Central Administrative Tribunal - Ernakulam
Mini.K.P vs Umadevi (2006) 4 Scc on 11 November, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A No. 186/2011
Friday, this the 11th day of November, 2011.
CORAM
HON'BLE Dr K.B.S.RAJAN, JUDICIAL MEMBER
HON'BLE Ms. K NOORJEHAN, ADMINISTRATIVE MEMBER
Mini.K.P.
D/o Bhaskaran Nair,
Part Time Sweeper, Pazhanji.P.O.
Kunnamkulam. ....Applicant
(By Advocate Mrs K Radhamani Amma with Mr O.V.Radhakrishnan, Senior )
v.
1. Senior Superintendent of Post Offices,
Thrissur Division. Thrissur-680 001.
2. Union of India represented by its
Secretary,
Ministry of Communication & information Technology,
Dak Bhavan, New Delhi-110 116. ....Respondents
(By Advocate Mr Sunil Jacob Jose, SCGSC )
This application having been finally heard on 8.11.2011, the Tribunal on
11.11.2011 delivered the following:
O R D E R
HON'BLE Dr K.B.S.RAJAN, JUDICIAL MEMBER The facts of this case are as under:-
(a) The applicant is presently working as GDS BPM at Porkulam under Pazhanji S.O. w.e.f. 17-01-2011. She has at her credit of having worked as Part time sweeper in the Pazhanji Sub Post Office from 17-02-2000 till 16-01-2011. Prior to her engagement as part time sweeper, the applicant had registered her name in the employment exchange since 1991 onwards, vide registration No. W 292/07, which stands renewed from time to time.
(b) The post of GDSBPM, Porkulam was notified for being filled up by way of provisional appointment vide Memo dated 17-12-2010 (Annexure A-2). The applicant having fulfilled the requisite qualifications and other attendant conditions had applied for the same.
(c) As provisions exists, vide DG Post letter dated 06-06-1988 for giving preference inter alia to part time casual labourers in matters of selection as GDS, the applicant filed a representation dated 16-
02-2011 to the first respondent, vide Annexure A-4. In support of her case, she had relied upon the decision of the Tribunal in OA No. 1069 of 1998.
(d) This OA has been filed claiming preference for selection to the post of GDSBPM in accordance with memorandum dated 06-06- 1988. As the applicant came to know that interview cards were sent to other candidates, vide Annexure MA-1 to MA No. 219 of 2011, she had prayed for interim order as well, which prayer, however, became infructuous as the respondents had withdrawn the said call letter. Thus, the applicant continues to function as GDS BPM on ad hoc basis, and this Tribunal directed that the applicant shall be permitted to function in that capacity till regular appointment is made against the post of GDSBPM, Porkulam on regular basis. Order dated 24.03.2011 refers.
2. Respondents have contested the O.A. According to them, the scheme of employment of casual labour has been discontinued from 1993, vide order dated 10-09-1993. There was no formal selection process for selection to the post of sweeper and there was no appointment as such. Thus, the applicant is neither a casual labourer nor a regular part time sweeper but one among the many persons engaged by various postmasters for sweeping work. As no formal selection and appointment was made, the benefit of memorandum dated 06-06- 1988 is not available to the applicant. Reference was invited to the decision of the Apex Court in the case of State of Karnataka vs Umadevi (2006) 4 SCC 1.
3. Applicant has filed the rejoinder, to which the scheme of grant of temporary status vide OM dated 10-09-1993 was attached. Para 10 thereof provides for engagement of casual employees in accordance with the provisions of OM dated 07-06-1988. Thus, the applicant contended that the contention of the respondents that there is no provision of engagement of casual labourer as per OM dated 10-09-1993 is to be rejected.
