Union Of India & Anr vs Sabita Halder
2022 Latest Caselaw 8685 Cal

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                 IN THE HIGH COURT AT CALCUTTA
               CONSTITUTIONAL WRIT JURISDICTION
                           APPELLATE SIDE


Present:
THE HON'BLE JUSTICE HARISH TANDON
              &
THE HON'BLE JUSTICE PRASENJIT BISWAS


                          W.P.C.T 82 OF 2022



                          Union of India & Anr.
                                    Vs.
                               Sabita Halder


Appearance:


For the Petitioners/UOI    :     Mr. Siddhartha Lahiri, Adv.
                                 Mr. Debraj Dutta, Adv.


Judgment On                :     23.12.2022




PRASENJIT BISWAS, J.:
      The instant application is preferred against the order dated.

14.12.2021 passed by the Central Administrative Tribunal in O.A. No.

350/01837/2018.


     Whereby and whereunder the petitioners/authorities are directed to
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appoint the respondent in an existing vacancy in similar/commensurate

post for Visually Handicapped candidates or she should be appointed in

the next available vacancy in such post against the VH quota.

The background facts are that the Respondent participated in a

written examination conducted by the Railway Authorities on

06.05.2007 for the post in Group C category and received a call letter

from the Divisional Railway Manager, Eastern Railway, Howrah on

22.06.2007 for verification of her testimonials. She reported on the

schedule date and completed the verification process. On 03.07.2001 the

respondent faced a brutal attack by the miscreant resulting loss of her

eyesight and left her traumatized.

During second part of the 2017 this respondent came to know that

the panel in which her name was included had been abolished. She

preferred application under the provision of the RTI Act but did not get

any satisfactory answers. The respondent in the circumstances having

no other remedy to agitate her grievance has been constrained to file an

application before the tribunal for getting proper relief.

We have considered the rival submissions advanced by both the

sides. Perused the impugned order.

It appears from the materials on record that the Respondent

participated in the written examination conducted by the Railway

Authority for filing up the vacancies in Gr. C and Gr. D post against

Physically Handicapped Quota and qualified in the said written

examination securing 4th position in the merit list of VH candidates. The

respondent was directed to appear for verification of testimonials which

she duly attended.

It is undisputed that two vacancies were kept reserved for Visually

Handicapped candidates. Out of 5 nos. shortlisted Visually Handicapped

candidates 04 nos. candidates including this respondent were present in

the screening test held on 13.07.2007. As per recommendation of the

recruitment committee a panel of 2 nos. of visually handicapped

candidates whose names stand in Sl. nos. 2 and 3 was published. Those

2 empanelled candidates did not join but the respondent was not called

for medical examination although she secured 4th position in the merit

list.

This respondent was the next candidate on merit, so she should

have been included as the top most candidate in the replacement panel.

The right of the respondent to be appointed against the post to which

she has been selected cannot be taken away on the pretext that the said

panel has in the meantime expired and the post has already been filled

up by somebody else. Usurpation of the post by somebody else is not on

account of any defect, but on the erroneous decision of the appellant. No

reasonable explanation has been given by the appellant in respect of

depriving the respondent from her legitimate entitlement to an

employment earned through examination. It is clear to us that the

empanelled candidate had failed to join within a stipulated time despite

that this respondent who was the immediately next successful candidate

was not offered to offer of appointment to the post. The respondent

having been duly selected for the post in question and being illegally

kept out of the appointment on account of the so-called decision of this

screening committee.

We have no hesitation to hold that act of the petitioner authority

in non-considering the appointment of the respondent in the Gr. C post

under Visually Handicapped quota is vitiated by lack of transparency

and liable to be struck down.

In order to do substantial justice to a litigant this Court should

take every possible step. The respondent cannot suffer injustice due to

expiry of the life of the panel and therefore, it cannot be said that she

waived her right. Accordingly, we are of the view that the respondent's

right to be appointed to the post has been illegally taken away by the

petitioner.

In view of the above this Court is of the view that the Tribunal, in

the impugned order, was perfectly justified and there is absolute no legal

infirmity in the order.

The petition is accordingly dismissed.

Urgent Photostat certified copies of this judgment, if applied for, be

made available to the parties subject to compliance with requisite

formalities.

I agree.

(Harish Tandon, J.) (Prasenjit Biswas, J.)