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Judgment
Akil Kureshi, CJ
[1] Leave to amend is granted to the petitioners in all petitions. These petitions arise in similar background. They have been heard together and would be disposed of by this common judgment. For convenience, we may record facts from WP(C) No.408 of 2019.
[2] Petitioners have challenged a memorandum dated 14.03.2018 issued by the Additional Secretary, Government of Tripura under which the Government kept in abeyance all pending recruitment and selection processes. The petitioners have also challenged a communication dated 27.08.2018 issued by the Under Secretary, Government of Tripura to the Director General of Police under which the proposal for appointment of recruitment of 799 candidates to the post of Constables was returned and it was directed that new appointments would be made as per new recruitment policy of the State Government.
[3] On 06.03.2017 the Director General of Police, Tripura issued an advertisement advertizing a total of 838 posts of Constable (Male) to be filled up as per the selection program contained therein. The advertisement gave breakup of such of the vacancies which would be reserved for Scheduled Caste, Scheduled Tribe and the rest for unreserved candidates. The educational and other qualifications were also prescribed which included the physical measurements. The program for selection contained in the said advertisement reads as under :
Sl. No
District
Place
Date
Area
1
North Tripura District
Kanchanpur HS School, Kanchanpu
09-04-2017
11-04-2017
For the candidates under the Kanchanpur Sub Division
2
North Tripura District
Bir Bikram Institute, Dharmanagar
18-04-2017
20-04-2017
For the candidates under the Dharmanagar and Panisagar Subdivision
3
Unokoti Tripura District
Unokoti District Police Line, Kailashahar
25-04-2017
27-04-2017
For the candidates under the Unakoti District
4
Dhalai Tripura District
Maynama HS School, Chailengta
02-05-2017
04-05-2017
For the candidates under the Langtharai Valley Sub Division
5
Dhalai Tripura District
Kulai HS School, Kulai
11-05-2017
13-05-2017
For the candidates under the Kamalpur, Ambassa, Gandachera Sub Division
6
South Tripura District
Ishwar Chandra Vidyasagar College, Belonia
17-05-2017
19-05-2017
For the candidates under the South Tripura District
7
Gomati Tripura District
Police Line, Gomati District, Udaipur, Dhwajanagar
23-05-2017
25-05-2017
For the candidates under the Gomati District
8
Sipahikala Tripura District
Bishramganj HS School, Bishramganj
29-05-2017
31-05-2017
For the candidates under the Sipahijala District
9
Khowai Tripura District
Government HS School, Khowai
05-06-2017
07-06-2017
For the candidates under the Khowai District
10
West Tripura District
Manoranjan Debbarma Memorial Ground, Arundhutinagar, Agartala
12-06-2017
14-06-2017
For the candidates under the West Tripura District
[4] As per this notification the physical endurance test would comprise of five events and minimum standards prescribed for clearing each event were as under :
"Physical endurance test/Fitness test (male)
a. 100 meter Sprint 15 sec.
b. Long Jump 4268 cm.
c. Shot put (7.62 kg) 548.8 cm.
d. Pull ups 05 times
e. High Jump 122.0 cm."
[5] The recruitment envisaged a written test followed by viva-voce comprising of 60 and 40 marks respectively. The select list would be prepared on the basis of combined performance of the candidates in such tests.
[6] In response to the said advertisement the petitioners and large number of other candidates applied. Those who were eligible were called for physical test followed by the endurance test. Those who passed were subjected to written examination followed by oral interviews. At different districts such exercises were carried out over a span of three days each during the dates mentioned in the advertisement. In other words, the entire process of testing the physical and medical fitness of the candidates, subjecting those who cleared these parameters to endurance test and subjecting those who cleared the endurance test to written examination and oral interviews was completed at each centre in a span of three days.
[7] Before the final results could be collated and the recommendations could be made by the Director General of Police for appointment of the selected candidates, the State Government intervened and first issued an abeyance order on 14.03.2018 providing that all ongoing selection and recruitment processes shall be kept in abeyance awaiting formation of fresh recruitment policy by the State. This was followed by the impugned communication dated 27.08.2018 which reads as under :
"Sir,
The undersigned is directed to refer your letter vide No.2291/F.32/DGP/RSV/2015 dated 3rd August, 2018 on the subject mentioned above and to inform you that, you proposal for recruitment of 799 Posts of Constable was processed. However, authority desire to know the reasons for keeping on the process of recruitment though the ban o the recruitment was imposed by the State Government vide a Memorandum, dated, 14.03.2018.
Further, I am enclosing herewith the new recruitment policy issued vide Memorandum, dated, 20.08.2018 by GA(P&T) Department for your reference wherein it has been mentioned that, all new appointments should be made as per the New Recruitment Policy and all existing recruitment processes initiated by the Respective Departments or by the TPSC has been stand cancelled.
In view of the above, the undersigned is also directed to return the proposal (in Original) along with all required documents for kind information."
[8] The petitioners thereupon filed these petitions. Their contentions are as under :
(a) All the petitioners had been declared physically fit and were therefore subjected to endurance tests which they had cleared. Their written as well as oral examinations were conducted. On the basis of the combined marks allotted in the written and oral examinations they were found meritorious and therefore recommended for appointment. At such a late stage the Government cannot cancel the selection process citing the reason of formation of new recruitment policy.
(b) It was argued that all that was pending was issuance of appointment orders. Entire selection process was completed. No infirmity is alleged in conduct of the selection process. The new recruitment policy can apply only prospectively. Once the selection process had commenced any change in the procedure cannot be applied to such selection process.
(c) It was also contended that in the new recruitment policy the Government has provided that in case of Group-C and D posts as far as possible there would be no oral interviews and in any case for Group-C posts marks for oral interviews shall not exceed 10% of the total marks. Such parameters cannot be applied to the posts in question since the recruitment rules prescribe written test of 60 marks and oral interview of 40 marks. Such statutory prescription cannot be amended through executive instructions.
[9] Counsel for the petitioners placed heavy reliance on a Division Bench judgment of this Court in case of State of Tripura and another versus Samudra Debbarma and another in WA No.142 of 2019 decided on 03.12.2019.
[10] On the other hand, learned Additional Government Advocate opposed the petitions contending that the Government of Tripura had imposed a ban on further recruitments under office memorandum dated 14.03.2018 pending formation of new recruitment policy. Once such recruitment policy was framed ongoing selections were cancelled. This was in order to issue proper guidelines for selection and to bring in transparency in recruitments. He relied on a decision of Division Bench of this Court in case of Partha Das versus State of Tripura and others dated 03.10.2019 rendered in WP(C) No.946 of 2018 and connected petitions.
[11] During the course of the arguments of these petitions which spread over several days, we had inquired into the nature of selection process undertaken by the Police Department. We were curious to know how the entire selection process of large number of candidates was completed in a span of three days each at each centre. To gather further information on 03-02.2020 the Court had passed following order:
" The respondents shall file a reply giving following details :
(1) The date on which the process of taking physical measurements and endurance test of all the eligible candidates was completed;
(ii) The date of conduct of the written examination;
(iii) The date of declaration of the result of the written examination;
(iv) Date of conduct of oral interviews of those candidates who have qualified;
(v) Preparation and forwarding of the select list by the selection committee to the Home Department, if any.
List the matters on 10.02.2020."
[12] In response to the said order an additional affidavit dated 13.02.2020 was filed on behalf of the respondents in which following averments were made :
"2. That, I have gone through the order dated 03.02.2020 passed by the Hon'ble High Court and understood the same and also perused the relevant records/documents, so far available to me and stated the following as under :
(i) Recruitment rally for the post of Constable (Men) under Tripura Police Department, Govt. of Tripura was conducted pursuant to the advertisement dated 6th March, 2017 in the following dates and centres :
Sl No.
Date
District
Centre/venues
1
09.04.2017 To 11.04.2017
North Tripura
Kanchanpur Panchayet Ground
2
18.04.2017 To 20.04.2017
North Tripura
Dharmanagar BBI Play Ground
3
25.04.2017 To 27.04.2017
Unakoti Tripura
Kailashahar Police Line Ground
4
02.05.2017 To 04.05.2017
Dhalai Tripura
Mainama HS School Ground
5
11.05.2017 To 13.05.2017
Dhalai Tripura
Kulai HS School Ground
6
17.05.2017 To 19.05.2017
South Tripura
Ishwar Chandra Vidyasagar College Ground, Belonia
7
23.05.2017 To 25.05.2017
Gomati Tripura
Dhajanagar Police Line Ground, Udaipur
8
29.05.2017 To 31.05.2017
Sepahijala Tripura
Bishramganj HS School Ground
9
05.06.2017 To 07.06.2017
Khowai Tripura
Khowai Govt HS Boys School Ground
10
12.06.2017 To 14.06.2017
A.D. Nagar, Tripura
Manoranjan Debbarma Smriti Maidan
(ii) During recruitment rally, written test were conducted for those who qualified in the Physical measurement and endurance test and also for those who passed in the written test allowed to appear viva-voce test within the said period of recruitment rally in the respective venues as mentioned in the aforesaid advertisement dated 6th March, 2017 (Annexure 1 to the writ petition)
(iii) After completion of recruitment process, the Chairman of the Recruitment Board submitted the Board proceedings to the Police Headquarter (PHO), Agartala vide No. F.01/Recruitment/TSR-6/Estt/EF/2017/4845 dated 28.06.2018 and subsequently, the proceedings alongwith list of candidates was forwarded to the Home Department, Govt. of Tripura on 03.08.2018. Copy of forwarding letter dated 28.06.2018 alongwith Board proceedings and forwarding letter dated 03.08.2018 to Home Department is annexed herewith and marked as Annexure-R/1 & R/2 respectively.
(iv) Thereafter, by a communication letter dated 27th August, 2018 issued by the Home Department, Govt. of Tripura informed the Police Department about the cancellation of all existing recruitment processes initiated by the respective Departments and accordingly, the recruitment process of the Constable (Men) is stopped therefrom. A copy of the communication letter dated 27th August, 2018 is annexed herewith and marked as Annexure-R/3."
[13] After perusal of the said affidavit and examination of the records made available by the Government counsel on 25.02.2020 following further order was passed :
"Pursuant to our order dated 03.02.2020, the respondents have filed an affidavit dated 13.02.2020 during necessary particulars called for.
Learned Additional Government Advocate has previously requested and accordingly today he has kept all the record of the selections present for the perusal of the Court. He has compiled the data center wise of number of candidates, who had appeared in the endurance test, written test and viva voce. Such compilation is taken on record. He shall supply a copy thereof to the counsel for the petitioners.
A quick glance at the data provided by the respondents would show that at different centres the recruitment drive was carried out on different dates. At each centre, however, the entire process was completed in span of three days. On first day, the candidates were first subjected to physical measurements such as height, weight, Page 2 of 2 chest expansion etc. Those who cleared this test were called for physical test or endurance test. This endurance test comprised of five events of 100 meter running, high jump, long jump, pull ups and shot put. The physical measurements followed by endurance test were completed on the day-1. Of those who passed, were called for written test on the second day and out of those who cleared the written test were called for viva voce on the third day. In case of A.D. Nagar centre, as many as 1158 candidates had cleared the measurement tests and therefore were called for physical test/endurance test. Out of these, 583 candidates passed the physical test and were called for written test. 338 candidates who had passed the written test were called for viva voce.
We have referred to the biggest centre number wise, however, similar figures appear in large number of other centres such as Bishramganj where 964 candidates had qualified for appearance in endurance test, in Udaipur where 990 candidates were subjected to endurance test and Belonia where 842 candidates had participated in the physical/endurance test. The question that immediately comes to our mind is whether it was physically possible to conduct such tests and examinations of such large number of candidates in such a short time. We would consider this question with the assistance of learned advocates appearing for the parties and after perusing the registers maintained by the selection body of such tests.
List the matter on 03.03.2020. "
[14] Today we had a closer look at the recruitment process. Learned Additional Government Advocate was assisted by Mr. Manoj Kumar Sholley, Naib Subedar. He had produced for our perusal further records which we had shared with the counsel for the petitioners. Closer examination of the recruitment process would reveal that at each centre entire selection process was completed in a span of three days. At each centre large number of qualified candidates had appeared. For example at Kailashahar a total of 419 candidates appeared, 160 of them passed the physical test which was conducted on 25.04.2017. They were all subjected to written tests. 79 of them cleared the written examination which was conducted on 26.04.2017. All these candidates were subjected to viva-voce conducted on 27.04.2017. At Kulai centre, on 11.05.2017 all 623 qualified candidates were subjected to physical test of which 313 failed and 310 passed. Those who had passed were subjected to written test held on 12.05.2017. 174 candidates passed the written test. They were subjected to viva-voce held on 13.05.2017. At Belonia, a total of 842 candidates appeared. 402 passed the physical test held on 17.05.2017. 203 candidates passed the written test conducted on 18.05.2017. They were interviewed on 19.05.2017. At Udaipur, a total of 990 candidates appeared for physical test on 23.05.2017. 510 passed. They were subjected to written test on 24.05.2017 of which 220 passed. All these candidates were orally interviewed on 25.05.2017. At Bishramganj, total of 964 candidates appeared. At A.D. Nagar, 1158 candidates appeared of which 583 cleared the physical test. 338 of them passed the written examination. They were all subjected to oral interview in one day.
[15] It can thus be seen that the entire selection process at each centre comprising of 3 days of tests was conducted with respect to large number of candidates. It appears humanly impossible to conduct such tests with any degree of accuracy or reliability of the results. Our further inquiries with the Government counsel revealed more disturbing facts. Endurance or fitness test comprised of 5 events. 100 meters sprint, long jump, shot put, pull ups, and high jump. Minimum standards were also prescribed. 100 meters distance had to be covered in a maximum of 15 seconds. The candidate must jump a distance of 4.268 meters, throw shot put to a minimum distance of 5.488 meters, must complete 5 pull-ups and jump a minimum height of 1.22 meters. In high jump and long jump there would be more than one attempt permitted. All these tests of hundreds of candidates were stated to have been conducted in less than a day. In order to further verify the results, we had called for the result sheets and the registers maintained by the respondents. Learned Additional Government Advocate had produced for our perusal the result sheets pertaining to the endurance test prepared by the Board. Perusal of such result sheet would show that all that was recorded against the name of each candidate who had appeared in such endurance test was whether he had cleared or failed a particular event such as 100 meters run, long jump, shot put, high jump etc. All that the sheet indicates is pass or fail. No timings of the sprint, no measurements of long jump, high jump or shot put are maintained on record. Similarly for the viva-voce, total marks are shown in the result sheets. This does not show the breakup of marks allotted by each of the interviewers though we were informed that a panel of three interviewers had conducted the interviews.
[16] One of the petitioners Shri Sourav Sarkar has filed an affidavit dated 02.03.2020 to explain the manner in which such tests were conducted swiftly. According to him, the candidates were made to run in a batch of 10 each. Considering number of candidates at his centre, according to him, it would take about 29 minutes meaning 15 seconds multiplied by 116 which is the number of total batches. He has stated that the running event which had started between 9.30 am to 9.45 am was completed by 10.45 am to 11.00 am. He has further stated that parallel other 4 events were going on and the candidates would be sent batch wise in each event. On an average, according to him, in each event at his centre 216 candidates were participating simultaneously. He has stated that the entire process was completed by 3 o'clock. Those who failed the endurance tests were not subjected to written examination. Written examination at his centre was conducted on 13.06.2017 which commenced at 7 am with a duration of 1 hour. The examination thus would be over by 8 o'clock. Since all questions were of multiple choice questions, the answer sheets were evaluated by the examiners on the same day. The results were declared by 5.30 in the evening. A total of 338 candidates had passed in the written examination. Their oral interviews were held next day. The interviews started at 7 am and were conducted at 3 points simultaneously. On an average 5 minutes were allotted to each candidate. By evening oral interviews were over.
[17] We had inquired with the Government counsel on some of the aspects declared in the said affidavit. Under instructions he clarified that the interviews were not conducted parallelly at three separate points but that three interviewers were sitting together and interviewed the candidates. However, the penal would call three candidates simultaneously.
[18] We had also called for a sample answer sheet of one of the candidates of the written examination. For convenience we take on record a copy of the answer sheet of one Shri Rekast Chakma token No.438, since he had opted for the questions and answers in English. Perusal of these questions would show that, not all of them were multiple choice questions. The question paper was broken in 5 groups. Group A, B had 15 questions. Group C, D and E had 5 questions each. Group A did not contain any questions which were multiple choice questions. Group-B comprised of all multiple choice questions. None of the rest of the questions contained in C, D, or E were multiple choice questions. Some of the questions could possibly have large number of answers. For example, question No.2 in Group-D was, name 4 foods that are rich in protein. Obviously there could be several correct answers to this question. Likewise, question No.3 in Group-D was, write the names of any 4 acids. There could be large number of answers which would be correct. Question No.5 was, name two endangered animals and two evergreen plants.
