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Allahabad High Court · body

2007 DIGILAW 1072 (ALL)

UNION OF INDIA v. RAJENDRA PRASAD PATHAK

2007-04-23

ANJANI KUMAR, SUDHIR AGARWAL

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( 1 ) HEARD Sri Satish Chaturvedi, learned counsel for the petitioner and Sri V. K. Srivastava, learned counsel for the contesting respondents. ( 2 ) THE petitioner Union of India and others aggrieved by the order dated 3. 5. 2002 passed by the Central Administrative Tribunal, Allahabad (hereinafter referred to as the "tribunal") allowing Original Application No. 579 of 1996 have come up in this writ petition under Article 226 of the Constitution of India. ( 3 ) THE facts in brief are that the post of Extra Departmental Agent (hereinafter referred to as eda) in Post Office Bela, District Varanasi fell vacant due to retirement of one Sri Krishna Singh and the same was notified vide Assistant Superintendent of Post Offices, (Town), Varanasis letter dated 1. 9. 1994 to the employment exchange. Pursuant thereto the employment exchange sponsored names of five candidates including the respondent no. 1. After scrutiny only two candidates were found eligible for the said selection. However, as per the EDA (Conduct and Service) Rules, at least three candidates required to be considered for the post of EDA and therefore, the Assistant Superintendent, Post Offices, (Town), Varanasi decided to advertise vacancy for getting some more candidates. A general advertisement was published in 1995 fixing 10. 10. 1995 as the last date. After considering various applications received, the respondent no. 1 was selected and appointed on the post of EDA on 10. 11. 1995. One candidate Sri Paras Nath Yadav who had applied pursuant to the general advertisement complained about certain irregularities committed in the selection which were inquired into and it was found that one candidate Sri Gyan Chand Yadav who was also eligible but his candidature was wrongly rejected and he was not considered and similarly there were some other irregularities also. Accordingly, a decision was taken to cancel the appointment of respondent no. 1 and order was issued on 3. 4. 1996 to the said effect. Pursuant whereto, the Assistant Superintendent Post Offices, (Town), Varanasi terminated the respondent no. 1. Aggrieved, he filed Original Application No. 579 of 1996 which has been allowed by the Tribunal on the ground that before cancellation of his appointment no opportunity was afforded to the respondent no. 1. 4. 1996 to the said effect. Pursuant whereto, the Assistant Superintendent Post Offices, (Town), Varanasi terminated the respondent no. 1. Aggrieved, he filed Original Application No. 579 of 1996 which has been allowed by the Tribunal on the ground that before cancellation of his appointment no opportunity was afforded to the respondent no. 1. ( 4 ) LEARNED counsel for the appellant contended that if the appointment of the petitioner was cancelled in violation of the principle of natural justice the Tribunal ought to have set aside the order of termination with the liberty to the appellant to pass a fresh order in accordance with law but it has erred in law by proceeding further, and, though it has observed that the candidature of Sri Gyan Chand Yadav was wrongly rejected, yet it has made assessment of comparative merit of the respondent no. 1 as well as Sri Gyan Chand Yadav itself and held that the respondent no. 1 was more qualified though neither the Tribunal possess such jurisdiction to sit in appeal and make assessment of the merit of the candidates on its own which is in the domain of the competent authority nor Sri Gyan Chand Yadav was a party in the said Original Application and therefore a finding could not have been recorded against him in his absence. Learned counsel for the respondent no. 1 however, supported the judgment of the Tribunal for the reasons stated therein. ( 5 ) WE have heard learned counsel for the parties and perused the record. It is not disputed by the petitioners that after appointment of the respondent no. 1, a right has accrued in his favour. Admittedly he had not obtained appointment by any fraud or misrepresentation on his part. Therefore, we do not find any error in the judgment called in question in so far as the Tribunal has held that the services of the respondent no. 1 could not have been terminated without affording an opportunity and without issuing show cause notice. ( 6 ) HOWEVER, we are unable to agree with the Tribunal in proceeding further by making assessment of merit of respondent no. 1 qua Sri Gyan Chand Yadav whose candidature admittedly was not considered by the competent authority and was rejected wrongly and it was not the issue before it. ( 6 ) HOWEVER, we are unable to agree with the Tribunal in proceeding further by making assessment of merit of respondent no. 1 qua Sri Gyan Chand Yadav whose candidature admittedly was not considered by the competent authority and was rejected wrongly and it was not the issue before it. the Tribunal itself has observed that the candidature of Sri Gyan Chand Yadav was wrongly rejected and in these circumstances the Tribunal ought to have left it open to the department to consider the matter afresh in accordance with law instead of making assessment of merit on its own and recording a finding which is in the domain of the competent authority and not of the Tribunal. ( 7 ) IN the result the writ petition is allowed in part. The order of the Tribunal in so far as it declares the respondent no. 1 as the most qualified candidate is quashed. We provide that it would be open to the petitioners to proceed further in the matter in accordance with law without being prejudiced by any observation made by the Tribunal with regard to respective merits of various candidates and it would be open to pass a fresh order independently on the basis of the material available on record after affording an opportunity to the respondent no. 1. There shall be no order as to costs. .