Sumesh P. and A.R. Prakashiny v Union of India and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH WEDNESDAY, THE 18TH DAY OF JANUARY 2017/28TH POUSHA 1938 OP (CAT).No. 317 of 2016 (Z) ----------------------------AGAINST THE ORDER IN OA 620/2016 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, DATED 22-11-2016 PETITIONER(S): ------------- 1. SUMESH P, S/O LATE E.PRABHAKARAN NAIR, AGED 40 YEARS, PULLAT HOUSE, PADUR- KAVASSERI POST, PALAKKAD 678- 543 (POSTMAN, NURANI POST) 2. A.R. PRAKASHINY, D/O. RAMAKRISHNAN, AGED 33 YEARS, CHENNAKODE HOUSE, NOCHULLY POST, KOYALMANNAM, PALAKKAD- 678 702 (POSTMAN, KUTHANUR POST). BY ADVS.SMT.RAJI T.BHASKAR SMT.R.SEEMA RESPONDENT(S): -------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT DEPARTMENT OF POSTS, MINISTRY OF COMMUNICATIONS, NEW DELHI-110001, GOVT. OF INDIA 2. CHIEF POSTMASTER GENERAL, KERALA CIRCLE, THIRUVANANTHAPURAM-695033 3. POSTMASTER GENERAL, NORTHERN REGION, KOZHIKODE-673011 4. SENIOR SUPERINTENDENT OF POST OFFICES, PALAKKAD DIVISION-678001 R1-R4 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 18-01-2017, ALONG WITH OPCAT.325/2016 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## OP (CAT).No. 317 of 2016 (Z) ----------------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS: ----------------------- EXHIBIT P1: TRUE COPY OF THE ORDER IN OA 620/2016 DATED 22-11-2016 BY THE CAT, ERNAKULAM BENCH. EXHIBIT P2: TRUE COPY OF THE ORDER NO. B1/LGO-2015-16 OF THE 4TH RESPONDENT DATED 14-07-2016. EXHIBIT P3: TRUE COPY OF THE OA NO 620/2016 WITH ANNEXURES. EXHIBIT P4: TRUE COPY OF MA 841/2016 IN OA 620/16 WITH ANNEXURES. EXHIBIT P5: TRUE COPY OF INTERIM ORDER DATED 26-07-2016 IN MA 841/2016 IN OA 620/2016 EXHIBIT P6: TRUE COPY OF MA 1164/2016 IN OA 620/2016 WITH ANNEXURES. EXHIBIT P7: TRUE COPY OFTHE INTERIM ORDER DATED 28-10-2016 IN MA 1164/2016 IN OA 620/2016. EXHIBIT P7(A): TRUE COPY OF THE CERTIFICATE ISSUED BY THE TRAINER WCTC, PALAKKAD DATED 11-11-2016 EXHIBIT P8: REPLYT STATEMENT FILED BY THE RESPONDENTS 1-4 WITH ANNEXURES. EXHIBIT P9: TRUE COPY OF THE COMMUNICATION NO.RECTT./10-3/2015-16 DATED 22.12.2016 OF THE 2ND RESPONDENT. RESPONDENT(S)' EXHIBITS:NIL ----------------------- //TRUE COPY// P.A.TO JUDGE ## **“C.R”** ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** **========================== O.P. ( CAT). Nos.317, 325, 327, 328, 329 & 331 OF 2016, 5, 6, 7, 8, 11, 19 & 22 OF 2017 ==========================** Dated this the 18[th] day of January, 2017 ## **JUDGMENT** _Ravikumar, J._ This bunch of original petitions arising from a common order passed by the Central Administrative Tribunal, Ernakulam Bench dated 22.11.2016 in a batch of of original applications carries a seminal question of importance. The petitioners herein were the applicants in one or other of the said original applications. All of them are working as Postmen/Multi Tasking Staff (MTS) in the Department of Posts. In the case of petitioners who are working as Postmen, they moved the original applications mainly seeking a direction to the respondent authorities to give them notional **O.P.(CAT).317/2016 & conn.** 2 promotion as Postman from the date of occurrence of vacancies against which they were given appointment as Postman for the purpose of appearing for the examination for promotion as Postal Assistant/Sorting Assistant scheduled to be held on 31.7.2016 or any deferred date. Evidently, to achieve the very same purpose, a further prayer for extension of the benefits of the order of the Tribunal in O.A.No.586/2012 on the ground of being similarly situated to the applicants therein was sought for. In the case of petitioner in O.P. (CAT).No.11/2017 who is working in the cadre of MTS he too, sought for notional promotion as MTS from the date of occurrence of vacancy against which he was appointed as MTS for the purpose of appearing in the examination for promotion as Postal Assistant/Sorting Assistant, relying on the order of the Tribunal in O.A.No.586/2012 and connected matters. In some O.As, instead of using the expression 'notional promotion', 'notional service' was used. Essentially they made such prayers contending that their selection and appointment got delayed solely due to administrative reasons despite the existence of vacancies in the post of Postman/MTS. In such **O.P.(CAT).317/2016 & conn.