Disposed

K Sathyan v. Inspector of Posts

Kerala HC30 Jun 2016OP (CAT)/135/2016

Case brief

AI extract

What is this about?

This court quashed the appointment of the sixth respondent because the petitioner's pending application for transfer was not forwarded to the competent authority. The court directed the lower authority to consider both rival claims based on departmental instructions and established facts. The case is remanded for fresh consideration.

What did the court decide?

The respondent superintendent is directed to forward the petitioner's transfer application to the competent authority for consideration of both rival claims within three months.

K Sathyan Vs Inspector of Posts — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON &

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THURSDAY, THE 30TH DAY OF JUNE 2016/9TH ASHADHA, 1938

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OP (CAT).No. 135 of 2016 (Z)

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O.A.NO.180/00411/2015 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH

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PETITIONER(S)/APPLICANT:

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K.SATHYAN, SON OF KESAVAN, EMPLOYED AS GRAMIN DAKH SEVAK MAIL DELIVERER IN OZHUKUPARAKKAL BRANCH POST OFFICE, OZHUKUPARAKKAL, AYUR, PIN 691533, RESIDING AT ANANDABHAVAN (DHANYALAYAM), EDAYAM P.O., PIN 691533

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BY ADVS.SRI.ASOK M.CHERIAN

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SRI.R.ROHITH SRI.K.JANARDHANA SHENOY SRI.V.N.RAJAPPAN SRI.V.K.PRASAD

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RESPONDENT(S)/RESPONDENTS:

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1. INSPECTOR OF POSTS PUNLAUR SUB DIVISION, PUNALUR, PIN 691305

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2. POST MASTER, PUNALUR HEAD POST OFFICE, PIN 691305

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3. SUPERINTENDENT OF POST OFFICE, PATHANAMTHITTA POSTAL DIVISION, PATHANAMTHITTA, PIN 689645

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4. THE CHIEF POST MASTER GENERAL, KERALA CIRCLE, THIRUVANANTHAPURAM 695001

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5. UNION OF INDIA REPRESENTED BY THE SECRETARY TO ITS GOVERNMENT, DEPARTMENT OF POSTS, NEW DELHI 110001

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6. B.S. SREEKUMAR,

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GRAMIN DAKH SEVAK MAIL CARRIER, OZHUKUPARAKKAL BRANCH POST OFFICE, OZHUKUPARAKKAL, AYUR, PIN 691533

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R1-R5 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERALOF INDIA BY ADV.SMT.S.KRISHNA

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R6 BY ADV. SRI.SAJITH KUMAR V.

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THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 30-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP (CAT).No. 135 of 2016 (Z)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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--------------- EXT.P1	---------------------- A TRUE COPY OF THE ORIGINAL APPLICATION NO. 180/00411/2015 FILED BY THE PETITIONER HEREIN BEFORE THE ERNAKULAM BENCH OF HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL
EXT.P2	A TRUE COPY OF THE REPLY STATEMENT FILED BY RESPONDENTS 1 TO 5 IN ORIGINAL APPLICATION NO. 180/00411/2015
EXT.P3	A TRUE COPY OF THE REPLY STATEMENTS FILED BY THE 6TH RESPONDENT IN ORIGINAL APPLICATION NO. 180/00411/2015
EXT.P4	A TRUE COPY OF THE ORDER OF THE ERNAKULAM BENCH OF HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL

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RESPONDENT(S)' E ----------------------------	XHIBITS ------------
ANNEXURE R1(a)	TRUE COPY OF THE LETTER NO.17-11/2014-GDS DATED 06.02.2014 ISSUED BY THE ASSISTANT DIRECTOR GENERAL, GDS/PCC, MINISTRY OF COMMUNICATIONS AND IT, DEPARTMENT OF POSTS
EXT.R6(a)	A TRUE COPY OF THE TABLE SHOWING TRCA ISSUED AS D.G.POSTS, LETTER NO.6-1/2009-PE. II DATED 09/10/2009
EXT.R6(b)	A TRUE COPY OF THE RELEVANT PAGES OF SENIORITY LIST OF GDS
EXT.R6(c)	A TRUE COPY OF THE RELEVANT PAGES OF G.I.DEPT.OF POSTS, LR.NO.19- 10/2004-GDS DATED 17TH JULY, 2006 AND G.I.DEPT.OF POSTS, LR.NO.17- 14/2008-GDS DATED 26TH FEBRUARY, 2009 EXTRACTED FROM SWAMY'S COMPILATION
EXT.R6(d)	A TRUE COPY OF D.G.POSTS, LETTER NO.41-437/87-PE.11 DATED 16/12/1987 FROM SWAMY'S COMPILATION OF GDS
EXT.R6(e)	A TRUE COPY OF THE RELEVANT INSTRUCTIONS FROM SWAMY'S COMPILATION REGARDING FILLING UP OF GDS VACANCIES

//True Copy//

P.A. To Judge

P.R. RAMACHANDRA MENON &

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ANIL K. NARENDRAN, JJ.

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O.P.(CAT)No.135 of 2016

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Dated this the 30^th June, 2016

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J U D G M E N T

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P.R. Ramachandra Menon, J.

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Challenge is against the order dated 11.03.2016 of the Central Administrative Tribunal, Ernakulam Bench in O.A.No.180/00411/2016 to the extent that the petitioner's claim for appointment as GDS BPM (Gramin Dakh Sevak Branch - Post Master), in preference to the

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6^th respondent, has not been acceded to.

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2.The sequence of events is as follows:

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The petitioner started career as a GDS MD (Gramin Dakh Sevak Mail Deliverer) way back in 2007 in the Ozhukuparakkal Branch Post Office on a provisional basis as per Annexure A1. The vacancy was resulted w.e.f.30.12.2006 because of the disciplinary action taken against one Mr.M.J.Joy, a regular incumbent to the post in respect of unauthorised absence. In the case of the 6^th respondent herein, he joined the service

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on a provisional basis as GDS MC (Gramin Dakh Sevak Mail Carrier) in the very same branch Post Office from 07.10.2009. This too was against a vacancy resulted because of unauthorised absence of a regular incumbent by name Dipu, against whom the Department had taken disciplinary action. Both the persons were working in the concerned posts as above. While so, the 4^th respondent herein (CPMG, Trivandrum), vide Memo No.EST/13/4057/02 dated 05.08.2013, passed orders to retrench the 6^th respondent who was serving as GDS MC in the Ozhukuparakkal Branch Post Office and he ordered to be redeployed as GDS BPM in the very same post office, against the vacancy occurred on 31.03.2010. It was also simultaneously ordered that the slot of GDS MC would be treated as a skeleton post. Pursuant to the said order, Annexure A7 consequential order was issued by the 3^rd respondent/Superintendent of Post Office on 25.05.2015 and the 6^th respondent came to be appointed as GDS BPM, also assigning some other duty

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to the extent as specified therein.

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3.The petitioner herein, had submitted Annexure A6 representation before the 3^rd respondent even much prior to Annexure A7, seeking for a transfer to the post of GDS BPM in the Ozhukuparakkal Branch Post Office, for medical reasons. The hardships being felt by him were highlighted; which was supported by medical certificate. It was also stated that he was a 'sexagenarian' and that he was finding it extremely difficult to effect the mail delivery at distant places, that too, by virtue of the topographical constraints in the area. This however was not considered and the grievance started therefrom. In the meanwhile, the service of the 6^th respondent came to be regularised on 09.02.2015, pursuant to conclusion of the disciplinary proceedings against the regular incumbent (on acceptance of the resignation submitted in this regard). But, the disciplinary proceedings in respect of the person whose slot was being occupied by the petitioner, was continuing and the said regular incumbent

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submitted his resignation only much later on 10.07.2015, pursuant to which, the petitioner's service was also regularised on 17.07.2015.

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4.The petitioner had submitted Annexure-A8

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representation dated 28.05.2015 seeking to have his service regularised and to be engaged as GDS BPM and also to assign seniority over and above the 6^th respondent. Projecting the grievance of the petitioner, he approached the Tribunal, seeking for the following reliefs:

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(i) Declare that the applicant is entitled for regularisation of his services with effect from the date of his initial appointment by Annexure A1 order with consequential service benefits including the right of appointment as Gramin Dakh Sevak Branch Post Master in preference to the 6^th respondent.

