Central Administrative Tribunal - Ernakulam
Deepa S Nair vs The Secretary And Director General Of ... on 10 May, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00264/2018
Wednesday, this the 10th day of May, 2023
CO RAM:
Hon'ble Mr. Justice Sunil Thomas, Judicial Member
Hon'ble Mr. K. V. Eapen, Administrative Member
1. Deepa S. Nair, aged 44 years,
W/o A.R. Anilkumar,
Sub Postmaster, Pulickakavala S.O.,
Kanjirappally-686 515
Residing at 'Deepa Nivas', Theerthapadapuram P.O.,
Kottayam-686 505.
2. Jyothi P. Vasu, aged 43 years,
W/o Krishnakumar K.K.,
Sub Postmaster, Neendoor S.O.-686 601
Residing at Kannattu,
Manarcaud P.O.- 686 019
3. Sreerekha K.P, aged 43 years,
W/o Anilkumar P.P.,
Postal Assistant, Ekm High Court SO,
Residing at Sreekrishna Mandir,
South Chittoor P.O.,
Kochi-682 027.
4. Sumi Thomas, aged 46 years,
W/o John V.S.,
Postal Assistant, Edappally,
Residing at 'Thiruchitham
Valiyaparambil' House, Puthenpurackal Road,
Manjummel, Udyagamandal P.O. Pin 683 501.
5. Rajasree S., aged 42 years,
W/o Anilkumar B.,
Postal Assistant, Trivandraum Pettah P.O.,
Residing at TC94/3055, Madathil Veedu,
Kannamoola, Trivandraum Pettah P.O.,
Trivandrum-695 024.
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6. Vijimol George, aged 45 years,
W/o Sajan Varghese,
Accountant, O/o The Superintendent of Post Offices,
Alappuzha Division, Alappuzha,
Residing at 'Puthenpurackal',
Power House Ward,
Alappuzha-688 012.
7. Asha A.S., aged 41 years,
W/o Gopakumar B,
Office Assistant, O/o The SSPOs, Kollam Division,
Residing at Poomekhala, Arsha Nagar 1H,
Kavanad, Kollam-691 003.
8. Kalpana Somasundaram, aged 46 years,
W/o B. Sureshkumar,
Postal Assistant, Kollam HO.,
Residing at Santhibhavan,
Kilikollur P.O.,
Kollam-691 004.
9. Bindu Lakshmi V., aged 44 years,
W/o Harikumar T.,
Sub Postmaster, Karukutty SO,
Residing at 'Rema Sadanam',
Nayathode, Angamaly-683 572.
10. Jeena R., aged 43 years,
W/o Sajeevkumar M.M,
Office Assistant, O/o the SSPOs, Kollam Division,
Residing at Udayam, Mythri Residents, 35A,
Kadappakkada, Kollam-691 008.
11. S. Sheeja, aged 45 years,
W/o C.D. Manoj,
Postal Assistant, Mayyanad S O., Kollam,
Residing at Gouthaman, Mayyanad P O-691 303.
12. Silanadhan B., aged 59 years,
S/o Bernard P.,
Postal Assistant, Karunagapally, Kollam,
Residing at St. Antony's Dale,
Cherussery Bhagom, Chavara P O,
Kollam-691 583.
13. Sindhu K., aged 48 years,
D/o A. Krishnan,
Office Assistant, O/o The SSPOs, Kollam Division,
Residing at Lekshmianandam, Cantonment Southnagar-181,
Beach Road, Kollam-691 001.
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14. Nandakumar K.N., aged 40 years,
S/o M. Narayanan,
Sub Postmaster, Thekumbhagom S O.,
Residing Keralalayam,
Chirakkara P O, Kalluvathukkal, Kollam.
15. Minikumar S., aged 49 years,
W/o Sureshkumar A.,
Office Assistant, O/o The SSPOs Kollam,
Residing at Vaisakham,
Edakkidaom PO,
Ezhukone, Kollam-691 505.
16. Usha Satheesh, aged 44 years,
W/o G. Vinod,
Postal Assistant, Kottayam HO-686 001
Residing at Puthenparambil,
Kottayam South P O-686 013.
17. Siju P.S., aged 45 years,
S/o Sivasankaran P.N.,
Sub Postmaster, Vengallur S O.,
residing at Puthenpurayil,
Kumaramangaalam P.O Pin-685 608
18. Sathyaja C.R., aged 43 years,
W/o Sabu M.S.,
Sub Postmaster, Moolamattom S O.,
Residing at Mundekkunnel,
Kudayathur P O-685 590.
19. Bijimol T.K., aged 46 years,
W/o A.S. Regikumar,
Sub Postmaster, Olessa S O-686 014,
Residing at Aikkaraparambil,
Olessa P O-686 014.
20. Leena V., aged 43 years,
W/o R. Satheeshkumar,
Postal Assistant, Thevara S O-682 013,
Residing at BH4, Post and Telegraph Quarters,
Thevara PO,
Ernakulam, Pin 682 013.
21. S. Mahalakshmi, aged 45 years,
W/o R. Suraj,
Postal Assistant, Trivandraum GPO,
Residing at Omkar, SNA s-74, Sasthri Nagar South,
Karamana, Trivandraum-695 002.
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22. Priya E.R., aged 42 years,
W/o Anil Bhaskar,
Postal Assistant, Thodupuzha P.O.-685 584
Residing at Santhi Nivas,
Thodupuzha P.O.685 584.
23. B. Sreekala, aged 45 years,
W/o M.S. Sanilkumar,
Office Assistant, O/o The SSPOs,
Trivandrum North Division,
Residing at Kausthubham,
PKRA C 134, Kadungannoor PO,
Vattiyurkkavu, Trivandraum -695 013.
24. Samuel G., aged 46 years,
S/o Geevarghese Samuel,
Postal Assistant, Tiruvalla HQ,
Residing at Bethel, Oripuram,
Chennithala P.O.,
Alappuzaha-690 105.
25. Shubha C.S., aged 45 years,
W/o R. Ganesh,
Sub Postmaster, Manjadi Junction S O.,
Residing at Chandralayam,
Peringara P.O.,
Tiruvalla-689 108
26. S. Surendran, aged 45 years,
S/o Santhakumar K.R.,
Trainer, O/o The SPOs, Tiruvalla Division,
Residing at Kollarkulathil,
Kumbanadu P O-689 547
27. Meenakshi Ammal S., aged 44 years,
W/o M.S. Mani,
Postal Assistant, Trivandrum Fort P.O.,
Residing at TC 28/1216-2, Sreekanteswaram,
Trivandrum Fort P.O-695 023.
28. R.P. Sandeep, aged 42 years,
S/o E.N. Ramachandran Thampi,
Office Assistant, O/o The SSPOs,
Trivandrum North Division,
Residing at Sangeetha, ANRA-16,
Mavarthalakanam,
Sreekariyam PO, Trivandrum-695 017.
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29. Ranjithanand Bhat N, aged 42 years,
S/o Narayana Vadhyar R.,
System Administrator, TVM Chalai PO,
Residing at TC 20/2634,
SS Street, Karamana PO,
Thiruvananthapuram-695 002.
30. Aparna D.R., aged 42 years,
W/o Prasanth Kumar Varma,
Postal Assistant, Medical College PO,
Trivandraum
Residing at Cordon, Sreevalsam-2D,
Pippinmood, Peroorkada PO,
Trivandrum-695 005.
31. Ajitha V.R., aged 45 years,
W/o Sunil M.S.,
Postal Assistant, TVM University SO, Dn,214,
Residing at Sreepadmam, Darshan Nagar,
Kudappanakunnu, Trivandrum pin 695 043
32. Rema Sankar V., aged 45 years,
W/o Sureshkumar R,
Postal Assistant, Vikas Bhavan P O,
residing at KKRA 23,
Sreeniket, Thycaud PO, Trivandrum-695 014.
33. Kavitha G.S., aged 43 years,
W/o Asokan K.R.,
Postal Assistant, Trivandrum Chalai P O,
Residing at T.C.5/1174(1) Sradha Survey School Road,
Peroorkada,
Trivandrum, Pin 695 005.
34. P. Santhy, aged 48 years,
W/o M.G. Rajkumar,
Postal Assistant, Pattom Palace P O,
Residing at TC 4/2059(3)/Daffodils,
Kuravankonam, Kaudiar PO,
Trivandrum-695 003.
35. Maya C.V., aged 43 years,
W/o Ganesh Kumar B,
Postal Assistant, Pattom Palace PO,
Trivandrum,
Residing at Vijayalayam, Jai Nagar,
JRA 417, Thirumala P O.,
Trivandrum-695 006.
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36. T.S. Leela, aged 46 years,
W/o R. Gopalakrishnan,
Postal Assistant, Medical College P O.,
Trivandrum
Residing at PRA-A-45, Panchajanyam,
Samskara Lane,
Powdikonam, Trivandrum-695 588.
37. Jaya S., aged 46 years,
W/o K.K. Sunilkumar,
Sub Postmaster, Melvettoor SO,
Residing at Prithvi,
Cheriyannoor PO -695 142.
38. H. Letha, aged 42 years,
W/o L. Ganapathy,
Office Assistant, O/o The SSPOs,
Trivandrum North Division,
Residing at Flat 1D,
Shreyas Apartments, Vallakadavu PO,
Trivandrum. - Applicants
(By Advocate:Mr. Shafik M. Abdul Khadir & Mr. P.V. Saleem )
VERSUS
1. Union of India,
Rep. by the Secretary to Government of
India/Director General of Posts,
Department of Posts,
Ministry of Communications & IT,
Sanchar Bhawan, Sansad Marg,
New Delhi110 001.
2. The Chief Postmaster General,
Kerala Circle,
Thiruvananthapuram-695 033.
3. The Senior Superintendent of Post Offices,
Kottayam Division, Kottayam-686 001.
4. The Superintendent of Post Offices,
Changanacherry Division,
Changanacherry-686 101.
5. The Senior Superintendent of Post Offices,
Kollam Division, Kollam-691001.
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6. The Senior Superintendent of Post Offices,
Trivandrum North Division, Trivandrum-695 001.
7. The Senior Superintendent of Post Offices,
Ernakulam Division, Ernakulam-682 011.
8. The Superintendent of Post Offices,
Idukki Division, Thodupuzha-685 608.
9. The Superintendent of Post Offices,
Thiruvalla Division, Thiruvalla-689 101.
10. The Superintendent of Post Offices,
Alappuzha Division,
Alappuzha-688 009
11. The Senior Superintendent of Post Offices,
Aluva Division, Aluva-683 101. - Respondents
(By Advocate: Mr. N. Anilkumar, SPC)
This Original Application having been heard on 28th March 2023, the
Tribunal on 10th May 2023 delivered the following :
ORDER
Per: K. V. Eapen, Administrative Member The applicants in the OA have come to the Tribunal seeking redressal as they are aggrieved by the refusal of the Department of Posts in correcting, what they submit, is an anomaly in their pay and allowances, which has occurred due to an apparent delay by the respondents in ordering their appointments as Postal Assistants. It is submitted this has resulted in a reduction in their salary and seniority. They also submit that they are aggrieved by the refusal of the respondents to correct the same, inspite of repeated requests. They seek the following relief:-
(i) To call for the records relating to Annexure A1 to A11 and to declare that the applicants are entitled to be posted as Postal Assistant with effect from the date on which their batch mates are appointed i.e. in May 1996, at least notionally, with all consequential benefits including arrears of salary.
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(ii) To direct the respondents to notionally appoint the applicants as Postal Assistants with effect from May 1996 and to reckon their pay with effect from the month of May, notionally with all consequential benefits including seniority or in alternative
(iii) To direct the respondents to step up the pay of the applicants on par with the Postal Assistants recruited in 1996 May and to revise their pay and all other consequential benefits including seniority
(iv) To pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case and
(v) To award costs of this proceedings
2. At the time of filing this Original Application, the applicants were working as Postal Assistants or in equivalent similar posts as shown in the cause title. All the applicants had been selected in the vacancies of Postal Assistants occurring in the various Divisions of Kerala Postal Circle for the year 1995. The selection was conducted by the Department of Posts in the year 1995 and all of them were issued appointment order in the year 1996. It is submitted that since the facts and circumstances leading to cause of action in all their cases are similar, the facts relating to the 1st applicant, Deepa S. Nair, Sub Postmaster, Pulickakavala S.O., Kanjirappally, would be described in full in order to appreciate the issue. This applicant (the 1st applicant in the OA) had been selected for appointment to the cadre of Postal Assistant in Kottayam Division as per the memo dated 23.04.1996 produced at Annexure A1. She then, as per the directions, reported before the 3rd respondent on 24.04.1996 and completed the pre-appointment formalities. She was directed to join the Kottayam HO for pre-induction OA No.180/00264/2018 -9- training from 25.04.1996 to 03.05.1996, as per the memo at Annexure A2. Further, during this pre-induction training, she was also informed she would have to join the Postal Training Centre (PTC), Mysore for induction training, which would commence on 06.05.1996. A copy of this memo dated 30.04.1996 in this connection has been produced at Annexure A3. However, just a few day prior to this, on 02.05.1996, while she was in pre- induction training at Kottayam HO, she was informed by the 3rd respondent by memo dated 02.05.1996 produced at Annexure A4, that the training of the candidates selected for recruitment of Postal Assistants would be kept in abeyance until further orders.
3. Subsequent to the above developments, the applicants along with other candidates were informed that the postponement of the said training at PTC, Mysore was due to an interim order passed by this Tribunal in OA No.500/1996 which had been filed by an unsuccessful candidate hailing from Aluva, who had appeared for the written examination in Aluva Division. The OA had been filed against Senior Superintendent of Post Offices, Trivandrum North Division for not considering her candidature for the written examination in Trivandrum North Division. It appears that none of the selected candidates had been made a party in this OA, but certain selected candidates of Trivandrum North Division were impleaded as per direction in the interim order dated 30.04.1996. Since this had nothing to do with the appointments in other Divisions, some of the applicants in the present OA had approached this Tribunal in OA Nos.554, 562 and 571/1996 challenging the Annexure A4 order keeping the induction training in OA No.180/00264/2018 -10- abeyance. They also impleaded themselves as party in OA No.500/1996 and sought for a vacation of stay granted therein.
4. It appears that by an interim order in OA No.554/1996, this Tribunal on 27.05.1996 ordered that the earlier interim order in OA No.500/1996, keeping the training in abeyance, would govern only the candidates /appointees Trivandrum North Division. Thereafter, as per order dated 27.05.1996, this Tribunal varied the interim order passed in OA No.500/1996 and permitted the respondents to send all the other candidates for training. It was directed that the training would go on, but that the appointments pursuant to that, would be subject to the final orders in the Original Application. This order in OA No.500/1996, dated 27.05.1996 has been produced at Annexure A5. It is submitted that inspite of this order, the applicants were actually not sent for training. Later, the OA No.500/1996 was finally disposed by the Tribunal as per orders dated 01.07.1996 produced at Annexure A6. In this order, the application filed by the applicant from Aluva for appointment as Postal Assistant in Trivandrum North Postal Division was considered and it was found that it was not a fit case to exercise the Tribunal's discretionary jurisdiction in favour of applicant and unsettling the settled state of things. Later, by a common order in OA Nos.554, 562 and 571/1996 dated 03.07.1996, produced at Annexure A7 this Tribunal disposed of the matter filed by the applicants therein (some of the applicants herein) relating to the postponement of the pre-appointment training for those candidates to be appointed as Postal Assistants. In the order the Tribunal noted that the interim order in OA OA No.180/00264/2018 -11- No.500/1996 had created some confusion in the minds of the authorities which led to the postponement of training. It was also noted that the learned counsel for the applicants in OA No.554/1996 had argued "with considerable vehemence" that postponement of training would adversely affect the service prospects of his clients. It was noted as follows:-
"2.........According to him, delay would lead to loss of seniority, as those trained earlier would get appointments earlier. Learned counsel for respondents assures us, that by reason of delay in training, seniority will not be adversely affected. Appointments will be made against the vacancies in each Divisions. Perhaps one way of preventing loss of seniority is by granting seniority with reference to the date of occurrence of the vacancy to which a candidate is appointed, irrespective of the data of completion of training. Ordinarily, after training candidates are appointed to ascertained vacancies. Even if appointment is delayed, due to delay in training, if appointment is dated back to the arising of the vacancy, delay in training will not affect seniority vis-a-vis those in the same batch trained earlier and appointed in other Divisions. Department will ensure that delay in holding the training will not act to the detriment of appointees. (emphasis added) The application was disposed of as per the above order. Soon after this, the Department directed the candidates, including the first applicant herein, to join the PTC, Mysore for induction training as per memo dated 30.07.1996 produced at Annexure A8.
