Central Administrative Tribunal - Bangalore
Praveen Kumar V vs D/O Post on 10 March, 2023
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OA.No.170/323/2021/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00323/2021
DATED THIS THE 10TH DAY OF MARCH, 2023
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
Praveen Kumar. V,
S/o Venkataramanaiah,
Aged about 30 years,
Residing at K-1, Postal Staff Quarters,
Udayagiri-570 019, Mysuru District.
Working as Postman, Head Post Office,
Mysore H.O, Mysuru-570 001. ..Applicant.
(By Advocate Shri B.S. Venkatesh Kumar)
Vs.
1. The Sr. Superintendent of Post Offices,
Mysore Division, Mysore -570 020.
2. The Postmaster General,
S.K. Region, II Floor,
GPO Building, Bangalore -560 001.
3. The Chief Postmaster General,
Karnataka Circle,
Palace Road, Bangalore -560 001.
4.The Union of India,
Rep. by its Secretary,
Department of Posts,
Ministry of Communication and IT,
Dak Bhavan, Sansad Marg,
New Delhi-110001. ....Respondents
(By Shri S. Prakash Shetty, Sr. Panel Counsel)
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OA.No.170/323/2021/CAT/Bangalore Bench
O R D E R (ORAL)
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
a) To quash and set aside the impugned letter No.B1/GDS to PA/2020/Dlgs dated 25.5.2021 (Annexure A-6) by the 1st Respondent, vide which the representation dated 16.3.2021 made by the applicant has been disposed of and candidature of the applicant towards LDC examination to GDS for recruitment to the cadre of PA/SA stands cancelled.
b) To direct the respondents to regularize the candidature of the applicant for recruitment to the cadre of PA/SA through competitive examination held on 20.12.2020.
c) To pass any other order or direction or any relief as deemed fit by this Tribunal, in the interest of justice, equity and fair play in administration.
2. The applicant had made an interim prayer to direct the respondents to issue the hall permit to the applicant to appear in the DEST(Data Entry Skill Test) for recruitment to the cadre of PA/SA), scheduled to be held on 24.06.2021. This Tribunal vide its order dated 23.6.2021 while issuing notices to the respondents to show cause why the OA be not admitted for hearing, had ordered, as an interim measure, that the applicant shall be permitted to appear in the Data Entry Skill Test scheduled to be held on 24.6.2021. It was 3 OA.No.170/323/2021/CAT/Bangalore Bench further directed that the applicant's result shall be kept in a sealed cover during the pendency of the present OA.
3. The facts of the case as pleaded by the applicant in his pleadings, are as follows:
a) The applicant belongs to scheduled caste and he was initially selected and appointed as GDS MP, NSH, Mysuru on 07.10.2013 and promoted to the cadre of Postman with effect from 20.05.2020 and posted to NSH, Mysuru and now transferred to Mysuru H.O. The Postal Assistant is one of the promotional avenues for the applicant.
b) The 3rd respondent issued notification vide No.R&E/1-12/GDS/2020 dated 09.11.2020 (Annexure A-1) to recruit against the unfilled vacancies in the cadre of Postal Assistant/Sorting Assistant for the vacancy year 2020 (01.01.2020 to 31.12.2020) from Gramin Dak Sevaks (GDSs) and Postman/Mail Guard/Dispatch Rider/MTS through Limited Department Competitive examination and fixed the date of examination as 20.12.2020.
c) As the applicant fulfilled all the eligible criteria as fixed by the 3rd respondent in the notification at Annexure A-1, he applied for the said examination by application dated 25.11.2020 (Annexure A-2) and the 4th respondent issued the hall permit on 18.12.2020 (Annexure A-3).
Accordingly the applicant appeared in the examination held on 20.12.2020 and qualified in the said test and was expecting that he 4 OA.No.170/323/2021/CAT/Bangalore Bench would be called for Data Entry Skill Test (DEST), which is the final stage of the recruitment process.
d) The 1st respondent vide Memo No.B1/GDS to PA/2020/Dlgs dated 11.01.2021 (Annexure A-4) cancelled the candidature of the applicant. The applicant preferred a detailed appeal dated 16.3.2021 to the 3rd respondent.
e) The 1st respondent vide letter No.B1/GDS to PA/2020/Digs dated 25.05.2021(Annexure A-6) based on 2nd respondent's letter No.SK/R&E/1-12/LGO-GDS/2020/1 dated 20.05.2021, again confirmed the earlier order of cancellation of candidature of the applicant for the examination.
f) The 1st respondent cancelled the candidature of the applicant based on the instructions of the 2nd respondent, but the 3rd respondent by considering the representation of the applicant dated 16.03.2021 declared that the applicant is eligible for DEST by letter No.R&E/1- 12/GDS/2020/CON dated O8.06.2021, wherein the 3rd respondent decided to conduct Data Entry Skill Test(DEST) in respect of qualified candidates of examination for recruitment to the cadre of PA/SA held on 20.12.2020 and fixed the date of DEST as 20.06.202. The candidature of the applicant was considered as eligible for the said DEST and his name is figured at Sl No.151 with Hall permit Number 2015722020. He was the topper in the merit list for Mysuru Division in the main examination. The 2nd respondent did not forward the 5 OA.No.170/323/2021/CAT/Bangalore Bench representation of the applicant dated 16.03.2021 (Annexure A-5) to the 3rd respondent for disposal of the representation, instead based on the earlier order of the 3rd respondent, which was conveyed by the 1st respondent vide letter dated 11.01.2021(Annexure A-4) has confirmed the cancellation of the candidature of the applicant.
g) The applicant through his service association, has learnt that the 3rd respondent based on the advance copy of request of the applicant dated 16.03.2021 (Annexure A-5) has considered the request of the applicant and has allowed the candidature of the applicant for Competitive Examination and considered eligible for DEST
h) The DEST has been postponed from 20.06.2021 to 24.06.2021 and the applicant was waiting for hall permit to be issued from 1st respondent, but the 1st respondent issued hall permits to other candidates but denied to the applicant, which prevented the applicant from appearing to DEST, even though the candidature of the applicant has been regularized by the 3rd respondent, competent authority.
i) The 1st respondent has issued the hall permit for the under mentioned officials who are also similarly situated like the applicant, which prima- facie indicates that the 1st respondent is discriminating the applicant for the reasons best known to him.
Sl.No Roll No. Name of the official Designation Office of working 01 2015724022 Chaithra.K MTS Yadavagiri, Mysuru 02 2015722023 Karaiah Postman Mysuru South S.O. 6 OA.No.170/323/2021/CAT/Bangalore Bench 03 2015724024 Mahadeva Postman Lakshmipuram S.O, Mysuru 04 2015724026 Girisha. C MTS P.T.C, Mysuru
4. The respondents have filed their written statement wherein they have averred as follows:
a) The applicant submitted his application dated 25.11.2020 in response to notification for Competitive Examination for recruitment to the cadre of Postal Assistant/ Sorting Assistant for unfilled vacancies of LDCE meant for Postmen/Mail Guard/Despatch Rider/MTS for the vacancy year 2020 (01.01.2020 to 31.12.2020). Vide his application dated 25.11.2020, the said official applied to the said Examination as a Gramin Dak Sevak (GDS) through Manager, NSH, Mysuru and copy of the same is produced as Annexure A-2 of OA. In the application, the applicant has wrongly mentioned his designation against Col No. 3 as DAK SEVAK instead of Postman.
b) He was allowed to appear in the said examination as DAK SEVAK under SC category held on 20.12.2020 under Roll No. 2015722020.
