Tridib Kumar Deb And Ors vs State Of Tripura And Ors

[1] Being aggrieved by the action of the respondents, by not extending the benefit as provided under paragraph 125 in the judgment of Tanmoy Nath Vs. State of Tripura reported in (2014) 2 TLR 735 the petitioners have approached this court by filing the writ petition. The petitioners are appointed afresh after termination of their service. It has been urged that the respondents be directed to add their service which they rendered till termination for purpose of seniority, fixation of pay and counting of the past service for extending the resultant benefits including pension etc.

[2] There is no dispute that while this court had cancelled the recruitment, certain leeway was provided to the affected person. In para-125, this High Court in Tamoy Nath (supra) has observed as follows:

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 are 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.

[3] even there is no dispute that the petitioners have been appointed afresh in terms of the offers of appointment under No.F.1(1-46)-SE/E(NG)/2017(Vol-I) dated 20.10.2017, 24.10.2017 and 29.06.2018, (Annexure- 4 collectively to the writ petition). On being terminated, in terms of Tanmoy Nath (supra), they were not given the protection benefit as envisaged in para-125 of Tanmoy Nath (supra). Such deprivation is evident from the offer of appointments (Annexure-4 to the writ petition). All the petitioners urged this court by means of this writ petition to direct the respondents to give such benefit. The foundation of such relief is located at para-122 and 123 of Tanmoy Nath (supra). For purpose of reference, those paragraphs are reproduced hereunder:

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.

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.

[4] It is pertinent to note that the writ petitioners, namely Tridib Kumar Deb (1), Prasenjit Datta (3), Poren Uchoi (4) and Madhurima Chakraborty (9) were terminated as post-graduate teachers and are appointed afresh as the post-graduate teachers. The petitioners, namely Pradip Kumar Minj (2), Manimoy Das (5), Ratu Das (6) and Pipasi Chakma (7) were terminated as graduate teachers and are appointed as graduate teachers afresh.

[5] There is no dispute that after appointment of the petitioners by the memorandum No. F.1(1-46)-SE/E(NG)/2010 dated 25.03.2010, 15.07.2010 and 17.08.2010 as the post graduate teachers and graduate teachers (Annexure-1 to the writ petition). They had received regular scale of pay against their respective post in the earlier recruitment by the memorandum No.F.1(1-34)-SE/E(NG)/2015 (Vol-I) dated 05.11.2015, 28.12.2015 and 31.07.2015 on their completion of five years as the fixed pay teacher. Thereafter, their services were terminated, but they were allowed to continue for a further period by intervention of the court, but after attaining the eligibility and through the fresh selection process they have been appointed by the respondents, but without giving any benefit of the said paragraph 125 of Tanmoy Nath (supra). As is evident that in Tanmoy Nath (supra), the state-respondents were directed to carry out and complete the fresh appointments against the consequential vacancies vice the termination within 31.12.2014.

[6] The respondents by filing their reply has categorically contended that the petitioners cannot get the benefit of paragraph 125 of Tanmoy Nath (supra). It has been asserted that liberty has been given to the terminated teachers to take part in the fresh selection process and if selected their service so rendered earlier, meaning before the fresh appointment, shall be counted for purpose of seniority, pension and all other purpose. The respondents challenged that judgment in the apex court and by the order dated 29.03.2019, the following directions were given:

(a) New Employment Policy should be framed by the State by 30th 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 31st 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 advertisement 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 will be governed by the provisions of the Right of Children to Free and Compulsory Education Act, 2009 and the procedure shall be in conformity with the relevant 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.

[7] The respondents in terms of the direction in Tanmoy Nath (supra) has revised the employment policy and framed the recruitment rules for teachers of different categories on observing guidelines of National Counsel for Teacher Education (NCTE). Thereafter, the petitioners are appointed following the procedure. The respondents have contended that the petitioners are appointed as post graduate teacher/graduate teachers on fixed pay basis during the year 2017. At that time, the petitioners were on ad-hoc service. However, with their appointment on fixed pay basis, the petitioners claimed the benefit in terms of para-125 of Tanmoy Nath (supra). They have asserted that the petitioners No. 1, 3, 4 and 9 were post graduate teachers in the year 2010. After termination they are appointed in the same post of post graduate teachers prior to their service came to an end on 31.12.2017. Even the petitioner No.2 was similarly appointed as graduate teachers prior his service came to an end on 31.12.2017 but the petitioners No.5, 6, 7 & 8 who were previously graduate teachers being appointed in the year 2010, are appointed afresh in the year 2018 i.e. after termination of their service on 31.12.2017 as per the order of the apex court. Their appointment turned to on ad-hoc basis for sometimes and as such according to the respondents, they are not entitled to get pay protection, seniority etc.

