Orissa High Court
Unknown vs Krishna Kant Pandey Reported In on 3 December, 2020
Author: S.Panda
Bench: S.Panda
W.P.(C) NO.19159 OF 2020
08. 02.12.2020 This matter is taken up through video conferencing.
02. Heard Mr.Parhi, learned Asst. Solicitor General along with
Mr.C.K.Pradhan, learned Central Government Counsel on behalf
of the petitioners and learned counsel for the opposite party.
03. This Writ Petition has been filed by the Central Government
authorities challenging the order dated 06.11.2019 passed by the
Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A.
No.260/394 of 2018 whereby the Tribunal directed the petitioners
to allow the applicant to continue as Accountant, HRO, RMS 'K'
Division, Jharsuguda.
04. The applicant contended before the Tribunal that
consequent upon a regular selection process, he was selected and
appointed as Postal Assistant and after undergoing the prescribed
training, he was posted as such in Deogarh M.D.G. w.e.f.
08.03.2003 under Sambalpur Postal Division. In the year 2007, he
had appeared the Examination for P.O & RMS Accountant and
was qualified in the same. There being no vacancy in the post of
Accountant in Sambalpur Division, he was allowed to work as
Office Assistant in Divisional Office. Since a post of Accountant
was lying vacant in RMS 'K' Division, Jharsuguda, the applicant
made a representation on 16.06.2008 to the Post Master General,
Sambalpur Region requesting his posting against the vacant post
of Accountant at Jharsuguda RMS 'K' Division. Thereafter an order
was issued by the office of the Post Master General, Sambalpur
Region on 22.08.2008 to the effect that the applicant being a
BP
qualified candidate in PO/RMS Accountant is allotted to RMS 'K'
Division for his appointment and posting as Accountant. On the
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basis of the said order, the Superintendent of Post Offices, RMS
'K' Division, Jharsuguda vide order dated 05.09.2008 posted the
applicant as Accountant at Divisional Office RMS 'K' Division,
Jharsuguda with immediate effect. The grievance of the applicant
is that the Post Master General, Sambalpur Region vide letter
dated 19.07.2008 permitted the Superintendent of RMS 'K'
Division to relieve him without any transfer and/or posting which
has been issued under a misconception of fact that the applicant
has been working in RMS 'K' Division on deputation basis.
Accordingly, the applicant filed a representation before the
authorities with a request to allow him to work as Accountant in
RMS 'K' Division permanently. While his representation was
pending consideration, an order of transfer was issued on
23.07.2018 posting him as Accountant, Sambalpur H.O. in
absence of any inter divisional allotment/posting order by the
competent authority. Challenging the said order, the applicant has
approached the Tribunal in the aforesaid Original Application.
05. The petitioners before the Tribunal filed a counter affidavit
contending inter alia that after qualifying in the Accountant
Examination, since there was no vacancy available at Parent
Division/Unit at Sambalpur, on the basis of willingness submitted
by the applicant, he was allotted to RMS 'K' Division, Jharsuguda
in the year 2009. Now there being a vacancy available at
Sambalpur Division, the applicant has been re-allotted to his
parent division i.e. Sambalpur Postal Division and posted as
Accountant as per his request letter dated 20.07.2018. It was
further contended that consequent upon availability of qualified
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Accountant in RMS 'K' Division, Jharsuguda the services of the
applicant were no more required by RMS 'K' Division,
Jharusuguda. It is also stated that nowhere under foreign
service/deputation, an Official is posted out of his parent unit
beyond four years. However, the applicant has been working in
RMS 'K' Division, Jharsuguda for more than 9 ½ years for which it
was necessary to terminate the existing arrangement and to return
him back to his parent Division, as a result of which the applicant
has been posted as Accountant, Sambalpur Head Office as per his
request letter dated 20.07.2018.
06. The Tribunal after taking into consideration the respective
plea of the parties and the materials placed before it as well as the
provision of Rule 276 of P&T Manual recorded a finding that there
is no iota of doubt that the applicant being a qualified candidate in
PO/RMS Accountant Examination was allotted to RMS 'K' Division
against an existing vacancy on the submission of his willingness,
which is in accordance with Rule-276 of P&T Manual. Therefore,
the posting of the applicant as Accountant was neither on
deputation nor on transfer nor even as a temporary measure and
on the contrary consequent upon his qualifying the PO/RMS
Accountant Examination, the applicant was allotted to RMS 'K'
Division. Thus the applicant was appointed as a regular measure.
