Union Of India vs K.Ajeesh on 25 October, 2016

[Cites 2, Cited by 0]

Kerala High Court

Union Of India vs K.Ajeesh on 25 October, 2016

The captioned original petition carries a challenge against the order dated 25.10.2016 passed by the Central Administrative Tribunal, Ernakulam Bench in O.A.No.516 of 2016 filed by the respondents herein on being aggrieved by the refusal of the petitioners herein to relieve them to join the Army Postal Service (APS). The Tribunal as per the impugned order allowed the Original Application and issued a direction to the petitioners herein to depute the applicants/the respondents herein to APS. It is in the said circumstances that the petitioners who were respondents therein filed the captioned original petition.

2. The respondents filed the original application mainly seeking the following prayers:-

"(i) To call for the records relating to Annexures A-1 to A-10 and to declare that clause 5 of the Annexure A-1 notification is illegal and to quash the same.

(ii) To declare that the applicants herein are entitled to be relieved from their respective divisions with O.P(CAT)No.311 of 2016 2 immediate effect in order to join APS as per A-5 & A-6."

3. The first respondent herein is working as Gramin Dak Sevak (for short `GDS' only) under the 2nd petitioner herein and the 2nd respondent is working as GDS under the 3rd petitioner. On a request from the Army Recruitment Office the first petitioner issued a notification dated 19.8.2015 for conducting Limited Departmental Competitive Examination for effecting deputation of GDS to APS. It is to be noted that the said notification was issued for conducting a written examination for the purpose of filling up of the post of Multi Tasking Staff (MTS) on regular basis as well, in accordance with law. Virtually, the respondents responded to the said notification and appeared for the examination conducted on 25.10.2015 for the purpose of sending GDS to APS. In fact, it was a division-wise examination and in their respective divisions, the first respondent was placed at Sl.No.2 and the 2nd respondent was placed at Sl.No.3, in the list published pursuant to the said examination. While the respondents were eagerly awaiting orders of deputation to APS, to their dismay and dejection a subsequent notification was issued for holding the same examination on 31.7.2016. The respondents found a noted deviation in the stand of the petitioners inasmuch as, the earlier method of preparing division- O.P(CAT)No.311 of 2016 3 wise rank list was changed to circle-level list. It was also specifically mentioned in the subsequent notification that such qualified candidates included in the circle-wise list would be allotted to any division and the concerned ARO would initiate action for medical check-up. In such circumstances, the respondents filed Annexures A-7 and A-8 representations virtually seeking for adoption of policy against the one which is mentioned in the subsequent notification. Despite the receipt of such representations the petitioners herein did not take any action and that constrained the respondents to approach the Tribunal by filing O.A.No.516 of 2016 carrying the aforementioned prayers. As noticed hereinbefore, as per the impugned order, the Tribunal allowed the original application and granted the reliefs as mentioned hereinbefore .

4. We have heard the learned Assistant Solicitor General of India for the petitioners and also Adv.Sri.M.A.Shafik, the learned counsel appearing for the respondents.

5. The learned Assistant Solicitor General contended that the Tribunal passed the impugned order carrying the directions to depute the respondents herein to APS without appreciating the spirit and scope of the recruitment rules. In elaboration of the said O.P(CAT)No.311 of 2016 4 contention the learned Assistant Solicitor General took us through Annexure-A9 which is the relevant recruitment rules. Obviously, the said rule was enacted in exercise of powers conferred by the proviso to Article 309 of the Constitution of India and in supersession of the Department of Posts (Multi Tasking Staff) Recruitment Rules, 2010 followed by its subsequent amendments. Special emphasis was given to Rule (5) therein. It reads thus:-

"Any person appointed to the posts specified in the said Schedule shall be liable to serve in the Army Postal Service in India or abroad, as required."

(emphasis added) The learned Assistant Solicitor General further submitted that the schedule would reveal that only one post is included therein namely, Multi Tasking Staff and in other words, GDS is not included therein. Further, we were taken to that portion of the rules which deals with the method of recruitment. For the purpose of this case, the relevant provisions thereunder are clause (ii)(a) and (iv). They reads thus:-

"(ii)(a) 25% by direct recruitment on the basis of Competitive Examination restricted to the Gramin Dak Sevaks of the Division or Unit failing which by........"

(iv) 25% by direct recruitment on the basis of O.P(CAT)No.311 of 2016 5 competitive examination restricted to the Gramin Dak Sevaks of the recruiting Division or Unit for joining Army Postal Service only as Sepoy/Packer subject to the following conditions:-

(a) Age 18-30 years (relaxable for different categories as notified by the Government of India from time to time).

(b) found medically fit as per the fitness criteria fixed by the Department of Posts/Army Postal Service from time to time.

(c) Willing to serve in Army Postal Service till his services are required in the Army Postal Service."

Thus, it is evident from Annexure-A9 rules that the notification was issued for the purpose of conducting examination for the aforesaid twin purposes and in fact, the respondents were included in the list drawn for the purpose of rule (iv). There is no dispute regarding the fact that the respondents had participated in the test pursuant to the notification issued on 25.10.2015 and included in the rank list published in the respective divisions. The learned Assistant Solicitor General further contended that since the lists were drawn pursuant to such examination only on division-wise basis a person who is included in the list of a particular division could aspire deputation only if a vacancy arose in that division. The essential contention of the respondents is that since the very purpose is to recruit candidates from the circle there was O.P(CAT)No.311 of 2016 6 absolutely no necessity to prepare division-wise list and irrespective of the division, when vacancy exists or arises in the circle during the currency of the list, there is absolutely no reason for denying deputation of a person included in the list solely due to the fact that it is available not in the division to which the said person belongs. The learned Assistant Solicitor General resisted it contending that adopting such a course would ultimately go detrimental to the interests of the persons included in the lists drawn pursuant to the second notification. The core contention of the petitioners herein is that though going by Annexure- A9 rules such examination was conducted only for GDS passing of such a test and getting included in a list it would not confer a GDS with the right to get deputed to APS automatically. The contention is that subject to the availability of vacancies in the cadre of MTS such rank holders in the list of GDS would be given a technical promotion as MTS solely for the purpose of sending them on deputation to the services of APS either as Sepoy or as Packer. In short, it is contended that mere inclusion of the name of a GDS in the list drawn pursuant to such examination would not confer a right on him in the absence of vacancy in the cadre of MTS in the particular division to which he belongs. The learned Assistant Solicitor General also contended that the said position was changed at the time of issuance of the subsequent notification and O.P(CAT)No.311 of 2016 7 going by the latter notification a person who is included in such a list published circle-wise could be sent on deputation according to his seniority and irrespective of the division to which he belongs. It is further contended that it is in the light of such conditions included in the subsequent notification that such a procedure has been adopted in the matter of sending the selectees on deputation. The learned counsel appearing for the respondents in the contextual situation submitted that there is absolute absence of any case for the petitioners before the Tribunal that an amendment was brought to Annexure-A9 rules enabling such a deviation. So also, it is contended by the learned counsel that in such circumstances and in the absence of any contra position in Annexure-A9 rules the same procedure and yardstick ought to have been taken in the case of persons included in the list drawn pursuant to the first notification issued on 19.8.2015.

6. In view of the rival contentions it is only apposite to look into the relevant rules enabling deputation of GDS to APS and it in so far as relevant reads thus:-

(iv) 25% by direct recruitment on the basis of competitive examination restricted to the Gramin Dak Sevaks of the recruiting Division or Unit for joining Army Postal Service only as Sepoy/Packer O.P(CAT)No.311 of 2016 8 subject to the following conditions:-

(a) Age 18-30 years (relaxable for different categories as notified by the Government of India from time to time).

(b) found medically fit as per the fitness criteria fixed by the Department of Posts/Army Postal Service from time to time.

(c) Willing to serve in Army Postal Service till his services are required in the Army Postal Service."

7. Conspicuously, the word "deputation" is not employed in clause (iv) and it only contemplates direct recruitment of GDS for joining APS as Sepoy/Packer subject to the conditions specifically mentioned thereunder. The learned Assistant Solicitor General has also brought to our notice that even as per the impugned order the Tribunal had also directed for the deputation of the respondents to APS within the time stipulated thereunder. In this context, it is further submitted by the learned Assistant Solicitor General that deputation to another service is possible only if the person sought to be sent on deputation is holding an equivalent post in the parent department. It is also submitted that the post of MTS in the Postal Department is equivalent to the post of Sepoy/Packer in the APS with reference to scale of pay. GDS is not a post borne in the cadre of the Postal Department though it is a civil post. At the same time, it is submitted that MTS is a post O.P(CAT)No.311 of 2016 9 borne in the cadre of Postal Department. It is in such circumstances that the qualified GDS in the examination are being granted a technical promotion to bring them to a post equivalent to the posts of Sepoy/Packer in APS for deputation to APS. In such circumstances, it is submitted that in the absence of vacancies in the regular cadre of MTS a GDS who qualified in an examination could not aspire a deputation to APS without obtaining a technical promotion as MTS.

8. The learned counsel appearing for the respondents submitted that the contention which was taken up in the light of the provisions especially clause (iv) to the effect that a rank holder in the list of GDS prepared pursuant to competitive examination could not be and would not be sent on deputation to APS without being granted a technical promotion to the post of MTS is not at all a contention specifically taken up by the petitioners herein before the Tribunal. It is further submitted by the learned counsel that there is absolute absence of any such pleadings in the reply statement filed before the Tribunal as also in the original petition filed before this Court. We have carefully gone through the pleadings taken up by the petitioners in the reply affidavit filed by them before the Tribunal as also the pleadings in the original petition. Evidently, there is conspicuous absence of any such O.P(CAT)No.311 of 2016 10 pleading by the petitioners either in the reply affidavit or in the original petition on the lines which we have referred to hereinbefore. In the said circumstances, the question is whether such a contention can be permitted to be raised for the first time before this Court in the absence of specific pleadings before the Tribunal ? Its tenability is to be considered in the light of the decision of the Hon'ble Apex Court in U.P.Gram Panchayat Adhikari Sangh v. Daya Ram Saroj ((2007) 2 SCC 138). The Hon'ble Apex Court held therein that a contention could not be permitted to be raised in the absence of specific pleadings merely because it was orally taken up before the High Court while mounting challenge against an order passed by the Tribunal. We have already found on careful scanning of the pleadings of the petitioners in the reply affidavit before the Tribunal and also in this Original Petition that such basic pleadings are lacking in them. In fact, the petitioners would admit the factum of total absence of such pleadings both in the reply affidavit and in the Original Petition. In other words, the petitioners are now making oral contention without the backing of basic pleadings either in the reply affidavit before the Tribunal or at least, in this Original Petition. In this context it is also to be noted that it is not a contention available to the petitioners based on any specific provision in any of the relevant rules. At any rate, no such provision enabling O.P(CAT)No.311 of 2016 11 them to raise such a contention sans basic pleadings, has been brought to our notice. In such circumstances, we are of the view that the objection raised by the learned counsel for the respondents is well founded and it is only to be accepted in the light of the aforesaid decision in U.P.Gram Panchayat Adhikari Sangh's case (supra).

9. The next limb of contention of the learned Assistant Solicitor General of India is that since the list in which the petitioners found place, published pursuant to a competitive examination, on divisional basis as per the recruitment rules sending the rank holders on deputation against a vacancy which occurred in other divisions is impermissible. In fact, that alone was the question rather objections raised specifically for consideration before the Tribunal to resist the claims and contentions of the petitioners. The Tribunal considered the said issue in paragraphs 14 and 15 of the impugned judgment. It would reveal that the respondents herein made requests for deputation to APS against 25% direct recruitment quota under limited department competitive examination for joining APS on the ground that the qualified candidates available under different divisions were less than the notified available vacancies in RMS CT division. Such unfilled APS vacancies were available in Idukki. There are two other unfilled vacancies in RMS O.P(CAT)No.311 of 2016 12 Ernakulam division. That apart there are 10 unfilled APS vacancies in RMS Calicut division which is a neighbouring division. The Tribunal took note of the fact that the right to apply pursuant to Annexure A1 notification dated 19.8.2015 was not actually limited to any particular Division. There is no prescription in the rules that a GDS working in a particular division could apply only if vacancy exists in that division whereas GDS could apply irrespective of availability of vacancies in the particular division to which he belongs.

10. The nub of the contentions of the petitioners is that in view of the specific provision in Annexure-A9 rules which was framed invoking the power under proviso to Article 309 of the Constitution, 25% of the direct recruitment based on competitive examination restricted to GDS can only be with respect to a particular division or unit. The learned Assistant Solicitor General drew our attention to clauses 5, 10 and 14 in Annexure -A1 notification. They read thus:-

"05.Vacancies:-

The details of Division-wise vacancies under both categories are attached as Annexure. The vacancy

(s) of one Division cannot be claimed by the GDS of other Division(s) including the vacancies notified for the deputation to APS. A GDS of a Division will be considered for the vacancies of both categories of that Division subject to the eligibility conditions stated at 03 above.

O.P(CAT)No.311 of 2016 13

10.GDS, who are working in APS on deputation, will be considered for the examination against the vacancies of the division from which they have proceeded on deputation, under both categories, subject to the eligibility condition stated in Para 3 above. In other words, all conditions which are required for the GDS working in Civil side will also applicable to the GDS who are working now in APS on deputation.

14.Vacancy position approved for the examination (under both categories) is shown in the Annexure attached to this notification. No examination need be conducted at the Divisions where the vacancy position is NIL, under both categories."

Clause 14 in unambiguous terms states that an examination need not be conducted in respect of divisions where vacancy position is nil under both the categories referred to in Annexure-A1. True that when the second notification issued for the purpose of filling up of unfilled vacancies, a deviation was made from the aforesaid condition. In the subsequent notification, it was specifically mentioned that in case of existence of vacancies in other divisions, persons included in the list can be adjusted against such vacancies. In this context, note to Annexure A10 notification assumes relevance. It reads thus:-

"The merit list of qualified candidates will be prepared Circle level. The qualified candidates will be allotted to divisions where vacancy exists and the concerned Divisional Head will initiate action for dispatching the candidate to concerned ARO/BRO for medical checkup."

11. It is evident that pursuant to the second notification, the O.P(CAT)No.311 of 2016 14 examination was conducted not on division level; but, only on circle level. At the same time, as noticed hereinbefore, going by Annexure- A9 rules, the examination has to be conducted division-wise in respect of vacancies existing in a particular division and in respect of the division where no vacancies exist, examination was not to be conducted. We have also found that Annexure-A1 notification was issued perfectly in conformity with Annexure-A9 rules. In such circumstances, there is substance in the contention of the petitioners that directions issued by the Tribunal in the impugned order is in conflict with the specific provisions under the relevant rules viz., Annexure-A9 and also in the notification. A perusal of the impugned order would reveal that virtually, the Tribunal had not adverted to the challenge made by the applicants against Annexure-A1 notification based on Annexure-A10 notification and at the same time, it took into consideration the note under Annexure-A10 notification. Evidently, without deciding the tenability of the challenge made against clause 5 of Annexure-A1 notification, the Tribunal disposed of the original application directing the respondents therein/petitioners herein to adopt the principles in the note to Annexure-A10 and sending the applicants/ respondents herein on deputation to APS against two existing vacancies in the neighbouring division.

O.P(CAT)No.311 of 2016 15

12. A careful scanning of the impugned order would reveal the reasons that persuaded the Tribunal in issuing such a direction as aforementioned. It would reveal that one vacancy is available in the division in which the respondents are working. After passing the departmental examination, the respondents and two others were included in the list prepared and published in respect of the respective divisions. In the list prepared in respect of that division, the first respondent was holding rank No.2. All the three rank holders including the first respondent were sent for medical examination. First rank holder had failed in the medical examination and consequently, being the next rank holder, the first respondent was, in fact, selected for sending on deputation. It is the subsequent development that virtually denied him the said opportunity. In the case of a person who failed in the medical examination, there is provision for conducting a second medical examination. The first rank holder in the list concerned who failed in the first medical examination appeared in the second examination and got qualified. Since the said person was first rank holder and in the subsequent medical examination he got qualified, the first respondent was not deputed and the first rank holder was subsequently deputed to APS. The Tribunal took note of the APS O.P(CAT)No.311 of 2016 16 vacancy position immediately after the examination and subsequent to the drawing of the list. The Tribunal found that altogether, 15 unfilled vacancies were available. The Assistant Solicitor General submitted that already 13 candidates were sent on deputation as against 13 of such unfilled vacancies and now, only two unfilled vacancies are existing. At the same time, it is submitted that persons included in the list based on Annexure-A10 notification are awaiting orders of deputation in respect of the said vacancies. In this context, it is to be noted that those persons are virtually included in the list which was prepared based on the second notification issued in clear violation of Annexure- A9 rules. It is evident that the said list was prepared after conducting an examination circle-wise and in Annexure-A10 notification, it was specifically stated that in the case of existing vacancies in other divisions, persons from the list drawn pursuant to Annexure-A10 would be adjusted disregarding the division to which they actually belong.

13. It is a fact that even now provisions relating examination to be conducted in respect of 25% vacancies for which examinations are conducted for sending GDS on deputation to APS remains unamended. Rule 6 in Annexure A9 rules reads thus:-

"6.Power to Relax:-Where the Central Government is of the opinion that it is necessary or O.P(CAT)No.311 of 2016 17 expedient so to do, it may, by order, and for reasons to be recorded in writing, relax any of the provisions of these rules with respect to any class or category of persons."

The list in question was prepared with a view to send GDS to Army Postal Service and the respondents have already passed the competitive examination as also the medical examination. We have already found that there are two unfilled APS vacancies. As noticed hereinbefore, in the case of the first respondent but for the subsequent acquisition of qualification by the first rank holder in the list concerned, he would have been sent on deputation to Army Postal Service. As per the impugned order, the Tribunal directed the petitioners herein to send the applicants/respondents herein on deputation to Army Postal Service against the unfilled vacancies. After considering the relevant provisions in Ext.A9 rules and also the notification, we have already arrived at the conclusion that the said specific direction to send them on deputation cannot be maintained as it is against the notification. But, at the same time, taking into account the factual position obtained as above, we are of the view that it is a fit case where the petitioners be directed to consider the question of invocation of the power to relax the rules in the case of the applicants for the purpose of sending them on deputation taking into account the aforesaid peculiar situation obtained in this case and also the fact that in respect of the persons selected pursuant to the O.P(CAT)No.311 of 2016 18 subsequent notification, they are being sent on deputation disregarding the division to which they belong in case of existence of vacancies in any division.

14. In the light of the discussions as above, the order of the Tribunal to the extent it directs the petitioners to send the respondents on deputation to APS is set aside. At the same time, there will be a direction to the petitioners to consider the case of the respondents to send them on deputation to APS by invoking the power under Rule 6 in Annexure- A9. It shall be done as expeditiously as possible. Till a consideration as directed is made, the available two unfilled vacancies shall not be filled up.

The original petition is disposed of as above.

Sd/-

C.T.RAVIKUMAR Judge Sd/-

K.P.JYOTHINDRANATH Judge TKS/shg/spc

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