4. In their additional reply, the respondents have stated that the applicant in merit stands at serial No. 53, she having secured only 35.67%, while the first on the basis of marks scored in SSLC has secured 90.66%
5. Counsel for the applicant argued that the provisions of memorandum dated 06-06-1988 applies to the case of the applicant and as such, preference should be given, as directed in the case of the applicant in OA No. 1069 of 1998. Again, as regards initial engagement as part time sweeper, the counsel argued that the applicant had got the name registered in the employment exchange. He had also tried to highlight the difference between "casual labourer" on the one hand and "daily wages labourer" on the other and argued that in so far as the applicant is concerned, she having been paid from the contingencies, she has been casual labourer ever since 2000 and thus is entitled to preferential treatment in respect of selection to the post of GDSBPM.
6. Counsel for the respondents relied upon Umadevi's case of the Apex Court and stated that the applicant cannot be given any preference on the basis of her service as a part time sweeper as her initial engagement was not through proper mode of selection.
7. Arguments were heard and documents perused. Admittedly, the applicant had been engaged as part time sweeper since 2000. When the applicant claims that by virtue of such long service she should be given the benefit of the provisions of order dated 06-06-1988, respondents turn around to contend that since her initial appointment was not in accordance with prescribed rules, Umadevi applies. Engagement of the applicant eleven years ago was done by the respondents and at that time they did know about the procedure to engage casual labourers or prohibitions if any in engaging casual labourers. If the applicant had not been engaged in accordance with the procedure, she cannot be blamed for that purpose. It is trite law that one cannot be allowed to take one's own mistake and conveniently pass the blame on others. (See A.K. Lakshmipathy vs Rai Saheb Pannalal H. Lahoti Charitable Trust (2010) 1 SCC 287 and Rekha Mukherjee vs Ashis Kumar Das (2005) 3 SCC 427).
8. Again, in so far as sponsorship from employment exchange is concerned, referring to the three cases (a) Union of India vs N. Hargopal (1987) 3 SCC 308, Ex. Supdt vs KBN Visveshwar Rao (1996) 6 SCC 216 and Arun Kumar Naik vs Union of India (2006) 8 SCC 111, the Apex Court in the case of State of Bihar v. Upendra Narayan Singh,(2009) 5 SCC 65, has stated:
"31. The ratio of the abovenoted three judgments is that in terms of Section 4 of the 1959 Act, every public employer is duty-bound to notify the vacancies to the employment exchange concerned so as to enable it to sponsor the names of eligible candidates and also advertise the same in the newspapers having wider circulation, employment news bulletins, get announcement made on radio and television and consider all eligible candidates whose names may be forwarded by the employment exchange concerned and/or who may apply pursuant to the advertisement published in the newspapers or announcements made on radio/television."
9. In the case in hand, the applicant had already registered her name in the employment exchange. As such, her engagement as a part time sweeper cannot be faulted with at this juncture. In one way, the decision in Umadevi does assist the applicants inasmuch as the very same judgment in para 53 thereof suggests a scheme to be formulated for regularization of the ad hoc services of those who have been engaged for a substantial span of nearly a decade. The Apex Court in this case held as under:-
"One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date." (Emphasis supplied)
10. Thus sponsorship through employment exchange is not a condition precedent to apply for the post etc. In the instant case, the applicant does not seek any regularization as such, but wants her rich experience to be recognized for the purpose of selection to the post of GDSBPM in accordance with the provisions of order dated 06-06-1988. To that extent the case of the applicant cannot be faulted with. It is thus declared that the applicant is entitled to the benefits as a part time casual labourer in accordance with the provisions of order dated 06-06-1988.
11. The next question is whether the provisions of order dated 06-06-1988 provides for a pre-emptive right to the categories of personnel mentioned therein in matters of selection to the post of GDS. The order dated 06-06-1988 inter alia reads as under:-
"Preference to casual labourers in the matter of appointment as ED Agents -
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 catgegory;
(b) ED employees
(c) Casual labourers
(d) Part time casual labourers.
2. Since the number of vacancies of Group 'D' is limited, and the number of ED employees eligible for recruitment as Group 'D; is comparatively large, the casual labourers and part time casual labouers hardly get any chance of their being absorbed as Group 'D'. Thus, majority of casual labouers with long service are left 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 shold be given preference for recruitment as Extra Departmental Agents in case they are willing, with a view to afford the casual labourers a chance for ultimate absorption as Group 'D'.
4. The suggestion has been examined in detail and it has been decded that casual labourers, whether full time or part time who are willing to be appointed to ED vacancies may be given preference in the matter of recruitment of ED posts, provided they fulfil all the conditions and have put in a minimum service of one year. For this pupose, 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 ED vacancies have initially sponsored by Employment Exchange.
12. Thus, the bottom line of the above order is that the casual labour class, which do not have that much prospect of being absorbed as Group 'D' should be given preference in matter of appointment as erstwhile E.D. (now the GDS). The term 'preference' has to be interpreted with the above orientation in mind. The apex Court has interpreted the term 'preference' in various judgments and these could be taken up for our guidance.
(a) In Mohd Usman v State of A.P. (1971) 2 SCC 188, a question arose whether the procedure adopted whereby those persons who were entitled to be given preference under the Rules were considered separately and recruited as first instance and it is only thereafter the other recruitments were made is unconstitutional. The Apex Court has in that case held as under:-
"Rule 5 deals with qualifications for being recruited as Grade-II Sub- Registrars. That Rule reads:
"Qualifications.-- No person shall be eligible for appointment to the category mentioned below unless he possesses the qualification shown.
Category and qualifications.-- (1) Sub-Registrars, II-Grade:-- (i) x x x x
(ii)x x x x ; and
(iii) x x x x `(iv) x x x .
Preference shall be given to persons who, in addition to the qualifications specified in items (i) to (iii) possess a Degree in Law of a University in the State or any other equivalent qualification or a Pleadership Certificate in the First Grade or who have put in five years service in the category of Upper Division Clerks in the Registration Department."
x x x
8. We agree with the High Court that there is no substance in the petitioners' contention that the impugned recruitments were not made in accordance with Rule 5. It is clear from the affidavit filed on behalf of the State and the Registrar that the Registrar had considered the case of all the qualified clerks, but the Registrar thought that the best basis for recruitment was to prepare a list of all the clerks, UDCs as well as LDCs arranging the names in the order of seniority as LDCs and thereafter consider each name and reject the unfit. In other words, the selection was made on the basis of seniority-cum-merit -- the seniors among the clerks were selected subject to suitability. Those persons who were entitled to be given preference under the rules considered separately and recruited at the first instance. Only thereafter the other recruitments were made. The rules do not prescribe that the recruitment should be made on the basis of merit and merit alone. Bearing in mind the fact that the recruitment with which we are concerned in this case is a recruitment by transfer which means recruitment from among the ministerial officials, the method adopted by the Registrar appears to us to be the most reasonable one." (emphasis supplied)
(b) In Govt. of A.P. v. P. Dilip Kumar, (1993) 2 SCC 310, the Apex Court has held as under:
"13. The matter may be looked at from another viewpoint. The word `preference' as understood in ordinary parlance means preferring or choosing as more desirable, favouring or conferring a prior right. What then is the purpose and object sought to be achieved by the insertion of the preference clause in the rule? There is no doubt that preference was sought to be granted under Note 1 to post-graduates in the larger interest of the administration. How would the interest of the administration be served by granting preference to post-graduates? It is obvious that it was thought that on account of their higher mental equipment the quality of performance that the State will receive from highly qualified engineers would be better and of a high order. In other words the State considered it necessary to strengthen the engineering service by recruiting post-graduates to the extent available so that the State may benefit from their higher educational qualifications and better performance. If this was the objective surely it would not be realised unless post-graduates are treated as a class and given preference en bloc over the graduates."
13. The above two decisions would reflect (a) If there is a preferential clause, persons belonging to the same could well be considered at the first instance (vide decision in the case of Mohd Usman v State of A.P. (1971) 2 SCC 188 and (b) the objective sought for by giving preference should be achieved and selection should be towards achievement of such an objective.
14. In the instant case, order dated 06-06-1988 was specific in giving the preference to casual labourers including part time casual labourers and the reason for the same has also been spelt therein. Since the chances of such casual labourers being absorbed as Group 'D' being remote, an alternative was searched for to get such casual labourers including part time casual labourers absorbed in service on regular basis. Appointment to the post of GDS came handy for this purpose and it is due to the same that preference is given. There shall, however, be no compromise in so far as the minimum educational qualifications are concerned. Subject to the conditions being fulfilled, preference is to be given to the casual labourers and part time casual labourers.
15. Merit in matters of selection is one of the prime criterion as held in a number of cases. However, when certain other compelling contingencies arise, merit may have to take a rear row. For example, in regard to the question whether the candidates belonging to SC/ST community are to be given preference over those belonging to OC irrespective of the fact that the candidates belonging to OC have obtained much higher marks in the examination which makes them eligible to seek appointment in case the selection is made on the basis of marks, the clarification given by the Department is as under:-
"This has to be seen in the context whether adequate representation is available for candidates belonging to SC/ST in the recruiting unit concerned. It is is not available, then the best course would be to make it clear in the notification issued to the Employment Exchange itself that preference would be given to candidates belonging to reserved communities. If this is done, there is every possibility that the Employment Exchange may nominate more than one candidate belonging to SC/ST, etc. In such a situation, the candidates belonging to reserved communities will have to compete amongst themselves and the point that the OC candidates have secured higher percentage of marks in Matriculation examination and should or should not be given preference will become immaterial. However, in other cases, if SC/ST candidates satisfies all the minimum prescribed eligibility conditions including the educational qualification and the representation to that category is not adequate, the question of his competing with C candidate does not arise. He has to be given preference over candidates, irrespective of the percentage of marks secured subject only to the condition that he satisfied all other prescribed eligibility criteria."
16. The above would go to show that merit alone is the criterion for selection to the post of GDS.
17. Persons with casual labour service would normally have had their education much earlier than those who are comparatively younger. If merit be the the sole criterion, obviously, the younger ones would score a march over those who had passed the matriculation examination much earlier, as the evaluation in earlier days was not that liberal as of today. Under these circumstances, if merit is treated as the sole criterion, then perhaps, the chance of casual labourers becoming GDS would be as rare as their chances for absorption in Group 'D' post. In that event, the provisions in the order dated 06- 06-1988 would be only on paper. The Apex Court has, in the case of Shadi Singh vs Rakha (AIR 1994 SC 800) has held that all the provisions should be harmoniously read together to give effect to them and should not be rendered otiose or surplusage.
18. Keeping in view the above decisions and the spirit behind the issue of order dated 06-06-1988, we have no hesitation to hold that when casual labourers including part time casual labourers are available in the sub division they should be considered in the first instance, as they belong to preferential class, as held by the Apex Court in the case of Udham Singh (Supra), and it is only thereafter that selection from open market should take place. We make it clear that all other full time or part time casual labourers in the Sub Division similarly situated as the applicant herein (i.e. falling within the category of such casual labourers eligible for consideration for the post of GDS as per order dated 06-06-1988) shall also have equal opportunity as the applicant in regard to consideration for the post of GDSBPM.
19. Again, the number part time casual labourers and casual labourers must by now be depleting day by day and as such, it would not be difficult to the respondents to first consider the case of such eligible casual labourers for such appointment as GDS.
20. In view of the above, this OA is disposed of with a direction to the respondents to consider all the cases of Part time or full time casual labourers in the Sub Division concerned for selection to the post of GDSBPM, Porkulam and if the applicant happens to be meritorious out of them, he may be given the appointment as GDSBPM. It is only after exhausting the above mode of appointment that selection to the post of GDS from open market be considered. Notification dated 17-12-2010 shall, therefore, be kept in abeyance or cancelled .
21. Under the circumstances, there shall be no orders as to costs.
K NOORJEHAN Dr K.B.S.RAJAN ADMINISTRATIVE MEMBER JUDICIAL MEMBER trs