Tripura High Court
Sri Tapan Das vs Tripura State Electricity Corporation ... on 12 March, 2024
Page 1 of 8
HIGH COURT OF TRIPURA
AGARTALA
WA No.12 of 2023
Sri Tapan Das
....... Appellant(s)
VERSUS
Tripura State Electricity Corporation Ltd. and others
...... Respondent(s)
WA No.13 of 2023
Smt. Kajal Rani Bhowmik
....... Appellant(s)
VERSUS
Tripura State Electricity Corporation Ltd. and others
...... Respondent(s)
For Appellant(s) : Mr. P. Roy Barman, Sr. Advocate,
Mr. Kawsik Nath, Advocate.
For Respondent(s) : Mr. D. Sarma, Addl. GA,
Mr. N. Majumder, Advocate.
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
HON'BLE MR. JUSTICE S. D. PURKAYASTHA
_O_R_D_E_R_
12/03/2024
Heard Mr. P. Roy Barman, learned senior counsel assisted by Mr.
Kawsik Nath, learned counsel for the writ petitioners/ appellants. Also, heard
Mr. N. Majumder, learned counsel for the respondent-Corporation.
[2] These two appellants were regularized in services by virtue of the
offer of appointment issued in their favour along with 50 others vide office order
No.F.6(151)-TSECL/Corp.Office/2015/32217-311 dated 10.09.2015 issued by
order of the Chairman-cum-Managing Director, Tripura State Electricity
Corporation Limited (TSECL) under the signature of General Manager (Finance)
& Company Secretary, TSECL, Agartala. This order of regularization was
preceded by an exercise undertaken by the corporation pursuant to the letter
dated 10.08.2010 issued by the Finance Department, Government of Tripura
asking for proposal for regularization of eligible cases out of the list sent earlier
along with the details and after obtaining approval of the Boards/ Executive
Committees/ Governing Bodies within a period of 2(two) weeks. Vide letter
dated 28.02.2011 (Annexure-2) the particulars of Daily Rated Workers (DRW)/
Contingent/ Casual/ Part-time workers were sent by the Deputy General
Manager, Electrical Division No. IV, Udaipur, South Tripura to the Deputy
General Manager (Corporate), Corporate Office, TSECL, Tripura, Agartala.
Thereafter, by order dated 10.09.2015 offer of appointment were issued to the
writ petitioners and several others. The offer of appointment indicates that in
accordance with the decision of the Finance Department, Government of Tripura
the corporation has decided to regularize the services of the persons named in the
list enclosed as DRW/ Contingent worker for the post of Helper Grade-II and
appoint them on purely temporarily basis in the scale of pay of PB-1, Rs.4840-
13000/-, Grade Pay Rs.1400/- plus other allowances as admissible to the
employees of TSECL. The candidates were directed to submit his/ her joining
report as Helper Grade-II to his/her place of posting on or before 17th September,
2015. Candidates were also asked to submit attested copies of all required
certificates/ documents etc. as per terms and conditions enclosed with the
attestation form. It is not in dispute that both the writ petitioners/ appellants
herein submitted their joining on 17th September, 2015(Annexure-5). However,
in the next date i.e. on 18.09.2015 (Annexure-6) the order dated 10.09.2015
(Annexure-3) was kept in abeyance until further order due to unavoidable
circumstances and administrative reasons. This order dated 18.09.2015 was
revoked by letter No.F.6(151)-TSECL/Corp.office/21959-20075 dated
07.08.2017 issued by order of the Chairman cum Managing Director, TSECL
under the signature of the Director (Finance) & Company Secretary, TSECL with
immediate effect. Writ petitioners approached this Court in the year 2017 along
with several others seeking payment of arrears of salary applicable with effect
from the date of furnishing their acceptance to offer of appointment i.e.
17.09.2015 as their representation remained un-redressed.
[3] The respondent-corporation inter alia took the following plea in
their counter affidavit at paragraph Nos.9 to 11 which are extracted hereunder:
"9. That, in reply to the averments and/or contentions
made in para 7, 8 & 9 of the writ petition I state that the
petitioner has submitted his joining report on 17.09.2015 to
the office of the Senior Manager, ESD Dhajanagar, the
joining of petitioner as forwarded by the concern DGM to the
Director (Finance) & Company Secretary TSECL but not
accepted by the authority as the offer of appointment was
issued against his vide No.F.6(151)-TSECL/ Crop.Office/
2015/32,217-311 Dated 10.09.2015 has kept in abeyance due
to unavoidable and Administrative reason. The said
memorandum dated 18.09.2015 was given to the petitioner.
