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CASE NO.:

Appeal (civil) 6275 of 2004

PETITIONER:

SUMAN VERMA

RESPONDENT:

UNION OF INDIA & OTHERS

DATE OF JUDGMENT: 24/09/2004

BENCH:

Arijit Pasayat & C.K. Thakker

JUDGMENT:

J U D G M E N T

(Arising from Special Leave Petition (civil) No. 8809 of 2004)

Thakker, J.

Leave granted.

The present appeal is filed against the judgment and order dated

April 2, 2004 passed by the High Court of Judicature at Patna in

C.W.J.C. No.4106 of 2004. By the said order, the High Court

confirmed the order passed by the Central Administrative Tribunal

("CAT" for short) Patna Bench, Patna on March 9, 2004 in Original

Application No.307 of 1997.

The case of the appellant herein is that she passed her

Matriculation Examination from Bihar School Examination Board,

Patna in 1983 in Second Division securing 531 marks out of 900

marks. She passed B.A. with Honours from Muzaffarpura in 1st

Division in 1988. In the year 1996, she got her name enrolled with

the Employment Exchange. She was possessing agricultural land of

10 Kathas having purchased from one Dwarka Prasad by a registered

sale deed dated 1st March, 1995. She was also having a residential

house in village Khajuhathi.

According to the appellant, a post of Extra Departmental

Branch Post Master ("EDBPM" for short), Khajuhathi Post Office,

Block Manjhi fell vacant as the EDBPM, Post Office, Khajuhathi got

promotion. A notification was, therefore, issued for filling of the said

vacancy and names of eligible candidates were called from Regional

Employment Exchange, Chhapra vide a letter dated 14th October,

1996. According to the appellant, nine names were sent by the

Employment Exchange. The appellant was found eligible, qualified

and most suitable. Accordingly, the appellant was appointed to the

said post by an order dated December 13, 1996. Since then, she is

working as EDBPM, Khajuhathi.

The appellant stated that though respondent No.6 was neither

eligible nor qualified to be appointed as EDBPM, she was aggrieved

by the appointment of the appellant and the action taken by the

authorities and approached the Central Administrative Tribunal

(CAT) by filing Original Application challenging the appointment of

the appellant. It was contented by respondent No.6 before the CAT

that though she was eligible and qualified and was more meritorious

inasmuch as she had obtained 584 marks out of 900 marks as against

the appellant who had obtained 531 marks at the Matriculate

examination, she was not appointed. It was also her case that she

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possessed agricultural land as required and proof of having possessed

such agricultural land was produced by her. It was, therefore,

obligatory for the authorities to consider her case and she ought to

have been preferred as against the appellant.

The CAT after considering the rival contentions of the parties,

allowed the petition holding that the case of the applicant before the

CAT (respondent No.6 herein) had been ignored on flimsy grounds

keeping aside the merits of the contesting candidates. Resultantly, the

order dated 13th December, 1996 was set aside by the CAT and a

direction was issued to appoint respondent No.6 (applicant before the

CAT) forthwith. The Tribunal also observed that since respondent

No.6 (appellant herein) was working since several years, on account

of delay in disposal of the Original Application, the authorities were

directed to consider if she could be appointed "in the vicinity if and

when such vacancy arises" provided she is otherwise fit and eligible

for such appointment.

Being aggrieved by the order passed by the CAT, the appellant

approached the High Court of Patna. The High Court, however,

confirmed the decision of CAT and dismissed the petition. Against

the said decision, therefore, the appellant has approached this Court.

We have heard the learned counsel for the parties. Mr.

Goswami, learned senior counsel for the appellant strenuously urged

that respondent No.6 was neither eligible nor qualified to be appointed

as EDBPM and she was, therefore, rightly ignored by the authorities.

Drawing the attention of the court to the notification issued by the

authorities, the counsel submitted that it was absolutely necessary that

the candidate must have possessed sufficient landed property in

his/her name and he/she was required to produce the relevant record

in token of having possessed such property. In the instant case,

respondent No.6 did not possess immovable property and the said fact

was duly considered by the authorities in its proper perspective and a

decision was taken that she was not eligible. The CAT ought not to

have interfered with such a decision and should not have issued

direction to the authorities to appoint her. The order, therefore,

deserves to be set aside. It was also argued that a totally irrelevant

and extraneous factor was kept in mind by CAT of marks obtained by

two candidates at the Matriculation Examination. The counsel

submitted that the necessary educational qualification was passing of

Matriculation Examination and not marks obtained in the said

examination. Once a candidate is eligible, his case is required to be

considered in accordance with the guidelines and norms fixed by the

Department and there can be no "preference" of one over the other.

The said fact, therefore, should not have weighed with the authority

and on that ground also, the decision is vulnerable. It was contended

that a direction was issued by CAT to "appoint" respondent No.6. No

such direction could have been issued by CAT even if it was satisfied

that the action taken by the authorities was not in consonance with

law. The limited direction which could be issued could be to set aside

the decision taken by the authorities and to consider the matter afresh

in accordance with law. Finally, it was submitted that the appellant

was found to be most suitable by the authorities and was appointed as

early as in 1996. About eight years are over and she is working as

EDBPM. If at this stage, the appointment is cancelled, serious

prejudice will be caused to her. It was, therefore, urged that even if

this Court is of the view that the action taken by the authorities could

not be termed legal or lawful, in peculiar facts and circumstances of

the case, the appointment of the appellant may not be cancelled.

Mr. Harish Chandra, learned senior counsel for the Union of

India supported the case of the appellant. It may, however, be stated

that the authorities have not challenged the decision of CAT before

the High Court or in this Court.

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Mr. Amit Pawan, the learned counsel for respondent No.6, on

the other hand, supported the order passed by the Tribunal and

confirmed by the High Court. It was urged that respondent No.6 was

eligible and qualified. She possessed agricultural property as per the

requirement of the Notification. Referring to the conditions in the

Notification issued by the Department of Posts, the counsel submitted

that respondent NO.6 fulfilled all the conditions mentioned in the

Notification. She was the permanent resident of the village. She had

passed her Matriculate Examination and secured more marks than the

marks secured by the appellant herein. She had adequate means of

income from independent source of livelihood and necessary

certificate had been produced by her. It was stated that pursuant to the

gift deed dated October 14, 1996, she became the owner of

agricultural land. The last date for submission of the applications was

12th November, 1996. Respondent No.6 became owner of agricultural

land on October 29, 1996, i.e. before the last date of submission of

application. The mutation entry, however, could be made on

November 22, 1996. It is thus clear, submitted the counsel, that

respondent No.6 became owner of immovable property prior to the

last date of submission of application, but the mutation entry could be

effected in Revenue Record subsequently. But from that, it cannot be

said that respondent No. 6 did not possess agricultural land on the last

date of submission of application. Entry in Revenue Record is

immaterial so far as the title or ownership of the land is concerned.

That fact, therefore, could not have been considered by the authorities

and the CAT committed no error of law or of jurisdiction in setting

aside the action of the authorities and directing them to appoint

respondent No.6 as she was more meritorious. It was also submitted

that since the relevant education qualification is Matriculation, marks

obtained at the said examination would indeed be relevant and the

Tribunal was wholly justified in placing reliance on marks obtained at

the said examination. The order, therefore, required no interference.

It was also confirmed by the High Court. Respondent No.6 had

approached the CAT as soon as the action was taken by the

department but CAT took time in final disposal of the matter which

should not come in the way of respondent No.6 in getting appropriate

relief. In any case, appropriate observations have been made by the

Tribunal to accommodate the appellant, if it is possible. The counsel,

therefore, submitted that the appeal deserves to be dismissed.

Having heard the learned counsel for the parties and having

gone through the record, we are of the view that the decision rendered

by the CAT and confirmed by the High Court needs no interference.

It is clear from the notification and the conditions laid down therein

that both, appellant as well as respondent No. 6 were qualified. So far

as education qualification is concerned, both have passed Matriculate

examination. Clause D of the notification required a candidate to

have passed Matriculate or equivalent examination. It also stated that

no weightage would be given to higher qualification. It is thus clear

that the authorities were to consider the factum of passing of

Matriculation examination. From the record, it is further clear that

whereas the appellant had obtained 531 marks out of 900 marks,

respondent No. 6 had obtained 584 marks. Respondent No. 6 was

thus more meritorious so far as marks obtained at the Matriculation

examination was concerned. It may be stated at this stage that it is not

even the case of the Department that respondent No. 6 did not possess

requisite educational qualification.

The consideration weighed with the authority was that the

appellant was having agricultural land in her name, while respondent

No. 6 did not possess agricultural land and thus she was not eligible.

Now, it is the case of respondent No. 6 that she had become owner of

the agricultural land on the basis of the gift-deed dated October 14,

1996, before the last date of submission of application. Mutation

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entry could not be affected before 12th November, 1996 and it was

done on 22nd November, 1996. CAT, in our opinion, rightly held that

in the circumstances, it could not be held that respondent No. 6 did

not possess agricultural land on the last date of submission of

application form and it could not be said that she was not eligible.

Our attention in this connection was invited by learned counsel

for both the parties to a decision in Rekha Chatravarti v. University

of Rajasthan (1993) Supp. 3 SCC 168. In that case, an

advertisement/notification was issued inviting applications for the

post of Assistant Professors having requisite qualifications. Some

candidates had no requisite qualification. They, however, acquired

such qualification afterwards. The question before this Court was

whether such candidates could be treated as qualified, eligible and

having acquired necessary qualification at the relevant date. This

Court held that the candidate must be qualified on the last date of

making application for the post advertised or on the date specifically

mentioned in the advertisement/notification. Qualifications acquired

by a candidate after such date cannot be taken as qualification for the

post and he cannot be appointed.

One of the guidelines issued by this Court reads;

"B. The candidates selected must be qualified as

on the last date for making applications for the posts in

question or on the date to be specifically mentioned in

the advertisement/notification for the purpose. The

qualifications acquired by the candidates after the said

date should not be taken into consideration, as that would

be arbitrary and result in discrimination. It must be

remembered that when the advertisement/notification

represents that the candidate must have the qualifications

in question, with reference to the last date for making the

applications or with reference to the specific date

mentioned for the purpose, those who do not have such

qualifications do not apply for the posts even though they

are likely to acquire such qualifications and do acquire

them after the said date. In the circumstances, many who

would otherwise be entitled to be considered and may

even be better than those who apply, can have a

legitimate grievance since they are left out of

consideration." (emphasis supplied)

Learned counsel for the appellant submitted that respondent No.

6 got her name mutated in Revenue Records on November 22, 1996

and that is the relevant date. Last date of submission of application

was 12th November, 1996. The ratio laid down in Rekha Chaturvedi

thus applies to the case on hand and as respondent No. 6 was not

eligible, her case could not be considered.

In our considered opinion, however, the learned counsel for

respondent No. 6 is right in submitting that respondent No. 6 had

become owner of agricultural land in October, 1996. The relevant

date for consideration was November 12, 1996 and before that date,

she possessed such property. Rekha Chaturvedi, in our view, supports

respondent No. 6 rather than the appellant. When respondent No. 6

became the owner of the property in October, 1996 before the last

date of submission of application, she could be said to be possessing

agricultural land and, hence, she was eligible. In our opinion, owning

of agricultural property and getting the name entered in Revenue

Record are two different and distinct things. Mutation entry does not

confer right or title to the property. Though the law is very well

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settled, in our opinion, the CAT was right in relying upon the decision

of this Court in Sawarni v. Inder Kaur and Others AIR 1996 SC 2823

wherein this Court held that mutation entry neither creates nor

extinguishes title or ownership.

In view of settled legal position, in our judgment, CAT as well

as the High Court were right in holding that though respondent No. 6

was eligible having possessed agricultural land, her case was ignored

by the authorities and hence, the action was illegal and improper. In

view of the fact that respondent No. 6 was more meritorious, since she

had obtained more marks than the appellant, the direction of CAT to

appoint her cannot be said to be illegal or unlawful. The said

direction is, therefore, not interfered with. CAT has also referred to

para 2 of the Executive Order dated May 10, 1991, issued by the

Director General of Post, New Delhi, which reads thus;

"The deciding factor for the selection of ED

BPMs/ED SPMs should be the income and property and

not the marks, has been examined threadbare but cannot

be agreed to as this will introduce an element of

competitiveness in the matter of possession of property

and earning or income for determining the merit of

candidates for appointment as ED Agents. Proof of

financial status is not only subject to manipulation but is

also detrimental to merit. When the Constitution of India

guarantees equal opportunity to all for their

advancement, the reasonable course would be offer ED

employment to the person who secured maximum marks

in the examination which made him eligible for the

appointment, provided the candidate has the prescribed

minimum level of property and income so that he has

adequate means of livelihood apart from the ED

Allowance."

Regarding appointment and continuance of the appellant for a

period of almost eight years in service, it may be stated that

respondent No. 6 had approached a competent Tribunal for ventilating

her grievance immediately after the issuance of order in favour of the

appellant. It was because of the pendency of the matter before the

Tribunal that respondent No. 6 could not get the case decided and the

matter finally adjudicated. The learned counsel for respondent No. 6

is, therefore, right in submitting that the said fact should not cause

prejudice to respondent No. 6 who had approached the Tribunal in

time. To us, the CAT is right in considering the matter in its entirety

and in making observations that the case of the appellant herein be

considered for appointment as EDBPM in the nearby vicinity if

otherwise she is fit.

No doubt relying on Rekha Chaturvedi, the learned counsel for

the appellant submitted that in that case this Court after holding the

selection process unlawful, did not interfere with the action and

refused to set aside illegal appointment on the ground that the case

was heard after eight years. In the case on hand, however, respondent

No. 6 had approached the Tribunal immediately, the Tribunal

considered the facts and circumstances of the case and granted relief

to respondent No. 6 and also made suitable observations so that the

present appellant may be accommodated if possible. Moreover that

order was confirmed by the High Court. We, therefore, see no reason

to disturb that direction.

For the foregoing reasons, the appeal deserves to be dismissed

and is, accordingly, dismissed. In the facts and circumstances of the

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case, however, there shall be no order as to costs.