K.K. Pavithran 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 ANIL K.NARENDRAN TUESDAY, THE 30TH DAY OF AUGUST 2016/8TH BHADRA, 1938 **OP (CAT).No. 218 of 2016 () ----------------------------** AGAINST THE ORDER/JUDGMENT IN OA 180/000964/2013 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED PETITIONER(S)/RESPONDENTS IN OA: ------------------------------- 1. UNION OF INDIA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF COMMUNICATIONS (DEPARTMENT OF POSTS), NEW DELHI - 110 001. 2. THE CHIEF POST MASTER GENERAL KERALA CIRCLE, TRIVANDRUM -695 033. 3. THE SENIOR SUPERINTENDENT OF POST OFFICES CALICUT DIVISION, CALICUT - 673 003. BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENE RESPONDENT/APPLICANT: -------------- K.K. PAVITHRAN 53 YEARS, S/O. K.K.VENUGOPALAN, GRAMIN DAK SEVAK MAIL DELIVERER (PRESENTLY OFFICIATING AS DRIVER, CALICUT POSTAL DIVISION, CALICUT- 673 003) RESIDING AT VADAKKEPPATTU HOUSE, WEST HILL POST, CALICUT - 673 005. BY SRI.T.C.GOVINDA SWAMY THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 30-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 218 of 2016 () ---------------------------- ## APPENDIX |PETITIONER(S)' EXHIBITS| |---| |-----------------------| |P1 TRUE COPY OF THE OA NO. 964/2013 DT. 28.9.2013 FILED BY| |THE RESPONDENT BEFORE THE CENTRAL ADMINISTRATIVE| |TRIBUNAL, ERNAKULAM BENCH.| |P2 TRUE COPY OF THE REPLY STATEMENT DT. 06.1.2014 IN OA NO.| |180/964/2013, FILED BY PETITIONERS.| |P3 TRUE COPY OF THE REJOINDER DT. 04.3.2014 FILED BY THE| |RESPONDENT.| |P4 TRUE COPY OF THE ADDITIONAL REPLY STATMENT DT. 24.3.2015| |FILED BY THE PETITIONERS.| |P5 TRUE COPY OF THE MA NO. 116/2015 IN OA NO. 964/2013| |FILED BY THE RESPONDENT.| |P6 TRUE COPY OF THE REPLY STATEMENT IN MA NO. 116/2015 IN| |OA 964/2015 FILED BY THE PETITIONERS.| |P7 TRUE COPY OF ORDER DT. 18.2.2016 IN OA NO. 964/2013 OF| |THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.| |RESPONDENT(S)' EXHIBITS<br>NIL| |-----------------------| /TRUE COPY/ P.S. TO JUDGE. ## **P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.** .............................................................................. **O.P.(CAT)218 OF 2016** ......................................................................... **Dated this the 30[th] August , 2016** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** The respondents in O.A.No.180/00964/2013 filed before the Central Administrative Tribunal, Ernakulam are the petitioners herein. The grievance is against the verdict passed by the Tribunal in the said O.A. in so far as the petitioners have been directed to take a final decision as to the steps for conducting regular appointment in respect of the post of 'Driver' in the departments' vehicle and on such an event, to give preference to the applicant also granting the benefit of age relaxation, if necessary. The contention is that, as per the relevant recruitment rules, the course ordered to be pursued by the Tribunal extending preference to the respondent/applicant in the O.A. is not correct or sustainable and hence the challenge. 2. Heard the learned Asst. Solicitor General as well as the learned counsel appearing for the respondent. **2** ## **O.P.(CAT)218 OF 2016** 3. The undisputed factual position involved in this case is that the respondent/applicant was working as Gramin Dak Sevak Mail Deliverer (GDS MD) in the Kuruvattur Branch Office in Kozhikode from 15.05.1983. While continuing so, there occurred a vacancy in the post of Driver in the Mail Motor Service vehicle attached to Calicut division, pursuant to the long leave taken by the regular incumbent on medical reasons. This necessitated short term engagement and by virtue of the willingness expressed by the respondent/applicant and the submission that he was duly qualified to drive the vehicle concerned, having obtained the requisite licence as stipulated in the relevant recruitment rules, he was engaged on short spells; besides continuing in the post of GDSMD. 4. After several years of such service, the respondent/applicant approached the Tribunal by filing O.A. seeking for regularisation of his service as Driver. A detailed reply statement was filed from the part of the Department pointing out that the Department had not felt the necessity to engage a regular driver; more so in view of the fact that the **3** ## **O.P.(CAT)218 OF 2016** vacancy concerned had been resulted only because of the long leave availed by the regular incumbent for medical reasons. It was also brought to the notice of the Tribunal that as many as 'five' vehicles were owned by the Department, but almost all the vehicles were mostly under repair and were off the road. The particulars of the vehicles owned by the Department were also given before the Tribunal and it was contended that there was no vested right for the applicant to seek for the benefit of regularisation. The Tribunal considered the matter in the light of contentions made by the applicant and with reference to the benefit given to the applicant in O.A.No.709 of 2007 as per Annexure A1 verdict dated 24.02.2009. It was accordingly, that the O.A. was finalised directing the respondents in the O.A. to take a final decision as to whether they proposed to fill up the vacancy on a regular basis and if so, to extend preference to the applicant over others, if necessary, by providing the benefit of age relaxation, which is stated as per se wrong and unsustainable being contrary to the recruitment Rules and hence the challenge. 5. The learned Asst.Solicitor General submits that **4** ## **O.P.(CAT)218 OF 2016** Annexure R1 is a copy of the relevant recruitment rules. The relevant rule as it appears in Column No.11 with Note contained therein are reproduced below for convenience of reference: _Column.No.11: [In case of recruitment by promotion/deputation/transfer, grades from which promotion/deputation/transfer to be made.]_ _By transfer of persons holding Group 'C' and Group 'D' posts having 3 years regular service in the eligible cadre in the unit of recruitment and whose scale of pay is lower than that of Driver and possessing valid driving licence for light and heavy motor vehicles. Selection shall be made from amongst candidates possessing the above qualifications and licence on the basis of a driving test to assess their competency to drive light and heavy vehicles. Note: xxxxxx_ _Note 2: It no suitable persons are available in the unit of recruitment eligible persons working in other unit fr recruitment but within the same Telephone District or Telecommunication/Electrical Circle/Civil Circle shall be considered for recruitment by transfer, failing which by direct recruitment. “_ 6. Going by the said rule, 50% of the posts in question are filled up by 'Direct Recruitment', while the remaining 50% is to be filled up by 'Transfer' from eligible candidates of Group 'C' **5** ## **O.P.(CAT)218 OF 2016** and 'D'. For getting qualified under the scheme of Departmental quota of 50%, it is necessary that the person concerned should have 3 years' regular service either in Group 'C' or 'D'. The respondent/applicant being only a GDS employee, he is not serving the department under Group 'C' or Group 'D' in the regular stream and as such, he is outside the purview of consideration as per the relevant recruitment rules. However, a 'Note' is added to the said rule and it is pointed out that the reliance sought to be placed on 'Note 2', so as to make the applicant eligible to have the benefit thereunder is also not correct. 7. We find considerable force in the submission made by the learned Asst. Solicitor General as it only says that, if no suitable persons are available in the Unit of Recruitment , the eligible persons working in other units of recruitment, but within the same Telephone District or Telecommunication/Electrical Circle/Civil Circle could be considered for recruitment by Transfer, failing which it will go to the Direct Recruitment segment. After going through the rules, we find that the respondent/applicant is **6** ## **O.P.(CAT)218 OF 2016** not liable to be declared as eligible to put up a claim for regular appointment under the Departmental quota. It is seen that the claim was set up with reference to the letter dated **28.07.1992** . which was issued in the form of a clarification in the year 1992. The learned Asst. Solicitor General submits that it was the time when a Scheme was framed by the Department pursuant to the verdict passed by the Supreme Court as to the steps for regularisation of persons engaged for quite long. It was also at a point of time when the law was still to be declared as to the right for regularisation, which came to be finalised by the Supreme Court only much later as per the decision in _**2006 (4)**_ _**SCC 1 (Secretary, State of Karnataka and others vs. Umadevi (3)** )_ holding that there is no vested right for regularisation; however long, the casual/temporary engagement might be. The only benefit granted by the said verdict is to cause the persons having more than 10 years' of service to be considered as a one time measure, in the specified circumstances, as dealt with in paragraph 55 of the said verdict. It was made clear by the Apex Court that regularisation of **7** ## **O.P.(CAT)218 OF 2016** employees will be detrimental to the rights and interests of eligible persons who are standing in the queue awaiting regular recruitment. In view of the legal position as above, regularisation cannot be sought for and ordered as a matter of course. 8. The remaining issue is with regard to the benefit extended by the Tribunal for being considered as ordered in Annexure A1 verdict in O.A.No.709 of 2007. It was a case where a similarly situated person approached the Tribunal seeking for similar benefit . When selection proceedings were going on to fill up the vacancy on regular basis (unlike the position in the present case where there is no proposal to fill up the vacancy on a regular basis, it being only a leave vacancy availed for medical reasons), the claim to get regularisation as such was negated by the Tribunal. However, the O.A. was disposed of, directing the respondents to consider the candidature of the applicant as well, granting age relaxation. The operative portion of the said verdict as contained in paragraph 12 reads as follows: _“In this view of the matter, we are of the opinion that the_ **8** ## **O.P.(CAT)218 OF 2016** _O.A can be disposed of with direction to the respondents. Accordingly in the conspectus of the facts and circumstances of the case, we dispose of the O.A. directing the respondents to proceed with the selection and in the event of not finding a suitable Group D employee, consider appointment of the applicant to the post of Driver under the direct recruitment quota by granting age relaxation. With this observation, the O.A. is disposed of. There shall be no order as to costs.”_ It is brought to the notice of this Court by the learned counsel for the respondent that the said verdict has become final, in so far as the challenge raised by the Department against it by filing O.P.(CAT)No.2528 of 2011 did not turn to be fruitful and the O.P. was dismissed as per judgment dated 10.08.2011. 9. The learned Asst. Solicitor General submits that the Department does not have any objection in considering the case of the respondent/applicant as well, in similar lines as ordered in Annexure A1, granting the benefit of 'age relaxation', as and when steps are taken to fill up the vacancy on a regular basis. It is also pointed out that the Department does not have any objection in engaging him as Driver on short spells as and when **9** ## **O.P.(CAT)218 OF 2016** required, as now being done, with his lien as GDS MD. It is in the above background, that the scope of the verdict now passed (which is under challenge in this O.P.) is to be examined. The operative portion of the said verdict is extracted below: _“Applicant was being engaged in long leave/medical and other similar contingency. The fact that the applicant has served the respondents department as Driver on temporary basis in various spells is to be borne in mind while considering his claim. Hence we direct the respondents to assess the availability of road worthy vehicles (vehicles which are in running condition) and also the availability of the departmental Drivers in the department against such vehicles. In case the respondents decide to recruit departmental Drivers, the applicant can be given preference in the said recruitment provided there are no Group D and Group C persons eligible as per Recruitment Rules to be given preference for appointment. It is also directed that if required the applicant shall also be given relaxation with regard to the age provided he fulfills all other requirements for being appointed as a Driver. Respondents will take a decision in the matter within three months from the date of receipt of this order.”_ ## 10. Obviously, the direction now given by the Tribunal vide **10** ## **O.P.(CAT)218 OF 2016** Ext.P7 substantially varies or enlarges the benefit given to the similarly situated person in Annexure A1. In Annexure A1, when the benefit is confined to granting of 'age relaxation', in the instant case, apart from granting the benefit of age relaxation, it also orders granting of 'preference' to the applicant, which according to us is not correct or sustainable and requires interference; more so in view of the law declared by the Apex Court in **Umadevi's Case** (cited supra). The Tribunal having given the benefit of age relaxation in Annexure A1, which stands upheld by this Court as per the judgment dated in 10.08.2011 and in view of the submission made by the learned Asst. Solicitor General that the Department does not have any objection in granting the benefit to the said extent to the respondent/applicant as well, we make it clear that the benefit granted by the Tribunal as per Ext.P7 will stand varied and modified to the extent as given in Annexure A1. In other words, the petitioners/Department are free to engage the respondent/applicant as a Driver, if he is willing as and when necessary in respect of the leave vacancy, and if the Department **11** ## **O.P.(CAT)218 OF 2016** takes any decision to fill up the post on a regular basis, the candidature and credentials of the respondent/applicant shall also be considered granting 'age relaxation' to him, to appropriate extent. The direction given by the Tribunal to give 'preference' to the respondent/applicant stands set aside and the verdict passed by the Tribunal stands varied to the said extent. The Original Petition is disposed of. **P.R. RAMACHANDRA MENON, JUDGE** **ANIL K. NARENDRAN, JUDGE** lk