Tripura High Court
The State Of Tripura vs Smt. Nibedita Roy on 14 February, 2020
Bench: Akil Kureshi, S Talapatra
Page - 1 of 16
HIGH COURT OF TRIPURA
AGARTALA
WA No.56/2019
1. The State of Tripura, to be represented by the Secretary,
Department of Health & Family Welfare, Government of Tripura,
New Secretariat Complex, P.S. New Capital Complex, Kunjaban,
Agartala, Pin - 799010.
2. The Principal Secretary, GA(P&T) Department, Government of
Tripura, New Secretariat Complex, P.S. New Capital Complex,
Kunjaban, Agartala, Pin - 799010.
3. The Director of Health Services, Government of Tripura, Pandit
Nehru Complex, Gurkhabasti, P.O - Kunjaban, P.S. West
Agartala, West Tripura, Pin - 799006.
.................. Appellant(s).
- Vs -
1. Smt. Nibedita Roy, D/o Chandi Das Roy, resident of North
Banamalipur, New Bodhjung Road, Youns Corner Club, Agartala,
P.O. Abhoynagar, P.S. East Agartala, District - West Tripura, Pin
- 799001.
2. Tripura Public Service Commission, to be represented by the
Secretary, Tripura Public Service Commission, Akhaora Road,
Agartala, Tripura, Pin - 799001.
.................. Respondent(s).
WA No.57/2019
1. The State of Tripura, to be represented by the Secretary, Department of health & Family Welfare, Government of Tripura, New Secretariat Complex, P.S. New Capital Complex, Kunjaban, Agartala, Pin - 799010.
2. The Principal Secretary, GA(P&T) Department, Government of Tripura, New Secretariat Complex, P.S. New Capital Complex, Kunjaban, Agartala, Pin - 799010.
3. The Director of Health Services, Government of Tripura, Pandit Nehru Complex, Gurkhabasti, P.O - Kunjaban, P.S. West Agartala, West Tripura, Pin - 799006.
.................. Appellant(s).
- Vs -
Page - 2 of 16
1. Smt. Kuheli Debbarma, D/o Sushil Debbarma, resident of Ujan Abhoynagar, East side of Blood Sun Club, Agartala, P.O. Abhoynagar, P.S. East Agartala, District - West Tripura, Pin 799005.
2. Tripura Public Service Commission, to be represented by the Secretary, Tripura Public Service Commission, Akhaora Road, Agartala, Tripura, Pin - 799001.
.................. Respondent(s).
_B_E_F_O_R_E_ HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE S TALAPATRA For Appellant(s) : Mr. A K Bhowmik, Advocate General, Mr. M Debbarma, Addl. Govt. Advocate, Mr. K De, Addl. Govt. Advocate.
For Respondent(s) : Mr. P Roy Barman, Advocate, Mr. Samarjit Bhattacharjee, Advocate, Mr. Raju Datta, Advocate.
Date of hearing & judgment : 14th February, 2020.
Whether fit for reporting : Yes
JUDGMENT & ORDER(O R A L)
Per se - (Kureshi, CJ).
These appeals arise in common background, they have been heard together and would be disposed of by this common judgment.
[2] Since facts are common, we may peruse them from WA No.57/209.
[3] This appeal is filed by the State of Tripura and its authorities to challenge the judgment of a learned Single Judge dated 1st April, 2019. Present respondent herein was the original petitioner who had filed WP(C) No.1102/2018 in which the prayer Page - 3 of 16 made was to direct the State-authorities to issue appointment order appointing the petitioner on the post of Technical Assistant (Pharmacy) under the Director of Health Services, State of Tripura, pursuant to acceptance of offer of appointment given by the respondents to the petitioner under memorandum dated 8th March, 2018.
[4] The Tripura Public Service Commission(TPSC) had advertised 2(two) vacancies for the post of Technical Assistant(Pharmacy) under the Health & Family Welfare Department on 30th November, 2016. In response to such advertisement, the petitioner having requisite qualifications had applied. After clearing the written test and oral interviews, on 3rd January 2018, the petitioner was informed that her name had been recommended by the Public Service Commission for the post of Technical Assistant(Pharmacy). Vide memorandum dated 8th March 2018, the Additional Secretary of Director of Health Services, Government of Tripura, offered appointment to the petitioner on the said post on purely temporary basis for a period of 1(one) year from date of joining. The petitioner was given time up to 31st March, 2018 to accept such offer of appointment. Under a communication dated 19th March 2018, the petitioner accepted the offer of appointment. Despite such facts, the State Government did not issue order of appointment in her favour. She had, therefore, filed the said petition with the above-noted prayer.
Page - 4 of 16 [5] The respondents had appeared in response to the notice issued by the learned Single Judge and taken a stand that the State Government had formulated a new recruitment policy. It was also contended that "In fact the Govt. has every right to fill-up the post as per requirement. When the new Govt. has come into power it has decided not to fill-up the posts by direct recruitment. As such the Government has not issued the appointment order in favour of the petitioner at present, as and when required the said post will be filled-up by issuing appointment letter. So there is no arbitrary and illegal action on the part of the Government."
[6] The learned Single Judge in the impugned judgment held that the action of the Government was wholly impermissible. It was noted that the selection of the petitioner was followed by offer of appointment and the acceptance of which was also duly communicated. It was only thereafter that the Government cancelled the previous orders. It was noted that the Government had not detected any infirmity or irregularity in the process of selection carried out by TPSC. Learned Judge held that when the offer of appointment was communicated to the offeree it creates a legal character and the offer becomes binding to the offeror. Learned Judge was of the opinion that the recommendation of a Constitutional body like Public Service Commission carries considerable weight and such recommendation cannot be rejected with the formation of new Government in absence of any just, fair Page - 5 of 16 and reasonable cause. Eventually, the petition was allowed by making following observations :
― * * * *
31. In my considered view, when the selection was made in a fair manner and in compliance with the established procedure of public employment, there should not be any reason to discard or cancel offer of appointment issued in favour of the petitioner, particularly, when it was accepted by the petitioner and acknowledged by the respondent Nos. 1, 2 and 3.
32. The change of government is only an ideological change of a political party in a democratic set up. At last, it is the government and only the government, and its largesse that should lead it to run. The government being the master of good governance will have to establish the ‗Rule of Law' and should not segregate its citizens and adapt any such policy to dislodge the doctrine of fairness in public employment. Further, it being a benevolent State authority has the solemn and divine duty to uphold the ‗Rule of Law' and to earn the faith of its citizens qua not to be benign the morale of the people.
33. The Apex Court in the long line of decisions beginning from the case of R. D. Shetty Vrs. International Airport Authority, (1979), 3 SCC 497 has categorically held that--
"The Government is not and should not be as free as an individual in selecting the recipients for its largesse. Whatever its activity, the Government is still the Government and will be subject to restraints, in herein in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal".
34. Keeping in mind the aforesaid dictum of law followed by many of the decisions later on till Powai Panchsheel Page - 6 of 16 Co-OP. Hsg. Society and Ors. Vs. Maharashtra Housing Area Development Authority (MHADA) and Ors.,(2019) 2 SCC 294, in the context of the present case, the decision of the Council of Ministers to annul the ―regular and fair‖ recruitment process in the post of Technical Assistant (Pharmacy) appears to be vitiated as being unreasonable, arbitrary and contrary to the spirit of Article 14 of the Constitution of India and in furtherance thereof, the Government is totally silent what object they actually wanted to achieve before taking such decision. For the reasons, the State authority should not be allowed to scuttle the indefeasible accrued right of person(s), like the petitioner herein. As such, the grounds assigned by the State-respondents in their reply are not tenable/sustainable and the decision not to appoint the petitioner is accordingly set aside.
35. In the backdrop of the aforesaid discussion, on facts and legal position, I may summarize the case in the manner that the petitioner is entitled to have issued with the formal appointment letter in the post of Technical Assistant(Pharmacy) since the contract between her being the promisee and her employer, the respondents No.1, 2 and 3 herein, being the promisor is concluded, that apart, the decision of the Council of Ministers is held to be irrational and unwarranted and violative of Article 14 and 16 of the Constitution of India.
36. In the result, the instant writ petition is allowed. The respondent Nos.1 & 3 are directed to issue the formal appointment letter in favour of the petitioner, irrespective of the stand taken by the Council of Ministers stated in the Counter Affidavit for the reasons and grounds portrayed above, within a period of 30 (thirty) days from the date of receipt of the copy of the judgment.
37. With these observations and directions, the petition stands disposed.‖ Page - 7 of 16 [7] Appearing for the State Government, learned Advocate General submitted that till a candidate is actually appointed, the Government has every right to cancel his selection. Merely because a candidate's name has been placed in the select list, does not give him indefeasible, vested right of appointment. When the Government formed a new recruitment policy, a decision was taken to cancel all ongoing selection processes. In the present case, the selection process had not been completed. Completion of such selection process would only be upon appointment of the selected candidates. Since no such appointment was made, the Government had every right to cancel the selection.
[8] Learned counsel, Mr. P Roy Barman for the original petitioner, submitted that both the petitioners were duly selected through the regular selection process undertaken by the TPSC. Not only the select list was drawn, even offers of appointment were made. Such offers were accepted. Once such offers are accepted, a concluded contract comes into existence and issuance of appointment order is a mere formality. He relied on the decision of Division Bench of this Court in case of The State of Tripura Vs. Sri Samudra Debbarma in WA No.142/2019 dated 3rd December, 2019 in which cancellation of selection process due to formulation of new recruitment policy was quashed. [9] Having heard learned counsel for the parties and having perused materials on record, we find no merit in the present Page - 8 of 16 appeals. Similar issues had come up for consideration before this Court in case of Sri Samudra Debbarma(supra). In the said case also the State Government had preferred appeal against the judgment of the learned Single Judge. The petitioner had applied for appointment to Tripura Civil Service, Grade-II post, to be made by TPSC. The selection process was undertaken as per the then prevailing rules. Screening test followed by main written examination were conducted. Results of the written examination were declared. Those candidates who had passed the examinations were waiting for oral interview. At that stage, citing the new recruitment policy issued by the Government of Tripura under a memorandum dated 14th March 2018, initially, further recruitment was kept in abeyance and thereafter, selection process already undertaken was cancelled. At that stage, the petitioner, one of the participants in the said selection process had approached the High Court. Learned Single Judge had held that there were no valid reasons for discarding the said selection process at that stage. New recruitment policy could not be applied to selection process which was initiated and had advanced considerably. The decision of the learned Single Judge was challenged before the Division Bench in writ appeal[WA No.142/2019]. The Division Bench dismissed the writ appeal on the main issue, however, suitably moulded, the directions issued by the learned Single Judge. Relevant portions of this judgment reads as under :
Page - 9 of 16 ― * * * * [26] As per this amended sub-regulation (1), for the post in question the preliminary examination would be of 200 marks, the main examination would be of 800 marks and the personality test (oral interview) would carry 100 marks. These regulations also provide that the preliminary examination is meant only to be the screening test and the marks obtained in such examination by a candidate will not be considered for final selection. Only those candidates who will be declared qualified at the preliminary examination will be eligible for admission to the main examination. In other words, for selection to the post in question the aggregate of the main examination of 800 marks and personality test through oral interview of 100 marks would be considered. In the aggregate thus the marks would be allotted out of 900, 100 of which would be from the oral interview. The proportion of the oral interview as compared to the total marks would thus come to 11%.
[27] We have reproduced the entire notification dated 5th June, 2018 under which the State Government had published its new recruitment policy. One of the major thrusts of this policy was to abolish oral interviews for Group-D posts. However, we are not concerned with this policy change. In so far as Group A and B posts are concerned, this policy provides that the weightage for interview should not exceed 10% of the total marks. Only in exceptional cases the same may be increased beyond 10% with the approval of the Cabinet. There is no other change that this new policy makes insofar as the present selection process is concerned. We have noted that as per the existing policy which was being applied for the selection process which had already commenced, the proportion of oral interview to the total marks was 11%. As against this, the new policy Page - 10 of 16 prescribes a ceiling of 10% weightage for oral interviews.
[28] The Government while framing its policies, undoubtedly has a vast latitude. As long as the policy is based on a well-informed decision, the executive also has the liberty to experiment in policy formation. A policy change which restricts the preparation of marks for oral interview cannot be in absence of sound reasons faulted. Nevertheless, the question is, was it open for the Government to superimpose such policy and the changes brought about through such policy in the recruitment process which had travelled to an advanced stage? The answer to this question for multiple reasons must be in the negative. The reasons are as follows :
[29] Firstly, as noted, the new policy of the Government restricts the marks for oral interviews to 10% of the total. The existing formula being applied for selection to the posts in question carried oral interview weightage of only 11% which was fractionally higher than what the new policy prescribes. For such a minor policy change the entire exercise of inviting applications from eligible candidates, holding screening test for weeding out weaker candidates, allowing successful candidates passing the screening test to appear in the written examination and conducting the written examination could not have been be annulled. No pressing grounds are demonstrated before us for taking such a drastic measure for an insignificant change in the policy parameters.
[30] Secondly, allowing the Government to apply the policy change at such an advanced stage would undoubtedly breach the principle of changing the rules of the game once the game has begun. The fundamental philosophy behind the Courts laying down Page - 11 of 16 the said principle is that the executive discretion cannot be allowed to operate in such a way that midway through the selection process the very selection criteria can be changed. This would in addition to giving rise to uncertainty in public selection process, also be open to mala fide application where the rules for selection would be changed to suit so as to include certain wanted or to exclude unwanted candidates. In the present case, there may not be any element of bias. Nevertheless permitting the Government to bring in a new set of rules and to cancel the entire selection process which has travelled to an advanced stage has a risk potential to permit arbitrary decision of the executive to prevail. To frame a new recruitment policy may be a perfectly valid and legitimate policy decision of the Government. We do not intend to; in fact we are not even called upon to interfere with such policy decision. However, the subsequent decision of the Government to annul the entire selection process which had reached an advanced stage only so that the new policy of recruitment can be applied by restarting the selection was an arbitrary decision.
[31] There is yet another reason why the Government decision cannot survive the test of law. We may recall, the proportion of marks for the screening test, written main examination and oral interview have been prescribed under the relevant Regulations. These Regulations are in exercise of powers conferred under Rule 6 of the said Rules. These Regulations are thus in the nature of subordinate legislation. The prescription of the marks for written test and oral interview thus tress their origin to statutory Regulations. The field is thus not open and is occupied by legislation. Executive instructions cannot override such statutory prescriptions. By issuing an executive fiat it was, therefore, not open for the State Government to modify Page - 12 of 16 the proportion of the marks for oral interview. In other words, unless and until the Regulations are amended, the policy declaration under the notification dated 5th June, 2018 insofar as it pertains to limiting the marks for oral interview to 10% of the aggregate, would not prevail.
[32] For such reasons, we do not find any error in the view of the learned Single Judge in allowing the writ petition of the original writ petitioner. However, before closing couple of clarifications would be needed. Firstly, the learned Single Judge has struck down even the notification dated 5th June, 2018. This was neither under challenge nor shown to be in any manner unlawful, except to the extent the provisions made in the said notification conflict with the existing Rules and Regulations. Subject to these observations, the decision of the learned Single Judge to set aside the notification dated 5th June, 2018 must be reversed. Secondly, the learned Single Judge quashed the memorandum dated 20th August, 2018 insofar as it relates to TCS Grade-II and TPS Grade II. The petitioner had not challenged cancellation of examination of TPS Grade-II. Such cancellation, therefore, could not have been set aside. We are conscious that the considerations and parameters in both sets of recruitments may be similar. However there was no challenge before the learned Single Judge to the cancellation of the TPS Grade - II examination held by the State Government. The petitioner was not even aggrieved by it. Without a formal challenge, without full material being brought on record and arguments advanced by both sides it would not be proper to extend the relief to the recruitment of TPS Grade - II services also which as noted, the petitioner had never challenged. Such later directions for setting aside Government decision to cancel TPS Page - 13 of 16 Grade II examination of the learned Single Judge are also, therefore, reversed.
* * * *‖ [10] In the present case, facts are even more glaring than in
the case of Sri Samudra Debbarma(supra). Present is a case where the entire selection process was completed by TPSC. The TPSC had forwarded its recommendations of selected candidates to the State Government. The State Government had accepted and acted on such recommendations and issued offer of appointment to the selected candidates. They were given time to accept the offer of appointment. They conveyed their acceptance within the time so permitted. Thus, even a vested right was created in their favour to be appointed. Issuance of appointment order was, thereafter, a mere formality. Nothing was left to be done before the State Government stepped in and cancelled the entire process. This was thus a case where the entire selection process was over and which had culminated into offers of appointment being made to the selected candidates which offers were duly accepted. The State Government cannot plead that the selection process was incomplete and, therefore, the Government had unlimited right to interject at any stage before its completion. Even the right of the Government to rollback the steps already taken in furtherance of selection process must be hedged with reasonable explanation for annulling what is already done in due process. Accepting unlimited right of the Government in this respect would be against the equality and reasonable principles flowing from Articles 14 and 16 Page - 14 of 16 of the Constitution. Mere whim and caprice of the Government cannot be the reasons for cancelling selection process which had reached an advanced stage.
[11] In case of Kulbindar Pal Singh and Anr. Vs. State of Punjab and Ors., reported in (2016)6 SCC 532 it was observed that it is always open to the Government not to fill up the vacancies, however such decision should not be arbitrary or unreasonable. Following observations may be noted:
―12. In Manoj Manu and Anr. V. Union of Indi & Ors. (2013) 12 SCC 171, it was held that merely because the name of a candidate finds place in the select list, it would not give the candidate an indefeasible right to get an appointment as well. It is always open to the government not to fill up the vacancies, however such decision should not be arbitrary or unreasonable. Once the decision is found to be based on some valid reason, the Court would not issue any mandamus to government to fill up the vacancies.....‖ [12] As is well settled, starting point of relation between the Government and a Government servant as employer-employee is contractual in nature. Once appointed, it is taken over by statutory provisions. In the present case, with the Government making an offer of appointment and the offeree accepting such offer, a concluded contract of appointment came into existence.
Page - 15 of 16 [13] We are not oblivion to the decision of Division Bench of this Court in case of Sri Pratha Das Vs. State of Tripura and Ors. in WP(C) No.946/2018 and other connected matters, dated 3rd October, 2019 in which the Division Bench of this Court had upheld the decision of the State Government to cancel the ongoing selection process on account of introduction of the said new recruitment policy. However, there are significant differences between the facts of the said case and case on hand. In the case of Sri Pratha Das(supra), the contestants had applied for Enrolled Followers which was a Group-C post. The selection process had not been over culminating into preparation of select list leave alone offers of appointment being given. In the context of Group-C and D posts new recruitment policy had made significant changes particularly in the area of oral interview. In the present case, the selections of the petitioners were made through the Public Service Commission. The selection process itself was governed by statutory regulations which prescribed proportions for written examinations and oral interview which proportion is the bone of contention in the new recruitment policy formulated by the State Government in which to achieve greater transparency ceiling has been imposed for prescribing proportion of oral interview vis-à-vis the total marks to be allotted to a candidate. In case of Sri Samudra Debbarma(supra) this Court had come to the conclusion that the proportion of written examination and oral interview marks which has been prescribed under statutory regulations, cannot be Page - 16 of 16 amended by executive instructions such as through framing of new recruitment policy.
For such reasons, both the appeals are dismissed. Pending application(s), if any, also stands disposed of.
(S TALAPATRA), J ( AKIL KURESHI ), CJ Sukhendu