Union of India (UOI) and Others vs Ram Surat and Others

Heard Sri Singhal, learned Asstt. Solicitor General of India assisted by Sri Amit Sinha, learned advocate in support of this petition and Sri K.N. Yadav, Learned Advocate for the Respondent No. 1.

Challenge in this petition is the order of the Central Administrative Tribunal dated 17.1.2011 which has been passed in Contempt Application No. 55 of 2008 arising out of the O.A. No. 896 of 2000 decided on 3.1.2006.

By the impugned order the facts as placed before the Tribunal by means of counter affidavit has been rejected and time has been given to the present Petitioner to comply the order of the Tribunal dated 3.1.2006 passed in O.A. No. 896 of 2000.

For disposal of the matter, the facts in brief will suffice.

There was a selection in the year 2000 for the post of Extra Departmental Agent in which one Rama Kant, Respondent No. 3 was finally selected. Although the basic qualification was informed to be the Junior High School but preferential qualification was also mentioned as High School. Respondent No. 1 filed O.A. No. 896 of 2000 challenging the appointment/selection of Rama Kant/Respondent No. 3 which was finally allowed and a finding was given that as both were having High School qualification, and therefore the marks received by them in the Junior High School will have preference and decisive factor in the selection, and therefore, final direction was given that the applicant Ram Surat be given appointment.

The order passed by the Tribunal dated 3.1.2006 was challenged by Rama Kant by filing writ petition but in the meantime he got the job in some other department, and therefore, having no interest left his writ petition was dismissed as infructuous.

It is thereafter after about 3-4 years Petitioner filed writ petition in this Court i.e. writ petition No. 11405 of 2011 which was dismissed on 24.2.2011 and an observation was made that in the contempt proceeding in respect to the dispute/issue of incorrect mark-sheet having been filed by the Respondent No. 1 about his marks in the Junior High School the issue may be raised before the Tribunal who may examine the same.

The Tribunal now after examining that aspect has passed the impugned order.

Submission of the learned Counsel for the Petitioner is that as High School was mentioned to be preferential qualification, and therefore, irrespective of the final decision given by the Tribunal in view of the decision given by the Apex Court in case of Surinder Singh Vs. Union of India (UOI) and Others, that was required to be taken into account and thus Rama Kant having secured more mark than Respondent No. 1 was rightly selected but at the same time if the mark of the Junior High School was taken into account then also other candidates who have secured more marks than Respondent No. 1 were also to be considered and on that account if order of the Tribunal dated 3.1.2006 has not been complied with, then it cannot be a case for proceeding in the contempt and thus the direction as given has been rightly impugned in this petition.

In support of his submission a chart of the marks obtained by some of the candidates in the Junior High School has been filed along with supplementary affidavit.

In response to the aforesaid, learned Counsel for the Respondent submits that all these issues have already been argued, considered and finally adjudicated by the Tribunal and also by this Court and therefore, submission of the learned Counsel for the Petitioner for taking into account the marks secured by the Respondent No. 1 and Respondent No. 3 or by other candidates in the High School and otherwise about the marks obtained by some other candidates in Junior High School is totally misconceived and that is not to be taken into account.

Submission is that judgment between the Petitioner and Respondent No. 1 in respect to giving of the appointment on the basis of marks secured in the Junior High School having become final now it is for the Petitioner to ensure its compliance.

There is no dispute about the fact that O.A. filed by the Respondent No. 1 i.e. O.A. No. 896 of 2000 was finally allowed on 3.1.2006. The order of the Tribunal was challenged by Rama Kant who was given appointment but that petition was dismissed as infructuous.

No other candidate either on the ground of having secured higher marks or otherwise on any ground has challenged the appointment of Rama Kant either before the Tribunal or before this Court.

After about 4 years Petitioner filed writ petition i.e. writ petition No. 11405 of 2011 upon which this Court considered the matter and recorded a categorical finding that Petitioner did not challenge the order dated 17.1.2011 by which Tribunal has directed the Respondent to ensure compliance of the earlier order. At the same time this Court further observed that inordinate delay in filing writ petition is not to be condoned.

Observations as made by this Court in the order dated 24.2.2011 by which writ petition filed by the Petitioner before this Court was dismissed, is quoted below-

Shri Ram Surat thereafter filed a contempt petition in which a defence was taken by the Petitioners, that his mark sheet of Class-VIII sent subsequently for verification was found forged. The Tribunal has, in paragraph-5 of its order dated 17.1.2011, recorded an opinion, that there is only an error in the mark sheet. The applicant secured 471 marks out of 650, and hence percentage comes to 62.8%. The objections taken by the Respondents in the Tribunal that 471 marks have to be calculated out of 750 and not out of 650, could be a mistake. The marks have to be calculated out of the total 650 as given in the mark sheet. The Principal of the School has not alleged that applicant was responsible for showing 650 marks in the marks sheet.

(Emphasis supplied by us)

The Union of India has not challenged the order passed in the contempt petition by which an opportunity has been given to the Petitioners to comply with the order dated 3.1.2006.

(Emphasis supplied by us)

So far as this writ petition is concerned, we are not satisfied that the Petitioners have explained the delay of four years and 317 days in filing the writ petition.

(Emphasis supplied by us)

Further in the last line this Court just made an observation that it will be open for the Petitioner either to comply the order of the Tribunal or challenge the order passed in the contempt petition as the case may be. The Tribunal must ensure that a person, who is alleged to have forged the mark sheet (a fact discovered on verification, subsequent to the judgment) does not secure employment in the anxiety of compliance of its orders. The Tribunal even in contempt case can record a findings, if there is any allegation of fraud or mis-representation.

The Tribunal has made it clear that in view of the certificate issued by the Principal, Respondent No. 1 has secured 471 marks out of 650 and not out of 750 and thus Petitioner has not committed any forgery and it is just mistake of the college.

The order passed by the Tribunal dated 3.1.2006 by which claim of the Respondent No. 1 has been finally accepted and he has been directed to be given appointment has attained finality between the parties.

Sri Rama Kant who has earlier challenged the order passed by the Tribunal got his petition dismissed as infructuous.

On these facts, it is clear that as on date the order passed by the Tribunal which is between present Petitioner and Respondent No. 1 is final and therefore submission that in view of judgment given by the Apex Court as noted above, Petitioners are free not to comply the orders of the Tribunal appears to be totally misconceived.

Be as it may, Tribunal has not yet passed any final order and a final decision is to be taken by the Tribunal.

On the facts and totality of the circumstances, we are of the considered view that Petitioner has tried to raise same plea which was earlier taken in the earlier proceedings before the Tribunal and before this Court which was negatived. The matter is still pending and is to be finally decided by the Tribunal and therefore, we are not to intervene in this petition.

Writ petition accordingly fails and is dismissed.