Tripura High Court
The State Of Tripura & Another vs Sri Samudra Debbarma & Another on 13 January, 2020
Equivalent citations: AIRONLINE 2020 TRI 18
Author: Akil Kureshi
Bench: Akil Kureshi, Arindam Lodh
Page 1 of 13
HIGH COURT OF TRIPURA
AGARTALA
Review Petition No.01/2020
The State of Tripura & another
----Petitioner(s)
Versus
Sri Samudra Debbarma & another
-----Respondent(s)
For Petitioner(s) : Mr. A.K. Bhowmik, Advocate General, Mr. Debalay Bhattacharjee, G.A., Mr. Karnajit De, Addl. G.A. For Respondent(s) : Mr. Raju Datta, Advocate.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE ARINDAM LODH Date of hearing and judgment: 13th January, 2020.
Whether fit for reporting : NO.
JUDGMENT & ORDER(ORAL)
(Akil Kureshi, C.J.)
This review petition is filed by the State of Tripura and its authorities seeking to recall and modify judgment dated 03.12.2019 passed by this Court in Writ Appeal No.142 of 2019.
2. Background facts may be noted in brief at the outset:
In the writ petition the petitioner had challenged a memorandum dated 20.08.2018 issued by the General Administration Department of the State of Tripura by which the selection process for the post in Tripura Civil Service ('TCS', for short) and Tripura Police Service ('TPS', for short) were cancelled.
The petitioner had prayed for a direction to complete the selection process which had already been undertaken for the recruitment to the TCS Grade-II and TPS Grade-II services to be completed. Page 2 of 13 Tripura Public Service Commission had issued an advertisement on 30.04.2016 inviting applications from eligible candidates for recruitment to TCS Grade-II and TPS Grade-II (Group-A Gazetted) services by direct recruitment which was governed by Tripura Civil Service Rules, 1965. The petitioner had applied for TCS Grade-II service. Screening test followed by written examinations were conducted. Results of the written examination were also declared. When the oral interviews of successful candidates were pending, upon change of the Government in the State, initially the Government of Tripura issued a notification dated 14.03.2018 suspending all pending recruitment and selection processes in the State. On 05.06.2018 State Government issued a notification laying down new recruitment policy. Eventually the Government of Tripura issued a notification dated 20.08.2018 cancelling all existing recruitment processes which notification was impugned in the writ petition. The learned Single Judge allowed the writ petition holding that once the selection process had commenced, any change in the State policy cannot be applied to such process so as to cancel the selection process. Following observations of the learned Single Judge may be noted:
"26. On appreciation of the submission made by the learned counsel for the parties, this court finds that the respondents No.1 and 2 have utterly failed to provide any reason for cancelling the recruitment process inasmuch as no foundation has been raised to show that action has been taken to protect any greater or public interest the mode prescribed by those service rules for selection is infested impediment in following that procedure. When the Page 3 of 13 law is well enunciated and settled if any change in the recruitment rules is made in the midst of the process that cannot be given a retrospective operation to apply that change or the amended rule in the pending selection process. That apart, when the conflict between the provisions of the subordinate legislation as enacted under proviso to Article 309 of the Constitution of India is eminent with the executive action (the new recruitment policy and the impugned memorandum), there cannot be any amount of hesitation that the provision of the subordinate legislation so far the allotted marks for the personality test is concerned would prevail. Therefore, the State action as aforestated is grossly arbitrary, irrational and predominantly unfair. However, the new recruitment policy may apply where the recruitment rules are not in force and where the recruitment rules are amended in accordance with the executive instructions, consolidated in the new recruitment policy. Since there is no dispute that the TCS Rules, 1967 and TPS Rules, 1967 are not amended by the competent authority as yet with consultation with the TPSC, the cancellation of the recruitment process as initiated by the advertisement No.04/2016 (Annexure-1 to the writ petition) is liable to be interfered by this court on the above grounds and, accordingly it is interfered. The notification dated 05.06.2018 (Annexure-6 to the writ petition) so far it has bearing on the selection of TCS Grade-II and TPS Grade-II and the memorandum dated 20.08.2018 (Annexure-7 to the writ petition) so far it relates to TCS Grade-II and TPS Grade-II stand quashed. The respondent No.3 is directed to complete the selection process within a period of 8(eight) weeks from the date when they would receive a copy of this order and recommend the selected candidates for appointment to the post of TCS Grade-II and TPS Grade-II within the said stipulated time.Page 4 of 13
27. It is clarified that this direction of this court shall be restricted to 30 vacancies of the TCS Grade-II and 15 vacancies of TPS Grade-II as declared by the addendum dated 03.07.2017 (Annexure-2 to the writ petition). The consequential order shall be passed by the respondents forthwith."
3. This judgment of the learned Single Judge was challenged by the State Government before the Division Bench. Division Bench by a judgment dated 03.12.2019 gave only partial relief in the appeal. To the extent there was no challenge to the TPS Grade-II service which was also quashed by the learned Single Judge, relief was granted. The decision of the learned Single Judge to quash the new recruitment policy was also reversed. However, so far as the central issue of cancelling the ongoing selection process of TCS Grade-II service, writ appeal was dismissed. The Court concluded that once the recruitment process had started and had reached to an advanced stage, the same could not have been cancelled merely because the State Government had formulated a new policy of recruitment. It was noticed that only significant change brought about in such new policy was to restrict the marks of oral interview to 10% of the aggregate as against which as per the then prevailing rules, the oral interview represented 11% of the aggregate marks. Only for such minuscule change, the entire selection process which had reached to an advanced stage could not have been cancelled. It was also noted that the proportion of the marks for written as well as oral interviews were prescribed under relevant Regulations which were framed by the Government in exercise of powers under Rule 6 of the Tripura Civil Service Page 5 of 13 Rules. These regulations were thus in the nature of sub-ordinate legislation. The provisions contained in the statutory Regulations could not have been superseded by executive instructions. Relevant portion of the judgment of the Division Bench reads as under:
"[26] As per this amended sub-regulation (1), for the post in question the preliminary examination would be of 200 marks, the main examination would be of 800 marks and the personality test (oral interview) would carry 100 marks. These regulations also provide that the preliminary examination is meant only to be the screening test and the marks obtained in such examination by a candidate will not be considered for final selection. Only those candidates who will be declared qualified at the preliminary examination will be eligible for admission to the main examination. In other words, for selection to the post in question the aggregate of the main examination of 800 marks and personality test through oral interview of 100 marks would be considered. In the aggregate thus the marks would be allotted out of 900, 100 of which would be from the oral interview. The proportion of the oral interview as compared to the total marks would thus come to 11%.
[27] We have reproduced the entire notification dated 5th June, 2018 under which the State Government had published its new recruitment policy. One of the major thrusts of this policy was to abolish oral interviews for Group-D posts. However, we are not concerned with this policy change. In so far as Group A and B posts are concerned, this policy provides that the weightage for interview should not exceed 10% of the total marks. Only in exceptional cases the same may be increased beyond 10% with the approval of the Cabinet. There is no other change that this new policy makes insofar as the present Page 6 of 13 selection process is concerned. We have noted that as per the existing policy which was being applied for the selection process which had already commenced, the proportion of oral interview to the total marks was 11%. As against this, the new policy prescribes a ceiling of 10% weightage for oral interviews.
[28] The Government while framing its policies, undoubtedly has a vast latitude. As long as the policy is based on a well-informed decision, the executive also has the liberty to experiment in policy formation. A policy change which restricts the preparation of marks for oral interview cannot be in absence of sound reasons faulted. Nevertheless, the question is, was it open for the Government to superimpose such policy and the changes brought about through such policy in the recruitment process which had travelled to an advanced stage? The answer to this question for multiple reasons must be in the negative. The reasons are as follows :
[29] Firstly, as noted, the new policy of the Government restricts the marks for oral interviews to 10% of the total. The existing formula being applied for selection to the posts in question carried oral interview weightage of only 11% which was fractionally higher than what the new policy prescribes. For such a minor policy change the entire exercise of inviting applications from eligible candidates, holding screening test for weeding out weaker candidates, allowing successful candidates passing the screening test to appear in the written examination and conducting the written examination could not have been be annulled. No pressing grounds are demonstrated before us for taking such a drastic measure for an insignificant change in the policy parameters.
