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2020 DIGILAW 108 (TRI)

Raju Nath v. State of Tripura

2020-09-15

S.TALAPATRA

body2020
JUDGMENT 1. Heard Mr. K.N. Bhattacharjee, learned senior counsel assisted by Mr. S. Pandit, learned counsel appearing for the petitioners as well as Mr. D. Bhattacharjee, learned GA appearing for the state-respondents. None appears for the private respondents despite due notice from this court. 2. These writ petitions being W.P.(C) No.134 of 2015 [Sri Raju Nath & Ors. v. the State of Tripura & Ors.] and W.P.(C) No.135 of 2015 [Sri Amir Chandra Nama & Ors. v. the State of Tripura & Ors.] are combined for disposal by a common judgment and order as these writ petitions are set in an identical facts. That apart, in both the writ petitions, the reliefs are common viz. to set aside the Revised Employment Policy published under No.F.1(4)- GA(P&T)99 dated 26.015.2012012 [Anexure-3 to the writ petition being W.P.(C) No.135 of 2015]. Further, the petitioners have urged this court to issue writ of mandamus directing the respondents to appoint them in the post of Pharmacist [Allopathy] from the date when the private respondents No.3 to 10 in W.P.(C) No.134 of 2015 and the private respondents No.3 to 14 in W.P(C) No.135 of 2015 were appointed. 3. The facts, essential to adjudicate the challenge, may be introduced in brief, at the outset. There is no dispute that the respondent No.2 issued the notification dated 30.10.2013 for holding walk-in-interview for filling up of various posts under the Health and Family Welfare Department, Government of Tripura. Serial No.5 of the notification is concerned with the vacancies for the post of Pharmacist [Allopathy]. There were 73 posts. Out of which, 7 posts were reserved for SC candidates, 53 posts were reserved for ST candidate and 13 posts were reserved for UR category candidates. In the said notification, the age limit including the eligibility criteria for the candidates were provided. Even the date of interview was notified. After the interviews which were held on 18.11.2013 and 19.11.2013, the respondent No.2 declared the panel of the selected candidates. The private respondents got selected but the petitioners were not. According to the petitioners, the walk-in-interview was supposed to be conducted in terms of the Revised Employment Policy as notified by the memorandum dated 26.05.2012 read with the corrigendum dated 02.06.2012. 4. The private respondents got selected but the petitioners were not. According to the petitioners, the walk-in-interview was supposed to be conducted in terms of the Revised Employment Policy as notified by the memorandum dated 26.05.2012 read with the corrigendum dated 02.06.2012. 4. In these writ petitions, the petitioners have raised two objections to challenge the said selection-one in respect of validity of the employment notification, inasmuch as according to them, out of total 73 posts for the post of Pharmacist [Allopathy], 60 posts were reserved for SC & ST category candidates beyond the permissible limit of 50% of the total vacancies in a year. According to the petitioners, the said Revised Employment Policy, 2012 is arbitrary and illegal policy which cannot sustain the scrutiny of law. 5. Mr. K.N. Bhattacharjee, learned senior counsel appearing for the petitioners has submitted that one paramateria policy which was published by the memorandum dated 20.08.2003 had been interfered by this court by a common judgment and order dated 07.05.2014 delivered in W.P.(C) No.51 of 2014 [Tanmoy Nath & Ors. v. the State of Tripura & Ors.]. In Para-121 of the said judgment, this court had held that "most of the clauses of the policy are illegal and unconstitutional". Thus, the entire policy was declared inoperative. As consequence thereof, "the entire selection" as observed in the said judgment 'will have to be, must be and is accordingly set aside". Mr. Bhattacharjee, learned senior counsel has submitted that on the same grounds, the entire Revised Employment Policy, 2012 is also liable to be set aside. In Para-127 of the said judgment dated 07.05.2014, this court has observed that the judgment shall be prospective in nature and shall not affect the appointments already made unless the appointments are already under challenge before the court on the ground that the employment policy was illegal. According to Mr. Bhattacharjee, learned senior counsel, the same analogy may be applied by this court for examining the vires of the Revised Employment Policy, 2012. The writ petitioners have also raised that if a comparative data is prepared in terms of the factors as laid down in the Revised Employment Policy, 2012, the petitioners would be assessed far better than the private respondents are assessed. Finally, Mr. Bhattacharjee, learned senior counsel has submitted that recently this court has passed one judgment [Somen Baidya v. State of Tripura and Ors. Finally, Mr. Bhattacharjee, learned senior counsel has submitted that recently this court has passed one judgment [Somen Baidya v. State of Tripura and Ors. : judgment and order dated 10.02.2020] where this court has not interfered the selection process, but on observing certain infirmities in the process directed the respondents to consider the petitioner for appointment in the post of Pharmacist [Allopathy] against the vacancy, if available and if required, by adjustment. 6. Mr. D. Bhattacharjee, learned GA appearing for the respondents has submitted that these writ petitions are hit by the doctrine of estoppel by conduct inasmuch as the Revised Employment Policy, 2012 was in the public domain much before the employment notification. Even the notification had shown the division of the vacancies between UR category and the reserved categories, but the petitioners had participated in the walk-in-interview for selection without any demur questioning the employment notification, so far the question of division of the vacancies was concerned. Even they did not raise their objection in respect of various clauses of the Revised Employment Policy. Mr. Bhattacharjee, learned GA has further submitted that the private respondents being in the UR category have been selected on the basis of the marks obtained in the interview. The petitioners have not been selected as they had secured lesser marks than the private respondents. According to them, there is no infirmity in the Revised Employment Policy, 2012. Thus, the writ petitions are not maintainable. In Para-10 of the reply, the state-respondents have stated as follows: " the selection of the candidates are made observing all formalities and on the basis of viva personality marks obtained from the interview board. The selection of the candidates was made on the basis of viva & personality marks given by the interview board. So there is no question of any illegality or arbitrary and the petitioner cannot be appointed w.e.f. the date of appointment of the respondents as the petitioners were not in the selection list of the Committee." 7. Mr. Bhattacharjee, learned GA has submitted that no bias or mala fide has pleaded against the Selection Committee. Even the members of the Selection Committee [the Interview Board] are not impleaded as the party-respondents. Mr. Bhattacharjee, learned GA has contended that the interview process was finalized following formalities of interview. Mr. Bhattacharjee, learned GA has submitted that no bias or mala fide has pleaded against the Selection Committee. Even the members of the Selection Committee [the Interview Board] are not impleaded as the party-respondents. Mr. Bhattacharjee, learned GA has contended that the interview process was finalized following formalities of interview. Members of the Selection Committee had given the marks on the basis of viva and personality test to each candidate. The state-respondents have produced the entire tabulation sheet of the walk-in-interview held on 18th and 19th November,2013 with the reply. According to them, from the scrutiny of the said tabulation sheet, it would be apparent that the private respondents got the higher marks in the respective categories and as such, the petitioners could not be accommodated in the select panel. Mr. Bhattacharjee, learned GA has submitted that in the writ petitions, the petitioners have failed to show that there was a mala fide intention or the Selection Committee had followed a highly unreasonable process and thus, the petitioners were seriously prejudiced. It is well-established that if the integrity of the process of selection is challenged, in absence of impleadment of the selection committee and its members, the court is not supposed to pass any adverse order. 8. This Court is in total agreement with Mr. Bhattacharjee, learned GA that the petitioners were aware that 60 vacancies had been declared for the reserved categories [ST & SC] and the remaining 13 posts were for UR category. The petitioners were aware of the Revised Employment Policy, 2012 before they had appeared for their selection to the post of Pharmacist [Allopathy]. The petitioners are, therefore, estoped from challenging the action of the respondents after their participation and finding them unsuccessful in the process. In this regard, this court would intend to rely 2[two] reports of the apex court. In Madan Lal & Ors. v. State of J&K & Ors., reported in (1995) 3 SCC 486 , it has been observed by the apex court that "the petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus, the petitioners took a chance to get themselves selected at the said oral interview. Thus, the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted." On the basis of the said principle as laid down by the apex court, the challenge based on the comparative merit stands discarded. 9. In Manish Kumar Shahi v. State of Bihar, reported in (2010) 12 SCC 576 , it has been observed by the apex court that "after having taken part in the process of selection knowingfully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition." In this case also after participating in the selection process, the petitioners have challenged the Revised Employment Policy, 2012 and such challenge has been made only to question the selection process. After participation, the petitioners ought not have raised such objection on noticing their failure in the process. Hence, they are estopped to raise any objection against the assessment of performance of the candidates who appeared in the walk-in-interview. 10. In addition, another decision of the apex court has its ramification over that question. In Ramesh Chandra Shah and others v. Anil Joshi and others, reported in (2013) 11 SCC 309 , the apex court has held as under: "24. 10. In addition, another decision of the apex court has its ramification over that question. In Ramesh Chandra Shah and others v. Anil Joshi and others, reported in (2013) 11 SCC 309 , the apex court has held as under: "24. In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents." 11. The said principle, as curved out, may be applied to discard the challenged as raised in these writ petitions. Accordingly, the challenge against the outcome of the selection process and the constitutionality of the Revised Employment Policy, 2012 shall fall apart. As consequence thereof, the writ petitions are liable to be dismissed and accordingly, those are dismissed. The respondents are directed that the petitioners, if applied, for appointment against the available vacancies of Pharmacists [Allopathy], their case may be considered. If the applications are so made, the State shall consider such application within a reasonable time, but by any rate not beyond 4[four] months from the date when the respondents will receive a copy of this order. There shall be no order as to costs.