Central Administrative Tribunal - Kolkata
Sayan Samanta vs Posts on 15 May, 2023
POMERAT RE ec on MR Io eer sy ~™, : wo: 1 ms >| 0a,.323.23 1 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA O.A/ 350/323/2023 Date of Order: 15.03.2023 Coram: Hon'bleMr.Jayesh V. Bhairavia, Judicial Member Hon'bleMr.AnindoMajumdar, Administrative Member 1. SayanSamanta, son of Binoy Kumar Samanta, residing at Andul Station Road, Shasthitala, Jhorehat, District Howrah, PIN: 711 302. Phone No. (M): 8617243384/7687019011, Phone No. of the Advocate: 9831405092, email (Advocate) indranath [email protected] 2. Ujjal Kumar Chakravorty, son of BhupendraChakravorty, residing at Jhautala, Brahmanpara, Shyamnagar, District: North 24- Parganas, PIN: 743127. M: 9433551381. Phone No. of the Advocate: 9831405092, email (Advocate) [email protected] --Applicants -VS- 1. Ministry Union of India, Service through the Secretary, of Communication, Department of Posts, Government of India, Dak-O-Tar Bhawan, New Delini - 110 001. 2. Secretary, Ministry of Communication, Department of Posts, Government of India, Dak-O-Tar Bhawan, New Delhi - 110 001. 3. Director General of Posts, Ministry -- of Communication, Department of Posts, Government of India, Dak-O-Tar Bhawan, New Delhi - 110 001. 4. Chief Post Master General, West Bengal Circle, YogajogBhawan, C.R. Avenue, Kolkata - 700 012. 5. Assistant Director of Postal Services (Rectt.), Office of the Chief Post Master General, West Bengal Circle, YogajogBhawan, C.R. Avenue, Kolkata - 700 012. --Respondents For The Applicant(s): Mr. |. N. Mitra, counsel For The Respondent(s): 2 0a.323,23 ORDER(ORAL) Per: Jayesh V. BhairaviaMember (J):
Heard Id. counsel for the applicants.
2. The applicants have approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, seeking following relief:-
"A) An order do issue directing the respondent authorities more particularly the Chief Post Master General, West Bengal Circle, Kolkata to declare the applicants are seniors to those selectees of the subsequent selection process notification dated 15.06.2018.
B) An order do issue directing the respondents authorities more particularly the Assistant Director of Postal Services, office of the Chief Postmaster General, West Bengal Circle, Kolkata to allow the applicants tc participate at the Limited Departmental Competitive Examination (LDCE) initiated vide notification dated 23.01.2023.
C) And pass such order or orders, direction or directions as this Hon'ble Tribunal may deem fit and proper;
3. In the instant O.A, it is the submission of the Id. counsel for the applicants that:
3.1. Pursuant to the notification, bearing no. Rectt/X-16/DR/2015, dated 23.12.2015,issued by the Asst. Director (Rectt) for Chief Postmaster General, West Bengal Circle for filling up total vacancy of 439 posts of Postman/Mailguard in different Postal/RMS | Division in the department of post, West BengalCircle, the applicants herein with requisite details of their education qualification have submitted their candidature. On receipt of it, the respondents issued admit card to the applicants and intimated the date of schedule of written test to be held on 29.05.2016. Accordingly, the applicants appeared at the said fil examination along with other candidates.
e 3 0a.323.23 3.2. After the completion of all formalities and after preparation of the merit list, respondents vide notification dated 23.12.2016 informed the Postmaster General Sikkim State, the Director, Kolkata and all Senior Superintendent of Post Offices/SSRMs/SPOs/SRMs etc. that as per condition of the notification, Division wise short list has been prepared and the candidates has been allocated to the Division as per exercising their option in the online application subject to availability of vacancies in the specified Division (Annexure A-2 refer).
3.3. Thereafter, the applicants herein were waiting for their appointment letter. However, Respondent no. 5 i.e., ADPS herein vide notification dated 17.4.2017 conveyed to all concerned that the result which was published on 23.12.2016 has been kept in abeyance. (Annexure A/4 refer). Subsequently, vide notification dated 12.2.2018, (Annexure A-5 refer) the respondents No. 5 cancelled the result published on 23.12.2016 3.4. Aggrieved by the aforesaid decision of cancellation of result as well as cancellation of the selection process en-bloc, a group of successful candidates preferred an O.A being no. 274/2018 before this Tribunal.
During the pendency of the said O.A, the respondent no. 5, L.e., Assistant Director (Rectt.) issued another employment notification dated 15.6.2018 inviting application from the intending eligible candidates for appointment to the post of Postman/Mailguard in different Postal/RMS Division in the department of Post, West Bengal Circle. yy 2 4 0a.323.23 3.5 Thereafter, the said O.A 274/2018 came to be disposed of by this Tribunal vide order dated 11.09.2019 (Annexure A-9 refer) with a direction to the respondent authorities that "the tainted candidates being clearly and manifestly earmarked, as would appear from the vigilance reports, the vacancies being indubitably and _ irrefutably available as admitted by Respondents at the Bar, we can simply direct the authorities to segregate the ones named in the report, upon due notice to the candidates likely to be affected due to segregation and proceed with the selection and allow the untainted ones to be appointed. Entire exercise be completed by three months."
3.6. Aggrieved by the aforesaid order, the original respondents preferred a Writ Petition being WPCT 149/2019 before the Hon'ble High Court at Calcutta. The said WP came to be disposed of vide judgment dated 25.08.2020 (Annexure A-10 refer) by Hon'ble High Court with a direction to the Chief Postmaster General, West Bengal Circle "to segregate the tainted and untainted candidates and publish the list of successful candidates."
In compliance of the judgment, the Assistant Director of Postal Services (Rectt), on 16.04.2021, published the list of selected candidates of 381 successful untainted candidates in the examination held on 29.8.2016 for recruitment to the post of Postman/Mailguard against the vacancies for the year 2014 & 2015 (Annexure A-11 refer).
i 5 0a.323.23 3.7 The applicants herein were declared as_ successful candidates in the said result published on 16.04.2021. Accordingly, vide order dated 05.05.2021, the Sr. Superintendent of Post Offices issued appointment letter in favour of the applicants. (Annexure A-12 collectively refer). Pursuant to the said appointment order, the applicants joined as Postman/Mailguard in the Department of post and had undergone the prescribed training. On completion of the training, vide order dated 23.07.2021 the applicants were posted against vacant post in Postman cadre at Barabazar Head Office. (Annexure A-14 refer).
4. It is stated that before the applicants could join their service as per order dated 23.07.2021, in the meantime, on completion of selection process with respect to another employment notification issued on 15.6.2018, the empanelled candidates of the said selection process had joined their service as Postman in the year 2019. Accordingly, they became senior to the present applicants although the applicants herein are the selectees of the earlier selection process of year 2015.
4.1. Ld. counsel for the applicant submits that recently the office of the respondent no. 4, Chief Postmaster General issued notice dated 23.1.2023 (Annexure A-15 refer) whereby for filling up the vacancies for promotional post of Postal Assistant (Circle Office and Regional Offices) Postal Assistant (Post Office) and Sorting Assistant (Railway Mail Service) from eligible officials for the vacancy year 2023 (01.01.2023 to 31.12.2023) it has been conveyed that Limited Departmental Competitive Examination (LDCE) to be held on 12.03.2023 and accordingly applications pL 6 0a.323.23 were invited from the eligible officials in the format enclosed with the said notification/notice.
4.2 Further Learned Counsel for the applicant submits that the Clause 3 of the said notification dated 23.1.2023 prescribed the eligibility criteria along with the criteria that as per Department of Posts (Postal Assistant & Sorting Assistant) Recruitment Rules 2022, notified vide GSR 459(E) dated 17.06.2022 as amended on 13.01.2023, the eligibility criteria for Category (A) is that the Officials holding post in Level 3 of the Pay Matrix with three years of regular service in such post or five years of combined regular service in posts in Level 1, Level 2 and Level 3 of Pay Matrix are eligible for the said LDCE.
4.3. \t is contended that since the applicants were appointed on 05.05.2021 and due to lack of requisite three years of regular service in level 3 of pay matrix, they are not eligible for offering their candidature for the post of PA although the applicants are the selectees of the selection process initiated in the year 2015. There was no fault on the part of the applicants but due to delay caused on the part of the respondents, they were ordered to join their service as Postman only in the month of May 2021.
4.4 Ld. counsel for the applicant by relying upon the DOPT instructions and guidelines on seniority of direct recruits and promotees 'issued vide various OMs including OM dated 04.11.1992 and 30.06.2000 (Annexure A-16) submits that the relative seniority of all direct recruits is determined by the order of merit as stated in para 2.1. and 2.1.1 of the said instructions.
gil 7 0a.323.23 Therefore, the applicants are required to be treated as senior to the appointees of 2018-19.
