Central Administrative Tribunal - Delhi
P. Hareesh vs Union Of India on 13 August, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH OA No. 516/2009 THIS THE 13TH DAY OF AUGUST, 2010 HONBLE SHRI L.K. JOSHI, VICE CHAIRMAN (A) HONBLE SHRI GEORGE PARACKEN, MEMBER (J) HONBLE MS. K. NOORJEHAN, MEMBER (A) P. Hareesh, aged 29 years S/o Narayanan Nair, Gramin Dak Sevak Mail Carrier Kadanchery EDSO, Malappuram District, Residing at Cherooli House, Nariparamp PO, Malappuram District. Applicant. (Through Mr. Shafik MA, Advocate) Versus 1. Union of India, represented by the Chief Postmaster General, Kerala Circle, Trivandrum. 2. The Superintendent of Post Offices, Tirur Division, Tirur. Respondents. (Through Mr. A.D. Raveendra Prasad, ACGSC) ORDER MR. L.K. JOSHI, VICE CHAIRMAN (A):
The short question we have been called upon to answer is whether a provisionally appointed Gramin Dak Sewak (GDS) would be eligible for increments under the Time Related Continuity Allowance (TRCA) and Productivity Linked Bonus paid to the GDS.
2. The issue had been considered in the past. It is not disputed that in Original Applications number 1197/2000 and 423/2003, it had been held that the provisionally appointed GDS would be eligible for increments in TRCA and Productivity Linked Bonus. In OA number 576/2007, M. Shuhurdeen Vs. Assistant Superintendent of Post Offices, Trivandrum East Sub Division and Ors., decided on 3.07.2008 the Tribunal held that provisionally appointed GDS would be entitled to both the increments under TRCA and Productivity Link Bonus. The same learned Bench, however, in D.Kaladharan Vs. Sub Post Master, Chavara and Ors., OA number 698/2007, in judgement dated 20.10.2008, decided to the contrary that provisionally appointed GDS would not be eligible for the aforesaid benefits. Identical matters were considered by a learned DB of this Tribunal in OA number 605/2008, A.M. Geetha Devi Vs. Union of India and Anr. alongwith OA number 606/2008 and OA number 697/2008. The learned Bench in its judgment dated 20.10.2009 considered the previous judgements of this Tribunal and held that the provisionally appointed GDS would be eligible for increments in TRCA as also bonus for the years they were engaged on provisional basis. Considering the two diametrically opposite decisions in OA number 576/2007 (decided on 3.07.2008) and OA number 698/2007 (decided on 20.10.2008), it was held that the latter order was per incuriam in as much as it did not take any notice of the judgments of the same learned Bench only three months earlier. The learned Bench in OA number 605/2008 posed the following question:
7. The situation thus leads to the next question, whether the earlier decision of this Bench be followed by holding the later decision as per incuriam or the matter has to be referred to a larger bench, in case the said order is respectfully differed. After considering the judicial precedents in Sub-Inspector Rooplal Vs. Lt. Governor, (2006) 1 SCC 644, Vijay Laxmi Sadho (Dr.) Vs. Jagdish, (2001) 2 SCC 247 and State of Bihar Vs. Kalika Kuer, (2003) 5 SCC 448, the Honourable Tribunal observed thus:
11. Keeping in view the fact that consistently this Tribunal having held that provisionally engaged GDS are entitled to future increments and Bonus, the lone exception being the decision in OA number 698/2007, which perhaps had no opportunity to consider its earlier decision, we may observe that the same decision in OA No. 698/2007 has been rendered per incuriam. We are in respectful agreement with the decision in earlier cases i.e. OA No.576/2007 (which was passed following the decisions of this Tribunal in OA No.1197/2000 and 424/2003 as already referred). Thus, those applicants, whose appointments were provisional after following the selection procedure are certainly entitled to the future increments as well as Bonus as prayed for.
3. The issue came for consideration in the OA in hand (OA number 516/2009, P. Hareesh Vs. Union of India and Ors.), a learned Bench of this Tribunal adverting to the judgments in various Original Applications, already adverted to in the preceding paragraph, felt that in view of the contradictory judgements in the OAs it would be necessary to refer the matter to a Larger Bench. The matter is thus before us.
4. We have heard the learned counsel for the parties and have perused the record placed before us with their assistance.
5. D.G. Posts by its Letter No.17-115/2001-GDS dated 21.10.2002, issued guidelines for regulating substitute/provisional arrangements made in place of regular Gramin Dak Sevaks. Paragraph 9 and 10 of the aforesaid guidelines are extracted below:
9. In the case of provisional appointments, it is clarified that such appointments should be resorted to only in cases where the GDS is unable, quite unexpectedly, to undertake his duties due to his own actions (unauthorized absence, fraud, misappropriation, etc.), due to circumstances beyond his control like sudden serious illness/accident/death or because the department does not want him/her to continue (due to reasons of misconduct/dismissal/removal/put off duty, etc.) In all other cases, action should be taken well in advance to fill the post on a regular basis. Even where the post falls vacant unexpectedly, efforts should be made to manage the work through combination of duties as spelt out in Para 8 (i) (a) & (c). Similarly, even in case of long-term deputation of GDS to the APS, action may be taken to fill up the post on regular basis and the GDS, on return from deputation may be suitably adjusted against vacancies in existence at that given time.
10. Where provisional appointment becomes unavoidable, action may be initiated to fill the post following all the formalities prescribed for regular appointment, but clearly stipulating that the appointment is on a provisional basis. On no account, should a provisional appointment be made without following every formality that is prescribed for regular appointment. Since the whole process will take a period not exceeding 60-90 days, stop-gap arrangement may preferably be made at the local level in the interim through combination of duties or by allowing the GDS from a neighboring office to function, or by deploying a Mail Overseer to look after the work. Under no circumstances, should such local arrangement exceed 90 days. If, due to some unavoidable reasons, the local arrangement needs to be continued beyond 90 days, approval of the next higher authority is to be taken on a one time basis for reasons to be recorded in writing. (emphasis supplied) It is noteworthy that provisional appointments for the post of GDS are made following the regular procedure and formalities prescribed for regular appointment. The above guidelines expressly prohibit provisional appointment without following every formality prescribed for regular appointment. We agree with the learned counsel for the Applicant that in view of these facts, it would be wrong and discriminatory to distinguish between the regularly appointed regular employees and, so to say, regularly appointed provisional employees, both having the same qualifications, appointed following the same formalities and having performed the same work. It would be in violation of Article 14 of the Constitution to discriminate between them. The work being done by both is the same. Therefore, in our considered opinion differentiation for the purpose of increment and bonus cannot be made between persons in these two classes, who are equally qualified and have been recruited following the same procedure. In Annexures A and B to the DGP&Ts Letter no.43-4/77-Pen dated 18.05.1979 and Circular No.19-34/99-ED & Trg. dated 30.12.1999 it is clearly mentioned that the provisional appointee would be governed by the Extra-Departmental Agents (Conduct and Service) Rules, 1964 as amended from time to time and all other orders applicable to Extra-Departmental Agents.
6. The reliance place by the Respondents on the judgment of the Ahmedabad Bench of this Tribunal in Mr. V.P.Gorfad Vs. Union of India and others, OA number 114/2004, decided on 13.09.2005 is, in our considered opinion, misplaced. The issue considered in the aforesaid case was whether the service of the provisionally appointed GDS could be discontinued once the period for which he was appointed had lapsed. There was not even a whisper of the issue before us in this reference. Advertence was also made to an intra-office communication dated 7.08.2002, which were comments of the Establishment Division addressed to S R Section regarding the charter of demands by postal employees. This has been placed at Annex R-1. It has, inter alia, been mentioned that instructions have been issued to curb the practice of making provisional appointments and reduce the period of provisional appointments to bare minimum. Thereafter it is stated that issue regarding bonus to provisional appointees had been considered and rejected in consultation with the internal finance. It was also stated that the position was same as regards increments. We cannot accept this as instructions issued by the DGP&T. Such correspondence would not be termed as instructions of DGP&T, which, in the absence of rules, partake the character of rules.
7. On the above consideration we hold that provisionally appointed GDS, who have been appointed following all the procedures and formalities prescribed for regular appointment and who have completed one year or more of service would be entitled for increment under TRCS and also Productivity Linked Bonus, as awarded to regular GDS.
8. The OA is remitted to the DB for decision on merits.
( K. Noorjehan ) ( George Paracken ) ( L.K. Joshi ) Memebr (A) Member (J) Vice Chairman (A)