In a landmark judgment the High Court of Tripura stopped the Tripura government’s practice of carrying forward the ST SC backlog in recruitment process continuously for unspecified period.
The Division Bench of the Justice Arindam Lodh and Justice S G Chottopadhyaya held that the practice – carrying forward backlog of SC ST category candidates –beyond the next recruitment year is completely illegal and against the related Act’s letters and spirit. The High Court said, the SC ST backlog can be carried forward if recruitments are done more than once in a specific recruitment year. In case even still the backlog remains, then it can be carried forward ‘up to next recruitment year’ –but not beyond that.
The 33 pages judgment came following two intra-court appeals along with a writ petition that came before the Division Bench for disposal by a common judgment. The appeals related to 73 Pharmacists’ (Allopathy) posts and 230 Teachers’ posts.
Most importantly, though the Division Bench of Justice Lodh and Justice Chottopadhyaya held that the recruitments done with unfettered ‘carry forward’ system that continued for years after years illegally- the appointments already made shall not ‘disturbed’. The High Court also observed that there was no ‘malpractice’ in the selection process of the cases that came before them.
The Case 1: Director of Health Services, Government of Tripura had issued a notification dated 30.10.2013 for holding walk-in-interview for filling up of various posts under the Health and Family Welfare Department. Serial No.5 of the notification was concerned with the vacancies for the post of Pharmacist (Allopathy). There were 73 posts, out of which, 7 posts were reserved for SC category candidates, 53 posts were reserved for ST category candidates and 13 posts were reserved for UR category
candidates.
The petitioners primarily had raised twin constitutional issues, viz. (1) reservation in excess of ceiling limit of 50% [60 out of 73 posts] and (2) constitutional validity of Revised Employment Policy, 2012.
Single Bench of Justice S Talapatra had heard the case and dismissed the writ petitions on the ground of estoppel. The case came before the Division Bench again for hearing.
The Case 2: As regards the writ petition the petitioner prayed for quashing and cancelling the notification dated 15.07.2022, issued by the Teachers Recruitment Board, Tripura (TRBT) with a direction upon the respondents to issue fresh notification for filling up 230 posts of Graduate Teachers (Class-IX-X) through “Selection Test for Graduate Teacher (STGT)-2022”.
The main grievance of the petitioner was the recruitment process for filling up 230 numbers of posts of Post Graduate Teachers (PGT) as out of 230 posts, 201 nos. of posts had been kept reserved for Scheduled Castes and Scheduled Tribes which apparently is in excess of 50%.
It was during the hearing that the High Court found the practice of Backlog Carry forward – for which the SC ST reservation time and again exceeded hugely beyond 50 per cent was illegal and in contradiction to the related the SC ST Reservation Act.
The High Court pointed out that as per the 81st Amendment to the Constitution- 2000 the Clause 4-B was inserted in the Article 16 of the Constitution that enabled the state governments to legislate law and make provision as regards to filing up of the backlog vacancies in any succeeding ‘year’ or ‘years’ by way of applying carry forward rule which were kept out and excluded from overall ceiling limit of 50 per cent of reservation.
Accordingly the Tripura government brought in Second Amendment Rules 2007 and it ( Tripura SC ST reservation Act) in Clause C of Sub Rule 8 of Rule 8 of Rules 1992 said : If the required number of candidates are not available even after further attempt within a recruitment year the reserved [vacant posts] shall be carried forward to the next recruitment year.” ( Ed : Not yearS)
The High Court observed : The State Government had consciously taken a decision that the unfilled vacancies if not filled up within a recruitment year, the reserved [vacant posts] shall be carried forward to the next recruitment year. In other words, the law-makers wanted to limit carry forward rule to fill up the reserved [vacant posts] i.e. backlog vacancies up to the next recruitment year only and not in any further subsequent/succeeding years.
“It is clarified that the expression “if the required vacancies of candidates are not available even after further attempt within a recruitment year” would mean and connote that the authorities concerned can exercise the process of recruitment indicating the unfilled backlog vacancies for a number of times within the same year i.e. initial/first recruitment year”.
The Division Bench then added : “In the opinion of this court, ..the State law-makers had clear intention to apply carry forward rule for clearing the “backlog vacancies” up to the next recruitment year, that is, after the initial recruitment year”.
The High Court then emphasized : “We re-iterate that the State legislature has thought it fair and just to apply the carry forward rule only up to the next recruitment year and not years any further or subsequent year”.
“It is evident … that ‘backlog vacancies’ to fill up the post of reserved category candidates are being carried forward for a number of recruitment years after introduction of SC & ST Act and the Rules,1992. According to us, it is inconsistent to and in contravention to Clause (c) of sub-rule 8 of Rule 8 of amended Rules, 2007. Therefore, this is a continuous breach of a statutory provision which escaped the notice of the executives who have the primary duty to strictly adhere to the legislative decision encrypted in the statute, and therefore, must be stopped here to prevent further breach of legislative intent and object of the legislatures to protect the interest of public in general for whose interest particular legislation was introduced. The State-respondents have committed a serious error in law to identify
and keep 60 seats for reserved category candidates out of total 73 posts for filling up the vacant posts of Pharmacist (Allopathy), which is the subject matter in both the appeals; so also the subject matter of the writ petition where out of 230 posts of Graduate Teachers, 201 numbers of posts were kept reserved for SC and ST candidates”.
“We may in the context of the case, unhesitatingly hold that reservation in excess of 50% ceiling limit is inconsistent and contrary to law as contemplated under Sub-Rule 8(c) of Rule 8 of Rules, 1992”.
The High Court also made an important observation : It is not unknown to this court that there is dearth of competent and adequate Pharmacists (Allopathy) in the State of Tripura. If the posts are allowed to remain vacant for non-availability of eligible reserved category candidates for the years to come, then, the health services, which the Government is necessarily to provide to its people, will badly be affected.”
Similarly, the court referred to the reports of shortage of adequate number of teachers in the schools in the state.
“So if the vacancies in the posts of teachers are not filled up then the education system of the state will also be adversely affected when Right to Education has been made Fundamental right”.
Justice Lodh and Justice Chottopadhyaya then made their observation explicit : “…The ceiling limit of 50% cannot be breached in any manner whatsoever, in the succeeding recruitment years beyond the second year of recruitment followed by the first recruitment year.”.
“In our considered view, the mistakes already committed by the State executives in filling up the posts of Graduate Teachers in the State as afore-stated is unrepairable; however, such illegalities committed by the respondents-authorities during the previous years cannot be permitted to perpetuate by continuous mistake”.
What , however, came as relief for the already appointed in this ‘illegal process of backlog carry forward’ and thus exceeding the 50 percent reservation benchmark that the Justice Lodh and Justice Chottopadhyaya did not grind any axe over them.
The Division Bench clearly said : The appointments already made from this distinct group have not been disturbed by this court.
“More so”, the Bench added, “ no malpractice is found to be committed in the selection process”.
…“It is made clear that the appointments already made in the posts of Pharmacist (Allopathy) by applying the carry forward rule under notification dated 30.10.2013 shall not be disturbed.
“It is further made clear that if any vacancies under the same notification still exists and left vacant those shall be filled up by general category candidates according to their merits and in that case, the official respondents shall prepare and publish the merit list of general category candidates.
The official respondents ( state govt) shall not apply the carry forward rule in any of the future recruitment process for filling up the vacant posts of Pharmacist (Allopathy).
On the teachers’ recruitment it said : The employment notification dated 15.07.2022, issued by the Member Secretary, Teachers Recruitment Board, Tripura (TRBT), for filling up the posts of ‘Graduate Teacher’ for the Classes-IX-X, wherein, 201 posts have been kept reserved out of 230 posts, is also interfered with to the extent that the number of vacancies carried forward shall not be given effect to.The selection of reserved category candidates must be limited to 50% for filling up the total number of posts of ‘Graduate Teacher’ under the notification dated 15.07.2022. The respondents shall prepare the select list following the said ceiling limit of 50% rule for reservation.
The official respondents shall not apply the carry forward rule in any of the future recruitment process for filling up the vacant posts of ‘Graduate Teacher’.
(Courtesy Tripura Times)
