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2001 DIGILAW 124 (ORI)

Collector, Puri v. Kamala Nayak

2001-03-22

P.K.MISRA, R.K.PATRA

body2001
JUDGMENT CH. P. K. MISRA, J. — In this batch of writ petitions, chal¬lenge is to the validity and legality of the order dated 03.12.1997 passed by the Orissa Administrative Tribunal, in Original Application No. 651 of 1997. 2. Facts in brief are as follows : A recruitment examination for the post of Junior Clerk in the undivided district of Puri was held in the year 1989-90 and a merit list was drawn up on 26.02.1990. On the basis of the merit list so drawn up, the Collector, Puri went on sponsoring names for appointment in different offices as per their requirement. When the matter stood thus, the Orissa Ministerial Services (Method of Recruitment for the Post of Junior Clerk in the District Offices) Rules, 1985 (hereinafter referred to as "the Rules" were amended prescribing therein that the period of validity of merit lists drawn up for appointment of ministerial staff of a particu¬lar recruitment year would be one year from the date of publication of the same or till drawal of the next year’s list, whichever is earlier. This amendment came into force with effect from 24.04.1991 i.e., from the date of publication of the same in the official Gazette. On receipt of the Notification the Collector, Puri, took steps on 06.06.1991 to make the merit list published on 26.02.1990 inoperative. It is pertinent to mention here that by the time the list was made inoperative on the basis of the aforesaid amendment, it was not completely exhausted. Prior to this, some of the successful candidates in the merit list published on 26.02.1990 had approached the Orissa Administra¬tive Tribunal in Original Application No. 1340 of 1990 with the allegation that they were not being given appointment and the authorities were attempting to fill up the existing vacancies by making ad hoc appointment and by allowing the ad hoc appointees to continue. A Division Bench of the Tribunal while disposing of the said application by judgment dated 06.01.1992 directed as follows : “In the circumstances, we are inclined to dispose of this application by giving direction that the existing vacancies in the cadre of Junior Clerks in the district of Puri as on today requiring filling up, be filled up by giving appointment to persons whose names find place in the select list/merit list of successful candidates of the Recruitment Examination, 1989-90 (Annexure-2), in order of merit.” 3. After the Collector took steps to make the merit list published on 26.02.1990 inoperative, some of the selected candi¬dates filed two applications bearing numbers O. A. 35 and 188 of 1991 and a Division Bench of the Tribunal disposed of those applications by judgment dated 18.03.1993 with the following directions : ....... We may at the outset say that such a decision of the Collector is illegal and unsustainable in law. The amendment which came in the year 1991 is prospective in nature. It cannot have retrospective effect. Therefore, the selection made in the year 1989 or 1990 cannot be altered or changed in view of the amendment of the year 1991. If according to the admission of the Opposite Parties there are 23 vacancies of Junior Clerks existing in the office of the Collector, Puri and other subordinate offices therefore irrespective of the amendment made in the year 1992 with regard to the select list, the Collec¬tor, Puri is directed to give appointment to these petitioners in the vacant existing posts without any further delay. We further direct that our judgment be implemented within 30 days from the date of its receipt. 4. After the aforesaid two judgments of the Tribunal, a batch of Original Applications i.e., O. A. Nos. 864/93, 1226/93, 1526/93, 1819/93, 2030/93, 2031/93 and 2039/93, were filed before it. In view of the gravity of the matter, all these cases along with the three disposed of cases were referred to a Larger Bench of the Tribunal, which disposed of the cases by judgment dated 15.11.1993. In paragraph-8 of the judgment, the following direc¬tion was issued : "All the applicants before us in these 10 Original Applica¬tions shall be given appointment to the posts of Junior Clerk in the district Office and other subordinate Offices in Puri Dis¬trict (including present Khurda and Nayagarh districts) against vacancies existing till the date of this order. Such appointments shall be given to the applicants according to their position in order of merit in the select list of the year 1989-90 and after giving them appointment against such vacancies, the merit list of the year 1989-90 shall cease to operate. There shall be no ap¬pointment of persons outside the merit list." 5. Such appointments shall be given to the applicants according to their position in order of merit in the select list of the year 1989-90 and after giving them appointment against such vacancies, the merit list of the year 1989-90 shall cease to operate. There shall be no ap¬pointment of persons outside the merit list." 5. After the above order of the Tribunal, the authorities had to face a lot of problems inasmuch as cases of some other candidates, who stood over and above the applicants in the merit list but did not approach the Tribunal were to be ignored. There¬fore, a petition was filed before the Tribunal for clarification of the order dated 15.11.1993. However, the Tribunal by its order dated 18.07.1994 categorically issued direction that their judg¬ment dated 15.11.1993 was confined to the applicants before them and not for others who did not approach the Tribunal claiming relief, which the applicant claimed. After receipt of the clarifi¬cation, the authorities went on sponsoring names on the basis of requisitions received. Thus, benefit of the Larger Bench judgment was made available to some of the applicants before the Tribunal. 