Gauhati High Court
Diptendu Bhattacharjee vs State Of Tripura And Ors. on 4 December, 2006
Equivalent citations: (2007)2GLR551
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
JUDGMENT Hrishikesh Roy, J.
1. The writ petitioner, who is serving as a Lecturer (Selection Grade) in the discipline of Electrical Engineering in Tripura Engineering College has filed the present petition challenging the selection made to the post of Assistant Professors in various disciplines in pursuant to the advertisement No. 2/2004 dated 1.3.2004, issued by the Tripura Public Service Commission (hereinafter referred to as "Commission'). The petitioner claims that he has an uniformly brilliant academic record and is a B.E. Degree holder in Electronics. He has also obtained postgraduate degree, i.e. M.E. Tel.E. in Computer Engineering from Jadavpur University in the year 1999. He also claims other academic achievements and asserts that he is eligible for being considered an appointment to the higher post of Assistant Professor.
By an advertisement No. 2/2004 dated 1.3.2004 the Commission invited applications from eligible candidates to 17 posts of Assistant Professors in the discipline of Civil (4 posts), Mechanical (4 posts), Electrical (4 posts), Computer Science and Engineering (1 post). Economics (1 post), Mathematics (1 post), Physics (1 post) and Chemistry (1 post). Of the 17 posts advertised, it was notified that three posts are reserved for Scheduled Caste category candidates and five posts are reserved for Scheduled Tribe category candidates and consequently, nine posts were for unreserved category candidates. However, in the said advertisement, it was not indicated as to which of the advertised posts would be considered within the reserved category and which would be considered within the open category.
The writ petitioner applied in response to the aforesaid advertisement for posts in two disciplines, namely, Electrical Engineering as well as Computer Science and Engineering. However, the petitioner was not considered to have the eligibility for being considered for the post of Assistant Professor in Electrical Engineering and was considered accordingly, only for the post in the Computer Science and Engineering discipline, by the Commission.
In the advertisement dated 1.3.2004, the Commission had indicated that the qualifications prescribed are minimum and where the number of applicants are large and where it may not be deemed feasible to interview all the applicants, the Commission may restrict the number of candidates for interviews to a reasonable limit on the basis of qualifications and experience higher than the minimum prescribed in the advertisement or by holding a screening test. However, considering the limited number of applicants, the selection was made by the Commission on the basis of viva voce test only.
Pursuant to the selection made by the Commission for the 17 advertised posts, out of which 9 were open category posts, recommendation for appointment have been made for 13 candidates on the basis of merit list prepared by the Commission. However, no candidate has been recommended to be appointed in the discipline of Computer Science and Engineering, where the writ petitioner was the lone candidate.
2. It has been contended by the writ petitioner that he has all the requisite qualifications for being considered and appointed to the post of Assistant Professor in the discipline of Computer Science and Engineering and no reason can be discernible as to why his name has not been recommended by the Commission for appointment. Accordingly, discrimination has been alleged in the selection process. The writ petitioner further contends that selection made solely on the basis of interview is contrary to the law laid down by the Apex Court and accordingly, the selection process is vitiated as it has affected the purity of the selection process. The writ petitioner has also challenged the recommendation made in favour of candidates in different disciplines, who have been arrayed as respondents Nos. 6 to 18 in the present proceeding and submitted that the selection having been made without consideration of disciplinewise reservation, the entire selection process is vitiated and a direction be issued for fresh advertisement and selection. On the basis of the said contention, the writ petitioner prays for a direction for reservation of posts of Assistant Professor for SC/ST categories on a disciplinewise basis and not with reference to the total number of posts of Assistant Professor and has sought a further direction for treating the lone post in the discipline of Computer Science and Engineering as an unreserved post. The petitioner is also seeking cancellation of the selection process and also has sought cancellation of the appointments granted to respondent Nos. 6 to 18 in pursuant to the advertisement dated 1.3.2004.
