JAHAR SINGH A v.

UNION OF INDIA AND OTHERS

SEPTEMBER 13, 1996 B

[M.K. MUKHARJEE AND S.P. KURDUKAR, JJ.]

Se1Vice Law:

Appointme11t-Appella11t after obtaining the due pennission appeared in the examination for the post of accou11ta11t and qualified-His ca11didature C was cancelled on the grou11d of bei11g L.D. C. and for orga11isatio11al ineligibility-Held, C01icellation of the candidature illegal-Other siinilarly :situated persons allowed to appear-Contrary and conflicting stands in opposing the appeal only to fore stall the claim of the appellant-Appellant e11titled to all the consequential be11efits upon his having been declared D successful.

The appellant, an employee of the Savings Bank Control Organisa tion (SBCO), Uttar Pradesh Circle, under the Ministry of Communica tions, appeared in the examination held for appointment of Accountants in the Post Office and Railway Mail Service and qualified. lnspite of his being (fUalified, he did not get any appointment as an Accountant but on the other hand he was intimated by Assistant Director General, New Delhi vide letter dated July 23rd, 1993 addressed to ADDS (Rectt.) U.P. Circle

that as the appellant was working as Lower Division Clerk (LDC) in the SBCO, he was not eligible to appear in the aforesaid examination and his candidature be immediately cancelled. The representation of the appellant against the cancellation of his candidature having been rejected by the Director General of Post, New Delhi, the appellant approached the Central Administrative Tribunal. Before the Tribunal the respondent contested the claim of the appellant on the ground mentioned in letter dated 23rd July, G 1993 and also on the ground that there was a separation of cadre of Assistants of SBCO from that of the PO and RMS. The Tribunal held that the respondents were not justified in cancelling his candidature and set . aside the order dated 23rd July, 1993. But the Tribunal did not grant the main relief of appointment for the reason that there was separation of cadres of Assistants of SBCO from those PO and RMS.

H 237

A The appellant moved this Court in appeal. The respondents contested on the ground that the appellant was not eligible as he was an L.D.C. and that the permission was granted inadvertantly as there was organisational ineligibility of the appellant to appear in the examination due to seperation of cadres.

Allowing the appeal, this Court

HELD : 1. The respondents have taken different and contradictory stands and filed affidavits making patently incorrect and untrue statements only to forestall the claim of the appellant. [242-A]

2. The cancellation of the candidature of the appellant on the ground that he was LDC (SBCO) is unfounded which is apparent from the letter dated 23rd July, 1993 itself, wherein the respondent mentioned the designation of the appellant as P.A. and not LDC, as well as from the affidavit filed in this Court by the respondent on March 29th, 1996 wherein it was D stated that the appellant was Postal Assistant in Savings Bank Control

Organisation. [242-B-C]

3. The plea of organisational ineligibility of the appellant to appear in the examination is also without any substance, as the respondent allowed E two P.As. of the SBCO to appear in the examination held in the year 1993 for appointment as Accountant. Therefore, the rule and the circular shown by the respondent disentitling the 8ppellant to appear in the examination due to seperation of cadres has no substance. [242-H; 243-G]

4. The impugned order dated 23rd July, 1993 is quashed and the F respondents are directed to grant all the benefits to the appellant consequent upon his having been declared successful in the examination held on 22nd May 1992 for the post of Accountant in P.O. and RMS and this direction has to be complied by 31st October, 1996. [244-A-B]

G CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11929 of 1996.

From the Judgment and Order dated 23.2.96 of the Central Administrative Tribunal, Allahabad in O.A. No. 403 of 1994.

H S. Muralidhar and Ms. Neeru Vaid for the Appellant.

JAHARSINGHv. U.0.1.(M.K.MUKHERJEE, J.] 239

P.A. Chaudhary and C.V. Subba Rao for the Respondents.

The Judgment of the Court was delivered by

M.K. MUKHERJEE, J. Special leave granted. Heard the learned counsel for the parties.

At all material times the appellant was - and still is - an employee of Savings Bank Control Organisation (SBCO), Uttar Pradesh Circle, under

the Ministry of Communications, Department of Posts, New Delhi. In May 1992 while working in the Agra Head Post Office he appeared in the examination held for appointment of Accountants in the Post Office (PO) C and Railway Mail Services (RMS); and the Senior Superintendent of Post Offices, Agra Division, Agra vide his letter No. 82/Exam/po and RMS/Accountant/92 dated November 30, 1992 informed him that he had qualified for that post. The appellant, however, did not get any appointment to the post of Accountant in spite of his such qualification and, on the contrary, on August 26, 1993, he received a copy of a letter dated July 23, 1993 sent D by Shri AK. Kaushal, an Assistant Director General in the office of the Director General (Posts), New Delhi, to Shri jagdamba Singh, ADOS (Rectt.) attached to the office of the Chief Post Master General, U.P.

