Central Administrative Tribunal - Ernakulam
Sasi N.S vs Senior Superintendent Of Post Offices on 25 October, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. NO. 1050 OF 2010
Tuesday, this the 25th day of October, 2011
CORAM:
HON'BLE Dr. K.B.S. RAJAN, JUDICIAL MEMBER
HON'BLE Mrs. K. NOORJEHAN, ADMINISTRATIVE MEMBER
Sasi N.S, S/o. Sivaraman
GDS Mail Deliverer
Palakkuzha, Palakkuzha (P.O)
Residing at Nellikunnel House
Palakkuzha (P.O), Koothattukulam (via)
Ernakulam District - 686 662. ... Applicant
(By Advocate Mr. M. Paul Varghese)
Versus
1. Senior Superintendent of Post Offices
Aluva Division, Aluva - 683 101.
2. Post Master General,
Central Region, Kochi -18.
3. Chief Post Master General
Kerala Circle, Thiruvananthapuram.
4. Director General of Posts
Department of Posts
Dak Bhavan, New Delhi.
5. Union of India represented by its
Secretary, Ministry of Communications
New Delhi.
6. Shri Ashraf M.M
GDS Mail Deliverer
West Vengola residing at
Mannuparambil House,Onamkulam,
Vengola (P.O), Valayanchirangara. .... Respondents
(By Advocate Mr. Sunil Jacob Jose, SCGSC for R1-5)
Mr.P.C. Sebastian for R-6)
The application having been heard on 12.10.2011, the Tribunal on
25.10.2011 delivered the following:
O R D E R
HON'BLE Mrs. K. NOORJEHAN, ADMINISTRATIVE MEMBER The applicant has moved this Original Application as he is aggrieved by the fact that his selection as Postman was later on cancelled without assigning any reason whatsoever.
2. The applicant joined as Gramin Dak Sevak Mail Deliverer (GDSMD for brevity) on 01.03.2001. He participated in the examination held for recruitment to the cadre of Postman/Mail Guard on 29.08.2010. As per the recruitment Rules (Annexure A-8), 50% of the vacancies in the cadre of Postman will be filled up by promotion from Group D cadre and the remaining 50% will be filled up from the GDS, 25% under direct recruitment and 25% under seniority quota. Unfilled vacancies from the 50% departmental quota for the Group D will be thrown open to the GDS direct recruitment merit quota. Vide Annexure A-2 notification, 6 vacancies each were notified for departmental and GDS quota. As no departmental candidate qualified against 6 vacancies notified, they were added to the merit quota for GDS thus increasing the total number of vacancies to 9. The community-wise break up of the nine vacancies was notified as UR-5, OBC-3 and SC-1. The applicant having been selected under OBC category was directed to undergo the training for Postman for a duration of 10 days from 15.11.2010 to 24.11.2010 (Annexure A-3). He finished the practical training in Aluva Head Post Office. After successful completion of the said practical training, the applicant was issued with a letter of appointment vide (Annexure A-4). It was noted in Annexure A-4 that the appointment is governed by Central Civil Service (Temporary Services) Rules, 1965 and the appointment may be terminated at any time by one month's notice by the appointing authority. In obedience to the aforesaid Annexure A-4 Order, he reached Piravom Post Office but was not permitted to join as it was informed by the Post Master that he received orders from his superior officer that the applicant cannot be allowed to join. Two days thereafter, he received a registered mail stating that his appointment as Postman is cancelled (Annexure A-5). He received another memo the next day intimating the applicant that the 6th respondent is selected as Postman under O.B.C. quota. On enquiry, the applicant came to know that the 6th respondent and the applicant obtained same marks in the Departmental Examination and his appointment was cancelled as the GDS with longer length of service getting equal marks has to be selected. This decision of the first respondent is stated to be based on letter of the Director General of Posts produced as Annexure A-7. He avers that the DG's orders are not applicable for Direct Recruitment under merit quota to the cadre of GDS for the post of Postman. According to him, when there is a tie of marks, the deciding factor should be the marks obtained in matriculation, the essential qualification for selection as Postman. He got 426 marks out of 600 in SSLC and according to his knowledge, the applicant has got less marks in SSLC. Therefore, he avers that it is illegal to cancel the appointment order already issued to him without affording him a reasonable opportunity to be heard and without showing any reason in the cancellation letter. He, therefore, avers that the action of the first respondent is illegal, arbitrary and unreasonable.
3. The respondents controverted the contention of the applicant and filed reply statement. They submitted that there is a common examination for recruitment to the cadre of Postman from both departmental and GDS candidates. It is a competitive examination, wherein the qualifying standard is fixed as 45% in each paper. The selection is made on the basis of merit and those who have secured the highest marks will be declared as selected to the extent of vacancies notified. Accordingly, 5 candidates under UR category, 3 candidates under OBC category and one candidate under SC community were declared as selected. The applicant figured as the 3rd candidate in the select list. Accordingly, he was sent for training. After successful completion of the practical training, the offer of appointment was issued to him vide Annexure A-1. It was only after issuance of the appointment order, it was found that one OBC candidate viz., Shri M.M Ashraf, the 6th respondent got equal marks as the applicant and he is senior to the applicant as per seniority list. Hence, as per the extant orders, the 6th respondent had to be selected in the place of the applicant. The administration had no option but to correct the mistake by cancelling Annexure A-4 order of the applicant and by issuing Annexure A-6 order to the 6th respondent. This was done before the applicant joined the post in accordance with DG (Posts) instruction issued on 08.11.1995 produced vide Annexure A-7.
4. Respondents relied on the judgement of the Hon'ble Supreme Court in the case of Union of India and others Vs. Basudeba Dora and others [2003-SCC (LPS 191)] that "it is within the competency of the state to change the rules relating to a service and it is not for the statutory Tribunals, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion Therefore, the averment of the applicant that the merit in the qualifying examination should have been the criteria for the selection when a tie of marks occurred in the competitive examination, rather giving weightage to the length of service is not tenable. Marks scored by the applicant at the matriculation level have no role for considering him for appointment to the post of Postman". The position of the 6th respondent in the seniority list is 514 whereas that the applicant is 546 and both of them secured 142 marks in the examination. The 6th respondent is senior to the applicant both in the seniority list and as per the age.
5. The applicant filed rejoinder reiterating his earlier contention. Besides, he obtained information under RTI Act and found that there are two vacancies in the post of Postman as on 19.02.2011 and hence he requests for directing the respondents to accommodate him against one of the existing vacancies.
6. The respondents filed additional reply statement to the rejoinder and they submitted that the applicant appeared for the competitive examination for the vacancies for the year 2010 and hence his prayer to accommodate him against vacancies of 2011 is not tenable. They stated that it is open to the applicant to appear for the examination for the vacancies of 2011 when the exam is conducted.
7. Heard the counsel for the parties and perused the documents.
8. The undisputed fact is that the applicant and the 6th respondent secured equal marks in the examination held to fill up the vacancies in the post of Postman cadre in the direct recruitment GDS merit quota in the year 2010. Under such circumstances, the respondents are expected to follow the guidelines issued by the Department of Personnel and Training in their letter No. 6-6/93/Estt (D) dated 18.05.1993, which was circulated by the DG (Posts) in his letter No. 5-10/93/DE dated 08.11.1995. The relevant instructions of the DOPT, to be followed by the Central Government Departments is extracted below:-
"'SELECTION' :- if two or more candidates got clubbed due to obtaining of equal marks against last vacancy to be filled on the basis of the competitive exam. Selection of senior-most of such candidates in the merit shall be made based on their Inter-se-Seniority in the feeder post, if they belong to common seniority list, if not their length of regular service in the feeder post may be taken into account for this purpose."
A perusal of the seniority list at R-1 shows that the applicant at Sl. No 546 has joined as a GDS on 01.03.2011 and his date of birth is 13.12.1974 while the 6th respondent is working as GDS from 22.10.1998 and his date of birth is 04.05.1968. Perhaps on receipt of a representation from the 6th respondent, the R-1 immediately rectified the mistake. It was a temporary appointment with a probation period of two years from the date of joining the post. As per the terms and conditions of the appointment, it could be terminated at any time. The applicant did not join the post at all. Therefore, we do not find anything arbitrary or illegal in the decision taken by the first respondent to cancel the appointment of the applicant and issue letter of appointment to the 6th respondent. It is settled law that only notified vacancies can be filled up. The nine vacancies notified for filling up the vacancies for the Postman in the year 2000 stand filled up. Hence, there is no provision to increase the number of vacancies especially since these vacancies have arisen after the conduct of the examination in 2010. Therefore, the prayer of the applicant is not legally sustainable.
9. The Original Application being devoid of merit, is dismissed. No costs.
(Dated, the 25th October, 2011)
K. NOORJEHAN Dr. K.B.S. RAJAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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