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2011 DIGILAW 865 (KER)

A. M. Geetha Devi v. Binsha Mol.

2011-08-03

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

body2011
Judgment :- 1. Petition under Article 227 of the Constitution of India. The original petitioner is the 6th respondent in O.A. 494/2009 before the Central Administrative Tribunal, Ernakulam Bench. Ext.P1 is the copy of the petition with Annexures. The first respondent herein is the petitioner before the Tribunal. Brief facts of the case is that the 6th respondent herein issued Annexure I notification inviting application for provisional appointment to the post of Gramin Dak Sevak Branch Postmaster (GDSBPM) at Valillapuzha Post Office in the Time Related Continuance Allowance (TRCA) of Rs. 1600-40-2400 per month. Responding to the notification, the first respondent submitted her application. After due process of selection, she was selected and her selection was intimated by Annexure –II letter dated 24.9.2008. Annexure All reads: “You have been provisionally selected to the post of Gramin Dak Sevak Branch Postmaster, Vallilapazha, purely on temporary basis subject to verification of residential condition and other aspects. ………….” 2. Inspector Post (IP), Malappuram Sub Division was directed to impart necessary training to the first respondent and to place her in charge of the Branch Office after observing all the appointment formalities including inspection of accommodation offered by her to house the post office. Among other things, the residence condition of the first respondent was also sought to be verified and satisfied by the IP and to forward a certificate to the effect that the first respondent had to supplement her income from other sources so as to have adequate means of livelihood to support herself and family. 3. By Annexure A3, the first respondent was requested to undergo training. Accordingly, she underwent training and she was posted on 15.10.2008 for which Annexure A4 order dated 3.12.2008 was issued with retrospective effect. While working so, on 5.5.2009, accordingly to the first respondent, the petitioner, along with some trade union leaders came to the post office and she was forcefully removed from the seat. The first respondent was substituted by the petitioner. To avoid tense situation, the first respondent left the office and made a representation to the 6th respondent which fell in deaf ears. On 8.5.2009, Annexure A7 representation was given to the 6th respondent. By Annexure A8 letter, the request of the first respondent was rejected. Therefore, the first respondent approached the Tribunal below by filling O.A. 494 of 2009. To avoid tense situation, the first respondent left the office and made a representation to the 6th respondent which fell in deaf ears. On 8.5.2009, Annexure A7 representation was given to the 6th respondent. By Annexure A8 letter, the request of the first respondent was rejected. Therefore, the first respondent approached the Tribunal below by filling O.A. 494 of 2009. By Ext.P4, the impugned order, dated 1.11.2010, the petition was allowed and the first respondent was ordered to be reinstated in service. Aggrieved by that order, petitioner preferred this original petition under Article 227 of the Constitution of India. 4. We have heard either side and perused the order impugned and connected documents. 5. The fact that the first respondent was appointed as Branch Post Master at Valillapuzha, after due selection process is not disputed. It is also not disputed that the first respondent was removed on 5.5.2009 from the office by Annexure A6 order dated 20.2.2009 and the petitioner herein was posted in that post. Accordingly to the petitioner, she entered the service provisionally on 1.8.2001 as Branch Post Master, Keezhuparambu where Smt. O.K. Pennutty, who was holding that post was put off from duty. Smt. Pennutty moved the Tribunal below and obtained an order in her favour. Consequently, she was reinstated on 22.7.2007. The petitioner being a retrenched Branch Post Master, She was posted at Omanur Branch Office where there was an existing vacancy. Since the petitioner was residing at Kuttooly under the delivery jurisdiction of Valillapuzha post office and she was residing 25 kms. away from the Omanur Branch Office, she applied for transfer to Valillapuzha Branch Office when that post became vacant. Accordingly, she, being a retrenched Postmistress, was transferred and posted at Valillapuzha by Annexure A6 order dated 20.2.2009. Though the order was issued on 20.2.2009, it was not communicated. The order was communicated on the Afternoon of 5.5.2009 by the Sub Divisional Inspector, Malappuram. The petitioner was asked to take charge immediately and accordingly in the presence of the Sub Divisional Inspector, she took charge at Valillapuzha. The first respondent being a provisional hand, she is not entitled to claim regular posting and that she was duly removed from the office to accommodate the petitioner, who is a retrenched officer and that the order impugned passed by the Tribunal below is not sustainable. 6. The first respondent being a provisional hand, she is not entitled to claim regular posting and that she was duly removed from the office to accommodate the petitioner, who is a retrenched officer and that the order impugned passed by the Tribunal below is not sustainable. 6. Annexure R4 order relating to Limited Transfer Facility to Gramin Dak Sevaks would show that Gramin Dak Sevaks will normally be eligible for only one transfer during the entire career. Clause 3(ii) would show that request for such transfer will be considered against the future vacancies of GDS and that too after examining the possibility of recombination of duties of GDS. That being the Limited Transfer Facility available to the petitioner and the first respondent, though the petitioner is entitled to one transfer during her service, it could be considered only against future vacancies and not by retrenching the first respondent who was appointed, though on a temporary basis, after due selection process. Having due regard to the nature of appointment, the petitioner and the first respondent are almost in an identical position. Of course, the petitioner has long term service in her credit. It is not disputed that the petitioner was appointed as Branch Postmistress at Keezhuparambu on a put off vacancy and she had to be removed from that post when the put off BPM was ordered to the reinstated. As a consequences, the petitioner was posted at Omanur on 22.7.2007. Annexure A1 would show that the notification inviting application for appointment as Branch Post Master at Valillapuzha was issued on the very same day. It was thereafter the selection process was conducted. It goes without saying that the training and appointment of the first respondent were done while the petitioner was working at Omanur Branch Post Office. Annexure A2 would show that the accommodation for the Branch Office was arranged by the first respondent. Had the petitioner been eligible for a transfer and posting at Valillapuzha, the official respondents should not have conducted selection process for selecting the first respondent, should not have been sent her for training and she should not have been asked to find out accommodation for the Branch Post Office. Had the petitioner been eligible for a transfer and posting at Valillapuzha, the official respondents should not have conducted selection process for selecting the first respondent, should not have been sent her for training and she should not have been asked to find out accommodation for the Branch Post Office. The materials on record would show that though Annexure A6 order was passed on 20.2.2009, that was not communicated to first respondent and she was thrown out of the office surprise by the Sub Divisional Inspector and the petitioner was reinstated. The Limited Transfer Facility would show that even if the petitioner was entitled to a transfer to her convenience as a retrenched officer appointed at a distance place, the request for transfer should have been considered only against the future vacancies. But the official respondents arbitrarily removed the first respondent and the petitioner was posted against the Limited Transfer Facility norms that too without notice or serving the order. Accordingly to the learned counsel for the petitioner, since the first respondent was a provisional hand no notice is required to remove her. We find no merit in that argument because Annexure A1, A2 and A4 would show that the Branch Office was working in the accommodation provided by the first respondent and the first respondent is governed by the Gramin Dak Service (Conduct and Employment) Rules 2001, as amended from time to time and all other rules and orders applicable to Gramin Dak Sevaks (GDS). Since the accommodation to the Branch Office at the cost of the first respondent was a condition precedent for the appointment given to the first respondent as evident by Annexure A1 and A2, she is entitled to get notice before she being substituted by the petitioner. Secondly, by virtue of Annexure A4 order the first respondent is entitled to hold the office till a regular hand joins duty. It is on that assumption she arranged accommodation at her costs to run the office. When she is proposed to be shifted by a non regular appointee, definitely she is entitled to get notice. Secondly, by virtue of Annexure A4 order the first respondent is entitled to hold the office till a regular hand joins duty. It is on that assumption she arranged accommodation at her costs to run the office. When she is proposed to be shifted by a non regular appointee, definitely she is entitled to get notice. Even if it is assumed that by virtue of long time holding of the post in another office, though on provisional basis, the petitioner is entitled claim right as a regular hand, because of Clause 3(ii) of the Limited Transfer Facility, the request for transfer made by the petitioner can be considered only against a future vacancy and not to the post held by the first respondent. We are surprised to note that though Annexure A6 was passed as early as 20.2.2009, it was kept secret and even without serving it at the spot, the first respondent was removed on 5.5.2009. The conduct of the 6th respondent can no way be justified. In this view of the matter, Annexure A6 order is vitiated as it is arbitrary and in contravention of the orders applicable to GDS. Therefore, it is not sustainable. The Tribunal below was correct in setting aside the same and directing the first respondent to be reinstated. We find no merit in this original petition. Accordingly, this original petition is dismissed. The official respondents are directed to see that the order impugned is implemented at the earliest not later than two weeks from today. 7. No costs.