CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH

Original Application No.180/00717/2015

Tuesday, this the 28th day of November, 2017

CORAM:

Hon'ble Mr.U.Sarathchandran, Judicial Member Hon'ble Mr.E.K.Bharat Bhushan, Administrative Member

Smt. Mini K.P., Aged 36 years, D/o. Shri. Bhaskaran Nair, Part-time Sweeper, P.O., , Residing at Moolayil House, Akkikkavu, Kunnamkulam P.O. . . . Applicant

(By Advocate - Mr. Shafik M. Abdulkhadir)

V e r s u s

1. Union of , Represented by its Secretary, Department of Posts, Ministry of Communication and Information Technology, Dak Bhavan, New Delhi - 110 116.

2. The Senior Superintendent of Post Offices, Division, Thrissur - 680 001.

3. Smt. P.V. Nalini, Kottilpurakkal House, P.O. Eyyal, Trichur District. . . . Respondents

(By Advocate - Mr. K. Kesavankutty (R1&R2))

This Original Application having been heard on 21.11.2017, the Tribunal on

28.11.2017 delivered the following: O R D E R

Per HON'BLE MR. U. SARATHCHANDRAN, JUDICIAL MEMBER

Applicant was continuously working as part-time Sweeper at Pazhanji

Sub Post office from 17.2.2000 till 16.01.2011. When respondent no.2 invited applications for provisional appointment to the post of Gramin Dak

Sevak Branch Postmaster (GDS BPM for short), Porkulam, she submitted application in the prescribed form. According to her, she was qualified in all respect for being selected to the post of GDS BPM, Porkulam having account with Pazhanji S.O. She had also sent Annexure A-2 representation dated

16.2.2011 to respondent no.2 requesting that she be given preference as she has been working continuously as part-time Sweeper in Pazhanji S.O since

17.2.2000. In terms of Annexure A-3 DG Posts letter dated 6.6.1988 for recruitment as ED Agents preference has to be given for those casual employees both full-time and part-time with a view to afford them a chance for ultimate absorption as Group D. She points out that one Smt.P.J.Prema part-time Sweeper Pazhanji filed O.A 1069/1998 before this Tribunal for giving her preference in accordance with Annexure A-3 instructions dated

6.6.1988. This Tribunal had allowed that case vide Annexure A-4 order dated 11.9.1998.

2. Applicant states that as the selection process was delayed, she was appointed as GDS BPM Porkulam from 17.1.2011 on ad-hoc basis. But on receipt of Annexure A-3 representation, respondent no.2 instructed the Post

Master Pazhanji S.O to terminate the adhoc arrangement and to relieve her from the post of GDS BPM immediately. In the above circumstance, she approached this Tribunal with O.A No.186/2011, praying for a declaration that she is entitled for preference in appointment as GDS BPM Porkulam on the basis of Annexure A-3 instructions. This Tribunal granted an interim order directing the respondents to allow her to continue as GDS BPM,

Porkulam vide Annexure A-5 order. But, the respondents appointed another candidate and directed her to take charge. The respondent was also proceeding with the selection process. Hence, the applicant again approached this Tribunal with M.A 219/2011 wherein an order was passed - after recording the submissions made by the respondents that all the call letters are withdrawn - again directing the respondents to continue the applicant. In spite of Annexure A-5, applicant was again ousted from the post of GDS BPM Porkulam. Hence she was forced to file Contempt of

Court CP(C) No.33/2011. When the applicant was again reinstated, the

CP(C) was closed vide Annexure A-7 order. The Original Application

No.186/2011 was heard in detail and this Tribunal passed Annexure A-8 order with a direction as under:-

'' In view of the above, this OA is disposed of with a direction to the respondents to consider all the cases of part-time or ful-time casual labourers in the Sub Division concerned for selection to the post of GDS BPM, Porkulam and if the applicant happens to be meritorious out of them, he may be given the appointment as GDS BPM. It is only after exhausting the above mode of appointment that selection to the post of GDS from open market be considered. Notification dated 17.12.2010 shall, therefore, be kept in abeyance or cancelled. '' (bolding supplied)

3. Respondents took Annexure A-8 order before the High Court of in OP(CAT) 979/2012. The High Court granted an interim order dated

20.3.2012 vide Annexure A-9. On 9.4.2012, respondents forcibly relieved the applicant from the post of GDS BPM, Porkulam. She submitted

Annexure A-10 representation for retention. But the respondents resorted to another stop-gap arrangement. However, OP(CAT) 912/2012 was dismissed by the High Court vide Annexure A-11 judgment dated 18.2.2014 upholding the order of this Tribunal in Annexure A-8.

