Central Administrative Tribunal - Ernakulam
Mathew P.Varghese vs Union Of India on 31 May, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION NO. 180/00461 of 2014
Tuesday this the 31st day of May, 2016
CORAM
Hon'ble Mr. Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs. P. Gopinath, Administrative Member
Mathew P.Varghese, S/o Late K.Geevarghese Vaidyan,
aged 38 years, Postman, Punalur PO, Pathanamthitta
residing a Padinjare Veedu, Alayamon, PO Anchal,
Kollam-691306.. .... Applicant
(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-695033.
3 The Senior Superintendent of Post Offices,
Pathanamthitta Postal Division,
Pathanamthitta-689645.
. . . .. Respondents
(By Advocate Mr. SRK Pathap, ACGSC )
This application having been finally heard on 26.5.2016, the Tribunal on
31.05.2016 delivered the following
ORDER
Per: Justice N.K.Balakrishnan, Judicial Member The applicant entered service as Gramin Dak Sevak Mail Carrier (GDSMC for short). He had taken part in the examination for the post of Postman against the vacancies of the year 1996-2005 which was notified for physically handicapped candidates. The applicant is a physically handicapped person. Annexure A1 notification for that purpose was issued. Pursuant to the same, examination was held on 6.9.2009 and the results were published vide Annexure A2. The applicant had scored reasonably well but his appointment was delayed for the reason that he had not scored 45% marks for one subject. The relaxed standards as applicable to SC/ST persons is to be extended to physically handicapped candidates. Therefore, respondents conducted a review and granted benefit to the applicant in 2011 but it was unnecessarily delayed for administrative lapses. The applicant and others were declared to have qualified the examination held on 6.9.2009. It was stated that the seniority will be fixed just below the candidates who were qualified in the special Postman examination held on 6.9.2009 vide Annexure A3. The seniority of the applicant was fixed at Sl.No.79 just below the other physically handicapped candidate but his date of appointment was not notionally fixed with effect from the date of appointment of other selected candidates. Though representation was given the applicant's request was not allowed. Hence he has approached this Tribunal contending that he is entitled to be granted notional service with effect from 15.10.2009, the date of promotion of other candidates in the special examination held on 6.9.2009 and also for consequential benefits.
2. The claim is resisted by the respondents contending as follows.
The applicant was originally appointed as GDSMC w.e.f. 17.11.1997 and he was working as Gramin Dak Sevak Branch Post Master (GDSBPM for short). As directed by this Tribunal in OA 713/2007, a special examination for recruitment to the cadre of Postman under Physically Handicapped quota was held on 6.9.2009. The applicant was one among the four candidates who appeared for the examination from Pathanamthitta Division. The minimum qualifying marks for each paper is 22.5 out of 50. Among the four candidates one Geevarupan NS who got 98 marks out of 150 was selected against Orthopaedically Handicapped vacancy and appointed as Postman under Physically Handicapped quota as per Annexure A2. If sufficient number of persons with disabilities are not available on the basis of the general standard to fill up all the vacancies reserved for them, candidates belonging to the Physically Handicapped category have to be selected on relaxed standards to fill up the remaining vacancies reserved for them provided they are not found unfit for such post or posts. No specific orders were available as to whether the relaxed standard available to SC/ST candidates can be made applicable to the Physically Handicapped persons in the matter of promotion under departmental quota. As such the issue was taken up with the Ist respondent. It was clarified as per Annexure A1 that relaxed standard may be applied to the PH candidates also. Hence the respondents decided to review the result of the PH candidates who had not qualified in the Postman examination held on 6.9.2009, 13,9,2009, 18.10.2009, 8.11.2009 and 22.12.2009 so as to assess their suitability for being appointed against the unfilled PH vacancies. A high power committee consisting of 2 nd respondent and DPS HQ was convened on 6.6.2011. The results of the PH candidates who appeared for the special examination were reviewed under relaxed standards. It was decided to fix the seniority of the candidates selected under the relaxed category below all those candidates who had qualified in the special Postman examination held on 6.9.2009. The applicant was directed to undergo a course of training for 10 days from 20.6.2011 to 29.6.2011 and thereafter the applicant joined as Postman on 30.6.2011. His seniority was fixed just below Mr.Geevarupan. Since the applicant assumed charge as Postman on 30.6.2011 he is not entitled to get notional service from 15.10.2009 as claimed.
3. A rejoinder was filed by the applicant refuting the averments in the reply statement. An additional reply statement was filed by the respondents denying the averments raised in the rejoinder.
4. The point for consideration is whether the applicant is entitled to be granted notional service w.e.f. 15.10.2009 the date of promotion of other candidates in the special examination held on 6.9.2009?
