Karnataka High Court
D.M. Nagesh And Ors. vs The Assistant Superintendent Of Post ... on 18 August, 2001
Equivalent citations: ILR2002KAR356, 2002(3)KARLJ209, 2002 AIR - KANT. H. C. R. 172
Author: R.V. Raveendran
Bench: R.V. Raveendran, K. Sreedhar Rao
ORDER R.V. Raveendran, J.
1. The petitioners claimed that they were appointed as Extra Departmental Agents (Packers) by the Post and Telegraph Department. The petitioners 1 to 3 claimed that they were so appointed on 29-11-1997 and 22-1-1997 on provisional appointment basis pending regular recruitment making it clear that such provisional appointment will not give rise to any claim of regular appointment.
2. The petitioners claimed that before their provisional appointment they had also worked as substitutes from time to time, from 1992, 1993 and 1991 respectively. The distinction between the substitute appointments and provisional appointments is well-recognised.
3. When an Extra Departmental Agent appointed by the department proceed on leave, such agent is permitted to make temporary arrangement by appointing any one of his choice as a substitute until he returns from leave. The substitute appointment is sporadic, depending on the period during which the regularly appointed employee is on leave for whatsoever reason. In fact having regard to the peculiar nature of the Extra Departmental Agents appointment, when they apply for leave, they have to give the name and particulars of the substitutes who will discharge their duties during the leave period. Such substitute appointments are not made by the department but by the Extra Departmental Agents themselves (subject to approval by the department). On the other hand, provisional appointments are made by the Department on the retirement of regular incumbents, pending regular recruitment. Such provisional appointees, appointed purely stopgap are continued until regular recruitment is made. Sometimes such provisional appointment becomes necessary where the permanent incumbent to the post is put off duty pending disciplinary proceedings. The appointment on provisional basis is governed by the following instructions contained in DGP and Ts letter dated 18-5-1979 read with circular dated 30-12-1999:
"(i) As far as possible, provisional appointments should be avoided. Provisional appointments should not be made to fill the vacancies caused by the retirement of Extra Departmental Agents. In such cases, the Appointing Authority should take action well in time before the retirement of the incumbent Extra Departmental Agent, to select a suitable successor.
(ii) Wherever possible, provisional appointments should be made only for specific periods. The appointed person should be given to understand that the appointment will be terminated on expiry of the specified period that he will have no claim for regular appointment. Where a new post is created or where an Extra Departmental Agent dies while in service or resigns from his post and it is not possible to make regular appointment immediately, a provisional appointment should be made for a specific period. The offer for appointment should be in the form annexed (Annexure-A).
(iii) Where an Extra Departmental Agent is put off duty pending departmental or judicial proceedings against him and it is not possible to ascertain the period by which the departmental/judicial proceedings are likely to be finalized, a provisional appointment may be made, in the form annexed (Annexure-B). It should be made clear to the provisionally appointed person that if ever it is decided to reinstate the previous incumbent, the provisional appointment will be terurinated and that he shall have no claim to any appointment".
4. The appointment of Extra Departmental personnel is peculiar to the Post and Telegraph Department. They are governed by the Posts and Telegraphs Extra Departmental Agents (Conduct and Service) Rules, 1964 ('PTEDA Rules' for short). The Supreme Court has noticed the position and status of these agents in Union of India v. Kameshwar Prasad, as under:
"2. The Extra Departmental Agents System in the Department of Posts and Telegraphs is in vogue since 1854. The object underlying it is to cater to postal needs of the rural communities dispersed in remote area. The system avails of the services of schoolmasters, shopkeepers landlords and such other persons in a village who have the faculty of reasonable standard of literacy and adequate means of livelihood and who, therefore, in their leisure can assist the department by way of gainful avocation and social service in ministering to the rural communities in their postal needs, through maintenance of simple accounts and adherence to minimum procedural formalities, as prescribed by the department for the purpose".
