Dr. Basu Maan Das vs The State Of Tripura And 2 Others
2022 Latest Caselaw 656 Tri

                             HIGH COURT OF TRIPURA
                                   AGARTALA
                              WP(C)No.320 of 2020

       Dr. Basu Maan Das

                                                                ----Petitioner(s)
                                       Versus

       The State of Tripura and 2 Others
                                                             ---- Respondent(s)

       For Petitioner(s)         :      Mr. P. Roy Barman, Sr. Adv.
                                        Mr. S. Bhattacharjee, Adv.
       For Respondent(s)         :      Mr. D. Sharma, Addl. G.A.
       Date of hearing           :      05.07.2022
       Date of delivery of
       Judgment & Order          :      12.07.2022
       Whether fit for
       reporting                 :      YES


                 HON'BLE MR. JUSTICE T. AMARNATH GOUD

                                Judgment & Order

Heard Mr. P. Roy Barman, learned senior counsel assisted by

Mr. S. Bhattacharjee, learned counsel appearing for the petitioner as well as

Mr. D. Sharma, learned Addl. G.A. appearing for the respondents.

2. By means of this writ petition the petitioner has sought for

redress of his grievance arising out of not counting his past service rendered

by him in Karimganj College, Assam as Assistant Professor w.e.f.19.09.2001

to 20.01.2020 before his joining in the same post under the Higher Education

Department, Government of Tripura. The petitioner has urged before this

court for necessary direction from the Hon'ble High Court upon the

respondents for counting the past service rendered by the petitioner for all

purposes.

3. The facts are mostly undisputed. The fact of the petitioner is

that the petitioner is serving as Assistant Professor under the respondent

No.2-The Director of Higher Education, Government of Tripura being posted

at Netaji Subhas Mahavidyalaya, Udaipur, Gomati Tripura.

4. Initially, the petitioner joined in Karimganj College as

permanent lecturer in the Department of Chemistry on 19.09.2001 in the pre-

revised UGC pay scale of Rs.8000-13,500/-. Thereafter, the said scale was

revised to Rs.15,600-39,100/- with academic grade pay of Rs.6000/-.

5. The Tripura Public Service Commission vide Advertisement

No.04/2010 [Annexure-1 to the writ petition] invited online applications from

bonafide India Citizens for recruitment to 246 posts of Assistant Professor

[ST-172, SC-71], Reserved for differently abled (PH Locomotor)(UR) in

subject/displines mentioned in the advertisement. In the said advertisement,

it was stated that all the posts were grouped together for the purpose of

reservation and shall not be segregated subject/discipline wise for

identification for a particular category against any subject/discipline and in

case of non-availability of required numbers of suitable SC/ST candidates the

remaining vacancies upto a maximum ceiling of 102 will be filled by suitable

general candidates. The advertisement contained the scale of pay, education

and other qualification etc. the advertisement may be treated as a part of the

pleading for reliance.

6. The petitioner has all the requisite qualifications to apply for

the post of Assistant Professor, Department of Chemistry and applied through

proper channel, with no objection from his employer, i.e. the Government of

Assam. Thereafter, the petitioner was selected by the TPSC for the post of

Assistant Professor in the Department of Chemistry and the TPSC

recommended the name of the petitioner for appointment. Thereafter, vide

memorandum dated 04.11.2020 issued by the Special Secretary, Director of

Higher Education, Tripura the petitioner was offered a temporary post of

Assistant Professor in the Chemistry (Group-A, Gazetted), Government

General Degree College, in the revised pay band of Rs.15,600-39,100/- with

AGP Rs.6000/- per month.

7. The petitioner accepted the offer of appointment in the post of

Assistant Professor within the stipulated period. Thereafter, vide notification

dated 27.12.2010 [Annexure-3 to the writ petition] issued by the Dy.

Secretary to the Government of Tripura, Education (Higher) Department, the

petitioner and 86 others were appointed as Assistant Professor (Group-A,

Gazetted), General Degree College, in the pay ban of Rs.15,000-37,000/-

with AGP of Rs.6000/- plus admissible allowances. The name of the petitioner

appeared at Serial No.48 of the list and posting of the petitioner was given at

Government Degree College, Dharmanagar, North Tripura.

8. The Principal Karimganj College, employer of the petitioner

issued no objection and experience certificate dated 09.08.2010 in favour of

the petitioner to the effect that the petitioner is a permanent lecturer in the

Department of Chemistry, Karimganj College since 19.09.2001 and his

authority has no objection if he joined Government Degree College,

Education (Higher) Department, Government of Tripura and he will be

permanently released by the Principal, Karimganj, Assam w.e.f. 20.11.2010

after noon. The said Principal issued last pay and allowance certificate in

favour of the petitioner on 18.11.2010.

9. The University Grants Commission (Minimum Qualification for

Appointment of Teachers and other Academic Staff in Universities and

College and other Measures for the Maintenance of Standards in Higher

Education) Regulations 2010, inter alia provides that Previous regular service,

whether national or international, as Assistant Professor, Associate Professor

or Professor or equivalent in a University, College, National Laboratories or

other scientific/professional Organizations such as the CSIR, ICAR, DRDO,

UGC, ICSSR, ICHR, ICMR, DBT, etc., should be counted for direct recruitment

and promotion under CAS of a teacher as Assistant Professor, Associate

Professor, Professor or any other nomenclature these posts are described as

per Appendix III - Table No. II provided that:

(a) The essential qualifications of the post held were not lower than the qualifications prescribed by the UGC for Assistant Professor, Associate Professor and Professor as the case may be.

(b) The post is/was in an equivalent grade or of the pre- revised scale of pay as the post of Assistant Professor (Lecturer) Associate Professor (Reader) and Professor.

(c) The candidate for direct recruitment has applied through proper channel only.

(d) The concerned Assistant Professor, Associate Professor and Professor should possess the same minimum qualifications as prescribed by the UGC for appointment to the post of Assistant Professor, Associate Professor and Professor, as the case may be.

(e) The post was filled in accordance with the prescribed selection procedure as laid down in the Regulations of University/State Government/Central Government/ Concerned Institutions, for such appointments.

(f) The previous appointment was not as guest lecturer for any duration, or an ad hoc or in a leave vacancy of less than one year duration. Ad hoc or temporary service of more than one year duration can be counted provided that:

(i) the period of service was of more than one year duration;

(ii) the incumbent was appointed on the recommendation of duly constituted Selection Committee; and

(iii) the incumbent was selected to the permanent post in continuation to the ad hoc or temporary service, without any break.

(g) No distinction should be made with reference to the nature of management of the institution where previous service was rendered (private/local body/Government), was considered for counting past services under this clause.

10. In terms of Regulation 10.1 of the said regulation, 2010 the

petitioner became entitled to counting of his past service rendered by him

under Assam Government as Assistant Professor before joining Higher

Education Department, Government of Tripura as Assistant Professor,

Government Degree College. While the petitioner was appointed as Assistant

Professor under Assam Government his qualification was in terms of UGC

qualification and post which the petitioner held before joining and the post

which is being held by the petitioner after joining is the same post. The

petitioner had applied for direct recruitment in the post of Assistant

Professor, Chemistry in response to TPSC Advertisement NO.04/2010,

through proper channel and TPSC filled up the post of Assistant Professor,

Chemistry in accordance with the prescribed selection procedure laid down

by the UGC. In terms of FR 22 C the petitioner is also entitled to pay

protection.

11. Unfortunately, after joining in the post of Assistant Professor

under the Directorate of Higher Education, the petitioner was not given the

benefit of past service and pay protection. As a result the petitioner has been

deprived of many years of dedicated services, seniority and financial benefit.

