IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 WP(C).No. 16217 of 2010(S) -------------------------- PETITIONER(S): RESPONDENTS -------------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA. 2. THE SUPERINTENDENT OF POST OFFICES, MANJERI DIVISION, MANJERI, MALAPPURAM DISTRICT. 3. THE ASST. SUPERINTENDENT OF POST OFFICES, MANJERI SUB DIVISION, MANJERI. 4. THE POSTMASTER, MANJERI, MALAPPURAM DISTRICT. 5. THE BRANCH POSTMASTER, CHULLIYODE POST OFFICE, MANJERI. BY ADV. SMT.D.P.RENU,CGC, RESPONDENT(S): APPLICANT ------------------------ SREEJITH P.M., S/O. GOPALAN NAIR, GRAMIN DAK SEVAK MAIL DELIVERER, CHULLIYODE POST OFFICE, MANJERI, RESIDING AT SREENILAYAM, CHULLIYODE P.O., POOKKOTTUMPADAM, MALAPPURAM DISTRICT. ADV. SMT. REKHA VASUDEVAN SMT.ANSU COTTAGIRI VARGHESE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.16217/10 PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE OA NO.71/09. EXT.P2: TRUE COPY OF THE REPLY FILED BY THE PETITIONER DATED 8.5.2009. EXT.P3: TRUE COPY OF THE ORDER IN OA 71/09 DATED 26.11.09. EXT.P4: TRUE COPY OF THE JUDGMENT IN W.P(C).17727/04 DATED 1.3.2005. RESPONDENT'S EXHIBITS: EXT.R1(a): TRUE COPY OF THE CHARGE REPORT ISSUED BYTHE 3RD PETITIONER. EXT.R1(b): TRUE COPY OF THE MEMO NO.MD/BO/CHULLIYODE DATED 14.9.06 ISSUED BY THE 3RD PETITIONER. EXT.R1(c): TRUE COPY OF THE MEMO NO.AC/GDS 2006-07 DATED 12.4.07 ISSUED BY THE 4TH PETITIONER. EXT.R1(d): TRUE COPY OF THE MEMO NO.DA/BO/49/2007 DATED 20.4.07 ISSUED BY THE 3RD PETITIONER. EXT.R1(e): TRUE COPY OF THE LIST PREPARED BY THE 4TH PETITIONER ON 26.8.05 FOR THE 1ST HALF PERIOD OF 2004-05. EXT.R1(f): TRUE COPY OF THE AMARAMBALAM GRAMA PANCHAYAT PROFESSIONAL TAX STATEMENT FOR THE PERIOD 1.10.2004 TO 31.3.2005. EXT.R1(g): TRUE COPY OF THE AMARAMBALAM GRAMA PANCHAYAT PROFESSIONAL TAX STATEMENT FRO THE PERIOD 1.4.2005 TO 30.9.2005. WPC.16217/10 EXT.R1(h): TRUE COPY OF THE AMARAMBALAM GRAMA PANCHAYAT PROFESSIONAL TAX STATEMENT FOR THE PERIOD 1.10.2005 TO 31.3.2006. EXT.R1(i): TRUE COPY OF THE AMARAMBALAM GRAMA PANCHAYAT PROFESSIONAL TAX STATEMENT FOR THE PERIOD 1.4.2006 TO 30.9.2006. EXT.R1(j): TRUE COPY OF THE AMARAMBALAM GRAMA PANCHAYAT PROFESSIONAL TAX STATEMENT FOR THE PERIOD 1.10.2006 TO 31.3.2007. EXT.R1(k): TRUE COPY OF THE AMARAMBALAM GRAMA PANCHAYAT PROFESSIONAL TAX STATEMENT FOR THE PERIOD 1.4.2007 TO 30.9.2007. /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------------------- W.P(C).16217 OF 2010 ------------------------------------------- Dated this the 19th day of July, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. 1.The respondent was appointed as Gramin Dak Sevak Mail Deliverer (GDS MD) of Chulliyode Post Office of Manjeri Sub Division in Malappuram District. The appointment order, which was Annexure A1 in O.A.297/07 (placed before us as Ext.R1(a) along with the counter affidavit of the respondent), shows that such office was made over to the respondent on 23.10.2002. Thereafter, on 14.9.2006, the Department issued a memo putting him in stop gap arrangement. He had with him Ext.R1(c) which showed that he was given an increment. With the aforesaid materials in hand, the respondent faced a situation where the establishment discontinued his service and filled up that office with another WPC.16217/10 2 temporary hand. He then moved the Central Administrative Tribunal, Ernakulam Bench by filing O.A.297/07. The Tribunal noted the aforesaid facts and proceeded further to hold that the applicant (respondent herein) assumed charge of the office on 23.10.2002 and continued till 14.9.2006 and earned increment with effect from 1.10.2003. Deprecating the action of showing him as a stop gap appointee, the Tribunal quoted its earlier order in O.A.764/06 as follows: “Time and again it has been brought to the notice of this Court that no orders are issued while making such appointments or arrangements as they are being termed, thereby leaving the arena open to interpretations, presumptions, surmises etc. from both sides, and the courts are burdened with the task of weighing the facts and circumstances in each case which also sometimes results in conflicting orders. We do not WPC.16217/10 3 understand the rationale of such a situation being perpetrated by the respondent department when there are clear Rules and instructions governing these posts of GDS and they are treated as civil posts, their service conditions being justiciable before the courts. We would direct the authorities to look into this matter and remedy the situation expeditiously in the interest of all the Government, the employees and the courts.” We are in complete agreement with the said view of the Tribunal in O.A.764/06. 2.Ultimately, O.A.297/07 was ordered by the Tribunal noticing that the applicant (respondent herein) was working in the post from 23.10.2002 till 20.4.2007 and from 14.9.2006, the appointment order was issued for 89 days and with a day's break, the incumbent continued in the post. Accordingly, it was concluded by the Tribunal that the action of the WPC.16217/10 4 establishment in discontinuing his service and filling up that post by another temporary hand is bad in law. That original application was accordingly disposed of by directing the establishment to make appointment on regular basis instead of engaging temporary hands. The establishment was directed to continue the applicant (respondent herein) in the post of GDS MD, Chulliyode Post Office till a regular selection and appointment is made to the post in accordance with the extant rules. 3.Thereafter, the establishment issued a notification for appointment of a GDS MD on provisional basis. The employee filed O.A.71/09 before the Tribunal, from which, this writ petition arose. He contended that in the light of the earlier decision of the Tribunal, his representation to treat him as eligible for regularisation ought to have been acted upon by the establishment in his favour. The Tribunal noted WPC.16217/10 5 its earlier order and also took note of a decision of the Division Bench of this Court in W.P(C).17727/04. 4.W.P(C).17727/04 was disposed of by this Court as per Ext.P4 judgment, elaborately considering and discussing the impact of different circulars having a bearing on the issue of regularisation and the different periods of officiation that would enable the incumbent to be considered for regularisation. In the light of that binding precedent, the Tribunal was, in our view, bound to apply the law laid in that judgment to the facts of the case. As already noted, the Tribunal had itself stated in O.A.297/07 that the applicant was continuing on a fairly long officiating period as provisional hand. With that, the Tribunal thought it fit to leave the matter for ultimate decision at the hands of the establishment because the establishment had also conceded before the Tribunal in O.A.71/09 that there was an error in WPC.16217/10 6 the notification and the intention was to invite applications for appointment on a regular basis and not on a provisional basis. Therefore, the Tribunal gave the establishment the liberty to issue a fresh notification, inviting applications for regular appointment. The Tribunal also directed the establishment to consider the case of the applicant (respondent herein) to any preferential claim that he may have on the strength of his provisional service, having regard to the directions in O.A.297/07 and the law laid by this Court in Ext.P4 judgment. 5.With the aforesaid, we note that the apprehension of the establishment is as to whether the paragraph from Ext.P4 judgment, included in paragraph 5 of the impugned order of the Tribunal, would apply on all fours to the case of the applicant. The law has been categorically laid down in Ext.P4. The interpretation and application of the different WPC.16217/10 7 circulars of the department have been dealt with by this Court. The applicability of the law so laid vis.a.vis. the particular facts of the employee whose case was considered in Ext.P4 judgment may sometimes be slightly different from the particulars regarding the service of the applicant in the case in hand (respondent herein). Therefore, all that has to be clarified is that, while giving effect to Ext.P4 judgment in compliance of Ext.P3 direction of the Tribunal, the establishment would take the law as laid by this Court in Ext.P4 judgment and apply it to the service particulars of the applicant. This will do complete justice between the parties, particularly when the applicant is stated to have now become over-aged for direct recruitment and is eligible for priority in terms of the circulars. We add that we do not express anything finally on the result that would be achieved by the application of Ext.P4 judgment on the service particulars of WPC.16217/10 8 the applicant (respondent herein) though we have noted above the salient features of his service. With the aforesaid clarification, we order this writ petition enabling the establishment to proceed with the matter without delay. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.20/07.