Allahabad High Court
Sanjay Kumar Singh vs Central Administrative Tribunal And ... on 15 November, 2002
Equivalent citations: 2003(1)AWC406, (2003)1UPLBEC144
Author: Rakesh Tiwari
Bench: M. Katju, Rakesh Tiwari
JUDGMENT Rakesh Tiwari, J.
1. Heard the learned counsel for the parties and perused the records.
2. The aforesaid two writ petitions have been filed against the judgment and order dated 30.4.2002 passed by the Central Administrative Tribunal, Allahabad Bench, by which appointment of Sanjay Kumar Singh, petitioner in Civil Misc. Writ Petition No. 23938 of 2002, was quashed and the respondents were directed to appoint Gyan Prakash Yadav, respondent No. 6 in the said writ petition.
3. The short points involved in the present case are :
(1) Whether Gyan Prakash Yadav was eligible for appointment on the last date fixed for receiving applications, i.e., 20.11.1998?
(2) Whether the Senior Superintendent of Post Offices (East Division), Varanasi, could have extended the date for submitting the proof of income and ownership of property during the extended period for submission of forms?
4. It is contended by the senior standing counsel that the last date for receiving applications was 20.11.1998 and on the said date, Gyan Prakash Yadav was not having any proof of his income and ownership of landed property. It is submitted that he got the land registered in his name on 25.11.1998 and prior to this date, he was not having any landed property in his name and as such, he was not eligible on 20.11.1998, the last date for submission of forms. This contention has been made in paragraph 9 of the writ petition and has not been denied in the reply made in paragraph 20 of the counter-affidavit.
5. The last date for submission of forms had been extended by the Senior Superintendent of Post Offices (East Division), Varanasi, upto 27.11.1998. It has been contended that the Senior Superintendent of Post Offices had no authority to extend the date, which finds support from the Circular No. 17-104/91-ED and Trg., dated 18th September, 1995, issued by the Director General (Posts), wherein this question has been considered and clarified. According to the Circular, the candidates must possess such property before the stipulated date and not after the last date prescribed otherwise the same should not be entertained. The Circular dated 18th September, 1995, is quoted below :
"(3) Clarification regarding income and ownership of property conditions.--Attention is invited to letter of even number, dated 6.12.1993, on the above-mentioned subject. This office subsequent letter No. 17-366/91-
ED and Trg., dated the 26th May, 1995, containing clarifications on certain points of doubt including the subject cited above also refers.
(2) In the context of the above instructions, references have been received from certain quarters seeking clarifications on the following two points :
(i) If a candidate for appointment to the post of EDBPM/EDSPM acquires landed property in his own name after submission of the application in response to the open advertisement but before verification of the bio-data including income/ property, whether he should be considered eligible for consideration for appointment to the aforesaid post with regard to property qualification ; and
(ii) If a candidate for appointment to the post of EDSPM acquires landed property in his own name after sponsorship of his candidature by the Employment Exchange in response to the notification but before verification of educational qualification, income/ property, etc., whether such a candidate should be considered eligible for consideration for appointment to the above post in relation to the property qualification."
(3) The issues raised above have been examined in this office. Although in the notification issued to the Employment Exchange, specific mention about the broad eligibility conditions required to be satisfied by the prospective candidates are mentioned excepting residence, the Employment Exchange cannot be expected to know whether the candidate sponsored fulfils the income/ property condition inasmuch as candidates are not required to apply to the Employment Exchange with this information. In case the Employment Exchange sponsors the minimum prescribed number of suitable candidates within the stipulated date and upon being addressed by the recruiting authorities, not less than three candidates respond with documentary proof with regard to fulfilment of prescribed eligibility conditions, the question of issue of open advertisement would not arise. In this case, the nominated candidates are required to be addressed through registered post calling for application within the date to be stipulated by the recruitment authorities. In the rarest case, if a candidate at the time of making an application does not satisfy the income/ property condition but requires this qualification subsequent to the submission of the application and sends a written request enclosing documentary evidence in continuation of his application and the same is received within the stipulated date, the recruiting authorities should entertain the same. However, if such an intimation is received after the last date prescribed or the development regarding acquisition of this qualification itself takes place after the last date prescribed is over, the same should not be entertained. Similar procedure may also be followed in case it becomes necessary to fill in the post of EDBPM/EDSPM through open advertisement. On other words, in this case also, if an intimation accompanied by documentary proof is received subsequent to the submission of the application within the stipulated date, the same should also be entertained and acted upon.
(4) The contents of this letter may kindly be brought to the notice of all concerned for information/guidance and uniform application. (D. G. Posts No. 17-104/91-ED and Trg., dated the 18th September, 1995).
4. Cycling knowledge is a prerequisite condition for ED posts attached with outdoor duties.--In pursuance of the Madan Kishore Committee Report on ED system, orders were issued, vide D.G., P & T., letter No. 1-2/72-EDC, dated 18.8.1973, that ability to ride bicycle should be a prerequisite for EDAs to be engaged on outdoor duties, viz., EDAs/EDMCs, ED Messengers, etc., in area where bicycles can be used. The matter was also considered by the Committee on Enquiry on ED System (Savoor Committee) which has submitted its report in 1986. The Committee has also recommended that all appointments of ED posts attached with outdoor duties should have knowledge of cycling. It should be ensured that the persons engaged to ED posts with outdoor duties in areas where cycle can be used should have knowledge of cycling as a prerequisite condition.
(D. G., Posts, Letter No. 41-462/87-PE-11, dated the 14th December, 1987).
