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PETITIONER: JAHAR SINGH

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       13/09/1996

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) KURDUKAR S.P. (J)

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.K. MUKHERJEE. J.      Special Leave  granted. Heard  the learned  counsel for the parties.      At all  material times the appellant was - and still is - an  employee of  the  Savings  Bank  Control  Organization (SBCO),    Uttar  Pradesh  Circle,  under  the  Ministry  of Communications, Department of Posts, New Delhi. In May, 1992 while working  in the  Agra Head  Post Office he appeared in the examination  held for  appointment of Accountants in the Post Office  (PO) and  Railway Mail  Services (RMS); and the Senior Superintendent  of Post Officers, Agra Division, Agra vide his  letter No.  82/Exam/PO and RMS/Accountant/92 dated November 30,  1992 informed  him that  he had  qualified for that  post.   The  appellant,   however,  did  not  get  any appointment to  the post  of Accountant in spite of his such qualification and,  on the  contrary, on August 26, 1993, he received a  copy of  letter dated July 23, 1993 sent by Shri A.K. Kaushal, an Assistant Director General in the office of the Director  General (Posts),  New Delhi, to Shri Jagadamba Singh ADOS (Rectt.) attached to the office of the Chief Post Master General,  U.P. Circle, intimating him that as he (the appellant was  working in  SBCO as  an LDC  (Lower  Division Clerk) he  was not  eligible to  appear for  the PO  and RMS Accountant examination  and his  candidature may be canceled immediately. Since  this letter  has an important bearing on this appeal we quote the same in extenso :-      "A.K. KAUSHAL      ASST. DIR. GENL. (SPN)      141-230/92-SPB-II           23.7.93      Dear Shri Singh,           Please  refer   to  your  d.o.      letter   no.   Rectt./M-67/May-92/3      dated 4.5.93  regarding posting  of      Shri Jahar  Singh, SBCO  Agra H.P.O      as Accountant.      2. The  water  has  been  examined.

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    Since Shri  Jahar Singh was working      in SBCO  as LDC he was not eligible      to  appear   for  the   PO  &   RMS      Accountant Exam  as per  rules. The      candidature of Shri Jahar Singh may      be  canceled   immediately  and  he      cannot,  therefore,  be  considered      for appointment as an Accountant.      With best wishes,      Yours sincerely      (A.K. KAUSHAL)      Shri Jadamba Singh,      A.D.O.S. (Rectt.)      O/o the Chief Postmaster General,      U.P. Circle,      LUCKNOW      Copy to :      1. The PMG Agra Region, Agra.      2. Shri Jahar Singh, PA (SBCO) Agra      H.P.O with  reference to his letter      dated 28.3.1993 addressed to Member      (D),  Department   of  Posts,   Dal      Bhavan, New Delhi.      (A.K. KAUSHAL)      Asstt. Director General (SPN)"      (emphasis supplied)      Against  such   cancellation  of  his  candidature  the appellant made  representation to  the Director  General  of Posts, New  Delhi which  was  rejected.  He  then  filed  an original application in the Central Administrative Tribunal. (CAT) Allahabad  Bench wherein  he asserted  that though his initial appointment in 1983 was an LDC in SBCO, since August 1, 1991  he was working there as Personal Assistant (PA) and the permission  that was  granted to  him to  appear in  the examination  for   appointments   as   an   Accountant   was unqualified -  and not provisional. He, therefore, submitted that   the respondents  were not  justified in rejecting his claim for  appointment to that post after his success in the examination.      In   contesting   the   application   the   respondents reiterated that  the appellant  was working as an LDC at the time he  appeared for  the examination. The other contention that was  raised on  their behalf  was that  even the PAs of SBCO acquired  an identity  of its  own after  it (SBCO) was reorganized with effect from August 1, 1991 with a different and distinct channel of promotion which did not entitle them to become Accountants in PO and RMS under the extant Rules.      In disposing  of the  application the Tribunal observed though from  the admitted  facts of the case it was apparent that the  appellant was allowed to appear in the examination for appointment  as an  Accountant by mistake as he belonged to as  separate cadre, the respondents were not justified in canceling his  candidature as  he was  a bona fide candidate and there was no lapse on his part. It further observed that no rules  or circulars  were brought  to  its  notice  which empowered  the   respondents  to   cancel  his  candidature. Accordingly, the Tribunal set aside the order dated July 23, 1993  canceling   the  candidature   of  the   appellant  as Accountant and  all orders  made pursuant  thereto.  Inspire thereof, the Tribunal did not grant the relief sought for by the appellant  on the  ground that  he had become ineligible for promotion  to  the  post  of  Accountant  by  virtue  of separation of cadres of Assistants of SBCO from those PO and RMS. Dissatisfied with the above order the appellant filed a review application  contending that after having quashed the

