Central Administrative Tribunal - Ernakulam
Issac.K.J vs Superintendent on 23 January, 2017
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.902/2013,
Original Application No.180/00082/2014,
Original Application No.180/00083/2014
& Original Application No.180/01117/2014
Monday, this the 23rd day of January, 2017
CORAM:
HON'BLE Mr.JUSTICE N.K.BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER
Original Application No.902/2013
Issac.K.J., S/o.late Joseph.K.K.,
Working as Gramin Dak Sevak Mailman,
Sub Record Office, RMS 'EK' Division, Thrissur.
Residing at Kannanthara House, Anjeri P.O.,
Society Road, Thrissur - 680 006. . . . Applicant
(By Advocate Mr.O.V.Radhakrishnan,Sr. with Mr.Antony Mukkath)
Versus
1. Superintendent, RMS 'EK' Division,
Ernakulam, Cochin - 682 011.
2. Postmaster General,
Central Region, Kochi - 682 018.
3. Chief Postmaster General,
Kerala Circle, Thiruvananthapuram - 695 033.
4. Union of India represented by its Secretary,
Ministry of Communications,
New Delhi - 110 001. . . . Respondents
(By Advocate Mr.Sinu G Nath,ACGSC)
Original Application No.180/00082/2014
N.C.Unnikrishnan, S/o.late Chathan,
Working as Gramin Dak Sevak Mail Deliverer,
Kottanellur BO, Vellangallur SO, Irinjalakkuda Division.
Residing at Nedumpilly House, Ponjanan P.O.,
Kattoor Via, Irinjalakkuda, Thrissur - 680 7202. . . . Applicant
(By Advocate Mr.O.V.Radhakrishnan,Sr. with Mr.Antony Mukkath)
Versus
1. Superintendent of Post Offices,
Irinjalakkuda Division,
Irinjalakkuda - 680 121.
2. Chief Postmaster General,
Kerala Circle, Thiruvananthapuram - 695 033.
3. Union of India represented by its Secretary,
Ministry of Communications,
New Delhi - 110 001. . . . Respondents
(By Advocate Mr.C.P.Ravikumar,ACGSC)
Original Application No.180/00083/2014
Sosamma Cherian, D/o.P.V.Cherian,
Working as Gramin Dak Sevak Mailman,
Sub Record Office, RMS 'TV' Division, Thiruvalla.
Residing at Valuparambil House,
Thirumoolapuram P.O., Thiruvalla - 689 115. . . . Applicant
(By Advocate Mr.O.V.Radhakrishnan,Sr. with Mr.Antony Mukkath)
Versus
1. Senior Superintendent,
RMS 'TV' Division,
Thiruvananthapuram.
2. Chief Postmaster General,
Kerala Circle, Thiruvananthapuram - 695 033.
3. Union of India represented by its Secretary,
Ministry of Communications,
New Delhi - 110 001. . . . Respondents
(By Advocate Mr.E.N.Hari Menon,ACGSC)
Original Application No.180/01117/2014
K.Unnikrishnan, S/o.late Raman Nair,
Working as Gramin Dak Sevak Stamp Vendor,
Perinthalmanna Mukhya Dak Ghar,
Malappuram District - 679 322.
Residing at Sathyasadanam, Anamangad,
Malappuram District - 679 357. . . . Applicant
(By Advocate Mr.O.V.Radhakrishnan,Sr. with Mr.Antony Mukkath)
Versus
1. Superintendent of Post Offices,
Manjeri Division, Manjeri - 676 121.
2. Chief Postmaster General,
Kerala Circle, Thiruvananthapuram - 695 033.
3. Union of India represented by its Secretary,
Ministry of Communications,
New Delhi - 110 001. . . . Respondents
(By Advocate Mr.N.Anilkumar,Sr.PCGC [R])
These applications having been heard on 5 th January 2017, the
Tribunal on 23rd January, 2017 delivered the following :
ORDER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER Applicants in all four O.As (Nos.902/2013, 82/2014, 83/2014 & 1117/2014) are seeking relief of appointment against abolished vacancies of Group D in Irinjalakkuda Division O.A.No.82/2014, Perinthalmanna Division O.A.No.1117/2014, RMS TV Division O.A.No.83/2014 and RMS EK Division O.A.No.902/2013. Applicants argue that there were unfilled vacancies in the above Divisions prior to introduction of Department of Posts MTS Recruitment Rules 2010 dated 20.12.2010 and these ought to have been filled as per 2002 Recruitment Rules by GDS/Casual Labourers. The argument of the applicants in the O.As will succeed if it is established that there were unfilled vacancies and secondly if it is established that they have a claim to the vacancies on the ground of being promoted to the post and not being appointed as direct recruits. Since all O.As are having similar facts and similar prayer we are taking O.A.No.1117/2014 as the lead case to cite facts and arguments in this order.
