Central Administrative Tribunal - Ernakulam
Madana Mohana Rajan P vs The Chief Postmaster General on 10 July, 2015
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Applicaton No.1036/2012
Friday this the 10th day of July 2015
CORAM:
HON'BLE Mr.U.SARATHCHANDRAN, JUDICIAL MEMBER
HON'BLE Mrs.P.GOPINATH, ADMINISTRATIVE MEMBER
Madana Mohana Rajan P.,
S/o.P.Madhavan,
Lelalayam, P.O.Beypore,
Kozhikode 673 015. Applicant
(By Advocate Mr.B.Harish Kumar)
Versus
1. The Chief Postmaster General,
Kerala Circle, Thiruvananthapuram 695 033.
2. The Senior Superintendent of Post,
Postal Department,
Kozhikode 673 020.
3. The Assistant Superintendent of Post,
Postal Department,
South Sub-Division,
Kozhikode 673 020.
4. Karun Lal,
S/o.Premlal,
Shethekudam House,
Kottali P.O., Merikunnu 673 012. Respondents
(By Advocates Mrs.Mini.R.Menon,ACGSC [R1-3] & Mr.K.Jaju Babu [R4])
This application having been heard on 16th June 2015 this Tribunal on
10th July 2015 delivered the following :
ORDER
HON'BLE Mrs.P.GOPINATH, ADMINISTRATIVE MEMBER Aggrieved by the denial of appointment in the existing vacancy of GDSMD under the Respondent No.3 applicant preferred Original Application. The applicant was initially engaged as an outsider/casual worker against the post of Gramin Dak Sevak Mail Deliverer (GDSMD) in the year 2009. He was engaged as a substitute by one Varijakshan.P., GDSMD, North Beypore Post Office, Kozhikode. Thereafter he had worked in different spells as substitute and outsider from 2009 onwards in Azhihilam Post Office, Kozhikode. While working as substitute he completed 240 days in a year. The applicant therefore contends that he is entitled to be considered with preference for the post of Gramin Dak Sevak Mail Deliverer in view of past engagements. The Respondent No.3 had issued a notification calling application for the said post and applicant had submitted performa application within the stipulated time. Applicant claims as per Annexure A-1 and A-2 circulars he should be given preference for consideration in the above post. But the Respondent No.3 initiated steps to make appointment to persons not having any experience. So he submitted Annexure A-3 representation which is pending consideration. Paragraph 4 of Annexure A-1 D.G Posts letter dated 6.6.1988 reiterates that casual labourers whether full time or part time who are willing to be appointed to ED vacancies may be given preference in the matter of recruitment to ED post provided they fulfill all the conditions and have put in a minimum of one year service. The Directorate's DO letter dated 27.1.1992 states that those part time casual labourers who are engaged only for a few days in a month and whose monthly wages are less than those of other regular part time contingent staff like sweepers etc. can be preferred for appointment as part time contingent employees whenever vacancy occurs. Aggrieved the applicant filed this O.A seeking the following reliefs :
1. To call for the records leading to the selection and appointment to the post of GDSMD and set aside the same in so far as it denies the appointment of the applicant as GDSMD.
2. To declare that the applicant is eligible and legally entitled to be appointed to the existing vacancy of GDSMD under the third respondent's office giving preference to him on the basis of his service put in as substitute/outsider in terms of Annexure A-1 and A-2.
3. To direct the second and third respondent to make appointment to the existing vacancy of GDSMD under the third respondent office by appointing the applicant as GDSMD.