6. While the matter stood thus, some other successful candi¬dates, whose cases were not considered because they had not approached the Tribunal, came before the Tribunal by filing several Original Applications. Such applications were taken up together by the Chairman of the Tribunal sitting single and were disposed of by judgment dated 03.12.1997. Paragraph-9 of the said judgment reads as under : “A large number of candidates have been left out. They claim to have right to be appointed. In such circumstances, I call upon the Collector to find out within a period of four months from the date of receipt of copy of this order the exact position. For expediting the matter, I give liberty to applicants and other candidates left out to file representations before Collector to facilitate the Collector to determine the vacancy position, the less meritorious candidates recommended and more meritorious candidates left out. He may issue public advertisement calling for claim to be appointed and exclude those who do not put forward their claim for getting appointment within the time to be stipulated by the Collector.” 7. Being aggrieved by the aforesaid order of the Chairman of the Tribunal, the present writ petitions have been filed. 8. He may issue public advertisement calling for claim to be appointed and exclude those who do not put forward their claim for getting appointment within the time to be stipulated by the Collector.” 7. Being aggrieved by the aforesaid order of the Chairman of the Tribunal, the present writ petitions have been filed. 8. The question before us is whether there is any contradic¬tion between the judgment dated 15.11.1993 rendered by the Full Bench of the Tribunal and that dated 03.12.1997 of the Chairman of the Tribunal while sitting single, and, if so, whether the Chairman was justified in giving a verdict in the guise of clari¬fication contrary to the judgment of the Full Bench. In other words, whether the judgment of the Chairman does not amount to review of the Full Bench decision, which is not permissible in law. 9. In this connection, learned counsel for the petitioners have brought to our notice the decision of the apex Court in Union of the India v. Raghubir Singh, AIR 1989 SC 1933 , wherein after taking note of a large number of its earlier decisions, it was held as follows : (paragraph-28 at p. 1945) : “It cannot be doubted that in order to promote consistency and certainty in the law laid down by a superior Court, the ideal condition would be that the entire Court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so. But having regard to the volume of work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and con¬venience that the Court should sit in Divisions, each Division being constituted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other consid¬erations which the Chief Justice, in whom such authority devolves by convention, may find most appropriate. It is in order to guard against the possibility of inconsistent decisions on a points of law by different Benches that the rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges.” 10. Learned counsel for the petitioners also brought to our notice the decision of the apex Court in K. Ajit Babu v. Union of India, AIR 1997 SC 3277 , wherein it has been held : "Consistency, certainty and uniformity, in the field of judicial decisions are considered to be the benefits arising out of the Doctrine of Precedent. The precedent sets a pattern upon which a future conduct may be based. One of the basic principles of administration of justice is that the cases should be decided alike. Thus the doctrine of precedent is applicable to the Cen¬tral Administrative Tribunal also. Whenever an application under S. 19 of the Act is filed and the question involved in the said application stands concluded by some earlier decision of the Tribunal, the Tribunal necessarily has to take into account the judgment rendered in the earlier case as a precedent and decide the application accordingly. The Tribunal may either agree with the view taken in the earlier judgment or it may dissent. If it dissents, then the matter can be referred to a larger Bench/Full Bench and place the matter before the Chairman for constituting a larger Bench so that there may be no conflict upon the two Bench¬es. The Larger Bench, then has to consider the correctness of earlier decision in disposing of the later application. The larger Bench can overrule the view taken in the earlier judgment and declare the law which would be binding on all the Benches." 11. A bare reading of the order of the Full Bench of the Tribunal would clearly indicate that it is applicable to the applicants before the Tribunal as per their inter se seniority in the merit list for the purpose of filling up the existing vacan¬cies available till the date of judgment, i.e., 15.11.1993. A bare reading of the order of the Full Bench of the Tribunal would clearly indicate that it is applicable to the applicants before the Tribunal as per their inter se seniority in the merit list for the purpose of filling up the existing vacan¬cies available till the date of judgment, i.e., 15.11.1993. The Chairman has, however, in the guise of clarification has allowed other persons who were not applicants before the Full Bench of the Tribunal to be considered as per their position in the list prepared and published on 26.02.1990. Such order of the Chairman, so far as it relates to consideration of candidates other than those who were before the Full Bench cannot be sustained. It might be that while passing the order, the Full Bench kept in view the change of the Rules and the lapse of time. To give a finality to the matter and to put an end to further litigations, such an order has been passed by the Full Bench. It is pertinent to note here that we are not required to examine whether the order of Full Bench of the Tribunal is correct or not. But, so long as it holds the field, any decision contrary to it by a Bench consist¬ing of lesser number of Members cannot stand. 12. For the aforesaid reasons, the decision dated 03.12.1997 of the Chairman of the Orissa Administrative Tribunal is quashed as it contradicts the direction contained in the decision of the Full Bench of the said Tribunal. The writ petitions are disposed of accordingly. R. K. PATRA, J. I agree. Petitions disposed of.