Central Administrative Tribunal - Allahabad
Devesh Kumar Mishra vs M/O Telecommun Ication on 19 July, 2024
(Reserved on 12.07.2024)
Central Administrative Tribunal, Allahabad Bench
Allahabad
****
Original Application No. 330/00691/2012
Pronounced on 19th day of July, 2024.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Devesh Kumar Mishra S/o Jagdish Kumar Mishra, R/o Village and
Post Dhanyora, District Shahjahanpur.
............Applicant
By Advocate: Sri Ashish Srivastava
Versus
1. Union of India through Secretary, Ministry of Post and
Telecommunication, Dak Bhawan, New Delhi.
2. Superintendent of Post Offices, Shahjahanpur.
3. Assistant Superintendent of Post Offices, (Central Sub
Division), Shahjahanpur 242001.
4. Amlendra Shekhar Singh, S/o Shashank Shekhar Singh, R/o
Village and Post Dhanaura, District Shahjahanpur.
Respondents
By Advocate: Sri R.K. Srivastava/Shri Dharemdra Tiwari
ORDER
By Hon'ble Mr. Justice Om Prakash VII, Member (J) This O.A. has been filed by the applicant under section 19 of the AT Act, with the following reliefs:-
i) This Hon'ble Tribunal may be pleased to quash the impugned order NO.
A/GDS/Rectt. Dhanyoura/2011-12 dated 23.04.2012 issued by respondent NO.3 whereby respondent No.4 has been appointed as GDS BPM Dhany ora Via Tilhar, Shahjahanpur.
ii) This Hon'ble Tribunal may be pleased to issue direction to the respondents to finalize the selection as per the merit of the High School Examination MANISH KUMAR SRIVASTAVA Page 1 of 8 and offer appointment to the applicant being scorer of the highest marks in the same.
iii) Any other relief which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case may be given in favour of the applicant.
iv) Award the costs of the original application in favour of the applicant".
2. The brief facts of the case are that as per notification issued by the respondents for appointment to the post of GDS BPM Branch Post Office Dhanyora, District Shahjahanpur, applicant submitted his application in the prescribed format on 17.2.2012. He has annexed all relevant documents with his application form. According to Gramin Dak Sevak Rules, appointment has to be made on the basis of merit of High School qualification. Since applicant was possessing highest marks in the High School Examination, he had legitimate expectation to appoint him on that post but respondents appointed the respondent No. 4 as GDS BPM Dhanyora. Aggrieved against the aforesaid action of the respondents, applicant sought information under RTI Act but he has not received information. As applicant did not receive information, which was sought through RTI Act, he filed appeal before the Post Master General, Bareilly Region, Bareilly. In pursuance of appointment letter dated 23.04.2012, Respondent No. 4 joined the post of GDS BPM Branch Post Office Dhanyora, District Shahjahanpur post. Aggrieved against the appointment of respondent No. 4, applicant filed present original application.
3. In the counter affidavit filed on behalf of official respondents, it has been stated that the vacancy of GDS BPM Dhaneora occurred due to retirement of Shri Rajendra Pal Singh from the aforesaid post. After seeking approval of competent authority, notification was issued to fill up the said post on regular basis. In pursuance of aforesaid notification, nine applications were received for the said posts. As per comparative chart showing the particulars of the candidates for the appointments of GDSBPM Shri Amlendu Shekhar Singh son of Shri Shashank Shekhar Singh, VPO-Dhaneora, Shahjahanpur was found no. 1 position in merit. As the selected candidate Shri Amlendu Shakhar Singh S/o Sri Shashank Shekhar Singh, VPO- Dhaneora, MANISH KUMAR SRIVASTAVA Page 2 of 8 Shahjahanpur had fulfilled all the requisite qualification/condition for the post of GDSBPM Dhaneora, hence the respondent No.4 has been appointed vide office memo No. A/GDS/Rectt. Dhaneora/11-12 dated 23.04.2012.
4. In the counter affidavit filed on behalf of respondent No.4, it has been stated that respondent No.4 passed Purva Madhyma, which is equivalent to High School Examination and got 327 marks out of 500 marks (65.4%) in the said examination whereas the applicant secured only 64.33% marks in the High School Examination. Therefore, being lower in merit, the applicant was not considered for appointment on the post of GDS BPM Dhanuara and respondent No.4 has been appointed as he has secured more marks than the applicant.
5. In the rejoinder affidavit, the applicant reiterated the averments made in the O.A and further stated that as per information received from Principal, Sarswati Vidya Mandir Inter College, respondent No. 4 was regularly studying in the college in the year 2007-2008. He appeared in the High School Examination but he failed in the High School examination. He cleared the High School examination as regular student in next year and got only 321 marks out of 600. Thus, respondent No.4 was not entitled to be offered for aforesaid post, hence, appointment of respondent No. 5 may be cancelled and in its place applicant may be offered as applicant's marks in High School examination was more than respondent No. 4.
