Hon'ble Ashok Pal Singh,J.
(DELIVERED BY HON. MR. JUSTICE DEVI PRASAD SINGH)
1. Instant writ petition under Article 226 of the Constitution of India has been preferred against the judgment and order dated 4.11.2003 passed in Original Application No. 559 of 2002 by the Central Administrative Tribunal, Lucknow Bench, Lucknow ( in short hereinafter referred as Tribunal). The tribunal had allowed the Original Application preferred by respondent no. 4 challenging the petitioner's appointment on the post of Branch Post Master (in short hereinafter referred as BPM) being not holding requisite qualification. 2. Feeling aggrieved the petitioner has approached this court. Respondents invited applications for appointment on the post of BPM in Post Office Nanemau, District Sultanpur, U.P. The post of Gramin Dak Sevak Branch Post Master, Branch Nanemau District Sultanpur, U.P. fell vacant on 1.10.2001 on account of superannuation of earlier BPM. The vacancy was notified and circulated on 28.3.2002 by the Office of Superintendent of Post Office District Sultanpur U.P. While advertising the vacancy the eligibility qualification provided was High School or equivalent. The petitioner and the claimant respondent no. 4 applied in pursuance to notification dated 28.3.2002. The petitioner was selected and appointed on the post of BPM on 1.8.2002 and joined on 7.8.2002. Feeling aggrieved with the petitioner's appointment and after raising cause before the authorities, respondents no. 4 had preferred the Original Application before the Tribunal. The main question that cropped up before the Tribunal was whether the petitioner fulfill requisite qualification in terms of advertisement and rules for the post of BPM.? Admittedly, the petitioner has not passed High School from the High School Board of the State of U.P. but she has passed Poorva Madhyama from Sampurnanand Sanskrit Vishwavidyalaya, Varanasi. State of U.P. issued academic notification provided therein that Poorva Madhyama with English as well as Poorva Madhyama without English shall be equivalent to High School.
3. On the other hand, private respondents as well as petitioner had relied upon Office Memorandum dated 21.11.1990 issued by Department of Post and Telegraph which provides that for the purpose of equivalence of Poorva Madhyama with High School it shall be necessary that person concerned must have also passed the Poorva Madhyama with English. In case, Poorva Madhyama with English even as additional subject has not bee passed, then it shall not be equivalent to High School.
4. So far as argument advanced by learned counsel for the petitioner is concerned it is not disputed that petitioner had passed Poorva Madhyama without English (being failed in English). The brochure filed as Annexure-10 published by Sampurnanand Sanskrit Vishwavidyalaya, Varanasi contains extract of orders issued by Government which reveals that Poorva Madhyama with English shall be equivalent to High School examination regulated by U.P. Madhyamik Shiksha Parishad. The same brochure also provides that Poorva Madhyama without English shall also be equivalent to High School without attracting the U.P. Madhyamik Shiksha Parishad.
5. On the other hand, Office Memorandum dated 8.3.1991 issued by Additional Secretary, Department of Defence also reveals that Poorva Madhyama with English shall be equivalent to High School examination and Uttar Madhyma with English will be equivalent to Intermediate examination. While filing written statement before the tribunal and counter affidavit in this court the Union of India had relied upon Government of India's Office memo dated 21.11.1990 which provides that Poorva Madhyama examination may be considered equivalent to High School where same has been passed with English as a subject. It has further been stated that office memorandum issued by the Department of Personal and training are applicable to all Ministry including Postal Department hence in the event of any conflict with the subject it will have overriding effect. Dispute being related to central services the circular issued by the State Government giving any equivalence shall not be applicable.
6. Shri U.K.Srivastava, learned counsel appearing for petitioner had not disputed that though the petitioner had passed Poorva Madhyama in first class but she has not passed in English. The copy of letter sent by Deputy Registrar of the Sampoornanand University dated 28.7.2002 has been filed as Annexure-11 to the writ petition. The marksheet also shows that the petitioner has not passed in English. However, Deputy Registrar states that even if petitioner failed in English it shall have no relevance since marks of English being additional subject does not affect the candidates result.
7. There appears to be no hesitation to hold that the examination being related to Postal Department, the office Memorandum, circulars and orders issued by the Government of India Personal Department or the Postal Department shall be applicable to regulate the conditions of the employment for the post of Branch Post Master. Accordingly, Tribunal had rightly relied upon the office memorandum dated 21.11.1990 with the following observation to quote:-
"For equivalence, in Govt. service, Ministry of Communication is bound to follow the Notifications of DoPT unless the applicant is specifically excluded as per DoPT OM dated 21.11.1990 for the purposes of employment under the Central Government. As the BPM is a Central Govt. Post, the equivalence of Poorva Madhyma with High School, the condition precedent is with English and if a person has not passed the English even as an additional subject, the aforesaid qualification, though as per the University, would not effect the result of the examination, but it will not be equivalent to High School. In this view of the matter, as the respondent no. 4 has not qualified to be appointed, any appointment made would not vest any right on her to continue."
8. The post of Gramin Dak Sevak Branch Post Master should be filled up in terms of Government of India's circulars or orders. Equivalence is to be decided by the Government of India or the Department and not by State being not its subject.
9. In AIR 2003 SC 1241, Yogesh Kumar and others Vs. Government of NCT Delhi and others, Hon'ble Supreme Court declined to record a finding with regard to equivalence of degree merely because of existence of certain similarity in their working or eligibility.
10. In 1995 Supp (4) SCC 706, Harpal Kaur Chahal (Smt) Vs. Director, Punjab Instructions, Punjab and another, their Lordships of Hon'ble Supreme Court held that illegality once committed cannot be pleaded to legalise other illegal acts. Candidate not possessing the requisite qualification on the cut off date may acquire qualification at later stage is nonetheless ineligible and the appointment of such candidate shall be illegal.
11. In (2005) 4 SCC 209, Binod Kumar Gupta and others Vs. Ram Ashray Mahoto and others, appointment made without advertisement of civil court employees in violation of rule was held to be not lawful.
12. In (2006) 2 SCC 315, Mohd. Sartaj and another Vs. State of U.P. and others, their Lordships of Hon'ble Supreme Court upheld the judgement of this Court delivered by one of us (Hon'ble Mr. Justice Devi Prasad Singh) reported in 2004 LCD 1164, Afsar Husain Vs. Basic Shiksha Parishad and others whereby appointment made of certain candidates not possessing requisite qualification was declared illegal and cancelled though they had served for more than 12 years. Their Lordships held that on account of lack of requisite qualification candidates have no right over the post and hearing is not required for cancellation of their appointment. It has been further held that which candidate possess qualification is to be seen on the date of recruitment and not at later stage unless rules in that regard permit. Their Lordships held that minimum qualification in rule concerned should be fulfilled on the date of recruitment.
13. In a case reported in 2006 (1) ALJ 76, Mahesh Kumar and others Vs. State of U.P. and others, it has been held that where appointment of unqualified person is done, no humanitarian approach may be adopted.
