IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 14664 of 2004(S)
1. DEEPA VINOD, D/O. SRI.A.GOPI,
... Petitioner
Vs
1. SENIOR SUPERINTENDENT OF POST OFFICES
... Respondent
2. POSTMASTER GENERAL, CENTRAL REGION,
3. UNION OF INDIA, REPRESENTED BY ITS
4. CENTRAL ADMINISTRATIVE TRIBUNAL,
For Petitioner :SRI.O.V.RADHAKRISHNAN (SR.)
For Respondent :SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice K.T.SANKARAN
Dated :21/02/2008
O R D E R
K. BALAKRISHNAN NAIR & K.T. SANKARAN, JJ.
...................................................................................
W.P.(C) No. 14664 OF 2004
...................................................................................
Dated this the 21st February, 2008
J U D G M E N T
K. Balakrishnan Nair, J:
The petitioner is the applicant in O.A.No. 590 of 2001. Respondents 1 to 3 were
the respondents therein. The petitioner was selected and appointed as E.D. Branch
Postmaster of Vatanappilly Beach Branch. From among the applicants who applied for
the post, the petitioner was selected and appointed, as per memo dated 16.01.2002.
Later the Reviewing Authority found that the income of the petitioner is not derived
from landed property. As per the conditions prescribed for appointment, the
candidates should have independent income and that it should be derived either from
landed property or immovable property. The applicant’s income was from a partnership
firm in which she was a partner. The Reviewing Authority brought this to the notice of
the Appointing Authority, who in turn issued Annexure-A5 memo dated 05.06.2001 to
the applicant, which reads as follows:
“The Reviewing Authority has held that your selection as BPM,
Vatanappally Beach, was erroneous on the ground that independent
income is not derived from landed or immovable property and as such
you did not fulfill the preferential condition for the appointment. It is
therefore proposed to terminate your service. You are given
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2
opportunity to make representation against the proposed action. If no
representation is received within 10 days of receipt of this letter, it will
be presumed that you have no representation to make and action will
be taken accordingly.”
2. Feeling aggrieved by the aforesaid memo, the petitioner filed Ext. P1
O.A.No. 590 of 2001. The petitioner contended that the condition that independent
income should be derived either from landed property or immovable property is ultra
vires and unconstitutional and it has been held so by this Court also. The official
respondents filed a reply statement reiterating their stand in Annexure-A5. Thereafter,
an additional reply was also filed. The Tribunal, after hearing both sides. did not decide
whether Annexure-A5 is valid or not, but directed the Appointing Authority to re-consider
the claims of all the applicants including petitioner’s claim and to make fresh selection.
Pursuant to the said direction in Ext.P5 order of the Tribunal, Ext.P7 order dated
05.11.2003 was passed, making the selection solely based on the marks obtained in
the S.S.L.C. Examination. In the meantime, the petitioner filed a Review Application
before the Central Administrative Tribunal , which stood dismissed by Ext. P10 order
dated 07.05.2004. Hence this Writ Petition, challenging Exts. P5, P7 and P10 orders .
3. The learned Senior Counsel Shri. O.V. Radhakrishnan appearing for the Writ
Petitioner submitted that the Tribunal should have either upheld the challenge against
Annexure-A5 or repelled it. Instead of doing that, the Tribunal went at a tangent,
unsettled her selection and also ordered to re-consider the applications of other
candidates also for appointment to the post who have suffered her selection and
appointment. So the learned counsel prayed for interference with the impugned order.
The other candidates who were considered for selection as per Ext. P7 order, were not
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made parties to the Writ Petition. Later they were impleaded. Additional 6th respondent
who was one of the candidates so impleaded, has filed a counter affidavit supporting
the impugned order. We also heard the learned counsel appearing for the additional
6th respondent.
4. We find considerable force in the submission of the learned Senior Counsel
that the Tribunal was only called upon to decide the validity of Annexure-A5 order,
which was impugned in Ext.P1 Original Application. The Tribunal could have either
dismissed the O.A. holding that it is only a notice or could have quashed it, holding that
the condition regarding income from the landed property has already been held to be
unconstitutional by this Court. Instead of choosing one of the aforesaid options, the
Tribunal had made a further enquiry into other collateral matters and gave a direction to
the appointing authority to make a fresh selection. In that process, the selection and
appointment of the petitioner stood set aside, without there being any challenge to it by
the rival candidates or any decision of the Reviewing Authority. We are of the view
that the course followed by the Tribunal is plainly illegal. Accordingly, Exts. P5 and P10
orders are quashed. Ext.P7 being an order passed, based on Ext.P5 order, same is
also quashed. Since Annexure A5 is only a notice, we leave it to the competent authority
to take a decision in the matter. Instead of the Appointing Authority, we feel, the
Reviewing Authority shall do that. The said authority shall take a decision, after affording
an opportunity of being heard to the petitioner and other affected parties, if any, as to
whether it should stick to the stand taken by it earlier which led to issuance of
Annexure-A5 order/notice. The Writ Petitioner shall produce a copy of this judgment
before the Reviewing Authority within one month from today. The Reviewing Authority
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shall take a decision in the matter within two months from the date of receipt of a copy
of this judgment.
The Writ Petition is disposed of as above.
K. BALAKRISHNAN NAIR
JUDGE.
K.T. SANKARAN,
JUDGE.
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