JUDGMENT
A.B. Pal, J.
1. The petitioner obtained the Degree of Master in Commerce (M.Com) and Master in Business Administration (MBA). He found a job in the Tripura Apex Weavers Co-operative Society, Agartala (for short, ‘Co-operative Society), the post being Store-cum-Marketing Officer drawing a salary of Rs. 1,700/- in the pay scale of Rs. 750-1750/- in the year 1985. The Tripura Jute Mills Ltd., the first respondent herein, is a Govt. Company registered under the Companies Act, 1956 (herein after referred to as ‘the Company’). In 1985 the Company advertised for the post of Commercial Officer in the pay scale of Rs. 1400-2350/-. The petitioner applied for the post on 9.7.1985 and was interviewed by a Selection Board of the Company on 14.9.1985. He was selected for the post of Commercial Officer following which he tendered resignation from the post of Store-cum-Marketing Officer of the said Co-operative Society. His resignation was accepted and he was released on 14.1.1986. To his surprise, he was appointed as officer Trainee on 27.2.1986 on a consolidated stipend on Rs. 500/- per month only w.e.f. 15.1.1986, which was the date of his actual joining after the offer dated 28.12.1985 was received by him. In his joining report (Annexure-4), he clearly raised an objection against the stipend of Rs. 500/- per month only on the ground that he was selected for the post of Commercial Officer carrying the regular pay scale of Rs. 1400-2350/-. He further pointed out that he was receiving Rs. 1700/- in the pay scale of Rs. 750-1750/- as Store-um-Marketing Officer of the Co-operative Society in support of which he submitted a salary certificate from his previous employer. He requested the respondents for granting him regular pay scale of the Commercial Officer with protection of the last pay drawn by him in his previous job. His objection, however, failed to evoke any favourable response. On 17.3.1987, after more than a year as Officer Trainee, he was appointed as Officer on Special Duty (OSD) for a period of six months. After expiry of the period, another order was issued on 22.9.1987 directing him to continue in the said post of OSD. On 8.3.1988, after a period of about one year as OSD, his appointment to the post of Commercial officer Grade-II in the pay scale of Rs. 800-1530/- with retrospective effect from 17.9.1987 was confirmed. No reason was shown why he could not be appointed to the post of Commercial Officer in the pay scale of Rs. 1400-2350/-. As he was out of his previous service, he had no other alternative but to accept the lower job and swallow this unfair and unreasonable treatment. On 11.1.1987 he submitted a prayer to the Chief Minister of the State explaining the above situation with request to intervene and direct the respondents to appoint him to the post of Commercial Officer for which he was selected. He claims that inspite of favourable order of the Chief Minister, which has, however, been disputed, the respondents refused to provide redress by appointing him to the post of Commercial Officer. His repeated representations to the Administrative Officer and Managing Director of the Company fell into deaf ear. On 27.4.2005, after a long period of 19 years, the Managing Director of the Company, the second respondent herein, addressed a letter to the petitioner (Annex-ure-8) explaining why he could not be appointed to the post of Commercial Officer for which he was interviewed and selected. The interesting part of the reply reads:
We regret to inform you that the “Management” is craving to appoint you on aforementioned post and pay scale with retrospective effect, however, the post of commercial Officer is not included in Tripura Jute Mills Employees (Revised pay) Rules, 1999.
The letter failed to explain why the petitioner could not be appointed in 1986 to the post of Commercial Officer in the unrevised pay scale of Rs. 1400-2350/- and how non-inclusion of the post in the ROP Rules, 1999 had anything to do with the appointment in 1987 after the selection to the said post. Close to the heels of the said letter by the Managing Director, a memorandum was issued on 1.8.2005 under the signature of the Managing Director (Annexure-9) admitting that the petitioner was interviewed and selected for the post of Commercial Officer in the pay scale of Rs. 1400-2350/-, but after successful completion of training he was appointed and confirmed to the lower post of Commercial Officer Grade-II in the pay scale of Rs. 800-1530/- with initial basic at Rs. 1,110/-. Referring to the petitioner’s numerous communications to confirm him to the post of Commercial Officer with the pay scale of Rs. 1400-2350/-, the decision of the Management communicated on 27.4.2005 to the petitioner (Annexure-8) that “the Management was craving to appoint him to the said post with retrospective effect but could not do so as the post was not included in the ROP Rules, 1999′ has been repeated. Thus, his long sojourn for justice ended to the doors of this Court by means of this writ petition in 2005 with prayer to direct the respondents to appoint him to the post of Commercial Officer w.e.f. 16.1.1986 with all related benefits.
2. The Company and its Managing Director, the two respondents herein, in their counter-affidavit admitted the fact that the petitioner was interviewed and selected for the post of Commercial Officer carrying the pay scale of Rs. 1400-2350/-in 1985, but he was initially appointed as Officer Trainee and then OSD. Finally, he was appointed to the post of Commercial Officer Grade-II. In reply to the only grievance of the petitioner that he was not appointed against the post of Commercial Officer for which he was interviewed and selected, the respondents’ sole contention reflected in para 14 of the counter-affidavit is that the petitioner could not be appointed to the post of Commercial Officer only because the post was not included in Tripura Jute Mills Employees’ (Revised Pay) Rules, 1999 made by the State Government (for short ‘ROP Rules, 1999’). Referring to a document (An-nexure-12), which is a letter by the Administrative Officer to the petitioner written on 8.8.2003, the respondents contended in para 16 of the counter-affidavit that a proposal for inclusion in ROP Rules, 1999 of the posts of Commercial Officer and Commercial Officer Grade-II along with scales of pay indicated in that letter was submitted to the State Government, but as the State Government did not approve the proposal the petitioner could not be appointed to the post of Commercial Officer. The aforementioned contention once again failed to answer the only question which has fallen for consideration of this Court in the present controversy, why the respondents could not appoint the petitioner to the post of Commercial Officer in 1986 following his interview and selection in 1985 in the unrevised scale of pay of Rs. 1400-2350/-. It is not the case of the respondents that in 1986 the post of Commercial Officer was not in existence or that there was any proposal of revised pay for this post round the corner or that approval of the State Government was necessary but could not be obtained. The reply of the respondents ends with the singular evasive contention that for non-inclusion of the post of Commercial Officer in the ROP Rules, 1999, the petitioner could not be appointed to the post of Commercial Officer.
3. In the re-joinder, the petitioner has brought into focus the fallacy of this stand taken by the respondents contending, inter alia, that as per Memorandum and Articles of Association of the Company, the power to revise pay scale of its officers and employees vested with the Company itself for which no approval of the State Government is at all contemplated or provided. By a notification dated 7.7.1999 (Annexure-14), the Finance department of the State Government revoked the Tripura Jute Mills Employees’ (Revised Pay) Rules, 1999 framed by it w.e.f. the date of its issue directing that the Board of Directors of the Company shall consider revision of pay scales of the officers and workers of the Company on the lines of proposals and instructions issued separately. Obviously, this was done realising that the Company having a separate legal entity and being the independent authority to decide all matters pertaining to the officers and workers of the Company, the State Government should not have issued the Tripura Jute Mills Employees’ (Revised Pay) Rules, 1999. Hence the revocation of the same. Referring to a letter of the Managing Director dated 12.4.2002, addressed to the Joint Secretary (Finance), Government of Tripura on the revision of pay scales of the officers and workers of the Company, the petitioner contended that admittedly, as stated in clause (a) of that letter, the Board of Directors of the Company was authorised to create posts and appoint officers and employees as per Clause 93 (h) of the Memorandum and Articles of Association. In Clause (c) of the said letter, it has been clearly stated that all the posts, which were in existence on 30.6.1989, were sanctioned and regularised. The list of such posts enclosed with Annexure-15 shows the post of Commercial Officer at serial No. 15 in the pay scale of Rs. 1400-2350/-, shown vacant as on 30.6.1989. It is thus the contention of the petitioner that though the post of Commercial Officer was very much in existence, it was left vacant without appointing the petitioner to that post for no rhyme or reason.