[30] Secondly, allowing the Government to apply the policy change at such an advanced stage Page 7 of 13 would undoubtedly breach the principle of changing the rules of the game once the game has begun. The fundamental philosophy behind the Courts laying down the said principle is that the executive discretion cannot be allowed to operate in such a way that midway through the selection process the very selection criteria can be changed. This would in addition to giving rise to uncertainty in public selection process, also be open to mala fide application where the rules for selection would be changed to suit so as to include certain wanted or to exclude unwanted candidates. In the present case, there may not be any element of bias. Nevertheless permitting the Government to bring in a new set of rules and to cancel the entire selection process which has travelled to an advanced stage has a risk potential to permit arbitrary decision of the executive to prevail. To frame a new recruitment policy may be a perfectly valid and legitimate policy decision of the Government. We do not intend to; in fact we are not even called upon to interfere with such policy decision. However, the subsequent decision of the Government to annul the entire selection process which had reached an advanced stage only so that the new policy of recruitment can be applied by restarting the selection was an arbitrary decision.
[31] There is yet another reason why the Government decision cannot survive the test of law. We may recall, the proportion of marks for the screening test, written main examination and oral interview have been prescribed under the relevant Regulations. These Regulations are in exercise of powers conferred under Rule 6 of the said Rules. These Regulations are thus in the nature of subordinate legislation. The prescription of the marks for written test and oral interview thus tress their origin to statutory Regulations. The field is thus not open and is occupied by legislation. Executive Page 8 of 13 instructions cannot override such statutory prescriptions. By issuing an executive fiat it was, therefore, not open for the State Government to modify the proportion of the marks for oral interview. In other words, unless and until the Regulations are amended, the policy declaration under the notification dated 5th June, 2018 insofar as it pertains to limiting the marks for oral interview to 10% of the aggregate, would not prevail.
[32] For such reasons, we do not find any error in the view of the learned Single Judge in allowing the writ petition of the original writ petitioner. However, before closing couple of clarifications would be needed. Firstly, the learned Single Judge has struck down even the notification dated 5th June, 2018. This was neither under challenge nor shown to be in any manner unlawful, except to the extent the provisions made in the said notification conflict with the existing Rules and Regulations. Subject to these observations, the decision of the learned Single Judge to set aside the notification dated 5th June, 2018 must be reversed. Secondly, the learned Single Judge quashed the memorandum dated 20th August, 2018 insofar as it relates to TCS Grade-II and TPS Grade II. The petitioner had not challenged cancellation of examination of TPS Grade-II. Such cancellation, therefore, could not have been set aside. We are conscious that the considerations and parameters in both sets of recruitments may be similar. However there was no challenge before the learned Single Judge to the cancellation of the TPS Grade - II examination held by the State Government. The petitioner was not even aggrieved by it. Without a formal challenge, without full material being brought on record and arguments advanced by both sides it would not be proper to extend the relief to the recruitment of TPS Grade - II services also which as Page 9 of 13 noted, the petitioner had never challenged. Such later directions for setting aside Government decision to cancel TPS Grade II examination of the learned Single Judge are also, therefore, reversed.
[33] The appeal of the Government is allowed to the above extent. However, so far as the petitioner's main challenge to the cancellation of selection process for the post of TCS Grade - II by virtue of impugned memorandum dated 20th August, 2018 is concerned, the decision of the learned Single Judge is confirmed.
[34] In view of the disposal of the appeal of the Government it would now be for the Government to complete the selection process for the post in question from the stage where it had been stopped. The remaining procedure may be completed within a period of 3(three) months from today.
Pending application(s), if any, also stands disposed of."
4. Review of this judgment is sought by the State and argued by learned Advocate General on following grounds:
(i) The principle that the rule of the game cannot change after the game has begun cannot be applied in the present situation;
(ii) Being a policy matter in exercise of writ jurisdiction High Court would not interfere with the decision of the Government;
(iii) Maximum thrust is pressed on a decision of Division Bench of this Court in case of Sri Partha Das vrs. The State of Tripura & others [WP(C) No.946 of 2018 and connected Page 10 of 13 petitions] dated 03.10.2019 in which the decision of the State Government to cancel the selection process of Enrolled Followers in Tripura State Rifles was upheld, writ petitions were dismissed.
