Central Administrative Tribunal - Ernakulam
Reji S vs M/O Communication & Information ... on 24 May, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00143/2017
Wednesday, this the 24th day of May, 2023
CO RAM :
Hon'ble Mr. Justice Sunil Thomas, Judicial Member
Hon'ble Mr. K. V. Eapen, Administrative Member
Reji S., W/o. Rajkumar A, aged 31 years,
GDSMD Naruvamoodu, Thiruvananthapuram,
Pin - 695 528,
Residing at STRA-B 18, Elippikkal (H),
Studio Road, Nemom P.O.,
Thiruvananthapuram, Pin - 695 020. -Applicant
(By Advocates: Mr. M. R. Hariraj, Mr. P. A. Kumaran)
VERSUS
1. Union of India, represented by the
Secretary to Government of India,
Department of Posts, New Delhi - 110 001.
2. The Chief Postmaster General, Kerala Circle,
Thiruvananthapuram - 695 033.
3. The Superintendent of Post Offices,
Thiruvananthapuram South Division,
Thiruvananthapuram, Pin - 695 033. -Respondents
(By Advocate: Mr. N. Anilkumar, SPC)
This Original Application having been heard on 8 th May 2023, the
Tribunal on 24th May, 2023 delivered the following: -
ORDER
Per: K. V. Eapen, Administrative Member Applicant has filed this O.A seeking the following reliefs: -
" (i) To declare that the applicant is entitled to be considered for appointment as Gramin Dak Sevak in O.A 143 of 2017 -2- preference to persons having no casual service and to direct the respondents to consider the applicant against existing vacancies of Gramin Dak Sevaks under the 3 rd respondent, giving due consideration to her experience in GDS posts also.
(ii) Issue such other orders which this Honourable Tribunal may deem fit and proper in the circumstances of the case."
2. The applicant is aggrieved by the refusal of the respondents to consider her for appointment to vacancies of Gramin Dak Sevaks (GDS) under the 3rd respondent, Superintendent of Post Offices, Thiruvananthapuram South Division after giving her the preference available to casual labourers and also taking into account her experience of working as GDS for many years. It appears from the O.A that she was initially engaged as GDS Mail Deliverer, (GDSMD) Kudappanakkunnu P.O in August 2010. She had continued working a GDSMD/GDSMC (GDS Mail Carrier) in various offices within the Thiruvananthapuram South Division. It is indicated from 01.07.2013 she has also been working as a part time contingent sweeper and scavenger at Kaimanam Post Office. This work is for 2 hours only and the applicant submits that she has been working continuously on almost all working days as part-time contingent sweeper and scavenger since 01.07.2013. Accordingly, she submits that she has acquired more than 240 days of service as a part-time casual labour in all years since her initial engagement. While working on a part-time casual basis the applicant had also been engaged to work in GDS posts in different places. Thus, in effect, she has long service, both as a casual labour and Gramin Dak Sevak. However, she submits that she has not been O.A 143 of 2017 -3- given any preference for regular appointment as GDS and is continuing only on a stop-gap arrangement as GDS. It is submitted that in similar cases, this Tribunal and the Hon'ble High Court of Kerala had directed that preference should be given to part-time casual labourers for appointment as Gramin Dak Sevaks. She had given a representation in this regard to the respondents on 08.01.2017, which she has produced at Annexure A3. It is also submitted that an available vacancy of GDS in her current place of posting, GDS MD Naruvamoodu, is likely to be filled up without considering her in preference to those who do not have such casual service or prior experience as GDS. Hence, she has filed this Original Application.
3. When the matter came up before this Tribunal on 03.03.2017 an interim order was passed to let the applicant continue in the post of Sweeper-cum-Scavenger at Kaimanam Post Office till the disposal of the O.A. It was also ordered that if the applicant is technically competent for the post of GDSMD subject to fulfilling the qualifications, her candidature is to be considered as a stop gap arrangement for GDSMD also. This interim order seems to have been extended from time to time till the next posting date. The applicant then filed M.A No.180/979/2018 stating that a regular incumbent had been posted to the vacancy of GDSMD, Naruvamoodu and that she was in danger of being disengaged. She submitted that there are other vacancies available in the same Post Office and in the same Sub-Division. This Tribunal after hearing the M.A, ordered on 06.09.2018 that the applicant may be engaged in the alternative post, if O.A 143 of 2017 -4- there is any vacancy. The M.A was accordingly closed.
4. The applicant has relied on the orders of this Tribunal and the Hon'ble High Court to make her case that she has to be considered for appointment to the post of GDS in preference together, as a part-time casual labour. She has been working as part-time contingent sweeper and scavenger from July 2013 onwards. She has more than 240 days of casual service every year. She submits that this Tribunal, in O.A 300/2005, had directed that preference should be given to casual employees. This was affirmed by the Hon'ble High Court of Kerala in WP(C) No.5719/2008. A similar order was passed in O.A No.667/2010 which was upheld by the Hon'ble High Court of Kerala in OP(CAT) No.3332/2011. Further in O.A No.524/2006 a part-time contingent sweeper and scavenger had approached this Hon'ble Tribunal claiming preference for appointment as GDS. Though it was not agreed to by this Tribunal, further in WP(C) No.14560/2007, the Hon'ble High Court of Kerala after noting the precedents, had directed consideration of the applicant for appointment as a GD packer, treating him as a part-time contingent sweeper and scavenger and had directed that recruitment from open market shall be made only after such consideration. Similarly, in OP(CAT) No.4501/2013 the Hon'ble High Court of Kerala upheld the claim for preference of a casual labourer for appointment as GDS. This position was reiterated in OP(CAT) No.239/2016 confirming the final order in O.A No.1232/2013. In this order, the Hon'ble High Court of Kerala held that casual labourer having O.A 143 of 2017 -5- 240 days service must be given the benefit of OM providing for preference for casual labourer in GDS appointments in view of above precedents.
5. The applicant submits that no one else has been engaged by the said Post Office at Kaimanam and that, in such circumstances, she is entitled to be considered as GDS in preference to outsiders. She is similarly placed to the employees in the O.As/WPs/OP(CAT)s indicated earlier, who had been granted this benefit. Thus, the respondents also ought to treat her similarly. It is submitted that they are bound to consider her in preference to any open market candidate for appointment as GDS. She claims that any refusal to do so is discriminatory and illegal and is violative of Article 14 and 16 of the Constitution of India.
6. During oral submissions, learned Counsel for the applicant, Sh. M. R. Hariraj further brought to our notice orders of this Tribunal in O.A No.785/2010 and O.A No.733/2011 passed on 12.01.2012, wherein, this Tribunal, after going through the other orders passed by the Hon'ble High Court, had allowed the O.As filed by the part-time sweepers engaged in various Post Offices. It was held that in view of the binding precedences mentioned in the order, the O.As were allowed and the respondents were directed to proceed with open market recruitment only if the applicants were not found eligible to be appointed as GDS. Further, in the earlier mentioned OP(CAT) No.4501 of 2013 in relation to the service of part- time sweepers, the Hon'ble High Court had even observed that it cannot be assumed that a Post Office would be left even without sweeping and O.A 143 of 2017 -6- cleaning. If the department did not have any material to say as to whether anybody else was engaged in the office, the Tribunal cannot be critised as having erred in jurisdiction or in law in deciding on the relevant issue of fact in the manner it did. It was the establishment which did not have a case that there was another sweeper in the said Post Office at the relevant time. Hence, there was a strong case that the applicant's service herein amounted to her working as a casual labourer.
7. The respondents filed a detailed reply statement in May 2017 in response to the Original Application. It was pointed out in the statement that the applicant in the O.A had been engaged as a substitute, purely on a stop-gap arrangement, in the leave vacancies of Gramin Dak Sevaks intermittently for short spells as detailed in the statement in the second paragraph. These stop-gap arrangements against Leave Without Allowance (LWA) vacancies had continued from 2010 onwards. The applicant had been accordingly working as GDS MD Naruvamoodu in this manner from 18.10.2011 till 05.03.2015 with breaks and later in other places. She was then engaged as GDS MD Naruvamoodu on 01.12.2016 again on a stop- gap basis till the filing of the O.A. It is clarified that all these engagements were only for short spells to overcome short time exigencies. It is also relevant to point out that the applicant was never engaged after following the due engagement procedure. Further it is submitted that the applicant was never appointed as a casual labourer. In fact, it is submitted, that there is no post of sweeper at Kaimanam Post Office. The sweeping work of the O.A 143 of 2017 -7- said office is being carried out by various outsiders and there are other outsiders as well who had been engaged for carrying out the sweeping work of Kaimanam Post Office even before the applicant was engaged to do the work. It is submitted that such outsiders have no claim, whatsoever, for regularisation. The Hon'ble Apex Court in the Secretary, State of Karnataka v Umadevi [(2006) 4 SCC 1] had held that merely because a temporary employee or a casual worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It was held therein that "it is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right".
8. It is further submitted by the respondents that as per the DG Posts letter dated 17.05.1989 'Substitutes' engaged against absentees do not come under the category of casual labourers. The applicant had been engaged as a 'Substitute' on a stop-gap arrangement in Leave Without Allowance (LWA) vacancies. This Tribunal had in a catena of orders laid down the law regarding claim for regularisation of substitutes/outsiders. In O.A No.417/2009 this Tribunal while examining a similar scenario had held that the applicant therein, who was engaged as a substitute by the regular O.A 143 of 2017 -8- incumbent on his own responsibility, had no preferential right to continue in the post. It is submitted by the respondents in this regard that the applicant had been engaged only as a substitute as detailed in the list produced at paragraph 2 of the reply statement. Her engagement was in accordance with the provisions of GDS (Conduct & Engagement) Rules, 2001 which only provides for the GDS to propose their substitutes in the leave vacancies on the sole responsibility of the GDS. People who are thus engaged have no right to claim regular appointment. Similarly in O.A 684/2009 this Tribunal had held that the applicant, therein, who had not been selected in due process had no right to say that he should not be displaced by a person selected in accordance with law. It is submitted that the above judgment of the Hon'ble Apex Court in Umadevi (supra) and the orders of the Tribunal in these cases are squarely applicable in the instant case and the O.A is liable to be dismissed.
9. It is thus clear from the above that the main contention of the respondents is that the applicant had never been appointed as a casual labourer. In fact it is submitted that the appointment of part-time/full time contingent staff had been banned by the Government of India with effect from 29.11.1989. Hence, the issue of giving preference to casual labourers in the engagement of GDS, as stipulated in the letter of the Department of Posts dated 06.06.1988, was only applicable to those who were engaged as casual labourers up to 29.11.1989. Later, the cut-off date for the benefit for granting temporary status to the full-time casual labourers was extended to O.A 143 of 2017 -9- casual labourers engaged up to 01.09.1993. As such it is submitted that there are no casual labourers in the Thiruvananthapuram South Division. It is reiterated that the preference to casual labourers to be engaged as GDS as stipulated in the DG letter dated 06.06.1988 is applicable only to those casual labourers who were engaged up to 01.09.1993. It is also reiterated that the applicant in this case is not casual labourer. She was neither sponsored for engagement by the employment exchange, nor was she appointed after following any selection procedure. Hence, her services can only be construed as that of an outsider outsourced to carry out the sweeping work of Kaimanam Post Office, which is only for 40 minutes a day. Such outsiders who have been engaged for short periods from 2013 onwards cannot be treated on par with the casual labourers who were appointed prior to 1993.
10. It is submitted that an identical issue was considered by this Tribunal in O.A 865/2013 filed by Smt. C. Usha. The Tribunal dismissed the O.A vide order dated 03.07.2015 declaring that any departure from law as laid down in Umadevi (supra) judgment was not acceptable. It is submitted that the instant OA is squarely covered by the said decision of the Tribunal.
11. It is also submitted that regarding the claim for preference to be extended to casual labourers for working as GDS, the issue of whether weightage should be given to persons who have rendered past employment on a provisional basis in the capacity of 'substitutes' of GDS was the subject matter of Department of Post's letter dated 21.10.2002. A copy of O.A 143 of 2017 -10- the said letter is produced at Annexure R1(a). In this circular which is addressed to Principle/Chief Postmaster General of circles, from the Department of Posts Headquarters, it is indicated at paragraph 4 that 'Substitutes' have no legal right as far as regularisation in the department is concerned. It is also submitted that there is no provision whatsoever for giving any weightage for any experience that a candidate may have attained by working as a GDS substitute earlier. The applicant had been only engaged as substitute during different spells in leave vacancies of different GDS as brought out in the table at paragraph 2 produced in reply statement. The GDS (Conduct & Employment) Rules 2001 allows a regular GDS to nominate a substitute to work in his place when he/she goes on leave or works under extra cost arrangement. This nomination is only an authorised arrangement made by the regular incumbent which the department approves on each occasion of such nomination after due process of verification. Here also, the applicant was only such a nominee who worked as substitute of the regular incumbent intermittently. Hence, such substitutes who are engaged by the GDS who go on leave are not included in the category of casual labourers and they have no claim for regular appointment in the post on the plea of having worked as substitutes. Nor can they have a claim to continue in the post till a regular appointment is made to the post. This view had been upheld by this Tribunal in O.A No.398/2010, wherein, it was held that since the applicant had worked intermittently only as a substitute of the regular incumbent, he has no legal right to regularisation. Further, in reference to the issue raised O.A 143 of 2017 -11- in relation to discrimination affecting Articles 14 and 16 of the Constitution, it is submitted that Article 14 of the Constitution of India is concerned with Right to Equality and Article 16 gives the Guarantee of Equality of Opportunity in the matters of public employment. It is submitted that this Tribunal may consider that in the light of Umadevi (supra) judgment, giving a preference to the applicant herein will actually be violative of Article 16 of the Constitution of India.
12. In addition to the above points, learned Senior Panel Counsel (SPC) Sh. N. Anilkumar during oral submissions also brought to our notice a recent judgment of the Hon'ble High Court of Kerala in O.P(CAT) No.293/2017 dated 05.08.2022. In these orders the Hon'ble High Court had observed that they were not persuaded to accept the submission of the learned Counsel that the casual labourers engaged before and after 01.09.1993 constituted a homogeneous class for the purpose of seeking preferential appointment to the post of GDS. It was held in the case that the cut-off date had been prescribed with a view to limit the persons who would obtain the right to preferential appointment based on years of casual engagement with the right being granted to only those who had put in more years of such service as casual labourers. The cut-off date being introduced to limit the beneficiaries to a few based on their years of engagement on casual basis, and ending with the date on which the Central Government took a decision to stop the engagement of casual labourers for works of regular nature, the Hon'ble High Court found that the fixation of cut-off O.A 143 of 2017 -12- date was neither arbitrary nor discriminatory. Thus, in effect, therefore, the Department of Posts had accepted that there could not be any more recruitment of casual labourers after the cut-off date of 01.09.1993. It is reiterated that, in any case, the applicant herein is not a casual labourer as brought out in the detailed contentions outlined earlier. She was just an outsider engaged to carry out sweeping work in Kaimanam Post Office and was only one among other such outsiders who were engaged for carrying out the said sweeping work, some of whom were even engaged prior to her engagement. It is also submitted that the applicant is also not similarly placed as the applicants in the various judgments relied upon her in the O.A. It is submitted, for example, that the applicant in O.A No.300/2005 relied upon by her in the O.A had a claim to have been engaged from 1984. Similarly, the applicant in O.A No.667/2010 had claimed to have been engaged from the year 2001. The applicant herein had no such case of such a long engagement.
13. Learned SPC also filed M.A No.180/301/2022 to vacate the interim order passed by this Tribunal on 03.03.2017. It is submitted therein that the interim order, which was granted initially in the case till the next posting date, was being extended indefinitely during the subsequent hearing causing a stalemate in the recruitment process. It is also submitted that the post of BPMs, ABPMs and Dak Sevaks in Kerala Circle are being filled up through online recruitment on merit basis. The post of Gramin Dak Sevak, Naruvamoodu could not be notified in the 1 st, 2nd & 3rd cycle of GDS online O.A 143 of 2017 -13- recruitments due to the stay order of this Tribunal. The interim order 03.03.2017 had directed the respondents to consider the candidature of the applicant as a stop-gap arrangement for GDSMD, Naruvamoodu. Hence, it is submitted that the vacancy could not be notified and unless the matter was heard on an urgent basis the vacancy cannot be notified even in the 4 th cycle of GDS online recruitment.
14. It is submitted by the respondents that the decision of the Hon'ble Apex Court in Umadevi (supra) has also been relied upon by this Tribunal in O.A 1070/2013 filed by Smt. K. Sujatha in its order dated 07.10.2016 and by the Hon'ble High Court of Kerala in judgment dated 07.02.2017 in O.P(CAT) No.39/2017. Further, the Tribunal's orders in O.A No.684/2009 dated 25.02.2010 filed by Sh. D. V Praveen is also squarely applicable to this case. In addition, the facts of this case and issues involved are identical to the OP(CAT) No.75/2018 and OP(CAT) 76/2018 arising from the order of this Tribunal in O.A No.941/2010 and 847/2010 dated 12.04.2018. The orders of this Tribunal therein were considered in detail and were dismissed by the Hon'ble High Court of Kerala in its judgment dated 30.10.2019 in O.P(CAT) 75 and 76 of 2018. A copy of the said judgment has been produced as Annexure MA R1(b). In this judgment it was noticed that both the petitioners had continued for a long time based on interim orders. They were also continued uninterruptedly which does not enable a claim of re-employment, since the uninterrupted continuance was only by virtue of the interim order of this Court. It was also held, therein, that the O.A 143 of 2017 -14- official respondents have the authority to make either of such appointment to the post now occupied by the petitioners. It was only considered that if the Rules permit, the petitioners could also apply for such appointment when public notification is issued. It was held that their continuance, based on the interim order or based on the Hon'ble High Court's direction will not enable a claim for regularisation or for a re-employment. Hence, it was prayed in the M.A 180/301/2022 for vacating the interim order granted in the case and permitting the M.A applicants/official respondents to notify the vacancy in the next cycle of GDS online recruitment.
