SUPREME COURT OF INDIA
Union of India and Others
Vs
Bikash Kuanar
Civil Appeal No. 4388 of 2006
(S. B. Sinha and Dalveer Bhandari, JJ)
10.10.2006
DALVEER BHANDARI, J.
Leave granted.
2. This 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.
3. Brief facts of the case are as follows:
Respondent 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 visa-vis the
appointment of the respondent was reviewed and, thereafter, his appointment had
been cancelled.
4. The 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.
5. According 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.
6. The 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.
7. The 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.
8. The 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. Once such civil rights had accrued, the authorities exercising their
executive power cannot review the appointment.
9. The 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.
10. The Division Bench also directed that the respondent be given an
opportunity to resume his duties within 30 days from the date of its order.
11. The 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. Mr. T 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.
Moreover, 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. The 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 of law.
12. The 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.
13. The 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.
Only because one Pitamber Majhi had obtained higher marks in the matriculation
examination, the same by itself should not have been a ground for canceling the
order of recruitment passed in favour of respondent.
14. When a 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 favoritism or bias. A presumption arises in regard to the correctness of the
Official Act. The party who makes any allegation of bias or favoritism 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.
15. The 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.
16. Indisputably, 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.
17. In our considered view, no interference is called for in the impugned
judgment. The appeal, being devoid of any merit, is accordingly dismissed.
18. In the facts and circumstances of the case, we direct the parties to bear
their own costs.