Central Administrative Tribunal - Ernakulam
Thomas Kurian vs D/O Post on 5 December, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00192/2017
&
Original Application No.180/00819/2017
Tuesday this the 5th day of December 2023
CORAM:
HON'BLE Mr.JUSTICE SUNIL THOMAS, JUDICIAL MEMBER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
Original Application No.180/00192/2017
1. Thomas Kurian,
Son of Kurian, Aged 28 years,
Gramin Dak Sevak Mail Deliverer,
Thazthangady P.O., Kottayam Division.
Residing at Kayappuram, Kumarakom P.O.,
Kottayam District-686 563.
2. Akhil Kumar P D,
Son of Divakaran P B, Aged 27 years,
Gramin Dak Sevak Mail Packer,
Erattupetta Post Office, Kottayam Division.
Residing at Pazhoormuttathil House,
Poonjar P.O., Kottayam District-686 581.
3. Prasanth M,
Son of Murukesan C, Aged 28 years,
Gramin Dak Sevak Mail Deliverer,
Kattachira, Kottayam Division.
Residing at Murukavilasom,
Punnathura EPO, Kottayam-686 583. ...Applicants
(By Advocates Ms.Rekha Vasudevan & Ms.Remya.S.R)
versus
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1. Union of India,
represented by the Secretary to Government of India,
Ministry of Communication & IT, Department of Posts,
New Delhi-110 001.
2. The Chief Post Master General,
Department of Posts, Kerala Circle,
Thiruvananthapuram-695 033.
3. The Assistant Director (Rectt),
Office of the Chief Post Master General,
Department of Posts, Kerala Circle,
Thiruvananthapuram-695 033.
4. The Superintendent of Post Offices,
Kottayam Division, Kottayam-686 001.
5. Soumyamol U.S,
W/o.Shibu P. T, Aged 32 years,
Residing at Puthenpura (H),
Chemmanathukara P.O.,
Vaikom, Kottayam-686 141.
6. K. Deepa,
W/o. P.G. Rejimon,
GDS Branch Postmaster, Kothavara BO,
Vaikom, 686 607, Kottayam Division.
Residing at "Palackal House",
Thalayazham P.O., Vaikom,
Kottayam District-686 607.
7. G. Seena Mol,
W/o. K.G. Biju, Aged 36 years,
GDS Asst. Branch Postmaster,
Vadakkenirappu, Nizhoor-686 612,
Kottayam Division.
Residing at "Nandanam",
Illithondu, Thalayolaparambu P.O,
Kottayam District-686 605.
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8. P.T. Maya,
W/o.Sunilkumar, Aged 46 years,
GDS Branch Postmaster, Mediri,
Ramapuram Bazar-686 576, Kottayam Division.
Residing at "Sreenivas",
Ammakara P.O., Ramapuram Bazar,
Kottayam District-686 576.
9. K.V. Bindumol,
W/o. C.N. Sajeev, Aged 36 years,
GDS Asst. Branch Postmaster,
Malloossery P.O., Kottayam Division-686 041.
Residing at Chirayil Parambil",
Thalayazham P.O, Kottayam District-686 576.
10. Smitha Krishnan,
W/o. P. Rajesh Kumar, Aged 39 years,
GDS Branch Postmaster, Vempally BO,
Kuravilangad, Kottayam Division-686 633.
Residing at "Devaragom", Thazhappillil,
Vempally P.O., Kuravilangad,
Kottayam District-686 633.
11. Sooraj S.,
S/o Surendrababu L., Aged 31 years,
Working as Postman, Vattappara P.O.,
Thiruvananthapuram North Division,
Thiruvananthapuram-695 023.
Residing at Thekkedath Veedu,
Ayirakuzhy P.O., Chithara,
Kollam District-691 559.
12. Jeeva George,
S/o.George K.A., Aged 28 years,
Postman, Pala H.O., Kottayam Division,
Kottayam-686 575.
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13. Aswathi B.S.,
W/o. Amal Vishnu T., Aged 31 years,
Postman, Nattussery S.H. Mount S.O.,
Kottayam Postal Division, Kottayam-686 006.
14. Akhilesh S.J.,
S/o. Sasidharan Pillai C., Aged 29 years,
Postman, Venjaramoodu S.O.,
Thiruvananthapuram North Postal Division,
Thiruvananthapuram-695 607.
15. Amrutha S.,
W/o. Krishnakumar P.G., Aged 31 years,
Postman, Kottayam Head Post Office,
Kottayam Postal Division, Kottayam-686 001. ...Respondents
(By Advocates Mr.O.M.Shalina, SCGSC [R 1-4],
Mr.V.Sajith Kumar & Mr.Vivek.A.V [R5] & [R11-15],
Mr.Shafik.M.Abdulkhadir & D.Ramakrishnan [R6-10])
Original Application No.180/00819/2017
1. Arun P Menon, Aged 29 years,
Son of K G Parameswaran Menon,
Gramin Dak Sevak Mail Deliverer,
Pallippuram Sub Office,
Thiruvananthapuram North Division.
Residing at Edatharavilakathu Veedu,
Konchira P.O., Vembayam,
Thiruvananthapuram-695 105.
2. Subhash K.P, Aged 28 years,
Son of Krishnankutty Nair,
Gramin Dak Sevak Mail Deliverer,
Perunguzhy Sub Office,
Thiruvananthapuram North Division.
Residing at Krishnabhavan, B.N.R.A-175,
N.C.C. Road, Peroorkada P.O.,
Thiruvananthapuram-695 005.
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3. Ajayakumar R, Aged 27 years,
Son of K K Raveendran Nair,
Gramin Dak Sevak Mail Deliverer,
Medical College P.O,
Thiruvananthapuram North Division.
Residing at Divya Bhavan,
Mangalathunada, Nethajipuram P.O.,
Thiruvananthapuram-695 584. ...Applicants
(By Advocates Ms.Rekha Vasudevan & Ms.Remya.S.R)
versus
1. Union of India
represented by the Secretary to Government of India,
Ministry of Communications & IT,
Department of Posts, New Delhi - 110 001.
2. The Chief Post Master General,
Department of Posts, Kerala Circle,
Thiruvananthapuram - 695 033.
3. The Assistant Director (Rectt.),
Office of the Chief Post Master General,
Department of Posts, Kerala Circle,
Thiruvananthapuram - 695 033.
4. The Senior Superintendent of Post Offices,
Thiruvananthapuram North Division,
Thiruvananthapuram - 695 001. ...Respondents
(By Advocate Mr.Anil Ravi)
These applications having been heard on 1 st November 2023, the
Tribunal on 5th December 2023 delivered the following :
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ORDER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER These two O.As are being taken together for consideration and disposal by way of a common order as the issues in both are similar, though the factual details are distinct as they pertain to two separate Divisions of the Kerala Circle of the Department of Posts. The O.A.No.180/192/2017 is taken up for outlining in greater detail as there are a number of pleadings in the said O.A and, ipso facto, it has become the lead O.A.
2. O.A.No.180/192/2017 was filed by three applicants all Gramin Dak Sevaks (GDSs), working in the Kottayam Division of the Kerala Circle of the Department of Posts. At the time of filing the O.A in February/March, 2017 there were only four official respondents named on the other side. Later, many other party respondents from time to time got themselves impleaded in the O.A. The details will be brought out in the course of this order. The reason these three applicants working as GDS Mail Deliverer (GDSMD) or as GDS Mail Packer (GDSMP) filed the O.A was that they were aggrieved by non consideration of their candidature for appointment to the post of Postman in the Kottayam -7- Division, despite what they claimed were large availability of vacancies in the Division. They have submitted that the number of vacancies which had been allotted to be filled up from among the Limited Departmental Competitive Examination (LDCE) qualified GDS like them had been restricted to only 3, whereas, as per the information that they had received through an application under the Peoples Right to Information (RTI) Act, there were as many as a total of 39 vacancies for the post of Postman in the Kottayam Division as on 08.12.2016 in the financial (recruitment) year 2016-2017. However, the respondents restricted the vacancies for the year 2016-2017 to be filled up by direct recruitment from among the LDCE qualified GDS to only 3. Further the respondents had also notified the 39 vacancies for filling up by direct recruitment from open market. The respondents had issued the Annexure A-4 notification in this connection on 11.01.2017 for filling up the vacancies, which the applicants are challenging in the O.A. Hence, the relief sought by the applicants is as follows :
(1) Quash Annexure A-4 notification to the extent it notifies all the 39 vacancies in the cadre of Postman of Kottayam Division, in violation of the Recruitment Rules.-8-
(2) Declare that 50% of the 35 vacancies deducting the four unfilled vacancies of MTS pursuant to the Annexure A-1 notification from the total 39 vacancies, available as on 08.12.2016 is to be earmarked for being filled from among the qualified Gramin Dak Sevaks.
(3) Direct the respondents to fill up those 18 vacancies in the cadre of Postman in Kottayam Division (50% of the 35 vacancies available on 08.12.2016) from the qualified Gramin Dak Sevaks pursuant to Annexure A-1 notification.
(4) To grant such other reliefs as may be prayed for and the court may deem fit to grant, and (5) Grant the cost of this Original Application.
3. The applicants in O.A.No.180/192/2017, as earlier indicated, are working as GDSMD or GDSMP under the 4 th respondent, the Superintendent of Post Offices, Kottayam Division. They entered service as GDS on 27.02.2009, 02.03.2009 and 27.05.2007 respectively. They submit that they have the prescribed qualification for consideration for appointment to the post of Postman. The 3 rd respondent, the Assistant Director (Recruitment), Office of the Chief Postmaster General (CPMG), Kerala had issued a notification, vide Annexure A-1, on 02.08.2016 announcing the holding of a LDCE on 09.10.2016 for appointment to the post of Postman for the vacancies of 2016-2017. The notification at Annexure A-1 also indicated that the posts of Postman and Mail Guard -9- would be filled up through the results of examination. The examination was to be held for the GDS and other departmental officials. The notification at paragraph 5 under the 'Method of Recruitment' also indicated the manner in which the recruitment from among the MTS/GDS etc., would be done. This read as follows :
A. Postman (1) 50% on the basis of Limited Departmental Competitive Examination (LDCE) by promotion from amongst Multi Tasking Staff of the Recruiting Division with three years regular service in the grade including service put in, if any, against an erstwhile Group 'D' post on regular basis as on 1st April of the year to which the vacancy (ies) belong failing which, from amongst Multi Tasking Staff of the neighbouring Division/Unit on the basis of the said Examination, failing which by direct recruitment from 'open market'.
(2) 50% by direct recruitment on the basis of Competitive Examination limited to Gramin Dak Sevaks* of the Recruiting Division who have worked for at least five years in that capacity as on the 1 st April of the year to which the vacancy (ies) belong, failing which from amongst Gramin Dak Sevaks of the neighbouring Division/Unit on the basis of the said Examination, failing which by direct recruitment from 'open market'.
* "Gramin Dak Sevaks are holders of civil posts but they are outside the regular Civil Service due to which their appointment will be by direct recruitment." -10-
4. The applicants submit that they had appeared in the LDCE, pursuant to the Annexure A-1 notification. The 1 st applicant secured 73 marks and was placed at the 5 th position among the candidates who appeared for the examination. The 2 nd applicant had secured 62 marks. It is submitted that the 3 rd respondent, the Assistant Director (Recruitment), Office of the CPMG, Kerala, had issued appointment orders only for the top ranking candidates in the examination and that, thereafter, no further appointments were made from among the GDS. Later, however, the applicants came across some information, gathered under the RTI Act. As per this information supplied by the 4 th respondent, Superintendent of Post Offices, Kottayam the number of vacancies as on 09.10.2016 in the Kottayam Division of Postman was 7. The number of vacancies of Postman as on 08.12.2016 in Kottayam Division however increased to 39. The RTI reply dated 02.01.2017 has been furnished at Annexure A-3 in the O.A. Further, the names and marks of the top 15 candidates who had participated in the LDCE 2016 held on 09.10.2016 for the post of Postman was also procured. The top three names in the list were appointed to the post of Postman. The name of the 1st applicant herein appears at Sl.No.5 of the list. -11-
5. The applicants submit that the reply to the RTI also reveals that there had been a sudden increase in the number of vacancies from 7 on the date of the examination (09.10.2016) to as many as 39 as on 08.12.2016 in the Kottayam Division. Further, as indicated earlier, the reply at Annexure A-3 also revealed that only the first 3 candidates from among the first 15 ranked candidates from among the GDS had been granted appointment to the post of Postman. It is submitted by the applicants that after the competitive examination was conducted more vacancies in the cadre of Postman had arisen, due to the promotion of Postmen to the post of Postal Assistants in December 2016. It was also submitted that out of the total 7 vacancies that existed on 09.10.2016, 4 vacancies were earmarked for promotion for the Multi Tasking Staff. This was as per the rules at paragraph 5 showing the 'Method of Recruitment' in the Notification at Annexure A-1. It is submitted that no Multi Tasking Staff (MTS) had qualified under the said quota. The vacancies earmarked for them thus remained unfilled. However, the 3 vacancies out of the 7 which were kept for the GDS candidates were filled by the first 3 GDS candidates who had qualified.
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6. It is submitted that when the applicants were hoping for their chance to come up for appointment to the post of Postman due to the increase in the number of vacancies, to their shock the 3 rd respondent issued the notification dated 11.01.2017 at Annexure A-4 calling for applications from the open market for direct recruitment to the post of Postman. Online applications invited as per this notification from eligible candidates for direct recruitment to the cadre of Postman in Post Offices and for Mail Guards in the RMS Divisions in Kerala Postal Circle. It is submitted that this recruitment was not limited to those among the GDS/MTS, but was a direct recruitment from the open quota. As per the annexure-I attached to the Notification at Annexure A-4, it was seen that there were a total of 39 vacancies shown with break up as 3 for Scheduled Caste (SC), 1 for Scheduled Tribe (ST), 6 for Other Backward Category (OBC) and 29 for Unreserved (UR) for the Kottayam Division Open Quota 2016-2017. It is submitted that 4 vacancies allotted for promotion from among the MTS had remained unfilled pursuant to the Annexure A-1 notification. However, instead of just the said 4 vacancies, all the vacancies which arose afresh between 09.10.2016 and 08.12.2016 were notified for direct recruitment from the open market quota. It -13- is submitted that this is in contravention of the Recruitment Rules. Annexure A-1 notification had showed that the 50% of the vacancies were earmarked for being filled up from among the GDS who had qualified in the competitive examination. Thus, it is clear that only in the absence of qualified hands would these vacancies be filled up from the open market. However, contrary to this, the 3 rd respondent had chosen to fill up all the vacancies from the open market. It is submitted that the applicants have lost their chance for getting appointment as Postman as a result.
7. It is submitted that the 3 rd respondent should have noted that there was a valid list of qualified GDS who had cleared the test on the date of the Annexure A-4 Notification. Vacancies were available in the cadre of Postman as is clear from the information provided at Annexure A-3 under the RTI Act. However, without earmarking 50% vacancies for the GDS, the 3rd respondent resorted to fill up the vacancies from the open market. It is submitted that this is impermissible in law and has affected the chance of appointment for the applicants. They submit that the vacancies which had been enhanced as on 08.12.2016 to 39, include the 4 vacancies earmarked for promotion from among the MTS but were -14- unfilled. Hence, as on 08.12.2016, if these 4 vacancies are excluded, there were 35 fresh vacancies which had occurred in the Kottayam Division in the cadre of Postman.
8. It is submitted that the data for the period up to 09.10.2016 and 08.12.2016 had been furnished separately in response to the RTI query. It is quite clear from the reply that in between 09.10.2016 and 08.12.2016 fresh vacancies had arisen in the cadre of Postman, of which, 50% should have been earmarked for appointment from the GDS. It is submitted that if this was done, 18 vacancies taking approximately 50% of the 35 fresh vacancies should have been apportioned for appointment from amongst GDS. However, they are being notified for appointment from open market. The respondents were duty bound to adhere to the Recruitment Rules. They cannot deviate from the prescribed quota and whenever a ratio is prescribed for appointment from among the different streams, the same has to be strictly adhered to. It is submitted that the respondent cannot adopt a stepmotherly approach towards the GDS for the reason that they are out of the regular stream of the service. In short, the applicants submit that the Annexure A-4 notification for filling up the 2015-16 vacancies from -15- the open quota has been made in contravention to the Recruitment Rules in so far as it relates to the Kottayam Division and, as such, should be struck down.
9. The three applicants in the other O.A.No.180/819/2017 are Gramin Dak Sevak Mail Deliverers (GDSMDs) similar to the applicants above. They are working in the Thiruvananthapuram North Division of the Department of Posts. They too had appeared for the same examination. It appears that only 8 vacancies were indicated for GDS for promotion/direct recruitment to the cadre of Postman/Mail Guard in 2016-2017 in Thiruvananthapuram North Division, pursuant to the LDCE held on 09.10.2016. These 8 vacancies were broken up as 1 for SC, 2 for OBC, 1 for PH and 4 for UR. As per the applicants in the O.A., from information that has been gathered from their applications under the RTI Act, as many as 67 total vacancies were actually available on 09.10.2016, the date of the LDCE, in the Thiruvananthauram North Division. These vacancies were increased to 77 by 31.12.2016. It is submitted that on 31.12.2016 there were 37 vacancies available to be filled up from among the GDS and MTS candidats, after removing 40 vacancies kept for direct recruitment from the open market. It is -16- submitted that from the replies to the queries in Annexure A-7(a), Annexure A-8(a), Annexure A-10(a) and Annexure A-11(a), it is clear that, during the financial year 2016-2017, as many as 37 fresh vacancies in the cadre of Postman had arisen in the Thiruvananthapuram North Division. It is submitted that as per the Recruitment Rules, 50% of the said fresh vacancies were to be earmarked for appointment from among the GDS. Hence, 18 of the fresh vacancies should have been earmarked for appointment from among the GDS. However, the 3 rd respondent, in contravention of the Recruitment Rules had not notified all the vacancies for the post of Postman in the Thiruvananthapuram North Division for filling up from among the qualified GDS and MTS. This has resulted in a loss of chance for appointment into regular service for the applicants. The applicants, therefore, seek the following relief in the O.A :
(1) Declare that the 50% of the 37 vacancies available as on 31.12.2016 in the post of Postman in Thiruvananthapuram North Division are to be earmarked for being filled up from among the qualified Gramin Dak Sevaks pursuant to the competitive examination conducted as per Annexure A-1 notification.
(2) Direct the respondents to fill up the 50% of the 37 vacancies available as on 31.12.2016 in the post of Postman in Thiruvananthapuram North Division are to be earmarked for being filled up from among the qualified -17- Gramin Dak Sevaks pursuant to the competitive examination conducted on 09.10.2016 as per Annexre A-1 notification.
(3) Direct the 4th respondent to grant appointment to the applicants herein as Postman based on their rankings in the competitive examination conducted pursuant to the Annexure A-1 notification.
(4) To grant such other reliefs as may be prayed for and the court may deem fit to grant and (5) Grant the cost of this Original Application.
10. The respondents have filed their reply statements in both the O.As. As indicated earlier, we will focus more on the pleadings in O.A.No.180/192/2017 as a large number of statements were later filed in the same. Further, some of the selected candidates from the open market recruitment quota have also impleaded themselves in the said O.A.No.180/192/2017. In the main reply statement filed by the respondents in O.A.No.180/192/2017 it is noted that the O.A had been filed by the applicants, who had appeared for the examination for the direct recruitment quota vacancies, which in the Kottayam Division was 3 for the vacancy year 2016-2017 for GDS and 4 in the promotion quota for the MTS. As per the Annexure A-3 document in the O.A., it is clear that the applicants, who are UR candidates, had not qualified within the -18- first three positions. Hence, they were not selected by the respondents for the posts of Postman. It is submitted that the applicants are now raising the issue about the circumstances in which the Annexure A-4 notification for Open Quota Postman Examination had been issued showing 39 vacancies in the Kottayam Division. The contention of the applicants is that they should be considered against these 39 vacancies as per their merit in the examination held on 09.10.2016. However, it is submitted that these 39 vacancies are actually all Open Quota vacancies which were pertaining to the vacancy years from 2011 to 2015-2016. The details in respect of these 39 vacancies in the Kottayam Division have been furnished by a table at paragraph 9 of the reply statement in the O.A. As per these details, there were 37 vacancies out of 39 which were unfilled under the promotion quota from 2011 to 2015-2016 along with 2 vacancies (both physically handicapped) unfilled under the direct recruitment quota. This makes it clear that the total of 39 vacancies were all arising from unfilled vacancies of previous years. It is submitted that no vacancy of 2016-2017 for which the applicant wrote the examination on 09.10.2016 had been included for the open quota recruitment which was held later.
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11. The respondents submit that all these vacancies had been notified in the previous years from 2011 to 2015-2016, but had been unfilled. The total number of actual vacancies in the Kottayam Division from 01.04.2016 to 31.03.2017 were only 7, of which 4 vacancies were given for the promotion quota (MTS) and 3 vacancies were given for the direct recruitment quota (GDS). Hence, the applicants being from the GDS category, can appear only for these 3 vacancies under the direct recruitment quota in the examination. However, as per Annexure A-3, they had not qualified in the merit zone. As was brought out in the O.A by the applicants themselves, 50% of Postman vacancies were to be filled up by promotion, which was restricted to MTS/Group D employees and 50% vacancies were being filled by direct recruitment candidates, restricted to GDS both through a common LDCE. The vacancies left unfilled under the promotion quota were to be filled up by eligible candidates (MTS) of nearby divisions. Similarly, for the vacancies left unfilled under the direct recruitment quota, eligible candidates (GDS) of nearby divisions were to be considered. Even after that, if vacancies were still remaining unfilled either under the promotion or direct recruitment quota, the open market candidates were to be considered. It is -20- submitted that this was how the 39 vacancies had been calculated from previous years for recruitment under the open quota as per the Recruitment Rules.
12. It is submitted by the respondents that from the above it is quite clear that selection and appointment can only be made for announced and notified vacancies. The applicants are attempting to mislead the Tribunal by raising hypothetical contentions and misinterpreting information collected under the RTI Act. If they were having genuine grievances in relation to the actual total number of vacancies, it should have been raised immediately or, atleast, within some reasonable time. The applicants had participated in the examination as per the notification. They are, therefore, estopped from challenging the notification at present. There are sufficient and more cases decided earlier in this regard in relation to applicants having appeared in the examination as per a notification, not being allowed to turn around and challenge the said notification at a later stage. Further, it is submitted that it is settled law that the selection must be confined only to the notified vacancies, as held by the Hon'ble Supreme Court in a catena of decisions including Ashok Kumar & Ors. vs. Chairman, BSRB & Ors., (1996) 1 SCC 283. -21- Further, in relation to the issue raised by the applicants that further vacancies in the cadre of Postman due to the promotion of existing Postmen to the cadre of Postal Assistants in December, 2016 not being taken into consideration at the relevant time, it is submitted that when the vacancies were notified, as per the Recruitment Rules, there were only 7 vacancies, of which 4 vacancies were given for the promotion quota (MTS) and 3 vacancies were given for the direct recruitment quota (GDS). The vacancies under the promotion quota which had been left unfilled, will be later filled up under the open quota.
13. It is once again reiterated by the respondents that no vacancy of 2016-2017 for which the applicants wrote the examination on 09.10.2016, had been included in the Notification for the open quota examination, issued under the Annexure A-4 notification. Explaining the background as to how the Annexure A-4 notification for filling up the open quota vacancies had been released on 11.01.2017, the respondents submit that the Recruitment Rules/provisions in relation to the filling up of Postmen vacancies had been challenged before this Tribunal in O.A.No.100/2013 along with 13 other O.As. All these O.As were dismissed in a common order dated 01.01.2015, with a direction to the -22- respondents to conduct an open quota examination. The respondents could not, however, conduct the open quota examination, since the GDS/petitioners had filed O.P.(CAT)s in the Hon'ble High Court against the order of the Tribunal. These O.P.(CAT)s filed by the GDS/petitioner had been dismissed by a common order dated 22.08.2016 in O.P.(CAT) No.23/2015 and 7 others. The Hon'ble High Court in their judgment had upheld the decision of this Tribunal and had permitted conduct of the open quota Postman examination in Kerala. It is consequent to this judgment, which was passed on 22.08.2016, that the Annexure A-4 notification had been issued. Hence, the 39 vacancies which the applicants were harping on, did not arise in 2016-2017 but came under the open quota as a result of the non filling up of earlier vacancies earmarked for MTS/Group 'D' and GDS as per rules from previous years, ie., 2011 onwards. The respondents submit that from this it is quite clear that no mistake was made by them as was being alleged.
14. Some of the candidates who had qualified and been selected consequent to their appearing in the open quota vacancies examination vide Annexure A-4 for appointment in the Kottayam Division later impleaded themselves as the respondents in the O.A. Similarly, it is to -23- be noted that some other candidates who had qualified among the first 15 candidates in the Annexure A-3 list after appearing in the examination for direct recruitment to the post of Postman from among the GDS also impleaded themselves. These latter candidates who were impleaded as additional respondents 6 to 10 also filed a reply statement. They submitted that they too had been aggrieved by the erroneous reporting of the vacancies by the official respondents despite there being sufficient vacancies in the post of Postman in Kottayam Division. They contested the number of vacancies being allotted to be filled up from among the LDCE qualified GDS being restricted to only 3. They supported the contention on the basis of Annexure A-3 of the O.A (reply to the RTI query) that there were as many as 39 Postmen vacancies, of which, only 7 were reported. From the reported 7 vacancies, 3 vacancies were allotted for the GDS through LDCE and 4 vacancies for promotion from among the MTS through LDCE. They supported the contention made in the O.A that, as per the information received through RTI at Annexure A-3, as on 09.10.2016 (date of LDCE) the actual number of Postman vacancies in Kottayam Division which was 7, had increased to 39 on 18.12.2016, including the 4 unfilled vacancies earmarked for promotion from MTS. Their contention was that between 09.10.2016 to 18.12.2016 -24- 35 fresh vacancies had arisen which was during the vacancy year 2016- 2017 for which the LDCE was conducted. As such, they also submitted that at least 17 vacancies should have been earmarked for filling up by the GDS through LDCE. Only 4 vacancies were to be filled under the open market quota as per the Recruitment Rules as stated at paragraph 10 of the O.A.
15. It is submitted by the additional respondents 6 - 10 that the act of the official respondents in diverting all 39 vacancies for open market recruitment, without earmarking 50% vacancies for the GDS, inspite of the LDCE qualified GDS candidates being available, is arbitrary and against the Recruitment Rules. This act has deprived the additional respondents 6 to 10 of their chance of promotion to the post of Postman, which is an entry to the Department of Posts as departmental staff from GDS. It is also submitted that the orders of the Tribunal and Hon'ble High Court of Kerala produced at Annexure R-3, Annexure R-4 and Annexure R-5 by the official respondents and the issue of estoppel being raised by the official respondents are not applicable in the present case. This is because the number of vacancies had not been notified in the Annexure A-1 Original Notification. The applicants as well as the -25- additional respondents were not challenging the said Annexure A-1 notification. The Annexure R-3, Annexure R-4 and Annexure R-5 judgments were on different aspects, in relation to suitability of the candidates for examination or in relation to notified vacancies, which is not applicable in the present case. The official respondents had themselves stated that the vacancies which arose due to the promotion of existing Postmen to the cadre of Postal Assistant in December, 2016 had not taken into consideration. This evidenced that some vacancies which had arisen during the vacancy year 2016-2017 were not considered for which the additional respondents were qualified. Hence on these grounds, it is submitted that the Annexure A-4 was liable to be quashed to the extent it had notified all the 39 vacancies of Kottayam Division for appointment through open market. Further, it is submitted that the said vacancies should be recalculated and the proper quota of vacancies as per Recruitment Rules should be filled up by the LDCE qualified GDS candidates.
16. The contentions by the applicants and the respondents at Sl.No.6 to 10 were countered by the official respondents in the additional reply statement and by production of other documents. The -26- official respondents produced Annexure R-6 and Annexure R-7 in the additional reply statement in which by a tabular statement they clarified as to how the 7 promotion/direct recruitment vacancies for 2016-2017 were calculated. It is submitted that these vacancies had been calculated on the basis of the retirement of some Postmen as well as the anticipated promotion to Postal Assistant from Postman during the year. They have indicated that there were 5 retirement vacancies which arose at the time when the LDCE for the post of Postman was conducted on 09.10.2016. Further, there were 6 promotion vacancies at the time when the LDCE for the post of Postman was conducted on 09.10.2016. These 6 promotion vacancies arose due to promotion of Lower Grade Officials (LGO) to the cadre of Postal Assistants. However, at the time of notification vide Annexure A-1 and examination on 09.10.2016 only 2 clear vacancies could be counted out of these due to the pendency of three O.As (O.A.No.180/567/2016, O.A.No.180/584/2016 and O.A.No.180/577/2016) in this Tribunal. The O.As had been filed by the applicants therein to count their regular/qualifying service from the date of occurrence of vacancy in order to enable them to write the LGO examination dated 31.07.2016. Thus, in this circumstances at the time of LDCE examination which was -27- conducted on 09.10.2016 only a total of 7 vacancies in the Kottayam Division could be reckoned ie., 5 retirement vacancies and 2 clear promotion vacancies.
17. It is submitted that as per the Recruitment Rules, these 7 vacancies were apportioned; 4 for promotion quota (MTS/Mail Guards) and 3 for the direct recruitment quota (GDS). However, the applicants did not qualify in the first 3 positions within the zone of merit and were thus not appointed. Later, the three O.As which were pending in relation to the LGO Examination along with 23 other O.As were dismissed by common order dated 22.11.2016 by this Tribunal, consequent to which promotion of 4 officials to Postal Assistants from Postman were effected only on 11.02.2017, at the fag end of the financial year. It is submitted that specifically, therefore, there were 6 (4 + 2) vacancies which arose due to promotion to Postal Assistants from Postman between 01.04.2016 to 31.03.2017 in Kottayam Division. However, only 2 clear vacancies could be notified in connection with the LDCE held on 09.10.2016. The remaining 4 vacancies were included in the vacancy calculation for the year 2017-2018.
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18. In addition to the above, it is also to be noted that 5 other candidates, who had participated, qualified and were appointed after the written test for Postman pursuant to the Annexure A-4 Notification dated 11.01.2017 was held, results of which were published on 28.10.2019 impleaded themselves in the O.A.No.180/192/2017. They were placed as additional respondents 11 to 16 in the O.A. In view of the interim order passed by this Tribunal on 10.03.2017, the appointment of these additional respondents 11 to 16 was made subject to the final outcome of the O.A. In other words, the respondents at Sl.No.11 to 16 were appointed under the open market quota and joined service after qualifying in the examination pursuant to Annexure A-4 notification. However, their appointment was treated as provisional since this O.A was still pending. They filed a M.A for direction for their regularization in service in August, 2023 as by then they had completed more than 3 years of service having joined with effect from 16.12.2019. The M.A.No.180/737/2023 was considered by this Tribunal and allowed on 05.09.2023, on the condition that inter-se rights between the parties would be worked out at the time of final hearing of the matter. After this development, some of the other qualified candidates pursuant to Annexure A-4 notification also filed similar applications to implead -29- themselves in the O.A., which are still pending. They also filed M.As to extend the benefit of the above order dated 05.09.2023 to them. However, since this Bench is taking up and disposing the O.As by this order, all these prayers are being considered along with this final orders itself.
19. In respect of the other O.A.No.180/819/2017 the official respondents in their reply statement have submitted that for Thiruvananthapuram North Division 18 vacancies which arose during the period from 01.04.2016 to 31.03.2017 were identified and had been apportioned as 9 for the promotion quota from among the MTS officials and 9 for direct recruitment quota from among the GDS officials and for compassionate appointment. Further, the break up for the direct recruitment quota for the GDS was UR - 4, OBC - 2, SC - 1 and PH - 1 making a total of 8 since one of the vacancies in the direct recruitment quota from among the GDS officials had been kept for compassionate appointment. Further, against the 4 UR vacancies, it appears that 4 candidates who had secured 77, 73, 67 and 63 marks had been selected as per their merit position, as shown in Annexure A-3 produced by the applicants. The applicants themselves did not qualify in the zone of -30- consideration by virtue of their merit position in the examination. Hence, they could not be considered for appointment as Postmen in the Thiruvananthapuram North Division. The official respondents have taken similar contentions as in O.A.No.180/192/2017 in their reply statement to the effect that the candidates cannot challenge the conduct of a selection after participating in the selection and failing. They have relied on Om Prakash Shukla vs. Akhilesh Kumar Shukla, (1986) Supp. SCC 285 and Chandra Prakash Tiwari vs. Shakuntala Shukla (2002) 6 SCC 127. It is submitted that the observations in these two judgments by the Hon'ble Supreme Court are squarely applicable in the instant case, in so far as the applicants are challenging the vacancy position after participating in the examination knowing that they have not come within the zone of consideration. Further, it is trite law that the recruitment cannot be made over and above the notified vacancies.
20. It is also submitted by the official respondents that the above O.A is also liable to be dismissed on merit. The respondents pointed out that 3 GDSMDs who had filed O.A.No.180/819/2017 had been engaged in 2010/2011. They fulfilled the condition of five years of regular engagement on 01.04.2016 and become eligible to appear in the -31- examination for the vacancies of 2016-2017 only. Hence, they are estopped from raising any averments in respect of earlier vacancies, as they were not eligible to appear in any examination to fill up those vacancies. The respondents have also submitted at paragraph 6 of the reply in the O.A that 18 vacancies had arisen in the cadre of Postman during the period from 01.04.2016 to 31.03.2017 as per the details given by them in the paragraph due to the retirements/promotions. As per the extant Recruitment Rules, the 18 vacancies which arose during the period from 01.04.2016 to 31.03.2017 were apportioned as 9 for departmental quota from among the MTS officials and 9 for direct recruitment quota from among the GDS officials and for compassionate appointment. Since one vacancy under direct recruitment quota was identified for compassionate appointment, only 8 vacancies were kept for direct recruitment quota from among the GDS. Out of these 8 vacancies, 6 were filled up from GDS candidates of the recruiting division ie., Thiruvananthapuram North. Further, one unfilled SC vacancy and one PH vacancy were filled up from the neighbouring division, as per the provisions in the Recruitment Rules. Thus, all the 8 vacancies declared for selection through competitive examination from among the GDS were duly filled up.
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21. Further clarifying the position it is submitted that for identification of vacancies and conduct of the examination only clear vacancies can be taken in the year of recruitment. This is also stipulated in the Department of Personnel & Training (DoP&T) O.M.No.22034/1/2006-Estt.(D) dated 15.05.2007 that "the vacancies to be taken into account should be the clear vacancies arising in a post/grade/service due to death, retirement, resignation, regular long term promotion and deputation or from creation of additional posts on a long term." In this case, the notification for the LDCE for promotion to the cadre of Postman/Mail Guard for the vacancies of 2016-2017 was issued vide Annexure A-1 Memo dated 02.08.2016 and the examination itself was held on 09.10.2016. As is evidenced from Annexure A-6 produced by the applicants, results of provisionally admitted candidates which were withheld due to pendency of court cases were declared only on 22.12.2016 ie., after the examination to the cadre of Postman had been conducted. Hence, the vacancies which were likely to be caused due to promotion in respect of withheld results, were not taken into account in the LDCE held on 09.10.2016. It is submitted in this regard that a similar issue had been considered by this Tribunal in O.A.No.442/2014 and it was held that "vacancies as a result of retirement can be reasonably anticipated but -33- vacancies on account of LDCE cannot be anticipated for inclusion, as the number of persons qualifying is an unknown factor." The date of disposal of court cases being an unknown factor, the vacancies to be caused in respect of withheld results cannot be included. It is further submitted that the contentions made in the O.A that 13 Postmen were granted promotion as Postal Assistants was not correct as not all the lower grade officials who were promoted to the cadre of Postal Assistants were Postmen. In fact, the term Lower Grade Officials ('LGO') includes both Postmen and MTS and 2 MTS officials were promoted to the cadre of Postal Assistants. It is submitted that the applicants have misunderstood that all those who were successful in the LGO examination were Postmen, which was not factually correct.
