Tripura High Court
Bijay Debray vs Tripura University on 29 July, 2024
Page 1 of 12
HIGH COURT OF TRIPURA
AGARTALA
WP(C) No.41 of 2024
Bijay Debray,
Son of Late Kartik Chandra Debray, resident of A.D. Nagar, Road No.5 (near
Shani Mandir), PO & PS A.D. Nagar, District West Tripura, Pin 799003, Age
58 years.
...... Petitioner(s)
VERSUS
1. Tripura University,
Represented by its Registrar, having his office at Suryamaninagar, PO
Suryamaninagar, PS Amtali, Agartala, District West Tripura, Pin
799022.
2. The Registrar, Tripura University,
Having his office at Suryamaninagar, PO Suryamaninagar, PS Amtali,
Agartala, District West Tripura, Pin 799022.
...... Respondent(s)
WP(C) No.42 of 2024
Sima Dasgupta,
Wife of Sri Samar Chakraborty, resident of Jogendranagar (near Agradut
Club), PO Jogendranagar, PS East Agartala, District West Tripura, Pin
799004, Age 57 years.
...... Petitioner(s)
VERSUS
1. Tripura University,
Represented by its Registrar, having his office at Suryamaninagar, PO
Suryamaninagar, PS Amtali, Agartala, District West Tripura, Pin
799022.
2. The Registrar, Tripura University,
Having his office at Suryamaninagar, PO Suryamaninagar, PS Amtali,
Agartala, District West Tripura, Pin 799022.
...... Respondent(s)
For Appellant(s) : Mr. P. Roy Barman, Senior Advocate.
Mr. Koomar Chakraborty, Advocate.
For Respondent(s) : Mr. D. Bhattacharya, Senior Advocate.
Mr. S. Saha, Advocate.
Date of hearing & delivery
of judgment : 29th July, 2024.
YES NO
Whether fit for reporting : √
Page 2 of 12
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
HON'BLE MR. JUSTICE S.D. PURKAYASTHA
JUDGMENT & ORDER (ORAL)
We have heard Mr. P. Roy Barman, learned senior counsel assisted
by Mr. Koomar Chakraborty, learned counsel for the petitioners and also Mr.
D. Bhattacharya, learned senior counsel for the respondents.
[2] Common issues being involved, both the writ petitions are heard
together and are being disposed of by this common judgment.
[3] In WP(C) No.41 of 2024, petitioner, Bijay Debray was initially
joined as „Jr. Assistant‟ in Tripura University w.e.f. 26.08.2002 and thereafter,
on promotion he joined to the post of „Assistant‟ w.e.f. 16.12.2015. His next
promotional post is Section Officer and according to the petitioner, 3(three)
posts of such Section Officer have been lying vacant but no step for filling up
such promotional post was taken by the respondents, though the petitioner
became eligible for such promotion w.e.f. 16.12.2020 on completion of his 5
years of service in the feeder post of Assistant. Meanwhile, repealing the
previous Recruitment Rules namely, Tripura University Cadre Recruitment
Rules (Non-Teaching Employees), 2011 (for short- Recruitment Rules of 2011)
which was in force when he became eligible for such promotion, another
Recruitment Rules namely, Central University Non-Teaching & Other
Academic Posts Recruitment Rules, 2023 (for short-Recruitment Rules of
2023) was brought into force w.e.f. 02.06.2023 by way of issuing notification.
[4] According to this petitioner, as per Recruitment Rules of 2011,
50% post of Section Officer was provided to be filled up through promotion
based on seniority-cum-fitness from the feeder posts of Assistants having 5
years continuous regular service but now the Recruitment Rules of 2023
modifies said Rule by making provision that 75% of such promotional post will
be filled up from the cadre of Assistant subject to qualifying the departmental
test, failing which by deputation. It has also been further provided that for such
promotion, 5 years of regular service in the feeder grade of Assistant in Level 6
will be required subject to seniority-cum-fitness and also that the employee
concerned should have the academic qualification as provided for direct
recruitment in the said Recruitment Rules of 2023.
[5] In WP(C) No.42 of 2024, the petitioner Sima Dasgupta initially
joined as Stenographer (Jr.) in the University w.e.f. 04.08.1998 and later on her
service was also confirmed vide Memorandum dated 09.02.2000. Thereafter,
on promotion, she joined to the post of Personal Assistant on 05.08.2015 and
now she has become eligible for promotion to the post of Private Secretary
w.e.f. 05.08.2020 after completion of 5 years of service in the feeder post, but
no exercise of such promotion was taken up by the respondents despite there
was vacancy. This petitioner also expresses similar grievance that as per
Recruitment Rules of 2011, 75% of such post of Private Secretary would be
filled up from amongst the Personal Assistant having 5 years regular service in
the grade pay of Rs.4200/- through seniority-cum-fitness but now as per
Recruitment Rules of 2023, in case of promotion to said post, the eligibility
criteria is 5 years regular service in Level 6 in the feeder post of Personal
Assistant and promotion will be on seniority-cum-fitness basis subject to
qualifying the stenography test as mentioned in Column No.7 of the relevant
chapter of the Rules of 2023 i.e. in case of English, stenography speed should
be 120 w.p.m and in case of Hindi, it would be 100 w.p.m. According to this
petitioner, post of Personal Assistant (feeder post) is filled up from the person
who has extra ordinary expertise in stenography and typing and despite the
same, compelling a Personal Assistant to undergo such stenography test again
for promotion, is totally arbitrary.
[6] Mr. P. Roy Barman, learned senior counsel of the petitioners also
similarly argues that such inclusion of departmental examination or
stenography test is totally arbitrary, irrational and illegal and the petitioners
cannot be forced to undergo such test or examination for their promotion to the
next higher level. According to Mr. Roy Barman, learned senior counsel, when
the vacancy arose, at that time Recruitment Rules of 2011 was in force and it
was the duty of the respondents to take necessary steps for filling up those posts
which were not done and therefore, they cannot now take advantage of their
own mistake by compelling the petitioners or similarly situated persons to
undergo such tests as a condition precedent for such promotion by applying
new Recruitment Rules of 2023. They should, Mr. Roy Barman submits, be
guided by the Recruitment Rules of 2011. The next point of argument as
advanced from the side of petitioners is that as per the provisions of statute no.
24(2) and Section 31(1)(p) of the Tripura University Act, 2006, it is not within
the domain of the University to frame such Recruitment Rules by way of
passing regulation and same can only be done by issuing ordinances. Referring
to Statute 41(1)(ii), it is also argued that such regulation can be issued only
when the Act, statutes or any ordinance issued under the Act permits the same
to be issued. For better understanding and ready references, all the above said
provisions are excerpted below:
Section 31.(1) Subject to the provisions of this Act and the
Statutes, the Ordinances may provide for all or any of the
following matters, namely:-
..........................................................
................................................
(p) all other matters which by this Act or the Statutes, are to
be or may be, provided for by the Ordinances.
Statute 24.(1) All the employees of the University, other than the
teachers and other academic staff shall, in the absence of any
contract to the contrary, be governed by the terms and conditions
of service and code of conduct as are specified in the Statutes, the
Ordinances and the Regulations.
(2) The manner of appointment and emoluments of
employees, other than the teachers and other academic staff,
shall be such as may be prescribed by the Ordinances.
Statute 41.(1) The authorities of the University may make
Regulations consistent with the Act, the Statutes and the
Ordinances for the following matters, namely:-
..........................................................
(ii) providing for all matters which are required by the Act,
the Statutes or the Ordinances to be prescribed by
Regulations;
..........................................................
[7] Mr. D. Bhattacharya, learned senior counsel, for the respondents
on the other hand, argues that the above said Recruitment Rules of 2023 was
not framed by the University whimsically or arbitrarily, rather it was so done as
per the direction of the UGC. Reference has also been made by Mr.
