IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 WP(C).No. 22816 of 2006(S) --------------------------------------- OA.667/2003 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): --------------------- P.B.SHEEBA, PUTHENPURACKAL HOUSE, VIYOOR P.O., WORKING AS GDS MD., KOLAZHY, THRISSUR DISTRICT. BY ADV. SRI.P.K.RAVISANKAR RESPONDENT(S): ---------------------- 1. P.SASIDHARAN, S/O. DIVAKARAN NAIR, RESIDING AT PANDIYAT HOUSE, CHOOLISSERY, THRISSUR. 2. UNION OF INDIA, REPRESENTED BY THE DIRECTOR GENERAL OF POSTS, NEW DELHI. 3. THE SUB DIVISIONAL INSPECTOR OF POSTS, THRISSUR NORTH SUB DIVISION, THRISSUR. R1 BY ADV. SRI.P.RAMAKRISHNAN R2 & R3 BY ASST. SOLICITOR GENERAL SRI.P. PARAMESWARAN NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/07/2009, ALONG WITH WP(C) NO. 16229 OF 2006 THE COURT ON 30/07/2009 DELIVERED THE FOLLOWING: - 2 - WPC No.22816 of 2006 APPENDIX PETITIONER'S EXHIBITS: Ext.P1: True copy of O.A. No.667 of 2003 of the CAT, Ernakulam Bench dt.02.7.2003 Ext.P2: True copy of the reply statement filed by the 2nd and 3rd respondents herein in O.A.No.667 of 2003 dated 14.10.2003. Ext.P3: True copy of the order of the C.A.T., Ernakulam in O.A.No667 of 2003 dated 10.4.2006. K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. ------------------------------ W.P.(C) Nos.22816 & 16229 of 2006 ------------------------------ Dated this, the 30th day of July, 2009 JUDGMENT Balakrishnan Nair, J. W.P(C). No.22816/06: The third respondent in O.A.No.667 of 2003 before the Central Administrative Tribunal, Ernakulam Bench is the writ petitioner. The first respondent herein was the applicant. The brief facts of the case are the following: The first respondent was a provisional hand working in the post of Extra Departmental Delivery Agent, (for short, 'E.D.D.A.') in the Kolazhy Branch Post Office in Thrissur North Sub Division, Thrissur. Annexure A1 dated 1.5.1997 produced along with Ext.P1 O.A., is the appointment order under which the first respondent was appointed provisionally to the aforementioned post. Annexure A3 would show that he had earlier spells of service as a substitute hand between 1990 and 1994 under the Sub Post Master, Thrissur City. Annexure A4 is the discharge certificate issued to the first respondent which WP(C)Nos.22816 & 16229/06: - 2 - would also show that he had worked for different spells between 1.2.1990 and 3.4.1995. While so, the official respondents took steps to fill up the post of E.D.D.A. at Kolazhy Post Office on a regular basis and issued Annexure A5 notification in December, 1999. It was a post shown as reserved for O.B.C. candidate. The first respondent challenged Annexure A5 before the Tribunal and the said O.A. was allowed quashing the reservation in favour of O.B.C.. Thereafter, fresh notification, Annexure A6, was issued on 6.9.2002. The writ petitioner, the first respondent and others were applicants for the post. In the selection, which was made mainly relying on the marks in the S.S.L.C. Examination, the petitioner stood first and she was appointed as Gramin Dak Sevak (Mail Deliverer) by Annexure A9 order on 16.6.2002. Pursuant to that, she joined duty also. Challenging the said appointment order, the Original Application No.667 of 2003 was filed by the first respondent. According to the first respondent/applicant, he is a regularly appointed provisional hand and therefore, he should be WP(C)Nos.22816 & 16229/06: - 3 - treated as a wait-listed candidate, whenever a vacancy is sought to be filled up. In this case, the first respondent was appointed in a put off vacancy, which arose in 1997. Later, in 1999, that put off employee was dismissed from service and as a result, the regular vacancy arose. Since the first respondent was working as a provisional hand from 1997 in that vacancy, on the dismissal of the incumbent, he should have been absorbed, it was contended. Raising the above ground, the Original Application was filed. The official respondents filed a reply statement, in which it was asserted that, the first respondent was never regularly selected and was appointed on a provisional basis as a stop gap arrangement. Therefore, he is not entitled to be considered for absorption in the regular vacancy, in which he was earlier working provisionally. The absorption of a provisional hand can be made, if only he was a regularly selected provisional hand, as evident from Annexure A7. 2. The Tribunal, after hearing both sides, allowed the Original Application. Annexure A-9 was quashed and in WP(C)Nos.22816 & 16229/06: - 4 - the place of the writ petitioner, the first respondent was ordered to be considered for appointment in the light of Annexure A7 guidelines, which provide for absorption of regularly appointed provisional hands in regular vacancies. The third respondent in the O.A. has filed this writ petition challenging the order of the Tribunal, a copy of which is produced as Ext.P3. 3. We heard the learned counsel on both sides. The learned counsel for the petitioner submitted that the first respondent/applicant was never appointed pursuant to a regular selection. The put off vacancy arose on 1.5.1997. On the very same day, the first respondent was appointed. Therefore, it is clear that, no regular selection was made preceding the appointment of the first respondent under Annexure A1. Therefore, he is not entitled to get regularisation. He is only a substitute chosen from the open market without any reference to merit, by the author of Annexure A1. Therefore, he is not entitled to get any WP(C)Nos.22816 & 16229/06: - 5 - preference in the matter of regular appointment. It is also pointed out that, going by the claim of the first respondent, he should have challenged Annexure A-6 and also Annexure A-5 in full, without restricting the challenge to the extent of providing for reservation for O.B.C.. The learned counsel for the first respondent, on the other hand, supported the view taken by the Tribunal. 4. Going by the date of occurrence of the vacancy, in which the first respondent/applicant was provisionally appointed, we have no doubt in our mind that, it was not an appointment based on a regular selection. Therefore, the first respondent is not entitled to regularisation in service in terms of Annexure A7. Further, if his claim is for absorption, he should have avoided Annexure A6 in appropriate proceedings. In the absence of any challenge to Annexure A6, the claim of the first respondent is plainly untenable. In such circumstances, the impugned order of the Tribunal cannot be sustained. WP(C)Nos.22816 & 16229/06: - 6 - In the result, Ext.P3 is quashed. O.A.No.667 of 2003 filed by the first respondent is dismissed and the Writ Petition (Civil) No. 22816 of 2006 is allowed. W.P.(C) No.16229 of 2006: In view of the judgment in W.P.(C) No. 22816 of 2006, this writ petition is also allowed. Sd/- K. Balakrishnan Nair, Judge. Sd/- C.T. Ravikumar, Judge. DK. (True copy)