IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 20TH DAY OF DECEMBER 2011/29TH AGRAHAYANA 1933 WP(C).No. 36443 of 2007 (Z) --------------------------- OA.858/2006 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH. ................. PETITIONER(S): ------------------------ 1. CHIEF POSTMASTER GENERAL, KERALA CIRCLE, THIRUVANANTHAPURAM-695 033. 2. POSTMASTER GENERAL, CENTRAL REGION, KOCHI-682 018. 3. SUPERINTENDENT OF POST OFFICES, IRINJALAKUDA DIVISION, IRINJALAKUDA-680 121. 4. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF COMMUNICATIONS DEPARTMENT OF POSTS, NEW DELHI-110 001. BY ADV. SRI.P.PARAMESWARAN NAIR, ASST. SG. OF INDIA. RESPONDENT(S): -------------------------- 1. V. MANJUSHA, D/O. LATE K.GANGADHARAN, GDS BRANCH POSTMASTER, ARATTUPUZHA BO, URAKAM S.O.-680 562, RESIDING AT KIZHUVEETTIL HOUSE, ARATTUPUZHA, IRINJALAKUDA. 2. K.M.THOMAS, S/O. LATE K.D.MATHAI, GDS MAIL DELIVERER, IRINJALAKUDA POSTAL DIVISION, RESIDING AT KARUKUTTIKARAN HOUSE, P.O.THUMBUR-680 662. 3. P.P.VANAJAKUMARI, POSTMAN, KODUNGALLUR, IRINJALAKUDA DIVISION-680 664. WP(C).No. 36443 of 2007 (Z) 4. K.P. SMITHA, POSTMAN, KARUPADANNA, IRINJALAKUDA POSTAL DIVISION-680 670. R1 & R2 BY SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE. ADVS. SMT.K.RADHAMANI AMMA, SRI.ANTONY MUKKATH, SRI.NIKHIL S.KUMAR. R3 BY ADV. SRI.P.C.SEBASTIAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-12-2011, ALONG WITH W.P.(C) NO. 7188 OF 2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. WP(C).No. 36443 of 2007 (Z) APPENDIX PETITIONER'S EXHIBITS:- EXT.P1 COPY OF THE O.A. NO.858/2006 ALONG WITH ANNEXURES. EXT.P2 COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS HEREIN THE ABOVE OA DATED 19/04/2007. EXT.P3 COPY OF THE ORDER PASSED BY HON'BLE TRIBUNAL IN O.A.807/1999 AND 1286/1997 DATED 21/03/2000. EXT.P4 COPY OF THE ORDER DATED 18/07/2007 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL IN O.A. NO.858/2006. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs. C.R. Manjula Chellur, Ag. C.J. & P.R.Ramachandra Menon, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.36443 OF 2007, O.P.(CAT) No.200 OF 2010, W.P.(C) 7188 & 22342 OF 2010, O.P(CAT)Nos.1095, 1099, 1228, 1501, 1638, 1696 & 1754 OF 2011. - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of December, 2011 JUDGMENT Manjula Chellur, Ag. C.J. W.P.(C) No.36443/2007(S) The petitioner is the Postal Department in all the petitions. Respondents 1, 2, 3 and 6 were petitioners in O.A.No.858 of 2006 before the Central Administrative Tribunal, Ernakulam (for short 'CAT') and respondents 1 and 2 herein were the applicants before the CAT and respondents 3 and 4 were private respondents 4 and 5 in the Original Applications. 2. The applicants before CAT were working as Gramin Dak Sevak Branch Post Master, Arattupuzha and Gramin Dak Sevak Mail Deliverer, Puthanchira respectively under the postal division of Irinjalakkuda. When the second respondent therein notified examination for promotion/recruitment to the cadre of Postman/Mail Guard, respondents 1 and 2 herein had applied and appeared for the examination. On seeing the recruitment W.P.(C) No.36443 of 2007 and conn. cases. -:2:- process in the notification issued, after verifying vacancy position to the above said posts and the date of examination, the applicants had applied for communication of the marks obtained by them. They were not selected as informed, as they were less meritorious than the selected candidates against two vacancies. Hence they approached CAT in O.A.No.858 of 2006. 3. Before the CAT, the challenge was, the department was not legally competent under the recruitment rules to fill up the vacancies notified, as reserved under merit quota, from OBC candidates who secured lesser marks than the applicants. They also sought for a direction to adhere to the order of merit indicated in the rank list and appoint the applicants to the post of Postman with retrospective date with all the consequential benefits. The CAT allowed application No. 858 of 2006 and the present appeal is filed aggrieved by the order of the CAT. O.P(CAT) 200/2010: 4. This is directed against the orders of CAT in O.A.No.615 of 2009. This petition was by the Postal Department aggrieved by the orders of the CAT dated 24.06.2010. The W.P.