The petitioner has submitted representation dated 06.07.2013 through

proper channel and approached the Director of Higher Education for getting

the benefit of past service rendered by him in the same post in Karimganj,

Assam under the Government of Assam. In the said representation, the

petitioner has given all factual details and background to substantiate his

claim for counting his past services and continuation of service. The

petitioner has also enclosed last pay certificates along with representations

with all necessary documents including the copy of UGC Regulations, 2010.

12. In reply to the said representation dated 06.07.2013 the Joint

Director, Directorate of Higher Education, Tripura vide letter dated

11.12.2013 communicated to the Principal, Government Degree College,

Dharmanagar, North Tripura to inform him that the application of the

petitioner has been examined by the Finance Department and on

examination, details had been asked for :

1. Whether Assam Government will bear the leave salary and pension contribution.

2. Whether the petitioner has drawn any pensionary benefits from his previous employer at the time of release.

3. Whether Karimganj College under any pension scheme, if so furnished documents.

13. By a letter dated 31.03.2014 the Principal Karimganj College,

Assam communicated to the Director of Higher Education, Government of

Tripura to inform that the petitioner who was a permanent Professor of the

said College joined the College on 19.09.2001 and he permanently released

on 20.11.2010 to join the Government Degree College, Dharmanagar,

Tripura. By the said letter it is also known that all College Teachers of Assam

are entitled to get pension benefit in terms of Assam College Provincialisation

Rules, 2010, if they had joined before 01.02.2005. It has been also stated id

the said letter that6 the GPF Account of the petitioner could not be opened

before he took permanent release though he was eligible for pension under

the old pension scheme.

14. The Dy. Director of Higher Education, Assam vide letter dated

27.10.2017 [Annexure-10 to the writ petition] communicated to the petitioner

in response to the letter dated 11.12.2013 and letter dated 09.09.2016 to

furnish information with supporting documents as per queries made in the

letter for necessary action.

15. Thereafter, the petitioner submitted a forwarded letter on

07.06.2018 to the Director of Higher Education, Government of Tripura

stating that the same set of documents had been also forwarded to the

Director of Higher Education, Government of Assam. The petitioner has also

stated that he was again sending the documents as per enclosure for the

purpose of counting his past service at Karimganj College since 19.09.2001.

16. The Director of Higher Education, Assam communicate to the

Principal, Government Degree College, North Tripura vide letter dated

21.08.2018 that as per Rule 98(2) of Assam Service (Pension) Rules, 1969 a

permanent Government servant on persistent absorption in a public

undertaking will be eligible for pro-rata pension and DCRG on the length of

his qualifying service under the Government till the date of permanent

absorption and as such, there is no provision of Rules to bear the leave salary

and pension contribution by the Government. It has been further stated in

the said letter that the petitioner did not draw any pensionary benefit as no

such benefit has been sanctioned in hit favour by the Director of Higher

Education, Assam. The letter further stated that Karimganj College being a

provincialised College under pensionable establishment as per Assam Service

(Pension) Rules, 1969.

17. The petitioner has made a representation on 24.09.2018

through proper channel to the Director of Higher Education with reference to

the letter dated 21.08.2018 for giving him the benefit of past service for

pension and pay protection. The representation dated 24.09.2018 submitted

to the Director of Higher Education and was forwarded by the Principal,

Netaji Subash Mahavidyalay to the Director of Higher Education vide letter

dated 26.09.2018.

18. Thereafter, the OSD, Director of Higher Education, vide letter

dated 16.10.2019 communicated to the Principal, Netaji Subash Mahavidyalay

to the Director of Higher Education as to reason for time intervening the

period of release of the petitioner from earlier post from 20.11.2010 and

joining of the petitioner the post under Director of Higher Education on

13.02.2011.

