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2016 Supreme(Tri) 51
IN THE HIGH COURT OF TRIPURA, AGARTALA
S. TALAPATRA, J.
Shri Biplabendu Roy – Petitioner
Vs.
The State of Tripura – Respondent
W.P. (C) No. 106 of 2015
Decided On : 26-02-2016
For the Petitioner:Mr. A. Bhowmik, Advocate.
For the Respondent:Mr. J. Majumder and Mr. P. Datta, Advocates.
The main legal point established in the judgment is the discretionary nature of absorption and the possibility of relaxation of qualifications for deputationists seeking absorption.
Headnote:
Deputation - Absorption in Borrowing Department - Finance Department - Tripura Road Transport Corporation - Law Officer - OSD - Recruitment Rules - Discretionary Power - Relaxation of Qualifications - [Deputation] - [Absorption in Borrowing Department] - [Recruitment Rules: No.F.IV3(3)TAX/86(PI) dated 09.10.2014] - The court discussed the petitioner's deputation, his request for absorption in the borrowing department, the creation of the post of Law Officer, and the recruitment rules. The court emphasized the discretionary power of absorption and the possibility of relaxation of qualifications for the petitioner.
Fact of the Case:
The petitioner sought absorption in the borrowing department, Department of Finance, after being deputed from the Tripura Road Transport Corporation to the Finance Department. The petitioner had been discharging his duties as the Nodal Officer (Legal) and in-charge Law Officer on a temporary basis. The respondents denied the petitioner's entitlement to the post of Law Officer based on recruitment rules.
Finding of the Court:
The court acknowledged the petitioner's satisfactory performance but emphasized the discretionary nature of absorption and the absence of a government policy or rule for absorption of deputationists. The court highlighted the possibility of relaxation of qualifications for the petitioner and directed the respondents to consider the petitioner's representation for absorption within 30 days.
Issues: The main issue was whether the petitioner could claim absorption in the borrowing department as a matter of right based on his long period of deputation and satisfactory performance.
Ratio Decidendi: The court held that the power of absorption is discretionary but coupled with the duty not to act arbitrarily. It emphasized the absence of a government policy or rule for absorption of deputationists and the possibility of relaxation of qualifications for the petitioner.
Final Decision: The court directed the respondents to consider the petitioner's representation for absorption within 30 days and emphasized the discretionary nature of absorption and the possibility of relaxation of qualifications for the petitioner.
1. By means of this writ petition, the petitioner has urged this Court for directing the respondents to absorb him in the borrowing department, Department of Finance and to extend him all financial benefits for such absorption. The petitioner has also urged to restrain the respondents from filling up the post of Law Officer under the Finance Department by a writ of prohibition.
2. The facts are mostly admitted. The petitioner while working as the Senior Mechanic in the loaning department, the Tripura Road Transport Corporation, the TRTC in short, was deputed to the Finance Department by the communication under No.2(24)TRTC/DMB (T)/Vol-II/9293/312 dated 23.10.2003. In terms of the said communicated dated 23.10.2003, the petitioner joined in the office of Commissioner of Taxes under the Finance Department in the forenoon of 01.11.2003. The petitioner had been discharging his duties to the entire satisfaction of the authority. As corollary, by the office order dated 29.11.2004, Annexure-P/8 to the writ petition, the petitioner was asked to function as the Nodal Officer (Legal) in additional to his normal duties on a purely temporary basis until further order. For such additional assignment, a monthly honorium of Rs.200/- be entitled to the petitioner. From 29.11.2004 onwards, the petitioner had been working as the Nodal Officer (Legal) in the office of the Commissioner of Taxes and was drawing his pay and allowances at the rate which he would have been received as the Senior Mechanic in the TRTC. However, he used to draw Rs.200/- as per order for discharging responsibility of the higher post. The petitioner has been nourishing general expectation of being absorbed in the borrowing department.
3. In the year 2007, there was a proposal for creating a post of Officer on Special Duty (OSD), but no such post was ever created at least no record has been produced to show that such post was ever created. As such, there had been no occasion to consider absorption of the petitioner against the post of OSD. The petitioner has referred one note of the Commissioner of Taxes dated 08.11.2006, wherefrom a proposal for upgradation and the perspective of the said proposal can be gathered:
"However, considering the work volume and gravity of the situation, the Legal Cell of this establishment need upgradation so that the officer concerned may deal with Advocate and Law Department in befitting manner. A law graduate should look after the section. On examination of record of Shri Roy, it appears that he possesses BSc, LLB Degrees. Apart from that he is going to complete Post Graduate Degree in English from IGNOU. Over and above to this, he has acquired sufficient experience through the works rendered by him in the Legal Cell of the department. Due to the commitment, sincerity, legal knowledge his position may be upgraded so that he may deal all cases in a befitting manner.
Therefore, in view of the above, it is proposed that he may be appointed as OSD (Law) in the Scale of Rs. 775-15-790-16-950-20-1130/- in the establishment."
4. It appears from the records as produced that no such post was ever created. However, by the order under No.F.IV8(159)TAX/03(P)/7379-90 dated 08.08.2014, Annexure-P/10 to the writ petition, the respondent No.2 had designated the petitioner as in-charge Law Officer/Nodal Officer. However, in the order dated 08.08.2014, it has been noted that the re-designation is purely on a temporary basis and shall be in force until the finalisation of the recruitment of Law Officer. The petitioner at the time of filing the writ petition on 23.03.2015 had been working as the In-charge Law Officer. It is to be noted that the Managing Director of the TRTC had sought repatriation of the petitioner by his letter dated 09.07.2012, Annexure-P/12 to the writ petition, as the TRTC was suffering from shortage of staffs. But the Commissioner of Taxes did not release the petitioner.
5. There is no dispute that the petitioner was granted the special h