4. Mr. D.K. Biswas, the learned Counsel for the petitioner has concentrated his argument only on the singular issue that in the face of the admitted factual position that the petitioner was interviewed and selected for the post of Commercial Officer in the pay scale of Rs. 1400-2350/-, his appointment to the lower post of Commercial Officer Grade-II when the higher post of Commercial Officer was lying vacant is nothing but an example of gross illegality and arbitrariness by the respondents. Strangely enough, Mr. Biswas submits, nowhere in the reply the respondents have made any attempt to say what precisely prevented them from appointing the petitioner to the post of Commercial Officer for which he was interviewed and selected. As the period of selection and appointment relates to 1985 and 1986 only, the respondents have not pleaded anything to explain why the petitioner could not be appointed to the post he was selected for, but had to be appointed to a lower post. The contention of non-inclusion of the post of Commercial Officer in the ROP Rules, 1999 or not receiving approval of the State Government on their proposal in 2000 for revision of pay of the two posts of Commercial Officer and Commercial Officer Grade-II cannot in any way be linked to the position appearing in 1985-86. The controversy being failure of the respondents to appoint the petitioner in 1986 following the selection in 1985, the canvass cannot be shifted to the position in 1999-2000 as attempted by the respondents in their counter-affidavit. Thus, the respondents remained completely silent about their action of not appointing the petitioner to the post of Commercial Officer in 1986.
As regards the delay in approaching this Court, Mr. Biswas has urged this Court that in view of the fact that the respondents have shown their inclination to redress the grievances, the petitioner chose to wait. But when fundamental or legal right of a citizen stand violated, the Court should not resort to any technically, like delay, which would virtually defeat the cause of justice, he submits.
5. Mr. G.S. Das, the learned Counsel for the respondents, has submitted a written argument reiterating the same stand that the proposal for revision of pay scale for the Commercial Officer and Commercial Officer Grade-II was submitted by the Company to the State Government but as no approval was received, the petitioner could not be appointed to the post of Commercial Officer. Mr. Das has referred to a decision of the Apex Court in A.K. Bindal v. Union of India and invited my attention to paras 17 and 22 of the said judgment. From a perusal of the said two paragraphs, it appears that the Apex Court held that the legal position of the Govt. Company is that its identity remains distinct from the Government and, therefore, the employees of the Company cannot claim that the Government should pay their salary and the additional expenditure on account of their revision of pay scales. It has further been held that the economic viability or the financial capacity of the Company is an important factor, which cannot be ignored while fixing the wage structure. I fail to understand how this decision has any relevance to the present controversy. There is no dispute that the respondent Company has distinct identity from the Government and that it is the responsibility of the Company to meet the financial liability arising out of revision of the pay of its employees. The petitioner has, on the contrary, consistently claimed that the State Government has nothing to do with the creation of posts, appointment of officers and employees and the pay revision of the employees of the Company. The petitioner has been demanding that the respondent Company only should have appointed him to the post of Commercial Officer for which he was interviewed and selected. No other issue has been adverted to in the present context.
6. Closing the controversy to the only issue why the respondents could not appoint the petitioner to the post of Commercial Officer in the pay scale of Rs. 1400-2350/- in 1986, and the petitioner accepted the same, it is to be noticed that the petitioner was drawing Rs. 1700/- in the pay scale of Rs. 750-1750/- in his previous post of Store-cum-Marketing Officer in the Co-operative Society aforementioned and, therefore, after his resignation from that post following the selection to the post of Commercial Officer under the respondents, he had no other alternative but to accept the lower post with lower scale of pay in order to save his family. As seen above, the respondents have remained completely silent as to why the petitioner could not be appointed to the post of Commercial Officer for which he was interviewed and selected. As I have already observed above, the position in 1999 as adumbrated by the respondents relating to pay revision and approval of the State Government, which again nothing but ruse only, cannot be pressed into service for explaining the actual situation in 1986 when the petitioner was selected for a higher post but appointed to a lower post. There is absolutely no dispute that the post of Commercial Officer was created initially in the pay scale of Rs. 1200-1900/- in the year 1980 and one Alok Kr. Choudhury was appointed to that post in the same year (Annexure-10). In the letter dated 8.8.2003 of the Administrative Officer addressed to the petitioner the details of the proposal sent to the State Government has been shown. It would appear therefrom that the post of Commercial Officer in the pay scale of Rs. 1200-1900/- was upgraded by the Company to Rs. 1400-2350/-. In the Second and Third Pay Revision, the pay was revised to Rs. 1800-2500/- and 3500-5700/- respectively. The respondents recommended for further revision of the pay scale of Commercial Officer at Rs. 11000-18275/- in the Fourth Pay Revision, which according to the respondents was not approved by the State Government. For the reasons aforementioned, the stand of the respondents that though they were very much eager and craving to appoint the petitioner to the post of Commercial Officer with retrospective effect, which they could not do due to non-inclusion of the post in the Pay Revision of 1999, has no merit. It is, therefore, to be held that the respondents had no rhyme or reason for not appointing the petitioner to the post of Commercial Officer in the unrevised pay scale of Rs. 1400-2350/- on 8.3.1988 when he was appointed to the post of Commercial Officer Grade-II.
7. The question of delay in approaching this Court has been strongly advanced by the learned Counsel for the respondents. Though the rule that the Court may not inquire into abelated and stale claim is not a rule of law, but a rule of practice based on sound and proper exercise of discretion only, as held by the Apex Court in Ramchandra Shankar Deodhar v. State of Maharashtra and Ors. , the Court should not be oblivious of the general principle that utmost expedition is the sine quo non for a claim under Article 226 of the Constitution. The party aggrieved must move the Court at the earliest possible time and explain satisfactorily the delay preventing him to approach earlier.
In P.B. Roy v. Union of India , the Apex Court in another situation held
The delay in filing the petition under Article 226 may be overlooked on the ground that, after the admission of a writ petition and hearing of arguments, the rule that delay may defeat the rights of a party is relaxed and need not be applied if his case is “positively good.
8. While entertaining a writ petition after expiry of 12 years in G.P. Doval and Ors. v. Chief Secretary, Govt. of U.P. and Ors. , the Apex Court referred to several representations of the writ petitioners, which did not yield any response, reply or relief, for condoning such a long delay. The relevant observation appearing in para 16 is gainfully quoted below:
16. A grievance was made that the petitioner have moved this Court after a long unexplained delay and the Court should not grant any relief to them. It was pointed out that the provisional seniority list was drawn up on March 22, 1971 and the petitions have been filed in the year 1983. The respondents therefore submitted that the court should throw out the petitions on the ground of delay, laches and acquiescence. It was said that promotions granted on the basis of impugned seniority list were not questioned by the petitioners and they have acquiesced into it. We are not disposed to accede to this request because respondents 1 to 3 have not finalised the seniority list for a period of more than 12 years and are operating the same for further promotion to the utter disadvantage of the petitioners. Petitioners went on making representations after representations which did not yield any response, reply or relief. Coupled with this is the fact that the petitioners belong to the lower echelons of service and it is not difficult to visualise that they may find it extremely difficult to rush to the Court. Therefore, the contention must be rejected.
9. This Court sitting in Division in Arunoday Barman v. State of Tripura and Ors. reported in (1986) 2 GLR 195 held that delay has to be explained to the satisfaction of the Court. The question is one of discretion to be exercised on the facts of each case. There is no lower or upper limit. The delay depends on what breach of the fundament alright and the right claimed are and how the “delay arose”.
10. Looking back to the case in hand, the petitioner at the very outset raised objection in his joining report dated 15.1.1986 claiming that as he was interviewed and selected for the post of Commercial Officer in the pay scale of Rs. 1400-2350/-, he should not have been deprived from the benefit admissible to him. From the letter dated 8.8.2003 of the Administrative Officer (Annexure-12), appears that the respondent Company was replying to the applications dated 1.9.1988, 27.8.1989, 6.12.1993, 28.8.1994, 1.7.1996, 15.11.1999 and 26.7.2003. In reply to all the applications of the petitioner, the Administrative Officer of the Company in the said letter dated 8.8.2003 reiterated the stand now taken in the counter-affidavit that the post of Commercial Officer was not included in the Tripura Jute Mills Employees’ (Revised Pay) Rules, 1999, published by the Department of Finance, Govt. of Tripura. It has further been stated that the Management of the Company recommended the pay scale of Commercial Officer to the Joint Secretary, Department of Finance, Govt. of Tripura, Agartala and the Commissioner, Department of Industries and Commerce, Govt. of Tripura, Agartala on 12.4.2004 for necessary approval. This letter is the admission that the petitioner has been knocking the door of the respondents again and again, but at no point of time before 8.8.2003 he was replied in clear terms why he could not be appointed to the post of Commercial Officer or whether his claim had been finally rejected. Even in the memorandum dated 1.8.2005 (Annexure-9), the Managing Director admitted:
He made numerous communication to confirm him to the aforesaid post and scale with retrospective effect as he was interviewed. The Management has also communicated its decision vide office letter No. TJ/ADMIN/GEN(17)/1522 dated 27.04.2005. This has been issued with reference to his application dated 27 .07.2005.
The above observation shows that the petitioner was consistently making his effort for getting redress and his last application was on 27.7.2005, the year in which he approached this Court by this writ petition. As the above facts would show that a valuable legal right of the petitioner was denied by the respondents for absolutely no reason whatsoever and he has been making efforts by application after application seeking redress his claim cannot be said to be a state one. In my considered view, the above facts and circumstances have sufficiently explained the delay in approaching this Court.
11. As noticed above, the post of Commercial Officer in the pay scale of Rs. 1200-1900/- was created by the Board of Directors of the Company in their 51st meeting held on 9.3.1980 (Annexure-11) and the said post was in existence on 30.6.1989, which was regularised on 12.4.2000 (Annexure-15). Admittedly, the pay was upgraded to Rs. 1400-2350/- by the Company itself before the petitioner was interviewed and selected for the said post. There is no whisper in the counter-affidavit of the respondents about the method of selection or qualification or suitability of the petitioner for the said post. Nothing has been contended about the pay scale or approval of the State Government in 1986. The document at Annexure-15 clearly establishes the fact that the Board of Directors of the Company is the final authority to create posts, appoint officers and employees and revise their scales of pay. Thus the contention that non-inclusion of the post of Commercial Officer in the ROP, 1999 was the reason for not appointing the petitioner to the post of Commercial Officer in 1986 is an absurd proposition, an eyewash to defeat the just and legal claim of the petitioner.
12. That a person duly selected for a post cannot be denied appointment without justifiable reason has been held by the Apex Court in a line of decisions, one of which is in R.S. Mittal v. Union of India reported in 1995 Supp. (2) SCC 230. The Apex Court held: 12.
Although a person on the select person has no vested right to be appointed to the post for which he has been selected, the appointing authority cannot ignore the select panel or on its whims decline to make the appointment. When a person has been selected by a Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment.
Similar view has been taken in Rakesh Ranjan Verma and Ors. v. State of Bihar and Ors. reported in 1992 Supp. (2) SCC 343 and in Bhagwan Parshu Ram College and Anr. v. State of Haryana and Ors. .
13. In the present case, the petitioner is the only candidate selected for the post of Commercial Officer and there has never been any dispute about his qualification, eligibility and suitability for the post of Commercial Officer which in 1986 was very much in existence in the pay scale of Rs. 1400-2350/-. No approval of the State Government is contended to be necessary for appointment in 1986. As a matter of fact, no such plea has been taken by the respondents. No reason whatsoever, not to talk of a justifiable reason, was given as to why the petitioner could not be appointed to the post for which he was interviewed and selected. On the contrary, in the replies of the Managing Director and the Administrative Officer addressed to the petitioner, they have expressed that the Company was willing and craving to appoint him retrospectively to the post of Commercial Officer in its scale of pay. But they could not do so because of non-inclusion of the post in the ROP Rules, 1999, which plea, to repeat again, is an obsolete one firstly because said ROP Rules were invoked by the State Government in 1999 itself leaving the matter of revision to the Company and secondly pay revision of 1999 can not have anything to explain why in 1986 the petitioner could not be appointed as Commercial Officer. This ambiguous stand of the respondents may be one more reason for the petitioner to approach this Court after waiting in vain for such a long period.
14. The upshot of the above discussion now: (i) The petitioner was interviewed and selected for the post of Commercial Officer in the pay scale of Rs. 1400-2350/-. In the absence of any justifiable reason not to appoint him, he acquired a right to be appointed to the said post after the training period. The respondents failed to show any reason, not to speak of justifiable reason, to deny him appointment to that post; (ii) The petitioner was appointed to the post of Commercial Officer Grade-II w.e.f. 17.9.1987 wrongly and arbitrarily. Appointment to a lower post is permissible when there exists no post for which a person is interviewed and selected and in such a situation if he opts for same. The petitioner has the right to be appointed to the post of Commercial Officer w.e.f. 17.9.1987 as the post very much existed at that time, (iii) Admittedly, the respondents are willing and craving to appoint the petitioner to the post of Commercial Officer retrospectively in 1987. Thus, there being no dispute that the post of Commercial Officer existed in 1986-1987 in the pay scale of Rs. 1400-2350/-, the petitioner was interviewed and selected for that post, the invisible power or undisclosed reason behind appointing him to a lower post remained unexplored and untraversed by the respondents. The contention that non-inclusion of the post by the State Government in ROP Rules, 1999 is the only reason for not appointing him is obsolete and rejected simply for the reason that the State Government itself revoked said pay revision rules in the same year asking the Company to undertake revision of pay of its employees. (iv) The Managing Director of the Company issued a certificate on 25.5.2005 stating that “the petitioner was in continuous service of the Company as Commercial Officer w.e.f. 15.1.1986 till date’. In other words, though he was formally appointed to the post of Commercial Officer Grade-II, has been, as a matter of fact, functioning as Commercial Officer, the post for which he was interviewed and selected, during all this period. (v) He approached this Court only in 2005 after waiting in vain for long 17 years. As he has a ‘positive case’ and at no stage his claim for appointment to the post of Commercial Officer was rejected, the delay in moving the Court cannot be a reason to deny him justice.
15. For the discussions and reasons aforementioned, this writ petition has merit and, therefore, the same is allowed directing the respondents to (i) retrospectively appoint the petitioner to the post of Commercial Officer in the pay scale of Rs. 1400-2350/- w.e.f. 17.9.1987; (ii) fix his pay notionally from 17.9.1987 to 1.1.2003 in original and revised pay scale, if any, attached to the post (the date being three years before filing of the writ petition); (iii) pay him arrear from 1.1.2003 till date; (iv) revise the pay scale of the post, the same way, if pay of other officers and workers have been revised.
16. This exercise shall be completed within a period of three months from today.
No cost.