1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL WRIT No. 766 of 2000 BHALENDRA KUMAR V/S CENTRAL ADMINI.TRIBUNAL & ORS. Mr. HR ARORA for Mr. MS SINGHVI, for the appellant / petitioner Mr. VK MATHUR & Mr. JK KAUSHIK, for the respondent Date of Order : 16.1.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI DEO NARAYAN THANVI,J. ORDER ----- Heard learned counsel for the parties. This petition has been filed by the petitioner seeking to challenge the order of the Central Administrative Tribunal, Jodhpur Bench, Jodhpur dt. 28.10.1999 Annexure-8. Briefly put the matter is, that the petitioner was appointed as Extra Departmental Stamp Vendor, Sub Post Office, Kot Gate, in the prescribed pay and allowance, vide Annexure-1, with immediate effect. It was, however, mentioned in Annexure-1 that the appointee should understand that his appointment is in the nature of tender who can be removed at any time within three years, and that Extra Departmental Agent (Conduct & Service) Rules, 1964 as 2 amended from time to time shall apply. While so working the petitioner was served with a notice Annexure-2 informing him to the effect that other candidates have lodged complaint against the petitioner's appointment alleging the selection/appointment to be unfair, and that the case has been re-examined by the Regional Office, and it has been observed that selection/appointment was not fair, and selection has been made erroneously by the S.D.I., as such he was given show cause notice as to why his services be not terminated, due to wrong selection for the post. The petitioner submitted the reply Annexure-3, and thereafter the order Annexure-4 dt. 5.4.1994 was passed, purportedly under proviso to Rule 6(b) of the Rules, terminating his services by giving one month's basic allowance and dearness allowance. This order was challenged by the petitioner before the learned Tribunal by filing an Original Application, and the learned Tribunal vide order impugned dismissed the application. It has been found by the learned Tribunal, that though no reasons have been assigned for terminating the services, while the applicant has failed to establish that he is a right to continue on the post. It was found that if the appointment of the applicant is in violation of rules, then he cannot be allowed to continue on the post, because his appointment is not taken to be a regular appointment, and then it was also found that if his 3 appointment is taken to be regular one, even then his services can be dispensed with as per provisions of Rule 6, and by giving one month's allowance and dearness allowance which condition has been complied as the applicant had not completed 3 years continuous service before termination. Assailing the impugned judgment it is contended by the learned counsel for the petitioner, that though Annexure-4 is innocuous, and purports to have been passed in exercise of the powers under proviso to Rule 6(b), but then since it has been passed in furtherance of Annexure-2, it is more than clear, that the order had been passed because according to the employer respondent, the petitioner's appointment was not fair, and erroneous. With this it was contended that the learned Tribunal has also found that if the appointment is in violation of the Rules then, he cannot be allowed to continue on the post, but then in the entire set of Rules he has not been able to find any provision which stood violated in appointment of the petitioner. That being so, it cannot be said that the appointment of the petitioner was unfair, or erroneous, and since the move was initiated on account of this assumption only, and innocuous order had been passed, the order cannot be sustained. In reply it is contended, that in the selection process 6 applications were received including that of the 4 petitioner, and the S.D.I. after taking into consideration all the facts selected the applicant, and it is pleaded that Vinod Kumar finding place at S.No. 2 in the list, and being private respondent had worked on the above post from June, 1992 to January, 1993 as the original incumbent of the post was absent from duty, and this Vinod Kumar being aggrieved of the decision of the S.D.I. lodged complaint against the S.D.I. Likewise, one Jugal Kishore also lodged complaint. Thereupon the case was examined, and the decision was conveyed vide DO letter dt. 3.12.1993, conveying that the selection was not fair, and it was directed to terminate the services of the applicant “after usual formalities”. We may pause here and observe, that this decision was taken to terminate the services of the petitioner on account of the selection not having been found to be fair, and only usual formalities were required to be fulfilled, and that observance of the formalities had been made, purporting to take a recourse to proviso to Rule 6(b), after issuing notice to the petitioner. Then, it is pleaded in the reply, that as per the Director General letter dt. 12.3.1993 the qualification prescribed is 8th standard, and preference is to be given to candidates with Matriculation qualification, and that the selection should be based on the marks secured in the Matriculation or equivalent examination. With this it was pointed out that Vinod Kumar was having Ist Division in Matriculation, whereas the petitioner was second division. 5 In the entire reply filed before this Court it is not pleaded as to what other illegality, or irregularity was there in the selection process vitiating the selection of the petitioner. To repeat, according to reply filed before this Court, the only irregularity, or illegality in the selection was, that the selection should have been based on the marks secured by the candidate in the matriculation, or equivalent examination, and therein the petitioner secured lesser marks. We may hastened to observe, that the learned counsel for the respondent was pointedly asked to point out from the rules, as to what is the selection process prescribed therein, including the criteria prescribed for judging comparative merit of the candidates, where there are more than one candidate, so as to find that the marks obtained in the matriculation examination was the relevant criteria for judging the comparative merit of the candidate, but learned counsel could not point out any provision in the Rules. This is one aspect of the matter. Yet other more important aspect of the matter is, that under the Rules we have not been shown any provision, whereby any other authority may have been empowered to re- examine the selection process, to find such faults of incorrect computation of merit interse between the 6 candidates, and on that ground to direct the appointment to be terminated. In such circumstances, simply because some complaints were filed, which can obviously be filed by persons not getting selected, the higher authorities in administrative hierarchy, in absence of any provision, cannot be conceded any jurisdiction to re-examine the correctness of the selection process on the anvil of the grounds raised in the complaint, or otherwise, and simply because such higher authorities, on its own perception, is of the view, that a different merit should have been assigned by the selecting authority, to terminate the services of the person already selected and appointed. We may also observe here, that we have not been shown the parameters that might have been laid down for adjudicating, or assessing comparative interse merit of the candidate by allocating particular preference, for different considerations, like source of income, financial background, possession of property, experience, academic achievement in terms of marks secured, and so on and so forth. In that view of the matter, simply because it is found that the petitioner had secured some lesser marks in matriculation examination, as compared to other candidate, on that basis itself it cannot be said that the selection of the petitioner was unfair, or erroneous either. Mr. Kaushik relied upon a judgment of Hon'ble the 7 Supreme Court in Suman Verma Vs. Union of India reported in 2005(1) SLS-380 to contend that merit can be assessed on the basis of the marks obtained in the matriculation. It would suffice to say, that even from reading of that judgment it does not transpire that this was the sole criteria. Rather as appears from the said judgment, many other considerations were taken into account for judging the comparative merit, and it appears, that as other things were found equal, the matriculation marks were considered. In the present case it has not been placed before the learned Tribunal, or before this Court, as to what was the other criteria taken into account, and what was the comparative criteria, as appointment has been terminated solely on the basis of the marks obtained in the matriculation examination, therefore, this judgment does not help the cause of the private respondent. Thus, taken from any stand point, in our view, the impugned order Annexure-4, so also the order of the learned Tribunal Annexure-8 cannot be sustained, and are hereby quashed. With all natural and normal consequences. However, so far back wages is concerned, considering the peculiar circumstances of the present case, including the fact, that even for this appointment the person was not required to be out of job, rather one of the requirement was, that he should be having other income. We think it appropriate to 8 direct that the petitioner shall be entitled to 50% of the back wages. The writ petition is accordingly allowed as above. ( DEO NARAYAN THANVI ),J. ( N P GUPTA ),J. /Sushil/