2014 Supreme(Tri) 129

IN THE HIGH COURT OF TRIPURA
S.C. Das, J.
Mrinal Kanti Datta - Appellant
Versus
State of Tripura - Respondent
W.P. (C) 203 of 2009
Decided On : 19-03-2014

Officiating service rendered by an employee, followed by confirmation, cannot be ignored for reckoning length of continuous officiation in determining seniority, unless a contrary rule is shown.

Headnote:

BLIND EDUCATOR - REGULARIZATION OF SERVICE - RETROSPECTIVE EFFECT - DISCRIMINATION IN SERVICE BENEFITS - SENIORITY AND PAY PROTECTION - RELEVANT PROVISIONS OF RECRUITMENT RULES AND THEIR INTERPRETATION - COURT'S ANALYSIS AND CONCLUSION.

Fact of the Case:

The petitioner, a B.Sc. (Hons) in Physiology, was offered the post of Blind Educator temporarily, in the scale of pay of Rs. 1,700-65-2220-70-2780-3980, vide Memo dated 29.7.92 (Annexure-1 to the writ petition) by the respondent No. 2 and accordingly, the petitioner accepted the offer. Appointment letter dated 14.10.1992 (Annexure-2 to the writ petition) was issued by the respondent No. 2 in the name of the petitioner and he joined the post on 19.10.1992. As per the terms of the offer of appointment, the petitioner was supposed to undergo any training if required by the Government and the services of the petitioner failing to successfully complete the training, for which he might have been deputed, even in three chances, shall be liable for termination. He was posted against a vacant post of Blind Educator as per the Memo of Appointment dated 10.10.1992. The Recruitment Rules for appointment to the post of Blind Educator in the institute of visually handicapped, under the Education Department of the Government of Tripura was made on 12.01.1973 and a copy of the Recruitment Rule annexed as Annexure-3 to the writ petition. The essential educational and other qualifications required for recruitment to the post were- (i) Graduate of a recognized University; (ii) One academic year training in education of blind conducted by the Government of India, Department of Social Welfare; (iii) Knowledge in Bengali. Item 13 of the Schedule to the Rule prescribes that TPSC was not required to be consulted in making the recruitment. The petitioner was possessing all the required qualification except that he did not have one academic year training in education of blind conducted by the Government of India, Department of Social Welfare. It is the case of the petitioner that at the relevant point of time qualified person with such training was not available and as such, one Smt. Sabita Debbarma and One Smt. Mridula Adhikari (Goswami) having no training qualification were recruited to the post of Blind Educator and thereafter, were sent for training at Government expenses and on completion of training, they were appointed vide Memo dated 11.09.1984 issued by the respondent No. 2. The services of Mridula Adhikari (Goswami) was regularized with effect from the date of ad-hoc appointment by a Memo dated 25.05.1998. Copy of Memo dated 11.09.1984 and 25.05.1998 annexed as Annexure-4 and 5 to the writ petition.

Finding of the Court:

The petitioner was appointed by the respondent No. 2, who was the competent authority, in a vacant post with a definite pay scale as a Blind Educator temporarily on ad-hoc basis and he continued his job without any interruption. He was lacking the qualification of one year training and in the Offer of Appointment, it was mentioned that he was supposed to undergo the training required by the department. He has undergone the training successfully when the department arranged/allowed him for undergoing the training. So, the petitioner was not with any fault of his own for regularization of his service. The principles laid down in Bhupendra Nath Hazarika (supra) wherein the case of Vijay Singh (supra), also referred, therefore, in my considered opinion, cannot be applied in the present case.

Issues: 1. Whether the petitioner is entitled to regularization of his service with retrospective effect i.e. from the date of his temporary/ad-hoc appointment dated 19.10.1992? 2. Whether the petitioner was discriminated against in respect of his service benefits while one year training in education of blind during the period from July, 2002 to May, 2003? 3. Whether the petitioner is entitled to get his seniority and pay protection?

Ratio Decidendi: The Supreme Court in the case of G.P. Doval (supra) in Para. 15 of the judgment has held that where officiating appointment is followed by confirmation unless a contrary rule is shown, the service rendered as officiating appointment cannot be ignored for reckoning length of continuous officiation for determining the place in the seniority list.

Final Decision: The writ petition is allowed. The petitioner is entitled to get regularization of his service with effect from the date of his joining i.e. from 19.10.1992. He is also entitled to get seniority, pay protection etc. from the date of his joining i.e. with effect from 19.10.1992. He is further entitled to get all service benefits during the course of his training with effect from July, 2002 to May, 2003. Respondents are accordingly, directed to give the benefits to the petitioner within 45 (forty five) days from today. The writ petition, accordingly, stands disposed of. Parties to bear their own cost.