Tripura High Court
The State Of Tripura vs Sri Arunabha Saha on 25 August, 2020
Equivalent citations: AIRONLINE 2020 TRI 278
Author: Akil Kureshi
Bench: Akil Kureshi, S.G. Chattopadhyay
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HIGH COURT OF TRIPURA
_A_G_A_R_T_A_L_A_
WA No.196 of 2019
1. The State of Tripura, represented by the Secretary to the
Government of Tripura, Labour Department, New Capital Complex,
P.O. Secretariat Complex, P.S. New Capital Complex, District- West
Tripura, PIN-799010.
2. Labour Commissioner, Government of Tripura, having its office
at Jakson Gate, Agartala, P.O. Agartala, District- West Tripura.
3. Secretary, Government of Tripura, GA (P&T) Department having
its office at Civil Secretariat, New Capital Complex, P.O. Secretariat
Complex, P.S. New Capital Complex, District- West Tripura, PIN-
799010.
...... Appellant(s)
Versus
1. Sri Arunabha Saha, son of Sri Bhanu Lal Saha, resident of Office
Tilla, Bishalgarh, P.O. Bishalgarh, District- Sepahijala Tripura.
......... Respondent(s)
2. Tripura Public Service Commission, represented by its Secretary,
Akhaura Road, P.O. Agartala, P.S. West Agartala, District- West
Tripura.
......... Proforma Respondent(s)
For Appellant(s) : Mr. Mangal Debbarma, Addl. G.A.
For Respondent(s) : Mr. Raju Datta, Advocate.
Date of Judgment & Order : 25th August, 2020.
Whether fit for reporting : NO.
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HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
JUDGMENT & ORDER (ORAL)
(Akil kureshi, CJ) This appeal is filed by the State Government and its authorities to challenge the judgment of the learned Single Judge dated 05.08.2019 passed in WP(C) No.186 of 2019.
[2] Brief facts are as under :
The present respondent No.1 original petitioner had appeared for the selection for the post of Inspector of Boilers, Group-A, Gazetted in the Factories & Boilers Organization under the Labour Department carrying scale of pay of Rs.15600-39100/- (PB-4) with a Grade Pay of Rs.6800/- for which advertisement No.01 of 2017 was issued by the Tripura Public Service Commission (TPSC, for short). The petitioner was found to be eligible. He was allowed to appear in the screening test in which he was declared successful under a notification dated 24.10.2017 issued by the TPSC. Subsequently, the petitioner was asked to appear in the personality test which was conducted on 07.12.2017 by the TPSC. After the entire selection process was thus over, the TPSC did not declare the results. Instead the TPSC issued a communication dated 10.12.2018 in which it was stated that the Page 3 of 10 tabulation of interview marks was yet to be finalized and in the meantime the proposal for recruitment of the said post was cancelled vide notification dated 22.11.2018 pursuant to a letter dated 20.08.2018. Under the said letter dated 20.08.2018 the Government of Tripura had communicated that in view of the new recruitment policy approved by the Government, all new appointments should be made as per the said policy and all existing recruitment processes initiated by the respective departments or the TPSC would be cancelled excepting the ongoing recruitment of Tripura Judicial Service, Grade-III for which exemption was granted. It emerges from the record that the Government of Tripura had adopted new recruitment policy which was published under a notification dated 05.06.2018. The significant change made in the new recruitment policy was that weightage for the interview for Group A, B and C posts would not exceed 10% of the total marks and only in exceptional cases the weightage of the interview may exceed the said 10% ceiling which would be done with the approval of the Cabinet only. This notification also carried a declaration that the above recommendations would be applicable with prospective effect only. [3] In view of such background when the TPSC cancelled the entire selection process which had culminated up to the stage of completing the oral interviews of candidates who had cleared the Page 4 of 10 screening test, the petitioner approached the High Court by filing the above noted writ petition.
[4] The petition was strongly opposed by the Government. The learned Single Judge allowed the writ petition by relying on the decision in case of Samudra Debbarma versus State of Tripura and others dated 14.05.2019. The relevant observations of the learned Single Judge in the impugned judgment read as under :
"22. Having appreciated the submission made by the learned counsel for the parties, this court is confronted with a solitary question whether there is any tangible rationality for cancellation of the recruitment process as initiated by the TPSC Advertisement No.1-2017, Annexure-4 to the writ petition, for recruitment to the post of Inspector of Boilers, Group-A Gazetted. If it is located that there is no reason for such revocation, whether in that context, this court can direct the respondents No.3 and 4 to complete the selection process. In the similar circumstances, this court in Samudra Debbarma vs. State of Tripura & Ors. [judgment dated 14.05.2019] had occasion to observe that the scope of judicial review is limited to oversee the State action for the purpose of satisfying that it is not vitiated by vice of arbitrariness. The wisdom of the policy or the lack of it or the desirability for a better alternative does not fall within the permissible scope of judicial review. It is not for the courts to recast the policy or to substitute it with another which is considered to be more appropriate, once the attack on the ground of arbitrariness is successfully repelled by showing that the act which has done and challenged was fair and reasonable in the facts and circumstances of the case, the Constitution courts will refrain from exercising the power of judicial review. The power of judicial review is limited to the ground of constitutionality, irrationality and procedural impropriety. In the case of arbitrariness, the defect of rationality is obvious. It has been observed in the advent of the new recruitment Page 5 of 10 policy dated 05.06.2018 and the memorandum dated 20.08.2018 in Samudra Debbarma (supra) as under:
"...............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 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."
23. The same analogy and the principle is applicable in the present case. Moreover, in P. Mahendran (supra) the apex court has categorically stated that if a candidate applies for a post in response to the advertisement issued by the Public Service Commission in accordance with the recruitment rules, he acquires a right to be considered for selection in accordance with the then existing rules. This right cannot be affected by amendment of any rule unless the amending rule is retrospective in nature. The new recruitment policy has been given consciously the prospective operation and as such this court is of the view that memorandum dated 20.08.2018, Annexure-12 to the writ Page 6 of 10 petition and the notification dated 22.11.2018, Annexure-11 to the writ petition so far the selection of Inspector of Boilers is concerned are grossly unreasonable, arbitrary and unsustainable and hence those are accordingly interfered with and set aside as far as the selection of the Inspector of Boilers under the Factories & Boilers Organisation, Labour Department is concerned.
24. Having observed thus, the respondents No.3 and 4 are directed to complete the selection process, publish the result and make the recommendation to the respondents No.1 and 2 within a period of two months from the date when the petitioner shall furnish a copy of this order to the respondent No.4.
In the result, the writ petition stands allowed to the extent as indicated above.
There shall be no order as to the costs."
[5] We may record that in case of Samudra Debbarma (supra) similar issues were examined by the Single Judge. In the said case what was under challenge was the cancellation of the ongoing selection process by the TPSC for TCS and TPS Grade-II Group-A Gazetted services. In the said case also the selection process had reached at an advanced stage when relying on the same Government notifications, TPSC cancelled the selection process in view of the Government adopting new recruitment policy. The cancellation of the selection was challenged by the petitioner and others. The leaned Single Judge held that the cancellation was wholly impermissible and allowed the writ petition. This decision of the learned Single Judge was challenged by the State Government in Writ Appeal No.142 of 2019. It was, therefore, that when this writ appeal was taken up for hearing previously, on 19.11.2019 the Division Bench of this Court Page 7 of 10 while admitting the appeal had provided that the same be tagged along with Writ Appeal No.142 of 2019. Subsequently, the said Writ Appeal No.142 of 2019 was disposed of by the Division Bench by a judgment dated 03.12.2019. Due to oversight though this appeal was to be heard along with the said writ appeal the same got separated. In the said judgment dated 03.12.2019 in case of Samudra Debbarma (supra) the Division Bench confirmed the decision of the learned Single Judge to a large extent and disposed of the appeal making following observations :
"[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 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 Page 8 of 10 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 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.Page 9 of 10
[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 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 noted, the petitioner had never challenged. Such later directions for setting aside Page 10 of 10 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."
[6] Issues being identical, we do not find any reason to entertain the State appeal and the same is accordingly dismissed. Pending application(s), if any, also stands disposed of.
(S.G. CHATTOPADHYAY), J (AKIL KURESHI), CJ Dipesh