BALIRAM PRASADversusUNION OF INDIA AND ORS.

                                    BALIRAM PRASAD                                        A
                                               v.
                               UNION OF INDIA AND ORS.
'•
                                    DECEMBER 17, 1996

                         [N.P. SINGH AND S.B. MAJMUDAR, JJ.)                              B

                Administiative Tribunals Act-Section 21-'-Application for setting-aside
          an appointment-Limitation-Application not filed within one year of ap-
          pointment-Medical Certificate on record showing applicant was ill for certain
          period-If such period is excluded, period of delay would be minimaf-Held,       c
          cause made out was sufficient to condone the delay.

                Constitution of India-Article 311/14-Appointment~efusal to ap-
          point meritorious candidate-Cousin-brother was working in same office as
          peon-Decision of authorities to avoid employment of near relative in same
          office-Held, exercise of such power without rhyme and reason is arbitrary D
          and hit by Art. 14.

                 The appellant filed an application before the Central Administrative
·k
..
          Tribunal, challenging the appointment of the respondent no. 7 as Extra
          Department Branch Post Master, bypassing the appellant. This applica-
                                                                                          E
          tion was dismissed by the Tribunal on two grounds: first, as it was
          time-barred and second, the appellant was disqualified due to the fact that
          his cousin was already working in the same Post-Offic as Extra
          Departmental Delivery Assistant. Consequently, this appeal by special
          leave.
                                                                                          F
                 The contention of the appellant was that the reasoning adopted by
          the Tribunal in dismissing the application was patently erroneous and was
          liable to be set aside. On the other hand, respondent no. 7 contended that
4-        he was appointed on 16th July 1992 and the application whatsoever,
          against his appointment, needed to be made before the Tribunal, could be
          made within one year of the appointment i.e. by 16th July 1993; instead the G
     i_   appellant filed the application in January 1994 and failed to make out any
          sufficient cause for such delay. As far as the merit was concerned, the
          authorities had decided on 17th October 1966 that the employment of near
          relatives in the same office was to be avoided. As the appellant's cousin
          brother was already working in the same Post Office, he could not be H
                                               199
    200                    SUPREME COURTREPORTS(1996) SUPP.10 S.C.R.

A   app9inted even though the appellant was more meritorious than the
    respondent No. 7, and the Tribunal was justified in dismissing the applica-
    tion of the appellant.

            Allowing the appeal, this Court

B          HELD : 1. The Tribunal was patently in error in dismissing the
    application of the appellant on the grounds of limitation as well as on
    merits. On the question of limitation, it was not relevant to consider the
    delay for the period earlier to 16th .July 1993, as the application could be
    filed by this date. A medical certificate showing illness of the appellant from
C   20th August, 1993 to 22nd December, 1993 was also on record. If this period
    was excluded, then the delay in filing the application remains minimal
    which in the interest of justice deserved to be condone.[202-A-B; 202-D]

           1.1. On merits, the Tribunal had itself noted that as compared to
    respondent no. 7 the appellant was more meritorious. The decision of the
D   authorities taken on 17th October 1966 reads as : "Employment of near
    relatives in the same office be avoided. -----------. As this is fraught with the
    risk of frauds etc., this should be avoided." Even if there may be any risk
    of fraud etc. even non-relative can be gu~lty of frauds, while on the contrary
    relatives may not be prone to such frauds. But even if they are, appropriate
E   procedure can be adopted for detecting such frauds and bringing the guilty
    to book or by having appropriate vigilance machinery to check such
    tendencies. But refusal to appoint a more meritorious candidate only on
    the ground that his cousin brother was working in the same Post-Office,
    without underling any rhyme and reason, would be totally arbitrary exer-
    cise of power which cannot be held permissible under Article 14 of the
F   Constitution of India. [202-E; H; 203-A-B; 203-D-F]

          In this view, the Tribunal was not justified in dismissing the applica-
    tion of the appellant. Hence, the order of the Tribunal is set aside.[204-B]

G           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 16753 of
    1996.

