Molly George v Union of India & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **TUESDAY, THE 17TH DAY OF NOVEMBER 2020 / 26TH KARTHIKA, 1942** **OP (CAT).No.25 OF 2018(Z)** **AGAINST THE ORDER IN OA 600/2016 DATED 19-12-2017 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER/APPLICANT IN OA:** **MOLLY GE0RGE AGED 56 YEARS, W/O.MATHEWS THOMAS, MULTI TASKING STAFF, KARIMANNOOR POST OFFICE, IDUKKI DIVISION-685581, RESIDING AT ERAMANGALATH HOUSE, KARIMANNOOR P.O., THODUPUZHA, IDUKKI DISTRICT-685581.** **BY ADVS. SRI.M.R.HARIRAJ SMT.G.BINDU SRI.M.V.BALAGOPAL SRI.P.A.KUMARAN SMT.M.K.LEELA SRI.K.RAJAGOPAL** ## **RESPONDENTS/RESPONDENTS IN O.A.:** **1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, DEPARTMENT OF POSTS, MINISTRY OF COMMUNICATIONS, NEW DELHI-110001.** **2 THE CHIEF POSTMASTER GENERAL KERALA CIRCLE, THIRUVANANTHAPURAM-695033.** - **3 SUPERINTENDENT OF POSTS IDUKKI DIVISION, THODUPUZHA-685581.** **4 LEELAMMA JOSEPH AGED 49 YEARS W/O.VARGHESE, WORKING AS POSTMAN, NEDUKANDAM, IDUKKI DIVISION, THODUPUZHA, RESIDING AT KUZHI PALLIL HOUSE, NEDUKANDAM, PIN-685553.** **R1 BY ASSISTANT SOLICITOR GENERAL R1-3 BY SRI.T.V.VINU, CGC** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 05-11-2020, THE COURT ON 17-11-2020 DELIVERED THE FOLLOWING:** O.P.(CAT)No.25/2018 2 ## **J U D G M E N T** Dated this the 17[th] day of November, 2020 ## **Gopinath, J** This original petition is filed challenging the order dated 19.12.2017 in OA No. 600 of 2016 on the file of the Central Administrative Tribunal, Ernakulam Bench. The petitioner who was the applicant and that original application had approached the Tribunal with the claim that she was entitled to be promoted as Multi-Tasking Staff (MTS) by ante-dating her promotion with reference to the date of occurrence of the vacancy. This claim was on the basis that since the persons who were promoted as MTS in 2008-2009 were found entitled to vacancies which arose during 2001 etc. by an order of the Tribunal which has since been upheld by this Court and by the Supreme Court. She also claimed that she was entitled to be considered for further promotion counting her service with effect from the date on which the vacancies had arisen. The Tribunal rejected the claim of the petitioner holding that the appointment of the petitioner was by direct recruitment (as held by the Supreme Court in _**Y.Najithamol & ors vs Saumya & ors**_ - Ext R.2 along with the reply statement of respondents O.P.(CAT)No.25/2018 3 before the Tribunal), the petitioner/applicant was not entitled to any relief. In other words, it was held that the person who got selection on the basis of direct recruitment could not claim that on the existence of earlier vacancies being shown they should be given an earlier date of appointment at least on notional basis. This order is under challenge before us. 2. Sri. M.R Hariraj, the learned counsel appearing for the petitioner would contend that several persons who were seniors of the petitioner have been found entitled to be adjusted against earlier vacancies and resultantly and on such an adjustment being made she would have got a chance to be promoted against vacancies in the year 2009. He would submit that the denial of such promotion with effect from an earlier date is arbitrary and illegal. He would therefore urge that we should set aside the order of the Tribunal in exercise of our jurisdiction under Article 227 of the Constitution of India. 3. Sri.T.V Vinu learned Central Government Counsel draws our attention to the _**Department of Posts Multi Tasking Staff Recruitment Rules, 2010**_ (Annexure R-3 before the Tribunal) to contend that the appointment of the petitioner, was under these Rules and that these Rules provide that the appointment as MTS would be on the O.P.(CAT)No.25/2018 4 basis of selection and it was not a promotion based merely on seniority. He would also submit, on the basis of instructions received by him, that the petitioner was subsequently promoted to the care of Postal Assistant with effect from 28.10.2019 and has thereafter retired from service as Postal Assistant, Karimmanoor on 28.2.2020. He has also placed reliance on the judgment of this Court in O.P.(CAT)No.317/2016 where this issue has been specifically considered. 4. We have examined the matter in detail. Though the learned counsel for the petitioner would vehemently urge that there are good grounds to set aside the order of the Tribunal in the exercise of our jurisdiction under Article 227 of the Constitution of India, we are afraid that there are practically no grounds to do so. It is not disputed before us that the petitioner/applicant was appointed as MTS in terms of Annexure R3. A perusal of those Rules shows that the appointment to the post of MTS from Gramin Dak Sevak is only through direct recruitment and not through any promotion. The concerned have to go through a selection process. The respondents are therefore right in contending that a person who obtained appointment through direct recruitment following a process of selection cannot thereafter claim that she must be adjusted against a O.P.(CAT)No.25/2018 5 previously existing vacancy. It may be true that seniors of the petitioner who were promoted in 2008-09 were found entitled to be adjusted against earlier vacancies. That does not mean that the petitioner would automatically get a right to be appointed against the vacancies which arose on account of such adjustment of her seniors against earlier vacancies. The earlier batch was recruited in terms of the then-existing Rules. The petitioner was selected in terms of Annexure R3 Rules. We are therefore in complete agreement with the view taken by the Tribunal. We are also of the view that the learned counsel for the respondents is right in placing reliance on the judgment of a Division Bench of this Court in O.P.(CAT)No.317/2016, wherein paragraph 8 it was held:- _“8. The learned counsel for the petitioner in O.P.(CAT)No.11 of 2011 contended that the decision in_ _**Najithamol's** case is inapplicable to the petitioner as he is working as MTS. As noticed hereinbefore, the nature of relief sought by the petitioner herein is also similar to the prayer of the other petitioners belonging to the category of postman. He too, wants virtually notional promotion from the date of occurrence of vacancy against which he was appointed alleging administrative delay as the reason for his delayed promotion. However, an analysis of the contentions based on factual position obtained would reveal that it is absolutely untenable. On applying the ratio of the decision in_ _**Najithamol's** case to the factual position regarding the status of the posts it could be established. As noticed hereinbefore, though GDS is a civil post, it does not form part of the regular service of the Postal Department. The petitioner herein was working as GDS and it is his precise case that while he was working as such based on LDC Examination conducted on 27.1.2013, he was appointed as MTS with effect from 8.2.2013. Annexure-A1 in Ext.P2 dated 7.2.2013 would reveal that the petitioner herein and another GDS were screened by the Departmental Screening_ O.P.(CAT)No.25/2018 6 _Committee and found eligible and allotted for appointment only as per said order dated 7.2.2013. The submissions of the parties including the official respondents would reveal that the post of MTS too, belongs to the regular service of the Postal Department and certainly, it is not a post belonging to the same class of service to which GDS belongs. Going by the decision in_ _**Najithmol's** case, promotion could happen only when the promotional post and the post from which promotion is effected form part of the same class of service. In such circumstances, in strict sense, the appoint (sic) of GDS and MTS also cannot be said to be a promotion and therefore, all the reasoning which we have given to repel the contentions of the other petitioners proprio vigore will apply to the case of the petitioner in O.P.(CAT)No.11 of 2017, as well._ We are in respectful agreement with the view taken by this Court in O.P.(CAT)No.319/2016. We also notice that the petitioner has subsequently been promoted as Postal Assistant with effect from 28. 2. 2019 and has also retired from service on 28.2.2020. 5. We, therefore, dismiss this original petition and confirm the order passed by the Tribunal. In the facts and circumstances of the case, we make no order as to costs. **Sd/-** acd **A.M.SHAFFIQUE JUDGE Sd/GOPINATH P. JUDGE** O.P.(CAT)No.25/2018 7 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 A TRUE COPY OF THE FINAL ORDER DATED 19/12/2017 IN O.A.NO.600/2016 ON THE FILE OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** - **EXHIBIT P2 A TRUE COPY OF THE ORIGINAL APPLICATIONS ALONG WITH ANNEXURES THERETO.** - **ANNEXURE A1 A TRUE COPY OF THE ORDER NO B2/1/RECTT DATED 30.3.2011** - **ANNEXURE A2 A TRUE COPY OF LETTER NO CPT/RTI/150 DATED 16/5/2012** - **ANNEXURE A3 A TRUE COP-Y OF THE FINAL ORDER DATED 15.9.2015 IN OA NO 1035/12** - **ANNEXURE A4 A TRUE COPY OF THE NOTIFICATION NO RECT 10.3.2014/ 1 DATED 17.6.2016 ISSUED BY THE 2ND RESPONDENT** - **ANNEXURE A5 A TRUE COP0Y OF THE DEPARTMENT OF POSTS (POSTAL ASSISTANTS/ SORTING ASSISTANTS) GROUP C NON-GAZETTED), RECRUITMENT RULES, 2011** - **EXHIBIT P3 A TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS IN OA NO 600/2016 ALONG WITH THE ANNEXURES THERETO** - **ANNEXURE R1 A TRUE COPY OF THE DOPT OM NO 22011/6/2013-ESTT(D) DATED 28.5.2014** - **EXHIBIT P4 A TRUE COPY OF THE MA NO 1172/2016 ALONG WITH ANNEXURES THERETO** - **ANNEXURE MA1 A TRUE COPY OF THE ORDER IN OA NO** O.P.(CAT)No.25/2018 8 - **555/2016 AND CONNECTED CASES DATED 8.9.2016 ALONG WITH THE LIST OF CANDIDATES** **ANNEXURE MA2 A TRUE COPY OF THE ORDER NO RECTT/10.3.2015-16 DATED 27.9.2016 ISSUED BY THE 2ND RESPONDENTS OFFICE** **ANNEXURE MA3 A TRUE COPY OF THE LETTER ST/2-1-1/2013 DATED 24.10.2016 ISSUED BY THE OFFICE OF THE POSTMASTER GENERAL CENTRAL REGION** - **EXHIBIT P5 A TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE RESPONDENTS IN OA 600/2016 ALONG WITH ITS ANNEXURES THERETO** - **ANNEXURE R2 A TRUE COPY OF THEE ORDER DATED 12.8.2016 OF HONOURABLE APEX COURT IN CIVIL APPEAL NO 90 OF 2015** **ANNEXURE R3 A TRUE COPY OF DEPARTMENT OF POSTS(MULTI TASKING STAFF0 RECRUITMENT RULES 2010** **ANNEXURE R4 A TRUE COPY OF EXTRACT OF GL, MF, OMF NO 1/1/2008-AC DATED 24.12.2008 EXHIBIT P6 A TRUE COPY OF THE JUDGMENT DATED 27.7.2016 IN OP(CAT0 207/2016 EXHIBIT P7 A TRUE COPY OF THE ORDER DATED 24.7.2017 IN SLP SLP(C) 11647/2017 OF THE HONOURABLE SUPREME COURT OF INDIA** **EXHIBIT P8 A TRUE COPY OF THE DEPARTMENT OF POSTS (GROUP D POSTS) RECRUITMENT RULES 2002**