Tripura High Court
Shri Pradip Debbarma vs The State Of Tripura on 25 July, 2024
Author: Arindam Lodh
Bench: Arindam Lodh
Page 1 of 13
HIGH COURT OF TRIPURA
AGARTALA
WP(C) No.507 of 2024
1. Shri Pradip Debbarma,
S/o. Shri Jamini Debbarma of village Ramnath Thakur para, P.O. Jonmejoy
Nagar, P.S. Radhapur, District West Tripura.
2. Shri Moynal Hossasin,
S/o. Late Abdul Hasem of village Ashabari, P.O. Boxanagar, P.S.
Kalamchoura, District-Sepahijala, Tripura.
3. Shri Kanai Lal Das,
S/o. Shri Sudhan Chandra Das, Village & P.O Veluarchar, P.S.
Kalamchoura, District-Sepahijala, Tripura.
....Petitioner(s)
Versus
1. The State of Tripura
Represented by the Chief Secretary, Government of Tripura, New
Secretariat Building, P.O & P.S. N.C.C., Agartala, West Tripura-799010
2. The Secretary, Education Department,
Government of Tripura New Secretariat Building, P.O &P.S. N.C.C,
Agartala, West Tripura-799010.
3. The Director, Directorate of Secondary Education,
Government of Tripura, P.O. Agartala, P.S. West Agartala, District-West
Tripura, 799001.
4. The Director, Directorate of Elementary Education,
Government of Tripura, P.O. Agartala, P.S. West Agartala, District West
Tripura-799001.
....Respondent(s)
For Petitioner(s) : Mr. BN Majumder, Sr. Advocate
Mr. DJ Saha, Advocate
For respondent(s) : Mr. M. Debbarma, Addl. G.A
Date of hearing and
Delivery of Judgment & Order : 25.07.2024
Whether fit for reporting : No
HON'BLE MR. JUSTICE ARINDAM LODH
JUDGMENT & ORDER (ORAL)
Heard Mr. BN Majumder, learned senior counsel assisted by Mr. DJ
Saha, learned counsel appearing for the petitioners. Also heard Mr. M.
Debbarma, learned Addl. G.A appearing for the respondents.
2. By means of filing the instant writ petition, the petitioners have tried
to make out a case that in view of the order passed by the Hon'ble Supreme
Court of India in SLP(C) No.18993-19049/2014, SLP(C) No.19588-
19637/2014, SLP(C) No.21249/2014 dated 29.03.2017, the petitioners'
employment in class IX and above has been protected. The main contention
of the petitioners as has been gathered from the submission of Mr. Nandi
Majumder, learned senior counsel for the petitioners is that those teachers
who are employed in class XI and above form a different class than that of
class of teachers whose services have been terminated in the light of the case
of Tanmoy Nath and others vs. State of Tripura and others reported in
(2014) 2TLR 731 and other.
3. The dispute raised here has a checkered history. In Tanmoy
Nath (supra), a division bench of this court after comprehensive discussion
on the matter and on consideration of rival submissions of the parties,
declared the revised employment policy of 2003 as unconstitutional and set
aside the entire selection process including the appointments of all teachers
numbering 10,323. Paragraphs 121 to 129 of the judgment contain the
operative direction, which are extracted hereunder:
"121. It has been urged that even if we set aside the selections,
our judgment should be prospective in nature. It has also been urged
by Mr. Sankar Deb, learned Sr. Counsel for the petitioners, that those
portions of the policy which are bad may be severed and those
portions which can be upheld may be retained, but the appointments
already made need not be disturbed. Reliance has been placed on the
judgments of the Apex Court in A.P. Public Service Commission v. K.
Sudharshan Reddy and others, (2006) 5 SCC 505, AIR 1957 SC 628,
(2000) 7 SCC 719. These judgments have no applicability to the cases
in hand and we are not all in agreement with this submission. The
selections have been totally unfair. The selections have not been made
in a transparent manner. The citizens of this country have not been
treated equally. Most of the clauses of the policy are illegal and
unconstitutional. The entire policy is bad because it gives no
guidelines and, therefore, the entire selection will have to be, must be
and is accordingly set aside.
