IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 WP(C).No. 15326 of 2009(S) -------------------------- OA.499/2008 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS/ APPLICANTS 1-9,11-18: ------------------------------------ 1. ANJU THYAGARAJAN,D/O.SRI.M.R.THYAGARAJAN WORKING AS INSPECTOR OF POSTS (PUBLIC GRIEVANCES) (OFFICIATING) POSTAL ASST.,O/O.SR.SUPERINTENDENT OF POST OFFICES, EKM.DIV.682011,R/AT'ANUPAMA', KANNATHODATHU ROAD.,EDAPPALLY, KOCHI-24,PRESENTLY WORKING AS INSPECTOR OF POSTS(OS), OFFICE OF THE SUPERINTENDENT OF POs, RAEBAREILY, U.P 2. JAYASREE E.K.,D/O.SRI.KRISHNAN E.A, WORKING AS SORTING ASST.,SRO RMS 'EK'DIVISION, THRISSUR-21, R/AT PARIJATHAM, CHOORAKKATTUKARA, AMALA NAGAR P.O., THRISSUR-680555, PRESENTLY WORKING AS INVESTIGATING INSPECTOR, O/O. THE POSTMASTER GENERAL, AGRA REGION, AGRA, U.P. 3. SIVAKUMAR.P, S/O.SRI.S.PITCHAI ACHARI, (POSTAL ASST.,TVM.SOUTH DIVISION) WORKING AS SYSTEM ADMINISTRATOR,(SOS),NEYYATTINKARA UNIT, NEYYATTINKA R/AT.VETTUKKATTU VILA, OPP:ALPHONSA CASHEW FACTORY MULAGUMOODU P.O.,KANYAKUMARI DIST.629167,PRESENTLY WORKING AS INSPECTOR POSTS(PG), NAVSARI DIVISION, NAVSARI - 396 445, GUJRAT STATE. 4. JOYMON C.I., S/O.C.P.ITTEERA, AGE 37, WORKING AS POSTAL ASSISTANT, ALUVA HPO, RESIDING AT CHULLY HOUSE, THURAVOOR, ANGAMALI, ERNAKULAM DISTRICT 683 586. 5. S.NANDAKUMAR, S/O.LATE S.SIVADASAN, WORKING AS POSTAL ASSISTANT, KOLLAM HEAD POST OFFICE, R/AT.KOTTILAZHIKATH HOUSE, SAKTHIKULANGARA P.O., KOLLAM-691581, PRESENTLY WORKING AS OS/IP (PG), OFFICE OF THE SUPDT. OF POS, RAMPUR DIVISION, SHIMLA, H.P. WP(C).No. 15326 of 2009 2 6. SAJU JOHN, S/O.SRI. A.JOHN, AGED 33 YEARS, WORKING AS POSTAL ASSISTANT, KOTTARAKARA HEAD POST OFFICE, KOTTARAKARA, KOLLAM -691 506, R/AT.'SURABHI', PERAYAM, MULAVANA P.O., KOLLAM 691 503, PRESENTLY WORKING AS INSPECTOR OF POST (PG), BHARUCH, OFFICE OF THE SPOS, BHARUCH. 7. RAJEEV V., S/O.SRI.S.VASUDEVAN, WORKING AS INSPECTOR OF POSTS (PUBLIC GRIEVANCES) (OFFICIATING),POSTAL ASSISTANT, MAVELIKKARA DIVISION, R/AT.PADINJARE VARRIAM, ERUVA P.O., KAYAMKULAM 690 564, PRESENTLY WORKING AS INSPECTOR POSTS, RAIPUR SUB DIVISION, RAIPUR, CHATTISGARH. 8. P.DEEPTHI, D/O.SRI.S.PEETHAMBARAN, AGED 29 YEARS, WORKING AS SORTING ASST., SRO RMS 'CT' DIVISION, PALAKKAD, R/AT SANTHWANAM, VALMUTTY, ANICODE, CHITTOOR P.O., PALAKKAD 678 101, PRESENTLY WORKING AS INSPECTOR POSTS (PG), VAISHALI DN.,HAJIPUR 844102, BIHAR. 9. ASHA ANAND, D/O.SRI.R.SIVANANDAN, AGED 33 YEARS WORKING AS POSTAL ASST.,VEMBAYAM P.O., TRIVANDRUM NORTH DIVISION, TRIVANDRUM, R/AT.ARADHANA, ST.SEBASTIAN THOPE, MANNANTHALA P.O.,TVM-695015 PRESENTLY WORKING AS INSPECTOR POSTS(PG), SURENDRA NAGAR DN, O/O.THE SPOs, SURENDRA NAGAR. 10. ANILKUMAR N., S/O.SRI.T.LAKSHMANAN, WORKING AS DEVELOPMENT OFFICER, POSTAL LIFE INSURANCE, NORTHERN REGION, O/O.SR.SUPERINTENDENT OF POST OFFICES, CALICUT-673003, R/AT THUSHARA, AZHIKODE P.O.,KANNUR 670009, PRESENTLY R/AT SUBHA VIHAR,C/O.SUDARSHAN, ANIYAMVEEDUPARAMBU,NADAKKAVU, CALICUT, PRESENTLY WORKING AS INSPECTOR POSTS (PG), KHADA DIVISION, O/O.THE SPOs, KHADA. 11. UNNIKRISHNAN N., S/O.SRI.K.NARAYANAN, AGED 29 YEARS, WORKING AS SYSTEM ADMINISTRATOR, HEAD QUARTER AT PATTAMBI,OTTAPALAM DIVISION,(POSTAL ASST.,OTTAPALAM DIVISION), R/AT.MINI NIVAS, PALAPPURAM P.O., OTTAPALAM 679103, PRESENTLY WORKING AS INSPECTOR POSTS(PG),OFFICE OF THE SPOs, ANAND DN, ANAND. WP(C).No. 15326 of 2009 3 12. KUMARI G.SHOBHANA,D/O.SRI.P.GOPALAKRISNA PILLAI, AGED 35 YEARS, WORKING AS OFFICE ASSISTANT, DIVISIONAL OFFICE, THIRUVALLA, R/AT.PUTHUVANA HOUSE, KAVUMBHAGAM P.O., THIRUVALLA, PATHANAMTHITTA DIST. PRESENTLY WORKING AS INSPECTOR POSTS (PG), GONDAL DIVISION, OFFICE OF THE SPOS, GONDAL. 13. AJEETH R., S/O.SRI.K.RAVEENDRAN NAIR, AGED 38 YEARS WORKING AS OFFICE ASST.,O/O.THE SUPERINTENDENT OF POST OFFICES, TVM.SOUTH DIVISION, TVM.695014, R/AT.RATNA BHAVAN, ERICHALLOOR, PLAMOOTTUKADA P.O. TVM.695128,PRESENTLY R/AT.'REVATHI',PULIAMVILAKAM, KULAPPURAM P.O., VIA KALIYAKKAVILAI, K.K.DIST. PRESENTLY WORKING AS INSPECTOR POSTS, BARDOLI SOUTH SUB DN., BARDOLI DN., GUJARAT CIRCLE 394 601. 14. LYSHA K.R., D/O.SRI.N.REGHU, AGED 37 YEARS, WORKING AS POSTAL ASST., KOLLAM HEAD POST OFFICE, KOLLAM, R/AT.KALAKSHETHRAM, THATTAMALA P.O., KOLLAM-20, PRESENTLY WORKING AS INSPECTOR POSTS (PG), OFFICE OF THE SSPs, VALSAD DN., VALSAD. 15. K.MANOJ MENON, S/O.SRI.N.K.MENON, WORKING AS OFFICE ASST., OFFICE OF SENIOR SUPERINTENDENT OF POST OFFICES, KOTTAYAM DIVISION, R/AT.SREEHARI HOUSE, NEAR UNION CLUB, KOTTAYAM- 686001, PRESENTLY WORKING AS INSPECTOR POSTS(PG), OFFICE OF THE SSPS, RAJKOT DN, RAJKOT-360001. 16. BINDU R., D/O.SRI.K.K.RAJAPPAN, AGED 31, WORKING AS INSPECTOR OF POSTS (PUBLIC GRIEVANCES) (OFFICIATING),O/O.SR.SUPERINTENDENT OF POST OFFICES, KOTTAYAM POSTAL ASST., KOTTAYAM POSTAL DIVISION,R/AT 'KAILASAM' , KADAPPUR,VATTUKULAM P.O.,KOTTAYAM-686596 PRESENTLY WORKING AS OS, POSTAL TRAINING CENTRE, DARBHANGA, BIHAR. 17. M.S.SANEESH KUMAR, S/O.LATE V.K.SANKARANARAYAN NAIR, AGED 33 YEARS, WORKING AS POSTAL ASSISTANT, MUVATTUPUZHA HEAD POST OFFICE, ALUVA DIVISION, RESIDING AT MALIKAYIL HOUSE, PIRAVOM P.O., PIN-686 661. BY ADV. SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE SMT.K.RADHAMANI AMMA SRI.K.RAMACHANDRAN (THYKOODAM) SRI.ANIL PARATHARA WP(C).No. 15326 of 2009 4 RESPONDENTS/ RESPONDENTS 1-14 AND APPLICANT NO.10: -------------------------- 1. DIRECTOR GENERAL, DEPARTMENT OF POSTS, DAK BHAVAN, NEW DELHI. 2. CHIEF POSTMASTER GENERAL, KERALA CIRCLE, THIRUVANANTHAPURAM. 3. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF COMMUNICATIONS AND INFORMATION TECHNOLOGY, DEPARTMENT OF POSTS, DAK BHAVAN, SANSAD MARG, NEW DELHI-110 001. 4. S.BHAGYARAJ, S/O.P.G.UNNIKRISHNAN NAIR, POSTAL ASSISTANT, PATHANAPURAM P.O., RESIDING AT SARASWATHY BHAVAN, KOODAL P.O., PATHANAMTHITTA-689 693. 5. PRAKASH P.BHASKARAN, S/O.BHASKARAN, POSTAL ASSISTANT, KONNI P.O., RESIDING AT PANACKAL HOUSE, MEKOSHOOR P.O., PATHANAMTHITTA 689 678. 6. SATHY P.R., W/O.K.ANIL, OFFICE ASSISTANT DIVISIONAL OFFICE, TIRUVALLA, RESIDING AT THULISALA KOYICKAL, NIRANAM P.O., TIRUVALLA. 7. DEEPA MURALI, D/O.P.K.SIVAN PILLAI, POSTAL ASSISTANT, KAYAMKULAM P.O., RESIDING AT DEVIKA NIVAS, IRANIKUDY P.O., PANDALAM, PIN: 689 515. 8. SMITHA SAGAR, W/O.D.MOHANKUMAR, OFFICE ASSISTANT, DIVISIONAL OFFICE, MAVELIKKARA, RESIDING AT CHAITHNYAM, THATTARAMBALAM, MAVELIKKARA. 9. RAJEEV J. CHERUKAD, S/O.JOSEPH, OFFICIATING AS INSPECTOR (PG), CHANGANACHERRY DIVISION, RESIDING AT CHERUKAD HOUSE, THRIKODITHANAM, CHANGANACHERRY 686 105. 10. ARUN R.NATH, S/O.P.RAVINDRANATH, OFFICE ASSISTANT, DIVISIONAL OFFICE, CHANGANASSERY, RESIDING AT VALIYAVEEDU HOUSE, MURUKANAGAR, PERUNNA, CHANGANACHERRY. 11. DHANYA M.P., W/O.MOHANDAR, POSTAL ASSISTANT, TIRURANGADI P.O., RESIDING AT SOPANAM, CHENAKKALANIGADI P.O., TENCHIPALAM. WP(C).No. 15326 of 2009 5 12. M.A.SURESHKUMAR, S/O.ARAVINDAN, SUB POSTMASTER, MOOKKUTHALA P.O., RESIDING AT MOOTHERY HOUSE, ERAMANGALAM P.O., MALAPPURAM 679 587. 