Tripura High Court
Sri Sandip Roy vs The State Of Tripura on 4 October, 2023
Page 1 of 12
HIGH COURT OF TRIPURA
AGARTALA
WA NO.119 OF 2023
Sri Sandip Roy,
S/o Late Haripada Roy, resident of Hairmara, A.D. Nagar, P.O-
S.D. Mission, P.S.-A.D. Nagar, District - West Tripura, Pin-
799003.
......... Appellant(s)
Vs.
1. The State of Tripura,
represented by the Secretary, GA(Printing & Stationery)
Department, Govt. of Tripura, New Secretariat Building, New
Capital Complex, Agartala, West Tripura, Pin-799010.
2. The Director,
G.A (Printing & Stationery) Department, Government of Tripura,
Bardowali, Agartala, West Tripura.
........Respondent(s)
For the Petitioner(s) : Mr. Somik Deb, Sr. Advocate.
Mr. P. Chakraborty, Advocate.
For the Respondent(s) : Mr. D. Bhattacharjee, G.A.
Mr. S. Saha, Advocate.
Date of hearing and delivery of
Judgment & Order : 04.10.2023.
Whether fit for reporting : YES.
HON'BLE MR JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE ARINDAM LODH
JUDGMENT AND ORDER(ORAL)
(Justice T. Amarnath Goud)
The appellant herein presented a writ petition
numbered as WP(C) No.318 OF 2022, before the Hon'ble Single
Bench of this Court inter alia praying for promoting him to the post
of Head Computor, as per the existing Recruitment Rules. The said
case fell for consideration on 05.07.2023 and after hearing the
rival submissions, advanced by the parties, the said writ petition
was disposed of by the Hon'ble Single Judge vide Judgment and
Order dated 05.07.2023. Being dissatisfied with the said Order
dated 05.07.2023, this present writ appeal has been filed seeking
to quash/set aside the impugned Order dated 05.07.2023 passed
in WP(C) No.318 of 2022 and thereafter to allow this Writ Appeal
as well as the Writ Petition.
2. The brief fact of this case is that Sri Sandip Roy, the
appellant herein, joined in the post of Computor, in computing
section of Tripura Government Press under G.A. (Printing and
Stationery), Department, on 09.02.2007. The appellant was
granted ad hoc promotion to the post of Senior Computor vide
orders dated 16th February, 2022. The petitioner thereafter made
representations before the respondents for reviewing his ad hoc
promotion to the post of Senior Computor and promoting them as
Head Computor. Thereafter, the appellant filed a writ petition as
mentioned here-in-above seeking redressal of his grievance. But
the learned Single Judge dismissed the said writ petition filed by
the appellant herein. Hence this appeal.
3. Heard Mr. Somik Deb, learned Sr. counsel assisted by
Mr. P. Chakraborty, learned counsel appearing for the appellant as
well as Mr. D. Bhattacharjee, learned G.A., assisted by Mr. S.
Saha, learned counsel appearing for the State-respondents.
4. Mr. Deb, learned Sr. counsel appearing for the
appellant submits that under the Recruitment Rules framed under
Article 309 of the Constitution of India read with Section 29 of the
Indian Boilers Act 1923, the petitioner is entitled to be promoted to
the post of Head Computer. The Hon'ble Single Judge while
passing the Impugned Order dated 05.07.2023, failed to
appreciate that in the case of conflict between a Notification
issued, in exercise of power, either under the substantive part of
Article 309 of the Constitution of India on one hand, and an
Administrative Instruction, issued in exercise of the powers,
conferred under Article 162 of the Constitution of India, on the
other hand, the former must prevail over the latter. If there is a
conflict between Statutory Rules and the Rule framed under Article
162 of the Constitution of India, the Statutory Rule will override
the Rule framed under Article 162 of the Constitution of India.
To bolster his argument, learned Sr. counsel pressed
into service the following Judgments of the Hon'ble Supreme
Court.
i. Paras-5 and 6 of the Hon'ble Apex Court Judgment
reported in (1989) 1 SCC 175 titled as Union of India and ors.
Vs. Somasundram Viswanath and ors with emphasis given to
Para-6 of the said Judgment:-
"5. According to Paragraph VII of the Office
Memorandum, extracted above, it is clear that the absence of any of the
members of a Departmental Promotion Committee, other than the
Chairman, would E not vitiate the proceedings of the Departmental
Promotion Committee provided that the member absent has been duly
invited but he absented himself for some reason and that there was no
deliberate attempt to exclude him from the deliberation of the
Departmental Promotion Committee and that the majority of the
members constituting the Departmental Promotion Committee are
present in the meeting. In the instant case the only person who was
absent at the meeting of the Departmental Promotion Committee was
the Secretary to the Government of India, Ministry of Defence who could
not attend the meeting because he had to be present in Parliament at
the same time at which the Departmental Promotion Committee had to
meet. Th e Chairman of the Departmental Promotion Committee was
present and the Chairman and the other members who were present
constituted the majority of the Departmental Promotion Committee. It
was urged on behalf of the 1st respondent that the Office Memorandum
dated 30.12.1976 which contained the various administrative
instructions regarding the procedure for making promotions and the
functions of the Departmental Promotion Committees being merely in
the nature of PG NO 152 administrative instructions could not override
the Rules which had been promulgated under the proviso to Article
309 of the Constitution of India.
6. It is well settled that the norms regarding
recruitment and promotion of officers belonging to the Civil Services can
be laid down either by a law made by the appropriate Legislature or by
rules made under the proviso to Article 309 of the Constitution of India
or by means of executive instructions issued under Article 73 of the
Constitution of India in the case of Civil Services under the Union of
India and under Article 162 of the Constitution of India in the case of
Civil Services under the State Governments. If there is a conflict
between the executive instructions and the rules made under the
proviso to Article 309 of the Constitution of India, the rules made under
proviso to Article 309 of the Constitution of India prevail, and if there is
conflict between the rules made under the proviso to Article 309 of the
Constitution of India and the law made by the appropriate Legislature
the law made by the appropriate Legislature prevails. The question for
consideration is whether in the instant case there is any conflict between
the Rules and the Office Memorandum dated 30.12.1976, referred to
above. We have already noticed that there are different rules framed
under the proviso to Article 309 of the Constitution of India for making
recruitments to services in the different departments and provisions
have been made in them for the constitution of Departmental Promotion
Committees for purposes of making recommendations with regard to
promotions of officers from a lower cadre to a higher cadre. But these
rules are to some extent skeletal in character. No provision has been
made in any of them with regard to the procedure to be followed by the
Departmental Promotion Committees and their various functions and
also to the quorum of the Departmental Promotion Committees. These
details which were necessary for the proper functioning of the
Departmental Promotion Committees, as a matter of practice, were laid
down prior to 30.12.1976 by the Government of India in the form of
Office Memoranda issued from time to time and that on 30.12.1976 a
consolidated Office Memorandum was issued containing instructions with
regard to such details which were applicable to all Departmental
Promotion Committees of the various Ministries/Departments in the
Government of lndia. said Office Memorandum deals with several topics,
such as of the Departmental Promotion Committees, frequency at which
Departmental Promotion Committees should meet, matters to be put up
for consideration by the Departmental Promotion Committees, the
procedure to be observed by the Departmental Promotion Committees.
the procedure o be followed in the PG NO 153 case of an officer under
suspension whose conduct is under investigation or against whom
disciplinary proceedings are initiated or about to be initiated, validity of
the proceedings of the Departmental Promotion Committees when a
member is absent, the need for consultation with the Union Public
Service Commission, the procedure to be followed when the appointing
authority does not agree with the recommendations of a Departmental
Promotion Committee, implementation of the recommendations of the
Departmental Promotion Committees, ad hoc promotions, period of
validity of panels etc. etc. The Office Memorandum dated 30.12.1976,
therefore, is in the nature of a complete code with regard to the topics
dealt with by it. Unless there is anything in the Rules made under the
proviso to article 309 of the Constitution of India, which is repugnant to
the instructions contained in the Office Memorandum, the Office
Memorandum which is apparently issued under article 73 of the
Constitution of India is entitle to be treated as valid and binding on all
concerned. In the instant case the Rules do not contain any of these
details except indicating who are all the persons who constitute the
Departmental Promotion Committee. We do not, therefore, find any
repugnance between the Rules and the Office Memorandum. In the
circumstances we feel that the plea raised by the 1st respondent in is
additional affidavit dated 13th May, 1988 (page 132 of the Paper Book)
that the Office Memorandum is ineffective cannot be upheld. We do not
agree with the decision of the Central Administrative Tribunal that in the
instant case the proceedings of the Departmental Promotion Committee
on 7.8.1986 have been vitiated " solely on account of this reason viz.,
that secretary, Ministry of Defence, one of its members was not
present". We hold that the proceedings, of the Departmental Promotion
Committee at is meeting held on 7.8.1986 are not invalid for the above
reason.
ii. Paras 27, 28 and 29 of the Hon'ble Apex Court
Judgment reported in (2022) 12 SCC 1 titled as SK. Nausad
Rahaman and ors. Vs. Union of India and ors:-
"27. The above principle was cited with approval
in Union of India v. SL Abbas25 where the Court held that transfer is an
incident of service:
"7. Who should be transferred where, is a matter for the
appropriate authority to decide. Unless the order of transfer is vitiated
by mala fides or is made in violation of any statutory provisions, the
court cannot interfere with it. While ordering the transfer, there is no
doubt, the authority must keep in mind the guidelines issued by the
Government on the subject. Similarly if a person makes any
representation with respect to his transfer, the appropriate authority
must consider the same having regard to the exigencies of
administration. The guidelines say that as far as possible, husband and
wife must be posted at the same place. The said guideline however does
not confer upon the Government employee a legally enforceable right."
28. 28 Fourth, norms applicable to the recruitment
and conditions of service of officers belonging to the civil services can be
stipulated in:
(i) A law enacted by the competent legislature;
(ii) Rules made under the proviso to Article 309 of the Constitution; and
(iii) Executive instructions issued under Article 73 of the Constitution, in
the case of civil services under the Union and Article 162, in the case of
civil services under the States.
29. Fifth, where there is a conflict between executive
instructions and rules framed under Article 309, the rules must prevail.
In the event of a conflict between the rules framed under Article 309
and a law made by the appropriate legislature, the law prevails. Where
the rules are skeletal or in a situation when there is a gap in the rules,
executive instructions can supplement what is stated in the rules."
iii. On the point that Special Rules override General
Rules, learned Sr. counsel appearing for the appellant referred to
the relevant part of the Hon'ble Apex Court Judgment reported in
(1992) 1 SCC 335 titled as R.S. Raghunath and State of
Karnataka and anr:-
" It may be noted that Sub-Rule 3(2) with which we
are mainly concerned was inserted in the year 1982. Shri Chidam-
baram strongly relying on the non-obstante clause in Rule 3(2) with
which this Sub-Rule begins, contended that this general rule dearly
supersedes the special law and there- fore, according to him, the
Tribunal was right in holding that the promotion to the post of Deputy
Commissioner of Transport could be only on the basis of seniority-cum-
merit. It is true that a simple reading of Rule 3(2) appears to lay down
that notwithstanding anything contained in the General Rules or in the
Special Rules, the promotion to the post of a Head or Additional Head of
a Department only shall be by selection and that the promotion to all
other posts shall be on the basis Of seniority- cum-merit. This clause (b)
of Sub-Rule (2) is in general terms and as already noted the General
Rules indicate that they regulate general recruit- ment to all the
Karnataka State Civil Services broadly. It is not in dispute that just like
the Special Rules providing for recruitment of the Transport Department
there are such special rules in respect of many other departments also.
It is therefore clear that while General Rules broadly indicate that they
regulate general recruitment including promotion to all the State Civil
Services but at the same time each Department has its own Special
Rules of recruitment and they are co-existing. Such Special Rules of
recruitment for the Motor Vehicles Department are not repealed by any
provision of the General Rules which are later in point of time. As a
matter of fact Rule 21 which provides for repeal does not in any manner
indicate that any of the Special Rules stood repealed. It is in this
background that we have to consider the interpretation of non-obstante
clause in Rule 3(2) of the General Rules."
In terms of the above argument, learned Sr.
counsel argued that the Judgment and Order as passed by the
learned Single Judge is bad in law and liable to be quashed.
5. Heard and perused the evidence on record.
6. Learned Sr. counsel appearing for the appellant
herein has contended that if there is a conflict between
Recruitment Rules framed under Article 309 of the Constitution of
India read with Section 29 of the Indian Boilers Act, 1923 and the
Rule framed under Article 162 of the Constitution of India, the
Statutory Rule will override the Rule framed under Article 162 of
the Constitution of India. Learned Sr. counsel indicated that these
are some administrative instructions issued which have no
statutory force of law and cannot have an overriding effect over
the Act. On the other hand, he also contended that the case of the
petitioner is governed under the Special Rules and there cannot be
any conflict.
7. To properly appreciate the fact of the case in hand,
we may extract herein Articles 309, 162 of the Constitution of
India:-
"309. Recruitment and conditions of service of persons serving
the Union or a State.- Subject to the provisions of this Constitution, Acts of the
appropriate Legislature may regulate the recruitment, and conditions of service of
persons appointed, to public services and posts in connections with the affairs of the
Union or of any State:
Provided that it shall be competent for the President or such person as
he may direct in the case of service and posts in connection with the affairs of the
Union, and for the Governor of State or such person as he may direct in the case of
services and posts in connection with the affairs of the State, to make rules regulating
the recruitment, and the conditions of service of persons appointed, to such services
and posts until provision in that behalf is made by or under an Act of the appropriate
Legislature under the article, and any Rules so made shall shave effect subject to the
provisions of any such Act."
162. Extent of executive power of State Subject to the provisions of
this Constitution, the executive power of a State shall extend to the matters with
respect to which the Legislature of the State has power to make laws.
Provided that in any matter with respect to which the Legislature of a
State and Parliament have power to make laws, the executive power of the State shall
be subject to, and limited by, the executive power expressly conferred by the
Constitution or by any law made by Parliament upon the Union or authorities thereof
Council of Ministers."
8. We may also produce the Recruitment Rules
regulating the method of recruitment to the post of Head
Computor in the Tripura Government press under the G.A.(Printing
& Stationery) Department, Government of Tripura:-
"Government of Tripura
G.A.(Printing & Stationery) Department
No.F.1(1)-TBP/Cabinet/2007/Part-IV/3131 dated Agartala, the 17th June,
Notification
In exercise of the power conferred by the proviso to article 309 of
the Constitution of the India read with Section 29 of the Indian Boilers Act,
1923, the Governor of Tripura in consultation with the Tripura Public Service
Commission is hereby pleased to make the following rules regulating the
method of recruitment to the post of Head Computor in the Tripura
Government Press under the G.A.(Printing & Stationary), Department,
Government of Tripura, namely:-
1. Short title and commencement:-
a) These rules may be called "Recruitment Rules, 2014" for the post of Head
Computor in the Tripura Government Press Under the G.A.(Printing &
Stationery) Department.
b) They shall come into force on the date of their publication in the Official
Gazatee.
2. The name of the post(s) shall be specified in Column-1 of schedule annexed
hereto.
3. Number, classification and scale of pay:-
The number of the said post, its classification and the scale of pay
attached thereto shall be as specified in Column 2 to 4 of the Schedule annexed
hereto.
4. Method of recruitment, age limit, qualification, etc.
The method of recruitment to the said post, age limit, qualification and
other matters relating to the said post shall be a specified in columns 5 to 13 of
the said schedule.
5. Disqualification- No Person.
a) Who has entered into or contracted a marriage with a person having
spouse living
OR
b) Who having a spouse living, has entered into a contracted a marriage
with persons, shall be eligible for appointment to the said post.
Provided that the State Government may, if satisfied that such marriage
is permission under the personal law applicable to such person and the other
party to the marriage and that there are other grounds for so doing exempt
any persons from the operation of this rules.
6. Power to relax:-
Where the State Government is of the opinion that it is necessary or
expedient to do so, it may, by order, for reasons to be recorded in writing and
in consultation with the Tripura Public Service Commission, may relax any of
this provisions of these rules with respect to any class or category of persons.
7. Saving:
Nothing in these rules shall effect reservations, relaxation of age limit and
other concessions required to be provided for the Scheduled Castes, the
Scheduled Tribes, Ex-Servicemen and to other special categories of persons in
accordance with the orders issued by the State Government from time to time
in this regard.
8. Interpretation
If any question arises relating to the interpretation of these rules, it shall
be referred to G.A.(Printing & Stationery) Department, Government of Tripura,
whose decision thereon shall be final."
9. The relevant part of the notification dated
22.06.2021 of GA(P&T) Department, Government of Tripura which
is also known as the Promotion Policy of 2021 is also produced
here-in-under:-
""8. It has also been decided by the Government to allow such
appointment on ad hoc promotion as one time measure, following the
below mentioned conditions:-
(i) Appointment on Promotion may be allowed purely on ad-hoc basis
subject to final outcome of the SLP pending before the Hon'ble Supreme
Court of India.
(ii) Ad-hoc appointment on promotion shall be considered keeping in view
of the latest available seniority list of the feeder post/ grade subject to
condition that he/she is otherwise suitable & eligible for promotion.
(iii) No inter-se seniority list shall be determined/ published in respect of
these ad-hoc promotions.
