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CASE NO.: Appeal (civil)  4388 of 2006

PETITIONER: Union of India & Others

RESPONDENT: Bikash Kuanar

DATE OF JUDGMENT: 11/10/2006

BENCH: S. B. SINHA & DALVEER BHANDARI

JUDGMENT: J U D G M E N T [Arising out of SLP (C) No. 15966 OF 2003]

Dalveer Bhandari, J.

       Leave granted.

       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.         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 vis-‘-vis the  appointment of the respondent was reviewed and,  thereafter, his appointment had been cancelled.          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.    

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.   

The Central Administrative Tribunal dismissed the  respondent’s application and thereafter the respondent  preferred a writ petition before the High Court, which was

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decided by the Division Bench of the High Court of  Orissa.  

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.

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.

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.

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.   

       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.         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

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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.

       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 cancelling the  order of recruitment passed in favour of respondent.

       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 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. 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.  

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.   

In our considered view, no interference is called for  in the impugned judgment.  The appeal, being devoid of  any merit, is accordingly dismissed.

In the facts and circumstances of the case, we direct  the parties to bear their own costs.