Tripura High Court
Sri Sudip Kumar Debnath vs The State Of Tripura & Others on 15 March, 2021
Equivalent citations: AIRONLINE 2021 TRI 276
Author: Akil Kureshi
Bench: Akil Kureshi, S. G. Chattopadhyay
Page - 1 of 18
HIGH COURT OF TRIPURA
AGARTALA
W.P(C) No.119/2020
1. Sri Sudip Kumar Debnath.
S/o- Lt. Sushil Chandra Debnath, Resident of Vill- Nutan
Nagar, Co- Operative, PO- Nutan Nagar (Airport) PS -
Airport , Dist - West Tripura, PIN - 799009
2. Sri Anjan Deb.
S/o - Sri Haradhan Deb, Resident of Vill - West Bhubanban
, PO - West Bhubanban, PS- West Agartala, Dist. West
Tripura, PIN - 799002.
3. Sri Ajit Bin.
S/o - Lt. Mahadeb Bin, Resident of Dighalia, PO and PS -
Airport, Dist- West Tripura, PIN- 799009
4. Sri Basanta Sarkar.
S/o. - Lt. Bani Kanta Sarkar, Resident of Vill. - South
Indranagar , PO- Indranagar, P.S- N.C.C, Dist- West
Tripura, PIN - 799006
5. Sri Biswajit Banik.
S/o - Sri Gopal Banik, Resident of North Badharghat, PO-
A.D.Nagar PS- A. D. Nagar, Near Unnayan Sangha, Dist -
West Tripura, PIN - 799003
6. Sri Dulal Das.
S/o Sri Jahar Lal Das, Resident of Vill - East Pratapgarh,
PO - East Pratapgarh, PS - East Agartala, Dist- West
Tripura, PIN - 799004
7. Sri Amardip Acharjee.
S/o - Sri Dilip Acharjee, Resident of Vill - Ganiamara PO-
Nehalchandranagar, PS - Bishalgarh, Dist - Sepahijala,
Tripura, PIN - 799102
8. Sri Amal Sarkar.
S/o - Lt. Kalidhan Sarkar Resident of Vill- West Durgapur
PO - Ishanchandranagar, PS- Amtali Dist - West Tripura,
PIN - 799003
............... Petitioner(s).
Vrs.
1. The State of Tripura.
To be represented by the Commissioner / Secretary,
Department of Education, Government of Tripura, Agartala.
PO- Agartala, West Tripura, District-Tripura (W)
2. The Director of School Education
Government of Tripura, P.O - Agartala, Dist. - West Tripura
3. Sri Mithan Dey
S/o - Sri Uday Dey, Resident of Vill and PO - Kamalnagar
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4. Md. Abul Basharzia Uddin
S/o - Musadar Ali. Resident of Vill and PO - Tillgaon,
Kailashahar, Dist - Unakoti Tripura
5. Sri Suman Debnath
S/o - Sri Anil Chandra Debnath. Resident of Vill-
Niharnagar, PO - Anandapur.
6. Sri Bidhan Sinha
S/o - Baidya Kanta Sinha. Resident of Vill . and PO -
Kumarghat
7. Sri Saumabrata Chakraborty
S/o of Sri Subrata Chakrabory. Resident of Vill and PO -
Gokulpur, Udaipur, Dist- Gomati Tripura, PIN- 799114
8. Sri Debasish De
S/o Sri Ashutosh De, Resident of Vill- Kaulikura, PO -
Sonamukhi, Kailshahar, Dist - North Tripura, PIN - 799280
9. Smt. Chaitali Karmakar (Majumder)
W/o Sri Debabrata Majumder , R/o Vill. and P.O - Nogaon,
Khrishnagar, Agartala, Dist. - West Tripura
10. Sri Sujit Debnath
S/o Lt. Madhusudhan Debnath Resident of Vill. And P.O -
East Nalchar, Sonamura, Dist - Sepahijala Tripura PIN -
799115
11. Sri Uttam Paul
S/o. - Sri Mantu Paul Resident of Vill and PO - West
Malbasha PO - Amarpur, Dist.- South Tripura, PIN -
799101.
12. Sri Atanu Roy
S/o. Sri Nripendra Kumar Roy, Resident of East Agartala,
PS - East Agartala, Dist - West Tripura
13. Sri Chinmoy Chakraborty
S/o - Sri Shibabrata Chakraborty Resident of Vill-
Kalachand Kobrapra, PO - Birendranagar, PS - Jirania , Dist
- West Tripura.
14. Sri Debasish Nag
S/o - Sri Dolan Raj Nag. Resident of Vill and PS, PS -
Amtali, Dist - West Tripura
............ Respondent(s).
W.P(C) No.620/2020
1. Mangal Kanya Kalai.
W/o Amar Debbarma, Vill and P.O- Laljuri P.S. Fatikroy,
Unukuti, Tripura.
2. Joseph Ranglong Halam.
S/o Ditluomanik Halam, Vill and PO- Noagang, PS.
Panisagar, North Tripura, Tripura.
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3. Amar Debbarma.
S/o Lt. Jiban Chandra Debbarma Vill- Rajkandi, P.O.
Ganganagar, PS- Fatikroy, Unakoti, Tripura.
4. Narayan Debnath.
S/o Lt Brajabasi Debnath, Vill and PO- Deocherra P.S
Panisagar, North Tripura,Tripura
5. Champa Rani Debbarma.
W/o Marjit Debbarma Vill- Mariapara P.O- Bara Maidan
Bazar Kalyanpur Teliamura, Tripura.
6. Subodh Chandra Nama.
S/o Kshirod Chandra Nama, Vill and P.O- Ichai Lalcherra
Dharmanagar North Tripura, Tripura.
7. Debdulal Das.
S/o Lt. Dilip Kumar Das, Vill and PO- Panisagar Panchayat
P.S- Panisagar North Tripura, Tripura.
8. Lutpuia Darlong.
S/o Chongkhamdinga Darlong Vill Muraia Bari P.O
Deoracherra Kailashahar, Unakoti, Tripura.
9. Ajit Paul.
S/o Gajendra Paul Vill and PO Kadamtala North Tripura,
Tripura.
10. Biswajit Debbarma.
S/o Lt. Narendra Debbarma Vill- Rajkandi P.O-Ganganagar
PS Fatikroy Kumarghat, Tripura.
11. Tarpan Debbarma.
S/o Lt. Kripendra Debbarma Vill- Sadhurgon P.O-
Fatikcherra, P.S- Fatikroy, Kumarghat Unakuti Tripura.
12. Jhannamuni Debbarma.
S/o Harendra Debbarma Vill and PO- Rajkandi P.S-
Fatikroy Tripura.
13. Debasish Dey.
S/o Lt. Rajedra Kr. Dey Vill and P.O- Kameshwar (West)
P.S- Dharmanagar, North Tripura, Tripura.
14. Tutu Mog.
S/o Are Mog Vill- Kachimcherra PO- Kulai Bazar,
Ambassa, Dhalai, Tripura.
15. Sima Rani Shome.
D/o Sudhan Shome, R/o Vill and PO Bilthai, PS- Panisagar,
North Tripura, Tripura.
16. Archana Malakar.
D/o Nalini Mohan Malakar Vill- Kshudra Kandi, PO-
Uptakhali Tripura.
............... Petitioner(s).
Vrs.
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1. The State of Tripura.
Represented by the Chief Secretary to the Government of
Tripura, Sachivalaya, District- Agartala, West Tripura,
Tripura.
2. The Principal Secretary.
Government of Tripura, Education Department, Sachivalaya
NIT Quarters, P.O- Birendra Nagar Agartala, District- West
Tripura, Tripura.
3. The Additional Secretary.
Government of Tripura , Education Department (School)
Sachivalaya, Agartala Kunjaban Officers Quarters, P.O-
Kunjaban, Agartala District- West Tripura, Tripura.
4. The Directorate of Elementary Education.
Government of Tripura, Agartala, Tripura.
............ Respondent(s).
BEFORE
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY
In W.P(C) No. 119/2020.
For Petitioner(s) : Mr. Sanjiv Sen, Sr. Advocate.
Ms. S. Deb (Gupta), Advocate.
For Respondent(s) : Mr. D. Bhattacharjee, Govt. Advocate.
In W.P(C) No. 620/2020.
For Petitioner(s) : Ms. S. Debbarma, Advocate.
Mr. P. Majumder, Advocate.
For Respondent(s) : Mr. D. Bhattacharjee, Govt. Advocate.
Date of hearing and
Judgment & Order : 15th March, 2021.
Whether fit for reporting : NO
JUDGMENT AND ORDER(Oral)
(Akil Kureshi, CJ)
These petitions with minor differences, arise in similar
background. Writ Petition(C) No.119 of 2020 is filed by eight petitioners who
were appointed as Graduate Teachers by the State Government for its schools
pursuant to the recruitment process initiated under advertisement dated
23.09.2009. Large number of under graduate, graduate and post graduate
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teachers were selected and appointed pursuant to the said advertisement. Several
petitions were filed by unsuccessful candidates. The Single Judge did not disturb
the appointments but issued directions to the State Government to form a
committee to examine the issues of irregularities in the selection. The State
Government as well as the petitioners had filed writ appeals before the High
Court. All these appeals were consolidated and disposed of by a judgment dated
07.05.2014 in case of Tanmoy Nath and Others Vrs. State of Tripura and
Others; reported in (2014) 2 TLR 731. The High Court held that the new
employment policy formulated by the State Government under the notification
dated 30th August, 2003 was defective and, therefore, the appointments of the
teachers which were made pursuant the said policy were tainted by
irregularities. All the appointments were set aside. The State Government was
directed to undertake fresh selection. While doing so, the Court gave two
relaxations. Firstly, so that the education of the children studying in the
respective schools does not suffer, the State Government was given time for
completing the fresh selections and till then, the teachers would continue in the
same position. Second relaxation was that the concerned teachers would have
age relaxation for the new recruitment process. Entire issue was carried in appeal
before the Supreme Court by the State Government. After initially staying the
judgment of the High Court in case of Tanmoy Nath, the Supreme Court
dismissed the appeal in the year 2017. Thereafter extensions were granted for
completion of the fresh selections and for termination of the existing teachers.
Finally these extensions also ran out and large number of teachers who did not
succeed in getting selected in the selection processes which were undertaken in
the interregnum; were terminated. The petitioners of WP(C) No. 119/2020 are
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those teachers who faced such terminations. Their grievance is twofold. Firstly,
they point out that they were never sent for in-service training for completion of
D.El.Ed course when large numbers of similarly situated science teachers were
sponsored by the Government. They point out that these science teachers who
were also recruited in terms of the said employment policy dated 30th August,
2003 and some of whom are shown as respondents No. 3 to 6 by way of citing
examples though there are large number of other such similarly situated science
teachers; have not been terminated. According to the petitioners, this is a gross
case of discrimination perpetuated by the State Government. In this context
counsel for the petitioner had also argued that none of these petitioners were
parties in the entire litigation in case of Tanmoy Nath(supra).
[2] Case of the petitioners of W.P(C) No.620/2020 is substantially
similar. They were also recruited as teachers in Government schools pursuant to
the recruitment advertisement issued on 23.09.2009. They were also not made
parties in the Tanmoy Nath cases. They have also been terminated on account of
the judgment of the Division Bench as confirmed by the Supreme Court. They
point out that they were engaged before the requirement of possessing D.El.Ed
course pass for a qualified teacher was introduced by NCTE and in any case they
all have obtained such certificates within the extended time permitted for such
purpose.
[3] Learned Advocate for the petitioners has drawn our attention to the
judgment of this Court in case of Tanmoy Nath(supra) in which one of the cases
involved was WP(C) No.537/2012 filed by one Amzad Hussain Vrs. State of
Tripura and the Director of School Education. In this petition, the present
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respondents No.3 to 6 of W.P(C)No.119/2020 were shown as respondents No.3
to 6 therein. Our attention was drawn to the contents of the said W.P(C) No.
537/2012 in which appointments of the said respondents as science teachers
were challenged by the petitioner Amzad Hussain who had also applied for the
same post pursuant to an advertisement issued by the State Government in the
year 2010 and selection process for which was undertaken shortly thereafter
which had culminated into appointments of the said respondents as Assistant
Teacher (Science) by the State Government.
[4] On the basis of such materials, counsel for the petitioners had
raised following contentions:
(i) The petitioners of these petitions were not joined as
respondents in Tanmoy Nath batch of cases. Without hearing them
judgment was delivered by the High Court declaring their
appointments as illegal and which eventually led to their
terminations.
(ii) The State Government has adopted pick and choose policy.
Respondents No.3 to 6 who were science teachers, have not been
terminated though their appointments were also challenged in one
of the petitions decided by the High Court in Tanmoy Nath case. It
was argued that their selections were also based on the same
recruitment policy dated 30th August, 2003.
(iii) It was lastly contended that the petitioners were never given
an opportunity to obtain the qualification of D.EL.Ed certificate
whereas the respondents No.3 to 6 were sponsored by the State
Government so that they could obtain such certificates.
Page - 8 of 18
[5] As against this, learned Govt. Advocate Sri D. Bhattacharjee
opposed the petitions contending that the issues which these petitioners are
seeking to raise are squarely covered by the judgment of this Court in case of
Tanmoy Nath(supra) and subsequent orders passed by different benches. He has
drawn our attention to such orders to which reference would be made at a later
stage.
[6] Having heard learned counsel for the parties and having perused
documents on record, according to us following situation emerges:
(a) As noted, in case of Tanmoy Nath(supra), the Division
Bench considered the correctness of the selections of under graduate, graduate
and post graduate teachers in Government schools pursuant to recruitment
advertisement issued on 23.09.2009. The High Court noticed that selections
were made on the basis of new employment policy framed by the Government
on 30th August, 2003. The High Court found that such policy was
unconstitutional and as a result, the selections made pursuant to the said policy
cannot survive the legal scrutiny. Directions were therefore, issued for
termination of all such teachers but the Government was granted time to
complete the fresh selections so that the education of the school children does
not suffer. While the High Court was issuing such directions, it was also
conscious that the new recruitment policy would be the basis for large number of
other selections and appointments in Government and not only of teachers.
