Subarna Chakraborty vs State Of Tripura And Ors

Petitioners have challenged a selection process for the post of Senior Instructor (Employability Skill) undertaken by the official respondents pursuant to an advertisement dated 30.04.2016.

Brief facts are as under:

In WP(C) No.106 of 2017:

The Government had issued an advertisement dated 30.04.2016 inviting applications from eligible candidates for various posts which included five posts of Senior Instructor (ES) of which one would be reserved for Scheduled Caste, two for Scheduled Tribe and two would be available to unreserved candidates. For the reasons which are not relevant for our purpose, the petitioner could not apply for the said post within the time permitted in the said advertisement. He filed WP(C) No.375 of 2016 seeking time extension which was disposed of on 25.07.2016. Time was granted to the petitioner up to 01.08.2016 to apply. Petitioner applied within such extended time. According to the petitioner, at that time General Employment Guidelines issued by the Government under office memorandum dated 11.03.2016 were applicable. However, subsequently the Government issued two further guidelines under memorandum dated 18.05.2016 and 23.07.2016 and applied such revised guidelines to the selection process in question which according to the petitioner was impermissible. The petitioner would refer to the guidelines dated 23.07.2016 and highlight that the said guidelines included a category of "need" for which 25 marks would be allotted. The petitioner was awarded 0 marks under this head. The petitioner challenges this prescription of 25 marks to be awarded for "need" as provided in the said guidelines.

In WP(C) No.864 of 2017:

The petitioner had applied in response to the same advertisement for the post of Senior Instructor (ES). He was called for the interview but not selected. He has also challenged the action of the official respondents in applying the revised guidelines under memorandum dated 23.07.2016 once the selection process had already commenced. In the alternative, he also questions the validity of the "need" criteria as contained in the said guidelines. He has also been awarded 0 marks under this head.

Both the petitioners belong to the unreserved category. They have joined selected candidates as private respondents.

The respondents have filed replies in which the stand taken is that the selection process was undertaken in a transparent manner. The Government of Tripura had issued revised guidelines for general employment. Such revised guidelines were applied. In the guidelines contained in the office memorandum dated 23.07.2016 "need" criteria was inserted by the Government. There is nothing illegal or unlawful about the same. Those who do not satisfy the "need" criteria are not automatically made ineligible. They would only not be awarded any marks out of 25 marks allocated under the said head.

Appearing for the petitioners, learned counsel Mr. Arijit Bhowmik submitted that the selection process had commenced with issuance of the advertisement dated 30.04.2016. Any change in the method of selection or the guidelines for selection could not be made applicable to the said selection process. He submitted that this Court while disposing of WP(C) No.375 of 2016 had clarified that the guidelines contained in the office memorandum dated 11.03.2016 would be applicable. That being the position the department could not have applied the subsequent guidelines dated 23.07.2016. He further submitted that in any case, the insertion of "need" criteria under the said guidelines dated 23.07.2016 was wholly illegal. This clause is arbitrary and discriminatory and creates class within similarly situated citizens in the matter of public employment. It is thus hit by Articles 14 and 16 of the Constitution of India.

On the other hand, learned Addl. Government Advocate Mr. Dipankar Sharma opposed the petitions contending that the official respondents have properly followed the guidelines. The petitioners did not score sufficient marks to secure selection. The guidelines do not suffer from any illegality. He has also argued that the petitioners who had willingly participated in the selection process, are precluded from challenging validity thereof.

At first, I may deal with the objection of the official respondents to the maintainability of the petitions. It was vehemently argued by the learned Addl. G.A. that the petitioners having participated in the selection process are precluded from challenging the validity of the same. In this context, reliance was placed on decisions of the Supreme Court in cases of Ashok Kumar and another vrs. State of Bihar and others reported in (2017) 4 SCC 357 and D. Saroja Kumari vrs. R. Helen Thilakom and others reported in (2017) 9 SCC 478. This principle is too well settled and well-known to merit reiteration. However, in the facts of the present case, it cannot be applied. As noted, the Government itself had issued frequent guidelines and guidelines changes in the selection process. When the advertisement was issued in April employment guidelines of 12.01.2015 were holding the field. After the advertisement another set of guidelines under office memorandum dated 11.03.2016 were issued superseding the previous one. In quick succession yet another set of guidelines were issued on 23.07.2016 which were applied in the present case. There is nothing on the record to suggest that these frequent policy changes were given wider publicity for ordinary citizens to have noticed them immediately. Further, the last of the guidelines which were applied to the selection process published under office memorandum dated 23.07.2016 were issued when the selection process was well underway. The petitioners could legitimately carry a bona fide belief that such modified guidelines would not be applied in the present selection process since the selection process is already underway and there are decisions of the Supreme Court which take a view that major policy changes cannot be applied once the process has begun. In this office memorandum dated 23.07.2016 it was provided that it was issued in partial modification of earlier memorandum and "this will take prospective effect". The petitioners were, therefore, perfectly justified in holding a belief that these guidelines will not be applied in the present selection process. Whether the petitioners were correct in holding such a belief or not is not important. What is important is that such frequent policy changes had created a considerable confusion as to which of the guidelines would apply to the present selection process. Under such circumstances, it would be too much to expect the petitioners as candidates who had applied for the post in question to make a conscious choice whether to withdraw their participation and make themselves totally ineligible for selection or to take the risk of participating in the selection process and being told later on that you cannot challenge the validity thereof since you have already participated. It was undoubtedly a difficult choice, made more difficult since there was no clarity as to which policy guidelines for selection the interview board would apply. In the present case, therefore, I do not think the petitions can be dismissed at the threshold on this ground.

Having said that, I cannot accept the ground of the petitioners that the entire selection should be annulled since the selection was made as per the revised guidelines dated 23.07.2016 which came into operation after the selection process had started. Firstly, the petitioners themselves root for applicability of the guidelines dated 11.03.2016 which were also issued after the advertisement for selection was published. The petitioner of WP(C) No.106 of 2017 had occasion to approach this Court seeking extension of last date for applying since he had for some peculiar reasons missed applying before the original cutoff date contained in the advertisement. The Court in his case had extended the last date. Under such circumstances, one cannot apply the general thumb rule of revised selection policy not being applicable to the selection process which had already started. In any case, the private respondents are working on the post on which they were selected for more than 4(four) years now. Their appointments cannot be annulled only on this ground.

This brings me to the validity of the employment guidelines dated 23.07.2016. The Government has been issuing such guidelines from time to time, essentially with the purpose of making selection processes more transparent and non-discriminatory. These guidelines provide various categories under which the interview boards or selection committees would allot marks to the eligible candidates. Broadly under certain subheadings the method of awarding marks is also prescribed. For example, for any disability 20 marks are to be allotted. These 20 marks are further subdivided as under:-

7 marks for disability within 40% to 60%; 14 marks to be awarded for disability between 60% to 80%; & Full 20 marks to be awarded for disability of 80% or above.

These guidelines undoubtedly serve an important purpose of limiting the discretionary element of allotment of marks by the interview committees. The guidelines in question contain a heading "need". For Category-2 pertaining to the selection of candidates for Group-C post, "need" criteria would carry 25 marks (out of a total 100 marks to be awarded). It is further provided that "need" would be evaluated for awarding 25 marks to the candidate who falls under this definition. The definition of "need" contained in clause-5(iv) reads as under:-

"(iv)„Need'.

Criteria „Need‟ shall be as hereunder:-

(a) Total income of the family of candidate shall not exceed Rs.1.50 lakh per year and

(b) There is no member in the family having Government employment."

