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Service Law : Appointment-Extra Departmental Branch Post Master (EDBPM)- Qualifications for : (i) passing of Matriculation Examination and (ii) possession of agricultural land on the last date of submission of application form-A candidate with more marks in the Matriculation Examination than a persan appointed to the post-The said candidate also possessed agricultural land on the last date of submission of application form-But the mutation entry could only be effected 10 days later-However, the said candidate was not appointed to the post of EDBPM-But the CAT directed appointment of the said candidate-High Court affirmed this decision-Correctness of- Held: Owning of agricultural land and getting the same entered in Revenue Records are two different and distinct things-The said candidate became owner of agricultural land before the last date of submission of application form and, therefore, she was eligible-Moreover, she was more meritorious than the person appointed as EDBPM since she had obtained more marks- Hence, authorities not justified in appointing some other person by ignoring the case of the said candidate-Hence, directions of CA T and High Court not interfered with. Appointment-Illegal appointment- Quashing of-An employee had been working on a post for a period of about 8 years-Effect of-An aggrieved candidate approached competent Tribunal immediately after issuance of order in favour of the other employee-Due to pendency of the matter before Tribunal the said candidate could not get the case decided and the matter finally adjudicated-Held : Case of the other employee to be considered for appointment in nearby vicinity if otherwise she is fit-Delay in disposal of case should not cause prejudice to the aggrieved candidate who had approached the Tribunal in time-Hence, CAT and High Court rightly set aside the appointment of the other employee and directed appointment of the aggrieved candidate. Evidence Act, 1872 : Section 35-Entry in Public record-Mutation entry in revenue records- Right or title to property-Held: It does not confer right or title to property- Owning of land and getting the same entered in revenue records are two different and distinct things-Mutation entry neither creates nor extinguishes title or ownership. The appellant was appointed to the post of Extra Departmental Branch Post master (EDBPM). The qualifications for appointment as EDBPM were passing of Matriculation Examination and possession of agricultural land on the last date of submission of the application form. The appellant fulfilled both the qualifications and was, therefore, appointed to the said post and she had been working in the said post for a period of almost 8 years. However, respondent No. 6 filed an application before the Central Administrative Tribunal challenging the appointment of the appellant on the ground that she had obtained more marks in the Matriculation Examination than the appellant. The appellant also contended that she had become the owner of an agricultural land on the basis of a gift deed before the last date of submission of the application form but the mutation entry could be effected only 10 days later. CAT allowed the application. High Court affirmed the said decision. Hence the appeal.

City of Patna, on the River Ganges, 19th century.

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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 
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.

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

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