Tripura High Court
Sri Pintu Chowdhury vs The Union Of India on 12 September, 2024
Author: Arindam Lodh
Bench: Arindam Lodh
Page 1 of 16
HIGH COURT OF TRIPURA
AGARTALA
WA No. 69 of 2022
Sri Pintu Chowdhury,
S/o Late Amalendu Chowdhury,
resident of village & PO-Anandanagar,
Agartala, District-West Tripura,
Pin-799004.
........... Appellant(s)
Vs.
1. The Union of India,
represented by the Secretary
to the Government of India,
Ministry of Textiles,
Udyog Bhavan, New Delhi, 110001.
2. The Director (East Zone),
Weaver‟s Service Centre,
Government of India,
Ministry of Textiles,
IIHT Campus, Jawahar Nagar,
Khanapara, National Highway No.37,
Guwahati-781022.
3. The Development Commissioner for Handlooms,
Ministry of Textiles, Udyog Bhavan,
New Delhi-110001.
4. The Assistant Director,
Weaver‟s Service Centre,
Gurkhabasti, Agartala,
West Tripura, Pin-799006.
5. The Deputy Director (Head of Office),
Weaver‟s Service Centre,
Gurkhabasti, Agartala,
West Tripura, Pin-799006.
6. The State of Tripura,
represented by the Secretary,
Government of Tripura,
Tribal Welfare Department,
Kunjaban, New Capital Complex,
Agartala, West Tripura, Pin-799006.
7. Tripura Tribal Welfare Residential
Educational Insitutions Society,
under Tribal Welfare Department,
Government of Tripura, represented by
its Member Secretary, Gurkhabasti,
Agartala, West Tripura, Pin-799006.
Page 2 of 16
8. The Member Secretary,
Tripura Tribal Welfare Residential
Educational Institutions Society,
Tribal Welfare Department,
Government of Tripura, g
Gurkhabasti, Agartala, West Tripura, Pin-799006
.............Respondent(s)
For Appellant(s) : Mr. P Roy Barman, Sr. Advocate.
Mr. K Chakraborty, Advocate.
For Respondent(s) : Mr. B Majumder, CGC.
Mr. D Sharma, Addl. GA
Delivery of judgment : 12.09.2024
Whether fit for reporting : YES.
BEFORE
HON'BLE MR. JUSTICE ARINDAM LODH
HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA
Judgment & Order (Oral)
(Arindam Lodh J)
This is an appeal 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 judgment and order dated 04.02.2022
passed in WP(C) No. 854 of 2021 whereby the learned Single Judge
had dismissed the Writ Petition filed by the present appellant.
[2] By means of filing the present appeal, the appellant has
prayed for the following reliefs:-
I. Admit this Writ Appeal;
II. Call for the relevant records, pertaining to the impugned
judgment & Order (Oral) dated 04.02.2022, passed in WP(C)
No. 854 of 2021;
III. In the interim, during the pendency of this Appeal,
stay/suspend the operation of the impugned Judgment & Order
(Oral) dated 04.02.22, passed in WP(c) No.854 of 2021;
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IV. After hearing the parties, in terms of the GROUNDS set forth
above, be pleased to quash/set aside the impugned Judgment
& Order (Oral) dated 04.02.2022, passed in WP(c) No.854 of
2021, passed by the Learned Single Judge, and thereafter,
allow this Writ Appeal, thereby quashing/setting aside the
impugned Order of Termination dated 16.11.2021 & the
impugned Release Order dated 24.11.2021 (Annexures-24 & 25
respectively to the WP), and thereupon, direct the Respondent
Nos. 1 to 5 to reinstate the Appellant in service, in the post of
Junior Weaver, under the Ministry of Textiles, Government of
India, with all consequential benefits, including arrears of
salary;
V. And pass any other Order(s) as may be deemed fit and proper
for ends of justice.
[3] Undisputed facts are that the writ petitioner was
appointed under Tripura Tribal Welfare Residential Educational
Institutions Society [for short, TTWREIS] under Tribal Welfare
Department, Government of Tripura. He was appointed as Craft
Teacher. While he was discharging his services as Craft Teacher
under TTWREIS, the petitioner was attracted to an advertisement
dated 1st August, 2015 (Annexure- 2 to the writ petition) issued by
Central Employment Exchange, under the Government of India. He
applied for the post of Junior Weaver, having obtained "No Objection
Certificate", to pursue the selection process. Accordingly, the
petitioner appeared before the Selection Committee and came out
successful.
