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2025 DIGILAW 546 (SC)

Alok Kumar Jha v. Union of India

2025-02-11

SANDEEP MEHTA, VIKRAM NATH

body2025
ORDER : 1. Leave granted. 2. Heard learned counsel for the parties. 3. The present appeal is directed against the order dated 17.01.2022 passed by Patna High Court in Civil Writ Jurisdiction No. 13602 of 2015 by which the writ petition filed by the appellant was dismissed and the order dated 07.08.2015 of the Central Administrative Tribunal [CAT], Patna was upheld. The Tribunal had allowed the Original Application filed by Respondent No. 7 Gangesh Kumar Chaudhary and had set aside the appointment of Appellant on the post of Gram Dak Sevak with a direction to authorities to consider Respondent No. 7 for appointment on the post of Gramin Dak Sevak Branch Post Office [GDSBPO]. 4. The facts leading to present appeal are summarized as follows: 4.1. In 1991, Respondent No. 7 Gangesh Kumar Choudhary passed the Bihar School Examination with 42% receiving 376 marks out of 900. The certificate issued by Bihar School Education Board recorded his date of birth as 28.02.1976. In 2003, he appeared and passed the Madhyama examination conducted by the Bihar Sanskrit Shiksha Board [BSSB] with significantly higher marks as he received 608 marks out of 700. In the certificate issued on 15.07.2003, the same date of birth i.e. 28.02.1976 has been recorded. 4.2. On 06.5.2008, Respondents issued an advertisement for the post of Gramin Dak Sevak Branch Post Office. Total 180 persons applied for the post, including the Appellant and Respondent No. 7. A merit list of 10 candidates was prepared. Respondent No. 7 was placed at Sr. No. 3, while the Appellant was placed at Sr. No. 7. When they appeared for verification of documents, a discrepancy was found in Respondent No. 7's date of birth. Because, in the letter issued by BSSB on 17.09.2010, the date of birth of Respondent No. 7 was stated to be 28.02.1986. While the certificate issued by BSSB on 15.07.2003, mentioned the date of birth as 28.02.1976. Accordingly, on 20.09.2010, the Inspector of Posts reported the discrepancy to the Superintendent of Posts. On 11.10.2010, Appellant Alok Kumar Jha, was appointed to the GDSBPO position. He joined the same and continues to work on this post. 4.3. On 25.10.2010, Respondent No. 7 filed O.A. No.797 of 2010 before the CAT, Patna, challenging the appointment of Appellant. He stated that he received 608 marks out of 700 while the Appellant had received 588 in the Madhyama Examination. He joined the same and continues to work on this post. 4.3. On 25.10.2010, Respondent No. 7 filed O.A. No.797 of 2010 before the CAT, Patna, challenging the appointment of Appellant. He stated that he received 608 marks out of 700 while the Appellant had received 588 in the Madhyama Examination. Since he has got higher marks than the Appellant, he should be considered for appointment to the GDSBPO post. The State of Bihar submitted a Written Statement, pointing out the discrepancy in Respondent No. 7's date of birth. On 01.09.2011, BSSB, in response to an RTI request, confirmed Respondent No. 7's date of birth as 28.02.1976. Respondent No. 7 relied on this reply of BSSB. The Appellant on the other hand, argued before the CAT that Respondent No. 7's marks from the Sanskrit Board examination should be disregarded due to his prior matriculation in 1991 and lower marks obtained in that exam. 4.4. The CAT, on 07.08.2015 allowed the Original Application filed by Respondent No. 7 and ruled in his favour. It concluded that Respondent No.7's date of birth is 28.02.1976. It also held that authorities cannot ignore the marks obtained by Respondent No.7 in the BSSB Madhyama examination conducted in 2003. The Tribunal thus quashed and set aside the Appellant's appointment and directed the Respondent authorities to consider Respondent No. 7 for appointment on the post of GDSBPO. 4.5. Aggrieved by the order of the Tribunal, the Appellant preferred a Writ Petition (CWJC No.13602 of 2015) with the Patna High Court. The High Court on 03.09.2015 granted a stay on the Tribunal's order. During the pendency of appeal before the High Court, a CBI investigation was directed to be conducted regarding the discrepancy in the date of birth of Respondent No. 7. It is not clear from the record whether the CBI investigation report was produced before the High Court when it heard this matter. 4.6. On 17.01.2022 by the impugned order, the High Court upheld the CAT's order and dismissed Appellant's Writ Petition. It also concluded that from the certificate issued by BSSB, the date of birth of Respondent No.7 is clear, which is 28.02.1976. The Respondent authorities' attempt to justify the Appellant's appointment by raising doubts about Respondent No. 7's date of birth was deemed unfounded. It also concluded that from the certificate issued by BSSB, the date of birth of Respondent No.7 is clear, which is 28.02.1976. The Respondent authorities' attempt to justify the Appellant's appointment by raising doubts about Respondent No. 7's date of birth was deemed unfounded. The Court also rejected the Appellant's argument about Respondent No. 7 having two matriculation certificates, stating there was no rule preventing him from appearing in the Madhyama examination after matriculating. Furthermore, the Court found no merit in the Appellant's claim that Respondent No. 7's earlier, lower matriculation marks should be considered instead of his later, higher Madhyama marks. This argument was rejected as it was not raised initially and no departmental rule supported it. Thus, it held that Appellant's appointment was done illegally, ignoring the legitimate claim of Respondent No. 7. Further it held that no case is made out for directing the authorities to consider any alternative appointment of the petition at any other vacant post. With this, the High Court dismissed the Writ Petition preferred by the Appellant. 5. After perusing through the record, we conclude that Respondent No. 7 may be accommodated against the post in question (supervisory post/Gramin Dak Sevak) to be created by the respondent, considering the fact that the appellant has continued for 15 long years of continuous service. There is no fault or mischief attributed to the appellant in getting the appointment. It would be unjust and unfair to throw him out of service at this stage. On the other hand, respondent no. 7 was higher in merit as such his case also cannot be brushed aside, and all the more when on enquiry it has been found that according to the correct date of birth, he was eligible and was within the age limit. The impugned order cannot be faulted to that extent. 6. Accordingly, we modify the impugned order dated 17.01.2022 passed by the High Court of Judicature at Patna in CWJC No. 13602 of 2015 as also the order of CAT dated 07.08.2015 and issue the following directions: and issue the following directions: (i) Appointment of the appellant is upheld. (ii) Respondent-state to create a supernumerary post and adjust respondent no. 7 against the said post. (iii) Notional service benefits be given to respondent no. 7 w.e.f. the date of the judgment of the CAT i.e. 07.08.2015. (ii) Respondent-state to create a supernumerary post and adjust respondent no. 7 against the said post. (iii) Notional service benefits be given to respondent no. 7 w.e.f. the date of the judgment of the CAT i.e. 07.08.2015. However, no back wages to be paid to respondent no.7. 7. The above order has been passed in the peculiar facts and circumstances of the case. 8. The appeal is allowed to the above extent. 9. Pending application(s), if any, shall stand disposed of.