Bhattacharya, to a letter dated 14.08.2015 (Annexure-1 of counter affidavit to
both the writ petitions) by which the UGC communicated to the Registrars of
all Central Universities urging for revision of guidelines for
framing/amendment/relaxation of Recruitment Rules referring to letters dated
31.12.2010 and 31.03.2015 issued by the Ministry of Personnel, PG &
Pensions, Department of Personnel & Training, Government of India, New
Delhi to follow the guidelines/instructions for various posts while
framing/amendment of Recruitment Rules and it was also informed that the
"interview" clause should not be added by any University at its own level if it is
not prescribed by DOPT in its Model Recruitment Rules. Similar letter, Mr.
Bhattacherjee, Ld. Sr. Counsel refers, was again repeated by another
communication dated 24.01.2016 (Annexure-2 of counter affidavit to both the
writ petitions) by UGC addressed to the Registrars of Central Universities. Mr.
Bhattacharya, learned senior counsel also makes reference to another letter
under Annexure-3 of the counter affidavit to both the writ petitions which was
communicated by the Registrar of Tripura University to UGC on 04.07.2017
sending the draft Cadre Recruitment Rules (CRRs) in respect of non-teaching
posts, to UGC for approval with necessary modification/alteration if so
required. In the said letter, reference was made to another letter of UGC dated
30.03.2017 whereby it was advised by the UGC that proposal for sanction of
new non-teaching posts would be considered only after receipt of the copy of
the revised Cadre Recruitment Rules of non-teaching posts as per prescribed
format of DoPT, Govt. of India as circulated by UGC through their letter dated
14.08.2015.
[8] Mr. Bhattacharya, learned senior counsel finally argues that the
University framed the new Recruitment Rules of 2023 only as per guidelines of
UGC and Department of Personnel and Training, Government of India. He
further contends that mere being eligible for promotion does not create any
vested right to any employee to get the promotion. According to him, when
Recruitment Rules of 2011 was already made inoperable, the petitioners cannot
claim promotion on the basis of old Rules of 2011.
[9] We have given our thoughtful consideration regarding the
contention and counter contention of both the parties.
[10] So far, the point raised from the side of the petitioners that
University cannot frame any Recruitment Rules unless an ordinance is issued
by the University in this regard permitting the same to do so, is concerned, such
argument is not only technical but self-defeating. The Recruitment Rules of
2011 was framed by the University in exercise of the powers conferred under
the Statute 24(2) and Statute 41(1)(ii) as evident from the Recruitment Rules of
2011 itself. Now, if such argument of the petitioners is accepted, same will
render the Recruitment Rules of 2011 itself invalid, rendering even the claim of
the petitioners for their promotion through that Rule, totally unsustainable.
Power of framing Recruitment Rules by the University for its teaching and non-
teaching staff is already provided in Statute 24 as indicated above and it does
not anyway nullify the authority of the University to frame such rules if a
specific ordinance is not issued in its strict sense. Therefore, such point as
raised from the side of the petitioners is not accepted.
[11] Next point of argument of the petitioners is that the vacancy falls
when Recruitment Rules of 2011 was in force and therefore, promotional
exercise should be done as per said old Rules. In this regard, the law has been
already made settled by the Hon‟ble Supreme Court in a 3-Judge Bench
decision in State of Himachal Pradesh and others vs. Raj Kumar and others,
(2023) 3 SCC 773. In that case, there were 5 posts of Labour Officers in
Himachal Pradesh and those were to be filled by promotion from Factory
Inspectors, Labour Inspectors, and Sectt. Superintendents being the feeder
category and subsequently, 7 more additional posts for Labour Officers were
created and sanctioned vide letter of Secretary, Labour and Employment
Department dated 20.07.2006 and as such total posts for Labour Officers
increased from 5 to 12. During that period, respondents No.1 to 3 of that case
were working as Labour Inspectors in the service of the State. Thereafter,
within 6 months of creation of such new posts, the original recruitment Rules
viz Himachal Pradesh Recruitment and Promotion Rules, 1966 was amended
on 25.11.2006. The new Rules of 2006 provided that recruitment to the post of
Labour Officer was to be made by promotion as well as direct recruitment in
the ratio of 75% and 25% respectively. The effect of the new Rules
accompanying with 7 new posts of Labour Officers was that out of 12 posts of
Labour Officers, the promotional posts increased from 5 to 9 (being 75%) and
direct recruitment posts came to 3(being 25%). The respondents No.1 to 3
approached the Administrative Tribunal challenging the action of the State
Government in filling up 25% posts of Labour Officers by direct recruitment
and contended that the vacancies arose in July, 2006 which was before the new
Rules came into effect and therefore all the vacancies ought to have been filled
up only by promotion. Finally matter went to the Apex Court and after
discussing many other decisions of the Apex Court in this regard, the Court
held as follows:
"Analysis
82. A review of the fifteen cases that have distinguished Rangaiah
would demonstrate that this Court has been consistently carving out
exceptions to the broad proposition formulated in Rangaiah. The
findings in these judgments, that have a direct bearing on the
proposition formulated by Rangaiah are as under:
82.1. There is no rule of universal application that vacancies
must be necessarily filled on the basis of the law which existed
on the date when they arose, Rangaiah case must be understood
in the context of the rules involved therein.
82.2. It is now a settled proposition of law that a candidate has
a right to be considered in the light of the existed rules, which
implies the "rule in force" as on the date consideration takes
place. The right to be considered for promotion occurs on the
date of consideration of the eligible candidates.
82.3. The Government is entitled to take a conscious policy
decision not to fill up the vacancies arising prior to the amendment
of the rules. The employee does not acquire any vested right to
being considered for promotion in accordance with the repealed
rules in view of the policy decision taken by the Government. There
is no obligation for the Government to make appointments as per
the old Rules in the event of restructuring of the cadre is intended
for efficient working of the unit. The only requirement is that the
policy decisions of the Government must be fair and reasonable
and must be justified on the touchstone of Article 14.
82.4. The principle in Rangaiah need not be applied merely
because posts were created, as it is not obligatory for the appointing
authority to fill up the posts immediately.
82.5. When there is no statutory duty cast upon the State to
consider appointments to vacancies that existed prior to the
amendment, the State cannot be directed to consider the cases.
83. The above-referred observations made in the fifteen decisions
that have distinguished Rangaiah case demonstrate that the wide
principle enunciated therein is substantially watered-down. Almost
all the decisions that distinguished Rangaiah hold that there is no
rule of universal application to the effect that vacancies must
necessarily be filled on the basis of law that existed on the date
when they arose. This only implies that decision in Rangaiah is
confined to the facts of that case.
84. The decision in Deepak Agarwal is a complete departure from
the principle in Rangaiah inasmuch as the Court has held that a
candidate has a right to be considered in the light of the existing
rule. That is the rule in force on the date the consideration takes
place. This enunciation is followed in many subsequent decisions
including that of Union of India v. Krishna Kumar. In fact, in
Krishna Kumar Court held that there is only a "right to be
considered for promotion in accordance with rules which prevail
on the date on which consideration for promotion take place."
85. The consistent findings in these fifteen decisions that Rangaiah
case must be seen in the context of its own facts, coupled with the
declarations therein that there is no rule of universal application to
the effect that vacancies must necessarily be filled on the basis of
rules which existed on the date on which they arose, compels us to
conclude that the decision in Rangaiah is impliedly overruled.
However, as there is no declaration of law to this effect, it
continues to be cited as a precedent and this Court has been
distinguishing it on some ground or the other, as we have indicated
hereinabove. For clarity and certainty, it is, therefore, necessary for
us to hold;
85.1. The statement in Y.V. Rangaiah v. J. Sreenivasa Rao that,
"the vacancies which occurred prior to the amended Rules would
be governed by the old Rules and not by the amended Rules",
does not reflect the correct proposition of law governing
services under the Union and the States under Part XIV of the
Constitution. It is hereby overruled.
85.2. The rights and obligations of persons serving the Union and
the States are to be sourced from the rules governing the services."
By the said decision, the earlier judgment passed by the Apex
Court in the case of Y.V. Rangaiah vs. J. Sreenivasa Rao (1983) 3 SCC 284,
was overruled.
[12] As held by Hon‟ble Supreme Court that the principle that the
vacancies which occurred prior to the amended Rules would be governed by the
old Rules and not by the amended Rules, does not reflect the correct
proposition of law, the basic claim of the petitioners to be governed by the old
Rules of 2011 becomes unsustainable. It is now settled that a candidate can be
considered for promotion in terms of the Rules as existent on the date when the
consideration for such promotion takes place.
[13] That apart, nothing could be shown from the side of petitioners
that by implementation of Recruitment Rules of 2023, the promotional avenues
of the petitioners would be foreclosed forever warranting for judicial
interference. Inclusion of certain conditions like passing of departmental
examination or stenography test in the subsequent rules cannot be considered to
be an attempt made by the employer to shut down the prospect of career
advancement of its employee to render it arbitrary and illegal in violation of
Article 14 and 16 of the Constitution. Scope of judicial interference is also
limited in such policy matter of the employer regarding promotion. Reliance is
placed on para 10 of the case of P.U. Joshi & Ors. Vs. Accountant General,
Ahmedabad & Ors., reported in (2003) 2 SCC 632 which is extracted
hereunder:
"10. We have carefully considered the submissions made on
behalf of both parties. Questions relating to the constitution,
pattern, nomenclature of posts, cadres, categories, their
creation/abolition, prescription of qualifications and other
conditions of service including avenues of promotions and
criteria to be fulfilled for such promotions pertain to the field
of policy is within the exclusive discretion and jurisdiction of
the State, subject, of course, to the limitations or restrictions
envisaged in the Constitution of India and it is not for the
statutory tribunals, at any rate, to direct the Government to
have a particular method of recruitment or eligibility criteria or
avenues of promotion or impose itself by substituting its views
for that of the State. Similarly, it is well open and within the
competency of the State to change the rules relating to a
service and alter or amend and vary by addition/substraction
the qualifications, eligibility criteria and other conditions of
service including avenues of promotion, from time to time, as
the administrative exigencies may need or necessitate.
Likewise, the State by appropriate rules is entitled to
amalgamate departments or bifurcate departments into more
and constitute different categories of posts or cadres by
undertaking further classification, bifurcation or amalgamation
as well as reconstitute and restructure the pattern and
cadres/categories of service, as may be required from time to
time by abolishing the existing cadres/posts and creating new
cadres/posts. There is no right in any employee of the State to
claim that rules governing conditions of his service should be
forever the same as the one when he entered service for all
purposes and except for ensuring or safeguarding rights or
benefits already earned, acquired or accrued at a particular
point of time, a government servant has no right to challenge
the authority of the State to amend, alter and bring into force
new rules relating to even an existing service."
[14] Relevantly, reliance can be made on another 3-Judge Bench
decision of Apex Court in Ravikumar Dhansukhlal Maheta and another vs.
High Court of Gujarat and others, 2024 SCC Online SC 972 wherein at Para
81 the followings were observed by the Court:
"81. However, in India, no government servant can claim
promotion as their right because the Constitution does not prescribe
criteria for filling seats in promotional posts. The Legislature or the
executive may decide the method for filling vacancies to
promotional posts based on the nature of employment and the
functions that the candidate will be expected to discharge. The
courts cannot sit in review to decide whether the policy adopted
for promotion is suited to select the 'best candidates', unless on
the limited ground where it violates the principle of equal
opportunity under Article 16 of the Constitution."
[15] In view of the above, there is no merit in both the writ petitions
and accordingly, both are dismissed.
Pending application(s), if any, shall stand disposed of.
(S.D. PURKAYASTHA), J (APARESH KUMAR SINGH), CJ
Rudradeep SATABDI DUTTA Digitally signed by SATABDI DUTTA
Date: 2024.08.16 15:36:50 +05'30'
