Swamidas P.V. and others v Union of India and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 WP(C).No. 9144 of 2004(S) ------------------------OA.996/2001 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS: ------------ 1. SWAMIDAS P.V., UPPAMOOTHIL HOUSE, KUTTAMPEROOR P.O., MANNAR (FORMERLY WORKING AS EXTRA DEPARTMENTAL MAIL MAN AT RMS DIVISION, THIRUVALLA) 2. BIJU T. PILLAI, ASSARIPARAMBIL HOUSE, VENPALA P.O., THIRUVALLA (FORMERLY WORKING AS EXTRA DEPARTMENTAL MAIL MAN AT RMS DIVISION, THIRUVALLA) 3. MADHUKUMAR K.O., KOCHUVEETTIL HOUSE, MUTHOOR P.O., THIRUVALLA (FORMERLY WORKING AS EXTRA DEPARTMENTAL MAIL MAN AT RMS DIVISION, THIRUVALLA) 4. SAMUEL GEORGE, CHUDUKATTIL HOUSE, THALAVADY P.O. (FORMERLY WORKING AS EXTRA DEPARTMENTAL MAIL MAN AT RMS DIVISION, THIRUVALLA) BY ADV. SRI.S.SUBHASH CHAND RESPONDENTS: ------------- 1. UNION OF INDIA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, MINISTRY OF COMMUNICATIONS, GOVERNMENT OF INDIA, NEW DELHI. 2. THE SUB RECORDS OFFICER HSG II RAILWAY MAIL SERVICE DIVISION, THIRUVALLA. WPC 9144 OF 2004 =2= 3. S.SAJITH KUMAR, ALAPPATTU HOUSE, KAVUMBHAGAM P.O., THIRUVALLA. 4. K.J.ABRAHAM, GDS MAILMAN, RMS OFFICE, THIRUVALLA. 5. ANOOJ MOHAMMAD KARIM, GSD MAILMAN, - RMS OFFICE, THIRUVALLA. 6. M.M.USHAKUMARI, GDS MAILMAN, RMS OFFICE, THIRUVALLA. - BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR - SRI.SAJITH KUMAR V. - SRI.JAYAPRADEEP. V., ADDL.CGSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 9144/04 ## APPENDIX ## PETITIONER'S EXHIBITS : - EXT.P1 TRUE COPY OF THE NOTIFICATION DT.24.9.01 ISSUED BY R2 EXT.P2 TRUE COPY OF CIRCULAR DT.17.5.89 ISSUED BY DEPT OF POSTS EXT.P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE FIRST PETITIONER BEFORE R2 - EXT.P4 TRUE COPY OF REPRESENTATION SUBMITTED BY 2ND PETIITONER EXT.P5 TRUE COPY OF REPRESENTATION SUBMITTED BY 3RD PETIITONER EXT.P6 TRUE COPY OF REPRESENTATION SUBMITTED BY 4TH PETIITONER - EXT.P7 TRUE COPY OF THE ORDER DT.8.2.2002 IN OA 996/01 OF CAT,EKM BENCH EXT.P8 TRUE COPY OF ORDER DT.6.2.02 OF CAT EKM BENCH IN OA 987/01 - EXT.P9 TRUE COPY OF ORDER DT.12.2.2002 OF CAT EKM BENCH IN OA 1031/01 EXT.P10 TRUE COPY OF MEMO DT.11.10.2001 MAINTAINED IN THE OFFICE OF R2 - EXT.P11 TRUE COPY OF MEMO DT.12.10.2001 MAINTAINED IN THE OFFICE OF R2 EXT.P12 TRUE COPY OF MEMO DT.01.03.2002 MAINTAINED IN THE OFFICE OF R2 - EXT.P13 TRUE COPY OF JUDGMENT DT.12.09.2002 OF THIS COURT IN OP 6218/02 - EXT.P14 TRUE COPY OF ORDER DT.5.6.2003 PASSED BY THE TRIBUNAL BELOW IN OA NO.996/01 - EXT.P15 TRUE COPY OF CERTIFICATE DT.10.3.2003 OF THE FIRST PETITIONER - EXT.P15(a) TRUE COPY OF THE STATEMENT INDICATING THE NUMBER OF DAYS DUTY PERFORMED BY THE FIRST PETITIONER FROM JANUARY 2000 TO DECEMBER 2002 - EXT.P16 TRUE COPY OF CERTIFICATE DATED 12.4.2003 OF 2ND PETITIONER - EXT.P16(a) TRUE COPY OF THE STATEMENT INDICATING THE NUMBER OF DAYS DUTY PERFORMED BY THE SECOND PETITIONER FROM JANUARY 2000 TO DECEMBER 2002 - EXT.P17 TRUE COPY OF THE CERTIFICATE DT.24.3.2003 OF THIRD PETITIONER - EXT.P17(a) TRUE COPY OF THE STATEMENT INDICATING THE NUMBER OF DAYS DUTY PERFORMED BY THE THIRD PETITIONER FROM JANUARY 2000 TO DECEMBER 2002 WPC 9144/04 EXT.P18 TRUE COPY OF THE CERTIFICATE DT.14.5.2003 OF 4TH PETITIONER EXT.P18(a) TRUE COPY OF THE STATEMENT INDICATING THE NUMBER OF DAYS DUTY PERFORMED BY THE 4TH PETITIONER FROM JANUARY 2000 TO DECEMBER 2002 EXT.P19 TRUE COPY OF THE ORDER DT.7.11.2003 PASSED BY THE LEARNED TRIBUNAL BELOW IN RP NO.7/2003 IN OS NO.996/01 ## RESPONDENTS'S EXHIBITS : EXT.R3(a) TRUE COPY OF THE PLEADING IN THE COUNTER AFFIDAVIT DT. 18.6.2002 FILED BY R2 IN OP 6218/02 EXT.R2(a) TRUE COPY OF THE LETTER NO.17-141/88-EDC& TRG DT.6.6.1988 EXT.R2(b) TRUE COPY OF THE APPLICATION FORM FOR LEAVE OF GRAMIN DAK SEVAKS DT.NIL EXT.R2(c) TRUE COPY OF THE ACUITTANCE ROLL FOR THE MONTH OF OCT.2000 TRUE COPY PA TO JUDGE ## **K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.** -------------------------------------------------------------------------------- Writ Petition (C) No.9144 of 2004-S -------------------------------------------------------------------------------- ## Judgment ## Balakrishnan Nair, J. The writ petitioners were the applicants in OA No.996/01 before the CAT, Ernakulam bench. The respondents herein are the respondents in the said OA and a few others. 2. The brief facts of the case are the following : The writ petitioners were working as substitutes in the place of Gramin Dak Sevak Mailmen. They claim, they were working in the said post since 1996-97. While so, some of the Gramin Dak Sevak Mailmen were promoted as Group D employees and therefore, regular vacancies were available from 11.10.2000. So, the writ petitioners were being engaged continuously in those vacancies without any break. It is not in dispute that they were not recruited through the employment exchange. Their initial engagement as substitute employees was made by the concerned Gramin Dak Sevak Mailmen, who were on leave. While so, the second respondent invited applications as per Ext.P1 notification dated 24.09.2001 for appointment to the post of Gramin Dak Sevak Mailmen. The WPC 9144/04-S 2 last date for receipt of applications was 05.10.2001. The writ petitioners submitted representations claiming preference in appointment to the vacancies notified. According to them, casual employees are entitled to preference in the matter of recruitment to the post of Gramin Dak Sevak Mailmen. In support of this submission, they rely on Ext.P2 circular dated 17.05.1989. Relying on the said circular, they say that they are outsiders and therefore, entitled to be considered for appointment to the post notified. They also rely on circular no.17/141/88-EDC & Trg. Dated 06.06.1988 of the Director General of Posts in support of their claim. The said circular is extracted in Ext.R2(a), which reads as follows : _“According to the prevalent recruitment rules governing the cadre of Group D, the order of preference among various segments of_ _eligible employees is as under :_ _a) Non test category_ _b) ED Employees_ _c) Casual Labourers_ _d) Part-time Casual Labourers_ _2. Since the number of vacancies of Group D is limited and_ WPC 9144/04-S 3 _the number of ED employees eligible for recruitment as Group D is comparatively large, the Casual Labourers and Part-time casual labourers hardly get any chance of their being absorbed as Group D. Thus, majority of casual labourers with long service are left out without any prospect of their getting absorbed in Group D cadre._ _3. Keeping the above in view, a suggestion has been put forth that casual labourers both full and part-time should be given preference in recruitment as Extra Departmental Agents in case, they are willing, with a view to afford the casual labourers the chance for ultimate absorption as Group D._ _4. The suggestion has been examined in detail and it has been decided that casual labourers whether full-time or part-time, who are willing to be appointed to ED vacancies 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 1 year. For this purpose, the service of 240 days in a year may be reckoned as one year service. It should be ensured that_ WPC 9144/04-S 4 _nominations are called for from employment exchange to fill up the vacancies of casual labourers so that ultimately the casual labourers who are considered for ED vacancies have initially been sponsored by employment exchange._ _5. These instructions take effect from the date of their_ _issue._ _6. This also disposes of DO Letter No.Rectt/27-1/85/II dated 25.09.87 and 06.10.1987 received from the office of PMG, Trivandrum.”_ 3. Notwithstanding their representations, they were not considered for selection to the post of Gramin Dak Sevak Mailmen by the competent authority and he proceeded to make selection from the open market. Exts.P3 to P6 were the representations filed before the 2[nd] respondent. When those representations were of no avail, they approached the CAT by filing OA No.996/01. The said OA was disposed of by Ext.P7 order, holding that the writ petitioners, who were the applicants therein are also substitutes and therefore, they are not entitled to get any preference in the matter of selection to the post of ED Agents. The said decision was rendered, without taking into account, the WPC 9144/04-S 5 decisions of the co-ordinate benches of the CAT, which are produced as Exts.P8 and P9. Feeling aggrieved by Ext.P7, the petitioners approached this Court by filing OP NO.6218/02. The said OP was disposed of by Ext.P13 Judgment, directing the CAT to consider the claim of the petitioners that they were working as outsiders after 11.10.2000. The matter was re-heard and by Ext.P14 order, the OA was dismissed. The tribunal took the view that there was no material on record to show that the applicants have worked for 240 days between 11.10.2000 and 05.10.2001. The petitioners attempted a review petition, producing certain documents to show that they have actually worked for more than 240 days during the above said period. But the tribunal declined to act on those documents and dismissed the RP by Ext.P19 order. So, this Writ Petition is filed challenging Exts.P14 and P19 and also seeking consequential reliefs. The petitioners would submit that from 11.10.2000, they were continuously working in the post of ED Mailmen. Though they came as substitutes, since they were working continuously, they should be treated as equivalent to casual labourers by virtue of Ext.P2 circular. Therefore, it is further submitted that they are entitled to preference in the matter of selection to the post of ED Agents by virtue of Exts.R2(a) letter of the Director General WPC 9144/04-S of Posts dated 06.06.1988. 