Satish Chandra vs Union Of India (Uoi) And Ors. ...
2004 Latest Caselaw 788 Del

JUDGMENT

B.A. Khan, J.

1. Both these petitions arise out of common orders passed by Tribunal in OA No. 1998/99 dated 2.11.2000 and OAs 2401/2001 & 2402/2001 dated 4.2.2002 and 9.8.2002 dismissing the last two OAs filed by the petitioners and are being disposed of by this order.

2. The case of both petitioners is similar and identical on all fours. They were working as EDDAs at Etawah since 1982. They later took the examination of Postman/Village Postman against the vacancies for the year 1997 held on 23.11.1997. They were selected but could not be appointed against the vacancies of Etawah Division as these vacancies were filed up by more meritorious candidates for the 1997 vacancies. Some posts of 1997, however, remained unfilled in other divisions due to non-availability of qualified candidates and a decision was taken to fill up these posts by the surplus candidates of 1997 examination. Both these petitioners were accordingly allotted to Bulandshahar Division against the unfilled vacancies of 1997 by orders dated 12.2.1999, 18.2.1999 and 19.2.1999 passed by respondents. They were then appointed as temporary Postman and posted as officiating Village Postman at Chhatari and Debai respectively. They were later made to undergo training and after they were working at their posts, one Bishamber Singh, who was working in Bulandshahar Division and who was also a candidate for appointment to the post of Postman/Village Postman in subsequent 1998 examination filed OA No. 1998/99 challenging the posting of outsiders like petitioners in Bulandshahar Division on the ground that it had deprived them of appointment to the post of Postman/Village Postman in Bulandshahar Division though they had qualified the examination. Petitioners were not imp leaded as parties to this OA which was otherwise opposed by official respondents justifying their action on the ground that department was competent to fill the unfilled vacancies of a particular year in other divisions by the surplus candidates of the examination held in that year. The case of respondents, however, did not find favor and the Tribunal quashed the posting of these two petitioners to Bulandshahar Division by order dated 2.11.2000 holding:-

"In view of the above findings, we hold that the application succeeds and is accordingly allowed. The order posting on transfer to Bulandshahar, three candidates from outside divisions of 1997 examination for filling up the vacancies of 1998, for which exam were held in December 1998, is quashed. The respondents are directed to correctly workout, notify and consider the case of the applicants for appointment against those posts, on the basis of their performance in the examination conducted in December 1998, in accordance with the rules and instructions governing reservation applicable, if any."

3. While all this was going on, both petitioners had sought return to their home division Etawah where they were working at their stations when they were suddenly ordered to be relieved pursuant to the order passed by Tribunal in Bishamber Singh's OA No. 1998/99. They promptly approached the Tribunal and filed their own OA Nos.2401/2002 & 2402/2002 asking for quashing of their relieving orders and their continuation on the post of Postman/Village Postman at their places. These OAs were opposed by respondents on the ground that action taken by them was pursuant to orders passed by the Tribunal in Bishamber Singh's case. Both these OAs were accordingly dismissed on this with Tribunal obliquely suggesting that petitioners should have challenged the Tribunal order in Bishamber Singh's case.

4. Petitioner's case is that Tribunal had only quashed their allotment and posting order to Bulandshahar Division and not their temporary appointment as a Postman and that respondents had wrongly acted upon Tribunal order in Bishamber Singh's case by reverting them as EDDA in the garb of relieving them of their charge. It is also submitted by them that their appointment to the post Postman could not have been taken away by the Tribunal in Bishamber Singh's case at their back. Moreover, after they had completed the probation of two years, they were required to be given one month's notice under Rule 5 of CCS(TS) Rules of 1996 if their service was to be terminated.

5. We find that Tribunal had misdirected itself both while allowing Bishamber Singh's OA No. 1998/99 and by dismissing petitioner's OAs. Because it had failed to notice that these petitioners were selected candidates in reference to vacancies of 1997 whereas Bishamber Singh was a selected candidate for vacancies of 1998. Moreover, official respondents were competent to allot surplus candidates in case of unfilled vacancies of that year in other Divisions which they had justifiably done. Therefore, it was not a case where Bishamber Singh's right of appointment which he had against the 1998 vacancy was being taken away by filling up a 1997 vacancy through surplus candidates like petitioners.

6. Moreover, Tribunal had only quashed the posting order of petitioners in Bulandshahar Division and not their appointment to the post of Postman/Village Postman. Even this could not have been done at the back of petitioners as they were not imp leaded as parties in Bishamber Singh's OA.

7. The mistake seems to have been compounded by respondents in misreading the order passed by Tribunal in Bishamber Singh's OA and wrongly treating it as an order quashing the appointment of petitioners when it had only quashed their posting. These respondents seem to have betrayed utter ignorance in sending these petitioners back to the position of EDDA. Because if their temporary appointment to the post of Postman/Village Postman was to be terminated, it could have been done only in accordance with the relevant rules because their appointment was not under challenge in Bishamber Singh's case. Nor had Tribunal quashed their appointment.

8. The Tribunal had again fallen in error in dismissing petitioner's OA by blindly accepting the version of official respondents that they had done away with their service in compliance to the Tribunal order in Bishamber Singh's case. It had totally overlooked the petitioner's plea that the order in Bishamber Singh's case had only quashed the posting and could not have taken away their rights to the post at their back when they were not imp leaded as parties in that IA. The Tribunal order dismissing their OAs suffers from gross non-application of mind. Therefore, both orders passed by Tribunal in Bishamber Singh's case (OA 1998/99) in so far as it is treated as quashing petitioners' appointment and in their own OAs dismissing these by orders dated 4.2.2002 and 9.8.2002 become unsustainable and are quashed.

9. Both these petitions are accordingly allowed and respondents are directed to restore both petitioners to the post of Postman/Village Postman and treat them in continuous service and pay them consequential benefits within four months from receipt of this order.