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Judgment
ORDER
By Hon’ble Ms. Manju Pandey, Member (A):-
Learned counsel for the parties are present and heard.
The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, praying for the following reliefs:–
“(a)To issue direction or order to the opposite party no.2 that he will not appoint any other person on the post of G.D.S., B.P.M. Ranipur Rajmo.
(b)To quash the order dated 25.02.2013 as Annexure no.1 to this application.
(c)To issue any order, direction which court deem fit and proper.
(d)To allow the applicant with cost
(e)To issue a suitable order or direction to continue the applicant on the post of deployment and pay his salary
(f)To issue any other suitable order or direction to the respondent and to interfere in peaceful working of the applicant on the deployment.”
The brief facts of the case, as stated in the Original Application, are that the applicant was appointed to the post of BPM, Ranipur Rajmo, Azamgarh, till a compassionate appointment was made. However, no person came forward for compassionate appointment. The applicant continued to work till 02.03.2004 at Bindra Bazar. In the meantime, the post of GDS, Ranipur Rajmo, Azamgarh, fell vacant due to the retirement of Shri M. D. Hirawan Singh. The applicant was accordingly deployed by the competent authority as GDS, Ranipur Rajmo, Azamgarh. Thereafter, due to the retirement of Shri Ramdhani Mishra, the post of BPM, Ranipur Rajmo, Azamgarh, fell vacant on 06.01.2006, and the charge of BPM, Ranipur Rajmo, was given to the Central Administrative Tribunalapplicant. On 27.05.2009, the opposite party deployed the applicant as GDS BPM, Ranipur Rajmo, Azamgarh. The applicant was originally appointed as GDS MD, Bindra Bazar, District Azamgarh, where Shri Indresh Mishra was subsequently appointed by the opposite party. The post of GDS MD, Ranipur, Azamgarh, was also filled up by appointment. The applicant has been working on the post of BPM, Ranipur Rajmo, since 2006 and has been receiving salary for the said post. On 25.02.2013, opposite party no. 2 reported the post of BPM, Ranipur Rajmo, Azamgarh, as vacant to the Employment Exchange for recruitment. The applicant submitted an application stating that he had been working against the said vacant post for a long period and that his deployment had been made against a clear vacancy. He further stated that the post against which he had originally been appointed was no longer vacant, as another person had already been appointed against the said post. Therefore, the applicant requested that he be repatriated to his earlier post, or that his services be regularized/continued against the vacant post of BPM, Ranipur Rajmo, Azamgarh. However, opposite party no. 2, without passing any appropriate order on the applicant's representation, proceeded to advertise the post of GDS BPM, Ranipur Rajmo, Azamgarh. A copy of the said advertisement is annexed with the Original Application as Annexure No. 1. The applicant contends that, in view of the aforesaid facts, his deployment against the clear vacancy was valid and that the action of opposite party no. 2 in treating the post as vacant and proceeding to fill it through fresh recruitment is illegal and arbitrary. Opposite party no. 2 took the stand that a GDS MD cannot hold the post of BPM without undergoing the prescribed selection process. Aggrieved by the said action of the opposite party, the applicant has approached this Hon'ble Tribunal by way of the present Original Application.
Per contra, a counter affidavit has been filed, wherein it has been stated that the applicant was initially engaged against the post of Gramin Dak Sevak Mail Deliverer, Bindra Bazar, as the regular incumbent against the said post had died in harness. Accordingly, an intermittent arrangement was made by the then Sub-Divisional Inspector of Post Offices vide letter dated 23.02.2003, wherein the terms and conditions Central Administrative Tribunal of such arrangement were clearly stipulated. It has further been stated that the applicant was deployed against the post of Gramin Dak Sevak Mail Deliverer/Mail Carrier, Ranipur Rajmo, with effect from the afternoon of 08.03.2004, after the retirement of the regular incumbent, vide letter dated 04.03.2004 issued by the Sub-Divisional Inspector of Post Offices, Lalganj. Upon the retirement of Shri Ramdhani Mishra, GDS Branch Postmaster, Ranipur Rajmo, on 06.01.2006, the applicant was allowed to work against the post of GDS BPM, Ranipur Rajmo, in addition to his own duties. Thereafter, an arrangement was made for Shri Dharmendra Upadhyay against the post of GDS MD/MC, Ranipur Rajmo, vide letter dated 14.09.2009 issued by the then Sub-Divisional Inspector of Post Offices, Lalganj. It has been stated that, vide letter dated 27.05.2009 issued by the then Senior Superintendent of Post Offices, Azamgarh, the applicant was deployed as GDS BPM, Ranipur Rajmo, for an intermittent period. It was specifically stipulated therein that the arrangement could be terminated at any time without assigning any reason and that no claim for regularization against the said post would be maintainable. With regard to the applicant's original post of GDS Mail Deliverer, Bindra Bazar, it has been stated that Shri Indresh Kumar Mishra, GDS Packer, Mohammadpur, was subsequently ordered to work against the said post and has continued thereon. It has further been stated that, under the instructions issued by the Director General of Posts vide O.M. dated 17.07.2006, the power to deploy or transfer a GDS employee was vested only in the Chief Postmaster General. Consequently, the deployments/transfers of the applicant were found to be contrary to the prevailing departmental policy. Pursuant thereto, the Postmaster General, Gorakhpur Region, Gorakhpur, directed that such irregularly deployed GDS employees be returned to their original posts. Accordingly, the applicant was returned to his original post and the post of GDS BPM, Ranipur Rajmo, fell vacant. Consequently, Advertisement dated 25.02.2013 was issued for filling up the said post in accordance with the prescribed recruitment procedure. It has been stated that the applicant's arrangement against the post of GDS BPM, Ranipur Rajmo, was Central Administrative Tribunalpurely intermittent and had not been made pursuant to any regular selection process. Since the deployment had also been made by an authority not competent to make such deployment, no right to regularization or continuance against the said post was created in favour of the applicant.
The applicant has filed a rejoinder, wherein the averments made in the Original Application have been reiterated and the assertions contained in the counter affidavit have been denied. It has been stated that, as per the terms of the appointment letter, the provisional appointment was liable to be terminated upon the heir of the deceased employee being available for appointment, and not merely on the ground that the appointment was provisional. Since no heir of the deceased employee came forward for compassionate appointment, the applicant's appointment was stated to have acquired a regular character. With regard to the deployment of the applicant as GDS BPM, Ranipur Rajmo, it has been stated that although the deployment made by the Senior Superintendent of Post Offices, Azamgarh, was permissible as an intermittent arrangement, such authority could not continue the deployment beyond 180 days. It has been pointed out that the applicant remained deployed against the said post from 2004 to 2013. It has further been stated that GDS Mail Deliverer, Bindra Bazar, was the applicant's initial post, but the same was not a provisional post as alleged in the counter affidavit. As regards the departmental instructions, it has been stated that no guidelines had been issued by the Postmaster General specifying which deployments were to be treated as irregular or valid. Reliance has also been placed upon the GDS Rules, according to which a deployment could be made for a period of 180 days, and the continuation of the incumbent thereafter was required to be ensured in accordance with the applicable rules.
Reliance has also placed on the order and direction dated 24.08.2018 of this Tribunal in OA890/2010 (Sudhakar Maurya and others v UoI and others)
We have heard the learned counsel for both the parties and have also Central Administrative Tribunalgone through their pleadings.
It is the case of the Applicant that he has been appointed to work as GDS BPM of Ranipur Rajmo BO and, therefore, the Respondents should not have advertised the said post for filling up the vacancy. The Applicant desires that he should be allowed to continue on the post where he was deployed.
It is seen that initially itself, when the Applicant was appointed as GDS, MD (Mail Deliverer), Bindra Bazar PO on 23.02.2003, his appointment was provisional, which was done by the Sub Divisional Inspector. It was mentioned in the order that the appointment was provisional to look after the work of GDS Deliverer, Bindra Bazar, and it was also clearly mentioned that ‘the undersigned reserves the right to terminate the provisional appointment anytime before the period mentioned in para 2 above without notice and without assigning any reason’. So, subsequently, when a regular incumbent was posted there, he was shifted to work as GDS, MD at the Ranipur Rajmo PO on 04.03.2004, and he started working there from 08.03.2004 onwards. Subsequently, when the post of GDS, BPM of Ranipur Rajmo fell vacant, he was asked to look after the work of the BPM also, along with his own duties. This order also clearly said that ‘the arrangement may be terminated at any time without assigning any reason thereof and the GDS will not claim for regularisation on the post’. Subsequently, a GDS MD was posted on 14.09.2009 at Ranipur Rajmo PO, and the Applicant kept working as GDS BPM from 27.05.2009 for intermittent periods.
Since the deployment of the Applicant as GDS BPM was not done following the due procedure as is required for filling up the post of GDS BPM, the Respondents have now advertised the said post and have asked for names from the Employment Exchange. It is the Applicant’s contention that the post should not have been advertised as he was already working on the said post and he should be allowed to continue on the said post.
The engagement of GDS is governed by the Gramin Dak Sevaks Central Administrative Tribunal(Conduct and Engagement) Rules, which have to be followed whenever such engagements are made, which starts with the issue of notification for the particular post, calling for applications, preparing a merit list based on the marks and other eligibility criteria, etc. Merit is the only criterion for selection, and the appointment as GDS is subject to the fulfilment of other conditions. No regular engagement is done without a proper notification of the vacancy and giving equal opportunity to all candidates applying for the same. Regular appointments cannot be made based on the services rendered on a provisional or officiating basis. In the case of the applicant, it is seen that his engagement has always been provisional and has been made without advertising the various posts he has held, which goes to show that the normal procedure has not been followed and the appointments made were provisional. The applicant has never applied/competed for regular appointment and, therefore, cannot claim continued service on a regular basis.
12 In Writ-A No. 27776 of 2009 (Basant Kumar Srivastava v. UOI & Ors.), the Hon’ble High Court of Allahabad, while adjudicating the matter, noted that:
We, however, find force in this submission of the learned counsel for the respondents that there are departmental rules for the recruitment of a G.D.S. against a permanent vacancy but the department had neither made any advertisement nor any test or examination was ever conducted for appointment of the petitioner as permanent G.D.S. The Sub-Divisional Inspector is not the appointing authority of G.D.S. and therefore, we are also unable to accept the arguments of the learned counsel for the petitioner that he was issued appointment letter by the department. It is apparent from the records that the petitioner never remained in continuous service of the department even as a substitute G.D.S. and although he performed the work of G.D.S. till 27.5.2009, pursuant the interim order dated 28.07.2003 passed by the CAT, however this period of his engagement cannot be considered as his continuous service in the department because his working under the interim order of the CAT was not in his own legal right but subject to Central Administrative Tribunal the decision of the Court. Hence, no legal right can accrue to the petitioner to be appointed or absorbed as G.D.S. in the Post Office on basis of his working under the permanent interim order.
In Secretary of State of Karnataka and others V. Umadevi and (3) others (2006) 4 SC (supra), the Apex Court held:
"Persons who get employed, without the following of a regular procedure or even through the back-door or on daily wages, have been approaching the Courts seeking directions to make them permanent in their posts and to prevent regular recruitment to the posts concerned. The courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called "litigious employment", has risen like a phoenix seriously impairing the constitutional scheme. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. Such an arguments fails when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution. Merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right."
We are fully convinced that the petitioner was not appointed by a competent authority under the G.D.S. recruitment rules. No procedure for recruitment was initiated for his appointment as permanent G.D.S. He being simply engaged as a substitute of a regular G.D.S. for short periods on his own risk and responsibilities in stop gap arrangement has no right to claim absorption in the department on permanent post of G.D.S. on which a permanent employee is already working.
Central Administrative TribunalAccordingly, the CAT while passing impugned order dismissing his O.A. has committed no error or illegality to the extent warranting any interference by this Court.
So far as payment of wages to the petitioner, during his engagement of the G.D.S. under the interim order of the CAT is concerned, the petitioner was paid salaries for the services, which he had rendered to the department pursuant to the order of the Tribunal. The money so paid to him was for his work done by him in the department as substitute. Even a substitute, a casual worker or even a daily wage is entitled to emoluments for the work he has rendered. The question whether he is entitled to absorption in service as permanent employee is a different aspect of matter. Hence the salary paid to the petitioner in lieu of services rendered by him to the department is not liable to be recovered from him.
The counsel for the Applicant has relied on the decision given in OA No. 330/00890 of 2010 by this Bench of the Tribunal. However, the order in that case is about the irregular transfers orders of the GDSs which were issued by an authority not competent to do so, whereas the present case is about allowing a provisionally appointed GDS to continue against the post where he is working and not advertising the same for regular appointment.
In view of the fact that the Applicant was never given a regular appointment as GDS BPM of Ranipur Rajmo PO and his appointment was provisional, no case is made out for directing the Respondents not to advertise the said post and directing them to let the Applicant continue in the said post. The Applicant, if he so desires and is eligible, can apply against the post advertised and compete for the same on merit.
Accordingly, the instant Original Application is dismissed.
All pending MAs, if any, are also dismissed. No order as to costs.