Union of India & Others Vs. Bikash Kuanar  Insc 640 (11 October 2006)
B. Sinha & Dalveer Bhandari
out of SLP (C) No. 15966 OF 2003] Dalveer Bhandari, J.
appeal is directed against the judgment of the Division Bench of the High Court
of Orissa at Cuttack in Original Jurisdiction Case No.
8819 of 1999.
facts of the case are as follows:
Bikash Kuanar's father was working as an Extra Development Delivery Agent (for
short, 'EDDA') in Narangochha B.O. and, on his superannuation a vacancy arose
in the said post. The respondent herein had applied for the said post. In the
process of selection, the respondent was selected and posted vide order dated
2.7.1998. Pursuant to the said order, the respondent joined the service. The
respondent, to his utter surprise and astonishment, on 2.1.1999 received a
letter, wherein it was stated that the selection vis-`-vis the appointment of
the respondent was reviewed and, thereafter, his appointment had been
respondent, aggrieved by the said order dated 2.1.1999, filed an application
before the Central Administrative Tribunal. A counter affidavit was filed by
the appellants before the Tribunal. It was stated in the counter affidavit that
an open advertisement was issued and in response to the same, the respondent
herein and two other candidates, namely, Pitamber Majhi and Seshadeba had
applied for the said post. One Pitamber Majhi secured 348 marks in the
matriculation examination as against 298 marks secured by the respondent.
to the appellants, both these candidates Pitamber Majhi and Seshadeba were
wrongly rejected on wholly untenable grounds, therefore, the higher authority
in the department had reviewed the case of the appointment of the respondent
and opined that the appointment of the respondent to the said post was illegal
and, consequently, cancelled the same. This, of course, was done after taking
into consideration the representation of the respondent.
Central Administrative Tribunal dismissed the respondent's application and
thereafter the respondent preferred a writ petition before the High Court,
which was decided by the Division Bench of the High Court of Orissa.
Division Bench after hearing the counsel for the parties observed that the
power of review is conferred by the statute. In case of an appointment made
under the Rules framed for the purpose of appointment, such appointment could
not be cancelled either by the same authority or higher authorities in exercise
of power of administrative exigency.
High Court in the impugned judgment also stated that the civil rights had
already accrued to the respondent who rendered one and a half years of service.
such civil rights had accrued, the authorities exercising their executive power
cannot review the appointment.
Division Bench held that the administrative instructions have no statutory
force, therefore, these cannot be enforced and following such instructions, the
respondent's appointment could not be legally cancelled.
Division Bench also directed that the respondent be given an opportunity to
resume his duties within 30 days from the date of its order.
appellants, aggrieved by the said judgment, preferred a special leave petition
before this Court. We have heard the learned counsel for the parties at length.
S. Doabia, the learned senior counsel appearing for the appellants, submitted
that once an irregular or unconstitutional appointment has been made, the
higher authorities have the power to review the appointment.
the Department has issued OM No. 19- 15/2002-GDS dated 9.5.2003 which empowers
the superior authority to rectify the irregularity in such cases on its motion
or otherwise. Mr. Doabia contended that the power to rectify any irregularity
cannot be questioned. Mr. Doabia also contended that an employee who has been
appointed irregularly cannot claim any right of recruitment. Nevertheless, the
respondent was given a show-cause-notice under the rules before his appointment
was terminated. He further submitted that, in the instant case, the respondent
and other two candidates applied for the post of EDDA. Admittedly, all the
candidates possessed not only the minimum educational qualification required
for the said post, i.e., VIII standard but were matriculates. Though the
respondent in all respects was qualified to be appointed to the said post but
according to the appellants one Pitamber Majhi had secured higher marks than
the respondent in the matriculation examination and his claim could not have
been ignored. According to the appellants the irregularity which had crept in
with regard to appointment to the said post could not be perpetuated for
eternity. Therefore, the higher authorities of the department were justified in
rectifying the irregularity.
Division Bench did not accept the plea of the appellants being contrary to law.
In this view of the matter it has become imperative to examine correct position
matter relating to appointment or recruitment of EDDA is not governed by any
statute but by departmental instructions. It is now trite that if a mistake is
committed in passing an administrative order, the same may be rectified.
Rectification of a mistake, however, may in a given situation require
compliance of the principles of natural justice. It is only in a case where the
mistake is apparent on the face of the records, a rectification thereof is
permissible without giving any hearing to the aggrieved party.
respondent was recruited not only on the basis of marks obtained by him in the
matriculation examination but also upon consideration of various other criteria
necessary therefor. He filed all necessary and requisite documents. The
candidature of all the candidates has been considered on their own merits.
because one Pitamber Majhi had obtained higher marks in the matriculation
examination, the same by itself should not have been a ground for cancelling
the order of recruitment passed in favour of respondent.
Selection Committee recommends selection of a person, the same cannot be
presumed to have been done in a mechanical manner in absence of any allegation
of favouritism or bias. A presumption arises in regard to the correctness of
the Official Act. The party who makes any allegation of bias or favouritism is
required to prove the same. In the instant case, no such allegation was made.
The selection process was not found to be vitiated. No illegality was brought
to our notice. In this view of the matter, we are of the opinion that the said Pitamber
Majhi by reason of higher marks obtained by him in the matriculation
examination also cannot be said to be a better candidate than the respondent
herein. In this view of the matter, we do not find any fault with the impugned
judgment of the High Court.
Division Bench of the High Court, in our considered view, correctly applied the
law, which has been crystallized in a number of decisions of this Court.
the respondent has fulfilled all the essential terms and conditions for the appointment
to the said post. The respondent alone had submitted all necessary and required
documents before the date prescribed by the appellants. It may also be
pertinent to mention that at the time of selection the respondent was the only
one who had the experience of working continuously on the said post for a
period of one and a half years. Perhaps, all these factors cumulatively
persuaded the concerned authorities to select the respondent to the said post.
considered view, no interference is called for in the impugned judgment. The
appeal, being devoid of any merit, is accordingly dismissed.
facts and circumstances of the case, we direct the parties to bear their own