Central Administrative Tribunal - Ernakulam
Anjumol P R vs D/O Post on 12 January, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00618/2020
Wednesday, this the 12th day of January 2022
CO RAM:
HON'BLE Mr.P.MADHAVAN, JUDICIAL MEMBER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
Anjumol.P.R.,
W/o.Amal.T.K.,
Aged 33 years,
Multi Tasking Staff,
Puthencruz P.O., Ernakulam Division.
Residing at Tharappattu House,
Puthencruz P.O., Puttumanoor, Ernakulam - 682 308. ...Applicant
(By Advocate Mrs.Rekha Vasudevan)
versus
1. Union of India,
represented by Secretary to Government of India,
Ministry of Communications, Department of Posts,
North Block, New Delhi - 110 001.
2. The Chief Postmaster General,
Kerala Circle, Thiruvananthapuram, Kerala - 695 001.
3. The Assistant Postmaster General (Staff),
Office of the Chief Postmaster General,
Kerala Circle, Thiruvananthapuram, Kerala - 695 001.
4. The Postmaster General,
Central Region, Gandhi Nagar,
Elamkulam, Kochi - 682 020.
5. The Senior Superintendent of Post Offices,
Ernakulam Postal Division,
Head Post Office, Kochi - 682 011.
6. The Postmaster,
Tripunithura M D G,
Tripunithura, Kochi - 682 301.
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7. The Secretary to Government of India,
Department of Personnel and Training,
M/o.Personnel, Public Grievances and Training,
Government of India, North Block,
New Delhi - 110 001. ...Respondents
(By Advocate Mrs.O.M.Shalina, SCGSC)
This application having been heard on 23 rd December 2021, the
Tribunal on 12th January 2022 delivered the following :
ORDER
Per : Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER After it was filed this O.A was initially taken up by the Tribunal on 17.12.2020 for consideration of an interim prayer to allow the applicant to write the Limited Departmental Competitive Examination (LDCE) for promotion to the cadre of Postal Assistant/Sorting Assistant against the departmental quota for the year 2020. The Tribunal did not allow the interim prayer after hearing to permit the applicant to write the LDCE. However, the applicant then approached the Hon'ble High Court of Kerala. She was permitted to participate in the said examination vide the orders dated 18.12.2020 of the Hon'ble High Court of Kerala in O.P.(CAT) No.221/2020. An M.A.No.180/283/2021 was then filed by the applicant for amending the O.A and the same was allowed on 15.06.2021. A sealed cover containing the result of the applicant after her appearance in the said LDCE was also produced on the same day and the result was recorded.
2. The reliefs now sought for by the applicant after filing the amended O.A are as follows :
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(a) Declare that the applicant is fully entitled to reckon her service from 01.01.2015 onwards towards the qualifying service for appointment to the post of Postal Assistant.
(ia) To set aside Annexure A-5 order issued by the 5 th respondent.
(b) Direct the respondents to reckon the service of the applicant with effect from 01.01.2015 onwards towards the qualifying service for appointment to the post of Postal Assistant and to permit her to participate in the Limited Departmental Competitive Examination scheduled to be conducted in pursuance of the Annexure A-3 notification.
(c) To grant such other reliefs as may be prayed for and the court may deem fit to grant, and
(d) Grant the cost of this Original Application.
3. The facts of the case as well as reasons for allowing amendment of the O.A are as follows : The applicant had started her career with the respondents as a Gramin Dak Sevak (GDS) with effect from November 2013. In the year 2014, the 3 rd respondent, the Assistant Postmaster General (APMG) (Staff), Office of the Chief Postmaster General, Kerala, notified a LDCE to be conducted on 26.10.2014 for appointment to the post of Multi Tasking Staff (MTS). The applicant submitted her candidature for the same and as she was successful in the LDCE, she was appointed as a MTS under the respondents. She had filed the O.A as she was aggrieved by the non consideration of her regular service from what she has contended should have been taken as the date of her appointment to the post of MTS, for purposes of consideration for appointment to the post of Postal Assistant. She submits that the 3 rd respondent, APMG (Staff), had issued a notification dated 09.11.2020, notifying the LDCE for appointment to the post of Postal -4- Assistant, copy of which has been produced at Annexure A-3. In this notification it was indicated at the point 3(iii) under the eligibility criteria that MTS in the Pay Band-I of Rs.5200-20200 plus Grade Pay of Rs.1800/- (pre-revised) of the concerned Unit/Division, with five years regular service in the Grade, including any regular service put in the erstwhile Group D post on regular basis would be eligible. She had submitted her application pursuant to this notification. It was also indicated in the notification that there were 15 vacancies in the Ernakulam Postal Division, consisting of SC - 4, ST - 2 and UR - 9. However, the candidates except her had been issued with hall tickets for the LDCE which was scheduled to be conducted on 20.12.2020. The applicant was not issued the hall ticket till the date of filing the O.A. Subsequent to the filing of the O.A the applicant was given a letter dated 15.12.2020, issued by the 5 th respondent (Annexure A-5), in which she was informed that her application for the above mentioned examination to be held on 20.12.2020 could not be considered as her service period was not eligible for the vacancy year. She then amended the O.A after approval to set aside this Annexure A-5 order. It is further submitted that when this Tribunal had declined the interim relief sought by her to participate in the LDCE to be held on 20.12.2020, she approached the Hon'ble High Court of Kerala in O.P.(CAT) No.221/2020. The Hon'ble High Court disposed of the said OP with the following directions :
"4. Since this original petition is filed challenging an order refusing interim relief and since the original application is pending before the Tribunal, we do not intend to adjudicate the matter on merits. We are of the opinion that in the facts and circumstances of the case, the petitioner/applicant is -5- entitled to an interim order, permitting her to provisionally write the examination which is to be held on 20.12.2020. No prejudice whatsoever will be caused to the Department of Posts if such interim relief is granted. Accordingly, there will be a direction to the 5th respondent to permit the petitioner/applicant to take part in the examination for selection to the post of Postal Assistant scheduled on 20.12.2020. Participation of the petitioner/applicant shall be purely provisional and subject to the final orders to be passed by the Tribunal. We make it clear that we have not expressed any opinion on the merits of the claim put forth by the petitioner/applicant. The original petition is disposed of with the above direction.
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4. The applicant submits that the results of the above LDCE for the post of Postal Assistant was published on 19.05.2021, copy of which is produced at Annexure A-7. A perusal of the result at Annexure-I of this letter would show that for the Ernakulam Division at Sl.No.1 it has been indicated as "result withheld for one UR vacancy". After that eight names against the category of UR have been indicated at Serial No.2 to Serial No.9. Since the number of UR vacancies were total of nine, the applicant submits that the withheld result at the Sl.No.1 would be hers, as she was the only UR candidate who was allowed to participate provisionally in the examination. Thus a fair conclusion is that she had secured Rank No.1 with the highest score as the ranking has been given on the basis of the marks scored. Further, pursuant to Annexure A-7, the 5 th respondent has already issued orders granting posting to all the other candidates included therein.-6-
5. The crux of the argument initially made by the applicant was that it was delay by the respondents which had affected her adversely for the counting of the required five years service. For establishing this she points out that after the LDCE for appointment to MTS was conducted on 26.10.2014, in all the Divisions of the Kerala Circle, the actual results in other Divisions were published in November and December, 2014 itself.
Further, the postings in these Divisions were also issued by the end of November and December, 2014. However, in her case in Ernakulam Division though she was appointed as MTS as per Letter No.ST/80-5/2014 dated 01.01.2015 issued by the 4 th respondent (PMG Central Region, Kochi), the 5th respondent, Senior Superintendent of Post Offices, Ernakulam Postal Division, Kochi vide an order (produced at Annexure A-1) allotted her to the Sub division of Tripunithura S.O Unit on 02.01.2015. In addition, the 6th respondent, the Postmaster, Tripunithura MDG, Kochi, issued the appointment order posting her at Tripunithura MDG only on 15.01.2015. A copy of the appointment order is produced at Annexure A-2. Her contention is that her entry in service should be reckoned from the date of appointment ie., with effect from 01.01.2015;
which, when taken into account in her case, would make her eligible to submit her candidature for appointment to the post of Postal Assistant. It is accepted by her that she will be entitled to service benefits only after her appointment to the post of MTS in the light of the judgment of the Hon'ble Apex Court in Najithamol & Ors. vs. Soumya SD in C.A.No.90/2015 dated 12.08.2016. She submits that the 3 rd respondent, (APMG [Staff]), -7- ought to have considered the fact that her appointment was as a MTS on 01.01.2015 and that, therefore, she fully satisfied the eligibility criteria of five years service of MTS as on 01.01.2020. She submits that her posting was delayed solely for the reasons attributable to the 5 th and 6th respondents (Senior Superintendent of Post Offices, Ernakulam and Postmaster, Tripunithura MDG) as a result of which, she is set to lose one year of service. Had her posting been done on 01.01.2015 itself, she would have qualified in terms of eligible service in the normal course to be considered for appointment to the post of Postal Assistant. The delay of 15 days in issuing posting orders due to the lethargy on the part of the respondents has meant that she, though qualified for the appointment to the post of MTS prior to 01.01.2015, was being denied opportunity to compete for the post of Postal Assistant. Since this delay is solely attributable to the Department, she is fully entitled to get her appointment from 01.01.2015 reckoned towards qualifying service for appointment to the post of Postal Assistant.
6. To further support the above argument of delay, the applicant has produced additional information procured through an RTI application, to establish that the appointments were delayed, particularly in Ernakulam Division of the Postal Department. She submits that the LDCE for appointment to MTS was conducted on 26.10.2014 in all Divisions of Kerala Circle. However, the results of other Divisions were published in November and December 2014 itself. At Annexure A-9 she has produced the information relating to Irinjalakuda Division, where she submits the -8- results were announced on 27.11.2014 and posting orders were issued on 08.12.2014. Similarly, in Aluva Division the results were published on 24.11.2014 and postings were done on 10.12.2014 and 12.12.2014, vide Annexure A-10. In Kottayam Division the results were published on 26.11.2014 and postings were done on 28.11.2014, vide Annexure A-11. It is thus submitted that her claim for eligible service is being rejected without considering the fact that the delay in publishing results and granting posting orders in Ernakulam Division had paved the way for the loss of service for her. Candidates in other Divisions who had participated in the LDCE for appointment to the post of MTS conducted on 27.10.2014 were granted posting in December 2014 itself; whereas the same process was delayed in Ernakulam Division. Therefore, inspite of being the top scorer in the LDCE for Postal Assistant, she has lost her chance for getting an appointment as Postal Assistant along with the MTS of other Divisions who had participated in the same LDCE conducted on 26.10.2014. The reasons for this are fully attributable to an unexplained delay by the respondents. Hence, she has sought the reliefs as prayed for above.
7. In their first reply statement to the O.A dated 12.07.2021, the respondents submitted that the applicant had joined the Postal Department as a GDS MD II, Varikoli Branch Post Office with effect from 22.11.2013. A LDCE for filling up the posts of MTS for the year 2014 was conducted on 26.10.2014. As per the notification for this examination, a GDS official who was in service as on 01.01.2014 was eligible to take part. The date of -9- entry into GDS service of the applicant being 22.11.2013, she was permitted to appear in the LDCE. She qualified after the LDCE for the post of MTS and was selected under the UR category, along with two others, in the Departmental Screening Committee held on 14.11.2014. The 4 th respondent, (PMG, Central Region) through letter dated 01.01.2015 approved filling up of the vacancies of the MTS for the year 2014. After this, vide the Annexure A-1 Memo dated 02.01.2015 issued by the 5 th respondent, the applicant was attached to Tripunithura Sub Post Office. She was then appointed to the post of MTS vide Annexure A-2 Memo No.PF/APR dated 15.01.2015 issued by the Postmaster, Tripunithura MDG. The applicant then joined the post of MTS, Tripunithura SO on the forenoon of 15.01.2015. The respondents have produced a true copy of the charge report signed by the applicant on 15.01.2015, at Annexure R-2.
8. It is submitted by the respondents that vide Annexure A-3 notification dated 09.11.2020 the CPMG, Kerala Circle had issued a notification for a LDCE for promotion to the cadre of Postal Assistant/Sorting Assistant from Postman/Mail Guard/Despatch Rider and MTS for the vacancies for the year 2020. An eligibility condition prescribed for appearing in the above mentioned LDCE for MTS officials, as per the Department of Posts (Postal and Sorting Assistant Gr.C Non Gazetted) Recruitment Rules 2015 published on 21.05.2015, was five years of service in the Grade including any regular service put in the erstwhile Group D posts on a regular basis. The crucial date for reckoning the minimum regular service was 01.01.2020. -10- A copy of the said Recruitment Rules has been produced at Annexure R-3. It is submitted by the respondents that since the applicant had only attained a regular service of 4 years 11 months and 17 days in the MTS cadre as on 01.01.2020, she was not eligible to appear in the aforesaid examination. Hence her candidature was rejected vide the impugned order produced at Annexure A-5.
9. The respondents have relied on Hon'ble Apex Court rulings to establish that what they have done is as per the law laid down by the Apex Court. They submit that it is trite law that date of occurrence of vacancy is not relevant for the purpose of promotion. The Apex Court in Nirmal Chandra Sinha vs. Union of India & Ors., (2009) 1 SCC 29, has held that "it is settled law that promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or creation of posts. An employee does not have an indefeasible right to promotion. His right is for consideration of promotion only." The respondents submit that the applicant, who is a direct recruit, cannot claim to antedate her appointment; her service can only be counted from the date of her joining the service and thus she is not eligible to apply pursuant to the Annexure A- 3 notification. It is submitted by the respondents that the appointment of the applicant to the post of MTS is a direct recruitment and not a promotion, as declared by the Apex Court in Najithamol (supra). Again, in A.Janardhanan vs. Union of India, (1983) 2 SCR 936, it was held that a later direct recruit cannot claim seniority from a date before he joined -11- service. As such, the applicant who is a direct recruit cannot claim for antedating her appointment. She is not eligible to apply for the post pursuant to the Annexure A-3 notification.
10. The respondents also submit that the delay which occurred in offering a posting order to the applicant from the date of issue of an appointment letter is not a wilful act on their part. It was purely due to administrative reasons/contingencies and, as such, the claim of the applicant that delay was solely attributable to the respondents and hence she is entitled to be considered for appointment to the post of Postal Assistant from the date of offer of appointment cannot be accepted. It is pointed out that the Hon'ble High Court of Kerala while allowing her to participate provisionally in the LDCE has not expressed any opinion on the merits of the claim put forth by the applicant in its orders in O.P.(CAT) No.221/2020. She was allowed to participate in the examination provisionally, subject to the result of this O.A. Her results have not been published as the O.A was still pending and were produced before this Tribunal as per its order dated 03.06.2021 in a sealed cover. However, whether she had passed the examination or not, is not relevant to the facts of the case. What is pertinent only is whether she is eligible for appearing in the examination. Her contention that her appointment to the post of MTS was delayed by the respondents is against the facts and has no relevance. It is also submitted that if there was any delay the same ought to have been challenged at that point of time. Being a direct recruit she cannot claim for antedating her appointment and is thus -12- not eligible to apply in pursuance to the Annexure A-3 notification. Even in her own application, produced at Annexure A-4, she has written her date of entry into department as 15.01.2015. It is submitted that there was no objection raised by the applicant at any point of time regarding her actual date of joining in the service. She has claimed service now from 01.01.2015 only after rejection of her candidature. It is submitted that there is no merit in the contentions raised by the applicant as her service begins only when she actually joins the post after being offering employment.
11. In the rejoinder filed by the applicant, she has again reiterated that the LDCE for appointment to the post of MTS was concluded on 26.10.2014 in all Divisions of Kerala Circle. However, as mentioned by the respondents, the Departmental Screening Committee was held on 14.11.2014 and the applicant was selected under UR category in the said meeting. As is evidenced from the Annexures A-10 and A-11, pursuant to the Screening Committee Meeting, postings were carried out in the month of November and December 2014 itself in the neighbouring Divisions; however, in Ernakulam Division, the approval for filling up of the vacancies was granted only on 01.01.2015. The further action taken pursuant to the meeting of the Departmental Screening Committee has not been clearly explained in the reply statement. As a result of this delay on the part of the respondents in the issuance of appointment orders the applicant lost one year of her career. The repercussions would continue throughout her career as further promotions would be delayed by one year in her case as compared -13- to her counterparts who were appointed as MTS, pursuant to the LDCE held on 26.10.2014. The respondents should therefore compensate her for the same as the lethargy shown on the part of respondents in not taking prompt action for issuance of appointment orders pursuant to the meeting of the Departmental Screening Committee has been at her cost for further promotions. It is submitted that all her other counterparts in other Divisions who had got appointed as MTS pursuant to the LDCE of 26.10.2014 were able to participate in the LDCE for promotion to the post of Postal Assistant. This was only for the reason that they had been given appointment orders immediately after the meeting of the Departmental Screening Committee.
12. It is submitted that the applicant had fallen short by only 13 days of service in the MTS category to secure the benchmark of 5 years, solely due to the delay in carrying out appointment in the post of MTS. It is submitted that she is not claiming any appointment with effect from the date of arising of vacancy. Hence the ruling of the Hon'ble Supreme Court in Nirmal Chandra Sinha (supra) is not applicable in her case. Her claim is only to reckon her service in the post of MTS with effect from 01.01.2015 - the date on which the 4th respondent had approved the list of candidates for appointment to the post of MTS. It is submitted that the respondents have admitted to the fact that there was a delay in offering posting due to administrative contingencies. This delay has led to the shortage in the requisite amount of service in the MTS grade for her and has deprived her -14- from the opportunity to take part in the LDCE for promotion as Postal Assistant. Apart from a bald excuse of administrative contingencies, no reasons have been given in the reply statement to explain the time taken to issue the appointment orders, after the finalization of the list by Departmental Screening Committee. Further, the contention that if at all there was any delay, the same ought to have been challenged at the relevant point of time is not acceptable as the cause of action has arisen only now when she was denied the participation in the LDCE for promotion to the post of Postal Assistant. Thus, the present O.A has been filed well in time, since the cause of action has arisen only at present, in the context of denial of the requisite qualifying amount of service for her further promotion.
13. In addition to the above, the applicant submitted a fresh contention for consideration in the rejoinder. She submitted that at the time of her appointment as MTS, the eligibility criteria for length of service was reckoned to be measured as on 1st of April of the year in which the selection took place. However, this eligibility criteria was later changed to the 1 st of January. Thus, had it retained in the Notification as 1 st of April, 2020, the applicant would have got the requisite 5 years of service, even if the date for counting service was taken from 15.01.2015. Thus the change in the date of eligibility criteria for length of service had deprived her from the opportunity of participation and, hence, she had approached this Tribunal in time. After filing the rejoinder, the applicant filed an M.A.No.180/561/2021 -15- for early posting where she brought out an additional point for consideration. She submitted that the Department of Personnel & Training had issued an O.M., whereby, the eligibility date for length of service for the vacancy year 2021 had been relaxed upto three months. A copy of the O.M F.No.AB-14017/17/2018-Estt-RR dated 12.08.2021 of the DoP&T was produced at Annexure A-12. It is submitted that a reading of the Annexure A-12 would show that the relaxation has been granted taking into account the impact of the change of crucial date for determining eligibility criteria from 1st April to 1st January as per the earlier O.M of the DoP&T dated 08.05.2017 on employees who were becoming eligible only the next year, whereas earlier they would be eligible by 1 st April of the vacancy year. However, this relaxation has been granted only from the vacancy years of 2021 till 2023. There was no mention of the relaxation for the vacancy year 2020.
14. After the release of the aforementioned O.M of the DoP&T the focus of the contentions of the applicant changed to why a similar relaxation could not be allowed for the vacancy year 2020 as well. The O.M produced at Annexure A-12 contained the following provisions in the first four paragraphs :
"Subject - Relaxation in eligibility service - change in the crucial date, ie., 1st January - regarding.
As per instructions contained in DoPT's OM No.22011/4/2013-Estt.(D) dated 8.5.2017, Ministries/Departments, which were mostly following Financial Year (April - March) based vacancy year system till -16- 2017-18 for promotion to various grades, were required to shift to Calendar Year (January to December) based vacancy year from the year 2018 onwards. Consequently, the crucial date for determining eligibility also changed from 1 st April to 1st January.
2. Due to the shift in the vacancy year and consequent change in the crucial date for determining eligibility, employees, who were completing eligibility service as on 1 st April of the vacancy year, were not becoming eligible for consideration for promotion in that vacancy year and that such these employees were becoming eligible for consideration for promotion for vacancies arising only next year w.e.f 1st January, subject to fulfillment of other conditions.
3. Requests have been received for the vacancy year 2019 onwards, requesting for grant of relaxation of eligibility service by upto 3 months as on the crucial date of 1 st January, on the grounds of shifting of vacancy year from financial year-wise to calendar year-wise, to enable employees to be considered for promotion in that year and that this Department has been granting relaxation, on case to case basis, for the Vacancy Years 2019, 2020 and 2021.
4. With a view to enable timely holding of DPCs, where the recruitment has been shifted from financial year-wise to calendar year-wise, in the light of DoPT's OM dated 8.5.2017, it has been decided in consultation with the Union Public Service Commission and approval of the competent authority, to delegate powers to the Administrative Ministries and Departments (Cadre Controlling Authorities) to relax the eligibility service prescribed in the Recruitment Rules/Service Rules (RRs/SRs) for these posts/cadre, as on the crucial date viz. 1st January, 2021, for upto a maximum period of 3 months. Relaxation in eligibility service is to be accorded in such cases where the employees would have been eligible for being considered for promotion as on 1 st April, 2021, but due to change in the crucial date to 1 st January, 2021, they become ineligible for being considered for promotion during 2021. Similar relaxation is permitted for vacancy years 2022 and 2023, as indicated in the table below: ........"-17-
The table allowed maximum relaxation of eligibility service delegated to Administrative Ministry/Department of upto three months for those who have completed eligibility service prescribed in the Recruitment Rules by 31st March of the year for vacancy years 2021, 2022 and 2023 with crucial date of eligibility being January 1st of the respective year.
15. Thus by this O.M the DoPT delegated powers to the Administrative Ministries and Departments (Cadre Controlling Authorities) to relax the eligibility service prescribed in the Recruitment Rules/Service Rules for these posts/cadre as on the crucial date viz., 1 st January, 2021 for upto a maximum period of three months. It has been indicated that relaxation in eligibility service was to be accorded in such cases where the employees would have been eligible for consideration for promotion as on 1 st April, 2021, but due to change in the crucial date to 1 st January, 2021, they became ineligible for consideration for promotion during 2021. Similar relaxation has been permitted for vacancy years 2022 and 2023 as well. The O.M also mentioned that requests were received for the vacancy year 2019 onwards requesting for grant of relaxation of eligibility service by upto three months, as on the crucial date of 1 st January, on the grounds of shifting of vacancy year from financial year wise to calender year wise to enable employees to be considered for promotion in that year. The O.M clarified that the Department had been granting relaxation on case to case basis for the vacancy years 2019, 2020 and 2021. The applicant then submitted a M.A.No.180/715/2021 to implead Secretary to the Government, -18- Department of Personnel & Training, Ministry of Personnel, Public Grievances and Training, Government of India, North Block, New Delhi as additional 7th respondent. The contention made in the M.A was that the DoP&T had been granting similar relaxation on case to case basis for the vacancy years of 2019, 2020 and 2021. It was stated in the M.A that it was understood that the respondents had taken up the issue regarding granting of relaxation in service to the applicant in this matter for the vacancy year of 2020 and that the same was pending consideration with the DoPT. This Tribunal allowed the M.A after hearing on 28.10.2021. Mr.T.C.Krishna, the Sr.PCGC then appearing in this case, took notice on behalf of the DoPT and sought three weeks time for getting a clarification and filing a reply statement. Later the counsel for the respondents was changed to Mrs.O.M.Shalina, SCGSC. Learned counsel for the respondents filed an additional reply statement on 07.12.2021 in which it was clarified that the same had been filed with reference to the applicability of DoPT OM dated 12.08.2021 produced by the applicant at Annexure A-12. It was submitted that the Annexure R-3 Recruitment Rules for the post as well as Annexure A-3 notification dated 09.11.2020 had prescribed the eligibility criteria as MTS in the Pay Band-I of Rs.5200-20200 plus Grade Pay Rs.1800/- of the concerned unit/division with five years regular service in the grade including any regular service put in the erstwhile Group D post on regular post. Further, the Note under para 3 of Annexure A-3 notification stated as follows :
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" The vacancy year has been changed from financial year as provided in the Recruitment Rules to Calendar Year in terms of DoP&T OM No.22011/4/2013-Estt.(D) daed 08.05.2017 and Department of Posts D.O. Letter No.137- 15/2014-SPB-II dated 7th July 2017 and hence the crucial date for reckoning the minimum regular service is 01.01.2020."
16. Learned counsel for the respondents submitted that as per the above referred DoPT O.M dated 08.05.2017 and Department of Posts letter dated 07.07.2017 it had been decided, inter alia, to shift the vacancy year to calendar year from the year 2018 onwards, wherever the financial year based vacancy year was being followed. It was also decided that the crucial date of eligibility will be 1 st of January of the vacancy year with effect from 2019. Subsequently the DoPT issued the O.M dated 12.08.2021 (Annexure A-12) whereby the DoP&T had decided to delegate the powers to the Administrative Ministries and Departments (Cadre Controlling Authorities) to relax the eligibility service prescribed in the Recruitment Rules, as on the crucial date viz. 01.01.2021 for the vacancy year 2021 upto a maximum period of three months. However it may be seen from the para 4 of Annexure A-12 brought out earlier that the power to relax was delegated to the cadre controlling authorities, only for vacancy years 2021, 2022 and 2023. Accordingly, the 1st respondent, Secretary, Department of Posts, had issued instructions to all Chief Postmaster General according approval for relaxation of eligibility service for the vacancy years 2021, 2022 and 2023 as per the letter dated 20.09.2021, produced as Annexure R-4 in the additional reply statement. However, in the instant case, the crucial eligibility date, as per -20- the Annexure A-3 Notification is 01.01.2020 for the vacancy year 2020 and no relaxation was given for the year. The applicant was appointed and assumed charge in the post of MTS on 15.01.2015. As such, she would have completed the prescribed service of 5 years only by 15.01.2020. The power to relax, as provided in Rule 5 of the Annexure R-3 Recruitment Rules for the post is vested with the Central Government. It is submitted that the power to relax any of the provisions of the Recruitment Rules is only with respect to any class or category of persons and not in respect of individual cases. Further, as per the DoP&T O.M at Annexure R-4 the power to relax the period of eligible service has been delegated to the Administrative Ministries/Departments only for the vacancy years 2021, 2022 and 2023. The vacancy year for consideration in respect of the applicant is 2020 (01.01.2020 to 31.12.2020). It is submitted that the 1 st respondent had considered the applicability of Annexure A-12 O.M in the case of the applicant. The 1 st respondent (Secretary Post, Government of India) had informed the 2nd respondent as per communication dated 12.11.2021, that the case was to be dealt with as per extant instructions/guidelines on the subject. Thus, neither the Annexure R-3 Recruitment Rules nor any other rules or provisions enable reckoning of service from a date prior to appointment, for the purpose of determining the prescribed service for appearing in the LDCE. Thus, the applicant is not entitled to the reliefs prayed for.
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17. We have also heard learned counsel for the applicant, Mrs.Rekha Vasudevan and learned counsel for the respondents (initially Mr.T.C.Krishna) and later Mrs.O.M.Shalina, SCGSC. We have also considered the Office Orders/Memorandums along with the statements filed by the applicant and respondents counsel. In effect, we would deem the following two issues are fundamental to a proper consideration of this matter :
(A) Whether the administrative delay in the appointment of the applicant to the post of MTS amounts to a fatal discrimination or a deliberate malafide against her for consideration of her service as MTS and also her subsequent consideration for eligibility for promotion through the LDCE for the next post of Postal Assistant/Sorting Assistant?
