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2017 DIGILAW 468 (ORI)

Union of India v. Suryakanta Padhi

2017-04-25

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S.N. Prasad, J. This writ petition is under Articles 226 and 227 of the Constitution of India preferred by the Union of India through the Chief Post Master General, Orissa Circle, Bhubaneswar assailing the order dtd.28th March, 2016 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.354 of 2012 whereby and where under the Tribunal, while allowing the original application, has directed the authorities to consider the appointment of applicant to the post of GDSBPM, Panchurukhi B.O. against which he has been working being in-charge as per rules and instructions, subject to fulfillment of other eligibility conditions. 2. The case of the opposite party – applicant before the Tribunal was that he was appointed provisionally as Gramin Dak Sevak (in short G.D.S.) packer/mail carrier in Baliapal Sub-Office (in short S.O.) under Jaleswar Head Office with effect from 02.04.2001 vide order dtd.26.3.2001 issued by the Inspector of Post Offices, Jaleswar West Postal Sub-Division. One Bansidhar Pramanik, the regular Gramin Dak Sevak – Branch Post Master (in short G.D.S.-B.P.M.) of Pancharukhi Branch Office was promoted to the post of Postman from G.D.S.-B.P.M. with effect from 16.4.2004, as a result of which the post of G.D.S.-B.P.M. of Panchurukhi Branch Office fell vacant and as such to manage the day to day work of the branch office, the Inspector of Posts, Jaleswar West Postal Sub-Division, Jaleswar vide order dtd.15.10.2004, on temporary arrangement, directed the opposite party – applicant to work as G.D.S.-B.P.M., accordingly, the opposite party – applicant relieved the incumbent of the post of G.D.S.-B.P.M., Bansidhar Pramanik on 16.10.2004 and has been continuing till date, therefore the opposite party – applicant has represented to the authorities on 28.4.2011 for his permanent absorption against the post of G.D.S.-B.P.M. but the same was not considered, rather the Superintendent of Post Offices, Balasore Division notified to fill up the post of G.D.S.-B.P.M., Panchurukhi Branch Office. The opposite party – applicant approached the learned Central Administrative Tribunal vide O.A. No.354 of 2012 and the Tribunal, vide its order dtd.28.3.2016 while allowing the original application observed that in terms of Director General of Posts letter dtd.12.09.1988 the opposite party – applicant should be allowed to be appointed against the vacant post of G.D.S.-B.P.M. without coming through the Employment Exchange since he fulfills all the required conditions. 3. 3. The case of the authorities before the Tribunal was that the circular dtd.12.9.1988 having lost its force, the day when the Service Rules for Postal Gramin Dak Seva came into force i.e. with effect from 24th April, 2001 wherein the provision has been made regarding the persons holding the post of Extra Departmental Agents under the Posts and Telegraphs Extra-Departmental Agents (Conduct and Service) Rules, 1964 (herein after referred to as the Rules, 1964) on regular basis on the date of commencement of these rules shall be deemed to have been appointed to and hold the posts of Gramin Dak Sevaks in accordance with the provisions of these rules, one of the conditions there is at sub-rule (iv) of the NOTE (II) that a Sevak shall not be eligible for transfer in any case from one post/unit to another post/unit except in public interest and the public interest has been defined under the provision of amended Rule 3 of the G.D.S. (Conduct & Employment) Rules, 2001 (herein after referred to as the Rules, 2001) which contains provision that the transfer facility to G.D.S. from a post/unit can only be passed on the following grounds:- (i) The G.D.S. who is posted at a distant place on redeployment in the event of abolition of the post. (ii) GDS appointed on compassionate grounds and posted at distant place. (iii) Woman G.D.S. on her marriage/remarriage. (iv) Where the G.D.S. himself/herself suffers from extreme hardship due to a disease and for medical attention/treatment, such transfer may be allowed on production of a valid medical certificate from the medical officer of a Government Hospital. (v) Where the G.D.S. is looking after the welfare of a physically handicapped/mentally handicapped person/dependent and he/she requires to move to different places to give support to such physically/mentally challenged person/dependent. It has been contended that the tribunal without appreciating the fact that the moment the Rules, 2001 came into being, the executive instruction dtd.12.9.1988 will lost its force, but putting reliance upon the circular dtd.12.9.1988, the order has been passed, hence the same is not sustainable in the eye of law. He submits that the executive instruction are to be followed only in absence of statutory rule and the day when the statutory rule came into force, the executive instruction cannot have any force. He submits that the executive instruction are to be followed only in absence of statutory rule and the day when the statutory rule came into force, the executive instruction cannot have any force. It has further been contended that the petitioner has not made out his case regarding relief on the basis of the provision as contained in sub-rule (iv) of NOTE (II) of the Rules, 1964 regarding his eligibility for transfer from one palace/unit to another place/unit except in public interest as has been laid down under the amended Rule 3 of the Rules, 2001, hence he cannot be said to get the benefit of his posting. On these grounds this writ petition has been filed. 4. In reply, learned counsel representing the opposite party - applicant has submitted that the opposite party - applicant is coming under the definition of public interest as per the provision of amended Rule 3 of the Rules, 2001 since he is also facing hardship due to ailment. 5. In rebuttal reply, learned counsel representing the Union of India has submitted that in the High Court the opposite party – applicant is making out a new case since he has not pleaded either before the Tribunal or before this court that he is suffering from hardship due to medical ailment, as would be evident from his represent which has been annexed to the writ petition. 6. We have heard the learned counsels for the parties and perused the documents available on record. The sole dispute raised in this writ petition is regarding consideration of candidature of the opposite party – applicant for his appointment to the post of G.D.S.-B.P.M. on the basis of the post having been fallen vacant due to promotin of one Bansidhar Pramanik, a regular Gramin Dak Sevak Branch Post Master of Pancharukhi B.O. The relief has been sought for by him on the strength of the executive instruction dtd.12.9.1988. While on the other hand, the plea of the Union of India is that the executive instruction dtd.12.9.1988 has got no force because the Rules, 2001 has came into being and the petitioner has been appointed during the course of applicability of Rules, 2001, hence he cannot claim his benefit on the basis of the circular dtd.12.9.1988. It is not in dispute that the authorities have got power to make executive instructions in absence of statute. It is not in dispute that the authorities have got power to make executive instructions in absence of statute. In the instant case when the rules has not been formulated by the authority governing the field of recruitment of the post, Executive Instruction has been issued by the authorities on 12.9.1988 for fulfilling the post by way of transfer with certain conditions which is being reflected herein below:- “Normally, EDAs are to be recruited from local area and they are not eligible for transfer from one post to another; but inn cases where a post has been abolished, EDAs are to be offered alternative appointment within the sub-division in the next available vacancy in accordance with Order No.43-24/64-Pen., dtd.12.4.1964 and further clarified in Order No.434/77 Pen., dtd.23.2.1979. As per orders those of EDAs who held as surplus consequent to the abolition of ED posts are to be adjusted against the posts that may occur subsequently in the same office or in the neighbouring offices. In view of this, it will not be correct to allow transfer of EDAs freely from one post to other. However, it has now been decided that exception may be made in the following cases:- (i) When an ED post falls vacant in the same office or in any office in the same place and if one of the existing EDAs prefers to work against that post, he may be allowed to be appointed against that vacant post without coming through the Employment Exchange, provided he is sutiable for the other post and fulfils all the required conditions. (ii) In cases where EDAs become surplus due to abolition of posts and they are offered alternative appointments in a place other than the place where they were originally holding the post, to mitigate hardship, they may be allowed to be appointed in a post that may subsequently occur in the place where they were originally working without coming through Employment Exchange.” It is evident from the decision taken by the authorities under the executive instruction as quoted above that the extra departmental agents are to be recruited from local areas and they are not eligible for transfer from one place to another but in cases where posts have been abolished, extra departmental agents, in short EDAs are to be offered alternative appointment within the sub-division in the next available vacancy in accordance with the order dtd.12.4.1964 and its further clarification dtd.23.2.1979. As per the decision, the E.D.As. who are held as surplus consequent upon abolition of ED posts are to be adjusted against the posts that may occur subsequently in the same office or in the neighbouring offices. However, the exception has been carve out on the basis of the fact that when an E.D. post falls vacant in the same office or in any office in the same place and if one of the EDAs prefers to work against that post, he may be allowed to be appointed against that vacant post without coming through the Employment Exchange, provided he is suitable for the other post and fulfills all the required conditions. Further in cases where EDAs become surplus due to abolition of posts and they are offered alternative appointments in a place other than the place where they were originally holding the post to mitigate hardship, they may be allowed to be appointed in the posts that may subsequently occur in a place where they were originally working without coming through the Employment Exchange. The executive instruction was prevalent till the statute has came regarding the recruitment Rules known as Postal Gramin Dak Sevak having came in to effect w.e.f. 24th April, 2001. The Rules, 1964 contains provision to appoint the EDAs on regular basis and the employees who were in service on the date of commencement of the Rule shall be deemed to have been appointed to and hold the posts of Gramin Dak Sevaks in accordance with the provision of these rules. The Rules, 1964 contains provision to appoint the EDAs on regular basis and the employees who were in service on the date of commencement of the Rule shall be deemed to have been appointed to and hold the posts of Gramin Dak Sevaks in accordance with the provision of these rules. The said rule contains some provision under NOTE (II) which is being reflected herein below:- “NOTE II (i) A Sevak shall not be required to perform duty beyond a maximum period of 5 hours in a day; (ii) A Sevak shall not be retained in employment beyond 65 years of age; (iii) A Sevak shall have to