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Nilima Dole v. Union Of India

Central Administrative Tribunal

Aug 30, 2007

Judgment

Subsequent
References

CaseIQ

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Structured Summary of the Opinion by A.K. Gaur, Judicial Member

Factual and Procedural Background

The applicant, then working as a Postal Assistant, applied pursuant to an advertisement dated 11.3.2004 for fast-track promotion from Postal Assistant to LSG grade. The departmental examination was scheduled from 26.5.2004 to 28.5.2004. The departmental promotion scheme provided two routes: 33.34% of vacancies for promotion from Postal Assistant with at least 16 years' regular service and 66.66% by limited departmental examination from Postal Assistants with at least 10 years' regular service.

The applicant was declared successful from Durg Division and an order dated 20.12.2004 (Annexure-A-3) and a promotion/posting order dated 12.4.2005 (Annexure-A-4) placed the applicant as Assistant Sub-Postmaster at Bhilai-1; the applicant is said to have been performing duties from 15.4.2005.

Subsequently a communication (referred to as a memorandum dated 24.5.2006 in the opinion) indicated that another candidate, Shri K.K. Dewangan, had secured more marks and that the applicant's name would be deleted from the select list (a show cause notice was also issued: Annexure-A-6). The applicant submitted a representation dated 25.6.2006 (Annexure-A-9) and filed Original Application No. OA-485 of 2006. This Tribunal, by order dated 19.7.2006, directed respondents to consider the representation with an opportunity for personal hearing (Annexure-A-10). The respondents passed an order of reversion (deleting the applicant's name) dated 29.8.2006 (Annexure-A-1), and the applicant challenged that order in the present Original Application seeking quashing of the Memorandum dated 29.8.2006 and a direction that respondents not disturb her present assignment as Assistant Sub-Post Master, Bhilai-1.

Legal Issues Presented

Whether the respondents lawfully reviewed the result of the departmental fast-track promotion examination and deleted the applicant's name from the select list after discovering that another candidate had obtained higher marks.
Whether the deletion of the applicant's name and consequent reversion required prior inquiry or an opportunity of hearing to the applicant before taking that decision.
Whether the respondents were barred from entertaining a representation (or from reviewing the select panel) after the expiry of a specified time-period (for example, six months) or because the panel had allegedly expired.
Whether an erroneously conferred benefit to a candidate can be withdrawn by the employer/authority once the mistake is discovered, and what legal consequences flow from that principle in the present facts.

Arguments of the Parties

Applicant's Arguments

The applicant contended that the order deleting her name (Annexure-A-1) was illegal, arbitrary and without jurisdiction and that the competent reviewing authority (CPMG, Raipur) had not given her an opportunity of hearing before deletion.
It was argued that no inquiry was held and the reversion was a sequela of a pre-determined decision.
The applicant relied on departmental rules or guidelines argued to the effect that representations/applications should not have been entertained after six months from the date of announcement of the result and asserted that review was impermissible because the select panel had expired after one year and answer books are preserved only for one year.
The applicant also suggested that if a proforma promotion had been given to Shri Rajendra Kumar, the applicant could have been adjusted against any remaining vacancy instead of deletion from the panel.

