OP (CAT) No. 147 of 2016 (Z)

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 31ST DAY OF MAY 2016/10TH JYAISHTA, 1938 **OP (CAT).No. 147 of 2016 (Z) -----------------------------** (AGAINST THE ORDER IN OA 180/2014 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 25-02-2016) PETITIONERS/RESPONDENTS 1 TO 5: ------------- 1. UNION OF INDIA REPRESENTED BY SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF COMMUNICATIONS & IT, DEPARTMENT OF POSTS, NEW DELHI. 2. THE CHIEF POSTMASTER GENERAL DEPARTMENT OF POSTS, KERALA CIRCLE, THIRUVANANTHAPURAM-695 033. 3. THE ASSISTANT DIRECTOR (ESTT. & RECTT) OFFICE OF THE CHIEF POSTMASTER GENERAL, KERALA CIRCLE, THIRUVANANTHAPURAM-695 033. 4. THE SENIOR SUPERINTENDENT OF POSTS KOTTAYAM DIVISION, KOTTAYAM-686 001. 5. THE ASSISTANT SUPERINTENDENT OF POST OFFICES KOTTAYAM EAST SUB DIVISION, PIN-686 001. BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENE RESPONDENT(S)/APPLICANT & 6TH RESPONDENT : ------------------------------------------ 1. NISHA K.JOY D/O. K.P.JOY, GRAMIN DAK SEVAK MAIL DELIVERER, POOVANTHURUTHU POST OFFICE, KOTTAYAM-12, RESIDING AT KARIKUMTHIL HOUSE, VAZHITHALA P.O., IDUKKI DISTRICT-685 583. 2. ASWATHI MOHANAN D/O. MOHANAN P.P., POSTAL ASSISTANT, KANNUR-670 001, RESIDING AT PUTHIYA PURAYIL, VELICHANKOL, PATTUVAM P.O., THALIPARAMBA, KANNUR-670 143. R1 BY SMT.REKHA VASUDEVAN THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 31-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 147 of 2016 (Z) ----------------------------- APPENDIX **PETITIONER(S)' EXHIBITS** **-----------------------** EXT.P1 COPY OF THE OA NO.180/00715/2014 DTD.1.9.2014, FILED BY THE 1ST RESPONDENT. EXT.P2 COPY OF THE REPLY STATEMENT IN OA NO.180/00715/2015 FILED BY THE PETITIONERS. EXT.P3 COPY OF THE ORDER IN OA NO.180/00715/2014 DTD.25.2.2016 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. RESPONDENT(S)' EXHIBITS ----------------------- /TRUE COPY/ P.S. TO JUDGE. ## **P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.** .............................................................................. **O.P.(CAT)No.147 OF 2016** ......................................................................... **Dated this the 31[st] May, 2016** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** The petitioners were respondents before the Tribunal. The challenge is against Ext.P3 order, whereby the right of the respondents to get selected to the post of Postal Assistant has been declared to be in terms of Annexure- A11 Recruitment Rules of the year 2002, as the vacancies sought to be filled up related to the years 2004-2010. 2. The crux of the case is that the vacancies were notified, as per Annexure-A7 notification dated 10.09.2012, by which time, new rules (Annexure A12-Department of Posts (Postal Assistants and Sorting Assistants) (Group C non-GAzetted ) Recruitment Rules, 2011) had come into existence and as such, the Tribunal was not justified in having directed the Department to appoint the applicants to the post of Postal Assistants, despite the lack of prescribed extent of merit (60%) to get selected to **O.P.(CAT)No.147 OF 2016** **2** the said posts in terms of Annexure- A12 Rules 3. Heard the learned Assistant Solicitor General appearing for the petitioners and the learned counsel for the first respondent. 4. The first respondent started service as a 'Gramin Dak Sevak-Mail Deliverer' on 15.01.2002. Her service was regularised on 13.05.2004 as per Annexure A4. The petitioners issued a notification in the year 2008-2009 inviting applications from the eligible candidates for appearing the departmental recruitment test, to be selected and appointed as Postal Assistants. The first respondent, though applied for the post could not succeed at that time, having failed to secure the minimum marks of 60% in accordance with Annexure A11 rules. In the meanwhile, some persons had approached the Tribunal by filing O.A.No.212 of 2006, pointing out that the prescribed extent of quota available to be filled up by “sports persons” were not earmarked and accordingly, a direction was sought for to set apart '8' vacancies and to appoint them. An interim order was passed by the Tribunal, giving a positive direction in this regard, which was **3** ## **O.P.(CAT)No.147 OF 2016** sought to be challenged by filing W.P.(C)No.14575 of 2007. After hearing both the sides, this Court disposed of the said writ petition, directing that applications had to be invited from different sources including the general public (open market)as well as from the department. A copy of the said verdict has been produced as Annexure A6 dated 21.05.2009. 5. Pursuant to Annexure-A6 verdict, Annexure-A7 notification was issued by the Department on 10.09.2012, calling for applications to fill up 32 vacancies of Postal Assistants/Sorting Assistants. It is pointed out that the said posts were earmarked to be filled up in the 'Sports Quota'. According to the first respondent, she was very much eligible to compete for the post of Postal Assistants in the Sports Quota and accordingly, she applied for the post. On evaluation of the credentials in the test, it was revealed that the first respondent could not secure the cut off mark (i.e. 60%) to get selected to the post of Postal Assistant, as per the terms of the Notification. Since the petitioner was not included in the select list for the post of 'Postal Assistant', she was accommodated only against the post of **4** ## **O.P.(CAT)No.147 OF 2016** 'Postman', which is on a lower pedestal. This made her feel aggrieved, who approached the Tribunal by filing O.A.No.180 of 2014 seeking for a declaration that vacancies having occurred for the period 2004 to 2010, i.e. prior to the commencement of 'new rules' vide Annexure A12, those vacancies had to be filled up as per the 'old rules', where there was no stipulation that the candidate ought to have obtained 60% marks. The claim was resisted by the respondents pointing out that Annexure A7 notification clearly stipulated a minimum of 60% marks and admittedly since the applicant could not secure 60% marks in the examination, her claim was not liable to be entertained. It was also pointed out that, by the time the notification was issued, Annexure-A12 rules had already come into existence. This was specifically referred to, as the minimum requirement in Annexure- A7 notification itself. Having applied for the post with open eyes, realising the fact that she had to secure 60% marks in the test and when she failed to secure such minimum extent, it was no more open to the applicant to have challenged the proceedings by filing O.A. It is also pointed out that the **5** ## **O.P.(CAT)No.147 OF 2016** notification issued by the Ministry was never sought to be challenged and hence the course of action was not liable to be assailed under any circumstance. 6. After hearing both the sides, the Tribunal observed that there was no dispute with regard to the occurrence of vacancies during the period from 2004 to 2010, which were sought to be filled up as per Annexure-A7. It was also not a matter of dispute that the 'new rules' (Annexure-A12) came into existence only w.e.f. 03.11.2011 and that no retrospective operation of the said rules was ever mentioned in the said rules. In the said circumstance, the vacancies which arose prior to the date of commencement of 'new rules' ought to have been filled up by applying Annexure-A11 rules of the year 2002. It was accordingly, that a declaration was given as sought for, thus finding the applicants as eligible to be appointed in the 'sports quota', applying the 'old rules' (Annexure- A11) and giving appropriate directions in this regard, which made the petitioners feel aggrieved and hence the challenge in this Original Petition. 7. The learned Assistant Solicitor General appearing for the **6** ## **O.P.(CAT)No.147 OF 2016** petitioners reiterates the submissions as contained in the reply statement and as projected before the Tribunal, contending that it was not at all correct or proper for the Tribunal to have made a declaration and in directing the department to appoint the applicants, applying the 'old rules' (Annexure A11). 8. The learned counsel for the first respondent points out that the present Original Petition itself is nothing but an abuse of the process, in so far as the legal position stands conceded by the petitioners in their reply statement filed before the Tribunal to the effect that the vacancies which arose prior to the commencement of 'new rules' had to be filled up only by applying the 'old rules'. Paragraph '14' of the reply statement is extracted for convenience of reference: _“It is settled legal position that the vacancies which were in existence prior to the date of coming into force of the new recruitment rules have to be filled up in accordance with the old recruitment rules. It is held so by the Hon'ble High court of Kerala in the decision in Mohanan vs. Director of Homeopathy reported in 2006(3) KLT 641. As such, the vacancies that existed prior to 27.01.2014 are to be filled up in accordance with the_ **7** ## **O.P.(CAT)No.147 OF 2016** _Recruitment Rules, 2011. Also law on the subject is settled in the case of :_ _1. Y.V. Rangaiah V.J. Sreenivasa Rao, 1983 3 SCC 2842, wherein the Apex Court has held that “The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules”._ _2. In P. Ganeshwar Rao and others vs. State of Andhra Pradesh and others AIR 1986 SC 2068, it was stated that the vacancies that occurred prior to the amendment of the Rules will have to be governed by the old rules and not by the amended rules._ _3. In Arjun Singh Rathore vs. B.N. Chaturvedi 2007 11 SCC 605, the Hon'ble Apex Court held as under: This Court has specifically laid that the vacancies which occurred prior to the amendment of the rules would be governed by the original rules and not by the amended rules. As a necessary corollary the vacancies that arose subsequent to the amendment of the rules are required to be filled in accordance with the law existing as on the date when the vacancies arose._ _It is therefore crystal clear that A-13 recruitment rules are not applicable to the applicant and that she is not eligible for any of the reliefs sought for and the O.A. is liable to be dismissed._ 9. On going through the nature of challenge raised in the O.P., it is seen that the attempt to challenge the order passed by **8** ## **O.P.(CAT)No.147 OF 2016** the Tribunal is virtually contrary to the pleadings raised by the petitioners in paragraph 14 of the reply statement, conceding the legal position. The relevant decisions rendered by the Apex Court in support of the said position is also given by the petitioners in their reply statement filed before the Tribunal. It was virtually accepting the said contention as to the legal position and the law declared by the Supreme Court as per the decisions referred to therein, that Ext.P3 order was passed by the Tribunal, granting the declaration and directing to have the applicants appointed in terms of the 'old rules'. 10. We find absolutely nothing wrong in the verdict passed by the Tribunal. The Department was not at all justified in clubbing all the vacancies under the 'sports quota' for the years from 2004 to 2010 together, to be filled up, by issuing AnnexureA7 notification, with reference to 'Annexure- A12 rules' which were brought into force after occurrence of the vacancies concerned. There is no retrospective operation for Annexure- A12 rules, which took its breath for the first time only from 03.11.2011. The vacancies which had occurred prior to the said **9** ## **O.P.(CAT)No.147 OF 2016** date had to be filled up by applying Annexure-A11 rules (old rules). In the above circumstances, the verdict passed by the Tribunal is perfectly within the four walls of law. Accordingly, interference is declined and the Original Petition stands dismissed. The direction given by the Tribunal shall be implemented within 'two months' from the date of receipt of a copy of this judgment. **P.R. RAMACHANDRA MENON, JUDGE** **ANIL K. NARENDRAN, JUDGE** lk