Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.35330 of 2020 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 --------------- 1. Ramesh Chandra Behera Aged about 42 years Son of Late Duryadhan Behera At: Subalaya, P.O.: H.Burudi Via: Humma – 761 027 District: Ganjam 2. Bhagirathi Das Aged about 32 years Son of Yudhistir Das At: Bhagirathipur, P.O.: Rukunigaon, P.S.: Chhatrapur, District: Ganjam 3. Dillip Kumar Sahu Aged about 37 years Son of Udayanath Sahu At/P.O.: Munispenth P.S.: Chhatrapur District: Ganjam … -VERSUS- 1. Union of India represented through Secretary, Department of Posts Shastri Bhawan, New Delhi 2. Chief Post Master General Odisha Circle, Bhubaneswar At/P.O.: PMG Square, Bhubaneswar District: Khordha Petitioner W.P.(C) No.35330 of 2020 Page 1 of 100 3. Post Master General Berhampur Region, Berhampur At/P.O.: Berhampur, District: Ganjam 4. Senior Superintendent of Post Offices Berhampur Division, Berhampur At/P.O.: Berhampur, District: Ganjam 5. Assistant Superintendent of Posts Chhatrapur Sub-Division, Chhatrapur At/P.O.: Chhatrapur, District: Ganjam 6. Miss Sunita Sethi GDS MD, Sankuda Branch Office Sankuda, At/P.O.: Sankuda, District: Ganjam 7. Rakesh Kumar Sahu GDS MC, Paladhuapali Branch Office Paladhuapali, At/P.O.: Paladhuapalli District: Ganjam … Opposite parties Counsel appeared for the parties in the writ appeals: For the Petitioner : M/s. Sukanta Kumar Dalai, Satyabrata Mahapatra and P.N. Swain, Advocates For the Opposite parties : Mr. Prasanna Kumar Parhi Deputy Solicitor General of India, Orissa High Court and Mr. Chandrakanta Pradhan, Senior Panel Counsel Government of India for Opposite party Nos.1 to 5. P R E S E N T: THE HONOURABLE ACTING CHIEF JUSTICE DR. B.R. SARANGI AND THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 24.11.2023 :: Date of Judgment : 30.11.2023 W.P.(C) No.35330 of 2020 Page 2 of 100 MURAHARI SRI RAMAN, J.— THE CHALLENGE: J UDGMENT Beseeching issue of writ of certiorari invoking provisions of Articles 226 and 227 of the Constitution of India, the petitioners, applicants for the post of Gramin Dak Sevak, Mail Deliverer, Karapada Branch Post Office, Ganjam, questioned the propriety and legality of Order dated 04.06.2020 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.630 of 2018 filed under Section 19 of the Administrative Tribunals Act, 1985, with the following prayer(s): <Under such circumstances it is, therefore, humbly prayed that this Hon9ble Court may kindly graciously be pleased to admit the petition and issue notice to the opposite parties and hearing upon them further be pleased to quash the Order dated 04.06.2020 under Annexure-9 passed in O.A. No.630 of 2018 and direct the opposite parties to publish the result of the petitioners in view of the advertisement under Annexure-1 and to give appointment considering their eligibility with retrospective service benefits to secure ends of Justice; And pass any other order/orders, or direction/directions as this Hon9ble Court deem just and proper. And for this act of kindness the petitioners as in duty bound shall ever pray.= W.P.(C) No.35330 of 2020 Page 3 of 100 1.1. Though in O.A. No.630 of 2018 before the learned Central Administrative Tribunal, Cuttack Bench, Cuttack, the opposite party Nos.6 and 7 were not arrayed as parties to the proceeding, the petitioners impleaded them as parties in the present writ application. However, by filing I.A. No.5647 of 2023, the petitioners affirming that <the opposite party Nos.6 and 7 have been made parties and despite notices they are not appearing, at this stage the petitioners have no grievance against them, hence their names may kindly be deleted for expeditious hearing of the matter=, made prayer for deletion of names of the opposite party Nos.6 and 7 from the array of parties. Considering such prayer, this Court vide Order No.11, dated 19.04.2023, passed the following: <2. This application has been filed by the petitioner for deletion of the name of opposite parties No.6 and 7. Copy of the application has already been served on Mr. C. Pradhan, learned Senior Panel Counsel, Govt. of India. 3. Mr. S.K. Dalai, learned counsel for the petitioner contended that opposite parties No.6 and 7 were not parties before the tribunal. But, when the matter is pending before this Court, it was brought to the notice of the Court by learned Senior Panel Counsel, Govt. of India that these two persons have been appointed in two different posts. Therefore, as an abundant caution, opposite parties No.6 and 7 have been made as parties to the writ petition. It is contended that though notice was issued to the said W.P.(C) No.35330 of 2020 Page 4 of 100 opposite parties twice, but till date they have not appeared. Therefore, the petitioner has filed this application for deletion of their names from the cause title of the writ petition. More so, the petitioner has not asked any relief against opposite parties No.6 and 7, as they have been appointed in different posts than that of the post claimed by the petitioner. 4. Mr. C. Pradhan, learned Senior Panel Counsel, Govt. of India has no objection for deletion of the name of opposite parties No.6 and 7. 5. Considering the contention raised by learned counsel for the petitioner and after going through the records, it is directed that the names of opposite parties No.6 and 7 be deleted from the cause title of the writ petition at the risk of the petitioner. 6. I.A. stands disposed of.= FACT OF THE CASE: 2. As the facts pleaded in the writ petition with documents enclosed thereto reveal that in response to Advertisement bearing Notification No. PF/GDSMD, Karapada BO, dated at Chhatrapur, the 3rd October, 2013, issued by the Government of India in Department of Posts, Office of the Assistant Superintendent of Post Offices/Inspector of Posts, Chhatrapur Sub-Division inviting applications in prescribed pro forma from intending candidates for the post of <Gramin Dak Sevak, Mail Deliverer, Karapada SO/SO/HO in account with Ganjam SO/HO= with pay scale of 3,330/- + admissible W.P.(C) No.35330 of 2020 Page 5 of 100 D.A. (for short hereinafter referred to as <GDSMD=), the petitioners made applications. 2.1. It is asserted that having not received any information with regard to fate of such applications even after much persuasion, the Senior Superintendent of Post Offices, Berhampur Division, Berhampur acting on the application under the Right to Information Act, 2005, on 22.09.2015 furnished information that out of 12 cases, only one vacancy has been filled up, but others have not been filled up due to non-receipt of administrative approval. In the appeal against such information provided by the Central Public Information Officer-cum- Senior Superintendent of Post Offices, Berhampur Division, Berhampur, the Assistant Director-I, Office of the Post Master General, Berhampur Region, Berhampur-I, on 27.01.2016 disposed of RTI/Appeal- 72/R.Ch.Behera/ BF/2015, by confirming that <11 (eleven) numbers of vacant posts are yet to be finalised=. 2.2. As it seems after two years, the petitioners having approached, the Assistant Director (PG), Office of the Central Post Master General, Odisha Circle, Bhubaneswar – 751 001 vide Letter No.PG/27- 1391/2018, dated 07.05.2018 instructed the Senior Superintendent of Post Offices, Berhampur Division, Berhampur to inquire into the matter and take necessary action to resolve the grievance with respect to W.P.(C) No.35330 of 2020 Page 6 of 100 <complaint letter No. NIL, dated 23.03.2018 received from Sri Ramesh Chandra Behera, at: Subalaya, P.O.: H. Burudi, via Humma, District: Ganjam – 761 027=. 2.3. No fruit having been yielded by said instruction of the Assistant Director (PG), the petitioners approached the Central Administrative Tribunal, Cuttack Bench, Cuttack, in O.A. No.630 of 2018. While issuing notice, following Order has been passed on 27.12.2018 in M.A. No.454 of 2018:
Arguments
<Heard learned counsel for the applicant and the learned counsel for the respondents. This matter pertains to selection of GDS by virtue of notification dtd.3.10.2013 (A/1) it is submitted by the learned counsel that letter Page-22 of the O.A. shows that 11 out of 12 GDS posts which have been advertised to be filled up vide A/1 dated 03.10.2013 have not yet been filled up as would be seen from A/5. It appears that the matter is delayed. However, learned counsel for the respondents is to obtain instructions as to whether the issue relating to the selection of GDS vide Letter dtd.3.10.2013 is open as on date or the matter is closed. Call on 15.01.2019. M.A.No.454/2018 shall be considered on the next date. Free copy of this order be made over to learned counsel for the respondents. Sd/- Gokul Chandra Pati Member (A)= W.P.(C) No.35330 of 2020 Page 7 of 100 2.4. The opposite parties in compliance of aforesaid order, filed <short reply= dated 08.03.2019, through Sri Subash Chandra Barik, Senior Superintendent of Posts, Berhampur (Gm.) Division, Berhampur (Ganjam) – 760 001, as follows: <3. That it is pertinent to mention here that prior permission is required from the competent authority to appoint the eligible candidates in Branch Post Offices but no prior permission is required to appoint in Sub-Post Offices. 4. That out of 12 notifications the Respondents have given one engagement, i.e., GDSMD in Khalikote RS Sub-Post Office after completion of scruitinization of the applications/recruitment process as there was no prior permission of the competent authority is required to fill up the GDS post of Sub-Post Office on operational ground. 5. That while the scruitinization/recruitment process as well as correspondence with the authority was under process for filling up the other vacant posts in Branch Post Offices, one instruction from Postal Directorate vide Letter No-17-39-7-2012-GDS dated 28.05.2015 was received where instructed to all concerned to fill up all vacancies of GDS post latest by 30.06.2015 in case notifications has already been issued on or before 30.03.2015 adopting the to old engagement procedure applicable prior 01.04.2015 otherwise notifications will be cancelled and filled under new engagement process. The copy of the said letter is filed herewith as ANNEXURE-R/1. the vacancies will be W.P.(C) No.35330 of 2020 Page 8 of 100 6. That further instruction of the Directorate issued vide L.No.17-23/2016-GDS dated 01.08.2016 was received where stop is selection/engagement of all types of GDS and to stop all cases of engagement which are under process. The copy of the said letter is filed as ANNEXURE-R/2. directed to it 7. 8. That the scrutiny/recruitment process of 11 numbers of vacant post of GDS was not completed for which the notifications for the said posts have stand cancelled in view of the Directorate letter dated 28.05.2015. That in accordance with the Directorate letter dated 28.05.2015, the notifications to fill up the remaining 11 numbers vacant posts for GDS including the notifications dated 03.10.2013 have been closed with effect from 30.06.2015.= 2.5. In consideration of aforesaid fact as submitted in the <short reply= of the opposite parties, the learned Central Administrative Tribunal passed the following Order on 24.04.2019: for the applicant has <Learned Counsel filed M.A.No.315/19 by which the post for which the applicant has applied is proposed to be filled up by notification dated 10.03.2019 (Annexure-A/6). Respondents counsel is not present today. Hence list on 30.04.2019 for the consideration of Μ.Α.No.315/19. Till next date respondents, may proceed as per notification dated 10.03.2019 (Annexure- A/6) but no final decision shall be taken in respect of three posts which are in question in this O.A. till next date. ***= W.P.(C) No.35330 of 2020 Page 9 of 100 2.6. Subsequent thereto final counter reply dated 18.09.2019 being filed by the opposite parties, the learned Central Administrative Tribunal upon hearing passed the following Order on 04.06.2020: <20. It is settled principle of law that the authorities have got the right to cancel any recruitment by assigning reason and the said cancellation should not be with any oblique motive or mala fide intention. In the present case no appointment letter was issued in favour of the applicant and no selection list was also published. It is the specific case of the respondents that in view of the subsequent circular dated 28.05.2015 vide Annexure R/1 which provided the cut off date to be 30.03.2015 for inviting applications online, therefore, there was sufficient reasons not to issue any selection list or appointment letter in favour of the applicant in pursuance to the earlier advertisement in question. The applicant at that stage cannot claim that he had any right for appointment to any particular post in question. The applicant has failed to prove that the authorities have cancelled the recruitment process or had stopped it with any mala fide intention or oblique motive. The fact remains that no separate order has been issued mentioning that the recruitment process this Tribunal cannot has been cancelled. But overlook further fact that there was subsequent notification for receiving online application for the recruitment in order to fill up the post in question. earlier Thus by necessary the to be recruitment process has been deemed cancelled. implication W.P.(C) No.35330 of 2020 Page 10 of 100 21. The applicant has also not approached this Tribunal in time and there has been delay by him in approaching this Tribunal in this OA in which he has challenged the order dated 22.09.2015. 22. Therefore the OA is barred by limitation and also devoid of merit. Hence the OA is dismissed but in circumstances without any cost.= 2.7. Being aggrieved, the petitioners have knocked the doors of this Court by way of the present writ application contending that as per information communicated vide Letter No.BFCCC/RTI/344, dated 24.09.2020 under the Right to Information Act, 2005 (Annexure-10), it is made known that out of 11 posts, only 2 posts in respect of Sankuda B.O. and Paladhuapalli B.O. are filled up and rest 9 posts are not filled up as yet. Out of these 9 posts, the petitioners are interested for 3 posts relating to Sindurpur B.O., Karapada B.O. and Khojapalli B.O. which are shown to be <vacant=. 3. Notices are issued on 06.04.2021 by this Court in the said writ application, and passed Order in I.A. No.15244 of 2020 to the following effect: <05. 06.04.2021 Issue notice as above. Accept one set of process fee. In the interim, the opposite parties are directed to keep three posts vacant in respect of petitioners, till the next date.= W.P.(C) No.35330 of 2020 Page 11 of 100 4. Counter affidavit dated 10.07.2022 has been filed sworn to by the Senior Superintendent of Post Office, Berhampur Division, Berhampur bringing on record the fact that <the recruitment process in respect of remaining eleven vacant posts of Gramin Dak Sevak was not completed by 30.06.2015, for which the notifications for the said posts stand cancelled in accordance with Directorate Letter dated 28.05.2015= and later vide Letter No.17-23/2016-GDS, dated 01.08.2016, it was directed to stop selection/engagement of all types of GDS and stop all cases of engagement which are under process. Consequent upon Notification No.EST/1- 151/2019 (B3), dated 10.03.2019, online recruitment process has been started centrally by the Circle Office, Bhubaneswar. 4.1. The opposite parties specifically pleaded that as the selection process could not be completed by the opposite party No.5 (Assistant Superintendent of Posts of Chhatrapur Sub-Division, Chhatrapur) on or before the stipulated date, i.e., 30.06.2015, the notification dated 03.10.2010 stands cancelled in conformity with the Order contained in Directorate Letter No.17-39/7/2012- GDS, dated 28.05.2015. It is explained that the post of GDS, Khallikote RS Sub-Post Office could be filled up without prior permission by said opposite party No.5 as there was no requirement for administrative approval for filling up post in Sub-Post Office; however, while W.P.(C) No.35330 of 2020 Page 12 of 100 correspondences were being made to fill up other vacancies related to Branch Offices, Letter No.17- 39/7/2012-GDS, dated 28.05.2015 was issued by the Government of India in Ministry of Communication & IT, Department of Posts (GDS Section), whereby instruction contained to fill up vacancies by 30.06.2015, or else, the earlier notification would stand cancelled. Said letter stipulated that <the vacancies should be filled under the new Engagement Process (Aptitude Test Method) applicable with effect from 01.04.2015=. Subsequently Letter No.17-23/2016-GDS, 01.08.2016, was issued containing instruction to <stop selection/ engagement of all types of Gramin Dak Sevaks with immediate effect=. The Original Application being filed with delay, in view of Section 21 of the Administrative Tribunals Act, 1985, the same has appropriately been held to be barred by limitation by the Central Administrative Tribunal. Therefore, the writ petition, being devoid of merit consideration, is liable to be dismissed. 4.2. It has been brought to fore by the opposite parties that after dismissal of O.A. No.630 of 2018 by the Central Administrative Tribunal, Cuttack Bench, Cuttack, out of three posts, i.e., GDSMD, Sindurpur B.O., GDSMD, Karapada B.O., GDSMD, Khojapalli B.O., the post of GDSMD, Karapada B.O. has been filled up on compassionate ground and other two posts are lying vacant. W.P.(C) No.35330 of 2020 Page 13 of 100 4.3. Laying stress upon Letter No.17-39/7/2012-GDS, dated 28.05.2015 issued by the Government of India in Ministry of Communication & IT, Department of Posts (GDS Section), the opposite parties specifically took stance that new engagement process, i.e., (Aptitude Test Method), being put in place with effect from 01.04.2015, publication of result pertaining to earlier Notification bearing No.PF/GDSMD, Karapada BO, dated 03.10.2013 did not survive. As such in the process, there is no involvement of mala fide or oblique motive as alleged by the petitioners. 5. Raking up the issue of need for according administrative approval, rejoinder affidavit dated 17.10.2022 has been filed asserting that it is with mala fide intention and calculated to frustrate appointment of subject-GDS, the opposite parties attempted to take shelter of non- availability of approval in respect of Branch Office. Referring to non-requirement of such administrative approval in respect of Sub-Post Offices, it is contended that it hits at discrimination qua Branch Office vis-(cid:224)-vis Sub-Post Office and it is affirmed by the petitioners that there was no such stipulation provided in the notification dated 28.05.2015. 5.1. By way of the rejoinder affidavit the petitioners raised voice against manner of doing things and questioned the W.P.(C) No.35330 of 2020 Page 14 of 100 process of cancellation in respect of eleven posts of GDS while allowing GDSMD, Khallikote RS Sub-Post Office. 6. Clarifying further in reply to rejoinder affidavit dated 02.12.2022 filed by the petitioners, the opposite parties have made the submission that <regarding contention of the petitioners as to non-mention of any such stipulation towards obtaining prior permission for filling up GDS posts of Branch Post Offices, it is to submit that these are internal affairs of the Department and pre- notification formalities which need no reflection in the notification=. 6.1. At paragraph 8 of the reply affidavit dated 02.12.2022, the opposite parties have made it clear that <Conditions stipulated in Advertisements are generally for the information/guidance of candidates, but seeking prior permission/Administrative approval from higher authority for filling up GDS post is purely internal affairs of the Department and pre-notification formalities which need no reflection in the Advertisement. As per instruction contained in Letter No.17-23/2016-GDS, dated 01.08.2016 (Annexure-R/4) selection/engagement of all types of GDS were stopped=. 6.2. Taking strong exception to the contention of the petitioners in their rejoinder affidavit (paragraph 4) that <In this sub-para the opposite parties have replied the rest eleven numbers of vacant posts could not be W.P.(C) No.35330 of 2020 Page 15 of 100 completed accordingly cancellation notification was displayed in the office notice board of the Assistant Superintendent of Post Office, Chhatrapur Sub-Division, which is not only the false statement but also in the other hand they have admitted there is no such cancellation in regard=, the opposite parties refuting such fact made affirmative statement to the effect that <nowhere in paragraph 3 of the counter the opposite parties have replied that the cancellation notice was displayed in the office notice board of the Assistant Superintendent of Posts, Chhatrapur Sub-Division. Rather it is the false statement of the petitioners to mislead the Hon9ble Court.= 6.3. In paragraph 9 of the said reply affidavit dated 02.12.2022, it has been emphasized by the opposite parties that <In accordance with the Directorate letter dated 28.05.2015 (Annexure-R/3), the notifications to fill up the remaining eleven vacant GDS posts stand cancelled automatically with effect from 01.07.2015. There is no such provision to intimate the applicants individually as to cancellation of notifications.= 6.4. Repelling the assertion of the petitioners that they are meritorious candidates in comparison to other eligible candidates qua Khallikote RS Sub-Post Office, it has been placed on record that as per the check list (Annexure-R/5 enclosed to reply to rejoinder affidavit) W.P.