Andrew Debbarma vs The High Court Of Tripura
2023 Latest Caselaw 349 Tri

                      HIGH COURT OF TRIPURA
                            AGARTALA
                           WP(C) 374 OF 2021
Andrew Debbarma, son of Hemanta Debbarma,
R/O Village-Nishan Chandra Para, P.O.-Mandai,
P.S. Mandai, District-West Tripura, PIN-799045,
Age-31 years
                                                              ....Petitioner.
                          Vrs.

1. The High Court of Tripura, to be represented by the
Registrar General, the High Court of Tripura, Agartala,
West Tripura.

2. The Registrar General, High Court of Tripura,
Agartala, West Tripura.

3. Sri Satadip Saha, System Assistant, High Court of Tripura,
Agartala, West Tripura, presently posted in the O/o of the
District & Sessions Judge's Court, Sepahijala Judicial District,
Sonamura.

4. Kripankar Majumder, System Assistant, High Court of Tripura,
Agartala, West Tripura.
                                                     ....Respondents.

WP(C) 375 OF 2021 Ruhini Debbarma, D/o Lt. Rabi Kumar Debbarma, R/O Village-Khutamara, P.O. Birendra Nagar, P.S. Jirania, Sub-Division-Jirania, District-West Tripura, PIN-799045, Age-32 years.

....Petitioner.

Vrs.

1. The High Court of Tripura, to be represented by the Registrar General, the High Court of Tripura, Agartala, West Tripura.

2. The Registrar General, High Court of Tripura, Agartala, West Tripura.

3. Sri Satadip Saha, System Assistant, High Court of Tripura, Agartala, West Tripura, presently posted in the O/o of the District & Sessions Judge's Court, Sepahijala Judicial District, Sonamura.

4. Kripankar Majumder, System Assistant, High Court of Tripura, Agartala, West Tripura.

....Respondents.

Present:

(In both the writ petitions) For the petitioners : Mr. P. Roy Barman, Sr. Advocate.

Mr. Samarjit Bhattacharjee, Advocate.

For the respondents : Mr. B. N. Majumder, Sr. Advocate.

Mr. D.J. Saha, Advocate.

 Date of hearing               : 15.03.2023

 Date of delivery of           : 28.04.2023
 judgment

 Whether fit for reporting     : Yes


             HON'BLE MR.JUSTICE T.AMARNATH GOUD
              HON'BLE MR.JUSTICE ARINDAM LODH

                          JUDGMENT & ORDER
[ Arindam Lodh, J]

Since similar and identical questions are involved, both the

writ petitions are taken up together for disposal by this common judgment

on consent of learned counsels appearing for the parties.

2. By way of filing the present writ petitions, the petitioners have

prayed for quashing the Notification dated 25.03.2021 issued by the

Registrar General, High Court of Tripura, the respondent no.2 herein, in

respect of the appointment of the private respondent nos. 3 and 4 in the post

of System Assistant.

3. Brief facts of the case of the petitioners are that the respondent

no.2 invited applications from the eligible candidates vide Advertisement

dated 29.05.2019, for filling up four posts of System Officer, Group-B

Non-Gazetted and 11 posts of System Assistant, Group-C Non-Gazetted

under e-Courts Services of the High Court of Tripura. Out of 11 posts of

System Assistant, 04 posts are for UR category, 06 posts are reserved for

Scheduled Tribes and 01 post is reserved for Scheduled Caste. In the

Advertisement [Annexure-1 to the writ petition], it was mentioned that if

no suitable candidate is found from the reserved categories as aforesaid, the

posts will be filled up by the candidates other than those of the Scheduled

Tribes and Scheduled Castes as per the High Court of Tripura e-Courts

Services (ACC) Rules,2013 (as amended).

3.1 Petitioners appeared in the written examination and having

successful in that examination, they were asked to appear in the practical

and viva voce test to be held on 14.02.2021 vide call letter dated

08.02.2021 issued by the Registrar, (Admn, P & M), High Court of

Tripura. After completion of selection process, the High Court of Tripura

published common merit list for the recruitment to the post of System

Assistant under e-Court service vide notification dated 17.02.2021. In the

said merit list the name of the petitioner Sri Andrew Debbarma in WP(C)

No.374/2021 appeared at Sl.No.52 and Smt. Ruhini Debbarma, the

petitioner of WP(C) No.375/2021 appeared at Sl. No.51. Here, the main

grievance of the petitioners are that out of 6(six) posts which were reserved

for ST candidates, 4 (four) posts have been filled up from the ST category

candidates and two posts have been filled up from the UR category

candidates though they have obtained required marks. No reason has been

assigned as to how the petitioners were found to be not suitable.

4. Heard Mr. P. Roy Barman, learned senior counsel assisted by

Mr. Samarjit Bhttacharjee, learned counsel appearing for the petitioners.

Also heard Mr. B. N. Majumder, learned senior counsel assisted by Mr.

D.J. Saha, learned counsel appearing for the respondents-High Court of

Tripura.

5. Mr. Roy Barman, learned counsel at the outset submitted that

the respondents had infringed the constitutional right of the petitioners

guaranteed under Articles 14 and 16 of the Constitution of India. Mr. Roy

Barman, further submitted that Rule 17 of the High Court of Tripura e-

Courts Services (appointment, condition of service & conduct) Rules, 2013

(for short, Rules, 2013) is also arbitrary as blanket power has been given to

the appointing authority to fill up the posts reserved for SC/ST candidates

by the candidates other than those of Scheduled Castes and Scheduled

Tribes and by not defining as to what is meant by 'suitable candidates'. Mr.

Roy Barman, learned senior counsel further emphasized that Rule 17 of the

Rules, 2013 is to be read in consonance with the provisions of the Tripura

Scheduled Castes and Scheduled Tribes Reservation Act,1991 ( for short,

the Act of 1991) & Tripura Scheduled Castes and Scheduled Tribes

Reservation Rules,1992 (for short, the Rules of 1992) framed there-under.

Again, Mr. Roy Barman, learned senior counsel pointed out that from the

final merit list according to marks obtained by the candidates in the

selection process for recruitment to the post of System Assistant, it was

revealed that Jiban Mohan Jamatia appeared at Sl.No.17 got 58.62% marks,

Bidhata Sagar Debbarma at Sl. No.44 obtained 48.12% and Niresh

Debbarma at Sl. No.45 obtained 47.75% marks. Whereas, the petitioners

Andrew Debbarma appeared at Sl.No.52 having scored 45.37% and Smt.

Ruhini Debbarma at Sl. No.51 having scored 45.87%, were held to be

found not suitable which is not discernible.

6. Appearing on behalf of the respondents, Mr. Nandi Majumder,

learned senior counsel has pressed into Service Rule 19 of the Rules, 2013,

which postulates "Interpretation" clause. Mr. Nandi Majumder, learned

senior counsel further submitted that upon completion of the practical test

and viva-voce, the Recruitment Committee had prepared merit list of the

candidates who secured 40% marks in average in written examination,

practical test and viva-voce. The said merit list prepared by the Committee

had been approved by the Hon'ble Chief Justice as per order dated

17.02.2021. Since the petitioners had secured only 45.37% and 45.87%

marks respectively, in total, after completion of written, practical and viva

voce test, they were found to be not eligible by the Committee for

appointment to the post of System Assistant as the Committee had decided

to recommend the appointment of those reserved category candidates who

secured the cut-off mark of 47% in aggregate in written examination,

practical and viva-voce test.

7. Here, the grievance of the petitioners is that no cut-off mark

was fixed in the advertisement which debarred the authority concerned to

determine the cut-off mark after completion of the selection process.

8. In the instant case, many candidates became successful and

obtained the required qualifying marks. The post of System Assistant is

highly technical. The candidates who would be appointed must have

requisite expertise to fulfil the purpose the High Court wanted to achieve.

The committee of experts while taking the practical examination and

interview awarded marks in favour of all the candidates and prepared the

merit list. Since the posts are limited, the merit list was forwarded to the

Chief Justice of the High Court to make a policy decision to consider the

appointment of the best suitable candidates. The Chief Justice in exercise

of its power under Article 229 of Constitution of India read with Rule 19

(Interpretation Clause) of Rules, 2013 had given a note in the file that the

candidates who obtained minimum 47% of the mark would be considered

for selection/appointment so that the purpose of the High Court would be

sub-served.

9. The petitioners, Andrew Debbarma [in WP(C) No.374 of

2021] scored 45.37% and Smt. Ruhini Debbarma [in WP(C) No.375 of

2021] scored 45.87%, that is, below the cut-off mark.

It is pertinent to mention herein that one candidate, namely Sri

Bubagra Jamatia, who secured more than 47% mark, was considered for

appointment since the mark obtained by him was within the cut-off mark.