[4] Vide memorandum dated 18.01.2016 (Annexure-8 to the
writ petition) the petitioner was appointed as Junior Weaver in
Weaver‟s Service Centre, Agartala, a Government of India
organization under the Ministry of Textiles, respondents No.1-5
herein. He accepted the offer of appointment and on such
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acceptance, the respondent No.2 issued appointment letter in his
favour in the post of Junior Weaver.
[5] While discharging his duties as Junior Weaver, all on a
sudden the competent authority of Weaver‟s Service Centre received
a complaint from one Utpal Sutradhar stating inter alia that the
petitioner misrepresented the fact that he was a government
employee, since TTWREIS is not a Government Department. He
alleged that the petitioner was not entitled to relaxation of age as the
relaxation clause was applicable only to candidates who served in any
Government Department.
[6] The competent authority of the Ministry of Handloom and
Textiles made a query to the competent authority of the TTWREIS to
know whether TTWREIS was/is a government organization. In reply,
the competent authority of TTEWREIS informed that it was not a
government department, but, it was a "Society" registered under the
Societies Registration Act.
[7] The matter was also taken up with the Department of
Personnel and Training (DoPT), Government of India which informed
that TTWREIS was not a Government Department and it was run by
the Society. Based on those communications the competent authority
had made a communication to the petitioner that he had
misrepresented the fact that his earlier employer was a Government
Department and by that way, he committed a grave misconduct.
Accordingly, his service was terminated vide order dated 16.11.2021.
According to respondent No.5, vide order dated 24.11.2021 the
petitioner was relieved from service in the afternoon of 24.11.2021.
The petitioner has challenged the said impugned order of termination
and relieving him from service by means of filing a writ petition.
Page 5 of 16
[8] When the matter was heard, learned single judge of this
court while disposing of the writ petition held that since TTWREIS was
not a Government Department, so the petitioner should not be
treated as a Government servant/employee. It was further held that
the rule of relaxation only apply in case of a person holding a civil
post under the Government Department. Learned Single Judge in his
judgment has referred to Rule 2(h) of CCS (CCA) Rules, 1965.
[9] Furthermore, it was noted in the order dated 16.11.2021
that the petitioner was not a government servant and the said fact
had been confirmed by the Additional Secretary to the Government of
Tripura, TTWREIS. The relevant portion of the order dated
16.11.2021 is extracted hereunder:
".............Moreover, relaxation of upper age limit for
government servants is applicable only to the
Central Government Civilian Employees holding civil
posts and same is not applicable to personnel
working in autonomous/statutory bodies, Public
Sector undertaking etc., which are governed by
regulations/statute issued by the concerned
administrative Ministries/Departments as per the
instructions/guidelines issued by DoP&T, vide para
3 of OM No.15012/2/2010-Estt(D) dated 27th
March, 2012."
[10] It is pertinent to mention herein that the respondents
No.1-5, that is, the Union respondents have been providing the
petitioner the service benefits in view of the interim order staying the
order of termination dated 16.11.2021.
[11] On the aforesaid background of facts, we have heard Mr.
P Roy Barman, learned Sr. counsel assisted by Mr. K Chakraborty,
learned counsel appearing for the petitioner, Mr. D Sharma, learned
Addl. GA appearing for the respondents No.6, 7 & 8 and Mr. B
Majumder, learned CGC appearing on behalf of respondents No.1, 2,
3, 4 & 5, hereinafter referred to as the union respondents.
[12] Mr. Roy Barman, learned senior counsel has submitted
that the petitioner having obtained „No Objection Certificate‟ from his
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previous employer i.e. TTWREIS had applied for the post of Junior
Weaver in pursuance of the advertisement issued by the Ministry of
Handloom and Textiles, Government of India. Upon successful
selection, he submitted a technical resignation from the post of Craft
Teacher under TTWREIS (respondents No. 6 & 7) and joined to the
post of Junior Weaver under the Union respondents (respondents
No.1-5) and his age was relaxed by the union respondents by way of
invoking relaxation clause in the relevant recruitment rules.
