Central Administrative Tribunal - Delhi
Praveen Kumar vs D/O Post on 9 October, 2017
Central Administrative Tribunal
Principal Bench
New Delhi
O.A.No.2280/2016
Order Reserved on: 01.09.2017
Order pronounced on 09.10.2017
Hon'ble Shri V. Ajay Kumar, Member (J)
Hon'ble Ms. Nita Chowdhury, Member (A)
1. Praveen Kumar, Age 21 years, Post Group D
S/o Sh. Tej Narayan
Working as GDS-Mail Deliverer-V
Post Office Sangam Vihar, New Delhi-80.
R/o H-16/1495, Sangam Vihar, New Delhi-110080.
2. Krishan Kumar, age 21 years, Post Group D
S/o Sh. Vinod Kumar
Working as GDS-Mail Deliverer-I
Post Office Sangam Vihar, New Delhi-80.
R/o H.No.24, Gali No.1, Ward No.2
V+PO-Atali
Tehsil-Ballabgarh
Distt. Faridabad, Haryana-121004.
3. Brijraj, Age 20 years, Group D post
S/o Sh. Brij Mohan
Working as GDS-Mail Deliverer-III
Post Office Sangam Vihar, New Delhi-80.
R/o H.No.351
V+PO-Dariyapur Kalan
Delhi - 110 039.
4. Samsher Singh, age 21, post Group D
S/o Sh. Ramesh Kumar
Working as GDS Mail Deliverer
Post Office Malviya Nagar, New Delhi - 17.
R/o Village-Ghose Garh
O.A.No.2280/2016
2
Post-Jamalpur
Distt.-Gurgaon
Haryana-122503.
5. Ajit Kumar, Aged 22 years, Post Group D
S/o Sh. Rajpal
Working as GDS Mail Deliverer-II
Post Office Sangam Vihar, New Delhi-80.
R/o V+PO-Marroli
The.-Hodal, Distt.-Palwal
Haryana-121106.
6. Surender Kumar, age-28 years, Post Group D
S/o Sh. Bal Kishan
Working as GDS Mail Deliverer-V
Post Office-Sangam Vihar, New Delhi-80
R/o V+PO-Rohtak
Tahsil - Meham
Haryana - 124111.
7. Sh. Sachin Bhardwaj, Age 29 years, Post Group D
S/o Mr. Jagdish Bhardwaj
Working as GDS Stamp Vendor
Post Office Andrews Ganj
New Delhi - 110 049.
R/o House No.848/22
Gandhi Nagar
Gurgaon, Haryana.
8. Smt. Poonam Vishwakarma, Age 23 years, Post Group D
W/o Shushil Kumar Vishwakrama
Working as GDS Mail Packer
Post Office Malviya Nagar
New Delhi - 110 017.
R/o House No.C-1/164
Vandana Appartment, Deoli
New Delhi - 110 080.
9. Virender, Aged 19 years, Post Group D
S/o Sri Dalip Singh
O.A.No.2280/2016
3
Working as GDS Stamp Vendor
Post Office New Friends Colony
New Delhi.
R/o V+PO=Digh
Tahsil-Balabhgarh
Dist.-Faridabad, Haryana.
10. Vikas, Age 27 years, Group D post
S/o Sri Raj Kumar Singh
Working as GDS Mail Deliverer
Post Office Sangam Vihar
New Delhi-80
R/o H-B-199, Street No.11, Gulab Vatika
Loni Road, Ghaziabad, UP.
11. Rana Ram Singh, age 25 years, Post Group D
S/o Sh. Surendra Singh
Working as GDS Mail Deliverer
Lal Kuan BO, Badarpur PO
New Delhi -44.
R/o H.No.16/1050
Ratia Marg, Sangam Bihar
Delhi.
12. Alok Kumar Singh, Age 30 years, Post Group D
S/o Sh. Sachchida Nand
Working as GDS Mail Deliverer
Gheora BO, Kanjhawla
New Delhi - 81.
