Postmaster Grade 1 officials from Kerala in the year 2013-2014 will get seniority from 2011 - CAT Ernakulam judgement
Postmaster Grade 1 officials from Kerala in the year 2013-2014 will get seniority from 2011. CAT Ernakulam judgement issued on 02.02.2017. Please see the details of the case. (OA NUMBER - 426/2015)
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION NO.180/426/2015
Dated this Thursday the 2nd day of February , 2017.
CORAM
Hon'ble Mr. Justice N.K. Balakrishnan, Judicial Member
Hon'ble Mrs.P.Gopinath, Administrative Member
1. M.A.Suresh Kumar, S/o Late Appu, aged 43 years,
Postmaster Grade I, Tanur MBR P.O.,
Malappuram, Pin 676302, residing at
Moothery House, Erangalam P.O.,
Malappuram, Kerala Pin 679587.
2. R.Rudran, S/o M. Ramakrishnan, aged 44 years,
Postmaster Grade I, Katakada P.O. Pin 695572,
Permanently residing at Pioneer Villa,
Puthenveedu Elavaramkuzhy Ukakkupura P.O.,
Kollam, Kerala, Pin 691312, now residing at
Aramom Building,
Katakada P.O. Pin 695572.
3. Prasad T.K. S/o Swaminathan, aged 38 years, Postmaster
Grade I, Petta, Trivandrum, Pin 695024,
residing at Thamonamkunnathu, MP2/ 264B, KRA 53A
Thachottukavu, Malayankeezh P.O.,
Trivandrum, Pin 695571.
4. Prakash P. Bhaskaran S/o P.Bhaskaran, aged 41 years,
Postmaster Grade I, Ranny, Pazhavangady, Pin 689673,
residing at Panakal House, Mekozhoor P.O.,
Pathanamthitta, Pin 689645.
5. Preetha K.K. W/o Girishkumar, aged 41 years,
Post Master Grade I, Jubilee Mission, P.O.
Thrissur, Pin 680005,
residing at Haritham, Pipeline Road,
Thottappy, Mannuthy, P.O.
Thrissur, Pin 680651.
6. Faizal K.T. S/o Alavi K.T. Aged 31 years, Postmaster Grade I
Calicut University Pin 673 635, residing at Parayil House,
Melangady P.O. Kondotty, Pin 673 638.
7. Jayarajan A.C. S/o Kumaran K.C. Aged 36 years,
Postmaster Grade I, Manjeswar MDG., Pin 671 323,
residing at Gandhi Nagar,
Karudikka P.O.
Moliyar Pin 671 542.
8. Baiju Ambikesan, S/o Ambikesan P.R. Aged 43 years,
Postmaster Grade I, Thrissur City Pin 680020, residing at
Punnapully House, Kanjany P.O. Pin 680020.
9. Ramachandran P., S/o Raghavan Nair, aged 39 years,
Postmaster Gr.I., Angadipuram Pin 679321, residing at
Pakideeri House,
Anamangadu P.O.
Malappuram 679357. .... Applicants
By Advocate Mr. M.R.Hariraj,
Versus
1. Union of India, repesented by the Secretary,
Department of Posts, Ministry of Communication,
New Delhi.
2. Director General of Posts, Dak Bhavan,
New Delhhi.
3. Chief Post Master General, Kerala Circle,
Thiruvananthapuram 695 033. .... Respondents
(By Mr.S. Ramesh ACGSC)
This application having been finally heard on 18.01.2017, the Tribunal on 02/02/2017
delivered the following:
O R D E R (ORAL)
Per: Mrs. P.Gopinath, Administrative Member:
The applicants are aggrieved by the refusal of the respondents to grant them
notional dates of promotion to the cadre of Postmaster Grade I and also the refusal to
consider them for promotion to the cadre of Postmaster Grade II.
2. The cadre of Postmasters comprising of four grades, (Postmaster Grade I, II,
III and Senior Postmaster) was created on 9 th September, 2010 and the recruitment
rules for the said cadres was promulgated. The applicants were all working as Postal
Assistants at that point of time. They all had more than five years of service as on
1.1.2011. Applicants 1, 2 and 4 to 9 had been granted MACP I, and was already
drawing pay in the pay band 5200-20200 plus grade pay of 2800 with effect from
2008. The third applicant was granted MACP I and given the grade pay of Rs. 2800
with effect from 2012 onwards. Being fully qualified for the post of Postmaster Grade
I, notified by Annexure A3, the applicants applied to appear for the examination. Hall
tickets were issued to all the applicants. It is contested that the respondent on the
ground of pending litigation before the apex court involving employees from Kerala
directed the examination contemplated under Annexure A3 to be adjourned sine die.
3. While the examination was not conducted in Kerala, the examinations were
conducted in other circles. Based on results thereof, promotions were made to the
cadre of Postmaster Grade I in all other circles except Kerala. The examination in
Kerala was conducted in 2013. The applicants appeared for the test and were
successful. Based on Annexure A7 results, the applicants were appointed as
Postmaster Grade I, and they took charge on various dates in April-May, 2014. In
other circles, successful candidates were appointed to the cadre of Postmaster Grade I
in July- August, 2011 itself, while for no fault of the applicants, in Kerala the
appointment was delayed to May 2014. When the question of consideration for
promotion to Senior Post Master will arise, the applicants argue that they would be put
to a disadvantage in the All India Seniority List as their date of entry into the initial
cadre was delayed due to no fault of applicants. There will be none from Kerala for
two years for being considered for promotion as Senior Postmaster due to the
adjournment of the examination which ought to have been conducted in June, 2011.
4. Arguing the case of the third applicant it is argued that the third applicant is
junior only to the sixth applicant based on his rank in the competitive examination for
appointment to the cadre of Postmasters. Thus, he is senior to all other applicants. In
such circumstances, the rule provides that b
qualifying/eligibility service are being considered for promotion, their seniors would
also be considered provided they are not short of the requisite qualifying service by
more than half of such qualifying/eligibility service or two years, whichever is less.
The third applicant was granted MACP I, in the grade of Rs. 5200-20200 + Grade Pay
2800 with effect from 2011. He has already completed four years in the grade pay.
But the respondents argue that applicant is not drawing the grade pay in the grade of
Postmaster Grade I. He is drawing Grade Pay of
Rs.2800/- only in the feeder grade of Postal Assistant and not in the grade of
Postmaster Grade I as specified in the Recruitment Rule. The posts of Postmaster
Grade II are being manned by personnel who are not qualified to be holding those
posts as per Annexure A1 rules. In the other circumstances, the first applicant
submitted a detailed representation. Similar representations were made by the other
applicants also. A total of 34 posts of Postmaster Grade III and 36 posts of Postmaster
Grade II are sanctioned in Kerala Circle. Of 36 posts of Postmaster Grade II and 35
posts Postmaster Grade III identified in the Kerala Circle, only 8 posts in Grade II and
Postmaster Grade III have been filled up.
5. The applicants contest the refusal to grant the applicants notional promotions to
the postmaster Grade I, with effect from 2011 considering the fact that the
examination was adjourned only in Kerala, and in other circles it was conducted in a
timely manner. Applicants also contest the refusal to consider them for promotion as
Postmaster Grade II based on their experience in the grade of Rs.5200-20200 + Grade
Pay 2800 despite availability of vacancies.
The applicants sought the following reliefs:
(i) To direct the respondents to grant notional promotion for the applicants to the
cadre of Postmaster Grade I, with effect from June 2011, or the dates on which such
promotions were granted to personnel in other circles who appears for the
examinations conducted in 2011.;
(ii) To direct the respondents to consider the applicants for promotion to the cadre of
Postmaster Grade II with effect from the dates on which the applicants become qualified
to be so promoted reckoning their regular service in the grade of Rs.5200-20200 + Grade
Pay 2800 as qualifying for promotion,
6. The respondent in the reply statement submits that all applicants joined the
Postmaster Grade on various dates in April and May 2014.
7. The vacancies in Postmaster Grade II posts was requested to be filled up by
promotion from amongst Postmaster Grade I with 6 years of regular service in the
grade including regular service in LSG, if any. Thus, even if it is assumed, though not
admitted by the respondents, that the applicants are granted notional promotion to the
cadre of Postmaster Grade - I, they still are not eligible for promotion to Postmaster
Grade II without fulfilling the mandatory service of 6 years of regular service in
Postmaster in Postmaster Grade I.
8. In order to ensure that professionally qualified, trained and meritorious
officials head important Post Offices, it was decided vide Annexure A.1 to introduce a
separate cadre of Postmasters by carving out the posts from the existing General Line
posts. New Recruitment Rules dated 9 Sept 2010, Annexure A.1, were framed and
notified. As per notified Recruitment Rules initial constitution of various Grades of
Postmasters had to be done by inviting options/applications from the existing
incumbents of LSG, HSG II and HSG I Post Offices and PS Group B. In subsequent
years all the vacancies in Postmaster Grade I were to be filled up through an LDCE
from amongst the Postal Assistants with 5 years regular service in the grade and all the
vacancies in Postmaster Grade II post had to be filled up by promotion from amongst
Postmaster Grade I with 6 years regular service in the grade including regular service
in LSG, if any. Out of the total 299 General Line LSG posts, 125 posts were
identified for Postmaster Grade I and willingness was called for from amongst the
LSG officials for completing the initial constitution process.
9. Respondent argues that a number of cases with respect to determination of the
seniority of the officials for the purpose of promotion to LSG were pending before
various courts in 2010. As such, there were only 39 LSG officials in position in the
circle in 2010. Out of the 27 willing LSG officials, only 14 officials who were found
fit were promoted to PM Grade I vide letter No. ST/3-1/PMC.2010/Dig dated
01.04.2011. Hence, the process of initial constitution could not be completed.
10. Third Respondent was advised by the first Respondent on 19.05.2011, that
there was no other option other than to await the decision of the Apex Court before the
vacancies in LSG were filled up by the Circle and as such, action for filling up the
unfilled posts of Postmaster Grade I under initial constitution clause as well as
Departmental Examination would have to be taken only after the decision of the Apex
Court. First respondent also directed vide Annexure R.2 that Postmaster Grade I
examination scheduled to be held on 12.06.2011 need not be held in Kerala Circle.
After settlement of various court cases, DPC was convened on 17.04.2013 for
promotion of eligible Postal Assistants to the cadre of LSG in 2013 for the vacancies
from 2009 and 150 officials were promoted to LSG cadre vide letter No.St/5-2/2012
dated 02.05.2013. Willingness was called for from these officials for Postmaster
Grade I and out of the 24 willing officials, the eligible 23 officials were promoted to
Postmaster Grade I vide letter dated 28.06.2013.
11. Respondent contends that before completing the initial constitution of
Postmaster Grade I, the number of vacancies in the grade to be filled up through
LDCE could not be assessed. Neither could the interests of the senior officials in the
PA cadre who were awaiting promotion to LSG cadre to be settled by court case be
ignored. Thus in the best interest of the employees, the decision was taken to
postpone the LDCE in Kerala Circle. Soon after the initial constitution process was
completed, the examination was duly notified without any delay vide Annexure A-6.
All the applicants in the OA appeared in the examination held on 30.06.2013 and were
declared successful. Respondent brings to notice judgements of the Apex Court
wherein it had been held as follows:
In Nirmal Chandra Sinha v. Union of India, C.A.No.8058 of 2001 decided
on 31.03.2008 that a promotion takes effect from the date of being granted
and not from the date of occurrence of vacancy or creation of the post.
Respondent also quotes Tribunal's order in O.A. No. 145/2010 which held that
it is settled law that the promotion takes effect from the date of being
granted and not from the date of occurrence of vacancy or creation of
posts. b
12. We hold the view that the above orders are not applicable when the seniority of
a select group similarly placed is depressed on account of date of examination being
deferred and which had an impact on determining All Indian Seniority.
13. Respondent argues that such a situation did not exist in any other circle and
the examination was conducted in all circles except Kerala. Respondent quotes Apex
Court in State of Mysore v. G.N. Purohit, 1967 SLR (SC) 753, that it is said on
behalf of the respondents that as their chances of promotion have been affected their
conditions of service have been changed to their disadvantage. We see no force in
this argument because chances of promotion are not conditions of service.
14. Annexure A.1 recruitment rules stipulate that the posts of Postmaster Grade II
are to be filled up by promotion from the officials in Postmaster Grade I, in the pay
band 1 of Rs.5200-20200 + Grade Pay Rs2800/- with six years of regular service in
the Grade including regular service, if any, in Lower Selection Grade and applicants
did not possess this prescribed qualification. The applicants become eligible for
consideration only in April/May 2020 if May 2014 was taken as date of recruitment.
The applicants are attempting to substitute 'Grade Pay' with 'Grade' Postmaster Grade
I in Pay Band Rs.5200-20200 + Grade Pay Rs.2800 cited in the recruitment rules. Six
years of regular service in the Grade mentioned in the latter part of the rule cited in
para 3 above categorically means six years of regular service in Postmaster Grade I
and not six years of service in the Grade Pay of Rs.2800/- as the rule has to be read in
its entirety and not in parts.
15. It was clarified by the Directorate vide letter No.4-17/2008-SPB II dated
10.02.2011 (Para 2.4) that the posts will be deemed to have been designated as
Postmaster Grade I, Postmaster Grade II and Postmaster Grade III with effect from the
dates those are filled up and if for certain number of posts, the general line officials do
not apply, those SOs/HOs would continue to be manned by General line officials till
the posts are filled by promotion from the lower grade of postmasters as per Annexure
A 2. creation of cadre notification. In accordance with Annexure A2, 36 posts in
General line HSG II and 35 posts in General line HSG I were identified for
Postmaster Grade II and Grade III respectively. Out of the 36 posts in PM Grade II
only 8 posts could be filled up from amongst the willing officials in the HSG II cadre
under the initial constitution process. In accordance with Annexure A1, a DPC was
convened on 05.06.2015 to consider 18 officials in PM Grade I who were eligible for
promotion to PM Grade II since they had completed six years of service in PM Grade I
cadre including regular service in the LSG cadre. 17 eligible officials were promoted
to Postmaster Grade II vide Memo No. ST/3-1/PM Grade II/2013 dated 10.07.2015
and in the case of one official, the proceedings of the DPC is kept in a sealed cover in
view of the currency of the penalty. The applicants in this O.A.will be duly considered
for promotion when their turn comes, in accordance with the recruitment rules
governing the field. The respondents argues that eligibility of being considered for
promotion to the Grade of Postmaster Grade II is six years of regular service in
Postmaster Grade I and not in the grade pay of Rs.2800/- as construed by the
applicants.
16. We have heard the learned counsel appearing on both sides and perused the
records.
17. This case was argued with O.A. No.351/2016. The circumstances in this case
are different as the delay was not on account of applicants but arose due to a case
awaiting decision of the Apex Court for promotion of Postal Assistants to LSG cadre,
the LSG cadre being the initiation feeder cadre for PM Grade I. The applicants
however bring to our notice that as per Annexure A11 (1) and A11(2) NIC Supreme
Court Case Status Report produced, which indicate that SLP (Civil)18876 of 2011
filed by UOI and Anr vs. M.P. Sudhakaran Nair and 18880 of 2011 filed by UOI and
Ors. v. N.J.Tom Thomas & Ors was disposed of on 8.7.2011 one month after all India
scheduled date of examination. The disposal of the cases by the Apex Court gave a
quietus to the LSG seniority matter and the promotion to LSG and their subsequent
fitness for initiation to Post Master Grade I could have been finalised immediately
thereafter and exam for unfilled vacancies of Post Master Grade I followed, and initial
constitution clause been completed. Or a second option would have been to hold the
examination on schedule date in Kerala stating that the result will be finalised based
on number of unfilled posts arising out of the final disposal of SLP's followed by
initiation by option to PM Grade I, and resultant vacancies arising for filling up by
examination. This would have established applicants rank in the examination, and
date of entry based on their date of joining of immediate junior in the all India rank list
after the initiation clause was operated. However in the absence of such a decision at
the appropriate time, it is left to the Tribunal to find a solution to this matter which was
not appropriately handled. Whereas we agree that had the exam results been declared,
before obtaining the willingness of eligible LSG officials, it would have been injustice
to them. But we also note that by delaying entry by examination for unfilled vacancies
and determining their seniority along with others similarly placed by an All India
Examination was also injustice to the applicants. For no fault attributable to them,
their seniority was depressed. The circumstances could have been moulded to prevent
such a depression.
18. Whereas we note that respondents cannot be solely held responsible for the
litigation which caused the delay, they could have moulded their response to the
creation of the cadre by examination. The examination could have been held as
scheduled and the result kept as undeclared subject to the finalisation of the court case
and finalization of the initiation process. Applicants prayer is for pre-dating the
appointments made pursuant to LDCE in a manner as if the right thing was done at the
right time. The claim is for appointment to be made to the Postmaster Grade I cadre
from the date on which such appointment were made to those similarly placed in other
circles based on a common examination. There was no judicial stay to hold
examination in Kerala. However the determination of examination based vacancies,
subsequent to following the initiation based filling up of posts, was an unknown
factor due to pending litigation. Though this was a bottleneck, it was not an
insurmountable one. The examination result of Kerala Circle could have been
withheld, pending finalisation of LSG seniority and initiation to Postmaster Grade I
entry cadre in the Circle which would define the number of vacancies to be filled by
examination.
19. We also note that applicants have been recruited according to a notified
recruitment rule and in their claim for seniority they have prayed for being treated at
par with applicants to the cadre of Postmaster Grade I, Examination 2011 at par with
others similarly placed with effect from June 2011. Hence we would not recommend a
different treatment as far as first relief is concerned. We therefore, allow the first
prayer of applicants to grant notional promotion to applicants with effect from dates on
which such promotions were granted to the last candidate for the examination
conducted in 2011. Applicants will be treated as placed at the bottom of the all India
seniority list of 2011 exam, as their interpolation in the list of actual entrants to PM Gr.
I 2011 Exam would cause injustice, to those who actually appeared in the 2011 exam
and whose seniority stands determined.
20. Applicants argue that there are a lot of vacancies of Postmaster Grade II,
available in the Kerala Circle. As per Col 12 of the rules, 'Postmaster Grade I, in the
pay band 1 of Rs.5200-20200 + Grade pay Rs.2800/- with six years of regular service
in the Grade including regular service in Lower Selection Grade' is entitled to be
considered for promotion. Based on the rule quoted applicants argue that they have
more than six years of regular service as on date in the scale of Rs.5200-20200 +
Grade pay 2800, on the ground that they are granted MACP I in 2008. [ Emphasis
provided for understanding Recruitment Rule]. Applicants are taking advantage of absence
of the designation Postmaster Grade I being mentioned in the latter part of the
recruitment rule quoted above. Whereas in the former part of the rule it is clearly stated that
Grade Pay Rs.2800/- should be drawn in the grade of Postmaster Grade I. Hence the hair
splitting interpretation to read Grade Pay without the designation attached is not
acceptable. Hence as regards the second prayer the applicants will also be treated at
par with all the similarly placed persons of 2011 Examination as per provisions of
Annexure A1`Recruitment Rules, and the manner in which qualifying service of
similarly placed persons of 2011 Examination for promotion to PM Grade II was
determined. Accordingly the second prayer is dismissed.
21. O.A. is disposed of accordingly allowing the first prayer only. No order as to
costs.
(Mrs. P. Gopinath) (N.K. Balakrishnan)
Administrative Member Judicial Member
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