          From the Judgment and Order dated 2.3.95 of the Central Ad-
    ministrative Tribunal, Patna in 0.A. No. 192 of 1994.

H           A. Sharan and A.P. Singh for the Appellant.
           BALIRAM PRASAD v. U.0.1. [S.B. MAJMUDAR, J.]                 201
      M.K. Dua, T.C. Sharma, C.V;S. Rao for the Respondents.                   A

      The Judgment of the Court was delivered by

      S.B. MAJMUDAR, J. Leave granted.
                                                                               B
       With consent of learned advocates representing the respective par-
ties the appeal was heard finally and is being disposed of by this Judgment.
The short question involved in this appeal is as to whether the appointment
of respondent no. 7 as Extra Department Branch Post Master, bypassing
the appellant was legally justified or not. The Central Administrative
Tribunal, Patna Bench, Patna has taken the view that though the appellant      C
was more qualified to be appointed on the said post respondent no. 7 was
rightly appointed as the appellant was disqualified due to the fact that his
cousin brother was already working in the same Post Office as Extra
Department Delivery Assistant. Consequently the Tribunal dismissed the
appellant's application 0.A. 192 of 1994 and confirmed the appoinpnent         D
of respondent no. 7 on the said post.

      Learned counsel for the appellant has contended that the aforesaid
reasoning adopted by the Trib~al is patently erroneous and consequently
the decision of the Tribunal deserves to be set aside.
                                                                               E
        Learned counsel for respondent No. 7 who is the main contesting
respondent, on the other hand submitted that the Tribunal was justified in
dismissing the appellant's application both on the ground of limitation as
well as on merits. He submitted that respondent no. 7 was appointed on
16th July 1992. If any grievance was to be made about the appointment of F
respondent no. 7 by the appellant then the application should have been
moved within one year, that is, by 16th July 1993. Instead it was filed in
January 1994. The appellant had failed to make out a~y sUfficient cause for
not filing the said application in time. The delay for the period from August
1993 to January 1994 remained unexplained and was rightly not condoned
by the Tribunal. On merits it was submitted that the authorities had taken G
a decision on 17th October 1966 to the effect that employment of near
relatives ~ the same office was to be avoided and as appellant's cousin
brother was already working in the same Post Office, namely, the Branch
Post Office, the appellant could not be appointed even though he may be
more meritorious than respondent no. 7.                                       H
    202                   SUPREME COURTREPORTS[1996] SUPP.10 S.C.R.

A          In our view the· Tribunal was patently in error in· dismissing the
    application of the appellant both on the ground of limitation as well as on
    merits. So far as the question of limitation is concerned it is true that the
    appointment of respondent no. 7 was effected by the authorities on 16th
    July 1992 and consequently the application could have been filed before
B   the Tribunal within one year from that date. But the appellant had already
    produced before the Tribunal material to indicate that he was not well from
    20th August 1993 and he had recovered only by the end of December 1993.
    The Tribunal has noted that there was no explanation of delay from
    January 1993 to August 1993. We fail to appreciate how this aspect was at
    all relevant. Learned counsel for respondent no. 7 also rightly submitted
C   that what was to be explained by the appellant was the delay from August
    1993 to January 1994. If that is so the appellant had already produced the
    Medical Certificate showing his illness from 20th August 1993 to 22nd
    December 1993. If this period is excluded then the delay in filing the
    application remains minimal which deserves to be condoned in the interest
D   of justice. We, therefore hold that the appellant had made out sufficient
    cause for condoning the delay in filing the application and the said delay
    deserves to be condoned. That takes us to the merits of the controversy.

