Chief Postmaster General, Kerala Circle, Thiruvananthapuram v. V. Manjusha & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **TUESDAY, THE 20TH DAY OF DECEMBER 2011/29TH AGRAHAYANA 1933** ## **WP(C).No. 36443 of 2007 (Z)** **--------------------------OA.858/2006 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH. .................** **PETITIONER(S): ------------------------** **1. CHIEF POSTMASTER GENERAL, KERALA CIRCLE, THIRUVANANTHAPURAM-695 033.** **2. POSTMASTER GENERAL, CENTRAL REGION, KOCHI-682 018.** **3. SUPERINTENDENT OF POST OFFICES, IRINJALAKUDA DIVISION, IRINJALAKUDA-680 121.** **4. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF COMMUNICATIONS DEPARTMENT OF POSTS, NEW DELHI-110 001.** ## **BY ADV. SRI.P.PARAMESWARAN NAIR, ASST. SG. OF INDIA.** **RESPONDENT(S): --------------------------** **1. V. MANJUSHA, D/O. LATE K.GANGADHARAN, GDS BRANCH POSTMASTER,** **ARATTUPUZHA BO, URAKAM S.O.-680 562, RESIDING AT KIZHUVEETTIL HOUSE, ARATTUPUZHA, IRINJALAKUDA.** **2. K.M.THOMAS, S/O. LATE K.D.MATHAI, GDS MAIL DELIVERER, IRINJALAKUDA POSTAL DIVISION, RESIDING AT KARUKUTTIKARAN HOUSE, P.O.THUMBUR-680 662.** **3. P.P.VANAJAKUMARI, POSTMAN, KODUNGALLUR,** **IRINJALAKUDA DIVISION-680 664.** **WP(C).No. 36443 of 2007 (Z)** **4. K.P. SMITHA, POSTMAN, KARUPADANNA, IRINJALAKUDA POSTAL DIVISION-680 670.** **R1 & R2 BY SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE. ADVS. SMT.K.RADHAMANI AMMA, SRI.ANTONY MUKKATH, SRI.NIKHIL S.KUMAR. R3 BY ADV. SRI.P.C.SEBASTIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-12-2011, ALONG WITH W.P.(C) NO. 7188 OF 2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** **WP(C).No. 36443 of 2007 (Z)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXT.P1 COPY OF THE O.A. NO.858/2006 ALONG WITH ANNEXURES. EXT.P2 COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS HEREIN THE ABOVE OA DATED 19/04/2007. EXT.P3 COPY OF THE ORDER PASSED BY HON'BLE TRIBUNAL IN O.A.807/1999 AND 1286/1997 DATED 21/03/2000. EXT.P4 COPY OF THE ORDER DATED 18/07/2007 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL IN O.A. NO.858/2006.** ## **RESPONDENT'S EXHIBITS:NIL.** **//TRUE COPY//** **P.A. TO JUDGE** **rs.** ## **C.R.** ## **Manjula Chellur, Ag. C.J. & P.R.Ramachandra Menon, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.36443 OF 2007, O.P.(CAT) No.200 OF 2010, W.P.(C) 7188 & 22342 OF 2010, O.P(CAT)Nos.1095, 1099, 1228, 1501, 1638, 1696 & 1754 OF 2011. - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of December, 2011 ## **JUDGMENT** ## **Manjula Chellur, Ag. C.J.** ## **W.P.(C) No.36443/2007(S)** The petitioner is the Postal Department in all the petitions. Respondents 1, 2, 3 and 6 were petitioners in O.A.No.858 of 2006 before the Central Administrative Tribunal, Ernakulam (for short 'CAT') and respondents 1 and 2 herein were the applicants before the CAT and respondents 3 and 4 were private respondents 4 and 5 in the Original Applications. 2. The applicants before CAT were working as Gramin Dak Sevak Branch Post Master, Arattupuzha and Gramin Dak Sevak Mail Deliverer, Puthanchira respectively under the postal division of Irinjalakkuda. When the second respondent therein notified examination for promotion/recruitment to the cadre of Postman/Mail Guard, respondents 1 and 2 herein had applied and appeared for the examination. On seeing the recruitment W.P.(C) No.36443 of 2007 and conn. cases. **==> picture [24 x 10] intentionally omitted <==** process in the notification issued, after verifying vacancy position to the above said posts and the date of examination, the applicants had applied for communication of the marks obtained by them. They were not selected as informed, as they were less meritorious than the selected candidates against two vacancies. Hence they approached CAT in O.A.No.858 of 2006. 3. Before the CAT, the challenge was, the department was not legally competent under the recruitment rules to fill up the vacancies notified, as reserved under merit quota, from OBC candidates who secured lesser marks than the applicants. They also sought for a direction to adhere to the order of merit indicated in the rank list and appoint the applicants to the post of Postman with retrospective date with all the consequential benefits. The CAT allowed application No. 858 of 2006 and the present appeal is filed aggrieved by the order of the CAT. ## **O.P(CAT) 200/2010:** 4. This is directed against the orders of CAT in O.A.No.615 of 2009. This petition was by the Postal Department aggrieved by the orders of the CAT dated 24.06.2010. The W.P.(C) No.36443 of 2007 and conn. cases. ## -:3:- respondents herein were the applicants working as Gramin Dak Sevak (for short GDS). According to the applicants, the posting of GDS to the post of Postman is a promotional post from GDS. But, according to the Department, it was a class by itself and a feeder category to the post of Postman from GDS. According to them, the GDS has to participate in the departmental examination as an 'outsider' as if it is a direct recruitment, provided he has not crossed the age of 50 years. In other words, according to the Department, in view of the age restriction, the applicant/s was/were not entitled to compete for the said departmental examination on account of age bar. The CAT ultimately, after hearing both the parties held, it was a promotion on the basis of seniority and it is a promotional post from GDS, therefore, the age bar does not apply and the action of the department was in clear violation of the recruitment rules. Aggrieved by the same, the present petition is filed seeking to set aside the orders of the CAT. ## **W.P.(C)No. 7188 OF 2010** 5. This writ petition was also filed at the instance of the Postal Department. The respondents herein-1 to 5, were the W.P.(C) No.36443 of 2007 and conn. cases. ## -:4:- applicants in O.A.No. 423 of 2008 before the CAT. The applicants 1 to 5 were working as Extra Department Mail Deliverers, Branch Post Master and Mail Carriers who had completed 15 years' of service. A seniority list of GDS in Vadakara Postal Division came to be published on 01.07.2004 wherein serial numbers of the applicants before the CAT were shown as 89, 98, 102, 103 and 108 respectively. According to them, they were eligible and entitled to be promoted to the post of Postman against 25% vacancies earmarked for Extra Departmental Agents on the basis of their running seniority in accordance with Col.11(2) (i) of Schedule 2 of the Recruitment Rules of 1989, which came to be amended in 1994. So far as 15 years of running seniority, the department contested the matter and ultimately, the CAT opined that the controversy in the above application was already considered in similar matters in O.A. No.277 of 2004 and 704 of 2006 and consequently allowed O.A.No.423 of 2008 on 04.02.2009. ## **W.P.(C) No.22342 of 2010** 6. This writ petition was filed challenging the orders in O.A.No.699 of 2009 on the file of the CAT, Ernakulam Bench. ## W.P.(C) No.36443 of 2007 and conn. cases. **==> picture [24 x 10] intentionally omitted <==** The challenge before the CAT was also with regard to the age of GDS while considering his/their recruitment to the post of Postman. The Tribunal on the applications of the respondents/ GDS, placing reliance on the earlier decision of the Tribunal where similar controversy of Group D promotions arose and ultimately concluded no question of age restriction could be considered, so far as GDS/Extra Departmental Agents/employees are concerned. Therefore, the Original Application was allowed and the same is impugned in this writ petition by the department. ## **O.P.(CAT) 1696 OF 2011** 7. This also pertains to Vadakara Postal Division. The Postal Department is the petitioner before us in the writ petition. This arises out of O.A.No.349 OF 2009 on the file of the CAT. The applicants approached the CAT contending that they are the seniormost GDS as on the date of occurrence of vacancies in the year 2005 and contended that they are to be considered by virtue of Col.11(2)(i) of the above said Recruitment Rules. As a matter of fact, the applicants were before the CAT in a second round of litigation. As on an earlier occasion, they approached ## W.P.(C) No.36443 of 2007 and conn. cases. **==> picture [24 x 10] intentionally omitted <==** the CAT in O.A.No.704 of 2006 which came to be allowed on 23.04.2007, the Tribunal directed the respondent authority to take immediate steps for filling up the promotional vacancies in the cadre of Postman for 2004-05 in Vadakara postal division and to consider the case of the applicants in O.A. 704 of 2006 in accordance with their seniority depending upon compliance of eligibility criteria in terms of recruitment rules. A review application also came to be filed before the CAT and the same was dismissed. Aggrieved by the same, the Postal Department approached this Court in W.P.(C)19182 of 2008. But the writ petition came to be dismissed on 07.07.2008. Thereafter, the applicants filed COC 55 of 2008 complaining disobedience of the directions of the CAT in O.A. 704 of 2006. 8. One Mr.A.Abdul Salam, Superintendent of Post Office, Vadakara Division filed an affidavit stating that one vacancy falling under 25% seniority quota has already been filled up by appointing one M.K. Balachandran and hence there was no vacancy under seniority quota for the year 2004-05. It was also contended that even after appointing M.K. Balachandran, two more posts were vacant to be filled up in the ## W.P.(C) No.36443 of 2007 and conn. cases. **==> picture [24 x 10] intentionally omitted <==** year 2005 to comply with the direction of the CAT. However, the Screening Committee did not approve the case of the applicants on the ground that two posts were direct recruitment posts and not promotional post. A review was also filed. However, taking into consideration all these facts, ultimately, the Tribunal allowed O.A.No. 349 of 2009 by its order dated 22.02.2011. Aggrieved by the same, the present petition is filed. 9. In this writ petition, according to the department, once GDS opted for Group D cadre, he could not have again sought for his promotion from GDS Group to Postman , i.e., Group C post; therefore, CAT was erroneous in allowing the appeal. It is also pertinent to mention here that in the second round of litigation, in O.A. 349 of 2009, more or less, the controversy was between the two persons i.e., the first respondent herein and the second respondent Mr. Balachandran, who was promoted as Postman earlier to the first respondent in the year 2007 based on the seniority as per Annexure A-14. However, the Department before us is challenging the order dated 26.07.2010 on the ground that the first respondent was not entitled to seek promotion as Postman on two grounds; one W.P.(C) No.36443 of 2007 and conn. cases. **==> picture [24 x 10] intentionally omitted <==** from GDS there is no question of promotion to the post of Postman as it is a class by itself, a separate independent feeder category and secondly, after opting out to be appointed as Group D employee, he could not have changed his stand and sought for the post of Postman. **O.P(CAT)Nos.1095, 1099, 1228, 1501, 1638 & 1754 OF 2011:** 10. O.P.(CAT) Nos. 1754 and 1228 of 2011 arise out of a common order in O.A. 608 of 2010. O.P.(CAT)No. 1754 of 2011 is filed by the department and O.P.(CAT) No.1228 of 2011 is filed by the private respondent before the CAT. O.P.(CAT) Nos.1638 and 1095 of 2011 arose out of a common order in O.A.No.436 of 2010. O.P.(CAT)No. 1638 of 2011 is filed by the postal department and O.P.(CAT)No.1095 of 2011 is filed by the private respondent before the CAT. O.P.(CAT)No. 1501 of 2011 is filed by the postal department and O.P.(CAT)No.1099 of 2011 is filed by the private respondent before the CAT, who lost it in favour of the applicant. These two O.Ps are filed challenging the orders in O.A.232 of 2010 on the file of the CAT. The above W.P.(C) No.36443 of 2007 and conn. cases. ## -:9:- six Original Petitions involve a common question, i.e., whether reservation of posts for OBC group is legal or not. 11. According to the department, the very recruitment in question, so far as GDS/Extra Departmental Agents are concerned is not a promotion, but recruitment which can be treated as a direct recruitment. Therefore, reservation of posts for OBC candidates was permissible and the Tribunal was not justified in rejecting the plea of the department by allowing the application filed by the applicants. 12. In all these cases, the question relates to the recruitment/appoint of Postman from among the GDS (earlier Extra Departmental Agents). It is not in dispute that the recruitment for the post of Postman is governed by Department of Posts Recruitment Rules of 1989. The relevant years in which the dispute arose pertain to 2004, 2005, 2007, 2008 and 2009. According to the learned counsel Mr.Krishnamoorthy who represents the department, the post of GDS under Col.11(2)(i) and (ii) is direct recruitment and not a promotion. He brought to our notice during the course of argument that so far as Postman is concerned, it is Group C post and below the Postman W.P.(C) No.36443 of 2007 and conn. cases. **==> picture [30 x 10] intentionally omitted <==** there is Group D post, from where promotions are made by direct recruitment. From this Group D, appointments are made to Postman by promotion and so far as from the post of GDS, it is only a direct recruitment as they are not in any regular classification of posts of the department. In other words, he contends that this GDS is a class by itself and not a feeder category like Group D post. Therefore, the appointment from GDS to Postman and other equivalent cadre is only by direct recruitment and it cannot be considered as a promotion. 13. The next controversy is with regard to the age restriction for general category and also for reserve category of SC/ST. According to the learned Counsel, the age restriction contemplated under Col.7(ii) is applicable for appointments under Col.11(1) and (2). The third controversy is with regard to the OBC reservation. According to the learned Counsel, once appointment from GDS to Postman is considered as a direct recruitment, the department was justified in reserving certain posts for OBC category. Therefore, the Tribunal was not justified in holding that there was no OBC reservation as such to the post of Postman from GDS. It is further contended, the actual affected ## W.P.(C) No.36443 of 2007 and conn. cases. **==> picture [30 x 10] intentionally omitted <==** parties are not before us, therefore, the Tribunal ought not to have allowed the applications granting the reliefs to the applicants before the Tribunal, as it would result in re-doing the entire exercise which has reached finality, subsequent to the promotion of the candidates to the post of Postman from 2005 onwards. 14. As against this, the learned Senior Counsel Mr.O.V. Radhakrishnan contended that there was no question of any approval by the Screening Committee as the very appointment to the post of Postman from GDS is not a direct recruitment and the rules contemplate approval of the Screening Committee only when it is a direct recruitment. According to the learned Counsel, Rule/Column 9 is very clear that no educational qualification is required. According to him, Col. 9 indicates, the age and educational qualification prescribed for direct recruitment will not apply in the case of promotions and therefore, once appointments of these GDS candidates to the post of Postman is considered as a promotional appointment, then the question of age restriction would not come in the way. He further brought to our notice Colm.11(5) of the rules to support his arguments that W.P.(C) No.36443 of 2007 and conn. cases. **==> picture [30 x 10] intentionally omitted <==** only direct recruitment contemplated under this Column is through the nominees of the Employment Exchange only after complying Col. 11(1), 11(2) (i) and (ii) , 11(3) and 11(4). In other words, according to the learned Senior Counsel, Col.11(1) to (4) contemplate only promotion from the category of either Group D or GDS/Extra Departmental Agents/employees and Col.11(5) refers to direct recruitment through the nominees of Employment Exchange and other than this, direct recruitment through the Employment Exchange and none of the provisions refer to any direct recruitment as such. Therefore, it is argued that the stand of the petitioner department is erroneous and cannot be entertained. He also brought to our notice what exactly the recruitment would mean and according to him, 29 posts were vacant which were not filled up for want of approval of Screening committee, which was incorrect on the part of the department. When 29 posts became vacant, those posts were to be filled up in accordance with the procedure contemplated under Col.11, after taking into consideration other columns. Therefore, keeping the posts vacant for long has led to the problem in question. Hence he sought for dismissal of the W.P.(C) No.36443 of 2007 and conn. cases. **==> picture [30 x 10] intentionally omitted <==** petitions filed by the department. While arguing the case of seniority in O.P.(CAT) 1696/2011 with regard to Mr.Balachandran, the claim of the petitioner cannot be entertained as Mr.Balachandran has not challenged the same, who is stated as the aggrieved party by virtue of the orders of the CAT is the contention. 15. Then coming to the question of OBC, as the rules are silent with regard to reservation of posts so far as OBC, as all the posts have to be filled up by promotion from Col.11(1) to 11(4), the question of reservation of any post for OBC does not arise and even otherwise when the vacancies came to be notified, it was notified as unreserved. Therefore, according to the learned Senior Counsel, the Tribunal was justified in allowing all the applications after taking into consideration several facts and circumstances brought before the Tribunal and hence the question of reversing the orders of the Tribunal would not arise and sought for dismissal of the petitions. 16. We also heard Adv. Mr.Hariraj. (in W.P.(C)No. 22342 OF 2010) According to him, appointment from GDS to Postman, even if not considered as a promotion, it has to be W.P.(C) No.36443 of 2007 and conn. cases. **==> picture [30 x 10] intentionally omitted <==** considered as an 'upgradation'. Therefore, according to him, so far as seniority, age restriction is applicable. According to the learned Counsel, the private respondent in this case was eligible both under Col.11(2)(i) and 11(2)(ii), but because of the age restriction under Col.7(ii), he was denied the benefit. However, CAT considered his case under Col.11(2)(ii) opining that age restriction under Column 7 will not apply to Col.11(2)(ii) candidates. So far as the contention with regard to reservation of OBC candidates, according to him, as the appointments from GDS to Postman is neither direct recruitment nor promotion, reservation from OBC group was proper and therefore, the Tribunal was not justified in allowing the applications, so far as setting aside the candidature of the applicants from OBC. 17. The rules which are applicable, are Department of Posts (Postman, Village Postman and Mail Guards) Recruitment Rules of 1989. So far as Column 7, by virtue of an amendment brought in 1994, the upper age limit of Extra Departmental Agents was made as 50 years with five years relaxation for SC/ST candidates as on first July of the year in which the examination is held and he should have completed a minimum of W.P.(C) No.36443 of 2007 and conn. cases. ## -:15:- five years satisfactory service as on first January of the year in which the examination is to be held. ## 18. The relevant provisions which are applicable to the facts of the case are Column No.7(ii), which is extracted below: _XX XX XX_ _“(ii) 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.”_ ## 19. Column 11 is very relevant which reads as under: “ _1. 50% by promotion, failing which by Extra Departmental Agent, on the basis of their merit in the Departmental Examination._ _2. 50% by Extra Departmental Agents of the recruiting division or unit, in the following manner, namely:-_ _(i) 25% of the vacancies of Postman shall be filed up from amongst Extra Departmental Agents with a minimum of 15 years of service on the basis of their seniority failing which by the Extra Departmental Agents on the basis of departmental examination.;_ _(ii)25% from amongst Extra Departmental Agents on the basis of their merit in the Departmental Examination._ _3. If the vacancies remained unfilled by EDAs of the recruiting division, such vacancies may be filled by EDAs of the postal division falling in the zone of Regional Directors._ W.P.(C) No.36443 of 2007 and conn. cases. ## -:16:- _4. If the vacancies remained unfilled by EDAs of the recruiting units such vacancies may be filled by EDAs of the postal divisions located at the same station. Vacancies remaining unfilled will be thrown open to Extra Departmental Agents in the region._ _5. Any vacancy remaining unfilled shall be filled up by direct recruitment through the nominees of the Employment Exchange._ ” 20. Then, so far as Colum11 (2), it came to be introduced as 11(2)(i), 25% of the vacancies of Postman shall be filled up from among the Extra Departmental Agents with a minimum of 15 years' of service on the basis of their seniority, failing which by the Extra Departmental Agents on the basis of the departmental examination. Prior to this 1995 amendment, out of the vacancies 50% by way of promotion, failing which, Extra Departmental Agents on the basis of their merit in the departmental examination was provided. This refers to Group D post of postman. By amendment to Col.11(2)(i) the mandate of the departmental examination that 25% of the vacancies on the basis of seniority came to be removed and the condition was running seniority of 15 years' and by amendment, the minimum of 15 years' of service was the criterion on the basis of their W.P.(C) No.36443 of 2007 and conn. cases. **==> picture [30 x 10] intentionally omitted <==** seniority, failing which by the Extra Departmental Agents on the basis of the Departmental Examination and the balance 25% from among the Extra Departmental Agents on the basis of their merit in the Departmental Examination. Col.11(3) and (4) actually refers to how the unfilled vacancies of Extra Departmental Agents of a recruiting division could be filled up by zone or from one division to another division. 21. In none of the present matters, we are concerned with a situation covering Col.11(3) and (4). We are also not concerned with Col.11(5). We are only concerned with Col.11(1), 11(2) (i) and 11(2) (ii). The entire vacancies as of now is divided into two portions, i.e. 50% by promotion from Group D and if all the vacancies of 50% could not be made by promotion from Group D on the basis of their merit in the departmental examination, then the unfilled vacancies would go to Extra Departmental Agents on the basis of the rank list in the departmental examination. Then among the other 50%, 25% would go to the persons based on the seniority who need not take any departmental examination and for that 25%, if candidates are not sufficient for consideration to the post of W.P.(C) No.36443 of 2007 and conn. cases. **==> picture [30 x 10] intentionally omitted <==** Postman based on the seniority, the rest will again go to Extra Departmental Agents based on the merit in the rank list in the departmental examination, then the other 25% from among the Extra Departmental Agents based on the merit in the departmental examination. Under three columns of 11(1) and 11 (2), if for any reason the percentage of posts earmarked for a particular category are unfilled, it always go to the Extra Departmental Agents based on the merit in the departmental examination. If still any vacancies are available, from one recruiting division to another postal division is also contemplated and after exhausting that process, if the posts are still remain unfilled again from one postal division located in the same station to another postal division located in the circle. After exhausting the exercise contemplated under Col. 11(1) to (4), if any posts are vacant, then the question of direct recruitment from the nominees of Employment Exchange comes into play. Reading of Column 11(2) to (4), nowhere it refers to any direct recruitment as such. It only says by promotion so far as Group D and if candidates are not sufficient for promotion in Group D, then it goes to Extra Departmental Agents on the basis of merit in the W.P.(C) No.36443 of 2007 and conn. cases. **==> picture [30 x 10] intentionally omitted <==** examination. If the intention were to be by promotion only from Group D candidates then the unfilled from this category under Column 11(1) ought not to have been earmarked for Extra Departmental Agents based on their merit in the Departmental examination. 22. If Extra Departmental Agents under Col.11(1) can be called as promotees by taking examination, then Col.11 (2)(i) and 11(2)(ii) also have to be treated on par with Extra Departmental Agents referred to at Col.11(1). Even otherwise, in the absence of using any word as promotion, one has to understand what recruitment would mean as contemplated under Col.11(2)(i) and (ii). For this, the learned Senior Counsel Mr.O.V.Radhakrishnan refers to _**1994 Supl.(1) SCC 44**_ paragraph '6' _**(K. Narayanan vs. State of Karnataka),**_ which reads as under: “ _6. Article 309 of the Constitution empowers the appropriate Legislature to frame rules to regulate recruitment to public services and the post, 'Recruitment' according to the dictionary means 'enlist'. It is a comprehensive term and includes any method provided for inducting a person in public service. Appointment, selection, promotion, deputation are all well-known methods of recruitment. Even appointment by_ ## W.P.(C) No.36443 of 2007 and conn. cases. ## -:20:- _transfer is not unknown. But any rule framed is subject to other provisions of the Constitution. Therefore it has to be tested on rule of equality. Transfer is normally resorted in same cadre. But when it is made in a different and higher cadre it must not be violative of constitutional guarantee and the rule of fairness. Providing for appointment of a diploma holder from the cadre of Junior Engineer to Assistant Engineer from back date without any test or selection on eligibility only does not sound reasonable and fair. Why was it done is apparent from the following notings by the Secretary:_ _“The most important issue was regarding the date of transfer of the Junior Engineer acquiring graduate qualifications, the weightage of past service had to be taken into consideration. In the proposals submitted to the cabinet this crucial aspect was not outlined specifically and the impression that was created was that the transfer would take place with prospective effect. In such an event the weightage of previous service would have to be confined only up to date of graduation and this would not have been of any advantage to most of Junior Engineers who have acquired the degree qualification several years ago. Even if the weightage of past service after graduation and up to the date of appointment as Junior Engineers was given the transferees would not have gained any significant advantage in the matter of notional seniority. The Karnataka Graduate Engineers have strongly represented on this issue and have urged that their transfer to the Assistant Engineer's cadre should be with retrospective effect i.e., from the date they have acquired graduate qualification. In support of their arguments they have pointed out that even in Andhra Pradesh a similar step was taken in that the transfer was allowed with retrospective effect. The points raised by the Graduate Engineers Association have been examined and it is felt that their_ ## W.P.(C) No.36443 of 2007 and conn. cases. ## -:21:- _demand to have the transfer effected with retrospective effect has some justification in view of the long years of service rendered by the Junior Engineers before and after acquiring Graduate qualification. If this benefit is not give, the amendment to the C&R Rules allowing for their transfer would be of little use for many of the senior members of the Graduate Engineers Association who have been fighting for this change for many years. Therefore taking an overall sympathetic view it is proposed that we may allow for the transfer of Junior Engineers who acquired graduate qualifications with retrospective effect from the date of acquisition of such qualification subject to the availability of vacancies at that time in the Assistant Engineer's cadre. It is seen that the first batch of the in-service Junior Engineers took their graduate degree in 1976 and hence the notification amending the rules would have to be effective from January 1, 1976.”_ _Rules were thus bent and made retrospective as a sympathetic consideration as many Junior Engineers who were working since long would not have derived any benefit otherwise. May be true but if the extension of such benefit impinges upon the constitutional guarantee of equality then it cannot be upheld. And that does stand disturbed. Nothing further need be said. Nor it is necessary to pronounce on the validity of a rule which in the class of appointment by direct recruitment includes appointment by transfer resulting in entry of one class by competition or selection and other by acquisition of minimum qualification as the appellants did not challenge the rule of appointment by transfer but confined their claim to its operation retrospectively._ ” W.P.(C) No.36443 of 2007 and conn. cases. **==> picture [30 x 10] intentionally omitted <==** 23. A reading of paragraph 6 of the above judgment clearly indicates that the word 'recruitment', according to the dictionary means 'enlisting'. Their Lordships held that the word recruitment is a 'comprehensive term' and includes any method provided for inducting a person in public service. Therefore, the word recruitment taken into its ambit appointment, selection, promotion, deputation and sometimes, even transfers. So far as what exactly the promotion would mean, the learned Senior Counsel refers to paragraph 8 of the decision in _**State of Rajasthan vs. Fateh Chand Soni**_ [ **(1996)1 SCC 562** ] , which reads as under: _“8. The High Court, in our opinion, was not right in holding that promotion can only be to a higher post in the Service and appointment to a higher scale of an officer holding the same post does not constituted promotion. In the literal sense the word 'promote' means, 'advancement or preferment in honour, dignity, rank, or grade' (See Webster's Comprehensive Dictionary, International Edn. p.1009). 'Promotion' thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law also the expression 'promotion' has been understood in the wider_ W.P.(C) No.36443 of 2007 and conn. cases. **==> picture [30 x 10] intentionally omitted <==** _sense and it has been held that 'promotion' can be either to a higher pay scale or to a 'higher post' (See. Union of India v. S.S. Ranade. SCC at. p.468)”_ ## 24. He also refers to the decision reported in **[** _**Supdt. Of Post Offices vs. P.K. Rajamma**_ ( **1977)3 SCC 94** ] to understand the actual status or the nature of the post Extra Departmental Agents holds. In this case, Their Lordships held that the post of Extra Departmental Branch Post Masters, who are extra departmental delivery agents and Class IV employees, have to be held as civil post. In this case, the question was whether Article 311(2) of the Constitution of India would be applicable to Extra Departmental Agents as well. Their Lordships held that Extra Departmental Agents were holding civil posts under the Union of India and the orders terminating their service is governed by Article 311(2) of the Constitution of India. The learned Senior Counsel placing reference on these citations contended that though the word 'promotion' is not used either at Col.11(2) (i) or 11(2)(ii), the recruitment would include the word 'promotion'. Therefore, any kind of appointment either under Col.11(2)(i) or 11(2)(ii) would only mean, it is by way of W.P.(C) No.36443 of 2007 and conn. cases. **==> picture [30 x 10] intentionally omitted <==** promotion and it is nothing less or more than the promotion referred to under Col.11(1) of the above rule. 25. From the reading of the above judgments including **BSNL v. R.Santhakumari Velusamy** [ **2011(9) SCC** **510** ] relied upon by Mr.Hariraj in the case of promotion or even if the word 'upgradation' is used it would not be a promotion from one post to the other post. Therefore, if the word recruitment, appointment, or upgradation is used, it would only mean that from the post of GDS/EDA under Column No.11 (1) to (4) it is only a promotion to the post of Postman, a 'C' category post. It is not the case of any of the petitioners that GDS/EDA persons are equal to either 'Group D' or they are holding a post equivalent to 'Group C'. No doubt, from EDA and GDS cadre one can be temporarily accommodated with a direction to work either as a deliverer or a Postman or some other post higher than the Postman, but they all come under the category of 'GDS' and they can never be equivated either with Group C or Group D. In that view of the matter, if appointment to the post of Postman is from GDS category, which can only mean, they are promoted to the W.P.(C) No.36443 of 2007 and conn. cases. **==> picture [30 x 10] intentionally omitted <==** next higher grade as 'Postman in the regular post' and not on the basis of 'GDS holding a post of Postman'. 26. As already stated above, 25% under Column 11 (2) (i) would go to those GDS who qualify 15 years running seniority without an examination and the next 25% goes to those persons with a rank in the merit list of the departmental examination. In all the three categories i.e. 11(1), 11(2)(i) and 11(2)(ii), the unfilled posts ultimately would go to the persons on merit basis depending upon their ranking in the departmental test. In that view of the matter, 50% contemplated under 11(1) if exhausted by persons belonging to Group D, question of unfilled posts to the merit candidates of EDS would not come into existence at all. Then similarly 11(2)(i), shows if seniority candidates are not available, it would go to the merit candidates based upon their ranking. The very fact that these three categories are made would only go to show that representation is given to each Group depending upon the initial appointment whether Group D or GDS and also with reference to number of years they have put in as EDA/GDS. Therefore, as on the date of W.P.(C) No.36443 of 2007 and conn. cases. **==> picture [30 x 10] intentionally omitted <==** amendment in 1995, examination was exempted for those persons who have completed running service of 15 years. 27. The next question would be whether the age limit contemplated under Column 7(ii) would apply to the candidates falling under Column 11(2) (i). Just above Column No.9 it says whether age and educational qualifications prescribed for direct recruitment will apply in the case of promotion, the answer is “no”. Therefore, once the appointment from Column 11(1) and (2) is termed as promotion, question of age and educational qualifications would not be a bar so afar as these candidates are concerned. Hence, the contention of the Department that age bar contemplated under Column 7(ii) would come in the way of candidates available under Column No.11(2)(i) has to be rejected. 28. Then coming to the last contention of the department, it is entitled to reserve certain posts to OBC candidates, to say so, the department again goes back to the first argument that appointment is by direct recruitment and not by promotion. When once we hold that it is an appointment or W.P.(C) No.36443 of 2007 and conn. cases. **==> picture [30 x 10] intentionally omitted <==** recruitment by promotion, the question of any reservation for OBC candidates would not come into picture. 29. In that view of the matter, we are of the opinion, Tribunal was justified in saying that the department could not have issued any notification or Government Order indicating that certain posts are reserved for OBC candidates. As a matter of fact, in the initial stage, when the notification to fill up the posts of Postman came to be issued, there was a clear indication that “unreserved” against all the posts. Only by a separate order, the department issued directions saying certain posts were reserved for OBC. In the entire Column of these Rules at Column 11 nowhere indicates that reservation is available for the promotion against the promotion posts as well. In that view of the matter, we are of the opinion, the contention of the learned counsel for the petitioners that the department was justified in allocating certain posts to OBC candidates totally ignoring the seniority and merit in the ranking list, seniority so far as Column No.11(2) (i) and merit candidates as per ranking list in the departmental test cannot be accepted. In other words, what the department did was though the ranking of these OBC candidates was much below W.P.(C) No.36443 of 2007 and conn. cases. **==> picture [30 x 10] intentionally omitted <==** some of the applicants before the CAT, as they reserved the posts for OBC candidates, the less meritorious candidates were allocated against those posts, instead of giving preference to the candidates having a better rank than OBC candidates. 30. In view of the above discussion and reasoning, we uphold the view of the Tribunal that the appointment from GDS/EDA to the post of Postman is only by promotion and not direct recruitment, the age restriction under Column No.7(2) is not applicable to the GDS/EDA as their appointment to Postman is by way of promotion and similarly reservation against OBC is not permissible in view of no such procedure contemplated in the rule and also that they are by way of promotion and not direct recruitment. 31. Then coming to the promotions of the applicants who were not selected because of want of approval by the Screening Committee as well as the age restriction applied by the department, we make it clear that the benefit of this judgment will be extended only to those candidates who were applicants W.P.(C) No.36443 of 2007 and conn. cases. **==> picture [30 x 10] intentionally omitted <==** before CAT and who are the respondents in the present writ petitions. In view of the above opinion, all the petitions fail and accordingly dismissed. **Manjula Chellur, Ag. Chief Justice.** **P.R.Ramachandra Menon, Judge.** lk/ttb