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Judgment
[1] Heard Mr. Samarjit Bhattacharjee, learned counsel appearing for the petitioners as well as Mr. D. Bhattacharjee, learned G.A. appearing for the respondents.
[2] Mr. Bhattacharjee, learned G.A. has submitted the papers as asked for by the order dated 21.01.2020. The papers submitted by the respondents in terms of the said orders are:
Vacancies in the post of drivers in various department,
List of appointees made from the select panel (department wise), and
A composite statement of the candidates who were recruited and their position in the select panel.
It appears on the first blush that the papers are formed of the basis of the records. However, even if, any reference is made thereform, the basic records will prevail.
[3] All these petitions are combined for disposal by a common judgment for the reason that a common question wades through all the writ petitions being whether the respondents can discriminate the petitioner by not appointing them from the same merit panel as prepared after the selection test for recruitment of Drivers, Grade-III, Annexure-5 to the writ petition when from the same merit panel a large number of candidates have been appointed as is evident from the list of appointment made from the select panel (department wise). All the petitioners have projected an identical case and hardly there is any variation of fact.
[4] In terms of the employment notification dated 21.07.2015 an initiative was taken by the cadre authorities to prepare the panel of 500 Drivers borne in Group-C, (Non-Gazetted) and in the Scale of Rs.5700-24000/- with Grade Pay of Rs.2200/- under Pay Band-2 [on fixed pay basis] and for purpose of sponsoring candidates to various departments as per requisition.
[5] It has been noted in the said notification, Annexure-1 to the writ petition, that out of 500 candidates SC, ST and UR category candidates would be 85, 155 and 260 respectively. According to the Tripura Motor Vehicles Drivers Service Rules, 1979 (7th Amendment), the willing candidate must be citizens of India, permanent of resident of Tripura and having age between 18-40 years. Upper age limit, however, is relaxable in case of SC, ST and Ex-Servicemen candidates by 5 years. Educational qualification of the willing candidates should not be less than Class-VIII passed. That apart, the candidate must be a qualified driver and should posses a commercial Driving License. In the said notification, a format had been suggested for applying for the said post with all required information/document. In the same notification itself, the venue, date and time schedule of the Walk-in-Interview were provided. The said venue date and time of the schedule of the Walk-in-Interview is reflected in a table formed herein under:
Venue, date and time schedule of the Walk-in-Interview are as follows:
Sl. No.
Name of the Districts & Headquarter
Date of Interview
Venue of Interview
Time schedule for Interview
1.
2
3
4
5
1.
Sepahijala, Bishramganj
05.08.2015 to 07.08.2015
DTO Office, Bishramganj
11.00 A.M. to 4.00 P.M.
2.
Khowai, Teliamura
09.08.2015 to 11.08.2015
Teliamura Town Hall
11.00 A.M. to 4.00 P.M.
3.
Dhalai, Ambassa
13.08.2015 to 18.08.2015
PRTI Complex, Ambassa
11.00 A.M. to 4.00 P.M.
4.
Unakoti, Kailashahar
20.08.2015 to 22.08.2015
PRTI, Kumarghat
11.00 A.M. to 4.00 P.M.
5.
North Tripura, Dharmanagar
24.08.2015 to 26.08.2015
Old Town Hall Complex, Dharmanagar
11.00 A.M. to 4.00 P.M.
6.
Gomati, Udaipur
24.08.2015 to 26.08.2015
PRTI Complex, Udaipur
11.00 A.M. to 4.00 P.M.
7.
South Tripura, Santirbazar
28.08.2015 to 30.08.2015
Electric Office ground, Near DGM Office, Santirbazar
11.00 A.M. to 4.00 P.M.
8
West Tripura, Agartala
01.09.2015 to 04.09.2015
TRTC Complex Barjala, Agartala
11.00 A.M. to 4.00 P.M.
[6] There is no dispute that in response to the said employment notification the petitioners applied for the said post and appeared in the Walk-in-Interview. The petitioners having referred the merit panel, Annexure-5 to the writ petition, have contended that all the writ petitioners have found their place in the said merit panel for recruitment to the post of Driver, Group-C prepared on the basis of the practical driving test and personality test through the interviews which were held from 05.08.2015 to 06.09.2015.
[7] The petitioners had legitimately expected their recruitment in terms of the said notifications and in terms of the Tripura Government Vehicle Drivers Service Rules, 1979. The Rule 10(b), as the relevant rule for purpose of the direct recruitment, provides that seventy percent of the total vacancies arising in a year shall be filled up by direct recruitment while the rest thirty percent shall be filled up by promotion from the regular Group-D employees having valid driving licence for driving vehicles. In case of the direct recruits, the Transport Department shall conduct interview and suitability test as may be prescribed and select a panel of eligible candidates for forwarding the same to the respective Departments. The list to be prepared shall contain the names of selected candidates double the number of vacancies that may be filled up. The list shall remain valid for a period of one year.
[8] In this case when the petitioner found their recruitment is not being completed in terms of the said employment notification (Annexure-1 to the writ petition), they approached this court for directing the respondents to recruit them in the post of Driver, Group-C (Non-Gazetted) on the basis of their position in the merit panel as prepared by the Transport Department in pursuance to the said employment notification dated 21.07.2015.
[9] That apart, since the respondents had discarded the said panel by their memorandum No.F.20(1)-GA(P&T)/18 dated 14.03.2018 issued by the Additional Secretary to the Government of Tripura, the said memorandum has been challenged by this batch of the writ petitions. At one point of time, the petitioners had expressed their apprehension if the respondents might raise a plea that the panel has become stale in view of the Rule 10(2)(B) of the said rules of Tripura Government Vehicles Drivers Service Rules, 1979. This court to allay such apprehension by the order dated 23.08.2018 has categorically observed as follows:
"It is made clear that the apprehension of the petitioner would not come into their legitimate right of fair consideration as being prayed in the writ petition(s)."
[10] Mr. Bhattacharjee, learned counsel appearing for the petitioner has highlighted that when the petitioners were legitimately expecting their recruitment, suddenly by the Memorandum dated 14.03.2018, the State Government communicated their decision that the recruitment process shall be reviewed and pending such review all the ongoing recruitment/selection process in departments/autonomous bodies etc. under the Government shall be kept in abeyance with immediate effect. However, an exception has been made in respect of recruitment of the Judicial Officers as conducted under the direction of the Supreme Court and the High Court or any other Court within the State. Pursuant to the said Memorandum dated 14.03.2018, Annexure-6 to the writ petition(s), the Memorandum dated 20.04.2018, Annexure-7 to the writ petition was issued. In the meanwhile, the select panel was prepared by the Transport Department for filing up of 500 posts of Drivers and that panel was partly acted upon by the respondents by recruiting a large number of persons in the post of Driver (Group-C). When the petitioners' turn, as claimed by the petitioners, came for recruitment [as a large number of vacancies were still left to be filled up in the same exercise] in the post of the Drivers, Group-C on the basis of the said merit panel, the respondents taking resort to the said Memorandum dated 20.04.2018, Annexure-7 to the writ petition, have discarded the said panel and the entire process. That cause gave a occasion for filing these writ petitions.
[11] The respondents by filing their reply on 20.01.2020 have stated that the interview board was constituted by the appropriate administrative approval, which is available in the Memorandum No.F.1(1)-Trans/2015 dated 20.07.2015. After completion of the selection process, one common merit list for all eligible candidates and separate merit lists category-wise for ST, SC and UR candidates were prepared. All the suitable candidates appeared in the interview were included in the said panel.
