Central Administrative Tribunal - Ernakulam
M K Amalraj vs The Secretary Department Of Posts ... on 31 October, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00619/2020
Monday, this the 31st day of October 2022
CORAM:
HON'BLE Mr.JUSTICE SUNIL THOMAS, JUDICIAL MEMBER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
M.K.Amalraj,
S/o.K.K.Kunjan,
Aged 29 years,
Working as Postman,
CSEZ P.O., Kochi - 682 037.
Residing at Madathimugal House,
Valayanchirangara P.O., Rubber Park,
Ernakulam - 683 556. ...Applicant
(By Advocate Mr.Nirmal.V.Nair)
versus
1. Union of India represented by the Secretary,
Department of Posts, Ministry of Communications,
New Delhi - 110 001.
2. Chief Post Master General,
Kerala Circle, Thiruvananthapuram - 695 033.
3. Assistant Post Master General (Staff),
Office of the CPMG, Kerala Circle,
Trivandrum - 695 033.
4. Senior Superintendent of Posts,
Ernakulam Division, Ernakulam - 682 011.
5. Assistant Superintendent of Post Offices,
Ernakulam Sub Division, Ernakulam - 682 024. ...Respondents
(By Advocate Mr.N.Anilkumar, Sr.PC)
This application having been heard on 10 th October 2022, the
Tribunal on 31st October 2022 delivered the following :
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ORDER
Per : HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER The applicant who is working as Postman is aggrieved by the rejection of his candidature to appear in the Limited Departmental Competitive Examination (LDCE) for appointment to the post of Postal Assistant/Sorting Assistant (PA/SA) for the year 2020 in the vacancies earmarked for the posts of Postman/Mail Guard/MTS/Despatch Rider.
2. For a better appreciation of the issues it is necessary to bring out details regarding the service of the applicant. The applicant had joined the Department of Posts as a Gramin Dak Sevak Mail Deliverer (GDSMD) at Kusumagiri by an order of appointment dated 10.12.2009. After he completed around 2 years and 8 months of service, his employment as GDSMD was terminated by an order dated 22.08.2012. The grounds for termination was that he had been mistakenly appointed in the first place as one of the other candidates in the selection to the post of GDSMD, one Shri.Ajith.V., had actually secured more marks than him in the SSLC. Aggrieved by the termination, he filed O.A.No.835/2012 before this Tribunal. The Tribunal immediately stayed the operation of the termination order and the applicant continued in service as GDSMD, Kusumagiri without any break. The O.A.No.835/2012 was finally disposed of on 27.11.2015. In the order, produced at Annexure A-1, it was indicated as follows :
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"5. .........Since the applicant was selected after a due process and was appointed with effect from 24.12.2009 we are inclined to direct the respondents to accommodate the applicant in any one of the posts in Ernakulam Sub Division, but only after Shri.Ajith V., is given the appointment order. The respondents are bound to issue appointment order to Ajith.V., if appointment order has not been so far issued.
6. xxxxxxxx
7. Considering all the aspects, we dispose of this application directing the respondents to issue appointment order to Shri.Ajith.V., immediately as GDSMD, Kusumagiri, who stood first in the selection. Since Shri.Ajith.V., has to be given appointment order, an order as to be passed against the applicant to vacate that post but the respondents will consider accommodating the applicant in any of the vacant posts within the Sub Division. The aforesaid direction to accommodate the applicant has to be complied with, within two months from the date of receipt of a copy of this order. No order as to costs."