Due to some official enquiry the said offer of appointment as
issued on 10.09.2015 has kept in abeyance. But subsequently
on 07.08.2017 the said order dated 18.09.2015 for keeping in
abeyance of appointment of the petitioner and along with 51
persons was withdrawn. On 06.01.2018 the Director (Fin.)
and Company Secretary, TSECL, Agartala issued an office
order to give direction to all the DDOs under TSECL to
release the pay and allowances as admissible w.e.f.
07.08.2017. It is mentioned that as per the balance sheet
during the assessment year 2017-18 of Tripura State
Electricity Corporation Ltd. it reveals the loss for assessment
year is 39440,46,504/-. As such the Corporation is not in a
position to take extra financial burden.
Copy of the office order dated 07.08.2017 &
06.01.2018 and Copy of the balance sheet during the
assessment year 2017-18 are annexed herewith and marked
as Annexure-R1, R2 & R3.
10. That, with regard to the statements made in
para 10 of the writ petition I state that the answering
respondents already withdrawn the previous order dated
18.09.2015 and issued order for releasing the pay and
allowances as admissible w.e.f. 07.08.2017. It is vehemently
denied by the answering respondents the respondents are
acting arbitrarily and illegally as a result the accrued right to
the petitioner has been inference by the respondents.
11. That, in reply to the averments and/or
contentions made in para 11 of the writ petition I state that
due to some Administrative enquiry in respect of the
petitioner as well as other 51 persons and some
Administrative reasons the offer of appointment issued on
10.09.2015 had been kept in abeyance. It is vehemently
denied by the respondents that most illegally and arbitrarily
without any reason the impugned memorandum dated
18.09.2015 has been issued Director (Finance) & Company
Secretary, TSECL, Agartala."
[4] After taking note of the case of the parties, the learned Single Judge
dismissed the writ petition inter alia holding as under:
"[6] The grievances of the petitioners are that despite
repeated representations, the corporation did not disburse the
arrears of pay which they are entitled from the date of
submitting their acceptance in response to offers of
appointment.
[7] Ms. Deb (Gupta), learned counsel appearing for the
TSECL and Mr. M. Debbarma, learned Addl. G.A. appearing
for the State-respondents have submitted that though the
decision was taken to regularize the services of the DRWs,
but, the Government had kept this memorandum in abeyance
for a certain period due to financial constraints and for
administrative reasons.
[8] Mr. Nath, learned counsel appearing for the
petitioners has submitted that with the withdrawal of office
order dated 07.08.2017, all the petitioners were allowed to
get the regular pay-scale w.e.f. 07.08.2017. I find, the
petitioners were not appointed through the established
procedure of public employment. There was no
advertisement, none of the petitioners had faced any
interview and they were appointed at the choice of some
officers of the Corporation and as such, these appointments
were totally illegal. In-spite of that, the Government has
given some concessions to such DRWs so that they can get
the regular pay-scale.
[9] Considering the entire facts and circumstance of the
cases, I do not find any error or illegalities in the decision of
the Government keeping the process of regularization in
abeyance for a certain period for the reasons as stated above.
As such, these writ petitions being devoid of merits are
accordingly dismissed.
[10] The original file produced by TSECL may be
returned to Mrs. Deb (Gupta), learned counsel appearing for
the TSECL, the respondent No.2."
[5] Being aggrieved these two writ petitioners alone have preferred
these two appeals. We have considered the submissions of the learned counsel for
the parties. On behalf of the appellants it has been contended that once the
decisions to regularize the services of the writ petitioners was issued and writ
petitioners have duly submitted their joining, their contract of service as a regular
employee came into existence. Though it was kept in abeyance by office order
dated 18.09.2015 but the office order was revoked unconditionally with
immediate effect from 07.08.2017. The decision to regularize has not been
revoked. The office order dated 07.08.2017 also does not say that it would be
made effective prospectively. Therefore, the decision to regularize and the offer
of appointment issued thereunder on 10.09.2015 stood revived with effect from
the date on which the petitioners submitted their joining on 17.09.2015. Though
the respondents have taken the plea of administrative reasons and inquiries in the
counter affidavit but the learned Single Judge has erroneously accepted the
submissions made on behalf of the Corporation that these writ petitioners were
appointed at the choice of some officers of the Corporation and, therefore, these
appointments were illegal. It is submitted that apart from the plea of financial
constraints taken by the Corporation in their counter affidavit, there cannot be
any other basis to deny relief to the writ petitioners regarding the arrears of
regular scale of pay from the date on which they joined upon issuance of offer of
acceptance. It appears that other petitioners have not laid any challenge to the
impugned judgment and may have accepted it as a fait accompli. Since the writ
petitioners have been agitating their grievances before this Court in continuation
of the original writ proceedings, the petitioners/Appellants may be granted the
due relief.
