Central Administrative Tribunal - Ernakulam
Vijaya Kumaran K vs Union Of India on 14 July, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00256/2015
Thursday, this the 14th day of July, 2016
CORAM:
HON'BLE Mr.JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Ms.P. GOPINATH, ADMINISTRATIVE MEMBER
1. Vijaya Kumaran K,
S/o.Chinnan,
GDS Branch Post Master, Elakkad,
Kongad, Department of Posts, Palakkad - 678 621.
Residing at Kilayarukil House, Parasseri P.O.,
Kongad, Palakkad - 678 631.
2. Ramakrishnan A.,
S/o.late Ayyappan,
GDS MC, Meenkara Dam BO,
Muthalamada, Department of Posts,
Palakkad - 678 507.
Residing at Deepa Nivas, Kambrathchalla,
Muthalamada P.O., Palakkad - 678 507. . . . . Applicants
(By Advocate Mr.V.Sajith Kumar)
Versus
1. Union of India
represented by the Secretary to the Government of India,
Department of Posts, Government of India,
New Delhi - 110 001.
2. The Chief Postmaster General,
Kerala Circle, Trivandrum - 695 101.
3. The Senior Superintendent of Post Offices,
Palakkad Postal Division, Palakkad - 678 001. . . . . Respondents
(By Advocate Mr.P.G.Jayan,ACGSC)
This application having been heard on 4 th July 2016, the Tribunal on
14th July 2016 delivered the following :
ORDER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER The applicants aver that they are entitled to be considered against the unfilled departmental vacancies of Postman for the year 2012. Annexure A- 1 Recruitment Rules were framed in supersession of the 1969 Recruitment Rules. The 1969 Rules became non existent by the enactment of 1989 Rules. The 1989 Rules are not superseded by any subsequent enactments. In 1989 in exercise of the powers conferred by the proviso to Article 309 of the Constitution and in supersession of Indian Posts and Telegraphs (Postmen/Mail Guards/Head Mail Guards) Recruitment Rules, 1969, the new Recruitment Rules were framed. The new Recruitment Rules are amended in the year 1995 produced as Annexure A-1. As per terms in Annexure A-1, unfilled vacancies in the departmental vacancies are to be transferred to the GDS. In case the unfilled vacancies are transferred to GDS, the applicants would be the next candidates to be posted as Postman. There are 11 unfilled vacancies in the departmental quota. It is submitted that Annexure A-1 is the Recruitment Rules in force. It is not so far repealed by any known process of law. In spite of the same, the respondents are relying on some other rules to deny the unfilled vacancies in the departmental quota. In the year 2010 the respondents had notified certain rules under the proviso to Article 309 in supersession of the 1969 Rules. The 1969 Rules were already superseded and the field is currently occupied by Annexure A-1 1995 Rules. Without taking note of the same, invalid Annexure A-2 2010 Rules were framed and circulated by the respondents. The Opening Portion/Preamble speaks about the supersession of 1969 Rules. The above notification has not superseded the 1989 Rules, which is presently occupying the field. The Legislative intention cannot be presumed in favour of Annexure A-2, since an intention to overlook Annexure A-1 1995 Rules is not reflected anywhere at all. Annexure A-1 permitted filling of 25% of Postman vacancies by GDS, based on seniority and another 25% by GDS based on merit in the examination. The remaining 50% reserved for MTS/Group D will also get diverted to GDS, in case of vacancies remain unfilled due to non availability of successful candidates from Group D.
