IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 23RD DECEMBER 2009 / 2ND POUSHA 1931 WP(C).No. 32491 of 2009(S) --------------------------------------- OA.316/2008 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS/RESPONDENTS 1 & 2: --------------------------------------------------- 1. SR. SUPERINTENDENT OF POST OFFICES, ALUVA DIVISION, ALUVA. 2. UNION OF INDIA, REP. BY CHIEF POSTMASTER GENERAL, KERALA CIRCLE, THIRUVANANTHAPURAM. BY ADV. MR.S.KRISHNAMOORTHY, CGC RESPONDENTS/APPLICANT & 3RD RESPONDENTS: -------------------------------------------------------------------------- 1. K.P. ASOKUKUMAR, S/O.PARAMESWARAN NAIR, AGED 42 YEARS, WORKING AS GROUP D (TEMPORARY STATUS), ALUVA HEAD POST OFFICE, ALUVA DIVISION, RESIDING AT KOVATTU HOUSE, THURUTHU, ALUVA. 2. SRI.P.O. PAULOSE, GROUP-D, KALADY P.O., KALADY, ALUVA DIVISION, ALUVA. R1 BY ADV. MR.M.A.SHAFIK. R2 BY MR.O.V.RADHAKRISHNAN, SENIOR ADVOCATE, ADV. SMT.REKHA VASUDEVAN , MR.K.RAMACHANDRAN (THYKOODAM). THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/12/2009, ALONG WITH WPC NO. 28574 OF 2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 32491/2009-S APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE OA.NO.316/2008 FILED BY K.P.ASOKKUMAR. EXT.P2: COPY OF THE REPLY STATEMENT FILED BY RESPONDENTS IN OA NO.316 OF 2008. EXT.P3: COPY OF THE REJOINDER FILED BY THE RESPONDENT/APPLICANT. EXT.P4: COPY OF THE ADDL. REPLY STATEMENT FILED IN OA.NO.316/2008. EXT.P5: COPY OF THE ORDER DATED 13/02/2009 OF CAT ERNAKULAM IN OA NO.316 OF 2008. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. KURIAN JOSEPH & C.T.RAVIKUMAR, JJ. --------------------------------------------------------------------- W.P(C) Nos.32491, 30674, 31997, 32241, 34140, 35172, 34681, 34867, 33386, 33385, 34512, 32001, 30348, 31178 , 34457, 34988, 34269, 33971, 34021, 33691, 33584, 33161, 32978, 33155, 33162, 32756, 32779, 32090, 31572, 31290, 31148, 30307, 31010, 31053, 28574, 35285, 35255, 35386 & 36556 of 2009 ------------------------------------------------------------ Dated this the 23rd day of December,2009 JUDGMENT Kurian Joseph.J The issue raised in all these cases pertains to the appointment to the Group D Post Sl.No.1 Column No.1. under the Schedule to the Department of Posts (Group D Posts) Recruitment Rules 2002. Rule 4 prescribes the method of recruitment. The procedure is prescribed in the Schedule, in Column No.5 to 14 of the Schedule. Sl.No.1 of Column No.1 of the Schedule deals with the following posts :- Peons/Letter box peons/Packer porter/Runner/Van peon/Orderly/Gate W.P(C) No.32491 of 2009 and connected cases :: 2 :: men/Attendant-cum-Khansama/Cleaner in Mail Motor Service/Pump men. 2. The method of recruitment under Column No.11 reads as follows: “ The method of recruitment shall be in the manner specified below, namely:- A test shall be held to determine the working eligibility of the candidates holding the post specified against Sl.No.2 for filling up the posts. In case the suitable candidates are not found to fill up the posts by such test, the remaining posts shall be filled up by the method as specified below Sl.No.2, column No.1 consists of the following posts:- “Chawkidar/Watchman/Safaiwala/Scavenger/ Gardner/ Mali Waterman/ Bhisti/ Mazdoor / Hamal/Cleaner/Rest House Attendant/Battery men/Ayaha (Lady Attendant)/Mechanical Workmen / By hand Peon / Lascars”. 3. All the applications before the Tribunal belong to either 75% or 25% referred to W.P(C) No.32491 of 2009 and connected cases :: 3 :: in column No.11 extracted above belonging to GDS of the recruiting division or unit or the neighbouring division or unit or the casual labourers. 4. The plain reading of the rules unambiguously shows that the question of consideration of such GDS/Casual Labourers arise only when there are vacancies left unfilled from among the Sl.No.2 under Column No.1: “Chawkidar/Watchman / Safaiwala / Scavenger / Gardner/ Mali Waterman/ Bhisti/ Mazdoor/ Hamal/ Cleaner/ Rest House Attendant/Battery men/Ayaha (Lady Attendant)/Mechanical Workmen/By hand Peon/Lascars”. Admittedly no test has been conducted so far after the introduction of the rules. Admittedly there are vacancies remaining unfilled from 2002 onwards. Though the learned Central Government Counsel attempted to advance an argument on the basis of Office Memorandum dated 16.5.2001 that the vacancies remaining W.P(C) No.32491 of 2009 and connected cases :: 4 :: unfilled in a particular year would vanish by the end of the year, the contention has no basis. The records made available to us would show that there has never been abolition of posts in Group D cadre and re fixation of cadre strength. A perusal of the Office Memorandum dated 16.5.2001 would show that the same pertains only to direct recruitment. The very subject matter of Office Memorandum reads as follows: “Optimisation of direct recruitment to civilian posts”. Paragraph 3 of the Office Memorandum also reads as follows; “The other modes of recruitment (including that of promotion) prescribed in the Recruitment Rules/Service Rules would, however, continue to be adhered to as per the provisions of the notified Recruitment Rules/Service Rules.” The abolition is thus only in respect of posts W.P(C) No.32491 of 2009 and connected cases :: 5 :: to be filled up by direct recruitment. There is also no basis for the contention of the learned Central Government Standing Counsel that only the vacancies cleared by the Screening Committee can be filled up even in the matter of promotion. This court has already held in the judgment dated 22.3.2007 in W.P.(C0No.22818/06 that no clearance from the screening committee is required for filling up the posts by direct recruitment. 5. The records also show that the Department requires their service and the vacancies after the introduction of the Rules 2002 still remain unfilled. Thus the vacancies unfilled in a particular year are to be carried forward to the subsequent years, since vacancies are not of a year but in the Group D Cadre. 6. The learned Senior counsel and other counsel appearing for the respondents submit that under Sl.No.2 Column No.1 persons W.P(C) No.32491 of 2009 and connected cases :: 6 :: (Chawkidar / Watchman / Safaiwala / Scavenger / Gardner / Mali Waterman / Bhisti / Mazdoor / Hamal / Cleaner / Rest House Attendant / Battery men / Ayaha (Lady Attendant) / Mechanical Workmen / By hand Peon / Lascars) are not available for appearing in the test. If that be so, there is no purpose in conducting a test and all the vacancies remained unfilled after the introduction of the rules in Sl.No.1 of Column No.1, Group D Post should go to the categories of GDS / Casual Labours in the percentage of 75 and 25. 7. Therefore all the writ petitions are disposed with the following directions: 1. In case employees belonging to Sl.No.2 under Column No.1 (Chawkidar/ Watchman / Safaiwala / Scavenger / Gardner / Mali Waterman / Bhisti / Mazdoor / Hamal / Cleaner / Rest House Attendant / Batterymen / Ayaha (Lady Attendant) / Mechanical Workmen / By hand Peon / Lascars) are not available in a W.P(C) No.32491 of 2009 and connected cases :: 7 :: division as qualified to appear in the test for appointment to the Group D Post of Sl.No.1 of Column No.1 ( Peons/Letter box peons/Packer porter/ Runner/ Van peon / Orderly/ Gate men/ Attendant-cum-Khansama/Cleaner in Mail Motor Service/ Pump men), such vacancies shall be filled immediately in the 75% - 25%. It is made clear that being an appointment in the division the available candidates for test shall be determined only with respect to the division concerned. However while considering the appointment in the GDS category, it is open to the department to consider other eligible candidates in neighbouring Division / Unit in case of non availability of candidates/ members belonging in the Division. 2. In case there is any employee available in Sl.No.2 of Column No.1 (Chawkidar / Watchman / Safaiwala / Scavenger / Gardner / Mali Waterman / Bhisti / Mazdoor / Hamal / Cleaner / Rest House Attendant / Batterymen / Ayaha W.P(C) No.32491 of 2009 and connected cases :: 8 :: (Lady Attendant) / Mechanical Workmen / By hand Peon / Lascars) for appointment to Sl.No.1 post ( Peons/Letter box peons/Packer porter/ Runner/ Van peon / Orderly/ Gatemen/Attendant-cum -Khansama/ Cleaner in Mail Motor Service/ Pump men) in the year concerned, the department shall conduct a test to decide the eligibility in respect of the vacancies in each year. In order to avoid any confusion, it is made clear that in the test for the year 2002 the participation shall be based on the eligibility and availability and qualification of candidates as on the date of occurrence of the vacancies of that year. Such process shall be repeated in respect of each year, depending on the availability of vacancies . This process shall be completed within one month. 3. But in case it is found that no candidate has become eligible in the test for being appointed to Sl.No.1 of Column No.1 post (Peons/Letter box peons/Packer porter/ Runner/ Van peon / Orderly/ W.P(C) No.32491 of 2009 and connected cases :: 9 :: Gate men/ Attendant-cum-Khansama/ Cleaner in Mail Motor Service/ Pump men) such vacancies in each year shall be filed up from among the eligible GDS casual labourers available for appointment in that particular year. This process shall be completed within another two weeks. 4. In case, in the above process vacancies arise in Sl.No.2 under Column No.1(Chawkidar/Watchman/ Safaiwala/ Scavenger/ Gardner/Mali Waterman /Bhisti / Mazdoor/ Hamal/ Cleaner/ Rest House Attendant / Batterymen/Ayaha (Lady Attendant)/ Mechanical Workmen / By hand Peon / Lascars) those vacancies shall be filled in accordance with the recruitment rules as per the method prescribed in Serial No.2 under Column No.11. The above process shall be completed with another four weeks, except in the case of Employment Exchange Candidates. In the case of Employment Exchange hands, steps shall be taken to get the list from the Employment Exchange, without delay. W.P(C) No.32491 of 2009 and connected cases :: 10 :: In view of the Division bench decision of this court dated 22.3.2007 in W.P.(C). No.22818 of 2006, it is made clear that no clearance from the screening committee is required for filling up vacancies as above. Sd/- (KURIAN JOSEPH) JUDGE Sd/- (C.T.RAVIKUMAR) JUDGE ssn/sk //true copy//