Abul Bashar Zia Uddin vs The State Of Tripura And 2 Ors
2021 Latest Caselaw 275 Tri

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                     HIGH COURT OF TRIPURA
                           AGARTALA

                           WP(C) No.797/2020

1. Abul Bashar Zia Uddin,
   S/o - Lt. Masaddar Ali, R/o Vill - Tilagaon, P.O - Tilabazar,
   P.S- Irani, Kailashahar, Unakoti Tripura, PIN- 799281.
2. Suman Debnath,
   S/o Anil Ch. Debnath, resident of Village - Niharnagar,
   P.O - Anandapur, P.S - P. R. Bari, Belonia, South Tripura,
   PIN- 799157.
3. Bidhan Sinha,
   S/o Bidya Kanta Sinha, R/O Vill & PO and PS - Kumarghat,
   District - Unakoti Tripura, PIN - 799264.
4. Milan Dey,
   S/o - Lt. Udai Chandra Dey, Vill & P.O - Kamalnagar,
   P.S - Sonamura, District - Sepahijala, Tripura, PIN - 799131.
                                                   .............. Petitioner(s).
                                    Vs.

1. The State of Tripura and 2 Ors.
   To be represented by the Secretary, Education(School) Department,
   Government of Tripura, New Secretariat Building, New Capital
   Complex, Kunjaban, Agartala, West Tripura, PIN- 799010.
2. The Director,
   Secondary Education, Govt. of Tripura, Office Lane, Agartala,
   West Tripura.
3. The Additional Secretary,
   Education(School) Department, Govt. of Tripura, New Secretariat
   Building, New Capital Complex, Kunjaban, Agartala, West Tripura,
   PIN- 799010.
                                                  .............. Respondent(s).
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                              _B_E_ F_O_R_E_
      HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
      For Petitioner(s)                : Mr. P Roy Barman, Sr. Advocate,
                                         Mr. Samarjit Bhattacharjee, Advocate,
                                         Mr. Kawsik Nath, Advocate.
      For Respondent(s)                : Mr. S S Dey, Advocate General,
                                         Mr. D Bhattacharya, Govt. Advocate,
                                         Ms. A Chakraborty, Advocate.
      Date of hearing & Judgment       : 4th January, 2021.
      Whether fit for reporting        : No.


                          J U D G M E N T ( O R A L)

Petitioners have challenged a show cause notice dated 20th

November 2020, issued by the Additional Secretary to the Government of

Tripura, Education Department, calling upon the petitioners to show cause

why, in view of the judgment of this Court in case of Tanmoy Nath and

Ors Vs. State of Tripura and Ors. reported in (2014) 2 TLR 731, their

services should not be terminated.

[2] Brief facts leading to this petition are as under :

All the petitioners are Assistant Teachers (Biology/Pure Science)

appointed in Government schools. They are working in the said position

since 2012. They were engaged pursuant to a public advertisement issued

by the Government of Tripura on 25th August, 2010 notifying 870

vacancies of Assistant Teachers (Pure Science) and 580 vacancies of Page - 3 of 11

Assistant Teachers, B.Sc.(Biology). The petitioners applied in response to

the said advertisement, were selected and appointed on the respective posts.

One such appointment order of the petitioner No.1 dated 29th March, 2012

is produced at Annexure - 3. The petitioners were initially placed in fixed

salary. Since after completion of 5 years of service on fixed salary basis the

department did not grant them regular scales of pay, these petitioners had

filed WP(C) No.394/2020. Several other similarly situated Teachers had

filed independent petitions. These connected petitions, lead petition being

WP(C) No.89/2020 of Sri Snehangshu Das and others came to be disposed

of by the Single Judge by a common judgment dated 18th December, 2020.

Directions were issued for granting regular scales of pay to the Teachers

after completion of 5 years of service in fixed salary. After this was done,

the department issued the impugned show cause notices. According to the

department, these petitioners are covered by the decision of this Court in

case of Tanmoy Nath (supra). The petitioners contend that the judgment of

this Court in case of Tanmoy Nath was specific and applied only to the

selections and appointments which were in challenge before the Court.

Petitioners' appointments were never in challenge and could not be

disturbed on the basis of the said judgment of the High Court.

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[3] Having heard learned counsel for the parties and having perused

materials on record, I find that the respondents have committed a serious

error in issuing the impugned show cause notices. Before I elaborate my

reasons for such conclusion, it would be appropriate to record that

ordinarily the Court does not interfere at a stage when the administration

has merely issued a show cause notice. The Court is always reluctant in

interjecting at a stage when the authorities are yet to make up their mind

after receiving response from the noticee. However, there must be cases

where for strong reasons this self-imposed restriction is departed from. If

the notice suffers from lack of inherent jurisdiction or on admitted facts no

adverse action can be taken, surely, it would be wholly futile to insist that

the petitioner must go through the formalities of responding to the show

cause notice and inviting a decision on the same.

[4] With this background, we may revert to facts of the case on hand.

As noted, undisputable position is that all the petitioners were appointed as

Science Teachers in response to an advertisement issued by the

Government of Tripura on 25th August, 2010. Actual appointments were

made in March, 2012. In Tanmoy Nath, the Division Bench of this Court

on an intra-Court appeal, had examined the legality of large number of

Teachers appointed by the Government of Tripura in the schools. These Page - 5 of 11

appointments were made pursuant to an advertisement issued on 23 rd

September, 2009. Prior to this advertisement also, Government of Tripura

had made two unsuccessful attempts at filling up the posts of Teachers

(other than Science Teachers). First of such advertisements was issued on

29th October, 2002 under which vacancies of Graduate and Under Graduate

Teachers were advertised. No appointments were made pursuant to this

advertisement. Second advertisement was issued on 5th April, 2006 when

old vacancies were re-advertised and fresh adjustments of number of

vacancies were made. No appointments in the second attempt were also

made. While, therefore, issuing third advertisement on 23rd September

2009, the State gave two concessions. First, those who had already applied

in response to earlier two advertisements, would not have to apply again

and second, that such candidates would have age relaxation. This third

attempt culminated into large appointments being issued by the State of

Tripura. Some of the unsuccessful candidates challenged the norms of

selection before the Single Judge. The Single Judge found certain

anomalies in the selection process and required the Government to

constitute a high power committee to review the selections. The

Government as well as the original petitioners filed appeals before the

Division Bench. The Division Bench in Tanmoy Nath case found that the

new employment guidelines issued by the Government on 30 th August, Page - 6 of 11

2003 suffered from various defects. Resultantly, the Court was of the

opinion that all appointments of the teachers which were under challenge

before the Court, were required to be set aside. While doing so, in the

interest of the young children who would be studying in the Government

schools, time was granted to the Government to fill up these resultant

vacancies and till then, the existing teachers would continue the same posts.

The issue of number of other Government appointments being

made on the basis of the same employment policy of 30th August, 2003 also

coming under the threat of being disturbed was considered by the Court. In

order to safeguard such appointments the Court made following

clarification :

"127. Since we have set aside the revised employment policy which applies to a large category of posts and not merely to teachers, we would like to make it clear that our judgment shall be prospective in nature and shall not affect the appointments already made unless the said appointments are already under challenge before the Court on the ground that the employment policy is illegal."

[5] The decision in case of Tanmoy Nath (supra) thus was confined

only to those teachers whose appointments were under challenge before the

Court. The appointments of the petitioners and other similarly situated

Science Teachers recruited pursuant to advertisement dated 25th August, Page - 7 of 11

2010 were nowhere under challenge before the High Court in case of

Tanmoy Nath.

[6] Even the Government has up till now viewed the situation

similarly. It may be recorded that in case of Sri Anjan Deb and Ors Vs.

State of Tripura and Ors. in WP(C) No.1110/2018, some of the

Government Teachers who were covered by the judgment of High Court

case in case of Tanmoy Nath, had approached the Court making a

grievance that they were not sent for in-service training when private

respondents who were Science Teachers similar to the present petitioners,

were sent for such training. In such petition, the stand of the Government

was that the petitioners therein were under termination by virtue of the

judgment of this Court in case of Tanmoy Nath and were temporarily

protected on account of extensions granted by the Supreme Court whereas,

the Science Teachers in Government schools were not covered by the

judgment of this Court in the case of Tanmoy Nath. The Government had

filed a detailed reply in the said petition in which it was contended as

under:

"9. That, in reply to the contentions made in paragraph 8 of the Writ Petition, I state that the Respondent No.2 vide Notification No.F.1.(1-48)-SE/E(NG)/2010 dated 25th August, 2010 invited applications from the eligible Indian Nationals and permanent residents of Tripura for 1450 posts of Assistant Teacher, Page - 8 of 11

B.Sc.(Pure)-870 post and Assistant Teacher, B.Sc.(Bio)-580 posts. In the said Notification, qualification for the post of Assistant Teacher, B.Sc.(Pure) was confined "Graduate in Science from a recognized University (with Physics, Chemistry, Mathematics or Statistics," and for the posts of Assistant Teacher, B.Sc.(Bio) it was Graduate from a recognized University (with Zoology, Botany, and Physiology). In the said notification dated 25th August, 2010 it was also stated that the candidates who applied in 2002, 2006 and 2009 for the post of Graduate Teacher on fixed pay basis need not apply again for the said 1450 posts. However, they shall have to appear before a Interview Board afresh to be constituted by the Department subsequently. Total 6,784 applications were received for 1450 posts Assistant Teacher. Subsequently, the state Respondents decided to fill up 1000 posts of Assistant Teacher out of 1450 posts.

