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UNION OF INDIA THROUGH SR. SUPDT. OF POST OFFICES, GORAKHPUR versus ONKAR CHAND

High Court of Judicature at Allahabad

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Union Of India Through Sr. Supdt. Of Post Offices, Gorakhpur v. Onkar Chand - WRIT - A No. 26524 of 2001 [2006] RD-AH 8108 (20 April 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

  Court No. 37

Civil Misc. Writ Petition No. 26524   of 2001

The Union of India through Senior Superintendent of Post Offices

Versus

Shri Onkar Chand

Hon.R.K.Agarwal.J.

Hon.Sanjay Misra J.

This writ petition is directed against the order  dated 22.5.2001 passed by the Central Administrative Tribunal Allahabad Bench Allahabad in Original Application No. 1029 of 1999 ( Onkar Chand Versus Union of India and others). An advertisement was issued by the petitioner for appointment on newly created post of  Extra Departmental Branch Post Master at Branch Post Office Singha Kauri Ram Gorakhpur . Requisition was sent to the Employment Exchange Gorakhpur for sponsoring the name of suitable candidate . It was stipulated in the said requisition that preference will be given to scheduled caste candidates. In response  the Employment Exchange Gorakhpur sponsored the name of five candidates  none of whom belonged to the schedule castes.  However, one Kamlesh Prasad a scheduled caste candidate duly registered in the Employment Exchange  applied for being appointed.  He also filed an Original Application No. 152 of 1997 before the Central Administrative Tribunal Allahabad Bench Allahabad where it was ordered  that candidature of Kamlesh Prasad should also be considered. While considering the name of all aforesaid candidates, Kamlesh Prasad was not found suitable. Two candidates did not respond to the registered letters sent to them. Application of one candidate did not contain any evidence regarding landed property and income certificate, hence he was not considered. The respondent no.1 and Smt.  Satyabhama Singh were left whereupon the respondent no.1 was selected to be appointed and was given appointment letter dated 29.4.1998.  However, by order dated 27.8.1999 the services of the respondent no.1 were terminated in exercise of powers under section 6 B of the Extra Departmental Agents Conduct and Service Rules 1964. Reading of the aforesaid  order indicates that  services  of the respondent no.4 were terminated by giving one month's notice and pay in lieu thereof . Feeling aggrieved against the said termination order, the  respondent no. 1 filed Original Application No. 1029 of 1999 before the Central Administrative Tribunal Allahabad Bench Allahabad  on various grounds.

A counter affidavit has been filed on behalf of the respondent no.1 wherein it has been stated that aforesaid Kamlesh Prasad filed a complaint before the Post Master General Gorakhpur  whereupon the said Post Master General Gorakhpur has reviewed the entire selection and directed for passing the order of termination against the petitioner . It is contended that there was no irregularity in the selection and the respondent no.1 was selected on his merits. It is stated that the order of termination has been passed at the dictates of higher authorities and therefore, is liable to be set aside.

In the rejoinder affidavit the petitioner has denied the averments in the counter affidavit  but the fact that the advertisement mentioned that preference will be given to the scheduled caste candidates is accepted and also that no scheduled caste candidate was sponsored by the Employment Exchange.  It is however, stated that since the respondent no.1 did not belong to the scheduled caste  therefore, he was not entitled to be selected. When the aforesaid fact of the respondent no.1 not being a scheduled caste came to the notice of the higher authorities, the services of the respondent no.1 were terminated.  It has also been stated that the respondent no.1 and Smt. Satyabhama Singh were husband and wife. They had made application separately for the same post by giving wrong address. However, the order of termination has been defended on the ground that appointment being purely temporary could be terminated by giving notice or one month's salary in lieu thereof therefore, no error can be found in the order of termination. Judgment of the Central Administrative Tribunal has been challenged on the aforesaid grounds.

Heard learned counsel for the parties and perused the impugned judgment of the Central Administrative Tribunal. The Tribunal has found that objection taken by the respondents therein  regarding making of application separately by husband and wife for the same post does not suffer from any illegality in as much as there is no provision prohibiting such persons from making application for appointment on the said post.  The  objection that the  order of termination was passed since there was short fall in scheduled caste candidate in the recruitment unit  has also been  dealt with by the Central Administrative Tribunal wherein it has recorded that  notification issued for inviting applications for the post did not contemplate that it was for the reserved category. Only mention in the requisition was that candidates belonging to the schedule caste will be given preference . It found that  one scheduled caste candidate was considered and he was not found fit consequently since the advertisement itself did not contemplate for reservation of the post for scheduled caste candidate therefore, the order of termination on the said ground  was illegal. The  Tribunal has proceeded to record that the order of termination clearly indicates at item no.5 that same has been passed  in response to the Post Master General's  letter dated 20.8.1999, therefore, relying upon the decision of a Full Bench of  the Central Administrative Tribunal it was held that such an order cannot be sustained . In the counter affidavit  filed before this court, the respondent has  annexed a copy of the counter affidavit filed  by the petitioners before the Central Administrative Tribunal   wherein in paragraph 8 it has been clearly stated that order dated 20.8.1999 was passed by the higher authority under Rule 6 of  the Extra Departmental Agents Conduct and Service Rules 1964,  in paragraph 14 and 21 it has been stated that higher authority has reviewed the matter and found that the petitioner  was not fulfilling the requisite conditions. On the aforesaid averments made before  it the  Tribunal   has found that the order of termination is not sustainable  and is liable to be set aside. Consequently direction has been given by the Administrative  Tribunal. Learned counsel for the petitioner has submitted that subsequent requisition dated 4/8-8-2000 with respect to the same post provided that preference  will be given to scheduled caste candidate  and = rejecting the scheduled caste candidate was not in accordance with law, therefore, the higher authority was right in reviewing the matter and terminated the services of the respondent no.1

From the aforesaid it is seen that  Tribunal while considering the three arguments made on behalf of the petitioner has repelled the same on cogent reasons . Firstly that there is no bar for husband and wife for applying for the same post. Learned counsel for the petitioner has not been able to show to this Court any provision whereby such application by two persons related to each other is barred. The ground regarding  short fall in scheduled caste candidate in the  recruiting unit as being a reason for terminating the services after appointment of Respondent no.1 has no merit  since the advertisement itself   only contemplated that preference will be given to scheduled caste candidate. There was only one scheduled caste candidate, his application was considered but having been found unfit he was not selected. On the question that the order of termination was passed on the basis of direction of higher authority, the  Tribunal has found that same could not have been done in law . Learned counsel could not point out any illegality in the said finding and therefore,  no error can be found to such findings..

Learned counsel for the petitioner has placed reliance upon a judgment of the Hon'ble Supreme Court in the case of  Brij Mohan Singh Vs. Union of India and others reported in 2002  SCC (L&S) 1118 and has contended that Rule 6 of the Rules of 1964 authorises the employer to terminate the services at any time by notice in writing therefore, since the respondent no.1 had not completed  more than three years of continuous service hence exercise of power under Rule 6  was in no way erroneous. In the case referred it was held that in view of the gross irregularities and illegalities committed for securing appointment, the appointee therein cannot claim any right to the post. Rule 6 of the said Rules empowers the appointing authority   to exercise its power  emanating there from and there can be no dispute with respect to such power of the appointing authority.   It cannot also be disputed that where appointment has been secured by gross irregularities and illegalities ,the incumbent cannot claim any right to the post.

In the present case order under Rule 6 has been passed by the appointing authority  but the pleadings and facts of this case clearly indicate that the appointing authority has passed the order in response to the order of  the higher authority. The higher  authority has reviewed the selection and appointing authority has passed the termination order  as a consequence thereof. Record of this case also  indicates that higher authority has reviewed the selection but no such order has been brought on record  to show as to what irregularity or illegality was committed in the selection. The power under Rule 6 is to be exercised by the appointing authority himself and not on the basis of decision of the higher  authority  who has no such power of  terminating the services particularly when no appeal is provided against an order passed under Rule 6..  The petitoner has tried to justify the order of termination by reasons  disclosed before the Tribunal and  in the writ petition by way of affidavit. Such reasons have been dealt with by the Tribunal and no error can be found in the findings recorded by the Tribunal. From the above discussions it is found that no grounds have been made out to justify the passing of the termination order nor any error has been shown in the impugned order passed by the Central Administrative Tribunal. The writ petition has no force and is therefore, dismissed. No order is passed as to costs.

Dt. 20.4.2006

Naim


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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