Prasad Vs. Union of India & Ors  INSC 1629 (17 December 1996)
Singh, S.B. Majmudar S.B. Majmudar. J.
consent of learned advocates representing the respective parties the appeal was
heard finally and is being disposed of by this judgment. The short question
involved in this judgment. The short question involved in this appeal is as to
whether the appointment of respondent no.7 as Extra Department Branch Post
Master, bypassing the appellant was legally justified or not. The Central
Administrative Tribunal, Patna Bench, Patna has taken the view that though the
appellant was more qualified to be appointed on the said post respondent no.7
was rightly appointed as the appellant was disqualified due to the fact that
his cousin brother was already working in the same Post Office as Extra
Department Delivery Assistant. Consequently the Tribunal dismissed the
appellant's application O.A.192 of 194 and confirmed the appointment of
respondent no.7 on the said post.
counsel for the appellant has contended that the aforesaid reasoning adopted by
the Tribunal is patently erroneous and consequently the decision of the
Tribunal deserves to be set aside.
counsel for respondent no.7, who is the main contesting respondent, on the
other hand submitted that the Tribunal was justified in dismissing the
appellant's application both on the ground of limitation as well as on merits.
He submitted that respondent no.7 was appointed on 16th July 1992. If any grievance was to be made about the appointment of
respondent no.7 by the appellant then the application should have been moved
within one year, that is, by 16th July 1993.
Instead it was filed in January 1994. The appellant had failed to make out any
sufficient cause for not filing the said application in time. The delay for the
period from August 1993 to January 1994 remained unexplained and was rightly
not condoned by the Tribunal. On merits it was submitted that the authorities
had taken a decision on 17th October 1966 to the effect that employment of near
relatives in the same office was to be avoided and as appellant's cousin
brother was already working in the same Post Office, namely, the Branch Post
Office, the appellant could not be appointed even though he may be more
meritorious than respondent no.7.
view the Tribunal was patently in error in dismissing the application of the
appellant both on the ground of limitation as well as on merits. So far as the
question of limitation is concerned it is true that the appointment of
respondent no.7 was effected by the authorities on 16th July 1992 and consequently the application could have been filed
before the Tribunal within one year from that date. But the appellant had
already produced before the Tribunal material to indicate that he was not well
from 20th August 1993 and he had recovered only by the
end of December 1993. We fail to appreciate how this aspect was at all
relevant. Learned counsel for respondent no.7 also rightly submitted that what
was to be explained by the appellant was the delay from August 1993 to January
1994. If that is so the appellant had already produced the Medical Certificate
showing his illness from 20th
August 1993 to 22nd December 1993. If this period is excluded then
the delay in filing the application remains minimal which deserves to be
condoned in the interest of justice. We, therefore, hold that the appellant had
made out sufficient and the said delay deserves to be condoned. That takes us
to the merits of the controversy.
Tribunal has itself noted that as compared to respondent no.7 the appellant was
more meritorious. He had obtained 546 marks in the first division in
Matriculation examination as compared to respondent no.7 who had passed in
third division and got 404 marks. In Class VII examination the appellant had
got 468 marks while respondent no.7 had got 220 marks. The appellant's annual
income was Rs.17,000/- while respondent no.7's annual income was Rs.7,500/-.
The Tribunal has rightly noted that they were impressed by the high marks
secured by the appellant and in the normal circumstances has should have been
the only choice for the post. However according to the Tribunal there were two
handicaps from which the appellant suffered. The first handicap was that his
cousin brother Bhola Prassad was working in the Post Office as Extra Department
Delivery Assistant and the second handicap was about limitation. We have
already dealt with the second handicap which according to the Tribunal was
liable to non-suit the appellant. In our view no such handicap remained as the
delay in filing the application deserves to be condoned in the interest of
justice and we have done so. So far as the other handicap is concerned it is
the only handicap which remains for consideration. In our view it is no
handicap at all. The decision of the authorities dated 17th October 1966 reads
of near relatives in the same office to be avoided.
have come to light where very near relations have been appointed to work as ED,
BPM, ED, DA or ED Mail Carrier in the same office. As this is fraught with the
risk of frauds, etc., this should be avoided." It is difficult to
appreciate how pursuant to the said decision the appellant could have been
treated as not qualified to be appointed as Extra Department Branch Post Master
in the Post Office. His cousin brother was working on a lower post of Extra
Department Delivery Assistant. He would be performing a manual work of
effecting delivery of postal articles to the addressees. Only because
appellant's cousin brother was working as a Peon in the said Post Office going
such manual work it passes our comprehension how the appellant could not be
appointed as Extra Department Branch Post Master in the said Post Office. There
is no rhyme or reason underlying such an approach on the part of the
authorities. To say the least it would be totally arbitrary and irrational.
Even if there may be any risk of fraud etc.
non-relatives can be guilty of frauds while on the contrary relatives may not
be brone to such frauds. But even if they are appropriate procedure can be
adopted for detecting such frauds and bringing the guilty to book or even for
effectively checking such tendencies by having appropriate vigilance machinery.
But to refuse to appoint a more meritorious candidate only on the ground that
his cousin brother was working in the same Post Office would, in our view, be
totally an arbitrary exercise of power which cannot be countenanced on the
touchstone of Article 14 of the Constitution of India. We asked learned counsel
for the appointing authority as to whether there is any other disqualification
of the appellant save and except the ground of his cousin brother being working
as Peon doing the manual work in the Post Office. He fairly stated that there
is no other ground excepting this ground. In our view such a ground cannot be
sustained from any viewpoint and must be held to be totally arbitrary and
irrational. The Tribunal was not justified in nonsuiting the appellant on merits
only on this ground. Learned counsel for respondent no.7 submitted that even if
the appellant has a good case on merits he should not be disturbed as he is
working at his own residence as Extra Department Branch Post Master since about
four years and more. That is neither here nor there.
it is found that the appellant was more meritorious as compared to respondent
no.7 ad deserves to be appointed on merits and his claim was not considered on
a totally irrational and arbitrary ground the legal consequences resulting from
the voiding of such an illegal exercise must follow.
result this appeal is allowed. The judgment and order rendered by the Central
Administrative Tribunal, Patna in O.A. No.192 of 1994 are quashed
and set aside. The said application is allowed. The impugned appointment of
respondent no.7 as Extra Department Branch Post Master is quashed and set
aside. The authorities are directed to appoint the appellant as Extra
Department Branch Post Master in the place of respondent no.7 and allow him to
work as such in accordance with rules and regulations of the Department, by
running the Post Office on his premises. In the facts and circumstances of the
case there will be no order as to costs.