Sri Bijoy Krishna Saha vs The State Of Tripura
2021 Latest Caselaw 764 Tri

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                   HIGH COURT OF TRIPURA
                      A_G_A_R_T_A_L_A
                      WP(C) No. 317 of 2021

1.   Sri Bijoy Krishna Saha, son of Shri Madhab Chandra Saha,
     resident of Village-Dhaleswar, Road No.1, P.O. Dhaleswar,
     P.S. East Agartala, Sub-division-Sadar, District-West Tripura,
     PIN-799007, Age-44.
2.   Sri Rajib Das, son of late Manehan Das, resident of Village-
     Ramnagar, Road No.8, P.O. Ramnagar, P.S. West Agartala,
     District- West Tripura, PIN-799002, Age-43.
3.   Sri Arun Bhaumik, son of late Santi Ranjan Bhaumik,
     resident of Village-Nanditilla, P.O. S.D. Mission Colony, P.S.
     A. D. Nagar, Sub-division-Sadar, District- West Tripura, PIN-
     799003, Age-41.
                                                     .....Petitioners
                          -V E R S U S-

1.   The State of Tripura, represented by the Secretary &
     Commissioner to the Department of Education, Government of
     Tripura, having his office at New Secretariat Complex,
     Gorkhabasti, Agartala, P.O. Kunjaban, P.S. New Capital
     Complex, Sub-division- Agartala, District- West Tripura.
2.   The Secretary & Commissioner to the Department of
     Education, Government of Tripura, having his office at New
     Secretariat Complex, Gorkhabasti, Agartala, P.O. Kunjaban,
     P.S. New Capital Complex, Sub-division- Agartala, District-
     West Tripura.
3.   The Director of School Education, Government of Tripura,
     having his office at New Secretariat Complex, Gorkhabasti,
     Agartala, P.O. Kunjaban, P.S. New Capital Complex, Sub-
     division- Agartala, District- West Tripura.
4.   The Joint Recruitment Board of Tripura, Government of
     Tripura, represented by its Member Secretary, having his office
     at New Secretariat Complex, Gorkhabasti, Agartala, P.O.
     Kunjaban, P.S. New Capital Complex, Sub-division- Agartala,
     District- West Tripura.

                                                  ..... Respondents.

B_E_F_O_R_E HON'BLE MR. JUSTICE ARINDAM LODH

For Petitioner(s) : Mr. Somik Deb, Sr. Advocate.

Mr. Abir Baran, Advocate.

For Respondent(s)         :        Mr. D. Bhattacharjee, G.A.
Date of hearing
and delivery of
judgment and order        :        12.08.2021
Whether fit for reporting :        YES

                    JUDGMENT & ORDER [ORAL]

Heard Mr. Somik Deb, learned senior counsel assisted by Mr. Abir Baran, learned counsel appearing for the petitioners. Also heard Mr. D. Bhattacharjee, learned G.A. appearing for the respondents-State.

[2] By means of filing the present writ petition, the petitioners have prayed for following reliefs:

"(i) Issue Rule, calling upon the respondents and each one of them, to show cause as to why a Writ of Certiorari and/or in the nature thereof, shall not be issued, for directing the respondents, to transmit the records, appertaining to this writ petition, lying with them, for rendering substantive and conscionable justice to the petitioners, and for quashing/setting aside the impugned Advertisements dated 27.11.2020 & 03.12.2020 (Annexures-5 & 6 respectively supra);

(ii) Issue Rule, calling upon the respondents and each one of them, to show cause as to why a Writ of Mandamus and/or in the nature thereof, shall not be issued, for mandating/directing the respondents, to forthwith revoke/rescind the impugned Advertisements dated 27.11.2020 & 03.12.2020 (Annexures-5 & 6 respectively supra), and thereupon, permit the petitioners to retain the alternate employment, i.e. by directing the State respondents to provide employment to the petitioners in the vacant sanctioned Group-C & Group-D posts, in the various Departments of the Government of Tripura;

(iii) Issue Rule, calling upon the respondents and each one of them, to show cause as to why a Writ of Prohibition and/or in the nature thereof, for restraining/prohibiting the respondents, from acting in any manner, in furtherance of the impugned Advertisements dated 27.11.2020 & 03.12.2020 (Annexures-5 & 6 respectively supra);

(iv) In the Ad-interim, and thereafter, in the interim, after hearing the parties, an order in terms of Relieves iii & iv supra;

(v) Call for the records appertaining to this petition;

(vi) After hearing the parties, be pleased to make the Rule Absolute in terms of i, ii, iii & iv".

[3] The petitioners are among those 10,323 terminated ad-hoc teachers, who were involved in a series of litigations regarding their nature of appointment and subsequent termination. The factual background of the present writ petition may be briefly stated:

[3.1] Present petitioners amongst others were appointed as teachers in the year 2010 and 2014. Many unemployed youths who participated in the selection process and not favoured with the appointments had challenged the appointment of the petitioners alleging nepotism, large scale irregularities, illegalities and arbitrariness committed by the official respondents. A Division Bench of this High Court ultimately held that the appointments of the petitioners along with other 10,323 teachers were illegal, irrational and arbitrary and therefore, directed the State- Government to terminate the appointments of the petitioners along with other similarly situated teachers.

[4] The so-called teachers preferred Special Leave Petition [SLP, for short] before the Hon'ble Supreme Court. The Supreme Court upheld the judgment of the High Court. However, the State-Government with the permission of the Supreme Court extended the period of service of those terminated teachers from time to time appointing them as ad-hoc teachers till fresh recruitments were made, but ultimately, they were given good-bye. It is pertinent to mention herein that the Supreme Court has directed the State-Government to give age relaxation in the matter of appointments of the terminated teachers for appearing in the selection

process against any posts under any advertisements issued time to time by the State authorities till 31.03.2023.

[5] On the aforesaid background, these three petitioners have filed the present writ petition pursuant to an averment made by the State- Government in an affidavit submitted before the Supreme Court while responding the SLP filed on behalf of 10,323 terminated teachers.

[6] Mr. Deb, learned Senior Counsel appearing for the petitioners has drawn my attention to the averments made by the respondents at para-17 of the State-affidavit filed before the Supreme Court [Annexure-2 to the present writ petition], which is reproduced here-in-below, for convenience, in extenso:

"17. The State-Government, on 16.07.2020, has reached the decision to also submit the following for the permission/approval by this Hon'ble Court:

(i) Permit the State-Government to allow relaxation in other conditions in Recruitment Rules as per need and justification.

(ii) Permit the State-Government to appoint the discharged ad- hoc teachers against vacant Government posts as per eligibility directly without open advertisement."

[7] Mr. Deb, learned Senior Counsel emphasizing much upon the averments made in sub-para (ii) of paragraph-17 as reproduced hereinabove, eloquently has tried to persuade this Court that in view of the decision taken on 16.07.2020, the State government is under obligation to appoint the terminated teachers against any vacant posts directly without publication of open advertisement as per their eligibility. To a pointed question about other grounds to support the present case, learned Senior Counsel candidly submitted that entire reliefs sought for by the petitioners are solely based on the decision of the government reflected in sub-para (ii) of paragraph-17 as stated supra. It leads me to

further look at the prayers made by the State-Government in the same affidavit filed before the Supreme Court.

"It is therefore most respectfully prayed that your Lordships may graciously be pleased to:

(A) Permit the State-Government to consider and appoint these discharged ad-hoc teachers, to vacant sanctioned Group- C/Group-D posts in the services of the State of Tripura on fulfillment of the eligibility conditions and with age relaxation wherever it is required;

(B) Permit age relaxation, in respect of such appointments as prayed hereinabove, of the ad-hoc teachers against sanctioned vacant non-technical Group-C and Group-D posts in different State-Government Departments;

(C) Pass such other order or direction as may be deemed fit and proper in the facts and circumstances of the case."

[8] Noticeably, during pendency of SLP before the Supreme Court, contempt petitions also were filed by the representatives of the terminated teachers. Those contempt petitions along with SLP were tagged up and were disposed of by a common judgment.

[9] In the said judgment, the observations made by the Supreme Court in paragraphs 17, 18, 19 and 20, appear to be very significant for the disposal of the present writ petition, which are reproduced hereunder, in verbatim:

"17. The questions concerning legality and validity of the entire selection process and the appointments of about 10,323 teachers were gone into in detail in Tanmoy Nath. The findings rendered by the High Court and its conclusions were accepted by this Court while dismissing the appeals arising therefrom. Though the services of the concerned teachers were initially protected only upto 31.12.2017, accepting the plea made on behalf of the State, the concerned date was extended from time to time. It is a matter of record that the services of such candidates now stand terminated. In terms of the directions issued in Tanmoy Nath and appeal arising therefrom, the State is obliged to conduct selection process in which the concerned candidates will be entitled to participate with age relaxation. The age relaxation has now been afforded by the State in all selections till 31.03.2023, which benefit is quite adequate and proper.

18. In our view, considering the fact that the very selection and appointments were found to be illegal and invalid, no other

advantage can be conferred upon the concerned candidates. It must be noted that the attempt on part of the State in offering certain alternate employment is not to degrade the teachers but some solace is being offered even in cases where the candidates do not succeed in the selections to the posts of teachers. The candidates, if they are otherwise competent and eligible, will certainly have every opportunity till 31.03.2023 to get selected for the posts of teachers in the State and by way of additional benefit those who are unsuccessful in such attempts may retain the alternate employment. In our view, it does not amount to any degradation.

19. Though the notice was confined to the question of age relaxation as was made clear in the Order dated 07.02.2020, we have considered submissions which were not strictly confined to said question. We, however, do not find any substance in the contentions, which are therefore rejected.

20. Consequently, these appeals and M.A. (D) No. 11372 of 2020 are dismissed without any order as to costs."

[10] Now, on careful reading and appreciation of the observations and directions made by the Supreme Court in the paragraphs extracted hereinabove, the following materials are emerged:

(i) The Supreme Court re-appreciating the submissions advanced by the learned counsel appearing for the parties to the lis re- asserted the conclusions made by the Division Bench of this High Court terminating the services of the petitioners and other similarly situated teachers;

(ii) Supreme Court clarified that the State government is obliged to conduct selection process in which the concerned candidates i.e. the petitioners and other similarly situated terminated teachers shall be entitled to participate with age relaxation and no relaxation has been given to other eligibility criteria mentioned in the respective Recruitment Rules applicable for the posts to be advertised by different State Government departments;

(iii) Only age relaxation has been afforded to the terminated teachers in all selections till 31.03.2023;

(iv) The Supreme Court has categorically observed that this benefit of age relaxation is adequate and proper;.

(v) From the judgment of the Supreme Court it is clear that the Supreme Court did not confine itself with the question of age relaxation only. The Supreme Court also heard and considered the averments made by the State-Government, particularly, in sub-para (ii) of paragraph-17 of the affidavit filed by the State-Government and the prayers thereof in the said affidavit. But the Supreme Court had simply rejected those averments i.e. the permission sought for by the State- Government to appoint those 10,323 teachers directly without following the Recruitment Rules or in violation of established employment norms. The Supreme Court while passing the judgment had noticed the creation of different posts of different categories in various State-Government departments; and

(vi) In other words, the Supreme Court for obvious reasons had rejected the decision of the state government taken on 16.07.2020 seeking permission to empower the government to appoint the terminated teachers including the petitioners "directly without open advertisement";

(vii) Apart from giving opportunity to the terminated teachers to appear in the selection process against the posts of teacher, the Supreme Court has afforded opportunity to those terminated teachers to appear in the selection process against any notified vacancies to be advertised time to time by the State Government departments till 31.03.2023. The Supreme Court has observed that it would not amount to degradation of the teachers. According to this Court, "alternate appointment" means and relate to the posts i.e. Group-C and Group-D posts existed in various government departments other than teachers;

(viii) From the observations of the Supreme Court, it is clear that the terminated teachers should not feel degraded to appear in the selection process against any posts to be advertised by the various departments of the State-Government, if they fail to succeed in the selection to the post of teachers. The Supreme Court has further observed that this advantage was a kind of solace offered by the State Government itself. In my opinion, the state government with an open mind and positive attitude has opened different avenues so that the terminated teachers get opportunities to be appointed against various categories of posts under different government departments.

[11] Having analyzed the observations and directions of the Supreme Court in the preceding paragraphs, in my opinion, this Court cannot reinterpret or re-read the orders otherwise. It has become crystal clear, that the Supreme Court did not accede to the request of the State- Government to permit them to appoint the terminated teachers directly without following the Recruitment Rules or following the established employment norms.

[12] Proceeding further, I am constrained to observe that the averments made in the affidavit filed by the State-Government before the Supreme Court as reproduced in (ii) of paragraph-17 and the prayers made thereon seeking permission to appoint the terminated teachers without following normal Recruitment Rules, according to me, is contrary to the established legal principle of employment. Furthermore, no Government can plead or take any decision which is not in conformity to the doctrine of established norms of public employment as enshrined in Article-14 & 16 of the Constitution of India. Any such decision being contrary to Constitutional scheme would be declared as null and void and ultra vires to Constitution.

[13] In the case in hand, it is seemingly appears that the state legislature had taken a decision only to seek permission from the Apex Court to appoint the terminated teachers ignoring the constitutional provisions regarding employment, which was negated by the Supreme Court as emanated from the judgment itself. The said decision cannot in any way obligate the State government to implement it, nor the Court can direct the State government to act upon the decision which was not accepted by the Supreme Court. Furthermore, such decision to seek permission as narrated hereinabove did not create any vested or enforceable right upon the petitioners to ask for mandamus compelling the government to enforce its decision. "Mandamus" as articulated in Article 226 of the Constitution of India empowers the High Court to issue writ in case of breach of fundamental rights of any citizen by the state. The State government can never take any decision in disregard of Article 14 and 16 of the Constitution of India. Article 16(1) envisages that "There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State". I re-iterate that any attempt to take decision to appoint anyone or any class of persons, in the instant case involving the petitioners, will offend Arts. 14 and 16, and in such a situation, the Court will not hesitate to prevent such decision protecting the Constitutional scheme of public employment as enshrined under Article 16 of the Constitution of India. Mandamus will not lie to compel the State government or any authority to do something which it has no power or jurisdiction under the law to do.

[14] Through the present petition, the petitioners have tried to ask this Court to re-open the finding of facts and law already decided by Supreme Court, thereby making the petition frivolous and vexatious compelling the Court to dismiss the same in limine with cost. However, considering the present position of the terminated teachers including the petitioners, I

refrain myself from imposing any cost upon the petitioners in spite of moving such frivolous petition apparent on its face.

[15] In the above background of law and facts, the State Government and its recruiting agencies as well as the terminated teachers including the petitioners are directed to respect the observations and directions made by the Hon'ble Supreme Court in its true sense and spirit, which are further boiled down and encapsulated in the preceding analysis of this order.

[16] Article 16 of Constitution of India as extracted here-in-above is the soul of public employment policy and no government or statutory authorities can offend it, and the High Court in exercise of its plenary jurisdiction under Article 226 of Constitution of India cannot ask the State to act upon any such decision which is not authorized by law. It is understood that State's highest executive authority out of sympathy or otherwise apparent in its decision taken on 16.07.2020 was very keen to appoint those terminated ad-hoc teachers directly without open advertisement, which attempt was thwarted by the Supreme Court even clothed with its plenary power under Article 142 of the Constitution of India only in its quest to uphold the rule of law. The High Courts being conferred with similar power by virtue of Article 226 of the Constitution are to enforce the rule of law and ensure that the state and other statutory authorities discharge its functions in accordance with law. The Constitutional Courts are also the protector of the rule of law apart from safeguarding the rights conferred by Part-III of the Constitution. As a corollary, the prayers made by the petitioners in the present writ petition cannot be acceded to at all.

[17] In the result, the instant writ petition is dismissed being devoid of merits. This Court hopes and trusts that good sense prevails over the

petitioners, and work hard to participate in open competitions and to get success.

There shall be no order as to costs.

JUDGE

A.Ghosh