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2009 DIGILAW 171 (ORI)

PURNA CHANDRA BEHERA v. UNION OF INDIA (UOI)

2009-03-02

I.M.QUDDUSI, SANJU PANDA

body2009
JUDGMENT : I.M. Quddusi, J. - This Writ Petition has been filed against the impugned Judgment and Order Dated 20th August, 2004 passed by the Central Administrative Tribunal in O.A. No. 109 of 2000 dismissing the Original Application filed by him. 2. The brief facts of the case are that the Petitioner who belongs to Scheduled Caste community was directly recruited to the UDC cadre of SBCO in the Central Government in the Department of Posts and joined the post on 30th May, 1983, as per D.G.(Post), New Delhi letter No. 51-5/71-SPB-1 dated 18.7.1971. According to the said letter, directly recruited UDC's are required to pass the confirmation examination. Those who fall to pass the confirmation examination in three chances within a period of four years from the date of regular appointment may be offered the lower post of LDC, if they are willing; otherwise they may be discharged from service. 3. The Petitioner appeared in two tests held in the year 1984 and 1986, but failed. In the year 1987, he was given additional chance but he did not avail. But in the year 1989, when the confirmation I examination was held, he was not permitted to appear. Ultimately, he approached the Central Administrative Tribunal by filing O.A. No. 249 of 1989 and the Tribunal directed the Opposite Parties to give the Petitioner another chance. Consequently he was given chance but could not succeed as a result of which he was offered the post of L.D.C. and was posted as L.D.C. 4. However, vide letter No. 26-2/81-SPB-1 dated 4.5.1981 a provision was made for review of results of failed Scheduled Caste & Scheduled Tribe candidates and it was provided that such candidates who could not qualify in the confirmation examination can be exempted from such examination. Therefore, the Petitioner challenged his reversion to L.D.C. before the Tribunal by filing O.A. No. 150 of 1992 praying therein to review his result as a S.C. candidate as per the provisions contained in the aforesaid letter dated 4.5.1981. During the pendency of the aforesaid O.A., the Circle Review Committee reviewed the case of the Petitioner in the year 1996 and declared him successful in the confirmation examination of directly recruited UDCs held on 5.6.1989 and his posting to a lower post i.e. a post of L.D.C. was cancelled vide Order Dated 27.3.1997. During the pendency of the aforesaid O.A., the Circle Review Committee reviewed the case of the Petitioner in the year 1996 and declared him successful in the confirmation examination of directly recruited UDCs held on 5.6.1989 and his posting to a lower post i.e. a post of L.D.C. was cancelled vide Order Dated 27.3.1997. But the benefit of the seniority was not given to him from the date of regular appointment i.e. 30th May 1983 but was given with effect from the date of success in the confirmation examination i.e. 1989. Being aggrieved he filed the Original Application before the Learned Tribunal. The Tribunal referring to the provision of Rule 254 of P & T Manual Volume-IV dismissed the Original Application. Hence the instant Writ Petition. 5. First of all it is to be seen that the Petitioner had to pass the confirmation examination in three chances within a period of four years from the date of appointment. His date of appointment was 30th May, 1983. Therefore, he had to pass the confirmation examination by 29th May, 1987. But in the year 1987 he did not avail the chance and in the year 1989 he was not permitted to appear and ultimately the Tribunal directed to allow him to appear. However, at the time the circular (DG (Posts), New Delhi No. 26-2/81-SPB-1 dated 4.5.1981) regarding review of results of failed Scheduled Caste & Scheduled Tribe candidates was in existence, but the case of the Petitioner was not reviewed in accordance with that circular. This cannot be said to be a fault of the Petitioner. If his case would have been reviewed, ho would not have been posted to the lower post, i.e. L.D.C. We have not used the word 'reversion' since the Petitioner was not appointed to the post of L.D.C. and was never promoted to the post of UDC but was directly recruited to the cadre of UDC and hence there could have been no question of reversion. Rather it can be said that he was offered a lower post which was later cancelled as mentioned above. Rather it can be said that he was offered a lower post which was later cancelled as mentioned above. Now in this regard, the provisions of Para 254, of the P & T Manual may be perused which are quoted as under: 254 Note- (1) Candidate who have failed in the available four chances subsequent to their appointment as Time Scale clerks or sorters will get two additional chances to pass the examination. If any official could not avail of any of the six chances available subsequent to his appointment due to circumstances beyond his control and the Head of the Circle is fully satisfied about the genuineness of the case then the missed chance will not be set off against the permissible chances. (2) The seniority of an official who passes this examination in the fifth or sixth chance will count from the date of his passing the examination. 6. A perusal of the above quoted provision shows that the candidate will avail four chances and two additional chances and if any official could not avail of any six chances available subsequent to his appointment due to circumstances beyond his control and the Head of the Circle is fully satisfied about the genuineness of the case then the missed chance will not be set off against the permissible chances and for this seniority of the official and the candidates who passed examination in the fifth or sixth chance will count from the date of his passing the examination, Therefore, this clause cannot be made applicable where a person belonging to Scheduled Caste & Scheduled Tribe is exempted from passing the examination. Further the Petitioner availed only two chances i.e. first in the year 1984 and the second in the year 1986 and did not avail the chance in the year 1987. He was permitted to appear in the examination by the Central Administrative Tribunal, but he could not be successful. Therefore, there is no question of availing chance in 5th or 6th attempt and declared pass. The above provision would only be applicable where a candidate passed the examination in 5th or 6th attempt. But in the instant case, the Petitioner could not pass in 5th or 6th chance. He was exempted from passing the examination under the above circular dated 4.5.1981. 7. The above provision would only be applicable where a candidate passed the examination in 5th or 6th attempt. But in the instant case, the Petitioner could not pass in 5th or 6th chance. He was exempted from passing the examination under the above circular dated 4.5.1981. 7. In view of the above, we are of the considered view that the seniority of the Petitioner could not have been affected on the basis of the notes 1 and 2 of Rule 254 of the P & T Manual quoted above. 8. Having regard to the facts and circumstances discussed above, the impugned order passed by the Tribunal is not sustainable in the eye of law. Therefore, the same is quashed and the Writ Petition is allowed. A writ of mandamus be issued directing the Opposite Parties to review the seniority of the Petitioner during his continuous qualified service right from the date of his appointment and provide consequential benefits to him. There would be no order as to costs. Final Result : Allowed