IN THE HIGH COURT OF TRIPURA

A G A R T A L A

WP(C)No.854 of 2021

Sri Pintu Chowdhury,

son of late Amalendu Chowdhury,

resident of Village & P.O. Anandanagar,

Agartala, District : West Tripura, Pin : 799004

………… Petitioner(s)

– V e r s u s –

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),

Weavers’ 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. Assistant Director,

Weavers’ Service Centre, Gurkhabasti,

Agartala, West Tripura, Pin - 799006

5. Deputy Director (Head of Office),

Weavers’ 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 Institutions Society,

under Tribal Welfare Department,

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Government of Tripura,

represented by its Member Secretary,

Gurkhabasti, Agartala, West Tripura,

Pin - 799006

8. Member Secretary,

Tripura Tribal Welfare Residential

Educational Institutions Society,

Tribal Welfare Department,

Government of Tripura,

Gurkhabasti, Agartala, West Tripura,

Pin - 799006

………… Respondent(s)

For Petitioner(s) : Mr. R. Datta, Adv.

For Respondent(s) : Mr. B. Majumder, Asst. S.G.

Mr. S. Saha, Adv.

Date of Hearing and

Judgment & Order : 04.02.2022

Whether fit for reporting : YES

HON‟BLE MR. JUSTICE S. TALAPATRA

JUDGMENT & ORDER (Oral)

Heard Mr. R. Datta, learned counsel appearing for the petitioner as

well as Mr. B. Majumder, learned Asst. S.G. appearing for the respondents No. 1

to 5 and Mr. S. Saha, learned counsel appearing for the respondents No.7 and 8.

There is no representation for the respondent No.6.

2. By means of this petition filed under Article 226 of the Constitution

of India, the petitioner has challenged the order

No.WSC/GAU/Admn.1(4)/19/Vol.II/2236 dated 16.11.2021 [Annexure-24 to the

writ petition] whereby the service of the petitioner in the post of Junior Weaver,

Group-C (non-gazetted) has been terminated with immediate effect. The

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petitioner has also challenged the order under No.WSC/AGT/P-135/21/1008

dated 24.11.2021 [Annexure-25 to the writ petition] issued by the respondent

No.5. By the said order, the petitioner was relieved from the service on

24.11.2021 [afternoon] pursuant to the order of termination dated 16.11.2021.

Further, the petitioner has urged this court to reinstate him in service with all

consequential benefits and arrears of salary.

3. It has to be noted at the outset that by the interim order dated

29.11.2021, the respondents were directed to allow the petitioner continue in his

service and hence, the petitioner is in service notwithstanding the order of

termination dated 16.11.2021.

4. It is the second round of litigation by the petitioner. In the year

2017, the petitioner filed a writ petition being WP(C)No.1240/2017 [Pintu

Chowdhury versus Union of India and Others]. In that case, the petitioner had

challenged the denial of age relaxation on considering him as the government

servant. There is no denial that the petitioner was serving as the Craft teacher in

Tripura Tribal Welfare, Residential Educational Institutions Society after his

regular selection. It is not in dispute that the said Society is under pervasive

control of the State Government. This court having prima facie materials had

occasion to observe as follows :

“5. In the given facts and circumstances, there appears no

justification to oust him from the post which he was holding

for all practical purposes after his regular selection and, at

least, as he was serving in a Society which is under pervasive

control of the Government having trappings of the Govt.

servant entitled for age relaxation up to 40 years to participate

in the selection process. Though the stay application was filed

by him, no interim order was passed by the court at the

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relevant point of time but as he is out of employment at this

moment, to protect his right, he need indulgence of this Court

for interim protection pending hearing of the writ petition.

6. Fresh notices need not be issued since the respondents are

duly represented. After having heard counsel for the parties, I

am prima facie of the view but without expressing any opinion

on merit that the petitioner was never at fault and he was

earlier serving in a Society which is under pervasive control of

the government and he left that job because he was offered

better appointment to the post of Junior Weaver in Weavers

Service Centre, Ministry of Textile, Govt. of India, after going

through the process of selection and if he is not being allowed

to continue pending outcome of the writ petition his right will

certainly jeopardize and needs indulgence of this court and the

order impugned dt.30.8.2017 deserves to be stayed pending

hearing of the writ petition. It is also informed that no

incumbent has been offered appointment after passing of the

order impugned dt. 30.08.2017.

