Central Administrative Tribunal - Bangalore
Mohammed Rafeeq vs D/O Post on 6 November, 2023
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OA.No.86/2021/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00086/2021
ORDER RESERVED ON:10.10.2023
DATE OF ORDER: 06.11.2023
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
Mohammed Rafeeq,
Aged 43 years,
S/o Ibrahim Sab,
GDS MD,
Bangalore City MDG,
Bangalore-560 002. ....Applicant
(By Advocate Shri A.R. Holla)
Vs.
1. Union of India,
Represented by the Secretary,
Department of Posts,
New Delhi 110001.
2. The Chief Postmaster General,
Karnataka Circle,
Bangalore-560001.
3. The Postmaster General,
South Karnataka Region,
Bangalore - 560001.
4. The Sr. Superintendent of Post Offices,
Bangalore West Division,
Bangalore - 560086.
5. The Sr. Superintendent of Post Offices,
Kolar Division,
Kolar - 563101. ....Respondents
(By Shri S. Sugumaran, Sr. Panel Counsel)
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ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
a) To call for the records from the respondents and issue directions to consider the applicant's case for appointment to the cadre of MTS from the date of his reversion to civil side or from the date his juniors were appointed in MTS cadre, in the interest of justice and equity.
b) To pass such orders as this Tribunal deems fit and expedient in the facts and circumstances of the case.
c) To quash order No.ASP-II/GDS Engmt/Dlgs/2021 dated 01.7.2021 (Annexure R-2) vide which his representation dated 16.12.2019 (Annexure A-11) seeking appointment as MTS had been rejected.
2. The facts of the case as pleaded by the applicant in his pleadings, are as follows:
a) The applicant joined service as GDS MC, Karamangala BO A/w Bangarpet SO under Kolar H.O w.e.f. 26.12.1992.
b) In pursuant to the notification issued by the DG Posts vide OM No 47-
4/96-SPB-I, dated 28.5.1997, (Annexure A-1), the applicant opted to go and work on deputation in the Army Postal Service. Accordingly, he was promoted to the cadre of Group-D on Adhoc basis vide Memo 3 OA.No.86/2021/CAT/Bangalore Bench No.B-2 APS, dated 17.10.1997, issued by the Sr Supdt. of Post Offices. Kolar Division, Kolar-l (Annexure A-2). He was relieved on 17.10.1997 with directions to join APS. He joined APS, care of 56 APO, on 21.10.1997 vide Memo dated 28.10.1997.
c) The applicant had worked at APS in the areas like APS-401 Unit, care of 99 APO, at Dimapur, Nagaland. He had put in about 7 years of service as group-D in APS. While the applicant was working in APS, his mother who was looking after the family affairs in his absence, expired on 07.5.2003, leaving his family uncared for. In view of the pathetic condition of his family, as there were none to look after them, he was left with no alternative but to seek discharge from APS.
d) Accordingly, he submitted his representation in June-2003, seeking discharge from APS. The APS Postal Unit, C/o 56 APO issued discharge order No.A/6-1/APS-1, dated 16.2.2004 and No. 1154/CA- 4/NR, dated 4.3.2004. On reversion to Civil side, the applicant joined at Nellahalla BO in a/w Tekal SO under Kolar Division w.e.f. 17.10.2004. He had served in APS for about 7 years as Group-D drawing pay and allowances admissible to that post. But on reversion to GDS cadre, his salary was reduced considerably resulting in difficulty to meet both ends of the family.
e) The DG Post, New Delhi issued an OM No 47-1/2003/SPB-1, dated 13.6.2007 which prescribed as under:
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i) The services of 847 GDS officials presently on deputation to APS may be regularized from the date of entry in APS/from the date the GDS have been conferred technical promotion as Group-D.
ii) In addition these 847 GDS who have been deputed to APS may be offered an option to return to civil side and accept GDS post.
Those who accepted to revert should be reverted immediately
iii) In cases of GDS who are now promised to be regularized as Group-D are reverted to Civil for some reason or the other, such personnel will rank junior most in seniority in the civil gradation list. The service rendered as Group-D in APS, will for all purposes be counted as a regular service except in claiming seniority in the civil side.
iv) All the consequential benefits including TBOP/BCR accrued from the date of regularization including GPF contribution shall be made in accordance with rules on the subject.
f) The applicant got reversion to civil side in view of his family conditions under unavoidable circumstances or otherwise he would have continued to serve in APS till his retirement. Therefore, the applicant ought to have been allowed to join as group-D on reversion to APS. He was allowed to join as GDS MD/MC, Nellahalli BO, a/w Tekal SO, in Kolar Division in February-2004, on the assurance that his case would he considered for appointment to group-D cadre as and when Group-D vacancy arises. His case was over looked even though 5 OA.No.86/2021/CAT/Bangalore Bench many of his juniors have been appointed to group-D posts against the posts that became vacant in Kolar Division after his reversion to civil side in 2004. Despite his personal approaches to his higher authorities, his case is yet to be considered till date for the reasons best known to them.
g) In view of sister's health condition who is mentally retarded, the applicant got transfer to Bangalore GPO from Kolar Division, so that he could get her treated at NIMHANS Hospital at Bangalore. He was transferred and posted to Bangalore GPO as GDS MD(Speed), as per the CPMG Bangalore Memo No STA/22-12 GDS-Tfr Aug-11/2016 dated 14-9-2016, conveyed vide Chief Postmaster, Bangalore GPO Memo No B-2-3/GDS/Dlgs, 28-9-2016. He joined at Bangalore GPO on 18.10.2016. Thereafter, he was sent on deputation to Bangalore City MDO, Bangalore-2 as GDSs MD(Speed) w.e.f. 1.12.2016 till 10.11.2017. The PMG Bangalore (HQ) Region. Bangalore-1, vide Memo No BGR/ESA/1-56/Dlgs/VIII, dated 23.10.2017, conveyed vide Chief Postmaster, Bangalore GPO, Memo No.B2-3/GDS/Dlgs, dated 13.11.2017, has ordered redeployment of the applicant with 11 others to work as GDS MD(Speed) at Bangalore City, MDG .
h) The applicant has been agitating over the issue to appoint him in group-
D cadre since 2004. Finally he had represented to the SSPOs. Bangalore West Division on l6.12.2019 requesting him to consider his case for appointment/promotion to MTS cadre. The SSPOs vide letter No.B2/3-9/Dlgs/GDS/2019, dated 24-12-2019, has informed the 6 OA.No.86/2021/CAT/Bangalore Bench applicant to submit his representation though the ASPOs, BG West Sub Division-II endorsing copy to the ASPOs concerned. In response to the said letter, the applicant has furnished required service particulars to the ASPOs, BG West Sub Division-II Bangalore-20 on 30.1.2020.
i) The applicant joined service as GDS MD in the year 1992 in Kolar Division. He has put in about 28 years of service including APS service as Group-D. He was neither been continued to work as Group-D after reversion to Civil side nor he was considered for promotion to Group- D on seniority cum fitness basis till date.
j) The applicant sought from the SSPOs, BG West Division the names of GDS officials appointed to MTS cadre under seniority cum fitness quota for the period from 2016 to 2019 under RTI Act on 19.12.2019. The Sr. Superintendent of Post Offices, Bangalore West Division, vide letter No.RTI/BGW DO/132/19-20, dated 14.1.2020, had informed that 12 GDS officials were promoted to MTS cadre under seniority quota reserved for GDS. The copy of the said Memo is enclosed as Annexure A-14. From this it could be seen that the applicant who has been serving as GDS since 1992 has not been considered for promotion to MTS cadre till date. Hence, grave injustice has been meted out to him.
k) The respondents have failed to consider the case of the applicant, in a proper perspective, to appoint him to the cadre of MTS in view of his 28 years of unblemished service including APS service as Group-D, for more than 6 years.
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l) The applicant is entitled for continuation as Group-D on reversion to civil side as he was already been appointed as Group-D before his deputation to Group-D. Hence, non-consideration of the applicant's case in a proper perspective is bad in law.
m) DG Post OM dated 12.8.2007 has ordered to continue the GDS officials who were appointed as Group-D on deputation to APS and continue them as Group-D after reversion to civil side, granting all eligible benefits accrue to them. But the applicant's case has not been considered by the respondents till date, despite repeated requests. Such non-action is violative of the principles of natural justice.
3. The respondents have filed their written statement wherein they have averred as follows:
a) Sri. Mohammed Rafeeq, the applicant was engaged as Extra Departmental Mail Carrier (in short. EDMC) at Karamangala BO a/w Bangarpet SO under Kolar Division w.e.f. 26.12.1992 by Sub Divisional Inspector (Posts). Robertsonpet viz., Sub Appointing Authority, vide Memo no. Appt/EDMC dated 26.12.1992.
b) The applicant voluntarily opted to serve at Army Postal Service (in short, APS) on deputation. The applicant was given technical promotion for one day on 17.10.1997 to the cadre of Group D purely on temporary basis, subject to the condition that the appointment is purely temporary and will not confer any entitlement to Permanent absorption. The applicant was repatriated to his parent Postal Division 8 OA.No.86/2021/CAT/Bangalore Bench on Extreme Compassionate Ground (ECG) at his own request. He got discharged from APS in 2004 vide OCR letter no.1154/CA-4/NR dated
04.03.2004 and joined as Gramin Dak Sevak (in short, GDS) at Nellahalli BO under Tekal SO in Kolar Division.
c) The applicant got transferred to Bengaluru GPO under Rule - 3 of GDS (C&E) Rules. 2001 vide memo of O/o CPM, BG GPO no.B2- 3/GDS/Tfr/Dlgs/16-17 dated 28.09.2016 and joined at Bengaluru GPO on 18.10.2016. As 12 GDS posts of Bengaluru GPO got redeployed to Bengaluru City PO under Bengaluru West Division, the applicant got transferred from Bengaluru GPO to Bengaluru City PO under Bengaluru West Division, vide O/o CPM Memo No.B2-3/GDS/dlgs dated 11.11.2017 and has been working as GDS at Bengaluru City PO till date.
d) The applicant submitted a representation dated 16.12.2019 addressed to CPMG, Karnataka Circle, through proper channel i.e. SSPOs Bengaluru West Division (Respondent No.4). The same was returned to the applicant by Respondent No.4 vide letter No.B2/3- 9/dlgs/GDS/2019 dated 24.12.2019,) informing him to forward the same through Sub Division Head (proper channel). Subsequently, ASP, Bengaluru West Sub Dvn-II disposed the said representation of the applicant dated 16.12.2019, vide letter No.ASP-II/GDS Engm/Dlgs/2021 dated 01.07.2021.
e) The applicant has filed this OA before this Tribunal seeking for redressal of his grievance for appointment to the cadre of MTS from 9 OA.No.86/2021/CAT/Bangalore Bench the date of his reversion to civil side or from the date his juniors were appointed as MTS in the MTS cadre.
f) The submission of the applicant that he should have continued as a Group D on return from APS, is not acceptable, since the applicant was given technical promotion as Group D for one day only for his deputation to APS from Civil side.
g) The applicant had voluntarily opted to go on deputation to APS. He was given technical promotion for one day on 17.10.1997 to the cadre of Group D, purely on temporary basis, subject to the condition that the appointment is purely temporary and will not confer any entitlement to Permanent absorption. SSPOs Kolar Division (Respondent No.5) vide his letter No.B2/APS dated 17.10.1997 deputed him to APS and relieved him to work in APS. He was repatriated from APS at his own request and joined as GDS in 2004.
h) The applicant was repatriated to his parent Postal Division on Extreme Compassionate Ground (ECG) at his own request. On his repatriation from APS, he was engaged as GDS at Nellahalli BO under Tekal SO in Kolar Division and his Time Related Continuity Allowance (in short, TRCA) was paid accordingly.
i) The applicant is referring to the letter of Postal Directorate issued vide No.47-1/2003-SPB-I dated 13.06.2007 wherein it was decided to regularise 847 GDSs (who were on deputation to APS, during 2007) from the date of their entry in APS or from the date the GDSs have 10 OA.No.86/2021/CAT/Bangalore Bench been conferred technical promotion as Group D. The content of this memo is applicable to GDS who were on deputation to APS during 2007, whereas the applicant, was discharged from APS in 2004 itself vide OCR letter no.1154/CA-4/NR dated 04.03.2004 (Annexure A7). The question of applicability of the said letter of Postal Directorate dated 13.06.2007 to the applicant's case doesn't arise.
j) There were clear instructions in the Postal Directorate letter No.47- 4/96-SPB-I dated 28.05.1997 that ... I will not seek repatriation to the Civil before my appointment to Group 'D' cadre on my turn.." and "... in case of reversion to Civil for any unforeseen reasons before my return for appointment for Group 'D' comes, I am ready to be accommodated in a post of EDA, if the present post is not available....".
k) The technical promotion given to the applicant for one day as Group D was purely on temporary basis and does not confirm any title to permanent absorption. Subsequently, on request, he was transferred under Rule-3 of GDS (Conduct and Engagement) Rules, 2001 as GDS MD, Bengaluru GPO against vacant post vide memo No.B2- 3/GDS/Tfr/Dlgs/16-17 dated 28.09.2016.
l) The applicant was transferred from Kolar Division to Bengaluru GPO on his own request on personal grounds. The applicant submitted a representation dated 16.12.2019 (addressed to CPMG, Karnataka Circle) to Respondent No.4 requesting to consider his case for appointment to the cadre of Group D, after considering his 27 years of service in GDS post. In reply, the Respondent No.4 disposed the 11 OA.No.86/2021/CAT/Bangalore Bench representation dated 16.12.2019 with direction to the applicant, vide letter no.B2/3-9/dlgs/GDS/2019 dated 24.12.2019 (Annexure A12), to forward the same through Appointing Authority viz., ASP, Bengaluru West Sub Dvn-II. Further, it is submitted that ASP Bengaluru West Sub Dvn-II disposed the said representation of the applicant dated 16.12.2019, vide letter No.ASP-II/GDS Engmt/Dlgs/2021 dated 01.07.2021.
m) As per the instructions conveyed vide Postal Directorate letter no.D.G.19-10/2004-GDS (Part), dated 21/22.07.2010, under para-3
(ii), it has been mentioned that, "..Past service of Gramin Dak Sevaks will be counted for the eligibility for appearing in the Departmental Examinations and for ex-gratia gratuity and will rank junior in the seniority list of the new unit...". The applicant was, accordingly, placed junior in the seniority list and hence his name did not come under the zone of consideration while considering the cases for Seniority-cum- Fitness quota from GDS to MTS cadre.
n) As the applicant was transferred from Kolar Division to Bengaluru GPO at his own request in 2004 under Rule-3 of GDS (Conduct and Engagement) Rules, 2001 and also got redeployed from Bengaluru GPO to Bengaluru West Division in 2017, his past service will be counted for the eligibility for appearing in the Departmental Examinations and for ex-gratia gratuity and he will rank junior in the seniority list of the new unit. The applicant was placed junior in the seniority list and hence his name did not come under the zone of 12 OA.No.86/2021/CAT/Bangalore Bench consideration while considering the cases for Seniority-cum-Fitness quota from GDS to MTS cadre.
o) The Postal Directorate vide letter No.47-1/2003-SPB-I dated 13.06.2007 (Annexure R1) decided to regularise 847 GDSs (who were on deputation to APS, during 2007) from the date of their entry in APS or from the date the GDSs have been conferred technical promotion as Group D. The content of this memo is applicable to GDS who were on deputation to APS during 2007, whereas the applicant, in the instant case, was discharged from APS in 2004 itself vide OCR letter no.1154/CA-4/NR dated 04.03.2004. The question of applicability of the said letter of Postal Directorate dated 13.06.2007 to the applicant also doesn't arise.
4. Heard learned counsels for the parties and perused the pleadings made by them.
5. In the present case, the applicant has prayed for appointment to the cadre of MTS from the date he had been reverted to civil side from APS i.e., from 04.3.2004 or from the date when his juniors were appointed as MTS cadre.
6. The applicant was originally working as GDS in Kolar Division and he was sent on deputation to work in APS on 17.10.1997. The applicant himself opted to go and work in APS as per the terms and conditions prescribed for deputation to APS. GDSs are promoted for one day on the date of deputation to the cadre of Group 'D' officials purely on temporary/adhoc basis. However, their appointment to APS is subject to the following conditions: 13
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1) The appointment is purely temporary and will not confirm any entitle to Permanent absorption.
2) The appointment is subject to the provision of CCS/Temporary Service Rules-165.
3) He will not seek repatriation to Civil before his term reappointment to Group-D on his turn.
4) In case of reversion to Civil for any unforeseen reasons before the turn for appointment from group-D comes....will be accommodated to any post of EDDA or any other post presently held by him as ED cadre... available and... post of EDA would be available in neighbouring unit. He will wait for appointment .....without claiming regularisation...
5) The officials after promotion to group-D cadre ... civil side will be entitled for the service benefits and also next promotion in civil side.
7. The applicant has apparently accepted these terms and conditions prior to being sent on deputation to APS. Subsequently, due to family circumstances he prayed for premature reversion to civil side. Hence, as per the terms and conditions of his deputation, he was accommodated to the post of GDS in Kolar Division, since his appointed to the post of Group 'D' was only temporary and only for the purpose of sending him on deputation to work in APS. Hence, his prayer for grant of Grade 'D' MTS status on reversion from APS being contrary to terms and condition of deputation to APS, cannot be countenanced.
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8. Subsequent to his appointment as GDS, Kolar Division, he again sought for transfer to Bangalore citing family problems. The applicant was transferred to Bangalore GPO under Rule 3 of GDS (Conduct and Engagement) Rules, 2001 and he joined at Bengaluru GPO on 18.10.2016. He was subsequently redeployed to Bengaluru City PO vide orders dated 11.11.2017.
9. A careful perusal of Rule 3 of GDS (Conduct and Engagement) Rules, 2001, indicates that it has laid down the following conditions regarding transfer facilities to GDS officials from post/ unit to another:
i) A GDS will normally be eligible for only one transfer during the entire career.
ii) Request for such transfer will be considered against the future vacancies of GDS and that too after examining the possibility of recombination of duties of GDS.
iii) TRCA of the new post shall be fixed after assessment of the actual workload of the post measured with respect to the cycle beat in respect of GDS MD/MC/Packer/Mail Messenger in terms of Directorate Letter No. 14-11/97-PAP, dated 1-10-1987.
iv) Past Service of the GDS will be counted for assessing the eligibility for appearing in departmental examination. GDS will not have any claim to go back to the previous recruitment unit/ division. When a GDS is transferred at his own request and the transfer is approved by the competent authority irrespective of the length of service, he/she will rank junior in the seniority list of the new unit to all the 15 OA.No.86/2021/CAT/Bangalore Bench GDS of that unit who exist in the seniority list on the date on which the transfer is ordered. A declaration to the effect that he/she accepts the seniority on transfer in accordance with this should be obtained before a GDS is transferred.
v) Transfer will be at the cost and expenditure of GDS. No expenditure whatsoever on this account will be borne by the Department under any circumstances.
vi) Request for transfer of the GDS will be confined to transfer within the same Circle.
vii) No transfer request will be entertained within 3 years of initial recruitment.
10. A careful perusal of Rule 3(iv) above, clearly states that if the GDS is transferred on his own request, he will rank junior in the seniority list of the new unit to all the GDS of that unit who exist in the seniority list on the date on which the transfer is ordered. A declaration to the effect that he accepts the seniority on transfer in accordance with this should be obtained before a GDS is transferred.
11. In the present case, the applicant was transferred on his own request from Kolar Division to Bangalore division on 28.9.2016. A perusal of the order of transfer clearly indicates that this transfer is at the request of the applicant subject to the following conditions:
"The Conditions stipulated in Para 3 (1) to (V). 16
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i) That he will not opt for any transfer during the entire career.
ii) That he will accept/agree to the TRCA of the new post at this unit.
iii) That he will not have any claim to go back to the previous recruitment unit/division.
iv) That he will not claim any seniority in this unit.
v) That he will not claim any expenditure on this transfer."
12. Apparently, once the applicant had agreed to these conditions, his claim for seniority in the unit where he was transferred to i.e., Bangalore GPO, will only count from the date of his transfer to the new unit i.e. on 28.9.2016. His past service rendered in APS as well as Kolar Division can be counted only for the purpose of his eligibility for appearing in Departmental Examination and for ex-gratia gratuity.
13. The prayer of the applicant, therefore to grant him promotion on the ground that his juniors have been promoted in the Kolar Division, cannot be countenanced, since he has lost his seniority subsequent to his transfer to Bangalore Division. He would be eligible for appointment as Group 'D' only on the basis of his revised seniority in Bangalore Division based upon the date of his transfer to Bangalore under rules.
14. Keeping this in view, the OA filed by the applicant seeking appointment to MTS cadre based on his past service as Group D in APS or by taking his seniority on account of the service rendered by him in Kolar Division, cannot be countenanced.
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15. The present OA, therefore, being devoid of any merit, deserves to be dismissed. Accordingly, the OA is dismissed. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S SUJATHA)
MEMBER (A) MEMBER (J)
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