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Judgment
Per Hon’ble Mr. Pankaj Kumar, Member-Administrative In this case relating to termination of engagement of Gramin Dak Sewak (GDS), the applicant has sought following reliefs:
“(1)To quash the impugned order dated 17.02.2022 (contained as Annexure No. A-1 to this OA) and order dated 16.02.2022 after summoning original from the respondents, with all consequential benefits.
(2)To allow the applicant to continue in service without any interruption with all consequential benefits.
(3)Any other relief, which this Hon’ble Tribunal may deem fit, just and proper under the circumstances of the case, may also be passed.
(4)Cost of the present case.”
The facts of the case are that in pursuance to notification dated 12.02.2009 for filling up the vacant post of GDS, Jahnaipur (Pratapgarh), the applicant was appointed as GDS vide order dated 25.06.2009. Following a complaint about the applicant’s appointment in the ground that he was 2nd in the merit list of candidates, his appointment was terminated vide order dated 30.09.2009. The applicant approached this Tribunal in OA No. 416 of 2009 against termination of his engagement as GDS whereupon this Tribunal, vide judgment and order dated 10.12.2009, set aside the termination order dated 30.09.2009 while granting liberty to the respondents to proceed, if so advised, in accordance with law. In compliance, the respondents reinstated the applicant on the post of GDS, Jahnaipur vide order 09.04.2010, issued a show cause notice to him and, after considering his representation, terminated his engagement vide orders dated 15.04.2010 and 16.04.2010 under rule 8(1) of the Gramin Dak Sevak (Conduct & Employment) Rules, 2001.
Subsequently, the respondents decided vide order dated 15.10.2010 to adjust the applicant against the post of GDS in view of the litigation and appointed him as GDS vide order dated 20.10.2010. A Review Application No. 5 of 2010 filed by the respondents against the order dated 10.12.2009 in OA No. 416 of 2009 was dismissed as having become infructuous by this Tribunal vide order dated 19.04.2011.
After more than a decade, the respondents terminated the applicant’s appointment vide order dated 17.02.2022. Aggrieved, the applicant has preferred this OA.
The applicant contends that the impugned order dated 17.02.2022 is punitive and it could not have been given effect without any notice under the garb of termination of arrangement. It is further contended that the impugned order is without reasons.
The respondents state after termination of the applicant’s engagement in April, 2010, one Nagendra Kumar Tiwari, who had secured 1st position, was appointed to the post of GDS, Jahnaipur vide order dated 15.04.2010. They state further that the applicant was also engaged on temporary basis due to exigency of service as GDS, Garwara vide order dated 20.10.2010 with clear direction that his temporary engagement would be subject to the decision in Review Application No. 5 of 2010. They contend that when the applicant submitted application to respondent no. 2 for his adjustment in Gradation List of regular GDS employee as well as to permit him to participate in MTS examination, the matter was re-examined and in view of the fact that the applicant was engaged on temporary basis due to exigency of service and he was not appointed as regular candidate, his temporary arrangement was cancelled vide order dated 17.02.2022.
We have heard both the parties.
It is noted that the GDS (Conduct & Employment) Rules, 2001 were superseded by the GDS (Conduct & Engagement) Rules 2011 which, in turn, have been replaced by the GDS (Conduct & Engagement) Rules 2020 (GDS, Rules).
The termination of engagement of GDS who has not rendered more than 3 years of service can be effected by giving notice by either side in terms of rule 8(1) of GDS Rules extracted below:
“8. Termination of Engagement
(1)The engagement of a Sevak who has not already rendered more than three years’ continuous service from the date of his engagement shall be liable to be terminated at any time by a notice in writing given either by the Sevak to the Engaging Authority, or by the Engaging Authority or any Authority to which the Engaging Authority is subordinate or any other Authority empowered in that behalf by the Government, by general or special order, to the Sevak;” (emphasis supplied)
It is observed that as the applicant had rendered more than 12 years’ continuous service from the date of his engagement, rule 8 is not attracted in the applicant’s case.
The engagement of GDS can be ended as a consequence of penalty of compulsory discharge, removal or dismissal specified under rule 9, after following the procedure prescribed in rule 10 below:
“10. Procedure for imposing a penalty. –
(1)No order imposing a penalty shall be passed except after -
(a)the Sevak is informed in writing of the proposal to take action against him and of the allegation on which it is proposed to be taken and given an opportunity to make any representation he may wish to make; and
(b)such representation, if any, is taken into consideration by the Recruiting Authority:
Provided that the penalty of dismissal or removal from engagement shall not be imposed except after an enquiry in which he has been informed of the charges against him and has been given a reasonable opportunity of being heard in respect of those charges;
Provided further that where it is proposed after such enquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such enquiry.” (emphasis supplied)
However, no penalty has been imposed on the applicant as is manifest from perusal of the impugned order dated 17.02.2022.
The respondents’ plea is that the applicant was engaged on temporary basis due to exigency of service. However, there is no explanation as to how a temporary arrangement, which would be covered under rule 8(1) in our understanding, can last for more than decade. The actions of the respondents are expected to be in conformity of the extant rules; however, it is observed that the impugned order dated 17.02.2022 is dehors the GDS Rules.
It is further evident from perusal of impugned order dated 17.02.2022 that it has been issued without affording opportunity of hearing to the applicant and without assigning any reason. It is manifest that the respondents terminated the applicant’s engagement without observing the principles of natural justice.
Finally, it is observed that the respondents had taken a conscious decision to appoint the applicant to the post of GDS in the context of ongoing litigation (Annexures No. A-10 and A-13 to the OA). Having taken such decision, it was not open for them to take a different view of the matter for the reason that the principle of estoppel bars such course of action.
In conclusion, the impugned order dated 17.02.2022 is bad in law and is liable to be set aside.
In view of the foregoing, this OA is allowed. The impugned order dated 17.02.2022 is quashed and set aside and the respondents are directed to reinstate the applicant and extend consequential benefits as per extant rules to him within three months of receipt of certified copy of this order.
Associated MAs also stand disposed of.
Parties shall bear their own costs.