7. Accordingly, it is ordered that operation and future effect of

the order dt.30.8.2017 Annexure-12 shall remain stayed and I

direct the respondents to allow the petitioner to join on the

post of Junior Weaver which he was holding prior to passing of

the order impugned dt.30.8.2017 until further orders.”

5. At the time of disposing the said writ petition, this court had

occasion to observe as follows :

“11. Admittedly, no hearing was granted to the petitioner

before passing the said order. Apart from the impugned order

being stigmatic and punitive, even the issue of age relaxation

in favour of the petitioner was not free from doubt. The

concerned department had to seek clarifications from the

Government of Tripura as well as DoPT. Admitted position is

that the petitioner was employed in a school which was run by

an organization, which was constituted by the State

Government for the special purpose of providing quality

education to tribal students in remote areas and which

organization was fully funded and administratively controlled

by the State Government. The terms and conditions of service

and other service rules governing the employees of the Society

were adopted from the State Government model. Crucial

question therefore would be in such a situation can the

employee of such a Society claim age relaxation by extension

of the provision on the premise that his status was akin to that

of a Government servant. Division Bench of Punjab & Hariyana

High Court, in case of Sukhwinder Singh(supra) has taken

such a view. However, I would not like to conclude this issue

in the present petition because for the reasons noted above,

the impugned order is required to be set aside on the ground

of non-granting of hearing.

12. There are other reasons why in the present case such a

hearing would be necessary. As noted, the petitioner had

resigned from his permanent post in a semi Government

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organization. The petitioner, thus, had reasonable assurance

of service tenure in his previous employment also. Having

resigned from such a secured job, can the petitioner be told a

year and a half after his appointment that his initial

engagement itself was invalid since he was over aged. The

petitioner can legitimately argue that if he had not made any

misrepresentation about his age or his service, it would be

inequitable to allow the department to terminate his service

which would render him jobless from his previous employment

also. Further, I find a reference in the affidavit-in-reply filed

on behalf of the respondent Nos.1 to 4 that the petitioner had

produced a certificate of belonging to OBC. However, that

certificate was produced after time permitted for such purpose

and therefore, not taken into account. It appears that

independently of his status as being in Government service or

equivalent to Government service, as an OBC candidate, he

would be entitled to age relaxation. If that be so, should the

service of the petitioner be terminated when on the strength

of his OBC status he would any way, be within the age limit,

simply because he could not produce such certificates within

the time.

13. All in all, all these aspects need to be gone into at the first

instance by the department. For such purpose, impugned order

dated 30.08.2017 is set aside. The petitioner shall make a

detailed representation to respondent No.2, in which he will be

allowed to take all his contentions factual as well as legal.

Such a representation shall be made within a period of 8

(eight) weeks from today. The respondent No.2 shall consider

such representation and pass a speaking order there on. If

such order is in any manner adverse to the petitioner, it would

be open for him to file a fresh petition challenging the same on

all grounds.”

6. It may be noted that by the order dated 30.08.2017 as referred

above, the petitioner was terminated from his service as Junior Weaver. But

since, the said order has been set aside, the petitioner continued to serve in the

said capacity. Thereafter, as would be evident from the impugned order dated

16.11.2021 [Annexure-24 to the writ petition] that the petitioner has been given

the opportunity to submit a representation, which was filed on 16.09.2020,

requesting the competent authority to allow him age relaxation for appointment

to the post of Junior Weaver at par with the Government servant as his status as

an employee under Tripura Tribal Welfare, Residential Educational Institutions

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Society [TTWREIS], inasmuch as TTWREIS is 100% financed and managed by

the Government of Tripura. The petitioner had referred a judgment of the

Division Bench of the Punjab and Haryana High Court and Delhi High Court in

the representation covering the similar issues. On the purported examination of

the said representation dated 16.09.2020, the Director, East Zone of Weavers’

Service Centre had turned down the said representation by holding that the

employees of TTWREIS cannot be treated as the Government servants within

the meaning of Rule 2(h) of CCS(CCA) Rules, 1965. It has been noted in the said

order dated 16.11.2021 that the said position has been confirmed by the

Additional Secretary to the Government of Tripura, Tribal Welfare Department. It

has been observed in the said order as follows :

“Moreover, relaxation of upper age limit for G overnment

servants is applicable only to the Central Government Civilian

Employees holding civil posts and the same is not applicable to

be personnel working in autonomous/statutory bodies, P ublic

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 No.3 of OM No. 15012/2/2010-

Estt(D) dated 27th March, 2012.”

