Tripura High Court
The Union Of India vs Sri Swapan Chandra Shil on 26 February, 2019
Author: S. Talapatra
Bench: S. Talapatra
HIGH COURT OF TRIPURA
AGARTALA
Review Pet.03 of 2019
Review Pet.04 of 2019
Review Pet.05 of 2019
Review Pet.06 of 2019
Review Pet.03 of 2019
1. The Union of India,
represented by the Ministry of Home
Affairs, Government of India
2. The Under Secretary,
Staff Selection Commission,
Block No.12, CGO Complex,
Lodhi Road, near JLN Stadium,
New Delhi-110091
3. Staff Selection Commission,
represented by the Chairman,
Block No.12, CGO Complex,
Lodhi Road, near JLN Stadium,
New Delhi-110091
4. North Eastern Regional Office,
Staff Selection Commission, Gauhati,
represented by Regional Director,
Housefed Complex, West End Block,
Late Gate-Basistha Road, P.O. Assam,
Sachivalaya, Dispur, Gauhati-781006
5. The Director General,
CRPF (Central Reserve Police Force),
Service Selection Board (Cell),
Recruitment Branch, Block No.1, CGO
Complex, Lodhi Road, New Delhi-11003
----Respondent-Petitioner(s)
Versus Sri Swapan Chandra Shil, son of Sri Shibu Shil, resident of Joynagar, P.O. Teliamura, Khowai, Tripura
---- Petitioner-Respondent(s) Review Pet.04 of 2019
1. The Union of India, represented by the Ministry of Home Affairs, Government of India Page 2 of 13
2. The Under Secretary, Staff Selection Commission, Block No.12, CGO Complex, Lodhi Road, near JLN Stadium, New Delhi-110091
3. Staff Selection Commission, represented by the Chairman, Block No.12, CGO Complex, Lodhi Road, near JLN Stadium, New Delhi-110091
4. North Eastern Regional Office, Staff Selection Commission, Gauhati, represented by Regional Director, Housefed Complex, West End Block, Late Gate-Basistha Road, P.O. Assam, Sachivalaya, Dispur, Gauhati-781006
5. The Director General, CRPF (Central Reserve Police Force), Service Selection Board (Cell), Recruitment Branch, Block No.1, CGO Complex, Lodhi Road, New Delhi-11003
----Respondent-Petitioner(s) Versus Sri Sajib Roy, son of late Sunil Roy, of Amtali(Roy Colony), P.O.Amtali, Agartala, West Tripura
---- Petitioner-Respondent(s) Review Pet.05 of 2019
1. The Union of India, represented by the Ministry of Home Affairs, Government of India
2. The Under Secretary, Staff Selection Commission, Block No.12, CGO Complex, Lodhi Road, near JLN Stadium, New Delhi-110091
3. Staff Selection Commission, represented by the Chairman, Block No.12, CGO Complex, Lodhi Road, near JLN Stadium, New Delhi-110091
4. North Eastern Regional Office, Staff Selection Commission, Gauhati, Page 3 of 13 represented by Regional Director, Housefed Complex, West End Block, Late Gate-Basistha Road, P.O. Assam, Sachivalaya, Dispur, Gauhati-781006
5. The Director General, CRPF (Central Reserve Police Force), Service Selection Board (Cell), Recruitment Branch, Block No.1, CGO Complex, Lodhi Road, New Delhi-11003
----Respondent-Petitioner(s) Versus Sri Biplab Rudra Pal, son of Sri Suklal Rudra Pal, resident of East Howaibari, P.O. Howaibari, Teliamura, Khowai, Tripura
---- Petitioner-Respondent(s) Review Pet.06 of 2019
1. The Union of India, represented by the Ministry of Home Affairs, Government of India
2. The Under Secretary, Staff Selection Commission, Block No.12, CGO Complex, Lodhi Road, near JLN Stadium, New Delhi-110091
3. Staff Selection Commission, represented by the Chairman, Block No.12, CGO Complex, Lodhi Road, near JLN Stadium, New Delhi-110091
4. North Eastern Regional Office, Staff Selection Commission, Gauhati, represented by Regional Director, Housefed Complex, West End Block, Late Gate-Basistha Road, P.O. Assam, Sachivalaya, Dispur, Gauhati-781006
5. The Director General, CRPF (Central Reserve Police Force), Service Selection Board (Cell), Recruitment Branch, Block No.1, CGO Complex, Lodhi Road, New Delhi-11003
----Respondent-Petitioner(s) Versus Sri Apu Baishya, Page 4 of 13 son of Sri Biswanath Baishya, resident of West Bhubanban, P.O. West Bhubanban, Agartala, West Tripura
---- Petitioner-Respondent(s) For Petitioner(s) : Mr. B. Majumder, CGC Mr. H. Deb, Asst. S.G. For Respondent(s) : Ms. R. Purakayastha, Adv.
Whether fit for
reporting : YES
HON'BLE MR. JUSTICE S. TALAPATRA
Order
26.02.2019
Heard Mr. B. Majumder, learned CGC appearing for the review-petitioners as well as Ms. R. Purakayastha, learned counsel appearing for the petitioner-respondents in Review Pet.No.03 of 2019 [The Union of India and Others versus Swapan Ch. Shil], Review Pet.No.04 of 2019 [The Union of India and Others versus Sajib Roy], Review Pet.No.05 of 2019 [The Union of India and Others versus Biplab Rudra Paul] & Review Pet.No.06 of 2019 [The Union of India and Others versus Apu Baishya]. Those review petitions are consolidated for disposal by a common judgment and order. It is to be noted that the order dated 12.10.2018 which has been sought to be reviewed is a common order by which the writ petitions have been disposed of.
2. By means of this review petition, the judgment and order dated 12.10.2018 has been urged to be revisited inasmuch as this court had occasion to observe as under : Page 5 of 13
"But admittedly, the respondents have not considered the petitioners under the UR category, even though it clearly transpires from the records that all the petitioners had secured more marks or equal marks in some of the forces in comparison or in relation to the candidate who was last selected one. From the table, it has been clearly borne out that the last UR candidate got 42 or 46 but the petitioners despite obtained the same or higher marks were not considered under the UR category."
The respondent-petitioners has asserted that in the employment notification it is provided that those who have been given relaxation in age or qualification, they will not be considered in the UR category. This court had finally directed the respondents (the review petitioners) to consider all the petitioners for recruitment in the post of Constable (GD) under UR category by creating 4(four) supernumerary posts, if vacancies are not available. On consideration, the petitioners shall be given the appointment from the date when the last UR candidate was recruited, but they will not get any financial benefit till they resumed the duty. From the date of their assumption of duty, they will be entitled to all financial benefits, but the benefits be notionally fixed from the date of appointment as would be made in compliance to this direction. The entire exercise was asked to be completed within a period of 3(three) months from the date when the petitioners shall submit a copy of the order to the respondents.
3. Mr. B. Majumder, learned C.G.C. appearing for the review petitioner has at the outset submitted that the respondents have not preferred any appeal and they have preferred this review petition to bring to the notice of this court that it is policy of the Government of India as reflected in the office memorandum No.36011/1/98-Estt.(Res) dated 01.07.1998 [Annexure-4 to the petition] in respect of not treating the reserved category Page 6 of 13 candidates who are given exemption under the UR category on their merit. The said office memorandum, for purpose of reference, is extracted in full :
"No.36011/1/98-Estt.(Res) Ministry of Personnel, P.G. & Pensions Department of Personnel & Training New Delhi Dated 01.07.1998 OFFICE MEMORANDUM Subject : Relaxations and concessions for SCs and STs clarification regarding.
The undersigned is directed to refer to this Department's O.M.No.36012/13/88-Estt.(SCT) dated May 22, 1989 and to clarify that the instructions contained in the C.M. apply in all types of direct recruitment whether by written test alone or written test followed by interview or by interview alone.
2. O.M. dated May 22, 1989 referred to above and the O.M.No.36012/2/96-ESTT(RES) dated July 2, 1997 provide that in cases of direct recruitment, the SC/ST/OBC candidates who are selected on their own merit will not be adjusted against reserved vacancies.
3. In this connection, it is clarified that only such SC/ST/OBC candidates who are selected on the same standard as applied to general candidates shall not be adjusted against reserved vacancies. In other words, when a relaxed standard is applied in selecting an SC/ST/OBC candidates for example in the age limit, experience qualification, permitted number of chances in written examination, extended zone of consideration larger then what is provided for general category candidates etc. the SC/ST/OBC candidates are to be counted against reserved vacancies. Such candidates would be deemed as unavailable for consideration against unreserved vacancies.
Not illegible (J. Kumar) Under Secretary to the Govt. of India"
4. From a bare reading of the said memorandum, which is by nature a clarification, it appears that SC/ST/OBC candidates who are selected on the same standard as applied to general candidates shall not be adjusted against reserved vacancies. In other words, when a relaxed standard is applied in selecting an SC/ST/OBC candidates for example, in the age limit, experience qualification, permitted number of chances in written examination, extended zone of consideration-larger then what is provided for general category candidates etc. the SC/ST/OBC candidates are to be counted against reserved vacancies alone. Such candidates Page 7 of 13 would be deemed as unavailable for consideration against unreserved vacancies.
5. Mr. Majumder, learned C.G.C. has submitted that the stipulation made in the employment notice dated 24.01.2015 as issued by the Staff Selection Commission has been borrowed from the said memorandum and as such, the non-consideration was justified and this court may consider this aspects of the matter, as the unequals cannot be treated equally because certain relaxation was granted in favour of the special category candidates and therefore, they cannot be treated at par with the unreserved category where such relaxations were not available. In this regard, Mr. Majumder, learned C.G.C. has also relied on a decision of the apex court in P.U. Joshi and Others versus Accountant General, Ahmedabad and Others reported on (2003) 2 SCC 632 where the apex court had occasion to observe as under :
"We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substruction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever Page 8 of 13 the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service."
6. The question that had fallen for consideration before the apex court particularly as in the case, referred by Mr. B. Majumder, learned C.G.C. is remote to the question that is relevant in the present context and that manifest. Mr. Majumder, learned C.G.C. has pressed this decision for the purpose that since the executive has the exclusive domain of passing the necessary orders relating the procedure, the said memorandum dated 01.07.1998 [Annexure-4 to the petition] cannot be challenged by the petitioner and therefore this will be binding on the petitioner.
7. Mr. Majumder, learned C.G.C. has also referred a decision of the apex court in Deepa E.V. versus Union of India and Others [the judgment dated 06.04.2017 delivered in Civil Appeal No.3609 of 2017] where the apex court has reiterated the same law. However, in that decision, the apex court has observed as follows :
"In this connection, it is clarified that only such SC/ST/OBC candidates who are selected on the same standards as applied to general candidates shall not be adjusted against reserved vacancies. In other words, when a relaxed standard is applied in selecting an SC/ST/OBC candidates, for example in the age-limit, experience, qualification, permitted number of chances in written examination, extended zone of consideration larger than what is provided for general category candidates, etc., the SC/ST/OBC candidates are to be counted against reserved vacancies. Such candidates would be deemed as unavailable for consideration against unreserved vacancies."
8. The said observation was also made similar to the same memorandum. In the said decision, the apex court has also observed as under :
Page 9 of 13
"8. Learned counsel for the appellant mainly relied upon the judgment of this Court in Jitendra Kumar Singh and Another v. State of Uttar Pradesh and Others, reported in (2010) 3 SCC 119, which deals with the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and Government order dated 25.3.1994. On a perusal of the above judgment, we find that there is no express bar in the said U.P. Act for the candidates of SC/ST/OBC being considered for the posts under General Category. In such facts and circumstances of the said case, this Court has taken the view that the relaxation granted to the reserved category candidates will operate a a level playing field. In the light of the express bar provided under the proceedings dated 1.7.1998 the principle laid down in Jitendra Kumar Singh (supra) cannot be applied to the case in hand.
9. Learned senior counsel appearing for the respondents has also drawn our attention to paragraph Nos.65 and 72 in Jitendra Kumar Singh (supra) to contend that principle in Jitendra Kumar Singh (supra) are in the context of interpretation of U.P. Act 1994 and in the particular factual situation of the said case. Paragraphs 65 and 72, read as under:-
"65. In any event the entire issue in the present appeals need not be decided on the general principles of law laid down in various judgments as noticed above. In these matters, we are concerned with the interpretation of the 1994 Act, the Instructions dated 25.3.1994 and the G.O. dated 26.2.1999. The controversy herein centres around the limited issue as to whether an OBC who has applied exercising his option as a reserved category candidate, thus becoming eligible to be considered against a reserved vacancy, can also be considered against an unreserved vacancy if he/she secures more marks than the last candidate in the general category.
72. Soon after the enforcement of the 1994 Act the Government issued instructions dated 25.3.1994 on the subject of reservation for Scheduled Castes, Scheduled Tribes and other backward groups in the Uttar Pradesh Public Services. These instructions, inter alia, provide as under:-
"4. If any person belonging to reserved categories is selected on the basis of merits in open competition along with general category candidates, then he will not be adjusted towards reserved category, that is, he shall be deemed to have been adjusted against the unreserved vacancies. It shall be immaterial that he has availed any facility or relaxation (like relaxation in age limit) available to reserved category."
From the above it becomes quite apparent that the relaxation in age limit is merely to enable the reserved category candidate to compete with the general category candidate, all other things being equal. The State has not treated the relaxation in age Page 10 of 13 and fee as relaxation in the standard for selection, based on the merit of the candidate in the selection test i.e. Main Written Test followed by Interview. Therefore, such relaxations cannot deprive a reserved category candidate of the right to be considered as a general category candidate on the basis of merit in the competitive examination. Sub-section (2) of Section 8 further provides that Government Orders in force on the commencement of the Act in respect of the concessions and relaxations including relaxation in upper age limit which are not inconsistent with the Act continue to be applicable till they are modified or revoked."
But dint of the said memorandum dated 01.07.1998, as referred, the challenge was thrown in the appeal, but that was not accepted by the apex court as the challenged not made before the respective high courts.
9. From the other side, Ms. R. Purakayastha, learned counsel appearing for the writ petitioner-respondent has submitted that neither the memorandum dated 01.07.1998 nor the decision of the apex court in Deepa E.V. (supra) would be applicable in the present context, inasmuch as in Clause-10 of the Employment notice dated 24.01.2015 [Annexure-A to the review petition] has categorically provided as under :
"Provided that SC, ST and OBC candidates, who are selected on their own merit without relaxed standards will not be adjusted against the reserved share of vacancies. Such SC, ST and OBC candidates will be accommodated against the general/unreserved vacancies as per their position in the overall Merit List. The reserved vacancies will be filled up separately from amongst the eligible SCs, STs, and OBCs, candidates which will, thus, comprise of SC, ST and OBC candidates who are lower in merit than the last general candidate on merit list of unreserved category but otherwise found suitable for appointment by relaxed standard."
10. According to Ms. R. Purakayastha, learned counsel that even there are some exceptions noted, but those exclusions cannot have any force in view of Article 14 of the Constitution of India and for this purpose she has strenuously argued before this court to press the doctrine of Maxim expressio unius est exclusion alterius (express mention of one thing excludes others) and in this Page 11 of 13 regard she has referred a decision of the apex court in Ramdev Food Products (P) Ltd. versus State of Gujarat reported in (2015) 6 SCC 439. According to her, the rule of interpretation based on Maxim expressio unius est exclusion alterius has been approved in the decision rendered by the court of appeal in Dean versus Wiesengrund : [1955] 2 QB 120. The apex court has considered the said Maxim and held that after all it is no more than an aid to construction and has little, if any, weight where it is possible to account for 'inclusio unius' on grounds other than intention to effect 'exclusio alterius'. Thereafter, the court had referred the following passage from the case of Colquhoun v. Brooks: [1888] 21 QBD 52 wherein the Court had recorded its approval :
""... 'The maxim "expressio unius est exclusio alterius" has been pressed upon us. I agree with what is said in the court below by Wills, J. about this maxim. It is often a valuable servant, but a dangerous master to follow in the construction of statutes or documents. The exclusio is often the result of inadvertence or accident, and the maxim ought not to be applied, when its application, having regard to the subject-matter to which it is to be applied, leads to inconsistency or injustice.' In my opinion, the application of the maxim here would lead to inconsistency and injustice, and would make Section 14(1) of the Act of 1920 uncertain and capricious in its operation."
20. The aforesaid maxim was referred to by this Court in the case of CCE v. National Tobacco Co. of India Ltd. [(1972) 2 SCC 560]. The Court in that case considered the question whether there was or was not an implied power to hold an enquiry in the circumstances of the case in view of the provisions of Section 4 of the Central Excise Act read with Rule 10-A of the Central Excise Rules and referred to the aforesaid passage "the maxim is often a valuable servant, but a dangerous master ..." and held that the rule is subservient to the basic principle that courts must endeavour to ascertain the legislative intent and purpose, and then adopt a rule of construction which effectuates rather than one that may defeat these. Moreover, the rule of prohibition by necessary implication could be applied only where a specified procedure is laid down for the performance of a duty. In the case of Parbhani Transport Coop. Society Ltd. v. Regional Transport Authority [AIR Page 12 of 13 1960 SC 801 : (1960) 3 SCR 177] this Court observed that the maxim "expressio unius est exclusio alterius" is a maxim for ascertaining the intention of the legislature and where the statutory language is plain and the meaning clear, there is no scope for applying. Further, in Harish Chandra Bajpai v. Triloki Singh [AIR 1957 SC 444 : 1957 SCR 370, 389] SCR at p. 389 the Court referred to the following passage from Maxwell on Interpretation of Statutes, 10th Edn., pp. 316-317:
"Provisions sometimes found in statutes, enacting imperfectly or for particular cases only that which was already and more widely the law, have occasionally furnished ground for the contention that an intention to alter the general law was to be inferred from the partial or limited enactment, resting on the maxim expressio unius, exclusio alterius. But that maxim is inapplicable in such cases. The only inference which a court can draw from such superfluous provisions (which generally find a place in Acts to meet unfounded objections and idle doubts), is that the legislature was either ignorant or unmindful of the real state of the law, or that it acted under the influence of excessive caution."
Even the submission of Ms. Purakayastha, learned counsel for the respondents has been recorded elaborately but this court is constrained to observe that we are not concerned with interpretation of the statutory provision. The doctrine ambiguously holds that when there is a dominant provision of inclusion, the exclusion cannot be given over-emphasis.
11. In this case, this court is firstly concerned with whether the decision is required to be revisited on the basis of the ground as cited in this petition. In the impugned judgment, this court had considered the decision of Jitendra Kumar Singh and Another versus State of Uttar Pradesh and Others reported in (2010) 3 SCC 119 to appreciate the challenge in the writ petition. In Jitendra Kumar Singh(supra) the apex court has laid down the fundamental principles how to operate in such complex situation or how to operate the reservation principle so far the UR and the reserve category candidates are concerned, when the reserve category candidates secured more marks than Page 13 of 13 the last UR category candidate who has been recruited. The relevant passage has also been reproduced in the said judgment. However, at the cost of the repetition, the same passage is reproduced again. It has been clearly culled out by the apex court that the candidates who have participated in the written examination, it is immaterial as to which category the candidates belong. All the candidates are to be declared suitable as they by merit has crossed the bench mark in the preliminary test and the physical test. It is, thereafter, that successful candidates had been permitted to participate in the open competition. In this case also even though there was a process which was declared, but in view of the law declared by the apex court and in view of Article 14 of the Constitution of India, this court is bound to hold that those reserved category candidates were found occupying the higher merit petition vis-a-vis the lass person/persons who have been recruited, they have right to claim recruit against UR vacancies based on their comparative merit. Moreover, the relaxation to participate cannot under Article 14 of the Constitution of India may not be treated as a stumble block for the reserved category candidates when they performed well and occupied a better merit position cannot be excluded by an executive fiat.
Therefore, this court does not find any merit in the review petitions and accordingly, those are dismissed.
No costs.
JUDGE Sabyasachi B