Central Administrative Tribunal - Ernakulam
D.V.Praveen vs Union Of India on 14 July, 2015
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.986 of 2013
Tuesday, this the 14th day of July, 2015
CORAM:
Hon'ble Mr. U.Sarathchandran, Judicial Member
Hon'ble Mrs.P.Gopinath , Administrative Member
D.V.Praveen
S/o.Dhamodaran Pillai
GDS BPM, Kura,
Kollam Postal Division
Residing at Pranavam House
Ambipoika, Kundara P.O, Kollam . . . . Applicants
(By Advocate : Mr.V Sajith Kumar)
Versus
1. Union of India, represented by the
Secretary to the Government of India
Department of the post,
Government of India, New Delhi 110 001
2. The Chief Postmaster General
Kerala Circle
Trivandrum 695 101
3. The Senior Superintendent of Post Office
Kollam Postal Division, Kollam 691 001. . . . . Respondents
(By Advocate Mr.N.Anil Kumar, Sr.PCGC(R))
This Original Application having been heard on 12.06.2015, the Tribunal on
14.07.2015 delivered the following:
ORDER
By Hon'ble Mr. U.Sarathchandran, Judicial Member Applicant's grievance is that he had worked in different capacities as GDS Stamp Vendor, Casual Mazdoor, GDS MD and EDDA in different post offices under the Kollam Postal Division from 01.05.1993 and yet respondents are not posting him as Postman inspite of his inclusion in the rank list of successful candidates. He states that vide Annexure A-2 order he was appointed against the post of EDDA Kureepuzha and had worked as such from 24.07.1998 to 12.09.2009 In the meantime, he had to institute several litigations. While working as EDDA Kureepuzha he appeared for the Postman examination as per Annexure A-3 notification. He was provisionally permitted to write that examination by an interim order of this Tribunal. He became successful in the examination and got ranked as per Annexure A-1. According to him, respondents are not appointing him even though the posts of Postman became vacant on cancellation of the appointment of some candidates who were declared successful in the examination. He seeks the following relief:
' (i) To direct the respondents to recast the select list of Postman for the year 2009 as per the directions in O.A 118/2012 and 408/2012 and consider the claim of the applicant for appointment as Postman in view of his merit position in the 2009 examination and recognition of his provisional service in O.A 931/2011 and appoint him as postman with effect from date of entitlement with all consequential benefits.
(ii) Grant such other reliefs as may be prayed for and as the Court may deem fit to grant, and
(iii) Grant the cost of this Original Application. '
2. Respondents contend that the applicant continued for very long time (about 10 years) as a GDS on the strength of court orders and hence he cannot be considered as a GDS. He was allowed to take part in the Limited Departmental Competitive Examination (LDCE for short) for promotion to the post of Postman on the basis of the interim order passed in O.A 684/2009 and since the said O.A was ultimately dismissed, the interim order also has become ineffective. In the circumstance, applicant cannot be considered as a GDS, but could be considered only as an outsider who appeared in the Departmental Examination and hence he is not entitled to the relief sought in this O.A.
3. A rejoinder was filed by the applicant stating that the prayer in O.A 648/2009 was not rejected by this Tribunal and that the said prayer got recognition in R.A 23/2010. He further states that he got a declaration in Annexure A-9 order in O.A 931/11.
4. An additional reply statement was filed by the respondents reiterating the contentions already made by them.
5. We have heard Mr.V.Sajith Kumar, learned counsel for applicant and learned Central Government Standing Counsel for respondents.
6. A historical biograph of the applicant's engagement with the Postal Department has been succinctly portrayed in the order passed by this Tribunal in O.A 931/11, by means of which, he could secure the present posting as GDS BPM at Kura. It reads :
' (a) The applicant was initially engaged to work as E.D.Stamp Vendor at Kollam Head Post Office for the period from 01.05.1996 to 09.01.1997 (i.e. 8 months plus).
(b) He was thereafter engaged as casual labourer from 10.01.1997 to 09.05.1997 (4 months).
(c) This was followed by his engagement as Part time Gardner in the office of 2 nd respondent for the period from 10.05.1997 to 31.12.1997 (7 months and 20 days)
(d) This part of his engagement was followed by his appointment as EDDA Thangassery P.O from 01.02.1998 to 29.06.1998 (i.e. 5 months approximately). (In the meantime, as a notification was issued for selection to the post of EDDA Thangassery P.O, which the applicant was earlier holding, the applicant moved the Tribunal through O.A No.729 of 1998 which was disposed of on 19.05.1998 directing the respondents to consider the applicant also for selection as GDS MD along with others, but bearing in mind DG's order dated 06.06.1988 providing preference to the Casual Labourers.)
(e) On 24.07.1998 the applicant was given the temporary posting as GDSMD, against a Put Off Duty on the plea that the applicant was not selected as G.D.S., Thangassery since there was a more meritorious candidate.
Thereafter, the applicant was asked to function as GDS MD at Kureepuzha which post had become permanently vacant due to the removal of the permanent incumbent therein. When this post was notified, OA No.51 of 2002 was filed by the applicant but not allowed. Against the said order, W.P(C) No.32024/2004 was filed which was disposed of holding that the applicant came second in the selection and that he had been continuing his service for nearly ten years on account of interim order passed by the CAT as well as of the High Court. As the applicant has already come out second in the process of selection for the same post, the High Court was pleased to direct the Chief Post Master General, Kerala Circle, to call for the records from respondents No.1 and 2 and if the petitioner was found honest and competent in discharging the duties, the CPMG could allow him to continue and give proposal for fresh recruitment. The writ petition was however, dismissed.
(f) As the post of GDS MD, Kureepuzha was notified in compliance of the order in O.A No.51/02 and the Hon'ble High Court of Kerala in W.P.C No.32021/2001 (S), the applicant filed O.A No.684 of 2009 and this was dismissed by order dated 25.02.2010. This order was challenged before the High Court in WP(C) No.7760 of 2010, which was disposed of with a direction to the applicant to move a review application to expunge the remarks against his interest.
(g) Thus, on the strength of the order in W.P(C), the applicant filed review application No.23/2010 in O.A No.684 of 2009 which was, though dismissed, contained the following observations:-
' The applicant's appointment was through side door in as much as he was not sponsored by the employment exchange.
But it is not the fault of the applicant. It was the duty of the respondents to make sure that no irregular appointment is made. There are judgments of the Hon'ble High Court of Kerala to the effect that merely because a candidate was not sponsored through the employment exchange he cannot be denied the benefit of preference in appointment in terms of DG posts letter dated 18.05.1979.' '
7. Thereafter, applicant approached the respondents with representations for alternative employment. When the respondents published a notification for filling up the vacancy of GDS BPM, Kura, applicant filed O.A 931/11 before this Tribunal claiming his entitlement to alternative employment as a retrenched GDS in view of DG Post letter No.17-141/88-EDC&Trg dated 06.06.1988 and DG Posts letter No.43-4/77 Per dated 18.5.1979, giving preference for casual mazdoors in appointments as GDS. Since he had claimed that he had worked for more than 240 days as casual mazdoor in 1997, O.A 931/11 was allowed in part directing the respondents to place the applicant's name in the list of discharged/displaced GDS who had 3 years service as per the letter of the DG Post dated 18.05.1979.
8. The pleadings in this O.A and the record produced by both sides show that the applicant had undertaken a series of litigation and finally got posting as GDS BPM Kura vide Annexure A-10 memo dated 20.06.2013. It reads :
' DEPARTMENT OF POSTS INDIA Office of the Sr.Supdt of POs., Kollam Division, Kollam 691001. Ph.2740278, 2760463, Fax 2740278 email: sspkollam, kerala [email protected] Memo No. B3/BO/246 dated at Kollam the 20.06.2013 In compliance with the orders dated 24.02.2012 of Hon'ble CAT in OA No.931/11 and with the approval of the competent authority vide letter No.CO/LC/98/OA/11 dated 13.06.2013, Sri.D.V.Praveen, Pranavam, Ambipoika - 691 501 is provisionally appointed as GDSBPM, Kura in the TRCA @ Rs.3200-60-5000 subject to the following:
(i) The case has been referred by Postal Directorate, New Delhi to Ministry of Law & Justice and the provisional appointment is subject to the view taken on the matter by them and the resultant outcome of the filing of SLP before the Hon'ble Supreme Court of India.
(ii) The Department reserves the right to challenge the judgement of the Hon'ble High Court of Kerala in OP(CAT) No.1606/2012 before the Hon'ble Supreme Court of India.
Sri.D.V.Praveen should clearly understand that his engagement as GDSBPM,, Kura is on provisional basis. The appointment order has been issued reserving the right of the Department to challenge the judgment of the Hon'ble High Court of Kerala in OP(CAT) No.1606/2012 before the Hon'ble Supreme Court of India.
Sd/-
(M.Sasindran) Sr.Superintendent of Post Offices '
9. When he applied for the post of Postman in response to Annexure A-3 notification, he was working as GDS Mail Deliverer at Kureepuzha as per Annexure A-2 order. While working there he had filed O.A 51/02 wherein he could not find a favourable order. When he filed a writ petition 32024/04 the High Court directed the Chief Post Master General to give him regular appointment, if he is found honest and competent.
10. Thereafter when the post of GDS MD at Kureepuzha was notified by the respondents for filling up, the applicant filed O.A 684/09 to declare that he is entitled to be regularised as GDS MD. It was during the pendency of O.A 684/09, he obtained an interim order permitting him to take part in the Postman examination for the vacancy of 2009 which is the subject matter in this O.A.
11. As stated above, O.A 684/09 ended up in dismissal with certain observations that the applicant was misleading the Court by making false submissions. The relevant portion of the said order in Annexure A-4 dated 25.2.2010 is extracted below:-
'The Hon'ble High Court has upheld the aforesaid order vide its judgment in WPC No.32024 of 2004 (S) (supra) and allowed the respondents to hold the fresh appointment, if the Chief Postmaster General decides so. Now, after detailed examination of the case, the Postmaster General has decided to hold the regular selection. The attempt of the applicant is to mislead the Court by making false submissions. By obtaining stay from this Tribunal and filing Writ Petition against the order of this Tribunal, the applicant managed to stay as GDSMD at Kureepuzha Post Office for a fairly long period. The notification for making regular selection and appointment was well in accordance with the instructions regarding appointment to ED Posts and consonant with the principles of equality enshrined under Article 14 of the Constitution. The applicant who has not been selected in a due process has no right to say that he should not be displaced by a person selected in accordance with the law.
The Tribunal found that applicant has never been appointed on provisional basis and that:-
' There is no doubt that the applicant's appointment was through side door and it was in violation of Articles 14 and 16 of the constitution. The respondents was fully justified in their reliance to the judgment of the Constitution Bench of the Apex Court in Secretary, State of Karnataka vs. Umadevi (supra) wherein it has been held that an appointment through side-door would be violative of the constitutional scheme of equality contained in Articles 14 and 16 of the Constitution of India. '
12. When the aforesaid order was challenged by the applicant in WP(C) No.7760/2010 the Hon'ble High Court did not interfere with the ultimate decision in Annexure A-4 order but granted liberty to the applicant to move this Tribunal for review of Annexure A-4 order. Annexure A-6 Review Application was accordingly filed. While dismissing the review application this Tribunal observed :
'5. We did not find any error in fact or law on the face of the record in the order of this Tribunal dated 25.02.2010 in the OA No.684 of 2009. The applicant's appointment was through side door in as much as he was not sponsored by the employment exchange. But it is not the fault of the applicant. It was the duty of the respondents to make sure that no irregular appointment is made. There are judgments of the Hon'ble High Court of Kerala to the effect that merely because a candidate was not sponsored through the employment exchange he cannot be denied the benefit of preference in appointment in terms of DG Posts letter dated 18.05.1979. Therefore, it is just a mis-apprehension on the part of the applicant that his chance for appointment in future will be jeopardised by any observation made by this Tribunal in the impugned RA(I) order.
6. For want of good and sufficient reasons to review the decision of this Tribunal in O.A No.684 of 2009, this Review Application is dismissed with no order as to costs.'
13. Thereafter, he filed Original Application No.931/11 in which the respondents were directed to consider his posting on the strength of the aforesaid letters of the DG Posts. Accordingly, vide Annexure A-10 order dated 20.06.2013 applicant was posted as GDS BPM, Kura.
14. Annexure A-3 notification was for the conduct of examination for recruitment to the cadre of Postman/ Mail Guard for filling up the vacancies for the year 2009. The selection was based on 50% of the vacancies to be filled up by promotion of Group D officials who qualify in the examination and the remaining by direct recruitment. It was mentioned that under the direct recruitment quota one half of the vacancies shall be filled up from amongst the GDS with a minimum of 15 years of service. Upper age limit for the GDS was relaxable by 5 years for SC/ST candidates and such candidates should have been completed a minimum of 5 years satisfactory service as on 01.01.2009. It was also stated in the notification that there is no restriction on number of GDS under the 25% merit quota.
15. Annexure A-1 is the result of the departmental examination. In Annexure-
A/1 it is specifically noted against the applicant's name that he was treated as an outsider permitted to appear in the examination as per interim order in O.A 684/2009, which was later on dismissed by this Tribunal. According to respondents applicant cannot make any claim as an eligible GDS candidate for the post of Postman notified in Annexure A-3 notification simply because of the fact that he worked as GDS and remained posted for very long time as such in different stations on the strength of the orders of this Tribunal. They point out that when O.A 684/2009 was dismissed, this Tribunal had taken note that applicant was never appointed on provisional basis at Kureepuzha where he continued to be in service for nearly 10 years. During that period he had again filed O.A No.51/2002 which was followed by a writ petition WP(C) No.32024/2004 wherein the High Court directed the CPMG to give him regular appointment if found honest and competitive. It can be seen from the history of litigation undertaken by the applicant so far that he had continued in service as GDS on the strength of court orders; not on the basis of any regular selection. The latest appointment at Kura was again on the strength of the order of this Tribunal which was based on DG Post's letter issued in 1970s and 1980s. In our view all such appointments have to be treated as back-door/ side door appointments as the same had not undergone the regular process of appointment envisaged under the Constitutional scheme for public appointments. In the light of the law laid down by the Constitution Bench of the Supreme Court of India, we hold that it is high time for the department to recall or cancell the DG Post's letter Nos. 43-4/77Per dt. 18-5-1979 and 17-141/88-EDC&Trg dt. 06-6-1988. As these letters constitute the fountain head of the countless litigation faced by the department we order the respondents to do so forthwith.
16. In Secretary, State of Karnataka v. Uma Devi and Others (2006) 4 SCC1 the Apex Court abhorred back door appointments. The Apex Court held that merely because an employee had continued under the cover of an order of a court ( the apex court described such postings as 'litiguous employment') he would not be entitled to any right to be absorbed or made permanent in service.
17. The Apex Court observed :
' 43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued.
Similarly, a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of adhoc employees who by the very nature of their appointment, do not acquire any right. '
18. In the light of the exposition of Constitutional law in Umadevi decision, we have no hesitation to come to the conclusion that respondents were justified in treating the applicant not as a regularly engaged GDS but only as an outsider in the competitive examination held for the post of Postman for the vacancy of 2009. Going by the principles that can be gleaned from Uma Devi judgement, the applicant cannot be treated as a GDS who have been selected after a proper competition among the qualified persons and hence the employment of the applicant so far enjoyed would not confer any right on him. We are unable to take a different view even on sympathetic grounds in view of the expressed law laid down by the sufficient bench of the Apex Court in Uma Devi. and we consider that if we give any concession to the applicant that would be in violation of the law laid down by the Apex Court.
19. Considering the law, facts and circumstances of this case, we dismiss the Original Application. No order as to costs.
(P.GOPINATH) (U.SARATHCHANDRAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER sv