SCA/8999/2007 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8999 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.S.SHAH AND HONOURABLE MR.JUSTICE RAVI R.TRIPATHI ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= SUBHASAY BARA, CONSTABLE Versus UNION OF INDIA THR' SECRETARY AND OTHERS ========================================= Appearance : MS SM AHUJA with MS PRAGYA A JHA for the Petitioner MR NIRAV C THAKKAR for Respondent No.1 NOTICE NOT RECD BACK for Respondent(s) : 2 - 4. ========================================= CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 28/01/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI) 1. The petitioner is before this Court praying that respondent Nos. 2 and 3 be directed to issue fresh appointment letter for the post of ASI (Clerk/Typist) to SI/CLK alongwith promotion and back wages since 1995. The SCA/8999/2007 2/12 JUDGMENT petitioner also prayed for a writ/ order commanding the respondents to accept appointment letter dated 27.3.1995 as legal and valid, appointing the petitioner on the post of ASI (Clerk/Typist) to SI/CLK alongwith promotion and back wages since 1995. Last but not the least, the petitioner also prayed for issuing a writ of Certiorari or a writ in the nature of Certiorari quashing and setting aside order passed by respondent No.4 dated 5.4.1995 cancelling the appointment of the petitioner and order dated 19.10.2006, whereby the representation of the petitioner was rejected by respondent No.2. 2. The present petition was filed on 15.2.2007, it came up for admission hearing on 4.4.2007. The Court issued notice returnable on 1.5.2007. In response to the notice issued by this Court, the respondents filed their appearance and one Sunil Kumar Hazra, working as Group Commandant, Central Industrial Security Force, Group Headquarters, Ahmedabad filed affidavit-in-reply dated 13.7.2007 on behalf of the respondents. On 21.11.2007, the matter was adjourned to 28.11.2007 to enable the learned Standing Counsel for Union of India to produce the original files for perusal of the Court. 3. Today, when the matter is taken up for hearing, the learned counsel appearing for the petitioner invited attention of the Court to the facts of the case, which are as under: 3.1. The petitioner was employed in Central Industrial Security Force (hereinafter referred as “CISF” for short). On 26.9.1994, an advertisement was issued by the office of the Deputy Inspector General, Western Zone, CISF Unit RCF SCA/8999/2007 3/12 JUDGMENT Chembur, Bombay for recruitment of Assistant Sub Inspector of CISF. The petitioner, being an eligible candidate for reservation quota for the same, was issued call letter on 8.12.1994 by the office of Deputy Inspector General (WZ) Bombay. The petitioner appeared for the written test on 8.1.1995 and passed the same. The petitioner also appeared for the typing test on 10.1.1995 and he was successful in the same. Thereafter, the petitioner was called for physical measurement test and for interview, which too the petitioner successfully cleared. 3.2. The petitioner was issued selection letter dated 3.3.1995 for the post of ASI (Clerk/Typist) for CISF Unit. A copy of the selection letter is produced at Annexure-'C' to the petition. The petitioner was then issued an office order dated 27.3.1995, intimating that the petitioner is selected for the post of ASI (Clerk/Typist) by the Deputy Commandant, CISF Unit, UTPS Ukai Dam. A copy of the same is produced at Annexure-'D' to the petition. The petitioner was thereafter issued movement order on 28.3.1995 by the same authority, i.e. Deputy Commandant, CISF Unit, Ukai Dam, for departure to NISA Hyderabad for basic training. The petitioner was asked by the respondent authority to report to the Assistant Director, NISA, CISF, Hyderabad for basic training and he was informed that further posting order will be issued by Force Head Quarter. A copy of movement order dated 28.3.1995 is annexed at Annexure-'E' to the petition. 3.3. The petitioner has set out the names of 14 candidates, including the petitioner, who were selected for the post of ASI (Clerk/Typist) in para 9 of the petition. It is, thereafter, that SCA/8999/2007 4/12 JUDGMENT on 5.4.1995, the CISF (Ministry of Home Affairs) passed an order cancelling the selection of the petitioner. The relevant part of that order reads as under: “The Western Zone Hqrs. Bombay vide message No.E- 2020/1(1)ASI/CLK/WS/1995 RET/220, dated 29.03.1995 has intimated that call up letter in your favour for appointment of ASI/CLK has been issued by Western Zone Hqrs inadvertently and the same be treated as cancelled.” 