(1.)The petitioners have prayed for the following reliefs:
"(i) Issue Notice upon the Respondents;
(ii) Call for Records;
(iii) Issue rule calling upon the Respondents to show cause as to why the petitioners shall not be granted regular pay scale attached to the post of STPGT and STGT pursuant to the appointment of the Petitioners in furtherance of Advt. dated 27.05.2017 bearing No.02/2017 w.e.f. the date of appointment of the Petitioners in their respective posts and further be pleased to direct the Respondent to release the arrears of Financial benefits to the petitioners within a time bound frame.
Issue rule calling upon the Respondents to show cause as to why the earlier service of the Petitioner pursuant to the Advt. dated 23.09.2009 shall not be counted for all purposes including seniority, pension, Pay Protection etc.
Issue rule calling upon the Respondents to show cause as to why the memorandum bearing No.F.10(2)-FIN(G)/05/Part-I dated 16.10.2007 issued by the Finance Department, Govt. of Tripura shall not be set aside and quashed being violative of Article 14 and 16 of the Constitution of India.
(iv) And after bearing the parties be pleased to make the rule absolute.
Pass any other order/orders as deemed fit and proper."
(2.)The brief background leading to the filing of the instant writ petition is as under:
For recruitment to the post of Teachers, way back in the
year 2002, the State Government took certain steps. Pursuant
thereto, letters of appointment were issued to several candidates
who not only accepted the same but also started discharging their
duties at their respective places of posting. Such process which
commenced in the year 2002 and continued till the year 2006,
was subject matter of challenge before this Court, inter alia on the
ground of non-compliance of settled principles of law.
(3.)Vide judgment dated 7th May, 2014, as reported in (2014) 2 TLR 731 titled as Tanmoy Nath and Ors. Vs. State
of Tripura and Ors., while quashing the said selection process, in
its entirety, so undertaken by the State, this Court issued several
directions which read as under :
" ******* ******* *******
123. 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.
124. It is not for this Court to frame guidelines but if the State does not frame any guidelines, then the State shall follow the following directions while making selections. If the State frames its own guidelines, it must ensure that they are in tune with the law laid down by the Apex Court as discussed by us above and in light of the directions given hereinafter.
(i) Fresh applications shall be invited for all the posts;
(ii) Even those who have applied earlier will have to apply again though they may be given relaxation in age and no fees may be charged from them;
(iii) The State shall clearly set out the number of posts in each category of teachers;
(iv) In case of undergraduate teachers, the State if it is so advised may divide the posts sub-division wise so that the primary school teachers are local people as far as possible;
(v) In respect of graduate teachers, the State may divide the posts district wise;
(vi) In case of postgraduate teachers, there will be no zone wise division of posts;
(vii) In case the State decides to make division of posts region wise, as indicate hereinabove, then the candidates must be asked to apply only for one region of their choice. It should also be specified in the advertisements that once a candidate applies under any category then he shall not be permitted to change his category and the roll number should be allocated in such a fashion that the category and region of each candidate is clearly depicted in the roll number itself.
(viii) For each category of teachers, a written test preferably an objective (MCQ) test must be held;
(ix) This test should be conducted by an independent body like the Tripura Public Service Commission or the Tripura Central University;
(x) The test should be multiple choice question and the answer sheet should be checked through a computer keeping in view the large number of candidates involved;
(xi) At least 50% of the total marks shall be awarded on the basis of the performance in the written test, i.e. in case a candidate obtains 70 marks out of 100 in a written test, 35 marks out of 50 shall be awarded to him towards the total assessment;
(xii). In the case of Post Graduate Teachers another 20 marks shall be awarded for the marks received in the qualifying course, i.e. B.A./B.Sc./B.Com (Honours) or post- graduation, i.e. M.A./M.Sc./M.Com. Therefore, if a candidate has obtained 50% marks in the qualifying course, he would get 10 out of 20 under this head. A candidate, who has higher qualifications, for example he is an Hons. Graduate and has also done his post- graduation or has done his post-graduation in 2(two) subjects, then he may be awarded 5 more. Similarly 5 more marks shall be awarded to those candidates who have obtained Ph. D. or similar qualifications. Since consistency has an important role, 5 marks each i.e. 10 marks shall be awarded for the marks obtained in Madhyamik and Higher Secondary examination respectively. Therefore, if a candidate has 40% marks in Madhyamik he will get 2 out of 5 and if he has 60% marks in Higher Secondary he will get 3 marks. Out of the remaining 10 marks which shall be awarded at the time of interview 5 marks shall be earmarked for extra-curricular activities i.e. sports, music, drama or NCC etc. but the State must lay down clear-cut guidelines as to how these marks have to be allotted. Therefore, the interview board will have the liberty to award 5 marks on the basis of oral interview.
(xiii). In case of Graduate Teachers, 50% marks shall be allocated for the performance in the written test, 20% marks for the marks obtained in the qualifying course i.e. Graduation, 5 marks on the basis of marks obtained in Higher Secondary and 5 marks for the marks obtained in Madhyamik and 10 marks shall be awarded on the basis of percentage of marks for candidates when done post graduate. Similarly, Out of the remaining 10 marks which shall be awarded at the time of interview 5 marks shall be earmarked for extra-curricular activities i.e. sports, music, drama or NCC etc. and 5 for performance in interview.
(xiv). For Under Graduate Teachers 50% shall be allocated for performance in the written test, 10 marks for the marks obtained in Madhyamik, 10 marks for the marks obtained in Higher Secondary and 15 marks shall be awarded to those candidates who are qualified as per the NET guidelines i.e. they have passed TET or B. Ed or 2(two) years Diploma in Teaching. 5 Marks for higher qualifications. Out of the remaining 10 marks which shall be awarded at the time of interview 5 marks shall be earmarked for extra-curricular activities i.e. sports, music, drama or NCC etc. and 5 for performance in interview.
(xv). We may make it clear that 50% seats shall be filled in only on the basis of merit. In the State of Tripura the reservation is as follows:
Scheduled Tribe - 31%
Scheduled Caste - 17%
General Category - 52%
Therefore, if there are 1000 posts in a particular category of "žTeachers "Ÿ at least 165 Scheduled Tribe candidates should be selected on the basis of merit amongst Scheduled Tribes, 85 candidates belonging to Scheduled Castes be selected on the basis of merit drawn out amongst the Scheduled Caste category and 260 out of the unreserved/general category shall be appointed strictly on the basis of merit drawn out as above.
(xvi). The State must also ensure that in accordance with the Persons with Disability Act and the law laid down by the Apex Court in a number of cases including Union of India and Anr. Vs. National Federation of the Blind and Ors., [(2013)10 SCC 772] adequate numbers of posts are reserved for persons with disabilities.
(xvii). In case the States so desires, it may reserve a small percentage of posts for Ex- servicemen or wards of those who have died fighting for the Country or have been severely disabled. However, the reservation under this head shall be horizontal and not above 5%. The number of posts in this category should also be clearly defined.
(xviii). The State may, if it so desires, also out of this 50% give some weightage to persons who have been waiting for the appointment for a long time. Therefore, there can be additional 20 marks to be awarded for seniority i.e. 1 mark for each year of seniority subject to a maximum of 20 marks. Similarly, the State may also give some weightage to members of the needy families out of these 50% posts and may allot 10 marks for those persons who belonged to the needy category. Therefore, the remaining 50% of posts the marking may be out of 130 i.e. 20 marks for seniority and 10 marks for need.
(xix). Effectively, those selected only on the basis of the merit shall be graded out of a maximum of 100 marks but for those who are given benefit of seniority and/or belonging to a poor family the marking will be out of 130 marks. It is, however, made clear that the State at the time of framing of the policy shall also lay down clear-cut guidelines how the needy families are to be identified. (i) The identification must be done on clearly set out criteria i.e. to say the upper income limit should be clearly defined. (ii) It should be clearly stated that no member of the family should be in government/organized employment. (iii) It should be clearly stated that the land of the family should be below a certain area. We also make it clear that any certificate given to a person said to be needy can be challenged by the unsuccessful candidates if they feel that this certificate has been wrongly given.
125. 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 area 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.
126. We may make it clear that the benefit to the candidates on the ground of being needy shall not be granted on the basis of the BPL certificates since we have found that there are no guidelines for issuing the BPL certificates. Other guidelines can also be laid down so that the needy can be identified properly.
127. Since we have set aside the revised employment policy which applies to a large category of posts and not merely to teachers, we would like to make it clear that our judgment shall be prospective in nature and shall not affect the appointments already made unless the said appointments are already under challenge before the Court on the ground that the employment policy is illegal.
128. We are also of the considered view that in future the State should not wait for years on end to make the recruitments. In each year before 31st July the State shall identify the number of posts which shall fall vacant in every category of teachers on account of retirements, creation of new posts etc. in the next calendar year. To this 10 to 20% may be added as the posts for anticipated and unforeseen vacancies which may occur due to resignation or death of serving teachers. The test for these posts should be held every year and Select List should be prepared by 31st December of every year so that when the new academic year starts in January these teachers are selected and no school is without a teacher at any given time. While issuing this direction we are taking support from the judgment of the Apex Court in Malik Mazhar Sultan and Anr. Vs. U.P Public Service Commission and Ors., [2008 (17) SCC 703] wherein the Apex Court passed time bound directions for recruitment of civil judges. In our opinion, the requirement of adequate number of teachers is even more important than that of Judges and no post of teacher shall remain vacant. The "žSelect List "Ÿ shall be valid for a period of 1 or 2 years but before the validity of the "žSelect List "Ÿ comes to an end the State must ensure that fresh test is carried out and fresh selection is made.
............ (Emphasis supplied)."