Ghulam HussaIn Malik Vs. Union of India and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/900025
SubjectService
CourtJammu and Kashmir High Court
Decided OnOct-19-2000
Case NumberSWP No. 256/1997
Judge G.D. Sharma, J.
ActsConstitution of India - Article 16
AppellantGhulam HussaIn Malik
RespondentUnion of India and ors.
Appellant Advocate M.A. Qayoom, Adv.
Respondent Advocate S.A. Naik, Additional Central Govt. Standing Counsel
Excerpt:
- 1. vide order no. b/edda/b. lamer dated 19.1.1980, the petitioner was appointed as extra departmental delivery agent (edda). he took over the charge on 2.2.1980 as edda brinel lamer. in terms of order dated 19.7.1991, he on 25.7.91 assumed the charge as branch master, brinal lamer form smt. maryama banoo. on 28.11.1991, he made application to the sr. superintendent of post offices, kashmir division, srinagar requesting him to regularise his services as branch post master brinel lamer in pursuance to d. g. posts letter no. 43-27/85-pen. (edc & trg.) dated: 12.9.1988. the application was sent through registered post (annexure-d).2. instead of deciding the above said representation within reasonable time, the sr. superintendent of post offices, srinagar divn. vide his letter no. a-1/29(b)/vol-ii/45 dated 9/10/1995 demanded a panel of five candidates from the district employment officer, anantnag to fill up the post of edbpm (b. lamer). the eligibility criteria was prescribed in the letter. a similar request had been made by sending a copy of the letter to respondent no. 4 (assistant superintendent of post offices anantnag kashmir) and in response he sent his reply vide letter no. a/b. lamer dated 17.11.1995 to respondent no. 3 wherein the names of eight persons were mentioned for the appointment against the post. the name of the petitioner had figured at s. no. 8, respondent no. 3 (sr. superintendent post offices, srinagar) vide his memo no. pf/bl/27 dated 6.1.1997 appointed respondent no. 5 as edbpm briner lamer khanabal (annexure-e). through the medium of this writ petition this order has been challenged by the petitioner on the following grounds:i) the petitioner possessed the required eligibility for the appointment against the post of extra departmental branch post master (edbmp) and had submitted the application on 28.11.1991 (annexure-d) for regularising him.this he had done in response to d. g. letter dated: 12.9.1988. respondent no. 3 did not decide the application of the petitioner and allowed him to function against the post. appointment of respondent no. 5 to the exclusion of the petitioner is detrimental to the legal right of the the latter.ii) requisition made by respondent no. 3 vide his no. a-1/29 (b) /vol-ii / 45 dated 5/9-10/95 from the district employment officer, employment exchange anantnag, copy whereof was sent to respondent no. 4 whereby panel of eligible candidates was required militated against the legal right of the petitioner accrued in his favour vide d.g. posts letter no. 43-27/85-pen, (edc & trg.) dated 12.09.1988.iii) respondent no. 5 had not figured in the recommendation made by respondent no. 4 to respondent no. 3 and despite this his appointment had been made.iv). the petitioner assumed the charge of post of edbmp b. lamer inpursuance of letter dated: 19.7.1991 issued by respondent no. 4 on 25.7.91 and on that date he was eligible for the appointment against the post of edbpm. the petitioner had in time made the representation (on 28.11.1991 videannexure-d). respondents did not decide the representation of the petitioner but allowed him to continue work against the post. the changed eligibility criteria latter in time visits the right of the petitioner with evil and panel consequences.3. in the counter respondents (no. 1 to 4) raised preliminary objections about the maintainability of the writ petition by stating that no legal right of the petitioner has been infringed. on facts it is pleaded that the petitioner has been holding the charge of edbpm of village b. lame, in addition to his own duties since 25.7.1991. this post had to be filled up in accordance with the mode provided under p & t extra departmental delivery agents service & conduct rules 1964. respondents accordingly made requisition from employment exchange anantnag to sponsor the names for making a selection against this post and amongst sponsored names respondent no. 5 was selected. it is denied that representation dated 28.11.1991 (annexure-d) was received by respondent no. 3. it is pleaded that petitioner himself was in-charge of the concerned branch post office and certificate of posting (annexure-d) is fake. respondent no. 4 was not appointing authority for the post of edbpm but he can make the stop gap arrangement to run the current duties of edbpm. the petitioner had worked against the post in the stop-gap arrangement. it is admitted that on 1.6.1991, the necessity arose for fulfilling the post in question and the petitioner was engaged in stop-gap-arrangement on 25.7.91. qualification for the appointment of the post at that time was middle standard. subsequently in the year 1995 it was changed and eligibility qualification was raised upto matric pass. the post could not be advertised because of the prevailing abnormal law and order conditions in the valley. petitioner is not eligible to be appointed as debpm as he is not matriculate. the petitioner is already holding the post of edda which carries more pay than edbpm. the name of petitioner was not sponsored by employment exchange. the petitioner did not challenge requisition letter when it was issued in the year 1995. the selection was made subsequently in the year 1997. petitioner was not eligible as per the letter of d. g. posts dated 12.9.1988 as he was not a resident of that area.4. heard the arguments.5. mr. qayoom has reiterated the grounds of petition and stressed that on 25.7.91, he was eligible to hold the post of edbpm and in terms of d. g. posts letter no. 43-27/85- pen, (edc & trg.) dated 12.1988 he was not required to apply for his appointment because above stated letter of d.g. posts gave him right of being considered for appointment against the post in question. the appointment of the petitioner was made by respondent no. 4 in pursuance of the above said letter. the plea raised by the respondents that postal certificate (annexure-d1) is fake and is not supported by any documentary evidence. the respondents could produced the corresponding record from the concerned post office that this registered letter was not entered in the official record. the letter in question is official record and it carries presumption of correctness. since the petitioner was holding the post so it could not be referred to employment exchange for a panel of eligible candidates.6. in rebuttal it has been contended by the counsel for the respondents that petitioner had participated in the selection process and he cannot now challenge his non-selection at a belated stage.7. the arguments advanced at the bar have been considered. the engagement of the petitioner was made on 25.7.91 in pursuance to d.g. posts letter no. 43-27/85-pen, (edc & trg.) dated 12.9.1988. in the letter it was mentioned that when a e.d.post falls vacant in the same office or in any office in the same place and if one of existing edas prefers to work against that post, he may be allowed to be appointed against that vacant post without coming through the employment exchange provided he is suitable for the other post and fulfills all the other conditions. it is an admitted fact that in the year 1991 the educational qualification was middle standard. the petitioner had vested right for the appointment without coming through the employment exchange and respondents had to judge his suitability for the other post. the petitioner applied through registered post on 28.11.1991 (annexure d & d-1) to adjuge his suitability but no decision was given on that application by respondent no. 3 till the year 1995 when process was started for getting the panels of suitable candidates. it is thus established that respondents had failed in their duty to adjudge the suitability of the petitioner in terms of the letter of d. g. posts (bearing no. 43-27/85-pen, (dec & trg.)) dated 12.9.88. this letter was in accordance with the rules contained under p&t; extra departmental delivery agents service and conduct rules 1964. in other words, the legal right of the petitioner for being considered against appointment was scuttled without any reason or explanation and he cannot be denied the right of appointment after getting work from him for so many years. the petitioner has a legal right against the appointment as branch post master briner lamer.8. in this view of the matter, the writ petition is accepted and respondents 1 to 4 are directed to appoint the petitioner against that post from the date he was so eligible. however, in case respondent no. 5 stands duly appointed he may be adjusted against some other post in accordance with the relevant rules. the petitioner is entitled to the salary from the date of appointment.
Judgment:

1. Vide order No. B/EDDA/B. Lamer dated 19.1.1980, the petitioner was appointed as Extra Departmental Delivery Agent (EDDA). He took over the charge on 2.2.1980 as EDDA Brinel Lamer. In terms of order dated 19.7.1991, he on 25.7.91 assumed the charge as Branch Master, Brinal Lamer form Smt. Maryama Banoo. On 28.11.1991, he made application to the Sr. Superintendent of Post Offices, Kashmir Division, Srinagar requesting him to regularise his services as Branch Post Master Brinel Lamer in pursuance to D. G. Posts letter No. 43-27/85-Pen. (EDC & Trg.) dated: 12.9.1988. The application was sent through registered post (Annexure-D).

2. Instead of deciding the above said representation within reasonable time, the Sr. Superintendent of Post Offices, Srinagar Divn. vide his letter No. A-1/29(B)/Vol-II/45 dated 9/10/1995 demanded a panel of five candidates from the District Employment Officer, Anantnag to fill up the post of EDBPM (B. Lamer). The eligibility criteria was prescribed in the letter. A similar request had been made by sending a copy of the letter to respondent No. 4 (Assistant Superintendent of Post offices Anantnag Kashmir) and in response he sent his reply vide letter No. A/B. Lamer dated 17.11.1995 to respondent No. 3 wherein the names of eight persons were mentioned for the appointment against the post. The name of the petitioner had figured at S. No. 8, Respondent No. 3 (Sr. superintendent Post Offices, Srinagar) vide his memo No. PF/BL/27 dated 6.1.1997 appointed respondent No. 5 as EDBPM Briner Lamer Khanabal (Annexure-E). Through the medium of this writ petition this order has been challenged by the Petitioner on the following grounds:

i) The Petitioner possessed the required eligibility for the appointment against the post of Extra Departmental Branch Post Master (EDBMP) and had submitted the application on 28.11.1991 (Annexure-D) for regularising him.This he had done in response to D. G. Letter dated: 12.9.1988. Respondent No. 3 did not decide the application of the Petitioner and allowed him to function against the post. Appointment of respondent No. 5 to the exclusion of the petitioner is detrimental to the legal right of the the latter.

ii) Requisition made by respondent No. 3 vide his No. A-1/29 (B) /Vol-II / 45 dated 5/9-10/95 from the District Employment Officer, Employment Exchange Anantnag, copy whereof was sent to respondent No. 4 whereby panel of eligible candidates was required militated against the legal right of the petitioner accrued in his favour vide D.G. Posts letter No. 43-27/85-Pen, (EDC & Trg.) dated 12.09.1988.

iii) Respondent No. 5 had not figured in the recommendation made by respondent No. 4 to respondent No. 3 and despite this his appointment had been made.

iv). The Petitioner assumed the charge of post of EDBMP B. Lamer inpursuance of letter dated: 19.7.1991 issued by respondent No. 4 on 25.7.91 and on that date he was eligible for the appointment against the post of EDBPM. The petitioner had in time made the representation (on 28.11.1991 videAnnexure-D). Respondents did not decide the representation of the petitioner but allowed him to continue work against the post. The changed eligibility criteria latter in time visits the right of the petitioner with evil and panel consequences.

3. In the counter respondents (no. 1 to 4) raised preliminary objections about the maintainability of the writ petition by stating that no legal right of the petitioner has been infringed. On facts it is pleaded that the petitioner has been holding the charge of EDBPM of Village B. Lame, in addition to his own duties since 25.7.1991. This post had to be filled up in accordance with the mode provided under P & T Extra Departmental Delivery Agents Service & Conduct Rules 1964. Respondents accordingly made requisition from employment Exchange Anantnag to sponsor the names for making a selection against this post and amongst sponsored names respondent No. 5 was selected. It is denied that representation dated 28.11.1991 (Annexure-D) was received by respondent No. 3. It is pleaded that petitioner himself was In-charge of the concerned branch Post Office and certificate of posting (Annexure-D) is fake. Respondent No. 4 was not appointing authority for the post of EDBPM but he can make the stop gap arrangement to run the current duties of EDBPM. The Petitioner had worked against the post in the stop-gap arrangement. It is admitted that on 1.6.1991, the necessity arose for fulfilling the post in question and the petitioner was engaged in stop-gap-arrangement on 25.7.91. Qualification for the appointment of the post at that time was middle standard. Subsequently in the year 1995 it was changed and eligibility qualification was raised upto matric pass. The post could not be advertised because of the prevailing abnormal law and order conditions in the valley. Petitioner is not eligible to be appointed as DEBPM as he is not matriculate. The petitioner is already holding the post of EDDA which carries more pay than EDBPM. The name of petitioner was not sponsored by Employment Exchange. The petitioner did not challenge requisition letter when it was issued in the year 1995. The selection was made subsequently in the year 1997. Petitioner was not eligible as per the letter of D. G. Posts dated 12.9.1988 as he was not a resident of that area.

4. Heard the arguments.

5. Mr. Qayoom has reiterated the grounds of petition and stressed that on 25.7.91, he was eligible to hold the post of EDBPM and in terms of D. G. Posts letter No. 43-27/85- Pen, (EDC & Trg.) dated 12.1988 he was not required to apply for his appointment because above stated letter of D.G. Posts gave him right of being considered for appointment against the post in question. The appointment of the petitioner was made by respondent No. 4 in pursuance of the above said letter. The plea raised by the respondents that postal certificate (Annexure-D1) is fake and is not supported by any documentary evidence. The respondents could produced the corresponding record from the concerned post office that this registered letter was not entered in the official record. The letter in question is official record and it carries presumption of correctness. Since the petitioner was holding the post so it could not be referred to employment exchange for a panel of eligible candidates.

6. In rebuttal it has been contended by the counsel for the respondents that petitioner had participated in the selection process and he cannot now challenge his non-selection at a belated stage.

7. The arguments advanced at the bar have been considered. The engagement of the petitioner was made on 25.7.91 in pursuance to D.G. Posts letter No. 43-27/85-Pen, (EDC & Trg.) dated 12.9.1988. In the letter it was mentioned that when a E.D.Post falls vacant in the same office or in any office in the same place and if one of existing EDAs prefers to work against that post, he may be allowed to be appointed against that vacant post without coming through the Employment Exchange provided he is suitable for the other post and fulfills all the other conditions. It is an admitted fact that in the year 1991 the educational qualification was middle standard. The petitioner had vested right for the appointment without coming through the Employment Exchange and respondents had to judge his suitability for the other post. The petitioner applied through registered post on 28.11.1991 (Annexure D & D-1) to adjuge his suitability but no decision was given on that application by respondent No. 3 till the year 1995 when process was started for getting the panels of suitable candidates. It is thus established that respondents had failed in their duty to adjudge the suitability of the petitioner in terms of the letter of D. G. Posts (bearing No. 43-27/85-Pen, (DEC & Trg.)) dated 12.9.88. This letter was in accordance with the rules contained under P&T; Extra Departmental Delivery Agents Service and Conduct Rules 1964. In other words, the legal right of the petitioner for being considered against appointment was scuttled without any reason or explanation and he cannot be denied the right of appointment after getting work from him for so many years. The petitioner has a legal right against the appointment as Branch Post Master Briner Lamer.

8. In this view of the matter, the writ petition is accepted and respondents 1 to 4 are directed to appoint the petitioner against that post from the date he was so eligible. However, in case respondent No. 5 stands duly appointed he may be adjusted against some other post in accordance with the relevant rules. The petitioner is entitled to the salary from the date of appointment.