CWP No.5284-CAT of 2004 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CASE NO.: CWP No.5284-CAT of 2004 DATE OF DECISION: February 24, 2009 UNION OF INDIA AND OTHERS ...PETITIONERS VERSUS PREM SINGH ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MS. JUSTICE NIRMALJIT KAUR. PRESENT: MR. NAMIT KUMAR, ADVOCATE FOR THE PETITIONERS. MR. S.K. SUD, ADVOCATE FOR THE RESPONDENT. ASHUTOSH MOHUNTA, J. This petition has been filed under Article 226/227 of the Constitution of India, by Union of India, for quashing order dated 27.02.2004 (Annexure P-11) passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for short `the Tribunal'), whereby the Original Application filed by the respondent No.1 - Prem Singh has been allowed and the appointment of respondent No.2 - Ram Niwas to the post of Extra Departmental Branch Postmaster (herein after called ‘EDBPM’), Gurana has been quashed and a direction has been issued for appointment of respondent No.1 to the said post. The Tribunal has further directed that the department shall consider the possibility of accommodating respondent No.2 on any other alternative post. Brief facts of the case are that the Superintendent of Post Offices, Hissar Division had invited all candidates, including respondents No.1 and CWP No.5284-CAT of 2004 -2- 2, whose names had been forwarded by Employment Exchange, to submit their applications with requisite documents on or before August 20, 1998 for appointment to the post of ‘EDBPM’. Though respondent No.1 was placed at Serial No.1 in the Merit list on account of having secured 57.3% marks as against respondent no 2 who was placed at No.2 having secured 51.6% marks in Matric, however, the Sub Divisional Inspector (Postal) who was asked to scrutinize the applications submitted a report to the effect that the respondent No.1 does not fulfill the qualification relating to income and ownership of property as envisaged in the instructions dated 06.12.1993. Consequently the appointment of respondent No.2 was approved on 27.08.1998, by the Superintendent of Post Offices and the charge of post was handed over to him on 02.09.1998. The representation of respondent No.1 against his non selection was decided vide order dated 12.06.2001 (Annexure A-1), the operative portion of which reads as under:- “…..You also stood at Sr. No. 1 according to the marks obtained in Matric. But you have no immoveable property/ agriculture land in your name which according to the rules of the Department is essential. At no 2 of the merit list is the name of Sh Ram Niwas s/o Sh. Prithi Singh who fulfilled all the conditions according to the rules of the department and as such he was selected for the post” Feeling aggrieved, respondent No.1, filed an Original Application, under Section 19 of the Administrative Tribunals Act, 1985, before the Tribunal, being OA. No 185-HR of 2002, inter alia, praying for quashing of order dated 12.6.2001 (Annexure A-1), as well as the appointment of CWP No.5284-CAT of 2004 -3- respondent No 2, along with a prayer to appoint respondent No.1 to the said post. The stand of the petitioner-Union of India before the Tribunal was that respondent No.1, though higher in merit, yet he did not possess the essential and mandatory qualification of Income and ownership of property as he was stated to be working occasionally in the Village as Mason, whereas on the other hand respondent No.2 was stated to be running a Karyana Shop in the Village. The said original application was allowed by the Tribunal, in the first instance, vide order dated 14.11.2002, by holding that since the respondent No.1 was having higher marks than respondent No.2, the appointment of respondent No.2 was bad in law. The Tribunal quashed the appointment of respondent No.2 and directed that if the respondent No.1 fulfills all the other requisite eligibility criterion, he shall be given appointment in preference to the respondent No 2. It was also directed that since respondent No.2 has served the department for about 4 years by that time, the Department shall consider the feasibility of accommodating him on any other alternative post. The aforesaid order dated 14.11.2002 passed by the Tribunal was challenged by Union of India by filing CWP No.198-CAT-2003, titled Union of India and others versus Prem Singh and others, which was allowed by a Division Bench of this court vide order dated 24.07.2003, relying on an earlier decision of this Court in the case CWP No.15356 of 1996, titled as Union of India versus Prem Chand and another. The operative part of the judgment/order dated 24.07.2003, is reproduced hereunder for facility of reference: “We have heard learned counsel for the parties and perused the record. In our opinion, the impugned order is liable to be CWP No.5284-CAT of 2004 -4- set aside because while allowing the original application filed by the respondent no 1, the Tribunal ignored an important fact he did not fulfill the eligibility criteria laid down for appointment to the post of EDBPM. In CWP No 15356 of 1996 Union of India vs. Prem Chand and another decided on 23.03.1998, this Court considered the question whether the qualifications prescribed for appointment of Extra Departmental Agents, the qualification of property is mandatory and observed as under:- “A careful reading of the qualifications and the contents of the letter issued by the Government of India shows that the property qualifications prescribed for recruitment of EDBPM is an essential and mandatory qualification. The tenor of the language used in the rules does not indicate that the rule making authority had intended this qualification to directory or only a preferential qualification. The letter dated 6.12.1993 issued by the Government of India also does not give any such indication. Therefore it must be held that the Tribunal has erred in holding that the provision regarding “adequate means of livelihood” is not an essential pre- requisite but is only a preferential qualification. Any other interpretation of the letter issued by the Government of India would be contrary to the rules regulating recruitment to the service.” It is regrettable that the Tribunal has ignored the law laid down by this Court and quashed the appointment of respondent No 2. CWP No.5284-CAT of 2004 -5- At this stage, Shri S.K. Sud counsel for respondent No.1 submitted that even if this court is inclined to quash the impugned order his client may be given an opportunity to show that he satisfies other conditions of eligibility and was entitled to be selected for appointment as EDBPM. The prayer of Shri Sud appears reasonable and merits acceptance. Hence, the writ petition is allowed. The impugned order passed by the Tribunal is quashed and the case is remanded for fresh decision of the original application filed by respondent No.1. The parties are directed to appear before the Tribunal on 1.09.2003” In pursuance to the aforesaid order dated 24.07.2003, passed by this Court, the Tribunal re-examined the matter but without any change in the result and the Original Application filed by the respondent No.1 has again been allowed by the Tribunal vide order dated 27.02.2004. The relevant extract of the order of the Tribunal, also containing the reasons advanced by the Tribunal in support of its order, is reproduced here under for ready reference:- “We have considered the rival contentions. Admittedly applicant is more meritorious on the basis of the marks obtained by him in the matriculation examination. Although in the order dated 24.07.2003, the Hon'ble High Court observed that the qualification of property is mandatory for eligibility for appointment to the post of EDBPM, yet it is found that the Hon'ble High Court has not considered the CAT Full CWP No.5284-CAT of 2004 -6- Bench Bangalore decision dated 02.12.2002 in the case of “H.Lakshmana” (supra) in which the Full Bench after considering the various decisions rendered by different courts, had held that the condition pertaining to adequate means of livelihood in department’s circular of 06.12.93 was invalid. It is further observed that possession of adequate means of livelihood is neither an absolute condition nor a preferential condition required to be considered for the above said post. In these circumstances, we are bound by the Full Bench decision of the Tribunal. Realising the futility of income and property qualification, the Deptt. Of Posts vide circular dated 17.09.2003 deleted the condition of income preferably from landed property/ immoveable property for recruitment to the post of Gram Dak Sevaks. As such, the candidature of the applicant has to be considered on the basis of the basis of the marks obtained by him in matriculation examination. Respondents have admitted that applicant had obtained the higher marks among the candidates considered. His candidature has been rejected only on the ground of income and property. No infirmity has been pointed out by the respondents in regard to other requisite qualification for the post of EDBPM. Having regard to the facts, circumstances and law as discussed above, this O.A. must succeed. Accordingly, Annexure A-1 dated 14.6.2001 is quashed and set a side. The respondents are directed to offer to the applicant the appointment to the post of CWP No.5284-CAT of 2004 -7- EDBPM, village Gurana BO immediately. It is further directed that since respondent no 5 has served the respondent department for the last over 4 years, the respondent department shall consider the possibility of accommodating him on any alternative post. These order must be complied by the respondents within a period of one month from today. No costs.” Against the said order dated 27.02.2004, passed by the Tribunal, petitioner-Union of India has again approached this Court by way of the present writ petition. A bare perusal of the case file shows that while issuing notice of motion, notice regarding stay was also issued vide order dated 20.03.2004. However thereafter no order either granting or declining the stay was passed, infact the issue of stay was never raised before the Court. However respondent No.1 moved C.M. Application No.16856 of 2007 praying for early hearing of the case, in which it has been averred that respondent No.1 is out of service. This shows that the petitioner-Union of India has not yet implemented the order of the Tribunal dated 27.02.2004 and has not appointed respondent No.1 to the post of ‘EDBPM’, on account of pendency of the present writ petition. Learned counsel for the Petitioner-Union of India has vehemently argued that the Tribunal fell in grave error in not appreciating the fact that the qualification/condition regarding property prescribed vide instructions dated 06.12.1993 (Annexure R-2), for recruitment to the post of ‘EDBPM’ is essential and mandatory qualification. Since respondent No.1 did not fulfill the said essential and mandatory qualification of income and ownership of property, respondent No.2 who was next at Serial No.2 in the CWP No.5284-CAT of 2004 -8- merit list was rightly selected and appointed as ‘EDBPM’. The learned counsel further contended that this court in Prem Chand’s case (supra), has already held that the property qualifications prescribed for recruitment of ‘EDBPM’ is an essential and mandatory qualification and on the basis of the said judgment, even in the present case the earlier order of the Tribunal dated 14.11.2002, has been set aside by this Court vide order dated 24.07.2003. The Tribunal has committed patent illegality by disregarding the judgment of this Court once again by observing that the judgment of this Court has not considered a Full Bench Judgment of the Tribunal in H.Lakshmana and ors vs. The Superintendent of Post Offices Bellary and ors, reported as 2003(1) Administrative Total Judgements 277. The learned counsel relying on the decision of Hon'ble Supreme Court in the case of State of Orissa vs Bhagaben Sarangi and others, reported as (1995) SCC (L&S) 320 argued that the Tribunal is bound by the decision of the High Court of the State and cannot side track or bye pass the decision of the High Court, more so, in the present case as the judgment was given in a case inter se the parties themselves. On the other hand the learned Counsel for respondent No.1 has supported the decision of the Tribunal by relying upon the H.Lakshmana’s case (supra). He argued that in the said case it has been held that the qualification regarding possessing of adequate means of livelihood in the circular dated 06.12.1993, is neither an absolute condition nor a preferential condition required to be considered for the appointment as ‘EDBPM’. The learned counsel further contended that the decision of this Court in Prem Chand’s case (supra) has been considered by the Tribunal in the said case. We find that the controversy in present case is no longer res- CWP No.5284-CAT of 2004 -9- integra and is squarely covered in favour of the petitioner-Union of India by the decision of the Hon'ble Supreme Court of India in the case of Smt. Kiran Singh v. Union of India, reported as 2007 (2) S.C.T. 257, wherein the same rules and instructions dated 06.12.1993, were considered with regard to same post of ‘EDBPM’ and Hon'ble Supreme Court observed as under:- “18. The CAT allowed the application of respondent No.5 merely on the sole ground that as respondent No.5 has secured more marks in the High School Examination as against the appellant but it has lost sight of the other eligibility conditions contained in the Service Rules and the Circular governing the selection of the candidate to the post in question. The High Court in its impugned orders has not recorded independent reasons except to agree with the order of the CAT. 19. In the facts and circumstances of the case, in our view the order of the CAT which has been affirmed by the High Court is manifestly erroneous and cannot be sustained. The appellant and respondent No.5 both have qualified the High School Examination by securing first division. The eligibility and criterion for the selection of the candidate to the post of EDBPM as per the Service Rules was not only the merit between the two candidates in High School Examination but the additional criterion was that the candidate must be one who has "adequate means of livelihood derived from landed property or immovable assets" if the candidate is otherwise eligible for appointment. The instructions governing the eligibility of the candidates also provide that no weightage CWP No.5284-CAT of 2004 -10- will be given for any higher qualification. The appellant has fulfilled the essential qualification and required eligibility criterion and as such her selection to hold the post in question was valid whereas respondent No. 5 was not eligible to be appointed on the post for lack of income criterion in terms of the Circular. 20. In that view of the matter, the impugned judgment and order of the High Court dated 19.12.2003 passed in CMWP No. 56142 of 2003 and order dated 28.01.2005 recorded in CM Review/Recall Application No.9847 of 2004 are quashed and set aside. As a result thereof, the order dated 24.11.2003 of the CAT in OA No. 1041 of 1996 by which the application of respondent No.5 has been allowed and appointment of the appellant has been set aside, shall also stand quashed and set aside.” (emphasis supplied) We find that as was the case in the order under challenge before the Hon'ble Supreme Court, the Tribunal in the present case has also allowed the application of respondent No.1 merely on the sole ground that respondent No.1 has secured more marks in the Matriculation Examination as against the respondent No 2. However, the Tribunal failed to appreciate the fact that respondent No.1 was not eligible to be appointed on the post for lack of income criterion in terms of the instructions dated 06.12.1993, whereas the respondent No.2 fulfilled the essential qualification and required eligibility criterion and as such his selection to the post of ‘EDBPM’ was valid. CWP No.5284-CAT of 2004 -11- In view of the above, we find that the impugned order dated 27.02.2004 (Annexure P-11) passed by the Tribunal, by which the Original Application of the respondent No.1 has been allowed, is not sustainable in law. Consequently, the same is quashed and set aside. The appointment of the respondent No.2 to the post of ‘EDBPM’ by the petitioner-Union of India is held to be in accordance with law. Writ Petition allowed. (ASHUTOSH MOHUNTA) JUDGE February 24, 2009 (NIRMALJIT KAUR) Gulati JUDGE