Chhote Lal vs Union Of India & Others
2017 Latest Caselaw 4064 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 37
 

 
Case :- WRIT - A No. - 65738 of 2008
 

 
Petitioner :- Chhote Lal
 
Respondent :- Union Of India & Others
 
Counsel for Petitioner :- Ashish Srivastava
 
Counsel for Respondent :- A.S.G.I.,H.C.Dubey,S.C.
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Rajiv Lochan Mehrotra,J.

Heard learned counsel for the petitioner Sri Ashish Srivastava and Sri H.C. Dubey for the respondent-Department.

Notices had been issued to the private respondents and as is evident from the order dated 6.11.2013 on the order sheet, service on the private respondent has been treated to be deemed sufficient in terms of the Allahabad High Court Rules, 1952. 

This writ petition has been filed assailing the order of the Tribunal dated 12.5.2008 questioning the appointment of the respondent no. 4 on the post of Gramin Dak Sewak Mail Distributor (GDSMD) in the postal department on the ground that the fourth respondent being lower in merit than the petitioner in the selections that were held has been erroneously appointed ignoring the candidature of the petitioner on the grounds which are untenable in law.

The respondents contested this claim of the petitioner before the Central Administrative Tribunal where an original application had been filed by the petitioner at the first instance contending that, firstly, on police verification it was found that a criminal case was pending investigation against the petitioner and secondly, the status of his residence certification as was required in terms of the Rules applicable was found to be forged.

The Tribunal has proceeded to dispose of the claim of the petitioner adopting a middle path observing that in case the petitioner succeeds in getting himself exonerated in the criminal case it will be open to him to apply for any other post in future.

Learned counsel for the petitioner submits that this approach is erroneous, inasmuch as, the very lodging of the non cognizable report against the petitioner was a malafide act which stood proved on record and the enquiry with regard to the residence certificate supplied by the petitioner was ex-parte and in violation of principles of natural justice, which grounds have not been taken into consideration by the Tribunal while disposing of the application. 

Sri Ashish Srivastava, learned counsel for the petitioner submits that on the basis of material on record it is established that the police report alleged to have been lodged against the petitioner was a malafide act that was done on the eve when the appointment letter was to be issued, in connivance with an outsider by the respondent no. 4. For this the petitioner has relied on the report of the Police Station Khajani, District Gorakhpur dated 23rd June 2016 which is annexed as Annexure No. 5 to the writ petition to establish that it was a malafide act. On the issue of residence certificate the petitioner had tendered a certificate supplied by one Sri Mahendra Sahni indicating that the petitioner was residing in his premises which was within the delivery jurisdiction of the branch post office where the appointment was to be made. He submits that these aspects have not been appreciated in correct perspective and therefore, the order of the Central Administrative Tribunal deserves to be set aside and the appointment offered to a candidate lower in merit, namely the respondent no. 4, should be quashed. 

A counter affidavit has been filed and Sri H.C. Dubey, learned counsel for the respondents submits that on both grounds it is evident that the police case was pending against the petitioner and investigation was ordered by a Court of competent jurisdiction as is evident from the report dated 4th July, 2006 copy whereof has been filed as Annexure No. 2 to the counter affidavit. He, therefore, submits that even if the report was a non cognizable report lodged on 16th June, 2006 yet the fact remains that the investigation was pending on police verification and this aspect having not being factually dislodged in the rejoinder affidavit, the presumption is that the criminal case which is pending and is under an investigation cannot allow the petitioner to claim a right to the post.

The second submission is that the residence certificate on verification was found to be forged as per the communication of Sri Mahendra Sahni himself, copy whereof has been filed as Annexure No. 1 to the counter affidavit which document was also on record before the Central Administrative Tribunal. The petitioner failed to rebut the same or produce any other document denying the issuance of the said letter from Sri Mahendra Sahni, and consequently on both grounds the candidature of the petitioner was unacceptable, hence the person next in merit has been rightly appointed. 

Learned counsel for the petitioner has invited the attention of the Court to the rejoinder affidavit filed before this Court to urge that the residence certificate was correct and even otherwise the requirement under the Rule is for providing evidence of residence which could have otherwise also been done after the appointment of the petitioner as stated in paragraph 18 of the rejoinder affidavit. 

We have considered the submissions and have perused the record and we find that so far as the police report is concerned it was lodged on 16th June, 2006 itself. The Police Station did submit a report on 23rd June that it was an outcome of connivance between the respondent no. 4 and one Sri Sanjay Singh. However, a contradictory report has been submitted by the Police later on which reliance has been placed by the respondents. The said contradiction in the police reports therefore, does indicate a serious doubt about the lodging of the complaint against the petitioner on the eve of appointment.

However, any determination on the said issue would be subject to the jurisdiction of the Court concerned or the police authorities themselves, if any, final decision or final report is to be yet taken in respect thereof.

Be that as it may, leaving aside  the aforesaid issue to be determined by the appropriate forum, on the second aspect relating to the residence certificate, it would be appropriate to refer to the requirement under the advertisement. For this Clause (III) as extracted in the counter affidavit of the respondents filed before the Tribunal is extracted hereinunder:-

"(iii) The candidate should provide the self residence in the delivery jurisdiction of Mahuraon Branch Office before the appointment."

The aforesaid condition has not been challenged or contradicted by the petitioner. The only averment contained in the rejoinder affidavit is that such proof of residence can even be given after appointment.

We are unable to agree with the aforesaid contention of the learned counsel for the petitioner for the simple reason that the clause specifically requires that the candidate should provide self residence in the delivery jurisdiction of the concerned Branch before appointment. The petitioner had provided this certificate issued by Sri Mahendra Sahni which was denied by him and no effective rebuttal was filed by the petitioner either before the Tribunal or even before this Court in the rejoinder affidavit. The authority therefore cannot be put to fault as the author of the certificate has issued a clear denial.

To the contrary, the petitioner takes a stand that as per the condition the applicant could have arranged an accommodation after his appointment against the post in question. This is not the stipulation in the Clause that was advertised and consequently, the petitioner cannot be said to have fulfilled the aforesaid essential condition of providing an appropriate self residence certificate within the delivery jurisdiction of the said branch post office where the appointment had to be made. Consequently on this second ground the petitioner has failed and therefore, there is no occasion for us to interfere with the order of the Central Administrative Tribunal.

The writ petition is accordingly, dismissed with no order as to costs.

Order Date :- 7.9.2017

S.Chaurasia