Central Administrative Tribunal - Allahabad
Ajay Kumar Pal vs D/O Post on 9 September, 2024
(Reserved on 28.08.2024)
Central Administrative Tribunal, Allahabad Bench, Allahabad
This the 9th day of September, 2024
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Original Application No. 764 of 2020
Ajay Kumar Pal aged about 28 years, S/o Ram Pal R/o
Hatagambhirpur Post - Surar District - Kanpur Nagar.
........... APPLICANT
By Advocate: Shri Avnish Tripathi
Versus
1. Union of India through Secretary, Ministry of Communication
Dak Bhawan, Sansad Marg, New Delhi - 110001.
2. Director General of Post, Ministry of Communication, Dak
Bhawan, Sansad Marg, New Delhi - 110001.
3. Chief Post Master General U.P. Circle Hazratganj Lucknow.
4. Post Master General Kanpur Region Kanpur.
5. Director, Postal Services Kanpur Region Kanpur.
6. Superintendent of Post Offices (M) Kanpur Division, Kanpur.
..........RESPONDENTS
By Advocate: Shri Chakrapani Vatsyayan
ORDER
(Delivered by Hon'ble Mr. Justice Om Prakash VII, Member (J) Shri Avnish Tripathi, learned counsel for the applicant and Shri Chakrapani Vatsyayan, learned counsel for the respondents, were present at the time of hearing.
2. The instant original application has been filed by the applicant seeking following relief:
"i. To issue an order, rule or direction for quashing and setting-aside the impugned notice dated 22.08.2019
1|Page issued by the respondent no. 5 by which the respondent no. 5 have proposed to review the appointment of the applicant and terminate the appointment of the applicant which was made by the competent appointing authority after adopting the due process of selection on the post of GDS BPM, Radhan (Uttaripura) Kanpur Dehat (Annexure A-1 in compilation no- I to this original application).
ii. To issue an order, rule or direction for quashing and setting aside the impugned order dated 27.01.2020 passed by the respondent no. 5, by which the respondent no. 5 has reviewed and cancelled appointment of the applicant from the post of GDS BPM, Radhan (Uttaripura) Kanpur Dehat (Annexure A-2 in compilation No. I to this original application) iii. To issue an order rule or direction directing the respondents to allow the applicant to work on the said post of GDS BPM Radhan (Uttaripura) and pay the monthly salary as and when due.
iv. To issue an order rule or direction, which this Hon'ble Tribunal may deem fit and proper under the facts and circumstances of the case to which the applicant may be found entitled under law.
v. To award the cost of the original application may also be awarded in favour of the applicant."
3. A synopsis of the controversy prevailing in the instant case is that the applicant is disgruntled with his termination from the post of GDS BPM. He is aggrieved from the impugned notice dated 22.08.2019 by which his appointment was reviewed and attributed as irregular. Applicant has contended that respondents completely ignored his continuous service of more than five years and illegally by citing the provisions of Rule 4 (3) (c) of Gramin Dak Sewak
2|Page (Conduct & Engagement) Rules, 2011, they have terminated his engagement vide order dated 27.01.2020. Applicant has alleged violations of several stipulated rules on the part of the respondents claiming that an incompetent authority with a premeditated approach has reviewed / cancelled his appointment that too after the expiry of limitation period under which the review was liable to have been done.
Applicant has alleged that the impugned notice as well as the impugned termination order is absolutely illegal and unjustified as his appointment was done after he was found suitable by the selection committee of the respondents and to secure appointment, he did not commit any fraud nor did he submit any false information which may warrant his termination from service. This case has a chequered history and the instant OA falls under the second round of litigation. Earlier also, vide order dated 17.05.2016, the services of the applicant were reviewed and terminated by the department without issuing any show cause notice or affording any opportunity of hearing subsequent to which the applicant had approached before this Tribunal vide OA No. 924 of 2016. Vide its judgment dated 17.05.2019, the Tribunal allowed the case of the applicant in favour of the applicant. It is pertinent to record that judgment dated 17.05.2019 was passed placing reliance on the judgment dated 30.04.2018 passed by the Hon'ble High Court of Allahabad in Writ Petition No. 56986 of 2017 titled Union of India and Others Vs. Ajay Kumar Agarwal and others wherein a bunch of cases pertaining to similarly situated persons was decided and respondents were directed to reinstate the applicant along with all consequential benefits. However, respondents were also given the liberty to carry out the exercise of reviewing the services of the applicant but a decision in that regard only to be taken after issuing show cause notice to the applicant along with affording him adequate opportunity of hearing. Accordingly, this time, the services of the applicant were reviewed and subsequently terminated but after issuing show cause notice and granting him opportunity of hearing. However, the applicant's
3|Page contention is that his termination is illegal, arbitrary and in stark violation of respondents' own rules and regulations and also violates several ratios laid down by different judicial forums across the country in their respective judgments.
By way of the instant original application, the applicant seeks quashing of the impugned notice dated 22.08.2019 issued by respondent no. 5 by which review of the applicant's engagement was proposed and impugned termination order dated 27.01.2020 issued by the respondent no. 5 whereby applicant's services were terminated. Applicant has also sought a direction to the respondents to reinstate him on the post of GDS BPM on the same place where he was working earlier and pay the consequential benefits.
4. We have heard the learned counsels for the parties and gone through the records.
5. Disclosing a brief history of the case, learned counsel for the applicant submitted that the respondent no. 6 issued a notification dated 03.09.2012 for appointment to the vacant post of Gramin Dak Sewak (Branch Post Master) in the Laloo Kanpur Dehat region in view of the directions dated 01.08.2012 issued by the respondent no.
5. Being eligible on all fronts, the applicant submitted his application and amongst three candidates, he emerged at the top of merit list so much so that he was issued the proposal letter dated 05.03.2013 of appointment to which he submitted his consent. Being the most meritorious amongst all the candidates and also upon verification of all the certificates like educational, character antecedent and medical by the competent authority of the respondents, the engagement of the applicant was done by the respondent no. 6 vide memo dated 11.10.2013 and the respondent no. 5 after completing all the formalities required under the rules, allowed the applicant to join on the said post on 06.11.2013.
6. Learned counsel for the applicant further submitted that in what came as bolt from the blue to the applicant, the respondent no. 4, all of the sudden, reviewed the engagement of the applicant and
4|Page the respondent no. 6, vide memo dated 17.05.2016, cancelled his appointment without issuing any show cause notice to him or affording any opportunity of hearing. Being aggrieved, the applicant approached before the Tribunal through OA No. 924 of 2016 which was decided on 17.05.2019 in favour of the applicant along with a direction to the respondents to reinstate the applicant thereby granting him all the consequential benefits. In compliance of the said directions which was given placing reliance on the judgment dated 30.04.2018 passed by the Hon'ble High Court of Allahabad in Writ Petition No. 56986 of 2017, the applicant was reinstated vide order dated 25.06.2019 and the charge was handed over to him on 01.07.2019. Learned counsel further argued that the respondent no. 5, treating himself as Reviewing Authority, issued notice dated 22.08.2019 under Rule 4(3)(c) of the GDS (Conduct and Engagement) Rules, 2011 to the applicant signifying that the engagement of the applicant is being reviewed to which the applicant was directed to submit his reply. Learned counsel argued that despite repeated requests, no documents whatsoever were provided in support of the aforesaid Notice nor was the applicant ever allowed to peruse his Review file, which may clarify as to what led to the respondents to initiate a review of the applicant's engagement and what irregularities were surfaced. Learned counsel further argued that it was required on the part of the respondent no. 5 that he had mentioned in the notice that why the irregular appointment may not be cancelled but instead mentioning the same, he had just mentioned that why the irregular appointment may not be terminated. The respondent no. 5 had mentioned in the notice that why the irregular appointment may not be terminated but in the impugned termination order dated 27.01.2020, the respondents had passed the order for cancelling the appointment of the applicant though the word termination is always used when the services are terminated and the appointment can never be terminated.
7. Learned counsel for the applicant further submitted that the applicant had already completed more than five years of satisfactory
5|Page service at the time of issuance of the show cause notice and already, his appointment was reviewed twice. As per the stipulated rules, there is no provision to constitute the review committee twice and as per the DG instructions dated 25.06.2010, the review can only be made within one year from the date of appointment. The validity of selection was required to be examined before the actual appointment order was issued and not the power to be exercised after the appointment order was issued. It was also argued that the reply / representation dated 24.09.2019 / 17.12.2019 given by the applicant against the show cause notice dated 22.08.2019 was not reasonably considered by the respondents as they had premeditated to impose the punishment upon the applicant and thus, any reply or representation on the part of the applicant was immaterial to them.
8. Learned counsel for the applicant further argued that in the second column of the notice dated 22.08.2019, a reference to Rule 6(5)(4) of the GDS rules has been given despite the fact that the applicant's appointment was not made in accordance with those rules. The appointment was liable to be made in view of the marks scored in the High School and the same was done and thus no illegality can be attributed to that. The respondents have no power to change / alter or aid a new condition of appointment other than what has been stipulated in the statutes. Respondents have recorded that applicant's appointment was cancelled as he was placed below in merit than 4 candidates. This is a wrong observation as the candidature of the candidates placed at Sl No. 2,3 and 4 got rejected for the reason that they got appointed in another branch office as GDS BPM and the candidature of the candidate placed at sl no. 1 got rejected for certain reasons so much so that he was not fulfilling the requisite eligibility criteria. Thus, it came down to three candidates in which the applicant was found top in merit position along with fulfilling every eligibility condition and accordingly, he was considered for the engagement. Learned counsel further argued that grave injustice has been done against the applicant as the show cause notice dated 22.08.2019 was issued with premeditation. Secondly, it
6|Page was issued by an incompetent authority and thirdly, it was issued not only without following the mandatory provisions and rules but also violating several others. Learned counsel further argued that the action of the respondents is also in grave violation of the Article 14 and Article 21 of the Constitution of India. Learned counsel further argued that the rule concerned under which the review was made stipulates that if the reviewing authority want to take any action against the appointing authority regarding irregular appointment, the appointing authority must be heard and only thereafter the higher authority may taken any action against the appointing authority. Therefore, the notice issued by the respondent no. 5 for terminating the irregular appointment of the applicant and thereafter canceling the appointment of the applicant by applying the said rule is uncalled for and unacceptable. Learned counsel further argued that even if for a moment it is assumed that the appointing authority has erred in conducting the engagement of the applicant, since he was engaged after undergoing all the prescribed procedures, and especially after he has rendered a service of more than five years, he must not be disengaged arbitrarily and he must not be made the scapegoat for someone else's wrongdoing. Thus, prayer was made to allow the OA thereby directing the respondents to reinstate the applicant in service thereby granting him all the consequential benefits.
9. Learned counsel for the respondents has vehemently opposed the prayer of the applicant and by way of his counter, he argued that several complaints were received in the respondents' department regarding various irregularities that took place in the engagement of the applicant and many other similarly situated candidates and therefore review of the engagement was done in accordance with the prescribed rules. When the applicant was terminated initially, his services were less than three years from the date of engagement and thus, it was bound to be terminated at any time by simply giving a notice in writing. When the applicant challenged his termination before the Tribunal and later the case went up to the level of High Court, in compliance of the directions issued by the court(s), he was
7|Page reinstated but the respondents were at liberty to pass fresh orders. Accordingly, after issuing show cause notice, seeking his reply on the same, and affording him the opportunity of hearing, subsequent to the issuance of show cause notice dated 22.08.2019, his services were terminated on 27.01.2020 consequent to which he was relieved later. Learned counsel further argued that the case of the applicant holds no merit as his appointment was irregular and made ignoring other meritorious candidates who were placed ahead of the applicant in the merit list. Wherever and whenever it is found that a government servant, who was not qualified or eligible in terms of the recruitment rules, etc. for initial recruitment in service or had furnished false information or produced a false certificate in order to secure appointment, he should not be retained in service. If he is a probationer or a temporary govt. servant, he should be discharged or his services should be terminated. Therefore, no illegality or infirmity can be attributed to the act of the respondents. In this regard, learned counsel referred to the case of State of Orissa and another Vs Mamta Mohanty reported in (2011) 3 SCC 436 submitting that in that judgment, the Hon'ble Court held that if an order of appointment itself was illegal at the time of initial appointment, the same cannot be sanctified at a later stage. It was further argued that no refuge can be taken to Article 311 of the Constitution of India when it has already been established that the appointment of the applicant was illegal and irregular.
10. Learned counsel for the respondents further argued that the version of the applicant that his appointment has been reviewed two / three times is absolutely false and baseless. More than 132 engagements made across several GDS posts were to be reviewed for which several officers were appointed. A committee was formed to investigate the matter and only on the recommendations of the aforesaid committee, the engagement of many GDS BPM(s) including the applicant was reviewed and cancelled and therefore no discriminatory treatment has been conferred upon the applicant nor was there any malafide against him. Further, as per Rule 4(3) (c) of
8|Page GDS (Conduct and Engagement) Rules, 2011, there is no time limit fixed for calling record of engagement / appointment and pass appropriate order after giving reasonable opportunity. As far as the case of the applicant is concerned, he was placed at sl no. 5 in the tabulation chart and his appointment was done ignoring the candidature of the candidates who were placed at the top 4 positions. Thus, the version of the applicant that he was top in the merit list amongst the contesting candidates is simply baseless and unjustified. Further, respondents' counsel argued that the contention of the applicant's counsel that although a show cause notice was issued to the applicant, the punishment was already premeditated is absolutely false as the procedure prescribed was undertaken to issue show cause notice in which the irregularity surfaced with regard to the engagement of the applicant was vividly elucidated and there was no hidden exercise. Thus, referring to the entire facts and circumstances of the case, prayer was made to dismiss the OA thereby keeping the effect and operation of the termination order dated 27.01.2020 intact.
11. Rejoinder has been filed by the applicant counsel rebutting the contentions of the respondents as mentioned in the counter.
12. We have considered the rival contentions and gone through the documents on records.
13. As the facts of the case have already been narrated above in detail, the same are not reiterated for the sake of brevity. The limited controversy which is required to be deliberated upon is whether the impugned termination order dated 27.01.2020 that was issued subsequent to the show cause notice dated 22.08.2019 is legal or not. Applicant has contended that since his selection was made by the selection committee of the respondents after undergoing the procedure, the termination at such a belated stage simply on the ground of review and without affording any cogent reasons, is uncalled for. Respondents, on the other hand, have averred that upon review, several irregularities related to the manner in which the applicant was appointed had surfaced and therefore, in accordance
9|Page with the stipulated departmental provisions, the said appointment was terminated.
14. This case has a chequered history and the sequence of events has already been discussed above chronologically. The applicant was initially terminated in the year 2016 subsequent to which he approached before this Tribunal vide OA No. 924 of 2016. While deciding the above case, the Tribunal had meticulously dealt with the scope of Rule 4 (3) (c) and Rule 8 (2) of GDS (Conduct and Engagement) Rules, 2011. For better deliberation, the same is reproduced herein below:
13. In view of the findings of this Tribunal and Hon'ble High Court as discussed above, it was appropriate on the part of the respondents to initiate action against the applicant under the Rule 4 (3) of the GDS (Conduct and Engagement) Rules, 2011, if the authorities have noticed irregularities in the appointment of the applicant as GDS. The action to terminate services of the applicant under Rule-8 (2) of the GDS (Conduct and Engagement) Rules, 2011 cannot be taken in these circumstances in view of the observations of Hon'ble Allahabad High Court as discussed above. For the same reasons, the impugned order cannot be treated as termination simplicitor.
14. In view of the above, we are of the considered view that the facts of this OA are similar to the facts dealt in OA No. 742 of 2016 in the case of Birbal Vs Union of India & others clubbed with other OAs with similar facts and the applicant is entitled for similar benefit as per the order dated 14.07.2017 of the Tribunal and the order dated 30.04.2018 of Hon'ble Allahabad High Court.
15. Accordingly, the impugned orders dated 06.05.2016 is quashed and set aside and the respondents are directed to reinstate the applicant to his post with all consequential benefits i.e., full TRCA for the period he has been kept out of service because of the impugned order. In case, his place has been filled up by another person, then the applicant should be accommodated in any other vacant post of GDS. This order should be complied within a period of six weeks from the date of receipt of certified copy of this order. The liberty is granted to the respondents to proceed against the applicant under the Rule 4(3) of the GDS (Conduct and Engagement) Rules, 2011 in the light of the order dated 30.04.2018 passed by Hon'ble Allahabad High Court in view of allegations of serious irregularities alleged in the process of the applicant's recruitment. It is directed that necessary orders for reinstatement be issued accordingly. Arrears of TRCA be disbursed within two months from the date of reinstatement. Liberty is given to the respondents to proceed against the applicant in case he is falling under category (1) and (2) above.
16. The OA is allowed with the above directions. There will be no orders as to cost."
It is pertinent to record that the aforesaid judgment was passed placing reliance on the judgment dated 30.04.2017 passed by the Tribunal in OA No. 742 of 2016 titled Birbal Vs Union of India and 10 | P a g e others and connected matters which was a bunch of cases pertaining to similarly situated persons and a mention of the same was also made in the aforesaid judgment. In the said judgment, following observations were recorded by the Tribunal:
"24. Now the second point to be dealt in is whether the termination resorted to has been on the basis of any act/omission to act either by the applicants or by the respondents anterior or posterior to selection. This is necessary to ascertain as to which of the provisions of the Rule shall apply (a) Rule 4(3) or Rule 8(2) of the 2011 Rules. If in the garb of Rule 8(2) of the GDS (Conduct and Engagement) Rules 2011 the services of the applicant were terminated at any point of time without giving any notice but the respondents while narrating the background of the case leading to termination bring out the fact that it was on the basis a review conducted either at the behest of any superior authority, then the case falls under the category of pre-recruitment irregularity and provisions of Rule 4(3)(c) spring in to play in which event, as mandated therein, the individuals were to put to due notice, which obviously and admittedly has not taken place.
