Tripura High Court
Sri Pankaj Bhowmik vs The State Of Tripura on 19 December, 2022
Author: Arindam Lodh
Bench: Arindam Lodh, S.G.Chattopadhyay
1
HIGH COURT OF TRIPURA
AGARTALA
WA 458 OF 2020
1. Sri Pankaj Bhowmik,
Son of Sri Dinesh Bhowmik, resident of village & P.O. South
Krishnanagar, Joypur, P.S.Belonia, District-South Tripura,
Pin-799156.
2. Smt. Saswati Nandi Dey,
Daughter of Sri Ratan Chandra Nandi, wife of Sri Nitya Ranjan Dey,
Resident of village-Ramthakurpara, Belonia, P.S. Belonia,
District-South Tripura.
--- Appellants.
Versus
1. The State of Tripura, represented by the Secretary,
Department of Health & Family Welfare, Government of Tripura,
Having his office at Pandit Nehru Complex, Gorkhabasti, PO-Kujaban,
PS-New Capital Complex, District-West Tripura.
2. The Director of Health Services, Directorate of Health Services,
Government of Tripura, having his office at Pandit Nehru Complex,
Gorkhabasti, PO-Kunjaban, PS-New Capital Complex, District-West
Tripura.
3. Sri Bishnu Debnath, son of Narayan Debnath, resident of village-
Kalachara, P.O. Bhuratali, P. S. Manu Bazar, Sabroom, District-South
Tripura, Pin-799143.
4. Sri Raju Danda, son of Amarendra Danda, resident of village-South
Sonaichari, P.S. Belonia, District-South Tripura, Pin-799155.
5. Sri Biswajit Sen, son of Manik Sen, resident of village-Debdaru,
P.O. Debdaru, District-South Tripura, Pin-799141.
6. Sri Sanjib Banik, son of Late Hrishikesh Banik, resident of village-
Rabindranagar, P.O. Kanchanpur, P.S. Kanchanpur, District-North
Tripura, Pin-799270.
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7. Sri Chinmoy Debnath, son of Ratan Debnath, resident of village-
Mohanpur, P.O. Majlishpur, P.S. Ranirbazar, District-West Tripura,
Pin-799035.
8.Sri Bhaskar Purakayastha, son of Bhabatosh Purakayastha, resident of
village & P.O. Jogendranagar, Near Vidyasagar Girls School, P.S. East
Agartala, District-West Tripura, Pin-799010.
9.Sri Kajal Paul, son of Badal Paul, resident of village & P.O.
Lembucharra, P.S. Kamalpur, District-Dhalai Tripura, Pin-799287.
10.Sri Protim Kumar Sinha, son of Krishna Kumar Sinha, resident of
village-West Kanchanbari, P.O. & P.S. Kanchanbari,
District-Unokoti Tripura, Pin-799228.
---Respondents.
WA 460 OF 2020
1. Sri Rajib Roy, son of Sri Priyalal Roy, resident of village-Santirbazar, P.O. & P.S. Santirbazar, District-South Tripura, Pin-799144.
2. Sri Khokan Das, son of Late Tarani Das, resident of village-Sapmara, P.O. Ramnagar, P.S. Belonia, District-South Tripura.
--- Appellants.
Versus
1. The State of Tripura, represented by the Secretary, Department of Health & Family Welfare, Government of Tripura, Having his office at Pandit Nehru Complex, Gorkhabasti, PO-Kujaban, PS-New Capital Complex, District-West Tripura.
2. The Director of Health Services, Directorate of Health Services, Government of Tripura, having his office at Pandit Nehru Complex, Gorkhabasti, PO-Kunjaban, PS-New Capital Complex, District-West Tripura.
3. Sri Milan Sukla Das, son of Sri Asit Mohan Sukla Das, resident of village-East Bagafa, Santirbazar, District-South Tripura, Pin-799144. 3
4. Sri Sujit Das, son of Sri Subal Das, resident of village-East Bagafa, Santirbazar, District-South Tripura, Pin-799144.
5. Sri Dhiman Das, son of Sri Dhirendra Chandra Das, resident of village- Kalitilla, P.O. & P.S. Teliamura, District-Khowai Tripura, Pin-799205.
6. Sri Tanup Sukla Das, son of Sri Babul Sukladas, resident of village & P.O. Maiganga, P.S. Teliamura, District-Khowai Tripura, Pin-799205.
7. Sri Bishnu Debnath, son of Narayan Debnath, resident of village- Kalachara, P.O. Bhuratali, P.S. Manu Bazar, Sabroom, District-South Tripura, Pin-799143.
8. Sri Raju Danda, son of Amarendra Danda, resident of village-South Sonaichari, P.S. Belonia, District-South Tripura, Pin-799155.
9.Sri Biswajit Sen, son of Manik Sen, resident of village-Debdaru, P.O. Debdaru, Disrtrict-South Tripura, Pin-799141.
10. Sri Sanjib Banik, son of Late Hrishikesh Banik, resident of village- Rabindranagar, P.O. Kanchanpur,P.S. Kanchanpur, District-North Tripura, Pin-799270.
11. Sri Chinmoy Denmath, son of Ratan Debnath, resident of village- Mohanpur, P.O. Majlishpur, P.S. Ranirbazar, District-West Tripura, Pin-799035.
