Supreme Court of India
CHIEF EXECUTIVE OFFICER, N.S.S.O. & ORS.versusBISWA BHUSAN NANDI
- Citation
- 2008 INSC 993
- Decided
- 29 August 2008
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
The Supreme Court held that the assurance given to the High Court is absolute and the appeal under Article 136 is not maintainable; the appellant must comply with the High Court's order.
Summary
The case concerned a matriculate ex‑serviceman with over 15 years of defence service who applied for a Group‑C Data Entry Operator post where the essential qualification was graduation with mathematics or statistics. Under a 1986 DOPT notification and Rule 6 of the Ex‑Servicemen (Re‑employment) Rules, such ex‑servicemen were eligible for posts where graduation was required and technical experience was not essential. The applicant cleared the written exam and viva‑voce but was denied appointment on the ground that he lacked the stipulated mathematics/statistics subject. The Central Administrative Tribunal upheld the denial, but the Calcutta High Court set aside that order and directed the employer to accommodate the applicant in the applied post or an alternative suitable post within a specified period, to which the employer gave an assurance of compliance and sought extensions of time. The employer then filed a special leave petition under Article 136, contending that the assurance should not bind it. The Supreme Court held that the assurance given to the High Court was absolute, that the employer could not renege on it, and that the matter was not suitable for exercise of discretionary jurisdiction under Article 136. Consequently, the appeal was dismissed with costs.
Issues considered
- Whether the assurance given to the High Court binds the appellant and precludes the exercise of discretionary jurisdiction under Article 136 of the Constitution.
- Whether a matriculate ex‑serviceman is eligible for appointment to a Group‑C post where the essential qualification is graduation with mathematics or statistics, given the provisions of the Ex‑Servicemen (Re‑employment) Rules, 1979.
- Whether the appellant may be excused from complying with the High Court's direction by seeking extensions of time.
Legislation cited
- Constitution of Indias. Article 136
- Ex-Servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979s. Rule 6, s. Rule 6-A
Subjects
ex‑servicemenGroup C appointmentqualification requirementnon‑technical postassuranceArticle 136special leave petitionhigh court order complianceCentral Administrative Tribunal
Judgment
[2008] 12 S.C.R. 1060
~'.
A CHIEF EXECUTIVE OFFICER, N.S.S.O. & ORS. r
v.
BISWA BHUSAN NANDI
(Civil Appeal No. 5304 of 2008)
AUGUST 29, 2008
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]
Service Law - Appointment - Qualification of graduation
for Central Government Group C post not requiring technical
c or professional experience - Relaxed for matriculate ex-
servicemen with 15 years of defence service - Candidate-ex-
servicemen applied and qualified for the post, but denied
appointment - Central Administrative Tribunal upholding
denial - High Court holding him eligible for appointment -
Direction to the employer to accommodate him to the post
0
applied for or alternative suitable post within specified time -
Employer seeking extension of time with assurance to Court
to accommodate the candidate - On appeal, held: In view of
..
the exceptions carved out, the eligibility clause and since the
E post is non-technical, employer cannot be permitted to come
out of the assurance made to the court- Ex-servicemen (Re-
employment in Central Civil Services and Posts) Rules, 1979
- r.6.
By a Notification, ex-servicemen having Matriculate
F qualification with 15 years of defence service were made
eligible for being considered for appointment to Central
Government Group-C post for which essential
qualification was graduation and where technical or
professional experience was not essential. Vacancy was
G notified by the appellant for the post of Data Entry
Operator, Grade B. Respondent who was a Matriculate ;-~
and having 15 years of defence service, applied for the
same. He qualified in the written and viva-voce test, but
was denied appointment. His application challenging the
H 1060
CHIEF EXECUTIVE OFFICER, N.S.S.O. & ORS. v. 1061
BISWA BHUSAN NANDI
---~ order denying appointment was dismissed by Central A
Administrative Tribunal holding that since the requirement
for the post notified was not graduation simplicitor but
with Mathematics or Statistics, the respondent could not
have been considered for appointment. High Court
allowed the writ petition filed by the respondent and B
~ directed the appellant to accommodate the respondent
for the post for which he had applied or on a suitable
alternative post within specified period. Appellant sought
extension of time for compliance of its order giving
assurance to the Court that the respondent shall be c
accommodated. Such extension of time was sought from
High Court, even after they had approached this Court
J
' challenging its order.
'
' Dismissing the appeal, the Court
D
I~ HELD: 1.1 For all intent and purport, an assurance
had been given to the High Court that its order shall be
• complied with. The promise made was absolute and
unequivocal in nature. It is not a proper case for exercise
of discretionary jurisdiction under Article 136 of the
Constitution. Filing of an application for extension of time E
to comply with the order of the High Court by itself would
not be a bar to the appellant for filing a special leave
,,. petition, but in the instant case, an assurance was given
to the High Court that the respondent shall be
1 accommodated, despite filing of the special leave petition. F
[Paras 14, 15] [1068,8-C; 1067,G-H; 1068,A]
1.2 In view of the exceptions carved out, the eligibility
clause and as the post is non-technical in nature and,
thus, no experience on technical side was necessary,
G
'.M, the appellant should not be permitted to come out of the
representation made by it before the High Court. Appellant
nowhere took the stand that even upon grant of some
training, the respondent would not be able to perform the
job of a Data Entry Operator. It is also not their case that
H
1062 SUPREME COURT REPORTS [2008] 12 S.C.R.
A there was no vacancy in any other post. The appellant
also does not say that it committed any mistake in
verifying the application for recruitment filed by the
respondent. He was not only permitted to appear at the
written examination but was also permitted to appear in
B the interview. [Paras 13,15] [1068,A-B; 1067,E-G]
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 5304
of 2008
From the final Judgment and Order dated 20.06.2005 .1
c and 31.8.2005 of the High Court at Calcutta in W.P.C.T. No.
215 of 2005
V. Shekhar, Shalini Kumar, D.S. Mahra and 8. Krishna
Prasad for the Appellants.
Rajnaj Mukherjee and S.C. Goyal for the Respondents.
D
The Judgment of the Court was delivered by
5.8. SINHA, J. 1. Leave granted.
2. Respondent joined the Indian Air Force on 22.2.1978.
E He rendered more than 15 years' of service in the said
organization having worked till 28.2.1993.
3. The Department of Personnel and Training issued a \
notification dated 12.2.1986 in terms whereof, those candidates
who were matriculate and having put in not less than 15 years'
F of service in Armed Forces etc. were to be considered for
appointment to any Group - C post to which essential
qualification is graduation and where experience in technical
or professional nature is not essential:
G 4. Appellant herein -National Survey Organization is
established under the Department of Statistics of the
Government of India. The service conditions of its employees
are governed by the Rules framed by the President of India in l
r
exercise of his power under the proviso appended to Article
..
~
H 309 of the Constitution of India. In terms of the said notification,
CHIEF EXECUTIVE OFFICER, N.S.S.O. & ORS. v. 1063
BISWA BHUSAN NANDI [S.B. SINHA, J.]
amendment had been carried out in Ex-Servicemen (Re- A
employment in Central Civil Services and Posts) Rules, 1979.
In Rule 6 of the said Rules, after sub-rule (3), the following
sub-rules were inserted :
"(4) For appointment to any reserved vacancy in Group B
'C' posts, a matriculate Ex-servicemen (which term_
includes an ex-servicemen who has obtained the Indian
Army Special Certificate of Education or the
corresponding certificate in the Navy or the Air Force),
who has put in not less than 15 years of service in the c
Armed Forces, of the Union may be considered eligible
for appointment to the posts for which the essential
educational qualification prescribed is graduation and
where,-
(a) Work experience of technical or professional nature D
is not essential; or
•·
(b) Though non-technical profession work experience is
prescribed as essential yet the appointing authority
is satisfied that the ex-serviceman is expected to E
perform the duties of the post by undergoing on the
job training for a short duration."
After Rule 6, the following rule was inserted :
"6-A. Lower Standard for selection:-ln the case of direct
recruitment, if sufficient number of candidates belonging F
1
--' to ex-servicemen are not available on the basis of generai
standard to fill all the vacancies reserved for them,
candidates, belonging to the category of ex-servicemen
may be selected under a relaxed standard of selection to
make up the deficiency in the reserved quota a subject to G
the condition that such relaxation will not affect the level of
performance by such candidates."
5. Appellant organization issued a notification for filling up ·
56 vacancies for the post of Data Entry Operator, Grade B,
H
1064 SUPREME COURT REPORTS [2008] 12 S.C.R.
·~
'
A pursuant whereto the respondent also applied. He was permitted
to sit in the written examination. He was also interviewed.
An office memorandum was, however, issued on
12.2.1996 whereby he was denied appointment.
B 6. An original application was filed by the respondent ;t-
before the Central Administrative Tribunal challenging the validity
of the said order.
The Tribunal, by reason of a judgment and order dated
15.7.2003 dismissed the said application, stating :
c
"We have been taken through a notification passed hy the
Department of Personnel & Training. In the said notification
it has been clearly stated that while a defence personnel
has put in 15 years of service he can be considerE:-d for
being employed in the post where graduation qualification
D -t--
is prescribed. So far as his employment is concerned,
· where the qualification is prescribed as graduation, the ·•
applicant can no doubt be considered, but in the instant
case the respondents have prescribed the qualification of
graduation with _Mathematics or Statistics as one of the
E subjects. In the notification it was advertised that the
person having graduate qualification with mathematics or
Statistics shall be considered, but the applicant did not
possess either qualification. Therefore, the respondents
coulq not be found fault with for having not considered the
F
('-
applicant's application for the post of Data Entry Operator."
7. Aggrieved -by and dissatisfied therewith the appellant
filed a writ petition before the Calcutta High Court. By reason
of the impugned judgment, the said writ petition was allowed by
a Division Bench of the said' Court, opining : ~
G
"Here in, the present case, the petitioner was allowed to sit
for such written test as well as viva-voce test and,
· admittedly, he qualified in both the tests. This significant
aspect· does not appear to have been taken into
H consideration by the Tribunal which being guided by the
CHIEF EXECUTIVE OFFICER, N.S.S.O. & ORS. v. 1065
BISWA BHUSAN NANDI [S.B. SINHA, J.]
../.,
"" technicalities in interpreting the qualification required for A
being eligible to recruit as Data Entry Operator. It cannot
be denied that the petitioner was having the reasonable
expectation in view of his passing of the written test and
viva voce test. Therefore, the question remains as to how
far the authority was justified in refusing to give appointment B
/~ to the petitioner on the ground that the notification dated
12.2.1986 brought him at par with the people having
qualification as graduate but in view of the specific
qualification required for recruitment to the post of Data
Entry Operator, the present petitioner could not have any c
claim. In the peculiar background of the present case, as
indicated hereinbefore, we find it _difficult to accept this
contention. Here the petitioner not only passed both the
written and the viva voce tests, being an Ex-Serviceman
having putting more than 15 years of service in Indian Air
D
..... Force, his matriculation qualification brought him at par
with those having graduation. In absence of any clarifying
• clause in the notification dated 12.2.1986, it may be unjust
in the background of the present case to deny the
petitioner an appointment mainly on the ground that the
essential. qualification required for the post of Data Entry E
Operator, Gr.B, was graduation with Mathematics and
Statistics. In such circumstances, we c:tre unable to accept
the contentions made by the learned counsel for the
respondent authorities and in our view, the stand taken by
• the Tribunal is inherently inappropriate."
It was directed :
F
"In these circumstance, the order impugned dated
15.7.2003 passed by the Tribunal is set aside. The
"-'.
respondent authorities are directed to accommodate the G
petitioner in the post of Data Entry Operator, Gr.B, within
a period of three ·months from the date of communication
of this order and for any reason it cannot be made
possible, the present petitioner may be accommodated
in a suitable alternative post within the saLd period." H
~'
1066 SUPREME COURT REPORTS [2008) 12 S.C.R.
).--~
A 8. Mr. V. Shekhar, learned senior counsel appearing on
behalf of the appellant, would content that as was rightly held by
the learned Tribunal that it was not a case where the eligibility
criterion was 'graduation in any stream simplicitor as the
candidate was required to be a graduate having mathematics
B or Statistics as a compulsory subject.
.R-
9. It is not a case where work experience of technical or
professional nature was essential. Even in a case where
experience in non-technical professional work was experience
although prescribed as essential yet in a case where the
c appointing authority is satisfied that the ex-serviceman is
expected to perform his duties in the post by undergoing 'on
job training' for a short duration in terms of sub-rule 4 of Rule
6, as amended, such appointment could have been made.
1 O.The High Court, keeping in view the peculiar facts and
D ~'
circumstances of this case, did not direct that the respondent f
must be appointed in the post of Data Entry Operator, Grade ..
B. What was observed by the High Court was that he deserved
to be accommodated for the post for which he had submitted
the application. The High Court furthermore opined that if for
E some reason, it is not possible to appoint him in the post of .
Data Entry Operator, the respondent may be accommodated
on a suitable alternative post within the period specified therein.
The said order indisputably has not been complied with.
F 11. An application was filed by the appellant for extension
of the said period before the Division Bench of the High Court.
By an order dated 31.8.2005, it was directed :
"The time as granted by the said order to the respondent
authorities for accommodating the petitioners in the post
G of Data Entry Operator (Gr.B), or any other arternative ')l.....J_
· suitable post as per the said order shall stand extended
bye a further period of three months from date."
12. A special leave petition was filed before this Court
questioning the correctness of the aforementioned judgment of
H
CHIEF EXECUTIVE OFFICER, N.S.S.O. & ORS. v. 1067
BISWA BHUSAN NANDI [S.B. SINHA, J.]
,.,. ~.J, the High Court on or about 2.1.2006. Appellant did not make A
any effort for taking up the matter urgently.
Despite pendency of the special leave petition, an
application again was filed before the Calcutta High Court in
February 2006 for extension o~ time. The High Court was given
an assurance that the competent authorities of the appellant 8
/~
would certainly comply with the earlier directions of the Court.
Only on the basis of the said representation, by an order dated
17.1.2006 the High Court directed :
"While seeking extension of time to comply with the c
direction of this Court, it is categorically submitted by the
learned counsel for the respondent that if some time is·
given the authority concerned will certainly comply with the
earlier direction in a way of accommodating the petitioners
in the post of Data Entry Operators (Group '8') or in any
D
other alternative suitable post. Though opposed, such time
is granted till 31st March, 2006, as prayed for, and it is
"""
.. expected that the Court will not be embarrassed any further
and in default resulting severe consequences."
13. In the aforementioned circumstances, in our opinion, E
it is not a fit case where this Court should exercise its
discretionary jurisdiction under Article 136 of the Constitution
of India. Appellant nowhere took the stand that even upon grant
of some training, the respondent would not be able to perform
the job of a Data Entry Operator. It is also not their case that .F
there was no vacancy in any other post. The appellant also
does not say that it committed any mistake in verifying the
application for recruitment filed by the respondent. He was not
only permitted to appear at the written examination but was
also permitted to appear in the interview.
G
14. We are not oblivious of the fact that filing of an
. M'\
application for extension of time to comply with the order of the
High Court by itself would not be a bar to the appellant for filing
a special leave petition; but in this case, an assurance was
given to the High Court that the respondent shall be H
1068 SUPREME COURT REPORTS [2008] 12 S.C.R.
A accommodated, despite filing of the special leave petition.
15. In view of the exceptions carved out, the eligibility
clause and as the post is non-technical in nature and, thus, no
experience on technical side was necessary, we do not think
that the appellant should be permitted to come out of the .
8 representation made by it before the High Court.
We have noticed hereinbefore the tenor of the order
passed by the High Court on 12.2.2006. For all intent and
purport, an assurance had been given to the High Court that its
c order shall be complied with. The promise made was absolute
·and unequivocal in nature. We, therefore, do not think it to be
a proper case for exercise of our discretionary jurisdiction under
Article 136 of the Constitution.
16. For the reasons aforementioned, the impugned
D judgment needs no interference. The appeal is dismissed
accordingly with costs. Counsel's fee assessed at Rs.50,000/
- (Rupees fifty thousand only).
K.K.T. Appeal dismissed.
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