Immediately after coming to know about his concealing the fact, the same was brought to the notice of Respondent-2 vide Respondent - 1 office letter No. B1/GDS to PA/2020/DIgs dated 28.12.2020 for cancellation of his candidature, as he acted in contravention of his own declaration in Annexure A-2 of OA, which clearly stipulates that, I hereby declare that the particulars furnished in the application form 7 OA.No.170/323/2021/CAT/Bangalore Bench are true, complete and correct to the best of my knowledge and belief and will be supported by the original documents as and when required. I fully understand that in case of false/incorrect information found at any stage, my candidature/appointment will be summarily rejected/terminated and appropriate action would be taken against me.
c) Respondent-2 vide letter No. SK/R&E/1-12/LGO-GDS/2020 dated 01.01.2021 conveyed permission of the Competent Authority to cancel the candidature of the said official in the said examination. Accordingly, his candidature was cancelled vide memo No. B1/GDS to PA/2020/Dlgs dated 11.01.2021. The Applicant submitted another representation addressed to Respondent- 3 requesting him to appear in Data Entry Skill Test claiming his marks in the examination to be 65, his working as Gramin Dak Sevak as on 01.01.2020, & holding a lien on GDS post till he is not confirmed in the cadre of Postmen in which he is working since 20.05.2020, citing the provisions of FR 12 &14/Postmen-Mailguard Examination Recruitment Rules 2018. The said representation of the official was disposed by RO vide letter no.SK/R&E/1-12/LGO-GDS/2020/1 dated 20.05.2021 citing directions of Circle Office in taking necessary action in the light of disposing the same as per para No 4(f) of Directorate letter No. 04- 08/2019-SPN-I dated 06.09.2019. The said official was addressed vide letter No. B1/GDS to PA/2020/Dlgs dated 25.05.2021 wherein cancellation of his candidature to the said Competitive Examination was reiterated, citing the Directorate reference. 8
OA.No.170/323/2021/CAT/Bangalore Bench
d) Respondent-2 (R&E Section) vide eMail dated 18.06.2021 communicated the schedule of Data Entry Skill Test & Annexures I & II containing the details of unfilled vacancies to be offered to GDS & list of qualified SC & ST candidates in the Competitive Examination for recruitment to the cadre of PA/SA held on 20.12.2020 for the vacancy year 2020. The name of the said official Sri Praveen Kumar V was shown as Qualified at SL No. 151 against SC category. This was noticed immediately and Circle Office was informed for deletion of his name in the list of qualified candidates, in addition to a written communication to CO by RO vide letter No. SK/R&E/1-12/LGO- GDS/2020/II dated 21.06.2021. Accordingly, his candidature was not allowed to the Data Entry Skilled Test & hall permit was not issued.
e) Aggrieved by this, the applicant approached CAT, Bengaluru Bench in connection with permitting him to appear in the Data Entry Skill Test (DEST) claiming inclusion of his name in the list of qualified candidates in the above said Annexure issued by CO vide letter No. R&E/1-12/GDS/2020/CON dated 08.06.2021. This Tribunal vide Orders dated 23.06.2021 ordered to allow the said official to appear in the Data Entry Skill Test as an interim measure. Accordingly, he was allowed provisionally to the said test held on 24.06.2021.
f) Applicant claims that he fulfilled all eligibility criterion as fixed by the 3rd respondent. This is wrong since, as a postman he was eligible to appear for PA exam only after completion of three years of service in postman cadre. He was appointed as a postman w.e.f. 20.05.2020 and 9 OA.No.170/323/2021/CAT/Bangalore Bench eligible to appear for PA exam only after completing three years of service. He wrongly declared his cadre as DAK SEVAK in the application and managed to appear for the written examination grabbing the opportunities of other candidates also. Thus, he misled the department by giving wrong information in contravention of his own declaration in the application.
5. In the rejoinder to the reply, the applicant has pleaded as follows:
a) A perusal of copy of application dated 25.1.2020 (Annexure RJ-1) obtained under RTI Act, reveals the relevant portion of the column 3 of the said application as below:
3 Category (BPM/ABPM/DAK SEVAK) DAK SEVAK
b) A perusal of the column 3 of the application clearly reveals that, nowhere was it mandated to mention the current designation, it is the column which mandates to furnish the category under which the candidate is applying for the competitive examination. Since the applicant was GDS as on the crucial date, he has rightly and fairly mentioned that he was applying under the category of DAK SEVAK.
As such the question of furnishing his current designation as Postman doesn't arise.
c) The 1st respondent has endorsed and recommended the candidature of the applicant in his own handwriting and also issued certificate that he 10 OA.No.170/323/2021/CAT/Bangalore Bench had verified the particulars of applicant from service record. Therefore, it is clear that the applicant has not acted in contravention of his own declaration. Further, the certificate was given by the 1st respondent who is not only the appointing authority, but a responsible officer in the cadre of Senior Time Scale at Pay matrix level-11. As such, when the appointing authority himself admits that he has recommended the candidature of the applicant after certifying that he has verified the particulars of the applicant from his service record, the respondents could not have made such an allegation against the applicant.
d) The applicant contends that though he is working as Postman, but as per the Department of Posts, Postman and Mail Guard (Group C' post) Recruitment Rules, 2018, there is probationary period of two years for Postman cadre and until completion of probationary period his lien will be in the feeder cadre that is in GDS cadre as per FR-13 & O.M.No.28020/2/2018-Estt. (C) dated 27.08.2018 of DOPT. As such the applicant is eligible for appearing in Competitive examination held on 20.12.2020 to the cadre of Postal/Sorting Assistant under GDS quota.
e) The Hon'ble High Court in Writ Petition No.15249/2020 (S-CAT) titled Smt. Kavtha M. versus SSP Mysuru Division and others, vide its order dated 27.7.2021 had observed as follows:
"8. In the considered opinion of this Court, once she is holding a lien in Mysuru Division on the post of Postman, she is certainly entitled 11 OA.No.170/323/2021/CAT/Bangalore Bench to appear in the Limited Departmental Competitive Examination. She is at present on probation holding a lien against the post of Postman. Therefore, the Tribunal has certainly erred in law and in facts keeping in view the recruitment Rules in not permitting her to appear in the Limited Departmental Competitive to Examination."
f) In the present case also the applicant is on probation period for 2 years in Postman cadre and certainly holding a lien against the post of GDS.
6. Heard learned counsels for the parties and perused the pleadings made by them.
7. In the present case, the applicant had sought a direction to be permitted to appear in the LDCE held for recruitment for Postal Assistant/Sorting Assistant from GDS for the vacancy year 2020. The applicant was a GDS prior to being appointed as Postman w.e.f. 20.5.2020. Applications had been invited for appearing for the LDCE, which was to be held on 20.12.2020 from GDS cadre only. The applicant at the time of applying for the LDCE, was holding the post of Postman.
8. The contention of the applicant is that he was working as a GDS on 1st day of January, 2020. The year for which the vacancies had been advertised by the department was admittedly 2020 only. The crucial date for determining the minimum regular service as a GDS for eligibility to apply for the post was 1st January 2020. On that crucial date, the applicant was eligible, since he had put in minimum 5 years of service as a GDS on 1st day of January of the year for which the vacancies had been notified and applications invited. 12
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9. The applicant has further claimed that since he was on probation for 2 years in the Postman cadre he was certainly holding a lien against the post of GDS. He has also stated he had not made any fraudulent declaration. He had only indicated the category under which he was applying for the competitive examination. He has contended that nowhere was it mandated to mention the current designation of the applicant. The column mandates to furnish the category under which the candidate is applying. Since the applicant was GDS as on the crucial date, he has rightly and fairly mentioned that he was applying under the category of Dak Sevak only.
10. The contention of the respondents is that he was not a GDS at the time of applying for the LDC examination. Accordingly, he was not eligible to appear for the examination. Further, according to the respondents, he had fraudulently claimed his category as Dak Sevak in his application form on 25.11.2020 in order to declare himself eligible for appearing in the LDCE.
11. The main controversy in the present case is whether the applicant, who was appointed as Postman on 20.05.2020, and who was a GDS on the crucial date (1.1.2020) prescribed for determining eligibility, is to be considered as eligible for appearing for the LDCE for the vacancy year of 2020 or not.
12. This issue is no more res-integra. In a similar matter, titled S.R. Telagade vs. Union of India, in OA.No.967/2019 this Tribunal vide its order dated 08.09.2022 has held as follows:
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19."The respondents denied him the opportunity to appear in this examination held in 2019 on the ground that at the time of holding the examination i.e. in 2019, he was already working as a Postman.
20. On careful consideration, this contention of the respondents that, since, he was not a GDS at the time of applying for the said examination, he cannot be allowed to appear in the examination cannot be countenanced. The crucial dates for determining eligibility to participate in the selection process had already been prescribed in the notification inviting applications for the LDCE.
The prescribed crucial dates for determining eligibility for these posts were different for the vacancies of different years and were prescribed as 01.4.2015, 01.4.2016, 01.04.2017, etc. to appear for the LDCE to fill up the vacancies for the relevant years. The Recruitment Rules also clearly specify that these unfilled vacancies are to be filled up through Direct recruitment of Gramin Dak Sevaks of the recruiting division or unit as on the 1st day of April of the year to which the vacancy pertains to.
21.Although the examination for all these vacancies was being held in the year 2019, separate crucial dates for determining eligibility were prescribed in consonance of the Recruitment Rules. This implied that the status of the candidates had to be determined as on these crucial dates and not in the year 2019. Hence, if the candidate was serving as a GDS employee on these crucial dates and had already completed the minimum required 5 years of service as a GDS, he should have been considered to be eligible to compete for the vacancies available for the relevant years as notified. In fact, the competent authority had initially allowed such candidates who were eligible as GDS employees on the respective crucial date of eligibility to compete in the examination. However, this was subsequently withdrawn by them without assigning any reason for the same.
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22. The contention of the respondents that allowing the applicant to appear in the LDCE would affect the promotion prospects of the existing GDS staff is arbitrary and cannot be accepted. This is competitive examination and there is no justification for the department to deny an opportunity to the applicant to compete on merits since he was otherwise eligible to compete for the vacancies on the crucial dates as prescribed by the respondents. This denial would also result in a situation where the existing GDS employees who would be junior to the applicants would be getting an opportunity to be appointed as a PA/SA while denying a similar opportunity to the applicants.
23.As is evident from the documents submitted by the applicant, in the subsequent examinations held on 20.12.2020,10.1.2021 and 11.10.2020 for selection to the post of PA/SA, PM/MG and MTS respectively, the respondents had ordered to release the results of those candidates which were kept in sealed cover and who were otherwise eligible to the said examination and the candidates were considered for selection to the cadre of PM/MG in the case of candidates who had already been selected and joined as MTS earlier or those who had joined as Postman/Mail Guard based on the results of the LDCE for the recruitment to the cadre of PM/MG held on 10.1.2021. Such candidates were allowed to make a written request for reversion from MTS or PM/MG cadre to GDS cadre with the condition that after reversion, such GDS shall forfeit all rights that would have accrued had he/she continued in the aforesaid post in the Regular Establishment. Accordingly, an undertaking from the GDS candidate was also obtained that he/she will not claim any rights to the post of MTS or Postman/Mail Guard in future based on the above exam results. A separate undertaking was also directed to be taken from them that they will forgo the service rendered in MTS or PM/MG cadre and will not claim any benefits for the services rendered in MTS or PM/MG cadre i.e. uniform Allowance, 15 OA.No.170/323/2021/CAT/Bangalore Bench Increment, Bonus, TA/TP etc. It was also specified that they will also not claim MACP from the date of joining in the lower cadre in future.
24. In the present case, the applicant vide interim orders issued by this Tribunal had been permitted provisionally to appear in the LDCE examination. As per the result furnished by the respondents, he stands already qualified in the examination held in the year 2019 for selection to the post of PA/SA.
25. Accordingly, it would be appropriate if the applicant is also given a similar dispensation as given to other candidates in the year 2020. He shall be allowed to make a written representation and exercise an option to revert to the post of GDS in the year 2017 for consequent appointment as PA/SA in the year 2019, based upon his qualifying the LDCE for the vacancy of the relevant year for which he is eligible to be considered. An undertaking from him having to forgo the service rendered as a Postman and not claiming any benefits for the services rendered in Postman cadre and not claiming any MACP benefit from the date of joining as Postman shall also be taken from him.
26. Keeping the above points in view, the OA is allowed. The respondents are directed to permit the applicant to exercise an option, if he so desires, for reversion to GDS cadre in 2017 and subsequent appointment in the PA/SA cadre on the basis of his performance in the LDCE examination conducted in the year 2019 for the vacancies of the years 2015-16, 2016-17, 2017-18."
13. The status of the applicant in the present case therefore, as already held in OA No.967/2019, has to be determined as on the crucial date prescribed for determining his eligibility to appear for the LDCE. In the present case this crucial date as notified by the respondents is 1.1.2020. On this date the 16 OA.No.170/323/2021/CAT/Bangalore Bench applicant was admittedly working as a GDS only and was also admittedly eligible for applying for the LDCE for selection to the post of PA/SA for the vacancy year of 2020.
14. The applicant vide interim orders dated 23.06.2021, issued by this Tribunal had been permitted provisionally to appear in the DEST Qualifying examination. The results of the examination were directed to be kept in a sealed cover. The respondents were directed to produce the sealed cover of the result of the applicant. Accordingly, the sealed cover was submitted by the respondents on 06.3.2023. It was opened in the open Court in the presence of the learned counsels for the respective parties. The marks secured by the applicant were as under:
Paper-I (Merit): 67 Paper-II (Objective + Descriptive) (Qualifying): 38 Paper-III (DEST) (Qualifying): 25.
15. The applicant had already qualified based on the merit obtained by him in Paper-I and Paper-II. In Paper-III (DEST) he has obtained 25 marks out of 25 marks and has therefore attained qualifying marks in the DEST as well.
16. In OA No.967/2019, this Tribunal had noted that, for the examination held on 20.12.2020 for selection to the post of PA/SA, the respondents had ordered to release the results of those candidates which were kept in sealed cover, and who were otherwise eligible to the said examination, who had joined as Postman/Mail Guard based on the results of the LDCE for the 17 OA.No.170/323/2021/CAT/Bangalore Bench recruitment to the cadre of PM/MG held on 10.1.2021. Such candidates were allowed to make a written request for reversion from PM/MG cadre to GDS cadre with the condition that after reversion, such GDS shall forfeit all rights that would have accrued had he/she continued in the aforesaid post in the Regular Establishment. Accordingly, an undertaking from the GDS candidate was also obtained that he/she will not claim any rights to the post of Postman/Mail Guard in future based on the above exam results. A separate undertaking was also directed to be taken from them that they will forgo the service rendered in PM/MG cadre and will not claim any benefits for the services rendered in PM/MG cadre i.e. uniform Allowance, Increment, Bonus, TA/TP etc. It was also specified that they will also not claim MACP from the date of joining in the lower cadre in future.
17. In the present case also, based on the marks obtained by the applicant, he has qualified in the LDCE conducted by the respondents. Accordingly, it would be appropriate that the applicant is also given a similar dispensation by the respondents.
18. Accordingly, the impugned order No.B1/GDS to PA/2020/Dlgs dated 25.05.2021 (Annexure A-6) issued by the 1st Respondent is set aside.
19. The respondents are directed to permit the applicant to exercise the option, if he so desires, for reversion to GDS cadre in 2020 and subsequent appointment in the PA/SA cadre on the basis of the performance in the LDCE examination conducted in the year 2020 for the vacancy year of the year 2020.
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20. OA stands disposed of accordingly.
21. The Original mark sheet shall be returned to the learned counsel for the respondents keeping the photocopy of the same for record purpose.
22. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/vmr/