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CASE NO.: Appeal (civil)  13 of 2005

PETITIONER: Sunil Kumar Singh

RESPONDENT: Union of India and Ors.  

DATE OF JUDGMENT: 04/01/2005

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T  

(Arising out of S.L.P. (Civil) No. 23970/2003)

ARIJIT PASAYAT, J.

       Leave granted.

       Appellant calls in question legality of the judgment rendered by  a Division Bench of the Patna High Court, affirming order of the  Central Administrative Tribunal, Patna Bench (in short the ’CAT’)  holding that the appellant’s appointment as "Extra Departmental  Delivery Agent" (in short ’EDDA’)/Extra Departmental Mail Carrier (in  short ’EDMC’) was not legal.

       Background facts in a nutshell are as follows:

       A new post office was ordered to be opened at village Madhubani  under Karnaut sub post office in Muzaffarpur postal division in the  year 1993.  A requisition was sent to the employment exchange calling  for the names of qualified candidates for making appointment to the  post of EDDA-cum-EDMC.  The minimum qualification was matriculation and  local candidates were to be given preference.  Seven names were  forwarded by the employment exchange including the name of appellant  and one Kamlesh Prasad Singh (respondent No. 6 in this appeal).  After  interview, by the Sub-divisional Inspector of post offices, appellant  was selected.  It is to be noted that preference was to be given to the  candidate who had secured highest marks in the matriculation  examination amongst candidates.  A letter of appointment was issued on  25.10.1993.  It was clearly indicated in the order that the appointment  is of a contractual nature, liable to be terminated by notification in  writing and the conduct and service is governed by the Post and  Telegraph Extra Department (Conduct and Service) Rules 1964, (in short  ’the Conduct Rules’).  The appellant joined the post on 26.4.1994.  A  petition was filed before the CAT by aforesaid Kamlesh Prasad Singh  taking the stand that he had secured higher marks than the present  appellant.  Further he was involved in a criminal case of kidnapping a  college going girl. Initially his bail application was rejected by the  learned CJM, but subsequently bail was granted by the Sessions Judge.   Though the present appellant did not appear before the CAT, the  official respondents took the stand that he was allowed to join only  after clean report about him was given by the Officer-in-Charge,  Sahebganj Police Station.  CAT was of the view that merely because the  officer-in charge had not given adverse report that was not relevant.   The case against the present appellant might not even stand in the  criminal court.  But the fact is that he faced a criminal charge and  there was strong possibility of his appointment resulting in  criminalization of government office. It was further held that though  candidate with higher marks is a good criteria for appointment, but

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that cannot be the sole criteria.  The appointment for the post of EDDA  is not prescribed under any statutory rule, but under executive  instructions.  When there is a possibility of criminalization of office  administration such candidate should not be appointed. Accordingly  appointment order was set aside and it was held that fresh selection  should be made and the candidates other than the present appellant were  to be considered for appointment.  Appellant questioned legality of the  CAT’s order before the Patna High Court.  By the impugned order, the  High Court dismissed the application on the ground that though the  circumstance of his facing a criminal charge was indicated in the  petition and allegations were made, the appellant did not come forward  to deny the statement and the allegation and therefore order of the CAT  did not warrant interference.   

       Learned counsel for the appellant submitted that the appellant  had applied for the post on 18.8.1993, interview was held on 27.9.1993  and appointment was made on 12.10.1993. A false case was lodged on  15.10.1993.  That the case was falsely lodged has been amply proved by  acquittal of the appellant by the trial court.  It was clearly observed  in the judgment that the case was falsely hoisted.  The acquittal was  not on technical ground, but on the other hand was clean acquittal.   Reference was made to evidence of certain witnesses who clearly stated  that the appellant had no role to play in the alleged crime.  It was  further submitted that there was no material to show that the appellant  had any criminal antecedents, or that he was undesirable person.

       Learned counsel for the official respondents submitted that the  fact that the appellant was involved in a criminal charge makes him  undesirable.  Therefore, this Court should not interfere while  exercising jurisdiction under Article 136 of the Constitution of India,  1950 (in short ’the Constitution’).  

       We find that the conclusions of the CAT as upheld by the High  Court revolve round the appellant facing a criminal trial.  At the time  of issuing appointment order the case had not been initiated.  Though  the case was instituted, the same has ended in acquittal.  It was open  to the concerned official respondents to terminate the contractual  appointment.  It is to be noted that the appellant was permitted to  join after his release from custody.  Though the authorities were aware  of the criminal case against him, they did not put an end to the  contractual appointment.  It was only pursuant to the CAT’s order on  the basis of a petition filed by an unsuccessful candidate that the  appointment was nullified.  Whether the appellant deserved to be  continued had not been independently examined by the authorities.  By  the time the High Court decided the matter, the appellant had already  been acquitted.  The effect of such acquittal has also not been  considered by the High Court.  Mere non-appearance before CAT could not  have held to be the determinative factor.  The High Court should have  considered as noted above, the effect of the acquittal. It is also not  clear from the records whether the order of the CAT directing fresh  consideration has been carried out or not.

       In the peculiar circumstances we remit the matter to the High  Court for a fresh consideration.  At the same time it is open to  official respondents to consider whether the contractual appointment of  appellant is to be continued or not in the background facts as  highlighted above.  We make it clear we have not expressed any opinion  on the merits of the case.

       Appeal is disposed of in the aforesaid terms with no order as to  costs.