Central Administrative Tribunal - Ernakulam
M.Podiyamma vs The Supdt. Of Post Offices on 30 March, 2012
1
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. NO. 692 OF 2011
Friday , this the 30th day of March, 2012
CORAM:
HON'BLE Mrs.K.NOORJEHAN, ADMINISTRATIVE MEMBER
M.Podiyamma, Aged 59 years
W/o. K.O Thamp,
Working as Group D Punalur Head Post Office
Residing at Thekkekkara Puthenveedu
Channapetta P.O
Pin - 691 311 - Applicant
(By Advocate - Mr.P.C Sebastian)
Versus
1. The Supdt. Of Post Offices
Pathanamthitta Division
Pathanamthitta - 689 645
2. The Chief Postmaster General,
Kerala Circle
Thiruvananthapuram - 693 033
3. The Union of India
Represented by Secretary to Govt. of India
Ministry of Communications
Department of Posts
New Delhi - 110 001 - Respondents
(By Advocate Mr.Sunil Jacob Jose, SCGSC)
The application having been heard on 27.03.2012, the Tribunal on
30.03.2012 delivered the following:
O R D E R
1. The applicant is aggrieved by the denial of pensionary benefits by the respondents on the plea that she has not completed the minimum qualifying service of 10 years. The applicant has joined the respondent's department as a 2 Gramin Dak Sevak Mail Packer on 01.03.1978 in Pathanamthitta Postal Division. According to the applicant she is one of the senior most GDSs in the Division and she is placed at serial No.125 in the seniority list dated 01.01.1996 of GDS (Annexure A-2). The applicant avers that in Kerala Circle Group D vacancies were not filled up since 1997 and the respondents did it finally only at the intervention of this Tribunal. Accordingly, she was appointed on 16.07.2010 as Group D in Punalur Head Post Office with the benefit of notional service from 12.04.2004. Since the applicant was under the firm belief that she would have been regularised against a vacancy earlier to 2004. So she sought necessary information under RTI Act . She produced a copy of the same at Annexure A-3. According to Annexure A-3(a) her senior V.G Gopinathan Nair GDS MD Cherukulanji was appointed in 2004 against the vacancy of 2002. It was also informed vide Annexure A-4 under information received through RTI Act that a few vacancies from 1999 to 2003 were abolished. According to the applicant, there were 19 Group D vacancies from 1998 to 2002, out of which only 10 were filled up. Hence, her promotion can be antedated to one of these vacancies which existed between 1998 and 2002. She produced order of this Tribunal at Annexure A-5 to show that a similarly placed applicant therein the Tribunal ordered the promotion to be antedated from the date of occurrence of the vacancy. This order of this Tribunal was upheld by the Hon'ble High Court of Kerala by judgment dated 08.10.2007 in WPC 29430/07.S (Annexure A-6). Hence, the applicant submitted her representation (Annexure A-7) dated 20.09.2010 to the first respondent requesting for a similar treatment. Even prior to Annexure A-7 she submitted Annexure A-8 representation requesting for her regular promotion from 21.07.1999 since she was working on officiating basis as group D Pathanamthitta Head post office. She produced Annexure A-11 order of 3 this Tribunal in another O.A wherein the respondents were directed to issue orders to antedate the promotion of the applicant therein from 01.06.1999 and grant pensionary benefits. Therefore the applicant avers that she is entitled to the benefits granted to the applicants in O.A 800/02 and O.A 514/10.
2. The respondents controverted the contentions of the applicant and filed reply statement. They submitted that in compliance of the order of the Tribunal in O.A 312/08 and other similar cases an elaborate mechanism was put in place to scrutinize and monitor all related documents, facts and cross tally the number of vacancies from the date of occurrence to identify the available vacancies from 2002-2008. Therefore, 327 posts of Group D were initially identified for the purpose of filling up the same from GDS. Subsequently, as per the specific direction from this Tribunal another 97 vacancies relating to the year 2009 were also added making the total to 424. It is the contention of the respondents that while closing the CPCs this Tribunal has accepted the submission of the respondents that vacancies were available only from 2002-09 for the purpose of granting promotion to GDS. As far as Pathanamthitta Division is concerned, 12 posts of Group D were ear marked and out of which 11 posts were filled up by appointing GDS. The remaining post was meant for filling up from eligible casual labourers. Therefore, the DPC met on 16.07.2010 and considered the case of all eligible candidates who came within the zone of consideration. A copy of the minutes of the DPC proceedings is produced at Annexure R-2, wherein the name of the applicant figures at Serial No.3. According to the respondents, it is crystal clear from R2 that the first vacancy in the Division arose only on 12.04.2004. Consequent on the compulsory retirement of Sri.P.K Prabhakaran, Group D Kozhencherry P.O, a vacancy was 4 offered to Smt.Rohinidevi who is at serial No.1 at Annexure R-2. The second vacancy which arose on 1.5.2004 due to the retirement of Sri.Ramatheerthan Nair, Group D Pazhavangadi was utilised for the appointment of the applicant. Since Smt Rohini Devi declined the appointment in Group D cadre, the notional date of appointment of the applicant was revised as 12.4.2004. The applicant was later promoted as Postman with effect from 11.8.11 and retired from service on 31.8.11.
3. Respondents conceded that in certain divisions the Group D posts for the years 1996 to 1999 were filled up only in the year 2000 and it was due to the litigation which was going on before this Tribunal and the High Court of Kerala. The applicants wanted upper age of 50 years to be relaxed for appointment to Group D post on seniority-cum-fitness basis. The Tribunal allowed the Original Application. However, it was modified by the Hon'ble High Court of Kerala which permitted the respondent department to issue an executive order fixing the upper age as 50 years for promotion. This was done in the year 2000 and all the remaining vacancies from 96 onwards in Group D were filled up in the year 2000. The respondents produced Annexure R-3 to show that from 2000 onwards the respondents were directed to fill up only 25% of the posts which were less than one year old under the direct recruitment quota as the remaining posts had to be abolished. They also produced Annexure R-4 from the Ministry of Finance laying down the stipulation that any posts which remained vacant for more than one year is deemed as abolished. In addition the DOPT instructed all the Central Government department to restrict the recruitment under direct recruitment quota to 1/3 of the vacancies available and further subjected to a ceiling of 1% of the sanctioned strength. Since the sanctioned strength of Group 5 D in Pathanamthitta Division in 2001 was only 42 no vacancy could be projected since 1% of the sanctioned strength did not come to 1. This is borne out from the Annual Direct Recruitment proposal sent to the Postal Directorate vide Annexure R-5. The respondents therefore, claim that no unfilled Group D vacancy existed in Pathanamthitta Division from 1999 to 2001. Hence, the applicant is not entitled for antedating her promotion to 1999 in the absence of any regular vacancy. Moreover, while closing the CPs(C) in O.A 312/08 and other similar cases this Tribunal has accepted that a total of 12 vacancies existed in Pathanamthitta for the period from 2004 to 2009.
4. The respondents have produced Annexure R-6 order of this Tribunal dealing with an identical issue in O.A No.145/10 wherein it was held that "....... it is settled law that the 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 Tribunal had also made it clear that "...... the respondents were bound by the instructions relating to the clearance from the Screening Committee till the High Court in its judgment in WP(C) No.22818/2006 ordered that no clearance from the Screening Committee is required for filling up the posts by promotion in the Group D cadre. Likewise, till the judgment dated 23.12.2009 of the Hon'ble High Court in WP(C) No.33971/2009 and connected cases, the respondents were under the bonafide belief that the office memorandum dated 16.5.2001 on abolition of posts which remained vacant for one year pertains to promotion posts also and not restricted to the post to be filled up by direct recruitment. According to the respondents this observation of the Tribunal in O.A 145/10 would be squarely applicable to this case also. 6
5. Arguments were heard and documents perused.
6. The sole issue which comes up for consideration in this O.A relates to the availability of Group D posts from 1999 to 2003, to antedate the promotion of the applicant. The respondents have taken the pains to explain the factors which led to reduction in the number of Group D posts available for filling up under the direct recruitment quota. They have produced R-4 to show that a ban was in force on creation of new posts right from June 1984 and as part of effecting economy in expenditure, all posts which were not filled up for a period exceeding one year were to be deemed as abolished from 1993. Consequent on implementation of V CPC recommendation, the sanctioned strength of staff was ordered to be reduced by 10% during a period of 5 years. The V CPC recommendation was implemented in 1998 and the exact procedure to effect an annual 2% cut in manpower was drawn up by DOPT in June 2002, but the cut was imposed with retrospective effect from 2000. Since the promotional prospects of existing employees cannot be curtailed, the proposed 2% reduction annually only impacted direct recruitment. Therefore, all Ministries were called upon to send Annual Direct Recruitment (ADR for short) proposal under all categories to the Screening Committee, which had one member from DOPT. Moreover, the direct recruitment was restricted to 1% of the sanctioned establishment under every category. As far as Group D posts in the respondent department are concerned the only method of recruitment is by direct recruitment. Therefore, ADR plan for Group D had to be necessarily submitted to screening committee for its approval. Since the process was initiated by DOPT only in 2002, the vacancies under Direct Recruitment quota was filled up in full till 2002. 75% of vacancies in Group D cadre is to be filled up by GDS but 7 the method of recruitment was by direct recruitment, in service from GDS so that no recruitment need be made from open market. This Tribunal in its common order in O.A 312/08 and similar cases declared, GDS to Group D recruitment to be by promotion, thus eliminating the need to get clearance from screening committee. This in effect meant that all Group D vacancies could be filled up, up to 75% by GDS. The order of the Tribunal was upheld by the Hon'ble High Court in its judgment dated 31.12.2009 in W.P(C) No.33971/2009. Therefore, on institution of contempt petitions by applicants, the respondents identified 327 vacancies in to circle from 2002 to 2008. Later on 97 vacancies of 2009 were added taking the figure to 424. The applicant was a beneficiary of this order. She was appointed against the retirement vacancy of Shri Ramatheerthan Nair Group D which arose on 01.05.2004.
7. Pathanamthitta Division has only 42 posts of Group D. According to the vacancy position furnished by the respondents at Annexure R-1, there was no vacancy in the Division till 2004. This is corroborated by the information obtained by the applicant through RTI Act vide Annexure A-3. 4 vacancies each which arose in 1998 and 1999 were filled up in 2001. One vacancy each of 2000 and 2001 were filled up in 2001 and 2004 respectively. The remaining vacancies are shown at Annexure A-4, to be abolished or deemed as abolished as the posts were kept vacant. Since only 1% of sanctioned posts only could be filled up, every year, and there were only 42 posts of Group D in Pathanamthitta Division, there was no scope of filling up even one post of Group D per year from 2002 onwards. While implementing the order of this Tribunal in December 2008 in the batch case, 12 vacancies from 2002 to 2009 were identified in Pathanamthitta Division. For the 2004 vacancies, Smt.E.P Rohinidevi and 8 Mr.P.V Vijayan were considered. Only on the refusal of Group D promotion by Smt.E.P Rohinidevi, the applicant's senior her promotion was antedated on notional basis to 12.4.2004. By her own admission her senior Gopinathan Nair at serial No.115 was promoted only in 2002, while she figures at serial No.125 in the seniority list. Excepting those at serial No.122 and 123 who were promoted as Postman through departmental competitive examination, her seniors were awaiting Group D promotion on seniority cum fitness basis from 2002.
8. Therefore, I have to accept the contention of the respondents that no regular vacancy in Group D cadre was available till 2004. Since DOPT banned the engagement of full time casual labourer for work of a regular nature the respondents were compelled to engage GDS against short and long term leave vacancies and perhaps regular vacancies of Group D & Postman. They were engaged on extra cost basis and they were not officiating in the said post. For such engagement willingness were called for by the Head Postmaster or the Sub Divisional Head. Those who were residing closer to the concerned post office was engaged there so that there is no need to shift their residence or commute from a long distance. As per general principle only the senior most willing GDS will be permitted to work on extra cost basis against vacancies of Group D and Postman. However, the Divisional seniority was not followed strictly. Hence, the mere fact of working against a vacancy for a long term may not mean that particular GDS was among the senior most GDS in the Division who could have been considered for promotion when the vacancies arose in Group D posts. The applicant was promoted as Postman w.e.f 11.8.2011 and superannuated on 31.8.11. Therefore, she did not have 10 years qualifying service. The Hon'ble High Court of Kerala in OP(CAT) No.3130/2011 held that pension is for actual 9 service and not for notional service (Annexure R-7). This position was settled by the Apex Court in the case of a Gramin Dak Sevak, Dhyan Singh Vs State of Haryana & Others reported in 2003 SCC (L&S) 1020 wherein the Hon'ble Supreme Court held that "a person who is given appointment by Government under a scheme, that employment not being the part of formal cadre of services of that Government, it is difficult to hold that the period for which an employee rendered service under such scheme could be counted for the purpose of pensionary benefits". This view was adopted by the Full Bench of CAT Chandigarh in O.A 1033/PB/2003 where the Tribunal while dismissing the O.A, held that the applicant cannot count any part of his services rendered as EDBPM for combining it with regular service as Group D for computing the qualifying service for pension.
9. In view of the foregoing the applicant has failed to make out a case in her favour. The Original Application lacks merit. Accordingly, it is dismissed. No costs.
(Dated, this the 30th day of March, 2012) (K NOORJEHAN) ADMINISTRATIVE MEMBER sv