12. Sri Bhaskar Purakayastha, son of Bhabatosh Purakayastha, resident of village & P.O. Jogendranagar, Near Vidyasagar Girls School, P.S. East Agartala, District-West Tripura, Pin-799010.
13. Sri Kajal Paul, son of Badal Paul, resident of village & P.O. Lembucharra, P.S. Kamalpur, District-Dhalai Tripura, Pin-799287.
14.Sri Protim Kumar Sinha, son of Krishna Kumar Sinha, resident of village-West Kanchanbari, P.O. & P.S. Kanchanbari, District-Unokoti Tripura, Pin-799228.
---Respondents.
4WP(C) 736 OF 2022 Dipankar Saha Roy, s/o Late Dipak Ranjan Saha Roy, Village-Subhashnagar, East Pratapgarh, Jagatpalli Road, Near Manasabari, Agartala, West Tripura, Age-31 years.
--- Petitioner.
Versus
1. The State of Tripura, to be represented by the Principal Secretary/Commissioner, Department of Secondary Education, Govt. of Tripura, New Secretariat Complex, Khejurbagan, P.S. New Capital Complex, Agartala, District-West Tripura, PIN-799010.
2. The Secretary, Dept. of GA(AR), Government of Tripura, New Secretariat Complex, Khejurbagan, P.S. New Capital Complex, Agartala, District-West Tripura, PIN-799010.
3. The Director, Department of Secondary Education, Govt. of Tripura, Siksha Sadan, Office Lane, Agartala, West Tripura, PIN-799001.
4. The Director, Department of Elementary Education, Govt. of Tripura, Siksha Sadan, Office Lane, Agartala, West Tripura, PIN-799001.
5. The Member Secretary, Teacher's Recruitment Board, Tripura, O/o the Director of School Education, Govt. of Tripura.
---Respondents.
In both the Writ Appeals For the Appellant(s) : Mr. Somik Deb, Sr. Advocate.
Mr. S. Majumder, Advocate.
For the Respondent(s) : Mr. D. Bhattacharya, G.A. Mr. P. Saha, Advocate.
In the Writ Petition For the Petitioner(s) : Mr. P. Roy Barman, Sr. Advocate.
Mr. S. Bhattacharjee, Advocate.
For the Respondent(s) : Mr. M. Debbarma, Addl. G.A. Mr. D. Sarkar, Advocate.
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Date of hearing : 23.09.2022
Date of delivery of
Judgment and order : 19.12.2022
Whether fit for reporting : Yes
BEFORE
HON'BLE MR JUSTICE ARINDAM LODH
HON'BLE MR JUSTICE S.G.CHATTOPADHYAY
Judgment & Order
(Arindam Lodh, J)
The above two intra-court appeals along with the above writ petition are combined together for disposal by this common judgment on consent by learned counsels appearing on behalf of the parties to the lis since identical questions are raised in both the appeals and the writ petition.
2. Admittedly, the respondent no.2, i.e. the Director of Health Services, Government of Tripura issued a notification dated 30.10.2013 for holding walk-in-interview for filling up of various posts under the Health and Family Welfare Department, Government of Tripura. Serial No.5 of the notification is concerned with the vacancies for the post of Pharmacist (Allopathy). There were 73 posts, out of which, 7 posts were reserved for SC category candidates, 53 posts were reserved for ST category candidates and 13 posts were reserved for UR category 6 candidates. That apart, the appellants of both the appeals (here-in-after referred to as the "petitioners") had challenged the Revised Employment Policy, 2012 of the Government being arbitrary and illegal in the writ petitions with a prayer to set aside the selection of private respondents. On careful reading of the writ petitions, counter affidavits and the impugned judgment and order dated 15.09.2020, it would reveal that the petitioners primarily had raised twin constitutional issues, viz. (1) reservation in excess of ceiling limit of 50% [60 out of 73 posts] and (2) constitutional validity of Revised Employment Policy, 2012. Learned Single Judge had dismissed the writ petitions on the ground of estoppel. Learned Single Judge held that the petitioners knowing-fully well the number of posts, notified for reserved category candidates, had participated in the selection process and as such, being unsuccessful they could not challenge the integrity of the selection process and the selection of the non-official respondents. Reliance being placed on the following three decisions of the apex court, which are as under:
(i) Madanlal & Ors. Vrs. State of J & K & Ors.[ (1995) 3 SCC 486];
(ii) (ii)Manish Kumar Shahi Vrs. State of Bihar [(2010) 12 SCC 576]; and
(iii) (iii).Ramesh Chandra Shah & Ors. Vrs. Anil Joshi & Ors. [(2013) 11 SCC 309] 7
3. As regards the writ petition bearing No. WP(C) 736 of 2022, the petitioner has prayed for quashing & cancelling the notification dated 15.07.2022, issued by the Teachers Recruitment Board, Tripura (for short, TRBT) with a direction upon the respondents to issue fresh notification for filling up 230 posts of Graduate Teachers (Class-IX-X) through "Selection Test for Graduate Teacher (STGT)-2022". The main grievance of the petitioner is the recruitment process for filling up 230 numbers of posts of Post Graduate Teachers (PGT). Particularly, out of 230 posts, 201 nos. of posts have been kept reserved for Scheduled Castes and Scheduled Tribes which apparently is in excess of 50%.
4. In both the writ appeals, we heard Mr. Somik Deb, learned senior counsel assisted by Mr. S. Majumder, learned counsel appearing for the petitioners and Mr. D. Bhattacharya, learned G.A. assisted by Mr. P. Saha, learned counsel appearing for the State-respondents.
5. In WP(C) No.736 of 2022, we also heard Mr. P. Roy Barman, learned senior counsel assisted by Mr. S. Bhattacharjee, learned counsel appearing for the petitioner as well as Mr. M. Debbarma, learned Addl. G.A. along with Mr. D.Sarkar, learned counsel appearing for the State respondents.
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6. Mr. Deb, learned senior counsel questioned the distribution of marks, which according to him, was not in tandem with the notified employment policy of the Government. To deal with this issue, we find that the petitioners failed to allege any malafide or bias against the members of the selection committee. More so, the members of the selection committee have not been impleaded in the writ petitions. In view of this, according to us, this challenge as regards the distribution of marks is bereft of merit and thus repelled.
7. Mr. Deb, learned senior counsel had mainly focused his challenge against the reservation of posts of Pharmacist (Allopathy) on available vacancies. Learned senior counsel for the petitioners strenuously argued that under no circumstance Government cannot breach the thumb rule of ceiling limit of 50% for reserved category candidates in a recruitment year in view of repeated dictums given by the Hon'ble Supreme Court on this issue. Mr. Deb, learned senior counsel in support of his submission, has placed reliance on the following case laws:
(i) R.K. Sabharwal & Ors. Vrs. State of Punjab & Ors. [(1995) 2 SCC 745];
(ii) Indra Sawhney & Ors. Vrs. Union of India & Ors. [ 1992 Supp(3) SCC 217];
(iii) M. Nagaraj & Ors. Vrs. Union of India & Ors. [(2006) 8 SCC 212];
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(iv) Tripurari Sharan & Anr. Vrs. Ranjit Kumar Yadav & Ors.
[(2018) 2 SCC 656];and
(v) Dr. Jaishri Laxmanrao Patil Vrs. Chief Ministers & Ors.
[(2021) 8 SCC 1].
8. On the other hand, learned G.A. appearing on behalf of the State-respondents contended that the State had undertaken the process of selection at different points of time and also undertook the process of filling up those vacancies in the posts of Pharmacist (Allo) at different points of time, but, required number of reserved category candidates were not available during those recruitment years. Taking into account the submission of learned G.A., this court had sought for clarifications from the State-respondents on the following questions:
I. What was the first recruitment year for filling up the posts of Pharmacists(Allo) and number of posts advertised during the first recruitment process?
II. After the first recruitment process, how many new posts
of Pharmacists(Allo) were created till the last
Advertisement which has been challenged in this writ petition?
III. For how many recruitment years, 60 (sixty) posts of Pharmacists (Allo) identified by the State-respondents, in reserved categories, are being carried forward?
9. By way of filing an additional affidavit, the State-respondents had dealt with all the above questions. After first recruitment, many posts 10 of Pharmacist (Allopathy) were created under different notifications which are annexed with the said additional affidavit. In reply to question no.III, quoted here-in-above, the State-respondents have stated thus:
"In response to the above question it is humbly stated that from the recruitment year 2011, 60 posts of Pharmacist identified in reserved categories are being carry forwarded."
10. Clarifying the above reply, learned G.A. iterated that required number of candidates under reserved categories were not available in the earlier recruitment years undertaken by the State-respondents at different times till the recruitment year,2011 and ultimately from the recruitment year 2011, 60 posts of Pharmacist (Allopathy) were identified by way of applying 'carry forward' rule to fill up the backlog vacancies in the succeeding years of recruitment for the posts of Pharmacist (Allopathy). Learned G.A. further contended that to identify the above 60 nos. of posts, the State-respondents strictly maintained 100 point roster as contemplated under the Tripura Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in services and Posts) Act, 1991 [for short, the Act, 1991]. Learned G.A. strenuously argued that the State-respondents did not commit any illegality in carrying forward the backlog vacancies for filling up the vacant posts as contemplated under Clause (c) of sub-rule 8 of Rule 11 8 of The Tripura Scheduled Castes & Scheduled Tribes Reservation Rules,1992 as amended up to 3rd Amendment [here-in-after referred to as the Rules, 1992"].
11. In WP(C) No.736 of 2022, Mr. Debbarma, learned Addl. G.A. appearing on behalf of the respondents in consonance with the counter affidavit has submitted that as per ruling of the Hon'ble Supreme Court in the case of R.K.Sabharwal (supra), some modification has been made in the Tripura Scheduled Castes and Scheduled Tribes Reservation Act,1991 vide notification dated 10.03.2005, and post based roster has been introduced in place of vacancy based roster in the State of Tripura. Accordingly, the respondents have rationalized 230 posts of Graduate Teachers (as advised by the TRBT) in accordance with the prevailing law and nothing has been done beyond the prescription of the Act,1991 and the Rules thereof.
Re-iterating the same analogy, Mr. Debbarma, learned Addl. G.A. appearing on behalf of the respondents in WP(C) 736 of 2022 submitted that 201 numbers of posts out of total 230 posts advertised for recruitment of Graduate Teachers have been kept reserved for Scheduled Castes and Scheduled Tribes candidates to fill up the backlog reserved 12 vacancies by applying the carry forward rule which could not be filled up in the previous many years due to non availability of candidates.
12. We have given our thoughtful considerations to the rival submissions advanced by the learned counsels appearing on behalf of the contesting parties. From the rival submissions one aspect is very clear that numbers of recruitment processes were undertaken by the State- respondents to fill up the posts of Pharmacist (Allopathy) for many recruitment years after the initial, i.e. first recruitment, but, the reserved vacant posts despite being carried forward could not be filled up due to non-availability of candidates belonging to reserved category even after the enactment of the Act, 1991 and the Rules,1992. Such unfilled vacancies were treated as "backlog vacancies" and were carried forward in subsequent recruitment years.
13. The concept of reservation of appointment or posts in favour of any backward class or citizens, which, in the opinion of the State has not adequately represented in the services under the State is itself found in our Constitution itself as enshrined in Clause (4) of Article 16 of the Constitution of India. Clause (4) of Article 16 of the Constitution reads as under:
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"(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State."
14. In view of the above Clause (4) of Article 16 of the Constitution of India and having found the inadequacy of representation of backward classes in the services under the State of Tripura, the State Legislature had enacted the Act, 1991. Thereafter, in exercise of the powers conferred by Section 12 of the said Act, 1991, the Rules,1992 was introduced. At its very inception, provision of reservation was made under Rule 8 of Rules, 1992 in the matter of direct recruitment and departmental promotion. Relevant extracts of Rule 8 may be reproduced here-in-below:
8.Direct Recruitment through the Commission/Selection Committee/ Selection Board/Departmental Promotion Committee etc. (1) While making a request to the Commission or to the Selection Committee/Selection Board for recommending candidates for direct recruitment the appointing authority shall also furnish information about the reservation in favour of candidates belonging to the Scheduled Castes and the Scheduled Tribes. The information should be based on the inspection report of 100 point Roster showing position up to the year in which recruitment is proposed in respect of the concerned post or service as may be furnished jointly by the Director of Welfare for Scheduled Castes and the Director of Welfare for Scheduled Tribes or their representatives......
(2) *** *** *** (3) Interview of the candidates shall be arranged separately for Scheduled Castes, Scheduled Tribes and others.
(4) *** *** ***
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(5) *** *** ***
(6) *** *** ***
(7) *** *** ***
8(a) (a) If it is found that the required number of Scheduled Castes candidates or Scheduled Tribe candidates for filling up reserved vacancies are not available the appointing authority may initiate a proposal for filling up the reserved vacancies by exchange method, i.e. for filling up the vacancies reserved for Scheduled Tribe candidates, by available Scheduled Caste candidates or for filling up the vacancies reserved for Scheduled Caste candidate, by available Scheduled Tribe candidates, he shall send the proposal to the Scheduled Castes Welfare Department and to Tribal Welfare Department for their concurrence. When concurrence is received the appointing authority will make appointment subject to the condition that the vacancies will be carried forward.
(b) If candidate belonging to Scheduled Castes or Scheduled Tribes is not available by exchange method, then the vacancies may be filled up by deputation/transfer according to concerned Recruitment Rules.
(c) If the required number of candidates are not available even after further attempt within a recruitment year the reserved vacancies shall be carried forward to the next recruitment year."
15. By the Constitution (Eighty-first Amendment) Act, 2000, Clause (4-B) was inserted in the Article 16 of the Constitution of India. The Clause (4-B) reads as under:
"(4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent reservation on total number of vacancies of that year."15
16. It is pertinent to mention the background in which Eighty-first Amendment Act was brought in and Clause (4-B) was introduced in the Constitution of India. In the case of Ram Chandra & Ors. Vrs. State of U.P. and Ors., reported in 2019 SCC OnLine All 4648, the High Court of Allahabad has observed thus:
" 27. The issue with regard to extent of reservation as per clause (4) of Article 16 of the Constitution of India was subject matter of several cases in different High Courts as well as before the Supreme Court of India. In the case of M.R. Balaji v. State of Mysore reported in AIR 1963 SC 649, it was held that extension of reservation in public service is a special provision and that should always be less than 50% of total vacancies. While doing so, it was also made clear that how much less than 50% would depend on relevant prevailing circumstances of each cases. Prior to that, in General Manager, Southern Railways v. Rangachari reported in AIR 1962 SC 36, it was held that reservation under Article 16 (4) of the Constitution of India cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other stakeholders.
A reasonable balance must be struck between the claims of Backward Classes and claims of other employees as well as the requirement of efficiency of administration.