Accordingly, the Finance Department, Govt. of Tripura gave concurrence for filling up of 1000 posts of Assistant Teacher. The Council of Ministers in its meeting held on 7th February, 2012 also approved the proposal of the Department for filling up of 1000 posts only. Thereafter, the Respondent No.2 appointed 1000 candidates to the post of Assistant Teacher as per selection by the Interview Boards.

......................................................

13. That, in reply to the contentions made in paragraph 14 of the Writ Petition, I denied that the Hon'ble High Court in its judgment dated 07.05.2014 set aside the entire selection process of Assistant Teacher (Science), 2012. It is submitted that the Hon'ble High Court in its judgment dated 07.05.2014 has set aside the selection process of Post Graduate Teacher, Graduate Teacher and Under Graduate Teacher appointed in the year 2010 and 2013-14 only.

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14. That, in reply to the contentions made in paragraph 16 to 20 of the Writ Petition, empathetically I denied that any discrimination has been made with the petitioners. It is submitted that the service of the petitioners have been terminated as per order of the Hon'ble Supreme Court since they were appointed in the year 2010. But the proforma respondents were not appointed in the year 2010 or 2013-14. Therefore, they are not come under the purview of the order dated 29.03.2017 of the Hon'ble Supreme Court of India and therefore, the petition of the petitioners are liable to be dismissed and rejected."

[7] One may also notice that this was one of the objections of the

Government in case of Snehangshu Das and Ors(supra) wherein the

petitioners were seeking the benefit of regular pay scales after completion

of 5 years of service in fixed salary as Science Teachers. While opposing

the prayers on various grounds the Government also tried to agitate that

these Science Teachers also would be covered by the judgment of this

Court in case of Tanmoy Nath(supra). This issue was considered by the

Court in the said judgment in following manner :

" .....................................

16. I may deal with the Government's objection with respect to the nature of posts on which the petitioners are engaged last since this would require some detailed discussion. In the context of the judgment of this Court in case of Tanmoy Nath(supra), the Government's objection is not valid at all. It is undisputed that in the said litigation what was under challenge was the recruitment Page - 10 of 11

and engagement of large number of undergraduate, graduate and postgraduate teachers which the Division Bench of this Court found wholly arbitrary and consequently set aside all such appointments. Only reprieve granted to the concerned teachers was of age relaxation for future recruitment processes. If they are selected during such recruitments, their past services would be protected. This judgment of this Court was confirmed by the Supreme Court. Only modification was the extension of time for filling up the posts and corresponding age relaxations. However, in the said litigation the appointments of the petitioners were never challenged and, therefore, never examined. Even if these petitioners were engaged by following the same Employment Policy of 2003 which the Court found objectionable in case of Tanmoy Nath(supra), their appointments cannot be treated as defective or impermissible in any manner. The Government never questioned such appointments. In fact, the Government had challenged the judgment of this Court in case of Tanmoy Nath(supra) and, therefore, had tried to save the appointments of the concerned teachers. Be that as it may, as far as the present petitioners are concerned, neither any private individual nor the Government at any stage has questioned the legality of their appointments. In any case, the Government cannot continue them in service but deny them regular wages by suggesting that their appointments were not legal.

17. One may also notice that some of these teachers were sent for training in IGNOU sponsored by the Government. Some other teachers, the teachers whose appointments were set aside by the High Court in Tanmoy Nath(supra), and were continued on ad hoc basis by virtue of interim orders passed by the Supreme Court, questioned these nominations by the Government by filing WP(C) No.1110 of 2018. According to these teachers there was parity between the petitioners and the respondents therein. In Page - 11 of 11

order to justify its action of nominating the concerned teachers to the exclusion of the petitioners therein, the Government in the reply filed in the said petition had stated as under:

.......................................... Thus, even the Government represented that the cases of these petitioners were not covered by the judgement in case of Tanmay Nath (supra). In view of this, the first objection of the Government in granting the regular pay scales to the petitioners is turned down."

[8] Once this issue was raised by the Government before the High

Court and was also decided by the High Court, it was thereafter not

permissible for the administration to issue a show cause notice which is

based on the same issue. This is one more reason why the administration

cannot be permitted to proceed with the show cause notices.

Under the circumstances, impugned show cause notices are set

aside. Petition is allowed and disposed of accordingly. Pending

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

( AKIL KURESHI, CJ )

Sukehendu