Sobha S vs Union Of India on 3 March, 2025

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Kerala High Court

Sobha S vs Union Of India on 3 March, 2025

1. Feeling aggrieved by the order of the Central Administrative Tribunal, Ernakulam in O.A. No.180/00167/2019 dated 08.04.2022, the applicants preferred this OP(CAT). The applicants approached the Central Administrative Tribunal with the following claim.

i. "Call for the records leading to the issue of Annexures A1 to A3 and quash the same to the extent they proceed as if the process of selection is through a Limited Departmental Competitive Examination;

ii. Declare that A1 is only an examination equivalent to the Subordinate Accounts Service Examination conducted by the Department of Posts & Telecommunications and declare further that passing of which, is only an eligibility condition to be considered for promotion as Assistant Accounts Officers, and that all those who qualify in the said examination are subject to fulfillment of other conditions in column 11 of the schedule to Annexure A7, eligible to be considered for promotion by the Departmental Promotion Committee in the manner specified in A6 OM of the Department of Personnel & Training;

2025:KER:32916 OP(CAT) No.37 of 2022 -:5:- iii. Direct the respondents to consider the applicants for promotion to the post of AAO in the order of their seniority in terms of Annexure A6, and direct further to grant them all the consequential benefits of promotion from the date from which those who are included in A3 have now been promoted, including arrears of pay and allowances, arising there from;

iv. Award costs of and incidental thereto; v.Pass such other orders or directions as deemed just and fit by this Hon'ble Tribunal."

2. The Central Administrative Tribunal as per the impugned order dismissed the original application.

3. Succinctly the facts in dispute for adjudication of the controversy are enumerated hereunder:

4. Petitioners/applicants, working as Senior Accountants in Department of Posts and Telecommunications were denied a fair and lawful consideration for promotion to the post of Assistant Accounts Officer in level-8 of the pay matrix against the Recruitment Rules. The respondents had published Annexure-A1 notification dated 19.04.2018 for recruitment to the post of Assistant Accounts Officer through a Limited Departmental Competitive Examination (hereinafter referred to as 'LDCE'). The respondents had also published Annexure-A2 2025:KER:32916 OP(CAT) No.37 of 2022 -:6:- corrigendum giving some more details regarding the last date of receipt, pattern of questions, etc.

5. After the LDCE, the respondents published result as Annexure-A3 OM dated 01.10.2018, showing a merit list of 949 candidates.

6. The petitioners/applicants challenged the conduct of LDCE after participating in the selection process. The main challenge was that the LDCE conducted by the respondents is against the Recruitment Rules. Further, the passing of LDCE can only be considered as an eligibility test. It was further contended that no Departmental Promotion Committee (DPC) was held for granting promotion.

7. The contention of the official respondents was that as per the VIth Central Pay Commission recommendations, the cadre of Junior Accounts Officer and Assistant Accounts Officer were merged into one cadre by name Assistant Accounts Officer with effect from 01.01.2006. Further, Group-B cadre of Department of Posts and Department of Telecommunications was amalgamated as unified cadre as AAO/AO/Sr.AO with effect from 01.09.2009.

Owing to this, the four sets of Recruitment Rules in operation in the Department of Posts and Department of 2025:KER:32916 OP(CAT) No.37 of 2022 -:7:- Telecommunications.

8. The Tribunal, noticing the rival contentions of the counsel for the parties, disposed of the original application.

9. The learned counsel for the respondents supported the order of the Central Administrative Tribunal. On the other hand, petitioners/party in person submitted that the impugned order of the Central Administrative Tribunal is patently illegal and unsustainable. It was submitted that the Tribunal ought to have struck down the entire promotion and directed the convening of DPC in accordance with law.

10. We have heard the rival submissions of the counsel for the parties and appraised the paper book.

11. Admittedly, petitioners/applicants participated in the LDCE. The petitioners after participated in the selection process, cannot volte-face and challenge the selection process.

12. In the decisions in Madras Institute of Development Studies and Another v. Dr. K. Sivasubramaniyan & Others [2015 KHC 4547], Saroja Kumari D v. Helen Thilakom & Others [2017 (4) KHC 898] and Ashok Kumar and Others v. State of Bihar and Others [(2017) 4 SCC 357], the Hon'ble Supreme Court observed that a 2025:KER:32916 OP(CAT) No.37 of 2022 -:8:- person who consciously takes part in process of selection cannot turn around and question method of selection.

13. The Central Administrative Tribunal after evaluating the evidence and materials on record, disposed of the original application. The relevant paragraphs of the order of the Tribunal are extracted hereunder:

"xxxxxxxxxxxxxxxxx

10. We have heard the learned counsel appearing for the applicants Advocate Shri T.C. Govindaswamy, learned counsel appearing for the respondents Nos. 1 to 5 Advocate Smt. O.M. Shalina, SCGSC and the learned counsel appearing for the private respondents Advocate Smt. Thanuja Roshan George and Advocate Mr. S. Sabarinadh. We have carefully gone through the pleadings, the Recruitment Rules and various documents produced in this OA.

11. The counsel for the applicants mainly contends that there is no provision in the new Recruitment Rules (Annexure A7) for conducting an LDCE examination. He further contends that since SAS examination was not conducted for a long time and considering the subject involved in the examination papers, it can at the most be considered as a qualifying examination and not a competitive examination. The respondents ought to have considered it as only a qualifying examination and all those who got the minimum marks should have been included in the list and promotion should have been given on the basis 2025:KER:32916 OP(CAT) No.37 of 2022 -:9:- of seniority and grading obtained in the confidential reports as per guidelines for promotion produced as Annexure A6.

12. But the counsel appearing for the respondents would contend that column 11 of the Recruitment Rules provides an option other than SAS i.e. "equivalent examination conducted by Department of Posts and Telecommunications or Competent Authority specified by the Department". Since the SAS examination were not conducted for a long time and since the mode of recruitment shown in column 5 of the Recruitment Rules is specifically shown as "Selection" the Department decided to conduct an LDCE as an equivalent examination incorporating the element of selection on the basis of merit. So according to the counsel for the respondents, the LDCE examination conducted has to be treated as qualifying as well as competitive examination based on merit.

13. On going through the situation faced by the Department and since the candidates are coming from two Departments i.e. DoP and DoT the merit should be a criterion for selection. The applicants are coming from two Departments and it is very difficult to prepare a common seniority list on the basis of benchmarks and grading obtained by the candidates. Foreseeing the said difficulties, the Recruitment Rules made it clear in column 5 that the mode of recruitment is by "Selection". As per column 11, the rule also provides for a provision for the Department to prescribe "equivalent examination" instead of the Subordinate Accounts Service Examination (SAS) which was not conducted for long time. So we find nothing wrong on the side of the respondents deciding to go for an LDCE to 2025:KER:32916 OP(CAT) No.37 of 2022 -:10:- give promotions to the employees.

14. Now the question is whether the LDCE is to be considered as a qualifying examination alone and not a competitive examination. On a careful consideration of the provisions of the Recruitment Rules, the mode of recruitment is shown as "Selection" and as per the guidelines issued by the DoP&T dated 31.10.2013 (Annexure A13) when promotion is made on the basis of merit the word "Selection" has to be shown in the schedule. In this case also in Annexure A7 column 5 shows that the method of recruitment is "Selection" and this shows that an element of merit is to be involved in the process. So the examination to be conducted should be qualifying as well as based on merit i.e., competitive in nature. So we find that there is no inherent contradiction with the rules for recruitment in this case. We further find that the selection conducted is both qualifying and competitive in nature. Therefore, merit has also to be taken into account when the recruitment by promotion is undertaken. We find that the conduct of the LDCE in these circumstances is not against the Recruitment Rules. We hold that the argument of the counsel for the applicants that the LDCE can be considered at the most as a qualifying examination alone is not acceptable.