3. Mr. K.N. Bhattacharjee and Mr. S.M. Chakraborty, the learned senior counsels representing the writ petitioner in course of their arguments have contended that since the petitioner has a degree of Master of Electronics and Telecommunication Engineering from Yadavpur University, he should have been considered eligible for the post of Assistant Professor in the discipline of Electrical Engineering as Electronics and Telecommunication Engineering degree has been prescribed in the advertisement as a qualifying degree in the discipline of Electrical Engineering. However, this court is not inclined to take note of the said contention in the present proceeding inasmuch as in the prayer made, the writ petitioner has not sought any relief against non-consideration of his candidature in the discipline of Electrical Engineering, by the Commission.
The main plea raised by the learned Counsels for the petitioner is with regard to the mode and manner of determining which posts would be open and which would be reserved category. Although in the advertisement for the 17 posts, 8 are earmarked for reserved category candidates and remaining 9 posts are for general category candidates, no indication has been given in the advertisement to inform about the posts or the subject which would be reserved and posts in which discipline would be considered to be of open category. Accordingly, strenuous arguments have been advanced to show that the non-recommendation of the writ petitioner despite being the only candidate in the discipline of Computer Science and Engineering by treating the said post as a reserved category post is impermissible in law. It has also been contended that awarding of marks and preparation of common merit list (for candidates in different disciplines) is absolutely illegal and comparative merit of candidates of different disciplines cannot be decided with reference to the marks obtained by the candidates in the selection held for separate and distinct disciplines.
The learned Counsels further submit that persons in merit position at serial Nos. 7, 8 and 9 belonging to the unreserved category, have not been recommended by the Commission for appointment and accordingly, submitted that the decision for keeping a particular post as reserved or unreserved, has not been made by the Commission with reference to the marks obtained by the eligible candidates, as has been contended by the Commission.
4. Appearing for the Commission, the learned Counsel Mr. P. Dutta has submitted before the court that the requisition for appointment to the 17 posts has been made by the Government to the Commission by simply indicating that 17 posts of Assistant Professors in different disciplines are to be recruited with the information that out of these 17 posts, 9 shall be considered as unreserved and 8 posts are to be considered as reserved category posts, meant for SC and ST candidates respectively. Since no disciplinewise reservation was indicated, the Commission had to evolve its own norm to determine in which discipline and how many posts are to be reserved and which posts to be kept as unreserved.
Accordingly, the Commission had taken a decision on the said aspect on the basis of the respective marks obtained by the individual candidates in the selection process conducted by the Commission. The Commission's counsel has produced a chart indicating the common merit list of the qualified candidates for the post of Assistant Professors and has indicated that for the 17 posts advertised, only 19 candidates applied and accordingly, the Commission proceeded to make a selection on the basis of viva voce test only. Further contention made by the learned Counsel for the Commission is that the Government have not prescribed the syllabus for the individual disciplines and, thus, it was not possible for the Commission to conduct written examination and in any case, written examination would not be justified considering the very limited number of candidates, who had applied in response to the advertisement. Mr. Dutta further submits that only 3 candidates belonging to SC category and one candidate belonging to the ST category had applied in response to the aforesaid advertisement and accordingly, for the 8 reserved category posts, only 4 candidates were available for consideration in the selection process.
As regards rejection of the candidature of the petitioner for the post of Assistant Professor, Electrical Engineering discipline, attention of the court was drawn to paragraph 8 of the counter-affidavit filed on behalf of the Commission. It was averred that the application of the writ petitioner for the post of Electrical Engineering discipline was rejected by the Commission as the petitioner had no basic degree in the appropriate branch of Engineering and was accordingly not found eligible as per AICTE norms.
As regards reservation in the cadre of Assistant Professor, the learned Counsel for the Commission submitted that the SC, ST and OBC Welfare Department, Government of Tripura had examined the 100-point roster maintained in the Tripura Engineering College and on the basis of such examination 8 of the 17 posts were kept apart for appointment by reserved category candidates. It was further contended that the Commission duly followed the 100-point roster as was verified by the SC, ST and OBC Welfare Department and that candidates were selected on the basis of their over all merit position and a common merit list was prepared.
It was further contended by Mr. Dutta that the petitioner's over all merit position was below the unreserved candidates, who got selected for 9 numbers of unreserved posts in different branches of Engineering and as per the merit list prepared selections could be made only against 9 posts meant for unreserved category, 3 posts meant for SC category and one post meant for ST category and accordingly, recommendation was made for appointment to 13 persons strictly in order of merit, deviation being made only for candidates belonging to the reserved category, who might have been picked up from a lower position in the common merit list. Accordingly, it was submitted that the remaining four posts for which recommendation had not been made are to be treated as vacancies for ST candidates only since only one candidate was considered eligible from ST category and was recommended for appointment whereas there were no candidates found suitable for the remaining four posts for the ST category candidates.
The rejection of the candidature of the writ petitioner was attributed to the fact that he did not get his place in merit list within the first nine positions for the 9 posts meant for unreserved category as the determination of which posts to be treated as reserved for unreserved appeared to have been decided by the Commission as per the respective merit of the candidates, determined by the Commission as per marks obtained in the selection process.
On a specific query made to the learned Counsel for the Commission, Mr. Dutta affirmed that neither at the stage of advertisement nor at the stage of selection, information as to posts in which discipline would be reserved or unreserved was known or determined and only after final marks were tabulated, the said determination has been made by the Commission.
Mr. Dutta has also asked for rejection of the writ petition on the ground that the petitioner having appeared in the selection process is estopped from challenging the selection after not getting recommended by the Commission for appointment.
5. Representing the private respondent Nos. 6 to 18, who have been recommended, Mr. S. Talapatra, the learned senior counsel has submitted that in terms of the Assistant Professor, Tripura Engineering College Recruitment Rules, 2003 ('Rule'), notified on 28.11.2003 by the Government, cadre of Assistant Professor is mentioned as a single cadre without any differentiation made with reference to the discipline of a particular Assistant Professor. Therefore, reservation criteria has to be applied with reference to the entire cadre strength notified under the aforesaid Recruitment Rules and just because there is a lone post in a particular discipline, the said lone post cannot be kept out of the criteria of reservation. The learned Counsel has drawn attention of this court to the decision dated 9.4.2001 in Renu Kumari v. The State of Tripura and Ors. C.R. 540 of 1997 where also the issue of reservation to the single post of Assistant Teacher in the subject of History was considered by this court and on the basis of the said decision, it has been submitted that the reservation in a particular cadre cannot be with reference to the discipline in which a teacher may teach, but has to be with reference to the entire cadre strength, irrespective of the discipline of an individual candidate. The submission is, thus, advanced that the principle of no reservation for single vacancy of Asstt. Professor in a particular discipline is inapplicable in the present case.
The learned Counsel further submits that the writ petitioner being a candidate for the post of Assistant Professor in the discipline of Computer and Electrical Engineering can have no grievance with reference to the selection made of respondent Nos. 6 to 18, who have been recommended for appointment in other disciplines and accordingly, submitted that the private respondents have been unnecessarily dragged into the present litigation.
The learned Counsel has further submitted that in the absence of any other guideline, the reservation of posts decided upon by the Commission with reference to the merit position and marks obtained by the individual candidate is a logical one and no interference is called for by this court. The learned Counsel has further submitted that if one has to go by the issue of non-applying the reservation roster in case of lone post in a particular discipline, the entire 100-point roster system would be put to jeopardy and there could be a totally unworkable situation, in applying the 100-point roster in reference to a cadre of posts, particularly in the teaching line, where different disciplines/ subjects are taught by people belonging to a single cadre.
6. In course of the hearing, the proceeding dated 30.3.2005 of the Commission has been made available for this court's perusal. It has been submitted by producing the aforesaid minutes that the reasoning for decision of the Commission to treat a particular post as reserved or unreserved can be inferred from the said minutes.
7. A careful consideration of the said minutes of the Commission dated 30.3.2005 does not reveal the reason for the Commission to treat posts as reserved or unreserved with reference to the marks obtained in the selection process by the candidates. It is possible that the Commission carried out the exercise with reference to the marks obtained in the selection process, but at least the minute dated 30.3.2005 of the Commission does not disclose the said reason. In any case, it is apparent that the candidates at the time of advertisement or at the time of application or even during the time of selection were not aware as to which post in which discipline will be considered as reserved or not reserved. Not to talk of the candidates, even the Commission took the decision to treat a particular post as reserved or unreserved, only after the selection process was over as they have purportedly based their decision on the basis of marks obtained by the individual candidates in the selection process and after determination of the respective merit position of the candidates.
8. In matters of public appointment to ensure fairness in the selection process, it has to be ensured that the candidates are considered in a fair and transparent manner. In the instant case, the candidates including the writ petitioner were unaware and were not informed about which amongst the advertised posts would be considered as reserved post. The writ petitioner was the lone candidate in the discipline of Computer and Electrical Engineering and if it was known that the post in his discipline would be a reserved post, he naturally would not have been considered eligible for offering candidature for the post of Assistant Professor in the discipline of Computer and Electrical Engineering.
In the instant case, the writ petitioner although was not considered eligible in the discipline of Electrical Engineering, was considered eligible in the discipline of Computer and Electrical Engineering and was permitted to participate in the selection process. If the said post was a reserved post, naturally the eligibility of the petitioner to participate in the selection process would have been absent. Having, thus, permitted the petitioner to participate in the selection process where he was the lone candidate in his chosen discipline, the Commission would not be fair to deny appointment to the petitioner after the selection is made on the ground that the said post is a reserved category post, by basing their decision with reference to the common merit list prepared by the Commission. Thus, denial of appointment to the petitioner by treating the post applied for by him as a reserved category post, for which he was considered eligible and was permitted to participate in the selection process, is not fair and the said denial is liable to be interfered with by this court.
As regards the submission made by the learned Counsel appearing for the respondent Nos. 6 to 18, about the writ petitioner not being entitled to challenge the selection of those candidates, it has to be taken note again that normally a writ petitioner being a candidate of his chosen discipline would be disentitled to challenge selection of candidates in discipline where the petitioner does not have the qualification to apply and is ineligible to be considered for appointment. But in the instant case, the recommendation of the respondent Nos. 6 to 18 if allowed to go unchallenged by the writ petitioner, it would mean that the 4 posts, which have been kept vacant without any one being appointed are to be treated as posts meant for ST category candidates only and no relief can be granted to the petitioner. As this court is of the opinion that the reservation of posts in various disciplines have been made by the Commission only after the selection process was over, the recommendation for appointment of the respondent Nos. 6 to 18 on the basis of such selection, has to be interfered with as the said procedure lacks transparency and can be said to be unfair to candidates who participated in the selection process.
9. On the plea taken by the respondents that the writ petitioner having participated in the selection process cannot be permitted to challenge the selection process, this court is of the opinion that the said contention is not acceptable in the present case. The reason for this court to reject the said contention stems from the fact that the petitioner was not made aware at the time of advertisement or when called for participation in the selection process as well as at the time when the selection was made, that the post of Assistant Professor in the discipline of Computer Science and Engineering would be reserved category post. As the said decision to consider the post as a reserved category post was taken by the Commission only after the selection was already made and merit position determined, the writ petitioner could not have any cause of action to challenge the said decision before selection as the decision was yet to be taken in that regard. Accordingly, this court holds that the writ petitioner is entitled to maintain the present challenge against the selection process despite participating in the selection process.
10. Considered in light of the aforesaid discussion, this court is of the opinion that the selection process conducted by the Commission in pursuant to advertisement No. 2/2004 dated 1.3.2004 is not fair and the same is vitiated. The government as well as the Commission ought to have notified which of the advertised posts would be considered as open category posts and which of the posts would be considered as reserved category posts and should have conducted the selection only after making known to all concerned, the position as aforesaid. The failure to notify the same and taking a decision on reservation of specific posts only after the selection was complete have resulted in adoption of a procedure, which is not in consonance with the principle of fairness and appears to be discriminatory.
11. Accordingly, this writ petition is allowed. The selection of the respondent Nos. 6 to 18 and their appointment are held to be bad in law. The respondents are directed to make the selection only after carrying out an exercise for determining which and how many of the advertised posts would be reserved category posts. It is made clear that all the posts in the cadre of Assistant Professors are to be taken together for determination of roster fixation as it is a case where 17 posts in the cadre of Assistant Professor as per Rules are available for appointment. Only after such determination and notification of the same, a fresh selection process may be carried out for appointment to the 17 posts of Assistant Professors in the Tripura Engineering College. In the facts as above, parties are to bear their own costs.