Allowed

Director General, Department of Posts v. Johnson T.I

Kerala HC4 Dec 2019OP (CAT)/2402/2013

Case brief

AI extract

What is this about?

The Kerala High Court allowed an original application challenging a Central Administrative Tribunal order granting notional benefits to an employee who joined after the waiting list expired. The Court held that notional benefits were not sustainable beyond the waiting list validity but directed the Department of Posts to maintain transparency and a larger waiting list.

What did the court decide?

Allowed the original petition; directed the Department of Posts to ensure transparency by publishing select and waiting lists immediately and maintaining a waiting list of 3 to 5 times the vacancies.

Director General, Department of Posts Vs… — Pension and Retirement Benefits | Kerala HC (2019)

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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 K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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WEDNESDAY, THE 04TH DAY OF DECEMBER 2019 / 13TH AGRAHAYANA, 1941

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OP (CAT).No.2402 OF 2013(Z)

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AGAINST THE ORDER IN OA 995/2012 DATED 06.07.12 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH

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PETITIONER/S:

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1 DIRECTOR GENERAL, DEPARTMENT OF POSTS DAK BHAVAN, NEW DELHI

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2 THE CHIEF POST MASTER GENERAL KERALA CIRCLE, THIRUVANANTHAPURAM

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3 THE SUPERINTENDENT OF POST OFFICES IRINJALAKUDA POSTAL DIVISION, IRINJALAKUDA 680 121

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4 UNION OF INDIA REP.BY SECRETARY,MINISTRY OF COMMUNICATIONS, NEW DELHI

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BY ADVS.

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SRI.S.KRISHNAMOORTHY, CGC SHRI.P.VIJAYAKUMAR, ASG OF INDIA

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RESPONDENT/S:

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JOHNSON T.I

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S/O.T.P.ITTICHAN, RESIDING AT THAKOLKARAM HOUSE, THUMBAKODE, KANJIRAPPILLY,THRISSUR PO, PARIYARAM (VIA),THRISSUR DISTRICT 68 721

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SRI.ANTONY MUKKATH (AMICUS CURIAE)

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THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 04-12-2019, THE COURT ON 04-12-2019 DELIVERED THE FOLLOWING:

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OP (CAT).No.2402 OF 2013(Z) 2

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JUDGMENT

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K.VINOD CHANDRAN,J.

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None appears for the respondent-applicant despite service of notice and hence we appointed Advocate Antony Mukkath as Amicus Curiae .

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2. The Department of Posts challenge the order of the Tribunal, which directed consideration of the applicant for notional benefits with effect from 2009, though his appointment was made in 2010.

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3. The learned Assistant Solicitor General of India (ASG) argues that there is no question of notional benefits being granted to an employee, even prior to his appointment. It is argued that the applicant was also not entitled to the post in 2009, since he stood third in the selection and

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OP (CAT).No.2402 OF 2013(Z) 3

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the six months of validity of the waiting list stood expired on the date in which the post again fell vacant.

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4. The Tribunal relied on Annexure-A8 judgment in a similar circumstance. The factual circumstance to be noticed is that, there was a selection conducted for the post of Postal Assistant in 2009. Admittedly, the notification was for 15 vacancies, one of which was to be filled up by an Ex-serviceman; to which category, the applicant belonged. As revealed from the counter affidavit, one Harisudhan E., stood first among the Ex-servicemen candidates, who however did not join duty. All the other 14 selected persons joined the post. After Harisudhan expressed his disinclination to join, the next rank holder one Jayakumar M.B, was called for training. He joined

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OP (CAT).No.2402 OF 2013(Z) 4

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training, but however quit after a month. By that time, six months had elapsed.

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5. The Tribunal, as we noticed above, had

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extracted Clause(14) of the procedure, as evident from Annexure-A6 and also relied on

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Annexure-A8 judgment. Clause (14) is extracted here under:

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“(14) Waiting list:

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A waiting list shall be prepared only to the extent of vacancies announced in the relevant category. The candidates of the waiting list may be considered only in case the selected candidates do not respond or refuse to accept the offer. The names of candidates in the waiting list will not be announced. This list will be current for six months only from the date of declaration of result and will be strictly operated against drop-outs from select list and not against any other vacancy or in any other contingency.

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6. Hence a waiting list survives only for

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six months and after that if the vacancy

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OP (CAT).No.2402 OF 2013(Z) 5

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remains or anybody who joined quit, then necessarily, there should be a second notification. On this aspect, we have to notice the dates as available in the reply statement filed by the respondents before the Tribunal. The Recruitment Committee is said to have been held on 05.01.2010 to select persons from the list of candidates found eligible. Hence, a list of selected candidates was prepared on 05.01.2010 when the Recruitment Committee carried out the selection. A waiting list was also prepared,

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which can have currency only upto 05.07.2010, a period of six months. As we noticed, the first rank holder did not accept the offer and the second rank holder was called for the training by communication dated 01.07.2010, just a few days before the expiry of the list. The second rank holder

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OP (CAT).No.2402 OF 2013(Z) 6

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was sent for training, but again quit after one month. Obviously, after the validity period of six months of the waiting list. In such circumstance, we do not find any reason to sustain the directions issued by the Tribunal for considering notional benefits to the applicant.