[6] Learned counsel for the Corporation has strongly opposed the
prayer. He has drawn the attention of this Court to the grounds raised in their
counter affidavit which has been extracted hereinabove as well. He submits that
certain enquiries were being made before the order of abeyance dated 18.09.2015
was revoked by office order dated 07.08.2017. The corporation has also taken a
plea of financial losses as per the balance sheet during the assessment year 2017-
18. Therefore, the learned Writ Court has rightly refused to grant the relief of
arrears of salary with effect from their date of joining till the revocation order
dated 07.08.2017. Learned counsel for the respondents has, however, not been
able to show from the counter affidavit as to how such submission was made that
these persons were appointed at the choice of some of the officers of the
Corporation and as such, their appointments were totally illegal.
[7] We have considered the submissions of the learned counsel for the
parties and taken note of the relevant material facts from the pleadings on record.
We have also gone through the impugned judgment. The sequence of facts
narrated in the forgoing part of this order undeniably indicates that the services of
these writ petitioners were regularized as they had completed the minimum years
of engagement as DRW or Contingent worker under the Corporation. Such
decision was taken after instructions from the Finance Department and that too at
the level of the Chairman-cum-Managing Director of the Corporation. Both the
writ petitioners had duly submitted their joining by the cut-off date i.e.
17.09.2015. As such, on acceptance of the offer of appointment, their status as a
regular employee had come into existence. It appears that for some
administrative reasons the office order dated 10.09.2015 was kept in abeyance till
further orders vide memorandum dated 18.09.2015. This order was, however,
revoked by office order dated 07.08.2017 with immediate effect. The office order
dated 07.08.2017 (Annexure-R/1) reads as under:
"TRIPURA STATE ELECTRICITY CORPORATION LIMITED
(A Govt. of Tripura Enterprise)
Office Order
The order for keeping in abeyance of appointments of
52(Fifty two) nos Helper Gr-II due to unavoidable
circumstances and administrative reason vide No.F.6(151)-
TSECL/Crop.office/2015/32870-32983. Dt, 18.09.2015 of
the General Manager (Finance) & Company Secretary,
TSECL, Agartala is hereby withdrawn with immediate
effect.
By order of the
Chairman cum Managing Director, TSECL
Sd-
Director (Finance) & Company Secretary
TSECL : Agartala"
[8] This office order does not indicate that the joining of the writ
petitioners as regular employees would be treated with prospective effect from
the date of issuance of the office order i.e. 07.08.2017. If the writ petitioners gain
the status of regular employee and work has been taken from them thereafter
there was no reason why the arrears of salary for the period as a regular employee
should not have been paid by the Corporation. Writ petitioners approached this
Court in the year 2017 itself being aggrieved by denial of arrears of regular scale
of pay since 17.09.2015 once the office order dated 18.09.2015 keeping the offer
of appointment in abeyance was revoked on 07.08.2017. The learned Single
Judge seems to have taken note of the submission of the learned counsel for the
respondent-Corporation that these appointments were illegal as well since they
did not face any interview or regular recruitment process under an advertisement
and were appointed at the choice of some of the officers of the Corporation.
However, the counter affidavit of the respondent-Corporation does not contain
such averments that these engagements were illegal. Had it been illegal, there
would have been no occasion to regularize the appointments. Irregular
appointments can only be regularized as is the ratio in the case of Secretary,
State of Karnataka and others versus Umadevi and others reported in (2006) 4
SCC 1. The plea of financial loss taken by the Corporation in paragraph-9 of the
counter affidavit also does not relate to the assessment year 2015-16 or 2016-17
when the Appellants were regularized by office order dated 10.09.2015. It is in
relation to the year 2017-18. Therefore, this plea also does not merit acceptance.
[9] As such, we are of the considered view that the impugned judgment
passed by the learned Single Judge in respect of these two writ petitioners/
appellants deserves to be interfered. As it appears rest of the writ petitioners have
not preferred any appeal and are satisfied with the impugned judgment.
Accordingly, the prayer of the writ petitioners/appellants deserves to be allowed.
The respondent-Corporation is obliged to make payment of arrears of regular
salary for the period 18.09.2015 to 07.08.2017 after deduction of the payments
already made to the present appellants within a period of 6(six) weeks from the
date of receipt of copy of this order. Let it be made clear that since the other writ
petitioners are not aggrieved by the impugned judgment, the reliefs are confined
to the present writ petitioners/appellants only.
Accordingly, the instant appeals are allowed. Pending application(s)
if any, also stands disposed of.
(S. D. PURKAYASTHA), J (APARESH KUMAR SINGH), CJ
Munna S MUNNA SAHA Digitally signed by MUNNA SAHA
Date: 2024.03.14 17:40:26 +05'30'
