## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN**
**TUESDAY, THE 26TH DAY OF JULY 2016/4TH SRAVANA, 1938**
**WP(C).No. 16237 of 2009 (S) ----------------------------**
**PETITIONER(S):**
**-------------**
**1. THE SUPERINTENDENT OF POST OFFICES, THIRUVANANTHAPURAM SOUTH DIVISION, THIRUVANANTHAPURAM.**
**2. UNION OF INDIA, REPRESENTED BY THE CHIEF POSTMASTER GENERAL, KERALA CIRCLE, THIRUVANANTHAPURAM.**
**BY ADVS. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL SRI.P.P.PADMALAYAN, C.G.C**
**RESPONDENT(S):**
- **--------------**
**C.JOSEPH, GDSMD, PLAMOOTUKADA, NEYYATTINKARA POSTAL SUB DIVISION.**
**BY ADVS. SRI.G.SASIDHARAN CHEMPAZHANTHIYIL SRI.S.VISHNU**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-07-2016 ALONG WITH WP(C) 34762/2007 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**msv/**
**WP(C).No. 16237 of 2009 (S)**
## **----------------------------**
## **APPENDIX**
## **PETITIONER(S)' EXHIBITS**
**-----------------------**
**EXT P1: TRUE COPY OF THE CAT ORDER DTD.18.4.2002 IN OA.264/2002 FILED BEFORE THE HON'BLE CAT ERNAKULAM BENCH.**
**EXT.P2: TRUE COPY OF THE HIGH COURT OF KERALA JUDGMENT DTD.24.2.2005 IN OP.11472/2002.**
**EXT.P3: TRUE COPY OF OA.NO.97/2008 FILED BY THE RESPONDENT.**
**EXT.P4: TRUE COPY OF CAT ORDER DTD.12.8.2008 IN OS.NO.97/2008. EXT.P5 TO P7: NIL**
**EXT.P8: TRUE COPY OF ORDER IN OA.97/2008 OF C.A.T., ERNAKULAM BENCH.**
**RESPONDENT(S)' EXHIBITS:**
**------------------------**
## **NIL**
**//TRUE COPY//**
**P.S.TO JUDGE**
**Msv/**
## **P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.**
.............................................................................. **W.P.(C)No.16237 OF 2009** ......................................................................... **Dated this the 26[th] July , 2016**
## **J U D G M E N T**
## **P.R. Ramachandra Menon, J.**
Challenge is against Ext.P4 verdict passed by the Central Administrative Tribunal, Ernakulam Bench in O.A.No.97 of 2008. The grievance of the petitioner/Superintendent of Post Offices is that the verdict passed by the Tribunal granting the benefit of regularisation to the respondent employee in terms of Annexure A1 is not correct or sustainable, as the initial engagement of the respondent was not pursuant to any regular process of selection and no procedural formality was completed for giving such engagement.
2. The respondent came to be engaged in the vacancy of GDSMD (Gramin Dak Sevak Male Deliverer), in the vacancy resulted when the original incumbent was put off duty on 16.09.1999. He was continuing so without hindrance from any corner, for nearly 2 ½ years and it was only on 19.03.2002,
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that the vacancy was notified to be filled up on provisional basis, i.e., by complying with the actual procedure intended for filling up the vacancy resulted under such circumstance. This made the respondent feel aggrieved, who approached the Tribunal by filing O.A.No.264 of 2002; wherein interference was declined. The respondent approached this Court by filing O.P. 11472 of 2002 and based on an interim order of stay in the said O.P., the petitioner was continuing in service on a provisional basis. A finding was rendered by this Court that, though the background in which the said petitioner's selection came to be made was not clear, (although he was having a case that the selection was made after following the parameters required) , he was to be permitted to continue as a ' provisional employee'.
3. The applicant continued as above till 27.11.2007, when the disciplinary action taken against the regular incumbent came to be finalised by reinstating him in service. The contention of the petitioner/applicant was that under such circumstance, he was liable to be included in the list of provisional GDS employees, who had rendered service of more than three years on provisional
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basis and to give alternate employment in terms of Annexure A4 to A7. This made the respondent to approach the Tribunal by filing the O.A. concerned with the following prayers:
- _“1. Direct the respondents to consider the claim of the applicant for the benefit of Annexure A1._
_2. Direct the respondents to consider the inclusion of the applicant in the wait list of ED Agents discharged from service maintained in Thiruvananthapuram South Postal Division_
_3. Direct the respondents to consider and pass orders on Annexure A3 and A4 in the light of Annexure A5 order_
_4. Any other further relief or order as this Hon'ble Tribunal may deem fit and proper to meet the ends of justice._
_5. Award the cost of these proceedings to the applicant. ”_
The claim was resisted from the part of the respondents in the O.A., who are petitioners herein, stating that the applicant was continuing in service on provisional basis by virtue of fortuitous circumstances and not by virtue of any merit, he having not been posted after completing the procedural formalities for giving effect to such provisional engagement.
4. After hearing both the sides, the Tribunal held as per Ext.P4 order that the respondents in the O.A were not justified in
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taking such a contention, in so far as the engagement of the applicant from 16.09.1999 till 19.03.2002 was without the intervention of any Court. The interim order passed by this Court was only on 26.04.2002 and by virtue of the said order, the applicant was continuing in service as a provisional hand, till the matter was finalised. When the matter came to be finalised by passing the verdict in O.P.No. 11472 of 2002, this Court gave a positive declaration to the effect that the applicant/petitioner was liable to be permitted to continue as a 'provisional employee'. This declaration has not been subjected to challenge from the part of the department/present petitioners and as such, the said finding has become final. In so far as the said declaration has become final, the source of recruitment of the respondent is no more a matter to be considered by this Court and all the rights and liberties flowing from such declaration as a 'provisional employee' are to be extended to the applicant / respondent herein.
5. There is no dispute to the fact that the persons, who come to be engaged as 'provisional hands' in the slots resulted
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because of placing the original incumbents on 'put off duty', are entitled to be given alternate employment in terms of Annexure A1, subject to the condition that they should satisfy the minimum service of three years. The said requirement stands satisfied by the respondent herein and as such, there was every right for the respondent to aspire for the benefit in terms of Annexure A1. This alone was considered by the Tribunal, answering the position in positive . The observations made by the Tribunal in paragraphs 5 and 6 are relevant which are extracted below:
_“5. Arguments were heard and documents perused. Admittedly from September 1999 till at least March 2002 the applicant was serving as GDS MD without the intervention of the Court. It was only on 26[th] April 2002 that by an interim order of the High Court that the applicant continued to hold the post for the subsequent period. If the writ petition were dismissed, it would mean that the applicant was holding the post on the basis of the order of the High Court and but for such an interim order, he was not eligible to hold the post and the stay granted was a grace. Instead, when the writ petition was allowed, it means that the applicant was fully entitled to hold the post even otherwise. It is pertinent to point out here that the provisional character of the appointment of the applicant right from the beginning has been appreciated_
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## **W.P.(C)No.16237 OF 2009**
_by the High Court and tacitly spelt out when it has stated. 'We feel that he is to be permitted_ _**to continue, as a provisional employee** ...” vide the penultimate para of Annexure A-2 judgment. Thus the view of the High Court is that right from the beginning the applicant had been functioning on provisional basis._
_6. When a person get a stay order from the Court, he undertakes a risk in the sense that he would not be relieved from the clutches of any liability which otherwise would have fastened upon him but for the stay nor would he crystallize any right on the basis of the stay if ultimately he loses his case. (See_ _**Kanoria Chemicals and Industries Ltd. v. U.P.SEB** [_ _**1997) 5 SCC 772]** , and_ _**Chamundi Motors Pvt. Ltd. vs. South India Trust Association** [1992) 3 SCC 1]. In case he succeeds in his litigation, then it would mean that the benefit of stay is fully available to him. In the instant case as the applicant was victorious in his writ petition, the stay granted to him to continue in the post was ultimately made absolute which means that he was otherwise also entitled to continue even without a stay. Thus, the entire service rendered by him qualifies to be a service on provisional basis and hence, the benefit of D.G.P & T order dated 18[th] May, 1979 is fully available to the applicant. ”_
After considering the matter in detail we find that the finding and reasoning given by the Tribunal in Ext.P4 are perfectly within the four walls of law and do not warrant any interference. The writ
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petition fails and the same is dismissed accordingly.
6. In view of the fact that the name of the respondent/applicant has already been enlisted in the category of persons who are eligible to get re-appointment in terms of Annexure A1, the first petitioner herein is required to consider the case of the respondent/applicant in the O.A., in tune with the terms of Ext.P4, for extending the relief in accordance with the eligibility norms without further delay.
**P.R. RAMACHANDRA MENON, JUDGE**
**ANIL K. NARENDRAN, JUDGE**
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