Tripura High Court
Sri Pranab Ghosh vs Tripura Public Service Commission And ... on 10 January, 2020
Author: Akil Kureshi
Bench: Akil Kureshi
Page 1 of 5
HIGH COURT OF TRIPURA
AGARTALA
W.P. (C) No.1085/2019
Sri Pranab Ghosh
.....Appellant(s)
Versus
Tripura Public Service Commission and others
.....Respondent(s)
For Petitioner(s) : Mr. P. Roy Barman, Advocate.
Mr. Samarjit Bhattacharjee, Advocate.
For Respondent No.3 : Mr. D. Bhattacharjee, GA. For Respondents No.1 & 2 : Mr. Raju Datta, Advocate.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI Order 10/01/2020.
Heard learned counsel for the parties for final disposal of the petition. Petitioner has challenged an advertisement issued by the Tripura Public Service Commission by which applications were invited from eligible candidates for selection to the post of System Manager on contractual basis in the establishment of Tripura Public Service Commission ('TPSC', for short).
2. Brief facts are as under:
One post of System Manager (Computerization) was created in the establishment of TPSC in the year 2014. An advertisement was published on 19.01.2015 for selecting a suitable candidate for being appointed on the said posts of System Manager for a period of one year. The petitioner applied for the said post. He was duly qualified and selected for appointment. A notification dated 24.03.2015 was issued declaring that the petitioner, who belonged Page 2 of 5 to the un-reserved category had secured 75 marks during the tests. The respondents found the petitioner suitable and was therefore appointed by an order dated 25.03.2015 on the post of System Manager on contractual basis for a period of one year on a monthly remuneration of Rs.30,000/-. The order of appointment recorded that the period may be extended up to two years subject to satisfactory performance on the posts. The petitioner joined the duty and has been performing his duties on the said post continuously since then. There is no complaint about the satisfactory performance of the petitioner's duties. Despite this, the respondents decided to re-advertise the post for which the impugned advertisement came to be published. The petitioner after initially applying in response to the said advertisement, filed the present petition challenging the very advertisement and the fresh recruitment process undertaken by the respondents. The petitioner did not further participate in the selection process.
3. In this background, counsel for the petitioner submitted that the action of the respondents of inviting fresh applications for contractual engagement on the same post is totally illegal. One contractual employee is sought to be replaced by another, which is opposed to the well settled legal position. In this context, counsel relied on the decision of Supreme Court in case of Hargurpratap Singh vs. State of Punjab and others, reported in (2007) 13 SCC 292.
4. On the other hand, learned counsel for the Government as well as TPSC jointly submitted that petitioner's engagement was purely contractual and was for a fixed period. It is always open for Page 3 of 5 the respondents to invite fresh applications after completion of the contractual period of engagement. It was contended that the petitioner having participated in the selection process is estopped from challenging the selection itself.
5. At the outset, it may be recorded that upon a specific question as to the nature of the performance of the petitioner in the said post, counsel for the respondents clarified that at no point of time the same was found to be unsatisfactory. Even otherwise, no grounds of unsatisfactory work performance of the petitioner on account of which his engagement is required to be discontinued giving rise to the requirement of fresh appointment has been cited in the replies filed by the respondents. I must therefore proceed on such basis.
6. The situation therefore that will emerge is that the petitioner was selected after due selection process which was undertaken by the TPSC in the year 2015 when the petitioner was found to be most meritorious candidate. He was, therefore, appointed to the post in question, of course, on contractual basis and the appointment envisaged a fixed period. However, even under such circumstances, the engagement of the petitioner cannot be terminated unless and until any of the following eventualities arise namely, either the performance of the employee is found to be unsatisfactory or for some such similar reason is required to be disengaged, or there is no need for such engagement look to the reduction of work or lastly, the post itself is converted into a regular post where appointment on permanent basis would be made. However, barring such situations, the engagement of a Page 4 of 5 contractual worker cannot be substituted by another. As holding a post on contractual basis, the petitioner may not be entitled to the protection under Article 311 of the Constitution of India, nevertheless the respondents cannot breach Article 14. Without any valid reasons, engagement of a new person on contractual basis by replacing the existing one, would certainly breach Article 14 of the Constitution. In this context, we may note the observations of Supreme Court in case of Hargurpratap Singh (supra):
"3. We have carefully looked into the judgment of the High Court and other pleadings that have been put forth before this Court. It is clear that though the appellants may not be entitled to regular appointment as such it cannot be said that they will not be entitled to the minimum of the pay scale nor that they should not be continued till regular incumbents are appointed. The course adopted by the High Court is to displace one ad hoc arrangement by another ad hoc arrangement which is not at all appropriate for these persons who have gained experience which will be more beneficial and useful to the colleges concerned rather than to appoint persons afresh on ad hoc basis. Therefore, we set aside the orders made by the High Court to the extent the same deny the claim of the appellants of minimum pay scale and continuation in service till regular incumbents are appointed. We direct that they shall be continued in service till regular appointments are made on minimum of the pay scale. The appeals shall stand allowed in part accordingly."
7. All that in the affidavit-in-reply filed on behalf of TPSC of note that has been stated is that after extending the contract of the existing employees, it was decided to take a fresh process of Page 5 of 5 selection as per new recruitment policy. Nothing is pointed out to suggest how the so-called new recruitment policy would vitiate the selection and appointment of the petitioner, which was made long back and who has been working on the post since 5 years without any complaint about his performance.
8. The ground that the petitioner having participated in the selection process pursuant to the fresh advertisement and therefore, cannot challenge it also cannot be accepted. This ground of estoppel is based on the principle that a person, who has participated fully till the selection process is completed, cannot be allowed to challenge the same having not been selected. The logic applied is that if he was selected, surely he would not have challenged the selection process, having not been selected, he cannot be allowed to do so. In the present case, the petitioner has not participated in the selection process. He, in fact, challenged it long before the selection process was over. His act of making an application in response to the advertisement before filing the petition cannot be equated with his unequivocal participation in the selection process.
9. In the result, the selection process undertaken by the respondents pursuant to the impugned advertisement dated 11.07.2019 is set aside. Petition is allowed and disposed of accordingly.
10. Pending application, if any, also stands disposed of.
(AKIL KURESHI), CJ sima