CASE NO.: Appeal (civil) 6275 of 2004 PETITIONER: SUMAN VERMA RESPONDENT: UNION OF INDIA & OTHERS DATE OF JUDGMENT: 24/09/2004 BENCH: Arijit Pasayat & C.K. Thakker JUDGMENT:
J U D G M E N T
(Arising from Special Leave Petition (civil) No. 8809 of 2004)
Thakker, J.
Leave granted.
The present appeal is filed against the judgment and order dated
April 2, 2004 passed by the High Court of Judicature at Patna in
C.W.J.C. No.4106 of 2004. By the said order, the High Court
confirmed the order passed by the Central Administrative Tribunal
(“CAT” for short) Patna Bench, Patna on March 9, 2004 in Original
Application No.307 of 1997.
The case of the appellant herein is that she passed her
Matriculation Examination from Bihar School Examination Board,
Patna in 1983 in Second Division securing 531 marks out of 900
marks. She passed B.A. with Honours from Muzaffarpura in 1st
Division in 1988. In the year 1996, she got her name enrolled with
the Employment Exchange. She was possessing agricultural land of
10 Kathas having purchased from one Dwarka Prasad by a registered
sale deed dated 1st March, 1995. She was also having a residential
house in village Khajuhathi.
According to the appellant, a post of Extra Departmental
Branch Post Master (“EDBPM” for short), Khajuhathi Post Office,
Block Manjhi fell vacant as the EDBPM, Post Office, Khajuhathi got
promotion. A notification was, therefore, issued for filling of the said
vacancy and names of eligible candidates were called from Regional
Employment Exchange, Chhapra vide a letter dated 14th October,
1996. According to the appellant, nine names were sent by the
Employment Exchange. The appellant was found eligible, qualified
and most suitable. Accordingly, the appellant was appointed to the
said post by an order dated December 13, 1996. Since then, she is
working as EDBPM, Khajuhathi.
The appellant stated that though respondent No.6 was neither
eligible nor qualified to be appointed as EDBPM, she was aggrieved
by the appointment of the appellant and the action taken by the
authorities and approached the Central Administrative Tribunal
(CAT) by filing Original Application challenging the appointment of
the appellant. It was contented by respondent No.6 before the CAT
that though she was eligible and qualified and was more meritorious
inasmuch as she had obtained 584 marks out of 900 marks as against
the appellant who had obtained 531 marks at the Matriculate
examination, she was not appointed. It was also her case that she
possessed agricultural land as required and proof of having possessed
such agricultural land was produced by her. It was, therefore,
obligatory for the authorities to consider her case and she ought to
have been preferred as against the appellant.
The CAT after considering the rival contentions of the parties,
allowed the petition holding that the case of the applicant before the
CAT (respondent No.6 herein) had been ignored on flimsy grounds
keeping aside the merits of the contesting candidates. Resultantly, the
order dated 13th December, 1996 was set aside by the CAT and a
direction was issued to appoint respondent No.6 (applicant before the
CAT) forthwith. The Tribunal also observed that since respondent
No.6 (appellant herein) was working since several years, on account
of delay in disposal of the Original Application, the authorities were
directed to consider if she could be appointed “in the vicinity if and
when such vacancy arises” provided she is otherwise fit and eligible
for such appointment.
Being aggrieved by the order passed by the CAT, the appellant
approached the High Court of Patna. The High Court, however,
confirmed the decision of CAT and dismissed the petition. Against
the said decision, therefore, the appellant has approached this Court.
We have heard the learned counsel for the parties. Mr.
Goswami, learned senior counsel for the appellant strenuously urged
that respondent No.6 was neither eligible nor qualified to be appointed
as EDBPM and she was, therefore, rightly ignored by the authorities.
Drawing the attention of the court to the notification issued by the
authorities, the counsel submitted that it was absolutely necessary that
the candidate must have possessed sufficient landed property in
his/her name and he/she was required to produce the relevant record
in token of having possessed such property. In the instant case,
respondent No.6 did not possess immovable property and the said fact
was duly considered by the authorities in its proper perspective and a
decision was taken that she was not eligible. The CAT ought not to
have interfered with such a decision and should not have issued
direction to the authorities to appoint her. The order, therefore,
deserves to be set aside. It was also argued that a totally irrelevant
and extraneous factor was kept in mind by CAT of marks obtained by
two candidates at the Matriculation Examination. The counsel
submitted that the necessary educational qualification was passing of
Matriculation Examination and not marks obtained in the said
examination. Once a candidate is eligible, his case is required to be
considered in accordance with the guidelines and norms fixed by the
Department and there can be no “preference” of one over the other.
The said fact, therefore, should not have weighed with the authority
and on that ground also, the decision is vulnerable. It was contended
that a direction was issued by CAT to “appoint” respondent No.6. No
such direction could have been issued by CAT even if it was satisfied
that the action taken by the authorities was not in consonance with
law. The limited direction which could be issued could be to set aside
the decision taken by the authorities and to consider the matter afresh
in accordance with law. Finally, it was submitted that the appellant
was found to be most suitable by the authorities and was appointed as
early as in 1996. About eight years are over and she is working as
EDBPM. If at this stage, the appointment is cancelled, serious
prejudice will be caused to her. It was, therefore, urged that even if
this Court is of the view that the action taken by the authorities could
not be termed legal or lawful, in peculiar facts and circumstances of
the case, the appointment of the appellant may not be cancelled.
Mr. Harish Chandra, learned senior counsel for the Union of
India supported the case of the appellant. It may, however, be stated
that the authorities have not challenged the decision of CAT before
the High Court or in this Court.
Mr. Amit Pawan, the learned counsel for respondent No.6, on
the other hand, supported the order passed by the Tribunal and
confirmed by the High Court. It was urged that respondent No.6 was
eligible and qualified. She possessed agricultural property as per the
requirement of the Notification. Referring to the conditions in the
Notification issued by the Department of Posts, the counsel submitted
that respondent NO.6 fulfilled all the conditions mentioned in the
Notification. She was the permanent resident of the village. She had
passed her Matriculate Examination and secured more marks than the
marks secured by the appellant herein. She had adequate means of
income from independent source of livelihood and necessary
certificate had been produced by her. It was stated that pursuant to the
gift deed dated October 14, 1996, she became the owner of
agricultural land. The last date for submission of the applications was
12th November, 1996. Respondent No.6 became owner of agricultural
land on October 29, 1996, i.e. before the last date of submission of
application. The mutation entry, however, could be made on
November 22, 1996. It is thus clear, submitted the counsel, that
respondent No.6 became owner of immovable property prior to the
last date of submission of application, but the mutation entry could be
effected in Revenue Record subsequently. But from that, it cannot be
said that respondent No. 6 did not possess agricultural land on the last
date of submission of application. Entry in Revenue Record is
immaterial so far as the title or ownership of the land is concerned.
That fact, therefore, could not have been considered by the authorities
and the CAT committed no error of law or of jurisdiction in setting
aside the action of the authorities and directing them to appoint
respondent No.6 as she was more meritorious. It was also submitted
that since the relevant education qualification is Matriculation, marks
obtained at the said examination would indeed be relevant and the
Tribunal was wholly justified in placing reliance on marks obtained at
the said examination. The order, therefore, required no interference.
It was also confirmed by the High Court. Respondent No.6 had
approached the CAT as soon as the action was taken by the
department but CAT took time in final disposal of the matter which
should not come in the way of respondent No.6 in getting appropriate
relief. In any case, appropriate observations have been made by the
Tribunal to accommodate the appellant, if it is possible. The counsel,
therefore, submitted that the appeal deserves to be dismissed.
Having heard the learned counsel for the parties and having
gone through the record, we are of the view that the decision rendered
by the CAT and confirmed by the High Court needs no interference.
It is clear from the notification and the conditions laid down therein
that both, appellant as well as respondent No. 6 were qualified. So far
as education qualification is concerned, both have passed Matriculate
examination. Clause D of the notification required a candidate to
have passed Matriculate or equivalent examination. It also stated that
no weightage would be given to higher qualification. It is thus clear
that the authorities were to consider the factum of passing of
Matriculation examination. From the record, it is further clear that
whereas the appellant had obtained 531 marks out of 900 marks,
respondent No. 6 had obtained 584 marks. Respondent No. 6 was
thus more meritorious so far as marks obtained at the Matriculation
examination was concerned. It may be stated at this stage that it is not
even the case of the Department that respondent No. 6 did not possess
requisite educational qualification.
The consideration weighed with the authority was that the
appellant was having agricultural land in her name, while respondent
No. 6 did not possess agricultural land and thus she was not eligible.
Now, it is the case of respondent No. 6 that she had become owner of
the agricultural land on the basis of the gift-deed dated October 14,
1996, before the last date of submission of application. Mutation
entry could not be affected before 12th November, 1996 and it was
done on 22nd November, 1996. CAT, in our opinion, rightly held that
in the circumstances, it could not be held that respondent No. 6 did
not possess agricultural land on the last date of submission of
application form and it could not be said that she was not eligible.
Our attention in this connection was invited by learned counsel
for both the parties to a decision in Rekha Chatravarti v. University
of Rajasthan (1993) Supp. 3 SCC 168. In that case, an
advertisement/notification was issued inviting applications for the
post of Assistant Professors having requisite qualifications. Some
candidates had no requisite qualification. They, however, acquired
such qualification afterwards. The question before this Court was
whether such candidates could be treated as qualified, eligible and
having acquired necessary qualification at the relevant date. This
Court held that the candidate must be qualified on the last date of
making application for the post advertised or on the date specifically
mentioned in the advertisement/notification. Qualifications acquired
by a candidate after such date cannot be taken as qualification for the
post and he cannot be appointed.
One of the guidelines issued by this Court reads;
“B. The candidates selected must be qualified as
on the last date for making applications for the posts in
question or on the date to be specifically mentioned in
the advertisement/notification for the purpose. The
qualifications acquired by the candidates after the said
date should not be taken into consideration, as that would
be arbitrary and result in discrimination. It must be
remembered that when the advertisement/notification
represents that the candidate must have the qualifications
in question, with reference to the last date for making the
applications or with reference to the specific date
mentioned for the purpose, those who do not have such
qualifications do not apply for the posts even though they
are likely to acquire such qualifications and do acquire
them after the said date. In the circumstances, many who
would otherwise be entitled to be considered and may
even be better than those who apply, can have a
legitimate grievance since they are left out of
consideration.” (emphasis supplied)
Learned counsel for the appellant submitted that respondent No.
6 got her name mutated in Revenue Records on November 22, 1996
and that is the relevant date. Last date of submission of application
was 12th November, 1996. The ratio laid down in Rekha Chaturvedi
thus applies to the case on hand and as respondent No. 6 was not
eligible, her case could not be considered.
In our considered opinion, however, the learned counsel for
respondent No. 6 is right in submitting that respondent No. 6 had
become owner of agricultural land in October, 1996. The relevant
date for consideration was November 12, 1996 and before that date,
she possessed such property. Rekha Chaturvedi, in our view, supports
respondent No. 6 rather than the appellant. When respondent No. 6
became the owner of the property in October, 1996 before the last
date of submission of application, she could be said to be possessing
agricultural land and, hence, she was eligible. In our opinion, owning
of agricultural property and getting the name entered in Revenue
Record are two different and distinct things. Mutation entry does not
confer right or title to the property. Though the law is very well
settled, in our opinion, the CAT was right in relying upon the decision
of this Court in Sawarni v. Inder Kaur and Others AIR 1996 SC 2823
wherein this Court held that mutation entry neither creates nor
extinguishes title or ownership.
In view of settled legal position, in our judgment, CAT as well
as the High Court were right in holding that though respondent No. 6
was eligible having possessed agricultural land, her case was ignored
by the authorities and hence, the action was illegal and improper. In
view of the fact that respondent No. 6 was more meritorious, since she
had obtained more marks than the appellant, the direction of CAT to
appoint her cannot be said to be illegal or unlawful. The said
direction is, therefore, not interfered with. CAT has also referred to
para 2 of the Executive Order dated May 10, 1991, issued by the
Director General of Post, New Delhi, which reads thus;
“The deciding factor for the selection of ED
BPMs/ED SPMs should be the income and property and
not the marks, has been examined threadbare but cannot
be agreed to as this will introduce an element of
competitiveness in the matter of possession of property
and earning or income for determining the merit of
candidates for appointment as ED Agents. Proof of
financial status is not only subject to manipulation but is
also detrimental to merit. When the Constitution of India
guarantees equal opportunity to all for their
advancement, the reasonable course would be offer ED
employment to the person who secured maximum marks
in the examination which made him eligible for the
appointment, provided the candidate has the prescribed
minimum level of property and income so that he has
adequate means of livelihood apart from the ED
Allowance.”
Regarding appointment and continuance of the appellant for a
period of almost eight years in service, it may be stated that
respondent No. 6 had approached a competent Tribunal for ventilating
her grievance immediately after the issuance of order in favour of the
appellant. It was because of the pendency of the matter before the
Tribunal that respondent No. 6 could not get the case decided and the
matter finally adjudicated. The learned counsel for respondent No. 6
is, therefore, right in submitting that the said fact should not cause
prejudice to respondent No. 6 who had approached the Tribunal in
time. To us, the CAT is right in considering the matter in its entirety
and in making observations that the case of the appellant herein be
considered for appointment as EDBPM in the nearby vicinity if
otherwise she is fit.
No doubt relying on Rekha Chaturvedi, the learned counsel for
the appellant submitted that in that case this Court after holding the
selection process unlawful, did not interfere with the action and
refused to set aside illegal appointment on the ground that the case
was heard after eight years. In the case on hand, however, respondent
No. 6 had approached the Tribunal immediately, the Tribunal
considered the facts and circumstances of the case and granted relief
to respondent No. 6 and also made suitable observations so that the
present appellant may be accommodated if possible. Moreover that
order was confirmed by the High Court. We, therefore, see no reason
to disturb that direction.
For the foregoing reasons, the appeal deserves to be dismissed
and is, accordingly, dismissed. In the facts and circumstances of the
case, however, there shall be no order as to costs.
