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2012 DIGILAW 489 (GAU)

Sri Rajen Borah, Son of Sri Padmeswar Borah, Resident of Village and Post Office – Lakhanabari, Laluk, District – Lakhimpur, Assam & Ors. v. Union of India, represented by the Secretary, Ministry of Communication, Department of Posts, New Delhi – 110001 & Ors.

2012-04-19

B.K.SHARMA, INDIRA SHAH

body2012
Sharma, J;— Both the writ petitions arising out of the common judgement and order dated 5.5.2011 passed in two Original Applications being OA No. 55/2010 and OA No. 58/2010, have been heard together and are being disposed of by this common order. 2. While Mr. R. Sarma, learned counsel appearing for the petitioner involved in WP(C) No. 3538/2011 represents the applicant involved in OA No. 58/2010, Mr. M.H. Choudhury, learned counsel represents the petitioner in WP(C) No. 4267/2011 who was the applicant in OA No. 55/2010. The said two OAs were filed by the petitioners assailing the orders dispensing with their services as GDSMD (Gramin Dak Sevak Mail Deliverer). It is an admitted position that they were appointed as such purely on temporary and contractual basis. While the petitioner in WP(C) No. 3538/2011 was appointed on 12.12.2007, the petitioner involved in WP(C) No. 4267/2011 was appointed by order dated 27.3.2008. In both the orders, it was clearly stated that their appointments as GDSMD were purely on temporary and contractual basis and would be liable to be terminated at any time without any notice and without assigning any reason. 3. Their aforesaid services came to be terminated by order dated 19.2.2010 as per the provisions of the GDS (Conduct and Employment) Rules, 2001. Under Rule 8 of the said Rules, the employment of a Sevak who has not already rendered more than three years’ continuous employment from the date of his appointment shall be liable to termination at any time by a notice in writing given either by the Sevak to the Appointing Authority or by the Appointing Authority to the Sevak. The period of such notice shall be one month. As per proviso to Rule 8, the employment of any such Sevak may also be terminated forthwith and on such termination, the Sevak shall be entitled to claim a sum equivalent to the amount of Basic Time Related Continuity Allowance plus Dearness Allowance as admissible for the period of the notice at the same rates at which he was drawing them immediately before the termination of his employment, or, as the case may be, for the period by which such notice falls short of one month. 4. By the impugned order dated 19.2.2010, the services of the writ petitions were dispensed with, with clear one months’ notice. 5. 4. By the impugned order dated 19.2.2010, the services of the writ petitions were dispensed with, with clear one months’ notice. 5. Assailing the aforesaid order dispensing with their services, the petitioners had approached the Central Administrative Tribunal, Guwahati Bench by filling the aforesaid OAs. The Tribunal on perusal of the records and upon hearing the learned counsel for the parties having dismissed the OAs, the applicants have filed these two writ petitions for setting aside the order passed by the learned Tribunal and to reinstate them in service. 6. We have heard Mr. R. Sarma, learned counsel for the petitioner in WP(C) No. 3538/2011 as well as Mr. M.H. Choudhury, learned counsel representing the petitioner in WP(C) No. 4267/2011. We have also heard Mrs. R. Bora, learned CGC. 7. There is no dispute that the petitioners had been appointed purely on temporary and contractual basis and that too without following any process of selection. Although, Mr. R. Sarma, learned counsel representing the petitioner in WP(C) No. 3538/2011 in reference to the order of appointment, has submitted that his appointment, although was temporary, but as per the stipulation made in the order of appointment, the same was to continue till regular appointment. However, as will be seen from the terms and conditions of the appointment, the appointment was purely temporary and contractual with the clear stipulation that his service would be liable to be terminated at any point of time without assigning any reason and also without any notice. The fact of the matter is that both the petitioners were appointed de hors the recruitment rules. 8. Learned counsel for the petitioners have drawn our attention to the executive instructions issued by the Department of Posts, which have been compiled in Swamy’s Compilation of Service Rules for Postal Gramin Dak Sevak. Under the said compilation, the particular letter issued on 30.12.1999 speaks of provisional appointment of ED Agents. As per the stipulation made in the said circular letter, in case of any difficulty in regular appointment, provisional appointment to be made, which however, will not and cannot mean for provisional appointment can be made without following the recruitment rules and without the approval of the Controlling Officer. Moreover, the circular letter dated 4.9.1982 under the same compilation, clearly speaks of recruitment of ED Agents through employment exchange. 9. Moreover, the circular letter dated 4.9.1982 under the same compilation, clearly speaks of recruitment of ED Agents through employment exchange. 9. In both the case, the petitioners were appointed in clear violation of the recruitment rules and without the approval of the competent authority. It was in such circumstances, the competent authority in the Postal Department decided to dispense with the services of the petitioners and accordingly by the impugned orders dated 19.2.2010, their services were dispensed with. 10. The Tribunal has discussed all the aspects of the matter in detail in the impugned judgement and order. It has rightly been held by the Tribunal that if the impugned orders are interfered with, the same will amount to upholding the back door and illegal appointment. The Tribunal has rightly held that both the appointments having been made de hors the procedure prescribed by the rules, the same cannot be sustained. 11. For all the aforesaid reasons, we do not find any infirmity in the impugned common judgement and order dated 5.5.2011 passed by the learned CAT, Guwahati Bench in OA No. 55/2010 and 58/2010. Consequently, no relief can be granted to the petitioner and accordingly, both the writ petitions are dismissed. 12. Before parting with the case records, we place on records that since both the petitioners have rendered their services as GDSMD and thereby have gained experience, in case of any future employment including provisional appointment, their candidatures may be considered taking note of the experience gathered by them. 13. There shall be no order as to costs. _____________