Ajith Kurian and others 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 TUESDAY, THE 29TH DAY OF NOVEMBER 2016/8TH AGRAHAYANA, 1938 OP (CAT).No. 301 of 2016 (Z) -------------------------------------AGAINST THE ORDER IN OA 180/2016 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH, DATED 23-11-2016 PETITIONERS/RESPONDENTS: - ---------------------------------------------- 1. UNION OF INDIA, - REPRESENTED BY ITS SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF COMMUNICATIONS, DEPARTMENT OF POSTS, DAK BHAVAN, NEW DELHI 110 001. 2. THE ASST. DIRECTOR GENERAL (DE), DEPARTMENT OF POSTS, DAK BHAVAN, NEW DELHI 110 001. 3. THE CHIEF POST MASTER GENERAL KERALA CIRCLE, TRIVANDRUM 695 033. 4. THE ASSISTANT DIRECTOR (ESTT/RECTT), - O/O CHIEF POSTMASTER GENERAL KERALA CIRCLE, TRIVANDRUM 695 033. BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENE RESPONDENTS/APPLICANTS: - -------------------------------------------- 1. AJITH KURIAN, AGED 42 YEARS, S/O C.K KURIAN, MANAGER (BUSINESS DEVELOPMENT), O/O THE CHIEF POSTMASTER GENERAL, TRIVANDRUM 695 033, RESIDINGA T TC 6/771(1), ARAPPURA NAGAR, VATTIYOORKAVU P.O, TRIVANDRUM 695 013. 2. SMT. V. SARADA, AGED 40 YEARS, W/O C. BHASKARAN, ASST. SUPERINTENDENT OF POST OFFICES, KASARAGODE SUB DIVISION, KASARAGODE 671 121, RESIDING AT VELLAMTHATTA HOUSE, RAVANESHWARAM P.O, NEAR BEKAL FORT, KASARAGODE, PIN 671 316. 3. SMT. P.S. SATHIMOL, AGED 45 YEARS, W/O V.T. HARIDAS, ASST. SUPERINTENDENT OF POST OFFICES, CHANGANACHERRY SUB DIVISION, CHANGANACHERRY, PIN 686 101, RESIDING AT NANDANAM, VARTHA NAGAR, MUTTAMABALAM P.O, KOTTAYAM 686 004. BY ADV. SRI.M.A.SHAFIK THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 29-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 301 of 2016 (Z) --------------------------------------- ## **APPENDIX** PETITIONERS' EXHIBITS : - ------------------------------------- EXHIBIT P1 : TRUE COPY OF THE OA NO 180/00953/2016 DATED 10-11-2016 FILED BY THE RESPONDENTS BEFORE THE CAT, ERNAKULAM BENCH. EXHIBIT P2 : TRUE COPY OF THE INTERIM ORDER IN OA NO 180/00953/2016 DATED 23-11-2016 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. RESPONDENTS' EXHIBITS : - NIL. -------------------------------------- // TRUE COPY // P.A. TO JUDGE DMR/- ## **P.R. RAMACHANDRA MENON** **&** ## **P. SOMARAJAN, JJ.** ---------------------------------------------------- ## **O.P. (CAT) No. 301 of 2016** ---------------------------------------------------- Dated this the 29[th] day of November, 2016 ## **J U D G M E N T** ## P.R. Ramachandra Menon, J. The challenge is against Exhibit P2 interim order passed by the Tribunal, whereby a positive direction has been given to the petitioners herein, who are the respondents in the O.A., to conduct different departmental examinations for 'each vacancy year', with a gap of minimum 40 days of advance notice, virtually stalling the examination scheduled to be conducted on 04.12.2016 as notified in Annexure A1. The said interim relief is stated as the final relief itself and hence the challenge. 2. When the matter is taken up for consideration, Sri. Shafik M.A. entered appearance on behalf of the respondents. Accordingly, we heard both the learned Assistant Solicitor General as well as the learned counsel appearing on behalf of the respondents/applicants. O.P. (CAT) No. 301 of 2016 2 3. The sum and substance of the issue involved is with regard to the claim for promotion to the Postal Group B Service under the Limited Departmental Competitive Examination (LDCE) quota, for which an All India Examination is scheduled to be conducted. It is an admitted fact that vacancies were not filled up from the year 2012 onwards due to various reasons, including pendency of proceedings before different Tribunals/High Courts and finally, Annexure A1 notification was issued on 07.10.2016 for conducting the examination showing the relevant particulars. 4. The applicants who are working as Assistant Superintendent of Post offices are aspirants to the next higher post of Superintendent of Post offices and they want to take part in the examination. The step being pursued by the Department to conduct the All India Examination clubbing all the vacancies together, without conducting separate examinations in respect of every vacancy year; that too, on a 'Sunday', without giving the minimum period of 'three months' before any examination as envisaged in Clause No.2 of Annexure A11 (Appendix No.37, Rules O.P. (CAT) No. 301 of 2016 3 Relating to Departmental Examinations) and without giving minimum gap of 40 days between two such examinations as envisaged under Clause No.2 of the very same Rules made them to approach the Tribunal with the following prayers. “i) To call for the records leading to the issue of Annexure A1 notification issued by the second respondent and to quash and set aside the same as illegal, arbitrary, discriminatory and unconstitutional; ii) To declare that the action of the respondents in conducting a single LDCE filling up the PS Group B vacancies which have arisen for the period from 2012-2017 thereby reducing the chances and opportunity matrix of the applicants against their legitimate expectation is highly arbitrary, discriminatory, unconstitutional and violative of the principles of natural justice; iii) To declare that the action of the respondents in conducting LDCE as per Annexure A1 notification before settling the issue of seniority of Direct Recruitment Inspectors is discriminatory and unconstitutional; iv) To declare that the action of the respondents in conducting LDCE without giving advance notice of three months and on a Sunday contrary to the instructions contained in Postal Manual volume IV is highly irregular and illegal; v) To direct the respondents to conduct separate examinations year-wise after compiling the vacancies O.P. (CAT) No. 301 of 2016 4 from 2012 to 2014 Calendar Year Wise and vacancies for the period from 2015 onwards Financial Year Wise as per Annexure A9 and to postpone the examination so as to enable the respondents to bring about such changes; vi) To grant any such relief which may be prayed for or which this Hon'ble Tribunal may be deem fit and proper to grant in the facts and circumstances of the case; and vii) To grant the costs of this original application.” 5. According to the petitioners herein, the facts and circumstances were sought to be explained, also seeking for time to file a reply statement. But, without considering the said request, the Tribunal passed Exhibit P2 order, virtually accepting the case projected by the applicants and granting the relief as mentioned already; the operative portion of which reads as follows: “We note that this is an all India examination which requires arrangements to be made on an all India basis. However, the arrangement would be similar in each of the examination and the same locations and same set of invigilators could be used. The respondent is directed to hold the examination separately for each vacancy year with a gap of minimum 40 days advance notice as per Appendix 37 of P&T Manual Vol.IV so that the applicants can O.P. (CAT) No. 301 of 2016 5 avail the year wise chance of appearing in the examination. The respondents can notify the dates of five examinations, if necessary in advance, so that the applicants appearing in each year would get prior information of the dates.” 6. During the course of hearing, the learned Assistant Solicitor General submits that no prejudice will be caused to the applicants in any manner in so far as Annexure A1 notification itself takes care of the situation; that the eligibility has to be considered vacancy wise, i.e. on the basis of year wise vacancy and that only those candidates who are qualified in a given vacancy year alone will be considered in respect of the particular year. It is also pointed out that there is nothing arbitrary or illegal in the course pursued by the Department in conducting a common examination, which can only be beneficial to the participants in so far as they need not trouble themselves for more than one occasion, for being considered in respect of the vacancies. It is further stated that such a course was endorsed as correct by the Tribunal in an earlier round of litigation in connection with the appointment of Assistants in the BSNL, as per the verdict dated 15.03.2011 passed in O.P. (CAT) No. 301 of 2016 6 O.A. No.224/2010. A copy of the said verdict is also placed for consideration. 7. The learned counsel for the respondents, however, points out that the case actually projected by the applicants before the Tribunal is not correctly understood by the Department. The contentions are of many fold. As pointed out already, the candidates should have been given a minimum of 'three months' before any examination. The 'vacancy year' has to be considered separately, instead of clubbing all the vacancies in respect of different vacancy years together and by conducting a common examination for all the different vacancy years, which may be convenient to the Department, but detrimental to the rights and interest of the participants in so far as they will be denied a chance to improve, based on the performance in the first examination and to secure employment on proving their credentials. Further, the Department is liable to grant minimum 40 days between two examinations, based on the contents of Annexure A11 (Appendix No.37, Rules Relating to Departmental Examinations). The learned counsel also points out that, it has also been categorically provided O.P. (CAT) No. 301 of 2016 7 under Annexure A11, that such Departmental Examination shall not be conducted on holidays, particularly on Sundays, and these aspects have been correctly taken note of by the Tribunal, thus leading to Exhibit P2 order, which is not liable to be assailed under any circumstance. 8. On going through the contents of Annexure A1 notification it is seen that the different vacancy years have been reckoned separately to decide the crucial date for service eligibility conditions, as discernible from paragraph 7, which is extracted below: “7. The crucial date for service eligibility condition for the following years of examination will be as under:- |**_S.No._**|**_Exam year/Period of vacancies_**|**_Crucial date of_**<br>**_eligibility_**| |---|---|---| |1|2012-13(01.04.2012 to 31.03.2013)|01/01/12| |2|2013-14(01.04.2013 to 31.03.2014)|01/01/13| |3|2014-15(01.04.2014 to 31.03.2015)|01/01/14| |4|2015-16 (01.04.2015 to 31.03.2016)|01/04/15 (As per letter<br>No.25-10/2014-SPG<br>dated 09.07.2014)| |5|2016-17 (01.04.2016 to 31.03.2017)|01.04.2016 (As per<br>letter No.25-10/2014-<br>SPG dated 09.07.2014)| O.P. (CAT) No. 301 of 2016 8 9. The category-wise break-up of vacancies to be filled through the PS Group 'B' Examinations for the different years are given under paragraph 9, which is also reproduced below for convenience of reference: “9. The category-wise break-up of vacancies to be filled through the PS Group 'B' Examinations 2012-13, 201314, 2014-15, 2015-16 and 2016-17 are as under:- |**_Examination for_**|**_Year_**|**_Category-wise break up of vacancies_**|**_Category-wise break up of vacancies_**|**_Category-wise break up of vacancies_**|**_Category-wise break up of vacancies_**|**_Category-wise break up of vacancies_**|**_Category-wise break up of vacancies_**|**_Category-wise break up of vacancies_**| |---|---|---|---|---|---|---|---|---| |||**_UR_**||**_SC_**||**_ST_**||**_Total_**| |Inspector Posts Line<br>officials (19% quota of<br>vacancies)|2012-13|6|4|||1||11| ||2013-14|21|4|||2||27| ||2014-15|30|8|||3||41| ||2015-16|32|2|||3||37| ||2016-17|1|0|||0||1| |General Line officials<br>(06%<br>quota<br>of<br>vacancies)|2012-13|3|0|||1||4| ||2013-14|4|2|||0||6| ||2014-15|3|2|||0||5| ||2015-16|7|0|||0||7| ||2016-17|3|0|||0||3| 10. From the above, it appears that the steps being pursued by the Department are to consider the eligibility of different candidates satisfying relevant criteria as on the given date, not by mixing up all the candidates together, but by segregating them based on the vacancies in different O.P. (CAT) No. 301 of 2016 9 vacancy years. Similarly, it is also seen from paragraph 7, particularly under Serial No.1 to 3 in relation to exam year 2012-2013, 2013-2014 & 2014-2015, the crucial date of eligibility has been reckoned as **01.01.2014** and for the years 2015-2016 and 2016-2017, it is as on **01.04.2015** and **01.04.2016** respectively. In the case of the former group, i.e. up to and including 2014-2015, it is calendar - wise and in respect of the latter years, it is financial year wise, as contended by the applicants with reference to Annexure A9. If this be correct and as supported by the submission made by the learned Assistant Solicitor General, this Court is of the _prima facie_ view that there cannot be any further grievance with regard to this aspect, with reference to the different vacancy wise years and reckoning of the crucial date as 'calendar year' in respect of the years 2012-2013, 2013-2014 & 2014-2015 and 'financial year' from 2015 onwards. 11. However, a further question may arise as to the prejudice, if at all any, caused to the applicants by conducting a common examination, instead of separate examinations. This has to be considered by the Tribunal O.P. (CAT) No. 301 of 2016 10 including all other points as well, after completing the pleadings and affording an opportunity of hearing to both the sides. The said exercise may take some time, but that is not a reason to stall the entire examination which is scheduled on 04.12.2016, to be conducted on All India basis. It will only unsettle the equilibrium causing much loss and hardship to all concerned. This Court finds it fit and proper that the outcome of the examination could be made subject to the result of the O.A. in so far as the proceedings in respect of the Kerala region is concerned. 12. Important question to be considered is whether Exhibit P2 order passed by the Tribunal is sustainable in the eye of law, if it amounts to a 'final relief'. From the prayers raised in the original application and the relief now granted by the Tribunal by way of Exhibit P2, it is seen that though the interim relief sought for was only for a 'stay' of further proceedings pursuant to Annexure A1 notification in relation to the test scheduled on 04.12.2016, the Tribunal has passed an order virtually granting the 'main relief' sought for in the O.A. It is settled law, that main relief cannot be granted in the form of an interim relief. We find O.P. (CAT) No. 301 of 2016 11 support from the ruling rendered by the Supreme Court as reported in _Bank of Maharashtra v. Race Shipping & Transport Co. Pvt. Limited and anr._ _**[JT 1995 (3) SC 175]**_ . 13. In the above circumstances, we find that the petitioners are entitled to succeed. The Exhibit P2 order passed by the Tribunal stands set aside. Further proceedings pursuant to the test scheduled to be held on 04.12.2016 as noted in Annexure A1 shall be subject to the orders to be passed by the Tribunal in the O.A. The merit of the case shall be considered in the light of the actual facts and figures, the relevant provisions of law along and the binding precedents, untrammelled by the observations made by this Court. Original petition is allowed. No cost. ## **P.R. RAMACHANDRA MENON JUDGE** ## **P. SOMARAJAN JUDGE** DMR/-