Central Administrative Tribunal - Ernakulam
M.D. Valsa vs The Senior Supdt. Of Post Offices on 9 February, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 744 of 2009
Tuesday, this the 9th day of February, 2010
CORAM:
Hon'ble Mr. George Paracken, Judicial Member
Hon'ble Mr. K. George Joseph, Administrative Member
M.D. Valsa,Aged 49 years, W/o. Varughese,
Part Time Sweeper Ayyanthole M.D.G.,
Residing at Muriyaden House,
Elthuruth P.O., Thrissur - 680 611. ..... Applicant
(By Advocate - Mr. P.C. Sebastian)
V e r s u s
1. The Senior Supdt. of Post Offices, Thrissur
Division, Thrissur - 683 001.
2. The Inspector Posts, Thrissur North
Sub Division, Thrissur - 680 003.
3. The Union of India, represented by Secretary to
Govt. of India, Ministry of Communications,
Department of Posts, New Delhi. ..... Respondents
(By Advocate - Mr. George Joseph, ACGSC)
The application having been heard on 09.02.2010, the Tribunal on the
same day delivered the following:
O R D E R
By Hon'ble Mr. George Paracken, Judicial Member -
The applicant in this OA is a Part Time Casual Labour under the Ayyanthole Post Office is seeking a declaration that she is eligible and entitled to be considered for appointment as GDS Mail Packer, Ayyanthole in preference to outsiders in terms of Annexure A-3 DG, Posts letter No. 17- 141/88-EDC & Trg, dated 6th June, 1988 which reads as under:-
"(28) Preference to casual labourers in the matter of appointment as ED Agents.- According to the prevalent Recruitment Rules governing the cadre of Group 'D' the order of preference among various segments of eligible employees is as under-
(a) Non-test category
(b) ED employees
(c) Casual labourers
(d) Part-time casual labourers.
2. Since the number of vacancies of Group 'D' is limited and the number of ED employees eligible for recruitment as Group 'D' is comparatively large, the casual labourers and part-time casual labourers hardly get any chance of their being absorbed as Group 'D'.
Thus majority of casual labourers with long service are left out without any prospect of their getting absorbed in Group 'D' cadre.
3. Keeping the above in view, a suggestion has been put forth that casual labourers, both full and part-time should be given preference for recruitment as Extra-Departmental Agents, in case they are willing, with a view to afford the casual labourers a chance for ultimate absorption as Group 'D'.
4. The suggestion has been examined in detail and it has been decided that casual labourers, whether full-time or part-time, who are willing to be appointed to ED vacancies may be given preference in the matter of recruitment to ED posts, provided they fulfill all the conditions and have put in a minimum service of one year. For this purpose, a service of 240 days in a year may be reckoned as one year's service. It should be ensured that nominations are called for from Employment Exchange to fill up the vacancies of casual labourers so that ultimately the casual labourers who are considered for ED vacancies have initially been sponsored by Employment Exchange."
2. The brief facts for the adjudication of this OA are as under:-
A) The applicant has been working as a Part Time Sweeper at Ayyanthole Post Office continuously from September, 1996. However, no formal appointment orders have been issued in her favour. She was being paid wages at daily rated basis and was continuing for the last 13 years without any objection from any quarters. She has also filed the Annexure A-1 certificate issued by the Post Master, Ayyanthole stating that she has been working as Part Time Contingent Sweeper in that office continuously from 1996. She has also claimed that she is a Part Time Casual Labour as envisaged in terms of Director General of Posts letter at Annexure A-2 No. 45-24/88 SPB-I, dated 17.5.1989 which reads as under:-
"Copy of DG Dept. of Posts, New Delhi letter No. 45- 24/88 SPB-I, dated 17.5.1989 Sub:- As above.
Sir, I am directed to pay that reference have been received seeking clarification as to which class of workers should be treated as full time or part time casual labourers.
2. It is hereby clarified that all daily wagers working in post offices or in RMS offices or in administrative officers under different designations (mazdoor, casual labourer outsider) are to be treated as casual labourers. These casual labourers who are engaged for a period of less than 8 hours a day should be described as part time casual labourers. All other designations should be discontinued.
3. Substitutes engaged against absentee should not be designated as casual labourers, for purposes of recruitment to Group D posts, substitutes should be considered only when casual labourers are not available. That is, substitutes will rank list in priority, but will be above outsiders. In other words, the following priority should be observed.
i. NIC Group D officials
ii. EDAs of the same division
iii. Casual labourers (full time or part time)
For purpose of computation of eligible service, half of the service rendered as part time casual labourers should be taken into account. That is, if a part time casual labourer has served for 480 days in a period of 2 years he will be treated, for the purpose of recruitment to have completed one year as of service as full time casual labourers.
iv. EDAs of other division in the same region.
v. Substitutes (not working in metropolitan
cities).
vi. Direct recruits through employment exchange.
Note: Substitutes working in metropolitan cities will however, rank above No. (iv) in the list.
4. Please acknowledge receipt immediately.
Sd/-
Dr. Sarjaram Asst. Director General (SPN)"
B) When the post of GDS Mail Packer, Ayyanthole became vacant, the respondent No. 2 who is the competent appointing authority issued notice No. GDSMP/Ayyanthole dated 29.4.2009 inviting applications from open market for appointment to the said post. The applicant has challenged the aforesaid notice on the ground that she should have been considered first in terms of the aforesaid Annexure A-3 letter dated 6th June, 1988. Learned counsel for the applicant has also relied upon an order of this Tribunal in C.C. Sasikala Vs. The Assistant Superintendent of Post Offices, Kochi & Ors. dated 24.9.1999 in which it was held as under:-
"13. ....................................................................................................... In our considered view, the letter dated 6.8.88 does not envisaged a comparative evaluation of merit between outsider candidates and service casual labourers and therefore, there is no need for notifying the vacancies to the Employment Exchange and calling names of candidates once a casual labourer expresses willingness to be considered for posting as an E.D. Agents. Moreover, no instruction or rule which states that the cases of casual labourers whether part time or full time should be considered along with nominees of the Employment Exchange for selection as ED Agents has been produced."
3. The respondents in their reply have denied the contentions of the applicant. They have submitted that the applicant cannot be given any preference in the matter of appointment as GDS Agent. They have further submitted that benefit of preference to Casual Labourers in the matter of appointment as GDS agents, provided in Annexure A-3 letter dated 6.6.1988 of DG Posts is available only if such casual labourers have initially been sponsored by the employment exchange. In the case of the applicant neither she has been appointed as casual labour nor she was sponsored by the employment exchange and therefore, her claim for preference in the matter of recruitment to GDS cadre relying on Annexure A-3 is not sustainable. In this regard they have relied upon the judgment of the Apex Court in the case of Secretary, A.P. Public Service Commission Vs. Y.V.V.R. Srinivasulu & Ors. - 2003 SCC (L&S) 681, wherein the Hon'ble Apex Court has held as under:-
"10. ....................................................................................................... The "preference" envisaged in the Rules, in our view, under the scheme of things and contextually also cannot mean, an absolute en bloc preference akin to reservation or separate and distinct method of selection for them alone. A mere rule of preference meant to give weight age to the additional qualification cannot be enforced as a rule of reservation or rule of complete precedence. Such a construction would not only undermine the scheme of selection envisaged through the Public Service Commission on the basis of merit performance but also would work great hardship and injustice to those who possess the required minimum educational qualification with which they are entitled to compete with those possessing additional qualification too, and demonstrate their superiority merit wise and their suitability for the post. It is not to be viewed as a preferential right conferred even for taking up their claims for consideration. On the other hand, the preference envisaged has to be given only when the claims of all candidates who are eligible are taken for consideration and when any one or more of them are found equally positioned, by using the additional qualification as a tilting factor, in their favour vis-a-vis others in the matter of actual selection."
4. We have heard learned counsel for the applicant Shri P.C. Sebastian. We have also perused the reply filed by the respondents in this matter. It is an undisputed fact that the applicant is a part time casual labour even though the respondents have only stated that her engagement was purely on daily rated basis. However, it is evident from the Annexure A-2 letter dated 17.5.1989 referred to above that all daily wagers working in post offices or in RMS offices or in administrative officers under different designations (mazdoor, casual labourer outsider) are to be treated as casual labourers. These casual labourers who are engaged for a period of less than 8 hours a day should be described as part time casual labourers. All other designations should be discontinued. We also find that the reliance placed by the respondents in the case of Y.V.V.R. Srinivasulu (supra) of the Hon'ble Apex Court is also misplaced. In that judgment the Apex Court has only held that whenever a selection is to be made on the basis of merit performance involving competition, and possession of any additional qualification or factor is also envisaged to accord preference, it cannot be for the purpose of putting them as a whole lot ahead of others, dehors their intrinsic worth or proven interse merit and suitability, duly assessed by the competent authority. Preference, in the context of all such competitive scheme of selection would only mean that other things being qualitatively and quantitatively equal, those with the additional qualification have to be preferred.
