Central Administrative Tribunal - Chandigarh
Devi Dayal Singh Son Of Shri Jethi Ram vs Union Of India Through The Secretary on 25 April, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
OA No.060/00252/2015
Date of decision: 25.04.2017
CORAM: HONBLE MR. JUSTICE M.S. SULLAR, MEMBER (J)
HONBLE MR. UDAY KUMAR VARMA, MEMBER (A)
Devi Dayal Singh son of Shri Jethi Ram, aged 44 years, working as Postmaster Grade-I, Kartarpur S O, District Kapurthala, Punjab.
. Applicant
(Argued by: Mr. Rohit Sharma, Advocate)
Versus
1. Union of India through the Secretary, Government of India, Ministry of Communications & Information Technology, Department of Posts, Dak Bhawan, New Delhi.
2. Chief Postmaster General, Punjab Circle, Sandesh Bhawan, Sector 17E, Chandigarh.
3. Senior Superintendent of Post Offices, Kapurthala Division, Kapurthala.
4. Senior Superintendent of Post Offices, Sangrur Division, Sangrur.
Respondents
(Argued by: Mr. Arvind Moudgil, Advocate)
ORDER (ORAL)
HONBLE MR. JUSTICE M.S. SULLAR, MEMBER (J):-
1. The challenge in this Original Application (OA), filed by applicant Devi Dayal Singh son of Jethi Ram, is to the impugned order dated 5.1.2015 (Annexure A-X) and 25.5.2012 (Annexure A-1), whereby his claim for appointment to the promotional post of Inspector of Posts (IPO), was rejected by the Competent Authority.
2. The matrix of the facts and material, culminating into the commencement, relevant for deciding the instant OA, and exposited from the record, is that the applicant was working as a Postal Assistant under Sangrur Division, Punjab Circle, Chandigarh. There are two channels of promotion from the post of Postal Assistant, one to the post of IPO and 2nd Post Master Grade-I (PMG-I). The post of IPO is stated to be much prestigious than the post of PMG-I.
3. Sequelly, the applicant, claiming himself to be eligible, applied and Department permitted him to appear in the examination for the post of IPO on 15/16th October, 2011. It was alleged that even the Department issued executive instructions dated 24.8.2011, clarifying the eligibility of PMG-I for appearing in examination for appointment to the post of IPO, wherein, it was stated that PMG I officials, who qualified and undergone the training as such, may be permitted for appearing in the said examination of IPO, if they were not appointed as PMG-I by that time.
4. The case set up by the applicant, in brief, in so far as relevant is that he was declared successful as PMG-I in the revised result declared on 16.11.2011 and he joined his duties as such, in pursuance of the appointment letter, on 14.12.2011. He was sent on training w.e.f. 23.1.2012 at Saharanpur, after joining as PMG-I. Meanwhile, the 3rd paper of IPO which was held on 16.10.2011 was cancelled by the department under the pressure of Service Union, as it was set, out of syllabus. 3rd paper of IPO was re-scheduled on 29.1.2012. The applicant was permitted to re-appear in the examination, when he was under training, with permission of the Competent Authority. However, when the result of IPO was declared, the competent authority decided that PMG-I officials, who appeared in the examination for IPO Examination, 2011, are not eligible for promotion as IPO. It was pleaded that while working on the post of Postal Assistant, the applicant appeared in both the examinations for promotion to the posts of IPO as well as PMG-I, held simultaneously. The result of examination for the post of PMG-I was declared earlier and the applicant was promoted and joined as such. Although he has also qualified and cleared the examination for promotion to the post of IPO, but his claim on the said post was rejected mainly on the ground that he has already joined the post of PMG I. It was claimed that although the applicant was eligible and successfully completed the recruitment process for the post of IPO, but his claim was wrongly rejected by the competent authority vide impugned orders dated 5.1.2015 (Annexure A-X) and 25.5.2012 (Annexure A-1).
5. Aggrieved thereby the applicant has preferred the instant OA challenging the impugned orders, Annexures A-X and A-1 and action of the respondents on the following grounds :-
(1) That thus impugned orders, Annexure A-X and A-1 declaring the applicant as not eligible for appointment as IPO is improper, unfair and arbitrary, illegal, harsh, discriminatory, unreasonable, violative of articles 14 and 16 of the Constitution of India, colourable exercise of powers, and as such is liable to be quashed and set aside with direction to the respondents to appoint the applicant as IPO from due date with all the consequential benefits.
(2) That undisputedly it is apparent from the facts of the case that the ineligibility of a person from appearing in IPO Examination is only if he has been appointed as Postmaster Grade I. If a person who appears in examinations of both posts simultaneously, the stage of his ineligibility has gone and as such he cannot be declared as ineligible as ineligibility is to be seen on the date of the examination and not at the time of actual promotion as the instruction also talk about ineligibility for appearing in examination only and not about actual appointment. Thus, impugned orders stand vitiated.
(3) That the action of respondents on the face of it is illegal and arbitrary and there is no logic or reason to deny him promotion / appointment as IPO despite the fact that he was duly eligible and qualified to appear in the examination and action of respondents is in colourable exercise of powers. Thus, the impugned orders stand vitiated.
(4) That action of respondents has snatched the fundamental right of proper consideration of the applicant against a public post which is violative of articles 14 and 16 of the Constitution and as such the impugned orders and action of respondents stands vitiated.
(5) That the action of respondents is totally unfair and it is well settled law that requirement of fairness implies that even an administrative authority must not act arbitrarily or capriciously and must not come to a conclusion which is perverse or is such that no reasonable person properly informed could arrive at. Thus, the impugned orders and action of respondents stands vitiated.
(6) That the action of respondents is prima facie unreasonable because there is no discernible principle to justify it and the respondents have indulged in abuse of power.
(7) That the action of the respondents is unfair, illegal, unjust, discriminatory, arbitrary, violative of principles of natural justice, harsh, violative of articles 14 and 16 of the Constitution of India and cannot be sustained in the eyes of law.
(8) That once a wrong has been committed with the applicant, remedy has to be there and his rights cannot be snatched. It has been held that a party cannot be rendered remediless as there can be no dispute to settled legal proposition that if there is a wrong there must be a remedy as held in Rameshwar Lal Vs. Municipal Council, Tonk, (1996) 6 SCC 100 and Smt Jatan Kanwar Golchha Vs. Golchha Properties Pvt. Ltd., AIR 1971 SC 374). Once a beneficial promotional avenue is available to the applicant, he cannot be forced to accept a less favourable appointment on a technical reason which is not even available in his case.
(9) That the impugned order is not a speaking order as it does not touch upon any of the issues raised by the applicant and is based upon conjectures and surmises and as such is liable to be quashed and set aside.
(10) That the case of the applicant cannot be compared with other cases relied upon by respondents as those cases / decisions are distinguishable on facts and law and in those cases the facts were crystal clear that the individuals had enough time to take a decision one way or the other but in this case he was kept in dark and his result was kept under mystery for obvious reasons.
6. Levelling a variety of allegations and narrating the sequence of events in detail, in all, the applicant claims that he was eligible for promotion to the post of IPO also but his claim was rejected mainly on the ground that he has already joined on the promotional post of PMG-I. On the strength of the aforesaid grounds, the applicant seeks to assail the impugned orders, in the manner indicated hereinabove.
7. On the contrary, the respondents have refuted the claim of the applicant and filed the written statement, wherein it was pleaded that the applicant being SC candidate, applied for appearing in the PMG I Limited Departmental Competitive Examination (LDCE), 2011. In the supplementary result declared on 16.11.2011, the applicant was promoted as PMG-I. He has also applied for the examination for the post of IPO and he appeared in the re-examination of Paper III held on 29.1.2012. It was pleaded that at the time of tabulation of result, it was noticed that certain PMG-I qualified candidates, including the applicant, were also in the select list of IPO. However, as per the advice of the Nodal Branch, candidates, who have already been promoted as PMG-I, could not be considered and be held as eligible for the post of IPO. As such, the name of the applicant was not included in the select list, for promotion post of IPO. As the applicant has accepted the promotional post of PMG-I, so he is not entitled to be appointed on the promotional post of IPO, in view of the observations of the C.A.T. Cuttack Bench, Cuttack in OA No. 640 of 2011 decided on 10.4.2012 in the case of Subrat Kumari Mahali Vs. Union of India etc. (Annexure R-1) and C.A.T. Bangalore Bench, Bangalore, in OAs No.198/2012, 222/2012 and 223/2012 decided on 19.7.2012 in the case of P.N. Sathish & Others Vs. Union of India & Others (Annexure R-2)
8. According to the respondents, subsequently the applicant also appeared in LDCE for the post of IPO held on 15/16th October, 2011. The applicant was declared successful ion the revised result declared on 16.11.2011 for the post of PMG-I. He accepted the offer and joined induction training and was appointed as PMG-I on 2.1.2012, whereas the result for the promotion post of IPO LDCE Examination, 2011, was declared on 4.4.2012. In case the applicant was not willing to join promotional post of PMG I, he should have given specific refusal at that time. Thus, he is not entitled to the promotional post of IPO.
9. Instead of reproducing the entire contents of the reply and in order to avoid repetition of the facts, suffice it to say that, virtually acknowledging the factual matrix and reiterating the validity of the impugned orders and their action, the respondents have stoutly denied all other allegations and grounds contained in the OA and prayed for its dismissal. That is how, we are seized of the matter.
10. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over entire matter, we are of the firm view that the instant OAs deserve to be accepted, in the manner and for the reasons, mentioned herein below.
11. As indicated hereinabove, that the facts of the case are neither intricate nor much disputed, and fall within a very narrow compass, in order to decide the real controversy, between the parties. Such being the position on record, now the short and significant question that arises for our consideration, in this case is as to whether the applicant could legally be debarred to be promoted to the post of IPO, the result of which was declared subsequently, than he qualified the examination for promotional post of PMG-I or not?
12. Having regard to the rival contentions of the learned counsel for the parties, to our mind, the answer must obviously be in the negative, in this regard.
13. Ex-facie the main argument of the learned counsel for the respondents, that since the applicant has already accepted the promotional post of PMG-I, so his claim for promotional post of IPO was rightly rejected by the competent authority, is not only devoid of merit, but mis-placed as well.
14. As is evident from the record that the applicant was working on the post of Postal Assistant. There were two channels of promotion from the post of Postal Assistant, i.e. one promotional post of IPO and 2nd PMG-I. The applicant appeared and qualified LDCE Examination for promotional posts of IPO as well as PMG-I. The result for promotional post of PMG-I was declared earlier in point of time, so the applicant was appointed on the promotional post of PMG I, whereas the declaration of result of 3rd paper for promotional post of IPO held on 16.10.2011, was cancelled being beyond syllabus and it was re-scheduled on 29.1.2012. The applicant was duly permitted to re-appear in the examination and he was re-issued roll number as well and cleared the said examination.
15. Likewise, the next contention of the learned counsel for the respondents that the applicant appeared in 3rd paper for the promotional post of IPO, without permission of the Competent Authority, pales into insignificance as he duly applied regarding permission / special leave for appearing in the examination of IPO, with reference to letter No.A-34012/04/2011-DE dated 6.1.2012, vide application dated 25.1.2012 (Annexure A-12), which was duly granted by the competent authority, vide letter dated 27.1.2012 (Annexure A-12 Coolly).
16. Moreover, it is not a matter of dispute that instructions dated 24.8.2011 (Annexure A-4) of Government of India, Ministry of Communications & IT, Department of Posts, New Delhi, conveyed to the Chief Postmaster General, postulate that the candidates, who qualified the Departmental PMG-I Examination and the officials who were undergoing training for PMG-I, may be permitted to appear in LDCE for promotion to the cadre of IPO to be held on 3-4 September, 2011, if they were not yet appointed as PMG-I.
17. It was the relevant authority, who could not simultaneously declare the result for promotional post of IPO and PMG-I and applicant cannot possibly be blamed in this regard. Had the result been simultaneously declared for both the promotional posts of IPO as well as PMG-I, then applicant could have chosen the promotional post of IPO, of his choice. The mere fact that the result of the promotional post of PMG-I was declared earlier and applicant joined as such, ipso facto, is not a ground, much less cogent to deny him promotional post of IPO. This matter is no longer res-integra and now is well settled.
18. An identical question initially came to be decided by the Honble High Court of Delhi in the case Union of India vs. Virender Kumar Dahiya, Writ Petition ) No. 4833 / 2014 decided on 28.8.2014 wherein it was held as under :
5. This Court has considered the submissions. What is not disputed in this case is that on the relevant dates for determination of eligibility, i.e. 12th May, 2011 and 30th June, 2011 in respect of the post of Postmaster Grade-I and Inspector of Posts respectively, the respondent applicant was indeed eligible for applying for both the posts. It is also not disputed that he did so. It is an entirely fortuitous circumstance that the department decided to hold the selection process of LDCE in respect of the Postmaster Grade-I earlier than that of Inspector of Posts. Being a meritorious candidate, the respondent applicant was selected as Postmaster Grade-I. However, this fortuitous circumstance is now being used against him to prevent his legitimate claim for competing in respect of the post of Inspector of Posts, which concededly, carries higher pay. We notice that the CAT had relied upon the judgment of the Supreme Court in State of Uttar Pradesh 2003 (1) SC SLJ 56 and Mills Douglas Michael and Ors. V. UOI and Ors. JT 1996 (4) SC 189, where the Court had held that the eligibility of candidate for a post has to be determined with reference to the date of advertisement or notification. The stand of the petitioner, to say the least, appears to be absurd and opposed to reason. It seeks to suppress merit and kill the motivation of its employees to excel and compete. In these circumstances, this Court is of the opinion that the directions contained in the impugned order are fair and reasonable and do not call for interference. The writ petition is accordingly dismissed.
19. Again, relying upon the ratio of law laid down in Virender Kumar Dahiyas case (supra), the Honble Delhi High Court, in the case of Jawahar Singh Vs. Union of India etc. WP ) No. 1564/2013 decided on 11.12.2014 (Annexure A-28), has ruled that the petitioner (therein) was entitled to be appointed as Inspector of Posts according to merit in the selection process, which he had successfully cleared, with effect from the date on which others were appointed.
20. Not only that, again the Honble High Court of Delhi in the case of Satish Kumar Meena Vs. Union of India etc. Writ Petition(C) No. 3591 of 2016 decided on 22.2.2017, examined the identical issue and has held as under :-
20. The executive policy decision in the present case is not only contrary to the Recruitment Rules, but fails to take into account relevant facts. In the present case, the results for selection to the posts of Inspector of Posts were delayed for administrative reasons. This delay was not factored and considered before the letter dated 11th July, 2012 was issued to the petitioner informing him that he was not eligible for promotion as Inspector of Posts as he had been promoted and appointed as Postmaster Grade-I. The fortuitous circumstances beyond the control of the candidates as per the policy decision would bestow and confer right to appointment as Inspectors of Posts to candidates lower in the order of merit and disqualify the petitioner and others higher in the order of merit. It is in this context the question of invidious discrimination would arise. We are unable to understand the reasoning and ground to bar or prohibit the petitioner by creating this fetter for selection / appointment, and even though they had permitted the petitioner to appear in Paper No. III for the post of Inspector of Posts on 29.01.2012. The oscillation demonstrates that the respondents were themselves confused and uncertain. However, instead of being fair, and giving the meritorious candidates a chance, they have denied and deprived the petitioner his right to appointment, even after being selected.
21. Considering all the circumstances, for the foregoing reasons the petition is allowed. The petitioners case for appointment as Inspector of Posts will be considered according to merit position in the selection process. He would not be treated as disqualified as he was appointed as Postmaster Grade-. If selected, the petitioners appointment will be with effect from the date on which his immediate junior was appointed. However, only notional benefit of pay fixation and all others consequential benefits including seniority shall be given but not the arrears of salary. The consequential and necessary orders shall be issued by the respondents within a period of six weeks from the date a copy of this order is received. No order as to costs.
21. Therefore, it is held that the applicant is entitled to be promoted on the promotional post of IPO, in the obtaining circumstances of the case. His claim was wrongly rejected by the impugned order dated 5.1.2015 (Annexure A-X) and 25.5.2012 (Annexure A-1) by the competent authority, which cannot legally be sustained. The contrary argument of the learned counsel for the respondents, stricto sensu, deserves to be and is hereby repelled, in the present set of facts. On the contrary, the ratio of law laid down in the indicated judgments, mutatis mutandis, is applicable to the instant controversy and is a complete answer to the problem in hand.
22. No other point worth consideration has either been urged or pressed by the learned counsel for the parties.
23. In the light of the indicated reasons, the instant OA is accepted. As a consequences thereof, the impugned orders dated 5.1.2015, Annexure A-X and dated 25.5.2012 (Annexure A-1) relatable to the debarment of the applicant from promotional post of IPO, are set aside. At the same time, the respondents are directed to appoint the applicant on the promotional post of IPO, as per his merit position in the selection process, which he successfully cleared, w.e.f. the date on which other similarly situated persons were appointed, within a period of one month from the date of receipt of a certified copy of this order. However, the applicant shall only be entitled to the notional benefit of pay fixation and other consequential benefits, without any back wages. However, the parties are left to bear their own costs.
(UDAY KUMAR VARMA) (JUSTICE M.S. SULLAR)
MEMBER (A) MEMBER (J)
Dated: 25.04.2017.
HC*
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OA No.060/00252/2015