Kerala High Court
The Senior Superintendent Of Post ... vs The Senior Superintendent Of Post ... on 14 January, 2021
O.P.(CAT) No.112 of 2020 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942
OP (CAT).No.112 OF 2020
AGAINST THE ORDER DT.28.9.2018 IN OA 1153/2014 OF CENTRAL
ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONERS/RESPONDENT:
1 THE SENIOR SUPERINTENDENT OF POST OFFICES
ALUVA DIVISION, ALUVA - 683 101.
2 THE CHIEF POST MASTER GENERAL
KERALA CIRCLE, THIRUVANANTHAPURAM - 695 033.
3 THE POST MASTER GENERAL
REGIONAL OFFICE, KOCHI - 682 016.
4 UNION OF INDIA
REPRESENTED BY THE DIRECTOR GENERAL AND SECRETARY,
DEPARTMENT OF POSTS, DAK BHAVAN,
NEW DELHI - 110 116.
BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
RESPONDENT/APPLICANT:
VINOD N. R.
MTS, MUVATTUPUZHA H. O. - 686 661,
RESIDING AT KIZHAKKE KOYIKKAL HOUSE,
PARAPPURAM P. O., VALLAM KADAVU,
ALUVA - 683 575.
BY ADV. SRI.S.VISHNU
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 14.01.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(CAT) No.112 of 2020 2
ALEXANDER THOMAS & T.R. RAVI, JJ.
------------------------------------------------
O.P.(CAT) No.112 of 2020
[Arising out of order dated 28.09.2018 in O.A.No.1153/2014
of CAT, Ekm. Bench]
--------------------------------------------------
Dated this the 14th day of January, 2021
JUDGMENT
ALEXANDER THOMAS, J.
The prayer in the aforecaptioned Original Petition (CAT) filed under
Articles 226 and 227 of the Constitution of India, is as follows;
"...... ..... to set aside Exhibit P5 order in OA No.180/01153/2014
dated 28.09.2018 of the Central Administrative Tribunal, Ernakulam
Bench, in the interest of justice."
2. Heard Sri P. Vijayakumar, learned Assistant Solicitor
General of India appearing for the petitioners in the OP/ respondents
in the OA before the Tribunal and Sri S.Vishnu, learned Advocate
appearing for the sole respondent in the OP/original applicant before
the Tribunal. At the relevant time, the respondent herein (original
applicant before the Tribunal) was then holding the post of Gramin
Dak Sevak Mail Deliverer (GDSMD), (referred to hereinafter for
convenience as GDS). He had applied for selection in the Limited
Departmental Competitive Examination (LDCE) invited by the Postal
Department concerned for selection and appointment to the post of
Multi Tasking Staff (MTS) under the Aluva Division of the Postal
Department, for the selection year 2013. The original applicant being
an eligible candidate who participated in the said competitive
examination for the selection year 2013 and had secured 80 marks out
of 100 among the eligible candidates who had part taken in the
examination in the Aluva Division, and, another candidate by name
Nisha M.R. had also secured the equal marks, viz, 80 marks in the said
examination. The applicant being senior to the latter and as the latter
candidate was otherwise eligible for reservation turn set apart for
other backward classes (OBC), the 1st petitioner herein, Senior
Superintendent of Post Offices, Aluva Division had then issued
Annexure A1 proceedings dated 13.11.2013 ordering that the original
applicant and the above said Nisha M.R. are declared to have been
selected for appointment in the said Competitive Examination for
promotion to the cadre of MTS held on 20.10.2013 for the vacancies of
the selection year 2013. It is common case that thereafter both the
original applicant and the above said Nisha M.R. had secured
appointment orders to the post of MTS. Annexure A2 is the
appointment order dated 21.11.2013 issued by the appointing
authority in the case of the original applicant in respect of the post of
MTS. It appears that the said Limited Departmental Competitive
Examination conducted on 20.10.2013 was a common selection
examination for GDS candidates for various divisions including Aluva
Division. It appears that there is no complaint as regards the conduct
of the examination or the marks awarded, as far as the selected
candidates in Aluva Division is concerned to which the original
applicant was selected and appointed. Later, it appears that one
Smt.Sunitha K.A., who is a GDS in Alappuzha Division and who had
taken part in the said Common Limited Departmental Competitive
Examination conducted on 20.10.2013 had complained to the Postal
authorities concerned that there was a fault in the answer key
approved and published by the Postal Department for valuation of the
answer scripts in the said examination. It appears that the Postal
authorities had not taken any action on the said complaint of
Smt.Sunitha K.A. Being aggrieved thereby, Smt.Sunitha K.A., who is a
GDS of Alappuzha Division had approached the Central
Administrative Tribunal by filing original application as O.A.No.174 of
2014 praying for directions by the Tribunal to the Postal authorities
concerned to take action for examining the correctness or otherwise of
the answer keys approved and published by the Department which
was the basis for the valuation of the examination process. It appears
that the Tribunal had admitted the said O.A.No.174 of 2014 and no
interim orders were passed thereon. Further, from the pleadings and
materials on record it appears that presumably in view of the
pendency of the said OA, the Postal authorities concerned had
themselves taken action for examining the correctness of the answer
key of the common LDC examination. Presumably, after getting
expert opinion, the Postal Department apprised that there was fault in
one of the standard answers for the answer key approved and acted
upon by the Department in the evaluation process. Pursuant thereto,
revaluation was ordered to be conducted in respect of the answer
scripts of the candidates who had appeared in the said Limited
Departmental Competitive Examination for the selection year 2013.
We are now apprised by Sri S.Vishnu appearing for the original
applicant (respondent herein) that the above said Smt.Sunitha K.A.
who happened to be a GDS in Alappuzha Division secured the benefit
of the said revaluation on account of the rectification of the answer key
and she was duly given appointment as MTS consequent to her getting
more marks in the revaluation process. Further, it is seen that since
the said LDC examination was a common one for all the Divisions in
the Kerala circle, the revaluation process had also affected the
other Divisions concerned. It is the case of the petitioners herein/
Departmental authorities that consequent to such revaluation in
pursuance of the rectification of the answer key, it was found that the
original applicant did not actually deserve the originally awarded 80
marks, but that, he could get only 79 marks out of 100 on the basis of
such revaluation. Further, it is found that the above said Nisha M.R.
and another candidate by name Ajesh U.J. both GDS in Aluva Division
had secured 81 marks each in the said LDC examination consequent to
the revaluation. Thereupon, the petitioners/Postal authorities
concerned had issued Annexure A3 proceedings dated 17.12.2014
notifying the respondent herein (original applicant) that consequent to
the said revaluation, his originally awarded mark was found to be
faulty and that he has secured only 79 marks out of 100 and that the
above said two candidates viz; Smt.Nisha M.R. and Sri Ajesh U.J.
secured 81 marks each and that since only two vacancies have been set
apart for the selection year 2013 for the above said appointment to the
post of MTS, respondent's (original applicant) appointment will have
to be cancelled so as to accommodate Smt.Nisha M.R. as the first
candidate in the unreserved turn and Sri Ajesh U. J. who appears to be
junior to Smt.Nisha M.R. is to be accommodated in the OBC turn. The
crucial and relevant factual aspects of the matter is that the above said
process of detecting alleged mistakes in the answer key and the
declaration that the original applicant has secured only lower marks,
etc. in respect of the already concluded selection year 2013 was made
by the Departmental authorities concerned much after, even the
issuance of the selection notification for the next selection year 2014
as well as even the conduct of the said examination for the selection
year 2014. It is this proceedings at Annexure A3 dated 17.12.2014 that
is challenged by the original applicant by filing the instant
O.A.No.1153 of 2014 before the Central Administrative Tribunal,
Ernakulam Bench. The Tribunal as per the impugned final order
dated 28.09.2018 has finally disposed of the said O.A.No.1153 of 2014
filed by the respondent herein, on the ground that though it is true
that the impugned Annexure A3 order dated 17.12.2014 was issued
consequent to detection of mistake and that the Departmental
authorities may have the power to correct such mistakes, the post in
question is comparatively a lower category one, since it is MTS and
that indisputably the respondent has not contributed anything to the
said mistake or irregularity and that since the above said mistake
correction process has been completed long after the issuance of the
next selection notification for the year 2014 and even the conduct of
the said next selection examination for the selection year 2014, it may
not be right and proper to disturb his appointment and more so
considering his advanced age. Moreover, the Tribunal has placed
reliance on a series of final orders rendered by the Tribunal in such
similar cases which are all pertaining to appointment to the next
higher category of postman. In all those cases mentioned in the
impugned final order rendered by the Tribunal, it appears that the
Tribunal has come to the considered conclusion that though the
applicant concerned had received the appointment order and later it
was found that there was some irregularity in the selection process,
the applicant concerned could not be attributed with having had
anything to do with the alleged irregularities in the selection process
and considering the fact that the post of Postman is comparatively on
the lower category and the competing employees are all low paid
employees in the category of MTS, etc., justice and equity
considerations may warrant necessary directions to ensure that such
appointees are not disturbed at that point of time. It is on this basis
that the Tribunal has rendered the present impugned final order dated
28.09.2018 in the instant O.A.No.1153 of 2014. Incidentally, the
Tribunal has also observed that if there are no posts whatsoever to
accommodate the continuance of the original applicant, then the
Department may consider the creation of supernumerary post to
ensure compliance of the directions not to disturb the continuance of
the original applicant in service as MTS. It is the above said final
order rendered by the Tribunal on 28.09.2018 in O.A.No.1153 of 2014
that is now under challenge before us.
3. We have heard Sri P.Vijayakumar, learned Assistant
Solicitor General of India appearing for the petitioners in the OP and
Sri S.Vishnu, learned counsel appearing for the sole respondent
herein/original applicant before the Tribunal.
4. We had on the previous two occasions requested both sides
to get factual instructions and ascertain as to whether various similar
orders passed by the Central Administrative Tribunal as in Annexure
A7 final order dated 07.08.2013 in O.A.No.1082 of 2012 and Annexure
A8 final order dated 04.08.2015 in O.A.No.755 of 2012 and connected
case as well as the final orders passed by the Tribunal in various other
OAs on which reliance has been placed by the Tribunal in the above
said Annexure A8 as well as the instant impugned final order dated
28.9.2018 in the present OA, have been challenged by the Postal
Departmental authorities. Similar final orders of the Tribunal referred
to in Ext.P5 and Annexure A8 are O.A.No.182 of 2011,
O.A.No.576/2012, O.A.No.755/2012 and various other orders of the
Tribunal referred to in Annexures A7 and A8. It appears that in most
of these cases, the post in question was Postman whereas in the
instant case, the post involved is MTS, which is even inferior to
Postman. We are now apprised by both sides that the Union
Government authorities/Postal Departmental authorities have not
made any challenge to the said consistent final orders passed by the
Tribunal in such similar cases involving lower category posts of
MTS/Postman, etc. by filing either review application before the
Tribunal or O.P.(CAT) under Articles 226 and 227 of the Constitution
of India before the Division Bench of this Court. Therefore, it can be
seen that what has been rendered by the Tribunal is only following the
consistent view taken by the Tribunal mainly out of the equitable and
other legal considerations to grant benefits in such situations of
hardships and difficulties caused on account of situations for which
the applicant concerned cannot be attributed with any responsibility
and also considering the fact that the post in question is Postman in
those cases, is lower category post and the feeder service for
appointment is from the still lower category of MTS and taking note of
the fact that they are all serving employees, fastly approaching the last
span of their age and service, etc.
5. After anxious consideration of the instant case, we are not
persuaded to take the view that the aforesaid considered view
rendered by the Tribunal in the instant Ext.P5 final order dated
28.09.2018 in O.A.No.1153 of 2014 is highly perverse, arbitrary or
unreasonable. The impugned order has been rendered by the Tribunal
by only consistently following the views taken in such similar cases of
hardship and that too only regarding lower category posts like,
Postman, MTS, etc. and that too in cases where the applicant
concerned could not be attributed with any fraud in the mistake or
irregularities, etc. We are told that in the case in Annexure A8, the
selection was sought to be redone on the ground of irregularities in the
selection process on the basis of a Vigilance enquiry conducted by the
Postal Department. The post involved therein is Postman. After
hearing both sides, we are constrained to take the view that the degree
of equitable consideration based on justice, equity and good
conscience in the instant case would certainly stand on a higher
pedestal compared to the case as in Annexure A8. At any rate, it
would require equal or similar treatment. This we say so, for reasons
more than one. Firstly, the petitioners have no case whatsoever that
the applicant was in any way responsible for the mistake. Indisputably
the mistake was only on account of the answer key which was initially
approved and published by the Postal Departmental authorities and
acted upon by them for the examination process. The applicant was
given the benefit of the said selection process and he was not only
selected but also granted appointment order. Further, there was no
complaint whatsoever regarding the examination process as far as the
competing candidates in the present Aluva Division is concerned and
the solitary complaint was in respect of a candidate in Alappuzha
Division. If at all the norms had permitted such revaluation, then it
must be the bounden duty of the Postal authorities concerned to have
considered the complaints against answer key, immediately after the
announcement of the answer key and should have laid down some
strict time line for submissions of complaints and such complaints
should have been examined with all expedition, so that the mistakes, if
any, in the answer key could have been detected and necessary
revision made with all expedition, preferably at least before granting
appointment order pursuant to the said selection process. At any rate,
such action for re-evaluation and declaration of the revised results
should have been effected at least prior to the issuance of the selection
notification for the next selection year 2014 and, at any rate, well
before the conduct of the examination for the next selection year 2014.
Unfortunately, this has not been done. If this process has been done
with all expedition, then a candidate like the original applicant could
have certainly endeavoured to give his best at least in the next
selection examination. Pursuant to the selection process for the year
2013, the results were announced as per Annexure A1 dated 13.11.2013
and the original applicant was given appointment order as per
Annexure A2 dated 21.11.2013. It was long thereafter that the process
of revaluation revision of the selection process is attended to be
finalised by the issuance of Annexure A3 notice dated 17.10.2014 by
which time the next selection process including the next selection for
the year 2014 are already over. Therefore, we are of the firm view that
the level of consideration based on equity, justice and good conscience
would be on a higher pedestal in this case compared to the other cases
or at any rate on an equal basis.
6. Further, after hearing Sri P.Vijayakumar, learned Assistant
Solicitor General of India appearing for the petitioners, we will
certainly appreciate the concern of the learned Assistant Solicitor
General of India appearing on behalf of the Postal Departmental
authorities that the impugned order should not be seen as limiting the
power of the selection authorities in correcting patent mistakes and in
revising selection process, etc. After hearing both sides, we are
constrained to take the view that the views taken by the Tribunal in
the present case as well as in the other cited cases cannot be construed
as in any manner limiting the power of the authorities in effecting
correction of mistakes obtained in the selection process and revising
the said selection process, more so, particularly, if such process of
revaluation is explicitly provided for in the scheme and norms of the
examination. The view taken by the Tribunal is only to the effect that
in cases of lower level appointments as in the instant one, like Multi
Tasking Staff (MTS), Postman, etc., where the irregularities in the
selection process cannot in any manner be attributed to the applicant,
then some level of considerations based on equity, justice and good
conscience may be called for, which vestage of discretionary power is
certainly vested with the Tribunal, being the court of first instance to
exercise the plenary powers under Article 226 of the Constitution of
India in view of the provisions made by the Constitutional amendment
by the engraftment of Article 323A of the Constitution of India and as
explicitly incorporated in the legislative policy of the Parliament by the
enactment of the Administrative Tribunals Act, 1995. The said vestage
of discretion conferred on the Tribunal cannot be said to have been
exercised in a wrong, illegal or perverse manner in the present case. It
is also now well established that in cases as in the present one, which
is mainly based on appreciation of various factual aspects, then if a
view is taken by the court of first instance like the Tribunal and so long
as the said view cannot be branded as manifestly or palpably arbitrary,
unreasonable or perverse, ordinarily even intra-court appellate
interference may not be called for or justified. Of course, where there
are serious questions of law and other aspects, which require a
corrected perspective, a different approach could be taken, be it in
intra-court appellate jurisdiction or in the present jurisdiction of
judicial review and judicial superintendence as conceived under
Articles 226 and 227 of the Constitution of India. Therefore, the said
considered view taken by the Tribunal, which is only on the basis of
the application of the consistent orders passed by the Tribunal in such
similar cases to the admitted facts of this case, cannot be branded by
us as perverse or unreasonable and we are not in a position to
interfere with the main direction of the Tribunal. However, we will
certainly appreciate the submission made by Sri P.Vijayakumar,
learned Assistant Solicitor General of India appearing for the Postal
Department, that the direction issued by the Tribunal even to create
supernumerary post was not proper or justifiable. We are by now
apprised by Sri S.Vishnu, learned counsel appearing for the
respondent (original applicant) that apart from the two vacancies set
apart for the instant selection year 2013, many other vacancies are
available for the next selection years and are pending for appointment.
Therefore, it appears that the applicant can be easily accommodated in
the next available vacancy, after the appointment of the aforesaid two
other incumbents. Further, it appears that pursuant to the selection
made as per Annexure A1 dated 13.11.2013, not only the applicant but
also the said Nisha M.R. were given appointment to the post of MTS
and the appointment order given in the case of the original applicant is
one at Annexure A2 dated 21.11.2013. Therefore, after the revision of
the selection process as reported in Annexure A3 dated 17.12.2014, it
appears that the other candidate concerned, viz, Sri Ajesh U.J. would
also have been given appointment to one of the then available
vacancies, but possibly for vacancy which is set apart for the next
selection year or that for the next selection years concerned. Thus,
prima facie, it appears that all the three candidates concerned, viz; the
original applicant, Sri Vinod N.R. and the other two candidates, viz,
Smt.Nisha M.R. and Sri Ajesh U.J. have been continuing in service
pursuant to the appointment orders given to them. Therefore, all what
would be required is only to regularise the appointment of the original
applicant made in terms of Annexure A2 order dated 21.11.2013, as
indicated hereinabove and in such a scenario there will not be any
necessity for creation of any supernumerary posts. Further, the
Tribunal has not issued a mandatory direction that a post of
supernumerary post should necessarily be created. All what has been
incidentally observed by the Tribunal is that the question of creation
of supernumerary post will be taken into consideration, if so really
warranted and necessary.
7. Sri P.Vijayakumar, learned Assistant Solicitor
General of India appearing for the petitioners has pointed out that
serious and pertinent aspects in this case, have not been considered by
the Tribunal. As per the impugned final order in O.A.No.1153 of 2014,
the Tribunal has in paragraph 11 directed not merely that the original
applicant should be permitted to continue in service without
disturbance, but also that his seniority in the category of MTS will be
reckoned from the date he joined duty presumably in terms of
Annexure A2 dated 21.11.2013.
8. After hearing both sides, we are of the firm view that the
above said plea made by Sri P.Vijayakumar learned Assistant Solicitor
General of India appearing for the petitioners has to be countenanced.
There can be no two ways that after the revision of the selection
process, the other two candidates Smt.Nisha M.R. and Sri Ajesh U.J.,
alone could have been treated as the beneficiaries of the regular
selection process. The original applicant's continuance could be only
on the basis of the equitable directions issued by the Tribunal in the
impugned order. Therefore, it is made clear that though appointment
of the original applicant is to be regularised, his seniority has to be
reckoned as being below both the above said regularly selected
candidates after the selection process, viz, Smt.Nisha M.R. and Sri
Ajesh U.J. and as against the first available vacancy to which the
original applicant could be accommodated and regularised subject to
the above said direction regarding seniority.
9. For the aforesaid reasons, we find no reasons to interfere
with the main directions of the Tribunal. However, the other
afore directions issued by the Tribunal require interdiction and we
order that the impugned Ext.P8 final order dated 28.09.2010
rendered by the Central Administrative Tribunal Bench in
O.A.No.1153 of 2014 will stand modified in terms of the observations
and findings made by this Court hereinabove.
The above OP(CAT) will stand disposed of.
Sd/-
ALEXANDER THOMAS,
JUDGE
Sd/-
T.R. RAVI,
JUDGE
dsn
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF OA NO.180/01153/2014 FILED
BY THE PETITIONER DATED 29.12.2014
BEFORE THE CAT, ERNAKULAM.
EXHIBIT P1 (A3) TRUE COPY OF THE ORDER
NO.B1/8/RECTT/MTS/2013 DATED 17.12.2014
ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P1 (A1) TRUE COPY OF THE MEMO
NO.B1/8/RECTT/MTS/2013 DATED 13.11.2013
ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P1 (A2) TRUE COPY OF THE ORDER NO.PF/NRV DATED
21.11.2013 ISSUED BY THE POST MASTER,
MUVATTUPUZHA.
EXHIBIT P1 (A4) TRUE COPY OF THE REQUEST DATED
19.12.2014 TO THE 1ST RESPONDENT.
EXHIBIT P1 (A5) TRUE COPY OF THE INFORMATION SOUGHT
UNDER TRI ACT AS PER REQUEST DATED
19.12.2014 TO THE 1ST RESPONDENT.
EXHIBIT P1 (A6) TRUE COPY OF THE REPLY DATED 26.12.2014
TO THE 1ST RESPONDENT.
EXHIBIT P1 (A7) TRUE COPY OF THE ORDER DATED 07.08.2013
IN O.A.NO.1082/2012 OF THE HON'BLE
TRIBUNAL.
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED
BY THE PETITIONER IN OA
NO.180/01153/2014 DATED 9.7.2015.
EXHIBIT P3 TRUE COPY OF THE M.A.NO.905 OF 2017
DATED 28.08.2017 FILED BY THE APPLICANT
BEFORE THE CAT, ERNAKULAM BENCH.
EXHIBIT P3 (A8) TRUE COPY OF THE ORDER DATED 04.08.2015
IN O.A.NO.755/2012 AND CONNECTED CASES
OF THE HON'BLE TRIBUNAL.
EXHIBIT P4 TRUE COPY OF THE REPLY STATEMENT IN
M.A.NO.905 OF 2017 DATED 20.12.2017
FILED BEFORE THE CAT, ERNAKULAM BENCH.
EXHIBIT P5 TRUE COPY OF THE ORDER IN OA
NO.180/01153/2014 DATED 28.09.2018
ISSUED BY THE HON'BLE CAT, ERNAKULAM
BENCH.