6. We have heard Shri Ashish Srivastava, learned counsel for the applicant, Shri R.K. Srivastava, learned counsel for the official respondents and Shri Dharmendra Tiwari, learned counsel for the private respondent and perused the record.
7. Learned counsel for the applicant argued that in response to the notification issued by the Postal Department for appointment to the post of GDS BPM Branch Post Office Dhanyora, District Shahjahanpur, the applicant applied in the prescribed format alongwith other necessary documents as well as testimonials. Learned counsel MANISH KUMAR SRIVASTAVA Page 3 of 8 for the applicant further argued that as per the notification, the merit list was prepared for appointment on the post in question on the basis of marks obtained in High School. Learned counsel for the applicant also argued that as the applicant having highest marks in High School examination was overlooked for the appointment. He made an application under RTI Act. When he has not received information, he filed appeal before the Post Master General, Bareilly Region, Bareilly but respondents did not bother the request of the applicant. Respondents issued appointment letter in favour of the respondent No.4 which is illegal.
8. Learned counsel for the applicant further contended that respondent No. 4 appeared in the High School examination conducted by U.P Board held in the academic session 2007-2008. When respondent No.4 failed in the aforesaid examination, in the same academic year i.e. 2007-2008, respondent No. 4 appeared in the Purv Madhyama examination and succeeded in the said examination, which has been verified by the Principal, Savitri Devi S.M.V Shahjahanpur. As per UGC letter dated 15th January, 2016, the students are not allowed to pursue two degree simultaneously in the same academic year but in the present case, the respondent No.4 has completed both High School and Purv Madhyma in regular mode simultaneously which is not allowed under the rules. The conduct of the respondents shows that he is taking advantage of both the qualification i.e. High School and Purv Madhyma for the same posts, which is not permissible under the law. Learned counsel for the applicant lastly contended that the appointment of respondent No. 4 is totally illegal and dehors the rules. Thus, respondents may be directed to cancel the appointment of respondent No. 4 and in its place applicant may be appointed.
9. In rebuttal, learned counsel for the official respondents submitted that to fill up the post of GDS BPM Branch Post Office Dhanyora, District Shahjahanpur, the respondents published a MANISH KUMAR SRIVASTAVA Page 4 of 8 notification and after completing formalities respondent No.4, who was found most suitable and meritorious, had been appointed on the post vide order dated 23.04.2012. Learned counsel for the respondents further submitted that respondent No. 4 got more marks than the applicant in the High School examination. The details of nine meritorious candidates on the basis of marks obtained in High School Examination disclosed in the pleading are as under:-
S. Name of candidate Communi Local Date of birth Educational Remarks N ty or non qualification i.e. o. local % in High School 1 Sri Amlendushekhar OC Local 15.09.1993 High School Singh 65.4% 2 Shri Devesh Kumar OC Local 15.06.1993 High School Mishra 64.33%
3. Shri Vikash Sharma OC Local 04.07.1990 High School 60%
4. Shri Mahendra OC Local 05.05.1978 High School Kumar Singh 41.5%
5. Shri Prince OC Local 17.08.1991 High School 39.30%
6. Sri Surjit OC Local 01.06.1988 High School 38.89%
7. Shri Govind Kumar OC Non- 10.07.1993 High School local 38.80%
8. Shri Surendra Singh OC Non 05.06.1969 High School local 38.00%
9. Shri Pawan Singh OC Non 15.04.1990 High School Local 36.50% Thus, in view of comparative chart showing marks obtained by the candidates in their High School it reveals that Amlendushekhar Singh (respondent No.4) has got highest marks in comparison to other candidates.
10. Learned counsel for the respondent No.4 argued that it is wrongly stated in the OA that applicant was most meritorious candidate in the merit list. Contrary to this from the perusal of comparative chart, respondent No. 4 has got more marks in comparison to the applicant. It is also argued that respondent No. 4 was appointed on the basis of marks obtained in the Purva Madhyma examination, which was equivalent to High School. Thus, the claim of the applicant has no leg to stand and the OA is liable to be dismissed.
MANISH KUMAR SRIVASTAVA Page 5 of 8
11. We have considered the rival submissions and have gone through the entire record carefully.
12. From the perusal of comparative chart issued by the respondents wherein percentage of High School examination has been mentioned, it is clearly reflects that respondent No. 4 has got more marks than the applicant, thus, the plea taken by the applicant regarding highest marks obtained in the High School examination in comparison to other candidates is not sustainable and is liable to be rejected. Course completed by the respondent No. 4 is equivalent to High School examination. Nothing was brought on record by the applicant to establish that Marksheet submitted by the respondent No. 4 was forged or fake.
13. So far as plea taken by the applicant regarding persuasion of two degree simultaneously in the same academic year are concerned, it is admitted fact that applicant had undertaken High School and Purva Madhyma examination simultaneously. The matter which is to be decided whether two degrees/course simultaneously are permissible or not and offer of appointment on this ground can be cancelled or not.
14. In the case of Laxmi Shankar Yadav Vs. State of U.P. and others (Writ A No. 5394 of 2021) decided on 14.9.2021 by the Hon'ble Allahabad High Court, it has been held that:-
"Thus, after discussing the entire material, I have no hesitation in holding that there is no bar created for a student in pursuing two degree simultaneously so as to dis-entitle him from appearing in the examination in question. Further more the circular dated 18.01.2021 cannot in any way alter the requirement of eligibility criteria retrospectively. Thus, the order based upon the circular dated 18.01.2021 is clearly not sustainable and is set aside.
Consequently, the respondents are directed to permit the petitioner to discharge his duties on the post, on which the petitioner was appointed, and the petitioner shall also be entitled to payment of his salary on month to month basis. The petitioner shall, however, not be entitled for salary from 02.03.2021 up to the date of this order on the basis of no work no pay.
MANISH KUMAR SRIVASTAVA Page 6 of 8 Accordingly, the writ petition is allowed in part."
15. In the case of The Basic Education Board U.P. Prayagraj and another Vs. Laxmi Shankar Yadav (Special Appeal No. 37 of 2022) decided on 19.11.2022 by Hon'ble Allahabad High Court, it has been held that:-
"10. Having perused the record and considered the rival submissions, we may observe that no doubt it may appear improbable as to how a person could obtain two degrees simultaneously but that cannot be taken as a ground to annul both the degrees. There has to be an exercise to annul either one or both the degrees on the basis of material collected, after giving opportunity of hearing to the holder of such a degree. Such an exercise has to be on case to case basis. Here, what is important is that neither the B.A. degree obtained from Awadh University, Faizabad, nor the Shastri degree obtained from Sampurnanand Sanskrit Vishwavidyalaya, has been cancelled. Importantly, the petitioner had soughtappointment by relying on the Shastri degree and on the basis of the marks obtained therein the petitioner was placed in the select list and was ultimately selected and appointed. At this stage, it be noticed that the learned single Judge has returned a specific finding that the opposite party counsel could not place any regulation/ statutory enactment or even an order having statutory flavour to demonstrate that obtaining of two degrees simultaneously is prohibited. The learned standing counsel despite our request could not demonstrate that the said finding is incorrect. The U.G.C. clarificatory letter dated 15th January, 2016 on which the appellant has placed reliance only deprecates obtaining of two degrees simultaneously, but it does not mandate the University to annul the degree so obtained. In so far the clarificatory letter dated 4th December, 2020 is concerned that also does not mandate the authorities to cancel the candidature of a candidate who has set up such degrees but requires a case to case examination. In the instant case, the petitioner has set up Shastri degree obtained from Sampurnanand Sanskrit Vishwavidyalaya, Varanasi for the purposes of selection in the recruitment process undertaken by the appellants. This degree has admittedly not been cancelled. In our view, therefore, unless the professed qualification is annulled or is found in the teeth of statutory regulation or order, rendering the same ineffective or null, it would not be permissible to overlook or discard the same.
11. For the reasons above, we do not find a good ground to interfere with the impugned judgement and order of the learned Single Judge. The appeal is dismissed."
MANISH KUMAR SRIVASTAVA Page 7 of 8
16. While deciding Laxmi Shankar Yadav (supra) case, Hon'ble High Court of Allahabad in special appeal has considered the judgment passed by the Hon'ble Supreme Court in the case of Kuldeep Kumar Pathak Vs. State of U.P. and others 2016 (3) SCC 521 wherein the Hon'ble Supreme Court confronted with the issue of any bar in any statute prohibiting the appearance of a person in the classroom examination of two different boards of the same year and has held that once there was no prohibition contained in obtaining a person two degree simultaneously, any action based upon the said fact is bad in law.
17. It is pertinent to mention here that applicant was not able to establish the fact that there was any prohibition to appear in examination of Purva Madhyma simultaneously with High School examination issued by the Board/ Institution who has issued Purva Madhyma certificate.
18. Considering the facts and circumstances of the case and in the light of the judgment passed by the Hon'ble Supreme Court as well as by the Hon'ble High Court, we are of the opinion that prayer of the applicant for cancelling the appointment of the respondent No. 4 on the post of GDS BPM Branch Post Office Dhanyora, District Shahjahanpur is not tenable in the eyes of law, thus O.A. is liable to be dismissed. Accordingly, the OA is dismissed. No order as to costs. All associated MAs are disposed of.
(Mohan Pyare) (Justice Om Prakash-VII)
Member (A) Member (J)
Manish
MANISH KUMAR
SRIVASTAVA Page 8 of 8