UNION OF INDIA AND ORS.versusSHANTIRANJAN SARKAR

                            [2009] 1 S.C.R. 242


A                    UNION OF INDIA AND ORS.
                                   v.
                      SHANTIRANJAN SARKAR
                    (Civil Appeal No. 103 of 2009)
                          JANUARY 13, 2009
B
               [S.B. SINHA AND J.M. PANCHAL, JJ.]

       Service law: Appointment - Scheduled Caste - Held:
  Member of Scheduled Caste, notified in any of the States
c within the territories of India, having regard to the provisions
  contained in Article 341 of Constitution, is entitled to get the
  benefit of the said status for the purpose of entering into
  Central Civil service - On facts, respondent was Scheduled
  Caste - He was not appointed because of a mistake
D committed on part of authorities - Delay in filing original
  application would not be bar in granting him equitable relief
  - Union of India as a benevolent litigant cannot be permitted
  to take advantage of its own wrong - Constitution of India,
  1950 - Article 341 - Equity- Delay and /aches.
E
        Government litigation: Suppression of material facts -
    Union of India in its list of dates, did not state that the original
    order of the High Court was recalled and reviewed by Division
    Bench of the said Court - Held: They are guilty of
    suppression of material facts.
F
      Respondent applied for the post of Postman/Mail
  Guard and appeared in the examination held in 1997. No
  one qualified in the said examination. Subsequently,
  some other· examinations were also held in which the
G respondent participated. Respondent was a member of
  scheduled caste. He filed several representations before
  the various authorities contending that his candidature                  -y
  was not considered despite the fact that he obtained
  more than 30% of marks which was cut off mark for the
H                            242
    UNION OF INDIA AND ORS. v. SHANTIRANJAN SARKAR 243


    members of scheduled castes/ tribes. There was no              A
#
    response to the said representations. He filed original
    application, which was dismissed on the ground of
    limitation and also on merit.

         Aggrieved respondent filed writ petition which was
                                                                   B
    initially dismissed on 9.7.2004. However, a review
    application filed was allowed on 30.11.2004. On 11.4.2005,
    High Court allowed the writ petition.

         In appeal to this Court, appellants contended that the
    High Court failed to take into consideration that the          c
    respondent failed to pass the tests held in 1997 and
    furthermore, appeared in the subsequent examinations,
    had no right to be appointed and no direction for his
    appointment in the Post of Peon or Group 'D', thus, could
    be issued; and that respondent having applied against          D
    the vacancy in the 'OC' category and not in the category
    of 'Scheduled Caste', it was obligatory on him to obtain
    the qualifying marks of 45% which he failed to obtain.
        Dismissing the appeal, the Court
                                                                   E
         HELD: 1. The fact that the respondent is a member
    of Scheduled Caste is not in dispute. His name figured
    at S.No. 124 of the seniority list of Oak Sevakas in A & N
    Islands Divisions, Port Blair. It has not been denied that
    in Central Administrative Services, a person belonging to F
    Scheduled Caste in any State would be deemed to be a
    member of the Scheduled Caste. Respondent,
                                        I
                                                    therefore,
    should have been treated to be a member of 'Schedule
    Caste' for the purpose of consideration of his
    candidature. [Para 10) [247-F-G]                           G
        2. The High Court in its impugned order categorically
    held that the appellants at no point of time denied that the
    respondent had obtained marks more than 30% but less
    than 45%. The High Court furthermore noticed that the
                                                                   H
   244       SUPREME COURT REPORTS              [2009] 1 S.C.R.


