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2001 DIGILAW 270 (AP)

Post Master, Head Post Office, Madanapalli, chittoor Division v. B. Venkatarathnam

2001-03-16

S.B.SINHA, V.V.S.RAO

body2001
SATYA BRATA SINHA, J. ( 1 ) THE question that arises for consideration in this writ petition is as to whether the offer of appointment can be reviewed at the instance of a higher authority. ( 2 ) THE fact of the matter is not in dispute. The respondent herein was appointed as Extra-Departmental Stamp vendor on 10-4-1996, and he reported for duty on the same day. A higher authority i. e. , petitioner No. 2 herein, relying and acting upon some complaint made before him to the effect that the claim of no meritorious candidates was considered, directed petitioner No. 1 herein to issue a show-cause notice to the respondent seeking explanation from him as to why the post should not be renotified. Accordingly, petitioner No. 1 issued show-cause notice dated 14-2-1997 to the respondent herein. The respondent herein submitted his explanation to the said show-cause notice on 23-2-1997. Thereafter, petitioner No. 1 passed orders dated 20-5-1997 removing the respondent herein as Extra-Departmental stamp Vendor. Assailing the said order, respondent herein filed an application OA no. 673 of 1997 before the Tribunal. ( 3 ) IT appears that the subject-matter of the instant OA is covered by Full Bench decision of the Tribunal in OA No. 57 of 1991, (Ambjakshi v. Union of India and others), disposed of on 10-2-1995, wherein having regard to the rules operating in the field it was held:" (I) Rule 16 of the posts and Telegraphs extra-Departmental Agents (Conduct and service) Rules, 1964 does not confer power upon a higher administrative authority to revise the order of appointment purported to have been passed by the lower authority under rule 3. (II) Under the Rules, a higher administrative authority has no power either inherent or otherwise to revise the order of appointment passed by the lower administrative authority or to set aside the same. " ( 4 ) THE Tribunal, following the aforementioned Full Bench judgment of the tribunal held:". . . . . . . . . . . . . THAT the higher administrative authority has no power to review the order of appointment of ED staff passed by the appointment authority or to set aside the same. If any person is aggrieved by that appointment, then such person has to approach the appropriate judicial forum for redressal of his grievance. . . . . . . . . . THAT the higher administrative authority has no power to review the order of appointment of ED staff passed by the appointment authority or to set aside the same. If any person is aggrieved by that appointment, then such person has to approach the appropriate judicial forum for redressal of his grievance. We feel that respondent No. 1 should not have taken cognizance of the complaint received by him regarding the appointment of the applicant as EDSV. The respondent No. 1 should have advised the complainant thereto, to challenge the appointment before the appropriate judicial forum. The aggrieved person is at liberty to approach this Tribunal in regard to the selection of the applicant as ESDV. If the selection proceedings are challenged, before the Tribunal, they will be dealt with according to law. " ( 5 ) SRI L. Narasimha Reddy, learned counsel appearing on behalf of the petitioners inter alia submitted that the appointing authority had the power to rectify its own mistake, and while doing so, the appointing authority does not exercise the power of review. On the other hand, sri Krishna Devan, learned Counsel appearing on behalf of the respondent submitted that the petitioners herein being party-respondents to the dispute in OA No. 57 of 1991 before the Tribunal, and the judgment in the said case having not been challenged in any higher Court, has become final, and therefore, the petitioners herein are bound by it. In any event, he submitted that petitioner No. 1 could not have initiated the impugned proceedings at the instance of petitioner No. 2, who is said to be a higher authority. ( 6 ) THERE cannot be any doubt whatsoever that a statutory authority must exercise the power vested in him by applying his mind, and he cannot act to the dictates of a higher authority (see Commissioner of police, Bombay v. Gordhandas, AIR (39) 1952 SC 16.) ( 7 ) IT further appears that the Tribunal in the aforementioned Full Bench judgment, has clearly arrived at a finding upon interpretation of the extant rules that the higher administrative authority has no power to review the appointing authority s order or set aside the same. In the instant case, the higher authority is seeking to do indirectly which it could not do directly. In the instant case, the higher authority is seeking to do indirectly which it could not do directly. ( 8 ) IF the aforementioned situation, we are of the opinion that the impugned order of the Tribunal is unassailable. However, there Cannot be any doubt whatsoever that if the offer of appointment made is contrary to the proceedings or law or in ignorance of material facts and/or under a bona fide mistake, the same cannot rectified, but for the said purpose, the appropriate authority, must only apply its mind independent without being influenced by the dictates of a higher authority. However, before arriving at a finding of fact that a bona fide mistake has been committed, having regard to the fact that the order proposed to be passed would adversely affect the incumbent, and as a result whereof the incumbent would suffer civil consequences, the principles of natural justice must be complied with (see Bhagawan sukula v. Union of India, AIR 1994 SC 2481 ). ( 9 ) FOR the reasons aforementioned, we find no merit in the application, and it is accordingly dismissed. No costs.