Central Administrative Tribunal - Madras
K Dhanalakshmi vs D/O Post on 18 February, 2025
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CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA No. 310/00486 of 2021
DATED TUESDAY, THE 18th DAY OF FEBRUARY, TWO THOUSAND AND TWENTY FIVE
CORAM :
HON'BLE MS. VEENA KOTHAVALE, MEMBER (J)
HON'BLE MR. SISIR KUMAR RATHO, MEMBER(A)
Tmt K. Dhanalakshmi,
W/o Kanniyappan,
No. 12/15B Rayanguttai Pallam Street,
Big Kancheepuram-"Town" & "District".
(Post Master). .....Applicant
(Advocate: M/s. M. Arumugam)
Versus
1. The Union of India,
Rep. by the Superintendent of Post Offices,
Chengalpat Division,
Chengalpat-603.001;
2 The ASPOS,
Chengalpattu East Sub Division,
Chengalpattu-603 001
Chengalpat-"District";
3. The Post Master,
Chengalpat HO-603 001,"
Chengalpat-"District";
4. The Sub Post Master,
Kalpakkam SO-603 102.
Chengalpat-"District".
5. The Post Master General (PMG),
Office of Chief Post Master General,
Tamil Nadu Circle, Anna Road
Department of Posts, Mount Road,
Chennai-600 002. ....Respondents
(Advocate: M/s. M. Kishore Kumar, SPC)
CAV ON :30.01.2025
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ORDER
(Hon'ble Ms. Veena Kothavale, Member(J) The applicant has filed this Original Application seeking to set aside the order of the 1st Respondent in Memo No. B3/GDS/RRC B.O/2021 dated at Chengalpattu- 603 001 and the consequent order dated 27.01.2021 as illegal and unconstitutional and direct the respondents to reinstate her on regular basis with effect from the date of termination i.e. 27.01.2021 with all consequential benefits and back wages.
2. The facts in brief as submitted by the applicant are that she had applied for the post of GDS Branch Post Master on 15.04.2019 under UR-EWS (Un- Reserved Economic Weaker Section) category. She had the basic qualification of S.S.L.C (10th Standard) and submitted all testimonials through GDS Online Engagement Application. She had uploaded appropriate certificates including the community certificate. Her application was Registered as Registration Number CR399B61837967. The applicant was intimated by the 1 st Respondent to appear for verification of genuineness of certificates on 12.07.2019. After scrutinizing the documents including the Community Certificate, the applicant was selected for the said post and was issued appointment order on 05.08.2019. The applicant joined her duty on 19.08.2019 as GDS Branch Postmaster, RRC B.O., Kalpakkam S.O. and has been discharging her duties with utmost care and due diligence without any blemish since then. But all of a sudden, the applicant was issued the order of termination of 3 of 13 service by the 1st Respondent vide his Memo No.B3/GDS/RRC B.O/2021 dated 27/01/2021, without mentioning any reason for such termination. Since this is against the principles of natural justice and is violative of articles 14 and 21 of the Constitution, the said order is liable to be set aside.
3. The learned Counsel for the applicant argued that the applicant had worked in the department continuously for more than 240 days in a span of 12 months and thus, the nature of her employment had become permanent in terms of the provisions of the Industrial Dispute Act, 1947. Therefore, the applicant's service could not have been terminated without issuing show cause notice as per the rules of Postal Departments. The applicant is denied regular appointment as per the norms of the Department. Without issuing any notice and without following the Principles of natural justice, the applicant was terminated from service. Hence, the action of the 1 st respondent being arbitrary, unreasonable and violative of Art. 14, 16 and 21 of the Constitution, the impugned order of termination dated 27/01/2021 is liable to be set aside.
4. The respondents have filed their reply stating that the post of GDSBPM of Reactor Research Centre BO a/w Kalpakkam SO under Chengalpattu Postal Division was notified as vacant through GDS Online Recruitment 2019. The said post was earmarked for UR-EWS vacancy (Un-Reserved Category Economically 4 of 13 Weaker Section). Since the online application received from the applicant stood first for the post of GDS BPM, Reactor Research Centre BO a/w Kalpakkam SO she was issued the letter of intimation by the 1 st respondent vide letter dated 08.07.2019 instructing her to be present before him on 12.07.2019 for verification of the uploaded certificates with the originals. After verifying uploaded certificates with the original certificates produced by the applicant, the applicant was offered provisional engagement vide Memo dated 05.08.2019, subject to other requisite verifications, including character and antecedents, marks statement and community certificate. The applicant had uploaded Below Poverty Line Certificate issued to her by the Commissioner, Kanchipuram Municiplaity, instead of the requisite EWS certificate. Therefore, in the provisional engagement order, it was clearly mentioned that her engagement as GDS BPM is subject to verification of character and antecedents, SSLC mark list, community certificate (SC/ST/OBC/EWS if applicable) and computer training certificate from the respective issuing authorities and shall be in the nature of contract liable to be terminated by notifying in writing and her conduct and service shall be governed by the Department of Posts, Gramin Dak Sevaks (Conduct and Engagement) Rules, 2011. After accepting all these conditions, the applicant had joined as GDSBPM, Reactor Research Centre (RRC) BO a/w Kalpakkam SO with effect from 23.08.2019.
5. It is further stated that during the verification process, only comparison of the uploaded certificate with the original certificates will be carried out. However, 5 of 13 verification of character and antecedents, marks statement and community / EWS certificate is mandatory for regularisation of GDS who was provisionally selected/ engaged and the genuineness of those certificates will be verified with the certificate issuing authority at a later stage and accordingly, the verification of the EWS certificate of the applicant had been taken up with the Collectorate for its genuineness. It was then intimated by the Collectorate office that the said certificate is not EWS certificate and based on their oral information, the applicant had been directed by the first respondent to produce her EWS certificate. Accordingly, the applicant had submitted her EWS certificate dated 14/12/2020, wherein it is mentioned that the applicant belongs to OBC /UR category. Since the post of GDSBPM, Reactor Research Centre BO, a/w, Kalpakkam S.O. was earmarked for EWS category, she had not been asked to submit any community certificate earlier. The applicant was therefore directed to submit her OBC certificate for verification. The applicant submitted her OBC community certificate dated 14.12..2020. The first respondent verifired OBC certificate produced by the applicant through online portol and it was found to be genuine. Therefore, the applicant was terminated from engagement as per Rule 8(3) GDS (Conduct and Engagement) Rules, 2020 vide first respondent's letter dated 27.01.2021.
6. The learned counsel for the respondents argued that the applicant had suppressed the fact that she actually belonged to OBC category and had fraudulently claimed engagement against the post earmarked for EWS Category. As per Postal 6 of 13 Directorate instructions issued vide letter no. 36039/1/2019-Estt (Res) dated 31.01.2019, persons belonging to EWS category who are not covered under the scheme of reservation for SC/ST and OBC shall get 10% reservation in appointments. Since, the applicant belongs to OBC community, she is ineligible to be recruited against the post earmarked for EWS. As soon as the above fact was established, the first respondent had taken due action for the termination of the applicant. After conducting requisite enquiries and obtaining statements from her, the applicant was terminaled from engagement vide first respondent's Memo dated 27.01.2021. As per Rule 8(3) of GDS (Conduct and Engagement) Rules, 2020, no reasons need be indicated in the termination orders. The applicant had accepted the payment of her salary in lieu of the notice which was sanctioned in connection with the letter of termination. The applicant has filed this OA praying for reinstatement which is impermissible as per the vacancy reservation guidelines issued by the Government of India. As the termination of applicant is in accordance with the admissible rules for GDS and the recruitment procedure, he prayed for dismissal of OA.
7. The learned counsel for the respondents relied upon the following decisions in support of his case, namely: -
(i) Union of India & Ors. Vs M Bhaskaran (AIR 1996 SC 686)
(ii) Ashok Kapil versus Sana Ulla (dead) & ors [(1996)6 SCC 392]
(iii) R. Vishwanath Pillai versus State of Kerala & Ors [(2004 (2) SCC 105].
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8. Heard both counsels and perused the records.
9. On perusal of the GDS Online Engagement Application submitted by the applicant on 15/04/2019, it is observed that in the column under the head "Category", the applicant has mentioned her category as "UR-EWS" even though she belonged to Other Backward Classes Category.
10. It is stated by the respondents that after verifying uploaded certificates with the original certificates produced by the applicant, the applicant was offered provisional engagement vide Memo dated 05.08.2019, subject to other requisite verifications, including character and antecedents, marks statement and community certificate. Accordingly, the verification of the EWS certificate of the applicant had been taken up with the Collectorate for its genuineness. It was then intimated by the Collectorate office that the said certificate is not EWS certificate. The applicant was directed by the first respondent to produce her EWS certificate. Accordingly, the applicant had submitted her EWS certificate dated 14/12/2020, wherein it is mentioned that the applicant belongs to OBC /UR category. Since the post of GDSBPM, Reactor Research Centre BO, a/w, Kalpakkam S.O. was earmarked for EWS category, she had not been asked to submit any community certificate earlier. The applicant was therefore directed to submit her OBC certificate for verification. The applicant submitted her OBC community certificate dated 14.12..2020. The first 8 of 13 respondent verified OBC certificate produced by the applicant through online portal and it was found to be genuine. Therefore, the applicant was terminated from engagement as per Rule 8(3) GDS (Conduct and Engagement) Rules, 2020 vide first respondent's letter dated 27.01.2021.
11. Annexure R-6 is the Provisional engagement order dated 05/08/2019 issued to applicant stating that she is selected under UR-EWS category and she is provisionally engaged with immediate effect subject to fulfilment of the conditions specified therein. Condition No.4 provides as under: -
"4. She should clearly understand that her engagement as GDS BPM is subject to verification of character and antecedents, SSLC mark list, community certificate (SC/ST/OBC/EWS it applicable) and computer training certificate from the respective issuing authorities and shall be in the nature of contract liable to be terminated by her or by the undersigned by notifying the other in writing and that her conduct and service shall also be governed by the Department of Posts, Gramin Dak Sevaks (Conduct and Engagement) Rules, 2011 as amended from time to time.
5. If these conditions are acceptable, she should communicate her acceptance in the enclosed proforma".
12. Even when the applicant was informed that her selection is being made under EWS category, the applicant did not choose to disclose that she belonged to OBC category. Accepting all the conditions specified in the provisional appointment 9 of 13 order, the applicant had joined as GDSBPM with effect from 05.08.2019. It is clear that despite belonging to OBC category, the applicant had declared herself under UR- EWS category. Even though she was clearly ineligible for appointment against the post earmarked for EWS, she has suppressed the material fact that she actually belonged to OBC category and had fraudulently claimed engagement against the post earmarked for EWS Category.
13. The learned counsel for the respondents has rightly submitted that as per the Government policy and Postal Directorate instructions dated 31.01.2019, persons belonging to EWS who are not covered under the scheme of reservation for SC/ST and OBC shall get 10% reservation in appointments. If a candidate is allowed to continue in a post for which she is ineligible, it will be against the rules of reservation and denies the rights of eligible candidates in Economically Weaker Section for the post and will serve as a back door entry for ineligible candidates by uploading wrong information.
14. The Hon'ble High Court of Madhya Pradesh at Jabalpur, in its decision rendered on 30/04/2024 in W.P.No. 9692/2021 has held that article 16(6) of the Constitution leaves no iota of doubt that reservation for economically weaker section excludes SC, ST and OBC category. It has further held that EWS reservation is available only for General Category and is not extendable to OBC, SC or ST.
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15. It is submitted by the respondents that only after verifying the community certificate of the applicant that the applicant is served with the termination order vide first respondent's Memo dated 27.01.2021. Rule 8(1) of the GDS (Conduct and Engagement) Rules, 2020 provides that the engagement of a sevak who has not already rendered more than three years' continuous service from the date of her engagement shall be liable to be terminated at any time by a notice in writing. The period of such notice shall be one month or the sum equivalent to one month of Time Related Continuity Allowance (TRCA) plus Dearness Allowance. Accordingly, the applicant was duly paid with one-month TRCA through Money order (no.105622128704884010) and the same has been received by the applicant on 12.02.2021. Therefore, the respondents claim that the termination of applicant is in accordance with the admissible rule for GDS and the recruitment procedure.
16. The applicant claims that her service has become permanent in nature since she has worked for 240 days continuously in a calendar year, as per Industrial Dispute Act 1947. However, the question as to whether the provisions of Industrial Disputes Act, 1947 would be applicable to the case of Gramin Dak Sevaks or not in the matter of termination, was considered by the Hon'ble Supreme Court in Sub Divisional Inspector of Posts, Vaikom vs. Theyyan Joseph reported in (1996) 8 SCC 489 and it is held by the Apex court that the method of recruitment, conditions of service, scale of pay and the conduct rules regarding the service conditions of extra departmental agents (now GDS) are governed by rules and do not belong to the 11 of 13 category of workmen attracting the provisions of the Industrial Disputes Act, 1947. Thus, the applicant being governed by the Department of Posts, Gramin Dak Sevaks (Conduct & Engagement) Rules 2011, cannot claim regularization under the Industrial Disputes Act, 1947.
17. The applicant has averred that the first respondent has terminated her without giving any opportunity and thus has violated the principle of natural justice. However, the respondents while denying the same have contended that the applicant was given reasonable opportunity to submit her statement regarding her engagement in the post earmarked for EWS category and the applicant has submitted her statement on 22.01.2021. The applicant has admitted that she had applied for post earmarked for EWS category while she belonged to OBC category. Only on 27.01.2021 she was issued with termination notice, which is in order as per the applicable rules and instructions on the subject.
18. The Hon'ble Supreme Court in the case of Union of India & Ors. vs M. Bhaskaran (AIR 1996 SC 686) has held that "Fraudulently obtained appointment orders could be legitimately treated as voidable at the option of the employer and could be recalled by the employer and in such cases merely because the respondent- employees have continued in service for number of years on the basis of such fraudulently obtained employment orders cannot create any equity in their favour or 12 of 13 any estoppel against the employer.".
19. In Satish Chandra Yadav V. Union Of India & Ors [(2022 10 S.C.R. 537], while dismissing the appeal, the Hon'ble Supreme Court has held that "We are of the opinion that it was a deliberate attempt on the part of the appellant Satish Chandra Yadav to withhold the relevant information and it is this omission which has led to the termination of his service during the probation period. In view of the aforesaid, the Appeal arising out of the Special Leave Petition (C) No. 20860 of 2019 filed by Satish Chandra Yadav fails and is hereby dismissed. ".
20. In view of the decisions referred to above, the action taken by the respondents in terminating the services of the applicant cannot be faulted with.
21. The applicant has prayed for reinstatement in service. In this regard, the respondents have submitted that the applicant has not exhausted the Departmental remedies available to him and without submitting any representation to the higher authorities against her termination, she has directly approached this Tribunal by filing this OA for reinstatement.
22. The Hon'ble Supreme Court in the case of Ashok Kapil vs. Sana Ullah (Dead and Ors) [(1996) 6 SCC 392], has observed that "the maxim 'Nullus 13 of 13 Commodum Capere protest de injuria sua propria' (No one can take advantage of his own wrongs) is one of the salient tenets of equity. The respondent cannot secure the assistance of a court of law for enjoying the fruits of his own wrong.". Therefore, the prayer of the applicant for reinstatement cannot be acceded to or considered on the principles equity.
23. In view of the foregoing, we are of the view that O.A. is bereft of any merits and hence dismissed. No order as to costs.
(Sisir Kumar Ratho) (Veena Kothavale)
Member(A) Member(J)
18.02.2025
asvs