(iv) Benefit of the ad-hoc appointment on promotion shall be available to
accommodate a candidate to the immediate next higher promotion post/
grade only and such benefit shall not be considered to accommodate the
said candidate to multiple higher posts/ grade with prospective effect.
(v) To create supernumerary posts, administrative Department shall assess
the number of posts to be created to materialize the promotion as per
above procedure and inform the total number of posts so determined to
Finance Department. No, further concurrence of Finance Department is
required.
(vi) This ad-hoc appointment on promotion shall not be treated as regular
appointment on promotion.
(vii) The ad-hoc appointment on promotion as per guidelines illustrated
above shall be started in the highest grade of a cadre/ service first. Due to
such promotion, the resultant vacancies shall be added with the vacancies
in the lower grade, and to be filled up subsequently.
(viii) Regular DPC may be held based on the existing seniority list.
However, while issuing the orders it should be stipulated that these
promotions are provisional and subject to the final outcome of the S.L.P
pending before the Hon'ble Supreme Court of India. Subsequently, when
the directions become available, a review DPC may be held and the
necessary adjustments be made in the promotions of officers based upon
the revised seniority list. In case any of the officers/ candidate appointed
on ad-hoc promotion do not figure in the list approved by the review DPC
they may be reverted to the posts held by them earlier.
9. As the persons to be appointed on ad-hoc basis subject to final verdict if
the Hon'ble Supreme Court in SLP(C) No.19765-19767 of 2015 are likely to
hold such ad-hoc promotion posts for a period of more than 1(one) year,
consultation with the TPSC is required, wherever the same is necessary,
following the provisions of the TPSC (Exemption form Consultation)
Regulations, 1973.
10. Relevant portion of the conditions as mentioned in Para-8 above shall
invariably be incorporated while issuing the promotion order/ notification
for appointment on ad-hoc promotion."
10. The guidelines framed by the Government of Tripura
GA (P&T) Department dated 22.06.2021 for granting ad hoc
promotion, in particular para-8(iv) makes it clear that the benefit
of the ad hoc appointment on promotion shall be available to
accommodate a candidate to the immediate next higher promotion
post/grade only and such benefit shall not be considered to
accommodate the said candidate to multiple higher posts/ grade
with prospective effect. The appellant has accepted joining the post
of Senior Computor upon issuance of the order of promotion dated
16.02.2022. As per the Recruitment Rules extracted hereinabove
5(five) years experience in the post of Sr. Computor is required for
promotion to the post of Head Computor and failing which it would
be filled up from the post of Computor having 10(ten) years
experience in the grade. The appellant though contends that the
post of Head Computor was vacant since 2017 and they were
eligible in terms of requisites seniority and experience, he have
approached this Court only after acceptance of the promotion to
the next higher post of Senior Computer. Under the Promotion
Policy, 2021 multiple promotions in such a manner is not
permissible. More so, when the appellant has to complete the
minimum number of years in the next higher grade of Senior
Computor to be eligible to be promoted to the post of Head
Computor.
11. Here the point advanced and emphasized by the
learned Sr. counsel appearing for the appellant which fall for
consideration before this Court is that, if there is any conflict in
following the Rules while considering the case of the appellant in
terms of promotion is concerned.
12. As cited supra originally, the appellant was appointed
in the post of Computor and thereafter he was granted promotion
to Senior Computor. This kind of arrangement in creating a post of
Senior Computor through General Rules is only the creation of a
post in between and this does not amount to conflict between both
the Rules. There is no inconsistency or any overriding effect of one
statute over the other and there is no administrative instruction to
say that it is having the overriding effect on the statute.
13. In this present case, this Court is of the opinion that
there is no conflict between the Recruitment Rules framed under
Article 309 of the Constitution of India read with Section 29 of the
Indian Boilers Act, 1923, and Administrative Instruction, issued in
exercise of the powers, conferred under Article 162 of the
Constitution of India. As such, this present appeal is devoid of
merits and liable to be dismissed.
14. Accordingly, the Judgment and Order of the Hon'ble
learned Single Judge dated 05.07.2023 passed in WP(C) No.318 of
2022 is confirmed and the instant appeal stands dismissed.
15. As a sequel, stay if any stands vacated. Pending
application(s), if any also stands closed.
JUDGE JUDGE
suhanjit
RAJKUMAR Digitally
RAJKUMAR
signed by
SUHANJIT SUHANJIT SINGHA
Date: 2023.10.07
SINGHA 14:56:02 +05'30'
