Central Administrative Tribunal - Mumbai
Sanjay Vasantrao Hage, Edbpm vs Union Of India (Uoi) And Ors. on 7 August, 2001
Equivalent citations: 2003(2)SLJ67(CAT)
JUDGMENT B.N. Bahadur, Member (A)
1. This is an application made by Shri Sanjay Vasantrao Hage, seeking the relief from this Tribunal to quash the impugned order dated 2.5.1997 (A. 2) through which it is stated that he was appointed as B.P.M. through mistake and given to understand that his services will be terminated at the end of expiry of one month from the date of receipt of this (impugned) order. The Applicant also seeks all consequential benefits, including costs.
2. The facts of the case are that the Superintendent of Post Offices, Buldana had approved applicant's appointment as EDBPM (A. 3 Page 8). Applicant states that he was regularly appointed and hence the termination order is illegal. He had filed a suit in the Civil Court, Khamgaon, due to ignorance, soon after this Order, but the Court dismissed the suit on 5.6.1997 for want of jurisdiction. He had thereafter approached this Tribunal, a few days later (i.e. on 12.6.1997).
3. The Applicant has given details of the process of his selection, and states that 11 Applicants were allowed to appear at the competitive test after which he was selected, and appointed having stood at No. 1 in merit-list. It is stated in the Application that respondent No. 3 also appeared for the test, but could not make it in the merit-list. The applicant states that he received necessary training, and all pre-appointment formalities, like police enquiry report etc., were completed before his appointment. His work was found to be satisfactory on inspection by Asst. Superintendent of Khamgaon in March, 1997. The Applicant alleges that the order now made for about appointment of respondent No. 3 is done under pressure. It is with these grievances that the Applicant approaches us in this Application, seeking the Relief/s as described above.
4. The respondents in the case have filed a Written Statement of Reply, resisting the claims of the Applicant and stating that the selection of Applicant was subject to formalities. It is stated that the post of EDBPM is an allowance post, and no right accrues as a civil post. Support is sought from Rule 6 of Extra Departmental Conduct and Services Rules in the Written Statement.
5. The respondents have further stated that recourse to departmental representation should have been taken, and it is even denied that respondents have conducted a competitive test as alleged. However, it is clearly accepted in Written Statement that a selection process was undertaken and that Applicant was selected for the post of EDBPM on the basis of marks obtained in SSC Examination. The defence is taken that the respondents had failed to take into consideration the prayers that were agitated to by another candidate (i.e. R. 3) as per the Circulars of DG, P & T dated 12.9.1988 and 28.8.1996. These are annexed at R. 1 and R. 2. This is one of the main grounds taken in defence by the respondents.
6. While it is contended that appointment was not regular it is nevertheless accepted in the Written Statement that Applicant was continuously working as EDBPM w.e.f. 1.1.1997. It was only in order to give justice to Respondent No. 3 and to rectify the "mistake" of irregular selection that the present orders are being issued. Further portion of Written Statement provides parawise replies.
7. We have heard the learned Counsel for the Applicant. There is no presence on behalf of the Respondents despite knowledge of the case and, in the absence of learned Counsel Shri P.M. Pradhan or Shri S.S. Karkera, we have proceeded to decide the case on merits and on the basis of Written Statements/papers in so far as the respondents are concerned. These have been carefully seen. There is no representation either on behalf of R. 3 in the case and we find from record of Part "C" File that notices had been issued to R. 3 even after the case is taken up from Sine Die List, (latter notice to R. 3 sent by registered post on 14.05.01). Thus, the R. 3 has been properly served. We note as pointed out that one official from office of Sr. Superintendent of Post Offices, Buldana Division is present in the Court during the hearing.
8. The learned Counsel for the applicant Mr. C.B. Kale took as over the facts of the case and pointed out that soon after the issue of the impugned order, the Applicant had taken recourse for redressal of his grievance. An important contention made by him is that this was a regular appointment as is clear not only from the document at Annexure A.3 (Page 8) but also from the very order of termination. Further, all formalities had been completed before the appointment of applicant.
9. Another grievance put forth by the learned Counsel for the Applicant was that the principles of natural justice had been totally flouted, by the fact that the termination order had been issued straight way and no opportunity by way of Show Cause Notice was issued. Thus the principle of audi alteram partem has been given the go by.
10. Reacting to the defence taken about Rule 6 of the Conduct Rules, learned Counsel Mr. Kale stated that this rule was not at all applicable, and has further cited case law in the matter. He depends on the case decided by the Allahabad Bench of this Tribunal in the matter of Surya Bhan Gupta v. UOI and Ors., 1998(7) ATC 226=1988(3) SLJ 288 (CAT) and Raipada Biswas v. UOI and Ors., ATR 1987(2) CAT 587. The learned Counsel Mr. Kale also referred to the defence taken by the respondents in their Written Statement with reference to the instructions of the Govt. as contained in the documents at Annexure Rule 1 and Rule 2. He took us through these documents and pointed out that all these are irrelevant. He specially dealt at some length in regard to the instructions contained in the letter dated 12.9.1988 copy at Rule 1 in sub para (i) of para 3. It was argued by Mr. Kale this was not applicable in this case,
11. The learned Counsel further stated that it is not correct to say that EDS post is not a civil post and that this matter has been settled by the judgment of Hon'ble Supreme Court.
12. We have carefully considered the Written Statement filed in reply by the Respondents. In the first place, a perusal of the orders at Annexure A. 3 dated 26.12.1996 and the impugned order dated 2.5.1997, and the defence taken in the Written Statement convinces us that the appointment was made on a regular basis. While the respondents have stated in Written Reply that it was not a regular appointment, they have provided no evidence by way of record otherwise. It is clear that all formalities had been completed, and no evidence is provided to the contrary. It is also important here to note that in the impugned order of termination dated 2.5.1997, the reason that is given for terminating the services of the applicant that preference should have been given to Respondent No. 3 Shri Dhurde according to rules and that through oversight it was not done and Shri Sanjay Vasantrao Hage was given appointment. It is stated in the last paragraph that in view of this appointment through oversight, the services of the applicant are being terminated.
13. It is a well settled principle laid down by the Hon'ble Supreme Court in the matter of Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851, that validity of an order made by a statutory functionary must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavits and otherwise. Thus, other grounds and explanations sought to be made in the Written Statement by respondents would need to be viewed in the light of this important ruling. In any case, the evidence available indicates that the appointment of the applicant was certainly not a stop gap arrangement, but a regular arrangement. To give one example it is admitted in the Written Statement that the Applicant was selected because of higher marks in the school leaving examination. Thus, we can conclude that the appointment of the Applicant was a regular appointment.
14. Now having come to this conclusion, we find that the first error, in terms of well settled law in several cases, is that the principles of natural justice were flouted, in that no show cause notice was ever provided. In any case, since we have a written reply before us and all defences of Respondents are now available to the applicant, we therefore, go into the merits of the case vis-a-vis defence taken etc.
15. One of the stands taken by the Respondents relates to the Rule 6 of the Extra Departmental Conduct and Service Rules. We have carefully seen this rule and the extracts filed by the applicant with this O.A. at pages 9 to 11 of the Paper Book. The background of the Rule 6 have also to be taken into consideration. If the rule is to be read merely mechanically, as it exists now, after amendment, then anybodys services can be terminated without assigning any reason at the complete free will of the respondents, provided he has not completed 3 years. Such a mechanical reading would be an anethema to law. It is obvious that reasons will need to be gone into. And that also means that opportunity will need to be provided.