[13] According to learned senior counsel appearing for the
petitioner, since the union respondents knowing fully well that at the
time of appointment his age was more than the prescribed age of 30
years, they on their own wisdom had relaxed and selected the
petitioner for appointment to the post of Junior Weaver. As such, the
union respondents are estopped from taking the plea of
misrepresentation of fact that the petitioner had suppressed that he
was not a government servant under any Government Department of
the Government of Tripura.
[14] Next submission as advanced by learned senior counsel is
that TTWREIS, released the petitioner on lien, and as such
termination of his service as Junior Weaver by the union-
respondents, entitles him to get reinstatement in his previous service
under TTWREIS as Craft Teacher.
[15] Learned Sr. counsel has urged this court that it is a fit
case to attract the doctrine of equity for the purpose of reinstatement
of the petitioner in the post of Craft Teacher under TTWREIS. It is
further argued that the principle enunciated by the Apex court in
Delhi Subordinate Services Selection Board and Another vs
Seema Kapoor [order dated 22.07.2021 delivered in Civil Appeal
Page 7 of 16
No.4461/2021] as relied upon by Learned Single Judge while deciding
the instant case cannot apply to the facts of the instant case.
[16] To oppose the submission of the learned senior counsel
appearing for the petitioner, Mr. Sharma, learned Addl. GA has
submitted that after resignation of the petitioner from the post of
Craft Teacher under TTWREIS, the said post became abolished and at
present there is no existence of the said post. However, pursuant to
this Court interim order, the petitioner remains on payroll without any
work responsibilities.
[17] Learned Addl. GA appearing for the State of Tripura i.e.
respondents No.6, 7 & 8 has contended that TTWREIS is an
autonomous body being constituted under Societies Registration Act
and in no way related to the Government of Tripura. The said society
is financed by the Central Government.
[18] Learned Addl. GA has further submitted that TTWREIS
had entered into a Memorandum of Understanding (for short „MOU‟)
with National Educational Society for Tribal students on 23.03.2020.
Thereafter, the said organization has made its own Recruitment Rules
and at present, the recruitments are made through National Testing
Agency. At this juncture, learned senior counsel, Mr. Roy Barman,
appearing for the petitioner has drawn the attention of this court that
all existing employees as on 23.03.2020 were retained under the said
MOU.
[19] To conclude, Mr. Sharma, learned Addl. GA has submitted
that the State Government has no role or control over the
recruitment process under TTWREIS. Furthermore, the petitioner in
his entire writ petition has not prayed any relief/s neither against the
state respondents nor against the TTWREIS.
Page 8 of 16
[20] Mr. Majumder, learned CGC appearing for the union
respondents has submitted that appointment of the petitioner was
made dehors the relevant recruitment rules carved out for the post of
Junior Weaver and the union respondents had terminated his service
following the relevant rules. The matter was taken up with the
DoP&T, Government of India which confirmed that the TTWREIS was
not a Government Department meaning thereby that the petitioner
was not a government servant/employee. Even TTWREIS in reply to a
query made by the union-respondents admitted that the organization
was purely a society and the Government of Tripura had no control
over it.
[21] We have considered the submissions of the learned
counsel appearing for the parties. We have also perused the
advertisement and the relevant rules as well as the ratio laid in case
of Seema Kapoor (supra) relied upon by learned Single Judge while
disposing of the writ petition.
[22] As observed in the preceding paragraphs, learned Single
Judge had taken into consideration the relevant rules, particularly,
Rule 2(h) of CCS(CCA) Rules, 1965 and the reply given by the
competent authority of TTWREIS in respect of the fact that TTWREIS
was purely a society and was not under the control of the
Government of Tripura vis-a-vis the confirmation in that respect by
the DoP&T, Government of India. Here, it would be relevant to
reproduce the observations and the decision of the learned Single
Judge while dismissing the writ petition filed by the petitioner:
"18. Moreover, Mr. Majumder, learned Asst. S.G.
has, having referred to Tirumala Tirupati
Devasthanams versus K. Jotheeswara Pillai and
Another reported in (2007) 9 SCC 461 contended
that there is no rule to consider the services of the
employees of the societies like TTWREIS for purpose
of relaxation. Hence, there being no statutory
provisions or rules providing exemption from
eligibility criteria, no manadamus can be issued
Page 9 of 16
against the respondents No.1 to 5 for considering
the case of the writ petitioner by granting him
relaxation of age for direct recruitment.
19. Having appreciated the submissions of the
learned counsel for the parties and scrutinised the
records as produced along with the writ petition and
the replies filed by the respondents what has
surfaced is that unless the petitioner is deemed or
treated as the Government servant, he is not
entitled to exemption from any provision of the
recruitment rules and he is also not entitled to the
age relaxation by 10 years. Thus, the moot question
that falls for consideration of this court is whether
the said Society namely Tripura Tribal Welfare
Residential Educational Institutions Society
[TTWREIS] where the petitioner was appointed as
the Craft Teacher can be treated as a Government
Department or not. The Society has been promoted
by the Tribal Welfare Department for the object of
enhancing the capacity of employability of the
target group. Funds are flowing from different
sources. But admittedly the society is governed by
its bye-laws. The said society may be treated as the
instrumentality of the State, but not as the
Government Department."
[23] In addition, in Seema Kapoor (supra) the Hon‟ble
Supreme court has categorically held that the provision for age
relaxation is made only for civil employees of the central government
and not to the employees of the autonomous bodies, public sector
understandings etc. The relevant observation made in Seema
Kapoor may be reproduced hereunder, for convenience:
"8. We have heard learned counsel for the parties
and find that the order passed by the Central
Administrative Tribunal and that of the High Court
are not sustainable. Firstly, the High court has
quoted a wrong provision in the order passed
relating to subsequent advertisement. Secondly the
benefit of age relaxation is permissible for
government servant and departmental candidates.
It is not even the stand of the respondent that she is
government servant and, rightly so, that she is
employed in an autonomous body i.e. municipal
corporation established under the specific statute.
The expression "departmental candidates" is in
respect of the candidates who are working in the
concerned department, i.e. education. The circular
of the Government of India dated 27.03.2012 had
made it explicitly clear that the benefit of age
relaxation is only made for civil employees of the
central government and not to the employees of the
autonomous bodies, public sector undertaking etc.
Therefore, the respondent, as an employee of the
autonomous body, i.e. the corporation, is not
entitled to age relaxation either as a departmental
candidate or as a government servant."
Page 10 of 16
[24] According to us, the main question that arises for
consideration in the instant appeal is whether the petitioner is a
government employee or not? In the light of the admission on behalf
of the respondents No. 6, 7 & 8, that TTWREIS was/is not a
Government Department, needless to say, the petitioner was not a
government servant when he had joined in the post of Junior Weaver
under the union-respondents.
[25] We may gainfully extract Rule 2(h) of CCS (CCA) Rules,
1965, which reads as under-
"2. Interpretation -
In the rules, unless the context otherwise requires,
-
xxxxxxxxxxxxxxxxxxx
(h) "Government servant' means a person who -
(i) is a member of a Service or holds a civil post
under the Union, and includes any such person on
foreign service or whose services are temporarily
placed at the disposal of a State Government, or a
local or other authority;
ii) is a member of a Service or holds a civil post
under a State Government and whose services are
temporarily placed at the disposal of the Central
Government;
iii) is in the service of a local or other authority
and whose services are temporarily placed at the
disposal of the Central Government;"
[26] On careful reading of the aforesaid provision, it is crystal
clear that a government servant must hold a civil post under the
State or Union of India. In view of the said rule, the post of Craft
Teacher under the TTWREIS cannot be treated to be a civil post. As
such, the petitioner cannot be said to be the holder of a civil post.
[27] Again, if the petitioner does not hold a civil post, his
service is not protected under Articles 309, 310 & 311 of the
Constitution of India. At the cost of repetition, we reiterate that by
the communication dated 3rd August, 2017 addressed by Additional
Development Commissioner (HL), Ministry of Textiles, office of the
Development Commissioner for Handlooms addressed to the
Director(East Zone) WSC, Guwahati, it was clearly stated that
"keeping in view of the limited number of eligible candidates, Sri
Pintu Chowdhury was also called to attend the selection test held on
05.01.2016 conditionally subject to furnishing of necessary
documents to proof himself as government servant." In the said
communication dated 3rd August, 2017 it was also stated that "the
extant Recruitment Rules to the post of Junior Weaver to WSC
notified in gazette which have the force of law the age limit for direct
recruits is not exceeding 30 years which is relaxable for government
servants up to the age of 40 years." The said communication also
made reference to Rule 2(h) of CCS (CCA) Rules, 1965 which defines
the government servant.
[28] Reference was made to the reply given by competent
authority of TTWREIS which clearly stated that "the employees under
the Tripura Tribal Welfare Residential Educational Institutions Society
(TTWREIS) do not bear the status of government servants as defined
under Rule 2(h) of CCS (CCA) Rules, 1965." TTWREIS was registered
on 15.03.1997 under Societies Registration Act, 1860 but the
employees of the society are also covered under conduct rules or
service rules of the state government for earned leave, casual leave
and pay scales of teachers and the staff of the society.
[29] It was further replied that the salaries of the employees
of TTWREIS were meted out of the fund received as grants from the
State Tribal Welfare Department and Ministry of Tribal Affairs,
Government of India under Article 275 (1) of the Constitution of India
and State Plan.
[30] Finally, the said communication, in clear terms stated that
"As clarified by Tribal Welfare Department, Govt. of Tripura, the
employees of the TTWREIS do not bear the status of Government
servants as defined under Rule 2(h) of CCS(CCA) Rules. Therefore,
the age relaxation for the post of Junior Weaver in WSC upto the age
of 40 years for Government servants cannot be applied in the case of
employees working in Tripura Tribal Welfare Residential Educational
Institutions Society (TTWREIS). Appointment of Sri. Pintu
Chowdhury, while working in EMR School, run by TTWREIS, has no
legal sanctity." On bare perusal of the relevant rules and the nature
of service of the petitioner under TTWREIS, we are unable to brush
aside the opinion and the decision taken thereof by the union-
respondents while terminating the service of the petitioner.
[31] Now, the question we have to decide whether the
principle of esttopel and waiver shall be applicable in the context of
the present case. Firstly, the petitioner misrepresented the fact that
his previous employer was a government department. The union-
respondents appointed the petitioner on good faith that he was
government servant under a government department. Secondly, the
respondents promptly stepped in to action to remove the illegalities
committed in respect of the appointment of the petitioner in the post
of Junior Weaver and ultimately, rectified the mistake with
promptitude. In the considered view of this court, if an employee
misrepresents a fact that influences the employer‟s decision to
appoint him the employer has the justified grounds to terminate the
service of such employee upon discovering the misrepresentation. In
our opinion, the doctrine of estoppel and waiver are not applicable to
the context of the present case. The petitioner was appointed against
the post of Junior Weaver subject to the condition that he had to
furnish proof that he was a government servant. Later on, though he
was appointed on the basis of declaration that he was a government
servant but subsequently, it was detected that he was not a
government servant for the reason that his previous employer was
not a Government Department but it was a society. It is settled
proposition of law that appointment made on the basis of false
information, or to say it otherwise, appointment order obtained out of
misrepresentation of material fact shall legitimately be treated as
voidable at the option of the employer, which can be recalled by the
employer and in such a case merely because the petitioner-employee
has been appointed and continued in service for months or years on
the basis of such fraudulently obtained appointment order cannot
claim or create equity in his favour or any estoppel against the
employer. A candidate who suppresses vital facts and is illegally
appointed cannot rely on estoppel to challenge his termination. So,
the principle of estoppel and waiver cannot be applied.
[emphasis supplied]
[32] We have also taken into consideration the submission of
learned senior counsel appearing for the petitioner that he was on
lien. This submission of the learned senior counsel cannot have any
force of law.
[33] Under FR-9 (13) "lien", is defined as under:-
"F.R. 9. (13) Lien means the title of a Government
servant to hold on regular basis, either immediately
or on the termination of a period or periods of
absence, a post, including a tenure post, to which he
has been appointed on regular basis and on which
he is not on probation:
Provided that the title to hold a regular post
shall be subject to the condition that the juniormost
person in the grade will be liable to be reverted to
the lower grade if the number of persons so entitled
is more than the posts available in that grade."
Here „post‟ means a civil post under the Government
Department because unless a person holds a civil post he is not a
government servant and lien is applicable only to Government
servant.
[34] Again, lien, in context of a case, refers to the temporary
release of an employee from their original i.e. parent organization to
another organization while retaining his original employment status
and benefits. Further, when lien is allowed to an employee it is only
for a specific period. At the end of lien period such an employee has
to return to his original organization. In the case on hand, the nature
of appointment of the petitioner was permanent and regular under
the union-respondents. So, it would be wrong to say that the service
of the petitioner under the Union-respondents was on "lien".
[35] In State of Rajasthan & Anr. Vs. S.N. Tiwari & Ors.
reported in (2009) 4 SCC 700 the Hon‟ble Supreme Court held as
follows:
"17. It is very well settled that when a person with
a lien against the post is appointed substantively to
another post, only then he acquires a lien against
the latter post. Then and then alone the lien against
the previous post disappears. Lien connotes the
right of a civil servant to hold the post substantively
to which he is appointed. The lien of a government
employee over the previous post ends if he is
appointed to another permanent post on permanent
basis. In such a case the lien of the employee shifts
to the new permanent post. It may not require a
formal termination of lien over the previous
permanent post.
18. This Court in Ramlal Khurana v. State of
Punjab [(1989) 4 SCC 99 : 1989 SCC (L&S) 644 :
(1984) 11 ATC 841] observed that: (SCC p. 102,
para 8)
"8. .... Lien is not a word of art. It just connotes
the right of a civil servant to hold the post
substantively to which he is appointed."
19. The term "lien" comes from the Latin term
"ligament" meaning "binding". The meaning of lien
in service law is different from other meanings in
the context of contract, common law, equity, etc.
The lien of a government employee in service law is
the right of the government employee to hold a
permanent post substantively to which he has been
permanently appointed. (See Triveni Shankar
Saxena v. State of U.P. [1992 Supp (1) SCC 524 :
1992 SCC (L&S) 440 : (1992) 19 ATC 931] )"
[36] In Dr. S. K. Kacker vs. All India Institute of Medical
Sciences & Ors. reported in (1996) 10 SCC 734, the Hon‟ble
Supreme Court held that a Government servant cannot have lien
simultaneously on two posts and appointment to a permanent post
in another Central Government Department/Office/State Government
entails termination of lien in the previous post.
[37] In view of the aforesaid legal position propounded, in the
context of the case, the writ petitioner of the present writ petition
cannot claim lien for the post he held under the TTWREIS. The
appointment of the petitioner under Union-respondents was
permanent as he was substantively appointed to the post of Junior
Weaver. To say it otherwise, the petitioner had been appointed
substantively to a permanent post under the Union-respondents as
Junior Weaver. With the appointment to a permanent post
substantively under the Union-respondents, the lien of the writ
petitioner in the previous post under TTWREIS was automatically
terminated. There is no quarrel in the proposition that a Government
servant on acquiring a lien on a regular post will cease to hold any
lien previously acquired on any other post. Law in this respect does
not mandate issuance of formal notice terminating the lien a
Government servant acquired for the post he held under the previous
employment.
[38] Having discussed the aforesaid factual and legal aspects,
we are of the considered view that there is no material in the present
writ appeal to interfere with the decision of learned Single Judge.
Accordingly, the decision of the learned Single Judge is upheld and
consequently, the writ appeal is dismissed being devoid of merit.
[39] While admitting this appeal, as an interim measure, this
court vide order dated 10.05.2022 passed in IA 01 of 2022 directed
the appellant to continue working as a Craft Teacher under the
respondents No. 7 and 8 till further directions are issued by this court
in the present appeal. As a corollary to the dismissal of the instant
intra-court appeal, the said interim order stands vacated.
Pending application(s), if any, also stand disposed of.
JUDGE JUDGE
SUJAY GHOSH Digitally signed by SUJAY GHOSH
Date: 2024.09.26 18:28:52 +05'30'
satabdi