5. Ld. counsel for the applicant submits that it is settled position of law that selectees of the earlier selection process are senior to the selectees of the subsequent selection process. The applicants were selected pursuant to notification issued in the year 2015 and they became senior to the selectees of the subsequent process held in the 2018. In this regard he place reliance on the judgement passed by the Hon'ble Apex Court in the case of Dalila Sojah vs State of Kerala and Others (1998) 9 SCC 647.
It is also contended by the Id. Counsel for the applicant that for no fault on the part of the applicants, they were deprived of their selection of appointment in the year 2016. Therefore, the prayer sought in this O.A., be allowed.
6. | Heard the Ld. Counsel for the parties and perused the material on record.
7. -- In the present case as noted hereinabove it is not in dispute that on completion of selection process for filling up vacancies for the post of Postman/Mail Guard, as per employment notice issued on 23.12.2015, the applicants herein were appointed as Postman vide order dated 95.05.2021. Thereafter on completion of the requisite training, they joined their service on 26.07.2021.
7.1. Further, it is noticed that the said selection process with respect to employment notice dated 23.12.2015 was delayed due to various complaints regarding irregularity in conduct of selection process. After conducting a thorough enquiry with regard to the complaints received and as per the direction issued by the SIL O ' 8 0a.323.23 Hon'ble High Court of Kolkata in WPCT no. 149/2019 vide order dated 25.03.2020 (Annexure-A/10), the respondents had subsequently published a list of successful untainted candidates including the applicants herein. Accordingly, the applicants were appointed in the year 2021 against the vacancy notification for filling up 439 posts of Postman of vacancy year 2014-2015, 2015- 2016.
7.2. At this stage, it is apt to mention that the respondents had published another employment notice on 15.06.2018 for filling up 239 posts of Postman/Mail Guard and applications were invited from eligible candidates from the open market. On completion of the selection process with respect to the said employment notice, the successful candidates were appointed in the year 2019.
7.3. Undisputedly. prior to finalization of selection process of employment notice of 2015, the selection process with respect to employment notice issued on 15.6.2018 was finalized in the year 2019 and accordingly successful candidates were appointed in the year 2019 whereas the applicants herein who participated in selection process of Employment Notice 2015, the said selection process came to be finalized in the year 2021 and accordingly the applicants were appointed to the substantial post of Postman in the year 2021. In other words, the applicants who got appointed in the subsequent selection process were substantially appointed in the grade only in the year 2021. Therefore, undisputedly they do not possess the three years requisite experience to become eligible for promotional post of Postal Assistants in terms of Department of Posts (Postal Assistant & Sorting Assistant) Yeo 9 0a.323.23 Recruitment Rules 2022, notified vide GSR 459(E) dated 17.06.2022 as amended on 13.01.2023.
7.4. As per the eligibility criteria prescribed in LDCE notice dated 23.01.2023 (Annexure-A/15) for promotion to the post of Postal Assistant, the clause 3 of the Said eligibility criteria stipulates that for category (A) the Officials holding post in Level 3 of the Pay Matrix with three years of regular service in such post or five years of combined regular service in posts in Level 1, Level 2 and Level 3 of Pay Matrix are eligible for the said LDCE.
8. It is the grievance of the applicants that they are selectees of an earlier employment notice pertaining to the year 2015, but for no fault on their part they were appointed only in the year 2021. They are aggrieved that the selectees of subsequent selection process i.e, of the year 2018, who were appointed prior to them had gathered more than three years of experience as Postman and have become eligible to participate in the LDCE whereas they being appointed in the selection process for the year 2015, they ought to have been allowed to participate in the LDCE for promotional post of Postal Assistants by treating them senior to the appointees of the year 2019.
9. The said submission of the applicants, in our considered view, is not tenable in light of conditions stipulated in the Recruitment Rules for the post of Postal Assistants. As noted hereinabove, the applicants were substantially appointed to the post of Postman only in the year 2021. The order of merit in which they were selected to the post of Postman was with respect to the selection process initiated pursuant to employment notice of 2015, whereas, the order of merit with respect to Jie 10 0a.323.23 selection process of the year 2018 cannot be treated as the merit of other selection process i.e., of the year 2015. Even otherwise, the applicant cannot claim any seniority in the cadre of Postman since they were substantially appointed only in the year 2021. To participate in the recruitment process and inclusion in the list of successful candidates does not create any vested right to be appointed till the candidates are appointed substantially and enter into the grade applicable to the said post. Further, the applicants herein had entered in the grade of Postman only in the year 2021. Undisputedly, they have not completed minimum 3 years of requisite experience in the grade of Postman and cannot be said to be eligible for appearing in the LDCE scheduled to be held for promotional post of Postal Assistant.
10. Ld. Counsel for the applicant would rely on judgment passed by the Hon'ble Apex Court in Dalilah Sojah v. State of Kerala & ors. reported in (1998) 9 SCC 641 and submits that the applicants were selectee. of the Employment Notice of the year 2015. They are senior to the subsequent appointees of the year 2019 but for no fault on their part they are sufferer and deprived for early appointment. Therefore, they are entitled to participate in the LDCE for promotional post.
11. In our considered view, the said submission of the Ld. Counsel is also not tenable for the reason that in the relied upon case, the selection for the post of Legal Assistant took piace and a select list was issued on 23.6.1971. The name of the appellant was included in the select list. However, the administration found that if the appellant was appointed there would have been a disturbance of the 50% of reservation and due to the said reason the appointment of the appellant He-
li 04a.323.23 ~was not made and the same was passed over. Subsequently, on 6.10.1972 two vacancies were reported and requisition was made for selection to this post. The applicant was not considered against the said post. Thereafter, a fresh selection was made which resulted in new list of selectees on 22.3.1974. The respondents had shown the name of appellant at Srl. No. 1 in both the select list.
In challenge to the said select list the respondent/private respondent filed Civil Appeal No. 2967 of 1984 before the Hon'ble High Court at Kerala. The Hon'ble High Court came to the conclusion that the select list of 23.6.1971 in which the name of the appellant had been included had come to an end on 14.6.1973 and, therefore, when the second list was prepared on 22.3.1974, the appellant herein could not have been included in that list. At the same time, the Hon'ble High Court did not disturb the appointment of the appellant but observed that the Writ Petitioner before it would rank senior to the appellant. Subsequently the Government had issued an order granting seniority to the private respondents (original petitioner before High Court).
Aggrieved by the said judgment, the appellant had approached the Hon'ble Apex Court by way of SLP. The Hon'ble Apex Court took into consideration that appellant was selected as per the list declared in the year 1971. The appointment was not offered at the relevant time by the respondents since it disturbed the 50% reservation quota and she was passed over by the: respondents. Further, it is also taken into consideration that when two vacancies arose on 6.10.1972 at that point of time none of the private respondents were even been selected for appointment to the said post. The Hon'ble Apex Court had also taken into consideration the fact that the select list which was prepared on fe 12 0a.323.23 23.6.1971 was alive on 6.10.1972. The selection of respondents / private respondents was notified on the second list which was prepared on 22.3.1974. Accordingly, the finding of Hon'ble High Court that the appellant names could not be placed at Srl. No. 1 in the second list was not accepted by the Hon'ble Apex Court. It was held by the Hon'ble Apex Court that the appellant was being appointed against the vacancy which had arisen on 6.10.1972 when, admittedly, the select list which was published on 23.6.1971 was still alive i.e. on 6.10.1972.
12. In the present case, it can be seen that the applicants herein participated in the selection process pursuant to Employment Notice of 2015 which was under cloud. The initial select list of the candidates was not approved and subsequently after thorough scrutiny of tainted and untainted candidates in light of directions issued by the Hon'ble High Court as referred hereinabove the final select list was notified in the year 2021. Accordingly, the first time, the valid select list of Employment Notice of 2015 was published in the year 2021 and the names of applicant included in the said select list. Thereafter, as discussed hereinabove the applicants were offered appointment to the substantial post of Postman which was accepted by the applicants herein.
Undisputedly, in the present case there was no live select list till 2021 with respect to selection process of Employment Notice for the year 2015 and no right accrued whatsoever in favour of the applicants before the year 2021 to be considered for appointment to the post of We Postman.
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13 8.323.23 Under the circumstances, the judgrnent relied upon by the Ld. Counsel for the applicant comes to the aid of the applicants herein.
43, In view of the aforesaid discussion, the applicants cannot be said to be senior to the appointees of the year 2019 and at the same time they cannot claim seniority over them, The claim of the app licants that they should be treated senior to the appointees of the year 2079 since the applicants have parti icipated in the selection process of Employment Notice of 2015 and the respondents ought to have allowed them to participate in the LDCE for promotional post of Postal Assistant that too without having requisite three years of experience in the feeder cadre lacks merit.
44, The O.A. lacks merit and is accordingly dismissed. There shall be no order as to cosis.
if, {AnincoMajumdar) (Jayesh V. BAairavia) Member (A) Member (J)