Judgment:-

S.B. Sinha, J.

1. Leave granted.

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 where under the writ petition filed by the respondent herein was allowed.

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 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".

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 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 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 ld. Counsels for both sides, we find that the applicant having 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."

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:

"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 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 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 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 his appointment in the post of Peon or Group `D, thus, could be issued by the High Court.

(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 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.

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 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