         The Tribunal has itself noted that as compared to respondent no. 7
  the appellant was more meritorious. He had obtained 546 marks in the first
E division in Matriculation examination as compared to respondent no. 7 who
  had passed in third division and got 404 marks. In Class VII examination
  the appellant had got 468 marks while respondent no 7 had got 220 marks.
  The appellant's annual income was Rs. 17,000 while respondent no. 7's
  annual income was Rs. 7,500. The Tribunal has rightly noted that they were
F impressed by the high marks secured by the appellant and in the normal
  circumstances he should have been the only choice for the post. However
  according to the Tribunal there were two handicaps from which the appel-
  lant suffered. The first handicap was that his cousin brother Bhola prasad
  was working in the Post Office as Extra Department Delivery Assistant and
  the second handicap was about limitation. We have already dealt with the
G second handicap which according to the Tribunal was liable to non-suit the
  appellant. In our view no such handicap remained as the delay in filing the
  application deserves to be condoned in the interest of justice and we have
  done so. So far as the other handicap is concerned it is the only handicap
  which remains for consideration. In our view it is no handicap at all. The
H decision of the authorities dated 17th October 1966 reads as under :
           BALIRAM PRASAD v. U.0.1. (S.B. MAJMUDAR, J.)                    203

         "EMPLOYMENT of near relatives in the same office to be A
         avoided. Instances have come to light where very near relations
       · have been appointed to work as Ed. BPM, Ed. DA or ED Mail
         Carrier in the same office. As this is fraught with the risk of frauds.
         etc., this should be avoided."
                                                                                  B
It is difficult to appreciate how pursuant to the said decision the appellant
could have been treated as not qualified to be appointed as Extra Depart-
ment Branch Post Master in the Post Office. His cousin brother was
working on a lower post of Extra Department Delivery Assistant. He would
be performing a manual work of effecting delivery of postal articles to the
addresses. Only because appellant's cousin brother was working as a Peon          C
in the said Post Office doing such manual work it passes our comprehen-
sion how the appellant could not be appointed as Extra Department
Branch Post Master in the said Post Office. There is no rhyme or reason
underlying such an approach on the part of the authorities. To say the least
it would be totally arbitrary and irrational. Even if there may be any risk       D
 of fraud etc. even non-relatives can be guilty of frauds while on the contrary
relatives may not be prone to such frauds. But even if they are, appropriate
procedure can be adopted for detecting such frauds and bringing the guilty
to book or e:ven for effectively checking such tendencies by having ap-
propriate vigilance machinery. But to refuse to appoint a more meritorious
candidate only on the ground that his cousin brother was working in the           E
same Post Office would, in our view, be totally an arbitrary exercise of
power which cannot be countenanced ·On the touchstone of Article 14 of
the Constitution of India. We asked learned counsel for the appointing
authority as to whether there is any other disqualification of the appellant
save and except the ground of his cousin brother being working as Peon            F
doing the manual work in the Post Office. He fairly stated that there is no
other ground excepting this ground. In out view such a gro~d cannot be
sustained from any viewpoint and must be held to be totally arbitrary and
irrational. The Tribunal was not justified in non-suiting the appellant on
merits only on this ground. Learned counsel for respondent no. 7 submitted        G
that even if the appellant has a ·good case on merits he should not be
disturbed as he is working at his own residence as Extra Department
Branch Post Master since about four years and more. That is neither here
nor there. Once it is found that the appellant wa~ more meritorious as
compared to respondent no. 7 and deserves to be.appointed on merits and
his claim was not considered on a totally irrational and arbitrary ground         H
    204                   SUPREME COURT REPORTS(1996] SUPP.10 S.C.R.

A the legal consequences resulting from the voiding of such an illegal exercise·
    must follow.

        In the result this appeal is allowed. The judgment and order
  rendered by the Central Administrative Tribunal, Patna in 0.A No. 192 of
  1994 are quashed and set aside. The said application is allowed. The
B impugned appointment of respondent no. 7 as Extra Department Branch
  Post Master is quashed and set aside. The authorities are directed to
  appoint the appellant as Extra Department Branch Post Master in the
  place of respondent no. 7 and allow him to work as such in accordance
  with rules and regulations of the Department, by running the Post Office
C on his premises. In the facts and circumstances of the case there will be ·
  no order as to costs.

    B.K.S.                                                     Appeal allowed.