5. The applicants submit that the directions of this Tribunal in the order at Annexure A7 above has not been complied in letter or spirit by the Department of Posts. The applicants were not appointed, even notionally, from the date of those who had been sent for training earlier in time. Nor OA No.180/00264/2018 -12- were they given seniority and pay parity with other candidates selected in the same examination in other Divisions, whose controlling officers did not withhold them from attending the training on the basis of the interim orders in OA No.500/96. This has affected them in terms of their pay/ seniority. In this connection they bring to notice an OM issued by the Department of Expenditure, Ministry of Finance dated 19.03.2012 under which Central Government employees who were due to get annual increment between February and June 2006 were given an additional increment on 01.01.2006 in the pre-revised pay scale as a one time measure followed thereafter by the next increment in the revised pay structure w.e.f. 01.07.2006, in relaxation of the stipulation in Rule 10 of Central Civil Services (Revised Pay) Rules 2008. A copy of the OM dated 19.03.2012 issued by the Department of Expenditure, Ministry of Finance has been produced at Annexure A9. It is submitted that soon after this OM was issued, the 1st applicant had made a representation on 20.06.2012 stating that, due to this OM, certain candidates selected by the same examination whose training was not withheld by the concerned Divisions on the basis of the interim order in OA No.500/1996, had got themselves placed in a higher pay stage after the implementation of the 6th Central Pay Commission (CPC). These candidates had got the benefit of one increment due to the orders produced at Annexure A9. It was submitted that she and other seniors should be in concordance with others for these benefits. However, the Department had failed to extend the benefits to her and others, disregarding the directions of the Tribunal at Annexure A7. In other words, while the recruitment was done as per the same examination held at different Division headquarters, some candidates OA No.180/00264/2018 -13- who were selected are being deprived of the benefits for reasons not attributable to them. All those who were sent for training by some of the Superintendents of Post Offices in some Divisions, who either were ignorant of the interim orders of this Tribunal in OA No.500/1996 or had ignored the same, had got the increment with effect from 01.01.2006 and another from 01.07.2006, placing them in a higher pay stage after the implementation of the recommendation of the 6th CPC.
6. It is submitted that one such Division was the Pathanmthitta Division. The Applicants have brought to notice the cases of atleast two Postal Assistants/ Sub-Post Masters from the same recruitment both of whom at the time of filing this OA, were drawing salary with basic pay of Rs.16750/- as on 01.01.2016 in the pre-revised scale of 7th Pay Commission, whereas the basic pay of the applicants as on 01.01.2016 was Rs.16490/- only in the said pre-revised scale of 7th Pay Commission. It is submitted that this difference in the pay stage/anomaly is against the direction of this Tribunal as brought out in the common order at Annexure A7. Hence depriving benefits to certain officials for reasons not attributable to them is injustice. It is submitted that the applicants were not in fact aware that their counterparts in other Divisions who are recruited as per the same examination were actually drawing more pay as compared to them. Soon after they came to know about the same they had submitted their representation (dated 20.06.2012 produced at Annexure A10 in the case of the 1st applicant) to the 2nd Respondent. Other affected employees also submitted similar OA No.180/00264/2018 -14- representations. It is submitted that those who had been deputed for training in May and were appointed in August had benefitted by the grant of the two increments, whereas the applicants had got only the benefit of the 2nd increment. They were therefore, one stage ahead of the applicants in the stage of pay. This was also reflected in the MACP placements. It is submitted that the 1st applicant later submitted another comprehensive representation dated 18.10.2016, produced at Annexure A11. It is submitted that others have also submitted identical representations but no action has been taken. Thus, the delay in appointment, has affected the applicant's pay stage and even eligibility for MACP and it has thus left behind those who were selected by the same selection on the same day. The applicants contention is that till the 6th CPC recommendations were implemented, there was not much anomaly between them and others. However, when date of increment was fixed on 1st July it has affected them as those who went for training in May stole a march over them and are one stage ahead. This has resulted in gross inequality which has failed the equality clauses enshrined in Articles 14 and 16 of the Constitution. At Annexure A12 the 1st applicant has furnished pay records in comparison with another official who was sent for training in the month of May itself to reveal the disparity between the two otherwise similarly placed individuals. It is submitted that there is lethargy on the part of the respondents even to reckon the date of appointment of the applicants at least notionally with effect from the date of appointment of their batch mates. This has happened inspite of directions of this Tribunal in Annexure A5 and A6, which had clarified that the order of stay applied only to Trivandrum North Division and inspite of the disposal OA No.180/00264/2018 -15- of the OA 500/1996 on 01.07.1996. Inspite of these orders they were sent for training only later in August 1996.
7. It is submitted by the applicants that their appointment is governed by the Department of Posts (Postal Assistants and Sorting Assistants) Recruitment Rules 1990. The recruitment is centrally made by the Head of Circle for the whole Circle according to the vacancy position in the Postal Divisions. The Appointing Authority however is the Head of the Division concerned. He is required to maintain a Gradation List of Postal Assistants for the concerned Division showing the rank and seniority of the Postal Assistants working in the Division. It is submitted the next promotion to Lower Selection Grade, is a Circle level promotion from the feeder category of Postal Assistants. For this purpose the Head of the Circle is required to compile a Circle Gradation List of all Postal Assistants showing the rank and seniority of all the Postal Assistants in the Circle. This is preponed to facilitate selection of the Postal Assistants for Lower Selection Grade posts. Further, the applicants submit that it is provided under Rule 32-E of the Postal Manual Volume IV, that the seniority of an official appointed to a cadre to which recruitment is made through the same examination should be fixed according to the order of merit in the said competitive examination. It is therefore submitted that the date of deputing an official for induction training or any other pre-appointment formalities has no relevance whatsoever for determining their seniority. In the present case all the applicants and other candidates came through the same competitive examination and they should be ranked according to the order of merit in OA No.180/00264/2018 -16- the examination. As such, it is submitted that all the applicants herein rank higher to at least some of the officials deputed for induction training at PTC Mysore in May 1996 itself. Therefore, the applicants should be senior in rank over some of their batch mates who were deputed for induction training at PTC Mysore in May 1996.
8. It is further submitted that the 2nd respondent has not compiled the Circle Gradation List of the Postal Assistants for the relevant period and circulated the relative seniority position of the applicants vis-à-vis their batch mates. In such circumstances, it is submitted that they should not be subjected to prejudice for culpable omission and inaction of the concerned authorities for not ordering notional appointment by stepping up their pay with reference to their juniors ranked lower in the said selection process. This exercise should have been done at least at the time of implementation of the final order of the Tribunal at Annexure A7. Thus the respondents should be directed to step up the pay of the applicants with reference to the pay of their batch mates who had joined induction training in May 1996 for the purpose of drawing their correct pay, increments, pension and other retiral benefits. The applicants submit that in Bhoop v. Matadin Bhardwaj (1991) 2 SCC 128 and in Nirmal Chandra Bhattacharjee v. Union of India 1991 Supp (2) SCC 363, the Apex Court had taken the stand that the mistake or delay on the part of the Department should not be permitted to recoil on the party. It is submitted that the applicants are made to suffer solely on account of the lethargy of the respondents in implementing the A7 common order of this Tribunal in OA Nos.554/1996, 560/1996 and OA No.180/00264/2018 -17- 571/1996, brought out earlier.
9. The respondents have filed a detailed reply statement and have followed it up with additional reply statement to meet certain further averments made in the rejoinder submitted to the reply by the applicants. In the reply statement their main point for consideration, reiterated during oral submissions by the Learned Senior Panel Counsel (SPC) for the respondents, Shri N. Anil Kumar is that the OA had been filed by the applicants praying to declare that they are entitled to be posted as Postal Assistant with effect from the date on which their batch mates were appointed i.e. from May 1996, at least notionally with all consequential benefits including arrears of salary. It is submitted that, as such, the cause of grievance of the applicants pertains to an action taken 22 years prior to filing of the OA. Since such a cause of action had arisen so long ago, the matter is hopelessly barred by limitation, under Section 19 of Central Administrative Tribunal Act, 1985. It is liable to be dismissed solely on this ground as the applicants, having kept silent for nearly 22 years without objection, have lost their right. It is pointed out that this Tribunal had dismissed OA 341/2013 filed by Smt. Lovely Thomas praying to revise the circle wise seniority list finalized and circulated during the year 2008 vide its order dated 15.09.2014, in view of the bar of limitation. It is submitted that the observations made in that OA are squarely applicable in this case and that the applicants should be stopped from questioning their date of appointment at this distant point of time. Further, the findings in OA No.341/2013 were relied upon in OA No.495/2013 dated 14.11.2014, where OA No.180/00264/2018 -18- the Tribunal was of the view that delay in approaching this Tribunal itself takes the wind out of the sails of the applicants. Further, Learned SPC during oral submissions brought to notice the matter of S.S. Balu and Anr.
Vs State of Kerala and others 2009 (2) SCC 479, wherein the Hon'ble Supreme Court had observed that it is a well settled principle of law that "delay defeats equity". It was held therein that it is a trite law that where the writ petitioner approaches the High Court after a long delay, the reliefs prayed for may be denied to them on the ground of delay and laches, irrespective of the fact that they are similarly situated to the other candidates who obtain the benefits of the judgement. It was also held that it was not possible to issue any direction to the State of Kerala or the Commission to appoint the appellants at this stage.
10. Learned SPC for the respondents also submitted that, similarly, in K.R. Mudgal & Ors v. R.P. Singh & Ors. {1986(4) SCC 531}, decided on 30.09.1986, the Hon'ble Supreme Court had opined that it is essential that any one who feels aggrieved by the seniority assigned to him should approach the court as early as possible, as otherwise, in addition to the creation of a sense of insecurity in the minds of the Government servants, there would also be administrative complications and difficulties. Further therein, it was held that a Government servant, after a period of 3 or 4 years of his appointment, should be allowed to attend the duties attached to his post peacefully and without any sense of insecurity. It was observed that the appellants therein had been put to the necessity of defending their appointments as well as their seniority after nearly three decades. This kind OA No.180/00264/2018 -19- of fruitless and harmful litigation should be discouraged. Further, in Nirmal Chandra Sinha vs Union of India & Ors { 2008 (14) SCC 29} decided on 31.03.2008, the Hon'ble Supreme Court observed that it has been held in a series of decisions of this Court that a promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or creation of the post, vide Union of India and others vs. K.K. Vadera and others 1989 Supp(2) SCC 625, State of Uttaranchal and another vs. Dinesh Kumar Sharma 2007 (1) SCC 683, K.V. Subba Rao vs. Government of Andhra Pradesh 1988 (2) SCC 201, Sanjay K. Sinha and others vs. State of Bihar and others 2004 (10) SCC 734 etc. Further in Shiba Shankar Mohapatra & Ors. vs. State of Orissa {2010 (12) SCC 471}, the Hon'ble Supreme Court held at paragraph 28 that it is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the Court is guilty of delay and the laches. The Court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallises in the interregnum. It was further held, therein, that the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. It was observed in S.S. Mohapatra & Ors.(supra) as follows:-
" 29........In K.R. Mudgal(supra) this Court has laid down in crystal clear words that a seniority list which remain in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing OA No.180/00264/2018 -20- satisfactory explanation."
Thus, the major contention taken by the respondents in their reply statement, as well as in the oral submissions by the learned SPC is on the issue of delay and laches and that delay defeats equity. It is submitted that recruitment undertaken herein to the post of Postal Assistants, was a direct recruitment and, as such, the service of those selected can start only from the date of assumption of charge by the incumbent and not earlier. It is contended that there would be huge amount of procedural issues in case the OA was allowed. The point was that there was a stay in the matter issued in OA No.500/1996, which was only vacated later. After the vacation the respondents had tried to get slots for deputing the applicants for training. However, the slots were filled up and hence the applicants could be sent only in August 1996 for the training.
11. Coming to the other contentions taken in the OA, the respondents have clarified in the reply statement that the recruitment of Postal Assistants in the Department of Posts is governed by the Department of Posts (Postal Assistants and Sorting Assistants) Recruitment Rules 1990. The Postal Assistants are recruited through a notification which is made as per the vacancy position in the recruiting units which is the Postal Division. It is clarified that the appointing authorities for Postal Assistants are the respective Divisional heads of the concerned Divisions. Hence, as far as Postal Assistants are concerned, the respective Divisional heads are only required to maintain Divisional Level Gradation Lists as per seniority of the OA No.180/00264/2018 -21- officials under their division based on the rank and seniority of the Postal Assistants working in the Division. In other words, the Postal Assistants are borne on a Division cadre and the appointing authorities are the respective Division heads as notified in the Recruitment Rules 1990. Therefore, any candidate selected for the post of a particular Division is only part of that Division under that appointing authority only. This implies that the applicants, being Postal Assistants posted in a particular Division, cannot compare themselves with officials of other Postal Divisions even if the examination was held at the Circle level on the same date. Hence, in other words, it is contended that seniority is only maintained at the Divisional level and not at the Circle Level as far as Postal Assistants are concerned. Though the examination may have been conducted Circle wise, the role of the Circle Office is confined to coordination only. It is reiterated that appointment is done only at the Divisional level and each appointing authority, i.e. the respective Divisional head, is required to maintain Divisional Level Gradation Lists as per seniority under their respective Division. Further clarifying the implications of this position it is submitted by the respondents that there has been no anomaly in the case of the applicants within the Division and within the batch of recruitment in that Division. There is thus no anomaly in the fixation of pay or in the seniority of the applicants, which had been affected by the delay in conducting the induction training programme. If there are any grievances regarding anomaly in pay pertaining to the same Division, then it is a general rule that stepping up of pay is allowed if juniors of the same Division are drawing more pay. In other words any issue of stepping up of pay has to be confined OA No.180/00264/2018 -22- in comparision between the employees of the same Division only. The same cannot be compared or claimed with other Divisions for stepping up of pay.
12. The main facts of the case, in respect of dates of recruitment and other developments, pointed out in the the OA, are not disputed by the respondents. They only supplement these facts, by stating after the applicants had undergone induction training at PTC, Mysore for 2 ½ months from 05.08.1996, they attended practical training at the respective Head Offices. All the applicants were confirmed with effect from 14.11.1998 latest after their training was completed and after completion of their prescribed period of probation satisfactorily. In their cases their date of entry as Postal Assistants thus ranged, depending on the date they joined, between 06.11.1996 to 13.11.1996. They were also granted financial upgradation as per date due under the MACP on completion of 10 and 20 years of regular service, as per options exercised by them. The pay of the applicants as on 01.01.2016 was Rs.42,800/-. It is accepted that the reason for difference in the pay between those who were recruited and sent for training in May 1996 and the applicants, who were deputed in August 1996 was because of the OM No.10/02/2011-EIII/A dated 19.03.2012, produced at Annexure A9. It is submitted that applicants who were given training during the month of August, 1996 did not get the extra one increment granted to other trainees who had commenced training during the month of May 1996. It is submitted that anomaly occurred, not due to any error on the part of the respondents, but was consequent to the implementation of the recommendation of the VIth CPC. When the increment date was fixed as 1st OA No.180/00264/2018 -23- July of the year for all employees as per Annexure A9 OM, all those who had undergone training during the month of May did steal a march over the applicants and are thus one stage ahead of the applicants.
13. It is submitted that there was no wilful delay in sending the applicants for training on part of the respondents. It was only due to the interim order in OA No.500/1996 filed by the appellant in Aluva Division against the recruitment process in Trivandrum North Division. Pursuant to the order dated 27.05.1996 in OA No.500/1996, the respondents had taken steps to send all the candidates for training at PTC, Mysore. However at that time all the seats in PTC, Mysore were filled up, as the PTC functions as a training centre for many postal circles, including those of Andhra Pradesh, Karnataka and Kerala. It is submitted that it was not possible to train the candidates from 3 circles at one time. In the instant case, the applicants had been first directed to attend PTC, Mysore for induction training for the period of 2 ½ months, commencing from 06.05.1996. However, the interim order of the Tribunal in OA No.500/1996 was received directing induction training at PTC, Mysore to be kept in abeyance until further orders. By the time the Tribunal's order dated 27.05.1996 had varied this interim order, the training conducted at PTC had already started, by filling up the vacant seats by recruits from other circles. Hence, it was not possible to depute the applicants for induction training on 27.05.1996 and they had to wait for the training of the next batch. Accordingly, the applicants were inducted in the next batch of training which commenced from 05.08.1996. Thus, there had been no wilful delay in sending the applicants for training and the training OA No.180/00264/2018 -24- had to be postponed due to the interim orders of this Tribunal in OA No.500/1996.