122. Though we have set aside the selections, we are concerned
with the education of the small children who are innocent and have no
concern with the illegalities of the selection. We, therefore, direct that
the teachers whose selections have been set aside shall continue to
function in their present place of postings till 31-12-2014, i.e. the end
of the academic session of this year.
123. The State on or before 31-12-2014 must complete a fresh
process of selection of teachers in all categories. In view of the
discussions held above, we direct that the State should frame a new
Employment Policy within two months from today and shall carry out
selections in accordance with the fresh policy as early as possible and
not later than 31-12-2014.
124. It is not for this Court to frame guidelines but if the State
does not frame any guidelines, then the State shall follow the
following directions while making selections. If the State frames its
own guidelines, it must ensure that they are in tune with the law laid
down by the Apex Court as discussed by us above and in light of the
directions given hereinafter.
(i) Fresh applications shall be invited for all the posts;
(ii) Even those who have applied earlier will have to apply
again though they may be given relaxation in age and no fees may be
charged from them;
(iii) The State shall clearly set out the number of posts in each
category of teachers;
(iv) In case of undergraduate teachers, the State if it is so
advised may divide the posts sub-division wise so that the primary
school teachers are local people as far as possible;
(v) In respect of graduate teachers, the State may divide the
posts district wise;
(vi) In case of postgraduate teachers, there will be no zone wise
division of posts;
(vii) In case the State decides to make division of posts region
wise, as indicate hereinabove, then the candidates must be asked to
apply only for one region of their choice. It should also be specified in
the advertisements that once a candidate applies under any category
then he shall not be permitted to change his category and the roll
number should be allocated in such a fashion that the category and
region of each candidate is clearly depicted in the roll number itself.
(viii) For each category of teachers, a written test preferably an
objective (MCQ) test must be held;
(ix) This test should be conducted by an independent body like
the Tripura Public Service Commission or the Tripura Central
University;
(x) The test should be multiple choice question and the answer
sheet should be checked through a computer keeping in view the large
number of candidates involved;
(xi) At least 50% of the total marks shall be awarded on the
basis of the performance in the written test, i.e. in case a candidate
obtains 70 marks out of 100 in a written test, 35 marks out of 50 shall
be awarded to him towards the total assessment;
(xii) In the case of Post Graduate Teachers another 20 marks
shall be awarded for the marks received in the qualifying course, i.e.
B.A./B.Sc./B.Com (Honours) or post-graduation, i.e. M.A./M.Sc./
M.Com. Therefore, if a candidate has obtained 50% marks in the
qualifying course, he would get 10 out of 20 under this head. A
candidate, who has higher qualifications, for example he is an Hons.
Graduate and has also done his post-graduation or has done his post-
graduation in 2(two) subjects, then he may be awarded 5 more.
Similarly 5 more marks shall be awarded to those candidates who
have obtained Ph. D. or similar qualifications. Since consistency has
an important role, 5 marks each i.e. 10 marks shall be awarded for
the marks obtained in Madhyamik and Higher Secondary examination
respectively. Therefore, if a candidate has 40% marks in Madhyamik
he will get 2 out of 5 and if he has 60% marks in Higher Secondary he
will get 3 marks. Out of the remaining 10 marks which shall be
awarded at the time of interview 5 marks shall be earmarked for
extra-curricular activities i.e. sports, music, drama or NCC etc. but
the State must lay down clear-cut guidelines as to how these marks
have to be allotted. Therefore, the interview board will have the
liberty to award 5 marks on the basis of oral interview.
(xiii). In case of Graduate Teachers, 50% marks shall be
allocated for the performance in the written test, 20% marks for the
marks obtained in the qualifying course i.e. Graduation, 5 marks on
the basis of marks obtained in Higher Secondary and 5 marks for the
marks obtained in Madhyamik and 10 marks shall be awarded on the
basis of percentage of marks for candidates when done post graduate.
Similarly, Out of the remaining 10 marks which shall be awarded at
the time of interview 5 marks shall be earmarked for extra-curricular
activities i.e. sports, music, drama or NCC etc. and 5 for performance
in interview.
(xiv). For Under Graduate Teachers 50% shall be allocated for
performance in the written test, 10 marks for the marks obtained in
Madhyamik, 10 marks for the marks obtained in Higher Secondary
and 15 marks shall be awarded to those candidates who are qualified
as per the NET guidelines i.e. they have passed TET or B. Ed or
2(two) years Diploma in Teaching. 5 Marks for higher qualifications.
Out of the remaining 10 marks which shall be awarded at the time of
interview 5 marks shall be earmarked for extra-curricular activities
i.e. sports, music, drama or NCC etc. and 5 for performance in
interview.
(xv). We may make it clear that 50% seats shall be filled in only
on the basis of merit. In the State of Tripura the reservation is as
follows :
Scheduled Tribe - 31%
Scheduled Caste - 17%
General Category - 52%
Therefore, if there are 1000 posts in a particular category of
"Teachers' at least 165 Scheduled Tribe candidates should be
selected on the basis of merit amongst Scheduled Tribes, 85
candidates belonging to Scheduled Castes be selected on the basis of
merit drawn out amongst the Scheduled Caste category and 260 out of
the unreserved/general category shall be appointed strictly on the
basis of merit drawn out as above.
(xvi). The State must also ensure that in accordance with the
Persons with Disability Act and the law laid down by the Apex Court
in a number of cases including Union of India and Anr. Vs. National
Federation of the Blind and Ors., [(2013)10 SCC 772] adequate
numbers of posts are reserved for persons with disabilities.
(xvii). In case the States so desires, it may reserve a small
percentage of posts for Ex-servicemen or wards of those who have
died fighting for the Country or have been severely disabled.
However, the reservation under this head shall be horizontal and not
above 5%. The number of posts in this category should also be clearly
defined.
(xviii). The State may, if it so desires, also out of this 50% give
some weightage to persons who have been waiting for the
appointment for a long time. Therefore, there can be additional 20
marks to be awarded for seniority i.e. 1 mark for each year of
seniority subject to a maximum of 20 marks. Similarly, the State may
also give some weightage to members of the needy families out of
these 50% posts and may allot 10 marks for those persons who
belonged to the needy category. Therefore, the remaining 50% of
posts the marking may be out of 130 i.e. 20 marks for seniority and 10
marks for need.
(xix). Effectively, those selected only on the basis of the merit
shall be graded out of a maximum of 100 marks but for those who are
given benefit of seniority and/or belonging to a poor family the
marking will be out of 130 marks. It is, however, made clear that the
State at the time of framing of the policy shall also lay down clear- cut
guidelines how the needy families are to be identified. (i) The
identification must be done on clearly set out criteria i.e. to say the
upper income limit should be clearly defined. (ii) It should be clearly
stated that no member of the family should be in
government/organized employment. (iii) It should be clearly stated
that the land of the family should be below a certain area. We also
make it clear that any certificate given to a person said to be needy
can be challenged by the unsuccessful candidates if they feel that this
certificate has been wrongly given.
125. We would also like to make it clear that other than the
benefits indicated by us above there can be no reservation/preference
on the basis of age. There shall be no preference to dependent
government servants or retired government employee or retrenched
employees etc. There can be no reservation for linguistic or religious
minorities or on area wise basis. It is further made clear that if the
persons who are selected in the previous selection are again selected
then the service rendered by them earlier shall be counted for the
purpose of seniority, pension and all other purposes.
126. We may make it clear that the benefit to the candidates on
the ground of being needy shall not be granted on the basis of the BPL
certificates since we have found that there are no guidelines for
issuing the BPL certificates. Other guidelines can also be laid down
so that the needy can be identified properly.
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.
128. We are also of the considered view that in future the State
should not wait for years on end to make the recruitments. In each
year before 31st July the State shall identify the number of posts
which shall fall vacant in every category of teachers on account of
retirements, creation of new posts etc. in the next calendar year. To
this 10 to 20% may be added as the posts for anticipated and
unforeseen vacancies which may occur due to resignation or death of
serving teachers. The test for these posts should be held every year
and Select List should be prepared by 31st December of every year so
that when the new academic year starts in January these teachers are
selected and no school is without a teacher at any given time. While
issuing this direction we are taking support from the judgment of the
Apex Court in Malik Mazhar Sultan and Anr. Vs. U.P Public Service
Commission and Ors., [2008 (17) SCC 703] wherein the Apex Court
passed time bound directions for recruitment of civil judges. In our
opinion, the requirement of adequate number of teachers is even more
important than that of Judges and no post of teacher shall remain
vacant. The "Select List‟ shall be valid for a period of 1 or 2 years
but before the validity of the „Select List‟ comes to an end the State
must ensure that fresh test is carried out and fresh selection is made.
129. All the writ petitions are disposed of in the aforesaid
terms. No order as to costs."
4. SLP was carried out before the Hon'ble Supreme Court, which was
dismissed asking the State-respondents to allow them to appear in fresh
selection process till they attain the age of 45(forty five) years.
5. Thereafter, so many writ petitions were filed where
clarification/interpretations of some of the observations made in the
judgment of Tanmoy Nath(supra) were sought for. The terminated teachers
even approached the Hon'ble Supreme Court for clarification and to obtain
certain orders considering their continuation in service. But, their services
were only extended till completion of fresh selection process and
appointment of teachers thereof. But, the termination of 10,323 teachers was
not interfered with.
6. The disputes arose in the light of two judgments passed by two
different learned Judges of this Court. The first one was passed by one of the
learned Judges (T. Amarnath Goud, J.) directing the State-respondents to
consider the representations of the petitioners that they were not served with
any notice before termination order. But when similar matter came up before
me (Arindam Lodh, J.), this court having taken a different view referred the
matter to the Full-bench of this Court for decision to the dispute raised by
the petitioners. The Full-bench of this court disposed of the reference vide
judgment and order dated 26.09.2023 in WP(C) No.893 of 2022. The said
writ petition was filed by similarly situated terminated graduate teachers on
the ground that no show-cause notice was issued upon them which resulted
in breach of principles of natural justice. The Full-bench of this Court in its
judgment held that serving of show cause notice was not at all required
considering the context of the case. It was observed thus:
"[25] Besides, principle of natural justice is not a
straightjacket formula. It depends upon various facets in the
administration of justice and it is established that there is exception to
rules of natural justice. The present case falls within such exception
where rules of natural justice would not be applicable because of
large scale corruption, favouritism, nepotism and arbitrariness found
in the entire selection process. The entire selection process was
vitiated by fraud and arbitrariness which has already been declared
illegal and appointments of the persons so selected were terminated.
[emphasis supplied]
[26] The appointments of the petitioners and other teachers
were vitiated from the very inception which resulted in the issuance of
their termination orders and in that case, the principles of natural
justice were not violated, if no opportunity was given to the employees
concerned to have their say in the matter before their appointments
were recalled and terminated.
[27] As an upshot of the above discussions and the reasons
recorded, we are of the unanimous view that no interference is called
for in the impugned orders whereby the services of the petitioners
have been terminated. The reference is answered accordingly. The
instant writ petition is dismissed with a cost of Rs.25,000/- to be
deposited in the Tripura State Legal Services Authority."
7. The present petitioners have approached this Court, by filing the
instant writ petition stating inter alia that they were not noticed before
serving termination order against them. A learned Single Judge, as I said
earlier directed the State-respondents to dispose of the representations
submitted by the petitioners with speaking order. Accordingly, the
competent authority had passed an order dated 02.05.2024(Annexure-7 to the
writ petition) disposing of the representation submitted by the petitioners in
compliance of the order dated 03.05.2023 passed in WP(C) No.334 of 2021.
The said impugned order dated 02.05.2024 is under challenge before this
Court.
8. In view of the challenge of the order dated 02.05.2024, this Court has
meticulously perused the same. On perusal of the entire order dated
02.05.2024(supra), in my opinion, in no way the same can be treated as a
non-speaking order. The authority concerned has referred to all the orders
passed by different courts and thereafter regretted it.
9. Mr. Nandi Majumder, learned senior counsel for the petitioners has
emphatically urged this court that the decision of the full bench of this court
was concerned about the graduate teachers and not post-graduate teachers. I
have given thoughtful consideration to the above submissions and perused
the record. Here, true it is, all the petitioners are post-graduate teachers. But,
they were appointed under the same policy which was quashed and set aside
by this court having found that there were large scale corruptions, nepotism
and favoritism.
9.1 Furthermore, while dealing with different writ petitions filed by
similarly situated teachers, it was categorically held by this court that there
was no requirement to serve notice upon the teachers whose services had
been terminated by the order of this Court and affirmed by the Supreme
Court allowing their age relaxation upto 45 years to appear in any fresh
selection process to be undertaken by the State-respondents. Pertinent to
mention herein that upper age limit for Government employment in the State
of Tripura is 42 years.
9.2 It has been emphatically submitted by learned senior counsel for the
petitioners that the services of the petitioners would not be governed by the
principles or by the decisions rendered in the case of Sri Pranab Deb Vs.
The State of Tripura and 2 Ors., i.e. the Full-bench decision, because the
present petitioners are the post-graduate teachers.
10. In view of this submission, I have revisited the judgment passed in the
case of Tanmoy Nath(supra) as well as the judgment of the Pranab
Deb(supra). In the case of Tanmoy Nath(supra), this court did not make any
distinction between the classes of teachers. The selection process which was
set aside involved not only the primary or graduate teachers, but also the
post-graduate teachers. So, the present petitioners also fall within the
purview of the decision rendered in the case of Tanmoy Nath(supra).
10.1 To reinforce his submission, Mr. Nandi Majumder, learned senior
counsel has relied upon one clarificatory order passed by Supreme Court in
SLP(C) Nos.18993-19049/2014 dated 29.03.2017. While disposing of the
petition, the Hon'ble Supreme Court observed thus:
"4. Since we do not find any ground to interfere with the impugned
order, the directions in para 123 now required to be suitably
modified. We, therefore, direct:
(a) New Employment Policy should be framed by the State by 30 th
April, 2017 if not already framed and advertisements for filling up the
vacancies may be issued latest by 31st, May, 2017.
(b) The fresh selection process be completed on or before 31 st
December, 2017 and till the fresh process is completed, the teachers
already appointed shall continue.
(c) The candidates who participated in the selection process pursuant
to the advertisements in question, whether selected or not, will be
allowed to participate in the fresh selection process by relaxing their
age but subject to their having necessary qualifications.
(d) The qualifications in the case of teachers governed by the
provisions of the Right of Children to Free and Compulsory
Education Act, 2009 shall be in conformity with the relevant statutory
provisions of the said Act.
(e) The qualifications of teachers employed for Classes IX and above
shall be strictly in compliance with the relevant provisions concerning
such appointments.
5. Subject to the aforesaid modifications, the view taken by the High
Court in the impugned order is affirmed and the special leave
petitions are dismissed."
10.2 Learned senior counsel appearing for the petitioners has laid much
emphasis on the observation made by the Hon'ble Supreme Court in Clause
(e), and he submits that in view of the modifications/clarifications made in
Clause (e), the Supreme Court of India has segregated the post-graduate
teachers employed for Classes IX and above. His contention is that the
services of post-graduate teachers cannot be terminated in view of the
clarificatory order passed by Hon'ble Supreme Court as reproduced here-in-
above. I am unable to digest this submission of learned senior counsel
appearing for the petitioners.
10.3. To summarize, the above contention of learned senior counsel
appearing for the petitioners, means that the post-graduate teachers
employed for Classes IX and above form a different class and they cannot be
equated with the graduate and other categories of teachers.
11. In my opinion, this Clause (e) should not be read isolatedly and it
should be read in conjunction with the other directions made in the order
dated 29.03.2017(supra). This direction cannot in any way be treated as an
order allowing the petitioners or post-graduate teachers alike to continue
their services even after the completion of the fresh selection process and
appointments thereof. The order dated 29.03.2017 crystallizes that the State
Government was asked to frame a new policy immediately if it was not
framed for filling up required vacancies. It was specifically directed under
Clause (b) that the State Government should undertake a fresh selection
process which had to be completed by 31 st December, 2017 as the services
of the petitioners and like other teachers were extended till completion of the
fresh selection process.
11.1 In furtherance thereof, the petitioner or the persons alike were given
opportunities to appear in any of the fresh selection process initiated by the
State-respondents till they attain the age of 45 years. In my view, the
directions or observations made in Clause (e) of the order reproduced here-
in-above, imply that all the appointments of teachers for Classes IX and
above must be in conformity with the relevant Recruitment Rules prescribed
for appointment of the post-graduate teachers (PGT). Under Clause (e), the
Supreme Court specifically directed the State Government not to
compromise with the qualifications. By the said observation, the Supreme
Court, in my opinion, has never segregated the post-graduate teachers from
the other categories of teachers and it is apparent that the Supreme Court
dismissed the application.
11.2 Moreso, in my opinion, if the petitioners need any clarification of the
order dated 29.03.2017, then, should approach to Hon'ble Supreme Court
only, but not to this Court.
11.3 Mr. Nandi Majumder, learned senior counsel for the petitioners has
not pressed any other points in support of the prayers made in the writ
petition.
12. As I have already observed that the order of the Hon'ble Supreme
Court dated 29.03.2017(supra) has not intended to segregate the post-
graduate teachers from other categories of teachers, the present case as tried
to be projected by the present petitioners have no legs to stand.
12.1 The directions made in Clause (b) of the said order dated 29.03.2017
makes it crystal clear that the teachers are allowed to continue till the fresh
selection process is completed. It cannot be interpreted that by this direction
or observation, the employment of post-graduate teachers are protected and
they do not require to appear or participate in the fresh selection process to
be undertaken by the State-respondents.
13. For the reasons stated and recorded here-in-above, I do not find any
merit in the present writ petition.
14. This Court has observed that many of the teachers whose services
have been terminated are knocking the doors of the Court time and again and
already have wasted valuable time of this Court. All the writ petitions are
found to be frivolous. In the present petition, they are trying to interpret an
order which was passed in the year 2017 (29.03.2017). Suddenly, the
petitioners have tried to project a case which is simply an abuse of the
process of the Court. When the matter is well settled, this kind of approach
of the petitioners and the teachers alike should not be taken leniently. As
such, necessary costs are to be imposed for wasting the valuable time of this
Court with such frivolous petition. I deprecate the approach of the
petitioners. Without preparing themselves for appearing and participating in
the selection process, they are unnecessarily knocking the doors of the court
most capriciously and whimsically, which should not be permitted.
15. In view of this, I am constrained to impose cost of Rs.50,000/-(rupees
fifty thousand) only on the petitioners of the present writ petition, and the
same has to be deposited with the State Legal Services Authority, Agartala
within 30(thirty) days from today.
Accordingly, the instant writ petition stands dismissed in the above
terms.
JUDGE
Rohit
SAIKA Digitally signed
by SAIKAT KAR
T KAR
Date: 2024.07.30
16:48:47 +05'30'
