Tripura High Court
Wp(C) No.1040/2019 vs The State Of Tripura & Others on 3 October, 2019
Author: Sanjay Karol
Bench: Sanjay Karol, Arindam Lodh
HIGH COURT OF TRIPURA
AGARTALA
1. WP(C) No.1040/2019
Sri Bijoy Krishna Saha & others
---- Petitioner(s).
Versus
The State of Tripura & others
---- Respondent(s).
Connected with
2. WP(C) No.743/2019 Sri Manas Bhowmik
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
3. WP(C) No.757/2019 Sri Balaram Debnath
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
4. WP(C) No.739/2019 Sri Asit Pal
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
Connected with 5. WP(C) No.758/2019 Sri Sanjib Reang
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
Page - 2 of 38 6. WP(C) No.761/2019 Sri Mithun Dey
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
7. WP(C) No.762/2019Smt. Sankari Chakraborty
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
8. WP(C) No.763/2019Sri Shib Narayan Ghosh
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
9. WP(C) No.764/2019Sri Sankar Debnath
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
10. WP(C) No.765/2019Sri Rakhal Deb
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
11. WP(C) No.766/2019Sri Rafiulla Bhuiya
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
Page - 3 of 38 12. WP(C) No.741/2019 Sri Jayanta Sarkar
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
Connected with 13. WP(C) No.755/2019 Smt. Leena Deb
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
14. WP(C) No.756/2019 Sri Chandan Das
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
15. WP(C) No.742/2019 Sri Sanjib Ahir
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
Connected with 16. WP(C) No.767/2019 Sri Sanjit Das
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
Page - 4 of 38 17. WP(C) No.768/2019 Sri Bimal Kanti Das
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
18. WP(C) No.769/2019Sri Tejnarayan Kairi
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
19. WP(C) No.770/2019Sri Tarun Kanti Debbarma
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
20. WP(C) No.771/2019Sri Jinesh Das
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
21. WP(C) No.772/2019 Sri Sudhangshu Malakar
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
22. WP(C) No.773/2019Sri Ranjit Shil
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
Page - 5 of 38 23. WP(C) No.774/2019 Smt. Archita Deb
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
24. WP(C) No.775/2019Sri Mintu Namasudra
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
25. WP(C) No.776/2019Sri Ramraj Ahir
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
26. WP(C) No.777/2019Smt. Brajeswari Sinha
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
27. WP(C) No.778/2019Sri Ranjit Ch. Das
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
28. WP(C) No.779/2019Smt. Sibani Bhattacharjee
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
Page - 6 of 38 29. WP(C) No.780/2019 Smt. Renuka Sinha
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
30. WP(C) No.782/2019Sri Pranesh Datta
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
31. WP(C) No.783/2019Sri Dilip Ghosh
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
32. WP(C) No.784/2019Sri Sukumar Das
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
33. WP(C) No.785/2019Sri Swapan Kumar Das
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
34. WP(C) No.786/2019Sri Sailesh Chandra Das
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
Page - 7 of 38 35. WP(C) No.787/2019 Sri Haripada Debnath
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
36. WP(C) No.788/2019Sri Prasanta Pal
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
37. WP(C) No.789/2019Sri Babul Rabi Das
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
38. WP(C) No.790/2019Smt. Ruma Debbarma
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
39. WP(C) No.791/2019Balai Chand Sarkar
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
40. WP(C) No.792/2019Smt. Nita Dbbarma
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
Page - 8 of 38 41. WP(C) No.793/2019 Sri Gopal Das
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
42. WP(C) No.794/2019Sri Raimohan Das
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
43. WP(C) No.795/2019Sri Narayan Deb
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
44. WP(C) No.796/2019Sri Bidyut Lodh
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
45. WP(C) No.797/2019Sri Bibhu Debbarma
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
46. WP(C) No.798/2019Sri Subhas Chandra Das
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
Page - 9 of 38 47. WP(C) No.799/2019 Sri Tapan Kumar Barman
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
48. WP(C) No.800/2019Sri Baburam Satnami
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
49. WP(C) No.801/2019Sri Nikhil Sinha
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
50. WP(C) No.802/2019Sri Debopam Roy
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
51. WP(C) No.803/2019Sri Supanta Bhattacharjee
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
52. WP(C) No.804/2019Sri Jiban Kanti Debbarma
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
Page - 10 of 38 53. WP(C) No.806/2019 Sri Gopal Chandra De
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
54. WP(C) No.807/2019Sri Bikas Pal
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
55. WP(C) No.808/2019Sri Pradip Kumar Debnath
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
56. WP(C) No.809/2019Sri Sujoy Das Purkyastha
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
57. WP(C) No.810/2019Smt. Samita Acharjee
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
58. WP(C) No.811/2019Sri Ranen Ghosh
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
Page - 11 of 38 59. WP(C) No.812/2019 Sri Digendra Das
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
60. WP(C) No.813/2019Sri Partha Ghosh
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
61. WP(C) No.814/2019Smt. Rejina Debbarma
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
62. WP(C) No.815/2019Sri Gopal Majumder
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
63. WP(C) No.816/2019Sri Kanai Malakar
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
64. WP(C) No.837/2019Smt. Rina Sinha
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
Page - 12 of 38 65. WP(C) No.838/2019 Sri Niren Sinha
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
66. WP(C) No.839/2019Sri Ratan Chandra Das
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
67. WP(C) No.840/2019Sri Himadri Debbarma
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
68. WP(C) No.841/2019Sri Ranjit Kumar Chakraborty
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
69. WP(C) No.842/2019 Sri Asis Banik
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
70. WP(C) No.843/2019Sri Ashok Chakraborty
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
Page - 13 of 38 71. WP(C) No.844/2019 Smt. Boby Debbarma
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
72. WP(C) No.845/2019Sri Kranti Debbarma
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
73. WP(C) No.846/2019Smt. Suchitra Debnath
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
74. WP(C) No.848/2019Sri Bijoy Debbarma
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
75. WP(C) No.852/2019Sri Biplab Datta
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
76. WP(C) No.853/2019Smt. Chandana Das
---- Petitioner(s).
Versus The State of Tripura & Another
---- Respondent(s).
Page - 14 of 38 77. WP(C) No.1200/2019 Shri Ashish Dhar & Others
---- Petitioner(s).
Versus The State of Tripura & others
---- Respondent(s).
78. WP(C) No.1202/2019Sri Uttam Kumar Das & Others
---- Petitioner(s).
Versus The State of Tripura & others
---- Respondent(s).
79. WP(C) No.1203/2019Sri Dulal Chandra Das & Others
---- Petitioner(s).
Versus The State of Tripura & others
---- Respondent(s).
80. WP(C) No.1205/2019Sri Arabinda Debbarma & Others
---- Petitioner(s).
Versus The State of Tripura & others
---- Respondent(s).
81. WP(C) No.1214/2019Sri Rajesh Roy & Others
---- Petitioner(s).
Versus The State of Tripura & others
---- Respondent(s).
82. WP(C) No.1217/2019Sri Sukhendu Debnath & Others
---- Petitioner(s).
Versus The State of Tripura & others
---- Respondent(s).
Page - 15 of 38 83. WP(C) No.1219/2019 Sri Partha Debnath & Others
---- Petitioner(s).
Versus The State of Tripura & others
---- Respondent(s).
84. WP(C) No.1221/2019Smt. Rupa Bhowmik Majumder & Others
---- Petitioner(s).
Versus The State of Tripura & others
---- Respondent(s).
85. WP(C) No.1222/2019Sri Sanjit Bhattacharjee & Others
---- Petitioner(s).
Versus The State of Tripura & others
---- Respondent(s).
BEFORE HON'BLE THE CHIEF JUSTICE MR. SANJAY KAROL HON'BLE MR. JUSTICE ARINDAM LODH For the petitioner(s) : Mr. Sajiv Sen, Sr. Advocate, Mr. Avijit Roy, Advocate, Mr. Bijan Chakraborty, Advocate, Mr.Santanu Chakraborty, Advocate, Mr. Pragyan Pradip Sharma, Advocate, Mr. Somik Deb, Advocate, Mr. B.N. Majumder, Advocate, Mr. P. Saha, Advocate, Mr. S. Pandit, Advocate, Mr. S. Datta, Advocate.
For the respondent(s) : Mr. Arun Kanti Bhowmik, Advocate General, Mr. D. Sharma, Addl. G.A., Mr. K. De, Addl. G.A., Mr. D.C. Saha, Advocate.
Page - 16 of 38
Date of hearing : 01.10.2019.
Date of pronouncement : 03.10.2019.
Whether fit for reporting : YES.
JUDGMENT & ORDER
(Sanjay Karol, C.J.)
Learned counsel, jointly prayed that out of these bunch of writ petitions, 3(three) petitions, i.e. WP(C) No.1040 of 2019, titled as Sri Bijoy Krishna Saha & others vs. The State of Tripura & others, WP(C) No739 of 2019, titled as Sri Asit Pal vs. The State of Tripura & another, and WP(C) No.1200 of 2019, titled as Sri Ashish Dhar & others vs. The State of Tripura & others, be taken up as lead cases.
2. In WP(C) No.1040 of 2019, Mr. Sajiv Sen, learned Sr. Advocate assisted by Mr. Avijit Roy, learned counsel appearing for the instant writ petitioners (hereinafter referred to as "instant petitioners"), has made the following submissions:
(a) Instant petitioners were appointed to the posts of undergraduate, graduate and postgraduate teachers in the year 2010/2014; (b) In none of the petitions/proceedings either before this Court or before the Hon'ble Supreme Court, instant petitioners were parties. The only exception being M.A. No.1726/2018 in SLP(C) Nos.18993-19049/2014 (XIV) which was permitted to be withdrawn reserving liberty to approach this Court vide order dated 02.08.2019; (c) Instant petitioners were never ever impleaded as parties in any one of the proceedings either Page - 17 of 38 before this Court or Hon'ble the Supreme Court. Also they had no notice of pendency of such proceedings; (d) As such, instant petitioners cannot be bound by the decision rendered by this Court in Sri Tanmay Nath & others vs. The State of Tripura & others, (2014) 2 TLR 731; (e) In any case, in para-127 of the judgment rendered in Tanmay Nath (supra), the Court itself protected the services of the instant petitioners, for there is prospective application of the judgment. Relying upon the decision rendered in Jal Mahal Resorts Private Limited vs. K.P. Sharma & others, (2014) 8 SCC 866 (2 Judge Bench), it is argued that in opposing the instant petitions, State cannot be permitted to take a contradictory stand; (f) As such, instant petitioners cannot be bound by the actions taken by the State in issuing memorandums dated 23.12.2017, 04.04.2019; and (g) All teachers, "including those 10,323" whose services stand terminated, be held to be in regular service and entitled to all consequential benefits.
3. Mr. Pragyan Pradip Sharma, learned counsel appearing for the petitioners in WP(C) No.739 of 2019 and other connected matters, submitted that; (a) his clients were appointed in March, 2010 before which date they had already acquired the eligibility in terms of notification issued by the State of Tripura, as required under the Provisions of the National Council for Teacher Education Act, 1993 (hereinafter referred to as the "NCTE Act"); (b) in terms of the selection process undertaken by the State, his clients were appointed as graduate teachers; (c) his clients were never ever Page - 18 of 38 informed of the pendency of any proceedings or impleaded as parties therein and as such, his clients would not be bound by the decision dated 07.05.2014 rendered by this Court in Tanmay Nath (supra) [WP(C) No.51 of 2014 & other connected matters], as affirmed by the Apex Court in SLP(C) Nos.18993-19049/2014 decided on 29.03.2017; (d) also petitioner's representations stood summarily rejected.
4. Mr. Somik Deb, learned counsel appearing for the petitioners in WP(C) No.1200 of 2019 and other connected matters, has in addition, added that; (a) Instant petitioner's representations made pursuant to order passed in writ petitions filed in the year 2018/2019, stands summarily rejected vide order dated 04.04.2019 or similar orders. The order is most cryptic and unreasoned, apart from it not dealing with the issued raised therein; (b) In service matters, principle of Order I Rule 8 of Code of Civil Procedure does not apply and as such, judgment rendered by this Court in Tanmay Nath (supra) cannot be said to be binding upon the instant petitioners.
In support, learned counsel seeks reliance upon (i) Udit Narain Singh Malpaharia vs. Additional Member Board of Revenue, Bihar & another, AIR 1963 SC 786; (4 Judge Bench), (ii) A.M.S. Sushanth & others vs. M. Sujatha & others, (2000) 10 SCC 197; (2 Judge Bench), (iii) All India SC & ST Employees' Association & another vs. A. Arthur Jeen & others, (2001) 6 SCC 380; (2 Judge Bench), (iv) K.H. Siraj vs. High Court of Kerala & others, (2006) 6 SCC 395; (2 Judge Page - 19 of 38 Bench), (v) KM. Rashmi Mishra vs. M.P. Public Service Commission & others, (2006) 12 SCC 724; (2 Judge Bench),
(vi) Sadananda Halo & others vs. Momtaz Ali Sheikh & others, (2008) 4 SCC 619; (2 Judge Bench), (vii) Suresh vs. Yeotmal District Central Cooperative Bank Limited & another, (2008) 12 SCC 558; (2 Judge Bench), (viii) Tridip Kumar Dingal & others vs. State of West Bengal & others, (2009) 1 SCC 768; (2 Judge Bench), (ix) Poonam vs. State of Uttar Pradesh & others, (2016) 2 SCC 779; (2 Judge Bench),
(x) Ranjan Kumar & others vs. State of Bihar & others, (2014) 16 SCC 187; (2 Judge Bench), (xi) Vijay Kumar Kaul & others vs. Union of India & others, (2012) 7 SCC 610; (2 Judge Bench), (xii) Tanmoy Nath & others vs. State of Tripura & others, (2014) 2 TLR 731; (2 Judge Bench), (xiii) Jal Mahal Resorts Private Limited vs. K.P. Sharma & others, (2014) 8 SCC 866. (2 Judge Bench). A brief background to the filing of the instant petitions:
5. Selection and appointment of approximately 10,323 teachers made by the Government of Tripura, pursuant to advertisements issued in the year 2002, 2006 and 2009, being contrary to the provisions of the NCTE Act and the policies including dated 30.08.2003, the basis for such appointments/ selection being arbitrary and illegal was quashed by this Court vide judgment reported in Tanmoy Nath (supra). While doing so, the Court found the selection based purely on an oral interview, to be absolutely irrational and illogical apart from being arbitrary and Page - 20 of 38 exercise of discretion to be full of nepotism and favourism. It further observed that:
"116. We live in a country which is governed by the rule of law. The action of each and every official or Government functionary has to be in accordance with the Constitution. The rule of law is the golden thread which runs through our Constitution. The two most important facets of the rule of law are fairness and equality. Every citizen has a right to equal opportunity of employment and equal treatment at the time of selection. Nobody can deny this right to any citizen of the country and if such right is denied, then this Court shall step in to ensure that justice is done.
117. Article 14 and 16 of the Constitution of India clearly provide that there should be equality to all, especially in terms of matters of employments. Reservations or preferences by whatsoever name called can be granted only in terms of the Constitution and not at the whims and fancies of the Government. The selection process in all cases should be transparent and above board. There should be clear cut guidelines laid down as to how the interview boards are to award marks to the candidates. This cannot be left to the discretion of the members of the interview board. Even in those cases where the Apex Court has upheld the selection of candidates on interviews, the Court has insisted that proper record should be maintained so that it can be determined how the selection has been made. In the present case, the less said about the selection process the better. We with regard to every category of teachers and with every sub-division/division have given examples which clearly show that there was no method followed by the State in making appointments and it is more than apparent to us that the appointments have been made on totally extraneous basis without considering the future of the poor students or the aspirations of the unemployed youth. The whole selection process was a cruel joke on the youth of Tripura."
(emphasis supplied) Page - 21 of 38
6. In allowing the prayers, the Court observed thus:
"121. ....... The selections have been totally unfair. The selections have not been made in a transparent manner. The citizens of this country have not been treated equally. Most of the clauses of the policy are illegal and unconstitutional. The entire policy is bad because it gives no guidelines and, therefore, the entire selection will have to be, must be and is accordingly set aside.
122. Though we have set aside the selections, we are concerned with the education of the small children who are innocent and have no concern with the illegalities of the selection. We, therefore, direct that the teachers whose selections have been set aside shall continue to function in their present place of postings till 31-12-2014, i.e. the end of the academic session of this year.
123. The State on or before 31-12-2014 must complete a fresh process of selection of teachers in all categories. In view of the discussions held above, we direct that the State should frame a new Employment Policy within two months from today and shall carry out selections in accordance with the fresh policy as early as possible and not later than 31-12-2014."
(emphasis supplied)
7. We notice that certain directions were issued to the State for improvising and making the system functional. The relevant portions being para-125, 126, 127 & 128, are reproduced as under:
"125. We would also like to make it clear that other than the benefits indicated by us above there can be no reservation/preference on the basis of age. There shall be no preference to dependent government servants or retired government employee or retrenched employees etc. There can be no reservation for linguistic or religious minorities or on area wise basis. It is further made clear that if the Page - 22 of 38 persons who are selected in the previous selection are again selected then the service rendered by them earlier shall be counted for the purpose of seniority, pension and all other purposes.
126. We may make it clear that the benefit to the candidates on the ground of being needy shall not be granted on the basis of the BPL certificates since we have found that there are no guidelines for issuing the BPL certificates. Other guidelines can also be laid down so that the needy can be identified properly.
127. Since we have set aside the revised employment policy which applies to a large category of posts and not merely to teachers, we would like to make it clear that our judgment shall be prospective in nature and shall not affect the appointments already made unless the said appointments are already under challenge before the Court on the ground that the employment policy is illegal."
(emphasis supplied)
8. It is not in dispute that the said decision [Tanmoy Nath (supra)] was assailed by several parties including the State of Tripura and the Hon'ble Supreme Court while dismissing the petitions vide order dated 29.03.2017, only modified the direction contained in para-123 (reproduced supra). The said order passed in the SLP reads as under:
"We have heard learned counsel for the parties and perused the record. We do not find any ground to interfere with the impugned order.
While setting aside the selections, the High Court in Para 123 of the impugned order observed:
"123. The State on or before 31.12.2014 must complete a fresh process of selection of teachers in all categories. In view of the discussions held above, we Page - 23 of 38 direct that the State should frame a new Employment Policy within two months from today and shall carry out selections in accordance with the fresh policy as early as possible and not later than 31.12.2014."
While issuing notice in the present matters this Court by its order dated 04.08.2014 stayed the directions contained in aforesaid para 123 of the impugned order.
Since we do not find any ground to interfere with the impugned order, the directions in para 123 now required to be suitably modified. We, therefore, direct:
(a) New Employment Policy should be framed by the State by 30th April, 2017 if not already framed and advertisements for filling up the vacancies may be issued latest by 31st, May, 2017.
(b) The fresh selection process be completed on or before 31st December, 2017 and till the fresh process is completed, the teachers already appointed shall continue.
(c) The candidates who participated in the selection process pursuant to the advertisements in question, whether selected or not, will be allowed to participate in the fresh selection process by relaxing their age but subject to their having necessary qualifications.
(d) The qualifications in the case of teachers governed by the provisions of the Right of Children to Free and Compulsory Education Act, 2009 shall be in conformity with the relevant statutory provisions of the said Act.
(e) The qualifications of teachers employed for Classes IX and above shall be strictly in compliance with the relevant provisions concerning such appointments. Subject to the aforesaid modifications, the view taken by the High Court in the impugned order is affirmed and the special leave petitions are dismissed.
Pending application(s), if any, also stand disposed of."
(emphasis supplied) Page - 24 of 38
9. It is not in dispute that pursuant to the said decision, services of the instant petitioners were further allowed to be continued by the Apex Court for a period of 6(six) months, but "on ad-hoc basis" and on such terms as the State Government may impose which is evident from order dated 14.12.2017 passed by the Apex Court in an application filed by some of the selected candidates. The operative portion of the order reads as under:
"Time granted by this Court in terms of order dated 24th October, 2017 is extended till 30th June, 2018, subject to condition that the judgment dated 29th March, 2017 will be strictly complied with. On 31st December, 2017 the tenure of the incumbents will come to an end. Thereafter, their appointment will only for six months on ad-hoc basis on such fresh terms as the State Government may impose.
Thereafter, none of the said incumbents will continue.
No further order in these applications (IA No.125638/2017, MA 1666/2017, MA 1760/2017, IA No.136810/2017, MA 1763/2017).
The same are disposed of."
(emphasis supplied)
10. The impugned memorandum dated 23.12.2017 (Annexure-6 at page-311) stands issued pursuant to such directions, whereby the period of engagement is extended on ad- hoc basis for 6(six) months.
11. Subsequently, vide yet another order dated 01.11.2018, the Apex Court issued certain directions extending Page - 25 of 38 the period of services up to completion of the academic session 2019-2020, which we reproduce as under:
"Having considered the matter, we are of the view that at this stage, we ought to permit the State of Tripura to continue to avail of the services of the terminated teachers until the end of the academic session 2020, meaning the academic session 2019-2020. The above direction has been issued in the peculiar facts of the case and the circumstances which have confronted the State of Tripura and above all, the need to functioning of teaching activities in schools in the State of Tripura remains unaffected."
(emphasis supplied)
12. It is seen that pursuant thereto, some of the instant writ petitioners approached this Court, inter alia, praying for the following common reliefs:
"In the premises aforesaid the petitioner humbly prays that your Lordship may be pleased to issue rule NISI calling upon the respondents to show cause as to why a writ of certiorari should not be issued directing the respondents to produce all records and to quash or cancel and/or set aside the third clause of the memorandum dated 23.12.2017 issued by the Director of Secondary Education (Annexure 9) and to suitably modify the 4th Clause providing for treating the petitioner as continuing in service like he was continuing in service before the issue of this memorandum as if this memorandum was not issued at all to pay his arrears of salary accordingly.
AND For a Writ of Mandamus directing the respondents to treat the petitioner as continuing in service as PG teacher without break due to the memorandum dated 23.12.2017(Annexure) which was issued wrongly and to modify the 4th clause of the said memorandum providing to the petitioner the benefit of continuous service without Page - 26 of 38 interruption by the said memorandum and to pay his arrears salary and to count his service accordingly."
(emphasis supplied)
13. All of such petitions [one out of such batch being WP(C) No.1245/2018 & other connected matters] were withdrawn reserving liberty to the petitioners to approach the State by way of representation which was so made on 18.01.2019 through the President of Tripura Sarkari Karmachari Mahasangha and disposed of vide memorandum dated 04.04.2019 by observing as under:
"Firstly, the claim made to the effect that they were not parties is not correct inasmuch as Graduate Teachers appointed in early 2010 and post Graduate Teachers appointed in August, 2010 on the basis of advertisement published in the year, 2002, 2006 and 2009 were made parties in the concerned writ petition either directly is respondents or under provision of order-I Rule 8 CPC by publication in newspapers under the order of the Hon'ble High Court of Tripura. This issue of alleged impleadment was raised in the Hon'ble Apex Court without any success and consequently the petitioners have no right to raise these issues now.
So far as the other claim of the petitioners to the effect that their appointment was not challenged is not also correct inasmuch as the writ petitioners relating to judgment and order dated 07-05-2014 had not only challenged the revised Employment Policy of 2003 but also challenged appointment of all teachers appointed in 3 spells namely Graduate teachers in early 2010, Post Graduate in August, 2010 and Under Graduate in 2013/2014 totaling to more or less 10323 the petitioners all on the basis of advertisement issued in the year 2002, 2006 and 2009 on the basis of same Revised Employment Policy of 2003.
