Central Administrative Tribunal - Ernakulam
Anitha Sai vs D/O Post on 21 December, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00192/2020
Wednesday, this the 21st day of December 2022
CORAM:
HON'BLE Mr.JUSTICE SUNIL THOMAS, JUDICIAL MEMBER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
Anitha Sasi,
W/o.Sarath K Damodaran,
Aged 38 years,
Gramin Dak Sevak Branch Post Master,
Anjilithanam, Kaviyoor, Thiruvalla.
Residing at Damasree, Anjilithanam P.O.,
Kaviyoor - 689 582. ...Applicant
(By Advocate Mr.M.R.Hariraj)
versus
1. Union of India
represented by Secretary to Government of India,
Department of Posts, Ministry of Communications,
New Delhi - 110 001.
2. Chief Postmaster General,
Kerala Circle, Thiruvananthapuram - 33.
3. Superintendent of Post Offices,
Thiruvalla Division, Thiruvalla - 689 101.
4. Assistant Superintendent of Post Offices,
Thiruvalla Sub Division, Thiruvalla Division,
Thiruvalla - 689 101.
5. Bindumol Chandrabose,
Gramin Dak Sevak Mail Deliverer,
Ramankary SO, Thiruvalla - 689 895.
6. Muralikrishna G Bhaskar,
Gramin Dak Sevak, Kurichimuttam,
Tiruvalla - 689 514. ...Respondents
(By Advocate Mr.Thomas Mathew Nellimoottil, Sr.PC [R1-4])
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This application having been heard on 6 th December 2022, the
Tribunal on 21st December 2022 delivered the following :
ORDER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER The applicant in this O.A commenced service as a Gramin Dak Sevak on 25.01.2010. She had been appointed after a regular recruitment process to a regular vacancy and has been in service since that date. The 5 th respondent in the O.A, Smt.Bindumol Chandrabose, was also regularly appointed as Gramin Dak Sevak (GDS) but only on 10.07.2010. The applicant states that prior to this regular appointment, Smt.Bindumol Chandrabose had been engaged only on a provisional basis against a 'put off' vacancy from 03.11.2009. It is the contention of the applicant that the 'put off' vacancy is not a regular vacancy and consequently that the 5 th respondent had not been appointed to the post after a regular selection process or on regular appointment. Later, it was only when a regular vacancy arose in the post that the 5 th respondent was appointed. This appointment was done with prospective effect from 10.07.2010. The 5 th respondent had also not made any representation or questioned the same in any way. It is further submitted that after the regular appointment of the 5 th respondent, the Gradation (Seniority) List of Gramin Dak Sevaks of the Thiruvalla Division was published. This list indicates the date of entry into service of the applicant and the 5 th respondent as 25.01.2010 and 10.07.2010 respectively. The said seniority list of the Gramin Dak Sevaks for the Thiruvalla Division as on 01.07.2014 has been produced by the applicant at Annexure A-2. In this list, the applicant is shown as the -3- Gramin Dak Sevak Branch Post Master (GDS BPM) at Anjilithanam, the community being Unreserved (UR) and with date of entry into service as 25.01.2010 at the Sl.No.207. On the other hand, the 5 th respondent, Smt.Bindumol Chandrabose, is shown as the Gramin Dak Sevak Mail Deliverer (GDS MD), Ramankary with community UR and date of entry into service as 10.07.2010, at Sl.No.229. Further the 6 th respondent, Shri.Muralikrishna G Bhaskar, is shown as the GDS MD, Kurichimuttam, belonging to SC community with date of entry as 04.08.2010, at Sl.No.232. It is submitted by the applicant that even though an opportunity was given to everybody who appeared in this seniority list to submit representations against the same, the 5th respondent had not made any representation.
2. After this, vide the notification at Annexure A-3 dated 05.08.2019 the 2nd respondent, CPMG Kerala issued a notice for the conduct of a Limited Competitive Exam from among qualified Gramin Dak Sevaks for recruitment to the cadre of Postal Assistants/Sorting Assistants (PAs'/SAs') for the vacancy years 2015-16, 2016-17, 2017-18, 2018 (01.04.2018 to 31.12.2018) and 2019 (01.01.2019 to 31.12.2019) in one go. A copy of the notification is produced at Annexure A-3. The notification indicates various dates for submission of applications as well as for the date of examination. At the paragraph 3(iii) of the notification relating to Service Eligibility, it is inidcated as follows "must have put in a minimum service of five years on the first day of April of the year to which the vacancy(ies) pertain to". Further, it is stated that the notification has been issued on the basis of the Department of Posts (Postal Assistant and Sorting Assistant -4- Group 'C' Non Gazetted) Recruitment Rules, 2015 issued on 21.05.2015 and produced at Annexure A-4. The applicant states that the competitive examination for recruitment to the cadre of PAs'/SAs' requires the candidates to appear in three papers. However it is the marks secured in Paper-I only that will be counted for finalising the rank list of qualified candidates, along with consideration regarding the seniority as Gramin Dak Sevak. Paper-II and Paper-III are only qualifying components of the exam and Paper-III is a Data Entry Skill Test. At Annexure A-5 is the circular of the CPMG, Kerala, 2nd respondent dated 28.01.2020 relating to the qualified candidates eligible to attend the Data Entry Skill Test on 09.02.2020, for qualified GDS candidates. At Annexure A-5(2) is the list of names of qualified/non qualified candidates Division Wise with their marks in Paper-I and Paper-II. It is mentioned in the letter at Annexure A-5 that only those candidates who stood qualified in Paper-I and Paper-II will be eligible to attend the Data Entry Skill Test on 09.02.2020. In the results produced at Annexure A-5(2) for the Thiruvalla Division, the applicant appears as OBC community (perhaps an error) at Sl.No.5 having secured 50 marks in Paper-I (qualified). Further, she is also shown qualified in Paper-II and that she is eligible for the DEST. The 5th respondent has been shown with marks in Paper-I of 77 (qualified) against OBC community (again perhaps by error), qualified in Paper-II and eligible for the DEST at Sl.No.10. The 6 th respondent has been shown with marks of 77 (qualified) belonging to SC community, qualified in Paper-II and eligible for the DEST at Sl.No.11. As per the applicant it is evident from the Annexure A-5(2) results that the candidate entitled to be selected to a vacancy in the respective vacancy year -5- is subject to qualifying in the skill test. The Paper-I marks are the only competitive part of the examination. It is submitted by her that as per these results she would be selected for the year 2015-16 based on her merit and her length of service. She contends that the 5 th respondent cannot be considered against the year 2015-16, as she was in service only from 10.07.2010 and, hence, she would have not completed five years of service on 01.04.2015.
3. However, soon after the publication of the results on 28.01.2020, the respondents issued the impugned Annexure A-7 letter on 01.02.2020, ie., just three days after the publication of the results at Annexure A-5. Vide the letter/order at Annexure A-7 it was indicated that in accordance with the concerned letters/O.Ms of the Department of Posts, ".......the provisional period of Smt.Bindumol Chandrabose, Dak Sevak, Ramankary SO is hereby regularized with effect from 03.11.2009". The applicant contends that Annexure A-7 is an order which does not have any backing in law and that such retrospective regularization at this distance of time affecting the seniority of so many others without giving notice ought not to have been granted. In any case, the Data Entry Skill Test was also conducted and the applicant as well as 5th respondent and 6th respondent qualified in the same. After this, initially, the respondents selected her for appointment to the post of Postal Assistant against the vacancy year 2015-16 as indicated in the relevant portion of the final results of the selection announced on 13.04.2020 vide Annexure A-8. As per the final results of the examination, the applicant was shown under the part marked for Thiruvalla Division at -6- Sl.No.5 for the vacancy year 2015-16 again showing her community as OBC with marks in Paper-I as 50. The 5 th respondent appears just below her at Sl.No.6 shown against the vacancy for 2016-17 again with category shown as OBC, with marks as 77. It is to be noted that both the candidates, though shown in the OBC category, have remarks entered in the remark columns as 'selected against UR vacancy'. The 6 th respondent does not at all appear in this list shown at Annexure A-8(3).
4. The applicant then submits that she was expecting appointment as a PA/SA in the Thiruvalla Division on the basis of the above final results. As there were no further developments in this regard, she submitted a representation as at Annexure A-9 dated 21.04.2020. She as well as other candidates from Thiruvalla Division, were then informed by the Annexure A-10 impugned letter that ".....the competent authority has directed to keep the results in respect of Thiruvalla Division in abeyance until further orders from Circle Office". No reasons were given as to why the results were kept in abeyance. However, the applicant submits that she came to know that the matter was being delayed at the instance of the 5 th respondent who was trying to get herself selected against the vacancy of the year 2015-16 on the basis of an application to get retrospective regularization of the provisional period. Anticipating that there could be some issues which may go against her, the applicant submitted another representation dated 28.04.2020 produced at Annexure A-11. In this application she stated that any orders or decisions regularizing the provisional period of Smt.Bindumol Chandrabose with effect from 03.11.2009 would not be in order. This was -7- because Smt.Bindumol Chandrabose had not submitted any representation against the Gradation List for 2014 in time and was claiming the same after a belated period of about five years. It was also submitted that none of the GDSs who would be affected in the seniority when the respondents finally took the decision on the seniority by the subsequent modification dated 01.02.2020 (produced at Annexure A-7) were informed or given a chance to make any representation. The modification was done by the Assistant Superintendent of Post Offices (ASPO) without taking into account the Gradation List of the GDS which had been already published as on 01.07.2014 (produced at Annexure A-2). Further, the modification in the Gradation List was made on 01.02.2020 after the examination was conducted on 15.09.2019 and the list of selected candidates was circulated on 28.01.2020. The marks of each candidates were also announced in this Memo at Annexure A-5 dated 28.01.2020. Hence, it is submitted that the modification of the seniority in the midst of the exam process ie., after the declaration of the written examination marks of selected candidates who would go for DEST is against the principles of natural justice. Therefore, if any modification is made on the final list (as was announced by Annexure A-8 dated 13.04.2020 in this O.A) on the ground of the impugned letter of the ASPO at Annexure A-7, it would create a severe damage on her prospects for promotion.
5. However, without considering all the above aspects it is stated that the respondents issued the impugned Annexure A-1 order on 30.04.2020, which modified the Annexure A-8 results announced on -8- 13.04.2020. In the Annexure A-1 declaration of results it is mentioned that the results of the examination in respect of Thiruvalla Division announced by the letter of 13.04.2020 (Annexure A-8) stands cancelled and the revised results are hereby declared. In the revised results the 5 th respondent appears at Sl.No.3 for the year 2015-16 with the category OBC and the remarks 'selected against UR vacancy'. The 6 th respondent appears at Sl.No.6, shown against the SC category, against the vacancy year 2016-17 again with the remark 'selected against UR vacancy'. The applicant's name does not appear at all in the list for any of the different years. Based on the Annexure A-1 declaration of result further follow up orders regarding verification of documents were issued as per the impugned letter Annexure A-12. The grounds for relief that the applicant is relying on the O.A are that the appointment of the 5 th respondent was initially on a provisional basis and there is no rule enabling regularization of the period during which she was continuing on a provisional basis later as regular service. It is her contention that such retrospective regularization is not possible. The 5th respondent was initially appointed against a temporary vacancy in which she continued on a provisional basis. Regular appointment it is contended can be made only against a regular vacancy. The appointment of the 5th respondent would have been pursuant to a notification which called for candidates for only a provisional appointment. An appointment made pursuant to such a notification cannot be regularized retrospectively.
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6. It is contended further that a GDS who is in provisional service does not fall within the definition of the 'Gramin Dak Sevak' under the GDS (C&E) Rules. She cannot claim any benefit flowing from these statutory rules as a GDS. The 5th respondent had been appointed on a provisional basis on 03.11.2009 and had never questioned the correctness of the initial engagement being on a provisional basis. The regular appointment had been given only on 10.07.2010 and at the time of getting the regular appointment, she had not questioned about it not being retrospectively applied from 03.11.2009. Even in 2014 when the seniority list was published with a notice for representations she had not made any complaints. Thus by long delay and laches she has forfeited her claim for a regular appointment from 03.11.2009. Hence the 4 th respondent, ASPO, should not have considered the 5th respondent's claim for being retrospectively regularized by including the provisional period. There is no power given to the said officer for doing so. Further, the 4 th respondent, ASPO is also restrained by the principle of the 'sit back' theory from treating the period of provisional service as regular and altering a settled seniority position. The seniority of many others have also been affected by the impugned action at Annexure A-7. However, no notice was given to any person before taking the action which is violative of natural justice. No reasons have been disclosed in the impugned orders.
7. It is also submitted that selection to the posts of PA/SA under the Annexure A-3 notification was in the nature of a direct recruitment. The required service eligibility qualification under the same has to be satisifed -10- on the first day of the April of the year in which the vacancy arose for which the person is being considered. The 5 th respondent was not qualified for being considered for selection for the year 2015-16 as on the relevant date of the notification. Subsequent events cannot be taken into consideration for treating the 5 th respondent as qualified for 2015-16. The selection should be considered only in accordance with the facts and circumstances on the crucial date. On the last date of receipt of applications (ie. 19.08.2019), the 5th respondent had not yet been declared to be qualified for the year 2015-16. She remained in fact unqualified for the said year even until the final results of the competitive examination were announced. It was only after publication of results that the changes were made. It is impermissible to alter the seniority in service qualification of the candidates and thereby change the end result of the selection. This, in other words, amounts to tinkering with the selection process after the results are announced, which has both legal and factual malafides. There is no jurisdiction to review the results and rework the selection process with the 2nd respondent once the selection process is over. It is essentially a power of review that is exercised in such circumstances and this power cannot be presumed, until it is conferred by a statute. A selecting authority is rendered functus officio once the selection process is over and it is not permissble to change the selection results. Even otherwise the question of whether a person appointed provisionally can be regularised effectively from the date of occupation of the post on a provisional basis was considered in an order issued by the Department of Posts dated 06.02.2014. It is submitted that the same can only operate -11- prospectively and cannot be used to unsettle the settled position after nearly two decades. On the basis of all these contentions, the applicant seeks the following relief :
(1) To call for the records leading to Annexure A-1, Annexure A-7, Annexure A-10 and Annexure A-12 and quash the same, to the extend they relate to the applicant and the Respondents 5 and 6.
(2) To declare that the 5 th respondent is not eligible to be considered for appointment as Postal Assistant/Sorting Assistant for the year 2015-16 and direct the respondents to make selection and appointment to the cadre of Postal Assistant/Sorting Assistant in Tiruvalla Division based on the merit of candidates as reflected in Annexure A-8. (3) Grant such other reliefs as may be prayed for and the Court may deem fit to grant and (4) To grant costs of this Original Application.
8. The respondents filed a detailed reply statement in the O.A. At the outset they state that Smt.Anitha Sasi, who is the applicant in the O.A., had been engaged as a GDS BPM with effect from 25.01.2010 and is presently working as the BPM, Anjilithanam. The notification for LDCE for the cadre of PA/SA from GDS for the vacancies of 2015-16, 2016-17, 2017-18, 2018 was issued on 05.08.2019 and was circulated in Thiruvalla Division on 07.08.2019. The respondents state that the vacancy position in Thiruvalla Division for 2015-16 is 2 OBC and 3 UR which makes a total of five and for 2016-17 there is only 1 UR vacancy making a total of one. Similarly, in 2017-18 and 2018 there are only 1 UR vacancy for each year. The factual issues which have been brought out by the applicant in the O.A have not been questioned by the respondents. They allow that the applicant -12- had been engaged as GDS BPM with effect from 25.01.2010 and was thus eligible to appear in the LDCE for recruitment to the cadre of Postal Assistant for the vacancies of the years 2015-16, 2016-17, 2017-18 and 2018. The 5th respondent, Smt.Bindumol Chandrabose, had also submitted an application for appearing in the exam. She was permitted to appear in the exam initially only for the vacancy years 2016-17, 2017-18 and 2018 considering that her date of engagement was 10.07.2010. However, it is submitted that the Directorate of Posts vide its letter dated 06.02.2014 had issued directions to regularize the service of provisional GDS with effect from the date of engagement if the incumbent had exhausted all departmental channels, judicial appeals and petitions etc.
9. A copy of the letter dated 06.02.2014 has been produced at Annexure R-1. Since the same letter at Annexure R-1 has been also relied upon by the applicant in the O.A., it is therefore instructive to bring it out in full :
"No.17-11/2014-GDS Government of India, Ministry of Communications & IT, Department of Posts, (GDS Section) Dak Bhawan, Sansad Marg, New Delhi - 110 001.
Dated 06.02.2014 To Chief Postmaster General, Kerala Circle, Thiruvananthapuram - 695 033.-13-
Subject : Regularization of provisional engaged GDS against GDS posts in cases where the arrangement was made against those removed or dismissed from employment.
I am directed to refer your office letter No.Rectt/11- 2/Genl/2012 dated 18th Jul. 2013 on the subject cited above and to convey that such provisionally engaged GDS may be regularized against the GDS post effective from the date of occupation of the post on provisional basis subject to fulfillment of the following conditions :
(a) That the vacancy was caused by the dismissal/removal of the regularly engaged GDS;
(b) That such GDS was provisionally engaged following due process of selection prescribed for regular engagement as prescribed under this Directorate letters No.41-286/87-PE II dated 14.12.1987 & No.19-4/97-ED&TRG dated 19.08.1998 and have worked continuously without any break;
(c) That the regularly engaged GDS who had been removed/dismissed from engagement, has exhausted all departmental channels, judicial appeals and petition, etc., and it is finally decided not to take the earlier regularly engaged GDS back into service in conformity with Para 2 of the format of the provisional engagement order prescribed under this Directorate letter No.43-4/77-Pen dated 18.05.1979.
2. On regularization, such GDS may be allowed all consequential benefits ie., seniority, eligibility to appear in the departmental examination, ex-gratia gratuity service discharge benefits scheme etc., effective from the date of regularization. After such regularization, the incumbents so made regular may be permitted to make their contribution towards SDBS from the month in which they are so regularized."
