M. Selvam v. Union of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 10.01.2007CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAandTHE HONOURABLE MR. JUSTICE K. CHANDRU W.P.NOs.18461 & 18462 of 2000M. Selvam.. Petitioner in both WPsVs.1. Union of India, rep. by the Chief Postmaster General, Tamil Nadu Circle, Chennai 600 002.2. The Superintendent of Post Offices, Arakkonam Division, Arakkonam 631 001.3. K. Senji..Respondents in both WPsW.P.NO.18461 of 2000 has been filed under Article 226of the Constitution of India for the issuance ofCertiorarified Mandamus after calling for the concernedrecords from the respondents, quash the order of theCentral Administrative Tribunal in O.A.No.95 of 1996 dated4.5.1998 and consequently direct the 1st and 2nd respondentsto reinstate the petitioner as Branch Post Master withcontinuity of service, full backwages and all attendantbenefits.W.P.NO.18462 OF 2000 has been filed under Article 226of the Constitution of India for the issuance ofCertiorarified Mandamus after calling for the concernedrecords from the respondents, quash the order of theCentral Administrative Tribunal in O.A.No.766 of 1998 dated9.12.1999 and R.A.No.30 of 2000 dated 28.8.2000 andconsequently direct the 1st and 2nd respondents to reinstatethe petitioner as Branch Post Master with continuity ofservice, full backwages and all attendant benefits. For Petitioner: Mr. Balan HaridasFor Respondents 1&2 : Ms. Narmada Sampath, ACGSCFor Respondent-3: Mrs. Jothivani https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER(Order of the Court was made by P.K. MISRA, J)Heard Mr. Balan Haridas for the petitioner,Mrs.Narmada Sampath, Addl. Central Government StandingCounsel for the Respondents 1 and 2 and Mrs. Jothivani forRespondent No.3.2. The question in these writ petitions relate toselection of Extra Departmental Branch Postmaster. Anotification was issued for such post on 25.8.1995. Thepresent petitioner as well as the present Respondent No.3were candidates in addition to several other candidates.There is no dispute that the present Respondent No.3belongs to Scheduled Caste community. Initially thepresent petitioner was selected and was allowed to join.At that stage, the present Respondent No.3 filed O.A.No.95of 1996 challenging her non-selection and the selection ofthe present petitioner. The Tribunal, at that stage, cameto the conclusion that the present Respondent No.3 had beenillegally excluded on the basis of the pressure put by thelocal villagers and not according to the Rules and directedthe Department to have a fresh selection by order dated4.5.1998. Thereafter, the Department communicated to thepresent petitioner by office letter dated 25.6.1998 that afresh selection would be held on 25.7.1998. At that timethe present petitioner did not challenge such communicationor the order of the Tribunal. Subsequently, in the freshselection held, the petitioner as well as Respondent No.3had participated. The Department by order dated 6.8.1998appointed the present Respondent No.3 as Extra DepartmentalBranch Postmaster. The above order was challenged by the petitioner byfiling O.A.No.766 of 1998.The Department in the counter affidavit filed beforethe Tribunal clarified that the present Respondent No.3 hadbeen selected taking into account the fact that she belongsto Scheduled Caste category and the candidates belonging toScheduled Caste have been grossly underrepresented andtherefore such Respondent No.3 was preferred. TheDepartment had also relied upon Instruction No.6 of theMethod of Recruitment given in Swamy's ED Rules (1995Edition). O.A.No.766 of 1998 having been dismissed byorder dated 9.12.1999, the present petitioner filed ReviewApplication No.30 of 2000, which has been rejected by the https://hcservices.ecourts.gov.in/hcservices/ Tribunal vide order dated 28.8.2000. Thereafter thepetitioner has filed W.P.No.18461 of 2000 against the firstorder of the Tribunal in O.A.No.95 of 1996 dated 4.5.1998,filed by Respondent No.3, and W.P.No.18462 of 2000 againstthe orders of the Tribunal in O.A.No.766 of 1996 dated9.12.1999 and R.A.No.30 of 2000 dated 28.8.2000. 3. The main contention of the learned counsel forthe petitioner is to the effect that as per the InstructionNo.2 of the Method of Recruitment, selection has to takeplace on the basis of the marks obtained in the qualifyingexamination, namely, Matriculation or equivalentexaminations. Since the present petitioner has securedmore marks compared to Respondent No.3, he has to beselected. He has further contended that since the post isnot reserved for SC Category, the petitioner should havebeen preferred for the post. Learned counsels appearingfor the respondents have supported the conclusion of theTribunal.4. Having heard the counsel for the parties atlength and having bestowed our anxious consideration to thecontentions raised, we are unable to accept any of thesubmissions made by the counsel for the petitioner. 5. The method of selection no where states thatselection is only on the basis of marks obtained in thequalifying examination. Instruction No.6 being relevant isextracted hereunder :"6. Preferential Categories:The last orders issued in this connectionunder Letter No.43-191/79-Pen., dated 22-6-1979,fixing the four preferential categories accordingto the earlier orders issued vide D.G., P. & T.,Letter No.43-14/72-Pen., dated 2-3-1972, No.43-246/77-Pen., dated 8-3-1978, to Scheduled Castesand Scheduled Tribes candidates; and No.43-231/78-Pen., dated 17-2-1979 (regarding Ex-Army PostalService Personnel); No.43-312/78-Pen., dated 20-1-1979 (regarding Backward Classes and weakersections of Society) and to the educatedunemployed persons, it is clarified that the abovepreference should be subject to first and foremostcondition that the candidate selected should havean adequate means of livelihood, which thoughalready prescribed, seems to have been ignored forsome time past especially in view of these https://hcservices.ecourts.gov.in/hcservices/ preferential categories being introduced in theabove orders."6. In the present case, the Department hasclearly explained in the counter that the candidatesbelonging to SC Community were grossly underrepresented andtherefore Respondent No.3 had been preferred. It is alsoapparent from the materials on record that initialselection of the petitioner was based on the pressure putby the local villagers. The Tribunal had set aside theselection, but the petitioner had not preferred tochallenge such order of the Tribunal immediately. Onlyafter he was not selected during the second selectionprocess, he has come out with WP.No.18461 of 2000,challenging such order. Therefore, it can be concludedthat validity of the order in O.A.No.95 of 1996 had beenaccepted at that stage by the present petitioner. 7. Learned counsel appearing for the petitionerhas relied upon a decision of the Supreme Court reported in2000 SCC (L&S) 362 (NAR SINGH PAL v. UNION OF INDIA ANDOTHERS) and submitted that there has been no waiver ofright. The said case relate to retrenchment and theSupreme Court held that acceptance of compensation wouldnot amount to waiver. 8. In our considered opinion, the ratio of thesaid decision is not applicable to the present case. Inthe present case, initial selection of the presentpetitioner was specifically challenged and the Tribunaldirected that there should be fresh selection by settingaside the selection of the present petitioner. The presentpetitioner instead of challenging the order had kept quietand, on the other hand, also participated in the furtherselection. The principle of waiver and acquiescence beingsquarely applicable, W.P.No.18461 of 2000 is liable to berejected.9. Since it cannot be said that selection isbased on any irrelevant consideration, we do not think itwould be justified on our part to interfere with the orderpassed by the Department which has been again confirmed bythe Tribunal in O.A.No.766 of 1998 and in R.A.No.30 of 2000.10. It is well settled that while dealing with awrit of certiorari under Article 226 of the Constitution ofIndia, the High Court does not sit as an appellate courtover the decision of the Tribunal or the quasi judicialauthority and only if there is error apparent on the face https://hcservices.ecourts.gov.in/hcservices/ of the order, the High Court can interfere. In the presentcase, it is indeed very difficult to come to a conclusionthat there was any error on the face of the order of theTribunal in O.A.No.766 of 1998 or in the subsequent orderdismissing the Review Application No.30 of 2000.Therefore, W.P.No.18462 of 2000 is also liable to berejected. 11. Learned counsel for the petitioner has reliedupon a decision of the Supreme Court reported in 1995 Supp(4) SCC 706 (HARPAL KAUR CHAHAL (SMT) v. DIRECTOR, PUNJABINSTRUCTIONS, PUNJAB AND ANOTHER) in support of hiscontention that qualification should be on the date ofnotification and if a person acquires qualificationsubsequent to the date indicated in the notification itwill not make him eligible for the post. 12. We do not see how this decision can be madeapplicable to the facts of the present case. In thepresent case, there is no question of fresh qualification.The instructions only contain various guidelines includingpreference given to certain categories. The questioninvolved is also not whether the post is reserved or not.Therefore, this decision is not all applicable to the factsof the present case.13. The writ petitions are accordingly dismissed.Dismissal of both the writ petitions shall not stand in theway of the respondents 1 & 2 for considering the petitionerin future for any other vacancy in accordance with theRules. No costs. dpkSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1.The Chief Post Master General,Union of India, Tamil Nadu Circle, Chennai 600 002. https://hcservices.ecourts.gov.in/hcservices/

2. The Superintendent of Post Offices, Arakkonam Division, Arakkonam 631 001.•2 cc to Mr. Balan Haridoss, Advocate sR 1693•One cc to M/s s. JothiVani, Advocate SR 1538•One cc to M/ Narmatha Sampath, advocate sR 1209•MDR (co)sg 06/02/08COMMON ORDER INWP.Nos.18461 & 18462/0010-01-2008