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Judgment
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
1.Quash the speaking order vide Ent. No. BDR/B-1/2-19/TVS/2023 dated: 3.5.2023 vide Annexure A18 issued by the O/o Superintendent of Post Offices, Bidar Division, Bidar 585 401, Respondent No. 4.
2.Quash the letter No. NKR/STA-1/326/Court cases/2023 dated 7.8.2023 Annexure A20 issued by the O/o Post Master General, North Karnataka Region, Dharwad 580 001, Respondent No. 3.
3.Consequently direct the respondents to appoint the applicant as Postman for the vacancy of 2011, in the examination held on 16.12.2012, with all consequential benefits.
4.Grant any other relief as deemed fit into the facts and circumstances of the case, in the interest of justice and equity.
Briefly stated the facts are that the applicant was appointed as GDS BPM at Ujani BO and appeared for Limited Departmental Competitive Examination (LDCE) for Postman vacancies of 2007 but not selected. Three vacancies were notified for GDS quota for 2007 LDCE. One Shri Subhash J. Doddi also appeared for LDCE 2007. Not being selected, he filed a representation for revaluation of 2007 answer sheets in the year 2011 and on revaluation of his answer sheets he was selected. The applicant cleared the LDCE in 2012 for the vacancies of 2011 however, he was not selected. The applicant submitted representations but of no avail. The applicant filed OA No. 1140/2019 before this Tribunal which was disposed of, on 02.02.2023 with a direction to the applicant to file a comprehensive representation. The applicant submitted a comprehensive representation on 17.02.2023. Pursuant to which, the Respondent No. 4 issued a speaking order rejecting the representation, against which the applicant filed an appeal which also came to be rejected. Hence, this OA.
Learned counsel Shri P. Kamalesan representing the applicant submitted that the applicant appeared for LDCE held on 05.08.2007 for the post of Postman cadre and secured 92.5 marks and was placed at Sl. No. 63. Two persons namely, Shri Pratap Singh, who secured 115 marks (Sl. No. 49) and Shri Sanjeev, who secured 115.5 marks (Sl. No. 56) were appointed. On the revaluation of the answer scripts of Shri Subhash J. Doddi, he was awarded 117 marks as against original 106 marks. He was issued with the appointment order dated 07.03.2012. Pursuant to the directions issued by this Tribunal in OA No. 853/2013 preferred by Shri Subhash J. Doddi, his appointment was modified as with effect from 08.12.2007. As such, the vacancy of 2011 remains unfilled and the applicant being the meritorious candidate in the examination held on 16.12.2012 for the vacancies of 2011 and eligible for appointment, he ought to have been considered. Consequent to the order passed by this Tribunal in OA No. 1140/2019 (DD: 02.02.2023), quashing the order of the respondents dated 25.01.2019, the applicant submitted a fresh representation to consider him for the vacant post earmarked for the year 2011 in Bidar Division. However, the same has been rejected by the Respondent No. 4 and further representation has been rejected by the Respondent No. 3. Hence, seeks for the interference of this Tribunal.
Learned counsel Shri K. Gajendra Vasu representing the respondents submitted that the vacancies for GDS to Postman quota for the year 2007 was as under:
| Community | UR | OBC | Total |
| No. of vacancies | 1 | 2 | 3 |
The result of the examination held on 05.08.2007 for the year 2007 was announced and the following candidates were declared successful:
| Sl. No. | Name of GDS selected (S/Shri) | Caste | Total Marks Obtained | Remarks |
| 1 | Sanjeev, BPM Kinni BO | SC | 115.5 | SC Selected against OC |
| 2 | Pratap Singh, GDS MD/MC Halsi BO | OBC | 115 | OBC |
The applicant did not come in the merit but declared as surplus candidate in the said examination securing 105.5 marks. Further one unfilled vacancy of OBC was filled by surplus candidate named Shri S.B. Naik from other division. In the meantime, Shri Subhash J. Doddi, who appeared in the said examination, who was initially declared as not qualified, applied for revaluation of answer scripts. On revaluation of answer scripts, he obtained 117 marks. Accordingly, he was selected as Postman in Bidar Division. The selection of Shri Subhash J. Doddi was adjusted in merit quota (OC) in the existing vacancy of 2011. Since there was only one vacancy in the Unreserved category and it was already adjusted after selection of Shri Subhash J. Doddi, no vacancy remained for GDS to Postman for the year 2011. As such, the vacancies for Postman examination 2011 was announced vide letter dated 02.11.2012 issued by the Respondent No. 3 in Part B (Competitive Exam to GDS): Nil. Though there was no vacancy in Bidar Division for GDS to Postman quota for the year 2011, the applicant was permitted to appear for the examination held on 16.12.2012 to consider his candidature under surplus quota. The applicant was qualified as surplus candidate, however, since no unfilled vacancies were available in the neighbouring divisions, he was not selected even in surplus quota, but the vacancy of Shri Subhash J. Doddi was adjusted before issue of notification for Postman examination for 2011, hence, the applicant’s claim to consider him for the vacancy year 2011 does not arise. Thus, justifying the impugned orders, seeks for dismissal of the OA.
We have carefully considered the submissions of the learned counsel for the parties and perused the material on record.
This is the second round of litigation. In the first round, in OA No. 1140/2019 preferred by the applicant challenging the order of the Respondent No. 4 dated 08.05.2018 and the letter dated 25.01.2019 issued by the Respondent No. 3 whereby the request of the applicant to consider his case against the vacant post announced for the year 2011 was rejected. After hearing the learned counsel for the parties and perusing the order passed in OA No. 853/2013 (Subhash J. Doddi vs. Union of India represented by Secretary, Department of Posts and Ors.), this Tribunal held that the arguments of the learned counsel for the respondents that Respondent No. 5 therein (Shri Subhash J. Doddi) was appointed for the vacancy year 2011, and there being no vacancy for the year 2011, the candidature of the applicant cannot be considered, though qualified, is baseless. Indisputedly, on the revaluation of the answer scripts held for the examination of the year 2007, Shri Subhash J. Doddi stood first. Without disturbing the appointments made for the year 2007, he was notionally appointed on 08.12.2007 as Postman. Thus, the said appointment should relate only to the year 2007. In unequivocal words it was declared in the said OA No. 1140/2019 that adjusting the appointment of Shri Subhash J. Doddi to the year 2011 is untenable; For the vacancy year 2011, the candidature of the candidates listed in Annexure RA4 therein, list of surplus qualified candidates (OBC Category) for the vacancies of 2011 examination held on 16.12.2012 from GDS to Postman cadre requires to be considered. Having held so, considering the applicant’s name figuring at Sl. No. 6 in the said list, the same if considered division-wise, the claim of the applicant cannot be rejected outrightly unless such examination is made by the respondents. Accordingly, the matter was remanded to the authorities for fresh consideration permitting the applicant to file a fresh representation. In the speaking order now passed by the Respondent No. 4, in para 13 it is held thus:
“13.Whereas, in view of the above it is found that Sri Subhash Doddi had passed the examination for the vacancy year 2007 after finalizing CAT case, and as per RO directions he was appointed as Postman and adjusted in the vacancy year 2011. Vacancies for the Postman Exam-2011 announced as Part-A (LDCE for MTS): UR-1 & Part-B (Competitive Exam to GDS): Nil. The applicant has qualified in the said exam and same was informed to R.O. Hence it is concluded that even though he was in the merit list, but the vacancies notified before the examination was zero and that was considered as final. In view of the above, I Sri K. Sreenivasa Rao, SPO’s, Bidar Dn hereby ordered that though the applicant was qualified in Postman Examination-2011 against NIL vacancies in Bidar Division, and the vacancies announced as NIL well before the examination, the representation submitted by the applicant afresh has been reconsidered and re-examined and found that the candidate can not be accommodated against Nil vacancies of Postman Examination-2011 which were notified well before the examination. Hence Hon’ble CAT Bengaluru Bench order in OA No. 170/01140/2019 filed by Sri Tanaji is complied with.”
This finding of the Respondent No. 4 has been confirmed by Respondent No. 3 without application of mind. It is not in dispute that the order passed by this Tribunal in OA No. 1140/2019 (DD: 02.02.2023) has reached finality. That being so, the respondents were bound to follow the directions issued by this Tribunal in letter and spirit. When this Tribunal in OA No. 1140/2019 has categorically held that the appointment of Shri Subhash J. Doddi should relate only to the year 2007 and adjusting his appointment to the year 2011 is untenable, respondents rejecting the claim of the applicant stating that Shri Subhash J. Doddi was appointed as Postman and adjusted in the vacancy year 2011, is ex-facie contemptuous in nature and cannot be countenanced.
OA No. 853/2013 was filed by Shri Subhash J. Doddi before this Tribunal seeking for the following reliefs:
“a)Pass an appropriate order, quashing the communication in No. B-2/28-1/Post Man/2012-13, dated at Bidar-1 the 17.08.2012 as per Annexure-A20 and communication No. B-2/28-1/Post Man/2012-13, dated at Bidar-1 the 30.10.2012 as per Annexure-A22.
b)Issue an appropriate direction, directing respondents to treat the applicant as pass in the departmental examination held on 05.08.2007 to the post of Post Man i.e., 01.11.2007 itself.
c)Consequently, direct the respondents to promote applicant to the post of Post Man with retrospective effect, with all consequential benefits.
d)Pass any other appropriate orders as this Hon’ble Tribunal deems fit to grant, in the circumstances of the case, to meet the ends of justice.”
Considering the same, this Tribunal has passed the order as under:
“The Hon’ble Apex Court of India in Civil Appeal No. 907 of 2006 and Civil Appeal No. 897 of 2006 heard together have held that even though normally without statutory basis no revaluation could be held but in the light of the general findings of the Hon’ble Apex Court a revaluation was held and that the applicant had obtained 117 marks whereas the 1st rank holder Shri Sanjeev got 115.5 and 2nd rank holder Shri Pratapsingh got only 115 marks. Therefore, without any doubt as the respondents themselves have conducted the revaluation and found the applicant to be more meritorious he is to be placed above Shri Sanjeev. 2. Now the respondents would say that when he was offered a post in 2012 an undertaking was taken from him to the effect that he will not claim any seniority. No authority has the power to ask an illegal act to be done. If the applicant is rightly entitled to seniority it should be extended to him and even if by wrongly understanding provisions and succumbing to pressure he has done so then that will be illegal and therefore that will be quashed. Therefore applicant will be entitled to be considered as appointed alongwith Sanjeev just above him and he will be entitled to consequential benefits except the financial benefit of pay and allowances till 2012 when he was appointed. The notional benefits of pay and allowance will be extended from the earliest point of time. This shall be done within next 2 months. 3. OA is allowed to this extent. No order as to costs.”
As could be seen from the said order, nowhere this Tribunal has directed the respondents to adjust the said applicant, Shri Subhash J. Doddi for the year 2011. Indeed, the respondents ought to have created a supernumerary post to accommodate Shri Subhash J. Doddi for the year 2007. Hence, the speaking order now passed by the Respondent No. 4, confirmed by Respondent No. 3 is arbitrary and perverse and is liable to be set aside. Accordingly, we pass the following:
:ORDER:
The impugned orders dated 03.05.2023 at Annexure-A18 issued by Respondent No. 4 and 07.08.2023 at Annexure-A20 issued by Respondent No. 3 are set aside.
The respondents are directed to appoint the applicant as Postman for the vacancy year 2011 in the examination held on 16.12.2012 with all consequential benefits, by creating a supernumerary post.
Compliance shall be made in an expedite manner, in any event not later than 12 weeks from the date of receipt of certified copy of this order.
OA stands allowed to the extent indicated above. No order as to costs.