5. In the present case the part time casual labourers being a class by themselves have to be given preferential treatment to the total exclusion of the outsiders. Moreover, the applicant's case is fully covered by the order of this Tribunal in OA 3 of 2005 - Lathakumari K. Vs. Assistant Superintendent of Post Offices & Ors. decided on 10th June, 2005. The applicant in the said OA was also working as a part time contingent employee in Vellayani Post Office. Her claim was that she was entitled to preference in the matter of appointment on the post of GDS. The Tribunal after considering the provisions contained in the DG Posts letter dated 6.6.1988 allowed the OA. The operative part of the said order is as under:-
"6. On going through the said letter it is clear that preference should be given to casual labourers for recruitment as ED Agents. It is also brought to our notice that this Tribunal had occasion to consider an identical case (O.A.818/2000) wherein this Tribunal observed that :-
The part-time contingent employee who had been working from December 1993 onwards was denied the benefit of preference in the matter of appointment to ED post for the reason that the applicant was not sponsored by the Employment Exchange. The Tribunal held that as the applicant had worked as Part time casual labourer for a long period, this benefit should not be denied to him solely for the reason that he was not engaged as casual labour through the intervention of the agency of Employment Exchange.
7. Therefore the contention of the respondents that the applicant had not been sponsored by Employment Exchange cannot hold good. Further, in (1996) 6 SCC 216, Excise Syuperintendent, Malkapatnam, Krishna District, A.P., the Apex Court has held that, restricting the selection only to the candidates sponsored by the Employment Exchange, was not proper. In the circumstances, the applicant has made out a case and therefore we are of the view that the relief has to be granted to the applicant The contention of the applicant that vide Annexure A-5 notification the respondents are attempting to fill up the said vacancy on provisional basis, on going through the said notification, we find that though appointment is on provisional basis it is likely to be regularised. In the circumstances, we are of the view that it is a fit case where direction be given to the respondents to consider the applicant for an appointment to the post of GDS BPM Ambalathara.
8. In the light of the above submissions, the application is allowed. Respondents are directed to consider the applicant for an appointment to the post of GDS BPM Ambalathara and give her the benefit contained in the letter of Director General of Posts. It is made clear that selection through open market could only be resorted to, if the applicant is found unsuitable for such appointment. With above direction the O.A is allowed. In the circumstances, no order as to costs."
6. The aforesaid order of this Tribunal was carried before the Hon'ble High Court of Kerala in WP No. 33732 of 2005. The Hon'ble High Court has also upheld the orders of this Tribunal vide its judgment dated 5.12.2005 which reads as under:-
"The challenge is on Ext. P4 order passed by the Central Administrative Tribunal, Ernakulam Bench. The issue pertains to the request made by the applicant for permitting her to participate in the selection and appointment to the post of Gramin Dak Sevak Branch Postmaster, Ambalathara. The main contention of the writ petitioner is that the appointment of the applicant is not through employment exchange. But the fact remains that she has gained sufficient experience, working for long on a casual basis. Going by the departmental instruction, such casual labourers are to be given preference in the matter of recruitment. It is for the department to ensure that the appointments even on casual basis are not made through the back door. Having appointed people like the applicant and such applicants having gained experience as casual labourers they cannot be prevented from participating in the selection and appointment. It is seen that the Tribunal as well as this court has consistently taken the stand as above, and the directions have been implemented also. We do not find any merit in this writ petition and it is accordingly dismissed."
7. In view of the above position, we allow this OA and declare that the applicant is eligible and entitled to be considered for appointment as GDS Mail Packer, Ayyanthole in preference to outsiders in terms of Annexure A-3 letter dated 6.6.1988. Consequently, the respondents are directed to consider the applicant for appointment to the post of GDS Mail Packer Ayyanthole giving her the benefit contained in the letter of Director General of Posts (Annexure A-3). It is made clear that selection through open market could only be resorted to, if the applicant is found unsuitable for such appointment. The aforesaid direction shall be carried out by the respondents within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
(K. GEORGE JOSEPH) (GEORGE PARACKEN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER "SA"