13. P.SUDHAKARAN, S/O.GANGADHARAN, OFFICE ASSISTANT, DIVISIONAL OFFICE, TIRUR, RESIDING AT PANICHAAKATHIL HOUSE, NIRAMARATHUR, TIRUR. 14. JALAJA P.P., W/O.DILEEP SHAJU K.K., POSTAL ASSISTANT, TIRUR HEAD POST OFFICE, RESIDING AT KARYATTUKARA HOUSE, TIRUR. 15. MAYA R.P., D/O.LATE R.PADMANABHAN, AGED 36 YEARS, WORKING AS SORTING ASSISTANT, RMS, 'TV', DN, THIRUVANANTHAPURAM, RESIDING AT A/O., POSTAL STAFF QUARTERS, THIRUVANANTHAPURAM-15. 16. CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, REPRESENTED BY ITS REGISTRAR, KALOOR, ERNAKULAM. ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R1-3 SRI.S.KRISHNAMOORTHY, CGC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. -------------------------------------- W.P.(C) No.15326 OF 2009 -------------------------------------- Dated this the 13th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. This Writ Petition is filed challenging Ext.P8 order of the C.A.T in O.A.No.499/2008 by the applicants therein. All of them were working as Postal Assistants. Their next promotion post is Inspector of Posts. Appointment to the said post is governed by Annexure-A1 Recruitment Rules. 1/3rd of the vacancies have to be filled up by direct recruitment and 2/3rd through Limited Departmental Competitive Examination. The writ petitioners applied for the Limited Competitive Examination when applications were invited for the same by Annexure-A3 dated 7.6.2007. The vacancies notified were only 12. All the applicants cleared the test. But, there were not sufficient vacancies to accommodate them. In other words, they did not come in the first 12, among the candidates who cleared the test. While so, the competent authority evolved a scheme for posting the persons, who cleared the test in a Circle to other W.P.(C) No.15326/2009 2 circles, where there was dearth of test qualified hands. The applicants/Writ petitioners were considered for appointment in other Circles. While so, the competent authority notified the schedule for departmental examination by Annexure-A9 for appointment to the post of Inspector of Posts in Kerala Circle by Limited Competitive Examinations on 3.1.2008. The vacancies notified under promotion quota as per Annexure-10 were ten, out of which, six was unreserved. The writ petitioners claimed that they should be treated as persons wait listed during the previous year and therefore, should be accommodated in the vacancies notified as per Annexure- A10. They also had a claim that during the year 2007, additional vacancies were available to accommodate the wait listed candidates like the applicants. In the Original Application, they claimed the additional vacancies, which according to them were available in the year 2007, and also the vacancies notified for recruitment in the year 2008. 2. The respondents resisted the Original Application by filing a detailed reply affidavit. The appellants filed a rejoinder. The Central Administrative Tribunal, after hearing both sides, W.P.(C) No.15326/2009 3 dismissed the Original application. The C.A.T held that, even if, there are additional vacancies in the year 2007, the applicants can claim only the notified vacancies. The claim of the applicants for the vacancies notified in 2008 was founded on Rule 279/1 of Post and Telegraph Manual Volume IV. The said Rule as it stood before amendment reads as follows: “Rule 279/1 Rules for Recruitment of Inspectors of Post Offices and Inspectors of Railway Mail Service. 1. The rules of recruitment of Inspectors of Post Offices and Inspectors of Railway Mail Service are contained in Appendix 51. 2. An examination for the recruitment of Inspectors of Post Offices/Railway Mail Service will normally be held once a year at the discretion of the Director General. It is open to the Director General not to hold the examination in any year in Circle if the number of qualified candidates on the waiting list is adequate for the vacancies likely to occur in the next 12 months. The examination will be held at selected centers in each Circle.” (emphasis supplied) W.P.(C) No.15326/2009 4 According to the respondents, as early as in 1990, that Rule was amended. Sub Rule 2 of Rule 279/1 of the P & T Manual Vol.IV was amended in the following manner. “The following may be substituted in place of existing Rule 279/1(2) (a) A examination for the recruitment of Inspectors of Post Offices/Railway Mail Service will normally be held once a year. The examination will be held, as far as possible, in the month of June in every circle. It is open to the Director General not to hold the examination in any year in any circle for any reason. The examination will be held at selected centres in each Circle. (b) The tabulation of results will be done in the Director General's office. The Director General will draw up separately for each Circle a list of candidates out of the qualified candidates who stand highest in order of merit in that Circle up to the number of vacancies announced for the examination for that Circle and reject the rest.............” So, the Rule that the surplus candidate of a particular year can be treated as wait listed candidates for the next year was W.P.(C) No.15326/2009 5 effaced with the introduction of the new Rule 279/1(2). Relying on the said amendment, the claim of the petitioners for the vacancies notified for the year 2008 was also repelled by the C.A.T. 3. Feeling aggrieved by the said judgment of the C.A.T., a copy of which produced as Ext.P8, this Writ Petition is filed. The learned Senior Counsel, Sri.O.V.Radhakrishnan, mainly, contended that Rule 279/1(2) of P & T Manual Volume IV being statutory, the Director General of Posts has no authority or jurisdiction to modify it by issuing a correction slip or even by an amendment. If the Original Rule was a statutory rule, then by executive instructions it cannot be modified. Therefore, we directed the respondents to file a counter affidavit on that aspect. The respondents in their counter affidavit, filed pursuant to the direction of this Court, stated as follows: In the year 1990, as per the Director General's decision the said Rule in the Vol.IV had been modified/amended by the Director General as per Annexure R2. The same was done within the administrative power of the 1 st respondent viz., Director General. Since the W.P.(C) No.15326/2009 6 Original Rule 279/1(2) itself was not statutory in nature, the Recruitment of Inspectors of Post Offices instructions had been modified by virtue of Annexure R2. Thereafter, the Departmental Competitive Examination for the promotion to the post of Inspectors of Post Offices were held in accordance with the said modification carried out by the Director General, which was incorporated in the original place of Rule 279/1(2). Accordingly every year the examination is carried out and the examination is held at selected centers in each Circle and the qualified candidates who secure the highest position in order of merit in that Circle up to the number of vacancies announced for the examination for that Circle are appointed against the notified vacancies.” 