Central Administrative Tribunal - Delhi
Sajat Kaushik vs D/O Post on 17 February, 2016
Central Administrative Tribunal
Principal Bench
OA No.524/2013
Order pronounced on : 17.02.2016
Hon'ble Mr. A.K. Bhardwaj, Member (J)
Hon'ble Mr. V.N. Gaur, Member (A)
Sajat Kaushik,
S/o Shri S.P. Kaushik,
R/o H.No.56, ShahpurJat,
New Delhi-49.
...applicant
(By Advocate : Shri M. Sharda)
Versus
1. Union of India,
Through its Secretary,
Department of Posts,
DakBhawan,
New Delhi-1.
2. Assistant Director (Staff and Legal),
Department of Posts,
Delhi Circle,
MeghdootBhawan,
New Delhi-110001.
3. Sr. Supdt. Of Post Offices,
New Delhi South Division,
New Delhi-110019.
...respondents.
(By Advocate : Shri RajindereNischal)
ORDER
Hon'ble Shri V.N.Gaur, Member (A) The applicant has filed this OA with the following prayers:- 2 OA No.524/2013
"(1) Set aside the order dated 7.9.2012 and letter dated 23.05.2013 passed by the respondent No.2 as illegal, unfair and arbitrary; and (2) grant/fix the seniority of the applicant with all consequential monetary benefits from the date i.e. 5.4.2008 from which his immediate junior has been appointed as Postman, who appeared in the same Postman exam held on 5.8.2007;
(3) Award cost of litigation; and (4) Pass such further order(s) in favour of the applicant as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
2. The applicant who was earlier working as GDSBPM Shahpur Jat, BO New Delhi, South Division appeared in the examination conducted by the respondents on 05.08.2007 to fill up vacancies of Postman of the years 2005 and 2006. The result of this examination was declared four times due to clubbing of the vacancies for the year 2005-06. The applicant who secured14 marks in the Paper-II, qualifying marks being 22½, did not qualify in the examination. From the information obtained under RTI, the applicant discovered that there was an error in evaluation of his answer sheet for Paper-II which led to awarding of lower marks. On his representation the respondents re-evaluated his answer script and the applicant secured qualifying marks in Paper-II. His result was declared on 11.06.2010 and he was appointed as Postman w.e.f. 28.06.2010.
3 OA No.524/2013
3. The learned counsel for applicant stated that in the examination held in 2007, the candidates were required to attempt five questions out of seven in Paper-II. The applicant, however, attempted all the seven questions. According to the examination rules, the respondents were to consider marks of the best five out of seven questions attempted but the examiner checked only the first five questions and awarded him 14 marks as a result of which the applicant did not qualify. Later the respondents realised their mistake and corrected the situation by appointing the applicant as Postman w.e.f. 28.06.2010. It is trite that once there was delay in appointment of the applicant because of the mistake on the part of the respondents, the applicant ought to have been given appointment from the same date i.e. 05.04.2008, on which his junior had been appointed. The applicant was also entitled to seniority and other consequential benefits. The respondents have by order dated 23.05.2013 (impugned) granted him seniority according to his position in the Postman Examination 2007, giving the benefits of pay fixation also but the arrears of pay and allowances have been denied. The respondents have also not allowed him to appear in the departmental Lower Grade Officials (LGO) examination as the period 05.04.2008 to 27.06.2010 has not been counted towards the eligibility period of three years required for the LGO examination. The applicant was provisionally allowed by this Tribunal to appear in the LGO examination and granted 4 OA No.524/2013 leave to the applicant to challenge the order dated 23.05.2013 by filing an amended OA. The applicant, has, accordingly, amended the OA. According to the learned counsel once the respondents have admitted their mistake and granted seniority to the applicants from 05.04.2008 the applicant is entitled to all benefits including the arrears of pay and allowances and counting of service from 05.04.2008 for the purpose of determining eligibility for departmental examination.
4. The learned counsel for respondents submitted that there was an error in the beginning at the time of checking his answer script in the year 2007, however, the department had already corrected it and appointed him as Postman on 28.06.2010. His request for seniority and pay fixation has also been accepted. However, he is not entitled to arrears of pay and allowances on the basis of 'no work no pay' principle. In the LGO Exam Notification dated 17-06- 2013 the eligibility criteria for the cadre of Postal Assistants/Sorting Assistants for the year-2013 is that the applicant should have rendered a minimum 3 years of service on regular basis in the Postman grade as on 01-01-2013. Since, the applicant has not rendered 3 years regular service as Postman as on 01-01-2013, counting from the date of his appointment as Postman, he is not eligible to appear in the said exam. 5 OA No.524/2013
5. We have heard the learned counsels from both sides and perused the record. The applicant has prayed for all consequential monetary benefits from 05.04.2008 i.e. the date on which his immediate junior had been appointed as Postman, who appeared in the same examination held on 05.08.2007 and for quashing of the orders dated 07.09.2012 and 23.05.2013.
6. With regard to the monetary benefits from 05.04.2008, it is noted that following the representation received from the applicant the respondents have not only appointed him as Postman but also granted seniority and pay fixation benefits at par with his junior appointed on the basis of the result of 2007 examination. It is an admitted fact that the applicant had attempted seven questions in paper-II and the examiner checked the first five answers. As per the rules/guidelines of evaluation, the answer script required that in such circumstances all the answers should have been checked and the best five should have been taken to determine the merit position of the applicant, as was done by the respondents at later stage. It is true that while considering the question of granting of arrears of pay and allowances, normally, the principle of 'no work no pay' is followed. However, as has been established in many pronouncements of Hon'ble Supreme Court, when the delay in promotion or appointment is absolutely due to the mistake on the part of the respondents, the petitioner cannot be denied the same benefit that has been given to any of his juniors in the normal 6 OA No.524/2013 course. The Hon'ble Supreme Court in Union of India vs. K.V.Jankiraman, AIR 1991 SC 2010 has held as under :-
"The normal rule of 'no work no pay' is not applicable to cases such as the present one where the employee although he is will to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him."
7. Relying on the above judgment, the Punjab and Haryana High Court earlier in Suresh Kumar. Vs. State of Punjab & another has held thus :-
"For the reasons mentioned above, I find merit in the present petition. It is established that the petitioner was denied promotion on the Civil Writ Petition No. 468 of 2012 date when his juniors were promoted though the petitioner was also having same qualification. After he was granted promoted with retrospective effect in terms of the directions issued by this Court for consideration of his case, he cannot be denied benefit of arrears of salary. The impugned order dated 11.3.2010 communicated vide endorsement dated 16.04.2010 (Annexure P-8) denying the arrears of salary to the petitioner from 16.02.2001 till 17.09.2008, is set aside. The respondents are directed to pay all consequential benefits to which the petitioner is entitled to on account of his promotion from back date. The arrears shall be payable for the period of 38 months prior to the date when the petitioner filed earlier petition raising a grievance about his non-promotion till the date he was actually promoted from retrospective effect. The arrears be calculated and paid within a period of four months from the date of receipt of copy of this order. Considering the peculiar facts situation in the State of Punjab where the employees are not even being paid their retiral dues for service/terminal benefits in time because of paucity of funds, I do not consider it appropriate at this stage to grant any interest to the petitioner though he may be entitled to, in normal circumstances.
The petition stands disposed of."
8. The law laid down in K.V.Janakiraman's case is that the normal rule of 'no work no pay' will not apply to a case where the 7 OA No.524/2013 employee although he was willing to work, was kept away from work by the authorities for no fault of his. In the present case we cannot say that the conduct of the applicant was totally faultless. He was required to attempt only 5 questions but either due to oversight or intentionally, the applicant attempted all the seven questions and expected the examiner to check all the seven questions and then decide which combination of 5 questions will fetch him the best marks. First of all it was the duty of the applicant to attempt what he considered as the best five questions that would be most beneficial to him but instead of applying his mind he attempted seven questions leaving the rest of the exercise to done by the examiner. This caused unnecessary burden on the examiner who has to check so many answer sheets. The departmental instruction to examiner to give benefit of the best five questions to the examinee is to meet contingency where a candidate has failed to observe the instructions. The departmental instruction to examiner is generous and in favour of the examinee. On that basis in the present case the respondents have given appointment to the applicant after rectifying the error and also given him seniority and increments in fixation of pay. However, the delay in his appointment cannot be solely attributed to the respondents as the applicant's negligent action was the reason for the ensuing confusion in evaluation of his answer sheet. The applicant cannot get advantage of K.V.Janakiraman's case as the 8 OA No.524/2013 conduct of the applicant does not fall in the category where it can be said that he was "kept away from work by the authorities for no fault of his."
9. The Recruitment Rules (RRs) for the post for Postal Assistant and Sorting Assistant provide for 50% of the vacancies to be filled by promotion through Limited Departmental Examination (LDCE) failing which by direct recruitment of Gramin Dak Sewaks who fulfil the laid down conditions and the remaining 50% by direct recruitment. For the LDCE, also referred to as Lower Grade Officials (LGO) examination, a Postman should have worked in the grade for a period of three years before being admitted in the examination. According to the notification dated 17.06.2013 a candidate should have regular service of three years as Postman on 01.01.2013 while the applicant completed only 2 ½ years. This Tribunal in order dated 27.08.2013 noted the decision of the respondents to provisional allow the applicant to appear in the LGO examination. It is relevant to note here that the LGO examination is not restricted to the grade of Postman but is open to Male Guard, Despatch Rider and Multi Tasking Staff. The argument of the applicant is that had the applicant been given appointment in the first instance in 2008 he would be completing more than 4 years of service on 01.01.2013 and would have been eligible to appear in the LGO examination. We are not persuaded by this argument of the applicant as the seniority from a back date 9 OA No.524/2013 and eligibility under a statutory RRs are two different propositions. The benefit of seniority will be available to the applicant where the promotion is taking place on the basis of seniority. In this case promotion is on the basis of performance in LGO examination in which a Postman with three years of service only along with some other categories of staff, can appear. The applicant cannot be stated to have three years service by virtue of his seniority in the category of Postman.
10. In the light of foregoing discussion we find the OA to be devoid of merit and the same dismissed as such. No costs.
( V.N. Gaur ) ( A.K. Bhardwaj ) Member (A) Member (J) 'rk'