Central Administrative Tribunal - Ernakulam
K Ayyappan vs D/O Post on 31 October, 2018
1
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 699 of 2012
Original Application No. 659 of 2013
Original Application No. 180/000088/2014
Original Application No. 180/000349/2015
Original Application No. 180/000569/2015
Original Application No. 180/000783/2015
Original Application No. 180/000820/2015
Original Application No. 180/000738/2016
Wednesday, this the 31st day of October, 2018
CORAM:
Hon'ble Mr. E.K. Bharat Bhushan, Administrative Member
Hon'ble Mr. Ashish Kalia, Judicial Member
1. Original Application No. 699 of 2012 -
1. K. Ayyappan, Group D, Postal Stores Depot,
Thiruvananthapuram - 695 023,
Residing at Ayyappanivas, Karyavattom PO,
Thiruvananthapuram - 695 581.
2. G. Ramdas, Group D, Postal Stores Depot,
Thiruvananthapuram - 695 023,
Residing at Sruthileyam, Ayanthi, Cherunniyoor PO,
Varkala, Thiruvananthapuram.
3. N. Sugathan, Group D, Postal Stores Depot,
Thiruvananthapuram - 695 023,
Residing at Safavila House, Kunthanloor,
Chirayinkeezhu PO, Thiruvananthapuram.
4. G. Chandrika Kumari, Group D, Postal Stores Depot,
Thiruvananthapuram - 695 023,
Residing at T.C. 23/660, Valiyasala,
Chala PO, Thiruvananthapuram - 695 036.
5. S. Padmini, Group D, Postal Stores Depot,
Thiruvananthapuram - 695 023,
Residing at Padmalayam, T.C. 80/2724,
Madhavapuram, Kochiveli, Thiruvananthapuram-695 021.
6. S. Mohanan, Group D, Postal Stores Depot,
Thiruvananthapuram - 695 023,
Residing at Thekkevilaveedu, Mantra, Edava PO,
2
Thiruvananthapuram - 695 311.
7. L. Girija Devi, Group D, Postal Stores Depot,
Thiruvananthapuram - 695 023,
Residing at Kairali, PO Navayikkulam, Thiruvananthapuram.
8. A.M. Abdul Hakkim, Group D, Chowkidar,
Mail Motor Service, Thiruvananthapuram - 695 023,
Residing at Mundkariyal Veedu, Pattathinkara, Thonnakal PO,
Thiruvananthapuram - 695 317.
9. B.K. Gopakumar, Group D, Sreekaryam PO,
Thiruvananthapuram - 695 017,
Residing at Gokulam, Kudavoor PO,
Thonnakal, Thiruvananthapuram - 695 313. ..... Applicants
(By Advocate : Mr. Vishnu S. Chempazhanthiyil)
Versus
1. The Superintendent of Postal Stores Depot,
Thiruvananthapuram - 6905 023.
2. The Chief Postmaster General,
Kerala Circle, Thiruvananthapuram - 695 033.
3. Union of India, represented by the Director General
and Secretary, Department of Posts, Dak Bhavan,
New Delhi. ..... Respondents
[By Advocate : Mr. N. Anil Kumar, SCGSC]
2. Original Application No. 659 of 2013 -
D.Mohandas, Multi Task Employee (MTS),
Head Record Office, RMS TV Division,
Thiruvananthapuram - 695 001.
Residing at House No.50, Chempakasserey Nagar,
Kesavadasapuram, Thiruvananthapuram - 695 004. ..... Applicants
(By Advocate : Mr.Vishnu S Chempazhanthiyil)
Versus
1. The Senior Superintendent,
RMS TV Division, Thiruvananthapuram - 695 001.
2. Union of India,
represented by the Chief Postmaster General,
3
Kerala Circle, Thiruvananthapuram - 695 033. ..... Respondents
(By Advocate : Mr. Sinu G Nath, ACGSC)
3. Original Application No. 180/000088/2014 -
1. T.A Prasad, S/o Kunjan Achuthan,
aged 57 years, Group D/MTS,
Ponkunnam, residing at Pazhadiyil,
Pangada P.O, Pin - 686502.
2. K.R.Soman Nair,
S/o Raghavan Nair K,
aged 57 years, Group D/MTS,
Erumeli - 686509,
residing at Kizhakkeparackal House,
Kunnam Veehuchira P.O, Pin-686 511.
3. Asharaf H,
S/o Hameed Rawther,
aged 57 years, GO Perunna P.O,
Perunna - 686 102,
residing at Manslawce Kunnil House,
Pallickachira Kavala P.O, Paippad,
Changanassery. ..... Applicants
(By Advocate : Mr. V. Sajith Kumar)
Versus
1. Union of India,
represented by the Secretary to Government,
Department of Posts,
Ministry of Communications,
Government of India, New Delhi - 110 011.
2. The Chief Postmaster General,
Kerala Circle, Trivandrum -695 033.
3. The Superintendent of Post Offices,
Changanssery Postal Division,
Changanasery - 686 101. ..... Respondents
(By Advocate : Mr. N. Anilkumar, SCGSC)
4. Original Application No. 180/000349/2015 -
1. S.S. Padmaraj,
S/o.Late G.Somanathan Pillai,
4
aged 54 years,
MTS, Kollam HO,
Department of Posts,
residing at Gopika,
Kizhakkenela,
Paripally, Kollam - 691 574.
2. S.Mohammed Sherief,
S/o.Late Shahul Hameed,
aged 59 years, MTS/Postman,
Speed Post Centre,
Kollam HO,
Department of Posts,
residing at Manackarazhikom,
Bharath Nagar 101,
Vindarmukku, Vadakkevila, P.O.,
Kollam - 691010.
3. K.Sasi,
S/o. Late Kesavan K,
aged 59 years, MTS, Kollam HO,
Department of Posts
residing at Vaisakh,
Mathilakambhagom,
East Kallada, Kollam - 691 502.
4. A.Shahabudeen,
S/o.Late Aboobacker,
aged 58 years, MTS,
Kollam HO,/Postman Kottiyam SO,
Department of Posts,
residing at Ajmeerkhan Manzil,
Thazhuthual, Kottiyam P.O.,
Kollam-691571.
5. K.Rajendran,
S/o.Late K.Anandan,
aged 59 years, MTS, Kollam HO,
Department of Posts,
residing at S.R.Bhavanam,
Kayila-Mylodi BO, Pooyappally,
Kollam-691537.
6. K.Devadas,
S/o Late Krishnankutty,
aged 58 years, MTS,
Kollam HO, Department of Posts,
residing at Thulasi Bhavanam,
Ezhamkulam P.O., Nedumon,
5
Pathanamthitta - 691556. ..... Applicants
(By Advocate : Mr. V. Sajith Kumar)
Versus
1. Union of India,
represented by the Secretary to Government,
Department of Posts,
Ministry of Communications,
Government of India, New Delhi - 110 011.
2. The Chief Postmaster General,
Kerala Circle,
Trivandrum -695 033.
3. The Senior Superintendent of Post Offices,
Kollam Postal Division,
Kollam - 690 001. ..... Respondents
(By Advocate : Mr. N. Anilkumar, SCGSC)
5. Original Application No. 180/000569/2015 -
R.Mohana Varma,
S/o Late K.Raja Varma Thampan,
aged 60 years, MTS,
Karunagappally HO, Department of Posts,
residing at Kavumkada Madom,
Thazhava P.O., Kollam - 690 523. ..... Applicant
(By Advocate : Mr. V. Sajith Kumar)
Versus
1. Union of India,
represented by the Secretary to Government,
Department of Posts,
Ministry of Communications,
Government of India, New Delhi - 110 011.
2. The Chief Postmaster General,
Kerala Circle,
Trivandrum -695 033.
3. The Senior Superintendent of Post Offices,
Kollam Postal Division,
Kollam - 690 001.
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4. The Postmaster,
Karunagapally Head Post Office,
Department Posts.
Karunagapally- 690518. ..... Respondents
(By Advocate : Mr. N. Anilkumar, SCGSC)
6. Original Application No. 180/000783/2015 -
1. P.S. Shahid, S/o Shahid Hussain,
Aged 52 years,
Head Record Officer (HRO),
RMS 'Ek' Division, Kochi - 682 011,
Residing at Vadakkath House,
LIG Plot No. 43,
Shanthi Nagar,Koovappadam,
Kochi - 682 002.
2. K. K. Shaji, S/o. Kochappan,
Aged 51 years,
Head Record Officer (HRO),
RMS 'Ek' Division, Kochi - 682 011,
Residing at Kolothara House,
Nayarambalam,
Kochi - 682 509.
3. V.A. Ananda Kumar,
S/o Achuthan Nair V.,
Aged 51 years,
Head Record Officer (HRO),
RMS 'Ek' Division, Kochi - 682 011,
Residing at Madathiparambil House,
Eroor P.O., Kochi - 682 306.
4. M. Sreekumar,
S/o. D. Muraleedharan Nair,
Aged 50 years,
Head Record Officer (HRO),
RMS 'Ek' Division, Kochi - 682 011,
Residing at Kanjili House, Near NSS Karayogam,
Nayathode P.O., Angamali - 683572.
5. N. Radhakrishnan,
S/o. E.S. Narayanan,
Aged 53 years,
Head Record Officer (HRO),
RMS 'Ek' Division, Kochi - 682 011,
Residing at Athira Nivas,
Muvattupuzha P.O.,
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Pin - 686 673.
6. V.M. Ramani, W/o V. Madhavan Pillai,
Aged 55 years, Head Record Officer (HRO),
RMS 'Ek' Division, Kochi - 682 011,
Residing at Padinjare Ambattu House,
Edappally North, Kunnumpuram,
Kochi - 682 024.
7. B.K. Usha,
W/o Krishnan Nair,
Aged 54 years,
Head Record Officer (HRO),
RMS 'Ek' Division, Kochi - 682 011,
Residing at Kuriyedath House,
Thiruvankulam,
Kochi - 682 305.
8. E.U. Chandran,
S/o. E. Unnikrishnan,
Aged 48 years,
Head Record Officer (HRO),
RMS 'Ek' Division, Kochi - 682 011,
Residing at Radha Nivas,
Narikkal Parambu,
Kadavanthara Road,
Kaloor P.O.,
Pin - 682 017.
9. N.K. Nanda Kumar,
S/o. P. Krishna Pillai,
Aged 55 years,
Head Record Officer (HRO),
RMS 'Ek' Division, Kochi - 682 011,
Residing at Parappillil House,
Kadavanthara P.O.,
Pin - 682 020. ..... Applicants
(By Advocate : Mr. V. Sajith Kumar)
Versus
1. Union of India,
represented by the Secretary to Government,
Department of Posts,
Ministry of Communications,
Government of India, New Delhi - 110 011.
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2. The Chief Postmaster General,
Kerala Circle,
Trivandrum -695 033.
3. The Superintendent of RMS "EK" Division,
Kochi - 682 011. ..... Respondents
(By Advocate : Mr. V.A. Shaji, ACGSC)
7. Original Application No. 180/000820/2015 -
R.Udayan, MTS/Group D, Postal Stores Depot,
Thiruvananthapuram - 695 023.
Residing at Udaya Sree, Malamelparambu,
Chittattumukku P.O., Thiruvananthapuram - 695 301. ..... Applicant
(By Advocate : Mr.Vishnu S Chempazhanthiyil)
Versus
1. The Superintendent of Postal Stores Depot,
Thiruvananthapuram - 690 023.
2. The Chief Postmaster General,
Kerala Circle, Thiruvananthapuram - 695 033.
3. Union of India,
represented by the Director General & Secretary,
Department of Posts, Dak Bhavan, New Delhi. ..... Respondents
(By Advocate : Mr.M.K.Padmanabhan Nair, ACGSC)
8. Original Application No. 180/000738/2016 -
M. Podiyamma, W/o. K.O. Thampi, aged 64 years, Retired Postman,
Elamannoor, Department of Posts, residing at Thekkethara Puthenveedu,
Chertakkukuzhi, Channapetta PO, - 691 311. ..... Applicants
(By Advocate : Mr. V. Sajith Kumar)
Versus
1. Union of India,
represented by the Secretary to Government,
Department of Posts,
Ministry of Communications,
Government of India, New Delhi - 110 011.
2. The Chief Postmaster General,
Kerala Circle,
9
Trivandrum -695 033.
3. The Superintendent of Post Offices,
Pathanamthitta Postal Division,
Pathanamthitta - 689 645. ..... Respondents
(By Advocate : Mr. S. Ramesh, ACGSC)
These applications having been heard on 11.04.2018, the Tribunal on
31.10.2018 delivered the following:
ORDER
Per Hon'ble Mr. Ashish Kalia, Judicial Member -
OAs Nos. 692/2012, 180-659-2013, 180-88-2014, 180-349-2015, 180-569-2015, 180-783-2015, 180-820-2015 and 180-738-2016 have common points of fact and law involved and hence are being disposed of through this common order. The pleadings, documents and records in OA No. 692/2012 are referred to in this common order for the sake of convenience.
2. The applicants are aggrieved by the inaction on the part of the respondents to give them appointments in Group-D vacancies in existence from 2006 to 2008 at the relevant time.
3. The applicants were working as as Gramin Dak Sevaks in Trivandrum North Postal Division working at different Post Offices. Applicants were offered appointment as Group-D pursuant to the direction in OA No. 312/2008 and connected cases wherein the respondents were directed to fill up the vacancies from 2002 onwards. The applicants were appointed in the time scale of pay of Rs. 2550-55-2660-3200/- (pre-revised). On 10 appointment their pay was fixed in the minimum of the pay scale. No retrospectivity was given even though the vacancies in which they were appointed arose during the period 2005 to 2008. As the applicants were not given any monetary benefit though appointment was in the vacancies of the years 2005 to 2008 the applicants made representation against the same.
However, no action was taken by the respondents. Hence, these Original Applications.
4. The applicants submit that respondents have appointed them w.e.f.
29.2.2008, 30.6.2007, 24.3.2008, 31.1.2007, 31.7.2008, 15.8.2007, 31.5.2006, 31.10.2008 and 1.10.2005 respectively. Thus, they should have been given all consequential benefits like pay and allowances and annual increments from the date occurrence of vacancies from which date of appointments have been effected. The vacancies were not filled on account of the illegal stand that appointment of GDS to Group-D is by way of direct recruitment.
5. Notices were issued to the respondents. A reply statement has been filed wherein it is contended that while implementing the common order of this Tribunal in OA No. 312/2008 and other connected matters, the applicants were given appointment as Group D vide Annexure A2 series of orders. The said appointments were made strictly according to the seniority of the GDS/Casual Labourers keeping in view the number of vacancies available. The appointments are made retrospectively from the date of occurrence of vacancies and were given notionally from the said date. The 11 period of notional service was to count only for the purpose of pension.
There was no specific direction to give arrears of pay and allowances. Thus, there is no illegality in the action taken by the respondents.
6. Rejoinder, additional reply statement and additional rejoinder have been filed by the respective parties wherein their stand taken in the Original Application and reply statement have been reiterated.
7. Heard Mr. Vishnu S. Chempazhanthiyil, learned counsel for the applicants in OAs Nos. 699-2012, 659-2013 and 180-820-2015, Mr. V. Sajith Kumar, learned counsel for the applicants in OAs Nos. 180-88-2014, 180-349-2015, 180-569-2015, 180-783-2015 and 180-738-2016, Mr. N. Anilkumar, SCGSC, learned counsel for the respondents in OAs Nos. 699- 2012, 180-88-2014, 180-349-2015, 180-569-2015, Mr. Sinu G. Nath, ACGSC, learned counsel for the respondents in OA No. 659-2015, Mr. V.A. Shaji, ACGSC learned counsel for the respondents in OA No. 180- 783-2015, Mr. M.K. Padmanabhan Nair, ACGSC, learned counsel for the respondents in OA No. 180-820-2015 and Mr. S. Ramesh, ACGSC learned counsel for the respondents in OA No. 180-738-2016. Perused the records.
8. The operative portions of the order passed by this Tribunal in OA No. 180-555-2016 and connected cases on 22.11.2016 are as under:
"27. The learned counsel for the applicants would submit that the aforesaid decision cannot be made applicable since the earlier decisions which were referred to by the Hon'ble Supreme Court in Suraj Parksah Gupta was with respect to the claim of seniority. That argument is too fallacious to be countenanced. Though seniority was also a point in issue in some of the decisions, the ratio enunciated in all these decisions is that direct recruits 12 cannot get their appointment ante-dated from the date of occurrence of vacancy in the direct recruitment quota. Therefore, the argument vehemently advanced by all the counsel appearing for the applicants that the appointment of the applicants who are Postman should be ante-dated to the date of occurrence of vacancy cannot be sustained at all. The further argument that had their appointment been done as and when vacancy arose they would have satisfied the eligibility condition/required regular service of three years and so there was negation of justice is found to be totally untenable. As has been stated earlier it is not a case where the applicants do not get any opportunity to write the examination at all. They have eight chances ahead of them to write the examination. In other words, it is not a case where the applicants are simply thrown out from the arena of the LGO examination. Their chances are not at all affected.
28. It is not disputed that the authorities concerned had absolutely no bias or prejudice or ill-will towards any of the applicants or to see that such persons should not be allowed to write the examination but the applicants contend that there was lethargy in the conduct of the Postman examination in 2011-2012. As has been pointed out earlier the delay occurred because of plausible and explainable reasons. It is pointed out that in OA 320/2012 filed by one Riyas TM it was held by this Tribunal that in the event, examination could not be conducted in the vacancy year due to a conscious decision taken uniformly throughout the country due to revision of recruitment rules, no claim can be raised by the applicants. It is settled law that a promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or creation of posts. Since the applicants are direct recruits they cannot claim deemed dates of appointment or get their dates of appointment ante-dated even for counting the regular service since so far as direct recruits are concerned the date of service commences only from the date they actually join the service and not on a date prior to the same. Since the applicants have not acquired the regular service of three years as Postman their contention that they should be held to have occupied the post from the date of occurrence of vacancy or at any rate before 1.4.2012 must fall to the ground.
29. Strenuous argument has been addressed by the learned counsel for the applicants (who are MTS) that the decision in Najithamol cannot be made applicable to MTS. Though in Najithamol the appointment of GDS as Postman was the core issue the principle laid down is equally applicable to the appointment of GDS to Group D/MTS. There is one more aspect. If the appointment of GDS to Group D/MTS is taken as an exception then it will lead to a situation where the persons who got appointment as Postman from GDS will be denied the right to write the examination whereas GDS who were appointed as Group D/MTS will be stepping ahead of or jumping the queue even pushing down the Postman and will write the examination and become Postal Assistant. That is not thought of or contemplated by the authorities concerned. Not only that, the principle laid down in Najithamol that GDS are not in the regular service of the Postal Department and so they are not the feeder category of Postman would certainly be made applicable to the case of the applicants who are Group-D/MTS. It has been held that promotion to a post can only happen when the promotional post and the post being promoted from are part of the same class of service. When GDS is not part of the same service and is not a feeder category the contentions vehemently advanced on behalf of the applicants/MTS that the decision in Najithamol is not applicable to them cannot be countenanced.13
30. Therefore, we find no merit in the contention that the appointment of the applicants should be antedated to the date of occurrence of vacancy. Similarly the contention that they must be deemed to have been in service from the date of arising of vacancy and so the qualifying service/regular service should be counted from the date of occurrence of vacancy so as to enable them to write the examination is found to be devoid of any merit. As such all these applications, except OA 575/2016 to the extent herein below mentioned are found to be devoid of merit and hence all these applications are dismissed."
9. The applicants challenged the above order before the Hon'ble High Court of Kerala in OP (CAT) No. 317 of 2016 and connected cases. The Hon'ble High Court passed the following judgment on 18.1.2017:
"9. Now, we will deal with the common contention as to whether the petitioners could contend that they are entitled to get reckoned the service in the respective post of Postman/MTS with effect from the date of occurrence of vacancies against which they were so appointed on direct recruitment. The question is whether a candidate eligible to get appointment by way of direct recruitment against a post could claim that he got a vested right to get appointed with effect from the date of occurrence of vacancy against which he was appointed on his selection because of his eligibility to be considered for direct recruitment on the date of occurrence of vacancy and that the selection got delayed due to administrative reasons. We have already found that all the petitioners were appointed as Postman/MTS based on LDC Examination. In otherwords, it is evident that it is not purely on their seniority that they were given such appointment and that all of them were directly recruited to their present posts. While considering the tenability of the said contention, the following decisions assumes relevance. In the decision in T.N. Administrative Service Officers Assn. Union of India (2000) 5 SCC 728, the Apex Court considered such a question in a different context. The Apex Court held that even if vacancies exist, it is open to the authority concerned to decide how many appointments should be made. Simply because a candidate is eligible for selection, it did not confer on him any vested right for getting appointment. Virtually the said position was restated by the Apex Court in Vinodan T. v. University of Calicut (2002) 4 SCC 726. It is a well settled position in service jurisprudence that even if there is vacancy, the State is not bound to fill up vacancy and there is no corresponding right vested in an eligible employee to demand that such posts be filled up. This is because the decision to fill up a vacancy or not vests with an employer and for good reasons he could decide not to fill up such posts. In the contextual situation, a decision of the Apex Court in Suraj Parkash Gupta and others v. State of Jammu and Kashmir (2000) 7 SCC 561 also assumes relevance. In the said case, a contention was raised by the direct recruits, respondents therein that they are entitled to get the date of appointment of direct recruitment antedated from the date of occurrence of vacancy in the direct recruitment quota though on that date they were not actually directly recruited. In fact, such contention was raised to canvass the position that promotees who were occupying the quota for direct recruitment should be pushed down. The said contention was repelled by the Apex Court in paragraph 80. The Apex Court held thus:-14
"80. This contention, in our view, cannot be accepted. The reason as to why this argument is wrong is that in Service Jurisprudence, a direct recruit can claim seniority only from the date of his regular appointment. He cannot claim seniority from a date when he was not born in the service. This principle is well settled. In N.K.Chauhan v. State of Gujarat, [1977] 1 SCC 308 (at p.321) Krishna Iyer, J. stated:
"later direct recruit cannot claim deemed dates of appointment for seniority with effect from the time when direct recruitment vacancy arose. Seniority will depend upon length of service."
Again, in A. Janardhana v. Union of India [1983] 2 SCR 936, it was held that a later direct recruit cannot claim seniority from a date before his birth in the service or when he was in school or college. Similarly it was pointed out in A.N.Pathak v. Secretary to the Government, [1987] Suppl. SCC 763 (at p.767) that slots cannot be kept reserved for the direct recruits for retrospective appointments".
10. The learned counsel for the petitioners, then attempted to distinguish the decisions contending that such a view was taken by the Apex Court as they claimed seniority. Be it for the purpose of seniority or the purpose of reckoning the prescription of length of service, the question is whether a direct recruit could claim any such relief in respect of a period when he was not actually born in service. In the light of the ratio of the aforesaid, the answer must be in the negative. In other words, a direct recruit could not claim for antedating of his appointment to any date on which he was not born in service for any such purposes. There is no case for the petitioners that they were in the regular service of the Postal Department in 2010 and admittedly, they became postmen or MTS only in the year 2013. In the light of the dictum laid down by the Apex Court in N.K.Chauhan's case which was reiterated in Suraj Parkash Gupta's case, there can be no doubt with respect to the position that a direct recruit could not claim ante dating the year of appointment to a date on which he was not borne in that service. There is yet another reason to dispel the contentions of the petitioners. Though they were given appointments as Postman/MTS only in the year 2013, they had not chosen to challenge the orders of appointment to the extent they were given such appointment only from 2013 and not from 2010, the year in which vacancies occur. None of them had approached any forum raising grievance regarding the delay in conducting LDC Examination. When the appointment as Postman/MTS of GDS is based on a competitive examination, in such circumstances, the delay in conducting the examination cannot be a reason to hold that the appointees ought to have been treated to have been appointed on the date of occurrence of vacancies as who could say with precision that they would have passed the competitive examination had it been conducted earlier. The position that in the case of promotion if administrative reasons alone caused the delay, it could not be permitted to be recoiled on the promotees cannot be applied in the case of direct recruits in the circumstances mentioned hereinbefore. It is to be noted that the petitioners in the said original petitions had not challenged their orders of appointments at any time after their appointments to the post of Postman/MTS. With open eyes they accepted the order of appointment and joined the post of Postman/MTS. Evidently, after joining the said post, they continued to function in that post for years together. In this context, it is to be noted that 15 even now, no direct challenge has been made against the order of appointments to the aforesaid extent. Having failed to raise any challenge against the orders of appointment to the said extent at any point of time and accepted the appointment either as Postman or MTS, the petitioner cannot be permitted to raise any challenge against the orders of appointment indirectly to any extent, whatever be the purpose. What cannot be done directly cannot be permitted to be done indirectly. At this distance of time, the petitioners cannot raise any grievance relating their appointment as Postman/MTS even if it is only for the limited purpose of getting antedated the appointment for acquiring the prescribed length of regular service for appearing for the examination for promotion. In such circumstances, on appreciating the contentions raised by the petitioners at any angle, we do not find any reason to hold that they are entitled to get their order of appointment antedated for the purpose of satisfying the eligibility criteria regarding the length of regular service for earning eligibility to appear in the examination for promotion to the post of Postal Assistant. We have already found that the Tribunal has rightly understood and applied the dictum of the Apex Court in Najithamol's case and in such circumstances, there is absolutely no merit in these original petitions carrying challenge against the impugned order passed by the Central Administrative Tribunal. Therefore, these original petitions have to fail and accordingly, they are dismissed."
10. The Hon'ble apex court in Y. Najithamol & Ors. v. Soumya S.D. & Ors. in Civil Appeal No. 90 of 2015 on 12th August, 2016 held as under:
"3. Aggrieved of the order of the Tribunal, the appellants challenged the correctness of the same by way of filing a Writ Petition before the High Court of Kerala at Ernakulam. The Division Bench of the High Court came to the conclusion that a reading of Columns 11(1) and (2) of the Recruitment Rules does not support the claim that appointments to the said posts are being made by way of direct recruitment instead of promotion. The Division Bench of the High Court held as under:
"We are only concerned with Col.11 (1), 11(2)(i) and 11(2)(ii). The entire vacancies as of now is divided into two portions, i.e. 50% could not be made by promotion from Group D on the basis of their merit in the departmental examination, then the unfulfilled vacancies would go to Extra Departmental Agents on the basis of the rank list in the departmental examination. Then among the other 50%, 25% would go to persons based on the seniority who need not take any departmental examination and for that 25%, if candidates are not sufficient for consideration to the post of Postman based on the seniority, the rest will again go to Extra Departmental Agents based on the merit in the rank list in the departmental examination, then the other 25% from among the Extra Departmental Agents based on the merit in the departmental examination. If still any vacancies are available, from one recruiting division to another postal division is also contemplated and after exhausting that process, if the posts are still remain unfilled again from one postal division located in the same station to another postal division located in the circle. After exhausting the exercise contemplated under Col.11 (1) to (4), if any posts are vacant, then the question of direct recruitment from the nominees of Employment Exchange 16 comes into play. Reading of Column 11(2) to (4), nowhere it refers to any direct recruitment as such. It only says by promotion so far as Group D and if candidates are not sufficient for promotion in Group D, then it goes to Extra Departmental Agents on the basis of merit in the examination. If the intention were to be by promotion only from Group D candidates, then the unfilled from the category under Column 11(1) ought not to have been earmarked for Extra Departmental Agents based on their merit in the Departmental examination."
The High Court accordingly dismissed the Writ Petitions filed by the appellants herein questioning the correctness of the order passed by the Tribunal. Hence the present appeals.
4. We have heard Mr. V. Giri, the learned senior counsel appearing on behalf of the appellants in the Civil Appeal 90 of 2015 and Mr. N.K. Kaul, learned Additional Solicitor General appearing on behalf of Union of India and Dr. K.P. Kylashnath Pillay, learned senior advocate appearing on behalf of some of the respondents.
5. The essential question of law which arises for our consideration in the instant case is whether the appointment of the appellants to the post of Postman is by way of direct recruitment or by promotion.
6. We first turn our attention to the relevant rules at play in the instant case, which are the Recruitment Rules. The Schedule to the said Recruitment Rules specifies the method of recruitment, age limit, qualifications etc. relating to appointments to the said posts. Column 1 specifies the name of the post as Postman/Village Postman, and Column 3 specifies it to be a Group 'C' post.
7. Column 11 of the Recruitment Rules which is at the heart of the controversy in the present case, reads as under:
"Method of recruitment whether by direct recruitment or by promotion or by deputation/transfer and percentage of the vacancies to be filled by various methods :-
1. 50% by promotion, failing which by Extra Departmental Agents on the basis of their merit in the Departmental Examination.
2. 50% by Extra Departmental Agents of the recruiting division of Unit, in the following manner, namely:
(i) 25% of vacancies of postman shall be filled up from amongst Extra Departmental Agents with a minimum of 5 years of service on the basis of their seniority, failing which by the Extra Departmental Agents on the basis of Departmental examination.
(ii) 25% from amongst Extra Departmental Agents on the basis of their merit in the departmental examination.
3. If the vacancies remained unfilled by EDAs of the recruiting division, such vacancies may be so filled by EDAs of the postal division failing in the Zone of Regional Director.
174. If the vacancies remained unfilled by EDAs of the recruiting units such vacancies may be filled by EDAs of the postal divisions located at the same station. Vacancies remaining unfilled will be thrown upon to Extra Departmental Agents in the region.
5. Any vacancy remaining unfilled shall be filled up by direct recruitment through the nominees of the Employment Exchange."
A careful reading of the above Column makes it clear that essentially two 'pools' are envisaged from which appointments to the post of Postman can be made. One is the pool of those candidates who are being promoted, and the other is the pool of the Extra Departmental Agents who are appointed to the said post after passing a departmental examination. 50% of the candidates being appointed to the post of Postman are selected by way of promotion. The remaining 50% of the candidates are selected in two ways. 25% of the candidates are selected from amongst the Extra Departmental Agents on the basis of their seniority in service, and the other 25% candidates are selected from the Extra Departmental Agents based on their merit in the Departmental Examination.
8. Further, Column 12 of the Recruitment Rules reads as under:
"In case of recruitment by promotion/deputation/transfer grade from which promotion/deputation/transfer to be made:
1. Promotion from Group 'D' officials who have put in three years of regular and satisfactory service as on the closing date for receipt of applications through a Departmental examination.
2. Extra Departmental Agents through a Departmental Examination.
3. Direct recruitment through a Departmental Examination."
The post in the instant case, that of Postman is a Group 'C' post. Thus, it is quite natural that 'promotion' to the said post can happen only from the feeder post, which in the instant case, are the Group 'D' posts. Admittedly, GDS is not a Group 'D' post, and members of GDS are merely Extra Departmental Agents.
9. 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.- 1980 (Supp) SCC 668, 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 18 service or class."
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
- (1997) 11 SCC 650 this Court held as under:
"2. The Extra Departmental Agents system in the Department of Posts and Telegraphs is in vogue since 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. [See: Swamy's Compilation of Service Rules for Extra Departmental Staff in Postal Department p. 1.]"
Further, a three-judge Bench of this Court in the case of The Superintendent of Post Offices & Ors. v. P.K. Rajamma - (1977) 3 SCC 94 held as under:
"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 from" 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. The tests of a civil post laid down by Court in Kanak Chandra Dutta's case (supra) are clearly satisfied in the case of the extra departmental agents."
(emphasis laid by this Court) A perusal of the above judgments of this Court make it clear that Extra Departmental Agents are not in the regular service of the postal department, though they hold a civil post. Thus, by no stretch of imagination can the post of GDS be envisaged to be a feeder post to Group 'C' posts for promotion.
10. A Full Bench of the Ernakulam Bench of the Central Administrative Tribunal in the case of M.A. Mohanan v. The Senior Superintendent of Post Offices & Ors. - OA No. 807 of 1999 decided on 3.11.1999 had the occasion to consider a similar question. The majority opinion of the Tribunal held 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 Postmen. They can be treated as only appointed as Postmen. It is further seen from instructions of Director General Posts under Rule 4 of Swamy's publication referred to earlier that EDAs service are terminated on appointment as Postman and hence they become eligible for ex gratia gratuity. If the 19 recruitment of EDAs as Postman is treated as a promotion, the question of termination will not arise. This also leads one to conclude that the recruitment of EDAs Postman cannot be treated as one of promotion.
Further, Hon'ble Supreme Court in C.C. Padmanabhan and Ors. v. 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)
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 nobody'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."
11. The short question raised by the applicants herein was whether they are entitled for consequential benefits like pay and allowances and annual increments from the date of occurrence of vacancies or not. The Hon'ble apex court in Y. Najithamol's case (supra) has held that the selection of 20 extra departmental agents or Gramin Dak Sevaks to the post of Postman under Column 11(2)(ii) of the Recruitment Rules is only by way of direct recruitment and not by way of promotion.
12. The legal position in this matter is crystal clear and there is no scope to interpret this any further. The GDS post being a civil post is not a regular civil post and it is also not the feeder post to the post of Postman. That after clearing the departmental examination from 25% quota with requisite service of 5 years, a GDS gets appointment to the post of Postman. In other words for the first time it gets inducted into the regular civil post only as a Postman. Therefore, the career start with Department of Posts from the date of appointment as Postman and he/she is entitled for salary, increments, upgradation after requisite service, further chances of promotion to higher post only from the date of appointment as Postman.
13. Hence, we are of the view that the seniority and monetary benefits would be granted to the post of Postman only from the date of joining the post after qualifying the LDCE. The condition precedent for recruitment to the post of Postman is selection by qualifying LDCE. The applicants are inducted for the first time in regular civil posts from the date of joining the post. They are born in the cadre only from the date of joining the post.
Therefore, the benefits of pay, increment and seniority from the date of occurrence of vacancy is not available to them. The bench mark is date of joining and certainly not prior to this.
2114. Hence, we holds that the applicants are not entitled for notional fixation of pay, allowances, increments and seniority from the date of occurrence of vacancies and entitle only after the date of joining as Postman as held in the judgment of the apex court in Y. Najithamol's case (supra).
15. The Original Applications fail and hence, dismissed. There shall be no order as to costs.
(ASHISH KALIA) (E.K.BHARAT BHUSHAN)
JUDICIAL MEMBER ADMINISTRATIVE MEMBER
"SA"
Original Application No. 699 of 2012
22
APPLICANTS' ANNEXURES
Annexure A1 - True copy of the communication No.
PSD/TV/Rectt/CAT/Gr'D'/2010 dated 16.7.2010 in respect of the 1st applicant.
Annexure A1(a)- True copy of the communication No. PSD/TV/Rectt/CAT/Gr'D'/2010 dated 16.7.2010 in respect of the 2nd applicant.
Annexure A1(b)-True copy of the communication No. PSD/TV/Rectt/CAT/Gr'D'/2010 dated 16.7.2010 in respect of the 3rd applicant.
Annexure A1(c)- True copy of the communication No. PSD/TV/Rectt/CAT/Gr'D'/2010 dated 16.7.2010 in respect of the 4th applicant.
Annexure A1(d)-True copy of the communication No. PSD/TV/Rectt/CAT/Gr'D'/2010 dated 16.7.2010 in respect of the 5th applicant.
Annexure A1(e)- True copy of the communication No. PSD/TV/Rectt/CAT/Gr'D'/2010 dated 16.7.2010 in respect of the 7th applicant.
Annexure A1(f)- True copy of communication No. B/Rectt/Group D dated 16.7.2010 in respect of the 8 th applicant.
Annexure A1(g)- True copy of communication No. A/Rectt/Gr.D/2010 dated 16.7.2010 in respect of the 2 nd applicant.
Annexure A2 - True copy of the representation dated 19.2.2012 of the 1 st applicant to the 2nd respondent.
Annexure A2(a)- True copy of the representation dated 19.2.2012 of the 2 nd applicant to the 2nd respondent.
Annexure A2(b)-True copy of the representation dated 19.2.2012 of the 3 rd applicant to the 2nd respondent.
Annexure A2(c)- True copy of the representation dated 19.2.2012 of the 4 th applicant to the 2nd respondent.
Annexure A2(d)-True copy of the representation dated 19.2.2012 of the 5 th applicant to the 2nd respondent.
23Annexure A2(e)- True copy of the representation dated 19.2.2012 of the 6 th applicant to the 2nd respondent.
Annexure A2(f)- True copy of the representation dated 19.2.2012 of the 7 th applicant to the 2nd respondent.
Annexure A2(g)- True copy of the representation dated 19.2.2012 of the 8 th applicant to the 2nd respondent.
Annexure A2(h)-True copy of the representation dated 19.2.2012 of the 9 th applicant to the 2nd respondent.
Annexure A3 - True copy of the reminder dated 11.7.2012 submitted by the first applicant to the 2nd respondent.
Annexure A4 - True copy of the appointment order of applicants 1 to 7 vide memo No. PSD/TV/Gr.D/RECTT/2010 dated 16.07.2010 issued by the Superintendent of Postal Stores Depot, Thiruvananthapuram.
Annexure A5 - True copy of the appointment order in respect of applicants 8 and 9 vide No. A/GDS dated 16.7.2010.
Annexure MA1 - Copy of the order of this Hon'ble Tribunal dated 19.6.2015.
RESPONDENTS' ANNEXURES Annexure R1 - True copy of the Hon'ble CAT order dated 29.7.2011 in CP(C) No. 95/09 in OA 352/08 and other connected cases.
Annexure R2 - True copy of the Hon'ble CAT order dated 28.09.2011 in OA No. 145/10.
Original Application No. 659 of 2013 APPLICANT'S ANNEXURES Annexure A1 - True copy of the order dated 15.9.2008 in OA No. 219/2008 of this Hon'ble Tribunal.
Annexure A2 - True copy of the memo No. B-11/11-3/09 dated 22.10.2009 issued by the 1st respondent.
Annexure A3 - True copy of the memo No. OA2/HRO/Group D Appt.
dated 19.7.2010 issued by the Head Record Officer, RMS 24 TV Division, Thiruvananthapuram.
Annexure A4 - True copy of the relevant portion of the seniority list of GDSMM in RMS TV Division.
Annexure A5 - True copy of representation submitted by the applicant to the 1st respondent.
Annexure A6 - True copy of the order NO. B-11/1/MM dated 1.4.2013 issued by the 1st respondent.
RESPONDENTS' ANNEXURES Annexure R1 - True copy of the order of Hon'ble CAT dated 29.7.2011 in CP(C)s in OA No. 312/2008.
Annexure R2 - True copy of the order of Hon'ble CAT dated 28.09.2011 in OA No. 145/2010.
Original Application No. 180/000088/2014 APPLICANTS' ANNEXURES Annexure A1 - True copy of the judgment in WP(C) 34512/2009 dated 23.12.2009 of the Hon'ble High Court.
Annexure A2 - True copy of the order dated 8.7.2010 issued by the Chief Postmaster General, Kerala Circle.
Annexure A3 - True copy of the selection memo B2/Grp.D dated 17.7.2010 issued by the 3rd respondent.
Annexure A4 - True copy of the memo No. GL/1 dated 19.7.2010 issued by the Assistant Superintendent, Changanassery to the 3 rd applicant.
Annexure A5 - True copy of the memo No. B/19-7/2011 dated 22.5.2013 issued by the 3rd respondent.
Annexure A6 - True copy of the representation dated 14.11.2013 submitted by the 1st applicant before the 3rd respondent.
Annexure A6(a)- True copy of the representation dated 14.11.2013 submitted by the 2nd applicant before the 3rd respondent.
Annexure A6(b)-True copy of the representation dated 14.11.2013 submitted by the 3rd applicant before the 3rd respondent.
RESPONDENTS' ANNEXURES 25 Annexure R1 - True copy of the order No. B/MTS/2014 dated 25.6.2014 issued to the applicants.
Annexure R2 - True copy of the order dated 28.9.2011 in OA No. 145 of 2010 of this Hon'ble Tribunal.
Original Application No. 180/000349/2015 APPLICANTS' ANNEXURES Annexure A1 - True copy of the judgment in WP(C) 34512/2009 dated 23.12.2009 of the Hon'ble High Court.
Annexure A2 - True copy of the order dated 8.7.2010 issued by the Chief Postmaster General, Kerala Circle.
Annexure A3 - True copy of the selection memo BB/44/2010 dated 16.7.2010 issued by the 3rd respondent.
Annexure A3(a)- True copy of the selection memo BB/44/2010 dated 14.3.2011 issued by the 3rd respondent.
Annexure A4 - True copy of the selection memo BB/44/2010 dated 6.9.2010 issued by the 3rd respondent.
Annexure A5 - True copy of the memo No. BB/GDS/GTY/2011 dated 3.11.2011 issued by the 3rd respondent.
Annexure A5(a)- True copy of the memo No. BB/GDS/GTY/2011 dated 2.11.2011 issued by the 3rd respondent.
Annexure A6 - True copy of the memo No. AC/ICR dated 26.2.2015 issued on behalf of the 3rd respondent.
Annexure A6(a)- Memo No. AC/ICR dated 26.2.2015 issued on behalf of the 3rd respondent.
Annexure A6(b)-Memo No. AC/ICR dated 26.2.2015 issued on behalf of the 3rd respondent.
Annexure A6(c)- Memo No. AC/ICR dated 26.2.2015 issued on behalf of the 3rd respondent.
Annexure A6(d)-Memo No. AC/ICR dated 26.2.2015 issued on behalf of the 3rd respondent.
Annexure A6(e)- Memo No. AC/ICR dated 26.2.2015 issued on behalf of the 3rd respondent.
26Annexure A7 - True copy of the representation dated 16.4.2015 submitted by the 1st applicant before the 3rd respondent.
Annexure A7(a)- True copy of the representation dated 20.4.2015 submitted by the 2nd applicant before the 3rd respondent.
Annexure A7(b)-True copy of the representation dated 20.4.2015 submitted by the 3rd applicant before the 3rd respondent.
Annexure A7(c)- True copy of the representation dated 20.4.2015 submitted by the 4th applicant before the 3rd respondent.
Annexure A7(d)-True copy of the representation dated 20.4.2015 submitted by the 5th applicant before the 3rd respondent.
Annexure A7(e)- True copy of the representation dated 20.4.2015 submitted by the 6th applicant before the 3rd respondent.
RESPONDENTS' ANNEXURES Nil Original Application No. 180/000569/2015 APPLICANT'S ANNEXURES Annexure A1 - True copy of the judgment in WP(C) 34512/2009 dated 23.12.2009 of the Hon'ble High Court.
Annexure A2 - True copy of the circular dated 8.7.2010 issued by the Chief Postmaster General, Kerala Circle.
Annexure A3 - True copy of the memo BB/44/2010 dated 14.3.2011 issued by the 3rd respondent.
Annexure A4 - True copy of the memo No. BB/GDS/GTY/2011 dated 2.11.2011 issued by the 3rd respondent.
Annexure A5 - True copy of the memo No. AC/B2/2015-16 dtd. 26.6.2015 issued by the 4th respondent.
RESPONDENTS' ANNEXURES Nil Original Application No. 180/000783/2015 27 APPLICANT'S ANNEXURES Annexure A1 - True copy of the judgment in WP(C) 34512/2009 dated 23.12.2009 of the Hon'ble High Court.
Annexure A2 - True copy of the order dated 8.7.20910 issued by the Chief Postmaster General, Kerala Circle.
Annexure A3 - True copy of the order No. B-104 dated 27.7.2010 issued by the 3rd respondent.
Annexure A4 - True copy of the order No. HRO/MM/Rectt/2011 dated 16.3.2011 issued by the 3rd respondent.
Annexure A5 - True copy of the representation submitted by the 1st applicant before the 3rd respondent.
RESPONDENTS' ANNEXURES Annexure R1 - True copy of the letter No. B-104 dated 28.9.2015.
Original Application No. 180/000820/2015 APPLICANT'S ANNEXURES Annexure A1 - True copy of the communication No. PSD TV/Gr D/Rectt/2010 dated 16.7.2010 issued by the 1st respondent.
Annexure A2 - True copy of the representation dated 13.2.2012 to the 2 nd respondent.
Annexure A3 - True copy of the order in OA No. 699/2012 of this Hon'ble Tribunal.
Annexure A4 - True copy of the representation dated 30.7.2015 to the 2 nd respondent.
Annexure A5 - True copy of the order dated 23.5.2013 in OA No. 649/2011 and connected cases of this Hon'ble Tribunal.
RESPONDENTS' ANNEXURES Annexure R1 - Copy of the OA No. 312/08 and connected cases dated 15.12.2008.
Annexure R2 - True copy of OA No. 145/10 dated 28.8.2011.
28Original Application No. 180/000738/2016 APPLICANT'S ANNEXURES Annexure A1 - True copy of the judgment in WP(C) 34512/2009 dated 23.12.2009 of the Hon'ble High Court.
Annexure A2 - True copy of the order No. CO/LC/OA/32/08 dated 8.7.2010 issued by the Chief Post Master General, Kerala Circle.
Annexure A3 - True copy of the selection memo No. B-
3/Rectt/GrD/2010 dated 16.7.2010 issued by the 3rd respondent.
Annexure A4 - True copy of the memo B-3/Rectt/GrD/2010 dated 21.12.2010 issued by the 3rd respondent.
Annexure A5 - True copy of the memo No. B-3/Ex-Gratia/SA/2011-12 dated 30.9.2011 issued by the 3rd respondent.
Annexure A6 - True copy of the representation dated 5.2.2016 submitted by the applicant before the 3rd respondent.
Annexure A7 - True copy of the order No. C/16/2011 dated 11.4.2016 issued by the 3rd respondent.
RESPONDENTS' ANNEXURES Annexure R1 - True copy of the memo No. 1/3/Punalur HO dated 17.7.2010 issued by the Postmaster, Punalur HO.
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