Madras High Court
Union Of India (Uoi), Represented By The ... vs A. Suguna And The Registrar, Central ... on 24 November, 2005
Equivalent citations: 2006(1)CTC25, (2006)IILLJ972MAD, (2006)1MLJ266
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
Page 2032
1. Since the issue raised in all the Writ Petitions is common, they are being disposed of by the following common Order. Aggrieved by the individual orders of the Central Administrative Tribunal, Madras Bench, directing the respondents therein to include the applicants in the Dovetailed list and consider their case, Postal Department has filed the above Writ Petitions.
2. For convenience, we shall refer the case of the parties as stated in Writ Petition No. 5026 of 2003. According to the petitioner-Superintendent of Post Offices, Salem West Division, Salem, the post of Branch Postmaster, Kattanachampatti Branch Office in account with the Rasipuram Sub Post Office fell vacant on 4-3-98. Till a regular incumbent is selected and posted, the first respondent-A. Suguna was appointed purely on temporary basis for a period from 4-3-98 to 3-5-98, and it was subsequently extended from 4-5-98 to 15-11-98 . The said appointment was made with a specific condition that she would be terminated when regular appointment is made and she shall not have any claim to appoint to any post.
3. It is further stated that the vacancy for the post of Branch Postmaster, Kattanachampatti was notified and selection was done on 20-9-98. Page 2033 One A. Saraswathi who had secured highest marks in the 10th Standard was selected and appointed with effect from 16-11-98 . The first respondent also applied for the post, but was not considered as she did not fulfil the eligibility conditions. Further, since the other applicant-A. Saraswathi was selected and appointed by following due process, the temporary appointment given to the 1st respondent was terminated on 16-11-98. The first respondent filed O.A. Nos. 9 73/98 and 1032/98 challenging the selection of A. Saraswathi for the said post. The Tribunal by order dated 16-9-99, dismissed both the Original Applications with an observation that the applicant/first respondent cannot claim regularisation based on her temporary service. Therefore, she filed another Original Application, viz., O.A. No. 978/200 1 seeking for a direction to include her name in the dovetailed list based on her temporary service from 4-3-98 to 16-11-98. The said O. A. was disposed of by the Tribunal with direction to the respondent therein to consider the request of the applicants/1st respondent.
4. It is the further case of the petitioner that as per letter No. 41-286/87-PE II dated 14-12-87 of the Director General of Post, New Delhi, provisional appointments which are expected to continue for a long period should be made observing the due formalities of selection. The persons having worked as ED Agents in substitute capacity or provisional basis cannot claim the benefit or regularisation on the ground that they have completed 240 days of service. The Chief Postmaster General, Tamil Nadu Circle in his instruction No. REP/84-7 3/93 dated 23-12-93, has instructed that hereafter substitutes are not engaged in ED vacancies for long periods indefinitely. In case of prolonged leave vacancies, a provisional appointment should be made through the Employment Exchange after observing the due process. The said instruction also states that the dovetailed list should be prepared by each Division showing the names of the candidates, their status, date of initial engagement and date of birth etc., at the Regional Office level and Circle Office. The first respondent who worked as Branch Postmaster from 4-3-98 to 16-11-98 on an arrangement made without any due process of selection pending regular appointment is not eligible to be considered to include her name in the dovetailed list. The temporary and adhoc appointment of the first respondent cannot be treated as provisional appointment and hence her request was examined and considered keeping in view, the departmental rules and instructions and found that she was not eligible to be included in the dovetailed list. The same was communicated by the petitioner by letter dated 4-1-2002. Aggrieved by the said communication, the first respondent had filed O.A. No. 216/2002 before the Central Administrative Tribunal, Chennai. The department filed a detailed reply statement explaining the position that the claim of the applicant was found not entertainable as the temporary appointment given to her was made without due process of selection. The Tribunal without considering the case on merits has allowed the Original Application and directed the petitioner-department to include her name in the dovetailed list. Questioning the same, the Superintendent of Post Offices has filed Writ Petition No. 5026 of 2003. Similar averments have been made in the other writ petitions.
Page 2034
5. Heard Mr. V.T. Gopalan, learned Additional Solicitor General for the Department; Mr. C. Selvaraju, learned Senior Counsel and Mr. M. Radhakrishnan and others for the contesting respondents.
6. Mr. V.T. Gopalan, learned Additional Solicitor General appearing for the Department, after taking us through various orders of the Tribunal, Scheme dated 23-12-1993 framed by the Chief Postmaster General for appointment of Casual Labourers and ED Outsiders, would contend that the applicants therein/contesting respondents in these writ petitions have no vested right for claiming permanent appointment, merely because they worked for certain periods without satisfying all other required conditions. He also contended that the Scheme has been framed for regular absorption of candidates in ED vacancies as a one time measure adopting cut-off date as 11-2-1988, therefore it cannot be extended to all persons endlessly. He further contended that Clause 4 (g) of the Scheme cannot be read in isolation and by applying the Scheme as whole, it cannot be extended for ever and future cases also. On the other hand, spearheading the main argument on behalf of the applicants/contesting respondents, Mr. M. Radhakrishnan would submit that first of all, the writ petitions are not maintainable and secondly, the applicants are substitutes for Outsiders and their names should be approved by the Department as directed by the Tribunal. He also contended that the Full Bench decisions of the Tribunal have been implemented by the Department for the last 12 years. He further contended that based on the orders of the Tribunal, the Department, particularly the Postmaster General issued various orders implementing the Scheme by including their names in the dovetailed list, hence there is no merit in the present writ petitions and the same are liable to be dismissed. Mr. C. Selvaraju, learned Senior counsel and other learned counsel reiterated the same.
7. We have carefully considered the relevant materials and rival submissions.
8. The post of Extra Departmental Agent (EDA)/Gramin Dak Sevak (GDS) is a part-time post. The Supreme Court has in the case of Superintendent of Post Offices v. P.K. Rajamma, , held that though the said post is outside the regular Civil Services of the Union of India, it is a civil post. The EDAs/GDSs are not entitled to pension. Though this post is a civil post, no Rules have so far been framed regulating the recruitment and conditions of service of EDAs/GDSs under Article 309 of the Constitution. Their conditions of service were earlier governed by administrative instructions called "P and T Extra Departmental Agents (Conduct and Service) Rules, 1964" and with effect from 24-04-2001, they were governed by the Department of Posts, Gramin Dak Sevak (Conduct and Employment) Rules, 2001. The method of recruitment to this post is prescribed by administrative instructions issued by the Postal Board or by the Director General (Posts). When this post is filled in on regular basis, it is done through Employment Exchange and local notification and when it is filled in or provisional basis, Page 2035 Employment Exchange is not normally approached and local notification is not ordinarily issued. For the first time, the Director General (Posts) vide his letter dated 14-12-1987 informed the competent authorities that when a provisional appointment is expected to continue for a long period, provisional appointment to the post in question should be made through Employment Exchange and local notification. What is long period was never indicated to the appointing authorities and, therefore, they have been making provisional appointments by considering eligible candidates directly.
9. So far as the post of EDA or GDS is concerned, there are two kinds of appointments. One is provisional appointment and the other is appointment of a substitute (loosely called ED outsider) by a regular EDA/GDS. When the regular EDA/GDS is on leave, he engages a person as his substitute and the substitute is approved by the department, but the regular EDA is responsible for the functioning of his substitute in all respects. No doubt, substitutes are working under the supervision of the department. Both the appointments viz., provisional and substitute are being made by the appointing authorities strictly as per the administrative instructions issued by the Director General (Posts), and the administrative instructions are clear that only when a provisional appointment is expected to continue for a long period, appointment should be by way of sponsorship through Employment Exchange and publication of local notification.
10. It is brought to our notice that in Chennai City, apart from the category of EDA/GDS, a large number of casual labourers (full time and part-time) have been discharging the duties of three categories of posts viz., Postman/Group D/EDA:GDS. These casual labourers approached the Central Administrative Tribunal, Chennai in 1987 for regularisation of their services. The Central Administrative Tribunal, Chennai on 11-2-1988 directed the Tamil Nadu Circle of the Postal Department to absorb them regularly as and when vacancies for the post of EDA/GDS arise in the city. This direction was issued by the Tribunal in O.A. No. 769/1987.
11. After the above order by the Central Administrative Tribunal, Chennai Bench, a large number of ED substitutes approached the Tribunal for a similar direction. The Tribunal vide its order dated 20-4-1990 in O.A. No. 811 of 1988 batch reiterated the cut-off date viz., 11-2-1988 and directed that there should be two seniority lists viz., one for casual labourers (full time and part time) and the other for ED provisional appointees/ED substitutes and that both the lists should be dovetailed on the basis of the date of their initial engagement and that thereafter they should be absorbed against the vacancies for the post of EDA/GDS. The department started implementing the judgment dated 20-4-1990 in O.A. No. 811 of 1988 and batch. All these three categories of employees viz., casual labourers (full time and part time), ED provisional appointees, and ED substitutes were getting absorption against regular EDA/GDS vacancies. But the department continued to engage these three categories of employees even after 20-4-1990 and there were eligible persons to be absorbed who were recruited after 11-2-1988. These employees felt that the cut-off date was unreasonable. The employees who were recruited after 11-2-1988 but who were similarly placed like those recruited prior to 11-2-1988 approached the Central Page 2036 Administrative Tribunal, Chennai in V. Kumar and Ors. v. Union of India (1994) 27 ATC 346 and contended that the cut-off date 11-2-1988 should be removed from the scheme and that eligible employees should be absorbed. On 23-6-1993 the Chief Postmaster General, Tamil Nadu Circle submitted a scheme to the Central Administrative Tribunal (vide paragraph 17 of V. Kumar's case) for its perusal and the said scheme was approved by the Tribunal. Thus, as rightly pointed out by counsel for contesting respondents, the scheme of dovetailed list, which is the subject matter of these writ petitions, was evolved as desired by the petitioners-department in these writ petitions. The salient feature of the new scheme evolved in V. Kumar's case is when an employee is directly engaged by the department (be it casual labourer (full time and part time), or EDA/GDS provisional appointee, the cut-off date 11-2-1988 would not be applicable. In other words, the cut-off date is applicable only to EDA/GDS (substitutes) and not others.
12. Pursuant to the judgment of the Tribunal in V. Kumar's case, a Scheme of dovetailed list was evolved by the department vide Circular letter dated 23-12-1993. The Scheme was being implemented. Whenever a doubt arose, the scheme was implemented in the light of the judgment in V. Kumar's case. When the scheme was sought to be violated by means of a circular letter dated 5-7-1995, a challenge was raised by the affected persons and the Full Bench of the Tribunal vide its order dated 17-4-2000 in O.A. No. 386 of 1998 declared the circular illegal and directed implementation of the scheme. Though the Tribunal in paragraph 16 of its judgment in V. Kumar's case has categorically held that a provisional appointee comes into the picture as a stop gap arrangement, the department started raising doubts as to the terminology "provisional appointment" and stopped implementing the scheme of dovetailed list in some Postal Divisions. The department took a stand that only those provisional appointees who were recruited through Employment Exchange and local notification could be absorbed as EDA/GDS as per the scheme. Ultimately, another Full Bench of the Tribunal vide its order dated 05-03-2004 in O .A. No. 436 of 2003 has held that there cannot be any difference from provisional appointment and appointment on stop gap arrangement and that the scheme dated 23-12-1993 would hold good for these appointees as earlier interpreted. This Full Bench judgment and other individual orders are under challenge in this batch of Writ Petitions.
13. In these batch of Writ Petitions, we are very much concerned with three orders of the Central Administrative Tribunal, the first one is the common order passed in O.A. No. 811/88 etc., dated 2 0-4-1990; the next one is the Full Bench decision of the Tribunal dated 17-4-2000, made in O.A. No. 386/98; and the last one is the Full Bench decision of the Central Administrative Tribunal dated 5-3-2004 passed in O.A. No. 436/2003.
14. Coming to the earliest order among he three, National Postal Temporary Employees' Union and some of the adversely affected persons who have been working as outside candidates in the Postal Department for many years, filed O.A. No. 811/88 etc., before the Central Administrative Tribunal. It was their claim that they are not being absorbed or regularised. After highlighting the grievance and problems that were being faced by the applicants and following the decision of the Supreme Court in Inder Pal Yadav and Ors. v. Union of India (1935 (2) LLJ 406); Page 2037 and Daily Rated Casual Labour Employed in P&T v. Union of India (1988 (1) LLJ 370), the Tribunal directed the department to frame a Scheme for regular absorption of all categories of casual labour who have completed 240 days of service in any two years and who are otherwise eligible for absorption against Group 'D' posts and appointment against vacancies in the posts of Extra Departmental Agents in so far as the Madras Circle is concerned. They also issued further direction to be followed while drawing up the scheme.
15. It is not in dispute that Postmaster General, Tamil Nadu Circle, Madras-2 as a follow-up action issued a communication to all officers at the Regional level, giving instructions for preparation of a dovetailed list for appointment to ED posts from among casual labourers and ED outsiders. Mr. V.T. Gopalan, learned Additional Solicitor General, submitted that though provisional appointees of ED post appointed after 11-2-88 and allowed to continue for more than 240 days will have to be included in the dovetailed list if we consider the entire scheme and taking note of the fact that the same having been framed as a "one time measure" adopting the cut-off date as 11-2-88, the applicants are not justified in asking the relief for ever and the Tribunal is also not justified in acceding to their request. It is true that the scheme as seen from the letter of the Postmaster General dated 23-12-93 shows that it is only a one time measure and the cut-off date is 11-2-88. However, by reading of Clause 4 (g) of the Scheme which leads to an inference that persons engaged and who have completed 240 days in any 2 years even after the cut-off date, namely, 11-2-88 will also be included in the dovetailed list, based on their seniority. It is also brought to our notice by the learned counsel appearing for the applicants and contesting respondents before us that the department itself recognised, implemented and included the eligible persons in the dovetailed list even after 11-2-88.
16. Now let us consider the order of the Full Bench of the Tribunal dated 17-04-2000 made in O.A. No. 386/1998. In that decision, the Full Bench after taking note of the directions issued in O. A. No. 811 of 1988 dated 20-4-90, and after finding that the view taken by another Bench of the Tribunal in O.A. No. 760/92 dated 30-9-93 is contrary to principles laid down in O.A. No. 811/88 and also after finding that the orders passed in O.A. No. 760/92 on 30-9-93 has not been taken note of by the Tribunal in the judgment reported in 1994 27 ATC 346 (V. Kumar's case) where the issue has been considered in extenso and following the principles laid down in O.A. No. 811/1988, rejected the view expressed in O.A. No. 760/92. Thereafter, based on the orders of V. Kumar's case, the Full Bench observed that it is incumbent on the part of the department to complete the implementation of the Scheme of regularisation of Outsiders/ED Outsiders, framed in pursuance of the orders dated 20-4-1990 in O.A. No. 811/1988 and quashed the Circular dated 5-7-95 which is against the views expressed by two Administrative Tribunals in O.A. No. 811/1988 and the decision in 1994 27 ATC 346 (V. Kumar's case). We have already expressed that the direction made in O.A. No. 811/1988 are in accordance with law and in fact, the department issued necessary scheme in compliance of the said Page 2038 orders. Inasmuch as in O.A. No. 386/98 the Full Bench has merely approved the directions issued in O.A. No. 811/88, we also concur with the said directions.
17. Coming to the order dated 5-3-2004 made in O.A. No. 436/2003, as rightly pointed out, it is only a clarificatory order, clarifying the position and the Scheme dated 23-12-93 framed pursuant to the direction of the order in O.A. No. 811/88. The Tribunal in V. Kumar's case, has categorically held that a provisional appointee comes into the picture as a stopgap arrangement. It is also brought to our notice that the scheme of dovetailed list was evolved wholly on the basis of the stand of the department. This is evident from paragraphs 16 and 17 of V. Kumar's case of the Tribunal which reads as under:-
"16. On the other hand, a provisional appointee comes into the picture as a stopgap arrangement when the department is not able to fill up a vacancy on regular basis immediately either by getting names sponsored by the employment exchange or through local notification. He also undergoes selection by the department. It has been held that a provisional appointee allowed to continue for more than 240 days is entitled to have his name included in the waiting list on his termination consequent on the appointment of a regular incumbent, for eventual appointment. Further, as per letter No. 43-4/77-Pen dated 18-5-1979 extracted supra, provisional appointees who had put in more than three years' service at the time of their discharge are entitled to have their names placed in a waiting list for eventual appointment. Hence we are not able to agree with the contention of the learned counsel for the applicant that if a substitute is not given any right, it will give rise to a discrimination between a substitute and a provisional appointee.
17. In fact, the learned counsel for the respondents argued that there are several decisions rendered by this Tribunal on this aspect after taking into consideration the circumstances of each case and as such it would be better to lay down a general principle in this regard so that the department could follow the same uniformly. Hence we allowed the learned counsel for the applicant as well as for the respondents to argue the matter elaborately. The learned counsel for the respondents pointed out that whereas in O.A. No. 811 of 1988 batch, the Postmaster General, who is the competent authority to issue instructions and Circulars to the subordinate offices is added as a respondent, in O.A. Nos. 748 of 1990 and 104 of 1991 only the Senior Superintendents of Post Offices concerned have been added as respondents. In O.A. No. 27 of 1992 the Postmaster General, Trichy Region, Trichy is added as a respondent and in O.A. No. 1158 of 1991 only the Senior Superintendent of Post Offices has been added as a respondent. According to the learned counsel for the respondents, when the Postmaster General, Tamil Nadu Circle, Madras (Chief Postmaster General) is not added as a respondent, the decisions of this Tribunal are implemented by the concerned Senior Superintendent of Post Offices, unaware of the other decisions communicated to the other Superintendents of Post Offices. Hence this Tribunal directed the Chief Postmaster General, Tamil Nadu Circle to state what is his stand in respect of a substitute vis-a-vis a provisional Page 2039 appointee. The reply filed by the Chief Postmaster General, Tamil Nadu Circle, Madras, on 23-6-1993 reads as follows:
"The stand of the Department is as under:
(i) In respect of substitutes engaged before 11-2-1988 and who have completed 240 days in any two yeas before 11-2-1988 they were brought in the dovetailed list and considered for absorption as EDDAs as and when their turn comes.
(ii) In respect of substitutes engaged before 11-2-1988 but completed 240 days of service in any two years after 11-2-1988, they were also brought in the dovetailed list and seniority regulated as per direction in OA No. 811 of 1988.
(iii) In respect of substitutes appointed after 11-2-198 8 they cannot be brought in the dovetailed list as this will open floodgate and may not be able to do justice to the outsiders coming from Employment Exchange as the number of ED posts/vacancies is limited.
(iv) In respect of provisional appointees who are appointed after 11-2-1988 and allowed to continue for 240 days in any two years as per judgment in OA No. 811 of 1988, they will also be brought in the dovetailed list and they will be considered for absorption as and when their turn comes up. The seniority of these candidates will be regulated as per the direction in OA No. 811 of 1988."
The stand of the department has now been made clear. Whereas substitutes appointed prior to 11-2-1988 and who have completed 240 days of service in any two years either before or after 11-2-1988 have been placed in the dovetailed list, and substitutes appointed after 11-2-19 88 have not been included in the said list. In respect of provisional appointees, even those appointed after 11-2-1988 and allowed to continue for more than 240 days have also been placed in the dovetailed list. Even otherwise, the provisional appointees are entitled to have their names included in the dovetailed list in view of the letter dated 18-5-1979 of the DG P&T (supra) provided they have put in 3 years of service. Further, as already held, the substitutes appointed after 11-2-1988, except those whose cases have been specifically decided by this Tribunal in view of the peculiar circumstances of the case, are not entitled to any claim over the department as they entered the department through back door which practice has now been deprecated by the Supreme Court as discussed earlier."
The above reference of the Tribunal amply show the stand of the department. It is not in dispute that the said decision became final when the scheme was framed by the department on 23-12-93. As rightly pointed out by Mr. M. Radhakrishnan and other learned counsel for the contesting respondents, the finality was reiterated in two Full Bench judgments dated 17-4-2000 in O.A.386/98 and 5-3-2004 in O.A.436/2003. As said earlier, having not challenged V. Kumar's case and earlier Full Bench order dated 17-4-2000 made in O.A. No. 386/98 confirming V. Kumar's case in every respect and having implemented the scheme as per V. Kumar's case for about a decade, we are of the view that the challenge of the Page 2040 department to a clarificatory order passed by the Full Bench of the Tribunal dated 05-03-2004 made in O.A. No. 436/2003 cannot be sustained. As rightly pointed out by Mr. K.M. Ramesh, one of the learned counsel appearing for the contesting parties, having failed to challenge the earlier orders including the Full Bench judgment in O.A. No. 386/98 dated 17-4-2000 and of the fact that various orders passed by the Tribunal having been implemented by the department, they are not justified in questioning the order dated 5-3-2004 passed in O.A. No. 436/2003. The mistake on the part of the department cannot be put against the employees when various clauses in the scheme are in their favour. No doubt, when the learned Additional Solicitor General has argued that after coming into force of the service rules for Postal Gramin Dak Sevak in 2001, there is no question of applying the scheme, we are of the view that department is liable to extend the benefit of the scheme until the last eligible casual labourer full time and part time EDA/GDS (provisional appointee or substitute or outsiders) is absorbed against the existing and future vacancies of GDA/ GDS. The department is at liberty to inform the future appointees that the said scheme would not applicable to them if the department feels that this scheme becomes a never ending process. It is also brought to our notice that after coming into force o f "Department of Posts Gramin Dak Sevak (Conduct and Employment) Rules, 2001", the appointment of substitutes for outsiders and provisional appointees are not made based on the scheme and the rules alone are being followed. It is also brought to our notice that except the persons concerned in these writ petitions, in view of the dispensation of the appointment and selection as per the scheme, the department is not required to consider others.
18. Under these circumstances and in the light of our discussion, we are in agreement with the conclusion arrived at by the Tribunal in the orders referred above and unable to accept the stand taken by the department. Consequently all the Writ Petitions fail and are accordingly dismissed. No costs. Connected miscellaneous petitions are closed.