22. Further, the respondents in O.A.No.180/819/2017 have submitted that the averment of the applicants that there were 67 vacancies as on 09.10.2016 and that the respondents are therefore liable to notify all these vacancies for the examination held on 09.10.2016, is misleading. It is submitted that these 67 vacancies which were mentioned in the RTI reply included the unfilled departmental quota vacancies of earlier years. These vacancies have to be filled up only as per the provisions of the -34- Recruitment Rules. A notification vide Annexure A-9 for filling up 40 vacancies (2011 - 5, 2012 - 18, 2013 - Nil, 2014 - 4 and 2015 - 13) from the open market had already been issued. The examination was also held on 07.05.2017. Hence, 40 vacancies out of the 67 vacancies had been kept aside for filling up from open market recruitment due to the non filling up of vacancies in the previous years. That apart, it is submitted that 24 vacancies that arose during 2013 were kept as 'skeleton', for being abolished as per the policy of the Government under the Scheme of Optimization of direct recruitment vacancies. Hence, it is submitted that, as indicated earlier, there were only 18 clear vacancies for the LDCE 2016-2017, of which 17 vacancies (ie., 9 + 8) were declared for recruitment under the departmental quota (MTS) and direct recruitment quota (GDS) respectively. It is submitted that having obtained some details under the RTI Act, the applicants are confusing the number of vacancies in the Postman cadre with the number of vacancies that can be notified for the examination during a specific year. It is submitted that the applicants have no claim for any vacancy other than the clear vacancies which had arisen from 01.04.2016 to 31.03.2017. They also failed to take into account that 24 posts were earmarked for abolition. There is no provision to treat these posts as vacant. Similar -35- contentions on the above lines with reference to judgments/orders of this Tribunal have been made by the respondents in the remaining part of their reply statement.
23. We have carefully considered all these above contentions. On balance, we are of the opinion that the applicants in both the O.As are taking advantage of responses to very carefully crafted questions submitted by them under the Right to Information Act Applications. They have used these replies to put forth the contentions in the O.As. We would agree with the point made by the respondents that it is not sufficient to just show that certain vacancies existed at a particular point of time during the year 2016-2017 and, thereby, arrive at conclusions that part of these vacancies are available to be filled up by those who had qualified in the LDCE held for the year 2016-2017 to fill up vacancies of that year from among the GDS candidates. From the details provided and outlined above, it is quite clear that these so called additional vacancies had arisen mainly due to a backlog of vacancies which could not be filled up from previous years (almost from 2011 onwards). These vacancies arose during the course of 2016-2017 due to finalization of -36- Court cases during the year. Hence they were available for being notified only as 'open market quota' vacancies as per the extant Recruitment Rules.
24. The Recruitment Rules in this regard, as applicable at that particular point of time, are quite clear; that promotion or direct recruitment by LDCE vacancies which could not be filled up by the MTS or GDS of a particular Division or by its neighbouring Division, would therefore, have to be notified for filling up through open market recruitment. This process could not take place for many years, mainly due to filing of Court cases including some challenging the Recruitment Rules itself, as has been brought out earlier. Many of these cases were before this Tribunal as well as before the Hon'ble High Court of Kerala. Thus making use of the final disposal of these cases to contend that the number of vacancies had, therefore, increased to 67 in Thiruvananthapuram North Division or to 39 in Kottayam in the two O.As is plainly not correct. In fact, in the Thiruvananthapuram North Division, it appears that there were only 40 vacancies for filling under the open market quota. The respondents had assigned 24 further vacancies, which were earmarked for abolition as an insurance against -37- possible adverse court orders. These were, in other words, in their nomenclature 'skeleton' vacancies against excess posts on an establishment review.
25. At this stage we should also note that the higher judicial forums and this Tribunal have passed judgments/orders in a catena of cases that the creation/abolition or filling up of vacancies or resizing existing strength and bringing it up to sanctioned strength etc., are all steps very clearly within the remit and powers of the competent administrative authorities. Hence, the contentions that there were 67 vacancies which suddently rose to 77 vacancies in a few days in the Thiruvananthapuram North Division or that there were 39 vacancies in the Kottayam Division available for adjusting those who had qualified the LDCE among the GDS candidates is simply something that cannot be taken on face value. The respondents are to follow the Rules and Guidelines and cannot keep declaring more vacancies to suit individual claims of the year. Court cases, which are pending, make the whole issue even more complicated. Hence, at the time of identifying the vacancies, the respondents can only identify (as per the DoP&T circular relied upon earlier) 'clear' vacancies which may consist mainly but not only retirement but also promotion -38- vacancies, which are not subject to Court cases etc. Other unanticipated vacancies which may arise due to finalization of Court cases during the year can only be included in the vacancies of the next year. What is in other words to be ensured is only that this process of identification of vacancies was not arbitrary or against natural justice.
26. We do not find in the context of all the points as brought out above, that there has been any error committed by the respondents or that the action taken affecting the applicants concerned in both the Divisions was wrong. Ultimately the simple fact of the matter is they could not qualify on merit against the actual vacancies as identified available for the GDS. Often we have pointed out that it is unclear why some applicants spend such time and effort to come to this Tribunal with contentions relying on replies given to RTI Applications, which is dependent on the response given to how a specific question is formulated. After having worked so many years in the Department in the capacity of GDS, the applicants should have been normally well aware about the method and process by which vacancies that are available within their Division would be calculated as well as the basis on which the Notifications to fill up the open market vacancies are issued. -39- Anyway, it is not for us to explore such individual motivations behind filing of O.As but to deal with such matters on merit and as per the contentions of both sides. We have attempted to do so above.
27. Hence, in view of all the above careful considerations, we do not find that there has been any mistake committed by the respondents in the identification and notification of the vacancies for the year 2016-2017 earmarked for direct recruitment among the GDS to the posts of Postman in the Thiruvananthapuram North Division and Kottayam Division as contended in the two O.As under consideration. The respondents have clearly been able to establish the basis on which they have calculated/estimated the vacancies and why they have also filled the same on that basis. We, therefore, dismiss both the O.As. Further, all the pending M.As., Nos.180/831/2023, 180/832/2023, 180/883/2023 & 180/884/2023 in O.A.No.180/192/2017 are also closed. We make no order as to costs.
(Dated this the 5th day of December, 2023)
K.V.EAPEN JUSTICE SUNIL THOMAS
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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List of Annexures in O.A.No.180/00192/2017
1. Annexure A-1 - A copy of the Notification No.RECTT/12-2/2016 dated 02.08.2016 issued by the 3rd respondent.
2. Annexure A-2 - A copy of the application dated 08.12.2016 submitted by Sri.Binoy George to the 4th respondent with translation.
3. Annexure A-3 - A copy of the Letter No.CPT/RTI/88-2016 dated 02.01.2017 issued by the 4th respondent.
4. Annexure A-4 - A copy of the Notification No.RECTT/12- 2/OQ/2016 dated 11.01.2017 issued by the 3 rd respondent along with the Annexure-I thereof.
5. Annexure R-1 - A copy of the order dated 01.01.2015 in O.A.No.100/2013 and connectd cases.
6. Annexure R-2 - A copy of the common judgment in O.P.(CAT) No.23/2015 and connected cases.
7. Annexure R-3 - A copy of the order dated 21.11.2007 in O.A.No.260/2007.
8. Annexure R-4 - A copy of the order dated 04.12.2012 in O.A.No.211/2011.
9. Annexure R-5 - A copy of the judgment dated 29.01.2014 in O.P. (CAT) No.1072/2013.
10. Annexure R-6 - A copy of the tabular form for Open Quota Direct Recruitment Vacancies 2015-16 as in Annexure A-4.
11. Annexure R-7 - A copy of the tabular form for vacancies in Annexure A-1 Notification for promotion through LDCE for the year 2016-17.
12. Annexure R-8 - A copy of the tabular form for recruitment through LDCE to the post of Postal Assistant.
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13. Annexure R-9 - A copy of the Department of Posts (Postman & Mail Guard) Recruitment Rules, 2010.
14. Annexure R-10 - A copy of the Department of Posts (Postman & Mail Guard) Recruitment (Amendment) Rules, 2012.
15. Annexure R-11(a) - A copy of the relevant pages of the order No.Rectt/12-2/OQ/2019 dated 28.10.2019 declaring the results of direct recruitment examination for Postman/Mail Guard vacancies held on 07.05.2017 by the 5th respondent herein.
16. Annexure R-11(b) - A copy of the relevant pages of the provisional appointment Memo No.B2/Rectt/Postman/OA 2017 dated 24.12.2019 of the Miscellaneous Applicants herein issued by the 7 th respondent.
17. Annexure R-11(c) - A copy of the relevant pages of the Notification No.Rectt/10-3/2023 dated 23.01.2023 issued on behalf of the 7th respondent.
18. Annexure R-11(d) - A copy of the Rectt/10-3/2023 dated 10.07.2023 issued on behalf of the 5th respondent.
19. Annexure R-16(a) - A copy of the relevant pages of the order No.Rectt/12-2/OQ/2019 dated 28.10.2019 declaring the results of direct recruitment examination for Postman/Mail Guard vacancies held on 07.05.2017 by the 5th respondent herein.
20. Annexure R-16(b) - A copy of the relevant pages of the Notification No.Rectt/10-3/2023 dated 23.01.2023 issued on behalf of the 7th respondent.
21. Annexure R-16(c) - A copy of the Rectt/10-3/2023 dated 10.07.2023 issued on behalf of the 5th respondent.
22. Annexure MA-1 - A copy of the relevant pages of the Notification No.Rectt/10-3/2023 dated 23.01.2023 issued on behalf of the 7th respondent.
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23. Annexure MA-2 - A copy of the Notification No.Rectt/10-3/2023 dated 10.07.2023 issued on behalf of the 5th respondent. List of Annexures in O.A.No.180/00819/2017
1. Annexure A-1 - A copy of the Notification No.Rectt/12-2/2016 dated 02.08.2016 issued by the 3rd respondent.
2. Annexure A-2 - A copy of the Office Letter No.Rectt/12-2/2016 dated 03.10.2016 issued by the 3rd respondent along with the Annexure.
3. Annexure A-3 - A copy of the list of GDS who have passed the Postman Exam held on 09.10.2016 in Thiruvananthapuram North Division.
4. Annexure A-4 - A copy of the Memo No.B3/Rectt/2016-17 dated 31.10.2016 issued by the 4th respondent.
5. Annexure A-5 - A copy of the Memo No.Rectt/10-3/2015-16 dated 27.09.2016 issued by the 3rd respondent.
6. Annexure A-6 - A copy of the Memo No.Rectt/10-3/2015-16(Pt) dated 22.12.2016 issued by the 3rd respondent.
7. Annexure A-7(a) - A copy of the application dated Nil submitted by the 1st applicant to the Public Information Officer under the 4 th respondent.
8. Annexure A-7(b) - A copy of the Letter No.CCC/TVN/RTI/R- 30/17 dated 31.03.2017 issued by the Public Information Officer under the 4th respondent.
9. Annexure A-8(a) - A copy of the application dated Nil submitted by the 1st applicant.
10. Annexure A-8(b) - A copy of the Letter No.CCC/TVN/RTI/R- 31/17 dated 31.03.2017 issued by the Public Information Officer under the 4th respondent.
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11. Annexure A-9 - A copy of the Notification No.RECTT/12- 2/OQ/2016 dated 11.01.2017 issued by the 3rd respondent.
12. Annexure A-10(a) - A copy of the application dated Nil submitted by the 1st applicant.
13. Annexure A-10(b) - A copy of the Letter No.CCC/TVN/RTI/R- 48/17 dated 12.05.2017 issued by the 4th respondent.
14. Annexure A-11(a) - A copy of the application dated Nil under the Right to Information Act submitted by the 1st applicant.
15. Annexure A-11(b) - A copy of the Letter No.CCC/RTI/R-69/17 dated 19.06.2017 issued by the Public Information Officer under the 4 th respondent.
16. Annexure A-12 - A copy of the Letter No.66-24/2013-SPB-1 dated 27.07.2016 issued by the 1st respondent.
17. Annexure R-1 - A copy of the Department of Posts (Postman and Mail Guard) Recruitment Rules, 2010 along with the amendment dated 28.06.2012.
18. Annexure R-2 - A copy of the order of the Hon'ble Tribunal in O.A.No.180/442/2014 dated 31.08.2016.
19. Annexure R-3 - A copy of the Letter No.Rectt/12-2/2016 dated 07.03.2017.
20. Annexure R-4 - A copy of the Letter No.Est/1-7/2016 dated 06.12.2016.
21. Annexure R-5 - A copy of the Memo No.A/SC/2005-2008 dated 08.06.2017.
22. Annexure R-6 - A copy of the common order dated 07.11.2017 in O.A.No.284/2014.
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