Case: THE SUPERINTENDENT OF POST OFFICES Vs. HANUMAN GIRI

in this Division (which is a reference to Banda Division as the said Notification is issued from Banda Division). Hence qualified candidates will have to go to other Divisions on availability of vacancy. It further states that no candidate will be posted in Banda Division in any circumstance. In our view the said instructions as contained in the Notification dated 24.05.1991 is to be kept in perspective while examining the other aspects of the matter since from the rival contentions it assumes significance and would be relevant to take note so as to conclude whether the respondent herein should be promoted based on his rank in the merit list at Serial No.12 relating to Banda Division or as to whether the vacancy position is to be taken note in the background of the common merit list relating to the Delivery Agents of all Divisions against the 17 vacancies in Kanpur Head Post Offices. Though the learned counsel for the respondent seeks to contend that the position of the respondent being at Serial No.12 has been admitted in all earlier proceedings and the appellants cannot be allowed to resile from the said position, it would be necessary to examine as to whether the merit of the respondent at Serial No.12 relates to the common merit list of all divisions or as to whether he was at Serial No.12 of the merit list limited to Banda Division. Such consideration, in our view, is necessary as it is the only issue which is germane for the purpose of decision making herein. 10. In that background, as already taken note by us the genesis of the case being a consideration made in O.A.No.546/1992 it would be necessary to take note of the nature of consideration made therein. In the said proceedings, the applicants therein namely, Shri Jagmohan Yadav and others while assailing the action of appellants herein had contended that the candidates of Banda Division could be posted against the unfilled vacancies of Kanpur Head Post Offices and Kanpur City Postal Division. It is no doubt true that the appellants herein in order to oppose the said contention had stated in the said proceedings that the 17 left over vacancies of Kanpur Head Post Offices which is Group-A Post Office are to be filled from Local Postal Division as per the extant rules and cannot be filled by the staff of other Divisions. The conclusion reached by the CAT after taking note of the rules is that there was no averment by the respondent that those 17 vacancies of Kanpur Head Post Offices have been filled from the other Local Divisions or any other Division. By an implication it was noted that no more selected staff was available for filling up the balance 17 vacancies from Delivery Agents of Kanpur Local Postal Division. In that circumstance, it was held that on declaration of the result the staff of Banda Division can also be eligible to be considered for 17 vacancies of Kanpur Head Post Offices as per Rules. It was, therefore, held therein that the stand taken by the appellants herein to the effect that vacancies of Kanpur Head Post Offices cannot be filled by the staff of other Divisions than those located at Kanpur is not tenable. In that circumstance, it was directed that the results of other candidates from all Divisions is to be declared and the 17 posts are to be filled up. It was precisely held as hereunder:?In the present case as we have held earlier, 17 vacancies of Kanpur Head Post Offices were left unfilled and the same should have been filled by successful staff of Banda Division or any other Division as applicable.?11. Therefore, the basis on which the consideration was made subsequent thereto including promotion of Shri Jagmohan Yadav, though belatedly, was based on the marks obtained in the merit list. On that aspect it is to be taken note that though the merit list of Fatehpur Division, Fatehgarh Division and Banda Division are separately maintained, a common merit list of Delivery Agents in respect of Kanpur Region which includes Fatehpur Division, Fatehgarh Division and Banda Division relating to the examinations conducted in the year 1991 was also maintained. As noticed, the very Notification dated 24.05.1991 indicates that though the examinations are held the qualified candidates will have to go to other Divisions on availability of vacancy as there was no vacancy of Postman in Banda Division. If that be the position in respect of the unfilled 17 vacancies of Kanpur Head Post Offices, the persons in order of merit from all Divisions including Banda Division wherein the respondent was working would be entitled to be considered based on common merit list. 12. In that situation though in the merit list of Banda Division Shri Jagmohan Yadav was at Serial No.1 and thE respondent herein was at Serial No.12, in the common merit list Shri Jagmohan Yadav was at Serial No.2 while the respondent herein was at Serial No.43. The total marks obtained by the candidates would indicate that the person at Serial No.17 in the said common merit list had obtained 131 marks and after the said candidate there are several other candidates who had obtained marks up to 128, after which the respondent having obtained 127.5 is at Serial No.43. In such situation ignoring the others, the respondent herein in any event cannot be promoted. Hence the consideration made by the CAT in favour of the respondent herein would not be justified. Though ultimately in the Review Petition before the High Court the fact that the respondent had not secured more marks than Shri Jagmohan Yadav was taken note and was clarified that even otherwise the direction issued was appropriate, we find that despite all the factors as noticed above it appears that what weighed in the mind of the CAT in O.A.No.888/2009 was a wrong assumption of the respondent being more meritorious than the candidate who was granted benefit due to the earlier orders.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]8. We have extensively heard Shri Vikramjit Banerjee learned Additional Solicitor General appearing for the appellants, Shri S.D. Singh learned counsel for the respondent and perused the appeal papers including the additional documents brought on record along with an application. We have also taken note of the objections raised by the learned counsel for the respondent contending that the documents sought to be relied upon in the instant proceedings is against the admitted factual position. However, in a matter of the present nature where the records are maintained by the employer, unless the authenticity of the said document is in doubt, there would be no impediment for this Court to take note of the documents which are brought on record in an appropriateour view the said instructions as contained in the Notification dated 24.05.1991 is to be kept in perspective while examining the other aspects of the matter since from the rival contentions it assumes significance and would be relevant to take note so as to conclude whether the respondent herein should be promoted based on his rank in the merit list at Serial No.12 relating to Banda Division or as to whether the vacancy position is to be taken note in the background of the common merit list relating to the Delivery Agents of all Divisions against the 17 vacancies in Kanpur Head Postconsideration, in our view, is necessary as it is the only issue which is germane for the purpose of decision making herein.Therefore, the basis on which the consideration was made subsequent thereto including promotion of Shri Jagmohan Yadav, though belatedly, was based on the marks obtained in the merit list. On that aspect it is to be taken note that though the merit list of Fatehpur Division, Fatehgarh Division and Banda Division are separately maintained, a common merit list of Delivery Agents in respect of Kanpur Region which includes Fatehpur Division, Fatehgarh Division and Banda Division relating to the examinations conducted in the year 1991 was also maintained. As noticed, the very Notification dated 24.05.1991 indicates that though the examinations are held the qualified candidates will have to go to other Divisions on availability of vacancy as there was no vacancy of Postman in Banda Division. If that be the position in respect of the unfilled 17 vacancies of Kanpur Head Post Offices, the persons in order of merit from all Divisions including Banda Division wherein the respondent was working would be entitled to be considered based on common merit list.In that situation though in the merit list of Banda Division Shri Jagmohan Yadav was at Serial No.1 and thE respondent herein was at Serial No.12, in the common merit list Shri Jagmohan Yadav was at Serial No.2 while the respondent herein was at Serial No.43. The total marks obtained by the candidates would indicate that the person at Serial No.17 in the said common merit list had obtained 131 marks and after the said candidate there are several other candidates who had obtained marks up to 128, after which the respondent having obtained 127.5 is at Serial No.43. In such situation ignoring the others, the respondent herein in any event cannot be promoted. Hence the consideration made by the CAT in favour of the respondent herein would not be justified. Though ultimately in the Review Petition before the High Court the fact that the respondent had not secured more marks than Shri Jagmohan Yadav was taken note and was clarified that even otherwise the direction issued was appropriate, we find that despite all the factors as noticed above it appears that what weighed in the mind of the CAT in O.A.No.888/2009 was a wrong assumption of the respondent being more meritorious than the candidate who was granted benefit due to the earlier orders.