S. Nakulan v. The Postmaster, Kayamkulam H.O., Kayamkulam and Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU MONDAY, THE 19TH DAY OF SEPTEMBER 2016/28TH BHADRA, 1938 WP(C).No. 30871 of 2009 (S) ---------------------------- AGAINST THE ORDER/JUDGMENT IN OA 491/2008 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 28-08-2009 ## PETITIONER(S): ----------------- S.NAKULAN, PART TIME CONTINGENT EMPLOYEE, KAYAMKULAM H.O., KAYAMKULAM. BY ADVS.SRI.G.SASIDHARAN CHEMPAZHANTHIYIL SRI.S.VISHNU RESPONDENT(S): - ------------------- 1. THE POSTMASTER, KAYAMKULAM H.O., KAYAMKULAM-690 502. 2. THE SUPERINTENDENT OF POST OFFICES, MAVELIKKARA DIVISION, MAVELIKKARA. 3. UNION OF INDIA, REPRESENTED BY THE CHIEF POSTMASTER GENERAL,, KERALA CIRCLE, THIRUVANANTHAPURAM. R,R1-3 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASGI R1-R3 BY ADV. SRI.N.NAGARESH, ASGI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 30871 of 2009 (S) : 2 : ## **APPENDIX** ## PETITIONER'S EXHIBITS: |EXT.P1|:|TRUE COPY OF THE O.A. NO. 491/2008 FILED BEFORE THE| |---|---|---| |||HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL,| |||ERNAKULAM.| |EXT.P2|:|TRUE COPY OF THE INTERIM ORDER DATED 25.08.2008 IN| |||O.A. NO. 491/2008 OF THE HONOURABLE CENTRAL| |||ADMINISTRATIVE TRIBUNAL, ERNAKULAM.| |EXT.P3|:|TRUE COPY OF THE REPLY STATEMENT DATED 20.10.2008| |||FILED BY THE RESPONDENTS BEFORE THE CAT, ERNAKULAM| |||BENCH.| |EXT.P4|:|TRUE COPY OF REJOINDER DATED 22.03.2009 FILED BY THE| |||PETITIONER BEFORE THE CAT, ERNAKULAM BENCH.| |EXT.P5|:|TRUE COPY OF THE ORDER IN O.A. NO. 491/2008 DATED| |||28.08.2009 ISSUED BY THE CAT, ERNAKULAM BENCH.| |EXT.P6|:|TRUE COPY OF THE ORDER DATED 11.06.2013 IN O.A. NO.| |||545/2012 OF THE HON'BLE CENTRAL ADMINISTRATIVE| |||TRIBUNAL, ERNAKULAM.| |EXT.P7|:|TRUE COPY OF THE JUDGMENT DATED 27.01.2014 IN OP| |||(CAT) NO. 4501/2013 OF THE HON'BLE HIGH COURT OF| |||KERALA.| |EXT.P8|:|TRUE COPY OF THE JUDGMENT DATED 18.02.2014 IN O.P.| |||(CAT) NO. 1662/2012 OF THE HON'BLE HIGH COURT OF| |||KERALA.| |EXT.P9|:|TRUE COPY OF THE JUDGMENT DATED 31.01.2012 IN W.P.(C)| |||NO. 14560/2007 OF THE HON'BLE HIGH COURT OF KERALA.| |EXT.P10|:|TRUE COPY OF THE JUDGMENT DATED 05.07.2011 IN W.P.(C)| |||NO. 5719/2008 OF THE HON'BLE HIGH COURT OF KERALA.| |EXT.P11|:|TRUE COPY OF THE JUDGMENT DATED 17.10.2011 IN OP| |||(CAT) NO. 3332/2011 OF THE HON'BLE HIGH COURT OF| |||KERALA.| |EXT.P12|:|TRUE COPY OF THE DIRECTOR GENERAL POSTS LETTER NO.| |||45-24/88SPB-1 DATED 17.05.1989.| ## RESPONDENTS' EXHIBITS: EXT.R1 : TRUE COPY OF ORDER NO.CAT/5/09 DATED 04.11.2009. EXT.R2 : TRUE COPY OF LETTER NO.2-10/88 PE I DATED 04.02.1997. EXT.R3 : TRUE COPY OF LETTER NO.2-1/2002-PE I DATED 14.02.2002. //TRUE COPY// P.A. TO JUDGE rv ## P.R. RAMACHANDRA MENON & DAMA SESHADRI NAIDU, JJ. ------------------------------------------- W.P.(C). No. 30871 of 2009 -----------------------------------------Dated this the 19[th] day of September, 2016. ## JUDGMENT ## Dama Seshadri Naidu, J. The Department of Posts permits preferential treatment to its contingent employees in regular recruitment. After continuing on contingent basis for about 15 years, an employee claims preferential treatment. There occurred, however, a procedural defect in the contingent employee’s initial entry into service. Does that defect disentitle him to the benefit of preferential treatment? 2. The petitioner is a contingent employee; the respondents represent his employer. His claim for preferential treatment denied in a fresh recruitment for the post of Gramin Dak Sevak Mail Packer (GDS MP), Chowkidar, the petitioner filed O.A. No.491 of 2008 before the Central Administrative Tribunal (CAT), Ernakulam. He could not succeed: Through Order, dated 28[th] August 2009 (Ext.P5), the Tribunal dismissed his claim. Aggrieved, the employee filed this writ petition. 3. The facts in brief are that, having entered the respondents’ service in 2001 as a part-time contingent employee, the petitioner was engaged from May 2007 onwards as a Chowkidar on a stop-gap basis, though. It is evident from Annexure A1 order of appointment. In other W.P.(C.) No. 30871/2009 -2- words, from May, 2007 onwards, the petitioner has continued in dual capacity: as a part time contingent employee and as Chowkidar. 4. In May 2008, the post of GDS MP was notified through Annexure A7. Claiming the benefit under Annexure A2 scheme of preference formulated by the Department, the petitioner submitted Annexure A8 representation. When the representation was not considered, he moved the Tribunal in O.A. No. 491 of 2008. His plea negatived, the petitioner has approached this Court. 5. The learned counsel for the petitioner has submitted that Annexure A2 makes it explicit that a person working as a part-time contingent employee shall be entitled to preferential treatment. According to the learned counsel, the learned Tribunal and this Court have, with unfailing regularity, held in Annexures A4 and A5 orders and Exts.P6 to P11 judgments, besides Annexure A6 judgment, that the contingent employees shall be given preference. 6. The reliefs sought by the petitioner, contends the learned counsel, are two fold:(1) that the petitioner be given preferential treatment in terms of Annexure A2; and (2) that the second respondent should fill up group D vacancies under the 25% quota available to the casual labourers. 7. Adverting to the impugned order of CAT, the learned counsel has submitted that CAT has been swayed by the judgment in the Secretary, W.P.(C.) No. 30871/2009 -3- State of Karnataka and others v. Umadevi & others[1] . In elaboration, he has submitted that CAT has laid misplaced emphasis on the fact that the petitioner had not been initially sponsored by the Employment Exchange. So it held that the petitioner could claim no regularisation. 8. On regularasiation and the applicability of Umadevi’s ratio, the learned counsel has strenuously contended that the petitioner has never sought regularisation. According to him, the authorities ought to have considered the petitioner’s preferential claim before they could consider the claim of the candidates from the open category. According to him, in terms of Annexure A2, the authorities ought to have selected a meritorious candidate from the pool of the contingent employees—to the exclusion of the open category candidates. 9. The learned counsel concedes that the Tribunal has granted the second limb of the relief: the petitioner be considered under 25% quota. He has, nevertheless, submitted that at no point in time would the vacancies exceed three; therefore, the question of a contingent employee claiming any preference under 25% quota does not arise. Summing up his submissions, the learned counsel has urged this Court to allow the writ petition declaring that the petitioner should be considered for recruitment in terms of Annexure A2—preferentially. 10. The learned Assistant Solicitor General has, with equal 1 [2006] 4 SC 1 W.P.(C.) No. 30871/2009 -4- vehemence, has contended that the petitioner has been appointed only as a stop gap arrangement. So his claiming any preferential treatment is out of reckoning. The learned ASG has also contended that paragraph 4 of Annexure A2 is categoric that no person can be given preference unless he was, initially, sponsored by Employment Exchange. The Tribunal has, asserts the learned ASG, substantially granted the reliefs sought by the petitioner, nevertheless. 11. In elaboration, the learned ASG has submitted that the Tribunal has directed the authorities to consider the petitioner's application along with those of other candidates, however, without preferential treatment. It is in recognition of the petitioner’s right to be considered under 25% quota. Summing up his submissions, the learned ASG has urged this Court to dismiss the writ petition for, according to him, the reliefs sought by the petitioner have already been substantially granted by the Tribunal. 12. Heard the learned counsel for the petitioner and the learned Assistant Solicitor General of India, apart from perusing the record. 13. Indisputably, the petitioner entered the service in 2001 and has continued to this day. First, he was appointed a part-time contingent employee, and later as a Chowkidar on a stop-gap arrangement, though. Annexure A1 order of appointment reveals that the petitioner's appointment should be until a regular appointment was made. Indeed, W.P.(C.) No. 30871/2009 -5- there is sufficient force in the learned ASG’s contention that Annexure A2, heavily relied on by the petitioner, clarifies that a candidate seeking preferential treatment ought to have been sponsored by Employment Exchange. 14. Appealing as the submission is, on a closer scrutiny, we are afraid, it fails to pass the judicial muster. First, it is not the respondents’ case that the petitioner secured employment way back in 2001 by any foul means. Second, though Annexure A2 was issued in 1988, the Department blissfully allowed the petitioner to continue in the name of a stop-gap arrangement for many years. Third, the department has no case that at any point in time it has tried to have any candidate sponsored by the Employment Exchange. Finally, nor has it taken, at least within a reasonable time, any remedial steps to ensure that a person like the petitioner was disengaged having not been sponsored by the Employment Exchange. 15. From the affidavit filed by one of the respondent officials on 31[st] August 2016, we can gather the respondents’ assertions: that the petitioner is not a contingent employee; that he was engaged from 2001 till date as sweeper-cum-scavenger, in which capacity he has so far worked for 4501 days; that from 01.06.2007 he has been engaged as GDSMP (Chowkidar), in which capacity he has worked for 3332 days. 16. The affidavit, on further reading, reveals that from 25.08.2008 W.P.(C.) No. 30871/2009 -6- the petitioner has been continued as Chowkidar because of an interim order, dated 25.08.2008, in CAT OA No.491 of 2008. After the disposal of the OA, this Court in this writ petition issued another interim order, dated 30.10.2009, on the same lines as the Tribunal did. 17. We may now examine the corner-stone of the controversy: Annexure A2. The employer has acknowledged that majority of causal labourers with long service are left out with no prospect for their getting absorbed in Group D cadre. Remedially, the employer in Annexure A2 provides that casual labourers, whether full-time or part-time, may be given preference in the matter of recruitment to ED posts, provided they fulfill all the conditions and have put in a minimum service of one year. As to the conditions to be fulfilled, Annexure A2 mandates that a service of 240 days in a year may be reckoned as one year’s service. The other condition, on which the employer laid much emphasis, is this: It should be ensured that nominations are called for from Employment Exchange to fill up the vacancies of casual labourers, so that ultimately the casual labourers considered for ED vacancies have initially been sponsored by Employment Exchange. 18. True, the employee has continued, at least, since 2007, on the strength of interim judicial orders; equally true is that Umadevi has frowned on reckoning the length of service by including the period secured through W.P.(C.) No. 30871/2009 -7- court orders. Annexure A2 was issued in 1988; the employee was engaged in 2001; the essential features for preferential treatment are one-year service and sponsorship from Employment Exchange. 19. The employee has put in many years of service. He has not sought regularisation, but just preferential treatment: to be preferred visà-vis new candidates and to be considered on merits among similar candidates. We would have no hesitation to non-suit the employee had he sought regularisation of his service. He did not. He has undeniably earned vast experience in the department with a decade and half service and is eminently suited to be considered for the post notified in the lowest rungs of the organisation. His not getting initially sponsored by the Employment Exchange, in our view, is a lapse, if at all, committed by the employer. So, at this length of time, the employee’s continuation—which is definitely not at his behest—cannot be to his prejudice. 20. As seen from Annexures A4 and A5 orders and Exts.P6 to P11 judgments, besides Annexure A6 judgment, too, the Tribunal and this Court consistently have upheld on different occasions the claim of similarly situated persons. To a specific query whether the judgments and orders relied on by the petitioner—Annexures A5 to A7 and Exts.P6 to P11—have attained finality, the learned Assistant Solicitor General submitted that he is unsure. The fact, nevertheless, remains that the Department has placed no W.P.(C.) No. 30871/2009 -8- material, not even pleaded, that there is any challenge still maintained against the judicial findings on this issue. 21. Veering back to the ratio of Umadevi, we may have to observe that there is sufficient force in the contention of the learned counsel for the petitioner that the issue in Umadevi essentially turns upon the backdoor entry and the subsequent, inevitable regularisation at the expense of meritorious candidates—particularly, sans regular recruitment process. In the present instance, the petitioner has claimed no regularisation. All that he has sought is that the authorities should consider his preferential claim for appointment in a vacancy notified through Annexure A7 in terms of Annexure A2. Recruitment as in this case and regularisation as in Umadevi have nothing in common; their conflation, here, seems to have lead the Tribunal to conclude differently. 22. Barring the hurdle that the petitioner has not been sponsored by the Employment Exchange, we see no further impediment against the petitioner’s claiming the benefit under Annexure A2. As we have already addressed the issue at some length that the petitioner cannot be blamed for the latches, if any, by the officials, we hold that the Tribunal has erred in denying the employee the preferential treatment in terms of Annexure A2, which he is otherwise entitled to. 23. For the reasons mentioned above, we deem it appropriate to W.P.(C.) No. 30871/2009 -9- interfere with Annexure P5 Order of the learned Tribunal to the extent of its denying to the petitioner the benefit of Annexure A2. 24. As a result, apart from setting aside the judgment to the extent stated above, we direct the authorities to consider the petitioner' claim in terms of Annexure A2 as well as Annexures A5 to A7 and Exts.P6 to P11 judicial pronouncements, expeditiously, at any rate, within three months from the date of receipt of a copy of this judgment. With the above observations, the writ petition stands allowed. No order on costs. P.R. RAMACHANDRA MENON, JUDGE. DAMA SESHADRI NAIDU, JUDGE. Rv W.P.(C.) No. 30871/2009 -10-