[8] Mr. Somik Deb, learned counsel has submitted that this case is well covered by a decision of this court in Babul Debnath and Ors. vs. State of Tripura and Ors. (order dated 21.01.2019 delivered in WP(C) 435 of 2018, where this court having extensively referred Tanmoy Nath (supra) has observed as under:

"5. It is not in dispute that insofar as para 125 reproduced (supra), with emphasis is concerned, has attained finality.

The State is bound to comply with the same.

To our reading, if any one of the already selected candidates are again selected in terms of the fresh selection process, then their earlier services so rendered by them has to be counted for the benefit of seniority, pension and all other purposes.

Before us, it is not in dispute that the present writ petitioners, pursuant to the directions issued by this Court reproduced(supra) had participated in the fresh selection process so undertaken by the Government. It is also not in dispute that they stand selected, in accordance with law. Also letters of appointment stand issued, which they accepted and the petitioners posted with their joining at the appropriate places of posting. Their selection and appointment is to the very same post to which they earlier stood selected and appointed.

It is the petitioners grievance that notwithstanding the directions issued by this Court, unambiguous in nature, the State Government, in utter disregard, rather in contempt, have issued fresh letters of appointment, completely ignoring the past services so rendered by them and treating their service as a fresh from the date of their selection so undertaken pursuant to and in terms of fresh selection process.

Well, to our mind, this exercise undertaken by the Government is not in the spirit, rather in utter disregard of the directions issued by this Court. The directions as we have already expressed are unambiguously clear. Past service rendered by a candidate, who was selected and had discharged his/her duties had to be counted for the purposes of seniority, pension and all other benefits. Candidates stood selected to the very same post.

As such, in our considered view, the writ petition needs to be allowed with a direction to the State to treat the past service Page 14 of 14 of each one of the petitioner(s), so rendered in relation to the earlier selection process, for the purposes of seniority, pension and all other benefits. All consequential action shall positively be undertaken by the State within a period of 3(three) months. Equally, monetary benefits, if any, shall be disbursed within the aforesaid period."

[9] Mr. D. Sharma, learned Addl. G.A. has precisely submitted that since the petitioner No. 5, 6, 7 and 8 were offered to the post of graduate teachers on fixed pay basis by the memorandum dated 29.06.2018 and 30.06.2018 (part of Annexure-4 to the writ petition), their appointment were made evidently after 31.12.2017 and hence, they cannot get the benefit of para-125 of Tanmoy Nath (supra) or Babul Debnath (supra). Mr. Somik Deb, learned counsel to repel the said submission has referred, firstly the order dated 29.03.2017 in the series of SLPs filed from Tanmoy Nath (supra).

[10] Having referred to para-123 (as reproduced), the apex court has directed that the fresh selection be completed on or before 31.12.2017 and till the fresh selection is completed the appointments which were terminated be kept in force and the 'terminated teachers' shall continue. Accordingly, the direction contained in para-123 was modified by the said order dated 29.03.2017 by extending the time for completion of selection by not later than 31.12.2017. The said order dated 29.03.2017 was again modified by the apex court by their order dated 14.12.2017. The relevant part of the said order is extracted as under:

"Time granted by this Court in terms of order dated 24th October, 2017 is extended till 30th June, 2018, subject to condition that the judgment dated 29th March, 2017 will be strictly complied with. On 31st December, 2017 the tenure of the incumbents will come to an end. Thereafter, their appointment will only for six months on ad-hoc basis on such fresh terms as the State Government may impose."

[11] According to Mr. Deb, learned counsel, this is an extension of time in the same manner as reflected in the order dated 29.03.2017. Thus, for purpose of para 123, the time was extended subject to condition as laid down in the judgment dated 29.03.2017.

[12] Mr. Sharma, learned Addl. G.A., however, has not raised any serious objection in respect of the said submission. Be that as it may, if para-123 of Tanmoy Nath (supra) is read with the order dated 29.03.2017, it may be deemed that the time was extended till 30.06.2018. But none of the parties has produced order dated 24.10.2017. But a complete reading of the order dated 14.12.2017 make it appear that the direction is to complete the selection in order to fill up the vacancies of teachers of various categories by not later than 30.06.2018. Even the petitioners No. 5, 6 7 and 8 were appointed on 30.06.2018. So far the petitioners No. 1, 2, 3 and 4 are concerned, Mr. Sharma Addl. G.A. has admitted that they were appointed before 31.12.2017. Thus all the petitioners are entitled to get the similar benefit as extended by Babul Debnath (supra).

Hence, the respondents are directed to add the service of each one of the petitioners so rendered on the earlier appointment for purpose of seniority, pension and all other benefits. All consequential action shall positively be by the state within a period of 3 (three) months from today. Equally, monetary benefit, if any, shall be released within the said period.

In terms of the above, this writ petition stands allowed.

No order as to costs.