give an undertaking that he has other sources of income besides the allowances paid or to be paid by the Government for adequate means of livelihood for himself and his family; (iv) A Sevak shall not be eligible for transfer in any case from one post/unit to another post/unit except in public interest; (v) A Sevak shall be outside the Civil Service of the Union; (vi) A sevak shall not claim to be at par with the servant of the Government; (vii) Residence in post village/in the delivery jurisdiction of the post office before appointment shall be mandatory for a Sevak; (viii) Post Office shall be located in the accommodation to be provided by Gramin Dak Sevak Sub-Postmaster/Branch Postmaster suitable for use as Post Office Premises; (ix) Combination of duties of a Sevak shall be permissible; (x) A Sevak can be discharged from employment before attaining the mandatory age of 65 years if he is declared prematurely incapacitated for future employment by a competent Medical Authority.” One of the provisions contained in NOTE (II) sub-rule (iv) stipulates that a Sevak shall not be eligible for transfer in any case from one post/unit to another post/unit except in public interest and the public interest has been defined under the provision of amended Rule 3 of Rules, 2001 as reflected under the paragraph of submission of the Union of India and as such the same is not being repeated for the sake of repetition. There is no dispute about the legal proposition that the moment the statute has been formulated governing the recruitment rule, the executive instruction will lost its force. There is no dispute about the legal proposition that the moment the statute has been formulated governing the recruitment rule, the executive instruction will lost its force. The Rules, 2001 has came into being on 24th April, 2001 with a clear cut stipulation that who were rendering their services will be deemed to have been appointed to and hold the post of Gramin Dak Sevak in accordance with the provision of the rules. 7. The petitioner admittedly was appointed as Gramin Dak Sevak on 2.4.2001 and by virtue of coming into effect the Rules, 2001 w.e.f. 24.4.2001, he will be deemed to be appointed in accordance with the provision of the Rules, 2001, hence the conditions mentioned therein will be applicable. 8. The case of the petitioner is that he is eligible to get the post of G.D.S.-B.P.M. on regular basis on account of the post having fallen vacant due to promotion of one Bansidhar Pramanik and to that effect due consideration has been made by the authorities on his representation but ultimately he has not been taken under regular establishment although he is entitled to get the said benefit on the basis of the executive instruction dtd.12.9.1988. 9. We have gone through the contents of the pleading made in the original application as well as the contention raised by the opposite party - applicant before the Tribunal and the fact which was placed before the tribunal by him is for a direction to consider his case in the light of the letter dtd.12.9.1988 and the tribunal has considered this aspect of the matter with a direction to appoint him in the light of the letter dtd.12.9.1988. According to our conscious view the tribunal has erred in passing the order placing reliance on the letter dtd.12.9.1988 reason being that after coming into effect of the Rules, 2001 w.e.f. 24.4.2001, the opposite party –applicant will be deemed to have been appointed under the strength of Rules, 2001, hence the provision contained therein will be applicable and not the provision contained in letter dtd.12.9.1988, hence the petitioner cannot be said to be entitled to get the benefit of his appointment on the basis of the condition laid down in the letter dtd.12.9.1988, but the tribunal, without taking into consideration this aspect of the matter and completely ignoring the applicability of the Rules, 2001, has allowed the original application. 10. 10. Learned counsel representing the opposite party - applicant has submitted that his case has been recommended by the authority in the year 2011 and as such his case has to be considered in the light of the Rules, 2011 since on the due date of consideration by the authority Rules 2011 has came into being. We have also examined the provision of Rules, 2011 which has got no difference with the provision as has been provided under the Rules, 2001, hence the contention raised by the learned counsel for the opposite party – applicant is not acceptable to us, hence not accepted. 11. At this juncture learned counsel for opposite party - applicant has submitted that he is also coming under the parameter of sub-rule (iv) of NOTE-II since he is facing hardship due to medical ailment and to that effect, due medical certificate has been submitted, but when we have examined the representation submitted by him before the authorities dtd.3.5.2011, we found no stipulation therein regarding his suffering from medical ailment leading to hardship. We after taking into consideration this aspect of the matter, are of the considered view that the tribunal has lost its sight regarding the settled proposition as also the applicability of the rules, 2001/Rules, 2011 while allowing the original application hence the same is not sustainable in the eye of law, accordingly, the same is set aside. In the result the writ petition is allowed. 12. At this juncture learned counsel for opposite party – applicant has submitted that he may be given liberty to approach the authority again showing his hardship due to suffering from medical ailment, since we are allowing the writ petition by rejecting the claim of the opposite party - applicant, it will not be proper for this court to pass any specific direction in this regard, however it is left open to the opposite party – applicant to approach before the authority, if he so desires.