Central Administrative Tribunal - Ernakulam
P. Prahladan vs Superintendent Of Post Offices And Ors. on 19 June, 2002
Equivalent citations: 2003(2)SLJ432(CAT)
ORDER G. Ramakrishan, Member (A)
1. The applicant was recruited under Sports quota and was posted as Extra Departmental Messenger, Medical College Post Office, Alappuzha. In the Select List published by A-2 memo dated 18.1.96 the applicant was at Sl. No. 3. He was allotted to Alappuzha division by A-2 letter and later re-allotted to Alappuzha Sub Division by A-3 letter date 22.1.96. Accordingly he was appointed as E.D. Messenger, Alappuzha-5 w.e.f. 5.3.96 as per A-4 memo dated 26.3.96. The applicant assumed charge as E.D. Messenger on 29.1.96 and continued in the post till the post was abolished in January, 1998. On abolition of the post he was appointed as Extra Departmental Delivery Agent. Avalookunnu Sub Office on 27.1.98 where he was continuing even at the time of filing of this O.A. The applicant claimed that he was selected for appointment as E.D. Agent for eventually absorbing him under Group-C under 5% vacancies set apart for Sports quota. The applicant stated that the Kerala Postal Sports Board decided to call for applications from meritorious sportsmen of Foot ball, Volley ball and Kabaddi for eventually absorbing in Group-C and D posts under the Department of Posts in terms of Govt. of India, Department of Personnel and AR O.M. dated 4.8.80 and Department of Personnel and Training O.M. dated 21.3.91 (Annexure A-5).The first respondent by A-9 memo dated 6.1.98 called for information from the applicant, 5th respondent and two other E.D. Agents regarding their performance in the AH India Postal Meets/Nationals. According to the applicant the 5th respondent was recruited outside the Sports Quota and she having no preferential certificates indicated in A-8 dated 4.5.95 was not eligible to be considered for regular appointment to Group-C or D against vacancies set apart for Sport quota and in relaxation of the respective Recruitment Rules. However, pursuant to the Director General of Posts letter dated 19.6.95 the Circle Relaxation Committee by A-10 memo dated 29.2.2000 approved the appointment of 3 E.D. Agents including the 5th respondent as Postman and the applicant and another E.D. Agent for appointment as Group-D. The applicant was directed to produce his original documents, etc., for appointment against Group-D Cadre before the 1 st respondent as per A-11 letter dated 7.3,2000. The applicant filed A-12 representation to the second respondent and the first respondent. Meanwhile the applicant was served with A-13 memo dated 14.3.2000 allotting him to the Alappuzha Sub Division Unit for appointment to the Cadre of Group-D in the existing vacancy. He was served with A-14 letter dated 27.3.2000 rejecting his A-12 representation. According to the applicant the action of the respondents 1 and 2 in approving the appointment of the 5th respondent to the cadre of Postman overlooking the superior claim of the applicant was manifestly illegal, arbitrary, discriminatory and was violative of Articles 14 and 16(1) of the Constitution of India. He claimed that he completely satisfied the educational qualification for appointment to the cadre of Postman and he had a preferential right for appointment. According to him the vacancy of Postman had been wrongly allotted to the 5th respondent and the reply given to the applicant that there was no vacancy of Postman under Sports Quota was illegal and arbitrary. He sought the following reliefs through this O.A.:
(i) To call for the records relating to Annexure A-10 and to set aside the same to the extent it appoints and approves the appointment of the 5th respondent to the cadre of Postman and also set aside Annexure A-14 letter dated 27.3.2000.
(ii) To issue appropriate direction of order directing the respondents 1 and 2 to appoint the applicant to the cadre of Postman in the place of the 5th respondent considering his qualification and superior preferential right for appointment under Sports Quota in terms of Annexure A-8 O.M. dated 4.5.95.
(iii) To declare that the 5th respondent, who has no preferential qualification for appointment to Group-C and D under Sports Quota in terms of Annexure A-8 in relaxation of the Recruitment Rules, is not entitled to be considered under Sports Quota on the basis of performance in the Postal Departmental Athletic Meets.
(iv) To grant such other reliefs which this Hon'ble Tribunal may deem fit, proper and just in the circumstances of the case.
and
(v) To award costs to the applicant.
2. Respondents 1 to 4 filled reply statement resisting the claim of the applicant. They submitted that in the process of selection though the applicant and the 5th respondent were having the same educational qualifications, the 5th respondent was considered for the post of Postman after considering her excellence in sports after her appointment as E.D. Agent. In the case of the applicant his achievements after his appointment as E.D. Agent were not upto the mark as he could come out successful only in one event and in all other events he had only participated without any achievements. Further, as there were only 3 vacancies of Postman against 5 candidates the best 3 candidates including the 5th respondent were selected for the post of Postman and the remaining two including the applicant were selected to the post of Group-D. They further submitted that as per the extant orders Head of Circles were delegated with powers to make recruitment of eligible outstanding sports persons in Group-C and Group-D posts against direct recruitment quota and appointment of E.D. Agents who had represented Postal P & T Teams in the National Tournaments in Group-C and Group-D posts. This could be done only upto a maximum of 5% of vacancies under direct recruitment quota. Relaxation recruitment under sports quota was not aimed at the improvement of any class of Government servants but was intended for the promotion of sports activity in the department. As such in the matter of promotion excellence in performance in sports was the criterion and not the fact that an E.D. Agent belonged to sports quota or an outsider. The extent orders did not provide for any special preference or consideration to be shown to an E.D. Agent recruited under sports quota over another E.D. Agent recruited in the normal course while considering their case for promotion under relaxed norms. The applicant herein had no preferential superior right over the 5th respondent for appointment to the cadre of Postman instead of Group-D and and the O. A. was liable to be dismissed.
3. The 5th respondent filed separate reply statement. According to her the primary question involved in the O.A. was with regard to the legality of A-10 and A-14. Regarding the applicant's contention that appearance and success in the all India or Kerala Postal Sports Meets are not enumerated for preference in A-5 or A-8 and hence it was hot permissible to give preference to 5th respondent, she submitted that though Clause 2(C) of A-5 permitted consideration of individuals already in Government service it did not relate to absorption from among departmental candidates and therefore did not in so many words take into its compass departmental sports meets at State and National level. Being a beneficial provision, A-5 and A-8 required a meaningful construction which was rightly done by the Department's Circle Relaxation Committee. The applicant did not have any legal or statutory right to have the relaxation in a particular manner. The Circle Relaxation Committee had rightly found the 5th respondent more meritorious than the applicant for the reasons stated in the reply statement of the official respondents. The applicant's participation as a team member could not bear a straight cut comparison with the individual efforts made by the 5th respondent. Further after subjecting himself to the selection procedure the applicant could not challenge the same, A-14 could not be said to be illegal. The O.A. was without merits and was liable to be dismissed with cost.
4. Applicant filed rejoinder. He submitted that the reply statement filed by the first respondent on behalf of the respondents 2 to 4 could not be accepted and was liable to be ignored for non-compliance of the CAT Procedure Rules 1987 which mandated that the documents referred to in Sub-rule (2) should also be filed along with the reply. As the Govt., of India (Authorisation of officers for verification of pleadings and other documents to be filed in the CAT) Rules, 1993, notified by Govt. of India. Department of Personnel and Training on 28.9.93 published in the Gazette of India on the same date, authorised only Group-A Officer in any Ministry/Department of the Govt. of India or Group-A Officer in any non-Secretariat office of the Govt. of India to sign all pleadings and other documents to be filed for and on behalf of the Union of India before the Tribunal and as the reply statement in this O. A. had been filed by the Superintendent of Post Offices. Alappuzha who was a Group-B Officer and no authorisation in writing had been produced along with the reply statement showing that he was duly authorised by the other respondents including Union of India to file the reply statement on their behalf, the reply statement was liable to be rejected. According to the applicant the statement that there were no vacancies of Postman that could be earmarked under sports quota within the prescribed limit of 5% in the circle was prima facie untrue and was hence denied. It was submitted that as per A-10 the 5th respondent was approved by the Circle Relaxation Committee for appointment to the post of Postman in Alappuzha Division along with two others in Kottayam and Palakkad divisions. Therefore, the contention that there were no vacancies of Postman in Alappuzha division under sports quota for the year 2000 as well as under outsider quota was opposed to facts and hence denied.