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7. The learned Amicus Curiae specifically took us to Annexure-A8 and pointed out that it was in a similar instance that another Division Bench allowed the third rank holder to be appointed. Having gone through the judgment, we are of the opinion that though the third rank holder was appointed, there was no declaration that such appointment could be made even after the validity period of the waiting list. In fact, the Division Bench had dilated upon the contention of the Department of Posts that, if there is only

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OP (CAT).No.2402 OF 2013(Z) 7

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one post, there would be only one person in the select list and one in the waiting list. The Division Bench deprecated the manner in which the waiting list was maintained, especially having only number of candidates equal to the number of vacancies, which according to the Division Bench, created further liability to carry out a fresh selection, if the persons in the select list and those in the waiting list either did not join or quit or resigned after joining. In fact, the Division Bench specifically found that “also they do not have a case that Biju, the second among the advised candidates left after the currency of the list”(sic). It was in such circumstance that the third rank holder was directed to be offered the appointment.

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OP (CAT).No.2402 OF 2013(Z) 8

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8. In the present case, admittedly, the second rank holder; who was advised after the first rank holder relinquished his claim, left the training after one month of his joining, which is after six months of the selection list and the waiting list. Hence, the waiting list did not have currency when the second advised candidate left. We do not find compelled to follow the directions in Annexure-A8.

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We allow the original petition, however, we have to caution the Department, insofar as the prescription in Clause (14) extracted herein above, that the name of the selected candidates in the waiting list will not be announced. This could lead to nepotism and back door appointments. It is mandatory that a public body; especially a Department of the Government of India publish the select

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OP (CAT).No.2402 OF 2013(Z) 9

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list and the waiting list immediately after the selection is carried out. The waiting list should also contain at least 3 to 5 times the vacancies notified. We direct the

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Department of Posts, the petitioner to ensure that in future, the procedure is made transparent following our directions herein above. Parties are left to suffer their

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respective costs.

Sd/-

K.VINOD CHANDRAN

JUDGE

Sd/-

V.G.ARUN

JUDGE

SB/05/12/2019

OP (CAT).No.2402 OF 2013(Z) 10

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT EXHIBIT P1 TRUE COPY OF THE OA NO.995/2010 FILED P1 BY THE RESPONDENT ANNEXUR PHOTOCOPY OF THE REVISED RECRUITMENT PROCEDURE E A6 CIRCULATED AS PER LETTER NO.51-2/20003-SPB-I DATED 10.11.04 OF THE DIRECTOR (SPN)

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ANNEXUR PHOTOCOPY EXTRACT OF THE DICHARGE CERTIFICATE E A1 DATD 31.12.07

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ANNEXUR PHOTOCOY OF NOTIFICATION DATED 14.9.09 ALONG WITH E-A2 THE PROPECTUS ISSUED BY THE 2ND RESPONDENT

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ANNEXUR PHOTOCOPY OF THE NOTIFICATION RECRUITMENT OF E-A3 POSTAL ASSITANTS/SORTING ASSISTANTS IN KERALA POSTAL CIRCLE-VAANCY POSITION OF THE 2ND RESPONDENT

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ANNEXUR PHOTOCOPY OF THE MEMO NO.BI/RTI ACT TD. 18.10.10 E-A4 OF THE 3RD RESPONDENT

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ANNEXUR PHTOCOPY OF THE RELIEVING ORDER NO.TRG-1/2E-A5 1/192/10-11 DTD.19.10.10 SRI.M.B.JAYAKUMAR

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ANNEXUR PHOTOCOPY OF THE ORDER DATED 18.7.09 IN E-A7 O.A.NO.311/2008 OF THIS HON;BLE TRIBUNAL

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ANNEXUR PHOTOCOPY OF THE JUDGMENT DATED 24.2.10 IN WPC E-A8 NO.25943 OF 2009 OF THE HON'BLE HIGH COURT.

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ANNEXUR PHOTOCOPY OF THE ORDER DTD. 12.09.07 OM E-A9 O.A.NO.218/2006 OF THIS HON'BLE TRIBUNAL

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EXHIBIT EXHIBIT P2 TREUE COPY OF THE REPLY STATEMENT OA P2 NO.995/2010 FILED BY THE PETITIONER

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ANNEXUR TRUE COPY OF THE ORDER OF THE ORDER OF THE E R1 HON'BLE TRIBUNAL IN O.A. NO.490/09

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OP (CAT).No.2402 OF 2013(Z) 11

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ANNEXUR TRUE COPY OF THE SELECT LIST IN THE YEAR 2010 E-R2 VIDE MEMO NO.BB/53/RECTT/XV DATED 18.11.2010

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ANNEXUR TRUE COPY OF THE MINUTES OF THE MEETING OF THE E-R3 RECRUITMENT COMMITTEE HELD ON 5.1.10

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EXHIBIT EXHIBIT P3 TRUE COPY OF THE ORDER DATED 6/7/2012 P3 IN OA 995/12 OF THE CENTRAL ADMINISTRATIVE TRIBUNBAL, ERNAKULAM BENCH.

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RESPONDENTS EXTS: NIL

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// TRUE COPY //

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P.A TO JUDGE

Director General, Department of Posts v. Johnson T.I

Case brief

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Director General, Department of Posts v. Johnson T.I

Case brief

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