4. The petitioner being aggrieved of that is before this Court challenging this order and also order dated 19.10.2006 by which the representation of the petitioner is rejected. The learned advocate for the petitioner submitted that in between the following events took place: 4.1. The petitioner filed Special Civil Application No.8628 of 1995. During the pendency of that petition, the petitioner was given assurance by the higher officer of the respondent authority that if the petitioner withdraws the said petition, his grievance would be considered by the concerned officer. The petitioner has set out these facts in para 11 of the present petition. It is further stated in the said para that, 'on an assurance given by the higher officers of the respondent authority and under a hope that his case will be considered, as promised, the petitioner withdrew the said petition unconditionally in good faith'. The withdrawal took place on 8.12.2000. But, to the ill-luck of the petitioner, the respondent authority did not consider the grievance of the petitioner, as promised, which made the petitioner to approach this Court SCA/8999/2007 5/12 JUDGMENT again by filing Special Civil Application No. 11917 of 2004. The said petition was heard and dismissed by order dated 21.09.2004. Relevant part of the order reads as under: “However it is made clear that the petitioner may have fresh cause of action in the event the decision on the representation goes against him.” A copy of order dated 21.09.2004 is annexed at Annexure-'G' to the petition. 4.2. In the meantime, the petitioner was transferred from Gujarat to Kolkatta. The petitioner made a representation on 4.3.2005 through his advocate setting out the facts in detail and sent the same by Registered Post A.D. A copy of the same is produced at Annexure-'H' to the petition. The petitioner did not hear anything from the respondent authorities and, therefore, the petitioner, after sending several reminders to the authorities, approached the High Court of Kolkatta by filing Writ Petition No. 6627 of 2005. But, the same was not entertained by the High Court of Kolkatta on the sole ground of 'territorial jurisdiction' and disposed of the same by order dated 19.05.2005. 4.3. The petitioner then approached this Court again by filing Special Civil Application No.16877 of 2005 contending that, as per order dated 21.09.2004, the petitioner has made representation to the authorities but the same is not decided. The said petition was withdrawn by the petitioner on the High Court directing the authorities by order dated 17.08.2006 to decide the pending representation as early as possible, preferably by 31st October, 2006. SCA/8999/2007 6/12 JUDGMENT 4.4. After the aforesaid direction was issued by this Court, the respondent authorities decided the representation of the petitioner and rejected the same by order dated 19.10.2006, this order is also challenged in this petition. 5. The learned advocate for the petitioner vehemently submitted that while rejecting the representation, the authorities have not pointed out any cogent reason/s for issuing cancellation order dated 5.4.1995. The learned advocate for the petitioner invited attention of the Court to para 3 of communication dated 19.10.2006, which reads as under: “3. I have carefully examined the grievances of the petitioner and scrutinised records relating to his selection to the post of ASI/Clerk during the year 1995. It is a fact that L/NK Subhasay Bara appeared for his selection to the post of ASI/Clerk during the year 1995. He secured 84 marks in written test out of 200 marks and 12 marks in interview out of 50 marks i.e. 96 marks out of 250 marks. Total 13 departmental ST candidates formed the merit list against only 9 notified vacancies reserved for ST candidates. The petitioner's name figured at the bottom of the merit list at S.No.13. Out of 13 candidates, selection of only 8 ST candidates was approved by competent authority in the year 1995. The petitioner could not find place in the approved list amongst the 8 ST candidates. Since there were only 09 notified reserve vacancies for ST category candidates and the petitioner's name figured at S.No.13, his SCA/8999/2007 7/12 JUDGMENT selection to the post of ASI/Clerk does not arise. Though his name has also not figured in the approved list issued vide FHQ letter No.E-32020(1)/1/94-Rectt/290 dated 17.02.1995 sent to DIG/WZ Mumbai, DIG/WZ Mumbai inadvertently issued offer of appointment to the petitioner. However, the said mistake was noticed at the office of DIG/WZ Mumbai and before moving the petitioner for basic training at NISA Hyderabad from his present unit of UTPS Ukai, his offer of appointment issued inadvertently, was cancelled and communicated to the petitioner.” The learned advocate for the petitioner vehemently submitted that except saying that the selection order and the movement order were issued 'inadvertently', no other reason is pointed out. The learned advocate for the petitioner submitted that the petitioner learnt for the first time from the said communication that the merit list contained the names of 13 (thirteen) departmental ST candidates against 9 (nine) notified vacancies; that the name of the petitioner was at serial No.13 in the said merit list. The learned advocate vehemently submitted that had it been the case of the department that the name of the petitioner was at serial No.9 or 10, the reason given by the authorities of 'inadvertently' issuing the selection order and the movement order could be understood, but, when the name of the petitioner was at serial No.13, the aforesaid reason is not convincing at all. 6. The learned advocate for the petitioner submitted that even in the affidavit-in-reply filed on behalf of the respondents, no reason or circumstance is set out in which the SCA/8999/2007 8/12 JUDGMENT selection order or the movement order of the petitioner was issued. In this regard, the learned advocate for the petitioner invited attention of the Court to para 7 of the affidavit-in- reply, wherein the deponent has stated that, “.......It is submitted that call letter (offer for appointment) was erroneously issued to the petitioner. Since the call letter (offer for appointment) was issued erroneously and inadvertently to the petitioner, the same was later on withdrawn and hence, the petitioner cannot claim to have been selected for the post as alleged or at all...” The learned advocate for the petitioner also invited attention of the Court to para 8 of the affidavit-in-reply, wherein, it is stated that, “.....I say that the letter dated 27.03.1995 is a part of the record. It is reiterated that the same was a mistake, which was corrected later on”. The learned advocate for the petitioner submitted that, similarly, in para 10 of the affidavit-in-reply, the deponent has stated that, “..... As stated hereinabove, it is reiterated that the petitioner was not selected for the post as claimed by him. It is reiterated that the call letter (offer for appointment) was erroneously issued to the petitioner, which was later on withdrawn. It is submitted that as soon as the mistake came to the notice of Deputy Commandant, CIFS (sic CISF) Unit, Ukai through DIG, CISF, West Zone, the petitioner was immediately informed not to proceed to NISA, Hyderabad for basic training.....” 7. By order dated 21.11.2007, the learned Standing Counsel for the Union of India was granted time to bring the SCA/8999/2007 9/12 JUDGMENT original files for perusal of the record. Today, the learned counsel made available the file for perusal. In the notes, the details of all ST departmental candidates are set out. For the ready perusal, the same are reproduced: SN Merit N Name Relaxation required & granted 01 02 Bagul Shaligram Dangal NIL 02 03 Annimala Venkataiah NIL 03 05 Subhash Baburao Patangare NIL 04 06 Rajesh Kumar Meena Only 1 cms in expansion of chest (Chest was 81-85 cms against requirement of 81-86 cms) 05 07 Roshan Lal Only .5 cms in height (his height was 166.5 cms against requirement of 167 cms. 06 09 Kamal Singh Chauhan NIL 07 10 C Rama Krishana NIL 08 12 O Hanumanna NIL SN Merit N Name Relaxation required 01 04 Mohinder Singh 4 cms relaxation in height required. His height was 163 cms against requirement of 167 cms. 02 08 Sabastian Lakra 2 cms relaxation in height required. His height was 165 cms against requirement of 167 cms. 03 11 Srinath Siril Murmu 4 cms relaxation in height required. His height was 163 cms against requirement of 167 cms. He also did not secure merit position. 