Judgment:
DR. K.B.S. RAJAN, JUDICIAL MEMBER
1. This Review Application has been filed seeking review of the order dated 05-02-2010 in OA No. 247 of 2009. (Though the applicant in this OA is only one, i.e. Shri K.M. Balan, the respondents have included two more, whose names have been referred to in the order as they are seniors to the applicant in the OA). The said order vide para 9 and 10 mandated the respondents as under:-
"9. Arguments were heard and documents perused. In a number of cases this Tribunal has consistently held that for filling up of posts of Group `D' under the 25% quota Screening Committee's approval is not essential. This legal position has been affirmed in a very recent decision by the Kerala High Court when it considered as many as 35 Writ Petitions in a Single judgment. As such, all the 12 vacancies must be available for being filled up. Even assuming that only 5 vacancies are available of whom one could go to casual labourer, the same should go to the applicant as the other two individuals (Radha and Kamala) must have by now crossed 60 years.
10. In view of the above, OA is allowed. Respondents are directed to consider the case of the applicant against the vacant Group `D' post under the 25% quota. This is subject to the condition that the applicant is the senior most hand. The two seniors to the applicant are above 60 years of age. The Department may also consider to re-allot the 7 vacancies stated to have been abolished on account of non filling, in which event the number of vacancies would become 12. This drill be performed within three months from the date of communication of a copy of this order. No costs."
2. The above order rested its reasoning on the fact that 25% of the vacancies in Group D post were to be filled up from out of Casual labourers as per the Rules and when the vacancies were 5, at least one vacancy should go to the Casual Labour Category.
3. The Union of India has filed the Review Application on the ground that the above reasoning is contrary to the decision in an earlier case of OA No. 277 of 2004 (M. Kunju Krishna Pillai vs Postmaster and others) decided on 07-10-2005 in which the said 25% had been calculated on yearwise basis and thus, unless in any of the years the vacancies were four and above, vacancy @ 25% for casual labourer could not be made available. The said order reads as under:-
"12. In view of the above, we hold that the omission of the respondents in filling up the substantive vacancies in Group-D which arose in Kollam Division in accordance with Annexure A-4 Recruitment Rules is not sustainable and direct the respondents to take immediate steps for computing the Group-D vacancies available (year-wise) against 25% quota for Casual Labourers in accordance with the Recruitment rules 2002 and to appoint the applicants to these posts from the date of available vacancies with all consequential benefits within a period of three months from the date of receipt of a copy of this order."
4. Vide para 5 of the Review Application, the Review Applicants have stated as under:-
"5. The finding of the Hon'ble Tribunal in RA1 is that year wise calculation of vacancies as has been done in this case is not correct and has directed to compile all the vacancies till 2005 and to give appointment to the applicant and other eligible casual labourers, without noticing the fact that during 2003-05 the number of vacancies were less than 4. This it is respectfully submitted is in a situation where the method of year wise calculation of vacancies adopted by the department has been upheld in O.A.No.277/04 and therefore the subsequent order (RA1) is against the order in O.A.No.277/04 A true copy of the order dated 7.10.05 in O.A.277/04 is produced herewith as Annexure RA2. It is submitted that this aspect could not be brought to the notice of Hon'ble Tribunal, which according to the respondents have led to Annexure RA1, which will now lead to a position wherein the department will have to review the vacancies that have already been abolishe3d and the Group D officials have been designated as Multi Skilled Employees and the Group D cadre now no longer exists and the Group D Recruitment Rules have also become redundant."
5. Giving the yearwise vacancy position from 2002 to 2003, which were respectively, 5 for 2002, 3 for 2004, 2 each for 2003, 2005, 2006, 2007 and 2009 and 4 for 2008, the Review Applicants contended that as the percentage has to be worked out yearwise, calculation that there were 12 vacancies vide the order under review is not correct. In their Review Application, the respondents have mainly raised the following ground:-
"This Hon'ble Tribunal in RA1, has held that the year wise calculation of vacancies as has been done in this case is not correct and has directed to compile all the vacancies till 2005, which has been wrongly calculated as 12 and to give appointment to the applicant and other eligible casual labourers. This finding is without taking note of the fact that vacancies for the year 2002 had already been considered and appointment to an eligible candidate, was already given. Therefore, the applicant is not eligible for the relief that this Hon'ble Tribunal has granted by Annexure RA1 and therefore the order is liable to be reviewed and the OA dismissed with cost to the respondents."
6. In other words, the Review Applicants relied upon order in OA No. 277/2004 wherein year-wise vacancies were directed to be taken into account to work out for each year allotment of vacancies to the casual labourers, to justify the Review Application.
7. Applicant to the OA (who is one of the respondents in the R.A) contested the Review Application and produced the details of vacancies made available to them under the R.T.I.Act to demonstrate that the vacancies from 01-09-1993 under the Vadakara Division works out to 12 from the recruitment years 2002 to 2005 and contended that vide Annexure A-14 of the OA,vacancies of multiple yers is taken together to determine number of vacancies in each quota. The rotation is maintained in the ratio of 3:1 among GDS and casual labourers.
8. At the time of arguments, Senior Central Government Standing Counsel for the review applicants reiterated the contents of the Review Application, while the counsel for the respondents in the OA referred to the decision of the High Court in O.P. No. 9488 of 2009 (Postmaster and others vs M. Kunjukrishna Pillai) decided on 14-07-2011 filed by the Review Applicants before the High Court challenging the order dated 07-10-2005 in OA No. 277 of 2004 and highlighted the decision as hereunder:-
"The best way to sort out the issue is to direct the department to fill up every fourth vacancy arising in the course of time to be filled up by a candidate from among casual employees. At least for the future we direct the department to ignore yearwise reckoning of vacancies but fill up every fourth vacancy with a casual employee. If this method was adopted the respondent probably would have got employment way back at least in 2002 because in 2002 and 2003, together a total of six vacancies arose out of which one should have necessarily gone to the casual employee."
9. The above decision and the decision under Review of the Tribunal match in colour in that it is not year-wise vacancies but cumulative vacancies that should be considered to allot every fourth vacancy for casual employees.
10. Viewed from this, the respondents are to work out the vacancies upto 2005 and earmark vacancies meant for the casual employees and appoint the eligible and suitable casual employees on the basis of their seniority as Group D posts. Those casual labouers who have crossed sixty should be excluded from the consideration for appointment. The claim of the applicants is that he would be covered against any of the vacancies prior to 2004. This shall be verified and the applicants appointed accordingly. Rather, as in the case of W.P. 9488 of 2009 referred to above, the applicant should be treated as notionally appointed as Group D employee and give him and also his seniors, subject to their eligibility/suitability and also subject to availability of vacancies, as it was such an order that had been passed in the above writ petition.
11. The Review application is dismissed. The above drill shall be completed within a period of three months from the date of communication of this order. As sufficient time has been lapsed since the passing of the original order, the time schedule shall be strictly adhered to and it is the responsibility of the Chief Post Master General, Kerala Circle Trivandrum to ensure compliance of the order of the Tribunal.