Sd/-
Assistant Director General"
10. The respondents state that as per the above letter on regularization, such GDSs' may be allowed all consequential benefits such as seniority, eligibility to appear in Departmental Exam effective from the date of regularization etc. Accordingly, Smt.Bindumol Chandrabose, the 5 th respondent had submitted a representation on 15.07.2019 to regularize her -14- engagement from her date of provisional engagement to the Superintendent of Post Offices, Thiruvalla Division and also to the 2 nd respondent, CPMG through proper channel on 06.08.2019. The respondents state that Smt.Bindumol Chandrabose had been provisionally selected as GDS MD with effect from 03.11.2009 against the 'put off' vacancy of Shri.K.Krishnankutty, after observing prescribed selection formalities. When the regular incumbent Shri.K.Krishnankutty was removed from engagement with effect from 10.07.2010 after disciplinary proceedings, her services were regularized as per extant guidelines on regularization of provisional engagement with effect from 10.07.2010 ie., from the date of removal of the incumbent vide the Memo dated 11.06.2012 of Assistant Superintendent of Post Offices, Thiruvalla Sub Division. However, it was later in 2014 (06.02.2014) that the Annexure R-1 letter brought out above was issued, and therefore, the engagement of the 5 th respondent had to be regularised with effect from her date of initial engagement ie., with effect from 03.11.2009. Her representation was forwarded to the ASPO, Thiruvalla Sub Division (4th respondent), being the recruiting authority, for necessary action in accordance with the letter at Annexure R-1. It is submitted by the respondents that the said representation had been received by them from the 5th respondent as early as 15.07.2019, which was even before the announcement of the notification for the LDCE for recruitment for PA/SA from GDS and the holding of exam, which was on 15.09.2019. In fact by the time the exam was held the representation had been already forwarded by the 3rd respondent (Superintendent of Post Offices, Thiruvalla) through his letter dated 22.07.2019. It is allowed that when the results were -15- initially declared as per Annexure A-8, as brought out by the applicant in her O.A, the applicant had been shown at Sl.No.5 against the OBC category but selected against a UR vacancy for 2015-16. (In passing it is to be noted that the respondents in their reply are showing the applicant as well as the 5th respondent as appearing under the UR category and not the OBC category, though the documents indicate them under the OBC category). The respondents do not deny the fact that the applicant had been initially shown as selected as per the result declared on 30.04.2020 as per Annexure A-8 for the UR vacancy of 2015-16 and that the 5 th respondent had been shown against the UR vacancy of 2016-17.
11. However, the respondents submit that it also was a fact that meanwhile, the 4th respondent, ASPO, Thiruvalla on 01.02.2020 (Annexure A-7) had regularised the service of the 5 th respondent, Smt.Bindumol Chandrabose with effect from 03.11.2009. The 3 rd respondent, Superintendent of Post Offices, Thiruvalla also intimated the fact of this regularization to the 2nd respondent, CPMG, Kerala with a request to consider the name of the 5th respondent, Smt.Bindumol Chandrabose for the vacancy year 2015-16 vide his letter dated 04.02.2020 produced by the respondents at Annexure R-3. The respondents state that in view of the fact that the period of provisional engagement in GDS cadre prior to regular engagement in respect of Smt.Bindumol Chandrabose who had been selected under the UR vacancy for the year 2016-17 had been regularised with effect from 03.11.2009 by her appointing authority ie., the Assistant Superintendent of Post Offices, Thiruvalla on 01.02.2020, she automatically -16- became eligible to appear for all the vacancies starting from 2015-16. Thus, it was decided that a Departmental Review Screening Committee be held to review the already published merit list of Thiruvalla Postal Division Annexure A-8 in respect of all the said vacancy years. In this connection, it is also pointed out that the Annexure A-8 notification dated 13.04.2020 which basically declared the results initially, had a specific provision at paragraph 6 that "in case if it is found subsequently that any of the selected candidates was not eligible to take up the examination under existing rules/instructions on the subject or for any reasons or in case any mistake is found with regard to announcement of result of any candidate for any reason whatsoever his/her name will be deleted from the list of successful candidates, as the case may be."
12. It is submitted that the Departmental Review Screening Committee was then convened on 29.04.2020. The minutes of the Committee have been brought out at Annexure R-4. From the minutes it is revealed that the Review Departmental Screening Committee observed at paragraph 3(ii) that ".......Earlier Committee had selected Smt.Bindumol Chandrabose against the vacancy of the year 2016-17 taking into account her date of GDS engagement as 10.07.2010. Consequent on the regularization of GDS engagement of Smt.Bindumol Chandrabose with effect from 03.11.2009, the candidate is eligible for consideration of the vacancy for the 2015-16. On rectifying this, Smt.Bindumol Chandrabose had to be selected against the UR vacancy for the year 2015-16 in place of Shri.Satheesh N.S. Further, Shri.Satheesh N.S had to be accommodated in place of Smt.Anitha Sasi, and -17- the candidate (Smt.Anitha Sasi) has to be removed from the select list." Further at paragraph 3 (iii) it was recorded that Shri.Muralikrishna G Bhaskar who had secured 77 marks in the Paper-I had to be selected in place of Smt.Bindumol Chandrabose against the UR vacancy for the year 2016-17. Accordingly, the Committee has revised the merit list of Thiruvalla Division which has been published at Annexure-I of the Minutes. This shows the revised merit list of Thiruvalla Division as detailed below :
Sl. Name of the candidate Roll Selected Marks in Vacancy No. No. against Paper-I year 1 Kannan.P.Nair 210301 UR-1 83 2015-16 2 Sanju S.K. 210303 OBC-1 80 3 Bindumol Chandrabose 210310 UR-2 77 4 Satheesh N.S. 210304 UR-3 77 5 Shyam Kumar S 210302 OBC-2 76 6 Muralikrishna G Bhaskar 210311 UR-1 77 2016-17 7 Remya G Nair 210316 UR-1 87 2017-18 8 Anju Ramesh 210321 UR-1 81 2018 It is submitted that from the above it can be seen that when Annexure a-8 was published the applicant was erroneously shown against the vacancy of 2015-16. She had to be removed and the eligible meritorious candidate Smt.Bindumol Chandrabose who had secured 77 marks was selected against the UR vacancy of the year 2015-16. The applicant who had secured only 50 marks and who had been erroneously included was thus removed from the selection list.-18-
13. When the O.A first came up before this Tribunal on 08.05.2020, an interim order was passed directing the respondents to impart training to the applicant along with other candidates. In compliance to the orders of the Tribunal, the respondents state that the applicant was directed to undergo the inhouse pre-induction training for Postal Assistants at Thiruvalla Head Office with other candidates during the period 12.05.2020 to 15.05.2020. Drawing from the above factual narration of the sequence of events as also as per the Government instructions, especially the letter at Annexure R-1, the respondents would like to establish that whatever they have done was in line both with the circular at Annexure R-1 as well as the general practice which is followed in such cases for the revision of the seniority of their employees. They submit that the averment of the applicant that the 5 th respondent was wrongly granted retrospective regularization of service as GDS due to the reason that the written examination results had been already declared has to be looked in regard to the fact that the request for regularization had been submitted by the 5th respondent to the 3rd respondent, well before the notification of the examination itself ie., on 15.07.2019. The 5th respondent had been regularised with effect from 03.11.2009, vide the Assistant Superintendent of Post Offices, Thiruvalla's letter dated 11.06.2012, under the circumstances which have been brought out earlier by relying on the Directorate letter dated 06.02.2014. It was only consequent on the regularization of the engagement with effect from 03.11.2009 that the 5th respondent was eligible to be considered for the vacancies for the year 2015-16.
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14. The applicant submitted a rejoinder, wherein, she averred that there is no such rule to regularize the period of provisional service as regular service. The 5th respondent had been appointed only on a provisional basis on 03.11.2009 in Ramankary P.O and she had been given regular appointment only on 10.07.2010. She had made no complaints when the Gradation List was published in 2014 though she was supposed to make a grievance at that time. When the Gradation List has been finalized, considering any claim later for retrospectively regularizing the provisional period is illegal. Further, once the select list is published, as was done by Annexure A-8, it is not possible to alter the seniority and service qualification of the candidate and change the end result of the selection just on the representation of the 5th respondent. Further during arguments, in addition to the above, learned counsel for the applicant, Shri.M.R.Hariraj, drew renewed attention to the provisions of the Annexure R-1 circular dated 06.02.2014, which has been brought out in full earlier. He contended that the subject of the said circular was regarding the regularization of provisionally engaged GDS against GDS posts in cases where the arrangement was made against those removed or dismissed from employment. The circular conveys that only such provisionally engaged GDS may be regularised against the GDS posts effective from the date of occupation of the post on provisional basis subject to certain conditions. It is his contention that the circular covers only the cases when a vacancy arises after a GDS who was in position is removed or dismissed from employment, when a provisional appointment or engagement had been made. Whatever arrangement is made before that like when someone is -20- engaged against a vacancy caused by someone else being placed on put off duty cannot be considered as covered by the provisions of the circular. Thus, a period when an arrangement is made when someone is allowed to work against the post because the person is on put off duty (akin to suspension) and the former incumbent has not yet been dismissed or removed from service cannot be counted or taken into account for regularization. In other words, it is only when the post becomes vacant as a result of the dismissal or removal from employment that the right for counting a provisional employment or engagement made arises. Hence, the circular at Annexure R-1 dated 06.02.2014 has allowed the counting of service on a provisional basis only from the date a vacancy arises due to the removal or dismissal from employment of the previous incumbent. It does not cover the time when someone may have been working against the post in the vacancy caused by the put off duty (suspension) of the incumbent. Thus, in this matter, the employment of Smt.Bindumol Chandrabose can only be counted from 10.07.2010 when Shri.K.Krishnankutty, the regular incumbent was finally removed from engagement. Before that point, the period that she may have been working from 03.11.2009 onwards against the 'put off' duty vacancy of Shri.K.Krishnankutty cannot be considered. A plain reading of the circular at Annexure R-1 would result in this conclusion.
15. The above interpretation/contention is stoutly contested by the respondents in the reply statement as well as during oral hearing Shri.Thomas Mathew Nellimoottil, Sr. Panel Counsel. The counter is that -21- the Annexure R-1 circular has issued instructions that the provisionally engaged GDS, against posts of GDS where an arrangement was made against those removed or dismissd from employment, can be regularised with effect from the date of occupation of the post on provisional basis subject to certain conditions such as (a) vacancy was caused by the dismissal/removal of regularly engaged GDS (b) GDS was provisionally engaged following due process of selection prescribed for regular engagement (c) the regularly engaged GDS who had been removed/dismissed from engagement has exhausted all departmental remedies including judicial appeals etc. and it is decided not to take the earlier regularly engaged GDS back in service. Hence, there is no need for any misinterpretation that the period to be considered would exclude the period when the provisional engagement was against a put off (suspension) vacancy. The fact of the matter is that the provisionally engaged GDS has been working in the post immediately after recruitment though prescribed procedure in a continuous manner right from his date of engagement. It is submitted that as Smt.Bindumol Chandrabose had satisfied all these conditions in the circular, the ASPO, Thiruvalla had vide its memo at Annexure A-7 dated 01.02.2020, regularised her provisional engagement which was with effect from 03.11.2009. Thus, the respondents have regularised the service only in accordance with the circulars prevailing on the subject and nothing else.
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16. Further, the respondents contend that Annexure A-2 is to be taken as Gradation/Seniority List of GDS as on 01.07.2014 in Thiruvalla Division during the year 2014. However, the 5 th respondent had been engaged provisionally on 03.11.2009 after due notification and after observing all appointment formalities. She had been continuously working in the department well before the engagement of the applicant. She was regularised initially with effect from 10.07.2010 after removal of the previous incumbent as per the extant instructions on regularization prevailing at that time. The revised orders for regularization as evidenced by Annexure R-1 had came on 06.02.2014. The 5 th respondent had acccepted the seniority list published in 2014 by her not submitting any representation at that time, even though she was eligible for regularization with effect from 03.11.2009 as per these orders. However, this initial acceptance of the Seniority List 2014 as on 01.07.2014 by the applicant alone should not deprive the 5 th respondent for receiving her eligible legitimate service benefits on a later date. There is no standing order for the appointing authority to deny a genuine request respondent purely on the ground of delay. It is submitted that delay on the part of the 5 th respondent in submitting her representations cannot, ipso facto, deprive her from her eligible seniority from 03.11.2009. It is also further submitted that Annexure R-1 has clearly allowed that the entire period of provisional engagement should be counted for the purposes of seniority. Hence, the 5 th respondent was eligible in all respects for regularization from 03.11.2009 onwards as per Annexure R-1 and had a justified claim for being considered for recruitment as PA for the year 2015-16. It was only the delay on the -23- part of the respondents in allowing the regularization on her representations which created the opportunity for the applicant to enter into the selection list for Postal Assistant for the year 2015-16, inadvertently. Explaining the reasons for this delay, the respondents have submitted that, being the appointing authority, the 4th respondent, ASPO, Thiruvalla Division had to trace out the relevant files and only after she was satisfied about the eligibility of the 5th respondent for regularization with effect from her initial date of engagement that the orders had been issued. Hence, all the action taken by the 4th respondent is in order. The applicant was less meritorious in the written examination but is trying to use the administrative delay taken by the respondents in declaring the retrospective seniority in favour of the 5th respondent in her favour and trying to get into the select list. The respondents submit that in fact if the representation of the 5 th respondent had not been considered, the same would have resulted in the denial of justice for consideration for her for the year 2015-16. It is to be noted that the 5th respondent had submitted a request to the 2 nd respondent to consider her against the vacancy of 2015-16. This was taken up by the 3 rd respondent with the 2nd respondent vide the letter at Annexure R-5 dated 16.04.2020, just after the Annexure A-8 results had been declared. This only shows that the respondents had to actively consider the case of the 5 th respondent because by then her service was already regularised with effect from 03.11.2009. Thus, she had made a request for being considered for the vacany year 2015-16 which was taken up vide Annexure R-5. In effect the respondents seem to have accepted that there was delay on their part as well in dealing with the representations of the applicant.
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17. It is submitted by the respondents that the Tribunal in order dated 02.08.2013 in O.A.No.1/2013 filed by Smt.Haritha.R.P.Chandran had already held that in an administrative exigency to keep a post occupied in cases where the original incumbent may be reinstated on finalization of disciplinary/judicial proceedings ie., where a vacancy is not declared as a clear vacancy and the appointment of the applicant is made provisional and if later the original incumbent is reinstated, the applicant has to be offered alternate employment and is also entitled to service benefits. In other words, this means that, even before the circular of 2014 at Annexure R-1 had been published, the Tribunal, while dealing with cases such as in O.A.No.1/2013, had held that in case an incumbent of the post who was on put off duty is later reinstated the regularly selected provisional appointee in that post has to be offered alternative appointment and is entitled for service benefits. This order was also later upheld by the Hon'ble Kerala High Court. What this therefore establishes is that even earlier itself there had been an understanding that the provisional service by a regularly selected GDS against any put off vacancy, will have to be considered for purpose of service benefits from the date of engagement. Considering all such reasons the 5th respondent had been found eligible for all the five yearly vacancies from 2015-16 onwards. She was eligible for selection to the cadre of Postal Assistant in Thiruvalla Division for 2015-16 itself as she had secured 77 marks and was, therefore, more meritorious than the applicant who had secured only 50 marks. Further, in relation to a point made in the grounds by the applicant, the respondents have clarified that the recruitment formalities are one and the same for provisional and regular engagement. -25-
18. The procedure for regularization of the provisional period has been brought out by the Annexure R-1 circular, which has the force of a rule being issued by the Director General of Posts. The finalization of a disciplinary proceeding or appeals/judicial proceedings may take years before fruition and, therefore, the provisional period will have to be regularised with retrospective effect. The argument of the applicant that such provisional period cannot be regularised retrospectively is without any basis. The 5th respondent had been selected as GDS MD, Ramankari on a provisional basis based on a notification for the provisional post. It is submitted that the department has given similar regularisations in many cases and that it is the practice being followed after the issuance of Annexure R-1 circular. Further, Annexure R-1 is not in effect prospectively and no time limit is prescribed. At the time when the seniority list of 2014 was circulated, the 5th respondent may not have been aware of the provisions of regularization issued by the circular at Annexure R-1. That, however, will not forfeit her claim for ever and it cannot be denied on the ground of delay. It is also pertinent that the applicant submitted her request well before the notification of examination and it was only due to administrative delay which had occurred in declaring the eligible regularization that the applicant got a chance to enter the list of selected Postal Assistants for the year 2015-16 inadvertently. Further, the respondents have also stated that the provisional service of the 5 th respondent which was regularised based on the directions at Annexure R-1 will be incorporated appropriately in the next seniority list to be published in 2024. It is also to be noted that the length of service of the applicant has -26- not been altered. She has only not found place in the select list of 2015-16 being less meritorious than the selected candidates. It is submitted that the Respondent Nos.3 & 4 have only tried to serve natural justice by considering the request as there is no ground for rejecting the same.
19. We have gone through the relevant documents and heard the oral submissions. As far as the matter relating to interpretation of the Annexure R-1 circular is concerned, we observe that the contention being drawn by the learned counsel for the applicant is not correct. The circular at Annexure R-1 dated 06.04.2014 was in the context of treatment of the service of provisionally engaged GDS against regular GDS posts in cases where an arrangement was made and where the previous incumbents have been removed or dismissed from employment. It is to be noted that the removal or dismissal from employment of a GDS would usually be after a period of put off duty/(which is suspension from service in case of a regular civil service). In such cases, disciplinary proceedings against the incumbent GDS has to be conducted under the relevant discipline and appeal rules pertaining to the GDS. It may also be that there are concurrent judicial proceeding. During this period, in order to ensure that the postal services in the particular area where the GDS has been placed under put off duty do not get disrupted, the provisional engagement after following due process concerned does take place. Hence, there will be a period of put off duty of an incumbent GDS where the provisional engagement of a GDS in his place is done. This provisional engagement as has been pointed out by the respondents, could be for a fairly long period of time as there may be -27- criminal cases involving judicial proceeding besides disciplinary proceedings. All this require a certain amount of time before coming to a finalization. The question then is what happens to the new incumbent when the old incumbent is either reinstated or alternatively removed or dismissed. Hence, there are separate instructions, which has been backed also by decisions in cases like the case of Haritha.R.P.Chandran (supra), referred to earlier, where the person who had been provisionally working in the incumbent's vacancy has, therefore, to be adjusted against some other vacancies. In other words, the service of the person, who is provisionally taken in place of the person on put off duty, is allowed to be continued elsewhere even in case the previous incumbent is reinstated. In this case, the person did not come back as he was finally removed from service. Hence, the 5th respondent has been working continuously right from the concerned put off duty date, which was 03.11.2009 in the same post, albeit provisionally. The circular at Annexure R-1 covers the treatment of service/regularisation of service of such persons. It is clearly provided that the provisional period of service has to be counted for regularisation. The first paragraph itself says that the GDS may be regularised against the post effective from the date of occupation of the post on provisional basis. To extrapolate from the way the circular is worded that it can only be from the point on the date when the post becomes vacant when the person is removed or dismissed is overstretched because once the post become vacant due to removal or dismissal there is no need for anybody to be engaged anyway on a provisional basis anymore. The post can be advertised for regular recruitment if it is lying vacant. This was not the case in this particular -28- matter as the incumbent 5th respondent just continued her service. We cannot therefore accept the argument of the learned counsel for the applicant that Annexure R-1 circular does not apply in favour of the 5 th respondent. The respondents have correctly applied the provisions of the Annexure R-1 circular in giving the benefits to the 5 th respondent.
20. In addition to the above, learned counsel for the applicant has also brought to our notice a series of judgments as follows :
(1) Sajeeve N.J vs. Union of India & Ors. in WPC No.36499/2007 of the Kerala High Court ie., (2009) 4 KLT (SN 59) 67 (FB).
(2) Surendra Kumar & Ors. vs. Greater Noida Industrial Development Authority & Ors. (2015) 14 SCC 382. (3) R.K.Mobisana Singh vs. KH. Temba Singh & Ors. (2008) 1 SCC 747.
(4) Registrar General of India & Anr. vs. V.Thippa Setty & Ors. (1998) 8 SCC 690.
(5) Union of India & Ors. vs. Sheela Rani (2007) 15 SCC
230.
It is submitted that these cases taken together establish how the 'sit back' theory and delay caused due to laches have to operate in similar cases. In Sajeeve.N.J (supra) the Hon'ble Kerala High Court in paragraph 21 has dealt with the theory of 'sit back'. It has been clarified that this has been applied almost uniformly in the context of a contention of delay and laches on the part of any person who makes an attempt to prosecute a claim, which, if accepted, would result in a situation where interse positions which have been settled over the years will have to be revised. It has been observed by -29- the Hon'ble Supreme Court as has been mentioned in the paragraph, that though Courts should not be anxious to throw out petitions on the ground of delay on the part of the petitioner to approach the Court, justice will have to be administered in accordance with law and principles of equity, justice and good conscience. The Court has observed that it would be unjust to deprive the respondents in the said case the rights which have accrued to them. Each person ought to be entitled to 'sit back' and consider that the appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years. Similarly, in Surendra Kumar & Ors. (supra) it has been laid down that date of a contractual appointment cannot be the date of regularization, nor can a date of purported regularization be the date of regularization. In that case, it was found that the appellants were appointed to the post of Assistant Manager (Civil) only pursuant to a policy decision of the respondents for regularization of contractual employees, and thus, the appellants cannot seek for regularization with retrospective effect from the date when the advertisement was issued, because at that time the regularization policy was not in vogue. The policy of regularization was intended to give the benefit only from the date of appointment and the Court cannot read anything else in the policy decision which is plain and unambiguous. This judgment, therefore, did not allow the appellants to turn around and claim regularization with retrospective effect.
21. Further, in R.K.Mobisana Singh (supra) it was held that no retrospective effect can be given to the order of regularization passed in favour of the promotees as, in absence of seniority rules operating in the -30- field, the State was required to evolve a policy and for its own reason did not do so. It is also held that seniority is not a fundamental right but a civil right. Such a civil right being used to give retrospective regularization of adhoc promotees which has affected relative seniority of direct recruits has been depricated especially when no opportunity of representation has been given to the adversely affected persons. In Registrar General of India & Anr. (supra) it has been held that what is relevant is that regularization should be prospective and not retrospective as chances of upsetting the seniority cannot be overlooked. The Tribunal must take care to see that when they pass orders of regularization from retrospective dates those who are likely to be affected on account of that order are before the Court and that unwittingly the careers are not adversely affected. Ordinarily, therefore, regularization must be prospective. In Sheela Rani (supra) also it was held that regularization with retrospective effect from the date of initial employment is not sustainable.
22. Drawing from the above, the contention of the learned counsel for the applicant is that there is settled seniority which is evidenced in this case by the fact that there was a seniority list published in 2014 which was not objected to by the applicant. This cannot be disturbed at this stage especially after the declaration of results for recruitment into the cadre of PA/SA was completed. Once the selection process was started allowing any retrospective seniority, in effect, is therefore changing the rules once the game has begun and is not in the interest of natural justice. The principles of the theory of 'sit back' are strongly relevant as well. Even considering -31- what the respondents contend, ie., that the seniority had been fixed on 01.07.2014 as per the rules prevailing at that time, what stopped the applicant from making another representation later in 2014, if she felt that the Annexure R-1 circular was in her favour. In any case, learned counsel submits that the delay which has been caused, even for argument's sake from 2014 onwards by the applicant has given her no right at this length of time to change a settled seniority as per the theory of 'sit back'. Further, drawing from the set of cases above, seniority cannot be given to her from a retrospective date because it will upset the entire settled seniority which is there.
23. We have closely examined this issue. On balance, it is not seen by us that these cases are relevant in the matter of the applicant and the private respondents herein. All of them were appointed as Gramin Dak Sevaks which is not a civil post under the Union but is a post which only gives a right, after working for some years, to be considered for direct recruitment into the cadre of Postman/Postal Assistant etc. It is not that there is a strong right for promotion as can be interpreted in normal civil service cases. Even though a seniority list was published in 2014 it does not mean that was the final end of the matter. It is to be noted no action had been taken pursuant to that seniority list previously upto this point. In addition, the clarification at Annexure R-1 completely allows retrospective application as it specifically does allow the period of provisional engagement to be taken into account while considering the fixation of seniority of the provisionally engaged employee. Hence, by its nature Annexure R-1 allows retrospective -32- application and there have been sufficient and more judgments that once clear orders or rules govern the field, this cannot be ignored on the ground that there has been delay or any laches because of the same. In fact in the matter of K.P.Sudhakaran & Anr. vs. State of Kerala (2006) 2 KLT 817 (SC) the Hon'ble Apex Court had found that once a statutory rule is made, without providing any exceptions, it is not possible to carve out exceptions to such rule by judicial interpretation. Nor can an exception be allowed from application of a clear and specific rule on the ground of hardship or similar reasons. It is clear therefore that once an error has been detected, as has been done in the case in the matter of fixing the seniority, it does not matter if a (fairly) short length of time has passed, if a rule or an instruction specifically states that the seniority has to be fixed in a particular way. The circular at Annexure R-1 which has the force of executive instruction from the DG Post has clearly allowed that the period of provisional employment has to be counted for the purpose of determining seniority and the respondent herein did not have any other option but to implement it.
24. The circular at Annexure R-1 has been mistakenly interpreted as we have found by the applicant to be in his favour while it is actually not so. Hence, overall we do not see that the cases which have been relied upon by the applicant giving any vested or other right to her for reconsideration. The orders of this Tribunal in O.A.No.1/2013 of Haritha.R.P.Chandran vs. Senior Superintendent of Post Offices, Thiruvananthapuram, which was referred earlier are also relevant in our consideration herein. This Tribunal had allowed the applicant therein to appear at the selection examination in -33- view of her having worked continuously in the post of GDS for five years in one way or the other after she was selected. This matter was taken up before the Hon'ble High Court in O.P.(CAT) No.1205/2013 and the order of the Tribunal was upheld. The judgment of the Hon'ble High Court dated 08.04.2013 noted that, though the department had at that time taken the stand that the respondent ie., Smt.Haritha.R.P.Chandran, had been regularized as GDS only in 2010 and, therefore, did not have five years of service and was ineligible to compete in terms of the notification for recruitment from GDSs, the Tribunal had held that the notification does not contemplate that the GDS should be in regular service or that only a regularised GDS with five years of regularised service would contest in the competition. The Hon'ble High Court had noted that "the concept of regular service is just not available in the category of GDS. Not only that, being persons outside the regular civil service, the very concept of regular service of a GDS, for whatever it is worth, is not of such quality, as could be equated to regular service in regular employment. Working as a GDS in that capacity is not the same as being regularly appointed and having regular service in any particular post. All that is required is that a person should have been working in the capacity as a GDS and discharge of such duties should have been for a period of five years. It is not something equated to regular service as contemplated in the Central Civil Service Rules. Under such circumstances, we do not find any irratonality, illegality, impropriety or jurisdictional error in the Tribunal having held that any type of service that a GDS had rendered, has to be counted to find whether a particular incumbent had worked for at least five years in that -34- capacity. Having found so, we do not find any ground to interfere with the impugned order at the instance of the establishment. The Original Petition fails."
25. It is clear from the above order that the Hon'ble High Court has found that service has to be counted from the date of initial engagement. Whatever one may call the engagement, whether it is regular or otherwise, the period from the start of such engagement has to be counted. We have in this Tribunal been allowing the counting of service in respect of GDSs from back dates, even taking into account that some of the incumbents had been working as Substitute GDSs in some cases or they may have actually entered into service by mistake as for example if their marks were not properly calculated. In a recent judgment of this Tribunal in O.A.No.619/2020 dated 31.10.2022, we had considered the case of the applicant therein who had been in fact working as a Postman after starting as a GDS MD and who later had been terminated by the authorities as he was mistakenly appointed. The order of termination had been immediately stayed by the Tribunal and the incumbent was in our final order allowed to count his service right from the date he had been working as GDS including the benefit of the service period granted due to the interim order of the Tribunal. Thus, it is clear that a consistent stand is being taken by the Tribunal that service of the GDS has to be counted right from the date of his working/engagement in whatever capacity in the particular post of GDS.
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26. Hence, considering all these aspects together we are of the considered opinion that the respondents took the correct decision in the case of the 5 th and 6th respondent and it, therefore, does not call for any intereference by the Tribunal. In passing, it should be mentioned when this matter first came up on 08.05.2020 before this Tribunal, besides allowing the applicant to be imparted training along with the other selected candidates, this Tribunal had also ordered issue of notices to 5th and 6th respondents. As per the records, the notices have been served to both the 5th and 6th respondents. However, they have not apparently felt it necessary to either employ counsel or appear before the Tribunal. These orders are being passed though no statements have been filed on their behalf in this regard. We dismiss the O.A. No order as to costs.
(Dated this the 21st day of December 2022)
K.V.EAPEN JUSTICE SUNIL THOMAS
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp
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List of Annexures in O.A.No.180/00192/2020
1. Annexure A-1 - A copy of the order No.Rectt/10-6/2019 dated 30.04.2020 issued for the second respondent.
2. Annexure A-2 - A copy of the relevant portion of the Gradation List of the Gramin Dak Sevaks of Thiruvalla Division published in 2014.
3. Annexure A-3 - A copy of the notice No.Rectt/10-6/2019 datd 05.08.2019 issued by the second respondent.
4. Annexure A-4 - A copy of the relevant portion of the Department of Posts, Postal Assistants and Sorting Assistants Group C Non Gazetted Recruitment Rules, 2015.
5. Annexure A-5 - A copy of the letter No.Rectt/10-6/2019 dated 28.01.2020.
6. Annexure A-6 - A copy of the letter No.17-08/2018/SPB-I dated 10.05.2019.
7. Annexure A-7 - A copy of the order No.GDSMD/Ramankary/2020 dated 01.02.2020 issued by the 4th respondent.
8. Annexure A-8 - A copy of the relevant portion of the final results of the selection announced by Rectt/10-6/2019 dated 13.04.2020.
9. Annexure A-9 - A copy of the representation dated 21.04.2020.
10. Annexure A-10 - A copy of the letter No.BB/GDS to PA Exam dated 29.04.2020.
11. Annexure A-11 - A copy of the representation dated 28.04.2020.
12. Annexure A-12 - A copy of the order No.BB/Rectt/2020 dated 01.05.2020 of the third respondent.
13. Annexure R-1 - A copy of the Directorate vide letter No.17-11/2014- DS dated 06.02.2014.
14. Annexure R-2 - A copy of the representation of Smt.Bindumol Chandrabose addressed to SPOs, Tiruvalla dated 15.07.2019 and the English translation of the same.
15. Annexure R-3 - A copy of the letter No.BB/GDS to PA Exam dated 04.02.2020.
16. Annexure R-4 - A copy of the minutes of the Review DSC convened on 29.04.2020.
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17. Annexure R-5 - A copy of the letter No.BB/GDS to PA Exam dated 16.04.2020.
18. Annexure R-6 - A copy of the letter No.BB/RECTT/2020 dated 11.05.2020.
19. Annexure R-7 - A copy of the letter No.BB/RECTT/2020 dated 15.05.2020.
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