1 aswp-2691-10 & 22 ors. Pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2691 OF 2010 Union of India and ors. .. Petitioners Vs. Shri Gonvind Raghunath Mathkar .. Respondent WITH WRIT PETITION NO. 2694 OF 2010 Union of India and ors. .. Petitioners Vs. Sakharam Shikvaram Aswalkar .. Respondent WITH WRIT PETITION NO. 2695 OF 2010 Union of India and ors. .. Petitioners Vs. Vithal Vasant Adkar Group D. .. Respondent WITH WRIT PETITION NO. 2696 OF 2010 2 aswp-2691-10 & 22 ors. Union of India and ors. .. Petitioners Vs. Vasudeo Sakharam Tulaskar .. Respondent WITH WRIT PETITION NO. 2716 OF 2010 Union of India and ors. .. Petitioners Vs. Surendra Ganesh Apte .. Respondent WITH WRIT PETITION NO. 2717 OF 2010 Union of India and ors. .. Petitioners Vs. Atmaram Pandurang Naik Group D. .. Respondent WITH WRIT PETITION NO. 2797 OF 2010 Union of India and ors. .. Petitioners Vs. Uddesh Ladu Korgaonkar .. Respondent WITH WRIT PETITION NO. 2838 OF 2010 Union of India and ors. .. Petitioners Vs. 3 aswp-2691-10 & 22 ors. Laxman Keshav Sawant .. Respondent WITH WRIT PETITION NO. 2839 OF 2010 Union of India and ors. .. Petitioners Vs. Maheshwar Ramchandra Sawant .. Respondent WITH WRIT PETITION NO. 2843 OF 2010 Union of India and ors. .. Petitioners Vs. Pradip Anant Ghadi .. Respondent WITH WRIT PETITION NO. 2844 OF 2010 Union of India and ors. .. Petitioners Vs. Rajendra Dayal Achrekar .. Respondent WITH WRIT PETITION NO. 2862 OF 2010 Union of India and ors. .. Petitioners Vs. 4 aswp-2691-10 & 22 ors. Ganesh Rama Narvekar .. Respondent WITH WRIT PETITION NO. 2864 OF 2010 Union of India and ors. .. Petitioners Vs. Satyawan Balkrishna Dalvi .. Respondent WITH WRIT PETITION NO. 2907 OF 2010 Union of India and ors. .. Petitioners Vs. Dilip Manohar Vilkar .. Respondent WITH WRIT PETITION NO. 2909 OF 2010 Union of India and ors. .. Petitioners Vs. Dinesh Shamsundar Dalvi .. Respondent WITH WRIT PETITION NO. 2955 OF 2010 Union of India and ors. .. Petitioners Vs. Ganpat Dhondu Naik .. Respondent 5 aswp-2691-10 & 22 ors. WITH WRIT PETITION NO. 2960 OF 2010 Union of India and ors. .. Petitioners Vs. Ravikant Narayan Lingayat .. Respondent WITH WRIT PETITION NO. 3028 OF 2010 Union of India and ors. .. Petitioners Vs. Mahadeo Tukaram Waradkar .. Respondent WITH WRIT PETITION NO. 3029 OF 2010 Union of India and ors. . . Petitioners Vs. Sunil Vasant Ghadi .. Respondent WITH WRIT PETITION NO. 3040 OF 2010 Union of India and ors. .. Petitioners Vs. 6 aswp-2691-10 & 22 ors. Santosh Dattaram Gawas .. Respondent WITH WRIT PETITION NO. 3041 OF 2010 Union of India and ors. .. Petitioners Vs. Chandrashekhar Ramchandra Bhambure .. Respondent WITH WRIT PETITION NO. 3042 OF 2010 Union of India an dors. .. Petitioners Vs. Prakash Shripad Desai .. Respondent WITH WRIT PETITION NO. 3100 OF 2010 Union of India and ors. .. Petitioners Vs. Dhondi Suryakant Sawant .. Respondent Mr. S. S. Kanetkar for petitioners in all the matters. Mr. M.S. Karnik with Mr. S.P. Inamdar for respondent in all the matters. 7 aswp-2691-10 & 22 ors. CORAM: B. H. MARLAPALLE & SMT. NISHITA MHATRE JJ. AUGUST 24, 2011. ORDER (PER B. H. MARLAPALLE,J.): 1. This group of petitions has been filed by the Union of India through the Chief Post Master General, Mumbai, challenging the common judgment and order dated 25/6/2009, by which 23 Original Applications filed by the individual respondents came to be allowed. The brief facts relevant are stated as under. 2. The original applicants were initially appointed as Gramin Dak Sevak (GDS) under the Sindhudurg Division, Malwan, between the years 1983 to 1996. A notification came to be issued by the present petitioners on 3/4/2002 for filling up the posts of Postman in 25% quota meant to be filled in on merit through the Limited Departmental Competitive Examination (LDCE). However, number of posts, which were to be filled in, was not declared in the said notification. The GDS like the applicants responded to the said notification and the written test was fixed on 9/6/2002, but it was adjourned and ultimately held on 24/11/2002. 8 aswp-2691-10 & 22 ors. 122 applicants appeared for the written test and the results were published on 4/12/2003 read with Corrigendum dated 8/12/2003. The written examination was of three papers, carrying 50 marks each. On 4/12/2003, 36 candidates were declared successful on the yardstick of the qualifying percentage of 45% in each paper. They were not issued any formal promotion order, despite their representations. The selected candidates were called upon to furnish their willingness for being considered to be promoted to the post available in other divisions and such a willingness was furnished by the applicants. 3. On 15/3/2005, a fresh notification came to be published re- advertising the very same posts of Postman. On 10/4/2005 written examination was held. Subsequently by an order dated 16/1/2006 the results of the written examination held on 24/11/2002 and the merit list published on 4/12/2003 along with Corrigendum dated 8/12/2003 came to be cancelled on the ground that there was no available vacancy in the Sindhudurg Division in the year 2002. First notification dated 3/4/2002 was issued for filling up the posts under 25% of the quota, through LDCE. 24 of the 36 successful candidates in the first selection approached the Tribunal in O.A. Nos. 5 to 27 of 2006 and challenged the second 9 aswp-2691-10 & 22 ors. notification dated 15//3/2005. Following reliefs were prayed for in the said group of applications:- (i) That this Hon’ble Tribunal will be pleased to call for the records and proceedings leading to the non-issue of the appointment in the Postman cadre or non-allotment order of the applicants to other Divisions and after going through the legality or otherwise, will direct the respondents either to appoint the applicants in the Sindhudurg Division or allot them to the Divisions, where the vacancies exist or where vacancies are likely to occur. (ii) This Hon’ble Tribunal will be pleased to direct the respondents to appoint the applicant as Postman on priority basis and unless and until the candidates who are declared passed and selected in the Postman examination held on 24/11/2002, the candidates passing in the subsequent examination held on 10/4/2005 should not be appointed. (iii) This Hon’ble Tribunal will please to direct the respondents that the applicants who had passed and were selected in the examination held on 24/11/2002 have right for appointment on priority basis over the candidates selected in the subsequent examination. (iv) This Hon’ble Tribunal will be pleased to direct the 10 aswp-2691-10 & 22 ors. respondents to treat the applicants having passed and selected in the examination held on 24/11/2002 and applicants have a right for appointment in the Postman cadre till then they may be offered an appointment in the Group “D” cadre. (v) That this Hon’ble Tribunal will be pleased to call for the records and files of the case from the CPMG, Mumbai, PMG, Goa and the SPOs, Sindhudurg Division Malavan and see the circumstances u nder which this impugned order the Memo No. B-II/Postman Exam/0305-06 dated at Malvan the 16/1/2006, intimating him that the Memo No.B-II/Postman Exam/03 dated 4/12/2003, furnishing the list of surplus qualified candidates in Postman exam, held on 24/11/2002 in Sindhudurg Division and subsequent corrigendum dated 8/12/2003 and 22/12/2003, issued are cancelled by the SPOs Sindhudurg Division. The same may be quashed and set aside with appropriate directions to the respondents to revive the panel and the applicant be given appointment. 4. During the pendency of the applications, one applicant died and thus out of 24 original applicants, only 23 remained. After hearing the parties by a common order dated 9/3/2007 the Tribunal allowed the applications. This order came to be challenged in Writ Petition No. 1580 of 2008 and other 22 writ petitions and a Division Bench of this court 11 aswp-2691-10 & 22 ors. allowed the petitions partly in terms of the following order:- “ It is common ground before us that one of the contentions urged on behalf of the petitioners before the Central Administrative Tribunal was that the appointments could not be made though advertisement was published because there were no vacancies. It is also common ground that the said defence has been referred to by the Tribunal in paragraph 5 of its order. It is also common ground that the Tribunal in its order has not considered this aspect of the matter at all. Therefore, by consent of the parties, the common order passed by the Central Administrative Tribunal impugned in these petitions is set aside, all the original applications are remitted back to the Central Administrative Tribunal for de novo consideration, hearing and decision in accordance with law. As the matters are pending for quite some time, the Central Administrative Tribunal shall decide original applications as expeditiously as possible and in any case within a period of three months from the date of receipt of writ of this order. Rule is made absolute accordingly with no order as to costs. 5. The Tribunal in the second round and in compliance of the order passed by this Court, considered all the Original Applications on remand, after hearing all the parties concerned and by the impugned order 12 aswp-2691-10 & 22 ors. allowed all the 23 applications and para 17 of the impugned order reads as under:- “17. In view of the above discussion, these O.As. deserve to be allowed with a direction to the respondents to reconsider the whole matter in the light of the observations made herein above and consider the claim of the applicants for appointment to the post of Postman preferably in Sindhudurg Division or in any other Division in Goa Region. If not so possible due to dearth of vacancies, the respondents should endeavor to appoint and post the applicants to adjoining Regions, including Bombay Region, where alone more than 700 vacancies of Postmen are stated to be in the process of being filled up. In any case, inadequacy of existing vacancies should not jeopardise the prospect of any of the applicants. In accordance with the habitual procedure adopted by the respondents, the applicants’ case should be considered against existing as well as future vacancies. The cancellation of the results and the examination as per impugned order dated 16/1/2006 is, therefore, quashed and set aside in so far as it prejudicial to the applicants herein.” 6. Mr. Kanetkar, the learned counsel for the petitioners, submitted that the impugned order suffers from errors apparent on the face of the record, it is contrary to law and in any case even if the applicants 13 aswp-2691-10 & 22 ors. were selected in the first round as well as the second round, in the absence of vacancies of Postman, they could not claim a vested right for appointment. He further submitted that when the first notification was issued on 3/4/2002, there were no vacancies and consequently the applicants did not have a legal claim to challenge the subsequent notification dated 15/3/2005 as well as the order dated 16/1/2006. He also urged that the applicants had appeared in the subsequent examination held on 10/4/2005 for the post of Postman/Mail Guard and, therefore, by their own behaviour they had accepted that they had no claim pursuant to the first notification despite the fact that they were amongst the successful candidates, as there were no existing posts. It was also submitted that the unfilled vacancies are to be filled by considering the merit of the surplus candidates of the Region as a whole and to be restricted to the number of vacancies unfilled for the concerned recruitment year only. There is no provision for waiting list and in view of the non-availability of the vacancies, the surplus qualified candidates were not allotted to any of the divisions of the Region concerned. The Tribunal failed to consider that second notification dated 8/3/2005 was not for holding the same examination afresh, but it was to fill the vacancies of the year 2003 and 2004. It was also urged that the Tribunal erred in holding that the second 14 aswp-2691-10 & 22 ors. notification dated 8/3/2005 was to fill in the vacancies caused or available for the years 2000, 2001 or 2002 and that the vacancies which were available in other divisions in Goa Region could not be made available to the applicants. Reliance placed on the decision of the Lucknow Bench of the Tribunal in the case of Naumi Lal Yadav and ors. vs. Union of India and ors. [2001 (2) ATJ 430] was misplaced, as per the learned counsel for the petitioners. 7. After the O.As. were remanded for fresh decision, by an order dated 29/9/2008, the Tribunal directed the present petitioners to file an affidavit. These directions read as under :- “(i) The respondents to file affidavit giving clear position of the total sanctioned strength in the cadre of Postman in Sindhudurg Division. (ii) Since the applicants appeared in the quota meant for 25% for the EDS on the basis of limited departmental competitive examination, the respondents are also directed to give the exact number of vacancies available in the 25% quota meant for the category of applicants as on the date of advertisement. (iii) It is noted from the advertisement that in Class III the 15 aswp-2691-10 & 22 ors. respondents have sought the candidates’ willingness to work anywhere in Goa Region in case they passed the examination. In the circumstances, the respondents are also directed to give exact sanctioned strength of Postmen for the whole Goa Region as on the date of advertisement dated 3/4/2002. (iv) In addition, the official records pertaining to the advertisement dated 3/4/2002 and the examination conducted thereon may also be produced in original. Let this affidavit be filed within a period of three weeks with an advance copy to the learned counsel for applicants who may file his reaction within one week thereafter.” Accordingly, an affidavit was filed on 5/12/2008 along with six annexures. The applicants filed additional affidavit and also written arguments. There was no dispute that all the 23 applicants were appointed as GDS and they had appeared for the written examination held on 24/11/2002 and were found successful amongst the total of 36 candidates. In the affidavits filed by the petitioners, it was stated that the list of the successful candidates was sent to other divisions wherever there was a shortfall on the directions issued by the Regional Office, Goa, Panjim, though the applicants were not given any formal promotion or appointment order in the vacancies accruing in the subsequent years. 16 aswp-2691-10 & 22 ors. 8. The recruitment/promotion to the post of Postman/Mail Guard is governed by the statutory Recruitment Rules issued by the Department of Posts under the Order No. 44-21/87-SPB-I dated 6/7/1989 and the Order No. 44-29/94-SPB-I dated 30/1/1995. In addition, various administrative instructions were also issued from time to time. As per the Rules/Instructions, 50% of the vacancies of Postman/Mail Guard are to be filled up by promotion of Group “D” officials in the department who qualify a written test conducted for the purpose. The remaining 50% of the vacancies are to be filled up as follows:- “(a) Half of the vacancies will be filled up by selection of Gramin Dak Sevaks who have completed a minimum of three years service and who are below 50 years of age and on the basis of seniority-cum-fitness subject to qualifying the prescribed test. (b) The remaining half will be filled up by GDS having 5 years or more service and are within the prescribed age limit and who come out meritorious in the examination. The examination will be common for both, the Group “D” officials and the GDS officials. In case no Group “D” officials qualify in the examination to the extent of vacancies announced for them, the unfilled vacancies in their quota will also be offered to the Gramin Dak Sevaks on the basis of merit 17 aswp-2691-10 & 22 ors. in the competitive examination.” 9. The Tribunal held that the notification dated 3/4/2002 for recruitment to the post of Postman was in consonance with the statutory Recruitment Rules and there was no deviation whatsoever. Consequently, the written examination held on 24/11/2002 was according to the Rules and so was the case of the list of 36 successful candidates declared. It also noted that as per the Rules, if sufficient number of GDS are not recruited from a Division due to non-availability of suitable candidates etc. from a particular Division, the vacancies in that Division would be thrown open to the GDS officials of all the other Divisions in the Region. The Tribunal repelled the contentions of the petitioners that the applicants, despite having passed the examination in question, could not be offered appointment to the post of Postman/Mail Guard because there were no vacancies. It further held that the number of vacancies was not mentioned in the advertisement was immaterial/inconsequential. While recording this finding, the Tribunal referred to the second notification dated 18/3/2005 in which it was mentioned as under:- “There being no vacancies in this Division, the selected candidates in the examination, will be considered according to 18 aswp-2691-10 & 22 ors. their selection, for the Divisions in the Goa Region. And the result will not be declared as per orders of the Circle Office and no further correspondence was made in this regard. This may be noted.” Thus, the second notification dated 18/3/2005 for the fresh examination was also released when there were no vacancies in the division concerned i.e. Sindhudurg. The Tribunal also noted that candidates were appointed by the petitioners as Postmen pursuant to the second selection despite the notification states that there were no vacancies and it was a practice followed to issue a notification stating that there were no vacancies. Along with the affidavit-in-reply dated 5/12/2008, the petitioners themselves had annexed a letter dated 5/12/2006 issued by one Mr. V.V.R. Murthy, PIO and Assistant Postal Service, Goa Region, Panaji. This letter indicated that there were 71 vacancies of Postmen available in the year 2002 in the Goa, Sangli, Kolhapur and Ratnagiri Divisions and only 54 of those were filled up, though there were no vacancies in the Sindhudurg Division. Thus, there were 17 vacancies available in Goa, Sangli, Kolhapur and Ratnagiri Divisions in the year 2002 and admittedly all the applicants were asked to give their option to serve in any other division other than Sindhudurg Division of their selection. Such options 19 aswp-2691-10 & 22 ors. were submitted in writing and despite the same, no order was issued. The Tribunal, on the issue of advertisement being issued in the absence of vacancies referred to a Co-ordinate Bench decision (Lucknow Bench) in the case of Naumi Lal Yadav (Supra) and held that the postal authorities were consistently following a practice of releasing an advertisement for filling in the post of Postman/Mail Guard without specifying the number of vacancies available and on completion of the selection process, the selected candidates were being at the first instance offered promotion/appointment in the same Region and in case there were no vacancies in that Region, they were being offered such promotion/appointment in the neighbouring Region (Regional level) of all the divisions. We do not find any fault with the said conclusions drawn by the Tribunal. In para 10 of the impugned order, the Tribunal noted thus, after referring to the judgment in the case of Naumi Lal Yadav, “10. From the above said it is crystal clear that respondents are holding the examination from amongst eligible and qualified Gramin Dak Sevaks in advance for future exigencies even if there ware no vacancies at the time of issuance of notification for holding the exam for selecting aspirants for the post of Postman. Pertinently, the selected candidates are also 20 aswp-2691-10 & 22 ors. adjusted against the vacancies of other Divisions in the same region or even outside the region itself. In the present case, admittedly, a number of surplus candidates from Goa Region were sent on a few occasions to join in Bombay Region even after the applicants had passed the examination in question.” These factual findings of the Tribunal have not been questioned before us and no justification has been placed on record to support the inaction in not issuing promotion orders at least against the 17 available vacancies in the other four divisions, other than the Sindhudurg Division. Hence, the issue of available vacancies or no vacancies, for which the applications were remanded by this Court, has been adjudicated upon by the Tribunal on appreciation of the additional affidavits and these findings do not suffer from any infirmities so as to call for interference under the supervisory powers of judicial review under Articles 226 and 227 of the Constitution of India. 10. On the issue of vested right of the applicants, the Tribunal noted that as per the Recruitment Rules to the postman cadre if sufficient number of GDS are not recruited from a Division, due to non-availability of suitable candidates etc. from a particular division, the vacancies in that 21 aswp-2691-10 & 22 ors. division will be thrown open to GDS officials of all the other divisions in the same Region. Selection of candidates from the successful candidates will be made only for the number of vacancies announced with respective break down (i) on the basis of length of service and (ii) merit, in respect of vacancies announced for these two batches of the outsiders quota. After absorbing the required number of candidates as per announced vacacnies in respective divisions, the Divisional Superintendent will send the statement of marks of the remaining qualified GDS (marks of those GDS who have secured the minimum percentage required for qualifying in all the papers of the examination) who could not be accommodated in the division, to the Regional Office indicating therein the choice of Divisions preferred by the respective GDS in his application. Thereupon, the Regional Office will allot the candidates on the basis of merit in the examination to the divisions in the whole Region where there are unfilled vacancies on account of non- availability of sufficient number of GDS. Hence, non-availability of the post could not be a ground for cancellation of the earlier examination and the non-availability of post in a particular division does not matter as the successful candidates are offered the posts in the other divisions or in the neighbouring Region, stated the Tribunal. 22 aswp-2691-10 & 22 ors. 11. In the case of R.S. Mittal vs. Union of India [1995 Supp (2) SCC 230], the Supreme Court held that though a person on select list has no vested right to be appointed to the post for which he has been selected, but he has a right to be considered for such an appointment and the appointing authority cannot ignore the select panel or decline to make a panel on its own whims and fancies. It further held that if a person has been selected by the Selection Board, there has to be justifiable reason to decline appointment to such a person. The Tribunal also relied upon the following two earlier decisions of the Supreme Court:- (i) Prem Prakash vs. Union of India and ors. [AIR 1984 SC 1831]. (ii) Govindaraju vs. KSRTC and anr. [AIR 1986 SC 1680]. In the case of Prem Prakash (Supra), the Supreme Court held, “If selected candidates are available from the previous list, there should be no further recruitment until the selected candidates are absorbed or, in the alternative the vacancies which are declared for the subsequent years should take into 23 aswp-2691-10 & 22 ors. account the number of persons who are already in the list of selected candidates and who are still awaiting appointment. There should be no limit to the period of validity of the list of selected candidates