Central Administrative Tribunal - Madras
R Mahes Alais Maheshwaran vs D/O Post on 29 February, 2024
l OA No.310/00144/2021-
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/316/00144/2021
Dated this Thursday, the 29" day of February,Iwo Thousand Twenty Four
CORAM:
HON'BLE MR. VARUN SINDHU KUL KAUMUDI,MEMBER{(A)
&
HON'BLE MR M. SWAMINATHAN, MEMBER(J)
- R. Mahes @ Maheshwaran, S/o K. Ramalingam Late, 12/1, Omanthu
Kovil Lane, Thenkarai, Periyakulam 625 601, Theni District.
... Applicant
By Advocate M/s V. Vijay Shankar
Vs.
The Union of India, Represented by the Superintendent of Post Offices,
Theni Division, Theni 625 531. .... Respondent
By Advocate Mr. K. Rajendran
2 OA No,310/00144/2021
ORAL ORDER
(Pronounced by Hon'ble Mr. Varun Sindhu Kul Kaumudi, Member (A)) The applicant has filed the OA under Section 19 of the | Administrative Tribunals Act, 1985, seeking the following relief:
* to call for the records of the respondent in its No.BII/Mise/Vol.IV/dlgs dated at Theni 625531 dated 09.11.2020 and quash the same and consequently regularize the services of the applicant in terms of the judgements of the Hon'ble High Court Madras vide its judgement reported in 2006 (1) CTC (25) dated 24.11.2005 and later confirmed by the Hon'ble Supreme Court and as followed by this Hon'ble Tribunal in OA 290 and 291/2009 dated 15.6.2010 with all consequential and attendant benefits and pass such other order or orders as may be deemed fit and thus render justice."
2 + At the outset, the learned counsel for the applicant states that the case of the applicant is squarely covered by the order, dated 21.12.2023, passed by this Tribunal in OA 1890/2016 & batch of cases.
3. Learned counsel for the respondents does not dispute the disposal of the matters. However, he stands by the averments made in the counter affidavit.
4. Having gone through the records of the case and the order passed by this Tribunal in OA 1890/2016 & batch, we find that there are striking similarities between the facts of the present case and those in OA 1890/2016 & batch.
5. 3 OA No.310/00144/2021 For the sake of brevity, the said order, dated 21.12.2023, in OA 1890/2016 & batch, is reproduced hereunder:-
"The issues involved in all the OAs and the reliefs sought for in all the OAs are similar. Hence, these applications are heard together and disposed of by a common order. For the sake of convenience, OA 1890/2016 is taken as the lead case,
2. The applicants have filed this OA under Section 19 of the Administrative Tribunal's Act, 1985, seeking the following relief:"OA 1890/2016
To direct the Respondents to absorb the Applicants as GDS on considering their long years of service as Outsiders/Substitutes GDS; and To pass such further or other orders as this Hon'ble Tribunal may deem Jit and proper in the circumstances of the case.OA 27/2017
i) To call for the records of the Ist Respondent pertaining to his order which is made in No.17-39/4/2012-GD§S dated 14.01.2015 in so far as it relates to fixing cut off date as 01.09.1993 and the order of 3rd Respondent Memo No.FP/STA/OA-787/2015 dated 14.12.2016 and set aside the same; consequent to, ii} direct the Respondents to absorb the Applicants as GDS with all service benefits; and, OA 303/2017 I. To call for the records of the 3rd respondent pertaining to his proceedings made in No.B2/CAT/2016 dated 07.12.2016 and set aside the same; consequent to,
2. direct the respondents to extend the benefit of judgment in the case of Suguna and others to the applicant and absorb him as GDS in any one of the vacant post on considering his long years of service rendered on provisional basis as well as an outsider for about 26 years; and OA 642/2017
1. To call for the records of the respondent pertaining to his order made in No: B4/GDS/Digs dated 14.01.2016 and set aside the same, consequent fo, 2, direct the respondent to absorb the applicant on regular basis as Gardener or as MTS or in any other cadre such as GDS on considering the long years of service rendered by the applicant i.e. nearly about 31 years hy giving relaxation in age, educational qualification etc.. with all service benefits; and OA 1079/2017 4 OA No.310/00144/2021 ep a i. To cail for the records of the respondent pertaining to his order which 4 is made in No.B3/Misc-POU/Dlgs dated 30.03.2017 and set aside the 4 same, consequent to;
2. direct the respondent to absorb the applicant as GDS on considering 4 his long years of service as outsiders/substitutes GDS; and '4 OA 1080/2017 ?
i) To call for the records of the I st Respondent pertaining to his order a which is made in No.17-39/4/2012-GDS dated 14.01.2015 in so far as it Ss relates to fixing cut off date as 01.09.1993 and the order of 3rd 4 Respondent No.BI/GDS/Misc/Digs dated 25.07.2016 and set aside the same; consequent to, 1
ii) direct the Respondents to absorb the Applicant as GDS with all service . d benefits; and, 3 OA 1230/2017 the respondents to appoint the applicant on regular basis as GDS (MD) (To set aside the I! Respondent's order dated 30.09.2016 and to direct 4 in the respondents' office. i OA 3530/2018 To set aside the If Respondent's order No.IP(W)/Misc/Digs dated at Nagercoil 1, the 01.02.2018 and direct the Respondents to appoint the applicant as GDS (MD) Outsider against any one of the vacancies in Kanyakumari District in the respondents' office.
OA 668/2019we WHEGRBOBH. spas uilte an
1. To call for the records of the 3rd respondent pertaining to his Instruction/order which is made in No.17-39/4/2012-GDS dated 14.01.2013 in so far as the condition of cut off date 01.09.1993 prescribed for absorption as GDS is concerned and set aside the same, "g consequent to; 4
2. direct the respondents to absorb the applicants as GDS against vacant Posts in the light of the instructions issued by the Postal Directorate made in GL. Dept. of Posts, Lr No.65-24/88-SPB.J, dated the 17th May 1989 and instructions made in D.G., Posts, Letter No.17-141/88-EDC camp:
Trg., dated 06.06.1988; or
3. direct the respondents to absorb the applicants by framing a scheme as done in the earlier occasions as per the judgment of this Hon'ble Tribunal made in O.A.No.811 of 1988, and:
OA 669/20191. To call for the records of the 3rd respondent pertaining to his instruction/order which is made in No.17-39/4/2012-GDS dated 14.01.2013 in so far as the condition of cut off date 01.09.1993 ) OA No.310/00144/2021 prescribed for absorption as GDS is concerned and set aside the same, consequent ta;
2. direct the respondents to absorb the applicants as GDS against vacant posts in the light of the instructions issued by the Postal Directorate made in G.L Dept. of Posts, LrNo.65-24/88-SPB.1, dated the 17th May 1989 and instructions nade in D.G., Posts, Letter No.17-141/88-EDC &
Trg., dated 06.06.1988, or Peni Ar ET fe. aoe
3. direct the respondents to absorb the applicants by framing a scheme as done in the earlier occasions as per the judgment of this Hon'ble Tribunal made in O.A.No.81] of 1988, OA 8357/2019 ) To call for the records of the 5th respondent pertaining to his order which is made in No.B3/Misc/04/2018-19/digs dated 18.01.19 and the order of 4 th respondent made in No.STB/GDS/Mise dlgs/2016/CCR dated 09.04.2019 and set aside the same, consequent to;
ii) direct the respondents 2 toe 5 to provide reservation for Ex- serviceman/ward of Ex-serviceman in GDS appointments as in the case of EWS, SC/ST, OBC, PH, ete., and thereby to,
iii) direct the respondents 2 to 5 ta absorb the applicant as GDS on considering the long years of service rendered by him as well as in the capacity of the ward of Ex-serviceman; and, OA 1075/2019
1. To call for the records of the Ist respondent pertaining to his letter made in No.17-39/4/2012-GDS dated 14.01.2015 in so far as it concerned with the cutoff date as 01.09.1993 and also call for the records of the 2nd respondent pertaining to his order made in No.BII/Misc./Digs dated 03/06.02.2017 and set aside the same; consequent to,
2. direct the respondents to absorb the applicant as GDS with all attendant benefits OA 1207/2019
i) To cail for the records of the 2nd respondent pertaining to his e-mail instructions dated 22.10.2018 blacklisting the applicant from engaging him in any leave/vacant places in any office under his Sub-Division and also the order of the Ist respondent made in No.B2/OA762/2019 dated 31.07.2019 and set aside the same, consequent to;
if) direct the respondents to re-engage the applicant as GDS outsider and thereafter to regularize the service of the applicant as GDS by extending the benefit af judement of this Hon'ble Tribunal made in the case of Frudhayaraj and others, and OA 417/2020 6 OA No.310/00144/202 |
i) To call for the records of the 2nd respondent pertaining to his order made in DOP' OM NO. 17-31/2016 - GDS dated 30.10.2019 and set aside the same in so far as denying absorption as GDS ta Casual Labourers; consequent to
ii) direct the respondents to keep vacant about 96 posts of GDS BPM/GDS ABPM for the applicants and further direct the respondents not to finalize the selections and appointment to the post of GDS BPM/GDS ABPM in Tamil Nadu Circle for which notification made in STC/12-GDS ONLINE/2020 dated 01.09.2020 by the 3rd respondent."
3. The brief facts of the case, as stated by the applicants, in a nutshell, are as under:
In OA 1890/2016, the I" Applicant completed more than 25 years of service as GDS outsider, The 2™ Applicant rendered service for about 9 years and 13" Applicant rendered service for about 7 years. Other Applicants rendered more than 10 years of service. They all are married and are working as Substitutes/Outsiders GDS. With the meagre amount of allowance, they are unable to meet both ends. They are entitled to benefits as granted to the applicants in O.A.No.811 of 1988 and in the case of Suguna & others. Therefore, they made representations to the competent authority to absorb them as GDS, considering their long years of service, In the years 1987 and 1988, some of the Outsiders/Substitutes approached this Tribunal for absorption as GDS in O.A.No.811 of 1988 and batch cases. On considering the larger interest and also the fact that they belonged to the poorer section of the community, this Tribunal directed the Respondents therein to absorb them as GDS, after framing a suitable Scheme, in this regard. The Department complied with the said order and framed a Scheme, dated 23.12.1993, and, thereby absorbed them all. The Respondent Postal Department is continuously engaging Outsider/Substitute GDS either by themselves or through permanent incumbent of GDS. The Outsiders appointed/nominated by GDS should be approved by the competent authority. Therefore, they are deemed to be appointed by the Department. Without these Outsiders/Substitutes, the Postal Department could not effectively function and cater to the needs of the public. The GDS Substitutes work as such, till the satisfaction of the Department, without any service benefits, such as, absorption, etc, From 2004-2005 onwards, the Substitutes were denied absorption and, hence, they filed OAs before this Tribunal in the matter of A.Suguna & others. All these O.As were allowed by this Tribunal. The Department filed WPs and the same were dismissed by the Hon'ble High Court, Madras (in the case of Suguna and others), Hence, the Department filed Special Leave to Appeal (Civil) No(s).21825/2006 and it was also dismissed by an order, dated 19.02.2015, confirming the order of this Tribunal and, thereby, all the Applicants therein were absorbed very recenily. In the case af Suguna and others, they had completed 240 days or above. But, the Applicants have rendered long years of service and, therefore, they are eligible for absorption. Since the services of Outsiders/Substitutes are very much required in the Postal Department, on considering their long years of service, the Department has to frame a Scheme to absarb them as directed by the Hon'ble Supreme Court of India in the case of the Union Oat a ee ee iy hearth ok: sitititius, are oe ees Ey: 2 ee a Wee 7 OA No.310/00144/2021 af i , ;
of India -Vs- Debika Guha and others. Hence, the Applicants are entitled fo absorption as GDS as in the case of Suguna and others.
