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Judgment
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
“(i)That this Hon’ble Tribunal be pleased quash the Memo No. B-11/GDS/Engagement/Dlgs/2016, dated 31.8.2016, at Annexure A6, issued by the Supdt. Of Post Offices, Raichur by which the services of the applicant has been terminated by cancelling her engagement, in the interest of justice and equity.
(ii)To direct the respondents to consider the case of the applicant for regularizing her services in the same existing vacant post, or in any alternative post, in the interest of justice and equity.
(iii)To pass such orders as this Hon’ble deems fit and expedient in the facts and circumstances of the case including the cost of this application.”
Originally this matter was heard and disposed of by this Tribunal vide order dated 09.10.2017 observing that while applicant had acquired a legitimate right of being placed in the accommodation in the next arising vacancy, they have to keep the applicant in the waiting list and directed that in the first instance itself an order to be passed accommodating her in the available vacancy anywhere.
On the challenge made to the said order by the respondents before the Hon'ble High Court of Karnataka in Writ Petition No. 200136/2018, the same came to be allowed vide order dated 07.06.2024, setting aside the order of this Tribunal passed in OA No. 884/2016 dated 09.10.2017 and restoring the matter to the file of this Tribunal, Bangalore Bench keeping open all the contentions of the parties making it clear that no adjudication has been made on merits of the case. This order was communicated to this Bench by the original respondents through MA No. 199/2026 filed on 01.06.2026. This MA was heard and allowed by order dated 31.07.2026, and accordingly, directed the Registry to list the matter for hearing. On 18.09.2026 at the request of the learned counsel appearing for the applicant, the matter was adjourned to 14.10.2026. Accordingly, the matter is listed today for hearing afresh before this Bench.
Facts in brief are that the applicant was engaged as officiating GDS BPM, Hospet BO along with Yermaras SO under Raichur HO on stop gap arrangement, in the vacant post caused due to promotion of the incumbent as Postman. The applicant claims that she is working in the said post since 09.10.2012 and has put in about four years of unblemished service in the department. Recruitment Notification dated 27.01.2014 was issued to fill up the said post of GDS BPM, Hospet BO along with Yermaras SO on regular basis. The applicant also participated in the said selection process but was not successful. One Shri Sahib Naik was selected and was appointed as BPM. He worked for some time and resigned the job, therefore, a second Recruitment Notification dated 10.05.2016 was issued to fill up the said post on regular basis. Though the applicant participated, but could not succeed. One Smt. Nivedita is said to have been selected but she also did not join the post. Therefore, the applicant claims that she continued to work as BPM on stop gap arrangement, however, the SPOs, Raichur vide Memo dated 31.08.2016, has issued orders cancelling the engagement of the applicant on the ground that there is a proposal for online selection of Gramin Dak Sevaks. Being aggrieved, the applicant has approached this Tribunal.
Learned counsel Shri K. Govindaraj representing the applicant submitted that the applicant was continuously engaged as GDS BPM on stop gap arrangement basis since 09.10.2012, renewing the appointment at every three months for about four years. As such, she should be considered for regular appointment to the said post instead of selecting another person, or in the event of offering appointment to the selected candidate, alternatively, she has to be provided with any other GDS post as per the provisions of the rules. Learned counsel has emphasised on the instructions contained in sub para (2) of DG Posts OMs dated 18.05.1979 and 30.12.1999, incorporated as para 17, under Section IV (under the head-Method of Recruitment) of GDS (Conduct and Employment) Rules, 2001 (‘Rules’ for short). Learned counsel submits that non-consideration of the applicant in the light of the said OMs is violative of the said instructions and untenable in law. Learned counsel made an endeavour to distinguish the judgment of the Hon’ble High Court of Karnataka in Writ Petition No. 24557/2013 (DD: 18.11.2013) (The Superintendent of Post Offices and Ors. vs. Sandeep H.L.) submitting that the employee therein continued for different spells from 22.09.2008 to 02.11.2011, whereas the applicant herein has worked for nearly about four years. Hence, her case has to be considered as per para 17 (2)-the provisional appointment of ED agents.
Learned counsel Shri S. Prakash Shetty representing the respondents placing reliance on the order of Hon’ble High Court of Karnataka in Sandeep H.L., supra, submitted that the issue involved herein is squarely covered by the said decision, and accordingly, the OA deserves to be dismissed since the applicant was appointed on stop gap arrangement. Para 17 (2)-provisional appointment of ED agents is not applicable to the present case. The applicant though participated pursuant to two Recruitment Notifications issued to fill up the post of BPM, Hospet BO, she could not succeed because of her low merit. There being difference between stop gap arrangement and provisional appointment, the applicant cannot claim either for regularization or to place her in the waiting list as the provisional candidate. Thus, justifying the cancellation of engagement order of the applicant dated 31.08.2016, seeks for dismissal of the OA.
We have carefully considered the submissions of the learned counsel for the parties and perused the material on record.
It is not in dispute that the applicant was engaged as GDS BPM, Hospet BO along with Yermaras SO on stop gap arrangement, the same has been substantiated by the stop gap arrangement orders placed on record by both the parties. The applicant has accepted the stop gap arrangement knowing well that the engagement is purely temporary and liable to be terminated without notice and without assigning any reason. Reliance placed by the learned counsel for the applicant on para 17 (2)-provisional appointment of ED agents based on DGP&T letter dated 18.05.1979 and Circular dated 30.12.1999 has no relevancy to the facts of the case for the following reasons.
For the better understanding, para 17 referred to above is extracted hereunder for ready reference:
“(17)Provisional appointment of ED Agents-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 appointments 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 appointments should not be made to fill the vacancies caused by the 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 appointments 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 ED Agent 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 ED Agent is put off duty pending departmental or judicial proceedings against him and it is not possible to ascertain the period by which the departmental/judicial proceedings are likely to be finalized, a provisional appointment may be made, in the form annexed (Annexure-B). It should be made clear to the provisionally appointed persons 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 an appointment is made to fill the vacancy caused by the dismissal/removal of an ED Agent and the dismissed/removed employee has not exhausted all channels of appeal, the 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 ED Agents who are appointed provisionally and subsequently discharged from service due to administrative reasons, if at the time of discharge they had put in not less than three years' continuous approved service. In such cases, their names should be included in the waiting list of ED Agents discharged from service, prescribed in D.G., P.&T., Letter No.43-4/77-Pen., dated 23.2.1979."
This provision specifically refers to provisional appointment. It is trite that provisional appointment is different and distinct from that of stop gap arrangement. This issue has been extensively considered by the Division Bench of the Hon’ble High Court of Karnataka in Sandeep H.L., supra, wherein it is held thus:
“7.The method of recruitment on regular basis is also prescribed under the Rules. The minimum and maximum age limit is prescribed apart from educational qualifications for being appointed on regular basis. Interviews will be conducted to find out the suitability of the candidate for the post of GDSMD.
From the aforementioned Rules, it is amply clear that even for making provisional appointment the candidate has to undergo the process of regular appointment. The list of provisional appointees would be prepared by the petitioners for being appointed provisionally on subsequent dates. Such list will be prepared after following the due process laid down for the appointment on regular basis. Thus, it is clear that a candidate who is appointed on provisional basis also will have to undergo test prescribed for regular appointment. On the other hand, for availing the services of a candidate on stop-gap arrangement, the Department need not have to post the candidate to undergo process of regular appointment. Aforementioned Rules clearly reveal that on no circumstance, should provisional appointment be made without following the formality which is prescribed for regular appointment. Since whole process of such selection will take about 60 to 90 days, stop-gap arrangement may preferably made at the local level by way of interim arrangement, through combination of duties or by allowing the GDS from a neighbouring office to function. Under no circumstances, such local appointment should exceed 90 days. Due to some unavoidable reasons, if the local appointment needs to be continued beyond 90 days, approval of the next higher authority is to be taken on one time basis for the reasons to be recorded in writing. Thus, it is clear that a stop-gap arrangement is nothing, but a local appointment for delivering mails on day-today basis till provisional or regular appointment is made. The stop-gap appointee has no right to claim regular appointment under the Rules.
In the matter on hand, the respondent was admittedly taken on duty on local appointment/stop- gap appointment. He was not appointed provisionally. He has not passed the test or has completed the formality which is prescribed for regular appointment. In this view of the matter, it is not open for the respondent to claim continued service on regular basis and consequently, the Tribunal is not justified in directing the petitioners to include the name of the respondent in the list of candidates who will be appointed regularly. Hence, the impugned order is liable to be quashed. Accordingly, the following order is made:-
The impugned order dated 13.2.2013 passed in O.A.No.499/2011 is quashed. Writ petition is allowed accordingly.”
In the light of this judgment it is clear that a stop gap arrangement is different from provisional appointment and the same being an interim arrangement, the stop gap appointee has no right to claim regular appointment under the rules or to place her in the waiting list, hence, the arguments advanced on behalf of the applicant that if she is not regularized, alternatively she ought to have been placed in the waiting list is wholly misconceived. Stop gap arrangement cannot be equated with provisional appointment which requires the formality/procedure prescribed for regular appointment to be fulfilled. No vested right is created to a stop gap appointee to get automatically regularized in the post. The impugned termination order is issued in view of proposal for online selection of Gramin Dak Sevaks. Appointment of candidates on regular basis in terms of the statutory rules and thereby replacing the stop gap appointee/applicant cannot be faulted with. The applicant had an opportunity to participate in the recruitment proceedings initiated, indeed she availed it but unfortunately she could not succeed. Hence, she cannot now seek backdoor entry contrary to the Rules.
For the reasons aforesaid, OA is bereft of merit, and accordingly, stands dismissed.
No order as to costs.