Smt. Mousumi Sarkar vs The State Of Tripura
2023 Latest Caselaw 615 Tri

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                        HIGH COURT OF TRIPURA
                              AGARTALA
                              WP(C) No.11/2023
Smt. Mousumi Sarkar, wife of Sri Ashok Kumar Das, resident of Dakshin
Charipara, P.O.-Charipara, P.S.-Amtali, Sub-Division-Agartala, District-West
Tripura, PIN-799003, aged about 36 years.
                                                        .........Petitioner(s).
                                  VERSUS
1. The State of Tripura, represented by the Commissioner & Secretary,
Education Department, 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 Commissioner & Secretary to the Education Department, 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, Education Department, Government of
Tripura, having his office at Shiksha Bhawan, Office Lane, P.O.-Agartala &
P.S.-West Agartala, Sub-Division-Agartala, District-West Tripura.
4. Sri Johnson Tripura, Son of Late Kali Kumar Tripura, resident of Sonai
Bazar, Sonai Chari, P.O.-Sonai Bazar, District-South Tripura, PIN-799145.
                                                         .........Respondent(s).

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

For Respondent(s) : Mr. Debalay Bhattacharya, G.A., Mr. Samarjit Bhattacharjee, Advocate.

HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH

Date of hearing and judgment: 09th August, 2023.

Whether fit for reporting : YES.

JUDGMENT & ORDER(ORAL)

Heard Mr. Somik Deb, learned senior counsel assisted by Mrs.

Riya Chakraborty, learned counsel appearing for the petitioner, Mr. Debalay

Bhattacharya, learned Government Advocate appearing for the State

respondents and Mr. Samarjit Bhattacharjee, learned counsel appearing for the

private respondent.

2. The recruitment exercise in question was undertaken by Teachers'

Recruitment Board, Tripura (TRBT), Education (School) Department,

Government of Tripura under an advertisement at Annexure-1 to the writ

petition in the year 2017 for filling up posts of Post-Graduate Teacher in

various educational institutions in the State of Tripura. Petitioner participated

in the recruitment exercise in the subject of History where 123 posts were

notified amongst which 60 posts were allotted to unreserved (UR) category, 19

posts to Scheduled Caste (SC) category, 36 posts to Scheduled Tribe (ST)

category, 4 posts to Physically Handicapped (PH) category and 4 posts were

allotted to Ex-Serviceman (ESM) category. Petitioner belongs to the

unreserved (UR) category. In the merit list at Annexure-2 to the writ petition,

petitioner is shown as having secured 91 marks. 5(five) candidates have

secured 91 marks out of whom 4(four) have been appointed but petitioner has

been left being the youngest. This is the stand of the State-respondents also in

the counter affidavit. The petitioner has, on the other hand, also questioned the

appointment of respondent No.4 who had secured 104 marks in the ST

category as he was not having the requisite qualification of Degree of Bachelor

of Education (Regular) as required under the advertisement. This issue had

crossed the attention of this Court wherein a Division Bench judgment of this

Court vide judgment dated 19.12.2018 passed in WP(C) No.1138 of 2016

[Smt. Sudipa Saha vrs. The State of Tripura & others] and analogous cases

held that the qualification of B.Ed. (Special Education) could not be a valid

eligibility criteria for appointment of a teacher in Senior and Senior Secondary

classes. However, the learned Division Bench did not interfere in the

appointment of candidates by observing as such:

"Further, what is required to be seen are the conditions prescribed at the time of issuance of the advertisement and not the subsequent decision, if any, taken by the government, modifying the conditions which the petitioners fulfill. Well that is for future and not for the past."

(emphasis supplied)

3. Respondent No.4 has pursued the B.Ed. (Regular) upon

permission granted by the employer and has also acquired that qualification.

Later on, he approached this Court in WP(C) No.87 of 2023 with a prayer for

granting regular scale of pay upon completion of 5 years of service. The

learned Writ Court vide order dated 10.02.2023 directed the respondents to

consider his representation. Petitioner herein has however, approached this

Court in the year 2023 after 5 years of the appointment. The journey of

litigation on the issue of qualification of B.Ed. (Special Education) is the

ground taken for excusing her for the delay in approaching this Court. But

delay apart, now from the averments and documents on record, it is apparent

that following the settled principles in case of such nature, the petitioner being

the youngest amongst 5(five) candidates in UR category was not appointed

though all of them had same 91 marks. She appears to have remained silent on

her grievance for a period of 5 years whereafter she has approached this Court

in the year 2023. It is not a case of the petitioner that anyone having lesser

marks than the petitioner has been appointed in the same exercise in the subject

of History in UR category.

4. The second plea raised by the petitioner vis-à-vis respondent No.4

is also not acceptable for the reason that the services of the respondent No.4

and such other candidates who possessed the educational qualification of B.Ed.

(Special Education) on the cutoff date of advertisement were protected by

virtue of the Division Bench judgment of this Court rendered on 19.12.2018 in

the case of Smt. Sudipa Saha (supra). The respondent No.4 seems to have

acquired the qualification of B.Ed. (Regular) after permission from the

employer during his service. At this stage, it is, therefore, not open to question

the eligibility criteria of the respondent No.4 for the purposes of annulment of

his appointment and allow the petitioner to be accommodated on the said post.

5. Mr. Debalay Bhattacharya, learned Government Advocate

appearing for the respondents-State, has also informed that beyond the select

list of 87, unfilled vacancies out of total 123 vacancies for the subject of

History have been carried to subsequent recruitment exercise. In that case, the

plea of the petitioner to consider herself for the unfilled vacancies also cannot

be entertained at this length of time.

6. As such, this Court does not find any merit in the writ petition

which is accordingly dismissed.

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

(APARESH KUMAR SINGH), CJ

PULAK BANIK Date: 2023.08.11 12:13:19 +05'30'