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2009 DIGILAW 128 (ORI)

DURYODHAN MOHAPATRA v. KSHIRABDHI TANAYA NAYAK

2009-02-12

B.S.CHAUHAN, I.MAHANTY

body2009
JUDGMENT : B.S. Chauhan, C.J. - This Writ Petition has been filed challenging the Judgment and Order Dated 9.5.2001 passed by the Central Administrative Tribunal rejecting the review application filed by the present Petitioner against its Judgment and Order Dated 1.3.2001 disposing of O.A. No. 172 of 2000 directing the competent authority to re-consider the case of appointment on the post of Extra Department Branch Post Master, hereinafter called (EDBPM), Mituani Branch Post Office. 2. The facts and circumstances giving rise to this case are that by public notice dated 14.5.1999 appointment to the said post was advertised to be filled up by the candidate belonging to S.T. community only. It was provided in the notice that in case requisite number of S.T. candidates were not available the post would be filed up by other reserved categories i.e. SC/OC/OBC failing which by the general category candidate. In response to the said public notice and also in response to the requisition sent to the Employment Exchange, the candidature of altogether 16 candidates was considered including the Opposite Party No. 1 and the present Petitioner. Petitioner was appointed in view of his financial status in spite of the fact that Opposite Party No. 1 had secured higher percentage of marks in HSC examinations, i.e., she secured 353 marks out of 750 marks representing 47.66% whereas the present Petitioner secured only 244 out of 700 representing 34.85% in HSC examinations. Being aggrieved, Opposite Party No. 1 challenged the said appointment by filing O.A. No. 172 of 2000 before the Central Administrative Tribunal which was allowed vide Judgment and Order Dated 1.3.2001 (Annex-6). The Tribunal remanded the matter to the Department directing for reconsideration. In spite of notice the Petitioner did not contest the case. Subsequent thereto the Petitioner filed a review application which was rejected by the Tribunal vide Judgment and Order Dated 9.5.2001 (Annex-7). Hence this Writ Petition. 3. Mr. P.K. Khuntia, Learned Counsel for the Petitioner has submitted that Opposite Party No. 1 had filed a manipulated and false income certificate and was not found suitable so far her financial condition was concerned and therefore, her candidature was liable to be rejected only on that ground, and therefore, the inter se merit of the candidates becomes meaningless on such fact situation. 4. 4. Learned Central Government Counsel has supported case of the Petitioner submitting that the Petitioner had been appointed in accordance with law. Therefore, the Tribunal committed an error in interfering with the appointment. In the review petition before the Tribunal as well as before this Court, Opposite Party No. 1 remained un-represented in spite of notice. Thus petition deserves to be allowed. 5. We have considered the submissions made by the Learned Counsel for the Petitioner as well by the Learned Central Government Counsel and perused the record. 6. So far as the appointment of EDBPM is concerned, the legal proposition is settled. The Tribunal on the basis of higher marks secured by Opposite Party No. 1 allowed the Original Application and directed the departmental authorities to consider the case afresh. Undoubtedly, it is well settled that no person should be permitted to rely upon a forged document as fraud vitiates every thing. However, the Learned Tribunal has not directed the Department to appoint Opposite Party No. 1 .There is no explanation worth consideration by the present Petitioner as under what circumstances he remained un-represented before the Tribunal. We find no force in the submission made by Mr. Khuntia in this regard that the Union of India had assured the Petitioner that it would protect his interest. The Petitioner ought to have contested the case. 7. While deciding a similar issue in Suman Verma v. Union of India and Ors. (2004) 12 SCC 57, the Apex Court placed reliance upon the letter of D.G. Post No. 17497/90 EDA Training dated 10.05.1991 which stipulated as under: When the Constitution of India guarantees equal opportunity to all for their advancement, the reasonable course would be offer ED employment to the person who secured maximum marks in the examination which made him eligible for the appointment, provided the candidate has the prescribed minimum level of property and income so that he has adequate means of livelihood apart from the ED allowances. 8. The Hon'ble Supreme Court held that the candidate who secured more marks should be offered appointment, if he is otherwise found eligible. 9. A similar view has been reiterated by the Apex Court while dealing with the case of appointment on the post of Extra Departmental Delivery Agent. (EDDA) in the Post Office in Surinder Singh v. Union of India and Ors. (2007) 11 SCC 599 . 9. 9. A similar view has been reiterated by the Apex Court while dealing with the case of appointment on the post of Extra Departmental Delivery Agent. (EDDA) in the Post Office in Surinder Singh v. Union of India and Ors. (2007) 11 SCC 599 . 9. In Indra Sawhney etc. etc Vs. Union of India and others, etc. etc. the Hon'ble Supreme Court held as under: It may not be permissible to de bar a citizen from being considered for appointment to an office under the State solely on the basis of his income or property holding. Since the employment under the State is really conceived to serve the people (that it may also be source of livelihood his secondary), no such bar can be created. Any such bar would be inconsistent with the guarantee equal opportunity held out by Clause (1) of Article 16. 10. The law requires recognition of the merit of every eligible candidate and no person can be deprived or discriminated on the basis of income or property held by him. Thus, no fault can be found with the impugned Judgment and order. 11. In view of the above, as there were only two private parties before the Tribunal, the candidature of the Petitioner and Opposite Party No. 1 is to be considered afresh. 12. A Constitution Bench Judgment of the Hon'ble Supreme Court in Cumbum Roadways (P) Ltd. Vs. Somu Transport (P) Ltd. and Others wherein the Hon'ble Apex Court observed as under: On principle, therefore, it does not appear right that the High Court should set aside orders in appeal passed by the Appellate Tribunal when the parties to those appeals do not bring-up the matter before the High Court, simply because as the matter of convenience the Appellate Tribunal deals with all the appeals relating to one route by the consolidated order. Therefore, we are of the opinion that the remand should only be confined to those parties which came to the High Court and not extend to others, as the High Court would have no jurisdiction to interfere with the orders of the Appellate Tribunal either in favour or against the parties which have not come to it. 13. Similar view had been taken by the Hon'ble Supreme Court in Hanuman Transport Corporation v. Meenakshi G. Ramabhai Civil Appeal No. 794 of 1963, decided on 20.2.1963. 13. Similar view had been taken by the Hon'ble Supreme Court in Hanuman Transport Corporation v. Meenakshi G. Ramabhai Civil Appeal No. 794 of 1963, decided on 20.2.1963. A similar view has been reiterated in The Anamalais Bus Transports (P) Ltd., Pollachi v. Sri Tiruppurkarur Transports (P) Ltd. Tiruppur and Ors. AIR 1966 Mad 470 . The same view has been taken by the Rajasthan High Court in Rajasthan Barytes Ltd. and Anr. v. State of Rajasthan and Ors. (1999) 2 RLW 835. 14. In view of the above, we dispose of the Writ Petition requesting the appointing authority to ensure compliance of the Judgment and order of the Learned Tribunal permitting the parties to raise all factual and legal issues-and make selection in accordance with law explained hereinabove. The proceedings are to be completed within a period of three months from today. 15. Learned Central Government Counsel undertakes to communicate this order to the competent authority. Till a decision is taken by the competent authority in the matter, the interim order passed by this Court shall continue.