Judgment:
N. Prusty, J.
1. The petitioner, who was working as EDBPM/ GDSBPM, Sanatribada Branch Office in the district of Angul and Respondent No. 5 in O.A. No. 520 of 2000 has approached this Court challenging the order/judgment dated 10.2.2004 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack, in the said case. One Utsab Chandra Pradhan, the applicant therein had approached the Tribunal for a direction to quash the selection and appointment of respondent No. 5 (the present petitioner) to the post of E.D.B.P.M. and for a direction to the Respondents to conduct selection test afresh by giving an opportunity to all the eligible candidates including the applicant.
2. Even though nobody appeared for the applicant when the matter was taken up for hearing by the Tribunal, only on hearing the submissions made by Mr. B. Das, learned Additional Standing Counsel, learned Tribunal inter alia held that the selection of Respondent No. 5 to the post of E.D.B.P.M. was made in contravention of the vacancy notification for filling up the post and as such the said selection and appointment of respondent No. 5 therein as E.D.B.P.M. was set aside/quashed and further the official respondents were directed to issue a fresh notification inviting application wherein the case of the applicant and respondent No. 5 was to be considered, provided they are found eligible in all respect. The respondent No. 5 in the Original Application has filed the present application challenging the said findings/order of the learned Tribunal.
3. The petitioner's case, in short, is that following all required procedures he was selected and appointed as EDBPM/ GDSBPM, Sanatribida Branch Post Office and joined the post on 7.6.2000, continued in the office till receipt of order dated 7.6.2004 by which his services were terminated by virtue of the impugned order of the Central Administrative Tribunal, Cuttack Bench, Cuttack. It is also averred that since the petitioner secured highest mark amongst the candidates who fulfilled all the requisite conditions/criteria for appointment to the post of EDBPM, he was selected and appointed by the concerned authorities. There is no illegality or irregularity committed in selecting the petitioner to the post. In the notification inviting application dated 31.12.1999 (Annexure-1) at paragraph-2 (a) it has been categorically mentioned that the post is reserved for S.T. community. If minimum three eligible candidates belonging to the above community do not offer their candidature the vacancy in question will be treated as unreserved and offered to the candidates belonging to other reserved community as mentioned below in order of deficiency in representation i.e., S.C. and O.B.C. community. In paragraph 2(b), it is also mentioned that if minimum three eligible candidates belonging to the above noted reserved communities did not offer their candidature, the vacancy will be treated as unreserved and offered to the candidates belonging to other communities. Pursuant to the above notification, 13 appellants including the petitioner applied for the post. The petitioner secured 44.71% marks and his application was in order as per the notification. One Utsab Ch. Pradhan (applicant in O.A.) was one of the O.B.C. candidates and even though he secured 64.66% of marks, did not submit income certificate in his own name. He submitted Income Certificate in his father's name. As such he did not have independent source of income and livelihood. Since he did not fulfil the prescribed conditions of the notification, his application was not taken into consideration. Even though the post was reserved for S.T. only two S.T. candidates applied for the post and not three applicants as per minimum requirement. One of the S.T. candidates did not submit any property document in his own name and other one did not either submit income certificate or property documents. Hence both of them did not fulfil the prescribed conditions and remained out of the zone of consideration. Hence the post is to be filled up by S.C. candidates. Even though there were three S.C. candidates none of them submitted income certificate and property documents in their own names. Hence all the three S.C. applicants did not remain within the zone of consideration. There were 7 O.B.C. candidates out of whom five applicants did not submit either income certificate or property document or both in their own names. Hence they were kept out of the zone of consideration. Only two valid applicants of O.B.C. category remained to be considered. The present applicant, even though belongs to O.B.C. category, filed both O.B.C. and S.E.B.C. certificate but was treated as S.E.B.C. candidate on the allegation that he filed only a S.E.B.C. certificate, even though the letter under which the certificates were returned vide Annexure-8 clearly indicates that two caste certificates were returned to the petitioner along with other certificates. Even assuming that the petitioner did not file O.B.C. certificate and does not belong to O.B.C. category, he is to be treated as a candidate belonging to other communities/general candidate. Since adequate number of S.C., S.T. and O.B.C. candidates were not available, the post is available to be filled up by the unreserved candidates. The applications of two O.B.C. candidates and that of the petitioner have to be considered under unreserved category belonging to other communities. Accordingly there were three valid applicants who can be considered as general candidate, once the post is unreserved. The petitioner is selected as other community/general candidate in absence of adequate number of S.T/S.C. and O.B.C. candidate.
In view of the aforesaid position, there is no illegality/ infirmity or irregularity committed by the departmental authority in selecting and appointing the petitioner in the post of EDBPM. As such the order of the learned Tribunal is liable to be set aside and quashed.
4. The opposite parties 1 to 3 have filed their reply almost admitting the above position as has been stated by the petitioner in his application. They have filed a copy of notification dated 31.12.1999 (Annexure-R/1) as well as check sheet/list dated 14.2.2000 (Annexure-R/2). They have also stated that however three eligible candidates belonging to S.C., S.T., O.B.C., did not offer their candidature and as such the vacancy has been treated as unreserved and offered to the candidates belonging to other communities. After preparation of check list/sheet on the basis of the applications filed along with supporting document of the candidates, it is found that none of the S.T./S.C. candidates fulfilled all the eligibility criteria to be selected and appointed for the post. Binod Kumar Pradhan and Ashok Kumar Pradhan (present petitioner) at Sl. Nos. 8 and 11 of the checklist were found eligible. One Pravakar Pradhan, even though found eligible to be considered was not selected due to submission of some manipulated documents along with his application. The opposite party No. 4 herein Utsab Pradhan submitted the income certificate in the name of his father and therefore he was kept out of the zone of consideration. As such the application of Pravakar Pradhan, Binod Kumar Pradhan and Ashok Kumar Prahdan were in order and they remained within the zone of consideration. Binod Kumar Pradhan secured less marks than the petitioner and some of the documents filed by Pravakar Pradhan found to be manipulated and hence the petitioner was duly selected and appointed to the post. As such there is no irregularity and illegality in selecting and appointing Ashok Kumar Pradhan (present petitioner) as EDBPM in Sanatribida Branch Post Office.
5. Heard Mr. Ashok Mohanty, learned Senior Counsel leading Mr. Trilochan Rath, learned counsel for the petitioner and Mr. J.K. Mishra, learned Senior Standing Counsel appearing for opposite parties 1 to 3. None appears for opposite party No. 4.
6. Mr. Mohanty learned Senior Counsel for the petitioner submits that as per the advertisement the petitioner applied for the post and filed both O.B.C. and S.E.B.C. certificates along with his application. But in the checklist as against his name entry under the heading of caste has been made as S.E.B.C. Even assuming, but not admitting that the petitioner did not file O.B.C. Certificate along with his application and is not to be considered under the O.B.C. category, then also he can be considered as an unreserved candidate belonging to other community. Once adequate number of S.C./S.T. and O.B.C. candidates are not available to be considered as per the terms of the notification, the post becomes unreserved and thereafter candidates belonging to different communities, who have applied for the post and fulfilled all the conditions, can be considered for the post as unreserved candidates. In support of his above contentions, Mr. Mohanty in course of hearing drew our attention to Paragraph-2(a) and (b) of the Notification dated 31.12.1999 (Annexure-1) wherein it has been categorically mentioned that the post is reserved for S.T. community. In case adequate number of candidates are not available then the same is to be filled up by S.C. or then by O.B.C. and if adequate number of candidates belonging to the above noted reserved communities are not available the vacancy is to be treated as unreserved. Once it is treated as unreserved, all the applicants who have applied for the post belonging to different communities can be considered to the post as unreserved candidates, because once the post is unreserved, persons belonging to any caste/community are free to apply for the post and in case they fulfill all the prescribed criteria as per the notification, their case has to be considered. Finally amongst those candidates who secured more marks after fulfilling all the criteria is to be selected. In view of the above except the petitioner there were also two other candidates available to be considered. The petitioner fulfilled all the conditions and found more suitable amongst them. The other two, who fulfilled the conditions and remained within the zone of consideration, have not approached any forum challenging the selection of the petitioner. As such, in view of the aforesaid position, the Tribunal even though rightly held that the petitioner in the Original Application did not fulfil the income criteria for the purpose of selection to the post and simultaneously wrongly observed that the selection of respondent No. 5, Ashok Kumar Pradhan (petitioner) under OBC Category was made in contravention of the vacancy notification since the Central Government has not declared SEBC as OBC. As such the order of the Tribunal declaring the selection of respondent No. 5 to the post is in contravention of the vacancy notification and accordingly setting aside the selection and appointment of Respondent No. 5 and directing the respondents to issue fresh notification inviting application is completely unjust and illegal and is against the terms of the Notification itself. The Tribunal should not have entertained the application filed by a candidate who remained out of the zone of consideration, as he did not fulfil the eligibility criteria and participated in the same selection process. It is only two other candidates who remained within the zone of consideration have a right to challenge the selection of the present petitioner.
7. Mr. Mishra for the official respondents submits that he has nothing to say more in the matter, since as per the notification adequate number (that is 3) of eligible candidates belonging to S.C., S.T., and O.B.C. category are not available then the post/vacancy is to be treated as unreserved. As such, the candidates belonging to any caste/community or category who have applied for the post and fulfilled the conditions can be considered to the post. There is no illegality or irregularity in selecting Ashok Kumar Pradhan, the present petitioner, and giving him appointment to the post, as there were 2 O.B.C. and 1 S.E.B.C. (in total 3 candidates), who fulfilled all the conditions and as such can also be considered as unreserved candidates belonging to any other community. Learned counsel further submits that since the learned Tribunal directed the respondents to terminate the appointment of the petitioner and to issue a fresh notification Inviting application; the respondents have terminated the services of Ashok Kumar Pradhan by Office Memorandum dated 7.6.2004 (Annexure-9) and also they have issued fresh notification inviting application for filling up of the post of EDBPM, Sanatribida Branch Post Office.
8. In addition to the above contentions of Mr. Mishra, Mr. Mohanty, learned counsel for the petitioner submits that since there were three eligible applicants, who fulfilled the eligibility conditions/criteria amongst all 13 applicants as per the notification inviting application and found to be suitable for the post, no illegality has been committed by the authority in selecting the petitioner by treating all the three as unreserved/ general category, even though two belong to OBC and one belongs to SEBC/OBC; once the vacancy is treated as unreserved due to non-availability of adequate number of S.T., S.C. or OBC candidates.
9. Considering the submission made by the learned counsel for the respective parties, we are of the considered view that the order/judgment of the Tribunal in finding that the selection of the present petitioner to the post of EDBPM was made in contravention of the notification is completely illegal/unjust as the same is against the instructions and contrary to the terms specified in the notification.
10. A bare perusal of paragraph 2(a) and (b) of the notification in clear and categorical terms indicates that the post is reserved for Scheduled Tribe and if minimum three candidates belonging to the S.C. community do not offer their candidature the vacancy shall be treated as unreserved and offered to candidates belonging to other reserved community in order of deficiency in representation, that is, S.C. community and O.B.C. community and if minimum three eligible candidates belonging to above reserved communities did not offer their candidature the vacancy will be treated as unreserved and offered to the candidates belonging to other communities. In the instant case, admittedly none of the S.T. and S.C. community candidates fulfilled the prescribed conditions. Assuming that three OBC candidates also did not fulfill the conditions and only two fulfilled the same, the vacancy has to be treated as unreserved. Once the vacancy is treated as unreserved, candidate belonging to any community can apply and be considered to the post as per the terms of the notification itself. Since in the instant case three applicants belonging to different communities were available for selection, that is, two OBC as well as the petitioner as SEBC and once the post is treated as unreserved as per Paragraph 2(b) of the notification, there is no illegality or infirmity in selecting the petitioner herein to the post in terms of the notification. As such, there is no contravention of the terms of the notification as the petitioner also fulfil all the terms and conditions specified in the said notification along with other two candidates, even though those two belong to OBC and the petitioner is treated as SEBC candidate and all the three were available for selection after the vacancy becomes unreserved.
11. In view of the above, the impugned order/judgment dated 10.2.2004 in O.A. No. 520 of 2000 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in Annexure-5 to the extent that the selection of respondent No. 5 (present petitioner) to the post of EDBPM was made in contravention of the vacancy notification for filling up the post and setting aside the selection and appointment of respondent No. 5 as EDBPM as well as directing the official respondents to issue fresh notification inviting applications and the consequential order/memorandum dated 7.6.2004 (Annexure-9) is quashed/ set aside. The opposite parties 1, 2 and 3 are directed to allow the petitioner to continue in the post of EDBPM/GDSBPM at Sanatribida Branch Post Office with all consequential benefits treating the period from 7.6.2004 till the date of his assumption of charge as continuation of duty excluding his salary for the period, if he has not worked, since his service was terminated as per the order of the Tribunal and the respondents have acted only in compliance of the order. .
The writ application is accordingly allowed. No order as to cost.
B.P. Das, J.
12. I agree.