(C) No.36443 of 2007 and conn. cases. -:3:- respondents herein were the applicants working as Gramin Dak Sevak (for short GDS). According to the applicants, the posting of GDS to the post of Postman is a promotional post from GDS. But, according to the Department, it was a class by itself and a feeder category to the post of Postman from GDS. According to them, the GDS has to participate in the departmental examination as an 'outsider' as if it is a direct recruitment, provided he has not crossed the age of 50 years. In other words, according to the Department, in view of the age restriction, the applicant/s was/were not entitled to compete for the said departmental examination on account of age bar. The CAT ultimately, after hearing both the parties held, it was a promotion on the basis of seniority and it is a promotional post from GDS, therefore, the age bar does not apply and the action of the department was in clear violation of the recruitment rules. Aggrieved by the same, the present petition is filed seeking to set aside the orders of the CAT. W.P.(C)No. 7188 OF 2010 5. This writ petition was also filed at the instance of the Postal Department. The respondents herein-1 to 5, were the W.P.(C) No.36443 of 2007 and conn. cases. -:4:- applicants in O.A.No. 423 of 2008 before the CAT. The applicants 1 to 5 were working as Extra Department Mail Deliverers, Branch Post Master and Mail Carriers who had completed 15 years' of service. A seniority list of GDS in Vadakara Postal Division came to be published on 01.07.2004 wherein serial numbers of the applicants before the CAT were shown as 89, 98, 102, 103 and 108 respectively. According to them, they were eligible and entitled to be promoted to the post of Postman against 25% vacancies earmarked for Extra Departmental Agents on the basis of their running seniority in accordance with Col.11(2) (i) of Schedule 2 of the Recruitment Rules of 1989, which came to be amended in 1994. So far as 15 years of running seniority, the department contested the matter and ultimately, the CAT opined that the controversy in the above application was already considered in similar matters in O.A. No.277 of 2004 and 704 of 2006 and consequently allowed O.A.No.423 of 2008 on 04.02.2009. W.P.(C) No.22342 of 2010 6. This writ petition was filed challenging the orders in O.A.No.699 of 2009 on the file of the CAT, Ernakulam Bench. W.P.(C) No.36443 of 2007 and conn. cases. -:5:- The challenge before the CAT was also with regard to the age of GDS while considering his/their recruitment to the post of Postman. The Tribunal on the applications of the respondents/ GDS, placing reliance on the earlier decision of the Tribunal where similar controversy of Group D promotions arose and ultimately concluded no question of age restriction could be considered, so far as GDS/Extra Departmental Agents/employees are concerned. Therefore, the Original Application was allowed and the same is impugned in this writ petition by the department. O.P.(CAT) 1696 OF 2011 7. This also pertains to Vadakara Postal Division. The Postal Department is the petitioner before us in the writ petition. This arises out of O.A.No.349 OF 2009 on the file of the CAT. The applicants approached the CAT contending that they are the seniormost GDS as on the date of occurrence of vacancies in the year 2005 and contended that they are to be considered by virtue of Col.11(2)(i) of the above said Recruitment Rules. As a matter of fact, the applicants were before the CAT in a second round of litigation. As on an earlier occasion, they approached W.P.(C) No.36443 of 2007 and conn. cases. -:6:- the CAT in O.A.No.704 of 2006 which came to be allowed on 23.04.2007, the Tribunal directed the respondent authority to take immediate steps for filling up the promotional vacancies in the cadre of Postman for 2004-05 in Vadakara postal division and to consider the case of the applicants in O.A. 704 of 2006 in accordance with their seniority depending upon compliance of eligibility criteria in terms of recruitment rules. A review application also came to be filed before the CAT and the same was dismissed. Aggrieved by the same, the Postal Department approached this Court in W.P.(C)19182 of 2008. But the writ petition came to be dismissed on 07.07.2008. Thereafter, the applicants filed COC 55 of 2008 complaining disobedience of the directions of the CAT in O.A. 704 of 2006. 8. One Mr.A.Abdul Salam, Superintendent of Post Office, Vadakara Division filed an affidavit stating that one vacancy falling under 25% seniority quota has already been filled up by appointing one M.K. Balachandran and hence there was no vacancy under seniority quota for the year 2004-05. It was also contended that even after appointing M.K. Balachandran, two more posts were vacant to be filled up in the W.P.(C) No.36443 of 2007 and conn. cases. -:7:- year 2005 to comply with the direction of the CAT. However, the Screening Committee did not approve the case of the applicants on the ground that two posts were direct recruitment posts and not promotional post. A review was also filed. However, taking into consideration all these facts, ultimately, the Tribunal allowed O.A.No. 349 of 2009 by its order dated 22.02.2011. Aggrieved by the same, the present petition is filed. 9. In this writ petition, according to the department, once GDS opted for Group D cadre, he could not have again sought for his promotion from GDS Group to Postman , i.e., Group C post; therefore, CAT was erroneous in allowing the appeal. It is also pertinent to mention here that in the second round of litigation, in O.A. 349 of 2009, more or less, the controversy was between the two persons i.e., the first respondent herein and the second respondent Mr. Balachandran, who was promoted as Postman earlier to the first respondent in the year 2007 based on the seniority as per Annexure A-14. However, the Department before us is challenging the order dated 26.07.2010 on the ground that the first respondent was not entitled to seek promotion as Postman on two grounds; one W.P.(C) No.36443 of 2007 and conn. cases. -:8:- from GDS there is no question of promotion to the post of Postman as it is a class by itself, a separate independent feeder category and secondly, after opting out to be appointed as Group D employee, he could not have changed his stand and sought for the post of Postman. O.P(CAT)Nos.1095, 1099, 1228, 1501, 1638 & 1754 OF 2011: 10. O.P.(CAT) Nos. 1754 and 1228 of 2011 arise out of a common order in O.A. 608 of 2010. O.P.(CAT)No. 1754 of 2011 is filed by the department and O.P.(CAT) No.1228 of 2011 is filed by the private respondent before the CAT. O.P.(CAT) Nos.1638 and 1095 of 2011 arose out of a common order in O.A.No.436 of 2010. O.P.(CAT)No. 1638 of 2011 is filed by the postal department and O.P.(CAT)No.1095 of 2011 is filed by the private respondent before the CAT. O.P.(CAT)No. 1501 of 2011 is filed by the postal department and O.P.(CAT)No.1099 of 2011 is filed by the private respondent before the CAT, who lost it in favour of the applicant. These two O.Ps are filed challenging the orders in O.A.232 of 2010 on the file of the CAT. The above W.P.(C) No.36443 of 2007 and conn. cases. -:9:- six Original Petitions involve a common question, i.e., whether reservation of posts for OBC group is legal or not. 11. According to the department, the very recruitment in question, so far as GDS/Extra Departmental Agents are concerned is not a promotion, but recruitment which can be treated as a direct recruitment. Therefore, reservation of posts for OBC candidates was permissible and the Tribunal was not justified in rejecting the plea of the department by allowing the application filed by the applicants. 12. In all these cases, the question relates to the recruitment/appoint of Postman from among the GDS (earlier Extra Departmental Agents). It is not in dispute that the recruitment for the post of Postman is governed by Department of Posts Recruitment Rules of 1989. The relevant years in which the dispute arose pertain to 2004, 2005, 2007, 2008 and 2009. According to the learned counsel Mr.Krishnamoorthy who represents the department, the post of GDS under Col.11(2)(i) and (ii) is direct recruitment and not a promotion. He brought to our notice during the course of argument that so far as Postman is concerned, it is Group C post and below the Postman W.P.(C) No.36443 of 2007 and conn. cases. -:10:- there is Group D post, from where promotions are made by direct recruitment. From this Group D, appointments are made to Postman by promotion and so far as from the post of GDS, it is only a direct recruitment as they are not in any regular classification of posts of the department. In other words, he contends that this GDS is a class by itself and not a feeder category like Group D post. Therefore, the appointment from GDS to Postman and other equivalent cadre is only by direct recruitment and it cannot be considered as a promotion. 13. The next controversy is with regard to the age restriction for general category and also for reserve category of SC/ST. According to the learned Counsel, the age restriction contemplated under Col.7(ii) is applicable for appointments under Col.11(1) and (2). The third controversy is with regard to the OBC reservation. According to the learned Counsel, once appointment from GDS to Postman is considered as a direct recruitment, the department was justified in reserving certain posts for OBC category. Therefore, the Tribunal was not justified in holding that there was no OBC reservation as such to the post of Postman from GDS. It is further contended, the actual affected W.P.(C) No.36443 of 2007 and conn. cases. -:11:- parties are not before us, therefore, the Tribunal ought not to have allowed the applications granting the reliefs to the applicants before the Tribunal, as it would result in re-doing the entire exercise which has reached finality, subsequent to the promotion of the candidates to the post of Postman from 2005 onwards. 14. As against this, the learned Senior Counsel Mr.O.V. Radhakrishnan contended that there was no question of any approval by the Screening Committee as the very appointment to the post of Postman from GDS is not a direct recruitment and the rules contemplate approval of the Screening Committee only when it is a direct recruitment. According to the learned Counsel, Rule/Column 9 is very clear that no educational qualification is required. According to him, Col. 9 indicates, the age and educational qualification prescribed for direct recruitment will not apply in the case of promotions and therefore, once appointments of these GDS candidates to the post of Postman is considered as a promotional appointment, then the question of age restriction would not come in the way. He further brought to our notice Colm.11(5) of the rules to support his arguments that W.P.(C) No.36443 of 2007 and conn. cases. -:12:- only direct recruitment contemplated under this Column is through the nominees of the Employment Exchange only after complying Col. 11(1), 11(2) (i) and (ii) , 11(3) and 11(4). In other words, according to the learned Senior Counsel, Col.11(1) to (4) contemplate only promotion from the category of either Group D or GDS/Extra Departmental Agents/employees and Col.11(5) refers to direct recruitment through the nominees of Employment Exchange and other than this, direct recruitment through the Employment Exchange and none of the provisions refer to any direct recruitment as such. Therefore, it is argued that the stand of the petitioner department is erroneous and cannot be entertained. He also brought to our notice what exactly the recruitment would mean and according to him, 29 posts were vacant which were not filled up for want of approval of Screening committee, which was incorrect on the part of the department. When 29 posts became vacant, those posts were to be filled up in accordance with the procedure contemplated under Col.11, after taking into consideration other columns. Therefore, keeping the posts vacant for long has led to the problem in question. Hence he sought for dismissal of the W.P.(C) No.36443 of 2007 and conn. cases. -:13:- petitions filed by the department. While arguing the case of seniority in O.P.(CAT) 1696/2011 with regard to Mr.Balachandran, the claim of the petitioner cannot be entertained as Mr.Balachandran has not challenged the same, who is stated as the aggrieved party by virtue of the orders of the CAT is the contention. 15. Then coming to the question of OBC, as the rules are silent with regard to reservation of posts so far as OBC, as all the posts have to be filled up by promotion from Col.11(1) to 11(4), the question of reservation of any post for OBC does not arise and even otherwise when the vacancies came to be notified, it was notified as unreserved. Therefore, according to the learned Senior Counsel, the Tribunal was justified in allowing all the applications after taking into consideration several facts and circumstances brought before the Tribunal and hence the question of reversing the orders of the Tribunal would not arise and sought for dismissal of the petitions. 16. We also heard Adv. Mr.Hariraj. (in W.P.(C)No. 22342 OF 2010) According to him, appointment from GDS to Postman, even if not considered as a promotion, it has to be W.P.(C) No.36443 of 2007 and conn. cases. -:14:- considered as an 'upgradation'. Therefore, according to him, so far as seniority, age restriction is applicable. According to the learned Counsel, the private respondent in this case was eligible both under Col.11(2)(i) and 11(2)(ii), but because of the age restriction under Col.7(ii), he was denied the benefit. However, CAT considered his case under Col.11(2)(ii) opining that age restriction under Column 7 will not apply to Col.11(2)(ii) candidates. So far as the contention with regard to reservation of OBC candidates, according to him, as the appointments from GDS to Postman is neither direct recruitment nor promotion, reservation from OBC group was proper and therefore, the Tribunal was not justified in allowing the applications, so far as setting aside the candidature of the applicants from OBC. 17. The rules which are applicable, are Department of Posts (Postman, Village Postman and Mail Guards) Recruitment Rules of 1989. So far as Column 7, by virtue of an amendment brought in 1994, the upper age limit of Extra Departmental Agents was made as 50 years with five years relaxation for SC/ST candidates as on first July of the year in which the examination is held and he should have completed a minimum of W.P.