Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK AFR W.P.(C) NO. 10406 OF 2020 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------------- Union of India and others ..… Petitioners -Versus- Tripati Kumar Anjangi and others ….. Opp. Parties For petitioners : Mr. D. Gochhayat, Central Government Counsel For opp. parties : M/s. Nirmal Ranjan Routray, J. Pradhan, T.K. Choudhury, and S.K. Mohanty, Advocates P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR. JUSTICE G. SATAPATHY Date of Hearing: 18.04.2024::Date of Judgment: 23.04.2024 DR. B.R. SARANGI, J. The Union of India and its functionaries have filed this this writ petition assailing the order dated 01.08.2019 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A No. 605 of 2012 under Annexure-1, by which direction has been Page 1 of 30 given to the present petitioners to review the result of opposite party no.1 ignoring the condition of the minimum qualifying marks for each subject, which is not mentioned in the notification dated 19.10.2010, and if the opposite party no.1 is otherwise found eligible, to appoint him against a vacant post of Postman, on the promotional quota of the GDS, as would be available at present, with consequential service benefits as per the provisions of law. 2. Brief facts of the case, as borne out from the records, are that opposite party no.l, as the applicant filed the Original Application contending before the Tribunal that he, while working as Grameen Dak Sevak (GDS), Badagumuda Branch Post Office, appeared in the Limited Departmental Competitive Examination (LDCE) held on 30.01.2011 by the Postal Department for promotion of Group-D (MTS) & GDS to the cadre of Postman for the vacancies of the years 2009 & 2010. The said LDCE was conducted in accordance with the guidelines stipulated in Letter No. RE/30-22/2009 dated Page 2 of 30 19.10.2010 of the Circle Office, Bhubaneswar. In the said examination, as many as 172 GDS employees and 2 Group-D (MTS) officials appeared, for filling up of the following vacancies pertaining to the year 2009 & 2010:- Year 2009 2010 Outsider Merit UR 04 01 Departmental UR 9 2 SC - 1 2.1. In accordance with the order contained in letter No. RE/23-2/2005 dated 24.02.2011 of the Regional Office, Berhampur, the result of the candidates in respect of LDCE held at Jeypore (K) Center was declared at Regional Office, Berhampur on 27.02.2011 vide SSPOs, Koraput Division, Jeypore (K) Memo No. B/2/ General - 8/Ch-III dated 27.02.2011. In the said examination, no departmental candidate came out successful, for which 11 UR vacancies and 01 SC vacancy, approved under departmental quota, were transferred to GDS merit quota and the community already declared as unchanged as per the instruction of Chief Postmaster General, Odisha. As such, result of the Page 3 of 30 examination was to be declared among the GDS merit quota for the total vacancy of UR-16 and SC-1. Out of 157 candidates appeared in the examination, 9 GDS belonging to OBC and 1 belonging to SC Category were qualified on merit without any relaxed standard and 4 GDS under UR vacancy were qualified. One GDS candidate under SC category was qualified under relaxed standard. Finally, a total of 15 GDS were declared qualified and two Postman Posts under UR community remained vacant. In later course, the vacant posts had been filled up by absorbing qualified candidates from neighboring division as per Regional Office, Berhampur (Gm) Memo No. RE/23-2/2005 dated 10.03.2011. 2.2. The opposite party no.1 belongs to OBC category and he was allowed to appear in the said examination. On perusal of the tabulation sheet, it was found that he had secured total 98 marks out of the maximum 150 marks in the said examination, i.e., Paper A-44 marks, Paper B- 20 Marks and Paper C-34 marks. The opposite party no.1, for having secured 20 marks in Page 4 of 30 Paper-B as against the qualifying marks 23, was not qualified in the said examination. As such, his claim for promotion to the cadre of Postman was not considered. Therefore, aggrieved by the same, he approached the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 605 of 2012. 2.3. Pursuant to the notice issued by the Tribunal, the present petitioners appeared and filed their reply stating inter alia that LDCE for promotion of Group-D (MTS) & GDS to the cadre of Postman for the vacancies of the years 2009 & 2010 was held on 30.01.2011 in accordance with the guidelines stipulated in the Circle Office, Bhubaneswar Letter No. RE/30-22/2009 dated 19.10.2010 and in pursuance of Regional Office Berhampur (Gm) Letter No. RE/23-2/2005 dated 21.10.2010. In the said examination, 172 GDS employees and 2 Group D (MTS) officials were allowed to appear for filling up of the vacancies pertaining to the years 2009 and 2010. The vacancy position, duly approved by the Postmaster General, Berhampur (Gm) Page 5 of 30 was circulated among all concerned vide SSPOs, Koraput Division, Jeypore (K) Letter No. B2/Gen-8/Ch-III dated 24.01.2011. It was further submitted that though opposite party no.1 had secured 98 marks, it was mandatory for a candidate to secure 45% qualifying marks in each paper to be declared successful in the examination. The opposite party no.1, having secured 20 marks in Paper B against the prescribed qualifying marks 23, i.e., 45% of total mark, was not qualified. Consequentially, his name was not included in the list of qualified candidates. As such, no illegality or irregularity was committed by the authorities in not including the name of opposite party no.1 in the list of successful candidates. 2.4. The Tribunal, without considering the same in its proper perspective, passed the impugned order on 01.08.2019 making the following observation at paragraph-8 thereof:- From the discussions above, it is clear that “8. there is no stipulation of the minimum qualifying mark in each paper in the vacancy notification Page 6 of 30 itself. There dated 19.10.2010 and no satisfactory reason has been furnished in the counter for not specifying such important criteria for qualifying the examination in the advertisement for the posts is no unambiguous rule produced before us through the pleadings, which specifies such minimum mark for each paper as the criteria for qualifying the examination in question. Further, it is not disputed that the respondent No. 4 to 9, who were selected in the test, had secured less aggregated marks than the applicant, who was declared fail'. No rule or circular has been furnished by the respondents in their pleading to support of the contention regarding minimum marks for each subject. In absence of such rules or circular, we are unable to accept the contentions of the respondents in this regard.” 2.5. By so observing, the Tribunal directed to review the result of opposite party no.1 ignoring the condition of the minimum qualifying marks for each subject, which is not mentioned in the notification dated 19.10.2010 for the post and, if opposite party no.1 is otherwise eligible, to appoint him against a vacant post of Postman against the promotional quota of the GDS, as would be available at present, with the consequential service benefits as per the provisions of law. Hence, this writ petition. 3.
Legal Reasoning
Mr. D. Gochayat, learned Central Government Counsel appearing for the petitioners vehemently Page 7 of 30 contended that Tribunal, having failed to appreciate the conditions stipulated in the Letter No. RE/30-22/2009 dated 19.10.2010 of the Circle Office, Bhubaneswar, has come to such a conclusion, which cannot be sustained in the eye of law. As such, the guidelines, for holding of departmental examination for promotion of Group- D/Mailman & GDS to Postman/ Mail-guard cadre for the vacancies of the years 2009 & 2010, stipulate the educational qualification under Clause-4. Sub-clause (1) of Clause-4 specifies that the educational qualification for appearing in departmental examination for promotion to Postman/Mail-guard cadre has been raised to matriculation standard for all EDAs, who are recruited on or after 25.09.1987, as envisaged under Directorate’s Letter No. 10-6/86-PCC/SPB-I dated 28.04.1988, but for EDAs (now GDS), who were in service on or before 25.09.1987, would be eligible to appear in the Postman/VPM/MG examination without obtaining matriculation qualification, as required vide Directorate’s Letter No. 60-62/92-SPB-I dated 22.12.1993. Therefore, Page 8 of 30 it is specifically urged that the guidelines dated 28.04.1988, which are applicable to opposite party no.1, where the qualifying mark in each paper has been fixed as 45% for other caste candidates and 30% for SC/ST candidates, as per the executive instruction dated 11.05.1989, have not been properly considered and, thereby, the finding arrived at by the Tribunal cannot be sustained. It is further contended that by misinterpreting the circular dated 17.11.1988, the Tribunal has come to such a finding, even though in the said circular the qualifying marks, as per the revised syllabus for departmental candidates for induction in the cadre of Postman/Village Postman/Mail guard, has been prescribed as 45%, and qualifying standard in respect of SC/ST for Promotion to the Post of Postman etc. has been prescribed as 30% in each paper. Thereby, the Tribunal has totally failed in appreciating minimum qualifying mark prescribed by the authority, as per the guidelines/ circulars issued, and passed the order impugned, which cannot be sustained in the eye of law. Page 9 of 30 4. Mr. N.R. Routray, learned counsel appearing for opposite party no.1, per contra, justified the order impugned passed by the Tribunal and contended the advertisement does not contemplate any minimum qualifying mark for each subject. The Tribunal is well justified in passing the order impugned, which does not warrant interference of this Court. It is further contended that the circular indicating fixation of minimum qualifying mark, which has been relied upon by the petitioners, was not placed before the Tribunal for consideration. For the first time, the same has been filed by the petitioners in the present case to justify their action. Therefore, the same cannot be taken into consideration. It is contended that the petitioners should have confined their argument to the materials available before the lower court, as such the petitioners cannot take advantage of the circular, which they had failed to produce before Tribunal. To substantiate his contention, learned counsel for opposite party no.1 has relied upon the judgments of the apex Court in the case of Page 10 of 30 Secretary to the Govt and Another v. M. Senthil