High Court
Case Details
WP(C) 2059/2012 BEFORE THE HON’BLE MR.JUSTICE I.A. ANSARI THE HON’BLE DR.(MRS) JUSTICE INDIRA SHAH Pursuant to the requisition, dated 25.07.2005, of 132 Station Health Organisatio n (L), given to the Employment Exchange, Guwahati, the said Exchange sponsored a list of 20 (twenty) candidates, which included the name of the present petition er for selection and appointment to the post of Driver/MT. 2. Following the sponsorship of the names of the candidates, as indicated h ereinbefore, the respondent/authority concerned, on 02.08.2005, issued letters c alling the candidates for interview and the candidates were also advised to brin g all original certificates, along with driving licenses, for production before the Interview Board. The petitioner, too, received a letter for interview. The l etter, dated 02.08.2005, aforementioned, was, however, silent as to what certifi cates, in original, the candidates were required to be taken to, and produced at , the interview. By a subsequent letter, dated 07.08.2009, respondent No.5 herein request 3. ed the petitioner to furnish his experience certificate of driving heavy vehicle for a period of two years. This requirement was, admittedly, not indicated, whi le the petitioner was called for interview nor was this requirement indicated to the said Employment Exchange. 4. Be that as it may, the petitioner submitted an experience certificate of driving heavy vehicle, the certificate having been issued on 15.08.2009. The ce
Legal Reasoning
15. For the purpose of clarifying the position of law, one may take note of sub-Section (3) of Section 22 of the Administrative Tribunal’s Act, 1985, which contains the procedure and power of the Central Administrative Tribunal. Sub-Se ction (3) of Section 22 reads as under: (cid:28)22. (1) (2) (3) A Tribunal shall have, for the purposes of discharging its functions under t his Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following m atters, namely : (a) Summoning and enforcing the attendance of any person and examining him on oa th; **** **** **** **** **** **** (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) subject to the provisions of section 123 and 124 of the Indian Evidence Act , 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office; **** **** **** (cid:29) 16. On a bare reading of Clause (c) of sub-Section (3) of Section 22, it bec omes clear that the Central Administrative Tribunal has the power to receive evi dence on affidavits and it has also the power to requisition any public record o r document or any copy of such record or document from any office and that it ha s also the power to summon and enforce attendance of any person and examining hi m on oath. There is, thus, no impediment in determining and settling the disput ed questions of fact by the learned Tribunal by taking recourse to it powers as embodied in sub-Section (3) of Section 22. Before parting with the record of this writ petition, we make it clear t 17. hat in the facts and attending circumstances of the present case, the decision, on the eligibility or otherwise of the petitioner, needs to be arrived at by the learned Tribunal at the earliest and in order, therefore, avoid any delay in fi nal determination of the questions raised by the authorities concerned, we direc t both the parties to the OA to appear in the learned Tribunal on 17.06.2013, wh ereupon the learned Tribunal shall deal with the matter in accordance with law. 18. nd disposed of. 19. With the above observations and directions, this writ petition shall sta
Arguments
rtificate reads as under: (cid:28)This is to certify that Shri Binod Baran, son of Parikshit Barman, an inhabitan t of Village-Satgaon, PO. Udayan Vihar in the District of Kamrup (Assam). It is certified that Sri Biond Barman has been driving heavy vehicle in our tran sport company since last February, 2007. To the best of our knowledge, he is an expert and well trained driver. Moreover, we know nothing wrong against him. (cid:29) (Emphasis is added) From a bare reading of the certificate, dated 15.08.2009, what transpire 5. s is that the petitioner had given an experience certificate of two years commen cing from the month of February, 2007. After submission of the certificate, as h ad been directed, since the petitioner was not appointed to the post for which h is name had been sponsored, he made an Original Application (in short, OA) in th e Central Administrative Tribunal, Guwahati Bench, which gave rise to OA No.25/2 011, wherein it was contended, inter alia, by the petitioner that the advertisem ent, which required the Employment Exchange to sponsor the names, had not mentio ned that two years of experience was required and, at any rate, when the petitio ner had already given the experience certificate of two years of experience, he ought to have been selected and appointed. 6. The respondents contested the OA by contending to the effect, inter alia , that the experience certificate, which the petitioner had produced, showed tha t his experience commenced in the year 2007; whereas the names were required to be sponsored as far back as on 25.07.2005 and inasmuch as the petitioner had not been able to produce any experience certificate showing that the petitioner had , on the date of making of the application, requisite experience of two years o f driving of heavy vehicle, the petitioner was not eligible to be appointed. The learned Tribunal agreed with the contention of the respondents and, with the co nclusion, so reached, the learned Tribunal dismissed the OA by its order, dated 26.03.2012. Aggrieved by the dismissal of his OA, the petitioner is before us with t 7. he present application, made under Article 226 of the Constitution of India, see king issuance of appropriate writ(s). 8. We have heard Ms. U. Dutta, learned counsel, for the petitioner, and Mr. S. Baruah, learned Central Govt. Counsel, for the respondents. 9. While considering the present writ petition, it needs to be noted that n otwithstanding the fact that the respondents had not mentioned, while requesting the Employment Exchange, Guwahati, to sponsor the names of the candidates that experience of driving heavy vehicle, for a period of, at least, two years, was a n essential qualification for appointment to the post of Driver/MT and though ev en the letter, dated 02.08.2008, calling for interview had not specifically ment ioned the requirement of production of experience certificate of two years, the learned Tribunal was, in our considered view, correct in holding that when the r elevant recruitment rules required, as a condition of eligibility for recruitmen t to the post of Driver/MT, two years of experience of driving of heavy vehicle, the respondents were not wrong, when they asked the petitioner to submit experi ence certificate. Even this requirement had not been indicated, while inviting t he said Exchange to sponsor the names of the candidates. Appearing on behalf of the petitioner, Ms. U. Dutta, learned counsel, po 10. ints out that it escaped the attention of the learned Tribunal that by its lette r, dated 02.08.2008, the respondents had asked for experience certificate of two years and the petitioner had accordingly given experience certificate from the person, whose vehicle he was driving, and when the respondents had, thus, never indicated to the petitioner that they required experience certificate of two yea rs of driving heavy vehicle as on 25.07.2005, the respondents cannot make the pe titioner suffer for their lapse. 11. We, therefore, find considerable force in the submission, made on behalf of the petitioner, that when experience certificate of two years had not been c alled for as on the date of making of the requisition to the Employment Exchange , the petitioner was not required to submit experience certificate even if he ha d the requisite experience as on 25.07.2005. Resisting this writ petition, Mr. Baruah, learned CGC, however, points o 12. ut that it has, now, come to the notice of the respondents that the petitioner d oes not hold a licence to drive heavy vehicle and, in such circumstances, the pe titioner is, at any rate, not eligible for recruitment to the post of Driver/MT. This assertion of the respondents is denied vehemently by the petitioner. 13. The submissions, so made on behalf of the respondents, gives rise to a d isputed question of fact, which cannot be decided, for the first time, in this w rit petition made under Article 226, calls for, if the Court is satisfied, a wri t in the nature of certiorari. At the same time, the ground of resistance, if tr ue, has to be taken into account so that an effective decision can be reached. 14. Considering, therefore, the matter in its entirety and in the interest o f justice, the impugned order, dated 26.03.2012, passed by the learned Tribunal, is hereby set aside and the proceeding is remanded to the learned Tribunal for a decision in accordance with law and after recording, if required, necessary ev idence, in terms of the provisions of Section 22 of the Administrative Tribunals Act, 1985, for the purpose of determination of disputed question of fact.