6 4. At the time of hearing the Writ Petition, the factual dispute regarding the number of days the petitioners have actually worked was projected and to resolve the said dispute, we directed the 2[nd] respondent to file an affidavit. As per the affidavit filed by the 2[nd] respondent, it is the admitted position that the writ petitioners have actually worked for more than 240 days between 11.10.2000 and 05.10.2001. In view of the above admitted facts, the petitioners claim, they may be considered for selection as ED Agents. The official respondents, when confronted with the position that they have actually worked for more than 240 days, tried to support the dismissal of the OA by Ext.P14 order on other grounds. They submitted that Ext.P2 applies only to selection to the post of Group D employees. They also pointed out that as per the letter of the Director General of Posts Ext.R2(a) dated 06.061988, only those who came though the employment exchange could be treated as casual employees and such employees alone are entitled to preference in the matter of appointment to the post of ED Agent. The petitioners do not come under the category of casual labourers, who are appointed through employment exchange. They also pointed out that in view of the recent decision of the Apex WPC 9144/04-S 7 Court in Secretary, **State of Karnataka v. Umadevi** (2006) 4 SCC 1), the claim of the petitioners for selection on the ground of their past service is unsustainable. 5. The learned counsel for the 4[th] respondent submitted that to the four vacancies notified as per Ext.P1, four persons were selected and they were appointed in June 2003 and that they have been regularly working in those posts since then. 6. Going by Ext.R2(a), the casual workers mentioned therein are persons employed through employment exchange. Such casual employees are entitled to be considered for appointment to Group D posts by virtue of Ext.P2 circular. But, as the vacancies in Group D posts are not sufficient to accommodate all casual employees, Ext.R2(a) provides that those who are willing to be absorbed as ED Agents among the casual workers, can also be considered for appointment to the said post. The casual workers engaged through the employment exchange are called by different names in different stations. That is evident from Ext.P2. In some places, they are called outsiders. The petitioners who are evidently substitutes and happened to be engaged continuously for about one year, cannot claim that they have become outsiders WPC 9144/04-S 8 in terms of Ext.P2 order, even assuming an Officer of the Postal Department has described them as outsiders. So, they are only substitutes, who worked continuously for about one year before they submitted their application pursuant to Ext.P1 notification. None of the orders produced in this Writ Petition supports the claims of such persons. Exts.P8 and P9 deal with the case of persons who have long service, but those decisions could not be relied on now, in view of the decision of the Constitution Bench of the Apex Court in **Umadevi'** s case mentioned above. So, even if it is admitted position that the petitioners have worked for more than 240 days between 11.10.2000 and 05.10.2001, still, they are not entitled to any preference in the matter of appointment as Gramin Dak Sevak Mailmen. Their claim is not supported by any Rule or relevant orders. The learned counsel for the petitioners, in answer to the contention made by the respondents relying on **Umadevi** 's case, brought to our notice, a recent decision of the Apex Court in **Uttar Pradesh State Electricity Board v. Pooran Chandra Pandey** (2007(4) KLT 513 SC). We are of the view that the principles laid down in that case do not apply to the facts of this case. We are bound by the Constitution Bench decision of the Apex Court in **Umadevi** 's case. Therefore, the said contention of the learned WPC 9144/04-S 9 counsel for the petitioners cannot be accepted. In the result, the Writ Petition fails and it is dismissed. **K.BALAKRISHNAN NAIR,JUDGE** 29.01.2008 **P.N.RAVINDRAN, JUDGE** sta