Central Administrative Tribunal - Ernakulam
Suni P.M vs Union Of India on 15 June, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 881 of 2011
Friday, this the 15th day of June, 2012
CORAM:
HON'BLE Mr.JUSTICE P.R.RAMAN, JUDICIAL MEMBER
HON'BLE Mr. K.GEORGE JOSEPH, ADMINISTRATIVE MEMBER
1. Suni P.M., aged 37 years, W/o. Shaji K.E.,
Sorting Assistant, Head Record Office,
Railway Mail Service, Ernakulam Division,
Kochi-16, residing at House No. 3/798,
Chakkarayidukku, Mattancherry, Cochin-682 002.
2. V.V. Shibi, aged 32 years, W/o. Praveen K.,
Office Assistant, Office of the Superintendent,
Railway Mail Services, Railway Mail Service,
Ernakulam Division, Cochin 682 011.
3. Prakash P. Bhaskaran, aged 38 years,
S/o. P. Bhaskaran, Office Assistant,
Office of the Superintendent of Post Offices,
Pathanamthitta Division, Pathanamthitta,
Residing at Panakkal House, Mekozhoor P.O.,
Pathanamthitta - 689 678.
4. Abeeda Beevi. A., aged 37 years, D/o. Appakutty,
Postal Assistant, Office of the Superintendent of
Post Offices, Pathanamthitta Division, Pathanamthitta,
Residing at Rajeev Sadanam, Kallarakadave,
Pathanamthitta PO.
5. Prathap Krishnan V., aged 32 years, S/o. P. Vijayakrishnan,
System Administrator, Office of the Superintendent of
Post Offices, Pathanamthitta, Pin-689 645,
Residing at Lakshmipuram, Aranmula PO, Pin - 689 533.
6. Seeja John, aged 30 years, W/o. Eji P. George,
Postal Assistant, Sasthamcota,
Residing at Thusharam, Chittumala,
East Kallada, 681 502, Kollam.
7. Sabida S. Pareeth, aged 32 years, D/o. Muhammed A.,
Postal Assistant, Trikunnapuzha, Post office 690 515,
Residing at Kochuveetil, (Muzhangodil),
Karthikapalli-690 516. ... Applicants
(By Advocate Mr. T.C.Govindawamy)
versus
1. Union of India, represented by the Secretary,
to the Government of India and Director General of Posts,
Ministry of Communications & Information Technology,
Department of Posts, Dak Bhavan, Sansad Marg,
New Delhi - 110 001.
2. The Chief Postmaster General, Kerala Circle,
Thiruvananthapuram-695 033.
3. The Assistant Director (Rectt.),
Office of the Chief Postmaster General,
Kerala Circle,
Thiruvananthapuram-695 033. ... Respondents
(By Advocate Mr. Sunil Jacob Jose, SCGSC)
The application having been heard on 12.06.2012, the Tribunal on
15.06.12 delivered the following:
O R D E R
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER The applicants in this O.A are candidates for promotion to the post of Inspector of Posts against 66.66% vacancies meant for selection through a Limited Departmental Competitive Examination. This O.A has been filed by them challenging the decision taken by the respondents not to conduct the Inspector of Posts examination in the year 2011. They have sought following reliefs :
"(i) Call for the records leading to the issue of Annexure A1 and quash the same.
(ii) Declare that the assessment of vacancies and the contention in Annexure A1 that there are no vacancies in Kerala circle is incorrect and arbitrary and therefore unconstitutional.
(iii) Direct the respondents to re-assess the vacancies in the cadre of Inspector, Posts against 66.66% quota for the examination 2011, taking into consideration the existing and the anticipated vacancies up to 31st December, 2012 and direct further to consider and promote the applicants against these vacancies.
(iv) Declare that the scheme of surplus qualified Inspectors' Scheme would continue to be in force even for the examinations proposed to be conducted in terms of Annexure A3 and the subsequent orders relating thereto and direct the respondents accordingly.
(v) Declare that the applicants are entitled to be considered for promotion to the post of Inspector of Posts as notified in Annexure A3 and subsequent orders thereon and granted the consequential benefit of posting either in Kerala circle or in other circles as per surplus qualified Inspector Scheme which was in force as on the date of the notification and direct the respondents accordingly.
(vi) Award costs of and incidental to this application.
(vii) Pass such other orders or directions as deemed just fit and necessary in the facts and circumstances of the case."
2. The applicants contended that Annexure A-1 order to the extent it says that no examination would be conducted in Kerala Circle for promotion to the post of Inspector of Posts is arbitrary and discriminatory. The contention in the said order that there are no vacancies in the cadre of Inspector of Posts in Kerala Circle is factually incorrect. The persons who were appointed against surplus vacancies in other circles can be transferred only against the direct recruitment quota and not against the promotion quota. The ratio of 2:1 is to be applied against the vacancies and not against posts as was done by the respondents. The Department of Personnel and Training O.M. No. AB.14017/2/1997-Estt.(RR)Pt. dated 19.01.2007 (Annexure A-6) states that the ratio is to be operated only against annual vacancies and not against posts. The law in this regard is settled by the Apex Count in the case of State of Punjab and Others vs. Dr. R.N. Bhatnagar and Another, 1999 (2) SCC 330 and All India Federation of Central Excise vs. Union of India and Others, 1999 (3) SCC 384 etc. The latest decision of this Tribunal in O.A. No. 103/2011 dated 31.10.2011 followed the judgements of the Apex Court as above. The respondents are bound to reassess the vacancies and conduct the examination afresh for the year 2011.
3. The respondents in their reply statement submitted that while assessing the vacancies for conducting the examination in the year 2011, they were not aware of Annexure A-6 O.M. dated 19.01.2007 rescinding the instructions contained in para 2 of OM No. AB-14017/2/97-Estt.(RR) dated 25.05.1998 reproduced in para 1 therein. The Postal Directorate, New Delhi, has now informed them that the existing Recruitment Rules are being revised in consultation with DoP&T and UPSC in tune with the instructions contained in Annexure A-6 OM and that pending amendment to Recruitment Rules, the posts may be filled up as per the existing Recruitment Rules. Therefore, it is evident that the procedure adopted by the respondents for calculating the vacancies is as per the extant instructions on the subject. The respondents admitted that "It is true that as per instructions contained in A-6 OM, the ratio of vacancies between direct recruits and promotees is to be operated only against annual vacancies and not against posts." But in the absence of any amendment to the existing Recruitment Rules pursuant to Annexure A-6 OM, the procedure followed in calculation of vacancies was not irregular. The revised procedure of calculation of vacancies will be adopted on receipt of amended Recruitment Rules. Therefore, the O.A. is liable to be dismissed.
4. We have heard Mr. T.C. Govindaswamy, learned counsel for the applicant and Mr. Sunil Jacob Jose, learned SCGSC appearing for the respondents and perused the records.
5. As per the instructions contained in O.M. dated 19.01.2007 (Annexure A-6) , the ratio of vacancies between direct recruits and promotees is to be operated only against annual vacancies and not against posts. In the instant case, the respondents have assessed the vacancies as per the extant Recruitment Rules. i.e. against posts and therefore, the calculation of vacancies was not regular. In fact, the O.M. No. AB.14017/2/1997-Estt.(RR) Pt. Dated 19.01.2007 is based on the law settled by the Apex Court in State of Punjab and Others vs. Dr. R.N. Bhatnagar and Another, 1999 (2) SCC 330 and further reiterated in All India Federation of Central Excise vs. Union of India and Others, 1999 (3) SCC 384. The law as declared by the Hon'ble Supreme Court has been followed by this Tribunal in the order dated 31.10.2011 in O.A. No.103/2011. The relevant part of the said order is reproduced as under:
"5. We have heard the parties. No doubt, the argument of the learned counsel for the applicant, Mr. T.C. Govindaswamy that a Recruitment Rules cannot be amended by any executive order in the form of instruction or memorandum issued, legally hold as valid. But, how Annexure A-1 Recruitment Rules should be understood in the light of the Apex Court decision arise for consideration. The relevant rule namely Punjab Medical College Education Service Class -I Rules, which came up for interpretation in (1999) 2 SCC as follows:-
" (9) Method of appointment-
(d) In the case of Professors:
(i) 75 per cent posts by promotion from amongst
the Additional Professors, or where Additional Professors are not available, from amongst the Associate Professors, or, where Associate Professors are not available, from amongst the Assistant Professors, or by transfer of officials already in the service of the Government of India, or the State Government;
(ii) 25 per cent posts by direct recruitment"
[Emphasis given by us] Thus, exactly the same position emerged under Rule 9 as quoted above for consideration. The Hon'ble Supreme Court held that though the word "post" is used in Rule 9 of the Rules, it cannot be said that it must necessarily refer to total posts in the cadre and not to vacancies. It is obvious that recruitment to fill up the vacancies as may be existing from time to time in the cadre is controlled by the quota or percentage of posts earmarked for promotees as compared to direct recruits. If we understand the present rule also in the same manner as laid by them, it cannot be necessary that it refers to the total cadre and not the vacancies. There is another reason why the recruitment should be based on number of vacancies. It is clearly clarified in Bhatnagar's case in para 11, page 342 the Apex Court held as follows:-
"11. On the other hand, the situation which has fallen for our consideration in the present case in the light of Article 16(1) is squarely covered by a decision of this Court in Paramjit Singh case as clarified by a latter decision in the very same case reported in Paramjit Singh. In the aforesaid main case, D.A. Desai, J., speaking for a Bench of two learned Judges of this Court, had to consider in para 11 of the Report a recruitment rule which permitted fixed percentage of posts to be filled up in the given cadre from two different sources, namely, promotees and direct recruits. Rule 6 of the Punjab Police Service Rules, 1959 which came up for consideration in that case provided for a method of recruitment from two different sources, i.e., 80% by promotion from the rank of Inspectors and 20% by direct recruitment. Examining the working of the aforesaid quota rule for recruitment in the light of the relevant rotational scheme of vacancies in the cadre to which such recruitment was to be made, the following pertinent observations were made in para 11 of the Report (SCC p.
485).
"11. Where recruitment to a cadre is from two sources and the Service Rules prescribe quota for recruitment for both sources a question would always arise whether the quota rule would apply at the initial stage of recruitment or also at the stage of confirmation. Ordinarily, if quota is prescribed for recruitment to a cadre, the quota rule will have to be observed at the recruitment stage. The quota would then be correlated to vacancies to be filled in by recruitment but after recruitment is made from two different sources they will have to be integrated into a common cadre and while so doing, the question of their inter se seniority would surface."
6. As a matter of fact, the Supreme Court has referred to an earlier decision reported in Paramjit Singh case in 1983 AIR 314 and the relevant para from Paramjit Singh case is quoted in the judgment as above noticed. Subsequently, in the decision reported in 1999 SCC 384 para 13, it has been reiterated by Apex Court as follows:-
"13. Reliance by the petitioners is placed upon R.K. Sabharwal case. That case deals with the principle that the posts vacated by an officer recruited from the SC/ST category must be filled in only by the same reserved category. This is because of the special provision in Article 335 of the Constitution of India relating to adequate representation of the SCs/STs in the services. The birthmarks thee remain even on promotion in as much as a particular number of posts in the promotional category are reserved to be filed in only from among SCs/STs. On the other hand, so far as a normal quota rule between two feeder channels for recruitment or promotion is concerned, be it between direct recruits and promotees or promotion by a quota between different feeder groups (as in the case before us), the relevant precedents are Paramjit Singh Sandu v. Ram Rakha Mal and State of Punjab v. Dr. R.N. Bhatnagar. In Paramjit Singh case which related to recruitment from among promotees and direct recruits and promotees were treated as a rule of reservation, then because of the frequent retirements of the promotees who were generally closer to retirement, most vacancies in the promotional posts would repeatedly go to the aged promotees leaving little scope for direct recruitment. At p. 196, the learned Judge clarified as follows: (SCC para 6).
"What this Court meant while saying that when a quota rule is prescribed for recruitment to a cadre, it meant that quota should be corelated to the vacancies which are to be filled in. Who retired and from what source he was recruited may not be very relevant because retirement from service may not follow the quota rule"
The learned Judge further pointed out : (SCC p. 196, para 6) "Promotees who come to the service at an advanced age may retire early and direct recruits who enter the service at a comparatively young age may continue for a long time. If, therefore, in a given year larger number of promotees retire and every time the vacancy is filled in by referring tot he source from which the retiring person was recruited, it would substantially disturb the quota rule itself. Therefore, while making recruitment quota rule is required to be strictly adhered to."
7. From the above discussion, it can be seen that if as contended by the learned counsel for the applicant, the word "post" is interpreted as number of posts available and not number of vacancies, then it will be opposed to constitutional scheme under Article16(4) as held in Bhatnagar's case. Rule 9 will have to be interpreted, if possible, consistent with the constitutional scheme and save it from the vires of being violative of the Constitution. The Supreme Court in its judgment said that the word "post" cannot be understood to mean the number of posts available, but it has to be understood that the vacancies available and in the light of the same, we have no hesitation to hold for the purpose of recruitment to the post of Upper Division Clerk from the earmarked quota, the 25% from LDC is to be with reference to the number of vacancies to be filled up. This position has been clarified by the O.M at Annexure R- 5(a). In the above facts and circumstances, it cannot be said that the Recruitment Rules to the post of UDC from against 25% quota available for the LDC based on number of vacancy is in any way arbitrary, discriminatory and violative of the Constitutional guarantees under Article 16 of Constitution of India rather than it is as understood and clarified in 1999 (2) SCC 330.
Thus, the legal issue in this O.A is settled that the ratio of vacancies between direct recruits and promotees is to be operated only against annual vacancies and not against posts. Evidently, the respondents have not assessed the vacancies in the cadre of Inspector of posts in Kerala Circle correctly, i.e. against vcancies. The correct method of calculation of vacancies as per the say of the respondents is to be adopted on receipt of the amended Recruitment Rules. But legally this position is not tenable. When Hon'ble Supreme Court has declared the law in this regard, the effect of amendment to Recruitment Rules already came into force. Strictly speaking, there is no need to amend the Recruitment Rules to adopt the correct method of vacancies as per the law declared by the Hon'ble Supreme Court. Therefore, the instant O.A succeeds.
6. The Annexure A-1 order No. Rectt/48-3/2010 dated 01.08.2011 is quashed. The respondents are directed to reassess the vacancies in the cadre of Inspector of Posts against 66.66 % quota for the examination, 2011 as per the scheme relating to the Inspector of Posts examination in the light of the ruling of the Hon'ble Supreme Court. The applicants are entitled to be considered for promotion to the post of Inspector of Posts, if they are eligible as per the notification at Annexure A-3 and subsequent orders thereon and for consequential benefits as per rules. The examination should be conducted as early as possible, at any rate within a period of 4 months from the date of receipt of a copy of this order. No costs.
(Dated, the 15th June, 2012)
K GEORGE JOSEPH JUSTICE P.R.RAMAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
cvr.