Central Administrative Tribunal - Ernakulam
Devayani P vs The Chief Postmaster General on 9 March, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.882/2013
Wednesday, this the 9th day of March, 2016
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P. GOPINATH, ADMINISTRATIVE MEMBER
Devayani P., W/o.K.Balan,
Postman, Tikkoti.
Residing at Kausthubham,
Pallikkara, Payyoli -673 522. ...Applicant
(By Advocate Mr.Martin.G.Thottan)
Versus
1. The Chief Postmaster General,
Kerala Circle, Trivandrum b� 695 033.
2. The Superintendent of Post Offices,
Vadakara Division, Vadakara - 673 101.
3. K.T.Surendran,
GDSMD, Melur,
Edakkulam, Vadakara Division. ...Respondents
(By Advocates Mr.P.G.Jayan,ACGSC [R1&2] &
Mr.O.V.Radhakrishnan,Sr. Along with Mrs.K.Radhamani Amma
[R3])
This application having been heard on 11 th February 2016, the
Tribunal on 9th March 2016 delivered the following :
ORDER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER The applicant was working as Postman after being regularly appointed in the year 2010. The Original Application is filed aggrieved by the attempt on the part of the respondents to terminate her service in order to accommodate some persons in compliance with the directions of this Tribunal. It is submitted that the impugned order is issued in purported compliance of the directions in O.A.No.423/2008. In the said O.A the relief sought is to fill up the existing vacancies from the year 2002 onwards accrued on account of want of approval of Screening Committee on the basis of combined seniority. The selection conducted in the year 2010 for the vacancies which arose in the said year, after the disposal of the O.A.No.423/2008, is not under challenge anywhere. The respondents have not a case that applicants are not eligible for being considered for promotion. In the above facts and circumstances impugned action of the respondents at this point of time is totally unjustifiable. Moreover, the issue of whether the appointment of EDA's as Postman by way of direct recruitment or promotion has not attained finality since the matter between the parties is still pending before the Apex Court. Relief sought by the applicant is to declare that he is entitled to continue in the post of Postman in pursuant to Annexure A-2 appointment and posting orders.
2. The respondents in the reply statement aver that Shri.K.J.John and Smt.P.Devayani while working as GDSMC Muthukad and GDSBPM, Kappad were appointed as Postman Perampra and Postman Tikkoti respectively against the two vacancies set apart for GDS on the basis of selection cum seniority for the year 2010. The appointment was made overlooking Shri.P.Chandran, K.M.Chandrasekharan and K.T.Surendran as they had crossed 50 years of age and hence not eligible for selection as Postman as per the 1989 Postman Recruitment Rules. O.A.No.423/2008 filed by K.Satheeshan, N.T.Velayudhan, P.Chandran, K.M.Chandrasekharan and K.T.Surendran was allowed by the Tribunal declaring that the appointment from GDS/EDA to the post of Postman is only by promotion and not by direct recruitment, and hence the age restriction is not applicable and directed the respondents to consider the applicants in accordance with their seniority and eligibility. As regards implementation of O.A.No.423/2008 Shri.K.Satheeshan and N.T.Velayudhan have already been selected as Postman. Shri.P.Chandran was appointed as Postman notionally with effect from 21.11.2010, the date of joining of Shri.K.J.John his immediate junior, and adjusted against the unfilled vacancy of 2008 and termination notice was issued to Shri.K.J.John and Smt.P.Devayani in order to comply with the directions of the Tribunal in O.A.No.423/2008 for appointing Shri.K.M.Chandrasekharan and Shri.K.T.Surendran as Postman in the 2010 vacancy under GDS seniority quota without observing any upper age limit of 50 years. Aggrieved by this Shri.K.J.John and Smt.P.Devayani filed the O.A. Shri.P.Chandran vide his letter dated 5.9.2013 categorically declined the promotion to the cadre of Postman on health grounds. Subsequently Shri.K.M.Chandrasekharan, GDSMC Changaroth one of the two left out applicants in O.A.No.423/2008 was appointed as Postman against the unfilled vacancy for the year 2008 vide this Office Memo No.OA 423/2008 dated 3.10.2013. Termination notice issued to Shri.K.J.John Postman Perampra, in order to implement the orders of the Tribunal by appointing Shri.K.M.Chandrasekharan, GDSMC Changaroth, against one of the vacancies of Postman for the year 2010 under seniority quota was cancelled by respondent Office Memo No.OA423/2008 dated 3.10.2013. In view of these facts, as far as Shri.K.J.John the 1st applicant is concerned, the O.A is infructuous. Smt.P.Devayani joined as Postman Tikkoti on 21.11.2010. The probation period has been successfully completed by the applicants but confirmation orders are yet to be issued. She was appointed as Postman Tikkoti against the vacancy set apart for GDS on the basis of selection cum seniority for the year 2010. The Hon'ble High Court has also dismissed the WPC No.7188/2010 filed against the orders of the Tribunal allowing the O.A.No.423/2008 by the common order dated 20.12.2011. In the common order OP(CAT) No.1696/2011 against O.A.No.349/2009 was also dismissed. O.A.No.349/2009 was filed by P.M.Padmanabhan on the same legal issue raised in O.A.No.423/2008 and in the order the Tribunal has contended that the selection of the 5th respondent viz. Shri.N.K.Balachandran was illegal. It is therefore submitted that in the light of the above, the selection and appointment of the 5 th respondent to the cadre of Postman overlooking the seniority of the applicant was rendered as illegal and the Tribunal has quashed the appointment of the 5 th respondent ie. Annexure A-4. Being a connected case the above observation is squarely applicable in implementing the judgment in O.A.No.423/2008 also. In order to appoint Shri.K.M.Chandrasekharan and Shri.K.T.Surendran the respondents are left with no other option but to terminate the services of Shri.K.J.John and Smt.P.Devayani the applicants whose selection overlooking the applicants in O.A.No.423/2008 was held to be illegal by this Tribunal in O.A.No.349/2009.
3. In the respondents' Division there were a total of 13 vacancies under 25% GDS seniority quota during the period from 2004 to 2010. All the said vacancies except the vacancy for the year 2008 have already been filled up. Hence Shri.P.Chandran was appointed as Postman notionally with effect from 21.11.2010 and his appointment was adjusted against this unfilled vacancy. The respondent has no means other than terminating the appointment of the applicants who were junior to the applicant in the O.A.No.423/2008 in order to fully comply the directions of the Tribunal in O.A.No.423/2008, and to accommodate Shri.K.M.Chandrasekharan & Shri.K.T.Surendran as Postman, under GDS seniority quota without observing any upper age limit of 50 years, as the Tribunal has categorically contended that the appointment of GDS to Postman is by promotion only and hence there is no justification for fixing any upper age limit. It is submitted that there is no dispute in Annexure A-1 and Annexure A-2. The respondents have never stated that appointment of the applicants is illegal as far as the interpretation of the Recruitment Rules, by the respondents are concerned. However, the Tribunal and the High Court, interpreted the Recruitment Rules against the respondents and in favour of the applicants in O.A.No.423/2008 and O.A.No.349/2009. Hence in order to comply with the judgments and to accommodate the seniors who were overlooked on the ground of overage, the respondents are left with no other option but to terminate the applicants in this O.A.
4. The judgment of the Hon'ble High Court mentioned in Annexure A-3 is under challenge before the Hon'ble Supreme Court. Since the respondents have not obtained stay from the Supreme Court in implementing the same, this Tribunal in M.A.No.1234/2012 to revive C.P.C.No.11/2008 in O.A.No.858/2006, M.A.No.1219/2012 to revive C.P.C.No.12/2010 in O.A.No.423/2008, C.P.C.No.139/2012 in O.A.No.699/2009 have directed to implement the orders subject to the outcome of the SLP and hence the respondents are right in issuing Annexure A-3 to implement the orders. It is submitted that all the vacancies under 25% seniority quota set apart for GDS from the year 2004 to 2010 has already been filled up. Appointment to the cadre of Postman from the year 2011 is being made as per the Revised Recruitment Rules. There is no provision for appointment to the cadre of Postman from amongst GDS on the basis of seniority cum fitness in the revised Recruitment Rules. All the vacancies except one vacancy set apart for MTS on the basis of Limited Departmental Competitive Examination for the year 2011 and 2 vacancies set apart for MTS on the basis of Limited Departmental Competitive Examination for the year 2012 has already been filled up. Of the three vacancies for the year 2013, two vacancies set apart for GDS on the basis of Departmental Competitive Examination has already been filled up and one vacancy set apart for MTS on the basis of Limited Departmental Competitive Examination is remaining unfilled. As per the Revised Recruitment Rules this unfilled vacancy is to be filled up from Multi Tasking Staff of the neighbouring division/unit failing which by direct recruitment open market. Hence the contentions of the applicant have no footing in the eyes of law. It is submitted that as the appointing authority of the applicants, 2nd respondent is competent to issue Annexure A-3 termination order. It is further submitted that the details of Postman vacancies that arose from 2004 onwards in Vadakara division and the persons selected are tabulated below :
Sl. Year Total No. of Name of the selected persons Date of Birth Sl.No. No. vacancies in GL 1 2004 1 N.K.Ramachandran 24/11/58 62 2 2005 3 N.K.Balachandran 25/04/59 74 3 2005 T.Govindan 10/04/52 41 4 2005 M.Raghavan 03/08/57 63 5 2006 1 K.Satheesan (applicant) 17/05/59 89 6 2007 3 M.V.Rajan 21/05/60 94 7 2007 P.P.Rajendran (OBC) 05/09/57 99 8 2007 P.M.Padmanabhan (adjusted) 12/11/56 69 9 2008 1 P.Chandran 16/05/60 102 10 2009 2 N.T.Velayudhan (applicant) 01/12/59 98 11 2009 V.N.Gopi (OBC) 30/03/57 101 12 2010 2 K.J.John 31/08/62 112 13 2010 P.Devayani 18/05/61 118
5. It is seen from the table that in 2005 Shri.N.K.Balachandran (Sl.No.74 in the GL) was given appointment for the lone approved vacancy under seniority quota. Subsequently when the O.A filed by Shri.P.M.Padmanabhan was disposed declaring that GDS to Postman is promotion and not direct recruitment, fresh DPC was conducted and GDS without any age limit were selected. Hence Sl.No.3 & 4 (Sl.No.41 and 63 in the GL) were selected. P.M.Padmanabhan could not be selected as there were only 2 vacancies. Subsequently he again filed O.A in which it was declared that the selection of Balachandran is illegal. Accordingly appointment was given to P.M.Padmanabhan on 2.8.2013 to be adjusted against unfilled vacancy of 2007. As he is placed at Sl.No.69 in the gradation list he was placed above Sl.No.74 N.K.Balachandran, in the GL notionally to comply with the Tribunal order. Though the Tribunal has declared the selection of N.K.Balachandran as illegal the respondents have not disturbed him as his juniors were given appointment in 2006 and 2007.
6. The issue under consideration is the continuance of the applicant in the post of Postman pursuant to Annexure A-2 appointment and posting order. In O.A.No.423/2008 there are five applicants as detailed below :
Sl. Name Date of Sl.No. in the Remarks No. Birth GL 1 K.Satheesan 17/05/59 89 Selected against 2006 vacancy 2 N.T.Velayudhan 01/12/59 98 Selected against 2009 vacancy 3 P.Chandran 16/05/60 102 4 K.N.Chandrasekharan 02/04/60 103 5 K.T.Surendran 29/05/60 108
7. The O.A was disposed of by the Tribunal stating that O.A is allowed in line with O.A.No.704/2006. O.A.No.704/2006 is the O.A of Shri.P.M.Padmanabhan which was allowed stating that :
1. GDS to Postman is promotion and not by direct recruitment.
2. No screening committee approval is needed.
3. No age limit needs to be observed.
8. By this time all the vacancies upto 2010 have been filled up as per the existing Recruitment Rules ie. applying 50 years age limit and screening committee approval. The DPC for 2010 vacancies was held on 4.11.2010 as per the old Recruitment Rules. As mentioned in the table above, in order to implement the Tribunal orders notional appointment were given to the 5 applicants in the table. However, among them Sl.No.1 & 2 have been already appointed and hence there is no contempt from them. Contempt has been filed by the applicants at Sl.No.4 and 5 only. There are two unfilled vacancies, one of 2007 and one of 2008 in the division. Against the 2007 vacancy Shri.P.M.Padmanabhan who is the senior most was adjusted. Against the unfilled vacancy of 2008, Shri.P.Chandran (DoB 16.5.1960, Sl.No.GL.102) was appointed notionally with effect from the date of joining of Shri.K.J.John his immediate junior and will be adjusted against 2008 vacancy. For appointing, Sl.No.4 & 5 ie. Shri.K.M.Chandrasekharan and Shri.K.T.Surendran there are no vacancies. But it is seen that Sl.No.12 and 13 in the table above have been appointed overlooking the above applicants in 2010 on the plea that the applicants have crossed 50 years of age. No fault can be attributed to the 2nd respondent since the DPC was held on 4.11.2010, on which date the WPC was pending. The WPC was dismissed by the High Court vide its common order dated 20.12.2011 by which time the candidates at Sl.No.13 & 14 have already been appointed. Now in the light of the Tribunal order and the High Court judgment to the effect that GDS to Postman is promotion and not direct recruitment, it was held that the selection of the candidates at Sl.No.13 & 14 of 1 st table viz. Shri.K.J.John (GL 112) and Smt.P.Devayani (GL 118) were wrong since, as per the Tribunal order, no age limit needs be observed and hence Shri.K.M.Chandrasekharan (GL 103) and Shri.K.T.Surendran (GL 108) who were senior to the selected candidates were given appointment as they were eligible for selection at that time but were overlooked on the plea of over age, which has been categorically turned down by the Tribunal and upheld by High Court.
9. The applicant vide M.A.No.180/00271/2014 produces a copy of the gradation list as on 1.7.2011 issued by the 2 nd respondent as Annexure A-8 and states that one Shri.N.Saranan at Sl.No.76 retired on 30.6.2011 and it shows there is a vacancy existing in the cadre of Postman at Vadakara Division and hence the proposed termination is not at all required. The respondents filed reply to the M.A in which they state that the applicant is not entitled to the said vacancy occurred due to the retirement of Shri.N.Saranan on 30.6.2011 as the vacancy was already added to the year 2012 and notified and filled up along with the vacancies for the year 2012. Respondents has also produced letter dated 12.1.2016 wherein it is stated that Shri.N.T.Velayudhan, applicant in O.A.No.423/2008 who was appointed as Postman with effect from 11.3.2010 against vacancy upto 2009, died while in service on 23.11.2015 after serving 5 years. This vacancy is to be earmarked for the next year, which is governed by revised Recruitment Rules. There is no provision for appointment to the cadre of Postman from amongst GDS on the basis of seniority in the revised Recruitment Rules disentitling the applicant in the present O.A to be adjusted against this vacancy also.
10. The applicant admits that 25% of seniority quota is set apart for GDS under the Recruitment Rules 1989 for promotion to Postman. In Annexure A-7 RTI reply the questions have not been supplied. But it is noted that the quota for GDS and Casual Labour under seniority quota has not been reflected separately and hence the information regarding vacancy of Postman cannot be ascertained clearly. But under reply to information No.4 in Annexure A-7 the number of posts surrendered is shown as nil.
11. The termination of the applicant was in order to accommodate her seniors who were denied appointment in order of seniority on account of being over aged, a contention which is now over ruled by Tribunal orders. The order of the Tribunal attained finality and hence has to be implemented. There are no vacancies in the relevant year to accommodate the applicant. The new Recruitment Rules are in force as on 2011. The applicant is also not covered by the retirement vacancy cited by the retirement of one N.Saranan on 30.6.2011. The applicant's request for being considered against the vacancy due to death of Shri.N.T.Velayudhan on 23.11.2015 is also not feasible. The vacancy of Shri.N.T.Velayudhan, applicant in O.A.No.423/2008, of the year 2015 will be earmarked for filling in the recruitment of the next year. This recruitment will be governed by the revised Recruitment Rules and the applicant cannot be adjusted against this vacancy. Hence the applicant's contention to be considered against these two vacancies is also not tenable.
12. The O.A is accordingly dismissed. No costs.
(Dated this the 9th day of March 2016)
(P. GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp