Central Administrative Tribunal - Allahabad
Roshan Ali vs Union Of India Through The Secretary on 1 January, 2010
Open Court CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH, ALLAHABAD ******* Original Application No. 700 of 2005 Allahabad, this the ___ day of ____ 2010 Honble Mr. Justice Shiv Charan Sharma, J.M Honble Mrs. Manjulika Gautam, A.M. Roshan Ali, S/o Sri Mohd. Sharif, R/o Vill. & Post Kalna (Vijai Pur), District-Mirzapur. Applicant By Advocate: Sri Ashish Srivastava Vs. 1. Union of India through the Secretary, Department of Post, Ministry of Post and Telecommunication, Dak Bhawan, New Delhi. 2. Post Master General, Allahabad Region, Allahabad. 3. The Superintendent of Post Offices, Mirzapur. Respondents By Advocate: Sri Himanshu Singh O R D E R
By Honble Mr. Justice Shiv Charan Sharma, J.M. Instant O.A. has been instituted for challenging the order dated 29.04.2005 passed by respondent No. 2 (Annexure No.1). It has been prayed that the order dated 29.04.2005 be quashed. Further prayer has also been made for giving direction to respondents No. 2 and 3 to appoint the applicant as GDS Dak Pal, Kalna Branch Post Office, District Mirzapur in view of the D.G. Circular dated 22.04.1994.
2. Pleadings of the parties may be summarized as follows: -
The applicant has alleged that he is the permanent resident of village and post Kalna (Vijai Pur), Mirzapur and after completion of the education he was looking for a job. From the office of respondent No. 3 as well as from the office of Gram Pradhan, it came in the notice of applicant that the post of GDS BPM has fallen vacant, and advertisement has been issued for recruitment on that post. On receiving this information, the applicant approached the respondent No. 3 in order to obtain the format and also necessary information in this matter. Advertisement is annexure A-2. On the format, applicant submitted an application in the office of respondent No. 3 along with all other relevant documents. That the applicant is a physically handicapped person. A medical certificate of C.M.O., Mirzapur was annexed along with application. Applicants disability is 80%, annexure A-4 is the copy of medical certificate. The applicant requested the respondents that he is a physically handicapped person and in view of the instructions issued by the Director General, Post Office, preference must be given to him. Representations were moved to respondent No. 2 (Annexure A-3 and A-5) in this connection. In view of several letters of the Postal department, certain posts are kept reserved for physically handicapped person for giving appointment as Extra Departmental Agents. That even a single post in a division may be filled up by the department through reserved category of physically handicapped person. On 22.04.1994, the Director General Post has issued a circular letter for providing reservation on certain posts to physically handicapped persons. Annexure A-6 is a copy of the letter dated 23.05.1994. The Chief Post Master General, U.P. Circle, Lucknow for not giving due representation to the physically handicapped persons, issued a letter (annexure A-7). That the applicant filed O.A. No. 81 of 2005 (annexure A-8) is the copy of the Judgment. The O.A. was disposed of with a direction to the respondents to provide appointment to the applicant in view of the Policy and the departmental Rules. In pursuance of the decision of the Tribunal, the respondent No. 2 was required to consider the claim of the applicant in view of the Director Generals letter dated 24.04.1994, and in case applicant is found fit, orders are to be issued by respondent No. 3 for his appointment. But instead of deciding the representation of the applicant, as per direction of the Tribunal, surprisingly on 29.04.2005 the respondent No. 2 cancelled the whole process of selection. The respondent No. 2 has wrongly interpreted the directions of the Postal department to the effect that prior approval is to be obtained of the Post Master General. But, in view of the letter dated 11.11.1988, earlier letter was reviewed and the concerned Divisional Superintendent was empowered for filling up the post fallen vacant due to promotion/retirement dismissal/removal of the person. No reason has been disclosed by respondent No. 2 in canceling the selection process. There was limited scope with respondent No. 2 in accordance with the Judgment of the Tribunal. Only it was to be decided by respondent No. 2 that whether the applicant is entitled for appointment or not. But not a single word has been stated by respondent No. 2 while canceling the selection process. The orders appear to have been passed without application of mind. That as the order has been passed in violation of the earlier letters of the Postal department hence the same is arbitrary, illegal and liable to be set aside.
3. The respondents contested the case, filed reply and denied the allegation of the applicant. It has further been alleged that the application form of the applicant was found incomplete. Regarding income certificate, the applicant enclosed the mothers income certificate, and he has also not disclosed any source of income. That the post was advertised for general category candidate. It is wrong to allege that the post was reserved for physically handicapped person. That the representation of the applicant was decided in accordance with law, allegations made in the O.A. are based on conjectures and guess. The respondents have taken all the relevant letters into consideration before passing the impugned order. There is no substance in the O.A. and the same is liable to be dismissed.
4. After the reply of the respondents, the applicant has also filed the Rejoinder Affidavit and denied the allegations made in the Counter Reply. It has also been reiterated that after the decision of the Tribunal, the respondent No. 2 had no other option except to follow the Judgment of the Tribunal and the representation ought to have been decided whether the applicant falls within the definition of the Policy for handicapped. In view of the D.G. Post letter No. 41-313-87-P-II dated 11.11.1988, the vacancy caused on promotion/retirement will be filled by the division concerned by the Superintendent. There is no provision for obtaining prior approval of Head of Circle.
5. We have heard Sri Ashish Srivastava, Advocate for the applicant and Sri Himanshu Singh, Advocate for the respondents. We have also considered the entire facts and relevant documents present on the file.
6. It is undisputed fact that the Superintendent, Post Offices, Mirzapur-respondent No. 3 advertised one post of G.D.S. BPM in the Branch Post Office, Kalna (Vijai Pur), Mirzapur, annexure A-2 is the relevant advertisement. In pursuance of the advertisement, the applicant submitted an application for appointment on the prescribed format along with the requisite documents. Besides, mentioning the requisite qualification, the applicant also alleged that he is a physically handicapped person and hence preference must be given to him. He annexed the copy of medical certificate given by the C.M.O., Mirzapur regarding physically handicapped. According to the certificate of the C.M.O., the applicant has 80% disability. We shall like to clarify this position that the post was advertised as unreserved. It has been specifically mentioned in annexure A-2 that this post of GDS BPM is an unreserved post, whereas applicant alleged that in view of several letters of the Postal department due weight age must be given to physically handicapped person. It has not been alleged by the applicant that the post was reserved for physically handicapped person. But the main thrust of the learned counsel for the applicant is that as the applicant is a physically handicapped person hence he must get appointment on that ground. But the learned counsel for the applicant conceded that the post was not advertised for physically handicapped person. He emphasized that the preference must be given for appointment to the physically handicapped person and as the applicant is a physically handicapped person hence appointment ought to have been given to him. Undisputedly representations were made by the applicant for giving him appointment against that post. The respondent No. 2 while disposing of the representation of the applicant arrived at the conclusion that irregularities have been committed by the Superintendent-respondent No. 3 in initiating the entire process of selection and also advertised the post and thereby the entire selection process was cancelled. Annexure-1 is the copy of letter of the Post Master General dated 29.04.2005. Prayer has been made for setting aside this order.
7. Prior to deciding other controversies, we considered it just and proper to decide whether the order passed by the Post Master General is in accordance of law. The advertisement as well as selection process was cancelled by the Post Master General on the ground that prior approval of the Post Master General was not obtained by the Superintendent respondent No. 3 prior to advertising the post, and without seeking prior approval of the Post Master General, the post was illegally advertised and accordingly the entire process was cancelled. It has also been mentioned in annexure A-1 that the post was not advertised for physically handicapped person and it was not reserved post for that category. A post was to be filled up by the general category person. It has been vehemently argued by the learned counsel for the applicant that the order passed by the Post Master General, Allahabad dated 29.04.2005 is in violation of earlier letter of the Postal department and this order is liable to be set aside. In this connection, learned counsel for the applicant annexed the relevant letters issued by the Postal department of different dates regarding method of recruitment and in this connection he placed reliance on Rule 29, which provides as follows: -
(29) Filling up of resultant vacancies of ED Agents caused due to promotion/ retirement, etc. The vacancies caused due to promotion of ED employees to Group D/Postmen cadre will not be filled automatically. The resultant posts are to be filled by outsiders with the prior approval of the Head of the Circle.
The above position has been reviewed and it is now clarified that, ED post arising due to promotion, retirement, death, resignation, dismissal, removal or deputation may be filled up by the concerned Divisional Superintendents after satisfying that the post requires to be continued and is not to be abolished due to its becoming surplus due to re-organization. In view of the above provision, earlier it was mandatory for the Superintendent to obtain prior approval of Head of the Circle prior to appointment in Group D. But this position was reviewed by the Postal department and it was made clear that if any post is to be filled up as a result of promotion, retirement, death, resignation, dismissal, removal or deputation, may be filled up by the concerned Divisional Superintendent after satisfying that the post requires to be continued and is not to be abolished due to its becoming surplus due to re-organization. As per annexure A-1, the Post Master General cancelled the entire selection process merely on the ground that prior approval of the Post Master General was not obtained, no other reason has been mentioned for canceling of selection process. Although in the Rule, it has been provided that the Superintendent shall have to be satisfied that the post requires to be continued and is not abolished. It is not the case of the respondents that Superintendent have initiated the process of selection without satisfying that the post requires to be continued and is not abolished due to its becoming surplus, then we have to see only whether the order passed by the Post Master General dated 29.04.2005 is not in accordance with law, due to the reason that prior approval is mandatory and the same has not been obtained by the Superintendent Post Office. This O.A. has been instituted with the prayer that the order dated 29.04.2005 passed by respondent No. 2 (annexure-1) be quashed. We have perused this order and from the perusal of the order it is evident that there is a reference in this letter of the order No. 81/05 dated 10.02.2005. There is also a reference of the order No. 40-45/2003-planning (old reference 40-35/10th Plan/ Planning) dated 17.02.2004. And further it has been averred that vide this order Post Master General has been authorized for taking decision for appointment on this post or not, and further averred that as the Superintendent, Mirzapur has illegally issued an advertisement in violation of this order, hence it is cancelled. Earlier, learned counsel for the applicant relied on the letter dated 11.11.1988 where it has been provided that the Superintendent is fully competent to make appointment in Group B Postman cadre. But by a subsequent order, the Post Master General has been authorized to take all the decisions in the matter, and Sri Himanshu Singh filed the copy of this order dated 17.02.2004 mentioned in the impugned order of the respondents. Hence, the Postal department reviewed the position and ordered The entire issue has been examined in depth. The issue of filling up any vacant post of GDSs will henceforth be decided by the CPMG/PMG keeping in view the justification in terms of work load or due to unavoidable reasons . . . . . . . . . . . . Hence the earlier orders have been reviewed by the order dated 17.02.2004 and now CPMG/PMG has been authorized to take decision in the matter, and in the present case, the respondents counsel stated that the PMG has taken decision in view of this order and CPMG was fully authorized to pass the impugned order (Annexure-1). Learned counsel for the applicant placed reliance on the earlier orders but, vide order dated 17.02.2004 position had been reviewed and P.M.G. has been authorized. There is no other order passed by the Ministry of Communication, contrary to this order dated 17.02.2004 and this is an order passed subsequently and hence this order shall prevail. Under these circumstances, according to the latest order of the Ministry of Communication, IT Department of Posts, P.M.G. authorized to pass the order (annexure-1).
8. Much emphasis has been laid by the learned counsel for the applicant that the applicant is a physically handicapped person, and he has to be appointed on that post and that he fulfilled all the requisite qualifications, required in the advertisement. Medical certificate of the Chief Medical Officer has also been annexed along with the application format. Undisputedly the applicant might be a physically handicapped person, as suffering 80% disability according to the certificate of the Chief Medical Officer. We also have to see whether the post is meant for physically handicapped person. We have specifically clarified above that the post was advertised as unreserved post. It has not been reserved for unreserved category. But even then, the applicant may also be considered for appointment on that post fully knowing the fact that the post is meant for reserved category. We have also perused the relevant letters issued by the Postal department for giving preference or due weight age to a physically handicapped person. But there is lot of difference in making appointment of a physically handicapped person on the ground that it is reserved for physically handicapped person and for giving preference to a physically handicapped person on that ground. If the post is meant for physically handicapped person, then the application forms are to be invited from the persons, who are physically handicapped person and the selection has to be made out of physically handicapped person and that whose case is most hard for giving weight age due to that reason. But if the post is of general category and physically handicapped, as well as other persons submitted the application against that post, then it may be a criteria for the persons making appointments to consider that he is a physically handicapped person. But it is not mandatory for the persons who are making appointment to consider only the physically handicapped person. The argument of learned counsel for the applicant is that as he is physically handicapped person hence he required to be appointed against that post. It is evident from the annexure A-2, the document filed by the applicant, that the post was advertised for general category candidate. A person of general category, may also be a physically handicapped, and may submit the application and due weight-age may be given to him in selection. Under these circumstances, only due weight age is to be given to the person concerned for giving preference to a physically handicapped person. Otherwise also there can be no question reserving a single seat for physically handicapped person because it is settled position of law that if a single post is advertised then it cannot be reserved for specific category. Learned counsel for the applicant is trying to blow hot and cold in same breath. He is arguing that the post was not reserved for physically handicapped person but at the same time he is seeking direction to the respondents to give appointment to the applicant on the post of GDS BPM as he is a physically handicapped person. When the post is not earmarked for a physically handicapped person, then no direction can be given to the respondents for giving appointment to the applicant merely due to this reason. It is a different matter that weight age is being given in selection to a physically handicapped person. But we do not consider it essential to give specific direction for making appointment of the applicant merely on the ground that he is a physically handicapped person.
9. For the reasons mentioned above, we are of the opinion that annexure-1 (impugned order) was passed by the respondents perfectly in accordance with the latest order of Ministry of Communication and IT Department of Posts. Earlier position was reviewed, now it is the P.M.G. who is authorized to take appropriate decision in this matter. The O.A. is devoid of any merit and the same is liable to be dismissed.
10. O.A. is dismissed. No order as to costs.
Member (A) Member (J)
/M.M/
??
??
??
??
10