Bibhudatta Mohanty Vs. Union of India & Ors.
EmailAppeal: Civil Appeal Nos. 2266-2267 of 2002
(Arising out of SLP (C) Nos.1991-1992 of 2001)
(From the Judgment and Order dated 12.9.2000/3.11.2000 of the Orissa High Court in O.J.C. No. 8733/2000, C.R. No. 137 of 2000)
(Arising out of SLP (C) Nos.1991-1992 of 2001)
(From the Judgment and Order dated 12.9.2000/3.11.2000 of the Orissa High Court in O.J.C. No. 8733/2000, C.R. No. 137 of 2000)
Petitioner: Bibhudatta Mohanty
Respondent: Union of India & Ors.
Apeal: Civil Appeal Nos. 2266-2267 of 2002
(Arising out of SLP (C) Nos.1991-1992 of 2001)
(From the Judgment and Order dated 12.9.2000/3.11.2000 of the Orissa High Court in O.J.C. No. 8733/2000, C.R. No. 137 of 2000)
(Arising out of SLP (C) Nos.1991-1992 of 2001)
(From the Judgment and Order dated 12.9.2000/3.11.2000 of the Orissa High Court in O.J.C. No. 8733/2000, C.R. No. 137 of 2000)
Judges: SYED SHAH MOHAMMED QUADRI & S.N. VARIAVA, JJ.
Date of Judgment: Mar 20, 2002
Appearances:
Mr. Monoj K. Das, Mr. Sibo Sankar Mishra, Advocates for the Appellant.
Mr. Anoop Choudhary, Senior Advocate, Mr. Hemant Sharma, Mr. P. Parmeswaran, Mr. S.K. Das, Advocate for Mr. Ajay Choudhary, Advocate/Advocates with him for the Respondents.
Head Note:
SERVICE AND LABOUR LAW
Constitution
Articles 14, 16, 226 – Appointment – Setting aside of – Requisi-tion to employment exchange – No mention of giving preference to higher qualification – Candidate appointed on merits and being senior in age – Setting aside of appointment on grounds that person with higher qualification was not considered and appoint-ment was on extraneous consideration of seniority in age – Jus-tification. Held that setting aside of appointment on those grounds was bad in law. Considering the requisition, the appoint-ment was on merits and not merely on grounds of seniority in age. Orders of High Court set aside. Reinstatement with continuity in service ordered. (JT 1996 (8) SC 130) referred and relied upon.
Held:
As the basis of selection was in terms of requisition to the employment exchange, the selection authority has committed no illegality in not giving preference to SSC passed candidate. However, the preference clause for higher qualification does not mean that irrespective of fulfillment of other norms, SSC passed have to be preferred. Where any rule or guideline provide pref-erence in respect of some higher qualification, it only means that all other requirements being equal, a person possessing higher educational qualification will be preferred. It cannot, however, be considered as the sole criterion for preference in selection and appointment. When, the selection is on the basis of merit, merely because the seniority in age of the candidate is also taken into consideration, it would not be right to in-validate the selection. (Para 12, 14)
Cases Reffered:
1. Secretary (Health) Department of Health v. Dr. Anita Puri and Ors. (JT 1996 (8) SC 130) (Para 13)
2. Union of India & Ors.etc. v. N. Hargopal & Ors. etc. (A.I.R. 1987 SC 1227) (Para 3)
2. Union of India & Ors.etc. v. N. Hargopal & Ors. etc. (A.I.R. 1987 SC 1227) (Para 3)
JUDGEMENT:
SYED SHAH MOHAMMED QUADRI, J.
1. Leave is granted.
2. These appeals are from the judgment and order of the division bench of the High Court of Orissa at Cuttack in O.J.C. No. 8733 of 2000 dated September 12, 2000 and final order of November 3, 2000 in civil review no.137 of 2000, respectively.
3. The unsuccessful petitioner in the said O.J.C. and civil review is the appellant. He was temporarily appointed in the post of extra departmental mail carriers (for short, ‘the EDMC’) in the Sithalo branch post office, by the assistant superintend-ent of the post offices (I/C), Jagatsinghpur sub-division, Jagatsinghpur (for short, ‘respondent no.4’) on February 1, 1997. He worked on that post till September 3, 1997. He was again ap-pointed as a substitute in the said post for the period from May 9, 1998 to August 24, 1998 in Palasol branch post office. For filling up the post on permanent basis, respondent no.4 sent a requisition to the employment exchange to sponsor candidates having qualification of VIII standard passed for the post of EDMC. It may be mentioned that in the requisition to employment exchange, there was no mention that preference will be given to the candidates who has passed matriculation. The employment exchange accordingly sponsored 40 names having VIII class passed qualifi-cation and out of them only 13 candidates applied for the post. As the name of the appellant did not figure in the list of the candidates sponsored by employment exchange, he filed O.J.C.No.12733 of 1998 before the High Court for a direction to respondent no.4 to consider his candidature for the said post. Having regard to the judgment of this Court in Union of India & Ors.etc. v. N. Hargopal & Ors. etc. (A.I.R. 1987 SC 1227), a division bench of the High Court issued a direction to respondent no.4 to consider the case of the appellant on merit and in accor-dance with rules and thus disposed of the writ petition on Sep-tember 15, 1998. Respondent no.5 who was also aspiring for the post, having learnt that his name was not sponsored by the em-ployment exchange in response to the requisition of respondent no. 4, approached the Central Administrative Tribunal, Cuttack bench, Cuttack (for short, ‘the tribunal’) for a direction to consider his candidature for the said post. On January 28, 1999, the tribunal issued an interim direction to respondent no.4 to consider the candidature of respondent no. 5.
4. On February 2, 1999, after considering all the applicants, the fourth respondent selected and appointed the appellant as a EDMC, Palasol branch post office. He joined the post on February 4, 1999 and was working as such. While so, respondent no.5 ques-tioned the appointment of the appellant before the tribunal stating that inspite of being a SSC passed candidate, no prefer-ence was given to him. In the counter affidavit filed on behalf of respondent nos.1 to 4, it was averred that the appellant was selected on merit and he was senior in age.
5. By order dated August 18, 2000, the tribunal set aside the ap-pointment of the appellant by allowing O.A. No.227 of 1999. Aggrieved by the said order of the tribunal the appellant filed writ petition (O.J.C. No.8733 of 2000) which was dismissed on September 12, 2000. Then he filed review petition challenging the correctness of the said order but that was also dismissed on November 3, 2000. The said two orders are assailed in these appeals by special leave.
6. Mr.Manoj K.Das, the learned counsel appearing for the appell-ant, contended that the selection of the appellant was on the basis of merit and not merely on the ground of age; he fulfilled the requirement of residence; the requisition sent by respondent no.4 to the employment exchange did not specify that matriculates would be given preference, therefore, the tribunal and the High Court erred in setting aside his appointment.
7. Mr. Anoop Choudhary, the learned senior counsel appearing for the Union of India and the official respondents, submitted that the appointment of the appellant was on overall consideration of various factors but pursuant to the order of the tribunal, a fresh selection was made and respondent no.5 had been appointed.
8. Mr. Ajay Choudhary, the learned counsel appearing for respond-ent no.5, contended that the appellant was appointed on extrane-ous ground of seniority in age so his appointment was rightly quashed; that respondent no. 5 possessed higher secondary certifi-cate and had better qualification, so after the order of the tribunal he was appointed, therefore, his appointment ought not to be disturbed in these appeals. He further submitted that the requirement of residence was subsequently modified and it was not necessary to reside in the area of the post office.
9. A big fight is on for a small post of EDMC. The short question that arises for our consideration is : whether the impugned judgments and orders of the High Court confirming the order of the tribunal, quashing the appointment of the appellant, is unsustainable.
10. A perusal of the order of the tribunal shows that the ap-pointment of the appellant was set aside taking the view that he was selected solely on the ground that amongst all the candidates, he was the senior-most in age and that was an extraneous consid-eration. The High Court agreed with the reasoning of the tribun-al.
11. The relevant portion of the counter filed by respondent nos. 1 to 4 reads thus:
“Sri Bhibudatta Mohanty having essential qualification and senior in age from among all the candidates has been selected on merit and appointed to the post of EDMC, Palasol BO w.e.f. 4.2.99. In the requisition vide Annexure R-1 there was no mention regard-ing giving preference to candidates who have passed HSC examina-tion and also to the candidates belonging to the reserved commun-ity.”
(Emphasis supplied)
Those averments are attempted to be diluted in the counter affi-davit filed in the special leave petition, which are inconsistent so we are inclined to ignore them.
12. Admittedly in the requisition sent by respondent no.4 to the employment exchange, candidates having VIII class passed qualifi-cation were called for consideration and accordingly the employ-ment exchange sponsored as many as 40 candidates all VIII class passed. It is true that the guidelines contained in “method of recruitment” mentions that the minimum educational qualification is VIII passed and preference will be given to SSC passed. But the requisition did not specify that preference would be given to SSC passed candidates. Had the fourth respondent notified this condition, perhaps the employment exchange would have also spon-sored SSC passed candidates as well. As the basis of selection was in terms of requisition to the employment exchange, the selection authority has committed no illegality in not giving preference to SSC passed candidate-respondent no.5. However, the preference clause for higher qualification does not mean that irrespective of fulfillment of other norms SSC passed have to be preferred. Where any rule or guideline provide preference in respect of some higher qualification, it only means that all other requirements being equal, a person possessing higher educa-tional qualification will be preferred. It cannot, however, be considered as the sole criterion for preference in selection and appointment.
13. The tribunal did not properly appreciate the order of this Court in Secretary (Health) Department of Health v. Dr.Anita Puri and Ors. (JT 1996 (8) SC 130). Speaking for this Court Pattanaik,J. held :
“When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher quali-fied person automatically is entitled to be selected and appoint-ed.”
In that case the advertisement, calling applications from B.D.S., did mention that preference would be given to M.D.S. qualifica-tion. In the instant case, the requisition did not even mention that preference would be given to SSC passed candidates. There-fore, respondent no.5 could not have claimed any preferential treatment in selection.
14. Further, the tribunal is not right in ignoring the averment in the counter affidavit of the official respondents, extracted above, that the appellant was selected on merit and erred in holding that the selection was made solely on the ground that amongst all the candidates he was the senior-most in the age. It is thus clear that the selection of the appellant was on merit and not solely on the ground of being senior in age. It cannot be disputed that a selection solely on the basis of being senior in age is vitiated by extraneous consideration. But when, as in this case, the selection is on the basis of merit, merely be-cause the seniority in age of the candidate is also taken into consideration, it would not be right to invalidate the selec-tion.
15. Without properly examining the contents of the counter affi-davit, the High Court sustained the order of the tribunal. In the light of the above discussion, we are of the view that the selection of the appellant was wrongly set aside. Insofar as the selection of respondent no.5 is concerned, that is a consequen-tial action and it cannot stand as the impugned orders of setting aside the selection and the appointment of the appellant is held to be bad. Therefore, the selection of respondent no.5 automati-cally falls to the ground. The impugned orders of the High Court maintaining the order of the tribunal are set aside. The appellant shall be reinstated into service within one month from today with continuity of service. However, he will not be enti-tled to any pay for the period he remained out of service. The appeals are accordingly allowed. No costs.
1. Leave is granted.
2. These appeals are from the judgment and order of the division bench of the High Court of Orissa at Cuttack in O.J.C. No. 8733 of 2000 dated September 12, 2000 and final order of November 3, 2000 in civil review no.137 of 2000, respectively.
3. The unsuccessful petitioner in the said O.J.C. and civil review is the appellant. He was temporarily appointed in the post of extra departmental mail carriers (for short, ‘the EDMC’) in the Sithalo branch post office, by the assistant superintend-ent of the post offices (I/C), Jagatsinghpur sub-division, Jagatsinghpur (for short, ‘respondent no.4’) on February 1, 1997. He worked on that post till September 3, 1997. He was again ap-pointed as a substitute in the said post for the period from May 9, 1998 to August 24, 1998 in Palasol branch post office. For filling up the post on permanent basis, respondent no.4 sent a requisition to the employment exchange to sponsor candidates having qualification of VIII standard passed for the post of EDMC. It may be mentioned that in the requisition to employment exchange, there was no mention that preference will be given to the candidates who has passed matriculation. The employment exchange accordingly sponsored 40 names having VIII class passed qualifi-cation and out of them only 13 candidates applied for the post. As the name of the appellant did not figure in the list of the candidates sponsored by employment exchange, he filed O.J.C.No.12733 of 1998 before the High Court for a direction to respondent no.4 to consider his candidature for the said post. Having regard to the judgment of this Court in Union of India & Ors.etc. v. N. Hargopal & Ors. etc. (A.I.R. 1987 SC 1227), a division bench of the High Court issued a direction to respondent no.4 to consider the case of the appellant on merit and in accor-dance with rules and thus disposed of the writ petition on Sep-tember 15, 1998. Respondent no.5 who was also aspiring for the post, having learnt that his name was not sponsored by the em-ployment exchange in response to the requisition of respondent no. 4, approached the Central Administrative Tribunal, Cuttack bench, Cuttack (for short, ‘the tribunal’) for a direction to consider his candidature for the said post. On January 28, 1999, the tribunal issued an interim direction to respondent no.4 to consider the candidature of respondent no. 5.
4. On February 2, 1999, after considering all the applicants, the fourth respondent selected and appointed the appellant as a EDMC, Palasol branch post office. He joined the post on February 4, 1999 and was working as such. While so, respondent no.5 ques-tioned the appointment of the appellant before the tribunal stating that inspite of being a SSC passed candidate, no prefer-ence was given to him. In the counter affidavit filed on behalf of respondent nos.1 to 4, it was averred that the appellant was selected on merit and he was senior in age.
5. By order dated August 18, 2000, the tribunal set aside the ap-pointment of the appellant by allowing O.A. No.227 of 1999. Aggrieved by the said order of the tribunal the appellant filed writ petition (O.J.C. No.8733 of 2000) which was dismissed on September 12, 2000. Then he filed review petition challenging the correctness of the said order but that was also dismissed on November 3, 2000. The said two orders are assailed in these appeals by special leave.
6. Mr.Manoj K.Das, the learned counsel appearing for the appell-ant, contended that the selection of the appellant was on the basis of merit and not merely on the ground of age; he fulfilled the requirement of residence; the requisition sent by respondent no.4 to the employment exchange did not specify that matriculates would be given preference, therefore, the tribunal and the High Court erred in setting aside his appointment.
7. Mr. Anoop Choudhary, the learned senior counsel appearing for the Union of India and the official respondents, submitted that the appointment of the appellant was on overall consideration of various factors but pursuant to the order of the tribunal, a fresh selection was made and respondent no.5 had been appointed.
8. Mr. Ajay Choudhary, the learned counsel appearing for respond-ent no.5, contended that the appellant was appointed on extrane-ous ground of seniority in age so his appointment was rightly quashed; that respondent no. 5 possessed higher secondary certifi-cate and had better qualification, so after the order of the tribunal he was appointed, therefore, his appointment ought not to be disturbed in these appeals. He further submitted that the requirement of residence was subsequently modified and it was not necessary to reside in the area of the post office.
9. A big fight is on for a small post of EDMC. The short question that arises for our consideration is : whether the impugned judgments and orders of the High Court confirming the order of the tribunal, quashing the appointment of the appellant, is unsustainable.
10. A perusal of the order of the tribunal shows that the ap-pointment of the appellant was set aside taking the view that he was selected solely on the ground that amongst all the candidates, he was the senior-most in age and that was an extraneous consid-eration. The High Court agreed with the reasoning of the tribun-al.
11. The relevant portion of the counter filed by respondent nos. 1 to 4 reads thus:
“Sri Bhibudatta Mohanty having essential qualification and senior in age from among all the candidates has been selected on merit and appointed to the post of EDMC, Palasol BO w.e.f. 4.2.99. In the requisition vide Annexure R-1 there was no mention regard-ing giving preference to candidates who have passed HSC examina-tion and also to the candidates belonging to the reserved commun-ity.”
(Emphasis supplied)
Those averments are attempted to be diluted in the counter affi-davit filed in the special leave petition, which are inconsistent so we are inclined to ignore them.
12. Admittedly in the requisition sent by respondent no.4 to the employment exchange, candidates having VIII class passed qualifi-cation were called for consideration and accordingly the employ-ment exchange sponsored as many as 40 candidates all VIII class passed. It is true that the guidelines contained in “method of recruitment” mentions that the minimum educational qualification is VIII passed and preference will be given to SSC passed. But the requisition did not specify that preference would be given to SSC passed candidates. Had the fourth respondent notified this condition, perhaps the employment exchange would have also spon-sored SSC passed candidates as well. As the basis of selection was in terms of requisition to the employment exchange, the selection authority has committed no illegality in not giving preference to SSC passed candidate-respondent no.5. However, the preference clause for higher qualification does not mean that irrespective of fulfillment of other norms SSC passed have to be preferred. Where any rule or guideline provide preference in respect of some higher qualification, it only means that all other requirements being equal, a person possessing higher educa-tional qualification will be preferred. It cannot, however, be considered as the sole criterion for preference in selection and appointment.
13. The tribunal did not properly appreciate the order of this Court in Secretary (Health) Department of Health v. Dr.Anita Puri and Ors. (JT 1996 (8) SC 130). Speaking for this Court Pattanaik,J. held :
“When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher quali-fied person automatically is entitled to be selected and appoint-ed.”
In that case the advertisement, calling applications from B.D.S., did mention that preference would be given to M.D.S. qualifica-tion. In the instant case, the requisition did not even mention that preference would be given to SSC passed candidates. There-fore, respondent no.5 could not have claimed any preferential treatment in selection.
14. Further, the tribunal is not right in ignoring the averment in the counter affidavit of the official respondents, extracted above, that the appellant was selected on merit and erred in holding that the selection was made solely on the ground that amongst all the candidates he was the senior-most in the age. It is thus clear that the selection of the appellant was on merit and not solely on the ground of being senior in age. It cannot be disputed that a selection solely on the basis of being senior in age is vitiated by extraneous consideration. But when, as in this case, the selection is on the basis of merit, merely be-cause the seniority in age of the candidate is also taken into consideration, it would not be right to invalidate the selec-tion.
15. Without properly examining the contents of the counter affi-davit, the High Court sustained the order of the tribunal. In the light of the above discussion, we are of the view that the selection of the appellant was wrongly set aside. Insofar as the selection of respondent no.5 is concerned, that is a consequen-tial action and it cannot stand as the impugned orders of setting aside the selection and the appointment of the appellant is held to be bad. Therefore, the selection of respondent no.5 automati-cally falls to the ground. The impugned orders of the High Court maintaining the order of the tribunal are set aside. The appellant shall be reinstated into service within one month from today with continuity of service. However, he will not be enti-tled to any pay for the period he remained out of service. The appeals are accordingly allowed. No costs.
