Mohanty Vs. Union of India & Ors  Insc 151
(20 March 2002)
Shah Mohammmed Quadri & S.N. Variava Syed Shah Mohammed Quadri, J.
appeals are from the judgment and order of the Division Bench of the High Court
of Orissa at Cuttack in O.J.C.No.8733 of 2000 dated September 12, 2000 and final order of November 3, 2000 in Civil Review No.137 of 2000,
unsuccessful petitioner in the said O.J.C. and Civil Review is the appellant.
He was temporarily appointed in the post of Extra Departmental Mail Carriers
(for short, 'the EDMC') in the Sithalo Branch Post Office, by the Assistant
Superintendent of the Post Offices (I/C), Jagatsinghpur Sub- Divisioin, Jagatsinghpur
(for short, 'respondent No.4') on February 1, 1997. He worked in that post till September 3, 1997. He was again appointed as a substitute in the said post
for the period from May
9, 1998 to August 24, 1998 in Palasol Branch Post Office. For
filling up the post on permanent basis, respondent No.4 sent a requisition to
the Employment Exchange to sponsor candidates having qualification of VIII
standard passed for the post of EDMC. It may be mentioned that in the
requisition to Employment Exchange there was no mention that preference will be
given to the candidates who passed matriculation. The Employment Exchange
accordingly sponsored 40 names having VIII class passed qualification and out
of them only 13 candidates applied for the post. As the name of the appellant
did not figure in the list of the candidates sponsored by Employment Exchange,
he filed O.J.C.No.12733 of 1998 before the High Court for a direction to
respondent No.4 to consider his candidature for the said post. Having regard to
the judgment of this Court in Union of India & Division Bench of the High
Court issued a direction to respondent No.4 to consider the case of the
appellant on merit and in accordance with rules and thus disposed of the writ
petition on September 15, 1998. Respondent No.5 who was also aspiring for the
post, having learnt that his name was not sponsored by the Employment Exchange
in response to the requisition of respondent No.4, approached the Central
Administrative Tribunal, Cuttack Bench, Cuttack (for short, 'the Tribunal') for
a direction to consider his candidature for the said post. On January 28, 1999, the Tribunal issued an interim
direction to respondent No.4 to consider the candidature of respondent No.5.
On February 2, 1999, after considering all the
applicants, the fourth respondent selected and appointed the appellant as a
EDMC Palasol Branch Post Office. He joined the post on February 4, 1999 and was working as such. While so,
respondent No.5 questioned the appointment of the appellant before the Tribunal
stating that inspite of being a SSC passed candidate no preference was given to
him. In the counter affidavit filed on behalf of respondent Nos.1 to 4 it was
averred that the appellant was selected on merit and he was senior in age.
order dated August 18,
2000, the Tribunal set
aside the appointment of the appellant by allowing O.A. No.227 of 1999.
Aggrieved by the said order of the Tribunal the appellant filed Writ Petition
(O.J.C. No.8733 of 2000) which was dismissed on September 12, 2000. Then he filed review petition challenging the correctness
of the said order but that was also dismissed on November 3, 2000. The said two orders are assailed in these appeals by
K.Das, the learned counsel appearing for the appellant, contended that the
selection of the appellant was on the basis of merit and not merely on the
ground of age; he fulfilled the requirement of residence; the requisition sent
by Respondent No.5 to the Employment Exchange did not specify that matriculates
would be given preference, therefore, the Tribunal and the High Court erred in
setting aside his appointment.
Choudhary, the learned senior counsel appearing for the Union of India and the
official respondents, submitted that the appointment of the appellant was on
overall consideration of various factors but pursuant to the order of the
Tribunal a fresh selection was made and respondent No.5 had been appointed.
