Wednesday, September 28, 2011

OA NO.215/2009 ??????????????????????





Ramesh Handa,
S/o Sheena Handa,
Aged 33 years, working as
GDS BPM, Hanehalli BO,
A/w Barkur SO-576 210. ...Applicant

(By Advocate Shri A.R.Holla)


1. Union of India,
By Secretary,
Department of Post, Dak Bhavan,
New Delhi – 110 001.

2. Chief Post Master General,
Karnataka Circle,
Bangalore – 560 001.

3. Post Master General,
Bangalore – 560 001.

4. Superintendent of Post Offices,
Udupi Division,
Udupi – 576 101. ...Respondents

(By Additional Central Government Standing Counsel Shri N.Y.Guruprakash)



This application arises out of Order No.B1/III/LGO, dated 23rd April, 2009, issued by Respondent No.4 terminating the services of the applicant from the post of Postal Assistant.

2. The case in brief is that the applicant was appointed as GDS BPM on 26.04.2001. From the certificates he belongs to OBC category and his date of birth is 06.04.1975. Vide notification dated 14.02.2007, examination was notified for selection to the post of Postal Assistants from the GDS category. The applicant went through all the formalities after which he was provisionally selected by order dated 15.06.2007 (Annexure A3). Thereafter, he completed the pre-institutional training and was posted as Postal Assistant (Annexure A6). As a consequential requirement, he also tendered his resignation from the post of GDS-BPM on 30.11.2007. Thereafter, he was allotted the permanent pension account number and staff quarter too.

3. In the meantime, Respondent No.4 came across some irregularity in the selection of the applicant and issued a show cause notice dated 27.12.2007 (Annexure A11), as to why his selection should not be cancelled. The applicant approached this Tribunal in OA No.25/2008. During hearing of that case, the applicant requested for permission to make a detailed representation to the respondents. So, the OA was disposed of directing the respondents to consider the detailed representation of the applicant. Accordingly, the applicant was given a chance to represent and finally, an order was passed holding his appointment as Postal Assistant as irregular. This order was communicated to the applicant on 21.4.2009 (Annexure A14) and by order dated 23.04.2009 (Annexure A16), he was posted back as GDS-BPM. So, the applicant prays for quashing the order dated 21.04.2009 issued by Respondent No.4 (Annexure A14) and prays that he should be taken back as Postal Assistant.

4. It is admitted in the reply statement that the unfilled quota of vacancies (for promotion) of 2003, 2004 and 2005 was offered to the GDS of the recruitment divisions vide letter No.SK/R&E)/1-12/GDS/2003 to 06 dated 9.11.2006. for the year 2003 there were 2 vacancies in the open category and one for the OBC category, for the applicant was a candidate who appeared for the examination. Recruitment Rules say that GDS securing marks not below the marks secured by the last direct recruit of OBC selected in the same year is to be selected. The recruitment was for vacancy of 2003 and direct recruitment for vacancies of 2003 was made in 2005. As there was no direct recruitment in Udupi Division in the year 2005, the respondent No.4 looked at the results of nearby Puttur Division into consideration and prescribed 68.2 marks as the minimum percentage of marks to be secured by the GDS candidates under OBC category in order to be selected.

5. On 15-6-2007 the applicant was provisionally selected (Annexure A3). Then he was asked to undergo several types of training which he completed during the period 25-6-2007 to 16-10-2007. He was posted as Postal Assistant in Kundapura Head Office vide office order dated 12-10-2007 (Annexure A6). Thereafter, he also submitted his resignation of the post of GDS-BPM, as this was one of the requirements for holding the Post of Postal Assistant and the said resignation was accepted by order dated 5-12-2007. He was given a permanent pension account number vide order dated 21-11-2007 and also a staff quarter vide order dated 4-12-2007. The learned Counsel pointed out that while all these was happening, the respondents by doubting the same, interpretation of some rules and applying different interpretation came to the conclusion that they should cancel the appointment order of the applicant. They issued a show cause notice Annexure A11 to the applicant as to why his selection should not be cancelled. Thus appearing to give him full opportunity, when it is advised the he would have no explanation with different interpretation by his seniors. The learned Counsel pointed out that this show cause notice was in fact shows that the respondents has already taken decision to cancel his selection as Postal Assistant. The order in Annexure A11 came before this Tribunal in OA No.25/2008, the OA was disposed of directing the applicant to give a detailed representation to the respondents and respondents were directed to pass a reasoned order. The learned Counsel for applicant points out that the respondents have passed an order dated 6.4.2009 reiterating that the appointment of the applicant is contrary to the recruitment rules. There upon several consequential orders were also passed such as terminating the services of the applicant, posting him back to GDS BPM post and also asking him to vacate the allotted residential accommodation.

6. The learned Counsel pointed out how the new interpretation made by the respondents is devoid of any merit. The more important fact, however, is that all along the process of allowing him for examination, then selecting him and giving him posting as Postal Assistant, there was never any failure on the part of the applicant. Even if accepting for a moment that the new interpretation of the respondents is correct, they cannot make the applicant suffer without any fault of his and for their insistence. So far as the rules examined by the respondents are concerned the learned Counsel has challenged the reasoning of the respondents. The reasons given by the respondents were:
(1) the vacancy circular had been issued by the SPO of the Division which is contrary to the instructions,

(2) the crucial date for determining the age limit is the closing date for receipt of applications.

(3) the crucial date for completing 3 years as GDS was wrongly mentioned in the vacancy circular

(4) The comparison of the marks obtained by the candidates should be between marks of the candidate and the marks by the last direct recruit of the relevant category selected during the same year. Accordingly, the cut of marks for eligibility prescribed as 62.2% in the circular was incorrect because this were the marks secured by the last direct recruit candidate of the year 2005.

The applications furnished by the applicant to the above incorrections in the circular year as follows:
(1) The vacancy circular dated 14.2.2007 was issued with the approval of the Post Master General and not by the SPO of the Division.

(2) The question of crucial date for age limit has been prescribed only for direct recruits and not for those who are being considered from the GDS.

(3) The recruitment rules for promotional posts from the GDS prescribed only 3 years of experience and does not speak of any age limit.

(4) The cut of marks fixed in the notification at 62.2% was based on the marks secured by the last direct recruit of the same category in the neighboring Division of Puttur since there was no direct recruitment in the Udupi Division itself in 2005. Therefore, to call this as a irregular basis.

7. The learned Counsel for the respondents submits that the whole question of cancelling the appointment of applicant as Postal Assistant has rested on meaning of 'same year' in 2005. As per the interpretation of Respondent-3 the Post Master General of S.K.Region, the term 'same year' refers to the recruitment year and this interpretation has also been confirmed to the Superintendent of Posts of Mangalore Division who is placed in a similar situation as that of Respondent-4 i.e., the Superintendent of Udupi Division by applying this interpretation the SSPO of Mangalore had not selected any GDS in this Division and it was GDS candidates of Mangalore Division who appointed to ?????????????????????? the action of the SSPO of Udupi Division. The SSPO, Udupi Division realising that there were no direct OBC candidates in his Divisions for the year 2005 had chose to look at the neighboring Puttur Division. Following table will show the comparison:
Last Direct Recruit Puttur Division 2005 68.8%
Applicant Udupi Division 2005 73.53%
Last Direct Recruit Udupi Division 2007 74.33%

8. Heard Shri A.R.Holla, learned Counsel for the applicant and Shri N.Y.Guruprakash, learned Additional Central Government Standing Counsel for respondents. We find that the contention of the respondents is not correct. The entire say of the respondents relies on very minor difference of marks namely 74.33% and 73.53% (which itself is sufficiently high percentage of marks) Further, the SSPO of the Udupi Division has compared marks of the neighboring Puttur Division for an apparently valid reason that since there was no direct recruit in his Division. He thought it right compared with the neighboring Division. We however, agree with the learned Counsel for the applicant that for such a minor difference of integrity a person who has already been selected as Postal Assistant and has duly discharged his duties and enjoyed the post for the said period cannot suddenly told “he made mistakes therefore has to suffer”. Since procedurally all the requirements department are kept in and since the cut of marks in both the interpretations as well as marks secured by the applicant all go in the prescribed high percentage. We conclude that the action of the respondents is bad in law.

9. We direct the respondents to reinstate the applicant as Postal Assistant with all consequential benefits and treat the intervening period from 24-2-2009 till the date of his reinstatement as period on duty. Action to be completed in one month's time. OA is disposed of. No order as to costs.



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