14. Hon'ble Supreme Court in a case reported in (2012) 8 SCC 748, Jainendra Singh Vs. State of Uttar Pradesh and others, spelled out the ground on which appointment may be held to be wrong or invalid. Relevant portion of the judgment is reproduced as under:-
16. In 2012 (9) SCC 545, State of Gujarat and others Vs. Arvind Kumar T. Tiwari and another, while dealing with the compassionate appointment their Lordships of Hon'ble Supreme Court held that appointment may be considered in accordance with rules, regulations, administrative instructions governing the subject (para 8). It has been further held by their Lordships that a person who does not possess requisite qualification cannot even apply for recruitment. Further their Lordships ruled that eligibility criteria for appointment on particular post falls within the exclusive domain of legislatures/executive and it cannot be subject matter of judicial review unless found to be arbitrary . Appointing authority has got unfettered power so far as procedural aspects are concerned but it must meet the requirement of eligibility, to quote:-
"12. Fixing eligibility for a particular post or even for admission to a course falls within the exclusive domain of the legislature/executive and cannot be the subject matter of judicial review, unless found to be arbitrary, unreasonable or has been fixed without keeping in mind the nature of service, for which appointments are to be made, or has no rational nexus with the object(s) sought to be achieved by the statute. Such eligibility can be changed even for the purpose of promotion, unilaterally and the person seeking such promotion cannot raise the grievance that he should be governed only by the rules existing, when he joined service. In the matter of appointments, the authority concerned has unfettered powers so far as the procedural aspects are concerned, but it must meet the requirement of eligibility etc. The court should therefore, refrain from interfering, unless the appointments so made, or the rejection of a candidature is found to have been done at the cost of ''fair play', ''good conscious' and ''equity'. (Vide: State of J & K v. Shiv Ram Sharma and Praveen Singh v. State of Punjab).
13. In State of Orissa & Anr. v. Mamta Mohanty, this Court has held that any appointment made in contravention of the statutory requirement i.e. eligibility, cannot be approved and once an appointment is bad at its inception, the same cannot be preserved, or protected, merely because a person has been employed for a long time. 14. A person who does not possess the requisite qualification cannot even apply for recruitment for the reason that his appointment would be contrary to the statutory rules is, and would therefore, be void in law. Lacking eligibility for the post cannot be cured at any stage and appointing such a person would amount to serious illegibility and not mere irregularity. Such a person cannot approach the court for any relief for the reason that he does not have a right which can be enforced through court. (See: Prit Singh v. S.K. Mangal and Pramod Kumar v. U.P. Secondary Education Services Commission.)"
17. Their Lordship further held (supra) that courts and tribunal do not have power to issue direction to make appointment by way of relaxation in eligibility or in contravention thereof. Meaning thereby while considering the validity of appointment the courts or tribunal should stick to the rules, regulations or criteria provided by law with regard to selection and appointment. In no way courts have right to deviate from statutory mandate.
18. In 2013(2) SCC 516, Bhupendra Nath Hazarika Vs. State of Assam and others, after considering the earlier judgements their Lordships of Supreme Court reiterated that where recruitment is regulated by statutory rules it must be done in accordance to those rules. Appointment dehors the rules would be illegal. Even if services are regularised the appointees are not entitled to have seniority fixed on the basis of total length of service.
19. In 2013 (11) SCC 611, Vijoy Kumar Pandey Vs. Arvind Kumar Rai, Hon'ble Supreme Court dealt with a case where Head Master appointed in pursuance to an order which was ultimately set aside. Their Lordships permitted him to continue as Head Master with all monetary benefit until fresh selection was made against the vacancy in accordance to Rules. It was further provided by their Lordships that such engagement would not create any equity in his favour nor constitute additional weightage in fresh selection process.
20. In view of aforesaid settled proposition of law there appears to be no room of doubt that since petitioner was appointed in contravention of DoPT Office Memorandum dated 21.11.1990 (supra) and admittedly not passed English as a subject she was not entitled for appointment on the post of Branch Post Master.
21. Learned counsel for the petitioner vehemently argued that advertisement does not refer to English as a subject in High School and Poorva Madhyma and should be treated as equivalent to High School in terms of advertisement. Prima facie, argument advanced by learned counsel for the petitioner seems to carry weight in terms of State Government's circular but no court or tribunal may uphold the appointment which has been done in contravention of eligibility criteria provided under relevant rules, regulations or order dealt with service conditions. Upholding the petitioner's appointment means perpetuating illegality committed by the respondents in contravention of office memorandum (supra) dealing with the eligibility criteria which seems to be not permissible.
22. In 2011 (3) SCC 436, State of Orissa and another Vs. Mamata Mohanty, their Lordships of Supreme Court had reiterated the settled proposition of law that every action of the State or its instrumentalities should not only be fair, legitimate and above board but should be without any affection and aversion. It should not be suggestive of discrimination nor even give an impression of bias, favouritism and nepotism. Once court comes to conclusion that wrong order has been passed or wrong decision has been taken then it becomes solemn duty of the court to rectify the mistake rather than perpetuate the same. To quote relevant portion as under:-
56. It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief. (Vide Chandigarh Administration & Anr v. Jagjit Singh, Yogesh Kumar & Ors. v. Government of NCT Delhi, Anand Buttons Ltd. etc. v. State of Haryana & Ors.,K.K. Bhalla v. State of M.P. Krishan Bhatt v. State of J & K, Upendra Narayan Singh and Union of India & Anr. v. Kartick Chandra Mondal.) 57. This principle also applies to judicial pronouncements. Once the court comes to the conclusion that a wrong order has been passed, it becomes the solemn duty of the court to rectify the mistake rather than perpetuate the same. While dealing with a similar issue, this Court in Hotel Balaji & Ors. v. State of A.P. observed as under:(SCC p. 551, para 12) "12..'2...To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this, we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce v. Delameter at page 18: ` "a Judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors'". (See also re: Sanjiv Datta, Dy. Secy., Ministry of Information & Broadcasting, (1995) 3 SCC 619; Nirmal Jeet Kaur v. State of M.P. & Anr., and Mayuram Subramanian Srinivasan v. CBI.) 58.We are fully alive of the object and purpose of according recognition and affiliation to educational institutions. It is the educational authorities of the State which grant recognition to a Committee of Management for opening or running an educational institution. Affiliation is granted by the particular University or Board for undertaking the examination of the students of that college for awarding degrees and certificates. Therefore, while granting the recognition and affiliation even for non-governmental and non-aided private colleges, it is mandatory to adhere to the conditions imposed by them, which also include the minimum eligibility for appointment of teaching staff. The authority at the time of granting approval has to apply its mind to find out whether a person possessing the minimum eligibility has been appointed. In the instant case, it appears to be a clear cut case of arbitrariness which cannot be approved." 23. In 2013 (3) SCC 1, State of Gujarat and another Vs. Justice R.A. Mehta (Retired) and others again Hon'ble Supreme Court given emphasis for compliance of constitutional and statutory mandate.
24. One of the argument advanced by learned counsel for the petitioner is that on account of pendency of litigation applicants are suffering from age bar and no one can be appointed. While considering identical question one of us (Hon. Mr. Justice Devi Prasad Singh) while deciding a case reported in 2008 (26) LCD 1126, Satish Kumar Pal Vs. State of U.P. and others, after considering different pronouncements of Hon'ble Supreme Court held that fundamental right of a citizen ordinarily may not come to an end because of pendency of litigation, in case, otherwise not prohibited by law. A person cannot put to suffer because of no fault on his or her part. Accordingly, in case any applicant qualify for the post in question in pursuance to judgement of tribunal or this court he will have right to be appointed prospectively in case he or she was qualified on the date of advertisement for the post in question and had moved application well within time.
25. In view of above, impugned judgment and order passed by the tribunal does not seems to suffer from impropriety or illegality. However, we modify the impugned judgment and order of the tribunal to the extent that petitioner shall be permitted to continue in service with all benefits, perks and salary till fresh selection is held in accordance to law. We direct the respondents to reprocess the selection and consider the appointment of all the applicants in accordance to Rules/O.M. expeditiously, say within a period of four months from the date of receipt of a certified copy of this order. On account of pendency of litigation the selection and appointment of eligible candidate shall not be obstructed.
Writ petition is disposed of accordingly.
Order Date :- 25/3/2014 Madhu