Central Administrative Tribunal - Ernakulam
C.R. Binu vs Union Of India on 9 June, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A No. 1112 OF 2012
Thursday, this the 9th day of June, 2016
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P. GOPINATH, ADMINISTRATIVE MEMBER
C.R. Binu, S/o. K. Raman Nair,
GDS MD Varnickal (P.O),
Mavelikkara H.O., Residing at :
Binu Bhavan, Erazha South (P.O),
Chettikulangara. - Applicant
(By Advocate Mr. V. Sajith Kumar)
Versus
1. Union of India, represented by the
Secretary to the Government,
Department of Posts,
Ministry of Communications,
Government of India, New Delhi - 110 001.
2. The Chief Postmaster General,
Kerala Circle, Trivandrum - 695 101.
3. The Superintendent of Post Office,
Mavelikkara Postal Division - 695 101. - Respondents
(By Advocate Mr. N. Anil Kumar, Senior PCGC)
The application having been heard on 30.05.2016, the Tribunal
on 09.06.2016 delivered the following:
ORDER
Per: Mrs. P. Gopinath, Administrative Member The applicant is seeking consideration for appointment against the 5th vacancy notified for the year 2010 examination. In the absence of PH candidates, the vacancies will normally be filled centrally by the circle office. This Tribunal in O.A No. 436/2010 by judgment dated 14.02.2011 directed the respondents to recast the select list of postman for the year 2009 adverting to merit without providing quota for OBC. The above original application was moved by K. Sunitha Kumari and Smt Soumya along with few others of Mavelikkara Postal Division.
2. It is submitted that Smt Sunithakumari is presently working against the post of postman of the year 2010. Smt Soumya is awaiting appointment on recasting 2009 select list. On appointing them against 2009 vacancy, one vacancy will become vacant for the year 2010. Further one of the notified vacancies of the year 2010 is yet to be filled. It is submitted that the respondent had notified 5 vacancies for the examination held pursuant to the notification dated 27.10.2010. One vacancy was under GDS merit quota and 4 vacancies under departmental quota. Since none qualified under departmental quota, the above 4 vacancies were transferred to GDS merit quota taking the total vacancies to 5. However, only 4 persons were appointed. Of the 5 vacancies notified in the year 2010, one was reserved for physically handicapped. There was no claimant available under physically handicapped quota in Mavelikkara Postal Division. Therefore the vacancy ought to have been offered to a candidate on merit quota. There is no justification in keeping physically handicapped quota for promotion for years together. As per the scheme followed by the department, the physically handicapped vacancy is being offered centrally by circle office. It was not necessary to keep such PH vacancy unfilled in any particular division. In case of non-availability of candidates, such vacancies should have been offered to other division with PH strength.
3. The applicant is entitled to be accommodated as the 5 th candidate in the order of merit, without disturbing candidates appointed against OBC vacancies. The two OBC candidates are having same marks as that of the applicant in 2010 selection. Therefore, applicant is having no case to challenge appointment of present incumbents. The 3 rd respondent need not follow OBC reservation hereafter for appointment to the post of Postman post Annexure A-1 judgment. The applicant claims the 5th vacancy notified by the respondent, for physically handicapped. Since there is no claimant in the Mavelikkara Division satisfying the PH eligibility condition, there is no illegality in appointing the applicant against that post.
4. Relief sought by the applicant is :
' To declare that the applicant is entitled to be appointed against the 5th notified vacancy of postman in view of the directions in O.A 436/2010 to recast the 2009 and 2010 select list and without following reservation in promotion for postman and by de- reserving the unfilled PH vacancy at Mavelikkara.'
5. The respondent in their reply statement submits that as per the existing Recruitment Rules, 50% of the vacancies in the cadre of Postman would be filled by promotion of Group D officials who qualify in the examination according to their seniority in Group D cadre. Unfilled vacancies in this quota will be added to GDS merit quota. The vacancies approved under direct recruitment are for outsiders and are to be filled amongst GDS officials. Against the above mentioned Recruitment Rules, Smt Soumya S.D and Smt Sunitha Kumari had filed O.A. No. 436/2010 before this Tribunal. The relief sought is to direct the respondent department to adhere to the order of merit of the candidate based on the marks obtained by them in the postman examination held on 20.12.2009 in the GDS merit quota and to appoint them as postmen with effect from the dates of their entitlement in place of selected candidates under OBC quota. This Tribunal vide order dated 14.02.2011 allowed the O.A (Annexure A-1). The department had filed O.P (CAT) 1638/11 against the order in above O.A. No. 436/2010. The Hon'ble High Court of Kerala by common judgment dated 20.12.2011 dismissed the O.P (CAT) No. 1638/11 and connected cases stating in the judgment that:
'the benefit of this judgment will be extended only to those candidates who were applicants before CAT and who are the respondents in the present writ petitions.' As such the applicant herein has no locus-standi in the matter and claim for the said benefits. In order to implement the orders of the Tribunal in O.A No. 436/2010 the candidates selected under OBC quota were served with termination notice. Meanwhile, Smt Najithamol, Shri P.O. Rajesh, Shri D. Vijayan and Shri V. Anil Kumar who were appointed as Postmen in OBC quota had filed SLP 20142/2012 before the Hon'ble Supreme Court against the order of Hon'ble High Court in O.P. (CAT) No. 1638/2011 and 1095/2011. The SLP came up for admission before the Apex Court on 19.11.2012 and the Hon'ble Court was pleased to admit the same. Hence, the implementation of the common judgment of the High Court in O.P (CAT) No. 1638/2012 is kept in abeyance till the final outcome of the SLP pending before the Hon'ble Apex Court. In these circumstances the cause of action alleged in the O.A does not survive anymore.
6. Heard the learned counsel for applicant and respondents and the written submission made.
7. Respondents argue that the case of the applicant is barred by limitation under Section 21 of the Administrative Tribunal's Act 1985.
Moreover, it has been clearly stated in the Annexure R-1 judgment that 'the benefit of this judgment will be extended only to those candidates who were applicants before CAT and who are the respondents in the present writ petitions'. As such the applicant has no locus-standi to claim the said benefits as he has not been an applicant before this Tribunal or the Hon'ble High Court of Kerala and the Hon'ble High Court has clearly stipulated that the benefit of that judgment is applicable to the applicants only. It is submitted that the Hon'ble Supreme Court of India has granted interim stay on 13.03.2013 on SLP (Civil) 35223/2012, filed by the party respondents in the O.A No. 436/2010 (OBC candidates) and the SLP stands posted for final disposal.
8. The applicant is qualified in the Postman Examination 2011 and appointed as postman with effect from 31.01.2013. One OH vacancy under PH quota which was allotted from Circle Office is a back log vacancy which cannot be added to the merit quota of GDS. The back log vacancy which was allotted to the OH category will be filled only from that category and cannot be diverted to be filled in by other categories. The unfilled vacancies of these categories will be carried over to the next year. The applicant's contention is that there are no PH candidates in the Division and hence this PH vacancy can be transferred to any another Division where a PH qualified candidate is available. Respondent argues that Circle office has allotted one back log OH vacancy under PH quota for Departmental quota. As no departmental officials in this division had appeared in this examination under OH quota, the OH vacancy for departmental quota was kept as unfilled. As it is a back log vacancy, it cannot be diverted to other quota. The back log vacancy is the vacancy which is specifically allotted to a particular category. The unfilled vacancy under such categories will be carried forward to the next year. The vacancy position notified for the Postman examination for the year 2010 is as follows:
Departmental quota : UR = 3, OH - 1 (back log)
Direct recruitment quota : Seniority - UR-1, OBC-1 and
Merit UR-1
9. As no departmental candidates in Mavelikkara Division appeared for the examination, the 3 unfilled vacancies were transferred to the merit quota of GDS and their quota was increased to 4. Based on the roster maintained for direct recruitment, these 4 vacancies were categorized as UR-2 and OBC-2 and candidates were selected accordingly. It is submitted that even if for argument sake, the order in O.A. No. 436/2010 is implemented, the applicant herein would not find a place in the merit list as the vacancy would get exhausted before the applicant's turn as per merit could be accommodated, as she is the junior in the gradation list to those who secured the same marks. Also unfilled 'OH' back log vacancy would be carried forward to the next year and has to be filled up utilizing the same category thereby belying the contention of the applicant. Hence the O.A has no merit as the carry forward O.H quota cannot be transferred to benefit the applicant in this O.A.
10. Whereas we agree that the O.A does not succeed on merit and unfilled O.H vacancy cannot be transferred and has to be carried forward, we would advise the second respondent that in future while allotting the O.H vacancy, the O.H vacancy be allotted to those divisions where such potential OH candidates are available and not in a random manner. This may be done by calling for information from the Divisions in the Circle about potential GDS OH candidates available in the feeder category and allotting the vacancy on such availability. This would ensure appropriate filling up of such OH quota and also prevent heartburn of eating into other quota on the ground of non-availability.
11. The Original Application is dismissed as above with above direction. No order as to costs.
(Dated, this the 9th June, 2016)
(Mrs. P. GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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