High Court
Case Details
WP(C) 3845/2012 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI HON’BLE MR. JUSTICE P. K. MUSAHARY
Legal Reasoning
Aggrieved by the order, dated 14.09.2011, passed, in Original Applicatio n (in short, ’OA’) No. 253 of 2010, by the learned Central Administrative Tribun al, Guwahati Bench, the present petitioner, who was respondent No. 6 in the said OA, has filed this writ petition putting to challenge the correctness and legal ity of the findings arrived at by the learned Central Administrative Tribunal (i n short, the ’learned Tribunal’) and the direction issued therein to the respond ent Nos. 1 to 5 herein to consider the case of the respondent No. 6 herein (who was the applicant in the OA) vis-à-vis other candidates. We have heard Ms. A. Chakroborty, learned counsel, appearing on behalf of the pe titioner, and Mr. D. Singha, learned Central Government counsel, appearing on be half of the respondent Nos. 1 to 5. We have also heard Mr. K. Uddin, learned cou nsel, appearing for the respondent No. 6. The respondent No. 6 herein approached, as applicant in the OA No. 253 of 2010, the learned Tribunal seeking to get cancelled, set aside and/or quashed the sele ction and appointment of the present petitioner (who was respondent No. 6 in the OA), as Gramin Dak Sevak, by appointment letter, dated 22.09.2010, issued, in t his regard, by the respondent No. 4 herein and also to appoint the applicant (i. e., the respondent No. 6 herein) to the said post pursuant to the advertisement, dated 22.09.2010, issued in this regard. The case of the applicant (i.e., respondent No. 6 herein), as presented in the O A, was, in brief, thus: The applicant (i.e., respondent No. 6 herein) passed the HSLC examination, in the year 2008, with first division, by securing 360 marks. When the applicant was in search of a suitable job for his livelihood, he came across an advertisement, published on 04.08.2010, inviting applications for fill ing up the post of Gramin Dak Sevak Branch Post Master (in short, ’GDSBPM’), Bar uala Branch Post Office, under Anipur Sub-Post Office, in Karimganj. The presen t petitioner (who was respondent No. 6 in the said OA) was also a candidate in t he said selection process. The applicant came to know that the respondent No. 6 in the OA (i.e., the petitioner herein) had been appointed to the said post, th ough the respondent No. 6 in the OA (i.e., the petitioner herein) had obtained o nly 249 marks; whereas the applicant (i.e., the respondent No. 6 herein) had sec ured only 360 marks out of 600 marks and yet the applicant had not been selected and it was the respondent No. 6 (i.e., the present petitioner) who was appointe d to the said post. While State respondents resisted the OA, the present petitioner (i.e., responden t No. 6 in the OA) did not file any counter in the OA. It may be noted that, while allowing the OA, the learned Tribunal observed as un der: (cid:28)From the perusal of Rule 4 of 2001, it is clear that the Postal Service Board h as taken a decision that the sole criteria for selection to the post of all cate gories of GDS henceforth will be the merit subject to orders on reservation and fulfilling other eligibility conditions. Admittedly, the applicant as well as t he Private Respondent No. 6 possessed the requisite qualification but the applic ant secured 360 marks; whereas the Private Respondent No. 6 secured only 249 mar ks out of 600 marks. Therefore, as per the above rule, since merit is the sole criteria, therefore, applicant is to be considered over and above Pvt. Responden t No. 6 having secured higher marks in the matriculation examination. No reason has been put forth by the respondents why they have appointed Pvt. Respondent N
Decision
o. 6 who having secured less marks than the applicant. (cid:29) In the light of the above observation, which the learned Tribunal had made, and the conclusion, which it reached, the learned Tribunal directed as under: (cid:28)In view of the above, we find merit in the argument advanced by the ld. Counsel for the applicant. Hence, the original application is allowed. The selection and appointment to the Pvt. Respondent No. 6 made in pursuance to the advertisem ent dated 28.07.2010 is hereby quashed. The respondents are directed to conside r the case of the applicant vis-à-vis the other candidates of that selection. N o order is passed as to costs. (cid:29) The limited question, which has been raised in the present writ petition, is: Wh ether the observations of the learned Tribunal, made to the effect, that merit i s the sole criteria for appointment to the post of GDS is correct and valid in t he light of the provisions of the relevant Rules ? While considering the above aspect of the case, it may be noted that the relevan t Rules, namely, Gramin Dak Sevaks (Conduct and Employment) Rules, 2001 (in shor t, the GDS Rules’) embodied preferential category. While dealing with the prefer ential category, the Rules read as under: (cid:28)6. Preferential Categories - But the aforesaid instructions/conditions have further been modified by the Post al Service Board on 17.09.2003. The Postal Service Board decided as follows:- 3.1. The condition of income preferably derived from landed property or immovabl e assets for recruitment to the posts of Gramin Dak Sevaks (GDSs) including GDSB PM/ SPM will be deleted. 3.2. As GDS is a part-time employee, a candidate applying for the post of any ca tegory of GDS will have to supplement his income from other employment sources s o as to have adequate means of livelihood to support himself and his family. A certificate to this effect will have to be obtained from the candidate before he /she is given an appointment letter. 3.3. & & & & &. 3.4. & & & & &. 4. In view of the above decisions of the Postal Services Board, the sole criteri a for selection to the posts of all categories of GDS will henceforth be the mer it subject to orders on reservation and fulfilling other eligibility conditions like providing of space for BO, taking up residence in the BO Village before app ointment. 5. & & & & & &. 6. & & & & & &. From the above, it is seen that the sole criteria for selection is merit subject to order on reservation and fulfilling other eligibility conditions like provid ing of space for BO, taking up residence in the BO Village before appointment. Under the aforesaid circumstances, the condition of adequate means of livelihood will have to be fulfilled if a candidate is selected and to that effect a certi ficate/ undertaking will have to be obtained from candidate before he is given a ppointment. (cid:29) What have been re-produced above by the respondent No. 6 (i.e., the applicant in the OA) himself clearly show that though merit has been prescribed to be the so le criterion, this criterion is subject to fulfillment of other eligibility cond itions, such as, providing free accommodation for functioning of the Branch Offi ce at centrally located place, his residence being located in the same village, where the Branch Post Office would be located. Coupled with the above, Clause 3.2 quoted above, clearly shows that GDS is a par t-time employee and a candidate, applying for the post of GDS, will have to supp lement his income from other source so as to adequately support himself and his family and he must furnish a certificate to this effect before appointment lette r is issued to him meaning thereby that no appointment can be made unless the ca ndidate is found to have adequate source of income to support his family if he i s appointed as GDS. Thus, no appointment to the post of GDS can be made if the candidate concerned d oes not have any source of income whatsoever. No advertisement can override the Rules relating to recruitment and appointment. It is, therefore, logical to infe r, and we do hold, that notwithstanding the fact that the advertisement mentions that the selection has to be based on merit, merit alone is not the only essent ial criterion for appointment to the post of GDS. In other words, some other mea ns of livelihood is an essential condition of recruitment and not merely a condi tion of service. The conditions, so given, cannot be ignored and the criterion of merit must be c onsidered subject to the conditions, which has been mentioned in the Clause 3.2, as indicated hereinbefore. The learned Tribunal, as transpires from the observations, made in the impugned order, formed the opinion that merit alone was the criterion for selection and a ppointment and because of the fact that the applicant (i.e., the respondent No.6 herein) had secured more marks, he was directed to be appointed and the appoint ment of the present petitioner, who was respondent No. 6 in the OA, was set asid e. The opinion, so formed, by the learned Tribunal, is, in the light of what hav e been indicated above, erroneous and cannot be, therefore, sustained. When the impugned decision is found to rest on a conclusion, which is not correct, the de cision cannot be sustained and has to be interfered with. It is also pertinent to note that, in the case at hand, the OA does not mention that the applicant (i.e., the respondent herein) had no source of income or any means of livelihood to supplement his part-time employment as GDS. Moreover, in the OA, the applicant (i.e., the respondent herein) had, nowhere, s tated that he had any alternative employment/source of income. At the same time, the learned Tribunal had also not taken into account the case of the present pe titioner (respondent No. 6 in the OA) and determined if the present petitioner h ad satisfied the eligibility criterion of having source of income/means of livel ihood as required by the Rules. Because of what have been discussed and pointed out above, we are of the view th at the impugned order, dated 14.09.2011, aforementioned has to be set aside and the proceedings need to be remanded to the learned Tribunal for a decision afres h. Considering, therefore, the matter in its entirety and in the interest of justic e, the impugned order is hereby set aside and the proceedings are remanded to th e learned Tribunal for a decision, in accordance with law, in the light of the f acts, which may come on record. With the above observations and directions, this writ petition stands disposed o f. No order as to costs.