25. If the termination be not falling under 4(3)(c) but coming under Rule 8(2) i.e. post recruitment category, here again, not all the post recruitment category would come under the parameter of Rule 8(2). It is only where it is on administrative grounds or unsatisfactory, that Rule 8(2) could be pressed into service. If the termination happens to be on any ground which may be connected with the conduct (post recruitment) then it becomes a case falling under the provisions relating to Disciplinary Proceedings.
26. Thus three categories of cases would arise in the bunch of cases:-
(a) Where as a result of review conducted at the behest of the superior authority, termination took place in which event show cause notice becomes a pre- requisite.
(b) Where termination is as a result of certain misconduct on the part of the individual. (touching his conduct, including production of false or forged documents etc.,) procedure for imposing penalty has to be followed as it becomes a case of alleged misconduct.
OM dated 19th April, 1979 is specific in This regard.
(c) Where termination is resorted to within three years on account of unsatisfactory service or for administrative reasons, it is only in such a contingency that Rule 8(2) of the Rules is pressed into service.
Existence of power is one thing; exercise of that power is another. Rule 8(2) of the Rules affords power for termination. When it comes to the question of invoking that power, the same should be strictly in accordance with the provisions of the Rules. The Rules 11 | P a g e contemplate two contingencies (a) unsatisfactory work; and (b) administrative reasons.
Of these, unsatisfactory work could well be watched very closely and if the work of the GDS is not upto the mark, despite sufficient warning, and if the total period of service is not more than three years, his services could be terminated. This is in the interest of the institution as those who are inefficient, insouciant or are dead wood are at the appropriate time to be weeded out.
The next one is administrative reason. What is administrative reason as referred to in the order dated 13-04-1983 (which is still in vogue) has not been defined or explained. Of course, certainly it is a matter of discretion of the Government and as held by the Apex Court in the case of Gopal Chaturvedi vs State of MP (1969) 2 SCC 240, "It is impossible to define before-hand the circumstances in which the discretion can be exercised. The discretion was necessarily left to the Government."
This then takes us to the definition of the term "discretion." Discretion is a right to act according to one's own judgment and as held in the case of Ramji Dayawala and sons (Pvt) Ltd., vs Invest import (1981)1 SCC 80, it must not be arbitrary, fanciful and vague but must be legal and regular. It is not inconceivable to itemize certain administrative reasons. For example, when the post of GDS being one relating to quantum of work and time related, if the work load sufficiently varies, warranting termination of the services of the incumbent it may be an instance of an administrative reason. Abolition of post or post office in the area, may be an administrative reason. Act of the incumbent being such that he cannot be proceeded against departmentally but his retention in that place is not congenial and there is no possibility for transferring him and termination is the lone resort, may constitute another instance of administrative reason. Even if termination is to be resorted for administrative reasons such as abolition of post etc., attempt should be made to see that he is accommodated elsewhere. Administrative Instructions to this effect are there Assumption by the respondents that non compliance with the procedure would form an administrative Ground is held to be untenable by the Courts. In the case of P.V. Madhavan Nambiar and another vs D.V. Radhakrishnan, (1990) 1 SLR 757, the High Court of Kerala has held as under:-
"It is not the case of the appellants that the termination was on the ground of unsatisfactory work of the respondent. The precise case of the appellants as put forward before he learned single judge and also before us is that the termination was on account of administrative grounds unconnected with the conduct of the respondent. Administrative grounds according to Shri Madhavan Nambiar are that the first appellant failed to follow the procedure prescribed in the matter of making the selection and in the matter of issuing the order of appointment in the prescribed form.
12 | P a g e Though there is reference to another reason, namely, that the respondent was related to an official of the Department, it was submitted that it was only an incidental statement and not one of the reasons for termination. We shall therefore, examine as to whether the reason put forward, namely, non compliance of the procedure prescribed and issuance of the order in a Form other than the prescribed form can be regarded as an administrative ground contemplated by rule 6 justifying termination without notice. Termination on any administrative ground or reason which has come into existence or which has arisen after appointment. It does not contemplate irregularities if any conducted in the process of selection itself or in the matter of appointment. Rule 6 contemplates termination of service of an employee who has not already rendered more than three years continuous service which pre-supposes that the appointment has been made properly. Hence, we have no hesitation in taking the view that the termination of the service on any administrative ground contemplated by rule 6 is a ground or reason that arises after the appointment and not on grounds that have arisen before or in regard to the appointment, termination cannot be done under rule 6. As it is not the case of the appellant that there was any administrative ground of the reason which has arisen after the appointment of the respondents, we have no hesitation in the view that rule 6 could not have been pressed into service by the appellants. Hence, on this short ground, the termination of the respondent is liable to be vacated as the same has been brought about in violation of Rule 6. "
It is seen from the cases in hand that save a few, majority of the applicants have put in more than 2 years of service. And, almost in all cases, irregularity has been the cause for review and Rule 4(3)(c) is applicable to all these cases but admittedly, no show cause notice was issued. Putting the affected individual to notice is a pre-requisite as per the above Rule and non adherence to the above rule is patently illegal. On the strength of the decision of the Mumbai Bench of the Tribunal in the case of Adesh vs Senior Superintendent of Post Offices (OA No. 2191 of 2005 - decided on 23-01-2009,) the impugned orders are liable to be quashed and set aside in such cases. The decision in the case of P.V. Madhavan Nambiar and another vs D.V. Radhakrishnan, (1990) 1 SLR 757 relied upon by one of the counsel supports the case of the applicants falling under this category (cases falling under Rule 4(3)(c) of the Rules). In that case, the High Court of Kerala has held as under:-
In certain cases, termination took place as there were certain vigilance cases. In such cases, there ought to have been regular inquiry notwithstanding the fact that the applicants concerned have not rendered three years of service. Clear omission to conduct this drill of disciplinary proceedings and adopting a short cut under Rule 8(2) equally illegal. In respect of such cases falling under this category the impugned orders have to meet the same Waterloo! In the case of M.Bhaskar Raju vs Supdt. Of Post 13 | P a g e Ofices, Vizianagaram (2001(3) ATJ622, the Hyderabad Bench of the Tribunal dealt with a case of termination under Rule 8(2) of the Rules and the fact was that the employee indulged in certain forgery. Referring to Rule 9 and 10 of the Rules which relates to penalties and procedure for imposing penalties, the Tribunal held, "the action taken in this was contrary to Rule 9. When the applicant was found to have indulged in fraud, then Rule 9 is attracted." The impugned order of termination under Rule 8(2) of the Rules was quashed and set aside. Direction was issued to reinstate the applicant in service with all consequential benefits.
It was however, made clear that the respondents were at liberty to proceed against the applicant in that case in accordance with rules in the light of the observations made in the judgment.
27. But it was noticed that in some cases, the respondents department are using/invoking Rule 6 to short cut Rule 8 of the 1964 Rules, when, specific acts of misconduct-committed by an ED Agent who had less than three years of service came to surface. The department itself felt the illegality accordingly vide its DGP&T letter no.151/2/78-DISC dated 19.04.1979 categorically gave the direction that initiation of regular disciplinary proceedings is necessary, if specific irregularity comes to surface in view of the safeguard accorded to ED Agents under Article 311 of the Constitution of India. The decision in the case of M. Bhaskar Raju supra also supports the case of the applicants."
15. Applicant's counsel has pleaded that in the event of withdrawal of their candidature by other candidates, the applicant was liable to have been engaged and the same was done and that there is no illegality in the said action of the appointing authority. In this regard, learned counsel for the applicant has relied upon the judgment dated 06.09.2001 passed by the Hyderabad Bench of Central Administrative Tribunal in OA No. 604 of 2000 titled S. Ravanaiah Vs. UOI and others. For the sake of clarity, the operative portion of the aforesaid judgment is quoted herein below:
"6. The facts are not in dispute in this case. The selection of one Mr. Vankatarami Reddy, who was found meritorious, made against the notification dated 12.3.1999 has been cancelled on his own withdrawal of his application, vide proceedings dated 31.3.2000. Thereupon the impugned notification was issued calling for fresh applications for the same post. The question that is involved in this case is no longer 'res integra'. A Full Bench of this Tribunal in OA No. 1315 of 2000 in the case of M. Sarojini Vs. Sr. Superintendent of Post Offices, Visakhapatnam & Others, vide its Order dated 12.4.2001, has opined that in the event of cancellation of the provisional selection of the meritorious candidate, the merit list still have to be workerd out by appointing 14 | P a g e the next person in the merit list and that it was not permissible under law to cancel the notification itself and issue a fresh notification.
7. In view of the above judgment of the Full Bench, issuance of the impugned notification is wholly illegal. The OA therefore, is allowed. The impugned notification is quashed. The respondents are directed to proceed with the selection against the notification dated 12.3.1999 as per the merit list already prepared excluding the person who has already been appointed and whose selection has been cancelled.
8. The OA is allowed, in the circumstances without costs."
Similarly, stressing upon the fact that in case the incumbent placed at a top serial in a merit list is found ineligible to be appointed, the candidate placed just below that shall be considered for appointment, the applicant's counsel has relied upon the judgment dated 22.11.2001 passed by the Calcutta Bench of the Central Administrative Tribunal in OA No. 409 of 2001 titled Pabitra Kumar Roy Vs UOI and others wherein it was held that:
"It is obvious that the selection of Rabi Das to the post was illegal since he was educationally qualified to be appointed to the post. When his selection is held to be illegal it follows that the applicant stood at Sl No. 1 in the merit list. There cannot be any justifiable cause to deny the appointment to the applicant on the basis of the said selection."
Expressing the above reliance, learned counsel for the applicant has also referred to the law laid down in the judgment dated 24.11.2003 passed by the Full Bench of Jodhpur Bench of Central Administrative Tribunal in OA No 297 of 2000 titled Rana Ram Vs Union of India and others.
16. Similarly, stressing upon the fact that once an appointment has been made by a competent authority in accordance with the stipulated rules and provisions and on the said post, if the appointee has rendered several years of service, the said appointment cannot be terminated abruptly, applicant's counsel has placed reliance upon the judgment dated 27.04.1976 passed by the Hon'ble Supreme Court of India in the case of The Nayagarh Co-operative Central Bank Vs Narayan Rath And Anr. Reported in AIR 1977 SC 112. For the sake of clarity, the relied upon portion is quoted herein below:
15 | P a g e " 4. The writ petition filed by respondent No. 1 could succeed, in our opinion, on the narrow ground that he had been permitted to function for over thirteen years as secretary of the Bank and that his appointment as secretary was decided upon in a meeting over which the Registrar of Co-operative Societies had himself presided, The writ petition in substance is directed not against any order passed by the Co-operative Bank but against the order passed by the Registrar disapproving the appointment of respondent No. 1 as secretary of the Bank. It was not open to the Registrar, in our Opinion, to set aside respondent No. l's appointment as a secretary after having acquiesced in it and after having, for all practical purposes, accepted the appointment as valid. It is undesirable that appointments should be invalidated in this manner after a lapse of several years."
17. Also, learned counsel for the applicant has relied upon the judgment dated 02.04.2002 passed by the Bangalore Bench of Central Administrative Tribunal in OA No. 194 of 2001 titled Shri Ravi S Banakar Vs UOI and Ors. submitting that in the said case, the Court held once an individual who is eligible for appointment subject to meeting requisite educational eligibility criteria and has not committed any fraud to secure the appointment, gets appointed by a competent authority, he cannot be removed on the basis of any alleged irregularity on the part of the respondents. For the sake of clarity, the relied upon portion is quoted herein below:
"The instant case is not one in which the candidate appointed lacked the initial eligibility or qualification for appointment. If any such person is appointed without such basic qualification prescribed under law, such appointment would be void and even a writ of Quo warranto lies against such appointment. But once the person fulfills all the eligibility conditions and he is selected by the competent authority, whether such selection can be set aside on the basis of certain alleged irregularity committed by the selecting authority. In our considered opinion, on the basis of the alleged irregularity if a selection is to be set aside, the person aggrieved should challenge the selection or appointment of the person so appointed before the appropriate competent authority, in the instant case, before this Tribunal. On the basis of the alleged irregularity either the appointing authority or the super or authority cannot set aside such appointment only on the ground that the appointing authority committed a mistake. It is an established principle of law that no one can take an advantage of his own mistake. If the appointing authority has made a mistake or irregularity in appointing a particular person, it is always open to the superior officer to take appropriate action or disciplinary proceedings against such officer. But so far as the candidate appointed is concerned, he has taken his chance 16 | P a g e according to the law and he has been selected and appointed. Unless it is a case of fraud etc. committed by him or appointed (sic) authority his selection cannot be set aside being incompetent. Whenever such candidate fulfills the requirements of law as to the eligibility of appointment such candidate on his selection and appointment gets a vested right and the same cannot be interfered with on the basis of any alleged irregularity on the part of the department. A person appointed after following the due process of selection has legitimate expectancy to continue in service till the date of superannuation consequently gets right to life under Article-21 of the Constitution. Any such right to life or personal liberty of a person cannot be deprived of unless it is according to the procedure established by law. In other words in the case of dereliction of duty or fraud or suppression of fact or anything unbecoming of a Government servant, the disciplinary proceedings do provide for dismissal of such person and in such circum- stances, the right to livelihood provided under article-21 of the Constitution would not be available. If a person is on probation during the probation period such person is liable to be discharged, if a person is appointed purely on temporary of provisional basis under temporary civil service rules, his services are liable to be terminated by giving one month's no ice or one month's salary in advance. But once there is a valid regular appointment by competent authority such person's service can be dispensed with following one of these modes pre- scribed under law. Therefore, only on the basis of alleged irregularity."
18. Similarly, learned counsel for the applicant has argued that the case of one person similarly situated as the applicant was allowed in his favour wherein the direction was given to the respondents to reinstate him in services along with all consequential benefits. In this regard, reliance has been placed upon the judgment dated 12.04.2021 passed by the Lucknow Bench of Central Administrative Tribunal in OA No. 224 of 2015 titled Sandeep Kumar Singh Vs. UOI and others. For the sake of clarity, the operative portion of the aforesaid judgment is quoted herein below:
"7. In view of the aforesaid positions, and as the issue has already attained finality, we deem fit and proper to issue similar order in this case. Accordingly, impugned order dated 02.03.2015 passed by the respondent no. 3 as well as order dated 27.02.2015 passed by the respondent no. 2 are hereby quashed and set aside and the respondents are hereby directed to reinstate the applicant to his post with all consequential benefits i.e. full TRCA for the period he has been kept out of service because of the impugned orders. In case, his post has been filled up by other person, then the applicant shall be accommodated in any other vacant post and brought back to his original post at the earliest opportunity. This 17 | P a g e order shall be complied within a period of three months from the date of receipt of certified copy of this order. Liberty is also granted to the respondents to proceed against the applicant where so warranted, under Rule 4(3) or under Rule 9 and 10 of the GDS (Conduct and Engagement) Rules, 2011, in the light of the earlier referred to order dated 14.07.2017 of the Allahabad Bench of this Tribunal in OA 742/2016 as upheld and confirmed by the order dated 30.04.2018 passed by Hon'ble Allahabad High Court."
Similarly, learned counsel for the applicant also argued that in the event of other candidates' not fulfilling the requisite eligibility conditions, it was incumbent upon the appointing authority to have considered the candidature of the applicant and the same was accordingly done. In this regard, learned counsel relied upon the judgment dated 29.05.2024 passed by the Allahabad Bench of Central Administrative Tribunal in OA No. 1701 of 2012 titled Narendra Kumar Vs UOI and others, the operative portion of which is quoted herein below:
"11. There is another aspect of the matter. Perusal of impugned order dated 6.11.2012 reveals that the complainant who lodged the complaint was at sl no. 1 in the comparative merit list and that he denied the signature appended on the application so moved for not furnishing the sufficient accommodation to run the post office and that the said certificate ought to have been obtained after issuing the appointment order, but the name of the complainant has been scored off, the name of the applicant has been inserted by manipulating the records though he ought to have been given an opportunity for the same and as such the department has committed wrong. In this regard, we may observe that there is no such provision in the GDS Rules for providing sufficient accommodation to run the post office and as such the version of the respondents made in the impugned order does not hold good and is not legally sustainable in the eyes of law. It is pertinent to mention here that vide Annexure CA 1 letter dated 6.12.1993 issued by Government of India, Ministry of Communication, Department of Posts, the respondents' plea is not acceptable."
19. Learned counsel for the applicant has placed reliance upon the judgment dated 08.01.2004 passed by a Full Bench of Madras, Central Administrative Tribunal in OA No. 587, 588 and 589 of 2002 titled R. Jambukeswaran and ors vs UOI and others. He argued in the aforesaid judgment, the Tribunal held that when a person is appointed, necessarily with the passage of time, he gets certain rights
- if no action is taken within a reasonable time, it would tantamount 18 | P a g e to acquiescence - it is not permissible for authorities to make enquiry at any point of time and start challenging his appointment being erroneous. For the sake of clarity, the relied upon portion are quoted herein below:
"25. There is another way of looking at the same. The instructions further do not prescribe any time-limit within which such a power can be exercised. When a person is appointed, necessarily with the passage of time, he gets certain rights. If no action is taken within a reasonable time, it would tantamount to acquiescence. It cannot be that at any point of time, the authorities can enquire and start challenging the said action.