** 3 circumstances according to them, their promotion to the post of Postman/MTS is bound to be ante dated so as to enable them to satisfy the prescription regarding experience for promotion to the post of Postal Assistant/Sorting Assistant. The petitioners virtually relied on the decisions of the Tribunal in the common order dated 30.10.2012 in O.A.No.586, 618, 633, 635, 649, 650, 655, 660, 667, 701, 711, 737, 738, 751, 752, 766, 773, 780, 798 and 802 of 2012 and the common order dated 21.9.2011 in O.A.No.849, 848, 841, 803 and 801 of 2010 passed under similar situations. Directions were issued to the respondent authorities to grant notional promotion to the applicants therein, for the very same purposes. Virtually, the petitioners herein sought for extension of the benefit of the said decisions for the aforesaid purposes as they are also similarly situated. The respondent authorities and party respondents resisted the said contentions and ultimately after hearing the rival contentions and considering the decision of the Hon'ble Apex Court in **Najithamol Y. and others v. Soumya S.D and others [(2016) 4 KHC 280],** the Tribunal dismissed all the original applications filed by the petitioners except **O.P.(CAT).317/2016 & conn.** 4 O.A.No.575/2016. It was dismissed only in respect of applicant Nos.1 and 2 and in respect of the third applicant, it was virtually disposed of. It is in the said circumstances that the captioned original petitions were filed challenging the common order passed by the Tribunal. 2. Heard learned counsel on both sides. 3. The petitioners were all originally appointed as Gramin Dak Sevaks (for short 'GDS' only). The old recruitment rules relating Postman and Mail Guard viz., the Department of Posts (Postman and Mail Guard) Recruitment Rules, 2010 were amended in the year 2012 as per the Department of Posts (Postman and Mail Guard) Recruitment (Amendment) Rules, 2012 and it came into effect on 28.6.2012. While working as GDS, they were selected and appointed either as Postman or as MTS in accordance with the amended rules on different dates. In fact, the petitioner in O.P.(CAT) No.11/2017 was appointed as MTS and the others were appointed as Postmen. While so, vacancies arose in the post of Postal Assistant/Sorting Assistant. **O.P.(CAT).317/2016 & conn.** 5 50% of the vacancies were set apart for GDS to be filled up based on limited departmental competitive examination for Lower Grade officials (for short 'LDC Examination' only). To earn eligibility for appearing in the said examination, going by the relevant rules, a minimum of service of five years as MTS and three years as Postman, was required. Notification dated 17.6.2016 was issued inviting application from eligible candidates and the following eligibility criteria had been prescribed thereunder:- - 1). Postman/Mail Guard who has rendered 3 years of regular service in the grade as on 01.04.2015. (Should be in regular service on or before 01.04.2012 in the cadre). - 2). Multi Taking Staff who has rendered 5 years of regular service in the grade as on 01.04.2015. (should be in regular service on or before 01.04.2010 in the cadre.) - 3). The official against whom the punishment is current or disciplinary action is pending/contemplated is not eligible to apply. 4. Virtually, the petitioners moved the Tribunal to redress the grievance regarding the eligibility criteria prescribed thereunder with respect to the required minimum length of regular service as Postman/ **O.P.(CAT).317/2016 & conn.** 6 MTS, as on 1.4.2015. In otherwords, going by the notification, a Postman should have been in regular service on or before 1.4.2012 and an MTS should have been in regular service as MTS on or before 1.04.2010, to earn eligibility for appearing in the LDC Examination. Obviously, the petitioners did not have the said prescribed length of regular service as on the relevant cut off date viz., on 1.4.2015 fixed as per notification dated 17.6.2016 in their respective cadres. The said notification is produced as Annexure-A4 in Ext.P1 in O.P.(CAT). No.331/2016. 5. The nub of the contentions of the petitioners is that they were deprived the opportunity to acquire the prescribed length of regular service, as mentioned above, solely due to administrative delay occurred in the matter of conducting selection and consequential appointment to the post of Postman/MTS and therefore, it could not and should not recoil on them. According to them, but for the administrative delay, they could have easily completed the prescribed regular service as on the cut-off date. It was in such circumstances **O.P.(CAT).317/2016 & conn.** 7 and raising such contentions that they filed the original applications seeking the aforesaid reliefs. To sustain the claim for notional promotion to the post of Postman/MTS so as to enable them to acquire eligibility in regard to the requirements of regular service of 3years/5 years, as the case may be, for appearing in the examination for promotion to the post of Postal Assistant/Sorting Assistants the petitioners relied on Annexures-A1 and A2, in O.P.(CAT). No.331/2016 which are orders of the Tribunal passed in similar situations at the instance of similarly situated persons. The learned counsel appearing for the petitioners further submitted that though Annexures-A1 and A2 were challenged by the respondent authorities before this Court, those original petitions were dismissed. The learned counsel for the petitioners further submitted that a perusal of the impugned common order would reveal that the original applications came to be dismissed on the misconception of the decision of the Hon'ble Apex Court in **Najithamol** 's case (supra). It is contended that the question whether the appointment to the post of Postman is a direct recruitment was not at all a matter in issue to be **O.P.(CAT).317/2016 & conn.** 8 considered in the original applications from which the captioned original petitions arose inasmuch as the main prayer of the petitioners/the applicants was only a direction to grant notional promotion to the post of Postman/MTS with reference to the occurrence of vacancies in the post of Postman/MTS so as to enable them to satisfy the prescribed regular service for appearing in the LDC Examination, in terms of the notification dated 17.6.2016. In short, according to the petitioners, the question whether the method of appointment to the post of Postman/MTS is by way of promotion or direct recruitment is immaterial in the context of the reliefs sought for by them. It is their case that the LDC Examination was not conducted by the Department in the year 2010 despite existence of vacancies in the cadre of Postman and MTS and it was conducted only on 6.1.2013 and therefore, the administrative delay in conducting the LDC Examination shall not be permitted to recoil on them. The learned counsel for the petitioners submitted that in such circumstances, the Tribunal went wrong in relying on **Najithamol** 's case and declining the relief sought for and instead in the light of **O.P.(CAT).317/2016 & conn.** 9 Annexures-A1 and A2 in Ext.P1 in O.P.(CAT). 331/2016 which got confirmance by judgments of this Court, the prayers of the petitioners ought to have been granted. The learned counsel for the respondent authorities and the party respondents in unison submitted that the contention raised on behalf of the petitioners that the dictum laid down in **Najithamol** 's case is immaterial cannot be sustained and according to them it is very much relevant for deciding the tenability or otherwise of the claims and contentions of the petitioners. They would further contend that when the relief of granting notional promotion to the posts of Postman is sought for the question how they had reached the said posts, is very relevant and in that view of the matter, the decision in **Najithamol** 's case assumes relevance. 6. We have already adverted to the nature of the contentions and also of the releifs sought for, by the petitioners/claimants. For considering the question whether the decision of the Apex Court in **Najithamol** 's case is relevant for a proper consideration of the original petitions and also to look into the correctness or otherwise of **O.P.(CAT).317/2016 & conn.** 10 the common order passed by the Tribunal, it is only apropos to look into the question as to what exactly is the dictum in **Najithamol** 's case. **Najithamol** 's case (supra) arose from the common judgment passed by this Court dated 20.12.2011 in O.P.(CAT).No.1095/2011 and connected matters germinated from a common order passed by the Central Administrative Tribunal, Ernakulam. As per the said common order, the Tribunal held that the method of appointment from GDS/EDA to the post of Postman is, promotion and not direct recruitment and therefore, the age restriction under column No.7(2) of the Department of Posts (Postman/Village Postman and Mail Guards) Recruitment Rules 1989 as well as reservation against OBC category are not applicable for such promotion. Evidently, the said common order of the Tribunal was confirmed by this Court as per judgment in O.P.(CAT).No.1095/2011 and connected cases. It was the challenge against the said common order and common judgment that ultimately culminated in the decision in **Najithamol** 's case. The Apex Court held that appointment of GDS to Postman is direct recruitment and not promotion. **O.P.(CAT).317/2016 & conn.** 11 7. A careful scanning of the said decision would reveal that the question whether appointment to the post of Postman from GDS or Extra Departmental Agents was considered in detail by the Hon'ble Apex Court. It was held that promotion to any particular post could happen only when the promotional post and the post from which promotion is effected form part of the same class of service. On careful consideration of all the relevant provisions regulating the recruitment it was further held that though GDS is a civil post, it is not a part of the regular service of the Postal Department, after referring to its earlier decision in **Union of India v. Kameswar Prasad [(1997) 11 SCC 650]** . Further it was found that as Postman is a group 'C' post, only Group 'D' post could be considered as its feeder category. The learned counsel for the petitioners drew our attention to the fact that now there are no Group D post in the Postal Department and in fact, those posts were brought to class 'C' with common designation of Multi Tasking Staff (MTS) The said development is absolutely immaterial for considering the tenability of the petitioners' contentions **O.P.(CAT).317/2016 & conn.** 12 and claims for the simple reason that petitioners' got no case (in fact, they could not have a case) that GDS was included as a category belonging to the erstwhile Group 'D' posts. In troth, GDS still continues as a post not belonging to the regular service of the Postal Department. Thus, it is obvious that the Apex Court declared that the nature of appointment to the post of Postman in the Postal Department as direct recruitment and rejected the contention of similarly situated persons that it is promotion. When that be the exposition of law by the Apex Court in **Najithamol** 's case, the question is whether the relief sought by the petitioners seeking notional promotion to the post of Postman or MTS could be granted especially after the said decision. In the light of clear enunciation of law on that aspect, petitioners cannot be heard to claim or contend that they were promoted from GDS to the cadre of Postman. When the post of Postman in the postal department is not a promotional post of GDS which, though a civil post, does not form part of the regular service of the postal department, how can the petitioners claim for notional promotion as Postman from the date of occurrence of vacancies in that post, **O.P.(CAT).317/2016 & conn.** 13 irrespective of the purpose for which such a claim is made. The learned counsel for the petitioners attempted to canvass the position that the said decision was rendered in a different situation and taking note of the relief sought for in these cases, the position that it is not promotion is irrelevant and the decision in Annexures-A1 and A2 in Ext.P1 in O.P.(CAT) 331/2016 which got confirmance by the judgment of this Court ought to be followed. We are afraid, the said contention cannot be countenanced. After the judgment in **Najithamol** 's case, this Court cannot treat the nature of appointment to the post of Postman as direct recruitment for one purpose and as promotion for another purpose. In fact, a scrutiny of the judgment in **Najithamol** 's case itself would resolve the said issue. In this context, it is to be noted that in the orders which were confirmed by this Court in OP(CAT) No.1095/2011 and connected matters that led to the decision in **Najithamol** 's case, a Division Bench of the Tribunal distinguished the order of the Full Bench of the Tribunal passed in OA.No.807/1999 dated 3.11.1999. The Full Bench of the Tribunal in the said O.A held that appointment of EDA to the post of Postman was **O.P.(CAT).317/2016 & conn.** 14 by way of direct recruitment and not by way of promotion. The Tribunal distinguished the said decision on the ground that the question before the Full Bench was in respect of the filling up of 25% of total vacancies notified for the post of Postman which were to be filled on the basis of seniority and thus pertaining to Column 11(2) (i) of the Recruitment Rules whereas the said **Division** of Tribunal was called upon to consider filling up of 25% of the total vacancies which were to be filled up based on merits in the departmental examination falling under column 11(2) (i) of the Recruitment Rules. Holding such a view, the Tribunal while rendering the orders which culminated in **Najithamol** 's case held that the decision of its Full Bench in O.A 807/1999 is inapplicable and for the purpose of relief sought for, the appointment of EDA to Postman could be considered only by way of promotion and not by direct recruitment. A bare perusal of the decision of **Najithamol** ' case would reveal that the Apex Court virtually deprecated the said attempt from the part of the Division Bench of the Tribunal. It was held that the said reasoning of the Tribunal could not be sustained as the Full bench of the Tribunal **O.P.(CAT).317/2016 & conn.** 15 clearly adjudicated the proper question as to whether the appointment of EDA to the post of Postman is by way of direct recruitment or by way of promotion and held it as by way of direct recruitment. It was held that the attempt to distinguish the ratio of the decision of Full Bench of the Tribunal on such superficial ground is akin to reading the decision of the Full Bench like a statute which should not be sustained. When that be the decision of the Apex Court, we have no hesitation to hold that the attempt on the part of the petitioners to canvass the position that appointment GDS to Postman should not be taken as direct recruitment whereas it could be taken as promotion as they claimed only a notional promotion to satisfy the prescription of length of service, for appearing in LDC Examination cannot be sustained. That apart, how can the petitioner contend that this Court should ignore the change of position of law subsequent to AnnexuresA1 and A2, in Ext.P1 in O.P.(CAT) No.331/2016 which were confirmed by this Court, by the pronouncement of the decision in **Najithamol** 's case (supra) and despite the change in the position of law, should decide the matter in view of the position prior to **O.P.(CAT).317/2016 & conn.** 16 **Najithamol** 's case. This cannot be done not only because of rule of precedence but also, due to the mandate under Article 141 of the Constitution of India. When once the Apex Court held that appointment of GDS to the post of Postman is direct recruitment and not promotion, the said declaration and the dictum laid down by the Apex Court have to be strictly adhered to irrespective of the purpose for which it is sought to be considered as promotion. No benefits could be granted since the decision in **Najithamol** 's case if granting of such benefits would directly or indirectly go against the position settled by the Hon'ble Apex Court. If the appointment of GDS to Postman is direct recruitment where is the question of granting notional promotion when the original method of appointment is not by promotion. An indirect moulding of the relief as one seeking to grant the benefit of notional service from the date of occurrence of vacancies in the post of postman against which they were appointed, also will not and cannot save the situation for the petitioners. In short, we are of the considered view that in the contextual situation and the factual backdrop, the decision in **Najithamol** 's case has much **O.P.(CAT).317/2016 & conn.** 17 relevance as regards the issues involved in the original application and the Tribunal had very rightly relied on the decision of **Najithamol** 's case to dispose of the original applications. Furthermore, in view of our discussion, it has to be held that while considering the original applications, the Tribunal had very correctly applied the ratio in **Najithamol** 's case. 8. The learned counsel for the petitioner in O.P.(CAT).No.11 of 2011 contended that the decision in **Najithamol** 's case is inapplicable to the petitioner as he is working as MTS. As noticed hereinbefore, the nature of relief sought by the petitioner herein is also similar to the prayer of the other petitioners belonging to the category of postman. He too, wants virtually notional promotion from the date of occurrence of vacancy against which he was appointed alleging administrative delay as the reason for his delayed promotion. However, an analysis of the contentions based on factual position obtained would reveal that it is absolutely untenable. On applying the ratio of the decision in **Najithamol** 's case to the factual position **O.P.(CAT).317/2016 & conn.** 18 regarding the status of the posts it could be established. As noticed hereinbefore, though GDS is a civil post, it does not form part of the regular service of the Postal Department. The petitioner herein was working as GDS and it is his precise case that while he was working as such based on LDC Examination conducted on 27.1.2013, he was appointed as MTS with effect from 8.2.2013. Annexure-A1 in Ext.P2 dated 7.2.2013 would reveal that the petitioner herein and another GDS were screened by the Departmental Screening Committee and found eligible and alloted for appointment only as per said order dated 7.2.2013. The submissions of the parties including the official respondents would reveal that the post of MTS too, belongs to the regular service of the Postal Department and certainly, it is not a post belonging to the same class of service to which GDS belongs. Going by the decision in **Najithamol** 's case, promotion could happen only when the promotional post and the post from which promotion is effected form part of the same class of service. In such circumstances, in strict sense, the appoint of GDS as MTS also cannot be said to be a promotion and therefore, all the reasoning which we have given to **O.P.(CAT).317/2016 & conn.** 19 repel the contentions of the other petitioners proprio vigore will apply to the case of the petitioner in O.P.(CAT).No.11 of 2017, as well. 9. Now, we will deal with the common contention as to whether the petitioners could contend that they are entitled to get reckoned the service in the respective post of Postman/MTS with effect from the date of occurrence of vacancies against which they were so appointed on direct recruitment. The question is whether a candidate eligible to get appointment by way of direct recruitment against a post could claim that he got a vested right to get appointed with effect from the date of occurrence of vacancy against which he was appointed on his selection because of his eligibility to be considered for direct recruitment on the date of occurrence of vacancy and that the selection got delayed due to administrative reasons. We have already found that all the petitioners were appointed as Postman/MTS based on LDC Examination. In otherwords, it is evident that it is not purely on their seniority that they were given such appointment and that all of them were directly recruited to their present posts. While considering the **O.P.(CAT).317/2016 & conn.** 20 tenability of the said contention, the following decisions assumes relevance. In the decision in **T.N. Administrative Service Officers Assn. Union of India** ( **2000) 5 SCC 728,** the Apex Court considered such a question in a different context. The Apex Court held that even if vacancies exist, it is open to the authority concerned to decide how many appointments should be made. Simply because a candidate is eligible for selection, it did not confer on him any vested right for getting appointment. Virtually the said position was restated by the Apex Court in **Vinodan T. v. University of Calicut** ( **2002) 4 SCC 726.** It is a well settled position in service jurisprudence that even if there is vacancy, the State is not bound to fill up vacancy and there is no corresponding right vested in an eligible employee to demand that such posts be filled up. This is because the decision to fill up a vacancy or not vests with an employer and for good reasons he could decide not to fill up such posts. In the contextual situation, a decision of the Apex Court in **Suraj Parkash Gupta and others v. State of Jammu and Kashmir (2000) 7 SCC 561** also assumes relevance. In the said case, a contention was raised by the direct recruits, **O.P.(CAT).317/2016 & conn.** 21 respondents therein that they are entitled to get the date of appointment of direct recruitment antedated from the date of occurrence of vacancy in the direct recruitment quota though on that date they were not actually directly recruited. In fact, such contention was raised to canvass the position that promotees who were occupying the quota for direct recruitment should be pushed down. The said contention was repelled by the Apex Court in paragraph 80. The Apex Court held thus:- “80.This contention, in our view, cannot be accepted. The reason as to why this argument is wrong is that in Service Jurisprudence, a direct recruit can claim seniority only from the date of his regular appointment. He cannot claim seniority from a date when he was not born in the service. This principle is well settled. In N.K.Chauhan v. State of Gujarat, [1977] 1 SCC 308 (at p.321) Krishna Iyer, J. stated: “later direct recruit cannot claim deemed dates of appointment for seniority with effect from the time when direct recruitment vacancy arose. Seniority will depend upon length of service.” Again, in A. Janardhana v. Union of India [1983] 2 SCR 936, it was held that a later direct recruit cannot claim seniority from a date **O.P.(CAT).317/2016 & conn.** 22 before his birth in the service or when he was in school or college. Similarly it was pointed out in A.N.Pathak v. Secretary to the Government, [1987] Suppl. SCC 763 (at p.767) that slots cannot be kept reserved for the direct recruits for retrospective appointments”. 10. The learned counsel for the petitioners, then attempted to distinguish the decisions contending that such a view was taken by the Apex Court as they claimed seniority. Be it for the purpose of seniority or the purpose of reckoning the prescription of length of service, the question is whether a direct recruit could claim any such relief in respect of a period when he was not actually born in service. In the light of the ratio of the aforesaid, the answer must be in the negative. In otherwords, a direct recruit could not claim for antedating of his appointment to any date on which he was not born in service for any such purposes. There is no case for the petitioners that they were in the regular service of the Postal Department in 2010 and admittedly, they became postmen or MTS only in the year 2013. In the light of the dictum laid down by the Apex Court in **N.K.Chauhan** 's case which was reiterated in **Suraj Parkash Gupta** 's **O.P.(CAT).317/2016 & conn.** 23 case, there can be no doubt with respect to the position that a direct recruit could not claim ante dating the year of appointment to a date on which he was not borne in that service. There is yet another reason to dispel the contentions of the petitioners. Though they were given appointments as Postman/MTS only in the year 2013, they had not chosen to challenge the orders of appointment to the extent they were given such appointment only from 2013 and not from 2010, the year in which vacancies occur. None of them had approached any forum raising grievance regarding the delay in conducting LDC Examination. When the appointment as Postman/MTS of GDS is based on a competitive examination, in such circumstances, the delay in conducting the examination cannot be a reason to hold that the appointees ought to have been treated to have been appointed on the date of occurrence of vacancies as who could say with precision that they would have passed the competitive examination had it been conducted earlier. The position that in the case of promotion if administrative reasons alone caused the delay, it could not be permitted to be recoiled on the promotees cannot be applied in the **O.P.(CAT).317/2016 & conn.** 24 case of direct recruits in the circumstances mentioned hereinbefore. It is to be noted that the petitioners in the said original petitions had not challenged their orders of appointments at any time after their appointments to the post of Postman/MTS. With open eyes they accepted the order of appointment and joined the post of Postman/MTS. Evidently, after joining the said post, they continued to function in that post for years together. In this context, it is to be noted that even now, no direct challenge has been made against the order of appointments to the aforesaid extent. Having failed to raise any challenge against the orders of appointment to the said extent at any point of time and accepted the appointment either as Postman or MTS, the petitioner cannot be permitted to raise any challenge against the orders of appointment indirectly to any extent, whatever be the purpose. What cannot be done directly cannot be permitted to be done indirectly. At this distance of time, the petitioners cannot raise any grievance relating their appointment as Postman/MTS even if it is only for the limited purpose of getting antedated the appointment for acquiring the prescribed length of regular service for appearing for the **O.P.(CAT).317/2016 & conn.** 25 examination for promotion. In such circumstances, on appreciating the contentions raised by the petitioners at any angle, we do not find any reason to hold that they are entitled to get their order of appointment antedated for the purpose of satisfying the eligibility criteria regarding the length of regular service for earning eligibility to appear in the examination for promotion to the post of Postal Assistant. We have already found that the Tribunal has rightly understood and applied the dictum of the Apex Court in **Najithamol** 's case and in such circumstances, there is absolutely no merit in these original petitions carrying challenge against the impugned order passed by the Central Administrative Tribunal. Therefore, these original petitions have to fail and accordingly, they are dismissed. Sd/- ## **C.T. RAVIKUMAR (JUDGE)** **Sd/K.P.JYOTHINDRANATH (JUDGE)** ## **spc/** **O.P.(CAT).317/2016 & conn.** 26 **O.P.(CAT).317/2016 & conn.** 27 **O.P.(CAT).317/2016 & conn.** 28 ## **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **O.P.(CAT).317/2016 & conn.** 29