4. Applicant contends that thereafter she has been again seeking for a re- engagement, as the person holding charge was from another sub division.

Applicant has filed CP(C) 76/2014 before this Tribunal. Respondent no.2 then called for documents from the casual labourers of the Sub Division vide

Annexure A-12 communication dated 28.1.2015. As all other casual labourers in the Sub Division were not having any of the qualifications for appointment as GDS BPM, none of them have submitted the required records. Respondents filed a statement in March 2015 that a letter dated

30.12.2014 from respondent no.1 has approved the implementation of the order of this Tribunal. Thereafter they filed a statement intimating the compliance of the order of this Tribunal producing the impugmed Annexure

A-1 order. Respondents submitted that for complying with the order of this

Tribunal, they have issued a letter to all the Post Masters/Sub Postmasters of

Trichur Division for forwarding the details of all casual labourers of that

Division. Immediately on knowing this, applicant has submitted one more representation to respondent no.2 to re-instate her pointing out that the selected candidate is from another Sub Division.

5. According to the applicant, candidate so selected vide Annexure A-1 is unable to read and write and she does not belong to Guruvayoor Sub

Division at all. In this OA applicant, therefore, prays for relief as under:

''(i) To call for the records relating to Annexure A-1 to A- 13 and to quash A-1 being illegal, arbitrary and against the directions of A-9 order;

(i)To declare that the selection to the post of GDSBPM, Porkulam, is to be done from among the casual labourers of Guruvayoor Sub Division only, as directed in A-8 order;

(iii)To direct the 2nd Respondent to conduct a selection based on A-12 along with the applicant and if selected from among the casual labourers of Guruvayoor Sub Division, to appoint the applicant as GDSBPM with effect from the date of arisal of the vacancy with all consequential benefits including arrears of salary and seniority;

(iv)To pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case.

(v)To award costs of this proceedings. ''

6. Respondent nos. 1&2 initially filed a reply statement stating that acquittance from part-time casual labourers working under Sub

Postmasters/Postmasters concerned under Trichur Division were collected and on verification it was found that only Smt.Nalini, the candidate mentioned in Annexure A-1 and Smt.Nisa.V had passed the SSLC or qualifying examination in the first chance. Whereas one Smt.Lakshmi.M.T and the applicant had passed such examination in the 3rd and 4th attempt respectively. The merit list prepared for the post of GDS BPM, Porkulam is tabulated below:

''

Sl. Name DOB Marks in Percentage No SSLC/Equ ivalent 1 Smt.Nalini P.V 12/04/60 399/900 44.33 (1st chance) 2 Smt.Nisa V 05/14/75 238/600 39.67 (1st chance) 3 Smt.Lakshami M.T 03/06/65 439/1000 43.9 (3rd chance -compartmental) 4 Smt.Mini K.P 03/27/74 214/600 35.67 (4th chance- compartmental)

''

7. According to the respondents as Smt.Nalini secured the first position in the merit, she was selected as GDS BPM Porkulam. It is worthwhile to quote certain portions of the reply statement filed by respondent nos.1 & 2.

'' 12. This Hon'ble CAT, in a similar case in O.A No.90/2011 filed by Smt.Preetha E allowed the O.A vide order dated 13.3.2012, with direction to consider the applicant along with the similarly situated contingent employees for the appointment to the post of GDS BPM, Thozhupadam. There was no such direction to consider the part time or full time casual labourers in the sub division only for the appointment to the post of GDS BPM, Thozhupadam. The Department filed OP(CAT) no.1568/2012 before the Hon'ble High Court of Kerala, Ernakulam challenging the order dated 13.3.2012 in O.A No.90/2011. The Hon'ble High Court of Kerala as per a common judgment dated 18.2.2014 in OP(CAT) Nos.1568, 1588, 1568, 1662 & 1710 of 2012 & 3649 of 2013 upheld the order of this Hon'ble Tribunal. 13.The respondent herein made selection to the post of GDS BPM, Thozhupadam along with the selection to the post of GDS BPM, Porkulam. It will not be appropriate to make selection to the GDS BPM, Thozhupadam by considering the part time casual labourers working in the entire Thrissur division and to make selection to the GDS BPM, Porkulam by considering the part time casual labourers in the sub division only. As the selection is to be made for identical posts ie Gramin Dak Sevak Branch Postmaster, respondent 2 herein decided to adopt common procedure for the selection to the post of GDS BPM, Porkulam and Thozhupadam. '' 14.(italics and bolding are supplied to highlight the strategy adopted by respondent No2 to hoodwink the specific direction in A8 )

8. Yet another interesting pleading by the respondents is :

''Head of the division i.e The Senior Superintendent of Post Offices, Thrissur Division is the recruiting authority of the Gramin Dak Sevak Branch Postmasters under Thrissur Division. Head of the Sub Division is the recruiting authority of the other category of Gramin Dak Sevak except the Gramin Dak Sevak Branch Postmasters. As such, it was decided to consider the part time casual labourers working under entire Thrissur Division for selection to the post of GDS BPM, Porkulam...... ''

(italics supplied)

9. The above pleaings were the spring board for a series of rejoinders and additional reply statements. We do not think it necessary to paraphrase all those additional pleadings because the issue involved in this case can be adjudicated essentially based on the pleadings in the Original Application and reply statement filed by respondent nos.1 and 2 and the record.

10. We have heard Shri.Shafik.M.A, learned counsel for applicant and

Shri.Kesavankutty, ACGSC, learned counsel appearing for respondent nos.1 and 2 at length. We have perused the record and the file relating to the selection of candidate as per Annexure A-1 order.

11. At the outset itself, we are constrained to observe that there has been a conscious attempt on the part of the respondents, especially respondent no.2, in not giving appointment to the applicant as GDS BPM, Porkulam even after she has secured the peremtive directions in Annexure A-8 order- which has been affirmed by the Hon'ble High Court in Annexure A-11 jugment dated

18.2.2014. Whenever Contempt of Court / implementation proceedings were initiated by her, the respondents were seen nonchalantly doing some lip service by engaging her for sometime and thereafter under one pre-text or the other throwing her out from such engagement and finally not selecting her in the selection process which has culminated in Annexure A-1 appointment order to Smt.Nalini.

12. Annexure A-8 order of this Tribunal which has been affirmed by

Annexure A-11 judgment by the High Court was a categoric direction to the respondents to consider all the cases of Part-time or Full-time casual labourers in the Sub Division concerned for selection to the post of

GDS BPM, Porkulam and if the applicant is happened to be meritorious, she be given the appointment as GDS BPM. We are at a loss to understand why the respondents applied ther mind to understand the scope and amplitude of the aforesaid direction. The presumptuous reason given by the respondents in their affidavit that since the appointing authority of GDS

BPM Porkulam being respondent no.2, he decided to consider all the eligible part-time or full-time Casual Labourers in the entire Trichur Division. Such a stand taken by respondent no.2 is in total oblivion of the specific direction contained in Annexure A-8 and hence is nothing but a act of disobedience of A8 order on his part. More over, it an obvious affront to the order passed by this Tribunal when he decides to make conjoint appointment to the post in this case along with the process of selection to another post which too was as per another court oder. 13. The direction in A8 was quite simple and obvious to consider all cases of part-time and full-time casual labourers of the sub divisions concerned , not for considering all those part time/full time casual labourers under respondent no.2's tutelage. We feel that such strategy employed by respondent No2 was to thwart the applicant who had no other competitors in her Sub-Division. Therefore, any step taken by respondent no.2 in violation of Annexure A-8 order has to be treated as void ab initio.

14. We have no hesitation to set aside the impugned Annexure A-1 order.

We do so. We note that the applicant had been granted an interim order in this case restraining the respondents not to fill up the vacancy of GDS BPM

Porkulam. The respondents are directed to re-consider selection to the post of

GDS BPM Porkulam strictly in terms of Annexure A-8 order of this Tribunal only from amongst the part-time or full time casual labourers of the same sub division and to give the applicant appointment if she happens to be meritorious amongst the candidates so considered. This exercise shall be completed by the respondents within one month from the date of receipt of a copy of this order. Only after exhausting the above mode of selection and appointment to the post of GDS BPM Porkulam selection from the open market needs to be considered. It is, however, made clear that in this process if the applicant is the sole candidate the respondents shall not rely on

Annexure R-2(a) instructions dated 9th Sep 1994 of the Department of Posts which is applicable only when more than one candidate is to be considered for appointment. No costs.

15. Before parting with this order we feel that the then incumbent of respondent no.2 shall not be let scot free for acting in violation of Annexure A-8 order and also thereby thumbing his nose at this Tribunal . We do not have any record to see that he is still in service or not. Therefore, we direct the respondent department to pay a cost of Rs.10,000/- to the applicant which has to be payable to her within one month from the date of receipt of a copy of this order. The respondent department shall be at liberty to recover that amount from the then incumbent who initiated the proceedings and issued

Annexure A-1 order.

16. Registry is directed to return the office file produced by the respondents to the learned Central Government Counsel after obtaining proper acknowledgement.

(E.K.BHARAT BHUSHAN) (U.SARATHCHANDRAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER sv List of Annexures of the applicant

Annexure A-1 - True copy of the Order No. BO/Porkulam dated 2.6.2015 issued by the 2nd Respondent.

Annexure A-2 - True copy of the representation dated 16.2.2011 submitted to the 2nd respondent.

Annexure A-3 - True copy of the D.G. Posts letter No. 17-141/88-EDC & TRG dated 6.6.1998.

Annexure A-4 - True copy of the Order dated 11.9.1998 of this Hon'ble Tribunal in O.A No. 1069 of 1998.

Annexure A-5 - True copy of the interim Order dated 7.3.2011 of this Hon'ble Tribunal in O.A. No. 186/2011.

Annexure A-6 - True copy of the Order dated 24.3.2011 in M.A. No. 219/2011 in O.A. No. 186/2011.

Annexure A-7 - True copy of the order dated 1.4.2011 in CPC No. 33/2011 of this Hon'ble Tribunal. Annexure A-8 - True copy of the Order dated 8.11.2011 in O.A. No. 186/2011 of this Hon'ble Tribunal.

Annexure A-9 - True copy of the interim order dated 20.3.2012 of the Hon'ble High Court in O.P.(C.AT) No. 979/2012.

Annexure A-10 - True copy of the Representation dated 10.04.2012 submitted by the applicant.

Annexure A-11 - True copy of the judgment dated 18.2.2014 of the Hon'ble High Court in O.P.(C.AT) No. 979/2012.

Annexure A-12 - True copy of the letter No. B2/Court Cases dated 28.1.2015.

Annexure A-13 - True copy of the Representation dated 1.8.2015 submitted by the applicant.

List of Annexures of respondents

Annexure R-2(a) - True copy of the Directorate letter No. 19-48/94- ED&Trg dated 09.09.1994, Government of India, Ministry of Communications & IT, Department of Posts.

Annexure R-2(b) - True copy of the Directorate letter No. 17-39/2012- GDS dated 08.1.2014, Government of India, Ministry of Communications & IT, Department of Posts, Establishment Division (GDS Section).

Annexure R-2(c) - True copy of the letter of the Director General, Posts dated 6.6.1988, Government of India, Ministry of Communications & IT, Department of Posts.

Annexure R-2(d) - True copy of Schedule annexed to Rule 4 of GDS (Conduct and Engagement) Rules 2011.

Annexure R-2(e) - True copy of the affidavit filed in C.P.(C) No. 76/2014 in O.A. No. 186/2011 of this Hon'ble Tribunal.

Annexure R-2(f) - True copy of the representation dated 03-02-2015.

Annexure R-2(f)(a) - True English translation of Exhibit R2(f).

. . . .