Central Administrative Tribunal - Ernakulam
Vineetha P R vs D/O Post on 1 April, 2024
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00746/2016
&
Original Application No.180/00285/2019
Monday, this the 1st of April, 2024
CORAM:
Hon'ble Mr. Justice Sunil Thomas, Judicial Member
Hon'ble Mr. K. V. Eapen, Administrative Member
OA No.180/00746/2016
Vineetha P.R
D/o.K.N. Rajappan, aged 31 years
Postman, Kottayam HO
Kottayam - 686 001, Department of Posts,
residing at Padickal Parambil Sreesylam House,
Panachikkad, Kuzhimattom P.O,
Kottayam-686 533 - Applicant
(By Advocate: Mr.V Sajith Kumar)
Versus
1. Union of India, represented by
the Secretary to the Government of India,
Department of the Post
Government of India, New Delhi - 11001
2. The Chief Postmaster General
Kerala Circle,
Trivandrum - 695 033
3. The Senior Superintendent of Post Office
Kottayam Postal Division
Kottayam - 686 001
4. The Postmaster General
Central Region, Kochi - 682 011 - Respondents
(By Advocate: Mr.S.R.K.Prathap,ACGSC)
2
OA No.180/00285/2019
Vineetha P.R
D/o.K.N.Rajappan, aged 31 years
Postman, Kottayam HO
Kottayam - 686 001, Department of Posts,
residing at Padickal Parambil Sreesylam House,
Panachikkad, Kuzhimattom P.O,
Kottayam-686 533 - Applicant
(By Advocate: Mr.V Sajith Kumar)
Versus
1. Union of India, represented by the Secretary to the
Government of India, Department of the Post,
Government of India,
New Delhi - 11001
2. The Chief Postmaster General
Kerala Circle,
Trivandrum - 695 033
3. The Senior Superintendent of Post Office,
Kottayam Postal Division
Kottayam - 686 001
4. The Postmaster General
Central Region, Kochi - 682 011 - Respondents
(By Advocate: Mr.N.Anil Kumar, SPC)
This Original Application having been heard on 29.02.2024, the
Tribunal on 01.04.2024 delivered the following:
ORDER
Mr. K.V. Eapen, Administrative Member These OAs have been filed by the same applicant and are taken up for consideration together. However, we are not delivering a common OA No180/00746/2016 & OA No.180/00285/2019 3 order in these OAs but passing them separately as the order in the OA No.746/2016 has implications for the OA No.285/2019. OA No.746/2016:-
The applicant, a Gramin Dak Sevak (GDS), had filed this OA on 29.08.2016, aggrieved by an order at Annexure A-1 passed by the 4th respondent, the Postmaster General (PMG), Central Region (CR), Kochi, turning down a representation submitted by her. The order rejected the representation dated 19.01.2016, produced at Annexure A-12, by which, she had requested for a notional promotion with effect from 01.12.2014, like others who had appeared in the Select List for appointment as Postman. She pointed out that she had to file OA No.163/2012, consequent to which she had been appointed as Postman only with effect from 03.10.2015(F/N). She had joined the Department of Posts as GDS in 2003.
She had been assessed as Physically Handicapped (PH) by the duly constituted Medical Board, making her eligible for appointment under relaxed standards of selection. A copy of the medical certificate issued to her by the Medical Board is produced at Annexure A-2. This reveals that the applicant has 50% locomotor disability under the moderate category.
2. The applicant has submitted that a competitive examination was notified for selection to the cadre of Postman/Mail Guard by the OA No180/00746/2016 & OA No.180/00285/2019 4 Department of Posts by its circular dated 11.08.2014 which was open to people like her working as GDS. It is further submitted that as per the notification, a copy of which has been produced at AnnexureA-3, in the annexure a vacancy position was indicated in the posts of Postman/Mail Guard. This annexure showed that there was a post for an Orthopedically Handicapped (OH) (by Backlog) candidate in Kottayam Division and another similar OH vacancy in Ernakulam Division among all the 2014 vacancies. The applicant, further, has submitted that she is a candidate who belongs to a backward community. Hence, she is also eligible for reservation under the OBC quota, besides the Physically Handicapped(PH) category. She has produced a copy of a certificate dated 12.02.2015 at Annexure A-4, showing her OBC and Non-Creamy Layer status. It is also submitted that appointments to the posts of Postman/ Mail Guard etc. at that time were being carried out under the Department of Posts (Postman and Mail Guard) Recruitment Rules, 2010. A copy of these Rules has been furnished at Annexure A-5. There was an amendment carried out in these Rules of 2010 by the Department of Posts (Postman and Mail Guards) Recruitment (Amendment) Rules 2012, a copy of which is produced at Annexure A-6. As per these 2012 amended Rules, 50% of the posts would have to be filled up through direct recruitment on the basis of competitive examination limited to Gramin Das Sevaks of the recruiting Division who had worked for at least five years in that capacity as on the OA No180/00746/2016 & OA No.180/00285/2019 5 1st day of January of the year to which the vacancies belong, failing which, from amongst Gramin Dak Sevaks of the neighbouring Divisions/Units on the basis of the said examination, failing which, by direct recruitment from open market.
3. It is submitted that on the basis of the above rules and certificate, the applicant was eligible to have been considered against one of the unfilled vacancies in the neighbouring Postal Divisions reserved for Physically Handicapped. It is also submitted that the PH candidates are entitled to relaxed standards, applicable to SC/ST candidates. The applicant has produced at Annexure A-7 a copy of the proceedings dated 13.06.2011 in this connection. She submits that she was qualified to be appointed against the PH vacancies reserved in her neighbouring Postal Divisions as she belonged to the Changanassery Division. Accordingly, she had submitted an application to the 2nd respondent, Chief Postmaster General, Kerala Circle vide Annexure A-8 dated 04.12.2014. She sought appointment to the post of Postman in the Central Region. She furnished all details in relation to the unfilled PH vacancies in the Postal Divisions neighbouring the Changanassery Division, where she had been working as GDS BPM, Vakathanam South P.O. Further, in response to an RTI application given vide Annexure A-9 dated 04.02.2015, it was made clear that two vacancies OA No180/00746/2016 & OA No.180/00285/2019 6 under the PH (OH) quota, had remained unfilled in Ernakulam and Kottayam Division.
