Judgment:
HON'BLE Mr.K.GEORGE JOSEPH, ADMINISTRATIVE MEMBER
1. Having common facts and issues, these O.As were heard together and are disposed of by this common order.
2. The applicants in these O.As have sought mainly a declaration that they are entitled to notional promotion in the cadre of Postman retrospectively from the date of occurrence of vacancies against which they are selected with all consequential benefits including arrears of salary, increments and other service benefits. Their immediate and important consequential benefit is the fulfillment of the requirement of three years of regular service in the cadre of Postman to write the examination for promotion to the cadre of Postal Assistant/Sorting Assistant (P.A/S.A). For the same purpose the applicants in O.A.949/10 have challenged the cut off date of 1.9.2010 for completing 3 years service.
O.A.849/10
3. The four applicants in this O.A are presently working as Postmen in the Calicut Postal Division under Senior Superintendent of Post Offices, Calicut. They are aggrieved by the cut off date of 1.9.2010 in the notification No.B1/65-11/2010 dated 17.8.2010 for holding the examination for promotion to the cadre of Postal Assistants/Sorting Assistants (P.As/S.As) to be held on 10.10.2010.
4. The applicants were regular Gramin Dak Sevaks who were promoted as Postman based on a examination uniformly held all over Kerala on 22.4.2007 against the vacancies for the year 2005. The result of the examination was announced in all the Divisions in Kerala on 27.7.2007. The applicants were sent for training from 10.9.2007 to 19.9.2007 and their posting orders were issued on 30.9.2007. On completion of the training the applicants joined as Postman. While posting orders in the case of the applicants were issued only in the month of September, 2007 about two months after the declaration of the result, in all other Divisions similarly placed persons were sent for training earlier and posted as Postman in the month of August, 2007 itself. As per the notification dated 17.8.2010 for promotion as P.As/S.As as on the cut off date of 1.9.2010 one should have 3 years of regular service as Postman for being eligible to write the examination. While all other colleagues of the applicants who are selected by the same examination conducted on 22.4.2007 for the vacancies of the year 2005 are now eligible to be considered for promotion as Postal Assistants/Sorting Assistants, the applicants are deprived of the opportunity of being considered for promotion against the vacancies of Postal Assistants/Sorting Assistants in the Calicut Postal Division as they fall short of three years of regular service as Postman by a few days. The total number of vacancies available is 12 against which the candidates who applied are only 5. In case the applicants who are otherwise eligible are not considered along with their counterparts in other Divisions the vacancies would be thrown to the Gramin Dak Sevaks. Thus depriving the applicants of an opportunity for being considered for promotion. After completion of training the applicants were appointed as Postman with effect from 20.9.2007. As per the cut off date of 1.9.2010 the applicants alone stand discriminated in the matter of consideration for promotion to the post of Postal Assistants/Sorting Assistants in terms of the notification uniformly applicable on all Postal Divisions with reference to the vacancies in their respective Divisions.
O.A.848/10
5. The 7 applicants in this O.A, who are Postmen in the Pathanamthitta Postal Division, are aggrieved by the denial of permission to appear in the examination to be held on 10.10.2010 for promotion to the cadre of Postal Assistants/Sorting Assistants. They are also aggrieved by the denial of appointment as Postman from the dates on which they are eligible to be appointed as such.
6. The applicants who commenced service as Gramin Dak Sevaks were all eligible to be considered for appointment as Postman much prior to 2006. The respondents did not conduct recruitment to the post of Postman from the Gramin Dak Sevaks on the ground that clearance from the Screening Committee was necessary for such recruitment. Finally this Tribunal held that such clearance was not necessary which was confirmed by the High Court of Kerala. Thereafter, the departmental test for appointment to the post of Postman from Gramin Dak Sevaks was conducted in 2009 for the vacancies for the years 2006 and 2007. The 1st and 2nd applicant in the OA were selected and appointed as Postman against the vacancies of the year 2006. The other applicants were appointed against the vacancies of 2007. The delay in conducting the departmental examination and the DPC were attributable to the respondents alone. Had the applicants been considered for promotion in accordance with the law and were granted promotion on due dates the applicants would have had actual service of three years enabling them to appear in the examination to be held on 10.10.2010. Fulfilling the eligibility conditions of three years regular service in the lower grade (Postman) as on 1.9.2010, the applicants claim that they are entitled to be notionally extended the benefit of promotion from 2006 and 2007 as the case may be and permitted to appear for exams conducted on 10.10.2010. In Idukki division certain employees were given retrospective promotions from 2003 by an order dated 19.8.2004 issued by the Superintendent of Post Offices, Idukki Division. The Jaipur Bench of this Tribunal in O.A.502/04 held that the applicant therein was entitled to get qualifying service reckoned from the vacancy year than the date of promotion. This view was confirmed by the High Court of Rajasthan and the SLP against the said judgment was dismissed. While the applicants were denied even a chance to take part in the examination their juniors in the GDS category are permitted to be considered for appointment against the unfilled vacancies every year.
O.A.841/10
7. The 4 applicants in this O.A are Postmen from Kottayam Postal Division. They were appointed as Postman in the year 2010 against the vacancies of the year 2006. The respondents did not conduct the examination for filling up the post of Postman every year. In the year 2009 examination for filling up the vacancies of the years 2006, 2007, 2008 and 2009 were conducted. As a result apart from losing appropriate seniority and other benefits the applicants are now denied opportunity to take part in the departmental examination for promotion to the cadre of Postal Assistants to be conducted on 10.10.2010 for which three years qualifying service as Postman as on 1.9.2010 is a must. As their applications for appearing in the examination were rejected they approached this Tribunal contending that they are entitled to be given notional appointment to the cadre of Postman with effect from the date of occurrence of the vacancies against which they were appointed in view of the decisions of the Hon'ble Supreme Court in S.Krishnamurthy Vs. the General Manager, Southern Railway (AIR 1977 SC 1868). The unfilled vacancies of Postal Assistants/Sorting Assistants would be offered to Gramin Dak Sevaks which form the feeder category of Postman to which the applicants belong without any insistence on qualifying period. Therefore, denial of opportunity to the applicants to appear in the departmental examination for promotion to the cadre of Postal Assistants is absurd.
O.A.803/10
8. The seven applicants in this OA are Postmen from Mavelikkara Postal Division who were appointed in the year 2009 against the vacancies for the year 2006-2007. They commenced their service as Gramin Dak Sevaks and on being successful in the departmental examination they were appointed as Postman. The applicants No.1-5 were appointed against the vacancies for the year 2007 and the applicant No.6 was appointed against the vacancy of the year 2006. Apprehending that their applications for appearing in the examination to be held on 10.10.2010 will not be entertained because they have not rendered not less than three years of regular service in the lower grade as on 1.9.2010, they have approached this Tribunal. They pray for a direction to the respondents to treat them as having been notionally appointed to the cadre of Postman with effect from the date of occurrence of the vacancies against which they were appointed. They have also relied upon the judgment of the Supreme Court in S.Krishnamurthy Vs. the General Manager, Southern Railway (AIR 1977 SC 1868). In addition to Bhoop Vs. Matadin Bhardway (1991 [2] SCC 128) and Nirmal Chandra Bhattacharjee Vs. Union of India (1991 Supp. [2] SCC 363).
O.A.801/10
9. The 18 applicants in this OA from Pathanamthitta Postal Division and Kollam Postal Division are Postmen. They were Gramin Dak Sevaks promoted to the cadre of Postman in the departmental examination held in the year 2009. Applicants No.1-7 have been promoted against the vacancies for the year 2006 and Applicants No.8-18 have been promoted against the vacancies for the year 2007. Applicants No.1-8 belong to Pathanamthitta Postal Division and others belong to Kollam Division. Applicants No.1-2 are working as Postman with effect from 11.11.2009 and applicant No.3-7 are working as Postman with effect from 31.10.2009 and applicant No.8 is working as Postman with effect from 21.12.2009 and all others with effect from 28.11.2009. The applicants seek notional promotion from the year of vacancies against which they have been promoted. The applicants have submitted representations to the competent authority. But only the 1st applicant has received a reply dated 10.5.2010 rejecting his representation. The applicants have submitted applications for appearing in the examination to be held on 10.10.2010. Apprehending that their applications would be rejected on the ground of not having three years of regular service on the cut off date of 1.9.2010, they have approached this Tribunal.
10. The applicants submitted that their promotion was delayed solely due to failure on the part of the respondents to hold the departmental examinations in time as per the standing instructions for promotion to the post of Postman. In Bhoop vs. Matadin Bharadwaj, 1991 (2) SCC 128 and Nirmal Chandra Bhattacharjee and Others vs. Union of India and Others, 1991 Supp. (2) SCC 363, the Apex Court has held that the delay or mistake of the department shall not be permitted to recoil on the party. The applicants further relied on the case of S. Krishnamurthy vs. The GM, Southern Railway, AIR 1977 SC 1868 and State of Maharashtra vs. Jaganath Adiyut Karanadiker, 1989 SCC (LandS) 417 to buttress their contentions. While the applicants are denied opportunity to appear for the departmental examination for promotion to the cadre of Postal Assistant/Sorting Assistant, the unfilled vacancies of Postal Assistants/Sorting Assistants will be offered to GDS employees which form the feeder category of Postmen to which cadre the applicants belong. The regular service does not necessarily mean actual physical service. They have been selected against the vacancies for the years 2006 and 2007 for which examinations were held in the year 2009 only. If the examinations were held in time, the applicants should not have suffered undue loss and injury. In the case of promotion to the cadre of Group-D, the respondents have given notional promotion from the date of occurrence of vacancies which were kept unfilled from the year 2002 onwards. The applicants are similarly situated and therefore, entitled to similar treatment. In O.A. No. 849/2010, the applicants submitted that the cut off date of 01.09.2010 prescribed in the notification for examination is without any authority of law. Going by the Recruitment Rules, 3 years service is required to be fulfilled at the time of promotion and not at the time of consideration.
11. The respondents contested the O.A. They submitted that even if the claim for notional promotion put forth by the applicants is accepted, they would not be eligible for appearing for the examination as what is required is 3 years regular service and not notional service. There has not been any deliberate delay on the part of the respondents in appointing the applicants as Postmen. They had conducted separate examinations for each year from 2006 to 2009 after ascertaining the year-wise vacancies. The case of the applicants cannot be compared with that of the Gramin Dak Sevaks (GDS) who were appointed to the cadre of Group-D on the basis of the judicial pronouncements by Hon'ble High Court of Kerala and by this Tribunal to the effect that the appointment of GDS as Group-D is by way of promotion and not by direct recruitment. The applicants cannot claim similar status for their appointment as Postman. Due to administrative procedure, the respondents were not able to conduct the examination in the years 2006 and 2007. With respect to the applicants in O.A.849/10 the respondents submitted that there had been administrative delay in imparting training to the selected candidates. The cut off date is fixed at least one month prior to the examination. This is uniformly followed. The applicants have no legally sustainable ground to change the cut off date. The respondents further contended that in Nirmal Chandra Sinha vs. Union of India and Others, 2009 (1) SCC (LandS) 671, the Hon'ble Supreme Court held that the promotion need not be given retrospectively. All over the country, clearance of the Screening Committee for filling up of the vacancies for the years 2006 and 2007 were received only in the year 2009.
12. We have heard the learned counsel for the parties and perused the records.
13. As per the Recruitment Rules for promotion of Lower Grade Officials (LGOs) to the cadre of Postal Assistant/Sorting Assistant, all departmental LGOs below the grade of PAs/SAs who are permanent and who have rendered no less than three years of regular service in the lower grade as on the date of notification are eligible to appear for the examination. The applicants are falling short of the required 3 years of regular service by a few days to more than 1 or 2 years. Had the examinations for the post of Postman were held in time, they would have got the required number of years of regular service. The unintentional delay in conducting the examinations due to various administrative reasons cannot be attributed to the applicants. It is admitted by the respondents that there was delay in holding the examinations for promotion to the post of Postmen. The applicants are the unintended victims of the delay on the part of the department. In 1991 Supp (2) SCC 363, the Hon'ble S.C held that "the mistake or delay on the part of the department, therefore, should not be permitted to recoil on the appellants."
14. The delay on the part of the Department of Posts has resulted in the loss of eligible service for the applicants and denial of permission to appear for the examination for promotion. In the factual situation of the cases before us, the denial of permission to appear for the examinations, though technically correct, is unjust and unfair. The Apex Court in State of Maharashtra Vs. Jaganath Adiyut Karanadiker reported in 1989 SCC (LandS) 417 held that "it would be unjust, unreasonable and arbitrary to penalise a person for the default of the Government to hold the examination every year." In AIR 1977 SC 1868, the Hon'ble Supreme Court held as under:-
6. The appellant has a future and hopefully looks forward for promotion. It is, in our view, right and reasonable that for purposes of promotion, seniority will be reckoned from 20th December, 1967 but for qualifying period, if there is such a condition for promotion, his notional service from 1st January, 1959 will be considered. Of course, we need hardly say that this order will not affect adversely the seniority of those who have been appointed as traffic inspectors prior to 20th December, 1967. In the situation arising in the case, the respondent will pay the costs of the appellant in this Court. The appeal is allowed on the above lines.
(emphasis supplied)
15. Following the ratio of the above decisions of the Hon'ble Supreme Court the applicants in the present cases can be given the benefit of notional service from the date of occurrence of vacancies for the purpose of qualifying period for writing the examination for promotion.
16. The contention of the respondents that even if notional service is granted to the applicants, it would not amount to the regular service stipulated in the Recruitment Rules is wrong. What is prescribed is regular service, not actual service. As per settled law notional service is to be treated as regular service for counting qualifying period.
17. We do not find any illegality as far as fixing the cut off date for counting qualifying period, one month before the date of the examination. The grievance of the applicants in O.A.849/10 will be redressed, when they are granted notional service from the date of occurrence of the vacancies against which they are appointed.
18. In the light of the above, we declare that the applicants in the instant O.As are entitled to be granted the benefit of notional service from the date of occurrence of vacancies against which they are posted as Postmen for the purpose of counting qualifying period for appearing for the examination for promotion as P.A/S.A held on 10.10.2010. The respondents are directed to publish the result of the examination in respect of the applicants and to promote those who have cleared the examination, as P.A/S.A as per rules, within a period of 60 days from the date of receipt of a copy of this order.
19. The O.As are allowed to the above extent. No order as to costs.