Bhabani Sankar Mishra vs Union Of India And Others
2021 Latest Caselaw 6326 Ori

                    IN THE HIGH COURT OF ORISSA AT CUTTACK

                                  W.P.(C) No. 26860 of 2017

             Bhabani Sankar Mishra                      ....            Petitioner
                                                        Ms. P. Mishra, Advocate
                                            -versus-

             Union of India and Others                  ....      Opposite Parties

                                           Mr. Anindya Kumar Mishra, Advocate
                                                  for Opposite Party Nos. 1 to 3.

                           CORAM:
                           THE CHIEF JUSTICE
                           JUSTICE K.R. MOHAPATRA

                                            ORDER

Order No.                                  11.06.2021
            Dr. S. Muralidhar, CJ

15. 1. The challenge in the present writ petition is to an order dated 7th January, 2017 passed by the Central Administrative Tribunal, Cuttack (CAT) in T.A. No. 260/006 of 2017.

2. There is a long history to the present litigation at the instance of the present Petitioner, who is stated to be an Orthopedically Handicapped (OH) person and a Graduate in Arts with 45% disability.

3. An advertisement was issued on 3rd March, 1997 by the Divisional Railway Manager (DRM), South Eastern (SE) Railways, Khurda Road inviting application for recruitment of Group 'C' posts against the Physically Handicapped (PH) quota. Applications were invited for 30 posts, out of which 10 were

earmarked for OH persons. Amongst other conditions, one was that the applications should be sponsored by the Employment Exchange/Vocational Rehabilitation Centre/ Special Employment Exchange etc. and should reach the Office of the Senior Divisional Personnel Officer (Opposite Party No.2) on or before 15th April, 1997.

4. According to the Petitioner, his case was declined to be sponsored by the Employment Exchange, Puri despite his personal request. His application directly submitted to the Railway authority was not accepted. Accordingly, he filed O.J.C. No. 5262 of 1997 in this Court seeking a direction to the DRM to accept his application and allow him to sit for the examination scheduled to be held against the said vacancies.

5. On 10th April, 1997, this Court disposed of the said writ petition with a direction to Opposite Party No.2 and the Divisional Personnel Officer (Opposite Party No.3) to accept the Petitioner's application directly for the posts of Group 'C' against PH quota without insisting on his name to be sponsored by the Employment Exchange.

6. According to the Petitioner, pursuant to the said order he submitted an application directly to the Opposite Parties, which was accepted on 11th April, 1997. He has enclosed with the present petition as Annexure-4, a copy of the receipt slip purportedly issued on the said date. It must be noted here that the authenticity

of this receipt has been doubted by the Opposite Parties and, therefore, is one main bone of contention between the parties.

7. The grievance of the Petitioner is that despite receiving the said application, he was not called upon to appear in the written test conducted for the recruitment to the posts earmarked for PH persons, the result of which was published on 10th September, 1998. He claims that he did not receive any intimation regarding the written test.

8. This led the Petitioner to file OJC No. 15595 of 1998 with two prayers. The first was that the advertisement itself should be quashed and the second, that the Petitioner should be allowed to participate in the process of selection by treating him at par with other similarly situated persons who have been considered and selected pursuant to the said advertisement.

9. The said writ petition OJC No. 15595 of 1998 came up for hearing before this Court on 12th November, 1998. While directing notice to be issued in the said writ petition, in the interlocutory application being Misc. Case No. 14343 of 1998, the following order was passed by this Court:

"Any appointment made pursuant to the viva voce and written test, shall be subject to the result of the writ application."

10. The said writ petition OJC No. 15595 of 1998 came to be disposed of nearly 18 years thereafter by the learned Single Judge by judgment dated 21st January, 2016. The learned Single Judge

noted that several adjournments had been granted to the Opposite Parties to enable them to produce the relevant record, but counsel for the Opposite Parties expressed her inability to do so as the records were not available. The learned Single Judge noted the submission of the counsel for the Railways that the cause of action was exclusively within the jurisdiction of the CAT and without availing of that alternative remedy the writ petition had been filed. Secondly, the Opposite Parties submitted that the application stated to have been handed in by the Petitioner on 11th April 1997 was in fact not received by the Railway authorities and therefore the Petitioner could not have been called for any interview. It may be noted here that the Petitioner filed a copy of the said receipt only with his rejoinder on 20th November 2013, more than 15 years after filing the writ petition.

11. The learned Single Judge noted in the judgment dated 21st January, 2016 that it was a disputed question of fact whether the Petitioner had submitted an application in compliance with the order passed by this Court on 10th April 1997 in O.J.C. No. 5262 of 1997. It was further observed by the learned Single Judge that:

"In any case, even if the petitioner submitted an application, that ipso facto cannot give a right to allow him to appear in the examination. Merely on filing of an application, no right is created in favour of the petitioner so as to allow him to appear in the examination."

12. Although the learned Single Judge noted that the counsel for the Railways has disputed the aforementioned receipt filed by the Petitioner as Annexure-A to his rejoinder, the learned Single Judge

also noted that even under the RTI Act no information in that regard could be provided to the Petitioner since the record was not available. The learned Single Judge quoted from the letter dated 16th December, 2015 of the Deputy Railway Manager (P), Khurda to the counsel for the Railways, which read as under:

"4. In obedience to the Hon'ble Court's order dated 29.9.2015, through search has been made in the Recruitment Section of this Office to find out the Records but the same could not be available at this distant date. During the period of 18 years, so many incumbents have been retired/transferred from the said section. At this distant date, the said file is not available. The opposite parties tenders unconditional apology for the inconvenience caused to the Hon'ble Court."

13. The learned Single Judge further noted that the Petitioner had not impleaded the selected candidates as the parties to the proceedings. Further the file itself was not available and the requisite information was not being furnished. The learned Single Judge further noted that since the selected candidates have already rendered service for many years, the Court was not proposing to quash their appointments. Nevertheless, the learned Single Judge issued a mandamus that the Petitioner should be considered for the post of Group-'C' which had been advertised more than 18 years earlier. The following directions were ultimately issued by the learned Single Judge:

"In that view of the matter, let the opposite parties act on the form submitted by the petitioner, which is said to have been acknowledged vide Annexure-A to the rejoinder affidavit and consider his candidature for selection pursuant to the advertisement in Annexure-2 after subjecting him to written and viva voce test. The entire exercise shall be completed within a period of two

months from the date of communication of this judgment."

14. Aggrieved by the above order of the learned Single Judge, the Railways filed an appeal W.A. No. 156 of 2016 before the Division Bench (DB), which, by judgment dated 21st March 2017, allowed the appeal essentially on the ground that the writ petition ought not to have been entertained, since an alternative remedy was available to the Petitioner to go before the CAT. Accordingly, the impugned order of the learned Single Judge was set aside and the entire case record of OJC No. 15595 of 1998 was directed to be transferred to the CAT with a request to the CAT to dispose it of within a period of three months.

15. Thereupon, the said case was registered before the CAT as T.A. No. 260/006 of 2017 and came to be dismissed by the CAT by the impugned order dated 7th November, 2017. In the impugned order, the CAT first addressed the question whether the receipt dated 11th April 1997, copy of which was produced by the Petitioner along with his rejoinder in the aforementioned OJC No. 15595 of 1998 could be relied upon ? It was noted that there was no whisper of the said document in the main writ petition. The said document was produced only at a belated stage when the Petitioner filed a rejoinder on 20th November, 2013. By not producing such a material document for more than 15 years after filing of the writ petition, it was not possible for the Railways to verify its genuineness, particularly since by then the entire relevant record was itself not traceable.

16. The CAT then proceeded to deal with another aspect, viz., the written test held at part of the recruitment process. It was noted by the CAT that the written test was held on 3rd August, 1997 and the result thereof was published on 16th September, 1998. The counsel for the Railways had produced in the course of arguments a typed copy of the attendance sheet of the PH candidates dated 3rd August, 1997. It contained 15 names. There were signatures of 11 of the candidates who had attended the written test. Although, the name of the Petitioner figured at Sl. No.3, there was no signature. The CAT then observed that the since the name of the Petitioner was in the attendance sheet of the written examination "we have every reason to conclude that his application was received by the Railways". However, it was held that since the Petitioner did not appear in the written test, no fault could be found in the action of the Railways in omitting his name from the result sheet of the written examination. The CAT then observed as under:

"had the applicant appended the so called receipt dated 11.04.1997 (Annexure-A) while filing Writ Petition on 12.11.1998, the Hon'ble Court could have given a similar direction to arrange for his written test immediately. Since no receipt was filed, the Railway Board has pleaded that they have not received any application of the applicant, though such a plea was palpably wrong and erroneous. Admittedly, the applicant did not appear in the written examination on the scheduled date. Had he approached the Hon'ble High Court for not allowing him to appear in the written examination in spite of submission of his application on 11.04.1997, the matter would have been different."

17. Ms. P. Mishra, learned counsel for the Petitioner, contended that the CAT erred in disbelieving the Petitioner's contention that

his application was duly received by the Railways on 11th April, 1997 itself and particularly since the Railways could not dispute its authenticity by producing the original record. It was submitted that the Petitioner could not be blamed for the failure of the Railways to preserve the records since on his part, the Petitioner had taken all the necessary steps by filing the writ petition in 1998 itself. According to Ms. Mishra, the Petitioner was expected to be called for the Viva-Voce interview after having submitted his application and when he was not so called, he filed the writ petition.

