Research › Search › Judgment

Gauhati High Court · body

2003 DIGILAW 404 (GAU)

Union of India (UOI) v. Rajen Munda

2003-09-02

P.P.NAOLEKAR, S.K.KAR

body2003
JUDGMENT P.P. Naolekar, C.J. 1. This petition by Union of India is directed against the order dated 6.3.2002, passed by the learned Central Administrative Tribunal (in short, CAT) at Guwahati in OANo. 292/2001. The facts of the case, in brief, are as follows : 2. The Department of Posts, on public demand set up an Extra Departmental Branch Office at the village of Mitham Bangali. Employment exchange at Tezpur was asked to forward a list of probable candidates for the post of extra departmental branch post master for that branch office. A list of 3(three) candidates was forwarded by the employment exchange and the applications of 7 (seven) other candidates were received directly from the local advertisement. Thereafter a comparative list of 10 (ten) candidates was prepared and on verification of the candidatures of the applicants one Sri Biplab Sarkar was found to be the best and accordingly the said person was selected as Branch Post Master (BPM) of Mitham Bangali Branch Office on 20.6.2001 and the charge of the said Branch Office was handed over to him on 26.6.2001. Shri Biplab Sarkar was made respondent No. 8 in said OA No. 292/2002 wherein the present respondents challenged the legitimacy of the selection of Biplab Sarkar alleging, inter alia, that the selection was made arbitrarily and in violation of established norms etc. 3. The present respondents, as the petitioners before the learned Tribunal in OA No. 292/2001, contended therein that annexure 'C', i.e., the notice/advertisement No. H2-124 dated 12.3.2001 was issued by the respondent No. 6, namely, the Superintendent of Post Offices, Darrang Division, Tezpur, Assam for filling up the post of Extra Departmental Branch Post Master (ED BPM) for Mitham Bangali Branch Office under the terms and conditions given therein and there was an interview held on 10.6.2001, wherein 10 (ten) candidates participated and the respondents (petitioners therein) were permanent residents of that village and were having landed property in the name of themselves and/or their father. That the respondent No. 8, (of OA No. 292/02) did not fulfill the terms and conditions of Clauses 2 and 3 of the notice dated 12.3.2001 (Annexure-C) to the effect that he was neither permanent resident of that village nor owner of landed property or house in the said village. That the respondent No. 8, (of OA No. 292/02) did not fulfill the terms and conditions of Clauses 2 and 3 of the notice dated 12.3.2001 (Annexure-C) to the effect that he was neither permanent resident of that village nor owner of landed property or house in the said village. That the Post Office was sanctioned due to demand of the local people of the Village and the co-respondents selected respondent No. 8 who is a resident of Panbari village, without application of mind. That the respondent No. 8 was accused in a Criminal Case, and that the Postal Department acted in malice denying the rights of local aspirants and preferred an outsider. That there was a case of violation of natural justice and absence of administrative fair play. That the advertisement, dated 12.3.2001 (Annexure-C) was perverse, bias and not tenable in the eyes of law. The further contentions of petitioner is that Mitham (Mithaam) Bangali Branch Office was opened on 28.2.2001 and was initially functioning at the residential house of Madan Chandra Orang, Extra Departmental Messenger, Dhekiajuli Sub-Office who was officiating as Branch Post Master (BPM) with effect from 2.4.2001. However, the newly appointed Branch Post Master, Sri Biplab Sarkar was facing objections from the local people for shifting the said Office from the existing location. The Tribunal set aside the selection made by the department hence this appeal by the Union of India. 4. It is contended before us by the counsel for the Union of India that the selection of said Sri Biplab Sarkar was made as per rules and in accordance with the terms and conditions of the advertisement but the learned CAT has held that the Department had failed to follow the rules or guidelines for which the entire selection process was bad and illegal. That the learned Tribunal assumed in itself the jurisdiction which was vested upon the department, although there was neither mala fide nor irregularity in selecting the respondent No. 8. Hence, it was submitted that intervention of CAT was not warranted and is liable to be quashed. 5. We have heard both sides. Perused the documents placed before us. 6. It will be pertinent to reproduce Clause Nos. 2 and 3 of Annexure 'C', the non-compliance of which was mainly agitated by the respondents of the present writ petition in the aforesaid OA No. 292/2001 before the learned Tribunal. 5. We have heard both sides. Perused the documents placed before us. 6. It will be pertinent to reproduce Clause Nos. 2 and 3 of Annexure 'C', the non-compliance of which was mainly agitated by the respondents of the present writ petition in the aforesaid OA No. 292/2001 before the learned Tribunal. Part of Annexure 'C' is set out herein below : "2. The candidate must have adequate means of livelihood and must able to offer office space as will serve as a small P.O. with provision for installation of even P.C.O. without any rest. 3. The candidate must be permanent resident of the post vill/post office jurisdiction and likely to have residence in post village, if selected, and must have owned landed property, in his/her name." 7. It is not disputed that Sri Biplab Sarkar had secured 53% marks, topping the list of the candidates in so far academic qualification is concerned. The remarks column of the comparative statement/list indicates that there is no entry against respondent No. 8 therein to show any defect but it contained doubled tick-marks (i.e., O.K.). It will be convenient to reproduce as below the relevant part of the said comparative statement (check-chart according to CAT) -- SI. No Name of candidate Educational qualification Caste Whether belongs to P.O. /Village Landed property if Age as on 1-6-2000 Remarks 1 2 3 4 5 6 7 8 (1) Sri Rajen Munda (Petitioner No. 1) HSLC Marks 40.9% OBC Yes No (document received) 32 Yrs2M. Col. No 10 not replied (1) Landdocument(2) Col. 10 not answered. (2) Sri Tapan Das (Petitioner No. 2) HS Marks 36.5% SC Yes Yes, Sale deed available 29Yrs 4m. Did not answered item 9 correctly ** * * * * * * * * * * * * (5) Sri Biplab Sarkar (responde-nt No. 8) HSLC Marks 53% OC Yes Yes, Sale deed available 21 Yrs 5 m 26 days * * *** *** *** *** * * * * * * (10) Smt Dipali Ornnng (Petitioner No.3) HS Marks 38.5% OBC Yes Yes, (four bighas land in the name of the candidate) In the land certificate the name of the father is different. 26 Yrs, 4 m 26 days 8. The learned counsel appearing for the petitioner submitted that the respondent No. 8 of the OA No. 292/2001 fulfilled all the requirements. 26 Yrs, 4 m 26 days 8. The learned counsel appearing for the petitioner submitted that the respondent No. 8 of the OA No. 292/2001 fulfilled all the requirements. It is mentioned that the candidates must have adequate means of livelihood and must be able to offer office space which will serve as a small Post Office with provision for installation of P.C.O. and he should be a permanent resident of the Post Village/Post Office jurisdiction and he will have to arrange for residence in the post village/post office and must have own landed property in his/her name. It may be noticed that candidate should be in a position to offer office space it need not be of his own and it is upto the authorities to judge the genuineness of the offer so made. There is nothing from the record to show that respondent No. 8 did not fulfilled the requirements of the notice/advertisement dated 12.3.2001 (Annexure-C) mentioned earlier. 9. It is the established law that a person who joined the selection process cannot later on turn hostile to it and challenge the legality and validity of the same selection process unless and until any patent case of mala fide or arbitrary action is shown. The respondents herein neither could show exactly what was the wrong in the selection procedure nor could adduce any evidence/proof to substantiate the objections raised. Their only allegations is that they were deprived from being selected although they were local persons. But fact remains that it was not ascertained before learned CAT that the respondent No. 8 is not a local person, etc. It was only a statement made without anything to substantiate. 10. It appears that the selection of respondent No. 8 (of OA No. 292/ 2001) was set aside by the learned Tribunal with the following concluding observations : "............................ At any rate the post office was situated on the place of the applicant No. 3, whereas the respondent No. 8 only gave a casual indication that he would offer space for office providing the ability to offer office space to serve as accommodation is one of the essential factor for selection. The respondents authority in selecting the respondents No. 8 overlooking the claim of these applicants, more particularly that of applicant No. 3 on the face of record could not be justified ...................." 11. The respondents authority in selecting the respondents No. 8 overlooking the claim of these applicants, more particularly that of applicant No. 3 on the face of record could not be justified ...................." 11. We find, after hearing the parties and on perusal of the observation above quoted that the finding is not tenable in view of the absence of any supporting materials on record. It has not been appropriately discussed in the impugned judgment what was/were claim(s) of the applicants and how anything was over looked. It is written in the comparative chart that all applications were verified by SDI(P), Phekiajuli. The concluding part of the comparative chart contains remarks as follows : "The candidate at Sl. No. 5 fulfilled all the required conditions. Hence he is selected provisionally." Candidate at Sl. No. 5 is Sri Biplab Sarkar (respondent No. 8 of OA-292/2001). The learned Tribunal opined selection was done overlooking claim of the applicant No. 3 in particular being oblivious of the remark recorded against her in Column of 'land property, if any' where it was noted as follows - "In the land certificate the name of father is different", which may smack a case of fraud instead. Thus, it will not be out of place to opine a case of non-application of judicial mind. Here, we find that finding of the learned Tribunal was not appropriate. 12. We have been referred to law given in Madan Lal and Ors. v. State of J&K and Ors. wherein the Apex Court observed as below : ".......... Thus, the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted .................". 13. This being also the legal position par citation above and our observation as discussed in para 9 of this judgment, concluding thereof, we find the impugned order is devoid of any merit and the same is accordingly set aside.