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2017 DIGILAW 1828 (JHR)

Union of India v. Dibeshwar Mahto

2017-10-31

APARESH KUMAR SINGH, B.B.MANGALMURTI

body2017
ORDER : 1. Heard learned counsel for the parties. 2. The applicant, who is respondent no. 1 in the present writ petition, had the occasion to approach the learned Central Administrative Tribunal, Circuit Bench, Ranchi in O.A. No. 222/2010(R) seeking quashing of appointment of respondent no. 4/respondent no. 2 herein as Gramin Dak Sevak, Branch Post Master (GDSBPM), Pogra alleging contravention of Gramin Dak Sevak (Conduct and Employment) Rules, 2001. For convenience sake we would address the respondent no. 1 herein as the applicant and the respondent no. 4 in the O.A. as the private respondent henceforth. The applicant also sought a direction for his appointment on the said post at village Pogra as Branch Post Master professing that he fulfilled all requisite qualification for the said post. The appointment process was initiated by advertisement dated 19th December 2008 in which applicant with 25 other candidates participated. Private respondent was found to be the most successful candidate while the applicant was the second in the merit list. Appointment letter was issued on 17th June 2009 in favour of the private respondent. Applicant obtained information through RTI in relation to the recruitment exercise and thereafter assailed the appointment of the private respondent alleging that out of the two mandatory requirements as under, private respondent did not fulfill the second criteria:— (i) Certificate regarding adequate means of livelihood to support himself and his family. (ii) Undertaking regarding providing rent free accommodation for Branch Office and taking up his residence in the jurisdiction of the P.O.; 3. He alleged that one Sridhar Prasad Sahu had given an undertaking to provide one room to the private respondent for operating the post office at Pogra Branch Office. Private respondent was not a permanent resident of the said village Pogra. He was a resident of village Bari, Dhamoul, Nusratpur, Patna. It so happened that immediately after the appointment of private respondent he was attached to Silli S.O. due to heavy pressure of NREGA work on 23.07.2009. Another advertisement was issued for appointment to the post of GDSBPM Sadma Branch Office in connection with Ormanjhi S.O. on 29th December 2008. In that exercise the successful candidate Bipin Kumar Upadhyay failed to submit the necessary undertaking of rent free accommodation for the Branch Office and taking up his residence in the jurisdiction of the P.O. within the stipulated time. Respondent no. In that exercise the successful candidate Bipin Kumar Upadhyay failed to submit the necessary undertaking of rent free accommodation for the Branch Office and taking up his residence in the jurisdiction of the P.O. within the stipulated time. Respondent no. 4/private respondent herein who had also participated in the recruitment exercise and was second in position in the merit list, was offered the appointment to the post of GDS BPM, Sadma BO vide memo dated 19th April 2011. In effect the private respondent initially appointed at Pogra BO assumed charge of Sadma BO after handing over charge of GDSBPM, Pogra BO on 18th May 2011 to Sridhar Sahu. Pogra BO remaining vacant another notification was issued on 5th August 2011 in which the applicant along with 20 other candidates participated. One Hemsagar Mahto who secured highest marks, was then engaged on the post of GDSBPM, Pogra BO vide memo dated 25th November 2011. One relevant event that took place in between was the coming into force of the amended Gramin Dak Sevak (Conduct and Engagement) Rules, 2011 w.e.f. 18th April 2011. The official respondents admitted before the learned CAT that the applicant is a permanent resident of P.O. Pogra, there was a discrepancy in his date of birth as per the school leaving certificate which is 18th February 1977 and not 18th December 1977. Applicant filed petition before the learned Tribunal to remove the confusion relating to his date of birth also. 4. In the background of the narrative above, learned Tribunal came to a categorical finding that the private respondent failed to satisfy the 2nd mandatory criteria for his appointment as a GDSBPM, Pogra i.e. undertaking regarding providing rent free accommodation for Branch Office and taking up his residence in the jurisdiction of the P.O. Learned Tribunal found that private respondent had only submitted an undertaking from Sridhar Sahu that he would provide one room accommodation for the purpose of operation of Post Office, but the certificate did not reflect any provision of residence for fulfilling the vital condition as the private respondent was not the permanent resident of Pogra village. Learned Tribunal also found that the official respondent had transferred the private respondent within 3 days to another place at Silli P.O. where he joined on 23rd July 2009 and finally again appointed at Sadma B.O. on 20.05.2011 where he was working. 5. Learned Tribunal also found that the official respondent had transferred the private respondent within 3 days to another place at Silli P.O. where he joined on 23rd July 2009 and finally again appointed at Sadma B.O. on 20.05.2011 where he was working. 5. In this background the action of the respondents in ignoring the claim of the applicant in preference to that of the private respondent was found to be suffering from errors in compliance of statutory requirement. The learned Tribunal also found the official respondent quite accommodative towards the private respondent Indranath Sharma. In this background the learned Tribunal modified the relief and passed the following order:— “10. In view of the above, the appointment order dated 17.06.2009 issued to respondent no. 4 (respondent no. 4) is not valid and is hereby quashed and set aside. The applicant being second in position was entitled to be considered for appointment as has been done in the case of Indranath Sharma while appointing him against the post of GDSBPM at Sadma BO on 20.05.2011. However, as the said post has already been filled up by subsequent notification in the year 2011 when the case was pending before the Tribunal, respondents are directed to consider the case of applicant for appointment in an equivalent post in any other Post Office as per the above observation and pass a reasoned and speaking order within a period of four months from the date of communication of this order. Accordingly, the OA is disposed of.” 6. Private respondent, despite quashing of his appointment order dated 17th June 2009, was admittedly working at Sadma BO consequent to his appointment under the 2nd advertisement. Since the post at Pogra BO had been filled up in the year 2011 when the case was pending in the learned Tribunal, respondent was directed to consider the case of the applicant for appointment in an equivalent post in any other Post Office by passing a reasoned and speaking order within a period of four months. 7. It is apparent from the supplementary counter affidavit filed by the applicant/respondent no. 1 and undisputed by the learned counsel for the petitioner herein that a reasoned order has been passed on 10th February 2017 by the Senior Superintendent of Post Offices, Ranchi Division in compliance of the direction passed by the learned CAT in the instant OA. 7. It is apparent from the supplementary counter affidavit filed by the applicant/respondent no. 1 and undisputed by the learned counsel for the petitioner herein that a reasoned order has been passed on 10th February 2017 by the Senior Superintendent of Post Offices, Ranchi Division in compliance of the direction passed by the learned CAT in the instant OA. By the reasoned order the applicant has been selected provisionally for engagement to the post of GDSBPM, Mahugaon BO in account with Govindpur SO under Doranda HO subject to the relevant rules/regulations and conditions laid down in GDS (Conduct & Engagement) Rules, 2011. The applicant was required to submit a self-written undertaking regarding taking up of his residence in the village of the said BO and declaration regarding adequate means of his livelihood within 15 days of receipt of this memo. It was further observed that on receipt of all the documents and verification of all the relevant certificates, engagement letter will be issued separately and joining to the said post will be made accordingly. It was also stipulated that if he fails to turn up/fulfill the requisite conditions within the stipulated period, his selection will be cancelled without issuing any notice. This order was also made subject to the final outcome of the present writ petition. 8. Learned counsel for the petitioner informs that in view of the interim order passed on 22nd March 2017 by this Court in the present writ petition, the respondents have put in abeyance the direction contained in the reasoned order dated 10th February 2017. Learned counsel for the petitioner has assailed the impugned order of learned CAT on the ground that the learned Tribunal has failed to take into account that the post to which the applicant sought appointment under Pogra BO had already been occupied in the subsequent selection exercise by one Hemsagar Mahto in which the applicant also had participated unsuccessfully after the private respondent Indranath Sharma was transferred from Pogra BO to Sadma BO. Learned counsel has however not been able to dislodge the finding recorded by the learned Tribunal relating to the ineligibility of the private respondent Indranath Sharma to be appointed to the post of GDSBPM, Pogra on failure to fulfill the second mandatory requirement of rent free accommodation for the BO and residence at the said village Pogra. Learned counsel has however not been able to dislodge the finding recorded by the learned Tribunal relating to the ineligibility of the private respondent Indranath Sharma to be appointed to the post of GDSBPM, Pogra on failure to fulfill the second mandatory requirement of rent free accommodation for the BO and residence at the said village Pogra. It is also undisputed that the private respondent was not a permanent resident of village Pogra which propelled the learned Tribunal to hold in favour of the applicant. Learned counsel has further added that in the recruitment exercise consequent to the advertisement dated 19th December 2008 this applicant was definitely second in merit below the private respondent Indranath Sharma who at that point of time was found to have fulfilled both the eligibility criteria. This submission however does not appeal to this Court as the private respondent was found ineligible in respect of the second mandatory criteria by the learned Tribunal for being appointed as GDS BPM Pogra BO. If the private respondent's candidature was rendered ineligible, the second person in the merit list deserved consideration for appointment like the official respondents have done in the case of private respondent himself when one Bipin Kumar Upadhyay who was also a candidate for appointment at Sadma BO, failed to submit the undertaking within the stipulated time leading to the appointment of private respondent at Sadma BO. The learned Tribunal, conscious of the developments that have taken place during pendency of the original application which was preferred in the year 2010 itself, much before 2nd and subsequent recruitment process to the post of GDS BPM Pogra BO was issued on 5th August 2011 moulded the relief’s in the manner indicated herein above. 9. In these circumstances, the grounds urged by the petitioner to assail the impugned order do not appear to be legally tenable. The petitioner Union of India also seems to have carried out the direction by passing a reasoned order in February 2017 granting provisional appointment to the applicant. In these background facts and circumstances and for the reasons discussed herein above, we do not find any sustainable ground to interfere in the impugned order. Accordingly, the writ petition is dismissed. Pending I.A. stands closed.