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2014 DIGILAW 9 (JK)

Sat Paul v. Union of India and ors.

2014-01-27

HASNAIN MASSODI, M.M.KUMAR

body2014
Per Massodi, J Petitioner was appointed as Extra Departmental Agent (now called Gramin Dak Sewak) in the respondent department on 20.12.1980. He was, thereafter, appointed as Outsider Postman on 03.04.1989, against the clear position in Gandhi Nagar, Post Office, fallen vacant due to promotion of one Shri Girdhari Lal as Postal Assistant. He continued, as such, with effect from 27.03.1989. 2. Apprehending their reversion from Regular Postal Department to Extra Departmental Postal Service, petitioner and his colleague Shri Gharu Ram, filed a writ petition being SWP no. 1427/1994. They succeeded in getting an ad-interim order in their favour and, therefore, continued to officiate as Group-D employees. The respondent department opposed the writ petition on the grounds that the petitioner was appointed as an EDA and that his appointment as Postman for a short term would not make any change in his status. The respondent insisted that the petitioner was an Extra Departmental Hand and in terms of Policy Decision dated 07.12.1972, is to be engaged against a Group D vacancy (Postman) to meet administrative exigency and such appointment for a short term is not to confer any rights on such employee. 3. The writ Court observing that the stand taken by the respondent in opposition to the writ petition could not be faulted on any count whatsoever, dismissed the writ petition on 27.02.1998. It was nonetheless observed that petitioner was to be considered for benefit available to him in terms of Extra Departmental (Conduct & Service) Rules, 1964. Letters Patent Appeal filed against the Writ Court Judgment did not meet any success and was dismissed on 14.03.2001. 4. The respondents vide order dated 30.10.2001 terminated the arrangement whereby petitioner was to officiate as O/S Group-D. Aggrieved with the order petitioner filed writ petition being SWP no. 2738/2001. Petitioner sought quashment of order dated 30.10.2001, reverting him as Extra Departmental Agent and also a direction to the respondents to allow the petitioner to perform duties as Group-D employee in the department. 5. The writ petition was transferred to Central Administrative Tribunal on 29.09.2004. The petition was opposed by the respondents on the grounds that the petition was filed on the same grounds as were urged in the earlier petition i.e. SWP no. 1427/1994 and, therefore, res-judicata operated against maintainability of the petition. 5. The writ petition was transferred to Central Administrative Tribunal on 29.09.2004. The petition was opposed by the respondents on the grounds that the petition was filed on the same grounds as were urged in the earlier petition i.e. SWP no. 1427/1994 and, therefore, res-judicata operated against maintainability of the petition. It was pleaded that the petitioner only because he worked as substitute against a Group-D vacancy, cannot claim a right to hold the post, and resist reversion to EDA position earlier held by him. 6. The Tribunal was not impressed by the preliminary objections raised by the respondents. It, however, did not find any merit in the petition and accepted the stand taken by the respondents that merely because the petitioner worked as substitute against a Group D vacancy would not clothe him with the right to hold the post on substantive basis. The petition (OA) was, accordingly, dismissed. 7. Petitioner questions the Tribunal judgment dated 29.09.2004 in the writ petition, on hand, on the grounds set out in the petition. Petitioner claims to have worked as Postman (Group-D) for more than 16 years. He insists that in terms of Scheme formulated by the respondents to regularize Extra Departmental Hands against Group D vacancies, he is entitled to be confirmed as Postman/Group D in the respondent department. Placing reliance on judgment rendered in Romesh Kumar Bhat v. Union of India and ors. (SWP 428/1998), petitioner pleads that he being similarly circumstanced as the petitioner in the aforesaid writ petition, is entitled to benefit given to the petitioner in wake of judgment rendered on 09.11.1998. It is pleaded that petitioner s colleagues junior to him, and mentioned in para 10 (D), have been since regularized and petitioner singled out for hostile discrimination. 