Union of India v. Shy Vachanapalan and Rajitha R

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 26TH DAY OF SEPTEMBER 2016/4TH ASWINA, 1938 OP (CAT).No. 251 of 2016 () ---------------------------- AGAINST THE ORDER/JUDGMENT IN OA 771/2013 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 08-03-2016 PETITIONER(S)/RESPONDENTS: ----------------------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, DEPARTMENT OF POSTS, NEW DELHI-110 001. 2. CHIEF POSTMASTER GENERAL KERALA CIRCLE, THIRUVANANTHAPURAM-695 033. 3. SUPERINTENDENT OF POST OFFICES, PATHANAMTHITTA DIVISION, PIN-689 645. BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA RESPONDENT(S)/RESPONDENTS: ------------------------------------- 1. SHY VACHANAPALAN D/O.K R VACHANAPALN, WORKING AS POSTMAN, KUMPLAMPOIKA P O, PATHANAMTHITTA DIVISION, RESIDING AT GANGOTHRY, SEETHATHODU P O, PATHANAMTHITTA - 689 667. 2. RAJITHA R W/O.SURESHKUMAR, POSTMAN, NEDUMON P O, PATHANAMTHITTA DIVISION, RESIDING AT RAJEEV BHAVAN, NEAR GOVERNMENT VHS, NEDUMON(P.O), NEDUMON-691 556. SRI. M.R. HARIRAJ THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 26-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(CAT) No. 251/2016 : 2 : OP (CAT).No. 251 of 2016 () -------------------------------- : 2 : ## **APPENDIX** PETITIONER(S)' EXHIBITS: ------------------------------ EXHIBIT P1 TRUE COPY OF OA 771/2013 DTD 12/8/2013 , FILED BY THE RESPONDENTS BEFORE THE CENTRAL ADMINISTRAVE TRIBUNAL, ERNAKULAM BENCH. ANNEXURE A8: TRUE COPY OF NOTICE NO.B3/27/EXAM/2009/II DATED 11.09.2012 ISSUED BY THE 3RD RESPONDENT. ANNEXURE A15: TRUE COPY OF THE MEMO NO.B3/27/EXAM/2009/II DATED 06.03.2013. ANNEXURE A17: TRUE COPY OF MEM NO. B3/27/EXAM/2009/II DATED 15.11.2012 AND DATE IN RESPECT OF 2ND APPLICANT. ANNEXURE A1: TRUE COPY OF NOTIFICATION NO.RECTT/12-2/ADR/2007 DATED 11.08.2009 ISSUED BY THE 2ND RESPONDENT. ANNEXURE A2: TRUE COPY OF THE RANKED LIST OF CANDIDATES WHO APPEARED IN THE POSTMAN EXAMINATION FOR 2006 TO 2008. ANNEXURE A3: TRUE COPY OF THE LETTER NO.RTI/2005 DATED 27.01.2010. ANNEXURE A4: TRUE COPY OF MEMO NO.B2/POSTING DATED 14.12.2009 ISSUED BY THE 3RD RESPONDENT. ANNEXURE A5: TRUE COPIES OF FINAL ORDERS DATED 14.02.2011 IN OA NO. 232 OF 2010 ON THE FILES OF THIS HON'BLE TRIBUNAL. ANNEXURE A6: TRUE COPY OF THE COMMON JUDGMENT DATED 20.12.2011 IN OP(CAT) NO. 1099/2011 AND CONNECTED CASES ON THE FILES OF THE HON'BLE HIGH COURT OF KERALA. ANNEXURE A7: TRUE COPY OF THE REPRESENTATION DATED 08.06.2016 SUBMITTED BY THE FIRST APPLICANT. ANNEXURE A9: TRUE COPY OF THE REQUEST DATED 06.09.2012 AND THE RESPONSE NO.CCC/RTI/44/12-13 DATED 20.09.2012 ISSUED BY THE PIO. ANNEXURE A10: TRUE COPY OF THE REQUEST DATED 31.05.2013 MADE BY MR.V.K. SOMARAJAN PILLAI AND THE RESPONSE NO.B3/RTI ACT/2013-14 DATED 04.07.2013 ISSUED BY THE PUBLIC INFORMATION OFFICER. ANNEXURE A11: TRUE COPY OF THE FINAL ORDER DATED 01.01.2013 IN OA. OP(CAT) No. 251/2016 : 3 : NO.245/2012 ON THE FILES OF THE HON'BLE TRIBUNAL. ANNEXURE A12: TRUE COPY OF THE JUDGMENT DATED 02.07.2013 IN OP(CAT) NO.1729/2013 ON THE FILES OF HON'BLE HIGH COURT OF KERALA. ANNEXURE A13: TRUE COPY OF THE REPRESENTATION DATED 08.08.2013. ANNEXURE A14: TRUE COPY OF THE REPRESENTATION DATED 07.08.2013. ANNEXURE A16: TRUE COPY OF THE REPRESENTATION DATED 11.03.2013 SUBMITTED BY THE 1ST APPLICANT. ANNEXURE A18: TRUE COPY OF MEMO NO.B3/27/EXAM/2009/II DATED 04.12.20012 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P2 TRUE COPY OF REPLY STATEMENT DTD 21/11/2013, FILED BY THE PETITIONERS BEFORE THE CETRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN OA NO 771/2013 ANNEXURE R1: TRUE COPY OF THE MARK LIST OF CANDIDATES QUALIFIED IN THE POSTMAN EXAMINATION FOR THE VACANCIES OF 2007 HELD ON 18.10.2009. ANNEXURE R2:TRUE COPY OF THE LETTER NO.RECTT/4-3/REVIEW/E&V/2012 DATED 14.09.2012. EXHIBIT P3 TRUE COPY OF REJOINDER DTD 6/1/2014 FILED BY THE RESPONDENTS IN OA NO.771/2013. EXHIBIT P4 TRUE COPY OF ADDITIONAL REPLY STATEMENT DTD 17/3/2014 , FILED BY THE PETITIONERS IN OA NO 771/2013 , BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM DISTRICT EXHIBIT P5 TRUE COPY OF THE ORDER DTD 8/3/2016 IN OA NO 771/2013 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. RESPONDENT(S)' EXHIBITS: NIL ------------------------------- /True Copy/ P.A to Judge. rv P.R. RAMACHANDRA MENON & DAMA SESHADRI NAIDU, JJ. ------------------------------------------- O.P.(CAT). No. 251 of 2016 (Z) -----------------------------------------Dated this the 26[th] day of September, 2016. ## JUDGMENT ## Ramachandra Menon,J. Respondents in O.A .No. 771 of 2013 before the Central Administrative Tibunal, Ernakulam are the petitioners in this Original Petition. Grievance is against the verdict passed by the Tribunal as per Ext.P5, whereby relief to some extent has been given to the respondents/applicants, which, according to the petitioners, is not liable to be extended under any circumstance, by virtue of the declaration of law by the Tribunal to the effect that the appointment to the post of Postman from the cadre of GDS is only promotion, and that no principles of reservation could be made applicable. 2. The sequence of events revealed from the proceedings forming part of the materials on record is that the respondents herein, who were the applicants before the Tribunal, were working as GDS (Gramin Dak Sevak) under the petitioners for quite long. In respect of the vacancies of Postmen which arose in 2007, they participated in the examination conducted in 2009 for the said post. On W.P.(C.) No. -2- coming out successful, they were appointed as Postmen by virtue of their merit and credentials as members belonging to the OBC. The appointment given to the applicants was sought to be challenged by some aggrieved persons by filing OA. No. 232 of 2010 before the Tribunal. The Department sought to sustain the course pursued by them, in having extended the benefit of OBC and appointing the applicants. But, by the time, a declaration had already been made in a similar case, O.A. No. 608 of 2010 on 14.02.2011, whereby it was held by the Tribunal that appointment of GDS employee to the post of Postman is by way of 'promotion' and hence the principles of reservation would not be applicable, and hence the appointment was bad. The case filed before the Tribunal against the respondents herein i.e. O.A. No. 232 of 2010 was also decided in the aforesaid lines, as per Annexure A5 order dated 14.02.2011. Aggrieved by the same, the respondents herein approached this Court by filing O.P (CAT) No. 1099/2011. Interference was declined and OP was dismissed as per Annexure A6 judgment dated 20.12.2011. This made the respondents to be aggrieved, who approached the Supreme Court by filing an SLP . The Department, however, did not choose to contest the matter. It is true that there was no interim order, and in such circumstance, Annexure A8 notice was issued by the Department requiring the respondents herein to show cause, why they shall not be reverted. On receipt of the said notice W.P.