No government order, notification or circular can be a substitute of the statutory rules framed with the authority of law: Tripura High Court

HIGH COURT OF TRIPURA WA No. 221 1. Tripura Gramin Bank A Government Undertaking) Abhoynagar P.O. Abhoynagar Sub Division Agartala Dist. West Tripura Pin 799005 represented by its Chairman having his office at Tripura Gramin Bank Head Office Abhoynagar P.O. Abhoynagar Sub Division Agartala Dist. West Tripura Pin 799005 2. The Chairman Tripura Gramin Bank A Government Undertaking) Head Office Abhoynagar P.O. Abhoynagar Sub Division Agartala Dist West Tripura Pin 799005 Sri Abhishek Majumder son of Sri Arun Majumder resident of Narayan Kutir Sukanta Palli Town Bardowali P.S. West Agartala P.O. & Sub Division Agartala Dist. West Agartala Pin 799001 WA No. 321 1. Tripura Gramin Bank A Government Undertaking) Abhoynagar P.O. Abhoynagar Sub Division Agartala Dist. West Tripura Pin 799005 represented by its Chairman having his office at Tripura Gramin Bank Appellant(s) Head Office Abhoynagar P.O. Abhoynagar Sub Division Agartala Dist. West Tripura Pin 799005 2. The Chairman Tripura Gramin Bank A Government Undertaking) Head Office Abhoynagar P.O. Abhoynagar Sub Division Agartala Dist West Tripura Pin 799005 Sri Pritam Saha son of Sri Narayan Chandra Saha resident of Geet Bharati Para P.O. & P.S. R.K. Pur Sub Division Udaipura Dist. West Tripura Pin 799120 For AppellantFor Respondent(s) Whether fit for reporting NO Mr. A Roy Barman Advocate. Mr. S Lodh Advocate. HON’BLE THE JUSTICE MR. S. TALAPATRA HON’BLE THE JUSTICE MR. S. G. CHATTOPADHYAY Judgment & OrderHeard Mr. A Roy Barman learned counsel appearing for the appellants Tripura Gramin Bank a Government Undertaking and its officer as well as Mr. S. Lodh learned counsel appearing for the respondents. 2. Both these appeals being WA 28 of 2021 and WA 30 of 2021 are combined for disposal by a common judgment inasmuch as in these appeals a common judgment dated 07.10.2020 delivered in WP(C)220and WP(C) 220is under challenge. The brief facts relevant for appreciating the challenge in these appeals may be introduced at the outset. 4. Both the respondents after their long service were appointed as the Officer Middle Management Group A. There is no dispute at the bar that the respondents were appointed in the specialized cadre when they were directly recruited. On perusal of Rule 4 of the Recruitment Rules in respect of the appointment to the post of Officer Middle Management it appears that 75% of the vacancy in the said cadre is to be filled by promotion and the remaining 25% is to be filled up by direction recruitment. The respondents were considered in the direct recruitment quota which is to the extent of 25%. From a reading of the recruitment rules it further appears that out of 25% vacancies 10% is earmarked for the specialist cadre namely the candidates from Information Technology Agriculture Treasury Law Marketing Chartered Accountant etc. 5. There is no dispute that the respondents were eligible to be considered for promotion to Officer Middle Management Group A as they had fulfilled the criteria provided by recruitment rule 13(3) which reads as “13(3). A one time relaxation of one year service during the entire service period will be given to such candidates who have passed Junior Associate of the Indian Institute of Bankers of Indian Institute of Banking and Finance for promotion both under the normal channel and fast track channel to the Group ‘A’ posts specified in columnagainst serial numbers 1 2 and 3 of the First Schedule and one more year in case of such candidates who have passed Certified Associate of the Indian Institute of Banking and Mr. Roy Barman learned counsel has submitted that 6. the petitioners were eligible for promotion to the post of Officer Middle Management but the petitioners were not considered even though they had claimed to have fulfilled the eligibility for consideration for promotion to the post of Officer Middle Managementin the writ petitions by filing their reply have explained their position by stating that a specialized officer cannot be promoted in a general category vacancy. However the Board of the Bank may take a decision of merger of the specialized category cadre with the general category cadre at appropriate scale and that may be part of manpower planning of RRBto be prepared in consultation with the sponsor bank. 9. The said position as taken by the bank respondents the appellants herein has been rejected by the learned Single Judge while passing the said common judgment dated 07.10.2020 by observing inter alia that the recruitment rules for promotion to the Officer Middle Managementdoes not make any distinction between an Officer Middle Management recruitment against general category or against specialized cadre. No such distinction can be introduced through the executive instruction. In other words when the rules prescribe eligibility for promotion no additional condition can be imposed by way of executive instructions. It is well settled that where the recruitment rules are silent on any aspect it is always open to the employer to fill the gap through the executive instructions. However it is equally well settled that an executive instruction cannot run counter to the statutory recruitment rules. In other words if the field is occupied by the statutory rules executive instructions cannot govern the field. 10. Learned Single Judge has referred to a decision of the Apex Court in Dr. Rajinder Singh Vs. State of Punjab & Ors. reported in5 SCC 482 where the apex court has unambiguously worded their enunciations as follows: “7. The settled position of law is that no government order notification or circular can be a substitute of the statutory rules framed with the authority of law. Following any other course would be disastrous inasmuch as it would deprive the security of tenure and right of equality conferred upon the civil servants under the constitutional scheme. It would be negating the so far accepted service jurisprudence. We are of the firm view that the High Court was not justified in observing that even without the amendment of the Rules Class II of the service can be treated as Class I only by way of notification. Following such a course in effect amounts to amending the rules by a government order and ignoring the mandate of Article 309 of the Constitution.” In the same line another judgment of the Apex 11. Court in K K Parmar and Ors. Vs. H. C of Gujarat thr. Registrar & Ors. reported in 2006 AIR SCW 2856 has been 12. Having observed thus denial of the promotion to the respondents has been interfered with and the communications dated 04.12.2019 and 30.12.2019 were set aside and it has been declared that the respondents herein were eligible for being considered for promotion in the fast track channel to the post of Officer Middle Managementfor which their tests were conducted. The respondents the appellants herein have been directed to proceed to declare the result of the examination and they will be at liberty to grant promotion to the selected candidates. 13. The said finding has fallen for our scrutiny. 14. Mr. A Roy Barman learned counsel has contended that even the writ petitions were bad for non joinder of parties inasmuch as the decision of the Board as communicated to the respondents by communication dated 04.12.2019 and 30.12.2019 were taken in consultation with the sponsor bank or NABARD. As these entities are not made party in the proceedings this court may not adjudicate the right of the respondents. 15. We are unable to accept the contention inasmuch as the recruitment rules are in place and the bank respondents are bound by these recruitment rules while filling up the post of Officer Middle Management (Scale III). When they have deviated from the course as prescribed by the recruitment rules as quoted above and when they have acted in contravention thereof the sponsor bank or NABARD are not necessary parties inasmuch as their role is only advisory in nature. 16. Having observed thus we do not find any merit in these appeals and accordingly the same stand dismissed. However there shall be no order as to costs. 17. The respondents shall carry out the order of the learned single judge in the manner as directed therein. They are directed to complete the exercise within a period of six weeks JUDGE JUDGE from this day. 

Summary: The established legal position is that the existing laws framed by legal authorities cannot be replaced by public order, notice or a circular. It would be tragic to follow any other path, as the protection and equality of officers under the constitutional regime would be deprived. The previously acknowledged operation jurisprudence would be denied. The judgement was passed by the High Court of Tripura in the case of Tripura Gramin Bank v. Abhishek Majumder [WA No. 28 of 2021] by Division Bench consisting of Hon’ble Justice MR. S. Talapatra &amp; Justice Mr S. G. Chattopadhyay. The facts of the case are that the petitioners were not considered, even though they had claimed to have fulfilled the eligibility for consideration for promotion to the post of Officer Middle Management. Further, the petitioner has appealed in this court for seeking common judgment of the clubbed petition. Learned counsel for the petitioner has submitted that the petitioners were eligible for promotion to the post of Officer Middle Management but the petitioners were not considered, even though they had claimed to have fulfilled the eligibility for consideration for promotion to the post of Officer Middle Management. While referring to the apex court in the case of Dr Rajinder Singh Vs. State of Punjab &amp; Ors wherein it was noted that “no government order, notification or circular can be a substitute of the statutory rules framed with the authority of law. Following any other course would be disastrous since it would deprive the security of tenure and right of equality conferred upon the civil servants under the constitutional scheme. It would be negating the so far accepted service jurisprudence.” Learned counsel for respondents in the writ petitions by filing their reply have explained their position by stating that a specialized officer cannot be promoted in a general category vacancy. However, the Board of the Bank may decide on a merger of the specialized category cadre with the general category cadre at the appropriate scale and that may be part of manpower planning of RRB, to be prepared in consultation with the sponsor bank.