REPORTABLE

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

J U D G M E N T

S.B. SINHA, J.

1. Leave granted.

2. Appellants  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.

3. The 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”.

4. Subsequently, 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:

“Considering the 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

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post.   In  the  result,  the  application  is  dismissed without any order as to cost.”

5. Respondent 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:

“Therefore,  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.”

6. However,  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 application.   

7. Mr.  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

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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.   

(ii) Respondent  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

unsustainable.

8. Mrs.  Sarda  Devi,  learned  counsel  appearing  on  behalf  of  the

respondent, however, would support the impugned judgment.

9. Before 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

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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.

10. The 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.   

Respondent, therefore, should have been treated to be a member of

‘Schedule Caste’ for the purpose of consideration of his candidature.

11. The  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

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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..

12. The 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’.

13. If, 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.

14. In 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

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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.

15. For 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/-.

       ………………………………..J. (S.B. Sinha)

………………………………..J. (J.M. Panchal)

New Delhi JANUARY 13, 2009

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