5. We have heard the learned counsel appearing for both parties and have gone through the pleadings and documents on record.
6. There is no dispute regarding the special examination held on 6.9.2009 pursuant to the direction given by this Tribunal. It is also not disputed that there were two vacancies earmarked for the PH candidates. It is also not disputed that among the 4 persons who participated in the examination, the first person Geevarupan alone had secured the qualifying marks but others did not get the qualifying marks. Since Geevarupan had secured the required marks he was selected and promoted as Postman.
7. It is vehemently argued by the learned counsel for the applicants that the physically handicapped persons were entitled to get relaxation in the marks in the examination like that of the SC/ST candidates. Subsequently a decision was taken by the respondents whereby the relaxed standard as applicable to SC/ST candidates was made applicable to PH candidates as well. Geevarupan who also appeared for the examination for appointment under the PH quota had passed the examination even without relaxation and so he was appointed w.e.f. 15.10.2009. It is not disputed that there were two vacancies of PH persons in the Pathanamthitta Division Therefore, it is contended by the applicant that if relaxed standard as applicable to SC/ST candidates was made applicable to PH candidates, then certainly the applicant could have been appointed as Postman under PH/OH quota alongwith Geevarupan, though his position may be just below that of Geevarupan.
8. As per Annexure A4 list, the applicant who appears at Sl.No.79 is seen just below Geevarupan who is at Sl.No.78. The date of entry of Geevarupan as Postman was shown as 15.10.2009 whereas in the case of the applicant, the date was shown as 30.6.2011. According to the respondents since the relaxed standard was made applicable and the committee constituted for that purpose took a decision to consider for promotion of applicant in 2011, the applicant is not entitled to get notional service w.e.f. 15.10.2009. Respondents would contend that the High Power Committee consisting of 2 nd respondent and DPS HQ was convened on 6.6.2011 and the results of the PH candidates who appeared for the special examination were reviewed under relaxed standards on that date, as can be seen from Annexue R3 and so the claim now made by the applicant that his notional service as Postman should be reckoned from 15.10.2009 is without any basis. But this contention is stoutly refuted by the learned counsel for the applicant pointing out that the relaxed standard to the PH candidates as applicable to SC/ST candidates should have been followed in 2009 itself and when the subsequent review was made in respect of the candidates who had participated in the examination in September, 2009 the placement of the applicant reckoning his service only w.e..f. 30.6.2011 is unjust and unreasonable. According to the respondents since the applicant was granted promotion based on the decision of High Power Committee held on 6.6.2011 and since the applicant assumed charge as Postman on 30.6.2011 his claim for deemed service from 15.10.2009 is legally unsound and unsustainable.
9. The applicant was just below Geevarupan on the ground that he had participated in the examination held in September, 2009 and that the applicant was denied promotion only on the ground that he did not secure the qualifying marks under merit quota. In other words, the relaxed standard was not made applicable at that point of time. When relaxed standard was made applicable and when the applicant was declared as passed, then certainly it should take effect from 15.10.2009 itself, when Geevarupan was promoted. The only relief sought for by the applicant is that since he was placed immediately below Geevarupan who was the other candidate who participated in the examination held in September, 2009, it is only just and reasonable that he is placed immediately below Geevarupan but his notional service should be reckoned from 15.10.2009 since he had participated in the very same examination in which Geevarupan was selected and appointed.
10. The learned counsel for the applicant has relied upon a decision of the Division Bench of the Kerala High Court in Chandran Pillai Vs. Union of India - 2015(4) KHC 851 Though the facts are not exactly identical, there also it was a claim of the PH candidate to the post of Postman that was considered. The petitioner therein was granted notional promotion as Postman from 1997 in a vacancy earmarked for visually handicapped persons in Thirvalla Division. In Pathanamthitta Division there were two posts, one post was filled up by appointment of Geevarupan. The other post was then available. The applicant was the person who even according to the respondents was posted in the 2 nd vacancy which was available in 2009. itself. No doubt the applicant will not be entitled get pecuniary benefits (arrears of pay and allowances) on the strength of such ante-dated promotion. But he is entitled to continuity of service from 15.10.2009.
11. In the result this OA is allowed. It is declared that the applicant is entitled to get notional service as Postman w.e.f 15.10.2009, the date of promotion Shri Geevarupan. It is made clear that the applicant is not entitled to get arrears of pay and allowances but he would be entitled to get continuity of service from 15.10.2009 and that his position would be just below Geevarupan as shown in Annexure A4 seniority list. No order as to costs.
(Mrs.P. Gopinath) (N.K. Balakrishnan) Administrative Member Judicial Member kspps