14. Further clarifying the issue relating to the gradation list of Postal Assistants and their seniority, the respondents have again reiterated that each appointing authority, being the Divisional head for the concerned Division, is only required to maintain the Divisional Level Gradation List, based on rank and seniority of the Postal Assistants working in the Division. The Circle Gradation List is only a compilation of Divisional Gradation Lists received from the concerned Divisions. The Circle Gradation List is used solely for the purpose of reckoning seniority for the eligibility of the officials to be placed in the Lower Selection Grade which is a Circle Cadre. The respondents point out that in the instant case the last Circle Gradation List was issued on 01.01.2008. The same was also circulated among all the stakeholders. None of the applicants had objected to their position in Circle Gradation List on the ground that it was affected by the developments that they are now contending in the OA. Without raising any objection all these years raking such old settled issues at this distant point of time is not acceptable as per the Apex Court pronouncements cited earlier. The earliest any representation was received was only during the year 2012, after the issuance of Annexure A9 OM of the Department of Expenditure, Ministry of Finance. Even by that time as many as 16 years had passed since the date of joining of the applicants. The seniority of all the officials including the applicants had become settled by then as per K.R. Mudgal(Supra). Thus the applicants, having kept silent for nearly 16 years, without objecting are OA No.180/00264/2018 -25- estopped at this point of time.
15. It is also contended by the respondents that none of the applicants have satisfied the prescribed conditions, stipulated in Fundamental Rule 22 (FR 22) for stepping up of pay. They cannot compare themselves with employees of some other Divisions cited in the OA. Another issue contended by the applicants is regarding the financial upgradation under the MACP Scheme benefiting those who joined earlier. However, the respondents seek to explain that on the ground that 'regular service' is the sole criterion for considering the eligibility for financial upgradation under MACP Scheme. As per DoPT OM on the MACP Scheme dated 19.05.2009, there were e three financial upgradations allowed under the MACPS to be counted from the direct entry cadre on completion of 10, 20 and 30 years. Further, paragraph 9 of the said guidelines also stipulated that 'regular service' for the purpose of the MACPS, shall commence from the date of joining of a post in direct entry grade on a regular basis, either on direct recruitment basis or on absorption /remployment basis. As the regular service of the applicants had commenced later than the officials who had joined in other divisions, naturally the officials whose regular service started earlier would get the benefit of financial upgradation a little earlier. Thus, in the instant case, the question of stepping up of pay does not arise at all. The respondents have acted as per the rulings on the subject only. There are no wilful latches on their part. Further, all the applicants in the instant case are direct recruits. So far as direct recruits are concerned the date of service commences only from the date the candidates join in the service and not on a OA No.180/00264/2018 -26- date prior to the same. It is submitted if the claim of the applicants is accepted, it would open a flood gate of litigation as the same would open claim for other Postal Assistant candidates across the Circle who were unable to attend the training due to various personal reasons to approach the Department. It would also unsettle the already long settled seniority position.
16. It is further contended that the claim of the applicants is also not tenable, based on the principle of 'no work no pay', which has been upheld by the Tribunal in a series of cases. The Hon'ble High Court of Kerala, while dismissing the OP(CAT) 317/2016, had referred to the observation of the Hon'ble Apex Court in Suraj Prakash Gupta and others vs. State of Jammu and Kashmir { (2000) 7 SCC 561} in paragraph 80 that, in service jurisprudence, a direct recruit can claim seniority only from the date of his regular appointment. He cannot claim seniority from a date when he was not born in the service. The Hon'ble Supreme Court in A. Janardhanan vs. Union of India (1987) 2 AIR 926 had held that a later direct recruit cannot claim seniority from a date before his entry into in the service or when he was in school or college. It was held by the Hon'ble High Court of Kerala in OP(CAT) No.317/2016 that, in the light of this dictum laid down by the Apex Court in N.K. Chauhan's case, which was reiterated in Suraj Prakash Gupta's(supra) case, there can be no doubt with respect to the position that a direct recruit could not claim ante-dating the year of appointment to a date on which he was not borne in that service.
OA No.180/00264/2018 -27-
17. The applicants, in their rejoinder, have sought to justify their position. They contend they had reacted timely when the disparity came to their notice on issuance of Annexure A9 OM by the Government of India. As soon as the OM was issued they had made their representations. Further, the contention made by the respondents that they had taken steps to depute the applicants as early as possible after the orders of the Tribunal was received on 27.05.1996 is also disputed. It is submitted by the applicants that the contention that all the seats of the PTC, Mysore were filled up by others from other Postal circles and that there was non-availability there is absolutely false. The selected candidates were initially directed to join training at Mysore on 06.05.1996. All the seats were earmarked for them and thus, nobody else could be deputed. The applicants alone were stopped from attending the training. The respondents have not controverted the contention made in the OA that respondents failed to adhere to the orders dated 17.05.1996 and 27.05.1996 by this Tribunal. It is only because the respondents failed to comply with these directions in time that all the seats in PTC, Mysore may have been filled up by candidates from other circles. Further, the applicants also contest the contention that the training can only be imparted at PTC, Mysore. There had been trainings imparted locally earlier, at the head quarter region/circle level, whenever there were seats constraints at PTC, Mysore. The respondents should have made such an arrangement in the instant case to honour the Court's directions. This was not done inspite of this Tribunal's common order at Annexure A7 in OA Nos.554/1996, 562/1996 and 571/1996 dated 03.07.1996 which clearly stated that Department will ensure that delay in holding the training will not OA No.180/00264/2018 -28- act to the detriment of appointees. It is submitted that this direction of the Tribunal has been completely dishonoured. In addition, it is submitted that the applicants never sought to ante-date their date of appointment, as contended in the reply statement. Nor have they asked for stepping up of pay as such. The respondents are raising issues beyond the claim put forth. The applicants have only sought parity which had been granted by the Hon'ble Tribunal by Annexure A7 order. The parity was sought when the disparity became obvious by the actions taken by the Department in the year 2012. Further, it is also not the case that if the claim of the applicants were accepted it would lead to a flood gate of litigations on the ground that it would open up claims for other Postal Assistant candidates across of the circle, who had been unable to attend the earlier training due to various personal reasons. Such a contention is not applicable in the instant case. It was only due to slackness on part of Department that timely training was denied to the applicants herein. There were no personal reasons or any fault on part of the applicants for the delay in training imparted to them on recruitment.