(5) Verification of conditions for appointment to be done prior to appointment--One of the preconditions for appointment to the post of.
6. It is submitted that in view of the circular, the action of the then Senior Superintendent of Post Offices (East Division), Varanasi, extending the date from 20.11.1998 to 27.11.1998 was clearly in violation of the circular dated 18.9.1995.
7. The second contention of the petitioner is that the appointing authority for the post of EDBPM is the Inspector and, therefore, the Senior Superintendent of Post Offices could not have usurped the powers of Inspector. He has placed reliance upon the judgment in State of Punjab and Anr. v. Hari Kishan Sharma, AIR 1966 SC 1081. The learned counsel for the petitioner further contended that the Central Administrative Tribunal has totally overlooked the circular dated 18.9.1995 while recording the finding and holding that Gyan Prakash Yadav has submitted proof regarding the property before the last date which was extended upto 27.11.1998. He has drawn the attention of this Court to paragraph 7 of the counter-affidavit filed before the Central Administrative Tribunal as well as in the counter-affidavit filed in the present writ petition. He has submitted that the plea taken by Gyan Prakash Yadav in the counter-affidavit, was never taken before the Central Administrative Tribunal and as such the same is not sustainable. As such, the Central Administrative Tribunal has completely erred by allowing the original application.
8. Counsel for the respondents submits that Gyan Prakash Yadav had submitted his form before the last date for submission of applications as extended, after completing all formalities and he was fully eligible for appointment to the post of EDBPM. It is submitted that copies of income certificate, residence certificate and documents relating to possession of immovable property, etc., were annexed with the form and further that Gyan Prakash Yadav was more meritorious than Sanjay Kumar Singh, petitioner in Civil Misc. Writ Petition No. 23938 of 2002.
9. Reliance has been placed on paragraph 6 of the decision in Bali Ram Prasad v. Union of India and Ors., 1997 SCC (L&S) 468, wherein the Apex Court has held :
"6. The Tribunal has itself noted that as compared to respondent No. 7 the appellant was more meritorious. He had obtained 546 marks in the first division in Matriculation examination as compared to respondent No. 7 who had passed in third division and got 404 marks. In Class VII examination the appellant had got 468 marks while respondent No. 7 had got 220 marks. The appellant's annual income was Rs. 17,000 while respondent No. 7's annual income was Rs. 7,500. The Tribunal has rightly noted that they were impressed by the high marks secured by the appellant and in the normal circumstances he should have been the only choice for the post. However, according to the Tribunal there were two handicaps from which the appellant suffered. The first handicap was that his cousin brother Bhola Prasad was working in the Post Office as Extra Department Delivery Assistant ; and the second handicap was about limitation. We have already dealt with the second handicap which according to the Tribunal was liable to non-suit the appellant. In our view no such handicap remained as the delay in filing the application deserves to be condoned in the interest of justice and we have done so. So far as the other handicap is concerned it is the only handicap which remains for consideration. In our view it is no handicap at all. The decision of the authorities dated 17.10.1966, reads as under :
"Employment of near relatives in the same office to be avoided. Instances have come to light where very near relations have been appointed to work as EDBPM, ED, DA or ED Mail Carrier in the same office. As this is fraught with the risk of frauds etc. this should be avoided."
It is difficult to appreciate how pursuant to the said decision the appellant could have been treated as not qualified to be appointed as Extra Department Branch Postmaster in the Post Office."
10. It is contended on the basis of aforesaid excerpt that in normal circumstances, Gyan Prakash Yadav should have been the only choice for the post as he had secured 67% marks whereas Sanjay Kumar Singh had secured 63% marks in the High School and as such, appointment of Sanjay Kumar Singh on the post of EDBPM on 1.6.1999 is patently illegal.
11. It is further contended that Gyan Prakash Yadav filed Original Application No. 849 of 1999 before the Central Administrative Tribunal, Allahabad Bench, in which despite service of notice Sanjay Kumar Singh did not appear to contest the case and this fact is admitted in paragraphs 14 and 15 of Writ Petition No. 23938 of 2002. The counsel for the respondents submits that the plea that the last date was wrongly extended was never raised earlier and has been raised for the first time in Writ Petition No. 33605 of 2002 before this Court. We are not inclined to let this plea be raised for the first time at this stage.
12. Original Application No. 849 of 1999 was allowed quashing the appointment of Sanjay Kumar Singh vide order 30.4.2002 and direction was issued to the respondents to appoint Gyan Prakash Yadav, respondent No. 6, who was denied fair selection despite being more meritorious and eligible for appointment on the post of EDBPM. The approach of the Central Administrative Tribunal cannot be faulted and the judgment of the Tribunal dated 30.4.2002 is liable to be upheld.
13. It is contended by the respondents that since the Postal Department had extended the last date for submission of applications for all the candidates including respondent No. 6, therefore, they are estopped from contending that Gyan Prakash Yadav was not eligible on the date of application and that respondent No. 6 Gyan Prakash Yadav fulfilled all the requirements before the last date extended upto 27.11.1998, for submission of application. It is contended that the guidelines issued by the Director General are merely directory in nature vide circular dated 18.9.1995 and he was eligible. The plea that Gyan Prakash Yadav had acquired landed property during extended period is hyper-technical and irrelevant. He was eligible for appointment before the last date for submission of forms.
14. In view of the discussions made above, both the writ petitions fail and are dismissed. The judgment and order passed by the Central Administrative Tribunal, Allahabad Bench, directing appointment of Gyan Prakash Yadav is upheld. No order as to costs.