Union Of India Thr. Secretary, ... vs Vijay S/O Ramdas Hirekhan
2016 Latest Caselaw 6331 Bom

                                                           1                      wp1270.13

                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                       
                                       NAGPUR BENCH : NAGPUR




                                                               
                               WRIT PETITION NO.1270 OF 2013




                                                              
    1)      Union of India, through Secretary,
            Department of Posts, Dak Bhawan, 
            Sansad Marg, New Delhi - 110001.




                                                          
    2)      Principal Chief Postmaster General,
            Maharashtra Circle, 


    3)
            Mumbai - 400001.      
            Postmaster General, Nagpur Division,
            Shankar Nagar, Nagpur-440001.
                                 
    4)      Sr. Superintendent of Post Offices,
            Nagpur City Division, Nagpur-440010.                            ...   Petitioners
      

                     - Versus -

    1)      Vijay s/o Ramdas Hirekhan,
   



            age about 45 years, 
            At present part time casual labourer, 
            At Trimurty Nagar Post Office, 
            Resident of Plot No.5, Panchsheel





            Colony, Shivangaon, Nagpur-440005.                              ... Respondent
                                       -----------------
    Shri  S.A. Choudhari, Advocate for the petitioners. 
    Shri S.K. Verma, Advocate for the respondent. 





                                       ----------------


                                             CORAM :   SMT. VASANTI A  NAIK AND 
                                                       KUM. INDIRA JAIN, JJ.

DATED : OCTOBER 25, 2016

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ORAL JUDGMENT (PER SMT. VASANTI A NAIK , J.) :

By this writ petition, the petitioners challenge the order of

the Central Administrative Tribunal, dated 26/11/2012 allowing the

original application filed by the respondent and directing the petitioners to

consider the claim of the respondent for appointment as an Extra

Departmental employee (now known as Gramin Dak Sevak).

The respondent is a matriculate and belongs to reserved

category. The respondent was appointed as a casual labourer on part time

basis to do the work of Waterman and Sweeper. The respondent also

worked as an ED employee/Gramin Dak Sevak, if any ED employee/

Gramin Dak Sevak was on leave. Since the respondent was not absorbed

in the employment of the petitioners as an ED employee/Gramin Dak

Sevak despite the fact that he had put in services as a part time labourer

for a period of more than 15 years, the respondent filed original

application before the Central Administrative Tribunal for a direction

against the petitioners to absorb him as an ED employee/Gramin Dak

Sevak. The respondent also challenged the advertisement by which

petitioners desired to recruit Gramin Dak Sevaks.

The petitioners denied the claim of the respondent. According

to the petitioners, the respondent could not have claimed the regular

appointment. It was stated in the reply that the appointment of the other

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colleague of the respondent on the post of ED employee/Gramin Dak

Sevak was made on merits and the respondent did not have the right to

seek appointment as an ED employee/Gramin Dak Sevak. It was,

however, not disputed by the petitioners that the respondent was working

on part time basis for several years to water the plants and as a Sweeper

and respondent was sometimes asked to work as an ED employee/Gramin

Dak Sevak when any ED employee/Gramin Dak Sevak was on leave.

On an appreciation of the material on record, the Central

Administrative Tribunal, by the order dated 26/11/2012, allowed the

original application filed by the respondent and held that the respondent

was entitled to be considered for absorption as an ED employee/Gramin

Dak Sevak in view of Rule 30 of the Recruitment Rules, which provides for

preference to casual labourers in the matter of appointment as ED

employee/Gramin Dak Sevak. The order of the Tribunal directing the

petitioners to consider the claim of the respondent for appointment as an

ED employee is challenged by the petitioners in the instant petition.

Shri Chaudhari, the learned Counsel for the petitioners, states

that though the respondent was appointed on a part time basis to water

the plants and as a Sweeper, he cannot fall in the category of part time

casual labourer. It is submitted that Rule 30 of the Recruitment Rules

only provides for giving a preference to the casual labourers and part time

casual labourers in the matter of recruitment on the post of ED

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employee/Gramin Dak Sevak. It is submitted that the respondent would

not have any right to claim appointment on the post of ED employee/

Gramin Dak Sevak.

Shri Verma, the learned Counsel for the respondent, has

supported the order of the Tribunal. It is stated that as per Rule 30(4) of

the Recruitment Rules, the petitioners have decided to give preference to

the casual labourers, whether full time or part time, for appointment in

the vacancies of the ED employees/Gramin Dak Sevaks and the Tribunal

has granted the relief in terms of Rule 30(4) of the Recruitment Rules. It

is stated that though the respondent was ready and willing to be

appointed in a vacancy of ED employee/Gramin Dak Sevak and had asked

the petitioners to so appoint him, the petitioners failed to consider

appointing the respondent in the vacancy of ED employee/Gramin Dak

Sevak. It is stated that when the impugned order was passed by the

Tribunal and even today, there are several vacancies in the posts of ED

employee/Gramin Dak Sevak. It is stated that today also, the respondent

is required to work as a substitute ED employee/Gramin Dak Sevak in the

Post Office at Nagpur. It is stated that all that the Tribunal has asked the

petitioners to do, is to only consider the claim of the respondent for

appointment on the post of ED employee/Gramin Dak Sevak and there is

no scope for interference with the well reasoned order of the Tribunal that

is based on Rule 30 of the Recruitment Rules.

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On hearing the learned Counsel for the parties and on a

reading of the impugned order, we find that there is no scope for

interference with the impugned order in exercise of the writ jurisdiction.

The Tribunal has considered the fact that the respondent is working as a

part time casual labourer with the petitioners in the Post Office at Nagpur

for more than 15 years before filing of the original application. The

respondent was also required to work as a substitute ED employee/

Gramin Dak Sevak time and again when the ED employees/Gramin Dak

Sevaks were on leave. This fact is not disputed by the learned Counsel

for the petitioners on the basis of the instructions from the Officer of the

petitioners, who is present in the Court today. If the respondent is

required to work time and again as an ED employee/Gramin Dak Sevak

when regular ED employees/Gramin Dak Sevaks are on leave, it is difficult

to gauge why the petitioners are not considering the appointment of the

respondent on the post of ED employee/Gramin Dak Sevak despite the

fact that there are several vacancies in the post of ED employee/Gramin

Dak Sevak as on date. The only direction issued by the Tribunal is to

consider the claim of the respondent for appointment as an ED

employee/Gramin Dak Sevak. The said claim of the respondent is based

on Rule 30 of the Recruitment Rules that has been considered by the

Tribunal. We find that the claim of the respondent is fully supported by

Rule 30 of the Recruitment Rules and it was incumbent on the part of the

petitioners to have considered the claim of the respondent for

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appointment on the post of ED employee/Gramin Dak Sevak as the

respondent is working as a part time casual labourer for more than 20

years. We are not inclined to accept the submission made on behalf of the

petitioners that since the respondent is appointed on part time basis to

work as a Waterman and Sweeper, the respondent cannot be said to be a

part time casual labourer. In our view, the respondent falls within the

term "part time casual labourer" as he is working on part time basis for

watering the plants and as a Sweeper. By what other name the

respondent could be called, if he is not called as a part time casual

labourer. We find that the order of the Tribunal is just and proper and in

consonance with the policy of the petitioners to appoint part time and full

time casual labourers as ED employees/Gramin Dak Sevaks by giving

preference to them, if all other conditions are satisfied.

Since the order of the Central Administrative Tribunal is just

and proper, we dismiss the writ petition with no order as to costs. Rule

stands discharged.

                       JUDGE                                                       JUDGE





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