19. In response to the letter dated 16.10.2019 the petitioner made

response to the Director of Higher Education through proper channel by his

representation on 25.10.2019 and letter dated 31.10.2019 that after his

release from Karimganj College on 20.11.2010, he was notified to join the

Government Degree College, Dharmanagar on or before 15.02.2011 by letter

dated 27.12.2010. As his mother was seriously ill and subsequently died, he

could not join on 14.02.2011 and his joining has been duly accepted by the

letter dated 24.03.2011. The Principal, Netaji Subash Mahavidyalay, Udaipur

vide letter dated 31.10.2019 forwarded the aforesaid representation dated

25.10.2019 submitted by the Director of Higher Education, Government of

Tripura.

20. The petitioner lodged his grievance arising out of not counting

his past service rendered by him in the same post before joining as Assistant

Professor under Director of Higher Education, Government of Tripura vide

Registration No.GOVTR/E/2020/00025 on 09.02.2020. In response, thereto,

vide letter dated 28.02.2020 the petitioner has been informed that the

Finance Department has already regretted the proposal for counting his past

service vide U.O. No.25 FIN/ESTT(II)/19 dated 10.04.2019.

21. The petitioner was not conveyed the decision of the Finance

Department. From the letter dated 28.02.2020 the petitioner came to know

about the Finance Department refusal of not granting him his past service

benefit.

22. Most arbitrarily and illegally the past services of the petitioner

have not been taken into consideration though under UGC regulations and FR

22 C the petitioner is entitled to counting of his past service for the purpose

of pension, pay protection and other pensionary benefits. As per the UGC

guidelines the petitioner is also entitled to be a Associate Professor in the pay

scale pertaining to the said post on completion of 14 years since his initial

joining on 19.09.2001. The petitioner is entitled to regularly monthly pension

under the old scheme as the petitioner joined service when the old pension

was in force. The petitioner has prayed for necessary direction from the

Hon'ble High Court upon the respondents for counting the past services

rendered by the petitioner for all purpose.

23. Mr. D. Sharma, learned Addl. G.A. appearing for the

respondents submitted that the petitioner was initially appointed in the

Karimganj College, Assam and it is a non-government college. He was

released on 20.11.2010 and joined in the Government Service in Tripura in

his new place of posting on 14.02.2011. His appointed letter was issued on

27.12.2010. In paras-13 and 16 of the counter affidavit filed by the

respondents the respondents has stated as under :

"13. That in reply to the statement6 made in paragraph 9 of the writ petition it is stated that, as per the document produced by the petitioner it is evident that he was released from Karimganj College, Assam w.e.20.11.2010 (afternoon). But there is no indication in the said note that he has been released to enable him to join his duties, as stated in this para. Before issuance of appointment letter the Petitioner took release from his previous employment without following the rules of technical resignation. Hence, it is clear case of discontinuance/break in service with a gap of 85 days.

16. That in reply to averments and/or contentions made in paragraph-13 of the writ petition it is stated that the petitioner's past service is guided by the State Government's Rules and Regulation, adopted Rules, he being a State Government employee. As per para-6 of Notification issued by the State Government vide No.F.4(11-4)-DHE/Budget/08(L- III) dated 02.02.2010 regarding revision of pay under 6 th CPC UGC it appears that other terms and conditions of service of teachers may be notified by the State Government on the line of this order following regulations issued/to be issued by the UGC on this behalf. The petitioner has joined under this order and the State Government has not notified any such terms and conditions following the Notification mentioned herein regulating past service as per UGC Regulations, 2010 indicated in this para. As a State Government employee, the petitioners' past service is regulated by CCS(Pension) Rules, 1972, as adopted by the State Government. It appears that there is no evidence produced by the petitioner that his application has been forwarded through proper channel and also appears that the petitioner has resigned from his appointment on his own volition with a view to his taking up the new post or it may be such that it was not possible to forward his application in the public interest but the petitioner had volunteered to resign his post. In such case, the resignation of petitioner will subsist and entail forfeiture of past service. Moreover, another issue raises here that he was released from his past service on 20.11.2010, while he has joined in the instant post of Assistant Professor under the State Government on 14.02.2011 i.e. after a gap of 85 days, which also entailed forfeiture of past service due to break in service.

It appears that the petitioner has rendered his service in Karimganj College, which is a Non-Government College as per list of Colleges available in the UGC's Website. There is no document produced by the petitioner that he applied through proper channel or his application for the instant post held by him has been forwarded to TPSC."

24. Mr. Sharma, learned Addl. G.A. has submitted that there is no

evidence produced by the petitioner that his application has been forwarded

through proper channel and also appears that the petitioner has resigned

from his appointment on his own volition with a view to his taking up the

new post or it may be such that it was not possible to forward his application

in the public interest but the petitioner had volunteered to resign his post. In

such a case, the resignation of the petitioner will subsist and entail forfeiture

of past service. Moreover, he was released from his past services on

20.11.2020 while he has joined in the instant post of Assistant Professor

under the State Government on 14.02.2011 i.e. after a gap of 85 days which

also entails forfeiture of past service due to break in service. He has also

referred to Rule 26(1) of CCS Pension Rules where it has been stated that

the 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.

25. He has also referred to 10.0 AND 10.1(C) of UGC Regulations,

2010 which provides as under :

"10.0 COUNTING OF PAST SERVICES FOR DIRECT RECRUITMENT AND PROMOTION UNDER CAS.

10.1(C) The candidate for direct recruitment has applied through proper channel only."

26. Having appreciated submissions as advanced by the counsel

for the parties this court is of the view that the main case runs around for

considering the case of the petitioner falls on two factual matrix. One with

regard to the petitioner claiming continuous of service when there is

breakage of 85 days, the said delay is not explained from 20.11.2010 to

14.02.2011. In a representation made by the petitioner on 25.10.2019 to the

Director of Higher Education where he has stated that due to illness and

death of his mother he could not approach on time. It is pertinent to note

that in the said letter, the delay of 85 days as pointed out by the respondents

have not been explained and duration of mother's illness and the date of her

death have not been clearly mentioned by the petitioner. This court has no

hesitation to said that the petitioner has not approached this court with clean

hands.

27. On the issue of UGC Guidelines in 10.1(C) where it has been

mentioned that the candidate for direct recruitment has applied through

proper channel only meaning the institution has to recommend and forward

the case of the candidate is not in the case of the petitioner, since the

petitioner has not approached through the existing institution. Rule 26.1 of

CCS Pension Rules provides as under :

"(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."

28. Rule 26.3 of CCS Pension Rules as relied by the counsel

appearing for the petitioner that the condonation can be considered is not

within the purview of this court and the same is before the competent

authority, since the competent authority by way of its counter has rejected. It

is not upon the petitioner to seek indulgence of this court for condoning the

delay under Rule 26.3 of the said rules. Rule 26.3 provides as under :

"(3) Interruption in service in a case falling under sub-rule(2), due to the two appointments being at different stations, not exceeding the joining time permissible under the rules of transfer, shall be covered by grant of leave of any kind due to the Government servant on the date of relief or by formal condonation to the extent to which the period is not covered by leave due to him."

29. If the prayer of the petitioner is considered by this court and

the said delay of 85 days is condoned, there is no yardstick as to what extent

this court in Article 226 of the Constitution of India can exercise for purpose

of condoning that delay when the statute specifically empowers the

concerned authority for condoning, the High Court cannot enter into the

shoes of the concerned authority and condone the delay. Though the

petitioner has joined the service in time, the continuity has not been

extended and there is breakage in service and thus, this court finds sufficient

force in the submission of Mr. Sharma, learned Addl. G.A. appearing for the

respondents.

Accordingly, the arguments of the petitioner is negated and the

writ petition is liable to be dismissed and the same is accordingly dismissed.

JUDGE

Sabyasachi B