STATE OF ORISSA REPRESENTED THROUGH THE COMMISSIONER-CUM-SECRETARY TO GOVERNMENT HOME DEPARTMENT Vs. PRAVAT KUMAR PANDA

JUDGEMENT

(1.) ALL these Writ Petitions have been filed by the State. While all the Writ Petitions except O.J.C. No. 10462 of 1999, the challenge is to the common Order Dated 23.10.1998 passed by the Orissa Administrative Tribunal in O.A. Nos. 1339, 1340, 1341, 1342, 1343, 1344, 1345 & 1362(C) of 1998, O.J.C. No. 10462 of 1999 has been filed challenging the Order Dated 23.1.1999 of the Tribunal passed in O.A. No. 941 of 1998 following the ratio decided in the aforesaid common Order Dated 23.10.1998. Since common questions of fact & law are involved in all the Writ Petitions, they were taken up together & are being disposed of by this common Judgment.

(2.) THE facts of the case are that pursuant to the requisition sent by the State Government in the Home Department for Special recruitment examination for the year 1980 -81 & General recruitment examination for the years 1982 -83 & 1983 -84 to the posts of Junior Assistants in the Orissa Secretariat, the Orissa Public Service Commission issued advertisement No. 3 of 1985 -86 inviting applications in the prescribed form from prospective candidates for admission into the competitive examination for 514 posts of Junior Assistants. Out of the 514 vacancies, 128 were reserved for Scheduled Castes, 207 for Scheduled Tribes & 9 for Physically Handicapped candidates. The written examinations were conducted on 28.2.1987 & 1.3.1987 & after the examination merit list of 1984 candidates was sent to the Government which was approved on 1.5.1988. According to Rule 8 of the Orissa Ministerial Service (Method of Recruitment & Conditions of Service of Jr. Assistants of the Office of the Secretariat) Rules, 1951 the result of examination shall be communicated to the Government in the Home Department by the Secretary to the Commission ordinarily before the end of February in the form of a list of successful candidates arranged in order of merit. The list so prepared shall be followed till the result of the next examination is communicated to Government & not thereafter except as provided in Rule 11. It is averred that the Government extended the validity of the merit list from time to time upto 30.6.1993. In the meantime, advertisement No. 18 of 1990 -91 for another recruitment for the self -same post was published in the Samaj dated 7.1.1991. In the meantime, 47 candidates included in the merit list prepared pursuant to advertisement No. 3 of 1985 -86 challenged the advertisement No. 18 of 1990 -91 inviting applications for the post of Junior Assistants in the State Secretariat by filing 12 Original Applications (O.A. Nos. 898 (C)/ 92, 591(C)/92, 105 (C)/92, 2566 (C)/93, 741(C)/93, 571(C)/92, 835(C)/93, 2398(C)/93, 199(C)/92, 1205/92, 2308/93, 1848/92 & 1276/93) before the Tribunal on the ground that the merit list of the last recruitment had not been exhausted. The competitive examination pursuant to the second advertisement was to be held by the Commission in June, 1992. By interim order, the Tribunal directed that the merit list be prepared by the Commission after holding competitive examination as scheduled but no appointment from the said merit list should be given till disposal of the O. As. It is worthwhile to note that the merit list of the competitive examination pursuant to the second advertisement was approved by the State Government on 21.10.1993 & government filled up the vacancies in the post of Junior Assistant up to 1.7.1993 by candidates from the first merit list. Considering the provisions in the O.M.S. Rules which provided that a select list prepared by the P.S.C. for recruitment to the posts of Junior Assistants in the Secretariat shall remain valid till the next merit list is approved by the Government, the Tribunal finally disposed of the O. As. on 25.7.1994 by directing the Secretary to Government, Home Department to fill up the vacancies in the post of Junior Assistants arising during the period 1.7.1993 to 21.10.1993 by appointing the candidates from the first merit list.

(3.) IT is true that Tribunal confined the direction to appoint in respect of those who had approached the Tribunal. They were, however, admittedly lower in the merit list of selected candidate than the applicant. It is further true that no person has a right to be appointed, merely on the basis that he has been selected. Where, however, several candidates were selected & appointments are given on the basis of merit, a more meritorious candidate has a right for appointment before a person lesser in merit than him is appointed. The Tribunal could not have taken away right of such person without giving him opportunity of being heard to confine the direction for appointment if only those who filed application in the Tribunal defeating the rights of more meritorious only on the ground that they did not file application in the Tribunal. Therefore, a candidate who is in a higher position in the merit list can approach the Tribunal for a direction, if he finds that his junior has been given appointment. Cause of action would arise for him from the date of appointment of a candidate lower in the merit list. If a candidate did not approach the Tribunal in view of absence of right to be appointed even if selected, which is position of law, his right will arise when from out of the merit list persons having lesser merit are appointed. Selected candidates cannot be reasonably classified two categories, i.e., (i) those approaching the tribunal & (ii) those not approaching the Tribunal.