IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE EIGHTEENTH DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH AND THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No: 19221 of 2009 BETWEEN: The Post Master General, A.P. Circle, Hyderabad and three others. ... PETITIONERS AND M. Santosh, Occ: Branch Manager, Mukhra BO, a/w Echoda So., Bazarhatnoor, Adilabad. ...RESPONDENT Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue an order or direction more particularly one in the nature of Writ of Certiorari, call for the records with regard to order dated 11.12.2008 in O.A.No.488 of 2007 of the Hon’ble Central Administrative Tribunal, Hyderabad Bench, Hyderabad and quash the same as illegal, arbitrary, contrary to law and unconstitutional and pass such other order or orders as this Hon’ble Court deems fit and proper in the interest of justice. Counsel for the Petitioners: MR. A. RAJASHEKAR REDDY ASST. SOLICITOR GENERAL OF INDIA Counsel for the Respondent: The Court made the following: ORDER: (per Hon’ble Sri Justice Vilas V. Afzulpurkar) The Post Master General and three others, who are respondents in O.A.No.488 of 2007 before the Central Administrative Tribunal, have questioned the order of the tribunal dated 11.12.2008 passed in the aforesaid OA. 2. The facts, in brief, are as follows: (a) The petitioners herein issued a notification to fill up the vacant posts of Gramin Dak Sevak Branch Post Master vide notification dated 08.06.2006 calling for applications from the eligible candidates. Several candidates applied including the respondent herein. One Mr. M. Raja Narsaiah was selected for appointment for the said post and he was informed to contact SDI (P), Nirmal Sub- Division. However, even after lapse of more than a month and after a notice dated 05.10.2006 informing him to respond to the selection, there was no response from the said selected candidate. The notice dated 05.10.2006 sent by the petitioners was returned with the endorsement “the addressee refused”. Thereupon the respondent herein, who was next in the selected list, was selected in the place of the said M. Raja Narsaiah and instructions were issued to SDI (P), Nirmal Sub-Division to hand over charge of the said post to the new appointee. Accordingly, the respondent herein secured charge on 10.11.2006 pending verification of character and antecedents and other formalities and was working as Branch Post Master, as aforesaid. (b) It appears, however, that the first petitioner reviewed the appointment and on finding that there was no provision for operating awaiting list, directed cancellation of the selection of the respondent herein and directed that process of selection of Branch Post Master post be taken afresh. Based on the said decision of the first petitioner herein, an office order dated 22.06.2007 was issued to the respondent herein duly intimating that on expiry of one month period i.e. 25.07.2007 his appointment shall stand terminated. Questioning the said order the present OA is filed by the respondent. (c) The Central Administrative Tribunal considered the contentions on behalf of the petitioner and the respondent herein. It was also brought to the notice of the tribunal that in the earlier Full Bench judgment of the tribunal in O.A.No.1315 of 2000 dated 12.04.2001 wherein, in a similar situation the tribunal had directed that instead of resorting to fresh selection and fresh notification, to avoid inordinate delay and affecting smooth running of the department, in the event of refusal of selected candidate to join the post, the department was directed to maintain a panel with validity of one year and operate such panel in such contingencies. In the present case also, the tribunal found that similar situation exists as the selected candidate has refused to join and as such, the action of appointing the respondent herein, who was next in the waiting list, was justified and there was no need to resort to fresh selection every time a selected candidate refuses to join. The tribunal, therefore, had allowed the OA and directed continuation of the respondent herein in terms of the order dated 10.11.2006 by setting aside the impugned order. The tribunal, however, held that the respondent shall not be entitled to backwages for the period of absence from the date of termination till the date of reinstatement and that period shall be treated as no work no pay without break in service. 3. We have heard the learned Assistant Solicitor General, who has reiterated the submissions as made before the tribunal. 