R/o C/o Sh. Ramesh Dutt
Plot No.447, Vill. & Post
Gheora, Delhi - 110 081. ... Applicants
(By Advocate: Shri V.K. Garg, Sr. Counsel with Shri Ajay Kumar
Singh and Ms. Noopur Dubey)
Versus
1. Union of India, through
The Director General of Postal Service
O.A.No.2280/2016
4
Department of Posts (Recruitment Division)
Dak Bhawan, Sansad Marg
New Delhi - 01.
2. Chief Post Master General
Delhi Circle
Meghdoot Bhawan
Jhandewalan, Delhi-01.
3. Senior Superintendent of Post Offices
New Delhi South Division
Nehru Place Post Offices Building
New Delhi - 19.
4. Assistant Superintendent Post
Second Sub Division
New Delhi South Division
Sri Nivash Puri Post Office Building
New Delhi - 110065.
5. Inspector Post
First Sub Division
New Delhi South Division
Malviya Nagar Post Office Building
New Delhi - 110 017.
6. Senior Superintendent of Post Offices
New Delhi North Division
Rohini Post Offices Building
New Delhi - 85.
7. Assistant Superintendent Post
Third Sub Division
Delhi North Division
Rohini Sector VII Post Office Building
New Delhi - 110 085. ... Respondents
(By Advocate: Shri Duli Chand)
O.A.No.2280/2016
5
ORDER
By V. Ajay Kumar, Member (J):
The applicants, 12 in number and working as Grameen Dak Sevak (GDS), Mail Deliverers, Stamp Vendors and Mail Packers, filed the OA questioning their termination orders.
2. This Tribunal, on 15.07.2016, while issuing notices, stayed the operation of the termination orders for a period of two weeks and the same was extended from time to time. As a result, the applicants are being continued in service till date.
3. The brief facts, necessary for the purpose of disposal of the instant OA, are that the applicants, in pursuance of the public notices issued by the respondents for filling up of the posts of Grameen Dak Sevak (GDS), Mail Deliverers, Stamp Vendors and Mail Packers for different post offices, have applied and on selection were appointed in the respective categories, during the period from 2013 to 2016, on various dates mentioned at paragraph 4 (e) of the OA. While they were working as such, the respondents vide the impugned Annexure A1 (Colly.)-Orders, issued notice of termination of service under Rule 8 of GDS (Conduct & Engagement) Rule, 2011 stating that their services shall be terminated with effect from the date of expiry of a period of one month from the date on which the notices are served on or, as the case may be, tendered to them.
O.A.No.2280/20166
4. The applicants questioned the impugned notices of termination, inter-alia, on the following grounds:
i) The impugned notice of terminations, being non-speaking and without assigning any reasons, are liable to be quashed.
ii) The impugned notice of terminations having issued under Rule 8 of GDS (Conduct & Engagement) Rules, 2011, without a prior show cause notice and without providing opportunity to reply to the applicants, is liable to be quashed.
iii) Certain identically placed persons, who were appointed after having selected under the same notifications, are being continued. Hence, the impugned action is discriminatory, arbitrary and violative of Article 14 of the Constitution of India.
iv) Rule 4(3) of GDS (Conduct & Engagement) Rules, 2011 prescribes issuance of notice of show cause in case of exercising powers by the superior authority. Since the impugned action was undertaken at the orders of the superior authority, but without issuing notice of show cause, is liable to be quashed.
v) Reliance was placed on Nazeer Ahmad v. King Emperror, AIR 1934 PC 523; Dilbagh Singh v. CAT Chandigarh, (2008) SLR 14 (P&H); Director, Postal Services, Nagpur v. Sanjay, 2011(2) MHLJ 65; The Manager, Government Branch Press and Another v. D.B.Belliappa, (1979) 1 SCC 477; Mangilal v. State of Madhya Pradesh, (2004) 2 SCC O.A.No.2280/2016 7 447 and Union of India and Others v. Jayakumar Parida, (1996) 1 SCC 441.
5. The respondents vide their counter while denying the OA averments, submit that as per the directions issued from Assistant Director (Staff & Legal), Office of the CPMG, Delhi Circle, issued vide letter dated 27.05.2016, a review of GDS Recruitments other than GDS, BPM, was carried out and in respect of the selection of Applicants No.1, 2, 3, 5, 6 and 10, the following irregularities were noticed:
(i) For the purpose of notification of vacancies to the Employment Exchange, the vacancies have been clubbed and two requests instead of one consolidated request have been made to the Employment Exchange against 6 vacancies. (3 vacancies in each request).
(ii) The requisition for sponsoring candidates was sent to Employment Exchange under two request Ids, request ID NO 2015000094 dated 05.02.2015 and request ID NO 2015000095 dated 05.02.2015 for 3 posts of GDS MD each Annexure RR-4. However, the employment Exchange has sent a list of 326 candidates against request ID NO 2015000095. No list of sponsored candidates against request ID NO 2015000094 is available in file.
(iii) Only 100 candidates of 326 candidates sponsored by the Employment Exchange were addressed and sent O.A.No.2280/2016 8 copies of the notification. This is violation of Para No 20 under the heading "Method of Recruitment (Section-IV)" as prescribed in Swamy's Compilation of Service Rules for GDS corrected up to 2013 (Annexure - RR-5).
(iv) Although the Employment Exchange sent a list of 326 candidates against only one request for 3 posts of GDS MD (request ID NO 2015000095), the recruiting authority sent the notification to only 100 candidates out of 326 for all the 6 posts of GDS MD. Therefore, one list was used for both sets of posts and that too partially i.e. only 100 out of 326 candidates were addressed.
6. It was further submitted that in respect of the selection of the remaining applicants also certain irregularities, as detailed in the counter, were found. Hence, under Rule 4(3) of the aforesaid GDS Rules, 2011, the appointing authorities were directed to terminate the services of the applicants as per Rule 8 of the aforesaid GDS Rules, 2011.
7. The respondents opposed the OA, inter-alia, on the following grounds:
i) The applicants are not full time Government employees and hence, this Tribunal has no jurisdiction to entertain the OA and accordingly the same is liable to be dismissed. O.A.No.2280/2016 9
ii) The applicants have not disputed the irregularities occurred in their selection and, hence, they are not entitled for the reliefs claimed.
iii) As the impugned notice of termination orders were issued under Rule 8 of the aforesaid GDS Rules, 2011, by the appointing authority, no prior show cause notice is required to be issued before issuing the impugned termination order.
iv) As Rule 8 of the aforesaid Rules does not provide for assigning any reasons, the impugned orders are legal and valid.
v) The facts in Jayakumar Parida (supra) are different and not applicable to applicant's case.
8. Heard Shri V.K.Garg, the learned senior counsel with Shri Ajay Kumar Singh and Ms. Noopur Dubey, the learned counsel for the applicants and Shri Duli Chand, the learned counsel for the respondents, and perused the pleadings on record.
9. In Superintendent of Post Offices, etc. v. P.K.Rajamma, (1997) AIR 1677; it was held that the post of Extra Departmental Branch Post Masters/Sub-Postmasters/Delivery Agents, a civil post, within the meaning of Article 311(2) of the Constitution of India and Posts and Telegraphs, Extra Departmental Agents (Conduct & Service) Rules, 1964 and that though these posts are outside the regular civil service, however, there is no doubt that they are the posts under the O.A.No.2280/2016 10 State and the relations between the Postal Authorities and the Extra Departmental Agents are of `master' and `servant'.
10. In Dilbagh Singh (supra), when the services of the petitioner therein, who was a Gramin Dak Sevak Branch Post Master, was sought to be terminated, with effect from the date of expiry of period of one month from the date on which notice was served, without assigning any reason, the Hon'ble Punjab and Haryana High Court, after going into the merits of the case, i.e., the comparative lower merit of the petitioner, held that the stand of the respondents that the petitioner therein, had been selected ignoring the merit of other candidates is not a valid one and cannot be sustained in the eyes of law, as there was no complaint against the petitioner and that no candidate ever challenged his selection either before the Department or before the Court, and accordingly, set aside the identical notice issued without assigning any reasons.
11. In Jaya Kumar Parida (supra), when the service of an Extra Departmental Branch Post Master was terminated on the basis of the report that he had produced a false income certificate to procure appointment, the Hon'ble Apex Court set aside the termination order on the ground of being a non-speaking one and being passed without affording opportunity. It was observed therein that if any material adverse to the employee formed O.A.No.2280/2016 11 a foundation for termination, principles of natural justice may necessarily require that prior opportunity of notice be given and after considering his reply appropriate order may be passed giving reasons in support thereof, and if it is only a motive for taking action, in terms of Rule 6, since that Rule provides that such a termination could be made within three years, without any notice, there would be no obligation on the part of the Department to issue any notice and to give opportunities before termination and each case requires to be examined on its own facts.
12. Rules 4 & 8 of the GDS (Conduct & Engagement) Rules, 2011 read as under:
Rule 4:
"4. Recruiting Authority (1) The Recruiting Authority in respect of each category of Sevak shall be as shown in the Schedule annexed to these rules (2) lf any doubt arises as to who is the appropriate Authority ln any case, the matter shall be referred to the Government, whose decision thereon shall be final.
(3) Notwithstanding anything contained in these rules, any authority superior to the Recruiting Authority as shown in the Scheduie, may, at any time, either on its own motion or otherwise call for the records relating to the engagement of Gramin Dak Sevaks made by the Recruiting Authority, and if such Recruiting Authority appears-
(a) to have exercised a jurisdiction not vested in it by any law or rules time being in force: or
(b) to have failed to exercise a jurisdiction so vested; or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, such superior authority may, after giving an opportunity of being heard, make such order as it thinks fit."O.A.No.2280/2016 12
Rule 8:
"8. Termination of Engagement (1) The engagement of a Sewak who has not already rendered more than three years' continuous service from the date of his engagement shall be liable to be terminated at any time by a notice in writing given either by the Sevak to the Recruiting Authority or by the Recruiting Authority to the Sevak;
(2) The period of such notice shall be one month:
Provided that the service of any such Sevak may be terminated forthwith and on such termination, the Sevak shall be entitled to claim a sum equivalent to the amount of Basic Time Related Continuity Allowance plus Dearness Allowance as admissible for the period of the notice at the same rates at which he was drawing them immediately before the termination of his service, or, as the case may be, for the period by which such notice falls shot of one month.
NOTE.- Where the intended effect of such termination has to be immediate, it should be mentioned that one month's Time Related Continuity Allowance plus Dearness Allowance as admissible is being remitted to the Sewak in lieu of notice of one month through money order."
13. The Hon'ble Apex Court in Y. Najithamol and Others v. Soumya S. D. and others, (2016) 9 SCC 352, while referring P. K. Rajamma (supra), affirmed that the posts of Extra Departmental Staff of the Postal Department though not a full time government posts but are civil posts. Once it is held that the same is a civil post, in terms of Section 14 of the Administrative Tribunals Act, 1985, this Tribunal is having jurisdiction to entertain the OA. Hence, the contention of the respondents that this Tribunal has no jurisdiction to entertain this OA, is unsustainable.
14. Though the respondents issued the impugned notices of termination without assigning any reasons but through their counter stated that in view of the irregularities occurred in the process of selection of applicants, they are right in invoking the power under Rule 8 of the 2011 Rules. Hence, as held in Jayakumar Parida (supra), O.A.No.2280/2016 13 since the report of irregularities forms foundation for termination of the applicants, impugned orders issued without adhering to the principles of natural justice deserves to be interfered with. The contention of the respondents' counsel that Jayakumar Parida (supra) has no application to the applicants, cannot be accepted in view of the similarity in facts and law.
15. Since it is found that the applicants are entitled for an opportunity before terminating their services, the other issues are kept open.
16. In the circumstances and for the aforesaid reasons, the OA is allowed and the impugned orders are quashed. The respondents may issue proper show cause notices to the applicants indicating reasons and after considering the representations of the applicants made thereto, may pass appropriate fresh speaking and reasoned orders, in accordance with law. No costs.
(Nita Chowdhury) (V. Ajay Kumar) Member (A) Member (J) /nsnrvak/