Central Administrative Tribunal - Allahabad
Babu Lal Prasad vs U.O.I & Ors 2002 (2) A.T.J Pg. 606 on 2 January, 2012
(RESERVED) CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH ALLAHABAD ALLAHABAD this the day of , 2012. HONBLE MR. D.C. LAKHA , MEMBER (A) HONBLE MR. SANJEEV KAUSHIK, MEMBER (J) Original Application Number. 477 OF 2010. Babu Lal Prasad, aged about 35 years, son of Late Bhullan Prasad, resident of village and P.O Bankata Amethia (Via Bhatpar Rani), District- Deoria, retrenched G.D.S Branch Post Master, Bankata Amethia, District- Deoria. Applicant. VE R S U S 1. Union of India through the Secretary , Ministry of Communication and I.T cum D.G, Department of Posts, Dak Bhawan, New Delhi- 110001 2. P.M.G., Gorakhpur Region, Gorakhpur. 3. Supdt. Post Offices, Deoria Division, Deoria. ..Respondents Advocate for the applicant: Shri A. Tripathi Advocate for the Respondents: Sri R.K. Srivastava O R D E R
Delivered by Honble Mr. Sanjeev Kaushik, J.M. By means of the instant Original Application the applicant seeks quashing of notification dated 13.02.2010 whereby respondents notified one vacancy of Gramin Dak Sevak Branch Post Master (in short GDS BPM) (Annexure A-1) and further sought a direction to the respondents to appoint the applicant to the post of GDS BPM, Bankata Amethia.
2. Brief facts of the case are that as a consequence of dismissal of Shri Kailash Singh from service the post of B.P.M fallen vacant and the post was advertised. After proper selection the applicant, who belongs to S.C Category, was appointed vide appointment letter dated 01.02.2001 (Annexure A-2). The applicant joined on 13.02.2001. Subsequently Sri Kailash Singh was reinstated in service without any intimation to the applicant. At that time the applicant had already put in more than 7 years service with the respondents. A representation was moved by the applicant on 29.10.2005 addressed to respondent No. 3 for alternative appointment as GDS S.P.M, Khampur or G.D.S M.D , Pratappur Sugar Factory as the posts were lying vacant. When the respondents did not pay any heed to the request of the applicant for alternative appointment then the applicant made a representation to the Chief Post Master General, Lucknow on 21.11.2005 (Annexure A-5). It is after intervention of the C.P.M.G the applicant came to know that Sri Kailash Singh has been reinstated and the applicant was relieved of his charge (Annexure A-6). Again an application was moved by the applicant for alternative appointment on 22.12.2005 (Annexure A-8) which was supplemented by another representation dated 21.01.2006(Annexure A-10). On 17.04.2006 the applicant received a letter from the respondents whereby providing a list of 19 vacant posts and calling option against any one post out of these 19 vacancies. On 15.05.2006 the applicant submitted his option for appointment as GDS BPM, Anjna (Annexure A-13) but despite the option the respondent No. 3 appointed another person as substitute without considering the claim of the applicant, which was submitted in terms of letter dated 17.04.2006. When nothing was done by the respondents then the applicant filed O.A No. 1205/2006 which was disposed of by the Tribunal vide order dated 03.11.2006 (Annexure A-14) with direction to the respondents to decide the pending representation of the applicant within a period of 10 days from the date of receipt of certified copy of the order. Again an offer was given by the respondent No. 3 on 21.12.2006 seeking his option for appointment on any one post against 63 vacant posts. The applicant submitted his option but no order of appointment was given and other persons were appointed. In the meantime Sri Kailash Singh, who was holding the post of GDS BPM at Bankata retired and the applicant requested the respondents to adjust him on the said post but the respondents did not consider his case hence the O.A.
3. Pursuance to the notice the respondents appeared and resisted the claim of the applicant by filing Counter Affidavit. In the Counter Affidavit the respondents submitted that the applicant was provisionally appointed against the post which fallen vacant on dismissal of Sri Kailash Singh on 31.01.1999. Ultimately Sri Kailash Singh was to be appointed as the case has been decided in his favour and on his reinstatement the applicant was retrenched. In para 25 it is submitted that in compliance of the order passed by this Tribunal the representation of the applicant was considered for alternative employment.
4. The applicant has filed Rejoinder Affidavit in which he has contradicted the CA filed by the respondents.
5. We have heard Shri A. Tripathi, counsel for the applicant and Sri D. Tiwari, holding brief of Sri R.K. Srivastava, counsel for respondents.
6. Learned counsel for the applicant vehemently argued that the action of the respondents in retrenching the services of the applicant is illegal, arbitrary and violative of Rule 18 of G.D.S (Conduct and Service ) Rules 2001 (in short GDS Rules 2001) as the services of an employee, who has put in more than three years of service cannot be terminated without show cause notice, therefore , the impugned order is bad in law and liable to be set aside. He further urged that even otherwise the applicant is entitled for alternative appointment for which his option was called for but ultimately for the reasons best known to the respondents his claim was not considered which shows colourable exercise of powers. On the other hand learned counsel for the respondents argued that the applicant was appointed provisionally , therefore, on reinstatement of regular incumbent of the post, on which the applicant was appointed, his services were dispensed with hence there is no illegality in terminating the services of the applicant. With regard to the claim of the applicant for alternative appointment it is argued that the applicant is at liberty to file an application which will be considered as per the relevant rules.
7. We have considered the rival submissions and have gone through the record as well as the judgments cited by the learned counsel for the applicant.
8. It is not disputed that the applicant was appointed though provisionally but after following due procedure i.e. by advertising the vacancy and inviting applications from open market and after conducting interview the applicant was appointed vide order dated 01.02.2001. Averment to this effect has not been rebutted by the respondents. The services of the applicant was terminated on joining of Shri Kailash Singh, the person whose services were terminated as a consequence of disciplinary proceedings, on 10.10.2005. While terminating the services of the applicant admittedly no show cause notice was issued and complete goby has been given to well established principle of natural justice. The options of the applicant was also sought against the vacant posts of G.D.S but despite the option given by the applicant no appointment order has been issued in favour of the applicant. Even the vacancy from where the services of the applicant was terminated i.e. Bankata Amethia was also became available as Shri Kailash Singh retired on superannuation but the prayer of the applicant for alternative appointment was not considered. Learned counsel for the applicant invited our attention to Rule 4 and Rule 8 of G.D.S (Conduct and Employment) Rules 2001 which deal with appointing authority and termination of employment of a Sevak respectively. He also produced an Instruction issued by Department of Posts vide Letter No. 17-14/2008-GDS dated 26.02.2009 which deals with absorption of surplus Gramin Dak Sevak on abolition of posts and maintenance of waiting list.
9. Learned counsel for the applicant vehemently argued that the action of the respondents in terminating service of the applicant is totally illegal, arbitrary and in colourable exercise of powers as before terminating the services neither the applicant was given opportunity of hearing nor any notice was given to him. He further argued that the termination of services of the applicant is also contrary to rule 8 of Gramin Dak Sevak (Conduct and Employment) Rules 2001, which mandates that who so ever have completed three years of service, his service cannot be terminated without firstly issuing the notice. He placed reliance upon the orders passed by this Tribunal in the case of Raghunath Singh Vs. U.O.I & Ors 2002 (2) A.T.J pg. 606, Devi Singh and Anr. Vs. U.O.I & Ors 2005 (1) ATJ pg. 274 and Y.P. Makwana Vs. U.O.I & Ors. -2003(1) ATJ pg. 352. On the basis of above judgments, counsel for the applicant submitted that the termination of services of the applicant itself is bad in law. Secondly he submitted that the action of the respondents is also violative of principle of natural justice. In this regard he placed reliance upon the judgment of Honble Supreme Court in the case of R. Sulochana Devi Vs. D.M. Sujatha and Ors. 2005(1) ATJ pg. 671.
10. Before proceeding further it is relevant to note down the service rules, which governs to service conditions of the respondents department i.e. known as Gramin Dak Sevak (Conduct and Employment) Rules 2001 (in short GDS Rules 2001). Rule 8 of GDS Rules 2001, which is akin to rule 6 of old GDS (Conduct) Rules 1964, deals with the termination of employment , which reads as under:-
8. Termination of Employment (1). The employment of a Sevak who has not already rendered more than three years continuous employment from the date of his appointment shall be liable to termination at any time by a notice in writing given either by the Sevak to the Appointing Authority or by the Appointing Authority to the Sevak;
(2). The period of such notice shall be one month;
Provided that the employment of any such Sevak may be terminated forthwith and on such termination, the Sevak shall be entitled to claim a sum equivalent to the amount of Basic Time Related Continuity Allowance plus Dearness Allowance as admissible for the period of the notice at the same rates at which he was drawing them immediately before the termination of his employment, or, as the case may be, for the period by which such notice falls short of one month..
11. It is further relevant to reproduce the Instruction issued by Department of Posts vide Letter No. 17-14/2008-GDS dated 26.02.2009 which reads as under : -
The matter has been further examined and it has been decided that consequent upon the abolition of GDS posts, the surplus Gramin Dak Sevaks should be accommodated in the alternative posts in the following manner:-
(1) the surplus Gramin Dak Sevak may be accommodated as far as possible under the accounts jurisdiction of the Sub office where he is working subject to availability of vacancies and also fulfillment of the conditions of educational qualification prescribed for the post, etc. (2) if there is no vacancy in the Branch Offices under the Accounts jurisdiction of the Sub Office, the surplus Gramin Dak Sevak may be informed of the details of the vacancies available in the whole division/sub-division and he will be asked to exercise option for choosing the post.
(3) if he is not willing, his name may be kept in the waiting list which will be maintained for two years for offering him any vacancy that may arise subsequently in the Accounts jurisdiction of the Sub Office and if he refuses to avail himself of the opportunity, his name may be deleted fro the waiting list.
(4) the interim period of non-employment will count for qualifying service for eligibility to take departmental examination of Group D and Postmen. However, this period will not be counted for purposes of ex gratia gratuity (as per Letter No17-128/88/EDC & Trg., dated 6.4.1989) and payment of severance amount.
12. The provisions contained in Rule 8 of GDS Rules 2001 has come up for interpretation before various court of law and it is held that a substitute /provisional appointee , who has completed three years of service cannot be thrown out of service summarily without issuing show cause notice as envisaged in rule 8 of GDS Rules 2001. Reliance in this behalf is placed upon the order of Ahmadabad Bench of this Tribunal in the case of Y.P. Makwana (Supra) . The relevant para reads as under : -
8. We, therefore, quash and set aside the order dated 14.03.2002 produced at Annexure A-3 and direct the department to reinstate the applicant in his original post with all backwages. Mr. Doctor at this stage submitted that liberty may be given to the Department to take further action after giving a show cause notice to the applicant. He, however, objects to the award of the full backwages to the applicant saying that backwages need not be given in full, but 50% may be allowed. So far the liberty for further action is concerned, we grant such a liberty and department may take any further action in this regard after issuing a show cause notice and considering the reply of the applicant to such notice. However, the respondents are directed to take an appropriate action only after the reply of the applicant to show cause notice is received and the same is duly considered. So far the backwages are concerned, since we have found that order of termination of service of the applicant was not based on any rules or regulations but was in the contravention of the departments own circular, we are not inclined to accept the say of Mr. Doctor that 50% of backwages should be given. The Supreme Court has already taken a decision that if an order of termination of service is illegal, the employee is entitled to get the full back wages i.e. in the case of A.I Kaira V/s Project and Equipment Corporation reported in ATJ 1988(2) Vol. 5 page 545. In any case, we direct the respondents to pay the full back wages to the applicant from the date of the termination of service till reinstatement and the same be paid within a period of three months from the date of receipt of a copy of this order and if not paid within the stipulated period, the same shall be payable at the rate of 12% per annum from the date of expiry of three months.
13. In another O.A No. 231/08 decided on 05.04.2011 , the Jodhpur Bench of this Tribunal after analyzing the issue on the earlier precedent has come to the conclusion that those provisional appointees, who have rendered three years continuous service cannot be thrown out of service without issuing show cause notice as per rule 8 of GDS Rules 2001. Against the order of Jodhpur Bench, Union of India filed DBCWP No. 6246/11 U.O.I & Ors. Vs. Gopa Ram, which is dismissed by the Honble High Court of Rajsthan at Jodhpur vide its judgment dated 24.09.2011. The relevant observation made by the Honble High Court reads as under:-
We have perused the judgment impugned . In our opinion, the order passed by the learned Tribunal is perfectly in consonance with the provisions of law in view of the fact that before passing the order impugned no opportunity of hearing was given to the respondent applicant which is mandatory in view of the judgment of the Honble Supreme Court rendered in the case of D.K. Yadav Vs. J.M.A Industries Ltd. 1993 SCC (L&S) 723..
Thus, the view taken by co-ordinate Bench of this Court on interpretation of Rule 8 ibid. is clear to the effect that the employment of a GSBPM who ha not rendered three years continuous service could be terminate at any time by notice in writing by either of the parties but when an incumbent ha rendered three years service, no order terminating such service could be passed without opportunity of hearing. We find no reason to take any different view of the matter: and the Tribunal does not appear to have committed any illegality in holding, while following the decisions aforesaid that after continuous employment for over three years, the services of the applicant could not have been terminated by the petitioners without following the prescribed procedure. Though, a suggestion has been made that the safeguard under Rule 8 ibid. is available only to a regular GS who is appointed through regular process on substantive post by a competent authority but this suggestion neither appears to be in conformity with the plain language of Rule 8 or could be countenanced for the view already taken by this Court in Chandresh Kumar @ Chunni Lal (supra). In the aforesaid view of the matter and in the admitted fact situation that the services of the applicant were terminated without any notice, without any hearing, and without following the prescribed procedure, the only relevant point for determination is as to whether the employment of the applicant had been continuous for a period of three years or not; and, in this regard, we are unable to find any fault in the findings of the Tribunal that the applicant has indeed served for a continuous period of over three years. It is more than apparent that the repeated acts of so-called taking over and again over the charge were aimed only at creating some artificial breaks in service. Obviously, the idea behind resorting to this methodology of artificial breaks had been to somehow obviate the operation of the GDS Rules, particularly Rule 8 ibid. that invests the incumbent with a right against termination after working continuously for three years.
14. Not only this it is settled law of land that a vested right cannot be taken away without show cause notice to the effected person. In this behalf reference is placed upon R. Sulochana Devi Vs. D.M. Sujata 2005(1) ATJ 671 and in the case of D.K. Yadav Vs. J.M.A Industries Ltd. 1993 SCC (L&S) 723. Even from perusal of rule 8 reproduced above indicates that those provisional appointees who have completed three years service should not be thrown out of service summarily without notice. In view of the above we find that the impugned order is not sustainable on this ground.
15. In the instant case the applicant was appointed on 01.02.2001 though provisionally but after following due procedure for recruitment and has put in more than three years of service when he was throw out of service without any prior notice, which is in complete violation of rule 8 of GDS Rules 2001 and also against the principle of natural justice. Not only this even the respondents did not accommodate/absorb the applicant on the available vacancies against which the option was called for from the applicant twice to which he gave his option. Our view has been fortified from the judgment of Apex Court (Supra) and above view has also been considered by this Tribunal in O.A No. 1226/2005 - Chandra Shekhar Chaubey Vs. U.O.I. Hence applying the ratio of above settled law in the facts of the case of the applicant, the O.A deserves to be allowed.
16. Secondly , as per the respondents own instruction dated 26.02.2009, they have to adjust the person in the waiting list against the available vacancy. From the facts it is clear that the respondents for the reasons best known to them have not even adjusted the applicant on available vacancy rather new incumbent i.e. substitute has been appointed by ignoring the claim of the applicant or the candidates who are in waiting list, which is also bad in law. Therefore, we are of the considered view that the impugned Notification dated 13.02.2010 is totally bad in law and in violation of Article 14 of the Constitution.
17. Accordingly, the O.A is allowed. The respondents are directed to reinstate the applicant on available forthwith. It is made clear that the applicant will not be entitled for wages from the date of his termination till he is reinstated but the intervening period shall be counted for all other purposes. No costs.
(SHASHI PRAKASH) (SANJEEV KAUSHIK) MEMBER- A MEMBER- J /Anand/ ?? ?? ?? ?? 11 O.A No. 477 of 2010