A. Sivadas v Union of India and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE P.SOMARAJAN FRIDAY, THE 4TH DAY OF NOVEMBER 2016/13TH KARTHIKA, 1938 WP(C).No. 21701 of 2009 (Z) -------------------------------------AGAINST THE FINAL ORDER IN O.A.No.86/2006 DATED 14.3.2008 AND IN R.A. No.36/2008 DATED 6.3.2009 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH PETITIONER :- --------------------- A.SIVADAS, S/o LATE ARU, GRAMIN DAK SEVAK BRANCH POST MASTER, NANNIODE B.P.O., PALGHAT DISTRICT, RESIDING AT, KARTHIKA NIVAS, VEMBARA, NANNIODE P.O., VANDITHAVALAM VIA., PALGHAT DISTRICT. BY ADVS.SRI.S.KANNAN SMT.S.SIMY SMT. SHAMEENA SALAHUDEEN RESPONDENTS : - --------------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF COMMUNICATIONS, (DEPARTMENT OF POSTS), NEW DELHI. 2. THE CHIEF POST MASTER GENERAL, KERALA CIRCLE, TRIVANDRUM. 3. THE POST MASTER GENERAL, NORTHERN REGION, CALICUT-673005. 4. THE SUPERINTENDENT OF POST OFFICES, PALGHAT POSTAL DIVISION, PALGHAT. 5. V.SHYAMALADAS, G.D.S.BRANCH POST MASTER, ATHIKODE P.O., PALGHAT, (NOW WORKING AS POSTMAN, ELAPPULLY, PIN 678622). 6. C.VELUMANI, G.D.S. MAIL DELIVERER/MAIL CARRIER, THANNISSERI P.O., PALGHAT DISTRICT, (NOW WORKING AS POSTMAN, PALAKKAD HEAD POST, OFFICE-678001) - ADDRESS CORRECTED WP(C).No. 21701 of 2009 (Z) AS PER ORDER DATED 9.12.11 IN I.A. No. 19478/11, THE ADDRESS OF THE 6[th] RESPONDENT IS CORRECTED AS, C. VELUMANI, COYALMANNAM SUB POST OFFICE, COYALMANNAM P.O., COYALMANNAM - 678 702, PALAKKAD DISTRICT. 7. M.SASI, G.D.S.MAIL DELIVERER, VATTEKKAD P.O., PALGHAT DISTRICT NOW WORKING AS POSTMAN, MELARKODE P.O., CHITTILANCHERRY, PIN-678703. 8. A.KAVERI, G.D.S.BRANCH POST MASTER, NENMENI P.O., PALGHAT DISTRICT, (NOW WORKING AS POSTMAN, PALAKKAD HEAD POST OFFICE, PIN 678001. 9. THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, REPRESENTED BY ITS REGISTRAR. R1 TO R4 BY ADV. SRI.S.KRISHNAMOORTHY, CGC BY. ADV. SMT.SAMEENA SALAHUDEEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX** ## PETITIONER'S EXHIBITS : EXHIBIT P1 : TRUE COPY OF THE O.A. No. 86/2006 FILED BY THE PETITIONER BEFORE THE C.A.T. ERNAKULAM BENCH. - EXHIBIT P2 : TRUE COPY OF THE REPLY STATEMENT IN O.A. 86/06 FILED ON BEHALF OF RESPONDENTS 1 TO 4 DATED 21.7.2006. - EXHIBIT P3 : TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER TO EXHIBIT P2 REPLY STATEMENT. - EXHIBIT P4 : TRUE COPY OF THE FINAL ORDER DATED 14.3.2008 IN O.A. 86/06 PASSED BY THE HON'BLE TRIBUNAL. - EXHIBIT P5 : TRUE COPY OF THE REVIEW APPLICATION No. 36/2009 IN O.A. No. 86/2006 BEFORE THE 9[th] RESPONDENT. - EXHIBIT P6 : TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS IN R.A. IN O.A. 86/2006. - EXHIBIT P7 : TRUE COPY OF THE REJOINDER DATED 2.11.2008 IN R.A 36/08 IN O.A. 86/06. EXHIBIT P8 : TRUE COPY OF THE ORDER DATED 6.3.2009 IN R.A. No. 36/2008. ## RESPONDENTS' EXHIBITS : EXHIBIT R4(a) : TRUE COPY OF LETTER No.60-62-92 SPB-II DATED 22.12.93 ISSUED BY THE DG POSTS NEW DELHI. EXHIBIT R4(b) : TRUE COPY OF JUDGMENT IN OP No.19088/2001 DATED 5.12.2006 OF THIS HON'BLE COURT. // TRUE COPY // P.A. TO JUDGE DMR/- ## **P.R. RAMACHANDRA MENON** **&** ## **P. SOMARAJAN, JJ.** ---------------------------------------------------- ## **W.P (C) No. 21701 of 2009** ---------------------------------------------------Dated this the 04[th] day of November, 2016 ## **J U D G M E N T** ## P.R. Ramachandra Menon, J. Exhibit P4 order dated 14.03.2008 passed by the Tribunal in O.A. No.86 of 2006 and the subsequent order dated 06.03.2009 (Exhibit P8) in the Review Application No. 36 of 2008 dismissing the same, are under challenge in this writ petition. The grievance is with regard to the rejection of the candidature of the petitioner in the process of selection to the post of Postman/Mail Guard in respect of the vacancies for the year 2003. 2. By virtue of the relevant Recruitment Rules, the vacancies in the post of Postman/Mail Guard are to be filled up 50% by way of promotion from Group-D category and the remaining 50% by direct recruitment. The direct recruitment quota is further subdivided as 25% to be the merit quota and the remaining 25% to be filled up on the basis of seniority of the employees who are serving as Gramin Dak Sevaks in W.P (C) No. 21701 of 2009 2 various capacities. To make it clear, the persons serving as Gramin Dak Sevaks (formerly Extra Department Staff - ED Staff) are not forming part of the main stream and are not departmental employees and as such the selection and appointment to the post of Postman is only by way of direct recruitment; not by promotion, more so, it being the law declared in this regard by the Supreme Court as per the judgment in _**Najithamol Y. and others vs. Soumya S.D & others**_ [2016 (4) KHC 280]. 3. In tune with the relevant Recruitment Rules, the process of selection was notified by the department as per Annexure A1 dated 22.02.2005. The syllabus for the purpose of test was also declared and date of examination was scheduled to be on 03.04.2005, which, however, came to be extended to some other date. As per the eligibility norms, for being considered under 25% seniority quota for the GDS, the maximum age stipulated was 50 years (with appropriate extra relaxation for SC/ST/OBC) as on 01.07.2005. That apart, it was also necessary to have 'five' years of regular service as on 01.01.2005. W.P (C) No. 21701 of 2009 3 4. The petitioner participated in the process of selection in respect of the 'six vacancies' in the unreserved quota among the total seven vacancies as borne out by Annexure A2. On completion of the process, Annexure A4 select list was published by the department on 02.11.2005, where the petitioner could not find a place; whereas the respondents 5 to 8 came to be included therein. This was sought to be challenged by the petitioner by filing O.A. No. 86 of 2006 raising various grounds, particularly since Annexure A6 representation preferred by him, followed by Annexure A7 reminder, did not yield any positive result. 5. A detailed reply statement was filed from the part of the department, seeking to sustain the course and events. After hearing both the sides, the Tribunal passed Exhibit P4 order declining interference and dismissing the O.A. as devoid of any merit. The petitioner immediately filed a Review Application pointing out that, eligibility had to be reckoned with reference to the '1[st] of January' of the year in which the vacancy had occurred and not with reference to the date on which the examination was conducted. But the claim was turned down and the Review Application was dismissed by the W.P (C) No. 21701 of 2009 4 Tribunal as per Exhibit P8 order dated 06.03.2009. This made the petitioner to challenge both Exhibits P4 and P8 before this Court and hence the writ petition. 6. Heard the learned counsel appearing for the petitioner as well as Sri. S. Krishnamoorthy, the learned Standing Counsel appearing on behalf of the department. 7. It is seen that the case moulded by the petitioner is mainly of two folds: the first contention is with regard to the higher merit level of the petitioner (allegedly having scored 138 marks in the examination). According to the petitioner, the said marks were scored off and only a lesser extent of 105 marks were given to the petitioner. The second contention is with regard to the relevant date to be reckoned for the purpose of assessing the eligibility norms. 8. During pendency of the proceedings before this Court, the respondents were alerted to be ready with all the relevant files, pursuant to which, the files have been produced. We have perused the files and permitted the learned counsel for the petitioner as well, to go through the files. After going through the entire records, the learned counsel for the W.P (C) No. 21701 of 2009 5 petitioner fairly submits that no instance of any manipulation, interpolation or correction with regard to the marks secured by the petitioner is brought out and that the said contention with reference to the factual aspects is not pressed any further. 9. The remaining question is with regard to the eligibility norms. The version of the respondents is that, Exhibit P1 notification was issued clearly stipulating that the minimum extent of 'five' years of regular service was to be as on the date of examination. The relevant portion of the notification reads as follows: “ii. GDS Officials - For GDS officials the upper age limit shall be 50 years with 5 years relaxation for SC/ST candidates and 3 years relaxation for OBC candidates as on 1[st] July 2005 and he/she should have completed a minimum of 5 years regular satisfactory service as on 1[st] January 2005.” This, according to the learned Standing Counsel, is in conformity with the relevant Rules, a copy of which has been produced as Annexure RR1 (produced along with the reply statement). The said Rules are by way of an amendment of the earlier Recruitment Rules brought into force on 25.02.1995. The relevant portion of the Rules reads as W.P (C) No. 21701 of 2009 6 follows: “(1) xxxxxxx (2) xxxxxxxx 2 (a) xxxxxxx “(a) For extra Departmental Agents, the upper age limit shall be 50 years with 5 years relaxation for the Scheduled Castes Scheduled Tribes Candidates as on 1[st] July of the year in which the examination is held and he should have completed a minimum of 5 years of satisfactory service as on **1[st] January of the year in which the examination is held”** . 10. On making a comparative analysis, it cannot but be said that the stipulation contained in Annexure A1 notification to have the qualification reckoned as on the date of examination is in conformity with the stipulation in the Department of Post (Postman/Village Postman and Mail Guards) Recruitment Amendment Rules, 1994, and hence in order. This being the position, the respondents cannot be blamed for having pursued any exercise/selection process contrary to the relevant Rules, or that they have extended any undue benefit to anybody, particularly the respondents 5 to 8. 11. It remains a fact that the respondents 5 to 8 would not have been qualified, if regular selection process was conducted by the Department in respect of the vacancies in the W.P (C) No. 21701 of 2009 7 year 2003 then and there. Due to some or other reason, the selection was got delayed and Annexure A1 notification was issued only in the year 2005. It could be reasonably presumed that at the time of formulation/amendment of the Rules in 1995, it was under the _bonafide_ belief of the department that the selection would be conducted without delay, i.e. every year and it was accordingly, that a stipulation was incorporated that the requirement of 'five years' could be reckoned with reference to the year of examination, to have it distinguished from the previous years. The adverse consequence, if at all resulted because the delay in conducting the examination, was not visualized at that point of time. As submitted by the learned counsel for the petitioner, fallacy in the Recruitment Rules was considered and realized later; pursuant to which, it was amended in the year 2010, the relevant portion of which reads as follows: “25% by direct recruitment on the basis of Competitive examination limited to Gramin Dak Sevaks of th recruiting Division who have worked for at least five years in that capacity as on the **1[st] day of January of the year to which the vacancy(ies) belong** failing which by direct recruitment”. W.P (C) No. 21701 of 2009 8 12. On going through the above Rules, it is seen that, by virtue of Rule 2, it has been clearly stipulated that the Rules shall come into force on the date of their publication in the official gazette. In other words, the Rules have not been given any retrospective effect, lest, it should unsettle the promotions already made. In so far as the above Rules were not having any retrospective application and the process of selection conducted pursuant to Annexure A1 notification was done in accordance with the Annexure RR1 Department of Post (Postman/Village Postman and Mail Guards) Recruitment Amendment Rules, 1994, the eligibility was to be assessed as on the 1st of January of the year of examination, i.e. of 2005. By virtue of this, the respondents 5 to 8 also came to be qualified to be considered, who accordingly were considered and placed at higher levels, by virtue of the higher marks secured by them in the examination. Only if the said respondents are weeded out (if their inclusion is not sustainable in accordance with Recruitment Rules) would there be a chance for the petitioner to climb up on the ladder, to be considered for the post in respect of the vacancies for the year 2003. W.P (C) No. 21701 of 2009 9 In the above circumstances, we find that there is absolutely no merit to call for interference with the verdict passed by the Tribunal. Writ petition fails and the same is dismissed accordingly. **P.R. RAMACHANDRA MENON JUDGE** **P. SOMARAJAN JUDGE** DMR/-