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2013 DIGILAW 410 (ORI)

Bijay Mishra v. Union of India

2013-09-24

BISWAJIT MOHANTY, PRADIP MOHANTY

body2013
JUDGMENT BISWAJIT MOHANTY, J. : This writ application has been filed by three petitioners with a prayer to set aside/modify/review/recall the order dated 21.12.2012 passed by this Court in W.P.(C) Nos.24106 and 24325 of 2011. 2.Shortly stated the undisputed facts are as follows : The Government of Orissa in General Administrative Department vide its letter dated 17.7.2010 called for nomination of Non-State Civil Service Officers for consideration for appointment to two posts of Indian Administrative Service for the year 2010 in accordance with the Indian Administrative Service (Appointment by Selection) Regulations, 1997 (in short “1997 Regulations”). Initially, 10 names including the names of the present petitioners and opposite party Nos.6 to 8 were sent by the G.A. Department for consideration of their case. However, on 25.10.2010, the Government in G.A. Department decided to exclude the name of Niranjan Sethi from the eligibility list of 10 names recommended earlier in view of some vigilance investigation against him. Accordingly, on 9.11.2010 the Selection Committee held its meeting and interviewed 9 officers including the present petitioners and opposite party Nos.7 and 8. On 15.11.2010 said Niranjan Sethi submitted a representation against deletion of his name and not calling him to appear in the interview board. Later on niranjan Sethi filed O.A. No.718 of 2010 before the Central Administrative Tribunal, Cuttack Bench, Cuttack with prayer to declare the Selection Committee meeting held on 9.11.2010 for appointment to IAS as per 1997 Regulations as illegal, arbitrary and ab initio void and prayed for conducting the selection afresh. There also Niranjan Sethi made an alternative prayer so as to direct the official respondents to consider his case for appointment to IAS as per 1997 Regulations against two vacancies. O.A. No.718 of 2010 was disposed of on 22.10.2010 with a direction to the UPSC to consider the points raised in the petition dated 15.11.2010. On 19.1.2011 the representation filed by Niranjan Sethi was rejected. O.A. No.718 of 2010 was disposed of on 22.10.2010 with a direction to the UPSC to consider the points raised in the petition dated 15.11.2010. On 19.1.2011 the representation filed by Niranjan Sethi was rejected. Challenging the same, Niranjan Sethi filed O.A. No.33 of 2011 before the Tribunal with the following prayers : “(i) To declare the Selection Committee meeting held on 9th November, 2010 for appointment to IAS in terms of “Indian Administrative Service (Appointment by Selection) Regulations, 1997” as illegal, arbitrary and ab initio void being contrary to the Regulation and direct the Respondent to conduct selection afresh; (ii) To quash the order of rejection under Annexure-A/6 on 19th January, 2011 being contrary to the Rule, law and without due application of mind; (iii) And/or to direct the Respondents to consider the case of the Applicant for appointment to IAS as per “Indian Administrative Service (Appointment by Selection) Regulations, 1997” against the two vacancies of IAS 2010; and (iv) to pass any other order/orders as deemed fit and proper.” O.A. No.33 of 2011 was filed on 23.1.2011 before the Tribunal. On 27.4.2011, the present petitioners filed O.A. No.236 of 2011 before the Central Administrative Tribunal, Cuttack Bench, Cuttack with the following prayers : “(i) To declare the Selection Committee Meeting held on 9th November, 2010 for appointment to IAS in terms of Indian Administrative Service (Appointment by Selection) Regulations, 1997 as ab initio void, illegal arbitrary being done malafide. (ii) to direct the Respondents to conduct the selection afresh by 10 candidates who names were already in the list at Annexure-A/1. (iii) to pass any other order/orders as deemed fit and proper.” Though the petitioners in O.A. No.236 of 2011, who are also the petitioners here made a prayer to declare the Selection meeting held on 9.11.2010 as ab initio void and illegal, they did not make all official candidates who have appeared in the interview along with them as parties to the case. It is important to note here that the 9 recommended officers included the three petitioners in O.A. No.236 of 2011 and in the writ application. These three petitioners in O.A. No.236 of 2011 only made three officers as opposite parties besides the official opposite parties. Thus, four recommended officers were left out from O.A. No.236 of 2011. O.A. No.33 of 2011 filed by Niranjan Sethi was disposed of by the Tribunal on 22.6.2011. These three petitioners in O.A. No.236 of 2011 only made three officers as opposite parties besides the official opposite parties. Thus, four recommended officers were left out from O.A. No.236 of 2011. O.A. No.33 of 2011 filed by Niranjan Sethi was disposed of by the Tribunal on 22.6.2011. In the said Original Application, none of the 9 recommendees including the present three petitioners were initially made parties. Later on Pradeep Kumar Biswal and Gopabandhu Satpathy two out of 9 recommendees intervened. Still rest 7 recommended officers were not made parties. Challenging the order dated 22.6.2011 rendered in O.A. No.33 of 2011; W.P.(C) Nos.24325 and 24016 of 2011 were filed by Gopabandhu Satpathy (opposite party No.7) and Pradeep Kumar Biswal (opposite party No.8) respectively. In the meantime, on 9.8.2011, O.A. No.236 of 2011 filed by the present petitioners was disposed of by the Tribunal. The Tribunal held that the same has become infructuous in view of the disposal of O.A. No.33 of 2011 and respondent Nos.1 and 2 were directed to conduct selection within the period as directed in O.A. No.33 of 2011. In W.P.(C) No.24325 of 2011 and W.P.(C) No.24016 of 2011 which were filed against the order dated 22.6.2011 passed by the Tribunal in O.A. No.33 of 2011, the present petitioners did not implead themselves as parties. Ultimately on 21.12.2012, this Court pronounced its judgment under Annexure-4. By the said judgment this Court held that the direction of the Tribunal to set aside the entire selection held on 9.11.2010 is not proper and the interest of Niranjan Sethi will be protected by directing the UPSC to consider the case of Niranjan Sethi alone. Thereafter, the Selection Committee should publish the result of selection that was held on 9.11.2010 along wiht the result of selection of Niranjan Sethi and accordingly, make necessary recommendations. It was also made clear that this course was being adopted as the same would not cause any prejudice and harassment to the parties. Challenging the same, the present writ application has been filed. 3.Mr. Bijan Ray, learned Senior Advocate for the petitioners submitted that under the fact and circumstances, the petitioners are necessary and proper parties to W.P.(C) Nos.24106 and 24325 of 2011. Challenging the same, the present writ application has been filed. 3.Mr. Bijan Ray, learned Senior Advocate for the petitioners submitted that under the fact and circumstances, the petitioners are necessary and proper parties to W.P.(C) Nos.24106 and 24325 of 2011. Since they were not made parties, they are going to suffer irreparable loss and injury for eternity by the judgment under Annexure-4 of this Court as there would be no uniformity in the matter of selection. Secondly, he submitted that this Court’s direction to consider the case of opposite party No.6 (Niranjan Sethi) alone is an error apparent on face of record. Lastly, he submits that since the order dated 9.8.2011 passed in O.A. No.236 of 2011 still holds the fields, the same runs contrary to the order passed by this Court confining the selection to consider the case of Niranjan Sethi (opposite party No.6) only. Thus, there exists two contradictory orders in the field. 4.Mr. S.K. Padhi, learned Senior Advocate for opposite party No.7 submitted that the present petitioners are neither necessary nor proper parties in W.P.(C) Nos.24106 and 24325 of 2011. Since in those writ applications order passed by the Tribunal in O.A. No.33 of 2011 was under challenge he had impleaded only those persons who were already before the Tribunal. Secondly, he submitted that the direction of the Tribunal in O.A. No.236 of 2011 has to be read in toto and it cannot be read confining the order to a particular direction as has been interpreted by the petitioners in this case in their written submission. According to the petitioners, the order dated 9.8.2011 passed by the Tribunal in O.A. No.236 of 2011 meant that Respondent Nos.1 and 2 are duty bound to conduct the selection. However, Mr. Padhi, learned Senior Advocate invited our attention to the last sentence of the order of the Tribunal in O.A. No.236 of 2011 which reads like thus : “Hence while disposing of this O.A. holding that this O.A. has been made infructuous, Respondent Nos.1 and 2 are hereby directed to conduct the selection within the period as directed in O.A. No.33 of 2011. No costs.” Thus, Mr. S.K. Padhi, learned Senior Counsel took exception to the limited interpretation given by the petitioners to the direction given by the Tribunal in O.A. No.236 of 2011. No costs.” Thus, Mr. S.K. Padhi, learned Senior Counsel took exception to the limited interpretation given by the petitioners to the direction given by the Tribunal in O.A. No.236 of 2011. He further submitted that since O.A. No.236 of 2011 was rendered infructuous, and since the direction contained in O.A. No.33 of 2011 has been modified by this Court while rendering its judgment under Annexure-4, the question of two inconsistent orders operating in the same field does not arise. The order passed in O.A. No.236 of 2011 was not an independent order but an order that depended on the order passed in O.A. No.33 of 2011. Thus, once that order is modified; it should be treated that the latter order passed in O.A. No.236 of 2011 also stands modified accordingly. Lastly, he contended that it is not correct to say that this Court vide its judgment under Annexure-4 directed to consider the case of opposite party No.6 (Niranjan Sethi) alone as that would be a wrong reading of the directions issued by this Court under Annexure-4. In the facts and circumstances of the case and in the light of the alternative prayer made by opposite party No.6 in his O.A. No.33 of 2011, this Court committed no error in directing to consider his case and publish the result taking into account the result of 9.11.2010 selection along with the result of selection relating to opposite party No.6 (Niranjan Sethi). 5.In such background we have to see whether the prayer as made by the petitioners in this writ application merits acceptance. 6.The main contention of the petitioners is that in the background of facts narrated above, they are necessary and proper parties to both the writ applications. In this context, certain facts are to be noted. In W.P.(C) Nos.24106 and 24325 of 2011 the order dated 22.62011 passed in O.A. No.33 of 2011 was challenged. In that Original Application, the present petitioners were not parties. So in a certiorari proceeding they were not required to be made parties in the above noted two writ applications. Secondly, in the judgment under Annexure-4 no order has been passed against the petitioners rather the direction has been to consider the case of opposite party No.6 and publish the result of all candidates including the present petitioners taking into account earlier selection dated 9.11.2010 and the selection relating to opposite party No.6. Secondly, in the judgment under Annexure-4 no order has been passed against the petitioners rather the direction has been to consider the case of opposite party No.6 and publish the result of all candidates including the present petitioners taking into account earlier selection dated 9.11.2010 and the selection relating to opposite party No.6. Thus, they cannot claim that they are going to be prejudiced. Further as indicated earlier in O.A. No.236 of 2011 filed by the present petitioners praying for quashing of the entire selection they themselves did not make all 9 recommendees as parties. In fact in the said O.A. they have left out four recommendees. In such view of the matter even if they are heard on merits, the entire selection cannot be quashed. Further, the very fact that the petitioners are highly placed officials and are highly educated persons who know knew tit bit about O.A. No.33 of 2011 proceeding and the very fact that the order passed in O.A. No.236 of 2011 was in the background of order passed in O.A. No.33 of 2011; in ordinary course of human conduct they are expected to know about the two writ applications which have been disposed of under Annexure-4. Accordingly, if so desired, they should have intervened in those two writ applications. For all these reasons it cannot be said that disposal of the above noted two writ applications in absence of the petitioners has caused any prejudice to the petitioners. So far as the decision of the Apex Court reported in AIR 1963 SC 1909 (Shivdeo Singh v. State of Punjab) is concerned, in that case though a writ application was filed by ‘A’ for cancellation of the order of allotment passed by the Director of Rehabilitation in favour of ‘B’, the High Court cancelled the order in favour of ‘B’ though he was not a party to the writ proceedings. Subsequently ‘B’ filed a petition under Article 226 of the Constitution of India for impleading him as a party to ‘A’s writ petition and rehearing the whole matter. Accordingly, the High Court reviewed its previous order at the instance of ‘B’ who was not a party to the previous proceedings. In such background the apex Court held that the High Court has power under Article 226 of the Constitution of India to review its own order. In the present case, the facts are little different. Accordingly, the High Court reviewed its previous order at the instance of ‘B’ who was not a party to the previous proceedings. In such background the apex Court held that the High Court has power under Article 226 of the Constitution of India to review its own order. In the present case, the facts are little different. Both the writ applications disposed of vide common judgment under Annexure-4 relate to certiorari proceedings challenging the order passed by the learned Tribunal in O.A. No.33 of 2011. Therefore, there was no question of petitioners of the two writ applications impleading others as parties in those writ applications, who were not parties before the Tribunal. There is no dispute that while exercising the power under Article 226 of the Constitution of India, the Court can review its own order, but here the facts being totally different do not warrant a review of the judgment under Annexure-4 so as to uphold the order dated 22.11.2010 passed by the Tribunal quashing the entire selection. As indicated earlier the petitioners themselves did not make all recommendees, who have undergone the process of selection as parties. In such background the entire selection cannot be set aside at their behest. In AIR 2002 SC 834 (The State Financial Corporation and another v. M/s. Jagdamba Oil Mills and another) Hon’ble Supreme Court has made it clear that the Court should not place reliance on decisions without discussing as to how the factual situation fits in with the facts situation of the decision on which the reliance is placed. Observations of Courts are not to be read as Euclid’s theorems nor as provisions of the statute. These Observations must be read in the context in which they appeared. Circumstantial flexibility, one additional or different fact may make a world of difference between the conclusions in two cases. Each case depends on its own facts and a close similarly between one case and another is not enough became even a single significant detail may alter the entire aspect. 7.In such background we humbly hold that on account of totally different factual situation, Shivdeo Singh’s Case (supra) has no application to the present case. Each case depends on its own facts and a close similarly between one case and another is not enough became even a single significant detail may alter the entire aspect. 7.In such background we humbly hold that on account of totally different factual situation, Shivdeo Singh’s Case (supra) has no application to the present case. 8.So far as the contention relating to two inconsistent orders one of this Court under Annexure-4 and other of Tribunal dated 9.8.2011 passed in O.A. No.236 of 2011 is concerned, we find that the question of inconsistent orders being operating in the same field does not arise. As rightly submitted by Mr. S.K. Padhi, learned Senior Counsel that the Tribunal has declared O.A. No.236 of 2011 infructuous and thereafter has issued an order while referring to the order passed in O.A. No.33 of 2011 and once the order in O.A. No.33 of 2011 got modified by the judgment under Annexure-4, it would automatically modify the order passed in O.A. No.236 of 2011. 9.Regarding the contentions of Mr. Ray, learned Senior Counsel for the petitioners that the direction under Annexure-4 passed by this Court to UPSC to consider the case of Niranjan Sethi (opposite party No.6) alone, is an error apparent on the face of record; we can only say that this submission is based on a wrong reading of direction contained under Annexure-4. In the background of alternative prayer made by Niranjan Sethi, such a direction cannot be faulted as he was illegally deprived of being considered by the selection committee. Further the direction of this Court under Annexure-4 does not end at directing the UPSC to consider the case of opposite party No.6 alone. The direction makes it clear that the result of selection held on 9.11.2010 in which the present petitioners participated and the result of selection in respect of opposite party No.6 shall be published together. Therefore, while passing the impugned judgment under Annexure-4, the Court has been taken caret of see that no prejudice is caused to any of the parties. 10.For all these reasons, the writ application is without any merit and the same is accordingly dismissed. No costs. PRADIP MOHANTY, ACJ :I agree. Application dismissed.