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2006 DIGILAW 338 (ORI)

Ramesh Chandra Nanda v. Registrar

2006-04-26

I.M.QUDDUSI, PRADIP MOHANTY

body2006
JUDGMENT I. M. QUDDUSI, J. : This writ petition has been filed against the judgment and order dated 20.1.1998 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.177 of the 1992 dismissing the O.A. which was filed by the petitioner. 2. The brief facts of the case are that the name of the petitioner was forwarded by the Employment Exchange for the post of Extra Departmental Branch Post Master (in short EDBPM) Pandri¬sila in the district of Sundargarh. Thereafter, the Senior Super¬intendent of Post Offices, Sundargarh (opposite party No.3) sent a letter dated 26.11.1991 to the petitioner by which he was required to produce some certificates with regard to his educa¬tional qualification with the mark sheet etc. Since the petition¬er possessed Graduation degree, he submitted the copy of the said degree certificate along with the mark sheet. At the time when the selection was held he was working as a substitute in the same post for which the selection was held in the leave vacancy as one Chintamani Nanda who was posted there as Branch Post Master had been sanctioned leave with effect from 18.3.1991. In the mean¬time, Sri Nanda was promoted and consequently the petitioner con¬tinued till a regular selection for the post was held. 3. The petitioner was, however, not selected. Opposite party No.4, namely, Radhakanta Satpathy was selected on the basis of the percentage of marks obtained by him in High School Certif¬icate. The petitioner did not submit his mark sheet of the High School Certificate. 4. Feeling aggrieved, the petitioner filed the above men¬tioned O.A. before the Tribunal which was dismissed vide impugned order. 5. Learned counsel for the petitioner has submitted before us that the selection in question was held in the year 1991 and at that time the qualification for the post of EDBPM was non-matriculate and for the first time the qualification for that post was changed in the year 1994 with effect from 1.1.1994 and, therefore, the same was not applicable in a selection held prior to that date.” 6. In the counter affidavit also filed on behalf of oppo¬site parties 2 and 3 it has been admitted that at the relevant time the qualification prescribed for the post of EDBPM was Class-VIII Standard pass and only preferential qualification was shown as Matriculation was to be preferred. In the counter affidavit also filed on behalf of oppo¬site parties 2 and 3 it has been admitted that at the relevant time the qualification prescribed for the post of EDBPM was Class-VIII Standard pass and only preferential qualification was shown as Matriculation was to be preferred. It is submitted by the learned counsel for the petitioner that it cannot be said that the minimum prescribed qualification for the post of EDBPM was Matriculation and hence the percentage of marks obtained in High School Examination was not necessary to be taken into account for the purpose of selection for the post in question. 7. Learned counsel for the petitioner in course of hearing urged that in the letter dated 26.11.1991 by which the petitioner was required to furnish certificates it was not mentioned that he had to submit the mark sheet of the High School Examination only. Therefore, it meant that certificates regarding his educa¬tional qualification with the mark sheets were required to be furnished. As the petitioner was having a Graduation Degree, he submitted that certificate along with the mark sheet. Since there was no rule to make selection on the basis of percentage of marks secured in High School Examination there was no relevancy also to submit mark sheet of High School Examination. 8. In view of the above mentioned facts and circumstances, were are of the opinion that the Tribunal has committed manifest error of law in dismissing the O.A. of the petitioner on the ground that he did not furnish the mark sheet of High School Examination and opposite party No.4 was selected on the basis of the marks obtained in the High School Examination. It is submit¬ted by learned counsel for opposite party No.4 that the selection in question was held in the year 1991 when the minimum education¬al qualification of the candidates was class VIII Standard. However, since 1.1.1994 such eligibility qualification has been changed to Matriculation. 9. In the case of Bibhudutta Mohanty v. Union of India and others, AIR 2002 SC 1503 , the Hon’ble apex Court has held that where any rule or guideline provides preference in respect of some higher qualification, it only means that all other require¬ments being equal a person possessing higher educational qualifi¬cation will be preferred. It cannot, however, be considered as the sole criterion for preference in selection and appointment. 10. It cannot, however, be considered as the sole criterion for preference in selection and appointment. 10. In view of the above-mentioned facts and circumstances of the cases, this Court has come to the conclusion that opposite party No.3 has wrongly interpreted the provisions of law which was existing in the year 1991 when the selection in question was held. They have wrongly decided to make selection on the basis of the percentage of marks obtained in the Matriculation examination of the candidates when the minimum prescribed qualification was Class VIII standard. We have also perused the letter dated 26.11.1991 which was sent to the petitioner in which he was re¬quired to submit he educational qualification certificate with mark sheet it was no where mentioned that he had to submit all testimonials and as the petitioner was having a Graduate degree he had a sent a copy of the degree certificate and the mark sheet obtained in the B.A. examination. Therefore, rejection of the candidature of the petitioner on the ground that he did not submit the mark sheet of High School Examination was improper. But since at this stage when the opposite party No.4 is continu¬ously working in the post in question since the date of his selection, i.e., 1997 it would not be proper for this Court at this stage to disturb his appointment more so when there is already a policy of the government that efforts should be made to give alternative employment to ED Agents who are appointed provi¬sionally and subsequently discharged from service due to adminis¬tration reasons and their names should be included in the waiting list in the ED agents who discharged from service. The petitioner is out of job since 1997. He has worked as substitute with effect from 18.3.1991 to 27.3.1997. Therefore, the petitioner is enti¬tled to get protection of the aforesaid Government policy which has been laid down vide circular of the Ministry of Communica¬tions in the Department of Posts, Government of India No.19-34/99-ED & TRG, dated 30.12.1999 by which the earlier two circulars dated 23.2.1979 and 18.5.1979 were clarified as under : “efforts should be made to give alternative employment to ED Agents who are appointed provisionally and subsequently dis¬charged from service due to administrative reasons, if at the time of discharge they had put in not less than three years continuous approved service. In such cases their names should be included in the waiting list of ED Agents discharged from service prescribed in DG P&T letter No.43-4/77-PEN, dated 23.2.1979.” In view of the above, the impugned judgment and order dated 20.1.1998 passed by the Central Administrative Tribunal, Bhuba¬neswar in O.A. No.177 of 1992 is quashed. Needless to say that the petitioner would be entitled to get his salary for the period he actually worked as EDBPM in Pandrisila Branch Post Office. The writ petition is allowed in part, instead of quashing the selection in question and consequently appointment of oppo¬site party No.4, we direct that the work done by the petitioner as a substitute till the availability of regularly selected person as Branch Post Master shall be treated as provisional appointment and his name shall be included in the waiting list of ED Agents and shall be accommodated against some other vacancy in EDBPM or Mail Carrier, in case, he moves an application in that regard. PRADIP MOHANTY, J. I agree. Petition allowed in part.