As per these guidelines thus out of a total 100 marks to be awarded by the selection committee, 25 marks would comprise of "need" criteria. The term "need" is described as (a) total income of the family of the candidate should not exceed Rs.1.50 lakh per annum; and (b) there is no member in the family having Government employment. It appears that the intention of these guidelines is that if both these criteria are satisfied, the concerned candidate would receive 25 marks. Though there is no further clarification, it would appear that if one of the two conditions is satisfied, the interview board at its discretion would allot appropriate marks under this head. If neither of these conditions are satisfied, as in the present cases, the candidate would get zero marks.

For various reasons, this prescription of 25 marks under the "need" criteria is wholly arbitrary, unreasonable, discriminatory and, therefore, unconstitutional. My reasons are as follows:-

Out of 100 marks to be awarded a hefty 25 marks are earmarked for "need" criteria. The "need" criteria is decided on the basis of family income and the employment status of the other family members. If the income of the family of the candidate exceeds Rs.1,50,000/- or there is any member of the family who is in Government employment, the candidate would be awarded less or no marks under this heading. This would effectively mean that a candidate whose family income exceeds the said ceiling or who has a member of the family who is in Government employment, would suffer a serious handicap as against other candidates in whose cases neither of the two disqualifications are attached. Such a candidate would be effectively knocked out of contention for selection since out of 25 marks to be allotted against the said head he would be awarded „0‟. As compared to this, a candidate whose family income does not exceed the said ceiling and no other member of the family is in Government employment, would secure full 25 marks. On other counts even if the former candidate is far suited for the job in question, he would not be selected. Such a candidate may have better qualifications, better competence and better credentials but would lose out in the selection simply because some member of the family may be in Government employment or the family income exceeds Rs.1,50,000/- in the previous year.

Selection to public employment cannot be made on such basis. Article 14 is a general clause providing for equality amongst all citizens. Article 16 which is a sub-specie of Article 14 ensures equality in public employment. The "need" criteria noted above seriously breaches equality in public employment. It creates sub-classification between a homogeneous class of eligible candidates. It effectively knocks a candidate out of contention who does not cross the hurdles of "need" criteria. It effectively restricts the public employment in favour of those candidates whose family annual income is not more than Rs.1,50,000/- and no other member of the family is in Government employment, excluding the rest of the candidates who are otherwise eligible and meritorious but do not fall within these two criteria. It is well settled that Article 14 prohibits class legislation but not reasonable classification. For such a classification to be termed as reasonable, however, the twin tests laid down by the Supreme Court through series of judgments and in particular discussed in 7 Judge Bench judgment in case of Budhan Choudhry and others vrs. State of Bihar reported in AIR 1955 SC 191 must be satisfied. Such tests are that the criteria must be based on some intelligible differentia distinguishing a class of persons from the rest and that such distinction must have a rational relation to the purpose sought to be achieved by the legislation. In the present case, I do not find that the "need" criteria clause satisfies the latter test.

The term "family" has not been defined in the said guidelines. However, going by the general perception of the said term, this "need" criteria would effectively mean that a candidate who comes from a family where 3 or 4 earning members such as his father, brothers, unmarried sisters etc. together earn more than Rs.1,50,000/- per annum, he would be virtually disqualified from selection to a Government post. This would be irrespective of the fact that it is a case of the joint family and the brothers as earning members of the family may have their own branches and the families to support. This would also mean that if the brother, sister, father or mother of a candidate is in Government employment, he or she can effectively never stake the claim to a Government post. A person may be in the lowest rung of Government employment. He cannot hope to secure service on a higher post because he would not satisfy the "need" criteria. These conditions can lead to absurd situations. Take a case where the father of a candidate is in Government service and whose annual income is more than Rs.1,50,000/-; but for whatever personal reasons, is not willing to maintain his son. As an adult son, he cannot seek maintenance even under Section 125 of Cr.P.C. But when it comes to judging his suitability for Government job, he would be told that he does not satisfy "need" criteria and will thereafter start with a handicap of 25 marks against those who satisfy it. Public employment is to be offered on the basis of suitability of the candidates; the most suitable candidate would have the first preference. A candidate‟s financial or family handicaps are not elements of his suitability. This "need" criteria, therefore, completely defies logic, is irrational and effectively disqualifies eligible and meritorious candidates from seeking Government employment. The same must, therefore, be held unconstitutional.

In case of Tanmoy Nath and others vrs. State of Tripura and others reported in (2014) 2 TLR 731 somewhat similar issue came up for consideration of the Division Bench. It was a case in which a certain percentage of vacancies were reserved for persons were classified as living below the poverty line on the "need" basis. In this context, it was observed as under:

"70. This is another contentious issue raised in the petitions. According to the petitioners, the Constitution of India does not permit any reservation on economic basis. The stand of the State is that with a view to uplift the people who are below the poverty line it reserved 30% seats for such people. It is argued that this is horizontal reservation and does not amount to vertical reservation. In support of its contention, the State has also urged that the idea of "creamy layer" in respect of OBC is also based on economic grounds and, therefore, preference could be given to the weaker sections. Therefore, the State has justified the reservation of 30% seats for those who are below the poverty line."

Thereafter referring to the judgment of the Supreme Court in case of Indra Sawhney vrs. Union of India and others reported in 1992 (Suppl.) 3 SCC 217 it was observed as under:

"76. It is thus obvious that for a class of citizens to be declared as a backward class, it must be socially backward. Identification of backward classes can be done with reference to caste, their occupation and even income relatable to such castes or occupation. However, there can be no identification of backward classes of citizens only and exclusively with reference to economic criteria.

Reliance has been placed by the learned Advocate General on the judgment of the Apex Court in Society for Unaided Private Schools of Rajasthan v. Union of India and another, [(2012) 6 SCC 1], wherein reservation of 25% for admission in Class I based on economic or financial backwardness was upheld. We are of the view that this judgment has no applicability to the facts of the present case. The Apex Court was dealing with a matter where private unaided schools had challenged the provisions of the Right to Education Act whereby 25% seats in private schools were reserved for the poor people on the basis of economic or financial backwardness. The Court was dealing with the provisions of Article 15(4), and not 16(4). The Court was also concerned with Article 21A which gives right of education to children up to the age of 14. It is in this context that the Apex Court upheld the validity of the Act. The Apex Court, however, did not in any manner dilute the law with regard to identification of backward classes only on the basis of economic criteria as laid down in Indra Sawhney's case.

Faced with this situation, learned Advocate General and Sri B.R. Bhattacharjee submitted that those citizens who are below the poverty line form a class of citizens who are so poor that they can be presumed to be socially backward also.

We are afraid that such contention cannot be accepted in view of the law laid down by the Apex Court. The State in its reply has given no justification except saying that the idea was to help the poorest of the poor. We are not going into the question as to whether such idea is good or bad. We are only to see whether such reservation is permissible under the Constitution or not. As the Constitution stands today and in view of the law laid down in Indra Sawhney's case, there can be no reservation only on economic basis and as such, we have no hesitation in holding that the 30% reservation on need basis is totally unconstitutional and is accordingly set aside."

In view of such conclusions and in obtaining facts the relief in the favour of the petitioners must be moulded. It is not necessary to unsettle the selection of the private respondents at this distant point of time. Nor petitioners can hope to secure employment only on the basis of this declaration. For the purpose of these petitions, therefore, the respondents would be asked to eliminate the marks under the head of "need" criteria in case of the petitioners and for comparison, in case of all selected candidates who belong to unreserved category. After eliminating such marks, the official respondents shall prepare a result sheet in the order of merits drawn on the basis of marks awarded to the respective candidates under the remaining headings. If on such basis the petitioners or either of them is/are found to be more meritorious than the last selected candidate, he would be offered appointment on the existing vacancy for an unreserved candidate on the post in question or against the first available vacancy which may arise in future. Any such appointment would be prospective and would carry no weightage for the past period for any purpose. This exercise shall be carried out within a period of 4(four) months from today.

Petitions are disposed of accordingly.

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