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2024 DIGILAW 458 (CAL)

Bharati Bhushan Xess v. Union of India

2024-02-29

JAY SENGUPTA, MD.NIZAMUDDIN

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JUDGMENT : MD. NIZAMUDDIN, J. 1. Heard learned Advocates appearing for the parties. 2. By this writ petition, petitioner has challenged the impugned Order/Judgment of the Tribunal dated 21st February, 2023 dismissing the application of the petitioner and refusing to interfere with the impugned order of appointment of the private respondents dated 27th June, 2014, for the post of Group “D”. 3. Relevant facts involved in brief in this case are as hereunder. Office of the Deputy Commissioner, South Andaman District, issued employment notice dated 30th December, 2008 for appointment to Group D staff including the post of ‘Chainman’. It is the case of the petitioner that petitioner participated in the aforesaid selection process including written examination and interview and was appointed to the post of ‘Chainman’ by order dated 5th February, 2009. One alleged unsuccessful candidate named K. Nizamuddin, being private respondent no. 11 herein, challenged the petitioner’s appointment order dated 5th February, 2009 on the ground that the appointment of the petitioner herein on the basis of marks obtained in the interview by adding the same to the marks obtained in the written test was illegal and contrary to relevant recruitment rules/Regulations. 4. Learned Tribunal by the order dated 24th August, 2012, quashed the appointment of the petitioner by order dated 5th February, 2009 with a direction for re-advertisement for the aforesaid post. 5. The aforesaid order of the Tribunal dated 24th August, 2012, was challenged before this Court by writ petition being WP.CT No. 604 of 2012 and this Court by order dated 5th April, 2013 modified the aforesaid order of the Tribunal to the extent that order of the Tribunal for re-advertisement for the post-in-question was set aside and the appointing authorities were directed to proceed from the stage after the completion of the written test without interfering with the written test. The aforesaid order of this Court was further challenged before the Hon’ble Supreme Court which upheld the aforesaid order of this Court and dismissed the appeal being Civil Appeal Nos. 4255-58/2014 by order dated 2nd April, 2014. The aforesaid order of this Court was further challenged before the Hon’ble Supreme Court which upheld the aforesaid order of this Court and dismissed the appeal being Civil Appeal Nos. 4255-58/2014 by order dated 2nd April, 2014. After the order of the Hon’ble Supreme Court confirming the aforesaid order of this Court setting aside the order of the Tribunal for re-advertisement for appointment and granting liberty to the authorities to proceed after the stage of written test, the Assistant Secretary (Revenue), by the order dated 22nd July, 2013, terminated the service of the petitioner and issued order for appointment of nine candidates who are private respondents herein for the post of ‘Chainman’. The aforesaid order of appointment of the private respondents and termination of the petitioner’s service was challenged by the petitioner before the Tribunal and the learned Tribunal, on contest, after considering the affidavits by the parties and after taking into consideration the aforesaid earlier order of this Court and the Order of the Hon’ble Supreme Court and relevant recruitment rules/regulations, dismissed the application of the petitioner by the impugned order dated 21st February, 2023 which has been impugned by the petitioner, in this writ petition. 6. It appears from record that learned Tribunal while passing the impugned order dated 21st February, 2023, dismissing the application of the petitioner, has elaborately discussed and considered the arguments of the parties and passed reasoned and speaking order as appears to us on perusal of the impugned order. 7. The question of law and the main issue arising in this case according to us are as to whether the impugned order of the learned Tribunal rejecting the contention of the petitioner that the appointment of the petitioner by taking into consideration marks obtained by him both in the written test and in the interview and on the basis of which he was declared successful and appointing the private respondents by taking into consideration the marks obtained by them only in the written test which were higher than the marks obtained by the petitioner in written test for appointment of Group “D” are legal and valid or not as per relevant recruitment rules and regulations. In view of the “Andaman and Nicobar Administration Establishment of the Deputy Commissioner Group ‘D’ Recruitment Rules, 2001”, on perusal of which we find that there is no reference at all for holding interview for the purpose of appointment of Group “D” staff and it requires only written test for such appointment. The aforesaid Recruitment Rules/ Regulation describes the method of recruitment, age limit, qualification and other matters stipulated in the schedule of the said Rules and according to which the essential qualification are as hereunder : 1. Middle School (8th Pass); Further desirable skills are i. Training in basic and refresher course in Home Guard and Civil defence; ii. Knowledge in Hindi; iii. Cycle riding.” And 2. Should qualify in the written examination to be conducted by the Department/Administration.” be offered appointment to the post of Group ‘D’. 8. On perusal of the aforesaid rules for appointment it clearly appears that it prescribes only for the written examination for filling up the post of Group D in the establishment of Deputy Commissioner, Andaman and Nicobar Administration and there is no provision or condition stipulated in the aforesaid Recruitment Rules for conducting any viva-voce test in addition to the written examination. 9. In view of the aforesaid legal position as emerges from the aforesaid Rules/Regulations we are of the considered view that for appointment in the post of Group “D”, viva-voce in addition to the written examination conducted by the Administration, is in patent contravention of the aforesaid Recruitment Rules/ Regulations and the merit list published declaring the petitioner successful and appointing him by adding the marks obtained by him in viva-voce to the marks obtained by him in the written test which is lower than the marks obtained by private respondents in written test which are matters of record, is certainly not sustainable in law, in view of the aforesaid Recruitment Rules/Regulations such appointment for Group “D” post was beyond the scope and ambit of the aforesaid Rules and appointment of the private respondents only on the basis of marks obtained by them in the written test which are higher than the petitioner is very much legal and valid. 10. 10. It is also matter of record and is very much relevant that the recruitment proceeding up to the stage of written test has not been interfered by this Court in earlier writ proceeding as appears from the order of this Court dated 5th April, 2013 in WP.CT No. 604 of 2012 and which was further upheld by the Hon’ble Supreme Court. 11. Considering the facts and circumstances of the case as appears from record, submissions of the parties, taking into consideration the relevant recruitment Rules/Regulations, the earlier order of this Court dated 5th April, 2013 and the order of the Hon’ble Supreme Court dated 2nd April, 2014 we are of the considered view that termination of the petitioner’s appointment on the basis of marks obtained by him in the written test which is lower than the marks obtained by the private respondents who had obtained higher marks in the written test which was the only criteria for appointment of Group “D” staff in question and excluding the marks obtained by him in interview, and appointment of the private respondents only on the basis of written test is very much legal and valid and does not require any interference. 12. In view of the discussion made above, we are not inclined to interfere with the aforesaid impugned order of the Tribunal and accordingly, this writ petition being WP.CT/18/2023 is dismissed. 13. Urgent Photostat certified copy of the judgment, if applied for, be supplied to the parties upon compliance of all legal formalities. JAY SENGUPTA, J. - I agree.