Central Administrative Tribunal - Ernakulam
Jima Mohan vs Union Of India on 30 September, 2016
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.571/2012
Friday, this the 30th day of September, 2016
CORAM:
Hon'ble Mr. Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs.P.Gopinath , Administrative Member
Jima Mohan
Malu Mandiram
Edavattom
Karuvelil P.O
Ezhukone, Kollam ... Applicant
(By Advocate -Mr.Shabu Sreedharan)
Versus
1. Union of India, represented by the
Secretary/Director General of Posts
Ministry of Communications, New Delhi - 110 001
2. The Chief Post Master General
Kerala Region
Thiruvananthapuram
3. Senior Superintendent of Post Offices
Kollam Division, Kollam - 691 001 ... Respondents
(By Advocate - Mr.M.K.Padmanabhan Nair)
This Original Application having been heard on 29.8.2016, the Tribunal on
30.9.2016 delivered the following:
ORDER
By Hon'ble Mrs.P.Gopinath , Administrative Member The applicant was selected for the post of GDSBPM (Grameen Dak Sevak Branch Post Master for short) at Pavithreswaram BPO after complying with all the required formalities and procedures and appointed in the said post as on 8.4.2011. Things being so, she was served with the Annexure A-4 Memo stating that the Circle office vide letter No.Vig/23/HQ/144/2011 dated 18.11.2011 had ordered to cancel her appointment. She approached this Tribunal seeking to get quashed the Annexure A-4 Memo by filing O.A No.259/2012. This Tribunal was pleased to dispose of the same granting 2 weeks time to the applicant to submit a representation and on receipt of such representation, the authority was to pass orders on it within 1 month. Accordingly, the applicant submitted Annexure A-7 representation. The 3 rd respondent passed the impugned order terminating the applicant from service as per Annexure A-8 memo. Hence, this O.A seeking to get quashed the Annexure A-8 Memo.
2 The third respondent invited applications for appointment to the post of Gramin Dak Sevak (GDS) Branch Post Master Pavithreswaram Branch Post Office, Kollam. The applicant submitted her application in response to the notification vide the letter dated 28.12.2010. The applicant was called for to report at his office on 13.1.2011 at 3 p.m with the required documents. On 21.1.2011 the 3rd respondent issued a letter to the applicant informing that she is provisionally selected for appointment as GDSBPM, Pavithreswaram EDBO. On 8.4.2011, the Mail Overseer handed over the charge of Branch Post Master of EDBO, Pavithreswaram to the applicant. On 3.3.2012 the applicant was served with a Memo by registered post by the 3rd respondent intimating that vide letter No.Vig/23/HQ/134/2011 dated 18.11.2011 the circle office ordered to cancel her appointment and therefore the 3rd respondent proposes to cancel her appointment with immediate effect. In the Annexure A-4, the applicant was given an opportunity to show cause as to why she should not be terminated from the post of GDSBPM, Pavithreswaram for the reason mentioned therein within 10 days of the receipt of the Memo. The Circle office cancelled the appointment of the applicant on account of the fact that the four top merit applicants for the post should not have been disqualified due to their non-submission of declaration regarding their independent income. Relief sought by applicant is for quashing the Annexure A-8 Memo issued by the 3 rd respondent terminating the engagement of the applicant as GDSBPM at Pavithreswaram EDBO and re-instate the applicant in the post of GDSBPM at Pavithreswaram EDBO.
3. The respondent in the reply statement submits that as per DG Posts letter No.22-12/2001-GDS dated 17.9.2003 marked as Annexure R-2 the sole criteria for selection to the posts of all categories of GDS's will henceforth be merit subject to orders on reservation and fulfilling other conditions like providing of space for BO, taking up residence in the BO village before appointment etc. 4 The applicant was selected for engagement by the 3 rd respondent overlooking the four more meritorious applicants as detailed in para 6 of the reply statement solely on the ground that the candidates had not produced the income certificate at the time of document verification. Since the said selection was found to be not in order, it was liable to be cancelled in view of the instructions in Annexure R-2. Accordingly, the entire selection process was vitiated and vide letter No.Vig/23/HQ/134/2011 dated 18.11.2011, the 3rd respondent was directed to call the four top most meritorious candidates for document verification and to select the most meritorious candidate amongst them for the post. Termination notice was issued to the applicant vide this respondent's letter No.B3/BO/Pavithreswaram dated 15.5.2012. The document verification was again conducted on 4.6.2012 during which only two candidates at Sl.2 and 4 turned up and Smt.Athira.R.G, who had secured 91.33% in the SSLC examination and had fulfilled all other conditions for engagement as GDSBPM was selected for the post of GDSBPM, Pavithreswaram with effect from 15.6.2012. Smt.Athira R.G submitted the resignation letter dated 9.1.2013 in view of the fact that she had got appointment in ESI Corporation. This was accepted by this respondent vide Memo No. B3/BO/Pavithreswaram dated 9.1.2013. The validity of the select panel is only one year from the date of initial finalization of the select list. In the instant case, the original document verification was held on 13.1.2011. As the validity of the original select list had elapsed by the time the resignation of the selected candidate was accepted, fresh notification had to be issued for engagement to the post. Meanwhile, Smt.Bhanumathy Amma, GDSMD, Pallimon requested for transfer as GDSBPM, Pavithreswaram BO as per provision in the rules, which was approved by the competent authority vide letter No.ST/120/3/Kollam/2013 dated 10.02.2014. Smt.Bhanumathy Amma joined the post on 4.3.2014.
5 Heard the learned counsel for applicant and respondents and perused the written submissions made.
6 The applicant challenges the prospective correction of error which occurred in the selection process. The respondent brings out that the exclusion of four top scoring candidates who scored 91.33% (highest) to 77.17% (lowest) as against applicant who scored only 76.06% was not in order as the sole criteria for selection was merit in the qualifying examination prescribed and fulfilling the other conditions of providing space for the Branch office, taking up residence in the BO Village before appointment etc as stipulated in DG Posts O.M dated 17.9.2003 produced as Annexure R-2. This O.M also clarifies that the certificate of supplementing income from other employment sources to have an adequate means of livelihood is also to be provided by candidate before the appointment letter is issued. Respondent argues that Annexure R-2 does not give any room to overlook a meritorious candidate and hence the selection process ignoring more meritorious candidates was vitiated and had to be revisited. 7 On revisiting the recruitment process two of the four candidates participated and Smt.Athira R.G who secured 91.33% in SSLC examination was selected w.e.f 15.6.2012. Subsequently, Smt.Athira on selection for appointment in ESI Corporation submitted her resignation which was accepted on 9.1.2013. The validity of the select list being one year had expired. Further Smt.Bhanumathy Amma, GDSMD, Pallimon had requested for transfer as GDSBPM, Pavithreswaram BO, which was allowed. She joined the post on 4.3.2014. The applicant was terminated vide letter dated 15.5.2012. Smt.Athira was appointed vide letter dated 15.6.2012 immediately thereafter. The document verification for second round of recruitment was done on 4.6.2012 and even if this was taken as the recruitment date and validity of select list counted one year thereafter, the applicant would not benefit as there was one more candidate with higher marks namely Mr.Sumesh R with 77.17%. On resignation of Ms.Athira, Mr.Sumesh should have been made offer of appointment, being next in order of merit of marks. Hence, the applicant's chances, if any, would arise thereafter as she had lower marks. Another GDS Smt.Bhanumathy Amma has requested for transfer as GDSBPM, Pavithreswaram. Her transfer has been approved and she has assumed charge on 4.3.2014. Hence, the post of GDS BPM, Pavithreswaram is no longer available for applicant. 8 Applicant does not qualify on merit also and hence her selection was canceled and the same cannot be contested. Any appointment made wrongly, either inadvertently or otherwise cannot be sustained for continuance. Applicant also does not have three years service to qualify for non-retrenchment. The averment of applicant that she has no source of income, goes against her appointment condition that she is expected to have an alternate source of income for which she had submitted a declaration to that effect at the time of appointment. This would also render her appointment as irregular.
9 Applicant had been given a chance to submit representation against her removal to which she responded by filing O.A 259/12. The said O.A was disposed with directions to applicant to submit a representation and for respondent to consider and dispose off the same within one month. The representation was disposed vide Annexure A-8 speaking order wherein the applicant was informed that on review of her selection, the irregularity of ignoring the claim of top four merit candidates was noticed and hence it was decided to terminate her irregular appointment.
10 The respondent in the reply statement has given details of marks obtained by the 4 more meritorious candidates, which reveals that the applicant's position is lower than these four more meritorious candidates. Hence, there remains no alternative but to offer the appointment to those among the meritorious who are willing to accept the offer of appointment. Hence this is a case where a wrong procedure of selection had been corrected and the applicant's appointment failing on merit was set aside. An irregular appointment cannot be condoned or resurrected. The provision of transfer of a serving GDS once in his career was exercised by GDS Banumathy Amma as per prevalent rules and the same was granted. Subsequently the GDS BPM Pavithreswaram is filled and is not available to be offered to any other person. Hence, the prayer of the applicant for reinstatement in the post of GDSBPM Pavithreswaram fails.
11 The Original Application is dismissed.
(MRS.P.GOPINATH) (N.K.BALAKRISHNAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER sv