Central Administrative Tribunal - Ernakulam
Subhash Babu K vs Union Of India on 4 February, 2016
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Applicaton No.1208/2013
Thursday this the 4th day of February 2016
CORAM:
HON'BLE Mr.U.SARATHCHANDRAN, JUDICIAL MEMBER
HON'BLE Mrs.P.GOPINATH, ADMINISTRATIVE MEMBER
1. Subhash Babu K.,
S/o.Kunhiraman,
Gramin Dak Sevak Mail Man,
Sub Record Office, Thalassery.
Residing at Puthiyandi House,
Kavumbhagom, Thalassery - 670 101.
2. Narayanan N,
S/o.Velukutty Nair,
Gramin Dak Sevak Mail Man,
Sub Record Office, Vatakara.
Residing at Naduvathana House,
Perumanna P.O., Pulikkal Thayam - 673 019. . . . . Applicants
(By Advocate Mrs.R.Jagada Bai)
Versus
1. Union of India
represented by the Secretary to Department of Posts,
New Delhi - 110 001.
2. The Chief Post Master General,
Kerala Circle, Trivandrum - 695 033.
3. The Post Master General,
Northern Region, Kerala Circle,
Kozhikode - 673 011.
4. The Superintendent RMS 'CT' Division,
Calicut. . . . . Respondents
(By Advocate Mr.Sinu G Nath,ACGSC)
This application having been heard on 8th January 2016 this Tribunal
on 4th February 2016 delivered the following :
ORDER
HON'BLE Mrs.P.GOPINATH, ADMINISTRATIVE MEMBER The applicant No.1 & 2 were appointed as Extra Departmental Mail Man in RMS 'CT' Division. Through Annexure A-4 order the Gramin Dak Sevaks junior to the applicants were promoted to the cadre of Multi Tasking Staff by the respondent No.4 overlooking their seniority. It is submitted that the candidates who appear at Sl.No.3 to 6 of Annexure A-4 are junior to the applicant No.1 and those who appear at Sl.No.5 and 6 are junior to the applicant No.2. The applicants sought information from the Respondent No.4 under RTI Act, 2005 regarding the vacancy position in the cadre of Multi Tasking Staff in RMS 'CT' Division from 2005 to 2011 and the reason for their non promotion at par with their juniors. The reason put forward by the Respondent No.4 for not offering promotion to the applicants at par with their juniors was that they have crossed the age of 50 years as on 1.1.2011 and 1.1.2012. The applicants submit that Shri.K.P.Dineshan, the candidate figuring at Sl.No.4 of Annexure A-4 with date of birth 15.7.1958 (Sl.No.13 in the Divisional Seniority List - Annexure A-3) had also crossed the age of 50 years as on 1.1.2011 and 1.1.2012. Hence the reason put forward by the Respondent No.4 for not offering promotion to the applicants under seniority quota at par with their juniors in Annexure A-4 fails to stand. Reply to RI and Annexure A-9 order in O.A.No.393/2009 would show that a large number of vacancies in the cadre of Group D/Multi Tasking Staff remained unfilled in RMS 'CT' Division Calicut from the recruitment year 2005 to 2011. The reason put forward for not filling up the available vacancies as shown at Sl.No.4 of Annexure A-8 and Annexure A-9 is based on the directions from higher authorities. Through the orders in Annexure A-9, A-10 and A-11, this Tribunal as well as the Hon'ble High Court of Kerala had made it clear that the Group D posts earmarked for Extra Departmental/GDS promotion seniority quota will fall outside the ambit of the direct recruitment and hence no nod of the Screening Committee is required for filling up the posts. Relief sought by the applicants is to declare that they are eligible to be promoted to the cadre of Group D/Multi Tasking Staff in their turn against the vacancies under seniority quota from 2005 to 2011 in their turn irrespective of their crossing the age of 50 years with all consequential benefits.
2. Respondents in the reply statement submit that the applicants were appointed as Extra Departmental Mail Man (now Gramin Dak Sevak) in RMS CT Division with effect from 8.11.1993 and 13.12.1993. As per the divisional level seniority list of Gramin Dak Sevaks Mail Man of RMS CT Division corrected up to 1.6.2011 the applicant No.1 is at Sl.No.11 and 2 nd applicant at Sl.No.17. As per the MTS Recruitment Rules 2010, 25% of the vacancies of a particular year has to be filled from GDS of the Division on the basis of selection cum seniority. 6 vacancies (OBC-3, UR-3) of the year 2011 were approved for filling up under 25% GDS selection-cum-seniority quota for which Departmental Selection Committee (DSC) was convened at RO on 10.4.2013. As per the MTS recruitment rules only those GDS who have not crossed the age of 50 years as on 1st January of the year of vacancy can be considered for recruitment to the cadre of MTS. The applicants were considered in the DSC held on 10.4.2013 for filling up vacancies of 2011. There were 5 GDS senior to applicant No.1 to be considered against the above 6 vacancies of the year 2011 starting from Sl.No.4. Out of this 3 GDS had crossed the age of 50 years as on 1.1.2011 three years prior to filing of O.A. Hence 2 GDS senior to the applicant No.1 were selected for appointment as MTS against 2 UR vacancy. The date of birth of applicant No.1 is 28.11.1956 and hence he had crossed the age of 50 years in 2006 itself and as such he was not eligible to be considered for appointment against the above vacancies. The 3rd UR vacancy was filled by appointing the GDS at Sl.No.15 of the GDS seniority list as the candidates from Sl.No.10 to 14 were over aged as per recruitment rules for being considered against UR vacancy. The remaining 3 OBC vacancies were filled up from the eligible OBC candidates ie. the GDS at Sl.No.13, 20 and 21. The date of birth of the GDS at Sl.No.13 in the gradation list, namely, Shri.KP Dineshan referred by applicant is 15.7.1958 and as he is an OBC candidate, he was given age relaxation of 3 years and thus was eligible to be considered against the 1st OBC vacancy of the year 2011 since he had not crossed the age limit of 53 years as on 1.1.2011. The next two eligible candidates to be considered against the 2 OBC vacancies are at Sl.Nos.20 & 21 of the gradation list as the GDS candidates from Sl.Nos.16 to 19 of the gradation list were not eligible to be considered against the remaining 2 OBC vacancies as they had crossed the age limit. As such both UR and OBC candidates were selected as per the age limit rule and no discrimination was shown. Applicant No.2 ranks at Sl.No.17 in the gradation list and he belongs to UR category. Hence, he was not eligible to be considered against the OBC vacancies and moreover, he had already crossed the age of 50 years in 2009 itself three years before filing O.A as his date of birth is 5.10.1959. It is submitted that the age limit for appointment of GDS was 50 years as per MTS Recruitment Rules, 2010. The respondents have acted as per provisions of recruitment rules. Hence, the averment has been denied that the Superintendent had overlooked the seniority of the applicants.
3. In the additional reply statement the respondents contend that the applicants were out of the zone of consideration while considering the vacancy for the year 2005. Department Promotion Committee was held on 15.11.2006 in which ten senior most GDSMM were considered for the post and Sri.K.Vijayakumar, the eligible senior most GDSMM was recommended for appointment. All the available vacancies to Group D were filled up treating the same as under promotion quota as per judgment in O.A.No.312/2008 and connected cases and vide order in CP No.95/2009. In connection with the implementation of the Tribunal's order in O.A.No.312/2008 and 36 others cases, Departmental Promotion Committee met on 16.7.2010 to consider the promotion of Gramin Dak Sevaks to the cadre of Group D for the vacancies which arose in the year 2006, 2007 and 2008. All the available vacancies were filled up as per seniority of the GDS in respect of RMS CT Division. The categorized vacancy position under GDS quota for the relevant period is furnished below.
Year UR ST Total
2006 4 3 7
2007 4 4 8
2008 4 2 6
It is submitted that following the provision of recruitment rules no junior to the applicants were promoted in RMS CT Division in unreserved category or otherwise during the process of promotion made pursuant to judgment in O.A.No.312/2008 and connected cases.
4. The applicant bases his argument on two documents ie. Annexure A-6 RTI reply and Annexure A-9 order in O.A.No.393/2009. In Annexure A-6 RTI reply to query No.4 ie. total number of vacant posts of MM/MTS in RMS CT Division during the years 2005 to 2011 yearwise, applicant was informed that there were :
Year Vacancy 2006 9 2007 10 2008 8 2009 11 2010 17 2011 12 The respondents further inform that out of the above 75 vacancies which arose from 2005 to 2011 only 10 ST vacancies are remaining to be filled as on date. The above RTI query and reply does not assist the case of the applicant as recruitment to MTS is made from GDS and from casual labourers. The above indicated vacancies in RTI reply cannot be filled in a vaccum as asserted by applicant on the basis of Annexure A-6 document but have to be filled as per reservation roster prescribed for SC, ST, OBC and UR. Further the applicant in the RTI query did not ask for a break up on the ground of how many of the above vacancies were reserved for GDS as per Recruitment Rules, how many were reserved for casual labour and how many were further reserved for categories under the reservation roster. Hence the above RTI reply cannot be relied on to reflect the correct category and roster wise vacancy position.
5. The second document relied on by the applicant is Annexure A-9 judgment. Annexure A-9 judgment referred by applicant relates to a case of appointment against vacancies which arose before 2010 where Recruitment Rules 2002 were applicable. In this O.A applicant challenges the filling up of vacancies after 2010, when new Recruitment Rules 2010 is applicable. The respondents in their reply statement brings out that the 2010 Recruitment Rules, post VI th CPC recommendations, made recruitment to cadre of MTS direct recruitment and consequent 27% reservation of vacancies had to be made for OBC candidates. There was no OBC reservation when the GDS to Group D (designation prior to VI th CPC) was treated as 'promotion' by this Tribunal. As per new Recruitment Rules, recruitment to MTS is direct recruitment and as per 27% OBC quota 3 MTS vacancies were reserved for OBC. Hence GDS at Sl.No.13 of Annexure A-3 who was junior to applicant No.1 and GDS at Sl.Nos.20 and 21 of the same Annexure who were junior to both applicants got appointment despite their juniority to applicants. Further K.P.Dineshan figuring at Sl.No.4 of Annexure A-4 being an OBC candidate was given mandatory age relaxation of 3 years. Applicant No.1 who was also an OBC candidate had reached the age of 53 years and had therefore crossed the age limit after application of age relaxation. The applicant No.2 was also similarly overaged.
6. Appointment for the vacancies from 2002 to 2009 were made by the respondents as per orders of this Tribunal in O.A.No.312/2008 and other cases. As a matter of fact the issue of non filling up of these vacancies in full under promotion quota was considered by the Tribunal in C.P.No.95/2009 in O.A.No.312/2008. The respondents in their reply in C.P.No.95/2009 had stated as per order of Tribunal in O.A.No.312/2008 appointments to Group D was treated as promotion and not direct recruitment and appointments were made strictly according to seniority of the GDS/Casual Labour concerned as per year wise vacancies. The appointments were made retrospectively from the date of occurrence of vacancies in the year 2002 to 2008, and were given notionally from the said date. Hence the issue of implementation of the common order in O.A.No.312/2008 and connected cases is no more res- integra as this Tribunal had accepted the action of the respondents in the series of Contempt Petition filed by applicants covered by that order and closed all CPCs vide order dated 29.7.2011. This being so, the applicants would be estopped from re-opening this settled position again at this point of time.
7. The Tribunal took note of the fact that as a part of implementating the common order in O.A.No.312/2008 and similar cases, as a one time measure, an elaborate mechanism was put in place to scrutinize and monitor all related documents and facts, cross tally the number of vacancies from the date of their occurrence, the number of vacancies arising for filling as per the optimization scheme, the total sanctioned strength of Group D in each Division and the actual number of persons in position. After tallying the figures from 2002 to 2008 on the basis of the above data, revised rosters were prepared, list of eligible persons identified in each Division, and appointments made to Group D from the date of occurrence of vacancy strictly according to seniority, as a one time measure in compliance with the orders of this Tribunal in O.A.No.312/2008 and connected cases. A total of 327 posts were initially identified to be filled across the Circle for the period 2002 to 2008. Subsequently as per specific order of this Tribunal, over and above these 327 posts, 97 more posts which arose in year 2009 were also identified and filled up, taking the total vacancies identified to be filled up across the Circle to 424. As on date of Contempt Petition out of 427 posts, a total of 377 posts had been filled up from among eligible GDS/Casual Labour as per seniority. The respondents in their reply statement also contend that out of the vacancies which arose from 2005 to 2011, only 2 ST vacancies are remaining to be filled as on date. The applicants in this O.A have ignored the claims of casual labour and reservation while presenting their case before this Tribunal.
8. In view of above facts, the Tribunal closed the Contempt Petition. This would also cover all similar cases which were agitated in the High Court on the same matter and covers Annexure MA-1 produced by the applicants. Hence, re-agitation of the same matter at this stage after closure of Contempt Petition filed for non-implementation of this Tribunal's order in O.A.No.312/2008 and connected matters is legally not tenable. According to the Department of Posts (Multi Tasking Staff) (Amendment) Recruitment Rules 2012 the method of recruitment to the cadre of MTS is :
(a) 25% by direct recruitment from amongst GDS of recruiting Division or unit on the basis of selection-cum-seniority failing which by
(b) Direct recruitment from amongst GDS of neighbouring divisions, or units, on the basis of selection cum seniority failing which by
(c) Direct recruitment from open quota.
(i) 25% by direct recruitment on the basis of Competitive Examination restricted to the GDS of the division or unit
(ii)
(a) 25% by appointment of Casual Labourers conferred with Temporary Status on the basis of selection cum seniority failing which
(b) By appointment of casual labourers engaged on or before 1 st September 1993, working for eight full hours in a day on the basis of selection cum seniority failing which
(c) By appointment of casual labourers conferred with temporary status in the neighbouring division or unit on the basis of selection cum seniority failing which
(d) By appointment of casual labourers engaged on or before 1st September 1993 working for eight full hours in a day of the neighbouring Division/Unit on the basis of selection cum seniority failing which
(e) By appointment of part time casual labourers engaged on or before 1st September 1993 of the recruiting division or unit on the basis of selection cum seniority failing which
(f) By direct recruitment from amongst GDS on the basis of their seniority in the division or unit failing which
(iii) 25% by direct recruitment on the basis of competitive examination restricted to the GDS of the recruiting Division or Unit for joining APS.
9. Applicants' case is for recruitment to (a) above only which constitutes 25% quota. The age limit as per recruitment rules has been prescribed not only to the applicants but to all categories of eligible staff including OBC, ST & SC. The applicants' case cannot be considered as it is in violation of the provisions of the statutory recruitment rules which was uniformly applied to all in the recruitment process. Relaxation of recruitment rules has to be applied after careful consideration and not in a cavaliar manner. The Apex Court in the case of State of Maharashtra vs. Shashikant S Pujari (2006) 13 SCC 175 held :
'ii. The eligibility criteria cannot be relaxed unless there exists a specific provision thereof. A person can avail the benefit of relaxation notification only when he satisfied the conditions specified therein.'
10. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafide. No such act is noticed as the appointments from 2002 to 2009 were made by respondents as per order of Tribunal in O.A.No.312/2008 and connected cases. The implementation of orders in O.A.No.312/2008 was reviewed in C.P.No.95/2009 in O.A.No.312/2008 and the Tribunal had accepted the action of the respondents in the implementation of O.A.No.312/2008. The above cases arose before 2010 when recruitment rules of 2002 were applicable. Applicants challenge filling up of vacancies after 2010 when new recruitment rules 2010 post VIth CPC are applicable which made recruitment to MTS as direct recruitment and the applicants are overaged as per statutory recruitment rules and any relaxation to applicants would be unreasonable and arbitrary and hence bad in law. The O.A is, therefore, dismissed.
(Dated this the 4th day of February 2016)
P.GOPINATH U.SARATHCHANDRAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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