P.S. Padmakumar v. The Chief Postmaster General, Kerala Circle & Union of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **TUESDAY, THE 13TH DAY OF MARCH 2012/23RD PHALGUNA 1933** ## **OP (CAT).No. 724 of 2012 (Z)** **---------------------------OA.654/2010 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. ..................** ## **PETITIONER(S):** **-----------------------** **P.S.PADMAKUMAR, GRAMIN DAK SEVAK BRANCH POST MASTER, PARANDODE. P.O., THIRUVANANTHAPURAM.** ## **BY ADV. SRI.VISHNU S.CHEMPAZHANTHIYIL.** **RESPONDENT(S): --------------------------** **1. THE CHIEF POSTMASTER GENERAL, KERALA CIRCLE, THIRUVANANTHAPURAM-695 001.** **2. UNION OF INDIA,** **REPRESENTED BY THE DIRECTOR GENERAL, DEPARTMENT OF POSTS, NEW DELHI-110 084.** **BY ADV. SRI.P.PARAMESWARAN NAIR, ASG OF INDIA. BY ADV. SRI.T.SANJAY, CGC.** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 13-03-2012, ALONG WITH OP (CAT).No. 722 OF 2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** **OP (CAT).No. 724 of 2012** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXT.P1 COPY OF THE O.A. NO.654/2010 FILED BY THE PETITIONER BEFORE THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P2 COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS. EXT.P3 COPY OF THE REJOINDER FILED BY THE PETITIONER. EXT.P4 COPY OF THE HEARING NOTE SUBMITTED BY COUNSEL FOR APPLICANT IN O.A. NO.654/2010. EXT.P5 COPY OF THE ORDER DATED 09/11/2011 IN O.A. NO.654/2010 OF THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** ## **RESPONDENT'S EXHIBITS:NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **rs.** ## **THOTTATHIL B. RADHAKRISHNAN & C.T.RAVIKUMAR, JJ.** ---------------------------------------O.P.(CAT)Nos.724 & 822 of 2012 ---------------------------------------Dated this the 13[th] day of March, 2012 ## **JUDGMENT** ## **Thottathil B.Radhakrishnan, J.** These two matters are filed by two Gramin Dak Sevaks (GDS) who aspire to enter the category of Group D posts, which at the relevant time stood governed by Department of Posts (Group D posts) Recruitment Rules, 2002, for short the `Rules', issued under Article 309 of the Constitution of India, in supersession of the earlier Rules of 1970. 2. The category of Group D posts, going by the schedule to the Rules, provide three modes of recruitment. The last among them is direct recruitment. The first is to conduct a test to determine the working ability of those in the feeder category for assessing the suitability to hold the post. It is submitted that with passage of time, the conducting of test has been done away with. 75% of the vacancies remaining unfilled after such test would be filled from among GDS of the recruiting division or unit concerned and 25% of the remaining vacancies will go for recruitment from among casual labourers etc. The method of recruitment of the 75% from the GDS is by selection-cum-seniority. The concept of selection appears to have been totally watered down even by O.P.(CAT)Nos.724 & 822 of 2012 2 the doing away of the test noted above. By now, neither the department nor the GDS argue for the position that there has to be an evaluation by selection or that seniority is to be considered only on the basis of those who come out successful on selection. Essentially, the mode is to go by the rule of seniority subject to the authority of the establishment to weed out the unfit. 3. The Rules of 2002 provides age limit of 18-25 years for direct recruitment. In the normal course of things, no age limit could be prescribed for consideration for promotion. We say this more particularly because, the appointment is to Group D category and not to any specialist post with any anticipated progression in service, to more effectively contribute to the needs of an establishment, either technically or otherwise. The Rules not providing for any age limit for recruitment to Group D posts from GDS, the petitioners rely on a provision in a Departmental Communication issued on 8.12.2004 by the Assistant Director General to all Principal Chief Post Masters General, that the age limit of 50 years for GDS in terms of Government's letter dated 28.8.1990 is still valid. We wonder how such a view could have been taken at all. As already noted, the Rules of 2002 are issued under Article 309 of the Constitution and it came into force with its publication in the official Gazette on 23.1.2002. The GDS having been treated as a O.P.(CAT)Nos.724 & 822 of 2012 3 homogeneous lot for the purpose of being considered as a feeder category for recruitment of 75% of the posts of GDS, in terms of the statutory rules framed under Article 309 of the Constitution, there was no room for the executive to tinker with such consideration in the statutory rule and classify the GDS on the basis of any age differentiation. That would become an unauthorised classification, de hors the statutory rule framed under Article 309 of the Constitution. We also find no rationale or legitimate basis for the establishment to do it through the Director General of Posts or the Chief Post Master General of each State because any relaxation in the Rules could be done only by the Government of India, even going by Rule 7 of the Rules which authorises the Central Government to relax any of the provisions of the Rules with respect to any class or category of persons, if it is of the opinion that it is necessary or expedient to do so. Such power to relax having been kept with the Central Government itself while issuing the rules under Article 309 of the Constitution, we find absolutely no room, either for the Director General or for any other officer of the Postal Department, to classify the GDS on the basis of age. 4. Noticing the aforesaid constitutional and legal format in which the questions arise for decision, we may note that at one point of O.P.(CAT)Nos.724 & 822 of 2012 4 time the Department stood stern to say that none above the age of 50 years from among GDS could be treated for appointment to the Group D posts. The stand appears to be that such appointment is not by promotion. Whatever be the acrobatics or nomenclature, the fact of the matter remains that the Rules provided for direct recruitment. It is also not appointment by transfer as contemplated in service law. The Central Administrative Tribunal and this Court in the earlier round of litigations came to the definite finding that the movement of GDS to the category of Group D posts is essentially by promotion. Obviously, the petitioners before us, who were the applicants in the earlier round and petitioners before this Court, had by the time crossed the age of 50 years, though they were before the Tribunal before they attained the age of 50 years and were therefore ordered to be considered though they have passed the age of 50 years. But, taking the cue from the interpretation given by this Court to hold that the method of recruitment from among GDS to the Group D posts is essentially by promotion, the Department took the stand that the age limit for GDS to be considered for promotion to the category of Group D posts would be 60 years. 5. The petitioners now appear to be aggrieved by the aforesaid stand because, on ground reality, many ahead of them in the O.P.(CAT)Nos.724 & 822 of 2012 5 category of GDS, by virtue of age and also length of service, may steal a march in the matter of promotion to the category of Group D posts. This may create heart burn, but, the question is whether there is any legal right vested in the petitioners to challenge the situation. 6. Fixing 60 years for GDS to move to the category of Group D posts is nothing but simply leaving the issue of age open. We say this because the age up to which the GDS can work is 60 years. Therefore, it only amounts to saying that any GDS in the service would be treated and considered because the Group D posts can continue only up to 60 years of age. In this view of the matter, we cannot but say that there is no fixation of age limit in the real sense. Any person among the GDS who is within the age limit to continue as a Group D staff could be considered for promotion to the category of Group D staff. Therefore, an identifiable and reasonable yardstick of classification following the decision in **D.S.Nakara** v. **Union of India** (AIR 1983 SC 130) need not be searched for in the case in hand. Even if we do that, we would come to the same conclusion. This is obviously because no GDS after 60 years can enter service as a Group D staff because a Group D staff has to retire at the age of 60 years. 7. Having considered the aforesaid view of the matter, we O.P.(CAT)Nos.724 & 822 of 2012 6 need to answer the argument on behalf of the petitioners. Their learned counsel argued that the Director General of Posts, who is also the Secretary to the Department of Posts, having issued the clarificatory order that age limit for GDS would continue at 50 years following the 1999 decision, the Chief Post Master General of Kerala lacked authority to peg it up to 60 years of age. We have already found that neither the Director General of Posts nor the Chief Post Master General has any role in the matter because the issue stands covered by the statutory rule issued under Article 309 of the Constitution on 23.1.2002, wherein the entire GDS has been treated as a homogeneous lot for being reckoned as the feeder category for appointment towards 75% of posts in the Group D posts. The next argument on behalf of the petitioners is that the earlier round of litigations, essentially, handed down binding inter- parte judgments, in so far as the Department and the petitioners are concerned, and the direction contained therein that the petitioners should be considered notwithstanding that they had crossed 50 years of age ought to have been given effect to and the petitioners appointed. This argument is also fortified further by the submission that the Tribunal had in earlier round inter partes, including the Director General of Posts on the array of parties, held that 50 years is the age limit that had to apply. For one thing, having gone through the order of the Tribunal in O.A.No.228 of 2008, we find that the issues O.P.(CAT)Nos.724 & 822 of 2012 7 that arose for decision in that matter revolved only on the manner in which the options have to be approached, based on the cut off date, treating 50 years of age as the prescribed cut off. The sustainability or the rationale of fixing 50 years as the cut off was never the subject matter of that Original Application. There was no finding in law that 50 years has necessarily to be the cut off. The said order also does not indicate that the Tribunal had given its seal of approval to 50 years being the cut off. At any rate, the judgment of this Court in the earlier round had left the establishment to re-craft its decision in relation to the age limit. Having regard to the interpretation given by us on the basis of the constitutional status of the recruitment rules in terms of Article 309 of the Constitution, we need not dwell deeper into that aspect because that is of insignificance, having regard to the findings above. 8. Notwithstanding all the aforesaid, we notice that none among those who had crossed the age of 50 years but are yet to reach the age of 60 years and who would be available in the field of choice, going by the Rules that now stands, is a party to these writ petitions or in the Original Application before the Tribunal from which these matters arise. O.P.(CAT)Nos.724 & 822 of 2012 8 9. Both sides tell us that by 2010 new statutory rules have displaced the 2002 recruitment rules. We are not concerned with the effect of such rules because the cases in hand are being decided only with reference to the 2002 rules framed under Article 309 of the Constitution. For the aforesaid reasons, these original petitions fail and they are dismissed. No costs. Sd/- **THOTTATHIL B. RADHAKRISHNAN Judge** **Sd/C.T.RAVIKUMAR Judge** TKS/13.3.2012