IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 5.7.2010 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMARAO AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL Writ Petitions No.31089 of 2007 and 15089 of 2008 with M.P.No.1 of 2007 in W.P.No.31089 of 2007 and M.P.No.1 of 2008 in W.P.No.15089 of 2008 W.P.No.31089 of 2007: 1.P.Gopinath 2.R.Aruldoss 3.M.Karmegam 4.S.Palani 5.K.Kirubanadam 6.T.D.Muralidharan 7.K.Sekarbabu ... Petitioners Vs. 1.The Registrar, Central Administrative Tribunal, Madars Bench, Chennai. 2. Union of India, represented by the Postmaster General, Chennai City Region (TN), Chennai-600002. 3. The Director of Postal Services, Chennai City Region, Chennai-600 002 4. The Sr.Superintendent of Post Offices, Vellore City Region, Chennai-600002. 5.S.Ravichandran 6.K.K.Gopinathanraja 7.M.Narasimhan https://hcservices.ecourts.gov.in/hcservices/ 8.A.Pachaimuthu 9.S.Varadaraj 10.G.Damodaran ... Respondents W.P.No.15089 of 2008: 1. Union of India, rep.by the Postmaster General, Chennai City Region (TN), Chennai-600002. 2. The Director of Postal Services, Chennai City Region, Chennai-600002. 3. The Sr.Superintendent of Post Offices, Vellore Division, Vellore-632002. ... Petitioners Vs. 1.S.Ravichandran 2.K.K.Gopinatharaj 3.M.Narasimhan 4.P.Gopinath 5.R.Aruldoss 6.M.Karmegam 7.S.Palani 8.T.D.Muralidharan 9.A.Pachaimuthu 10.K.Kirubanandam 11.K.Sekarbabu 12.S.Varadaraj 13.G.Damodaran 14.The Central Administrative Tribunal, rep.by its Registrar, High Court, Chennai-600104. ... Respondents Both the Writ Petitions are filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari to call for the records of the Central Administrative Tribunal,Chennai in O.A.No.163 of 2006, dated 1.3.2007 and quash the same. For petitioners in WP.31089/07, who are R.4 to : Mr.V.Raghavachari https://hcservices.ecourts.gov.in/hcservices/ R.8, R.10 & R.11 in WP.15089/08 : For the appellants in WP.15089/08 : Mr.R.Priyakumar,ACGSC For R.2 to R.4 in WP.31089/07 : Mrs.R.Maheswari, SCGSC For R.5 to R.7 in : Mr.G.V.Krishnaprasad WP.31089/07, who are R.1 to R.3 in WP.15089/08 For R.8 to R.10 in WP.31089/2007, : No representation who are R.9, R.12 & R.13 in WP.15089/08 COMMON ORDER ELIPE DHARMARAO, J. Since both the matters arise from out of the same order of the Tribunal, they are taken up together and are being disposed of by this common order. 2. For the sake of convenience and easy reference, the parties are referred to as per their ranking in W.P.No.31089 of 2007. 3. To fill up the posts of postman from among Group 'D'/Gramin Dak Sevaks (in short 'GDS'), the Chief Postmaster General, Chennai has sent a letter dated 14.2.2005 to various units to call for applications from the eligible candidates. Pursuant thereto, the Senior Superintendent of Post Offices, Vellore Division, by his letter No.B2/1-2/2-5, dated 17.3.2005 has called for applications from the eligible group D/GDS to submit their applications for a departmental examination for promotion to the cadre of postman from among Group D/GDS to be conducted on 12.6.2005. In response to the said notification, the petitioners and the party respondents have applied for and have gone through the entire process of selection. The entire process of selection was complete by 18.8.2005. While the respondents 5 to 7 did not succeed in the selection process, the other party respondents and the petitioners got selected and joined as Postmen at various post offices of Vellore District on 1.9.2005, as per orders in Memo No.B2/1-2/05, dated 18.8.2005. Aggrieved by their non-selection, the respondents 5 to 7 herein by name (i) S.Ravichandran, (ii) K.K.Gopinathanraja and (iii) M.Narasimhan have filed O.A.No.163 of 2006 before the Tribunal on 19.2.2006, praying to declare the notifications dated 9.6.2005 and 17.3.2005 and the consequent selection process conducted in the matter of promotion of https://hcservices.ecourts.gov.in/hcservices/ the GDS officials to the posts of postman in Vellore Division as contrary to the Rules/Instructions and so invalid, so far as it relates to GDS officials of the Vellore Division are concerned and to direct the official respondents to fill in the vacancies of Postman cadre in the Vellore Division for the year 2003-04 strictly in accordance with the existing Postman Recruitment Rules and DG (Posts) instructions issued on the subject, by duly notifying the total number of postman vacancies and the entitled allotment of vacancies against the respective heads/quota for GDS officials and complete the selection process as per the Rules within the time frame to be fixed by the Tribunal. As the Tribunal has allowed the said O.A., thereby directing the official respondents to issue revised orders indicating the vacancies to be filled in accordance with the Recruitment Rules issued on 6.7.1989 and also conduct fresh Departmental Examination as per rules, not only some of the selected candidates, but also the Administration have come forward to file these writ petitions. 4. The unanimous argument advanced on the part of the Administration and the successful candidates is that the Tribunal has completely failed to take note of the situation that the applicants/respondents 5 to 7 having unsuccessfully participated in the entire selection process, have belatedly challenged the very same selection process on some flimsy grounds and the Tribunal also without considering this basic aspect, has proceeded to assess the case and has ultimately arrived at the conclusion of upholding the contentions of the unsuccessful candidates, ignoring the fact that by ordering fresh selection, it is unsettling the settled position since all the selected candidates have joined their respective duties and have also put in considerable length of service by the time the O.A. was filed. It has also been submitted on the part of the Administration and the successful candidates that the evaluation procedure has not been properly assessed by the Tribunal, leading to its landing in an erroneous conclusion. 5. On the part of the unsuccessful candidates, arguments have been advanced justifying the order passed by the Tribunal. They have also submitted that the Tribunal has called for the answer sheets and on complete assessment of the entire factual matrix has allowed the original application filed by them and would pray to dismiss these writ petitions. 6. Before discussing the factual matrix of the case, it must be noted that it is an unassailable, rather an admitted fact, that the applicants before the Tribunal are the unsuccessful candidates, who have challenged the entire selection process, having unsuccessfully participated in the same without raising their little finger either before or during the course of selection process. 7. This has been commented on the part of the Administration and also the successful candidates that the unsuccessful candidates were https://hcservices.ecourts.gov.in/hcservices/ not definite of the strength of their case and that is the reason that they did not seek any interim stay either of the selection process or the operation of the order of selection made by the proceeding dated 18.8.2005 and having allowed the situation to come to a grinding halt since the selected candidates have already joined their posts and have put in more than six months of service even by the time the Original Application was filed, the unsuccessful candidates are turning round to challenge the Rules after they had appeared in the examination and the selection process, which should not be allowed, since would have serious repercussions on the life of the selected candidates. 8. The legal position on the point involved - whether an unsuccessful candidate, who has participated in the process of selection without any challenge, could challenge the same – has already been considered in umpteen number of cases by the upper forums of law, particularly by the Honourable Apex Court and answered the said question in negative. To cite a few, in DHANANJAY MALIK vs. STATE OF UTTARANCHL [(2008) 4 SCC 171 = AIR 2008 SC 1913], the Honourable Apex Court has held that: "Having unsuccessfully participated in the process of selection without any demur, they are estopped from challenging the selection criterion. If they had any valid objection, they should have challenged the advertisement and selection process without participating in the selection." 9. In TRIDIP KUMAR DINGAL vs. STATE OF W.B. [(2009) 1 SCC 768, relied on by the learned counsel for the writ petitioners, while dealing with a similar situation, the Honourable Apex Court has held, in no uncertain terms, that: "unsuccessful candidates having participated in the selection process without any objection or protest, could not be allowed to turn around and challenge the selection as illegal or null and void" 10. Following the above dicta laid down by the Honourable Apex Court, it can be held that the challenge of the unsuccessful candidates to the very selection criterion, having unsuccessfully participated in the entire process of selection, should not have been entertained by the Tribunal and should have rejected the claim of the unsuccessful candidates at the very threshold as not maintainable. Instead, the Tribunal has proceeded not only to entertain the application, but also to allow the same, without even considering this aspect of maintainability. 11. The other aspect that has been completely ignored consideration by the Tribunal is that there is inordinate and unexplained delay in challenging the selection process by the unsuccessful candidates. As has already been pointed out supra, the entire selection process was complete by 18.8.2005 and the selected https://hcservices.ecourts.gov.in/hcservices/ candidates have joined their duties on 1.9.2005, as per the orders of the Administration dated 18.8.2005. But, the applicants/respondents 5 to 7 have chosen to file the O.A.No.163 of 2006, challenging the entire selection criterion, only on 19.2.2006, by which time, the selected candidates have put in 5½ months of service. Significantly, no interim order has also been sought for by the applicants/respondents 5 to 7 before the Tribunal and as against the clause No.9 in the Original Application, regarding 'Interim Relief, if any, prayed for', it has been mentioned by them as 'NIL'. The order of the Tribunal was passed on 1.3.2007 and thus, by the time the order has been passed by the Tribunal, the selected candidates have put in eighteen months of service. 12. Delay defeats equity. In P.S.SADASIVASWAMY vs. STATE OF T.N. [(1975) 1 SCC 152], the Honourable Apex Court has held as follows: “2. … It is not that there is any period of limitation for the courts to exercise their powers under Article 226 nor is it that there can never be a case where the courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the court to put forward stale claims and try to unsettle settled matters.” 13. This case squarely apply to the case on hand since the applicants/respondents 5 to 7 allowed the things to happen i.e. allowed the successful candidates to join duty and put in considerable length of service and thereafter approached the tribunal, that too, without claiming for any interim relief, which has further made the successful candidates to continue in service. As has been pointed out supra, no reason, whatsoever, has been offered on the part of the applicants/respondents 5 to 7 for such an inordinate delay and belated claim. 14. Further, in TRIDIP KUMAR DINGAL vs. STATE OF W.B. (2009) 1 SCC 768 also, the Honourable Apex Court has held as follows: "If the petitioner wants to invoke jurisdiction of a writ court, he should come to the Court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have already been disposed of or settled or where the rights of third parties have accrued in the meantime. This principle https://hcservices.ecourts.gov.in/hcservices/ applies even in case of an infringement of fundamental right." Therefore, the Tribunal, should have assessed all these aspects before entertaining the belated claim of the unsuccessful candidates. On this ground also, the claim of the applicants/respondents 5 to 7 needs to be rejected. 15. It has been submitted on the part of the petitioners/selected candidates that they were Gramin Dak Sevaks (GDS) in Postal Service and petitioners 1 to 3 were absorbed by the Army Postal Service (APS) and they were marked in Group 'D' post in the Army service similar to sepoys; that the first petitioner was placed in Rajauri, Jammu and Kashmir; the 2nd petitioner was placed at Dimapur, Nagaland and the third petitioner at Dods District, Jammu and Kashmir. It has also been submitted that the 7th petitioner Sekar Babu is about 52 years and if the selection is upset, he has no opportunity to partake in the process of selection in future. These factual aspects averred on the part of the writ petitioners/selected candidates were not disputed on the part of the unsuccessful candidates. 16. In these circumstances, we feel it apt to quote a judgment of the Honourable Apex Court in BUDDHI NATH CHAUDHARY vs. ABAHI KUMAR [(2001) 3 SCC 328], wherein though the appointments were held to be improper, the Honourable Apex Court did not disturb the appointments on the ground that the incumbents had worked for several years and had gained good experience. The Honourable Apex Court has held that “We have extended equitable considerations to such selected candidates who have worked on the post for a long period”. 17. In view of the above factual situation, giving equitable consideration to the selected candidates who have put in a considerable length of service, having got the appointments after much struggle at various stations, their services should be protected. On this ground also, the belated and stale claim of the unsuccessful candidates cannot be appreciated. 18. The Tribunal has observed in its order that for three Army Postal Service candidates only one examiner was nominated. But, on a perusal of the entire materials placed on record, we are not able to accept this conclusion arrived at by the Tribunal for the reason that more than 19 Army Postal Services candidates were examined by one examiner and the instructions in Para No.3 of the Appendix-37 of the Postal Manual Volume provides that more than one examiner can be appointed for the same paper. It is also seen that the unsuccessful candidates have not written the question numbers for the answers written by them, resulting in their securing '0' marks. The Tribunal has proceeded on the basis that there is no instruction to the candidate to write the question number as against the answer and therefore, the candidate cannot be penalised. This reasoning of the Tribunal, appears to be silly. It is the common knowledge of anybody https://hcservices.ecourts.gov.in/hcservices/ that only after putting the question number, the candidate has to write the answer, otherwise, it will be difficult for the examiner to assess as to which question the candidate has answered. On the part of the Administration, it has been submitted that a copy of model entries and guidelines for making entries in postman book have been circulated to all the concerned, according to which, the serial numbers are to be shown. Therefore, even on this score, the case of the applicants/respondents 5 to 7 deserve no merit. 19. The Tribunal has observed that as per the Recruitment Rules notified by the Department of Posts on 6.7.1989, 50% of vacancies in the postman cadre are to be filled by promotion and remaining 50% to be filled up from GDS and that the Department was not justified in treating the GDS quota as direct quota. 20. For this, on the part of the Administration, it has been submitted that the GDS are a separate set of employees, treated as outsiders for selection to the cadre of postman under Direct quota meant for GDS; that the Recruitment Rules for Postman provide only two methods of recruitment, one is direct recruitment and the other by promotion; that for 50% of vacancies earmarked for Departmental quota i.e. Promotion, departmental officials in Group 'D' cadre are selected on the basis of Departmental examination and for the 50% of vacancies earmarked for direct recruitment, EDAs (GDS) are considered; that the GDS are not departmental employees and separate quota of vacancies are not marked as 'GDS quota'; that in Postal Directorate's Letter No.44-44/82-SPB-II, dated 7.4.1989, it was clarified that 50% of vacancies meant for outsiders quota are to be filled up among the GDS, which should be further divided to two halves; that filling up of direct recruitment quota of vacancies is subjected to clearance by the Screening Committee, which was constituted as per the directives of the Department of Personnel and Training vide OM.No.2/8/2001-PIC, dated 11.5.2001; that the restriction of the direct recruitment quota vacancies to be filled up to the extent of 1/3rd of vacancies limited to 1% of strength was stipulated by the Nodal Ministry viz. The Ministry of Personnel, Department of Personnel and Training, based on the orders of the Government of India, which is applicable to all the Central Government Departments and the restriction in filling up of direct recruitment vacancies is not the decision taken by the Postal Department, but by the Government of India and this is in force for the last five years. It has also been submitted that these rules have been made as statutory rules as per the Notification in DG's letter No.44-31/87-SPB-I, dated 6.7.1989 and also as per the further Notification in DG's letter No.44-29/94-SPB-I, dated 30.1.1995, being framed under the proviso to Article 309 of the Constitution and were notified in the Gazette of India. No material, whatsoever, has been submitted on the part of the applicants/respondents 5 to 7, to disprove the above facts narrated by the Administrations, backed by the Statutory rules governing the subject. Therefore, even on this https://hcservices.ecourts.gov.in/hcservices/ count, we are not able to appreciate the reasonings offered by the Tribunal. 21. On the part of the applicants/respondents 5 to 7, it has been argued that the High Court, dealing with a case filed under Article 226 of the Constitution of India, cannot reappreciate the evidence and would rely on a judgment of the Honourable Apex Court in HARBANS LAL vs. JAGMOHAN SARAN [AIR 1986 SC 302], wherein it has been held: "A writ in the nature of certiorari may be issued only if the order of the inferior tribunal or subordinate Court suffers from the error of jurisdiction, or from a breach of the principles of natural justice or is vitiated by a manifest or apparent error of law. There is no sanction enabling the High Court to reappraise the evidence without sufficient reason in law and reach findings of fact contrary to those rendered by an inferior Court or subordinate Court. When a High Court proceeds to do so, it acts plainly in excess of its powers." 22. At the cost of repetition, it must be mentioned that the very claim of the unsuccessful candidates before the Tribunal is not maintainable for the simple reason that having unsuccessfully participated in the entire selection process without any demur, they have resorted to challenging the selection process with a much delay, allowing the things to settle down in between. Further more, we have already discussed as to how the Tribunal has proceeded on a wrong footing to arrive at an unjustifiable conclusion of thwarting the livelihood of the properly selected candidates. Further more, in NATIONAL THERMAL POWER CORPORATION LIMITED vs. MAHESH DUTTA AND OTHERS [(2009) 8 SCC 339], the Honourable Apex Court has held that ".... There is no law denying or debarring High Court from entering into a disputed question of fact. The issue will have to be determined keeping in view the fact situation obtaining in each case. If a disputed question can be determined on the basis of the documents and/or affidavit, the High Court may not ordinarily refuse to do so. In a given case, it may also examine witnesses." 23. Therefore, the Honourable Apex Court has made it clear that if the fact situation can be determined on the basis of the documents and/or affidavit, the High Court may not ordinarily refuse to do so. In view of this latest decision of the Honourable Apex Court, the judgment cited on the part of the applicants/respondents 5 to 7 has no application to the facts of the case on hand. 24. Before parting with, we have no hesitation to hold that the unsuccessful candidates have made stale claims, having unsuccessfully participated throughout the selection process without any demur, that too with an inordinate and unexplained delay and trying to unsettle settled matters. https://hcservices.ecourts.gov.in/hcservices/ We are not able to appreciate any of the reasonings offered by the Tribunal in the process of its arriving at the conclusion of allowing the stale claim of the unsuccessful candidates. Therefore, both these writ petitions are allowed, setting aside the order of the Tribunal. No costs. Consequently, connected Miscellaneous Petitions are closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. Rao To 1. The Registrar, Central Administrative Tribunal, Madras Bench, Chennai. 2. The Postmaster General, Chennai City Region (TN), Chennai-600002. 3. The Sr.Superintendent of Post Offices, Vellore City Region, Chennai-600002. 4. The Director of Postal Services, Chennai City Region, Chennai-600 002 1 cc To Mr.R.Priyakumar, ACGST, SR.48531 1 cc To Mr.V.Raghavachari, Advocate, SR.47662 1 cc To Mr.R.Maheswari, SCGSC Advocate, SR.47919 Common order in W.P.Nos.31089/07 & 15089/2008 TRM (CO) RH (20.7.10) https://hcservices.ecourts.gov.in/hcservices/