Narendra Kumar Tiwari vs Union Of India & Ors.

Delivered by Hon’ble Mr. Mohan Pyare, Member-(Administrative) Shri Ashish Srivastava, learned counsel for the applicant and Shri Saurabh, learned counsel for the respondents are present.

By way of this original application the applicant has sought the following reliefs:-

The brief facts as stated by the applicant are that the applicant was appointed on 08.02.1991 as EDDA in the Branch Post Office, Ghoredeeh Khain. The applicant was issued regular appointment order on 01.05.1997 against the post and was continuously working on the said post. Suddenly on 14.01.2008 the applicant was stopped from working for the post of GDS Mail Distributor.

It is further submitted by the applicant that the applicant preferred a representation dated 25.01.2008 requesting for alternative appointment in his favour. On 19.03.2008 the respondent no.4 offered alternative appointment to the applicant appointing him provisionally to the post of GDS Mail Carrier Ghoredeeh Khain. On 20.03.2008 the applicant has taken over the charge on the said post. Vide order dated 28.03.2008 the aforesaid order of alternative appointment was cancelled and the applicant was ordered to be relieved with immediate effect. On 02.04.2008 the applicant preferred representation before the respondent no.2. Again on 16.04.2008 the applicant preferred detailed representation before the respondent no.2. On 03.06.2008 the representation of the applicant has been rejected relying upon the GDS Conduct and Employment Rules, 2001. Aggrieved by the order of the respondents the applicant has filed the present original application.

In their counter reply the respondents have submitted that it is relevant to point out here the case of forged payment of Mos relating to old age widow pension which came in picture against Sri Nagendra Kumar Tiwari, EX EDDA Ghoredeeh B.O. (Khain) Allahabad. When the said case came into light, the said Nagendra Kumar Tiwari submitted an application on 8.2.1991 for one month's leave, which was sanctioned and he was relieved accordingly by engaging as substitute to his real brother namely Narendra kumar Tiwari on the said post of TODA Ghoredeeh. In connection with said fraud case, the said applicant was made put off duty vide SDI (P) Meja, Allahabad memo no. dated 25.3.1991. Thereafter on completion of the enquiry against Sri Nagendra Kumar Tiwari, the said case was decided by SDI (P), Meja Sub Division, Allahabad vide memo no.A/Ghoredeeh dated 31.7.1992 whereby the said Nagendra Kumar Tiwari was awarded the punishment of dismissal from service. It is relevant to mention here that on dismissal from service of Sri Nagendra Kumar Tiwari, the said applicant who was working as substitute on the post of EDDA Ghoreedeeh was appointed on the said post by mentioning the clear remark of engagement vide SDI (P) Meja Allahabad Memo No. A/Ghoredeeh/97 dated 1.5.1997. It was also mentioned clearly in the said memo that the said engagement of the applicant will at any time be terminated without assigning any reason/prior information. It is also stated by the respondents that no permanent/regular appointment of said applicant was made on the post of EDDA Ghredech Branch Post Office (Khain), Allahabad. Thereafter Shri Nagendra Kumar Tiwari submitted an appeal/representation against the punishment order of dismissal from service. As the said appeal was not filed within the time prescribed therefore, the same was rejected by R.O. vide letter dated 10.5.2005. Feeling aggrieved Sri Nagendra Kumar Tiwari filed O.A. no. 772 of 2005 before this Tribunal which was decided on 04.01.2007. In pursuance of the order of this Tribunal dated 4.1.2007, Nagendra Kumar Tiwari filed an appeal dated 17.1.2007 before the appellate authority. The said appeal of Nagendra Kumar Tiwari was decided vide order dated 1.3.2007 in which it was mentioned that the disagreement note submitted in the enquiry report was not speaking, due to which the alleged employee could not get proper opportunity for submitting his representation. Hence, it was ordered to do the needful in the matter by treating afresh from the stage of receiving the enquiry report. Vide appellate order dated 1.3.2007 the SDI (P), Meja awarded the punishment of debarring to appear in Departmental Examination for the next three years and ordered to Nagendra Kumar Tiwari for taking over charge of his original post on EDDA, Goredeeh, B.O. (Khain). Allahabad vide order dated 9.01.2008. In continuation of his order dated 9.1.2008 the SDI (P) Meja addressed to GDS BPM, Ghoredesh B.O. vide letter no. A/Ghoredeeh dated 11.1.2008 for relieving the applicant from the post of GDS MD Ghreedeeh and for handing over the charge to Nagendra Kumar Tiwari from the post of GDS MD Ghreedeeh with immediate effect. Accordingly, the said Nagendra Kumar Tiwari joined on the post of GDS MD Ghoredeeh BO (Khain), Allahabad on 14.1.2008 F/N and the applicant was relieved from the post of GDS MD Ghoredeeh BO on the same day i.e. on 14.1.2008 F/N. Lateron the SDI (P) Meja, Sub Division, Allahabad without obtaining any approval from his office and by treating him as retrenched employee appointed the applicant provisionally on the post of GDS MC Ghoredeeh BO (Khain), Allahabad. When the said fact came to the notice of SDI (P), Meja Sub Division, Allahabad, a letter dated 28.3.2008 was issued for relieving the said applicant with immediate effect. Accordingly, the SDI (P), Meja Allahabad issued orders for cancellation of appointment order and for relieving the applicant from the said post with immediate effect vide letter dated 28.3.2008. Accordingly, the said applicant was kept away from the duty w.e.f. 29.3.2008. Aggrieved by the action of the respondents the applicant filed O.A. No.506 of 2008 before this Hon'ble Tribunal, which was decided on 8.5.2008 with direction to the respondents to consider and decide the pending representation of the applicant dated 16.4.2008 in accordance with law, relevant rules and statutory circulars exercising unfettered discretion within a period of six weeks of the receipt of certified copy of that order. In compliance of the order of this Tribunal the applicant filed an application dated 14.5.2008 before the respondents, which was received on 15.5.2008. Thereafter the representation of the applicant was decided vide order dated 3.6.2008 whereby the said representation of the applicant has been rejected. Feeling aggrieved, the present O.A. has been filed by the applicant. It is further submitted by the respondents that the SDI (P) Meja, Sub Division, Allahabad without obtaining any approval from the office and by treating the applicant as retrenched employee, provisionally appointed the applicant on the post of GDS MC Ghoredeeh BO (Khain), Allahabad. When the said fact came to light the SDI (P), Meja Sub Division, Allahabad vide letter dated 28.3.2008 relieved the applicant with immediate effect. Accordingly, the SDI (P), Meja, Allahabad issued an order for cancellation of said appointment order and for relieving the applicant from the said post with immediate effect with his memo dated 28.3.2008. Accordingly, the applicant was kept away from the duty w.e.f. 29.3.2008.

In the rejoinder affidavit the applicant has reiterated almost the same facts which has been mentioned in the original application and further submitted that the applicant was offered appointment on 8.2.1991 and pursuant to the same the applicant had been continually working since 1.5.1997. The applicant thereafter was continuously working upto 2007 when the original incumbent came to join the post. Under the rules the provisional appointee shall have to leave the post on joining of the regular incumbent however the provisionally appointed candidate would be provided alternative appointment.

Heard the rival submissions of both the learned counsel for the parties and perused the pleadings on record.

Learned counsel for the applicant have mainly relied on two issues, that provisionally appointed candidate (applicant) should have been provided alternative appointment under the rules and the order dated 28.03.2008 was a decision without following the principles of natural justice.

Learned counsel for the respondents has relied on Rules 29 of Old Service Rules for Postal Gramin Dak Sevak which is now Rule No.34. Relevant portion of rule is reproduced below:-

He has also relied on the judgment of the Hon’ble Apex Court in the case of Union of India and Another Vs. Raghuwar Pal Singh, (2018) 2 SCC (L&S) 823 in Civil Appeal No.1636 of 2012 decided on 13.03.2018. The relevant portion of the order is reproduced below:-

The appointment letter dated 01.05.1997 is reproduced below:-

Perusal of the above letter clearly indicates that approval of the competent authority was not obtained while appointing the applicant. It was also mentioned that undersigned reserved the right to terminate his engagement at any point of time without notice and without assigning any reason. Once the old incumbent Shri Nagendra Kumar Tiwari was taken back, the applicant was relieved by a letter dated 11.01.2008. On 19.03.2008 Narendra Kumar Tiwari was again taken back provisionally in service treating him as retrenched employee. Again on 28.03.2008 he was removed and he further requested to appoint him in the vacant post due to death of Shri Jatta Shankar Shukla in the Post Office Khain. He has further submitted another representation dated Nil to Senior Superintendent of Post Office Allahabad Division which was received in the office on 16.04.2008 in the Khain Post Office. When there was no action taken on the above representation applicant has approached this Tribunal by filing OA No.506 of 2008 which was decided on 08.05.2008 with a direction to decide the representation of the applicant dated 16.04.2008. The above representation was decided by the competent authority amongst the respondents by passing a detailed and reasoned order. In the order dated 3.6.2008 it was clearly mentioned which reads as under:-

“उक्त नियुक्ति इस कार्यालय की अनुमति प्राप्ति किए बिना ही की गई जबकि जीडीएस (कण्डक्ट एण्ड इम्प्लायमेंट) नियमावली 2001 के सेक्शन-IV रिकूटमेंट मेथड (Method of recruitment) चैप्टर के नियम -29 के अनुसार नियुक्ति के पूर्व मामले का पूर्ण विवरण भेजते हुए उपमण्डलीय डाक निरीक्षक मेजा इलाहाबाद को इस कार्यालय की अनुमति प्राप्त करनी चाहिए थी ।

... “मैं अशोक कुमार प्रवर अधीक्षक डाकघर पत्रावली पर उपलब्ध सभी अभिलेखों को श्री नरेंद्र कुमार तिवारी द्वारा प्रस्तुत भलीभांति अध्ययन करने के पश्चात इस निष्कर्ष पर पहुंचा हूँ कि श्री नरेंद्र कुमार तिवारी को विभाग द्वारा किसी जीडीएस पद पर कभी नियुक्ति नहीं की गई वे केवल नियुक्ति जीडीएस कर्मचारी के स्थान पर एमजीदार (Substitute) के रूप में कार्य किए हैं अतः उन्हें विस्थापित (Retrench) कर्मचारी स्वीकार करना उचित नहीं है और उन्हें किसी प्रकार विस्थापित कर्मचारी मानकर समायोजन करना नियम विपरीत एवं न्याय संगत नहीं है अतएव श्री नरेंद्र कुमार तिवारी का प्रतिवेदन दिनांक नील जो इस कार्यालय में दिनांक 16 4 2008 को प्राप्त हुआ है को अस्वीकार एवं निरस्त करता हूँ।”

It is very clear that Shri Narendra Kumar Tiwari (applicant) was appointed as substitute after dismissal of Shri Nagendra Kumar Tiwari and after his reinstatement the applicant was relieved. Subsequently in a letter dated 19.03.2008 he was re-engaged as substitute and that to without any approval of the competent authority. Again he was relieved by a letter dated 28.03.2008 as his appointment was not proper. Against that relieving order he has made detailed representation. Once department has not taken any action on the said representation, he has approached this Tribunal and based on the order of this Tribunal the competent authority amongst the respondents has issued detailed reasoned and speaking order covering all the relevant facts. Hence we cannot say that the applicant was not provided opportunity and there is any violation of principles of natural justice.

Based on the above facts, it is clear that the applicant was appointed as substitute to Mr. Nagendra Kumar Tiwari and regularized without the approval of competent authority. His removal on 28.03.2008 is in accordance with relevant rules and terms of service mentioned in his appointment letter and hence he has failed to establish his relief sought in this original application and accordingly, the original application is devoid of merit, hence liable to be dismissed.

In view of the above, the original application is dismissed. No Costs. All pending MAs, if any, stand disposed of.

(Mohan Pyare) (Justice Om Prakash VII) Member (Administrative) Member (Judicial) /Neelam/