Kerala High Court
Union Of India vs Vijayan A on 30 January, 2025
Author: Amit Rawal
Bench: Amit Rawal
2025:KER:11577
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
THURSDAY, THE 30TH DAY OF JANUARY 2025 / 10TH MAGHA, 1946
OP (CAT) NO. 110 OF 2019
AGAINST THE ORDER DATED 24.09.2018 IN OA NO.419 OF 2016 OF
CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
PETITIONERS/RESPONDENTS IN OA:
1 UNION OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT
OF POSTS, NEW DELHI-110001.
2 CHIEF POSTMASTER GENERAL,
KERALA CIRCLE, TRIVANDRUM-695033.
3 THE POSTMASTER GENERAL,
NORTHERN REGION, KERALA CIRCLE, KOZHIKODE-673011.
4 THE SENIOR SUPERINTENDENT OF POST OFFICES,
CALICUT DIVISION, CALICUT-673005.
BY ADVS.
T.C.KRISHNA, DSGI IN CHARGE
K.S.PRENJITH KUMAR
RESPONDENTS/APPLICANTS IN OA:
1 VIJAYAN A.,
S/O.MADHAVAN NAIR, MULTI TASKING STAFF,
CALICUT CIVIL STATION HEAD POST OFFICE,
RESIDING AT PULIYAKUNNUMMAL,
KANNANKARA P.O., CHELANNUR-673616.
2 RAMAN M.A.,
S/O.ACHAPPAN, MULTI TASKING STAFF, CALICUT HEAD POST
OFFICE, RESIDING AT MATHIRIKKAL HOUSE, CHENNARODE P.O.,
KALPETTA NORTH, KOZHIKODE DISTRICT, -673122.
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OP(CAT) 110/2019
2025:KER:11577
3 CHERIAN C.V.,
S/O.VARGHESE, MULTI TASKING STAFF,
PUDUPPADY POST OFFICE, RESIDING AT CHENAKUZHIYIL HOUSE,
PUDUPPADY P.O., KOZHIKODE DISTRICT-673586.
4 SURESH BABU K.,
S/O.RAMAN NAIR, MULTI TASKING STAFF,
NADAKKAVU POST OFFICE, RESIDING AT THARAMMAL HOUSE,
KUTHIRAVATTOM P.O., KOZHIKODE DISTRICT-673016.
5 BHASKARAN P.M.,
S/O.CHAMI, MULTI TASKING STAFF,
MARIKUNNU POST OFFICE, RESIDING AT AMBALAKUNNU HOUSE,
KANIYAMBETTA P.O., KALPETTA-673122, WAYANAD DISTRICT.
BY ADV SRI.S.VISHNU
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 30.01.2025, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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OP(CAT) 110/2019
2025:KER:11577
JUDGMENT
K. V. JAYAKUMAR, J The present OP(CAT) is directed against the order of the Central Administrative Tribunal, Ernakulam in O.A.No.419/2016 dated 24.09.2018, whereby the following claim of the respondents/applicants was allowed.
"(1) Declare that the Applicants are eligible to be promoted to the cadre of Group D, notionally with effect from the date of arising of vacancy shown in Annexure-A2 that is from the date of arising of the vacancy in 2002 and 2003.
(2) Declare that the Applicants be admitted to the General Provident Fund and Pension Scheme prevalent in the year 2002 and 2003 within a time frame.
(3) To direct the Respondents to stop the recoveries towards contribution under the New Pension Scheme and refund the amount already recovered within a time frame.
(4) Any such remedy deemed fit and proper as this Hon'ble Tribunal may be pleased to order.
(5) Grant costs to the applicant for dragging him into an unnecessary litigation."
2. Impugning the said order, Union of India and its officers preferred this OP(CAT). The facts in brief are as follows: 4
OP(CAT) 110/2019 2025:KER:11577 The applicants, while functioning as Extra Departmental Agents [now Gramin Dak Sevaks], were due to be appointed in Group-D for the vacancies of the year 2002-2003. Their posting was inordinately delayed by the petitioners till 2010.
3. The claim of the respondents/applicants was that, they should be allowed to continue under the old CCS (Pension) Rules 1972 and GPF Rules by notionally promoting them for the vacancies which arose in 2002-2003.
4. The contention of the petitioners/Union of India was that the applicants were appointed after 01.01.2004 and so that, they should be brought under the new pension scheme.
