Mangesh R Patil vs M/O Communications on 10 June, 2024

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Central Administrative Tribunal - Mumbai

Mangesh R Patil vs M/O Communications on 10 June, 2024

ey) 1 OA No.137/2021

CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI

ORIGINAL APPLICATION No.137/2021
Dated this Monday, the 10" day of June, 2024

CORAM: SHRI R.N.SINGH, MEMBER (JUDICIAL)
SHRI RAJINDER KASHYAP, MEMBER (A)

Mangesh R. Patil, Gramin Dak Sevak Branch Post Master (GDSBPM).
Dahisar Branch Office, Mumbra S, 0. Thane-400 612,
R/at: Dativali Gaon, Diva East, Thane - 400 612. ~ Applicant .

(By Advocate Ms. Annie Nadar)
Versus

1. = The Union of India, through The Secretary,
Ministry of Communications, Department of Posts,
Dak Bhawan, Sansad Marg, New Delhi-110.001.

2. The Chief Postmaster General Maharashtra Circle, 2nd Floor,
Mumbai GPO Old Building, Mumbai - 400 001.

3. The Postmaster General, Navi Mumbai Region, 2nd Floor,
Mumbai GPO, Mumbai-400 001

4. The Senior Superintendent of Post Offices, Thane Division,
Thane-400 601
- Respondents
(By Advocate Shri R.R.Shetty)

Reserved on 15.03.2024
Pronounced on 10.06.2024

Page 1 of 64



2 OA No.137/2021

ORDER
Per: Rajinder Kashyap, Member (A)

Applicant has approached this Tribunal by filing this OA under Section 19 of the Administrative Tribunals, Act, 1985 by seeking the foliowing reliefs: -

"8(a). This Hon'ble Tribunal may be pleased to allow the Original Application;

&(b). To summon necessary records and on perusal of the same, deciare that the applicant is entitled to be included in the discharged/displaced GDS list as per DG, Posts letter No. 43-4/77-PEN dated 23.2.1979 and to be provided alternate employment on the basis of his services rendered so far.

&(c). To direct the Respondents to re-appoint the Applicant in the office of the Respondents in accordance with DG, Posts letter No. 43-4/77-PEN dated 23.2.1979 as he has already completed more than three years of service with the Respondents &(d). To release the pay of the Applicant for the period commencing 22.04.2017 till date which has been illegally withheld by the Respondents, along with interest at 18% p.a. 8(e). To Grant all consequential-benefits;

8(f}. Costs of the application be provided for.

| 8(g}. Any other and further order as this Hon'ble Tribunal deems fit in the nature and circumstances of the case be passed."

Page 2 of 64 = 3 OA No.137/2021

2. The brief facts of the case are that the applicant was working in the post of Gramin Dak Sevak, Branch Post Master (GDSBPM) in the Office of Respondent No.4 and was attached with Dahisar Branch Office, Thane-400 612 until his services were terminated orally by the Respondents in an illegal and arbitrary manner. His date of birth of is 08.10.1977. He possesses the qualification of SSC (10™Pass). The Applicant belongs to the Other Backward Class (OBC) category. 'He submits that he possessed the pre-requite qualifications to be appointed as Gramin Dak Sevak and was accordingly engaged on stop-gap arrangement on different posts such as Mail Deliverer (GDS MD) and Branch Post Master (GDS BPM) since the year 2000 onwards, in accordance with the Gramin Dak Sevak (Conduct and Employment) Rules against the available vacant posts.

2(a). The Applicant submits that he was appointed for three months initially on stop gap and has continued serving as a Gramin Dak Sevak, in various Post Offices at Mumbra S.O. and its Branch Offices at Kondhaie, Kalher and Dahisar, till date. The Applicant further submits that the workload in various Branch Offices under Mumbra Post Office, Thane re Page 3 of 64 4 OA No.137/2021 Division, increased due to number of posts lying vacant and accordingly his services were continued from time to time at different post offices. He submits that his appointment was duly approved by the Senior Superintendent of Post Offices, Thane Central Division, Thane. One such copy, authorizing the appointment of the Applicant on stop gap basis in GDS Cadre vide order No. A2/Stop Gap/Mumbra/2008 dated 12.09.2008 is marked and enclosed herewith as Annex A-3.

2(b). The Applicant further submits that he was paid Time Related Continuity allowance (herein after referred to as TRCA) on regular and continuous basis by the Respondents for the services rendered by him. The Applicant never had any grievance with regard to receipt of the TRCA. It is further submitted that since the GDS BPM of Dahisar BO attached with Mumbra PO had been put off, the Sr. Superintendent of Post Offices, Thane Division decided to make stop gap arrangement of one Shri Jayesh D. Gaikwad, GDS BPM Dahisar BO w.e.f. 09.03.2017 to 22.03.2017. The services of Shri Jayesh D. Gaikwad were terminated w.e.f. 23.03.2017. Accordingly, with the due authorization and approval of the Sr. Superintendent of Post Offices Thane Division, Thane the

-age 4 of 64 SY 5 OA No.137/2021 Applicant was provisionally engaged on stop gap arrangement as GDS BPM, Dahisar BO w.e.f. 23.03.2017.

2(c). The Applicant submits that on 23.03.2017 (Annexure A-4), Shri Jayesh Gaikwad handed over the charge of the post of GDS BPM, Dahisar BO to the Applicant under the supervision of the Mail Officer, O/o Asst. Superintendent Post Offices, Thane Sub-Division, Thane. Accordingly, the applicant is officially in possession of Muster Book/Daily Attendance Register, Stamp Book, Accounts Book, Branch Office Journal, Locker, IRCT Machine, Branch Office Stamp, date stamp etc. The Applicant further submits that the stop gap arrangement was made for a period of one month, i.e., w.e.f. 23.03.2017 till 21.04.2017. The Applicant received the TRCA for the said period. However, no arrangement was made by the SSPO to take over the charge from the applicant and he was orally asked to continue on the said post. The © applicant, in good faith, continued to hold charge of the post of GDS BPM at Dahisar B.0. till date. It is the submission of the Applicant that even after 22.04.2017, he was assigned the daily work and was still in possession of all the stamps and articles handed over to him under the Page 5 of 64 6 OA No.137/2021 supervision and approval of the appropriate authority, i.e., the Mail Overseer, O/o. Asstt. Supdt. Of Post Office, Thane Sub Division, Thane.

2(d). The Applicant submits that as the GDSBPM of the Dahisar BO, he is assigned various daily tasks which includes maintenance of records of the Branch Office, Maintenance and use of various hardware, linkage of Post Office Saving Account with India Post Payment Bank (IPPB), delivery of letters and articles, booking of articles, booking of Money Order, etc. The Applicant submits that he carried out all these functions efficientiy. Since no order of continuation of his appointment was issued by the Respondents, the Applicant regularly requested for issuance of the order. However, he was orally directed to continue on the said post of GDS BPM. The Applicant re-iterates that he was never informed to handover the charge by the Respondents, 2(e). The Applicant submits that an inspection of every Branch office is made annually. The Annual Inspections of the Dahisar BO under Mumbra SO for the year 2017 was made by Shri Prakash Waghmare, Asst. Supdt. of Post offices, on 14.12.2017. During the said inspection it was noted by the Asst. Supdt. that Shri. Jaidas Pp. Patil, the regular Page 6 of 64 7 OA No.137/2021 employee in the post of GDS BPM has been terminated from service. The inspector further recorded that Shri. Mangesh R. Patil has been holding the charge of BPM since 23.03.2017. He was provided several instructions by the Asst. Supdt to carry out the functioning of the BO ina smooth and efficient manner.

2(f}. The Applicant further submits that another surprise visit was made to the Dahisar BO, Mumbra SO on 05.12.2018 by Shri Prakash Waghmare, Asst. Superintendent, Thane. It was recorded by the Asst. Supdt. that Shri Mangesh R. Patil has been working as GDS BPM against the available post. Another such yearly inspection was carried out by Shri I. P. Singh, Asstt. Supdt. of Post Offices, Thane on 09.12.2019 and it was recorded that the Applicant was performing various functions of the branch office in the capacity of GDS BPM at Dahisar BO. It was further recorded that the Branch Office was frequently visited by the Mail Overseer, such as on 10.08.2019 and 23.11.2019, thus the work of the applicant was regularly supervised and approved by his superiors. The Annual inspection for the year 2020 was carried out on 29.12.2020 by Shri 1.P.Singh, Asstt. Supdt. of Post Offices, in the presence of the Pal Page 7 of 64 8 OA No.137/2021 Applicant. It is further submitted that a copy of the Inspection Report for the years 2017, 2018, 2019 and 2020 have been duly forwarded to the Senior Superintendent of Post Offices, Thane Division, 2(g). The Applicant submits that even though he continued to work on the post of GDS BPM, Dahisar BO, under the instructions of the competent authority, the payment of the TRCA was stopped. The Applicant has not received the TRCA for the period 22.04.2017 till date. The Applicant repeatedly requested for the disbursement of his TRCA for the period he was serving in the office of the Respondents, however he was assured that the same will be processed in due course of time, as his case is under review for regularization. The Applicant bonafidely hoped and expected that he will be appointed and regularized in the post of GDS BPM as he was regularly working with the Respondents since 2006. And thus, the Applicant did not insist on the payment of the TRCA as he trusted the Department to pay his dues as per the policies.

2(h). The Applicant submits that he has four dependents upon him, namely his widowed mother aged 65 years, his wife aged 32 years and two children aged 10 and 7 years. It is also submitted that the Applicant Page 8 of 64 wai Con 4} 9 OA No.137/2021 possesses a small share of agricultural land. Since the TRCA of the Applicant was not being disbursed w.e.f. 22.04.2017 onwards, the Applicant depended solely upon the meagre income from the Agricultural Land to make ends meet for his family. However, on account of COVID- 19 outbreak as a pandemic, the cultivation and produce from the Agricultural Land has affected adversely and thus mere survival of the Applicant and his family is at stake. And thus, the Applicant was compelled to request the Respondents in writing to disburse his TRCA and regularize his employment vide his representation dated 06.02.2021.

2(i). It is further submitted by the applicant that the Respondents have now initiated the process of selection and appointment of another GDS BPM, Dahisar BO against the post already occupied by the Applicant. A copy of the intimation letter dated 27.01.2021, cailing for document verification of a provisionally selected candidate to the post of GDS BPM, Dahisar BO and is marked and enclosed herewith as Annex A - 9. It is implied that the services of the Applicant are sought to be terminated, without considering him for regularization against any vacant post,

Page 9 of 64 10 OA No.137/2021

which is in total disregard of letter No. 43-4/77- PEN dated 23.02.1979 and dated 18.05.1979, further modified vide DG P&T Letter No.19- 34/99-ED&TRG dated 30.12.1999 (Annex A-1). The Respondents have made no provisions to disburse the TRCA of the Applicant for the period of 3 years and 9 months, 2(j). The Applicant submits that instead of considering the genuine request of the Applicant for payment of TRCA and regularization in service, the Respondents sent two Senior Officials, namely - Shri Bapu S. Bhoir, Mail Overseer and Shri Indradeo P. Singh, Asstt Superintendent of Post Offices, to Dahisar BO, on 16.02.2021 to take over charge from the Applicant. No formal order of suspension of the stop gap arrangement of the Applicant was issued to him, however, abusing their official powers, Shri Bapu Bhoir, Mail Overseer and Shri Indradeo P. Singh, Asst. Supdt. of Post Offices, without any written authorization forced the Applicant to handover charge of the Dahisar BO. After much insistence, the above-named officials recorded that charge is taken over from Shri Mangesh R. Patil, Applicant. The documents taken-over from the ww?

Page 10 of 64 SZ 11 OA No.137/2021

Applicant pertain to the period 23.03.2017 to 16.02.2021 which is clearly indicated in the charge handover report.

2(k). The Applicant humbly begs to re-iterate that he has been in continuous service in the post of GDS BPM since 23.03.2017 till 16.02.2021, without any breaks whatsoever. This is clearly indicated by the charge takeover report dated 23.03.2017 (Annexure A-4) and charge handover report dated 16.02.2021 [Annexure A-9(a)]. Further, Shri Bapu Bhoir, Mail Overseer and Indradeo P. Singh, Asst. Supdt. of Post Offices, upon much insistence of the Applicant made another note and handed over to the Applicant indicating that the payment of the Applicant working as Stop-Gap, Branch Post Master, Dahisar Branch Office is pending from 22,04,2017 to 16.02.2021. A copy of the noting handed over to the Applicant, duly stamped and signed by Shri Bapu Bhoir, Mail Overseer and Shri Indradeo P. Singh, Asst. Supdt. of Post Offices is marked and enclosed herewith as Annex A-9(b). The officials have deceived and outwitted the naive and innocent Applicant by specifically stating only the post held by the Applicant and have intentionally concealed the name of the Applicant. However, the noting duly signed 1 ae Page 11 of 64 12 OA No.137/2021 by the said officials and handed over to the Applicant, in order to receive his payment, proves without doubt that it was only the Applicant who held the post of GDS BPM, Dahisar BO since of 23.04.2017 to 16.02 2021 Shri Bapu Bhoir, Mail Overseer and Shri Indradeo P. Singh, Asst. Supdt. of Post Offices have thus abused their powers and have not acted in good faith and bona fide.

2(i). The Applicant further submits that in order to establish that he has been working on the said post of GDS BPM continuously since 2017 till, 16.02.2021, when his services were terminated orally by the Respondents and he was forced to hand over the charge to Shri Bapu Bhoir, Mail Overseer and Shri Indradeo P. Singh, Asst. Supdt. of Post Offices without any written instructions, relies on the following documents issued by the Respondents -

"a. A copy of the ID card issued to the Applicant during the lockdown period to enable to function as an Essential Service provider. The same has been duly signed by Shri Indradeo P. Singh, Asst. Supdt. of Post Offices. {Annex A9(c)). The said document substantiates the claim of the Applicant that he was in service with the Respondents in the year 2020, during the entire lockdown period.

b. A photo of the R.I.C.T. machine indicating the name of the Applicant along with the date. The latest photo " Page 12 of 64 13 OA No.137/2021 available with the Applicant is that of 05.01.2021 Annex A-9(d}, The Applicant submits that upon receipt of the representation of the Applicant dated 06.02.2021, the R.L.C.T machine of the Applicant was de-activated which the Applicant brought to the notice of the Respondents vide his letter dated 13.02.2021. The said machine was taken over by the Respondents as indicated in the charge takeover report. This clearly indicates that the Applicant was in continuous possession of the R.I.C.T. Machine since 2017 till 16.02.2021."

2(m). The Applicant thus submits that the Respondents have extracted work from the applicant for almost four years, however, when the applicant humbly requested in writing that his pay may be processed, the Respondents have straightway, without any written orders, terminated the services of the Applicant and have forcefully taken over the charge from him. Such an action of the Respondents is in clear violation of the Article 14 , 16 and 21 of the Constitution of India. Aggrieved by the illegal and inaction on the part of the respondents, the present O.A. has been filed by the applicant for redressal of his grievances.

3. Applicant has filed MA No.144/2021 for bringing additional documents on record wherein it is stated by him that he had submitted av wr Page 13 of 64 14 OA No.137/2021 a representation to the Respondent No.4 seeking regularization of his services in the Department of Posts and release/disbursement of payment and allowances (TRCA) for the period commencing 22.04.2017 till date. The Respondents instead of considering the genuine request of the Applicant, sent two officials to Dahisar BO on 16.02.2021 to take over charge from the Applicant. No formal order of suspension of the stop gap arrangement of the Applicant was issued to him. However, abusing their official powers, Shri Bapu Bhoir, Mail Overseer and Shri Indradeo P. Singh, Asst. Supdt. of Post Offices, without any written authorization from the competent authority, forced the Applicant to handover charge of the Dahisar BO. After much insistence, the above-

"named officials recorded that charge is taken over from Mangesh R. Patil, the present Applicant. The records/documents taken over from the Applicant pertain to the period 23.03.2017 to 16.02.2021 which is clearly indicated in the charge handover report.

3(a). The Applicant humbly begs to re-iterate that he has been in continuous service in the post of GDS BPM since 23.03.2017 till 16.02.2021, without any breaks whatsoever. This is evident from the Page 14 of 64 Sy 15 OA No.137/2021 Charge Takeover Report dated 23.03.2017 (Annexure A-4) and Charge Handover Report dated 16.02.2021 (Annexure MA-1). Further, Shri Bapu Bhoir, Mail Overseer and Indradeo P. Singh, Asst. Supdt. of Post Offices, Thane Sub-Division, Thane, upon much insistence of the Applicant made another note and handed over to the Applicant indicating that the payment of the Applicant working as Stop-Gap, Branch Post Master, Dahisar Branch Office is pending from 22.04.2017 to 16.02.2021. The officials have deceived and outwitted the naive and innocent Applicant by specifically stating only the post held by the Applicant and have intentionally concealed the name of the Applicant.

3(b). However, the noting duly signed by them and handed over to the Applicant, in order to receive his payment, proves without doubt that it was only the Applicant who held the post since of 23.04.2017 to 16.02.2021. Shri Bapu Bhoir, Mail Overseer and Indradeo P. Singh, Asst. Supdt. of Post Offices have thus abused their powers and have not acted in good faith and bona fide. The Applicant has been paid the Time Related Continuity Allowance only for a period of one month in July 2017 for the services rendered by him from 23.03.2017 21.04.2017 and a Page 15 of 64 16 OA No.137/2021 as such, the aforenamed officials have duly noted that the payment of the Applicant is pending for the period 22.04.2017 to 16.02.2021.

3(c). in addition to the aforementioned documents annexed to the Misc. Application, the Applicant wishes to bring further documents on record to establish that he was working on the said post of GDS BPM continuously since 23.03.2017 till 16.02.2021, when his services were terminated orally by the Respondents and he was forced to hand over the charge to Shri Bapu Bhoir, Mail Overseer and Shri Indradeo P. Singh, Asst. Supdt. of Post Offices without any written orders by the competent authority. The Applicant thus begs to bring on record the following documents -

a. Copy of the Identity Cards issued to the Applicant by Shri indradeo P. Singh, Assistant Superintendent of Post Offices, Thane Sub Division, Thane and the Sub-Post Master (Class-i), Mumbra P.O., Mumbra, to enable him to function as an Essential Services provider during the lockdown period. (Annex MA - 4 colly). The said documents substantiate the claim of the Applicant that he was in service with the Respondents in the year 2020, during the entire lock down period.

b. Photos of the R.I.C.T. machine indicating the name of the Applicant along with the date. The latest photo available with the Applicant is that of 05.01.2021. (Annex MA 5) The Applicant submits that upon. receipt of the Page 16 of 64 &@ 17 OA No.137/2021 representation of the Applicant dated 06.02.2021, the R.I.C.T. machine of the Applicant was de- activated which the Applicant brought to the notice of the Respondents vide his letter dated 13.02.2021. The said machine was taken over by the Respondents as indicated in the Charge Takeover Report annexed as Annex MA-1 This clearly indicates that the Applicant was in continuous possession of the R.1.C.T. Machine since 2017 till 16.02.2021.

3(d). Thus, in view of these additional documents brought on record, it is evident and leaves no doubt that the Applicant has been working continuously with the respondents for the period 23.03.2017 till 16.02.2021, without any breaks whatsoever. The Respondents have extracted work of two persons from the applicant, i.e. GDS BPM and GDS MD, for aimost four years, however, when the applicant humbly requested in writing that his pay may be processed, the respondents have straightway, without any written orders, terminated the services of the Applicant and have forcefully taken over the charge from him. Such an action of the Respondents is in clear violation of the Article 14 , 16 and 21 of the Constitution of india.

4. Respondents has filed his reply on 11.10.2021 wherein it is stated by them that the applicant who happened to be working in the post of fad Page 17 of 64 18 OA No.137/2021 Gramin Dak Sevak Branch Post Master in the Dahisar Branch Post Office under the jurisdiction of the Respondent No.4 from 23.03.2017 upto 22.04.2017 on which day his engagement stood automatically terminated as per the letter dated 09/19.06.2017. The applicant claims to have continued in the said post despite there being no arrangement of engagement including letter of appointment in his favour and therefore, the so called purported service rendered by the applicant post 21.04.2017 is clearly without any authority and thereby disentitling him to any benefit whatsoever post 21.04.2017. Whereas, the relevant Order No. A2/Engagement/ BPM/Dahisar 80/2017 dated 9/19.06.2017 is enclosed herewith and marked as Annexure R-1, to show that the stop gap arrangement of the Applicant as BPM, Dahisar, B.O. had come to an end on 22.04.2017 itself. tf the applicant has illegally not handed over charge post 22.04.2017, the respondents cannot be liable to pay the TRCA to the Applicant.

4(a). The question of therefore the applicant being paid any emoluments which is termed as Time related continuity allowance (hereinafter referred as TRCA) for the period 22.04.2017 to 16.02.2021

Page 18 of 64 SS . 19 OA No.137/2021

does not arise. The respondents had to send their Assistant Superintendent of Posts, Shri |.P. Singh along with another and take back possession of the office of Branch Postmaster the operation of which was being conducted from the office of the Gram Panchayat at Dahisar Branch Post Office. The question of therefore the applicant having purportedly completed 3 years of continuous service in the office of the respondents as a Gramin Dak Sevak and thereby entitling him to regular engagement does not arise.

4(b). It is submitted by the respondents that so far as payment of emoluments post 21.04.2017 is concerned, the respondents respectfully submit that there was no engagement and therefore the contract of engagement in the post of Gramin Dak Sevak was non-existent. The question of therefore paying him any emoluments post 21.04.2017 does not arise. So far as the applicant's non handing over of charge, the respondents are undertaking an investigation to ascertain as to who is responsible for a lapse in not removing the applicant from the office and allowing him to allegedly to continue there. The said action is not only illegal and without any authority but cannot create any right in favour of

Page 19 of 64 Sy 20 OA No.137/2021

the applicant as the Union of India cannot be held responsible for a lapse on the part of its employee in not taking over charge from the applicant whose services stood automatically terminated w.e..

22.04.2017. The respondents therefore respectfully submit that this Hon'ble Tribunal may dismiss the present O.A. with costs.

A(c). The respondents have repeated and reiterated what is stated above. They further submit that the applicant has worked in the office of the respondents at various positions the details whereof enclosed by way of a table and marked as Annexure K-2, a careful perusal whereof would show that he has worked as Gramin Dak Sevak for only a period of one month from 23.03.2017 until 21.04.2017. The respondents therefore respectfully pray that this Hon'ble Tribunal be pleased to dismiss the dual demand of the applicant, the first being the regularization in the office of Gramin Dak Sevak and the second being his alleged entitled to TRCA post 22.04.2017 when there was no privity of contract between him and the Union of India. The Respondents further submit that all recruitment on regular basis in the post of GDS is to be made as per Government of India, Department of Posts, Lr. No.17- a Page 20 of 64 Tea Te ae ;

tevat?

Sz 21 OA No.137/2021

39/6/2012-GDS dated 14.01.2015, a copy whereof is enclosed herewith and marked as Annexure R-2 (I). The demand of the applicant for regular engagement in violation of the above rules/notification is therefore not tenable in law.

-A(d).The respondents submit that the applicant has earlier occasions worked on stop gap arrangement basis from October, 2006 to April, 2017 at Kalher Branch Office and from Sep 2008 to 06.12.2008 at Mumbra Sub Office, copies of his stop gap arrangement details whereof are enclosed as Annexure A-2 and A-3 in the O.A. to show that his stop gap arrangement was nothing new for the Applicant and he was well aware of this procedure. The Respondents whenever attempted to take back the charge from the Applicant, met with resistance including the whole village ganging up in his favour. Due to this, the respondents had to finally seek police help to force the Applicant to hand over charge as can be seen from letter dated 15.02.2021 written by the ASP to the Sr. Police Inspector Dighar Police Station, and DCP, Thane City, Zone-1, a copy whereof are enclosed as Annexure R-3 and Annexure R-4.

Page 21 of 64 22 OA No.137/2021

4(e). The respondents submit that the appointment is based on stop gap arrangement and not provisional engagement, as both the terms are different. Engagement of GDS is for particular post. Working against different post cannot be linked with each other. Even for filling up of any GDS Post, in each notification for filling up the post of particular post office, the name of the Post and Post office is being mentioned. Hence working in stop gap arrangement at different post offices cannot be treated as continuous duty and cannot be eligible for as appointment.

Stop gap arrangement is a short term work.

A(f}. The respondents submit that during 2008, the post of Gramin Dak Sevak under Mumbra Sub Post Office fell vacant. The work of Branch Post Office cannot be kept pending. The applicant approached to Division Office and requested for job. To manage the work, Division Office directed ASP Thane Sub Division to engage the applicant on stop gap basis, hence applicant worked temporarily. From 19.12.2008, the applicant was replaced by another person on stop gap and his engagement was terminated. That time applicant did not have any objection. So this time applicant was well known of the departmental! ww Page 22 of 64 SZ 23 OA No.137/2021 procedure. After that the above mentioned GDS Post was engaged on regular basis. Again in 2017 when regular GDS BPM of Dahisar BO was put off, applicant was engaged as BPM Dahisar BO on stop gap basis i.e. part time for 3 hours of work, therefore applicant has other source of income and he was not dependent on postal work.

A(g). The respondents submit that the Applicant was paid stop gap wages and not Time Related Continuity Allowance (FRCA), which is paid only to provisionally engaged or Regular GDS employee. They submits that due to non possibility of engagement of regular BPM of Dahisar BO, the applicant was engaged on Stop Gap arrangement basis on 23/03/2017 with clear instructions of temporary engagement. Later, Stop Gap arrangement of the applicant was terminated on 22/04/2017. They submit that when engaged on Stop Gap arrangement as GDS, he has to perform all the duties of Branch Postmaster or whatever is assigned to him. The post of Branch Postmaster Carries financial transactions as well as other liabilities of handling cash, stamps, Registered/unregistered articles of mails, money orders etc. As such, the oa Page 23 of 64 24 OA No.137/2021 charge of Branch Postmaster was handed over to the applicant under acquaintance.

4(h).The respondents further submit that the Applicant received Stop gap wages for one month w.e.f. 23.03.2017 to 21.04.2017 as his stop gap arrangement was terminated on 22.04.2017. There is no provision to ask applicant to continue the work. He did not appear before Sr. Supdt. of Post Offices, Thane Division. After this, applicant illegally retained the charge of Branch Post Master Dahisar Branch Post Office. There is no communication by the applicant orally or written regarding issuance of the appointment order or any other arrangements as the applicant intentionally never communicated about the same as his intention was to claim his illegal expectations of continuation of employment. Applicant did not point out arrangement before Mail Overseer or Astt. Supdt. Of Posts, Thane Sub Division as well.

4(i). The respondents submit that GDS needs to perform all the duties of Branch Post Master or whatever is assigned to him as and whenever required. As stated earlier there is no communication with the applicant in writing or orally to continue the arrangements. Work of IPPB (India a Page 24 of 64 Sy 25 OA No.137/2021 Post Payment Bank) cannot be assigned to him. Applicant had opened only 1 Sukanya Samrudhi account, 4 Recurring Deposit accounts and 2 Savings accounts. The work done by applicant is very negligible; normally the same work can be done in one or two days only. It is submitted that Inspecting officer clearly mentioned that Shri Mangesh Ramesh Patil was working on stop gap basis and also intimated him that his stop gap arrangement may be terminated at any time as and when required.

4(j). The respondents states that ASP Thane Sub Division has recorded in his Annual Inspection Report of 2017, 2018 & 2019 that, Shri. Mangesh R. Patil has been working as stop gap arrangement on vacant post of GDS BPM Dahisar BO. Inspecting Officer has to mention in Annual Inspection report about the person who is holding the post on regular basis or stop gap arrangement or substitute arrangement. He has clearly mentioned in the Annual Inspection Reports that the vacant post is managed by Shri Mangesh Ramesh Patil working on stop gap basis. Inspection/Visit to Branch Post offices are made as a check on performance of post offices. Similarly Mail Overseers are giving a Page 25 of 64 26 OA No.137/2021 quarterly visit to Branch Post offices. As, visit of Mail Overseers on 10.08.2019 & 23.11.2019 are part of duties of Mail Overseers to keep watch on performance of Branch Post offices.

A(k). The respondents further submit that the inspection reports for the years 2017, 2018 and 2019 were not officially handed over to the applicant, however by forcibly continuing to hold the charge despite the appointment of the applicant having to come an end, he has produced the documents as can be seen from Annexure A-5, being the report for 2017, the relevant whereof at page 32 where it could be seen that the inspection report is only marked to BPM, Dahisar B.O., of which he was illegally holding the charge. These documents were therefore illegally extracted by him from the office records of Dahisar B.O. of which he was holding charge without any authorization. So far as the report of 2020 is concerned, he had obtained the same under Right to Information Act. In respect of Inspection report for the years 2017 to 2020, the respondents herein respectfully submit that the applicants by virtue of being in the same village where Branch Office was located, continued to illegally function in the said branch without due permission and obviously with a wn Page 26 of 64 27 OA No.137/2021 connivance from the authorities in the office of Asst. Superintendent of Posts. The respondent Union of India cannot be held responsible for paying dues to a person who is usurper of the office of GDS, BPM, Dahisar.

A{l). The respondents submit that the applicant intentionally never requested for his stop gap wages in writing or orally during his engagement period as the applicant's intention was to wait for three years to file the complaint against the department. The work of GDS was. only three hours in a day. It was confirmed by the applicant before handover the charge, he has sufficient source of income for living. There is no provision for drawing regular wages; moreover he retained illegal - charge of above post without any wages purposefully. He was well aware of process of drawing wages, i.e. it is necessary to submit charge report time to time but it seems that he did not need of wages, and he also knew that the same issue of retaining illegal charge will rise in future hence he did not submitted any charge report or made any | request for wages with concern authority.

Page 27 of 64 28 OA No.137/2021

4(m). The respondents submit that wages are discontinued w.e.f. 22.04.2017 due to termination of his stop gap arrangement. How can applicant be patient for such a long period of three and half years if he did not get any wages? It's because applicant had a wrong intention of keeping illegal charge of Gramin Dak Sevak Branch Postmaster, Dahisar Branch Post Office. They submit that process of regular engagement on vacant post of BPM Dahisar Branch Post Office is duly completed on 25.02.2021. Smt. Manali S Matal is working as Regular BPM Dahisar BO.

4(n). The respondents have repeated and reiterated what is stated above and submit that repeated attempts were made by the Assistant Superintendent of Post Offices to take charge from the applicant which had failed on account of which finally the respondents have no alternative but to take police help to take the charge from the applicant. So far as the payment of emoluments to the applicant is concerned, it would be appreciated that at Annexure at page 95 of the paper-book, the applicant himself has produced acquaintance roll showing that he had collected TRCA to the tune of Rs.6,046/- for the period 01.04.2017 to 21.04.2017, the latter being the last date on which he was officially Page 28 of 64 29 OA No.137/2021 supposed to be in service. For the earlier period from 23.03.2017 to 31.03.2017 also he has been paid a sum of Rs.2,509/- which is enclosed by him at Page 96 of the paper-book. From the aforesaid, it would be appreciated that the respondents Union of india cannot be held responsible for paying emoluments to the applicant who has connived with the officials in the office of the Assistant Superintendent of Posts, Thane in illegally and forcibly staying in office.

4(o). The respondents further submit that since stop gap arrangement was terminated on 22.04.2017, no question arises again for issue of termination order as applicant has illegally retained the charge of BPM Dahisar BO. No communication by the applicant orally or written regarding issuance of the appointment order or any other arrangements as the applicant intentionally never communicated about the same as his intension was to ciaim his illegal expectations of continuation of employment.

A(p). It is respectfully submitted that despite repeated attempts to take charge from the applicant, which had failed for obvious reasons being more than one, the respondents had to finally take police help by Page 29 of 64 30 OA No.137/2021 writing to the office of the DCP, Zone-l, Thane City, for entering the village and taking back the charge of the Branch Post Master, Dahisar B.O. from the applicant. The applicant has already been given termination notice on 19.06.2017 which confirms that he was not supposed to be in office for even a day beyond 21.04.2017. The applicant has not been able to show any document to prove that he continued to be in office thereafter. The letter dated 19.06.2017 which the applicant has deliberately suppressed from this Hon'ble Tribunal has been addressed to the applicant by name as also the BPM, Dahisar B.O. which charge he was illegally holding beyond 21.04.2017. The acknowledgments received in respect of these registered post letters shall be produced during the course of hearing for the kind perusal of the Hon'ble Tribunal. The obvious reason for suppression of the termination letter, bringing his appointment to an end w.e.f. 22.04.2017 is more than obvious. The applicant has therefore clearly approached this Hon'ble Tribunal with unclean hands and therefore does not deserve any relief.

Page 30 of 64 Sy 31 OA No.137/2021

4(q). The respondents further submit that since stop gap arrangement was terminated on 22.04.2017 and has retained the post of BPM illegally without any written or oral order no payment was drawn. During Inspection of Inspecting Officer i.e. Assistant Superintendent Thane, applicant never raised the issue or point out the fact about non drawal of his pay for the period. This clearly shows that, the intention of the applicant was illegally to retain the post. Applicant was neither giving charge to Shri Bapu Bhoir, Mail Overseer on 10.02.2021 nor to ASPOS Thane Sub Division on 11.02.2021 during their personal visit. Hence Police complaint was lodged by ASPOs Thane Sub Division on 15.02.2021 against the applicant (Annexure R3 & R.4). They submit that the ID which he has produced and was issued to the applicant to attend duty as an essential service provider cannot be a document which entitles to him to continue beyond the date of 21.04.2017.

A(r). The respondents further submit that during the lock down period in 2020 daily wages, Stop Gap/Substitute engaged workers were provided with Essential Services Card for providing Postal Services in CORONA Lock Down period and the same has been mentioned in the f Page 31 of 64 32 OA No.137/2021 Identity Card itself by issuing authority. It is not an identity card issued by the department being issued for regular Gramin Dak Sevak. RICT (Rural Information Communication Technology) Devices are provided to Stop Gap/Substitute to perform the work of Branch Post offices without RICT Device, person cannot perform Branch Office work. Since the applicant's Stop Gap arrangement was terminated on 22.04.2017, he has illegally retained the Device with him. On 16.02.2021, the Device was taken back from him. The respondents submit that it is unheard of that a person continues to be in Government service even on ad-hoc basis for a period of four years without collecting any emoluments unless the so called continuance of service is beyond the authority for him to do so and is an iliegal act, which is precisely what has happened in the present case.

A{s). The respondents further submit that the Applicant has illegally retained the charge of BPM even after termination of stop gap arrangement on 22.04.2017. Since stop gap arrangement was terminated on 22.04.2017 no separate order is required again for termination. They submit that the provision mentioned in letter No.43- "Tt Page 32 of 64 33 OA No.137/2021 4/77- PEN dated 23.02.1979 and dated 18.05.1979 (with respect to providing alternate appointment to such persons who have put in not less than 3 years of continuous service on provisional basis) is only related to provisionally selected candidates as Erstwhile Extra Departmental (ED) Agent now known as Gramin Dak Sevak, and not for stop gap arrangements as the applicant was appointed on stop gap basis. Hence the same order is not applicable in this case. The Applicant is not Extra Departmental agent or Gramin Dak Sevak. He simply worked on stop gap basis. The provisional engagement and stop gap arrangement both are different. Stop Gap is a temporary or a makeshift arrangement uniess a more permanent solution is put in place. 'Provisional engagement Order is subject to pending verification of character and antecedent/caste certificate/educational qualification.

4(t). Respondents relied on the judgment dated 18.11.2013 in WP No.24557/2013 filed by Department of Post Vs Sandeep H.L. before High Court of Karnataka bench at Bangalore in a similar case wherein WP filed by Department is allowed and Hon'ble Court has quashed the CAT Order dated 13.02.2013 passed by Hon'ble CAT Bangalore Bench. is a Page 33 of 64 34 OA No.137/2021 enclosed as Annexure R-5.Further respondents rely on Judgment dated 27.11.2020 passed by Hon'ble CAT Bangalore Bench in OA No.318/2020 filed by Basavraj Vs Department of Post in a similar case wherein Hon'ble CAT Bangalore Bench dismissed the OA filed by the applicant is enclosed as Annexure R-6. They submit that for engagement of GDS no experience is required. The selection is made through online application process and purely on merit basis of 10th Std exam. The applicant was engaged purely on temporary basis, without following any selection procedure.

4(u). The respondents submit that after expiry of the stop gap arrangement period no wages can be paid. Applicant himself violated the departmental norms by illegally keeping charge of Branch Postmaster, Dahisar Branch Post Office. They submit that department functions within the framework of rules and set of instructions. The prayer of the applicant, to give him regular engagement without following prescribed procedure, is against rules. Therefore, the Hon'ble Tribunal be pleased to dismiss the present 0.A. with costs. The Applicant's representation is illegal and violative of departmental rules Page 34 of 64 35 OA No.137/2021 as his demands are completely with mala fide intention and not circumstantial.

A(v). The respondents further submit that the provision mentioned in the letter No.43-4/77- PEN dated 23.02.1979 and dated 18.05.1979 (with respect to providing alternate appointment to such persons who have put in not less than three years of continuous service on provisional basis) is only related to provisionally selected candidates as (Erstwhile Extra Departmental (ED) Agent) now known as Gramin Dak Sevak and not for stop gap arrangements. The applicant was engaged on stop gap basis. Hence, the same order is not applicable in this case. Applicant is not ED agent/Gramin Dak Sevak. He simply worked on stop gap basis. The provisional and stop gaps both are different. Stop Gap is a temporary or a makeshift arrangement unless a more permanent solution is put in place. Provisional engagement Order is subject to pending verification of character and antecedent/caste certificate/educational qualification for Gramin Dak Sevaks who are selected on regular basis.

Page 35 of 64 36 OA No.137/2021

4(w). The respondents submit that the applicant cannot be granted regular appointment in consonance with 23.02.1979 circular since the terms of appointment are clearly governed by the Department of Posts circular, dated 14.01.2015, the demand of the applicant is therefore for seeking relief de hors the recruitment rules for regular recruitment in the post of GDS. Any continuation of the applicant beyond 21.04.2017 without specific sanction, therefore, from the office of the Senior superintendent of Post Offices, Thane Division, Thane, who is the only competent authority to engage Branch Postmasters in his jurisdiction, cannot create legal right in favour of the applicant compelling the Union of India to pay the applicant for this illegal continuance in service from the public exchequer. The present O.A. is, therefore, clearly devoid of merits and deserves to be dismissed with costs. The respondents pray accordingly and as per the vacancy notified in the GDS 2™Cycle, the post of Branch Post Master has been filled up and new candidate has joined on 25.02.2021 on the basis of merit. It is submitted that since his Stop Gap arrangement was already terminated w.e.f. 22.04.2017 and he has not submitted charge report for drawal of pay after termination of his a Page 36 of 64 GS 37 OA No.137/2021 engagement and he has retained the post illegally hence he has not been paid wages.

5. Applicant has filed his rejoinder on 03.03.2023. He has stated that he has filed the present OA being aggrieved by the illegal and arbitrary action of the Respondents is not regularizing his services rendered in the post of Gramin Dak Sevak, Branch Post Master, (GDS BPM) at Dahisar BO and further the Applicant has not been paid any remuneration for the period 23.04.2017 till 16.02.2021, i.e., for 3 years and 10 months, despite his repeated requests. It is an undisputed fact that the Applicant was engaged on provisional basis as GDS BPM at Dhaisar BO on 23.03.2017. The Charge report in support of the said fact is marked and enclosed to the Original Application as Annexure A-4.

5(a). it is the contention of the Applicant that no formal order of joining was issued upon him, except for the charge takeover report. The Respondents, however, claim that they have issued order dated 9/19.06.2017 (Annex R-1) which indicates that the stop gap arrangement of the Applicant as BPM, Dahisar BO had come to an end on 22.04.2017. A careful perusal of the dates indicates that this order Page 37 of 64 38 OA No.137/2021 has been issued on 19.06.2017 which is much later than the date of the alleged termination, i.e., after two months from the date the Respondents allege that the Applicant stood terminated. Further, the order is apparently addressed to the Applicant, i.e., Shri Mangesh R. Patil at PO Dahisar, via Mumbra SO. This indicates that the Respondents were of the knowledge that even on 19.06.2017, the said post of GDS BPM, Dahisar BO is being occupied by the Applicant.

5(b). The Applicant, however, submits that he was never in receipt of this order. The order further requires the applicant to return the duplicate copy of the said order duly signed to. the office of the Respondents, immediately. However, since the Applicant had never received this order, he could not have sent a signed duplicate copy to the Respondents. The copy of the order dated 09/19.06.2017 attached as Annexure R-1 is not signed by the Applicant and therefore this itself indicates that this order was never served upon the Applicant. Further, the said order does not state anything about handing over of charge. The Respondents have intentionally extracted work out of the Applicant for the period 23.04.2017 till 16.02.2021 and are now claiming to have Page 38 of 64 39 OA No.137/2021 terminated him on 23.04.2017 and denying him his rightful dues. Such an action on the part of the Respondents is not only illegal but also inhumane.

5(c). Further, the Respondents contend that they had sent their Assistant Superintendent of Posts, Shrii.P.Singh to take back possession of the office of Branch Postmaster. However, this statement is made simply with the intent to mislead this Hon'ble Tribunal. The Respondents have failed to bring on record any evidence that indicates that the Respondents had made any attempt to take charge from the Applicant during the years 2017-2021. On the contrary, the Applicant has brought on record several Annual Reports, statements and documents which clearly indicate that the Respondents were very well aware that the Applicant was working as the GDS BPM at Dahisar BO.Details of the visits by the Assistant Superintendent of Post Offices and the Mail Overseer of Thane Sub-Division to the Dahisar BO, where the applicant was working as GDS BPM, as culled out from the Inspection Report for the period 2017 to 2021 is indicated herein below:

Page 39 of 64 40 OA No.137/2021

Inspection | Date of Visits | Name of the | Relevant Name of the Report for officer who/| para of | applicant the year visited the! Inspection appears at Branch Report 2017 09.10.2017 Mail Para 22 & Overseer (pg. 32 of 13.11.2017 OA) .

14.12.2017 Asstt. Supdt. , Para 1 Para 2 of Post | (Pg. No.29 of Offices OA) 2018 27.11.2018, Mail Para 14 16.08.2018, Overseer (pg. 43 of 18.06.2018 & OA) | 20.02.2018 05.12.2018 Asstt. Supdt| Para 1 (pg. | Para 2 of Post | 42 of OA) (Pg. 42) Offices 2019 10.08.2019 & | Mail Page 49 of

23.11.2019 Overseer the OA 09.12.2019 Asstt. Supdt. | Pg. 49 of the | Para 16.1 of Post | OA (Page 53) Offices 2020 03.12.2020 Mail Pg 66(a) of Overseer OA 29.12.2020 Asstt. Supdt. Para 15.1 of Post Pg. 66(R) of Offices OA Page 40 of 64 cy Al OA No.137/2021 5(d). It is the submission of the Applicant that he made several oral requests to the Respondents to consider his case for regularization as well as for payment of his TRCA. The Applicant was assured orally that his case is under consideration and, therefore, he should patiently continue to perform his duties at his present place of posting until orders in his favour are issued. The Applicant, therefore, continued to perform his duties as GDS BPM and bonafidely hoped and expected that he will be appointed and regularized in the post of GDS BPM as he was regularly working with the Respondents since 2006. And thus, the Applicant did not insist on the payment of the TRCA as he trusted the Department to pay his dues as per the policies.

5(e). The Applicant is further seeking regularization in accordance with letter No. 43-4/77-PEN dated 23.02.1979 and 18.05.1979 which are further clarified by DG P&T Letter No. 19-34/99-ED&TRG dated 30.12.1999 issued by the Department of Posts wherein it has been provided that -

"Efforts should be made to give alternative employment to ED Agents who are appointed provisionally and subsequently discharged from service due to administrative reasons, if at Page 41 of 64 42 OA No.137/2021 the time of discharge, they had put in not less than three years' continuous approved service [Emphasis Supplied]. In such cases, their names should be included in the waiting list of ED Agents discharged from service, prescribed in D.G., P& T letter No. 43-4/77-Pen., dated 23.2.1979."

Therefore, the order of the Respondents dated 14.01.2015 [Annexure R-2(I)] has no relevance to the present Original Application.

5(f). It is submitted that it is a fact that he was appointed on stop gap arrangement during the years 2006-2017 for different periods. The Respondents have on every occasion taken charge from the Applicant upon appointment of regular GDS BPM and, therefore, he has never had a claim for regularization against any of his previous engagements on stop gap arrangement which was for short durations. However, in the present instance, the Applicant was given charge of GDS BPM on 23.03.2017 and the same was not taken over from him until 16.02.2021. This fact is substantiated by the charge handover report and the note of the Asstt. Supdt. Of Post Offices dated 16.02.2021, which is enclosed to the Original Application as Annex 9 {a) and (b).

Page 42 of 64 43 OA No.137/2021

5(g). Further, the Respondents are blatantly making a false statement that whenever the Respondents attempted to take back the charge from the Applicant, they met with resistance including the whole village ganging up in his favour. If that was the case why did the respondents not make any police complaint against him prior to 15.02.2021. The accusation of the Respondents is nothing but an afterthought and does not hold any water. Further, even on 15.02.2021, the Respondents have only assumed that they may face resistance and therefore sought for police force, however, no such force was actually required as there was no resistance from the Applicant to hand over the charge. The Applicant had already filed the Original Application before this Tribunal on 10.02.2021 and was, therefore, availing his remedies in accordance with - law. The Respondents must therefore be penalized with heavy costs for making such false and misleading accusations against the applicant.

5(h). The applicant submits that assuming his stopgap arrangement stood terminated on 21.04.2017, the respondents should have made some arrangements to take over charge from the Applicant which was never done. The Applicant could not have abandoned the office without Page 43 of 64 SZ 44 OA No.137/2021 handing over charge to a representative of the Department. Further, the Applicant was orally assured of regularization and, therefore, he did not insist upon his TRCA for the time being. However, the Annual Reports, orders and documents clearly indicate that the Respondents were well aware that the Applicant is working as the GDS BPM at Dahisar BO and there is misrepresentation or fraud on the part of the Applicant. The submissions of the Respondents clearly indicates that they were aware of the Applicant continuing on the post of GDS BPM, Dahisar BO, during in the years 2017 - 2020 and the same has been recorded in the Annual Inspection Reports of 2017, 2018, 2019, and 2020. The Applicant is, therefore, entitled to the salary/ wages for the said period and also for consideration for regularization as per the provisions of DG P&T Letter No. 19-34/99-ED& TRG dated 30.12.1999.

5{i). The Applicant has already stated in the Original Application that he possesses a small share of agricultural land. Since the TRCA of the Applicant was not being disbursed w.e.f. 22.04.2017 onwards, the Applicant depended solely upon the meagre income from the Agricultural Land to make ends meet for his family. However, on Page 44 of 64 ey 45 OA No.137/2021 account of COVID-19 outbreak as a pandemic, the cultivation and produce from the Agricultural Land was affected adversely and thus, mere survival of the Applicant and his family is at stake and thus, he was compelled to request the Respondents in writing to disburse his TRCA and regularize his employment vide his representation dated 06.02.2021.

5(j). The Applicant submits that instead of considering his genuine request forpayment of TRCA and regularization in service, the Respondents upon receipt of his representation, sent two Senior Officials, namely - Shri Bapu S. Bhoir, Mail Overseer and Shri Indradeo P. Singh, Asstt. Superintendent of Post Offices, to Dahisar BO, on 16.02.2021 to take over charge from the Applicant. No formal order of suspension of the stop gap arrangement of the Applicant was issued to him. However, abusing their official powers, Shri Bapu Bhoir, Mail Overseer and Shri Indradeo P. Singh, Asst. Supdt. of Post Offices, without any written authorization forced the Applicant to handover charge of the Dahisar BO. After much insistence, the above-named officials recorded that charge is taken over from Mangesh R. Patil, Page 45 of 64 46 OA No.137/2021 Applicant. The documents taken-over from the Applicant pertain to the period 23.03.2017 to 16.02.2021 which is clearly indicated in the charge handover report. He submits that it is true that Smt. Manali S. Mata! has been regularly appointment as GDS BPM in Dahisar BO, however in accordance with the provisions of DG P&T Letter No. 19-34/99-ED&TRG dated 30.12.1999 the Applicant is entitled to be appointed at any Post Office or Branch Office where there is a vacancy.

3({k). The applicantre-iterates that he has been in continuous service in the post of GDS BPM since 23.03.2017 till 16.02.2021, without any breaks whatsoever. This is clearly indicated by the charge takeover report dated 23.03.2017 (Annexure A-4) and charge handover report dated 16.02.2021 [Annexure A-9(a)}. Further, Shri Bapu Bhoir, Mail Overseer and Indradeo P. Singh, Asst. Supdt. of Post Offices, upon much insistence of the Applicant made another note and handed over to the Applicant indicating that the payment of the Applicant working as Stop- Gap, Branch Post Master, Dahisar Branch Office is pending from 22.04.2017 to 16.02.2021. Therefore, at this stage, the Respondents cannot take a somersault and state that the Applicant stood terminated en Page 46 of 64 47 OA No.137/2021 w.e.f. 21.04.2017, while having extracted work from the Applicant until 16.02.2021, i.e., when the charge was officially taken over by the Respondents. The Applicant is, therefore, entitled for his dues for the period 22.04.2017 to 16.02.2021 and to be considered for regular appointment in accordance with the provisions of DG P&T Letter No. 19- 34/99-ED&TRG dated 30.12.1999.

5(I).The Applicant submits that the Hon'ble Central Administrative Tribunal, Ernakulam Bench in K. Sivakumar v. The Superintendent of Post Offices, South Postal Division, Thiruvananthapuram & Another in O.A No. 673 of 2010 dated 27.02.2012, citing the dictum of the Apex Court in Rudra Kumar Sain (Supra) held that the services rendered by the Applicant therein cannot be treated as "stop gap" and the Respondents therein were directed to keep the name of the applicant therein in the Live Register for accommodating the applicant against any vacancy in the near future, in accordance with his turn and subject to his fulfilling the other attendant conditions of appointment. Therefore, the Ernakulam Bench of this Tribunal has already considered the grant of regular appointment to a person initially appointed on stop gap basis as

Page 47 of 64 48 OA No.137/2021

per the provisions of DG P&T Letter No. 19-34/99-ED&TRG dated 30.12.1999, The contention of the Respondents that the Applicant was appointed on stop gap basis and, therefore, cannot be considered for regularization in accordance with DG P&T Letter No. 19-34/99-ED&TRG dated 30.12.1999 does not hold water.

