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Judgment
1 The writ petitioner has prayed for writ in the nature of certiorari for quashing order A/Dadsar/87 dated 27.7.1987 wherein the petitioner has
been asked to handover charge of ED BPO Dadsar to Krishan Pandit who's appointment as BPN dadsar has been approved (annexure C) and
further for regularisation of petitioner's services. The petitioner permanent resident of state of J&K was appointed as ED Packer on adhoc basis by
respondent No 2 vide his order dt 29 9.81 (annexure A), The petitioner worked as such ED Packer from his appointment in Sept. 1981 till 17th
of Nov. 1986 against post of ED Packer SPO at Sadsara. On the death of BPM Dadsar the petitioner was given the charge of the office of BPM
Dadsar and performed duties as such (annexure B) The ED agents which term includes the petitioner, are governed by the post and Telegraphs
extradepartmental agents (conduct and service rules 1964) (hereinafter for short as rules 1964). One of the condition of appointment as ED BPM
at the particular post office, is that the incumbent has to be permanent resident of village where the Branch Post office is located. The condition of
residence in post village where ED BPM is located, is provided by the rules and cannot be dispensed with Subject to availability of vacancy of ED
BPM or SPM preference is to be given to ED agent rather than to an outsider. The alleged, appointment of the petitioner as ED BPM is not
vidative of rules. Despite appointment and functioning as ED BPM Dadsar the petitioner's service were not regularised. Instead by impugned order
annexure C Shri Kishan Pandit has been posted as ED BPM Dadsar and his services as such stand terminated. The services of adhoc appointees
like petitioner who continued on the post for number of years cannot be terminated in an arbitrary manner and more so when this action is actuated
by malice. The benefit of appointment cannot be withdrawn from an employee unilaterally.
After the case was admitted to hearing, the counsel for the respondents opted for adoption of the objections as reply. Petitioner's appointment
on adhoc basis as ED packer at Dadsara on 29.9,81 is admitted. He is averred to have worked as such ED agent upto 20th of April 1985 when
on account of downgrading of ED SPO to ED BPO at Dadsara, the post of ED packer held by the petitioner got abolished and the petitioner was
retrenched, thereby the adhoc appointment as ED packer of petitioner came to an end on 20.4.85, whereafter despite being put on the waiting list
of retrenched ED Agents, he could not be absorbed against any available vacancy during operative period of the said list Once the petitioner could
not be absorbed during operative period of one year, the list lost its life and validity and consequently the petitioner ceased to have any claim for
his absorption as ED agent.
Notwithstanding all this the petitioner was given the charge as ED BPM Dadsar on 17.11. 1986 only as a provisional arrangement after the ED
BPM Sh. Shamlal Pandit died during service. He continued to hold the charge and functioned as ED BPM till July 1987 when one Sh. Jaikrishan
Pandit S/o. Shamlal Pandit was appointed as ED BPM dadsar on compassionate grounds and the requirement of local residence was also relaxed
in his case. The provisional arrangement of giving ED BPM post in the charge of the petitioner stood terminated. Despite directions of highups in
the department as petitioner failed to handover the charge of office, record and articles to the newappointee, the said Jaikrishan under orders
operated from a new place and used new set of stamps prepared by the department. The respondent No 4 is functioning as ED BPM dadsar
thereafter. The provisional arrangement and engagment of petitioner as ED BPM dadsar on the death of Shamlal Pandit who held the post of ED
SPO Dadsar was ordered by respondent No 2, to be approved by respondent No 1 The provisional arrangement did not confer any right on the
petitioner. Respondent No 4 has in terms braced the very ground as culled above to defend his appointment as ED BPM at Dadsar Tral.
The petitioner's claim that he continued functioning as ED packer at Dadsara till 17.11.1986 is disputed. Instead the said adhoc appointment of
the petitioner is stated to have come to an end on 20.4.1985, with down gradation of ED SPO to that of ED BPO at Dadsara. The appointment of
petitioner ordered by respondent No 2 Inspector post Office is without competanc as he had no powers to order such an appointment.
Respondent No ,4's appointment in place of death of his father Shamlal Pandit as ED BPM Dadsar on compassionate grounds is covered by law.
He has assumed charge and is functioning as such BPM. The impugned order has been passed in accordance with law and therefore cannot be
quashed.
Neither respondent No.4 nor his counsel has appeared to defend the case, after March 1988. Mr. S. A. Naik Add! Standing counsel of Union
of India concedes that respondent No.4 is a migrant and has left the valley for last so many years.
At the outset standing counsel for respondents 1 to 3, submits that the matter and issue raised in this petition falls within writ jurisdiction of this
court He is joined by counsel for the petitioner to submits that the matter may be heard and decided.
Heard, perused the record and considered the matter
Much of the material facts in this case are not in dispute. The main question raised for adjudication before this court in the legality or otherwise
of the appointment of respondent No.4, as ED BPM Dadsar in July 1987,
The extradepartmental agent system is invoked in the department of posts and Telegraphs for long. The services of various persons and for the
most part in rural areas, are availed to run the postal service through this EDA System. In 1964 rules were framed to regulate the appointments,
promotions, payment of allowances and pensions, conduct and discipline, provision of enquiries for indiscipline and misconduct etc of EDAgents.
These rules are called the Post and Telegraph ExtraDepartmental Conduct and Service Rules, These Rules of 1964 also specify the categories of
posts and the incumbents of such posts as extradepartmental agents. In this case we are in main concern with the method of recruitment on
compassionate appointment in ease of death providing for by these rules.
In terms of Rule 2 of the Rules ED packer ED SPM and ED BPM are defined as EXTRA DEPARTMENTAL AGENT. The qualification for
ED SPM and EDBPM is matriculate and for other categories of ED's, it is 8th standard. Besides other conditions provided for the occupants of
ED SPM/ED BPM it is a requirement that the person appointed to either of those must be permanent resident of village where the post Office is
located. The reason being to enable him to attend to the post office work efficiently and efficatiousiy having regard to the nature of the work at the
post office. In the process, the official work at the post office need not be adjusted in a manner to suit the timings, convenience or main avocations
of ED Agents.
While providing for compassionate appointment to dependants in case of death in respect of ED posts, certain conditions have been laid which
have to be fulfilled and in main it is provided that even in such a case, conditions applicable to regular employees of Postal Department have to be
met and offering of employment to the dependent of an ED Agent who has died in service leaving behind the family in indigent circumstances has to
be given only in very hard and exceptional cases In terms of instructions supplied on the subject it is provided that all such cases should be taken at
the earliest and finalised expeditious ?v In no circumstances, it should be left to dependants to come up with the request for compassionate
appointment bilatedly or at the time of their choosing. In terms of the instructions and clarification issued by Postal Department of the Union of
India, it has been specifically provided that widow/widowers as dependant of deceased ED Agents can be given relaxation subject to conditions
provided thereto in matter of qualification, but the rules no where provided that the local residence qualification required for appointment to the
post of ED BPM/ED SPM can be relaxed, and in any case no such rule has been brought to the notice of this court In these circumstances, the
appointment of respondent No.4 Jaikrishan Pandit not resident of Dadsara, where the post of ED BPM was available as ED BPM Dadsara, is in
violation of rules and instructions issued thereunder,
Petitioner was appointed as ED Packer on adhoc basis in SPO Dadsara en 29 9.81 and was given charge of ED BPM at Dadsara on
17.11.1986. Though, the certificate indicating assumption of charge by petitioner on the said date is evidenced by annexure B, no separate order
of appointment as ED BPM of petitioner is on record. But all the same the Inspector Post Office Srinagar respondent No. 2 in his note has
mentioned at item No.3 that the petitioner was engaged provisionally BPM at Dadsara till further orders subject to approval of Sr, Supdt. Post
office respondent No.1 and directed post master. Trai to give necessary training to the petitioner (annexure 1). Even in reply, it is not refuted that
the appointment of petitioner as ED SPO Dadsara was ordered on 17.11.86 by Inspector.
In terms of the rules of 1964, the Inspector of Post Offices has been authorised to make appointment in anticipation and formal approval of the
Supdt of Post offices, where there is no contest for the post of ED BPM and in such a case the formal orders to be issued by the competent
appointing authority, the Division of Supdt are expected in routine and the appointing authority is in terms of the rules obliged to issue such orders.
It is only in case where several claimants lay claim to the post of ED 8PM, the inspector of Post Office is required to obtain prior approval of the
Divisional Supdt. The rules also provided that the provisional appointment to ED Posts can be made. In particular the instructions and rules
provide that where an ED Agent dies in service and immediate regular appointment is not possible a provisional appointment can be made for a
specified period and in which case the appointment order has to be in the prescribed form (annexure A to the rules contained by Chapter providing
for method and mode of recruitment to EDA posts).
In the case at hand, admittedly the appointment has been made by the Inspector respondent No.2. The appointment of petitioner to said EDA
Post is admittedly provisional and made by the Inspector in terms or rules, not with standing that the period for which provisional appointment is
not on the prescribed form.
At the time when the Inspector made appointment only the petitioner was known claimant for the ED Post and no rival claimant had emerged
till then. It was only after the appointment of the petitioner was ordered that the respondent No.4 raised claim for appointment as dependant of the
deceased ED BPM Dadsara. This is even admitted by the respondents in reply, in terms of the Rules, the petitioner had the elligiblity to seek
appointment to the post of EDA at the relevant time including post Village residential qualification.
The case of the respondents that the service of petitioner as ED packer in Branch Post Office trial were terminated on down grading of the
post office as ED SPO at Dadsara and therefore, the petitioner cannot claim that he continued as ED packer till he was given charge of ED BPM
Dadsara, is not supported by required document and material. Even if, it so, then the question arises whether after abolishing of the post as ED
packer, petitioner has remedy in law. The rules of 1964 as on therelevant date, provide that where an ED Agent appointed provisionally and
subsequent discharge from service due to Administrative reasons has put in not less than three years service, the efforts should be made to give
alternate employment to such ED agent. For the purpose their names should be included in the waiting list of ED Agents, discharged from services
prescribed thereto. The instructions issued by Director General of Postal Services also provide same guidelines and are supplemental to the rules.
Even the appointing authority are under legal obligation to ensure that the displaced ED agents are adjusted on alternative posts subject to
applicable rules and guidelines. In terms of instructions issued by highups including the Director General P&T, the appointment to ED BPM and
ED SPM posts has to be strictly in accordance with the rules. The vacancies have to be advertised in order to tap better talent. The eligibility
criteria including the residence of post village have to be strictly complied with. There is nothing on record to reveal that the Rules of 1964 and
compassionate appointment Rules of the Union Govt. as applicable to the Postal department have been complied with while ordering appointment
of Respondent No. 4 The petitioner's case does not seem to have been considered in proper prospective and in the spirit and on terms of the
rules. The provisional appointment of petitioner has been ordered by the authority competent to order such appointments,
The respondent have not pleaded or advocated their case, that while ordering appointment of respondent No.4, the claim and case of
petitioner was also considered within the ambit of rules and that the ED BPM post at Dadsar was filled strictly in accordance with rules.
While throwing away the petitioner from the post of EOAgent, on which post(s) he worked for number of years, it is minimum requirement of
law that he should have been given opportunity to place his case/view point before the authorities and ought to have been heard in the matter Even
this minimal requirement has not been complied with in this case.
It is conceded by counsel for respondents 1 to 3 that respondent No 4 Jaikrishan Pandit is a migrant and has left the valley for last over 8
years and is no more working as ED BPM at Dadsar.
Having thus, considered the matter in totality, the impugned appointment order is quashed and set aside and the petitioner's case shall be
considered by competent Authority including respondent No 1 and 2 or Union of India respondent No.3, for such treatment and disposal as may
be required by and m terms of applicable statutory rules and regulation'on the subject.