3. In compliance with the above order in O.A.No.835/2012, an order was issued on the applicant on 15.07.2016 to vacate the post at Kusumagiri. However, he was issued with an offer of appointment as GDSMD II, Kakkanad West Branch Office in the same order. A little later, on 02.08.2016 the department called for applications for appearing in the LDCE for appointment to the vacancies in the cadres of Postman/Mail Guard. The application by the applicant for appearing in the LDCE was rejected on the ground that he did not possess 5 years regular service in order to be permitted to appear for the LDCE. However, the position of the applicant was that he had worked for more than 6 years and 3 months in the capacity of a GDS as on 01.04.2016 and thus possessed the requisite qualifying service for appearing in the LDCE for Postman/Mail Guard. When the respondents did not accept this position, he filed -4- O.A.No.836/2016 before this Tribunal, seeking a direction to take into account his entire service as GDSMD for consideration of his candidature for the LDCE for Postman. The Tribunal passed a final order dated 17.03.2017 in O.A.No.836/2016, after having earlier permitted him through an interim order to appear provisionally in the examination on 05.10.2016. In the final order of the Tribunal it was indicated as follows :
"11. ..........Therefore, as on 01.04.2016 the applicant must have had 5 years of service. Since the applicant was appointed as GDSMD, Kusumagiri as per order dated 10.12.2009 there can be no doubt that the applicant had completed more than 5 years of service. It is true that the service rendered by him after filing of the O.A was pursuant to the interim order passed by this Tribunal. But considering the totality of the circumstances it cannot be said that the period of service rendered by the applicant should be totally ignored. It was only on account of the mistake committed by the respondents that instead of another person, applicant happened to be appointed as GDSMD, Kusumagiri. Though that selection was found to be wrong and another person Shri.Ajith was directed to be appointed as GDSMD still we are inclined to hold that the service rendered by the applicant as GDSMD, Kusumagiri cannot be ignored for the purpose of reckoning the qualifying service rendered by him. Since he had worked as GDSMD for more than 5 years, it has to be held that the condition specified in clause 5(2) of Annexure A- 9 stood satisfied.
12. Annexure A-14 is the list of candidates who were declared to have been selected for appointment to the cadre of Postman in Ernakulam Division. There were two vacancies reserved for Scheduled Caste candidates. Only one, namely the applicant, had passed in the examination but his candidature was withheld as it was then noted that he did not have the required qualifying service. Since the applicant has secured the eligibility mark for promotion as Postman in the examination conducted pursuant to Annexure A-9 the respondents have to declare the applicant as selected to the post of Postman in the Scheduled Caste category to which the applicant belongs. In the light of the direction just now made by us, the respondents are bound to declare the applicant as having been selected for appointment to the cadre of Postman -5- in the Scheduled Caste category. It is ordered accordingly. The respondents will issue appropriate orders appointing the applicant as Postman, which shall be done within six weeks from the date of receipt of a copy of this order.
13. Original Application is allowed as above. No order as to costs."
4. The above order was passed on 17.03.2017. However, the respondents appointed the applicant as Postman only on 14.11.2017, ie., much after the prescribed 6 weeks from the date of the order. It is submitted by the applicant that the respondents intentionally delayed the appointment by almost 8 months. The appointment order dated 14.11.2017 has been produced at Annexure A-5. It is indicated therein that the applicant has been appointed as Leave Reserve Postman, Kochi Head Office Unit attached to CSEZ P.O. Significantly, it has also been mentioned that the applicant has been selected for appointment to the cadre of Postman under the SC category in the LDCE held on 09.10.2016 and on successful completion of the prescribed training, he has been ordered to be appointed as Temporary Postman, Ernakulam Division. The point which is made by the applicant in this O.A is that he was fully eligible to be appointed with effect from 16.11.2016, which is the date of appointment of the other candidates, as per the order issued in their cases at Annexure A-3. He was denied the appointment from that date only due to the erroneous stand taken that he did not have the requisite qualifying service for consideration for appointment. It is submitted that the mistake or delay in appointing the applicant is purely attributable to the department and that this issue has to be considered by the department. It is submitted that if the right -6- thing had been done at the right time the applicant would have been appointed with effect from 16.11.2016 along with other candidates who had passed in the LDCE conducted for promotion to the post of Postman in the year 2016.
5. It is submitted by the applicant in this O.A that this earlier mistake is being repeated once again by the rejection of his candidature for the LDCE for selection for the available vacancies in the cadre of Postal Assistant/Sorting Assistants for 2020. The notification for this LDCE, dated 09.11.2020 which has been produced at Annexure A-7 in the O.A, has a requirement that Postmen/Mail Guards with three years regular service in the grade will be eligible to appear in the said examination for selection to the post of PA/SA. The applicant had applied pursuant to this; however, he was not issued with an admit card for the examination, presumably on the ground that he did not have the required 3 years of regular service in the grade by the consideration of his service only from 14.11.2017, when he was appointed as Postman after the order of this Tribunal in O.A.No.836/2016. (It is to be noted that the date of vacancy is treated as 1 st January of the Calendar year, though it had been extended by 3 months upto March 31st for the year 2020.) He submits that, in the fact and circumstances of the case, he had been eligible to be appointed against the vacancies earmarked for SC candidates with effect from 16.11.2016 itself along with the other candidates who had passed the LDCE for the post of Postman and had been appointed. It is submitted that the Tribunal had -7- clearly found in O.A.No.836/2016 that he had been denied the appointment owing to the erroneous stand taken by the respondents that he did not possess the requisite qualifying service as GDS for being considered for selection to the post of Postman. The respondents had reckoned his appointment as GDSMD only with effect from 15.07.2016 and had not counted his service from 10.12.2009, the date when he had joined as GDSMD, Kusumagiri. After the Tribunal had passed the orders in O.A.No.835/2012 allowing him to continue in service, first by way of an interim order and later through consideration by the respondents, it was incumbent on them to have considered his service as GDSMD right from 10.12.2009. In other words, he submits that the issue is being raised once again at the time of promotion by selection of Postman to the posts of Postal Assistant/Sorting Assistants. It is submitted that if the right thing had been done by the respondents at the right time he would have been appointed along with other candidates as shown in Annexure A-3 as Postman with effect from 16.11.2016. In that case he would have had the requisite qualifying service as on 01.01.2020 which is the qualifying date of vacancy for 2020. In addition to this, the respondents had delayed his appointment order even after the Tribunal had intervened in his favour and had granted him the appointment 8 months after the final order dated 17.03.2017 in O.A.No.836/2016 at Annexure A-4 even though the Tribunal had specified six weeks.
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6. The applicant has brought to our notice the judgments of the Hon'ble Supreme Court in Nirmal Chandra Bhattacharjee & Ors. vs. Union of India & Ors. (1991) Supp, (2) SCC 363 and in State of U.P & Ors. vs. Mahesh Narain & Ors. (2013) 4 SCC 169 that mistakes or delays on the part of the departments ought not to be permitted to recoil on the employee. It is submitted that here as well the applicant should not be denied the eligible service for mistakes and delays on the part of the respondents. Further, he has also brought to our notice the directions of the Hon'ble Supreme Court in Union of India & Ors. vs. K.B.Rajoria (2000) 3 SCC 562, wherein, the Hon'ble Supreme Court had conclusively declared that 'regular' service does not mean actual physical service and also includes notional service. It was held that notional service was something for which the incumbent was entitled to be counted for as he had been denied his service owing to reasons attributable to the department. On this analogy, it is submitted that the applicant, who was entitled to be appointed as Postman with effect from 16.11.2016 along with the other successful candidates, is thus entitled to have his appointment reckoned notionally with effect from that date (16.11.2016). He is also entitled to have the entire service from 16.11.2016 reckoned as qualifying service for being considered for selection by promotion to the post of Postal Assistant/Sorting Assistant. Further, it is submitted that there were two vacancies in the post of Postman reserved for SC candidates in the LCDE which had been conducted in 2016. Thus, there was no doubt at all that there was a vacancy available as on 2016 and that the applicant would have been considered, as he was the sole -9- SC candidate who was successful in that LDCE. He, thus, prays for correcting the erroneous stand taken by the respondents and to declare that he was entitled to be notionally appointed with effect from 16.11.2016, the date on which similarly placed successful candidates in the LDCE for Postman conducted in 2016 were promoted. He also prays to have his entire service with effect from 16.11.2016 reckoned as qualifying service for all consequential benefits including seniority, promotion etc. and, accordingly, also for being considered for promotion to the post of Postal Assistant/Sorting Assistant pursuant to the Annexure A-7 notification.
7. The respondents have filed a reply statement in which while detailing the sequence of events which are more or less as above, have reiterated the point that as the applicant had joined the post of Postman only on 17.11.2017, he has had only a 2 year 1 month and 15 days service as on 01.01.2020. Hence, his candidature was rejected and aggrieved by that he has filed this O.A. The interim order which was sought for by the applicant was not granted by the Tribunal at the time of initial hearing. The applicant then approached the Hon'ble High Court of Kerala in O.P.(CAT) No.223/2020. The Hon'ble High Court of Kerala in its order dated 18.12.2020 allowed the applicant to appear in the LDCE held on 20.12.2020. Later, the Hon'ble High Court disposed of the O.P(CAT) No.223/2020 vide its order dated 07.01.2021 making it clear that their earlier order dated 18.12.2020 in the O.P should be treated as the interim order in the pending O.A.No.619/2020 (ie., this O.A), which will be subject -10- to the result of the O.A. It was also ordered that the direction sought by the applicant for provisional declaration of the results pursuant to the written examination in which he was allowed to participate was for the Tribunal to take a decision on, in case he filed an appropriate Miscellaneous Application before the Tribunal for making out this interim relief. Having so ordered the Hon'ble High Court found that the matter had become practically infructuous in the petition and disposed the same.
8. The applicant then filed an M.A for direction (M.A.No.508/2021) to produce his result in the LDCE in which he had been allowed to participate for appointment to the cadre of Postal Assistant/Sorting Assistant for the year 2020 pursuant to the Annexure A-7 notification. This was considered by this Tribunal on 02.09.2021. The learned counsel for the respondents was directed to produce the result of the applicant in a sealed cover on or before the next date of posting. The sealed cover containing result was then produced and opened on the next date of hearing, on 24.09.2021. It was found in the result sheet that it was recorded that the applicant has succeeded in the LDCE and had got minimum required marks, but that he was not having the minimum required three years service. The said M.A was accordingly closed.
9. It is submitted by the respondents that O.A.No.836/2016 was disposed of by the Tribunal on 17.03.2017 and in compliance to the order, the applicant had been appointed as Postman vide Annexure -11- A-5 letter dated 14.11.2017. It is submitted that there was no deliberate delay on their part in the appointment of the applicant and that they (the respondents) had also sought extension of time from the Tribunal by filing an M.A., as the case had to be first taken up with the Ministry of Law and Justice, Branch Secretariat, Chennai before implementing the order. Further, the verification of documents could not be completed within the allowed time. Hence, the applicant could be appointed only on 14.11.2017 as Leave Reserve Postman, Kochi Head Office attached to the CSEZ SO. It is submitted that as the admission of the applicant in the LDCE to the cadre of Postman had been in dispute, his result had been withheld and not published when the results of the other eligible candidates was published. It was only after the Tribunal had passed the final orders in O.A.No.836/2016 at Annexure A-4 that he could have been appointed. Thus, his date of regular service can only be counted from the date on which he had joined the cadre ie., 14.11.2017, the date when he joined as Postman. As such, he had not completed 3 years of service as on 01.01.2020 and was not eligible to appear for the LDCE to the cadre of PA/SA for the vacancies of the year 2020.
10. It is submitted by the respondents that the Hon'ble Supreme Court had held in Nirmal Chandra Sinha vs. Union of India & Ors. (2009) 1 SCC 671 that "it is settled law that promotion takes effect from the date of occurrence of vacancy or creation of posts. An employee does not have an -12- indefeasible right to promotion. His right is for consideration of promotion only." Further, the Hon'ble Supreme Court has held in Y.Najithamol & Ors. vs. Soumya S.D & Ors., in C.A.No.90/2015 delivered on 12.08.2016 that the appointment of GDS as Postman is to be considered as direct recruitment and not promotion. This has been done on the ground that the GDS is a civil post but is not a part of regular service of the Postal Department. Further, in A.Janardhanan vs. Union of India (1983) 2 SCR 936 the Hon'ble Supreme Court has held that a later direct recruit cannot claim seniority from a date before his birth in service or when he was in school or college. Similarly, it was pointed out in A.N.Pathak vs. Secretary to the Government (1987) Supp. SCC 763, that the slots cannot be kept reserved for the direct recruits for retrospective appointments. It is the contention of the respondents that flowing from these judgments the applicant has to be considered as a direct recruit to the cadre of Postman and that there is no way that his appointment can be antedated. His service can be counted only from the date of appointment ie., 14.11.2017. Thus, he was not eligible to apply pursuant to Annexure A- 7 notification as he had attained a regular service of only 2 years 1 month and 15 days in the Postman cadre as on 01.01.2020. The Tribunal had disposed of the O.A.No.836/2016 only on 17.03.2017 and the contention of the applicant regarding the non-publishing of his result with the other candidates on 16.11.2016 cannot be accepted. There had been no wilful delay on the part of the respondents in implementing the order of the Tribunal after that date due to the reasons indicated earlier. The service of -13- the applicant only began when he joined the post after he was offered employment as the appointment to the post of Postman is by direct recruitment.
11. In his rejoinder the applicant submits that the respondents have again reiterated same contentions which had been specifically considered and rejected in the Annexure A-4 order of this Tribunal in O.A.No.836/2016. It is to be noted that the Tribunal had found in the Annexure A-4 orders that the applicant had the requisite experience as a GDSMD as required in the notification for selection to the cadre of Postman. The operative portion of the Annexure A-4 order had categorically directed the respondents to declare the applicant as having been selected for appointment to the cadre of Postman in the SC category. Though the respondents were directed to issue consequential orders of appointment of the applicant within six weeks from the date of receipt of the copy of the order, they had deliberately further delayed the appointment even when there were two vacancies earmarked for SC category at the time of selection itself. Thus the applicant had been excluded from the selection and had been denied appointment on account of the illegality committed by the department. On the basis of these facts he is entitled to have his appointment antedated notionally with effect from the date of appointment of the other candidates who were selected ie., to 16.11.2016. The applicant has referenced for consideration the settled proposition of law as held by the -14- Hon'ble Supreme Court in Sanjay Dhar vs. J&K Public Service Commission (2000) 8 SCC 182; Lakshmana Rao Vadavalli vs. State of A.P (2014) 13 SCC 393 and recently in C.Jayachandran vs. State of Kerala (2020) 5 SCC 230.
12. The applicant further submits that there is no legal principle which requires any establishment to acquire administrative sanction to comply with the binding orders of the Tribunal. The delay was purely attributable to the respondents and the applicant cannot be made to suffer for the same. He is thus entitled to have notional service from 16.11.2016 reckoned as his qualifying service for being considered for selection to the post of Postal Assistant/Mail Guard. Further, it has also been held and settled in K.B.Rajoria (supra) that regular service does not imply actual physical service but also includes notional service that was denied on account of the illegality committed by the respondents. If the right thing had been done at the right time, the applicant would have had three years regular service as a Postman as on 01.01.2020. He would have been entitled to be considered for selection pursuant to Annexure A-7 notification. The judgments in Nirmal Chandra Sinha (supra) and Y,Najithamol (supra) brought out by the respondents are not relevant in the circumstances of this matter. Nirmal Chandra Sinha (supra) was a case for reckoning of notional service from the date of occurrence of vacancy, whereas, Y.Najithamol (supra) will not affect the claim of the applicant. All of the precedents were in connection with cases of direct recruitment. In -15- fact, it is contended that the directions of the Hon'ble Supreme Court in C.Jayachandran (supra) are directly relevant as it has been held, as under, in paragraph 39 therein :
" .........The judgment referred to by the learned counsel is not helpful to the arguments raised as the appellant therein sought seniority as direct recruit from the time when the vacancies occurred. To raise such an argument, reliance was placed upon judgment of this Court reported in Union of India vs. N.R.Parmar, wherein it was held that a person is disentitled to claim seniority from the date he was not borne in the service. The said finding is in the context of the claim of the appellant to the claim seniority from the date of availability of vacancies; whereas in the present case, the appellant is claiming seniority from the date the other candidates in the same selection process were appointed but the appellant is excluded on account of an illegal act of the High Court of the moderation of marks. Therefore, the said judgment is not of any help to the arguments raised.
The Office Memorandum of the Government of Kerala dated 22.12.2010 and later notification of the State Government appointing the appellant is that of setting aside of selection of three candidates and appointing the appellant by assigning him Sl.No.41 and Sl.No.42 to Badharudeen. It is in tune with the merit while preparing the select list. Therefore, such merit could not be disturbed only for the reason that the appellant has not disputed it for 1 year and 2 months after his appointment. Admittedly, a seniority list was circulated in the year 2009 before the appointment of the appellant, thereafter, no seniority list was circulated. The appellant has already submitted representation claiming seniority which representation was accepted on 19.10.2017. An employee has no control over the employer to decide the representation or to finalise the seniority as per his wish. The High Court has taken long time to decide the seniority claim. That fact will not disentitle the appellant to claim seniority from the date the other candidates in the same selection process were appointed. The fact that some of the officers have been given selection grade will not debar the appellant to claim notional date of appointment as the appellant has asserted his right successfully before the Division Bench in an earlier round and reiterated such right by way of a representation. The delay in deciding the representation by -16- the High Court cannot defeat the rights of the appellant to claim seniority from the date the other candidates were selected in pursuance of the same selection process."
It is submitted that in the instant case, as in C.Jayachandran (supra), the applicant's claim is for notional appointment with effect from the date of appointment of the other candidates in the same selection as he was denied such appointment only on account of the illegal stand taken by the respondents. The applicant submits that other decisions cited by the respondents are having no relevance or applicability to the facts of the case in hand.
13. We have carefully considered all the above contentions. We have also heard learned counsel for the applicant, Shri.Nirmal V Nair as well as learned counsel for the respondents Shri.N.Anilkumar, Sr.PC. In addition to the points brought out above, learned counsel for the applicant has brought to our notice at the time of hearing judgment of the Hon'ble Apex Court in S.Krishnamurthy vs. General Manager, Southern Railway (1976) 4 SCC 825. This was a case of a railway employee who was not considered for a promotion post of Traffic Inspector, although others similarly situated like him, were absorbed in the post. This was later corrected by the Railway Administration but by that time others had been absorbed as Traffic Inspectors before him. He moved for relief for being treated as Traffic Inspector with effect from the same date when other similarly situated employees were so absorbed. It was directed that the appellant should be fitted into the scale of pay at a point where full notional seniority to which -17- he would have been entitled had the right thing been done at the right time. The Hon'ble Supreme Court also made it clear that, while seniority is being notionally extended to him from a particular date, the employee would not be entitled to any salary of the post prior to the date in which he had came to the High Court with his Writ Petition. Learned counsel submits that the Hon'ble Supreme Court in that matter had found that for the purpose of promotion seniority may be reckoned from the date he appeared before the High Court, but for qualifying period if there is such a condition for promotion his notional service from the date when those others similarly situated were so absorbed.
14. On the other hand, learned Sr.PC for the respondents made two additional points in this regard. He submits that the applicant had not contemporaneously challenged his appointment to the post of Postman on 14.11.2017 to be antedated and he had continued without demur from that date. It was only when he was disqualified in 2020 for appearing in the LDCE to Postal Assistant that he made the challenge. Learned counsel submits that he is estopped from challenging the appointment as Postman as it is unduly delayed. Only if his date of appointment as Postman is antedated would he get qualified with 3 years experience as on 01.01.2020, which, in other words, is only a subsequent action after antedating his first appointment. As such, it is belated and time barred. The second point made by the learned counsel for the respondents is that the Tribunal in its order on 17.03.2017 in O.A.No.836/2016 had directed the respondents to give -18- appointment within 6 weeks. That 6 week period in the normal course would have come to end on 05.05.2017. Even if calculated from 05.05.2017, the applicant would not have three years experience as on 01.01.2020. Further, if three year period is calculated even from the date of the order in the O.A.No.836/2016 ie., 17.03.2017, it would start from 17.03.2020, which also does not give him qualification for appearing in the examination as the cut off date is 01.01.2020. (However, it is to be noted that there is a DoP&T Circular allowing extension of the qualifying service by three months to 31.03.2020 for the vacancy year 2020). Thus, on both these grounds the O.A may be dismissed as his claim is not acceptable. The judgments of the Hon'ble Supreme Court that have been brought out by the respondents will support their case that promotion can take place only by effectively counting service from the date of appointment and joining and not from any other date. The post of Postman is a direct recruitment and not a promotion as has been held in Y.Najithamol (supra). Thus his service can be counted only from his date of appointment, ie., 14.11.2017.
15. In addition, learned Sr.PC for the respondents has also drawn attention to a recent order of this Tribunal in O.A.No.180/107/2018 dated 19.09.2022 passed by this Bench dismissing the matter in a similar case of a GDSMD who had applied for competing in the examination for further promotion as Postman/MTS etc. The facts are very similar to the facts in the present case as the applicant therein was also a GDSMD who had been given an offer of appointment, which was later terminated due to some -19- irregularity in the selection process of GDSMD not attributable to her. She had come to this Tribunal and had got a favourable initial order (which was also confirmed later from the Hon'ble High Court) to continue in service. We have considered these two matters and on going through the facts, we find that there are some differences in the issues being considered in this matter and those in the said O.A.No.180/107/2018. The basic facts are similar as the applicant therein had prayed that her services should be taken as continuous and regular as she had completed more than 5 years of service with effect from 08.08.2011 with the interim order of the Tribunal and Hon'ble High Court helping her to continue in service. Thus, she had contended that she was eligible to be appear for the examination for the 2017-18 vacancies for Postman. However, while dismissing the O.A it was noted by this Bench that the issue boiled down to whether there was sufficient support for the applicant's position that her service should be counted with effect from her initial engagement as GDSMD II from 08.08.2011 or not? After examining the matter in detail it was found that regular engagement only could be counted from the date when she was engaged by the respondents as GDSMD for the second time, ie., with effect from 20.01.2017. It was held that her service before that date could not be taken as legitimately proper for counting as qualifying service for the post of Postman, as by doing so, it would be in effect recognizing that her appointment on 08.08.2011, which had been declared as illegal and irregular, being now considered legitimate. It is to be noted that the Tribunal, in its earlier order, had agreed with the respondents that the -20- selection process had been irregular. The Hon'ble High Court of Kerala had also expressed the opinion that even without the junction of the Tribunal the competent authority could have cancelled the selection process. The Hon'ble High Court had also found infirmities with the process of selection in that case and, in fact, had allowed the whole process of selection to the said post to be cancelled and re-started/ab-initio.
16. The distinction of this case in comparison to the above however is that here, even though the selection process was found to be wrong, it was not cancelled and a new selection process initiated. It was ordered by this Tribunal in O.A.No.835/2012 that the person who had secured higher marks in the SSLC than the applicant, ie., Shri.Ajith.V., should be given the appointment. At the same time the Tribunal had made it clear in the order in O.A.No.835/2012 that the applicant should be accommodated in any of the vacant posts available in the Division. Hence, the distinction is that the applicant, herein, who was working as GDSMD from his date of joining on 10.12.2009 was specifically allowed by the Tribunal to continue to do so whereas in the matter dealt with in O.A.No.180/107/2018 the whole selection process itself had been cancelled and restarted. In that matter the applicant was allowed to take part in the new process when it was brought to notice that she was not likely to be selected, she was allowed to absorbed in an alternative post only as a special consideration. We, therefore, do not think that if in case we find in favour of the applicant in this O.A we would be contradicting our finding in O.A.No.180/107/2018 as the basis of our -21- order in that O.A was that there was a full cancellation of the selection process as GDSMD and a restarting of the same, ab initio, unlike in this matter. On the other hand there were positive orders in favour of the applicant herein in two instances directing that he be immediately adjusted against other vacant posts.
