CIVIL WRIT JURISDICTION CASE No.235 OF 2005 with CIVIL WRIT JURISDICTION CASE No.970 of 2005 with CIVIL WRIT JURISDICTION CASE No.972 of 2005 with CIVIL WRIT JURISDICTION CASE No 3392 of 2005 (In the matter of applications under Article 226 and 227 of the Constitution of India) ****** In C.W.J.C.No.235 of 2005 Santosh Kumar Singh aged about 26.10 yrs. S/O Sri Jyotendra Singh, resident of Village & Post Office-Gokhala Nagar Bishanpur, P.S.Balia, District-Begusarai. ---- Petitioner Vs. 1. The Union of India, through the Chief Postmaster General, Bihar Circle, Patna. 2. The Director of Postal Services, Muzaffarpur. 3. The Superintendent of Post offices, Begusarai Division, Begusarai. 4. The Sub Divisional Inspector of Post Offices, Begusarai East Sub Division, Begusarai. 5. Sri Vijendra Mishra, alias Krishnandan Kumar, Son of Sri Ram Swarup Mishra, resident of Village & P.O.-Gokhla Nagar Bishanpur, via- Lakhminia, P.S.Balia, District- Begusarai. 6. The Central Administrative Tribunal, Patna Bench, through its Registrar, 88- S.K.Nagar, Patna-1. ----- Respondents. For the Petitioner : Mr.Hemant Kumar Karn, Advocate. For respondent nos. 1 to 4 & 6 : Mr. Sarvadeo Singh, Advocate. For respondent no. 5 : Mr. Nawal Kishore Singh, Advocate. ****** In C.W.J.C.No. 3392 of 2005 1. The Union of India through the Chief Post Master General, Bihar Circle, Patna. 2. The Director of Postal Services, Muzaffarpur. 3. The Superintendent of Post Offices, Begusarai Division, Begusarai. 2 4. The Sub Divisional Inspector of Post Offices, Begusarai East Sub Division, Begusarai. ---- Petitioners. Vs. 1. Shri Vijendra Mishra @ Krishnandan Kumar s/o Shri Ram Swarup Mishra, resident of village and P.O. Gokhala Nagar Bishanpur via Lakhminiya P.S. Balia, Dist. Begusarai. 2. Sri Santosh Kumar Singh son of Sri Jyotendra Singh, resident of Village and Post Office- Gokhala Nagar Bishnupur via Lakhminia, P.S.Balia, Dist. Begusarai, at present working as EDBPM, Gokhalanagar, Bishnupur EDBO, Dist.Begusarai. 3. The Registrar, C.A.T. Patna Bench, Patna. ---- Respondents. For the Petitioners : Mr. Sarvadeo Singh Advocate. For the respondents : Mr. H.K.Karn & Mr. N.K.Singh, Advocates. ****** In C.W.J.C.No.970 of 2005 Bikram Prasad Yadav, Son of late Deo Narayan Yadav, EDDA of Magarwara E.D.B.O. in a/c with Kumarkhand S.O. in Murliganj sub-division Madhepura in Saharsa Postal Division. ---- Petitioner Vs. 1. The Union of India, through the Secretary-Cum-Director General, Department of Posts, New Delhi-1. 2. The Chief Postmaster General, Bihar Circle, Patna-1. 3. The Postmaster General, Northern Region, Muzaffarpur. 4. The Superintendent of Post Offices, Saharsa Division, Saharsa. 5. The Sub-divisional Inspector (postal) Murliganj, Sub-Division, Madhepura, in Saharsa Postal Division. 6. Birenda Das, son of Bouku Das, resident of village- Magarwara, P.S.Kumarkhand, Distt. Madhepura. 7. The Registrar, Central Administrative Tribunal, Patna Bench, Patna. ---- Respondents. For the Petitioner : Mr.Sanjiv Krishna Bariar Advocate. For respondent nos. 1 to 5 & 7 : None For respondent no. 6 : None. 3 ****** In C.W.J.C.No. 972 of 2005 Anita Kumari @ Anita Devi, Wife of Sri Satyendra Kumar Yadav, resident of village Israyan Kala, P.O.-Israyan Kala Via- Kumarkhand P.S. Kumar Khand, District- Madhepura. ---- Petitioner Vs. 1. The Union of India, through Postmaster General, Northern Region, Muzaffarpur. 2. The Director of Postal Services, Northern Region, Muzaffarpur. 3. The Superintendent of Post-Offices, Saharsa Division, Saharsa. 4. Manjusha Kumari, daughter of Sri Arun Kumar Singh, resident of village Israyan Kala P.O. Israyan Kala Via- Kumar Khand, District- Madhepura. 5. Registrar, Central Administrative Tribunal, Patna. ---- Respondents. For the petitioner : Mr. Amarnath Jha & Mr. Durgesh Kumar, Advts. For the respondent nos. 1 to 3 & 5 : None. For the respondent no.4 : None. ****** P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL S.K.Katriar, J. C.W.J.C.No. 235 of 2005 & C.W.J.C.No. 3392 of 2005. These writ petitions are directed against the order dated 06.12.2004 (Annexure-6), passed by the Central Administrative Tribunal, Patna Bench, in O.A.No. 258 of 1998 (Vijendra Mishra, alias Krishnandan Kumar versus Union of India and others), (and the three analogous original applications, namely, O.A.Nos. 240 of 1998, 274 of 1997, and 276 of 1998), 4 whereby the application preferred by respondent no.5 herein (Vijendra Mishra) has been allowed, the appointment of the petitioner herein as Extra Departmental Branch Post Master (‘E.D.B.P.M.’ for short) has been set aside, and respondent no. 5 has been directed to be appointed. We shall go by the description of the parties occurring in the present proceedings. 2. A brief statement of facts essential for the disposal of the writ petition may be indicated. The authorities had issued advertisement which had appeared in the local dailies on 04.11.1997 (Annexure-1), inviting applications for appointment to the post of E.D.B.P.M. The petitioner, as well as respondent no.5, apart from others, submitted their applications, and were considered. 03.12.1997 was the last date for submission of applications. The candidates had to be between 18 to 65 years of age. The clause of the advertisement relevant in the present context is reproduced herein below for the facility of quick reference: “¼?k½ mEehnokj dks thohdksiktZu gsrq i;kZIr lk/ku vo'; gksuk pkfg,A vxj mls thohdksiktZu dk lk/ku dsoy mldks Hkw&lEifRr gh gS rks og tehu mlds uke ls gksuk pkfg,A mlds izek.k i= esa mEehnokj ds [kfr;ku@dsokyk] nkf[ky dkxtkr ,oa tehu laca/kh jlhn dk vfHkizekf.kr vFkok QksVks izfrfyfi vkosnu i= ds lkFk layXu djuk gksxkA mEehnokj ds thohdksiktZu ds L=ksrksa dk izek.k i= layXu djuk pkfg,A** 3. The petitioner was appointed by order dated 16.01.1998 (Annexure-4), leading to the aforesaid O.A.No. 258 of 1998, which has on contest been allowed, the appointment of the 5 petitioner has been set aside, and it has further been directed that respondent no.5 shall in his place be appointed leading to the present writ petition. The original application at the instance of the respondent no.5 has been allowed on the ground that the aforesaid condition regarding property qualification has been set aside by a Full Bench decision of the Bangalore Bench of the Tribunal. Therefore, the preference given by the authorities to the petitioner on the basis of his property rights goes away. The Tribunal has further held that in such a situation, respondent no.5 (the original applicant) has to be given preference because he has secured higher marks than the petitioner (the respondent before the original application) at the matriculation examination and also fulfilled the requisite criteria. It is also relevant to state that the appointee has preferred the present C.W.J.C.No. 235 of 2005, and the department has preferred the analogous C.W.J.C.No. 3392 of 2005 (Union of India and ors. versus Vijendra Mishra @ Krishnandan Kumar and others). Both raises common issues and, in fact, deal with appointment of the same person(s) and, are, therefore, being disposed of by a common judgment. 4. We have perused the materials on record and considered the submissions of the learned counsel for the parties. It appears that the Tribunal has fallen in the error of applying the decision of the Bangalore Bench which struck down the aforesaid income and property clause in the departmental circular. The Tribunal failed to realize that the Bangalore Bench delivered its judgment in 2002, whereas the selection process in the instant case 6 was completed much earlier. The appointee (the petitioner herein) had already joined in view of the letter of appointment of 16.01.1998 (Annexure-4). The decision of the Bangalore Bench could not have been applied retrospectively. Law is well-settled that once selection process has commenced, which normally happens with issuance of the advertisement, there cannot be change in the mode and manner and conditions of recruitment, let alone a situation like the present one where the selection process had concluded. Indeed the appointment had been made much earlier. Reference may be made to the judgment of a Division Bench of the Himachal Pradesh High Court. A Division Bench of this Court had the occasion to apply the same in its decision in Namita Jayaswal Vs. State of Bihar, reported in 1993(1) PLJR 391. 5. Indeed a Division Bench of this Court by its decision dated 21.12.2006, allowed C.W.J.C.No. 9336 of 2004 (Anil Kumar @ Anil Kumar Mehta Versus The Union of India & Ors.), on just the same ground. That was a case rendered in comparable circumstances, and the Tribunal had applied the aforesaid Full Bench judgment of the Bangalore Bench. Relevant portion of the decision of this Court is reproduced herein below: “…….The validity of the appointment in question will have to be tested within the parameters or conditions of the advertisement issued by the respondents. The same cannot be found fault with or its requirement cannot be wished away merely on the ground that at a subsequent stage, to be precise, in the year 2002, a Tribunal’s order had struck down one of the conditions indicated in the advertisement. The tribunal has obviously erred by applying the judgment of the Full Bench of Central Administrative Tribunal of 7 Bangalore, which at best could be prospective in nature and could not relate back to an appointment made prior to the order passed by the Full Bench of Central Administrative Tribunal at Bangalore. Reliance by the Tribunal on the order of the Full Bench to set aside the appointment of the petitioner was obviously an error of law. It is not in dispute that the petitioner fulfilled all the criteria and produced all the relevant documents in support of his claim regarding land etc. The striking down of that condition by the full Bench in the year 2002 cannot be utilized to bestow benefits upon respondent no.5 i.e. Neelam Devi…..” The net result is that the very basis of the impugned order goes away. 6. There is yet another aspect of the matter. The authorities had examined in depth all the applications and prepared an exhaustive report. A copy of the report is at Annexure-3/1 to the analogous C.W.J.C.No. 3392 of 2005, has also discussed the cases of the two candidates involved in the present case, and has come to the conclusion that no credit can be given to respondent no.5 with respect to his property or income claim. It is thus evident that the authorities had a sound basis to reject the candidature of respondent no.5 herein (the original applicant). 7. In the result, both C.W.J.C.No. 235 of 2005 and C.W.J.C.No. 3392 of 2005, are hereby allowed. The impugned order in so far as it concerns, O.A.No. 258 of 1998, is hereby set aside. The appointment of the writ petitioner is upheld. C.W.J.C.No. 970 of 2005 This writ petition arises out of O.A.No. 240 of 1998 (Birendra Das Vs. The Union of India and others), and has been 8 allowed by the aforesaid order dated 06.12.2004, of the Central Administrative Tribunal, Patna Bench. The facts are identical with minor difference of dates and the details regarding properties and income of the petitioner. We shall go by the description of the parties occurring in the present proceedings. 2. A brief statement of facts essential for the disposal of the writ petition may be indicated. The authorities had issued advertisement which had appeared in the local dailies on 12.01.1998, for appointment of Extra Departmental Delivery Agent (‘E.D.D.A.’ in short), Magarwara post office, District Madhepura. The writ petitioner, respondent no.6, and others submitted their applications for consideration. The respondent authorities issues letters dated 13.02.1998, to the candidates informing them that scrutiny of their applications shall be taken place on 21.02.1998, at the nominated place, and the candidates should appear with the original certificates mentioned therein. After completion of the selection process, the petitioner herein was appointed by order dated 05.03.1998 (Annexure-3), leading to O.A.No. 240 of 1998 (Birendra Das versus The Union of India and others), the same has been allowed by the impugned order on just the same ground as above, namely, property qualification has been struck down by judgment of 2002 of the Bangalore Bench of the Tribunal. 3. For the reasons assigned hereinabove, we reject this part of the order of the Tribunal. In so far as the property qualification is concerned, the respondent authorities have stated 9 as follows in paragraph nos. 6 and 7 of the counter affidavit: “6. That Sri Birendra Das S/o Sri Bauku Das was at IInd in merit securing 460/900 marks in Matricucaltion Examination. But he failed to produce income certificate even at the time of verification. So he was not eligible for the post. 7. That Sri Bikram Prasad Yadav S/o Sri Deo Narain Prasad Yadav was at IIIrd in merit securing 441/900 marks in Matriculation examination. He was permanent resident of post village. His date of birth is/was 22.08.1976. His annual income is/was Rs. 16,000/- . He produced all the original documents/ papers before the S.D.I.(P) for verification on the date fixed. He was found eligible fulfilling all the requsite criterias. Hence he was selected and appointmed to the post vide memo no. A- 1/a Mangarwar dated 05.03.98.” It is thus evident that respondent no.6 herein was disqualified with respect to income and property qualifications whereas, the petitioner herein fulfilled the condition of the advertisement. 4. In the result, C.W.J.C.No. 970 of 2005 is hereby allowed. The appointment of the petitioner herein as E.D.D.A. is hereby upheld, and part of the impugned order whereby O.A.No. 240 of 1998 was allowed, is hereby set aside. C.W.J.C.No. 972 of 2005: This writ petition is directed against that part of the aforesaid order of the Tribunal dated 06.12.2004, whereby O.A.No. 276 of 1998 ( Manjusha Kumari vs. Union of India and Ors.), has been allowed on the same ground, the appointment of Anita Devi has been set aside, and Manjusha Kumari has been directed to be appointed as E.D.B.P.M. We shall go by the description of the parties occurring in the present proceedings. 10 2. A brief statement of facts essential for the disposal of this writ petition may be indicated. The authorities had issued advertisement which had appeared in local dailies dated 02.09.1997 ( Annexure-1), inviting applications for appointment as E.D.B.P.M., Israyan Kala post office, District- Madhepura. The writ petitioner, respondent no.4, and others submitted their applications for consideration. On a consideration of all the applications, the petitioner herein was appointed leading to the aforesaid O.A.No. 276 of 1998, at the instance of the respondent no.4 herein, the same has been allowed just on the same ground. 3. We have perused the materials on record and considered the submissions of the learned counsel for the parties. The main ground on which the Tribunal has set aside the appointment of the petitioner herein is on the application of the judgment of the Full Bench of the Bangalore Bench of the Tribunal. We have disagreed with the same for the reasons assigned hereinabove. In so far as the property and income qualifications are concerned, the authorities have stated as follows in their counter affidavit before us: “A) Miss Manjusha Kumari, daughter of Sri Arun Kumar Singh of village Israyan has/had secured 629/900 marks in martriculation and has/had submitted rent receipt for 1.26 decimal of land which is/was negligible amount of landed property and is/was quite inadequate. The land is/was also inadequate for livelihood. That land is/was also not duly mutated in her exclusive name. The mutation of land was found irregular in course of enquiry by the S.D.I. from the circle office Kumar Khand in so much so the mutation was found ordered by the C.O. on a simple application of donation by her father without any gift deed. There was no gift deed gifting the land to her. This 11 irregular mutation has been challenged by the Court of D.C.L.R. Madhepura vide case no. 10/97- 98. The mutation of land itself is/was irregular and disputed. Negligible amount of land cannot be taken to be adequate means of livelihood as required under the departmental rules. C) Smt. Anita Kumari, wife of Sri Satyendra Kumar Yadav of village Israyan has/had secured 558/900 marks in matriculation having 99 decimal of land in her exclusive name duly mutated. She has/had submitted upto date rent receipt and copy of mutation order in support of landed property. So she is/was eligible for the post.” It is thus evident that the present petitioner fulfilled the property qualification, whereas respondent no.4 herein did not fulfil the same. In the result, C.W.J.C.No. 972 of 2005 is hereby allowed, O.A.No. 276 of 1998 is hereby rejected, and appointment of the petitioner herein as E.D.B.P.M. is hereby upheld. 4. In the result, all the four writ petitions are allowed, and the appointment made by the authorities of the writ petitioners are hereby upheld. (Kishore K.Mandal, J.) I agree. Patna High Court, Dated the 8th March,2010 Sym/NAFR (S.K.Katriar,J.) ( Kishore K. Mandal, J.)