Allowed

Tamal Debnath v. the State of Tripura and Ors.

Tripura HC23 Aug 2017WP(C)/1053/2017

Case brief

AI extract

What is this about?

In a writ petition regarding unfilled Reserved vacancies, the High Court instructed State Departments to de-reserve posts remaining vacant for an extended period under State Rules. The Court ordered that if suitable reserved candidates from a surviving merit panel are unavailable, the petitioner may be appointed against these de-reserved vacancies.

What did the court decide?

Respondents directed to take exercise to de-reserve posts within 4 months for administrative efficiency; petitioner to be considered for appointment against de-reserved vacancies.

Tamal Debnath Vs the State of Tripura and Ors. — Pension and Retirement Benefits | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA AGARTALA

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WP(C) NO.1053 OF 2017

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Sri Tamal Debnath, s/o -Anil Ch. Debnath, R/O-Hapania Chowmuhani Para, P.O.- Agartala, P.S. Amtali, District:- West Tripura.

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…………Petitioner.

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– Vs –

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The State of Tripura, represented by its Secretary cum Commissioner to the Department of Public Works Department, Govt. of Tripura, P.O.- Kunjaban, P.S.- New Capital Complex, District- West Tripura.

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The Secretary cum Commissioner, Department of Rural Development, Govt of Tripura, P.O.- Kunjaban, P.S.- New Capital Complex, District- West Tripura.

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Tripura Public Service Commission, represented by its Secretary, Akhaura Road, P.O.- Agartala, P.S.- West Agartala, District- West Tripura.

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The Secretary-cum-Commissioner, Department of Tribal Welfare, Govt. of Tripura, P.O.- Kunjaban, P.S.- New Capital Complex, District- West Tripura.

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………… Respondent

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B E F O R E THE HON’BLE MR. JUSTICE S. TALAPATRA

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For the Petitioner : Mr. A. Bhaumik, Advocate For the respondents : Mr. T. Dutta Majumder, GA Mr. P. Dutta, Advocate.

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Date of delivery of : 23.08.2017. Judgment and order

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Whether fit for reporting : NO.

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WP(C) NO.1053 OF 2017

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Judgment and Order (Oral)

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By means of this writ petition, the petitioner who had participated in the selection process initiated in pursuance to the advertisement No.02/2016 issued by Tripura Public Service Commission, the respondent No.3 for the post of Junior Engineer, Tripura Engineering Service, (Grade-V) (B) (Civil) under the Public Works Department and Junior Engineer, (Grade-II) (Civil) under the Rural Development Department against the available vacancies. As per the said advertisement there were total 42 vacancies in the post where the petitioner had participated.

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According to the petitioner, he came out successful in the combined competitive written examination which was conducted on 06.09.2016 and 07.09.2016 for those posts. In the notification dated 10.4.2017, Annexure-3 to the writ petition No.1052 of 2017, which contained the list of the successful candidates, the name of the petitioner figured there. The petitioner was called upon to appear for the interview by the call letter dated 02.05.2017, Annexure-4 to the writ petition No.1052 of 2017. On 14.07.2017, the respondent No.3 issued a notification dated 14.07.2017, Annuxure-5 to the writ petition No.1052 of 2017 showing the names of the candidates who were recommended for the post of Junior Engineer, TES, Grade-V (B) and Junior Engineer Grade-II (Civil).

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In the Scheduled Tribe (ST) category only 21 candidates were recommended against the available 66 vacancies. Thus it has become abundantly clear that although there were 45

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WP(C) NO.1053 OF 2017

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vacancies specifically earmarked for the ST candidates, but for non-availability of the suitable persons those vacancies could not be filled up and there had been no recommendation from the respondent No.3.

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The petitioner in para-10 of the writ petition has asserted as under:

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“ That, the Petitioner states that aforesaid ST posts are being carried forward since 2009, but could not be filled up due to non-availability of suitable ST candidates. It is highlighted that, the Respondent No.3 issued an Advertisement No.11/2009 and in the said Advertisement 151 posts of Jr. Engineer, TES GR-V ( B) was notified and out of the said 151 posts of Jr. Engineer, GRV(B), 56 posts belong to ST category. Out of the said 56 ST posts, only 7 ST candidates were recommended and thus it is clear that, 49 ST posts were carried forward in the Recruitment Year-2009. Thereafter, in the year 2013, another Advertisement was issued by the Respondent No.3 and this time there was 102 posts of Jr. Engineer, TES, Gr-V (B) under the Respondent No.1 and 35 posts of Jr. Engineer, TES, Gr-ii under THE Respondent No.2. Out of the said 102 posts of Jr. Engineer, TES, Gr. -V (B) and 35 posts of Jr. Engineer, TES, Gr.-II (Civil) total post allocated to Schedule Tribe was 56. Out of the said 56 posts, 19 candidates were recommended in the ST category and thus, 37 posts were again carried forward.”

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On the said premises as narrated in para-10 of the writ petition, it has been submitted for the petitioner that out of those carried forward posts, again 45 posts could not be filled up. Even though the petitioner was selected but he could not be recommended for appointment to the post of Junior Engineer, TES, Grade-V (B) and Junior Engineer, Grade-II (Civil) in the respective Department as stated earlier.

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Mr. A. Bhowmik, learned counsel appearing for the petitioner has submitted that in M. Nagaraj & others Vs. Union

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of India & Ors. reported in ( 2006) 8SCC 212 , the concept of time cap has been developed further by observing that a reserved post cannot be carried forward for more than a period of 3 years due to non-availability of reserved category candidates. In the interest of administration, those posts are to be filled up with UR candidates and later on the same would be adjusted. In Nagaraj (supra) the Apex Court has observed as under:

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“100.......................On one hand of the spectrum, we have unfilled vacancies; on the other hand, we have a time spread over a number of years over which unfilled vacancies are sought to be carried over. These two are alternating factors and, therefore, if the ceiling limit on the carry over of unfilled vacancies is removed, the other alternative time factor comes in and in that event, the time-scale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the time-scale is not kept then posts will continue to remain vacant for years, which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the time-cap depending upon the fact situation.................”

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As stated above, Article 16(4-B) elucidates 50 percent cap on carried forward vacancies (backlog vacancies). The ceiling limit of 50 per cent on current vacancies continues to remain. In working out the carry forward rule, two factors are required to be kept in mind; as observed in M.Nagaraj (supra) :

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“ 100- As stated above, Article 16(4-B) lifts the 50% cap on carry-over vacancies (backlog vacancies). The ceiling limit of 50% on current vacancies continues to remain. In working out the carry-forward rule, two factors are required to be kept in mind, namely unfilled vacancies and the time factor. This position need to be explained. On one hand of the spectrum, we have unfilled vacancies; on the other hand, we have a time spread over a number of years over which unfilled vacancies are sought to be carried over. These two are alternating factors and, therefore, if the ceiling limit on the carry over of unfilled vacancies is

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removed, the other alternative time factor comes in and in that event, the time-scale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the time-scale is not kept then posts will continue to remain vacant for years, which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the time-cap depending upon the fact situation. What is stated hereinabove is borne out by the service rules in some of the States where the carryover rule does not extend beyond three years.”

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Mr. Bhowmik, learned counsel has therefore asserted that the time cap can not be extended beyond 3 years in the post which are supposed to be filled-up by the reserved category candidates but for non-availability of the reserved category candidates those could not be filled up. After that those time cap, be filled up by the candidates from the merit panel. Later on, the posts are to be adjusted. For that purpose, the reserved vacancies would be carried forward and whenever the suitable candidates from the reserved category are available, then would be accommodated against those vacancies.

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Mr. Bhowmik, learned counsel has fairly submitted that as per the Tripura Scheduled Caste & Scheduled Tribe Reservation Rules 1992, when a reserved post cannot be filled up by a reserved category candidate, then exchange method is to be applied and if the reserved vacancies cannot be filled up those are to be carried forward. These unfilled posts are carried forward according to Mr. Bhowmik, learned counsel appearing for the petitioner, for three recruitment years and as such, it is clear that in the present case even after applying the exchange method, the notified vacancies could not be filled up. Thus, Rule 8 (8) (a) of the said rules would come into operation.

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For purpose of reference the said Rule 8 (8) (a) is introduced hereunder:

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“ If it is found that the required number of Scheduled Castes candidates or Scheduled Tribe candidates for filling up reserved [vacant posts] are not available the appointing authority may initiate a proposal for filling up the reserved vacant posts by exchange method, i.e. for filling up the vacant posts reserved for Scheduled Tribe candidates, by available Scheduled Caste candidates or for filling up the vacant posts reserved for Scheduled Caste candidates, by available Scheduled Tribe candidates. He shall send the proposal to the [ Department of Welfare of Scheduled Castes, Other Backward Classes and Minorities] and to Tribal Welfare Department for their concurrence. When concurrence is received the appointing authority will make appointment subject to the condition that the [vacant posts] will be carried forward”

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[Emphasis added]

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If it is found that a required number of Schedule Caste candidates or Schedule Tribe candidates for filling up the reserved (vacant) posts are not available, the appointing authority may initiate a proposal for filling up the reserved vacant post by exchange method i.e. for filling up the vacant post reserved for Schedule Tribe candidates by available Schedule Caste candidates or filling up the vacant post reserved for Schedule Caste candidates by available Schedule Tribes candidates. The appointing authority shall send the proposal to the Department for Welfare of Schedule Caste and other Backward Classes and Minority and to the Tribal Welfare Department for their concurrence. When the concurrence is received, the appointing authority will make the appointment subject to condition that the vacant post will be notionally carried forward).

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Rule 8 (8) (b) further provides that:

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“If candidates belonging to Scheduled Castes or Scheduled Tribes is not available by exchange method, then the [vacant post] may be filled up by deputation/transfer according to concerned Recruitment Rules.

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[ Provided that notwithstanding anything contained in any other rules a reserved [vacant post] may be filled up by deputation /reserved category of officers/employees holding analogous posts of identical scale of pay and in case of non-availability of officers/employees holding analogous posts, by deputation of reserved category of officers/employees holding lower posts equivalent to the feeder posts.]

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It has been further provided by rule (8) (c) as under:

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“ If the required number of candidates are not available even after further attempts within a recruitment year the reserved [vacant post] shall be carried forward to the next recruitment year ”

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Mr. T.D. Majumder, learned Government Advocate appearing for the respondents No.1 & 2 has submitted that the petitioner does not have any right to be considered against the vacancies earmarked for the Schedule Tribe Candidates unless those posts are dis-reserved following the prescription as provided under rule 8 of Tripura Scheduled Castes & Scheduled Tribes Reservation Rules, 1992, hence this writ petition is misconceived and liable to be dismissed.

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Mr. P. Dutta, learned counsel appearing for the respondents No.3 & 4 has clearly submitted that the respondents No.3 & 4 does not have any role in de-reserving the reserved category post. It is the appointing authority which would, having due concurrence from the Departments as provided under the statute, get post de-reserved.

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WP(C) NO.1053 OF 2017

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In reply, Mr. A. Bhowmik, learned counsel has referred to a decision of this court in Jayanta Chakraborty & Ors. Vs. State of Tripura & Ors . reported in ( 2015) 1 TLR 864 .

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In Jayanta Chakraborty (supra) this Court in para 104 of the said judgment had occasion to observe as under:

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“ In Tripura, there is no time cap. This again shows that the State of Tripura did not take into consideration Nagaraj's Judgment and there is no application of mind after this judgment was delivered. We are aware that the State is the best judge of what should be the time cap. There can be a different time cap for different categories of posts. If posts of Peons remain vacant for years, that may not affect efficiency of administration but if posts of specialists in hospitals, Engineers , Professors, Teachers are kept vacant for years on and, this will not only affect the efficiency of the administration but it will also affect the health of the people and violate the human rights of the citizen in as far as they shall be denied of their right to live a proper and adequate life where their health and educational reliefs are taken care of. “

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Thereafter, it was directed that the State shall take

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appropriate steps in respect of the law as laid down by the M Nagaraj (supra) . Since the judgment of Jayanta Chakraborty (supra) has been challenged by the state before the Apex Court this court cannot observe any further regarding the State action. However, it appears from the provisions of Rule (8) as reproduced above that when after the adequate exercise for having the suitable reserved category candidates for filling up the vacancies earmarked for them such candidates are not found the appointing authorities have been given liberty or option, having after due consultation with the designated authorities, to dereserve the post subject to conditions as provided therein.

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WP(C) NO.1053 OF 2017

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In view of this provision, this Court is persuaded to observe that the competent authority, the respondents No.1 & 2 shall take an exercise to de-reserve the post which could not be filled up for such a long time. For this purpose adequate information be gathered and processed and if it is found that there is no possibility within in a short frame of time for filling up of those posts by the reserved category candidates, they shall dereseve those posts for maintaining efficiency of the administration. Such exercise shall be completed within a period of 4 months from the date when a copy of this judgment and order shall be submitted to the respondent No.2.

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If till then the life of the panel of the suitable candidates as prepared by the respondents No.3 & 4 survives, the case of the petitioner may be considered for appointment, if he comes against the deserved vacancies in terms of the merit panel.

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