15. The another argument raised by the learned counsel for the applicants is that when promotion is adopted as the mode of recruitment, only the seniority and benchmark grading alone can be considered for promotion. He mainly relies on Annexure A6 OM of the DoP&T dated 8.2.2002. The said OM was issued giving guidelines when mode of 2025:KER:32916 OP(CAT) No.37 of 2022 -:11:- selection is "selection-cum-seniority" and "selection by merit". According to him even juniors were promoted in this case. On a reading of the said OM, we find that this OM applies to promotions where selection mode shown is selection by seniority and selection by merit. In cases where up to and excluding Group-A posts, if the mode happens to be "selection-cum-seniority" then the benchmark prescribed is "good" and officers obtaining such benchmark are arranged in order of seniority in the lower grade. So there will be no supersession among those who met same benchmark. In cases of promotion from lower groups to Group-A and mode of promotion happens to be "selection by merit" the minimum benchmark prescribed is "good" and only those officers who get the said benchmark are promoted in the order of merit as per grading obtained. Thus officers getting a superior grading supersede those getting a lower grading. According to the counsel for the applicants, the candidates should have been selected on the basis of benchmark and seniority and not based on marks obtained. We had earlier discussed whether merit should form an element in the selection process. We had found that the LDCE examination had two aspects i.e. one qualifying and other as competitive and merit is an element for selection. This is not a case where the mode of selection is based on selection-cum-seniority or selection by merit. The mode is "Selection" which takes into account merit and it is a selection post. So, the above OM of the DoP&T (Annexure A6) has no application to the present case. We find no merit in this argument also.

16. The other argument raised by the counsel for the applicants is that as per the Recruitment Rules column 12 a 2025:KER:32916 OP(CAT) No.37 of 2022 -:12:- departmental promotion committee has to be constituted for Group-B and the respondents have granted promotion to respondents Nos. 6 to 12 and others without placing the selection list along with other details before the DPC and hence the promotions are illegal. We have gone through the pleadings and various documents produced by both applicants and respondents in this case. We could not find any answer given in the pleadings of respondents in the OA either in the reply statement or in the additional reply statement filed by the respondents. Since the respondents have not denied this allegation we find that there is merit in this argument. The respondents ought to have promoted the candidates after placing them for consideration before the DPC. So there is an irregularity occurred in promoting respondents Nos. 6 to 12 and others in this case. The examination conducted was an all India examination. This irregularity can be cured by placing the names of the selected candidates along with service details before a properly constituted DPC for this purpose. Hence, we hereby direct the respondents to conduct a DPC as provided under the Recruitment Rules within a period of three months from the date of receipt of a copy of this order. The promotions already granted will be treated as ad-hoc promotions till the promotions are ratified by a properly constituted DPC as per the Recruitment Rules.

17. The counsel for the respondents Nos. 6 to 8 and 9 to 12 had invited our attention to an earlier OA No. 360 of 2018 filed by the applicants herein along with some others which was disposed of by this Tribunal on 25.5.2018 wherein the following reliefs were claimed:

2025:KER:32916 OP(CAT) No.37 of 2022 -:13:- "(1) Call for the records leading to issuance of Annexure A1 and to quash the same as it is illegal and amounts to discrimination of the applicants which violates their rights guaranteed by the Constitution; (2) Declare that A1 and further proceedings thereto are illegal in the light of the patent exclusion of the applicants for a fair participation in the LDCE; (3) Set aside A2 qushing the same being unreasonable and unjustifiable as regards the applicants; (4) Direct the 1st respondent to consider A3 on merits in the light of Rule 8 of A1, prior to conduct of LDCE on the basis of A2 syllabus;

(5) Direct the respondents to appoint and regularize the applicants in the post of Assistant Accounts Officer (AAO) cadre in the Postal Accounts Offices, as a onetime measure, before further processing of applications received pursuant to A1:

(6) Grant such other reliefs which this Hon'ble Tribunal may deem fit, proper and just in the circumstances of the case;

And (7) Award costs to the applicants"

The said OA was disposed of on merits holding that there is no sufficient ground to stay the Recruitment Rules and held that merit is an important criteria to be considered for advancement in career as also seniority and we cannot find fault with the authorities for having followed this principle. The above OA was disposed of by giving a direction to consider their representation in the light of Rule 8 i.e. power to relax and exempt them from LDCE before the examination is conducted. The decision in that OA has become final as no OP (CAT) was filed against it. The respondents rejected the representation of the applicants as 2025:KER:32916 OP(CAT) No.37 of 2022 -:14:- per order dated 2.7.2018 (Annexure A9). Thereafter, the applicants participated in the examination fully knowing that merit obtained in the LDCE will be a criterion for promotion. The applicants ought to have raised the contentions made in this OA in their earlier OA. Now it seems that having failed to come up in the merit list, the applicants had filed another OA raising some other contentions. We find merit in the arguments of the private respondents Nos.9 to 12 in this regard.

18. In the result, we find no merit in the arguments raised by the applicants except the argument raised by the applicants in paragraph 16 of this order. Accordingly, we dispose of this Original Application with the following directions:

i) The respondents are directed to place the select list of the persons who came up in merit list before a properly constituted DPC and grant promotion as per rules.

ii) The respondents are directed to treat the promotions already granted as ad hoc one till DPC approves it.

iii) The respondents are also directed to make it amply clear in the notification itself that the LDCE going to be conducted will be competitive as well as qualifying in nature in future notifications for promotions."

14. On going through the order of the Central Administrative Tribunal and on hearing the submission of the party in person and the counsel for the respondents and as well 2025:KER:32916 OP(CAT) No.37 of 2022 -:15:- the case law (supra), we do not find any illegality or perversity in the order of the Central Administrative Tribunal.

The OP(CAT) is devoid of any merit and stands dismissed.

Sd/-

AMIT RAWAL JUDGE Sd/-

K. V. JAYAKUMAR JUDGE jka 2025:KER:32916 OP(CAT) No.37 of 2022 -:16:- APPENDIX OF OP (CAT) 37/2022 PETITIONERS' ANNEXURES Exhibit-P1 A TRUE COPY OF THE ORDER OF THE LEARNED CAT, ERNAKULAM BENCH IN O.A.NO.180/00167/2019 DATED 08.04.2022.

Exhibit-2 A TRUE COPY OF THE O.A.NO.167/2019 FILED BEFORE THE LEARNED CAT, ERNAKULAM BENCH ALONG WITH ITS ANNEXURES Annexure-A1 A TRUE COPY OF EXAMINATION NOTIFICATION ISSUED BY THE 1ST RESPONDENT UNDER NO.3- 37/2016-DE/PACE/AAO EXAM/460-461 DATED 19TH APRIL 2018.

Annexure-A2 A TRUE COPY OF EXAMINATION NOTIFICATION (CORRIGENDUMS) COMMUNICATED BY THE 1ST RESPONDENT UNDER NO.

3-37/2016-DE/PACE/AAO EXAM/760 TO 834 DATED 15.05.2018 Annexure-A3 A TRUE COPY OF RESULTS OF THE EXAMINATION FOR PROMOTION TO THE POST OF ASSISTANT ACCOUNTS OFFICER COMMUNICATED BY THE 1ST RESPONDENT UNDER LETTER BEARING NO.301(08)/PA ADMN.III/2012 TO 2114 DATED 01ST OCTOBER 2018.

Annexure-A4 A TRUE COPY OF LETTER BEARING NO.301(1)/2012/PA ADMN III/1917 TO 1918 DATED 23RD MARCH 2017 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT CIRCULATING DRAFT RECRUITMENT RULES RELATING TO THE POST OF ASSISTANT ACCOUNTS OFFICER.

Annexure-A5 A TRUE COPY OF COMMUNICATION UNDER NO.

301(1)/2012/PA ADMN III/1031 TO 1032 DATED 14 SEP 2017, ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT.

Annexure-A6 A TRUE COPY OF DEPARTMENT OF PERSONNEL & 2025:KER:32916 OP(CAT) No.37 of 2022 -:17:- TRAINING OFFICE MEMORANDUM BEARING NO.35034/7/97-ESTT(D) DATED 08.02.2002.

Annexure-A7 A TRUE COPY OF GAZETTE NOTIFICATION AS CIRCULATED FROM THE OFFICE OF THE 1ST RESPONDENT UNDER LETTER BEARING F.NO. 301(1)/2012/PA ADMN III/30 TO 120 DATED 02 APR 2018.

Annexure-A8 A TRUE COPY OF ORDER DATED 25 MAY 2018 IN OA NO.180/00360/2018 RENDERED BY THIS HON'BLE TRIBUNAL.

Annexure-A9 A TRUE COPY OF OFFICE MEMORANDUM BEARING NO. 301(1)/2018/PA ADMN III/1277 TO 1283 DATED 02 JUL 2018, ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT Annexure-A10 A TRUE COPY OF LETTER BEARING NO.

304(272)/2018/PA ADMN III/3857 DATED 14 NOV 2018, ISSUED BY THE CPIO & ACAO (COMPUTER) IN THE OFFICE OF THE 1ST RESPONDENT.


Annexure-A11            A TRUE COPY OF MESSAGES RECEIVED BY EACH
                        OF   THE    APPLICANTS   THROUGH   THEIR
                        RESPECTIVE MOBILE PHONES.

Annexure-A12(a)         A TRUE COPY OF INDIAN AUDIT & ACCOUNTS

DEPARTMENT (ASSISTANT ACCOUNTS OFFICER AND AUDIT OFFICER) RECRUITMENT RULES 2016.

Annexure-A12(b) A TRUE COPY OF DEFENCE ACCOUNTS DEPARTMENT, ASSISTANT ACCOUNTS OFFICERS, RECRUITMENT RULES, 2015.

Exhibit-P3 A TRUE COPY OF THE INTERIM ORDER IN O.A.NO.167/2019 DATED 06.01.2020 AS DOWNLOADED FROM THE WEBSITE OF THE LEARNED CAT.

2025:KER:32916 OP(CAT) No.37 of 2022 -:18:- Exhibit-P5 A TRUE COPY OF THE REPLY STATEMENT FILED BY THE OFFICIAL RESPONDENTS IN JUNE, 2019.

Exhibit-P5(a) A TRUE COPY OF THE REPLY STATEMENT FILED BY THE OFFICIAL RESPONDENTS IN FEBRUARY, 2020.

Exhibit-P6 A TRUE COPY OF THE REPLY STATEMENT FILED BY RESPONDENTS 9 TO 12 DATED 29.11.2019.

Exhibit-P7 A TRUE COPY OF THE REJOINDER FILED BY THE PETITIONERS ALONG WITH ITS ANNEXURES DATED 25.12.2019.

Annexure-A13 A TRUE COPY OF THE OFFICE MEMORANDUM NO.AB.14017/48/2010-ESTT(RR) DATED 31.12.2010 ISSUED BY THE DOPT.

Annexure-A14 A TRUE COPIES OF LETTERS ISSUED BY THE DOPT UNDER NO.35034/7/97-ESTT(D) DATED SEPTEMBER 15, 2005 AND NO.35035/7/97- ESTT(D) DATED FEBRUARY 16, 2005.

Exhibit-P8 A TRUE COPY OF THE REPLY FILED BY THE RESPONDENTS 6 TO 8 DATED 09.02.2020.

Exhibit-P9 A TRUE COPY OF THE ARGUMENT NOTE FILED BY THE PETITIONERS DATED 19.03.2021.

Exhibit-P10 A TRUE COPY OF THE DEPARTMENT OF POSTS JUNIOR ACCOUNTS OFFICER GROUP'B' NON- GAZETTED RECRUITMENT RULES, 2002.

Exhibit-P11 A TRUE COPY OF THE METHOD TO BE ADOPTED WHILE FILLING UP THE VACANCY BY SELECTION METHOD, AS PUBLISHED IN THE SWAMY'S COMPILATION OF SENIORITY AND PROMOTION.

Exhibit-P12 A TRUE COPY OF THE COMMUNICATION BEARING NO.CS/6-5/MISC/2022 DATED 22.04.2022.

2025:KER:32916 OP(CAT) No.37 of 2022 -:19:- Exhibit-P13 A TRUE COPY OF MISCELLANEOUS APPLICATION NO.288/2021 FILED BY RESPONDENTS 1 TO 5, PRODUCING A COPY OF THE ORDER OF LEARNED CAT, PRINCIPAL BENCH IN PT NO.155/2018 IN O.A.515/2018 DATED 17.8.2018.

RESPONDENT EXHIBITS Exhibit R1(a) TRUE COPY OF LETTER F.NO.

303(01)/2019/PA(LEGAL) DATED 15.06.2022 ISSUED BY POSTAL DIRECTORATE.

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