REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5304 OF 2008 (Arising out of SLP (C) No.5964 of 2006)

Chief Executive Officer, N.S.S.O. & Ors. … Appellants

Versus

Biswa Bhusan Nandi … Respondent

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Respondent  joined  the  Indian  Air  Force  on  22.2.1978.   He

rendered more than 15 years’ of service in the said organization having

worked till 28.2.1993.

3. The Department  of Personnel  and Training issued a notification

dated 12.2.1986 in terms whereof, those candidates who were matriculate

and having put in not less than 15 years’ of service in Armed Forces etc.

were to be considered for appointment to any Group – C post to which

essential qualification is graduation and where experience in technical or

professional nature is not essential.

4. Appellant  herein  –National  Survey  Organization  is  established

under  the  Department  of  Statistics  of  the  Government  of  India.   The

service conditions of its employees are governed by the Rules framed by

the  President  of  India  in  exercise  of  his  power  under  the  proviso

appended to Article 309 of the Constitution of India.  In terms of the said

notification,  amendment  had  been  carried  out  in  Ex-Servicemen  (Re-

employment in Central Civil Services and Posts) Rules, 1979.   

In Rule 6 of the said Rules, after sub-rule (3), the following sub-

rules were inserted :

“(4) For appointment to any reserved vacancy in  Group  ‘C’  posts,  a  matriculate  Ex- servicemen  (which  term  includes  an  ex- servicemen who has obtained the Indian Army Special  Certificate  of  Education  or  the corresponding certificate in the Navy or the Air Force), who has put in not less than 15 years of service in the Armed Forces, of the Union may be  considered  eligible  for  appointment  to  the posts  for  which  the  essential  educational qualification  prescribed  is  graduation  and where,—

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(a) Work  experience  of  technical  or professional nature is not essential; or

(b)Though  non-technical  profession  work experience is prescribed as essential yet the appointing authority is satisfied that the ex- serviceman is expected to perform the duties of the post by undergoing on the job training for a short duration.”

After Rule 6, the following rule was inserted :

“6-A.  Lower  Standard  for  selection:—In  the case of direct recruitment, if sufficient number of  candidates  belonging  to  ex-servicemen  are not available on the basis of general standard to fill  all  the  vacancies  reserved  for  them, candidates,  belonging  to  the  category  of  ex- servicemen  may  be  selected  under  a  relaxed standard of selection to make up the deficiency in the reserved quota a subject to the condition that such relaxation will not affect the level of performance by such candidates.”

5. Appellant  organization  issued  a  notification  for  filling  up  56

vacancies for the post of Data Entry Operator, Grade B, pursuant whereto

the  respondent  also  applied.   He  was  permitted  to  sit  in  the  written

examination. He was also interviewed.   

An  office  memorandum  was,  however,  issued  on  12.2.1996

whereby he was denied appointment.   

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6. An original  application  was  filed  by  the  respondent  before  the

Central  Administrative  Tribunal  challenging  the  validity  of  the  said

order.   

The Tribunal, by reason of a judgment and order dated 15.7.2003

dismissed the said application, stating :

“We  have  been  taken  through  a  notification passed  by  the  Department  of  Personnel  & Training.   In  the  said notification  it  has  been clearly  stated  that  while  a  defence  personnel has  put  in  15  years  of  service  he  can  be considered  for  being  employed  in  the  post where  graduation  qualification  is  prescribed. So far as his employment is concerned, where the qualification is prescribed as graduation, the applicant can no doubt be considered, but in the instant case the respondents have prescribed the qualification of graduation with Mathematics or Statistics  as  one  of  the  subjects.   In  the notification  it  was  advertised  that  the  person having graduate qualification with mathematics or  Statistics  shall  be  considered,  but  the applicant  did  not  possess  either  qualification. Therefore, the respondents could not be found fault  with  for  having  not  considered  the applicant’s  application  for  the  post  of  Data Entry Operator.”

7. Aggrieved by and dissatisfied therewith the appellant filed a writ

petition  before  the  Calcutta  High Court.   By reason  of  the  impugned

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judgment, the said writ petition was allowed by a Division Bench of the

said Court, opining :

“Here  in  the  present  case,  the  petitioner  was allowed to sit  for such written test  as  well  as viva-voce test  and, admittedly, he qualified in both the tests.  This significant aspect does not appear to have been taken into consideration by the  Tribunal  which  being  guided  by  the technicalities  in  interpreting  the  qualification required  for  being  eligible  to  recruit  as  Data Entry Operator.   It  cannot  be  denied  that  the petitioner  was  having  the  reasonable expectation in view of his passing of the written test and viva voce test.  Therefore, the question remains as to how far the authority was justified in refusing to give appointment to the petitioner on  the  ground  that  the  notification  dated 12.2.1986 brought  him at  par  with the people having qualification as graduate but in view of the  specific  qualification  required  for recruitment to the post of Data Entry Operator, the present petitioner could not have any claim. In the peculiar background of the present case, as indicated hereinbefore, we find it difficult to accept this contention.  Here the petitioner not only passed both the written and the viva voce tests,  being  an  Ex-Serviceman  having  putting more  than  15  years  of  service  in  Indian  Air Force,  his  matriculation  qualification  brought him at  par  with  those  having  graduation.   In absence  of  any  clarifying  clause  in  the notification dated 12.2.1986, it may be unjust in the background of the present case to deny the petitioner an appointment mainly on the ground that the essential qualification required for the post  of  Data  Entry  Operator,  Gr.B,  was graduation with Mathematics and Statistics.  In

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such circumstances, we are unable to accept the contentions made by the learned counsel for the respondent  authorities  and  in  our  view,  the stand  taken  by  the  Tribunal  is  inherently inappropriate.”

