ORDER
Mukesh Kumar Gupta, Member (J)
1. Jyothiraj Thirakappa Lalege, in an application filed under Section 19 of the Administrative Tribunals Act, 1985, has prayed for quashing the order dated 28.12.2001 (Annexure A-9) whereby pursuant to Rule 8(2) of Gramin Dak Sevaks (Conduct and Employment) Rule, 2001 (Rules’ for short) he has been terminated, as well seeking a direction to the respondents to continue him ED BPM of Kodachawad B.O. with all consequential benefits.
2. Admitted facts of the case are that vide circular dated 16.2.2000 (Annexure A-2), the Senior Superintendent of Post Offices, Belgaum, i.e., first respondent herein, invited applications from eligible and intending candidates belonging to OBC category for the post of ED BPM Kodachawad B.O. account with Parishwad S.O. Pursuant to the said advertisement, 18 applications including that of the applicant, were received. Based on the selection made, the applicant vide order dated 25.5.2000 (Annexure A-1) was “provisionally selected” for the said post. A show cause notice dated 4.10.2001 (Annexure A-3) was issued on the direction of the reviewing authority i.e., second respondent herein and it was stated therein that process of selection by which the applicant was appointed was erroneous for the reasons that (i) restriction of residence condition and (ii) income condition not properly notified. The applicant was accordingly directed to submit representation, if any, against the said show cause notice, proposing to terminate his service. Pursuant to the aforesaid notice, the applicant submitted detailed representation and contended that he owned lands and present post office premises was situated in the building wherein he was also residing. Earlier he had sold one acre of land for Rs. 40,000 and he had been deriving income out of the said property. Vide order dated 28.12.2001 (Annexure A-9) the first respondent by invoking the provisions of Rule 8(2) on the Rules terminated the applicant’s services forthwith and it was also stated that the applicant would be entitled to claim a sum equivalent to one month’s notice.
3. The applicant has contended that his service had been terminated on the direction issued by the reviewing authority and as such the show cause notice is nothing but an eye wash. The selection had been made in accordance with law and nobody had challenged the said selection till date and, therefore, there had been no cause of action in terminating his services. It has been further contended that it was not open to the appointing authority to cancel the appointment in such circumstances which is impermissible in law. The applicant also contended that he had been denied the opportunity to place the material before the authorities before passing the said termination dated 28.12.2001 and the reasons so assigned and stated in show cause notice dated 4.10.2001 were not the basis for which his service had been terminated.
4. The respondents have filed their reply and contested the claim laid by the applicant by contending that the applicant had secured lesser marks than the other candidates and during the course of inspection of the office of the first respondent, the second respondent had reviewed the cases including the applicant’s appointment in discharge of his official duties and during the said inspection it was found that the notification dated 16.2.2000 inviting applications for the post in question suffered from various irregularities and therefore, the first respondent was asked to take further action so that mistake committed by the department is not perpetuated. Among other things, it has been stated that the said notification dated 16.2.2000 contained the condition regarding permanent residence at the village before the selection which had been removed in the year 1993 and the other condition regarding income was not properly notified. It has been further urged that the vacancy will be renotified after conclusion of present proceedings and the applicant will have every opportunity to submit his application and participate in the selection process and their action in terminating applicant’s service is in order and deserves to be upheld.
5. The applicant has filed rejoinder and controverted the contentions raised by the respondents and reiterated the submissions made by him in the O.A.
6. Learned Counsel for the applicant has urged that the applicant’s selection vide order dated 25.5.2000 is on provisional basis. It is settled law that the reviewing authority cannot issue direction to the appointing authority to cancel and terminate appointment made after following due selection process. It is further contended that reasons which were made the basis of issuing show cause notice dated 4.10.2001 are not the basis for issuing the termination order. Termination order has been issued by invoking the provisions of Rule 8(2) of the rules. Rule 8 of the rules is reproduced hereunder:
“8. Termination of Employment :
(1) The employment of a Sevak who has not already rendered more than three years' continuous employment from the date of his appointment shall be liable to termination at any time by a notice in writing given either by the Sevak to the appointing authority or by the appointing authority to the Sevak; (2) The period of such notice shall be one month; Provided that the employment of any such Sevak may be terminated forthwith and on such termination, the Sevak shall be entitled to claim a sum equivalent to the amount of Basic Time-Related-Continuity-Allowance plus Dearness Allowance as admissible for the period of the notice at the same rates at which he was drawing them immediately before the termination of his employment, or, as the case may be, for the period by which such notice falls short of one month."
It is urged that the respondents cannot substitute the reasons for termination and are precluded to go beyond the order of termination in finding out what was the basis for the said order. As we have noticed earlier the termination order dated 28.12.2001 has been passed under Rule 8 of the Rules and contains no reasons. The reasons so advanced by the respondents in the counter affidavit are not the one on which show cause notice dated 4.10.2001 had been issued. It had not been the case of respondents in the said show cause notice that the applicant had been less meritorious, which is the basic plank in the reply affidavit. Learned Counsel for the Applicant has relied upon the order dated 12.12.2001 passed by this Tribunal in O.A. Nos. 626 and 632 and 633/00 dated 12.12.2001 wherein it has been held as under:
“12. The learned standing Counsel appearing for the official respondents raised some more grounds by relying upon the counter that the selection and appointment of the applicants was also illegal for other additional two reasons viz., (1) that the notification calling for applications vide Annexure-A1 prescribed the residence of the applicants in the jurisdic-tional village as compulsory and (2) the notification calling for applications, as a pre-condition did not determine the vacancy on the basis of the instructions issued by Government of India as to the reserved categories. He stated that the notification stating that the candidates belonging to SC/ST and other backward classes would have preferential right was not enough to comply with the general directions of the Government regarding reservation. But, in our considered view these two grounds are also untenable. These two grounds are not stated in the impugned orders. As per the law declared by the Hon’ble Supreme Court, the grounds cannot be supplied by affidavits in the Court unless they are stated in the impugned order itself. Even otherwise the alleged grounds are only after thought somehow to justify the illegal action. As stated in the impugned orders, absolutely there are no complaints from anybody regarding the selections made. If that is so, if at all, if any person is aggrieved it would be a person who was not the resident of the jurisdictional village or a person whose rights were affected by violating the reservation policy. In fact no such person has come forward to point out such alleged irregularity. At any rate, respondent No. 1 who is a competent statutory authority for making appointment does not state that he has committed any illegality by himself. Even assuming that he has committed any illegality or irregularity, he cannot take advantage of his own alleged fault, inasmuch as the applicants rights would prejudiced by the impugned orders. They were selected on the basis of merit, out of 14 candidates who filed applications and they were appointed in the year 1999 and they have been working for more than 2 years as permanent employees of the department and it would be unjust to set aside their appointments at this juncture of time. As stated in the impugned orders, absolutely there are no allegations against the selections made nor there is any allegation regarding unsatisfactory work of the applicants. If that is so, we have no option but to hold that the impugned orders are highly arbitrary and contrary to the rights guaranteed to the citizen under Articles 14 and 16 of the Constitution of India. Even under Article 21 of the Constitution, no person can be deprived of his livelihood unless it is in accordance with law. The impugned orders being unsustainable and illegal are also in violation of Article 21 of the Constitution of India. (Emphasis supplied)
The reasons mentioned in the aforesaid order are squarely applicable in the facts and circumstances of the present case as the first respondent who had been competent appointing authority for making appointment did not state that he had committed any illegality by himself. There is no allegation against the said selection and appointment made nor there is any allegation regarding unsatisfactory work of the applicant nor it is a case where any unsuccessful candidate had challenged the said selection process.
The next reliance placed by the learned Counsel is on order dated 21.9.2000 by the High Court of Karnataka in W.P. No. 13166/00 Tumminakatti No. 4 Weavers Cooperative Producers Society Limited v. Karnataka State Cooperative Handloom Weavers Federations Limited and Ors. to contend that the executive action must be in accordance with law. Further, reliance has been placed on the order passed by this Tribunal in O.A. No. 1025/01 decided on 17.4.2002 A. Raghu Kumar v. The Sub-Divisional Inspector (Postal) and Anr., wherein it has been held that the termination order issued as per the directions of the reviewing authority could not be said to be an order passed after due application of mind. In para 12 of the said order it was held that: Once a candidate fulfills all the requirements of law, then on his selection and appointment the candidate gets vested right and the same cannot be interfered with on the basis of an alleged irregularity on the part of the Department and such a person has a legitimate expectancy or right to life under Article 21 of the Constitution. In the aforementioned order, the Tribunal had noticed the order dated 12.12.2001 passed in O.A. Nos. 622, 632 and 633/00 which has already been noticed hereinbefore. The said order dated 17.4.2002 passed in A Raghu’s case (supra) had been affirmed by the High Court of Karnataka in W.P. No. 27114/02 decided on 5.8.2002. Further reliance has been placed on AIR 1977 SC 1677= 1977 SLJ 532 (SC)Supdt. of Post Offices v. P.K. Rajamma etc. to contend that ED Agents connected with the Postal Department hold civil posts under Article 311(2) of the Constitution of India and the removal from service without complying with provisions of Article 311(2) of the Constitution is illegal. Reliance has also been placed on ILR 1998 Kar. 3885 (Division Bench Suresh Babu v. Smt. S. Susheela Thimmegowda to contend that once the process has reached finality and is concluded, the proceedings cannot be reopened. Learned Counsel also relied upon AIR 1989 SC 1899, Asif Ahmed v. State of Jammu and Kashmir, particularly Para 19 of the said judgment, wherein it has been held that when a State action is challenged the function of the Court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the Court must strike down the action.
Further reliance has been placed on an order passed by this Bench in O.A. No. 935/ 99 decided on 30.8.2001 Shri Murtuza Saab R. Nandwadagi v. Supdt. of Post Offices wherein almost an identical grounds, on a review conducted by the PMG, a direction was issued to the appointing authority to cancel the appointment order to the selected candidate. The said termination order was not sustained after noticing the Full Bench judgment in the case of Ambujakshi v. Union of India and Ors., O.A. No. 57/91 wherein it had been held that under the relevant rules, the higher administrative authority has no power to revise the order of appointment made by the lower authority and as such the order passed by the higher authority would be invalid.
7. On the other hand learned Counsel for the respondents has vehemently contended that the applicant has no legal and vested right to continue in the post in question. The applicant was terminated after issuing show cause notice and there is no violation of principle of natural justice. It is further urged that the power of appointment is an administrative power and is distinguishable from quasi judicial function. Learned Counsel has strenuously urged that if the same authority who appointed a candidate including superior authority as well as reviewing authority cannot rectify the mistake then in that eventuality the only course left open to the department is to perpetuate the mistake. It is not a case of the applicant that he was selected on merits in accordance with rules, no doubt he was selected to the post in question, has been the contention raised by the learned Counsel for the respondents. Learned Counsel also relied upon 2000 SCC (L&S) 1118=2002(3) SLJ 141 (SC),Brij Mohan Singh v. Union of India. We have perused the said judgment carefully and found it is distinguishable on the facts and circumstances and as such has no application to the present case.
8. It is settled law, as noticed from various orders and judgments passed by this Tribunal as well as the High Court of Karnataka that the higher administrative authority has no power to review the appointment order made by the lower authority and cancellation of appointment in such a situation is violative of principles of legitimate expectation and the Department cannot be allowed to take advantage of their own wrong and fault. There is no complaint against the applicant’s conduct and work from any quarter. Moreover the reasons which were so stated and incorporated in specific in the show cause notice dated 4.10.2001, which were duly replied by the department, had not bee’n the basis for terminating the applicant’s services. The order of termination dated 28.12.2001 is a simpliciter on the face of it but in fact is based upon the direction issued by the second respondent. In Mohinder Singh Gill, AIR 1978 SC 851 it has been held that when a statutory functionary makes an order based on certain grounds its validity must be judged by the reasons so mentioned and incorporated therein and it cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Even if we accept the respondents contention that the applicant’s services were terminated for the reasons so assigned in the show cause notice dated 4.10.2001 even then it is clear from the reply submitted by the respondents in the present case that the applicant’s alleged less meritorious was not the basis for issuing the said show cause notice. If that is so, nothing prevented the respondents to incorporate the said alleged reasons in the show cause notice dated 4.10.2001. It is not the case of the respondents, that the applicant was not eligible for the post in question and he did not fulfill the requirements of rules and instructions for selection to the said post. This being so, once he is selected and appointed to the post in question, he acquires a vested right and the same cannot be interfered with on the basis of alleged irregularities committed on the part of the department and the applicant has a legitimate expectation and right to continue in the said post.
9. Similarly in 1990 (12) ATC 312,P. Joseph v. Add. PMG Tamil Nadu Circle, after noticing the judgments reported in 1987(4) ATC 147=1989(4) SLJ 65 (CAT–Madras) and O.A. No. 306/88, it was held:
“Having joined as Postman on the basis of a departmental examination, the applicant had acquired a right. A right once endowed in a particular person cannot be divested from him merely because a mistake had been committed by the departmental authority.” (Emphasis supplied)
10. In view of the findings recorded hereinabove we quash and set aside the order dated 28.12.2001 (Annexure A-9) passed by the first respondent with all its consequential benefits. Accordingly the O.A. is allowed. The applicant shall be reinstated in the post of EDBPM Kodachawad B.O. account with Parishwad S.O. with all consequential benefits. However, in the facts and circumstances of the present case he will not be entitled to backwages. These directions shall be complied within a period of two months from the date of receipt of a copy of this order. No costs.