8. The respondents oppose the writ petition on the ground that the petitioner was not engaged as casual labourer/worker and, therefore, is not be entitled to regularization under the Scheme formulated for regularization of casual labourers/workers notified vide No. 45-95/87-SPB-1 dated 12.04.1991 read with No. 45-37/91-SPH-1 dated 05.06.1991. It is pleaded that the petitioner s regularization would be governed by Posts and Telegraphs Extra Departmental Agents (Conduct and Service) Rules, 1964 duly notified by the Posts and Telegraphs Board, Government of India and that the consideration under Rules to regularization is accorded having regard to the seniority, qualification, performance in departmental examination etc. It is pleaded that the petitioner s regularization would be governed by Posts and Telegraphs Extra Departmental Agents (Conduct and Service) Rules, 1964 duly notified by the Posts and Telegraphs Board, Government of India and that the consideration under Rules to regularization is accorded having regard to the seniority, qualification, performance in departmental examination etc. Respondents deny that petitioner while working against as Group-D post for a while can have a right to be regularized against such post. The respondents clarify that in terms of D.G P&T Letter No. 47/31/72-SPB-I dated 07.12.1972, an EDA can be asked to work against a Group D post on daily wage basis without such assignment resulting in any right to the EDA to ask for confirmation against said post. Respondents explaining regularization of few EDAs mentioned in para 10 (D) of the writ petition, plead that the regularized EDAs belonged to a different Division (Railway Mail Service) and have been regularized on the basis of their seniority in said Division. 9. We have gone through the petition as also record available on the file and have heard learned counsel for the parties. 10. Petitioner admittedly was engaged as Extra Departmental Agent (EDA) in the year, 1980. His conditions of service are regulated by Posts and Telegraphs Extra Departmental (Conduct & Service) Rules, 1964. In terms of Rules an EDA holds a civil post and is entitled to safeguards guaranteed under Article 311 (2) of the Constitution. In case of Disciplinary proceedings against an EDA procedure laid down in Central Civil Service (Classification, Control & Appeal) Rules, 1965 are to be followed. EDA is to continue in service till the age of 65 years and entitled to leave and gratuity in terms of the Rule 4-A of the Rules. All these safeguards and benefits are not available to a casual labourer/worker. EDA, therefore, cannot claim any benefit under a Scheme devised for casual labourers. It may be recalled that the petitioner s case has its edifice on Casual Labourers (Grant of Temporary Status & Regularization) Scheme notified vide No. 45-95/87-SPB-1 dated 12.04.1991 read with No. 45-37/91-SPH-1 dated 05.06.1991. Petitioner, in said background, cannot draw any benefit from the aforesaid Scheme. There in the circumstances is, substance in the case set up by the respondents in opposition to the writ petition. 11. Petitioner, in said background, cannot draw any benefit from the aforesaid Scheme. There in the circumstances is, substance in the case set up by the respondents in opposition to the writ petition. 11. Petitioner s grievance as regards regular appointment of S/Shri Joginder Singh and others as Group D employees and discriminatory treatment meted out to him, is equally misplaced. It is pertinent to point out that S/Shri Joginder Singh and four others mentioned in para 10 (D) of the writ petition were working as EDAs in Railway Mail Service Division. Their seniority as EDAs was maintained in said Division. Petitioner belongs to a different Division. His seniority is maintained in his own Division. He obviously cannot seek parity with EDAs of Railway Mail Service and complain that he has been discriminated in the matter of his regular appointment against Group Dvacancy. 12. Petitioner s case for regular appointment against Group-D vacancy has been accorded consideration by the respondents, and rejected on the grounds that his EDAs senior to him in the Division (Jammu Division) are yet to be appointed against Group-D vacancy on regular basis. The Memo No. A-1/Sat Paul/OS Gr-D dated 02.06.1998 annexed with the reply to SWP no. 2738/2001, indicates that the petitioner s claim for appointment against Group-D vacancy is to be considered on its turn on the basis of seniority. Petitioner for one or other reason has not thrown challenge to the aforementioned Memo. 13. Against the above backdrop, the view taken by the Central Administrative Tribunal in its order dated 29.09.2004, dismissing petitioner s application (EDA) cannot be faulted on any ground urged in the petition. 14. We, for the reasons discussed, do not find any merit in the petition. The petition is, accordingly, dismissed. ___