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2002 DIGILAW 1355 (AP)

B. Chandra Mouli v. K. Jayaprakash

2002-11-22

BILAL NAZKI, D.S.R.VERMA

body2002
D. S. R. VARMA, J. ( 1 ) AGGRIEVED by the judgment of the central Administrative Tribunal, hyderabad (for short "the Tribunal"), the unsuccessful 4th respondent in O. A. No. 763 of 1995, dated 6-3-1998, filed the present writ petition. ( 2 ) THE 1st respondent herein is the applicant before the Tribunal. The O. A, was filed challenging the selection of the petitioner herein as Branch Post Master (BPM ). ( 3 ) THE facts of the case, in brief, are that the post of Branch Post Master at chinnakodepak branch post office had fallen vacant on 18-4-1995. Since the employment Exchange did not respond, the appointing authority has issued a open notification on 8-3-1995. In total 7 applications have been received out of which 4 applications were found in order. The applicant before the Tribunal as well as the petitioner herein were matriculates. The minimum qualification required for the said post is pass in 8th Standard. Undisputedly, the applicant had secured more number of marks in Intermediate. However, the case of the applicant was not considered and the writ petitioner was selected on the ground that he is a candidate belonging to scheduled Caste, which was challenged by the applicant before the Tribunal. The tribunal having agreed with the contentions of the applicant allowed the O. A. , set aside the selection and appointment of the writ petitioner as ED. BPM and further directed the official respondents to finalize the selection of the candidate from among the persons who responded to the notification. However, the writ petitioner was allowed to continue in the said post as a provisional candidate. Hence, the writ petition. ( 4 ) THE contention of the learned counsel appearing for the writ petitioner is that both the writ petitioner as well as the applicant before the Tribunal were found to be among 4 eligible candidates and since the competition was mainly between two contesting parties, though the writ petitioner had secured less number of marks in intermediate he was given preference over the applicant before the Tribunal on the ground that he belongs to Scheduled Caste community and there was no proper representation to the said community for the posts of BPMs in the jurisdiction of the appointing authority. ( 5 ) IT is contended on behalf of the applicant that in the notification it was not indicated that the post was reserved for scheduled Caste community or a candidate belonging to Scheduled Caste community would be preferred. It is also contended by him that in the absence of any such explicit indication in the notification, the case of the applicant ought to have been considered for selection inasmuch he secured higher marks in Intermediate than the writ petitioner. ( 6 ) THE Tribunal having considered the contentions of both parties and also the instructions of DG and PT issued by the department in letter No. 43-246/77-Pen, dated 8-3-1978, ultimately held that the selection of the writ petitioner was bad. ( 7 ) THE Tribunal came to the said conclusion, as could be seen from the impugned judgment, mainly on 2 grounds; firstly; that in the notification, dated 8-3-1995, there was no mention that a candidate belonging to Scheduled Caste category would be preferred; and secondly; even as per the instructions through letter, dated 8-3-1978, the writ petitioner is not entitled for selection. ( 8 ) FURTHER, it is to be noted that the tribunal having recorded that the stand of the official respondents that the case of the writ petitioner was considered since a short fall was found in representation of the candidates belonging to Scheduled Caste category in postal division, the writ petitioner having been found as belonging to Scheduled Caste community, was selected, no discussion was made nor any finding was given. Since the instructions of dg and PT in letter No. 43-246/77-Pen, dated 8-3-1978, was also referred by the tribunal, we feel it necessary to extract the same once again for ready reference and also keeping in view the observations that are going to be made by us in this order. ( 9 ) THE relevant portions of the said instructions are as follows:"it is hereby clarified that candidates belonging to the Scheduled Caste/ scheduled Tribes with the minimum educational qualifications prescribed in this Office Letter No. 5-9/72-ED Cell, dated 18-8-1973, viz. ( 9 ) THE relevant portions of the said instructions are as follows:"it is hereby clarified that candidates belonging to the Scheduled Caste/ scheduled Tribes with the minimum educational qualifications prescribed in this Office Letter No. 5-9/72-ED Cell, dated 18-8-1973, viz. , VIII Standard for edbpms, VI Standard for EDDAs and edsvs and working knowledge of the regional language and simple arithmetic for other EDAs (and working knowledge of English for Ed messengers) should be given preference over the candidates belonging to other communities, even if the latter are educationally better qualified, provided that the candidates belonging to Scheduled Caste/ scheduled Tribes are otherwise eligible for the post. " (emphasis supplied ). ( 10 ) THE observations of the Tribunal with reference to the above said instructions is also necessary to be noted, which is as under:"as a matter of fact, the DG and PT letter, dated 8-3-1978, clearly states that all eligible candidates including non- sc/st candidates, if they have equal merits, then only preference should be given to SC/st candidates. " ( 11 ) FROM a reading of the above instructions it is obvious that a clarification had been given stating that VIII Standard is the qualification prescribed for appointment of BPM, that preference should be given to the candidates belonging to SC/st communities over other candidates belonging to other communities, even if such other candidates are better qualified. It is specifically made clear that such preference to the candidate belonging to sc/st candidates should be given, if they are otherwise eligible for the post. ( 12 ) IN the instant case, admittedly both the competitors are equally qualified by passing Intermediate. In the counter- affidavit it is stated that the applicant had secured slightly more marks than the writ petitioner meaning thereby that both the candidates are equally qualified and more qualified than required qualification i. e. , 8th standard. In such a case, in normal course, as between 2 candidates belonging to the same community preference shall be given to the candidate who secured more marks. But, it is not in dispute that the abovementioned instructions are in force so far as the selection of BPMs is concerned. The said instructions categorically indicate that the candidate belonging to SC/st community shall be given preference over the candidates belonging to other communities, provided the candidates belong to SC/st community are eligible to hold the post. But, it is not in dispute that the abovementioned instructions are in force so far as the selection of BPMs is concerned. The said instructions categorically indicate that the candidate belonging to SC/st community shall be given preference over the candidates belonging to other communities, provided the candidates belong to SC/st community are eligible to hold the post. It is, therefore, clear that it is enough for the candidate belonging to SC/st community if he is eligible to hold the post to have the selection notwithstanding the higher qualifications of the candidates belonging to other communities. ( 13 ) IT is significant to note that in the case on hand both the candidates do have the same qualification i. e. , Intermediate and in which event if those instructions are to be applied, undoubtedly the writ petitioner alone should be selected. In our view, the selection of writ petitioner was rightly made in view of the instructions referred to supra. ( 14 ) UNFORTUNATELY, the Tribunal observed that as per the instructions, dated 8-3-1978, all eligible candidates including non SC/st candidates, if they have equal merits, then only preference should be given to SC/st candidates. In our view, the Tribunal has totally misread the instructions on record. Having extracted the relevant instructions, the Tribunal unfortunately omitted the last sentences of the abovementioned instructions viz. , "provided that the candidates belonging to Scheduled Caste/ scheduled Tribe are otherwise eligible for the post. " This omission resulted in construing the instructions in an inappropriate manner and further resulted in setting aside the selection of the writ petitioner. This indicates, as already pointed out by us, that if the candidates belonging to 2 different communities acquired different qualifications and even if the SC/st community candidate possesses a lower qualification but eligible, only that candidate should be preferred. Since the object in issuing such instructions by the concerned authorities is quite discernible i. e. , upliftment of the disadvantaged class, we feel that any further elaboration in many words is not required. ( 15 ) THE general principle is that only in case where a post is reserved to a particular community, the notification should necessarily be informative in that regard. However, during the process of selection from the candidates belonging to different communities, various executive instructions and the procedure prescribed thereunder need not explicitly be notified but be followed. ( 15 ) THE general principle is that only in case where a post is reserved to a particular community, the notification should necessarily be informative in that regard. However, during the process of selection from the candidates belonging to different communities, various executive instructions and the procedure prescribed thereunder need not explicitly be notified but be followed. ( 16 ) IT is also on record that there is no sufficient representation from the Scheduled caste/scheduled Tribe candidates in that particular division. Then this factor has to be taken into account along with the instructions after the year 1978. ( 17 ) FURTHER more, it is to be noticed from the counter-affidavit filed by the official respondents that the representation of scheduled Caste community in that division was only 6. 45% as against the prescribed percentage of 15. It was further stated in the counter-affidavit that all the 4 candidates found to be eligible were in fact ineligible inasmuch as they did not fulfill the property/income condition. However, the then appointing authority basing upon the report of SDI (P) came to the conclusion that 4 out of total 7 candidates have in fact fulfilled the property/income condition and accordingly the writ petitioner was selected who belongs to Scheduled Caste community to satisfy the constitutional obligation. Rather surprising to note that in the counter- affidavit in Para-7 it was again stated that since the writ petitioner did not satisfy the income/property condition, a fresh notification is required to be issued to select a suitable candidate as per rules. No special reasons are given to make this kind of statement nor any rules in this regard were pressed into service. We cannot appreciate this conflicting stand of the official respondents when their specific stand is that the eligible candidates are not suitable for not fulfilling the property/income criteria they could have as well taken necessary steps to cancel the whole selection process on that ground itself, but surprisingly for the first time this kind of stand was taken in the counter-affidavit filed before this court. We are of the strong view that the attitude of the official respondents in taking this kind of stands is devoid of any sense of responsibility. We are of the strong view that the attitude of the official respondents in taking this kind of stands is devoid of any sense of responsibility. ( 18 ) IT is also on record that the writ petitioner has been continuing in the office as a provisional appointee as found by the tribunal and also by virtue of the interim directions granted by this court. The appointment was made in the year 1995. ( 19 ) FOR the foregoing reasons, the impugned judgment of the Tribunal in o. A. No. 763 of 1995, dated 6-3-1998, is liable to be set aside and accordingly the same is set aside. ( 20 ) IN the result, the writ petition is allowed. However, in the circumstances of the case there shall be no order as to costs.