2. Annexure A-2 brought in various changes detrimental to the GDS employees as the only career prospect of GDS was the chance of getting absorbed into Group D or Postman. Annexure A-2 offered more scope for direct recruitment than absorption of GDS. Most of the GDS are highly meritorious in terms of their academic qualifications. Seniority quota was totally taken away and 25% Direct Recruitment was proposed. Unfilled vacancies of 50% quota reserved for MTS/Group D was set in favour of direct recruitment instead of offering the same to GDS. Opportunity for GDS was limited to 25% of the vacancies to test their merit and failing which those vacancies were filled by direct recruitment. An amendment was brought in amending 2010 Recruitment Rules, by which 50% was offered to MTS and GDS respectively on merit, failing which by Direct Recruitment. It is submitted that the attempt of the respondents to operate invalid Recruitment Rules under Annexure A-2 and Annexure A-3 are under challenge in a set of Original Applications before this Court and interim orders are in force preventing appointment from open market. The respondents had notified the examination to fill the vacancies for the year 2012. As per the terms of the notification there were 12 vacancies in the Departmental Quota and 11 vacancies in the GDS Quota. Annexure A-4 does not indicate that revised Rules were followed. Only subsequent to the selection, the applicants came to know that invalid Rules are being operated. The respondents had declared the results of the examination in the last week of May 2013. All the applicants have cleared the examination. Therefore all the applicants are to be appointed against the 11 vacancies in preference to Direct Recruitment from open market. 12 vacancies in the Departmental Quota ought to have been transferred to GDS Merit Quota. There are 12 unfilled vacancies in the Departmental Quota. All these vacancies have already been diverted for Direct Recruitment from open market, which is not permissible as per Annexure A-1 1995 Recruitment Rules. This Tribunal in O.A.No.670/2013 had directed the respondents vide interim order not to resort to direct recruitment to the post of Postman from open market against the unfilled vacancies under Departmental Quota. The applicants argue that the 1969 Rules became non existent by the enactment of 1989 Rules. The 1989 Rules are not superseded by any subsequent enactments. Hence it is the valid Rules in force. Annexure A-2 speaks about the supersession of certain Rules which were already non existent. The applicants in support of their contention cite Chautala ETC Transport Society vs. State of Punjab AIR 1962 Punj.94-98 wherein it is held that 'There is presumption against implied repeal, a presumption classically founded on the doctrine that the Parliament, when enacting a law is presumed to keep in view the whole body of the existing law on the subject and therefore, if a repeal of the existing law is intended the Parliament would much rather expressly specify the offending provision than leave it to the not too certain rule of implied repeal during the interpretative process by the Courts.'
3. Relief sought by the applicants is to declare that (Annexure A-2) (Postmen/Mail Guards/Head Mail Guards) Recruitment Rules 2010 as amended in Annexure A-3 is illegal, unconstitutional and liable to be set aside.
4. Respondent submits that the 1st applicant in the O.A is a regularly engaged Gramin Dak Sevak Branch Postmaster of Elakkad PO with effect from 5.2.2003. The 2nd applicant in the O.A is a regularly appointed Gramin Dak Sevak Mail Carrier, Meenkara Dam P.O with effect from 25.1.1983. Both the applicants have applied for taking part in the Limited Departmental Competitive Examination to the cadre of Postman for the vacancies of 2012, the notification of which was issued vide Annexure A-4. The said examination was held on 19.5.2013. The examination was conducted as per the Department of Posts (Postman and Mail Guard) Recruitment Rules, 2010 and Department of Posts (Postman and Mail Guard) Recruitment (Amendment) Rules, 2012. The vacancy position was also mentioned in the notification (Annexure A-4). There were 2 vacancies under OBC quota, 6 vacancies under unreserved category and 1 for PH under Direct Recruitment component. Twelve vacancies were also announced under Promotion Quota. Applicants 1 and 2 have appeared in the said exam with Roll Nos.K/P-71 and K/P-12 respectively against DR quota vacancies. The result of the exam was announced on 4.6.2013. The applicants are not declared passed, and two candidates under OBC quota and 6 candidates under unreserved category are declared to have been passed against Direct Recruitment Quota of the vacancy. As no candidate appeared under PH category, the vacancy under this quota could not be filled. None has qualified in the promotion quota and therefore the 12 vacancies could not be filled in. As per the Recruitment Rules mentioned above, the unfilled vacancies under promotion quota are required to be filled from the open market. According to the applicants, the 1989 rules have not been formally repealed and hence the selection for the year 2012 should have been made as per 1989 rules and if so done applicants would have got selection against unfilled departmental quota available to GDS as per 1989 Rules.
5. The respondents aver that this argument is not correct. 2010 Rules prescribe a different mode of selection and it is therefore implied that the old rules are repealed with the notification of the 2010 Rules. The respondents argue that the Department of Posts (Postman/Mail Guard) Recruitment Rules, 2010 was made with a view to amend and bring a fresh rule in supersession of the earlier Indian Posts and Telegraphs (Postman/Mail Guard/Head Mail Guard) Recruitment Rules, 1989. But inadvertently the year was mentioned as Indian Posts and Telegraphs (Postman/Mail Guard/Head Mail Guard) Recruitment Rules, 1969 instead of 1989. In view of the need to correct the said mistake the Department of Posts (Postman and Mail Guard) Recruitment (Amendment) Rules, 2014 was made and notified in the Gazette of India, Extraordinary, Part II- Section-3-Sub Section (I) dated 17 th December 2014. Respondent argues that averments in paragraph 3 in original application are baseless. Respondent brings to our notice that the subject matter in the OA is already adjudicated before the Tribunal Ernakulam Bench in OAs 100, 121, 249, 334, 679, 670, 719, 834, 862, 1029 and 1184 of 2013, 547, 598 and 599 of 2014 and Tribunal has passed a common order dismissing them, finding that the applicants have no legally justifiable grounds to have an order in their favour. This order of Tribunal was further challenged in Honb�ble High Court in OP(CAT) No.34/2015 in which there is an interim order directing that the establishment shall not resort to direct recruitment to the post of Postman from open market against the unfilled departmental quota vacancies.
6. The respondents argue that the Department of Posts (Postman and Mail Guard) Recruitment Rules 2010 and amendment Rules 2012 was made as per proviso of Article 309 of the Constitution of India. The postman exam was conducted as per the Recruitment Rules 2010 and amended Rules 2012 which were prevalent at the time of notification. The Recruitment Rules 2010 and amendment Rules 2012 have put in place Post VI CPC a different mode of recruitment as directed on revision of pay scale and hence the latter rules prevail. The R-2 2010, R-4 2012 and R-6 2014 amendment are issued with Presidential sanction. The R-6 2014 amendment clearly mentions that :
G.S.R.901(E) - In exercise of the powers conferred by the proviso to article 309 of the Constitution, the President hereby makes the following rules further to amend the Department of Posts (Postman and Mail Guard) Recruitment Rules 2010 namely :-
1. (1) These Rules may be called the Department of Posts (Postman and Mail Guard) Recruitment (Amendment) Rules, 2014. (2) The shall be deemed to have come into force with effect from the 20 th December 2010.
2. In the Department of Posts (Postman and Mail Guard) Recruitment Rules, 2010 in the opening portion for the words, brackets and figures 'Indian Posts and Telegraphs (Postman/Mail Guard/Head Mail Guard) Recruitment Rules 1969' the words, brackets and figures 'Indian Posts and Telegraphs (Postman/Mail Guard) Recruitment Rules, 1989 shall be substituted.
7. The provision of direct recruitment from open market in a recruitment process was already adjudicated by the Tribunal in O.A.No.719/2013 citing the Apex Court judgment in AN Sehgal & Ors. Vs. Raje Ram Sheoran & Ors. 1992 Supp. (1) SCC 304. The subject matter in the O.A is also adjudicated before the Ernakulam Bench of the Tribunal in O.As 100, 121, 249, 334, 679, 670, 719, 834, 862, 1029 and 1184 of 2013, 547, 598 and 599 of 2014 and Tribunal has passed a common order dismissing them finding that the applicants have no legally justifiable grounds to have an order in their favour. This order of Tribunal was further challenged in Hon'ble High Court in OP(CAT) No.34/2015 in which there is an interim order directing that the establishment shall not resort to direct recruitment to the post of Postman from open market against the unfilled departmental quota vacancies. Respondent argues that though the vacancy notification issued as per Annexure A-4 does not specifically mention about the Recruitment Rules, para 05 of the notification clearly spells out the method of recruitment. This method of recruitment is as stipulated in the recruitment rule 2010 and amended rule 2012. Further the exam notification in para 05 clearly specified the method of recruitment and it was not as if applicant was not notified about the method prior to applying for the promotion examination. The postman exam was conducted as per the recruitment rules 2010 and amended rules 2012 which were prevalent at the time of notification. The applicant calls attention to the order of the Tribunal in O.A.No.670/2013. This is an interim order and the O.A itself was dismissed through order dated 1.1.2015 Annexure A-7. The respondent argues that the recruitment rules 2010 and amendede rules 2012 have put in place a different mode of recruitment and hence it should be presumed that the latter rules prevail as the same are departing from the procedure indicated in the earlier 1989 rules. Even if there is no express provision in the introductory part of the 2010 notification about the repealing of the particular rules, when the new rules bring in a different method of recruitment it should be deemed that the earlier rules have ceased to be in operation. The subject matter of this O.A was considered by the Tribunal in O.A.No.100/2013 and other vide order dated 1.1.2015. The relevant portion of the order is reproduced as follows :
14. It is settled law that the candidates applied for selection and undergone written test and selection process have no vested right but only a right to be considered for selection [N.T. Bevin Katti v. Karnataka Public Service Commission - AIR 1990 SC 1233 and Pitta Naveen Kumar v. Raja Narasaiah Zangiti - (2006) 10 SCC 261]. Similarly the Apex Court has deprecated the practice of a candidate having participated in a selection process and challenging the selection, finding that he is not selected (see University of Cochin, represented by its Registrar, University of Cochin v. N.S. Kanjoonjamma & ors. - 1997 SCC L&S 976 & State of Jharkhand v. Ashok Kumar Dangi & Ors. - AIR 2011 SC 3182). It is also well settled that if an appointment/ promotion has been made by mistake the Government is at liberty to rectify the defect [see Union of India v.Narendra Singh - (2008) 2 SCC 750; ICAR v.
T.K.Satyanarayan - (1997) 6 SCC 766]. In the light of the aforementioned decisions of the Apex Court we are of the view that the applicants having taken part in the selection process are not justified in challenging the recruitment and the rules, after the selection.
15. Respondents Department being the employer has the right to frame rules for recruitment. Recruitment Rules made under the proviso to Article 309 ensures that the recruitment is taking place without any arbitrariness and in accordance with the constitutional provisions of Article 16 read with Article 14. In Govind Dattatray Kelkar v. Chief Controller of Imports & Exports - AIR 1967 SC 839 it was held by the Apex Court that where recruitment to a service or certain posts is from different sources eg. Direct recruitment and promotion from lower post, it would be for the Government to determine, having regard to the requirement and needs of a particular post what ratio, as between the different sources would be adequate and equitable. In the same case the Apex Court held that if the ratio is so unreasonable as it amounts to a discrimination, it is not possible for the Court to strike it down or suggest a different ratio. Thus, it is clear that the fixation of quota for different categories of persons for recruitment and the mode of recruitment to be adopted is within the province of the executive. The Court or Tribunals cannot step in to the shoes of the executive and to decide in any manner such recruitments are to be regulated.
16. We find force in the contention of the respondents that the amendment of 2010 and the subsequent amendment in 2012 have put in place a different mode of recruitment and hence it should be presumed that the latter rules prevail as the same are totally new and are departing from the earlier rules. Therefore, even if there is no express provision in the introductory part of the notification about the repealing of the particular rules, when the new rules bringing a different method of recruitment it should be deemed that the earlier rules have ceased to be in operation. Besides, we wish to point out that the rules made under the proviso to Article 309 are temporary in nature in view of the express provision in the proviso that such rules are '........until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act'. (see Article 309 of the Constitution of India). Therefore, since the nature of the rules made under the proviso to Article 309 being temporary in nature any amendment made thereof will also have to be deemed to be a change made to the earlier provision.
17. It appears that applicants are aggrieved by the opening given to the open market candidates for being recruited as Postman. As per the 2010 rules 25% of the vacancy is kept aside for direct recruitment. The philosophy and jurisprudential background of induction of direct recruits has been explained by the Apex Court in A.N. Sehgal & Ors. v. Raje Ram Sheoran & Ors. - 1992 Supp.(1) SCC 304. The Apex Court held as under :
'17. With a view to have efficient and dedicated services accountable to proper implementation of Govt. policies, it is open, and is constitutionally permissible for the State, to infuse into the services, both talented fresh blood imbued with constitutional commitments, enthusiasm, drive and initiative by direct recruitment, blended with matured wealth of experience from the subordinate services. It is permissible to constitute an integrated service of persons recruited from two or more sources, namely, direct recruitment, promotion from subordinate service or transfer from other services, Promotee from subordinate generally would get few chances of promotion to higher echelons of services. Avenues and facilities for promotion to the higher services to the less privileged members of the subordinate service would inculcate in them dedication to excel their latent capabilities to man the cadre posts. Talent is not the privilege of few but equal avenues made available would explore common man's capabilities overcoming environmental adversity and open up full opportunities to develop one's capabilities to shoulder higher responsibilities without succumbing to despondence. Equally talented young men/women of great promise would enter into service by direct recruitment when chances of promotions are attractive. The aspiration to reach higher echelons of service would thus enthuse a member to dedicate honestly and diligently to exhibit competence, straightforwardness with missionary zeal exercising effective control and supervision in the implementation of the programmes. The chances of promotion would also enable a promotee to imbue involvement in the performance of the duties; obviate frustration and eliminate proclivity to corrupt practices, lest one would tend to become corrupt, sloven and mediocre and a dead wood. In other words, equal opportunity would harness the human resources to augment the efficiency of the service and under emphasis on either would upset the scales of equality germinating the seeds of degeneration.' (emphasis supplied)
18. We are of the view that the afore quoted rationale for direct recruitment would take wind out of the sails of those who oppose the opening up 25% of the posts of Postman for direct recruits from open market.
19. Taking into consideration of the rival contentions and the grounds stated in the OAs, we are of the opinion that the applicants have no legally justifiable grounds to have an order in their favour.
20. Accordingly, the OAs are dismissed.
8. This position of law has been clarified by the Supreme Court in V.K.Sood vs. Secretary Civil Aviation (AIR) 1993 SC 2285 wherein it is stated :
'The rules having been made in exercise of the power under proviso to Article 309 of the Constitution being statutory cannot be impeached on the ground that the authorities have prescribed tailor made qualifications........'
9. In P.V.Joshi vs. Accountant General (2003) 2 SCC 632 the Apex Court clearly held that :
'It is well open and within the competency of the State to change the rules relating to a service and alter, amend and vary by addition or subtraction of qualifications, eligibility criteria and other conditions of service including avenues of promotion from time to time as the Administrative exigencies may need or necessitated.' It further goes on to say :
'A government servant has no right to challenge the authority of the state to amend, alter and bring into force new rules relating to even an existing service.'
10. The Supreme Court in the case of T.N.Electricity Board and another vs. T.N.Electricity Board Thozhilaly in C.A.No.1279/2008 while addressing the channelizing of promotion of Helpers in the category of technical posts and not administrative posts stated that this is a policy decision of the Board and it is the Board who has to decide as to who will be suitable for the post and what will be the channel of promotion for such post. It is not for the incumbent serving as a Helper to insist that the Board should amend the Regulation in a manner which suits him.
11. The VI CPC in its recommendations had laid down that they were incorporating systemic changes in the existing procedure of appointments wherein a dynamic bureaucracy with a result oriented approach can be created with emphasis on delivery and end results. Every rupee spent on allowance, facilities and salaries of Government servants was to translate into specific measure for public good. This is more applicable to public utility departments like Post and Railways from which both the public and the Government have more and better expectations. The VI CPC had also attempted to make the functioning of the Government organisations more professional, cost efficient citizen friendly and delivery oriented. End user satisfaction was to be the primary criterion for judging the efficiency of an organization. The pay package devised by VI CPC was intended to provide enough incentive to retain the brightest and attract the best to join the Government in future.
12. The amendments to Recruitment Rules have been made with the above objective laid down by VI CPC uniformly for all Central Government departments and any dilution of the same needs to be negatived as the objective of a public service department is required to be oriented towards not only improved service delivery but the best service delivery to the common man who will be served by the respondent department. Any attempt made by VI CPC which provided a major jump in pay scales to improve services should neither be diluted or discouraged. It is not as if applicant has not been given a chance. Having availed the chance of 25% quota of Limited Department Competitive Examination, the applicant cannot claim that he is denied an opportunity of promotion as the said chance was provided and the applicant did not qualify in the same. Hence plea of denial of opportunity cannot be sustained. Applicant has been provided an opportunity as any other similarly placed person.
13. The applicant's argument that the 2010 Recruitment Rules amended the 1969 Rules and not the 1989 Rules is explained as a typographical error and the Annexure R-6 (2) amendment issued by respondent has corrected the same. Since the 1969 rules were replaced by 1989 rules, the argument of the applicant that the 2010 rules amended the 1969 is not logical or correct. Any rule issued would amend the last rule in operation. On a perusal of Annexure R-6 it is noted that the same has been issued by the powers conferred by the proviso to Article 309 of the Constitution as in the case of all earlier amendments and hence this argument of the applicant also does not hold. The Tribunal cannot issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the Constitution of India. Tribunal cannot assume to itself the supervisory role over the rule making power of the executive, which is a coordinate branch of the government under Article 309 of the Constitution.
14. The above order of the Tribunal in a similar case O.A.No.100/2013 and connected cases is fully applicable in this O.A also. Ordered accordingly.
(Dated this the 14th day of July 2016)
(P. GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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