4. In answer to the counter affidavit, the petitioners filed a reply affidavit and along with that they have produced Exts.P10 and P11 judgments of this Court. In Ext.P10, the learned Single Judge of this Court held that even assuming the Rules in the P & T Manual were non-statutory, they cannot be modified by issuing a clarification and that too without publishing in the gazette. The said judgment was affirmed by Division Bench in Ext.P11. Based on the above decision, the learned senior counsel for the writ petitioners submitted that the correction slip issued by the Director General as per Ext.R2, W.P.(C) No.15326/2009 7 produced along with the reply affidavit before the C.A.T, cannot have the efficacy to amend Rule 279/1(2). It is also submitted that the correction slip was not notified in the official gazette. 5. Regarding the additional vacancies stated to be available in the year 2007, we agree with the reasoning of the Tribunal that the incumbents in the feeder posts are entitled to stake their claim only to the vacancies notified. It is primarily for the administrator concerned to decide how many vacancies are to be notified for direct recruitment and for promotion. But, it should be done in accordance with ratio notified in the Rules. Since a rank list being alive for sometime or filling up all vacancies that may arise in the meantime from it, is not contemplated, we find nothing wrong with the proposition stated by the Tribunal that the petitioners can claim only by the vacancies notified. Even the decisions produced as Exts.P10 and P11, acknowledge the position that P&T Manual is a compilation of executive instructions. Nothing has been produced before us to doubt the claim of the respondents that all these instructions were issued by the Director General only and not by the Government. When a modification to the W.P.(C) No.15326/2009 8 instructions was issued as per Ext.R2 in 1990, there is no reason to doubt at this distance of time, that it was not issued in accordance with law. The self serving assertion now made without the support of any material that it was not published in the gazette does not deserve any serious consideration. It is now common ground that recruitment to the post of Inspector of Posts is governed by Recruitment Rules published in 2001, a copy of which is produced as Annexure-A1, along with the Original Application Ext.P1. The executive instructions as long as they are not at variance with the Recruitment Rules can supplement them. Since the original instructions were issued by the Director General of Posts, the subsequent modification issued by him in Ext.R2 will have validity and will amend the original instructions. So, if the Tribunal took the view that Rule 279/1(2) stands amended by Ext.R2, the same cannot be said to be an irrational, perverse or illegal view. No compelling materials are placed before us to take a different view. In the result, the Writ Petition fails and it is dismissed. (K. BALAKRISHNAN NAIR, JUDGE) (C.T. RAVIKUMAR, JUDGE) ps