Karnataka High Court
The Superintendent Of Post Offices vs Sri Sandeep H L on 18 November, 2013
Bench: Mohan.M.Shantanagoudar, K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
TH
DATED THIS THE 18 DAY OF NOVEMBER, 2013
PRESENT
THE HON'BLE MR.JUSTICE MOHAN .M. SHANTANAGOUDAR
AND
THE HON'BLE MR.JUSTICE K.N.PHANEENDRA
WRIT PETITION NO.24557/2013 (S-CAT)
BETWEEN :
1. The Superintendent of Post Offices,
Chikkamagalur Division
Chikkamagalur-577 111
2. The Inspector of Post
Mudigere Sub-Division
Chikkamagalur Division
Chikkamagalur-577 111
3. The Branch Post Master
Hangaravalli BO., A/w.Aldur
Chikkamagalur-577 111
4. The Post Master General
S.K.Region
GPO Complex, Cubbon Road
Bangalore-560 001
5. The Chief Post Master General
Postal, Karnataka Circle
Palace Road
Bangalore-560 001
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6. The Union of India
Rep.by its Secretary
Ministry of Communication and
InformatioTechnology
Dak Bhavan, Parliament Street
New Delhi-110 001 .. PETITIONERS
(By Sri M.Unni Krishnan, Adv.,)
AND :
Sandeep H.L.
S/o.C.G.Laxmanachari
Aged about 27 years
Hangaravalli BO. A/w.Aldur
Chikkamagalur Division-577 111 .. RESPONDENT
(By Sri Basavaraj Veerabhadra, Adv.,)
This writ petition is filed under Articles 226 and 227
of the Constitution of India, praying to quash Annexure-A,
i.e., the order passed by the Hon'ble Central
Administrative Tribunal, Bangalore in OA.499/2011, dated
13.2.2013 and consequently allow the above petition filed
by the petitioners against the respondent, etc.
This writ petition coming on for preliminary hearing,
this day, MOHAN .M. SHANTANAGOUDAR, J., made the
following:-
ORDER
The order of the Central Administrative Tribunal, dated 13.2.2013 passed in O.A.No.499/2011 is called in question in this writ petition. -3-
2. The respondent was engaged on stop-gap arrangement as Grameen Dak Sevak Mail Deliverer(GDSMD) at Aldur Branch Office, Chickmagalur District against the vacant post. Such stop-gap arrangement was initially made for a period of three months. It continued for different spells from 22.9.2008 to 2.11.2011, since services of the regular GDSMD Mr.H.C.Laxmana were terminated on medical grounds from 17.6.2008. Since the post of regular GDSMD could not be filled up immediately, services of the respondent were availed by the petitioners on stop-gap basis.
3. The records reveal that the stop-gap arrangement was made by the petitioners for a period of three months every time and he was not entrusted with the work for few days before he being appointed once again on stop-gap arrangement. The respondent by his declaration dated 17.8.2009 agreed to the conditions before he being appointed as GDSMD on -4- stop-gap basis. In his declaration, he has specified that he was ready to work on stop-gap arrangement without any condition by understanding that it was purely temporary post. As aforementioned, services of the respondent were availed by the petitioners up to 2.11.2011. From that day onwards, services of the respondent were not availed by the petitioners.
Thus, the respondent approached the Central Administrative Tribunal by filing O.A.No.499/2011 praying for continuing his employment with all consequential benefits such as service and monetary benefits. He also sought for quashing the letter dated 3.11.2011 by which the respondent herein was informed that his services are no more required and that he is relieved from duties. The Tribunal by the impugned order allowed the application filed by the respondent holding that the respondent's appointment is also a provisional appointment and since he had worked for more than three years as if a permanent -5- employee, his name shall be placed in the waiting list with those who are required to be appointed subsequently on regular basis.
4. Learned advocates on record have taken us through the material on record, including the order of the Central Administrative Tribunal.
Undisputedly, the respondent is appointed only on stop-gap arrangement. His services were availed by the petitioners for the following periods:-
From To
22.09.2008 02.01.2009
09.01.2009 02.05.2009
04.05.2009 14.08.2009
17.08.2009 30.11.2009
04.12.2009 06.03.2010
09.03.2010 19.06.2010
23.06.2010 25.09.2010
28.09.2010 24.12.2010
28.12.2010 25.03.2011
28.03.2011 23.06.2011
27.06.2011 21.09.2011
01.01.2011 02.11.2011
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5. It is also not in dispute that the respondent performed his functions on stop-gap basis as GDSMD against the vacant post. The said post was held by Sri H.C.Laxmana, who was terminated on medical grounds from 17.6.2008. According to the petitioners, it was not possible to make appointment either provisionally or regularly against the vacant post and hence, services of the respondent were availed on stop-gap basis for a period of three months at one stretch and continued so till 2.11.2011 with breaks after three months regularly.
6. Learned advocate appearing for the respondent is justified in submitting that the petitioners have created artificial breaks in the stop- gap services of the respondent.
We also find from the aforementioned dates that the services of the respondent were utilized by the petitioners for three months on a stop-gap basis and -7- thereafter petitioners gave gap of 3 to 8 days before respondent is once again taken on duty on stop-gap arrangement. Thus, there appear to be artificial breaks in the stop-gap services of the respondent, which are created by the petitioners. But that itself may not be sufficient for the respondent to claim benefit of regularization. The appointments made provisionally or regularly or on stop-gap basis, are governed by the Department of Posts, Gramin Dak Sevaks (Conduct and Engagement) rules, 2011 ('Rules' for short). The relevant Rules relating to provisional appointment on stop-gap arrangement read thus:-
"(6) Guidelines for regulating substitute/provisional arrangements made in place of regular Gramin Dak Sevaks-
xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx -8-
10. Where provisional appointment becomes unavoidable, action may be initiated to fill the post following all the formalities 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 appointment. Since the whole process will take a period not exceeding 60-90 days, stop-gap arrangement may preferably be 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. If, due to some unavoidable reasons, the local arrangement exceed 90 days. If, due to some unavoidable reasons, the local arrangement needs to be continued beyond 90 days, approval of the next higher authority is to be taken on a one -9- time basis for reasons to be recorded in writing.
xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx (17) Provisional appointment of ED Agents-It has come to the notice of this office that provisional appointments made to ED posts are being allowed to continue for indefinite periods and when regular appointments are made, the provisionally appointed persons do not readily hand over the charge. The following instructions are issued in this regard:-
(i) As far as possible, provisional appointments should be avoided.
Provisional appointments should not be made to fill the vacancies caused by the retirement of ED Agents. In such cases, the Appointing Authority should take action well in time before the retirement of the incumbent ED Agent, to select a suitable successor.
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(ii) Wherever possible, provisional appointments should be made only for specific periods. The appointed person should be given to understand that the appointment will be terminated on expiry of the specified period and that he will have no claim for regular appointment. Where a new Post Office is opened or where a new post is created or where an ED Agent dies while in service or resigns from his post and it is not possible to make regular appointment immediately, a provisional appointment should be made for a specific period. The offer for appointment should be in the form annexed (Annexure-A).
(iii) Where an ED Agent is put off duty pending departmental or judicial proceedings against him and it is not possible to
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ascertain the period by which the departmental/judicial proceedings are likely to be finalized, a provisional appointment may be made, in the form annexed (Annexure-B).
It should be made clear to the
provisionally appointed person
that if ever it is decided to
reinstate the previous
incumbent, the provisional
appointment will be terminated and that he shall have no claim to any appointment.
Even in cases where an appointment is made to fill the vacancy caused by the dismissal/removal of an ED Agent and the dismissed/removed employee has not exhausted all channels of appeal, the appointment should only be provisional. The offer for appointment should be in the form annexed (Annexure-B).
2. Efforts should be made to give alternative employment to ED Agents who
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are appointed provisionally and subsequently discharged from service due to administrative reasons, if at the time of discharge they had put in not less than three years' continuous approved service. In such cases, their names should be included in the waiting list of ED Agents discharged from service, prescribed in D.G., P.&T., Letter No.43-4/77-Pen., dated 23.2.1979."
7. The method of recruitment on regular basis is also prescribed under the Rules. The minimum and maximum age limit is prescribed apart from educational qualifications for being appointed on regular basis. Interviews will be conducted to find out the suitability of the candidate for the post of GDSMD.
From the aforementioned Rules, it is amply clear that even for making provisional appointment the candidate has to undergo the process of regular appointment. The list of provisional appointees would be prepared by the petitioners for being appointed
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provisionally on subsequent dates. Such list will be prepared after following the due process laid down for the appointment on regular basis. Thus, it is clear that a candidate who is appointed on provisional basis also will have to undergo test prescribed for regular appointment. On the other hand, for availing the services of a candidate on stop-gap arrangement, the Department need not have to post the candidate to undergo process of regular appointment. Aforementioned Rules clearly reveal that on no circumstance, should provisional appointment be made without following the formality which is prescribed for regular appointment. Since whole process of such selection will take about 60 to 90 days, stop-gap arrangement may preferably made at the local level by way of interim arrangement, through combination of duties or by allowing the GDS from a neighbouring office to function. Under no circumstances, such local appointment should exceed
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90 days. Due to some unavoidable reasons, if the local appointment needs to be continued beyond 90 days, approval of the next higher authority is to be taken on one time basis for the reasons to be recorded in writing. Thus, it is clear that a stop-gap arrangement is nothing, but a local appointment for delivering mails on day-today basis till provisional or regular appointment is made. The stop-gap appointee has no right to claim regular appointment under the Rules.
In the matter on hand, the respondent was admittedly taken on duty on local appointment/stop- gap appointment. He was not appointed provisionally. He has not passed the test or has completed the formality which is prescribed for regular appointment. In this view of the matter, it is not open for the respondent to claim continued service on regular basis and consequently, the Tribunal is not justified in directing the petitioners to include the name of the
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respondent in the list of candidates who will be appointed regularly. Hence, the impugned order is liable to be quashed. Accordingly, the following order is made:-
The impugned order dated 13.2.2013 passed in O.A.No.499/2011 is quashed.
Writ petition is allowed accordingly.
Sd/-
JUDGE Sd/-
JUDGE *ck/-