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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 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 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 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 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.

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 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.