[12] It has been further stated that the Government in GA(P&T)Department circulated a decision under No.F.20(1)/ GA(P&T)/18 dated 20.08.2018 where it has been stipulated as follows:
"The State Government has decided that in view of the New Recruitment Policy approved by the Government, all New appointments should be made as per the New Recruitment Policy and all existing recruitment processes initiated by the respective Departments or the TPSC, hereby, stand cancelled excepting ongoing recruitment of Tripura Judicial Service Grade-III only for which specific examination has been accorded in consultation with the Hon'ble High Court of Tripura." [Emphasis added]
[13] The said letter communicating the decision as reproduced above is available with the writ petition as Annexure-R1. On the basis of that, the petitioners was not considered for recruitment and the panel that survived after appointing a substantive size of persons had been unceremoniously given a clean 'burial' by the said action and hence the petitioners have approached this court for intervention. The facts are almost admitted. The selection process was initiated in terms of the employment notification dated 21.07.2015, Annexure-1 to the writ petition, for empanelling 500 persons for recruitment to the post of Group-C in compliance to the reservation roster.
[14] It appears from the records produced by Mr. Bhattacharjee, learned G.A. that the vacancy at the relevant point of time was 38 for SC, 72 for ST and 123 for UR category candidates. That apart, the reservation was also curved out for the Ex-Servicemen SC, ST and UR as per rules.. Thus, the department wise vacancy has been shown as follows:
Health Department - 151
DM & Collector, West (Revenue and Rural Development) - 02
DM & Collector, Unakoti(Revenue) - 03
DM & Collector, North - 02
DM & Collector, Khowai (Revenue and Rural Development) - 08
DM & Collector, Sepahijala, Bisramganj - 04
DM & Collector, Gomati (Revenue and Rural Development) - 08
DM & Collector, Dhalai (Revenue) - 02
Forest Department - 15
Directorate of Economic and Statistics - 01
Land Records & Settlement - 05
Animal Resource Development - 04
Fisheries - 01
PWD - 01
Directorate For Welfare of Minorities - 01
Directorate of Panchayet - 01
Directorate I & CA - 01
Home (SFSL) - 02
Directorate of Employment Service - 01
Directorate of ST - 04
Directorate of Small Savings - 01
Law Department - 01
Thus, the total vacancy came to be 237. The panel was made for 500 candidates as per rules.
[15] From the records, as produced, it appears that from the panel already 244 candidates have been appointed. Therefore it shows that the vacancies as reflected in the chart are not correct. The vacancies would be in terms of the employment notification (85+155+260)=500. Out of the 500 vacancies, according to the list produced by Mr. Bhattacharjee, learned G.A. for the respondents, 244 candidates from the panel have been appointed in various departments. The remaining 256 vacancies are available when the panel was unceremoniously discarded by the respondents.
[16] Mr. Bhattacharjee, learned G.A. appearing for the respondents has quite categorically submitted that the Government by taking a policy decision decided that the existing recruitment and selection process would be reviewed and till then the recruitment/selection process shall be kept in abeyance. Therefore, this court is of the view that the panel was not wholly discarded but it was put on hold subject to the decision of the Government. But in the reply, the respondents did not hide that by the subsequent decision of the Government dated 20.08.2018, all 'ongoing' recruitment processes initiated by the respective departments or the TPSC stood cancelled with exception made to the appointment to the judicial service.
[17] The petitioners have raised certain pertinent questions in these writ petitions to challenge the action of the respondents. Those questions are:
(1) Whether a part of the panel can be acted upon by leaving the other candidates who are found eligible by the valid recruitment process and the notified vacancies are not filled up?
(2) When the selection was carried out in terms of the statutory provision vide Rule 10(b), as reproduced above, can by the executive instruction, the action taken in terms of the rule be made inoperative? and
(3) Whether the petitioners do have any indefeasible right to be recruited on the basis of the merit panel that has been prepared as aforesaid?
[18] In these cases, as stated earlier, in respect of the selection there is no controversy, even no apprehension. The statements made by the petitioners, are that they all occupy positions in the merit panel. Even this has not been controverted. Further, it surfaces from the statement, as made by the petitioners, that a large number of candidates, to be precise-244, have been recruited from the said panel and the said statement remains unrebutted. Hence, after preparation of the panel and acting thereupon, it cannot be contended that the said process is an ongoing recruitment process. No doubt, taking a rational approach it can be stated that the recruitment process on the basis of the said merit panel has not been completed. But, the selection process is substantively over for all purposes. There is no challenge in that respect.
[19] Mr. Bhattacharjee, learned GA having referred to the Memorandum dated 20.08.2018, Annexure-R1, have drawn notice of this cause to show that the memorandum dated 20.08.2018, Annexure-R1 has been given prospective operation.
[20] Mr. Bhattacharjee, learned GA has, for this purpose, referred a decision of this court in Samudra Debbarma Vs. State of Tripura and Others, [judgment dated 14.05.2019 delivered in WP(C) No.831 of 2018] which was however challenged in the Writ Appeal No.142 of 2019. With some modifications, which have nothing to do with the present case, the judgment of the Single Judge has been upheld by a Division Bench of this Court by the judgment dated 03.12.2019 delivered in WA No.142/2019 [The State of Tripura & another Vs. Samudra Debbarma & another].
[21] In Samudra Debbarma (supra), it has been observed that the new arrangement is prospective in nature and that observation has not been interfered in the writ appeal. However, in the writ appeal it has been observed that the Government while framing its policies undoubtedly has wide latitude as long as the policies are based on a well informed decision. The executive has the liberty to experiment in policy formation. A policy change cannot be sustained in absence of sound reasons, nevertheless the question is open for the Government to supervise its policy and to bring about change through such policy, but not in the recruitment process which has travelled to an advanced stage. The answer to the question for the multiple reasons must be in the negative. The reasons as provided in the judgment of writ appeal are as follows:
"[29] Firstly, as noted, the new policy of the Government restricts the marks for oral interviews to 10% of the total. The existing formula being applied for selection to the posts in question carried oral interview weightage of only 11% which was fractionally higher than what the new policy prescribes. For such a minor policy change the entire exercise of inviting applications from eligible candidates, holding screening test for weeding out weaker candidates, allowing successful candidates passing the screening test to appear in the written examination and conducting the written examination could not have been be annulled. No pressing grounds are demonstrated before us for taking such a drastic measure for an insignificant change in the policy parameters.
[30] Secondly, allowing the Government to apply the policy change at such an advanced stage would undoubtedly breach the principle of changing the rules of the game once the game has begun. The fundamental philosophy behind the Courts laying down the said principle is that the executive discretion cannot be allowed to operate in such a way that midway through the selection process the very selection criteria can be changed. This would in addition to giving rise to uncertainty in public select ion process, also be open to mala fide application where the rules for selection would be changed to suit so as to include certain wanted or to exclude unwanted candidates. In the present case, there may not be any element of bias. Nevertheless permitting the Government to bring in a new set of rules and to cancel the entire selection process which has travelled to an advanced stage has a risk potential to permit arbitrary decision of the executive to prevail. To frame a new recruitment policy may be a perfectly valid and legitimate policy decision of the Government. We do not intend to; in fact we are not even called upon to interfere with such policy decision. However, the subsequent decision of the Government to annual the entire selection process which had reached an advanced stage only so that the new policy of recruitment can be applied by restarting the selection was an arbitrary decision.
[31] There is yet another reason why the Government decision cannot survive the test of law. We may recall, the proportion of marks for the screening test, written main examination and oral interview have been prescribed under the relevant Regulations. These Regulations are in exercise of powers conferred under Rule 6 of the said Rules. These Regulations are thus in the nature of subordinate legislation. The prescription of the marks for written test and oral interview thus tress their origin to statutory Regulations. The field is thus not open and is occupied by legislation. Executive instructions cannot override such statutory prescriptions. By issuing an executive fiat it was, therefore, not open for the State Government to modify the proportion of the marks for oral interview. In other words, unless and until the Regulations are amended, the policy declaration under the notification dated 5th June, 2018 insofar as it pertains to limiting the marks for oral interview to 10% of the aggregate, would not prevail." [Emphasis added]
[22] Even a review petition was preferred by the State being Review Petition No.01 of 2020. But the said review petition was dismissed by the judgment and order dated 13.01.2020 without any interference in the judgment and order dated 03.12.2019 delivered in WA No.142 of 2019.
[23] It has been observed in the judgment of that review petition that the decision of this court in Sri Partha Das Vs. The State of Tripura and Others and the connected petitions [the judgment dated 03.10.2019 delivered in WP(C) No.946 of 2018 and etc.] has further no universal application. It has been observed that the Government embarked to modify the policy as referred in Samudra Debbarma (supra), by the executive instruction which the court has found impermissible. This question before the Division Bench was not in the case of Partha Das (supra). In that case, the posts belonged to the lowest categories in the police force. It is to be noted that Mr. Bhattacharjee, learned G.A. has placed reliance on the said decision rendered by this court in Partha Das (supra) taking out the same from the context.
[24] This court therefore is persuaded to reiterate that the said decision of cancelling the recruitment processes cannot be applied retrospectively. On the basis of the said reason alone, the panel as prepared through a legal process for recruitment of the Driver (Group-C) cannot be cancelled and accordingly, the order of cancellation vide the Memorandum dated 20.08.2018, Annexure-R1 to the reply filed by the respondents, stands interfered with and set aside so far it is concerned with the merit panel and the recruitment process of the Drivers (Group-C) prepared and carried out by the Transport Department in exercise of the power as conferred by Rule 10(b) of the Tripura Government Vehicles Driver Service Rules, 1979.
[25] Finally, this court is confronted with the question, whether for the reason that the petitioners' are in the merit panel, can they claim their appointment in order of merit in the respective category? In this regard, the reference has been made to a decision of the apex court which governs the field till now [Asha Kaul (Mrs) And Another Vs. State of Jammu & Kashmir reported in (1993) 2 SCC 573]. It has been observed in Asha Kaul (supra) that mere inclusion in the select list does not confer upon the candidates an indefeasible right to appointment. [See also State of Haryana Vs. Subhash Chandra Marwaha reported in (1974) 3 SCC 220: Mani Subrat Jain Vs. State of Haryana reported in (1977) 1 SCC 486: State of Kerala Vs. A. Lakshmikutty reported in (1986) 4 SCC 632]. But this is only one of the aspects we are concerned with. The other aspect is the obligation of the Government to act fairly. The whole exercise cannot be reduced to a farce. Having sent a requisition/request to the Commission to select a particular number of candidates for a particular category in pursuance of which the Commission issues a notification, holds a written test, conducts interviews, prepares a select list and then communicates to the Government - the Government cannot quietly and without good and valid reason nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment. We do not think that any Government can adopt such a stand with any justification today. This aspect has been dwelled upon by a Constitution Bench of this Court in Shankarsan Dash Vs. Union of India reported in (1991) 3 SCC 47 where the earlier decisions of the apex court have been noted.
[26] In Shankarsan Dash Vs. Union of India reported in (1991) 3 SCC 47, it has been observed that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily, the notification for recruitment merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them is filled up, the State is bound to respect the comparative merit of the candidates, as reflected in the recruitment test, and no discrimination can be permitted. This principle has been consistently followed by the courts in this country, and we do not find any discordant note in respect of such decision.
