P. Sekharan v. Superintendent of Posts, Thiruvananthapuram South Post Division; Chief Postmaster General, Kerala Circle; Director General & Secretary, Department of Posts

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 13TH DAY OF MARCH 2017/22ND PHALGUNA, 1938 OP (CAT).No. 58 of 2017 () --------------------------AGAINST THE ORDER IN OA 588/2014 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 9.11.2016 PETITIONER/APPLICANT: --------------------------- P.SEKHARAN, AGED 63, S/O.PARAMESWARAN, RESIDING AT SUMERU, KOLLAMVILAKATHU VEEDU, NEAR GOVERNMENT HIGH SCHOOL, KULATHOOR, UCHAKADA.P.O., THIRUVANANTHAPURAM. ## BY ADV. SRI.S.V.PREMAKUMARAN NAIR SRI.R.T.PRADEEP RESPONDENTS/RESPONDENTS: ---------------------------------- 1. THE SUPERINTENDENT OF POST OFFICES THIRUVANANTHAPURAM SOUTH POSTAL DIVISION, THIRUVANANTHAPURAM 2. THE CHIEF POSTMASTER GENERAL - KERALA CIRCLE, THIRUVANANTHAPURAM-695033 3. THE DIRECTOR GENERAL & SECRETARY DEPARTMENT OF POSTS, DAK BHAVAN, NEWDELHI-110 001 ## R1 -R 3 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 13-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 58 of 2017 () --------------------------- ## APPENDIX ## PETITIONER'S EXHIBITS --------------------------- EXT.P1: TRUE COPY OF THE OA NO.180/99588/2014 DATED 19.9.2014 BEFORE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BRANCH. P2 TRUE COPY OF THE REPLY STATEMENT OF RESPONDENTS DATED 19.9.2014 P3 TRUE COPY OF REJOINDER DATED 23.11.2015 BY PETITIONER P4 TRUE COPY OF ADDITIONAL REPLY STATEMENT DATED 2.2.2016 BY RESPONDENTS P5 TRUE COPY OF ADDITTIONAL REPLY STATEMENT DATED 3.6.2015 P6 TRUE COPY OF M.A.NO.180/00/16 DATED 24.8.2016 P7 TRUE COPY OF ORDER DATED 9.11.2016 IN OA NO.180/00588/2014 RESPONDENTS' EXHIBITS : NIL ---------------------------- // TRUE COPY // TKS P.S. TO JUDGE ## **C.T.RAVIKUMAR & ANIL K. NARENDRAN, JJ.** ------------------------------- O.P.(CAT)No.58 of 2017 -------------------------------Dated 13[th] March, 2017 ## **JUDGMENT** ## **Ravikumar, J.** This original petition is filed against Ext.P7 order in O.A.No.588 of 2014 dated 9.11.2016 passed by the Central Administrative Tribunal, Ernakulam Bench. The petitioner herein was the applicant and the respondents herein were the respondents, before the Tribunal. The petitioner sought for the following reliefs before the Tribunal:- - “(1) Direct the respondents to consider appointing the applicant on a notional basis w.e.f. date of arisal (sic. the date of arising) of vacancy, against which he has been appointed as Postman as per Annexure A1. - (2) Direct the respondents to bring the applicant under the pension scheme in force prior to 1.1.2004 and grant all consequential benefits thereof. - (3) Any other further relief or order as this Hon'ble Tribunal may deem fit and proper to meet the ends of justice.” 2. The facts, shorn off details, required for the disposal of the caption original petition, are as hereunder:- O.P.(CAT)No.58/2017 2 While working as Gramin Dak Sevak (GDS) the petitioner was appointed as Postman on his passing the Departmental Examination for appointment to the post of Postman, as per AnnexureA1 dated 19.9.2005. The contention of the petitioner is that though the examination was conducted only on 22.5.2005 he was virtually appointed against the vacancies occurred in the post of Postman in the year 2003. As is evident from the reliefs sought for by the petitioner, as extracted hereinbefore, his prayer was to deem his appointment to have been made against any one of the vacancies occurred in 2003 so as to make him eligible and entitled to get the benefit of the old pension scheme viz., CCS (Pension) Rules, 1972. In this context, it is to be noted that in respect of persons who were appointed after 1.1.2004 the old pension scheme was not made applicable and in their case the New Pension Rules introduced with effect from 1.1.2004 alone would be applicable. Evidently, it was in the said circumstances that such a prayer was made. The nub of the contentions of the petitioner is that though he was actually appointed to the post of Postman only on 19.9.2005, pursuant to the examination conducted on 22.5.2005, taking note of the fact that the vacancies had occurred in the year 2003 and also the fact that the delay in the matter of conducting the examination alone had resulted in the belated filling O.P.(CAT)No.58/2017 3 up of such vacancies, such delay could not be permitted to recoil on him. It is contended that it is the delay occurred in the matter that adversely affected his right to get the benefits of old pension scheme. It is the further contention of the petitioner that in similar circumstances some of the similarly situated persons were given the said benefits by antedating their appointment to the post of Postman for the limited purpose of bringing them under the old pension scheme. Virtually, the petitioner seeks for the same benefit as has been granted to such similarly situated persons. Paragraphs 10 and 11 of the impugned order passed by the Tribunal would reveal that the said prayer of the petitioner was rejected by the Tribunal relying on the decision of the Hon'ble Apex Court in **Najithamol.Y.** v. **Soumya S.D. (2016 (4) KHC 280 (SC)).** It is aggrieved by the dismissal of the original application relying on the said decision of the Hon'ble Apex Court that the captioned original petition has been filed. 3. We have heard Sri.R.T.Pradeep, the learned counsel for the petitioner and Sri.N.Nagaresh, the learned Assistant Solicitor General of India appearing for the respondents. 4. It is evident from the contentions raised by the petitioner that if the prayer of the petitioner is to be allowed the appointment to O.P.(CAT)No.58/2017 4 the post of Postman from the category of GDS should be taken as a promotion at least for the limited purpose of granting the aforesaid prayers. The contention of the petitioner is that such appointment was deemed as promotion for the aforesaid purpose by the Tribunal in its earlier orders in O.A.Nos.237 of 2012 and 131 of 2013. However, the Tribunal declined to follow the said decision relying on the decision of the Hon'ble Apex Court in **Najithamol's** case (supra). According to the petitioner, the Tribunal went wrong in relying on the decision in **Najithamol's** case. 5. The sole question to be decided in this case is whether the Tribunal had gone wrong in relying on the decision in **Najithamol's** case (supra) for deciding the aforementioned original application. The question considered by the Hon'ble Apex Court in **Najithamol's** case is whether an appointment to the post of Postman from the post of GDS is a promotion or direct recruitment. In this context, it is also to be noted that the Apex Court took note of the fact that the Full Bench of the Tribunal had considered that question and had ultimately held that appointment to the post of Postman is by way of direct recruitment and not by way of promotion. It is also to be noted that subsequent to the decision of the Full Bench of the Tribunal a Division Bench of the Tribunal attempted to distinguish the same and held that for the limited O.P.(CAT)No.58/2017 5 purpose of considering the case before it the appointment to the post of Postman from GDS could be treated as promotion. Paragraph 11 of the decision in **Najithamol's** case (supra) would reveal that the Apex Court deprecated the said attempt from the part of the Division Bench. The Apex Court held as follows:- “The reasoning of the Tribunal cannot be sustained, as the Full Bench of the Tribunal was clearly adjudicating the broader question of whether the appointment of Extra Departmental Agents to the post of Postman is by way of direct recruitment or by way of promotion. The attempt to distinguish the ratio of the Full Bench of the Tribunal on such a superficial ground is akin to reading the decision of the Full Bench like a Statute, which cannot be sustained.” After considering all aspects the Apex Court held that the post of GDS though a civil post is not a post borne in the regular cadre of the Postal Department and therefore, appointment from the post of GDS to the post of Postman could not be taken as promotion and in fact, it is direct recruitment. The Apex Court further held that promotion to a post could happen only when the promotional post and the post being promoted from, are part of the same class of service. When it is held that GDS, though a civil post, is not borne in the cadre of postal department the only inevitable conclusion is that the appointment from the post of GDS to Postman cannot be said to be a promotion and it can O.P.(CAT)No.58/2017 6 only be a direct recruitment. When that be the exposition of law by the Hon'ble Apex Court, merely because the Tribunal on earlier occasions held the appointment from GDS to Postman as promotion, that cannot be a reason to grant the prayers of the petitioner after holding such appointment of the petitioner as promotion. In such circumstances, we do not find any reason to interfere with the order passed by the Tribunal, which was passed relying on the decision of the Hon'ble Apex Court. Hence, this original petition is liable to fail and accordingly, it is dismissed. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **ANIL K. NARENDRAN Judge** TKS