10. As we said earlier, in absence of any rules framed by the High

Court or the Chief Justice, the direction of the Chief Justice operates the

field of appointment to any post or posts. The Chief Justice is well within

his jurisdiction in deciding the criteria or parameters in determining the

merits for filling up the posts of System Assistant/System Officer, and, in

fact, that is the most befitting criterion for filling up the posts which takes

into consideration the merit as of prime importance. There is no

justification in striking down such a criterion on the ground of lack of non-

mentioning of the cut-off mark in the advertisement notified by the High

Court.

11. In the case in hand, it is not the case of the petitioners that the

Chief Justice of the High Court had exercised his power vested upon him

under Article 229 of Constitution of India with bias to favour one or more

candidates, which, if substantiated, may vitiate the entire selection process.

12. In view of the aforesaid facts, we find no substance in the

submission of learned senior counsel appearing on behalf of the petitioners,

in the context of the present subject in dispute, that since the power of the

Chief Justice under Article 229 is not unfettered power, he cannot abruptly

determine or fix the cut-off mark for selection of suitable candidates.

13. In the light of the principle discussed and drawn here-in-

above, in the opinion of this Court, the action of the High Court in fixing

the cut-off mark and selecting the candidates, who obtained 47% marks or

above, cannot be said to be arbitrary exercise in absence of any allegation

of malice or bias to do favour to any of the candidates appeared in the

selection process. The policy decision of the Chief Justice of the High

Court has been uniform in respect of all the qualified candidates, and thus,

it does not offend Articles 14 and 16 of Constitution of India.

14. In the present case, we find that the advertisement dated

29.05.2019 was issued by the High Court for filling up 11(eleven) vacant

posts of System Assistant with a condition that the number of posts

advertized might increase or decrease. It is a fact that on the date of

advertisement, out of 11(eleven) posts of System Assistant, 4(four) posts

were for UR category, 6(six) posts were reserved for ST category and

1(one) post was reserved for SC category. However, at the time of

selection, 2(two) posts, that is, 1(one) belonging to UR category and 1(one)

belonging to SC category, had fallen vacant due to the promotion of 1(one)

System Assistant to the post of Sr. Computer Assistant and another due to

the appointment of one System Assistant to the post of System Officer.

Thus, on completion of the recruitment process, total 13(thirteen) vacant

posts of System Assistant lying vacant were filled up. It comes to fore that

5(five) vacant posts under UR category were filled up by the candidates

appearing in Sl. Nos.1 to 5 of the merit list, 2(two) vacant posts of SC

category were filled up by 2(two) SC category appearing in Sl. Nos.6 and 7

of the merit list. Thereafter, 4(four) posts out of the total 6(six) vacant posts

reserved for ST category were filled up by 4(four) ST category candidates

appearing in Sl. Nos.9 to 12(Annexure 6 to the writ petition), who secured

more than 47% of mark i.e. more than the cut-off mark as fixed by the

Chief Justice of the High Court. Since, other ST category candidates

obtained less than 47% of mark i.e. the fixed cut-off mark, 2(two) posts

belonging to ST category were filled up by UR category candidates

appearing in Sl. Nos.8 and 9 of the merit list since both of them secured

more marks than that of the cut-off mark fixed for UR category candidates.

15. Further, we do not find any substance in the submission of

learned senior counsel appearing for the petitioners that Rule 17 of the

High Court of Tripura e-Courts Services(appointment, condition of service

& conduct) Rules, 2013, is arbitrary and that it provides un-canalized,

sweeping and arbitrary discretionary power to the appointing authority.

16. Mr. Roy Barman, learned senior counsel appearing for the

petitioners has further drawn our attention to Sub-Rule 8(a) of Rule 8 of the

Rules, 1992 which provides that, if a candidate belonging to Scheduled

Caste or Scheduled Tribe is not available by exchange method, then, the

vacant post may be filled up according to the concerned recruitment rules

and proviso to Rule 8. Sub-rule (a) of Rule 9 provides that, if the

appointing authority after observing the procedure of Sub-Rule (8)

considers it necessary to fill any vacant posts by candidates of un-reserved

category in the exigency of public service, may initiate a proposal for de-

reservation of vacant post reserved for Scheduled Castes and Scheduled

Tribes in the manner indicated therein.

17. Most significantly and noticeably, the legislature in both Sub-

rule 8(a) of Rule 8 and Sub-rule (a) of Rule 9 of the Rules,1992 used the

word 'may', which is not the word of compulsion. The word 'may' is

enabling word and it only confers capacity, power or authority and imply

discretion [Madanlal Fakrichand Dudhediya v. S. Changdeo Sugar Mills,

AIR 1962 SC 1543, p. 1557: 1962 Supp (3) SCR 973; Chinnamar

Kathiam v. Ayyavoo, AIR 1982 SC 137, p. 140; 1982 (1) SCC 159]. It is

used in a statute to indicate that something may be done which prior to it

could not be done. In view of this, in our opinion, in a certain case, the

authority concerned may apply the exchange method in filling up certain

post or posts or may initiate a proposal for de-reservation of vacant posts

reserved for Scheduled Castes and Scheduled Tribes in the event of non-

availability of suitable candidates from Scheduled Caste and Scheduled

Tribe candidates. As a corollary, the use of word 'may' in these provisions

is quite indicating that the said provisions are not mandatory which are

strictly to be followed. It is the discretion vested upon the authority or body

whether in a given circumstance the power of exchanging method and de-

reservation of posts as contemplated under Sub-rule 8(a) of Rule 8 and

Sub-rule (a) of Rule 9 of Rules, 1992 is required to be exercised or not.

18. At this juncture, it would be useful to reproduce Rule 17 of the

High Court of Tripura e-Courts Services (appointment, condition of service

& conduct) Rules, 2013, which reads thus:

"17. Reservation- Except as otherwise provided in these rules, all appointments by absorption or by the other modes of direct recruitment to the service and promotion under these rules shall be subject to the provisions of the Tripura Scheduled Castes and Scheduled Tribes Reservation Act, 1991 and the Rules made there under. If no such suitable candidate is available, the posts will be filled up by the candidates other than those of the Schedule Caste and Schedule Tribe. In case of absorption of all the existing staff, they will be absorbed or appointed irrespective of whether required SC/ST Candidates have been appointed or not."

19. According to us, Rule 17 of the Rules,2013 is neither

inconsistent to sub-rule 8(a) of Rule 8 of the Rules,1992 nor Rule 17 give

un-canalised power to the Chief Justice of the High Court. As we already

have observed here-in-above, that the provisions envisaged under Sub-rule

8(a) of Rule 8 and Sub-rule (a) of Rule 9 of the Rules,1992 is not

mandatory in nature. The Chief Justice of the High Court in exercise of its

power under Article 229 of Constitution of India exercised his discretion in

prescribing the methodology as regards the appointment and filling up the

posts of System Officer and System Assistant embodied in Rule 17 of the

Rules,2013. This discretionary power, the Chief Justice has exercised

considering the expediency of e-Courts Services and, therefore, we find no

substance in the submission of learned senior counsel appearing for the

petitioners that Rule 17 of e-Court Services Rules, 2013 is illegal, arbitrary,

void ab initio and ultra vires to the Act of 1991 and the Rules of 1992.

20. Needless to say, the High Court has to be conscious about the

need of maintaining efficiency in service. As we said earlier, reservation

policy of the State Government in the matter of appointment has been

followed in its strict sense and meaning. Keeping in view the posts being

highly technical which requires highest standard of expertise for

maintaining efficiency in service in the process of administration of justice

and the object the High Court wanted to achieve in digitizing the entire

justice delivery system in the State Judiciary and taking into account its

expediency, the Chief Justice in exercise of its power under Article 229 of

the Constitution of India encrypted the Reservation Rule (Rule 17) in the

Rules, 2013 without disturbing the basic feature embodied in the Act of

1991 and the Rules of 1992 thereof.

21. The makers while drafting our Constitution had visualised

such a situation and for this complete authority has been vested upon the

Chief Justice for appointment of officers and servants of the High Court.

Under Rule 17 of the Rules,2013, the Chief Justice of the High Court, as

such, making the rule that if no suitable candidate is available, the posts of

System Officer and System Assistant can be filled up by the candidates

other than those candidates of Scheduled Castes and Scheduled Tribes

wanted to achieve the object of maintaining highest degree of standard in

the matter of governing e-Courts Services so that quality, competency and

efficiency of the officers holding the posts of System Officer and System

Assistant, etc. are not compromised.

22. We reiterate that in the instant case, there is no allegation of

any bias or arbitrariness in fixing the cut-off mark as stated above by the

Chief Justice and it is a fit case where the Chief Justice has applied his

discretion to fix the cut-off mark to select the most suitable, competent and

efficient candidates to fill up the posts of System Assistant.

23. For the reasons aforestated, and the law thus being analysed

here-in-above, we find no merit in the writ petitions and accordingly, both

the writ petitions are dismissed. However, there shall be no order as to

costs.

             JUDGE                                          JUDGE




sanjay