Union Of India vs A.Mohandas
2024 Latest Caselaw 15242 Ker

Kerala High Court

Union Of India vs A.Mohandas on 5 June, 2024

Author: Amit Rawal

Bench: Amit Rawal

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
           THE HONOURABLE MR. JUSTICE AMIT RAWAL
                             &
           THE HONOURABLE MR. JUSTICE EASWARAN S.
 WEDNESDAY, THE 5TH DAY OF JUNE 2024 / 15TH JYAISHTA, 1946
                  OP (CAT) NO. 108 OF 2017
AGAINST THE ORDER/JUDGMENT DATED 24.06.2016 IN OA NO.85 OF
2014 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
PETITIONERS/RESPONDENTS:
    1     UNION OF INDIA
          REPRESENTED BY ITS SECRETARY, MINISTRY OF
          COMMUNICATIONS, NEW DELHI.
    2    DIRECTOR GENERAL OF POSTS
         DAK BHAVAN, NEW DELHI.
    3    CHIEF POSTMASTER GENERAL
         KERALA CIRCLE, THIRUVANANTHAPURAM.
    4    SENIOR SUPERINTENDENT
         RMS 'TV' DIVISION, THIRUVANANTHAPRUAM 695 036.
    5    SUPERINTENDENT
         RMS, 'CT' DIVISION, KOZHIKODE.
         BY ADVS.
         ASSISTANT SOLICITOR GENERAL
         SRI.T.V.VINU, CGC

RESPONDENTS/APPLICANTS:
    1     A.MOHANDAS
          S/O.THE LATE ARU, WORKING AS PART-TIME SCAVENGER,
          SUB RECORD OFFICER, 'RMS' CT DIVISION,PALAKKAD
          RESIDING AT KENNOTH PARAMBU, CIVIL STATION BACK,
          PALAKKAD 678 001.
    2    V.SINDHU
         S/O.THE VELA WORKING AS PART-TIME SCAVANGER,SUB
         RECORD OFFICE, OTTAPPALAM,RESIDING AT ERAPPAKODE
         HOUSE, THEKKUMURY, KELLEPPULLY, PALAKKAD 678 005.
         BY ADVS.
         SRI.ANTONY MUKKATH
         SRI.O.V.RADHAKRISHNAN SR.
         SMT.K.RADHAMANI AMMA

     THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 05.06.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(CAT) 108/2017

                                      2


                    AMIT RAWAL & EASWARAN S., JJ.
                     ------------------------------------
                          OP (CAT) No.108 of 2017
                      -------------------------------------
                   Dated this the 5th day of June, 2024

                              JUDGMENT

Easwaran S., J.

The applicants, who are presently working as part time

scavengers under "RMS CT Division" under the administrative

control of the 1st respondent was selected and appointed as Part

Time Scavenger as per memos dated 31.10.1998 (Annexure-A1)

and 16.5.2000 (Annexure-A2), respectively. Later, the

Department of Posts (Group 'D' Posts) Recruitment Rules, 2002,

Annexure-A3, were issued by the President in exercise of the

power conferred by the proviso to Article 309 of the Constitution

of India and in supersession of the Indian Posts and Telegraphs

(Class-IV Posts) Recruitment Rules, 1970. According to the said

Rules, the vacancies shall be filled up by selection-cum-seniority

basis in the manner prescribed therein. Annexure-A3

Recruitment Rules were superseded by Annexure-A6,

Department of Posts Multi Tasking Staff Recruitment Rules, 2010,

which came into force with effect from 20.12.2010. OP(CAT) 108/2017

2. The applicants contended that there were twelve (12)

vacancies for Group-D posts existing immediately before the date

of coming into force of Annexure-A6 Recruitment Rules, and that

the inaction on the part of the respondents in not initiating steps

for regular promotion from Gramin Dak Sevaks (GDS) like the

applicants to Group-D posts against the unfilled vacancies was

violative of the provisions contained under Articles 14 and 16 of

the Constitution of India.

3. The respondents, petitioners herein, appeared and

filed their reply statement pointing out that as per the

Recruitment Rules, though the vacancies were to be filled up by

selection-cum-seniority, there were sufficient number of GDS for

consideration for appointment as Multi Tasking Staff (MTS) and

the question of offering the vacancies to part time casual

labourers does not arise for consideration. The right of the

applicants to claim promotion under the Recruitment Rules was

emphatically denied, in view of the fact that they were appointed

only as part time casual labourers.

4. Considering the contentions raised by the parties, the

learned Central Administrative Tribunal allowed the Original OP(CAT) 108/2017

Application directing the petitioners/respondents to issue orders

promoting the applicants 1 & 2 to Group-D post in the order of

their seniority against the existing vacancies reserved for casual

labourers of RMS TV Division, which existed in 2009 and prior to

to that date and reserved for casual labourers of RMS TV

Division, as admissible under the roster points which fall under

25% quota set apart for casual labourers under Annexure-A3

Recruitment Rules, 2002. The said order is under challenge in

the present original petition.

5. We have heard Sri.T.V.Vinu, learned Central

Government Counsel appearing for the petitioner/respondents

and Sri.Antony Mukkath, the learned counsel appearing for the

respondents/applicants.

6. Sri.T.V.Vinu, learned Central Government Counsel

appearing for the petitioners would contend that the Tribunal

erred egregiously in granting the reliefs in the Original

Application as prayed for, essentially since the applicants were

only recruited as part time casual labourers and they are not

eligible to be considered in terms of the Recruitment Rules. He

would further place reliance on Annexure-A3 Rules, especially

Column No.11, which prescribed the method of appointment, OP(CAT) 108/2017

wherein it is prescribed that 25% of the vacancies remaining

unfilled after retirement of employees mentioned at Sl.No.2, shall

be filled up by selection-cum-seniority in the following order:

(a) by casual labourers with temporary status of the

recruiting division or unit failing which,

(b) by full time casual labourers of the recruiting

division or unit, failing which,

(c) by full time casual labourers of neighbouring division

or unit failing which,

(d) by part time casual labourers of the recruiting

division or unit failing which,

(iii) by direct recruitment.

7. On the other hand, the learned counsel appearing for

the respondents/applicants would contend that going by the

Explanation or definition given to the casual labourers, there can

be no doubt that the applicants have served for more than four

hundred and eighty (480) days as casual labourers and as such

for the purpose of recruitment, they must be deemed to have

completed one year service as full time casual labourers.

Therefore, on a conjoint reading of Annexures-A3 and A9, there

can be no doubt that the respondents/applicants are entitled to OP(CAT) 108/2017

be considered as full time casual labourers, thereby

entitling them to claim the benefit of Annexure-A3 Recruitment

Rules.

8. We have considered the rival submissions raised

across the bar.

9. Going by the averments contained in the Original

Application and a perusal of Annexures-A1 and A2 appointment

orders issued by the Office of the Sub Record Officer, RMS CT

Division, Palakkad -2, it become evidently clear that 1 st and 2nd

applicants were appointed as part time scavenger and part time

sweeper, respectively, with effect from the respective dates. The

specific stand taken by the petitioners/respondents before the

Central Administrative Tribunal was that there were sufficient

number of candidates available for consideration for

appointment, and therefore, the question of offering the

vacancies to the part time casual labourers does not arise at all

for consideration. Still further, it is pointed out that under

Annexure-A6 Rules, which came into effect on 20.12.2010, 25%

of the vacancies are to be filled up by department recruitment

from GDS based on selection-cum-seniority and the next 25% by

direct recruitment on the basis of competitive examination OP(CAT) 108/2017

restricted to GDS and 25% by casual labourers appointed on or

before 1.9.1993. The relevant extract of Annexure-A6 (column

No.11) reads as follows:

"(i) (a) 25% by appointment of Casual Labourers conferred with temporary status on the basis of selection-cum-seniority failing which by;

(b) appointment of existing Casual Labourers engaged on or before 1.9.1993 working for eight full hours in a day on the basis of selection cum seniority failing which by;

(c) appointment of existing part time Casual Labourers, engaged on or before 1.9.1993, on the basis of selection-cum-seniority failing which by;

(d) direct recruitment as per the scheme circulated by the Department of Posts from time to time;

(ii) 75% by direct recruitment as per the scheme circulated by the Department of Posts from time to time."

10. Evidently, as per the appointment orders produced

before the Central Administrative Tribunal, the

respondents/applicants were appointed after 01.09.1993. On a

reading of the order impugned, it becomes evidently clear that a

wrong question was posed before the Tribunal which resulted in

the impugned order. The Tribunal completely went wrong in

addressing the crucial issue as to whether the vacancies were

liable to be filled up by considering the appointment of the OP(CAT) 108/2017

applicants who were temporarily appointed as casual labourers

by treating them as full time casual labourers. Even assuming

for a moment, the contention of the respondents/applicants was

liable to be accepted and they were eligible to be considered for

full time casual labourers, but the Tribunal did not address itself

on the crucial issue as to whether, the Rules entitled the

applicants to claim appointment even though they were

appointed after 01.09.1993.

In view of the above, we are of the considered view that the

Central Administrative Tribunal went wrong in allowing the claim

in the Original Application. Even though the Recruitment Rules

did not apply to the applicants, the Tribunal exceeded in its

jurisdiction and granted the relief to the applicants which they

were not entitled to claim. Accordingly, we allow the Original

Petition, set aside the order of the Central Administrative Tribunal

in O.A.No.85/2014 dated 24.6.2016 and dismiss the Original

Application. No order as to costs.

Sd/-

AMIT RAWAL JUDGE

Sd/-

EASWARAN S. JUDGE jg OP(CAT) 108/2017

APPENDIX OF OP (CAT) 108/2017

PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF THE MEMO NO. PT/RECRUITS/98 DATED 31.10.1998 OF THE SUB RECORD OFFICER, RMS'CT'DIVISION, OTTAPALAM.

ANNEXURE A2 TRUE COPY OF THE MEMO NO. PT/RECTT/SRO OTP DATED 16.05.2000 SUB RECORD OFFICER, RMS'CT' DIVISION, OTTAPALAM.

ANNEXURE A3 TRUE COPY OF THE RELEVANT PORTION OF THE DEPARTMENT OF POSTS (GROUP D POSTS) RECRUITMENT RULES, 2002 AS PER NOTIFICATION DATED 23.01.2002.

ANNEXURE A4 TRUE COPY OF THE LETTER NO. 37-15/2001 SPB-1 DATED 30.01.2002 OF THE ASST. DIRECTOR GENERAL (SPN).

ANNEXURE A5 TRUE COPY OF THE COMMUNICATION NO. RTI 2005/52/13 DATED 29.10.2013 OF THE 1ST RESPONDENT.

ANNEXURE A6 TRUE COPY OF THE DEPARTMENT OF POST MULTI-

TASKING STAFF RECRUITMENT RULES 2010 AS PER GSR NO.984(E) DATED 12.12.2010 ALONG WITH COVERING LETTER NO. 37-33/2009-PB-I DATED 28.01.2011 OF THE 5TH RESPONDENT.

ANNEXURE A7 TRUE COPY OF THE JUDGMENT DATED 23.12.2009 IN WPC NO. 28574 OF 2009 AND CONNECTED CASES OF THE HONOURABLE HIGH COURT OF KERALA.

ANNEXURE A8 TRUE COPY OF THE ORDER DATED 20.08.2013 IN OA NO. 536/2012 OF THIS HONOURABLE TRIBUNAL. ANNEXURE A9 TRUE COPY OF THE GOVERNMENT OF INDIA LETTER NO. 65-24/88-SPB.I DATED 17.05.1989.

ANNEXURE A10 TRUE COPY OF THE COMMUNICATION NO. D4/RTI/SRM DATED 05.11.2014 OF THE 1ST RESPONDENT ALONG WITH THE APPLICATION DATED 29.09.2014. EXHIBIT P1 TRUE COPY OF THE OA NO.180/00085/2014 DATED 26/1/2014 FILED BY THE RESPONDENTS BEFORE THE CAT, ERNAKULAM BENCH EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED 12/3/2014, FILED BY THE PETITIONERS OP(CAT) 108/2017

EXHIBIT P3 TRUE COPY OF THE REJOINDER DATED 7/6/2015 FILED BY THE APPLICANT EXHIBIT P4 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT DATED 3/7/2015 FILED BY THE PETITIONERS EXHIBIT P5 TRUE COPY OF THE ADDITIONAL REJOINDER DATED 26/9/2015 FILED BY THE RESPONDENTS EXHIBIT P6 TRUE COPY OF THE SECOND ADDITIONAL REPLY STATEMENT DATED 30/10/2015 FILED BY THE PETITIONERS EXHIBIT P7 TRUE COPY OF THE ORDER IN OA NO.180/85/2014 DATED 24/6/2016 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH