Central Administrative Tribunal - Cuttack
B K Parida vs D/O Post on 11 October, 2023
% ", tre, Soe, ie CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH OA 260/00018 of 2019 Reserved on: 22.09.2023 Pronounced an: [1 feof 02 3 CORAM:
HON'BLE MR. PRAMOD RUMAR D4S, MEMBER {A} HON'BLE MR. RAJNISH KUMAR RAL MEMBER () Bata Krishna Parida, aged about 39 years, §/o-Late Trinath Panda, resident of VHI/PO - Sialla, PS- Rabisuryanagar, Dist- Ganjam, Odisha, PIN- 761109, presently working as Overseer of Mails, O/o [P, Aska (East) Sub-division, Aska, Dist - Ganjam, PIN-7 61110, nod pplicant VERSUS i Union of india, represented through its Se cretary cum nethi - 0 10 7 16.
&. Chief Post Master General, Odisha Circle, At/P.6. Bhubaneswar, Disto- Khurda, Odisha ~ 757001,
3. Postmaster General, Berhampur Serhampur (Ganjam) ~ aes POO.
4 Superintendent of Post Offices, Aska Division, Aske {Ganjam), PIN-7G61110.
s Senier Superintendent of Post Offices, Berhampur Division, Bernampur (Ganiam) - 760CHN1.
vo RESPORTONES OP BP.
B, Sahani, Counsel Por the applicant > Mr. ty Nayak, Counsel For the respondents : Mr. 2 HA TAG FOOT of BONS QO KR DER The case of the applicant. in brief, is that on 25.10.2018 respondents published notification for holding Limited Departmental Competitive Examination (LDCE8) for filling up of the post of FA/SA from among the employees of MTS/Postman/ Mail Guard /Dispatch Rider. The said notification was circulated by the Suptd. af Post Offices, Aska Division in letter dated 29.10.2018. Applicant being a Postman, having fuliled all the conditions stipulated in the notification, submitted application for appearing the LOCK, on consideration of his application, he was issued admit card bearing Roll No. LGO/2016-18/Aska-0S, He presented himself with the admit card at the examination centre on the scheduled date and time, Le. an 09.12.2018, but he was not allowed to appear in the examination. He complaint against such action for not allowing him to appear at the examination te the CPMG, Odisha, PMG, Berhampur, and SPOs, Aska Division on 09.12.2018 and also Aled representation on TY 122018, Thereafter alleging no action, he has approached this Tribunal in the instant OA stating inter alla that since he fullled all the conditions stipulated in the notification and, in the UA 2800818 af 2019 consideration of his application, admit card was issued to him to appear at the examination, not allmwing Alm to appear at the examination and allowing others is highly illegal, arbitrary and discriminatory. Hence, he has prayed fur the following reliefs:
"(} Admit the Original Application, and ti} After hearing the counsels for the parties be further pleased to quash the LOCE examination held on 09.12.2018 in pursuant to the notification at Annexure -A/2 and direct the departmental respondents to hold fresh examination allowing the applicant to participate in the examination or fi} The departmental respondents may kindly be directed to declare the applicant as successful in respect to the said examination held on QO.12. 2018 And for {iv} Pass any other order(s} as the Homble Tribunal deem fust and proper in the interest of justice considering the facts and circumstances of the case and allow this O.A with casts,"
2. Respondents have fled their counter in which it has been stated that -
{a] The applicant fullilied all the eligibility conditions laid down In the notification but he has been visited with punishment of "reduction of pay by one stage for a perind of three years" vide order dated 04.08.2017 oer Fs and the currency of the said punishment was in forms from OL08 2017 _.
a"
we a OA ZOO AU of Se to 31.08.2020. Against the punishment, the applicant preferred appeal on 27.09.2017. On consideration of the appeal, the Appellate: Authority vide order dated 18.06.2018 modified the punishment to that the "Censure" but did not release the said arder due to pendency of inquiry on the complaint received, meanwhile, against the applicant alleging his fraudulent activity in Sislia BO. But. the applicant has managed to obtain the order and annexed to this OA to mislead this Tribunal.
{b} Upon inquiry, the Inspector of Past Offices, Aska [East) Sub Division vide letter dated 23.01.2018 and 17.08.2018 intimated that the applicant is an incompetent official and is not ft to hold the current post so also not Rt for promotion to higher cadre Le, PASSA.
{ce} The LDCE for promotion to PA/SA cadre was held on 09.12.2018 for the vacancies of 2016-17, 2017-18 & oH 31.42.2018 and the crucial dates of deciding service eligibility being 01.04.2016, O1.04.2017 and 01.04.2018 for the respective years of vacancies. Since the candidate of the applicant was clear from disciplinary cases and there was no currency of punishment on 01.04.2016 and 01.04.2017, his candidature for the vacancies of 2016-17 and 2017-18 was recommended by Respandent No4. Since the currency of punishment was efective from 01.09.2017, his candidature for the year <O18 was not 5 DA QOO AIS of BOTS recommended as per the report submitted by Inspector of Posts, Aska (West) Sub-Division vide letter dated 15.11.2018. Meanwhile, provisional admit card was issued to the applicant by respondent No.4 as the punishment was only current from 01.09.2017 to 3LOG.2020, (ad) The respondent No.3 coremunicated instruction vide letter dated 26.11.2018 not to permit the applicant to appear In the said examination scheduled to be held on 09.12.2018 due to currency of the punishment. The immediate authority of the applicant, Le. Inspector of Pasts, Aska (East) Sub Division reported his Incligibility te appear at the examination vide letter dated 15.01.2018. Accordingly, the applicant was not permitted to sit at the examination.
{e} The applicant was explained the above fact at the centre for not allowing him to sit in the examination by respondent No.4 and, therefore, no communication was made to him aon his representation dated OUTS 2018 and 17.12.2018.
(f} Respondents have also denied the stand of the applicant that the order of punishment of "reduction of pay by one stage for three years" Imposed by the DA was reduced to "Censure" by the AA. fy 8 QA 2ERLGNETS of WAG Accordingly, respondents have prayed that there was no irregularity /illegality committed by them in not allowing the appoint to appear at the LDCE held on Q9.12.2018, 3, Applicant fled rejoinder submitting therein that Suptd. of Post Offices, Aska Division fled counter to mislead this Tribunal stating that the order of the AA has never been issued to the applicant. The order af AA was duly communicated te the applicant vide Aska NO Reg. Letter No. ROB053 147 801N on 04.09.2018. After fling this OA, respondent No.4, Sri B.B.Negi became vindictive and threatened him vide letter dated 36.05.2019 to take disciplinary action for the reasan that as to why he has annexed the order dated 08.06/2018 converting the punishment of reduction of pay to that of "Censure" and the outcome of the letter is the charge memo issued to the applicant on 30.05.2019 under Rule 16 af CCS (CCA) Rules, 1965. Accordingly, it has heen averred that the entire gamut of exercise was made only to justify the Hlegal debarment of the applicant at the examination as a matter of right. Accordingly, applicant has reiterated the grant of rellef claimed in the OA,
4. Ld. Counsel for the applicant has reiterated the facts noted above and to substantiate his stand that debarring an employee to appear at the LDCE based on the punishment of "Censure" is Hlegal and arbitrary ? CA 2 NO0TS of 2018 has paced reliance on the decision of the Hon'ble High Court of Judicature at Madras in the case of CPMG, Tamil Nadu Circle & Ors. Vs. Registrar, CAT, Chennai and another (W.P.No. 19765 of 2015) and has prayed for the relief claimed in the GA.
S On the other hand, by reiterating the stand taken in the counter roted above, Ld. Counsel far the respondents has strongly opposed the contention of the Ld Counsel for the applicant and has submitted that the onder af the AA having not been issued te the applicant, it cannot be said that the punishment imposed on the applicant was modified te "Censure" it has also been argued that since the currency of punishment was in force, as per the conditions stipulated in the notification, the applicant was rightly debarred in appearing at the examination. This apart, it has been contended by him that on the face of the communication of the lnspector of Post Offices that the applicant is nota fit persons to hold the past of PA/SA, due to nefarious activities, which came out during inquiry, not allowing the applicant to sit in the examination for prametian te PA/SA was well justified requiring no judicial Intervention of this Tribunal. Accordingly, they have prayed far dismissal of this GA.
oy $29 QA SMNGOIS of SOLE 6, Before proceeding Auther Into the matter, it is relevant to place the operative portion of the order of the Hon'ble High Court of fudicature at Madras in the case of CPMG, Tamil Nadu Circle & Ors. Vs. Registrar, CAT, Chennai and another {supra}, which reads as under:
"8. If is trite that when an Appellate Authority passes an order, the order of the Lower Authority merges with the order of the Appellate Authority and even if and subject to any modification that may be made in the appellate order, the order of the Appellate Authority supersedes the order of the Lower Authority. The doctrine of merger takes place irrespective of the fact whether the Appellate Authority confirms or modifies the order passed by the Lower Authority. Ite would not make a difference whether the arder is one of reversal or of modification or of dismissal affirming the order appealed against. The doctrine of merger postulates that there cannot be more than one operative decree governing the same subject matter at a given point of lime.
19. As rightly relied on by the Tribunal, the Apex Court, while dealing with doctrine of merger in the case of Kunhayammed and Others V. State of Kerala and another reported in (2000) 6 SCC 359 held as follows:
"492 The logic underlying the doctrine of merger Is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority was subjected to a remedy available under the law before a superior foram then, though the decree or order under challenge continues to be effective and binding, nevertheless {ts finality is put in jeopardy. Once the superior court has disposed af the lis before jf either Se HA PG OER af SOT9 way-~whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree ar order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below."
20. In the light af the above, even though the second respondent was inflicted with the punishment of stoppage of increment, on appeal, the same was modified Inte one of Censure; bence, it can, at best, be construed that the second respondent was imposed with a punishment of Censure anby. Since Rule ? of CCS(CCA} Rules, 1965 clearly provides that Censure should not be a har to sit for departmental/promotional examination, the Tribunal has rightly set aside the order passed by the petitioners. The contention of the learned Standing Counsel appearing for the petitioners that as per the letter of the Directorate dated 703.2011, the second respondent is not entitled te sit for examination does not hold good, because it is a settled law that the circular or struction issued by the Department cannot override the Statutory Rules.
al. Accordingly, we du not find any reason to interfere with the order passed In the Reviews Applicatian iy the Tribunal. This Writ Petition stands dismissed. No costs. Consequently, M.P.Na.1 of 2015 is also dismissed."
7. From the decision, quoted above, ft is quite clear that in terms of Rule 7 of CCSCCCA} Rules, 19465 "Censure" should not be a bar to sit for departmental /promotional examination. According to the respondents, the order dated [8.062018 madifying the order of punishment of "reduction of pay to one stage for a period of three years" t that of oS OA 260 (00078 af 2018 pos "Censure" has not been issued to the applicant and, therefore, as per the order of the DA since the punishment was in force, the applicant as per the conditions stipulated in the notification was not entitled to sit at the examination. But, nowhere it is pleaded that the order of the AA dated 18.06.2018 Is a manufactured one and/or the signature appeared therein is forged. The applicant has specifically stated that the said order was communicated to him vide Aska HO Reg. Letter No, RQBOSS1TA7S0IN on 04.09.2018, this has not been controverted by the respondents by placing any corroborative evidence te the contrary. Further, it may be recorded that the apinion of the Inspector that the applicant is not a fit person te be promoted as PASSA is based on ne evidence or of that matter an the evidence, which was collected behind the back of the applicant. Going by the entire case of the applicant so also the respondents along with the materiais placed by both of them, ik establishes that in not allowing the applicant to sit at the examination held on 09.12.2018 is an outcome of total non-application of mind and without taking into consideration the records.
® In this OA, the prayers of the applicant are to quash the LDCE examination held on 09.12.2078 in pursuant to the notification at Annexure -A/2 and direct the departmental respondents to hold fresh 000i HW aa F cua dies ASR PF FOTS La TMA 2S SORTS StS examination allowing the applicant te participate in the examination OR és declare him as successful in respect to the said examination held an 09.12.2018. Insofar as the first prayer is concerned, it Is seen that the applicant has sought to quash the examination held on Q9.12.2018 but without making the candidates, whe appeared/qualified in the said examination, as party respondents In this OA. Similarly, it is seen that the alternative prayer sought by the applicant in this GA is impermissible in law ag through the examination the suitability ofan employee to hald the post of PA/SA is determined and when the applicant has not appeared the said examination, this Tribunal lacks any competency fo declare a candidate successful. However, considering the telltale Injustice caused to the applicant in the decision making process of the matter, for the ends of justice the following direction is issued. fa} The respondents/competent authority are hereby directed to hold special LDCE examination for the applicant for promotion to the post of PA /SA wD a period of 60 days from the date of receipt af a copy of this order;
{hb} In the event, the applicant comes out successiul 1 the examination, further necessary steps be taken te GA SAO SOO ER of BETS in accordance with rigs for his promotion /appointment to the edre of PA/SA from the date when the other qualified candidates In pursuance of the notification dated 25.10.2018 (A/2} were appointed to PASSA cadre.
{c} In the above event, the applicant shall be entitled to count his senfurity in the cadre of PAYSA from the retrospective date but shall not be entitled to any salary inthe cadre of PA/SA, {ad} Order to the above effect. as directed In paragraph {b} & (c) shall be issued within a period of further 60 days from the date of holding of the special LDCE as directed In paragraph (a) above.
9. In the result, the DA stands allowed to the aforestated terms by leaving the parties to bear their awn casts, [Rai sar Ral) ~ eamod Kumar Das) Member (hudl} Member (Admn.} RASPS MELEE OA AAAS AAS