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2006 DIGILAW 2463 (MAD)

K. Sulochana v. K. G. Jayasankar & Others

2006-09-19

ELIPE DHARMA RAO, K.SUGUNA

body2006
Judgment :- (Petition under Art.226 of the Constitution of India, praying for a Writ of Certiorari, calling for the records relating to the order dated 13-08-2002 in O.P. No.12 of 2002 on the file of the third respondent and quash the same.) Elipe Dharma Rao, J. Petitioner was selected and appointed to the post of Extra Departmental Branch Post Master (in short EDBPM) at Ananthanadarkudi Post Office by proceedings of the second respondent dated 27-12-2001. Challenging the selection and appointment of the petitioner, the first respondent herein, who had also applied for the said post, but was rejected on the ground of non-fulfilment of income/property criteria, filed an application, O.A. No.12 of 2002, before the Central Administrative Tribunal, Chennai (in short 'the Tribunal'). The Tribunal, by the order dated 13-08-2002, which is impugned in this writ petition, set aside the selection of the petitioner and directed the second respondent to consider the case of the first respondent for appointment as EDBPM. Aggrieved, the petitioner has filed the present writ petition. 2. The Tribunal, after referring to certain decisions of the Supreme Court and more particularly the decision in Indra Sawhney case (Mandal Commission case), a Division Bench judgment of the Kerala High Court and the report filed by the Talwar Committee, was of the view that the question of ownership of property or of independent income cannot be qualifications for appointment as EDBPM and the instruction issued by the Department also did not say that the ownership of property and independent income are the necessary qualifications for appointment. The Tribunal was also of the opinion that if the object for imposing such income/property criteria is to safeguard the interest of the Department, the same could be achieved by taking a fidelity bond or security bond from the selected person. 3. Learned senior counsel for the petitioner submitted that the petitioner was selected and appointed as EDBPM in conformity with the applicable rules. Learned senior counsel argued that even though the first respondent had secured more marks than the petitioner in the SSLC examination, he was not selected since he did not produce along with the application form the income/property certificate in his name. It was argued that the first respondent has not challenged the rules pursuant to which the income certificate and property certificate were insisted but merely challenged the two clauses in the application. It was argued that the first respondent has not challenged the rules pursuant to which the income certificate and property certificate were insisted but merely challenged the two clauses in the application. The judgments relied upon by the Tribunal are not applicable in the facts and circumstances of the present case. The requirement of income/property certificate was to safeguard the interests of the Department. 4. Learned counsel for the first respondent submitted that the only reason for non-selection of the first respondent was that he could not produce income/property certificate. Learned counsel submitted that merit alone should be considered for selection and the question of producing the income/property certificate will arise only after the selection. According to the learned counsel rejection of the application of a meritorious candidate on the ground of non-production of property/income certificate is violative of Articles 14 and 16 of the Constitution of India and such a stipulation is illegal and invalid. If the income/property criteria alone is the guiding factor for selection and appointment, a meritorious person becomes ineligible for want of income/property. Learned counsel further submitted that in the present case there was no selection process at all and that no interview was conducted, but the petitioner was selected and appointed as EDBPM. 5. Learned standing counsel for the second respondent submitted that the selection to the post of EDBPM is depended upon the fulfilment of two conditions, viz. (i) production of property certificate showing property standing in the name of the applicant and (ii) production of income certificate showing independent source of income. In the present case, the first respondent has not produced along with his application the income certificate and property certificate and, therefore, his application was rejected at the very initial stage itself. Learned counsel further submitted that EDBPM has to work in a small village for a limited period of working hours and the work involves handling of public money and, therefore, the requirements relating to income and property were stipulated to safeguard the Department's interest. 6. Heard the learned counsel appearing for the parties and perused the impugned order passed by the Tribunal. The points that arise for consideration are: 1.Whether the Tribunal was correct in holding that the income/property criteria prescribed for selection and appointment to the post of EDBPM is illegal? 