REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5766 OF  2008  [Arising out of SLP© No.9424/2005]

T. Jayakumar                            … Appellant

Vs.

A. Gopu & Anr.                               … Respondents

J U D G M E N T

AFTAB ALAM,J.

1. Leave granted

2. A little  lapse by the respondent  authority (Respondent  no.2 before

this  court)  coupled  with  a  somewhat  unwarranted  interference  by  the

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Central Administrative Tribunal,  Madras Bench, that was affirmed by the

Madras High Court has led to a situation where this court is faced with the

competing rights of the appellant and respondent no.1.

3. The matter in controversy is the appointment as Extra Departmental

Branch Post Master of Kadambadi village. The concerned authority issued a

notice for filling up the position on 22 December 1999. The last date for

receipt of applications was 5 January 2000. Respondent no.1 submitted his

application that was received within time on 4-1-2000. On this application,

however,  he  omitted  to  put  his  signature.  Realising  his  mistake  he  sent

another  application  duly filled-up and signed by him on 4 January 2000

with the request that the second application may be treated as part  of the

first one. The second application sent by respondent no.1 was received by

the  authorities  after  5  January  2000,  the  last  date  for  submission  of

applications.  The  concerned  authorities  called  three  candidates  for

interview, including the first respondent, but in the end it was the appellant

who was selected and appointed as EDBPM, village Kadambadi.  

4. Respondent  no.1  challenged  the  selection  and  appointment  of  the

appellant before the Tribunal in O.A.no.346/2000. It was submitted on his

behalf  that  he was better  qualified than  the  appellant  since in  the SSLC

examination  he  secured  272/500  marks  compared  to  269/500  by  the

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appellant. He also owned a big house and sufficient agricultural land in the

village.  Hence,  the  action  of  the  respondent  authority  in  selecting  the

appellant  for  appointment  in  preference  to  him  was  quite  bad  and

unreasonable. On behalf of the respondent authority it  was stated that the

application of respondent no.1 that was received within time was invalid as

it did not bear his signature and his second application was received after

the  last  date  for  submission  of  applications.  That  being  the  position  his

candidature was not acceptable.  

5. The  Tribunal  did  not  accept  the  plea  taken  by  the  respondent

authority.  It  upheld  the  claim of  Respondent  no.1  and  by judgment  and

order  dated  23  April  2001  allowed  the  OA and  directed  the  concerned

authority to accept his application as received within time and to consider

his case for appointment as EDBPM.

6. The  judgment  and  order  passed  by  Tribunal  was  sought  to  be

challenged by the appellant before the Madras High Court in WP no. 11229

of 2001. Apparently at the time of admission of the writ petition the High

Court  stayed  the  operation  of  the  order  of  Tribunal  but  finally  the  writ

petition  was  dismissed  by  judgment  and  order  dated  1  February  2005.

Against the High Court order the appellant filed the SLP giving rise to this

appeal.   In  the  SLP  on  6  May  2005  this  Court  passed  an  order  for

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maintaining status quo as obtaining on that date. As a result of the interim

orders passed by the High Court and by this Court the appellant has been

able  to  continue  in  service  since  his  appointment  on  9  February  2000.

Another fact we are unable to ignore is that now the age of the appellant is

thirty eight years; in other words he has crossed the age bar for government

employment.

7. Coming now to the orders passed by the Tribunal and the High Court.

Both the tribunal and the High Court interfered in favour of respondent no.

1 but for slightly different reasons. The Tribunal did not take the view that

the first application submitted by the first respondent was valid even though

it was unsigned or that the second application cured the omission and the

lacuna in the first  application or even that  the second application should

have been accepted even though it was received beyond time. What seems

to have weighed with the Tribunal is that respondent no.1 was called for

interview along with the other two candidates whose applications were fully

in order and were received in time. The Tribunal took the view that having

called respondent no. 1 for interview it was no longer open to the concerned

authority to exclude him from consideration on the plea that his application

was  not  in  order/was  received  beyond  time.  It  appears  that  the  Tribunal

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summoned the relevant office record and found that on 9 February 2000 the

concerned authority made the following note:  

“In  response  to  the  Local  notification  7 applications  received.  Among  them  the applications received from R. Lakshmi (101c). R. Durairaj  (104C).  T.Selvakumar(105C)  and S.Durairaj  (106C)  after  the  last  date  fixed  on 05.01.2000 are not considered.

Only three candidates who have applied for the post within the last date fixed are brought into the tabular statement.”

8. In light of the note the Tribunal came to observe and hold as follows:

“Having treated the application of the applicant as an  application  received  within  the  last  date,  the first  respondent  cannot  go  back and say that  his application cannot be considered as the same was received  after  the  expiry  of  the  last  date.  The action  of  the  first  respondent  in  treating  the application  of  the  applicant  as  one  submitted within  the  last  date  in  this  note  shows  that  the original  application  received  on  04.01.2000  has been treated as an application submitted in time in view of the subsequent application duly signed by the applicant. The action of the first respondent in not selecting the applicant on the ground of delay in submitting the application is not just and proper under the given circumstances.”

The  High  Court  seems  to  have  taken  a  slightly  different  view.  It  has

proceeded on the basis that the concerned authority ought to have accepted

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the application of respondent no. 1 as deemed to have been received within

time. The  copy of  the  High  Court  order  supplied  to  us  is  full  of  errors

(presumably  typographical),  so  much  so  that  in  parts  it  is  almost

unintelligible. But the view taken by the High Court can be gathered from

paragraph 7 of the judgment that reads as follows

“No doubt,  the  first  application  of  the  petitioner (sic, respondent no.1) has become invalid as there is no signature, however, when the first respondent came to know of his fault,  she (sic) sent another one  application  with  signature  and  with  a requisition on 04.01.2000, i.e., within the expiry of the last date,  it should have been treated as part and parcel of the first application or added with the first  application as the first  respondent send the second application a requisition to the second respondent within the time stipulated.  When that was  not  done  by  the  second  respondent  and rejected the application of the first respondent, we are of the view that the first  respondent sent his application in time and it cannot be rejected and therefore  the  conducting  interview and it  cannot be  rejected  and  therefore,  the  conducting  of interview  and  appointment  of  the  petitioner  as EDBPM without the first  respondent, is arbitrary and against the principles of natural justice.”   

                                         (emphasis added)

9. We are unable to share either the view taken by the Tribunal or agree

with the approach of the High Court.

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10. We are not aware any principle of law under which once a candidate

is  allowed participation in the selection process the selection authority is

precluded from examining whether his application was complete, in order,

within time or otherwise acceptable. A defect in the application form that

renders the candidate ineligible might be overlooked in the initial screening

and as a result he may be called for interview and may get a chance to take

part in selection process  but  that  alone does not mean that the candidate

cannot be held ineligible for selection at a later stage once the defect in the

application  comes  to  light.  It  is  surely  open  to  the  Tribunal  to  examine

whether  the  reason  assigned  by  the  selection  authority  for  holding  a

candidate ineligible for selection was valid or unreasonable and arbitrary. If

the reason for excluding a candidate from the selection process is found to

be unreasonable or arbitrary the Tribunal may certainly intervene but if the

reason  itself  is  valid  the  tribunal  cannot  interfere  simply  because  the

candidate was allowed participation in the selection process by being called

for interview. The principle of estoppel has no application in such a case.

11. We are equally unable to appreciate the approach of the High Court.

In the facts of the case it cannot be said that the decision of the concerned

authority not to accept any of the two applications of respondent no. 1, the

first being invalid for want of signature and the other being beyond time,

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was totally unreasonable and arbitrary. As a matter of fact the High Court

has not come to any such finding. And yet the High Court observed that the

second application ought to have been treated as ‘part and parcel’ of the first

application  and thus  substituted  its  own view in  the  matter  for  the  view

taken  by  the  respondent  authority.  Such  an  approach  might  have  been

permissible  for  the  departmental  appellate  authority  (provided  there  was

one) but it was plainly beyond the scope of judicial review.

12. In the facts of the case we are satisfied that the concerned authority

had  not  exercised  its  discretion  unreasonably  and  arbitrarily  in  rejecting

both the applications submitted by respondent no.1 and any interference in

the matter was hardly called for by the Tribunal or the High Court.          

13.  On a careful consideration of the rival contentions and the materials on

record  we  are  unable  to  sustain  the  orders  of  the  High  Court  and  the

Tribunal.   The two orders are, accordingly, set aside.

14. This leaves us with respondent no.1 who is hopefully pursuing the

matter for over eight years. The Tribunal and the High Court by interfering

in his favour naturally gave him hope and expectations that he would be

harbouring  for  eight  years.  We  also  cannot  overlook  the  fact  he  was

excluded from consideration simply because he inadvertently omitted to put

his signature on his application form. Having regard to the special facts of

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the case the concerned postal authorities are directed to find out a suitable

vacant position against which respondent no.1 may be adjusted. In case no

suitable post is available at present he should be accommodated in the next

vacancy of EDBPM arising in future.

15. This  appeal  is  allowed  subject  to  aforesaid  observations  and

directions.  

………………… ………….J. [Tarun Chatterjee]

   ……………………… …….J. [Aftab Alam]

New Delhi, September 22, 2008.

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