4. The applicant submits that since no action was being taken by the respondents in respect of her representations, she had filed OA No.163/2015, aggrieved by the delay on part of the respondents in effecting her appointment. She claimed therein that consequent to her qualifying in the Competitive Examination held on 12.10.2014 for filling up the vacancies of Postman for the year 2014, she should have been considered for appointment as physically handicapped (OH) belonging to the OBC category. While there were no PH vacancies in Changanassery Division, there was clearly one vacancy each in the neighbouring Kottayam and Ernakulam Divisions which had remained unfilled. During the pendency of OA No.163/2015 in this Tribunal, it appears that the respondents issued an office order appointing the applicant as Postman. A copy of the order dated 18.09.2015 has been produced at Annexure A-10. It is submitted that after successful completion of training, the respondents had appointed her as LR Postman, Kottayam HO, vide order dated 30.09.2015, produced at Annexure A-11.
5. The applicant then submits that all other candidates from the Select List had got appointed in the 1st week of December, 2014 itself. However, she was appointed as Postman only by order dated 18.09.2015. The delay OA No180/00746/2016 & OA No.180/00285/2019 7 in her appointment has resulted in loss of service, including financial benefits. For example, she lost drawing the increment which was granted to all persons in the Select List in July 2015. It was for this reason that she made the representation dated 19.01.2016 addressed to the 4th respondent, Postmaster General, Central Region, requesting him for granting her notional promotion with effect from 01.12.2014. A copy of the representation protesting that she had been appointed as Postman with effect from 03.10.2014 whereas others had been appointed in December 2014 is produced at Annexure A-12. She also submitted that others in the supplementary list had also got appointment with effect from 01.01.2015. It was pointed out that it was only due to administrative delays that she had been denied appointment along with others. In was stated that in Candran Pillai v. Union of India {2015(4) KHC 851(DB) a physically handicapped candidate from Thiruvalla Postal Division had been held eligible to be granted notional appointment with effect from the date of entitlement.
6. It is submitted that the respondents turned down the representation by the impugned order dated 08.06.2016, produced at Annexure A-1. The order denied that there had been administrative delays resulting in a late appointment. The applicant submits that this denial is illegal. The 3rd respondent had failed to consider the settled precedents on the point. In fact, she was eligible right from the beginning to be appointed against the OA No180/00746/2016 & OA No.180/00285/2019 8 PH vacancies in the neighbouring Postal Division. She was eligible not only against the Orthopedically Handicapped vacancies 'OH" but also against the Hearing Handicapped (HH) and Visually Handicapped (VH) vacancies in the neighbouring Postal Divisions in the absence of candidates from the respective categories, there. It is submitted that a large number of vacancies in all these 3 categories for physically handicapped candidates have remained unfilled, merely because of the ignorance of the department officials in applying the Rules. The Department of Posts letter dated 06.01.1992 has allowed reservation applicable in different modes of promotions in respect of each feeder grade. Further, the respondents were bound to reserve 3% of the vacancies in promotion for the PH candidates and it was to be filled among the 3 PH categories by inter se exchange. The applicant submits that as per the DoP&T OM dated 20.11.1989, if the appropriate PH category persons are not available in the feeder grade from which the promotion is being made to the next higher grade of the identified posts, then such inter se exchanges are permitted. The applicant reiterates that the administrative delay has caused prejudice to her and is liable to be rectified. This delay in appointment was not her fault. She had alerted the department and even moved an Original Application ventilating her grievance. However, even after that it had taken around one year to finally settle the grievance.
OA No180/00746/2016 & OA No.180/00285/2019 9
7. The applicant has filed this OA seeking to quash Annexure A-1 rejecting her representation and to direct the respondents to grant her notional appointment with effect from 01.12.2014 along with other consequential benefits as expeditiously as possible. She has strongly relied on the order of this Tribunal in OA No.461/2014 dated 31.05.2016, a copy of which has been produced at Annexure A-13. This Annexure A-13 order was in the matter of Shri Mathew P. Varghese who had been appointed as Postman. He was aggrieved by the delayed order of appointment being given to him after qualifying in the Special Postman examination held on 06.09.2009. This examination had been held for filling up of backlog Ph vacancies for the period 1996-2005. The appointment order for Shri Mathew P. Varghese was dated 13.06.2011. A copy of the order, which has been produced at Annexure A-8 in the linked OA No.285/2019 reveals that these candidates including Shri Varghese, were given appointment after relaxation of the qualifying standards consequent to the Special Postman examination held on 06.09.2009. However, all other candidates who had qualified in the special examination directly without further relaxation of standards were given promotion with effect from 15.10.2009. It had been submitted by the respondents in that matter that since the relaxed standards had been made applicable to the case of Shri Varghese, a Committee constituted for that purpose took its decision to consider his promotion only in 2011. It had been submitted that OA No180/00746/2016 & OA No.180/00285/2019 10 the applicant was not entitled to get notional service with effect from 15.10.2009 like the others. It was contended that the High Power Committee had been convened on 06.06.2011 and only then was the result of the PH candidates who had appeared for the special examination reviewed under the relaxed standards. Hence, the claim of the applicant that his notional service as Postman should be reckoned from 15.10.2009 was without any basis.
8. However, the above contention of the respondents in OA No.461/2014 was refuted by the applicant by pointing out that the relaxed standards for the PH candidates as applicable to SC/ST candidates, should have been followed in 2009 itself. The timing and placement of the applicant only from the date of the subsequent review with effect from 30.06.2011 was unjust and unreasonable as the candidates had participated in the examination in September 2009. The applicant in the present OA points out that this Tribunal then considered the matter in detail in light of the decision of the Division Bench of the Kerala High Court in Chandran Pillai (supra). It was noted in the final order that though the facts are not exactly identical, there also it had been a claim a PH candidate to the post of Postman that was considered. The petitioner therein had been granted notional promotion as Postman from 1997 in a vacancy earmarked for visually handicapped persons in Thirvalla Division. Thus after considering OA No180/00746/2016 & OA No.180/00285/2019 11 all the facts, this Tribunal in its orders in OA No.461/2014 directed that Shri Mathew P. Varghese, the applicant therein, is to be posted in the vacancy which was available in 2009 itself and while not being entitled to get pecuniary benefits on the strength of such ante-dated promotion, he was entitled to continuity of service from 15.10.2009.
9. During oral hearing it was submitted by learned counsel Shri A.V. Vivek, appearing for learned counsel for the applicant Shri V. Sajith Kumar, that the above matter in OA No.461/2014 had been taken up by the respondent before the Hon'ble High Court of Kerala in OP(CAT) No.190/2017. The Division Bench of the Hon'ble High Court in a detailed judgement passed on 04.07.2017 found that the Standing Counsel for the petitioners therein (the Department of Posts) could not substantiate in what way the Department had been prejudiced due to the direction given by the Tribunal. It was noted that though there had been a contention made by the petitioners that the benefit of appointment was given to the respondent/applicant 'only by way of relaxed standards', this, as such, does not appear to be correct, in so far as the standard remained to the same. The position clarified by the Ministry was only that the same yardstick, as applicable to the SC and ST candidates, could be made applicable in the case of the persons belonging to the Physically Handicapped categories as well. The Hon'ble High Court also noted that while passing the verdict, OA No180/00746/2016 & OA No.180/00285/2019 12 the Tribunal had been conscious about the interests of the Department. A rider had been incorporated to make it clear that no financial benefits by way of arrears or allowances should be payable to the OA applicant. As such, the Department cannot be said to be a loser because of the direction. Hence, considering the scope of the verdict passed by the Tribunal, the High Court, in exercise of supervisory jurisdiction under Article 227 of the Constitution, did not find it a fit case to call for interference.
10. Learned counsel for the applicant also brought to our notice during oral submission that a somewhat similar order had been passed by this Tribunal in OA No.721/2016 on 01.06.2021. The matter therein however did not pertain to operation of the PH quota but was in relation to a mistake committed in the evaluation of answer sheets in a selection examination. This was corrected later after which the applicant therein had been appointed by reverting an earlier selected candidate. It was found in this matter that no reason had been put forth by the respondents to deny the right of the applicant for getting a notional appointment with effect from 18.11.2013 the date of entitlement, with fixation benefits alone. Hence, in the light of the above orders/judgements, it was contended that there was no bar in granting notional appointment in this case with effect from the date that others had been granted appointment and had joined the post, OA No180/00746/2016 & OA No.180/00285/2019 13 consequent to the examination conducted on 12.10.2014 vide the Annexure A-3 notification for filing up the Postman vacancies.
11. In addition to the above, learned counsel for the applicant also brought to notice certain office orders in relation to reservation for PH candidates in Group 'C' and 'D posts filled by promotion. The Department of Personnel & Training (DoP&T) in OM No.36035/1/89-Estt(SCT) dated 20.11.1989 had allowed that if the appropriate category of physically handicapped persons were not available in the feeder grade from which the promotion is being made to the next higher grade of the identified posts, then inter se exchange will be permitted. In addition, there were other OMs dated 18.02.1997, as modified by OM dated 04.07.1997 and the OM No.36035/7/95-Estt(SCT) dated 16.01.1998 which had laid down the procedure to be followed in the matter of reservation for PH candidates in cases of promotion. It had been laid down that :-
"(iii) While filling posts by promotion, by selection, against vacancies reserved for physically handicapped, the physically handicapped candidates who are within the normal zone of consideration will be considered. Where adequate number of physically handicapped candidates of the appropriate category of handicap are not available within the normal zone, the zone of consideration may be extended to five times the normal size and the physically handicapped persons falling OA No180/00746/2016 & OA No.180/00285/2019 14 within the extended zone may be considered. In the event of non-
availability of an officer even in the extended zone, the posts could be exchanged with other categories of handicap, identified for the relevant post and the reservation carried forward for the next three recruitment years whereafter it will lapse."
12. Learned counsel for the applicant also relied on DoP&T's OM No.36012/1/2020-Estt(Res-II) dated 17.05.2022, which is dealing with reservation in promotion to persons with Benchmark Disabilities (PwBDs). Clause 8 therein has provided for relaxation in standards of suitability so that if sufficient number of PwBD candidates with benchmark disabilities were not available on the basis of prescribed standards to fill all the vacancies reserved for them, candidates belonging to this category may be selected on a relaxed standard to fill up the remaining vacancies reserved for them, provided they are not found unfit for such post or posts. It was provided that the same relaxed standards should be applied for all the PwBD candidates with benchmark disabilities, irrespective of whether they belong to the unreserved/SC/ST/OBC category. Hence, in the light of these orders issued by the DoP&T, which have applicability on the Department of Posts, as well as on the basis of the orders/judgements issued by this Tribunal and the Hon'ble High Court of Kerala, brought out earlier, there OA No180/00746/2016 & OA No.180/00285/2019 15 was no question of denying the notional promotion to the applicant herein from the earlier date, as prayed for by her.
13. In response the main issue flagged by the respondents is on the ground of the procedure which is laid down for selecting candidates with disabilities especially in neighbouring Divisions. It is accepted that the 2nd respondent had issued the notification for conducting the Limited Departmental Competitive Examination (LDCE) against the vacancies of 2014 for the cadre of Postmen/ Mail guards to be filled by promotion. The method of recruitment for Postmen/Mail guards is 50% on the basis of LDCE by promotion from among the Multi Tasking Staff (MTS) of the Recruitment Division with three years regular service in the grade including service put in if any, against the erstwhile Group 'D' post on regular basis as on 1st January of the year to which the vacancies belong, falling which, for amongst MTS of the neighbouring divisions on the basis of the said examination, failing which, by direct recruitment from open market. The applicant was working in Changanacherry Division. The Annexure A-3 notification had identified two vacancies for the post of Postman, which was notified under the unreserved quota, in the promotional and direct recruitment quota respectively there. Further, the applicant is an OBC candidate as well as physically handicapped, having 50% disabilities. She qualified in the examination only as per the relaxed OA No180/00746/2016 & OA No.180/00285/2019 16 standards applicable to OBC candidates, but could not come in the selection zone. According to Department of Posts (Postman and Mailguard) Recruitment (Amendment) Rules 2012, the qualifying standards for each segment of Part A, Part B and Part C(i) and C(ii) is minimum 10 marks for Open Community(OC), 9 marks for OBC and 8 marks of SC/ST candidates in each segment with the aggregate 40% for OC, 37% for OBC and 33% for SC/ST candidates. The applicant had scored 10 marks in Part A, 9 marks in Part B, 11 in Part C(i) and 14 in Part C(ii), having a total of 44 marks. The applicant had thus qualified under the relaxed standards for OBC, as she secured only 9 marks in Part B. Since there was no vacancy reserved for OBC/PH category, the applicant had not been selected for the post of Postman under the Changanassery Division.
14. It is submitted by the respondents that the applicant did not come under zone of consideration for selection under OBC quota in the neighbouring divisions also on the basis of her performance in the examination. There were other candidates with higher marks in the OBC category who were considered for selection in the OBC vacancies in the neighbouring divisions. It was only on 04.12.2014 that the applicant submitted a representation addressed to the 2nd respondent requesting to consider her against vacancies under the PH category. Meanwhile, she OA No180/00746/2016 & OA No.180/00285/2019 17 also filed OA No.163/2015 alleging inaction on the part of the respondents to consider her against vacancies reserved for physically handicapped in the neighbouring Postal Divisions by applying the relaxed standards applicable to PH candidates. After getting the details regarding all the unfilled vacancies for physically handicapped candidates from all the postal divisions, the 2nd respondent, Chief Postmaster General, Kerala Circle issued his approval for filling such vacancies vide the letter No.Rectt/12-2/OA 2014 dated 01.07.2015. On receipt of approval from the 2nd respondent to fill the unfilled vacancies of PH candidates, the 4th respondent in turn, had conveyed approval for filling up the unfilled vacancy of Postman in the PH(OH) (OBC) category in Kottayam Division. Then the Department Selection Committee was convened on 04.09.2015 and it recommended the selection of the applicant as Postman. Hence, accordingly, the applicant had been appointed vide the 3rd respondent's letter dated 30.09.2015, produced at Annexure A-11 in the OA.
15. The respondents thus appear to state that the entire selection process was conducted in stages or rounds. After every round was completed, they evaluated the position regarding the unfilled vacancies and then embarked on the next round after completing the required formalities. Such rounds of selection are built in the procedure under which candidates are selected in the Divisions according to the category to which they belong. They are OA No180/00746/2016 & OA No.180/00285/2019 18 first considered against the community category they belong in their home division and then in the neighbouring division and finally as per the relaxed standards applicable for the PH/community category, for remaining vacancies of PH candidates. It is to be seen that they have to get approval from the Circle level (CPMG) before the Department Selection Committee (DSC) Meeting is conducted. Accordingly the DSC meeting was finally held on 04.09.2015 to fill up the remaining vacancies from among the surplus qualified GDS though the examination was held on 12.10.2014. This procedure is reflected in the minutes of the meeting of the DSC, produced at Annexure R-7, in response to a specific query asked by this Tribunal during the course of hearing. It is observed that the applicant had made a representation only on 14.12.2014 to the 2nd respondent, requesting for her appointment against the PH(OH) vacancies in Kottayam and Ernakulam Division. This request of the applicant was considered as per para 22 of the Ministry of Personnel, Public Grievance and Pension OM No.36035/3/2004-Estt(Res) dated 29.12.2005, wherein it is stated as follows :-"if sufficient number of persons with disabilities are not available on the basis of the general standard to fill all the vacancies reserved to them, candidates belonging to this category may be selected on relaxed standard to fill all the vacancies reserved for them provided they are found fit for such post or posts." The respondents have furnished a copy of this instruction, which is contained in an Office Memorandum issued by the OA No180/00746/2016 & OA No.180/00285/2019 19 DoP&T in relation to the reservation for persons with disabilities at Annexure R-3.
16. Thus, it is the contention of the respondents that the procedure cannot but be conducted in stages. First, the applicant did not come under zone of consideration for selection under OBC quota in the neighbouring division when initially taken up since there were other candidates with higher marks under OBC category. Those candidates were thus considered for selection against the OBC vacancies in the neighbouring divisions of Changanacherry. Then after getting the details of all the unfilled vacancies for PH candidates in all the Divisions, subsequent to the first round of selection, the 2nd respondent issued approval to fill these vacancies. On receipt of the approval from the 2nd respondent, the 4th respondent has conveyed the approval for filling up of the unfilled vacancy of Postmen under the PH(OH)(OBC) category in Kottayam Division. The Departmental Selection Committee held on 04.09.2015 recommended the selection of the applicant as Postman, Kottayam Division against the unfilled PH(OH)(backlog) vacancy and appointed her as Leave Reserve Postman, Kottayam HO on 30.09.2015. Thus there was no delay in the case as is being contended. Further, the amount of mark concession could not be prescribed for PH-OH candidates from the beginning itself. The matter had to be taken up with the Central Regional Office in Kochi, who OA No180/00746/2016 & OA No.180/00285/2019 20 then called for details of PH candidates who appeared for the examination and their marks. It is to be seen that there were 3 PH candidates from Changanassery Division, but that the applicant was the only qualified candidate. Accordingly, the CPMG had then conveyed approval to fill the unfilled PH-OH Postman vacancy in Kottayam and Ernakulam Division from among the meritorious PH candidates of all the Divisions in the Region. The Departmental Screening Committee then had to examine the vacancy position, applications, mark list and other relevant records before recommending the selection of the applicant, after ensuring that no other qualified OBC(PH) candidates were available in other Postal Divisions. It is, therefore, contended that as a result of the procedure to be followed, there was no delay on the part of the respondents to give her the appointment as is being alleged by the applicant.
17. After examining the records, we are afraid that we cannot accept the detailed but ultimately convoluted and long winded justification for the delay on part of the respondents in the matter. In fact, in this age of communication by email or even 'Speed Post' or any other means, such relevant information that was required at every stage of the round of selection should have been available almost instantly, even if selection is conducted in various rounds. Information regarding the number of qualified physically handicapped candidates in each community/ PH OA No180/00746/2016 & OA No.180/00285/2019 21 category across the entire Circle should have been available with the appropriate authorities at the Regional or Circle level in a short while. It seems to have taken a representation of the applicant to set the ball rolling which cannot be justified in following statutory or other obligations. Much time seems to have been wasted for activities such as writing to various authorities for clarifications, recording marks, assessments etc which should have been done either before the examination itself was notified in line with all the relevant OMs/DoP&Ts instructions etc that we referred to in detail earlier or immediately thereafter so that all the selections could be declared simultaneously.
18. Further, in any case this Tribunal had in principle, earlier considered such issues in the Annexure A-13 order in OA No.461/2014 and allowed antedated notional promotion. This was also upheld by the Hon'ble High Court in OP(CAT) 190/2017. Hence, conducting the selection in a process of first, second or third rounds and using that as an excuse for delaying appointment in the case of PH candidates is not justified. Delays cannot be allowed to recoil against the interest of the applicant herein. Even if the Annexure A-13 order was in relation to 'appointment' to vacancies for PH candidates during 2005, whereas, in the instant case, the LDCE was notified against the vacancies of 2014 to the cadres of Postman/Mail guard to be filled by 'promotion', the principle held in this Tribunal's order in OA No180/00746/2016 & OA No.180/00285/2019 22 OA No.461/2014 would still apply. Candidates who have participated in the same examination held on the same date and declared successful should be considered together with all other candidates who have cleared the examination.
19. Hence, in the light of these considerations, the respondents are directed to give the applicant notional 'promotion', as prayed for, with effect from the date on which, other candidates who appeared in the examination were promoted as Postman. Accordingly, her seniority in the cadre of Postman should also be fixed along with others. This 'promotion' will be a notional one without any pecuniary benefits in pay or allowances to the applicant. In other words, her service will have to be reckoned from the date on which other candidates who had appeared in the same examination for recruitment to the post of Postman/Mail Guard held on 12.10.2014 had been promoted/ appointed to the posts.
20. OA No.746/2016 is, therefore, allowed to the extent as indicated above. We make no further order as to costs.
OA No.285/2019:-
21. We now take up the issue in OA No.285/2019, which in some ways hinges on the decision taken above in OA No.746/2016. It should be noted OA No180/00746/2016 & OA No.180/00285/2019 23 that while OA No.746/2016 was pending consideration, the applicant had approached this Tribunal submitting that there was likelihood of the Department of Posts conducting a LDCE for promotion to the cadre of Postal Assistants/ Sorting Assistants (PA/SA) from among the Postmen/Mail guards/Despatch Riders for vacancies pertaining to 2016-17, 2017-18 and 2018 (1.04.2018 to 31.12.2018). The applicant filed a Miscellaneous Application submitting that she had prayed in OA No.746/2014 to be declared eligible to get her notional service counted with effect from 01.12.2014 along with other candidates who had passed the examination for Postman. The 3rd respondent, Senior Superintendent of Post Office, Kottayam Postal Division had however rejected her application to take part in the LDCE to be held on 09.12.2018 stating that her official date of entry in service was on 03.10.2015. She had, therefore, completed only 2 years 5 months and 28 days as on 04.04.2018 and was not eligible for applying for the said examination for consideration for the relevant vacancy in her case. It was prayed in the MA that this Tribunal direct the respondents to provisionally permit the applicant to write the LDCE scheduled to be held on 09.12.2018 or on any other deferred date. A copy of the notification of the examination was produced as Annexure A-14 in OA No.746/2016 along with the MA No.1294/2018 seeking this interim relief. The matter was considered on 30.11.2018 and after hearing both sides the relief sought for in MA No.1294/2018 was allowed. It was OA No180/00746/2016 & OA No.180/00285/2019 24 declared that the result in the LDCE with regard to the applicant was subject to the final decision in the OA.
22. The OA No.285/2019 have been filed in continuation of the earlier OA No.746/2016. The applicant submits that after this Tribunal had passed its interim order permitting her participation in the LDCE and she had appeared and scored 'reasonably good marks' in the same. However, she was not included in the list of successful candidates by the results released on 27.02.2019, a copy of which has been produced at Annexure A-3 in OA No.285/2019. The applicant's marks have been produced at Annexure A-4. This shows that she had scored a total of 98 marks in the examination held on 09.12.2018, consisting of 30 marks in Paper I and 68 marks in Paper II. It is submitted by the applicant that consequent to the Annexure A-1 notification dated 30.10.2018 for the LDCE for promotion to the cadre of PAs/SAs from Postmen/Mail Guards/Despatch Riders and MTS cadre, the respondents have declared none of the PH candidates as successful. It is submitted that, in spite of around 300 recruitments, none of the vacancies are seen filled from among PH candidates in terms of statutory prescriptions. The applicant by an application under the RTI Act had obtained information pertaining to the reservation process being followed. This has revealed that only 2% of the strength of the Postal Assistants cadre is being occupied by PH employees. It is submitted by OA No180/00746/2016 & OA No.180/00285/2019 25 the applicant that in her own case, that the 30 marks obtained by her is liable to be counted by way of relaxation of the eligibility criteria as the Government of India's OM holds that physically handicapped candidates are entitled relaxed standard of selection, as applicable to SC/ST candidates. A copy of the Government of India's DoP&T's OM dated 04.09.1985 is produced at Annexure A-5.
23. The applicant submits that it is just and reasonable for the respondents, therefore, to relax the minimum eligibility as had been done earlier in her appointment to the post of Postman and to grant all consequential benefits. She is qualified to be appointed as a Postal Assistant in view of the fact that she was entitled to be accommodated against the PH quota by applying reservation for physically handicapped candidates. Even assuming that she was not having sufficient marks, the respondents were bound to apply the relaxed standards in such circumstances when sufficient candidates have failed to clear the Departmental examination. The DoP&T OM dated 04.09.1985 had provided that in case sufficient number of PH candidates were not available on the basis of the general standard to fill all the vacancies reserved for them, such candidates were allowed to be selected under the relaxed standard of selection to make up the deficiency in the reserved quota, subject to the fitness of these candidates for appointment to the OA No180/00746/2016 & OA No.180/00285/2019 26 post/posts in question. Hence, as per the direction of the respondents for appointment to the cadre of Postal Assistant by relaxing the minimum eligibility conditions and extending the norms applicable to the SC/ST employees, she was eligible to be granted appointment to the cadre of Postal Assistant notionally with effect from the date of appointment of other selected candidates, with other consequential benefits.
24. The applicant also produced subsequently at Annexure A-9, a copy of the order dated 26.06.2019 issued by the Department of Posts. By this order the competent authority had approved relaxation in qualifying marks in respect of EWS and PwD candidates for appointment to the post of Multi Tasking Staff, Postman, Main Guard, Postal Assistant and Sorting Assistant. The marks for PWD candidates to be qualified were shown as 33 % in this order. The respondents filed a reply statement where they mainly contended that there was no reservation for PH candidates in promotion quota in the examination which was conducted for recruitment for Postal Assistant/Sorting Assistant cadre. They submitted that the DoP&T OM dated 15.01.2018, produced as Annexure R-3, had dealt with the issue of reservation for persons with benchmark disabilities. It was indicated that further relaxed standards should be applied for all candidates with benchmark disabilities, whether they belong to unreserved/SC/ST/OBC and that no further relaxation of standards will be OA No180/00746/2016 & OA No.180/00285/2019 27 considered or admissible in favour of any candidate from any category whatsoever. Another issue pointed out by them was that the applicant had not completed sufficient service for qualifying to appear in the examination for promotion. The applicant was working as a Postman in the Kottayam Head Post Office only with effect from 03.10.2015. Hence she had only put in 2 years 5 months and 29 days service as on 01.04.2018, while the minimum service required for a candidate was 3 years as on 1st day of April, 2018, if she was competing for vacancies for the year 2018 i.e. from 01.04.2018 to 31.12.2018. As is obvious this point is however no longer applicable in view of our finding in the OA 746/2016 that her service has to be notionally considered with effect from December 2014 along with others selected for the post of Postman. If that is considered, she obviously would complete 3 years of service before 01.04.2018.
25. The applicant filed a rejoinder in relation to the point made by the respondents in their reply statement about reservation in promotion vide Annexure R-3. It was submitted that there was no prohibition for reservation in promotion in the contents of Annexure R-3. Admittedly, the post of Postal Assistant was one identified for manning by physically handicapped employees. It is contended that the department had been providing reservation right upto 2017. Such reservation in appointment for physically handicapped employees was initially introduced through OA No180/00746/2016 & OA No.180/00285/2019 28 administrative instructions. It later got statutory recognition through The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. There were statutory provisions enabling reservation in all modes of recruitment, including direct appointment and promotion. Presently, more elaborate provisions have been brought into enactment by The Rights of Persons with Disabilities Act, 2016. This takes care of the rights of PH employees. Moreover, in its judgement in Rajeev Kumar Gupta and Ors. v. Union of India and Ors {(2016) 13 SCC 153} the Hon'ble Supreme Court had held that reservation shall be followed in all modes of recruitment including direct recruitment and promotions. Therefore, to rely on Annexure R-3 to deny her reservation in promotion to the post of Postal Assistant was not just. The applicant was seeking relaxation in minimum standards as a PH candidate, which was permissible even as per Annexure R-3. It is submitted that even assuming that relaxation of standards in favour of SC/ST Group 'C' officials are withdrawn, then relaxed standards permissible in Annexure R3 dated 15.01.2018 would still come in aid for the claim made by the applicant.
26. The respondents have however again reiterated in the additional reply statement filed on 06.09.2022 that, as per the Postal Directorate letter dated 18.10.2019 produced at Annexure R-6 along with additional reply statement, presently reservation was not available to PwD candidates OA No180/00746/2016 & OA No.180/00285/2019 29 in promotion to higher level posts. Further, they again reiterated that, as per the eligibility conditions, the applicant was not eligible to appear in the LDCE held on 09.12.2018 for promotion to the cadre of Postal Assistant/Sorting Assistant from Postman/Mail Guard and MTS. Moreover, the applicant was an OBC candidate. The qualifying marks for UR/OBC candidates was 38. However, she had obtained only 30 marks in Paper-I in the examination and did not qualify under the OBC standards. It was contended that the Apex Court judgement in the case of Rajeev Kumar Gupta (supra) was on the basis of the PwD Act 1995. It had been directed the Government should extend three percent reservation to PwD in all identified posts in Group 'A' and Group 'B', irrespective of the mode of filling of such posts. The PwD Act of 1995 has already been superseded by Act of 2016 and by the Annexure R-3 instructions. Therefore, it is contended that the Apex Court judgement mentioned by the applicant have no relevance in the instant case. It is submitted that 50% of the PAs/SAs vacancies are to be filled by promotion through a LDCE from Postman/Mail Guard and MTS as per the PA/S Recruitment Rules, 2012. Further the relaxation of standard of suitability mentioned in para 11 of Annexure R-3 was only applicable for direct recruitment vacancies. As per the said OM regarding the quantum of reservation in case of direct recruitment, 4% of the total number of vacancies were to be filled up by direct recruitment. This was not applicable to the instant case which OA No180/00746/2016 & OA No.180/00285/2019 30 relates to promotion to the cadre of Postal Assistants from Postman by Departmental Competitive examination, for the 50% promotional quota vacancies. However, this stand taken by the Department in relation to a lack of reservation in promotion for PH candidates, under 50% quota for promotion to the post of PAs/SAs from Postman/Main Guard and MTS is to be considered in the light of subsequent pronouncements by the Hon'ble Apex Court. Learned counsel for the applicant, Shri A.V. Vivek, has brought to our notice the judgement of the Hon'ble Supreme Court in State of Kerala and Others v. Leesamma Joseph {(2021) 9 SCC 208}. After an examination of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation Act, 1995, the Hon'ble Supreme Court had held that reservation in promotion cannot be denied to persons with disabilities. Further, such reservation cannot be confined to the initial stage of induction in service resulting in stagnation of disabled. It was also clarified that the Act of 2016 had also not taken care of how to deal with the aspect of reservation in promotion. The principles clarified were required as a large number of cases may still arise in the context of the 1995 Act. It was held that operation of reservation and computation must be made in reference to total number of vacancies in the cadre strength and that no distinction should be made between posts to be filled up by direct recruitment and by promotion. Rules must be framed for providing for promotion from feeder cadre to promotional post and posts must be OA No180/00746/2016 & OA No.180/00285/2019 31 identified in terms of Section 32 in promotional cadre capable of being filled by persons with disabilities, as per directions issued in Rajeev Kumar Gupta (supra) and also Siddaraju, {(2020) 19 SCC 572}.
27. It is contended by the learned counsel for the applicant that in light of the above pronouncements of the Apex Court, the contentions made by the respondents that reservation in promotion to the post of PAs/SAs from the post of Postman was not allowed under the Rules can no longer be said to be applicable. Leesamma Joseph (supra) had clearly laid down in the light of the earlier 1995 Act, as well as the later 2016 Act, how to deal with the aspect of reservation in promotion. Hence, the respondents should be directed to consider the case of the applicant under the relaxed standards as applicable in her case. She should be given the said promotion to the post of Postal Assistant if she qualifies.
28. We have considered the above issues carefully. A full decision in the matter cannot be taken without considering all aspects. We note that the direction of the Hon'ble Supreme Court in Leesamma Joseph (supra) applies while considering such cases. However, all information in relation to the number of PH candidates who appeared in the LDCE along with type of disabilities are not available with us. In such a situation all that is possible is to direct the respondents to reconsider the applicant's case in the light of the above referred pronouncements of the Hon'ble Supreme Court.
OA No180/00746/2016 & OA No.180/00285/2019 32 Further, having declared in OA 746/2016 that her service has to be considered along with others who appeared in examination for Postman in 2014, the issue of lack of qualifying service is no longer relevant.
29. Hence, in light of the above, we direct as follows:-
(a) The applicant may submit a comprehensive representation with reference to the contentions made by her and in reference to the judgements of the Hon'ble Supreme Court relevant to the case to the appropriate authority among the respondents for reconsideration of her case for promotion to the post of Postal Assistant on the basis of her performance in the LDCE held for promotion to the post of PAs/SAs from among the Postmen/ Mail Guards. This representation may be submitted by the applicant within a period of one month from the date of issue of this order.
(b) The respondents are given a further period of two months from the date of receipt of the above representation to consider the case of the applicant in light of the issues brought out in the same, along with the relevant pronouncements of the Hon'ble Supreme Court referred to earlier and to take a decision in the matter. This decision may be communicated to the applicant in writing within the said period of two months from the date of receipt of representation.
OA No180/00746/2016 & OA No.180/00285/2019 33
30. OA No.285/2019 is accordingly disposed of with the above directions. The right of the applicant to further pursue the matter or seek legal remedies appropriately in light of the order of the respondents is protected. We make no further order in relation to costs.
(Dated this the 1st day of April, 2024)
K. V. Eapen Justice Sunil Thomas
Administrative Member Judicial Member
va
OA No180/00746/2016 &
OA No.180/00285/2019
34
List of Annexures in OA No.746/2016
Annexure A1- A true copy of the Memo No.ST/90-4/2014 dated 8.6.2016 issued by the Postmaster General, Central Region, Kochi Annexure A2- A true copy of the Medical Certificate issued by the Medical Board, District Hospital, Kottayam Annexure A3- A true copy of the Notification No.Rectt/12-2/2014 dated 11/08/2014 issued by the 2nd respondent Annexure A4- A true copy of the Certificate issued by the Tahsildar, Kottayam dated 12/02/2015 Annexure A5- A true copy of the Department of Posts (Postmen/Mail Guards/Head Mail Guards) Recruitment Rules 2010 issued as per the Notification dated 16/12/2010 published in Gazette of India : Extra ordinary Annexure A6- A true copy of the amendment Notification of G.S.R 511(E) dated 28/6/22012 published in Gazette of India Extra Ordinary by the 1st respondent Annexure A7- A true copy of the proceedings No.Rectt. 12-2/PH/Review dated 13/06/2011 issued by the 2nd respondent Annexure A8- A true copy of the application dated 04/12/2014 submitted by the applicant to the 2nd respondent along with English Translation Annexure A9- A true copy of the Letter No.CPT/RTI/R-2/2015 dated 04/02/2015 Annexure A10- A true copy of the Order No.B2/Rectt/Postman/2014 dated 18/09/2015 issued by the 3rd respondent Annexure A11- A true copy of the Order No.B2/Rectt/Postman/2014 dated 30/09/2015 issued by the 3rd respondent Annexure A12- A true copy of the representation dated 19/01/2016 submitted by the applicant to the 4th respondent Annexure A13- A true copy of Order dated 31/05/2016 in OA 461/2014 of the Central Administrative Tribunal, Ernakulam OA No180/00746/2016 & OA No.180/00285/2019 35 Annexure A14- A true copy of the memo no.B1/40/LGO Exam dated 19/11/2018 issued by the 3rd respondent **** Annexure R1- True copy of the letter issued by the 2nd respondent vide letter no.Rectt/12-2/OA 2014 dated 01-07-2015 Annexure R2- True copy of the letter issued by the 3rd respondent vide letter no.B2/Rectt/Postman/2014 dated 30.09.2015 Annexure R3- True copy of the OM No.36035/3/2004-Estt (Res) dated 29.12.2005 issued by the Ministry of Personnel, Public Grievance and Pension Annexure R4- True copy of the application dated 21.08.2014 submitted by the applicant for the post of Postman/Mail Guard Annexure R5- True copy of the Minutes of Departmental Screening Committee meeting held on 9.12.2014 for filling up of the unfilled vacancies for the year 2014 Annexure R6- True of letter No.ST/90-4/2014(Pt) dated 15.12.2014 issued by the Assistant Director (Staff) showing the details of filling up of unfilled vacancies of Postman by surplus qualified candidates of examination held on 12.10.2014 Annexure R7- True copy of the minutes of Departmental Screening Committee held on 4.9.2015 .
**** List of Annexures in OA No.285/2019 Annexure A1- A true copy of the Notification No.Rectt/10-3/2018 dated 30.10.2018 issued on behalf of the 2nd respondent Annexure A2- A true copy of the Proceedings No.Rectt.10-3/2018 dated 12.11.2018 issued by the office of the 2nd respondent Annexure A3- A true copy of the Notification No.Rectt/10-3/2018 dated 27.02.2019 issued on behalf of the 2nd respondent Annexure A4- A true copy of the mark sheet of the applicant issued as per Proceedings No.Rectt/10-3/RTI/LGO/2018 dated 28.3.2019 from the office of the 2nd respondent OA No180/00746/2016 & OA No.180/00285/2019 36 Annexure A5- A true copy of Government of India order No.Per & Trg., O.M No.14016/85-Estt.(SCT) dated 04.09.1985 issued by the 1st respondent Annexure A6- A true copy of the Medical Certificate issued by the Medical Board, District Hospital, Kottayam, dated 28.01.2003 Annexure A7- A true copy of the Order No.B2/Rectt/Postman/2014 dated 18/09/2015 issued by the 3rd respondent Annexure A8- A true copy of the Proceedings No.Rectt 12-2/PH/Review dated 13/06/2011 issued by the 2nd respondent Annexure A9- A true copy of the order No.17-08/2018-SPB-I dated 26th June 2019 issued by 1st respondent **** Annexure R1- True copy of the application dated 4.11.2018 submitted by the applicant Annexure R2- True copy of CPMG Kerala letter No.Rectt/10-3/2018 dated 30.11.2018 Annexure R3- True copy of DoP&T OM No.36035/02/2017-Estt(Res) dated 15.01.2018 Annexure R4 - True copy of Postal Directorate letter no.4-13/2015-SPB-I dated 08.04.2016 Annexure R5- True copy of Postal Directorate letter dated 01.04.2019 Annexure R6- True copy of Postal Directorate letter dated 18.10.2019 Annexure R7- True copy of PA/SA Recruitment Rules 2015 Annexure R8- True copy of the application dated 21.08.2014 submitted by the applicant for the post of Postman/Mail Guard Annexure R9- True copy of the Minutes of Departmental Screening Committee meeting held on 9.12.2014 for filling up of the unfilled vacancies for the year 2014 Annexure R10- True copy of letter No.ST/90-4/2014(Pt) dated 15.12.2014 issued by the Assistant Director (Staff) showing the details of filling up of unfilled vacancies of Postman by surplus qualified candidates of examination held on 12.10.2014 OA No180/00746/2016 & OA No.180/00285/2019 37 Annexure R11- True copy of the minutes of Departmental Screening Committee held on 4.9.2015 ***** OA No180/00746/2016 & OA No.180/00285/2019