Partha Das v. State Of Tripura And 2 ORS

IN
THE
HIGH
COURT
OF
TRIPURA
A
G
A
R
T
A
L
A
W.P(C)
No.71
of
2010
Shri
Pantha
Das,


   









 
  


 




 Petitioner
-
V
e
r
s
u
s
-
1.
The
State
of
Tripura,
       !" 

 

"  #       

 2.
The
Director
of
Higher
Eduction,
!"

 

 3.
The
Principal,

 $
      !" 

 % 
 


  

Respondents
B
E
F
O
R
E
THE
HON'BLE
MR.
JUSTICE
S.
TALAPATRA
&    :
'' ( )! '
!   &

 :
' ( )      :
*++,*+,-   ! :26.02.2015
.

"/0     :

YES NO

√

[2] JUDGMENT
&
ORDER
1 " 
  
           

      

   !   "  ) 
 

 !

" "   
  "

 23 4 

!  "
     %&53,46&$%3 4789 *2+:*+++;

6<7 

  

  
= 


   *9+:*++< ;

69     +<+2*++9;

687*          +<+9*++8 ;

6,,    

    
 ""

  

 %&,+3:8,46 >7#7+8 ,+,**++8;

6,:     

 ""

   !% ,:+,*+,+ ;

6,-     [2]   
  "
 "      

   

   
   .

      ?

 !  " 

" !" 

 )   *<+9,889 ;

)

  

    '  

  #
)  




 

  ?
5-++6,*:++76  +,+-*++* )    ,2,,*++*    @







  ?
<2-+6,:+++76+,+-*++* "




! 
3?!
 43""4?


*++2 

,<,,*++2   

!  


  .

    

   
  &6"

 $
   

    

 



[3] $
       

   "

"  

 ) 

   !  ""

    

"

 "  "



  

   
  





 
  0 "
   ""  "

)

 !  ""

 

   
&6"

$
  


 

?
<9++6,-,++76)     ,<+8*++2 ;

6-     [3] 

   


!  %  

$
    3%$ 4 ' 
 # "

 ?
  !  " !"  $  

      "

   !" 



      )
)  

 $
   

  )         ,:+<*++<     
 !

   !

&?**3$43 43*4

 

 ) !  "  ""

      *9+:*++< ;

69    0 ; 

  
 &6"

$
    )
!

 
  


  
 

"    "
          *2+:*+++ ;

6<        
      ;

   !

&?**3$43 43,4& 




   
  

 3 4)  

  ! 
3?!
 43-""4?


,888;

6<       ! 
 A



[4] "The
substituted
provision
of
FR
22(I)(a)(1)
shall
be
applicable
in
cases
of
promotion/appointment
to
another
post(a)
with
higher/same
pay
scale,
provided
such
posts
carry
duties
and
responsibilities
of
greater
importance
than
those
attached
to
the
post
held
by
him
before
promotion
as
per
Recruitment
Rules
Date
of
Next
Increment
(DNI)
along
with
the
scope
for
exercising
option
shall
be
regulated
as
per
provisions
of
FR
22(I)(a)(1)."

    

     6:    - "" ?




 !         *2+:*+++ ;

6<           


A "The
post
outside
cadre
services
who
were
directly
recruited
in
the
unrevised
pay
scale
of
Rs.2100C3000(SL)C5000/C
revised
to
Rs.7800C 15100/C
shall
get
the
revised
pay
scale
of
Rs.10000C15100/C
as
CASC1
after
completion
of
4(four)
years
of
service
in
the
respective
post
as
applicable
to
the
cadre
service."


 !
    !

   

" 

   



  ?
,++++6,-,++76  "

   23 4  
 
! 
  6, )   

  


#
    [4]
' ' ( )  
   


        

)"    ) " 
 

 ! 
3?!
 43-""4?


 ,888 
)  

!   

 
  
! 
 



)  "

!





  ?
*,++6:+++76 3>46-+++3!
  ?
<9++6,-,++4


   !





  ?
,++++6



[5] ,-+++76
  "

 23 4 

!    
 ! 


     
! 
 #   
)"  
   
)

    
   
 




  
 

)  
    "

  !
6B6!
  
   )  " ) 
  "





)

  !
&?** 3$43 43,4 &?**3$43 43*4 !     [5]

' '

( )

 
   


     

)"  
 


  "  (  !
   ) 


   ! 
 3?!
  4 3- ""4 ?


 ,888 1  

   ,+,**++8 ;

6,:       
) "

A 5.
In
reply
to
the
averment
made
in
ParaC5
and
6
of
the
Demand
Notice,
it
is
informed
that
the
question
of
deprivation
of
your
client
for
allowing
CAS
is
not
acceptable
as
the
revision
of
pay
of
the
State
Government
employees
has
notionally
came
into
force
with
effect
from
01.01.2006,
wherein,
Sri
Das,
ForeCman
Instructor
now
reCdeployed
at
Tripura
Institute
of
Technology,
had
opted
to
come
under
purview
of
revised
ROP
Rules,
2009
and
hence
his
benefit
of
ACP
in
place
of
CAS
required
to
be
considered
according
to
the
provision
of
ROP
Rules,
2009.
6.

In
reply
to
the
averment
made
in
ParaC7
of
the
Demand
Notice,
it
is
informed
that
the
representation
of
your
client
for
getting
CAS
benefit
on
completion
of
4(four)
years
of
services
as
ForeCman
Instructor
dated
15.01.2009
has
been
examined
by
the
Department
in
due
course
and
reply
has
also
been
communicated
to
the
Principal
(I/C),
Tripura
Institute
of
Technology
vide
letter
No.12(204)CDHE/CONF/09
dated
07.08.



[6] providing
ACPC1
according
to
the
provision
of
ROP
Rules,
2009.
Aforesaid
decision
has
been
taken
by
the
Directorate
of
Higher
Education
on
the
basis
of
his
option
to
come
under
purview
of
ROP
Rules,
2009
and
enjoying
the
benefits
of
pay
revision
according
to
the
said
pay
Rules.


[6] 
 
 
  ) !  )  

    **,**++8 ;

6,2    1

 ,:+,*+,+ ;

6,-         
 )   

""

          
 
  

!     ) 

  ) 
     **,**++8  $

  
   ' ( )

 
  
 
  


 # 

  Kirba
Lomi
&
Anr.
vs.
State
of
Arunachal
Pradesh,

   2012
(5)
GLT
524
   !
   
 ) 


  !         )  (   ) 
)
=  ""   

 

 
  

 C
 


  )   = 
    

  
            !
   

6   


  6, )' ( )  
  
 $Union
of
India
and
others
vs.
Tushar
Ranjan
Mohanty,   (1994)
5
SCC
450

; 
  A 12.
In

   

          ,
three
petitioners

    !

  !

"  

 #$ %  ,
who
were
diplomaCholders,
were
working
as
SubCDivisional
Officers
on
regular
basis
under
the
unamended
Rule
6&'(
of
the
Punjab
Service
of
Engineers,
Class
I,
Public
Works
Department



[7] (Irrigation
Branch)
Rules,
1964.
They
were
eligible
for
promotion
as
Executive
Engineers
in
Class
I
service
despite
the
fact
that
they
did
not
possess
a
degree
in
engineering.
By
the
Notification
dated
22C6C1984,
Rule
6&'( was
amended
and
it
was
provided
that
a
degree
in
engineering
was
an
essential
qualification
for
promotion
of
Assistant
Engineers
(Irrigation
Branch)
to
Class
I
service
and
thereby
the
petitioners
were
rendered
ineligible
for
promotion
to
the
post
of
Executive
Engineer
in
Class
I
service.
The
Amendment
was
challenged
in
this
Court
by
way
of
a
petition
under
Article
32 of
the
Constitution
of
India.

This
Court
came
to
the
conclusion
that
the
retrospective
effect
given
to
the
amendment
was
violative
of
Articles 14
and
16 of
the
Constitution
of
India
on
the
following
reasoning:
It
is
well
settled
that
the
power
to
frame
rules
to
regulate
conditions
of
service
under
the
proviso
to
Article 309 of
the
Constitution
carries
with
it
the
power
to
amend
or
alter
the
rules
with
a
retrospective
effect:
) #   * !

!  &( ,  -

 . /   * !   +

  &- ( , 0" .   12& ( 3,
and
45  
!67!0   &- ( 
It
is
equally
wellCsettled
that
any
rule
which
affects
the
right
of
a
person
to
be
considered
for
promotion
is
a
condition
of
service
although
mere
chances
of
promotion
may
not
be.
It
may
further
be
stated
that
an
authority
competent
to
lay
down
qualifications
for
promotion,
is
also
competent
to
change
the
qualifications.
The
rules
defining
qualifications
and
suitability
for
promotion
are
conditions
of
service
and
they
can
be
changed
retrospectively.

This
rule
is
however
subject
to
a
well
recognised
principle
that
the
benefits
acquired
under
the
existing
rules
cannot
be
taken
away
by
an
amendment
with
retrospective
effect,
that
is
to
say,
there
is
no
power
to
make
such
a
rule
under
the
proviso
to
Article 309
which
affects
or
impairs
vested
rights.
13.
Finally
this
Court
considered
the
effect
of
retrospective
legislation
on
the
vested
rights
of
the
affected
persons
in
P.D.
Aggarwal
and
Ors.
v. State of U.P. :
[1987]
3
SCC
622.
Under
the
U.P.



[8] temporary
vacancies
became
members
of
the
service
and
were
entitled
to
seniority
on
the
basis
of
continuous
length
of
service.
The
rules
were
amended
in
the
years
1969
and
1971
wherein
it
was
provided
that
the
Assistant
Engineers
would
only
become
members
when
they
are
selected
and
appointed
against
the
quota
meant
for
them
and
their
seniority
would
be
determined
only
from
the
date
of
order
of
appointment
in
substantive
vacancies.
These
amendments
were
made
with
retrospective
effect
thereby
taking
away
the
vested
rights
of
the
Assistant
Engineers
appointed
against
temporary
posts.
The
High
Court
held
the
retrospective
amendment
of
the
rules
to
be
arbitrary
and
unconstitutional.

This
Court
upheld
the
judgment
of
the
High
Court
on
the
following
reasoning:
It
has
been
urged
that
Government
has
the
power
to
amend
rules
retrospectively
and
such
rules
are
quite
valid.
Several
decisions
have
been
cited
of
this
Court
at
the
bar.
Undoubtedly,
the
Government
has
got
the
power
under
proviso
to
Article
309
of
the
Constitution
to
make
rules
and
amend
the
rules
giving
retrospective
effect.
Nevertheless,
such
retrospective
amendments
cannot
take
away
the
vested
rights
and
the
amendments
must
he
reasonable,
not
arbitrary
or
discriminatory
violating
Articles
14
and
16
of
the
Constitution....

As
has
been
stated
hereinbefore,
the
Assistant
Engineers
who
have
already
become
members
of
the
Service
on
being
appointed
substantively
against
temporary
posts
have
already
acquired
the
benefit
of
1936
Rules
for
having
their
seniority
computed
from
the
date
of
their
becoming
member
of
the
service.
1969
and
1971
Amended
Rules
take
away
this
right
of
these
temporary
Assistant
Engineers
by
expressly
providing
that
those
Assistant
Engineers
who
are
selected
and
appointed
in
permanent
vacancies
against
50
per
cent
quota
provided
by
Rule
6
of
the
Amended
1969
Rules
will
only
be
considered
for
the
purpose
computation
of
seniority
from
the
date
of
their
appointment
against
permanent
vacancies.



[9] in
the
quota
set
up
for
this
purpose
by
the
Amended
Rule
6....
These
amendments
are
not
only
disadvantageous
to
the
future
recruits
against
temporary
vacancies
but
they
were
made
applicable
retrospectively
from
1C3C1962
even
to
existing
officers
recruited
against
temporary
vacancies
through
Public
Service
Commission.
As
has
been
stated
hereinbefore
that
the
government
has
power
to
make
retrospective
amendments
to
the
Rules
but
if
the
Rules
purport
to
take
away
the
vested
rights
and
are
arbitrary
and
not
reasonable
then
such
retrospective
amendments
are
subject
to
judicial
scrutiny
if
they
have
infringed
Articles
14
and
16
of
the
Constitution.



































