Suman Verma Vs. Union of
India & Ors [2004] Insc 573 (24 September 2004)
Arijit Pasayat & C.K.
Thakker (Arising From Special Leave Petition (Civil) No. 8809 of 2004) Thakker,
J.
Leave granted.
The present appeal is filed against the judgment and order dated April 2, 2004 passed by the High Court of Judicature at Patna in C.W.J.C. No.4106 of 2004.
By the said order, the High Court confirmed the order passed by the Central
Administrative Tribunal ("CAT" for short) Patna Bench, Patna on March 9, 2004 in Original Application No.307 of 1997.
The case of the appellant herein is that she passed her Matriculation
Examination from Bihar School Examination Board, Patna in 1983 in Second
Division securing 531 marks out of 900 marks. She passed B.A. with Honours from
Muzaffarpura in 1st Division in 1988. In the year 1996, she got her name
enrolled with the Employment Exchange. She was possessing agricultural land of
10 Kathas having purchased from one Dwarka Prasad by a registered sale deed
dated 1st March, 1995. She was also having a residential house in village
Khajuhathi.
According to the appellant, a post of Extra Departmental Branch Post Master
("EDBPM" for short), Khajuhathi Post Office, Block Manjhi fell vacant
as the EDBPM, Post Office, Khajuhathi got promotion. A notification was,
therefore, issued for filling of the said vacancy and names of eligible
candidates were called from Regional Employment Exchange, Chhapra vide a letter
dated 14th October, 1996. According to the appellant, nine names were sent by
the Employment Exchange. The appellant was found eligible, qualified and most
suitable. Accordingly, the appellant was appointed to the said post by an order
dated December 13, 1996. Since then, she is working as EDBPM, Khajuhathi.
The appellant stated that though respondent No.6 was neither eligible nor
qualified to be appointed as EDBPM, she was aggrieved by the appointment of the
appellant and the action taken by the authorities and approached the Central
Administrative Tribunal (CAT) by filing Original Application challenging the
appointment of the appellant. It was contented by respondent No.6 before the
CAT that though she was eligible and qualified and was more meritorious
inasmuch as she had obtained 584 marks out of 900 marks as against the appellant
who had obtained 531 marks at the Matriculate examination, she was not
appointed. It was also her case that she possessed agricultural land as
required and proof of having possessed such agricultural land was produced by
her. It was, therefore, obligatory for the authorities to consider her case and
she ought to have been preferred as against the appellant.
The CAT after considering the rival contentions of the parties, allowed the
petition holding that the case of the applicant before the CAT (respondent No.6
herein) had been ignored on flimsy grounds keeping aside the merits of the
contesting candidates. Resultantly, the order dated 13th December, 1996 was set aside by the CAT and a direction was issued to appoint respondent No.6
(applicant before the CAT) forthwith. The Tribunal also observed that since
respondent No.6 (appellant herein) was working since several years, on account
of delay in disposal of the Original Application, the authorities were directed
to consider if she could be appointed "in the vicinity if and when such
vacancy arises" provided she is otherwise fit and eligible for such
appointment.
Being aggrieved by the order passed by the CAT, the appellant approached the
High Court of Patna. The High Court, however, confirmed the decision of CAT and
dismissed the petition. Against the said decision, therefore, the appellant has
approached this Court.
We have heard the learned counsel for the parties. Mr.
Goswami, learned senior counsel for the appellant strenuously urged that
respondent No.6 was neither eligible nor qualified to be appointed as EDBPM and
she was, therefore, rightly ignored by the authorities.
Drawing the attention of the court to the notification issued by the
authorities, the counsel submitted that it was absolutely necessary that the
candidate must have possessed sufficient landed property in his/her name and
he/she was required to produce the relevant record in token of having possessed
such property. In the instant case, respondent No.6 did not possess immovable
property and the said fact was duly considered by the authorities in its proper
perspective and a decision was taken that she was not eligible. The CAT ought
not to have interfered with such a decision and should not have issued
direction to the authorities to appoint her. The order, therefore, deserves to
be set aside. It was also argued that a totally irrelevant and extraneous
factor was kept in mind by CAT of marks obtained by two candidates at the
Matriculation Examination. The counsel submitted that the necessary educational
qualification was passing of Matriculation Examination and not marks obtained
in the said examination. Once a candidate is eligible, his case is required to
be considered in accordance with the guidelines and norms fixed by the
Department and there can be no "preference" of one over the other.
The said fact, therefore, should not have weighed with the authority and on
that ground also, the decision is vulnerable. It was contended that a direction
was issued by CAT to "appoint" respondent No.6. No such direction
could have been issued by CAT even if it was satisfied that the action taken by
the authorities was not in consonance with law. The limited direction which
could be issued could be to set aside the decision taken by the authorities and
to consider the matter afresh in accordance with law. Finally, it was submitted
that the appellant was found to be most suitable by the authorities and was
appointed as early as in 1996. About eight years are over and she is working as
EDBPM. If at this stage, the appointment is cancelled, serious prejudice will
be caused to her. It was, therefore, urged that even if this Court is of the
view that the action taken by the authorities could not be termed legal or
lawful, in peculiar facts and circumstances of the case, the appointment of the
appellant may not be cancelled.
Mr. Harish Chandra, learned senior counsel for the Union of India supported
the case of the appellant. It may, however, be stated that the authorities have
not challenged the decision of CAT before the High Court or in this Court.
Mr. Amit Pawan, the learned counsel for respondent No.6, on the other hand,
supported the order passed by the Tribunal and confirmed by the High Court. It
was urged that respondent No.6 was eligible and qualified. She possessed
agricultural property as per the requirement of the Notification. Referring to
the conditions in the Notification issued by the Department of Posts, the
counsel submitted that respondent NO.6 fulfilled all the conditions mentioned
in the Notification. She was the permanent resident of the village. She had
passed her Matriculate Examination and secured more marks than the marks
secured by the appellant herein. She had adequate means of income from
independent source of livelihood and necessary certificate had been produced by
her. It was stated that pursuant to the gift deed dated October 14, 1996, she
became the owner of agricultural land. The last date for submission of the
applications was 12th November, 1996. Respondent No.6 became owner of
agricultural land on October 29, 1996, i.e. before the last date of submission
of application. The mutation entry, however, could be made on November 22,
1996. It is thus clear, submitted the counsel, that respondent No.6 became
owner of immovable property prior to the last date of submission of
application, but the mutation entry could be effected in Revenue Record
subsequently. But from that, it cannot be said that respondent No. 6 did not
possess agricultural land on the last date of submission of application. Entry
in Revenue Record is immaterial so far as the title or ownership of the land is
concerned.
That fact, therefore, could not have been considered by the authorities and
the CAT committed no error of law or of jurisdiction in setting aside the
action of the authorities and directing them to appoint respondent No.6 as she
was more meritorious. It was also submitted that since the relevant education
qualification is Matriculation, marks obtained at the said examination would
indeed be relevant and the Tribunal was wholly justified in placing reliance on
marks obtained at the said examination. The order, therefore, required no
interference.
It was also confirmed by the High Court. Respondent No.6 had approached the
CAT as soon as the action was taken by the department but CAT took time in
final disposal of the matter which should not come in the way of respondent
No.6 in getting appropriate relief. In any case, appropriate observations have
been made by the Tribunal to accommodate the appellant, if it is possible. The
counsel, therefore, submitted that the appeal deserves to be dismissed.
Having heard the learned counsel for the parties and having gone through the
record, we are of the view that the decision rendered by the CAT and confirmed
by the High Court needs no interference.
It is clear from the notification and the conditions laid down therein that
both, appellant as well as respondent No. 6 were qualified. So far as education
qualification is concerned, both have passed Matriculate examination. Clause D
of the notification required a candidate to have passed Matriculate or
equivalent examination. It also stated that no weightage would be given to
higher qualification. It is thus clear that the authorities were to consider
the factum of passing of Matriculation examination. From the record, it is
further clear that whereas the appellant had obtained 531 marks out of 900
marks, respondent No. 6 had obtained 584 marks. Respondent No. 6 was thus more
meritorious so far as marks obtained at the Matriculation examination was
concerned. It may be stated at this stage that it is not even the case of the
Department that respondent No. 6 did not possess requisite educational
qualification.
The consideration weighed with the authority was that the appellant was
having agricultural land in her name, while respondent No. 6 did not possess
agricultural land and thus she was not eligible.
Now, it is the case of respondent No. 6 that she had become owner of the
agricultural land on the basis of the gift-deed dated October 14, 1996, before
the last date of submission of application. Mutation entry could not be
affected before 12th November, 1996 and it was done on 22nd November, 1996.
CAT, in our opinion, rightly held that in the circumstances, it could not be
held that respondent No. 6 did not possess agricultural land on the last date
of submission of application form and it could not be said that she was not
eligible.
Our attention in this connection was invited by learned counsel for both the
parties to a decision in Rekha Chatravarti v. University of Rajasthan (1993)
Supp. 3 SCC 168. In that case, an advertisement/notification was issued
inviting applications for the post of Assistant Professors having requisite
qualifications. Some candidates had no requisite qualification. They, however,
acquired such qualification afterwards. The question before this Court was
whether such candidates could be treated as qualified, eligible and having
acquired necessary qualification at the relevant date. This Court held that the
candidate must be qualified on the last date of making application for the post
advertised or on the date specifically mentioned in the
advertisement/notification. Qualifications acquired by a candidate after such
date cannot be taken as qualification for the post and he cannot be appointed.
One of the guidelines issued by this Court reads;
"B. The candidates selected must be qualified as on the last date for
making applications for the posts in question or on the date to be specifically
mentioned in the advertisement/notification for the purpose. The qualifications
acquired by the candidates after the said date should not be taken into
consideration, as that would be arbitrary and result in discrimination. It must
be remembered that when the advertisement/notification represents that the
candidate must have the qualifications in question, with reference to the last
date for making the applications or with reference to the specific date
mentioned for the purpose, those who do not have such qualifications do not
apply for the posts even though they are likely to acquire such qualifications
and do acquire them after the said date. In the circumstances, many who would
otherwise be entitled to be considered and may even be better than those who
apply, can have a legitimate grievance since they are left out of
consideration." (emphasis supplied) Learned counsel for the appellant
submitted that respondent No.
6 got her name mutated in Revenue Records on November 22, 1996 and that is
the relevant date. Last date of submission of application was 12th November,
1996. The ratio laid down in Rekha Chaturvedi thus applies to the case on hand
and as respondent No. 6 was not eligible, her case could not be considered.
In our considered opinion, however, the learned counsel for respondent No. 6
is right in submitting that respondent No. 6 had become owner of agricultural
land in October, 1996. The relevant date for consideration was November 12,
1996 and before that date, she possessed such property. Rekha Chaturvedi, in
our view, supports respondent No. 6 rather than the appellant. When respondent
No. 6 became the owner of the property in October, 1996 before the last date of
submission of application, she could be said to be possessing agricultural land
and, hence, she was eligible. In our opinion, owning of agricultural property
and getting the name entered in Revenue Record are two different and distinct
things. Mutation entry does not confer right or title to the property. Though
the law is very well settled, in our opinion, the CAT was right in relying upon
the decision of this Court in Sawarni v. Inder Kaur and Others AIR 1996 SC 2823
wherein this Court held that mutation entry neither creates nor extinguishes
title or ownership.
In view of settled legal position, in our judgment, CAT as well as the High
Court were right in holding that though respondent No. 6 was eligible having
possessed agricultural land, her case was ignored by the authorities and hence,
the action was illegal and improper. In view of the fact that respondent No. 6
was more meritorious, since she had obtained more marks than the appellant, the
direction of CAT to appoint her cannot be said to be illegal or unlawful. The
said direction is, therefore, not interfered with. CAT has also referred to
para 2 of the Executive Order dated May 10, 1991, issued by the Director
General of Post, New Delhi, which reads thus;
"The deciding factor for the selection of ED BPMs/ED SPMs should be the
income and property and not the marks, has been examined threadbare but cannot
be agreed to as this will introduce an element of competitiveness in the matter
of possession of property and earning or income for determining the merit of
candidates for appointment as ED Agents. Proof of financial status is not only
subject to manipulation but is also detrimental to merit. When the Constitution
of India guarantees equal opportunity to all for their advancement, the
reasonable course would be offer ED employment to the person who secured
maximum marks in the examination which made him eligible for the appointment,
provided the candidate has the prescribed minimum level of property and income
so that he has adequate means of livelihood apart from the ED Allowance."
Regarding appointment and continuance of the appellant for a period of almost
eight years in service, it may be stated that respondent No. 6 had approached a
competent Tribunal for ventilating her grievance immediately after the issuance
of order in favour of the appellant. It was because of the pendency of the
matter before the Tribunal that respondent No. 6 could not get the case decided
and the matter finally adjudicated. The learned counsel for respondent No. 6
is, therefore, right in submitting that the said fact should not cause
prejudice to respondent No. 6 who had approached the Tribunal in time. To us,
the CAT is right in considering the matter in its entirety and in making
observations that the case of the appellant herein be considered for
appointment as EDBPM in the nearby vicinity if otherwise she is fit.
No doubt relying on Rekha Chaturvedi, the learned counsel for the appellant
submitted that in that case this Court after holding the selection process
unlawful, did not interfere with the action and refused to set aside illegal
appointment on the ground that the case was heard after eight years. In the
case on hand, however, respondent No. 6 had approached the Tribunal
immediately, the Tribunal considered the facts and circumstances of the case
and granted relief to respondent No. 6 and also made suitable observations so
that the present appellant may be accommodated if possible. Moreover that order
was confirmed by the High Court. We, therefore, see no reason to disturb that
direction.
For the foregoing reasons, the appeal deserves to be dismissed and is,
accordingly, dismissed. In the facts and circumstances of the case, however,
there shall be no order as to costs.
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