[27] Mr. Bhattacharjee, learned counsel has also drawn the notice of this court to a contemporary decision of the apex court in Dinesh Kumar Kashyap and Others Vs. South East Central Railway and Others reported in AIR 2019 SC 24 where having referred and relied on the principles of Shankarsan Dash, The majority decision has laid down as under:
"At the same time when a large number of posts are lying vacant and selection process has been followed then the employer must satisfy the court as to why it did not resort to and appoint the selected candidates, even if they are from the replacement panel. Just because discretion is vested in the authority, it does not mean that this discretion can be exercised arbitrarily. No doubt, it is not incumbent upon the employer to fill all the posts but it must give reasons and satisfy the court that it had some grounds for not appointing the candidates who found place in the replacement panel." [Emphasis added]
[28] In this behalf, the majority decision of the apex court has also referred to its own decision in R. S. Mittal V. Union of India (UOI) MANU/SC/1009/1995:(1995) Suppl. 2 SCC 230 wherein it has been held as follows:
"It is no doubt correct that a person on the select panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr. Murgad within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Government's approach in this case was wholly unjustified.
Our country is governed by the Rule of law. Arbitrariness is an anathema to the rule of law. When an employer invites applications for filling up a large number of posts, a large number of unemployed youth apply for the same. They spend time in filling the form and pay the application fees. Thereafter, they spend time to prepare for the examination. They spend time and money to travel to the place where written test is held. If they qualify the written test they have to again travel to appear for the interview and medical examination etc. Those who are successful and declared to be passed have a reasonable expectation that they will be appointed. No doubt, as pointed out above, this is not a vested right. However, the State must give some justifiable, non-arbitrary reason for not filling up the post. When the employer is the State it is bound to act according to Article 14 of the Constitution. It cannot without any rhyme or reason decide not to fill up the post. It must give some plausible reason for not filling up the posts. The courts would normally not question the justification but the justification must be reasonable and should not be an arbitrary, capricious or whimsical exercise of discretion vested in the State. It is in the light of these principles that we need to examine the contentions of the SECR." [Emphasis added]
[29] The minority decision, however, was not concerned with this aspect of the matter, inasmuch as it has been observed by the minority that there is no indefeasible right of the candidate to appointment and empanelment. Empanelment does not create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity to the constitutional imperatives.
[30] Having appreciated the submissions made by the learned counsel for the parties, this court is of the view that first and the foremost feature that has to be noticed by this court is that the panel as referred in this judgment is not a replacement panel, it is a merit panel for filling up of 500 vacancies of Drivers in the various departments of the Government. The panel for 500 candidates is a merit panel for filling up of all 500 vacancies in the posts of the Driver, Group-C in terms of the provisions of Rule 10(b) of the Tripura Government Vehicles Drivers Service Rules, 1979 (amended from time to time).
[31] There shall not be any confusion that notwithstanding the panel being alive, the candidates who are in the waiting, cannot claim, as a matter of right, to be appointed. As the said main merit panel has been acted upon, only question that is relevant in the present context is that whether the non-appointment to the remainder of the vacancies i.e. 256 can be challenged by the petitioners. The answer must be in the affirmative as the employer, the respondents are under obligation to show the valid reasons not to act upon the said panel for purpose of filling up of the remaining of 256 vacancies. The solitary ground that has been assigned by the respondents or by their reply is that in terms of the Memorandum dated 20.08.2018, Annexure-R1 to the writ petition, the selection process has been cancelled. This court is unable to accept that the selection process that has been brought to its finality and acted thereupon cannot be discarded after filing up of 244 posts from the said panel. Hence, the respondents are under obligation, which they have failed, to give sound reasons to deny appointment to the suitable candidates whose names are available in the merit panel, Annexure-5 to the writ petition. While filling up the vacancies in the various departments, the merit position has to be respected by the respondents.
[32] Having observed thus, the respondents are directed to issue the appointment letter in favour of the petitioners, if their merit position in the panel in question permits them to be appointed against the remaining vacancies, i.e. 256 vacancies in the post of Driver, within a period of 3 (three) months from the day when the respondents shall receive a copy of this order.
[33] The writ petitions are allowed, in terms of the above. There shall be no order as to costs.
The papers as produced by Mr. Bhatacharjee, learned G.A. today be made part of the records.