High Court Of Tripura vs The State Of Tripura Represented ...
2021 Latest Caselaw 974 Tri

                        HIGH COURT OF TRIPURA
                              AGARTALA

                                 WA 05 /2019
Sri Dipak Debnath, S/O/ Lt. Debendra Debnath, Of TRTC Para,
Ambassa, P/O. and P.S. Ambassa District, Dhalai, Tripura. PIN-
799289.                                           ------Appellant(s)
                                Versus
1.The State of Tripura represented by the Secretary, Revenue
Department, Government of Tripura. Civil Secretariat, P.O. Kunjaban,
P.S. NCC, Dist. West Tripura.
2.District Magistrate and Collector Dhalai District, Jawahar Nagar,
P.O/ P.S. Ambassa, Dhalai, Tripura
3.The Sub-Divisional Magistrate, Ambassa, Dolubari, P.O/P.S.
Ambassa, Dist. Dhalai, Tripura.
4.The Secretary Finance Department, Government of Tripura, Civil
Secretariat, P.O. Kunjaban, P.S. NCC, Dist. West Tripura.
5.Sankar Debnath, (Group- D), O/O. The Sub- Divisional Magistrate,
Ambassa, Dolubari, P.O/P.S. Ambassa, Dist. Dhalai, Tripura, PIN-
799289.                                           -----Respondent(s)

                                   BEFORE

        HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI

           HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY

For the Appellant(s)         : Mr. A. Sengupta, Adv.
For the Respondent(s)        : Mr. D. Sharma, Addl.GA
Date of hearing              : 06.07.2021
Date of delivery of          : 27.09.2021
Judgment & order
Whether fit for reporting    :     Yes   No
                                         

                             JUDGMENT

[Per S.G.Chattopadhyay. J]

[1] This Writ Appeal has been filed against the judgment and

order dated 02.01.2019 of the learned Single Judge passed in WP(C)

No.1229 of 2018.

[2] The bare facts which are essential to appreciate the

challenge are as under:

The appellant was engaged as a Daily Rated Worker

(DRW) in the office of the Sub-Divisional Magistrate, Ambassa in

Dhalai District on 21.05.2000. By an order dated 20.07.2010, the DM

and Collector, Dhalai[Respondent No.2] dismissed the appellant from

service on the ground of his arrest and detention in custody for more

than 48 hours from 17.07.2010 in Ambassa P.S. Case No.43 of 2010

dated 17.07.2010 on the charge of kidnapping and gang rape. After

investigation of the case, charge sheet was submitted against the

appellant and others for having committed offence punishable under

Sections 366,376(2)(g) and 120B IPC. In the course of trial of the case

in the court of Addl. Sessions Judge at Kamalpur, 42 prosecution

witnesses were examined. By an order dated 16.10.2015 in ST 58 of

2012, trial court acquitted the appellant of all the charges since none

of those charges was proved against him. Pursuant to the order of his

acquittal, appellant filed a representation to respondent No.2 on

12.11.2015 seeking reinstatement on the ground of acquittal from the

criminal case. He also claimed regularization on twofold grounds. He

said that he completed ten years of service before his removal and

private respondent No.5 who joined the service with him on same date

was regularized on completion of 10 years of service. Since there was

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no response from respondent No.2, appellant submitted a

representation dated 20.10.2016 to the Chief Minister claiming

reinstatement and regularization. Copy of the said representation was

also given to Respondent No.2. By his letter dated 24.10.2016,

respondent No.2 forwarded the said representation of the appellant to

the Deputy Secretary of the Revenue Department requesting him to

examine the issue.

[3] Responding to the said letter of respondent No.2, the

Deputy Secretary, Revenue Department by his letter dated 05.01.2017

conveyed the decision of the Government to respondent No.2 to

initiate proposal in prescribed format for creation of 01 post of DRW

and take up the matter with the finance department for approval. Such

proposal for creation of post was first initiated by the said respondent

on 20.09.2017. Thereafter, a fresh proposal for creation of 01 post of

DRW (Caretaker) was initiated by respondent No.2 on 20.11.2017.

The respondent informed these facts to the Joint Secretary of the

Revenue department by his letter dated 20.11.2017[Annexure- 8 to

the writ petition]. Thereafter, there was no progress in the matter.

Appellant, therefore, filed WP(C)1229 of 2018 claiming the following

reliefs :

"(i)Admit the petition

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(ii)Call for the relevant record from the custody of the respondents.

(iii)Issue writ in the nature of Mandamus directing respondents 1 to 4 to engage the petitioner as DRW(Daily Rated Worker) in the office of respondent No.3 and thereafter convert his service as Group-C(Caretaker)as per proposal of respondent No.2 dated 20.11.2017 (Annexure-8)

(iv)Issue writ in the nature of Mandamus directing the respondents 1 to 4 to engage the petitioner within certain period and also direct them to convert the service of the petitioner as per proposal of respondent No. 2 dated 20.11.2017(Annexure-8) within certain period.

(v)Pass any other order having regard to the facts and circumstances of this case ...............".

[4] No counter affidavit was filed by the respondents before

the learned Single Judge. Relying on the decision of the Apex Court in

the case of SECRETARY, STATE OF KARNATAKA AND OTHERS

VERSUS UMA DEVI (3) AND OTHERS reported in (2006) 4 SCC 1,

learned Single Judge held that the proposal of respondent no.2 for

creation of post did not confer any fundamental or statutory right on

the appellant for appointment in the said post and court cannot issue

any direction to the state respondent to reinstate the appellant in the

said post without following due process of public employment.

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Relevant extract of the judgment of the learned Single Judge is as

under:

"14. In the case at hand, the writ petitioner has no indefeasible right to be engaged or appointed to any post. The proposal does not confer any right upon the petitioner to bind the State- respondents to engage him in the post proposed to be created depriving other similarly situated job aspirants.

15. Another important aspect, in this context, is that whether this Court while exercising its extra-ordinary jurisdiction under Article 226 of the Constitution of India has the power to issue a writ of mandamus in favour of the writ petitioner directing the State-respondents to engage him to the proposed post of Caretaker as DRW in terms of his prayer in the writ petition.

16. Here again, it would be apposite to refer Uma Devi (Supra) wherein their Lordships in para-52 has held that:-

"52. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such person. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bhadur (Dr.) v. Governing Body of the Nalanda College. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the Government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent."

17. In my considered view, the above principle is squarely applicable in the facts of the present case. Here, neither any statute imposes a legal duty on the authority concerned nor the writ petitioner has any fundamental or legal rights to claim

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appointment under the State respondents without following the due process of constitutional scheme for public employment.

18. In Uma Devi(3) Supra it has been categorically held that the wide powers under Article 226 are not intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment.

19. Further, in the given facts, I cannot restrain myself but to criticize the role of the State-respondents to create a new post only with the particular purpose to engage/appoint the writ petitioner dehors the constitutional schemes of public employment, and the process of such selection amount to another mode of public employment which is not at all expected from any government functionaries or its instrumentalities. The State functionaries sitting in the offices of the higher hierarchies of administration should not forget their role as the sentinel and as the guardian of equal protection of rights of each and every individuals and should not depart from the normal rule of appointment as envisaged in Article 14 and 16 of the Constitution of India in the name of rendering individualistic justice to suit a given situation what they have done in the present case.

20. I may again gainfully refer the judgment of Uma Devi(Supra) where their Lordships in para-41 referring to an earlier decision in Indra Sawhney Vs. Union of India, 1992 Supp(3) SCC 217 have observed thus (SCC.p.35, para.41):

" 41. In the earlier decision in Indra Sawhney v. Union of India B.P. Jeevan Reddy, J. speaking for the majority, while acknowledging that equality and equal opportunity is a basic feature of our constitution, has explained the exultant (sic exalted) position of Articles 14 and 16 of the Constitution in the scheme of things. His lordship stated:

(SCC pp.633-34, paras 644-45) " 644[6]. The significance attached by the Founding Fathers to the right to equality is evident not only from the fact that they employed both the expressions „equality before the law‟ and „equal protection of the laws‟ in Article 14 but proceeded further to state the same rule in positive and affirmative terms in Articles 15 to 18.... 645[7]. Inasmuch as public employment always gave a certain status and power-it has always been the repository of State power-besides the means of livelihood, special care was taken to declare equality of opportunity in the matter of public employment by Article 16. Clause (1) expressly declares that in the matter of public employment or appointment to

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any office under the State, citizens of this country shall have equal opportunity while clause(2) declares that no citizen shall be discriminated in the said matter on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. At the same time, care was taken to declare in clause(4) that nothing in the said article shall prevent the state from making any provision for reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State."

21. The crux of the aforesaid discussion is that the whole exercise of creation of new post of "Caretaker" as DRW with the sole object and purpose of accommodating the writ petitioner tantamounts to adopting of pick and chose policy at the whims of the State-respondents and is against the established scheme of public employment enshrined in our Constitution.

22. Having due regard to the facts discussed and settled legal position as surfaced above, the reliefs claimed for by the writ petitioner merit no consideration and hence, dismissed."

[5] By means of filing this Writ Appeal, appellant has

challenged the said judgment of the learned Single Judge mainly on

the following grounds:

(i) learned Single Judge did not appreciate the fact that

the appellant never sought for any direction to the

respondents for creation of any post for him.

(ii) the learned Single Judge did not also appreciate the

fact that the appellant filed the Writ Petition seeking a

direction to the respondents only for his reinstatement as

of DRW since he was acquitted from the criminal case

after full trial.

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[6] Under the premises aforesaid, appellant sought for

dismissal of the judgment of the learned Single Judge and relief in

terms of his prayer in the said writ petition.

[7] Heard Mr. A.Sengupta, learned advocate appearing for

the appellant as well as Mr. D.Sharma, learned Addl. GA representing

the State respondents.

[8] It was argued by Mr.Sengupta, learned counsel of the

appellant that the appellant and private respondent No.5 were inducted

together as daily wager in the year 2000. Subsequently, the appellant

was implicated in a false case and he was arrested during investigation

of the case. Since he was in custody for more than 48 hours, he was

removed from his engagement by respondent No.2. Counsel

contended that since he was acquitted from the case, the appellant

deserved reinstatement. More so, because, private respondent No.5

who was engaged together with the appellant as DRW, was given

regular pay in Group-D after completion of 10 years of service. It was

further contended by learned counsel that representation of the

appellant was not considered by the respondents. He, therefore,

approached this court by filing the writ petition seeking his

reinstatement as DRW. But the learned Single Judge declined to grant

a relief to him erroneously holding that the appellant sought for a

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direction for creation of post and reinstatement therein. Counsel,

therefore, urges for allowing the appeal.

[9] Mr.D.Sharma, learned Addl. GA representing the state

respondents, on the other hand, contends that in the writ petition, the

appellant referred to the proposal dated 20.11.2017 of respondent

No.2 for creation of a post of DRW (Group-C, Caretaker) and sought

for a direction to the respondents for creation of the said post and

reinstatement of the appellant therein. Counsel argued that learned

Single Judge declined to entertain such prayer on the ground that the

appellant could not establish any fundamental or statutory right to

claim such employment. Counsel contends that there was no illegality

in the observation of the learned Single Judge and therefore, the

impugned judgment does not call for any interference in appeal.

[10] On the basis of the aforesaid rival contentions urged on

behalf of the parties, the following point would arise for our

consideration:

(i)Whether in the given facts and circumstances, writ of mandamus can be issued to the state respondents, directing them to reinstate the appellant as DRW (Caretaker) on the ground of his acquittal from the criminal case.

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[11] Apparently, the appellant was not holding a substantive

post. He was a daily wager who was removed from his engagement

for his arrest and detention in a criminal case on the charge of

kidnapping and gang rape. No advertisement was issued and no

recruitment test was conducted for such engagement. Appellant could

not even produce any formal engagement letter to prove his

engagement as a Daily wager. He relied on the memorandum dated

11/08/2004[Annexure-1 to the writ petition], whereby the finance

department conveyed to all treasury officers and sub-treasury officers

across the state, the decision of the council of ministers for making

regular payment of wages to the daily rated workers/part-

time/contingent/casual/fixed pay workers who were irregularly

engaged. A list of such irregularly engaged workers was annexed to

the said memorandum and said list included the name of the appellant.

[12] In the case of Uma Devi(3)(supra), though the Apex

Court recognized the right of governments, union or state, and its

instrumentalities to engage persons temporarily or on daily wages to

meet the needs of the situation, the court held that such engagements

cannot be used to defeat the constitutional scheme of public

employment. It was further held that it is not the role of the courts to

encourage or approve the appointments made or engagements given

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outside the constitutional scheme (para-12). In this regard, Apex Court

made the following observation:

"13. ......... In effect, orders based on such sentiments or approach would result in perpetuating illegalities and in the jettisoning of the scheme of public employment adopted by us while adopting the Constitution. The approving of such acts also results in depriving many of their opportunity to compete for public employment. We have, therefore, to consider the question objectively and based on the constitutional and statutory provisions. In this context, we have also to bear in mind the exposition of law by a Constitution Bench in State of Punjab Vs. Jagdip Singh & Ors. (1964 (4) SCR 964). It was held therein,

"In our opinion, where a Government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give, he will not in law be deemed to have been validly appointed to the post or given the particular status."

[13] In the given case, the document (Annexure-1 to the writ

petition) relied on by the appellant to prove his engagement would

demonstrate that the appellant was irregularly engaged as daily wager.

By the said document (Annexure-1), only the regular payment of

wages to the appellant and similarly situated workers was ensured.

The document did not confer upon him any right to the post.

[14] Situated thus, writ of mandamus directing the

respondents to reinstate the appellant as DRW cannot be issued in this

case. However, in view of the fact that his engagement was terminated

on the ground of his involvement in a criminal case and later he was

acquitted from that case and pursuant to his acquittal, the respondents

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were also considering his claim for re-engagement, this judgment shall

not be an embargo if the respondents decide to re-engage the appellant

in accordance with law.

[15] In terms of the above, the appeal stands dismissed and

disposed of.

As a sequel, miscellaneous petition(s), if any, shall stand

closed.

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




Saikat Sarma, P.A




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