Choudhary, the learned counsel appearing for respondent No.5, contended that
the appellant was appointed on extraneous ground of seniority in age so his
appointment was rightly quashed; that respondent No.5 possessed Higher
Secondary Certificate and had better qualification, so after the order of the
Tribunal he was appointed, therefore, his appointment ought not to be disturbed
in these appeals. He further submitted that the requirement of residence was
subsequently modified and it was not necessary to reside in the area of the
fight is on for a small post of EDMC. The short question that arises for our
consideration is : whether the impugned Judgments and Orders of the High Court
confirming the order of the Tribunal, quashing the appointment of the
appellant, is unsustainable.
perusal of the order of the Tribunal shows that the appointment of the
appellant was set aside taking the view that he was selected solely on the
ground that amongst all the candidates he was the senior most in age and that
was an extraneous consideration. The High Court agreed with the reasoning of
relevant portion of the counter filed by respondent Nos.1 to 4 reads thus :
Bhibudatta Mohanty having essential qualification and senior in age from among
all the candidates has been selected on merit and appointed to the post of EDMC
Palasol BO w.e.f. 4.2.99. In the requisition vide Annexure R-1 there was no
mention regarding giving preference to candidates who have passed HSC
examination and also to the candidates belonging to the reserved
community." [Emphasis supplied] Those averments are attempted to be
diluted in the counter affidavit filed in the special leave petition, which are
inconsistent so we are inclined to ignore them.
in the requisition sent by respondent No.4 to the Employment Exchange
candidates having VIII class passed qualification were called for consideration
and accordingly the Employment Exchange sponsored as many as 40 candidates all
VIII class passed. It is true that the guidelines contained in "Method of
Recruitment" mentions that the minimum educational qualification is VIII
passed and preference will be given to SSC passed. But the requisition did not
specify that preference would be given to SSC passed candidates. Had the fourth
respondent notified this condition, perhaps the Employment Exchange would have
also sponsored SSC passed candidates as well. As the basis of selection was in
terms of requisition to the Employment Exchange, the selection authority has
committed no illegality in not giving preference to SSC passed candidate -
respondent No.5. However, the preference clause for higher qualification does
not mean that irrespective of fulfillment of other norms SSC passed have to be
preferred. Where any rule or guideline provide preference in respect of some
higher qualification, it only means that all other requirements being equal, a
person possessing higher educational qualification will be preferred. It
cannot, however, be considered as the sole criteria for preference in selection
Tribunal did not properly appreciate the order of this Court in Secretary
(Health) Department of Health vs. Dr.Anita Puri and Ors. [JT 1996 (8) SC 130].
Speaking for this Court Pattanaik,J. held :
an advertisement stipulates a particular qualification as the minimum
qualification for the post and further stipulates that preference should be given
for higher qualification, the only meaning it conveys is that some additional weightage
has to be given to the higher qualified candidates. But by no stretch of
imagination it can be construed to mean that a higher qualified person
automatically is entitled to be selected and appointed." In that case the
advertisement, calling applications from B.D.S., did mention that preference
would be given to M.D.S. qualification. In the instant case, the requisition
did not even mention that preference would be given to SSC passed candidates.
Therefore, respondent No.5 could not have claimed any preferential treatment in
the Tribunal is not right in ignoring the averment in the counter affidavit of
the official respondents, extracted above, that the appellant was selected on
merit and erred in holding that the selection was made solely on the ground
that amongst all the candidates he was the seniormost in the age. It is thus
clear that the selection of the appellant was on merit and not solely on the
ground of being senior in age. It cannot be disputed that a selection solely on
the basis of being senior in age is vitiated by extraneous consideration. But
when, as in this case, the selection is on the basis of merit, merely because
the seniority in age of the candidate is also taken into consideration, it
would not be right to invalidate the selection.
properly examining the contents of the counter affidavit the High Court
sustained the order of the Tribunal. In the light of the above discussion, we
are of the view that the selection of the appellant was wrongly set aside.
Insofar as the selection of respondent No.5 is concerned that is a
consequential action and it cannot stand as the impugned orders of setting
aside the selection and the appointment of the appellant is held to be bad.
Therefore, the selection of respondent No.5 automatically falls to the ground.
The impugned orders of the High Court maintaining the order of the Tribunal are
set aside. The appellant shall be reinstated into service within one month from
today with continuity of service.
he will not be entitled to any pay for the period he remained out of service.
The appeals are accordingly allowed.
Mohammed Quadri] ............................................J.
March 20, 2002.