5. The department invited applications for recruitment to the posts of Extra Departmental Agents on 22-7-1998. The petitioners applied for the said posts, but were not selected. The persons who have better educational qualifications were selected. Petitioners are aggrieved. According to them the persons who were selected did not have any experience whereas they had considerable experience either as substitute workers or as provisional appointees in the Post and Telegraph and therefore, their experience ought to have been taken into account by providing adequate weightage. They submit that if such weightage had been given, they would have secured appointment instead of the persons who have actually been appointed. Therefore, they filed application before the Central Administrative Tribunal, Bangalore Bench ('CAT' in short) in O.A. Nos. 100, 112 and 101 of 1999 and sought a direction to the respondent to consider their cases for appointment to the post of Extra Departmental Packers in accordance with the Recruitment Rules, by giving preference/ weightage on account of the service rendered by them, without insisting upon SSLC as minimum qualification. They also sought setting aside the selection and appointment of the 2nd respondent in their respective application.
6. The petitioners strongly relied on the decision of a Full Bench of the Tribunal in G.S. Parvathi v. Sub-Divisional Inspector (Postal), 1992(21) ATC 13 (Tri.). The said decision held:
"Experience is undoubtedly a valuable qualification. A person having experience need not be initiated to the work, he is immediately a full performer. The value of experience is recognised in the timescale of pay; one becomes entitled to move every year to higher pay on account of experience gained by him. Experience also has been held to be a substitute for educational qualifications prescribed, in a number of decisions. One can easily come across the mention 'previous experience required' or 'previous experience desirable' in advertisements to posts. Previous experience is universally recognised as a valuable qualification. Various Benches of this Tribunal have in a catena of decisions held that previous experience should be given due weightage in the process of selection.
The apprehension that a provisional appointment may become automatically, on account of the weightage given to experience, permanent appointment is not justified, if the exact import to be given to the weightage for previous experience is well-understood. Weightage means only that some consideration has to be given to experience as an additional qualification. Previous experience is not to be the sole decisive factor in making selection. Only if it reduces to naught the other qualifications, of competing candidates the apprehension expressed that all provisional appointments would get practically converted into regular appointments would be justified. If experience is considered only as a qualification among others, a candidate with previous experience would be selected only all other things being equal, which will not occur always. It is also worth noting that there are other preferential categories referred to in Rule 6 of the Rules. It is for the selecting authority to assign its due place to each factor and to determine their relative importance while making selection. If a system of marks is allotted (sic adopted), previous experience will have to be allotted some percentage of marks along with other factors found to be relevant. The weightage to be given to previous experience will also depend on the quantum of experience. We are therefore of the firm view that weightage should be given to previous experience and that such experience shall be taken into account along with other relevant factors but will not operate as a sole decisive factor in the process of selection".
7. A two member Bench of the CAT, which heard the applications of the petitioners and connected cases felt that the decision of the Full Bench in G.S. Parvathi's case, supra, required reconsideration and therefore by order dated 9-11-1999 referred the following questions to the Full Bench of the CAT, for decision:
"(a) Whether in the light of the instructions regarding the method of recruitment issue by the department, the Tribunal can give directions to given weightage to an applicant for Extra Departmental Agent's post for the experience gained by him while working as Extra Departmental Agent on a provisional basis or as a substitute as has been done in G.S. Parvathi's case, supra?
(b) Whether the benefit of the instructions contained in DGP's letter dated 6-6-1988 can be claimed by an Extra Departmental Agent appointed either as a substitute or on a provisional basis on his/her completing continuous service of 240 days in a year?"
The Full Bench consisting of Chairman and four members considered the said question and by order dated 19/20-4-2000 answered both the questions in the negative. In the light of the answers of the Full Bench, the two member Bench of the Tribunal considered the applications of the petitioners and dismissed them by independent orders dated 27-4-2000 (Annexures-B, C and D). The Tribunal held that the respective second respondent in O.A. Nos. 100 and 101 of 1999 had secured more marks than the petitioners, and as petitioners were not entitled to any weightage, the petitioners could not challenge the selection and appointment of the respective second respondent. In O.A. No. 112 of 1999, the Tribunal held that even though 8th standard is the minimum qualification to the post, the preference of second respondent who had passed matriculation for appointment by taking his matriculation marks into account, instead of the petitioner who had not passed matriculation was not open to challenge.
8. Feeling aggrieved, the petitioners have filed these petitions for setting aside the order of the Full Bench dated 19/20-4-2000 insofar as the petitioners are concerned, and the consequential order passed by the Division Bench of the CAT dismissing their petitions in O.A. Nos. 100, 112 and 101 of 1999. The petitioners contend that Parvathi's case, supra, is correctly decided and the Full Bench of the Tribunal ougnt to have held that the petitioners were entitled to weightage. Alternatively it is contended that the Full Bench of the Tribunal ought to have held that the instructions contained in DGP's letter dated 6-6-1988 applied to them and they were entitled to be considered for regularisation on completing the service of 240 days in a year.
9. We have heard the learned Counsel for the petitioners and the learned Central Government Standing Counsel appearing for the department. The questions that were referred to by the two member Bench of the CAT to the Full Bench are the very questions that arise for consideration before us. We will now consider them:
Point (a) Re: Weightage
10. The recruitment of Extra Departmental Agents is governed by the PTEDA Rules. In Kameshwar Prasad's case, supra, the Supreme Court held that the said rules are a complete Code governing the service, conduct and disciplinary proceedings against Extra Departmental Agents. It is common ground that the said rules governing the recruitment of Extra Departmental Agents do not provide for any weightage for the previous service, either provisional or stopgap service.
11. In V.K. Sood v. Secretary, Civil Aviation, the appellant requested the Supreme Court to suitably modify the qualification prescribed by the Rules. The Supreme Court refused to do so holding that it is for the rule making authority or for the legislature to regulate the method of recruitment and prescribe qualifications etc. In Government of Andhra Pradesh and Anr. v. P. Ravinder and Ors., 1991(5) SLR 90 : 1991 Supp. (2) SCC 112 the Supreme Court considered the validity of the order of the Tribunal extending the benefit of weightage to selection to all categories while the State had granted the benefit of weightage by notification to only one specific category was considered. The Supreme Court held that the Tribunal had acted illegally and exceeded its jurisdiction by extending the benefit beyond what was specified in the notification. In J. Ranga Swamy v. Government of Andhra Pradesh, , the Supreme Court held that prescription of qualifications and eligibility criteria for filling any post, are not matters for Courts to consider and assess; and if the Appropriate Authority empowered to prescribe the qualifications and eligibility criteria has done it in accordance with law, Courts will not interfere with the same. It was also observed that if any one has any grievance in regard to prescription of qualifications/eligibility criteria, the remedy is, give a representation for review of the rules and not to approach the Courts. In B.N. Sinha v. Union of India, , the Supreme Court observed that the Courts and Tribunals should not attempt to legislate on a subject which was not its business; and neither the rule of statutory interpretation nor rules relating to interpretation of subordinate legislation, empower any judicial or quasi-judicial body to apply the law to a situation or object which was not completed by the legislature while making a law, or by the Government while making the rule.
12. In State of Madhya Pradesh v. Dharam Bir, , the Supreme Court observed thus:
"31. The plea that the Court should have a "human approach" and should not disturb a person who has already been working on this post for more than a decade also cannot be accepted as the Courts are hardly swayed by emotional appeals. In dispensing justice to the litigating parties, the Courts not only go into the merits of the respective cases, they also try to balance the equities so as to do complete justice between them. Thus the Courts always maintain a human approach. In the instant case also, this approach has not been departed from. We are fully conscious that the respondent had worked on the post in question for quite a long time but it was only in ad hoc capacity. We are equally conscious that a selected candidate who also possesses necessary educational qualification is available. In this situation, if the respondent is allowed to continue on this post merely on the basis of his concept of "human approach", it would be at the cost of a duly selected candidate who would be deprived of employment for which he had striven and had ultimately cleared the selection. In fact, it is the "human approach" which requires us to prefer the selected candidate over a person who does not possess even the requisite qualification. The Courts as also the Tribunal have no power to override the mandatory provisions of the rules on sympathetic consideration that a person, though not possessing the essential educational qualifications, should be allowed to continue on the post merely on the basis of his experience. Such an order would amount to altering or amending the statutory provisions made by the Government under Article 309 of the Constitution.
32. "Experience" gained by the respondent on account of his working on the post in question for over a decade cannot be equated with educational qualifications required to be possessed by a candidate as a condition of eligibility for promotion to higher posts. If the Government in exercise of its executive power, has created certain posts, it is for it to prescribe the mode of appointment or the qualifications which have to be possessed by the candidates before they are appointed on those posts. The qualifications would naturally vary with the nature of posts or the service created by the Government".
It is thus clear that where the rules do not provide for weightage, Court or Tribunals should not direct weightage to be given at the time of regular recruitment. That can be done only by amendment to the rules by the rule making authority and not by the direction of the Courts.
13. We will now refer to the two decisions relied on by the petitioners to contend that they are entitled to weightage.
13.1 In Ashwani Kumar v. State of Bihar, as against the sanctioned posts of 2,250 of Class III and IV posts under Tuberculosis Eradication Programme, as many as 6,000 persons were recruited and illegally appointed, without authority. It was not clear as to who among the 6,000 appointees were the senior most 2,250 persons, and who were appointed against the sanctioned posts and who were not appointed against sanctioned posts, so as to enable the termination of the services of only those who were appointed in excess of the sanctioned posts. Therefore, the Director-in-Chief, Health Services, terminated all the appointees. When that was challenged the Supreme Court upheld termination of all such appointees. However, since the Tuberculosis Eradication Programme was still to continue, the Supreme Court on humanitarian grounds directed that fresh recruitment to the sanctioned posts to be made at the earliest and all the affected persons whether or not parties to the case, be given opportunity to compete for the said posts and be given due weightage for their past experience. But as noted above, the facts in this case arc completely different. There the petitioners were regularly appointed but in excess of the sanctioned posts and they worked for a considerable period. On the peculiar circumstances, the Supreme Court directed weightage to be given on humanitarian grounds. That is not a precedent to hold that the Post and Telegraph Department should give weightage to the petitioner in violation of the PTEDA Rules.
13.2 The second decision of the Supreme Court relied on by the petitioners, is Arun Kumar Rout and Ors. v. State of Bihar, which related to some daily wagers whose services had been regularised. Subsequently their services were terminated on the ground that their initial appointment was irregular. The employees concerned were not guilty of any fraud or sharp practice, nor did they lack the requisite qualification. They were already in service for more than 5 years. In those peculiar circumstances, the Supreme Court held that such employees deserve sympathetic consideration even if they could not claim regularisation and directed that while assessing their merit, they should be given credit of 25% marks for the experience they have gained for services rendered by them for a long period of 5 years of service. This decision again is inapplicable as the judgment itself makes it clear as follows:
"These directions are given on consideration of the special facts of this case and this order being confined to the special facts of this case is not to be treated as a precedent".
13.3 Neither of the two cases relate to recruitments made in accordance with the recruitment rules.
14. The difference between applications for regularisation and applications challenging the recruitment made in accordance with the recruitment rules should be kept in mind. When a person who has worked temporarily for considerable period approaches the Court or Tribunal for regularisation and for some reason the Court finds that the person though qualified and eligible, is not entitled to the claim of regularisation, but deserves some benefit, in view of the experience gained by him on account of long service, the Courts have sometimes directed the authorities to keep in view the experience so gained by the temporary employee, by converting such experience into certain weightage. But such directions have been issued only in cases where the Court considered specific cases for regularisation, with reference to the special facts and circumstances of the case. On the other hand where the recruitment rules do not provide for weightage and where the Appointing Authority resorts to recruitment in terms of the recruitment rules, neither the Supreme Court nor this Court has interfered in any completed recruitment made in terms of the rules, by directing the Appointing Authority to reconsider the selection by providing weightage to any temporary employee, contrary to the rules. The Full Bench of the Tribunal has rightly kept this aspect in view, while deciding the two questions by order dated 19/20-4-2000. The earlier Full Bench of CAT, in G.S. Par-vathi's case, supra, lost sight of this aspect. We therefore answer the first point in the negative.