28. .....Hon'ble Supreme Court in Indra Sawhney v. Union of India reported in 1992 Supp (3) SCC 217 : AIR 1993 SC 477 examined various issues relating to reservation, application of reservation to Other Backward Classes and the matters incidental thereto. An important issue before the Court was that "can the extent of reservation to posts in services under the State under Article 16 (4) of the Constitution of India or, if permitted under Articles 16 (1) and 16 (4) together, exceed 50% of posts in a cadre or service under the State or exceed 50% of appointment in a cadre or service in any particular year and can such extent of reservation be determined without determining the inadequacy of representation of each class in different categories and grades of service under the State," and on adjudication, the Apex Court held that the rule of 50% ceiling in grant of reservation laid down in M.R. Balaji v. State of Mysore (supra) was an appointment rule and not a mere rule of 16 prudence. It was further held that 50% rule should be applied to each year, otherwise it may happen that the open competition channel can be choked for some years and, in the meanwhile, the candidates/aspirants for unreserved vacancies may cross maximum age limit and also lose the eligibility required to hold the posts.
*** *** ***
30. Looking to the judgment given in the case of Indra Sawhney v. Union of India (supra), it became impossible for the Central Government as well as for various State Governments to satisfy the carry forwarded vacancies of earlier years, if the entire number of reserved vacancies was to go beyond 50% of the total vacancies to be filled in that specific year. In result, the several carry forwarded vacancies of earlier years which remained unfilled stood lapsed.
31. The Government of India considered this aspect of the matter on receiving several representations and decided to introduce the constitutional amendment, i.e., 81st Amendment Act, 2000. By this Amendment Act, clause (4-B) in Article 16 of the Constitution of India was inserted. By clause (4-B), "carry forward/unfilled vacancies of a year" are kept out and excluded from the overall ceiling limit of 50% of reservation. A fine segregation of backlog vacancies with the current vacancies is made to have special recruitment to fill up the unfilled vacancies relating to Scheduled Castes/Scheduled Tribes by holding special recruitment confining to these categories. For ready reference, it would also be appropriate to quote the statement of objects and reasons given to introduce 81st Amendment Act, 2000:--
"THE CONSTITUTION (EIGHTY-FIRST AMENDMENT) ACT, 2000, Assented on 9-6-2000 and came into force on 9-6-2000 Statement of Objects and Reasons, - Prior to 29-8-1997, the vacancies reserved for the Scheduled Castes and the Scheduled Tribes, which could not be filled up by direct recruitment on account of non-availability of the candidates belonging to the Scheduled Castes or the Scheduled Tribes, were treated as "Backlog Vacancies". These vacancies were treated as a distinct group and were excluded from the ceiling of fifty per cent reservation. The Supreme Court of India in its judgment in the Indra Sawhney v. Union of India held that the number of vacancies to be filled up on the basis of reservations in a year including carried forward reservations should in no case exceed the limit of fifty per cent. As total reservations in a year for the Scheduled Castes, the Scheduled Tribes and the other Backward Classes combined together had already reached forty-nine and a half per cent and the total number of vacancies to be filled up in a year could not exceed fifty per cent, it became difficult to fill the "Backlog Vacancies" and to hold Special Recruitment Drives. Therefore, to implement the 17 judgment of the Supreme Court, an Official Memorandum dated 29- 8-1997 was issued to provide that the fifty per cent limit shall apply to current as well as "Backlog Vacancies" and for discontinuation of the Special Recruitment Drive.
2. Due to the adverse effect of the aforesaid order dated 29-8- 1997, various organisations including the Members of Parliament represented to the central Government for protecting the interest of the Scheduled castes and the Scheduled Tribes. The Government, after considering various representations, reviewed the position and has decided to make amendment in the constitution so that the unfilled vacancies of a year, which are reserved for being filled up in that year in accordance with any provision for reservation made under Clause (4) or Clause (4A) of Article 16 of the Constitution, shall be considered as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent, reservation on total number of vacancies of that year. This amendment in the Constitution would enable the State to restore the position as was prevalent before 29-8-1997.
3. The Bill seeks to achieve the aforesaid object."
32. Clause (4-B) of Article 16 of the Constitution of India, in view of whatever stated above, is a device to lift the 50% cap on carry over/backlog vacancies while maintaining ceiling limit of 50% on current vacancies. So far as determination of current vacancies is concerned that is on basis of taking into consideration the existing and anticipating vacancies. However, the backlog/carry forwarded vacancies which remained unfilled is a part of vacancies of earlier years vacancies. This is a part of total vacancies determined but remained unfilled due to non-availability of the candidates belonging to Scheduled Castes/Scheduled Tribes categories."
17. In the case of M. Nagaraj (supra), the Hon'ble Supreme Court while upholding the constitutional validity of Eighty-first amendment inserting clause (4-B) in Article 16, clearly held that the amended provision [4-B) is an enabling provision. In the cases in hand, we are not concerned with Article 16 (4-A) which relates to reservation in 18 matters of promotion with consequential seniority, which was also held to be an enabling provision.
18. The Hon'ble Supreme Court in the case of R.K.Sabharwal (supra) made it clear that in the event of non-availability of a reserved candidate at the roster point, it would be open to the State Government to carry forward the unfilled reserved vacancies in a just and fair manner. Now, if we read this clarification together with Article 16(4-B) of the Constitution, invariably it can be held that Article 16 (4-B) enabled the State Government to legislate law and make provision as regards the filling up of "backlog vacancies" in any succeeding year or years by way of applying carry forward rule which are kept out and excluded from overall ceiling limit of 50% of reservation.
19. Under the second amendment Rules,2007 the State's law- makers only preferred to limit their exercise to the extent of the insertion of the words "vacant posts" in clause (c) of sub-rule 8 of Rule 8 of Rules,1992, which reads as under:
"(c) If the required number of candidates are not available even after further attempt within a recruitment year the reserved [vacant posts] shall be carried forward to the next recruitment year."19
20. The language of this provision, according to us, is very clear and unambiguous. The well-neigh principle is that Rule of "literal construction" is the safe rule and should be followed unless the language used is contradictory, ambiguous, or leads really to absurd results. Besides, legislation is always to be understood first in accordance with its plain meaning. A plain reading of sub-rule 8(c) of Rule 8 of amended Rules, 2007 makes it clear that despite Clause (4-B) of Article 16 of the Constitution of India, the State Government had consciously taken a decision that the unfilled vacancies if not filled up within a recruitment year, the reserved [vacant posts] shall be carried forward to the next recruitment year. In other words, the law-makers wanted to limit carry forward rule to fill up the reserved [vacant posts] i.e. backlog vacancies up to the next recruitment year only and not in any further subsequent/succeeding years. It is clarified that the expression "if the required vacancies of candidates are not available even after further attempt within a recruitment year" would mean and connote that the authorities concerned can exercise the process of recruitment indicating the unfilled backlog vacancies for a number of times within the same year i.e. initial/first recruitment year.
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21. On careful reading of sub-rule 8(c) of Rule 8 of the Rules, 1992 as amended in 2007, we are of the considered opinion that while Article 16 (4-B) had given wide discretion upon the State Government/Legislature for enacting any law to decide the number of year or years up to which unfilled vacancies will be carried forward, the State Government under Clause (c) of sub-rule (8) of Rule 8 of the Rules,1992 legislated that in case the required number of candidates are not available even after further attempt within a recruitment year, the reserved vacant posts shall be carried forward to the next recruitment year.
22. The Hon'ble Supreme Court in Dr. Jaishri Laxmanrao Patil (supra) it was held [per majority] while interpreting a newly inserted provision which was enacted to bring it in alignment with existing pari materia provisions, the Court should not be unmindful of the existing constitutional provisions. When constitutional amendments introduce new definition, judicial interpretation has leaned in favour of giving literal meaning to the terms used which had led to change. The Supreme Court on numerous occasions has given full literal effect to the terms of the amendment brought in by the legislature, after understanding the rationale for the change.
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23. By now, it is well-settled that when a power is given to do a certain thing in a certain way, the thing must be done in that way or not all [AIR 1936 PC 253(2)]. In the case of Ramchandra Keshab Adke Vrs. Govind Joti Chavare, reported in AIR 1975 SC 915, the apex court held that when a power is given to do certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. In the instant cases, the advertising department, i.e. the Director of Health Services, Govt. of Tripura, the respondent no.2 in both the appeals and the respondent no.5 in the writ petition, have no power to carry forward backlog vacancies years after years, which if allowed, will be in direct conflict with the provisions encrypted in the Rules, 1992. Such unauthorized act of the Director of Health Services, Government of Tripura in both the appeals and the Member Secretary, Teacher's Recruitment Board, Tripura, Office of the School Education, Govt. of Tripura, in the writ petition, had given undue advantage to the reserved category of candidates which offends the equality clause in the matter of appointment as enshrined under Article 16 of the Constitution of India. The action of the official respondents invites inequality amongst the equals. The official respondents ought to have taken into account that relevant provision under Clause (c) of sub-rule (8) of Rule 8 of the Rules, 1992 clearly provides carry forward rule to fill up 22 the backlog vacancies only limited up to the next recruitment year as stated above in para 20 of this judgment. Thus, by way of by-passing the mandatory provision of sub-rule(c) of sub-rule (8) of Rule 8 of SC & ST Rules, 1992, the official respondents have committed a vital mistake in overlooking statutory dictum as provided therein. The State-respondents ought not have violated the statutory provisions. It is well settled that there is no estoppel against law or statute. We have noticed, in the instant cases, statutory violation ought to have subsisting since inception, i.e., since the date of publication of the employment notification for filling up the vacancies in the posts of Pharmacist (Allopathy) under the Directorate of Health Services.
24. In our considered view, since the official respondents acted contrary to law and in contravention of the Rules,1992 (as amended in 2007), they had violated the statutory provisions, and in that case, the respondents are prohibited to take the plea of estoppels to defend such unlawful act. Clause(c) of sub-rule (8) of Rule 8 of the Rules,1992 is such provision which cannot be waived or dispensed with on the ground of estoppel and if such violation is permitted, then, it would ultimately tantamount to repeal the provision which is inserted in the statutory rule with a view to uphold constitutional ethos. Doctrine of estoppel is founded 23 on the principles of equity and the issues of constitutional validity cannot be thwarted, by applying the doctrine of estoppel. Bearing in mind the aforesaid principle, we are unable to agree with the decision of learned Single Judge that the challenge made by the petitioners suffers from the doctrine of estoppel.
25. In the above conspectus, the conclusion is inevitable that the official respondents have breached the mandatory provision embodied in Clause(c) of sub-rule (s) of Rule 8 of the Rules, 1992 (Second amendment,2007) in following the carry forward rule to fill up the unfilled vacancies in the posts of Pharmacist (Allopathy) from reserved category of candidates in succeeding recruitment years including the current recruitment under employment notification dated 30.10.2013, issued by the Director of Health Services and the notification dated 15.07.2022 issued by the respondent no.3 in the writ petition. It is clearly held under Clause(c) of sub-rule(8) of Rule 8 of SC & ST Rules, 1992 that unfilled reserved backlog vacancies shall be carried forward only after the first recruitment year in any posts and not in the succeeding years.
26. Under Clause(c) of sub-rule (8) of Rule 8 of the Rules, 1992 the State is barred to apply carry forward rule to clear backlog vacancies of reserved category candidates beyond next recruitment year. We make it 24 clear that "next recruitment year" means the year followed by the first recruitment process in a particular year. As for example, a department issues an employment notification in the year 2021 for filling up of 100 posts in a particular category. For this purpose, 50% have been kept reserved for reserved category candidates as per the State's roster. After completion of the said selection process, the department finds only 30 candidates eligible for filling up the said posts identified for reserved category candidates. Remaining 20 (twenty) unfilled posts, if kept vacant, these will be treated as "backlog vacancies". If the required numbers of candidates are not available, then, the authorities concerned may make further attempts to fill up the unfilled vacancies within the same year i.e. initial/first recruitment year. Now, suppose, in the year 2023, Govt. has created another 150 posts of the same category. Out of these 150 posts, 50% posts will be kept reserved for reserved category candidates and further, 20 unfilled vacancies of 2021 will be added to determine the total vacancies meant for reserved category candidates and it would be 75 +20 = 95 that is, 95 posts which will be kept reserved because it will be the next recruitment year i.e. 2nd recruitment year followed by the first recruitment year 2021. Again, suppose, out of 95 posts the department may find 80 candidates suitable for appointment, which means that 15 vacancies belonging to reserved category have not been filled up. 25 Thereafter, the department again has issued fresh employment notification in the year 2025 for filling up 50 vacancies of the same category of posts. The department as usual will notify 50% vacancies for candidates belonging to unreserved category. But, in that recruitment year, i.e.2025, if the department tries to fill up the backlog vacancies of 15 which could not be filled up in the year 2023, by way of following carry forward rule, then, it will violate the mandatory provision as contemplated in Clause (c) of sub-rule (8) of Rule 8 of the Rules, 1992 as amended by second amendment, 2007.
27. In the cases in hand, we find no inconsistency or irrationality to the legislation brought in by the State Government under sub-Rule 8(c) of Rule 8 of amended Rules, 2007. The State Government was well aware of the fact that the object and purpose of insertion of Article 16(4-B) by way of Eighty-first Amendment of the Constitution of India is to enable the State Governments to legislate its own law considering the socio- economic scenario of the State as well as overall efficiency in administration as enshrined in Article 335 of the Constitution of India.
28. In the opinion of this court, when the State law-makers had clear intention to apply carry forward rule for clearing the "backlog vacancies" up to the next recruitment year, that is, after the initial 26 recruitment year, the court has no jurisdiction to read and construe/interpret it otherwise which will definitely defeat the object and purpose of the legislation brought in by the State law-makers under Sub- Rule 8(c) of Rule 8 of amended Rules, 2007. We re-iterate that the State legislature has thought it fair and just to apply the carry forward rule only up to the next recruitment year and not years any further or subsequent years. (emphasis supplied)
29. It is evident from the counter affidavits and additional counter affidavits filed by the State-respondents as well as the submission of learned G.A. that 'backlog vacancies' to fill up the post of reserved category candidates are being carried forward for a number of recruitment years after introduction of SC & ST Act and the Rules,1992. According to us, it is inconsistent to and in contravention to Clause (c) of sub-rule 8 of Rule 8 of amended Rules, 2007. Therefore, this is a continuous breach of a statutory provision which escaped the notice of the executives who have the primary duty to strictly adhere to the legislative decision encrypted in the statute, and therefore, must be stopped here to prevent further breach of legislative intent and object of the legislatures to protect the interest of public in general for whose interest particular legislation was introduced. The State-respondents have committed a serious error in law to identify 27 and keep 60 seats for reserved category candidates out of total 73 posts for filling up the vacant posts of Pharmacist (Allopathy), which is the subject matter in both the appeals; so also the subject matter of the writ petition where out of 230 posts of Graduate Teachers, 201 numbers of posts were kept reserved for SC and ST candidates. We may in the context of the case, unhesitatingly hold that reservation in excess of 50% ceiling limit is inconsistent and contrary to law as contemplated under Sub-Rule 8(c) of Rule 8 of Rules, 1992.
30. This Court in WP(C) No. 736 of 2022, by way of interim order asked the respondents to continue the selection process, but, not to declare the results of the examination. As we have already held in the above writ appeals that ceiling limit of 50% cannot be breached in any manner whatsoever, in the succeeding recruitment years beyond the second year of recruitment followed by the first recruitment year. It is evident that so many recruitment processes for recruitment of Graduate Teachers in many subsequent recruitment years since the enactment of "Rules, 1992" have already been undertaken for filling up reserved vacant posts i.e. the backlog vacancies of Graduate Teachers by way of applying the carry forward rule, which exercise, according to us, were carried out in direct contravention to Clause (c) of sub-rule 8 of Rule 8 of the 28 Rules,1992. In our considered view, the mistakes already committed by the State executives in filling up the posts of Graduate Teachers in the State as aforestated is unrepairable; however, such illegalities committed by the respondents-authorities during the previous years cannot be permitted to perpetuate by continuous mistake.
31. Here, we shall be failing to our solemn duty if we do not stop the recurrence of such flouting of a statutory provision as enshrined in sub- rule 8(c) of Rule 8 of the Rules,1992. It is for this reason such illegal exercise or practice must be stopped here i.e. from the present recruitment year in question and for all times to come. Excessive reservation beyond ceiling limit of 50% rule, if not permitted or supported by any law or statute, is illegal, arbitrary and discriminatory.
32. It is not unknown to this court that there is dearth of competent and adequate Pharmacists (Allopathy) in the State of Tripura. If the posts are allowed to remain vacant for non-availability of eligible reserved category candidates for the years to come, then, the health services, which the Government is necessarily to provide to its people, will badly be affected.
Similarly, complaints against adequate numbers of teachers in the schools are a regular phenomenon in the State. So, if the vacancies in 29 the posts of teachers are not filled up, then, the education system of the State will also be adversely affected when right to education has been made a fundamental right. Absence of adequate numbers of teachers will frustrate the object the law-makers wanted to achieve through providing of qualitative education.
33. Before we conclude, we must say, that, it is settled proposition of law that the number of backlog reserved vacancies form a separate class and is treated as a distinct group and are excluded from the ceiling limit of 50% reservation. In the instant cases, these backlog reserved vacancies which are being carried forward in the recruitment year under notification dated 30.10.2013 in WA No. 458/2020 and WA No.460/2020, for filling up the posts of Pharmacist (Allopathy) and the notification dated 15.07.2022 in WP(C) No.736/2022, for filling up the posts of Graduate Teachers are illegally kept reserved in contravention to sub-rule 8(c) of Rule 8 of Rules, 1992. However, the mistake as discussed in detail in the preceding paragraphs has been committed by the official respondents in carrying forward the vacant reserved posts for years together including the notification dated 30.10.2013, for which, according to us, the appointments already made from this distinct group have not been disturbed by this court. More so, we are in agreement with Ld. Single Judge that no malpractice is found to be committed in the selection process 30 as alleged by the petitioners/appellants for filling up the posts of Pharmacist (Allopathy), and in this respect, the common judgment and order dated 15.09.2020 passed by the learned Single Judge in WP(C) No.134 of 2015 and WP(C) No.135 of 2015 is not interfered with.
34. For the reasons stated and discussed here-in-above, we pass the following directions in WA No. 458/2020 & in WA No.460/2020:-
(i) The action of the official respondents to reserve 60 posts out of 73 posts for filling up the posts of Pharmacist (Allopathy) in the employment notification dated 30.10.2013 is illegal, arbitrary and discriminatory and in contravention to Clause (c) of sub-rule(8) of Rule 8 of the Rules, 1992 being in excess of ceiling limit of 50% reservation.
(ii) There shall not be application of carry forward rule in the matter of appointment/filling up of the posts of Pharmacist (Allopathy) under the employment notification dated 30.10.2013.
(iii) The posts which are in excess of ceiling limit of 50% rule, shall be filled up by general category candidates, 31 if not already filled up by reserved category candidates, that is, from the candidates belonging to the distinct group. It is made clear that the appointments already made in the posts of Pharmacist (Allopathy) by applying the carry forward rule under notification dated 30.10.2013 shall not be disturbed. It is further made clear that if any vacancies under the same notification still exists and left vacant those shall be filled up by general category candidates according to their merits and in that case, the official respondents shall prepare and publish the merit list of general category candidates.
(iv) The official respondents shall not apply the carry forward rule in any of the future recruitment process for filling up the vacant posts of Pharmacist (Allopathy).
34.1 Directions in WP(C) 736 of 2022
(i) The employment notification dated 15.07.2022, issued by the Member Secretary, Teachers Recruitment Board, Tripura (TRBT), for filling up the posts of 32 'Graduate Teacher' for the Classes-IX-X, wherein, 201 posts have been kept reserved out of 230 posts, is also interfered with to the extent that the number of vacancies carried forward shall not be given effect to.
(ii) The selection of reserved category candidates must be limited to 50% for filling up the total number of posts of 'Graduate Teacher' under the notification dated 15.07.2022. The respondents shall prepare the select list following the said ceiling limit of 50% rule for reservation.
(iii) The official respondents shall not apply the carry forward rule in any of the future recruitment process for filling up the vacant posts of 'Graduate Teacher'.
35. In the light of the above observations and directions, the impugned common judgment and order, dated 15.09.2020, passed in WP(C) No. 134 of 2015 and WP(C) No. 135 of 2015 by learned Single Judge is modified to the extent as indicated above.
36. As a sequel, both the writ appeals, accordingly, stand disposed in the aforesaid terms, and the writ petition [W.P.(C) 736 OF 33 2022] filed by the petitioner, stands allowed and disposed to the extent as indicated above. In the above conspectus, the interim order dated 09.09.2022, passed in WP(C) No.736 of 2022, shall stand disposed.
JUDGE JUDGE sanjay