CWP No.5284-CAT of 2004 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CASE NO.: CWP No.5284-CAT of 2004
DATE OF DECISION: February 24, 2009
UNION OF INDIA AND OTHERS ...PETITIONERS
VERSUS
PREM SINGH ...RESPONDENTS
CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA.
HON'BLE MS. JUSTICE NIRMALJIT KAUR.
PRESENT: MR. NAMIT KUMAR, ADVOCATE FOR THE PETITIONERS.
MR. S.K. SUD, ADVOCATE FOR THE RESPONDENT.
ASHUTOSH MOHUNTA, J.
This petition has been filed under Article 226/227 of the
Constitution of India, by Union of India, for quashing order dated
27.02.2004 (Annexure P-11) passed by the Central Administrative Tribunal,
Chandigarh Bench, Chandigarh (for short `the Tribunal’), whereby the
Original Application filed by the respondent No.1 – Prem Singh has been
allowed and the appointment of respondent No.2 – Ram Niwas to the post of
Extra Departmental Branch Postmaster (herein after called ‘EDBPM’),
Gurana has been quashed and a direction has been issued for appointment of
respondent No.1 to the said post. The Tribunal has further directed that the
department shall consider the possibility of accommodating respondent
No.2 on any other alternative post.
Brief facts of the case are that the Superintendent of Post Offices,
Hissar Division had invited all candidates, including respondents No.1 and
CWP No.5284-CAT of 2004 -2-
2, whose names had been forwarded by Employment Exchange, to submit
their applications with requisite documents on or before August 20, 1998
for appointment to the post of ‘EDBPM’. Though respondent No.1 was
placed at Serial No.1 in the Merit list on account of having secured 57.3%
marks as against respondent no 2 who was placed at No.2 having secured
51.6% marks in Matric, however, the Sub Divisional Inspector (Postal) who
was asked to scrutinize the applications submitted a report to the effect that
the respondent No.1 does not fulfill the qualification relating to income and
ownership of property as envisaged in the instructions dated 06.12.1993.
Consequently the appointment of respondent No.2 was approved on
27.08.1998, by the Superintendent of Post Offices and the charge of post
was handed over to him on 02.09.1998. The representation of respondent
No.1 against his non selection was decided vide order dated 12.06.2001
(Annexure A-1), the operative portion of which reads as under:-
“…..You also stood at Sr. No. 1 according to the marks
obtained in Matric. But you have no immoveable property/
agriculture land in your name which according to the rules of
the Department is essential. At no 2 of the merit list is the name
of Sh Ram Niwas s/o Sh. Prithi Singh who fulfilled all the
conditions according to the rules of the department and as
such he was selected for the post”
Feeling aggrieved, respondent No.1, filed an Original Application,
under Section 19 of the Administrative Tribunals Act, 1985, before the
Tribunal, being OA. No 185-HR of 2002, inter alia, praying for quashing of
order dated 12.6.2001 (Annexure A-1), as well as the appointment of
CWP No.5284-CAT of 2004 -3-
respondent No 2, along with a prayer to appoint respondent No.1 to the said
post. The stand of the petitioner-Union of India before the Tribunal was
that respondent No.1, though higher in merit, yet he did not possess the
essential and mandatory qualification of Income and ownership of property
as he was stated to be working occasionally in the Village as Mason,
whereas on the other hand respondent No.2 was stated to be running a
Karyana Shop in the Village. The said original application was allowed by
the Tribunal, in the first instance, vide order dated 14.11.2002, by holding
that since the respondent No.1 was having higher marks than respondent
No.2, the appointment of respondent No.2 was bad in law. The Tribunal
quashed the appointment of respondent No.2 and directed that if the
respondent No.1 fulfills all the other requisite eligibility criterion, he shall
be given appointment in preference to the respondent No 2. It was also
directed that since respondent No.2 has served the department for about 4
years by that time, the Department shall consider the feasibility of
accommodating him on any other alternative post.
The aforesaid order dated 14.11.2002 passed by the Tribunal
was challenged by Union of India by filing CWP No.198-CAT-2003, titled
Union of India and others versus Prem Singh and others, which was
allowed by a Division Bench of this court vide order dated 24.07.2003,
relying on an earlier decision of this Court in the case CWP No.15356 of
1996, titled as Union of India versus Prem Chand and another. The
operative part of the judgment/order dated 24.07.2003, is reproduced
hereunder for facility of reference:
“We have heard learned counsel for the parties and perused
the record. In our opinion, the impugned order is liable to be
CWP No.5284-CAT of 2004 -4-
set aside because while allowing the original application filed
by the respondent no 1, the Tribunal ignored an important fact
he did not fulfill the eligibility criteria laid down for
appointment to the post of EDBPM. In CWP No 15356 of 1996
Union of India vs. Prem Chand and another decided on
23.03.1998, this Court considered the question whether the
qualifications prescribed for appointment of Extra
Departmental Agents, the qualification of property is
mandatory and observed as under:-
“A careful reading of the qualifications and the contents of the
letter issued by the Government of India shows that the
property qualifications prescribed for recruitment of EDBPM
is an essential and mandatory qualification. The tenor of the
language used in the rules does not indicate that the rule
making authority had intended this qualification to directory
or only a preferential qualification. The letter dated 6.12.1993
issued by the Government of India also does not give any such
indication. Therefore it must be held that the Tribunal has
erred in holding that the provision regarding “adequate means
of livelihood” is not an essential pre- requisite but is only a
preferential qualification. Any other interpretation of the letter
issued by the Government of India would be contrary to the
rules regulating recruitment to the service.”