5. Heard learned Counsel for the parties.
6. The learned Counsel for the applicant submitted that the recruitment under Sports Quota were governed by the instructions of the Government of India contained in A-5, A-6, A-7 and A-8. According to him the respondents' stand that even though the applicant and the 5th respondent had the same educational qualifications to the post of Postman, the 5th respondent was considered for appointment under Sports Quota on the basis of her performance in Sports after her appointment as an E.D. Agent was not correct and was against A-7. According to A-7 O.M., an E.D. Agent could be considered for appointment under Sports Quota as an outsider if he was otherwise eligible. It was also provided that in the matter of concession for outstanding Sportsmen, EDAs would have to be considered along with outsiders only. According to A-8 O.M. dated 4.5, 1995, and as per the order of preference for appointment of meritorious sports persons to Group-C and D posts shown therein applicant had a superior claim. While the applicant had represented the Kerala State as well as MG University in national level games, the 5th respondent did not come in any of the categories mentioned in A-5 or A-8. In fact even her initial appointment as E.D. Agent was not under the sports quota. Therefore the action of the first respondent in selecting the 5th respondent over the applicant considering her alleged excellence in sports in the Postal meets after her appointment as E.D. Agent against the vacancy of Postman in Alappuzha Division, was absolutely illegal, arbitrary and against A-5, A-7 and A-8. Further the applicant was a member of the Kerala Postal Circle Kabaddi team which won 2nd place in the XII All India Postal Kabaddi Tournament held at Kollam from 21 st to 24th October, 1997. Further the applicant was a member of the Kerala Postal Circle Kabaddi team which participated in the All India Postal Kabaddi Tournaments in the years 1996, 1997, 1998 and 1999. Tbe above team was placed at 2nd position in the years 1996 and 1997. The team won the 3rd place in the tournament for the year 1999 also. Therefore even in case the excellence in sports after the appointment as E.D. Agent was to be considered, the performance of the applicant could not be said to be not upto the mark. The statement that the best 3 candidates including the 5th respondent were selected for the post of Postman was opposed to facts and was totally unsupportable. It was submitted that the 5th respondent was already 36 years of age, and as she would have to participate in sports events as and when required by the Department at least for a period of 5 years, and as she was an athlete her age would definitely play a vital role in her performance on the field in the next five years. Therefore, the contention of the respondents that relaxation recruitment under the sports quota was intended for promotion of sports activity in the Department did not hold good. He further submitted that the selection and appointment to the cadre of Postman under sports quota was not by promotion from among E.D. Agents and was to be made by direct recruitment. The 5th respondent did not satisfy the age condition for direct recruitment. As per A-7 no preference could be given to any E.D. Agent. He could only be considered along with outsiders under sports quota for which the order of preference had been laid down in A-8. Respondents 1 and 2 and the Circle Relaxation Committee could not ignore the eligibility conditions as laid down in A-5 or the preference indicated in A-8. Hence, the applicant was entitled for the reliefs sought for and the O.A, was liable to be allowed. He cited the following ratio of the judgments of the Hon'ble Supreme Court in support of his submissions:
(i) Dr. Krishna Chandra Sahu and Ors. v. State of Orissa and Ors. (1995) 6 SCC 1 = 1996(1) SLJ 117 (SC).
(ii) Raj Kumar and Ors. v. Shakti Raj and Ors., (1997) 9 SCC 527. (iii) Radhey Shyam Singh and Ors. v. Union of India and Ors. (1997) 1 SCC 60=1997(2)SLJ14(SC).
7. The learned Counsel for the respondents 1 to 4 took us through the reply statement and reiterated the points made in the reply statement.
8. The learned Counsel for the 5th respondent referred to A-12 representation of the applicant and submitted that A-14 reply given to the applicant should be considered with reference to the representation submitted by the applicant and in that event no infirmity could be found in A-14. The applicant having subjected himself to the selection and the conditions under which the selection was being done, could not, on completion of the selection, finding that he was not selected, challenge the very same selection.
9. We have given careful consideration to the submissions made by the learned Counsel for the parties and the pleadings of the parties and have perused the documents brought on record.
10. We find that the applicant has urged this Tribunal to disregard the reply statement filed by the 1 st respondent on behalf of the other respondents. According to him the reply statement filed by the 1 st respondent on behalf of the other respondents. According to him, the reply statement filed by the first respondent on behalf of respondents 2 and 3 without enclosing their authorisation to file the reply statement on their behalf and the first respondent not being a Group-A officer who could file a reply statement on behalf of the 4th respondent the reply statement could not be accepted. He has relied on Rule 12(3) of CAT (Procedure) Rules 1987 and the order of the Allahabad Bench of the Tribunal in Ram Rakha v. Union of India, 1988 (8) ATC 16. We find force in the submissions made by the learned Counsel for the applicant. The respondents have not denied the submission that the first respondent who had filed the reply statement was not a Group-A Officer. As he is not a Group-A officer he cannot file a reply statement on behalf of the Union of India, the 4th respondent herein. We also note that the first respondent had not advanced any plea to the issue raised in the rejoinder filed by the applicant wherein he had urged this Tribunal to reject the reply statement filed by the first respondent on behalf of the respondents. In Ram Rakha v. Union of India (supra) it has been held by the Allahabad Bench of this Tribunal:
In case the respondents in the Original Application are not able to sign the pleading, they shall authorise some responsible officer of the department concerned in writing to sign and verify the reply on their behalf and such authorisation should be filed along with the reply to indicate that the person filing the reply has been duly authorised by the competent authority." Here except an averment that the first respondent had been authorised no authorisation from respondents 2 to 4 had been filed.
The above would lead us to conclude that the respondents 2 to4 have chosen not to file any reply statement and hence have nothing to say regarding the applicant's claim.
11. In A-10 impugned order, while communicating the approval of the Circle Relaxation Committee it is stated that the same had been issued persuant to Director General, Department of Posts, New Delhi's letter No. 12-7/95-WL /Sports dated 19.6.95. But the respondents had not produced this letter dated 19.6.95. In the reply statement the following had been averred.
It is humbly submitted that as per the extant orders. Heads of Circles are delegated with powers to make recruitment of eligible outstanding sports persons in Group-C and Group-D posts against direct recruitment quota and appointment of Extra Departmental Agents who have represented Postal P&T Teams in the National Tournaments in Group-C and Group-D posts. This can be done only upto a maximum of 5% of vacancies under direct recruitment quota.
However, the extant orders referred to above had also not been produced. The applicant is relying on A-8 O.M. dated 4.5.95 issued by the Govt. of India, Department of Personnel and Training in support of his submissions. According to him the order of preference for recruitment to Sports quota had been given in the said O.M. and the respondents herein could not consider the respondent No. 5 as she would not fall in any of the preferences mentioned in A-8. From the proximity of the dates we presume that the O.M. dated 4.5.1995 had been circulated by the Director General, Department of Posts, New Delhi vide letter No., 12-7/95-WL/Sports dated 19.6.95. In this view of the matter, we are of the considered opinion that the Circle Relaxation Committee could not go beyond the order of preferences as contained in A-8 O.M. dated 4.5.95.
12. Further, even as per the reply statement extracted by us as above, the E.D. Agents who had represented P and T Teams in National Tournaments only could be considered for recruitment against Group-C and D posts. Admittedly all the meets in which the fifth respondent had participated were not National meets. Only one out of the three was of an All India nature even though that was also confined to Postal Department. As against this two of the four meets in which the applicant was a team member were All India meets and the other two were also of an All India nature but confined to Postal department. Regarding the argument submitted by the respondents for selecting the 5th respondent that her performance was superior to that of the applicant in the Sports field after their appointment as E.D. Agents, we do not propose to evaluate their comparative achievements as the same is not generally the scope of judicial review. As already noted by us in A-8 order, tournaments at the circle level had not been given any priority for selection against Sports quota.
13. We are also unable to accept the 5th respondent's plea that being a beneficial provision, A-5 and A-8 required meaningful construction. The recruitment against Sports quota itself is a special provision. It is to give encouragement to Sports activities by way of giving incentive to Sports persons who achieve laurels at International, National, University etc. levels in the form of recruitment to posts in the different departments under the Central Government. This would mean that this is an exception to the general rule of recruitment to the posts under the Union by open competition. In our view such recruitments ought to be made strictly in accordance with the rules and when the rules specify the categories of Sportsmen who would be eligible for being considered against such special recruitment, no subordinate authority could deviate and form their own norms for recruitment against such vacancies. In this view of the matter we find force in the applicant's contention that the Circle Relaxation Committee could not adopt norms different from what is laid down by the Government.
14. In Dr. Krishna Chandra Sahu and Ors. v. State of Orissa and Ors., (supra) Hon'ble Supreme Court held:
31. Now, power to make rules regulating the conditions of service of persons appointed on Government posts is available to the Governor of the State under the proviso to Article 309 and it was in exercise of this power that the present rules were made. If the statutory rules, in a given case, have not been made, either by Parliament or the State Legislature, or, for that mater, by the Governor of the State, it would be open to the appropriate Government (the Central Government under Article 73 and the State Government under Article 162) to issue executive instructions. However, if the rules have been made but they are silent on any subject or point in issue, the omission can be supplied and the rules can be supplemented by executive instructions (See Sant Ram Sharma v. State of Rajasthan, (AIR 1967 SC 1910).
32. In the instant case, the Government did neither issue any administrative instruction nor did it supply the omission with regard to the criteria on the basis of which suitability of the candidates was to be determined. The members of the Selection Board, on their own decided to adopt the confidential character rolls of the candidates who were already employed as Homeopathic Medical Officers, as the basis for determining their suitability.
33. The members of the Selection Board or for that matter, any other Selection Committee, do not have the jurisdiction to lay down the criteria for selection unless they are authorised specifically in that regard by the Rules made under Article 309. It is basically the function of the rule making authority to provide the basis for selection. This Court in State of A.P. v. V. Sadanandam, observed as under:
We are now only left with the reasoning of the Tribunal that there is no justification for the continuance of the old rule and for personnel belonging to other zones being transferred on promotion to offices in other zones. In drawing such conclusions, the Tribunal has travelled beyond the limits of its jurisdiction. We need only point out that the mode of recruitment and the category from which the recruitment to a service should be made are all matters which are exclusively within the domain of the executive. It is not for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters to policy decision falling exclusively within the purviews of the executive." (Emphasis supplied)
34. The selection Committee does not even have the inherent jurisdiction to lay down the norms for selection nor can such power be assumed by necessary implication. In P.K. Ramachandra Iyer v. Union of India it was observed [(1984) 21 SCC 141].
"By necessary inference, there was no such power in the ASRB to add to the required qualifications. It such power is claimed, it has to be explicit and cannol be read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm."
35. Similarly in Umesh Chandra Shukla v. Union of India, (1985) 3 SCC 721 it was observed that the Selection Committee does not possess any inherent power to lay down its own standards in addition to what is prescribed under the rules. Both these decisions were followed in Durgacharan Mishra v. State of Orissa, and the limitations of the Selection Committee were pointed out that it had no jurisdiction to prescribe the minimum marks which a candidate had to secure at the viva voce.
15. Further we also find from A-7 O.M. dated 10.11.1989 that E.D. Agents will have to be considered for absorption against Group-C and Group-D vacancies along with outsiders only. When such is the case the norms to be adopted would also be those which arc applicable to outsiders. The Department at the Head of Circle level and the Circle Relaxation Committee cannot adopt norms which is different from what is laid down by the Government of India, Department of Personnel & Training. In our view such adoption, if permitted will lead to a situation where outsiders will be descriminated because they would not be able to participate in Postal Meets at all and hence will not get considered for sports quota recruitment.
16. In the A-12 representation submitted by the applicant to the second respondent the applicant had requested for appointment against the post of Postman instead of Group-D. In A-14 reply impugned herein it had been stated that there were no vacancies of Postman that could be earmarked for Sportsmen. Admittedly there were three vacancies of Postman and two vacancies of Group-D and the applicant and the 5th respondent were among E.D. Agents considered against these vacancies. So the submission that there were no vacancies against the quota earmarked for Sports persons is without any basis. On this ground A-14 has to be held as without application of mind and liable to be set aside and quashed.
17. In the light of the detailed analysis as above, we set aside and quash A-10 and A-14 giving liberty to the respondents to take action in accordance with the extant instructions and norms laid down by the Government of India for recruitment to fill up three posts of Postman and two posts of Group-D against Sports Quota.
18. The Original Application stands disposed of as above with no order as to costs.