Remanded

Union of India v. Sini T.R.

Kerala HC9 Aug 2017OP (CAT)/3488/2011

Case brief

AI extract

What is this about?

The Court set aside an order where the Tribunal granted regularization of service to Gramin Dak Sevak applicants. The Court held that the precedent (Ext.P4 verdict in W.P.(C) No.17727/2004) was not applicable as the reliefs sought were different, the nature of engagement differed, and the specific plea regarding the validity of the mandatory three-year continuous service rule was not addressed by

What did the court decide?

The Tribunal's order (Ext.P3) was set aside, and the matter was remanded to be considered afresh by the Tribunal regarding the specific prayers and pleas raised by both sides.

Union of India Vs Sini T.R. — Pension and Retirement Benefits | Kerala HC (2017)

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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 MRS. JUSTICE SHIRCY V.

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WEDNESDAY, THE 9TH DAY OF AUGUST 2017/18TH SRAVANA, 1939

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OP (CAT).No. 3488 of 2011 (Z)

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AGAINST THE ORDER IN OA 941/2010 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 05-08-2011

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PETITIONERS/RESPONDENTS:

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1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF, COMMUNICATIONS, DEPARTMENT OF POSTS, NEW DELHI.

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2. CHIEF POSTMASTER GENERAL,

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KERALA CIRCLE, THIRUVANANTHAPURAM.

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3. SUPERINTENDENT OF POSTS, ALAPPUZHA DIVISION, ALAPPUZHA.

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BY ADVS.SRI.P.PARAMESWARAN NAIR,ASG OF INDIA SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL

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RESPONDENT/PETITIONER:

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SINI T.R., W/O. SAJEEV C.V.,

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AGED 37 YEARS, GDSBPM, PALLITHODU, THURAVOOR,, CHERTHALAI, ALAPPUZHA, RESIDING AT MUNDAKAL CHIRA,, THALAYAZHAM P.O., VAIKOM, PIN-686 607.

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R, BY ADV. SRI.M.R.HARIRAJ

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THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 09-08-2017, ALONG WITH OPCAT. 3521/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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APPENDIX

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PETITIONER(S) EXHIBITS

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EXT.P1 : TRUE COPY OF OA NO.941/2010 ALONG WITH ANNEXURES BEFORE THE

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CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.

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EXT.P2 : TRUE COPY OF REPLY STATEMENT IN OA NO.941/2010 BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, DTD.22.3.2011.

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EXT.P3 : TRUE COPY OF THE ORDER PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN OA NO.941/2010 DTD.5.8.2011.

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EXT.P4 : TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN WPC NO.17727/2004(S) DTD.1.3.2005.

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RESPONDENTS' EXHIBITS

NIL

ks.

True copy

P.S. To Judge

P. R. RAMACHANDRA MENON

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SHIRCY V.,JJ.

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==============================

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OP(CAT) Nos. 3488 & 3521 of 2011

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==============================

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Dated this the 9^th day of August, 2017

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JUDGMENT

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P.R. Ramachandra Menon, J.

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The Respondents in the O.A. Nos. 847/2010 & 941/2010 are before this Court challenging Ext.P3 verdict passed by the Tribunal virtually ordering regularization of service of the respondents herein/applicants placing reliance on Ext.P4 verdict passed by this Court without properly considering the specific relief sought for in the O.As. and the merit attached thereto. The main contention is that Ext.P4 verdict stands on a different footing and is not attracted to the case in hand.

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OPCAT 3488& 3521/2011

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The Respondents herein were stated as engaged on stop gap arrangement in the post of Gramin Dak Sevaks for different spells. In the case of the respondent in O.P.(CAT) No.3488/11(arising from O.A.No.941/2010) the engagement as GDSSPM was for different periods from 29.8.2005 to 15.3.2006, 1.2.2008 to 1.5.2008, 28.7.2008 to 5.2.2009 and from 17.3.2009 to 31.1.2010, followed by subsequent engagement as GDSBPM at Pallithodu from 8.2.2010 onwards. It is the case of the said respondent that she was having more than three years of service as above. In the case of the respondent in O.P.(CAT 3521/20011 (arising from O.A.847/2010) it was stated that she was engaged as a substitute GDS in various post offices from 1.9.1993 onwards.

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As per the details given in the O.As., such engagement during various spells spread over during the period from 2.9.1993 to 24.9.2007, the respondents

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OPCAT 3488& 3521/2011

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apprehended termination of their service for accommodating regular incumbents, who have approached the Tribunal to direct the respondents in the O.A. to continue to engage the applicants, also seeking for a declaration that the stipulation contained in the D.G.P&T Letter No.43-4/77-Pen. dated 18.5.1979 and Circular No. 190-34/99-ED&Trg.dated 30.12.1999, to the extent it prescribes a minimum of three years of continuous service for granting preference in reemployment for GDS employees as ultra vires. The main prayers are almost common in both the cases and hence the prayers in O.A. No. 941/2010 are extracted as given below:

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“i) To call for the records leading to D.G.P&T letter No. 43-4/77-Pen., dated 18.5.1979 and Circular No. 19-34/99-ED&Trg. Dated 30.12.1999 and declare that they are ultra vires the Industrial Disputes Act and Articles 14 and 16 of the Constitution of India to the exent it prescribes a minimum of 3 years continuous service for

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OPCAT 3488& 3521/2011

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granting preference in re-employment for Gramin Dak Sevak and to direct the respondents not to implement the said condition as against the applicant;

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ii) To direct the respondents to engage the applicant as Gramin Dak Sevak in preference to persons with lesser service as Gramin Dak Sevak in Alappuzha Division;

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iii) to call for the records leading to Annexure A2 and quash the same and to direct the respondents to consider the applicant for appointment to the post of GDSBPM, Pallithodu in preference to the 4^th applicant,

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iv) grant such other reliefs as may be prayed for and the court may deem fit to grant, and v) Grant the costs of this Original application.”

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The claim was resisted by the Department, pointing

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out that the applicants were not engaged as provisional hands, but only on stop gap arrangement, though it was conceded that in respect of the applicant in O.A No. 847/2010, there was some provisional engagement as well.

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OPCAT 3488& 3521/2011

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In any view of the matter, by virtue of the relevant stipulations in the O.M. and the Circular issued by the Department, continued engagement as a provisional hand will not confer any right upon such employees engaged as GDS and that the right of re-employment will be available only to persons who were engaged as provisional hands based on a selection and that Annexure A1 was not applicable in the case of the persons engaged on stop gap arrangement. During the course of hearing, it was brought to the notice of the Tribunal from the part of the applicants, that under similar circumstances, the benefit of regularisation though was initially denied by the Tribunal in O.A. No. 146/2002, interference was made by this Court as per Ext.P4 judgment dated 1.3.2005 in W.P.(C)No. 17727/2004, whereby the benefit of regularization was given. It is pointed out that, SLPs were preferred against the said verdict and interim order of stay was there. The

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OPCAT 3488& 3521/2011

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applicants in the present O.As. claimed that they were also entitled to similar relief, which contention was accepted by the Tribunal, in turn granting the relief flowing from Ext.P4; subject to the outcome of the SLPs pending before the Supreme Court as per Ext.P3. This is under challenge in these Original Petitions preferred at the instance of the respondent in the O.As.

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The learned Standing Counsel appearing for the petitioners points out that the prayers raised by the applicants were entirely different from the relief granted by the Tribunal. It is also pointed out that as per the relevant OM/Circular, so as to provide alternate employment, 'continuous service of three years' was necessary, which admittedly the applicants were not having and it was hence they had sought for a declaration that the stipulation in this regard in the relevant OM/Circular was ultra vires. This issue has not been decided by the Tribunal, which in fact had to

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OPCAT 3488& 3521/2011

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be considered in the light of the pleadings put forth in Ext.P2 reply statement filed by the petitioners with reference to the actual facts and figures and also in the light of the relevant provisions of law. Despite this, the Tribunal sought to extend the benefit based on Ext.P4 verdict passed by this Court, which stands on a different footing and it is stated as not applicable to the case in hand.

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On going though the contents of Ext.P4 verdict, we find that the prayers raised in O.A.146/2002, as extracted in the opening paragraph of Ext.P4 verdict, were entirely different and the declaration/direction sought for by the applicant therein was to give the benefit of regularization with effect from the date on which he had completed three years of continuous provisional service. The factual position therein was considered by the Tribunal and it was held that no automatic regularization could be ordered and hence the claim for regularization was virtually disallowed by the

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OPCAT 3488& 3521/2011

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Tribunal. The factual position involved in the said case as to the nature of engagement, the subsequent developments, the continued engagement of the applicant on a provisional basis, the cessation of the contingency in respect of the slot vacated by the original incumbent who was on 'put off' duty by virtue of the culmination of the disciplinary proceedings, thus making the slot vacant for ever, to be filled up by regular selection, the lapse/delay from the part of the Department in filling up the posts on regular basis, despite the fact that the slot had become vacant for ever at least on 28.12.2000 (paragraph 11) and such other relevant aspects were taken note of. It was in the particular facts and circumstances that, this Court found it necessary to make interference, in turn directing regularization as per Ext.P4.

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Reference is also made by the learned Standing Counsel for the petitioners to the relevant OM and the Circular (copies of which were not produced before the

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OPCAT 3488& 3521/2011

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Tribunal). It is pointed out that, absolutely no ground is raised to sustain the relief sought for as to why the stipulation contained in the Circular/OM was bad; which according to the petitioners is perfectly within the four walls of law and is not assailable under any circumstances.

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The factual position and sequence of events therein are not similar to the factual position pleaded by the applicants in the O.A. The reliefs sought for were entirely different from the relief sought for in the other case. This being the position, we are of the view that Ext.P4, as such, is not applicable to the case of the applicants and that the Tribunal fell in error, in simply making the same applicable and extending the benefit flowing from Ext.P4 to the applicants in the present O.As. as well. At the same time, it is to be noted that the merit of the relief sought for was not considered and decided based on the pleadings raised by the parties on both the sides.

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OPCAT 3488& 3521/2011

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In the above circumstances, we set aside

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Ext.P3 and remit the matter for being considered afresh by the Tribunal with regard to the specific prayers and pleadings raised by both the sides. Since it is an old matter, we reasonably hope that the matter will be finalized by the Tribunal as expeditiously as possible.

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The Original Petitions are disposed of as above.

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Sd/-

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P. R. RAMACHANDRA MENON

JUDGE

Sd/-

SHIRCY V.

JUDGE

ks.

True copy

P.S. To Judge

Union of India v. Sini T.R.

Case brief

What is this about?

What did the court decide?

Union of India v. Sini T.R.

Case brief

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