Commissioner of Income Tax - II vs. Goodwin Finance Holding Pvt. Ltd.,

W.P.(C) No.229 of 2013 Page 1 of 13

IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) No.229 of 2013

-Versus-

…Opposite Parties Advocates appeared in the case: For the Petitioner

: Mr. Biswabihari Mohanty,

Advocate

For Opposite Parties No.1 to 4 : Mr. Debasis Tripathy, CGC

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For Opposite Party No.5 : Mr. S. Patra, Advocate

CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO

JUDGMENT 28.10.2024

Chakradhari Sharan Singh, CJ. 1. The petitioner in the present writ application under Article 226 of the Constitution of India has put to challenge an order dated 10.08.2012 passed by a Division Bench of the Central Administrative Tribunal, Cuttack Bench, Cuttack (‘the Tribunal’ for short) in O.A. No.654 of 2011. Consequently, the petitioner is seeking direction to the opposite parties to appoint him as Lift Operator in the Income Tax and Central Excise Revenue Building, Bhubaneswar. 2. We have heard Mr. Biswabihari Mohanty, learned counsel appearing on behalf of the petitioner, Mr. Debasis Tripathy, learned Central Government Counsel appearing for opposite parties No.1 to 4 and Mr. S. Patra, learned counsel appearing on behalf of opposite party No.5. 3. It is the petitioner’s case that he was engaged by the Executive Engineer, Electrical, Central Public Works Departments (CPWD), Bhubaneswar since 01.06.1990 on casual basis. He continued since

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then up to 31.12.1999 in different spells for period of six months to one year in a particular year. It is his further case that at the relevant point of time, the engagements to the said post were made in similar fashion, whereas persons similarly placed were conferred temporary status, the petitioner was denied the said treatment, notwithstanding his continuance since 01.06.1990, which compelled him to approach the Tribunal by filing an original application registered as O.A. No.793 of 2005. The Tribunal disposed of the said application by an order dated 28.06.2007 with a direction to the opposite parties to examine the petitioner’s case for conferment of benefits as extended to other similarly situated persons. Pursuant to the order of the Tribunal dated 28.06.2007, the petitioner was conferred with the temporary status as Lift Khalasi. It is the petitioner’s case that he ought to have been conferred the benefit of temporary status as Lift Operator. 4. Be that as it may, the petitioner continued as Lift Khalasi with temporary status by virtue of an order dated 12.02.2008. 5. Thereafter, an advertisement was issued on 29.03.2011 inviting applications for filling up one post of Lift Operator in CPWD Bhubaneswar. Persons having experience as Lift Operators could apply against the said advertisement. The petitioner had applied and he was allowed to appear at a Trade Test after undergoing necessary Theoretical Tests, along with other participants. There were altogether 9 candidates, out of whom, the petitioner and opposite party No.5 secured full marks in both the tests.

W.P.(C) No.229 of 2013 Page 4 of 13 6. It is the further case of the petitioner that he and opposite party No.5 are equal in terms of eligibility qualification. The petitioner, it is contended, was appointed as Lift Operator on casual basis at an earlier point of time than opposite party No.5. Opposite party No.5 has been selected and appointed as Lift Operator, ignoring the petitioner’s case and seniority. It was in the aforesaid background that the petitioner approached the Tribunal by filing original application before the Tribunal giving rise to O.A. No.654 of 2011, assailing the said selection made pursuant to the advertisement dated 29.03.2011. 7. The Department (opposite parties No.1 to 4) filed a counter affidavit before the Tribunal asserting that since opposite party No.5 had more experience as a Lift Operator than the applicant/petitioner, who was working as Lift Khalasi with temporary status with effect from 19.02.2008, opposite party No.5 was considered suitable for the post. 8. Opposite Party No.5 in his counter affidavit filed before the Tribunal asserted that whereas he was working as Lift Operator on daily wage basis, the petitioner was working as Lift Khalasi on casual basis, which is a Group-D post. Whereas the post of Lift Operator is a Group-C post, post of Lift Khalasi is a Group-D post and since the petitioner was engaged as Lift Khalasi, his experience could not be counted as Lift Operator. 9. The Division Bench of the Tribunal while rejecting the petitioner’s application by the impugned order noted at the very outset

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that the petitioner could not produce any unimpeachable document to show that he was engaged as Lift Operator with effect from 01.06.1990 through a due process of selection. The Tribunal also noted the fact that it was in compliance of one of the Tribunal’s order passed in O.A. No.793 of 2005 that the petitioner was conferred with temporary status against the post of Lift Khalasi, which post he joined with effect from 19.02.2008. 10. There is one crucial aspect which should not escape our attention. The service of opposite party No.5 was terminated and based on a decision of the Industrial Tribunal in an Industrial Dispute Case No.361 of 2001, he had been taken back in service with status that he was enjoying prior to his termination on 01.09.1999. 11. The Tribunal rejected the petitioner’s contention that the post should not have been advertised, rather his service should have been regularized against the post, which was advertised. From the point of preference given to opposite party No.5 in the matter of selection for appointment to the post of Lift Operator, the learned Tribunal noted that the long standing experience gained by him weighed with the opposite parties-Department. Comparing the case of the petitioner with that of opposite party No.5, the Tribunal came to a conclusion that since opposite part No.5 was engaged for a significant period of time as Lift Operator whereas the petitioner was engaged as Lift Khalasi with a temporary status, the selection of opposite party No.5 as Lift Operator deserved to be upheld.

W.P.(C) No.229 of 2013 Page 6 of 13 12. Assailing the impugned order passed by the Tribunal, Mr. Mohanty, learned counsel appearing on behalf of the petitioner, has submitted that though the advertisement did not specifically mention the educational qualification but the post in question being a Group-C post under the Central Government, a candidate was required to possess minimum qualification of Class-VII pass which is required for even a Group-D employee. He has further submitted that the petitioner’s challenge to the process of selection by way of advertisement has wrongly been turned down by the Tribunal applying the principle of estoppel on the reasoning that the petitioner had participated in the process of selection. Relying on the Supreme Court’s decisions in case of Salam Samarjeet Singh v. High Court of Manipur reported in 2024 SCC OnLine SC 2316 (Paragraph-32) and Dr. (Major) Meeta Sahai v. State of Bihar and others reported in (2019) 20 SCC 17 (Paragraphs-16 and 17), he has submitted that the Tribunal wrongly applied the principle of estoppel. He has further argued that though opposite party No.5 claimed to have passed Class-X in his candidature, he had not produced any document in support of his qualification. On this ground also, opposite party No.5 was unfit for selection. He has placed reliance on the Supreme Court’s decision in case of the State of Bihar and others v. Madhu Kant Ranjan and others reported in (2021) 17 SCC 141 (Paragraph-11). 13. Mr. Debasis Tripathy, learned Central Government Counsel appearing on behalf of the Union of India has submitted that the petitioner after having participated in the selection process pursuant to the advertisement cannot challenge the advertisement on the ground

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that the post ought to have been filled up by regularizing his services. He has also submitted that the petitioner had earlier filed O.A. No.557 of 1999 before the Tribunal for regularization of his service as Lift Operator, which was dismissed by an order dated 10.02.2001. The said fact was suppressed by the petitioner in his subsequent original application before the Tribunal. It has further been argued that it was the specific stand of the Department before the Tribunal that the petitioner never worked as a Lift Operator rather he was operating the lift casually as a casual post holder and subsequently under the order dated 28.06.2007 of the Tribunal in O.A. No.793 of 2005, the petitioner was given the temporary status of Lift Khalasi from 2008. Reliance has been placed on a Supreme Court’s decision in the case of Anupal Singh and others v. State of Uttar Pradesh reported in (2020) 2 SCC 173 to bolster the contention that a candidate after having participated in the selection process cannot challenge the advertisement. In support of the submission that if a party approaches the Court suppressing material facts, a writ application should not be entertained, he has relied on Supreme Court’s decision in case of Dalip Singh v. State of Uttar Pradesh reported in (2010) 2 SCC 114.

It has also been stated that opposite party No.5 was engaged on contract basis w.e.f. 01.08.1990 till 31.08.1999 to operate the lift. After termination of his service, he had approached the Industrial Tribunal and vide order dated 07.12.2007, he was reinstated against the post of Lift Operator. He joined on 17.04.2008

W.P.(C) No.229 of 2013 Page 8 of 13 14. Mr. S. Patra, learned counsel appearing on behalf of opposite party No.5 has, while adopting the submissions advanced on behalf of the Department (opposite parties No.1 to 4) submitted that the petitioner was allowed to operate lift from 01.06.1990 to 31.12.1991, but he was never holding the post of Lift Operator. Opposite party No.5 was engaged to operate lift on contractual basis on 01.08.1990. In the year 1999, the operation of the lift was given to a contractor leading to termination of service of opposite party No.5 with effect from 01.09.1999. The petitioner was engaged by the contractor as a labour in December, 1999. He had filed an application before the Tribunal i.e. O.A. No.557 of 1999 for regularization, which was dismissed. 15. On the other hand, the dispute arising out of termination of opposite party No.5 was referred to the Central Government Industrial Tribunal. The Industrial Tribunal passed an award directing reinstatement of opposite party No.5 against the post of Lift Operator in available vacancy along with back wages, holding the termination as illegal. It is in that background, he contends that whereas the petitioner was given temporary status in 2008, opposite party No.5, whose termination was found to be illegal against the post of Lift Operator, was reinstated as Lift Operator with full back wages under an award passed by the Industrial Tribunal. He has accordingly submitted that the petitioner was working as Lift Khalasi as on 22.02.2008 and opposite party No.5 was working as Lift Operator and his termination was found to be illegal by the Industrial Tribunal in an industrial dispute and accordingly he was reinstated as a Lift Operator with full back wages. In such circumstance, opposite party No.5 was rightly

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given preference in the matter of selection. He has also argued that the petitioner has suppressed the fact about dismissal of his O.A. No.557 of 1999 by the Tribunal by an order dated 10.02.2001. For suppression of this material fact also, the writ application deserves to be dismissed. 16. After having carefully gone through the materials on record and submissions advanced on behalf of the parties, the factual positions which emerge are as under:- I. There was one lift in the Central Excise Revenue Building, Bhubaneswar; II. The petitioner was allowed to operate the lift for certain period. Opposite party No.5 was also engaged to operate the lift on contractual basis. The operation of the lift was given to a contractor in 1999, which resulted in termination of service of opposite party No.5; III. The petitioner filed an application for regularization before the Tribunal giving rise to O.A. No.557 of 1999, which was dismissed by an order dated 10.02.2001. The petitioner accepted the said order and did not challenge the same. He was engaged by the contractor; IV. Opposite party No.5, on the other hand, raised an industrial dispute leading to registration of I.D. Case No.361 of 2001 against his termination. The Industrial Tribunal passed an award on 07.12.2007 holding the termination of opposite party No.5 from service as illegal and directed for his reinstatement as Lift Operator in the available

W.P.(C) No.229 of 2013 Page 10 of 13 vacancy along with back wages. The opposite party No.5 was accordingly reinstated; V. In the meanwhile, the petitioner filed another original application before the Tribunal giving rise to O.A. No.793 of 2005, which was disposed of with a direction to examine his case for grant of temporary status. The petitioner was granted temporary status in the grade of Lift Khalasi, which is a Group-D post. The petitioner accepted the same and continued accordingly, without any objection. 17. It is apparent thus that whereas opposite party No.5 is to be treated to have continued as Lift Operator from a date prior to his termination in 1999 as a Lift Operator till he was finally engaged through the impugned selection process, the petitioner continued as Lift Khalasi with temporary status. 18. It is not in dispute that the post of Lift Operator is a Group-C post against which opposite party No.5 was working whereas the post of Lift Khalasi is a Group-D post against which the petitioner claimed to be working. 19. In such circumstance, we do not find the decision of the competent authority in giving preference to opposite party No.5 in the matter of appointment as Lift Operator pursuant to the said advertisement, based on his past experience as Lift Operator, to be unreasonable and arbitrary.

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W.P.(C) No.229 of 2013 Page 12 of 13 the prescribed procedure and not any illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate had participated in it.

The petitioner in the present case has not alleged misconstruction of any statutory rule having discriminatory consequences, so as to apply the law enunciated in case of Dr. (Major) Meeta Sahai (supra). For the same reason, the decision in case of Salam Samarjeet Singh (supra) has no application, paragraph-32 of which reads as under:- “32. Before we conclude, we may also advert to the contention that after participating in the recruitment process, the unsuccessful candidates cannot turn around and challenge the recruitment process. We are of the view that it is equally well-settled that the principle of estoppel cannot override the law. Such legal principle was reiterated by the Supreme Court in Dr. (Major) Meeta Sahai v. Union of India (2019) 20 SCC 17 where it was observed as under: “17. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.”

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(Chakradhari Sharan Singh) Chief Justice

Savitri Ratho, J. I agree.

(Savitri Ratho)

Judge

M. Panda Digitally Signed Signed by: MRUTYUNJAYA PANDA Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Nov-2024 20:37:24 Signature Not Verified