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2017 DIGILAW 1897 (JHR)

Haradhan Manjhi v. Union of India, through the Secretary-Cum-D. G. , Government of India, Ministry of Communication, Department of Posts, New Delhi

2017-11-07

APARESH KUMAR SINGH, B.B.MANGALMURTI

body2017
JUDGMENT : Aparesh Kumar Singh, J. Heard learned counsel for the parties. 2. Original Application No.051/00261/2014 along with M.A. No.051/00024/17 preferred by the applicant/petitioner herein seeking appointment on the post of Gramin Dak Sevak Branch Post Master (GDSBPM) at Kakania Branch Post Office under Nonihat Sub-Post Office in Santhal Pargsana's Division, Dumka has been dismissed by Central Administrative Tribunal by the impugned order dated 26th April, 2017 (Annexure-10) inter alia holding as under : "14. The applicant has continued to work as GDSBPM as per interim protection given by the Tribunal and Hon'ble High Court in various earlier proceedings. It is an admitted position that his regular post is GDSMC, but since he has been allowed to work as GDSBPM. His prayer is that he should be regularized to this post. The respondents have asserted that there are no such instructions for regularization of GDSMC to the post of GDSBPM. The instructions which the applicant has cited in support of his case do not talk about regularization of GDSMC as GDSBPM. It mentions combination of posts when work load does not justify operating another post. All issues relating to work load, whether or not to combine different posts, are matters of operational details and the Tribunal is not in a position to adjudicate on these matters. We have to trust the wisdom of the authorities that they when they decide to fill up vacant posts, they do it because the posts are needed. Adjudication of the applicant's prayer would entail the Tribunal travelling in the territory of operational matters within the domain of department authorities. It is an admitted position that the post of GDSBPM at Kakania is vacant. How can the Tribunal come to a conclusion that this post should be operated by combining the post of GDSMC and therefore, the applicant should be allowed to continue in this post indefinitely? 15. In conclusion, this O.A and M.A. No. 24/2017 are dismissed being devoid of merit. Interim order is vacated. No order as to costs." 3. The brief facts as borne out from the records show that the applicant was appointed as Extra Departmental Male Carrier (EDMC) at Kakania Branch Post Office in the year 1980. He was posted as GDSBPM in the same Branch Post Office after the said post became vacant since 2004. Interim order is vacated. No order as to costs." 3. The brief facts as borne out from the records show that the applicant was appointed as Extra Departmental Male Carrier (EDMC) at Kakania Branch Post Office in the year 1980. He was posted as GDSBPM in the same Branch Post Office after the said post became vacant since 2004. The applicant cited letter dated 12th September, 1988 of DG Posts, as per which when an ED post falls vacant in the same office or in any office in the same place and if one of the existing ED is preferred to work against the said post, he may be allowed to be appointed against that vacant post without seeking applications through the employment exchange provided he is suitable for the posts and fulfills all the required conditions. When the applicant's request was not being decided, he approached learned C.A.T in O.A. No. 127 of 2014, which was disposed of by the order dated 10th July, 2014 without entering into the merits of the case of the parties, however, giving liberty to the respondent to dispose of the representation within a time period. By a detailed reasoned order dated 5th November, 2014, the same was rejected and was also made subject matter of challenge in the instant O.A. Applicant had also sought recruitment notification dated 21st March, 2017 to be kept in abeyance. The plea of the applicant is based on the only ostensible grounds that he is working as GDSBPM under local arrangement since 2004, therefore he may be formally appointed to that post. 4. In the sequence of facts, it further appears that in 2004 when the post of GDSBPM fell vacant due to retirement of one Raju Singh and promotion of one Anil Kumar Mandal, this applicant was directed to perform the duty of GDSBPM in addition to his own work vide Memo dated 16th November, 2004. He continued to perform the duty of GDSBPM, Kakania due to ban on recruitment of GDS staff. The applicant again moved the learned Tribunal in O.A No. 70 of 2008 for his regularization. As per the observation made in the said O.A. upon the respondents, his claim was considered and rejected vide letter dated 2nd July, 2009. He continued to perform the duty of GDSBPM, Kakania due to ban on recruitment of GDS staff. The applicant again moved the learned Tribunal in O.A No. 70 of 2008 for his regularization. As per the observation made in the said O.A. upon the respondents, his claim was considered and rejected vide letter dated 2nd July, 2009. In the meantime, one Praful Kumar was recommended for selection to the said post but in view of the interim order of learned C.A.T passed in CCPA No. 29 of 2008, the selection was approved subject to the final outcome of Tribunal's decision. 5. The respondents contested the case before learned Tribunal and have also filed counter affidavit in the present writ petition. According to them, once the post falls vacant, it can be filled up only through regular appointment by making fresh application. Since the applicant did not submit required application, his claim was rejected earlier by the Director Postal Services. This again was challenged in O.A. No. 166 of 2009, wherein the learned Tribunal directed the respondents to allow him to work as GDSBPM till decision regarding new selection was taken. This was challenged by the department before this Court in W.P.(S) No. 2205 of 2010. The said writ petition was disposed of by order dated 7/29th September, 2010 with a direction to allow the applicant to work as GDSBPM, Kakania BO till the date of finalization of the selection process. Thereafter another Original Application No. 15/2012 seeking regularization on the same post was filed by the applicant before learned Tribunal, which was still pending. This is how the applicant has continued to work as GDSBPM since 2004 till the passing of the impugned order. 6. The plea of the applicant for direct appointment on the said post without following the procedure prescribed in law and the mandate of Articles 14 and 16 of the Constitution of India, is untenable in view of the settled position in law. We, therefore, do find any error in the impugned order warranting our interference. No right of regularization can accrue on such a temporary arrangement in teeth of the existing Rules as is also the case of the respondent-employer. Accordingly, the writ petition is dismissed.