Central Administrative Tribunal - Madras P. Moorthy And Ors. vs Union Of India (Uoi) And Ors. on 4 July, 2006 Equivalent citations: 2007 (2) SLJ 103 CAT Bench: P Shanmugam, G A R. ORDER P. Shanmugam, Vice-Chairman 1. The above applicants have served at different Branch Post Offices intermittently either as EDDA/EDMC or BPM. Aggrieved by the impugned orders of rejection of their services, they have approached this Tribunal with separate O.As. but with a common grievance and relief of regularization of their services. Hence we proceed to dispose of all the above O.As. by a common order. 2. The facts involved in each of the cases are set out below: O.A. 27/2005 The applicant was provisionally appointed as EDDA at Devannagoundanur B.O. from 6.10.1992 to 30.9.1993. Subsequently he was appointed as BPM in the same place from 15.6.1994 to 16.4.1996. According to the applicant, he had served the Department for more than a year and as such, he is eligible to be included in the dovetailed list for regular absorption. However, the Superintendent of Post Offices vide impugned order dated 14.12.2004 rejected the claim of the applicant on the ground that he was engaged as DTS only on stop gap arrangement and not appointed provisionally as GDS after observing usual recruitment formalities. O.A. 528/2005 The applicant was appointed at BPM Nemanoor on 23.7.1996 in the vacancy of one Shri G. Tamaraiselvam, who had been suspended pending disciplinary proceedings. After reinstatement of the regular incumbent Shri G. Tamarai Selvam on 26.6.1999, the services of the applicant was terminated from 26.6.1999 as per the terms of the appointment order. Thereafter the applicant was appointed on provisional basis as BPM Alavakottai for a period from 24.10.2000 to 4.12.2000 and 14.2.2001 to 3.7.2001 on stop gap arrangement. The applicant worked as GDS BPM Arumuganagar from 30.12.2002 to 2.7.2003 and as GDS BPM Athapadakki B.O. from 1.1.2004 to 13.5.2004 and at Veppankulam B.O. from 15.5.2004 to 14.6.2004 on stop gap arrangement. According to the applicant, she has rendered more than 240 days of service and hence she is entitled to be included in the dovetailed list for regular absorption. However, the respondents have rejected the claim of the applicant for regularization of her services on the ground that the applicant started to work only on provisional basis from 11.7.1997 and she has not been given regular appointment and therefore she is not entitled to be included in the dovetailed list for regular absorption. O.A. 948/2005 The applicant had been working as EDDA at Kandamanalam BPO from 1987 to 2005 as substitute in the leave vacancy. According to him, he had put in 981 days of service and is entitled to be included in the dovetailed list for regular absorption. According to the respondent, the applicant has been working occasionally on different dates as GDS(Outsider) substitute on leave vacancy. The applicant was directed to attend the interview on various occasions namely on 13.1.1999, 28.6.2000, 29.6.2000, 30.5.2003 but he could be not selected because he was comparatively less meritorious. He is not eligible for inclusion in the dovetailed list since he had been engaged to work only as substitute on leave vacancies. Hence his claim for inclusion of his name in the dovetailed list and consequent regularization was rejected vide impugned order dated 26.10.2005. O.A. 55/2006 The applicant has prayed for a direction not to discontinue his services until his regular absorption as GDS. The applicant has been working as EDDA/MC Melacherry B.O. A/w Mazhaipur S.O. since 5.6.2002 and no appointment order has been issued to him at the time of engagement by respondent No. 3 as stop gap appointee. According to the applicant, he is entitled to be absorbed on regular basis as per the Scheme of the DG(Posts), New Delhi dated 23.12.1993. According to the respondents, the applicant was engaged only on stop gap basis without following the recruitment process in the place of his father who was discharged on invalidation. According to them, there was a ban for filling up the post and permission was obtained to fill up the post only on 13.10.2005 and accordingly notification was issued to fill up the post on 9.1.2006. The respondents have referred to the Constitution Bench judgment in Secretary, State of Karnataka v. Uma Devi in support of their case and submitted that the stop gap arrangement/adhoc/temporary/ casual engagement appointees have no right for regular absorption unless they undergo due process of recruitment rules and therefore, the applicant is not entitled for any order for inclusion of his name in the dovetailed list and consequent regularisation. O.A. 56/2006 The applicant was working as EDBPM/GDSBPM at Thozhuppedu BPO as a stop gap arrangement since 17.7.2003 and that no appointment order was issued at the time of his engagement. However, the inspection report shows that the applicant has been working as EDBPM since 17.7.2003. According to the applicant, he is eligible to be appointed as GDS BPM on regular basis as per the Scheme of DG (Posts), New Delhi dated 23.12.1993. According to the respondents, the regular vacancy arose in the post of BPM Thozhapedu from 17.7.2003 due to retirement of the incumbent. When the vacancy was notified, action was taken to fill up the post. Since orders were received from the Regional Office not to fill up the post where more than one GDS is working, regular selection was kept pending and stop gap arrangement was made. Accordingly the applicant was appointed on stop gap arrangement basis w.e.f. 17.7.2003. In the meantime, proposal for filling up the post on regular basis was notified on 29.12.2005. The applicant himself had admitted that he was appointed on stop gap basis without following any recruitment rules. Hence the applicant is not entitled for absorption and consequent regularization. OA. 157/2006 The applicant was appointed as EDDA at Muthayanur from 9.11.1993 to 4.4.1994 on provisional basis and subsequently from 5.4.1994 to 23.5.1995. He was terminated from service on 23.5.1995. He was again provisionally appointed as EDDA on 21.5.1998 and was terminated from service on 1.4.1999. The applicant has rendered 2 years, 6 months and 27 days of service. If the total services are counted, he will be eligible for inclusion of his name in the dovetailed list. Mr. G. Nanmaran, learned Counsel appearing on behalf of the respondents submits that the post of BPM at Muthayanur was abolished and therefore the provisional appointment for a period of one month was terminated. The learned Counsel submits that the applicant has not rendered continuous service of 240 days within the period of three years and therefore he is not entitled for inclusion of his name in the dovetailed list and consequent regularization. OA. 293/2006 The applicant was appointed as GDS (BPM) Erumaivetti B.O. w.e.f. 20.10.1994 as a stop gap arrangement without any appointment order. However, the Inspection Report shows that the applicant had been working as GDSBPM since 20.10.2004. She is a Graduate in Commerce and is eligible to hold the post and is entitled to be considered for absorption against the existing vacancy. According to the respondents, the applicant was engaged on a stop gap arrangement basis on 25.2.2004 by the Inspector, Posts Vandavasi Sub Division who is not the Appointing Authority for BPM. It is clearly stated in the order that the stop gap arrangement is purely temporary for a period not exceeding 90 days. A notification was issued on 15.3.2006 calling for applications to fill up the post of BPM Erumaivetti on regular basis on put off duty by giving opportunity to all meritorious candidates. The applicant was not selected through due process of law and hence the contention is against the recruitment rules and judgment of the Hon'ble Supreme Court in State of Karnataka v. Uma Devi. It is seen that the applicant did not make any application pursuant to the notification dated 15.3.2006 but however, he seeks to continue as stop gap arrangement and by regular absorption. Hence the applicant claims for quashing of the notification dated 15.3.2006. OA. 352/2006 The applicant was appointed on temporary basis to work as GDS (BPM) at Chellankuppam B .O. w.e.f. 1.7.1992 against aclear vacancy upto 5.4.1994. His representation for inclusion of his name in the dovetailed list was rejected by the respondents vide impugned order dated 17.7.2003 stating that the applicant was appointed only on stop gap arrangement and hence has filed this O.A. seeking to quash the order of rejection of his services and consequently direct the respondent to include his name in the dovetailed list. However, the respondents have stated that the applicant was engaged only on stop gap/leave arrangement basis without following the regular recruitment process and hence the applicant was not a provisional appointee and no absorption can be made for such person. Hence the respondents have rejected the claim of the applicant vide impugned order dated 17.3.2003. O.A. 403/2006 The applicant was appointed as GDS MD/MC at Saraswathy Narayana College B.O. vide order dated 10.4.2006 in the existing vacancy and she worked till 31.1.2004. He was again appointed as GDS MD/MC at Kanpur Vayal BO, Shenbaganur SO, Kodaikanal Sub Division at Battakundu w.e.f. 3.3.2004 to 28.2.2005 and from 1.5.2005 to 30.6.2005. Since he has rendered more than 240 days of service, he has represented for inclusion of his name in the dovetailed list. The order dated 6.10.2003 states that the applicant was directed to work as GDS MD in the existing vacancy by terminating the present arrangement and he has worked totally for 344 days. The question will be whether he is eligible to be included in the dovetailed list and consequent regularisation. We have heard the learned Counsel for the parties in the above cases and considered the matter carefully. 3. We are concerned with the recruitment of Extra Departmental Agents (EDA) called as Gramin Dak Sevaks(GDS) in the Department of Posts. The Department of Posts is having a system of engaging GDS for providing postal service in rural areas. It is stated that more than 50% of the employees working in the postal department are GDS. Though initially the terms and conditions of their employment were made under provision to Article 309 of the Constitution in the year 1959, those Rules were repealed in the year 1964 in purported exercise of powers provided under Article 73 of the Constitution of India. The post of Telegraph Extra Departmental Agents (Conduct and Service) Rules, 1964 was framed which was in force till a new Rules namely Department of Posts, Gramin Dak Sevaks (Conduct and Service) Rules, 2001 came into force w.e.f. 24.4.2001, hereinafter referred to as Rules. Rule 4 deals with the Appointing Authority in order to make regular selection. There are consolidated instructions issued by the Department which are found in Chapter 2 of Hari on Law relating to GDS 2004 Edn., page 108 under the heading 'Recruitment'. Apart from the regular recruitment, provisional appointments are made in terms of the circular dated 30.10.1999 which reads as follows: 11.15 Provisional Appointment: It has come to the notice of this office that provisional appointments made to ED Posts are being allowed to continue for indefinite periods and when regular appointment are made, the provisionally appointed persons do not readily hand over the charge. The following instructions are issued in this regard. (i) As far as possible, provisional appointments should be avoided. Provisional appointment should not be made to fill vacancies caused by retirement of ED Agents. In such cases, the Appointing Authority should take action well in time before the retirement of the incumbent ED Agent, to select a suitable successor. (ii) Wherever possible, provisional appointment should be made only for specific periods. The appointed person should be given to understand that the appointment will be terminated on expiry of the specified period and that he will have no claim for regular appointment. Where a new Post Office is opened or where a new post is created or where an EDA dies while in service or resigns from his post and it is not possible to make regular appointment immediately, a provisional appointment should be made for a specific period. The offer for appointment should be in the form annexed (Annexure-A). (iii) Where an EDA is put off duty pending disciplinary or judicial proceedings against him and it is not possible to ascertain the period by which the department/judicial proceedings are likely to be finalized, a provisional appointment may be made, in the form annexued (Annexure-B). It should be made clear to the provisionally appointed person that if ever it is decided to reinstate the previous incumbent, the provisional appointment will be terminated and that he shall have no claim to any appointment. Even in cases where the appointment is made to fill vacancy caused by the dismissal/removal of an EDA and the dismissed/removed employee has not exhausted all channels of appeal, appointment should only be provisional. The offer for appointment should be in the form annexed (Annexure-B). 2. Efforts should be made to give alternative employment to the ED As who are appointed provisionally and subsequently discharged from service due to administrative reasons, if at the time of discharge they have put in not less than three years continuous approved service. In such cases their names should be included in the waiting list of EDAs discharged from service, prescribed in D.G. P&T Letter No. 43/4/77-Pen., dated the 23.2.1979. 4. The method of making provisional appointment is set out in the guidelines on provisional appointment vide circular dated 21.10.2002 (refer page 125 of Hari on Law Relating to GDS). Para 10 of the said guidelines states that where provisional appointment becomes unavoidable, action may be taken to fill up the post following all formalities prescribed for regular appointment. It is clearly stipulated that the appointment is on provisional basis. In no account, the provisional appointment will be made without following the formalities prescribed for regular appointment. In all the above O.As., we find that the applicants were not appointed by following the formalities prescribed for regular appointment. In almost all the cases, we find that the consolidated instructions set out for recruitment regarding educational qualification, income and ownership of property residence, preferential categories, medical certificate of fitness, preference to disable, notice to ex-servicemen Board, preference to SC/ST, percentage of representation to SC/ST, representation to OBC candidates and so on have not been followed. Neither public notice inviting applications to fill up the vacancies nor notification in the Employment Exchange was made. Appointments made on stop gap arrangement were continued without reference to these pre-conditions for recruitment. 5. Similar questions were raised before this Tribunal in O.A. 1203 etc., of 2004 and O.As. 25, 26 and 351 of 2005. The Tribunal in their order dated 2.6.2006 considered the matter as follows: "14. All the applicants seek for a direction for inclusion of their name in a list called dovetailed list. According to them, their inclusion in the list is to enable them to be regularly absorbed/appointed in the Postal Department..." "15. The CAT, Madras Bench in O.A. 811 of 1988 dated 20.4.1990 directed the Department of Posts to frame a scheme for regular absorption of all categories of Casual Labourers who had completed 240 days of service in any two years and who were otherwise eligible for absorption against Group 'D' posts and appointment against vacancies in the post of EDAs in so far as the Madras Circle is concerned. The Tribunal as per the order dated 20.4.1990 directed that there should be two seniority lists namely, one for Casual Labourers (full time and part time) and the other for ED provisional appointees/ED substitutes and that both the lists should be dovetailed on the basis of the date of their initial engagement and that thereafter they should be absorbed against the vacancies for the post of EDA/GDS." "17... 18. The orders passed in reference to these categories are as follows: 1. O.A. 792 of 1987 CAT, Madras Bench dated 11.2.1988 directing the Tamil Nadu Circle of Postal Department to absorb regularly Casual Labourers (full time and part time) as and when vacancies for the post of GDS/GDS arose. 2. O.A. 811/88 dated 20.4.1990 directing two Senior List--one for Casual Labours full time and part time and the other for ED provisional appointees/ED Substitutes. Both to be dovetailed on the basis of the date of their initial appointment for the absorption against the vacancies for the post of GDS/GDS. 3. Direction in V. Kumar v. Union of India (1994) 27 ATC 346 evolving another scheme of dovetailed list by Circular dated 23.12.1993 (by which cut off date was made applicable only to GDS/GDS (substitute and not others). 4. Direction of the Tribunal in O.A. 436/2003 dated 5.3.2004 holding that the scheme dated 23.12.1993 would be applicable to appointees made on stop gap arrangement also. 5. Direction in W.P. 5026 of 2003 etc., and batch dated 24.11.2005 by the Division Bench of the High Court of Madras to extend the benefit of the scheme until the last eligible casual labourer full time and part time EDA/GDS (provisional appointee or substitute or outsiders) is absorbed against the existing and future vacancies of GDS/GDS. 6. The Tribunal framed the following question for consideration: 19.... Whether the applicants who are following or worked as GDS either provisionally or on casual basis or substitute (full time or part time) are entitled to be included in the dovetailed list and are to be regularised in service? 7. The Tribunal held as follows: 21. Excepting those whose services had already been regularised, there is no scope for directing the respondents/department to regularise the services or include the applicants in the dovetailed list for the purpose of regularisation of their temporary/provisional/substitute casual employment. All the posts are to be filled only by following 'statutory' rules. As held by their Lordships of the Supreme Court that there cannot be any further order to bypass the constitutional requirement. Therefore, the Department is bound to follow only the rules of requirement namely Department of Posts, Gramin Dak Sevaks (Conduct and Employment) Rules, 2001. 8. Mr. M. Radhakrishnan, learned Counsel, sought to distinguish the order of the Tribunal and the Constitutional Bench decision on the ground that the recruitment rules are not statutory and are not framed under Article 309 of the Constitution of India and therefore, the judgments cannot be applied. 9. The point that would arise for consideration would be whether the applicants who are provisional/stop gap appointees are entitled to be included in the dovetailed list and appointed on regular basis'? The question, in our view, is fully covered by the Constitution Bench decision of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka v. Uma Devi (supra). Their Lordships held in Para 54 that the decisions and directions which run counter to the principles settled, will stand denuded of the status as precedent. Their Lordships laid down the law that no employment can be made outside the constitutional scheme. What is 'the constitutional scheme' has also been laid down by Their Lordships. According to the Hon'ble Supreme Court, regular appointments must be the Rule. But sometimes the departments and instrumentalities have resorted to irregular appointments especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commissions or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without following regular procedure or even through the back door or on daily wages, approaching the Courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the post concerned. Their Lordships further held that it is time that the Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. Their Lordships have further observed that the States have made Acts, rules or regulations for implementing the above constitutional guarantees and any recruitment to the service in the State or in the Union is governed by such Acts, rules and regulations for implementing the above constitutional guarantees and any recruitment to the service in the State or in the Union is governed by such Acts, rules and regulations. The Constitution does not envisage any employment outside this constitutional scheme and without following the requirements set down therein. It was further held that when a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on proper selection as recognized by relevant rules or procedure, he is aware of the consequence of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection. It was held by their Lordships that the State action in not regularizing the employees will not be unfair within the framework of the rule of law. Accepting the same would amount to perpetuation of illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It was also held that "But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14,16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment". Their Lordships further clarified that regularization already make but not subjudice need not be reopened but there should be no further by passing of the constitutional requirement and regularising or making permanent those not duly appointed as per the constitutional scheme. 10. The submission that the Rules we are concerned with for recruitment are not statutory and are not framed under Article 309 of the Constitution and, therefore, the Constitution Bench judgment will not apply, cannot be sustained. It is settled that EDAs are holders of civil post as held by the Hon'ble Supreme Court in the case of Superintendent of Post Offices v. P.K. Rajamma . Their Lordships in that case held as follows: An extra department 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... What the applicants seek is a public employment. Their Lordships held that adherence to the rule of equality in public employment is a basic feature of our constitution. The executive instructions, the rules and the guidelines read with Article 14 and 16 of the Constitution of India are required to be followed in the case of employment of the GDS. There cannot be any escape from the constitutional scheme of employment which shall have to be in accordance with the procedure or rules. Therefore, we are of the view that the applicants who have entered the service and continued contrary to or not in accordance with the rules, guidelines or instructions, cannot be permitted to claim a right to be regularized. That would be petpetuating the illegality and would amount to encouraging back door entry into the service and employment. Their Lordships in Secretary, State of Karnataka v. Uma Devi approved the view that regularisation is not and cannot be a mode of recruitment by any State or authority governed by a Statutory Act or Rules. 11. For the above reasons, we hold that the applicants have not made out a case for grant of the reliefs as prayed for by them in these O.As., and consequently the same are liable to be dismissed and are accordingly dismissed with no order as to costs. |
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