2. Applicants prayer is to declare that the vacancies abolished and arising prior to 2010 Recruitment Rules be filled as per High Court of Kerala orders in W.P.(C) No.28574 of 2009 which held that there is no need to obtain clearance from the Screening Committee to fill up these posts as applicants are to be considered as promoted to these posts. The 2/3 cut in vacant posts applied by Government of India was applicable to direct recruitment only and not to posts arising out of promotion.
3. We would at the outset like to take note that the matter of unfilled/abolished vacancies has come up before this Tribunal and High Court in various O.As 312/2008 and 16 connected cases, W.P.(C) No.20574/2009, and Contempt Petition No.95/2009 and connected cases, and the matter has been extensively argued before final orders were passed. In O.A.No.312/2008 and connected cases the Tribunal in para 64 had held as follows :
'64. In view of the above, all the O.As are allowed in the following terms. It is declared that there is absolutely no need to seek the clearance of the Screening Committee to fill up the vacant posts in various Divisions which are to be filled up from out of GDS and Casual Labourers as per the provisions of the Recruitment Rules, 2002. Respondents are directed to take suitable action in this regard, so that all the posts, majority of which appear to be already manned by the GDS themselves working as 'mazdoors' at extra cost, are duly filled. In a few cases (e.g. O.A.No.118/2008), the claim of the applicants is that they should be considered against the vacancies which arose at that time when they were within fifty years of age. In such cases, if the applicants and similarly situated persons were within the age limit as on the date of availability of vacancies, notwithstanding the fact that they may by now be over aged, their cases should also, if otherwise found fit, be considered subject, of course, to their being sufficiently senior for absorption in Group D post. If on the basis of their seniority, their names could not be considered due to limited number of vacancies and seniors alone could considered for appointment against available vacancies, the respective individuals who could not be considered be informed accordingly. Time calendared for compliance of this order is nine months from the date of communication of this order.'
4. In the C.P.No.95/2009 filed for non implementation of the above order the following paragraphs draw our attention :
'11. In their affidavit dated 25.4.2011, which was filed on 18.5.2011, the respondents have given various statistics as to the number of Group D posts abolished from 2002-2005 and had in para 6 and 7 thereof have stated as under :-
'6. This Hon'ble Tribunal may be pleased to see that the above position furnished above pertaining to RMS TV Division and also to the Circle as a whole, was accepted and upheld by this Hon'ble Tribunal on 27.10.10 when, after hearing the respondents personally, the Tribunal had given an option to the respondents either to revive the 286 posts which stood abolished for the period from 2002 to 2005 or to fill up the 97 posts which had arisen in the year 2009. As this Hon'ble Tribunal may realize, any attempt to revive the abolished posts would pose serious problems to the department and the services it offers to the public, Admittedly, since 2002, this department, like all other Central Government Departments, has been right sizing its man power in the Group C and Group D cadres. As part of this exercise, certain vacancies were asked to be filled up and certain others abolished. For the period from 2002 to 2005, specific orders were received (Annexure R-10 to R-13) identifying the number of posts to be filled in the Group D cadre as well as in the case of PA and postman cadre and the permitted posts were filled up in all these cadres. Where permission was not received for filling up, the posts were treated as abolished and no substitutes were arranged. In places where the posts of PAs/SAs, Postman and Mail Guard were abolished as per Government policy, the work has been managed through the induction of technology, by revising business processes, rationalizing existing methods of operations, re-distribution of responsibilities and also by providing additional manpower support through periodical reviews by re-deployment of existing manpower or creating GDS posts to supplement the postman cadre. In the case of Group D posts, where also work requirements had undergone some changes due to technology induction and revised modes of operation, the posts abolished were not necessarily the ones which fell vacant, but those where the work load was not at all, or not fully, justified. In cases where some justification was experienced, the department conducted establishment reviews to assess the workload in the Group D cadre and provide additional support by creating new GDS posts. It is submitted that periodical establishment reviews are normally conducted once in three years in all departmental SOs but where there is need for assessing a sudden increase in workload due to unusual factors, there is provision to do so without adhering to the periodicity. On the basis of the establishment reviews conducted in this manner, 92 GDS posts have been created based on justified workloads, against the 286 Group D posts abolished. All these posts were filled up thereafter and the GDS thus appointed are now working against the said 92 posts. Therefore, any decision to revive these Group D posts which were abolished between 2002 and 2005, would involve the issue of what is to be done with the 92 GDS posts that were subsequently created to man the justified workload and the incumbents who have been appointed against these posts following all due procedures.
7. It is further submitted that the revival of these posts also involves certain administrative problems which needs to be addressed. In the first place, based on the establishment reviews, as mentioned above, there is no justification for the posts based on the prescribed parameters for assessing workload. Further, since these posts have not been operated for years together, administrative procedures require that these posts be got formally 'revived' with the approval of the competent authority, viz; the Ministry of Finance. This has been clearly spelt out in the directions received from the Directorate. Any proposal to revive a post requires matching savings to be offered. As all the vacant Group D posts have been ordered to be filled up by this Tribunal, the department cannot offer the required matching savings from the Group D cadre.
Hence, to revive these 286 Group D posts, which are no longer justified as per the subsequent establishment review and the creation of the 92 GDS posts, matching savings will have to be offered primarily from the Postal Assistant/Sorting Assistant cadre, because abolishing or surrendering any post of postman to revive a Group D post could create considerable difficulties in managing the delivery work. As this Tribunal would realize, the delivery area of each post office is fast expanding due to the high paced urbanization and the department is already finding it difficult to manage the work with the existing staff. Any further depletion in postman cadre will jeopardize the smooth functioning of the department. It would also be difficult for the Circle to surrender more PA/SA posts out of the already depleted cadres. The respondents are already facing difficulty in managing the 1502 post offices in the Circle, 27% (409 Pos) of which are single handed, especially when, even majority of the two-handed and three-handed post offices are currently functioning as single handed offices. With the introduction of welfare schemes like Child Care Leave etc, the department is now facing acute shortage of staff in many of its offices to extend such benefits to the staff without hampering customer service and any further reduction in the sanctioned strength of the Postal Assistant/Sorting Assistant cadre would prove very detrimental to the quality of services offered by the department. It was taking into account all these entire practical and administrative difficulties that the respondents took a decision to fill up the 97 vacancies which arose in the year 2009 exercising the option given to the department by this Hon'ble Tribunal by its interim order dated 27.10.10. In compliance with the said order, the respondents had initiated action to fill up the vacancies of 2009 by following the old Group D Recruitment Rules and the process of filling up the 97 Group D vacancies which had arisen in 2009 has been completed. In all a total of 377 posts out of the available 424 posts have been filled up by the respondents and the eligible officials are now in position in these posts.'
12. The senior Central Government Standing Counsel has reiterated the fact that this Tribunal has given two options as could be seen vide order dated 27.10.2010 and the latter of the same which is more practicable and pragmatic has been followed and thus, there is no disobedience, much less willful disobedience.
13. Counsel for the applicants on the other hand has submitted that an option which does not meet with the earlier direction given by the Tribunal and upheld by the High Court could not be the intention of the Tribunal at all, nor could such a modification is permissible under law.
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15. In the instant case, the act on the part of the respondents cannot be said to be such that there has been a deliberate disobedience. At least so far! The latitude given vide order dated 27.10.2010 cannot in fact change the original colour of the order of this Tribunal as upheld by the High Court. As stated in Ved Prakash Joshi (supra) Right or Wrong the order has to be complied with.
16. Once the Apex court has held that there cannot be any variation in the order to be complied with, the option made available to the respondents vide order dated 27.10.2010 has to be harmoniously construed with the spirit of the original order. Even in that order dated 27.10.2010, the mandate is that all the applicants shall be accommodated. Thus, when harmoniously read, all that the said order meant was only that attempt should be made to locate vacancies and if vacancies are not available, then other vacancies should be diverted. That far and no further.
17. Now, certain basic facts in the act of the respondents should be addressed here. First, they have been harping upon the fact of a number of posts having been abolished. True, these posts would have been abolished at the material point of time. But it was at a juncture when the posts to be filled up by the GDS or Casual Labourers were treated as Direct Promotion and provision for abolition of posts is available for direct recruitment vacancies only and not for any other category of vacancy. However, the High Court itself has declared that there is no question of abolition of posts in respect of vacancies tenable by the applicants. This declaration after perusing the documents produced by the Respondents leads to a situation that the posts were not abolished. For such a declaration takes retrospective effect. For, when the Court clarifies a legal position, the same applies not only for the future but also has the retrospective effect. In this regard the decision of the Apex Court in the case of Rajasthan State Transport Corporation vs Bal Mukund Bairwa (2), (2009) 4 SCC 299 is relevant. In that decision, the Apex Court has observed -
' 52. As has been pointed by Justice Cardozo, in his famous compilation of lectures The Nature of the Judicial Process, that in the vast majority of cases, a judgment would be retrospective. It is only where the hardship is too great that retrospective operation is withheld. A declaration of law when made shall ordinarily apply to the facts of the case involved.'
18. Thus, at this juncture, there is no meaning in harping upon the same point of the post having been abolished. The said abolition even if made by a positive act, becomes non-est and in fact there must be automatic resurrection of the abolished posts. This is the legal position in so far as the availability of post is concerned. As a matter of fact at one point of time referring to certain other documents filed in a different O.A the SCGSC has given the information that the department made earnest attempt in getting the posts which were earlier abolished, revived and as many as 424 posts in various divisions pertains to Group D posts in Kerala Circle from 2002-2009 and these were brought back to existence. And on the basis of seniority all the GDS and on Division basis these posts are also being filled up.
5. The Tribunal having made the above observations, drew the following conclusion :
21. In view of the above, taking judicious note of the fact that so far no contumacious act has been committed, we are inclined to close these Contempt Petitions, but with the firm direction that in so far as implementation of the earlier order dated 15.12.2008 which stands upheld by the High Court as early as in 2009, action should be taken to fill up all the vacancies meant for GDS and Casual labourers. The 424 posts referred to by the respondents shall all be filled up. There shall be a time bound plan in this regard and progress thereof shall be monitored by the Chief Post Master General. Adequate budgetary provisions should therefore be made to cater for the salary and other benefits to the incumbents. The entire action of consideration of the cases of applicants and similarly situated persons in Kerala Circle should be completed within a period of six months. This part of the order is passed invoking the provisions of order 24 of the CAT Procedure Rules, 1987, for proper implementation of the order of the Tribunal. No cost.b�
6. Hence in the Contempt Petition's concluding para reference is made filling up 424 posts. Applicants argue that Tribunal had held that the approval of the Screening Committee as directed by Government of India for filling up the Direct Recruitment posts was not necessary and quote paragraph 11 of order in O.A.No.901/2003 wherein the Tribunal held :
' We have carefully gone through the said Memorandum (read Screening Committee Memo) and are of the view that this pertains to direct recruitment. The Office Memorandum makes it abundantly clear that direct recruitment would be limited to 1/3 of the direct recruitment vacancies arising in the year subject to a further ceiling that this does not exceed one percent of the total sanctioned strength of the department.' Applicants and the Tribunal proceeded on the assumption that the movement from GDS to Group D/Postman was a promotion and hence abolition of 2/3 vacancies and filling up 1/3 vacancies arising in a year was not applicable. OM referred to above in the second line is O.M dated 16.5.2001 marked as Annexure R-10 in the O.A. According to Group D Recruitment Rules dated 23.1.2002 75% of the Group D vacancies are earmarked for GDS and 25% for Casual Labour. We do not wish to dwell at length on the MTS Recruitment Rules of 2010, as applicants are not making a claim against these rules. Their claim arises out of vacancies which arose and accrued during the operation of the 2002 Recruitment Rules.
7. Respondent submits that the optimization of Direct Recruitment to civilian posts was done on the basis of Department of Personnel & Trainings OM No.2/8/2001-PIC dated 16.05.2001 wherein all Ministries/Departments were requested to formulate Annual Direct Recruitment Plan for vacancies from 2001 onwards. This was done to commensurate with the Budget Speech of the Finance Minister and on the recommendations of Expenditure Reforms Committee. Each Ministry/Department was advised to prepare an ADRP covering all cadres. The above OM inter-alia prescribed :-
(i) Direct Recruitment should be limited to 1/3rd of the Direct Recruitment vacancies arising in a year, subject to a further ceiling that this does not exceed 1% of the total sanctioned strength in the Department inclusive of attached and subordinate offices.
(ii) While examining the vacancies to be filled up, the functional requirements of the organization are to be critically examined, so that there is flexibility in filling up vacancies in various cadres, depending on their relative functional need. In case an organisation needs certain posts to be filled up for safety/security/operational considerations, a corresponding reduction in direct recruitment in other cadres of the organisation may be done with a view to restricting the overall direct recruitment to 1/3rd of vacancies meant for direct recruitment subject to the condition that the total vacancies proposed for filling up are within the 1% ceiling.
8. In accordance with the above directions of the nodal ministry, all the vacancies to the cadre of Group D for the period from 2001 to 2008 could not be filled up, as appointment to the cadre of Group D from GDS was considered as direct recruitment by the respondent. A number of OAs was filed before the CAT, Ernakulam from 2003 onwards. A group of 37 OAs (OA No. 312/2008 and connected cases) was disposed of by the Tribunal vide common order dated 15.12.2008 relying on its earlier decisions in OAs like 977/2003, 115/2004, 277/2004, 346/2005 etc., holding that there was no need to seek the clearance of the Screening Committee to fill up the vacant posts in various Divisions which are to be filled up by GDS and casual labourers as per the provisions of the Recruitment Rules, 2002. Applicants argue that a number of contempt petitions as cited in pre-para 5 were filed by the applicants covered by the common order dated 15.12.2008 alleging disobedience of the order of the Tribunal. The officers representing the respondents appeared before the Tribunal and submitted that 286 and odd vacancies of Group D had already been abolished and explained the inability to fill up those vacancies that had already been abolished. 97 vacancies existed for the year 2009. It was also stated that the vacancy position from 2000 to 2009 are 431 vacancies including 286 vacancies alleged to have been abolished. This Tribunal, after hearing the respondents in detail, passed an interim order on 27.10.2010 marked as Annexure R1
(m) wherein the Tribunal held as follows :
With regard to the first question of abolition of the posts, as per the finding entered by the Hon'ble High Court of Kerala in Writ Petition No.28574 of 2009 and connected Writ Petitions, it is categorically held that there shall not be any question of abolition of posts to be filled up for the promotion quota as the abolition question comes only to the direct recruitment quota. Further the Hon'ble High Court has held that there is no question of any clearance by the Screening Committee to fill up the vacancies. It is also found by the Hon'ble High Court that there is no records to show that these posts were abolished on the basis of any order given by the competent authority and even if any abolition has been now ordered, it is only applicable to the direct recruitment quota. With the above finding entered by the Hon'ble High Court of Kerala the vacancy position existed from 2000 to 2009 are 431 vacancies including 286 vacancies alleged to have been abolished. If the Department wants to comply with the order passed by this Tribunal the Department shall take either to revive all the vacancies abolished without permission of law or without an order passed by the competent authority with regard to the promotion quota. Further it is also held that if they are not in a position to fill up the vacancies already existed they should adjust the vacancies now arisen during the year 2009 ie. 97 vacancies.
9. Respondent submits that in accordance with the option given by the Tribunal by the above interim order, the matter was examined in detail by the Circle and it was found that revival of the 286 posts already abolished involved certain administrative problems and any proposal to revive a post required matching savings to be offered. Hence, taking into account all the practical and administrative difficulties, it was decided to fill up the 97 vacancies which arose in the year 2009 by following the old Group D Recruitment Rules. Further, as part of implementing the common order of the Tribunal in OA 312/08 and other connected cases, an elaborate mechanism was put in place to scrutinize and monitor all related documents and facts and cross tally the number of vacancies from the date of their occurrence, the number of vacancies approved for filling as per the optimization scheme, the actual number of persons in position and the total sanctioned strength of the Group D cadre in each Division. After tallying these figures from 2002 to 2008, revised rosters were prepared and lists of eligible persons identified in each Division and given appointment as Group D from the date of occurrence of each vacancy, strictly according to seniority, as a onetime measure, in compliance with the orders of this Tribunal. The appointments were given notionally from the date of occurrence of vacancies. A total of 327 posts were thus initially identified to be filled up across the Circle for the period from 2002 to 2008. Subsequently, as per the specific direction of the Tribunal, over and above the said 327 posts, 97 more posts which arose in the year 2009 were also added to be filled up taking the total vacancies identified to be filled up across the Circle to 424. These vacancies were duly filled up by appointing eligible GDS/casual labourers. The action taken by the respondents in compliance with the order of the Tribunal in OA No. 312/2008 was submitted before the Tribunal by way of filing an affidavit dated 25.04.2011. A table showing the number of vacancies in Group D cadre in Kerala Circle from 2002 to 2009 and the number of vacancies filled up was also furnished before the Tribunal as Annexure R-8 to the said affidavit. Respondent argues that no submission was ever made in the said affidavit that the Group D vacancies from 2002 to 2009 which were abolished were revived and filled up. Para 7 of the said affidavit is marked as Annexure R-1(n) which is reproduced as para 7 at pre-page 5 and 6.
10. Respondent argues that in the above para 7 referred it is stated in unambiguous terms that the respondents had exercised the option given by the Tribunal by the interim order dated 27.10.2010 and chose to go by the 2nd option in view of the administrative difficulties. This Tribunal had accepted the submissions of the respondents and all the contempt cases were closed with a direction that all the 424 posts referred to in Annexure R-8 be filled up. Thus, the number of Group D posts to be filled up from 2002 to 2009 had attained finality.
11. Respondent also brings to our notice that the relevance of DOPT OM dated 16.5.2001 has been considered in detail by this Tribunal in O.A.No.145/2010 and it was made clear that the respondents were bound by the instructions relating to the clearance from the Screening Committee till the High Court in its judgment dated 22.3.2007 in WPC No.22818/2006 ordered that no clearance from Screening Committee is required for filling up the post by promotion in the Group D cadre. Thus the O.M dated 16.5.2001, which ordered abolition of posts which remained vacant up to one year was in operation till this Tribunal's order, which said that promotion of GDS to Group D was a promotion and not a direct recruitment. This O.M of posts remaining vacant for upto one year being deemed abolished has neither been challenged nor set aside. Hence any action in compliance of this operative OM cannot be held as wrong or illegal. This was also followed by this Tribunal in a very recent order dated 18.08.2015 in OA No.553/2012 filed by Shri.P.R.Prathapan and another wherein this Tribunal accepted the contention of the respondents that the vacancy position in Annexure R-1 is the settled and final position. Respondent argues that in view of above stated facts there are no more Group D/MTS vacancies pertaining to the years 2002 to 2009 to be filled up in Kerala Circle.
12. We note that the Tribunal vide interim order dated 27.10.2010 in C.P.No.90/2009 in O.A.No.314/2008 & others had, as regards vacancy position from 2000 to 2009 given the following option :
If the Department wants to comply with the order passed by this Tribunal the Department shall take either to revive all the vacancies abolished without permission of law or without an order passed by the competent authority with regard to the promotion quota. Further it is also held that if they are not in a position to fill up the vacancies already existed (read as abolished) they should adjust the vacancies now arisen during the year 2009 ie. 97 vacancies.
13. We read 'existedb� above (emphasised) as abolished as the respondent in the reply statement in CP had admitted filling up all vacancies from 2000-2008 except a few reserved for ST candidates or Casual Labour persons against which applicants are not making a claim. Respondent, as per order of Tribunal dated 27.10.2010, expressed a reservation only in respect of 286 posts which stood abolished. Hence the Tribunal noting the limitation of the respondent in reviving of 286 abolished vacancies had directed that they should fill up the 97 vacancies which arose in 2009. In the C.P.No.96/2009 the Tribunal has in para 11 noted and reproduced para 7 of the respondent reply wherein the limitations of the respondent has been conveyed in detail and how they came to accept the option of filling up 97 vacancies. This is reproduced at prepara 4 above.
14. A statement was subsequently filed by the respondents clarifying the position as to how many posts were filled up and what are the post remaining to be filled up, if any. That statement was filed before this Tribunal on 23.12.2016. There is a table showing the number of unfilled vacancies which were subsequently filled up and whether there are any vacancies yet to be filled up. This table shows details and status of all the 47 vacancies. It is stated therein that 327 vacancies were initially identified for filling up from 2002 to 2008. Thereafter 97 vacancies arose in 2009. It was further stated that on re-assessment, two vacancies one pertaining to Alappuzha Division and one pertaining to Ottappalam Division were not in fact existing and hence those two vacancies shown in the table of 424 vacancies was not available to be filled up. It is submitted by the learned counsel for the respondents that simply because a mistaken statement was filed earlier, when there was no post existing at all, two posts cannot be created so as to fill up a non-existing post. The table shows that 11 vacancies are yet to be filled up but those vacancies are lying vacant due to non-availability of ST/Casual Labourers. Since that was separately assigned for those class of persons, it cannot be filled up by any other candidates. Thus, according to the respondents, there remains no unfilled vacancies so as to allow the claim made by the applicants.
15. The GDS claim to Group D/Postman posts arises out of two factors. The first is the Recruitment Rules which provides them the avenue of entry into Group D/Postman posts. Second is the status of GDS in the Government hierarchy of persons engaged and their consequent eligibility. The question of status of GDS in the Government hierarchy has undergone much litigation as cited by applicant and respondent above. Here we would like to draw attention to the Apex Court order of 12 th August 2016 - Najithamol Y & Others Vs. Sowmya S.D & Others 2016 (4) KHC 280 (SC) wherein the appointment of GDS to Postman was addressed. The above judgment dealt at length on the status of GDS in the Government organisational set up. The Apex Court held that :
'9. b�&. . . . . . Promotion to a post, thus, can only happen when the promotional post and the post being promoted from are a part of the same class of service. Gramin Dak Sevak is a civil post, but it is not a part of the regular service of the Postal Department.' The Apex Court further went on to quote the three Judge Bench order in the case of the Superintendent of Post Offices and others vs. P.K.Rajamma (1977) 3 SCC 94 :
' b�&. . . It is thus clear that an extra departmental agent is not a casual worker but he holds a post under the administrative control of the State. It is apparent from the rules that the employment of an extra departmental agent is in a post which exists 'apart fromb� the person who happens to fill it at any particular time. Though such a post is outside the regular civil services, there is no doubt it is a post under the State.'
16. A perusal of the above two judgments of Apex Court make it clear that Extra Departmental Agents are not in the regular service of the respondent department, though they hold a civil post. Thus if the GDS and Group D/Postman do not belong to same class of service as held by Apex Court in Najithamol's case by no stretch of imagination can the post of GDS be envisaged to be a feeder post to Group C posts for promotion. GDS can however be appointed on direct recruitment to Group D/Postman. The Apex Court in Najithamol's case has drawn attention to a Full Bench order of CAT Ernakulam Bench in M.A.Mohanan Vs. The Senior Superintendent of Post Offices and others, O.A.No.807 of 1999, decided on 3.11.1999 when it had the occasion to consider a similar question. The majority opinion of the Tribunal quoted by Apex Court in Najithamol's case reads as under :
' As the name itself indicates, EDAs are not departmental employees. They become departmental employees from the date of their regular absorption as such. And promotions are only for departmental employees. Therefore, EDAs cannot be treated as 'promoted' as Postman. They can be treated as only appointed as Postman. It is further seen from instructions of Director General Posts under Rule 4 of Swamy's publication referred to earlier that EDA's service are terminated on appointment as Postman and hence they become eligible for ex-gratia gratuity. If the recruitment of EDAs as Postman is treated as a promotion, the question of termination will not arise. (Further payment of gratuity will also not arise as gratuity is paid only when an engagement in service ends.) This also leads one to conclude that the recruitment of EDAs (as) Postman cannot be treated as one of promotion.
Further, Hon'ble Supreme Court in C.C.Padmanabhan and Ors. Vs. Director of Public Instructions and Ors., 1980 (Suppl.) SCC 668 : 1981(1) SLJ 165 (SC), observed that 'Promotion' as understood in ordinary parlance and also as a term frequently used in cases involving service laws means that a person already holding a position would have a promotion if he is appointed to another post which satisfies either of the two conditions namely that the new post is in higher category of the same service or class. Applying the above criteria appointment as Postman from EDA cannot be termed as promotion as the posts of Postman and EDA belong to two different services viz. regular Postal Service' and 'Extra Departmental Postal Service.' (emphasis laid by this Court)
17. On the same analogy the appointment as Group D from EDA cannot be termed as promotion as Group D and ED belong to two different services, viz. 'Regular Postal Service' and 'Extra Departmental Postal Service', now renamed as GDS. The Apex Court in Najithamol's case further went on to add :
11. The Tribunal in the instant case sought to distinguish the aforementioned case with the case in hand, by placing reliance on another decision of the Tribunal and holding that the Full Bench was concerned with the cases of those candidates covered under Column 11(2)(i), whereas the case of the candidates in the instant case was covered under Column 11(2)(ii), and thus, the decision of the Full Bench has no bearing on the facts of the case on hand. This reasoning of the Tribunal cannot be sustained, as the Full Bench of the Tribunal was clearly adjudicating the broader question of whether the appointment of Extra Departmental Agents to the post of Postman is by way of direct recruitment or by way of promotion. The attempt to distinguish the ratio of the Full Bench of the Tribunal on such a superficial ground is akin to reading the decision of the Full Bench like a Statute, which cannot be sustained.