(C.) No. -3- dated 11.09.2012, a detailed reply was submitted, pointing out that, even if the appointment was considered as a matter of promotion, it has to be dealt with considering all the available vacancies, more so since the number of vacancies in the 'promotion quota' would be much higher than the extent as sought to be projected by the Department. The claim was not positively considered. Later, the Department issued another notice as Annexure A15 on 06.03.2013, virtually reiterating the earlier stand, however, making it subject to the result of the SLP pending before the supreme Court. The position was communicated to the respondents as to the revision of the select list effected already, as per Annexure A17 dated 15.11.2012. This was sought to be challenged by filing O.A. No. 771 of 2013, wherein an interim order of stay was granted in favour of the respondents, directing not to revert them from the post of Postman. 3. In the meanwhile, the verdict passed by this Court in O.P.(CAT) No. 1099/2011 as per Annexure A6 judgment was sought to be reviewed by filing R.P.No. 899 of 2012. The said judgment passed by this Court contained an observation to have the matter considered with reference to the applicants therein; whereas the petitioners in the said case, who were actually the respondents before the Tribunal, were also stated as entitled to have similar treatment. As per order dated 06.10.2015, the R.P was allowed. OA filed before the Tribunal came to be finalised as per Ext.P5, W.P.(C.) No. -4- virtually granting the relief to some extent, which is sought to be intercepted at the instance of the Government/Department in this Original Petition. 4. Heard the learned Assistant Solicitor General of India, who appeared for the petitioners and Sri. M.R. Hariraj, the learned counsel appearing for the respondents. 5. During the course of hearing, it is brought to the notice of this Court by the learned counsel for the respondents that the issue which was pending consideration before the Supreme Court has attained finality, in view of the law declared by the Supreme Court as per the decision reported in Najithamol Y and others v. Soumya S.D and others[1] , whereby it has been categorically held that, appointment to the post of 'postman' from the post of GDS is nothing other than the direct recruitment. By virtue of the declaration of law, it is pointed out that the principles of reservation will be applicable, and as such, the original appointment given to the respondents herein by the Department in the year 2009 applying the rule of reservation, being members of OBC, was perfectly within the four walls of the law and not assailable in any circumstance. This being the position, this Court finds that nothing further survives to be considered in this original petition. The verdict passed by the Supreme Court being the law of the land, by virtue of Article 141 of the Constitution of India, it has to be given effect to by the 1 2016 (4) KHC 280 (SC) W.P.(C.) No. -5- Department, making appropriate corrections wherever necessary in the matter of selection and appointment. If any such consequential orders are to be passed, the same shall be done applying the legal position to the given set of facts and circumstances, of course in the light of the law declared in Najithamol. 6. We make it clear that, Ext.P5 order passed by the Tribunal, to the extent the same is related to the cause of the respondents herein for promotion, will stand inoperative. It is open for the petitioners herein to bring the position back to the track in conformity with the verdict passed by the Supreme Court. The said exercise shall be done as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. This Original Petition is disposed of as above. ## P.R. RAMACHANDRA MENON, JUDGE. DAMA SESHADRI NAIDU, JUDGE. _Rv_ W.P.(C.) No. -6-