Patna High Court
Smt.Dharamsheela Kumari vs The Union Of India & Ors on 21 September, 2010
Author: Hemant Kumar Srivastava
Bench: Shiva Kirti Singh, Hemant Kumar Srivastava
CWJC No.10487 of 2005
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In the matter of an application under Articles 226 and 227
of the Constitution of India.
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Smt. Dharamsheela Kumari, wife of Shri Mahesh Kumar Choudhary,
resident of village Nemua, Post Office Nemua, P.S.-Supaul, District-Supaul
in the State of Bihar. ........Petitioner.
Versus
1. The Union of India through the Secretary, Ministry of
Communication, Department of Posts, New Delhi-cum-Director
General, Department of Posts, Dak Bhawan, New Delhi-1.
2. The Postmaster General, Northern Region, Muzaffarpur-1.
3. The Director of Postal Services, Northern Region, Muzaffarpur-2.
4. The Superintendent of Post Offices, Saharsa Division, Saharsa.
5. The Assistant Superintendent of Post Offices, Supaul Sub-Division,
Supaul.
6. Masiullah, son of Haji Md. Mustafa, resident of village and P.O.
Nemua, Via Sukhpur, P.S.-Supaul, District-Supaul.
7. The Central Administrative Tribunal, through its Registrar, 88A, Sri
Krishna Nagar, Patna-1. .......Respondents.
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For the petitioner: Mr Gautam Bose, Sr. Advocate
Ms Ratna Das, Advocate
Mr Ajay Kumar, Advocate
Mr Nishikant Kumar, Advocate
For Union of India : Mr Sanjay Kumar Pandey, Advocate
For Respondent no.6: Mr Sanjiv Krishna Bariar, Advocate
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PRESENT
THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA
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Shiva Kirti Singh Heard learned counsel for the petitioner, learned counsel & H.K.Srivastava,JJ for the Union of India and learned counsel for respondent no.6.
2. This writ petition is directed against order of the Central Administrative Tribunal, Patna Bench, Patna, dated 16th August, 2005 whereby O.A. No.26 of 2000 preferred by respondent no.6 against the appointment of the writ petitioner on the post of EDBPM of Nemua EDBO in account with Shukhpur S.O. was challenged mainly on the -2- ground that although he had secured higher marks in the concerned examination, he had been wrongly excluded on the plea that he did not fulfil the property qualification.
3. The impugned order contained in Annexure-1 is a common order whereby another original application filed by one Dilip Kumar who was third in merits has been dismissed but O.A. preferred by respondent no.6 has been allowed on the basis of findings in his favour given in paragraph 12.
4. Learned counsel for the petitioner advanced arguments challenging the findings given by the learned Tribunal in respect of property qualification of respondent no.6 mainly on the ground that the sale deed produced by respondent no.6 showed that the purchase was made jointly with his brother and even if joint purchase could be taken to be individual property of respondent no.6, such sale deed was not produced before the authorities till the last date for filing application which was 11.06.1999. It was also submitted on behalf of the petitioner that the learned Tribunal has given an erroneous observation in paragraph 12 that the registered deed in his favour along with his brother was produced on due date. Further criticism has been levelled on the ground that the mutation order along with rent receipt was produced subsequently as noticed by the tribunal also.
5. On behalf of respondent no.6 strong reliance was placed on the fact that he had secured better marks than the writ petitioner and on the basis of judgment of the Apex Court in the case of Suman Verma Versus Union of India and others reported in 2004 AIR SCW, 5490 it was -3- highlighted that since 1991 through an executive order dated 10th May, 1991 issued by the Director General of Post, New Delhi, it has been made clear that the reasonable course would be to offer extra departmental employment to the person who secured maximum marks in the examination conferring eligibility, 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. The aforesaid submission is based upon paragraph 16 of the judgment in the case of Suman Verma (supra) wherein relevant part of executive order dated 10th May, 1991 has been extracted.
6. On behalf of petitioner judgments have been cited to show that eligibility criteria must be shown to have been satisfied on the cut off date and on the basis of such principle of law, it has been submitted that as the registered deed as well as mutation order and rent receipt were not produced by respondent no.6 till the due date, hence he was not eligible for being declared successful candidate.
7. Our attention was drawn in this regard to counter affidavit filed on behalf of the Union of India in the present case. Paragraphs 6 and 18 contain averments against respondent no.6 that he had submitted rent receipt for landed property which was in the joint name of respondent no.6 and his brother, but the sale deed and correction slip (mutation order) was not available with him. On that basis the authorities came to the opinion that the land was not in exclusive name of respondent no.6 till the last date i.e. 11.06.1999 and hence his candidature was not acceptable.
8. On behalf of respondent no.6 an attempt was made to -4- persuade this court to disbelieve the pleadings on behalf of the Union of India and the authorities and to accept his case that the sale deed had been produced by the due date 11.06.1999 because it was of the year 1998 and was already available. We had directed respondent no.6 to produce before us the sale deed on the basis whereof he claimed to have purchased lands along with his brother. Certified copy of the said sale deed was produced to show that the purchase was made through Deed No.1731 for 1998 and the date of presentation and execution was shown to be 31.03.1998. No doubt the mutation order has been passed subsequently on 22/23rd June, 1999, but on behalf of respondent no.6 it has been rightly submitted on the basis of judgment of the Supreme Court in the case of Suman Verma (supra) that owning of agricultural property and getting name entered in revenue record are two different and distinct things. That judgment did not find any defect in ownership of the property on account of mutation taking place subsequently. In law it is well settled that mutation does not confer right or title to any property.
9. No doubt there is a gray area as to whether respondent no.6 produced the sale deed showing joint purchased by him and his brother of about 1 Bigha 3 Dhurs of land by the cut off date or not but on a careful reading of the contents of paragraph 6 of the counter affidavit of the Union of India we notice that the emphasis is on Kewala and correction slip which could not show him to be an exclusive owner of the land which is clear from the last sentence which runs as follows:
"As the land is / was not in exclusive name of applicant till the last date fixed i.e. 11.06.1999. So the candidature of the applicant was not acceptable."-5-
10. In the facts of the case, when the certified copy of the sale deed of 1998 showing joint ownership of agricultural land has been produced before us by respondent no.6, we are inclined to accept the submission on behalf of respondent no.6 that although the mutation order and rent receipt were produced belatedly, the sale deed showing ownership over agricultural lands together with his brother was produced and it was within the knowledge of the concerned authorities.
11. The issue now arising is whether on account of land standing in the name of respondent no.6 jointly with his brother, he qualified in meeting the eligibility criteria that he should have independent source of income and landed property in his name. On carefully going through the column 3 of Annexure-2 which is the notification / requisition sent to Employment Exchange, we find that by submitting income certificate respondent no.6 had successfully showed that he had independent source of adequate income. The sale deed shows that he owns land in his name along with his brother. The requirement does not mention that the land should stand divided and separated from that of a joint purchaser. It would be unreasonable to hold that under the scheme a joint purchase does not confer eligibility in favour of respondent no.6. In law a joint purchaser can even transfer his interest in joint property and the purchaser can enforce such purchase by taking required steps seeking partition.
12. Thus, on consideration of the material facts it is found that respondent no.6 was not only the candidate with best merit, but he also fulfilled the property qualification and income qualification on the -6- basis of documents available with him from before the cut-off date. In view of such materials we are not inclined to interfere in the matter. Hence the writ petition is dismissed. No cost.
13. On behalf of writ petitioner our attention was drawn to the fact that the tribunal order has remained stayed by order of this court dated 24.08.2005 and as a result the writ petitioner has continued to hold the post in question since August 1999 i.e. for more than eleven years. On the basis of such peculiar facts prayer has been made for some observations to accommodate the writ petitioner in any other similar or equivalent post nearby in view of observations in paragraphs 17 and 18 of that judgment in the case of Suman Verma (supra). For the sake of equity, we observe that the writ petitioner may be suitably accommodated, if possible.
(Shiva Kirti Singh,) (Hemant Kumar Srivastava, J) Patna High Court The 21st September, 2010 Shahid. NAFR