04 13 Subhasay Bara 2.5 cms relaxation in height required. His height was 164.5 cms against requirement of 167 cms. He also did not secure merit position. SCA/8999/2007 10/12 JUDGMENT The name of the petitioner is in the second table at serial No.4. It is mentioned against his name that he was at serial No.13 in the merit list and in the column titled as 'Relaxation required', it is stated that, “2.5 cms relaxation in height required. His height was 164.5 cms against requirement of 167 cms. He also did not secure merit position”. In para 5 of the notes, it is recorded that, “Though the selection of Shri S.Bara, the petitioner, was not approved by the DG and communicated to Zonal DIG of West Zone, the Zonal office of West Zone inadvertently issued him offer of appointment on 03.03.1995 advising him to report at NISA Hyderabad by 01.04.1995. However, the mistake was detected before move of the candidate from his unit for NISA Hyderabad and the offer of appointment issued to him was cancelled and informed to the petitioner (Ex-12 and page 35/C)”. 8. Learned Standing Counsel for Union of India Mr. Nirav C. Thakkar, invited attention of the Court to the Central Industrial Security Force Rules, 1969 and submitted that Rule 21 provides for 'Power to relax'. He submitted that in the merit list, there were persons on higher up positions who did not require any relaxation but still they could not be selected as there were limited vacancies only. He submitted that the total notified vacancies were 9, whereas the list was prepared of 13. He submitted that the name of the petitioner was at serial No.13 in the merit list. He submitted that the persons, who were at serial Nos. 10 and 12, were such who did not require any relaxation, still they could not be selected, hence, the question of the petitioner getting selected did not arise. SCA/8999/2007 11/12 JUDGMENT 9. The learned counsel for the respondent authorities submitted that he has personally gone through the file and is convinced that this is a case of bonafide mistake, which resulted into issuance of the selection order and also of the movement order. But, before any movement could be made, the mistake was noticed and the petitioner was issued the cancellation order. 10. The learned counsel for the respondent authorities submitted that besides the aforesaid facts on merit of the case, there is delay and laches on the part of the petitioner. He submitted that after having withdrawn the petition, being Special Civil Application No.8628 of 1995 in the year 2000, the petitioner did not do anything until he filed Special Civil Application No.11917 of 2004, therefore, solely on the ground of delay and laches, the present petition be dismissed. This submission of the learned advocate for the respondents shall not hold the Court for long as the respondent authorities have considered the representation made by the petitioners dated 4.3.2005 and rejected the same by order dated 19.10.2006. 11. The Court has closely examined the original file and did not find any reason for not believing the plea of 'inadvertent mistake'. 12. From the aforesaid discussion, it is clear that there is no other reason than 'inadvertent mistake' on the part of the authority in issuing the selection order and the movement SCA/8999/2007 12/12 JUDGMENT order. There is no reason for which the said mistake should be ordered to be perpetuated. However, the fact remains that the said inadvertent mistake has dragged the petitioner to number of litigations, starting from Special Civil Application No.8628 of 1995, Special Civil Application No.11917 of 2004, Special Civil Application No.16877 of 2005 and the present one and, therefore, the Court deems it fit to award the cost to the petitioner more so when no substantial relief can be awarded to the petitioner. 13. In view of the above discussion, the petition is dismissed. However, in view of the peculiar facts and circumstances of the case and more particularly the fact that the offer of appointment was made to the petitioner and subsequently cancelled, for which no fault is attributed to the petitioner, and also considering the number of litigation, which the petitioner was driven to file, we direct the respondents to bear the cost of this litigation, which are quantified at Rs.5,000/- (Rupees Five Thousand only). The costs to be paid within two months. Notice is discharged. (M.S. SHAH, J.) (RAVI R.TRIPATHI, J.) omkar