5. None of the grounds raised by the learned Advocate General in the present review petition would persuade us to recall the said judgment. Firstly, review jurisdiction is necessarily narrow and limited. A review can be granted only upon being pointed out error of law or facts apparent on face of the record. Review cannot be converted into a rehearing or second innings to argue the same grounds which were already advanced and decided. Whether the principle of any change in the policy not being applicable to the ongoing selection process which had reached to an advanced stage was already argued at length and decided in the judgment under review. So also the question of the Government policy being open to limited judicial review.
6. Only contention of note which requires some elaboration is the reliance on the decision of the Division Bench of this Court in case of Partha Das (supra). Firstly, it is unfortunate that such decision was not brought to our notice when the writ appeal was heard at considerable length. This Court, therefore, had no occasion to consider the issues decided in such judgment. Unearthing of a decision which may have a bearing on the issues decided in the judgment under review, cannot be a ground for recall or review of the judgment. Even otherwise, though while recognizing that certain issues did overlap in the case of Partha Das (supra) and Page 11 of 13 the judgment under review, the two decisions cannot be stated to be irreconcilable. In order to appreciate these observations, we may notice the facts in case of Partha Das (supra) minutely. It was a case in which the petitioners had challenged the decision of the State Government to cancel the selection process pursuant to the formulation of new recruitment policy. The learned Single Judge found that the issues involved carry considerable importance. The group of petitions was, therefore, placed before the Division Bench. Division Bench formulated the question whether the petitioners had indefeasible right for appointment as Enrolled Followers and whether the Court can issue mandamus to the Government of Tripura in exercise of writ jurisdiction directing completion of the process of recruitment and for issuance of letter of appointment to the petitioners. The posts in question were of Enrolled Followers in the Tripura State Rifles, the recruitment of which was governed by the Tripura State Rifles (Recruitment) Rules, 1984. These posts comprised of various categories of workers such as Cooks, Masalchi, Water carriers, Mess servants, Ward boys, Washerman, Helpers and Cleaners and as recorded by the Division Bench from the lowest rank/rung in the hierarchy of Police Service. The procedure for enrolment was prescribed under Rule 10 of the Tripura State Rifles (Recruitment) Rules, 1984. Rule 10 of the said Rules pertains to procedure for enrolment. Sub-rule (1) provided that the enrolment for different ranks shall be done in the manner prescribed in Section 6 of the Act. Chapter-V of the Rules pertains to Recruitment Rules. Rule 24 contained in the said chapter pertain Page 12 of 13 to Recruitment Rules for posts of Enrolled Followers and provided as under:
"24. Recruitment Rules for the Posts of Enrolled Followers: Recruitment to the post of enrolled followers shall be made from amongst person who satisfy the following conditions, namely -
(a) should be in the age group of 18-21 years as on 1st day of July of the year in which advertisement for recruitment is made;
(b) should possess good physique;
(c) should be able to read and write a simple passage in their mother tongue: and
(d) should have proficiency in the work for which they are to be engaged; and
(e) should pass such test as may be specified by the Inspector General in writing."
7. The Division Bench was of the opinion that to bring in new recruitment policy with a purpose of instilling faith in the people in the selection could not be subjected to interference. The principle of promissory estoppel would not apply in the said case.
8. From the perusal of the said judgment and the relevant recruitment rules, it can be straightway seen that in the said decision the question of the statutory rules being superseded by executive instructions did not arise. We have referred to the relevant rules in order to demonstrate that the rules did not specify the proportion of marks for oral interview as compared to written examination. The new recruitment policy of the Government which abolished oral interviews for Group-D posts through executive instructions, therefore, did not clash with a statutory recruitment Page 13 of 13 rules. In comparison in the judgment under review the foundational ground was that posts were Group-A posts for which the marks for oral interview as well as written examinations were prescribed under statutory Regulations. The Government desired to modify this proportion through executive instructions which the Court found was impermissible. This question did not arise for consideration before the Division Bench of this Court in case of Partha Das (supra) in which posts were of the lowest categories of police force.
9. For all these reasons, review petition is dismissed.
10. Pending application(s), if any, also stands disposed of.
(ARINDAM LODH), J (AKIL KURESHI), CJ Pulak