UNION OF INDIA Vs. SANTOSH KUMAR ROUT

JUDGEMENT

(1.) In the present writ petition, challenge has been made to the order of the Central Administrative Tribunal, Cuttack (for short, 'the Tribunal') dated 01.04.2005 passed in O.A. No.53 of 2004 on the ground that the said order is illegal, arbitrary and contrary to the provisions of law.

(2.) Petitioners' case in a nutshell is that the opposite party Sri Santosh Kumar Rout was appointed provisionally on 08.07.1997 as an E.D./GDS Packer, Aerodrome Area, PO: Bhubaneswar. On 10.06.1999, an order was passed by the Sr. Superintendent of Post Offices, Bhubaneswar terminating his services with a direction that he would be entitled to claim equivalent to the basic allowance plus D.A. for the period of notice at the same rate he was drawing immediately before passing of the order. Challenging the said order, opposite party filed O.A. bearing No.282 of 1999 praying therein to quash the order of termination. Before the Tribunal, the respondent-Union of India filed a counter indicating the irregularities in the selection process followed by Sub-divisional Inspector, Postal, South Division, Bhubaneswar showing undue favour to the applicant by not calling the names from the Employment Exchange. The public notice dated 24.07.1997 stated to have been issued to various authorities was, in fact, not sent by registered post and there were other irregularities committed. The opposite party being beneficiary of such irregular appointment, his services were rightly terminated. Said O.A. No.282 of 1999 was allowed on 15.03.2000 quashing the order of termination. However, liberty was given to the present petitioners to issue show cause notice against proposed order of termination and only after considering the reply of the opposite party to take a decision in the matter as deemed fit. Pursuant to said direction, opposite party was issued with notice dated 08.01.2004 to show cause as to why his services as Gramin Dak Sevak Packer (previously called as ED Mail Deliverer) in Aerodrome Area, PO: Bhubaneswar shall not be terminated as his entry into the service was not found congenial to the procedural Rules. On 21.01.2004, the opposite party filed his reply to the said show cause notice. However, apprehending penal action, the opposite party filed O.A. No.53 of 2004 on 20.02.2004 challenging the said show cause notice on the ground that he was duly selected and should not suffer for no fault of his; secondly, show cause notice was issued belatedly and it should have been issued within six months from the date of receipt of order passed in O.A. No.282 of 1999; since show cause notice has not been issued within six months, the respondent-petitioners are estopped from issuing such notice thereafter. After hearing the parties, learned Tribunal allowed the Original Application bearing OA No.53 of 2004. Hence, the present writ petition.

(3.) Mr.S.D.Das, learned Assistant Solicitor General appearing for Union of India submitted that the Tribunal has committed a jurisdictional error in holding that the respondents (present petitioners) have taken inconsistent view without application of mind. The impugned order has been passed without appreciating various submissions of the present petitioners on its proper perspective. Rather learned Tribunal has failed to appreciate the counter filed in O.A. No.53 of 2004, which is in addition to the earlier counter filed in OA No.282 of 1999. The order dated 30.06.1998 regularizing the opposite party's appointment was issued by the Sub-Divisional Inspector, Postal in order to show undue favour to the opposite party on the date he was relieved on account of transfer to Jatni Sub-Division under Puri Division. The opposite party being the sole applicant for the post, that itself shows that there is no notification by registered post. The finding of the Tribunal that the opposite party cannot be found fault with in the matter of selection is perverse. The Tribunal erroneously relied upon the judgment in OJC No. 5254 of 1988 as well as judgment of the Patna High Court. The learned Tribunal should not have drawn adverse view for issuance of notice after long lapse of time, as for such lapse and delay in issuance of notice by the concerned Officer, he has been proceeded against and punished. In the present case, scope of selection was not widened to select the most meritorious candidate but it was confined to one application for one post. Recruitment Rules mandates compulsory notification to the Employment Exchange and if such candidates are found not suitable, then public notification can be issued, but in the present case, the proof of dispatch by registered post to the Employment Exchange and the public notifications are not available in the selection file. Therefore, the whole selection is vitiated. Thus, the Tribunal exceeded its jurisdiction, while quashing the show cause notice prematurely before any final decision is taken.