Tripura High Court
Dr. Smt. Bijaya Bhattacharya vs The State Of Tripura on 4 May, 2017
Author: S. Talapatra
Bench: S. Talapatra
1
THE HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) No. 864 of 2016
Dr. Smt. Bijaya Bhattacharya,
wife of Sri Santanu Das, resident of 132 KV Grid Sub Station,
Quarter No. IV/3, 79 Tilla, P.O. Kunjaban,
P.S. New Capital Complex, District- West Tripura
... Petitioner
- Versus -
1. The State of Tripura,
represented by the Secretary cum Commissioner,
Department of Education (Higher), Government of Tripura,
P.O. Kunjaban, P.S. New Capital Complex, Dist. West Tripura
2. The Director,
Higher Education Department, Government of Tripura,
P.O. Agartala, P.S. West Agartala, District- West Tripura
3. The Tripura Public Service Commission,
represented by its Secretary, Akhaura Road, P.O. Agartala,
P.S. West Agartala, District- West Tripura
4. The Secretary cum Commissioner,
Department for Schedule Caste, OBC & Minority,
Government of Tripura, P.O. Kunjaban,
P.S. New Capital Complex, District- West Tripura
... Respondents
BEFORE
THE HON'BLE MR. JUSTICE S. TALAPATRA
For the petitioner : Mr. Arijit Bhowmik, Advocate
For respondents no 1,2 & 4 : Mr. BC Das, Advocate General
For respondent no 3 : Mr. P. Dutta, Advocate
Date of hearing & delivery
of Judgment and Order : 04.05.2017.
Whether fit for reporting : NO
JUDGEMENT AND ORDER (ORAL)
Heard Mr. A. Bhowmik, learned counsel appearing for the petitioner as well as Mr. BC Das, learned Advocate General appearing for the respondents No. 1,2 and 4 and Mr. P. Dutta, learned counsel appearing for the respondent No.3. W.P.(C) No. 864 of 2016 2
2. This case has got a chequered history. The respondents by the employment advertisement No. 08 of 2014 (Annexure P-1 to the writ petition) initiated an exercise for filling up of 150 posts of Assistant Professors, Group 'A' Gazetted in the Government Degree Colleges. In that notification at Serial No. 23, five posts of Geography were verified for appointment. In respect of reservation, the following note was provided in the said Advertisement:
"All posts are grouped for the purpose of reservation and shall not be segregated subject/discipline-wise for identification of a particular post for a particular category against any subject/ discipline. In case of non-availability of required number of suitable ST/SC candidates, the remaining vacancies upto a maximum ceiling of 62 posts will be filled up by suitable General Candidates".
3. After the exercise when a good number of candidates were found that the petitioner and some others were not accommodated by way of selection. They filed a writ petition before this court challenging the entire mode of applying the reservation policy. By the judgment and order dated 26.06.2012 delivered in WP(C) 172 of 2015 [Smt. Bijaya Bhattacharjee vs. The State of Tripura & others and etc.], this court had cancelled the entire process and directed the respondents to segregate the vacancies subject-wise and thereafter to apply the reservation subjects/discipline-wise. For purpose of reference, the operative part of the said judgment is reproduced hereunder:
" We, therefore, allow the writ petitions, set aside the selection of the candidates who have been selected and direct the respondents to abide by the following directions:-W.P.(C) No. 864 of 2016 3
(i) No fresh applications will be invited and only the candidates who have already applied shall only be considered for appointment to the post of Assistant Professor;
(ii) Council of Ministers may, if it so desires, reconsider its earlier resolution dated 11.02.2014 which is embodied in the notification dated 18.02.2014. It is for the Council of Ministers to decide whether it wants to de-reserve the posts or to follow a system of keeping the posts reserved but if requisite number of candidates from the SC/ST categories are not available, then some posts would be treated to be de-reserved;
(iii) That, in case the State decides to de-reserve or decides that in the event of suitable candidates not being available, a particular number of posts will be deemed to be de-reserved, the de-reserved posts shall clearly be indicated subject-wise;
(iv) That, while de-reserving the posts subject-wise, the State shall take into consideration what is the representation of the reserved categories in the teaching faculty in that particular subject and an effort shall be made to reserve posts in those subjects where there are lesser numbers of ST and SC candidates;
(v) In those departments where the ST and SC candidates are already over represented, i.e. they are holding more than their quota of 31% and 17%, posts cannot be reserved for ST and SC candidates;
(vi) The Public Service Commission shall, in the mean time, prepare the API scores of the candidates in accordance with the guidelines laid down by the UGC;
(vii) After preparing the API scores, the Public Service Commission shall call only the topmost 5 candidates for interview where there is only one vacant post, 8 most meritorious candidates as per API scores if there are two vacancies and three times the number of vacancies in all other cases. The candidates shall be called strictly as per the merit in the API scores;