6. Heard the learned counsel appearing for the parties and perused the impugned order passed by the Tribunal. The points that arise for consideration are: 1.Whether the Tribunal was correct in holding that the income/property criteria prescribed for selection and appointment to the post of EDBPM is illegal? 2.Whether the Tribunal was correct in setting aside the selection and appointment of the petitioner and further directing the second respondent to consider the case of the first respondent for appointment to the post of EDBPM? 7. In support of his contention, learned senior counsel for the writ petitioner relied on the decision of the Supreme Court in Union of India v. Chandrasekharan (1998[1] Supreme 457), wherein it was held that when the first respondent has accepted the terms and conditions with regard to the production of securing marks in the SSLC examination and production of income certificate who participated in the selection and has failed to succeed in the selection, cannot turn around and say that the selection process is bad. The facts of the case are that respondents 1 and 2 therein were the contestants along with the respondents 3 to 11 therein and several others for the promotional post of Assistant Purchase Officer from the post of Purchase Assistant-B. The promotion was based on a written test followed by an interview and assessment of the confidential reports as prescribed in the Office Memorandum dated 9-7-1987. The marks prescribed for written test, interview and confidential report were 50, 30 and 20 respectively. It was also prescribed that to qualify for promotion, one should get minimum of 50% prescribed for each head and also 60% in the aggregate. The grievance of the repsondents 1 and 2, who did not find their names in the select list, was that on account of unduly disproportionate marks allotted to interview and confidential report, that enabled the Departmental Promotion Committee to manipulate the results which denied the reasonable expectation of candidates who secured maximum marks in the written test. When the select list was quashed by the Tribunal on that ground, an appeal was filed before the Supreme Court and the Supreme Court held as follows: "In absence of any mala fides pleaded and established, importance given to interview could not be termed as arbitrary or violative of Articles 14 or 16 of the Constitution. When the select list was quashed by the Tribunal on that ground, an appeal was filed before the Supreme Court and the Supreme Court held as follows: "In absence of any mala fides pleaded and established, importance given to interview could not be termed as arbitrary or violative of Articles 14 or 16 of the Constitution. The Tribunal went wrong in applying the ratio laid down in Ashok Kumar Yadav's case and in upsetting selection list." In the present case, even though the first respondent has secured more marks than the petitioner, but he failed to produce the income/property certificate which is contemplated as one of the conditions in the advertisement, applying the ratio laid down by the Supreme Court in the above said decision to the facts and circumstances of the case, the Tribunal should not have interfered with the selection of the petitioner. 8. On the other hand, learned counsel appearing for the first respondent submitted that when the first respondent has secured more marks than the petitioner in the SSLC examination, on the ground of non-production of income/property certificate his candidature should not have been rejected. He further submitted that the production of income/property certificate is not an essential qualification. In support of his contention, learned counsel relied on the unreported judgment of a Division Bench of this Court in W.P. No.16673 of 1999 (Order dated 13-2-2002 – S. Jaya v. The Central Administrative Tribunal, Chennai and others). This is a case where the Tribunal has not examined the facts of the case as to whether the applicant had complied with those requirements regarding the possession of property and adequate means of livelihood and also as to whether he had fulfilled those requirements at the time the interview was held on 9-7-1997. The Division Bench therefore remanded the matter to the Tribunal after setting aside its order for examining the other aspects and directing the Tribunal to proceed on the basis that the requirement regarding the possession of property and adequate means of livelihood are qualifications which a candidate is required to possess as on the date of the interview if not as on the date fixed for filing the applications. 9. No principle of law has been laid down in the above judgment. Therefore, this decision is of no assistance to the case of the first respondent. 10. 9. No principle of law has been laid down in the above judgment. Therefore, this decision is of no assistance to the case of the first respondent. 