5. The Tribunal allowed the claim of the respondents/applicants and granted the reliefs sought in the application.
6. The learned counsel for the respondents/applicants supported the order of the Central Administrative Tribunal.
7. Per contra, learned Central Government Counsel submitted that the order of the learned Tribunal is not legally sustainable and interference from this Court is warranted.
8. We have heard the rival contentions of the counsel for the parties and appraised the paper book. 5 OP(CAT) 110/2019 2025:KER:11577
9. The learned Central Government Counsel submitted that the Honourable Supreme Court in Y. Najithamol and others v. Soumya S.D and Others [2016(3) KLT 684] declared that the method of appointment of Gramin Dak Sevak to Group-D is not a promotion post. The Tribunal has passed the order without looking into the law laid down by the Apex Court, in Y.Najithamol's case (supra).
10. It is further submitted that, even if there is vacancy, the State is not bound to fill up the vacancy and there is no corresponding right vested in an eligible employee to demand that such posts be filled up. The learned Central Government Counsel placed reliance on the decision reported in Vinodan T. v. University of Calicut [(2002) 4 SCC 726].
11. In view of Y. Najithamol's case (supra), the Tribunal ought not have granted the relief of notionally promoting the applicants for the vacancies which arose in the year 2002-2003 and to admit them to the GPF Scheme and the old pension scheme.
12. The issue involved in this case is whether, Gramin Dak Sevak who do not fall in either Group-D or C posts when appointed to Group-D or C posts, can claim notional promotion from the date of vacancy arose?.
6OP(CAT) 110/2019 2025:KER:11577
13. The Division Bench of this Court pondered the issue in the judgment in OP(CAT) No.150/2017 dated14.01.2025. The relevant paragraphs are extracted hereunder:
"7. We have heard the learned counsel for the parties and appraised the paper book and of the view that there is force on merit. The appointment letters Annexure R3 reflects that all the applicants were appointed as Group D employees without any murmur or reference to any expression promotion. At the relevant point of time, as per Annexure R3(d) dated 27.7.2010 the order was issued as 'notionally selected for promotion as Group D' for the reason that by that time, the judgment in Y. Najithamol has not come. Paragraphs 14 and 15 of the aforementioned judgment reads as under:
14. At this stage, it is also useful to refer to the decision of this Court in the case of C.C. Padmanabhan & Ors. v. Director of Public Instructions & Ors.[1], wherein it was held as under: "This definition fully conforms to the meaning of 'promotion' as understood in ordinary parlance and also as a term frequently used in cases involving service laws. According to it a person already holding a post would have a promotion if he is appointed to another post which satisfies either of the following two conditions, namely-
(i) that the new post is in a higher category of the same service or class of service;
(ii) the new post carries a higher grade in the same service or class."
15. 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 is not a part of the regular service of the postal department. In the case of Union of India v. Kameshwar Prasad[2], this Court held as under:
"2. The Extra Departmental Agents system in the Department of Posts and Telegraphs is in vogue since 7 OP(CAT) 110/2019 2025:KER:11577 1854. The object underlying it is to cater to postal needs of the rural communities dispersed in remote areas. The system avails of the services of schoolmasters, shopkeepers, landlords and such other persons in a village who have the faculty of reasonable standard of literacy and adequate means of livelihood and who, therefore, in their leisure can assist the Department by way of gainful avocation and social service in ministering to the rural communities in their postal needs, through maintenance of simple accounts and adherence to minimum procedural formalities, as prescribed by the Department for the purpose."
8. On perusal of the appointment letters except for reference in R3(f), no other documents or the Rules envisage any situation of promotion in a different class of service. In other words, casual labourers and GDS being appointed as Group D would not be considered for promotion but selection/recruitment, therefore, the notional benefit from the date the vacancies which were available as per the information received under RTI cannot be justified.
Original petition is allowed."
In view of the above judgment, OP(CAT) No.110/2019 is allowed. The order of the Central Administrative Tribunal in O.A.No.419/2016 is set aside. Original Application is dismissed.
Sd/-
AMIT RAWAL JUDGE Sd/-
K. V. JAYAKUMAR JUDGE Sbna/ 8 OP(CAT) 110/2019 2025:KER:11577 APPENDIX OF OP (CAT) 110/2019 PETITIONER EXHIBITS EXHIBIT P1 TRUE COY OF OA NO.419 OF 2016 FILED BY THE RESPONDENT DATED 08.12.2016.
EXHIBIT P1(A1) TRUE COPY OF THE SENIOR SUPERINTENDENT OF POST OFFICES CALICUT DIVISION MEMO NO.B2/61 DATED 17.7.2010.
EXHIBIT P1(A2) TRUE COPY OF THE MEMO OF THE SENIOR SUPERINTENDENT OF POST OFFICES CALICUT DIVISION NO.B2/61 DATED 29.7.2010. EXHIBIT P1(A3) TRUE COPY OF THE ORDER OF THE TRIBUNAL ERNAKULAM IN OA NO.714/2015 PRONOUNCED ON 17.03.2016.
EXHIBIT P1(4) TRUE COPY OF THE ORDER OF THE TRIBUNAL ERNAKULAM IN OA NO.614/2013 PRONOUNCED ON 03.09.2014.
EXHIBIT P1(A5) TRUE COPY OF THE ORDER OF THE HON'BLE HIGH COURT OF KERALA IN OP(CAT) 50/2015 PRONOUNCED ON 03.09.2015.
EXHIBIT P1(A6) TRUE COPY OF THE ORDER OF THE TRIBUNAL ERNAKULAM IN CONTEMPT PETITION NO.45/2015 PRONOUNCED ON 04.01.2016.
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONER IN OA NO.419/2016.
EXHIBIT P2(A1) TRUE COPY OF THE SUPREME COURT JUDGMENTS IN THE CASE OF Y.NAJITHAMOL & OTHERS V/S. SOUMYA S.D. & ORS 2016 (U) KHC 280(SC). EXHIBIT P2(A2) TRUE COPY OF THE LETTER NO.GL/GR.D/2010 DATED 19.07.2010.
9OP(CAT) 110/2019 2025:KER:11577 EXHIBIT P2(A3) TRUE COPY OF THE LETTER NO.GL-4 DATED 19.07.2010.
EXHIBIT P2(A4) TRUE COPY OF THE LETTER NO.GL-2 DATED 19.07.2010.
EXHIBIT P2(A5) TRUE COPY OF THE OFFICE MEMORANDUM DATED 14.01.2004 IN NEW PENSION SCHEME.
EXHIBIT P3 TRUE COPY OF THE REJOINDER FILED BY THE PETITIONERS.
EXHIBIT P3(A1) TRUE COPY OF THE SENIOR SUPERINTENDENT OF POST OFFICES, CALICUT DIVISION MEMO NO.B3/MISC.NP DATED 25.11.2016.
EXHIBIT P3(A2) TRUE COPY OF THE CASUAL LABORERS (GRANT OF TEMPORARY STATUS AND REGULARISATION) SCHEME OF THE GOVERNMENT OF INDIA 1993.
Exhibit P3(A3) TRUE COPY OF THE GOVERNMENT OF INDIA, MINISTRY OF COMMUNICATION AND I.T. DEPARTMENT OF POSTS ORDER NO.01-07-2016 SPB-1 DATED 12.09.2016.
EXHIBIT P3(A4) TRUE COPY OF THE ORDER IN OA NO.749/2005 OF THE HON'BLE CAT, PRINCIPAL BENCH PRONOUNCED ON 17.11.2016.
EXHIBIT P4 TRUE COPY OF THE SEPARATE REPLY STATEMENT FILED BY THE PETITIONER ON 01.06.2017. EXHIBIT P5 A TRUE COPY OF THE ADDITIONAL REPLY STATEMENT.
EXHIBIT P6 A TRUE COPY OF THE SECOND ADDITIONAL REPLY STATEMENT REJOINDER FILED BY THE RESPONDENTS 1 TO 4.
EXHIBIT P6(A1) TRUE COPY OF THE ORDER OF HON'BLE CAT, ERNAKULAM BENCH DATED 21.03.2017 IN K.BHUVANACHANDRAN VS.UNION OF INDIA AND OTHERS IN OA NO.1125/2014.
10OP(CAT) 110/2019 2025:KER:11577 EXHIBIT P6(A2) TRUE COPY OF THE ORDER OF THE HON'BLE HIGH COURT OF KERALA DATED 13.03.2017 IN P.SEKHARAN VS. UNION OF INDIA & OTHERS IN OP(CAT) NO.58/2017.
EXHIBIT P6(A3) TRUE COPY OF THE ORDER OF THE HON'BLE HIGH COURT OF KERALA DATED 18.01.2017 IN INDUKALA VS. UNION OF INDIA & OTHERS IN OP(CAT) NO.327/2016.
EXHIBIT P7 A TRUE COPY OF THE ORDER IN OA NO.419/2016 DATED 24.09.2018 OF THE HON'BLE CAT ERNAKULAM BENCH.