4. Learned Assistant Solicitor General has brought to our notice that the Full Bench judgment rendered by the tribunal, which is referred to in the impugned order related to old rules, which dealt with the appointment of Extra-Departmental Agents (Branch Post Masters). The earlier rules are described as the Posts and Telegraphs Extra-Departmental Agents (Conduct and Service) rules, 1964. The term Extra- Departmental Agent is defined therein as to include: 2 (a)… (b) “Extra-Departmental Agent” means – (i) an Extra-Departmental Sub-Postmaster; (ii) an Extra-Departmental Branch Postmaster; (iii) an Extra-Departmental Delivery Agent; (iv) an Extra-Departmental Mail Peon; (v) an Extra-Departmental Letter Box Peon; (vi) an Extra-Departmental Mail Carrier or Runner; (vii) an Extra-Departmental Packer; (viii) an Extra-Departmental Messenger; (ix) an Extra-Departmental Chowkidar; (x) an Extra-Departmental Stamp Vendor; (xi) an Extra-Departmental Sorter in the Railway Mail Service; (xii) an Extra-Departmental Sub-Record Clerk in the Railway Mail Service; (xiii) an Extra-Departmental Porter; Their method of recruitment is provided under Section III of the said Rules as follows: Section III Method of Recruitment (1) Instructions regarding selection.- The question of consolidating various instructions issued form time to time governing the appointment and other service conditions of ED Agents has been engaging the attention of this Directorate. After careful examination of all aspects of employment of ED staff, it has been decided to observe the following instructions scrupulously while making selection of ED Agents: - 1. Age: The minimum age-limit for employment as ED Agent will be 18 years and maximum age up to which an ED Agent can be retained in service will be 65 years. The Director-General, Posts and Telegraphs, may consider relaxation of this age-limit in exceptional cases. 2. Educational Qualifications: ED Sub-Postmasters and ED Branch Postmasters: Matriculation. [The selection should be based on the marks secured in the Matriculation or equivalent examinations. No weightage need b e given for any qualification(s) higher than Matriculation.] ED Delivery Agents ED Stamp Vendors and All other Categories of EDAs. VIII Standard. Preference may be given to the candidates with Matriculation qualifications. No weightage should be given for any qualification higher than Matriculation. Should h a v e sufficient working knowledge of the regional language and simple arithmetic so as to be able to discharge their duties satisfactorily. Categories such as ED Messengers should also have enough working knowledge of English. Apart from the above, under Rule 4 of Section III, such person was required to be a permanent resident of the village where the post office is located and there were other rules which required a security to be furnished by such ED Agents etc. 5. The aforesaid rules are placed before us to show that there is no provision for maintaining or operating a panel or awaiting list. The aforesaid rules have undergone amendments and the present rules governing these posts are called Department of Posts, Gramin Dak Sevak (Conduct and Employment) Rules, 2001. The definition of Gramin Dak Sevak under Rule 3(c) is as follows: 3. (a)… (b)… (c) “Gramin Dak Sevak” means – (i) a Gramin Dak Sevak Sub- Postmaster; (ii) a Gramin Dak Sevak Branch Postmaster; (iii) a Gramin Dak Sevak Mail Deliverer; (iv) a Gramin Dak Sevak Mail Carrier; (v) a Gramin Dak Sevak Mail Packer; (vi) a Gramin Dak Sevak Mail Messenger; (vii) a Gramin Dak Sevak Mailman; (viii) a Gramin Dak Sevak Stamp Vendor; It would be evident that it is similar to the definition of Extra-Departmental Agent under previous rules. The method of recruitment also is similarly provided under Section IV of the amended Rules. Relevant rules are extracted hereunder: Section IV Method of Recruitment (1) Instructions regarding selection.- The question of consolidating various instructions issued form time to time governing the appointment and other service conditions of ED Agents has been engaging the attention of this Directorate. After careful examination of all aspects of employment of ED staff, it has been decided to observe the following instructions scrupulously while making selection of ED Agents: - 1. Age: The minimum age-limit for employment as ED Agent will be 18 years and maximum age up to which an ED Agent can be retained in service will be 65 years. The Director-General, Posts and Telegraphs, may consider relaxation of this age-limit in exceptional cases. 2. Educational Qualifications: ED Sub-Postmasters and ED Branch Postmasters: Matriculation. [The selection should be based on the marks secured in the Matriculation or equivalent examinations. No weightage need b e given for any qualification(s) higher than Matriculation.] ED Delivery Agents ED Stamp Vendors and All other Categories of EDAs. VIII Standard. Preference may be given to the candidates with Matriculation qualifications. No weightage should be given for any qualification higher than Matriculation. Should have sufficient working knowledge of the regional language and simple arithmetic so as to be able to discharge their duties satisfactorily. Categories such as ED Messengers should also have enough working knowledge of English. Even under these rules there is no provision for making a panel or operating awaiting list. 6. The learned Assistant Solicitor General, therefore, submits that in the absence of any provision in the rules, the department had no option but to go for fresh selection and as such, the said action cannot be said to be either arbitrary or impermissible in law. Learned counsel, therefore, submits that the direction of the tribunal following the earlier Full Bench judgment of the tribunal referred to above is not applicable to the present case as the order of appointment passed in this case in favour of the respondent herein was not permissible under the rules. 7. It is, no doubt, true that the earlier rules or the amended rules do not contain any provision for making a panel or awaiting list. However, it cannot be denied that applications were called for by notification and several candidates applied therefor including the respondent herein. The petitioners, however, have preferred the selection of Mr. M. Raja Narsaiah in preference to the respondent herein. However, when the selected candidate did not respond to the intimation of selection and to the notice requiring him to take charge, the next person in the list viz. the respondent herein, was directed to take charge and was appointed under his provisional selection order dated 10.11.2006 subject to verification of his character, antecedents and other formalities. However, under the impugned order aforesaid selection was sought to be withdrawn by giving one month’s notice and fresh process of selection was envisaged. The selection considered by the tribunal in the earlier Full Bench judgment referred to above was under similar circumstances. It is not in dispute and it is specifically admitted in Para 2.2 of the reply filed by the petitioners before the tribunal that the respondent herein was the next meritorious candidate and as such, he was appointed under the order dated 10.11.2006. The petitioners did not point out any infirmity in the selection of the respondent herein except stating that under the rules there is no provision of making a panel or awaiting list and that there is no other option except to go for fresh selection. The view of the tribunal on earlier occasion under the earlier rules, which is extracted in the order impugned herein, was rightly followed by the tribunal in the present case. The said part of the direction of the tribunal is as follows: “21. Considering all these facts an circumstances we fell that the department should prepare panel even for selection to the post of ED Agents under the P&T EDA (Conduct and Service) Rules, 1964. The size of the panel shall not be disproportionate to the number of posts. The validity period of the panel shall be one year. CPMG may give suitable instructions in this behalf basing upon the observations made by the Patna Bench of this Tribunal cited above on the point noted at P3(b) above.” 8. The contentions of the petitioners cannot be accepted for the reason that even after issuing fresh notification, if the newly selected candidate does not join, again fresh selection has to be repeated and the purpose for which the recruitment is being made for providing post offices in the rural areas at the village level would stand defeated till the selected candidate in a particular selection joins the post. It is for this reason that earlier the tribunal had held that the department must make a panel and operate awaiting list in case of contingencies when the selected candidate has not joined the post. We are in complete agreement with the aforesaid view of the tribunal. 9. The selection procedure as per the rules has been followed and though it is one post, which is required to be filled, the short-listing of candidates for the said post is certainly permissible in order to ensure that the selection process is complete by the selected candidate joining the post. Thus, if the first preference candidate, who is selected, does not join, there is no illegality and there is nothing wrong in requiring the second preference candidate to join in the post. The respondent herein being meritorious candidate after the first preference candidate, on account of the first candidate not joining, the respondent herein was offered and he has joined and worked from 10.11.2006. The impugned order dated 22.06.2007 terminating his appointment was, therefore, not justified and was rightly set aside by the tribunal. No ground, therefore, is made out warranting interference with the impugned order and the said order does not suffer any factual or legal error or infirmity warranting interference by this Court under Article 226 of the Constitution of India. The writ petition is accordingly dismissed. There shall be no order as to costs. ______________ V. ESWARAIAH, J _____________________ VILAS V. AFZULPURKAR, J September 18, 2009 DSK