(B) Independently of the above, whether the orders passed by the DoPT, produced at Annexure A-12, and the Department of Posts, produced at Annexure R-4, pertaining to vacancy years 2021, 2022 and 2023 allowing relaxation in the eligibility service consequent upon the change in crucial date of eligibility from 1 st April to 1st January, should be extended to the case of the applicant who has claimed the same consideration for the vacancy year 2020?-22-
18. We first take up the issue identified at paragraph 17(A) above for consideration. Regarding the matter of administrative delay in appointment and loss of eligibile service thereby applicant's counsel produced a direction of the Hon'ble Supreme Court in 2008 KHC 5192 - Union of India vs. Smt.Sadhana Khanna. In this matter, the Hon'ble Apex Court looked at the issue of clarity in public appointment. A letter of appointment was offered in that case to the senior respondent on 05.07.1983, ie. after 01.07.1983, a date from which eligibility was to be counted whereas juniors to respondent were issued letters offering appointment prior to 01.07.1983. The Hon'ble Apex Court held as follows :
"11. It may be noted that the respondent was offered appointment vide letter dated 05.07.1983 which is after 01.07.1983 from which the eligibility was to be counted. Hence, it is the Department which is to blame for sending the letter offering appointment after 01.07.1983. In fact, some of the candidates who were juniors to the respondent were issued letters offering appointment prior to 01.07.1983. Hence it was the Department which is to blame for this. Moreover, in view of the Office Memorandum of the Department of Personnel and Training dated 18.03.1988 and 19.07.1989 the respondent was also to be considered, otherwise a very incongruous situation would arise namely that the junior will be considered for promotion but the senior will not."
The finding of the Apex Court is based on the point of juniors being considered for promotion before these seniors which is not the point at consideration in this matter. In the case of the applicant it was established on the basis of Najithamol (supra) that her date of service can only be counted from her actual date of appointment as MTS and her appointment was as a direct recruit to the post. Hence, her date of service can only be -23- counted with effect from 15.01.2015, her date of joining the post after appointment, even if others who might have taken the same examination for the post of GDS on 26.10.2014 might have joined earlier. All who joined as MTS after the said examination as direct recruits. The fact that in some Divisions the process of appointment got over in November and December 2014 itself, whereas in Ernakulam Division it went into January, 2015 has not injured the applicant in any vested right. There is no way that such an appointment can be backdated or antedated to another date. The appointment can be considered only from the date of joining in the post, which in the case of the applicant is 15.01.2015. It appears from the details provided that the Postmaster General, Central Region approved filling up of the vacancies of MTS on 01.01.2015. On the very next day, on 02.01.2015 there was an order issued by the 5 th respondent attaching the applicant to the Tripunithura S.O. Her actual appointment in the post vide Annexure A-2 order was issued on 15.01.2015 and she joined as per the charge report on 15.01.2015 forenoon. Thus, in the context of the facts and circumstances of the case, it is not possible for this Tribunal to re-consider or order her appointment from any date prior to 15.01.2015 and the directions of the Hon'ble Supreme Court in Smt.Sadhana Khanna (supra) are thus perhaps not relevant in the matter at hand.
19. In addition learned counsel for the respondents has also produced orders dated 18.01.2017 of the Kerala High Court in Sumesh.P & Anr. v. Union of India & Ors., (2017) KHC 493, which considered a matter of -24- retrospective seniority claim of employee working in a temporary post who had participated in an examination for appointment as Postman. It was held by the Hon'ble High Court in this matter that seniority is to be counted only from the date of appointment. The Hon'ble High Court in its detailed findings took into consideration views of the Hon'ble Supreme Court relating to the seniority for the purpose of reckoning the prescription of length of service. At para 10 after considering the dictums laid by Hon'ble Apex Court in a number of cases the Hon'ble Court held that 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 born in that service. Thus there cannot be any consideration under any circumstances for antedating the appointment to 1 st of January 2015 or any other date in this matter. The length of service of the applicant can only be considered with effect from the date of joining/appointment ie., 15.01.2015 and thus the eligibility for the consideration of promotion to the post of Postal Assistant can only be from that date.
20. As regards the second issue relating to the extension of the benefit of the change of the date of eligibility from 1 st of April to 1st of January ie., outlined at paragraph 17(B) above, it is to be noted that the date of vacancy being considered on the basis of the financial year has been changed to calender year in the Postal Department from 2018 onwards. Thus, for the vacancies falling in the years 2018, 2019 and 2020 the Postal Department employees have been considered in matters of eligibility/promotion as per -25- the length of service on 1 st January of the particular vacancy year in which they were being considered, and not from 1 st of April. The subsequent orders vide Annexure A-12 of the DoP&T giving the relaxation in eligible service to employees for a period of three months and limiting it for the vacancies of 2021, 2022 and 2023, does not make a retrospective case for the same, to be considered for individual cases in vacancy years, 2018, 2019 or 2020. The DoPT had been only giving relaxation to some Departments who had approached them on a case to case basis but not as a general principle as indicated in the orders/O.M at Annexure A-12. In addition, as pointed out by the learned counsel for the respondents the Department of Posts had issued circular at Annexure R-4 on 20.09.2021 only, extending the benefit of similar orders to postal employees for relaxation of the crucial date of eligibility by three months for the years 2021, 2022 and 2023. In addition, the Annexure R-3 Recruitment Rules issued on 21.05.2015 for promotion to the post of Postal Assistant/Sorting Assistant has at Clause 5 relating to the powers to relaxing the rules. It has been indicated therein that where the Central Government is of the opinion that it is necessary or expedient so to do, it may, by order, and for reasons to be recorded in writing, relax any of the provisions of these rules with respect to any class or category of persons. Learned counsel submits that by this provision any relaxation in the case of the individual employees are, therefore, precluded by the rules and that it can be done only for a class or category of persons. Thus, it is not possible as per the rules to give any relaxation in the case of the applicant. It is submitted that under the said rules, in the face of the -26- DoPT O.M at Annexure A-12, followed by the letter of Department of Posts at Annexure R-4, no relaxation in the case of the applicant for the vacancy year 2020 is possible. We have carefully considered this and we agree that the rules do not allow individual relaxation in cases such as that of the applicant. The steps taken by the DoPT or Department of Posts in giving these relaxations for 2021 and later would not amount to any discrimination or lack of equal treatment to the applicant. On the contrary, if allowed, it would require that similar treatment be given to a whole class of postal department employees for the concerned year 2020 and even for the previous years 2018 and 2019.
21. We have therefore considered the two issues relevant in the O.A and have come to the findings as detailed in paragraphs 19 and 20 above. We are thus not in a position to grant the reliefs sought in the O.A. The O.A is accordingly dismissed. There shall be no order as to costs.
(Dated this the 12th day of January 2022)
K.V.EAPEN P.MADHAVAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp
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List of Annexures in O.A.No.180/00618/2020
1. Annexure A-1 : True copy of the Order No.B-6/11-9/14(Pt) dated 02.01.2015 issued by the 5th respondent.
2. Annexure A-2 : True copy of the Memo No.PF/APR dated 15.01.2015 issued by the 6th respondent.
3. Annexure A-3 : True copy of the Notification No.Rectt/10-3/2020 dated 09.11.2020 issued by the 3rd respondent.
4. Annexure A-4 : True copy of the application dated 18.11.2020 submitted by the applicant in pursuance to the Annexure A-3 notification.
5. Annexure A-5 : True copy of the Letter No.B-6/11-6/2020 dated 15.12.2020 issued by the 5th respondent.
6. Annexure A-6 : True copy of the judgment dated 18.12.2020 in O.P. (CAT) No.221 of 2020 of the Hon'ble High Court.
7. Annexure A-7 : True copy of the Memo No.Rectt/10-3/2020 dated 19.05.2021 issued by the Assistant Director (Estt & Rectt) in the office of the 2nd respondent.
8. Annexure A-8 : True copy of the Memo No.BB-14/2020-21 dated 27.05.2021 issued by the 5th respondent.
9. Annexure A-9 : True copy of the Letter No.RTI/32/2021 dated 30.03.2021 issued by the Superintendent of Post Offices, Irinjalakuda Division along with the attachments thereof.
10. Annexure A-10 : True copy of the Letter No.RTI/164/2020-21 dated 31.03.2021 issued by the Senior Superintendent of Post Offices, Aluva Division along with the attachments.
11. Annexure A-11 : True copy of the Letter No.CPT/RTI/32-2021 dated 07.04.2021 issued by the Senior Superintendent of Post Offices, Kottayam Division along with the attachments.
12. Annexure A-12 : True copy of the Office Memorandum F.No.AB- 14017/17/2018-Estt-RR dated 12.08.2021 issued by DoPT.
13. Annexure R-1 : True copy of the Letter No.Rectt/10-3/2020 dated 01.04.2021 issued by the 2nd respondent.
14. Annexure R-2 : True copy of the charge report dated 15.01.2015.
15. Annexure R-3 : True copy of the Department of Posts (Postal and Sorting Assistant Gr.C Non Gazetted) Recruitment Rules 2015. -28-
16. Annexure R-4 : True copy of the Letter F.No.W-17-16/2021-SPN-I issued by the 1st respondent on 20.09.2021.
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