The Tripura State Council For ... vs Deepayan Ghosh
2021 Latest Caselaw 898 Tri

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                        HIGH COURT OF TRIPURA
                              AGARTALA
                                 WA No. 155 of 2021
The Tripura State Council for Science and Technology
represented by its Member Secretary, PO- Kunjaban, PS-
New Capital Complex, District- West Tripura.
                                                              ............ Appellant(s).
                                    Vrs.
1.     Deepayan Ghosh,
Son of Sri Dilip Kr. Ghosh, resident of village- Shib Bari
Road, PO and PS- Dharmanagar, District- North Tripura.
2.    Avisek Cjhaudhuri,
son of Ajit Kr. Chaudhuri, resident of village and PO-
Kameswar West, PS- Dharmanagar, District- North Tripura.
3.      The State of Tripura,
represented by the Secretary cum Commissioner,
Department of Science and Technology and Environment,
Government of Tripura, Vigyan Bhawan, 1st Floor,
Gurkhabasti, PO- Kunjaban, PS- New Capital Complex,
District- West Tripura.
4.      The Director,
Department of Science and Technology and Environment,
Government of Tripura, Vigyan Bhawan, 1st Floor,
Gurkhabasti, PO- Kunjaban, PS- New Capital Complex,
District - West Tripura.
                                                             ............ Respondent(s).

BEFORE HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY For Appellant(s) : Mr. D. Bhattacharjee, Govt. Advocate.

              For Respondent(s)            : Mr. Arijit Bhowmik, Advocate.
              Date of hearing and
              Judgment & Order             : 13th September, 2021.
              Whether fit for reporting    : NO.


                         JUDGMENT AND ORDER(Oral)

(Akil Kureshi, CJ)

This appeal is filed by the Tripura State Council for Science and

Technology (hereinafter to be referred to as the Council) to challenge the Page - 2 of 7

judgment of the learned Single Judge dated 15.07.2020 passed in Review

Petition No.75 of 2019.

[2] Brief facts are as under:

The respondents No. 1 and 2 were the original petitioners who had

filed WP(C) No. 503 of 2018. Their case was that the Council had advertised the

posts of Research Officer (Engineer) and Research Officer (Science) under

separate advertisements issued in 2014 and 2015. This advertisement provided

that appointments would be on solitary monthly remuneration of Rs.12956/-

keeping the posts in regular scale in abeyance. Both the petitioners were selected

and offered appointment. The petitioners accepted such offers and were duly

appointed and joined on 14.8.2016 and 8.1.2016. The petitioners demanded

regular pay scales from inception of their appointments. For which purpose they

had filed the said petition. The Council appeared and an affidavit was filed on

behalf of the Council by one Sri Nataraj Datta in which it was stated that due to

mistake in the advertisement it was wrongly mentioned that the appointments

would be on contractual basis for three years. This error was also committed in

the offer of appointment. It was further declared that both the petitioners were

appointed against sanctioned regular posts through a proper selection process.

Once the error was detected, correspondence was made with the State

Government (for correction of the error) but till date there was no response.

[3] Based on these declarations made on behalf of the Council, the

learned Single Judge disposed of the writ petitions by a common judgment dated

27.2.2019. The Council was directed to treat the petitioners as regularly

appointed to the respective posts from the initial date of appointment. Their pay Page - 3 of 7

would be fixed in regular scale. They would get notional benefit of such pay

fixation but no arrears.

[4] At one stage the State Government challenged this judgment of the

learned Single Judge in WA No. 54 of 2019 which was dismissed on 27.08.2019

on the ground that the State has no reason to feel aggrieved by the decision of

the leaned Single Judge.

[5] Thereupon State Council first approached the Supreme Court

directly and was relegated to writ appeal before this Court. Thereupon the

Council filed the Writ Appeal No.192 of 2019 in which the stand taken was that

the declarations made on affidavit on behalf of the Council were not supported

by the documents on record. The Division Bench insisted that the Council must

seek a review in view of such changed circumstances and disposed of the writ

appeal on 19.11.2019. The Council thereupon filed Review Petition No.75 of

2019 in which it was contended that Sri Nataraj Datta had given statements

unauthorisedly and for which he was proceeded departmentally. The case of the

Council was that the appointment was made for a period of three years on

contractual basis.

[6] The learned Single Judge by the impugned judgment dismissed the

review petition, upon which the Council has filed this fresh writ appeal.

[7] We have heard learned counsel for the parties for final disposal of

the writ appeals. Perusal of the record would show that the advertisement dated

21.11.2014 for the post of Research Officer (Engineer) contained following

important declaration:

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"A. Item No.01: 01(one)(UR) temp. post of Research officer (Engineer),Group-A under Tripura State Council for Science & Technology in consolidated monthly remuneration of Rs.12,956.00 (keeping in abeyance the regular Scale of Pay Bank-4, Rs.13575037,000/- and Grade Pay Rs..3700/-)."

