Central Administrative Tribunal - Madras
S Gururajan vs M/O Communications on 30 December, 2021
bt hee cepa aetna ats Cae eels clans ona ale aati ateasilentle i G34 TORR2OLS CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAT BENCH 0A/310/01070/2016 Dated the © day of December, Two Thousand Twanty CORAM : HON'BLE MR. T. JACOB, Member (A) S. Gururajan, S/o. Sama Rao, A/10, Type 1, Postal Staff Quarters, Kutchery Road, Mylapore, Chennal ~ 4. Applicant . By Advocate M/s. 5. Ramaswamyrajaraia Ms Union of India, rep by, i.The Chief Postrnaster General, Tamil Nadu Circle, Chennal 600002,
2.Superintendent of Railway Mall Service, Chennai Sorting Division, Chennal 600008.
3.The Head Record Officer, Chennal Sorting Division, Chennal 600008, Respondents By Advocate Mr S. Padmanabhan | S OA HYNBROI6 | QRRER (Pronounced by Hon'ble Mr T. Jacob, Member{A}} The applicant has fled this OA under Sec.i9 of the Administrative Tribunals Act, 1988 seeking the following reliefs :
"Te quash the impugned order bearing Mame No. STASZ9-048 1472/2012, dated 39.08.2018 sessed by the frst respondent, to direct the resoamdente fa. count. the, aoptiicant''s service taking inte sccount the continucus officiating period rendered is Group 'OD' cadre with affect from O5.09. 2000 to 24.05.2008 and give him Gye seniority in Group 'D' cadre and all consequential benefits therean..."
a. The brief facts of the case as stated by the applicant are as . FoHOws:
: "The applicant while working as Extra Departmental Mailman from 1984 was promoted as Group 'D' under seniority quote on officiating capacity by 4 valid pussies Promotion Committee in the year 2000, He was holding the post continuously and was given regular' appointment in the sald cadre. However, his request for continuity of service and seniority etc with effect fram 2000 Le including the service _fendered in officiating capacity was rejected by the
-pespondents. Aggrieved on thal, he fled OA No.1472 of 2012 wherein this THbunal by order dated 26.11.2013 directed the respondents to re-examine the case af the applicant alang with the similarly placed persons in the Hight of the Hon'ble Supreme Court judgment. When the said order was not complied with, 8 OA IOTRROLS the applicant filed Contempt Petition No.32 of 2015 before this Hon'ble Tribunal and during the pendency of the said Contempt Petition, the 1" respondent passed the impugned order rejecting the claim of the applicant. Challenging the above impugned order the applicant has fled this OA seeking the aforesaid reliefs on the following grounds:
|. Based on the seniority in the -- Extra Departmental Mailman cadre, the applicant was selected as approved candidate for promotion te the < cadre of Group 'D' and was ordered to officiate in Group '0D' cadre in a regular vacancy with effect from 05.09.2000 continuously without break,.
i. When the respondents 2 & 3 had promoted the applicant as Group "DS with effect fom 24.05.2003, they ought to have issued regular appointment to him on completion of one year of officiating period as per the Govt of India, MHA OM No. dated 26.12.1968 read with Department of Personnel OM dated 25.09.1972. He was given regular appointment with effect from 24.05.2003 subsequently without counting his service rendered in Group 'D' cadre on officiating capacity le without taking Inte account the length of service in a regular vacancy with effect from 05.09.2000 to 24.05.2003 for seniority and other consequ benefits, | SSAASESRAS SPREE SSSI SSSI USI gage viege ate badg in 2 ST MIST Se SEI a tentnetetiet eee § OA VION i. The 1° respondent had passed the impugned order without proper application of mind towards the order dated 11.09.2014 given by this THbunal In OA No. 104 of 2013, because in the said order the respondents were directad to re-axaming the case as a general issue taking note ef the law igid down by the Hon'ble Supreme Court in regard to counting the period of continuous officiation for the purpose of sentonity In Groun 'D' post.
iv. There is delay and latches on the side of the respondents,
3. The applicant has relled on the following Judgements in supoort of his submission :-
i. Judgment of CAT-Principal Bench in OA 1204/1987 dt. 20.21.1987 In the case of S.K.Nayyar and others Vs. Union of Indie & ors.
ii, Judgment of CaTJodhpur Bench in OA 137/2011 di. 04.07.2016 in the case of Rajeev Pathak Vs. Union of India & ors. .