18. We have carefully considered these different contentions and statements filed by both sides in the OA. In regard to the alleged slackness on part of the respondents in sending the applicants herein for induction training consequent to the series of interim orders issued by this Tribunal starting with OA No.500/1996, we do not see it as that very self evident. Indeed, if the interim orders passed by this Tribunal were properly followed by all Postal Divisions, it would have actually stopped all the new recruits OA No.180/00264/2018 -29- from being sent for the training. It appears that some of the Divisions either did not receive these orders or it might have reached them late. Whatever be the case, some of the newly recruited Postal Assistants were indeed sent to the PTC, Mysore in May 1996 for training by some Divisions, whereas, the Divisions where the applicants were located did not allow them to proceed. In passing, we observe that all this will establish, if it needed to be again established any more, the infallible reasoning behind the Hon'ble Apex Court's various judgements, that Tribunals and Courts have to be extra careful before passing interim orders, which without due consideration have the effect of creating even more unforeseen and complicated consequences. This is particularly relevant in Service matters. Anyway, after a careful consideration of the facts, we have reached the conclusion that neither side can really be blamed for the outcome in this matter. This has indeed affected the applicants, to some extent, as their services have been counted from dates in November 1996, as compared to others who joined a few months earlier. However, at the same time, as pointed out by the respondents, a whole series of relevant issues are relevant for taking into consideration including the fact that appointment and seniority of Postal Assistants is Division wise not Circle wise, before any orders can be passed. In other words, any so called corrective orders could only create more issues affecting settled seniority, etc by initiating consequential actions.
19. We are strongly also persuaded in our thinking by the judgements of the Hon'ble Supreme Court that, if aggrieved by the seniority assigned the same should be contested and finalized within first 3 or 4 years of service OA No.180/00264/2018 -30- and not later. This is the clear impact of the judgements passed in the case of K.R. Mudgal (Supra) and reiterated in Shiba Shankar Mohapatra (Supra) cited earlier. The Hon'ble Supreme Court has made it crystal clear, that a seniority list which remains in existence for 3-4 years should be taken as settled. Thus a period of 3-4 years is taken as a reasonable period for challenging seniority. In case someone agitates the issue of seniority beyond this period, he has to explain the delay and latches in approaching the adjudicatory forum by furnishing a satisfactory explanation. In this case we find no convincing explanation as to why the matter was not agitated earlier, as the applicants very well knew on the date of their joining service, after writing the same examination, that others who wrote the same examination had joined earlier. They waited atleast 16 years from 1996 till 2012 before making their first application to the respondents. The only ground taken by them for this delay was the impact of the OM of the Ministry of Finance came at that time. However, the question of their date of joining and its seniority implication were already settled by then. The argument of the respondents, that there was no illegality done in their case because the seniority list of the Postal Assistant is always maintained at the Division level and not Circle level (State Level) is also acceptable here. It is also clear the Division wise inter-se-seniority was correctly maintained and the applicants were not made to suffer on that score.
20. Thus, we find that all these issues are being agitated on a much later date, which is not acceptable. As pointed out by the Hon'ble Supreme Court in the S.S. Balu case(supra) it is a well settled principle of law that 'delay OA No.180/00264/2018 -31- defeats equity'. After approaching this Tribunal after such a long delay without an acceptable explanation, it will be thus incorrect for this Tribunal to relook into issues which are settled. Hence it is not possible at this length of time to interfere by disturbing settled seniority positions without, as was mentioned, creating ripple effects down the line. There could be a strong sense of uncertainty if any directions in favour of the applicants are passed in the OA and we are conscious of this aspect.
21. Therefore, in view of these overall circumstances and facts, and also considerations brought out in our analysis, we are not in a position to allow the OA. The OA is dismissed. No order as to costs.
(Dated this the 10th day of May 2023)
K. V. Eapen Justice Sunil Thomas
Administrative Member Judicial Member
va
OA No.180/00264/2018
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List of Annexures
Annexure A1- True copy of the Memo No.B/42/Rectt/96 dated 23.04.1996 issued by the 3rd Respondent Annexure A2-True copy of the Memo No.B1/42/Rectt/95 dated 25.04.1996 issued by the 3rd respondent.
Annexure A3- True copy of the Memo No.B1/23 dated 30.04.1996 issued by the 3rd respondent.
Annexure A4- True copy of the Memo No.B1/23dated 2.5.1996 issued by the 3rd respondent.
Annexure A5- True copy of the order dated 27.05.1996 of this Hon'ble Tribunal in Original Application No.500/1996 Annexure A6- True copy of the order dated 1.7.1996 of this Hon'ble Tribunal in Original Application No.500/1996 Annexure A7- True copy of the order dated 3.7.1996 of this Hon'ble Tribunal in Original Application No.554, 562 and 571/1996 Annexure A8- True copy of the Memo No.B1/23 dated 30.7.1996 of the 3rd respondent.
Annexure A9- True copy of the O.M. No.10/02/2011-E.III/A dated 19.3.2012 issued by the Department of Expenditure, Ministry of Finance Annexure A10- True copy of the representation dated 20.6.2012 submitted before the 2nd respondent Annexure A11-True copy of the representation dated 18.10.2016 submitted before the 2nd respondent Annexure A12- True copy of the comparison chart of the pay drawn by the 1st applicant.
*** Annexure R1- True copy of DoPT OM No.35034/3/2008-Estt(D) dated 19.05.2009 ***** OA No.180/00264/2018