Central Administrative Tribunal - Ahmedabad
Rajendra L. Rana And Ors. vs Union Of India (Uoi) And Ors. on 29 August, 2002
Equivalent citations: 2003(2)SLJ159(CAT)
JUDGMENT Meera Chhibber, Member (J)
1. This O.A. has been filed by three outsider postmen to challenge the condition in scheme dated 12.1.2001 wherein it is stated that outsider postmen who are not working will not be Covered under the one time measure to appear in the examination for postman.
2. The applicants case in nutshell is that they had worked as outsider postmen for different periods i.e., applicants No, I and 2 from 1982 to 1988 and applicant No. 3 from 1988 to 1997 but were terminated. They challenged their termination but the same was rejected as barred by limitation however they were given liberty to make a representation even the representation was rejected. Applicant No. 1 challenged that order also but that was also rejected. Thereafter some more persons approached the Court against their imminent termination who were granted stay and they continued to be in service ultimately the Tribunal vide its judgment, Annexure A-1, directed the respondents to formulate a scheme to redress the grievance of outsider postmen keeping in view the objections of EDAs and provisions of Rule 5 of recruitment rule. It was also observed that interest of those persons may also be kept in mind who are not continued at present in the absence of stay orders. Pending conclusion, the services of applicant therein were not to be terminated. It is stated by applicant thereafter applicant No. 1 again filed third O.A. No. 807/99 praying therein that he be given the same benefit as would be given to applicants in O.A. 524/89 and other connected matters. This O.A. was disposed off vide order dated 28.4.2000 (Annexure A-2) by observing that the scheme is still under consideration so nothing is known if however any benefit becomes available to the persons who are similarly situated as applicant then the same benefit should be extended to the applicant.
3. Thereafter applicant approached the department but he was informed vide letter dated 2.8.2000 (Annexure A-3) that scheme covers only those outsider postman who are presently working therefore applicant is not eligible. It is submitted by applicant that they have come across the scheme dated 12.1.2001 wherein outside postmen who are working are given one opportunity to appear in examination but excludes those who are not working presently (Annexure A-5). It is this condition of excluding the non-working outsider postman from appearing in the examination which has been challenged by the applicants on the ground that once the Tribunal had directed the respondents to take into account the interests of those persons also who had not got stay, the similarly situated persons could not have been excluded on the ground that they are not working. It is submitted by applicants that the respondents could not have discriminated against the applicants on the ground that they could not get stay. They have further submitted that there is no rationale in denying the opportunity to take the examinations to those who are not in service as this would be violative of Article 14 of the Constitution. Since the scheme was to benefit the outsider postmen, all the outsider postmen should be given the same benefit otherwise the scheme becomes discriminatory. They have thus sought following relief(s) :
(A) The Hon'ble Tribunal be pleased to quash and set aside the condition in the impugned order Annexure-A/5 to the effect that the circular will cover only those outsider postmen who are at present working i.e., outsiders not working will not be covered by the said scheme and be further pleased to extend the benefit of the said circular to the applicants also, (B) This Honourable Tribunal be pleased to grant such other and further relief as may be deemed just and proper.
4. The respondents on the other hand have opposed the O.A. and have stated this is the fourth round of litigation filed by applicant No. 1 therefore, he cannot state that not coming to the Court depends on various factors and simply because he could not come to Court he cannot be discriminated against. In fact the respondents have explained that first time he filed O.A. challenging his termination along with applicant No. 2 but that was dismissed on the ground of limitation however liberty was given to him to represent. They represented. Applicant No. 1 again challenged that order while applicant No. 2 accepted the same as he did not challenge that order. Applicant No. 1's second O.A. was also dismissed, thus his termination has already been upheld by the Court and even though he had requested to be reinstated but that request was also rejected, therefore, the respondents have submitted applicant No. 1 cannot be allowed to file one after another O.A. for same purpose viz; to get reinstated. They have submitted in the batch matter though the Tribunal had directed the respondents to keep in mind the interest of those who could not get the stay but the matter was left open to the respondents and after considering all the pros and cons they took a conscious decision to permit only such of the outsider postmen to take the exam who were in service and which fact was very well informed to the Tribunal by way of draft scheme which was not opposed by Tribunal and after the scheme was formulated the Applicant No. 1 once again filed third O.A. claiming the same benefits which were given to the applicant of batch O. As. decided together but Tribunal again did not give him any positive relief as it was observed by the Tribunal that they do not know what the scheme would be and only stated in case any benefit becomes available to the persons who are similarly situated the applicants should also be extended the same benefit thus they were to get the relief only if there was a provision for those who were not in work as he belonged to that group. They have submitted that since this was only one time measure and in normal course as per recruitment rule the method of recruitment for postman is as under :
"Col. 11--Method of recruitment--
(1) 50% by promotion failing which by ED Agents on the basis of their merit in the Departmental Examination.
(2) 50% by ED Agents of the recruiting Division or unit in the following manner, namely:--
(i) 25% from among ED Agents on the basis of their seniority in service and subject to their passing the Departmental examination, failing which by ED Agents on the basis of merit in the Departmental examination,
(ii) 25% from amongst ED Agents on the basis of their merit in the Departmental examination.
(3) If the vacancies remained unfilled by EDAs of the recruiting Division, such vacancies may be filled by the EDAs of the Postal Division failing in the zone of Regional Directors.
(4) If the vacancies unfilled by EDAs remain unfilled by the EDAs of the recruiting units, such vacancies may be filled by DEAs of the postal Divisions located at the same station, vacancies remaining unfilled will be thrown open to EDAs in the Region.
(5) Any vacancy remaining unfilled may be filled up by direct recruitment through the nominees of the Employment Exchange."
Therefore the right of existing EDAs had also to be kept in mind and all the posts could not have been filled from amongst outsider postman by inviting all those who may have worked 10 years back also as they stand nowhere in the recruitment rule. It was only in relaxation of rules that outsider postman were to be given a chance along with EDAs so a conscious decision was taken balancing the rights of EDAs and those who were still working to give them a clause once to compete with EDAs provided they fulfil the eligibility as per recruitment rule. The Counsel for respondents also submitted that normally whenever such schemes are introduced they are prospective in nature and always a cut off date is mentioned and in none of the schemes the Hon'ble Supreme Court has said that schemes must apply to even those who are not in service. They have further submitted that the applicants herein have no right whatsoever to sit in the examination as the scheme had been introduced much after the applicant's case had been rejected to be reinstated. They have therefore prayed that O.A. may be dismissed.
5. We have heard both the Counsel at admission stage itself as they agreed to argue the matter finally in view of the fact that by way of interim order the Tribunal had directed the respondents to permit the applicants to appear in examination provided they are eligible and keep the results in sealed cover. It was also made clear that this would be without prejudice to the contentions of both sides and appearing in exam will not confer automatic right for appointment.
6. The respondents have kept the entire result in sealed cover even though exam had taken place as back as on 29.4.2001 meaning thereby that the EDAs who were entitled to be promoted under the Recruitment Rule as a matter of right are also being deprived of their promotion. Therefore it was in the interest of justice to decide the matter without delaying it any further.
7. The question that we are required to decide is whether the condition that only those who are working shall be allowed to appear in exam for postman can be said to be arbitrary and violative of Article 14 of the Constitution and whether it needs to be quashed and set aside as claimed by applicants. The Counsel for applicant had relied on AIR 1983 SC//19 IN THE SUPREME COURT OF INDIA 130=1983(1) SLJ 131 (SC), D.S. Nakara's case. We have read the judgment. This was a case where pension formula was liberalised on 25.5.79 but was made applicable to those Government servant who were in service on March 31st, 1979. It was held pensioners form one class and sub class cannot be created in one class to give benefit to some while denying the same to others on the basis of cut off date as it was a beneficial legislation but it would be relevant to mention here the Hon'ble Supreme Court had held since scheme was prospective, the petitioners therein would not be entitled to any arrears but their pensions should be revised as per liberalised pension formula from a prospective date. It was further held in this case though Article 14 forbids class legislation but it does not forbid reasonable classification. The test for reasonable classification is that it should be based on intelligible differentia which distinguishes persons or things that are grouped together from those who are left out of the group and that differentia must have a rational nexus to the object sought to be achieved.
It is in this background that we would have to see whether quashing the non-working outsider postmen can be said to come within reasonable classification or is totally.
8. We have seen the post of postman is governed by recruitment rule which are statutory in nature and the only persons who are eligible to be considered are either Group D regular employees or EDAs either on the basis of their seniority or on the basis of merit in the departmental exam and it is only as a last resort that the vacancies could be thrown open for direct recruitment through employment exchange thus it is clear that under the recruitment rule the outsider postman have no right even of consideration unless last eventuality comes as mentioned in the recruitment rule and it was in relaxation of recruitment rules that the Government decided to give one chance to the extra postman to compete with the EDAs provided they were eligible. The posts were not to be increased meaning thereby that if the outsider postman are allowed to take the exam they would infact be taking away the vested rights of EDAs who derive the same from statutory rules so naturally the department could not have given an open invitation to one and all to appear in the exam as that would have delayed the matter no end apart from raising unnecessary disputes e.g. Take the case where some persons had worked in the year 1985 as extra postman and their services had been dispensed with in 1986 or 1988 as in present case those persons would claim right to appear in the exam but department would not even be in a position to verify the fact whether they had indeed worked or not as such old records may not be available because in Government the records are destroyed after 10 years so naturally it would have resulted in unnecessary litigation and created an anomalous situation and would have delayed the examination as people would say they had worked while respondent would deny it for want of proof. So naturally some via media had to be found by which the interest of atleast those who were entitled under the recruitment rule and those who were in service could be taken care of so if in this background if the department decided to give this one time measure to only those persons who were working on that date, it can not be said that the decision is arbitrary. Moreover even at the time when batch matters were pending, the department had placed the draft scheme before the Tribunal wherein it was mentioned that only such of the persons who are working shall be allowed to appear in exam as a one time measure. The Tribunal only asked the respondents to consider the interests of others also but did not give any positive directions rather left it open to the respondents and now if the respondents have taken a policy decision to allow only those who are working, for appearing in exam we do not think it can be called arbitrary as after all administrative difficulties and practical aspect of the matter is also to be kept in mind. Apart from these things we also have to keep in mind that in D.S. Nakara's case no third party rights were to be affected as all that was to be done was to give the retirees a benefit of liberalised pension scheme that too was made clear that it would be from prospective date whereas in the instant case by this relaxation the rights of another class viz; EDAs is definitely going to be jeopardised so relaxation would not have been given without putting a limit. It had to be restricted to the minimum so the best way was to allow only those who were eligible as per rules and still working as a one time measure to appear in exams for the post of postman and according to us there is logic behind it and it cannot be said to be arbitrary.
9. Now let us examine the other aspect as to whether applicants can claim violation of their rights under Article 14 of the Constitution. As far as applicants No. 1 and 2 are concerned, they challenged their termination and claimed reinstatement but their case was rejected and the scheme came much after their cases were decided. They never challenged the judgment of Tribunal in higher Court meaning thereby they accepted the judgment therefore, if subsequently some other orders are passed or a scheme introduced at a later point of time definitely it cannot give any right to the applicant to claim reinstatement again by a different route as their claim for reinstatement had already been rejected, therefore, according to us, they have no right and if they have no right the question of violation of right just does not arise. The question of violation of right would come only if the individual is able to demonstrate his right first. They also cannot claim that they could not approach the Court as they had indeed approached the Court and failed in their attempt so by no stretch of imagination they can claim to be similarly situated with those who were in service as those persons were neither terminated nor their cases were rejected. Apart from it there is yet one more ground to deny the relief as sought for by applicants. Admittedly the exam has already taken place and since in the scheme it was categorically mentioned those who are not in service would not be allowed to appear in exam there would be many more persons like applicants who might have worked for some time with department but they could not take the exam as it was not permissible. If today we allow these applicants to take the exam and declare their results as well on equity this would amount to discrimination qua those similarly situated persons like applicants who were terminated long back as they would be denied the right to appear in exam as it has been held only as one time measure. In fact the applicants form a class with those outsider postman who had worked for sometime but had been terminated and cannot claim to be similarly situated with those who are now working therefore according to us, the condition laid down by respondents in the given circumstances can neither be said to be arbitrary nor violative of Article 14 of the Constitution.
10. The Counsel for respondents had invited our attention to the scheme of casual labour, where also the same clause is added and it has been upheld by Courts. At this point it would be relevant to refer to the latest judgment of Hon'ble Supreme Court dealing with casual labourer reported in (1998) 5 SCC 111 = 1998(3) SLJ 271 (SC), Union of India and Ors. v. K.G. Radhakrishna Panickar and Ors., and 2002 July Part SCC (L&S) page 517, Union of India and Ors. v. Mohanpal and Ors. where the Hon'ble Supreme Court has categorically decided that the scheme of 1.9.93 issued by DOP&T is a one time programme and is applicable to only those who were in the employment on the date of commencement of scheme. This scheme is for grant of temporary status and regularisation of casual labour.
If the scheme for casual labour has been upheld by the Hon'ble Supreme Court to be one time measure and applicable to only those who were in employment, the present case gets fully covered by this judgment, therefore, in our considered view the applicants are not entitled to get the relief as prayed for. The respondents are given liberty to open the sealed cover of results of those candidates who were covered under the scheme and fill the vacancies. If however even after exhausting the results some vacancies are still available it would be open to the respondents to consider the cases of applicants under last provision of recruitment rules provided there are no other eligible EDAs available. It is made clear if other eligible EDAs are available, the applicants would have no right.
11. The O. A. is accordingly dismissed with above observation with no order as to costs.
O.A. dismissed.