Tripura High Court
Shri Debashish Roy vs Tripura Public Service Commission (An ... on 3 April, 2018
Equivalent citations: AIRONLINE 2018 TRI 288
Author: S. Talapatra
Bench: S. Talapatra
Page 1 of 29
HIGH COURT OF TRIPURA
AGARTALA
WP(C) No. 496 of 2015
Shri Debashish Roy
son of late Swadesh Ranjan Roy, College Tilla, Adarsha
Palli, East of RTP Girls' School, P.O. Agartala College,
Tripura(W), Pin-799004
----Petitioner(s)
Versus
1. Tripura Public Service Commission (An autonomous
statutory body constituted for the purpose of selection
and recommendation to various posts as per requirement
by the Govt. of Tripura, having its office at Akhaura Road,
Agartala, West Tripura), represented by the Chairman,
Tripura Public Service Commission, Agartala, West Tripura
2. The Secretary, Tripura Public Service Commission,
Agartala, West Tripura
3. The State of Tripura, to be represented by the Director
of Higher Education, Government of Tripura, Agartala
4. The Under Secretary,
Department of Higher Education, Government of Tripura
5. Smt. MunMun Das Biswas, Assistant Professor,
d/o Ganesh Chandra Das Biswas, Institute of Advanced
Studies in Education, Kunjaban, Near Heritage Park,
Agartala, P.O. Kunjaban, Pin-799 006, District-West
Tripura
6. Smt. Banasree Chakraborti,
d/o Matilal Chakraborti, Assistant Professor, College of
Teacher Education, P.O. Pabiachhera, P.S. Kumarghat,
District-Unakoti Tripura, Pin-799 264
7. Sri Hillol Mukherjee,
s/o Sankari Prasad Mukherjee, Assistant Professor,
Institute of Advanced Studies in Education(IASE),
Kunjaban, Near Heritage Park, Agartala, P.O. Kunjaban,
Pin-799 006, District-West Tripura
8. Smt. Rituparna Chakraborty,
d/o Puranjan Prasad Chakraborty, Assistant Professor,
Institute of Advanced Studies in Education(IASE),
Kunjaban, Near Heritage Park, Agartala, P.O. Kunjaban,
Pin-799 006, District-West Tripura
9. Smt. Binapani Saha,
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d/o late Jogesh Chandra Saha, Assistant Professor,
Institute of Advanced Studies in Education(IASE),
Kunjaban, Near Heritage Park, Agartala, P.O. Kunjaban,
Pin-799 006, District-West Tripura
10. Sri Bishnupada Shome,
s/o Rakesh Ranjan Shome, Assistant Professor, College of
Teacher Education, P.O. Pabiachhera, P.S. Kumarghat,
District-Unakoti Tripura, Pin-799 264
11. Smt. Nandita Maunder,
d/o Phani Bhusan Majumder, Assistant Professor, Institute
of Advanced Studies in Education(IASE), Kunjaban, Near
Heritage Park, Agartala, P.O. Kunjaban, Pin-799 006,
District-West Tripura
12. Dr. Partha Sarathi Ghosh,
s/o Ratan Kumar Ghosh, Assistant Professor, Institute of
Advanced Studies in Education(IASE), Kunjaban, Near
Heritage Park, Agartala, P.O. Kunjaban, Pin-799 006,
District-West Tripura
13. Smt. Chandana Bhowmik,
d/o Kanti Bhusan Bhowmik, Assistant Professor, Institute
of Advanced Studies in Education(IASE), Kunjaban, Near
Heritage Park, Agartala, P.O. Kunjaban, Pin-799 006,
District-West Tripura
14. Sri Saikat Saha,
s/o late Pradip Chandra Saha, Assistant Professor, College
of Teacher Education, P.O. Pabiachhera, P.S. Kumarghat,
District-Unakoti Tripura, Pin-799 264
15. Smt. Bulti Debnath,
d/o Chitta Ranjan Debnath, Assistant Professor, Institute
of Advanced Studies in Education(IASE), Kunjaban, Near
Heritage Park, Agartala, P.O. Kunjaban, Pin-799006,
District-West Tripura
16. Smt. Pratima Das,
d/o Jagadish Chandra Das, Assistant Professor, College of
Teacher Education, P.O. Pabiachhera, P.S. Kumarghat,
District-Unakoti Tripura, Pin-799 264
17. Smt. Atoshi Chakma,
d/o late Kalpa Ranjan Chakma, Assistant Professor,
College of Teacher Education,P.O. Pabiachhera, P.S.