10. In another unreported judgment of the Divsion Bench of this Court in W.P. No.20886 of 2003 (Order dated 20-10-2003 – K. Babu v. Union of India and others), which was relied on by the learned counsel for the first respondent, wherein it was held that the Tribunal has rightly held that the selection of a person who had secured less mark was not in accordance with the Rules and therefore there was no reason to interfere with the order of the Tribunal. This decision is also not helpful to the first respondent has not produced the income/property certificate within the time prescribed. In the said decision there was no dispute about the fact that despite the alleged non-enclosure of certain documents with the application, the applicant before the Tribunal had been called for the interview and it was also the finding of the Tribunal that the writ petitioner had not furnished the documents also within the time prescribed. 11. In DIRECTOR GENERAL OF POST OFFICES v. CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH (2002 [1] KLT 554), it was held that the stipulation laid down by the Director General of Post Offices that preference would be given to those who have landed property or immovable assets and that their adequate means of livelihood is derived from those assets is irrational, illegal and violative of Articles 14, 16 and 21 of the Constitution of India. This judgment was delivered 6-12-2001, but reported later on. Therefore, the authority who selected the petitioner cannot be said to be aware of this decision. Therefore, since the judgment is prospective in operation, we cannot hold that since the second respondent has selected the petitioner as he has produced the income/property certificate and when the first respondent has failed to submit the same along with his application, the selection of the petitioner is bad. 12. Therefore, since the judgment is prospective in operation, we cannot hold that since the second respondent has selected the petitioner as he has produced the income/property certificate and when the first respondent has failed to submit the same along with his application, the selection of the petitioner is bad. 12. In reply to the decision relied on by the learned senior counsel for the petitioner, learned counsel for the first respondent relied on the judgment of the Supreme Court in RAJ KUMAR AND OTHERS v. SHAKTI RAJ AND OTHERS (1997 [9] SCC 527) wherein, in paragraph 16, it is held that an unsuccessful candidate has no locus standi to impugn the legality of the constitution of Selection Board or method of selection and where the procedure of selection and the exercise of power to exclude the posts from the purview of the SSSB suffered from glaring illegalities, the candidate appearing for selection and remaining unsuccessful is not barred from questioning the selection. Acquiescence/Estoppel not applicable in such a case. Learned counsel therefore submitted that it is not correct to submit that the first respondent has no right to assail the correctness of the selection of the petitioner even when he has participated in the selection process and after knowing the terms and conditions of the selection. 13. In H. LAKSHMANA AND OTHERS v. THE SUPERINTENDENT OF POST OFFICES, BELLARY AND OTHERS (2003 [1] ALT 277), it was held that in the matter of appointment/selection to the post of EDBPM possessing of adequate means of livelihood in terms of Circular dated 6-12-1993 of the department is neither an absolute condition nor a preferential condition requiring to be considered for the abovesaid post. 14. Learned counsel finally relied on the decision of the Supreme Court in SUMAN VERMA v. UNION OF INDIA (2004 AIR SCW 5490) with regard to the setting aside the selection as legal as it was questioned immediately after the selection of the first respondent. In this case, though the appointment was set aside after the gap of eight years, but the Tribunal has given a direction to accommodate the candidate whose selection was set aside if possible. The said order of the Tribunal was confirmed by the High Court and the Supreme Court has refused to interfere with the same. 15. In this case, though the appointment was set aside after the gap of eight years, but the Tribunal has given a direction to accommodate the candidate whose selection was set aside if possible. The said order of the Tribunal was confirmed by the High Court and the Supreme Court has refused to interfere with the same. 15. Considering the authorities relied on by the learned counsel appearing on both sides to the facts and circumstances of the case, it is seen that in pursuance of the notification issued by the second respondent, the first respondent's name was sponsored by the employment exchange. The second respondent intimated the first respondent by his letter dated 23-11-2001 to apply to the said post with all relevant certificates and documents on or before 10-12-2001. He has applied to the said post by a registered post along with all the certificates as required by the second respondent including the property certificate on 4-12-2001. It was acknowledged on 6-12-2001 by the second respondent. The first respondent has obtained 362 marks out of 500 in the SSLC whereas the writ petition has secured 298 out of 500 marks. The second respondent has not conducted any interview, but proceeded to select the petitioner to the said post. Further, according to the learned counsel for the first respondent the rule requiring from all the candidates to produce the income and property certificate amounts to violation of Article 14 of the Constitution of India as held by the Kerala High Court. The only ground on which the first respondent attacked the selection of the writ petitioner is that he has secured more marks in the SSLC examination than the writ petitioner and though the last date for submission of the application with the required documents was 10-12-2001, he has submitted the same. Therefore, the second respondent should have selected the first respondent. 16. The second respondent has submitted that the first respondent's claim was based on the marks obtained in the SSLC examination, but he has failed to fulfil the second condition of producing the income/property certificate. The first respondent did not furnish all the certificate such as income certificate of own of the first respondent as well as the property certificate which are essential for the said post. The first respondent did not furnish all the certificate such as income certificate of own of the first respondent as well as the property certificate which are essential for the said post. The post concerned is a Branch Post Master and the incumbent has to deal with several agents who are collecting deposits on behalf of the post office. Therefore, he should have sufficient means for living as well as properties. Since the first respondent failed to fulfil the second condition relating to the production of income/property certificate, his candidature was rejected. 17. When once the first respondent has failed to fulfil the second condition relating to the production of income/property certificate, considering the facts and circumstances of the case, so long as the essential qualifications relating to the income/property are there on the statute, the applicants who are seeking consideration for selection and appointment to the post as per the notification have to satisfy those terms and conditions though it is held that the possession of property and production of income/property certificate is arbitrary and illegal. Non-production of income/property certificate by the first respondent is in violation of the selection rules. As seen from the above authorities relied on by the learned counsel for the first respondent that it is not totally held that the fulfilment of the requirement of production of income/property certificate is not necessary. It was held that if the said certificate was not produced along with the application, but the same was produced at the time of interview, the rejection of the candidature on the ground that it was not produced along with the application was held to be bad. Therefore, we are unable to accept the contentions raised by the learned counsel for the first respondent and with regard to the setting aside the order of selection of the writ petitioner. 18. In Suman Varma case, cited supra, when the sixth respondent therein was eligible having possessed agricultural land, her case was ignored by the authorities and therefore it was held that the action of illegal and improper. In view of the fact that the sixth respondent was more meritorious since she had obtained more marks than the appellant, the direction of the Tribunal to appoint her cannot be said to be illegal or unlawful. In view of the fact that the sixth respondent was more meritorious since she had obtained more marks than the appellant, the direction of the Tribunal to appoint her cannot be said to be illegal or unlawful. This is a case where the sixth respondent became the owner of the property in October, 1996 and the relevant date for consideration was November 12, 1996 and, therefore, on the date of consideration of her candidature she was possessing immovable property. In the present case, however, it is not the case of the first respondent that he was having independent means of income and has acquired immovable property as on the date of consideration of his candidature. Therefore, the decision in Suman Verma case, cited supra, is not applicable to the facts of this case. Therefore, this judgment cannot be taken in support of the order of the Tribunal in setting aside the selection of the writ petitioner. Considering the facts and circumstances of the case, we are of the considered view that the Tribunal was not correct in holding that the income/property criteria prescribed for selection and appointment to the post of EDBPM is illegal. 19. Considering the facts and circumstances of the case and the decisions relied on by both sides, we are unable to agree with the reasons given by the Tribunal in setting aside the appointment of the writ petitioner and directing the second respondent to consider the case of the first respondent for appointment to the said post. Accordingly, the impugned order dated 13-8-2002 is quashed and the writ petition is allowed. No costs.