Respondents' Arguments

The respondents denied the applicant's contentions and explained that Shri K.K. Dewangan submitted a representation dated 25.1.2006 questioning why three candidates were declared successful against two vacancies; the Chief Postmaster General reviewed the result and discovered that the applicant had been mistakenly declared successful despite having obtained fewer marks than Shri K.K. Dewangan.
Based on the review, the applicant's name was deleted from the list of successful candidates (Circle Office memo dated 16.12.2004 revised), and a show cause was issued (25.4.2006); after consideration of the applicant's representation and a personal hearing, deletion was ordered on 29.8.2006.
The respondents contended that an erroneous benefit conferred on a person can be withdrawn without notice or opportunity and that such benefit is not liable to be extended; reliance was placed on several precedents to support non-requirement of hearing and the withdrawability of erroneous benefits.
The respondents further argued that until a person is finally selected, she has no right to seek mandamus; therefore the applicant could not claim an enforceable right to remain on that post.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Md. Sartaz Vs State of U.P., 2006(2) SCC 315	Cited for the proposition that an erroneous benefit given to a person can be withdrawn.	The court noted this authority was relied upon by respondents to support withdrawal of mistaken promotions/benefits; the court accepted the general principle that erroneous benefits may be withdrawn.
Laxmikant and others Vs Satyawan and others, AIR 1996 Supreme Court 2052	Cited alongside Md. Sartaz for the same principle that an erroneous benefit may be withdrawn without extending its benefit.	The court treated this as supporting authority for the proposition that deletion of an erroneously conferred selection is permissible.
Union of India and others Vs. Tarun K. Singh and others, 2004 SCC (L&S) 316	Cited for the proposition that unless and until a person is finally selected, she has no right to seek a direction for mandamus.	The court relied on this to support the respondents' contention that the applicant had no enforceable right to remain once selection was shown to be incorrect.
Karnataka Power Corporation Limited Vs. A.T. Chandrashekhar, 2007(3) Scale 674	Cited for the proposition that an individual candidate need not always be given an opportunity of hearing before administrative action altering selection status is taken.	The court expressly considered this authority and accepted that the principle applies to the facts: no prior hearing was required before deletion of the applicant's name.
Ram Priti Yadav Vs. U.P. Board of High Schools and Intermediate Education, 2003(8) SCC 311	Cited to support the proposition that administrative decisions altering examination/selection results may not require individualized hearings in certain circumstances.	The court relied on this decision to buttress the conclusion that deletion without a prior hearing was not impermissible here.
The Bihar School Examination Board Vs. Subhash Chandra Sinha, AIR 1970 SC 1289	Cited for the same general principle about non-requirement of opportunity of hearing in the context of examination/selection result corrections.	The court considered this authority and concurred that the applicant's claim that deletion was effected without inquiry was without merit.

Court's Reasoning and Analysis

The court examined the documentary record and the submissions of learned counsel for both sides. The factual matrix established by the respondents was that Shri K.K. Dewangan scored 156 marks (Paper I 57, Paper II 45, Paper III 54, Roll No. CG/04/LSG/Exam/30) while the applicant, Smt. Nilima Navin Dole, scored 154 marks (Paper I 46, Paper II 57, Paper III 51, Roll No. CG/04/LSG/Exam/37). The panel had apparently declared the applicant successful where on a review it was discovered that Shri K.K. Dewangan had more marks.

The court accepted the respondents' account that the Chief Postmaster General reviewed the result after receiving Shri K.K. Dewangan's representation and discovered a mistake in the declaration of successful candidates. On discovery of that mistake the result was revised and the applicant's name deleted from the list of successful candidates.

The court addressed the applicant's procedural objections, notably that no inquiry or hearing was held before deletion, and that departmental guidelines disallowed consideration of representations after six months or that the select panel had expired after one year. Relying on the cited Supreme Court precedents, the court concluded that (i) an erroneous benefit extended to a person may be withdrawn; (ii) in the circumstances of this case, no prior opportunity of hearing was required before deleting the applicant's name; and (iii) the departmental guidelines invoked by the applicant about six-month limitation and answer-book preservation were not statutory and thus had no foundation for barring the review.

Weighing the evidence (the comparative marks) and the legal authorities, the court found no illegality or jurisdictional error in conducting the review and ordering deletion. The court further observed that nothing in the applicant's rejoinder raised any new matter that would alter the conclusion.

Holding and Implications

HOLDING: The Original Application is dismissed. The court held that the deletion of the applicant's name from the list of successful candidates and consequent reversion was lawful and that no interference was warranted.

Implications:

The direct effect is that the respondents' action deleting the applicant's name from the select list and reverting her from the promoted post is upheld.
The court found no illegality or error of jurisdiction in the reversion order and accordingly dismissed the application as having no merit.
No costs were awarded.
The opinion does not purport to lay down any new law; it applies existing Supreme Court authorities to the facts and confirms the principle that erroneous benefits may be withdrawn and that in the circumstances of this case no prior hearing was required.

Signed: (A.K. Gaur) Judicial Member; (Dr. G.C. Srivastava) Vice-Chairman

Show all summary ...

By A.K.Gaur, Judicial Member:- Through this Original Application the applicant has prayed for quashing of the Memorandum dated 29.8.2006 (Annexure-A-1) and further prayed that the respondents be directed not to disturb the applicant from his present assignment as Assistant Sub-Post Master, Bhilai-1.

2. Brief facts of the case are that while working as Postal Assistant the applicant applied in pursuance of an advertisement dated 11.3.2004 with regard to promotion of Postal Assistant to LSG Grade as Fast Track promotion. The examination for LSG grade was scheduled to be held from 26.5.2004 to 28.5.2004. It is urged on behalf of the applicant that in the Department of Respondents 33.34% of the vacancies are fixed for promotion from Postal Assistant, who have to put in not less than 16 years of regular service and the second way of recruitment in LSG cadre is 66.66% promotion through a limited departmental examination from the post of Postal Assistant, who had put in not less than 10 years of regular service with the respondents. The applicant was found successful and was accordingly selected from Durg Division in the promotion to LSG cadre. A copy of the order dated 20.12.2004 has been annexed as Annexure-A-3. Vide order dated 12.4.2005 the applicant was promoted and posted as Assistant Sub-Postmaster at Bhilai-1 Sector, Annexure-A-4. It has been contended on behalf of the applicant that ever since 15.4.2005, the applicant has been performing her duties, functions on the post of Assistant Sub-Postmaster. While working on the aforesaid post the applicant was shocked and astonished to receive the memorandum dated 24.5.2006 whereby the respondent No.3 observed by stating that in the examination in question i.e. (Departmental Examination of Fast Track Promotion to LSG cadre for the year 2004) , one Shri K.K.Dewangan secured more marks than the applicant and as such the name of Shri K.K.Dewangan is to be placed in the place of the applicant and the name of the applicant will be deleted from the select list of successful candidates notified on 16.12.2004. A show cause notice was also issued to the applicant in this regard (Annexure-A-6). After receipt of the show cause notice the applicant in order to gather some more information applied under Right to Information Act. The applicant submitted a representation through Proper Channel on 25.6.2006 explaining her conduct (Annexure-A-9). Before receiving any order on her representation she approached this Tribunal by way of filing OA-485 of 2006. Vide order dated 19.7.2006 this Tribunal directed the respondents to consider and decide the representation of the applicant by granting opportunity of personal hearing to the applicant (Annexure-A-10). The grievance of the applicant is that without addressing the contention of the applicant raised by the applicant in her representation vide order dated 29.8.2006 the respondents passed order of reversion in a most arbitrary manner. It is alleged by the applicant that at no point of time she misrepresented the department concealing any material fact. According to the applicant principle of natural justice and fair play has seriously been violated by the respondents.

3. Denying the pleas taken by the applicant the respondents filed a detailed reply and submitted that Shri K.K.Dewangan, one of the candidates who had appeared in the aforesaid departmental examination submitted a representation to the Chief Postmaster General, Raipur inviting his attention as to why three candidates have been declared successful against the two vacancies of Durg Postal Division. The representation of Shri K.K. Dewangan dated 25.1.2006 was duly considered and the result of the above said examination was reviewed by the competent authority i.e. Chief Postmaster General, Chhattisgarh Circle, Raipur. During the review it was discovered that the applicant was mistakenly declared successful in the said departmental examination despite having secured lesser marks than Shri K.K.Dewangan. Marks obtained by both, the applicant and Shri K.K.Dewangan are reproduced hereunder:- Sl.No. Name of candidate Paper I Paper II Paper III Total

1. Shri K.K.Dewangan 57 45 54 156 Roll No.CG/04/LSG/ Exam/30

2. Smt. Nilima Navin Dole 46 57 51 154 Roll No.CG/04/LSG/ Exam/37 Since the applicant secured lesser marks than Shri Dewangan the result of the aforesaid examination was revised/reviewed by rectifying the said mistake by deleting the name of the applicant from the list of successful candidates declared vide Circle Offices Memo. dated 16.12.2004. Consequently a show cause notice was issued to the applicant on 25.4.2006 to explain as to why her name should not be deleted from the list of successful candidates of the said LSG promotion Examination 2004. The applicant submitted her representation dated 25.6.2006. Competent authority after consideration of her representation dated 25.6.2006 and points raised during personal hearing on 25.8.2006, ordered for deletion of the name of the applicant from the list of successful candidates of the LSG examination 2004 on 29.8.2006 vide Memo. No. SSP/Con/FTP/LSG Examination/2004/29. The applicant also did not approach higher authorities against the order dated 29.8.2006 and approached this Tribunal directly. The applicant filed rejoinder to the counter reply filed by the respondents. A perusal of the rejoinder reply filed by the applicant clearly indicate that nothing new has been stated therein except that the respondents have utterly failed to show that on what authority they have reviewed the panel as the same has expired after one year. The review of select panel on the basis of the representation filed by Shri K.K.Dewangan was also misconceived because according to Shri K.K.Dewangan, out of three vacancies only 2 persons were selected and he prayed for induction of his name in the select panel and at no point of time Shri K.K.Dewangan prayed for review of the select panel in her representation. The suo moto power of reviewing the entire select panel without any authority or law is illegal.

4. We have heard Shri S. Ganguly, learned counsel for the applicant and Shri R.S. ;Siddiqui, Sr. Standing Counsel for the respondents. It has been contended on behalf of the applicant that the action of the respondents in deleting the name of the applicant has been taken without any inquiry in this regard. An opportunity was given by the competent authority to the applicant and the applicant was unilaterally reverted to the post of Postal Assistant. This action of the respondents is sequel of a pre-determined notice. It has also been contended by the applicant that the order (Annexure-A-1) is illegal, arbitrary and without jurisdiction and at no point of time reviewing authority, CPMG, Raipur has given an opportunity of hearing. According to the rules prevalent in the department, no application or representation should have been entertained after expiry of six months from the date of announcement of the result. In the facts and circumstances of the case the representation of Shri K.K.Dewangan should not have been considered. It is also urged on behalf of the applicant that if at all Shri Rajendra Kumar was given proforma promotion then against any one remaining vacancy the applicant can be very well adjusted. 5.. On the other hand the learned counsel for the respondents very hotly contended that erroneous benefit given to a person can always be withdrawn without any notice or opportunity and its benefit is not liable to be extended.. In support of this contention the learned counsel placed reliance on 2006(2)SCC 315 Md. Sartaz Vs State of U.P., AIR 1996 Supreme Court 2052 Laxmikant and others Vs Satyawan and others. The learned counsel for the respondents further argued that unless and until a person is finally selected, she has no right to seek direction for mandamus from this Tribunal. In support of this contention he has placed reliance on 2004 SCC (L&S) 316 Union of India and others Vs. Tarun K.Singh and others.It is clearly seen from the record that in the representation of Shri K.K.Dewangan, a candidate of departmental examination of Fast Track Promotion to LSG cadre for the year 2004 from Durg Division, it was clearly requested to the Chief Postmaster General, Raipur, as to why three candidates have been declared successful against 2 vacancies of Durg Postal Division. After going through the representation of Shri K.K.Dewangan, the result of the above-said examination was reviewed by Chief Postmaster General, Chhatisgarh Circle, Raipur to see the exact position. During the review, it was discovered that the applicant was mistakenly declared successful in the departmental examination despite having secured lesser marks than Shri K.K.Dewangan as indicated above. After noticing the aforesaid mistake the result of the said examination was reviewed by deleting the name of the applicant from the list of successful candidates vide Circle Offices memo. dated 16.12.2004.

6. In our considered view the mistake has rightly been rectified by the respondents by deleting the name of the applicant and in the facts and circumstances of the case no opportunity of hearing before deleting her name from the list was required to be given. The learned counsel for the respondents has placed reliance on the decision of Honble Apex Court, rendered in the following cases in order to buttress the contention that any individual candidate need not be given an opportunity of hearing before a decision is taken:- (1) 2007(3)Scale 674 Karnataka Power Corporation Limited Vs. A.T. Chandrashekhar (2) 2003(8)SCC 311 Ram Priti Yadav Vs. U.P. Board of High Schools and Intermediate Education (3) AIR 1970 SC 1289- The Bihar School Examination Board Vs. Subhash Chandra Sinha.

7. The aforesaid cases have been duly considered by us and we are fully in agreement with the decision of the Honble Supreme Court that ground taken by the applicant that the action of deletion of her name has been taken without holding any inquiry in this regard is devoid of merit and force. We have carefully seen the record and noticed that Shri K.K.Dewangan has secured 156 marks in comparison of the applicant who has secured 154 marks in three papers. In our considered view no illegality has been committed by the respondents in conducting the review of the selection. The plea advanced by the learned counsel for the applicant that no application shall be entertained after six months from the date of declaration of the result and the preservation period of answer books is only one year is without any foundation and these guidelines are not at all statutory in nature. In view of the Honble Apex Court decisions an erroneous benefit extended to a person can always be withdrawn.

8. Having given our anxious consideration to the pleas advanced by the parties counsel we are firmly of the view that as a measure of corrective action and under the departmental provision the name of the applicant has rightly been deleted from the list of successful candidates. We do not find any illegality or error of jurisdiction in passing of the order of reversion. No other ground has been raised by the applicant warranting our interference with the matter. The Original Application has no merit and the same is accordingly dismissed. No costs.. (A.K.Gaur ) (Dr. G.C. Srivastava) Judicial Member Vice-Chairman