Central Administrative Tribunal - Ernakulam
Nisha K Joy vs Union Of India on 25 February, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00715/2014
Thursday, this the 25th day of February, 2016
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P. GOPINATH, ADMINISTRATIVE MEMBER
Nisha K Joy,
D/o.K.P.Joy,
Gramin Dak Sevak Mail Deliverer,
Poovanthuruthu Post Office, Kottayam - 12.
Residing at Karikumthil House,
Vazhithala P.O., Idukki District - 685 583. . . . . Applicant
(By Advocate Mrs.Rekha Vasudevan)
Versus
1. Union of India
represented by Secretary to Government of India,
Ministry of Communications & IT, Department of Posts,
New Delhi.
2. The Chief Post Master General,
Department of Posts, Kerala Circle,
Thiruvananthapuram - 695 033.
3. The Assistant Director (Estt. & Rectt.),
Office of the Chief Post Master General,
Kerala Circle, Thiruvananthapuram - 695 033.
4. The Senior Superintendent of Posts,
Kottayam Division, Kottayam - 686 001.
5. The Assistant Superintendent of Post Offices,
Kottayam East Sub Division,
Kottayam - 686 001.
6. Aswathi Mohanan,
D/o.Mohanan P.P.,
Postal Assistant, Kannur - 670 001.
Residing at Puthiya Purayil, Velichankol,
Pattuvam P.O., Thaliparamb, Kannur - 670 143. . . . . Respondents
(By Advocates Mr.N.Anilkumar,Sr.PCGC [R1-5]
& Mr.V.Sajithkumar [R6])
This application having been heard on 23rd February 2016, the
Tribunal on 25th February 2016 delivered the following :
ORDER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER Applicant is aggrieved by the inaction on the part of the respondents to consider her candidature for appointment as Postal Assistant. Annexure A-10 select list published pursuant to Annexure A-7 notification is under challenge to the extent it denies the applicant appointment as Postal Assistant and respondent grants her selection as Postman. The non reservation of vacancies under sports quota in direct recruitment to the cadre of Postal Assistant was under consideration of this Tribunal. This Tribunal has directed the respondents to set apart 8 vacancies under sports quota for the applicants therein. The directions of this Tribunal was assailed before the Hon'ble High Court. As per Annexure A-6 judgment dated 21.5.2009 a specific direction was issued to the respondents to notify the vacancies in the cadre of Postal Assistant under the sports quota within a period of six months. Annexure A-7 notification was thus issued by the Department notifying the vacancies under sports quota in the cadre of Postal Assistant and Postman. The vacancies notified were for the period from 2004 to 2010. Seven out of the eight vacancies under consideration in Annexure A-6 judgment of the Hon'ble High Court was also included in Annexure A-7 notification. The Recruitment Rule made applicable to the vacancies which arose from 2004 to 2010 is the Annexure A-12 Recruitment Rules of 2011, which came into effect only from 3.11.2011 as is evident from Annexure A-13. It is submitted that the vacancies which arose prior to 3.11.2011 ought to have been filled up by applying AnnexureA-11 Recruitment Rules of 2002. Annexure A-11 Recruitment Rules of 2002 did not mandate 60% marks in 10+2 or 12th class. The said stipulation was introduced by virtue of Annexure A-12 Recruitment Rules of 2011. Annexure A-12 Recruitment Rules does not have any retrospective effect. Further the stipulation of 60% marks in 10+2 or 12 th class stands deleted with effect from 27.1.2014. By pressing 60% marks in 10+2 or 12th class, the applicant has been denied appointment as Postal Assistant and has been granted selection as Postman. The applicant is a graduate and possesses 59.6% marks in 12 th class. She was allowed to appear for the aptitude test for appointment as Postal Assistant in 2008 and 2009. However, she is now denied appointment as Postal Assistant against the vacancies which arose during the said period on the ground that she does not possess 60% marks in 12th class. It is submitted that the respondents have chosen to consider only the marks obtained by the applicant in 10+2 class. They have failed to consider the marks obtained by the applicant in her Annexure A-2 Degree. Reliefs sought by applicant are to declare that the vacancies in the cadre of Postal Assistants notified as per Annexure A-7 notification are liable to be filled up by applying Annexure A-11 Recruitment Rules of 2002.
2. The respondents in their reply submit that the notification dated 10.9.2012 was issued for filling up of the vacancies under sports quota in Annexure A-7 in which the procedure for selection was clearly mentioned. The order of preference in selection is as shown below, as per the guidelines which is prescribed in DOPT Memo No.14015/1/78-Estt.(D) dated 4.8.1980. It reads :
1. First preference is to be given to those candidates who have represented the country in an International Competition with the clearance of the Department of Youth Affairs and Sports.
2. Second preference is to be given to those candidates who have represented a State/Union Territory in the Senior or Junior level National Championships organized by the National Sports Federation or Indian Olympics Association and have won medals or position upto 3rd place.
3. Third preference is to be given to those candidates who have represented a University in an Inter University Competition conducted by Association of Indian Universities and have won medals or positions upto 3rd place in finals.
4. Fourth preference is to be given to those candidates who have represented the State Schools in the National Sports/Games for Schools conducted by All India School Games Federation and have won medals or positions upto 3rd place.
5. Fifth preference is to be given to those who have been awarded a National Award in Physical Efficiency under National Physical Efficiency Drive.
6. Sixth preference is to be given to those who represented a State/Union Territory/University/State School Teams at the level mentioned in categories (2 to 4) but could not win a medal or position, in the same order of preference.
3. The selection to the post of Postal Assistant are governed by the Department of Posts (Postal Assistants and Sorting Assistants) (Group C Non Gazetted) Recruitment Rules, 2011. Educational qualification for selection of Postal/Sorting Assistant are as follows :
(i) 10+2 standard or 12th class pass with at least 60% marks, from recognized University/Board of School Education/Board of Secondary Education with English as a compulsory subject (excluding vocational streams), 55% marks for other backward class and 45% for Scheduled Castes/Scheduled Tribes.
(ii) Should have studied local language of the State of Kerala ie.
Malayalam or Hindi as a subject at least in Matriculation or Recognized Board/University.
4. The applicant applied for the job as per Annexure A-7 Notification wherein it was clearly mentioned in Page 3 therein that 60% marks in the 12th class is required in respect of the general category candidates for selection of Postal Assistant. The applicant belongs to general category, and did not satisfy the educational qualification required for selection as Postal Assistant. Hence she was selected for the post of Postwoman as per the extant rules and provisions contained in Annexure A-7 notification. As per 10+2 certificate submitted by the applicant that she has not secured the minimum required 60% marks in the 10+2 examination and hence, she could not be selected for the post of Postal Assistant. 52 vacancies in the Department are to be filled up and out of these 52 vacancies, 32 were ear- marked for PA/SA post. 29 candidates who secured 60% and more were declared selected for the post of Postal/Sorting Assistant. The result of three candidates in Kabbaddi discipline were withheld as per the orders of this Court. As per Recruitment Rules there was no provision for any weightage for higher educational qualification possessed by a candidate. The applicant had applied for a job under sports Quota pursuant to the notification issued for this purpose and the method of selection and mandatory minimum educational qualification required for the post of Postal Assistant were clearly specified in the notification. Therefore, the averment of the applicant that she is eligible for PA post under Sports Quota is totally devoid of merit.
5. Heard the counsel for applicant and respondents and perused the written submissions made. The main contention of applicant is that Annexure A-7 notification was issued in respect of posts of Postal Assistants vacancies which pertains to years 2004 to 2010 which included 7 out of 8 vacancies mentioned in Annexure A-6 judgment of the Hon'ble High Court. Annexure A-12 Recruitment Rules were issued on 3rd November 2011 and nowhere does the Recruitment Rules state that it has retrospective effect for the years to which the vacancies relate ie. 2004 to 2010. The applicable Recruitment Rules was Postal Assistants and Sorting Assistants Recruitment Rules 2002 published as per the notification dated 9.1.2002 wherein the qualification of 60% marks in 10+2 was not applicable. Whereas it is admitted that the notification for vacancies of 2004 to 2010 was issued on 10 th September 2012 ie. after Annexure A-12 new notification was issued, the vacancies relate to years when the 2002 notification was applicable. Whereas the respondents should have made recruitment in the respective years, the clubbing of vacancies for the years 2004-2010 does not render the 2012 notification retrospective application. The respondents also admits this position in para 14 of the reply statement when they say that it is settled legal position that vacancies which were in existence prior to the date of coming into force of the new Recruitment Rules have to be filled up in accordance with the old Recruitment Rules. The respondents also makes a citation of High Court of Kerala decision in Mohanan vs. Director of Homeopathy 2006 (3) KLT 641 in support of their contention. The respondents perhaps fail to notice that the principle enunciated in this very citation applies to the applicant also. For the vacancies which were in existence in the years 2004-2010 applying the Recruitment Rules issued on 3.11.2011 which provides the condition of 60% marks is most inappropriate. Hence these vacancies which existed prior to the 3.11.2011 amended rules would be governed by the old rules of 9.1.2002 and not by the amended rules. The respondents cites Y.V.Rangaiah V.J.Sreenivasa Rao 1983 (3) SCC 2842, P.Ganeshwar Rao and others vs. State of Andhra Pradesh and others AIR 1986 SC 2068, Arjun Singh Rathore vs. B.N.Chaturvedi 2007 (11) SCC 605 in support of the applicant's contention that the vacancies which arose subsequent to the amendment of the Rules in 2011 are required to be filled in accordance with the law existing as on the date when the vacancies arose ie. 9.1.2002 Recruitment Rules. It is pointed out that the 6 th respondent was given appointment as Postal Assistant and so it is submitted on behalf of the 6th respondent that if this application (O.A) is allowed, it will affect the appointment of the 6th respondent. But the learned counsel for the applicant submits that the vacancies are there, so that the appointment of the applicant will not in any way affect the 6th respondent. It is pointed out that it would be only the last man in the list who, if at all, will be pushed down and not the 6th respondent. Therefore, in any event, it is for the official respondents to make suitable provision/accommodation if so requires, that cannot stand in the way of allowing this O.A in favour of the applicant.
6. We direct that the applicant be selected for the post of Postal Assistant as per Annexure A-11 Recruitment Rules of 9.1.2002 as the vacancies relate to 2004-2010 wherein the 2002 Recruitment Rules were applicable. This exercise be completed within a period of one month from the date of receipt of a copy of this order. The O.A is allowed accordingly. In view of the order in the O.A., M.A.No.180/00198/2016 is closed. No costs.
(Dated this the 25th day of February 2016)
(P. GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp