be
brought to regular scales of pay. Benefit of the past service is also
recognised for the purpose of pension and other benefits. In short thus, the
formula of engaging Group C and D staff on fixed salary basis is merely a
device to enable the Government to reduce its salary burden for a
temporary period. All these petitioners thus having been initially engaged
in fixed salary regime, were brought over to regular scale or ought to have
been brought over to regular scale as held by this Court in case of
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Snehangshu Das(supra) and which declaration has already been made in
this judgment earlier.
[7] In this context, the question would be can these petitioners now
be asked to be placed at the very bottom in their new assignments by
asking them to work for 5 years on fixed salary before they would be
brought over to regular pay scales and in the process, their past service of
more than 5 years would be wiped out for all purposes? This question has
to be examined from the context of relevant rules and regulations.
FR.22(1) provides for regulation of the pay of a Government servant
appointed to a post on time scale of pay and envisages different situations
where a Government servant holding one post on substantive or temporary
basis is promoted or appointed in a substantive, temporary or officiating
capacity on some other post. It primarily envisages protection of past pay
on new engagement. It is not necessary to take detail stock of this rule,
except for referring to a judgment of this Court in case of Sri Khokan
Debnath Vs. State of Tripura and Ors. reported in (2018) 1 TLR 175 in
which the learned Single Judge held and observed that FR.22(1)(a)(1) is
not confined to regulation of pay scale of a Government servant on
promotion. The same would apply also in case of his appointment on a
post different from one he was previously holding in the Government.
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[8] Government of India had issued certain instructions under FR.22,
one such instruction dated 17th June, 1965 reads as under :
"(9) Condonation of resignation for purposes of fixation of
pay- The question whether the benefit of past service for purposes
of fixation of pay can be given to a Government servant who
resigns his post before taking up appointment in the new post in
the same or another Department, has been under the
consideration of the Government of India. Normally, the benefit of
past service is given only in those cases where such service has
not been terminated by resignation/dismissal. The President is,
however, pleased to decide that in cases where Government
servants apply for posts in the same or other Departments
through proper channel and on selection, they are asked to resign
the previous posts for administrative reasons, the benefit of past
service may, if otherwise admissible under rules, be given for
purposes for fixation of pay in the new post treating the
resignation as a „technical formality‟. The pay in such cases may
be fixed under FR.27."
[9] Under instructions dated 22nd January, 1993 it was further
clarified as under :
" * * *
A question has now been raised as to whether the above
benefit is admissible to Government servants who applied for
posts in the same or other Departments before joining
Government service and on that account the application was not
routed through proper channel. The matter has been examined
and it is now decided that the benefit of past service subject to the
same conditions as incorporated in O.M., dated 17-6-1965 above,
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may be allowed in such cases also, subject to the fulfilment of the
following conditions :-
(i) the Government servant at the time of joining should
intimate the details of such application immediately on
their joining;
(ii) the Government servant at the time of resignation
should specifically make a request, indicating the dates
that he is resigning to take up another appointment under
the Government/Government Organization for which he
applied before joining the Government service and that his
resignation may be treated as „technical‟ resignation;
(iii) the authority accepting the resignation should satisfy
itself that had the employee been in service on the date of
application for the post mentioned by the employee, his
application would have been forwarded through proper
channel."
[10] As per the said instructions dated 17th June, 1965 thus,
Government of India had taken a conscious decision that a Government
servant who resigns from his post in the same or other departments through
proper channel and joins another post on selection after resigning from his
previous post, the benefit of past service, if otherwise admissible under the
rules, will be given for the purpose of fixation of pay in the new post
"treating the resignation as a technical formality". It is from these
instructions perhaps that the term "technical resignation" has gained
currency. Likewise under the instructions dated 22nd January, 1993 even in
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a case where a Government servant takes up another appointment in
another department but for which his application for selection was not
routed through proper channel, the past service would be protected subject
to certain conditions. Both these instructions thus clearly manifest the
intention of the Government of India not to deter or discourage
interdepartmental migration of employees.
[11] As pointed out by the counsel for the petitioners, a reference also
must be made to the Central Civil Services (Pension) Rules, 1972
["CCS(Pension) Rules" for short] which have been adopted by the State
of Tripura under a notification dated 8th August, 1978. Rule 26 of
CCS(Pension) Rules pertains to forfeiture of service on resignation.
Relevant portion of this rule reads as under :
"26(1) Resignation from a service or a post, unless it is allowed
to be withdrawn in the public interest by the appointing authority,
entails forfeiture of past service.
(2) A resignation shall not entail forfeiture of past service if it
has been submitted to take up, with proper permission, another
appointment, whether temporary or permanent, under the
Government where service qualifies."
[12] As is well known, simple resignation leads to forfeiture of past
service. The Courts have clearly distinguished between resignation and
voluntary retirement. However, as specified in sub-rule (2) of Rule 26 of
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CCS(Pension) Rules, a resignation shall not entail forfeiture of past service
if it is submitted to take up another appointment under the Government
with proper permission. As noted, the term technical resignation is not
reflected in the rules, however, by virtue of Government of India's
instructions, noted above and in the context of sub-rule (2) of Rule 26 of
CCS(Pension) Rules the same has gained a certain well known
connotation. It conveys a situation where a Government servant takes up
another post under the Government for which his parent department has
shown willingness and to join the new post, he has to resign from his past
service.
[13] My attention was drawn to a memorandum dated 28 th November
2018 issued by the Government of Tripura, Finance Department, in which
it has been clarified that all employees who have entered into regular posts
under the State Government Departments or in service of an Autonomous
Bodies set up by the State Government prior to 1st July, 2018 and who
were governed by the old pension scheme will continue to be governed by
the old pension scheme, if such employees submit technical resignation on
or after 1st July, 2018 to take up new appointment in another department
under the Government of Tripura in which the old scheme already existed
for the employees who entered the service prior to 1st July, 1978.
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[14] Under this memorandum, even upon a Government servant
joining a new post in the Government or autonomous organization set up
by the Government his past service for the purpose of being governed by
the old pension scheme will be granted, provided his join in the new
service after tendering technical resignation. Thus, even the Government of
Tripura recognises this concept of the past service being protected when an
employee tenders technical resignation and joins new post under the
Government. Even otherwise, this is an implication of sub-rule (2) of Rule
26 of CCS(Pension) Rules which have been adopted by the State
Government.
[15] From the above discussion it can be seen that interdepartmental
migration of the employees is not discouraged, be it the Government of
India or the State Government. Specifically Rule 26(2) of CCS(Pension)
Rules protects the past service of an employee of the Government even
after his technical resignation and joining new post. Though this is limited
for the purpose of pensionary benefits of an employee, it is impossible to
protect the pension without protecting his pay.
[16] The incongruity of the situation that may be brought about if the
Government's stand is accepted would be that full time Government
servants who have after rendering service for 5 years on fixed salary basis
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are brought over to regular scale, once again would be placed at the bottom
of salary structure and would be asked to render service for 5 years on
fixed salary which is a meagre 65 or 75% of entry scale of the equivalent
post without benefit of any other allowances. By protecting their past
service for the purpose of pay and allowances even the Government
purpose of cost cutting would not be frustrated because these employees
would be vacating their regular posts which when filled up the
Government will be offered on fixed salary basis. Thus this
interdepartmental migration would only bring about change of the head
from which the petitioners would be drawing their salaries and there would
be no additional outflow from the Government exchequer.
[17] The objection of the Government that the petitioners accepted
their appointments with full knowledge and, therefore, they are estopped
from raising their grievances is possible of the summery disposal. Neither
the recruitment rules nor the advertisement nor the offer of appointment
can override the service rules, regulations and statutory provisions. Even if
the advertisement provided that an appointee shall be placed under fixed
pay for a period of 5 years, never clarified that even if the rules and
regulations so provide, the past service of a job aspirant who has been a
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Government servant already for over 5 years would be wiped out, nor
could it have been so prescribed.
[18] Under the circumstances, all the petitions are allowed. In cases
where the petitioners were already enjoying pay fixations in regular scales,
their entire past service shall be protected for the purpose of pay and
allowances including leave encashment and post-retiral benefits as per
their appointments in new posts. Where the petitioners have not been
granted regular pay scales even after completion of 5 years of service, they
would be first brought over to regular pay scale from due dates. Upon their
fresh engagements as Teachers, their past service similarly shall be
protected. It is, however, clarified that none of the petitioners would have
any claim of seniority in their new engagements because in the new
organization they cannot carry the seniority of the past service so as to
jump over the other existing employees in the cadre.
Entire exercises of pay fixation and payment of arrears shall be
completed within 6(six) moths from today. Petition disposed of
accordingly. Pending application(s), if any, also stands disposed of.
( AKIL KURESHI ), CJ
Sukhendu
