Union of India &
Ors. Vs. Shantiranjan Sarkar  INSC 64 (13 January 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. _______OF 2009 (Arising
out of SLP (C) No. 23770 of 2005) Union of India & Ors. .... Appellants
Versus Shantiranjan Sarkar .... Respondent
S.B. SINHA, J.
are before us aggrieved by and dissatisfied with the judgment and order dated
11.04.2005 passed by a Division Bench of the High Court of Calcutta, Circuit
Bench at Port Blair whereby and whereunder the writ petition filed by the
respondent herein was allowed.
basic fact of the matter is not in dispute.
An advertisement was
issued for filling up the post of Postman/ Mail Guard under the quota of
Extra-departmental candidate at Andaman and Nicobar Island, Port Blair.
Respondent herein pursuant thereto or in furtherance thereof applied for the
said post. He appeared at an examination held for the said purpose. On or about
18.11.1997, the purported results of the said examination were published with
the remarks "none qualified".
some other examinations were also held in which the respondent participated.
Indisputably, he was a member of the Scheduled Caste. He filed several
representations before the concerned various authorities contending that his
candidature had not been considered despite the fact that he had obtained more
than 30% of marks which was the cut-off mark for the members of the Scheduled
Castes and Scheduled Tribes. As the said representations were not responded to,
he filed an original application before the Central Administrative Tribunal,
Calcutta Bench, Kolkata. The said original application was dismissed on
12.9.2003 on the ground of limitation as also on merit, stating:
respective contentions of the ld.
Counsels for both
sides, we find that the applicant having not been qualified in the written test
as well as in the interview does not acquire any legal or enforceable right to
seek employment for the 3 post. In the result, the application is dismissed
without any order as to cost."
filed a writ petition before the High Court questioning the legality and/or
validity of the said judgment and order which was marked as WP CT No. 194 of
2003. The said writ petition was initially dismissed on 9.7.2004 by a Division
Bench of the Calcutta High Court, stating:
although, we do not approve the reason assigned by the Tribunal, we are not
inclined to entertain this application as the ultimate conclusion of the
Tribunal that the petitioner was not entitled to get any relief was correct. As
indicated above, the Tribunal ought to have rejected the application only on
the ground of limitation."
a review application filed thereagainst was allowed. By reason of the impugned
judgment dated 11.04.2005, the High Court has allowed the said writ
B. Datta, learned Additional Solicitor General appearing on behalf of the
appellants, would contend:
(i) the High Court
committed a serious error insofar as it failed to take into consideration that
having regard to the fact that the 4 respondent failed to pass the tests held
in the year 1997 and furthermore, having appeared in the subsequent
examinations, had no right to be appointed and no direction for his appointment
in the post of Peon or Group `D', thus, could be issued by the High Court.
having applied against the vacancy in the `OC' category and not in the category
of `Scheduled Caste', it was obligatory on him to obtain the qualifying marks
of 45% which he having failed to obtain, the impugned judgment is wholly
Sarda Devi, learned counsel appearing on behalf of the respondent, however,
would support the impugned judgment.
adverting to the contentions raised before us by the learned counsel for the
parties, we may notice that the appellants suppressed a material fact. It
appears that the fact that the High Court had recalled its earlier order dated
9.07.2004 by an order dated 30.11.2004 had not been mentioned in the list of
dates. This Court, therefore, must have proceeded on the basis that the
impugned order was passed on a review application and not in the original writ
proceedings. We do not find appropriate words to 5 deprecate such a practice
and that too by the Union of India. We should have dismissed the Special Leave
Petition on this ground alone.
Let us, however, also
consider the merit of the matter.
fact that the respondent is a member of Scheduled Caste is not in dispute. His
name figured at Sl.No. 124 of the seniority list of Dak Sevakas in A & N
Islands Divisions, Port Blair. It has not been denied or disputed before us
that in Central Administrative Services, a person belonging to Scheduled Caste
in any State would be deemed to be a member of the Scheduled Caste.
therefore, should have been treated to be a member of `Schedule Caste' for the
purpose of consideration of his candidature.
High Court in its impugned order categorically held that the appellants at no
point of time denied or disputed that the respondent had obtained marks more
than 30% but less than 45%. The High Court furthermore noticed that the
notification dated 9.06.1989 issued by the Director of Postal Services, A &
N Islands in categorical terms stated that his status of the Scheduled Castes
should be accepted and recognized in the department examination. A member of a
Scheduled Caste, thus, notified in any of the States within the territories of
India, having regard to the 6 provisions contained in Article 341 of the
Constitution, was entitled to get the benefit of the said status for the
purpose of entering into Central Civil Service..
High Court furthermore has rightly held that as a member of the Scheduled
Caste, the respondent was entitled to the benefit of the lower percentage of
marks, viz., 30% in the departmental examination for promotion from the post of
Extra-Departmental Mail Guard to the Post of Peon or Group `D'.
thus, for the reasons known to the respondent that he was entitled to the
benefit of the status of the Scheduled Caste in the Andaman and Nicobar
Islands, irrespective of the fact that the advertisement issued recognized only
two categories of reserve categories, viz., Scheduled Tribes and `OC', there
was no reason to deprive the respondent from the said benefit. Respondent,
therefore, was not appointed because of a mistake committed on the part of the
authorities of the appellants. They, thus, cannot be permitted to take
advantage of the same.
that view of the matter, the delay in filing the original application should
not be held to be a bar in granting him an equitable relief. Union of India as
a benevolent litigant cannot be permitted to take advantage of its own wrong.
Furthermore, the appellants are guilty of suppression of 7 material facts
before this Court. It, in its list of dates, did not state that the original
order of the High Court dated 9.07.2004 had been recalled and reviewed by the
Division of the said Court by an order dated 30.10.2004.
the reasons aforementioned, the impugned judgment should not be interfered with
and is directed accordingly. The appeal is dismissed with costs. Counsel's fee
assessed at Rs.1,00,000/-.