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order of  cancellation of  his candidature  the Tribunal was not justified  in refusing  him the  consequential relief of being appointed  as Accountant  in PO and RMS. The Tribunal, however, rejected  the application  observing  that  even  a defective reasoning  of an order could not be made the basis for setting  aside the  same in review. Hence this appeal at the instance of the appellant.      Besides, reiterating  the contentions raised before the Tribunal Mr.  Murlidharan, the  learned  submitted,  relying upon  the   averments  made   by  the   appellant   in   the supplementary affidavit  he filed in this Court, that in the contention of  the respondents  that PAs  of SBCO  were  not eligible for  appointment to  the post  of Accountants in PO and RMS was patently untrue for in the following year (1993) also PAs of SBCO were permitted to appear in the examination held   for the above post. In opposing the above contentions Mr. Choudhary,  the learned Senior Counsel appearing for the respondents, assailed  the finding  of the Tribunal that the appellant was  not entitled to the post of Accountant in the PO and  RMS, as SBCO has a distinct identity and separate of promotion.      To appreciate the respective contentions of the parties we have  carefully gone  through  the  entire  materials  on record and the only conclusion we draw therefrom is that the respondents have  taken different  and contradictory  stands only to  forestall the   claim  of the  appellant  and  Shri Kaushal, who  was filed affidavits on their behalf, has made patently incorrect and untrue statements therein . From a  cursory glance  of the  letter dated  July 23,  1993 written by  Sri kaushal  (reproduced earlier) it is apparent that the  only ground that was canvassed by the  respondents to cancel  the candidature  of the appellant was that he was working in  SBCO as  LDC. In the affidavit that Shri Kaushal filed in this Court on December 9, 1995, while opposing  the special leave petition of the appellant, he reiterated.      "He   (the    appellant)    wrongly      mentioned   in    his   application      (obviously   referring    to    his      application seeking  permission  to      appear in  the examination) that he      was    Postal     Assistant     and      inadvertently he was allowed to sit      in the  examination .  When it  was      realised that  the permission given      to him was contrary to the rules it      was rightly  canceled and naturally      he  was   not   entitled   to   any      consequential benefits."      That the  above stand of the respondent, as put forward through the  affidavit of Shri Kaushal, is unfounded will be apparent, first  from the  letter dated July 23, 1993 itself wherein, while  indication that  a copy  of the  letter  was being forwarded  to the  appellant his designation was shown as PA (SBCO) Agra HPO - and not LDC - and secondly, from the following statement  made by  Shri Kaushal in paragraph 3 of his affidavit filed in this Court in March 29, 1996.      "It   is    submitted   that    the      petitioner Sri  Jahar  Singh  is  a      Postal Assistant  in  Savings  Bank      Control Organization ..........."      Since the  post the  appellant was holding was made the sole basis for canceling his candidature as the letter dated July 23,  1993 clearly  demonstrates the above discussion of ours would  have been sufficient to allow this appeal but as later   on   the   respondents   took   the   organisational

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ineligibility of  the appellant to appear in the examination as a  further ground  for such cancellation we advert to the same. In  canvassing this  ground it has been stated by Shri Kaushal in the affidavit on December 9, 1995 as under :      "It  is   further  submitted   that      according to  Rule  273  of  Postal      Manual Vol.  IV  Postal  Assistants      and  Sorting   Assistants,  Railway      Mail  Service   are  eligible   for      appearing  in  the  examination  of      Post  Office   and   Railway   Mail      Service Accountants. The petitioner      belongs  to   Saving  Bank  Control      Organization Unit  of  Post  Office      and thus  he was  not  entitled  to      appear in the said examination held      in May,  1992. The  petitioner (the      appellant)    was     inadvertently      permitted    because     on     his      application form he had written his      designation  as  Postal  Assistant,      SBCO."      Apart from  the above  Rule,  reliance  has  also  been placed on  a circular  dated July  26, 1991  issued  by  the Assistant Director General, Government of India, Ministry of Communications, Department  of Posts,  which refers  to  the proposed reorganisation  of the SBCO with effect from August 1, 1991  and particular emphasis laid on Para (viii) thereof which  reads   that  "Consequent  upon  reorganisation,  the distinct identity  of the SBCO will be maintained and Postal Assistants (SBCO)  will  not  be  interchangeable  with  the Postal Assistants of the Post Office."      The above  additional ground  of the respondents so far it seeks  to justify  the cancellation of the candidature of the appellant  as an  Accountant even  after  he  was  given permission to  appear in  the examination  in which  he came successful is  also without  any substance.  The averment in the  above   quoted  paragraph   that  the   permission  was ’inadvertently’ granted  because the  appellant had wrote in his   application form  that his designation  was P.A., SCBO is patently  incorrect for on the showing of the respondents (as discussed  earlier) the appellant was holding that post. Besides, in   spite of the above Rules and Circular, two PAs of SBCO,  Auriya Office,  namely, Satya Prakash and H.C. Ram were permitted  to appear in the PO and RMS examination held in the  year 1993  for appointment of Accountants as will be evident  from  the  supplementary  affidavit  filed  by  the appellant on  February 23, 1996. It is pertinent  to mention here that  in the affidavit that Shri Kaushal filed later on March 29,  1996, he  did not  dispute the above assertion of the appellant,  nor give  any explanation  as  to  why  such permission was  granted to  them in spite of above Rules and Circular.      For the  foregoing discussion  we  quash  the  impugned order dated  July 23,  1993 and  direct the  respondents  to grant all the benefits which the appellant would be entitled to consequent  upon his  having been  declared successful in the examination  held on  May 22,  1996. The  appeal is thus allowed with costs, quantified at Rs. 5,000/-