Tripura High Court
Sri Basanta Sen vs State Of Tripura on 6 March, 2024
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
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HIGH COURT OF TRIPURA
AGARTALA
WA NO.180 OF 2022
Sri Basanta Sen,
Son of Late Priyanbandhu Sen,
Resident of village-Ramnagar Road No.8,
Nivedita Palli, P.O.- Agartala, P.S.- West Agartala,
Sub-Division-Agartala, District-West Tripura, Pin-799002.
......Petitioner-Appellant(s)
Versus
1. State of Tripura,
Represented by the Secretary & Commission to the Department
of Finance, Government of Tripura, Having his office at New
Secretariat Complex, Gurkhabasti, Agartala, P.O. Kunjaban,
P.S.- New Capital Complex, Sub Division-Sadar, District-West
Tripura.
2. The Secretary & Commissioner,
Department of Finance, Government of Tripura, Having his office
at New Secretariat Complex, Gurkhabasti, Agartala, P.O-
Kunjaban, P.S.- New Capital Complex, Sub-Division-Sadar,
District-West Tripura.
3. The Secretary & Commissioner,
Panchayet Department, Government of Tripura, having its office
at New Secretariat Complex, Gurkhabasti Agartala, P.O.-
Kunjaban, P.S.- New Capital Complex, Sub-Division Sadar,
District-West Tripura.
.......Respondent(s)
For the Appellant(s) : Mr. Somik Deb, Sr. Advocate.
Ms. A. Chakraborty, Advocate.
For the Respondent(s) : Mr. D. Sharma, Addl. G.A.
Date of hearing : 26.02.2024.
Date of delivery of
Judgment & Order : 06/03/2024
Whether fit for reporting : YES.
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HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE BISWAJIT PALIT
JUDGMENT & ORDER
(T. AMARNATH GOUD,J)
This present Writ Appeal has been filed, under Rule 2 of
Chapter V-A of the Gauhati High Court Rules, read with Article 226
of the Constitution of India, against the impugned Order dated
01.08.2022, passed in W.P.(C) No. 634 of 2021, whereby the
Hon'ble Single Judge has dismissed the writ petition.
2. The brief fact of the case is that, the petitioner-appellant
was issued with an Offer of Appointment for the post of the
Panchayat Extension Officer, Panchayat Department, Government of
Tripura, vide letter of appointment bearing reference No.F(1-2)-
Esstt/PR/79(Vol-II)/8315-28 dated 14.09.1989 on an AD-HOC
basis. After completion of uninterrupted and satisfactory service for
28 years on AD-HOC basis, the petitioner-appellant on attaining the
age of superannuation proceeded on retirement on 31.08.2017.
Thereafter, the petitioner-appellant inter alia prayed for his
regularization, along with pensionary benefits and pensions. The
petitioner-appellant also submitted several representations before
the appropriate authority, but the same did not fetch any fruitful
results. Thereafter, the petitioner-appellant instituted a writ
petition, marked as WP(C) No.602 of 2019, before this Hon'ble High
Court, and by a Judgment & Order dated 11.07.2019. The same
was allowed in favour of the petitioner-appellant, yet no
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implementation was carried out by the respondents. On
14.08.2020, the respondent authority passed an impugned Order
against in consideration for the regularization of service of the
petitioner-appellant. Aggrieved thereby, a writ petition, marked as
WP(C) No.634 of 2021, was filed by the petitioner-appellant.
Hon'ble Single Bench of this Court vide Order dated 01.08.2022
dismissing the said writ petition.
3. Being aggrieved by and dissatisfied with the impugned
Judgment and Order dated 01.08.2022, this present writ appeal
seeking the following reliefs has been filed:-
"i) Admit this Writ Appeal;
ii) Call for the relevant records, pertaining to the impugned
Order dated 01.08.2022 (Annexure-4 supra), passed in WP(C)
No. 634 of 2021;
iii) After hearing the parties, in terms of the GROUNDS set forth
above, be pleased to quash/set aside the impugned Order dated
01.08.2022 (Annexure-4 supra), passed in WP(C) No. 634 of
2021, and thereafter, allow this Writ Appeal, thereby directing
the respondents to forthwith accord the benefit of regularization
in service, from the date of his initial appointment, and
thereupon, grant Pension alongwith arrears thereof, Gratuity,
Death-cum-Retirement Gratuity, Provident Fund, leave
encashment and all other pensioner benefits, etc. alongwith
Penal Interest thereof, in favour of the appellant;
iv) And pass any other Order(s) as may be deemed fit and
proper for ends of justice.
4. Heard Mr. Somik Deb, learned Sr. counsel assisted
by Ms. A. Chakraborty, learned counsel appearing for the petitioner-
appellant as well as Mr. D. Sharma, learned Addl. G.A. appearing
for the respondents.
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5. Mr. Somik Deb, learned Sr. counsel appearing for
the petitioner-appellant submits that because of the long pending
service of 28 years, his client is entitled to regularisation.
To support his argument, learned Sr. counsel
referred to Para-15 of the Hon'ble Constitutional Bench Judgment
of the Hon'ble Supreme Court reported in (2000) 8 SCC 25 titled
as Rudra Kumar Sain and ors., Vs. Union of India and ors. The
same is produced here-in-under:-
"15. So far as the terminology used in Singlas case,
namely ad hoc, fortuitous and stop-gap, the same is quite familiar in the
Service Jurisprudence. Mr. Rao, appearing for the High Court of Delhi,
however contended before us that the said terminology should be given
the same meaning, as was given in Parshotam Lal Dhingra vs. Union of
India, In Dhingras case, the Court was examining whether removal of an
employee can be held to be a penal and whether Article 311(2) of the
Constitution can at all be attracted and the Court also observed that
certain amount of confusion arises because of the indiscriminate use of
the words provisional, officiating and on probation. We do not think that
the concept or meaning given to those terminology in Dhingras case will
have any application to the case in hand, where the Court is trying to
work- out an equitable remedy in a manner which will not disentitle an
appointee, the benefit of his fairly long period of Service for the purpose
of seniority, even though he possesses the requisite qualification and
even though his appointment has been made after due consultation
and/or approval of the High Court.
16. The three terms ad hoc, stop gap and fortuitous are in frequent use in
service jurisprudence. In the absence of definition of these terms in the
rules in question we have to look to the dictionary meaning of the words
and the meaning commonly assigned to them in service matters. The
meaning given to the expression fortuitous in Strouds Judicial Dictionary
is accident or fortuitous casualty. This should obviously connote that if an
appointment is made accidentally, because of a particular emergent
situation and such appointment obviously would not continue for a fairly
long period. But an appointment made either under Rule 16 or 17 of the
Recruitment Rules, after due consultation with the High Court and the
appointee possesses the prescribed qualification for such appointment
provided in Rule 7 and continues as such for a fairly long period, then the
same cannot be held to fortuitous. In Blacks Law dictionary, the
expression fortuitous means occurring by chance, a fortuitous event may
be highly unfortunate. It thus, indicates that it occurs only by chance or
accident, which could not have been reasonably foreseen. The expression
ad hoc in Blacks Law Dictionary, means something which is formed for a
particular purpose. The expression stop-gap as per Oxford Dictionary,
means a temporary way of dealing with a problem or satisfying a need.
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17. In Oxford Dictionary, the word ad hoc means for a particular purpose;
specially. In the same Dictionary, the word fortuitous means happening
by accident or chance rather than design.
18. In P. Ramanatha Aiyers Law Lexicon (2nd Edition) the word ad hoc is
described as for particular purpose, Made, established, acting or
concerned with a particular and or purpose. The meaning of word
fortuitous event is given as an event which happens by a cause which we
cannot resist; one which is unforeseen and caused by superior force,
which it is impossible to resist; a term synonymous with Act of God.
19. The meaning to be assigned to these terms while interpreting
provisions of a Service Rule will depend on the provisions of that Rule and
the context in and the purpose for which the expressions are used. The
meaning of any of these terms in the context of computation of inter-se
seniority of officers holding cadre post will depend on the facts and
circumstances in which the appointment came to be made. For that
purpose it will be necessary to look into the purpose for which the post
was created and the nature of the appointment of the officer as stated in
the appointment order. If the appointment order itself indicates that the
post is created to meet a particular temporary contingency and for a
period specified in the order, then the appointment to such a post can be
aptly described as ad hoc or stop-gap. If a post is created to meet a
situation which has suddenly arisen on account of happening of some
event of a temporary nature then the appointment of such a post can
aptly be described as fortuitous in nature. If an appointment is made to
meet the contingency arising on account of delay in completing the
process of regular recruitment to the post due to any reason and it is not
possible to leave the post vacant till then, and to meet this contingency
an appointment is made then it can appropriately be called as a stop-gap
arrangement and appointment in the post as ad hoc appointment. It is
not possible to lay down any straight-jacket formula nor give an
exhaustive list of circumstances and situation in which such an
appointment (ad hoc, fortuitous or stop-gap) can be made. As such, this
discussion is not intended to enumerate the circumstances or situations in
which appointments of officers can be said to come within the scope of
any of these terms. It is only to indicate how the matter should be
approached while dealing with the question of inter se seniority of officers
in the cadre.
20. In the Service Jurisprudence, a person who possesses the requisite
qualification for being appointed to a particular post and then he is
appointed with the approval and consultation of the appropriate authority
and continues in the post for a fairly long period, then such appointment
cannot be held to be stop-gap or fortuitous or purely ad hoc. In this view
of the matter, the reasoning and basis on which, the appointment of the
promotees in the Delhi Higher Judicial Service in the case in hand was
held by the High Court to be fortuitous/ad hoc/stop-gap are wholly
erroneous and, therefore, exclusion of those appointees to have their
continuous length of service for seniority is erroneous."
Learned Sr. counsel further submits that this Court
on 09th February 2024 in WP(C) No.609 of 2023 dealt with a similar
kind of issue and allowed the writ petition. Learned Sr. counsel
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relied upon Para-26 of the said Judgment and the same is produced
here-in-under:-
"[26] For the laches of the respondents in not acted
upon to regularize the petitioner and allowing him to retire from services,
when the petitioner raised his voice for pensionary benefits, respondents
declined the request of the petitioner on the ground that his services were
not regularized and have no weightage, as the petitioner is not at fault but
it is the inaction of the respondents for sleeping over the matter all
through. Recently, Hon'ble Supreme Court in case No. Special Leave to
Appeal (C) No.1109/2022 (The State of Gujarat & others v. Talsibhai
Dhanjibhai Patel) affirming the order of the Hon'ble High Court of Gujarat
has held that after rendering service for 30 years, an employee cannot be
deprived of his pension. For the purpose of reference, the said order of the
Hon'ble Apex Court is quoted hereinunder:-
ORDER
It is unfortunate that the State continued to take the services of the
respondent as an ad-hoc for 30 years and thereafter now to contend that
as the services rendered by the respondent are ad-hoc, he is not entitled to
pension/pensionary benefit. The State cannot be permitted to take the
benefit of its own wrong. To take the Services continuously for 30 years
and thereafter to contend that an employee who has rendered 30 years
continues service shall not be eligible for pension is nothing but
unreasonable. As a welfare State, the State as such ought not to have
taken such a stand. In the present case, the High Court has not committed
any error in directing the State to pay pensionary benefits to the
respondent who has retired after rendering more than 30 years service.
Hence, the Special Leave Petition stands dismissed. Pending application(s),
if any, shall stand disposed of."
Stating thus, learned Sr. counsel urged this Court
to allow this writ appeal.
6. On the other hand, Mr. D. Sharma, learned Addl.
G.A. appearing for the State-respondent referred to the
appointment letter issued to the petitioner-appellant dated 14th
September, 1989 wherein it is stated that the appointment to the
post of Panchayet Extension Officer under this Department is made
purely on temporary and AD-HOC basis subject to confirmation by
the Tripura Public Service Commission on appearance of the
concerned incumbents to the Tripura Public Service Commission (for
short 'TPSC') for necessary examination on call. From the very first
day, it has been made clear that the petitioner-appellant has to
appear before TPSC for examination but the petitioner-appellant has
not appeared. The petitioner-appellant got the opportunity to
appear for examination before the TPSC but he did not appear. It is
the fault of the petitioner-appellant that he has not been given the
benefit of regularization, it is not the fault on the part of the State
or TPSC. Now after retirement, he cannot claim such benefit of
regularization.
7. In reply to the submission of the learned Addl.
G.A., Mr. Deb, learned Sr. counsel referred to a letter dated
19.06.1992 wherein the Government has taken a decision to
regularise the services of the petitioner-appellant and 2(two) others
with the approval of the Tripura Public Service Commission but the
Government did not take approval from the Commission. Thereafter
the petitioner-appellant was allowed to continue and after the
retirement of the petitioner-appellant, the respondent cannot say
that the petitioner-appellant has not gone to the Commission.
Learned Sr. counsel also stated that the petitioner-appellant cannot
go to the Commission on his own. A conscious decision is there is
Communication dated 19.06.1992 wherein it is stated that 'kindly
communicate the approval of the Commission in regard to the
regularisation of their ad-hoc appointment as Panchayet Extension
Officer w.e.f. the respective date of their joining to the post." But
the Government did not take any action in furtherance to this
communication and now the blame is being put on the petitioner-
appellant.
8. Heard both sides and perused the evidence on
record.
9. It is seen from the record that way back in the year
1992, the Government has recommended the name of the
petitioner-appellant and 2(two) others. Said letter of communication
is produced here-in-under:-
"No.F.1(1-2)-Estt/98/79/ Vol-ii)/ 3325-26
Government of Tripura
Directorate of Panchayat
Dated, Agartala, the 19th June, 1992.
To
The Deputy Secretary
Tripura Public Service Commission, Agartala
Subject : Temporary appointment of 3 (three ) Panchayat Extension Officer on
ad-hoc basis-regularization of appointment thereof.
Sir,
Kindly refer to this Directorate letter No.F.1(1-2)-
Estt/PR/79(Vol.III) /2406-08, dated 31.5.1990 on the above subject.
I would inform you that in pursuance of the decision and approval
of the Government, 3 (three) seats ( Un-reserved) of Panhayat Extension
Officers available as vacant in the Deptt. Against direct recruitment were filled a
by appointing following 3 ( three) persons temporarily on ad-honc basis w.e.f.
the date maintained against each of them.
1. Sri Debashish Datta Roy -15.9.1989( FN)
2. Sri R Basanta Sen.- -15.9.1989( FN)
3. Sri Asish Dutta - 27.9.1989 ( FN)
The appointment on ad-hoc basis was made in the interest of
Public Service and in administrative exigencies. It has been decided by the
Government that the ad-hoc appointment of above 3( above) Panchayat
Extension Officers should be regularized with the approval of the commission.
The detailed particulars in respect of above 3 ( three) persons
are furnished in the Annexure which may kindly be perused.
I would , therefore, request you to kindly communicate the
approval of the commission in regard to the regularization of their ad-hoc
appointment as Panchayat Extension Officer w.e.f. the respective date of their
joining to the post.
An early action is requested.
Enclo: As stated
1(one) sheet
Yours faithfully
Sd/-
(S.N. Chakraboty)
Director of Panchayat
Government of Tripura"
10. As evident from the above-mentioned letter, way
back in the year 1992, the Government has recommended for
regularisation of the petitioner-appellant with the approval of the
Tripura Public Service Commission. This Court is of the opinion that
since the matter is pending, the petitioner-appellant is not at fault.
The petitioner has rendered 28 years of service and he is entitled
for the benefits. In respect of said argument, this present writ
petition is allowed in favour of the petitioner-appellant.
11. The Hon'ble Single Judge in the impugned
Judgment dismissed the writ petition on the ground that the
petitioner-appellant did not claim for any regularisation of service
during the tenure of his service period. But it is seen from the
record that with a prayer to review his appointment in the post of
Panchayet Extension Officer issued in AD-HOC basis, the petitioner-
appellant submitted several representations since 2017 and much
before which is the subject matter of WP(C) No.602 of 2019 which
is the continuation of this writ appeal.
12. On the point of laches, this Court is of the opinion
that for the laches of the respondents in not acted upon to
regularise the petitioner and allowing him to retire from service,
when the petitioner-appellant raised his voice for pensionary
benefits, respondents declining the request of the petitioner-
appellant on the ground that his services were not regularised have
no weightage as the petitioner-appellant is not at fault, but, it is the
inaction of the respondents for sleeping over the matter all through.
On the above-mentioned point, this Court may refer to Hon'ble
Superme Court Judgment passed the State of Gujarat & others v.
Talsibhai Dhanjibhai Patel(supra).
The relevant portion of the said Judgment is again
reproduced here-in-under for convenience:-
"O R D E R
It is unfortunate that the State continued to take the services of the respondent as an ad-hoc
for 30 years and thereafter now to contend that as the services rendered by the respondent
are ad-hoc, he is not entitled to pension/pensionary benefit. The State cannot be permitted to
take the benefit of its own wrong. To take the Services continuously for 30 years and
thereafter to contend that an employee who has rendered 30 years continues service shall not
be eligible for pension is nothing but unreasonable. As a welfare State, the State as such
ought not to have taken such a stand. In the present case, the High Court has not committed
any error in directing the State to pay pensionary benefits to the respondent who has retired
after rendering more than 30 years service. Hence, the Special Leave Petition stands
dismissed. Pending application(s), if any, shall stand disposed of."
Earlier, WP(C) No.609 of 2023 was filed by one Mr.
Debashish Datta Roy who is shown at serial No.1 in communication
dated 19.06.1992 and this petitioner at serial No.2. This Court
disposed the said WP(C) No.609 of 2023 by order dated 09.02.2024
and Judicial discipline requires to maintain parity. Accordingly this
petitioner is also entitled to relief.
13. In view of the above discussion and observation,
this Court is of the opinion, that the petitioner-appellant herein is
entitled to the benefits as claimed by him in his writ appeal.
Accordingly, this present writ appeal stands allowed and the
impugned Judgment and Order dated 01.08.2022 passed by the
Hon'ble Single Judge in WP(C) No.634 of 2021 is set aside.
14. As a sequel, stay if any stands vacated. Pending
application(s), if any also stands closed.
B. PALIT, J T. AMARNATH GOUD, J
suhanjit
RAJKUMAR Digitally
RAJKUMAR
signed by
SUHANJIT SUHANJIT SINGHA
Date: 2024.03.07
SINGHA 14:57:55 +05'30'
