Central Administrative Tribunal - Ernakulam
M.A. Mohanan vs The Senior Supdt. Of Post Offices And ... on 3 November, 1999
JUDGMENT G. Ramakrishnan, Member (A)
1. This O.A. has been filed by the applicant--an Extra Departmental Agent-aggrieved by the order contained in letter No. B-6/11-2/98 (Pt) dated 23.9.98 (A3) deleting his name from the list of eligible candidates and Memo No. B-6/11/1/99 dated 7.7.99 (A6) selecting fourth respondent as Postman overlooking him, both issued by the 1st respondent and letter No. 44-29/94-SB. I(Pt) dated 17.5.95 (A7) issued by the 3rd respondent.
2. Applicant stated in the O.A. that he was the seniormost EDA belonging to Other Backward Category (OBC) in Ernakulam Postal Division entitled to be promoted against OBC vacancy in the seniority quota of EDAs for promotion to the cadre of Postman. He submitted that he was working as Extra Departmental Letter Box Peon at Ernakulam College Post Office since 27.4.82 and had 16 years of service and claimed to have studied upto VIII standard. According to him EDAs had been provided with a promotional avenue to the cadre of Postman as per Indian Posts and Telegraphs (Postman/Mailguards/Head Mailguards) Recruitment Rules, 1989 published under A1 notification dated 6.7.89 and amended by A2 notification dated 30.1.95. He stated that he was a candidate for the departmental examination held by the 1st respondent on 26.4.98 for filling up the vacancies of Postman cadre for the year 1998. In the notification issued for this examination inviting applications from eligible candidates belonging to the departmental and EDA cadres, it was stipulated that EDAs who entered service after 25.4.87 should possess minimum educational qualification of matriculation. Applicant stated that according to letter dated 17.4.98 all the 6 vacancies were allotted to E.D. Agents' quota were earmarked for OBC category and subsequently vide letter dated 1.7.98 the vacancies were revised to 2 due to fall in anticipated vacancies due to raising of retirement age from 58 to 60. He further submitted that the result of the examination was announced on 6.7.98 in which one Sri Suresh Kammath an EDA belonging to unreserved category was promoted in the seniority quota and another EDA belonging to OBC in the merit quota. Applicant represented against the selection of Sri Suresh Kammath in the seniority quota overlooking applicant's claim based on the OBC quota was rejected by the 1 st respondent vide letter dated 23.9.98 (A3) stating that the applicant was underqualified and ineligible to be considered as a candidate for the post of Postman under the seniority quota of EDAs since he had not passed VIII standard as required under DGP's letter dated 17.5.97 (A7). Applicant submitted that aggrieved by A3 order and the promotion of the unreserved candidate in the seniority quota applicant filed O.A. 1498/98 before this Tribunal which was admitted. Applicant further stated that the 1st respondent held another departmental examination for recruitment of Postman for the vacancies of 1999 on 9.5.99 in which the applicant was also permitted to appear but, when the result was announced 2 EDAs who were junior to the applicant were selected in the seniority quota for OBC and hence he with the permission of this Tribunal withdrew O.A. 1498/98 with liberty to file a fresh O.A. and thus, this O.A. came to be filed. According to the applicant, respondents issued notification dated 1.2.99 calling applications from eligible candidates for the Postmen Examination to be held on 11.4.99 which was subsequently postponed and held on 9.5.99. Applicant stated that on 22.3.99 1st respondent published A4 list of candidates who had been permitted to appear in the said examination. He submitted that there were two parts in the list annexed to the letter-Annexure A-Part I containing the names of Group 'D' officials (departmental candidates) and Part II containing the names of the E.D. Agents. He claimed that the list was prepared in the order of seniority and in Part II of the list, his name appeared at Sl. No. 3 indicating that he was the seniormost EDA in the OBC category. Enclosing a true copy of letter dated 23.3.99 indicating category wise vacancy position of Postman to be selected in the Examination of 1999 as A5, the applicant submitted that out of the total vacancies allotted to outsiders 50% was earmarked for ED As to be filled on the basis of length of service from amongst EDAs who had put in 15 years of satisfactory service and have minimum educational qualification of 8th standard and of the 7 vacancies allotted to EDAs (outsiders) 3 were reserved for OBC and 4 were to OC. According to him 2 vacancies in the OBC quota and 2 vacancies in OC quota were to be filled up by EDAs on the basis