4. To direct the third respondent to consider and dispose of Annexure A-3 representation in accordance with law.
5. Any other appropriate order or direction as this Hon'ble Tribunal deem fit in the interest of justice.
2. Respondents in their reply statement state that the post of Gramin Dak Sevak Mail Deliverer (GDSMD) of Beypore North Post Office became vacant with effect from 14.9.2012 consequent on the transfer of Shri.P.Varijakshan as GDSMP, Tiruvannur Nada PO. Notification for filling up the post was issued on 17.9.2012. The applicant had worked as a substitute for Shri.Anilkumar, GDSMD, Azhinhilam PO who was on Leave for a period from 1.5.2009 to 31.7.2009 (3 months). Applicant had also worked as a substitute in the post of GDSMD, Beypore North PO during the period from 23.5.2012 to 21.6.2012 and for some short periods when the incumbent was on leave. He was also engaged as GDSMD, Beypore North PO purely on temporary basis, as a stop gap arrangement with effect from 14.9.2012. In response to the vacancy notification, the applicant had also submitted an application for the post of GDSMD, Beypore North. The application received from the applicant was also considered along with other applications. Out of the 38 applicants, ten candidates who have secured top marks in SSLC ranging between 51.5% and 78% were shortlisted for verification of documents. The applicant stood at the 30 th position in this merit list as he had obtained only 35.17% marks in the SSLC examination. Merit in the SSLC examination is the criterion for selection, if other conditions are satisfied. As per existing instructions, no weightage is to be given for previous experience in the post. The engagement of GDS is unique to Postal Department and they are engaged on terms and conditions which are significantly different from that of regular employees. Whenever a GDS proceeds on leave, the GDS himself offers his substitute, subject to the satisfaction of the leave sanctioning authority. When a GDS posts fall vacant, stop gap arrangements on purely adhoc basis are made till the regular appointments are made as per Recruitment Rules. The averments of the applicant that he had completed 240 days as a substitute and he is entitled to the post of GDS MD are not supported by Government of India orders. The applicant is not a casual labourer as specified in Annexure A-1 but has worked as a substitute in leave arrangement in the posts of GDSMD, Azhinhilam PO and GDSMD, Beypore North PO during the periods from 1.5.2009 to 31.7.2009 and from 23.5.2012 to 21.6.2012 and also for some short periods at Beypore North when the regular GD Sevaks had proceeded on leave. The applicant had worked only for 92 days continously in the year 2009.
3. In reply to the M.A.No.125/2013 respondent states that no orders of appointment or termination is issued for outsiders provided by incumbent and engaged on stop gap arrangements. The Respondent No.4 applied for the post of GDSMD, Beypore North and his application was considered on merit with other applicants. The candidate who obtained the highest marks in the SSLC examination was Smt.Remya KK with 78% marks but she did not present herself for the document verification conducted on 20.12.2012. The Respondent No.4 with 75.26% marks who ranked second was selected for the post. On 25.12.2012 consequent on the stay in O.A.No.149/2012 filed by Shri.Kailasan, the issue of appointment order of Respondent No.4 was deferred. Respondent No.4 had worked in Beypore North Post Office on temporary arrangement for a brief period from 16.1.2013 to 31.1.2013 and from 1.3.2013 to 20.3.2013. As the appointment for the post of GDSMD Beypore North was deferred the Respondent No.4 the most eligible candidate as per merit on the basis of the marks obtained in the SSLC exam was selected and engaged on temporary basis pending final decision in O.A.No.149/2012. Respondent No.4 had informed on 14.3.2013 in writing that he is not interested in continuing as GDSMD Beypore North. Shri.Abdul Jamal the next candidate in the list was appointed provisionally as GDSMD Beypore North subject to the outcome of the present O.A. Employment status of the father of Respondent No.4 has in no way affected the selection process which is based on merit. Also Respondent No.4 had declined the offer of appointment and left the post.
4. The applicant has filed M.A.180/01369/2014 seeking a direction to the respondents to permit him to continue his work as substitute in Beypore Sub Post Office and for a direction to produce his original attendance register for the year 2009 to 2014.
5. Respondents in reply to M.A.No.180/01369/2014 refutes the contention of the applicant. Shri.Sivadasan, Postman, Beypore reported sick and proceeded on leave suddenly and the applicant had worked in the leave vacancy of Shri.Sivadasan from 1.9.2014 to 31.10.2014. The applicant had neither signed in the attendance register nor was his name erased/changed in the attendance register during the period 1.9.2014 to 1.12.2014. Sub Postmaster, Beypore informed the applicant that he is changing the substitute worker as an outsider should not be engaged for a prolonged period. But the applicant suggested that he is ready to work in the leave vacancy in a different name. The SPM, Beypore accepted the suggestion and allowed applicant to work in the name of Mohanan from 1.11.2014 to 1.12.2014. The department is often facing problems in finding a substitute to manage the leave vacancy of Postman/Multitasking Staff as all the leave reserve posts are vacant now. But the applicant did not turn up for duty from 3.12.2014. So no body was engaged in that post from 3.12.2014 to 7.12.2014. From 8.12.2014 onwards Shri.Unnikrishnan, GDSMD, Beypore North is working in the place of Shri.Sivadasan. The applicant had worked only for 92 days continuously in the year 2009. He had worked as a substitute in the posts of GDSMD, Azhinhilam PO and GDSMD Beypore North PO during the periods from 1.5.2009 to 31.7.2009 and from 23.5.2012 to 21.6.2012 and also for some short periods when the regular Gramin Dak Sevaks had proceeded on leave. During the said leave periods he had worked as the substitute nominated by the regular Gramin Dak Sevaks. He was engaged as GDSMD, Beypore North PO purely on a temporary basis, as part of a stop gap arrangement with effect from 14.9.2012.
6. The applicant has filed another M.A.No.180/00079/2014. The applicant's contention in the M.A that he had worked for more than 240 days in the year 2009 could not be verified as he could not produce any records to substantiate the same.
7. The respondents in their reply to M.A.No.180/00079/2015 state that the BO Journals up to 21.7.2011 were weeded out on 9.9.2014 as per the orders of the Senior Superintendent of Post Offices vide Order No.L/Action Plan/2014 dated 14.8.2014. Hence the Annexures produced by the applicant could not be verified with Azhinjilam Post Office records. On verification of the Pay Bill 7 and Acquittance Roll available at Calicut HO the applicant had worked as GDSMD Azhinjilam from 1.5.2009 to 31.7.2009. But from 1.8.2009 to 30.9.2009 Shri.Tharun NC had worked in the place of GDSMD Azhinjilam. From 1.10.2009 to 31.1.2010 Shri.Vijayanandan K had worked in the place of GDSMD Azhinjilam.
From 1.2.2010 to 28.2.2010 Smt.Soudamini had worked in the place of GDSMD Azhinjilam. As per the records of Calicut Head Office, the applicant had not worked as GDSMD Azhinjilam in the dates for which copy of the Branch Office Journal is produced. As per the Bill 7 and Acquittance Roll of Calicut HO for the year 2009 and 2010 the applicant had not worked at Beypore North in the place of any GDS. As per the Bill 7 and Acquittance Roll of Calicut HO in the year 2010 Smt.Usha N had worked in the place of Shri.Varijakshan, GDSMD II Beypore North. The applicant had not worked in the place of any other GDSs at Beypore North PO in 2010. Pay bill for disbursement of allowance is a vital document maintained and kept at Head Post Office as proof for engaging a person for work in the HO and Branch Office.
8. Heard counsel for applicant and respondents and perused the reply and miscellaneous applications and counter submitted. Applicant has cited W.P.C.No.2473/2007 in support of his contention. In the said judgment the Hon'ble High Court has stated that when in the necessities of work, persons are engaged occassionally, they are casual workers unless they are engaged as permanent or temporary workers. But the Court has emphasised on the condition of working for 240 days in a year, which condition is not fulfilled by the applicant. The respondent cites that applicant has worked for 92 days continuously in the year 2009. Hence he does not fulfill the condition of qualifying man days for recruitment. Further the GDS Recruitment Rules clearly cites marks in the SSLC exam as the sole qualifying criteria for recruitment. Since there is only one qualifying criteria, setting aside or by passing the same is not in order, particularly in view of the fact that the applicant has not produced any concrete evidence of engagement by respondent for 240 or more days. The applicant had accepted his engagement for whatever limited time period knowing the nature of engagement and the consequences flowing from it. It rests on the applicant to produce proof of his engagement in support of his claim for relief. As per facts brought out in arguments and written submission, the claim acquired by him in his temporary engagement cannot be considered to be of such a magnitude as to enable the by passing of established procedure for making regular appointment. His legitimate expectation cannot jettison the procedure established by law.
9. The O.A is, therefore, dismissed.
(Dated this the 10th day of July 2015)
P.GOPINATH U.SARATHCHANDRAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp