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Judgment
HON'BLE Mr.JUSTICE SUNIL THOMAS, JUDICIAL MEMBER-
The applicant was appointed as an Extra Delivery Agent with effect from 30.3.1979 by Annexure A1 order. Thereafter, he was appointed as GDS Postman by Annexure A2 dated 24.3.2005 under the seniority quota. The applicant submitted an RTI application to ascertain the vacancy against which the applicant was appointed along with others. By Annexure A5 reply he was informed that he was appointed against the vacancy year of 2003. However, the date of occurrence of vacancy was not furnished. The vacancy was existing from 2000 in Vadakkara Division, it is claimed by the applicant. He was appointed against the vacancy of 2003. The appointment to the post till 2005 was delayed due to the latches on the part of the postal authorities. Relying on several decisions, applicant contended that delay in finalizing the process cannot cause prejudice to the employees. He claimed that, he is liable to be brought under the campus of old pension scheme and not under the new pension scheme on the basis that he was appointed after 1.1.2004. He also claimed that his service from 30.3.1979 till appointment as GDS shall also be reckoned for the purpose of pension and pensionary benefits. He relied on various decisions to contend that in the case of vacancy that arose prior to 2003, the employees are liable to be governed by the old pension scheme.
Lamenting that his prayer for bringing him under the campus of old pension scheme was not considered, the applicant has approached this Tribunal. The basic reliefs sought by the applicant in the OA are as follows:
“i)to declare that the applicant is entitled to get promoted to the cadre of Postman retrospectively with effect from the date of his turn and entitlement against a vacancy of the year 2003 and to get full service benefits from the date of his retrospective notional promotion and also to get retiral benefits and pension determined on that basis reckoning his qualifying service for pension from the date of his entitlement for promotion;
ii) to declare t hat hte entire period spent by the applicant as Gramin Dak Sevak Mail Deliverer with effect from 30.03.1979 shall be counted in toto for the purpose of pensionary benefits and to reckon the same for determining the qualifying service for pension under the CCS (Pension) rules, 1972;
iii) to issue appropriate direction or order directing the respondents to grant retrospective promotion to the cadre of Postman with effect from the date of occurrence vacancy in the year 2003 and to grant him full service benefits admissible to the applicant consequent on his notional promotion from the date of his entitlement to thee cadre of Postman against the vacancy of the year 2003 including due annual increments, arrears of pay, seniority etc. and to grant her pension under Pension under CCS (Pension) Rules, 1972 and to disburse the arrears of pay and allowance and pension within a time frame that may be fixed by this Hon’ble Tribunal;
iv) to issue appropriate direction or order directing the respondents to reckon the entire period spent by the applicant as Gramin Dak Sevak Mail Deliverer with effect from 30.3.1979 as qualifying service for pension and pensionary benefits under the CCS (Pension) Rules, 1972.”
Respondents filed a detailed reply statement contending that the applicant was appointed as GDS Mail Deliverer-II at Chemperi Sub Post Office under Kannur Division on 30.12.1978. One Postman vacancy was approved by the screening committee for the year 2003. The committee was convened for selecting the candidate. Annexure R1(a) is the communication regarding it. The departmental promotion committee considered 10 senior GDSs who have completed 15 years of service and were having educational qualification of VIIIth pass. The committee selected the applicant as Postman under the seniority quota. Since the applicant was appointed as a Postman on a date consequent to the introduction of new pension scheme in the respondent department with effect from 1.1.2004 his case was ordered to be governed under the provisions of new pension scheme. Annexure R1(b) is the minutes of the departmental promotion committee which met on 9.3.2005 for selecting Postman candidates against 25% seniority quota.
