IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTIETH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE C.V.RAMULU WRIT PETITION NO : 4594 of 2006 Between: 1 The Sr.Supdt.of Post Offices, Prakasam Postal Dn. Ongole. 2 The Assistant Superintendent of Post Offices, Kandukur, Prakasam District. 3 The Postmaster General, Vijayawada Region, Vijayawada. 4 Union of India represented by the Secretary to the Department of Posts, New Delhi. ..... PETITIONER(S) AND Sri B.China Malakondaiah, s/o Kondaiah, EDMC/DA, kondasamudram, A/W V.V.Palem, Kandukur, HO Prakasam Postal Division, Ongole. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue preferably a writ in the nature of certiorari or any appropriate writ, order or direction, calling for the records pertaining to order dated 30-11-2005 in OA No.1152 of 2003 on the file of Hon'ble Central Administrative Tribunal, Hyderabad Bench, Hyderabad and quash the same or pass such further or other order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. Counsel for the Petitioner:MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) Counsel for the Respondent No.: MR.K.GOVIND The Court made the following : Form-NIC-OGS/WP{RS} THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE C.V.RAMULU WRIT PETITION No.4594 OF 2008 ORDER (Per Hon’ble Sri Justice Ghulam Mohammed): This writ petition is filed seeking to issue a Writ of Certiorari to quash the decision rendered by the Central Administrative Tribunal, Hyderabad Bench, in O.A.No.1152 of 2003, dated 30-11-2005. 2. The brief averments which are necessary for disposal of the writ petition are that:- The applicant-respondent herein was appointed as Grameena Dak Sevak Mail Carrier/Deliverer (GDS MC/MD) of Kondasamudram Branch Post Office, account with V.V. Palem Sub Post Office, with effect from 20-02-1997 on temporary basis in place of a regular official who absconded from duty on 17-02-1997. As a result, the respondent was appointed as GDS MC/MD, without following the guidelines. As per the letter No.17- 115/2001-GDS, dated 21-10-2002, issued by the Director General, all the vacancies in GDS Cadre are to be managed on combination of duties engaging regular GDS officials and no substitute or provisional arrangement is to be made for the posts. Accordingly, the services of the respondent were terminated on 19-08-2003. Aggrieved by the same, the respondent filed O.A.No.1152 of 2003 before the Central Administrative Tribunal, Hyerabad, seeking a relief to set aside the termination order dated 19-08-2003 and to absorb him into service in terms of the judgment in O.A.No.924 of 1999, dated 28-07-1999. Before the Tribunal the applicant- respondent contended that the Tribunal earlier had an occasion to consider the scope of the above mentioned letter dated 21-10-2002 in O.A. No.1942 of 1999 and had directed the respondents therein to consider the case of the applicant for absorption as he had completed four years five months service on provisional basis. In the present case, the applicant was provisionally appointed in the vacancy caused due to absconding of a permanent incumbent, who has committed fraud. As per the instructions in DGs letter dated 23-02-1979, the benefit should be extended to the applicant by appointing him in the list of thrown out candidates. The action of the respondents authorities in dislodging the applicant, in the guise of combination of duties, ordered by letter dated 19-08-2003, even without notice, is arbitrary and illegal. 3. The respondents-authorities have contended that the applicant was appointed only on a temporary basis and that his appointment cannot be termed as provisional since while appointing him, the prescribed procedure was not followed and therefore, the instructions referred to by him are not applicable. 4. After considering the entire material available on record and after hearing the arguments of the learned counsel for the parties, the Tribunal allowed O.A. Aggrieved by the same, the present writ petition has been filed. 5. Heard both sides. 6. The learned counsel for the respondents-authorities contended that the applicant was appointed as a GDS MC/MD on temporary basis in place of a regular official, who absconded from duty. The respondent-applicant continued in the post until termination of his services on 20-08-2003. In view of the directions contained in DGP & T letter dated 21-10-2002 (Annexure-1), all vacancies in the GDS cadre are to be managed on combination of duties and no substitute on provisional basis has to be made for the posts and accordingly the services of the applicant were terminated. Applicant’s request for regular appointment or for alternative employment cannot be considered as he was not appointed to the post by following the prescribed procedure. 7. The learned counsel for the respondent-applicant contended that the Rules prescribed in the year 1979 are not applicable to the facts of the present case to terminate the applicant from services since the applicant was initially appointed in the year 1997 and continued for five years and six months. He further contended that in terms of the judgment in O.A.No.1642 of 2003 as confirmed by this Court in W.P.NO.2033 of 2005, and also the judgment in O.A.No.924 of 1999, dated 28-07-1999, the case of the applicant has to be considered and order under impugned is correct. 8. The Tribunal after considering the material placed on record held that once the services of the applicant are treated as provisional, the short question to be decided is only whether the instructions in DGs letter dated 23-02-1979 and subsequent instructions contained the DGs letter dated 21-10-2002 are applicable in that case or not. According to the instructions in the circular dated 17-12-1979 such provisional appointments were being made and continued indefinitely. The said instructions were taken into consideration by this Court while disposing of W.P.No.2033 of 2005 and the relevant portion in the said judgment reads as under: “Efforts should be made to give alternative employment to the ED agents who are appointed provisionally and subsequently discharged from service due to administrative reasons, if at the time of discharge they had put in not less than three years continuance approved service. In such cases their names should be included in the waiting list of E.D. agents discharged from service prescribed in D.G.P & T letter dated 23-02-1979.” The applicant clearly falls in the category of those provisional appointees who have put in not less than three years continuous approved service. The Tribunal has also gone through the guidelines of regulating substitute/provisional arrangements made in place of regular GDS. The Tribunal, for better appreciation, quoted para-12 of the guidelines with regard to the procedure to be followed for regulating the provisional appointments already made, which reads as under: “12. The extant provisions provided for a provisional appointee to be placed on the waiting list for being considered for a regular appointment after he or she has completed three years of continuous employment. To avoid continuation of such provisional appointments, approval of the next higher authority should be taken in respect of al provisional appointments exceeding 180 days and where it exceeds one year, express approval of the head of that region/circle as the case may be would be necessary. Where the regular incumbent is not reinstated, immediate action must be taken to regularize the regularly selected provisional appointees against the said post without resorting to fresh recruitment.” 9. The Tribunal further held that the applicant is clearly entitled to such a treatment in terms of the departmental instructions, instead of being thrown out summarily, after having worked for more than six years. Further, the principle adopted by it in the judgment in O.A.No.1642 of 2003 and upheld by this Court in W.P.NO.2033 of 2005, has to be applicable in the case of the applicant in this O.A. also. Accordingly, the Tribunal has declared that the applicant is entitled to be placed in the waiting list of thrown out candidates as prescribed in D.G.P. & Ts letter No.43- 4/77Pen dated 23-02-1979 and Circular dated 30-12-1999 on the basis of his uninterrupted provisional service of more than six years. Consequently, directed the respondents to consider the applicant for alternative employment in future vacancies as and when his turn comes. 10. We have given our earnest consideration to the respective submissions made by the learned counsel on either side and perused the impugned order and material made available on record. We are of the opinion that Tribunal rightly allowed the O.A. by giving cogent and convincing reasons. No grounds are made out to call for interference by this Court under Article 226 of the Constitution of India. The Writ Petition is devoid of merits and liable to be dismissed. 11. Accordingly, the writ petition is dismissed. No costs. ______________________________ JUSTICE GHULAM MOHAMMED June 20, 2008 ___________________________ JUSTICE C.V.RAMULU kvr