IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933 OP (CAT).No. 2528 of 2011(Z) ---------------------------- OA.709/2007 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS/RESPONDENTS IN THE O.A.: -------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA MINISTRY OF COMMUNICATIONS, DEPARTMENT OF POSTS NEW DELHI. 2. THE CHIEF POSTMASTER GENERAL KERALA CIRCLE, TRIVANDRUM-33. 3. THE SENIOR MANAGER MAIL MOTOR SERVICE, DEPARTMENT OF POSTS, ERNAKULAM. 4. THE SENIOR SUPERINTENDENT OF POST OFFICES, DEPARTMENT OF POSTS,TRIVANDRUM NORTH DIVISION TRIVANDRUM 695 001. BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA RESPONDENT/APPLICANT IN THE O.A.: --------------- K.G.GIRISH KUMAR, S/O C.KRISHNAN NAIR GRAMIN DAK SEVAK MAIL DELIVERER KANJIRAMPARA RESIDING AT 'ANJANAYA', TC 9/986/6 PANICKER'S LANE, SASTHAMANGALAM,TRIVANDRUM 695 010. THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 10/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C.A.T) NO.2528/2011 APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF O.A.NO.709/2007FILED BY THE RESPONDENTs EXT.P2: COPY OF REPLY STATEMENT FILED BY THE PETITIONERS. EXT.P3: COPY OF CAT ORDER DT.24.2.2009 IN O.A.NO.709/2007. EXT.P4: COPY OF MINISTRY OF FINANCE O.M.NO.7(3) E.COORD DT.22.7.2006. EXT.P5: COPY OF DIRECTORATE LETTER DT.25.8.2010 & NOTE DT.21.8.2010. EXT.P6: COPY OF CAT ORDER DT.17.1.2011 IN CP(C) NO.71/10. EXT.P7: COPY OF RA NO.10/2011 EXT.P8: COPY OF CAT ORDER DT.20.7.2011 IN O.A.NO.709/2007. //TRUE COPY// PA TO JUDGE C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. ------------------------------------------ O.P.(C.A.T).No.2528 OF 2011 ------------------------------------------- Dated this the 10th day of August, 2011 J U D G M E N T ~~~~~~~~~~~ P.S.Gopinathan, J. The petitioners are the respondents in O.A.No.709/2007 on the file of the Central Administrative Tribunal, Ernakulam Bench. The respondent herein is the applicant. He has been working as Gramin Dak Sevak Mail Deliverer (GDS MD) since 15.1.1997 under the petitioners. Since August 2006, he is officiating as a Casual Driver (Omni) under the 4th petitioner. 75% of the vacancies of the drivers arising in the department, as per the recruitment rules, shall be filled up by direct recruitment and remaining 25% vacancies are to be filled up from among the departmental candidates in the scale of pay below that of motor/lorry drivers. In 2004, the petitioners notified a vacancy for appointment against direct recruitment and it was filled up in 2007. The respondent and other applicants were not considered. While so, the 4th petitioner by Annexure-A1 dated 7.11.2007 notified one vacancy for the post of Jeep Driver. As per Annexure-A1, only Group-D officials with O.P.(C.A.T) No.2528/2011 2 three years regular service is shown eligible to apply for the same. According to the respondent, the notification issued is in contravention of the post and telegraph manual, copy of which was produced before the Tribunal as Annexure-A2. The respondent submitted Annexure-A3 application to consider him for the vacancy of the Driver for promotion against departmental quota with a plea that he is eligible to be considered as a departmental candidate. He had also quoted previous instances whereby the GDS were appointed as drivers against departmental quota. However, the petitioners were not agreeable to concede. With these pleadings, the respondent moved the Tribunal below seeking an order to quash Annexure- A1 notification to the extent it excludes GDS with requisite qualification, experience and eligibility for being considered for promotion/appointment as Driver and also a declaration that the respondent is entitled to be considered for promotion/appointment as against the vacancy of the Jeep Driver. O.P.(C.A.T) No.2528/2011 3 2. The petitioners contended that only Group-D officials alone are entitled to be considered and that the respondent being a GDS is not entitled to be considered for appointment under the departmental quota. 3. The Tribunal below arrived at a finding that casual labourers are permitted to apply. The respondent, being a GDS, is in a better position than a casual labourer for being appointed as a Driver and that since he has been doing the job of driver as casual labourer on temporary status he is entitled to be considered for the post of Driver. Accordingly, the petition was allowed. The petitioners were directed to proceed with the selection and in the event of not finding a suitable Group-D employee, to consider the appointment of the respondent to the post of the Driver. Assailing the order dated 24.2.2009, this petition under Article 227 of the Constitution of India was filed. 4. We have heard Sri.P.Parameswaran Nair, Assistant Solicitor General of India and perused the impugned order as well as the documents produced. It is not in dispute that O.P.(C.A.T) No.2528/2011 4 vacancy notified is to be filled up by departmental candidate. It is also not disputed that though the respondent is a GDS, for the last more than 5 years, he has been officiating as a casual driver under the 4th respondent. If the stand of the petitioners is given regard, the respondent cannot be posted as a Casual Driver, but he was ordered to work as a Casual Driver for the last more than five years in contravention of the rule. By the same time, the petitioners are opposing his claim for regular appointment. We find no logic. As per Column No.11 of the recruitment rules, the persons holding Group-C and Group-D posts having 3 years regular service in the eligible cadre in the unit of recruitment with scale of pay lower than that of the Driver possessing valid driving licence for light and heavy motor vehicles are entitled to be considered on the basis of driving test to assess their competency. Note 2 stipulates that if no suitable persons are available in the unit of recruitment eligible persons working in other unit of the recruitment but within the same telephone district or telecommunication/telectrical circle/civil circle shall be considered for recruitment by transfer failing which by direct recruitment. For easy reference we quote Col.11 with Note 2. O.P.(C.A.T) No.2528/2011 5 “11. By transfer of persons holding Group-C and Group-D posts having 3 years regular service in the eligible cadre in the unit of recruitment and whose scale of pay is lower than that of Driver and possessing valid driving licence for light and heavy motor vehicles selection shall be made from amongst candidates possessing the above qualifications and licence on the basis of driving test to assess their competency to drive light and heavy vehicles. ............. ................ ................ .............. ............... ................. Note-2: If no suitable persons are available in the unit of recruitment eligible persons working in other unit of recruitment but within the same telephone district or telecommunication/telectrical circle/civil circle shall be considered for recruitment by transfer failing which by direct recruitment.” Note 2 in Column No.11 quoted above would show that the respondent, though a GDS, who was working as Driver on casual basis for the last five year, is entitled to be considered for recruitment by transfer. The Tribunal below had meticulously considered the rival contentions and found that Note 2 would O.P.(C.A.T) No.2528/2011 6 cover the respondent also. We fail to find any error, illegality, perversity or arbitrariness in the order impugned. In fact, we are at dark why the department has come up with this petition expressing reluctancy to consider the application of the respondent to the post of Driver despite the fact that the respondent had been working as a casual Driver for the last five years. We find no merit in the petition. Accordingly, it is dismissed. (C.N.RAMACHANDRAN NAIR, JUDGE) (P.S.GOPINATHAN, JUDGE) ps/4/8