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CASE NO.: Appeal (civil)  1021 of 2007

PETITIONER: Smt. Kiran Singh

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 27/02/2007

BENCH: C. K. Thakker & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T [Arising out of S. L. P. (C) No.11480-11481 of 2005]

Lokeshwar Singh Panta, J.

       Special leave granted.         This Civil Appeal is filed against the judgment and order  dated 19/12/2003 in CMWP No. 56142/2003 and order dated  28.01.2005 in CMRA No. 9847/2004 of the High Court of  Judicature, at Allahabad, whereby the High Court dismissed  the Writ Petition and Review Application filed by the appellant.         The relevant facts giving rise to the filing of the appeal  are as under:         The post of Extra Departmental Branch Post Master  (hereinafter referred to as ’EDBPM’) Unchagaon, District  Jaunpur, fell vacant on 01.01.1996 due to retirement of Sri  Raj Murthi Pandey on attaining the age of superannuation on  31.12.2005.  The vacant post of EDBPM was notified to  District Employment Officer, Jaunpur, vide Memo No. PFA- 490 dated 06.11.1995 issued by the Superintendent of Post  Offices, Jaunpur, requesting the former to sponsor the names  of minimum three and maximum five eligible candidates for  appointment to the post within a period of one month.   Pursuant to the demand, the District Employment Officer,  Jaunpur, on 13.11.1995 despatched a list of ten candidates  including the name of Smt. Neelam Pandey, respondent no. 5  herein, for consideration to the post in question.         The Selection Committee did not consider the name of  respondent No. 5.  She approached the Central Administrative  Tribunal (CAT), Allahabad Bench, Allahabad, by way of filing  O.A. No. 1 of 1996.  The CAT issued notice to the opposite  parties on 02.01.1996 and by an interim order permitted the  Superintendent of Post Offices to go on with the process of  selection, but the result of selection was directed not to be  declared until orders are passed by the Tribunal.         The Superintendent of Post Offices, Jaunpur, respondent  No. 4 herein, instead of resorting to select the candidates from  the names sent by the District Employment Officer, advertised  the post on 17.01.1996 by inviting applications from public in  general.  The appellant and respondent No. 5 both applied  afresh for appointment pursuant to the advertisement besides  five more eligible candidates.  Thereafter, respondent No. 4  vide his letter dated 18.04.1996 requested the District  Magistrate, Jaunpur, to get the inquiry conducted from the  concerned officers of Tehsil, Shahaganj, relating to character,  antecedents, status and sources of income of the appellant  and respondent No. 5.  The officer-in-charge for District

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Magistrate, Jaunpur, submitted his Report dated 04.06.1996  to respondent No. 4 with an endorsement in regard to the  status and property income per month of the appellant as well  as respondent No. 5.  After judging the comparative merits  including the essential eligibility criterion of possessing  adequate means of livelihood from the income, the Competent  Authority found the appellant to be more suitable candidate  and, accordingly, selected her for appointment to the post.  On  receipt of the appointment letter, the appellant joined the post  on 22.06.1996.            Respondent No.5 again approached the CAT by way of  O.A. No. 1041 of 1996 assailing the appointment of the  appellant on number of grounds.  Respondent No. 5 on a  misconception of the interim order dated 02.01.1996 earlier  passed by the CAT in O.A. No. 1 of 1996 with regard to the  selection of the appellant through the District Employment  Office terminated her appointment/services on 08.10.1996.   The appellant and the authorities filed separate counter  affidavits in opposition to Application No. 1041 of 1996 filed  before the CAT by respondent No. 5.  They stated that the  appointment of the appellant was duly made in accordance  with the Service Rules and Circular dated 06.12.1993 issued  by the Competent Authority.  However, on 19.12.1996 the first  Application being O.A. No. 1 of 1996, which was pending  before the CAT, came to be dismissed as wholly infructuous  and the interim order was also vacated.           On dismissal of O.A. No. 1 of 1996, the appellant was  again appointed to hold the post vide Memo dated 01.01.1997  of respondent No. 4.          In the meantime, some complaint was received in the  Office of Post Master General, Allahabad, respondent No. 2  herein, and after inquiry, respondent No. 2 issued directions  to respondent No. 4 to get the income certificate of respondent  No. 5 verified from the Competent Revenue Authority.   Accordingly, on 17.04.2000 respondent No.4 requested the  District Magistrate, Jaunpur, to do the needful.  The District  Magistrate, Jaunpur, vide his letter dated 13.02.2001  submitted the Report to respondent No. 4 whereby the  monthly income of respondent No. 5 was confirmed to be Rs.  1000/-.           The appellant continued on the post till O.A. No. 1041 of  1996 was decided by the CAT on 24.11.2003 and the  appointment of the appellant made on 01.01.1997 to the post  of EDBPM was quashed with a direction to the authorities to  appoint respondent No. 5 on the post within a period of one  month from the date of the receipt of the said order.           Being aggrieved by the order of the CAT dated  24.11.2003, the Department and the appellant filed two  separate writ petitions in the High Court of Judicature,  Allahabad, at Allahabad.  Writ Petition No. 9069 of 2003 filed  by the Department was dismissed by the High Court on  03.03.2004 and Writ Petition No. 56142 of 2003 filed by the  appellant was dismissed on 19.12.2003.  Again, the  Department and the appellant both filed Review/Recall  Application before the High Court.  From the records, it  appears that the Review/Recall Application filed by the  Department is still pending before the High Court, whereas the  Review/Recall Application No. 9847 of 2004 filed by the  appellant was rejected on 28.01.2005.         Hence, the appellant has filed this appeal challenging the  impugned orders of the High Court.         We have heard the learned counsel for the parties and  perused the material on record.           Mr. T.N. Singh, Advocate appearing on behalf of the  appellant, contended that the appellant was selected by the

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Competent Authority strictly following the existing Rules and  Circular dated 06.12.1993, which provides one of the eligibility  criteria or preference of income and ownership of property.   However, the CAT as well as the Division Bench of the High  Court have committed a grave and manifest error of law  quashing the appointment of the appellant for no valid  reasons.  He submitted that the appointment of the appellant  by the respondents/authorities on 01.01.1997 was in fact not  challenged by respondent No. 5 before the CAT, yet her  selection was set aside and respondent No.5, being not  eligible, has been ordered to be appointed against the post,  therefore, the order has resulted in miscarriage of justice to  the appellant.                   Per contra, the learned counsel for the contesting  respondent No. 5 has sought to support the judgment of the  Division Bench of the High Court to contend that admittedly,  respondent No. 5 stood first in the merit list having secured  66.30 per cent marks in the High School Examination as  against the appellant who secured 65.80 per cent marks and  that being the admitted position, the CAT has rightly quashed  the appointment of the appellant, which order has been  upheld by the High Court and this Court in exercise of its  powers under Article 136 of the Constitution of India will not  be obliged to go into the question of facts thereby praying for  the dismissal of the appeal.          Mr. B. Dutta, learned ASG appearing on behalf of other  respondents, supported and adopted the arguments of the  learned counsel appearing on behalf of the appellant and  contended that the appellant was selected by the Selection  Committee in accordance with the Rules/Instructions  governing the service conditions of the post in question and,  therefore, the order of the CAT as well as the High Court  are  manifestly erroneous and not sustainable.          We have given our careful consideration to the respective  contentions of the respective parties.           It is not in dispute that the appellant secured 65.80 per  cent marks in High School Examination as against respondent  No. 5 who secured 66.30 per cent marks in the said  examination.  The essential educational qualification for the  post of ED Sub- Post Masters and ED Branch Post Masters as  per the Rules is Matriculation.  The Assistant Director General  (Training) vide copy of communication No. 17-104/93 \026 Ed &  Trg., Department of Post, New Delhi, emphasized that in case  of appointment of ED Sub-Post Masters/ED Branch Post  Masters, preference may be given to those candidates whose  "adequate means of livelihood is derived from landed property  or immovable assets" if they are otherwise eligible for  appointment and the income of property in the name of the  guardians of the candidates will not make them eligible for  consideration for appointment as ED agents in the  Department.  On perusal of the letter dated 18.04.1996  submitted by respondent No. 4 to the District Magistrate,  Jaunpur, regarding verification of income and sources of  income of respondent No. 5, who is married to Sanjeev Kumar  Pandey, resident of Jaigaon Post Office and Tehsil Shahganj,  District Jaunpur, the Tehsildar Shahganj in his Report dated  22.04.1996 submitted that Smt. Neelam Pandey has fifteen  decimal of land in her name, which is unarable and the land is  full of rubbles (Kankar).  He further stated that the applicant  does not have any income from agriculture.                   In response to the letter No.P.F.A 499 Jaunpur dated  18.04.1996 addressed by respondent No.4 to the District  Magistrate, Jaunpur, the Tehsildar Shahganj reported on  22.05.1996 that Smt. Kiran, appellant herein, holds 32 1/2  130 decimal land in Gata No. and her monthly income is

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Rs.1,000/- and annual income is Rs.12,000/-.  The Selection  Committee, on receipt of the testimonials of the candidates  who appeared for interview to the post of EDBPM, found the  appellant suitable for appointment on the vacant post in ED  Branch in terms of the Service Rules for Postal ED Staff and  as per the criterion laid down by Assistant Director General  (Training), Department of Post, New Delhi, in Circular No.  STA/19/4/3 dated 06.12.1993.  The appellant after selection  has been continuously discharging her duties and functions  as EDBPM since 01.01.1997 till July 2004.            The CAT allowed the application of respondent No.5  merely on the sole ground that as respondent No.5 has  secured more marks in the High School Examination as  against the appellant but it has lost sight of the other  eligibility conditions contained in the Service Rules and the  Circular governing the selection of the candidate to the post in  question.  The High Court in its impugned orders has not  recorded independent reasons except to agree with the order of  the CAT.         In the facts and circumstances of the case, in our view  the order of the CAT which has been affirmed by the High  Court is manifestly erroneous and cannot be sustained.  The  appellant and respondent No.5 both have qualified the High  School Examination by securing first division.  The eligibility  and criterion for the selection of the candidate to the post of  EDBPM as per the Service Rules was not only the merit  between the two candidates in High School Examination but  the additional criterion was that the candidate must be one  who has "adequate means of livelihood derived from landed  property or immovable assets" if the candidate is otherwise  eligible for appointment.  The instructions governing the  eligibility of the candidates also provide that no weightage will  be given for any higher qualification.  The appellant has  fulfilled the essential qualification and required eligibility  criterion and as such her selection to hold the post in question  was valid whereas respondent No. 5 was not eligible to be  appointed on the post for lack of income criterion in terms of  the Circular.          In that view of the matter, the impugned judgment and  order of the High Court dated 19.12.2003 passed in CMWP  No.56142 of 2003 and order dated 28.01.2005 recorded in CM  Review/Recall Application No.9847 of 2004 are quashed and  set aside.  As a result thereof, the order dated 24.11.2003 of  the CAT in OA No.1041 of 1996 by which the application of  respondent No.5 has been allowed and appointment of the  appellant has been set aside, shall also stand quashed and set  aside.           In the result, this appeal is allowed accordingly.   Parties  shall bear their own costs.