[Emphasis
added]

[7]  &"  !
"

     Union
of
India
and
others
vs.
Tushar
Ranjan
Mohanty 

)

      " 


  

    
 
! 

 !
  :+8 
     
      " 

  


 !   
 ! 

  
  
 "  " 
 " "

 )

  




 )  =

    
  " 
 !     
 
!  
   )   )   

"" 
 !  #! 
 

 


 

 )  =  ; 


  ) (  )  "" 
 ! 
 
   
    "

(
  

  

!
     :+8   
  "


  !
  

  

) 
 =  ; 






[10]   !
  ""  "     ( 

 )  
  


 !  [8] 


 )?0?


*++8
  !) !     )  



)!)
)?

2?

 ,+  

   ! 
 3?!
  4 ?


 *++8   ! 
 A "Those
Government
employees
who
had
completed
10
years
of
service
before
01.01.2006
but
had
not
got
or
consumed
any
benefit
of
promotion/scale
upgradation
under
revised
pay
rules
framed
in
the
past
by
the
State
Government
from
time
to
time,
they
will
now
be
provided
the
benefit
of
1st
ACP
from
the
date
of
his
coming
over
to
the
revised
pay
structure
under
the
said
sub
Rule...."
 "

! 
)"

   6 *   6* 
 


   

  
  

  '!   
 "


23 4  
 
!       &6"

 $
   ,5+8*++9       

   ! 
 3?!
 4?


*++8
" ) 

 


! 



 

 

 ! 
 3?!
  4 ?


 ,888
 
      !  

  
!)
 ""


!
  

  ! 


D  
  !   
 ?!
  ?


 *++8   "   &  !  
 !       ?!
   ?


 *++8  !
    

  
) (   ! 

   



[11] Union
of
India
vs.
Tushar
Ranjan
Mohanty.

%


  


)!)?

,+324?!
 ?


*++8 [9]

1 

= 
  



 

     

 

)   ) 
 

   ! 
 3?!
  4 3- ""4 ?


,888$
  ")       6:
 ""?




)     *2+:*+++ 
! 
&6"

$
 
 )

   
 !
 

    

     
  
!        !




  ?
*,++6:+++73>46-+++3!
  <9++6,++++76  
 

 )

   ?
,++++6,-,++76 6,  "

   23 4  
 
!   !   
   "

 
  
!     
        !    
  &6"

 $
 





    
!   
  
  "

 
  
! 


  

6    


 !  
 ""




23 4 

!  
   "

(      
"


 
)  

!   

6    

 ) "

 E   
 ! 
@

  
! "  )




 ?
,++++6,-,++76

 
 
  !  
 ! 
     $
 

 

  



[12]  )!  
 !


 ! 
!   
 )  


 

  ?
<9++6,-,++76 !
 [10]

  

)    
  
 )

   
    "

    


!  
.

  3'  

4





)  ; "
 !
&?**3$43 43,4 


"

   
"

   
)     &6"

 $
      

"   !"   ""   

   ! 

""


 

 )   "         ,<+8*++2 ;

6-             


 

 !  ""


"" 


) !)  ;

 

&?**3$43 43,4$


( &?**6 
)    !

 !)  ;

""  &?**3$43 4  !"$ ' 
  &   )   %     %&*3846$$$75,   *++:,85,  &*3<*46$$$75*   +5,*,85*  !   
 

  

          

          

! "  #!$ %  

     

   

     

   

  $  &'



[13]  $ 
 )   

  

 "   "@
 "

 &??3 6,4 

?


*:   *+,- 

6-:   )  !

  


F  !  ""

""


  

) ! !"
!

 
 


 )   )       

 $      ""

 ""   




 )  ;G "




H

"

) ;  &?**6 &?**3$43 43$4
)C 
      

      
 !     )  !"
!

 [11]

 

  )" 

 


  
"  0 





    
    
   )  !

" 
     
     


    @


  
&6"

$
  )  ; &?**3$43 43*4#     
"   
    
"
 
"

 #!


)



JUDGE