Kumarghat, District-Unakoti Tripura, Pin-799 264
18. Sri Uttam Kumar Das,
s/o Lal Mohan Das,Assistant Professor, College of Teacher
Education, P.O. Pabiachhera, P.S. Kumarghat, District-
Unakoti Tripura, Pin-799 264
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19. Smt. Jasmine Rupini,
d/o Chandroday Rupini, Assistant Professor, College of
Teacher Education, P.O. Pabiachhera, P.S. Kumarghat,
District-Unakoti Tripura, Pin-799 264
20. Sri Sudhir Chandra Das,
s/o Dhirendra Chandra Das, Assistant Professor, College
of Teacher Education, P.O. Pabiachhera, P.S. Kumarghat,
District-Unakoti Tripura, Pin-799 264
21. Sri Ajit Roga,
s/o Sachin Roga, Assistant Professor, College of Teacher
Education, P.O. Pabiachhera, P.S. Kumarghat, District-
Unakoti Tripura, Pin-799 264
22. Sri Sambhu Debbarma,
s/o Charan Krishna Debbarma, Assistant Professor,
College of Teacher Education, P.O. Pabiachhera, P.S.
Kumarghat, District-Unakoti Tripura, Pin-799 264
23. Smt. Dipti Debbarma,
d/o late Biralal Debbarma, Assistant Professor, Institute
of Advanced Studies in Education(IASE), Kunjaban, Near
Heritage Park, Agartala, P.O. Kunjaban, Pin-799 006,
District-West Tripura
24. Smt. Himabati Reang,
d/o Nagendra Reang, Assistant Professor, College of
Teacher Education, P.O. Pabiachhera, P.S. Kumarghat,
District-Unakoti Tripura, Pin-799 264
25. Sri Uttam Mitra,
s/o Haripada Mitra, Assistant Professor, College of
Teacher Education, P.O. Pabiachhera, P.S. Kumarghat,
District-Unakoti Tripura, Pin-799 264
----Respondent(s)
WP(C) No. 674 of 2015
Shri Chandan Kumar Paul, son of Sri Biswanath Paul, Gangail Road, South of Netaji School, P.O. Agartala, P.S. West Agartala, Tripura(W), Pin-799 001
----Petitioner(s) Versus
1. Tripura Public Service Commission(An autonomous statutory body constituted for the purpose of selection and recommendation to various posts as per requirement by the Govt. of Tripura, having its office at Akhaura Road, Page 4 of 29 Agartala, West Tripura), represented by the Chairman, Tripura Public Service Commission, Agartala, West Tripura
2. The Secretary, Tripura Public Service Commission, Agartala, West Tripura
3. The State of Tripura, to be represented by the Director of Higher Education, Government of Tripura, Agartala
4. The Under Secretary, Department of Higher Education, Government of Tripura
5. Smt. Himabati Reang, d/o Nagendra Reang, Assistant Professor, College of Teacher Education, P.O. Pabiachhera, P.S. Kumarghat, District-Unakoti Tripura, Pin-799 264
6. Sri Uttam Mitra, s/o Haripada Mitra, Assistant Professor, College of Teacher Education, P.O. Pabiachhera, P.S. Kumarghat, District-Unakoti Tripura, Pin-799 264
7. Smt. Banasree Chakraborti, d/o Matilal Chakraborti, Assistant Professor, College of Teacher Education, P.O. Pabiachhera, P.S. Kumarghat, District-Unakoti Tripura, Pin-799 264
8. Sri Hillol Mukherjee, s/o Sankari Prasad Mukherjee, Assistant Professor, Institute of Advanced Studies in Education (IASE) Kunjaban, Near Heritage Park, Agartala, P.O. Kunjaban, Pin-799 006, District-West Tripura
9. Smt. Rituparna Chakraborty, d/o Puranjan Prasad Chakraborty, Assistant Professor, Institute of Advanced Studies in Education(IASE), Kunjaban, Near Heritage Park, Agartala, P.O. Kunjaban, Pin-799 006, District-West Tripura
10. Smt. Binapani Saha, d/o late Jogesh Chandra Saha, Assistant Professor, Institute of Advanced Studies in Education(IASE), Kunjaban, Near Heritage Park, Agartala, P.O. Kunjaban, Pin-799 006, District-West Tripura
11. Sri Bishnupada Shome, s/o Rakesh Ranjan Shome, Assistant Professor, College of Teacher Education, P.O. Pabiachhera, P.S. Kumarghat, District-Unakoti Tripura, Pin-799 264
12. Smt. Nandita Maunder, Page 5 of 29 d/o Phani Bhusan Majumder, Assistant Professor, Institute of Advanced Studies in Education(IASE), Kunjaban, Near Heritage Park, Agartala, P.O. Kunjaban, Pin-799 006, istrict-West Tripura
13. Dr. Partha Sarathi Ghosh, s/o Ratan Kumar Ghosh, Assistant Professor, Institute of Advanced Studies in Education(IASE), Kunjaban, Near Heritage Park, Agartala, P.O. Kunjaban, Pin-799 006, District-West Tripura
14. Smt. Chandana Bhowmik, d/o Kanti Bhusan Bhowmik, Assistant Professor, Institute of Advanced Studies in Education(IASE), Kunjaban, Near Heritage Park, Agartala, P.O. Kunjaban, Pin-799 006, District-West Tripura
15. Sri Saikat Saha, s/o late Pradip Chandra Saha, Assistant Professor, College of Teacher Education, P.O. Pabiachhera, P.S. Kumarghat, District-Unakoti Tripura, Pin-799 264
16. Smt. Bulti Debnath, d/o Chitta Ranjan Debnath, Assistant Professor, Institute of Advanced Studies in Education(IASE), Kunjaban, Near Heritage Park, Agartala, P.O. Kunjaban, Pin-799 006, District-West Tripura