3.1 The applicants in OA 27/2017 were engaged by the respondents as Mazdoor/Casual Labourers from the pear 2006 onwards in the leave ; vacancies, The applicants I to 3 were working as Mazdoor till 23.12.2016 and the applicants 4 & 3 were disengaged from 20/3. All the applicants made representation to the respondents on 21.04.2015 for absorption as GDS and when there was no response, they filed OA 787/2015 and this Tribunal, vide order, dated 19.09.2016, disposed of the said OA, by directing the respondents to consider and dispose of the representations. The respondents, vide order, dated 14.12.2016, rejected the claim ofthe applicants, 3.2 The applicant in OA 303/2017 was initially engaged in the year 1988 by the Postal Department and he was engaged on provisional basis as GDS in the pear 1990 and as an Outsider, wef 02.06.2002, and he has put in 26 years of service in the Postal Department. He made a representation on 23.10.2015 for absorption in the department and, when there was no response, he filed OA 5321/2016 and this Tribunal, vide order dated 30.03.2016 disposed of the said OA with a direction to the respondents to consider and dispose of his representation. The respondents, vide order, dated 07.12.2016, rejected the claim of the applicant.
3.3 The applicant in OA 642/2017 was initially appointed as Night Watchman in the respondent department, wef 22.10.1985, and was working as such, He has also been engaged as Postman and in Group D as leave substitute. Since most of his seniors were granted temporary status in Group D post and, thereajter, appointed in Group D on regular basis, the applicant made several representations to absorb him on regular basis, but the same was rejected.
3.4 The applicant in OA 1079/2017 was engaged by the respondents as GDS Messenger in the year 1998 on stop gap arrangement. By order, dated 03.12.2002, he was posted on provisional basis to wark as GDS MC and he was working as an Outsider GDS, sill 11.04.2017. He has completed 18 years of service in the department. Since he made a representation, dated 10.03.2017, he was disengaged from service wef 12.04.2017, 3.5 The applicant in OA 1080/2017 was engaged by the respondents as an Outsider/Mazdoor/Casual Labourer on 17.01.2001 to work in the leave vacancy of MTS/Group D and he was working as such. He made a representation on 23.06.2016 for absorption, but the same was rejected by the respondents, vide order, dated 25.07.2016.
3.6 The applicant in OA 1230/2017 & OA 350/2018 worked as Telegram Carrier against leave vacaney since 1998 and also as GDS Mail oe Deliverer-II for more than 13 years. He filed OA 923/2012 for inclusion Be of his name in the Dovetailed list, but the same was dismissed, vide order, dated 18.03.2015. When a similarly placed person, Shri PSelvaraj, was given regular appointment, the applicant made a representation, dated 8 OA No.310/00144/2021 04.72.2013, to extend the same benefit to him, When there was no response, he filed OA 507/2016 seeking regular appointment, as was given to a similarly placed person, Shri PSelvaraj, and the said OA was disposed of on 28.03.2016 directing the respondents to consider the case of the applicant. But the respondents, vide order, dated 30.09.2016, refected his case. Thereafter, he filed OA 1230/2017 seeking regular appointment. The grievance of the applicant is that when OA 923/2012 was pending, the respondents stated that his request for engaging him as GDS could not be considered since the said OA was pending and now they are stating that because of pendency of OA 1230/2017, his request could not be considered and, thus, the respondents are taking protection against pending OAs to deny the post of GDS to the applicant.
3.7 All the applicants in OA 668 & 669/2019 were working in the Postal Department for many years as Substitutes/Outsiders/Casual Labourers and they are aggrieved by the respondent's Order No, 17-39/4/2012-GDS, dated 14.01.2015, in so far as the condition of the cut off date of 01.09.1993, prescribed for absorption as GDS, is concerned and their further prayer is to absorb them as GDS by framing a Scheme as was done on earlier occasions, as per the judgment of this Tribunal in OA S1HI/L988.
3.8 The applicant in OA 857/2019, an ex-serviceman, was engaged as GDS Outsider in the Postal Department for the past 14 years. He made a representation on 07.03.2019 for his absorption, but the same was rejected by the respondents, vide order, dated 09.04.2019.
3.9 The applicant in OA 1075/2019 was engaged as GDS Outsider in the year 1992 and was working in the Postal Department till the date of filing of the OA. He has put in 26 years of service as GDS Outsider. When he requested for absorption, the respondents, vide order, dated 06/06.02.2017, rejected his claim. Aggrieved. he filed OA 337/2018 and the same was disposed of by this Tribunal, vide order, dated 09.07.2018, directing the respondents to dispose of the representation of the applicant, The applicant made a representation, dated 15.10.2018, but the saine was rejected by the respondents, vide order, dated 30.01.2019.
3.10 The applicant in OA 1207/2019 was working as GDS Outsider from the year 2003 in the respondent department. Finally, he was working as GDS Packer from October, 2017, to August, 2018 He made representation, dated 02.11.2018, and when there was no response, he filed OA 762/2019, wherein this Tribunal, vide order, dated 20.06.2019, directed the respondents to consider and dispose of the representation of the applicant. The respondents, vide order, dated 31.07.2019, rejected the claim of the applicant.
4, After notice, the respondents have entered appearance through their counsel and filed their counter and refuted all the allegations made by the applicants in the OAs and opposed the relief claimed by the applicants. The respondents have submitted that the applicants have been engaged as Substitutes by the ED Agents. Though their appointment as Substitutes against the vacancy has been approved by the competent authority, they 9 OA No.3 10/00144/202 | do not have any legal right to claim the regularization/absorption or appointment as GDS and the issue in this matter has already been settled by the Hon, Apex Court in a catena of cases. Even for persons who have been appointed on contractual basis, after following the due process of law and worked for years together, the Hon, Supreme Court has denied the benefit of regularization. The respondents further submit that the applicants in the OA have not given the details as to since when they have been working in the organisation as Substitutes and in which Post Office they are working and, in the absence of such details, their OAs cannot be entertained. Hence, they prayed for dismissal of the OAs.
5. Learned Counsel for the applicants has filed a rejainder and reiterated the pleadings and grounds raised in the OA and supported their claim with various judgments.
