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2007 DIGILAW 414 (CAL)

Dilip Kumar Mondal v. UNION OF INDIA

2007-06-08

BHASKAR BHATTACHARYA, KISHORE KUMAR PRASAD

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Judgment :- (1.) THIS application under Article 226/227 of the Constitution of India is at the instance of an unsuccessful applicant under section 19 of the Administrative Tribunal Act and is directed against order dated July 13, 2006 passed by the Central administrative Tribunal, Kolkata Bench, in O.A. No. 510 of 2005 thereby rejecting the application filed by the writ-petitioner by which he challenged the appointment of the private-respondent in the post of External Department Delivery Agent ("edda"). (2.) THE facts giving rise to filing of the present writ-application may be summed up thus: (a) The names of the writ-petitioner and 12 other persons were sponsored by the Employment Exchange for the purpose of filling up the post of EDDA. The writ-petitioner along with other candidates appeared before the selection-board and subsequently, one Kamal Sardar was appointed in the said post. b) The private-respondent in the past filed an application under section 19 of the Administrative Tribunal Act before the Tribunal challenging the appointment of the said Kamal Sardar, which gave rise to O.A. No. 1244 of 1995 and the Tribunal set aside the said appointment by directing the respondent authority to make fresh selection after taking into consideration the candidatures of all the candidates in the process of selection. The Tribunal specifically directed that the appointment should be given to the person who secured the highest mark in the Madhyamik examination among the candidates after complying with the rules of reservation of the scheduled castes and scheduled tribe, if those were applicable. c) Pursuant to the said direction given by the Tribunal, the respondent authority selected the private-respondent No. 5 for the said post. According to the writ-petitioner, he secured the highest mark in the Madhyamik Examination among all the candidates and therefore, it was the duty of the respondent to appoint him in the said post and accordingly, the said selection was challenged by the writ-petitioner by filing an application under section 19 of the Act before the Tribunal. d) The application was contested by the respondent by filing reply thereby contending that the private-respondent secured the highest mark being 427 without taking into consideration the marks obtained in the additional subject and therefore, he was rightly appointed. d) The application was contested by the respondent by filing reply thereby contending that the private-respondent secured the highest mark being 427 without taking into consideration the marks obtained in the additional subject and therefore, he was rightly appointed. According to the respondent, the writ-petitioner secured 428 marks in the Madhyamik Examination which included 65 marks obtained in the additional subject and accordingly, 31 marks were added after the deduction of pass marks of 34 and therefore, if the marks of the additional subject are excluded, the total marks will come down to 397. On the other hand, the private-respondent did not get the benefit of any additional mark as he secured less than 34 marks in the additional subject. The respondent, therefore, prayed for dismissal of the application filed before the Tribunal. e) The Tribunal below accepted the contention of the respondent and held that the private-respondent should be deemed to have secured the highest mark in the Madhynmik Examination as he secured 427 whereas the writ-petitioner obtained 397 without taking into consideration the marks obtained in the additional subject. (3.) BEING dissatisfied, the writ-petitioner has come up with the present application under Article 226/227 of the Constitution of India. (4.) MR. Samanta, the learned counsel appearing on behalf of the writ-petitioner vehemently contended before us that the Tribunal erred in law in holding that the highest mark obtained by a candidate should be determined by excluding the marks obtained in the additional subject. Mr. Samanta points out that according to the Rules of the examination, the marks obtained by a candidate in the additional subject after deducting the first 34 marks are added to the aggregate for the purpose of considering the position of the candidate in the examination and the division in which the candidate is placed is also determined on the basis of inclusion of such additional marks. Mr. Samanta in this connection draws the attention of this Court to the circular dated May 22, 1996 issued by the Assistant Director General (ED and TRG) clarifying that the marks obtained in the additional subject should be ignored for the purpose of assessing their marks in the examination. According to Mr. Samanta, such clarification issued by the said Officer has no force of law. According to Mr. Samanta, such clarification issued by the said Officer has no force of law. He further points out that even if it is assumed for the sake of argument that such circular has any force of law, the same is not applicable to the case before us as the process of selection started prior to the issue of such clarification. Mr. Samanta, therefore, prays for setting aside the order passed by the tribunal and declaring his client as the successful candidate. (5.) THIS application is opposed by the Union of India and Mrs. Qureshi, the learned advocate appearing on its behalf, supports the order passed by the Tribunal and contends that the clarification issued by her client is applicable to the facts of the present case. Mrs. Qureshi, therefore, prays for dismissal of the present writ-application. (6.) THEREFORE, the only question that arises for determination in this writ-application is whether the respondent authority was justified in excluding the marks obtained by the writ-petitioner in the additional subject for the purpose of assessing his position among the candidates. (7.) AFTER hearing the learned counsel for the parties and after going through the materials on record we are of the view that in the case before us the marks obtained by the candidates in the additional subject in the Madhyamik Examination should be taken into consideration for the purpose of assessment of their position in the merit-list. (8.) WE find substance in the contention of Mr. Samanta, the learned advocate appearing on behalf of the writ-petitioner that the process of selection in the case before us having been initiated in the year 1995, the clarification issued by the concerned Officer of the Union of India in the year 1996 cannot guide the present case even if we assume for the sake of argument that such clarification has the force of law overriding the Rules framed by the statutory authority holding the examination. It appears from the advertisement for the post concerned that the candidates should pass Madhyamik Examination or its equivalent. It further appears from record that the position of a candidate in such examination is decided after taking into consideration the marks obtained in the additional subject excluding the pass mark of 34. The various categories of the "divisions" are conferred upon the examinees after taking into consideration such marks obtained in the additional subject. It further appears from record that the position of a candidate in such examination is decided after taking into consideration the marks obtained in the additional subject excluding the pass mark of 34. The various categories of the "divisions" are conferred upon the examinees after taking into consideration such marks obtained in the additional subject. Therefore, there is no reason why the added marks obtained by a candidate from the marks obtained in the additional subject should not be taken into consideration for their assessment. In the case before us, the private-respondent failed to secure even the pass mark in the additional subject, as a result, no mark was added to his credit whereas the writ-petitioner has obtained 65 marks in the additional subject, 65-34=31 marks were added to his aggregate marks. The Board of Secondary Education, a statutory authority, having decided to take into account the marks so obtained in the additional subject for the purpose of assessing his position in the merit list, we find no reason to ignore such decision in the facts of the present case. (9.) WE have already found that the clarification issued by the Union of India having been issued during the process of selection, the same would not be applicable to the facts of the present case. In this connection we may profitably refer to the following observations of the supreme Court in the case of Gopal Krishna Rath v. M.A.A. Baig, reported in AIR 1999 SC 2093 : "when the selection process has actually commenced and the last date for inviting application is over, any subsequent change in the requirement regarding qualifications by the University Grants commission will not affect the process of selection which has already commenced. Otherwise it would involve issuing a fresh advertisement with the new qualifications. In the case of P. Mahendran v. State of Karnataka, (1990)1 SCC 411 at 416 : ( AIR 1990 SC 405 at pp. Otherwise it would involve issuing a fresh advertisement with the new qualifications. In the case of P. Mahendran v. State of Karnataka, (1990)1 SCC 411 at 416 : ( AIR 1990 SC 405 at pp. 408 and 409) this Court has observed: "it is well settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect." The Court further observed that: "since the amending rules were not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover, as the process of selection had already commenced when the amending Rules came into force, the amended Rules could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment. " (10.) WE, accordingly, do not propose to enter into the question whether the concerned Officer of the Union of India had the authority to ignore the Rules of examination for assessing the merit of a candidate as settled by a statutory authority as in our view the new guideline will not govern the case in hand. (11.) WE, therefore, find that among the candidates who appeared at the process of selection for the post, the writ petitioner secured the highest mark in the Madhyamik Examination and therefore, the respondents ought to have selected the writ-petitioner instead of the private-respondent. No other deficiency having been pointed out by the respondent authority, which could stand in the way of selecting the writ-petitioners to the post concerned, we set aside the appointment of the private-respondent and direct the Union of India to appoint the writ-petitioner in the post concerned. Such appointment letter should be given within a month from today and the writ-petitioners, although will get his salary from the date of joining the post, should get the benefit of notional appointment from the date the private -respondent was appointed in that post for all other purposes. (12.) THE writ-application thus, is, allowed to the extend indicated above; the order passed by the Tribunal is set aside and consequently, the appointment of the private-respondent is quashed. (12.) THE writ-application thus, is, allowed to the extend indicated above; the order passed by the Tribunal is set aside and consequently, the appointment of the private-respondent is quashed. The Union of India, however, will not recover the remuneration already given to the private-respondent for doing his job pursuant to the order of appointment, which has been set aside by this order. In the facts and circumstances, there will be, however, no order as to costs. Petition allowed.