Central Administrative Tribunal - Ernakulam
Lalji P vs The Chief Post Master General Kerala ... on 9 February, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00807/2019
Thursday, this the 9th day of February, 2023
CORAM:
Hon'ble Mr. Justice K. Haripal, Judicial Member
Hon'ble Mr. K. V. Eapen, Administrative Member
Lalji P, aged 44 years,
S/o. Prabhakaran, Padinjarekara,
Thiruvampady PO,
Kuthirappanthy Ward,
Alapuzha - 688 002. - Applicant
(By Advocate: Mr. Kaleeswaran Raj)
VERSUS
1. Chief Post Master General,
Kerala Circle Office, PMG Junction,
Thiruvananthapuram, Kerala - 695 033.
2. Assistant Superintendent of Posts,
Alleppey Sub Division,
Department of Posts,
Kerala Circle, Alappuzha,
Kerala - 688 011.
3. Union of India, represented by the
Secretary, Government of India,
Ministry of Communications & IT,
Department of Posts,
New Delhi - 110 116. - Respondents
(By Advocate: Mr. M. K. Padmanabhan Nair, ACGSC)
This Original Application having been heard on 22nd November 2022,
the Tribunal on 9th February, 2023 delivered the following :
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ORDER
Justice K. Haripal, Judicial Member Applicant is a Gramin Dak Sevak (GDS) Mail Deliverer at Thiruvampady Junction Post Office in Alappuzha Sub-Division. He claims that he is working as such for the last 10 years. While so, the first respondent had issued a notification for recruitment of GDS, vide notification No. Rectt/50-1/DLG/2016-17 on behalf of the second respondent. The post held by the applicant is also included among the posts notified for appointment, as provided under the Gramin Dak Sevaks (Conduct & Engagement) Rules, 2011. According to the applicant, 'Rule 8 of the Rules insists that a GDS shall only be terminated from Service if he has rendered more than three years' of continuous service'. As the applicant has already put in more than 10 years of service, he is not liable to be terminated. After the issue of the notification, under the threat of termination, on 24.04.2018 he filed OA 383/2018 before this Tribunal and obtained an interim order, Annexure A1, to the effect that he shall not be terminated till a regular hand is posted. However, on 23.06.2018 he was terminated stating that a regular hand is appointed in the place of the applicant. Aggrieved by the same he filed Annexure A2 representation. Thereafter O.A 383/2018 was disposed of by this Tribunal by Annexure A3 order directing to consider and dispose of his representation by a speaking order within 30 days from the date of receipt of the order. However, by -3- Annexure A4 order that representation stands rejected; aggrieved by the same he has approached this Tribunal seeking a declaration that he is entitled to be re-engaged as Gramin Dak Sevak and that he is not liable to be replaced by continuous temporary hand and for a direction to the respondents to re-engage the applicant as Gramin Dak Sevak in the office of the 2nd respondent in any of the vacancies available in Alappuzha district.
2. According to the applicant the Annexure A4 is unjust, illegal and arbitrary. He understands that now the respondents have issued fresh notification for recruiting a new batch of temporary hands. In other words, they want to terminate the applicant who is a temporary hand and replace him with a new batch of temporary hands which is illegal and against the dictum in State of Harayana and Ors v Piara Singh and Ors [(1992) 4 SCC 118], Barinder Kaur v Gurunanak Dev University and Ors CWP No. 6377/2014 and Dr. Pramod Anandrao Pathre v State of Maharashtra [(2007) 109 Bom L R 962]. He has also relied on Annexure A6 and A7 judgments of the Hon'ble High Court in Writ Appeal No.1417 of 2017 and Writ Appeal No. 863 of 2018; a set of temporary hands can not be replaced by another set of temporary hands. It is illegal. Hence, he has sought the reliefs, as aforestated.
3. The respondents filed reply statement denying the contentions of the applicant. According to them, the claim of the applicant that he is in employment for the last more than 10 years is untrue. He was engaged for -4- the first time only on 01.06.2016 when the regular incumbent in the post Smt. R. Sujatha was discharged from engagement on 31.05.2016 on attaining the age of 65 years. In order to manage the work of the post, a stop-gap arrangement was made from 01.06.2016. According to the respondents, the applicant is an outsider engaged to manage the work purely on stop-gap arrangement, since the process of regular engagement was under progress through online process centrally by the Chief Postmaster General. Referring to Annexures R1(a) to R1(l) he said that the applicant and one K. A Menilas were alternatively engaged for 61/62 days, as shown in paragraph 3(2) of the reply statement. While so the process of selecting provisional candidates had commenced by the Chief Postmaster General, the competent authority by notification dated 11.01.2017. Following that process one Vindhya V was called for verification of documents and cycling test; when qualified she was appointed in the place of the applicant. Referring to Annexure A1 order, it was pointed out that there was an interim order not to terminate the service of the applicant to the post of GDSMD till a regular hand is appointed. As a regular hand was appointed and since the said Vidhya had taken charge, he was terminated. It is further stated that his appointment was purely on stop-gap arrangement and that he has no right to be considered for posting. -5-
4. According to the respondents Annexure A2 representation was properly considered and by Annexure A4 order it was rejected taking into account all the facts and circumstances of the case. As stated in Annexure A4, the post of Gramin Dak Sevak Mail Packer in Pazhaveedu Sub Post Office was filled by appointing one M. Suresh so that there was no vacancy. Similarly, the process of engaging an outsider in the post of Mail Packer in Alappuzha District Hospital Sub Post Office is under way. Regarding the other two posts in the Railway Mail Service, the 2 nd respondent is not the competent authority and thus Annexure A4 order was passed on correct facts and circumstances of the case. It is reiterated that the applicant does not have any legitimate right to claim the post. Vacancies in the post of Dak Sevak are filled up following Rules 3-A and 3-B of the Gramin Dak Sevak (Conduct & Engagement) Rules, 2020. Rule 8 of the Rules is not applicable to the facts of the case. In a similar case, in O.A 941/2010 this Tribunal had rejected such a claim. Moreover, OP(CAT) filed against the said order was dismissed by the Hon'ble High Court in Annexure R5 judgment. It is further stated, referring to Annexure R6 that a substitute appointed in a Post Office has no legal claim; merely on the basis of the fact that he has been working for long, continuously, he cannot stake claim over the post. Therefore the application is sought to be dismissed.
5. We heard the learned Counsel on both sides. Learned Counsel for the applicant submitted that services of the applicant was terminated in -6- violation of Rule 8 of the Rules, the points urged in Annexure A4 order of the 2nd Respondent are also against facts. Even though it is stated that there is no vacancy, Annexure A5 notification indicates that the respondents have notified for 2086 vacancies of Gramin Dak Sevaks. Since the applicant has put in more than 10 years as GDS, he is not liable to be terminated. The learned Counsel also pointed out that the applicant is aged about 43 years and there is no chance for him to get another employment, the family is eking out their livelihood from the income of the applicant.
6. On the other hand, according to learned Standing Counsel there is absolutely nothing to say that he has been engaged continuously for 10 years. Referring to Annexure R1 series documents he pointed out that he was engaged only from 01.06.2016 onwards. He was never given employment for more than 61 days at a stretch, for giving a break, another person was appointed; for the reason that he was engaged for a certain spells of service, he cannot claim continuous employment. He is not entitled to get the benefit under Rule 8 of the Rules. He also took us through Annexure R5 and R6 verdicts of the High Court and that of this Tribunal.
7. After going through the materials made available before us and also having regard to the law governing the subject, we have no doubt that the applicant does not have a case in his favour. Even though he asserted that he has more than 10 years service as Gramin Dak Sevak, supporting -7- materials are not made available before the Tribunal. On the other hand, respondents have contended that he was first engaged only on 01.06.2016 after the discharge of the incumbent Smt. R. Sujatha on attaining age of retirement. Thus, he was engaged for a spell of 61 days from 01.06.2016 to 31.07.2016. Referring to Annexure R1(a), R1(c), R1(e), R1(g), R1(i) and R1(k) it was pointed out that he was engaged for a period of maximum 61 days at a stretch. Annexure R1 series documents support the arguments of the respondents which indicate that he was appointed in the said Post Office as stop-gap arrangement only.
8. Annexure R1 series clearly indicate that the 2 nd respondent had made stop-gap arrangements and engaged the applicant and the said K. A. Menilas for definite period of time. Terms of Annexure R1 series engaging the applicant clearly indicate that he was appointed on stop-gap arrangement to the post to look after the work for a definite period of time or till provisional/regular appointment is made whichever period is shorter. Again, it is stated that he has been offered as stop-gap arrangement to the said post. He has been clearly reminded that he should understand that his appointment in stop-gap arrangement is purely temporary and on contract basis and is liable to be terminated by the appointing authority at any time without notice and without assigning any reasons and that he is required to hand over the charge to the provisionally/regularly selected candidates if he/she is not selected later.
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9. That means, there are only bland statements by the applicant that he was in service for 10 years. The applicant also did not file any rejoinder after the contra statements denying the claim. Documents produced by the respondents also indicate that even a stop-gap arrangement was done through records. In the circumstance, non production of any supporting material by the applicant is a matter of adverse inference.
10. From Annexure R1 series it is patent that his appointment to the present post had commenced only on 01.06.2016 till 31.07.2016. In other words, he was engaged by the respondents in six spells, that is for the period from 01.06.2016 to 31.07.2016 (R1(a)), 01.10.2016 to 30.11.2016(R1(c)), 01.02.2017 to 31.03.2017 (R1(e)), 01.06.2017 to 31.07.2017 (R1(g)), 01.10.2017 to 30.11.2017 (R1(i)) and from 01.02.2018 to 31.03.2018 (R1(k)). It was after the expiry of the last spell that he had approached this Tribunal with O.A 383/2018 and obtained an interim order as Annexure A1 on 25.04.2018. In that order, this Tribunal restrained the respondents from 'terminating him till a regular hand is appointed'. Thereafter on informing that the said Vidhya was appointed as a provisional employee, he was terminated and then, noticing that he had filed Annexure A2 representation, the O.A was disposed of directing to consider and pass a speaking order on the same. Later by Annexure A4 order the representation was rejected and that made him to approach this Tribunal once again. In -9- Annexure A4 it is clearly stated that he was appointed purely on temporary basis as a stop-gap arrangement to maintain the services offered by the Department. He was reminded that he cannot claim regular engagement. When a regular incumbent joined duty on 25.06.2018 his service had to be terminated and that was why he was terminated from service. Regarding the vacancies mentioned in Annexure A2 also, it was said that there is no such vacancy in Pazhaveedu and that steps have been initiated for filling up of the vacancy in District Hospital Post Office and that the reported vacancies in RMS are not within the domain of the 2 nd respondent. That is the substance of Annexure A4.
11. We are unable to comprehend as to what is there in Annexure A4 to be found fault with. The applicant could not have been appointed since he was engaged purely on stop-gap arrangement. He was not even a substitute and therefore the applicant does not have a prima facie case to claim the post.
12. Annexure A5 is only a news item that has been published by Malayalam Manorama pursuant to the notification issued by the Postal Telegraph Department notifying 2086 vacancies of Gramin Dak Sevaks. Following the notification, documents produced by the respondents indicate that steps were taken and one Vidhya who was qualified was selected and provisionally engaged on 25.06.2018 so that the respondents had no other option but to terminate the services of a person engaged as -10- stop-gap measure. As stated earlier, terms of engagement as a stop-gap arrangement in Annexure R1 series is very clear like daylight. The applicant cannot be heard to say that he has right to continue in service.
13. Even otherwise, after all what is the status of the applicant? He is not a regular employee, not a provisional employee, he is not even a substitute. Therefore he cannot claim for engagement on a continuous basis. His engagement was purely a stop-gap arrangement to fill the exigencies of service owing to the retirement of the incumbent and he was given prior notice that he is liable to be terminated on regular employee joins duty. The said Vidhya had joined duty on 25.06.2018, so that the respondents had no other option but to terminate his service. That has been done. Annexure A1 order is cautiously worded one where, the Tribunal had understood the status of the applicant and that was why interim order was granted against termination of the applicant till the appointment of a regular hand.
14. There is absolutely no basis in raising any claim based on Rule 8 of the Gramin Dak Sevak (Conduct & Engagement) Rules; whether it is 2011 Rules or 2021 Rules, Rule 8 is the same. Rule 8 (1) reads thus:
"The engagement of a Sevak who has not already rendered more than three years' continuous service from the date of his engagement shall be liable to be terminated at any time by a notice in writing given either by the Sevak to the Recruiting Authority or by the Recruiting Authority to the Sevak"-11-
Here the applicant though claimed that he has put in more than 10 years service, that has absolutely no basis. On the other hand, Annexure R1 series clearly indicate that he had been engaged as stop-gap measure only from 01.06.2016 onwards, his engagement was intermittent for only 61 or 62 days, after the said period, he had to give way to another person by name K. A. Menilas who was engaged for the next 61 or 62 days. In other words, applicant and the said K. A. Menilas were appointed alternatively for 61, 62 or 59 days as the case may be, and his service had never been continuous beyond 61 days at a stretch. As noticed earlier, no material is forthcoming to say that he was ever engaged by the respondents prior to 01.06.2016, as claimed by him.
15. Rules indicate that the appointment of Gramin Dak Sevak is guided by Rule 3-A of the Rules. It is done by inviting online applications; persons having qualifications within the age limit can apply online and the appointment is done as laid down, following the procedures. The applicant has never undergone such procedure. At the risk of repetition, it is to be stated that he is not even a substitute but was appointed only on a temporary basis, as a stop-gap arrangement and therefore he does not have any vested right to be in engagement over and above the regular appointees, provisional appointees or even a substitute.
16. A review of the standing instructions indicate that where provisional appointment becomes unavoidable, action has to be initiated to -12- 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 take a period of not exceeding 60-90 days, stop-gap arrangement may preferably be made. Paragraph 10 of the standing instructions available in Swami Compilation at page 82 of 2021 Rules reads thus:-
"10. Where provisional appointment becomes unavoidable, action may be initiated to fill up 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 a 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 needs to be continued beyond 90 days, approval of the next higher authority is to be taken on a one time basis for reasons to be recorded in writing."
17. From the above and other standing instructions it is clear that there are different categories of GDS. Firstly, those who are regularly appointed, secondly a substitute, who is engaged by the GDS himself whenever he proceeds on temporary leave and thirdly, provisional appointment. As indicated earlier even for provisional appointment the -13- cumbersome procedure of appointing regular hands has to be followed by the competent authority. In other words, a local stop-gap arrangement can be made as a last resort, that too only for a maximum period of 90 days. Here Annexure R1 series indicate that such a stop-gap arrangement was being made and the applicant was never appointed for more than 61 days at a stretch.
18. The applicant was an outsider. Regarding this in Annexure R5 paragraph 14, the Hon'ble High Court has observed as follows:
"A provisional hand who is regularly selected and appointed, only can have a claim for continuance, that too if he/she continued uninterruptedly for three years. This provision is made only since such provisional hands are appointed in place of persons who are "put off" in a sense of any disciplinary/judicial proceeding pending against them. These proceedings could extend beyond a period of time and hence any person continued in such a vacancy would get a right for re-employment if continuously employed for three years. This is again only a provision for re-employment and not regularisation. When provisional hands are appointed to a vacancy pending regular appointment, the provisional hand who has a continuous service acquires a claim to be considered. This benefit is conferred on a regularly selected provisional hand and cannot be conceded to an outsider/substitute whose method of appointment and terms of engagement drastically differ from that of a provisional hand."
This being the position the applicant is not entitled to get any relief.
19. We do not have slightest doubt in our mind that it is illegal to replace a set of temporary hands by another set of temporary hands. Here the status of the applicant is that of an outsider engaged to fill a -14- contingency, as a stop gap measure whereas the said Vidhya, though a provisionally appointed person, came out clearing the standard procedures laid down by the department. When such a person awaits appointment, a stop-gap appointee cannot cling on, and must give way.
20. To sum up, the claim of the applicant that he had been engaged for more than 10 years is baseless and not supported by materials on record. On the other hand, Annexure R1 series indicate that he had been engaged from 01.06.2016 only for six different spells of time and thereafter he continued his engagement on the basis of the interim order obtained from this Tribunal. But when provisional hand joined duty he had to give way and thus his engagement was terminated and that was how he approached this Tribunal, after his representation was rejected.
21. In this connection, it is apposite to notice certain observations made by the Hon'ble Supreme Court in State of Karnataka and Ors v Umadevi and Ors [(2006) 4 SCC 1] where the Hon'ble Supreme Court has deprecated the tendency of temporary employees who came through backdoor or on daily wages approaching courts seeking directions to make them permanent in their posts and to prevent regular recruitment to the posts. The Supreme Court has called them as 'litigious employment'. According to Supreme Court, such a class of employment will seriously impair the constitutional scheme, that courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons -15- and from issuing directions for continuance of those who have not secured regular engagements as per procedure established, that methods adopted by such persons will defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognised by our Constitution. Here the applicant has made untrue claims, he was not even a substitute but was appointed only on stop-gap measure to fill in the exigencies of time.
22. The O.A is bereft of merits and is dismissed. We make no order as to costs.
(Dated this the 9th day of February, 2023)
K. V. Eapen Justice K Haripal
(Administrative Member) (Judicial Member)
bp
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List of Annexures
Annexure A1- True copy of the interim order dated 25.04.2018 in O.A
No.383/2018.
Annexure A2- True copy of the representation dated 25.09.2018
submitted by the applicant before the 2nd respondent. Annexure A3- True copy of the order dated 04.07.2019 in O.A No.383/2018.
Annexure A4- True copy of the order No.GL/GDS/Misc dated 01.08.2019 issued by the 2nd respondent.
Annexure A5- True copy of the relevant page of 'Malayala Manorama' newspaper daily dated 14.08.2019 along with English translation. Annexure A6- True copy of the interim order dated 01.11.2017 in W.A No.1417/2017.
Annexure A7- True copy of the judgment dated 13.04.2018 in W.A No.863/2018.
Annexure R1(a) to R1(l)- A true copy of the stop gap arrangement orders with acquittance of the outsiders.
Annexure R2- A true copy of proceeding of verification of documents and the cycling test.
Annexure R3- A true copy of Memo No.GDSMD/Thiruvambady Junction dated 02.05.2018.
Annexure R4- A true copy of the Memo No.GDSMD/Thiruvambady Junction dated 18.06.2018.
Annexure R5- A true copy of judgment dated 30.10.2019 in OP(CAT) 75/2018.
Annexure R6- A true copy of order dated 20.07.2017 of the Hon'ble CAT in O.A No.224/2015 filed by P.K Sajeev.
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