Chief Postmaster General, Kerala Circle, Thiruvananthapuram; Senior Superintendent of Post Offices, Thiruvananthapuram North Division; Superintendent of Post Offices, Thiruvananthapuram South Division; Union of India v. M. Harish Khan, V.K. Unnikrishnan, S. Suja Chellan, S. Deepa, S. Asha, Lal Bhaskaran, P.S. Narmada, Benchima Chandra, M. Shuhurdeen

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **TUESDAY, THE 19TH DAY OF MARCH 2013/28TH PHALGUNA 1934** **OP (CAT).No. 4496 of 2012 (Z)** **------------------------------------------** **[AGAINST THE ORDER DATED 30/10/2012 IN O.A .NO.633/2012 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH]** **............** **PETITIONERS:** **---------------------** **1. THE CHIEF POSTMASTER GENERAL, KERALA CIRCLE, THIRUVANANTHAPURAM.** **2. THE SENIOR SUPERINTENDENT OF POST OFFICES, THRIUVANANTHAPURAM NORTH DIVISION, THIRUVANANTHAPURAM- 695 001.** **3. THE SUPERINTENDENT OF POST OFFICES, THIRUVANANTHAPURAM SOUTH DIVISON, THIRUVANANTHAPURAM- 695 036.** **4. THE UNION OF INDIA,** - **REPRESENTED BY SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF COMMUNICATIONS, DEPARTMENT OF POSTS, NEW DELHI.** ## **BY SRI.S.KRISHNAMOORTHY, C.G.C.** **RESPONDENTS:** **------------------------** ## **1. M.HARISH KHAN,** - **S/O.MYTHEEN KANNU, POST MAN, VALLAKADAVU P.O, RESIDING AT PANAYIL VEEDU, KARIYIL, KAZHAKOOTTAM, THIRUVANANTHAPURAM- 695 582.** ## **2. V.K.UNNIKRISHNAN,** - **S/O.VENUGOPALAN NAIR, POST MAN, VIKAS BHAVAN P.O, RESIDING AT AMBADI, VRA 66, M.G ROAD, ATTINGAL, THIRUVANANTHAPURAM- 695 101.** **Prv.** ## **O.P.(CAT).NO.4496/2012-Z:** ## **3. S.SUJA CHELLAN,** **W/O.P.RAJU CHANDRAN, DEPARTMENTAL STAMP VENDOR, PATTOM PALACE P.O, RESIDING AT TC 3/1115, ANJANEYAM, VYASA NAGAR, HOUSE NO.97, PATTOM P.O, THIRUVANANTHAPURAM- 695 004.** ## **4. S.DEEPA,** - **W/O.RAJENDRA KUMAR, POST MAN, VANCHIYOOR P.O, RESIDING AT ARAPURA VILLA, KUDAVOOR P.O, THIRUVANANTHAPURAM- 695 313.** ## **5. S.ASHA,** - **W/O.SAJU V, POST MAN, VIKAS BHAVAN P.O, RESIDING AT S.V. RAJ BHAVNAN, BHARATHANNUR P.O, PANGODE, THIRUVANANTHAPURAM -695 609.** ## **6. LAL BHASKARAN,** - **S/O.BHASKARAN, POSTMAN, VALLAKADAVU P.O, RESIDING AT RAJ BHAVAN, NEYYATTINKARA, THIRUVANANTHAPURAM- 695 121.** ## **7. P.S.NARMADA,** **W/O.G.P.PRIJINATH, POST MAN, THIRUVANANTHAPURAM FORT P.O, RESIDING AT NARMADA BHAVAN, KUTTIYANI PANDALACODE P.O, VATTAPPARA, THIRUVANANTHAPURAM- 695 028.** ## **8. BENCHIMA CHANDRA,** - **W/O.SYAM SANKAR, POST MAN, KARAMANA P.O, RESIDING AT LALITHA NIVAS, MANALI VILLA, NEYYATTINKARA P.O, THIRUVANANTHAPURAM- 695 121.** ## **9. M.SHUHRUDEEN,** **S/O.MUHAMMED MUSTHAFA, POSTMAN, VATTIYOORKAVU P.O, REISIDING AT BISMI, THARATTA ROAD, KACHANI, KARAKULAM P.O, THIRUVANANTHAPURAM- 695 564.** **R1 TO R9 BY ADV. SRI.VISHNU.S. CHEMPAZHANTHIYIL.** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 19-03-2013, ALONG WITH O.P.(CAT) .NO. 44/2013 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **O.P.(CAT).NO.4496/2012-Z:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1. TRUE COPY OF DEPARTMENT OF POSTS (POSTAL ASSISTANTS AND SORTING ASSISTANTS) RECRUITMENT RULES 2011.** **EXHIBIT P2. TRUE COPY OF DIRECTORATE LETTER NO.37-15/2008-SPB 1 DATED 28.7.2009 CONVEYING APPROVAL FOR FILLING UP VACANCIES OF 2006 & 2007.** **EXHIBIT P3. TRUE COPY OF APPOINTMENT ORDER ISSUED TO THE IST RESPONDENT.** **EXHIBIT P4. TURE COPY OF THE OA NO.633/2012 FILED BY THE RESPONDENT.** **EXHIBIT P5. TRUE COPY OF THE REPLY STATEMENT IN OA NO.633/2012 FILED BY THE PETITIONER.** **EXHIBIT P6. TRUE COPY OF THE ORDER DATED 30.10.12 IN OA 633/12 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## Thottathil B.Radhakrishnan ## & B.Kemal Pasha, JJ. = = = = = = = = = = = = = = = = = = = = = = = = OP(CAT)Nos.4496 of 2012 and 35, 44, 78, 145, 296, 654, 706, 815, 878, 958, 968, 1009, 1031, 1048 & 1082 of 2013 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 19th day of March, 2013 ## Judgment Thottathil B.Radhakrishnan, J. 1.These Original Petitions are filed by the Postal Establishment invoking Article 227 of the Constitution of India challenging two sets of common orders issued by the Central Administrative Tribunal in different Original Applications filed by persons aspiring to move to the category of Postal Assistants from among the category of Postman. 