Tripura High Court
The State Of Tripura vs Sri Pratik Saha on 11 August, 2021
Bench: Akil Kureshi, S.G. Chattopadhyay
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HIGH COURT OF TRIPURA
AGARTALA
W.A. No.229/2020
1. The State of Tripura,
Represented by its Secretary to the Government of Tripura,
Department of Higher Education, PO- Agartala, District- West Tripura.
2. The Tripura Public Service Commission,
Represented by Chairman, Akhaura Road, Agartala, Pin- 799001.
3. The Secretary,
Tripura Public Service Commission, Represented by Chairman,
Akhaura Road, Agartala, Pin - 799001.
.....Appellant(s)
Versus
1. Sri Pratik Saha,
S/o Sri Paritosh Saha, C/o. Mrinmoy Das, Resident of Ramnagar,
Road No.4, PO- Ramnagar, Agartala, District-West Tripura,
Pin- 799002.
2. Sri Jayanta Choudhury,
Son of Sri Swadesh Krishna Choudhury, resident of Kunjaban Colony,
PO - Abhoynagar, Mahadeb Bari Road, District - West Tripura,
Agartala, PIN - 799005.
3. Sri Ajay Rudra Pal,
Son of Sri Anil Rudra Pal, C/o. Lt. Sanjoy Bhowmik, Dhaleswar Road
No. 11, Agartala, West Tripura, Pin - 799005.
4. Smt. Rupa Debbarma,
D/o, Sri Samiran Debbarma, 17/3, Thakurpally Road, Krishnanagar,
Agartala, Pin- 799002.
5. Sri Subharasmita Majumder,
D/o. Sri Lal Mohan Majumder, Udaipur Housing Board Quarter,
Type - 3, No.4, District Gomati Tripura, Pin -799120
6. Sri Jiban Jamati,
S/o, Sri Pabitra Sadhan Jamatia, Uttar Chhaimarua, Kami Killa,
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District- Gomati Tripura, Pin- 799114.
7. Sri Partha Sarkar,
S/o Sri Pralladh Sarkar, Madhya Nayapara, Dharmanagar,
North Tripura, Pin- 799205.
8. Smt. Chandini Debbarma,
D/o Lt. Chasiya Debbarma, Krishnanagar, Agartala, Opposite to BJP
Party Office, Pin- 799001.
9. Sri Shakyasen Debnath,
S/o Sri Basu Kumar Debnath, Pragati Road, Opposite to Narapara Auto
Stand, Dharmanagar, North Tripura.
.....Respondent(s)
For Appellant(s) : Mr. Debalay Bhattacharjee, GA.
Mr. S. Saha, Advocate.
For Respondent(s) : Mrs. Sujata Deb (Gupta), Advocate.
Mr. Raju Datta, Advocate.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
Date of hearing : 13.07.2021.
Date of delivery of : 11.08.2021.
Judgment & order
Whether fit for reporting : No.
JUDGMENT & ORDER
(Akil Kureshi, CJ).
This Appeal is filed by the State Government to challenge the judgment of the learned Single Judge dated 02.03.2020 passed in W.P. (C) No.1097 of 2018.
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2. This litigation has long history. Briefly stated the facts are as under:
Under an advertisement No.05/2016, the Tripura Public Service Commission („TPSC‟, for short) notified 65 vacancies in different disciplines for the post of Lecturers, Diploma Level Technical Institution, Government of Tripura and invited applications from eligible candidates.
All the respondents herein, the original petitioners before the Single Judge had necessary educational and other qualifications for the posts in question. They applied in response to the said advertisement. Written examination was conducted on 18.07.2017 and 20.07.2017. The result of the written examination was published on 12.10.2017. All the petitioners succeeded in the written examination and they were therefore, called for oral interviews, which were conducted in November, 2017.
3. In the meantime, Jayanta Choudhury petitioner No.2 herein had filed W.P. (C) No.1404 of 2017 before the High Court and questioned the decision of the TPSC to apply the procedure laid down in Memorandum dated 30.03.2017 for oral interviews. As per this Memorandum, for non- scheduled examinations personality test would consist of 100 marks to be divided into two parts i.e. 50 marks for academic performance and 50 marks for viva-voce. The contention of the petitioner Jayanta Choudhury was that allotment of marks of academic performance was impermissible. Page 4 of 16
4. By an order dated 10.11.2017 while issuing notice on the said petition of Jayanta Choudhury, learned single judge restrained the TPSC and the State Government from publishing the outcome of the selection process without permission of the Court. Thus, pending the said petition of Jayanta Choudhury, the interviews as scheduled were conducted. The results were withheld.
5. This writ petition of Jayanta Chaudhuri came to be disposed of by the learned Single Judge by a judgment dated 29.06.2018 holding that certain clauses of the said O.M. dated 30.03.2017 are irreconcilable. The following directions were therefore issued:
"24. In view of what has been observed and what has been found from the records produced that the TPSC-respondents followed the procedure as engrafted in clause-2 of the said memorandum dated 30.03.2017. They shall, as consequence of the observation aobe, revisit their recommendation by cancelling what they have made up and thereafter shall make the necessary recommendation by following the notification dated 29.11.2007 for the post of Lecturer, Diploma Level in the Technical Institutions in Tripura.
In terms of the above, this writ petition stands allowed."
6. The record would suggest that the TPSC and the State Government accepted the decision of the learned Single Judge and the said judgment Page 5 of 16 therefore achieved finality without further challenge. Since after the decision of the Single Judge in case of Jayanta Choudhury (supra), there was no further movement on part of the TPSC, the petitioners issued a notice to the respondents on 15.10.2018 requesting to complete the selection process as per the judgment of the High Court. Since despite this notice, the selection process was not undertaken further, the petitioners filed the present petition W.P. (C) No.1097 of 2018 and prayed for a direction to the respondents to complete the selection process as per the decision of this Court in case of Jayanta Choudhury (supra).
7. In the said petition, the State Government and TPSC appeared and filed replies. TPSC in its reply dated 21.12.2018, took the stand that the General Administration Department of Government of Tripura had issued a Memorandum dated 14.03.2018 communicating that the State Government has decided that the recruitment processes of the Government shall be reviewed and pending such review all ongoing selection and recruitment processes under the Government would be kept in abeyance. Thereafter, the Government of Tripura issued another O.M. on 20.08.2018 stating that the Government had notified a new recruitment policy on 05.06.2018 and all new appointments shall be made as per the said new recruitment policy and all existing processes initiated by the respective departments or TPSC stand cancelled. Under a letter dated 05.09.2018, Page 6 of 16 TPSC drew attention of the Government to the judgment of the High Court in case of Jayanta Choudhury (supra) and to re-examine the implication of the judgment on the recruitment process. Under a letter dated 12.10.2018, the Government communicated to the TPSC that a fresh proposal is being initiated by the State Government for filling up the vacancies in question and suggested that the TPSC should take action for framing modalities and process to be followed for screening and selection in compliance with AICTE Regulations and new recruitment policy of the State Government.
8. The State Government in its reply dated 28.02.2019 had also relied on the new recruitment policy of the Government pursuant to which all existing ongoing recruitment processes were cancelled. It was pointed out that a Notification was issued also by TPSC on 13.11.2018 cancelling the present recruitment process.
9. An additional affidavit was filed by the State Government on 17.01.2020 highlighting that the purpose of framing new recruitment policy is to minimize the scope of viva-voce in order to ensure fairness in selection process.
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10. The learned Single Judge disposed of the petition by the impugned judgment dated 02.03.2020 in which referring to and relying upon the decision of this Court in case of Sri Samudra Debarma vs. State of Tripura and others dated 14.05.2019 in W.P. (C) No.831 of 2018, the learned Judge held that the new recruitment policy could not have been applied retrospectively. The respondents were, therefore, directed to complete the selection process as per the judgment in case of Jayanta Choudhury (supra). Following observations of the learned Single Judge may be noted:
"[13] Some other decisions have also been relied on in respect of the change of rules in the mid of the recruitment process but in this case what is noticeable primarily is that without bringing any change in the recruitment rules based on which the TPSC initiated the selection process, the rules of the recruitment have been suddenly changed by way of so called policy. Even in the policy it has been stated that those polices would be prospective in nature, but it appears that the operation has been given retrospectively. This aspect of the matter has elaborately been discussed in the judgment dated 14.05.2019 in W.P(C) No.831 of 2018 [Sri Samundra Debbarma vs. State of Tripura & Ors.] and that part of the finding and observation has been affirmed by the judgment dated 03.12.2019 delivered in W.A. No.142 of 2019. Thus, there cannot be any different approach by this court. Under the same parameters, the recruitment process which has been initiated by the advertisement No.05 of 2016 has to be protected by this court by setting aside the notification dated 13.11.2018 [Annexure-7 to the writ petition]. Accordingly, the said notification is set aside. The Page 8 of 16 respondents No.2 & 3 are directed to complete the entire process of selection in terms of the judgment and order dated 29.06.2018 delivered in W.P.(C) No.1404 of 2017 [Sri Jayanta Choudhury vs. State of Tripura & Ors.] and thereafter, make the appropriate recommendation for appointment. It is made absolutely clear that this direction is only confined to the 65 [sixty five] posts of Lecturer, Diploma Level in the Technical Institutions in Tripura as reflected in the Advertisement No.05 of 2016.
Having observed thus, this writ petition stands allowed to the extent as indicated above.
There shall be no order as to costs."
11. Learned Government Advocate submitted that the State Government had framed new recruitment policy to eliminate the scope of arbitrariness in selection processes for public posts. The State Government had decided to apply the new recruitment policy to all ongoing recruitments. The learned Single Judge committed a serious error in holding that such new recruitment policy should not be applied in the present case. Counsel pointed out that the decision of learned Single Judge in case of Samudra Debbarma (supra) was challenged by the Government in Writ Appeal No.142 of 2019. This Writ Appeal was dismissed, however, the State Government has approached the Supreme Court and Special Leave is granted and the judgment of the High Court is stayed. He contended that Page 9 of 16 the learned Single Judge in the impugned judgment has relied entirely in the decision in case of Samudra Debbarma (supra).
12. Learned counsel relied on the decision in case of Gohil Vishvaraj Hanubhai and others vs. State of Gujarat and others, reported in (2017) 13 SCC 621. However, we find that in the said case, the question involved was of cancellation of the entire selection process on account of large scale malpractice having been detected.
13. He also relied on the decision in case of State of Manipur and another vs. Takhelmayum Khelendro Meitei and others, reported in (2019) 3 SCC 331 to contend that a selected candidate has no indefeasible right to appoint.
14. On the other hand, the learned counsel for the original petitioners Mrs. Sujata Deb (Gupta) opposed the Appeal contending that the entire selection process was over at one stage. Pending the petition filed by Jayanta Choudhury, the learned Single Judge permitted the TPSC to continue the viva-voce test. However, after the learned Single Judge rendered the judgment in case of Jayanta Choudhury (supra), the TPSC would have to conduct fresh interviews, which should be on the basis of the then existing recruitment policy of the year 2007. The petitioners are Page 10 of 16 waiting for the recruitments since more than 5 years. On the other hand, teaching posts in Government Technical Institution are lying vacant since years together. The petitioners, therefore, would not object to the fresh interviews which the TPSC would have to conduct by virtue of the judgment of the Single Judge in case of Jayanta Choudhury (supra) to be based on the ceiling of marks for oral interviews as prescribed by the Government in its new recruitment policy framed under Notification dated 05.06.2018.
15. The question whether the TPSC and State authorities can be allowed to apply the new recruitment policy dated 05.06.2018 in the current selection process, is undoubtedly relevant. We may recall, the State Government had stopped all ongoing recruitment processes pending formulation of a new recruitment policy, which was notified on 05.06.2018. As per this policy, for Group-B and C posts ordinarily there would not be oral interviews and in case of justification provided by the department, interviews may be permitted, however, the weightage of marks for oral interview should not exceed 10% of the total marks. In this policy, it is further provided that in case of Group-A, B and C posts, which are to be filled by TPSC, the same would continue to be filled as per the existing practice. However, in such cases also weightage of the interview should not exceed 10% of the total marks and only in exceptional cases Page 11 of 16 such weightage may increase beyond 10% with the approval of the cabinet. Relevant portion of this Notification reads as under:
"1.3 Interview should ordinarily, not be taken for B and C category of posts. However, only in exceptional circumstances, for certain categories of Group B and C posts, where justification is given by the Department concerned, provision for interview/skill test may be kept with prior approval of the Cabinet. Further, whereever such a provision is kept, the weightage for interview/skill test should not exceed 10% of total marks and the interview should be video-graphed.
1.4 The Group-A, Group-B and C posts which are at present covered by TPSC will continue to be filled as per the existing practice. However, weightage for the interview should not exceed 10% of total marks. In exceptional case weightage of interview may be increased beyond 10% with the approval of cabinet, if sufficient justification exists." (emphasis supplied by us)
16. In case of Samudra Debbarma (supra), the TPSC had initiated recruitment process for filling up TCS Grade-II and TPS Grade-II (Group-
A Gazetted) posts in the year 2016. When this selection process was at an advanced stage, the Government of Tripura framed the new recruitment policy under the said Notification dated 05.06.2018. This new recruitment policy were sought to be applied to the ongoing selection process. The petitioner Samudra Debbarma approached the High Court and challenged the action of the respondents. The learned Single Judge by the judgment Page 12 of 16 dated 14.05.2019 quashed the decision of the Government to cancel the selection process on two grounds. Firstly, according to the learned judge, the recruitment rules cannot be changed midway through the selection process and secondly, that in any case, the new recruitment policy could not be applied with retrospective effect.
17. The decision of the Single Judge in case of Samudra Debbarma (supra) was challenged by the State Government by filing Writ Appeal No.142 of 2019. The Division Bench by a judgment dated 03.12.2019 rejected the said Appeal holding that the new recruitment policy could not have been applied as the selection process had reached at advanced stage. It was noticed that in the existing selection process, the TPSC had allotted 11% marks to the oral interview whereas as per the new recruitment policy of the Government, oral interview marks should be 10% of the total marks. For such a minor change, the recruitment policy in any case should not be applied to cancel the selection process which had reached an advanced stage. It was also held that the prescription of marks for oral interviews was on the basis of statutory regulations which could not have been superseded by executive instructions. The State also preferred Review Petition 1 of 2020 in the said case which was dismissed on 13.1.2020. Page 13 of 16
18. Ordinarily, we would have applied the said principles in the present case also. However, one development as pointed out by the Government Advocate is that in the state Appeal before the Supreme Court against the judgment of Samudra Debbarma (supra), the decision of this Court is stayed. Despite this piquant situation, in our opinion, a fair equitable and perfectly legal way out is possibly of this unfortunate impasse.
19. We may recall, even as per the new recruitment policy, the existing practice in case of Group-A, B and C posts to be filled up through TPSC would continue with a rider that the weightage for oral interview should exceed 10% of the total marks. We have recorded the statement of Mrs. Deb (Gupta) for the original petitioners which repeated here that the petitioners would not object to the entire selection process being completed by applying this principle of the weightage of oral interview not exceeding 10% of the total marks. Whatever be the previous formula, the remaining selection process, in our opinion, can be completed by allowing TPSC to conduct fresh oral interviews and drawing the select list on the basis of the written examinations already conducted and the result of the oral interviews by providing not more than 10% weightage to the oral interview. This will completely take care of the anxiety of the State Government to limit the marks for oral interview in selection processes. Effectively, this would ensure applicability of the new recruitment policy Page 14 of 16 dated 05.06.2018 to the present selection process. We are conscious that pending the petition of Jayanta Choudhury, the TPSC was allowed to conduct the oral interviews as originally scheduled. However, these oral interviews were based on 50 marks to be allotted to academic performance which has not been approved by the Single Judge in case of Jayanta Choudhury (supra). The TPSC, therefore, must conduct fresh interviews of all candidates, who have passed the written examination by applying the ceiling of 10% weightage for viva-voce. How much weightage the oral interview should carry not exceeding 10%, may be left to the discretion of the TPSC and the State Government.
20. However, to allow the State Government to annul the entire selection process would be neither permissible nor desirable. As many as 65 vacancies were notified in the year 2016. These vacancies must have arisen earlier. These vacancies pertain to teaching posts in Government Technical Institution. These vacancies, therefore, must be filled up at the earliest. It is unfortunate that because of one legal challenge after another coupled with the State decision to change the recruitment policy midway through the selection process, such important vacancies in such large numbers have remained un-filled for over 5 years. Allowing the State Government to cancel the entire selection process by inviting fresh applications and holding entire fresh selection process including written Page 15 of 16 examinations would further delay the process for filling up these posts. As noted, by allowing the TPSC to complete the remaining selection process by conducting oral interviews by limiting the weightage for such interviews to not more than 10% of the total marks would in any case subserve the purpose of the State Government expressed in the new recruitment policy. We may recall, the main thrust of the new recruitment policy was to eliminate or at least limit the proportion of marks for oral interviews in order to restrict the personal and discretionary element in selection and appointment on public posts. Effectively, all material provisions of the new recruitment policy would be applied in the present case, which in any case, is the desire of the State Government.
21. In the result, the Appeal is disposed of with following directions:
(i) The decision of the Single Judge setting aside the Notification dated 13.11.2018 by which the State Government had cancelled the selection process in the present case is confirmed.
(ii) The TPSC shall continue the existing selection process and complete the same by holding fresh oral interviews of all candidates who had qualified in the written examination. Such interview would be held in consonance with the new recruitment policy dated 05.06.2018 by limiting the weightage of the oral interviews to not more than 10% of the total marks.Page 16 of 16
(iii) It would be open for the TPSC to device further procedure for conducting such oral interview. However, the same shall be bearing in mind the directions contained hereinabove and also the decision of the learned Single Judge in case of Jayanta Choudhury (supra).
(iv) Entire process shall be completed within 6 (six) months from today.
22. The judgment of the learned Single Judge is modified to the above extent.
23. Appeal disposed of accordingly. Pending application, if any, also stands disposed of.
(S.G. CHATTOPADHYAY), J (AKIL KURESHI), CJ sima