Neeraj Prkaash vs Union Of India & Ors.

BY JUSTICE OM PRAKASH -VII, MEMBER (J). The present Original Application has been filed by the applicant seeking following reliefs –

The brief facts of the case are that applicant initially allowed to work as C.P Waterman cum Farrash at Govind Nagar Post Office w.e.f. 01.08.1992. A notification dated 16.05.2017 was issued by the respondents to offer GDS vacancies to the eligible casual labours. Since applicant was working in the department as casual labour, he applied for the aforesaid post alongwith all the required documents. Paragraph 14 of the notification stipulates that selection will be made on the basis of merit of High School marks. Applicant also applied for the post of Dak Packer in Bidhnoo Post ^{MANISH KUMAR} Office and Motijeel Post Office. According to the applicant, he has fulfilled all the conditions, which has been prescribed in the notification. When the respondents have not declared the result of the aforesaid posts, applicant sent a representation to the respondent Nos. 3, 4 and 5. Respondent No.2 issued another notification dated 30.10.2017 by which respondents notified for filling up the vacancies of 5314 including the vacancies notified in the notification dated 16.05.2017. Aggrieved against the aforesaid notification dated 30.10.2017, the applicant has filed the present OA.

In the counter affidavit filed by the respondents, the respondents stated that the notification was issued vide memo dated 16.05.2017 whereby 48 vacant posts of GDS employee was required to be filled up. In pursuance of aforesaid notification, applicant applied for but was not found suitable as per provisions mentioned in Rule 33 (4) of GDS (Conduct and Engagement) Rules 2011, thus, the application of the applicant was not considered for engagement. It has also been stated in the counter affidavit that respondents refused to accept his candidature on the ground that the Employment Exchange had not sponsored the name of applicant and he has not submitted proof of registration from the employment exchange with his application form.

Rejoinder affidavit has also been filed in which the applicant has reiterated the facts as stated in the OA and denied the contents of the counter affidavit. It has further been submitted that at the time of engagement of the applicant as casual labour, he has already provided the receipt of registration issued by the Employment Exchange. It has further been submitted that name of applicant has duly been sponsored by the employment exchange and as such the averment of respondents in their counter affidavit that name of applicant was not sponsored by the employment exchange is not sustainable in the eyes of law.

We have heard Shri M.K. Upadhyay, learned counsel for the applicant and Shri K.K. Ojha, learned counsel for the respondents and perused the record.

Learned counsel for the applicant argued that applicant was engaged as CP Waterman cum Farrash in Govind Nagar Post Office, Kanpur. Learned counsel for the applicant further argued that in pursuance of notification dated 16.05.2017 regarding appointment of casual labours on preference basis on the vacant post of Gramin Dak Sevak in Kanpur Eastern Sub Division, Kanpur, applicant has applied for but without cogent reason, respondents have issued another notification dated 30.10.2017 in which the vacancies notified in the notification dated 16.05.2017 has also been included. Learned counsel for the applicant also argued that the vacancies of 48 posts, which was meant for casual labour, has also been notified in the notification dated 30.10.2017 without declaring the result of the earlier selection, which is not permissible in the eye of law. Learned counsel for the applicant next argued that name of applicant has duly been sponsored by the Employment Exchange, Kanpur.

Learned counsel for the applicant has also submitted that in view of judgment of Hon’ble Supreme Court in the case of Excise Superintendent Malkapatnam, Krishna District A.P Vs. K.B.N Vishweshwara Rao and others reported in 1996 Supreme Court Cases (L&S) 1420, respondents are bound to consider the candidature of the applicant.

Learned counsel for respondents has argued that initially a notification dated 16.05.2017 was issued regarding appointment of casual labour on the vacant post of Gramin Dak Sevak in Kanpur Eastern Sub Division, Kanpur but due to administrative reason, fresh notification has been issued. It has also been argued that according to executive instructions of the department, the names of suitable candidates were only requisitioned from the employment exchange. Since the name of applicant was not sponsored by the employment exchange, his candidature cannot be considered.

We have considered the rival submissions and have gone through the entire record carefully.

In the case of K.B.N Vishweshwara Rao and others (supra), the Hon’ble Supreme Court has distinguished the case of Union of India and others Vs. Vs. N. Hargopal and others AIR 1987 SC 2227 and has held

From the perusal of registration receipt (annexed with rejoinder affidavit) issued by the Employment Exchange, Kanpur, it clearly reflects that name of applicant was registered in the Employment Exchange, Kanpur on 14.03.1991 and allotted registration No. U-265/91. Thus, the reason for rejecting the claim of the applicant for the appointment to the post of GDS by the respondents that his name was not registered in the Employment Exchange has no legs to stand and is liable to be refused.

Although in the counter affidavit, respondents have mentioned the provision of Rule 33 (4) of GDS (Conduct and Engagement) Rules 2011 but from the perusal of Rule, no such provision is found in the aforesaid Rule. Vide letter No. 17/23/2016-GDS dated 02.01.2017 issued by the Department of Posts (Establishment Division) to all Chief Postmasters General, it was specifically directed to notify the vacancies through Employment Exchange as per Rule immediately. It has also been mentioned in it that candidate sponsored by the Employment Exchange will be intimated to apply for GDS posts through online process whenever the ^{MANISH KUMAR} notification is issued online.

It is also pertinent to mention here that vide DG Posts letter No. 17-141/88-EDC & Trg. Dated 06.06.1988, it was observed that casual labourers, whether full time or part-time, who are willing to be appointed to ED vacancies may be given preference in the matter of recruitment to ED post, provided they fulfil all the conditions and have put in a minimum service of one year. For this purpose, a service of 240 days in a year may be reckoned as one year’s service. It was also observed in this letter that “it should be ensured that nominations are called for from Employment Exchange to fill up the vacancies of casual labourers so that ultimately the casual labourers who are considered for ED vacancies have initially been sponsored by Employment Exchange”.

It is also evident from the record that applicant had been appointed as Casual Labour on the basis of registration made in Employment Exchange. He is regularly working as Casual Labour. A certificate regarding registration from Employment Exchange has been submitted regarding proof of registration. No document to rebut the registration certificate has been filed at the end of respondents. Thus, it shall be presumed that applicant’s name was sponsored by the Employment Exchange on the request of the respondents and thereafter he was engaged as casual labour. He is working till today as casual labour and he has not been retrenched.

It is also pertinent to mention here that initially a notification was issued by the respondents on 16.05.2017 for appointment of casual labour on preference basis on the vacant post of Gramin Dak Sevak in Kanpur Eastern Sub Division, Kanpur and in pursuance thereof, applicant has applied for because he was working in the department as casual labour w.e.f. 01.08.1992. Before completion of selection process, respondents have issued another notification dated 30.10.2017 for recruitment of GDS in respect of 5314 vacancies including the vacancies, which were earlier notified in the advertisement dated 16.05.2017, thus, action of respondents notifying the fresh advertisement including the vacancy meant for the applicant, is illegal and arbitrary to that extant.

Since applicant is working continuously till today as casual labour, a presumption has been drawn that his name had been sponsored from the Employment Exchange and on that basis he was engaged as casual labour. Thus, denying the appointment of the applicant on the post of GDS is wholly illegal and arbitrary. Thus, in view of law laid down by the Hon’ble Supreme Court in the case law discussed hereinabove as well as factual rule position, we are of the view that prayer made by the applicant for appointment as GDS in lieu of notification dated 16.05.2017 issued by the respondents themselves is acceptable. Since there is stay order with specific direction to the respondents to keep one post vacant for the applicant, we have no hesitation to allow the OA in following manners:-

There shall be no order as to costs. All associated MAs are disposed of.