A notification dated 9.06.1989 issued by the Director of
  Postal Services in categorical terms stated that his status
  of the Scheduled Castes should be accepted and
  recognized in the department examination. A member of
  Scheduled Caste, thus, notified in any of the States within
B the territories of India, having regard to the provisions
  contained in Article 341 of the Constitution, was entitled
  to get the benefit of the said status for the purpose of
  entering into Central Civil service. The High Court
  furthermore rightly held that as a member of the ·
c Scheduled Caste, the respondent was entitled to the
  benefit of the lower percentage of marks, viz., 30% in the
  departmental examination for promotion from the post of
  Extra-Departmental Mail Guard to the Post of Peon or
  Group 'D'. If thus, for the reasons known to the
  respondent that he was entitled to the benefit of the status
0
  of the Scheduled Caste in the Andaman and Nicobar
  Islands, irrespective of the fact that the advertisement
  issued recognized only two categories of reserve
  categories, viz., Scheduled Tribes and 'OC' , there was no
E reason to deprive the respondent from the said benefit.
  Respondent, therefore, was not appointed because of a
  mistake committed on the part of the authorities. They,
  thus, cannot be permitted to take advantage of the same.
  In that view of the matter, the delay in filing the original
  application should not be held to be a bar in granting him
F an equitable relief. Union of India as a benevolent litigant
  cannot be permitted to take advantage of its own wrong.
  Furthermore, the appellants are guilty of suppression of
  materials facts before this Court. It, in its list of dates, did
  not state that the original order of the High Court dated
G 9.07.2004 had been recalled and reviewed by the Division
  Bench of the said Court by an order dated 30.10.2004.
  [Paras 11 and 14) (248-A-H; 248-A)
       CIVIL AP PELLATE JURISDICTION : Civil Appeal No. 103
H of 2009.
      )


          UNION OF INDIA AND ORS. v. SHANTIRANJAN SARKAR 245


              From the Judgment and final Order dated 11/4/2005 of the       A
          High Court of Calcutta in Review Petition No. 009 of 2004 in
          WPCT No. 194 of 2003.

                8. Datta, ASG, Rajni Ohri, 8.1<. Prasad and V.K. Verma
          for the Appellants.                                                8
               Sarada Devi for the Respondent.
,._
               The Judgment of the Court was delivered by

               S.B. SINHA, J. 1. Leave granted.                              c
               2. Appellants are before us aggrieved by and dissatisfied
          with the judgment and order dated 11.04.2005 passed by a
          Division Bench of the High Court of Calcutta, Circuit Bench at
          Port Blair whereby and whereunder the writ petition filed by the
          respondent herein was allowed.                                     D

               3. The basic fact of the matter is not in dispute.

                An advertisement was issued for filling up the post of
          Postman/ Mail Guard under the quota of Extra-departmental
                                                                             E
          candidate at Andaman and Nicobar Island, Port Blair.                   ,,
          Respondent herein pursuant thereto or in furtherance thereof
          applied for the said post. He appeared at an examination held
          for the said purpose. On or about 18.11.1997, the purported
          results of the said examination were published with the remarks
          "none qualified".                                                  F

              4. Subsequently, some other examinations were also held
          in which the respondent participated. Indisputably, he was a
          member of the Scheduled Caste. He filed several
          representations before the concerned various authorities           G
          contending that his candidature had not been considered
          despite the fact that he had obtained more than 30% of marks
          which was the cut-off mark for the members of the Scheduled
          Castes and Scheduled Tribes. As the said representations
          were not responded to, he filed an original application before     H
    246          SUPREME COURT REPORTS               [2009] 1 S.C.R.


A the Central Administrative Tribunal, Calcutta Bench, Kolkata.
   The said original application was dismissed on 12.9.2003 on
 · the ground of limitation as also on merit, stating:

          "Considering the respective contentions of the Id.
          Counsels for both sides, we find that the applicant having
B
          not been qualified in the written test as well as in the
          interview does not acquire any legal or enforceable right
          to seek employment for the post. In the result, the
          application is dismissed without any order as to cost."
c        5. Respondent filed a writ petition before the High Court
    questioning the legality and/or validity of the said judgment and    '··
    order which was marked as WP CT No. 194 of 2003. The said
    writ petition was initially dismissed on 9.7.2004 by a Division
    Bench of the Calcutta High Court, stating:
D
          "Therefore, although, we do not approve the reason
          assigned by the Tribunal, we are not inclined to entertain
          this application as the ultimate conclusion of the Tribunal
          that the petitioner was not entitled to get any relief was
          correct. As indicated above, the Tribunal ought to have
E
          rejected the application only on the ground of limitation."

       6. However, a review application filed thereagainst was
  allowed. By reason of the impugned judgment dated
  11.04.2005, the High Court has allowed the said writ
F application.

        7. Mr. B. Datta, learned Additional Solicitor General
    appearing on behalf of the appellants, would contend:
           (i)   the High Court committed a serious error insofar as
G                it failed to take into consideration that having
                 regard to the fact that the respondent failed to pass
                 the tests held in the year 1997 and furthermore,
                 having appeared in the subsequent examinations,
                 had no right to be appointed and no direction for
H                his appointment in the post of Peon or Gr.cup 'D',
UNION OF INDIA AND ORS. v. SHANTIRANJAN SARKAR 247
                 [S.B. SINHA, J.]
             thus, could be issued by the High Court.               A

      (ii)   Respondent having applied against the vacancy in
             the 'OC' category and not in the category of
             'Scheduled Caste', it was obligatory on him to
             obtain the qualifying marks of 45% which he having     8
             failed to obtain, the impugned judgment is wholly
             unsustainable.

     8. Mrs. Sarda Devi, learned counsel appearing on behalf
of the respondent, however, would support the impugned
judgment.                                                    C

     9. Before adverting to the contentions raised before us by
the learned counsel for the parties, we may notice that the
appellants suppressed a material fact. It appears that the fact
that the High Court had recalled its earlier order dated            0
9.07 .2004 by an order dated 30.11.2004 had not been
mentioned in the list of dates. This Court, therefore, must have
proceeded on the basis that the impugned order was passed
on a review application and not in the original writ proceedings.
We do not find appropriate words to deprecate such a practice       E
and that too by the Union of India. We should have dismissed
the Special Leave Petition on this ground alone.

    Let us, however, also consider the merit of the matter.

     10. The fact that the respondent is a member of F
Scheduled Caste is not in dispute. His name figured at SI.No.
124 of the seniority list of Oak Sevakas in A & N Islands
Divisions, Port Blair. It has not been denied or disputed before
us that in Central Administrative Services, a person belonging
to Scheduled Caste in any State would be deemed to be a G
member of the Scheduled Caste.

     Respondent, therefore, should have been treated to be a
member of 'Schedule Caste' for the purpose of consideration
of his candidature.
                                                                    H
    248        SUPREME COURT REPORTS                 [2009] 1 S.C.R.


A         11. The High Court in its impugned order categorically held
    that the appellants at no point of time denied or disputed that
    the respondent had obtained marks more than 30% but less
    than 45%. The High Court furthermore noticed that the
    notification dated 9.06.1989 issued by the Director of Postal
a   Services, A & N Islands in categorical terms stated that his
    status of the Scheduled Castes should be accepted and
    recognized in the department examination. A member of a
    Scheduled Caste, thus, notified in any of the States within the
    territories of India, having regard to the provisions contained
c   in Article 341 of the Constitution, was entitled to get the benefit
    of the said status for the purpose of entering into Central Civil
    Service ..

       12. The High Court furthermore has rightly held that as a
  member of the Scheduled Caste, the respondent was entitled
D to the benefit of the lower percentage of marks, viz., 30% in
  the departmental examination for promotion from the post of
  Extra-Departmental Mail Guard to the Post of Peon or Group
  'D'.

E      13. If, thus, for the reasons known to the respondent that
  he was entitled to the benefit of the status of the Scheduled
  Caste in the Andaman and Nicobar Islands, irrespective of the
  fact that the advertisement issued recognized only two
  categories of reserve categories, viz., Scheduled Tribes and
F 'OC', there was no reason to deprive the respondent from the
  said benefit. Respondent, therefore, was not appointed
  because of a mistake committed on the part of the authorities
  of the appellants. They, thus, cannot be permitted to take
  advantage of the same.
G      14. In that view of the matter, the delay in filing the original
  application should not be held to be a bar in granting him an
  equitable relief. Union of India as a benevolent litigant cannot
  be permitted to take advantage of its own wrong. Furthermore,
  the appellants are guilty of suppression of material facts before
H this Court. It, in its list of dates, did not state that the original
UNION OF INDIA AND ORS. v. SHANTIRANJAN SARKAR 249
                 [S.B. SINHA, J.]

order of the High Court dated 9.07.2004 had been recalled and    A
reviewed by the Division of the said Court by an order dated
30.10.2004.

    15. For the reasons aforementioned, the impugned
judgment should not be interfered with and is directed           8
accordingly. The appeal is dismissed with costs. Counsel's fee
assessed at Rs.1,00,000/-.

D.G.                                      Appeal dismissed.