Ahsanullah Khan vs Union Of India & Ors

Om Prakash VII, Member (J)

The present O.A has been filed by the applicant under section 19 of Administrative Tribunal Act, 1985 for seeking direction to quash the impugned notice Annexure No. A-1 and to appoint the applicant on the vacant post of GDS MD/MC, Siswa, Raja being at the highest merit amongst the candidate after cancellation of candidature of Sri M.K. Yadav from the Annexure No. A-5.

The facts in brief are that in pursuance of the advertisement for the post of GDS MD/MC, Siswa Raja Branch Post Office, 16 candidates had applied for the post. One Sri Mahendra Kumar Yadav was selected on the post being obtained 417/600 i.e. 69% marks in the High School examination. Later on it was found that Sri Mahendra Kumar Yadav had submitted forged marksheet of High School and on that basis he had got appointment. His actual marks was 278/600. The marks of the applicant in the High School was 345/500 i.e. 69%. After getting evidence under RTI, the applicant moved application dated 14.5.2008 to respondent No. 1 to 3 and Dy. D.G. (Vigilance) O/o of DG Posts, New Delhi. Respondents enquired into the matter ad got the facts submitted by the applicant correct. After giving opportunity of hearing to Sri Mahendra Kumar Yadav, his appointment was cancelled on 19.8.2008 and he was relieved from the post and adhoc arrangement was made to manage the work of the post office but the respondents did not give the appointment to the applicant. Applicant submitted representation dated 29.8.2008 to the respondents for appointment but no action has been taken. Vide letter dated 5.1.2009, the respondents have requested the Employment Exchange for sending names to fill up the vacancy in question. Hence the applicant has filed the present O.A.

Per contra, Counter Affidavit has been filed by the learned counsel for the respondents, stating therein that the post of Gramin Dak Seval Mail Delivery /Mail Carrier, Siswa Raja Branch was fell vacant due to retirement of Shri Raj Kishore Das on 31.1.2006. The vacancy was notified. The post was unreserved i.e. for O.C. No list of nomination was received from the employment exchange. 16 candidates had applied for the post directly from open market. That as per the Gramin Dak Sewak Recruitment rules, the meritorious candidate on the basis of marks secured in High School Examination should be appointed. The details of five meritorious candidate on the basis of marks obtained in High School Examination are as under:-

S.No.

Name of candidate

Marks obtained

in High School examination and percentage of mark

Income derived from other sources

1

Sri Mahendra Kumar Yadav

417/600-69%

12000 p.m.

2

Sri Ahsanullah Khan

345/500=69%

6000 p.m.

3

Sri Anuj Kumar Patel

383/600=63.83%

13000 p.m.

4

Sri Rajendra Kumar

385/600=64.16%

2700 p.m

5

Sri Akhilesh Kumar Tripathi

317/500=63.4%

3000 p.m.

That after receiving the public complaint against the mark sheet of Mahendra Kumar Yadav, the department reviewed the appointment of GDSMD/MC, Siswa, Raja and had issued notice to Mahendra Kumar Yadav on 8.8.2008 but he did not give any satisfactory reply in regard to marks of 417/600, which was found forged in recertification . Thereafter, Sub Divisional Inspector, Posts vide letter dated 18.8.2008 cancelled the appointment of Sri Mahendra Kumar Yadav and was relieved from the post. Under the provision of departmental letter No. 19-15/2002-GDS dated 9.5.2003, the deponent directed to Sub Divisional Inspector of Posts, Maharajganj to initiae the appointment of GDSMD/MC, Siswa afresh. Accordingly, appointment process has again been initiated and applicant is also one of the candidate for appointment on the post.

Heard the learned counsel for the parties.

Submission of the learned counsel for the applicant is that the name of the applicant was found at Sl. No. 2 of the meritorious candidate and after cancellation of appointment of Sri Mahendra Kumar Yadav, applicant at Sl. No.1, on the basis of forged documents, he should be given the appointment on post and denial of appointment of the applicant and issuing fresh advertisement is void and ultravirus. It is further submitted that the post is still vacated but in spite of cancellation of appointment of applicant No. 2, respondents are not providing the appointment to the applicant, who is at Sl. NO. 2 of the merit list with 69% of marks. It is further submitted that proceeding further with the process of issuing the fresh notice dated 5.1.2009, is depriving the applicant of his fundamental right. It is further submitted that representation moved by the applicant has not been decided so far. No panel has been prepared by the respondents. Learned counsel for the applicant has placed reliance on the following case laws:-

i) Full Bench Judgment in O.A. No. 297/2000 decided on 24.11.2003 by CAT Jodhpur Bench) (Rana Ram Vs. UOI and others);

ii) O.A. No. 285 of 2005 decided on 19.5.2010 (Jokhai Prasad Vs. UOI and others) (CAT- Allahabad Bench)

Learned counsel for the respondents argued that in pursuance of the notification dated 27.2.2007 for the post of GDSMD/MC, 16 candidates had applied and Sri Mahendra Kumar Yadav having higher marks (69%) in High School was given appointment vide letter dated 7.7.2007, but after receiving complaint against the mark sheet of Mahendra Kumar Yadav, the department reviewed the appointment of GDSMD/MC, Siswa, Raja and had issued notice to Mahendra Kumar Yadav on 8.8.2008 but when he did not give any satisfactory reply, Sub Divisional Inspector, Posts vide letter dated 18.8.2008 cancelled the appointment of Sri Mahendra Kumar Yadav and relieved him from post. Under the provision of departmental letter No. 19-15/2002-GDS dated 9.5.2003, the deponent directed to Sub Divisional Inspector of Posts, Maharajganj to initiate the appointment of GDSMD/MC, Siswa afresh. Accordingly, appointment process has again been initiated and applicant is also one of the candidate for appointment on the post. Hence there is no illegality in the impugned notice dated 5.1.2009 and O.A. is liable to be dismissed.

We have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record.

From perusal of the record, it is evident that post in question was advertised on 27.2.2007, appointment was given to Sri Mahendra Kumar Yadav on 7.7.2007. His appointment was cancelled on 18.8.2008 on the ground of submitting forged mark sheet and got appointment on that basis. The appointment of Sri Mahendra Kumar Yadav was cancelled after more than one year and as per the settled legal position, life time of waiting list is only one year, which in the instant case had expired on 6.7.2008.

In the case of Rana Ram Vs. UOI and others (supra), the questions before the full bench were (i) Whether it is necessary for the candidates applying for the post of EDBPM to submit the proof of income/ property along with their applications? (ii) Whether the proof of income/proper qualification may be supplied by the candidates upto the date of interview?’ (iii) Whether selections are to be made on the basis of marks obtained in the matriculation examination and thereafter, the person selected should be given time to submit the proof of income/property and in case he/she fails to submit the same within the stipulated date, whether the procedure should be repeated for the next best candidate and so on? and the full bench answered that the selections have to be made on the basis of the other qualifications minus the qualifications pertaining to immovable property. Thereafter, the person selected can be given reasonable time to submit proof of income/ property as per rules/ instructions on the subject and in case he fails to submit the same within a reasonable time, the offer can be given to the next eligible /selected candidate. The instant case is totally different from the full bench case because in the instant case, the appointment of the selected candidate was cancelled on the ground of submitting fake mark sheet after more than one year of his appointment. Therefore this case will not give any help to the applicant.

The case law of Jokhari Prasad Vs. UOI (supra) is also related to income from landed property and on that basis appointment was given to other person who has less in the merit and the Court considering the full bench decision referred above, allowed the O.A. and directed to give appointment to the applicant on the basis of merit. But in the instant case as stated above, appointment of Sri Mahendra Kumar Yadav was cancelled after more than one year of issuance of appointment letter and life time of waiting list of any examination is only one year as per the settled legal position.

Vide O.M. No.41019/18197-Estt(B) of Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training New Delhi, dated 13th June, 2000. DoP&T has clearly observed that the Fifth Central Pay Commission, in para 17.11 of its Report, has recommended that with a view to reduces delay in filling up of the posts, vacancies resulting from resignation or death of an incumbent within one year of his appointment should be filled immediately by the candidate from the reserve panel, if a fresh panel is not available by then. Such a vacancy should not be treated as a fresh vacancy. This recommendation has been examined in consultation with the UPSC and it has been decided that in future, where a selection has been made through UPSC, a request for nomination from the reserve list, if any, may be made to the UPSC in the event of occurrence of a vacancy caused by non-joining of the candidate within the stipulated time allowed for joining the post or where a candidate joins but he resigns or dies within a period of one year from the date of his joining, if a fresh panel is not available by then. Such a vacancy should not be treated as fresh vacancy.

From perusal of the O.M. dated 13.6.2000, it is clear that life time of waiting list is only one year whereas in the instant case, the appointment of selected candidate was cancelled after more than one year of his appointment hence after expiry of one year, applicant has no right for seeking appointment on the post. Therefore, O.A. lacks merit and deserves to be dismissed.

Accordingly, O.A. is dismissed.

There shall be no order as to costs.