Tripura High Court
Smti. Nandini Bhattacharjee vs The State Of Tripura on 12 January, 2018
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
WP(C) 06 of 2014
Smti. Nandini Bhattacharjee,
W/o Shri Biplab Debnath,
2B, Hospital Lane, Agartala,
P.S. West Agartala
District-West Tripura, PIN-799001
.............Petitioner
Vs
1. The State of Tripura,
(to be represented by the Secretary,
Department of School Education,
Government of Tripura, Civil Secretariat Complex,
P.O. Kunjaban, Agartala, West Tripura, PIN-799006
2. The Commissioner/Secretary to the
Government of Tripura,
School Education Department,
Civil Secretariat Complex,
P.O. Kunjaban, Agartala,
District-West Tripura, PIN-799006
3. The Under Secretary to the
Government of Tripura
Department of School Education
Civil Secretariat Complex,
P.O. Kunjaban, Agartala,
District-West Tripura, PIN-799006
4. Director of School Education,
Government of Tripura,
Old Secretariat Building,
Akhaura Road, Agartala,
PIN-799001
5. Addl. Secretary,
Government of Tripura,
Office of the Director of School Education,
Secretariat Complex, P.O. Kunjaban,
Agartala, District-West Tripura, PIN-799006
6. The Principal-in-Charge, DIET,
Abhoynagar, Agartala,
P.O. Abhoynagar,
District-West Tripura, PIN-799005
7. Smt. Paramita Majumdar,
C/o Sri Karunamay Pal,
20B, Office Lane, Agartala,
WP(C) 06 /2014 Page 1 of 11
P.S West Agartala, P.O. Agartala,
District-West Tripura, PIN-799001
8. Smt. Manidipa Sutradhar,
W/o Rajkumar Sutradhar, P.O. Barjala
(via Ramnagar)
P.S. West Agartala, Agartala,
PIN-799002
9. Smt. Soma Chakraborty,
C/o Dr. Richi Prasad Sharma,
W/o Sri Swapan Sarkar (Jashoda Bhavan),
Vill-Dhaleswar Raod No.1, P.O. Dhaleswar,
Agartala, PIN-799007
10. Smt. Manika Deb
W/o Prabuddha Sundar Kar,
C/o Sudhar Sutradhar,
Jagatpur, (Kalibari Road)
P.O. Abhoynagar, Agartala,
PIN-799005
11. Smt. Falguni Dey (Ray)
C/o Ashutosh Dey
Vill-Kaulikura, P.O. Sonamukhi,
District-Unakoti, PIN-799280
12. Smti. Barnali Purkayastha (Tarat)
C/o Mr. JK Purkayastha, Flat No. 1017,
Shyamalima Apartment, New Capital Complex,
Kunjaban, Agartala, PIN-799006
13. Smt.Mitali Dhar
Harerkhola (Ward No.11)
P.O. & P.S. Kamalpur, Dhalai,
Tripura, PIN-799285
............... Respondents
BEFORE
THE HON'BLE MR. JUSTICE S. TALAPATRA
For the petitioner : Mr. AK Bhowmik, Sr. Advovcate
Mr. R Dutta, Advocate
For the respondents 1-6 : Mr. J Majumdar, Advocate
For the respondents 7 & 9 : Mr. DK Biswas, Advocate
For the respondents 8,10-13 : Ms D Bhattacharjee, Advocate
Date of hearing & delivery
of judgment &order : 12.01.2018
Whether fit for reporting : No.
WP(C) 06 /2014 Page 2 of 11
JUDGMENT AND ORDER (ORAL)
Heard Mr. AK Bhowmik, learned senior counsel assisted by Mr. R Dutta, learned counsel appearing for the petitioner. Also heard Mr. J Majumdar, learned counsel appearing for the respondents No.1 to 6 and Mr. DK Biswas, learned counsel appearing for respondents No.7 and 9 as well as Ms D Bhattacharjee, learned counsel appearing for the respondents No.8,10 to 13.
2. The facts are mostly admitted. The petitioner has been substantively posted as Post Graduate Teacher in English and while she was posted in Taltala HS School, she applied for posting in the District Institute of Education and Training, in short DIET, in response to the memorandum dated 15.05.2013 (Annexure-P1 to the writ petition). After screening, the petitioner's service was placed at the disposal of the Principal, DIET, Agartala by the memorandum dated 17.07.2003 (Annexure-P2 to the writ petition). Till now the petitioner has been serving in that institution without any break, meaning the petitioner has already rendered about 15 years of service on deputation.
2. The recruitment of Lecturer in DIET is regulated by the rules called, "Lecturer, DIET's Recruitment Rules (2004)" which was published by the notification dated 06.12.2004 (Annexure-P4 to the writ petition). From the schedule appended to the notification, it appears that the total number of Lecturers available under the DIET is 30 or may be more if posts were created subsequently. The method of recruitment is 100% by direct recruitment and in Rule 7, the educational and other essential qualifications have been delineated.
WP(C) 06 /2014 Page 3 of 11
3. By the memorandum dated 29.10.2004 (Annexure-P5 to the writ petition) the Education Department created 17 posts of Lecturer with monthly contract pay of Rs.5,000/- for DIET. From the records, it further appears that the memorandum for the council of ministers dated 17.07.2004 has recorded as follows:
"5. ......., the proposal to fill up newly created 20(twenty) posts and 17 (seventeen) available vacant posts of Lecturer, DIET on contract pay of Rs.5000/- per month initially for a period of one year extendable every year on case to case basis depending on their performances, is placed before the Council of Ministers for kind consideration and approval."
4. There is no dispute that thereafter when the Council of Ministers approved the appointment of the Lecturers on contract, the Director, SCERT, Agartala published the advertisement dated 06.02.2004, Annexure R1 to the affidavit in opposition filed by the respondents No.8, 10 to 13 as represented by Ms Bhattacharjee, learned counsel. By the said advertisement, applications were invited from the eligible candidates for engagement on contract basis for the post of Lecturer in DIETs of Tripura.
5. No challenge has been thrown by the petitioner against the said process till this writ petition has been filed. In pursuance to the said advertisement and on the basis of the screening test, the respondents whose names appeared in the notification dated 17.06.2004 were appointed on contract basis and from time to time, their tenure was extended by passing the appropriate order. For reference the passage from the memorandum dated 28.10.2004 (Anenxure-P10 to the writ petition) may be referred:
"On recommendation of the Selection Committee Smt. Paramita Majumder is offered a post of Lecturer, District Institute of Education and Training (DIET) on the consolidated pay of Rs.5,000/- (Rupees Five Thousand) only on contract basis for a period of one year from the date of joining on the following terms and conditions:
(i) The appointee concerned will not be entitled to any other financial benefits like dearness allowance, WP(C) 06 /2014 Page 4 of 11 House Rent Allowance, medical Allowance, Compensatory Allowance, etc. as admissible to a regular Government employees.
(ii) During the period of contract services she will be allowed to do any private tuition, coaching, etc nor she will be allowed to engage herself to any other Institutions, Firms, Companies, etc.
(iii) She will be entitled to enjoy off-duty days for a period not exceeding 12 (twelve) days during the entire period of 1(one) year contract service, in or several occasions, subject to prior sanction from the competent authority.
(iv) She will not be entitled to get any TA/DA for joining the post and return to his home places after expiry of contract period.
(v) The appointee concerned will be subject to strict discipline and other disciplinary matters as applicable to such category of employees.
(vi) In case of unauthorized absence in the duty or dereliction of duties during contract service mentioned above in a month will be attributable to a contract lecturer, to the effect that remuneration shall be reduced proportionately considering such absence.
(vii) In case of gross misconduct or dereliction of duty or breach of any of the terms and conditions as stated above, her services shall be liable to be terminated forthwith.
(viii) She will not have any say regarding place of posting and is liable to serve in any DIETs in Tripura."
6. Thus, it has clearly surfaced that there was a selection process. After the advertisement was published and in terms of the selection made therefrom, the offer of appointment was issued. The letter of appointment was issued in terms of the conditions as laid down in the memorandum dated 28.10.2004.
7. Thereafter, by notification dated 17.06.2004 (Anenxure-P7 to the writ petition) their engagements were regularized. For purpose of making extensive reference to the said notification dated 17.06.2004 the entire text of the said notification is extracted hereunder:
"No.F.2A(10-40)DSE/2001 Government of Tripura Education (School) Department th Dated, Agartala, 17 June, 2004 NOTIFICATION In continuation of this Department Memorandum of even number dated 28-05-2004 and on recommendation of the Tripura Public Service Commission, the Governor of Tripura is pleased to appoint the following persons to the post of Lecturer, District Institute of Education and Training (DIET) in the scale of pay of WP(C) 06 /2014 Page 5 of 11 Rs.7,450-22-11,500-250-13,000/- plus admissible allowances purely on temporary basis and posted to the places as noted below in col. No.3:
Sl. Name of the Officers Posted to
No.
1 2 3
1 Smt. Manidipa Gan Choudhuri (UR) DIET, Agartala
A/T (HS), Charipara HS School, Bishalgarh
2 Smt. Chandana Bandyopadhyay (UR) DIET, Kailashahar
C/O Sri Mukumdalala Bandyopadhyay,
Banamalipur, AA Road, Agartla-799001
3 Smt. Paushali Das, (UR) DIET, Kakraban
A/T (HS), Shishu Bihar HS School, Agartala
4 Sri Ashesh Datta, (UR) DIET, Kakraban
A/T(HS), Chandrapur HS School, Udaipur
5 Smt. Sumita Datta (UR) DIET, Kamalpur
AT(HS),Mirza HS School, Udaipur
6 Smt. Mallika Das (UR) DIET, Agartala
A/T(HS), birendranagar HS School, Sadar
7 Sri Mihir Datta (UR) DIET, Agartala
A/T(HS), Amarpur HS School, Amarpur
8 Smt.Maya Mukherjee (Bhowmik), (UR) DIET, Kakraban
A/T (HS), Udaipur English Medium JHS
School, Udaipur.
2. Sl. No(s)1,3,4 and 6 to 8 will join in the respective DIETs and Sl. No. 2 and 5 will report ot the Deputy Director of Education, North Dist. Kailashahar and District Education officer, Dhalai Dist., th Ambassa respectively on 30 June,2004 positively by submitting one-sided charge report under GFR-33-A failing which his/her appointment shall automatically be cancelled.
3. They will remain on probation for a period of 2(two) years from the day of their joining in the post.
4. Their pay etc. will be fixed as per normal rules except under Sl. No.2.
5. The above appointment are subject to police verification reports. In case anyone is found unsuitable for Government Job as per police verification reports, his/her appointment shall be terminated forthwith.
6. they are entertained against 8 of 30 temporary posts of lecturer, DIET created vide No.F.36(10)-SCERT/97/5379-125 dated 11.6.98. The expenditure on this account shall be debitable to the Head of Account:2202-General Education, 02-Secondary Education, 004-Research and Training (SCERT)(Non-Plan).
By order of the Governor, Sd/- Illegible (Ms S. Deb) Under Secretary to the Government of Tripura."
8. Thereafter, by the notification dated 03.05.2012, the private respondents were appointed to the post of Lecturer, DIET in Pay Band-3:
Rs.9570-30,000/- with Grade Pay of Rs.3500/- with admissible allowances purely on temporary basis. The notification begins with the following paragraph:
"In continuation of this Department Memorandum of even number dated 28-03-2012 and on recommendation of the Tripura Public Service Commission, the Governor of Tripura is pleased to appoint the following persons to the WP(C) 06 /2014 Page 6 of 11 post of Lecturer, District Institute of Education and Training (DIET) in the pay band-3 9570-30,000/- with Grade Pay of 3500/- plus admissible allowances purely on temporary basis ......"
9. As it appears from the averments of the writ petition and the reliefs prayed for by the petitioner that the petitioner felt aggrieved by the said notification dated 17.06.2004 and by filing this writ petition has prayed for the reliefs which are as under:
a) For cancellation of the order under No. F.2(10-25)-SE-
E(G)/09 dated 03.05.2012 (Anenxure-P12 to the writ petition).
b) To consider the petitioner for the post of Lecturer, DIET from the date of her deputation vide memorandum under No. F.3(1-99) DSE/2000 dated 17.07.2003 issued by the Director of School Education (Annexure-P2 to the writ petition); and finally,
c) For a mandamus directing the respondents No. 1 to 6 to absorb the petitioner to the post of Lecturer, DIET with effect from date on which the petitioner's service was placed at the disposal of the Principal, DIET, Agartala in terms of the memorandum under No. F.3(1-99)DSE/2000 dated 17.07.2003.
10. Mr. AK Bhowmik, learned senior counsel appearing for the petitioner has strenuously submitted that the petitioner has averred in para 16 of the writ petition that the entire process of the appointment of the respondents N0.7 to 13 as the Lecturer is enveloped in a shady process, for not following the transparent procedure of selection. The petitioner, despite being eligible for consideration for the post of Lecturer, DIET had been deprived from such consideration in violation of her Constitutional rights guaranteed under Article 14 and 16.
11. Mr. Bhowmik has taken this Court to the details of the relevant facts emanating from the records along with the writ petition. He has further contended that the petitioner has been serving for a longer period than the private respondents, but there has been no consideration for her WP(C) 06 /2014 Page 7 of 11 absorption in the post of Lecturer, DIET not withstanding that she conforms to all the essential qualifications as required by the recruitment rules for Lecturer in DIET.
12. According to Mr. Bhowmik, learned senior counsel, this is a sort of hostile discrimination while adopting the procedure for regularization of the private respondents in the post of Lecturer by leaving the petitioner at large and depriving her from due consideration.
13. Mr. J Majumjdar, learned counsel appearing for the respondents has categorically stated that there is no question of intransparent procedure. By a public advertisement the applications were invited from the eligible candidates for filling up the post of Lecturer on contract basis and all the private respondents have participated in the selection process and on assessment of their qualification and performance in the selection process, they were recommended and accordingly they have been appointed as the Lecturer in the DIET on contract basis. Admittedly, according to Mr. J Majumdar, the petitioner never participated in the said selection process. Hence, the petitioner cannot claim to belong in the same class.
14. Further, Mr. Majumdar has submitted that the respondents by filing their reply have categorically denied the allegation of non- transparent process of selection. A written instruction from the Director, SCERT has been placed before this Court by Mr. Majumdar. From the instruction, it appears that for dearth of the requisite number of Lecturers in the DIET, School Education Department faced serious difficulty and as a stop gap arrangement, the Post Graduate teachers from the government schools were brought on deputation to discharge the duties of Lecturer in the DIETs. Even the deputation of some of the PG teachers to the DIETs has WP(C) 06 /2014 Page 8 of 11 been withdrawn in the phased manner on considering the necessities. It has been also asserted that the deputation to the DIET does not confer any right to any deputed PG teacher for regularization of his/her service as a Lecturer of DIET as the posts of Lecturers created by the competent authority of the government are selected by the TPSC based on the guidelines of National Council for Teacher Education (NCTE). A copy of this written instruction is placed in the record. According to Mr. Majumdar, the petitioner does not have any right to even insist for absorption in the post of Lecturer in the DIET.
15. Mr. Biswas, learned counsel appearing for the respondents No. 7 and 9 has emphatically submitted that the petitioner falls in a completely separate class and does not have any locus standi to question the appointment on regular basis in the post of Lecturer in the DIET. She was never appointed as a Lecturer on contract basis and those persons who were appointed as lecturer, DIET on contract basis constitute an entirely separate class and the government on assessment of their performance referred the matter to the Public Service Commission [PSC] to conform to the procedure as laid down in the recruitment rules and on the basis of the recommendation of the Public Service Commission, they have been appointed afresh as the Lecturer, DIET.
16. Ms Bhattacharjee, learned counsel appearing for the respondents No.8, 10 to 13 has adopted the submission made by Mr. Majumdar and Mr. Biswas, learned counsel and submitted that there is no procedural infirmity or impropriety which can be challenged by the petitioner.
17. Having appreciated the records as produced by the petitioner and the respondents, as well as the averments and top of all, the WP(C) 06 /2014 Page 9 of 11 submissions made by the learned counsel for the parties, this Court is of the considered opinion that the regular process of the direct recruitment was definitely not followed while appointing the private respondents but the government having due regard to the exigency in the DIETs has adopted a policy that if the Public Service Commission having considered the educational qualifications, performance report, etc. found that the private respondents can be appointed as Lecturer, DIET, then they would be so appointed. There cannot be any amount of dispute that during that process there was no public employment notice for participation of those who were not borne in the catalogue of the Lecturers on contract service.
18. The question, therefore, falls for consideration is whether the government has the competence to regularize the service of the private respondents in the manner as has been done. The government is definitely within its competence as it appears that they were satisfied with the performance of the private respondents and they made a reference to the Public Service Commission to oversee the entire exercise and the Public Service Commission, which is the recommending authority for appointment to the post of Lecturer, DIET was satisfied and they had recommended to the government for recruitment of the private respondents and as such they were recruited. For this process, no right of the petitioner has been violated as Mr. Biswas has rightly pointed out that the petitioner belongs to a different class which class is constituted of the persons deputed from the different government schools.
19. What the core question is that the petitioner has been serving since 2003 as a Lecturer, DIET on deputation and long back she has crossed the maximum period of deputation. The petitioner had not been repatriated and the respondents are continuously realizing the service from WP(C) 06 /2014 Page 10 of 11 the petitioner. As such, this Court finds a basis to observe that if the respondents were satisfied with the performance of the petitioner and then, the satisfaction itself is the basis for the petitioner's claim for absorption in the post.
20. Mr. Majumdar, learned counsel appearing for the respondents No.1 to 6 has clearly submitted that no such exercise has been taken up by the government as the petitioner did not represent for such absorption at any point of time.
21. Be that as it may, this Court is of the view that it would have been equitus for the government to take an exercise to weigh the option whether the persons serving for a long period on deputation in the DIETs could be absorbed or not. But that option has not been weighed. It is no denying fact that absorption is curved out to be exception in the process of recruitment, but to tape the efficiency gathered through experience it is a known method, exercised rarely.
22. Having observed thus, the respondents No.1 to 6 are directed to consider the case of the petitioner or the other similarly circumstanced persons for absorption and such consideration shall be completed within four months from the day when the petitioner shall furnish a copy of this order. Till such consideration, the petitioner shall not be repatriated to her parent department.
23. In terms of the above, this writ petition stands disposed of.
No order as to costs.
JUDGE lodh WP(C) 06 /2014 Page 11 of 11