(C) No.35330 of 2020 Page 16 of 100 whereas the petitioner No.1 (Ramesh Chandra Behera) is positioned at serial No.13, the petitioner No.2-Bhagirathi Das at serial No.5 and the petitioner No.3 at serial No.7. HEARING OF WRIT PETITION BEFORE THIS COURT: 7. On the pleadings being exchanged among counsel for the respective parties, on their consent, the matter is taken up for final hearing at the stage of admission. This Court heard Sri Sukanta Kumar Dalai, learned Advocate for the petitioners and Sri Chandrakanta Pradhan, learned Senior Panel Counsel for the opposite party Nos. 1 to 5. SUBMISSIONS AND ARGUMENTS OF RESPECTIVE PARTIES: 8. Main plank of argument of Sri Sukanta Kumar Dalai, learned Advocate proceeded on the ground that the petitioners have been kept in dark by not publishing the result even though they have been waiting since 2013 and they were pursuing the matter diligently for having a scope to eke out livelihood by getting appointment as GDS on consideration of their applications. Showing peeve against the ground of dismissal of O.A. No.630 of 2018 by the Central Administrative Tribunal vide Order dated 04.06.2020, it is submitted that the same is passed without application of mind and the ground of limitation is contrary to the records. He went on to submit that it is <only after issuance of letter dated 07.05.2018 and so also information under the Right to W.P.(C) No.35330 of 2020 Page 17 of 100 Information Act=, the cause of action to approach the Central Administrative Tribunal arose. 8.1. It is next contended by the learned Advocate for the petitioners that the opposite parties have not only acted irresponsibly, but also with mala fides <by giving appointment in respect of one of the candidates for the same advertisement=. Referring to contents of paragraph 24 of the writ petition, he further submitted that mala fide is manifest as the opposite parties did not publish result of applications submitted by the present petitioners, whereas they have filled up one of the posts, namely GDSMD, Khallikote RS Sub-Post Office under <unreserved category=. Therefore, the petitioners have been discriminated against and Sri Sukanta Kumar Dalai, learned Advocate in his usual style of vehemence made attempt to persuade this Court by submitting that ends of justice would subserve best if the opposite parties are directed to publish the result in consideration of applications made in connection with Advertisement dated 03.10.2013. 9. Sri Chandrakanta Pradhan, learned Senior Panel Counsel appearing on behalf of the opposite party Nos.1 to 5 stuck to the stand taken in the counter affidavit as also the reply to the rejoinder affidavit and would submit that by virtue of instructions contained in Letter No.17- 39/7/2012-GDS, dated 28.05.2015 issued by the W.P.(C) No.35330 of 2020 Page 18 of 100 Government of India in Ministry of Communication & IT, Department of Posts (GDS Section), the vacancies having not been filled up by the cut-off date, i.e., 30.06.2015, the earlier notification stood cancelled. There was no necessity or requirement to intimate the result of the applications individually. 9.1. It is further submitted that Khollikote RS being a Sub- Post Office, the post of GDSMD to said post office is finalized which required no administrative approval. For the rest of the eleven numbers of posts, the same being Branch Post Office required approval of higher authority, as such, the applications could not be finalized. In the meantime Letter No.17-23/2016-GDS, dated 01.08.2016 has been issued by Government of India, Ministry of Communication & IT, Department of Posts (GDS Section) restricting <selection/engagement of all types of Gramin Dak Sevaks with immediate effect= and instructed to go ahead with the matters which have already been finalized. Such being the position, there is no scope for issue of writ of mandamus vacating the impugned Order of the Central Administrative Tribunal, which is just, illogical and with due appreciation of evidence on record. DISCUSSIONS AND ANALYSIS: 10. In supersession of <THE DEPARTMENT OF POSTS, GRAMIN DAK SEVAKS (CONDUCT AND EMPLOYMENT) RULES, 2001= except as respects things done or omitted to be done before W.P.(C) No.35330 of 2020 Page 19 of 100 such supersession, <THE DEPARTMENT OF POSTS, GRAMIN DAK SEVAKS (CONDUCT AND ENGAGEMENT) RULES, 2011= has been brought to force with effect from the date of circulation by virtue of Letter No.21-8/2010-GDS, dated 18.04.2011. In the said Rules, the term <Gramin Dak Sevak= has been defined under Rule 3(d) as follows: A Gramin Dak Sevak Branch Postmaster; <Graamin Dak Sevak means4 (i) (ii) A Gramin Dak Sevak Mail Deliverer; (iii) A Gramin Dak Sevak Mail Carrier; (iv) A Gramin Dak Sevak Mail Packer; (v) A Gramin Dak Sevak Stamp Vendor. Note.4 1. The category of Gramin Dak Sevak Sub-Postmaster is no more in existence on implementation of orders issued under No.5-7/2009-PE-II, dated 14.01.2010. 2. 3. The category of Gramin Dak Sevak Mailman is declared a wasting group vide letter No.6-23/2010- PE-II dated 21.07.2010. The category of Gramin Dak Sevak Mail Messenger was ordered to be phased out vide Order dated 10.10.2005.= 11. The entire case of the petitioners and the opposite parties rests on the following instructions, which are reproduced in extenso: <No.17-39/7/2012-GDS Government of India W.P.(C) No.35330 of 2020 Page 20 of 100 Ministry of Communication & IT Department of Posts (GDS Section) Dak Bhawan, Sansad Marg New Delhi-11000 Date 28.05.2015 To All Chief Postmasters General Sub.: Revised selection process for engagement to all approved categories GDS posts In continuation to this Directorate OM of even number dated 14.01.2015 on the subject mentioned above, the following instructions are issued: All vacancies of GDS posts for which notification has already been issued on/or before 31.03.2015 by the concerned recruiting authority should be filled up the old latest by 30.06.2015 by adopting to procedure engagement 01.04.2015. applicable prior In case any of these vacancies are not filled up latest by 30.06.2015, the notification should be cancelled and the vacancies should be filled under the new engagement process (Aptitude Test Method) applicable with effect from 01.04.2015. This may be brought to the notice of all concerned. Sd/- (Surender Kumar) Assistant Director General (GDS)= *** W.P.(C) No.35330 of 2020 Page 21 of 100 <Government of India Ministry of Communication & IT Department of Posts (GDS Section) Dak Bhawan, Sansad Marg New Delhi-1100001 No. 17-23/2016-GDS Dated: 1, Aug 2016 To All Head of Circles Sub.: Proposed online selection of all categories of GDS4 reg. I am directed to request you to stop selection/ engagement of all types of Gramin Dak Sevaks with immediate effect. It is further requested to stop all cases of engagement which are under process. Cases where selection has already been finalized and communicated to candidates only need not be withheld. 2. 3. These orders are issued in view of proposal for online selection of Gramin Dak Sevaks. Further orders in this regard may kindly be awaited. issues with This authority. the approval of competent (RL Patel) Asstt. Director General (GDS)= 11.1. The aforesaid instructions clearly mandated that all vacancies of GDS posts for which notification had already been issued on/or before 31.03.2015 by the concerned recruiting authority should be filled up latest by 30.06.2015 with stipulation that non-filled up post by Page 22 of 100 W.P.(C) No.35330 of 2020 said date would be cancelled. Further Letter dated 01.08.2016 interdicted by making request to stop selection/engagement of all types of Gramin Dak Sevaks with immediate effect. 11.2. The fact as placed by the petitioners reveals that they were made to inform under the Right to Information Act, 2005 by disposal of appeal under Section 19 thereof vide Order dated 12.02.2016 that <the CPIO-cum-SSPOs Berhampur Division, Berhampur vide Letter No.BFCCC/RTI-75 dated 08.01.2016 replied that the information available materially has already been supplied to the appellant vide SSPOs Berhampur Division Letter No.BF-CCC/RTI-75, dated 22.09.2015. It is within the knowledge of the petitioners by way of communication made by Assistant Director-I, Office of Post Master General, Berhampur Region, Berhampur-I vide No.RTI/Appeal-72/R.Ch.Behera/BF/2015, dated 27.01.2016 that <Out of 12 numbers of vacant posts of GDS official only 01 (one) post has been filled up. As 11 (eleven) numbers of vacant posts yet to be finalized.= 11.3. The Central Administrative Tribunal has recorded the following objection of the opposite parties taken in the original application at paragraph 4 of its Order dated 04.06.2020: <*** Besides the above, the respondents have stated that the present O.A. is barred by limitation in view of the fact W.P.(C) No.35330 of 2020 Page 23 of 100 for that the applicants prayer for appointment basing upon the notification dated 03.10.2013 having been cancelled by virtue of the Postal Director Letter dated 28.05.2015 as the recruitment process had not been completed till 31.03.2015 and the said letter was also affixed on the notice board of information. respondent No.5 Therefore, the Respondents have pointed out that after cancellation of the notification on 28.05.2015, the cause of action arose for the applicants to approach this Tribunal, whereas they, without doing through RTI application, which was provided to them on 22/23.09.2015. Respondents have pleaded that presuming that the cause of action for approaching this Tribunal arose on 22/23.03.2015 when they received information under the RTI Act, the applicants should have approached this Tribunal thereafter, instead, they went on filing repeated RTI applications. Respondents have submitted that as per the settled position of law getting information under RTI Act does not erase and cure the delay. ***= information sought so 11.4. On consideration of contentions and averments contained in the original application and the replies of the other side, the learned Central Administrative Tribunal has confined its investigation into the appointment so far as post of GDSMD of Karapada Sub- Post Office is concerned. Vide Paragraph 15 of its Order it is made clear that by seeking relief the petitioners insisted for issue of direction to publish result in connection with Advertisement dated 03.10.2013 and it has been noted as follows: W.P.(C) No.35330 of 2020 Page 24 of 100 <Advertisement under Annexure-A/1 is for filling up the vacancy of GDSMD, Karapada. Therefore, this Tribunal is confined to the filling up the post in question as per Annexure-A/1 and not beyond that=. 11.5. On analysis of facts, the learned Central Administrative Tribunal came to conclude taking into account the tenor of Letter No.17-39/7/2012-GDS, dated 28.05.2015 issued by the Government of India in Ministry of Communication & IT Department of Posts (GDS Section), that the petitioners have no right for appointment to any particular post in question and they have failed to prove that the authorities have cancelled the recruitment process or had stopped it with any mala fide intention or oblique motive. 11.6. This Court examining the averments in pleadings of respective parties found that the petitioners have laid much emphasis on the ill-intention of the opposite parties in not finalizing their applications stated to have been filed in response to Advertisement dated
Decision
03.10.2013. Not only in the writ petition, but also in the rejoinder affidavit the petitioners have used expressions like <false statement=, <misleading averment=, <based upon mala fide= and <oblique intention= against the opposite parties, but without any material particulars. It is observed by this Court that on the contrary, the opposite parties throughout have impressed upon that out of twelve posts, only one post was filled up with W.P.(C) No.35330 of 2020 Page 25 of 100 respect to post of GDSMD of Khallikote RS Sub-Post Office, since it is <Sub-Post Office= which required no approval from the higher authorities. It is asserted by the opposite parties that in order to fill up vacant posts in the Branch Post Office, there is requirement of administrative approval, which is internal process. It is further clarified by adducing evidence like Letter No.17- 39/7/2012-GDS, dated 28.05.2015 issued by the Government of India in Ministry of Communication & IT Department of Posts (GDS Section) read with Letter dated 01.08.2016, that on account of introduction of revised selection process, the vacancies which could not be filled up by 30.06.2015, all cases of selection/ engagement, which were under process, were directed to be stopped. Production of such letters along with explanation proffered evinced that the petitioners could not prove mala fide intention or oblique motive on the part of the opposite parties. Therefore, on the facts and in the circumstances of this case, it is not possible to hold that the impugned action of the opposite parties is unfair or unjust or irrational or arbitrary or tainted with any mala fide intention. 11.7. Nonetheless, the legal position as to substantiate the allegation of mala fide intention and oblique motive has, by now, been clearly laid down in different judicial pronouncements. There is no cavil for the proposition that when a party alleges mala fide against a statutory W.P.(C) No.35330 of 2020 Page 26 of 100 authority, burden falls heavy on him who alleges it. It is a settled law where a mala fide is alleged, the authority, who has passed the order, which is said to be the result of the mala fide exercise of power, has to be impleaded eo nominee. In the absence of such impleadment, the Court neither can look into the plea of mala fide nor can consider the issue raising mala fide. In the case at hand, none of the persons/authorities, against whom unsubstantiated, uncalled for and unwarranted allegations have been made, has been impleaded. Thus, such allegations as levelled by the petitioners cannot be entertained. In First Land Acquisition Collector Vrs. Nirodhi Prakash Gangoli, (2002) 4 SCC 160; and Jasvinder Singh Vrs. State of J&K, (2003) 2 SCC 132, the Supreme Court of India held that burden of proving mala fides is very heavy on the person who alleges it. Mere allegation is not enough. Party making such allegations is under the legal obligation to place specific materials before the Court to substantiate the said allegations. 11.8. The issue of <malus animus= was considered in Tara Chand Khatri Vrs. Municipal Corporation of Delhi, AIR 1977 SC 567, wherein the Supreme Court has held that the High Court would be justified in refusing to carry on investigation into the allegation of mala fides, if necessary particulars of the charge making out a prima facie case are not given in the writ petition and burden W.P.(C) No.35330 of 2020 Page 27 of 100 of establishing mala fides lies very heavily on the person who alleges it and there must be sufficient material to establish malus animus. 11.9. In J.N. Banavalikar Vrs. Municipal Corporation of Delhi, AIR 1996 SC 326 = 1995 Supp.4 SCR 1 it has been observed as follows: <If the administration of a public body or a Government takes a decision which can be demonstrated as lacking in reasonableness and fair-play or tainted with mala fide or arbitrariness, such administrative action even if made by a competent authority, offends the pervasive protection under Article 14 of the Constitution of India against mala fide and arbitrariness in the Governmental action and action of the public bodies, in our view, the appellant would be entitled to ask for quashing the impugned action of his removal from the post of Medical Superintendent if it can be demonstrated to the satisfaction of the court that such action had been taken without any reasonable basis and not being informed by administrative exigency but merely on the caprice and ipse dixit of the concerned authority or being actuated by mala fide intention. *** that in order to the appellant The contention of accommodate a junior doctor as Medical Superintendent in I.D. Hospital, Dr. Patnaik had been moved out from the said hospital the appellant as Medical Superintendent of RBTB Hospital, is not only vague but lacks in particulars forming the foundation of such contention. Further, in the absence of impleadment of the junior doctor who is alleged to have been to replace W.P.(C) No.35330 of 2020 Page 28 of 100 favoured by the course of action leading to removal of the appellant and the person who had allegedly passed mala fide order in order to favour such junior doctor, any contention of mala fide action in fact i.e. malice in fact should not be countenanced by the court.= 11.10. The conceptual understanding of allegation of mala fide against authority as re-affirmed in the case of Rajneesh Khajuria Vrs. M/s. Wockhardt Ltd., (2020) 1 SCR 1005 may have significance in the present context. The following observations as find place in said reported Judgment is reproduced hereunder: <14. *** In a Judgment reported as State of Bihar Vrs. P.P. Sharma, 1992 Supp (1) SCC 222, this Court held that mala fide means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The plea of mala fide involves two questions, namely (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power. As far as second aspect is concerned, there is a power of transfer vested in the employer in terms of letter of appointment. Even in terms of the provisions of the Act, the transfer by itself cannot be said to be an act of unfair labour practice unless it is actuated by mala fide. Therefore, to sustain a plea of mala fide, there has to be an element of personal bias or an oblique motive. This Court held as under: W.P.(C) No.35330 of 2020 Page 29 of 100 it administrative 850. Mala fides means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be said to be done in good faith, if it is in fact done honestly, whether is done negligently or not. An act done honestly is deemed to have been done in good faith. An authority must, therefore, act in a bona fide manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fide involves two questions, namely (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power. 51. The action taken must, therefore, be proved to have been made mala fide for such considerations. Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand. W.P.(C) No.35330 of 2020 Page 30 of 100 *** 59. Malice in law could be inferred from doing of wrongful act intentionally without any just cause or excuse or without there being reasonable relation to the purpose of the exercise of statutory power. Malice in law is not established from the omission to consider some documents said to be relevant to the accused. Equally reporting the commission of a crime to the Station House Officer, cannot be held to be a colourable exercise of power with bad faith or fraud on power. It may be honest and bona fide exercise of power. There are no grounds made out or shown to us that the first information report was not lodged in good faith. State of Haryana Vrs. Ch. Bhajan Lal, 1992 Supp (1) SCC 335 = JT 1990 (4) SC 650 is an authority for the proposition that existence of deep seated political vendetta is not a ground to quash the FIR. Therein despite the attempt by to prove by affidavit evidence corroborated by documents of the mala fides and even on facts as alleged no offence was committed, this Court declined to go into those allegations and relegated the dispute for investigation. Unhesitatingly I hold that the findings of the High Court that FIR gets vitiated by the mala fides of the Administrator and the charge-sheets are the results of the mala fides of the informant or investigator, to say the least, is fantastic and obvious gross error of law.9 the respondent 15. In another judgment reported as Prabodh Sagar Vrs. Punjab State Electricity Board, (2000) 5 SCC 630, it W.P.(C) No.35330 of 2020 Page 31 of 100 was held by this Court that the mere use of the expression <mala fide= would not by itself make the petition entertainable. The Court held as under: 813. *** Incidentally, be it noted that the expression <mala fide= is not meaningless jargon and it has its proper connotation. Malice or mala fides can only be appreciated from the records of the case in the facts of each case. There cannot possibly be any set guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and circumstances. We ourselves feel it expedient to record that the petitioner has become more of a liability than an asset and in the event of there being such a situation vis-(cid:224)-vis an employee, the employer will be within his liberty to take appropriate steps including the cessation of relationship between the employer and the employee. The service conditions of the Board9s employees also provide for voluntary (sic compulsory) retirement, a person of the nature fully detailed of hereinbefore, cannot possibly be given any redress against the order of the Board for voluntary retirement. There must be factual support pertaining to the allegations of mala fides, unfortunately there is none. Mere user of the word <mala fide= by the petitioner would not by itself make the petition entertainable. The Court must scan the factual aspect and come to its own conclusion i.e. exactly what the High Court has done and that is the reason why the narration has been noted in this judgment in extenso. ***9 the petitioner, as more W.P.