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2008 DIGILAW 648 (ORI)

MISS PRITILATA NANDA v. UNION OF INDIA (UOI)

2008-08-05

I.MAHANTY, L.MOHAPATRA

body2008
JUDGMENT : I. Mahanty, J. - The Petitioner has filed the present writ application seeking to challenge the order dated 3.5.2001 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 198 of 1997 whereby the Tribunal has rejected the application filed by the Petitioner seeking a direction to the Divisional Railway Manager-opposite party No. 4 and other authorities to give appointment to the Petitioner with effect from the date on which her juniors were given appointment. 2. Mr. Sanjib Mohanty, learned Counsel for the Petitioner, inter alia, contended that the Railway Department had issued a notification inviting applications from the physically handicapped candidates for filling up Class-III posts in the Indian Railways. The Petitioner had made an application in response to the said advertisement and had thereafter appeared the written test held on 2.7.1989. The Petitioner was duly selected in the written test and was issued with a call letter to attend the Viva-Voce Test. It appears that on 18.8.1989 the Petitioner attended the Viva-Voce Test and was duly selected. It is averred by the Petitioner that a final select-list was prepared and 17 candidates were empanelled in which the name of the Petitioner was at Serial No. 11 of the merit list. It is averred by the Petitioner that although 13 candidates were given appointment, no appointment letter were issued to the Petitioner for the reason that her name had not been sponsored by the Employment Exchange. 3. It appears from the impugned order of the Tribunal that the Petitioner placed reliance upon a judgment of this High Court in the case of Susanta Kumar Kar Vs. Registrar (Judicial), Orissa High Court, as well as on a decision of the Hon'ble Supreme Court in the case of The Excise Superintendent, Malkapatnam, Krishna District, Andhra Pradesh v. K.B.N. Visweshwara Rao and Ors. 1996 (7) SUPREME 201 , to the effect that compulsory sponsoring arrangement by the Employment Exchange if insisted upon, affects interest of those candidates who has not been able to register their names or are awaiting to be so registered and, therefore, opposite parties were directed to consider the case of those candidates who have applied directly to the High Court. The aforesaid judgments were distinguished by the Tribunal by relying upon the counter affidavit filed by the Respondents and since applications were invited in the year 1987 and the written test and Viva-Voce Test were held in the year 1989 and the selection process was completed before the decision of the Supreme Court, the law as laid down by the Supreme Court was held only to be prospective and not to be applicable to the present case. Mr. Mishra, learned Counsel for opposite parties 4 and 5 reiterated the stand taken in their counter affidavit. 4. We have perused the pleadings of the parties and found that the Petitioner is a physically handicapped person having paralysis of lower limbs and had got first class in matriculation and B.A. with Economic Honours. It appears that the Petitioner had also registered her name in the Employment Exchange, Puri and was allotted with Registration No. CW/750/87 (Code No. X0I/30). Opp. Party No. 4 had issued an advertisement regarding recruitment of physical handicapped candidates against physically handicapped quota in Class-Ill category and applications were invited in the prescribed proforma. 5. It is the admitted case of the parties that pursuant to the said advertisement, the Petitioner made necessary application and the employer having found the application made by the Petitioner to be in conformity with the requirements of the advertisement, accepted the said application and permitted her to appear in the written examination. On being selected, the Petitioner was also permitted to attend the viva voce test. It is averred by the Petitioner that although a select list of successful candidates was prepared and the name of the Petitioner was at serial No. 11, when she did not get the appointment letter and the letters of appointment were issued to the persons below her serial number, she approached the competent authority and learnt that though she was selected, she was not issued with the appointment letter since she had not filed Employment Exchange Card. The Petitioner who is a disabled person has narrated extensively in the writ petition the steps taken by her in approaching the authorities to issue her appointment letter, but all her efforts were of no avail. 6. The Petitioner who is a disabled person has narrated extensively in the writ petition the steps taken by her in approaching the authorities to issue her appointment letter, but all her efforts were of no avail. 6. It is averred by the Petitioner in the writ petition that the Railway authorities taking the aforesaid stand denied the Petitioner the letter of appointment which she was awaiting and instead filled up the vacant post by appointing an outsider, namely, Mr. Sandeep Choudhury. The plight of the Petitioner has been narrated in paragraph-8 of the writ Petitioner. The substance of the letter dated 2.11.1995 written by the D.R.M., Khurda to the C.P.O., S.E. Railway referring to his earlier letter dated 3.5.1995 was to the following effect: Kumari Pritilata Nanda appeared for written test on 2.7.1989 and viva-voce on 28.9.89 for adjudging her suitable for group 'C' post against physically handicapped quota. Subsequently her name was sent to Headquarteres along with 16 (sixteen) candidates for obtaining the approval of the competent authority, out of which the action of the competent authority in respect of 13 (thirteen) candidates was communicated vide letter No. P/R and R/PHB/282 dt. 14.1.92. Besides above, the decision of other 3(three) cases including the case of Kumari Pritilata Nanda, D/o. Sri N. Nanda, Head Clerk, Low Puri is still awaited from Head quarters. In that letter it has also been written that suitable reply may be sent to the party from you and under intimation to the office. It appears that in spite of the aforesaid letter, there has been no response from the office of the C.P.O.. 7. The averments made by the Petitioner in this writ application have been responded to by the railway authorities in their counter affidavit filed on behalf of Opp. Party No. 5 who in paragraph-5 of the counter has stated as follows: 5. That the Petitioner along with others was called upon to attend the written test held on 02.7.1989. Viva-voce Test was also conducted on 28.8.1989 and 06.11.1989. At the stage of approval, it was found that the name of the Petitioner and 03 other persons have not been sponsored by any special Employment Exchange nor any ordinary Employment Exchange which was a condition precedent for consideration of appointment. Viva-voce Test was also conducted on 28.8.1989 and 06.11.1989. At the stage of approval, it was found that the name of the Petitioner and 03 other persons have not been sponsored by any special Employment Exchange nor any ordinary Employment Exchange which was a condition precedent for consideration of appointment. Accordingly, 04 names including the name of the Petitioner were dropped at the final stage before issue of the appointment order on the ground that she did not comply all the conditions in terms of Notification under Annexure-1. 8. In view of the aforesaid stand taken by the Railway authority, the averments made by the Petitioner remain uncontroverted and are affirmed. The recruitment process started in the year 1987 through an advertisement and thereafter, written test and Viva Voce test were held in the year 1989 and the select list of candidates was published on 14.1.1992. It is indeed necessary to note the very sorry state of affairs of the manner in which the authorities concerned are dealing with the life and livelihood of common citizens. It needs to be reiterated that whereas physical handicapped candidates are required to be approached with a more compassionate manner, the authorities seem to have acted in a callous and heartless manner. Once the Petitioner's application was accepted by the authorities and she was allowed to appear the written and viva voce test and after name finds mention at serial No. 11 of the merit list, it was no longer open to the authorities concerned to raise any question relating to Petitioner's application for the purpose of dis-entitling her from the benefit of issuing her with an appointment letter. We consider it to be a gross abuse of the statutory power. In the case at hand, the plight of the Petitioner is writ large in the averments contained in the writ application and accompanying documents and unfortunately, the utter callous attitude of the authorities are writ large in the counter affidavit filed on behalf of Opp. Party No. 5. It is indeed unfortunate that a physically handicapped female candidate who had applied in the year 1989 and more than 20 years have lapsed by now, has been denied appointment by the Railway authorities which is none else, but the Union of India, which is supposed to be an ideal employer. 9. Party No. 5. It is indeed unfortunate that a physically handicapped female candidate who had applied in the year 1989 and more than 20 years have lapsed by now, has been denied appointment by the Railway authorities which is none else, but the Union of India, which is supposed to be an ideal employer. 9. The judgment of the Supreme Court as well as of this High Court relied upon by the learned Counsel for the Petitioner are clear and unambiguous. It is reiterated herein that once the Court has held that compulsory sponsoring arrangement by Employment Exchange, if insisted upon, affects interest of those candidates who have not been able to register their names or are awaiting to be so registered, the same principle is final and binding on all courts and Judicial Tribunals and would apply fully to any pending case. We are of the view that the Tribunal, in the present case has approached the subject in pedantic manner by treating the aforesaid judgment has only prospective operation even though the challenge was pending before it even after the judgments were pronounced both by the Hon'ble Supreme Court and the High Court. It is averred by the Petitioner and not denied by the Opp. Parties that the Petitioner had registered her name in the Employment Exchange, Puri and had been granted a Registration number. Apart from it, all necessary certificates in support of her being a handicapped candidate has been appended to her application along with her certificates of educational qualification. We are of the view that the Petitioner satisfied all requirements of the advertisement inviting applications by the Railways and after accepting her application and ultimately preparing a select list which contained her name, not issuing appointment letter to her amounts to traversity of justice. 10. In view of the discussions made herein above, the writ application is allowed and the order impugned under Annexure-1 is quashed and we direct Opp. Parties 4 and 5 to issue the Petitioner with necessary letter of appointment and such appointment shall be given effect to from the date on which her juniors have been given appointment. We further direct that the Petitioner shall also be entitled to full back wages and seniority. Parties 4 and 5 to issue the Petitioner with necessary letter of appointment and such appointment shall be given effect to from the date on which her juniors have been given appointment. We further direct that the Petitioner shall also be entitled to full back wages and seniority. The letter of appointment be issued to the Petitioner within a period of 30(thirty) days from the date of this judgment and all arrears be computed and paid to the Petitioner within a period of six months from today. Final Result : Allowed