Central Administrative Tribunal - Ernakulam
C.Usha vs The Superintendent Of Post Offices on 3 July, 2015
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Applicaton No.865/2013
Friday this the 3rd day of July 2015
CORAM:
HON'BLE Mr.U.SARATHCHANDRAN, JUDICIAL MEMBER
HON'BLE Mrs.P.GOPINATH, ADMINISTRATIVE MEMBER
C.Usha,
Contingent Employee, Perumpazhuthoor P.O.
Residing at Azhakuthottam Roadarikathu Veedu,
Perumpazhuthoor P.O., Thiruvananthapuram 695 126. Applicant
(By Advocate Mr.Vishnu S Chempazhanthiyil)
Versus
1. The Superintendent of Post Offices,
Thiruvananthapuram South Postal Division,
Thiruvananthapuram 695 036.
2. Union of India
represented by the Chief Postmaster General,
Kerala Circle, Thiruvananthapuram 695 033.
3. Inspector Posts, Neyyattinkara,
Thiruvananthapuram South Postal Division,
Thiruvananthapuram 695 121. Respondents
(By Advocate Mr.Thomas Mathew Nellimoottil,Sr.PCGC)
This application having been heard on 16 th June 2015 this Tribunal on
3rd July 2015 delivered the following :
ORDER
HON'BLE Mrs.P.GOPINATH, ADMINISTRATIVE MEMBER The applicant is working since 1991 as a part-time contingent employee. According to her, she has worked for more than 240 days in a year. She claims preference as provided for in DG Posts letter No.17- 141/88-EDC & Training (Annexure A-1) dated 6.6.1988. She apprehends that respondents are going for direct recruitment from open market without considering the preferential claim of the applicant. The only reason why the applicant is denied the benefit of Annexure A-1 is that she has not been sponsored by Employment Exchange whereas a part-time contingent employee is entitled to preference in the matter of GDS Post as per Annexure A-1. In the decision C.C.Sasikala v. The Assistant Superintendent of Post Offices, Kochi & Others reported in (2000) 1 ATJ 63 this Tribunal has held that part-time contingent employees/full time contingent employees as a class has preference in recruitment to ED posts. Applicant also refers to this Tribunal's order in O.A.No.534/2003 in respect of a similarly situated person that recruitment from open market should be resorted to only after part-time contingent employees are found ineligible and unsuitable for appointment. In O.A.No.571/2001 filed by a part time contingent employee claiming preference over candidates from open market, it was held that part-time contingent employees are entitled to the benefits of DG Posts letter dated 6.6.1988 and 17.5.1989 (Annexure A-12) and only if they are found unsuitable will open market recruitment be resorted to. When a vacancy of GDSMP Perumpazhuthoor P.O arose, applicant represented to consider her by extending benefit of DG Posts letter dated 6.6.1988 (Annexure A-1). A reminder was also submitted. Aggrieved by the inaction on the part of the respondents, the applicant has approached this Tribunal seeking the following reliefs :
1. Direct the respondents to consider the applicant for appointment to the post of GDS Mail Packer Perumpazhuthoor P.O in preference to open market candidates.
2. Declare that the applicant is entitled to the benefit of Annexure A-1 and direct the respondents to take action accordingly.
3. Direct the 1st respondent to consider and pass orders on Annexure A-6 and A-7 representations in the light of A-2, A-3, A-4, A-5, A-8 and A9.
4. Declare that the action on the part of respondents 1 & 3 directing to disengage the applicant without any notice is illegal and arbitrary and direct the respondents 1 & 3 to continue the engagement of the applicant as in the past.
5. Any other further relief or order as this Hon'ble Tribunal may deem fit and proper to meet the ends of justice.
6. Award the cost of these proceedings.
2. The respondents in their reply state that the post of GDSMP, Erumpazhuthoor P.O became vacant with effect from 12.5.2013 consequent upon the discharge of the incumbent. Applicant is projecting an image that she has been engaged as a casual labourer by the department for the last 22 years and hence entitled to get the benefits of Annexure A-1. The applicant has not produced any order issued by the competent authority appointing her as a part time casual labourer in the Department. She is only an outsider engaged to sweep the Perumpazhuthoor Post Office and such outsiders engaged intermittently cannot claim any regular appointment. This view has been upheld by this Tribunal in O.A.No.398/2010 wherein the Tribunal held that since the applicant has worked intermittently only as a substitute of the regular incumbent, she has no legal right to claim the benefit of DG Posts letter dated 6.6.1988. Applicant's claim that she has been working as a part time casual labourer since 1991 is not substantiated by any evidence.
3. Heard both sides. Perused the cases cited by the parties.
4. Hon'ble Supreme Court in Secretary, State of Karnataka v.
Uma Devi (2006) 4 SCC 44 has laid down the law regarding the temporary employees who are engaged for short spells without following any due process of selection. In the said judgment, the Hon'ble Apex Court has held that '. . . . . .adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. . . . . . . '
5. The judgments cited on behalf of the applicant would have no application after the law was laid down by the Constitution Bench in the case of Umadevi (supra) because grant of prayer of the applicant would be grant of public employment in violation of ratio of Umadevi (supra). Applicant has in support of his arguments cited this Tribunal's orders in O.A.No.534/2003, O.A.No.571/2001, O.A.No.3/2005, O.A.No.109/2010, O.A.Nos.785/2011 & 733/2011 and W.P.C.No.33732/2005 wherein the benefit of working as a part time casual labourer for a long period was cited as a cause for offering appointment as Extra Department Agents on the basis of Annexure A-1 D.G.Posts letter dated 6.6.1988 wherein preference was given to casual labourers in the matter of appointment as ED Agents. The Hon'ble High Court of Kerala in W.P.C.No.5719/2008 upheld a similar order of this Tribunal in O.A.No.300/2005.
6. Respondents in support of their contentions cited Annexure R-1 DG Posts letter No.45-95/87-SPB-I dated 15.5.1988 wherein the engagement of casual labour is to be made only for work of an occassional nature. Regular and daily employment of casual labour either whole time or part time tantamounts to violation of the ban on creation of posts. No new casual labour should be engaged for work of regular nature. If engagement of regular casual labour is inescapable, it should have the prior approval of Postmaster General and the Internal Financial Advisor. Respondent has also cited O.A.No.398/2010 wherein intermittent working as a substitute of a regular incumbent did not provide a legal right to the benefits of DG Posts letter of 6.6.1988 (Annexure A-1). Applicant is an outsider engaged to sweep Perumpazhuthoor Post Office and has not produced any attendance records or paid vouchers in support of his engagement. Applicant has only relied on past judgments of this Tribunal in support of his case without adducing to any documents supporting his engagement or even proof of his engagement in the form of payment vouchers or attendance register entries. The Applicant's M.A for directing the Respondent No.1 to produce ACG 17 vouchers for the last 22 years in respect of the applicant, learned counsel for the respondent at the time of arguments submitted that those records have been destroyed as per extant instructions on destruction of records.
7. We are of the opinion that there is a need for the respondents to examine the amendment of DG Posts letter of 6.6.1988 and 17.5.1989 in the light of Supreme Court judgment in the case of Secretary, State of Karnataka v. Uma Devi or take a conscious realistic decision that despite Uma Devi's judgment the nature of work in Post Offices is such that engagement of some part time casual labourers is essential to run its operations. Any departure from law as laid down in Uma Devi judgment is not acceptable.
8. The O.A and M.A.No.180/00986/2014 is, therefore, dismissed. No order as to costs.
(Dated this the 3rd day of July 2015)
P.GOPINATH U.SARATHCHANDRAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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