Accordingly, the Tribunal by the impugned order directed the
petitioners to allow the applicant to continue as Accountant, HR,
RMS 'K' Division, Jharsuguda. The said order is under challenge in
the present Writ Petition.
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07. Mr.Parhi, learned Asst. Solicitor General submitted that
since the order of transfer was issued on administrative exigencies
for smooth office management and there was no violation of the
statutory Rules, the Tribunal should not have interfered with the
same. He further submitted that the provision of Rule 276 of Postal
Manual Volume-IV entails the procedure of selection of Accountant
when there is shortage. However, the Tribunal without considering
the same has passed the impugned order, which need be
interfered with.
08. Learned counsel for the opposite party however, supported
the impugned order and submitted that the Tribunal taking into
consideration the provisions of Rule 276 of Postal Manual Volume-
IV has rightly passed the impugned order and the same need not
be interfered with.
09. For better appreciation Rule 276 of Postal Manual Volume-
IV is quoted hereunder:
"Appointments to the posts of Accountants or Assistant
Accountants in the ordinary time-scale of pay carrying a
special pay will be made from qualified officials who
have passed the Accountant's examination according to
their seniority in the clerical cadre. An unqualified
official, i.e., who has not passed the examination, has
no claim to hold any such post in preference to a
qualified candidate. Appointment to the posts of
PO/RMS Accountant, Asstt. Accountant in the cities of
Calcutta, Bombay, Madras and Delhi (including New
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Delhi) will be made from amongst the eligible officials on
the basis of the city as a whole. The position of the time-
scale assistants in the gradation list maintained for
promotion to L.S.G. in the city units will also determine
the order of their promotion to the posts of Accountants
and Asstt. Accountants in those units.
NOTE:- In cases where a qualified Accountant is
required in a particular office, and none is available in
the Division concerned, the proper course is to offer the
post to a qualified official available in any other Division
in the Circle. For this purpose selection may be made of
the senior most among qualified Accountants who
volunteer for such posting. If there are no volunteers
available, a qualified official from a nearby Division
should be selected subject to the discretion of the Head
of the Circle. In case no qualified official is available
even in other Divisions, a senior official having the long
experience in the Accounts Branch of Post Office or
R.M.S. and whom the Head of the unit considers
suitable should be appointed to the post. Such an
unqualified official should be replaced by another
suitable official on completion of four years' continuous
service, or earlier if a qualified official becomes
available. The reverted unqualified official should not be
appointed again in similar circumstances until at least a
period equivalent to the period which he has already
worked has elapsed."
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Under the Note to the aforesaid Rule it has been stipulated
that in cases where a qualified Accountant is required in a
particular office, and none is available in the Division concerned,
the proper course is to offer the post to a qualified official available
in any other Division in the Circle. Since there was a vacancy in
the RMS 'K' Division, Jharsuguda, the applicant was asked to give
his willingness for his appointment in the said Division.
Accordingly, the applicant submitted his willingness on 17.06.2008
for his appointment in the said Division. Considering the
application of the applicant, the opposite parties vide letter dated
22.08.2008 intimated the applicant that he being a qualified
candidate in PO/RMS Accountant is appointed and posted as an
Accountant in R.M.S 'K' Division, Jharsuguda as per Rule 276 of P
& T Manual. After going through the impugned order, we are of
the opinion that the Tribunal taking into consideration the aforesaid
provision of Rule 276 of Postal Manual and the materials placed
before it, has rightly passed the impugned order. There is no error
apparent on the face of the record so as to warrant interference by
this Court. The Apex Court in the case of M/s Pepsico India
Holding Pvt. Ltd., Vs. Krishna Kant Pandey reported in
(2015) 4 SCC 270 held that where there is error apparent on
the face of the record, the same can be interfered with by a Writ
Court in exercise of its jurisdiction under Article 227 of the
Constitution of India.
10. In view of the discussions made hereinabove, since the
Tribunal has passed a reasoned order and there is no error
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apparent on the face of the record, we are not inclined to interfere
with the same in exercise of the jurisdiction under Article 227 of the
Constitution of India.
The Writ Petition is accordingly dismissed. The interim order
dated 09.11.2020 passed by this Court in I.A. No.8953 of 2020
stands vacated.
11. The parties may utilize the soft copy of this order available in
the High Court's website or print thereof at par with the certified
copy in the manner prescribed, vide Court's notice No.4587, dated
25.03.2020.
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S.Panda, J.
........................ S.K.Panigrahi, J.