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CASE NO.: Appeal (civil)  6275 of 2004

PETITIONER: SUMAN VERMA

RESPONDENT: UNION OF INDIA & OTHERS

DATE OF JUDGMENT: 24/09/2004

BENCH: Arijit Pasayat & C.K. Thakker

JUDGMENT: J U D G M E N T

(Arising from Special Leave Petition (civil) No. 8809 of 2004)

Thakker, J.

       Leave granted.

The present appeal is filed against the judgment and order dated  April 2, 2004 passed by the High Court of Judicature at Patna in  C.W.J.C. No.4106 of 2004.  By the said order, the High Court  confirmed the order passed by the Central Administrative Tribunal  ("CAT" for short) Patna Bench, Patna on March 9, 2004 in Original  Application No.307 of 1997.

The case of the appellant herein is that she passed her  Matriculation Examination from Bihar School Examination Board,  Patna in 1983 in Second Division securing 531 marks out of 900  marks.  She passed B.A. with Honours from Muzaffarpura in 1st  Division in 1988.  In the year 1996, she got her name enrolled with  the Employment Exchange. She was possessing agricultural land of  10 Kathas having purchased from one Dwarka Prasad by a registered  sale deed dated 1st March, 1995.  She was also having a residential  house in village Khajuhathi.   

According to the appellant, a post of Extra Departmental  Branch Post Master ("EDBPM" for short), Khajuhathi Post Office,  Block Manjhi fell vacant as the EDBPM, Post Office, Khajuhathi got  promotion.  A notification was, therefore, issued for filling of the said  vacancy and names of eligible candidates were called from Regional  Employment Exchange, Chhapra vide a letter dated 14th October,  1996.  According to the appellant, nine names were sent by the  Employment Exchange.  The appellant was found eligible, qualified  and most suitable.  Accordingly, the appellant was appointed to the  said post by an order dated December 13, 1996.  Since then, she is  working as EDBPM, Khajuhathi.

The appellant stated that though respondent No.6 was neither  eligible nor qualified to be appointed as EDBPM, she was aggrieved  by the appointment of the appellant and the action taken by the  authorities and approached the Central Administrative Tribunal  (CAT) by filing Original Application challenging the appointment of  the appellant.  It was contented by respondent No.6 before the CAT  that though she was eligible and qualified and was more meritorious  inasmuch as she had obtained 584 marks out of 900 marks as against  the appellant who had obtained 531 marks at the Matriculate  examination, she was not appointed.  It was also her case that she

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possessed agricultural land as required and proof of having possessed  such agricultural land was produced by her.  It was, therefore,  obligatory for the authorities to consider her case and she ought to  have been preferred as against the appellant.   

The CAT after considering the rival contentions of the parties,  allowed the petition holding that the case of the applicant before the  CAT (respondent No.6 herein) had been ignored on flimsy grounds  keeping aside the merits of the contesting candidates.  Resultantly, the  order dated 13th December, 1996 was set aside by the CAT and a  direction was issued to appoint respondent No.6 (applicant before the  CAT) forthwith.  The Tribunal also observed that since respondent  No.6 (appellant herein) was working since several years, on account  of delay in disposal of the Original Application, the authorities were  directed to consider if she could be appointed "in the vicinity if and  when such vacancy arises" provided she is otherwise fit and eligible  for such appointment.

Being aggrieved by the order passed by the CAT, the appellant  approached the High Court of Patna.  The High Court, however,  confirmed the decision of CAT and dismissed the petition.  Against  the said decision, therefore, the appellant has approached this Court.   

We have heard the learned counsel for the parties.  Mr.  Goswami, learned senior counsel for the appellant strenuously urged  that respondent No.6 was neither eligible nor qualified to be appointed  as EDBPM and she was, therefore, rightly ignored by the authorities.   Drawing the attention of the court to the notification issued by the  authorities, the counsel submitted that it was absolutely necessary that  the candidate must have possessed sufficient landed property in  his/her name and he/she was required to produce the relevant record  in token of having possessed such property.  In the instant case,  respondent No.6 did not possess immovable property and the said fact  was duly considered by the authorities in its proper perspective and a  decision was taken that she was not eligible.  The CAT ought not to  have interfered with such a decision and should not have issued  direction to the authorities to appoint her.  The order, therefore,  deserves to be set aside.  It was also argued that a totally irrelevant  and extraneous factor was kept in mind by CAT of marks obtained by  two candidates at the Matriculation Examination.  The counsel  submitted that the necessary educational qualification was passing of  Matriculation Examination and not marks obtained in the said  examination.  Once a candidate is eligible, his case is required to be  considered in accordance with the guidelines and norms fixed by the  Department and there can be no "preference" of one over the other.   The said fact, therefore, should not have weighed with the authority  and on that ground also, the decision is vulnerable.  It was contended  that a direction was issued by CAT to "appoint" respondent No.6.  No  such direction could have been issued by CAT even if it was satisfied  that the action taken by the authorities was not in consonance with  law.  The limited direction which could be issued could be to set aside  the decision taken by the authorities and to consider the matter afresh  in accordance with law.  Finally, it was submitted that the appellant  was found to be most suitable by the authorities and was appointed as  early as in 1996.  About eight years are over and she is working as  EDBPM.  If at this stage, the appointment is cancelled, serious  prejudice will be caused to her.  It was, therefore, urged that even if  this Court is of the view that the action taken by the authorities could  not be termed legal or lawful, in peculiar facts and circumstances of  the case, the appointment of the appellant may not be cancelled.

Mr. Harish Chandra, learned senior counsel for the Union of  India supported the case of the appellant.  It may, however, be stated  that the authorities have not challenged the decision of CAT before  the High Court or in this Court.

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Mr. Amit Pawan, the learned counsel for respondent No.6, on  the other hand, supported the order passed by the Tribunal and  confirmed by the High Court.  It was urged that respondent No.6 was  eligible and qualified.  She possessed agricultural property as per the  requirement of the Notification.  Referring to the conditions in the  Notification issued by the Department of Posts, the counsel submitted  that respondent NO.6 fulfilled all the conditions mentioned in the  Notification.  She was the permanent resident of the village.  She had  passed her Matriculate Examination and secured more marks than the  marks secured by the appellant herein.  She had adequate means of  income from independent source of livelihood and necessary  certificate had been produced by her.  It was stated that pursuant to the  gift deed dated October 14, 1996, she became the owner of  agricultural land.  The last date for submission of the applications was  12th November, 1996.  Respondent No.6 became owner of agricultural  land on October 29, 1996, i.e. before the last date of submission of  application.  The mutation entry, however, could be made on  November 22, 1996.  It is thus clear, submitted the counsel, that  respondent No.6 became owner of immovable property prior to the  last date of submission of application, but the mutation entry could be  effected in Revenue Record subsequently.  But from that, it cannot be  said that respondent No. 6 did not possess agricultural land on the last  date of submission of application.  Entry in Revenue Record is  immaterial so far as the title or ownership of the land is concerned.   That fact, therefore, could not have been considered by the authorities  and the CAT committed no error of law or of jurisdiction in setting  aside the action of the authorities and directing them to appoint  respondent No.6 as she was more meritorious.  It was also submitted  that since the relevant education qualification is Matriculation, marks  obtained at the said examination would indeed be relevant and the  Tribunal was wholly justified in placing reliance on marks obtained at  the said examination.  The order, therefore, required no interference.   It was also confirmed by the High Court.  Respondent No.6 had  approached the CAT as soon as the action was taken by the  department but CAT took time in final disposal of the matter which  should not come in the way of respondent No.6 in getting appropriate  relief.  In any case, appropriate observations have been made by the  Tribunal to accommodate the appellant, if it is possible. The counsel,  therefore, submitted that the appeal deserves to be dismissed.

Having heard the learned counsel for the parties and having  gone through the record, we are of the view that the decision rendered  by the CAT and confirmed by the High Court needs no interference.   It is clear from the notification and the conditions laid down therein  that both, appellant as well as respondent No. 6 were qualified. So far  as education qualification is concerned, both have passed Matriculate  examination.  Clause D of the notification required a candidate to  have passed Matriculate or equivalent examination.  It also stated that  no weightage would be given to higher qualification.  It is thus clear  that the authorities were to consider the factum of passing of  Matriculation examination.  From the record, it is further clear that  whereas the appellant had obtained 531 marks out of 900 marks,  respondent No. 6 had obtained 584 marks.  Respondent No. 6 was  thus more meritorious so far as marks obtained at the Matriculation  examination was concerned.  It may be stated at this stage that it is not  even the case of the Department that respondent No. 6 did not possess  requisite educational qualification.   

The consideration weighed with the authority was that the  appellant was having agricultural land in her name, while respondent  No. 6 did not possess agricultural land and thus she was not eligible.  Now, it is the case of respondent No. 6 that she had become owner of  the agricultural land on the basis of the gift-deed dated October 14,  1996, before the last date of submission of application.  Mutation

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entry could not be affected before 12th November, 1996 and it was  done on 22nd November, 1996.  CAT, in our opinion, rightly held that  in the circumstances, it could not be held that respondent No. 6 did  not possess agricultural land on the last date of submission of  application form and it could not be said that she was not eligible.

Our attention in this connection was invited by learned counsel  for both the parties to a decision in Rekha Chatravarti v. University  of Rajasthan (1993) Supp. 3 SCC 168.  In that case, an  advertisement/notification was issued inviting applications for the  post of Assistant Professors having requisite qualifications.  Some  candidates had no requisite qualification.  They, however, acquired  such qualification afterwards.  The question before this Court was  whether such candidates could be treated as qualified, eligible and  having acquired necessary qualification at the relevant date.  This  Court held that the candidate must be qualified on the last date of  making application for the post advertised or on the date specifically  mentioned in the advertisement/notification.  Qualifications acquired  by a candidate after such date cannot be taken as qualification for the  post and he cannot be appointed.

One of the guidelines issued by this Court reads;

"B.  The candidates selected must be qualified as  on the last date for making applications for the posts in  question or on the date to be specifically mentioned in  the advertisement/notification for the purpose.  The  qualifications acquired by the candidates after the said  date should not be taken into consideration, as that would  be arbitrary and result in discrimination.  It must be  remembered that when the advertisement/notification  represents that the candidate must have the qualifications  in question, with reference to the last date for making the  applications or with reference to the specific date  mentioned for the purpose, those who do not have such  qualifications do not apply for the posts even though they  are likely to acquire such qualifications and do acquire  them after the said date.  In the circumstances, many who  would otherwise be entitled to be considered and may  even be better than those who apply, can have a  legitimate grievance since they are left out of  consideration."           (emphasis supplied)   

Learned counsel for the appellant submitted that respondent No.  6 got her name mutated in Revenue Records on November 22, 1996  and that is the relevant date.  Last date of submission of application  was 12th November, 1996.  The ratio laid down in Rekha Chaturvedi  thus applies to the case on hand and as respondent No. 6 was not  eligible, her case could not be considered.   

In our considered opinion, however, the learned counsel for  respondent No. 6 is right in submitting that respondent No. 6 had  become owner of agricultural land in October, 1996.  The relevant  date for consideration was November 12, 1996 and before that date,  she possessed such property.  Rekha Chaturvedi, in our view, supports  respondent No. 6 rather than the appellant.  When respondent No. 6  became the owner of the property in October, 1996 before the last  date of submission of application, she could be said to be possessing  agricultural land and, hence, she was eligible.  In our opinion, owning  of agricultural property and getting the name entered in Revenue  Record are two different and distinct things.  Mutation entry does not  confer right or title to the property.  Though the law is very well

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settled, in our opinion, the CAT was right in relying upon the decision  of this Court in Sawarni v. Inder Kaur and Others AIR 1996 SC 2823  wherein this Court held that mutation entry neither creates nor  extinguishes title or ownership.

In view of settled legal position, in our judgment, CAT as well  as the High Court were right in holding that though respondent No. 6  was eligible having possessed agricultural land, her case was ignored  by the authorities and hence, the action was illegal and improper.  In  view of the fact that respondent No. 6 was more meritorious, since she  had obtained more marks than the appellant, the direction of CAT to  appoint her cannot be said to be illegal or unlawful.  The said  direction is, therefore, not interfered with.  CAT has also referred to  para 2 of the Executive Order dated May 10, 1991, issued by the  Director General of Post, New Delhi, which reads thus;

"The deciding factor for the selection of ED  BPMs/ED SPMs should be the income and property and  not the marks, has been examined threadbare but cannot  be agreed to as this will introduce an element of  competitiveness in the matter of possession of property  and earning or income for determining the merit of  candidates for appointment as ED Agents. Proof of  financial status is not only subject to manipulation but is  also detrimental to merit.  When the Constitution of India  guarantees equal opportunity to all for their  advancement, the reasonable course would be offer ED  employment to the person who secured maximum marks  in the examination which made him eligible for the  appointment, provided the candidate has the prescribed  minimum level of property and income so that he has  adequate means of livelihood apart from the ED  Allowance."

Regarding appointment and continuance of the appellant for a  period of almost eight years in service, it may be stated that  respondent No. 6 had approached a competent Tribunal for ventilating  her grievance immediately after the issuance of order in favour of the  appellant.  It was because of the pendency of the matter before the  Tribunal that respondent No. 6 could not get the case decided and the  matter finally adjudicated.  The learned counsel for respondent No. 6  is, therefore, right in submitting that the said fact should not cause  prejudice to respondent No. 6 who had approached the Tribunal in  time. To us, the CAT is right in considering the matter in its entirety  and in making observations that the case of the appellant herein be  considered for appointment as EDBPM in the nearby vicinity if  otherwise she is fit.   

No doubt relying on Rekha Chaturvedi, the learned counsel for  the appellant submitted that in that case this Court after holding the  selection process unlawful, did not interfere with the action and  refused to set aside illegal appointment on the ground that the case  was heard after eight years.  In the case on hand, however, respondent  No. 6 had approached the Tribunal immediately, the Tribunal  considered the facts and circumstances of the case and granted relief  to respondent No. 6 and also made suitable observations so that the  present appellant may be accommodated if possible.  Moreover that  order was confirmed by the High Court.  We, therefore, see no reason  to disturb that direction.

For the foregoing reasons, the appeal deserves to be dismissed  and is, accordingly, dismissed.  In the facts and circumstances of the

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case, however, there shall be no order as to costs.