Point (b) Re: Regularisation
15. The petitioners next submitted that they should be extended the benefit of the following instructions contained in the letter dated 6-6-1988 issued by the DGP:
"Preference to casual labourers in the matter of appointment as Extra Departmental Agents.--1. According to the prevalent recruitment rules governing the cadre of Group 'D', the order of preference among various segments of eligible employees is as under--
(a) Non-test category;
(b) Extra Departmental employees;
(c) Casual labourers;
(d) Part-tune casual labourers.
2. Since the number of vacancies of Group 'D' is limited and the number of Extra Departmental employees eligible for recruitment as Group 'D' is comparatively large, the casual labourers and part-time casual labourers hardly get any chance of their being absorbed as Group 'D'. Thus majority of casual labourers with long service are let out without any prospect of their getting absorbed in Group 'D' cadre.
3. Keeping the above in view, a suggestion has been put forth that casual labourers, both full and part-time should be given preference for recruitment as Extra Departmental Agents, in case they are willing, with a view to afford the casual labourers a chance of ultimate absorption as Group 'D'.
4. The suggestion has been examined in detail and it has been decided that casual labourers, whether full time or part-time, who are willing to be appointed as Extra Departmental vacancies may be given preference in the matter of recruit- ment of Extra Departmental posts, provided they fulfil all the conditions and have put in a minimum service of one year. For this purpose, a service of 240 days in a year may be reckoned as one year's service. It should be ensured that nominations are called for from Employment Exchange to fill up the vacancies of casual labourers so that ultimately the casual labourers who are considered for Extra Departmental vacancies have initially been sponsored by Employment Exchange".
As rightly held by the Tribunal, the said circular applied only to persons employed as casual labourers and not to the persons who were appointed on substitute basis or on provisional basis (whose position is explained in para 3 above).
16. The fact that the said instruction cannot apply in the case of provisional appointees and substitutes, is also evident from the decision in State of Haryana and Ors. v. Piara Singh and Ors. The Supreme Court held that Courts should act with care and caution in issuing directions for regularisation and must be cognizant of the several situations and eventualities that may arise on account of such directions; that Courts should take a practical and pragmatic view, inasmuch as every such direction not only tells upon the public exchequer but also has the effect of increasing the cadre strength of a particular service, class or category. The Supreme Court gave several instances where regularisations should not be directed by Courts, two of which being relevant for own purpose are extracted below:
(a) "Take a case where certain vacancies are existing or expected and steps are taken for regular recruitment either through Public Service Commission or other such body, as the case may be. A large number of persons apply. Inevitably there is bound to be some delay in finalising the selections and making the appointments. Very often the process of selection is stayed or has to be re-done for one or the other reason. Meanwhile the exigencies of administration may require appointment of temporary hands. It may happen that these temporary hands are continuous for more than one year because the regular selection has not yet been finalised".
(b) "In some situations, the permanent incumbent of a post may be absent for more than a year. Examples of this are not wanting. He may go on deputation, he may go on Faculty Improvement Programme (F.I.P.), or he may be suspended pending enquiry into charges against him and so on. There may be any number of such situations. If a person is appointed temporarily in his place and after one year he is made permanent where will the permanent incumbent be placed on his return? Two persons cannot hold the same post on a regular or permanent basis".
It is no doubt true that if the temporary employment is continued for a long time, say 10 years, and the employee seeks regularisation, the continuous service may give rise to other presumptions and conclusions leading to regularisation. But we are not concerned with such situation in these cases.
17. The petitioners are not therefore entitled to regularisation on the basis of the guidelines contained in the DGP's letter dated 6-6-1988.
Conclusion
18. The applications filed by the petitioners before the Tribunal have been rejected by order dated 27-4-2000 based on the answers of the Full Bench on the above two questions. As we have upheld the answers of the Full Bench on the two referred questions, we find that the dismissal of the original applications does not call for any interference. These petitions are therefore dismissed.