[19] We are referring to these questions only to point out that not all questions comprised of multiple choice, where the candidates had to pick a correct choice which in turn would make it extremely simple for the examiner to decide whether the answer was correct or not which would be based on the key that would be supplied to him. Large number of questions required application of mind in deciding whether the answers to the questions were correct or incorrect. This would obviously require time. Further, as noted since some of the question could have large number of correct answers, providing key of correct answers in such cases would be quite difficult if not impossible. Since written examinations were conducted at different centres on different dates, question paper at each centre would have to be separately set. This in turn raise a serious question of standardization of set of questions.
[20] The materials on record would show that the entire process was conducted and completed in a most unsatisfactory manner. It is not possible to accept that hundreds of candidates, at some centres running into close to thousand, were subjected to height and chest measurements, physical test and endurance tests of five different events in just one day. Our belief got further reinforced when we perused the documents on record closely. As noted there are no details of the endurance test performances maintained by the selection board. We were informed that 10 candidates were made to run 100 meters in batches. How the timings were measured is not made clear. If they were measured they are not recorded. In a sprint when 10 athletics run simultaneously one would require multiple referees at the finish point to record their timings accurately in order to ascertain how many of them have finished the distance within the maximum time of 15 seconds and how many finished thereafter. The measurements of high jump, long jump, shot put are also not maintained. Nothing prevented the recruiting agency from maintaining proper records of performance of each candidate in each event. Transparency in recruitment process was hugely compromised and all this was done simply in order to complete a task in shortest possible time putting unreasonable and humanly impossible expectations on the entire machinery.
[21] The claim that the written examinations were conducted in one day and all question papers running into several hundreds were corrected on the same day is also quite fantastic and which would leave much to be desired. As noted, number of questions were not possible of straitjacket answers. There could be hundreds of foods which are rich in protein. There are large numbers of animals which are at the verge of extinction. There are thousands of plant varieties which are evergreen. The examiners were expected to test each question and decide whether the answer is correct or not. They themselves would need encyclopedia and not mere answer keys. Last but not the least to say that the oral interviews were conducted in one day also does not inspire confidence. At certain centres more than 300 candidates were subjected to oral interviews in a span of one day. Going by the say of the Government a penal of three interviewers would subject three candidates parallelly to oral interviews as if it was an assembly line of a factory. No meaningful interviews can be conducted in this manner is not difficult to appreciate.
[22] All in all the intervention of the Government in such recruitment process before the appointments were made, in facts of the present case, calls for no interference. The Government had suspended further selection process despite which it appears that the Director General of Police carried on the exercise. How and why this was done is not explained. However, he was not given permission to make recruitments since the Government by then had already formed a new recruitment policy. Mere formation of a new recruitment policy per se would not disturb a completed selection process which otherwise was carried out in transparent manner. This is what was held by this Court in case of Sumudra Debbarma (supra). However, in the present case, facts are vastly different. Not on the ground that the new recruitment policy would supersede the completed selection process but on the ground that when the petitioners approach the Court in writ jurisdiction seeking discretionary relief the Court must be satisfied on all parameters including transparency, fairness and equity in conduct of selection process before final relief can be granted, which in the present case we are not, we do not entertain these petitions.
[23] We have minutely examined the selection process and find that the same was conducted in such a short time and in such a manner as would not pass the muster of fair, transparent and equitable selection process. The Government selection must be tested on the touchstone of equality clauses enshrined in Articles 14 and 16 of the Constitution of India. When we find that the selection process fails this test, directions for issuing appointment orders to the selected candidates cannot be granted.
[24] Before closing we must provide a rider. The stress of the affidavits of the respondents is eliminating or minimizing the marks for oral interviews which is the main basis of the new recruitment policy. However, when the statutory recruitment rules provide a certain proportion of written examination and oral interview marks the same cannot be tempered with the aid of executive instructions. In the present case, it is not necessary to dilate further on this aspect of the matter.
[25] In the fresh selection process the Government may initiate, it would be open for the petitioners to claim benefit of age relaxation as per the new recruitment policy contained in office memorandum dated 05.06.2018.
[26] Subject to this, all petitions are dismissed.
[27] Pending application(s), if any, also stands disposed of.