Judgment :- ELIPE DHARMA RAO, J 1. Aggrieved by the order passed by the Central Administrative Tribunal in O.A.No.900 of 2010, dated 2.11.2011, the applicant before the Tribunal, has come forward with the present writ petition. 2. The facts leading to filing of the writ petition are as follows :- Petitioner is a Diploma holder in Civil Engineering and got fully qualified for the post of Draughtsman Grade-II. The second respondent had issued a notification dated 31.7.2006 calling for applications for filling up 25 posts of Draughtsman Grade II and the details of vacancies as per the reservation policy was MBC-04; OBC-03; SC-04 and General Category -14. Subsequently, the respondents 1 and 2 published the select list and a wait list consisting of 10 candidates. The petitioner's name could not find a place in the selection list, however, he was placed first in the wait list under OBC category. The petitioner has secured 60 marks and the third respondent has secured 58 marks in the examination. However, it was informed that the third respondent was selected under Meritorious Sports Persons quota (in short "MSP quota"). While the matter stood thus, one Mr. Vengadeswaran, who was not selected under MSP quota, challenged the appointment of the third respondent by filing O.A.No.527 of 2008 before the Tribunal under MSP quota. The Tribunal allowed the said O.A.No.527 of 2008 and set aside the appointment of Respondent No.3. Aggrieved by the aforesaid order of the Tribunal, the Department as well as Respondent No.3 preferred two writ petitions in W.P.Nos.26963 & 26535 of 2009. A Division Bench of this Court by order dated 22.4.2010, dismissed the writ petitions by observing as follows :- "12.) In view of the above stand taken by the Government of Puducherry, though we dismiss the writ petitions, we are not inclined to interfere with the appointment of the third respondent. On the other hand, we direct the Government of Puducherry to appoint the applicant by name S. Vengadeswaran to the post of Draughtsman in the scale of pay of Rs.9,300-32300 + Grade Pay 4200. We also direct that the seniority of the applicant will be counted from the date of appointment of the third respondent viz., 2.1.2007 and he will be placed over and above the third respondent. However, the applicant would be entitled to salary from the date of his actual appointment pursuant to the order of this Court. We also direct that the seniority of the applicant will be counted from the date of appointment of the third respondent viz., 2.1.2007 and he will be placed over and above the third respondent. However, the applicant would be entitled to salary from the date of his actual appointment pursuant to the order of this Court. We further direct the Government of Puducherry to issue the appointment order to the applicant forthwith so as to enable him to join duty with effect from 1.5.2010. With these observations and directions, both the writ petitions are dismissed." 3. Coming to know that the third respondent, who had secured lesser marks than him, got appointed as Draughtsman Grade-II under OBC category, approached the authorities for appointment against OBC vacancy. Since the Respondents 1 and 2 have not considered the claim of the petitioner, he approached the Tribunal by way of filing Original Application claiming the following relief :- "i) to direct the Respondents 1 and 2 to appoint the applicant in the post of Draughtsman Grade II on the basis of the select list dated 10.12.2006 with all other consequential benefits including arrears of wages, seniority, etc., with effect from the date on which the third respondent was appointed;" 4. The Tribunal, after considering the contentions raised, though observed that the appointment of the third respondent is due to the protection given under the order of the High Court and it is not an appointment by operating the waiting list prepared in 2006, refused to interfere with the appointment of the third respondent as the High Court had considered on humanitarian ground, thereby rejected the O.A. of the petitioner. The said order is under challenge. 5. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for Respondents 1 and 2 and the learned counsel appearing for Respondent No.3 and perused the materials on record. 6. It is seen that a notification dated 31.7.2006 was issued by the Public Works Department, Puducherry, inviting applications for filling up the 25 vacancies in the post of Draughtsman Grade II by direct recruitment. Based on the merit in the written examination, the third respondent was appointed as Draughtsman under the Meritorious Sports Persons quota and adjusted against the point reserved for Other Backward Class. Based on the merit in the written examination, the third respondent was appointed as Draughtsman under the Meritorious Sports Persons quota and adjusted against the point reserved for Other Backward Class. It is not in dispute that the petitioner's name was found as first candidate in the wait list under OBC category. It is further not in dispute that the petitioner has secured 60 marks, whereas the third respondent has secured 58 marks i.e., two marks less than the petitioner under OBC category. Against the appointment of the third respondent, one S. Vengadeswaran, a MBC candidate, preferred O.A.No.527 of 2007 before the Tribunal, which, by order dated 19.8.2009 set aside the selection of the third respondent and directed the official respondents to consider the said S. Vengadeswaran under MSP quota to the post of Draughtsman Grade II. The aforesaid order of the Tribunal came to be challenged by the Department as well as the third respondent by way of writ petitions. It was the contention of the third respondent that he was eligible to be selected under the sports quota and not S. Vengadeswaran. Even the stand of the Respondents 1 and 2 was that Thiru S. Vengadeswaran was not selected because he secured less marks in the written test conducted as per recruitment Rules than the third respondent, who is a meritorious sports person in the event of Carom, has secured 58/100, whereas Thiru S. Vengadeswaran has secured 46/100. After hearing both sides and going through the materials on record, the Division Bench dismissed the writ petitions. However, on humanitarian ground, taking into consideration the fact that there are 16 vacancies in the said post, has not interfered with the appointment of the third respondent. In compliance of the order passed by the Division Bench, Thiru S. Vengadeswaran was adjusted against the post reserved for sports quota at the point reserved for Most Backward Class and the third respondent was adjusted against the point reserved for OBC. 7. It is the contention of the learned counsel for the petitioner that the appointment of the third respondent is illegal on the ground that the third respondent had secured two marks less than the petitioner. 7. It is the contention of the learned counsel for the petitioner that the appointment of the third respondent is illegal on the ground that the third respondent had secured two marks less than the petitioner. It is also his contention that instead of adjusting the third respondent against the point reserved for OBC., the petitioner should have been appointed in the said post against the point reserved for OBC as he was the first person in the wait list meant for OBC. 8. Now, it is the stand of the respondents 1 and 2 that in compliance of the order of the Division Bench, the appointment of the third respondent has been protected and he has been adjusted against the point meant for OBC and at most the petitioner can seek review of the earlier Division Bench order and he ought not to have filed the O.A. 9. One has to see the background of facts which led the Division Bench to pass an order protecting the appointment of the third respondent. The Division Bench while passing the order it is of the considered opinion that the third respondent is not eligible to be appointed under the sports quota and dismissed the writ petition as such. However, on the affidavit filed by the official respondents to the effect that there are "16 posts of Draughtsman are vacant", has not interfered with the appointment of the third respondent. Taking advantage of such observation made by the Division Bench, though the third respondent had secured less marks than that of the petitioner, has chosen to continue in the said post. The official respondents have not brought to attention of the Division Bench the material fact that the petitioner who had secured more marks than that of the third respondent was the first person in the waiting list and he has to be appointed in the said vacancy. If the Department would have brought those facts to the Division Bench, the Division Bench could not have accommodated the third respondent in the said post. Moreover, the petitioner was neither a party before the Tribunal nor before the Division Bench and he was kept in dark and away from those proceedings and therefore, one cannot find fault on the petitioner in not approaching the Court at that time. 10. Moreover, the petitioner was neither a party before the Tribunal nor before the Division Bench and he was kept in dark and away from those proceedings and therefore, one cannot find fault on the petitioner in not approaching the Court at that time. 10. On the facts on record, we can also go to the extent of stating that a fraud has been played by the Respondents 1 and 2 on the part of the petitioner. The petitioner was all along under the impression that the third respondent was appointed under the sports quota. Once he came to know that the third respondent was adjusted against the quota meant for OBC, immediately he had approached the Tribunal challenging the appointment of the third respondent. One cannot expect that a person, who is not party before the Tribunal or the High Court, could file a Review to challenge the observation made by the Division Bench. Further, at this juncture, we want to make it clear that this Court is not travelling beyond what the earlier Division Bench has observed in the case of third respondent. The protection given to the third respondent was based on the affidavit filed by the official respondents stating the vacancy position and in the absence of the material fact that the petitioner that had secured more marks than the third respondent. If those facts could have been brought to the attention of the Division Bench, with respect, such an observation could not have been made by the earlier Division Bench. 11. For not appointing the petitioner in the place of the third respondent and not bringing the fact that the petitioner has secured more marks than that of the third respondent, the Respondents 1 and 2 have to blame themselves and they cannot shift the blame on the petitioner. Moreover, the selection and appointment of the third respondent is due to mistake / fraud played on the petitioner and the official respondents, who are expected to be as model employer and to follow fairness, ought not to have adopted such a tactics to protect the interest of the third respondent. 12. At this stage, the petitioner cannot be made to approach again this Court by way of Review Petition. In order to curtail the multiplicity of proceedings and to give a quietus to the matter, we deem it appropriate to dispose of the writ petition. 12. At this stage, the petitioner cannot be made to approach again this Court by way of Review Petition. In order to curtail the multiplicity of proceedings and to give a quietus to the matter, we deem it appropriate to dispose of the writ petition. The Tribunal, though considered that there was irregularity in the appointment, in view of the protection given by the order passed by the earlier Division Bench of this Court, has refused to interfere. 13. In view of our aforesaid discussion and taking into consideration the peculiar facts and circumstances of the case and in order to see that merit does not suffer, the order of the Tribunal is liable to be interfered with. Accordingly, for the reasons stated in the preceding paragraphs, the appointment of the third respondent is set aside and the respondents 1 and 2 are directed to appoint the petitioner in the place of the third respondent from the date of the appointment of the third respondent viz., 02.01.2007. It is made clear that the petitioner will not be entitled to any backwages, however, the period from 02.01.2007 till the date of assumption of duty shall be considered for all other purposes like seniority, pension, etc.. 14. With the above directions, the writ petition is allowed. No costs.