JUDGMENT B.S. Chauhan, J.
1. This writ petition has been filed against the judgment and order dated 13.01.2004 passed by the Central Administrative Tribunal, Allahabad Bench allowing the Original application of respondent no.4, Saroj Mishra for appointment on the post of EDBPM, Kumar Patti, Jaunpur.
2. The facts and circumstances giving rise to this case are that the post of Extra Departmental Branch Post Master (in short 'EDBPM'), Kumar Patti, Jaunpur fell vacant on 30.11.1997 on retirement of regular incumbent. Names were requisitioned from the Employment Exchange on 03.11.1997 to consider the claim of eligible candidates for the post. Four names had been sent including the name of the petitioner and respondent no.4. Appointment letter had been issued to the petitioner on 02.12.1998 which was challenged by the respondent no.4 before the Tribunal and the same has been allowed. Hence the present petition.
3. The present petitioner was not represented before the Tribunal as none appeared on her behalf when the matter was taken up, though the list had been revised. Learned counsel for the petitioner could not furnish any explanation, whatsoever, as under what circumstances the petitioner remained unrepresented before the Tribunal; why the petitioner could not move any application for recalling the order if there was "sufficient cause" for her counsel's non-appearance; why the petitioner could not send any application to the Bar Council against her lawyer; and under what circumstances this Court has been approached without furnishing the explanation for her non-representation before the Tribunal.
4. In fact the Tribunal has allowed the claim petition of the respondent no.4 on the ground that inter se merit had to be examined and the respondent no.4 had secured 55.5 percent marks in High School Examination while the present petitioner secured only 49 percent marks. As the respondent no.4 was much higher in merit than petitioner, the order of appointment was quashed.
5. In the instant case, respondent no.4 was not appointed as not having entry in the revenue record of the property purchased by her prior to filling of her application form.
6. While deciding a similar issue in Suman Verma v. Union of India and Ors., (2004) 12 SCC 57, the Apex Court placed reliance upon the letter of D.G. Post No. 17497/90 EDA Training dated 10.05.1991 which stipulated as under:-
"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 allowances."
7. The Hon'ble Supreme Court held that the candidate who secured more marks should be offered appointment, if he is otherwise found eligible.
8. The law permits recognition of the merit of every eligible candidate and no person can be deprived or discriminated on the basis of income or property held by him.
9. In Indra Sawhney etc. etc. v. Union of India and Ors., , the Hon'ble Supreme Court held as under:
"It may not be permissible to debar a citizen from being considered for appointment to an office under the State solely on the basis of his income or property holding. Since the employment under the State is really conceived to serve the people (that it may also be source of livelihood his secondary), no such bar can be created. Any such bar would be inconsistent with the guarantee of equal opportunity held out by clause (1) of Article 16."
10. Therefore, in case the petitioner, if holds more immovable property than respondent no.4, that cannot be a ground of discrimination or consideration/preference for making the appointment on the post. In such a case, adequate means of living may be, to some extent, necessary for the purpose of security considering the nature of the job but it cannot be a ground for discrimination or preference nor it can be an absolute condition for the appointment on such post. There is nothing on record to show that possession of adequate means of livelihood is an absolute condition for making appointment on the post of EDBPM. Petitioner failed to produce the guidelines/circular etc. proving for the contrary.
11. We find no force in the submission made by learned counsel for the petitioner that the property purchased by respondent no.4 could not be taken as mutation is not relevant for determining the title. Once there has been a registered sale deed of the immovable property in favour of the respondent no.4 prior to the date of submission of her application form, the said property is to be taken into consideration ignoring the requirement of mutation.
12. In Nirman Singh v. Lal Rudra Pratap Narain Singh Thakur and Ors., AIR 1926 PC 100, the Privy Council placed reliance on the judgment in Corea v. Appu Hamy, 1912 Appeal Cases 230, and observed as under:-
"(Mutation proceedings) are much more in the nature of fiscal inquiries instituted in the interests of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with the greater confidence that the revenue for it will be paid. It is little less than a travesty of judicial proceedings to regard the (mutation) orders as judicial determinations expelling proprio vigore individual from any proprietary right or interest he claims in immovable property."
13. In Smt. Sawarani v. Inder Kaur, , the Hon'ble Apex Court held as under-
"Mutation of a property in the revenue record does not create or extinguish title, nor has it any presumptive value of title. It only enables the person, in whose favour the mutation is entered, to pay the land revenue in question."
14. Similar view has been reiterated by the Hon'ble Supreme Court in Balwant Singh and Anr. v. Daulat Singh and Ors., ; and Suman Verma (supra).
15. Thus, the submission in this respect is misconceived and not worth examination as mutation entry does not confer right to title to property. Owning the agricultural property and getting the name entered in the revenue record are two distinct things.
16. We find no force in the submissions made by learned counsel for the petitioner that the petitioner being handicapped, had been appointed giving preference, though fairly admitted that she had not been appointed under the quota reserved for handicapped person. The concept of preference comes only if two candidates are otherwise equal on merit. (Vide Govt. of Andhra Pradesh v. P. Dilip Kumar and Anr., ; Executive Officer v. E. Tirupalu and Ors. and Ors., ; and Secretary, A.P. Public Service Commission v. Y.V.V.R. Srinivasulu and Ors., .
17. In view of the above, the Tribunal has rightly held that merit of the applicant is of paramount importance. The adequate means of livelihood is not a ground for giving preference to the petitioner. It is not even the case of the petitioner that respondent no.4 does not have adequate means of livelihood. Petitioner had not been appointed in the reserved quota for handicapped. Averment that as mutation had not been there in favour of respondent no.4 in respect of property purchased by her prior to the date of submission of the application form could not be taken into account, is preposterous.
18. We do not find any force in the submissions made by learned counsel for the petitioner. Petition is accordingly dismissed.