15. Meanwhile, the applicant too filed M.A No.180/146/2023 bringing to notice of this Tribunal a notification inviting eligible applicants for engagement as Gramin Dak Sevaks Branch Postmaster/Assistant Branch Post Master (Dak Sevak) dated 27.01.2023. This notification was produced at Annexure A4 and it was only brought out that the applicant, herein, had also applied for the post vide Annexure A5 application. Further, it was submitted that the matter is covered by the judgment of the Hon'ble High Court in OP(CAT) No.239/2016 dated 01.09.2016, which was produced by the applicant in the M.A at Annexure A6. However, on going through the judgment we note that the finding therein was only that applicant therein had established his eligibility to get preference and, in turn, the appointment against the vacancy notified therein. It was found that the verdict passed by the Tribunal was perfectly within the four walls of law and was not assailable under any circumstance. The petition filed by the O.A 143 of 2017 -15- Department of Posts was thus dismissed. However, it is clear that the applicant in that matter was admittedly engaged to do various works as casual labourers in the Office of the Assistant Superintendent of Post Offices, Thiruvananthapuram East Sub Division and there was no case by the petitioner Department (respondents) that he was not eligible or not fit to do work as above. In other words, that applicant's right to be declared as a casual labourer had been clearly established, which is not accepted by the respondents in this case, in case of the applicant herein.
16. We note from the series of judgments and orders of various Courts/Tribunals brought out above that what is to be, ab initio, established in such cases is whether the applicant has by nature of service any preferential right to be considered over others in recruitment to the post of GDS in the Division where she is currently working in or even in neighbouring Divisions. The respondents have clearly established that her services are only as part-time sweeper/scavenger duty, even if continuing without a break cannot be held to give her a right to be treated as a casual labourer working in the Department in light of the Rules, provisions/circulars mentioned. This is particularly so since there have been other such employees working as part-time sweepers in the same office, who were engaged even prior to her. In any case, no engagement of casual labourer has been allowed by the orders of the Department of Posts and preference for employment/regularisation were only given to the casual labourers engaged before 01.09.1993 after the judgment in O.A 143 of 2017 -16- Umadevi (supra). This view has been maintained in the series of orders passed by this Tribunal as well as by the Hon'ble High Court. Thus once it is seen that the applicant is not a casual labourer her right to even get considered for regularisation fails.
17. However, her work as a GDS substitute (Leave Without Allowance vacancies) cannot also be considered to give her a right. This is brought out in the circulars of the Department of Post mentioned earlier as well as in orders of this Tribunal and Hon'ble High Court. At the end of the day it is clear that the reasoning behind these orders is that entries by the backdoor into Government employment is not to be encouraged. The Hon'ble High Court has brought out that such people who are engaged purely on a contingent or substitute basis cannot be considered for any preference in recruitment.
18. We note that the applicant has applied as per Annexure A5 for the online GDS engagement of Gramin Dak Sevak as per the notification dated 27.01.2023. If she makes the cut-off indicated after selection, there is no doubt that she will get the engagement. However, we cannot intervene at this stage in any way in the facts and circumstances of this case and also due to the orders as well as judgments indicated earlier, read with the circulars of the Department of Posts. No special right or preference over and above the others can be granted.
O.A 143 of 2017 -17-
19. Hence, the O.A does not succeed and it is dismissed. No order as to costs.
(Dated this the 24th day of May, 2023)
K. V. Eapen Justice Sunil Thomas
(Administrative Member) (Judicial Member)
bp
O.A 143 of 2017
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List of Annexures
Annexure A1- A true copy of the statement of bills submitted by the Sub
Postman of Kaimanam P.O dated 01.08.2013.
Annexure A2- A true copy of the statement of bills for various months in
2016.
Annexure A3- True copy of the representation submitted by the applicant
dated 08.01.2017.
Annexure A4- A true copy of the notification no.17-21/2023-GDS dated
27.01.2023.
Annexure A5- True copy of the candidate application form.
Annexure A6- True copy of judgment in OP(CAT) 239 of 2016 from the
Hon'ble High Court of Kerala dated 01.09.2016.
Annexure R1(a)- True copy of the letter No.17-115/2001-GDS dated
21.10.2002.
Annexure MA R1(a)- True copy of the interim order dated 03.03.2017.
Annexure MA R1(b)- True copy of the common judgment in OP(CAT) No.75
and 76 of 2018 issued by the Hon'ble High Court.
*****
O.A 143 of 2017