2.The position which cannot be disputed is that for OPCAT4496/12 & con.cases -: 2 :- about three years or so, the Department did not conduct the test for appointment of Postman; by promotion of the in-service candidates; or otherwise from among Gramin Dak Sevak (ED Agents); or by direct recruitment from the open market. That test is called “the LGO Examination”. This means that the Postmen, who would have been in the zone of consideration, lost the opportunity of counting the requisite service of three years for competing in the test, to be appointed as Postal Assistants. 3.The learned Senior Panel Counsel for Central Government is justified in pointing out that the Rules require three years of regular service in the category of Postman for competing in the LGO Examination. But the fact of the matter remains, as already noted, that the situation in hand is merely the making of the Department because, they did not conduct the examinations in time, though vacancies were available. - 4.The Hon'ble Supreme Court of India in Nirmal OPCAT4496/12 & con.cases -: 3 :- Chandra Bhattacharjee v. Union of India [1991 Supp (2) SCC 363] held that the mistake or delay on the part of the department should not be permitted to recoil on the employees. Following that and the decision of Their Lordships in State of Maharashtra v. Jagannath Achyut Karandikar [1989 SCC (L & S) 417] that it would be unjust, unreasonable and arbitrary to penalise a person for the default of the Government to hold the examination every year, the Ernakulam Bench of the CAT ordered O.A.No.849 of 2010 directing, among other things, that the Postmen were entitled to have counted, the service as notional from the date of occurrence of vacancies. That order has been applied by the Tribunal as a precedent when the question, at final hearing of the issue before the Tribunal was as to whether notional service in the Postman cadre from the date of occurrence of vacancies is to be counted for the purpose of counting the qualifying service for appearing in the LGO Examination for promotion as Postal Assistants/Sorting Assistants. OPCAT4496/12 & con.cases -: 4 :- 5.Notwithstanding the binding nature of the order in O.A.No.849 of 2010 as a precedent on the learned Tribunal, we have bestowed our anxious consideration to the submissions of the learned Senior Panel Counsel for Central Government to the contra; but we did not find way to agree with him. We say so because, while the Rules provide that a person has to earn three years of regular service in the category of Postman to compete in the LGO Examination; the fact of the matter remains that examinations not having done to the category of Postman, they could not earn such regular service. That was for not fault of those persons. That was the reason why the Tribunal had held that such period has to be counted as notional service to be reckoned from the date of occurrence of vacancies. If we were to contradict the view taken in the matter, definitely the verdict handed down to the employees would become illusory. The verdict granted by the Tribunal to the employees does not merit any interference in jurisdiction under Article 227 of the Constitution. OPCAT4496/12 & con.cases -: 5 :- 6.We record the submission of the learned Senior Panel Counsel for Central Government that there are some litigations pending before the Hon'ble Supreme Court of India touching the selection of Postman. Whatever be the impact of any such litigation, is not a matter that should concern us while examining the correctness of the order impugned before us. We leave open that issue. - 7.However, the direction of the Tribunal that the results will be duly declared and promotions will be made in terms of the directions in the order of the CAT does not call for any interference by us. In the result, these original petitions fail and they are accordingly dismissed. Thottathil B.Radhakrishnan Judge B.Kemal Pasha Judge ## Sha/