length of service irrespective of their appearance in the examination. Referring to the result of the examination declared on 7.7.99 by A6, he stated that as none qualified in the departmental quota the same was added to the merit quota of EDAs and further that in the seniority quota 4 EDAs including the 4th respondent had been selected based on length of service out of which 2 belonged to OBC. He submitted that 9 EDAs had been selected on merit quota. Applicant stated that his name was not included either in the seniority and his name ought to have been included in the seniority quota or in the merit quota. Applicant claimed that as per A4 he was third in the seniority quota. He claimed that his name was not included in the seniority quota on the plea that he was underqualified as stated in A3 in terms of third respondent's letter A7 dated 17.5.95 which prescribed the minimum educational qualification of 8th standard for EDAs for consideration as Postman to be filled up on seniority. Applicant claimed that instructions of the third respondent being administrative in nature could not prevail over statutory Recruitment Rules which did not prescribe minimum educational qualification for EDAs to be promoted to the post of Postman based on the length of service as had been held by this Tribunal by its order A8 in O.A. No. 1454/97, a similar case and hence A7 was ultra vires and illegal and all orders based on the same are liable to be set aside. He submitted that the first respondent had issued orders for imparting pre-appointment training to the selected candidates as per A9 memorandum dated 9.7.99 and that the training would be over by 23.7.99 and all of them including 4th respondent would be given regular appointment as Postman which would result in irreparable loss and injury to the applicant. Therefore, he approached this Tribunal for the following remedies:
(i) To call for the files leading to the issue of A3, A6, A7 and quash A3 and A7 in full and A6 in so far as it relates to the selection of the 4th respondent who is junior to the applicant.
(ii) To declare that the applicant is entitled to be considered for promotion to the cadre of postmen in the seniority quota of Extra Departmental Agents irrespective of his educational qualification and non-inclusion of his name in A6 is illegal;
(iii) To direct the 1st respondent to consider applicant for appointment as Postmen against the vacancy of 1999 based on his length of service and seniority in Other Backward Classes category either in the place of 4th respondent or in any other vacancy.
(iv) To grant such other reliefs which may be prayed for and/or which this Tribunal may deem fit and proper to grant in the facts and circumstances of the case; and
(v) To award costs for these proceedings in favour of the applicant.
3. When the O.A. came up for admission on 23.7.99, an ad interim order was passed restraining the respondents from appointing the 4th respondent against seniority quota.
4. The first Respondent filed reply statement resisting the claim of the applicant. She submitted that the applicant's grievance for not being selected under the seniority quota reserved for EDAs in 1999 was examined in detail and it was found that he was not eligible for the reason stated in A3 (not possessing 8th standard qualification). She submitted that even though the applicant was the seniormost EDA belonging to OBC in the Ernakulam Postal Division he was not selected as he did not possess the minimum educational qualification of 8th standard pass as prescribed in A7 and hence his non-selection was not illegal. She submitted that the recruitment from EDAs was not a promotion but was direct recruitment for which the prescribed qualification was matriculation or equivalent as per A1 and that by A7 the 3rd respondent had relaxed the educational qualification to 8th standard pass for selection under seniority quota as per Clause 5 of A1. She submitted that A7 could only be termed as a relaxation of the rule made under the power of relaxation under Clause 5 of A1 and could not be termed as enhancement of the qualification or amendment to the rules. She further submitted that in terms of A9 all the selected candidates including the 4th respondent were given training to postman and all except the 4th respondent had been appointed as Postman. According to the respondents prescription of age, educational qualification, etc. for recruitment to a particular cadre was a policy matter and the applicant could not challenge such reasonable restrictions before the Tribunal being a policy matter. She submitted that the O.A. was liable to be dismissed for want of jurisdiction and also was liable to be dismissed as the same was devoid of merits with costs to the respondent.
5. Fourth respondent filed a reply statement and referring to the Recruitment Rules of Postmen submitted that the recruitment of EDAs to the cadre of Postman could not be treated as promotion as the EDAs were not regular departmental employees and that they were given priority only in direct recruitment for which educational qualification prescribed in column 8 of the schedule of Recruitment Rules was 'Matriculation' and by A7 the same was relaxed to 8th standard as per power vested vide Clause 5 of the Recruitment Rules to the EDAs against seniority quota. He submitted that the applicant was not at all eligible to be considered in the seniority quota of EDAs and there was no illegality in his (fourth respondent's) selection to the post. He further submitted referring to A3 that the applicant had approached the Tribunal without clean hands and was also trying to misinterpret the Recruitment Rules. The fourth respondent referring to A8 claimed that in O.A. 1454/97 the fourth respondent had not appeared and the actual position of the matter was not clearly brought to the notice of the Tribunal and as A7 had not been set aside the same was still in force. He submitted that the O.A. had no merit and prayed for non-extension of the interim order.
6. When the matter came up for consideration of extension of the interim order, the Counsel for the parties submitted that the O.A. may be heard finally as the pleadings were complete and made their submissions.
7. Heard learned Counsel for the parties. We have given careful consideration to the submissions made by the learned Counsel for the parties as well as the pleadings of the parties and have also carefully gone through the documents on record.
8. The applicant is seeking the reliefs in this O.A. on the basis of the ratio of the order of this Tribunal in O.A. 1454/97. The first respondent resisted the claim of the applicant on the plea that the applicant did not possess the minimum educational qualification of 8th standard pass as prescribed in A7 and that the recruitment of Postman from EDAs is not a promotion but is treated as direct recruitment. She also submitted that as per Al and A2 Recruitment Rules, recruitment by promotion was applicable to only Group 'D' employees of the Department. She added that as filling up of Postman from EDAs was considered as recruitment from outsiders, the educational qualification prescribed in the Recruitment Rules for outsiders is clearly applicable to EDAs which was 'Matriculation' and the third respondent relaxed the said educational qualification to 8th standard for EDAs by A7. On a perusal of the order in O.A. 1454/97 it would appear that the said order was based on the submissions of the respondents in that O.A. In para 2 of the order in that O.A. it had been stated ".....but they contend as it has been decided to prescribe the 8th standard as the minimum educational qualification for promoting the seniormost E.D. Agent as Postman as per letter dated 17.5.95 of the Director General, Posts, the applicant who does not possess the minimum educational qualification has no right to be considered for appointment as Postman." This Tribunal held that administrative instructions dated 17.5.95 could not supplant the statutory Recruitment Rules and could only supplement or fill up a gap in the statutory rules. The Tribunal held that in the amendment to the rules prescribing a minimum educational qualification of 8th standard for promotion of EDAs was unjustified and allowed the O.A.
9. In the present O.A., the first respondent has contended that the recruitment of EDAs as Postman was not a promotion but direct recruitment and that EDAs have been given relaxation of educational qualifications and had not prescribed any new qualification. The 4th respondent is also pleading the same thing. As there is a change in the stand of the department it was felt necessary to call for the file of O.A. 1454/97. On a perusal of the pleadings in that O.A. it is found that in the reply statement the Department did not aver that the recruitment of EDAs as Postman was a promotion. It is also found that the letter dated 17.5.95 was not under challenge in that O.A. It is also noted that the issue as to whether recruitment of Postman from EDAs was a promotion or direct recruitment was not examined at all and the letter dated 17.5.1995 had also not been set aside or declared null and void. In the present O.A. one of the reliefs sought is for quashing A7 order dated 17.5.95 in addition to A3. Therefore, it is felt necessary to go into the question as to whether the quota meant for EDAs provided for in the Recruitment Rules for Postman is to be treated as promotion or direct recruitment.
10. For this purpose, we have examined the Department of Posts (Postman/Village Postman and Mail Guards) Recruitment Rules, 1989 as amended in 1995 (Recruitment Rules of Postman in short) in detail. The age limit for the EDAs is indicated in column 7 in the schedule attached to the Recruitment Rules A1. This column 7 prescribes the age limit for direct recruits. In column 9 of the same schedule states that the age and educational qualification prescribed for direct recruitment will not apply in the case of promotions. If the recruitment of EDAs as Postman is a promotion, non-applicability of age and educational qualification provided for direct recruitment to EDAs should have been indicated under this column 9. Further, in column 11 of the same Schedule laying down the "Method of Recruitment whether by direct recruitment or by promotion or by deputation/ transfer and percentage of the vacancies to be filled up by various methods," 50% has been specifically shown as by promotion. The other 50% has been shown as by EDAs. The above provisions under column 7, 9 and 11 give an indication that the intention in the Recruitment Rules for Postman was to consider the EDAs against direct recruitment only.
11. Further in A5, while against Departmental quota of vacancies no reserved vacancy for OBC has been shown against 'Outsider' quota meant for EDAs, 3 reserved vacancies for OBC have been shown. In addition, in para 3 of A6 it has been stated that S/Sri N.R, Balakrishnan, K.K. Umasudhan, K.K. Krishnankutty and V.M. Dinakaran were selected under OBC reservation quota and their selection was subject to production of the caste certificate for non-creamy layer. As per the law laid down by the Hon'ble Apex Court in Indra Sawhney and Ors. v. Union of India and Ors., JT 1992(6) SC 273, and as per the orders of the Government of India, reservation for OBC candidates is provided only in Direct Recruitment. It is not provided for while filling up promotional vacancies. Thus, this also leads one to conclude that the recruitment of EDAs as Postman can be treated only as Direct Recruitment and not as promotion. Further, Director General Posts' letter N. 45-3/ 91-SPM-1 dated 15.12.92 appearing in page 123 of "Swamy's Compilation of Service Rules of Extra Departmental Staff in Postal Department" (6th Edition, 1995) stipulated that 100 point roster is to be maintained for absorption of EDAs as Postman/Group 'D', Hundred point roster at that time was meant for direct recruitment and not for promotion.
12. As the name itself indicates, EDAs are not departmental employees. They become departmental employees from the date of their regular absorption as such. And promotions are only for departmental employees. Therefore, EDAs cannot be treated as 'promoted' as Postmen. They can be treated as only appointed as Postmen. It is further seen from instructions of Director General Posts under Rule 4 of Swamy's publication referred to earlier that EDAs service are terminated on appointment as Postman and hence they become eligible for ex gratia gratuity. If the recruitment of EDAs as Postman is treated as a promotion, the question of termination will not arise. This also leads one to conclude that the recruitment of EDAs Postman cannot be treated as one of promotion.
13. Further, Hon'ble Supreme Court in C.C. Padmanabhan and Ors. v. Director of Public Instructions and Ors., 1980 (Suppl.) SCC 668=1981(1) SLJ 165 (SC), observed that 'Promotion' as understood in ordinary parlance and also as a term frequently used in cases involving service laws means that a person already holding a position would have a promotion if he is appointed to another post which satisfies either of the two conditions namely that the new post is in higher category of the same service or class. Applying the above criteria appointment as Postman from EDA cannot be termed as promotion as the pots of Postman and EDA belong to two different services viz. regular Postal Service' and 'Extra Departmental Postal Service.'
14. In view of the detailed analysis made as above, we come to conclusion that the recruitment of EDAs as Postman as per the Recruitment Rules for Postman has to be treated as one of direct recruitment and not promotion.
15. The question may be asked as to how when posting as Postman is made as per seniority of EDAs, it cannot be treated as a promotion. There are a number of schemes made by different departments of Government of India providing for induction of casual labourers, substitutes, etc. against vacancies as regular departmental employees on the basis of the length of service as casual labourer, substitute, etc. Therefore, we are of the view that just because 25% of the vacancies of Postmen is to be filled upon the basis of the length of service by EDAs, the recruitment cannot be treated as a promotion.
16. In view of the above finding, the educational qualification applicable to EDAs for recruitment as Postman will be as shown under column 8 of the Schedule attached to Recruitment Rules A1 which is Matriculation or equivalent. By A7 letter Director General Posts has relaxed this qualification to that of 8th standard pass for EDAs under the 25% seniority quota. As this is a relaxation from what is provided for in the Recruitment Rules and is available to all EDAs when considered against seniority quota, no legal infirmity can be found in the same.
17. Now the question that comes up is that the present finding in this O.A. is contrary to the decision of the Division Bench of this Bench in O.A. 1454/97 in which one of us (Hon'ble Sri A.V. Haridasan, Vice Chairman) was a member. As stated earlier, in that O.A. the issue was not examined in detail. Therefore, it is felt that the order in that O.A. is to be taken as rendered 'per incuriam' especially in view of the facts that the Union of India was not a party in that O.A. and the fact that Director General Posts' letter dated 17.5.95 (A 7) was not set aside.
18. In view of the detailed analysis given above, we are of the considered view that the applicant is not entitled for any of the reliefs sought for and the O.A. deserves to be dismissed. Accordingly, the O.A. is dismissed with no order as to costs.
A.V. Haridasan, Vice Chairman
1. I have carefully gone through the opinion of the learned Member (A). The learned Member has found that the recruitment of EDAs as Postman has to be treated as one by direct recruitment and not promotion, that the qualification applicable to EDAs for recruitment as Postman would be Matriculation or equivalent as shown under Col. 8 of the schedule to the recruitment rules (Annexure A1), that the Annexure A7 letter of the Director General, Posts dated 17.5.1995 prescribing 8th standard pass as the qualification for EDAs for recruitment under 25% seniority quota amounts to a relaxation of the qualification prescribed in the recruitment rules which has no legal infirmity and that the observation in the judgment of a Division Bench of this Tribunal in O.A. 1454/97, of which I was the author that the letter of the Director General of Posts dated 17.5.95 prescribing 8th standard pass as the minimum educational qualification for ED Agents for appointment to the post of Postman, is wholly unjustified, was rendered without examining the issue in detail and was therefore 'per incuriam' and that finding no infirmity with the Annexure A7 order, the application is liable to be dismissed.
2. Scanning through the relevant rules and instructions, judicial pronouncements and the pleadings, I find no way to agree with any of the finding of the learned Member. A mere reading of cols. II and 12 of the schedule of the Indian Posts and Telegraphs (Postman/Mail Guards/Head Mail Guards) Recruitment Rules, 1969 as amended by the notification dated 30.1.95 (Annexure A2) will make it clear that the recruitment of EDAs to the post of Postman/Mail Guards/Head Mail Guards etc. is not by way of direct recruitment. Col. 11 to the schedule reads as follows:
''Method of recruitment whether by direct recruitment or by promotion or by deputation/transfer and percentage of the vacancies to be filled by various methods.11
1.
50% by promotion, failing which by Extra Departmental Agents on the basis of their merit in the Departmental Examination.
2. 50% by Extra Departmental Agents of the recruiting division of Unit, in the following manner, namely:
(i) 25% of vacancies of postman shall be filled up from amongst Extra Departmental Agents with a minimum of 5 years of service on the basis of their seniority, failing which by the Extra Departmental Agents on the basis of Departmental examination.
(ii) 25% from amongst Extra Departmental Agents on the basis of their merit in the departmental examination.
3. If the vacancies remained unfilled by EDAs of the recruiting division, such vacancies may be so filled by EDAs of the postal division failing in the Zone of Regional Director.
4. If the vacancies remained unfilled by EDAs of the recruiting units such vacancies may be filled by EDAs of the postal divisions located at the same station. Vacancies remaining unfilled will be thrown upon to Extra Departmental Agents in the region.
5. Any vacancy remaining unfilled shall be filled up by direct recruitment through the nominees of the Employment Exchange."
(emphasis supplied) Col. 12 reads as follows:
"Case of recruitment by promotion/deputation/transfer/Grade from which promotion deputation/transfer to be made.12
1. Promotion from Group 'D' officials who have put in three years of regular and satisfactory service as on the closing date for receipt of applications through a Departmental examination.
2. Extra Departmental Agents through a Departmental Examination.
3. Direct recruitment through a Departmental Examination."(emphasis added) It is evident from what is extracted above that direct recruitment is resorted to only if any vacancy is left unfilled after promotion/appointment of Group D employees of the department and E.D. Agents. 25% of the vacancies earmarked for appointment of Extra Departmental Agents is to be filled solely on the basis of their seniority. This indicates that the appointment of E.D. Agents as Postman under the recruitment rules towards the 25% seniority quota is by a method of promotion and not by direct recruitment. This view taken by me is not contrary to the observations of the Apex Court in C.C. Padmanabhan and Ors. v. Director of Public Instructions and Ors., 1980 (Supp) SCC 668 wherein it was observed as follows:--
"This definition fully conforms to the meaning of 'promotion' as understood in ordinary parlance and also as a term frequently used in cases involving service laws. According to it a person already holding a post would have a promotion if he is appointed to another post which satisfies either of the following two conditions, namely--
(i) that the new post is in a higher category of the same service or class of service,
(ii) the new post carries a higher grade in the same service or class."
Though the Extra Departmental service and the regular postal service are two separate classes of service, they come under the same Department of Posts. It is pertinent to mention that members of the State Civil Service are being appointed by 'promotion' to Indian Administrative Service under the Indian Administrative Service (Appointment by Promotion) Regulations. Though it is on a much higher plane, it explains that appointment by promotion can be made from one service to another service also. Appointment from a lower service to a higher service solely on the basis of seniority or limited departmental competitive examination can under no stretch of imagination be treated as direct recruitment. Further Section VI of the Swamy's Compilation of Service Rules for Extra-Departmental Staff in Postal Department deal with promotion prospects of E.D. Agents. The D.G., P&T's letter No. 44/2/82-SPB.I dated 23rd January, 1982 reads as follows:
"(3) No age relaxation to physically handicapped (EDA) for appearing in the departmental promotion examination--The Director-General has decided that such of the ED employees who are physically handicapped and who are otherwise eligible for being recruited as departmental employees can be considered towards the Reserved Quota of vacancies earmarked for the physically handicapped. As regards the grant of the age concession to the physically handicapped ED employees, it has been decided that inasmuch as the ED As enjoy more relaxation than the outsiders in the physically handicapped category, they cannot be given further age relaxation."
The D.G., Posts letter No. 47-11/93-SPB-1 dated the 25th August, 1993 reads as follows:
"Departmental Promotion Committee for promotion of ED Agents to Group 'D'--It has been reported to the Directorate that in number of Circles, the Departmental Promotion Committee for ED Agents to Group 'D' is not being held in time. As the maximum age prescribed for promotion of ED Agents to Group 'D' is 50 years, some of the ED Agents lost their chance to get promoted as Group 'D'. It is, therefore, requested that the DPCs for promotion of ED Agents to Group 'D' should be held as per the prescribed schedule, particularly keeping in view those cases where some of the ED Agents due for promotion are nearing the age of 50 years as prescribed in the Recruitment Rules."
The D.G., Posts notification No. 60-52/90-SPB-1 dated 24th August, 1992 reads as follows:--
"(13) Promotion of ED officials to clerical cadre.--GSR..... In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the President hereby makes the following rules to amend Department of Posts (Postal Assistants & Sorting Assistants) Recruitment Rules, 1990, namely:--
1. (1) These rules may be called the Department of Posts (Postal Assistants and Sorting Assistants) Recruitment (Amendment) Rules, 1992.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. In the Schedule to the Department of Posts (Postal Assistants and Sorting Assistants) Recruitment Rules, 1990, against the post of Postal Assistants/ Sorting Assistants (in offices other than Foreign Postal Organisation), in column 11, the item (b) for the words 'failing which by direct recruitment," the following words shall be substituted, namely:--
"failing which the unfilled vacancies shall be offered to ED Agents of the Recruiting Divisions/Units subject to their fulfilling the following conditions and if vacancies remain unutilised by the EDAs they shall be filled by direct recruitment of other open market candidates fulfilling the age and qualification conditions laid down in columns 7 and 8.
(a) They possess the minimum educational qualification of 10 + 2 standard (Senior Secondary), and have put in a minimum service of 3 years.
(b) Only those ED Agents would be eligible for being considered who have secured, not less than 10% marks in comparison to the last open market candidate considered, i.e., if in the last recruitment the open market candidate selected had secured 75% marks, the ED Agents to be considered should have obtained at least 56% marks. Bonus marks as admissible to open market candidates will also be admissible to those ED Agents who are Graduates or Post-Graduates, and
(c) They should be within 35 years of age (40 years for SC/ST communities) as on the crucial date fixed for the last open market recruitment."
3. All these instructions clearly indicate that E.D. Agents are considered for promotion to Group-D posts, to the post of Postman, Mail Guards as also in the clerical cadre. Therefore, according to me it would not be correct to say that appointment of E.D. Agents to the post of Postman can never be treated as one by promotion but only by direct recruitment. In the additional reply statement in O. A. 1454/97, the respondents have stated that the applicants therein would be promoted as Group-D, according to the rules in their turn.
4. The observation of the learned Member in paragraph 17 of his opinion that the Bench in O.A. 1454/97 have not examined the issue in detail and that the order in that case was rendered 'per incuriam' is not factually correct. The order in O.A. 1454/97 was passed after considering the relevant issues and applying the correct legal principles. No relevant fact or statutory rule has been overlooked nor is the decision contrary to any binding precedent. All the details of pleading might not have been reproduced as it was felt unnecessary to do so. As stated in para 9 of the opinion of the learned Member it is true that in the reply statement filed by the respondents in O.A. 1454/97, it had not been stated that the recruitment of E.D. Agents as Postman is by promotion, but in the additional reply statement in that case it has been stated "when the applicant satisfy all the eligibility conditions, he will be promoted as Group-D according to rules/in turn." Therefore, even according to the respondents, an E.D. Agent can be promoted at least to a Group-D post.
5. Since the appointment of E.D. Agents as Postman in accordance with the recruitment rules (Annexure-A1) is not by direct recruitment, the finding in paragraph 16 of the opinion of the learned Member that the educational qualification applicable to EDAs for recruitment as Postman would be Matriculation as shown under column 8 of the schedule attached to Annexure A1 recruitment rules does not appear to be correct to my mind. Further the observation in the opinion that Annexure A7 letter of the D.G. of Posts dated 17.5.95 is a relaxation of the educational qualification prescribed in the rules, in exercise of the powers conferred in the recruitment rules also according to me does not appear to be correct. A reading of Annexure A7 will show that what is intended by it is not a relaxation of an existing provision in the recruitment rules but prescribing a minimum educational qualification for Extra Departmental Agents for appointment as Postman under 25% seniority quota for the first time. It is profitable to quote the relevant part of Annexure A7 letter, which reads as follows:
"I am directed to refer to certain references received from Circles on the above subject. The issue has been under consideration and it has now been decided to prescribe a minimum educational qualification of 8th pass for Extra Departmental Agents under the 25% seniority quota. It is further clarified that the vacancies remaining unfilled in the 25% seniority quota may be added to the merit quota. Further necessary action may be taken accordingly."
(Emphasis supplied) It is evident that by the above extracted letter for the first time a minimum educational qualification was prescribed for Extra Departmental Agents for appointment as Postman under the 25% seniority quota. If Annexure A7 was in fact a relaxation, as contended by the respondents and accepted by my learned Brother, it would have been so stated in the letter. Further according to Rule 5 of the Annexure A1 recruitment rules, the power to relax any of the provisions of these rules with respect to any class or category of persons is vested only in the Central Government and the Central Government may relax by an order for reasons to be recorded in writing. The Director General of Posts has no such power and no reason has been recorded. In my view Annexure A7 letter being an administrative instruction repugnant to the statutory recruitment rules is invalid and unsustainable as has been held in the judgment in O.A. 1454/97. Therefore it has to be struck down as incompetent. The impugned order Annexure A3 deleting the name of the applicant from the list of eligible candidates for the reason that he has not passed 8th standard as prescribed in Annexure A7 letter dated 17.5.95 has also to be set aside. As a consequence the impugned panel (annexure A6) to the extent it does not contain the name of the applicant because he was considered ineligible also deserves to be set aside.
6. For the reasons stated aforesaid, according to me, the application deserves to be allowed setting aside the impugned orders and the respondents have to be directed to consider the applicant for appointment against the vacancy of Postman of the year 1999 based on his length of service in the OBC category.
7. A division Bench of the Tribunal in O.A. 1454/97 have held that the D.G. Posts letter dated 17.5.95 is wholly unsustainable. Since there was no prayer in that case for setting aside the order, the same was not set aside. The decision in O.A. 1454/97 being a precedent cannot be ignored by a coordinate Bench so long as it cannot be held to be rendered per incuriam or contrary to any ruling of the Apex Court. A member or a Bench cannot overrule a proposition of law laid down by a Division Bench in an earlier case. It is appropriate to remember the observations of their Lordships of the Supreme Court in K. Ajit Babu and Ors. v. Union of India and Ors., JT 1997(7) SC 24, which reads:
"Consistency, certainty and uniformity in the field of judicial decisions are considered to be the benefits arising out of the "Doctrine of Precedent." The precedent sets a pattern upon which a future conduct may be based. One of the basic principles of administration of justice is, that the cases should be decided alike. Thus the doctrine of precedent is applicable to the Central Administrative Tribunal also. Whenever an application under Section 19 of the Act is filed and the question involved in the said application stands concluded by some earlier decision of the Tribunal, the Tribunal necessarily has to take into account the judgment rendered in earlier case, as a precedent and decide the application accordingly. The Tribunal may either agree with the view taken in the earlier judgment or it may dissent. If it dissents, then the matter can be referred to a larger bench/full bench and place the matter before the Chairman for constituting a larger bench so that there may be no conflict upon the two Benches. The larger Bench, then, has to consider the correctness of earlier decision in disposing of the later application. The larger Bench can over-rule the view taken in the earlier judgment and declare the law, which would be binding on all the Benches [See Jhon Lucas (supra)]."
8. Now there is a divergence of views on the legality of Annexure A7 letter of the Director General of Posts dated 17.5.95, a Division Bench in O.A. 1454/97 has held that this letter being in the nature of an administrative instruction which cannot supplant statutory recruitment rules has no legal validity. My learned Brother is of the opinion that the letter dated 17.5.95 being in the nature of relaxation of the educational qualification prescribed in the recruitment rules, is perfectly valid. Since I do not agree with the view taken by my learned Brother, the disputed point has got to be clarified. As the points involved is of all India repercussion, I am of the view that the matter has to be referred to a Larger Bench. The points that have to be referred to the Larger Bench can be formulated as follows:
(i) Whether the appointment of Extra Departmental Agents as Postman in the 25% seniority quota is by way of direct recruitment or promotion?
(ii) Whether the qualification prescribed for direct recruitment to the post of Postman is applicable to the appointment of E.D. Agents on the post of Postman in the 25% seniority quota ?
(iii) Whether the letter dated 17.5.95 of the D.G., Posts prescribing a minimum educational qualification of 8th standard pass for E.D. Agents for appointment as Postman on the 25% seniority quota is valid and enforceable ?
In view of the divergent views expressed by us, the matter may be placed before the Hon'ble Chairman for constituting a Larger Bench to clarify the following points;
(i) Whether the appointment of Extra Departmental Agents as Postman in the 25% seniority quota is by way of direct recruitment or promotion?
(ii) Whether the qualification prescribed for direct recruitment to the post of Postman is applicable to the appointment of E.D. Agents on the post of Postman in the 25% seniority quota?
(iii) Whether the letter dated 17.5.95 of the D.G., Posts prescribing a minimum educational qualification of 8th standard pass for E.D. Agents for appointment as Postman in the 25% seniority quota is valid and enforceable ?