The administrative approval for filling up the post of Postman for the year 2003 was communicated by letter dated 3.12.2004. In Annexure R1(b), the posts which were to be filled for the year 2003 and allocated to various circles based on the recommendations of the screening committee were disclosed. On receipt of Annexure R1(b), respondent No. 2 granted approval and apportioned the vacancies. The communication dated 7.1.2005 was produced as Annexure R1(c). The approval was communicated to Kannur Division by the Postmaster General by communication dated 25.2.2005. The claim of the applicant that he was appointed against the vacancy of 2003 and hence, entitled for the benefit of old pension scheme was not sustainable. Department cannot promote a person before the vacancy arose. The vacancy of a particular year is calculated based on the calendar year. So, vacancy for the year 2003 was calculated considering the vacancies which arose on account of retirement, death or resignation of employees from January, 2003 to December, 2003. Hence, the vacancy position till the year 2003 could be ascertained only by 2004. At that time, the approval of the screening committee was mandatory.
The claim of the applicant for reckoning the past service is contrary to the dictum laid down by the Supreme Court in Y. Najithamol v. Soumya S.D. [(2016) 4 KHC 280 (SC)]. The Supreme Court had held therein that the post of GDS, though a civil post was not a post borne and therefore appointment of GDS to the post of Postman could not be taken as a promotion and it was a different recruitment. The copy of the judgment in OA No. 588 of 2014 from which the above issue arose was produced as Annexure R1(e). The judgment of the High Court in OP (CAT) No. 58 of 2017 challenging the order in OA No. 588 of 2014 was produced as Annexure R1(d).
After the reply statement was filed, the applicant produced Annexures A14, A15 and A16 documents. Annexure A14 is the OM dated 17.2.2020 of the Government of India, Annexure A15 is the photo copy of the letter dated 7.4.1989 and Annexure A16 is the photo copy of the office memorandum dated 26.8.2016 of the Ministry of Personnel, Public Grievances & Pensions, New Delhi.
In reply to it, an additional reply statement was filed by the respondents’ traversing various claims. It was contended that in Annexure A14 dated 17.2.2020 it was clearly mentioned that all cases where results of recruitment were notified before 1.1.2004 against vacancies occurring on or before 31.12.2003, the candidates declared successful for recruitment should be eligible for coverage under the CCS (Pension) Rules. In this case the administrative approval for filling up the post of Postman for the year 2003 was communicated by letter dated 3.12.2004 and as soon as approval was received from the Postmaster General the DPC was convened.
It was contended that the argument of the applicant that if the Department has conducted the selection as and when vacancy arose is absolutely baseless. The vacancy position for the year 2003 could be ascertained only in 2004 and the approval of screening committee was mandatory for filling up a direct recruitment post in the Department of Post. After completion of administrative formalities DPC was convened on 9.3.2005 and applicant was selected to the post of Postman. The applicant was sanctioned a sum of Rs. 2,52,363/- being the lump sum retirement gratuity evidenced by Annexure R2. The amount was paid to the applicant on 13.3.2019. Accordingly, they sought for rejection of the OA.
Heard both sides and examined the records.
The basic contention of the applicant is set up on two premises. Firstly it was contended that though he was appointed in the year 2005, he was appointed against the vacancy of 2003. The delay occurred due to the latches on the part of the respondents and not due to any default on the side of the applicant. Hence, the delay on the side of the respondents should not recoil on the applicant. Thus, it was contended that for the purpose of pension and pensionary benefits, he should be deemed as having been appointed as against the vacancy that occurred in 2003. The next limb of his contention was that till his appointment as Postman he was working as GDS from 30.3.1979 till 24.3.2005. That period was liable to be held as Government service and should be reckoned for the purpose of his pension and pensionary benefits.
It is an admitted fact that the applicant was working as a GDS on 30.3.1979 till 24.3.2005 when he was promoted by Annexure A2 appointment order as Postman. It was contended by the learned counsel that since he was under the Postal Department the entire period should also be treated for the purpose of his pension and pensionary benefits. To supplement it he relied on the decision of the Principal Bench in OA No. 749 of 2015 dated 17.11.2016 and that of Superintendent of Post Offices v. P.K. Rajamma [(1977) 3 SCC 678].
This contention of the learned counsel for the applicant should fail for the simple reason that in Y. Najithamol’s case (supra) Supreme Court took the view that though the GDS were holders of a civil post, they are outside the regular civil service and therefore, the appointment of a GDS to the post of Postman could not be taken as promotion and in fact it is direct recruitment. In the light of the above decision the contention of the learned counsel for the applicant should fail.
Advancing the first limb of his argument, the learned counsel for the applicant contended that though the applicant was posted by Annexure A2 appointment order dated 24.3.2005, and was posted by Annexure A3 order thereafter, in fact he was appointed against a vacancy that occurred in 2003. This is evident from Annexure A5 the reply obtained by him under the Right to Information Act. It was specifically stated that the applicant was appointed against vacancy that arose in 2003. It was further contended that though it states that the actual date of arising of vacancy was not available, if he is able to establish that he was appointed against the vacancy of 2003 and that the appointment was delayed not due to the default of him, he is entitled to succeed.
To substantiate the above contention, the learned counsel for the applicant relied on the various decisions of the Administrative Tribunal as upheld in the High Court. On the other hand, this was sought to be rejected by the respondents relying on Annexure R1(a) dated 3.12.2004 which is a communication issued by the Department of Posts to all PMGs calling upon them to fill up the vacancies. The posts proposed for filling up of the vacancies of 2003 was approved by Annexure R1(c) dated 7.1.2005. By Annexure R1(b) minutes of the DPC which was held on 9.3.2005 the name of the applicant was proposed. Accordingly, it was contended that the vacancies for the period 2003 can only be evaluated in 2004 since various vacancies that arise due to the contingencies like voluntary retirement, death, removal, etc. during the period from January, 2003 to December, 2003 can be worked out only in 2004. Hence, the applicant cannot be considered as being appointed against a vacancy that arose in 2003, it was contended.
Annexure A7 is the common order of this Tribunal in OA No. 239 of 1998 and OA No. 449 of 1998 dated 26.8.1998. That was a case wherein there was delay in filling up of the post. The applicants therein claimed that they should be deemed as having been appointed with effect from the date of arising of the vacancy. This Tribunal held that the delay in filling up of the vacancy was directly attributable to the default on the side of the respondents and it was directed that remedial steps shall be taken to fill up the posts to recoup the delay that has occurred. Annexure A8 is the order in OA No. 620 of 2003 dated 7.7.2006. In that also there was delay in processing the application. It was held that the delay on the part of administration should not recoil on the employees. It was directed that the applicants shall be deemed to have been appointed with effect from 30.1.2003 when the vacancy arose. This was challenged by the respondents in WP(C) No. 6555 of 2007 which was dismissed.
Annexure A8 order was followed in OA No. 102 of 2010 by Annexure A9 order. That was challenged in OP (CAT) No. 988 of 2011 and by Annexure A11 judgment it was dismissed. It was held that the employees therein are entitled for notional status with effect from 1.1.1998, the date of occurrence of vacancies.
The applicant contended that all the decisions which are of general nature and which laid down law should be treated as judgments in rem and hence its benefit should be extended to the applicant. To substantiate it learned counsel for the applicant relied on the order in OA No. 849 of 2011, a copy of which was produced as Annexure A12. It was held therein that when a direction has been given by this Tribunal and the same had attained finality and if the decision happens to be a judgment in rem, it has to be religiously applied in all alike cases.
The learned counsel for the applicant further relying on Annexure A14 OM dated 17.2.2020 by which the benefit of the old pension scheme was extended to persons whose selection for appointment was finalized before 1.1.2004 but who joined the Government service on or after 1.1.2004. It was directed that in all cases where the results for recruitment was declared before 1.1.2004 against vacancies occurring on or before 31.12.2003 candidates declared as successful for recruitment shall be eligible for coverage under the CCS (Pension) Rules, 1972. By the nature of the above OM it is not applicable to the facts of this case.
One of the basic premise in which the claim of the applicant is set up is that appointment to the post of Postman from GDS is a promotion. The Supreme Court in Y. Najithamol’s case (supra) had held that the post of GDS though a civil post is not a post borne in the regular cadre of Postal Department and hence the appointment from the post of GDS to the post of Postman was not a promotion and it was a direct recruitment. In the light of the above decision, Annexures A8, A9, A10, A11 and A12 orders are no longer good law.
An identical case came up before this Tribunal in OA No. 577 of 2016. In that OA, heard along with connected matters, they claimed notional promotion as Postman from the date of occurrence of vacancies against which they were given appointment as Postman. It was contended that administrative delay in conducting the selection should not recoil on the employees. This was declined by the Tribunal which led to the filing of OP (CAT) No. 317 of 2016 and connected cases. The Division Bench of the Hon’ble High Court by Annexure R1(g) judgment rejected the OP (CAT) with the following observation:
“9.Now, we will deal with the common contention as to whether the petitioners could contend that they are entitled to get reckoned the service in the respective post of Postman/MTS with effect from the date of occurrence of vacancies against which they were so appointed on direct recruitment. The question is whether a candidate eligible to get appointment by way of direct recruitment against a post could claim that he got a vested right to get appointed with effect from the date of occurrence of vacancy against which he was appointed on his selection because of his eligibility to be considered for direct recruitment on the date of occurrence of vacancy and that the selection got delayed due to administrative reasons. We have already found that all the petitioners were appointed as Postman/MTS based on LDC Examination. In otherwords, it is evident that it is not purely on their seniority that they were given such appointment and that all of them were directly recruited to their present posts. While considering the tenability of the said contention, the following decisions assumes relevance. In the decision in T.N. Administrative Service Officers Assn. Union of India (2000) 5 SCC 728, the Apex Court considered such a question in a different context. The Apex Court held that even if vacancies exist, it is open to the authority concerned to decide how many appointments should be made. Simply because a candidate is eligible for selection, it did not confer on him any vested right for getting appointment. Virtually the said position was restated by the Apex Court in Vinodan T. v. University of Calicut (2002) 4 SCC 726. It is a well settled position in service jurisprudence that even if there is vacancy, the State is not bound to fill up vacancy and there is no corresponding right vested in an eligible employee to demand that such posts be filled up. This is because the decision to fill up a vacancy or not vests with an employer and for good reasons he could decide not to fill up such posts. In the contextual situation, a decision of the Apex Court in Suraj Parkash Gupta and others v. State of Jammu and Kashmir (2000) 7 SCC 561 also assumes relevance. In the said case, a contention was raised by the direct recruits, respondents therein that they are entitled to get the date of appointment of direct recruitment antedated from the date of occurrence of vacancy in the direct recruitment quota though on that date they were not actually directly recruited. In fact, such contention was raised to canvass the position that promotees who were occupying the quota for direct recruitment should be pushed down. The said contention was repelled by the Apex Court in paragraph 80. The Apex Court held thus:
“80.This contention, in our view, cannot be accepted. The reason as to why this argument is wrong is that in Service Jurisprudence, a direct recruit can claim seniority only from the date of his regular appointment. He cannot claim seniority from a date when he was not born in the service. This principle is well settled. In N.K.Chauhan v. State of Gujarat, [1977] 1 SCC 308 (at p.321) Krishna Iyer, J. stated:
“later direct recruit cannot claim deemed dates of appointment for seniority with effect from the time when direct recruitment vacancy arose. Seniority will depend upon length of service.” Again, in A. Janardhana v. Union of India [1983] 2 SCR 936, it was held that a later direct recruit cannot claim seniority from a date before his birth in the service or when he was in school or college. Similarly it was pointed out in A.N.Pathak v. Secretary to the Government, [1987] Suppl. SCC 763 (at p.767) that slots cannot be kept reserved for the direct recruits for retrospective appointments”.”
This answers all the contention of the applicant. Hence, the claim of the applicant cannot be granted.
The Original Application fails and is accordingly, dismissed. No order as to costs.