6. Respondents have filed sur-rejoinder to rejoinder filed by the applicant on 05.07.2023 wherein it is submitted that the applicant in the present O.A. who happened to be working in the post of Gramin Dak Sevak Branch Postmaster in the office of the Respondent No.4 from 23.03.2017 up to 21.04.2017 on which day his engagement stood automatically terminated as per the letter dated 09/19.06.2017. The applicant claims to have continued in the said post despite there being no arrangement of engagement including letter of appointment in his favour and, therefore, the so called purported service rendered by the applicant post 21.04.2017 is clearly without any authority and thereby disentitling him to any benefit whatsoever post 21.04.2017. Whereas, the relevant Order No. A2/Engagement/ BPM/Dahisar BO/2017 dated 09/19.06.2017 marked as Annexure R-1, to show that the Appointment Page 48 of 64 ey) 49 OA No.137/2021 of the Applicant as BPM, Dahisar, B.O. had come to an end on 21.04.2017 itself.

6(a}. It is submitted by the respondents that the applicant was working in the post of Gramin Dak Sevak Branch Postmaster at Dahisar BO from 23.03.2017 upto 21.04.2017 on which day his engagement stood automatically terminated as per the letter dated 09/19.06.2017. As per report of Asstt. Supdt of Post Offices, Thane Sub Division dated 29.09.2021, memo of stop gap engagement (A2/Engagement /BPM/Dahisar BO/2017 dated 09/19.06.2017 was sent by Regd Post RM758936029IN addressed to the applicant through Thane RS PO on 20.06.2017. Registered article no.RM758936029iN was delivered on 22.06.2017 and now he is misleading the Tribunal.

6(b). The Applicant has received the stop gap order on 22.06.2017 and intentionally not returned the duplicate copy of order duly signed by 'him to the office of Respondent. Since stop gap arrangement was terminated on 21.04.2017 no separate order is required again for termination. So far as the payment of emoluments to the applicant is concerned, it would be appreciated that at Annexure 95 of the paper 7 Page 49 of 64 50 OA No.137/2021 book, the applicant himseif has produced acquaintance roll showing that he had collected TRCA to the tune of Rs.6,046/- for the period 1.4.2017 to 21.4.2017, the latter being the last date on which he was officially supposed to be in service. All rightful dues were i.e. for the period 23.03.2017 upto 21.04.2017 was already paid to him. The question of therefore paying him any emoluments post 21.04.2017 does not arise.

6(c). The respondents further submit that since stop gap arrangement was terminated on 21.04.2017 and has retained the post of BPM illegally without any written or oral order no payment was drawn. The respondents had to finally seek police help to force the Applicant to hand over charge as can be seen from letter dated 15.02.2021 written by the ASP to the DCP, Thane City, Zone- |, a copy whereof is enclosed as Annexure R-3. They submit that the inspection reports for the years 2017, 2018,2019 and 2020 were not officially handed over to the _applicants, however, by forcibly continuing to hold the charge despite the appointment of the applicant having to come an end. Also, in Inspection Reports, name of Applicant is mentioned as "Stop Gap/Substitute".

Page 50 of 64 51 OA No.137/2021

14.12.2017 | Asstt. Supdt. | Paral Para 2 In para 1 of of Post | (Pg. page 29 of the Offices No.29 of 0.A. date of visit OA) of ASP is mentioned i.e. 14.12.2017. In para 2 of page 29 of OA, Name of Applicant is mentioned = as Stop Gap 2018 27.11.2018, | Mail Overseer | Para 14 Para No. 14, it is 16.08.2018, (pg. 43 of mentioned that 18.06.2018 OA} MO has visited & the BO.

20.02.2018 05.12.2018 | Asstt. Supdt | Para 1 | Para 2 in para of page of Post | (pg. 42 of | (Pg.42) | 42 of OA date of Offices OA} visit of ASP is mentioned i.e. 05.12.2018. In para 2 of page 42 of OA, Name of the applicant is mentioned = as Stop Gap 2019 10.08.2019 | MailOverseer: Page 49 Para No. 1, it is & of the OA mentioned that 23.11.2019 MO has visited Page 51 of 64 52 OA No.137/2021 the BO 09.12.2019 | Asstt. Supdt.| Pg. 49 of | Para 16.1 | In page 49 of OA of Post | the OA (Page 53) | date of visit of Offices ASP is mentioned i.e. i.e. 09.12.2019.

In para 16.1 of page 49 of OA, name of applicant is mentioned as substitute i.e. stopgap 2020 03.12.2020 | Mail Overseer | Pg 66(a) In pg 66(a) of of OA OA, it is mentioned that MO nas visited the BO.

29.12.2020 | Asstt. Supdt. Para 15.1 | In para 15.1 pg of Post Pg. G6(R) | G6(f) of OA, Offices of OA name of applicant is mentioned as substitute i.e. stop gap.

6(d). The respondents submit that the applicants by virtue of being in the same village where Branch Office was located, continued to illegally function in the said office without due permission and obviously with connivance from the authorities in the office of Assistant Superintendent of Posts. The respondent, Union of india cannot be held Page 52 of 64 53 OA No.137/2021 responsible for paying dues to a person who is usurper of the office of GDS, BPM, Dahisar BO. Applicant claims that he was assured orally that his case is under consideration. Applicant is not having any documentary evidence to show that any assurance was given by respondent to him for considering his case. The Applicant is further seeking regularization in accordance with letter no. 43- 4/77-PEN dated 3012.1979 and 18.05.1979 which are further clarified by DGP&T letter no.19-34/99- ED&TRG dated 30.12.1999.

6(e). It is submitted that the applicant in the present O.A. who happened to be working in the post of Gramin Dak Sevak Branch Postmaster in the office of the Respondent No.4 from 23.03.2017 upto 21.04.2017 on which day his engagement stood automatically terminated as per the letter dated 09/19.06.2017. Applicant was not appointed as ED agent, hence condition of three years service is not applicable to the applicant. As Applicant was working as Stop Gap arrangement, this arrangement stood automatically terminated as per the letter dated 09/19.06.2017.

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6(f). It is submitted that the applicant says that as respondent have taken charge from the applicant upon appointment of regular GDS BPM, applicant has never had a claim for regularization against any of his previous engagement of stop gap arrangement which was for short duration. In this scenario also applicant was engaged in stop gap arrangements for the period 23.03.2017 up to 21.04.2017 and was terminated automatically on 21.04.2017. Applicant did not have any documentary evidence that respondent has extended any stop gap arrangement nor he asked for any clarification from respondent for extension of stop gap period. Stop gap arrangement was terminated on 21.04.2017.

6(g). There is no provision to ask applicant to continue the work. He did not appear before Sr. Supdt. Of post Thane Division. After this, applicant illegally retained the charge of BPM Dahisar BO. There is no communication by the applicant orally or written regarding issuance of the appointment order or any other arrangements as the applicant intentionally never communicated about the same as his was to claim his illegal expectations of continuation of employment. Since the \

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arrangement was already terminated on 21.04.2017, no question arises for again issuance of termination order.

6(h). It is submitted that the applicant received Stop gap wages for one month w.e-.f, 23.03.2017 to 21.04.2017 as his stop gap engagement was terminated on 21.04.2017. There is no provision to ask applicant to continue the work. He did not appear before Sr. Supdt. of post Thane Division. After this, applicant illegally retained the charge of BPM Dahisar BO. There is no communication by the applicant orally or written regarding issuance of the appointment order or any other arrangements. Applicant is not having any evidence that respondents has assured him for regularization. Clarification on Annual Reports has given in Para 3 above. It further states that regarding Inspection Reports 2017, 2018, 2019 and 2020, the respondent has given clarification in para 3 above. The respondents submit that the applicants by virtue of being in the same village where Branch Office was located, continued to illegally function in the said branch without due permission and obviously with connivance from the authorities in the office of Asst.

Superintendent of Posts. The respondent Union of India cannot be held Page 55 of 64 56 OA No.137/2021 responsible for paying dues to a person who is usurper of the office of GDS, BPM, Dahisar.

6(i). The respondents submits that the Applicant intentionally never requested for his stop gap wages in writing or orally during his engagement period as the applicant's intention was to wait for 'threeyears to file the complaint against the department. The work of GDS was only three hours in a day. It was confirmed by the applicant before handover the charge, he has sufficient source of income for living. There is no provision for drawing regular wages; moreover, he retained illegal charge of above post without any wages purposefully. He was well aware of process of drawing wages, i.e. it is necessary to submit charge report time to time but it seems that he did not need of wages, and he also knew that the same issue of retaining illegal charge will rise in future, hence, he did not submit any charge report or made any request for wages with concern authority. Reason given by him of COVID 19 Pandemic is an afterthought. As the applicant retained illegally charged of Dahisar BO, finally the respondents have no alternative but to take police help to take the charge from the applicant.

Page 56 of 64 SZ 57 OA No.137/2021

6(j). The respondents submit that D.G., P&T., Letter no.43-4/77-Pen., dated the 18" May, 1979 and Circular No.19-34/99- ED&Trg., dated the 30™December, 1999 (with respect to providing alternate appointment to such persons who have put in not less than 3 years of continuous service on provisional basis) is only related to provisionally selected candidates as Extra Departmental (ED) Agent and not for stop gap arrangements as the applicant was engaged on stop gap basis without observing due engagement process. Hence, the same order is not applicable in this case. The Applicant is not ED agent (Extra Departmental Agent). He simply works on stop gap basis. The provisional and stop gaps both are different. In this case Stop Gap is a temporary or a makeshift arrangement unless a more permanent solution is put in place. Provisional engagement Order is subject to pending verification of character and antecedent/caste certificate/educational qualification for Gramin Dak Sewaks who are selected on regular basis. As per report received from ASP,Baramati Sub Division, vide memo no.ASP{BMT)/Vfn of Document/MRP/21-22 dated at Baramati the 27.10.2021- Applicant passed 10™exam through distant Education not a regular education or : a Page 57 of 64 58 OA No.137/2021 admission. The Applicant not opted Marathi Language as his one of the subject in 10Standard, which is compulsory for the recruitment of GDS in Maharashtra, as well as distant learning is not considered for the recruitment of GDS. As such, the applicant neither possesses requisite qualification nor was selected through a regular engagement process. As such, the intention of applicant to secure backdoor entry is not legitimate and hence, the OA deserves to be dismissed.

6(k). The respondents submit that the applicant was working in the post of Gramin Dak Sevak Branch Postmaster at Dahisar BO from 23.03.2017 up to 21.04.2017 on which day his engagement stood automatically terminated as 09/19.06.2017. However, by forcibly Applicant continued to hold the charge per the letter dated despite the appointment of the applicant having to come to an end. The respondents had to finally seek police help to force the Applicant to hand over charge as can be seen from letter dated 15.02.2021 written by the ASP to the DCP, Thane City, Zone-l, a copy whereof is enclosed as Annexure R-3. Charge of Dahisar BO was taken by Mail Overseer on 16.02.2021, Charge report i.e. ACG 61 was duly signed by Applicant on 16.02.2021 in which applicant signed as Page 58 of 64 Sy 59 OA No.137/2021 "STOP GAP" (A-9{a)), as per departmental procedure. At that time, as guided by advocate of applicant, note was prepared, claiming payment of Stop Gap for the period from 22.04.2017 to 16.02.2021. {A-9-(b)). This is not an official document. As Applicant was not ready to hand over charge of Dahisar BO, Mail overseer and Asstt Supdt of Post Offices, Thane Sub Division was compelled to give note as suggested by Applicant.

6{i). It is submitted that the Applicant is further seeking regularization in accordance with letter no.43-4/77-PEN dated 3012.1979 and 18.05.1979 which is further clarified by DGP&T letter no.19-34/99- ED&TRG dated 30.12.1999. As mentioned in para 3 above, Applicant was not appointed as ED agent, hence condition of three years service is not applicable to the applicant. The Respondent relies upon the contention made in the above paragraphs of this reply. That in the referred judgment, the Hon'ble Apex Court has specifically mentioned that "subject to his fulfilling the other attendant conditions of appointment". The respondents, also, therefore relied upon this judgment and respectfully submits that the applicant does not possess Page 59 of 64 60 OA No.137/2021 requisite qualification prescribed in engagement rules of GDS i.e. 10" Standard pass and studied local language up to 10°Standard. On the contrary, the applicant has passed 10th Std. from distant education and not studied Marathi upto 10" Standard. Hence, in view of said judgment, the applicant is not eligible for regularization. Therefore, he submits that the application filed by the applicant is devoid of merit and deserves dismissal with costs.

7. Heard the learned counsel for the applicant and the learned counsel for the respondents and perused the pleadings and documents available on record.

8. It could be seen from the pleadings and oral arguments that the applicant was working in the post of Gramin Dak Sevak Branch Postmaster at Dahisar BO from 23.03.2017 up to 21.04.2017 under the stop gap arrangement. The Applicant is seeking regularization in accordance with letter no.43-4/77-PEN dated 3012.1979 and 18.05.1979 which is clarified by DGP&T letter no.19-34/99-ED&TRG dated 30.12.1999. It may be stated and made clear that the applicant was not appointed as ED agent, hence, condition of three years of service is not ° Page 60 of 64 ae ik Pod ey 61 OA No.137/2021 im applicable to the applicant. It could be seen that D.G., P&T., Letter no.43-4/77-Pen., dated the 18" May, 1979 and Circular No.19-34/99- ED&Trg., dated the 30December, 1999 provides for alternate appointment to the persons who have put in not less than 3 years of continuous service on provisional basis. Therefore, the aforementioned position relates to the provisionally selected candidates as Extra Departmental (ED) Agent and not those who are engaged under Stop Gap arrangements. As the applicant was engaged on stop gap basis without observing due engagement process, the above conditions are not applicable in his case. The Applicant is not Extra Departmental Agent ( now called GDS} as he has simply worked on stop gap basis. The 'Provisional Appointment' and 'Stop Gap' arrangements, both are different. Stop Gap is a temporary or a makeshift arrangement unless a more permanent solution is put in place. Provisional Engagement Order is subject to pending verification of character and antecedent/caste certificate/educational qualification for Gramin Dak Sewaks who are selected on regular basis. Respondents state that the Applicant neither possesses requisite qualification nor was selected through a regular Page 61 of 64 62 OA No.137/2021 engagement process. Therefore, not entitled to seek an alternative appointment. We agree to the pleadings of the respondents that effort of the applicant is to secure backdoor entry by filing this OA and the same are not considered legitimate. It is held that the applicant is not eligible for regularization. The engagement of applicant stood automatically terminated after initial period of Stop Gap arrangement ordered by the respondents. However, if the applicant continued to hold charge and perform work, it is his fault as well as fault of respondent authorities. The respondents are getting up from deep slumber after | long time and finally seek intervention of police to take charge of Branch Post Office from the applicant and complete handing over process as could be seen from letter dated 15.02.2021 written by the Assistant | Supdt. Post Offices to the Deputy Commissioner of Police, Thane City. Respondents have stated in their pleadings that even the Charge Report signed by the applicant while handing over charge is in the capacity of a 'Stop Gap' Gramin Dak Sewak as per procedure laid down by the Department of Posts. This shows that the applicant continued to work under stop gap arrangement till 16.02.2021. These facts could be easily Page 62 of 64 63 OA No.137/2021 verified by the respondents from the record of Branch Post Office and Daily Account being send by Branch Office to its Account Office which generally is a Departmental Sub Post Office. If it is found that the applicant has worked till 16.02.2021 then the applicant is entitled to the stipulated remuneration for the relevant period.

9. In view of above, the Original Application is partially allowed with the following orders: -

(a) As the applicant was engaged under the 'Stop Gap' arrangement, he is not entitled to seek alternate employmenton the basis of his services rendered by him and as claimed by him in this Original Application.

(b). If the applicant has worked as GDS Branch Post Master under Stop Gap arrangements till 16.02.2021 and he has not been paid remuneration for the certain period, the applicant's monthly wages shall be paid to him for the relevant period within 08 weeks from the date of certified copy of this order with interest as applicable on the GPF.

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(c) Acost of Rs. 10,000/- (Rs. Ten thousand only) is imposed upon respondent No. 4 (on those who has/have held the charge of Sr. Supdt. Post Office, Thane Division, during the period from 23.03.2017 to 16.02.2021 excluding the period of initial stop gap arrangements} for gross negligence, lack-luster and unprofessional work allowing such precarious situation to prevail for a long period of time in his Divisional jurisdiction. The amount of cost should be deposited into the account of CAT Bar Association, Mumbai Bench Account at Mumbai.

(d) Pending MA, if any, stand disposed.

(RAJINDER KASHYAP) (R.N.SINGH) MEMBER (A) MEMBER (J) kmg* Page 64 of 64

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