17. It is clear to us from the orders passed by the Tribunal in O.A.No.835/2012 onwards that this Tribunal has been consistently considering that the service of the applicant as GDSMD should be taken with effect from 10.12.2009. Wherever the respondents have failed to take this into consideration, as in not counting the service as GDSMD to be counted for consideration to the post of Postman, this Tribunal has ruled in the applicant's favour and directed the respondents to count service accordingly. No appeal had been preferred by the respondents against this. The order passed in the later O.A.No.836/2016 was on the basis that having completed five years service as GDSMD and passed the examination to the post of Postman, the applicant had to declared as having been selected for appointment to the cadre of Postman in the Scheduled Caste category. In these facts and circumstances, we find that in light of the previous orders of this Tribunal that a clear case is made for considering his service to be notionally counted with effect from the date when his similarly situated colleagues were appointed as Postman as a result of the LDCE held on 09.10.2016 in which he had also competed. As per Annexure A-3 they were all appointed as Postman with effect from 16.11.2016. The applicant having -22- taken part in the same examination, cannot be taken to be treated differently. He is also entitled for his services to be considered as a Postman on a notional basis in the light of the directions of the Hon'ble Supreme Court in K.B.Rajoria (supra) as well as C.Jayachandran (supra) with effect from that date as well as in line with the reasoning given in S.Krishnamurthy (supra) referred to in paragraph 13 above. We do not think that the argument made by the respondents that he had made no representation for antedating his service before filing this O.A as very relevant as he obviously approached the authorities when the issue had affected him at the time of promotion.
18. We, therefore, direct the respondents to consider his service as Postman on a notional basis to be counted with effect from 16.11.2016, on which date similarly placed successful candidates in the LDCE were appointed as Postman. This date may be taken as the date on which his service can be taken as qualifying service for purposes of consideration for promotion to the post of Postal Assistant/Sorting Assistant. If in case, as has been brought out during the course of the hearing, the applicant has qualified under the SC category in the LDCE held for 2020 to the post of Postal Assistant/Sorting Assistant, the respondents may issue promotion orders in the matter for the applicant within a period of one month from the date of receipt of a copy of this order. Further, in case if orders in respect of other candidates who appeared in the same LDCE have been issued and they have since joined in the posts of PA/SA, the applicant may be given -23- notional seniority from the date from which the other candidates have joined. This is in order to avoid him from coming again to this Tribunal on this issue on a future occasion.
19. The O.A is allowed as above. No order as to costs.
(Dated this the 31st day of October 2022)
K.V.EAPEN JUSTICE SUNIL THOMAS
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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List of Annexures in O.A.No.180/00619/2020
1. Annexure A-1 - A copy of the final order dated 27.11.2015 in O.A.No.835/2012 on the files of the Hon'ble Tribunal.
2. Annexure A-2 - A copy of the interim order dated 05.10.2016 in O.A.No.836/2016 on the files of the Hon'ble Tribunal.
3. Annexure A-3 - A copy of the Memo No.B-6/11-2/2016-17 dated 16.11.2016 issued by the 4th respondent.
4. Annexure A-4 - A copy of the order dated 17.03.2017 in O.A.No.836/2016 on the files of the Hon'ble Tribunal.
5. Annexure A-5 - A copy of the Memo No.B-6/11-2/2016-17 dated 14.11.2017 issued by the 4th respondent.
6. Annexure A-6 - A copy of the Order No.B-3/13-1 dated 08.06.2020 issued by the 4th respondent.
7. Annexure A-7 - A copy of the Notification No.Rectt/10-3/2020 dated 09.11.2020 issued by the 2nd respondent.
8. Annexure A-8 - A copy of the application dated 27.11.2020 submitted by the applicant.
9. Annexure A-9 - A copy of the judgment dated 07.01.2021 in O.P. (CAT) No.223/2020 on the files of the Hon'ble High Court of Kerala.
10. Annexure A-10 - A copy of the Letter No.B-6/11-6/2020 dated 01.04.2021 issued by the 4th respondent.
11. Annexure A-11 - A copy of the Letter No.B-6/11-6/2020 dated 08.04.2021 issued by the 4th respondent.
12. Annexure A-12 - A copy of the Hall Permit for the Data Entry Skill Test issued to the applicant.
13. Annexure A-13 - A copy of the Order No.Rectt/10-3/2020 dated 19.05.2021 issued by the office of the 2nd respondent.
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