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(ii) Call for the records leading to Annexure A7 and set aside the same to the extent it appoints the 6^th respondent as GDS BPM of Ozhukuparakkal Branch Post Office.

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(iii) Direct respondents 1 to 4 to appoint applicant as GDS BPM of Ozhukuparakkal Branch Post Office in preference to the 6^th respondent.

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O.P.(CAT)No.135 of 2016 : 5 :

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(iv) Issue any other order, or direction appropriate in the circumstances of the case.

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5.The claim was sought to be resisted on the part of the department on various grounds. It was contended in Paragraph 10 of the reply statement that seniority in the provisional engagement had nothing to do with the accommodation of 6^th respondent in the vacant post of GDS BPM and that the only consideration was whether he had satisfied the minimum extent of 3 years service, to be redeployed in an alternative post, which in fact was seen satisfied by the 6^th respondent. After hearing both the sides, the Tribunal observed that, regularisation in the case of 6^th respondent had been ordered by the department right from the date of initial engagement; whereas, a differential treatment was taken in respect of the petitioner/applicant, when his regularisation was ordered; which was only from the date of order. This, accordingly was rightly intercepted and the Tribunal ordered that regularisation shall be given to the applicant with effect from the initial

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O.P.(CAT)No.135 of 2016 : 6 :

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engagement in 2007 itself. However, no benefit was

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given with regard to the claim for appointment as GDS BPM in the Ozhukuparakkal Branch Post Office, in preference to 6^th respondent and this made the petitioner feel aggrieved and hence before this Court by filing Original Petition seeking to displace the 6^th respondent from the post of GDS BPM and to accommodate the petitioner in the said slot.

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6.A detailed counter affidavit has been filed from the part of the 6^th respondent; also producing copies of relevant documents, particularly departmental instructions as to the norms governing the issue. A statement has been filed by the departmental authorities as well.

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7.Heard Shri.Asok.M.Cherian, the learned counsel for the petitioner, Smt.S.Krishna, the learned counsel appearing on behalf of the Department and Shri.Sajith Kumar. V., the learned counsel appearing on behalf of the 6^th respondent, at length.

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8.The learned counsel appearing for the 6^th respondent submits that, absolutely no legal ground was pointed

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O.P.(CAT)No.135 of 2016 : 7 :

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out either in the Original Application or during the course of hearing before the Tribunal, as to the eligibility of the applicant to have sustained the relief, particularly to have the 6^th respondent displaced from the post of GDS BPM and to have appointed the applicant in his place based on seniority. The learned counsel submits that the norms/rules regarding the recruitment to the post of GDS category stand on a different footing and that there is no vested right for any GDS staff to get a shift/transfer from one post to another, which by itself is treated as an instance of transfer and that the same will stand governed by the relevant departmental instructions issued from time to time. Only in the limited circumstances, shall such transfer be made possible, which of course includes 'medical reasons' as well. A copy of the relevant instructions in this regard has been produced along with the counter affidavit of the 6^th respondent as Ext.R6(c).

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With reference to instruction No.24 dealing with absorption of surplus Gramin Dak Sevaks on abolition of

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posts and maintenance of waiting list, the learned counsel points out that, as per the instructions issued in this regard, the surplus Gramin Dak Sevaks should be accommodated in the alternative posts in the manner as specified therein and that the question whether the person concerned is a senior or junior is not at all relevant as submitted by the learned counsel. It is also asserted by the learned counsel for the 6^th respondent that the ED Agents are not liable or are entitled for transfer from one post to another as a matter of right. Reference is made to the departmental instruction bearing No.27, copy of which is produced as Ext.R6(e) along with the counter affidavit. A further reference is made to the instruction 'No.35' as to clarification on filling of the GDS post and adds that, it is in conformity with the departmental instructions as above and hence perfectly within the four walls of law and is not assailable under any circumstances.