Suitable observations were therefore, made to confine the applicability and
damage of the judgment in case of Tanmoy Nath. It was clarified that (i) such
directions would cover only to those selections which were in challenge before
the Court and (ii) it would be prospective.
Page - 9 of 18
(b) As noted, the Government challenged the judgment in case
of Tanmoy Nath before the Supreme Court. The Supreme Court initially granted
stay against the implementation but later on dismissed the appeals. While doing
so, extensions were granted for completion of fresh selections. Last extension
was up to 31st March, 2020.
(c) First major issue that came up before this Court as a fall out
of the judgment in case of Tanmoy Nath(Supra) was in case of Bijoy Krishna
Saha & Others Vrs. The State of Tripura and Others [WP(C) No.1040/2019]
and connected petitions in which several petitioners had raised the issue of not
been joined as respondents when the High Court decided the case in Tanmoy
Nath. The Division Bench of this Court disposed of the bunch of petitions by the
judgment dated 03.10.2019. Following observations are relevant:
"15. In the aforesaid factual narration, we proceed to decide the
present petitions.
Findings:
16. The core issue which arises for consideration is as to whether
the instant writ petitioner(s) can be allowed to reopen the issues
decided by this Court in Tanmay Nath (supra), as affirmed by the Apex
Court vide order dated 29.03.2017 on the ground that; (a) this
termination is illegal on account of violation of principles of natural
justice, inasmuch as no notice stood issued to them, nor were they
impleaded as parties to such proceedings; (b) the services of the
petitioners stand protected by and in terms of the directions contained
in para-127 of the very judgment; (c) whether the impugned
memorandum extending the period of services on ad-hoc basis and
rejecting the representations should be quashed or not.
17. In WP(C) No.51 of 2014, titled as Tanmoy Nath (supra), the
Court vide order dated 06.02.2014 had directed issuance of a public
notice since large number of parties (4000) were likely to be affected.
Pursuant thereto, notices dated 21.02.2014 were issued in two
newspapers namely, Dainik Sambad and Daily Desher Katha
respectively. During the pendency of the hearing, we had called for the
record of WP(C) No.208 of 2010, titled as Shri Sudhan Majumder &
others vs. The State of Tripura & others, also disposed of with Tanmoy
Nath (supra), and noticed that public notice dated 08.12.2010 was
issued in the daily newspaper namely "Syandan Patrika" informing the
general public of the pendency of the petitions and the Court dealing
with the matters with regard to the appointment of graduate teachers.
Also there is an order dated 24.11.2010 in C.M. Appl. No.223/2010 in
c/w WP(C) No.208 of 2010 to such an effect.
18. As such, at this stage, instant writ petitioners cannot be
allowed to reopen the entire issue, purely on the ground of their non-
Page - 10 of 18
impleadment as parties or non-issuance of notice to them. Who are the
petitioners? Are they illiterate rustic villagers, hailing from the most
deprived strata of the society having no access to justice, also not
knowing its procedures? Most certainly not. They are educated
Government employees posted at several places within the State. Can it
be said that they were not aware of the proceedings laying challenge to
the appointments made with regard to more than 10,000 posts of
different categories of teachers appointed by the Government, pursuant
to the advertisement issued in the year 2002, 2006 and 2009? The
answer obviously lies in the negative and the reason is two-fold. The
pendency of the original writ petitions was widely circulated, as we are
informed, throughout the State, both in the print and electronic media.
So also was its outcome made known. It sent ripples throughout the
State. Not only that, prior to rendering of the judgment in Tanmay Nath
(supra), this Court had directed issuance of notice to be published in the
newspaper, which was also done. To contend that such directions or
notice were confined only with respect to certain category of teachers
and as such, cannot be construed to be a notice qua other categories is
not acceptable. Teachers in Tripura are a close-knit fraternity. They
also have a union who has been pursuing the matter at different levels.
It is true that in a service matter, principles laid down under Order I
Rule 8 of CPC may not apply, but then this Court was dealing with a
case where as it stood observed, that the action of the Government was
"a cruel joke on the people of Tripura". The entire selection process
was held to be absolutely arbitrary, capricious and whimsical. It
smacked of nothing less than nepotism and favourism. Prudently, the
writ Court thought it fit to issue a general notice and not implead all of
the 10,323 selected candidates as party respondents, some of whom, in
any case, were before this Court. In a representative capacity, the
petitions were considered, argued and decided.
19. Significantly, none of the instant petitioners laid any challenge
to the judgment rendered by this Court in Tanmay Nath (supra).
Neither did they seek review, nor did they file any appeal. Why so?
remains a shrouded secret. With the dismissal of the Special Leave
Petition on 29.03.2017, and their appointment conclusively found to be
illegal, they ought to have returned home, but for the extensions
granted by the Apex Court vide orders dated 14.12.2017 and
01.11.2018 (reproduced supra) [paras-9 & 10]. Even at that point in
time, they did not express their concern or raise any protest of violation
of principles of natural justice; the issue of their non-impleadment or of
the order passed behind their back. It is not that they were sitting in a
penance or meditating in the Himalayas, totally cut off from the
worldly affairs. Obviously they were waiting in the wings and only
when they fell out favour of a lady fortune, inasmuch as time extended
by the Apex Court is expiring, and otherwise not having qualified, they
took steps, speculative in nature, of having the entire issue reopened by
challenging the judgment of this Court in Tanmay Nath (supra). We
find their such act and conduct to be absolutely despicable. By raising
one false plea after the other, somehow they are just trying to cling to
the post, to which they were illegally appointed and thereby scuttle the
due process of fresh selection and appointment wrongfully depriving
the eligible candidates.
20. Contention that in the absence of the instant petitioners
impleaded as parties in the petitions subject matter of Tanmoy Nath
(supra), this Court should direct continuance of their appointment, more
so, in the light of ratio laid down in Udit Narain Singh Malpaharia
(supra), A.M.S. Sushanth (supra), A. Arthur Jeen (supra), K.H. Siraj
(supra), Rashmi Mishra (supra), Sadananda Halo (supra), Suresh
(supra), Tridip Kumar Dingal (supra), Poonam (supra), Ranjan Kumar
(supra), Vijay Kumar Kaul (supra), and Jal Mahal Resorts (supra), is
absolutely fallacious. At this point in time, it is not open for the
respondents to take such a plea, more so when everyone was made
aware of the proceedings pending before this Court, by way of public
notice. In the cited decisions, what weighed was interest of an
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individual and not general public interest, in formulating a policy which
was held to be illegal so also appointments made thereunder.
21. We may only remind the petitioners of what stood observed
by the Apex Court in Dwarka Nath Sharma vs. Union of India &
others, 1989 Supp (2) SCC 225 (2 Judge Bench), though in the context
of preparation of a seniority list, but relevant herein. The relevant
portion reads as under:
"9. Strictly speaking, Janardhana's decision may not have
the effect of res Judicata for the present litigation, but we do
not think in a dispute of the present dimension where
hundreds of employees are concerned, it would be proper
for the employees to litigate over the same issues from time
to time. If it would be open to members of the service from
time to time to raise disputes of the same nature and
introduce uncertainty into the service, that would affect the
efficiency of the service and would be against public
interest. That also would call into jeopardy the guarantees of
public service and expose the officers into an atmosphere of
insecurity. A seniority list of a cadre should not be made the
subject matter of debate too often. We have, therefore, to
consider the claim of the appellant keeping these aspects in
view and referring to the conclusions reached in
Janardhana's case."
22. In fact, we find their stand to be self-contradictory. On one
hand, they lay challenge to the judgment quashing their appointments,
whereas on the other hand they seek protection thereunder by relying
upon para-127 (reproduced supra)."
(d) The question of not hearing several teachers who were
likely to be affected by the examination by the Court was thus decided in case of
Bijoy Krishna Saha & Others(supra).
(e) Thereafter in case of Santunu Bhattacharjee and others
Vrs. The State of Tripura and others [WP(c) No. 95/2021] and connected
petitions, the petitioners were terminated graduate/post graduate teachers. They
had challenged their terminations on the ground that Tonmay Nath case would
not cover their cases and their terminations brought by the State Government
were invalid. The Single Judge dismissed the writ petition by a judgment dated
26th February, 2021. Following observations are relevant.
"[9] The decision of this Court in case of Tanmoy Nath thus was
clear on its sweep and implications. Entire selections made by the State
Government pursuant to the advertisement issued on 23rd September,
2009 were set aside. This has been so stated by the Court on various
occasions as I have noted earlier. Very foundation of the selection
being a new recruitment policy which was declared unconstitutional,
the Court was persuaded to set aside all selections. It did not refer to
Page - 12 of 18
specific selections and appointments under challenge as is sought to be
canvassed before me by the counsel for the petitioners. It is undisputed
that the petitioners had also applied in response to the said
advertisement and were selected and appointed under the same exercise
which was scrutinized by the High Court and declared as illegal. The
observations of the Court in paragraph 127 of the judgment noted
earlier therefore must be viewed from this background. This paragraph
cannot be read in isolation as to limit the effect of the judgment in case
of Tanmoy Nath to only those specific selections which the original
petitioners might have challenged before the High Court. What in
paragraph 127 of the judgment the Division Bench had provided was
that the effect of the judgment would be limited to the selection of
teachers pursuant to the advertisement dated 23.09.2009 and not to any
other selections. This was necessary because the new recruitment
policy of the Government framed in the year 2003 may have been a
source of appointment of number of other Government posts. If the
decision of the Tanmoy Nath was utilized to reopen such appointments,
far reaching and widespread implications would be felt in
administration leading to chaotic situation. It was in this background
that the Court made its clarifications in paragraph 127 of the judgment.
[10] The fact that the petitioners were not parties in Tanmoy Nath
judgment and therefore the decision would not bind them, was perhaps
not even the argument of the counsel for the petitioners. However, such
contention was raised before the Division Bench in case of Partha
Debnath and others versus State of Tripura and others in WP(C)
No.1219 of 2019 and other connected petitions in which while rejecting
such contention the Division Bench had made following
observations.************"
(f) In case of Abul Bashar Zia Uddin and others Vrs. State of
Tripura and others in WP(C) No.797 of 2020, the petitioners were science
teachers. They were engaged pursuant to a public advertisement issued by the
Government of Tripura on 25.08.2010. Their selection was also based on the
new recruitment policy dated 30th August, 2003. They were served with notices
for termination, on the ground that by virtue of the judgment in case of Tanmoy
Nath their services were also liable to be terminated. They had challenged the
show cause notices. Their petition was allowed by the Division Bench by a
judgment dated 04.01.2021 and the show cause notices were quashed. Following
observations are relevant.
"[4] With this background, we may revert to facts of the case on
hand. As noted, undisputable position is that all the petitioners were
appointed as Science Teachers in response to an advertisement issued
by the Government of Tripura on 25th August, 2010. Actual
appointments were made in March, 2012. In Tanmoy Nath, the
Division Bench of this Court on an intra-Court appeal, had examined
the legality of large number of Teachers appointed by the Government
Page - 13 of 18
of Tripura in the schools. These appointments were made pursuant to
an advertisement issued on 23rd September, 2009. Prior to this
advertisement also, Government of Tripura had made two unsuccessful
attempts at filling up the posts of Teachers (other than Science
Teachers). First of such advertisements was issued on 29th October,
2002 under which vacancies of Graduate and Under Graduate Teachers
were advertised. No appointments were made pursuant to this
advertisement. Second advertisement was issued on 5th April, 2006
when old vacancies were re-advertised and fresh adjustments of
number of vacancies were made. No appointments in the second
attempt were also made. While, therefore, issuing third advertisement
on 23rd September 2009, the State gave two concessions. First, those
who had already applied in response to earlier two advertisements,
would not have to apply again and second, that such candidates would
have age relaxation. This third attempt culminated into large
appointments being issued by the State of Tripura. Some of the
unsuccessful candidates challenged the norms of selection before the
Single Judge. The Single Judge found certain anomalies in the selection
process and required the Government to constitute a high power
committee to review the selections. The Government as well as the
original petitioners filed appeals before the Division Bench. The
Division Bench in Tanmoy Nath case found that the new employment
guidelines issued by the Government on 30th August, 2003 suffered
from various defects. Resultantly, the Court was of the opinion that all
appointments of the teachers which were under challenge before the
Court, were required to be set aside. While doing so, in the interest of
the young children who would be studying in the Government schools,
time was granted to the Government to fill up these resultant vacancies
and till then, the existing teachers would continue the same posts.
The issue of number of other Government appointments being
made on the basis of the same employment policy of 30th August, 2003
also coming under the threat of being disturbed was considered by the
Court. In order to safeguard such appointments the Court made
following clarification:
"127. Since we have set aside the revised employment policy
which applies to a large category of posts and not merely to
teachers, we would like to make it clear that our judgment
shall be prospective in nature and shall not affect the
appointments already made unless the said appointments are
already under challenge before the Court on the ground that
the employment policy is illegal."
[5] The decision in case of Tanmoy Nath (supra) thus was
confined only to those teachers whose appointments were under
challenge before the Court. The appointments of the petitioners and
other similarly situated Science Teachers recruited pursuant to
advertisement dated 25th August, 2010 were nowhere under challenge
before the High Court in case of Tanmoy Nath.
[6] Even the Government has up till now viewed the situation
similarly. It may be recorded that in case of Sri Anjan Deb and Ors Vs.
State of Tripura and Ors. in WP(C) No.1110/2018, some of the
Government Teachers who were covered by the judgment of High
Court case in case of Tanmoy Nath, had approached the Court making
a grievance that they were not sent for in-service training when private
respondents who were Science Teachers similar to the present
petitioners, were sent for such training. In such petition, the stand of the
Government was that the petitioners therein were under termination by
virtue of the judgment of this Court in case of Tanmoy Nath and were
temporarily protected on account of extensions granted by the Supreme
Court whereas, the Science Teachers in Government schools were not
covered by the judgment of this Court in the case of Tanmoy Nath. The
Page - 14 of 18
Government had filed a detailed reply in the said petition in which it
was contended as under:
"9. That, in reply to the contentions made in paragraph 8 of
the Writ Petition, I state that the Respondent No.2 vide
Notification No.F.1.(1-48)-SE/E(NG)/2010 dated 25th
August, 2010 invited applications from the eligible Indian
Nationals and permanent residents of Tripura for 1450 posts of
Assistant Teacher, B.Sc.(Pure)-870 post and Assistant
Teacher, B.Sc.(Bio)-580 posts. In the said Notification,
qualification for the post of Assistant Teacher, B.Sc.(Pure)
was confined "Graduate in Science from a recognized
University (with Physics, Chemistry, Mathematics or
Statistics," and for the posts of Assistant Teacher, B.Sc.(Bio)
it was Graduate from a recognized University (with Zoology,
Botany, and Physiology). In the said notification dated 25th
August, 2010 it was also stated that the candidates who
applied in 2002, 2006 and 2009 for the post of Graduate
Teacher on fixed pay basis need not apply again for the said
1450 posts. However, they shall have to appear before a
Interview Board afresh to be constituted by the Department
subsequently. Total 6,784 applications were received for 1450
posts Assistant Teacher. Subsequently, the state Respondents
decided to fill up 1000 posts of Assistant Teacher out of 1450
posts. Accordingly, the Finance Department, Govt. of Tripura
gave concurrence for filling up of 1000 posts of Assistant
Teacher. The Council of Ministers in its meeting held on 7th
February, 2012 also approved the proposal of the Department
for filling up of 1000 posts only. Thereafter, the Respondent
No.2 appointed 1000 candidates to the post of Assistant
Teacher as per selection by the Interview Boards.
......................................................
13. That, in reply to the contentions made in paragraph 14 of the Writ Petition, I denied that the Hon'ble High Court in its judgment dated 07.05.2014 set aside the entire selection process of Assistant Teacher (Science), 2012. It is submitted that the Hon'ble High Court in its judgment dated 07.05.2014 has set aside the selection process of Post Graduate Teacher, Graduate Teacher and Under Graduate Teacher appointed in the year 2010 and 2013-14 only.
14. That, in reply to the contentions made in paragraph 16 to 20 of the Writ Petition, empathetically I denied that any discrimination has been made with the petitioners. It is submitted that the service of the petitioners have been terminated as per order of the Hon'ble Supreme Court since they were appointed in the year 2010. But the proforma respondents were not appointed in the year 2010 or 2013-14. Therefore, they are not come under the purview of the order dated 29.03.2017 of the Hon'ble Supreme Court of India and therefore, the petition of the petitioners are liable to be dismissed and rejected."
[7] One may also notice that this was one of the objections of the Government in case of Snehangshu Das and Ors(supra) wherein the petitioners were seeking the benefit of regular pay scales after completion of 5 years of service in fixed salary as Science Teachers. While opposing the prayers on various grounds the Government also tried to agitate that these Science Teachers also would be covered by the judgment of this Court in case of Tanmoy Nath(supra). This issue was considered by the Court in the said judgment in following manner:
" .....................................
Page - 15 of 18
16. I may deal with the Government's objection with respect to the nature of posts on which the petitioners are engaged last since this would require some detailed discussion. In the context of the judgment of this Court in case of Tanmoy Nath(supra), the Government's objection is not valid at all. It is undisputed that in the said litigation what was under
challenge was the recruitment and engagement of large number of undergraduate, graduate and postgraduate teachers which the Division Bench of this Court found wholly arbitrary and consequently set aside all such appointments. Only reprieve granted to the concerned teachers was of age relaxation for future recruitment processes. If they are selected during such recruitments, their past services would be protected. This judgment of this Court was confirmed by the Supreme Court. Only modification was the extension of time for filling up the posts and corresponding age relaxations. However, in the said litigation the appointments of the petitioners were never challenged and, therefore, never examined. Even if these petitioners were engaged by following the same Employment Policy of 2003 which the Court found objectionable in case of Tanmoy Nath(supra), their appointments cannot be treated as defective or impermissible in any manner. The Government never questioned such appointments. In fact, the Government had challenged the judgment of this Court in case of Tanmoy Nath(supra) and, therefore, had tried to save the appointments of the concerned teachers. Be that as it may, as far as the present petitioners are concerned, neither any private individual nor the Government at any stage has questioned the legality of their appointments. In any case, the Government cannot continue them in service but deny them regular wages by suggesting that their appointments were not legal.
17. One may also notice that some of these teachers were sent for training in IGNOU sponsored by the Government. Some other teachers, the teachers whose appointments were set aside by the High Court in Tanmoy Nath(supra), and were continued on ad hoc basis by virtue of interim orders passed by the Supreme Court, questioned these nominations by the Government by filing WP(C) No.1110 of 2018. According to these teachers there was parity between the petitioners and the respondents therein. In order to justify its action of nominating the concerned teachers to the exclusion of the petitioners therein, the Government in the reply filed in the said petition had stated as under:
..........................................
Thus, even the Government represented that the cases of these petitioners were not covered by the judgement in case of Tanmay Nath (supra). In view of this, the first objection of the Government in granting the regular pay scales to the petitioners is turned down."
[8] Once this issue was raised by the Government before the High Court and was also decided by the High Court, it was thereafter not permissible for the administration to issue a show cause notice which is based on the same issue. This is one more reason why the administration cannot be permitted to proceed with the show cause notices.
Under the circumstances, impugned show cause notices are set aside. Petition is allowed and disposed of accordingly. Pending application(s), if any, also stands disposed of."
Page - 16 of 18
(g) Thus, all the issues which the petitioners raise in these petitions, are covered and answered by earlier decisions of this Court. That apart, we have perused the judgment of this Court in case of Tanmoy Nath(Supra once again though it has been read and re-read on several occasions in the past. Entire controversy which was focused before the High Court was in relation to the selections and recruitments of thousands of under graduate, graduate and post graduate teachers by the Government pursuant to the advertisement dated 23.09.2009. In the judgment, the Court recorded that previously there were two failed attempts for filling up the vacancies. First advertisement was issued on 29.10.2002. Second advertisement was issued on 05.04.2006. However, no appointments were made pursuant to these advertisements. When, therefore, a fresh advertisement was issued on 23.09.2009 notifying thousands of vacancies for the posts of under graduate, graduate and post graduate teachers, two concessions were granted. First was that those who had already applied and if they are inclined to be considered, need not apply again and second, that in their cases there shall be suitable age relaxation as a onetime measure. This last attempt of selection pursuant to advertisement dated 23.09.2009 culminated and thousands appointments of under graduate, graduate and post graduate teachers being made by the Government. The High Court had gone deep into the nature of the selection, the new employment policy, its validity on the basis of constitutional principles as also the question of reservation. It was by way of culmination of such in-depth exercise that the High Court in case of Tanmoy Nath declared all such appointments as illegal and directed the State Government to terminate the appointees. As noted earlier, while doing so the High Court was acutely conscious of the fact that the new employment policy Page - 17 of 18 dated 23rd August, 2003 may have formed basis for number of selections and appointments that the Government might have issued in the meantime i.e. before and after the selection of teachers pursuant to the advertisement dated 23rd September, 2009. In this context, the High Court had made following observations:
"127. Since we have set aside the revised employment policy which applies to a large category of posts and not merely to teachers, we would like to make it clear that our judgment shall be prospective in nature and shall not affect the appointments already made unless the said appointments are already under challenge before the Court on the ground that the employment policy is illegal."
(h) It is true that one stray petition, WP(C) No.537/2012 out of the entire group of large number of petitions did involve challenge to the science teachers who were also appointed on the basis of the same recruitment policy. However, if one peruses the entire judgment of the High Court in case of Tanmoy Nath(supra), the focus solely was on ten thousand plus appointments made to the posts of under graduate, graduate and post graduate teachers pursuant to the advertisement dated 23.09.2009. One cannot pick an isolated petition out of context to hold that the entire selections and appointments of science teachers also which were not part of the said recruitment notification dated 23.09.2009 but were by way of culmination of entirely different selection process, must also stand nullified. All throughout the Government has also viewed the situation in this manner. More importantly, the question of disturbing these appointments years later when majority of these science teachers were not parties to the main litigation would also stare in our faces. We have noticed that in Tanmoy Nath case, large number of selected teachers were joined as respondents, there were public announcements that the High Court was examining the legality of such similar appointments, after which the decision Page - 18 of 18 was rendered by the High Court several years later which would imply that all those who were likely to be affected were in know of the matter. This principle would would fail in case of science teachers if out of the context we take one petition from the group of Tanmoy Nath judgment and hold that the intention of the Court was to nullify all such appointments as well.
(i) There is one more reason why the petitioners cannot succeed. They have not made any serious attempt to reopen the issues closed by the High Court in case of Tanmoy Nath which in any case they cannot, since it is a Division Bench judgment and therefore, binding on us and such judgment was unsuccessfully challenged before the Supreme Court. That being the position, the petitioners cannot claim negative equality by contending that if some of the teachers who may be fit by the ratio in case of Tanmoy Nath are not terminated and, therefore, terminations of the petitioners should be set aside. Article 14 of the Constitution does not recognize any such negative equality. [7] In the result, we find no merits in the petitions. Petitions are therefore, dismissed. Pending application(s), if any, also stands disposed of.
(S. G. CHATTOPADHYAY),J. (AKIL KURESHI),CJ. Dipankar