advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Tuesday, August 16, 2016

Service Matter - whether the appointment of the appellants to the post of Postman is by way of direct recruitment or by promotion.= the selection of Extra Departmental Agents or Gramin Dak Sevaks to the post of Postman under Column 11(2)(ii) of the Recruitment Rules is only by way of direct recruitment and not by way of promotion, the question of whether reservation for candidates belonging to OBC category is allowed becomes easier to answer. It has now been well settled by a nine judge Bench of this Court in the case of Indra Sawhney v. Union of India[5] that reservation for candidates belonging to OBC category is permissible in cases of direct recruitment. In view of the reasoning and conclusions recorded by us as above, the order of the Tribunal as well as the impugned judgment and order of the High Court are set aside. There is no infirmity in the appointment of the appellants to the post of Postman. The Appeals are accordingly allowed. No costs.

                               NON REPORTABLE

  IN THE SUPREME COURT OF INDIA                             CIVIL APPELLATE
                                JURISDICTION
                  CIVIL APPEAL NO. 90 OF 2015

 Y. NAJITHAMOL & ORS.                    ………APPELLANTS

                                     Vs.

 SOUMYA S.D. & ORS.                            ……RESPONDENTS
                                    WITH
                        CIVIL APPEAL NO. 91  OF 2015



                               J U D G M E N T


V. GOPALA GOWDA, J.

The present appeals arise out of the  common  impugned  judgment  and  order
dated 20.12.2011 passed by the High Court  of  Kerala  at  Ernakulam  in  OP
(CAT) No. 1095 of 2011 (S) and connected petitions, whereby the  High  Court
upheld the order of the Central  Administrative  Tribunal,  Ernakulam  Bench
(hereinafter  referred  to  as  the  “Tribunal”),  which   held   that   the
appointment from GDS/EDA to the post of Postman is  only  by  promotion  and
not  direct  recruitment,  and  that  because  of  this  reason,   the   age
restriction under Column No. 7(2)  of  the  Department  of  Posts  (Postman/
Village Postman  and  Mail  Guards)  Recruitment  Rules,  1989  (hereinafter
referred to as the “Recruitment Rules”) as well as reservation  against  the
OBC category is not permissible.

 Since a common question of law arises in both these appeals, for  the  sake
of convenience, we refer to the facts of the Civil Appeal No.  90  of  2015.
The facts of the case required to appreciate  the  rival  legal  contentions
advanced on behalf of the parties are stated in brief as hereunder:

Appellant nos. 1-4 belong to the  OBC  category.  On  30.11.1992,  appellant
no.3 commenced service as a  Gramin  Dak  Sevak  (GDS)  MD.  Appellant  no.2
commenced service as GDS MD on 16.11.1998, appellant no.4 on 22.08.2001  and
appellant no.1 on 08.01.2003. In 2009, the Postmaster  General  notified  11
vacancies for the post of Postman/Mail Guard. On 27.02.2010,  all  the  four
appellants were  appointed  to  the  post  of  Postman,  after  passing  the
departmental examination for the same. Challenging  the  said  appointments,
Respondent nos. 1 and 2 filed OA 436 of 2010  before  the  Tribunal  on  the
ground that the appointment to the post of Postman is by  way  of  promotion
and, therefore, there can be no reservations for persons belonging  to  OBCs
for the said posts. It was contended before the Tribunal that the  selection
and appointment of the appellants herein under GDS merit  quota  overlooking
the higher marks obtained by the respondents herein  on  the  basis  of  the
examination held on 20.12.2009 is illegal and arbitrary and  that  the  same
is violative of Articles 14, 16 and 21 of the  Constitution  of  India.  The
Tribunal, adjudicating the essential question as to whether the  recruitment
of GDS to the cadre of Postman through  departmental  examination  is  merit
based selection on promotion or not, held as under:
“If the Recruitment Rules for Postman/  Mail  Guard  are  read  keeping  the
entire scheme of promotion in view then the method of recruitment of GDS  to
the cadre of Postman through departmental examination is to  be  treated  as
merit based selection on promotion only.  Admittedly,  the  reservation  for
the OBC category will not apply to the recruitment of GDS to  the  cadre  of
Postman in the instant O.A. Consequently,  the  nature  of  the  unfulfilled
unreserved vacancies in the departmental  quota  when  added  to  the  merit
quota of GDS will remain the same as  unreserved.  Therefore,  there  is  no
justification  for  transferring  the  unreserved  vacancies  to   the   OBC
category. That being so, the appointment of the party respondents 4 to 7  is
against unreserved vacancies. This appointment is legally untenable  because
the claim of the applicants for appointment  against  unreserved  vacancies,
on account of their having higher merit than the part respondents cannot  be
ignored.”

The Tribunal further held that the order of the Full Bench of  the  Tribunal
passed in  O.A.  No.  807  of  1999,  dated  03.11.1999,  holding  that  the
appointment of Extra Departmental Agents to the post of Postman was  by  way
of direct recruitment and not promotion was not applicable to the  facts  of
the instant case. It was distinguished  on  the  ground  that  the  question
before the Full Bench was with respect to filling up of those 25%  of  total
vacancies notified for the post of Postman, which were to be filled  on  the
basis  of  seniority,  and  thus,  pertained  to  Column  11(2)(i)  of   the
Recruitment Rules, whereas the controversy in  the  instant  case  was  with
respect to the other 25% of the total vacancies, which were to be filled  on
the basis of merit in the departmental examination and  thus,  pertained  to
Column 11(2)(ii) of the Recruitment Rules.
Aggrieved of the order  of  the  Tribunal,  the  appellants  challenged  the
correctness of the same by way of filing a Writ  Petition  before  the  High
Court of Kerala at Ernakulam. The Division Bench of the High Court  came  to
the conclusion that a reading of Columns 11(1) and (2)  of  the  Recruitment
Rules does not support the claim that appointments to  the  said  posts  are
being made by way of direct recruitment instead of promotion.  The  Division
Bench of the High Court held as under:
“We are only concerned with Col.11 (1), 11(2)(i) and 11(2)(ii).  The  entire
vacancies as of now is divided into two portions,  i.e.  50%  could  not  be
made by promotion  from  Group  D  on  the  basis  of  their  merit  in  the
departmental examination, then the unfulfilled vacancies would go  to  Extra
Departmental Agents on the basis  of  the  rank  list  in  the  departmental
examination. Then among the other 50%, 25% would go to persons based on  the
seniority who need not take any departmental examination and for  that  25%,
if candidates are not sufficient for consideration to the  post  of  Postman
based on the seniority, the rest will again go to Extra Departmental  Agents
based on the merit in the rank list in the  departmental  examination,  then
the other 25% from among the Extra Departmental Agents based  on  the  merit
in the departmental examination. If still any vacancies are available,  from
one recruiting division to another postal division is also contemplated  and
after exhausting that process, if the posts are still remain unfilled  again
from one postal division located in  the  same  station  to  another  postal
division located in the circle. After exhausting the  exercise  contemplated
under Col.11 (1) to (4), if any posts  are  vacant,  then  the  question  of
direct recruitment from the  nominees  of  Employment  Exchange  comes  into
play. Reading of Column 11(2) to  (4),  nowhere  it  refers  to  any  direct
recruitment as such. It only says by promotion so far  as  Group  D  and  if
candidates are not sufficient for promotion in Group  D,  then  it  goes  to
Extra Departmental Agents on the basis of merit in the examination.  If  the
intention were to be by promotion only from Group  D  candidates,  then  the
unfilled from the category  under  Column  11(1)  ought  not  to  have  been
earmarked for  Extra  Departmental  Agents  based  on  their  merit  in  the
Departmental examination.”

The High Court  accordingly  dismissed  the  Writ  Petitions  filed  by  the
appellants herein questioning the correctness of the  order  passed  by  the
Tribunal. Hence the present appeals.
We have heard Mr. V. Giri, the learned senior counsel  appearing  on  behalf
of the appellants in the Civil Appeal 90 of 2015 and Mr. N.K. Kaul,  learned
Additional Solicitor General appearing on behalf of Union of India  and  Dr.
K.P. Kylashnath Pillay, learned senior advocate appearing on behalf of  some
of the respondents.

The essential question of law which arises  for  our  consideration  in  the
instant case is whether the appointment of the appellants  to  the  post  of
Postman is by way of direct recruitment or by promotion.

We first turn our attention to the relevant rules at  play  in  the  instant
case, which are the Recruitment Rules. The Schedule to the said  Recruitment
Rules specifies the method of recruitment, age  limit,  qualifications  etc.
relating to appointments to the said posts. Column 1 specifies the  name  of
the post as Postman/Village Postman, and Column  3  specifies  it  to  be  a
Group ‘C’ post.

Column 11 of the Recruitment Rules which is at the heart of the  controversy
in the present case, reads as under:
“Method of recruitment whether by direct recruitment or by promotion  or  by
deputation/transfer and percentage of the vacancies to be filled by  various
methods :-
50% by promotion, failing which by Extra Departmental Agents  on  the  basis
of their merit in the Departmental Examination.

50% by Extra Departmental Agents of the recruiting division of Unit, in  the
following manner, namely:
25%  of  vacancies  of  postman  shall  be  filled  up  from  amongst  Extra
Departmental Agents with a minimum of 5 years of service  on  the  basis  of
their seniority, failing which by  the  Extra  Departmental  Agents  on  the
basis of Departmental examination.
(ii) 25% from amongst Extra Departmental Agents on the basis of their  merit
in the departmental examination.

If the vacancies remained unfilled by EDAs of the recruiting division,  such
vacancies may be so filled by EDAs of the postal  division  failing  in  the
Zone of Regional Director.

If the vacancies remained unfilled by EDAs  of  the  recruiting  units  such
vacancies may be filled by EDAs of the postal divisions located at the  same
station.  Vacancies  remaining  unfilled  will  be  thrown  upon  to   Extra
Departmental Agents in the region.

Any vacancy remaining unfilled shall be  filled  up  by  direct  recruitment
through the nominees of the Employment Exchange."


A careful reading of the above Column makes it clear  that  essentially  two
‘pools’ are envisaged from which appointments to the post of Postman can  be
made. One is the pool of those candidates who are being  promoted,  and  the
other is the pool of the Extra Departmental Agents who are appointed to  the
said post after passing a departmental examination. 50%  of  the  candidates
being appointed to the post of Postman are selected  by  way  of  promotion.
The remaining 50% of the candidates are selected in two  ways.  25%  of  the
candidates are selected from amongst the Extra Departmental  Agents  on  the
basis of their seniority in  service,  and  the  other  25%  candidates  are
selected from the Extra Departmental Agents based  on  their  merit  in  the
Departmental Examination.
Further, Column 12 of the Recruitment Rules reads as under:
“In case of recruitment by promotion/deputation/transfer  grade  from  which
promotion/deputation/transfer to be made:

Promotion from Group 'D' officials who have put in three  years  of  regular
and satisfactory service as on the closing date for receipt of  applications
through a Departmental examination.

Extra Departmental Agents through a Departmental Examination.

Direct recruitment through a Departmental Examination."


The post in the instant case, that of Postman is a Group ‘C’ post. Thus,  it
is quite natural that ‘promotion’ to the said post can happen only from  the
feeder  post,  which  in  the  instant  case,  are  the  Group  ‘D’   posts.
Admittedly, GDS is not a Group ‘D’ post,  and  members  of  GDS  are  merely
Extra Departmental Agents.
At this stage, it is also useful to refer to the decision of this  Court  in
the case of C.C. Padmanabhan & Ors. v. Director  of  Public  Instructions  &
Ors.[1], wherein it was held as under:
“This definition fully conforms to the meaning of 'promotion' as  understood
in ordinary parlance and also as a term frequently used in  cases  involving
service laws. According to it a person already holding a post would  have  a
promotion if he is appointed to another post which satisfies either  of  the
following two conditions, namely-
(i) that the new post is in a higher category of the same service  or  class
of service;
(ii) the new post carries a higher grade in the same service or class.”

Promotion to a post, thus, can only happen when  the  promotional  post  and
the post being promoted from are a  part  of  the  same  class  of  service.
Gramin Dak Sevak is a civil post, but is not a part of the  regular  service
of the postal department. In  the  case  of  Union  of  India  v.  Kameshwar
Prasad[2], this Court held as under:
“2. The Extra Departmental Agents system in  the  Department  of  Posts  and
Telegraphs is in vogue since 1854. The object underlying it is to  cater  to
postal needs of the rural communities dispersed in remote areas. The  system
avails of the services of schoolmasters,  shopkeepers,  landlords  and  such
other persons in a village who have the faculty of  reasonable  standard  of
literacy and adequate means of  livelihood  and  who,  therefore,  in  their
leisure can assist the Department by way of  gainful  avocation  and  social
service in ministering to the  rural  communities  in  their  postal  needs,
through maintenance of simple accounts and adherence to  minimum  procedural
formalities, as prescribed by the Department for the purpose. [See:  Swamy's
Compilation  of  Service  Rules  for  Extra  Departmental  Staff  in  Postal
Department p. 1.]”

Further,  a  three-judge  Bench  of  this  Court  in   the   case   of   The
Superintendent of Post Offices & Ors. v. P.K. Rajamma[3] held as under:
“It is thus clear that an extra departmental agent is not  a  casual  worker
but he holds a post under the administrative control of  the  State.  It  is
apparent from the rules that the employment of an extra  departmental  agent
is in a post which exists "apart from" the person who happens to fill it  at
any particular time. Though  such  a  post  is  outside  the  regular  civil
services, there is no doubt it is a post under the State.  The  tests  of  a
civil post laid down by Court in Kanak  Chandra  Dutta's  case  (supra)  are
clearly satisfied in the case of the extra departmental agents.”
                  (emphasis laid by this Court)

A perusal of the above judgments of this Court  make  it  clear  that  Extra
Departmental  Agents  are  not  in  the  regular  service  of   the   postal
department,  though  they  hold  a  civil  post.  Thus,  by  no  stretch  of
imagination can the post of GDS be envisaged to be a feeder  post  to  Group
‘C’ posts for promotion.
A Full Bench of the Ernakulam Bench of the Central  Administrative  Tribunal
in the case of M.A. Mohanan v. The Senior Superintendent of Post  Offices  &
Ors.[4], had the occasion to  consider  a  similar  question.  The  majority
opinion of the Tribunal held as under:
“As the name itself indicates, EDAs are  not  departmental  employees.  They
become departmental employees from the date of their regular  absorption  as
such. And promotions are only for departmental  employees.  Therefore,  EDAs
cannot be treated as 'promoted' as Postmen. They  can  be  treated  as  only
appointed as Postmen. It is  further  seen  from  instructions  of  Director
General Posts under Rule 4 of Swamy's publication referred to  earlier  that
EDAs service are terminated on appointment as Postman and hence they  become
eligible for ex gratia gratuity. If the recruitment of EDAs  as  Postman  is
treated as a promotion, the question of termination  will  not  arise.  This
also leads one to conclude that the recruitment of EDAs  Postman  cannot  be
treated as one of promotion.
Further, Hon'ble Supreme Court in C.C. Padmanabhan and Ors. v.  Director  of
Public Instructions and Ors., 1980 (Suppl.) SCC 668=1981(1)  SLJ  165  (SC),
observed that 'Promotion' as understood in ordinary parlance and also  as  a
term frequently used in cases involving service laws  means  that  a  person
already holding a position would have a promotion  if  he  is  appointed  to
another post which satisfies either of the two conditions  namely  that  the
new post is in higher category of the same service or  class.  Applying  the
above  criteria  appointment  as  Postman  from  EDA  cannot  be  termed  as
promotion as the posts of Postman and EDA belong to two  different  services
viz. regular Postal Service' and 'Extra Departmental Postal Service.'”
                  (emphasis laid by this Court)


The Tribunal in the instant case sought to  distinguish  the  aforementioned
case with the case in hand, by placing reliance on another decision  of  the
Tribunal and holding that the Full Bench was concerned  with  the  cases  of
those candidates covered under Column 11(2)(i),  whereas  the  case  of  the
candidates in the instant case  was  covered  under  Column  11(2)(ii),  and
thus, the decision of the Full Bench has no bearing  on  the  facts  of  the
case on hand. This reasoning of the Tribunal cannot  be  sustained,  as  the
Full Bench of the Tribunal was clearly adjudicating the broader question  of
whether the appointment of Extra Departmental Agents to the post of  Postman
is by way of direct recruitment or by  way  of  promotion.  The  attempt  to
distinguish the  ratio  of  the  Full  Bench  of  the  Tribunal  on  such  a
superficial ground is akin to reading the decision of the Full Bench like  a
Statute, which cannot be sustained.

The Division Bench of the High Court  placed  reliance  on  the  wording  of
Column 11(1) to conclude that since  the  Extra  Departmental  Agents  being
appointed as provided under Column 11(1) can be called  as  promotees,  then
the Extra Departmental Agents under Column 11(2)(i) and (ii)  also  must  be
treated at par. The  said  reasoning  of  the  High  Court  also  cannot  be
sustained. It is nobody’s case that  the  Extra  Departmental  Agents  being
appointed under Column 11(1) be called promotees.  The  language  of  Column
11(1) itself makes this crystal clear. The use of the words ‘failing  which’
makes it obvious that there is a distinction between  those  candidates  who
are being selected by way of promotion, and the  candidates  who  are  Extra
Departmental Agents and have cleared the departmental examination, and  that
the latter will be considered for appointment only if there are no  eligible
candidates under the former category. Thus, the appointment of  GDS  to  the
post of Postman can only be said to be by way of direct recruitment and  not
promotion.

Further regard may be had to the Notification  dated  11.08.2009  issued  by
the Office of the Postmaster General, Department  of  Posts,  notifying  the
examination for recruitment to the cadre of Postman/ Mail Guard.  Under  the
Head of ‘Eligibility’, it states as under:
            “
Group D-………
GDS- For GDS, the upper age limit shall be 50 years with 5 years  relaxation
for SC/ST candidates and 3 years relaxation for OBC  candidates  as  on  1st
July, 2008 and he/ she should have completed a minimum of  5  years  regular
satisfactory services as on 1st January 2008. There  is  no  restriction  on
number of GDS to be permitted to take the examination under  the  25%  merit
quota. All eligible GDS will be allowed to appear in the examination.

Note (i): Reservation will be provided for OBCs in  Recruitment  of  GDS  as
Postman as is being done in the case of SC/STs.”

The  said  notification  also  makes  it  evident  that   reservations   for
candidates belonging to the OBC category were very much in contemplation  at
the time the departmental examination was conducted. Even if a mere  reading
of Columns 11(1) and 11(2)(i) and (ii)  of the Recruitment Rules as well  as
the Notification issued while notifying the departmental examination is  not
enough, the subsequent legislative developments leave no scope for doubt  as
to the legislative intent. The relevant Column of the  Department  of  Posts
(Postman and Mail Guard) Recruitment Rules, 2010, reads as under:
“Column 11
(a)…
(c) 25% by recruitment on the basis of Competitive  examination  limited  to
Gramin Dak Sevaks* of the recruiting Division who have worked for  at  least
five years in that capacity as on the 1st day of  January  of  the  year  to
which the vacancy(ies) belong failing which by direct recruitment;
*Gramin Dak Sevaks are holders of Civil  posts  but  they  are  outside  the
regular Civil Service due to which  their  appointment  will  be  by  direct
recruitment.”

Even though the said Rules are  not  meant  to  apply  retrospectively,  and
neither are we suggesting that they do,  this  makes  the  position  of  the
Gramin Dak Sevaks crystal clear. Their appointment as  Postman  is  only  by
way of direct recruitment and not by way of promotion.

Having concluded that the selection of Extra Departmental Agents  or  Gramin
Dak Sevaks to the post of Postman under Column 11(2)(ii) of the  Recruitment
Rules is only by way of direct recruitment and not by way of promotion,  the
question of whether reservation for candidates  belonging  to  OBC  category
is allowed becomes easier to answer. It has now been well settled by a  nine
judge Bench of this Court in the case of Indra Sawhney v. Union of  India[5]
that reservation for candidates belonging to OBC category is permissible  in
cases of direct recruitment.


In view of the reasoning and conclusions recorded by us as above, the  order
of the Tribunal as well as the impugned  judgment  and  order  of  the  High
Court are set aside. There  is  no  infirmity  in  the  appointment  of  the
appellants to the post of Postman. The Appeals are accordingly  allowed.  No
costs.



                                       …………………………………………………………J.
                              [V.GOPALA GOWDA]



                          …………………………………………………………J.
                              [R. BANUMATHI]
New Delhi,
August 12, 2016
-----------------------
[1]
      [2] 1980 (Supp) SCC 668
[3]
      [4] (1997) 11 SCC 650
[5]
      [6] (1977) 3 SCC 94
[7]
      [8] O.A. No. 807 of 1999, decided on  03.11.1999
[9]
      [10] 1992 Supp (3) SCC 217

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.