Research › Search › Judgment

Orissa High Court · body

2006 DIGILAW 340 (ORI)

Goutam Ch. Das v. Union of India

2006-04-26

I.M.QUDDUSI, PRADIP MOHANTY

body2006
JUDGMENT I. M. QUDDUSI, J. : These two writ petitions have been filed against the judgment and order dated 23.4.1999 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.336 of 1998 which was filed by Khirod Kumar Panda-opposite party in O.J.C. No. 11808 of 1999. The Tribunal quashed the subsequent selection for appointment to the post of Extra Depart¬mental Sub-Post Master in which the petitioner in O.J.C. No.12811 of 1999, namely, Goutam Ch.Das was selected and directed that the process of earlier selection in which the above named opposite party (Khirod Kumar Panda) was a candidate for the post in ques¬tion should be completed taking into account the candidature of all 14 candidates who had applied for the same. 2. The brief facts of the case are that the father of Khirod Kumar Panda was working as Extra Departmental Sub-Post Master, Jignipur S.O. He died in harness on 8.7.1996 after putting in about 32 years of service. The son of the deceased Khiord Kumar Panda at the time of his death was a Graduate and his name was also registered in the Employment Exchange. He applied for compassionate appointment in place of his deceased father but the same was rejected by the Circle Relaxation Commit¬tee. Pending such consideration, the post of EDSPM, Jignipur S.O. remained vacant. After rejection of his application names were sponsored from the Employment Exchange vide letter dated 24.3.1997. In the said letter the Superintendent of Post Offices, Cuttack North Division, Cuttack had specifically mentioned other eligibility of the candidates including that the SC/ST candidates may be sponsored and the ST candidates would be given preference. It was also mentioned therein that there would be no interview and appointment would be made on selection. In the proforma of notification of vacancies for the Employment Exchange sent along with the said letter it was mentioned against Column No.9 that the Scheduled Caste/Scheduled Tribe/Physically Handicapped per¬sons may be sponsored and ST candidates would be given prefer¬ence. The same is reproduced as under : “9. Whether there is any obligation or arrangement for giving preference to any category of persons in filling of vacan¬cies : (i) Scheduled Caste : May be sponsored ST (ii) Scheduled Tribe : candidates will be (iii) Physically Handicapped: given preference.” The Employment Exchange Officer sponsored the names of 40 candidates but the name of Khirod Kumar Panda was not sponsored. 3. 3. Being aggrieved, he filed an Original Application bearing O.A. No. 336 of 1998 before the Central Administrative Tribunal, Cuttack Bench, Cuttack which was disposed of with a direction to the Superintendent of Post Offices,Cuttack North Division, to consider his name along with other candidates. Therefore, Khirod Kumar Panda was also allowed to submit his application along with other 40 candidates sponsored by the Employment Exchange with required documents so as to reach on or before 2.6.1997. In response to the same,only 14 candidates including Khirod Kumar Panda submitted their application but it was found that there was no applicant belonging to Scheduled Tribe candidate. One application from a candidate belonging to SC community was received but the same was rejected because that candidate was joint holder of property and had not income certif¬icate in his own name. One in service candidate belonging to OBC category was one of the applicant but his application was reject¬ed due to the reason that it was received after the last date of receipt of application and his service record was also not good as there was adverse report of SDI(P), Salipur against him who was posted as EDMC there. In that situation, the selection could not have been made from amongst general candidates. The result of the selection would not have been declared in those circum¬stances. After about one year a fresh notification was issued on 15.6.1998 inviting applications from the S.T. candidates only. Being aggrieved, Khirod Kumar Panda filed another O.A. No.336 of 1998 before the Central Administrative Tribunal, Cuttack Bench, challenging the subsequent selection and for setting aside the fresh notice dated 15.6.1998 calling for applications from open market for the post of EDSPM, Jignipur SO and further for a direction to the Superintendent of Post of Offices, Cuttack to publish the result of the earlier selection and to give appoint¬ment according to the same. The Tribunal in that O.A. had passed and interim order after filing of show cause by the respondents of the O.A. to the effect that any selection made in pursuance of the public notice dated 15.6.1998 would be subject to the result of the O.A. and this condition would be specifically mentioned in the order of appointment issued to the person so selected and appointed. 4. It is necessary to mention here that as a result of above mentioned subsequent selection Goutam Ch. 4. It is necessary to mention here that as a result of above mentioned subsequent selection Goutam Ch. Das the petition¬er in O.J.C. No. 12811 of 1999 was selected and appointed as EDSPM, Jignipur SO. 5. Thereafter, the Tribunal decided the aforesaid O.A. vide impugned judgment and order dated 23.4.1999 quashing the notice dated 15.6.1998 and directing that the earlier selection process which was not completed pursuant to the letter sent to the Employment Exchange dated 24.3.1997 would be completed strictly in accordance with the rules taking into account the candidatures of the 14 persons who had applied for that post (including opposite party of OJC No.11808/1999- Khirod Kumar Panda) within a period of six days from the date of receipt of copy of that order. 6. The plea of the Senior Superintendent of Post Offices raised through Mr. J. K. Mishra, learned Asst. Solicitor General of India in the instant case is that it was correct that Khirod Kumar Panda was allowed to participate in the selection for the post of EDSPM, Jignipur SO and in all 14 persons had made appli¬cations for the same and there was no application from ST Candi¬dates and the application of OBC candidate was rejected as it was received after due date and there was also an adverse report of SDI(P), Salipur against that candidate where he was already posted as EDMC and the sole application of a candidate belonging to SC was received but he could not fulfil the condition as he was a joint holder of the property and had no income certificate in his own name and as such his application was also rejected and in view of this there was no candidate from reserved category. Thereafter instructions were received from the Department of Posts, office of the Chief Post Master General of Orissa dated 23.12.1997 enclosing that DTE letter dated 27.11.1997, wherein it was, inter alia, directed that the reservation ceiling of 50% should not be violated in any particular or on the basis of total no of posts. If in any recruiting unit, there is an excess repre¬sentation of any of the reserved categories or of the total representation of the reserved categories has already exceeded 50% of the total no. of posts, it should be adjusted in the future appointments. 7. If in any recruiting unit, there is an excess repre¬sentation of any of the reserved categories or of the total representation of the reserved categories has already exceeded 50% of the total no. of posts, it should be adjusted in the future appointments. 7. It was also mentioned in the aforesaid letter that in case the Employment Exchange fails to sponsor the minimum number of three eligible candidates, an open advertisement should be issued calling for nominations and even then if the minimum number of three eligible candidates do not offer, approval of their candidatures from the next higher authority to the proposed appointment should be obtained before selection is made from amongst such candidates and therefore fresh notification for the vacancy in question was issued on 15.6.1998 calling for fresh applications from ST community only through public advertisement. It was indicated therein that if minimum three eligible candi¬dates from ST community do not apply, then the vacancy will be treated as unreserved and preference will be given to the candi¬dates belonging to OBC community and then SC community. But in case minimum three eligible candidates belonging to these catego¬ries do not apply, the vacancy will be treated as unreserved and will be offered to candidates belonging to other community. 8. The Tribunal found that since the circular dated 23.12.1997 was prospective and could not have been applicable retrospectively, the selection process already started by sending a letter dated 24.3.1997 could not have been dropped on the basis of the said circular. 9. Mr. J. K. Mishra, learned Asst. Solicitor General has drawn the attention of this Court towards the earlier circular of the D.G. P & T dated 8th October, 1980 in which it has been mentioned that the representation of SC and ST candidates in the employment of ED staff should at least be kept to the prescribed minimum limits as in the Groups ‘C’ and ‘D’ posts in the Depart¬ment. He has further submitted that at the time the requisition was sent to the Employment Exchange vide letter dated 24.3.1997 there was a circular for filling up the vacancies by the candi¬dates of reserved category only and there was no circular or rule to the effect that in case of non-availability of reserved cate¬gory candidates the post will be filled up by the candidates of general category and as such in the absence of such a rule the vacancies reserved for SC and ST could not have been filled up by the candidates of general category. He has also drawn the atten¬tion of this Court towards the letter dated 24.3.1997 in which at point No.5 it has been specifically mentioned that : “5. S.C./S.T. Candidate may be sponsored. ST Candidates will be given preference.” 10. We have considered the pleadings of the parties and gone through the documents. The requisition dated 24.3.1997 sent for nomination of candidates for the post of EDSPM, Jignipur, SO sent to the Employment Exchange Officer, Cuttack in which it was no where mentioned that the post was to be filled up from the candidates belonging to the general category or preferential category. It was specifically mentioned therein that SC/ST candi¬dates may be sponsored as quoted above and it was also mentioned therein that the ST candidates would be given preference, meaning thereby that the requisition was sent for sponsoring candidates only belonging to SC/ST category and amongst SC/ST candidates, which were to be sponsored by the Employment Exchange, the ST candidates were to be given preference over SC candidates. It did not mean that amongst general candidates, ST candidates would be given preference and therefore, it cannot be said that the requi¬sition was sent to fill up the vacancy in question from the candidates belonging to general category with preference to any reserved category. Therefore, in these circumstances, it cannot be presumed that in case of non-availability of the candidate from reserved category the post was liable to be filled up from amongst the candidates belonging to general category and as such 14 candidates belonging to general category could not have been considered under the requisition to fill up the post in question. 11. Therefore, in these circumstances, it cannot be presumed that in case of non-availability of the candidate from reserved category the post was liable to be filled up from amongst the candidates belonging to general category and as such 14 candidates belonging to general category could not have been considered under the requisition to fill up the post in question. 11. As already mentioned above that no candidate from reserved category was available in the above selection held in 1997 and the post was reserved for the candidates belonging to reserved category only. Obviously there was no question of decla¬ration of result and as such the vacancy was to be notified afresh but before that in the meantime the circular dated 23.12.1997 was received, as such the vacancy was notified invit¬ing applications from open market in accordance with that circu¬lar. Therefore, in our opinion no illegality was committed by the Superintendent of Post Offices, petitioner No.2 in OJC No. 11808 of 1999 in inviting application in accordance with the new policy laid down in the said circular dated 23.12.1997. 12. In view of the above-mentioned facts and circumstances, the impugned judgment and order passed by the Tribunal is not sustainable in the eye of law. 13. At this stage, we would like to put on record that the opposite party of O.J.C. No. 11808 of 1999, namely, Khirod Kumar Panda who was the son of the deceased late Gokulananda Panda then EDSPM, Jignipur So, who passed away in harness on 8.7.1996 after putting in about 32 years of service was entitled to get compas¬sionate appointment. It is also to be noticed that he used to work as substitute whenever his father remained on leave. He also fulfilled the minimum requisite qualification to hold such a post. We see no reason to reject his candidature for compassion¬ate appointment by the Circle Relaxation Committee. It has come to our notice that number of vacancies are existing in the cir¬cle. Although he was liable to be appointed in place of his late father at Jignipur SO, as the petitioner in OJC No. 12811 of 1999 has been given appointment in that post, we are not inclined to disturb his appointment. However, we direct that the case of the opposite party shall be reconsidered by the Circle Relaxation Committee sympathetically, as he is struggling for getting com¬passionate appointment since last nine years without success. However, we direct that the case of the opposite party shall be reconsidered by the Circle Relaxation Committee sympathetically, as he is struggling for getting com¬passionate appointment since last nine years without success. The authorities have appointed inexperienced persons but the experi¬enced person who is available and is entitled to get compassion¬ate appointment has not been considered for the same. 15. In the result, both the writ petition are allowed in part. The impugned judgment and order dated 23.4.1999 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 336 of 1998 is quashed. 16. However, it is directed that the appointment of the opposite party-Khirod Kumar Panda (OJC No. 11808 of 1999) shall be considered on compassionate ground, afresh in the light of the observation made above and in case he is given compassionate appointment, it will be open for the Senior Superintendent of Post Offices, Cuttack to post Khirod Kumar Panda as EDSPM, Jigni¬pur SO and accommodate the petitioner of OJC No.12811 of 1999 Sri Goutam Ch. Das at any other place. PRADIP MOHANTY, J. I agree. Writ petition allowed in part.