T. Jayakumar vs A. Gopu & Anr

T. Jayakumar ... Appellant

Vs.

A. Gopu & Anr. ... Respondents

JUDGMENT

AFTAB ALAM,J.

1. Leave granted

2. A little lapse by the respondent authority (Respondent no.2 before

this court) coupled with a somewhat unwarranted interference by the 2

Central Administrative Tribunal, Madras Bench, that was affirmed by the

Madras High Court has led to a situation where this court is faced with the

competing rights of the appellant and respondent no.1.

3. The matter in controversy is the appointment as Extra Departmental

Branch Post Master of Kadambadi village. The concerned authority issued a

notice for filling up the position on 22 December 1999. The last date for

receipt of applications was 5 January 2000. Respondent no.1 submitted his

application that was received within time on 4-1-2000. On this application,

however, he omitted to put his signature. Realising his mistake he sent

another application duly filled-up and signed by him on 4 January 2000

with the request that the second application may be treated as part of the

first one. The second application sent by respondent no.1 was received by

the authorities after 5 January 2000, the last date for submission of

applications. The concerned authorities called three candidates for

interview, including the first respondent, but in the end it was the appellant

who was selected and appointed as EDBPM, village Kadambadi.

4. Respondent no.1 challenged the selection and appointment of the

appellant before the Tribunal in O.A.no.346/2000. It was submitted on his

behalf that he was better qualified than the appellant since in the SSLC

examination he secured 272/500 marks compared to 269/500 by the 3

appellant. He also owned a big house and sufficient agricultural land in the

village. Hence, the action of the respondent authority in selecting the

appellant for appointment in preference to him was quite bad and

unreasonable. On behalf of the respondent authority it was stated that the

application of respondent no.1 that was received within time was invalid as

it did not bear his signature and his second application was received after

the last date for submission of applications. That being the position his

candidature was not acceptable.

5. The Tribunal did not accept the plea taken by the respondent

authority. It upheld the claim of Respondent no.1 and by judgment and

order dated 23 April 2001 allowed the OA and directed the concerned

authority to accept his application as received within time and to consider

his case for appointment as EDBPM.

6. The judgment and order passed by Tribunal was sought to be

challenged by the appellant before the Madras High Court in WP no. 11229

of 2001. Apparently at the time of admission of the writ petition the High

Court stayed the operation of the order of Tribunal but finally the writ

petition was dismissed by judgment and order dated 1 February 2005.

Against the High Court order the appellant filed the SLP giving rise to this

appeal. In the SLP on 6 May 2005 this Court passed an order for 4

maintaining status quo as obtaining on that date. As a result of the interim

orders passed by the High Court and by this Court the appellant has been

able to continue in service since his appointment on 9 February 2000.

Another fact we are unable to ignore is that now the age of the appellant is

thirty eight years; in other words he has crossed the age bar for government

employment.

7. Coming now to the orders passed by the Tribunal and the High Court.

Both the tribunal and the High Court interfered in favour of respondent no.

1 but for slightly different reasons. The Tribunal did not take the view that

the first application submitted by the first respondent was valid even though

it was unsigned or that the second application cured the omission and the

lacuna in the first application or even that the second application should

have been accepted even though it was received beyond time. What seems

to have weighed with the Tribunal is that respondent no.1 was called for

interview along with the other two candidates whose applications were fully

in order and were received in time. The Tribunal took the view that having

called respondent no. 1 for interview it was no longer open to the concerned

authority to exclude him from consideration on the plea that his application

was not in order/was received beyond time. It appears that the Tribunal 5

summoned the relevant office record and found that on 9 February 2000 the

concerned authority made the following note:

"In response to the Local notification 7 applications received. Among them the applications received from R. Lakshmi (101c). R. Durairaj (104C). T.Selvakumar(105C) and S.Durairaj (106C) after the last date fixed on 05.01.2000 are not considered.

Only three candidates who have applied for the post within the last date fixed are brought into the tabular statement."

8. In light of the note the Tribunal came to observe and hold as follows:

"Having treated the application of the applicant as an application received within the last date, the first respondent cannot go back and say that his application cannot be considered as the same was received after the expiry of the last date. The action of the first respondent in treating the application of the applicant as one submitted within the last date in this note shows that the original application received on 04.01.2000 has been treated as an application submitted in time in view of the subsequent application duly signed by the applicant. The action of the first respondent in not selecting the applicant on the ground of delay in submitting the application is not just and proper under the given circumstances."

The High Court seems to have taken a slightly different view. It has

proceeded on the basis that the concerned authority ought to have accepted 6

the application of respondent no. 1 as deemed to have been received within

time. The copy of the High Court order supplied to us is full of errors

(presumably typographical), so much so that in parts it is almost

unintelligible. But the view taken by the High Court can be gathered from

paragraph 7 of the judgment that reads as follows

"No doubt, the first application of the petitioner (sic, respondent no.1) has become invalid as there is no signature, however, when the first respondent came to know of his fault, she (sic) sent another one application with signature and with a requisition on 04.01.2000, i.e., within the expiry of the last date, it should have been treated as part and parcel of the first application or added with the first application as the first respondent send the second application a requisition to the second respondent within the time stipulated. When that was not done by the second respondent and rejected the application of the first respondent, we are of the view that the first respondent sent his application in time and it cannot be rejected and therefore the conducting interview and it cannot be rejected and therefore, the conducting of interview and appointment of the petitioner as EDBPM without the first respondent, is arbitrary and against the principles of natural justice."

(emphasis added)

9. We are unable to share either the view taken by the Tribunal or agree

with the approach of the High Court.

7

10. We are not aware any principle of law under which once a candidate

is allowed participation in the selection process the selection authority is

precluded from examining whether his application was complete, in order,

within time or otherwise acceptable. A defect in the application form that

renders the candidate ineligible might be overlooked in the initial screening

and as a result he may be called for interview and may get a chance to take

part in selection process but that alone does not mean that the candidate

cannot be held ineligible for selection at a later stage once the defect in the

application comes to light. It is surely open to the Tribunal to examine

whether the reason assigned by the selection authority for holding a

candidate ineligible for selection was valid or unreasonable and arbitrary. If

the reason for excluding a candidate from the selection process is found to

be unreasonable or arbitrary the Tribunal may certainly intervene but if the

reason itself is valid the tribunal cannot interfere simply because the

candidate was allowed participation in the selection process by being called

for interview. The principle of estoppel has no application in such a case.

11. We are equally unable to appreciate the approach of the High Court.

In the facts of the case it cannot be said that the decision of the concerned

authority not to accept any of the two applications of respondent no. 1, the

first being invalid for want of signature and the other being beyond time, 8

was totally unreasonable and arbitrary. As a matter of fact the High Court

has not come to any such finding. And yet the High Court observed that the

second application ought to have been treated as `part and parcel' of the first

application and thus substituted its own view in the matter for the view

taken by the respondent authority. Such an approach might have been

permissible for the departmental appellate authority (provided there was

one) but it was plainly beyond the scope of judicial review.

12. In the facts of the case we are satisfied that the concerned authority

had not exercised its discretion unreasonably and arbitrarily in rejecting

both the applications submitted by respondent no.1 and any interference in

the matter was hardly called for by the Tribunal or the High Court.

13. On a careful consideration of the rival contentions and the materials on

record we are unable to sustain the orders of the High Court and the

Tribunal. The two orders are, accordingly, set aside.

14. This leaves us with respondent no.1 who is hopefully pursuing the

matter for over eight years. The Tribunal and the High Court by interfering

in his favour naturally gave him hope and expectations that he would be

harbouring for eight years. We also cannot overlook the fact he was

excluded from consideration simply because he inadvertently omitted to put

his signature on his application form. Having regard to the special facts of 9

the case the concerned postal authorities are directed to find out a suitable

vacant position against which respondent no.1 may be adjusted. In case no

suitable post is available at present he should be accommodated in the next

vacancy of EDBPM arising in future.

15. This appeal is allowed subject to aforesaid observations and

directions.

.....................

.............J. [Tarun Chatterjee]

...........................

.......J. [Aftab Alam]

New Delhi, September 22, 2008.