Page - 27 of 38 There is no scope on the part of the petitioners to get themselves excluded from the operation of the said judgment dated 07-05-2014 passed by the Hon'ble High Court of Tripura. The matter now sought to be raised in the representation were already settled by the aforesaid judgment dated 07-05-2014 and finally by the order of the Hon'ble Supreme Court passed on 29-03-2017 and in view of this position, the present claims of the petitioner raised in the representations appear to be vexatious and wholly unwanted in law and facts. The request for cancelling paragraph-3 of the memorandum dated 23-12-2017 issued by the undersigned and modification of paragraph-4 thereof is totally uncalled for and such an exercise would in fact be violation of the judgment and order passed by the Hon'ble High Court and affirm by the Supreme Court of India."
(emphasis supplied)
14. At this juncture, it be observed that some of the other instant writ petitioners directly approached the Apex Court and the Court disposed of the matter on 02.08.2019 by issuing the following directions:
"CONMT. PET.(C) No.1706/2017 in SLP(C) Nos.18993-19049/2014 On 01.11.2018, this Court permitted State of Tripura to avail services of terminated teachers until the end of the Academic Session 2019-2020. The observations in that behalf were as under:
"... Having considered the matter, we are of the view that at this stage, we ought to permit the State of Tripura to continue to avail of the services of the terminated teachers until the end of the academic session 2020, meaning the academic session 2019- 2020. The above direction has been issued in the peculiar facts of the case and the circumstances which have confronted the State of Tripura and above all, Page - 28 of 38 the need to functioning of teaching activities in schools in the State of Tripura remains unaffected. ..."
The affidavit reporting compliance has since then been filed on 24.04.2019 indicating various steps taken and endeavours made by the State.
In view of the affidavit, nothing further need be done in the matter. This Contempt Petition is closed. MA No.1726/2018 in SLP(C) Nos.18993-19049/2014 (XIV) Since the Contempt Petition is being closed, Mr. Jaideep Gupta, learned senior Advocate in support of IA No.103203/2019 in MA No.1726/2018 submitted that he be given liberty to withdraw this application to approach the High Court.
The liberty is granted. The application if preferred, may be considered by the High Court purely in accordance with law.
We have not and shall not be taken to have expressed any opinion on the merits or demerits of the contentions."
(emphasis supplied)
15. In the aforesaid factual narration, we proceed to decide the present petitions.
Findings:
16. The core issue which arises for consideration is as to whether the instant writ petitioner(s) can be allowed to reopen the issues decided by this Court in Tanmay Nath (supra), as affirmed by the Apex Court vide order dated 29.03.2017 on the ground that; (a) this termination is illegal on account of violation of principles of natural justice, inasmuch as no notice stood issued to Page - 29 of 38 them, nor were they impleaded as parties to such proceedings;
(b) the services of the petitioners stand protected by and in terms of the directions contained in para-127 of the very judgment; (c) whether the impugned memorandum extending the period of services on ad-hoc basis and rejecting the representations should be quashed or not.
17. In WP(C) No.51 of 2014, titled as Tanmoy Nath (supra), the Court vide order dated 06.02.2014 had directed issuance of a public notice since large number of parties (4000) were likely to be affected. Pursuant thereto, notices dated 21.02.2014 were issued in two newspapers namely, Dainik Sambad and Daily Desher Katha respectively.
During the pendency of the hearing, we had called for the record of WP(C) No.208 of 2010, titled as Shri Sudhan Majumder & others vs. The State of Tripura & others, also disposed of with Tanmoy Nath (supra), and noticed that public notice dated 08.12.2010 was issued in the daily newspaper namely "Syandan Patrika" informing the general public of the pendency of the petitions and the Court dealing with the matters with regard to the appointment of graduate teachers. Also there is an order dated 24.11.2010 in C.M. Appl. No.223/2010 in c/w WP(C) No.208 of 2010 to such an effect.
18. As such, at this stage, instant writ petitioners cannot be allowed to reopen the entire issue, purely on the ground of their non-impleadment as parties or non-issuance of notice to Page - 30 of 38 them. Who are the petitioners? Are they illiterate rustic villagers, hailing from the most deprived strata of the society having no access to justice, also not knowing its procedures? Most certainly not. They are educated Government employees posted at several places within the State. Can it be said that they were not aware of the proceedings laying challenge to the appointments made with regard to more than 10,000 posts of different categories of teachers appointed by the Government, pursuant to the advertisement issued in the year 2002, 2006 and 2009? The answer obviously lies in the negative and the reason is two-fold. The pendency of the original writ petitions was widely circulated, as we are informed, throughout the State, both in the print and electronic media. So also was its outcome made known. It sent ripples throughout the State. Not only that, prior to rendering of the judgment in Tanmay Nath (supra), this Court had directed issuance of notice to be published in the newspaper, which was also done. To contend that such directions or notice were confined only with respect to certain category of teachers and as such, cannot be construed to be a notice qua other categories is not acceptable. Teachers in Tripura are a close-knit fraternity. They also have a union who has been pursuing the matter at different levels. It is true that in a service matter, principles laid down under Order I Rule 8 of CPC may not apply, but then this Court was dealing with a case where as it stood observed, that the action of the Government was "a cruel joke on the people of Tripura". The entire selection process was held to be absolutely arbitrary, capricious and whimsical. It smacked of nothing less Page - 31 of 38 than nepotism and favourism. Prudently, the writ Court thought it fit to issue a general notice and not implead all of the 10,323 selected candidates as party respondents, some of whom, in any case, were before this Court. In a representative capacity, the petitions were considered, argued and decided.
19. Significantly, none of the instant petitioners laid any challenge to the judgment rendered by this Court in Tanmay Nath (supra). Neither did they seek review, nor did they file any appeal. Why so? remains a shrouded secret. With the dismissal of the Special Leave Petition on 29.03.2017, and their appointment conclusively found to be illegal, they ought to have returned home, but for the extensions granted by the Apex Court vide orders dated 14.12.2017 and 01.11.2018 (reproduced supra) [paras-9 & 10]. Even at that point in time, they did not express their concern or raise any protest of violation of principles of natural justice; the issue of their non-impleadment or of the order passed behind their back. It is not that they were sitting in a penance or meditating in the Himalayas, totally cut off from the worldly affairs. Obviously they were waiting in the wings and only when they fell out favour of a lady fortune, inasmuch as time extended by the Apex Court is expiring, and otherwise not having qualified, they took steps, speculative in nature, of having the entire issue reopened by challenging the judgment of this Court in Tanmay Nath (supra). We find their such act and conduct to be absolutely despicable. By raising one false plea after the other, somehow they are just trying to cling to the post, to which they Page - 32 of 38 were illegally appointed and thereby scuttle the due process of fresh selection and appointment wrongfully depriving the eligible candidates.
20. Contention that in the absence of the instant petitioners impleaded as parties in the petitions subject matter of Tanmoy Nath (supra), this Court should direct continuance of their appointment, more so, in the light of ratio laid down in Udit Narain Singh Malpaharia (supra), A.M.S. Sushanth (supra), A. Arthur Jeen (supra), K.H. Siraj (supra), Rashmi Mishra (supra), Sadananda Halo (supra), Suresh (supra), Tridip Kumar Dingal (supra), Poonam (supra), Ranjan Kumar (supra), Vijay Kumar Kaul (supra), and Jal Mahal Resorts (supra), is absolutely fallacious. At this point in time, it is not open for the respondents to take such a plea, more so when everyone was made aware of the proceedings pending before this Court, by way of public notice. In the cited decisions, what weighed was interest of an individual and not general public interest, in formulating a policy which was held to be illegal so also appointments made thereunder.
21. We may only remind the petitioners of what stood observed by the Apex Court in Dwarka Nath Sharma vs. Union of India & others, 1989 Supp (2) SCC 225 (2 Judge Bench), though in the context of preparation of a seniority list, but relevant herein. The relevant portion reads as under:
"9. Strictly speaking, Janardhana's decision may not have the effect of res Judicata for the present litigation, Page - 33 of 38 but we do not think in a dispute of the present dimension where hundreds of employees are concerned, it would be proper for the employees to litigate over the same issues from time to time. If it would be open to members of the service from time to time to raise disputes of the same nature and introduce uncertainty into the service, that would affect the efficiency of the service and would be against public interest. That also would call into jeopardy the guarantees of public service and expose the officers into an atmosphere of insecurity. A seniority list of a cadre should not be made the subject matter of debate too often. We have, therefore, to consider the claim of the appellant keeping these aspects in view and referring to the conclusions reached in Janardhana's case."
22. In fact, we find their stand to be self-contradictory. On one hand, they lay challenge to the judgment quashing their appointments, whereas on the other hand they seek protection thereunder by relying upon para-127 (reproduced supra).
23. Even on the second point, we find the plea to be absolutely fallacious, if not dishonest. Petitioner's contention that the judgment was to apply prospectively and not affect the appointments already made is absolutely misplaced and misconceived. In para-121 reproduced supra, this Court had specifically set aside the entire selection process and appointments made pursuant to the policy framed by the State. Only to protect and safeguard the interest of the children, so as not to adversely affect their studies, the selected candidates were allowed to function till the end of the academic session, i.e. 31.12.2014.
Page - 34 of 38
24. Para-127 of the said judgment cannot be read in isolation. It has to be read contextually in the backdrop of the entire judgment. It is seen that from para-123 up to para-126, the Court issued certain directions with regard to the framing of new employment policy. If the State were not to comply with such directions, the Court itself laid down the criteria for initiating the selection process for appointment of teachers in various categories. The manner and the basis on which reservation was to be made were also discussed. The Court was conscious of the fact that policy was not confined only to the post of different category of teachers. It was a broad based policy, covering all categories of employees. Since challenge in the original writ petitions was confined only to the teachers (of all categories), it is in this backdrop, the Court refrained from passing any order quashing appointments made with respect to other category(s) of posts and restricted the relief only to the teachers of all categories. Since new employment policy was to be framed by the State, the Court protected "the said appointment", unless they were subjected to challenge before the Court on the ground that their employment being illegal. This is how we read para-127 of the judgment. It is not that appointment of teachers belonging to all categories, i.e. undergraduate, graduate and postgraduate stood protected by the Court, for acceptance of such a contention would render the judgment to be nugatory, apart from making it appear inherently contradictory. Para-127 has to be read in the light of para-121 and 122 (reproduced supra) of the judgment.
Page - 35 of 38
25. The judgment cannot be read out of context. One word, i.e. "prospective" cannot be read in isolation in interpreting and understanding the ratio of the judgment. The entire factual matrix is necessarily required to be kept in mind. This position is well settled. Every judgment is covered and qualified by its particular facts.
26. The issue as to whether the judgment is to apply prospectively or retrospectively came up for consideration before the Apex Court in Goan Real Estate and Construction Limited & another vs. Union of India & others, (2010) 5 SCC 388 (2 Judge Bench) and the Court observed as under:
"34. It is pertinent to note that while interpreting the judgment, public interest should be taken into consideration. In Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors. (1993) 4 SCC 727, this Court considered the factors which are to be taken into consideration while giving prospective operation to a judgment. When judicial discretion has been exercised to establish a new norm, the question emerges whether it would be applied retrospectively to the past transactions or prospectively to the transactions in future only. This process is limited not only to common law traditions, but exists in all jurisdictions. It is, therefore, for the Court to decide, on a balance of all relevant considerations, whether a decision which unsettles the previous position of law should be applied retrospectively or not. The Court would look into the justifiable reliance on the previous position by the Administration; ability to effectuate the new rule adopted in the overruling case without doing injustice, whether its operation is likely to burden the administration of justice substantially or would retard the purpose. All these factors are to be taken into account while determining whether a judgment is prospective or otherwise. The Court would Page - 36 of 38 adopt either the retroactive or non-retroactive effect of a decision after evaluating the merits and demerits of a particular case by looking to the prior history of the rule in question, its purpose and effect and whether retroactive operation will accelerate or retard the object of the judgment. The purpose of the old rule, the mischief sought to be prevented by the judgment and the public interest are equally germane and should be taken into account in deciding whether the judgment has prospective or retrospective operation. It is well known that the courts do make the law to prevent administrative chaos and to meet ends of justice. Taking into consideration all these factors, this Court refuses to interpret the 1996 judgment in a manner which would give it a retrospective effect. It is clear from the tenor of judgment and from other background circumstances, more importantly in view of decisions of NCZMA which is a statutory body that Three Judge Bench decision in 1996 case intended to give it prospective effect.
35. The Court would adopt either the retroactive or non-retroactive effect of a decision after evaluating the merits and demerits of a particular case by looking to the prior history of the rule in question, its purpose and effect and whether retroactive operation will accelerate or retard the object of the judgment. The purpose of the old rule, the mischief sought to be prevented by the judgment and the public interest are equally germane and should be taken into account in deciding whether the judgment has prospective or retrospective operation. It is well known that the courts do make the law to prevent administrative chaos and to meet ends of justice. Taking into consideration all these factors, this Court refuses to interpret the 1996 judgment in a manner which would give it a retrospective effect. It is clear from the tenor of judgment and from other background circumstances, more importantly in view of decisions of NCZMA which is a statutory body that Three Judge Bench decision in 1996 case intended to give it prospective effect."
Page - 37 of 38
27. The Apex Court while passing the orders dated 14.12.2017, 01.11.2018 and 02.08.2019 (reproduced supra) did not allow the petitioners or anyone of the affected employees to raise pleas and contentions sought to be done here and at this point in time.
28. We may also observe that when some of the petitioners approached this Court by filing WP(C) No.1245/2018 & other connected matters, this Court allowed the petitions to be withdrawn reserving liberty to represent to the Government. It may be that the Government has not dealt with every aspect of the matter, but then they were not even required to do so, for the issue stood conclusively decided by the Apex Court and it is not the law that every representation is to be considered and decided point wise, dealing with all of the contentions raised, for the duty to decide the representation emanates not from any statute. As such, memorandum dated 04.04.2019 need not be quashed.
29. In effect, instant petitioners are seeking review of the judgment rendered in Tanmoy Nath (supra) which is not permissible in law, more so on the doctrine of merger. We hasten to add that the issues stand decided only as the Hon'ble Supreme Court granted liberty allowing the instant petitioners to agitate the same before us.
30. State is duty bound, under the constitution, to see proper and effective implementation of the judgment rendered by the Apex Court.
Page - 38 of 38
31. In view of above discussion, the present bunch of instant writ petitions, being an abuse of process of law and speculative in nature, stand dismissed.
We refrain from imposing costs.
32. Pending application(s), if any, also stands disposed of. (ARINDAM LODH), J (SANJAY KAROL), CJ Pulak/Anjan