6. The respondents have also filed a reply to the rejoinder, reiterating the stand taken in the reply, and they also supported their claim with various Judgments.
7, Learned Counsel for the applicants, by way of a comprehensive typed set, relied upon the following orders:-
(i) Order, dated 28.04.2000, of the Hon. Supreme Court in SLP Civil Appeal No.3080 of 2000 (Debika Guha's case) (ii}Order, dated 24.11.2005, of the High Court, Madras, in the matter of Suguna and others
(iii) Order, dated 19.02.2015, in SLP in the case of Suguna and others
(iv) Order, dated 23.01.2006, in WHPNo.27274 of 2004 (-Gurusamy)
(v) Order, dated 30.04.2009, in WPNo.28040 of 2005 (Shri.Lovely C. Krishna)
(vi) Order, dated 09.02.2010, of Ernakulam Bench of CAT, in O.A.No. 744 af 2009
(vii) Orden dated 06.08.2018, of CAT, Chennai, in O.A.No.1208 of 2013 & batch cases (G.Irudhayaraja and others)
(viii) Order, dated 03.08.2010, in M.L. Kesari's case
(ix) Order, dated 14.03.2011, in WP No. 19634 of 2010
(x) Order, dated 19.07.2011, in WP No.16733 of 2009 and batch case
(xi) Order, dated 22.01.2019, in Civil Appeal No.898-900 of 2019
(xii) Order, dated 09.03.2021, in WP (C) No 1162/2018 and batch cases (HC of Tiripura)
(viii) Order, dated 27.04.2023 in WP No.13611 of 2013 and batch cases(MHAC) 10 OA No.310/00144/2021
8. The respondents also, by way of case law compilation, relied upon the following judgments:
(Order, dated 23.11.2016, of the Central Administrative Tribunal, Chennai, in OA No.1792 & 1830/2013, in the matter of E. Palani versus UOL rep. by CPMG, TN Cirele, Chennai- 2 and another.
(iOrder, dated 12.01.2017, of the Central Administrative Tribunal, Chennai, in OA No. 1734/2015, in the matter of Valarmathi and 24 others versus UOI, rep. by Dept. of Posts, New Delhi and 2 others.
(iii)Order, dated 08.02.2018, of the Central Administrative Tribunal, Bangalore Bench, in OA No.761/2015, in the matter of T-Hari Prasad versus Department of Posts.
(ivJOrder, dated 27.11.2020, of the Central Administrative Tribunal, Bangalore Bench, in OA No. 318/2019, in the matter of Basavaraj versus Uo! and 3 others.
(Order, dated 04.08.2021, of the Central Administrative Tribunal, Bangalore Bench, in OA No.32/2020, in the matter of B.M.Pradeep Kumar versus Department af Posts.
(viJOrder, dated 07.10.2021, of the Hon. Supreme Court in Civil Appeal No.5689-5690 of 2021, in the matter of UOT versuss Imo Devi and another.
(vit) Order, dated 08.10.2021, of the High Court, Bombay in WP No. 1338/2015, in the matter of VOL, through the Secretary, Department of Industrial Policy and Promotion and another versus SmiLalitha V Mertia.
9, Learned Counsel for the applicants relied upon the Leave Rules of GDS Para 2: Granting of leave to ED agents and appointment of Substitutes. The relevant paras are extracted hereunder:
"() Granting of leave to ED Agents and appointment of substitutes. A reference is invited to Rule 5 of the ED Agents (Conduct and Service) Rules, 1964, according to which the employees shail be entitled to such leave as may be determined from time to time. In accordance with this provision, Government of India have decided that leave for ED Agents should be regularised as below-
(1) The expression "leave" as applied to ED Agents means "period during which with the approval of the Appointing Authority, an ED Agent is permitted not to attend personally to the duties assigned to him, provided that in cases where a Superintendent of Post Offices is the Appointing Authority, such approval may be accorded on his behalf, by the concerned Inspector of Post Offices for a period not exceeding 60 days".
An Inspector of Post Offices will be competent ta sanction leave for a period not exceeding 60 days in cases where the Appointing Authority is the Superintendent.
{1 OA No.310/00144/2021 (2) During leave, every ED Agent should arrange for his work being carried on by a substitute who should be a person approved by the authority competent to sanction leave to him. Such approval should be obtained in writing.
(3) The allowance normally payable to an ED Agent shall, during leave, be paid to the approved substitute provided by him.
(4) No ED Agent should be permitted leave of absence for more than 90 days at a stretch which may be extended up to 180 days in exceptional circumstances by the Divisional Superintendent of Post Offices. The maximum period of leave which may be sanctioned to an ED Agent in a single stretch shall not exceed 180 days. Leave of absence in excess of 180 days may be granted by Heads of Circles* only in cases where the necessity for leave arises due to ED Agent officiating in a departmental post. The Heads of Circles have been delegated powers to sanction leave to EDAs beyond 180 days on account of genuine illness (effective 12-9- 1988).
(3) ifan ED Agent remains on leave for more than 180 days at a stretch, he will be liable to be proceeded against under Rule 8 of EDAs (Servic and Conduct) Rules, 1964. :
(6) Leave shall not ordinarily be availed by an ED Agent at frequent intervals. If an ED Agent is found to have taken leave at frequent intervals for a total period of 180 days or more in a period of one year, he shall cease to be an ED Agent.
2. Application form is to be obtained in quadruplicate from the ED Agent proceeding on leave and after the sanctioning authority has passed the orders on the application, one copy should be handed over to the ED Agent and another to the substitute, the third copy being retained as the office copy for the file of the sanctioning authority. A copy should be given fo the concerned Drawing Officer (Head Postinaster} for drawing the allowances to the substitute provided by the ED Agent."
Accordingly, whenever the ED agent is applying for leave, he has to submit his application form in quadruplicate and, after the sanctioning authority has passed the orders on the application, one copy should be handed over the ED agent and another to the Substitute, the third copy being retained as the office copy for the file of the sanctioning authority. A copy should be given to the concerned Drawing Officer (Head Postmaster) for drawing the allowances to the Substitute provided by the ED agent.
91 Learned counsel for the applicant further argues that whenever the ED agent opts for leave, he has to provide a Substitute and, after verification, the competent authority has to approve the Substitute's appointment in place of the ED agent for the said leave period. As mentioned in the GDS (Conduct & Employment) Rules, "Rule 3: Approval of the Substitutes in the place of ED agents 12 OA No.310/00144/202 1 proceeding on leave:
«fhe choice of the Substitute is left to the ED agent himself, In most cases, this arrangement appears to have worked satisfactorily. There are, however, a few cases, where the substitutes appointed, later claim regular appointment as ED agents and are not prepared to quit when required."
it is provided in the latest instructions that the substitutes should be approved by the appointing authorities. It is not the intention that there should be any elaborate procedure to be followed for according such approval. in cases where leave is not got sanctioned in advance, we may not even insist upon prior approval of the substitute but the Department should not be precluded from making such inquiries into the antecedents of the substitutes as considered necessary and to ask an ED Agent to provide another substitute, if it is found that the one actually proposed by the ED Agent is not acceptable.
'it will be a good working arrangement, if substitutes nominated by the ED Agent are approved in advance by the competent authority so that, there may be no difficulty in granting leave of absence at a short notice in cases of illness or any unforeseen circumstances affecting the ED Agent."
9.2 Following the DOPT Circular, dated 07.06.1988, all the Substitutes have been granted one paid weekly off after six days of continuous work.
On Court's intervention, the Department of Posts has framed this Scheme on 17.05.1989 to regularise the services of the Part-time and Full-time Casual Labourers. The relevant portion of the same is extracted hereunder:-
i, Part-time and Full-time Casual Labourers. It is hereby clarified that all the daily wagers working in Post Offices or in RMS Offices or in Administrative Offices or PSDS/MMS under different designations (mazdoor, casual labourer contingent paid staff. daily wager daily-rated mmazdoor, outsider) are to be treated as casual labourers. Those casual labourers who are engaged for a period of not less than 8 hours a day Should be described as full time casual labourers. Those casnal labourers who are engaged for a period of less than 8 hours a day should be described as part-time casual labourers. All other designations should be discontinued.
Substitutes engaged against absentees should not be designated casual labourer. For purposes of recruitment to Group 'D' posts, substitutes should be considered only when casual labourers are not available. That is, substitute will rank last in priority, but will be above outsiders. In other words, the following priority should be observed:-
(i) NTC Group 'D' officials.
(ii) EDAs of the same Division.
(iii) Casual labourers (full time or part-time. For purpose of computation of eligible service, half af the service rendered as part-time casual labourer should be teken into account. That is, if a part-time casual 13 OA No.310/00144/2021 labourer has served for 480 days in a period of 2 years, he will be treated, for purposes of recruitment, to have completed one year of service as fuil time casual labourer),
(iv) EDAs of other divisions in the same Region.
(v) Substitutes (not working in Metropolitan cities)
(vi) Direct recruits through Employment Exchange.
9.3 Learned counsel for the applicant, in support of his contention, relied upon the order, dated 20.04.1990, passed by this Tribunal in OA 811/1988 & bateh, in the matter of National Postal Temporary Employees' Union & others Vs. UOI & others, wherein, for the first time, the issue in respect of Outsiders like the applicants has been considered at length and, accordingly, the respondents have been directed to frame the Scheme. Thereby, the respondents, vide OM, dated 08.04.1991, framed the Scheme for regularisation of services of Casual Labourers in Group D past, with relaxation in employment procedure as well as upper age limit. The departinent also framed a Scheme on 28.12.1993 in respect of the ED Outsiders, the persons who are working as Substitutes engaged by the ED agents during their leave period. Accordingly, as a one time measure, the Scheme was framed for their absorption and therein in Para 5 it is observed as under:
'Ut should be ensured hereafter that substitutes are not engaged in ED vacancies for long periods indefinitely in case af prolonged leave vacancies, a provisional appointment should be made through the Employment Exchange after observing the due process."
9.4 Learned Counsel for the applicant further relied upon the judgment, dated 28.04.2000, of the Hon.Supreme Court in C.A.No.3080 of 2000 in the matter af UOI & Ors. Vs, Debika Guha & Others wherein the Hon. Supreme Court has observed, "if it is shown that they have worked for long periods continuously, it will be for the department to consider the same whether that was a proper case of absorption or not and pass appropriate orders."
9.5 Learned Counsel for the applicants further submits that there have been many rounds of litigation with regard to the present issue. The ED Substitutes approached various Courts, including this Tribunal, and their cases have been, time and again, considered for absorption and regularisation and the department has considered their cases. Learned counsel for the applicant also relied upon the order, dated 23.01.2006, of the Hon. High Court of Madras, in WP No.27274 of 2004, wherein the Hon. High Court, following the judgment in the case of UO! Vs. A.Suguna & anv, dismissed the writ petition filed by the department, confirming the order of the Tribunal, directing the respondent department to consider the case of the applicant therein for inclusion of his name in the dovetailed list for appointment to the ED post in accordance with seniority. Learned counsel for the applicants also relied upon the order, dated 09.02.2010, of the Ernakulam bench of this Tribunal, in OA 14 OA No.310/001 44/2071 7744/2009, wherein the Tribunal directed the respondent department to consider the applicant for appointment to the post of GDS Mail Packer. Ayyanthole giving her the benefit contained in the letter, dated 06.06.1988, af theDG Posts. Learned counsel for the applicant further relied upon the policy decision taken by the respondents on 30.06.2014, in the matter of Casual Labourers working in the Department, in compliance with the Hon, Supreme Court Judgments in Uma Devi case, whereby if was held that, "Regularisation of all the Casual Labourers, who have been irregularly appointed, but are duly qualified persons in terms of statutory recruitment rules for the post and was engaged against a sanctioned post, shall be done if they have worked for 10 years or more but not under the cover of orders of the courts or tribunals as on the date of Hon, Apex Court's ibid judgment, ie., 10.04.2006. By anather letter dated 14.01.2015, it has been instructed to the concerned authorities to give preference to the Casual Labourers in the matter of engagement as GDS, by deleting the condition of sponsorship from employment exchange and to allow preference in GDS posts to casual labourers (full lime and part time), engaged on or before 01.09.1993, subject to Fulfilment of certain conditions laid down in the said letter The department has also taken a call in respect of the renuneration payable to full time Casual Labourers, vide OMs, dated 22.01.2015 & 17.06.2016, while filling up the vacancies of GDS and considering the earlier circulars, giving preference to the Casual Labourers. The department, vide letter, dated 02.01.2017, issued a direction to all the Chief Postmaster Generals to identify the remaining GDS vacancies for notification through online software and fill up the same with eligible Casual Labourers.
9.6 Learned counsel for the applicant further relied upon the OM. dated 31.03.2017, wherein it is observed, "..minimum pay for calculation of pay of casual labourers (without temporary status) may be considered as the
- minimum pay of Level of the Pay Matrix as per the recommendations of 7" Pay Commission, ie, Rs.18000/-. Learned counsel for the applicant also relied upon the OM, dated 30.10.2019, issued by the respondent department in implementation of recommendations of Kamlesh Chandra Committee on giving preference to Casual Labourers in selection to GDS posis. With various data, the department has started the process to appoint the GDS by way of online engagement process. Learned counsel:
Jor the applicant also relied upon other judgments as mentioned in Para 7 above.
9.7 Learned counsel for the applicant reiterated that, though direction has been given in the 1993 Scheme to the respondents not to engage Substitutes for long period or indefinite period, they have engaged the Substitutes and they have been serving for long period and, therefore, if a direction is given to the department to consider their request for absorption as GDS, it will be helpful for the survival of the applicants who have been working with the department.
9.8 Learned counsel for the applicants submitted that some of the applicants attained the age of superannuation, as per the GDS Rules, and, therefore, they are entitled to the ex-gratia amount and other 15 OA No.310/00144/2021 benefits, if at all the respondents are considering their claim for absorption. Some of the employees are still working, and this Tribunal granted interim relief, vide order, dated 25.09.2019, and directed the respondents not to disengage them. The respondents may be directed not io disengage them till the disposal of their request, in accordance with the departinent's policies/Scheme/Rules in the matter of absorption of such Substitutes as GDS, following various observations of this Tribunal as well as Hon. High Court and Supreme Court as referred to above.
10. On the other hand, the learned counsel for the respondents vehemently opposed the relief on the ground that all the applicants are fully aware of the fact that they have been engaged as Substitutes and they have no legal vested right to claim such regular appointment as well as absorption. Learned counsel for the respondents relied upon the rules reiterated in the applicants' submissions as well as he relied upon the case lay in his support. Learned counsel for the respondents strongly opposed the relief prayed by the applicants, on the ground that, even recently, the Hon. Supreme Court, vide order, dated 07.10.2021, in C.A.No.5689-5690 of 2021, in the matter of Imo Devi and another, held as under:-
8.4 The observations made in paragraph 9 are on surmises and conjunctures. Even the observations made that they have worked continuously and for the whole day are also without any basis and for which there is no supporting evidence. In any vase, the fact remains that the respondents served as part-time employees and were contingent paid staff As observed above, there are no sanctioned posts in the Post Office in which the respondents were working, therefore, the directions issued by the High Court in the impugned judgment and order are not permissible in the judicial review under Article 226 of the 'Constitution. The High Court cannot, in exercise of the power under Article 226, issue a Mandamus to direct the Department to sanction and create the posts. The High Court, in exercise of the powers under Article 226 of the Constitution, also cannot direct the Government and/or the Department to formulate a particular regularization policy. Framing of any scheme is no function of the Court and is the sole prerogative of the Government. Even the creation andfor sanction of the posts is alsa the sole prerogative of the Government and the High Court, in exercise of the power under Article 226 of the Constitution, cannot issue Mandamus and/or direct to create and sanction the posts.
8.5 Even the regularization policy to regularize the services of the employees working on temporary status and/or casual labourers is a policy decision and in judicial review the Court cannot issue Mandamus and/or issue mandatory directions to do so. In the case af RS. Bhonde and Ors. fsupra), it is observed and held by this Court that the status of permanency cannot be granted when there is no post. It is further observed that mere continuance every year of seasonal work during the 16 OA No.3 10/00144/202 1 period when work was available does not constitute a permanent status unless there exists a post and regularization is done.
8.6 In the case of Daya Lal & Ors. (supra) in paragraph 12, if is observed and held as under:-
"12, We may at the outset refer to the following well settled principles relating to regularisation and parity in pay, relevant in the context of these appeals:
(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme.
While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be reguiarised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.
(ii) Mere continuation of service by a temporary or ad hoe or daily-vage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into serviee, as such service would be "litigious emplayment". Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.
(iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date}, it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.
fiv) Part-time employees are not entitled to seek 17 ~ OANo.310/00144/2021 regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.
(v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute. [See State of Karnataka v. Umadevi (3) [(2006) 4 SCC lL]. M. Raja v CEERI Educational Society [(2006) 12 SCC 636], S.C. Chandra vy. State of Jharkhand [(2007) 8 SCC 279], Kurukshetra Central Coop. Bank Lid. vy. Mehar Chand [(2007) 15 SCC 680] and Official Liquidator v. Dayanand [(2008) 10 SCC LJ Therefore, learned counsel for the respondents submitted that the applicants have not even submitted their details as to when they were engaged and in which post office. Even for the department, if at all they want to consider their cases, it is not possible to do so.
ll. Heard both sides and perused the records.
