of Orissa & Anr Vs. Abhaya Kumar Das
& Ors  Insc 230 (20 February 2008)
Sema & Markandey Katju
O R D
APPEAL NOS.2151-2154 OF 2002 WITH CIVIL APPEAL NOS. 2148-2150 OF 2002
by the order of the Division Bench of the High Court of Orissa, these appeals
have been preferred.
learned counsel for the parties.
brief facts are as followed:
to advertisement for selection of junior grade typists, altogether 871
candidates were empanelled for appointment. The list was published on
3.12.1987. Amongst the 871 selected candidates, 845 belong to general category
and 27 candidates belong to scheduled caste category. Out of 845 of general
category candidates, 184 were duly appointed. All the 27 candidates of schedule
castes were also appointed.
remaining general category candidates who were not appointed, though selected,
approached the tribunal. The tribunal directed the State to give them
appointment by Order dated 1.3.1993. It is stated that the order of the
tribunal has not been challenged. However, since there was no compliance with
the order of the tribunal, a writ petition was preferred before the Division
Bench of the High Court. The Division Bench by its impugned order directed that
the respondents should be given appointment. Aggrieved thereby, these Special
Leave Petitions have been filed by way of Special Leave.
first difficulty that we face in these cases is that the selection list was
published on 3.12.1987. Today we are in 2008. The second difficulty is that by
now it is a well settled principle of law that a selectee does not have an
indefeasible right for appointment, and, therefore, by virtue of being selected
no enforceable right has accrued to the selected candidates. This has been held
by a catena of judgments of this Court. Also we are dismayed to note that the
High Court directed the respondent (appellant herein) to implement the order of
the tribunal, as if the High Court is sitting as an Executing Court in exercise of the power under Article
226 of the Constitution. The High Court's power under Article 226 of the
Constitution is available only in the case of miscarriage of justice and where
there is error of law apparent on the face of the record. A High Court
exercising its power under Article 226 cannot act as an Executing Court.
view, therefore, the order of the High Court and the tribunal are not
sustainable in law. Therefore, they are accordingly set aside.
appeals are allowed.