Sri Sumit Chowdhury vs The State Of Tripura
2021 Latest Caselaw 463 Tri

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                     HIGH COURT OF TRIPURA
                           AGARTALA

                               W.A. No.71/2021

Sri Sumit Chowdhury,
S/O-Lt. Dilip Chowdhury, Resident of Vill- Indranagar, Banglarmath,
P.O - Indranagar, Agartala, District- West Tripura, PIN- 799006.

                                                          .....Appellant(s)

                            Versus

1. The State of Tripura
   To be represented by the Secretary, Health and Family Welfare
   Department, Government of Tripura, New Secretariat Building, New
   Capital Complex, Kunjaban, Agartala, West Tripura, PIN 799010.

2. The Director of Health Services,
   Health and Family Welfare Department, Govt. of Tripura, P.N Complex,
   Gorkhabasti, Agartala, West Tripura, PIN-799006.

3. Shri Bidyut Ghosh,
   S/O Sri Binoy Krishna Ghosh, resident of Vill & P.O- Durganagar,
   Ranirbazar, West Tripura, PIN - 799035.

4. Shri Rahul Datta,
   S/O-Sri Arjun Datta, resident of Vill- Haripur, P.O- Hrishyamukh,
   Belonia, South Tripura, PIN- 799156.

5. Sri Sukanta Debnath,
   S/O- Sri Santosh Debnath, resident of Vill- Haripur, P.O - Hrishyamukh,
   Belonia, South Tripura, PIN 799156.

6. Sri Sanjib Paul,
   S/O- Lt. Tapan Paul, resident of Vill- Ramnagar, P.O- Hrishyamukh,
   Belonia, South Tripura, PIN 799156.

7. Sri Sukanta Debnath,
   S/O - Sri Benu Lal Debnath, resident of Vill - Dhalabil, P.O - Khowai
   Tea Garden, Khowai Tripura, PIN 799201.

                                                        .....Respondent(s)

For Appellant(s) : Mr. P. Roy Barman, Sr. Advocate.

Mr. A. Baidya, Advocate.

For Respondents No.1 & 2 : Mr. H. Sarkar, Advocate.

HON‟BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON‟BLE MR. JUSTICE S.G. CHATTOPADHYAY

Date of hearing and judgment : 06.04.2021.

Whether fit for reporting         : No.


                   JUDGMENT & ORDER (ORAL)

(Akil Kureshi, CJ).

This Appeal is filed by the original petitioner to challenge a

judgment dated 14.12.2020 passed by the learned Single Judge in W.P. (C)

No.745 of 2019.

2. Brief facts are as under:

The Director of Health Services had issued employment Notification

dated 24.05.2016 inviting applications for filling-up 95 vacancies in the

cadre of Lower Division Clerk of which 45 were for un-reserved category

candidates. The petitioner having necessary educational qualification

applied to the post in question in such category. He was called for

interview and on the basis of employment policy prevailing at the relevant

time was assigned 58 out of 100 marks. The last selected candidate in the

un-reserved category was awarded 60 marks. The petitioner pointed out

that he belonged to BPL category with monthly family income of

Rs.4,500/-. As per the employment policy, 25 marks were earmarked for

'need criteria'. This 'need criteria' was further elaborated as under:

"(iv) „Need Criteria „Need‟ shall be as hereunder :

(a) Total income of the family of candidate shall not exceed Rs.1.50 lakh per year and

(b) There is no member in the family having Government employment.‟"

3. The petitioner was awarded 10 out of 25 marks under this head. He

pointed out that several other candidates, who were selected and offered

appointment were granted much higher marks under this criteria though,

their families had similar monthly incomes. The principle argument of the

petitioner was that once need criteria was bifurcated into two heads of total

income of the family of the candidate not exceeding Rs.1,50,000/- and

there should be no other member of the family employed in Government

service, thereafter there was no further discretion with the selection board

to award different marks under this head. According to the petitioner, a

candidate would either get full 25 marks or zero marks in need criteria.

The petitioner also presumably as a subsidiary argument criticized the

application of need criteria by the interview committee as being arbitrary.

The learned Single Judge was of the opinion that the interview committee

had a discretion to award suitable marks out of 25 for 'need criteria' and

since the interview committee had exercised its discretion, the Court would

not in exercise of jurisdiction interfere with the same. Resultantly, the Writ

Petition was dismissed.

4. At the outset, we may clarify that the validity of assigning marks for

'need criteria' is not in challenge before us in this Appeal. We would,

therefore, proceed on the basis that the prescription of 25 marks under the

head of 'need criteria' was valid. If we peruse the prescription of 25 marks

under this head, we find that the elaboration made in the employment

policy, as noted, is twofold. First requirement is that the total income of the

family of the candidate should not exceed Rs.1,50,000/- per annum. The

second requirement is that there should be no member of the family of the

candidate in Government employment. These two criteria would be in the

nature of qualifications for securing any marks under the head of 'need

criteria'. If these requirements are not fulfilled, the interview committee

can suitably reduce the marks to be assigned to the candidate. However,

the converse is not true. Therefore, if a candidate fulfills both these

requirements, he cannot insist that he must be awarded full 25 marks under

this head. This, thus, gives certain discretionary powers to the interview

committee. However, where the interview committee decides to exercise

its discretion, the same must be uniformly done. When such discretion is

based on quantifiable parameters, it must also be demonstrated that it is

uniformly applied. In this context, we may reproduce the data analyzed

and recorded by the learned Single Judge in the impugned judgment which

contains the breakup of total marks awarded to the respective candidates,

the monthly income of the family of the candidate and the marks awarded

to the candidate under 'need criteria'. This data which is put in a tabulated

form reads as under:

 Sl.             Name           Total    Marks   BPL/Adhoc    Family       Marks given in
 No.                            Obtained         BPL/APL      Income                 Need
                                                              (P.M.)       Criteria
 1.    Sumit Choudhury          58               Adhoc BPL    Rs.4500/-    10
       (Petitioner) [Sl.        (Page 38)        (Page 25)    (Page 26)    (Page 38)
       No.6076]
 2.    Bidyut Ghosh             60               BPL          Rs.3000/-    16
       (Respondent No.3) [Sl.   (Page 37)        Page 86      (Page 79)    (Page 37)
       No.860]
 3.    Rahul Datta              60               Adhoc BPL    Rs.4000/-    16
       (Respondent No.4) [Sl.   (Page 37)        (Page 96)    (Page 95)    (Page 37)
       No.959]
 4.    Sukanta Debnath          60               BPL          Rs.4500/-    16
       (Respondent No.5)        (Page 37)        (Page 102)   (Page 101)   (Page 37)
       [Sl. No.964]
 5.    Sanjib Paul              60               (Page 110)   Rs.3500/-    18
       (Respondent no.6)        (Page 37)                     (Page 111)   (Page 37)
       [Sl. No.1629]
 6.    Sukanta Debnath          60               APL          Rs.3500/-    15
       (Respondent No.7) [Sl.   (Page 38)        (Page 123)   (Page 121)   (Page 38)
       No.5890]

5. This data shows some disturbing figures. The petitioner who is

shown at serial no.1 here and whose monthly family income was

Rs.4,500/- has been awarded 10 marks under 'need criteria'. Another

candidate Sukanta Debnath, who also had identical monthly income, has

been awarded 16 out of 25 marks. Another candidate Rahul Datta, who had

monthly income of Rs.4,000/- i.e. less than that of candidate Sukanta

Debnath was also awarded 16 marks. In another comparison, we find that

the candidate Bidyut Ghosh whose monthly income of Rs.3,000/- was

awarded 16 marks whereas candidate Sanjib Paul with income of

Rs.3,500/- is awarded 18 marks. This distribution of marks completely

defies logic. Once interview committee decides to base its assessment of

'need criteria' on the monthly income, there has to be uniform standards,

which must be applied equally to all candidates. The interview committee

simply cannot award different marks to different candidates though both

may have identical monthly family incomes. This is precisely what has

happened in the present case. The petitioner, in particular, has got at least 6

marks less than other candidates, who on the score of monthly family

income were similarly situated. No case is setup by the respondents that

different marks for identical family incomes were awarded looking to the

number of members of the families concerned. To be included in the select

list, the petitioner required only two more marks since as noted, his tally

was 58 marks whereas the last selected UR category candidate was

awarded 60 marks.

6. In the result, we are inclined to allow this Appeal. In facts of the

case, the relief that may be granted shall have to be molded. We are

informed that the selected candidates had to appear in type test and only

those who passed the typing test were offered appointment. The petitioner

must go through the same process.

7. The Appeal is disposed of with following directions:

(i) The petitioner shall be offered appointment on the existing vacancy of

LDC on UR candidate if he passes the type test which may be conducted

within a period of 4 (four) weeks from today. If there is no vacancy

existing, he shall be offered appointment on the first available vacancy

which may arise. In either case, his appointment shall be prospective and

his pay, allowances and seniority shall be counted from the date of his

joining service.

8. These directions shall be carried out within 3(three) months from

today or as soon as, the new vacancy arises, if there is no existing vacancy.

Pending application(s), if any, also stands disposed of.

(S.G. CHATTOPADHYAY), J                             (AKIL KURESHI), CJ




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