(C) No.35330 of 2020 Page 32 of 100 16. In a Judgment reported as HMT Ltd. Vrs. Mudappa (2007) 9 SCC 768, quoting from earlier judgment of this Court reported as State of A.P. Vrs. Goverdhanlal Pitti, (2003) 4 SCC 739, it was held that law9 means 8something done without lawful excuse9. It is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. The Court held as under: 8legal malice9 or 8malice in 824. The Court also explained the concept of legal mala fide. By referring to Words and Phrases London Legally Butterworths, stated: (Goverdhanlal case, (2003) 4 SCC 739, SCC p. 744, para 12) the Court Defined, Edn., 1989 3rd 812. The legal meaning of malice is 8ill will or spite towards a party and any indirect or improper motive in taking an action9. This is sometimes described as 8malice in fact9. 8Legal malice9 or 8malice in law9 means 8something done without lawful excuse9. In other words, is an act done 8it wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. in disregard of the rights of others.9 is a deliberate act It It was observed that where malice was attributed to the State, it could not be a case of malice in fact, or personal ill-will or spite on the part of the State. It could only be malice in law i.e. legal mala fide. The State, if it wishes to acquire land, could exercise its power bona fide for statutory purpose and for none other. It was Page 33 of 100 W.P.(C) No.35330 of 2020 observed that it was only because of the decree passed in favour of the owner that the proceedings for acquisition were necessary and hence, notification was issued. Such an action could not be held mala fide.9 17. In a Judgment reported as Union of India Vrs. Ashok Kumar, (2005) 8 SCC 760, it has been held that allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. The Court held as under: 821. Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers. While the indirect motive or purpose, or bad faith or personal ill will is not to be held established except on clear proof thereof, it is obviously difficult to establish the state of a man9s mind, for that is what the employee has to establish in this case, though this may sometimes be done. The difficulty is not lessened when one has to establish that a person apparently acting on the legitimate exercise of power has, in fact, been acting mala fide in the sense of pursuing an illegitimate aim. It is not the law that mala fides in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must be shown from the established surrounding factors which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts. (S. W.P.(C) No.35330 of 2020 Page 34 of 100 Pratap Singh Vrs. State of Punjab, (1964) 4 SCR 733 = AIR 1964 SC 72). It cannot be overlooked that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. As noted by this Court in E.P. Royappa Vrs. State of T.N., (1974) 4 SCC 3 = AIR 1974 SC 555, Courts would be slow to draw dubious inferences from incomplete facts placed before them by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. (See Indian Rly. Construction Co. Ltd. Vrs. Ajay Kumar, (2003) 4 SCC 579).9 18. In another Judgment reported as Ratnagiri Gas and Power Private Limited Vrs. RDS Projects Limited, (2013) 1 SCC 524, this Court held that when allegations of mala fides are made, the persons against whom the same are levelled need to be impleaded as parties to the proceedings to enable them judicial the pronouncement declaring an action to be mala fide is a serious indictment of the person concerned that can lead to adverse civil consequences against him. The Court held as under: charge. A answer to 827. There is yet another aspect which cannot be ignored. As and when allegations of mala fides are made, the persons against whom the same are levelled need to be impleaded as parties to the proceedings to enable them to answer the charge. In the absence of the person concerned W.P.(C) No.35330 of 2020 Page 35 of 100 that a as a party in his/her individual capacity it will neither be fair nor proper to record a finding that malice in fact had vitiated the action taken by the authority concerned. It is important to remember judicial pronouncement declaring an action to be mala fide is a serious indictment of the person concerned that can lead to adverse civil consequences against him. Courts have, therefore, to be slow in drawing conclusions when to holding it allegations of mala fides to be proved and only in cases where based on the material placed before the Court or facts that are admitted leading to inevitable inferences supporting the charge of mala fides that the Court should record a finding in the process ensuring that while it does so, it also hears the person who was likely to be affected by such a finding.9 ***= comes 11.11. The Hon9ble Supreme Court of India in All India State Bank Officers9 Federation Vrs. Union of India, (1997) 9 SCC 151 observed as follows: <21. In view of the aforesaid explanation of the respondent-Bank, which we see no reason to disbelieve, it is clear that the petitioners have made baseless and reckless allegations of mala fides. Respondents 4 and 5 obviously had no direct or indirect role to play either in the formulation of the policy or in the memorandum being placed as a table item to be taken up for consideration in the meeting held on 07.03.1989. The modification was approved by the Chairman and all the Directors who were in the meeting of the Board. For an present W.P.(C) No.35330 of 2020 Page 36 of 100 allegation of mala fide to succeed it must be conclusively shown that Respondents 4 and 5 wielded influence over all the members of the Board who were present in the said meeting. No such allegation has been made. The decision to modify the promotion policy was taken by a competent authority, namely, the Central Board in a duly constituted meeting held on 07.03.1989 and we are unable to accept that this change in the policy was brought about solely with a view to help Respondents 4 and 5. 22. There is yet another reason why this contention of the petitioners must fail. It is now settled law that the person against whom mala fides are alleged must be made a party to the proceeding. The allegation that the policy was amended with a view to benefit Respondents 4 and 5 would amount to the petitioners contending that the Board of Directors of the Bank sought to favour Respondents 4 and 5 and, therefore, agreed to the proposal put before it. Neither the Chairman nor the Directors, who were present in the said meeting, have been impleaded as respondents. This being so the petitioners cannot be allowed to raise the allegations of mala fides, which allegations, in fact, are without merit.= 11.12. In Federation of Railway Officers Association Vrs. Union of India, AIR 2003 SC 1344, it has been held as under: <That allegations regarding mala fides cannot be vaguely made and it must be specified and clear. In this context, the concerned Minister who is stated to be involved in the formation of new Zone at Hazipur is not made a party who can meet the allegations.= W.P.(C) No.35330 of 2020 Page 37 of 100 11.13. Therefore, essentially in Federation of Rly. Officers Association Vrs. Union of India, AIR 2003 SC 1344, the Hon9ble Supreme Court has held that the allegation of mala fide has to be specifically made and the person against whom such allegations are made has to be impleaded and in his absence such allegations cannot be taken into consideration. 11.14. It has been settled legal proposition that in case allegations of mala fide are made against any person he is to be impleaded by name, otherwise the allegations cannot be considered. [Vide State of Bihar Vrs. P.P. Sharma, IAS of Delhi and another, AIR 1996 SC 326; All India State Bank Officers Federation and others Vrs. Union of India and others, (1997) 9 SCC 151; and I.K. Mishra Vrs. Union of India and others, (1997) 6 SCC 228]. 11.15. In E.P. Royappa Vrs. State of Tamil Nadu, AIR 1974 SC 555, the Supreme Court observed as under: <Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it... The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charges of unworthy conduct against ministers and other, not because of any special status... but because otherwise, functioning effectively would become difficult in a democracy.= W.P.(C) No.35330 of 2020 Page 38 of 100 11.16. The Supreme Court, in Sukhwinder Pal Bipan Kumar Vrs. State of Punjab, AIR 1982 SC 65; and Shivajirao Nilangekar Patil Vrs. Dr. Mahesh Madhav Gosavi, AIR 1987 SC 294; has made similar observations. 11.17. In M. Sankaranarayanan, IAS Vrs. State of Karnataka, AIR 1993 SC 763, the Supreme Court observed that the Court may <draw a reasonable inference of mala fide from the facts pleaded and established. But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of insinuation, surmise or conjecture.= 11.18. In N.K. Singh Vrs. Union of India, (1994) 6 SCC 98, the Supreme Court has held that <the inference of mala fides should be drawn by reading in between the lines and taking into account the attendant circumstances.= 11.19. There has to be very strong and convincing evidence to establish the allegations of mala fides specifically alleged in the petition as the same cannot merely be presumed. The presumption is in favour of the bona fides of the order unless contradicted by acceptable material. [Vide, State of UP Vrs. Dr. V.N. Prasad, 1995 Suppl (2) SCC 151; Arvind Dattatraya Dhande Vrs. State of Maharashtra, (1997) 6 SCC 169; Utkal University Vrs. Dr. Nrusingha Charan Sarangi, (1999) 2 SCC 193; Kiran W.P.(C) No.35330 of 2020 Page 39 of 100 Gupta Vrs. State of U.P., (2000) 7 SCC 719; and Netai Bag Vrs. State of W.B., (2000) 8 SCC 262]. 11.20. In State of Punjab Vrs. V.K. Khanna, (2001) 2 SCC 330, the Apex Court examined the issue of bias and mala fide, observing as under: <Whereas fairness is synonymous with reasonableness4 bias stands included within the attributes and broader purview of the word 8malice9 which in common acceptance means and implies 8spite9 or 8ill will9. One redeeming feature in the matter of attributing bias or malice and is now well settled that mere general statements will not be sufficient for the purpose of indication of ill will. There must be cogent evidence available on record to come to the conclusion as to whether in fact, there was existing a bias or a mala fide move which results in the miscarriage of justice... In almost all legal inquiries, 8intention as distinguished from motive is the all important factor9 and in common parlance a malicious act stands equated with an intentional act without just cause or excuse.= 11.21. Similar view has been reiterated in Samant Vrs. Bombay Stock Exchange, (2001) 5 SCC 323. 11.22. At paragraph 18 of the writ petition, the petitioners have alleged as follows: <Rather on their reply it is very clear the irresponsible and negligence of the authorities have been pointed out and more specifically they have worked out on their own choice by giving appointment in respect of one of the candidates for the same advertisement, the petitioners have been singled out due to mala fide intention of the opposite parties.