12. It is to be noted that, in the year 1993, the department themselves have framed the Scheme to regularise the Casual Labourers and ED Outsiders. At Para 5, it is made clear that, "It should be ensured hereafter that 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 position has been reiterated again on 21.10.2002. Therein the department has issued guidelines for regulating the Substitute/provisional arrangements made in place of regular GDS, following the orders passed by the CAT, Bangalore Bench, as well as the orders of the Hon. Supreme Court in the matter of Debika Guha Vs. Union of india, wherein the Hon. Supreme Court has not recognised the right of the substitutes for regularisation. Though the department has issued guidelines for regulating the Substitutes/provisional arrangements, made in place of regular GDS, with directions that the instructions given in the said communication, dated 21.10.2002, may kindly be brought to the notice of all appointing authorities of GDSs for strict compliance and any violation of the said instructions will be viewed seriously and action would be required to be taken against officials who allow substitute/provisional arrangements to continue beyond the prescribed limits, in contravention of the above instructions. In the present cases, the applicants have been permitted to work continuous for a long period of 18 OA No.310/00144/2021 time. Even, thereafier, the respondent department is taking the services of the substitutes provided by the GDS and approval has been accorded fo such appointment by the competent authority itself.
13. Communication No.17-115/2001 -- GDS, dated 21.10.2002, is extracted hereunder:
No.17-115/2001 - GDS Government of India Ministry of Conmununications & IT Department of Posts Dak Bhawan Sausad Marg New Dethi-- 110 001 Dated : Octaber 21, 2002 To Ail Principle / Chief Postmasters General All Pastnasters General Director, Postal Staff College, Ghaziabad Directors, All Postal Training Centres All Directors, Dy. Directors af Accounts (Postal) Addl. Director General, APS, Army Head Quarters, R.K.Puram, New Dethi Sub:- Guidelines for regulating substitute / provisional arrangements niade in place of regular Gramin Dak Sevaks.
Sir, References are received from Circles for regularizing the employment of substitutes provided by regular GDSs during their periods of leave/absence on the ground that they have been functioning in that capacity "for a longer period". A number of cases also stand filed in the Tribunals and Courts on this issue. Apparently instructions issued from time to time are not followed rationally by competent authorities in allowing substitutes to continue indefinitely or for long periods.
2. In this context, I aim directed to draw your attention to the DG (Posts)'s instructions given below Rule 5 of the P&T ED agents (Conduct & Services) Rules, 1964 corresponding to Rule 7 of the Gramin Dak Sevaks (Conduct & Employment) Rules, 2001 which, inter alia, stipulate the following.
"During leave, every GDS should arrange for his work being carried on by a substitute who should be a person approved by the authority competent to sanction leave to him. Such approval should be obtained in writing" and that:
"It is necessary for the appointing authority to ensure that such a substitute is not allowed to work indefinitely, If the absence from duty of the regular GDS likely to last indefinitely, the appointing authority should take immediate steps to make appointment and the person so appointed need not necessarily be the substitute,
3. Instructions issued vide, this office letter No. 18-37/92-ED & TRG, dated 25/11 enjoined all Divisional Heads to ensure that long leave beyond 180 days is not granted to GDS as a matter of routine to avoid substitutes continuing in place-of regular incumbents for long periods.19 OA No.3 10/00144/2021
4, Subsequently, vide letter No. [9-6/2000-ED & TRG, dated 29-2- 2000, the decision of the large bench of CAT Bangalore on the issue of whether weightage should be given to persons whe fave rendered past employment on provisional basis or in the capacity of substitute or GDS, was circulated. Recently, vide letter dated 19.02.2002 the judgment of the larger bench of CAT Bangalore mentioned above, has alse been circulated. The said judgment clearly reiterates the position that the substitutes have not legal right as far as regularization in the Department is concerned. It also takes note that the Department's Recruitment Rules for Gramin Dak Sevaks do not provide for recognization of past service that may have been rendered by them against any post.
5, In the case of Deviks Guha v/s Union of India, the Supreme Court has also not recognized the right of the substitutes for regularization. . On the other hand the Apex court has maintained that substitutes have no legal claim in the basis of having worked continuously and if there are cases where the substitutes have worked for a "longer period" it is for the Departinent to consider the same as to whether there was a proper case for absorption or not, and pass appropriate orders.
6. The matter has been examined in consultation with Ministry af Law. Since the Apex Court has hold that substitutes have not legal claim there can be no definition of the term "longer period" as absorption of substitutes per se on regular vacancies without following prescribed procedures of recruitment could lead to nepotism.
7, Thus, it has become necessary to review and reiterate the existing guidelines relating to "substitute" arrangement of GDSs. This would also involve clarification of the status of the substitute, who is provided at the risk and responsibility of the regular incumbent, vis-a-vis provisional appointees, who are appointed by the Department to meet ant interint need.
8 As per extent orders, a regular GDS is required to provide a substitute at his own risk and responsibility but subject to approved by the appointing authority. Hence it is the duty of the appointing authority to ensure that any ineligible person is not approved as a substitute and any "substitute" arrangement is not allowed to continue for long periods. Accordingly, the following guidelines may inevitably 'be kept in view while dealing with matters relating to "substitute arrangements" or their continnance".
(1) Before resorting of substitute arrangement the following options may be explored:
(a) In case of short-term arrangements, as far as possible, work will be managed, by combining duties and "substitutes" will not be provided in leave arrangements, In single handed BOs, the work shall be managed by giving combined duty to GDS Mail Deliver/Mail Carrier (Gramin Dak Vitaraka/Vahak) of the neighbouring BO/SO in whose beat the BO falls.
(b) Even in long term arrangemenis, the combination of duties as in a) above will restricted to; substitutes will be allowed only if work load of the BO as well as its financial position justifies which engagement or 20 OA No.310/00144/202 | filling of the post on regular basis.
(c) In towns and cities, where departmental officials are also available in the same office, the possibility of managing the work by regular staff by combination of duties or by grant of OTA beyond normal working hours may be explored,
(ii) If substitute arrangement is found fo be unavoidable then it should
- be ensured that
(a) No substitute will be allowed to take over charge unless the competent leave-sanctioning/appointing authority is fully satisfied that the substitute possesses all the qualification prescribed for that appointment and has been provided under the risk and responsibility of the regular incumbent,
(b) Drawing & Disbursing authorities shall not draw allowance of a substitute unless the claim is accompanied by a certificate from the competent authority about the possession of requisite qualification by the substitutes and their approval for making continuing the arrangement,
(c) Continuation of substitute arrangemenis beyond 180 days at a stretch may only be allowed by the authority next higher to the appointing authority and only in exceptional cases where action has been initiated for regular appointment, if justified by work load and Financial norms.
(d) No substitute arrangement shall continue beyond one year. Hence reguiar/alternative arrangements must be made during the period beyond 180 days to ensure this. If for any unavoidable reasons a substituté arrangement is required to be continued beyond one year, specific approval of the Head of Circle will be necessary for reasons to be recorded by the concerned authority.
9. In the case of provisional appointments, it is clarified that sucht appointment should be resorted to only in case where the GDS is unable, quite unexpectedly, to undertake his duties due to his own action (unauthorized absence, fraud, misappropriation ete). Due to circumstances beyond his control like sudden serious Hlness/accident/death or because the department does not want him/her to continue (due to reasons of misconduct/dismissal/removal/put off duty etc.) in all other cases, action should be taken well in advance to fill the post on a regular basis. Even where the post falls vacant unexpectedly, efforts should be made to manage the work through combination of duties as spelt out in Para 8 (i) (a) & (c). Similarly even in case of long term deputation of GDS to APS, action may be taken to full up the post on regular basis and the GDS, on return from deputation may be suitably adjusted against vacancies in existence at that given tinie.
10. Where provisional appointment becomes unavoidable, action may be initiated to all the posts following all the forimalities prescribed for regular appointment, but clearly stipulating that the appointment is on a provisional basis. On no account should a provisional appointment be made without following every formality that is prescribed for regular "--
21 OA No.310/00144/202 !appointment. Since the whole process will take a period not exceeding 60-90 days, stop gap arrangement may preferably made at the local level in the interim through combination of duties or by allowing the GDS from a neighbouring office to function, or by deploying a Mail Overseer to look after the work, Under no circumstances should such local arrangement exceed 90 days, approval of the next higher authority is to be taken on a one time basis for reasons to be recorded in writing.
UU. In cases where the incumbent dies in harness there is no objection to a dependent being allowed to function on interim basis provided the dependent fulfills the qualification/relaxed qualification applicable for post fallen vacant? This may only be resorted to if arrangement by combination of duties is not feasible, However, in such case also sucht interim appointment should not exceed one year and every effort should be made to take a final view within that time frame. It also needs to be clearly stipulated that such provisional appointment does not entitle the dependent to claim for the post unless his/her case for compassionate appointment is approved by the Circle Relaxation Committee, 12, The extent provisions provide for a provisional appointee to be placed on a waiting list for being considered for a regular appointment after he/she has completed three years of continuous employment. To avoid prolongation of such provisional appointments, approval of the next higher authority should be taken in respect af all provisional appointment exceeding 180 and where the pertod exceeds one year express approval of the Head of the Region/circle, as the case may be, would be necessary. Where the regular incumbent is not reinstated, immediate action must be taken to regularize the regularly selected provisional appointee against the said post without resorting to fresh recruitment,
13. The above instructions may kindly be brought to the notice of all appointing authorities of GDSs for strict compliance, Any violation of the above instructions will be viewed seriously and action wonld be required to be taken against officials who allow substitute/provisional arrangements to continue beyond the prescribed limits in contravention of the above instruction.
14. If any previous instructions on the issues of 'substitute' and 'provisional appointment' are found contrary to these provisions, the same will stand superseded by the fatter,
15. Receipt of this letter may please be acknowledged to the undersigned.
16. Hindi version is enclosed.
14, It is not in dispute that the Department of Posts is in need of man- power to serve the department and fulfil the interests of the department to deliver the postal materials in remote areas. It is also to be noted that the Postal Department is very much in need of manpower for service in physical mode to avoid disruption of services in remote areas wherever there are no technological substitutes that. may replace the human 22 OA No.310/00144/2021 service, Therefore, we are of the considered opinion that, following the judgment passed by the Hon. Supreme Court in the matter of Debika Guha Vs. Union of India supra, the OAs can be disposed of with a direction to the applicants to submit their detailed and comprehensive representations, giving the details of their services, such as, their date of joining in the department, place of posting and all other relevant details, within four weeks along with the copy of the judgment and with a further direction to the respondents to consider the claim of the applicants, after verifying the details provided by them, in accordance with their policy decision of 1993 & 2002, as well as following the judgements supra, though it is in favour of the respondent department, in the interest of public.
15. Accordingly, the OAs are disposed of with a direction to the applicants to submit their detailed and comprehensive representations, giving the details of their services, such as, their date of joining in the department, place of posting and all other relevant details to the department, within four weeks, along with a copy of this judgment, and with further direction to the respondents to consider the claim of the ' applicants after verifying the details provided by them, in accordance with their policy decision of 1993 & 2002, as well as following the judgements supra, within a period of three months from the date of receipt of such representations from the applicants. Till then, the interim relief granted by this Tribunal will continue. Unless and until the representations of the applicants, who are still working with the Respondents are decided, they may not be disengaged. No order as to costs."
b. We cannot take a different view from that of a Bench of this 'Tribunal, to which one of us was a party (Varun Sindhu Kul Kaumudi), as highlighted above. In view of the above, we deem it fit and proper to dispose of the present OA as under:-
"The applicant is directed to submit his detailed and comprehensive representation, giving the details of his services, such as, his date of joining in the department, place of posting and all other relevant details to the department, within four weeks, along with a copy of this judgment, _and with further direction to the respondents to consider the claim of the applicant after verifying the details provided by him, in accordance with ' their policy decisions of 1993 & 2002, as well as following the judgments 23 OA No.310/00144/2021 cited supra, within a period of three months from the date of receipt of such representation from the applicant. Unless and until the representation of the applicant, is decided, he may not be disengaged.
7. The OA is disposed of as above. No order as to costs. Pending MA(s), if any, also stands disposed.