Sindhu R. & Rajini S. v Union of India & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE A.M.BABU WEDNESDAY, THE 4TH DAY OF JULY 2018 / 13TH ASHADHA, 1940 OP (CAT).No. 121 of 2018 ----------------------------AGAINST THE ORDER/JUDGMENT IN OA 725/2014 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 28-09-2017 ## PETITIONER(S) - 1 SINDHU R., GRAMEEN DAK SEVAK (GDS), MAIL PACKER, EZHUCONE, KOLLAM - 691 505. - 2 RAJINI S., GRAMEEN DAK SEVAK (GDS), BRANCH POST MASTER, ASHTAMUDI, KOLLAM - 691 503. BY ADVS.SRI.N.S.DAYA SINDHU SHREE HARI SMT.S.PARVATHI (P-960) SMT.ARYA RAGHUNATH RESPONDENT(S): 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF POSTS, GOVERNMENT OF INDIA, NEW DELHI - 110001. 2. THE CHIEF POSTMASTER GENERAL, KERALA CIRCLE, TRIVANDRUM - 695 033. 3. THE SENIOR SUPERINTENDENT OF POST OFFICES, KOLLAM POSTAL DIVISION, KOLLAM - 691 001. BY ADV. SRI.T.V.VINU, CGC BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 04-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 121 of 2018 (Z) APPENDIX PETITIONER(S)' EXHIBITS - EXHIBIT P1: A TRUE COPY OF THE ORIGINAL APPLICATION NO. 725/2014 FILED BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM. - EXHIBIT P2: A TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS DATED 08.12.2014 BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P3: A TRUE COPY OF THE REJOINDER FILED BY THE PETITIONERS DATED 11.07.2017 BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM. - EXHIBIT P4 : A TRUE COPY OF THE ORDER DATED 28.09.2017 IN O.A.NO. 725/2014 FILED BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. RESPONDENTS' EXHIBITS:NIL ## **C.T. RAVIKUMAR & A.M.BABU, JJ.** ## **==========================** ## **O.P.(CAT). No.121 OF 2018** **==========================** Dated this the 4[th] day of July, 2018 ## **JUDGMENT** _Ravikumar, J._ This original petition is directed against order dated 28.09.2017 passed by the Central Administrative Tribunal, Ernakulam Bench in O.A.No.725 of 2014. The petitioners/applicants therein were Gramin Dak Sevaks (GDS). They have partaken in the departmental examination conducted on 20.12.2009 by the second respondent for appointment to the post of Postman from the GDS category. The result was published on 8.2.2010. They were declared as selected and sent for training. On completion of training, they were posted as Postman. Their probation was also declared. Later, they were issued with Annexure-A1 memo dated 8.05.2012 to show cause as to why their services as Postman should not be terminated owing to their failure to secure the minimum percentage of marks viz., 45%, in each **O.P.(CAT).121/2018** 2 paper in the departmental examination. Based on the subsequent developments pursuant to the issuance of Annexure-A1, the petitioners filed the abovementioned O.A. seeking the following reliefs:- - i) to set aside Annexure-A21 order No.VIG/23/HQ/180/2012. Pt III dated 3005-2014 issued by the 2nd respondent as far as the first applicant is concerned; - ii) to set aside Annexure-A22 order No.VIG/23/HQ/180/2012. Pt III dated 3005-2014 issued by the 2nd respondent as far as the second applicant is concerned; - iii) to issue an order or direction to the 3rd respondent to allow the applicants to continue as postman by extending the relaxation admissible to SC/ST candidates as per Annexure-A23 in respect of the three vacancies remaining unfilled for the year 2009; - iv) to issue an order or direction to the 3rd respondent to review Annexure-A14 and A15 orders of termination in the light of Annexure-A16 Government order and to retain the applicants as Postman. - v) to declare that the applicants are entitled to continue as postman as they have secured the eligible percentage of marks on getting the relaxation admissible to SC/ST **O.P.(CAT).121/2018** 3 candidates for the year 2009 where three vacancies are remaining unfilled for want of qualified hands as per the notification. It was taken up along with O.A.No.77/2015. As per the impugned order dated 28.9.2017, both the original applications were dismissed. The relevant portions of the impugned order dated 28.9.2017 are as follows:- 11. It is a well settled principle of law that no party shall be allowed to agitate a matter which they could have taken in a case filed by them earlier and the subsequent litigative endevour shall not be entertained by the court. The aforesaid legal principle has been enunciated with the twin objective of preventing the multiplicity of proceedings and also for ensuring that the decision once already taken on the issue is not upset by a subsequent proceeding. We are of the view that the principle of constructive _res judicata_ is applicable in these two cases because the applicants ought to have taken up the pleas raised in this OA in the earlier judicial proceedings undertaken by them in this Tribunal and also in the higher forum. 13.As the applicants had sufficient opportunity to raise the aforesaid grounds contentions in the earlier litigation, we feel that as per the policy of law including the principle of constructive _res judicata_ , the OAs are not to be entertained **O.P.(CAT).121/2018** 4 for the reliefs as prayed for. In the result, the OAs are dismissed. 2. The reason that constrained the Tribunal to dismiss O.A No.725/2014 by applying the principle of constructive res judicata is as follows:- Earlier, the petitioners herein filed OA No.394/2012 and 395/2012 before the Tribunal challenging Annexure A1 order. The said OAs were heard along with OA No.118/2012 filed by another aspirant for the post of Postman who had also appeared for the written examination along with the petitioners. OA Nos.394 & 395 of 2012 were dismissed. The Tribunal found that the petitioners herein had failed to secure minimum marks in one of the papers and therefore, ineligible to continue as Postman. The original petitions filed against the order in O.A.Nos. 394/2012 and 395/2012 viz., O.P.(CAT) Nos.4096 and 4087, of 2012 were dismissed by this Court as per judgment dated 11.12.2012. In fact, prior to the said judgment, the applicant in O.A No.118/2012, after an unsuccessful attempt to get reviewed the order in O.A No.118/2012, filed O.P.(CAT) No.997/2013. The facts that the original applications filed by the **O.P.(CAT).121/2018** 5 petitioners herein were dismissed by the Tribunal and the original petitions filed against those orders were also dismissed are not in dispute and in fact, they are indisputable. It is also the admitted position that even after suffering such adverse orders and judgments, the petitioner had allowed the said judgments to become final. Upon their failure in the challenge against Annexure A1 show cause notice, subsequent to those orders and judgments, they were terminated from the post of Postman. Annexures A14 and A15 orders in Ext.P1 are issued respectively to the first and second petitioners herein as a necessary inevitable consequence. In the said orders, it was made clear that they would be given posting as GDS. However, the petitioners, as a last ditch effort filed representations against those orders of termination from the post of Postman. The first petitioner filed Annexures-A17 and A18 (in Ext.P1) representations and the second petitioner filed Annexures-A19 and A20 (in Ext.P1) representations, in that regard. The second respondent rejected those representations as per Annexures- A21 and A22 orders. It is challenging those orders that the first and second petitioners jointly **O.P.(CAT).121/2018** 6 filed O.ANo.725/2014 which culminated in the impugned order dated 28.9.2017. Virtually, the applicants/petitioners herein filed the captioned original petition raising new contentions which were not raised on the previous round of litigation. The contention is that based on DoP & T OM No.36012/22/93-Estt (SCT) dated 22.10.2013, granting relaxation to the candidates belonging to OBCs in the civilian post and the services under Government of India is possible and permissible. That apart, it is contended that by virtue of DoP&T OM No.11012/7/97-Estt(A) dated 19.5.1993, the petitioners ought not to have been terminated without conducting a regular enquiry as prescribed under Rule 14 of the CCS (CCA) Rules. In short, the contention is that in the light of the aforesaid lapses or laches on the part of the authorities in not considering their claim for continuance based on the aforementioned office memorandums, the termination from the post of Postman is liable to be interfered with. Obviously, the Tribunal had declined to look into such contentions and ultimately dismissed the original applications by applying the principle of constructive res judicata. It is in such circumstances that the **O.P.(CAT).121/2018** 7 captioned original petition has been filed. 3. We have heard the learned counsel for the petitioners as also the learned Assistant Solicitor General appearing for the respondents. 4. The rival contentions would reveal certain undisputed and indisputed facts. Evidently, show cause notice was issued citing the reason that the petitioners had failed to secure the minimum prescribed marks in one of the papers in the departmental examination conducted for appointment to the post of Postman from the GDS category. The original applications challenging the same was dismissed by the Tribunal and they had unsuccessfully taken up the matter before this Court, as mentioned hereinbefore. It is also the admitted position that even after suffering judgment of dismissal in O.P.(CAT) Nos.4096 and 4097 of 2012 filed respectively against O.A.Nos.394 and 395 of 2012, they allowed the common judgment passed thereon to become final. In such circumstances, the question is whether the petitioners are justified in taking up the challenge again by raising new contentions or in other words, whether the Tribunal is correct in dismissing O.ANo.725/2014 based on the principles of **O.P.(CAT).121/2018** 8 constructive res judicata. 5. The applicability of the principles of res judicata in proceedings before the Administrative Tribunal is no more res integra. In fact, there is absolutely no case for the petitioners that it is inapplicable in proceedings before the Administrative Tribunal. The other contention of the petitioners is that having declared them as selected and subjecting them to undergo training and putting them on probation and declared their probation, the respondents are not justified in terminating their services as Postman and reverting them as GDS and at any rate, such orders terminating their services as Postman could not have been issued without conducting an enquiry as contemplated under Rule 14 of Central Civil Services (Classification, Control & Appeal) Rules for short (CCS (CCA) Rules. It is to be noted that all the aforesaid circumstances, except the orders of termination, were there when the petitioners and the others approached the Tribunal and later this Court, unsuccessfully, as mentioned hereinbefore. It is only when the verdict in those proceedings went against them that they were terminated from the **O.P.(CAT).121/2018** 9 post of Postman. The power of the official respondents to correct a mistake exercising the inherent power is a recognised one. In that context, it is only proper to refer to the decision of the Hon'ble Apex Court in **National Institute of Technology v. Dinakar and another [AIR 2015 SC 476]** . In this case, evidently, the fact that the petitioners had failed to secure the minimum marks in one of the papers cannot be disputed at this distance of time especially in the light of the common judgment dated 11.12.2012 in O.P.(CAT) Nos.4096/2012 and 4097/2012. It is an admitted position that the petitioners herein allowed the said judgment to become final. It is to be noted that Annexure A1 and similar order which were challenged earlier in O.A.No.394 & 395, of 2012 were issued requiring the petitioners to make representation, if any, against the proposal to terminate their services as postman due to irregular selection inasmuch as they had not secured the minimum qualifying mark of 45% in paper B in the departmental examination. Those O.As were dismissed by the Tribunal and it is against those orders that O.P.(CAT) Nos.4096/2012 and 4097/2012 were filed. As noticed hereinbefore, **O.P.(CAT).121/2018** 10 those original petitions filed by the petitioners herein were dismissed as per the common judgment dated 11.12.2012 by this Court. 6. In the context of the contentions, it is relevant to refer to paragraphs 6 onwards in the said judgment dated 11.12.2012 and they read as follows:- "6. As a matter of fact, it is not even the case of the petitioners that any of the respondents authorities had any intention to terminate the respondents on account of personal vengeance etc. As a matter of fact, applicant in O.ANo.118/2012 approached the court contending that he was not selected in spite of scoring 94 marks and more than 45% in each paper of Part B. The contention of that applicant was, these two petitioners had secured less than 45% and they actually failed in part B therefore, they were not even entitled for appointment. After verifying the records, the authorities noticed respondents 4 to 6 had failed to obtain 45 marks in Part B i.e. the respondents in O.A.No.118/2012. Therefore, their selection and appointment as postmen was held as highly illegal and incorrect, especially in the light of denying selection of the applicant in O.A.No.118/2012. This resulted in issuance of memo of termination to the present petitioners. It is not in dispute that petitioners got 20 marks in each paper so far as Part B is concerned as against required marks of 22.5. 7. The Central Administrative Tribunal, after going into all the facts rightly rejected the stand **O.P.(CAT).121/2018** 11 of the petitioners who contends that after a gap of two years detecting the errors should not lead in termination. If the initial appointment or the selection process was wrongly proceeded with and persons who were not qualified to be selected were selected, the appointment itself is not justifiable in the eye of law. If the very basis for selection is not in existence, no vested right is created in favour of the petitioners and even if some interest is created by appointing them that interest cannot continue eternally when the illegality persists. In that view of the matter, when the very genesis of selection is not in accordance with the procedure contemplated, no vested right vests with the petitioners to continue in service merely on the ground of successful training for a period of two years. We do not find any good ground to interfere with the reasoning of the Tribunal, accordingly these petitions are dismissed." In such circumstances, the petitioners cannot be permitted to challenge the termination from the post of Postman raising new grounds. That questions cannot be gone into without revisiting the earlier orders and judgments. This is evidently not permissible in law, in the circumstances obtained in this case. In such circumstances, we do not find any reason to hold that the Tribunal had committed an illegality in declining jurisdiction on the principle of constructive res **O.P.(CAT).121/2018** 12 judicata. In short, we do not find any reason to interfere with the impugned order in exercise of the judicial review. Consequently, the original petition fails and accordingly, it is dismissed. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/A.M.BABU (JUDGE)** **spc/** **O.P.(CAT).121/2018** 13 **O.P.(CAT).121/2018** 14