While passing the said order dated 16.11.2021, the judgments of the

Punjab and Haryana High Court and the Delhi High Court have been discarded

on observing that those are not germane to the context.

Having observed thus, the service of the petitioner has been terminated

again by the said order dated 16.11.2021 with immediate effect.

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By the order dated 24.11.2021, the petitioner was relieved from his

service pursuant to the order dated 16.11.2021. As stated earlier, the petitioner

has challenged both the orders.

7. Mr. R. Datta, learned counsel appearing for the petitioner has

submitted that by the memorandum dated 08.11.2010 [Annexure-1 to the writ

petition], the petitioner was appointed as the Craft Teacher by TTWREIS.

Accordingly, the petitioner joined the said post and served the respondents No.7

and 8 to their satisfaction. The petitioner was attracted by the advertisement of

the Central Employment Exchange as published in the Employment News dated

1

st

August, 2015 [Annexure-2 to the writ petition]. By the said advertisement,

applications were invited for appointment to the post of Junior Weaver in the

scale of pay of Rs.5,200-20,200/- with Grade Pay of Rs.2,800/-. The petitioner

had applied through the proper channel. The petitioner obtained the no-

objection Certificate from the competent authority [Annexure-7 to the writ

petition] for purpose of appearing in the selection process for the post of Junior

Weaver.

8. There is no dispute that the petitioner was appointed in the said

post of Junior Weaver by the memorandum dated 18.01.2016 [Annexure-8 to

writ petition]. Accordingly, the petitioner had tendered technical resignation from

his service for joining the new post. The petitioner was relieved from his service

by the release order dated 28.01.2016 [Annexure-9 to the writ petition] to

enable him join the new service as Junior Weaver in the Weavers’ Service

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Centre, Agartala under Ministry of Textiles, Government of India. Pursuant to the

said release order dated 28.01.2016, the petitioner had joined the said post on

29.01.2016 [forenoon] with all testimonials. Accordingly, the order dated

09.03.2016 [Annexure-11 to the writ petition] was issued accepting the joining

of the petitioner and placing him on probation for two years from the date of his

appointment.

9. But all on a sudden, by the order dated 30.08.2017 [Annexure-12

to the writ petition] the respondent-Weavers’ Service Centre, Agartala had

apprised the petitioner that the Tribal Welfare Department, Government of

Tripura has by a communication confirmed that the employees working under

TTWREIS do not bear the status of Government servants within the meaning of

Rule 2(h) of CCS (CCA) Rules. On the basis of the said clarification, the matter of

granting relaxation of age by considering the petitioner as the Government

servant was placed for opinion of the Department of Personnel and Training,

Government of India. The DoPT had clarified the matter as under :

“As clarified by Tribal Welfare Department, Govt. of Tripura,

the employees of 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 up to the age of 40 years for Government

servants cannot be applied in the case of employees working

under in Tripura Welfare Residential Educational Institutions

Society [TTWREIS] Appointment of Shri Pintu Chowdhury,

while working, in EMR School, run by TTWREIS, has not legal

sancity.”

10. In view of the said opinion, the conduct of seeking relaxation by

the petitioner on the basis of his appointment as the Craft teacher was stated to

be the act of major misconduct and the petitioner was terminated from the

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service. The said order dated 30.08.2017 was set aside by this court remitting

the matter back for reconsideration of the respondent No.2 in particular, after

affording opportunity of hearing to the petitioner. As stated earlier, by the order

dated 16.11.2021 [Annexure-24 to the writ petition], the respondents have again

terminated the petitioner with immediate effect and consequentially, the

petitioner was relieved from his service by the order dated 25.11.2021.

11. The respondents No.1 to 5 have filed their reply on 20.01.2022

stating inter alia that the petitioner was 38 years 8 months on the day of filing

the application but the required age for the post was 30 years, relaxable upto 3

years for OBC candidates and 5 years for SC candidates against the posts

reserved for them as per extant Government guidelines. Upper age limit was

further relaxable upto 10 years for government servant as stipulated in the

notified recruitment Rules [Annexure-R/1 to the reply filed by the respondents

No.1 to 5]. In this regard, there is no dispute. Therefore, unless the relaxation of

age was granted to the petitioner for being the government servant, he was not

eligible to be appointed as he had crossed the maximum age limit. After the

petitioner was placed on probation, the Weavers’ Service Centre, Guwahati

received a complaint from one Utpal Sutradhar stating that the relaxation of age

as granted to the petitioner as the Government servant is untenable as the

petitioner cannot be stated of holding a government post inasmuch as where the

petitioner was serving before making the application for appointment to the post

of Junior Weaver is not a Government Department but an Educational Society.

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12. In that backdrop, the Deputy Commissioner, Handlooms,

Government of India had referred the matter for clarification whether the

employees of TTWREIS bear the status of Government servants or whether they

could avail age relaxation admissible to the Government employees. The Tribal

Welfare Department, Government of Tripura clearly opined that employees of

TTWREIS do not bear the status of the Government servant within the meaning

of Rule 2(h) of the CCS(CCA) Rules. Thereafter, the Deputy Commissioner,

Handlooms placed the matter for opinion of the Department of Personnel and

Training [DoPT in short]. The DoPT had opined that the petitioner cannot be

granted the relaxation as he was not a Government servant and accordingly, the

termination followed. Hence, there is no illegality. The writ petition is devoid of

merit and liable to be dismissed.

13. The opinion of the Tribal Welfare Department, Government of

Tripura is available in the communication dated 30.03.2017 [Annexure-R/6 to

the reply filed by the respondents No.1 to 5]. The respondents No.7 and 8 filed a

separate reply by stating inter alia in para-13 as follows :

“13. That, with respect to paragraph No.14, it is stated that

the Tripura Tribal Welfare Residential Educational Institutions

Society (in short TTWREIS) was established under the

Societies Registration Act, 1860 under the pervasive

administrative control of the Tribal Welfare Department,

Government of Tripura. The employees of TTWREIS Society

are governed by the relevant rules of State Govt. as adopted

from time to time by the Society through its Board of

Governors meetings and it has separate Bye -Law for conduct

of business and management of the affairs of the Society and

for furtherance of its objects. The prime object of the Society

(TTWREIS) is to establish, maintain, control and running

Ekalavya Model Residential Schools, Ekalavya Model Day

Boarding School, Residential School, Ashram Schools in the

State of Tripura. It receives 100% recurring grant from

National Education Society for Tribal Students (NESTS),

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Ministry of Tribal Affairs, Govt. of India to run Ekalavya Model

Residential Schools (EMRSs) and Ekalavya Model Day Boarding

School (EMDBS) and 100% grant by way of „Grants to Ashram

Schools‟ to run Ashram Schools and Residential School in the

State of Tripura. The employees of TTWREIS are being paid

salaries at par with the employees of State Government. All

the EMR Schools are affiliated to the Central Board of

Secondary Education (CBSE) and the schools are also covered

under Right to Education Act, 2009. All the Teaching & Non -

Teaching posts under the TTWREIS have been created with

due concurrence of the Finance Department, Government of

Tripura. The TTWREIS has also adopted the Tripura State Civil

Services (Conduct) Rules, 1988 and Tripura State Civil Services

(Leave) Rules, 1986. It is pertinent to mention that the

TTWREIS does not bear any proprietary status and it is a non-

profitable organisation working effortlessly for establishing

quality education and also to ensure all round development of

tribal students so as to enable them to access t he best

opportunities in education and to bring them at par with the

general population.”

14. Mr. R. Datta, learned counsel appearing for the petitioner has

submitted that it will be apparent from the reply filed by the respondents

No.7and 8 that TTWREIS is under the pervasive administrative control of Tribal

Welfare department, Government of Tripura, even though the said Society is

managed by a separate Bye-Laws for conduct of business and management of

the affairs of the society. It receives 100% recurring grant from National

Education Society for Tribal Students Ministry of Tribal Affairs. According to Mr.

Datta, learned counsel, the said Society is the extension of the Government

Department and hence, its employees are entitled to be deemed as the

Government servants, irrespective of what the Additional Secretary to the Tribal

Welfare Department, Government of Tripura has opined. In support of his

contention, Mr. Datta, learned counsel has referred a decision of the Punjab and

Haryana High Court in Sukhwinder Singh versus State of Punjab and

Another [the judgment dated 26.03.2013 delivered in Civil Writ Petition

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No.19589/2012]. In Sukhwinder Singh (supra) the Punjab and Haryana High

Court was considering whether denial of relaxation of age to the employees of

Corporation, Boards and Public Sector Undertakings is constitutionally valid or

not. The said question has been answered in the following manner :

“9. Indisputably, while filling up the Faculty positions in the

Medical College, the object of the Government and the Union

Public Service Commission would be to select the best

persons. For achieving this object, it would be reasonable to

have a wide field of choice so that eminent people from

everywhere in the country are able to compete. It may be, as

has been urged by the counsel for the petitioner that persons

serving in the Government hospitals have to initially serve in

rural dispensaries or in suburban areas. Yet, when they come

to the Medical Colleges they discharge the same functions as

are being performed by the members of the Faculty of the PGI.

Thus, there is prima facie no basis for treating them

differently.”

15. It is to be mentioned here that the decision of the apex court in

Union Public Service Commission versus Dr. Jai Dev Wig reported in

1998 (4)S.C.T. 275 has been referred in that report. But the fact situations,

this court should take note, are entirely different vis a vis the case in hand.

16. Mr. Datta, learned counsel has further referred a decision of the

Delhi High Court in Sushil Kumar Rajput versus Director of Education and

Others [judgment dated 24.11.2006 delivered in WP(C)No.13782/2004]. In that

case, the Delhi High Court considered whether an employee of Municipal

Corporation of Delhi can be deemed to be the government servant for purpose

of relaxation of age. Having referred to two apex court decisions viz. Union of

India and Others versus R.C. Jain and Others reported in AIR 1981 SC

951 and Municipal Corporation of Delhi versus Birla Cotton Spinning &

Weaving Mills Delhi reported in (1968) 3 SCR 251 : AIR 1968 SC 1232. It

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has been held that those bodies function under some autonomy but they do as

well function under supervision of the Government. Finally, in Sushil Kumar

Rajput(supra), Delhi High Court has observed as follows :

“17. From the foregoing, it would be seen that MCD as a local

authority has public functions akin to government, with

certain degree of autonomy. It would thus fall within the

ambit of 'other government organization' and specially

keeping in view that all group A appointments are made in

consultation with UPSC, for sanction of prosecution they are

treated as public/government servants. Even for the purposes

of Article 12 of the Constitution of India, MCD is treated as a

public authority. It is an instrumentality or agency of the

government, exercising statutory powers and performing

public functions.

18. Accordingly we hold that MCD will fall within the ambit of

'other government organization'. Orders dated 21.7.2004 and

3.8.2004 are quashed. Petitioner is held eligible for age

relaxation and his appointment as PET with respondent No. 1

is held legal and in order. Respondent No. 1 is directed to

reinstate the petitioner in service forthwith. In the peculiar

circumstances of this case, petitioner would not be entitled to

back wages but would be entitled to have the period from

21.7.2004 counted for purposes of determination of his

seniority and pension.”

17. Mr. B. Majumder, learned Asst. S.G. appearing for the respondents

No.1 to 5 in order to repel the submission of Mr. Datta, learned counsel

appearing for the petitioner has relied on a decision of the apex court in Delhi

Subordinate Services Selection Board and Another versus Seema

Kapoor [order dated 22.07.2021 delivered in Civil Appeal No.4461/2021]. In

that decision, the apex court has held unambiguously as follows :

“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 servants and

departmental candidates. It is not even the stand of the

respondent that she is a government servant and, rightly so,

as she is employed in an autonomous body i.e. Municipal

Corporation established under a specific statute. The

expression „Departmental Candidates‟ is in respect of the

candidates who are working in the concerned Department i.e.

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Education. The Circular of the Government of India dated

27.3.2012 has made it explicitly clear that the benefit of age

relaxation is only meant for civil employees of the Central

Government and not to the employees of the autonomous

bodies, public sector undertakings 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.”

18. Moreover, Mr. Majumder, learned Asst. S.G. has, having referred to

Tirumala Tirupati Devasthanam s 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 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

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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.

20. This court has keenly perused the relevant materials to find out

whether the said Society is the Government Department or not. But it appears

that it is a Society promoted by the Government but it is not a Government

Department and as such, in view of the decision as rendered by the apex court

in Delhi Subordinate Services Selection Board (supra), the petitioner

cannot be treated as the Government servant and consequentially, his selection

as the Junior Weaver on relaxation of age was not legal as the petitioner was

not entitled to any relaxation.

As corollary, the writ petition stands dismissed. The interim order

as passed on 29.11.2021 stands vacated.

There shall be no order as to costs.

JUDGE

Sabyasachi B