It was directed :

“In  these  circumstance,  the  order  impugned dated 15.7.2003 passed by the Tribunal  is  set aside.  The respondent authorities are directed to  accommodate  the  petitioner  in  the  post  of Data Entry Operator, Gr.B, within a period of three months from the date of communication of  this  order  and  for  any reason it  cannot  be made  possible,  the  present  petitioner  may be accommodated  in  a  suitable  alternative  post within the said period.”

8. Mr. V. Shekhar, learned senior counsel appearing on behalf of the

appellant, would content that as was rightly held by the learned Tribunal

that it was not a case where the eligibility criterion was graduation in any

stream simplicitor as the candidate was required to be a graduate having

mathematics or Statistics as a compulsory subject.   

9. It is not a case where work experience of technical or professional

nature was essential.  Even in a case where experience in non-technical

professional work was experience although prescribed as essential yet in

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a case where the appointing authority is satisfied that the ex-serviceman

is  expected  to  perform his  duties  in  the  post  by  undergoing  ‘on  job

training’  for  a  short  duration  in  terms  of  sub-rule  4  of  Rule  6,  as

amended, such appointment could have been made.

10. The  High  Court,  keeping  in  view  the  peculiar  facts  and

circumstances  of this  case,  did  not  direct  that  the respondent  must  be

appointed  in  the  post  of  Data  Entry  Operator,  Grade  B.   What  was

observed by the High Court was that he deserved to be accommodated

for the post for which he had submitted the application.  The High Court

furthermore opined that if for some reason, it is not possible to appoint

him  in  the  post  of  Data  Entry  Operator,  the  respondent  may  be

accommodated on a suitable alternative post within the period specified

therein.  The said order indisputably has not been complied with.   

11. An application was filed by the appellant for extension of the said

period before the Division Bench of the High Court.  By an order dated

31.8.2005, it was directed :

“The time as granted by the said order to the respondent  authorities  for  accommodating  the petitioners in the post  of Data Entry Operator (Gr.B), or any other alternative suitable post as per  the  said  order  shall  stand  extended  by  a further period of three months from date.”

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12. A special leave petition was filed before this Court questioning the

correctness  of  the  aforementioned  judgment  of  the  High  Court  on  or

about  2.1.2006.   Appellant  did  not  make any effort  for  taking  up the

matter urgently.   

Despite  pendency  of  the  special  leave  petition,  an  application

again  was  filed  before  the  Calcutta  High Court  in  February  2006  for

extension  of  time.   The  High  Court  was  given  an  assurance  that  the

competent authorities of the appellant would certainly comply with the

earlier  directions  of  the  Court.   Only  on  the  basis  of  the  said

representation, by an order dated 17.1.2006 the High Court directed :

“While  seeking  extension  of  time  to  comply with  the  direction  of  this  Court,  it  is categorically submitted by the learned counsel for the respondent that if some time is given the authority concerned will certainly comply with the earlier direction in a way of accommodating the  petitioners  in  the  post  of  Data  Entry Operators  (Group  ‘B’)  or  in  any  other alternative  suitable  post.   Though  opposed, such time is  granted  till  31st March,  2006,  as prayed for, and it is expected that the Court will not  be embarrassed any further and in default resulting severe consequences.”

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13. In the aforementioned circumstances, in our opinion, it is not a fit

case where this Court should exercise its discretionary jurisdiction under

Article  136 of  the Constitution  of India.   Appellant  nowhere took the

stand that even upon grant of some training, the respondent would not be

able to perform the job of a Data Entry Operator.  It is also not their case

that there was no vacancy in any other post.  The appellant also does not

say  that  it  committed  any  mistake  in  verifying  the  application  for

recruitment filed by the respondent. He was not only permitted to appear

at  the  written  examination  but  was  also  permitted  to  appear  in  the

interview.   

14. We are not oblivious of the fact that filing of an application for

extension of time to comply with the order of the High Court by itself

would not be a bar to the appellant for filing a special leave petition; but

in this case, an assurance was given to the High Court that the respondent

shall be accommodated, despite filing of the special leave petition.

15. In view of the exceptions carved out, the eligibility clause and as

the post is non-technical in nature and, thus, no experience on technical

side  was  necessary,  we  do  not  think  that  the  appellant  should  be

permitted to come out of the representation made by it before the High

Court.   

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We have noticed hereinbefore the tenor of the order passed by the

High Court on 12.2.2006.  For all intent and purport, an assurance had

been given to the High Court that its order shall be complied with.  The

promise made was absolute and unequivocal in nature.  We, therefore, do

not  think  it  to  be  a  proper  case  for  exercise  of  our  discretionary

jurisdiction under Article 136 of the Constitution.

16. For the reasons aforementioned, the impugned judgment needs no

interference.  The appeal is dismissed accordingly with costs.  Counsel’s

fee assessed at Rs.50,000/- (Rupees fifty thousand only).

.……………………….J. [S.B. Sinha]

……………………..…J.     [Cyriac Joseph]

New Delhi; August 29, 2008

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