17. Smt. Pratima Das, d/o Jagadish Chandra Das, Assistant Professor, College of Teacher Education, P.O. Pabiachhera, P.S. Kumarghat, District-Unakoti Tripura, Pin-799 264
18. Smt. Atoshi Chakma, d/o late Kalpa Ranjan Chakma, Assistant Professor, College of Teacher Education, P.O. Pabiachhera, P.S. Kumarghat, District-Unakoti Tripura, Pin-799 264
19. Sri Uttam Kumar Das, s/o Lal Mohan Das, Assistant Professor, College of Teacher Education, P.O. Pabiachhera, P.S. Kumarghat, District-Unakoti Tripura, Pin-799 264
20. Smt. Jasmine Rupini, d/o Chandroday Rupini, Assistant Professor, College of Teacher Education, P.O. Pabiachhera, P.S. Kumarghat, District-Unakoti Tripura, Pin-799 264
21. Sri Sudhir Chandra Das, s/o Dhirendra Chandra Das, Assistant Professor, College of Teacher Education, P.O. Pabiachhera, P.S. Kumarghat, District-Unakoti Tripura, Pin-799 264
22. Sri Ajit Roga, Page 6 of 29 s/o Sachin Roga, Assistant Professor, College of Teacher Education, P.O. Pabiachhera, P.S. Kumarghat, District- Unakoti Tripura, Pin-799 264
23. Sri Sambhu Debbarma, s/o Charan Krishna Debbarma, Assistant Professor, College of Teacher Education, P.O. Pabiachhera, P.S. Kumarghat, District-Unakoti Tripura, Pin-799 264
24. Smt. Dipti Debbarma, d/o late Biralal Debbarma, Assistant Professor, Institute of Advanced Studies in Education(IASE), Kunjaban, Near Heritage Park, Agartala, P.O. Kunjaban, Pin-799 006, District-West Tripura
25. Smt. Mun Mun Das Biswas, d/o Ganesh Chandra Das Biswas, Assistant Professor, Institute of Advanced Studies in Education Kunjaban, Kunjaban, Near Heritage Park, Agartala, P.O. Kunjaban, Pin-799 006, District-West Tripura
----Respondent(s) For Petitioner(s) : Mr. A. K. Bhowmik, Sr. Adv Mr. S. Bhattacharjee, Adv Ms. A. Banik, Adv For Respondent(s) : Mr. S. Chakraborty, Addl. G.A. Ms. A. S. Lodh, Addl. G.A. Mr. P. Datta, Adv Mr. S. Bhattacharjee, Adv Ms. P. Sen, Adv Date of hearing : 14.11.2017 Date of delivery of Judgment and order : 03.04.2018 Whether fit for reporting : YES HON'BLE MR. JUSTICE S. TALAPATRA JUDGMENT AND ORDER 14.11.2017 These writ petitions being WP(C) No. 496 of 2015 [Debashish Roy vs. Tripura Public Service Commission and Ors.] and WP(C) No. 674 of 2015 [Shri Chandan Kumar Paul vs. Tripura Public Service Page 7 of 29 Commission and Ors.] are combined for obvious reason that the question that has been raised in those writ petitions are common and identical notwithstanding that the selection in respect of the subject is different. In WP(C) No. 496 of 2015, the selection in the post of Assistant Professor in Education in the Institute of Advance Studies in Education (IASE in short)/College of Teachers Education (CTE) under the Education (Higher) Department, Govt. of Tripura has been challenged, whereas in the writ petition being WP(C) No. 674 of 2015, the selection in the post of Assistant Professor in Education in the Institute of Advance Studies Education in Political Science (IASE in short)/College of Teachers Education (CTE) under the Education (Higher) Department, Govt. of Tripura has been challenged. Consequently, the selection and appointment of the private respondents viz the respondents No. 5 to 25 in both the writ petitions have been called in question by the writ petitioners. Since a common question wades through these writ petitions, it would be apposite to decide them by a common judgment, however, having due regard to the variation of facts.
[2] Before we dwelled upon, the common question those raised in the writ petitions the minimal facts those would be required to have the perspective fact may be introduced at the outset.
Page 8 of 29WP(C) No. 496 of 2015
[ Debasish Ray vs. Tripura Public Service Commission and Ors.] [3] The petitioner in this writ petition has been serving as the Post Graduate Teacher under the Govt. of Tripura and he has completed Masters of Arts in English and Masters of Arts in Education. He has also completed the Bachelor of Education. The petitioner has as well cleared the State Level Eligibility Test (SLET) conducted by the SLET Commission in the year 2011 and the National Eligibility Test (NET) conducted by the UGC in the year 2012 in Education. These facts are not in dispute. It is also not in dispute that the respondent No. 1, the TPSC issued the advertisement No. 1-2015 (Annexure-2 to the writ petition) inviting application from the eligible candidates for the post of Assistant Professor for IASE/CTE. In the advertisement it has been clearly provided as under:
"Subject wise vacancy for direct recruitment to the post of Assistant Professor (Group-A Gazetted), Institute of Advanced Studies in Education (IASE)/College of Teachers Education (CTE) is mentioned below:
Sl. Subject No. of Sl. Subject No.
No. Post No. of
post
1. Psychology 02 8. Political 01
Science
2. Economics 02 9. History 01
3. Bengali 03 10 Mathematics 01
4. English 03 11 Physics 01
5. Chemistry 02 12 Life Science 01
6. Education 06 13 Geography 01
7. Sanskrit 02 14 Commerce 01
Educational & Other qualification:
Essential:
Page 9 of 29
(i) A Master's Degree in
Science/Humanities/Arts with 50% marks (or an equivalent grade in a point scale wherever grading system is followed) from a recognized University.
(ii) M.Ed. with at least 55% marks ( or an equivalent grade in a point scale wherever grading system is followed ) from a recognized University.
(iii) Any other stipulation prescribed by the UGC/Any such affiliation body/State Govt. from time to time for the positions of Principal and Lectures, shall be mandatory.
Or
(i) M. A. in Education with 55% marks (or an equivalent grade in a point scale wherever grading system is followed ) from a recognized University.
(ii) B. Ed. With at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) from a recognized University and
(iii) Any other stipulation prescribed by the UGC/Any such affiliation body/State Govt. from time to time for the positions of Principal and Lectures, shall be mandatory."
[4] The petitioner having the essential qualifications applied for the post of Assistant Professor in Education being aware of the procedure as reflected in the said advertisement No. 1-2015 (Annexure -2 to this writ petition). According to the petitioner, his additional qualifications would have been the added advantage for selection. The petitioner has alleged that the subject expert who was the part of the interview board was an Assistant Professor. According to him, "as per rule it was expected in the interview board constituted by the TPSC, there should be an expert against each subject who holds a superior post", but he did not refer to any specific rule. [5] The further ground of objection is that, some of the candidates did not have the essential qualifications like Page 10 of 29 NET/SLET as stipulated by the UGC regulation, 2010. But those persons have been appointed as the Assistant Professor by the respondent No. 3 and 4 on 31.03.2015, on the day of announcing election for Tripura Tribal Areas Autonomous District Council (TTAADC), but as per the norms, according to the petitioner, no appointment should have been issued in view of the said announcement of the election. The petitioner has admitted that the mode of selection was clearly spelt out by the TPSC, the respondent No. 1, in their website in terms of the reference made in the said advertisement. It was clearly notified that (see para-9 of the writ petition) the recruitment would be made by interview only. However, if the number of candidates exceeds a certain limit in comparison to the number of the posts, the screening test would be held for short listing the candidates. The subject of the test would be general knowledge and current affairs bearing 100 marks. Further, the petitioner has asserted that 120 candidates applied for the post of Assistant Professor in Education against the total number of vacant posts being 6. The commission did not hold any written/screening test for short listing the candidates. Thus, it is clear that the TPSC has deviated from the espoused policy.
[6] On 31.03.2015 when the list of the candidates was published, it appeared to the petitioner that some of Page 11 of 29 the candidates who had applied for the different subject had secured almost similar marks. Finally the petitioner has submitted that the subject wise merit list was not prepared or declared by the Commission based on which they had recommended the candidates. Thus, in terms of the UGC regulation, 2010, the said procedure shall be cancelled.
[7] After the recommendation was made, the petitioner in order to ensure disclosure of the relevant "information" applied to the State Public Information Officer (SPIO) of the TPSC. The TPSC had clearly stated that the selection has been made as per the Recruitment Rules and guideline given in the gazette notification dated 01.12.2014. According to the petitioner, for purpose of appointment of faculty in the CTE, the requirement for qualification is slightly different. In the IASE both the B.Ed and M.Ed examination are taught, but in the CTE, only the B.Ed is taught. Thus, the selection of those posts cannot be clubbed together. Moreover, as per the Govt. Notification, the designation of the post is also different. Finally, the petitioner submitted a representation to the Secretary to the TPSC on 11.05.2015 for cancelling the selection of the candidates who did not fulfill the eligibility criteria as prescribed by the UGC and the NCTE.
Page 12 of 29[8] In their reply dated 11th August, 2015 to the said representation, the TPSC has clearly asserted that the eligibility of the candidates was laid as per guidelines of NCTE as published in the Gazette notification (Govt. of India) dated 1st December, 2014. The TPSC has thereafter stated as follows:
"The selection has been made on the performance in the Interview Board and the overall assessment of the candidates such as the academic achievements, personality, intelligence, general knowledge and other interests and hobbies etc. of the candidates were taken into consideration. Grades/ marks were awarded on the basis of consensus of the Members of the Board."