26. We know from the decisions of the Supreme Court in the case of Shri Krishnan v. The Kurukhsetra University, Kurukshetra, (1976) 1 SCC 311 that when there is ample opportunity to act and it is not acted, then it tantamount to acquiescence to the infirmities, if any. The Supreme Court held:-
"7. Equally it was the duty of the Head of the Department of Law before submitting the form to the university to see that the form complied with all the requirements of law. If neither the Head of the Department nor the university authorities took care to scrutinize the admission form, then the question of the appellant committing a fraud did not arise. It is well settled that where a person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. It was neither a case of suggestio falsi, or suppresio veri. The appellant never wrote to the university authorities that he had attended the pre- scribed number of lectures. There was ample time and opportunity for the university authorities to have found out the defect. In these circumstances, therefore, if the university authorities acquiesced in the infirmities which the admission form contained and allowed the appellant to appear in Part I examination in April, 1972, then by force of the university statute the university had no power to withdraw the candidature of the appellant. A somewhat similar situation arose in Premji Bhai Ganesh Bhai Kshtriya v. Vice Chancellor Ravishankar University, Raipur (AIR 1967 MP 194) where a Division Bench of the High Court of Madhya Pradesh observed as follows:
From the provision of Ordinance Nos. 19 and 48 it is clear that the scrutiny as to the requisite attendance of the candidates is required to be made before the admission cards are issued. Once the admission cards are issued permitting the candidates to take their examination, there is no provision in Ordinance No.19 or Ordinance No. 48 which would enable the Vice-Chancellor to withdraw the permission. The discretion having been clearly exercised in favour of the petitioner by permitting him to appear at the examination, it was not open to the Vice-Chancellor to withdraw that permission subsequently and to withhold his result.
19 | P a g e We find ourselves in complete agreement with the reasons given by the Madhya Pradesh High Court and the view of law taken by the learned Judges.
Similar was the decision in the case of the Nayagarh COoperative. Central Bank Ltd. and Another v. Narayan Rath and Another, (1977) 3 SCC 576. The Supreme Court held that after a lapse of several years, it was not permissible to terminate the appointment on the ground that the approval of the Registrar had not been taken. The doctrine of acquiescence was put into service. The Supreme Court held:-
"4. The writ petition filed by respondent 1 could succeed, in our opinion, on the narrow ground that he had been permitted to function for over thirteen years as secretary of the Bank and that his appointment as Secretary was decided upon in a meeting over which the Registrar of Co-operative Societies had himself presided. The writ petition in substance is directed not against any order passed by the Co-operative Bank but against the order passed by the Registrar disapproving the appointment of respondent 1 as secretary of the Bank. It was not open to the Registrar, in our opinion, to set aside the respondent 1's appointment as a secretary after having acquiesced in it and after having for all practical purpose, accepted the appointment as valid. It is undesirable that appointments should be invalidated in this manner after a lapse of several years."
27. From these principles, it is clear that the instructions which give unfeterred powers to the higher authority, therefore, cannot be sustained.
28. Strong reliance was placed on the decision of the Cuttack Bench of this Tribunal in the case of Sri Arvinda Sourya Mouli v. Union of India and Others in OA No. 588/1995 rendered on 12.7.2000. This Tribunal proceeded on erroneous presumption that under Article 311 of the Constitution, the higher authority can act, but that is not the question before us. The question in controversy was as to if when the relevant rules have been so framed, such a power could be exercised or not.
29. In fact, it appears that the mistake has now been rectified because the Department of Posts, Gramin Dak Sevak (Conduct and Employment) Rules, 2001 have come into force. They have replaced the earlier Rules of 1964. In the year 2003, the rules of the year 2001 had been amended giving superior authority the power to act. The amendment reads:-
"The following rules are issued under the authority of Government of India to amend the Department of Posts, Gramin Dak Sevaks (Conduct and Employment) Rules, 2001, except as respects things done or omitted to be done before such amendment, mainly:
20 | P a g e
1. (i) These rules may be called the Department of Posts Gramin Dak Sevaks (Conduct and Employment) Amendment Rules, 2003.
(ii) They shall come into force from the date of their circulation.
2. In the Department of Posts, Gramin Dak Sevaks (Conduct and Employment) Rules, 2001, in Rule 4, after sub-rule (2), the following sub-rule shall be inserted, namely:
"(3). Notwithstanding anything contained in these rules, any authority superior to the Appointing Authority as shown in the Schedule, may, at any time, either on its own motion or otherwise call for the records relating to the appointment of Gramin Dak Sevaks made by the Appointing Authority, and if such Appointing Authority appears-
(a) to have exercised a jurisdiction not vested in it by any law or rules time being in force; or
(b) to have failed to exercise a jurisdiction so vested; or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity;
Such Superior Authority may, after giving an opportunity of being heard, makes such order as it thinks fit".
This obviously shows that presently the mistake has been corrected. So far as the instructions of 1997 are concerned, the same must be held to be unreasonable and arbitrary."
20. Similarly, arguing that the applicant has been holding the post for several years now and his engagement was done in accordance with rule subject to the fact that he was satisfying all the requisite eligibility criteria and thus, simply terming the appointment a mistake is uncalled for, learned counsel for the applicant has placed reliance upon the judgment dated 07.08.2001 passed by the Mumbai Bench of Central Administrative Tribunal in OA No. 544 of 1997 titled Shri Sanjay Vasantrao Hage Vs Union of India and others. For the sake of clarity, the relied upon portion is quoted herein below:
"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 along 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 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."
21 | P a g e
21. Stressing upon his contention that since the engagement of the applicant was done by a competent appointing authority in accordance with applicant's merit and also upon consideration of various other criteria necessary including the presence of all the requisite documents and credentials on record, the same cannot be done away with unless an event of fraud, irregularity and favoritism is cogently established. In this regard, applicant's counsel has relied upon the judgment dated 17.09.2010 passed by the Hon'ble Bombay High Court in Writ Petition No. 1580 of 2010 and connected matters titled Director Postal Services, Nagpur Region And others Vs. Sanjay. For the sake of clarity, the referred portion is quoted herein below:
"9. Without entering into controversy as to whether the said Rules of 2001 are statutory in nature, we upon perusal of the entire record find that there was no material irregularity or illegality on the part of the Appointing Authority in making appointments of the respondents as per the recruitment rules.
The only objection of the Reviewing Authority and the learned Counsel for the petitioners before us to the appointments has been that those candidates who were having more percentage of marks were not given preference and that is why there is a material irregularity in the matter of appointments so also the violation of the recruitment rules. This is the only ground that has been raised in the vigilance report, departmental communications and in the pleadings set up before the Tribunal as well as this Court. There is no other ground for objecting the appointments except this. The ground regarding abolition of posts was never raised before the Tribunal in the pleadings and the same seems to have been raised orally before the Tribunal.
We deal with the said aspect little later.
10. Now taking into consideration the said objection on facts, at the outset, we find that marks obtained in the matriculation examination was not the only criteria for making the appointments. On the contrary, apart from the marks in the matriculation examination a very important criteria was that the candidate should have agricultural land/independent property in his name and should have proper source of income so also residence at the same village, where the post office is located.
Secondly, the rule regarding preference to higher percentage of marks cannot be read to mean that those having higher percentage of marks were mandatorily required to be selected or appointed. The use of the very word 'preference' does not make it
22 | P a g e mandatory on the part of the Appointing Authority to appoint a candidate, having higher percentage of marks in matriculation examination and therefore, we find that there was no violation of rule on the part of the Appointing Authority in the matter of recruitment as alleged by the petitioners.
11. Looking to the factual data, which has been considered by the Tribunal and in our opinion rightly, the difference of percentage of marks in most of the cases is marginal. Since we have held that there is no violation of rule regarding recruitment on the part of the Appointing Authority, even if, some candidates with less percentage of marks were selected and appointed, no illegality much less material irregularity could be said to have been committed by the Authority. It is important to note that there is no allegation at all about bias or favouritism by the petitioners even in the vigilance report or in the pleadings set up before the Tribunal or this Court.
In the wake of these facts and the discussion made by us above, we find that the decision of the Supreme Court in the case of Union of India and others (supra) is aptly applicable in the facts of the case and it would be proper to quote paragraph Nos.12 to 16 from the said judgment, which read thus :
"12. The matter relating to appointment or recruitment of EDDA is not governed by any statute but by departmental instructions. It is now trite that if a mistake is committed in passing an administrative order, the same may be rectified. Rectification of a mistake, however, may in a given situation require compliance with the principles of natural justice. It is only in a case where the mistake is apparent on the face of the record, a rectification thereof is permissible without giving any hearing to the aggrieved party.
13. The respondent was recruited not only on the basis of marks obtained by him in the matriculation examination but also upon consideration of various other criteria necessary therefor. He filed all necessary and requisite documents. The candidature of all the candidates has been considered on their own merits. Only because one Pitamber Majhi had obtained higher marks in the matriculation examination, the same by itself should not have been a ground for cancelling the order of recruitment passed in favour of respondent.
14. When a Selection Committee recommends selection of a person, the same cannot be presumed to have been done in a mechanical manner in absence of any allegation of favouritism or bias. A presumption arises in regard to the correctness of the official act. The party who makes any allegation of bias or favouritism is required to prove the same. In the instant case, no such allegation was made. The selection process was not found to be vitiated. No illegality was brought to our notice. In this view of the matter, we are of the opinion that the said Pitamber Majhi by reason of higher marks obtained by him in the matriculation examination also cannot be said to be a better candidate than the 23 | P a g e respondent herein. In this view of the matter, we do not find any fault with the impugned judgment of the High Court.
15. The Division Bench of the High Court, in our considered view, correctly applied the law, which has been crystallised in a number of decisions of this Court.
16. Indisputably, the respondent has fulfilled all the essential terms and conditions for the appointment to the said post. The respondent alone had submitted all necessary and required documents before the date prescribed by the appellants. It may also be pertinent to mention that at the time of selection the respondent was the only one who had the experience of working continuously on the said post for a period of one-and-a-half years.
Perhaps, all these factors cumulatively persuaded the authorities concerned to select the respondent to the said post."
22. Similarly, learned counsel for the applicant argued that a candidate who has been working on non-regular post but appointed through employment exchange even on provisional basis holds the first right to be considered for regular appointment on the said post. In this regard, he has relied upon the judgment dated 24.10.1994 passed by the Full Bench of Hyderabad Bench of Central Administrative Tribunal in OA No. 452 of 1993 titled S. Ranganayakulu Vs. The Sub-Divisional Inspector (Postal) West Sub- Division, Ananatapur and others. For the sake of clarity, the referred portion of the aforesaid judgment is quoted herein below:
"18. The learned counsel for the petitioner has made a statement at the Bar that apart from the contention, that the stand taken by the respondents that the petitioners could not be considered for a regular appointment as he had not been sponsored by the Employment Exchange, is illegal and without any justification, no other point is being pressed in support of this O.A."
23. Similarly, the applicant's counsel has relied upon the judgment dated 17.11.1975 passed by the Hon'ble Supreme Court of India in the case of Shri Krishan Vs The Kurukshetra University reported in 1976 AIR 376 submitting that in the said case, the Hon'ble Court held that in the event of any discrepancy with regard to the issuance of admission cards, the same is required to be rectified before the issuance of such cards for which there was ample time available but since the same was not done, once those cards were issued, no scope was left with the authorities to have rejected their candidature.
24 | P a g e Applicant's counsel argued that the instant case of the applicant falls in the similar bracket as there was ample time with the respondents to have found the irregularity in the engagement of the applicant but that was not done and only when the applicant had already rendered more than five years of service, he was disengaged on frivolous grounds. For the sake of clarity, the relied upon portion of the judgment is quoted herein below:
7. It appears from the averments made in the counter-affidavit that according to the procedure prevalent in the College the admission forms are forwarded by the Head of the Department in December preceding the year when the Examination is held. In the instant case the admission form of the appellant must have been forwarded in December 1971 whereas the examination was to take place in April/May 1972. It is obvious that during this period of four to five months it was the duty of the University authorities to scrutinise the form in order to find out whether it was in order, Equally it was the duty of the Head of the Department of Law before submitting the form to the University to see that the form complied with all the requirements of law. If neither the Head of the Department nor the University authorities took care to scrutinise the admission form, then the question of the appellant committing a fraud did not arise. It is well settled that where a person on whom fraud is committed is in a position to discover the truth by due diligence, was fraud is not proved. It was neither a case of suggestion falsi, or suppression yeri. The appellant never wrote to the University authorities that he attended the prescribed number of lectures. There was ample time and opportunity for the University authorities to have found out the defect. In these circumstances, therefore, if the University authorities acquiesced in the infirmities which the admission form contained and allowed the appellant to appear in part I Examination in April 1972, then by force of the University Statute the University had no power to withdraw the candidature of the appellant. A somewhat similar situation arose in Premji Bhai Ganesh Bhai Kshatriya v. Vice Chancellor, Ravishankar University, Raipur and Ors. where a Division Bench of the High Court of Madhya Pradesh observed as follows:
From the provisions of Ordinance Nos. 19 and 48 it is clear that the scrutiny as to the requisite attendance of the candidates is required to be made before the admission cards are issued. Once the admission cards are issued permitting the candidates to take their examination, there is no provision in Ordinahce No. 19 or Ordinance No. 48 which, would enable the Vice-Chancellor to withdraw the permission. The discretion having been clearly exercised in favour of the petitioner by permitting him to appear at the examination, it was not open to the Vice-Chancellor to withdraw that permission subsequently and to withhold his result.
25 | P a g e
24. Also, arguing that the instant case of the applicant comes under the ambit of issuance of show cause notice with premeditation of enforcing punishment against him, learned counsel for the applicant submitted that the Hon'ble High Court of Chhattisgarh in its judgment dated 24.01.2017 passed in Writ Petition(s) No. 5780 of 2016 titled Smt. Shitala Diwan Vs State of Chattisgarh held that when a show cause notice has been issued with premeditation and without authority of law or jurisdiction, the writ petition against that show cause notice is admissible. For the sake of clarity, the referred portion of the aforesaid judgment is quoted herein below:
"17. It is well settled law that the writ Court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless it is without jurisdiction and without authority of law but it is equally well settled when the notice is issued with pre-meditation, the writ petition would be maintainable against show cause notice.
18. In the matter of M/s. Siemens Ltd. Vs. State of Maharashtra and others4 , Their Lordships of the Supreme Court have held tht the writ petition against show cause notice would be maintainable when notice is issued with premeditation and observed as under:-
"9.Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of Uttar Pradesh v. Brahm Datt Sharma and Anr. AIR 1987 SC 943, Special Director and Another v. Mohd. Ghulam Ghouse and Another, (2004) 3 SCC 440 and Union of India and Another v. Kunisetty Satyanarayana, 2006 (12) SCALE 262], but the question herein has to be considered from a different angle, viz, when a notice is issued with pre-meditation, a writ petition would be maintainable. In such an event, even if the courts directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose [See K.I. Shephard and Others v. Union of India and Others (1987) 4 SCC 431]. It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter affidavit as also in its purported show cause.
10. The said principle has been followed by this Court in V.C. Banaras Hindu University and Ors. v. Shrikant (2006) 6 SCALE 66, stating: (SCC p.60, paras 48-49) "48. The Vice Chancellor appears to have made up his mind to impose the punishment of dismissal on the Respondent herein. A 26 | P a g e post decisional hearing given by the High Court was illusory in this case.
49. In K.I. Shephard & Ors. etc. etc. v. Union of India & Ors. [AIR 1988 SC 686], this Court held : (SCC p.449, para 16) "It is common experience that once a decision has been taken, there is tendency to uphold it and a representation may not really yield any fruitful purpose."
19. A careful perusal of the notice dated 30.9.2016 (Annexure P/1) would show that the petitoner's case has already been reconsidered by respondent No.3 and decision has been taken to revoke the appointment of the petitioner and as such, final decision has already been taken to revoke the appointment of the petitioner, therefore, the writ petition is held to be maintainable as respondent No.3 has already made up its mind to termiante the services of the petitioner."
25. Similarly, arguing that once it is established that the review was made and subsequently the order of termination was passed by an incompetent authority, learned counsel for the applicant submitted that the entire review exercise becomes vitiated and therefore the termination order is liable to be struck down as illegal and arbitrary. In this regard he has relied upon the judgment dated 05.01.2024 passed by the Allahabad Bench of Central Administrative Tribunal in OA No. 67 of 2020 titled Kanti Kumar Kashyap Vs UOI and others. For the sake of clarity, the referred portion is quoted herein below:
"9. Admittedly, the order, impugned in the Application, has been passed by Assistant Superintendent of Post Offices, West Sub Division, Mirzapur in compliance of the order of Superintendent of Post Offices, Mirzapur, which is higher authority. Admittedly, the appointing / competent authority in the case of the applicant is Assistant Superintendent of Post Offices and as such the order must have been passed by him independently and not on the dictates / directions of higher authority."
