Central Administrative Tribunal - Hyderabad
P.Gopal vs The Director-General on 24 November, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL: HYDERABAD BENCH: HYDERABAD
O.A.No.384 of 2007
Date of Order:24.11.2008
Between:
P.Gopal, s/o Sri P.Maddiletaiah,
Working as GDS/Branch Postmaster,
Peravali BO a/w Tuggali SO,
District Kurnool. ..Applicant
a n d
1. The Director-General, Posts (rep. UOI),
Department of Posts, New Delhi.
2. The Principal Chief Postmaster General,
A.P.Circle, Hyderabad.
3. The Postmaster-General, Kurnool Region,
Kurnool.
4. The Superintendent of Post Offices,
Kurnool Division, Kurnool. ..Respondents
Counsel for the Applicant : Mr.S.Ramakrishna Rao
Counsel for the Respondents : Mrs.K.Rajitha, Addl.CGSC
CORAM:
THE HON'BLE MR.JUSTICE P.LAKSHMANA REDDY , VICE CHAIRMAN
THE HON'BLE MR.R.SANTHANAM, MEMBER (ADMN.)
: ORAL ORDER :
(As per Hon'ble Mr.Justice.P.Lakshmana Reddy, Vice Chairman) Heard0 learned Counsel on both sides and perused the records.
2. This application is filed by GDS/BPM , Peravali Branch Office, seeking a direction to the respondents to consider his transfer to work as GDS/BPM at Jonnagiri Branch Office, on health grounds, as provided under Circular dated 17.7.2006 issued by the respondent no.1.
3. The relevant facts in brief are as follows:
The applicant was originally appointed as GDS/BPM without following the due procedure of selection as the appointment was temporary in the place of the incumbent, who was kept on put off duty on 13.3.1987, and on the same day, the ........2 2 applicant, who belongs to the same village Jonnagiri, was appointed in that post on provisional basis. On 30.8.1990, the BPM, who was kept on put-off duty, was reinstated into service, and therefore, the appointment of the applicant on provisional basis at Jonnagiri BO came to an end. Subsequently, in the year 1999, the applicant's name was kept on waiting list for the purpose of appointment as BPM whenever any vacancy arises anywhere. On 12.3.2000, the applicant was given alternate appointment on regular basis as GDS BPM, Peravali BO, and since then he is working at Peravali. While so, in the year 2006, the incumbent of BPM died in a motor vehicle accident, and therefore, the said post became vacant. After coming to know of it, the applicant submitted a representation dated 1.7.2006, a copy of which is annexed as Annexure.A-V to the OA, to the respondent no.4 stating that he has got his own house at Jonnagiri and that he worked earlier for 3 1/2 years as GDS/BPM provisionally and hence he may be transferred to Jonnagiri. Again on 5.7.2006, the applicant submitted another detailed representation dated 5.7.2006, a copy of which is annexed as Annexure.A-VI to the OA, to the Superintendent of Post Offices, Kurnool, reiterating his request for transfer. On 13.7.2006, the Superintendent of Post Offices, Kurnool, rejected his representation stating that consequent on providing alternate appointment, he cannot be treated as thrown out GDS official and that the GDS officials have no transfer liability as per GDS (C&E) Rules, 2001. Thereafter, on 24.7.2006, the applicant submitted another representation asserting that he was a thrown out GDS in the orders posting him at Peravali. Along with that representation, he furnished a copy of the orders wherein it is stated that he was thrown out GDS. In that representation, the applicant further submitted that no other person is claiming for transfer to the post of BPM, Jonnagiri and no claim for compassionate appointment was made. He reiterated .........3 3 that his native place is Jonnagiri and his aged mother is residing at Jonnagiri and he is having own house and immovable property. He also sent similar representation to the Postmaster General, Kurnool Region, Kurnool, copy annexed as Annexure.A-IX to the OA on 8.8.2006. In that representation, the applicant stated that the Directorate had recently intimated the spirit of the Rule in the proceedings of the Ministry of Communications relating to transfer conditions of GDS employees. He further stated therein that he has got old mother, illiterate wife and small children and that there was no scope for him to shift his family at Jonnagiri, and therefore, his transfer may be considered in relaxation of the rules by applying the spirit of the recent ruling. Again on 8.1.2007 the applicant submitted another representation for transfer to Jonnagiri stating that he is attacked with Chronic Bronditis and Brondical Asthama and he has to go frequently to nearby town Gooty for better treatment and that Gooty is nearer to Jonnagiri and faraway from Peravai BO, and further water of Peravali is not suitable for himself and his family members and that he has to spent half of his salary towards travelling expenses, and therefore, he may be transferred to Jonnagiri. Again on 9.2.2007, the applicant submitted another representation to the Postmaster General inviting his specific attention to the letter No.19-10/2004-GDS of Ministry of Communications dated 17.7.2006 where under limited transfer liability to Gramin Dak Sevaks is made permissible on medical grounds. In the meantime, on 28.12.2006, a notification was issued for filing up the post of GDSBPM of Jonnagiri GDS Branch Post Office, on regular basis. As there was no response to his representations, the applicant has approached this Tribunal by filing O.A.No.112/2007 and this Tribunal, vide Order dated 2.3.2007 disposed of the same at the admission stage observing that limited transfer liability is available as per the letter dated 17.7.2006 issued by the Department of Posts and further as per the letter dated 12.9.1988, while offering alternative .........4 4 appointment to EDA in a place other than the place where he was originally holding the post, to mitigate hardship, such EDA may be allowed to be appointed in a post that may subsequently occur in the place where he was originally working without coming through Employment Exchange. Taking those two letters dated 12.9.1988 and 17.7.2006 into consideration, this Tribunal disposed of the OA at the admission stage itself by giving direction to the respondents to consider the applicant's case in the light of the provisions under the caption of Exceptions occurring on page-96 of E.D. Agent Rule extracting in Department of Posts letter dated 12.9.1988 and also the communication of the Department of Posts, vide letter dated 17.7.2006 and to pass a speaking order within two weeks. Thereafter, respondent no.4 passed the impugned order on 16.3.2007 stating that by the time the applicant submitted representation for transfer on medical grounds, notification had already been issued on 29.12.2006 observing usual formalities. Only after the issue of notification, the applicant made representation on 8.1.2007 for transfer to the post of BPM, Jonnagiri BO, on medical grounds producing the medical certificate dated 8.1.2007 and that by that time, the selection process was already started thereby the application of the applicant was not processed. It is further stated in the impugned order that as the notification was already issued by the respondent no.4, he is not supposed to cancel his notification suo-moto and there are no directions against the selection process and the selection process has been completed in normal course and the file has been submitted to the PMG, Kurnool, on 14.2.2007 for scrutiny and to pass further orders. In the impugned order, respondent no.4 further stated that the Directorate orders contained in the letter dated 12.9.1988 under ED (Conduct & Service) Rules, 1969, have been replaced with the new set of Rules called GDS (Conduct & Employment) Rules-2001, therefore the said letter cited by this Tribunal in its Orders dated 2.3.2007 are obsolete, and that as .........5 5 per the letter dated 17.7.2006, relating to limited transfer liability, the respondent no.3 is only the competent authority to consider the transfer to the GDS officials subject to fulfillment of the prescribed conditions and not respondent no.4, and therefore, it is not possible for respondent no.4 to consider the transfer of the official to the notified post of BPM, Jonnagiri BO. The said impugned order is now under challenge.
4. The applicant reiterated the grounds on which he sought for transfer in his representation to the respondents 3 and 4. He submitted that the letter dated 17.7.2006 issued by the Ministry permits one time transfer of GDS employees at the request of the GDS employees subject to fulfillment of certain conditions and that conditions being the medical grounds and that the applicant satisfies the conditions and that inspite of the specific orders given by this Tribunal, the respondent no.4 rejected to re-consider the case of the applicant on some technical grounds. The impugned orders, according to the applicant, are not sustainable in law.
5. The respondents contested the application and filed reply admitting the fact that the applicant worked as EDBPM, Jonnagiri BO on provisional basis from 13.3.1987 to 30.8.1990 and he was subsequently terminated on account of the regular employee, who was on put-off duty, was reinstated. Later, his name was kept in waiting list for absorption against future vacancies and thereafter he was appointed as EDBPM, Peravali on 12.3.2000, as there was no vacancy of Jonnagiri Branch Office at that time. It is also admitted in the reply that the post of BPM, Jonnagiri BO, fell vacant due to the death of regular incumbent on 24.5.2006. It is also admitted that the applicant submitted representation dated 8.8.2006. But, according to the respondents, in the said representation the applicant claimed that he was a thrown out official. The respondents further pleaded that consequent on coming up of GDS ( Conduct & Employment ) .........6 6 Rules,2001, the earlier ED(Conduct & Service) Rules,1964 have become obsolete and that as per the provision (iv) below Note-II in Rule 3 of GDS (Conduct & Employment) Rules, 2001, the Sevak shall not have any transfer liability. The respondents further pleaded that even the letter dated 17.7.2006 permits only limited transfer liability to the GDS under specified circumstances. The respondents submitted that where the GDS himself/herself suffers from extreme hardship due to a disease and for medical attention/treatment, such transfer may be allowed on production of a valid medical certificate from the Medical Officer of a Government Hospital. But the contention of the respondents is that in the representation dated 8.8.2006, the applicant did not ask for transfer on the ground that he is suffering from such disease and it is only in the representation dated 8.1.2007, for the first time, the applicant sought for transfer on medical grounds by which time the notification was already issued on 29.12.2006. Therefore, his representation was not considered. The respondents further pleaded that the respondent no.4 is not competent to pass transfer orders under the new rules. The respondents reiterated the facts mentioned in the impugned order.
6. The points that arise for consideration in this application are -
(i) Whether the respondents ought to have considered the case of the applicant for transfer from GDS/BPM, Peravali to GDS/BPM, Jonnagiri ?; and
(ii) Whether the impugned orders are not sustainable in law;
7. Points (i) and (ii):
It is not disputed that the applicant is a native of Jonnagiri Village having his own house and he served as GDS BPM for 3 1/2 years and the earlier incumbent was placed on put-off duty. It is also not disputed that the applicant's services were terminated only on account of reinstatement of the earlier incumbent. It is also not disputed that later, taking into consideration the services .........7 7 of the applicant as GDSBPM for a period of 3 1/2 years, his name was kept in waiting list to enable to utilize his services on regular basis as and when vacancies of BPM arise at any place. It is also not disputed that when a regular vacancy at Peravali arose, the applicant was appointed on regular basis to that post as by then there was no vacancy at Jonnagiri. It is also not disputed that as per the instructions of Directorate's letter No.43-27/85-Pen., (EDC & Trg.), dated 12.9.1988, where EDAs become surplus due to abolition of posts and they are offered alternative appointments in a place other than the place where they were originally holding the post, to mitigate hardship, they may be allowed to be appointed in a post that may subsequently occur in the place where they were originally working without coming through Employment Exchange. It is also not disputed that on 17.7.2006, the Ministry gave instructions permitting one time transfer of GDS under certain circumstances. One of the circumstances being on medical grounds of the GDS employees. It is also not disputed that the applicant in his representation dated 8.1.2007, stated that he is suffering from Chronic Bronchitis and Bronchical Asthama and in support of the same, he submitted a medical certificate also. It is not the case of the respondents that the said grounds pleaded by the applicant in his representation are not true. The respondents have not suspected the medical certificate produced by the applicant. The only ground on which the said representation was rejected is that by the date of such representation, a notification was already issued on 29.12.2006 i.e., about 10 days prior to the representation by the applicant. Admittedly, by then the selection was not finalized. When the selection was not finalized, nothing prevents the respondents from withdrawing the notification in order to accommodate an already working GDS employee, who is a native of that particular village and where he worked for a period of 3 1/2 years when the department needed a person to replace the incumbent, who was put-off duty, that .........8 8 too on medical grounds. In fact, taking that into consideration, this Tribunal, vide its Order dated 2.3.2007 passed in OA.No.112/2007, had directed the respondents to consider the request of the applicant in the light of the instructions given in letter dated 17.7.2006. Inspite of such a direction, the respondents have not considered the request of the applicant with due respect to the Order of this Tribunal. The Respondent No.4 has chosen to take technical grounds stating that he is not competent and it is only Respondent No.3, who is competent. It is very unfortunate for the Respondent No.4 to pass such an order. It is not as if Respondent No.3 is not a party to the earlier OA. In fact, in the operative portion, the first sentence reads that the Tribunal decided to give orders to the respondents to consider the applicant's case in the light of the provisions under the caption Exceptions occurring on page-96 of E.D. Agent Rule extracting in Department of Posts letter dated 12.9.1988. But, while in the next sentence, it is mentioned that a direction is issued to the 4th respondent to consider the case of the applicant. It does not mean that it is only R-4 that alone has to consider and not the other respondents. The Orders of this Tribunal are binding on all the respondents. If at all the 4th respondent is not competent, he shall refer the matter to the respondent no.3 inviting attention of the Orders of this Tribunal. Instead of doing so, the respondent no.4 has rejected the application on technical ground that he is not competent to pass transfer orders. Further, he has gone to the extent of stating that the letter dated 12.9.1988 cited by this Tribunal are obsolete as the E.D. (Conduct & Service) Rules, 1969 have been revised under the said Rules of CCS (Conduct and Employment) Rules, 2001. In our considered view, the 4th respondent did not act in the manner in which he is expected to act to comply with the directions of this Tribunal dated 2.3.2007 in OA.No.112/2007. It is made clear that as the selection process was not completed by the date on which the applicant made representation for .........9 9 transfer on medical grounds citing the letter dated 17.7.2006, there is no bar for the respondents to consider the request of the applicant for his transfer to Jonnagiri BO, where he worked for 3 1/2 years on provisional basis and where the applicant has got a house. It is the bounden duty of the respondents to remove the hardship of the applicant whenever there is any scope to remove such hardship. As the applicant had made representations to the 3rd respondent also and as the 3rd respondent was made party to the earlier OA, the 3rd respondent ought to have considered the representation of the applicant in the light of the observations made by this Tribunal, vide its Order dated 2.3.2007 in OA.No.112/2007.
8. Hence, we consider that this is fit case to set aside the impugned orders of the respondent no.4 and to give direction to the respondents 2 and 3, whoever is competent, to consider the representation of the applicant dated 8.1.2007 in the light of the observations made by this Tribunal in OA.No.112/2007, dated 2.3.2007 and pass orders in accordance with law within one month from the date of receipt of the Order. The respondents are also directed not to finalize the selection process in pursuance of the notification dated 28.12.2006 before the disposal of the representation of the applicant. Thus, the points are answered accordingly.
9. In the result, the OA is disposed of setting aside the impugned orders of the respondent no.4 and directing the respondents 2 and 3, whoever is competent, to consider the representation made by the applicant on 8.1.2007 for his transfer on medical grounds in the light of the observations made by this Tribunal in OA.No.112/2007, dated 2.3.2007 within one month from the date of receipt of a copy of this Order. The respondents shall not complete the selection .......10 10 process in pursuance of the notification dated 28.12.2006 till the representation of the applicant is disposed of in accordance with the law. There shall be no Order as to costs.
( R.SANTHANAM ) ( P.LAKSHMANA REDDY ) Member (A) Vice-Chairman Dated:this the 24th day of November, 2008 Dictated in the Open Court ******