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2002 DIGILAW 464 (ORI)

MAHESH KUMAR DAS v. UNION OF INDIA (UOI)

2002-07-29

PRADIP MOHANTY, R.K.PATRA

body2002
JUDGMENT : R.K. Patra, J. - The petitioner along with seven Ors. filed O.A. No. 482 of 1995 before the Central Administrative Tribunal. Cuttack (hereinafter referred to as the Tribunal') praying for a direction to the opposite parties to give them appointment as unskilled labourers. By the impugned order dated 16.11.1999 at Annexure-1. The Tribunal declined to grant relief to them on the ground that the application has no merit. The validity of the said order is the subject matter of challenge in this writ petition. 2. The case of the petitioners is that pursuant to the direction given by the Headquarters. Eastern Naval Command. Vishakapatnam the Deputy General Manager (Opp. party No. 4) requisitioned District Employment Exchange Officer. Koraput to sponsor names of eligible candidates for test/interview to fill up the posts of unskilled labourers. In response to the requisition, the Employment Exchange authority sponsored names of 919 candidates including the petitioners. Out of 919, only 502 candidates appeared for the recruitment test/interview. A board consisting of VtS. Parihar. D.G.M. as President; D. Muni CTO (A&E) as Member (SC/ST) and Sugunana AASO as Member was constituted for selecting candidates. The test/interview was held from 17.10.1994 to 29.10.1994. Against 23 clear vacancies, the Selection Board selected 37 candidates, of which. 15 were of general category. 7 S.C. and O.B.C. each and 8 from S.T. category. The Board recommended names of 23 candidates including the petitioners for appointment and kept reserved 14 candidates. Although the Board recommended their names, no appointment order was issued. On the contrary, the Employment Exchange Officer was again moved to sponsor names for filling up the posts of unskilled labourers. In the above back-drop, the petitioners moved the Tribunal by filing the aforesaid case for a direction to the contesting opposite parties to give them appointment as unskilled labourers. The contesting opposite parties in their counter affidavit before the Tribunal took the stand that complaints were received at the command headquarters alleging that the Selection Board was not properly constituted and in course of recruitment several irregularities were committed. In the circumstances, the proceeding of the Selection Board was superseded and it was decided to hold fresh test with a fresh board. In the circumstances, the proceeding of the Selection Board was superseded and it was decided to hold fresh test with a fresh board. The Tribunal accepted the case of the opposite parties that the Selection Board was not properly constituted, inasmuch as, no member from minority community was associated which was a mandatory requirement and the SC/ST member also did not associate himself in the recruitment process and confined his participation only to the test/interview of S.C. and S.T. candidates. According to the Tribunal, these are serious irregularities and. as such the selection made by such board cannot be given the approval of validity. On the basis of the said finding, as indicated, the Tribunal declined to grant any relief to the petitioners. 3. Shri Rath, learned Counsel for the petitioners, contended that no Government order of the circular with regard to constitution of the Selection Board was produced before the Tribunal in course of hearing nor any such order/circular was enclosed to the counter affidavit. Learned Counsel submitted that the selection was for appointment of unskilled labourers for which no academic excellence was necessary and. therefore absence of one member does not render the proceeding of the Board void. According to him there has been substantial compliance with regard to the constitution of the Selection Board and the Tribunal should not have invalidated the selection merely on surmises. In this connection he placed reliance on judgment of the Supreme Court in Ishwar Chandra Vs. Satyanarain Sinha and Others. He also criticised the procedure adopted by the Tribunal on the ground that it called for the records without notice to the petitioners and perused the same behind them. 4. Let us first consider the point regarding the grievance of the petitioners that the Tribunal formed opinion by perusing the records produced by the department without notice to them. In view of such grievances, we called for the records from the Tribunal by order dated 17.4.2002 which were duly produced. We have gone through the order-sheet of the connected case. Although there is no specific direction by the Tribunal calling upon the department to produce the records, they seem to have been produced on 28.10.1999. The order reads as follows: Heard Mr. G. Rath, learned Counsel for the Applicant and Mr. A.K. Bose, learned Senior Standing Counsel appearing for the Respondents and also perused the records. Although there is no specific direction by the Tribunal calling upon the department to produce the records, they seem to have been produced on 28.10.1999. The order reads as follows: Heard Mr. G. Rath, learned Counsel for the Applicant and Mr. A.K. Bose, learned Senior Standing Counsel appearing for the Respondents and also perused the records. Hearing in the matter is concluded and the matter is posted to 16.11.1999 for delivery of orders. From the aforesaid, it is apparent that the Standing Counsel of the department produced the records before the Tribunal in course of hearing and the counsel for the petitioners was aware of the same. It is. therefore but a case where the Tribunal perused the records without notice to the counsel for parties. Accordingly, we do not find any merit in the objection now raised on behalf of the petitioners. 5. The next point for consideration is with regard to the constitution of the Selection Board. In the counter filed by the department before the Tribunal, it was averred that as per the Government order contained in MOO 10 No. 24 (20)/90/ D-Appts. Dated 26.10.1990, a member from the minority community is to be invariably co-opted for filing of vacancies of-course copy of the said Government order was not enclosed to the counter affidavit. We accordingly by order dated 17.4.2002 called upon the learned Senior Standing Counsel to produce copy of the said Government order. In obedience to the said order, the learned Senior Standing Counsel has produced before us the said order. The relevant portion of the government order reads as follows: The matter has been reviewed and in partial modification of the above instruction, it has now been decided that wherever a Selection Committee/Board exists or has to be constituted for making recruitment to 10 or more vacancies in Group "C or Group O" posts/Services, it shall be mandatory to have one member belonging to SC/ST and one member belonging to Minority Community in such Committees/Boards Where. however the number of vacancies against which selection is to be made is less than 10, no effort should be spared in finding a Schedule Caste. Scheduled Tribes Officer and a Minority Community Officer for inclusion in such Committees/Board. There is no dispute that the recruitment of the petitioners was against Group 'C7' Group 'O' Posts/services. It was also against 23 clear vacancies. Scheduled Tribes Officer and a Minority Community Officer for inclusion in such Committees/Board. There is no dispute that the recruitment of the petitioners was against Group 'C7' Group 'O' Posts/services. It was also against 23 clear vacancies. The aforesaid Government circular mandatorily requires that the Selection Committee/Board in such situation should have one member belonging to the SC/ST community and one member belonging to Minority Community in it. It is, therefore, obligatory on the part of the concerned authority to have one member belonging to SC/ST and one member belonging to Minority Community in the Selection Board. Admittedly, the Selection Board which conducted the recruitment had no member belonging to Minority Community although it had one member belonging to SC/ST (D. Muni) the proceeding of the Board is at Annexure-3 enclosed by the petitioners to the writ petition. Strangely D. Mum had not put in his signature in the proceeding which indicates that the dissociated himself from it. As the Selection Board was not properly constituted as required by the aforesaid Government order and one of the members having not put his signature is the proceedings, we are inclined to hold that the recommendation made by the said Selection Board was not acceptable and the concerned authority rightly declined to act on it. The case of Ishwar Chandra Vs. Satyanarain Sinha and Others cited by Shri Rath is distinguishable in view of the fact that in that case there was no mandatory provision as to who should be included in the Select Committee. 6. For the reason aforesaid, we do not find any wrong in the approach made by the Tribunal in the matter. There is no merit in this writ petition which is accordingly dismissed. The records called for from the Tribunal be sent back forthwith. Pradip Mohanty, J. 7. I agree.