18. The Court finds that the above submission overlooks an essential aspect of the matter, which has been noted by the CAT. The Petitioner very well knew when he applied for the post that he had to sit for the written examination and it was only after he qualified in the written examination, he would be called for the Viva-Voce test. In fact it is his case in para 6 of the present writ petition that he had 'neither been called upon to appear in the written test conducted for the recruitment....the result of which was published on 10.09.1998, nor he has been permitted to appear the viva-voce test....'.

19. In other words, the Petitioner was aware that he had to sit for a written test. Yet that was not his prayer when he filed writ petition OJC No. 15595 of 1998. The prayer was to quash the advertisement and in the alternative to declare him to be qualified in the written test and allow him to appear in the viva-voce test. Knowing well that the entire recruitment process had concluded by then, and the successful candidates had already been selected and

appointed, the Petitioner did not make an effort even then i.e. at the time of filing the writ petition in the year 1998 to make them parties and to seek a direction to the Opposite Parties-Railways to allow him to take the written test. There was no question of the Petitioner being allowed to appear at the viva-voce test without qualifying the written test.

20. Therefore, even if it is assumed that the Petitioner's application was indeed received by the Railways on 11th April, 1997, the fact remains that the Petitioner had to first qualify in the written test before he could be called for the viva-voce. Being aware of this requirement, the Petitioner ought to have filed an application before the CAT (and not this Court) for a direction to the Railways to permit him to sit for a separate written test. Had such a prayer been made, it was possible that the CAT might have, even at that stage, called for the record and verified if indeed the Petitioner's application had been received by the Railways and whether in fact his name figured in the attendance sheet in the written examination. If that was true, then the CAT could have directed that without prejudice to the rights and contentions of the parties, the Petitioner should be permitted to take a separate written test and if successful, to be called for a viva voce.

21. This is of course in the realm of conjecture at this stage. There would also been an additional problem to be surmounted. If all the 10 posts earmarked for OH candidates had been filled by then, the CAT would have had to require the Railways to create a supernumerary post to accommodate the Petitioner if it concluded

that the Petitioner had been denied appointment for no fault of his. This too now is in the realm of conjecture. All of this discussion is only to point out that to begin with the Petitioner was not before the right forum and in any event not with a petition with the right kind of prayers.

22. There is also the aspect of the Petitioner not producing all the relevant documents in his possession in the first instance and seeking directions to the Railways to produce the original record. The learned CAT is right in its observation that it is indeed puzzling that the Petitioner did not produce the most crucial evidence, i.e. the so-called document dated 11th April 1997 issued by the Railways acknowledging receipt of the Petitioner's application, for nearly fifteen years after he had filed the writ petition when he well knew that this was the main bone of contention. If indeed he had produced this important document right at the beginning along with his OA before the CAT in 1998 itself, then he could have sought a direction then and there to the Railways to produce the original record before the CAT so that the genuineness of the said receipt could be verified. A further direction could have been sought to the Railways to preserve the original record of the case as long as the petition was pending in the CAT. In the absence of any of these steps, it would be unfair to expect in 2017 when the CAT finally heard the case (or for that matter even in 2015 when the learned Single Judge of this Court heard the writ petition) that the Railways would have preserved the original record of a recruitment held in 1998, nearly two decades earlier.

23. While it is true that the Petitioner cannot be blamed for the judicial delay in disposal of his writ petition, at the same time the Railways can also not be blamed, in the absence of any direction issued in that regard by the Court, for not preserving the record of a recruitment that took place nearly two decades earlier. That apart, there were also the other issues as pointed out hereinbefore which made it difficult for any Court or CAT to redress the Petitioner's grievance. This was a 'hard case', and without seeking the appropriate legal remedies and before the right forum, such a 'hard case' cannot expect to make 'good law'.

24. The Petitioner did not have the benefit of proper legal advice and this was compounded by the complexities and endemic delays that beset our legal system. Not having correctly anticipated what was required to be done, and in good time, before the Courts or the CAT, in this kind of a case, the Petitioner made it difficult for the Court/CAT to be able to redress his grievance within the legally permissible boundaries of judicial review and in good time. In other words, without seeking a direction that the Petitioner should be permitted to sit in the written examination and again at a time proximate to the selection that had already taken place, any order passed at a subsequent point in time would not only be impractical but legally impermissible since it would adversely affect the rights of the others who were successful in the selection and were already appointed to the posts earmarked.

25. It was both impracticable and impermissible in law for the Petitioner to expect more than 20 years after the completion of the selection process, and in the absence of the original record of such selection, and with the essential facts being disputed, that he could still sit for the written exam and then appear for a viva voce and thereafter get appointed to a post advertised in 1997.

26. For all of the aforementioned reasons, no ground is made out for interference with the impugned order of the CAT. The writ petition is accordingly dismissed, but with no order as to costs.

27. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No.4798, dated 15th April, 2021.

(Dr. S. Muralidhar) Chief Justice

(K.R. Mohapatra) Judge A.Dash/PS.