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10.The learned counsel for the petitioner points out that Clause IV of departmental instructions bearing No.23

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stipulates 'medical reason' as an instance for seeking transfer. The said clause reads as follows:

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“IV. Where the GDS himself/herself suffers from extreme hardship due to a disease and for medical attention/treatment, such transfer may be allowed on production of a valid medical certificate from the medical officer of a Government hospital.”

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It is stated by the learned counsel that it was in view of the said enabling provision, that the petitioner who had crossed the age of 63 years and was suffering much because of medical reasons, had submitted Annexure A6 application for transfer by producing the medical certificate. This was submitted before the 3^rd respondent/Superintendent of Post Office, but, it was never considered. It was without any regard to the same, that the 6^th respondent came to be accommodated against the slot/vacancy of GDS BPM as per Annexure A7 order dated 25.05.2015.

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11.The learned counsel for the 6^th respondent points out that Annexure A7 was issued only on 25.05.2015 ie., after submitting Annexure A6 application for transfer by the petitioner. Abolishing the post held by the 6^th

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respondent ie., GDS MC was ordered by the CPMG - the competent authority on 05.08.2013, as discernible from Annexure A7 itself. But, the order to have the post abolished redeploying the 6^th respondent could not be effected because of some ongoing litigations in relation with the claim preferred by somebody to get appointed against the slot of GDS in the Ozhukuparakkal Branch Post Office. The hurdles were removed and the order passed by CPMG could be given effect to only subsequently, on 25.05.2015, which is only a consequential order in terms of the order passed by the CPMG on 05.08.2013 and as such, there is absolutely no mala fide exercise of power or authority by the departmental authorities, submits the learned counsel.

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12.After hearing both the sides, this Court finds that the abolition of the post would result in redeployment of the person; who was occupying the post, against some other similar/available vacancy; subject to the condition that the person who was holding the post abolished was having the requisite extent of 3 years of service. Which

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post is to be abolished, whether the post of GDS Male Deliverer (held by the petitioner) or whether the GDS MC held by the 6^th respondent, was to be decided by the competent authority, based on relevant facts and figures. It is also a factor to be noted that, even though the CPMG had taken a decision on 05.08.2013 to have the post on GDS MC abolished, ordering redeployment of the 6^th respondent, and also ordering the post of GDS MC to be treated as a skeleton post, the same came to be given effect to much later, by passing Annexure A7 order dated 25.05.2015. But by that time, pointing out the adverse circumstances, the petitioner had sought for a transfer as per Annexure A6, which was not dealt with by the 3^rd respondent/the Superintendent of Post Office; nor had been forwarded the same to the competent authority CPMG, if it had to be considered only by the CPMG.

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13.There is no case for the department that the petitioner had not submitted Annexure A6 application for transfer. It is also brought to the notice of this Court by the

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learned counsel appearing for the 6^th respondent that there is not much difference with regard to the duties to be performed, whether it be the post of GDS MC or GDS MD or GDS BPM. As such, the non-consideration of the application for transfer submitted by the petitioner by way of Annexure A6 is held as not proper. This Court finds it fit and proper to direct the 3^rd respondent to have the same forwarded to the 6^th respondent/CPMG immediately and to have the rival claims considered by the letter in accordance with law.

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14.Accordingly, there will be a direction to the 3^rd respondent to forward Annexure A6 along with all the relevant records to the 6^th respondent at the earliest, at any rate, within two weeks, from the date of receipt of a copy of this judgment, upon which, the same shall be considered and appropriate orders shall be passed in relation to the claims put forth by the rival contestants, the petitioner and the 6^th respondent, of course after affording an opportunity of hearing to both the sides and based on the relevant provisions of law. This

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exercise shall be completed at the earliest at any rate within 3 months from the date of receipt of the proceedings from the 3^rd respondent as above.

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This petition is disposed of accordingly.

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Sd/- P.R. RAMACHANDRA MENON, JUDGE

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Sd/- ANIL K. NARENDRAN, JUDGE

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[True copy]

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P.A to Judge

K Sathyan v. Inspector of Posts

Case brief

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K Sathyan v. Inspector of Posts

Case brief

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