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2022 DIGILAW 187 (TRI)

Tanmoy Deb v. State of Tripura

2022-04-12

INDRAJIT MAHANTY, S.G.CHATTOPADHYAY

body2022
JUDGMENT Indrajit Mahanty; CJ. - Heard Mr. Sankar Deb, learned senior counsel appearing for the appellant and Mr. Debalay Bhattacharjee, learned Government Advocate appearing for the respondents No.1 to 4, Mr. D.P. Kundu, learned senior counsel assisted by Ms. R. Guha, learned counsel appearing for the respondent No.7 as well as Mr. Somik Deb, learned senior counsel appearing for the respondents No.8 to 23 except respondent No.11. 2. Challenge in the present writ appeal has been made to a judgment dated 26.04.2021 rendered by the Hon'ble Single Judge dismissing W.P.(C) No. 1172 of 2019 in which one Dr. Tanmoy Deb being the petitioner had sought to challenge a notification issued by the State of Tripura dated 28th September, 2016 by virtue of which 34(thirty four) nos. of doctors were appointed as Assistant Professor (Group-A, Gazetted) in terms of Rule 29 of the Tripura Medical Education (Administrative & Faculty) Service conditions Rules, 2015 (hereinafter to be referred to as "Tripura Medical Education Rules, 2015") on the basis of recommendations of the Selection Committee and with the concurrence of the Tripura Public Service Commission (TPSC, for short). 3. Mr. Sankar Deb, learned senior counsel appearing for the appellant, inter alia, drew our attention to an earlier judgment & order passed by this Court in W.P.(C) No. 532 of 2012 [reported in (2016) 1 TLR 843]. In the said judgment the writ petition had come to be allowed with various directions issued to the State which read as under: '26. In view of the discussions made above, both the writ petitions are disposed of with the following directions:- (i) The advertisement dated 25.06.2012 (Annexure-5 to the writ petition) for ad hoc appointment to the posts of Assistant Professor and the ultimate ad hoc appointments dated 18.09.2012 (Annexure-7 to the writ petition) were made in violation of the provisions of the recruitment rule and, therefore, liable to be interfered and accordingly quashed. (ii) The ad hoc appointment made by order dated 18.09.2012 (Annexure-7 to the writ petition) shall continue till 30.06.2016 and from 01.07.2016 the ad hoc appointments made pursuant to letter of appointment dated 18.09.2012 shall stand terminated without any further reference. (iii) Process for appointment, at all level of AGMC, strictly in accordance with the rules, in a transparent, objective and credible manner should be completed within 30.06.2016. (iii) Process for appointment, at all level of AGMC, strictly in accordance with the rules, in a transparent, objective and credible manner should be completed within 30.06.2016. (iv) The petitioners, private respondents, ad hoc appointees and similarly all others, who were eligible for promotion/direct recruitment on the date of advertisement dated 25.06.2012, shall be allowed and/or considered to participate in the selection process, if necessary with relaxation of age etc. (v) It is left to the wisdom of the State respondents to decide in respect of absorption in the posts of Basic Teacher (Tutor/Registrar) in accordance with the provisions prescribed in the rules and taking into account the services already rendered by the petitioners and other similarly situated persons.' 4. Mr. Deb, learned senior counsel appearing for the appellant, fairly admits that the present appellant (writ petitioner) was not a party in the said proceedings, but claims and submits that this judgment of the Hon'ble Single judge was in rem. It is submitted on behalf of the appellant that the State of Tripura instead of complying with the directions issued by this Court in the aforementioned writ petition proceeded to 'absorb' the private respondents under Rule 29 of the Tripura Medical Education Rules, 2015. He further contends that if the judgment of this Court in W.P.(C) No. 532 of 2012 had been given effect to by the State of Tripura, it may not have necessitated exercise of power of absorption by the State. He further contends that the private respondents were otherwise also ineligible for being considered for absorption inasmuch as appointments of several private respondents as Assistant Professor on ad-hoc basis had been set aside by the Hon'ble Single Judge in the aforesaid case. 5. Learned counsel appearing for the State, on the other hand, categorically submitted that the rules framed under Tripura Medical Education Rules, 2015 had been promulgated during the pendency of W.P.(C) No. 532 of 2012 and this enactment or rule was never brought to the notice of the Hon'ble Single Judge at the time of disposal of the writ petition. He further submits that in terms of the Tripura Medical Education Rules, 2015 options have been sought for from eligible candidates and a Selection Committee had been constituted for the purpose of suggesting absorption in terms of the rules. He further submits that in terms of the Tripura Medical Education Rules, 2015 options have been sought for from eligible candidates and a Selection Committee had been constituted for the purpose of suggesting absorption in terms of the rules. In the interregnum while the private respondents had opted for being considered for absorption, admittedly the appellant herein had never exercised any such option and it is stated on behalf of the appellant that he did not exercise the option because he was otherwise ineligible for 'absorption' as on the said date. 6. Mr. Somik Deb, learned senior counsel appearing for the private respondents, further contends that since the appellant herein neither had opted for absorption nor was eligible for consideration of absorption, no question of challenge to the order of absorption under notification dated 28th September, 2016 ought to have been maintained. Apart from that, it is submitted that several of the respondents in the present appeal are persons who have been appointed in various/different disciplines for which in any event the appellant does not possess the necessary educational qualifications. In other words, it is submitted that apart from the private respondent No.7 who has been absorbed into the ENT Department, all the other respondents possess educational qualifications distinct and different from those of that acquired by the appellant. 7. We have perused the order impugned, gone through the documents appended to the writ petition and we are of the considered view as follows: (i) The present writ petition has been filed by Dr. Tanmoy Deb, who, it is submitted, has obtained a post-graduate degree in ENT. Admittedly, in the present case, when the options were sought for under the 2015 regulations, Sri Tanmoy Deb neither was eligible to apply nor did he, in fact, apply. It is true that the consequence of absorption would have an impact on direct recruitment vis-a-vis availability of vacant positions. However, we are of the considered view that since the State had promulgated the regulations under the Tripura Medical Education Rules, 2015 and for the reasons as explained in the notification itself, a process of selection was adopted, concurrence of the TPSC was obtained and thereafter impugned notification dated 28th September, 2016 under Annexure-11 was passed. However, we are of the considered view that since the State had promulgated the regulations under the Tripura Medical Education Rules, 2015 and for the reasons as explained in the notification itself, a process of selection was adopted, concurrence of the TPSC was obtained and thereafter impugned notification dated 28th September, 2016 under Annexure-11 was passed. (ii) We, in our considered view, have come to a finding that a person who neither had exercised the option for absorption nor was eligible for such absorption could have had any locus standi to challenge the same. However, insofar as the contentions raised by the learned counsel for the appellant vis-a-vis the State not having complied with the directions passed by the Hon'ble Single Judge in the earlier writ petition i.e. W.P.(C) 532 of 2012 is concerned, we may note that although learned Government Advocate appearing for the State advanced various explanations as to what steps have been taken by the State in this regard, however, we are of the considered view that such submissions need not be noted for the simple reason that the present proceeding is one where the absorption of the private respondents into the Tripura Medical Education Service is the subject matter of challenge and not direct appointment or promotion. (iii) We are further of the considered view that in the present case we are exercising appellate jurisdiction over the impugned order passed by the Hon'ble Single Judge where the notification of 'absorption' has been questioned. In other words, we make it clear that we are not in exercise of either contempt jurisdiction or a jurisdiction where question of direct appointments or promotion is the subject matter of adjudication. (iv) Consequently, we are of the view that for the reasons as noted hereinabove, the present appeal has no legs to stand on and we agree to the conclusions arrived at by the Hon'ble Single Judge in the impugned judgment. However, we make it clear that if and when any challenge is made or raised against the alleged non-compliance by the State of the earlier directions passed in W.P.(C) 532 of 2012 is concerned, in the event of direct recruitment or promotion our judgment shall not stand in the way of consideration thereof and the appeal shall be considered on its own merits. 8. With the aforesaid observations, the writ appeal stands dismissed. 8. With the aforesaid observations, the writ appeal stands dismissed. Pending application(s), if any, also stands disposed of.