= W.P.(C) No.35330 of 2020 Page 40 of 100 11.23. Such scurrilous attack by the petitioners cannot be countenanced as it is fact on record that GDSMD of Khallikote RS Sub-Post Office is allowed as appointment/engagement to Sub-Post Office requires no prior approval of the higher authority and GDSMD of Karapada, being Branch Post Office, required administrative approval. As the finalization could not be made prior to cut-off date, i.e., 30.06.2015 as per instructions vide Letter dated 28.05.2015 read with Letter dated 01.08.2016, it could not be said that the opposite parties have oblique motive in stopping selection/engagement of all types of GDS on or after 01.08.2016. 11.24. In the instant case, no factual foundation has been laid to substantiate the scandalous allegation of mala fide against the opposite parties. The petitioner having not impleaded the person by name, thereby as the pleadings fall short of taking note of such an issue, this Court is not inclined to entertain such baseless pleas. 12. After analyzing the factual matrix of the matter with legal position in the foregoing paragraphs, it is now expedient to consider as to whether making application for appointment/engagement as GDSMD in respect of Karapada Branch Post Office would confer right to claim for the post? Definitely the answer is <NO=. The service jurisprudence has acknowledged that even after name of W.P.(C) No.35330 of 2020 Page 41 of 100 a candidate finds place in the select list, it would not entail any indefeasible right to claim for the post. 12.1. The principle regarding selection of candidate has been well established; suffice it to quote the following lines from Manoj Manu Vrs. Union of India, (2013) 10 SCR 8: the Government not <14. It is, thus, manifest that though a person whose name is included in the select list, does not acquire any right to be appointed. The Government may decide not to fill up all the vacancies for valid reasons. Such a decision on the part of the required/advertised vacancies should not be arbitrary or unreasonable but must be based on sound, rational and conscious application of mind. Once, it is found that the decision of the Government is based on some valid reason, the Court would not issue any Mandamus to Government to fill up the vacancies.= fill up to 12.2. In Shankarsan Dash Vrs. Union of India, (1991) 3 SCC 47, a Constitution Bench of the Supreme Court of India held that: <7. legitimately denied. Ordinarily It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which the cannot be notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all Page 42 of 100 W.P.(C) No.35330 of 2020 is bound the State or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be correct position has been permitted. This consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana Vrs. Subash Chander Marwaha, (1974) 3 SCC 220, Neelima Shangla Vrs. State of Haryana, (1986) 4 SCC 268, or Jatindra Kumar Vrs. State of Punjab, (1985)1 SCC 122.= to respect 12.3. In a Judgment reported as S.S. Balu Vrs. State of Kerala, (2009) 2 SCC 479, it was held that: <12. There is another aspect of the matter which cannot also be lost sight of. A person does not acquire a legal right to be appointed only because his name appears in the select list. (See Pitta Naveen Kumar Vrs. Raja Narasaiah Zangiti, (2006) 10 SCC 261. The State as an employer has a right to fill up all the posts or not to fill them up. Unless a discrimination is made in regard to the filling up of the vacancies or an arbitrariness is committed, the candidate concerned will have no legal right for obtaining a writ of or in the nature of mandamus. See Batiarani Gramiya Bank Vrs. Pallab Kumar, (2004) 9 SCC 100.= 12.4. In Pitta Naveen Kumar Vrs. Raja Narasaiah Zangiti, (2006) 10 SCC 261, it was held as follows: W.P.(C) No.35330 of 2020 Page 43 of 100 <32. *** A candidate does not have any legal right to be appointed. He in terms of Article 16 of the Constitution of India has only a right to be considered therefor. Consideration of the case of an individual candidate although ordinarily is required to be made in terms of the extant rules but strict adherence thereto would be necessary in a case where the rules operate only to the disadvantage of the candidates concerned and not otherwise.= 12.5. In another Judgment reported in Kulwinder Pal Singh Vrs. State of Punjab, (2016) 6 SCC 532, it was held as under: <10. It is fairly well settled that merely because the name of a candidate finds place in the select list, it would not give him indefeasible right to get an appointment as well. The name of a candidate may appear in the merit list but he has no indefeasible right to an appointment vide Food Corporation of India Vrs. Bhanu Lodh, (2005) 3 SCC 618, All India SC & ST Employees9 Association Vrs. A. Arthur Jeen, (2001) 6 SCC 380 and UPSC Vrs. Gaurav Dwivedi, (1999) 5 SCC 180. 11. This Court again in State of Orissa Vrs. Rajkishore Nanda (2010) 6 SCC 777, held as under: 814. A person whose name appears in the select list does not acquire any indefeasible right of is a appointment. Empanelment at best condition of eligibility for the purpose of appointment and by itself does not amount to to be selection or create a vested right appointed. The vacancies have to be filled up W.P.(C) No.35330 of 2020 Page 44 of 100 as per the statutory rules and in conformity with the constitutional mandate. * * * 16. A select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required.9 ***= 12.6. It may be apt to have regard to the following ratio laid down in Government of Orissa Vrs. Haraprasad Das, (1998) 1 SCC 487 = (1997) 5 SCR 338 = 1997 INSC 752: (Paragraph 9 of SCC) <It was contended by the learned counsel for the appellant-State that the Tribunal in giving the aforesaid directions has acted beyond its jurisdiction and that the said directions are illegal inasmuch as they are contrary to Rule 11 of the Rules. In our opinion, the contention deserves to be accepted. Merely because there were some vacant posts of Copyholders and the Director of the Press had recommended to the Government to fill up those posts it was not open to the Tribunal to direct the Government to fill up those posts even though it had good reasons not to do so. It should have been appreciated by the Tribunal that mere empanelment or inclusion of one9s name in the selection list does not give him a right to be appointed. So also if the Government decides not to make further appointments for a valid reason, it cannot be said that it has acted arbitrarily by not appointing those whose names are included in the selection list. Whether to fill up a post or not is a policy decision and unless it is shown to be arbitrary it is not open to the Tribunal to interfere with such decision of the Government W.P.(C) No.35330 of 2020 Page 45 of 100 (1) (2) and direct it to make further appointments. The Tribunal in directing the Government to make further appointments on the efficiency ground of public administration went beyond its jurisdiction. While giving such a direction what the Tribunal failed to appreciate was that the decision of the Government not to make further appointments was not challenged as arbitrary and it was challenged only on two grounds viz.: In between 09.08.1994 and 13.01.1995 there was no ban and, therefore, the Government could have appointed the respondents on the vacant posts, and the Government had made appointments in the same Press from out of a panel of Distributors, Builders, Type Suppliers, etc. which was prepared about 7 years back and, the Government had meted out discriminatory treatment to the respondents. The Tribunal did not find the action of the Government discriminatory possibly because as pointed out by the State in its counter filed before the Tribunal the selection list, prepared for Distributors, Binders, Type Suppliers, was of a different nature and character as it was prepared on the basis of a trade test which was confined to the in-service employees eligible for promotion to those posts under Rule 17 of the Rules. It may be recalled at the posts of Copyholders in the Government Press are base level Class III posts and are required to be filled up by direct recruitment from open market under Rules 10 and 11 of the Rules.= this stage therefore, that 12.7. Another Judgment of the Hon9ble Supreme Court of India rendered in the case of State of Odisha Vrs. Bhikari Charan Khuntia, (2003) Supp 3 SCR 986 may be referred to, where the following is the observation: W.P.(C) No.35330 of 2020 Page 46 of 100 <It cannot be lost sight of that because of certain circumstances and policy decision which were also brought to the notice of the High Court, appointments could not be made. The reasons which persuaded the Government to absorb those who were rendered surplus on account of abolition of octroi and the decision taken to to minimize abolish substantial number of posts expenditure cannot be said to be either extraneous or irrelevant for the purpose, to be ignored by the Court in according relief to the writ petitioners. But the High Court notwithstanding chose to give directions as quoted above. The appointments made in respect of some who got empanelled on regular selections made by the recruitment Board pursuant to the selection process undertaken does not give any sustenance to the writ petitioners to claim parity of treatment when their claims cannot be equated to those of such empanelled candidates.= 12.8. In the instant case, the undisputed fact rests on the evidence adduced by the opposite parties that the selection process has not been completed in respect of eleven posts out of twelve posts as advertised vide Notification No.PF/GDSMD, Karapada Branch Post Office, dated, at Chhatrapur, the 3rd October, 2013 (Annexure-1 to the writ petition) issued by the Government of India, Department of Posts in the Office of the Assistant Superintendent of Post Offices/Inspector of Posts, Chhatrapur Sub-Division in Ganjam District. Plausible explanation has been offered by the opposite parties justifying stopping of selection/engagement of all types of Gramin Dak Sevaks with effect from W.P.(C) No.35330 of 2020 Page 47 of 100 01.08.2016, supported by Letter No.17-23/2016-GDS, dated 01.08.2016 vide Annexure-R/4. Such action is not without any cogent purpose inasmuch as there has been <revised selection process for engagement to all approved categories of GDS posts= pursuant to instruction of Government of India, Ministry of Communication & IT, Department of Posts (GDS Section) vide Letter No.17- 39/7/2012-GDS, dated 28.05.2015. 12.9. It transpired from reading of reasons ascribed by the learned Central Administrative Tribunal in its Order dated 04.06.2020 that it is specific case of the opposite parties that in view of the subsequent circular dated 28.05.2015 which provided the cut-off date to be 30.06.2015 for inviting applications online, therefore, there was sufficient reasons not to issue any selection list or appointment letter in favour of the applicants- petitioners in pursuance of earlier advertisement in question. It is also recorded as a fact by the Central Administrative Tribunal that the petitioners at that stage cannot claim that they had any right for appointment to any particular post in question. Thus, it has come to the conclusion that the petitioners have failed to prove that the authorities have cancelled the recruitment process or had stopped it with any mala fide intention or oblique motive. W.P.(C) No.35330 of 2020 Page 48 of 100 12.10. The allegations are against the persons who have power and authority to engage GDS, but there is no allegation against the person who has issued instruction(s). None of the persons involved in stoppage of engagement of <all types of Gramin Dak Sevaks= have been impleaded as parties to rebut such allegations. Since the impugned Order of the Central Administrative Tribunal is in terms of the instructions contained in Letter dated 28.05.2015 read with Letter dated 01.08.2016, mere fact that selection process in connection with Advertisement dated 03.10.2013 has been directed to be stopped will per se not lead to say that the action is tainted with mala fides. The allegations of mala fide are easier to levy than to prove. 12.11. Therefore, the allegation that the appointment in respect of Khallikote RS Sub-Post Office is tainted with mala fides ignoring the candidature of petitioner No.3, who is claimed to be meritorious and eligible and <the authorities with a mala fide intention did not complete the selection procedure and waited till the Letter dated 01.08.2016= without impleading the person, who is said to have acted in a mala fide manner, is not sustainable. 13. Another pertinent aspect which is harped by Sri Sukanta Kumar Dalai, learned Counsel for the petitioners that the Central Administrative Tribunal misconstrued and misdirected while considering the W.P.(C) No.35330 of 2020 Page 49 of 100 objection of the opposite parties with respect to delay and laches on the part of the petitioners. By referring to paragraph 21 of the writ petition, it is strenuously urged by him that it is only after issue of Letter No.PG/27- 1391/2018, dated 07.05.2018 by the Department of Posts, India, Office of the Chief Post Master General, Odisha Circle, Bhubaneswar addressed to the Senior Superintendent of Post Offices, Berhampur Division, Berhampur, Ganjam District, instructing him to <enquire into the matter and take necessary action to resolve the grievance= of the petitioner No.1 with reference to complaint lodged by him on 23.03.2018, the cause of action for questioning inaction of the opposite parties arose. This triggered the petitioners to approach the Central Administrative Tribunal, Cuttack Bench, Cuttack, by way of filing O.A. No.630 of 2018. Sri Chandrakanta Pradhan, learned Senior Panel Counsel appearing for the opposite party Nos.1 to 5, would argue that in accordance with Letter dated 28.05.2015, the notification to fill up the remaining eleven vacant GDS posts stood cancelled automatically, as the selection process could not be concluded on or before the cut-off date, i.e., 30.06.2015, as stipulated in said instruction. Therefore, Sri Chandrakanta Pradhan made submission that the petitioners having not filed petition for condonation of delay as contemplated under Section 21 of the Administrative Tribunals Act, 1985, there is no W.P.(C) No.35330 of 2020 Page 50 of 100 scope for this Court to interfere with the Order dated 04.06.2020 passed by the learned Central Administrative Tribunal whereby it has been held that there has been delay by the petitioners in approaching the Tribunal by way of filing Original Application in which challenge has been made to Order dated 22.09.2015. 13.1. The learned Central Administrative Tribunal, Cuttack Bench, Cuttack at paragraphs 21 and 22 of its Order dated 04.06.2020 observed thus: <21. The Applicant has also not approached this Tribunal in time and there has been delay by him in approaching this Tribunal in this OA in which he has challenged the Order dated 22.09.2015. 22. Therefore, OA is barred by limitation and also devoid in is dismissed but of merit. Hence the OA circumstances without any cost.= 13.2. To ascertain the veracity of assertion of the petitioners that the original application was filed within time, vide Order dated 09.10.2023, this Court directed as follows: <Mr. Dalai, learned counsel for the petitioners is directed to produce the copy of the original application filed before the Central Administrative Tribunal, Cuttack (Tribunal) in this Court, which will reveal what relief was sought for from the Tribunal, so that the matter can be considered by this Court at this stage.= W.P.(C) No.35330 of 2020 Page 51 of 100 13.3. In obedience to such direction, on 12.10.2023 by way of Memo, the learned Counsel furnished copy of original application, which was before the learned Central Administrative Tribunal. 13.4. Scrutiny of said copy of original application depicts as follows: <3. Limitation.4 the Applicants is within the that That application limitation prescribed under Section 21 of the Administrative Tribunals9 Act, 1985. further declare the period of 8. Relief sought for.4 Under the circumstances it is most that this Hon9ble Tribunal may kindly graciously be pleased to allow this original application and calling the Respondents and upon hearing them to direct the Respondents to publish the result of the applicants in view of the to give advertisement under Annexure-1 and appointment their eligibility with considering retrospective service benefits. And pass such other relief/reliefs as would be deem fit and proper; 9. Interim order, if any prayed.4 i) further appointment To pass appropriate direction not to proceed with respect of aforesaid posts during pendency of the original application. in W.P.(C) No.35330 of 2020 Page 52 of 100 ii) To pass such other order/orders as would be deem fit and proper.= 13.5. A document forming part of said original application with heading <Synopsis and date chart= inter alia reveals the following: <18.10.2013 (Annexure-A/2) The applicants have applied for the post of GDS and the postal receipts are annexed herewith for kind perusal. 22.09.2015= (Annexure-A/3) Information under RTI Issued to the applicants showing the appointment in respect of one post and awaiting administrative approval in respect of other posts I.e. in respect of other 11 posts. 7.5.2018 = (Annexure-A/5): in Bhubaneswar The Asst. Director (P.G.), Office of the CPMG, Odisha the Circle, representation of the applicants directed to the Senior Superintendent of Post Offices, Berhampur Division, Berhampur to enquire into the matter and to take necessary action to resolve the grievance of the applicants.= considering 13.6. Glance at pleadings of the original application it is found explained as follows: <4.4. That, as it appears that the advertisement conditions the speaks of procedure for selection and as the applicants were eligible for the aforesaid posts and with a hope to the conditions of service and W.P.(C) No.35330 of 2020 Page 53 of 100 on i.e. the applicants approached before get a job to eke out their livelihood had applied for the same awaiting the result of the advertisement. When the authorities did not communicate any result the thereto, Respondents to obtain information in relate to result of the advertisement but in vain. Lastly in the year Senior 2015 Superintendent of Post Offices, Berhampur Division, Berhampur, in giving reply to the queries made by the applicant under RTI Intimated that they have given appointment in respect of one centre and in respect of others administrative approval has not been received. Copy of the Letter dated 22.9.2015 is annexed herewith as Annexure-A/3. 22.9.2015 the 4.5. That, it is also pertinent to mention here that In the meantime the applicants have approached from pillar to posts to obtain instruction about their result, but reason best known to the authorities, the grievance of the applicants is yet to be mitigated. Copies of the relevant documents are annexed herewith as Annexure- A/4 series. Bhubaneswar 4.6. That, while this was the position on 7.5.2018, the Asst. Director (P.G.), Office of the CPMG, Odisha Circle, the representation of the applicants directed to the Senior Superintendent of Post Offices, Berhampur Division, Berhampur to enquire into the matter and to take necessary action to resolve the grievance of the applicants. Copy of the letter dated 7.5.2018 is annexed herewith as Annexure-A/5. considering in 4.7. That, the cause of action arose to approach this Hon9ble Court, when inaction of the respondents noticed by the applicants in not taking action in Page 54 of 100 W.P.(C) No.35330 of 2020 to the letter dated 07.05.2018 and pursuant compelled the applicants to approach this Hon9ble Court by way of present form.= 13.7. Perusal of the aforesaid contents of the original application it is emerged that the petitioners were within their knowledge that their applications were not considered due to want of necessary administrative approval as contained in Letter dated 22.09.2015. It seems in order to cover up the limitation and by-pass requirement of Section 21 of the Administrative Tribunals Act, 1985, they have approached the Assistant Director (PG), Office of the CPMG, Odisha Circle, Bhubaneswar on 23.03.2018, as is revealed from the Letter bearing No.PG/27-1391/2018, dated 07.05.2018 (Annexure-5 to the writ petition), whereby said authority had directed the Senior Superintendent of Post Offices, Berhampur Division, Berhampur to inquire into the grievance of the petitioners. However, it has been admitted case of the petitioners, as is apparent from the narration in the original application as referred to above, that they have been made aware of non-consideration of their applications on account of necessary approval from higher authority on or around 22.09.2015. 13.8. Further scrutiny of the original application filed before the Central Administrative Tribunal, copy of which is made available to the Court as furnished by the petitioners, does not show filing of any application W.P.(C) No.35330 of 2020 Page 55 of 100 praying for condonation of delay. Since the learned Central Administrative Tribunal observed as a matter of fact that the petitioners have questioned the action of 22.09.2015, the Original Application was apparently beyond the prescribed period of limitation as provided under Section 21 of the Administrative Tribunals Act, 1985. As regards the limitation in paragraph 3 of the Original Application, it is contained as <the Applicants further declare that the application is within the period of limitation prescribed under Section 21 of the Administrative Tribunals9 Act, 1985=. This averment clearly indicates that the petitioners were all along asserting that they had filed original application within period of limitation stipulated in the statute, but in fact, it was not so. 13.9. The Hon9ble Supreme Court of India in Secy. to Govt. of India Vrs. Shivram Mahadu Gaikwad, 1995 Supp (3) SCC 231, taking cognizance of requirement of disclosure of limitation in terms of Section 21 of the Administrative Tribunals Act, 1985, held as follows: <The learned counsel for the Union of India raised a preliminary contention, namely, that the application was filed almost after about four years from the date of discharge and, therefore, it was clearly barred by Section 21 of the Administrative Tribunals Act, 1985. *** When we turn to the Judgment of the Tribunal we find that there is no mention about the question of limitation even though it stared in the face. It would immediately occur to anyone W.P.(C) No.35330 of 2020 Page 56 of 100 that since the order of discharge was of 07.10.1986 and the application was filed in 1990, it was clearly barred by limitation unless an application for condoning the delay was made under Section 21(3) of the Administrative Tribunals Act. No such application was in fact made. Even if it was the contention of the employee that he was suffering from schizophrenia, that could have been projected as a ground for condonation of delay under sub- section (3) of Section 21 of the said statute. Even otherwise without insisting on the formality of an application under Section 21(3) if the Tribunal had dealt with the question of limitation in the context of Section 21 we may have refrained from interfering with the order of the Tribunal under Article 136, but it seems that the Tribunal totally overlooked this question which clearly stared in the face. Even the employee made no effort to explain the delay and seek condonation. We find no valid explanation on record for coming to the conclusion that the case for condonation of delay is made out. In the circumstances, there is no doubt that the application was clearly barred by is also difficult to understand how the Tribunal could have awarded full back wages even for the period of delay for which the employee was solely responsible. However, since application itself is barred by limitation under Section 21 of the Administrative Tribunals Act, it deserves to be dismissed.= limitation. It 13.10. In this case the learned Central Administrative Tribunal took note of the delay in approaching it by the petitioners and held that the original application is hit by limitation prescribed under Section 21 of the Administrative Tribunals Act. It is, therefore, necessary to have a look at the provisions of Sections 20 and 21 of W.P.(C) No.35330 of 2020 Page 57 of 100 the Administrative Tribunals Act, 1985, which stand thus: <20. Applications not to be admitted unless other remedies exhausted.4 (1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances. (2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances,4 (a) if a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rejecting any appeal preferred or representation made by such person in connection with the grievance; or rules, (b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired. preferred appeal the to (3) For the purposes of sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or to the Governor of a State or to any other functionary shall not be deemed to be of one of the remedies which W.P.(C) No.35330 of 2020 Page 58 of 100 are available unless the applicant had elected to submit such memorial. 21. Limitation.4 (1) A Tribunal shall not admit an application,4 (a) (b) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of Section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made; in a case where an appeal or representation such as is mentioned in clause (b) of sub- section (2) of Section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months. (2) Notwithstanding anything contained in sub-section (1), where4 (a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates; and (b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal, if it is W.P.(C) No.35330 of 2020 Page 59 of 100 made within the period referred to in clause (a), or, as the case may be, clause (b), of sub- section (1) or within a period of six months from the said date, whichever period expires later. (3) Notwithstanding anything contained in sub-section (2), an application may be (1) or sub-section admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period.= 13.11. In the context of delay in approaching the forum, in order to institute duly constituted lis it is the petitioners who are to explain the same with cogent material and pleading germane fact with a separate application. Discussing the gamut and purport of <sufficient cause= as envisaged under Section 21 of the Administrative Tribunals Act, this Court in Union of India Vrs. Biswanath Kumar, 2023 SCC OnLine Ori 5222, made the following observation: <16. In State of U.P. Vrs. Manbodhan Lal Srivastava, AIR 1957 SC 912, the apex Court held that the use of word <shall= is a presumption that the particular provision is imperative. As such, instances have been taken on Rule 57(2) of the Schedule-II to the Income Tax Act, 1961, which provides that the full amount of purchase of money payable <shall= be paid by the purchaser to the Tax Recovery Officer on or before the fifteenth day from the date of sale of property. Thereby, by using the word <shall=, the W.P.(C) No.35330 of 2020 Page 60 of 100 17. 18. 19. 20. apex Court held that it is mandatory on the part of the purchaser to pay the full amount to the Tax Recovery Officer. As such, following this principles, the apex Court time and again held similar view in various subsequent judgments and ultimately got approval in the case of Pesara Pushpamala Reddy Vrs. G. Veera Swamy, (2011) 4 SCC 306. In C.N. Paramsivam Vrs. Sunrise Plaza, (2013) 9 SCC 460, the apex Court relying upon the word <shall= as well as the earlier decision of the Court on pari materia provision in Order XXI of the CPC, held that making of intending purchaser is mandatory. the deposit by the In Sainik Motors Vrs. State of Rajasthan, AIR 1961 SC 1480, Hon9ble Justice Hidayatullah observed that the word <shall= is ordinarily mandatory but it is sometimes not so interpreted if the context or the intention otherwise demands and points out. In State of U.P. Vrs. Babu Ram, AIR 1961 SC 751, Hon9ble Justice Subarao, observed that when a statute uses the word <shall=, prima facie it is mandatory, but the court may ascertain the real intention of the Legislature by carefully attending to the whole scope of the statute. In Vijay Dhanuka Vrs. Najima Mamtaj, (2014) 14 SCC 638, the apex Court, while interpreting Section 202 of the the Cr.P.C., which provides Magistrate <shall= in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as that W.P.(C) No.35330 of 2020 Page 61 of 100 he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding, held that the word <shall= is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. However, on looking at the intention of the Legislature, the Court found that the provision is aimed at preventing innocent persons from being harassed by unscrupulous persons making false complaints, and therefore the inquiry or investigation contemplated by the provision before issuing summons was held to be mandatory. 21. Taking into consideration the aforementioned analogy, applying the provisions under Section 21(1) and considering the legislative intent attached to the provisions, it is made clear that using the word <shall= the legislature have put a mandate, i.e., mandatory condition on the Tribunal to entertain the Original Application in connection with the grievance of the applicant within one year from the date on which such final order has been made. On perusal of the provisions contained under Section 21(1) and (2), it is crystal clear that in a case where an appeal or representation such as is mentioned in Clause (b) of Sub-section (2) of Section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period, the Tribunal can admit an application, whereas Sub- that section notwithstanding anything contained in Sub-section (1) where the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the (2) of Section 21 makes clear W.P.(C) No.35330 of 2020 Page 62 of 100 jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates, but no proceedings for the redressal of such grievance had been commenced before the said date before any High Court. The application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or as the case may be, clause (b), of Sub-section (1) or within a period of six months from the said date, whichever period expires later. Sub- section (3) of Section 21 states by using non- that notwithstanding anything abstante clause contained in Sub-section (1) or Sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of Sub- section (1) or, as the case may be, the period of six months specified in Sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period. The using of word <notwithstanding=, a non-obstante clause, under Sub-section (3) of Section 21 gives overriding effect over the provisions. In Union of India Vrs. G.M. Kokil, 1984 Supp SCC 196 = AIR 1984 SC 1022, the apex Court held that a clause beginning with <notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force=, is sometimes appended to a section in the beginning, with a view to give the enacting part of the section in case of conflict an overriding effect over the provision or Act mentioned in the non-obstante clause. 22. 23.
Decision
order against 816. The Division Bench of the High Court seems to have approached the case as though it was an the appeal the administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority the Disciplinary Committee of the High Court) is the sole judge of the facts, if the enquiry has been legal properly position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution.9 conducted. The settled is not a matter this case (in W.P.(C) No.35330 of 2020 Page 87 of 100 11. In State Bank of Bikaner and Jaipur Vrs. Nemi Chand Nalwaya, (2011) 4 SCC 584, this Court held that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be ground for interfering with the findings in departmental enquiries. The Court held as under: 87. the It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the for evidence will not be grounds in findings interfering with departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous W.P.(C) No.35330 of 2020 Page 88 of 100