State of Orissa Vs. Rabindra Kumar Rath
Email(Arising out of S.L.P. (C) No. 3332 of 2001)
(Arising out of S.L.P. (C) No. 3332 of 2001)
Constitution
Articles 14, 16, 226 with Civil Procedure Code, 1908 – Section 11 and order 2 – Appointments – Merit list prepared by state public service commission – Respondent at sl. no. 34 – Posts available in general category only 24 – Plea of respondent that vacant seats reserved for SC/ST candidates be filled by general candidates – Tribunal rejecting application, noting that his name was not even in reserve list – On a review application, tribunal directing PSC to send names of 40 candidates – Then on another petition, tribunal directing appointment of ~4~ Challenge by state unsuccessful on grounds that order dated 17.7.95 of sending names of 40 persons was not impugned earlier – In appeal, held that second application was barred by constructive res judicata. Respondent should have taken all pleas available to him. Further, having found that his name was not even in reserve list, tribunal could not have directed his appointment. Also, the select list expired after one year and it was not extended. Hence, no relief could have been granted to him. (Para 5)
1. Special leave granted.
2. In the instant case, a merit list was prepared by the Orissa Public Service Commission in 1992. The respondent was at serial no. 34. The number of posts which were available in the general category were stated to be 24. When respondent was not appointed, he filed an application before the administrative tribunal being O.A. No. 498/93. This application was dismissed on merits. One of the contentions which was raised by the respondent which was dealt with by the tribunal was that the posts which had been reserved for scheduled caste and scheduled tribe candidates and which had not been filled should be filled by candidates belonging to the general category. While dismissing the application, the tribunal also noted that in the select list which was prepared, the name of the respondent did not even figure in the reserve list.
3. The respondent then filed an application for review and on 17th July, 1995, the Orissa Public Service Commission was directed to send the list of 40 selected candidates to the state government. No other relief was granted.
4. The respondent then moved yet another O.A. before the tribunal and by the order dated 25th September, 1997, the tribunal directed the appointment of the respondent against one of the vacancies which were available. The challenge of the appellant before the High Court was unsuccessful because, the High Court was of the view that the order dated 17th July, 1995 not having been challenged by the appellant herein, it was not open to impugn the order dated 25th September, 1997. Hence, this appeal by special leave.
5. Having heard the learned counsel for the parties, it appears to us that no relief could have been granted in law to the respondent. Firstly, on principle of constructive res judicata, the second application which was filed by the respondent before the tribunal which resulted in the passing of its order dated 25th September, 1997, was not maintainable. The select list having been prepared in 1992, all the contentions which could have been raised, ought to have been raised by the respondent in the first application which was decided by the tribunal on 18th April, 1995. On this ground alone, the tribunal ought not to have entertained the second application. Secondly, the finding in the order dated 18th April, 1995 being that the name of the respondent was not even in the reserve list, the tribunal could not now direct the appointment of the respondent who was, thus, not in the select list which was prepared by the public service commission. Even though the respondent may have qualified, but the list which was prepared was of 24 candidates against the general vacancies and 8 persons were put on the reserve list. With the name of the respondent missing, no relief could be granted to him. Thirdly, a select list is in operation only for a period of one year unless it is extended in accordance with law. There is nothing to show that the select list which was prepared in 1992 was ever extended beyond the period of one year and, therefore, in 1997, no relief could have been granted to the respondent. The High Court, in our opinion, was wrong in laying emphasis on the non-challenge to the order in review. The order in review was innocuous as it only required the public service commission to forward the list of 40 names to the state government : There was no direction to the government to appoint the respondent. This direction has only come now.
6. For the aforesaid reasons, this appeal is allowed and the impugned decision of the High Court and the order dated 25th September, 1997 of the administrative tribunal are set aside.
