17 December 1996
Supreme Court
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BALIRAM PRASAD Vs U O I

Bench: N.P. SINGH,S.B. MAJMUDAR
Case number: C.A. No.-016753-016753 / 1996
Diary number: 9585 / 1995
Advocates: Vs M. K. DUA


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PETITIONER: BALIRAM PRASAD

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       17/12/1996

BENCH: N.P. SINGH, S.B. MAJMUDAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      S.B. Majmudar. J. Leave granted.      With consent  of  learned  advocates  representing  the respective parties the appeal was heard finally and is being disposed of by this judgment. The short question involved in this judgment. The short question involved in this appeal is as to  whether the  appointment of  respondent no.7 as Extra Department Branch  Post Master,  bypassing the appellant was legally  justified   or  not.   The  Central  Administrative Tribunal, Patna  Bench, Patna has taken the view that though the appellant was more qualified to be appointed on the said post respondent  no.7 was rightly appointed as the appellant was disqualified due to the fact that his cousin brother was already working  in the same Post Office as Extra Department Delivery Assistant.  Consequently the Tribunal dismissed the appellant’s application  O.A.192 of  194 and  confirmed  the appointment of respondent no.7 on the said post.      Learned counsel  for the  appellant has  contended that the aforesaid  reasoning adopted by the Tribunal is patently erroneous and  consequently the  decision  of  the  Tribunal deserves to be set aside.      Learned counsel  for respondent  no.7, who  is the main contesting respondent,  on the other hand submitted that the Tribunal  was   justified  in   dismissing  the  appellant’s application both  on the  ground of limitation as well as on merits. He  submitted that  respondent no.7 was appointed on 16th July  1992. If  any grievance  was to be made about the appointment of  respondent no.7  by the  appellant then  the application should have been moved within one year, that is, by 16th July 1993. Instead it was filed in January 1994. The appellant had  failed to  make out  any sufficient cause for not filing  the said  application in time. The delay for the period from August 1993 to January 1994 remained unexplained and was  rightly not  condoned by the Tribunal. On merits it was submitted  that the  authorities had taken a decision on 17th October  1966 to  the effect  that employment  of  near relatives in  the same  office was  to  be  avoided  and  as appellant’s cousin  brother was  already working in the same Post Office,  namely, the  Branch Post Office, the appellant

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could  not   be  appointed   even  though  he  may  be  more meritorious than respondent no.7.      In our  view the  Tribunal was  patently  in  error  in dismissing the  application of  the appellant  both  on  the ground of  limitation as  well as  on merits.  So far as the question of  limitation is  concerned it  is true  that  the appointment  of   respondent  no.7   was  effected   by  the authorities  on   16th  July   1992  and   consequently  the application could have been filed before the Tribunal within one year  from that  date. But  the  appellant  had  already produced before  the Tribunal  material to  indicate that he was not well from 20th August 1993 and he had recovered only by the  end of December 1993. We fail to appreciate how this aspect was  at all  relevant. Learned counsel for respondent no.7 also rightly submitted that what was to be explained by the appellant  was the  delay from  August 1993  to  January 1994. If  that is  so the appellant had already produced the Medical Certificate  showing his  illness from  20th  August 1993 to  22nd December 1993. If this period is excluded then the delay  in filing  the application  remains minimal which deserves to  be condoned  in the  interest of  justice.  We, therefore, hold  that the  appellant had made out sufficient and the said delay deserves to be condoned. That takes us to the merits of the controversy.      The Tribunal  has itself  noted  that  as  compared  to respondent no.7  the appellant  was more meritorious. He had obtained 546  marks in  the first  division in Matriculation examination as compared to respondent no.7 who had passed in third division  and got  404 marks. In Class VII examination the appellant  had got  468 marks  while respondent no.7 had got 220 marks. The appellant’s annual income was Rs.17,000/- while respondent  no.7’s annual  income was  Rs.7,500/-. The Tribunal has  rightly noted  that they were impressed by the high marks  secured by  the  appellant  and  in  the  normal circumstances has  should have  been the only choice for the post. However  according to  the  Tribunal  there  were  two handicaps from  which  the  appellant  suffered.  The  first handicap was  that his  cousin  brother  Bhola  Prassad  was working in  the Post  Office as  Extra  Department  Delivery Assistant and  the second  handicap was about limitation. We have already  dealt with the second handicap which according to the Tribunal was liable to non-suit the appellant. In our view no  such handicap  remained as  the delay in filing the application deserves  to be  condoned  in  the  interest  of justice and we have done so. So far as the other handicap is concerned  it   is  the  only  handicap  which  remains  for consideration. In  our view  it is  no handicap  at all. The decision of the authorities dated 17th October 1966 reads as under:      "EMPLOYMENT of  near  relatives  in      the  same  office  to  be  avoided.      Instances have  come to light where      very  near   relations  have   been      appointed to  work as  ED, BPM, ED,      DA or  ED Mail  Carrier in the same      office. As this is fraught with the      risk of  frauds, etc.,  this should      be avoided."      It is  difficult to appreciate how pursuant to the said decision the  appellant  could  have  been  treated  as  not qualified to  be appointed  as Extra  Department Branch Post Master in the Post Office. His cousin brother was working on a lower  post of  Extra Department  Delivery  Assistant.  He would be  performing a  manual work of effecting delivery of postal articles  to the addressees. Only because appellant’s

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cousin brother was working as a Peon in the said Post Office going such  manual work  it passes our comprehension how the appellant could  not be appointed as Extra Department Branch Post Master  in the  said Post  Office. There is no rhyme or reason underlying  such an  approach  on  the  part  of  the authorities. To  say the least it would be totally arbitrary and irrational.  Even if there may be any risk of fraud etc. even non-relatives  can be  guilty of  frauds while  on  the contrary relatives may not be brone to such frauds. But even if  they  are  appropriate  procedure  can  be  adopted  for detecting such  frauds and  bringing the  guilty to  book or even for  effectively checking  such  tendencies  by  having appropriate vigilance  machinery. But to refuse to appoint a more meritorious  candidate only  on  the  ground  that  his cousin brother was working in the same Post Office would, in our view,  be totally  an arbitrary  exercise of power which cannot be  countenanced on  the touchstone  of Article 14 of the Constitution  of India. We asked learned counsel for the appointing authority  as  to  whether  there  is  any  other disqualification of the appellant save and except the ground of his cousin brother being working as Peon doing the manual work in  the Post  Office. He fairly stated that there is no other ground  excepting this  ground. In  our  view  such  a ground cannot  be sustained  from any  viewpoint and must be held to  be totally  arbitrary and  irrational. The Tribunal was not justified in nonsuiting the appellant on merits only on  this   ground.  Learned   counsel  for  respondent  no.7 submitted that  even if  the appellant  has a  good case  on merits he  should not  be disturbed  as he is working at his own residence  as Extra  Department Branch Post Master since about four  years and  more. That is neither here nor there. Once it  is found that the appellant was more meritorious as compared to  respondent no.7  ad deserves to be appointed on merits and  his  claim  was  not  considered  on  a  totally irrational  and  arbitrary  ground  the  legal  consequences resulting from  the voiding of such an illegal exercise must follow.      In the  result this appeal is allowed. The judgment and order rendered by the Central Administrative Tribunal, Patna in O.A.  No.192 of  1994 are quashed and set aside. The said application  is   allowed.  The   impugned  appointment   of respondent no.7  as Extra  Department Branch  Post Master is quashed and  set aside.  The  authorities  are  directed  to appoint the appellant as Extra Department Branch Post Master in the  place of  respondent no.7  and allow  him to work as such  in  accordance  with  rules  and  regulations  of  the Department, by  running the  Post Office on his premises. In the facts  and circumstances  of the  case there  will be no order as to costs.