Central Administrative Tribunal - Ernakulam
Anil Kumar vs The Superintendent Of Post Offices on 4 October, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. NO. 885 OF 2010
Tuesday, this the 4th day of October, 2011
CORAM:
HON'BLE Dr.K.B.S RAJAN, JUDICIAL MEMBER
HON'BLE Ms. K. NOORJEHAN, ADMINISTRATIVE MEMBER
Anil Kumar, aged 38 years
S/o.Chandrasekharan Pillai
Aswathi Bhavan
Panayancherry
Anchal
Kollam District - Applicant
(By Advocate Mr.U Balagangadharan)
Versus
1. The Superintendent of Post Offices
Pathanamthitta Division
Pathanamthitta District
2. The Inspector of Post Offices
Punalur Sub Division
Punalur
3. The Branch Post Master
Chembanaruvi, Punalur
4. Mr.Sujith B.S
G.D.S Mail Deliverer, Chembanaruvi Branch Office
Punalur, Residing at Koppara Puthen House
Tholikkadu Post, Punalur
5. Chief Post Master General
Trivandrum - Respondents
(By Advocate Mr.Varghese P.Thomas for R 1-3 and R 5 &
Mr.P.C Sebastian for R4)
The application having been heard on 21.09.2011, the Tribunal on
04-10-2011 delivered the following:
O R D E R
HON'BLE Dr.K.B.S RAJAN, JUDICIAL MEMBER
1. The issue is simple. Respondent No. 2 notified the vacancy to the post of Gramin Dak Sevak Mail Deliverer at Chembanaruvi Post Office vide Annexure A-1 notification dated 11-11-2008. In response to the said notification, a few applications including that of the applicant herein were received in addition to certain sponsorship from the Employment Exchange. This notification was later on cancelled and another notification was issued in response to which a few more applications were received. Ultimately, on scrutiny of these applications, the respondents have selected the fourth respondent and had appointed him as GDSMD, Chembanaruvi Post Office. The applicant was not selected. The applicant had, on coming to know about the cancellation of the earlier notification and issue of second notification made enquiries through R.T.I. And the respondents have given full particulars as to those who had applied for in response to the two notifications and also spelt out the reasons for cancellation vide Annexure A-3. The applicant has filed this OA challenging the issue of second notification and selection of the fourth respondent.
2. Respondents have contested the O.A. They have given the reason for cancellation of the earlier notification to the effect that the first notification was not duly displayed and the response being not sizeable, certain complaint was received and hence, after conducting an inquiry, it was decided to renotify the vacancy. It has been stated in the counter that the applicant was also considered for selection but since he did not come in merit he was not selected. Fourth respondent in his reply has stated that having participated in the selection but failed, the applicant has challenged the selection, which is impermissible.
3. Counsel for the applicant argued that there were sufficient number of applications received in response to the first notification and on the basis of the same itself, the respondents ought to have considered the selection. However, in order to favour some person, the said notification was cancelled and another notification was issued, which resulted in a more meritorious candidate,( being a relative of one of the employee too) applying for the said post and consequently the said individual (Respondent No. 4) was selected.
Counsel for the applicant referred to a decision of the Apex Court in the case of Union of India and Others vs Rajesh U.P. Puthuvalnikathu and Another (2003) 7 SCC 285 to hammer home his point that cancellation is illegal. The said decision read inter alia as under:-
....in the absence of any specific or categorical finding supported by any concrete and relevant material that widespread infirmities of an all-pervasive nature, which could be really said to have undermined the very process itself in its entirety or as a whole and it was impossible to weed out the beneficiaries of one or the other irregularities, or illegalities, if any, there was hardly any justification in law to deny appointment to the other selected candidates whose selections were not found to be, in any manner, vitiated for any one or the other reasons. Applying a unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive information that except 31 of such selected candidates, no infirmity could be found with reference to others, is nothing but total disregard of relevancies and allowing to be carried away by irrelevancies, giving a complete go-by to contextual considerations throwing to the winds the principle of proportionality in going farther than what was strictly and reasonably to meet the situation.
4. At the time of argument by the counsel for the applicant, as the records of selection were not held by the counsel for the respondents, the same was called for and on production of the same, counsel for the respondents (both the official as well as party respondent) were heard. The respondents have justified the cancellation of the earlier notification and selection on the basis of the subsequent notification.
5. Arguments were heard and documents perused. Records produced indicate that though notification appeared to have been exhibited in the Branch office, the number of applications received from the concerned village Chembanaruvi was only 4, of which two of were from the sons of the BPM, Chembanaruvi. It was concluded that either notification was affixed for a very short time or else it was affixed beneath some other applications. On the direction of the higher authorities, the earlier notification was followed by another.
6. From the information received by the applicant which has been annexed to the OA, it is observed that apart from employment sponsorship, six applications were received and the marks obtained by such applicants ranged between 21.6% to 42.33%. Instead, in response to the further notification, as many as eleven applications were received and the marks obtained by the candidates ranged between 36.33% to 60.16%. The first five on the basis of merit (marks obtained in SSLC) were called for verification and cycle test and the highest scorer i.e. the fourth respondent has been selected and issued with the appointment order. This individual had taken over the said post as early as July, 2009. The OA had been filed in October, 2011, with an application for condonation of delay.
7. The reason given for cancellation as per Annexure A-3 is as under:-
Public complaint from the local candidates received that the notification was not displayed in the Chembanaruvi Post Office. Even though the BPM stated to have displayed, the notification, there was a slight suspicion that the same was not properly done, as the number of candidates applied for very less in number and also among the applications received, 2 are the sons of the BPM Chembanaruvi, 1 brother of Mail Overseer of Punalur Sub Division. Hence, from the instruction of Superintendent of Post Offices, Pathanamthitta, that renotification may be made even if slightest suspicion exists, the renotification was made. It was confirmed as the receipt of the number of applications on basis of the second notification.
8. Cancellation in this case was on account of the fact that there were only four applications two of which are from the sons of the very Branch Post Master. It is to be noted here that one of the requirements is that the selected candidate should reside in the delivery jurisdiction of the Chembanaruvi post office. Renotification brought a larger number of applications. It has been held in the case of Excise Supdt. Vs K.B.N. Visweshwara Rao (1996) 6 SCC 216 as under:-
In addition, the appropriate department or undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates.
9. Thus, wider choice could be had by re-notification of the vacancies. The re-notification yielded better and more meritorious candidates being considered and selected. Further, even if it is assumed that the re-notification is not proper and the selection ought to be within the applications received in response to the initial notification, yet, it is not the applicant who had secured the highest mark amongst those limited number of persons who had applied. Argument of the counsel for the applicant that if the first in the merit position declined, the offer would go to the applicant is far fetched. In addition, the application has been filed much after the fourth respondent had taken over the post. Thus, though the application is accompanied with an application for condonation of delay, the grounds for delay are not convincing.
10. In view of the above, we do not find any illegality or irregularity in issue of the second notification and selection on the basis of the second notification. None of the vested rights of the applicant has been hampered by such renotification. Hence, the OA being devoid of merits, is dismissed.
11. No cost.
(Dated, this the 4th day of October, 2011.)
K. NOORJEHAN DR.K.B.S RAJAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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