Under the heading "Other Important Information" it was stated as under:

"(10) The engagement will be purely on temporary basis on fixed remuneration as stated above initially for a period of 3 (three) years which may be extended further on satisfactory performance of the persons so engaged."

[8] A similar advertisement was issued for the post of Research

Officer (Science) on 8th September, 2015 containing similar terms and

conditions.

[9] These advertisements thus contained two important declarations.

First was that the posts in question were to be filled by way of consolidated

monthly remuneration by keeping in abeyance the regular pay scale in the Pay

Band-4 of Rs.13,575-37,000/- and the Grade Pay of Rs.3700/-. Second

declaration was that the engagement would be purely temporary and on fixed

remuneration for a period of three years.

[10] The offer of appointment made to both the petitioners was also

along with same lines. For example, under letter dated 6th August, 2015, Sri

Deepayan Ghosh, petitioner No.1 was offered the post of Research Officer

(Engineer) on contractual basis on consolidated monthly remuneration of

Rs.17,100 by keeping in abeyance the regular scale of Pay in Band-4 of

Rs.15,600-39,000/- with the Grade Pay of Rs.5400/-. The petitioner accepted

such offer. However, due to some unknown reason the acceptance was obtained

from the petitioner in a pro-forma which was meant for regular appointment.

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This minor lapse on part of the department however, would not materially

change the position.

[11] Since from the very beginning the advertisements specified that the

appointment would be made on fixed remuneration basis by keeping the post in

regular pay scale in abeyance and that such arrangement would be made for a

period of three years, two things immediately become clear. The petitioners are

not justified in expecting that they must be given regular scale of pay from

inception. They must work on fixed remuneration basis for a period of three

years before they can be brought over to the regular scales. On the other hand,

the Department is also not right in contending that the appointments were purely

contractual and that such contractual arrangement would continue at the pleasure

of the Council. In order to project such a case, the Council has disowned the

original affidavit-in-reply filed in the writ petition pointing out that the deponent

was not authorized to make such declarations and that for which he has also

proceeded departmentally. So far as we are concerned, however, this would not

establish the very case that the department wishes to put forth before us. The

advertisement showed that application is invited from eligible candidates for a

post which is otherwise regular but which would be offered for a period of three

years on consolidate salary. In such a situation, the department would have a

greater explanation than a mere declaration that the deponent of the affidavit had

made incorrect statements. We have also called the original file of the

department. Same revealed that the posts did exist on permanent basis and that

the same was a mere creation of temporary nature. The file noting dated

01.11.2014 of Sr. Scientific Officer would suggest that there were 4(four) vacant Page - 6 of 7

posts in the department including these two in the regular scale of pay. It was

suggested that if not filled up, these posts may lapse by end of February, 2015.

In order to avoid such lapsing of the posts, the recruitment process had to start

before it. It was suggested that appointment on such posts will be made on

contractual basis initially for a period of three years on consolidate salary by

keeping in abeyance regular scale as was done in recent similar recruitment. This

was approved by the Council and upon which it was decided on 14.11.2014 to

issue advertisement for filling up the post of Research Officer (Engineer). On

03.01.2015, the Sr. Scientific Officer placed a note suggesting that in response to

such advertisement, 45 applications have been received of which only 17

candidates are found eligible. He suggested, drawing a panel of seven members

to conduct the interview for selection which included the Chairman and six

members of the Council. This was also approved. It was after conducting the

interviews by the said panel that the petitioner No.1 was selected for the post in

question and offered appointment.

[12] Even the record of the Council nowhere suggests that these two

posts were created on a temporary basis to be filled only by way of contractual

arrangement. The posts were permanent. The selection process was a full-

fledged exercise inviting applications from all eligible candidates and who were

interviewed by a panel of seven members including the Chairman and six

members of the Council. This is in consonance with the advertisements issued

and the offers of appointments made. The Council cannot now resile from the

position that offering fixed salary for a period of three years was only by way of

cost cutting measure. To reiterate, clearly the posts in question were permanent Page - 7 of 7

posts and appointments were issued after regular selection process. The Council

therefore, cannot avoid granting regular scale of pay to the petitioners after

completion of period of three years. At the same time, as noted, the expectation

of the petitioners to be granted such pay scale from beginning is not justified. In

the advertisement is clearly specified that the selected candidates will be

engaged on fixed remuneration for three years keeping the regular posts in

abeyance. Had the department offered such appointments on regular scale from

the beginning, it is possible to envisage that more people would have applied.

Having competed with other eligible candidate who accepted such terms, the

petitioners cannot claim extended benefits over and above those which were

offered in the advertisement and offer of appointment.

[13] In the result, the impugned judgments of the learned Single Judge

are modified to the limited extent of provided that both the petitioners shall be

granted the regular pay scale upon completion of three years of service after

joining. In other words, direction for granting such benefit from the beginning is

set aside. The judgments modified to the above. Appeals allowed in part and

disposed of accordingly. This shall be done within four months from today.

Pending application(s), if any, also stands disposed of.

   (S. G. CHATTOPADHYAY),J.                        (AKIL KURESHI),CJ.




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