[9] Being dissatisfied with the said reply, the petitioner consecutively submitted two demand notices dated 29.06.2015 and 13.07.2015 (Annexure-9 collectively). The similar issues have been raised in the notices with more details. Further, a reminder with addendum of facts was issued to the TPSC on 02.08.2015. In response to the demand notice dated 29.06.2015 and the said reminder/addendum dated 02.08.2015, TPSC has categorically stated that in terms of the requisition sent to it, an initiative had been taken for direct recruitment in 27 vacant posts of Assistant Professor in IASE and CTE, based on Recruitment Rules as published by the notification No. F.1(668)-DHE/Estt(G)/11 dated 18.07.2014 and on the same stipulation, as incorporated in the advertisement dated 03.01.2015. The TPSC has further stated as follows: Page 13 of 29
"On being interviewed the eligible candidates the Commission recommended the name of 21(twenty one) suitable candidates for appointment to the post of Assistant Professors, IASE/College of Teachers Education. Accordingly, the Department appointed the recommended candidates on 31.03.2015 with direction to report for duties in the place of posting on 10.04.2015 and they already reported in their duties.
In consultation of the demand notices in question it is observed that the notice given namely Sri Debashish Roy has applied for the post of Assistant Professor, IASE/College of Teacher Education in the subject/specialization of Education in reference to the advertisement of the TPSC No. 1/2015 (Item No. 1) dated 03.01.2015 and participated in the recruitment process taken by the Commission. Hence, it is relevant to mention here that the notice giver has not challenged the Recruitment Rules/ advertisement before participating in the Recruitment process. But, the notice giver preferred demand notice on being unsuccessful as per publication of the result/recommendation of the TPSC, which is not sustainable in the law point of view.
In view of the above, it is pertinent to mention here that the TPSC is a statutory body/competent authority for selection of suitable candidates in reference to the Recruitment Rules/advertisement for direct recruitment to the Group-A & B (Gazetted) posts, while the Commission recommended 21(twenty one) suitable candidates for appointment to the post of Assistant Professor, IASE/CTE, Kumarghat and all grievances of the notice giver were against the selection process of the TPSC.
As such, we do not have any other information in this regard."
[10] In the demand notice dated 29.06.2015 it was asserted that one of the respondents as illustrated, the respondent No. 5, did not have the essential qualification like NET/ SLET as per the Recruitment Rules and the guidelines as published in the notification dated 01.12.2014. So for the question of deficiency of qualification is concerned, no other illustration has been given in the notice. Later on, another notice was served for Page 14 of 29 the same purpose on 13.07.2015. In the said notification, no fresh question was raised, rather there were some general allegations of irregularities. [11] From the notification dated 31.03.2015 by which provides the subjects/discipline-wise statement in respect of the total application received, it appears that in the subject of Education total number of applications received was 212 and in the Political Science total number of application received was 37. After scrutiny in terms of eligibility, the total number of eligible candidates came down to 120 in the subject of Education and 16 in the subject of Political Science.
[12] It further emerges that after the interview the following candidates were found suitable for recommendation in Education and Political Science. In the subject of Education:
1. Uttam Mitra (UR-PH) - Sl. No. 12 2. Sudhir Ch. Das (SC) Sl. No. 18 3. Ajit Rouga (ST) Sl. No. 19
4. Sambhu Debbarma (ST) Sl. 20 5. Dipti Debbarma ( ST) Sl. No. 21 In the subject of Political Science:1. Smti. Himabati Reang (ST) Sl. No. 16
[13] Only one candidate has been selected in the subject of Political Science. The total number of candidates recommended by the TPSC was 21 on the basis of the Page 15 of 29 interview. Thus, so far this petitioner is concerned, he cannot have any grievance against any of the candidates who were selected for the reason that all of them have been selected against the reserved category whereas, admittedly the petitioner belongs to the UR category. Even then, the petitioner has impleaded the selected candidates from the other discipline, knowing fully that he does not have the qualification for participation in those disciplines. This has been so done as the petitioner has also challenged the application of the reservation policy. [14] For that purpose, the petitioner has raised objection stating that while applying the reservation policy, the 100 percent roster against each subject has not been followed and hence, the selection has to be interfered with. It is apparent that the members of the selection committee has not been impleaded as the party, though at Para-21 the petitioner has asserted that "the method of selection reveals mala fide intention of the interview board as they recommended the disqualified candidates". For appointment to the post Assistant Professor, if the rules prescribed by the NCTE relating to the educational qualification [for maintaining the standard of the higher education for appointment in the post of Assistant Professor] are not observed, then the action of the TPSC has no ground to hold so but it relates to recommendation. Page 16 of 29 [15] The petitioner has expressed his concern for the quality education, but there is no illustration how the fairness in conducting the selection has been compromised by the TPSC.
[16] The TPSC-respondent by filing their reply has clearly revealed their records in defence of their action. Those averments may be briefly summarized as follows:
(i) The TPSC has followed the NCTE guidelines which was notified in the Gezettee of India published on 01.12.2014 (Annexure -B to their reply).
(ii) All the posts were the Assistant Professor in Teachers Training College who would teach B. Ed. Class. Their qualification was prescribed in the NCTE notification dated 1.12.2014 and those are as follows:
5.2 Qualification B. Perspective in Education or Foundation Course
(i) Postgraduate degree in Social Science with minimum 55% marks, and
(ii) M. Ed. Degree from a recognized university with minimum 55% marks;
Or
(i) Postgraduate (MA) degree in Education with minimum 55% marks; and
(ii) B. Ed/ B. El. Ed. Degree with minimum 55% marks .
(iii) Clearance of NET and SLET are not compulsory for eligibility to the post of Assistant Professor in B.Ed degree college as shown in the said notification dated 01.12.2014.
[17] So far the respondent No. 5 is concerned she had all the essential qualifications viz M.Ed., B.Ed. and MA in education moreover she had cleared the SLET in Education. She was interviewed by the selection committee and her name was recommended on the basis of her Page 17 of 29 performance and there is no illegality. Out of 21 candidates who were recommended for recruitment, only 2 candidates had cleared NET/SLET.
[18] Finally, the respondents have questioned the maintainability of the writ petition on the ground of estoppel by the conduct, as the petitioner had challenged the action of the respondents for making the recommendation by the said notification date 31.03.2015 (page-134 of the writ petition). After participation in the said process being fully aware how the selection would be made, the petitioners cannot challenge the process. [19] The respondent No. 5, 17, 19, 24 and 25 in a group and the respondents No. 6, 10, 14, 16, 18, 21 and 22 in a group filed two separate affidavits disputing the main averment of the writ petition and asserting that they had the essential qualifications for recruitment to the post of Assistant Professor in the respective discipline. WP(C) No. 674 of 2015
[Chandan Kr. Paul vs. Tripura Public Service Commission and Ors.] [20] The petitioner in this writ petition applied for selection to the post of Assistant Professor in Political Science. He had the essential qualification namely, Master of Arts in Political Science, Master of Arts in Education and Bachelor in Education from IASE. That apart, he had Page 18 of 29 cleared NET conducted by the UGC in the year 2010 and SET by the SLET Commission in the year 2011 in Political Science. He has been pursuing Ph.D programme under the Tripura University. The other grounds taken in this writ petition are exactly identical to the other writ petition and for sake of gravity, those are not repeated. Even the information disclosed to the writ petitioner of WP(C) No. 496 of 2015 under the RTI Act, has been used by the writ petitioner in this writ petition. To be noted that only one candidate namely Smti. Himabati Reang, the respondent No. 5, had been selected on the basis of her performance in the interview in the subject of Political Science. But none other than Smti. Himabati Reang, who belongs to ST community, was found suitable for recommendation. But the petitioner has not only challenged the selection of Himabati Reang but the recommendation of all other candidates from the other disciplines has been challenged in the similar manner as adopted by the other writ petitioner. Unless the petitioner could demonstrate that the respondent No. 5 did not have the basic qualification the petitioner cannot challenge his recommendation simply for the reason that respondent No. 5 has been considered as the ST candidate and therefore, there cannot be any comparison of performance in the interview between the respondent No. 5 and the petitioner. In this writ petition Page 19 of 29 allegation has been made that the reservation policy has not been applied subject wise. But there is no description or reference how such breach has taken place. [21] The TPSC-respondents filed the reply following the same line following which they filed the reply in WP(C) No. 496 of 2015 [Debashish Roy vs. Tripura Public Service Commission and Ors.]. The respondents No. 3 and 4 filed the reply and denied the allegation. They have averred that the requisition for 27 posts of Assistant Professor in IASE, Agartala and CTE, Kumarghat were sent to the TPSC. With their reply they had given the copy of the Recruitment Rules and a table of the vacant post required for each discipline. For Political Science there was only one vacancy, whereas for Education there were 6 vacancies. As per the Recruitment Rules the essential qualifications for the post of Assistant Professor in IASE and CTE are as follows:
"Essential Qualifications:
A. (i) A Master's Degree in Science/Humanities/Arts with 50% marks ( or an equivalent grade in a point scale wherever grading system is followed) from a recognized University.
(ii) M. Ed. With atleast 55% marks ( or an equivalent grade in a point scale wherever grading system is followed) from a recognized University.
(iii) Any other stipulation prescribed by the UGC/Any such affiliating body/State Govt., from Page 20 of 29 time to time for the positions of Principals and Lectures shall be mandatory.
OR
(i) MA in Education with 55% marks ( or an equivalent grade in a point scale wherever grading system is followed) from a recognized University.
(ii) B. Ed. With at least 55% marks ( or an equivalent grade in a point scale wherever grading system is followed) from a recognized University and
(iii) Any other stipulation prescribed by the UGC/ Any such affiliating body/ State Govt., from time to time for the positions of Principal and Lectures shall be mandatory."
[22] From para-12 of the reply filed by the respondent No. 5 it appears that she has got MA in Political Science, M.Ed. and B. Ed. from Tripura University and she had cleared the SLET in the year 2015. She has secured 56.25 % in MA in Political Science, 67.83% in M. Ed. and 60.07% in B. ED and thus she has got all the essential qualifications for appointment for the post of Assistant Professor in IASE and CTE.
[23] The respondents No. 5, 6, 18, 20 and 25 in a group, the respondents No. 7, 11, 15, 17, 19, 21, 22, and 23 in a group and the respondents No. 20 and 30 in a group filed the separate reply showing that they have the basic and essential qualifications for recruitment to the post of Assistant Professor in IASE or CTE. The petitioners have not controverted that aspect, but they have insisted that NET/SLET clearance is the essential qualification and those have cleared that test cannot be recommended for appointment as the Assistant Professors in IASE or CTE. Page 21 of 29 [24] Mr. A. K. Bhowmik, learned senior counsel appearing for the petitioners has submitted that the private respondents who have been recommended for recruitment do not have the basic qualifications in terms of the UGC regulation called THE UGC Regulations on Minimum Qualification for Appointment of Teachers and Other Academic Staff in the Universities and Colleges and Measures for the Maintenance of Standard in Higher Education, 2010. According to the said regulation for recruitment to the post of Assistant Professor, the following qualifications shall be with the candidates applying for selection.
"4.4.1. Arts, Humanities, Science, Social Science, Commerce, Education, Languages, Law, Journalism and Mass Communication.
(i) Good academic record as defined by the concerned university with at least 55% marks ( or an equivalent grade in a point scale wherever grading system is followed) at the Master's Degree level in a relevant subject from an Indian University, or an equivalent degree from an accredited foreign university.
(ii) Besides fulfilling the above qualifications, the candidate must have cleared the National Eligibility Test (NET) conducted by the UGC, CSIR or similar test accredited by the UGC like SLET/SET.
(iii) Notwithstanding anything contained in sub-
clauses (i) and (ii) to this Clause 4.4.1, candidates, who are, or have been awarded a Ph. D Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of Ph. D Degree ) Regulations, 2009, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/ Colleges/ Institutions.
(iv) NET/SLET/SET shall also not be required for such Masters Programmes in disciplines for which NET/SLET/SET is not conducted."
Page 22 of 29[25] Mr. Bhowmik, learned senior counsel has further submitted that before recommending the candidates who appeared in the interview there was no discipline-wise identification of the post. In State of UP and Ors. v. M. C. Chattopadhyaya and Ors., reported in 2004 12 SCC 336, the Apex Court has clearly enunciated the law as under:
"6. While, therefore, we are of the considered opinion that there can be a reservation in respect of post of Professor and the provisions of the Reservation Act would apply, but the same cannot be applied taking all the Professors as a cadre and it has to be made subjectwise, as has been earlier construed and held by this Court. We are also of the opinion that there cannot be a reservation for an isolated post. We further observe that in deciding the question of reservation the appropriate authority must follow the roster as has been published in exercise of power under Section 3(5) of the Reservation Act and then the roster should be duly complied with in accordance with the principles enunciated by this Court in Sabharwal case."
[Emphasis added] [26] Mr. Bhowmik, learned senior counsel has further submitted that without clearance of the NET or SLET, no person can be appointed as the Assistant Professor in IASE or CTE in terms of the UGC regulation. Finally, Mr. Bhowmik, learned senior counsel has submitted that the merit list was not prepared the discipline-wise or subject- wise for applying the reservations policy. [27] Mr. S. Chakraborty, learned Addl. G.A. and Mr. P. Dutta, learned counsel appearing for the TPSC respondents have however, seriously contested the Page 23 of 29 statements made by Mr. A. K. Bhowmik, learned senior counsel and submitted that the said UGC regulation, 2010, does not have any application for recruitment to the post of Assistant Professor. On the contrary such recruitment shall be guided and governed by the National Council for Teachers Education guideline as published in the Gazette of India dated 01.12.2014 [Annexure-B to their reply] where in para-5, the qualifications for the various teaching faculties has been provided. On scrutiny, it appears that there is difference with the essential qualification as incorporated in the recruitment rules. [28] According to Mr. Datta, learned counsel, all the recommended candidates have the said qualifications as prescribed in the Recruitment Rules. Even the petitioners have not challenged the recruitment rules. That apart, Mr. Datta, learned counsel by producing the records, has contended that the claim of the writ petitioners that no merit list was prepared subject-wise is without any foundation. He has handed up a copy of the merit list in the subject of Political Science and Education. According to the said merit list the petitioner in WP(C) No. 674 of 2015, who belongs to UR (PH), secured 62 whereas Smti. Himabati Reang who belongs ST category secured 68 and one Ratan Acharjee from the UR category secured 68 and another Jhulan Debnath from the UR category secured 65. Page 24 of 29 Similarly, in the merit list in the subject of Education, Munmun Das Biswas belonging to UR category secured 78, Uttam Mitra belonging to UR (PH) category secured 73 whereas the petitioner of WP(C) No. 496 of 2015 has occupied a position which is far below in the merit position, i.e. 21 as he secured 68. The other private respondents who have been recommended as the reserved candidate namely Sudhir Chandra Das (SC) secured 65, Sri Ajit Roga (ST) secured 65 and Sambhu Debbarma (ST) secured 65 and another candidate namely Dipti Debbarma (ST) secured 59.
[29] The relevant papers have been produced before this Court by the TPSC for inspection. Mr. P. Datta, learned counsel has submitted that the process was completed before the judgment of this Court in Dr. Md. Mijan Hossain v. State of Tripura and Others reported in 2015 (1) TLR 749 and Bijay Bhattacharya v. State of Tirpura and Others, reported in 2016 (1) TLR 449 and as such, the TPSC has followed the earlier procedure in fixing the reservation in the contest of the merit. Md. Mijan Hossain (supra) has settled the controversy by a definite direction which will have only the prospective effect.
[30] In view of the direction given by this Court in Dr. Md. Nizan Hussain (supra) the State had taken the Page 25 of 29 initiative for implementation of the direction contained in M.C. Chattopadhyaya (supra). Moreover, the petitioner has failed to furnish details how that principle has been violated. That apart, in no manner, the petitioners have been prejudiced as the petitioners have failed to show that had the discipline-wise reservation was applied the petitioner would have secured the recommendation. Both Mr. S. Chakraborty, Addl. G.A. and Mr. P. Datta, learned counsel for the TPSC have strongly raised the issue of the estoppel by conduct so far the method of selection is concerned.
[31] As regards the estoppel by conduct, the counsel for the official respondents have placed their reliance on a recent decision of the Apex Court in D. Sarojakumari v. R. Helen Thilakom and Ors., reported in 2017 (11) Scale 366 where the Apex Court after considering the precedents on estoppel by conduct has observed that having taken part in the process of selection with full knowledge that the recruitment was made under the general rules, the respondents have waived a right to question that the advertisement or the methodology adopted by the Board for making selection. The learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance by Page 26 of 29 the respondents. A candidate cannot turn around after taking part in the selection process.
[32] The other counsel appearing for the private respondents have adopted the submission made by Mr. Chakraborty, Addl. G.A. and Mr. P. Datta, learned counsel appearing for the TPSC respondents.
[33] Having appreciated the submissions, made by the learned counsel, this Court is of the view that so far the recruitment to the post of Assistant Professor in IASC or CTE is concerned, such recruitment cannot be governed by the UGC regulation, 2010 as published in the Gazette of India dated 18.09.2010. The said recruitment shall wholly be guided by the notification published by the National Council for Teachers Education in the Gazettee of India dated 01.12.2014. Thus, the essential qualifications as prescribed in that notification would be the basis and the essential qualification for recruitment to the post of Assistant Professor in IASE or CTE. Even in the Recruitment Rules those provisions are engrafted. Hence, there is no substance in the plea that unless someone clears the NET or SLET he/she cannot be selected for recruitment to the post of Assistant Professor in IASE or CTE.
Page 27 of 29[34] From scrutiny of the records, this Court has found that the discipline-wise merit list was prepared on the basis of the performance in the interview. The said assessment cannot be interfered by this Court, unless the mala fide is specifically plead and proved against the individual members of the interview board on impleading them as the party in the proceeding. But in this case, except one solitary and sweeping allegation, there is no material in support of the allegation of mala fide. When an expert body assesses the performance the Court is loath in interfering their assessment unless it is demonstrated that the individual members of the interview board acted mala fide or in breach of the espoused procedural facets. Hence, this plea also falls through as this Court has referred the relevant part of the merit list. The petitioner did not secure such marks in their respective category to be recommended by the TPSC.
[35] The other question that has been raised regarding earmarking the post before-hand in terms of the reservation policy, there cannot be any doubt that the official respondents owe an obligation to earmark the post following the statutory roster before-hand. While making the requisition, the respondents No. 3 and 4 had asserted that the reserved seats against the total bulk of 27 vacant posts, but not discipline-wise. That is the reason, perhaps Page 28 of 29 why the TPSC had followed the old principle, adjusting the reservation in terms of the merit. But in this writ petition no averments had been made what would expose the prejudice. No doubt even the learned counsel appearing for the petitioner did not dispute the statement that in Dr. Md. Nizan Hussain (supra) this Court had directed the State for affirmative action in respect of the reservation discipline-wise. But it is an admitted position that the recommendation under challenge was made prior to the judgment of Dr. Md. Nizan Hussain (supra). Hence, this court would revisit that aspect.
[36] This Court is totally in agreement that both the petitioners cannot question the method of selection as that was well adverted by way of the advertisement No. 1-2015 (Annexure-2 to the writ petition) Moreover, in Clause-10 it has been stated that the instructions to the candidate will be available in the official website of the TPSC and in that website it is clearly stated that the selection would be made by interview. "The recruitment by interview only". Being aware of this method and having participated thereafter in the selection process, the petitioners are estopped to question the methodology of selection. [37] When the petitioners have challenged the selection of the other discipline, having not qualified to be recruited in the said discipline such challenge is usually to Page 29 of 29 be axed at the threshold in view of the will settled position of law that persons without the eligibility to be appointed cannot ask for writ of certiorari. Hence, this Court is not persuaded to interfere with the selection process nor with the recommendation as made by the TPSC and further, nor with the recruitment that has been made in favour of the private respondents.
In the result, both the writ petitions are dismissed. There shall be no order as to costs.
JUDGE A.Ghosh