26. In this matter, learned counsel for the parties have raised their arguments in manifold, thus we are deliberating the same point-wise:
i. The question for consideration as raised by the learned counsel for the applicant is that whether review can be made taking recourse to the provision of Rule 4(3)(c) of GDS (Conduct and Engagement) Rules, 2011 after expiry of five years service period. In this respect, it is mentioned that applicant's services were terminated earlier vide
27 | P a g e order dated 17.05.2016. Challenging the said order, the applicant approached before the Tribunal through an original application which was allowed on 17.05.2019 setting aside the termination order and extending the liberty to the respondents to take action in accordance with rules. The order of the Tribunal was passed placing reliance upon the judgment dated 30.04.2018 of the Hon'ble High Court of Allahabad passed in Writ Petition No. 56986 of 2017.In compliance of the direction of the Tribunal as well as of the Hon'ble High Court, the applicant was reinstated on 25.06.2019. Thereafter, fresh notice dated 22.08.2019 was issued taking recourse to the provision enshrined in Rule 4(3)(c) of GDS (Conduct and Engagement) Rules, 2011. If the submissions raised on behalf of the applicant's counsel in this respect are taken into consideration, it emerges that termination order dated 17.05.2016 was passed after one year service of the applicant. Since while allowing the OA and dismissing the writ petition, liberty was extended to the respondents to take action in accordance with rule thus, notice issued on 22.08.2019 cannot be said to have been issued after the expiry of five years' (approx) service period of the applicant. However, even if, for the sake of argument, this fact be taken into consideration that notice for terminating/cancelling the services of the applicant was issued after five years of service, then also nothing is mentioned in the Rule 4(3)(c) of GDS (Conduct and Engagement) Rules, 2011 regarding limiting the time for reviewing the engagement of the applicant. Thus, submission raised on the part of the applicant's counsel in this respect is not acceptable. Review was made in accordance with rule and there is no illegality in reviewing the engagement in the present matter.
It is also clarified that review has been made on the basis of pre-recruitment irregularity that took place in this case and therefore provision of Rule 4(3)(c) of GDS (Conduct and Engagement) Rules, 2011 is applicable in the matter. Provision of Rule 8(2) of GDS (Conduct and Engagement) Rules, 2011 is applicable in cases of post-recruitment category on the ground of administrative exigency 28 | P a g e or unsatisfactory service. Similarly, Rule 10 of the aforesaid Rules is applicable in cases of misconduct etc. Thus, on this ground also, submission raised on behalf of the applicant is not acceptable. Reviewing authority has rightly invoked the jurisdiction vested to it under Rule 4(3)(c) of GDS (Conduct and Engagement) Rules, 2011 for reviewing the engagement of the applicant.
ii. Secondly, learned counsel for the applicant has also raised an argument that no complaint whatsoever was ever made by any person citing any sort of irregularity in the manner in which the engagement of the applicant was made. And therefore, there was no need for the respondents' authorities to have made any review.
We have minutely perused the notice as well as the impugned order and found that review was made on the basis of complaint received by the reviewing authority. Nothing is mentioned in the notice that who has made the complaint. It is pertinent to record that provision of Rule 4(3)(c) of GDS (Conduct and Engagement) Rules, 2011 empower the reviewing authority to review the matter on its own also. It is not always necessary that review can only be made when a written complaint is filed. Rather it can be made on the basis of oral complaint also. It is also clarified at this stage that just because an engagement was made by an authority earlier, the authority subsequent to that will not be barred under any provision to not review that engagement afresh, should the need arise. Thus, submission raised on behalf of the applicant's counsel in this regard is also not acceptable.
iii. Thirdly, it would also be pertinent to refer to the DG's instructions of 2003 and 2010. The said instructions evidently establish that merit will be prepared on the basis of marks obtained in the High School examination. It held that firstly, a panel of candidates in the ratio of 1:5 shall be prepared. In case the candidate placed at higher position do not fulfils the prescribed eligibility criteria, then only the candidate placed at a lower position shall be considered for engagement.
29 | P a g e In this matter, the reviewing authority after reviewing the matter was of the opinion that the applicant was placed at sl no. 5 in the merit list. Allegation in the notice against the appointing authority is that 4 candidates who were placed over and above the applicant were ignored and straightway without obtaining any unwillingness of those candidates who were placed at a higher position than the applicant, the candidature of the applicant was considered and his engagement was done. Plea of the applicant is that amongst the top 4 candidates, candidates placed at sl no. 2,3 and 4 got appointed in different post offices and therefore there candidature was cancelled by the appointing authority. Similarly, it has also been averred by the applicant's counsel that candidature of the remaining candidate i.e., who was placed at sl no. 1 was rejected by the appointing authority as he was not fulfilling the requisite eligibility criteria despite being above the applicant in terms of merit. This reason as advanced by the applicant and by the appointing authority is not acceptable because even if for a moment it is assumed that both the candidates who were placed above the applicant in the merit list were ineligible as they were not fulfilling the eligibility criteria or that one of them got appointed in different post office, it was incumbent upon the appointing authority to have sought the written unwillingness from that candidate. Simply on the ground that one of them has been selected in other post office, his candidature could not have been ignored without him submitting his unwillingness. That was not done and no unwillingness from the candidate who is said to have withdrawn his candidature was sought. Also, in regard to the candidate whose candidature was declared ineligible, not even a single cogent remark was recorded by the appointing authority to elucidate the reasons that led to cancellation of his candidature. Straightway, the conditions were made suitable for the applicant in order to confer appointment upon him. Appointing authority has rejected the candidature of one candidate on the ground that he got selected in different post office. It may be mentioned here that mere selection of any candidate in different post office is not a ground to reject his candidature. Until and unless he had withdrawn his 30 | P a g e name/candidature in written or that he was not fulfilling the eligibility criteria, his name could not have been ignored. In the event of not granting any opportunity of hearing to those candidates who were placed in the top 4 positions i.e., above the applicant, appointing authority had seriously erred as it had no right to proceed straightway ignoring the candidature of the aforesaid persons to appoint the candidate placed at sl no. 5 i.e., the applicant. Thus, in our considered opinion, serious irregularity was committed by the appointing authority by overriding the prevailing rule applicable at that time. The appointing authority ought to have given option to candidates who were placed above the applicant to fulfill the other eligibility criteria. Since it was not done, thus, no illegality is found in reviewing the engagement of the applicant by the reviewing authority.
Reviewing authority has rightly concluded that irregularity has been committed by the appointing authority. As far as the termination / cancellation order (impugned order) issued by the respondents is concerned, language used in the Rule 4(3)(c) of GDS (Conduct and Engagement) Rules, 2011 is that "Such superior authority may, after giving an opportunity of being heard, make such order as it thinks fit." This implies that the reviewing authority was enough competent to pass orders for termination also. The view taken by the Tribunal finds support with the provision of Article 311 (1) of the Constitution of India. If for the sake of argument, submission raised on behalf of the applicant on this point is taken into consideration then also irregularity caused by the appointing authority cannot be overlooked / ignored on this ground. It goes to the root of selection and vitiates the entire process of selection. Therefore, in this regard, it is pertinent to mention that no benefit whatsoever can be granted to the applicant for his reliance upon the judgment passed by this Tribunal in the case of Kanti Kumar Kashyap (supra) as quoted by the applicant's counsel.
27. Further, with regard to the case laws viz. S. Ravanaiah (supra), Pabitra Kumar Roy (supra) and Narendra Kumar (supra) as relied 31 | P a g e upon by the applicant, it is evident that in the said cases, the respective courts had dealt with the question of consideration of candidature of the person placed next to the one whose candidature has not been considered subject to him failing to satisfy the requisite eligibility criteria. The applicant's counsel has been of the opinion that in the event of withdrawal of their candidature by the other candidates, the applicant who was placed at sl no. 5 was liable to have been appointed and the same was rightly done. Even if this argument is considered to be true, then also, appointment of the applicant who was placed at sl no. 5 could not have been done without following the prescribed procedure as laid down in the GDS (Conduct and Engagement) Rules, 2011 and DG instructions 2003 and 2010. The said Rule says that in the event of withdrawal of candidature, the unwillingness from such candidates must have been obtained. This was not done in the instant case. Further, as regards to those persons whose candidature was rejected by the appointing authority for one reason or other, no single cogent reason was recorded by the appointing authority justifying such rejection. Thus, the case laws relied upon by the applicant's counsel have no bearing to the instant case of the applicant and no benefit can be withdrawn from them.
28. Similarly, as regards to the case laws viz. Narayan Rath (supra) case relied upon by the applicant's counsel, in the said case, the Apex Court has held that if the appointee has rendered several years of service, his appointment cannot be terminated abruptly. However, it is pertinent to record that the appointment of the applicant was not terminated abruptly but it was done only after following the procedure prescribed in the rules governing the subject matter. Notice was served upon him to which his reply was sought. Opportunity of hearing was also given to him. And further, the GDS Rules that have been relied upon in the instant case also speak for the fact that the reviewing authority is free to review the engagement at any juncture of time to which no illegality or infirmity can be attributed. This provision has already been dealt with in the previous 32 | P a g e paragraphs of this judgment and therefore, no benefit can be withdrawn from the case law as relied upon by the applicant. Also, for this reason itself, the case law viz. R. Jambukeswaran (supra) as relied upon by the applicant's counsel offers no refuge to the applicant. This case rules that when a person is appointed, necessarily with the passage of time, he gets certain rights - if no action is taken within a reasonable time, it would tantamount to acquiescence - it is not permissible for authority to make enquiry at any point of time and start challenging his appointment being erroneous. However, it is pertinent to record that in the instant case of the applicant, when the entire selection process has been established as irregular, the engagement of the applicant could not have been overlooked and since the very rules of the departmental statutes provides for the concept of review, certainly, the services of the applicant and similarly placed persons could not have been allowed to remain intact. Similarly, for the aforesaid reasons, the case laws viz. Sanjay Vasantrao Hage (supra), Sanjay (supra) and S. Ranganayakulu (supra) have no bearing in the instant case of the applicant.
29. As far as the case laws viz. Shri Krishan (supra) is concerned wherein the Apex Court has held that in the event of any discrepancy with regard to the issuance of admission cards, the same is required to be rectified before the issuance of such cards and once those cards have been issued, the candidature of the students cannot be rejected keeping in view the fact that the respondents authorities had ample time to rectify the discrepancy. However, it is pertinent to record that the instant case of the applicant does not relate to issuance of any sort of admission cards but it concerns the lifelong issue of appointment to a post. The very departmental rules on which this entire case is based clearly speaks for the scope of review and the make such review, those rules were strictly adhered to. Those rules signify the provision of disengagement of a person in case his appointment turns out to be irregular and the same was done in the instant case of the applicant. Thus, no benefit whatsoever can be given to the applicant on the basis of the aforesaid ruling.
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30. Further, relying upon the case of Smt. Shitala Diwan (supra), the applicant's counsel has argued that when a show cause notice has been issued with premeditation and without authority of law or jurisdiction, the writ petition against that show cause notice is admissible. He argued that the instant case of the applicant is squarely covered with the aforesaid ruling as here also, the respondents had issued the show cause notice with premeditation to impose a specific punishment upon the applicant. We have carefully perused the ratio laid down by the Hon'ble High Court of Chattisgarh in the aforesaid judgment.
Learned counsel for the applicant has submitted that in the show cause notice dated 22.08.2019, details of proposed punishment has been clearly mentioned whereas such details should not have been given in the show cause notice. It is also argued that mentioning of the nature and quantum of the proposed penalty / punishment in the show cause notice will indicate that respondents had premeditation for imposing a specific punishment upon the applicant.
In this regard, it would be in the fitness of things to refer to the judgment of Hon'ble Supreme Court of India in the case of Hukum Chand Malhotra Vs Union of India reported in AIR 1959 SC 536 (Five Judges Constitution Bench) as well as the case of State of Madhya Pradesh Vs Ram Ratan reported in AIR 1980 SC 1650.
In the case of Hukum Chand Malhotra (supra), after conducting the inquiry in the show cause notice, three proposed punishments were prescribed in it and it was challenged before the Constitution Bench of the Supreme Court. The Hon'ble Court held that there is nothing wrong in principle in the punishing authority tentatively forming the opinion that the charges proved merit any one of the three major penalties and on that footing asking the Government servant concerned to show cause against the punishment proposed to be taken in the alternative in regard to him.
It has also been held in the aforesaid case law that exact or actual punishment to be inflicted on the government servant concerned must be mentioned in the show cause notice issued at the 34 | P a g e second stage. It is obvious, and Article 311(2) of the Constitution of India expressly says so , that the purpose of the issue of a show cause notice at the second stage is to give the Government servant concerned a reasonable opportunity to show cause why the proposed punishment should not be inflicted on him. Mentioning three punishments in the show cause notice gave a better and fuller opportunity to the appellant to show cause why none of the three punishments should be inflicted on him. It has also been held that mentioning the nature of proposed punishment in the show cause notice is only tentative. Authority issuing the show cause notice is not bound to pass the same punishment as mentioned in the show cause notice. Hon'ble Supreme Court has also clarified that authority concerned may deviate from the proposed punishment disclosed in the show cause notice and impose different punishment that what was proposed earlier. Similar view has been taken by the three judge bench of the Hon'ble Supreme Court of India in the case of Ram Ratan (supra) case.
31. Further, as far as constitution of committee by the reviewing authority is concerned, simply on this basis it cannot be said that reviewing authority has not reviewed the matter on its own. In this respect, it is liable to be mentioned that in the notice itself, it has been recorded that there were a lot of such reviews to be done by the department. It is needless to say that such a cumbersome exercise cannot be done by a single person and for this several committees are to be formed for speedy disposal of the matter. Accordingly, in the instant case, committee was constituted and it submitted its report and thereafter the reviewing authority has conducted the review. Exercise done before review of the matter by the committee cannot be held as illegal as reviewing authority after receiving the committee's report and after going through it, has formed opinion as disclosed in the notice.
32. As regards to preparing of panel in the ratio of 1:5 is concerned, no such step has been taken in this matter. Appointing authority had straightway proceeded to issue appointment order in 35 | P a g e favour of the candidate placed at sl no. 5. Thus, there is a clear violation of DG instructions issued vide letter no. 22-12/2001-GDS dated 17.09.2003 and also vide letter no. 19-14/2010-GDS dated 25.06.2010. Upon minutely perusing the Grameen Dak Sewak (Conduct and Engagement) Rules, 2011, we are of the considered opinion that no specific mode or method for preparation of panel of candidates has been given in it. Thus, DG instructions of 2003 and 2010 will be applicable for that purpose. Deviating from such instructions of 2003 and 2010 goes to the root of the selection process and vitiates the same and certainly falls under the category of irregularity as defined in the Grameen Dak Sewak (Conduct and Engagement) Rules, 2011. For the sake of clarity, the relevant paragraph of the DG instructions of 2010 that deals with the method or mode of preparing the select panel of the candidates is quoted herein below:
"6. It has been decided that in all cases of future engagement of all categories of Gramin Dak Sevaks including the cases which are currently in process and selections not finalized, a select panel of the candidates may be drawn up based on the sole criterion of merit. The panel should be operated in the event of the following contingencies:
i. Refusal by the meritorious candidate ii. Resignation by the 1st candidate even after joining within one year
iii. Review made by the higher authority within one year The select panel will be in the proportion of 5 candidates for one vacancy i.e., 1:5. The Select Panel will be valid for one year from the date of finalization and after that it would lose its validity."
33. Similarly, as regards to the applicability of Grameen Dak Sewak (Conduct and Engagement) Rules, 2020 is concerned, since notice was given in the year 2019 and impugned order was passed in the year 2019 itself, Rules promulgated in the year 2020 cannot be applied in this matter.
34. Further, as regards to the check list said to have been prepared after the scrutiny of the application form is concerned, its perusal reveals that the details like application form number, candidate's name, etc. have not been mentioned in it. Thus, it is not ascertainable as to whether these check list(s) actually belong to the candidate to whom the applicant's counsel cites. Thus, Check List filed on behalf 36 | P a g e of the applicant's counsel cannot be relied upon for the aforesaid reasons. It may be noted here that appointing authority has cancelled the candidature of the candidates placed at sl no. 1,2,3 and 4 subsequent to which the candidature of the applicant was considered. In this regard, it is pertinent to record that the check list which has been appended by the applicant's counsel in the OA, a perusal of the same does not make it clear as to whether it actually belongs to the applicant or to any other candidate as no specific details as have been cited above are mentioned in it. Thus, it can be held that the appointing authority has wrongly rejected the candidature of the candidates placed at sl no. 1,2,3 and 4 and straightway proceeded to appoint the applicant. It can also be held that plea taken by the respondents that the appointing authority has ignored the candidature of the candidates placed at sl no. 1,2,3 and 4 thereby committing serious irregularity which goes to the root of the selection and vitiates the entire selection process, is acceptable.
35. Also, as far as the notice issued in the matter is concerned, learned counsel for the applicant has argued that notice is incomplete and non-speaking as names of the candidates who were over and above the applicant have not been disclosed and therefore, notice is illegal. It is pertinent to mention that minimum facts that are required to acknowledge the allegation leveled against the appointing authority have been elucidated in the notice and the applicant has also replied to it. Thereafter, the impugned order has been passed. Thus, submission raised on behalf of the applicant in this respect is not acceptable.
36. As regards to mentioning of wrong provision in the notice as well as in the impugned order as cited by the applicant's counsel is concerned, mere mentioning of wrong provision itself will not invalidate the notice as well as the impugned order. Facts mentioned in the notice and in the impugned order are sufficient to serve their purpose.
37. Thus, in view of the above deliberations, this Tribunal is of the considered opinion that there was no illegality in reviewing the 37 | P a g e engagement of the applicant by the reviewing authority and accordingly, no infirmity can be attributed to it. The review was carried out adhering to the provision enshrined in the GDS (Conduct and Engagement) Rules, 2011 wherein show cause notice was issued to the applicant to which his reply was sought and observed. In this regard, the show cause notice dated 22.08.2019 subsequent to which the termination order dated 27.01.2020 was passed, cannot be said to suffer from any illegality or perversity. Accordingly, the instant original application is dismissed as being devoid of merits. The effect and operation of the impugned order remains intact.
38. All associated MAs stand disposed of. No costs.
(Mohan Pyare) (Justice Om Prakash VII)
Member (Administrative) Member (Judicial)
(Ritu Raj)
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