Tripura High Court
Sri Rajib Paul vs The State Of Tripura on 3 September, 2024
IN THE HIGH COURT OF TRIPURA
AGARTALA
W.A. No.84 of 2024
W.A. No.95 of 2024
In W.A. No.84 of 2024
Sri Rajib Paul,
son of late Bijoy Krishna Paul, resident of Math
Chowmuhani, P.O. Agartala College, P.S. East
Agartala, Agartala, District- West Tripura, PIN-
799004
......... Appellant
By Advocate :
Ms. S. Debgupta, Adv.
-Versus-
1. The State of Tripura,
represented by the Commissioner & Secretary,
Public Works Department, Government of
Tripura, having his office at Secretariat
Building, PO-Kunjaban, PS-New Capital
Complex, District-West Tripura, PIN-799006
2. The Commissioner & Secretary,
Public Works Department, Government of
Tripura, having his office at Secretariat
Building, PO-Kunjaban, PS-New Capital
Complex, District-West Tripura, PIN-799006
3. The Commissioner & Secretary,
Finance Department, Government of Tripura,
having his office at Secretariat Building, PO-
Kunjaban, PS-New Capital Complex, District-
West Tripura, PIN-799006
4. The Deputy Secretary,
Public Works Department, Government of
Tripura, having his office at Secretariat
Building, PO-Kunjaban, PS-New Capital
Complex, District-West Tripura, PIN-799006
5. The Chief Engineer,
Public Works Department, Government of
Tripura, having his office at Secretariat
Building, PO-Kunjaban, PS-New Capital
Complex, District-West Tripura, PIN-799006
............ Respondents
By Advocate :
Mr. D. Sarma, Addl. GA
Page 2 of 14
In W.A. No.95 of 2024
1. Sri Shyama Prasad Sarkar,
son of Late Atul Chandra Sarkar, resident of
village- Madhyapara, PO & PS- RK Pur,
Udaipur, District- Gomati Tripura, PIN-799120.
2. Sri Ashis Nath,
son of Late Nanigopal Nath, resident of village-
Shakaibari, PO- Shakaibari, PS- Dharmanagar,
Dharmanagar, District- North Tripura, PIN-
799251
3. Sri Krishnadhan Debnath,
son of Late Satish Chandra Debnath, resident of
village- Badharghat (opposite to TGB), PO-
Siddhi Ashram, PS- AD Nagar, Agartala,
District-West Tripura, PIN- 799003
4. Sri Subimal Datta,
son of Sudhir Chandra Datta, resident of village-
West Julaibari, PO- Julaibari, PS-Baikhora,
District- South Tripura, PIN- 799141
5. Sri Himangshu Shekhar Chanda,
son of Late Harendra Bijoy Chanda, resident of
village-Post Office road, near BBI staff quarter,
PO & PS. Dharmanagar, Dharmanagar, District-
North Tripura, PIN-799250, Age-59.
6. Sri Ananda Debnath,
son of Late Rajani Kanta Debnath, resident of
village-50, Office Lane, PO-Agartala, PS- West
Agartala, Agartala, District-West Tripura, PIN-
799001
7. Sri Rahul Deb,
son of Birendra Ranjan Deb, C/O Dipak
Chandra Deb, resident of village-340 Main road
west, near RK road, PO- New Barackpore, PS-
Kherdah, District- 24 Pargana North, West
Bengal
8. Sri Jyotirmay Nath,
son of Late Jatindra Chandra Nath, resident of
village, PO & PS- Panisagar, District- North
Tripura, PIN-799260.
Page 3 of 14
9. Shri Anupam Chakraborty,
son of Late Ajit Chakraborty, resident of
Ramnagar Road No.-5, PO- Ramnagar, PS-
Durga Chowmuhani, Agartala, District- West
Tripura, PIN-799002
10. Sri Ratan Chandra Saha,
son of Late Rebati Mohan Saha, resident of
village-Paulpara, Office Tilla, PO & PS-
Bishalgarh, District- Sepahijala Tripura, PIN-
799102
......... Appellants
By Advocate :
Mr. Somik Deb, Sr. Adv.
Mr. P. Chakraborty, Adv.
-Versus-
1. The State of Tripura,
represented by the Commissioner & Secretary,
Public Works Department, Government of
Tripura, having his office at Secretariat
Building, PO-Kunjaban, PS-New Capital
Complex, District-West Tripura, PIN-799006
2. The Commissioner & Secretary,
Public Works Department, Government of
Tripura, having his office at Secretariat
Building, PO-Kunjaban, PS-New Capital
Complex, District-West Tripura, PIN-799006
3. The Commissioner & Secretary,
Finance Department, Government of Tripura,
having his office at Secretariat Building, PO-
Kunjaban, PS-New Capital Complex, District-
West Tripura, PIN-799006
4. The Deputy Secretary,
Public Works Department, Government of
Tripura, having his office at Secretariat
Building, PO-Kunjaban, PS-New Capital
Complex, District-West Tripura, PIN-799006
5. The Chief Engineer,
Public Works Department, Government of
Tripura, having his office at Secretariat
Building, PO-Kunjaban, PS-New Capital
Complex, District-West Tripura, PIN-799006
............ Respondents
By Advocate :
Mr. D. Sarma, Addl. GA
Page 4 of 14
Date of hearing and delivery
of Judgment and order : 3rd September, 2024.
YES NO
Whether fit for reporting :
HON'BLE THE CHIEF JUSTICE APARESH KUMAR SINGH
HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA
JUDGMENT & ORDER (ORAL)
Both the Writ Appeals having arisen out of the judgment and order dated
08.04.2024 passed by the learned Writ Court in W.P.(C) No.872 of 2021, are heard
together and are disposed of by this common judgment. By the impugned judgment,
the writ petition was dismissed.
[2] Admittedly all the writ petitioners, the appellants herein, are Diploma
holder Junior Engineers working in the Public Works Department (in short, PWD)
guided by Tripura Engineering Service Rules, 1987. As per the said Rules, initially
there were total 5(five) grades of Engineers in the service which were as follows:
Gr.I - (i) Chief Engineers and (ii) Additional Chief Engineer & Arbitrator
Gr.II -Superintending Engineers
Gr.III-Executive Engineers or equivalent Engineering posts.
Gr.IV-Assistant Engineers and equivalent Engineering posts.
Gr.V. -(i) Junior Engineer and (ii) Oberseers/Estimator
[3] Some changes were thereafter made in those grades by 3rd Amendment
of the year 2007 AD and now after the 7th Amendment of the said Rules came into
force with effect from 10.06.2014, the classification of different grades in the service
are made in the following manners:
(i) Grade-I Group-A, gazetted
(ii) Grade-II Group-A, gazetted
(iii) Grade-III Group-A, gazetted
(iv) Grade-IV Group-A, gazetted
(v) Grade-V(A) Group-B, gazetted
(vi) Grade-V(B) Group-C, Non- gazetted
As per rule 4, the Strength of the Service is as follows:
1) The authorized permanent strength of the service and the duty posts
included therein shall be as specified in the Schedule to these rules.
2) The Government may, be order, create duty posts for such period as may
be specified therein.
3) Distribution of posts of Grade-V between Grade V(A) and V (B)
shall be 70:30.
4) Distribution of posts between Degree Holder and Diploma Holder in
Grade-V [Grade-V(A) and Grade-V(B) together shall be 50:50.
[4] It is the case of the petitioners that all of them having Diploma in Civil
Engineering were appointed to the post of Overseer/Estimator in the pay scale of
Rs.600-35-950-40-990-45-1440/- on different dates. Thereafter, as per the addendum
issued by the State of Tripura dated 30.03.1989 in respect of State Civil Services
Revised Pay Rules, 1988, the designation of Overseer (both Diploma holders and
non-Diploma holders/non-Degree holders) were re-designated as Junior Engineer
Grade-II and it was also provided therein that a Junior Engineer Grade-II (Diploma
holders) who had completed 4(four) years of service including services as Overseer
after coming over to the revised pay scale as per Revised Pay Rules, 1988, shall be
designated as „Junior Engineer, Grade I‟ in the revised pay scale of Rs.2000-4410/-
from the date of completion of 04 years of service. According to the petitioners, they
were accordingly given automatic grade movement in the said revised scale of
Rs.2000-4410/- in the post of Junior Engineer Grade-I. Thereafter, Tripura State
(Revised Pay) Rules, 1999 came into force and again by a notification dated
03.07.2000, the Finance Department, Government of Tripura made certain
amendments of Rule 10 thereof by making a provision of movement to the next
higher grade of an employee to any cadre service excepting [Grade-V Junior Engineer
(Diploma) of Tripura Engineering Service/Tripura Power Engineering Service] on
completion of 17 years of continuous and satisfactory service in his/her existing Grade
in the respective cadre without promotion. However, by said amendment, the Junior
Engineers (Diploma) in Grade-V of the Tripura Engineering Service/Tripura Power
Engineering Service were allowed to move to the next higher grade on completion of
19 years of continuous and satisfactory service without promotion. It was also
further provided that in the event of such movement, the benefit shall be personal to
the employee concerned and should not involve any increase in the cadre strength and
where the cadre rules so require, or as per the rules it was not possible to accommodate
in higher grade, the movement may not necessarily entail change or nature of duties. It
was also further provided therein that while the past service in the grade would be
taken into account for allowing movement to next grade, the actual benefit would
accrue on and from 01.04.2000.
[5] Thereafter, on 19.05.2001 [Annexure-7 to the writ petition] another
notification was issued by the Finance Department and the relevant portion of the said
notification is extracted below:
"2. If a Group C employee in any cadre service gets scale advancement by movement
to a next Higher grade of Group-B posts after a specified period, he will move to the
next higher grade on completion of seventeen years‟ continuous and satisfactory
service in the grade of Group-B posts.
Illustration: In the Tripura Engineering Service/Tripura Power Engineering Service, a
diploma holder engineer is directly recruited to Group V(B) in the pay scale of
Rs.5000-10300 which is a Group-C post. He moves to the next higher grade V(A) after
eight years' continuous and satisfactory service in the pay scale of Rs.7450-13000
which is of Group-B post. A degree holder Engineer is directly recruited to Grade V(A)
of the service. Both degree holders and diploma holder Engineers shall move in Grade-
IV on completion of seventeen years' continuous and satisfactory service in Grade
V(A).
(3) An employee of any cadre service appointed to a grade of Group-B or A posts shall
move to the next higher grade on completion of seventeen years' continuous and
satisfactory service in the existing grade, if in the mean time he does get any
promotion.
(4) The benefit of movement to a higher grade shall be personal to the employee
concerned and shall not involve any increase in the cadre strength. Where the
cadre rule so requires or as per the rules it is not possible to accommodate the
employee within the cadre strength of the higher grade, the movement shall not
entail change or nature of duties.
Provided further that while the past services in the grade would be taken in to account
for allowing movement to the next grade, the actual benefit would accrue on and from
01.04.2000."
[6] Thus, by said notification, it was clarified that said movement to the
higher grade on completion of 17 years of service will be given where the employee
does not get promotion and such financial upgradation will be personal to the
employee concerned and shall not involve any increase in the cadre strength.
[7] As stated by the petitioners, they were given the benefit of such
movement of pay in the next higher grade i.e. in the Grade-IV of Tripura Engineering
Service during the period 2007-08 on successful completion of their 17 years of
service without according any promotion and were given full duty charge meant for the
post of Assistant Engineer. Therefore, according to them, now they are also entitled
to get promotion to the next grade i.e. Grade-III of Tripura Engineering Service on
completion of 7(seven) years of service in terms of Rule 15 of Tripura Engineering
Service Rules as amended from time to time, but without according such promotion,
suddenly the department has issued a notification dated 30.09.2021 as impugned in the
writ petition appointing them to the post of Tripura Engineering Service Grade-IV
(Civil), Group-A Gazetted on ad-hoc basis in the pre-revised scale of Rs.15600-
39100/- in PB-4 with Grade Pay of Rs.6600/- with prospective effect subject to
outcome of the SLP(C) No.19765-19767 of 2015.
[8] In view of above, challenging the said notification, the writ petitioners-
appellants have filed the writ petition for issuing writ of mandamus or in the nature of
the same, directing the respondents to revoke the said impugned order dated
30.09.2021 and to grant them promotion to the post of Grade-IV of Tripura
Engineering Service with retrospective effect and now to the Grade III of the service
forthwith with all financial benefits.
[9] The learned writ court rejected the writ petition holding that TES Rules
did not provide for automatic adjustment of Grade IV Diploma-holder Engineers to the
next higher grade, i.e. in Grade-III, and the selection for inclusion in the selection list
for recruitment to the post of Grade-III cadre is subject to the requirement of
successfully undergoing a selection process. The relevant observations of the learned
writ court are extracted hereunder:
"12. On cumulative reading of Rule 3, Rule 5(2), Sub-rules (1) and (2) of Rule 14,
Sub-rule (4) of Rule 15 and Rule 16 of TES Rules, it comes to fore that there is
prescribed mechanism in clear terms that the eligible Diploma-holder Engineers in
Grade-IV must go through a proper selection process. There shall be a properly
constituted Selection Committee, which after assessment of overall merits and
suitability of such engineers coupled with other factors mentioned in Rule 16 of TES
Rules shall recommend their consideration for promotion to the posts of Grade-III
cadre. So, it can safely be held that TES Rules does not provide for automatic
adjustment of Grade IV Diploma-holder Engineers to the next higher grade, that is,
Grade-III, and the selection for inclusion in the selection list for recruitment to the
post of Grade-III cadre is subject to the requirement of successfully undergoing a
selection process.
13. In addition, each of such Diploma-holder Engineers shall have to render
minimum 7(seven) years‟ of regular service in Grade-IV cadre to become eligible or
to come within the zone of consideration for the purpose of selection and recruitment
to the post of Grade-III cadre.
14. In the instant case, the petitioners were appointed only on ad hoc basis and,
needless to say, have not rendered/completed 7(seven) years‟ of regular service in
Grade-IV cadre, which is a pre-requisite; or to say it otherwise, a condition precedent
for the Diploma-holder Engineers to become eligible and enter into the consideration
zone for selection/recruitment to the posts of Grade-III cadre. Therefore, this Court
cannot pass any direction upon the respondents to adjust the petitioners against the
posts meant for Grade-III.
15. When there is specific rule that recruitment to the post of Grade-III from Grade-
IV shall be made on recommendation of a Selection Committee, then, there is no
scope to bypass the said rule as mentioned in Rule 14(1) and Sub-rule (4) of Rule 15
because the language of the said rules is seemingly clear and unambiguous.
According to the basic rule of interpretation, where plain wordings used in a
rule/statutory provision are clear and unambiguous, then, the Court is to go by the
rule of literal construction and it is precluded to include or exclude or mend or to
make any interpretation by means of taking external aids.
[emphasis supplied]
Here, I may profitably refer to a decision of the Hon‟ble Supreme Court in Shiv
Shakti Coop. Housing Society vs. Swaraj Developers, reported in (2003) 6 SCC
659 where it was observed that:[SCC p. 669, para 19]
"19. It is a well-settled principle in law that the court cannot read
anything into a statutory provision which is plain and unambiguous.
A statute is an edict of the legislature. The language employed in a
statute is the determinative factor of legislative intent."
Again, in Union of India vs. Hansoli Devi, reported in (2002) 7 SCC 273, the
Hon‟ble Supreme Court has observed thus:[SCC p.281, para 9]
"9.....It is a cardinal principle of construction of a statute that when
the language of the statute is plain and unambiguous, then the court
must give effect to the words used in the statute and it would not be
open to the courts to adopt a hypothetical construction on the
ground that such construction is more consistent with the alleged
object and policy of the Act."
In Hiralal Rattanlal vs. State of U.P., reported in (1973) 1 SCC 216, the Hon‟ble
Supreme Court has observed that: [SCC p. 224, para 22]
"22.... In construing a statutory provision, the first and the foremost
rule of construction is the literary construction. All that the court
has to see at the very outset is what does that provision say. If the
provision is unambiguous and if from that provision the legislative
intent is clear, the court need not call into aid the other rules of
construction of statutes. The other rules of construction of statutes
are called into aid only when the legislative intention is not clear."
[10] We have heard Mr. S. Deb, learned senior counsel assisted by Mr. P.
Chakraborty and Ms. S. Deb Gupta, learned counsel appearing for the appellants and
Mr. D. Sarma, learned Addl. GA appearing for the respondents at length.
[11] As per the Rules, movement from Junior Engineer, Grade-II to Junior
Engineer Grade-I, on completion of 4(four) years of service was automatic. Ms. S. Deb
Gupta, learned counsel referred the definition of duty post as provided in Rule 2(b) in
the following terms:
2(b) „Duty post‟ means any post specified in the Schedule appended to these rules are
includes a temporary post carrying the same designation as any of the post specified
in the schedule and the scale of pay of which is identical to that attached to any
Grade of the Service.
[12] According to both the learned counsel of the appellants, the appellants
were not only given the financial benefits of Grade-IV of Tripura Engineering Service
but they also discharged the duties of Grade-IV of Tripura Engineering service in the
duty post and therefore, in terms of Rule 31, they should be treated to be
accommodated in Grade-IV of the service and on completion of 7 (seven) years of
service in Grade-IV, they are now eligible to be promoted to the Grade-III of the
service. The relevant extract of Rule 31 of the Rules of 1987 which deals with
transitional arrangement of the cadre in Grade-III, IV & V of the service, are reflected
below:
31. Transitional arrangement:
Transitional arrangement for adjustment of existing members of the service wherever
found in excess, shall be considered in the following manner:
(1) Degree holders found in excess in Grade-IV, if any, shall immediately be adjusted
against both the direct recruitment and promotion posts for Degree holders. These
shall be adjusted finally as per amended rules hereby on availability of future
vacancies.
(2) Diploma-holders, found in excess in Grade-IV, if any, shall immediately be
adjusted against the vacancies of direct recruitment posts for Degree holders in
Grade-IV. The same shall be adjusted finally as per amended rules hereby on
availability of future vacancies.
(3) Degree holders found in excess, in Grade V(A), if any, shall immediately be
adjusted against the vacancies in Grade V(A) for Diploma holders and shall be
adjusted finally as per amended rules hereby on availability of future vacancies.
(4) Diploma-holders found in excess, in Grade-V(A), if any, shall immediately be
adjusted against the vacancies in Grade V(B) for Diploma holders and the same shall
be adjusted finally as per amended rules hereby on availability of future vacancies.
[13] Both the learned counsel of the appellants submit that after 33/34 years
of rendering service satisfactorily in the department, suddenly by the impugned order
dated 30.09.2021 they have now been shown to be promoted to the Grade-IV of the
service, which, according to the learned counsel, is highly illegal, arbitrary and serious
detrimental to the interest of the petitioners and same is liable to be quashed with a
direction to the respondents for taking step for their promotion to the Grade-III on
completion of 7 (seven) years of service. According to both the learned counsel, both
the original rules and the amendments made thereupon contemplate that there should
be automatic movement to the higher grade from the lower grade i.e. from Grade-V to
Grade-IV and the respondents were/are, therefore, under statutory obligation to adjust
all the appellants in Grade-IV making them eligible for their next promotion in the
Grade-III of the service. It is also informed by the Ld. Counsel that some of the
appellants meanwhile have also gone on retirement.
[14] Mr. D. Sarma, learned Addl. GA appearing for the State-respondents
vehemently opposes the contentions of the learned counsel of the appellants that there
is significant difference between a duty post and a functional post and automatic
promotion to the higher grade is not permitted as per the rules. According to Mr.
Sarma, learned Addl.GA, holding of any duty post or providing of any financial
upgradation cannot be compared at par with the person holding a regular post in a
cadre unless there has been a regular promotion in accordance with the procedure of
the promotion as prescribed in Tripura Engineering Service Rules. He also contends
that promotion to the Grade-III would be permissible if the appellants would have hold
a substantive post in Grade-IV and not otherwise and in the present case, none of the
appellants was ever promoted to Grade-IV of the service. Therefore, according to him,
learned writ court was completely justified in rejecting the claims of the appellant-
petitioners.
[15] We have given thoughtful consideration to the submissions made by both
the parties. The financial upgradation as indicated above was provided to the
appellants in terms of Revised Pay Rules, 1999 or the previous pay rules and different
instructions issued by the State Government thereupon and it was specifically
mentioned in both the notifications dated 03.07.2000 and 19.05.2001 that such
financial benefits were given by way of pay upgradation when no promotion was
provided to the concerned engineers and it was also categorically noted in those
notifications that such benefit of movement to the higher grade should be personal to
the employee concerned and would not involve any increase in the cadre strength.
[16] In view of the above, according to us, such financial upgradation did
not/does not confer any right upon the appellants to claim that already they were
promoted to the post of Grade-IV of Tripura Engineering Service. In view of change in
the grades of the service, the Engineering Service Rules of 1987 by its 3rd Amendment
w.e.f. 31.08.2006 brought certain changes in the mechanism for recruitment in various
grades by way of promotion through selection procedure as provided in Part-V of the
rules. Rule 14 provided constitution of Selection Committee consisting of 5 members
for recruitment for the posts of Grade-I(A), Grade-I(B), Grade-II, Grade-III and Grade-
IV of the service. Rule 15 laid down the conditions of eligibility for selection and
procedure for selection was laid down in Rule 16. For useful reference, Rule 16 as
noted below:
16. Procedure for selection:
(1) The Committee constituted under sub-rule (1) and sub-rule (2), as the case
may be, of rule 14 shall consider from time to time, cases of those officers who
are eligible under rule-15 for promotion to a higher Grade and prepare a list of
persons recommended taking into account the actual number of vacancies at the
time of selection and those likely to occur during a year. The selection for
inclusion in the list shall based on merit and suitability in all respects for
appointment to the service with due regard to seniority.
Provided that where a person is considered for such appointment to a higher
grade from a lower grade, all persons senior to him in the lower feeder grade
shall also be considered irrespective of whether or not they fulfil the
requirement of the minimum period of regular service in the lower grade as
provide in rule-15.
(2) The names of persons included in the list shall be arranged in the order of
merit and be forwarded to the Government.
Provision for consultation with the the commission was also
provided there in Rule 17 which are as follows:
17. Consultation with the Commission.
(1) The list prepared under sub-rule (2) of rule-16 shall be forwarded by the
Government to the Commission along with the relevant records, where
consultation with the Commission is necessary or where the Chairman of the
Commission desires that a reference be made to the Commission.
(2) If the Commission considers it necessary to make any change in the list
received from the Government, the Commission shall inform the Government of
the changes proposed.
(3) The list shall finally be approved by the Government after taking into
account the changes, if any, proposed by the Commission.
(4) The list thus finally approved shall ordinarily be in force until a fresh list is
prepared for the purpose in accordance with these rules.
Further, certain modifications without changing the basic structure
in such selection process were brought by 7th Amendment of the Rules as notified
vide notification dated 10.06.2014.
[17] In view of the above said provisions, in no way the financial upgradation
can be treated to be a promotion to the next higher post. As it appears, all through there
has been a complete scheme or mechanism in the Rules of 1987 regarding the
procedure for promotion to the higher post and as such, there is no scope to accept the
contention of the appellants that they were automatically promoted to the Grade-IV on
completion of 17 years of service.
[18] Moreover, the appeals raise a claim for promotion to Grade IV and
consequently to Grade-III from a much anterior date. The appellants have been
promoted on ad-hoc basis in Grade-IV by a notification dated 30.09.2021 as per
Tripura Engineering Service Rules and ad-hoc promotion policy dated 22.06.2021.
There is no explanation from the side of the appellants for the delay in approaching
this court for promotion since 2008 to Grade-IV and consequently, now to Grade-III.
Therefore, there are laches apparent on the part of the appellants as vested rights might
have been created in favour of the incumbents who have already got into those Grade-
IV & III posts by way of promotion during this period. Learned writ court also like us
has given due consideration on the issues raised from the side of the appellants keeping
in mind the interplay of various rules of Tripura Engineering Service as well as the
operation of ROP Rules of which the appellants got the financial upgradation as Career
Advancement Scheme (CAS).
[19] In view of the above, there is no merit in the both the appeals requiring
any interference with the impugned judgment and consequently, both the appeals are
dismissed.
Interim application(s), if any, also stands disposed of.
(S.D. PURKAYASTHA), J (APARESH KUMAR SINGH), CJ
SUJAY GHOSH Digitally signed by SUJAY GHOSH
Date: 2024.09.23 13:14:29 +05'30'
Sujay
