Dismissed

Tomy Joseph v. the Superintendent of Post Office

Kerala HC4 Aug 2016WP(C)/25017/2009

Case brief

AI extract

What is this about?

This writ petition challenged the dismissal of a Central Administrative Tribunal order denying the petitioner, an ex-Gramin Dak Sevak, benefits under Annexure A10. The High Court upheld the Tribunal's rejection, ruling the petitioner was not a 'provisional hand' as he lacked a formal appointment order or selection process.

What did the court decide?

Petition dismissed; impugned order of the Central Administrative Tribunal upheld.

Tomy Joseph Vs the Superintendent of Post… — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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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 4TH DAY OF AUGUST 2016/13TH SRAVANA, 1938

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WP(C).No. 25017 of 2009 (S)

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AGAINST THE ORDER IN OA 278/2008 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 15-12-2008

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PETITIONER(S):

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TOMY JOSEPH, EX-GDSMD, KARIKUZHY B.O.,

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VELLARADA S.O., TRIVANDRUM, RESIDING AT, PALLAKKATTHU HOUSE, KARIKUZHY P.O., VELLARADA VIA, TRIVANDRUM DISTRICT.

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BY ADVS.SRI.G.SASIDHARAN CHEMPAZHANTHIYIL

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SRI.S.VISHNU

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RESPONDENT(S):

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SUPERINTENDENT OF POST OFFICES, TRIVANDRUM SOUTH DIVISION, TRIVANDRUM-14.

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UNION OF INDIA REPRESENTED BY THE CHIEF POST MASTER GENERAL, KERALA CIRCLE,, TRIVANDRUM.

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BY ADV. SRI.N. NAGARESH,ASST.SOLICITOR GENERAL OF INDIA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 25017 of 2009 (S)

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APPENDIX

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PETITIONER	'S EXHIBITS :
EXT.	P1 : TRUE COPY OF THE O.A. NO. 278/2008 FILED BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
EXT.	P2 : TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
EXT.	P3 : TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER BEFORE the CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.
EXT.	P4 : TRUE COPY OF THE ORDER DATED 15.12.2008 IN O.A. NO. 278/2008 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.
EXT.	P5 : TRUE COPY OF THE ORDER IN O.A. NO. 764/2006 DATED 25.06.2007 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH

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/TRUE COPY/

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P.A. TO JUDGE

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P.R. RAMACHANDRA MENON

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ANIL K. NARENDRAN, JJ.

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Dated, this the 4^th day of August, 2016

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JUDGMENT

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Ramachandra Menon, J.

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Challenge is against the verdict passed by the Central Administrative Tribunal in O.A. No. 278 of 2008, whereby the claim of the petitioner to have the benefit of Annexure A10, providing re-engagement in service, treating him as a provisional employee sent out due to the administrative reason, came to be rejected as per Ext.P4 order dated 15.12.2008.

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The case of the petitioner is that he joined service of the respondents as a GDS MD (Gramin Dak Sevak – Mail Deliverer) at Karikuzhy Post Office and was working there from 25.02.2005. While so, Annexure A2 order was passed on 03.02.2005, whereby the post of GDS MC (Gramin Dak Sevak – Mail Carrier) was ordered to be abolished and the incumbent working in the said post was ordered to be redeployed against the post of GDS MD, which seat was occupied by the petitioner. Pursuant to this, the petitioner handed over the

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W.P.(C) No. 25017 of 2009

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charge on that day itself, as per Annexure A3. Subsequently, the position was restored as it existed earlier, by the competent authority, as per Annexure A4 order dated 18.02.2005, whereby the petitioner was permitted to reoccupy the chair of GDS MD and the other man was sent back. Accordingly, the petitioner was discharging the duty of GDS MD from 18.02.2005 onwards.

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While so, Annexure A5 order came to be passed on 03.05.2006, whereby the competent authority decided to dis-engage the petitioner and sought to post somebody else in his place. This was sought to be challenged by filing O.A. No. 298 of 2006, mainly contending that the petitioner was working as a provisional hand and as per the decision rendered by the Apex Court in State of Haryana and Ors. Vs. Piara Singh [AIR 1993 SC 2130], one provisional could not be replaced by another provisional hand. It was accordingly, that an interim order was passed permitting the petitioner to continue as GDS MD. During pendency of the O.A., the Department took further steps to abolish the post of GDS MC and the incumbent who was working in the said post came to be accommodated in the post of GDS MD [which was being occupied by the petitioner]. The said decision was implemented by the Department as per Annexure A7

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W.P.(C) No. 25017 of 2009

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dated 28.04.2008. Since the prayer in the O.A. was 'not to replace applicant to accommodate another provisional hand' and as the post of GDS MD was sought to be filled up from the post GDS MC [which is a regular method of filling up of posts], the O.A. was stated as 'not pressed' and it was dismissed accordingly.

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The case projected by the petitioner is that, when the petitioner was relieved, implementing the decision to abolish the post of GDS MC by passing Annexure A7 order dated 28.04.2008, the petitioner had already completed '3 years' of service. By virtue of this, he is entitled to have the benefit of Annexure A10 to be included in the list of persons eligible to be re-appointed in the said circumstances. Annexure A8 claim was preferred by the petitioner on 05.05.2008 in this regard, which was considered and rejected by the respondents, vide Annexure A9, mainly on two grounds; firstly, that the engagement of the petitioner was not a provisional arrangement but a stop-gap arrangement; and secondly that, there was an observation in Annexure A6 verdict that the petitioner was not working as a provisional hand. This made the petitioner to feel aggrieved, who sought to challenge the same by filing O.A. No. 278 of 2008. After hearing both the sides, interference was declined and the

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W.P.(C) No. 25017 of 2009

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O.A. was dismissed as per Ext. P4 order, which forms the subject matter of challenge in this writ petition.

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Heard the learned counsel for the petitioner and the learned Asst. Solicitor General appearing on behalf of the respondents.

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The learned counsel for the petitioner points out that there is absolutely no finding on merit by the Tribunal in Annexure A6, to the effect that the petitioner was not working as provisional hand. It is pointed out that the idea and understanding to the contrary, as put forward by the respondents and accepted by the Tribunal vide Ext. P4, is quite wrong and unfounded. It will be worthwhile in the said circumstances, to have the operative portion of Annexure A6 [as contained in paragraphs 2, 3 and 4] to be extracted below:

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“2. The respondents in their reply submitted that the applicant was not a provisional hand but his appointment was only on stop-gap arrangement. They have also submitted that the post held by the applicant i.e. GDSMD, Karikuzhy is being filled by a regular hand and the approval in this regard has already been obtained from the competent authority, viz. CPMG, vide Annexure R-2 letter dated 10.7.2006.

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In view of the aforesaid position as stated by the Respondents, counsel for applicant has fairly

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W.P.(C) No. 25017 of 2009

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submitted that since his prayer was only not to replace him by another provisional hand and the respondents are taking steps to fill up the posts only on regular basis, he is not pressing for the aforesaid reliefs prayed for in the O.A.

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In the above circumstances, the O.A. is disposed of as not pressed by the Applicant. There shall be no order as to costs.”

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As noted in the opening paragraph of Annexure A6, the contention of the applicant was that, he had joined duty as GDS MD, Karikuzhy B.O, Vellarada S.O., Trivandrum 'on provisional basis' w.e.f. 25.02.2005. The case of the respondents as per Annexure A5 dated 03.05.2006 mentioned therein was that, petitioner/applicant was an outsider and his engagement as GDS MD from 01.04.2006 to 29.04.2006 was irregular and hence, the Post Master, Karikuzhy B.O. was directed to disengage him from April 2006. The version of the respondents in the reply statement, was to the effect that the applicant was never engaged as a provisional hand and it was only a 'stop-gap arrangement'. When the position as above was brought to the notice of the Tribunal, especially with regard to the subsequent developments [as to the course sought to be pursued by the Department by way of abolition of the post of GDS MC and

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W.P.(C) No. 25017 of 2009

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accommodating the said incumbent against the post of GDS MD, which was one of the regular methods of filling up of post in question], the learned counsel for the applicant fairly conceded before the Tribunal that, the matter was not pressed and accordingly, the O.A. was dismissed as not pressed. In other words, the assertion made by the respondents to the effect that the applicant was not working as a provisional hand, but engaged on stop-gap arrangement was not sought to be rebutted and the claim in this regard was virtually treated as abandoned.

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There cannot be any doubt as to the Scheme of Annexure A10; that the benefit contemplated therein can be extended to provisional hands. To be treated as a provisional hand, the engagement should be in the manner as provided under the relevant provisions of law, completing the process of selection; which admittedly has not undergone by the petitioner/applicant. There is no case for the petitioner that he was ever given any appointment order; nor was it produced before the Tribunal or before this Court. How the petitioner came to be appointed occupying the chair of GDS MD; whether it was a case of any administrative exigency felt by the Department or was it a temporary arrangement to meet the situation;

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W.P.(C) No. 25017 of 2009

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was it by way of a process of selection conducted by the Post Master or Departmental authority etc. are not known. Unless and until it is established by the petitioner that he has undergone a process of selection and he was appointed on 'provisional basis' by the Department, the petitioner cannot be heard to say that he is entitled to have the benefit of Annexure A10. It was accordingly, that the matter was considered by the Tribunal and the position was answered against the petitioner/applicant as per Ext.P4. We do not find any tenable ground to call for interference. The writ petition fails and it stands dismissed.

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sd/-

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P. R. RAMACHANDRA MENON, JUDGE

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sd/-

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ANIL K. NARENDRAN, JUDGE

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kmd

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/True copy/

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P.A. to Judge

Tomy Joseph v. the Superintendent of Post Office

Case brief

What is this about?

What did the court decide?

Tomy Joseph v. the Superintendent of Post Office

Case brief

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