Tripura High Court
Ms. Jayeeta Paul vs The High Court Of Tripura on 18 September, 2018
Equivalent citations: AIRONLINE 2018 TRI 267
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HIGH COURT OF TRIPURA
AGARTALA
WP(C) NO.429/2018
Ms. Jayeeta Paul,
D/O Late Ashish Ranjan Paul,
C/O Mamata Deb(Paul),
Mohanpur, P.O. Kailashahar,
Unakoti, Tripura.
----Petitioner
Versus
1. The High Court of Tripura,
Represented by the Registrar General,
High Court of Tripura,
Khejurbagan, Agartala.
2. Registrar General,
High Court of Tripura,
Khejurbagan, Agartala.
3. Sri Suman Das,
S/O Sri Malin Chandra Das,
R/O Vill-North Badharghat(Subhas Palli),
P.O. A.D. Nagar, Agartala.
----Respondents
For Petitioner(s) : Mr. D.K. Biswas, Adv.
Mr. G.K. Nama, Adv.
For Respondent(s) : Mrs. P. Dhar, Adv.
Mr. R. Datta, Adv.
HON'BLE THE CHIEF JUSTICE MR. AJAY RASTOGI
HON'BLE MR. JUSTICE ARINDAM LODH
Judgment Reserved on : 11th September 2018
Date of Pronouncement : 18th September 2018
JUDGMENT
BY THE COURT( Per Hon'ble Mr. Justice Ajay Rastogi, C.J.) Instant petition has been filed by the petitioner who had participated in the process held for the post of Library Assistant was at one stage declared successful and offer of appointment was made but before order of appointment could be Page 2 of 10 issued offer of appointment was cancelled under order dt.02.05.2018 which is the subject matter of challenge in the instant petition.
2. The post of Library Assistant is categorized in Group-C (Non-Gazetted) and a part of Schedule-III has been substituted by the Amendment Rules 2015 under the High Court of Tripura Services(Appointment, Conditions of Service & Conduct) Rules 2014.
3. Three posts of Library Assistant have been sanctioned to be filled by open selection and the advertisement came to be published vide notification dt.04.02.2017 holding selection against three sanctioned posts of Library Assistant in terms of the procedure prescribed for open selection under the Rules 2014.
4. After the applications were received written examination was held on 10.09.2017 and out of 172 eligible candidates 92 candidates including the petitioner appeared in the written examination for the post of Library Assistant. The competent authority constituted the committee for evaluation of the answer scripts.
5. It may be noticed that out of three vacancies of Library Assistant two were reserved for open category and one for ST as per the 100-point roster in terms of the Tripura Scheduled Castes & Scheduled Tribes Reservations Act 1991 and 14 candidates including the petitioner were found eligible and called for viva voce test held on 02.02.2018 out of which 13 candidates appeared in Page 3 of 10 the viva voce test and the select list of the candidates on the basis of marks scored in the written examination and viva voce was uploaded by the respondents on 12.03.2018 in which the petitioner was shown at No.2 against the un-reserved vacancy and at the same time the reserved panel was also published(Annexure- R/II & R/III respectively).
6. In furtherance the offer of appointment was made to the petitioner on 12.03.2018, pursuant thereto the petitioner accepted the offer and tendered her resignation from National Institute of Technology, Agartala where she was working on contractual basis under the belief that she may join on the post of Library Assistant pursuant to the offer of appointment made but to her dismay offer of appointment was cancelled by the respondents vide order dt.02.05.2018 which is the subject matter of challenge in the instant petition.
7. Counsel for the petitioner submits that after the offer of appointment was made and accepted by the petitioner that becomes a concluded contract and that could not have been revoked after acceptance being prohibited u/Sec.5 of the Indian Contract Act 1872.
8. Counsel for the petitioner further submits that after the offer of appointment was made and accepted by the petitioner rule of the game cannot be changed by the respondents at later stage and this being a manifest error committed by the respondents in passing of the later order cancelling the letter of appointment of Page 4 of 10 the petitioner under order impugned dt.02.05.2018 is not only in violation of the principle of natural justice but also not sustainable in the eye of law and in support of submission placed reliance on the judgments of the Supreme Court reported in (2001) 10 SCC 51, Maharashtra State Road Transport Corpn. & Ors. vs. Rajendra Bhimrao Mandve & Ors. and (2008) 3 SCC 512, K. Manjusree vs. State of Andhra Pradesh & Anr.
9. Counter affidavit has been filed by the respondents and it has been averred that after the offer of appointment was made and acceptance was received it was brought to notice that the answer scripts of the candidates who had participated in the process there appears to be an error in tabulation of marks in the written examination and that stage it was decided to scrutinize the answer scripts of all the candidates who had participated in the written examination by a committee to be constituted for the purpose and based on the report furnished by the committee it transpired that Sri Suman Das in the original sheet obtained 60.5 marks but on re-tabulation he secured 62.5 and there was no change in the marks of the petitioner even after re-tabulation and accordingly the total marks of Suman Das became 78.5 whereas the marks of the present petitioner remain 77, and at the same time on re-tabulation of other candidates it further revealed that there was a change of the marks in respect of two other candidates.
Merit list of candidates on the basis of marks obtained in the written examination and viva voce:
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Marks obtained in Marks Total marks obtained
Sl. Name of the the written obtained in
No. candidates examination out of the viva
100. voce
BEFORE AFTER examinatio BEFORE AFTER
TABULATI TABUL n out of 25 TABULATI TABULATIO
ON ATION ON N
1 Smt. Jayanti 57 57 22 79 79
Chakraborty(UR)
2 Sri Suman 60.5 62.5 16 76.5 78.5
Das(UR)
3 Smt. Jayeeta 59 59 18 77 77
Paul(UR)
4 Smt. Khumtwisa 55.5 56.5 12 67.5 68.5
Tripura(ST)
10. Taking note thereof it was resolved to cancel the earlier select list dt.12.03.2018 and the fresh list of the selected candidates be published on the basis of marks obtained on re- tabulation in the written examination followed by viva voce test under order dt.02.05.2018 but as informed after the offer of appointment was made to the impleaded respondent Suman Das because of pending litigation no further action has been taken as yet.
11. Counsel for the respondents submits that merely on the basis of the offer of appointment no vested right has been conferred in favour of the petitioner and it was because of human error being committed in tabulation of marks and immediately after the error came to the notice of the authority immediate action was taken and after constituting a committee and taking their report on re-tabulation of the marks a revised select list came to be published and offer of appointment was accordingly made to the candidates who are being placed in order of merit Page 6 of 10 strictly on the basis of the marks secured by the candidates in the written examination and viva voce in accordance with the scheme of Rules 2014 and in support of submission placed reliance on the judgment of the Apex Court reported in (2010) 12 SCC 130, Ramesh Gajendra Jadhav vs. Secretary, S.G.S.P. Mandal & Ors.
12. We have heard counsel for the parties and with their assistance perused the material available on record.
13. The facts are not in dispute that the post of Library Assistant for the first time came to be substituted under the Amendment Rules 2015 under the High Court of Tripura Services(Appointment, Conditions of Service & Conduct) Rules 2014, annexed to Schedule III, categorized in Group-C(Non- Gazetted) with three sanctioned posts in the cadre to be filled by open selection and that came to be advertised by the respondents vide notification dt.04.02.2017 and all the eligible candidates appeared in the written examination followed with a viva voce examination and the list of the selected candidates was earlier notified on 12.03.2018 but when a human error was brought to notice in the marks awarded in the written examination of a candidate, immediately without any delay it was considered appropriate to make appropriate correction and accordingly a committee was constituted and as per the report of the committee and after re-tabulation of the marks in the written examination of Page 7 of 10 the candidates fresh list of the selected candidates in the order of merit came to be notified on 02.05.2018.
14. Indisputedly, Sri Suman Das who earlier secured 60.5 marks in the written examination on re-tabulation secured 62.5 and placed at No.2 in the order of merit in the open category relegating the merit position of the petitioner from 2nd to 3rd in the order of merit in the open category and it is not in dispute that after re-tabulation of the marks of the written examination, Smt. Jayanti Chakraborty secured 79(57+22) marks Sri Suman Das secured 78.5(62.5+16) marks and the petitioner Jayeeta Paul secured 77(59+18) marks and Smt. Khumtwisa Tripura(ST) secured 68.5 (56.5+12) marks who were placed in the order of merit published on 02.05.2018.
15. It is not disputed that earlier when the select list was published the petitioner's name was at No.2 in the order of merit in open category and accordingly the offer of appointment was made to her. It is also true that she was given offer of appointment on 12.03.2018 and she submitted her acceptance on 19.03.2018 but it was based on an apparent error in mathematical calculation.
16. In the examination process human error in absolute terms cannot be ruled out and if that was brought to the notice of the authority and after due diligence procedure has been followed and human error was rectified on re-tabulation of the marks obtained by the candidates in the written examination, certainly no Page 8 of 10 law prohibits in making appropriate correction but it is always expected that action has to be taken after adopting the due process prescribed under the law.
17. In the instant case, immediately after this fact was brought to notice that there appears to be a human error in tabulation of marks in the written examination immediately the authority referred the matter to the committee and after obtaining report on re-tabulation of the marks in the written examination it revealed that Suman Das secured higher marks in the written examination qua the present petitioner and to be placed higher in the order of merit on the basis of marks secured in the written examination followed by viva voce examination, certainly the right of fair consideration of a participant is a sine quo non in the open competition ordinarily is not to be defeated and element of human error in absolute terms cannot be ruled out but that in any manner should not cause prejudice to either to the participant who was never at fault and being an open competition overall merit of the candidates has to be respected and be given its due weightage and when it revealed that Suman Das secured higher marks in the written examination and viva voce test qua the petitioner, certainly the right which conferred in favour of Suman Das on securing higher marks than the petitioner indeed has a better and preferential claim to seek appointment in a competitive process against the vacancy of open category and this Court finds no error being committed in the decision making process adopted by the respondents in revising the select list before any indefeasible right Page 9 of 10 being conferred in favour of the candidate in the selection process held in reference to the advertisement dt.04.02.2017 and if there appears any element of human error in the process of selection or any irregularity that may not create any vested or indefeasible right in favour of the candidate and this what has been observed by the Apex Court in (2010) 12 SCC 130 is a case where the candidate was given appointment and thereafter revealed that there was an irregularity committed in offering appointment to the candidate and still the Apex Court was of the view that entry into service has to be a lawful entry and irregularity in any respect cannot create any vested right in favour of the employee who has been illegally appointed irrespective of the fact whether the fault in that regard lies with the employee or employer.
18. The submission of the petitioner's counsel that after the offer of appointment was made and the petitioner submitted her acceptance that becomes a concluded contract and could not have been revoked being in violation of Sec.5 of the Indian Contract Act is on the face of it fallacious, there was no concluded contract executed and mere offer of appointment and acceptance is not a concluded contract in the service jurisprudence and S.5 of the Indian Contract Act on which the petitioner's counsel has put stress has no application in the facts of the instant case and deserves rejection.
19. The further submission made by the petitioner's counsel that the rule of the game cannot be changed after the Page 10 of 10 process was initiated placing reliance on the judgments of the Supreme Court reported in (2001) 10 SCC 51 and (2008) 3 SCC 512 has no application for the reason that the cases relied upon by the petitioner's counsel are the matters where there was a change of selection criteria subsequent to the process of selection being initiated by the recruiting authority which was not made permissible by the Apex Court and observed that any change of criteria may change the conditions of eligibility which may not be held to be permissible in law. The view expressed in the judgment relied upon by the petitioner has been later on referred to the larger Bench of the Supreme Court which is still pending, but be that as it may at least the theory of rule of the game cannot be changed afterwards on which the petitioner placed heavy reliance has no application. In the instant case there is no change either in the selection criteria or in the procedure of selection at a later stage subsequent to the advertisement and thus the judgments of the Apex Court are of no assistance.
20. Consequently, in our considered view, the writ petition is devoid of merit and accordingly dismissed.
(ARINDAM LODH), J (AJAY RASTOGI), CJ