(viii) The TPSC will ensure that in case the posts are meant for ST and SC candidates only the candidates belong to the SC and ST shall be interviewed first. Even in cases where the number of SC and ST candidates are less than the number of posts, first only the SC and ST candidates shall be interviewed and it will be ensured that one of the members of the interview board is a member of the SC or ST, as the case may be;
(ix) Only if requisite number of SC and ST candidates are not available, then the general category candidates shall be called for interview;
(x) However, in case the State Government decides to de-reserve some posts, then those posts shall be treated to be de-reserved and all eligible candidates shall be called for interview strictly in order of merit. There can be no preference or priority to SC or ST candidates in de-reserved posts;
(xi) Thereafter, the Public Service Commission may, if it so desires, create either a classroom with students and may also hold a seminar with all the candidates so that the domain knowledge and teaching skills can be evaluated. The marks to be allotted for this shall be 30 out of 100 as per Table-II(c) of Appendix-III of UGC regulations and we further direct that the proceedings of such seminar/classroom situation must be video-graphed;W.P.(C) No. 864 of 2016 4
(xii) The TPSC may then conduct an interview for 20 marks as per Table-II(c) of Appendix-III of UGC regulations in which all the members of the interview board shall separately award marks and not grades. Though the discussion may take place between the members of the interview board, each member of the interview board will grant individual marks which will be handed over in a sealed cover to the Secretary of the Public Service Commission. At the end of the day, the Secretary of the Public Service Commission shall upload these marks awarded individually by the members of the interview board on to a computer. However, the marks shall not be made public and after all the candidates have been interviewed, then the marks so awarded by the members of the interview board shall be divided by the number of members of the interview board to obtain an average and 20 marks alone shall be allotted for interview;
(xiii) We are not directing videography of the interview but we feel that the Public Service Commission would be well advised to videograph the interview also keeping in view the law laid down more than three decades back in Ajay Hasia's case;
(xiv) We further direct that the entire exercise be completed within 3(three) months from today".
4. For purpose of this writ petition, another paragraph relating to the subject of Geography requires to be reproduced which reads as under:
"We may not have been inclined to direct the State to reserve the posts subject-wise except in the subject of Geography if we had otherwise upheld the selections. However, since we are of the considered view that the selections are illegal and we are also giving time to the State to decide whether de-reservation should be made again and if so, in what manner, we are clearly of the view that the law laid down by the Supreme Court must be followed and in case, the State decides to de- reserve any post, then the de-reservation and reservation should clearly be made subject-wise. While making such reservation/de- reservation, the State shall take into consideration the number of reserved category candidates in a particular subject and if the reserved categories are sufficiently represented, then there can be no reservation in that subject".
5. As it is evident from the said judgment, this court had directed that no fresh application would be invited and only the candidate who had applied shall only be considered for appointment to the post of Assistant Professors. In compliance with the said direction, a fresh notification has been published W.P.(C) No. 864 of 2016 5 by the Tripura Public Service Commission on 23.07.2016 for all those posts. But this time, in the said advertisement/notification dated 23.07.2016, the subject wise allotment of reservation has been clearly shown. Since, we are concerned with the subject of Geography, the position as declared by the Tripura Public Service Commission by the said advertisement/ notification dated 23.07.2016 is as under:
Sl.No. Name of subject Vacancy position No. of posts SC ST 22 Geography 02 Nil 02
6. Mr. Bhowmik, learned counsel appearing for the petitioner has made a clear statement that since there was no UR vacancy available against the subject of Geography, no UR candidates who had applied for the post of Assistant Professor of Geography was not called for interview which commenced from 26.08.2016. Being aggrieved, the petitioner has filed this writ petition praying inter alia to set aside the notification dated 23.07.2006 and to direct the respondents to notify the five posts of Geography as notified by the Advertisement No. 08 of 2014 for direct recruitment for the post of Assistant Professor in the subject of Geography.
7. The mode of clubbing together of the vacancies and allotting reservation in a convenient manner has created a serious anomalous situation so far the representation of the various categories in the cadre of Assistant Professors in the subject of Geography is concerned. It is an admitted position W.P.(C) No. 864 of 2016 6 that after segregation, the position of the available vacancies vis-a-vis in the cadre of Assistant Professor of Geography is as follows:
"2 UR posts and 2 SC posts are lying vacant as the other posts have been occupied by 3 SC candidates, 1 SC Assistant Professor and 7 ST Assistant Professors and the ST candidates have occupies 3 UR posts though they were never considered from the inter-se merit list but they were considered as the reserved category candidates from their own merit position. The cadre strength is 15 and according to the 100 point roster, 8 posts shall go to the UR candidates, 4 posts shall go to the ST candidates and remaining 3 posts will go to the SC candidates. On roster verification what has transpired has already noted that 1 post is occupied by SC Assistant Professor and 7 posts are occupied by the ST Assistant Professors and other 3 posts are occupied by the UR candidates. The remaining 4 posts are lying vacant and out of those 4 posts, 2 posts for SC and 2 posts for UR are lying vacant. In the present exercise, the posts that were advertised was for the reserved category candidates and as such the respondent No. 3 have only considered SC candidates as there was adequate number of candidates who participated in the selection process but they have not entertained in UR candidates for the reasons that even according to the 100 point roster meaning out of 3 ST posts only 1 is physically occupied by 1 SC Assistant Professor and remaining 2 in observance to 100 point roster will go to the SC category candidates".
[Emphasis added]
8. Mr. Bhowmik, learned counsel having been confronted with this development has submitted that to ensure correct representation, 3 posts which are occupied by the ST candidates against UR vacancies be compensated by creation of 3 supernumerary posts of Assistant Professor in the subject of Geography and the General category candidates who applied in response to the Advertisement No. 84 of 2014 shall be considered against those vacancies. Mr. Bhowmik, learned counsel has made another proposition that since the ST candidates have physically occupied for more than what they are entitled to get, 2 SC vacancies as present available, shall be filled up from the UR candidates.
W.P.(C) No. 864 of 20167
9. Mr. Das, learned Advocate General has submitted that there was/is no challenge against the appointment of the ST candidates who are now physically occupying 3 posts from the UR category. Moreover, they were appointed in the year 2010, 2012 and 2013.
10. Having responded to the proposition as launched by Mr. Bhowmik, learned counsel appearing for the petitioner, Mr. Das, learned Advocate General has submitted that there is no requirement at this stage to enhance the cadre. As such, the proposition of creating supernumerary post is not practicable. The cadre cannot be overfed.
11. Mr. Dutta, learned counsel has submitted that the SC candidates are legally entitled to get 2 vacancies by operation of 100 point roster and as such even the exchange rule or the de-reservation rule cannot be applied to entertain the UR candidates against 2 SC vacancies.
12. Having situated thus, this anomalous situation, even though very disturbing, but since for observance of the mode which was inappropriate but remained unchallenged those surplus persons have been appointed through a valid selection process. It would not be advisable to destabilize those persons at this stage. At the same time, this court cannot direct the Government to add additional posts to the cadre in order to tide over this anomalous situation. However, it is left to the Government if they in their wisdom thinks it just that W.P.(C) No. 864 of 2016 8 supernumerary posts can be created, they should take such decision within 6 (six) months from today on cadre review. However, this court is of the further view that the present exercise shall be confined to filling up of the vacancies by 2 SC candidates. The respondents shall take an effort to launch the selection process for filling up of 2 UR vacancies as noted above, and complete the whole exercise within a period of 3 (three) months from today and the applications which the respondent No.3 has received shall be considered valid for the said exercise and the petitioner shall not be required to file a fresh application. But the fresh application shall be invited from the eligible persons who had not applied earlier.
13. With this observation, this writ petition stands disposed of. Interim order, as passed earlier shall stand vacated. There shall be no order as to costs.
A copy of this order be furnished to Mr. BC Das, learned Advocate General and Mr. P. Dutta, learned counsel for doing the needful.
JUDGE Saikat W.P.(C) No. 864 of 2016