Central Administrative Tribunal - Ernakulam
W/O. vs Venugopal, on 5 December, 2016
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.1177/2013
Monday, this the 5th day of December, 2016
CORAM:
HON'BLE Mr.JUSTICE N.K.BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER
1. C.Y.Ouseph,
S/o.Yohannan,
GDSMP, Angamaly South PO,
Angamaly - 683 573, Aluva Division.
Residing at Chakkalckal House,
Azhakam PO, Aluva Division - 683 577.
2. K.M.Aliyar,
S/o.Makkar,
GDSMD Oonnukal P.O.,
Aluva Division - 686 693.
Residing at Kallinikkatt House,
Oonnukal PO, Aluva Division - 686 693.
3. C.A.Rajan,
S/o.Anjathy,
GDSMD Nedungapra PO,
Aluva Division - 683 545.
Residing at Chennothumaly House, Panichayam,
Nedungapra PO, Aluva Division - 683 545.
4. T.R.Droupathy,
W/o.Purushothaman,
GDSMP, Chengamanad, Aluva Division, Aluva.
Residing at Thayyil House,
Cheriyapallanthuruth, N Paravoor - 683 513.
5. N.C.Thankachan,
S/o.Chothi,
GDSMD, Pothanikkad PO,
Kothamangalam, Aluva.
Residing at Kollanmaval House,
Pothanikkad - 686 671.
6. T.S.Joy,
S/o.Souru,
GDSMD Edavoor, Aluva Division.
Residing at Thelakkaden House,
Edavoor PO, Angamaly - 683 544.
7. M.G.Binil,
S/o.Gopalakrishnan,
GDSMC Edayar PO, Koothattukulam.
Residing at Muttathil House,
Koothattukulam - 686 662.
8. P.B.Siyad,
S/o.Beeravunni,
GDSMD Desom PO, Aluva Division.
Residing at Panikkaru Veettil,
Thaikkattukara PO, Aluva - 683 106.
9. K.T.Praveen Kumar,
S/o.K.V.Thankappan,
GDSMD Chowara PO, Aluva Division.
Residing at Kaiprapady House,
Sreemoolanagaram PO - 683 580.
10. M.D.Dhanniakumari,
W/o.Baiju K.G.,
GDSMP Keezhillam PO, Aluva Division.
Residing at Kunnath House, Rayamangalam PO,
Kuruppumpady, Perumbavoor PO - 683 545.
11. K.R.Sangeetha,
W/o.Lalji Das,
GDSMD Alangad PO, Aluva Division.
Residing at Chandrakantham, Kuttipuzha,
Kunnukara PO - 683 578.
12. PM Dileep,
S/o.Madhavan Nair,
GDSMD Paduavapuram, Aluva Division.
Residing at Madathattu House, Poikkattussery,
Chengamanad PO, Aluva - 683 578.
13. Vandana C Nair,
W/o.VS Venugopal,
GDSMD Binanipuram PO, Aluva Division.
Residing at Veliyath Theertham House,
Muppathadom PO, Aluva - 683 110.
14. K.S.Sarath Lal, S/o.Saseendran,
GDSMD Kodanad, Aluva Division.
Residing at Kallikad House,
Kodanad PO - 683 544.
15. Selestian Das, S/o.A.K.Das,
GDS MD, Kunnukara PO, Aluva Division.
Residing at Kaithackal House,
Kuttipuzha, Kunnukara PO - 683 578. . . . Applicants
(By Advocate Mr.Shafik M.A.)
Versus
1. Union of India
represented by its Secretary to Government of India,
Department of Posts, Ministry of Communications,
New Delhi - 110 001.
2. The Chief Postmaster General,
Department of Posts, Kerala Circle,
Trivandrum - 695 033.
3. The Senior Superintendent of Post Offices,
Aluva Division, Aluva - 680 121. . . . Respondents
(By Advocate Mr.Thomas Mathew Nellimoottil,Sr.PCGC)
This application having been heard on 11 th November 2016, the
Tribunal on 5th December 2016 delivered the following :
ORDER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER Applicants are aggrieved by the refusal of the respondents to notify the actual vacancies and the refusal of the respondents to appoint them as Postmen in the available vacancies in the neighbouring division. The applicants are GDS working since 1988 onwards. They have competed in the examination for promotion as Postmen conducted on 19.5.2013 from Aluva Division. 16 candidates qualified from Aluva Division. Only one vacancy was notified and that too in the MTS quota. No one was appointed in the 1 notified vacancy. In the year 2011 also out of the 19 vacancies only 11 was notified and only 7 were appointed. As per the new Recruitment Rules, if vacancies are available in neighbouring divisions, surplus qualified candidates can be appointed. The respondents have appointed only 2 candidates, one of which has not been included in the list of qualified candidates.
2. The applicants have submitted representations for appointment in other divisions. Applicants contend that in spite of vacancies being available the respondents are not appointing the applicants. The 2 nd respondent has notified the Limited Departmental Competitive Examination for promotion to the posts of Postman as per a Notification No.Rectt./12- 2/2012 dated 9.4.2013. Only one vacancy in the Departmental quota was notified for Aluva Division. Appointment to the postman cadre is now governed by the Postman Recruitment Rules dated 16.12.2010 as amended vide Rules dated 28.6.2012.
3. In the year 2012 there are 11 vacancies of Postman in Aluva Division which arose due to retirement, death etc. Out of which only one was notified for filling up as per Annexure A-1 notification. As per reply received in response to a RTI query, from the 3 rd respondent office, 8 unreserved, 1 OBC, 1 ST and 1 SC vacancy was available. 16 officials ie., 7 UR, 6 OBC and 3 SC candidates including the applicants have passed the examination conducted on 19.5.2013. One among the 16 who is shown to have passed in Annexure A-6 was offered a posting in the neighbouring division of Alappuzha as per an order No.BB52/postman/2012 dated 13.8.2013. The neighbouring divisions where the vacancies were notified have not been able to find qualified candidates and in most of the places the vacancies are kept unfilled. In the neighbouring division, Alappuzha there are 5 vacancies, in Irinjalakuda Division there are 6 vacancies, in Trichur there are 13 vacancies, in Ernakulam Division 11 vacancies.
4. The department has been abolishing the vacancies in Group D and Postmen, for quite a long time and was not filling up the same stating that the vacancies fall under direct recruitment quota. This Tribunal has held that the vacancies do not fall in the direct recruitment quota, and is to be filled up by GDS, which was confirmed by the Hon'ble High Court of Kerala, the respondents have started to fill up the same. The appointment as Postmen and erstwhile Group D, presently MTS have been considered by the Department as Direct Recruitment.
5. In Annexure A-3 Rules brought in 2010, the Department has specifically stated that appointment of GDS will be by direct recruitment. In Bhoop Vs. Matadin Bhardwaj (1991) 2 SCC 128 and in Nirmal Chandra Bhattacharjee Vs. Union of India (1991) Supp. (2) SCC 363, the Apex Court had taken the stand that the mistake or delay on the part of the department should not be permitted to recoil on the party. In the present case, the applicants are made to suffer solely on account of the illegal abolition of posts right from 2003 onwards.
6. Relief sought by the applicants is to direct the respondents to appoint them as Postmen on the basis of their results in the examination conducted on 19.5.2013 either in the vacancies of Aluva Division or in the neighbouring division with effect from the date on which the other candidates who qualified in the same examination are appointed.
7. The respondent in the reply statement submit that the applicants are the GDS working in various Post Offices under Aluva Postal Division. They appeared the Limited Departmental Competitive Examination to the cadre of Postman/Mail Guard held on 19.5.2013. The said examination was conducted in all Postal Divisions of Kerala Circle according to the revised pattern and syllabus, to fill up the vacancies of the year 2012, even if there is no vacancy in a particular division. According to the new Recruitment Rules :
(i) 50% recruitment is made on the basis of LDCE by promotion from among MTS (Multi Tasking Staff) of the recruiting division with three years regular service in the grade including service put in, if any, against an erstwhile Group D post on regular basis as on 1 st January of the year to which the vacancies belong, failing which, from amongst MTS of the neighbouring division/unit on the basis of the said examination, failing which, by direct recruitment from 'open market'.
(ii) Another 50% by direct recruitment on the basis of competitive examination limited to GDS of the recruiting division who have worked for atleast five years in that capacity as on the 1 st day of January of the year to which the vacancies belong, failing which, from amongst GDS of the neighbouring division/unit on the basis of the said examination, failing which, by direct recruitment from 'open market'.
8. So adequate provision has been made for recruitment from GDS cadre before opening the vacancies to direct recruitment from open market. With respect to Aluva Postal Division as per above Recruitment Rules there was only one postman vacancy for the year 2012 under promotion quota (promotion from among the Multi Tasking Staff) and there was no vacancy under direct recruitment quota. The applicants appeared in the LDCE to the cadre of Postman/Mail Guard held on 19.5.2013, not for the departmental vacancy of Aluva Division, but for the unfilled direct recruitment vacancies in neighbouring divisions. In Aluva Postal Division, only one vacancy was notified which was the carried forward vacancy of the year 2011 and notified for the year 2012 under promotion quota from among the Multi Tasking Staff and there was no vacancy under Direct Recruitment quota. The vacancy notified for the year 2012 under MTS quota in Aluva Division was not filled up and remained unfilled as there was no qualified MTS in Aluva Division/neighbouring divisions.
9. The willingness of the surplus qualified candidates in Aluva Division was called for by the 3 rd respondent for considering them for the unfilled vacancies in the neighbouring divisions under direct recruitment quota limited to GDS. As such the applicants submitted willingness for being considered against the unfilled vacancies under direct recruitment quota limited to GDS in the neighbouring divisions. As per marks obtained in the LDCE held on 19.5.2013 and the choice of posting stations submitted by the candidates, the regional screening committee recommended the selection of 3 surplus qualified candidates and accordingly the vacancies under direct recruitment quota in Alappuzha and Ernakulam divisions were filled up. One of the surplus qualified candidates of Alappuzha division was thus appointed as Postman against the direct recruitment vacancy in Alappuzha division vide Annexure A-8. At this stage, the applicants represented to the 2nd respondent through the 3rd respondent to consider them for the unfilled vacancies under departmental quota in the neighbouring divisions. As per the new Recruitment Rules, the GDS can be appointed as Postman under direct recruitment quota.
10. The respondent contests the averment of applicants that they are not filling up the vacancies of Postmen and MTS in Aluva Division. The vacancies were notified and appointments made for the vacancies earmarked for all the years up to 2013 as per the extant rules. The surplus qualified candidates can be considered only towards the unfilled vacancies in the neighbouring divisions. Appointment can be made only for the notified vacancies. All qualified candidates will not get appointment and neither was such an assurance given to any of the candidates either in writing or orally. The promotional prospect of GDS are to the cadre of Postman and MTS. As per new Recruitment Rules, in the case of promotion to Postman Cadre, 50% of the total vacancy is allotted to GDS by direct recruitment and in the case of promotion to MTS cadre. 75% of the total vacancies are allotted to GDS by direct recruitment. In the LDCE held on 19.5.2013, 16 candidates were qualified. Based on the marks obtained in the exam held on 19.5.2013 and the choice of posting stations submitted by the surplus candidates, Regional Screening Committee recommended the posting of Shri.Dipu.P.M., GDSMC, Marika of Aluva Division as Postman towards the unfilled vacancy in Alappuzha division under direct recruitment quota. GDS are eligible for selection to the Postman cadre under direct recruitment quota. Departmental quotas of vacancies are not allotted to GDS and inter- operability of the quotas has been in various judgments of the Apex Court been not allowed. Only the vacancies under direct recruitment quota reserved for handicapped candidates remained unfilled. As per data available in Annexure A-9 most of the unfilled vacancies available in neighbouring divisions are under departmental quota. The unfilled departmental quota can be filled only by direct recruitment from open market if no surplus eligible MTS candidates are available in neighbouring divisions. The unfilled vacancies available in direct recruitment quota in Alappuzha and Ernakulam divisions for which the GDS are entitled, were filled up based on the recommendations of the Screening Committee according to the marks obtained in the LDCE held on 19.5.2013 and choice of posting stations submitted by the surplus qualified candidates in neighbouring divisions. One of the surplus qualified candidates of applicants' division was thus appointed as Postman against the direct recruitment vacancy in Alappuzha division vide Annexure A-8.
11. In the additional reply statement based on facts and records respondent submits that during the period from 2000 to 2008 Screening Committee was in existence and only 1/3 rd of the direct recruitment vacancies which arose in a year were ordered to be filled up. As per the optimization scheme of Government of India applicable uniformly to all departments and services of the Government of India throughout the country including Kerala Circle even though it was ordered to treat the unfilled vacancies of Postman for the years 2005 to 2008 as deemed abolished, such posts had not been actually identified. 11 such vacant posts were there during the years from 2005 to 2008 to be abolished. The actual vacancies arose for the year 2012 due to retirement, promotion, resignation, death etc. were thus adjusted towards the 11 vacant posts to be abolished and the only one vacancy which was carried forward in MTS vacancy by promotion for the year 2011 was notified for the year 2012 under promotion quota vide Annexure A-1 LDCE examination notice. The vacancies for each year are arrived at by considering the number of posts which fell vacant during the year and found justified for filling up and approved by the competent authority with respect to recruitment rules in force. The applicants cannot deny the powers of the Executive Authority to implement the recruitment process as per the notified recruitment rules and instructions on the subject. During the year 2012 actual vacancy remained unfilled were arrived at by considering the actual number of posts fallen vacant by retirement, resignation, death, promotion etc. during the year. The details of vacancies so arrived in 2012 are 7 retirements, 1 resignation and 3 promotions. The above 11 vacancies were identified for reduction and kept unfilled as per the directions of the competent authority in the light of the Screening Committee directions. The one vacancy which was notified under departmental quota (UR) was the vacancy which was originally unfilled during the year 2011 for want of eligible candidates under 25% promotion quota of MTS on seniority basis. The difference of sanctioned strength and working strength obtained by the applicants under RTI Act was with reference to the actual number of posts lying vacant under various categories of recruitment, of which GDS to MTS is one such category. 12 Heard the counsel for the applicant and respondent and perused the written submissions made. When the OA came up before the Tribunal on 29.9.2016, after hearing for some time, this Tribunal had adjourned the case directing the respondents to file a statement as to number of vacancies of Postman that were abolished in the neighbouring division and also to furnish the details as to whether these posts have been restored pursuant to the directions of the Hon'ble High Court on non-abolition of promotion quota posts. In compliance with the direction an additional reply statement was filed. The High Court has held that clearance from the Screening Committee is not required to fill up the vacancies under promotion quota only on the basis of its decision that filling up of the post of the MTS from GDS is only promotion and not direct recruitment. In the present OA the applicants who are GDS had competed under the direct recruitment quota for the post of Postman and not for promotion quota or the MTS Quota. Hence the Screening Committee cut is applicable in the instant case.
13. In this regard respondent submits that the Hon'ble Supreme Court in Civil Appeal No.90/2015 (Y.Najithamol & Ors. Vs. Soumya S.D. & Ors.) upheld that selection of Extra Departmental Agents or Gramin Dak Sevaks to the post of Postman under Column 11 (2) (ii) of the Recruitment Rules is only by way of Direct Recruitment and not by way of promotion. Hence resotration of already abolished post would not arise.
14. The Tribunal on 3.8.2016 had also called for the following information :
(a) Details of vacancies announced, vacancies filled by direct recruitment, filled by surplus qualified candidates from neighbouring division and vacancies remaining unfilled in respect of Limited Departmental Competitive Examination to the cadre of Postman/Mail Guard for the year 2012 held on 19.5.2013 produced as Exhibit R-4.
(b) Details of vacancies announced, vacancies filled by direct recruitment, filled by surplus qualified candidates from neighbouring division and vacancies remaining unfilled in respect of Limited Departmental Competitive Examination to the cadre of Postman/Mail Guard for the year 2013 held on 6.10.2013 produced as Exhibit R-5 in order to assess whether there were any vacancies in recruiting or neighbouring divisions to adjust the applicants.
15. From the data produced as cited above, it is noted that 48 vacancies were announced in the LDCE held on 19.5.2013 and contested by applicants. All vacancies have been filled including three vacancies filled by invoking the clause on surplus qualified candidates from neighbouring divisions. The two vacancies remaining unfilled are reserved for physically handicapped persons, to which quota the applicants are not eligible.
16. In view of above detailed statistics produced, we find that there is no merit in the OA as there are no vacancies regular or surplus or in neighbouring divisions against which applicants can be adjusted. Accordingly, the OA is dismissed. No costs.
(Dated this the 5th day of December 2016)
(P.GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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