The State Of Tripura vs Sri Pratik Saha
2021 Latest Caselaw 763 Tri

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                     HIGH COURT OF TRIPURA
                           AGARTALA

                              W.A. No.229/2020

1. The State of Tripura,
   Represented by its Secretary to the Government of Tripura,
   Department of Higher Education, PO- Agartala, District- West Tripura.

2. The Tripura Public Service Commission,
   Represented by Chairman, Akhaura Road, Agartala, Pin- 799001.

3. The Secretary,
   Tripura Public Service Commission, Represented by Chairman,
   Akhaura Road, Agartala, Pin - 799001.
                                                       .....Appellant(s)

                            Versus

1. Sri Pratik Saha,
   S/o Sri Paritosh Saha, C/o. Mrinmoy Das, Resident of Ramnagar,
   Road No.4, PO- Ramnagar, Agartala, District-West Tripura,
   Pin- 799002.

2. Sri Jayanta Choudhury,
   Son of Sri Swadesh Krishna Choudhury, resident of Kunjaban Colony,
   PO - Abhoynagar, Mahadeb Bari Road, District - West Tripura,
   Agartala, PIN - 799005.

3. Sri Ajay Rudra Pal,
   Son of Sri Anil Rudra Pal, C/o. Lt. Sanjoy Bhowmik, Dhaleswar Road
   No. 11, Agartala, West Tripura, Pin - 799005.

4. Smt. Rupa Debbarma,
   D/o, Sri Samiran Debbarma, 17/3, Thakurpally Road, Krishnanagar,
   Agartala, Pin- 799002.

5. Sri Subharasmita Majumder,
   D/o. Sri Lal Mohan Majumder, Udaipur Housing Board Quarter,
   Type - 3, No.4, District Gomati Tripura, Pin -799120

6. Sri Jiban Jamati,
   S/o, Sri Pabitra Sadhan Jamatia, Uttar Chhaimarua, Kami Killa,
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  District- Gomati Tripura, Pin- 799114.

7. Sri Partha Sarkar,
   S/o Sri Pralladh Sarkar, Madhya Nayapara, Dharmanagar,
   North Tripura, Pin- 799205.

8. Smt. Chandini Debbarma,
   D/o Lt. Chasiya Debbarma, Krishnanagar, Agartala, Opposite to BJP
   Party Office, Pin- 799001.

9. Sri Shakyasen Debnath,
   S/o Sri Basu Kumar Debnath, Pragati Road, Opposite to Narapara Auto
   Stand, Dharmanagar, North Tripura.
                                                      .....Respondent(s)

For Appellant(s)             : Mr. Debalay Bhattacharjee, GA.
                               Mr. S. Saha, Advocate.

For Respondent(s)            : Mrs. Sujata Deb (Gupta), Advocate.
                               Mr. Raju Datta, Advocate.


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

Date of hearing              : 13.07.2021.

Date of delivery of          : 11.08.2021.
Judgment & order

Whether fit for reporting    : No.


                        JUDGMENT & ORDER

(Akil Kureshi, CJ).

This Appeal is filed by the State Government to challenge the

judgment of the learned Single Judge dated 02.03.2020 passed in W.P. (C)

No.1097 of 2018.

2. This litigation has long history. Briefly stated the facts are as under:

Under an advertisement No.05/2016, the Tripura Public Service

Commission („TPSC‟, for short) notified 65 vacancies in different

disciplines for the post of Lecturers, Diploma Level Technical Institution,

Government of Tripura and invited applications from eligible candidates.

All the respondents herein, the original petitioners before the Single Judge

had necessary educational and other qualifications for the posts in

question. They applied in response to the said advertisement. Written

examination was conducted on 18.07.2017 and 20.07.2017. The result of

the written examination was published on 12.10.2017. All the petitioners

succeeded in the written examination and they were therefore, called for

oral interviews, which were conducted in November, 2017.

3. In the meantime, Jayanta Choudhury petitioner No.2 herein had filed

W.P. (C) No.1404 of 2017 before the High Court and questioned the

decision of the TPSC to apply the procedure laid down in Memorandum

dated 30.03.2017 for oral interviews. As per this Memorandum, for non-

scheduled examinations personality test would consist of 100 marks to be

divided into two parts i.e. 50 marks for academic performance and 50

marks for viva-voce. The contention of the petitioner Jayanta Choudhury

was that allotment of marks of academic performance was impermissible.

4. By an order dated 10.11.2017 while issuing notice on the said

petition of Jayanta Choudhury, learned single judge restrained the TPSC

and the State Government from publishing the outcome of the selection

process without permission of the Court. Thus, pending the said petition of

Jayanta Choudhury, the interviews as scheduled were conducted. The

results were withheld.

5. This writ petition of Jayanta Chaudhuri came to be disposed of by

the learned Single Judge by a judgment dated 29.06.2018 holding that

certain clauses of the said O.M. dated 30.03.2017 are irreconcilable. The

following directions were therefore issued:

"24. In view of what has been observed and what has been found from the records produced that the TPSC-respondents followed the procedure as engrafted in clause-2 of the said memorandum dated 30.03.2017. They shall, as consequence of the observation aobe, revisit their recommendation by cancelling what they have made up and thereafter shall make the necessary recommendation by following the notification dated 29.11.2007 for the post of Lecturer, Diploma Level in the Technical Institutions in Tripura.

In terms of the above, this writ petition stands allowed."

6. The record would suggest that the TPSC and the State Government

accepted the decision of the learned Single Judge and the said judgment

therefore achieved finality without further challenge. Since after the

decision of the Single Judge in case of Jayanta Choudhury (supra), there

was no further movement on part of the TPSC, the petitioners issued a

notice to the respondents on 15.10.2018 requesting to complete the

selection process as per the judgment of the High Court. Since despite this

notice, the selection process was not undertaken further, the petitioners

filed the present petition W.P. (C) No.1097 of 2018 and prayed for a

direction to the respondents to complete the selection process as per the

decision of this Court in case of Jayanta Choudhury (supra).

7. In the said petition, the State Government and TPSC appeared and

filed replies. TPSC in its reply dated 21.12.2018, took the stand that the

General Administration Department of Government of Tripura had issued

a Memorandum dated 14.03.2018 communicating that the State

Government has decided that the recruitment processes of the Government

shall be reviewed and pending such review all ongoing selection and

recruitment processes under the Government would be kept in abeyance.

Thereafter, the Government of Tripura issued another O.M. on 20.08.2018

stating that the Government had notified a new recruitment policy on

05.06.2018 and all new appointments shall be made as per the said new

recruitment policy and all existing processes initiated by the respective

departments or TPSC stand cancelled. Under a letter dated 05.09.2018,

TPSC drew attention of the Government to the judgment of the High Court

in case of Jayanta Choudhury (supra) and to re-examine the implication

of the judgment on the recruitment process. Under a letter dated

12.10.2018, the Government communicated to the TPSC that a fresh

proposal is being initiated by the State Government for filling up the

vacancies in question and suggested that the TPSC should take action for

framing modalities and process to be followed for screening and selection

in compliance with AICTE Regulations and new recruitment policy of the

State Government.

8. The State Government in its reply dated 28.02.2019 had also relied

on the new recruitment policy of the Government pursuant to which all

existing ongoing recruitment processes were cancelled. It was pointed out

that a Notification was issued also by TPSC on 13.11.2018 cancelling the

present recruitment process.

9. An additional affidavit was filed by the State Government on

17.01.2020 highlighting that the purpose of framing new recruitment

policy is to minimize the scope of viva-voce in order to ensure fairness in

selection process.

10. The learned Single Judge disposed of the petition by the impugned

judgment dated 02.03.2020 in which referring to and relying upon the

decision of this Court in case of Sri Samudra Debarma vs. State of

Tripura and others dated 14.05.2019 in W.P. (C) No.831 of 2018, the

learned Judge held that the new recruitment policy could not have been

applied retrospectively. The respondents were, therefore, directed to

complete the selection process as per the judgment in case of Jayanta

Choudhury (supra). Following observations of the learned Single Judge

may be noted:

"[13] Some other decisions have also been relied on in respect of the change of rules in the mid of the recruitment process but in this case what is noticeable primarily is that without bringing any change in the recruitment rules based on which the TPSC initiated the selection process, the rules of the recruitment have been suddenly changed by way of so called policy. Even in the policy it has been stated that those polices would be prospective in nature, but it appears that the operation has been given retrospectively. This aspect of the matter has elaborately been discussed in the judgment dated 14.05.2019 in W.P(C) No.831 of 2018 [Sri Samundra Debbarma vs. State of Tripura & Ors.] and that part of the finding and observation has been affirmed by the judgment dated 03.12.2019 delivered in W.A. No.142 of 2019. Thus, there cannot be any different approach by this court. Under the same parameters, the recruitment process which has been initiated by the advertisement No.05 of 2016 has to be protected by this court by setting aside the notification dated 13.11.2018 [Annexure-7 to the writ petition]. Accordingly, the said notification is set aside. The

respondents No.2 & 3 are directed to complete the entire process of selection in terms of the judgment and order dated 29.06.2018 delivered in W.P.(C) No.1404 of 2017 [Sri Jayanta Choudhury vs. State of Tripura & Ors.] and thereafter, make the appropriate recommendation for appointment. It is made absolutely clear that this direction is only confined to the 65 [sixty five] posts of Lecturer, Diploma Level in the Technical Institutions in Tripura as reflected in the Advertisement No.05 of 2016.

Having observed thus, this writ petition stands allowed to the extent as indicated above.

There shall be no order as to costs."

11. Learned Government Advocate submitted that the State Government

had framed new recruitment policy to eliminate the scope of arbitrariness

in selection processes for public posts. The State Government had decided

to apply the new recruitment policy to all ongoing recruitments. The

learned Single Judge committed a serious error in holding that such new

recruitment policy should not be applied in the present case. Counsel

pointed out that the decision of learned Single Judge in case of Samudra

Debbarma (supra) was challenged by the Government in Writ Appeal

No.142 of 2019. This Writ Appeal was dismissed, however, the State

Government has approached the Supreme Court and Special Leave is

granted and the judgment of the High Court is stayed. He contended that

the learned Single Judge in the impugned judgment has relied entirely in

the decision in case of Samudra Debbarma (supra).

12. Learned counsel relied on the decision in case of Gohil Vishvaraj

Hanubhai and others vs. State of Gujarat and others, reported in (2017)

13 SCC 621. However, we find that in the said case, the question involved

was of cancellation of the entire selection process on account of large scale

malpractice having been detected.

13. He also relied on the decision in case of State of Manipur and

another vs. Takhelmayum Khelendro Meitei and others, reported in

(2019) 3 SCC 331 to contend that a selected candidate has no indefeasible

right to appoint.

14. On the other hand, the learned counsel for the original petitioners

Mrs. Sujata Deb (Gupta) opposed the Appeal contending that the entire

selection process was over at one stage. Pending the petition filed by

Jayanta Choudhury, the learned Single Judge permitted the TPSC to

continue the viva-voce test. However, after the learned Single Judge

rendered the judgment in case of Jayanta Choudhury (supra), the TPSC

would have to conduct fresh interviews, which should be on the basis of

the then existing recruitment policy of the year 2007. The petitioners are

waiting for the recruitments since more than 5 years. On the other hand,

teaching posts in Government Technical Institution are lying vacant since

years together. The petitioners, therefore, would not object to the fresh

interviews which the TPSC would have to conduct by virtue of the

judgment of the Single Judge in case of Jayanta Choudhury (supra) to be

based on the ceiling of marks for oral interviews as prescribed by the

Government in its new recruitment policy framed under Notification dated

05.06.2018.

15. The question whether the TPSC and State authorities can be allowed

to apply the new recruitment policy dated 05.06.2018 in the current

selection process, is undoubtedly relevant. We may recall, the State

Government had stopped all ongoing recruitment processes pending

formulation of a new recruitment policy, which was notified on

05.06.2018. As per this policy, for Group-B and C posts ordinarily there

would not be oral interviews and in case of justification provided by the

department, interviews may be permitted, however, the weightage of

marks for oral interview should not exceed 10% of the total marks. In this

policy, it is further provided that in case of Group-A, B and C posts, which

are to be filled by TPSC, the same would continue to be filled as per the

existing practice. However, in such cases also weightage of the interview

should not exceed 10% of the total marks and only in exceptional cases

such weightage may increase beyond 10% with the approval of the cabinet.

Relevant portion of this Notification reads as under:

"1.3 Interview should ordinarily, not be taken for B and C category of posts. However, only in exceptional circumstances, for certain categories of Group B and C posts, where justification is given by the Department concerned, provision for interview/skill test may be kept with prior approval of the Cabinet. Further, whereever such a provision is kept, the weightage for interview/skill test should not exceed 10% of total marks and the interview should be video-graphed.

1.4 The Group-A, Group-B and C posts which are at present covered by TPSC will continue to be filled as per the existing practice. However, weightage for the interview should not exceed 10% of total marks. In exceptional case weightage of interview may be increased beyond 10% with the approval of cabinet, if sufficient justification exists." (emphasis supplied by us)

16. In case of Samudra Debbarma (supra), the TPSC had initiated

recruitment process for filling up TCS Grade-II and TPS Grade-II (Group-

A Gazetted) posts in the year 2016. When this selection process was at an

advanced stage, the Government of Tripura framed the new recruitment

policy under the said Notification dated 05.06.2018. This new recruitment

policy were sought to be applied to the ongoing selection process. The

petitioner Samudra Debbarma approached the High Court and challenged

the action of the respondents. The learned Single Judge by the judgment

dated 14.05.2019 quashed the decision of the Government to cancel the

selection process on two grounds. Firstly, according to the learned judge,

the recruitment rules cannot be changed midway through the selection

process and secondly, that in any case, the new recruitment policy could

not be applied with retrospective effect.

17. The decision of the Single Judge in case of Samudra Debbarma

(supra) was challenged by the State Government by filing Writ Appeal

No.142 of 2019. The Division Bench by a judgment dated 03.12.2019

rejected the said Appeal holding that the new recruitment policy could not

have been applied as the selection process had reached at advanced stage.

It was noticed that in the existing selection process, the TPSC had allotted

11% marks to the oral interview whereas as per the new recruitment policy

of the Government, oral interview marks should be 10% of the total marks.

For such a minor change, the recruitment policy in any case should not be

applied to cancel the selection process which had reached an advanced

stage. It was also held that the prescription of marks for oral interviews

was on the basis of statutory regulations which could not have been

superseded by executive instructions. The State also preferred Review

Petition 1 of 2020 in the said case which was dismissed on 13.1.2020.

18. Ordinarily, we would have applied the said principles in the present

case also. However, one development as pointed out by the Government

Advocate is that in the state Appeal before the Supreme Court against the

judgment of Samudra Debbarma (supra), the decision of this Court is

stayed. Despite this piquant situation, in our opinion, a fair equitable and

perfectly legal way out is possibly of this unfortunate impasse.

19. We may recall, even as per the new recruitment policy, the existing

practice in case of Group-A, B and C posts to be filled up through TPSC

would continue with a rider that the weightage for oral interview should

exceed 10% of the total marks. We have recorded the statement of Mrs.

Deb (Gupta) for the original petitioners which repeated here that the

petitioners would not object to the entire selection process being completed

by applying this principle of the weightage of oral interview not exceeding

10% of the total marks. Whatever be the previous formula, the remaining

selection process, in our opinion, can be completed by allowing TPSC to

conduct fresh oral interviews and drawing the select list on the basis of the

written examinations already conducted and the result of the oral

interviews by providing not more than 10% weightage to the oral

interview. This will completely take care of the anxiety of the State

Government to limit the marks for oral interview in selection processes.

Effectively, this would ensure applicability of the new recruitment policy

dated 05.06.2018 to the present selection process. We are conscious that

pending the petition of Jayanta Choudhury, the TPSC was allowed to

conduct the oral interviews as originally scheduled. However, these oral

interviews were based on 50 marks to be allotted to academic performance

which has not been approved by the Single Judge in case of Jayanta

Choudhury (supra). The TPSC, therefore, must conduct fresh interviews

of all candidates, who have passed the written examination by applying the

ceiling of 10% weightage for viva-voce. How much weightage the oral

interview should carry not exceeding 10%, may be left to the discretion of

the TPSC and the State Government.

20. However, to allow the State Government to annul the entire

selection process would be neither permissible nor desirable. As many as

65 vacancies were notified in the year 2016. These vacancies must have

arisen earlier. These vacancies pertain to teaching posts in Government

Technical Institution. These vacancies, therefore, must be filled up at the

earliest. It is unfortunate that because of one legal challenge after another

coupled with the State decision to change the recruitment policy midway

through the selection process, such important vacancies in such large

numbers have remained un-filled for over 5 years. Allowing the State

Government to cancel the entire selection process by inviting fresh

applications and holding entire fresh selection process including written

examinations would further delay the process for filling up these posts. As

noted, by allowing the TPSC to complete the remaining selection process

by conducting oral interviews by limiting the weightage for such

interviews to not more than 10% of the total marks would in any case

subserve the purpose of the State Government expressed in the new

recruitment policy. We may recall, the main thrust of the new recruitment

policy was to eliminate or at least limit the proportion of marks for oral

interviews in order to restrict the personal and discretionary element in

selection and appointment on public posts. Effectively, all material

provisions of the new recruitment policy would be applied in the present

case, which in any case, is the desire of the State Government.

21. In the result, the Appeal is disposed of with following directions:

(i) The decision of the Single Judge setting aside the Notification

dated 13.11.2018 by which the State Government had cancelled the

selection process in the present case is confirmed.

(ii) The TPSC shall continue the existing selection process and

complete the same by holding fresh oral interviews of all candidates

who had qualified in the written examination. Such interview would

be held in consonance with the new recruitment policy dated

05.06.2018 by limiting the weightage of the oral interviews to not

more than 10% of the total marks.

(iii) It would be open for the TPSC to device further procedure for

conducting such oral interview. However, the same shall be bearing

in mind the directions contained hereinabove and also the decision

of the learned Single Judge in case of Jayanta Choudhury (supra).

(iv) Entire process shall be completed within 6 (six) months from

today.

22. The judgment of the learned Single Judge is modified to the above

extent.

23. Appeal disposed of accordingly. Pending application, if any, also

stands disposed of.

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




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