It is regrettable that the Tribunal has ignored the law laid
down by this Court and quashed the appointment of respondent
No 2.
CWP No.5284-CAT of 2004 -5-
At this stage, Shri S.K. Sud counsel for respondent No.1
submitted that even if this court is inclined to quash the
impugned order his client may be given an opportunity to show
that he satisfies other conditions of eligibility and was entitled
to be selected for appointment as EDBPM. The prayer of Shri
Sud appears reasonable and merits acceptance.
Hence, the writ petition is allowed. The impugned order passed
by the Tribunal is quashed and the case is remanded for fresh
decision of the original application filed by respondent No.1.
The parties are directed to appear before the Tribunal on
1.09.2003″
In pursuance to the aforesaid order dated 24.07.2003, passed by
this Court, the Tribunal re-examined the matter but without any change in
the result and the Original Application filed by the respondent No.1 has
again been allowed by the Tribunal vide order dated 27.02.2004. The
relevant extract of the order of the Tribunal, also containing the reasons
advanced by the Tribunal in support of its order, is reproduced here under
for ready reference:-
“We have considered the rival contentions. Admittedly
applicant is more meritorious on the basis of the marks
obtained by him in the matriculation examination. Although
in the order dated 24.07.2003, the Hon’ble High Court
observed that the qualification of property is mandatory for
eligibility for appointment to the post of EDBPM, yet it is found
that the Hon’ble High Court has not considered the CAT Full
CWP No.5284-CAT of 2004 -6-Bench Bangalore decision dated 02.12.2002 in the case of
“H.Lakshmana” (supra) in which the Full Bench after
considering the various decisions rendered by different courts,
had held that the condition pertaining to adequate means of
livelihood in department’s circular of 06.12.93 was invalid. It
is further observed that possession of adequate means of
livelihood is neither an absolute condition nor a preferential
condition required to be considered for the above said post. In
these circumstances, we are bound by the Full Bench decision
of the Tribunal. Realising the futility of income and property
qualification, the Deptt. Of Posts vide circular dated
17.09.2003 deleted the condition of income preferably from
landed property/ immoveable property for recruitment to the
post of Gram Dak Sevaks.
As such, the candidature of the applicant has to be considered
on the basis of the basis of the marks obtained by him in
matriculation examination. Respondents have admitted that
applicant had obtained the higher marks among the candidates
considered. His candidature has been rejected only on the
ground of income and property. No infirmity has been pointed
out by the respondents in regard to other requisite
qualification for the post of EDBPM.
Having regard to the facts, circumstances and law as discussed
above, this O.A. must succeed. Accordingly, Annexure A-1
dated 14.6.2001 is quashed and set a side. The respondents are
directed to offer to the applicant the appointment to the post of
CWP No.5284-CAT of 2004 -7-
EDBPM, village Gurana BO immediately. It is further directed
that since respondent no 5 has served the respondent
department for the last over 4 years, the respondent
department shall consider the possibility of accommodating
him on any alternative post. These order must be complied by
the respondents within a period of one month from today. No
costs.”
Against the said order dated 27.02.2004, passed by the
Tribunal, petitioner-Union of India has again approached this Court by way
of the present writ petition. A bare perusal of the case file shows that while
issuing notice of motion, notice regarding stay was also issued vide order
dated 20.03.2004. However thereafter no order either granting or declining
the stay was passed, infact the issue of stay was never raised before the
Court. However respondent No.1 moved C.M. Application No.16856 of
2007 praying for early hearing of the case, in which it has been averred that
respondent No.1 is out of service. This shows that the petitioner-Union of
India has not yet implemented the order of the Tribunal dated 27.02.2004
and has not appointed respondent No.1 to the post of ‘EDBPM’, on account
of pendency of the present writ petition.
Learned counsel for the Petitioner-Union of India has
vehemently argued that the Tribunal fell in grave error in not appreciating
the fact that the qualification/condition regarding property prescribed vide
instructions dated 06.12.1993 (Annexure R-2), for recruitment to the post of
‘EDBPM’ is essential and mandatory qualification. Since respondent No.1
did not fulfill the said essential and mandatory qualification of income and
ownership of property, respondent No.2 who was next at Serial No.2 in the
CWP No.5284-CAT of 2004 -8-
merit list was rightly selected and appointed as ‘EDBPM’.
The learned counsel further contended that this court in Prem
Chand’s case (supra), has already held that the property qualifications
prescribed for recruitment of ‘EDBPM’ is an essential and mandatory
qualification and on the basis of the said judgment, even in the present case
the earlier order of the Tribunal dated 14.11.2002, has been set aside by this
Court vide order dated 24.07.2003. The Tribunal has committed patent
illegality by disregarding the judgment of this Court once again by
observing that the judgment of this Court has not considered a Full Bench
Judgment of the Tribunal in H.Lakshmana and ors vs. The Superintendent
of Post Offices Bellary and ors, reported as 2003(1) Administrative Total
Judgements 277. The learned counsel relying on the decision of Hon’ble
Supreme Court in the case of State of Orissa vs Bhagaben Sarangi and
others, reported as (1995) SCC (L&S) 320 argued that the Tribunal is bound
by the decision of the High Court of the State and cannot side track or bye
pass the decision of the High Court, more so, in the present case as the
judgment was given in a case inter se the parties themselves.
On the other hand the learned Counsel for respondent No.1 has
supported the decision of the Tribunal by relying upon the H.Lakshmana’s
case (supra). He argued that in the said case it has been held that the
qualification regarding possessing of adequate means of livelihood in the
circular dated 06.12.1993, is neither an absolute condition nor a preferential
condition required to be considered for the appointment as ‘EDBPM’. The
learned counsel further contended that the decision of this Court in Prem
Chand’s case (supra) has been considered by the Tribunal in the said case.
We find that the controversy in present case is no longer res-
CWP No.5284-CAT of 2004 -9-
integra and is squarely covered in favour of the petitioner-Union of India by
the decision of the Hon’ble Supreme Court of India in the case of Smt.
Kiran Singh v. Union of India, reported as 2007 (2) S.C.T. 257, wherein the
same rules and instructions dated 06.12.1993, were considered with regard
to same post of ‘EDBPM’ and Hon’ble Supreme Court observed as under:-
“18. The CAT allowed the application of respondent No.5
merely on the sole ground that as respondent No.5 has secured
more marks in the High School Examination as against the
appellant but it has lost sight of the other eligibility conditions
contained in the Service Rules and the Circular governing the
selection of the candidate to the post in question. The High
Court in its impugned orders has not recorded independent
reasons except to agree with the order of the CAT.
19. In the facts and circumstances of the case, in our view the
order of the CAT which has been affirmed by the High Court is
manifestly erroneous and cannot be sustained. The appellant
and respondent No.5 both have qualified the High School
Examination by securing first division. The eligibility and
criterion for the selection of the candidate to the post of
EDBPM as per the Service Rules was not only the merit
between the two candidates in High School Examination but
the additional criterion was that the candidate must be one
who has “adequate means of livelihood derived from landed
property or immovable assets” if the candidate is otherwise
eligible for appointment. The instructions governing the
eligibility of the candidates also provide that no weightage
CWP No.5284-CAT of 2004 -10-will be given for any higher qualification. The appellant has
fulfilled the essential qualification and required eligibility
criterion and as such her selection to hold the post in
question was valid whereas respondent No. 5 was not eligible
to be appointed on the post for lack of income criterion in
terms of the Circular.
20. In that view of the matter, the impugned judgment and
order of the High Court dated 19.12.2003 passed in CMWP
No. 56142 of 2003 and order dated 28.01.2005 recorded in
CM Review/Recall Application No.9847 of 2004 are quashed
and set aside. As a result thereof, the order dated 24.11.2003
of the CAT in OA No. 1041 of 1996 by which the application of
respondent No.5 has been allowed and appointment of the
appellant has been set aside, shall also stand quashed and set
aside.”
(emphasis supplied)
We find that as was the case in the order under challenge before
the Hon’ble Supreme Court, the Tribunal in the present case has also
allowed the application of respondent No.1 merely on the sole ground that
respondent No.1 has secured more marks in the Matriculation Examination
as against the respondent No 2. However, the Tribunal failed to appreciate
the fact that respondent No.1 was not eligible to be appointed on the post
for lack of income criterion in terms of the instructions dated 06.12.1993,
whereas the respondent No.2 fulfilled the essential qualification and
required eligibility criterion and as such his selection to the post of
‘EDBPM’ was valid.
CWP No.5284-CAT of 2004 -11-
In view of the above, we find that the impugned order dated
27.02.2004 (Annexure P-11) passed by the Tribunal, by which the Original
Application of the respondent No.1 has been allowed, is not sustainable in
law. Consequently, the same is quashed and set aside. The appointment of
the respondent No.2 to the post of ‘EDBPM’ by the petitioner-Union of
India is held to be in accordance with law.
Writ Petition allowed.
(ASHUTOSH MOHUNTA)
JUDGE
February 24, 2009 (NIRMALJIT KAUR)
Gulati JUDGE