Binith C.S v Union of India

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 7TH DAY OF APRIL 2017/17TH CHAITHRA, 1939 OP (CAT).No. 86 of 2016 (Z) ---------------------------- AGAINST THE ORDER IN OA 142/2013 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 27-10-2015 PETITIONER(S)/RESPONDENTS: ------------------------------------- 1. UNION OF INDIA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA,MINISTRY OF COMMUNICATION & INFORMATION TECHNOLOGY,DEPARTMENT OF POSTS,DAK BHAVAN, SANSAD MARG,NEW DELHI-110001. 2. THE CHIEF POST MASTER GENERAL, KERALA CIRCLE,THIRUVANANTHAPURAM-695033. 3. THE SUPERINTENDENT OF POST OFFICES, CALICUT DIVISION,CALICUT-673005. 4. THE INSPECTOR OF POSTS, DEPARTMENT OF POSTS,KUNNAMANGALAM SUB DIVISION, KUNNAMANGALAM-673571. BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL RESPONDENT(S)/APPLICANT: ----------------------------------- BINITH C.S, AGED 28 YEARS S/O.CHANDRAN,RESIDING AT SRAMBIKKAL HOUSE, MUKKAM.P.O,CALICUT-673602. BY ADV. SRI.T.C.GOVINDA SWAMY BY ADV. SMT.T.N.SREEKALA THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 07-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 86 of 2016 (Z) ---------------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS: ----------------------------- - P1: TRUE COPY OF THE O.A.142 OF 2013 DATED 14.12.2014 FILED BY THE RESPONDENTS BEFORE THE CAT, ERNAKULAM BENCH. - P2: TRUE COPY OF THE REPLY STATEMENT IN THE AMENDED OA. - P3: TRUE COPY OF M.A.628/2014 IN O.A.142/2013 FILED BY THE RESPONDENT. - P4: TRUE COPY OF THE REPLY TO M.A.628/2014 IN O.A.142/2013. - P5: TRUE COPY OF THE ORDER DATED 27.10.2015 IN O.A.142 OF 2013 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH. ## RESPONDENT(S)' EXHIBITS:NIL ----------------------- //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. --------------------------------------------------O.P.(CAT)No.86 of 2016** **--------------------------------------------------Dated this the 7[th] day of April, 2017** ## **JUDGMENT** ## **Anil K. Narendran, J.** This original petition arises out of Ext.P5 order of the Central Administrative Tribunal, Ernakulam Bench dated 27.10.2015 in O.A.No.142 of 2013. The respondent herein, a retrenched Gramin Dak Sevak Mail Deliverer (for brevity, 'GDS MD') of Manasseri Branch Office under Kozhikode Postal Division, has approached the Tribunal in the said O.A. seeking for an order to quash Annexure A1 notification dated 16.1.2013 and for an order directing the petitioners herein to consider and appoint him against the vacant post of Gramin Dak Sevak Mail Carrier (for brevity, 'GDS MC') at Kodiyathur Post Office, notified vide Annexure A1 notification with all consequential benefits. 2. During the pendency of the O.A., vide Annexure A10 memorandum dated 11.3.2013, the applicant was informed that the Recruitment Rules do not provide for any special consideration or weightage to persons who might have worked in provisional vacancies or on stop gap arrangement and as such, any application made by him can be considered based on the Recruitment Rules only. **O.P.(CAT).86/2016** 2 On receipt of Annexure A10 memorandum, the applicant amended the O.A. by incorporating a challenge against the same. 3. The reliefs sought for in the O.A. were opposed by the petitioners herein by filing Ext.P2 reply statement contending, inter alia, that the applicant had worked as GDS MD-II at Manasseri Branch Office on provisional basis only for a total period of 1 year and 3½ months (from 26.9.2009 to 11.6.2010). Since the applicant has not rendered more than 3 years continuous employment from the date of appointment, he is not entitled for any alternative appointment as per the provisions of the Gramin Dak Sevak (Conduct and Employment) Rules, 2001 (for brevity, 'Recruitment Rules'). Therefore, he was informed vide Annexure A10 memorandum that, he is free to apply to any vacancy when notified and the application will be considered along with other applications received, as per the Recruitment Rules. The applicant was also informed that, the Recruitment Rules do not provide for any special consideration or weightage to a person, who might have worked in provisional vacancies or on stop gap arrangement. 4. During the pendency of the O.A., the applicant filed M.A.No.628 of 2014 seeking for an order directing the 3[rd] petitioner herein to appoint him against the vacant post of Gramin Dak Sevak **O.P.(CAT).86/2016** 3 Branch Postmaster (for brevity, 'GDS BPM') at Manasseri Branch Office, notified vide Annexure MA2 notification dated 5.3.2014, provisionally and subject to the final outcome of the O.A. The relief sought for in the said M.A. was opposed by the petitioners herein by filing Ext.P4 reply. 5. After considering the rival contentions, the Tribunal by Ext.P5 order dated 27.10.2015 disposed of the O.A. by directing the petitioners herein to appoint the applicant as GDS MD, Kodiyathur Post Office within 30 days from the date of receipt of a copy of the order. Feeling aggrieved by Ext.P5 order of the Tribunal, the petitioners herein are before this Court in this Original Petition, under Article 227 of the Constitution of India. 6. On 11.3.2016, this original petition was admitted on file and an interim order of stay was granted for a period of three months. The said interim order was later extended until further orders on 9.6.2016. 7. We heard the arguments of learned Assistant Solicitor General of India for the petitioners/respondents in the O.A. and also the learned counsel for the respondent/applicant. 8. The pleadings and materials on record would show that the applicant was provisionally selected as GDS MD-II at Manasseri **O.P.(CAT).86/2016** 4 Branch Office vide Annexure A2 memo dated 31.1.2009, on condition that such selection shall not confer on him any right for permanent appointment to that post. By Annexure A3 memo dated 10.2.2009 the applicant was directed to appear before GDS BPM, Manasseri for the prescribed training, which he underwent for a period of 4 days from 11.2.2009. As evident from Annexure A4 charge report, the applicant assumed charge on 26.2.2009. The applicant was issued with Annexure A5 provisional appointment order dated 1.5.2009, which would make it explicitly clear that the provisional appointment offered was subject to the settlement of case against Sri.Raju Jacob and that, the service rendered shall not be counted towards regular service as GDS. 9. The order of termination of the said Raju Jacob was under challenge in O.A.No.569 of 2008 filed before the Tribunal. By order dated 12.11.2009, the Tribunal allowed the said O.A. by ordering reinstatement of Raju Jacob. Consequently, the service of the applicant as GDS MD-II, Manasseri Branch Office was terminated vide Annexure A6 memo dated 11.6.2010. Challenging the said order of termination, the applicant approached the Tribunal in O.A.No.319 of 2011. The said O.A. ended in dismissal by Annexure A7 order dated 25.6.2012. The reasoning of the Tribunal, as contained in Paras.3 and **O.P.(CAT).86/2016** 5 ## 4 of the Annexure A7 order, reads thus; “3. From a reading of the above paragraphs it can be seen that the appointment was made against the vacancy created by the dismissal of Raju Jacob and the appointment of the applicant himself was provisional subject to termination, in case Raju Jacob was to be accommodated by an order of a Court. Annexure R-1 is a copy of the order of the Tribunal passed in Raju Jacob's case by which he was directed to be reinstated. Therefore, the vacancy to which the applicant was appointed, namely, Raju Jacob's vacancy, has to be filled up by reinstating Raju Jacob to the same post. Since the offer of appointment was accepted and acted upon, the applicant cannot come around and take a different stand. He was told in advance that his appointment was provisional and that it is liable to be terminated at any time in case Raju Jacob is to be reinstated. In clear terms he was told that his appointment was against the vacancy created by dismissal of Raju Jacob. On reinstatement of Raju Jacob the vacancy was filled up and the applicant cannot continue thereafter. Admittedly, the applicant is a claimant against general vacancy and not against reserved vacancy. 4. In the above facts and circumstances of the case, we find no merit in the O.A. and accordingly the same is dismissed. If, however, there is any general vacancy available in the Department, since the applicant was appointed against a regular selection, he can make a representation to that effect and the authorities shall duly consider the same.” 10. The Tribunal in Annexure A7 order found that the **O.P.(CAT).86/2016** 6 appointment of the applicant was made against the vacancy created by the dismissal of Raju Jacob and that, it is liable to be terminated at any time in case Raju Jacob is to be reinstated. By Annexure R1 order of the Tribunal the said Raju Jacob was directed to be reinstated. On such reinstatement, the applicant cannot continue in service and as such, he was rightly terminated by Annexure A6 memo dated 11.6.2010. Therefore, the Tribunal by Annexure A7 order dismissed O.A.No.319 of 2011, repelling the challenge made against Annexure A6. However, the Tribunal observed in Annexure A7 order that, if there is any general vacancy available in the Department, since the applicant was appointed under a regular selection, he can make a representation to that effect and the authorities shall duly consider the same. 11. Subsequent to Annexure A7 order of the Tribunal, the applicant submitted Annexure A8 representation dated 8.8.2012 with a request to consider him for appointment as GDS BPM, Neeleswaram against the vacancy that had arisen due to retirement of one Rajendran Nair. The said vacancy was filled up giving by-transfer appointment to another person. Later, the applicant filed Annexure A9 representation dated 10.1.2013 with a request to consider him for appointment as GDS MD, Manasseri which was turned down by **O.P.(CAT).86/2016** 7 Annexure A10 memorandum dated 11.3.2013 stating that the Recruitment Rules do not provide for any special consideration or weightage to a person, who might have worked in provisional vacancies or on stop gap arrangement. 12. Before the Tribunal the applicant challenged Annexure A1 notification dated 16.1.2013 inviting applications for the post of GDS MC, Kodiyathur Post Office, contending that the said notification is contrary to the specific direction contained in Annexure A7 order of the Tribunal to consider him for appointment as and when a general vacancy arises. It was also contended that, the applicant, who was regularly recruited to the post of GDS MD was terminated under fortuitous circumstances and it was in that background the Tribunal in Annexure A7 order directed that he should be considered for appointment if a general vacancy arises in the Department. Therefore, he is entitled to be considered and appointed against the vacancy of GDS MC notified in Annexure A1 notification, as a matter of course. However, Annexure A10 memorandum dated 11.3.2013 has been issued contrary to the direction contained in Annexure A7 order of the Tribunal. 13. A reading of Ext.P5 order would show that, while disposing of O.A.No.142 of 2013 the Tribunal virtually repelled the **O.P.(CAT).86/2016** 8 contention of the applicant that he is entitled to be considered and appointed against the vacancy of GDS MC notified in Annexure A1 notification, as a matter of course, in view of the direction contained in Annexure A7 order of the Tribunal. The reasoning of the Tribunal, as contained in Paras.5 and 6 of Ext.P5 order, reads thus; “5. O.A.No.319/2011 filed by applicant before this Tribunal was dismissed with the proviso that if there is a general vacancy available in the department and as the applicant was appointed by a regular selection, he can make a representation for the same and the authorities can consider the same. The respondent was right in not appointing the applicant to GDSMD Mannasseri as the applicant had not applied and the selection was finalised and appointment order issued on 21.6.2012 prior to the order of this Bench in respect of applicant made on 25.6.2012, i.e., 4 days after the appointment was made. As the appointment process had drawn up an extended panel of selected candidates, the offer of appointment, on the resignation of selected candidate, had to be made to the candidates placed in the extended panel of selected candidates in the serial order and the applicant's demand for being appointed will not be in the interest of justice to the selected candidates. The correct procedure would have been for the applicant to respond to Annexure A-1 notification with an application and a copy of this Tribunal's order for being considered for the post. 6. The applicant is now seeking appointment, knowing fully well that the notification inviting applications for the post of **O.P.(CAT).86/2016** 9 GDSMD Kodiyathur Post Office is a post for a period of one year, as the mail route is proposed to be mechanised and the post of GDS Mail Carrier will thereafter become redundant. The respondents inform that no further action has been taken to fill the post of GDSMD Kodiyathur in view of the Bench's direction on 19.2.2013 not to go ahead with the impugned notification. Be that as it may, vide Annexure A-3, the applicant was selected as GDSMD Mannassery BO and hence he would be fulfilling all the conditions for appointment as GDS. The respondent is directed to appoint the applicant as GDSMD Kodiyathur P.O within thirty days from the date of receipt of a copy this order.” 14. Similarly, a reading of Annexure A7 order would show that, while dismissing O.A.No.319 of 2011, the Tribunal repelled the challenge made by the applicant against his termination vide Annexure A6 memo dated 11.6.2010. In the said order, the Tribunal found that the appointment of the applicant was made against the vacancy created by the dismissal of Raju Jacob and as such, he is liable to be terminated in case Raju Jacob is to be reinstated. In view of the said finding in Annexure A7 order, the applicant cannot now contend that he, who was regularly recruited to the post of GDS MD, was terminated under fortuitous circumstances and it was in that background the Tribunal in Annexure A7 order directed that he should be considered for appointment if a general vacancy arises in the **O.P.(CAT).86/2016** 10 Department. 15. The applicant had worked as GDS MD-II at Manasseri Branch Office on provisional basis only for a total period of 1 year and 3½ months. The said fact is not in dispute. It is also not in dispute that, since the applicant has not rendered more than 3 years continuous employment from the date of appointment, he is not entitled to any alternative appointment as per the provisions of the Recruitment Rules. It was in such circumstances that, the applicant was rightly informed vide Annexure A10 memorandum that he is free to apply to any vacancy when notified and the application will be considered along with other applications received, as per the Recruitment Rules. He was also informed that, the Recruitment Rules do not provide for any special consideration or weightage to a person, who might have worked in provisional vacancies or on stop gap arrangement. 16. In **A.P. SRTC v. G. Srinivas Reddy [(2006) 3 SCC 674]** the Apex Court held that, where the High Court finds the decision making process erroneous and records its findings as to the manner in which the decision should be made, and then directs the authority to 'consider' the matter, the authority will have to consider and decide the matter in the light of its findings or observations of the **O.P.(CAT).86/2016** 11 Court. But where the High Court without recording any findings, or without expressing any view, merely directs the authority to 'consider' the matter, the authority will have to consider the matter in accordance with law, with reference to the facts and circumstances of the case, its power not being circumscribed by any observations or findings of the Court. 17. In Annexure A7 order, while dismissing O.A.No.319 of 2011 the Tribunal observed that, if there is any general vacancy available in the Department, since the applicant was appointed against a regular selection, he can make a representation to that effect and the authorities shall duly consider the same. A reading of Annexure A7 order would show that the Tribunal, without recording any finding as to the entitlement of the applicant for alternative appointment as per the provisions of the Recruitment Rules, merely directed the petitioners herein to duly consider the representation made by the applicant, if there is any general vacancy available in the Department, since he was appointed through a regular selection. The direction contained in Annexure A7 order is only to consider the representation made by the applicant in accordance with law, i.e., in accordance with the provisions of the Recruitment Rules in force. Therefore, the applicant who is not entitled for alternative **O.P.(CAT).86/2016** 12 appointment as per the provisions of the Recruitment Rules in force, is not entitled to be considered and appointed against the vacancy notified in Annexure A1 notification, as a matter of course. As such, the Tribunal went wrong in directing the petitioners herein to appoint the applicant as GDS MD at Kodiyathur Post Office on the ground that he would be fulfilling all the conditions for appointment as GDS. 18. Admittedly, the applicant has not responded to Annexure A1 notification dated 16.1.2013, within the time limit prescribed in the said notification. By order dated 19.2.2013, the Tribunal directed the petitioners herein not to go ahead with Annexure A1 notification. In view of the said order, no further action has been taken to fill the post of GDS MD at Kodiyathur Post Office. That by itself will not entitle the applicant to claim appointment to the vacancy notified vide Annexure A1. Once the challenge made against Annexure A1 notification fails, the petitioners herein are legally entitled to go ahead with the selection process pursuant to the said notification. In that view of the matter, we find no valid reason to sustain the direction contained in Ext.P5 order of the Tribunal by which the petitioners herein are directed to appoint the applicant as GDS MD at Kodiyathur Post Office within the time limit stipulated in the said order. **O.P.(CAT).86/2016** 13 In the result, this original petition is allowed setting aside the direction contained in Ext.P5 order directing the petitioners herein to appoint the applicant as GDS MD at Kodiyathur Post Office within the time limit stipulated in the said order, thereby dismissing O.A.No.142 of 2013 on the file of the Central Administrative Tribunal, Ernakulam Bench. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/ANIL K. NARENDRAN (JUDGE)** spc/