Kumar Singh Vs. Union of India & Ors  Insc 4 (4 January 2005)
Pasayat & S.H. Kapadia
out of S.L.P. (Civil) No. 23970/2003) ARIJIT PASAYAT, J.
calls in question legality of the judgment rendered by a Division Bench of the Patna
High Court, affirming order of the Central Administrative Tribunal, Patna Bench
(in short the 'CAT') holding that the appellant's appointment as "Extra
Departmental Delivery Agent" (in short 'EDDA')/Extra Departmental Mail
Carrier (in short 'EDMC') was not legal.
facts in a nutshell are as follows:
post office was ordered to be opened at village Madhubani under Karnaut sub
post office in Muzaffarpur postal division in the year 1993. A requisition was
sent to the employment exchange calling for the names of qualified candidates
for making appointment to the post of EDDA-cum-EDMC. The minimum qualification
was matriculation and local candidates were to be given preference. Seven names
were forwarded by the employment exchange including the name of appellant and
one Kamlesh Prasad Singh (respondent No. 6 in this appeal). After interview, by
the Sub-divisional Inspector of post offices, appellant was selected. It is to
be noted that preference was to be given to the candidate who had secured
highest marks in the matriculation examination amongst candidates. A letter of
appointment was issued on 25.10.1993. It was clearly indicated in the order
that the appointment is of a contractual nature, liable to be terminated by
notification in writing and the conduct and service is governed by the Post and
Telegraph Extra Department (Conduct and Service) Rules 1964, (in short 'the
Conduct Rules'). The appellant joined the post on 26.4.1994. A petition was
filed before the CAT by aforesaid Kamlesh Prasad Singh taking the stand that he
had secured higher marks than the present appellant. Further he was involved in
a criminal case of kidnapping a college going girl. Initially his bail
application was rejected by the learned CJM, but subsequently bail was granted
by the Sessions Judge.
the present appellant did not appear before the CAT, the official respondents
took the stand that he was allowed to join only after clean report about him
was given by the Officer-in-Charge, Sahebganj Police Station. CAT was of the
view that merely because the officer-in charge had not given adverse report
that was not relevant.
case against the present appellant might not even stand in the criminal court.
But the fact is that he faced a criminal charge and there was strong
possibility of his appointment resulting in criminalization of government
office. It was further held that though candidate with higher marks is a good criteria
for appointment, but that cannot be the sole criteria. The appointment for the
post of EDDA is not prescribed under any statutory rule, but under executive
instructions. When there is a possibility of criminalization of office
administration such candidate should not be appointed. Accordingly appointment
order was set aside and it was held that fresh selection should be made and the
candidates other than the present appellant were to be considered for
appointment. Appellant questioned legality of the CAT's order before the Patna
High Court. By the impugned order, the High Court dismissed the application on
the ground that though the circumstance of his facing a criminal charge was
indicated in the petition and allegations were made, the appellant did not come
forward to deny the statement and the allegation and therefore order of the CAT
did not warrant interference.
counsel for the appellant submitted that the appellant had applied for the post
on 18.8.1993, interview was held on 27.9.1993 and appointment was made on
12.10.1993. A false case was lodged on 15.10.1993. That the case was falsely
lodged has been amply proved by acquittal of the appellant by the trial court.
It was clearly observed in the judgment that the case was falsely hoisted. The
acquittal was not on technical ground, but on the other hand was clean
was made to evidence of certain witnesses who clearly stated that the appellant
had no role to play in the alleged crime. It was further submitted that there
was no material to show that the appellant had any criminal antecedents, or
that he was undesirable person.
counsel for the official respondents submitted that the fact that the appellant
was involved in a criminal charge makes him undesirable. Therefore, this Court
should not interfere while exercising jurisdiction under Article 136 of the
Constitution of India, 1950 (in short 'the Constitution').
find that the conclusions of the CAT as upheld by the High Court revolve round
the appellant facing a criminal trial. At the time of issuing appointment order
the case had not been initiated. Though the case was instituted, the same has
ended in acquittal. It was open to the concerned official respondents to
terminate the contractual appointment. It is to be noted that the appellant was
permitted to join after his release from custody. Though the authorities were
aware of the criminal case against him, they did not put an end to the
contractual appointment. It was only pursuant to the CAT's order on the basis
of a petition filed by an unsuccessful candidate that the appointment was
nullified. Whether the appellant deserved to be continued had not been
independently examined by the authorities. By the time the High Court decided
the matter, the appellant had already been acquitted. The effect of such
acquittal has also not been considered by the High Court. Mere non-appearance
before CAT could not have held to be the determinative factor. The High Court
should have considered as noted above, the effect of the acquittal. It is also
not clear from the records whether the order of the CAT directing fresh
consideration has been carried out or not.
peculiar circumstances we remit the matter to the High Court for a fresh
consideration. At the same time it is open to official respondents to consider
whether the contractual appointment of appellant is to be continued or not in
the background facts as highlighted above. We make it clear we have not
expressed any opinion on the merits of the case.
is disposed of in the aforesaid terms with no order as to costs.