. i, Judgment of CAT-Bombay Sench In DA TA No. 234/1986 dt. 19.06.1987 In the case of Shri. iv. Judgment of Hon'ble Supreme Court of India dt. 18.07.1984 in the case of G.PGoyal & ors Vs. The Chief Secretary, Govt of UP & ors.
s OA HNESOTS ¥. Judgment of Hon'ble Supreme Court of India In CA No. 5664 of 1999 & batch dt. O1.10.1999 In the * case of L.Chancrakishore Singh & ors Vs. State of Mantour & ors. | viv Judgment of Hon'ble Supreme Court of India dt. 22.08.2000 1A WP (C) No. 490 of 1987 & bateh in the case of Rudra Kumar Sain and others Vs. Union of Indie and others.
4. The respondents have filed a detailed reply statement stating that the applicant was appointed as Extra Oepartmental Mail-man in the year 2984 and es Group 'D' w.e.f 26.05.2005, The applicant seeks counting of his service rendered on arrangement of duty from 05.09.2000 to 25.05.2003 prior to his regular appointment with afl consequential benefits. As per the Recrultment Rules for recrulbment of Group 'OP cadre, in the Department of Posts, earlier there were two categories in Group 'OD' cadre - Test Category and Non-Test Category. For the selection of NTC to TC there would be a Hteracy Test. The NTC Group 'D' will be filled only fron the senler most Extra Departmental DMM (now GOS Gramin Dak Sevaks). The vacancies that arose then and there were filed by convening Departmental Promotion Committee and the aligible candidates were given appointment in Group 'D'-cadire. Accordingly, pec was held on 22.03.2000 for selection of \ 6 assessed v 8 OA LOW IWS (UR-3, OBC-2, SC-1) in Group "D' cadre and the following candidates were selected:-
UR | OBE se NJGaresan . LGovindasamy S,Marirmuttis G Selvakumer E.Gnanasekar.
S.Gururajan/2 3 2 UR and 1 SC candidates were given requiar appointment and i UR and 2 OBC candidates were waiting for appointment against assessed vacancies. In the meantime, the Government imposed a ban on recruitment schemes by the Directorate letter no 45-6/200-SPB I] (Part) dated 07.04.2000 which was communicated by the Circle Office vide letter no REP/6-
500/2000 dated 05.05.2000. When the ban on recruitment was subsequently lifted, there were clear instructions from the Directorate which was communicated by the Circle Office vide letter No.Rep/202/2000/DR dated 27.12.2000 that only 25% of less than a year old vacancies in operational posts only falling In Direct Recruitment quota can be filled up. As per .the : _Anstructions of Department of Personnel & Training, Screening . Committee was formed and only 13" of the vacancies were approved for filling up the post and the remaining 2/3° were abolished vide letter no 2/8/2001-PIC dated 11.05.2001. As per Directorate letter No.45-6/2000-SP8 Q (Part) dated 07.04.2000 which was communicated by the Circle Office | le e QA LOTR were detslied to work on officiating capacity purely on temporary basis vide HRO oe respondent) Maro No. HRO/SBYOMg dated 08.09.2000. Consequent t the approval of the Postal Directorate, New Oeihi for Aun uo of vacant posts of Mall-eman cadre in RMS didsions for "the vacancies of less than one year old and for which recruitment action was not finelised, ff Aas been directed to Au the vacant posts allotted to RMS divisions as per the instructions contained in DOP&T OM No.-8/2001-PIC dated 16.05.2001 which was communicated by Circle Office letter no REP/2/2/2000/Dig dated 11.07.2001. Shri. S. Gururajan was appointed as Grade Doon regular basis we.h 26.05.2008 vide MRO Memo No. HROYSG/Appt ct, 24.05.2003. Aggreved on this, the applicant fled OA 1472 of 2012 before the Hon'ble CAT-Madras Bench. In pursuance of the direction of the Tribunal, the first respondent = disposed the representation of the applicant rejecting the claim of the applicant. Further the Contempt Petiiian fled by the applicant was dismissed by the Division Bench on 02.09.2015 and the CA was closed. Aggrieved on this, the applicant fled 8 OA HTSUS dismissal of the OA.
5. The respondents also relied on the following citations In support of their submissions :
~ i Judgment of Hon'ble Madras Higa Court gh. 14.07 2018 in WP Nos. 6474 and 9071 of 2015 in the case of S. Babu & ars Vs. Union of India & ann i. Judgment of Hon'ble Supreme Court of India at. 10.04.2006 in the case of Appeal (Civil) Nos. 3895-3612 of 1899 in the case of Secrstery, State of Karnataka & ore Vs. Umadevi & ors.
6. Heard the learned counsel for the respective parties and perused the pleadings and documents on record.
?. Admittedly this is the second round of {tigation before this Tribunal. The applicant had earfler filed OA i472/2012 before this Tribunal seeking the above rellefs wherein this Thbunal by ESS ' order dated 26.11.2013 disposed of the OA as under:-
"41, In the facts and cireumstances of the case and legal position sek out above, the Resoondants are directed to reexamine the case as a general issue faking note of the law laid down by the Hon'ble Supreme Court in regard to count XC 9 OA os period of continuous officiation for the purpose of | senioirty in Group "D' post of all those similarly placed as the applicant and take a decision in all the cases Including that of the applicant where due to ban their regular appointrhent got delayed but nevertheless they were put im officiating charge of Group "D' pest in which they continued uninterruptedly tl their reqular appointment, This exercise should be completed within a period of 4 months fram the date of receipt/commun cation of @ copy of this order'.
In pursuance thereof, the respondents Nave re-examined Ais case, but however rejected the claim by order dated 29.04.2015.
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8. Undisputedly the aoniicant being the senior most FOMM
- was appointed as Group 'D' on regular basis w.e.f 26.05.2003 vide HRO Memo No. BRO/ SG/Appt dated 24.05.2003. His representation dated 22.05.2006 to the 2° respondent to refix his date of commencement af continucus service as 05.09. 2000 instead of 26.05.2003 was rejected by the ae cospbadient vide letter dated 29.06.2006 due to ban on Riding up of vacancies and he was kept under waiting Ist H& was regularly anpointed after being cleared by the Sereaning Commiltes of Postal Directorate wie.f 26.05.2003. His Subsequent representation a Qa 1970S dated 05.03.2007 to the 2 respondent for counting of past services rendered in Grade '0' In officiating capacity was also rejected and the same was informed to him vide letter dated 22.03,2007. His appeal dated January, 2010 to the" 1 respondent also stood rejected by order dated 18.08.2010. According to the applicant the rejection of the claim is Mlegal, arbitrary and unsustainable in law?
9. Ihave considered the matter. As per rules then in vogue, Group 'OD' appointments were made from among the senior EDMN depending upon the number of vacances available. 12.
vacancies were assessed for the year 2000 for Group 'OD? (Test Category & Non Test Category) vith a break up of UR-6, and OBC-6 and all the vacancies were approved by the OPC and aopaintment orders were issued. Subsequently, OPC was held on 22.03.2000 for selection of 6 approved vacancies with a break up of UR-3, ORC-2 and SC1 out of which UR-? and 'SC OL were given regular appointments and the remaining * candidates including the appicant were kept in the panel, However, before issue of appointment orders to the officials in ~ a . GA LORIN S there was an instruction fram the Screening Commiltiee thet only 25% of less than a year old vacancies in operational posts falling in direct recrultment quota can be Tiled up. Initially, the applicant was selected by the DPC against UR quote and posting could not be made due to ban on recruitment. The applicant was engaged as Group "DY vide order dated 05.08.2000 and after selection for the vacancy year 2001, was reguiarised in the sald post vide ordér dated 24.05.2003 and after completing the probatioanary period of two years was confirmed vide order dated 35.08.2005.
10. As per Directorate letter No. 45-6/2(K00-SP8 IP (Part) dated 07.04.2000 which 'was communicated by the Circe Office Vide [etter no. REP/G- 500/200 dated 05.05.2000 wherein it was clearly mentioned 'that "officiating arrangements cannot be treated as Alling of any post." Hence, the contention of the applicant that mere long years of working in 8 post continuously purely on temporary basis will not make him aligible for regularization.
ii. Further, the respondents have forwarded the Directorate's letter dated 05-09-2014 along witht Hon'ble CAT orders in OA ie GA LOTS Regions/C.O Units and requested to check and report as to whether such similar cases are available and, if so, furnish the details. The report received from Regions/Units revealed that the pay and allowances were drawn in supplementary bill for substitute arrangement and not in pey bIN as the GDS officials were only engaged as substitute in Postman/Group D vacancies. SRM, Chennai Sorting Division has also intimated that the By % officiating pay and allowances of all the said GDS officials was ite not drawn alone with regular MTS officials.
12. The Hon'ble Supreme Court in CA.No,3595-3612/1999 in the case Secretary, State of Karnataka and others Vs Umadevi and others dated 10.04.2006 held ther:
"One aspect arises. Obviously, the State is aise controlled by economic considerations and Anancia! implications of any public employment, The viability ~ of the department or the ins! umentallty or of the project is also of equal concern for the State, The State works out the scheme taking into consideration the financial implications ang the economic aspects. Can the court IMpOse on the State a financial burden of this nature by insisting an regularization or permanence In employment, when those employed temporarily are not needed permanently or regularly? As an example, we can.
x 3 OA 1OPRVIE to all those who are being temporarily or casually employed in a public sectar undertaking. The burden may become so heavy by such @ direction that the undertaking itself may collapse under its own weight. It is not as if this had not happened, So, the court ught not to impose a financial burden on the State by such directions, as such directions may tum counter productive."
13. The Hon'ble Supreme Court in "CA.No.80-123/96 in the case of Union of India ws. Shri KLN. Sivadas and others dated 01.08.1997 held that "any service Which was rendered prior to regular appointment in the cadre cannot count for the purpose of these rules becasue it cannot be considered as service in any eligible cadre'.
ee i4. In the case of Madhyamlk Shiksha Parishad, UP Ve Ani! employees engaged on adhocftemporary basis cannot be granted regularisation.
iS. In the case of CA No.4996/06 fled by Indian Drugs and Pharmaceuticals Limited Vs Werkmen Indian Drugs & Pharmaceuticals Lis, the Hon'ble Supreme Court observed that if the Court or THbunal directs the dail or adhoc or casual x ~ id OA ONS employee should be continued in services 8 date of superannuation © is implidly regularizging such and amployes which cannot be done and that regularization can only be done im accordance with the rules and not-dehors the rules. [t was also observed by the Hon'bis Siprens Court that the rulas of recrufiment cannot be relaxed, 1s. The Hon'ble Supreme Court in CAN. 1HOG/2ORO & betch in the case Vinod Giri Goswami ~& others Vs State of UGarakhand and others dated 14.02.2020 held that the oramotess. are not entitied to count their ad hoe service for the purpose of computing their seniority.
17, The question of seniority in e post would arise only when a regular post is available to. accord sonlority In that post- Mere inclusion of one's name in the select fst drawn by a DPC would not give any right to issues of seniority until the concerned individual is formally appointed against a sanctioned requilar : post, The Government issued" dnstructions oon ban oon recrufiment much before the turn of the applicant could have come in the normal course for requler appointment to the post as per the DPC recommendations. he was later given regular & iS o OA HOTUOIS Ailing up,
18. As such, the claim of the applicant for counting his past service rendered in Group 'D' oon officating capacity is not sustainable in law. The applicant cited the Non'ble CAT Judgment dated 11.09.2014 In OA 1048/2013 which Is @ singilar case as that of the applicant which was disposed of by rejecting the case by a speaking order dt 08.05.2015 by the 1° respondent. Similar disposal was given by the 1 respondent by a speaking order dt. 29.04.2015 In the OA filed by the applicant, ~ age ig. In the conspectus of the above facts and circumstances of the case, the Judgements of the Hon'bie Supreme court and the discussions here in above, I see no grounds to Interfere with the impugned order of rejection of the algim of the applicant.
20. In the circumstances, the GA is Hable to be dismissed and Naas:
Seen iy