Priyesh Kumar vs The Union Of India & Ors.

An advertisement was issued for selection of engagement to the post of GDSBPM in the Giridih Division. The applicant participated in the selection process and was selected provisionally vide order dated 07.10.2016 (Annexure-A/1). Thereafter, vide order dated 20.10.2016 issued by the appointing authority, i.e. the Superintendent of Post Offices, Giridih Division Shri B.P. Srivastava, the applicant was ordered to joined his post of GDSBPM at Malda Branch Post Office. The applicant took the charge of the said post on 26.10.2016 (Annexure-A/3).

The appointing authority of the applicant Namely B.P. Srivastava, the then Superintendent of Posts was transferred from Giridih to RMS Dhanbad and the same was challenged by him before this Tribunal at Ranchi in OA No. 11 of 2017. The said OA was disposed of by the Tribunal on 13.01.2017 (Annexure-A/4) directing the Chief Postmaster General (CPMG), Jharkhand Circle, Ranchi to consider and dispose his representation dated 07.01.2017 and till then status quo was directed to be maintained.

Thereafter, the office of CPMG, Jharkhand Circle started making review of the appointments made by Shri B.P. Srivastava. The applicant has come to know that his appointment file was also sent to the office of CPMG, Jharkhand Circle, Ranchi.

It is stated that the applicant has been issued the served Memo dated 14.02.2017 (Annexure-A/5) by the present Superintendent of Post Offices, Giridih Shri B.P. Deo terminating the services of the applicant in pursuance to the proviso to Rule-6(b) and the note below rule 6(b) of GDS (Conduct and Engagement) Rules, 2011 while forwarding its copy to the CPMG, Jharkhand Circle, Ranchi. The above issuance of termination order in pursuance of letter from Vigilance Section of the office of CPMG, Jharkhand Circle, Ranchi speaks loud regarding abrupt termination of applicant after being appointed by due process of selection.

The applicant submitted an exhaustive application on 15.02.2017 (Annexure-A/6) before the Chief Postmaster General, Jharkhand Circle, Ranchi as well as before the present Superintendent of Post Offices, Giridih Division in which he submitted various points for consideration. The said application of the applicant is still undecided.

The applicant has further contended that this act of challenging the order of transfer of B.P. Srivastava infuriated the Chief Post Master General (hereinafter referred as CPMG) and a speaking order was passed by the CPMG vide order dated 23.02.2017 (Annexure-A/9 to the supplementary application) and instead of passing the reasoned and speaking order with respect to issue of transfer of Mr. B. P. Srivastava in compliance with order passed by this Hon'ble Tribunal; CPMG reviewed the appointment made by the B.P.Srivastava.He categorically at paragraph no. 2.3 held that four engagements of GDSBPM of places (1) Harmodih, (ii) Gando, (iii) Malda & (iv) Charki B.O were made by B.P. Srivastava by completely ignoring the Rules and Procedure. It is pertinent to mention here that Priyesh Kumar (Applicant of this OA) was appointed at Malda B.O. whereas Tinku Kumar (Applicant of OA No. 172/2017) was engaged at Gando B.O.

In the written argument, the applicants have mentioned that out of the 4 candidates whose engagements are made in the places referred to in the above paragraph, two are still working and they have also been promoted in view of the fact that Premlata was appointed by B.P. Srivastava at Charki B.O and Mr. Yadav at Harmodih, whereas the applicants have been disengaged.

According to the applicant, the impugned order of termination has been issued upon directions from the higher authorities in violation of Rule 4(3) of Gramin Dak Sevaks (Conduct & Engagement) Rules, 2011 as such power is vested in the authority superior to the appointing authority. It is submitted that applicant is holding a civil post and is protected under Article 311(2) of the Constitution and as such he cannot be terminated without holding an inquiry and opportunity of being heard in respect of the charges. In this regard, the applicant has referred to the judgment of Hon’ble Supreme Court of India in the case of Union of India Vs. Jaykumar Parida [1996 SCC(L&SA) 320] wherein it is held that

The applicant has annexed some orders passed by this Tribunal in exactly similar matters as at Annexure-A/8 series in support of his case. While reiterating that the impugned order as at Annexure-A/5 is illegal, void ab initio as the same is issued in violation of departmental rules as well as in violation of constitutional provisions, the instant OA has been preferred.

It is submitted that the Screening Committee prepared a select panel of 5 candidates having highest marks in the matriculation examination out of the 49 eligible candidates. The minutes of the meeting was prepared on 25.05.2016 with a remark that Miss. Anshu Kumari will provisionally be selected for engagement to the post of GDSBPM, Malda BO subject to genuineness of certificate/documents submitted by her. Miss Anshu Kumari secured highest marks in the merit. The Committee mentioned in the minutes that selection letter will be issued after verification of the certificate as per instruction contained in Directorate letter dated 20.05.2016. The selection letter could not be issued by Shri R.L. Sinha, the then SPOs, Giridih (One of the Members of the Screening Committee) as he was transferred to the post of Sr. Post Master, Jamshedpur HO and relieved on 21.06.2016.

It is submitted that after transfer of Shri R.L. Sinha, Shri B.P. Srivastava resumed the charge of the post of SPOs, Giridh on 22.06.2016 and he again processed the engagement on 28.06.2016. Shri Priyesh Kumar (applicant of OA No. 146/2017), who was placed at Sl. 12 of the merit list and whose name was not found in the selected panel of engagement has been erroneously been engaged on the post of GDSBPM, Malda BO in a/c with Gawan S.O. rejecting the candidatures of the candidates having higher marks than Shri Priyesh Kumar. The candidatures of the better candidates were rejected on the ground that they have computer certificate issued from private institutions. Shri Priyesh Kumar was engaged as GDSBPM, Malda BO and he assumed the charge on 20.10.2016.

Respondents have averred that as per CO Ranchi Memo dated 10.02.2017 (Annexure-R/3) engagement file of Malda BO was called by the CO, Ranchi ) on the basis of allegation made by one Smt. Anita Kumari and reviewed the case. He found that the appointing authority had overlooked the Screening Committee report dated 25.05.2016 and processed the engagement at his own accord without following the instruction contained in Directorate letter dated 14.01.2015. Accordingly, the engagement of the applicant (Shri Priyesh Kumar) was cancelled vide CO Ranchi letter dated 10.02.2017 and appointment of the applicant was cancelled/terminated from the post of GDSBPM, Malda BO vide SPOs, Giridih letters dated 14.02.2017 and 24.03.2017. The respondents have also enclosed corrigendum dated 24.03.2017 (Annexure-R/11) in their written statement in the case of Tinku Kumar (OA No. 172/2017) also.

The respondents have maintained that the authority higher than the appointing authority has the power to review the engagement of GDS under Rule4 (3) of GDS (Conduct & Engagement) Rules, 2011. The termination orders of applicant was issued by the CO, Ranchi after reviewing the engagement file of applicant and after irregularities were found in his selection. It is contended that the appointing authority reserves the right to terminate the engagement any time if anything adverse is found which was also mentioned in the engagement order of the candidate dated 20.10.2016.The respondents have accordingly prayed for dismissal of the OA.

The controversy involved in the present OAs is essentially as to whether the engagement of the applicants as Gramin Dak Sevak Branch Postmasters could have been cancelled/terminated by the respondents without affording the applicants an effective opportunity of hearing on the ground that the then Superintendent of Post Offices, Giridih Division Shri B.P. Srivastava, had made their engagement by overlooking the recommendations of the Screening Committee.

From the pleadings and documents available on record, it is not in dispute that the applicants were selected/engaged pursuant to the recruitment process undertaken by the Department of Posts and thereafter they joined their respective posts. It is also not in dispute that the applicants themselves were not alleged to have committed any fraud, misrepresentation or manipulation in the recruitment process. The allegation of irregularity was essentially with regard to the manner in which the appointing authority processed and finalised their engagement.

The respondents have relied upon Rule 4(3) of the Department of Posts, Gramin Dak Sevaks (Conduct and Engagement) Rules, 2011. The said provision confers revisional/review jurisdiction upon an authority superior to the Recruiting Authority to call for the records relating to an engagement where the Recruiting Authority appears to have exercised jurisdiction not vested in it, failed to exercise jurisdiction vested in it, or acted illegally or with material irregularity. However, the power under Rule 4(3) is expressly conditioned by the requirement that the person concerned must be afforded an opportunity of being heard before an order adverse to him is passed.

The requirement of opportunity of hearing contained in Rule 4(3) cannot be treated as an empty formality. The statutory scheme itself recognises that an engagement made by the Recruiting Authority cannot be disturbed by the superior authority without first putting the affected GDS on notice and considering his/her explanation.

In the present case, the record, as placed before us, shows that the engagement file of applicant Priyesh Kumar was called for and reviewed by the office of the Chief Postmaster General, Jharkhand Circle. The review resulted in a finding that the Screening Committee had recommended another candidate and that the then Superintendent of Posts had processed the engagement of the applicant allegedly by overlooking the Screening Committee report.

However, before the engagement of the applicant was cancelled, no notice containing the substance of the proposed adverse action appears to have been served upon the applicant and no effective opportunity was afforded to him to explain why his engagement should not be cancelled. The representation dated 15.02.2017 submitted by the applicant after issuance of the order of termination cannot substitute the statutory opportunity of hearing contemplated by Rule 4(3), particularly when the adverse decision had already been taken.

The same legal position applies to applicant Tinku Kumar. His engagement was also subsequently cancelled on the premise that the appointment made by the then Superintendent of Posts was irregular. The material placed before us does not demonstrate that, before taking the adverse decision, the applicant was afforded a meaningful opportunity to meet the allegations concerning the manner of his engagement.

It is true that Rule 8 of the Rules, 2011 permits termination of the engagement of a GDS who has not rendered more than three years of continuous service, subject to the conditions prescribed therein. The proviso to Rule 8(2) permits termination forthwith upon payment of the amount prescribed in lieu of notice. However, the existence of such power does not automatically dispense with the specific procedural safeguard contained in Rule 4(3) where the superior authority is exercising its power to review the engagement on the ground that the Recruiting Authority acted illegally or with material irregularity.

The distinction between a simple termination in accordance with Rule 8 and an adverse order founded upon an alleged illegality or irregularity in the original engagement is material. Where the very foundation for the termination is that the original engagement was irregular and that the Recruiting Authority had acted contrary to the prescribed procedure, the affected person is entitled to know the material relied upon against him and to place his explanation before the competent authority.

The principle is also consistent with the law laid down by the Hon'ble Supreme Court of India in Union of India & Ors. v. Jayakumar Parida, (1996) 1 SCC 441, that where adverse material constitutes the foundation of an order of termination, an opportunity to meet such material may be required before an adverse decision is taken. The said principle has also been considered in matters arising under the GDS Rules. It is settled law that if any material adverse to the respondent formed a foundation for termination, principles of natural justice may necessarily require that prior opportunity of notice be given and after considering his reply appropriate order may be passed giving reasons in support thereof. We are, therefore, unable to accept the contention of the respondents that merely because the applicants had rendered less than three years of service, their engagement could be terminated in the facts of the present case without complying with the requirement of Rule 4(3). Rule 8 cannot be invoked in a manner which renders the specific statutory safeguard contained in Rule 4(3) nugatory.

The respondents have further contended that the Screening Committee had recommended a different candidate for the post of GDSBPM, Malda B.O. and that the applicant Priyesh Kumar stood much lower in the merit position. According to the respondents, the then Superintendent of Posts had rejected the candidature of candidates securing higher marks and had subsequently engaged the applicant.

We do not, at this stage, express any final opinion as to whether the original engagement of either applicant was substantively valid or invalid. Such a determination requires examination of the complete recruitment record, the Screening Committee proceedings, the applicable departmental instructions and the reasons recorded by the Recruiting Authority while making the engagement. The Tribunal exercising judicial review cannot substitute its own assessment for that of the competent statutory authority when the relevant material has not been considered after hearing the affected persons.

There is another significant development which requires consideration. The applicants have placed on record the memorandum of charge issued against Shri B.P. Srivastava and his reply thereto, followed by the decision of the competent authority dated 01.12.2021 whereby the disciplinary proceeding against him was dropped.

The fact that the disciplinary proceeding against Shri B.P. Srivastava was subsequently dropped does not, by itself, lead to the automatic conclusion that the engagements of the applicants were necessarily valid. The validity of an engagement and the disciplinary liability of the officer who made the engagement are distinct questions. An officer may escape disciplinary liability for several reasons without the engagement necessarily acquiring an indefeasible legal character.

At the same time, the subsequent closure of the disciplinary proceeding cannot be ignored altogether. The allegations concerning the conduct of Shri B.P. Srivastava form an important part of the factual foundation upon which the applicants' engagements were reviewed. Once the competent departmental authority ultimately dropped the disciplinary proceeding, the effect of that subsequent development upon the earlier finding of irregularity deserves consideration by the competent authority.

In other words, the order dated 01.12.2021 dropping the disciplinary proceeding does not automatically validate the applicants' appointments, but equally it cannot be treated as irrelevant while reconsidering whether the alleged irregularity in their engagements actually existed and, if so, whether the same was attributable to the applicants or was entirely a matter between the Department and the then Recruiting Authority.

We also take note of the submission that out of the four GDSBPM engagements which were stated to have been reviewed, two other persons continued in service and were allegedly granted further promotional benefits. The respondents shall examine this aspect also while reconsidering the matter. If similarly situated persons were treated differently, the competent authority shall record reasons for such differential treatment. We, however, make it clear that an alleged parity with another employee cannot, by itself, confer a right contrary to the statutory rules.

The impugned orders are liable to be interfered with, on the narrower and sufficient ground that the procedure prescribed under Rule 4(3), including opportunity of hearing, was not complied with before the applicants' engagements were adversely reviewed and cancelled.

The impugned orders dated 14.02.2017 and 24.03.2017 in the case of applicant Priyesh Kumar and the impugned order dated 28.02.2017 in the case of applicant Tinku Kumar are, therefore, not sustainable in their present form. The subsequent communication/corrigendum dated 24.03.2017, insofar as it merely changes the provision of the Rules under which the termination was purportedly made, cannot cure the fundamental procedural defect. At the same time, merely quashing the impugned orders does not mean that this Tribunal records a finding that the original engagements of the applicants were unquestionably valid. The competent authority continues to possess the jurisdiction available to it under the Rules, subject to following the procedure prescribed by law and taking into consideration all relevant material.

The impugned order/memo dated 14.02.2017 and the consequential corrigendum dated 24.03.2017 issued in respect of applicant Priyesh Kumar in OA No. 146/2017 are hereby quashed and set aside.

The impugned order/memo dated 28.02.2017 issued in respect of applicant Tinku Kumar in OA No. 172/2017 and the consequential corrigendum dated 24.03.2017 are also quashed and set aside.

The respondents shall reconsider the engagement of both the applicants afresh. The respondents, will be at liberty to proceed against the applicants, if so required, in accordance with the provisions of the Department of Posts, Gramin Dak Sevaks (Conduct and Engagement) Rules, 2011, particularly Rule 4(3), after furnishing to the applicants the material forming the basis of the proposed adverse action and granting them reasonable opportunity to submit their respective representations.

While undertaking such reconsideration, the competent authority shall consider the entire relevant record, including the original Screening Committee proceedings, the records relating to the engagement of the applicants, the departmental instructions relied upon by the respondents, the explanations/representations submitted by the applicants, and the subsequent order dated 01.12.2021 whereby the disciplinary proceeding against Shri B.P. Srivastava was dropped.

The competent authority shall pass a reasoned and speaking order after considering the representations of the applicants. Such exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order.

Subject to the outcome of such fresh consideration, the applicants shall be entitled to restoration of their engagement from the date of their respective disengagement. However, the question of back wages, arrears and other consequential monetary benefits shall get governed by the fresh decision of the competent authority and shall be determined in accordance with law.

It is made clear that this order shall not preclude the respondents from taking an appropriate decision in accordance with law after following the prescribed procedure, nor shall this order be construed as a declaration that the original engagements of the applicants were substantively valid in all respects.

In view of the long passage of time since the applicants were disengaged, the competent authority shall accord due priority to the matter and shall not unnecessarily prolong the proceedings.

Both the OAs stand disposed of in the above terms. All pending MAs, if any, in both the OAs also stand disposed of accordingly.