IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 21ST FEBRUARY 2008 / 2ND PHALGUNA 1929 WP(C).No. 14664 of 2004(S) -------------------------- ( AGAINST THE ORDER DATED 19/09/2003 IN RA.18/2003 IN OA.590/2001 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH) PETITIONER/APPLICANT: ------------------------------------ DEEPA VINOD, D/O. SRI.A.GOPI, AGED 28 YEARS, EXTRA DEPARTMENTAL BRANCH POST MASTER, VATANAPPALLY BEACH P.O., RESIDING AT KANNIKULANGARA HOUSE, ANTHIKKAD P.O., THRISSUR DISTRICT. BY ADV. SRI.O.V.RADHAKRISHNAN (SR.) RESPONDENTS/RESPONDENTS ----------------------------------------------- 1. SENIOR SUPERINTENDENT OF POST OFFICES THRISSUR DIVISION, THRISSUR 680 001. 2. POSTMASTER GENERAL, CENTRAL REGION, KOCHI. 3. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF COMMUNICATIONS, SANCHAR BHAVAN, NEW DELHI. 4. CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, MANAPPATTIARAMBU, KALOOR, ERNAKULAM DISTRICT. *ADDL.R5 AND R6: R5. K.G. KRISHNAKUMARI, KIZHEKKUT HOUSE, VENGINISSERRY, P.O. PARALAM, THRISSUR. R6. A.D. REETHA, CHIRIYANKAPDATH HOUSE, PAVARATTY, THRISSUR. (ADDL.RESPONDENTS 5 AND 6 ARE IMPLEADED AS PER ORDER DATED 17.09.2007 ON I.A. NO. 12381 OF 2007.) BY ADV. SRI.P.PARAMESWARAN NAIR, ASST.SOLICITOR R6 BY ADV. SRI.KURIAN ANTONY EDASSERY BY ADV. SMT.ANN EMIL JOSEPH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 14664 of 2004(S) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE O.A.NO. 590 OF 2001 ALONG WITH ANNEXURES OF THE CAT, ERNAKULAM DATED 08.07.2001. EXT.P2 : PHOTOCOPY OF THE REPLY STATEMENT ALONG WITH ANNEXURES R1 TO R4 FILED ON BEHALF OF THE RESPONDENTS DATED 04.08.2001. EXT.P3 : PHOTOCOPY OF THE ADDITIONAL REPLY STATEMENT FILED ON BEHALF OF THE RESPONDENTS DATED 02.07.2003. EXT.P4 : TRUE COPY OF THE REJOINDER STATEMENT OF THE APPLICANT DATED 13.07.2003. EXT.P5 : TRUE COPY OF THE ORDER DATED 19.09.2003 IN O.A.NO. 590 OF 2001 OF THE 4TH RESPONDENT. EXT.P6 : TRUE COPY OF THE R.A. 18 OF 2003 IN O.A. 590 OF 2001 WITHOUT ANNEXURE DATED 05.10.2003. EXT.P7 : PHOTOCOPY OF THE ORDER NO. ST/40-38/2000 DATED 05.11.2003 OF THE 2ND RESPONDENT. EXT.P8 : PHOTOCOPY OF THE ORDER DATED 14.11.2003 ON M.A.NO. 922/2003 IN R.A. 18 OF 2003 OF THE 4TH RESPONDENT. EXT.P9 : PHOTOCOPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE RESPONDENTS DATED 28.01.2004. EXT.P10. : PHOTOCOPY OF THE ORDER DATED 07.05.2004 IN R.A.NO. 18 OF 2003 IN O.A. 590 OF 2001 DATED 28.01.2004 OF THE 4th RESPONDENT. /TRUE COPY/ P.A. TO JUDGE. K. BALAKRISHNAN NAIR & K.T. SANKARAN, JJ. ................................................................................... W.P.(C) No. 14664 OF 2004 ................................................................................... Dated this the 21st February, 2008 J U D G M E N T K. Balakrishnan Nair, J: The petitioner is the applicant in O.A.No. 590 of 2001. Respondents 1 to 3 were the respondents therein. The petitioner was selected and appointed as E.D. Branch Postmaster of Vatanappilly Beach Branch. From among the applicants who applied for the post, the petitioner was selected and appointed, as per memo dated 16.01.2002. Later the Reviewing Authority found that the income of the petitioner is not derived from landed property. As per the conditions prescribed for appointment, the candidates should have independent income and that it should be derived either from landed property or immovable property. The applicant's income was from a partnership firm in which she was a partner. The Reviewing Authority brought this to the notice of the Appointing Authority, who in turn issued Annexure-A5 memo dated 05.06.2001 to the applicant, which reads as follows: “The Reviewing Authority has held that your selection as BPM, Vatanappally Beach, was erroneous on the ground that independent income is not derived from landed or immovable property and as such you did not fulfill the preferential condition for the appointment. It is therefore proposed to terminate your service. You are given W.P.(C) No. 14664 OF 2004 2 opportunity to make representation against the proposed action. If no representation is received within 10 days of receipt of this letter, it will be presumed that you have no representation to make and action will be taken accordingly.” 2. Feeling aggrieved by the aforesaid memo, the petitioner filed Ext. P1 O.A.No. 590 of 2001. The petitioner contended that the condition that independent income should be derived either from landed property or immovable property is ultra vires and unconstitutional and it has been held so by this Court also. The official respondents filed a reply statement reiterating their stand in Annexure-A5. Thereafter, an additional reply was also filed. The Tribunal, after hearing both sides. did not decide whether Annexure-A5 is valid or not, but directed the Appointing Authority to re-consider the claims of all the applicants including petitioner's claim and to make fresh selection. Pursuant to the said direction in Ext.P5 order of the Tribunal, Ext.P7 order dated 05.11.2003 was passed, making the selection solely based on the marks obtained in the S.S.L.C. Examination. In the meantime, the petitioner filed a Review Application before the Central Administrative Tribunal , which stood dismissed by Ext. P10 order dated 07.05.2004. Hence this Writ Petition, challenging Exts. P5, P7 and P10 orders . 3. The learned Senior Counsel Shri. O.V. Radhakrishnan appearing for the Writ Petitioner submitted that the Tribunal should have either upheld the challenge against Annexure-A5 or repelled it. Instead of doing that, the Tribunal went at a tangent, unsettled her selection and also ordered to re-consider the applications of other candidates also for appointment to the post who have suffered her selection and appointment. So the learned counsel prayed for interference with the impugned order. The other candidates who were considered for selection as per Ext. P7 order, were not W.P.(C) No. 14664 OF 2004 3 made parties to the Writ Petition. Later they were impleaded. Additional 6th respondent who was one of the candidates so impleaded, has filed a counter affidavit supporting the impugned order. We also heard the learned counsel appearing for the additional 6th respondent. 4. We find considerable force in the submission of the learned Senior Counsel that the Tribunal was only called upon to decide the validity of Annexure-A5 order, which was impugned in Ext.P1 Original Application. The Tribunal could have either dismissed the O.A. holding that it is only a notice or could have quashed it, holding that the condition regarding income from the landed property has already been held to be unconstitutional by this Court. Instead of choosing one of the aforesaid options, the Tribunal had made a further enquiry into other collateral matters and gave a direction to the appointing authority to make a fresh selection. In that process, the selection and appointment of the petitioner stood set aside, without there being any challenge to it by the rival candidates or any decision of the Reviewing Authority. We are of the view that the course followed by the Tribunal is plainly illegal. Accordingly, Exts. P5 and P10 orders are quashed. Ext.P7 being an order passed, based on Ext.P5 order, same is also quashed. Since Annexure A5 is only a notice, we leave it to the competent authority to take a decision in the matter. Instead of the Appointing Authority, we feel, the Reviewing Authority shall do that. The said authority shall take a decision, after affording an opportunity of being heard to the petitioner and other affected parties, if any, as to whether it should stick to the stand taken by it earlier which led to issuance of Annexure-A5 order/notice. The Writ Petitioner shall produce a copy of this judgment before the Reviewing Authority within one month from today. The Reviewing Authority W.P.(C) No. 14664 OF 2004 4 shall take a decision in the matter within two months from the date of receipt of a copy of this judgment. The Writ Petition is disposed of as above. K. BALAKRISHNAN NAIR JUDGE. K.T. SANKARAN, JUDGE. lk