12. The Division Bench of the High Court placed reliance on the wording of Column 11(1) to conclude that since the Extra Departmental Agents being appointed as provided under Column 11(1) can be called as promotees, then the Extra Departmental Agents under Column 11(2)(i) and
(ii) also must be treated at par. The said reasoning of the High Court also cannot be sustained. It is nobodyb�s case that the Extra Departmental Agents being appointed under Column 11(1) be called promotees. The language of Column 11(1) itself makes this crystal clear. The use of the words 'failing which' makes it obvious that there is a distinction between those candidates who are being selected by way of promotion, and the candidates who are Extra Departmental Agents and have cleared the departmental examination, and that the latter will be considered for appointment only if there are no eligible candidates under the former category. Thus, the appointment of GDS to the post of Postman can only be said to be by way of direct recruitment and not promotion.'
18. The Apex Court in para 14 concludes that appointment of GDS to Postman is direct recruitment. The applicants, when this matter was raised, argued that the Najithamol's judgment of Apex Court was issued in the context of recruitment of GDS to Postman. But what the applicants in the O.As before us failed to appreciate is, the Apex Court in above judgment settled the status of GDS as not being departmental employees, though they were holders of civil post. Apex Court in Najithamol's case also held that Extra Departmental Agents are not in the regular service of the department and cannot be considered as a feeder post for promotion as Postman and going by a similar analogy as a feeder post for promotion as Group D as their service as GDS is terminated and ex-gratia gratuity paid. In the case of promotion the question of termination of engagement and payment of ex- gratia gratuity would also not arise. They can only be treated as appointed to the post. When an EDA gets appointed to a regular full time departmental post, his service as EDA is terminated by payment of ex-gratia gratuity, a relief generally disbursed on completion of service. The Apex Court in Najithamol's case, had by settling the status of GDS, held that appointment of GDS to Postman is by way of direct recruitment. Hence their appointment by whatever mode of recruitment ie., LDCE or Promotion to either Postman or Group D, which is effected from their status as GDS is a direct recruitment and not promotion. Hence the status of GDS as full fledged Government servants covered by the same terms and conditions of engagement as departmental employees, is no longer a settled position as averred by applicants. They both ie., GDS on one hand and Postman/Group D on the other belong to two different services viz., Regular Postal Service and Extra Departmental Postal Service (GDS) as brought out by the Full Bench order of Tribunal in O.A.No.807/1999 M.A.Mohanan Vs. Senior Superintendent of Post Offices & Others and reiterated by Apex Court in Najithamol's case. Hence the appointment of GDS to any departmental post, be it Postman/Group D/Postal Assistant can only be said to be by way of direct recruitment and not promotion. The judgment of Apex Court of 12th August 2016 in Najithamol's case has settled the matter of the status of GDS. GDS are not in the regular service of the respondent department and their appointment to any regular post will be by direct recruitment and not promotion.
19. The above judgment settling the appointment of GDS to departmental post as direct recruitment changes the interpretation of abolition of posts. The Government of India directs a percentage abolition of posts which are to be filled by direct recruitment. Hence the judgment/order of Tribunal in O.A.No.312/2008, C.P.No.95/2009 and W.P.(C) No.20574/2009 of High Court of Kerala stands nullified as it is settled by the Apex Court in Najithamol's case that appointment of GDS to the regular posts of the respondent department is by way of direct recruitment and not by promotion, it is argued on behalf of the respondents. Hence applicants cannot make any claim to 286 abolished post or even to any part of the unfilled 424 vacancies, which are now settled as 'direct recruitment postsb� and not promotional vacancies to be filled by GDS.
20. The Apex Court in Najithamol's case supra while deciding the case of GDS to Postman, settled the status of GDS in the Government hierarchy. Apex Court having drawn the conclusion that appointment of GDS to departmental posts is direct recruitment the claim of the applicants for appointment to the 286 abolished posts stands negated. The status of GDS pronounced by the Apex Court in Najithamol's case (supra), from wherein the Apex Court has drawn its conclusion on confirming OBC reservation to the posts of Postman, as the appointment is by direct recruitment, helps us to draw the conclusion that appointment of GDS to Group D, a regular Government service, is direct recruitment. Hence applicants' prayer for appointment to abolished direct recruitment posts cannot be sustained.
21. In the light of what is stated above, the O.As are dismissed. No costs.
(Dated this the 23rd day of January 2017)
(P.GOPINATH) (N.K.BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp