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2011 DIGILAW 763 (KER)

Postmaster v. M. Kunjukrishna Pillai

2011-07-14

C.N.RAMACHANDRAN NAIR, P.S.GOPINATHAN

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JUDGMENT : C.N. Ramachandran Nair, J. The Writ Petition is filed by the postal department challenging Ext. P2 order issued by the CAT which is by way of an execution order to give effect to an order issued in favour of the respondent in OA No. 277/2004 decided on 07/10/2005. 2. We have heard the learned standing counsel appearing for the petitioner and the learned senior counsel Sri. O.V. Radhakrishnan appearing for the respondent. 3. The respondent was a casual employee in the postal department. He was eligible to be appointed as a Group 'D' employee in the 25% quota available to casual employees, the balance 75% reserved for Grameen Dak Sevaks. Going by the availability of quota for appointment from the two streams of employees referred above, every fourth post should go to a casual employee. However, the postal department treated every year as a unit for employment and ensured that casual employee never gets a job because the maximum post arises in an year was three from 2002 to 2007. From the Tribunal's order what is clear is that in 2002, 2003 and 2006 three vacancies each arose and according to the postal department all three were given to the 75% quota reserved for GDS. So far as 2004 and 2005 are concerned, two each vacancies arose and all these posts were given to the employees coming from the GDS quota. In other words, in none of these years four or more vacancies arose and consequently postal department declined to give employment to any casual employee. The respondent was admittedly the senior most casual employee in Kollam District eligible to be appointed in the first quota available to that category. Even when the respondent's application was allowed by the CAT in the OA directing the petitioners to make appointment to the available vacancy, the CAT did not probably expect the unit of appointment as an year taken by the postal department to negative the claim of the employees from this category. However, in the second round eventhough the contempt application was rejected, the CAT vide Ext. P2 proceeded to apportion the available vacancies in fractions of less than one and directed the department to give one post treating the fraction of less than one as one. It is against this order, the department has filed this appeal. 4. However, in the second round eventhough the contempt application was rejected, the CAT vide Ext. P2 proceeded to apportion the available vacancies in fractions of less than one and directed the department to give one post treating the fraction of less than one as one. It is against this order, the department has filed this appeal. 4. After hearing both sides and after going through the Tribunal's order, we are unable to sustain the order of the Tribunal, though in our view the respondent was rightly granted the benefit. If fraction of less than one is converted to one appointments to be made will be for more than the available vacancies. 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 yearly 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 2003 because in 2002 and 2003 together a total of six vacancies arose, out of which one should have necessarily gone to the casual employee. It is now reported that the respondent retired on 30/06/2007. Going by the order of the Tribunal which was passed on 07/10/2005, we feel that the respondent should have been appointed in the next vacancy arising after the order and if it was given, he would have got just 18 months service as a Group D employee of the postal department. This is because by 2005 altogether ten vacancies arose in the category and at least two should have gone to the casual employees where as the department appointed none from that category. We find that in spite of the successful litigation and an order from CAT in favour of the respondent/ he was denied the benefit by the department by taking a view which is completely against the pattern of recruitment on quota basis. 5. We, therefore, dispose of the WP (C) by modifying the relief granted by the Tribunal vide Ext. We find that in spite of the successful litigation and an order from CAT in favour of the respondent/ he was denied the benefit by the department by taking a view which is completely against the pattern of recruitment on quota basis. 5. We, therefore, dispose of the WP (C) by modifying the relief granted by the Tribunal vide Ext. P2 by directing the petitioners to treat the respondent as notionally appointed as a Group D employee on 01/01/2006 and give him salary and all the benefits admissible to him up to the date of retirement i.e., 30/06/2007, within a period of three months from the date of receipt of a copy of this judgment. This should be done after adjusting the payments made to him as a casual employee during the six months period. However, there will be a direction to the department to start hereafter filling up Group D post by treating every four posts as a unit and give one to the casual employee and the remaining three to GDS irrespective of the year in which the vacancy arises. Since there has been denial of employment to the casual employees on account of the wrong pattern of appointment adopted the rotation is to be started by giving next vacancy arising to the casual employee and thereafter fill remaining three arising vacancies to GDS quota and repeat the pattern to fill up future vacancies.