Circle, intimating him that as he (the appellant) was working in SBCO as an LDC (Lower Division Clerk) he was not eligible to appear for the PO E and RMS Accountant examination and his candidature may be cancelled immediately, Since this letter has an important hearing on this appeal we quote the same in extenso :

"AK. KAUSHAL

ASSIT. DIR. GENL. (SPN) F

141-230/92-SPB-II 23.7.93

• Dear Shri Singh,

Please refer to your d.o. letter No. Rectt. JM- 67/May-92/3 G dated 4.5.93 regarding posting of Shri Jahar Singh, SBCO Agra H.P.O. as Accountant.

2. The mater has been examined. Since Shri Jahar Singh was working in SBCO as an LDC he was not eligible to appear for the PO & RMS Accountant Exam as per rules. The candidature of H

Shri J ahar Singh may be cancelled immediately and he cannot, therefore, be considered for appointment as an Accountant.

With best wishes,

Shri Jagdamba Singh, AD.O.S. (Rectt.) 0/o the Chief Postmaster General, U.P. Circle,

LUCKNOW

Copy to:

1. The PMG Agra Region, Agra.

Yours sincerely,

(AK. KAUSHAL)

2, Shri Jahar Singh, PA (SBCO) Agra H.P.O. with reference to his letter dated 28.3.1993 addressed to Member (D), Department of Posts, Oak Bhavan, New Delhi,

(AK. KAUSHAL) Asst. Director General (SPN)"

(emphasis supplied)

Against such cancellation of his candidature the appellant made a representation to the Director General of Posts, New Delhi which was rejected. He then filed an original application in the Central Administrative F Tribunal. (CAT) Allahabad Bench wherein he asserted that though his initial appointment in 1983 was as in LDC in SBCO since August 1, 1991 he was working there as a Postal Assistant (PA) and the permission that

" was granted to him to appear in the examination for appointment as an Accountant was unqualified - and not provisional. He, therefore, submitted G that the respondents were not justified in rejecting his claim for appointment to that post after his success in the examination.

In contesting the application the respondents reiterated that the appellant was working as an LDC at the time he appeared for the examination. The other contention that was raised on their behalf was that even H the PAs of SBCO acquired an identity of its own after it (SBCO) was

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JAHARSINGHv. U.O.l. [MK MUKHERTEE, J.] 241

reorganised with effect from August 1, 1991 with a different. and distinct A channel of promotion which. did not entitle them to become Accountants in PO and RMS under the extant Rules.

In disposing of the application the Tribunal observed that though from the admitted facts of the case it was apparent that the appellant was allowed to appear in the examination for appointment as an Accountant B

• I by mistake as he belonged to a separate cadre, the respondents were not justified in cancelling his candidature as he was a bona fide candidate and there was no lapse on his part. It further observed that no rules or circulars were brought to its notice which empowered the respondents to cancel his candidature. Accordingly, the Tribunal set aside the order dated July 23, C 1993 cancelling the candidature of the appellant as an Accountant and all orders made pursuant thereto. Inspite thereof, the Tribunal did not grant the relief sought for by the appellant on the ground that he had become ineligible for promotion to the post of Accountant by virtue of separation of cadres of Assistants of SBCO from those PO and RMS. Dissatisfied with D the above order the appellant filed a review application contending that after having quashed the order of cancellation of his candidature the Tribunal was not justified in refusing him the consequential relief of being appointed as an Accountant in PO and RMS. The Tribunal, however, rejected the application observing that even a defective reasoning of an E order could not be made the basis for setting aside the same in review.

Hence this appeal at the instance of the appellant.

Besides, reiterating the contentions raised before the Tribunal Mr.

Murlidharan, the learned counsel appearing for the appellant submitted, relying upon the averments made by the appellant in the supplementary affidavit he filed in this Court, that the contention of the respondents that P As of SBCO were not eligible for appointment to the post of Accountants

in PO and RMS was patently untrue for in the following year (1993) also PAs of SBCO were permitted to appear in the examination held for the above post. In opposing the above contentions Mr. Chaudhary, the learned G Senior counsel appearing for the respondents, assailed the finding of the Tribunal that the cancellation of the appellant's candidature was improper but supported the other finding of the Tribunal that the appellant was not entitled to the post of Accountant in the PO and RMS, as SBCO has a distinct identity and separate channel of promotion.

A To appreciate the respective contentions of the parties we have

carefully gone through the entire materials on reeord and the only conclusion we draw therefrom is that the respondents have taken different and contradictory stands only to forestall the claim of the appellant and Shri Kaushal, who has filed affidavits on their behalf, has made patently incorrect and untrue statements therein.

From a cursory glance of the letter dated July 23, 1993 written by Sri Kaushal (reproduced earlier) it is apparent that the only ground that was canvassed by the respondents to cancel the candidature of the appellant was tha.t he was working in SBCO as LDC. In the affidavit that Shri C Kaushal filed in this Court on December 9, 1995 while opposing the special leave petition of the appellant, he reiterated :

"He (the appellant) wrongly mentioned in his. application (obviously referring to his application seeking permission to appear in the examination) that he was Postal Assistant and inadvertently he was allowed to sit in the examination. When it was realised that the permission given to him was contrary to the rules it was rightly cancelled and naturally he was not entitled to any consequential benefits."

That the above stand of the respondents, as put forward through the affidavit of Shri Kaushal, is unfounded will be apparent, first from the letter dated July 23, 1993 itself wherein, while indicating that a copy of the letter was being forwarded. to the appellant his designation was shown as 'PA

(SBCO) Agra HPO' - and not LDC - and secondly, from the following statement made by Shri Kaushal in paragraph 3 of his affidavit filed in this Court on March 29, 1996:

"It is submitted that the petitioner Sri Jahar Singh is a postal assistant in Savings Bank Control Organisation ......... "

Since the post the appellant was holding was made the sole basis for G cancelling his candidature - as the letter dated July 23, 1993 clearly demonstrates - the above discussion of ours would have been sufficient to allow this appeal but as later on the respondents took the organisational ineligibility of the appellant to appear in the examination as a further ground for such cancellation we may advert to the same. In canvassing this H ground it has been stated by Shri Kaushal in the affidavit filed ori Decem-

JAHAR SINGH v. U.O.I. [M.K MUKHERJEE, J.] 243

ber 9, 1995 as under: A

"It is further submitted that according to Rule 273 of the Postal Manual Vol. IV Postal Assistants and Sorting Assistants, Railway Mail Service are eligigle for appearing in the examination of Post Office and Railway !Mail Service Accountants. The petitioner B belongs to Savings Bank Control Organisation Unit of Post Office and thus he was not entitled to appear in the said examination held in May, 1992. The petitioner (the appellant) was inadvertently pennitted because on his application f onn he had written his designation as Postal Assistant, SBCO."

(emphasis supplied) c

Apart from the above Rule, reliance has also been placed on a circular dated July 26, 1991 issued by the Assistant Director General, Government of India, Ministry of Communications, Department of Posts, .D which refers to the proposed reorganisation of the SBCO with effect from August 1, 1991, and particular emphasis laid on Para (viii) thereof which reads that "consequent upon reorganisation, the distinct identity of the SBCO will be maintained and Postal Assistants (SBCO) will not be interchangeable with the Postal Assistants of the Post Office."

The above additional ground of the respondents so far it seeks to justify the cancellation of the candidature of the appellant as an Accountant even after he was given permission to appear in the examination in which he came successful is also without any substance. The averment in

the above quoted paragraph that the permission was 'inadvertently' granted F because the appellant had wrote in his application form that his designation was P.A., SBCO is patently incorrect for on the showing of the respondents (as discussed earlier) the appellant was holding that post. Besides, in spite of the above Rules and Circular, two PAs of SBCO, Auraiya Office, namely Satya Prakash and H.C. Ram were permitted to appear in the PO and RMS examination held in the year 1993 for appointment of Accountants G as will be evident from the supplementary affidavit filed by the appellant on February 23, 1996. It is pertinent to mention here that in the affidavit that Shri Kaushal filed later on March 29, 1996, he did not dispute the above assertion of the appellant, nor give any explanation as to why such permission was granted to them in spite of the above Rules and Circular. H

For the foregoing discussion we quash the impugned order dated July 23, 1993 and direct the respondents to grant all the benefits which the appellant would be entitled to consequent upon his having been declared successful in the examination held on May 22, 1992 for the post of Accountant in PO and RMS. This direction should be complied with by October 31, 1996. The appeal is thus allowed with costs, qnantified at Rs. 5,000.

H.K.

Appeal allowed.

. tr: