Patna High Court - Orders
Payel Adhikary vs The Principal Accountant General (A And ... on 5 November, 2019
Author: Ashutosh Kumar
Bench: Chief Justice, Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.19874 of 2019
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Payel Adhikary, Daughter of Late Sukhdev Adhikary, residing in the house of
Sri Ramendra Kumar Singh, East Side of Gokul Path, Opp-Gyan Ganga
Bhawan, Patel Nagar, P.S.-Post-Shastri Nagar, District-Patna, Permanent R/o
108/A, Patua Para Lane, Serampore, P.S.-Hoogly, West Bengal.
... ... Petitioner/s
Versus
1. The Union of India through the Comptroller and auditor General of India,
New Delhi
2. The Chief Accountant General, Govt. of India, New Delhi.
3. The Principal Accountant General, (A and E) Govt. of India, Near R Block,
Bihar, Patna.
4. The Sr. Deputy Accountant General, (A and E) Govt. of India, Near R Block,
Patna.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 21097 of 2019
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Payel Adhikary, Daughter of Late Sukhdev Adhikary, Residing in the house of
Sri Ramendra Kumar Singh, East Side of Gokul Path, Opp- Gyan Ganga
Bhawan, Patel Nagar, P.S. and Post- Shastri Nagar, District- Patna, permanent
R/o 108/A, Patua Para Lane, Serampore, P.S.- Hoogly, Hoogly, West Bengal.
... ... Petitioner/s
Versus
1. The Principal Accountant General (A and E) Govt. of India, Near Block,
Bihar, Patna.
2. Kishan Raj Son of Sri Raj Kishore Yadav Permanent resident of Mohalla-
Purandarpur, Annie Besant Road, P.S.- Pirbahore, District- Patna.
... ... Respondent/s
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Appearance :
(In Civil Writ Jurisdiction Case No. 19874 of 2019)
Patna High Court CWJC No.19874 of 2019(7) dt.05-11-2019
2/8
For the Petitioner/s : Mr. Sanjay Singh, Advocate
Mr. Sanjiv Sharan, Adv.
For the Respondent/s : Mr. S. D. Sanjay ( ADSG )
For the Accountant General : Mr. Amar Nath Singh, Advocate
(In Civil Writ Jurisdiction Case No. 21097 of 2019)
For the Petitioner/s : Mr. Sanjiv Sharan, Adv.
For the Respondent/s : Mr. S. D. Sanjay ( ADSG )
For the Accountant General : Mr. Amar Nath Singh, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
7 05-11-2019Both the writ petitions have been taken up together for hearing.
Heard Mr. Sanjay Singh, learned advocate for the petitioner in both the cases, and Mr. Amar Nath Singh, learned advocate for the Accountant General.
The orders under challenge are dated 26th of February, 2019 and 23rd December, 2014 respectively, passed by the Tribunal holding that the appointment of the writ petitioner is bad in as much as the appointment has been given on the basis of her having obtained highest marks in the category of Table Tennis sports, which she ought not to have been awarded.
A preliminary objection was raised by Mr. Amar Nath Singh, learned advocate for the Accountant General, that the 2nd writ petition, i.e. C.W.J.C. No.21097 of 2019 has been filed after five years of the declaration of the petitioner to be Patna High Court CWJC No.19874 of 2019(7) dt.05-11-2019 3/8 ineligible for being considered for appointment.
This preliminary objection has been overruled by us on the ground that the Tribunal has entertained the O.A. No.050/00781/2015 preferred by the petitioner much later than the impugned order in O.A. No.8/2013 which was passed on 23/12/2014. The O.A. preferred by the petitioner and the order passed passed thereupon is only a continuation of the earlier order passed by the Tribunal in O.A. No.8 of 2013 referred to above.
With such objection having been overruled, we have proceeded to hear Mr. Sanjay Singh, learned advocate for the writ petitioner in both the cases.
The main ground urged on behalf of the petitioner is that she had applied for being appointed on the post of Auditor/Accountant (Group-C) against the sports quota in terms of the advertisement which was issued on 26.11.2011. The writ petitioner was found to be eligible as being the candidate having obtained highest marks in the category of sports in which she had applied and she was given provisional appointment on 23.3.2012. In terms of the appointment letter, within one year, the mandatory requirement of passing the departmental examination for Patna High Court CWJC No.19874 of 2019(7) dt.05-11-2019 4/8 confirmation was cleared by her on 26.4.2013. After about two years i.e. on 28.4.2015, the petitioner stood promoted and appointed to a higher post of Sr. Accountant with effect from 1.4.2015. It has been urged on behalf of the writ petitioner that sometimes in the year 2012, private respondent, namely Kishan Raj, challenged her appointment by preferring O.A. No.8 of 2013. The challenge was primarily on the grounds that the writ petitioner had not appended the sports certificate on which she had to be marked in the format as delineated in the advertisement of 2011 and, secondly, that she was marked wrongly for her so called participation in an event of national importance when such an event was not found to be an event of national importance as it was not hosted by either by the National Federation of Sports or Indian Olympic Association.
The Tribunal, on hearing the parties, by order dated 23.12.2014 held that the selection and appointment of the petitioner was not in accordance with the rules/instructions and the conditions notified in the advertisement and, therefore, found that the petitioner was ineligible for being considered for appointment and left the issue open to the authorities concerned to consider the case of Kishan Raj (respondent No.2 in C.W.J.C. No.21097 of 2019) Patna High Court CWJC No.19874 of 2019(7) dt.05-11-2019 5/8 for appointment.
The aforesaid order was challenged by the petitioner only in the year 2019.
The petitioner also has challenged the termination of her service vide O.A. No.050/00781/2015 where the same issues were deliberated upon by the Tribunal and the appointment of the petitioner was found to be void ab initio and it was further held that the petitioner did not possess the right to continue in Government service.
Mr. Singh, learned advocate for the Accountant General, has drawn the attention of this Court to the fact that after the judgement of the Tribunal on 23.12.2014 in the case of Kishan Raj (O.A. No.8 of 2013), a show cause notice was issued to the petitioner on 23.7.2015 to which the petitioner had replied and had asked for certain documents. A 2 nd show cause notice also was served upon her to which also the petitioner responded. Thereafter, on the response of the 3 rd show cause notice, the petitioner was slapped with the termination order dated 14.8.2015. According to the learned Advocate for the Accountant General, it was found by the Tribunal that the petitioner did not have the eligibility for being considered for appointment on the said post against Patna High Court CWJC No.19874 of 2019(7) dt.05-11-2019 6/8 sports quota because she did not have the requisite certificate of participation in any national event for which she had been marked wrongly.
As opposed to the aforesaid contentions raised on behalf of the Accountant General, Mr. Sanjay Singh, learned advocate for the petitioner has submitted that while the Tribunal was deciding about the eligibility of the petitioner, it was also incumbent upon it to have looked into whether the respondent (Kishan Raj) also had the requisite eligibility before considering his objections to the appointment of the petitioner. Mr. Singh, learned advocate, submits that the private respondent did not have any such eligibility as the certificates appended by him along with the application form was not in the prescribed format B appended with the advertisement. Apart from this, it has further been submitted that once the departmental examination for confirmation was cleared by the petitioner and she stood promoted after two years of such clearance of the departmental examination, it was not open for the authorities to have declared her appointment to be void ab initio on the ground that she was marked more than what she deserved on her participation in a national event.
Patna High Court CWJC No.19874 of 2019(7) dt.05-11-2019 7/8 With respect to her participation in the national event, it has been urged that the same was claimed by her on the strength of her participation and having been ranked first in an event organized by Government of India, Ministry of Youth & Sports Affairs. In that case, a clarificatory note, which was neither quoted nor brought on record by the private respondent, could not have been relied upon by the Tribunal for holding that an event organized by the Government of India, Ministry of Youth & Sports Affairs was not an event of national importance, as the event was neither hosted by the Indian Olympic Association nor by National Federation of Sports for it to qualify as an event of national importance.
The filtrate of the arguments advanced on behalf of the writ petitioner in both the petitions is that after clearance of the departmental examination and promotion to the higher post, the issue of the eligibility of the petitioner could not have been re-opened after so many years of her rendering service in the department. The other ground which has been argued as an alternative plea is that if the private respondent (Kishan Raj) also did not have the requisite qualification, his complaint/objection ought not to have been Patna High Court CWJC No.19874 of 2019(7) dt.05-11-2019 8/8 entertained and that the Tribunal fell in error in holding the petitioner ineligible for such appointment and directing the authorities to consider the case of the private respondent.
It would be necessary to hear the stand of the private respondent (Kishan Raj).
Let notices be issued upon respondent/ Kishan Raj on requisites etc. being filed by the petitioner for issuance of such notice in both the cases by both modes i.e. under registered cover with A/D and by ordinary process, within two weeks, returnable on 9.12.2019.
(Amreshwar Pratap Sahi, CJ) (Ashutosh Kumar, J) AFR K.C.Jha/-
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