(C) No.36443 of 2007 and conn. cases. -:15:- five years satisfactory service as on first January of the year in which the examination is to be held. 18. The relevant provisions which are applicable to the facts of the case are Column No.7(ii), which is extracted below: XX XX XX “(ii) For extra Departmental agents, the upper age limit shall be 50 years with 5 years relaxation for the Scheduled Castes Scheduled Tribes Candidates as on 1st July of the year in which the examination is held and he should have completed a minimum of 5 years of satisfactory service as on 1st January of the year in which the examination is held.” 19. Column 11 is very relevant which reads as under: “1. 50% by promotion, failing which by Extra Departmental Agent, on the basis of their merit in the Departmental Examination. 2. 50% by Extra Departmental Agents of the recruiting division or unit, in the following manner, namely:- (i) 25% of the vacancies of Postman shall be filed up from amongst Extra Departmental Agents with a minimum of 15 years of service on the basis of their seniority failing which by the Extra Departmental Agents on the basis of departmental examination.; (ii)25% from amongst Extra Departmental Agents on the basis of their merit in the Departmental Examination. 3. If the vacancies remained unfilled by EDAs of the recruiting division, such vacancies may be filled by EDAs of the postal division falling in the zone of Regional Directors. W.P.(C) No.36443 of 2007 and conn. cases. -:16:- 4. If the vacancies remained unfilled by EDAs of the recruiting units such vacancies may be filled by EDAs of the postal divisions located at the same station. Vacancies remaining unfilled will be thrown open to Extra Departmental Agents in the region. 5. Any vacancy remaining unfilled shall be filled up by direct recruitment through the nominees of the Employment Exchange.” 20. Then, so far as Colum11 (2), it came to be introduced as 11(2)(i), 25% of the vacancies of Postman shall be filled up from among the Extra Departmental Agents with a minimum of 15 years' of service on the basis of their seniority, failing which by the Extra Departmental Agents on the basis of the departmental examination. Prior to this 1995 amendment, out of the vacancies 50% by way of promotion, failing which, Extra Departmental Agents on the basis of their merit in the departmental examination was provided. This refers to Group D post of postman. By amendment to Col.11(2)(i) the mandate of the departmental examination that 25% of the vacancies on the basis of seniority came to be removed and the condition was running seniority of 15 years' and by amendment, the minimum of 15 years' of service was the criterion on the basis of their W.P.(C) No.36443 of 2007 and conn. cases. -:17:- seniority, failing which by the Extra Departmental Agents on the basis of the Departmental Examination and the balance 25% from among the Extra Departmental Agents on the basis of their merit in the Departmental Examination. Col.11(3) and (4) actually refers to how the unfilled vacancies of Extra Departmental Agents of a recruiting division could be filled up by zone or from one division to another division. 21. In none of the present matters, we are concerned with a situation covering Col.11(3) and (4). We are also not concerned with Col.11(5). We are only concerned with Col.11(1), 11(2) (i) and 11(2) (ii). The entire vacancies as of now is divided into two portions, i.e. 50% by promotion from Group D and if all the vacancies of 50% could not be made by promotion from Group D on the basis of their merit in the departmental examination, then the unfilled vacancies would go to Extra Departmental Agents on the basis of the rank list in the departmental examination. Then among the other 50%, 25% would go to the persons based on the seniority who need not take any departmental examination and for that 25%, if candidates are not sufficient for consideration to the post of W.P.(C) No.36443 of 2007 and conn. cases. -:18:- Postman based on the seniority, the rest will again go to Extra Departmental Agents based on the merit in the rank list in the departmental examination, then the other 25% from among the Extra Departmental Agents based on the merit in the departmental examination. Under three columns of 11(1) and 11 (2), if for any reason the percentage of posts earmarked for a particular category are unfilled, it always go to the Extra Departmental Agents based on the merit in the departmental examination. If still any vacancies are available, from one recruiting division to another postal division is also contemplated and after exhausting that process, if the posts are still remain unfilled again from one postal division located in the same station to another postal division located in the circle. After exhausting the exercise contemplated under Col. 11(1) to (4), if any posts are vacant, then the question of direct recruitment from the nominees of Employment Exchange comes into play. Reading of Column 11(2) to (4), nowhere it refers to any direct recruitment as