16. We now go to the other defences taken in the detailed Written Statement filed by the respondents. Support is taken from the instructions issued by the Govt. through its letters dated 12.9.1988, and 28.8.1996 copies of which are appended by the respondents with their Written Statement (Rule 1 to Rule 3 i.e. at pages 27 to 31 of the Paper Book). We have carefully gone through these and find that they do not support the case of the respondents. In the clarification dated 27.8.1996, the preference to be given to ED Agents relates to higher marks in matriculation and here clearly it is the applicant who has secured the higher marks, admittedly. The preference envisaged to be given to seniors are meant for regular ED Agents working in the same grade. In any case, if any preference was allowable as per instructions, the important point is it could have been considered at the time when a conscious process of selection was undertaken where Rule 3 was also considered. The action of the Respondents in waking up several months later and disturbing a decision already taken in the normal course amounts to injustice in the facts and circumstances of this case. We do not wish to elaborate to this point of perference because of the notice we take of a Full Bench judgment of this Tribunal made on 20.4.2000 in the matter of D.M. Nagesh and Ors. v. Asst. Superintendent of Post Office, Bangalore and Ors., 2000(2) ATJ 259. It has been decided inter alia that in the matter of Extra Departmental Agents, previous experience earned by a candidate due to his work as probationer ED Agent cannot be given weightage at the time of regular selection. Now, the present process of selection in the post of BPM was a separate and distinct process of selection because Rule 3 was not working as a BPM. Hence this Full Bench judgment is relevant and applies to the present case.
17. We also note the relevance and applicability of the judgment made by the Allahabad Bench of the Tribunal in the matter of Surya Bhan Gupta v. UOI (supra), the Head Note of the same reads as under:
"Termination--Cancellation of erroneous appointment--Petitioner appointed Extra Departmental Delivery Agent through Employment Echange --Another candidate challenging his appointment on the ground that he had submitted application to the Employment Officer in time but it reached the concerned Sub-Divisional Inspector after the closing date--Petitioner's appointed cancelled--Held, the appointment was made by the competent authority and was according to rules--Omission to consider the other candidate did not render it void--It was at the post voidable--It could not be cancelled without affording opportunity was necessary even if possibility of change in decision was very less--Further held, where appointment is made by the competent authority according to rules, mere mention of its being provisional does not really make it provisional P & T Extra Departmental Agents (Conduct and Service) Rules 1964 Rule 6--DGP & T letter No. 10/ 1/82-Vig III, dated 13.4.1983 appointment--Cancellation--Natural justice."
It has been decided that even an omission to consider the other candidate did not render an appointment as void. In the present case the other candidate was indeed considered also with others. The impugned decision that is now being taken comes several months after the original decision, and as a change due to a "mistake". Merely stating that it was a mistake, under the circumstances, appears is to be a highly arbitrary and illegal view on the part of the Respondents. It prejudices the rights of the applicant, who was appointed after due process.
18. We are, therefore, convinced that the impugned order will need to be quashed, being illegal and arbitrary, and relief provided to the Applicant. We do note that the Applicant has been discontinued from service w.e.f. one month after the date of impugned order i.e. w.e.f. 2.6.1997 and is out of service since then. One point that will need to be decided is as to what amount (arrears) will be liable to be paid to the applicant for the period between his discontinuation and reinstatement.
19. Under the facts and circumstances of the case, we allow this O.A., in terms of the following Orders:-
(a) The impugned order dated 2.5.1997 is hereby quashed and set aside. (b) It is ordered that the Applicant shall be taken reinstated on duty as EDBPM, forthwith, but not later than within one month from the date of receipt of a copy of this order. (c) The applicant shall be deemed to be in service throughout right from the date of his appointment for all purposes, such as benefits of continuous service, pensionary benefits etc., except in the matter of payment of arrears of payment of pay and allowances, which shall be regulated as follows:
50% of the Pay and Allowances due shall be paid to applicant from the period from his date of termination till the period of reinstatement. (No interest will be payable) Such arrears shall be paid within 3 months from the date of receipt of a copy of this Order.
(d) There will be no order as to costs.