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2002 DIGILAW 189 (GAU)

Utpal Bora v. Union of India and Ors.

2002-05-06

I.A.ANSARI, R.S.MONGIA

body2002
R.S. MONGIA, CJ.— This judgment and order of ours will dispose of the Writ Appeal No. 395/98 as well as Writ Appeal No. 108/99 arising out of the judgment and order of the learned Single Judge dated 15.11.98 passed in Civil Rule No. 946/95. 2. Briefly stated, the facts giving rise to both the appeals are that the appellant Sri Utpal Bora in Writ Appeal No. 395/98 had applied for the post of Company Commander to the Director General of Security, SSB, New Delhi in response to an advertisement. As the facts emerges now, the appellant Sri Bora could not make the grade for the post of Company Commander. However, on behalf of the Director General of Security, SSB the Assistant Director wrote to the appellant on 15.02.93 for giving his willingness for consideration for the post of Circle Organiser, SSB. The letter reads as under "Subject: Willingness for the post of Circle Organiser in SSB. Reference your application and subsequent interview for the post of Company Commander in SSB. 2. Though you had appeared in test and interview for the post of Coy. Commander, which is a Group-A (Gazetted) post carrying the pay scale of Rs.2200-4000/-, but you have not been able to make the required standard for the post of Coy. Commander for which you have not been placed in the select panel. You may, however, be considered for the post of Circle Organiser purely on a provisional basis subject to satisfaction of certain conditions, in i SSB which is a Group-A (Gazetted) post in the scale of Rs.2000-3700/-, subject to your written consent and after observance of prescribed formalities in accordance with the rules. 3. Please intimate in writing whether you are willing to be considered for the post of Circle Organiser in the pay scale of Rs.2000-3700/-. Your willingness must reach this office on or before 17.03.93, failing which your name shall be deleted from the consideration for the post of Circle Organiser. 4. Please note that submission of consent will not confer any right of appointment. 5. Please acknowledge receipt of this Memo.” 3. It is stated that similar letters were issued to those applicants who could not make the grade for the post of Company Commander, but on their performance in the interview etc. they could be considered in accordance with the rules for the post of Circle Organiser. 5. Please acknowledge receipt of this Memo.” 3. It is stated that similar letters were issued to those applicants who could not make the grade for the post of Company Commander, but on their performance in the interview etc. they could be considered in accordance with the rules for the post of Circle Organiser. The appellant gave his consent by communication dated 25.02.93 for being considered for appointment as Circle Organiser. A list of such candidates was prepared who had given their consent and the appellant's name for the post of Circle Organiser was placed at Serial No. 19. The'appellant Shri Bora filed the aforesaid Civil -Rule No. 946/95 in this Court claiming that in fact he had been selected for the post of Commander and had been placed at Serial No. 19 in the select list for the post of Company Commander, but that list was lateron changed omitting his name from the select list and, therefore, the respondents in the writ petition be directed to appoint him as Company Commander and in any case as Circle Organiser in view of the facts already mentioned above. The case of the respondents in the writ petition was that in fact the writ petitioner Sri Bora (now appellant) had never been selected and placed on the select list of Company Commanders and it was under the aforesaid circumstances that the appellant had been kept at Serial No. 19 for consideration for the post of Circle Organiser. However, that was subject to the approval of the higher authorities that the persons who had appeared in the interview etc. for the post of Company Commander may be considered for the post of Circle Organiser. However, this suggestion of the authorities was turned down by the higher authorities and it was stated that for every post there are approved recruitment rules and without obtaining sanction from the Government Sri Bora was asked to convey his willingness for the post of Circle Organiser and it was incorrect to make appointments to the post of Circle Organiser from candidates who had not appeared in the prescribed selection test for the post. The highest authority i.e. the Joint Director agreed with this on 17.07.93. The highest authority i.e. the Joint Director agreed with this on 17.07.93. However, to various letters/representations made by Sri Borah, the Commandant in the office of the Directorate of Security, SSB wrote to the appellant Bora on 17.1.94 that his case was under submission to the higher authorities for further consideration. It seems that when this letter was written, the Commandant was not in the know of the decision of the higher authorities not to make any appointment as Circle Organiser out of those candidates who had not made the grade for the post of Company Commander. However, there is nothing on the record to show that the appellant was ever intimated that his case cpuld not be considered for the post of Circle Organiser in view of the decision of the higher authorities. 4. The learned Single Judge held that in fact the appellant had never been selected for the post of Company Gommander and merely seeking his consent for consideration for the post of Circle Organiser cannot give him any right to claim that post. This was specifically mentioned in Para-4 of the letter dated 15.02.1993 asking for giving consent. We agree with the findings of the learned Single Judge. We have also been the original record as the same had been sent for. We find that the appellant was never selected for the post of Company Commander and it was only suggested that such person may be offered the post of Circle Organiser. However, the same was subject to approval of the higher authorities which did not come. The learned Single Judge was right in observing that mere seeking consent cannot confer any right on the appellant to be considered for appointment to the post of Circle Organiser. Accordingly, the Writ Appeal No. 395/98 stands dismissed. 5. However, the same was subject to approval of the higher authorities which did not come. The learned Single Judge was right in observing that mere seeking consent cannot confer any right on the appellant to be considered for appointment to the post of Circle Organiser. Accordingly, the Writ Appeal No. 395/98 stands dismissed. 5. While dismissing the writ petition of Shri Bora the learned Single Judge, however, observed that silence on the part of the respondents in the writ petition in not intimating the appellant (writ petitioner Shri Bora that his case could not be considered for the post of Circle Organiser in view of the decision of the higher authorities, the petitioner was unnecessarily compelled to file a writ petition and, therefore, the learned Single Judge observed as under - “Despite the fact that this Court is not in a position to help the petitioner, inaction on the part of the respondent authorities in not. informing the petitioner that he is not being given the appointment deserves to be condemned by the Court. It has nowhere been averred in the counter that the petitioner at any stage was sent any communication that he was not being considered for appointment of a Circle Organiser for certain reasons. A person who had applied for appointment and a person from whom consent was obtained did have the reasonable expectation for appointment and in case he was not to be given appointment he should have been informed well in time. A simple intimation would have saved the petitioner of his bothering about the post and taken any employment he liked. The intimation would have saved him from coming to the Court. The petitioner has been dragged towards filing the writ petition on account of silence on the part of the respondent authorities. By now the petitioner may have become over aged for employment with the Central, State Government and statutory Corporation. In view thereof this Court on equitable considerations observes that wherever the petitioner applies henceforth such authority would give him condonation of five years in age. In addition, the authorities would compensate the petitioner to the tune of Rs.15,000/- (Rupees fifteen thousand) only being the cost of litigation and other expenses which would be paid by the respondent No. 2, Director General of Security, by way of bank draft within 3 months." 6. In addition, the authorities would compensate the petitioner to the tune of Rs.15,000/- (Rupees fifteen thousand) only being the cost of litigation and other expenses which would be paid by the respondent No. 2, Director General of Security, by way of bank draft within 3 months." 6. It is against this part of the judgment that the Writ Appeal No. 108/99 has been filed by the Union of India. So far as the first part is concerned, that Shri Borah may be given concession of relaxation of 5 years in age as and when he applies henceforth. We are of the view that such concession could not have been given by the learned Single Judge. We, however, construe the same that if he had applied for the post of Company Commander/ Circle Organiser he may be given concession of relaxation of age. Sri Borah is already 34 years by now. So far the post has not been advertised. Even if the concession is to be given for 5 years relaxation of age, he would still be over aged being more than 25 years. So, we need not go any further in that regard. So far as compensating Sri Borah is concerned, we are of the view that the compensation/costs are on the higher side. We reduce the same to Rs.5,000/-. The Writ Appeal No. 108/99 stands allowed to the aforesaid extent.