IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 WP(C).No. 8735 of 2007(S) ------------------------- OA.516/2005 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER: ------------- K.VALSALA, AGED 49 YEARS, W/O. LATE V.KARTHIKEYAN, RESIDING AT CHIRAYIL HOUSE, C.M.C. D/147, CHERTHALA P.O. BY ADV. SRI.P.C.SEBASTIAN SRI.MARTIN G.THOTTAN RESPONDENTS: ---------------- 1. THE SUPERINTENDENT OF POST OFFICES, ALAPPUZHA DIVISION, ALAPPUZHA-688 012. 2. THE ASST. SUPDT. OF POST OFFICES, SUB DIVISION, ALAPPUZHA-688 011. 3. THE DIRECTOR GENERAL, CENTRAL REGION, KOCHI-682 016. 4. THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY TO GOVT. OF INDIA, MINISTRY OF COMMUNICATIONS, DEPARTMENT OF POSTS, NEW DELHI. 5. K.CHANDRAMOHANAN, GROUP D., ALAPPUZHA P.O., ALAPPUZHA. R1 TO R4 BY ADV. SRI.S.KRISHNAMOORTHY, CGC SRI.P.M.M.NAJEEB KHAN, ADDL.CGSC R5 BY ADV. SRI.JAGADEESH LAKSHMAN SRI.K.R.RAJKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8735 of 2007(S) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF ORDER NO.B2/ALLOTMENT/GROUP D/05 DATED 27.05.05 ISSUED BY THE 1ST RESPONDENT. EXT.P2 : TRUE COPY OF OA NO.516/05 FILED BY PETITIONER'S LATE HUSBAND BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM. EXT.P3 : TRUE COPY OF THE ORDER DATED 06.10.06 ISSUED BY THE HON'BLE CAT, ERNAKULAM DISMISSING OA NO.516/05. RESPONDENTS' EXHIBITS: EXT.R1 : TRUE COPY OF OM DATED 16.05.01 ISSUED BY THE MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES & PENSIONS. EXT.R2 : TRUE COPY OF ORDER OF APPOINTMENT DATED 13.06.07. EXT.R3 : TRUE COPY OF THE ORDER OF PUT OFF DUTY DATED 07.03.08. EXT.R4 : TRUE COPY OF THE CIRCULAR ISSUED BY THE DEPARTMENT NO.14-2-2001-SCT DATED 20.02.2002. /TRUE COPY/ PA TO JUDGE Thottathil B. Radhakrishnan & P.S. Gopinathan, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 8735 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd of February, 2010 JUDGMENT Thottathil B. Radhakrishnan , J. This writ petition is by the widow of one V. Karthikeyan who had filed the Original Application before the Central Administrative Tribunal. He was an Extra Departmental Mail Deliverer. The service particulars tend to show that he died on 07.07.06. 2. Appointments to categories in Sl.No.1 in Part II of the Department of Posts(Group ‘D’ Posts) Recruitment Rules, 2002 are made, firstly from among employees holding posts included in Serial No.2 of Part II. 75% of the left over of that competitive recruitment is left to be filled up from among Gramin Dak Sevaks(GDS) by recruiting them on selection- cum-seniority. The balance 25% is recruited following the same procedure, from casual labourers, full time casual labourers etc. 3. The issue is in relation to the claim made by late WP(C) No.8735/07 -:2:- Karthikeyan for appointment as against the aforesaid 75% quota. According to him, he was the senior most GDS and was in no manner inferior to any other employee. He pleaded that at least from 1999 he had served in Group D posts on temporary basis on different occasions. 4. Having regard to the phraseology “selection-cum- seniority”, we thought that the method of recruitment from among GDS is to have a selection and then preference being given on the basis of seniority. But, the counter affidavit of the Department before us and its reply statement before the Tribunal proceeds to show that process adopted is essentially based on seniority. 5. With the aforesaid, the controversy boils down to a limited extent; that is, as to the age fixed by the Department in terms of the one among the notes at the foot of Group D Recruitment Rules which says that GDS may be considered against the vacancies for direct recruitment in subordinate offices subject to such conditions as may be decided by the Department from time to time. Based on that power, the WP(C) No.8735/07 -:3:- Department is stated to have taken a decision fixing 50 years as the age limit beyond which a GDS not entitled to compete. 55 years was fixed as the age for those GDSs eligible for communal reservation. The short issue that arises for decision is as to whether the aforesaid prescription as to the age would in any a manner deprive SC & ST GDS of the entitlement to age relaxation while being considered for appointment by direct recruitment to the Group D category, as against a vacancy, which according to the Department is as per the roster, earmarked as an unreserved point. The Tribunal has answered that issue in favour of the Department and has thereby held that the preferential appointment of respondent No.5 stands. 6. If the method of recruitment to the category of Group D from GDS is by promotion, age limit cannot be prescribed for consideration of promotions while in service. If we take it that the method of recruitment is a process of weeding out the unfit, even the prescription of different age limits for candidates aspiring to the same post would be WP(C) No.8735/07 -:4:- unconstitutional except in cases where relaxation or reservation is made in favour of those who are eligible for reservation within the scheme of the Constitution. The constitutional authority to make reservation does not include the power to make an embargo to enjoy the benefit of reservation by excluding the beneficiaries of reservation from being considered against any particular bunch of vacancies. This is because any relaxation made in favour of challenged classes of citizens would be operationalised for the purpose of pushing them up the ladder, to provide support to equate them with the other categories who are not presumed to be challenged, going by the constitutional scheme and those laws which stand the tests of the Constitution. If we were to view it otherwise, we would definitely be upholding an infraction of Article-14 inasmuch as it would be treating unequals equally. In that view of the matter, we are inclined to think that Karthikeyan was eligible to contend that his priority to the post should not have been nipped on a ground referable to the fact that he had crossed the age of 50 years as on 15.01.01 WP(C) No.8735/07 -:5:- and, therefore, though an SC/ST candidate, is not entitled to claim age relaxation on that ground. 7. While we answer the issues raised in this writ petition as aforesaid, the learned counsel for the Department points out that the sustainability or otherwise of the terms of the classification on the basis of age and such matters have been decided in different jurisdiction including the Tribunal and therefore this Court may not finally express on it. Rather, the attempt is to say that there may not be any precedent, particularly when the case in hand relates to an employee who, even at the time of the final order of the Tribunal, was no more. 8. Having regard to the aforesaid, we deem it appropriate to mould the relief by holding that though late Karthikeyan was entitled to be appointed to a Group D post in terms of the Department of Posts(Group D Posts) Recruitment Rules, 2002, in view of the demise of Sri.Karthikeyan, there is no ground to upset the preferential appointment given to 5th respondent or to lay down any principle as to law to hold in WP(C) No.8735/07 -:6:- any particular manner the effect of the Departmental decision. All that is required to secure the ends of justice is that late Karthikeyan would be notionally treated to have been holding a Group D post on and from the date on which the 5th respondent was appointed to that post. This notional fixation is for the purpose of determining the pension and other retirement benefits that may be due to the estate of the Karthikeyan on such basis, in accordance with law. The Writ Petition ordered as above. The impugned decision of the Tribunal would stand modified accordingly. Thottathil B. Radhakrishnan, Judge P.S. Gopinathan, Judge ttb WP(C) No.8735/07 -:7:-